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[2025] ACTSC 339
mixed. Guilty verdicts were entered on counts 1 to 28. Not-guilty verdicts were entered on counts 29 to 208 other than counts 120, 121, 122, 125 and 144, for which nolle prosequis had been entered. The...
Maher faced 208 theft counts arising from activity on Genter's bank accounts. The judge found the evidence proved that Maher made unauthorised withdrawals in Canberra between late January and March 2018, while Genter was in hospital, and used the money for his own purposes. The bank records and the complainant's evidence supported those findings. The judge was not satisfied beyond reasonable doubt about the later transactions, in part because the complainant's recollection and understanding of the financial arrangements were unreliable on relevant points. Maher was convicted on 28 counts and acquitted on the remaining counts that proceeded to verdict.
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1,882 words · generated 02/10/2026
In DPP v Maher [2025] ACTSC 339, Kelly AJ conducted a judge-alone trial after Jonathan Maher elected that mode of trial under s 68B of the (ACT) [1]. Maher faced 208 counts of theft under s 308 of the (ACT), concerning transactions in Sean Genter’s bank accounts between January 2018 and September 2019 [2].
1 cited instrument linked from this judgment.
Genter had become a quadriplegic after an accident in September 2017 and required ongoing care [45]. He was in Prince of Wales Hospital from October 2017 to August 2018, and again from 1 to 27 March 2019 [30]. Maher and Genter had been friends. Their arrangements developed to include Maher helping with Genter’s care and finances, and later living with him. Genter appointed Maher as his attorney on 22 June 2018 [29]. A second account, holding compensation funds, was opened on 19 July 2018 with Maher signing on Genter’s behalf as attorney [32].
The judge treated counts 1 to 28 differently from the later counts. Those 28 counts concerned withdrawals made in Canberra between 29 January and 22 March 2018, when Genter was in hospital during his first admission. They occurred before the power of attorney was signed and before the Torrens property was leased [76, 82]. Kelly AJ found that Maher made those withdrawals, without Genter’s authorisation, for his own purposes [87-91].
The prosecution conceded that a number of other charges could not be proved beyond reasonable doubt. It also entered nolle prosequis on counts 120, 121, 122, 125 and 144, acknowledging that those counts were charged in error or concerned a transaction wholly in New South Wales [14-15]. The judge found Maher not guilty on the other counts that remained for decision [92]. The overall result was therefore 28 guilty verdicts and not-guilty verdicts on the remaining counts that proceeded to verdict.
The court’s reasoning is notably count- and period-specific. Kelly AJ accepted Genter as an honest witness, but did not treat that as meaning every recollection or identification of a transaction was accurate [63]. The judgment explains why some evidence was sufficiently reliable to prove the early transactions, while the evidence about later transactions left reasonable doubt.
The parties agreed on the elements of theft. In summary, the prosecution had to establish appropriation of property belonging to another, the required fault elements, dishonesty according to ordinary standards that the accused knew was dishonest, and an intention permanently to deprive [4]. The prosecution bore the burden of proving every charge beyond reasonable doubt [6]. For the circumstantial case, guilt had to be the only conclusion reasonably open on the evidence [13].
For counts 1 to 28, several strands of evidence combined. Genter said he had not authorised the transactions. Although his evidence about the timing of discussions and the bank card was unclear, the judge accepted his denial of authorisation for the early transactions as reliable and credible [71]. The transactions occurred before the power of attorney, and the judge found that discussions about Maher assisting with finances had not yet occurred at the time of these withdrawals [76, 81].
The timing and pattern of the withdrawals also mattered. Maher’s bank records showed salary payments followed by substantial cash withdrawals from his own account. Withdrawals from Genter’s account tended to occur when Maher’s own balance had been depleted [38-44]. The judge accepted that this pattern supported the prosecution’s submission that Maher withdrew Genter’s money for his own purposes [44]. The records also supported the finding that Maher had the card during the relevant period, and that the Canberra transactions were made by him [79-89].
The judge rejected the suggestion that those withdrawals related to preparations for the shared home. The property had not yet been leased, and the transactions included repeated cash withdrawals, sometimes multiple withdrawals on the same day. There were no similar withdrawals from Genter’s account in the period leading up to the lease [82-86]. The judge considered the pattern inconsistent with the proposed home-expense explanation.
For the later counts, the evidence presented a different reliability problem. Genter’s first written statement to police was made in August 2020, and he was not taken through bank records to identify transactions until January 2023 [65-68]. The judge also considered evidence that Genter and Maher regularly consumed alcohol and marijuana and were often intoxicated [69]. In addition, Genter’s evidence about when the card was held, what was said about financial support, and what authority he had given was uncertain [70]. The court could accept some portions of his evidence while treating other portions as unreliable [7, 63].
The evidence concerning the March 2019 transactions did not overcome those concerns. Although the judge strongly suspected dishonesty, suspicion did not satisfy the criminal standard. The judge could not be sure beyond reasonable doubt that the transactions were unauthorised and dishonest [18-23]. The judgment therefore demonstrates the difference between a persuasive suspicion and proof meeting the stated standard.
The judgment does not announce a new legal test or purport to change the law of theft. The legal framework applied was the set of theft elements agreed by the parties, the criminal standard of proof, and the circumstantial-evidence direction set out in the reasons [4, 6, 13]. The decision applies those principles to the specific evidence and counts before the court.
Before the decision, the relevant statutory provision was s 308 of the Criminal Code 2002 (ACT), and the required theft elements were as recorded at para 4. Section 68B of the Supreme Court Act 1933 (ACT) enabled the judge-alone trial following Maher’s election [1]. The reasons also set out safeguards relevant to the fact-finding task: the accused was presumed innocent, the prosecution retained the burden, and no adverse inference could be drawn from the accused’s decision not to give evidence [6, 9].
After the decision, those stated legal principles remained the framework used in the judgment. The case supplies an example of their application to a prosecution relying on documentary banking material and a critical complainant witness whose reliability varied across periods and topics. The result should not be read as establishing that particular spending patterns invariably prove theft, or that delayed recollection necessarily makes a witness unreliable. Kelly AJ assessed the whole evidence, including its timing and context, in this trial.
The judgment text provided contains no citations to earlier cases and no discussion of subsequent decisions. It is therefore not possible from this source alone to identify any precedents applied, followed, distinguished or overruled, or to say how later courts have treated this decision.
At para 13, the judge stated that the prosecution had to prove “that the conclusion of guilt is the only conclusion reasonably open on the evidence.” In plain English, where the prosecution relies on circumstances rather than direct evidence of every step, a guilty finding requires those circumstances to rule out any reasonable alternative conclusion.
