Hughes v R

Court of Criminal Appeal (NSW)|2021-08-13|Before: Payne JA, Wilson J, Fagan J

HEADNOTE [This headnote is not to be read as part of the judgment] On 29 January 2020 in the Lismore Local Court, the applicant, Ms Hughes, pleaded guilty to one "rolled up" count of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and was committed for sentence to the District Court. On 17 June 2020, McLennan SC DCJ sentenced the applicant to 2 years and 6 months' imprisonment commencing on 15 June 2020 with a non-parole period of 18 months. The relevant "deception" specified in the indictment was the "fraudulent transfer of money". The applicant was employed by the Moon Street Medical Centre service trust as the practice manager for the Moon Street Medical Centre. In that role she was responsible for all financial payments and transactions conducted by the business. She operated on her own an account held by the service trust with the Commonwealth Bank and was required to keep accurate accounting records using a software accounting program known as MYOB. On 329 occasions between 19 January 2012 and 15 October 2018, the applicant, without authority, transferred funds from the service trust's bank account held with the Commonwealth Bank to one of two of her personal accounts. The total amount obtained was $179,153.60. The applicant sought leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) against her conviction. Her primary contention was that the conviction was wrong in law because the elements of s 192E were not proven by the statement of facts tendered at her sentencing hearing. The applicant advanced three primary arguments as to why the element of deception was not established on the facts:

Judgment

PAYNE JA: On 29 January 2020 in the Lismore Local Court, the applicant, Tracey Hughes, pleaded guilty to one "rolled up" count of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and was committed for sentence to the District Court. On 17 June 2020, McLennan SC DCJ sentenced the applicant to 2 years and 6 months' imprisonment commencing on 15 June 2020 with a non-parole period of 18 months. The applicant will be eligible for parole on 14 December 2021.
The applicant seeks leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) against her conviction on the following grounds: "1. The conviction of the applicant of the offence of 'obtaining a financial advantage by deception' contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) was wrong in law. 2. The element of 'deception' was not established or supported by the facts. 3. A miscarriage of justice was occasioned by the conviction of the applicant for the offence."
The applicant's primary contention is that the elements of the s 192E Crimes Act offence were not proven by the statement of facts tendered at her sentencing hearing. The application was said to raise two issues concerning the operation and interpretation of s 192E: 1. the characterisation of the deception that must bring about or cause the financial advantage which was obtained; and 2. the possibility of "obtaining" a financial advantage by "keeping" it: see Crimes Act, s 192D(1)(c).
A notice of intention to apply for leave to appeal against sentence was filed on 22 June 2020. The Registrar of the Court of Criminal Appeal extended the notice period three times to 15 April 2021. Grounds of appeal and submissions were filed on 6 April 2021. A notice of application for leave to appeal against conviction and sentence was filed on 15 April 2021.

Factual background

From 11 July 2011 to 26 October 2018, the applicant was employed by the Moon Street Medical Centre service trust as the practice manager for the Moon Street Medical Centre at Ballina. In that role she was responsible for all financial payments and transactions conducted by the business. She was able to operate on her own an account held by the service trust with the Commonwealth Bank. The applicant was required as part of her employment to keep accurate accounting records for the Moon Street Medical Centre service trust by using a software accounting program known as MYOB.
On 329 occasions between 19 January 2012 and 15 October 2018, the applicant, without authority, transferred funds from the Moon Street Medical Centre service trust bank account held with the Commonwealth Bank to her personal Commonwealth Bank account or her personal Greater Bank account. Given that the matter proceeded by way of a guilty plea, there was no information available to this Court about how those transfers were effected or whether the MYOB records of the transfers were made before, after or concurrently with the bank transfers. There were 41 fraudulent transactions in 2012, 32 in 2013, 46 in 2014, 46 in 2015, 71 in 2016, 60 in 2017 and 32 in 2018. Sometimes the amount involved was small ($66 on 1 June 2016) and sometimes it was larger ($1,587 on 6 March 2017). The total amount obtained was $179,153.60.
The directors of the Moon Street Medical Centre service trust became aware of the offending in October 2018. At 4pm on 26 October 2018, the applicant attended a meeting with the directors. She consented to the conversation being recorded. During the meeting she admitted to multiple fraudulent transactions where she transferred funds belonging to the Moon Street Medical Centre service trust into her personal bank accounts without authority. It was suggested to the applicant that she had taken more than $40,000. She replied, "That's about right." The applicant said: "I know I've been going to come to youse for the last couple of weeks because me conscience has got to me. I was in a bit of a financial thing with me rates and stuff and I thought, well, I couldn't get anymore, sort of, to help me pay off so and I done the wrong thing by you guys in doing that. And I really am so sorry. I am going to pay you back all of it, and I wish I could have said this to you yesterday. … I have been stuck with financial things, and I know I've done the wrong thing and I've been so sick in my guts about it and I really do apologise for my behaviour. I should not have done that at all. I should have maybe come and asked you if I could have maybe got a loan but I done the wrong thing and I know and I'm going to pay it all back to you."
The applicant wrote a letter dated 2 November 2018 making a general admission, a statement of remorse, and offer of repayment of the full amount. She was dismissed from her employment.

Charges laid against the applicant

The applicant was initially charged with 330 separate charges. Sequences 1-329 each represented a separate charge under s 192E(1)(b) of the Crimes Act relating to separate transactions on certain dates.
Sequence 330 was a "rolled-up" charge in the following form: "[B]etween the 19th day of January 2012 and the 26th day of October 2018, at Ballina in the State of New South Wales, did by deception, that is, by fraudulent transfer of money, dishonestly obtain a financial advantage, namely $179,153.60. S 192E(1)(b) Crimes Act 1900 Law part code 70974"
The relevant "deception" specified in the indictment was the "fraudulent transfer of money". As far as the evidence in this Court discloses, no further particulars of the relevant deception were sought or provided.
The advantage to the applicant in the use of a rolled-up charge was that it restricted the maximum available sentence to that prescribed by the legislation for a single offence, rather than the total theoretically available as a maximum sentence from multiple charges: R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99 at [67]-[68] per Hoeben CJ at CL (with whom Rothman and McCallum JJ agreed); Kristensen v R [2018] NSWCCA 189 at [10].
On 29 January 2020, at Lismore Local Court, the applicant was committed for sentence on sequence 330. The remaining 329 charges became back up charges pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW). The relevant deception identified in the Court Attendance Notice annexed to the s 166(1)(b) certificate for each of the back up charges was the "fraudulent transfer of money".
On 24 February 2020, the applicant entered a plea of guilty on arraignment before the sentencing judge. The applicant was legally represented and no complaint was made on appeal about the quality of that legal representation. A lengthy statement of agreed facts was tendered for the purposes of the sentence proceedings. That document set out some details of each of the 329 individual transactions including the fact that each transaction was falsely described by the applicant in the MYOB records. The description of the first few transactions in the statement of facts is set out below by way of example: "On divers dates between 19 January 2012 and 15 October 2018 the offender transferred funds from the Moon Street Medical Centre Service Trust Bank Account to her personal Commonwealth Bank Account and her personal Greater Bank Account. The funds were transferred on 329 occasions with the total amount being $179,153.60. Offending Transaction 1: On 19 January 2012 the offender fraudulently transferred the sum of $780.00 from the Moon Street Medical Centre Service Trust Commonwealth Bank account to her personal Greater Bank Account number ... The offender recorded this transaction in the MYOB program as 'Telstre' in an attempt to conceal the transaction. Transaction 2: On 30 January 2012 the offender fraudulently transferred the sum of $385.73 from the Moon Street Medical Centre Service Trust Commonwealth Bank account to her personal Greater Bank Account number ... The offender recorded this transaction in the MYOB program as 'Telstre' in an attempt to conceal the transaction. Transaction 3: On 13 February the offender fraudulently transferred the sum of $144.00 from the Moon Street Medical Centre Service Trust Commonwealth Bank account to her personal Greater Bank Account number ... The offender recorded this transaction in the MYOB program as 'Alpha ink' in an attempt to conceal the transaction. Transaction 4: On 14 February 2012 the offender fraudulently transferred the sum of $362.34 from the Moon Street Medical Centre Service Trust Commonwealth Bank account to her personal Commonwealth Bank Account number ... The offender recorded this transaction in the MYOB program as 'Colonial S/F' in an attempt to conceal the transaction. Transaction 5: On 20 February 2012 the offender fraudulently transferred the sum of $329.00 from the Moon Street Medical Centre Service Trust Commonwealth Bank Account to her personal Commonwealth Bank Account number ... The offender recorded this transaction in the MYOB program as 'voice plus' in an attempt to conceal the transaction."
The descriptions of the remainder of the 329 transactions followed the same form, setting out fraudulent transfers by the applicant from the Moon Street Medical Centre service trust Commonwealth Bank account to her personal accounts. The transactions were recorded in the MYOB program under many various descriptions including, but by no means limited to, "Wages", "7765425700", "TH wages", "Xmas bonus", "Vital", "CGU", "messagenet", "petty cash", "Refund", "bunnings", "moonmedical" and "Rebursement" [sic].
The applicant gave evidence in the sentence proceedings. She confirmed that she agreed with the statement of facts which had been tendered. When challenged about a statement made to the psychiatrist that she had only transferred her own superannuation payments to her personal account, she confirmed that "there were other transactions that were disguised as other things". The applicant also confirmed that she had started her fraudulent activity within six months of being employed. The following exchange occurred during re-examination: "Q. Just to be clear, is it the case that you don't say there was any good reason why you - you didn't have any good reason or excuse to steal the money you stole. A. It was to catch up on paying the bill rates and catch up in my mortgage payments as well, and that - then the last couple of years I did - did gambling. Q. I understand that, but what I'm asking is you accept that's not an excuse, that's an explanation, but. A. Yes."