At para 71, the judge said: “I accept that the complainant’s evidence is both reliable and credible.” This finding was deliberately limited to the January-to-March 2018 transactions. It did not mean that every part of Genter’s evidence about every later transaction was accepted.
At para 89, Kelly AJ concluded that “the only rational inference to be drawn” was that Maher made the Canberra withdrawals. That finding followed consideration of the bank records, the transaction locations, the card evidence and the timing.
At para 22, the judge explained that, despite strong suspicion about three March 2019 transactions, she could not be satisfied beyond reasonable doubt. The plain-English point is that suspicion, even strong suspicion, is not a substitute for proof to the criminal standard.
At para 9, the judge directed herself that she could not use Maher’s silence “to fill any gaps in the prosecution case”. The verdicts had to rest on the prosecution evidence, not on speculation about what Maher might have said.
The case is most relevant as an example where a theft prosecution concerns repeated account withdrawals, the alleged offender had access to the card, and bank records can be compared with the accused’s own financial activity. Here, the court relied on the coincidence between the depletion of Maher’s salary funds and the timing of withdrawals from Genter’s account, together with the locations and pattern of transactions [38-44, 87-89].
The distinction between the early and later periods is central. In the early period, the transactions predated the power of attorney and the alleged shared financial arrangements. Genter was hospitalised, and the judge accepted his denial of authorisation for those transactions [71, 76-86]. The decision may therefore be informative where disputed transactions occurred before any documented authority or agreed financial arrangement.
By contrast, where a complainant has given an accused access to accounts for care, household expenses or bill payment, the existence and scope of that authority can make transaction-by-transaction proof more difficult. The judgment does not establish a general rule about powers of attorney or cohabitation. It shows that those contextual arrangements mattered to the assessment of the later counts, and that uncertainty about instructions and authorisation can contribute to reasonable doubt [20-23, 49-61].
The judgment may also be relevant to cases where identification of transactions occurs years after the events, or where a witness is honest but has an uncertain memory. It illustrates that the fact-finder can assess reliability separately for different periods and issues, rather than accepting or rejecting the witness’s evidence as a whole [7, 63-74].
The supplied judgment contains no material about later judicial treatment, and no subsequent cases or legal sources have been provided. It is therefore not possible to report that later courts have followed, distinguished, applied or criticised DPP v Maher.
The judgment itself contains no cited case authorities in the reproduced text. Its analysis rests on the statutory provisions identified in the judgment, the parties’ agreed statement of theft elements, the evidence and the judge’s directions on proof and fact-finding [1-13]. Any assessment of the decision’s subsequent precedential treatment would require later judgments or an authoritative case-law source not included here.
The reasons resolve the verdicts on the counts tried, but do not establish general rules for all cases involving a power of attorney, shared household expenses or informal permission to use a bank card. They do not define the scope of Maher’s authority after June 2018 beyond the judge’s assessment of the evidence relevant to the charges [20-23, 29]. Nor do they decide the legality or effect of any broader financial arrangement between the parties.
The decision also leaves open how other courts might assess similar bank-record patterns when there is different evidence about income, spending, card access, or the purpose of withdrawals. Kelly AJ treated the financial pattern as powerful evidence in conjunction with the complainant’s accepted evidence, not as a standalone universal test [38-44, 87-90].
Finally, the judgment does not address how later courts have treated it. That question cannot be answered from the reasons reproduced here. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Maher Citation: [2025] ACTSC 339 Hearing Dates: 30 June; 1 - 4 and 18 July 2025 Decision Date: 1 August 2025 Before: Kelly AJ Decision: (1) I am satisfied beyond reasonable doubt that the accused committed each of the offences of theft in counts 1 to 28. I find him guilty of those counts. (2) As to the balance of offences numbered from counts 29 to 208 (excluding counts 120, 121, 122, 125 and 144 in respect of which nolle prosequis have been entered), I find the accused not guilty.
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – 208 counts of theft – unauthorised use of credit cards between January 2018 and September 2019 – where accused appointed as complainant’s power of attorney – where accused and complainant co-habiting – bank records – factors affecting reliability of complainant’s evidence Legislation Cited: Criminal Code 2002 (ACT), s 308 Supreme Court Act 1933 (ACT), s 68B Parties: Director of Public Prosecutions (Crown) Jonathan James Maher (Accused) Representation: Counsel E Wren (DPP) E Chen (Accused) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Accused) File Number: SCC 398 of 2024 KELLY AJ: Introduction
This is a trial by judge alone after the accused Jonathan James Maher signed an election on 24 April 2025 to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT).
The accused is charged with 208 counts of theft, contrary to s 308 of the Criminal Code 2002 (ACT). Each count relates to transactions which occurred between January 2018 to September 2019 in the complainant’s bank accounts.
As the accused elected to be tried by judge alone, my judgment must include the principles of law applied by me, and the findings of fact on which I rely. Additionally, I am required to take into account any warning or direction that might be given to a jury when considering their verdict.
It was common ground between the parties at trial that the elements of theft are as follows. • The accused appropriated something (physical element of conduct). • The accused intended to appropriate something (default element of intention). • Something that is appropriated is property (physical element of circumstance). • The accused is reckless as to the fact that what is appropriated is property (default element of recklessness). • The property belongs to another person (physical element of circumstance). • The accused was reckless as to the fact that the property belongs to another person (default fault element of recklessness). • The appropriation is dishonest according to the standards of ordinary people (physical element of circumstance). • The accused knows the appropriation is dishonest according to the standards of ordinary people (fault element supplied by legislation). • At the time the accused appropriates the property, the accused intends to permanently deprive the person to whom the property belongs of the property.
General directions
I have taken the following directions, which are applicable in all criminal trials into account in reaching my verdicts. Onus and standard of proof
The prosecution bears the onus to prove the guilt of the accused. The accused is presumed innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. I must find him not guilty if the evidence which I accept fails to satisfy me beyond reasonable doubt of the accused’s guilt.
Fact finding and inferences
The facts I find must be based on the evidence. I must bring an open and unbiased mind to that evidence. I must view the evidence clinically and dispassionately and I must not let emotion enter the decision-making process. The prosecution and the accused are entitled to a verdict free of partiality, prejudice, favour or ill will. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event, about which the witness has given evidence. I must determine the facts according to the evidence, considering it logically and rationally. I may use my common sense, my individual experience and wisdom in assessing the evidence. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness said if I consider none of it worthy of acceptance, or I can accept part of what a witness says and reject other parts of what that witness says. A witness can be truthful but wholly unreliable and a witness can be truthful, but partly unreliable.