Relevant legislation

At all relevant times, s 192E of the Crimes Act provided: 192E Fraud (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person's obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. (3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time. (4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud.
Section 192D(1) of the Crimes Act provided: 192D Obtaining financial advantage or causing financial disadvantage (1) In this Part, obtain a financial advantage includes: (a) obtain a financial advantage for oneself or for another person, and (b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and (c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary.

Consideration

The applicant's grounds seeking leave to appeal are set out at [2] above. Although not framed as an application to withdraw a plea of guilty, in substance, it faces impediments of much the same kind as those that would apply to an application for leave to withdraw a plea and those impediments are not recognised in the applicant's submissions and have not been overcome. This point was made by the Crown in submissions filed before the appeal hearing. When this issue was raised with counsel for the applicant at the appeal hearing, the following exchange ensued: "FAGAN J: … you do have [to] recognise that the nature of this application is for leave to withdraw from the plea, don't you, because on the face of it by pleading guilty to this charge your client has admitted a deception. You have argued everything as if there were a finding in the Court below and one would go back and go over evidence to see whether the finding was sustained but your client by pleading guilty to this has admitted deception, an element of the offence. HIGGINS: She has, your Honour is correct. It still goes back to the point about irrespective of that admission do the facts on sentence permit that element of the offence to have been made out, irrespective of her plea of guilty and the admitting of the element of the offence. WILSON J: But surely, Mr Higgins, it makes out the element; she's acknowledged the element. HIGGINS: But it's not available on the facts, that's the simple point if your Honour please."
In relation to an application to withdraw a plea of guilty, the Crown relied upon the summary of the relevant principles in Layt v R [2020] NSWCCA 231 where I said (Walton and Fullerton JJ agreeing) at [24]-[28]: "[24] Where an applicant has entered a plea of guilty and subsequently seeks to appeal against conviction, it is not necessary to conduct an examination into the applicant's guilt or innocence. Rather, the relevant inquiry is into the integrity of the plea of guilty: Sabapathy v R [2008] NSWCCA 82 at [14]; Thafer v R [2019] NSWCCA 143 at [287]. [25] When a person enters a plea of guilty, that person admits to all of the elements of the offence (at least to the minimum level necessary for a conviction) and the conviction will not be set aside unless it can be shown that a miscarriage of justice has occurred: R v Chiron [1980] 1 NSWLR 218. [26] The rarity with which this Court grants leave to withdraw the plea of guilty at trial is an aspect of the public interest in the finality of proceedings: Reg. v O'Neill [1979] 2 NSWLR 582. [27] While the categories are not closed, some examples of where leave to withdraw a plea of guilty has been granted are: (1) the nature of the charge to which the plea has been entered is not appreciated: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; (2) the plea is not 'a free and voluntary confession': R v Chiron at 220; (3) the 'plea [is] not really attributable to a genuine consciousness of guilt': R v Murphy [1965] VR 187 at 191; (4) there has been a 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt': Sagiv v R (1986) 22 A Crim R 73 at 80; (5) the plea has been 'induced by threats or other impropriety' and the appellant would not otherwise have pleaded guilty: R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep); and (6) the plea is not unequivocal or is made in circumstances suggesting it is not a true admission of guilt (Maxwell v The Queen (1996) 184 CLR 501 at 511; [1996] HCA 46). [28] It is for the person seeking to withdraw the plea of guilty to satisfy the Court that leave to withdraw the plea should be granted: R v Boag (1994) 73 A Crim R 35; R v Ferrer-Esis. It is only where the material before the Court discloses a real question about the guilt of an accused that the Court will grant leave to withdraw the plea: R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533."
Those observations were cited with approval by Wright J (with whom I and Garling J agreed) in Bobbe v R (No 2) [2021] NSWCCA 150. Wright J added the following at [70]: "[70] In addition, it is well established that in cases of an appeal against conviction following a plea of guilty: (1) the Court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant's own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea 'is not in truth guilty of the offence': Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129 at [33]; (2005) 155 A Crim R 37; Meissner v the Queen (1995) 184 CLR 132 at 141 and 157; [1995] HCA 41; and (2) the ultimate question for the Court is whether it has been demonstrated that a miscarriage of justice will occur if the applicant is not permitted to withdraw the plea and any miscarriage of justice is to be found in the circumstances in which the Applicant came to enter his plea: R v Rae (No 2) [2005] NSWCCA 380 at [20]; (2005) 157 A Crim R 182; Samandi v R [2020] NSWCCA 217 at [30]."
The critical point, for present purposes, is that the applicant's plea of guilty in the present case admitted all of the elements of the offence, at least to the minimum level necessary for a conviction.
In Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, Dawson J considered the circumstances in which a conviction entered upon the basis of a guilty plea will be set aside on appeal and observed at 157 that: "Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence." (Emphasis added; footnote omitted.)
The applicant accepted that the judgment of Dawson J in Meissner correctly stated the law. Of course, there are circumstances where the facts admitted by the plea are incapable in law of supporting the charge, for example because the facts admitted are inconsistent with the charged offence. This is not such a case. Rather, in the present case the applicant's complaint concerns the sufficiency of the agreed facts to support the charge.
There is a clear distinction between a case where either the agreed facts or evidence received during the sentencing hearing is inconsistent with the elements of the charge and therefore the evidence is incapable of supporting the charge, and a case where this Court is asked to disregard the plea of guilty and to determine the guilt or innocence of the applicant based upon inferences drawn from the material tendered for the purposes of sentence which are not inconsistent with the elements of the charge. The latter course is impermissible. It disregards the principle that the applicant has, by her plea of guilty, admitted all of the elements of the offence, at least to the minimum level necessary for a conviction.
Further, the application for leave to appeal in the present case was not supported by any evidence to suggest that the applicant was not guilty of the charge to which she entered a plea of guilty. Rather, the applicant invited the Court to speculate about what additional facts might be found upon further enquiry and conclude that if those facts were found the applicant may not be guilty of the particular offence charged.
This is not a case where it has been shown that the applicant did not understand the nature of the charge or did not intend to admit that she was guilty of it. It is also not a case where upon the facts admitted by the plea the applicant could not in law have been guilty of the offence. The application for leave to appeal should be dismissed for this reason alone.
I will now explain, by reference to the applicant's grounds of appeal, the additional reasons why the application for leave to appeal must be refused.