I may draw inferences from the facts that I find have been established by the evidence. I must examine any possible inference to ensure that is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference on the circumstances.
The accused did not give evidence
The accused did not give evidence in these proceedings. There is no obligation upon him to give or to call evidence in a criminal trial. I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing and make the prosecution prove his guilt according to the onus it bears, namely, beyond reasonable doubt. I cannot use the absence of any evidence from the accused to fill any gaps in the prosecution case, nor can I use it to strengthen the prosecution case. I must not speculate about what might have been said in evidence if the accused had given evidence. In short, I cannot take into account the accused’s decision not to give evidence in any way. Evidence by audiovisual link
Several witnesses gave evidence from a location remote from the courtroom connected to the proceedings by audiovisual link. This is usual practice. I must not draw any inference adverse to the accused or attach any greater or lesser weight to the evidence of the witness because this practice was followed.
The complainant was the critical prosecution witness and the only prosecution witness to give any direct evidence in this matter. Therefore, I must examine his evidence carefully to satisfy myself that I can safely act upon his evidence to the high standard required in a criminal trial. I must be satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness as to the critical matters in dispute. As in any criminal trial where the prosecution relies solely or substantially on the evidence of a single witness, I must approach that evidence with particular caution because of the onus and standard of proof placed upon the prosecution. I will return to this direction later in these reasons as it will be apparent that in the circumstances of this matter the application of this direction has proved to be decisive in respect of a number of counts.
Circumstantial evidence
The evidence in this case is partly direct evidence and partly circumstantial evidence. The prosecution relies on the direct evidence of the complainant. However, the prosecution also relies on a number of circumstances in support of the direct evidence. The prosecution submits that the combined effect of the direct evidence and the additional circumstances is sufficient to establish the accused’s guilt beyond reasonable doubt in relation to 31 of the counts on the indictment.
The requirement for the prosecution to prove the guilt of the accused beyond reasonable doubt means that I must be satisfied and not only that the evidence shows the accused is guilty but that the conclusion of guilt is the only conclusion reasonably open on the evidence.
Analysis
At the outset, it is necessary to record a number of important concessions which the prosecution made in written submissions after the conclusion of the evidence in the trial. The prosecutor indicated that the following five counts on the indictment were charged in error: • Count 120: $5,000 withdrawal from account 78-2498, with a corresponding deposit into account 51-7027. • Count 121: $5,000 withdrawal from account 78-2498, with a corresponding deposit into account 51-7027. • Count 122: $5,000 withdrawal from account 78-2498, with a corresponding deposit into account 51-7027. • Count 125: $18,000 withdrawal from account 78-2498, with a corresponding deposit into account 51-7027. • Count 144: this transaction occurred wholly in New South Wales
The prosecutor undertook to enter a nolle prosequi in relation to those five counts and has since filed it.
The prosecutor made a further concession that the evidence at trial in respect of counts 29 to 116, counts 118 to 125, counts 127 to 204, and counts 206 to 208 is insufficient to satisfy the Court beyond reasonable doubt in respect of any of those charges. All of those counts relate to cash withdrawals and other transactions that occurred on the complainant’s accounts during periods of time when the complainant was not in hospital.
For reasons I will explain, I agree with the prosecutor’s submissions and verdicts of not guilty will be returned in respect of those counts.
There are three other counts which it is convenient to deal with now. Each of those counts arose out of transactions which occurred during the second period of time when the complainant was in the Prince of Wales Hospital in Randwick between 1 March and 27 March 2019.
The relevant withdrawals and transactions, the subject of those counts are set out below. • Count 117: on 4 March 2019, withdrawal of $700 at Southlands ATM (Mawson). • Count 205: on 8 March 2019, transaction of $211.80 at the Austrian club (Mawson). • Count 126: on 25 March 2019, withdrawal of $1000 at Southlands ATM (Mawson).
The prosecution argued that even though those transactions were made well after the power of attorney was signed on 22 June 2018 and the accused and the complainant had commenced living together at the Torrens house, I can nevertheless be satisfied beyond reasonable doubt that the complainant did not authorise these particular transactions, nor did the power of attorney authorise the accused to make these transactions. It was submitted that the power of attorney document did not authorise the accused to act in ways against the wishes or directions of the person to whom it relates.
The prosecution submitted that by March 2019, the complainant must have been fully aware that close to $200,000 had been depleted from the superannuation account on expenditure and that, even on the most generous assessment was significantly benefiting the accused. Additionally, it can be inferred that those particular transactions were made by the accused as they were all made in Canberra while the accused was in hospital and they were made dishonestly.
Facts about which there is no dispute
As the evidence unfolded, it became apparent that there is no dispute about a number of key dates during the relevant periods, including the following.
The power of attorney by which Mr Genter appointed the accused as his attorney was signed on 22 June 2018 having received legal advice as required by the terms of the document. Mr Genter acknowledged that the powers granted were not to be subject to any particular directions, limitations and conditions.
The complainant was an inpatient in the Prince of Wales Hospital from 10 October 2017 until 6 August 2018. He was again an inpatient at the Prince of Wales Hospital from 1 March 2019 until 27 March 2019.
The first periodical payment to Blewitt property in respect of the home leased at 1 Stevenson Street, Torrens by the accused and Mr Genter was made from the accused’s everyday account on 12 June 2018. Thereafter, that account was debited fortnightly during the relevant period until 17 September 2019 when an entry appears on the bank statement that a periodical payment was not made and the amount of five dollars was debited in respect of that non-payment.
On 19 July 2018, the accused opened a second account (the superannuation account ending 782498) with the assistance of the accused, who signed the opening account statement on behalf of the complainant as his attorney.
Next, the accused opened a TAB account number 2403121 in his own name on 28 April 2018. Two credit cards associated with that account were in the name of Sean Genter, namely cards numbered 3267 and 4003.
Exhibit 8 states the amount of bets placed on that account using Mr Genter’s card or cards in the years 2018 and 2019. That statement reflects a total of $132,217.50 was placed in the year 2018 and a total of $49,484.50 was placed in the year 2019.
I turn now to consider the first 28 counts, which all arise out of transactions which occurred whilst the complainant was in hospital during the first admission to the Prince of Wales between October 2017 and August 2018.
The evidence at trial The accused’s bank records during the period from 11 January 2018 to 25 March 2018
The prosecution tendered bank records of the accused during the relevant period (Exhibit 5).
These records provide some compelling support for the prosecution submission that during the period when the accused is alleged to have committed the offences in counts 1 to 28, the accused was in possession of Mr Genter’s bank card.
The following schedules tendered by the prosecution in submissions show that in days following the accused’s salary being deposited to his account, almost the entirety of it was withdrawn at an ATM, usually taking his balance to under $50 until the next pay period.
Set out below is the schedule (provided by the prosecution) showing withdrawal dates and amounts withdrawn from the accused’s account between 11 January 2018 and 25 March 2018.
Date salary paid Withdrawal dates Amounts withdrawn 11 January 2018 11 January 2018 $900 12 January 2018 $500 13 January 2018 $300 25 January 2018 25 January 2018 $900 25 January 2018 $358 26 January 2018 $300 27 January 2018 $250 8 February 2018 9 February 2018 $300 9 February 2018 $500 10 February 2018 $800 13 February 2018 $200 22 February 2018 23 February 2018 $500 24 February 2018 $800 25 February 2018 $300 26 February 2018 $100 27 February 2018 $100 8 March 2018 9 March 2018 $1000 12 March 2018 $500 13 March 2018 $100 15 March 2018 $100 22 March 2018 22 March 2018 $900 23 March 2018 $500 24 March 2018 $300 25 March 2018 $100
According to the bank records, the accused appears to have been employed as there are fortnightly deposits entitled “salary – payroll” for $1835.70”. Mr Genter during the relevant period was in receipt of fortnightly wages of $905.92.
Notably when the transactions ceased on Mr Genter’s card in March 2018, it appears from the accused’s bank records that he obtained a loan from an entity described as “MONEYME $6000”, which he then subsequently commenced to repay by direct debit in fortnightly instalments of $277.94 from 5 April 2018.
During the same period of time when money was withdrawn from Mr Genter’s account, it can be seen from the schedule (provided by the prosecution) that the accused did not have any money in his own account. Date range Number of transactions Accused’s balance from Mr Genter’s account when the withdrawals from Mr Genter’s account commence 29 January – 8 February 10 cash withdrawals $1.17 2018 14 February 2018 – 22 7 cash withdrawals $16.92 February 2018 1 March 2018 – 8 March 4 cash withdrawals $2.62 2018 16 March 2018 – 22 6 cash withdrawals $1.82 March 2018
From the above schedules taken from Exhibit 3 and Exhibit 5, it can be seen that after each time the accused’s salary was deposited into the account, there was a break in withdrawals from Mr Genter’s account. The withdrawals from Mr Genter’s account then recommenced when the accused’s salary had been depleted from his own account.
Mr Genter gave evidence in the trial that he was not aware of the transactions from his account and did not authorise them. The prosecutor submitted that these documents provide compelling support for the finding that the accused was going through large sums of money from his own account, and once that money had been depleted, he withdrew from Mr Genter’s account. The withdrawals from Mr Genter’s account only occurred when the accused’s account was depleted, which supports an inference that the accused was withdrawing money from Mr Genter’s account for his own purposes and not for any purposes associated with Mr Genter’s expenses at that time. I accept these submissions.
Mr Genter
Mr Genter explained that after the accident in September 2017 he became a quadriplegic. He now cannot use his hands to pick anything up. He can use a phone and operate his wheelchair. He can scratch his nose with his thumb but he cannot actually pick anything up. Consequently, he now requires constant care, 24/7.
He said he used to be close friends with the accused, who came to visit him in hospital approximately six weeks into his inpatient hospitalisation in 2017. Thereafter he came to see him approximately every second or third weekend. In cross-examination, Mr Genter agreed that the accused may have visited him as early as about three weeks after he was hospitalised. When the accused came up to Sydney, he would usually stay for several nights in a row, never for just one day.
At some point the complainant and the accused had a conversation about whether the accused would agree to fulfil the role of caring for the complainant’s finances.
He agreed that the accused said he would look for a house for him and they could live together. The accused said he would do whatever renovations were necessary to make the property disability friendly.
The evidence of Mr Genter about the timing of the conversation or conversations, and whether there was more than one was a little unclear, Do you agree that at some point you and Mr Maher talked about how he could use your money to help you return to Canberra and live there?---No. I don't recall saying that. At no point do you recall any conversation of that kind?---No. Well, how did he come about to be your attorney in the power of attorney then?---Because I asked him to do it. So there was a conversation, wasn't there?---Yes. And it was about how he could use your money to help you?---No. There was no conversation about money. It was whether he would be my power of attorney or not. But the conversation about the power of attorney was so he could have access to your money so he could use it for your benefit, wasn't it?---Yes. So there was a conversation about money?---But not to use it willy nilly as he wanted to. Well, my proposition to you was firstly, you said that he could use your money to help you?- --Fair enough. So you admit that conversation occurred?---Yes. And that was the conversation where you asked him to become the person who would help you going forward?---Correct. But you also told Mr Maher that he could use your money whenever he needed it, didn't you?---No. You said words to the effect of 'What's mine is yours and what's yours is mine'?---No.
He gave further evidence about this, There was an arrangement between the two of you where Mr Maher was able to pay for some of his own expenses because you said he could do that from your money?---Correct. Now, when you first had that conversation about Mr Maher accepting the role of being someone who helped you going forward, you had two bank cards?---Correct. And they’re both related to what you described as the everyday bank account?---Correct. You let Mr Maher take one of those cards. Didn’t you?---No, not to my knowledge. MS WREN: Your Honour, if I could just have my friend confirm what time - sorry, Mr Genter. Could you just stop? It’s a very generic question, in terms of there’s a very large expanse of time we’re talking about. If my friend could just be more particular about when he says that he let him take the card. HER HONOUR: Yes, that’s fair enough. Are we talking about when you first went to the hospital? MR CHEN: So I asked the witness this. This was when the conversation about - - - HER HONOUR: Power of attorney. MR CHEN: The power of attorney, and also caring for him. HER HONOUR: Yes. All right. Will you rephrase the question in a way the witness can understand what period of time you’re referring to? MR CHEN: Okay. So, Mr Genter, we were talking about how you had a conversation with Mr Maher about how he would care for you going forward. Correct? Yes?---Yes. And you said you don’t know when that conversation was?---No. Yes. And it was during this conversation where you gave him one of your two bank cards. Wasn’t it?---That’s incorrect. You gave him one of your two bank cards at some point. Didn’t you?---Not that I can remember, no. Maybe when I got home, I would have, but I needed the card to use while I was in Sydney. Well, you had two cards. Didn’t you?---Yes, but whilst I was in Sydney, I didn’t give him the card to take home, no. Not that I can remember.
Elements of the charges in counts 1 to 28
The first matter to note is that those transactions occurred early in the year, months before the power of attorney was signed on 22 June 2018.
Mr Genter specifically denied telling the accused that he could use the card for any purpose. He specifically denied having a conversation in which he told the accused “what’s mine is yours and what’s yours is mine” in January 2018.