Issues one and two: causation and "keeping" the financial advantage

The following observation of Bathurst CJ in Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [350] correctly identifies the relevant law in relation to s 192E: "[350] It is significant that the offence [i.e. s 192E] requires that a financial advantage be obtained by deception. In this regard it may be contrasted, for example, with s 192F which makes it an offence to dishonestly destroy or conceal an accounting record with the intention of obtaining a financial advantage or, more importantly, s 192G … The latter two sections, unlike s 192E, do not require that the financial advantage actually be obtained but rather that there be an intention to obtain such an advantage." (Emphasis in original.)
It was not controversial that the applicant obtained a financial advantage to which she was not entitled by making the transfers to her personal accounts from the trust account. The applicant submitted, however, that the ultimate question was whether the applicant obtained a financial advantage "by any deception". The applicant advanced three primary arguments as to why the element of deception was not established on the facts: 1. there was an issue with causation in that if it were concluded that some of the MYOB entries were made after the relevant transfers then the making of the MYOB entries did not "bring about" her financial advantage; 2. the applicant's deception (in making the MYOB entries) did not allow her to "keep" the financial advantage for the purposes of s 192D(1)(c); and 3. there was no evidence of actual deception of the directors of the Moon Street Medical Centre service trust and thus the medical centre.
The applicant submitted that the only possible "deception" was the making of the MYOB entries, and the charge of an offence against s 192E can only be good in law if it can be said that the making of the MYOB entries allowed her to "keep" a financial advantage within the meaning of s 192D(1)(c). The applicant submitted that she did not deceive any person before she made the transfers to herself, the MYOB entries did not need to be made before the transfers, and "presumably" many of them were not. It was submitted that the transfers happened undetected at the time of the transfers. It was submitted that the applicant did not need any person's supervision or approval to make the transfers; she did not give fraudulent information or conceal information in conversations with colleagues.
The applicant submitted that this was not a typical case involving the keeping of a financial advantage such as, for example, where a person keeps hold of a sum of money that he or she already has by failing to disclose a capital gain or a taxation event to the Australian Taxation Office or failing to disclose information to regulatory authorities that would prompt those authorities to restrict the person's commercial activities and therefore cause the person some financial loss (see Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4). The applicant submitted that her conduct does not closely resemble the typical cases and therefore cannot be captured by ss 192D and 192E.
The applicant further submitted that s 192D(1)(c) refers to the keeping of a financial advantage that "one has" (that is, before engaging in the deception that causes the keeping of the advantage). "Assuming" that the applicant gained her financial advantages before making the false MYOB entries, the applicant submitted that the advantage did not in a practical sense "predate" the entries; the transfers and the MYOB entries were part of the one pattern of behaviour and happened together. On this view, it was submitted, the applicant did not actually do anything to "keep" her various financial advantages; she merely made the false entries to avoid immediate detection and distract her employers from the true nature of the transactions.
The applicant submitted that the case law concerning ss 192D and 192E is in a developing state, and there is no recently decided case raising a similar pattern of facts to this case. It was submitted that this conduct was not intended by the courts or Parliament to be captured by s 192E and the operation of that provision should not be widened.

Conclusion regarding issues one and two

A fundamental problem with the applicant's argument is that it treated the matter as though it had proceeded to trial. It had not.
The question is whether the agreed facts were incapable of supporting the offence. That question is not answered by making assumptions favourable to the applicant about what facts might have been established after a trial in circumstances where the agreed facts themselves were silent and by her plea of guilty the applicant was taken to have admitted each of the elements of the offence.
Two examples on this subject will suffice. First, the agreed facts were silent about whether the MYOB entries were made before, after or simultaneously with the relevant bank transfers. Counsel for the applicant accepted that his causation argument was only sound if it was assumed that the MYOB entries were made after the relevant bank transfers. There was no evidence that this was so. Nothing in the agreed facts pointed to this fact being established. The plea of guilty of itself satisfied all of the elements of the charge. Even assuming, in favour of the applicant, that there was a lacuna in the facts, that is not a sufficient basis to demonstrate a miscarriage of justice.
Secondly, there was no evidence about the financial statements and taxation affairs of the Moon Street Medical Centre service trust. But for the fraudulent MYOB entries made by the applicant, the Moon Street Medical Centre service trust's financial statements and taxation returns (every month's Business Activity Statement) would have been quite different. It is likely that if truthful entries had been made by the applicant in the MYOB records this would have led to the immediate detection of the applicant's fraud. This matter, however, was simply not investigated or litigated by reason of the applicant's plea. The likelihood that such evidence would have been forthcoming at a trial cannot simply be assumed away by the applicant.
Even more fundamentally, the applicant's assertion that her making the false MYOB entries constituted the sole relevant deception was simply not correct. Those fraudulent entries were only part of her conduct. The deception identified by the indictment was not limited to making the fraudulent MYOB entries; it involved an entire course of conduct. The particularised deception in the indictment was "by fraudulent transfer of money". The deception engaged in by the applicant involved the applicant falsely representing by her conduct (including written and verbal acts), to the Commonwealth Bank and her employer, that she had been authorised by her employer to transfer particular funds belonging to her employer to her personal accounts. The plea of guilty encompassed this broad ranging deception, on 329 occasions, over the six-and-a-half-year period comprised in the indictment.
It is no doubt correct, as the applicant submitted, that the applicant "did not require the approval or supervision of another colleague to make payments" from the medical centre's bank account. That is because she was in a position of trust. The applicant was not, however, authorised to treat funds belonging to her employer as she liked. She was under an obligation throughout the whole of the period in the indictment to apply funds for the proper purposes of the Moon Street Medical Centre service trust.
The applicant's plea acknowledged that she practised an ongoing deception on her employer and its bank, pretending that she was acting in accordance with her obligations and within the scope of her authority, when in fact she was misappropriating the employer's funds for her own benefit. The applicant accepted that deception of that kind is sufficient for the purposes of s 192E(1)(b). It is well established that changed circumstances or state of mind can give rise to a deception: Director of Public Prosecutions v Ray [1974] AC 370. The relevant deception was not required to be by words but could be established by conduct: Crimes Act, s 192B(1).
Even if, as the applicant submitted, the MYOB entries comprised the universe of the relevant deception, they were in any event causative because the concealment of the individual misappropriations allowed the applicant to continue representing to her employer that she was acting in accordance with her obligations and within the scope of her authority. The concealment of the individual misappropriations by false MYOB entries thereby allowed the applicant to continue in the position from which she was able to commit the further misappropriations.
Causation in the context of s 192E(1)(b) is essentially a question of fact: Attorney-General's Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) [2021] NSWCCA 87 at [63]-[79] (Simpson AJA; Campbell and N Adams JJ agreeing); [94]-[95] (N Adams J). Fundamentally, there was a factual basis for causation available from the agreed facts and all the elements of the offence (including causation) were acknowledged by the applicant in her plea. Nothing in the facts or evidence adduced in the sentence proceedings was incompatible with the applicant's guilt of the charge. In any event, there is no principle of law that a statement of facts must deal with every element of an offence, or that any omission to do so would entitle, on appeal, a person who has pleaded guilty to an acquittal or a retrial.
Grounds 1 and 2 must be rejected.