It is evident from the bank statements tendered that the accused was earning almost twice as much as Mr Genter earned weekly. Although it was suggested to Mr Genter in cross-examination that the accused offered to quit his job to assist in caring for him, even though Mr Genter did not recall any such conversation, it is apparent in any event that the accused remained employed throughout January to March 2018 and beyond. For this reason, it is inherently unlikely that Mr Genter would have given the accused his card at that early stage and be content for him to use the card to make any purchase or transaction that he wished during the time when Mr Genter was in hospital without any conversations about this.
Although the complainant thought that the accused only had his card for a week or so, I infer from the whole of the evidence on this topic, including the complainant’s evidence that once he noticed the card was missing, he phoned the accused and asked for it back.
That the card was in the possession of the accused for longer than a week in January and February 2018 may be inferred from the evidence in the bank statements themselves during that period. There is no suggestion that anyone else besides the accused and Mr Genter had access to the bankcard or the pin number attached to the everyday account.
Although Mr Genter’s evidence about the conversations he had with the accused assisting him with his finances was unclear, I am nevertheless satisfied on the basis of the whole of the evidence that any conversation with the accused on the topic of the power of attorney or whether the accused would assist him with his finances had not occurred as early as the relevant transactions between the 29 January and 22 March 2018.
In the first place, the power of attorney was not signed until 22 June 2018 and the property at Stevenson Street, Torrens was not leased until the month of May 2018. Although Mr Genter agreed that he had authorised the accused to spend money on the renovations and the purchases of furniture and other things for the house, it defies belief that any of these expenses would have been incurred prior to the house being leased. In addition, the bank records show he was in employment in February and March 2018.
I am therefore satisfied that the withdrawals of money from the complainant’s everyday account during January to March 2018, specifically those withdrawals that are the subject of counts 1 to 28 were not related to renovations at the Torrens property.
Conclusion
On the whole of the evidence, I find, in respect of all of the transactions that occurred in Canberra while Mr Genter was in hospital in January to March 2018, being those identified as the subject of counts 1 to 28, that the only rational inference to be drawn is that it was the accused who made those withdrawals.
I have accepted Mr Genter’s evidence that he never gave the accused authorisation to make those withdrawals. Given the timing of those transactions, I find that the accused was plainly aware of the fact that the money in that account belonged to Mr Genter. I find that the accused in using the bankcard for his own purposes during that period was plainly dishonest and known by him to be dishonest.
It is for these reasons that I am satisfied beyond reasonable doubt that the accused committed each of the offences of theft in counts 1 to 28. I find him guilty of those counts.
As to the balance of offences numbered from counts 29 to 208 (excluding counts 120, 121, 122, 125 and 144 in respect of which nolle prosequis have been entered), I find the accused not guilty. To make it clear, the attached schedule accurately records my verdicts. I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: 1 August 2025 Schedule 1 – Verdicts Count Charge Number Verdict 1 SCCAN2025/8 Guilty 2 SCCAN2025/9 Guilty 3 SCCAN2025/10 Guilty 4 SCCAN2025/11 Guilty 5 SCCAN2025/12 Guilty 6 SCCAN2025/13 Guilty 7 SCCAN2025/14 Guilty 8 SCCAN2025/15 Guilty 9 SCCAN2025/16 Guilty 10 SCCAN2025/17 Guilty 11 SCCAN2025/18 Guilty 12 SCCAN2025/19 Guilty 13 SCCAN2025/20 Guilty 14 SCCAN2025/21 Guilty 15 SCCAN2025/22 Guilty 16 SCCAN2025/23 Guilty 17 SCCAN2025/24 Guilty 18 SCCAN2025/25 Guilty 19 SCCAN2025/26 Guilty 20 SCCAN2025/27 Guilty 21 SCCAN2025/28 Guilty 22 SCCAN2025/29 Guilty 23 SCCAN2025/30 Guilty 24 SCCAN2025/31 Guilty Count Charge Number Verdict 25 SCCAN2025/32 Guilty 26 SCCAN2025/33 Guilty 27 SCCAN2025/34 Guilty 28 SCCAN2025/35 Guilty 29 SCCAN2025/36 Not Guilty 30 SCCAN2025/37 Not Guilty 31 SCCAN2025/38 Not Guilty 32 SCCAN2025/39 Not Guilty 33 SCCAN2025/40 Not Guilty 34 SCCAN2025/41 Not Guilty 35 SCCAN2025/42 Not Guilty 36 SCCAN2025/43 Not Guilty 37 SCCAN2025/44 Not Guilty 38 SCCAN2025/45 Not Guilty 39 SCCAN2025/46 Not Guilty 40 SCCAN2025/47 Not Guilty 41 SCCAN2025/ 48 Not Guilty 42 SCCAN2025/49 Not Guilty 43 SCCAN2025/50 Not Guilty 44 SCCAN2025/51 Not Guilty 45 SCCAN2025/52 Not Guilty 46 SCCAN2025/53 Not Guilty 47 SCCAN2025/54 Not Guilty 48 SCCAN2025/55 Not Guilty Count Charge Number Verdict 49 SCCAN2025/56 Not Guilty 50 SCCAN2025/57 Not Guilty 51 SCCAN2025/58 Not Guilty 52 SCCAN2025/59 Not Guilty 53 SCCAN2025/60 Not Guilty 54 SCCAN2025/61 Not Guilty 55 SCCAN2025/62 Not Guilty 56 SCCAN2025/63 Not Guilty 57 SCCAN2025/64 Not Guilty 58 SCCAN2025/65 Not Guilty 59 SCCAN2025/66 Not Guilty 60 SCCAN2025/67 Not Guilty 61 SCCAN2025/68 Not Guilty 62 SCCAN2025/69 Not Guilty 63 SCCAN2025/70 Not Guilty 64 SCCAN2025/71 Not Guilty 65 SCCAN2025/72 Not Guilty 66 SCCAN2025/73 Not Guilty 67 SCCAN2025/74 Not Guilty 68 SCCAN2025/75 Not Guilty 69 SCCAN2025/76 Not Guilty 70 SCCAN2025/77 Not Guilty 71 SCCAN2025/78 Not Guilty 72 SCCAN2025/79 Not Guilty Count Charge Number Verdict 73 SCCAN2025/80 Not Guilty 74 SCCAN2025/81 Not Guilty 75 SCCAN2025/82 Not Guilty 76 SCCAN2025/83 Not Guilty 77 SCCAN2025/84 Not Guilty 78 SCCAN2025/85 Not Guilty 79 SCCAN2025/86 Not Guilty 80 SCCAN2025/87 Not Guilty 81 SCCAN2025/88 Not Guilty 82 SCCAN2025/89 Not Guilty 83 SCCAN2025/90 Not Guilty 84 SCCAN2025/91 Not Guilty 85 SCCAN2025/92 Not Guilty 86 SCCAN2025/93 Not Guilty 87 SCCAN2025/94 Not Guilty 88 SCCAN2025/95 Not Guilty 89 SCCAN2025/96 Not Guilty 90 SCCAN2025/97 Not Guilty 91 SCCAN2025/98 Not Guilty 92 SCCAN2025/99 Not Guilty 93 SCCAN2025/100 Not Guilty 94 SCCAN2025/101 Not Guilty 95 SCCAN2025/102 Not Guilty 96 SCCAN2025/103 Not Guilty Count Charge Number Verdict 97 SCCAN2025/104 Not Guilty 98 SCCAN2025/105 Not Guilty 99 SCCAN2025/106 Not Guilty 100 SCCAN2025/107 Not Guilty 101 SCCAN2025/108 Not Guilty 102 SCCAN2025/109 Not Guilty 103 SCCAN2025/110 Not Guilty 104 SCCAN2025/111 Not Guilty 105 SCCAN2025/112 Not Guilty 106 SCCAN2025/113 Not Guilty 107 SCCAN2025/114 Not Guilty 108 SCCAN2025/115 Not Guilty 109 SCCAN2025/116 Not Guilty 110 SCCAN2025/117 Not Guilty 111 SCCAN2025/118 Not Guilty 112 SCCAN2025/119 Not Guilty 113 SCCAN2025/120 Not Guilty 114 SCCAN2025/121 Not Guilty 115 SCCAN2025/122 Not Guilty 116 SCCAN2025/123 Not Guilty 117 SCCAN2025/124 Not Guilty 118 SCCAN2025/125 Not Guilty 119 SCCAN2025/126 Not Guilty 120 SCCAN2025/127 Nolle prosequi Count Charge Number Verdict 121 SCCAN2025/128 Nolle prosequi 122 SCCAN2025/129 Nolle prosequi 123 SCCAN2025/130 Not Guilty 124 SCCAN2025/131 Not Guilty 125 SCCAN2025/132 Nolle prosequi 126 SCCAN2025/133 Not Guilty 127 SCCAN2025/134 Not Guilty 128 SCCAN2025/135 Not Guilty 129 SCCAN2025/136 Not Guilty 130 SCCAN2025/137 Not Guilty 131 SCCAN2025/138 Not Guilty 132 SCCAN2025/139 Not Guilty 133 SCCAN2025/140 Not Guilty 134 SCCAN2025/141 Not Guilty 135 SCCAN2025/142 Not Guilty 136 SCCAN2025/143 Not Guilty 137 SCCAN2025/144 Not Guilty 138 SCCAN2025/145 Not Guilty 139 SCCAN2025/146 Not Guilty 140 SCCAN2025/147 Not Guilty 141 SCCAN2025/148 Not Guilty 142 SCCAN2025/149 Not Guilty 143 SCCAN2025/150 Not Guilty 144 SCCAN2025/151 Nolle prosequi Count Charge Number Verdict 145 SCCAN2025/152 Not Guilty 146 SCCAN2025/153 Not Guilty 147 SCCAN2025/154 Not Guilty 148 SCCAN2025/155 Not Guilty 149 SCCAN2025/156 Not Guilty 150 SCCAN2025/216 Not Guilty 151 SCCAN2025/157 Not Guilty 152 SCCAN2025/158 Not Guilty 153 SCCAN2025/159 Not Guilty 154 SCCAN2025/160 Not Guilty 155 SCCAN2025/161 Not Guilty 156 SCCAN2025/162 Not Guilty 157 SCCAN2025/163 Not Guilty 158 SCCAN2025/164 Not Guilty 159 SCCAN2025/165 Not Guilty 160 SCCAN2025/166 Not Guilty 161 SCCAN2025/167 Not Guilty 162 SCCAN2025/168 Not Guilty 163 SCCAN2025/169 Not Guilty 164 SCCAN2025/170 Not Guilty 165 SCCAN2025/171 Not Guilty 166 SCCAN2025/172 Not Guilty 167 SCCAN2025/173 Not Guilty 168 SCCAN2025/174 Not Guilty Count Charge Number Verdict 169 SCCAN2025/175 Not Guilty 170 SCCAN2025/176 Not Guilty 171 SCCAN2025/177 Not Guilty 172 SCCAN2025/178 Not Guilty 173 SCCAN2025/179 Not Guilty 174 SCCAN2025/180 Not Guilty 175 SCCAN2025/181 Not Guilty 176 SCCAN2025/367 Not Guilty 177 SCCAN2025/368 Not Guilty 178 SCCAN2025/369 Not Guilty 179 SCCAN2025/370 Not Guilty 180 SCCAN2025/371 Not Guilty 181 SCCAN2025/372 Not Guilty 182 SCCAN2025/373 Not Guilty 183 SCCAN2025/374 Not Guilty 184 SCCAN2025/375 Not Guilty 185 SCCAN2025/376 Not Guilty 186 SCCAN2025/377 Not Guilty 187 SCCAN2025/378 Not Guilty 188 SCCAN2025/379 Not Guilty 189 SCCAN2025/380 Not Guilty 190 SCCAN2025/381 Not Guilty 191 SCCAN2025/382 Not Guilty 192 SCCAN2025/383 Not Guilty Count Charge Number Verdict 193 SCCAN2025/384 Not Guilty 194 SCCAN2025/385 Not Guilty 195 SCCAN2025/386 Not Guilty 196 SCCAN2025/387 Not Guilty 197 SCCAN2025/388 Not Guilty 198 SCCAN2025/389 Not Guilty 199 SCCAN2025/390 Not Guilty 200 SCCAN2025/391 Not Guilty 201 SCCAN2025/392 Not Guilty 202 SCCAN2025/393 Not Guilty 203 SCCAN2025/394 Not Guilty 204 SCCAN2025/395 Not Guilty 205 SCCAN2025/396 Not Guilty 206 SCCAN2025/397 Not Guilty 207 SCCAN2025/398 Not Guilty 208 SCCAN2025/399 Not Guilty
DPP
Maher [2025] ACTSC 339
Guilty verdicts were entered on counts 1 to 28. Not-guilty verdicts were entered on counts 29 to 208 other than counts 120, 121, 122, 125 and 144, for which nolle prosequis had been entered. The Schedule records the count-by-count verdicts.