Issue three: whether the centre was actually deceived by the MYOB records

The applicant submitted that the statement of agreed facts did not disclose whether the medical centre was in fact deceived by the false MYOB entries. The only agreed fact on this issue was that: "In October 2018 the Directors of the Moon Street Medical Centre became aware that the offender had made a significant number of fraudulent transactions from their account into the offender['s] personal account."
The applicant submitted that there was no evidence that other staff members reviewed the MYOB entries (and the entries' correspondence with other financial records), and therefore there was no material upon which it could be said that the centre was deceived by the MYOB entries. The applicant submitted that it was this deception that allowed her to "keep" (and therefore "obtain") her financial advantage. It was submitted that until the production of evidence of the centre's own review of the applicant's MYOB entries and its limited checks on the applicant's conduct, it would not be clear that s 192E captured her conduct. It was further submitted that each of the relevant MYOB entries would need to have had a deceptive influence on the centre. By the time the centre had discovered the total amount transferred by the applicant, the applicant had enjoyed the benefit of the transfers for a long time. The applicant submitted that the MYOB entries were not what allowed her to "keep" her advantage.
This argument may be rejected in short order. As I have said, it is obvious that but for the fraudulent MYOB entries made by the applicant, the Moon Street Medical Centre service trust's financial statements and taxation returns (including every month's Business Activity Statement) would have been quite different.
Further, and in any event, the relevant conduct identified in the indictment was not limited to the MYOB entries but encompassed the applicant's false representations to the Commonwealth Bank and her employer about her obligations and authority. There is no requirement that the operative deception be proved by direct evidence. Nor is there a requirement that the deception operated on the mind of a natural person: see National Commercial Banking Corporation of Australia Ltd v Batty (1986) 160 CLR 251; [1986] HCA 21.
It is open for the prosecution to prove the relevant deception as a matter of inference: Decision Restricted [2019] NSWCCA 43. In Flack v R [2011] NSWCCA 167, this Court (Johnson J; McClellan CJ at CL and Hidden J agreeing) summarised the principles relating to proof of deception as follows: "[36] On a prosecution for an alleged offence under s.178BA Crimes Act 1900, it is not necessary for the Crown to establish that it was the person deceived who suffered the relevant loss: R v Ho; R v Szeto at 147. [37] What must be established, however, is a causal connection between the deception used and the financial advantage obtained. The deception must have been the means whereby the financial advantage was obtained, or the effective cause of the financial advantage being obtained. It is an essential ingredient of an offence under s.178BA that the cause of the giving of the financial advantage was the deception used by the accused person: R v Stanhope (NSWCCA, unreported, 10 September 1987, pages 6-8); R v Clarkson [1987] VR 962 at 980; R v Ho; R v Szeto at 147. [38] The question whether the deception was an operative cause of the obtaining of financial advantage, falls to be answered as a question of fact by the members of the jury applying their commonsense: R v King [1987] 1 QB 547 at 553. [39] As the Crown submitted in this Court, commonsense and inferences had a role to play in this case. The loan documents required identification details of the 'goods involved'. This was by way of engine and VIN numbers. There needed to be a certificate of currency for the 'goods'. There was also a requirement for the 'goods' to be insured. There were in fact insurance policies taken out for each of the five 'goods', separately identified by individual VIN and engine numbers. The evidence revealed that these policies were for existing property (T767). There was a requirement, for at least some of the loans, that there be an acknowledgement that the 'goods' had been inspected by the borrower. [40] The applications to the financial institutions in each case contained considerable details which could be inferred as identifying a particular bus which was in existence, including insurance coverage for an identified bus. The representations contained in the documentation supporting the applications were available to establish that those representations were deceptive, and were an operating factor on the conduct of the financial institutions in approving the loans. This inference was available with respect to each of the five counts. It was not necessary that the actual person who processed the loan give evidence. [41] Support for this approach may be found in the decision of the High Court of Australia in National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21; 160 CLR 251, a decision relied upon by the Crown at trial. In that case, Brennan J said at 273: 'Yeldham J found that Davis had been guilty of fraud, though there was no direct evidence that a bank officer had been induced to collect the cheques or pay money in reliance on any representation that Davis had made. The absence of such evidence was not necessarily a bar to recovery, however, for inducement may be inferred from the doing of something after the making of a representation calculated to induce the doing of that thing: Smith v Chadwick (1884) 9 App Cas 187 at 196. Whether inducement should be inferred is a question of fact dependent on all the circumstances, not a question of law.' [42] Brennan J observed, at 273, that such an inference may be drawn in criminal as well as civil cases, as the House of Lords had held in R v Lambie [1982] AC 449. [43] Again, in National Commercial Banking Corporation of Australia Limited v Batty, Gibbs CJ (Wilson J agreeing) said at 258: 'In the present case it is right to conclude that loss was caused to the bank by the wrongful act of Mr Davis. By lodging the cheques for deposit, Davis impliedly represented to the bank that he was entitled to do so - in other words, his conduct implied that he either was the owner of the cheques or was acting with the authority of the owner: cf R v Lambie [1982] AC 449 at 460. It was, of course, necessary for the bank to prove that it had been induced by the implied representation to act to its detriment by collecting the proceeds of the cheques. The bank called no evidence that it relied upon the representation but it may be inferred that it did so. In Smith v Chadwick (1884) 9 App Cas 187 at 196, Lord Blackburn said: "I do not think it is necessary, in order to prove this, that the plaintiff always should be called as a witness to swear that he acted upon the inducement. At the time when Pasley v Freeman [2 Sm LC 66, 73, 86 (8th ed)] was decided, and for many years afterwards, he could not be so called. I think that if it is proved that the defendants with a view to induce the plaintiff to enter into a contract made a statement to the plaintiff of such a nature as would be likely to induce a person to enter into a contract, and it is proved that the plaintiff did enter into the contract, it is a fair inference of fact that he was induced to do so by the statement." It was a fair inference of fact in the present case that the bank collected the proceeds of the cheques because it was induced to believe that Davis was entitled to deposit them. If it had known that Davis had no authority to deposit the cheques it is inconceivable that it would have collected the proceeds: cf R v Lambie.' [44] In the leading judgment in R v Lambie, Lord Roskill, at 460, referred to difficulties if convictions could: '... only be obtained if the prosecution are able in each case to call the person on whom the fraud was immediately perpetrated to say that he or she positively remembered the particular transaction and, had the truth been known, would never have entered into that supposedly well-remembered transaction, the guilty would often escape conviction. In some cases, of course, it may be possible to adduce such evidence if the particular transaction is well remembered. But where as in the present case no one could reasonably be expected to remember a particular transaction in detail, and the inference of inducement may well be in all the circumstances quite irresistible, I see no reason in principle why it should not be left to the jury to decide, on the evidence in the case as a whole, whether that inference is in truth irresistible as to my mind it is in the present case.'"
Leaving aside the fact that by her plea the applicant established this element of the offence, in the present case there was an overwhelming inference that the Commonwealth Bank paid away funds to which the Moon Street Medical Centre service trust was entitled on the basis that it was induced by the applicant to believe that the applicant was entitled to have those funds deposited in her personal accounts. There is likewise an overwhelming inference that the directors of the Moon Street Medical Centre service trust were deceived by the applicant into believing that funds to which the trust was entitled were only being disbursed by the applicant for the proper purposes of the trust and not deposited in her personal accounts without authority.
Having pleaded guilty, the applicant should not be permitted to advance this ground. This ground must be rejected.