For the reasons which will become apparent, I cannot accept the prosecution submissions with respect to these three counts. Those counts occurred well after the power of attorney was signed in June 2018 and after the complainant and the accused have been living together for some time to all intents and purposes co-habiting. Therefore, for the same reasons that I cannot be satisfied beyond reasonable doubt about the other transactions which occurred in the same period of time I cannot be satisfied beyond reasonable doubt of the accused’s guilt on these three counts. Whilst I strongly suspect those transactions were made dishonestly, however I simply cannot be satisfied beyond reasonable doubt about that fact. Verdict of not guilty will therefore be returned in respect of those counts as well as the counts which the prosecution have conceded. That therefore leaves 28 counts in dispute.
I should make it clear at this stage that the evidence given by the complainant in respect of all of the other counts in respect of which not guilty verdicts are to be entered is not, however irrelevant. On the contrary, some of the evidence in respect of those other counts is relevant, on both the prosecution and the defence cases to my assessment of the reliability of the complainant’s evidence in respect of counts 1 to 28.
In the defence written submissions after the conclusion of the evidence, the accused argued that the same factors affecting the complainant’s reliability which led to the prosecution concessions that the charges in [16] herein could not be proved beyond reasonable doubt permeated the complainant’s reliability and credibility to such an extent that I could not be satisfied beyond reasonable doubt that the prosecution have proved any charge beyond reasonable doubt.
The defence also contended that proof of the theft of the card by the accused with respect to the everyday account was an indispensable link in the chain of causation without which I cannot be satisfied beyond reasonable doubt that any of the transactions made on that account between January and March 2018 were made by the accused or if they were made by the accused they were made dishonestly.
For reasons which will become apparent, that submission is misconceived. It was never the prosecution case that the card was stolen. The prosecution case with respect to counts 1 to 28 was certainly based on the allegation that the card had been misused by the accused. However, as it will become apparent, I have accepted the complainant’s evidence that while in hospital at some stage he realised he did not have the card and phoned the accused and asked for him to return it. That aspect of the complainant’s evidence was not relevantly challenged. I do not consider it necessary to make any finding beyond reasonable doubt as to how the accused came to be in possession of the card during the relevant period between January and March 2018. However, I do find beyond reasonable doubt as I will explain that it was in the accused’s possession during that time.
Furthermore, it will become apparent that there is a clear distinction to be drawn between the evidence given about the transactions from 29 January to 22 March 2018 and the transactions later which formed the basis of the balance of the charges. For a start, there is considerable evidence independent of the complainant in the documentary evidence and elsewhere that none of the transactions that were the basis of the counts 1 to 28 were authorised by the accused, all of them were made by the accused, and he made those transactions dishonestly for his own purposes.
Later in the context of cross-examination about the two bankcards attached to the everyday account. He was asked, So I suggest to you what actually happened was you gave him the bank cards around 29 January 2018, with your permission, because it was around then that he agreed to become your attorney and your carer?---Well, to my knowledge, I can't remember that happening, but it's possible. Now, you also gave some evidence about how there was an agreement where Mr Maher would pay half of the rent for the Torrens property; is that right?---Yes. That's correct. I suggest to you that there was no discussion that Mr Maher pay half of the rent to the Torrens property until sometime in 2019. Would you agree or - - -?---That's incorrect. So you were aware when Mr Maher was living with you from August 2018 that Mr Maher was unemployed; correct?---Well, I was unsure whether he left his job, but - - - He was with you every single day, wasn't he?---What - what days are we talking about? We'll start with August 2018, when you first moved into the property. Mr Maher was with you every single day during that month after you moved in?---No, no, no. He was still working at the - as a maintenance man that I knew.
I asked the witness, HER HONOUR: Can I ask you something?---Yes. When in relation to the signing of the power of attorney - - -?---Yes. - - - which happened in June - - -?---Yes. - - - did you agree to give him that power of attorney? When was the first discussion about that?---At the hospital. And when?---Before that date, obviously. Yes, but how far before? You were in hospital for several months?---A week, maybe two weeks before. MR CHEN: I suggest to you it certainly wasn't a week or two weeks before because you knew that Mr Maher had already been looking for properties two 40 to four months before you moved in in August 2018?---Right. It could've been longer, yes. It was much longer before?---Okay. Would you agree?---Yes. And you just can't remember the date of that conversation?---No.
His further evidence about this topic was the following, You also, in response yesterday, I think it was to questions from her Honour rather than Mr Chen, that the conversation about the power of attorney happened one or two weeks before the power of attorney document was signed. Do you remember that?---Yes. And Mr Chen suggested to you that it wasn’t a week or two weeks before because you knew that Mr Maher had already been looking for properties two to four months before you moved in in August of 2018, and you said, 'It could have been longer.' Do you remember that?--- Yes. Now, the conversations about him looking for properties and arranging for properties, was that the same or a different conversation to the power of attorney conversation?---I can't recall.
When he was asked about his recollection of how he came to appoint the accused as his attorney. He said, Are you able to recall how it was you came to appoint a power of attorney?---It was a prerequisite that the Prince of Wales Hospital put on me - the social worker there. I can't remember her name. So when you say a prerequisite, do you mean that they wouldn't let you leave without one? Is that what you refer to by a prerequisite?---Yes, well, that's how I interpreted it, that And what was your understanding of what the purpose of having Mr Maher be your power of attorney was?---To help me out with everyday things like payment of bills, payment of rent, payment of groceries, electricity bills. Yes, things like that. Did you and Mr Maher have any conversations about why you were appointing him as your power of attorney?---Because he was going to be living with me. He did the ramp that I needed to live in the house that we rented, and also they had to do the bathroom mod cons. As a result of you appointing Mr Maher as your power of attorney, from your perspective did you give Mr Maher access to any of your bank accounts?---Yes. And why did you do that?---Well, I couldn't access the money with – I couldn't use my hands, so I needed him to basically be my hands for me. And when you say 'be your hands', do you mean for the purposes of doing the kinds of things you've just described, like paying bills and paying rent?---Yes. And when you say you gave access to Mr Maher to your bank accounts, how did he - sorry, I will start that again. How did he have access to your bank account?---Well, he had the card, yes. When I - you know. Well, when I come home, living in Canberra, he had the card to do the things that I needed, yes.
Mr Genter’s evidence about the number of bankcards attached to each account was also a little confused.
He said initially that he opened a second account when he was awarded the compensation because the social worker at the hospital told him to keep the compensation money separate. When first questioned about that, the complainant said he went to the Westpac Bank in Randwick to open the account and was pretty sure he went on his own. However, when shown the opening account statement with the accused’s signature on it, he readily agreed that the accused must have signed the document. He then said, Do you have any recollection of Mr Maher being with you when you opened that account?-- -Well, he must have been. He's signed the paper. Did you intend for Mr Maher to have access to that account?---No. Did you have any conversations with him about that account?---Not really, no. Do you recall if that account had any cards associated with it? Bank cards, I should clarify?- --Yes. How many?---Just the one. And after you opened that account where did that card go?---It was in my wallet. Did you at any time give that card to Mr Maher?---No.