Conclusion and orders

For the foregoing reasons, the application for leave to appeal is without merit and should be refused. I propose the following order: 1. Leave to appeal refused.
WILSON J: This application was seriously misconceived. I agree with the orders proposed by Payne JA for the reasons given by his Honour. I also agree with the additional observations of Fagan J.
FAGAN J: I agree with Payne JA that leave to appeal should be refused.
In R v Murphy [1965] VicRp26; [1965] VR 187 Scholl J made this observation concerning the common form statutory provision for appeals against conviction: It was established very early in the history of the Court of Criminal Appeal in England that a person who had pleaded guilty could nevertheless be an appellant under the legislation, and that view has been adopted here and elsewhere.
The Crown's written submissions commenced as follows: Although the applicant has not framed the appeal as such, properly understood this is an application for leave to withdraw her plea of guilty to the charge of which she was convicted. It was not intended by that submission to challenge the procedural regularity of an appeal against conviction following a plea of guilty, but rather to draw attention to the similarities between the principles governing such an appeal and those relevant to whether an accused person may be permitted to withdraw his or her plea.
The applicant in the present case invokes the principle, established in the authorities cited by Payne JA, that a miscarriage of justice may be established and the conviction may be set aside if the facts alleged by the Crown, upon the basis of which the plea was entered, are incapable of sustaining the charge.
In s 192E(1) of the Crimes Act, under which the applicant was indicted, the words "by any deception" import two elements of the offence; namely, (1) that the accused performed some act that constituted deceit and (2) that the deceit caused a financial advantage to pass to the accused: Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [352] (Bathurst CJ) citing R v Clucas [1949] 2 KB 226 at 229-230; Clarkson v R [1987] VR 962 at 980; Ho and Szeto v R (1989) 39 A Crim R 145 at 147; Flack v R [2011] NSWCCA 167 at [37]-[38]. The applicant now argues that there were not alleged against her any facts of having performed or practised an act of deceit upon any specified person or entity, nor any facts of such deceit having caused financial advantage to herself. It is said that by entering her plea the applicant therefore did not admit to any facts constituting these two essential elements.
The indictment itself alleged the facts of deceit and causation, not with particularity but in the terms of the section, as follows: [Between 19 January 2012 and 26 October 2018 at Ballina] did by deception, that is, by fraudulent transfer of money, dishonestly obtain a financial advantage, namely $179,153.60.
The amount of the financial advantage alleged in this single count was the total of 329 withdrawals from the bank account of the applicant's employer. She entered her plea on 9 March 2020. The Crown and the applicant agreed upon a statement of facts. This commenced with recitation of the charge itself. The agreed facts included that the applicant had access to her employer's bank account and that she transferred each of the 329 amounts to one or other of her two personal bank accounts. Each of the 329 transactions was specified in a separate paragraph of the statement of facts. The first transaction was described, in part, as follows: On 19 January 2012 the offender fraudulently transferred the sum of $780 from [the employer's bank account] to her [personal account]. The offender recorded this transaction in the MYOB program as "Telstre" in an attempt to conceal the transaction.
The subsequent 328 transactions were described in repetitive, formulaic paragraphs using the same wording, varying only with respect to the date, the amount, the number of the applicant's personal account and the notation in the MYOB accounting program. The agreed facts did not particularise the "deception" that was alleged in the indictment, or the mode of causation "by" which the deception brought financial advantage to the applicant. They contain no elaboration of the expression "by fraudulent transfer of money". The appeal papers do not reveal whether the statement of agreed facts was produced before or after the plea of guilty was entered. It was provided to the learned sentencing judge at the sentence hearing on 15 June 2020.
The applicant's written submissions to this Court dwell upon the descriptions that she entered in her employer's MYOB accounting system in relation to each transfer. In oral argument the applicant's counsel said this: [It] is critical to the applicant's case that this Court conclude that what the applicant acknowledged by her plea of guilty in so far as the deception was concerned was that it was the MYOB entries. Further, it was submitted that: although I acknowledge that there's nothing in the evidence which suggests whether [the MYOB notations were] made before, simultaneously or after [each funds transfer], I've approached it on the basis that it's reasonable to approach it on the basis that [they were] probably made after simply because it's reasonable to assume that someone takes the money and then seeks to conceal the fact thereafter […] [It] is reasonable to conclude from the facts that that's the basis upon which she entered the plea. [On] an analysis of the facts and the submissions [on sentence in the District Court] and [the remarks on sentence] the conclusion is that the deception that is said to be operative was the making of the MYOB entries.