Importantly, the complainant said he did not authorise any payments from the superannuation account either in 2018 or 2019.
He said there was only one card ever attached to that account and he kept it in the back of his wallet. He did not ever knowingly use that card for purchases related to him.
Later he gave the following evidence, Do you know if you authorised any of those transactions?---Well, I wasn't aware that that card was being used, so I wouldn’t have authorised it, no. In relation to that card, so the card attached to this account, did you and Mr Maher ever have any conversation about that card?---Yes. I told him this is the card with my payout money in it, we shouldn't need to use it. Okay?---Yes. Do you remember when you might have told him that?---When he was at the hospital that day when he signed the power of attorney letter. Okay. What about after that? Did you ever talk to him again about that account?---No.
That evidence demonstrates some of the confusion in the complainant’s mind about the issue of when he had conversations with the accused about his money. For example, he could not have had a conversation with the accused at the time of the signing of the power of attorney on 22 June 2018, at least about the second account because it had not yet been opened then, and he did not receive any compensation until 19 July when that account was opened.
He was asked whether he ever checked the records on the bank statements and his reply was significant. … so you didn’t ever check your bank records to see if there was? You just went on? – – – Yes, pretty much because – – – I trusted the guy that was looking after me … (emphasis added).
I have discussed the evidence of Mr Genter on these topics at some length. That includes his evidence in respect of counts which the prosecution has now conceded cannot be proved beyond reasonable doubt, and the three counts which I conclude cannot be proved beyond reasonable doubt.
While I have no hesitation in accepting Mr Genter as a witness of truth who did his best to recall events which occurred nearly 7 years ago, it can be seen from the transcript excerpts above that much of his evidence about particular transactions was unreliable. The witness himself acknowledged from time to time he may have been wrong to identify particular transactions as not authorised.
As the prosecution case unfolded, the reasons for some of his unreliable recollections became apparent.
First, it became apparent that the complainant’s first statement to police in writing was not made until 19 August 2020.
The evidence about the investigation revealed that the police investigation into this matter was, to say the least, desultory. The complainant was not actually taken to the bank statements and asked to identify transactions he did not authorise, until 3 January 2023 some four or five years after the relevant events.
I accept the prosecution submissions that even though the complainant conceded in evidence in Court that many of the transactions which the police highlighted on his instructions may have been incorrectly identified, he did not identify transactions in 2023 without any thought or care. In fact, he gave rational and reasonable explanations for why he had initially thought some highlighted transactions may not have been authorised but why he had changed his mind.
Nevertheless, I accept that the first factor which affects the complainant’s reliability is the length of time between these events and when he was first asked to recall particular transactions.
The next factor which affects the complainant’s reliability is contained in the evidence I heard as to the consumption of liquor and marijuana by both the accused and the complainant during the time they lived together. The evidence of the consumption of liquor and drugs came from the complainant and from one of his carers, Ms Izzard, that both the accused and the complainant were regular consumers of drugs and alcohol, and from the amount they consumed, they were often intoxicated.
The next factor which concerns the reliability of the complainant’s evidence was his evidence concerning the whereabouts of the card attached to his everyday account and his evidence as to the timing of the conversations he had with the accused about the accused, assisting with his finances and appointing him as his power of attorney. I have already discussed these topics at some length and also discussed the evidence about that. However, that is not to say that the whole of the complainant’s evidence was unreliable.
In respect of the transactions which occurred in January to March 2018 which all occurred at a time when the complainant was an inpatient at the Prince of Wales Hospital in Sydney for the first time, the complainant continued to deny that he had authorised any of the transactions, the subject of counts 1 to 28. In respect of these transactions, I accept that the complainant’s evidence is both reliable and credible.
As the prosecution submitted, it was apparent in cross-examination that the complainant was prepared to agree to things which were put to him despite him having no memory. For example, in passages of the transcript to which I have previously referred in response to questions and agreeing with the proposition put to him despite having just indicated he did not have any recollection of having such a conversation, the complainant was prepared to say “fair enough”.
I accept that rather than detracting from his reliability and credibility, his responses in cross-examination actually enhances credibility and reliability, particularly in relation to the transactions which occurred when he was in hospital.
Moreover, I accept the prosecution’s submission that the mere acceptance by the complainant as to the possibility of something does not necessarily result in the conclusion that he was wrong or mistaken with respect to those particular transactions and I so find.
With those observations in mind, I turn now to consider the critical issue which is whether the prosecution have proved beyond reasonable doubt each of the charges in counts 1 to 28.
I accept the prosecution submission that it defies common sense that if the accused was withdrawing money with the complainant’s authorisation for purchases relating to Mr Genter’s future home that had not yet been rented, he would do so in the manner it was done. The record show that there were transactions that occurred on consecutive days for differing amounts of cash. Similarly, for example, on 22 February 2018, 1 March 2018, 8 March 2018, 16 March 2018, 19 March 2018 and 22 March 2018, there were multiple cash withdrawals on one day.
It is also significant that there were no further cash withdrawals from the complainant’s account in Canberra for some time after 29 March 2018.
I accept the prosecution submission that the fact that the transactions on the everyday account stopped after March 2018 and there were no further transactions in the lead up to the house being leased in late May 2018 is irreconcilable with any hypothesis that the cash withdrawals in Canberra between January and March 2018 had anything to do with purchases relating to the home. That evidence is consistent only with Mr Genter’s evidence that the accused was in possession of the card during that period and that it was given back to him when Mr Genter asked for it back after realising it was gone. Moreover, I do not accept that Mr Genter’s evidence is inconsistent with the card being gone for only a week. The upshot of his evidence is he could not recall the exact dates the card was taken, or when it was returned. Nor did he give any evidence about how long it took him to notice the card was missing except that he believed it was returned about a week after he asked for it.
As I have observed elsewhere, the bank records are powerful evidence that it was the accused who made the transactions in Canberra between 29 January and 22 March 2018. Notably, all of the transactions were occurring at the same location as the transactions in the accused’s bank account.
Mr Genter’s evidence that one occasion a nurse at the hospital had helped him withdraw money from his account does not detract from the conclusion that whatever the situation was with regard to the withdrawals made on the account in Sydney during the relevant period, it was the accused, who made the relevant withdrawals in Canberra during the relevant period. They are the transactions which are the subject of each count.