On those assumptions counsel submitted that the MYOB descriptions of the transfers, viewed as deceitful representations, were incapable of causing financial benefit to the applicant because each false description was entered after the proceeds of the transfer had been received. It was submitted that there was no agreed fact, nor any evidence, that a person or entity was deceived by the MYOB entries, still less that any person or entity effected the transfers in the applicant's favour under the inducement of being so deceived.
In circumstances where the applicant accepted the statement of facts in the broad terms earlier referred to, without specification of the deceit that had been practised by her or of the mechanism by which that deceit had caused her to receive financial benefit, there is no basis for her now asserting that the deceit must be particularised as the making of the MYOB entries. The material to be examined in order to understand the foundation of the applicant's plea is limited to what was in existence at the date of that plea. I do not accept the applicant's contention that submissions on sentence or the learned judge's remarks on sentence are relevant. In any event, neither the submissions nor the remarks alter the position that in the District Court the applicant made no stipulation that she was pleading guilty on the basis of a specified mode of deceit or a specified mode of causation.
The applicant cannot now, after her plea has been accepted, insist upon particulars of deceit and of causation and then submit that they are incapable of fulfilling the legal elements of the charge. The reality is that the applicant admitted all facts necessary to constitute the offence, including that she practised dishonest "deception" and that financial advantage was obtained "by" that deception. By her plea of guilty the applicant admitted all elements as set out on the indictment. The applicant cannot establish a miscarriage of justice by retrospectively choosing particulars of her deception in such a way as to found an argument that the form of deception could not have been causative.
The applicant's written submissions do not acknowledge the possibility that her manner of operating the employer's bank account may have deceived the bank as to the propriety of the transactions and as to her authority, causing the bank to effect and honour the transfers whereas that may not have occurred if the bank had realised that unauthorised misappropriation of the employer's funds was taking place. The written submissions do not acknowledge the possibility of construing the events as an ongoing deception of the employer. However, those possibilities appeared to be accepted in argument before us. Deception, for the purposes of the offence, does not have to take the form of a verbal or implied misrepresentation and causation may be proved by inference without identifying any individual who was actuated by the deceptive conduct: Decision restricted [2019] NSWCCA 43. It is not necessary to analyse these alternatives in circumstances where the applicant herself did not require the Crown to specify her deceit or the mode by which financial benefit to herself was caused. She was content to leave those elements at a high level of generality for the purposes of the plea. Having done so, it is not open to her unilaterally to specify the elements on appeal and then submit that what she specifies was unsupported by evidence or agreed facts.
An appeal against conviction will only be allowed after a guilty plea if the material before the Court shows that there is a real question about the applicant's guilt: R v Toro-Martinez [2000] NSWCCA 216 at [26]-[27] (Giles JA). In the present case, no question about guilt is raised merely by the applicant showing that in the District Court neither she nor the Crown particularised the deception to which she admitted or the mode by which the deception brought her financial advantage. This case stands in contrast to a situation where fully detailed facts are agreed in the lower court and it can be seen that those facts did not amount, in law, to the offence in respect of which the plea was entered.
On an application such as this the Court is concerned with the integrity of the plea as an admission of guilt: R v Sagiv (1986) 22 A Crim R 73 at 80. In Meissner v The Queen (1995) 184 CLR 132 at 141, Brennan, Toohey and McHugh JJ said: A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.
The circumstances that may establish that a plea of guilty is not a true admission of guilt "include ignorance, fear, duress, mistake, or even the desire to gain a technical advantage": Maxwell v The Queen (1996) 184 CLR 501 at 511 (Dawson and McHugh JJ). On the present application no evidence has been adduced of any such circumstance. The applicant has not sworn an affidavit to contradict the appearance that she exercised a free choice in the entry of her plea, with full understanding and in her own interests. The application to this Court seems to be entirely a construct of her present legal representatives, upon no firmer foundation than the lack of specificity in the charge and in the agreed facts.
During oral argument I expressed the view, to which I adhere, that this is a very unsatisfactory proceeding in the absence of any evidence to contradict the clear picture that at all times the applicant has wished to accept responsibility for her conduct. So far as this Court is aware, she still accepts responsibility for having dishonestly obtained this very substantial sum from her employer over the course of nearly 7 years. The solicitor representing the applicant in the District Court evidently did not find it requisite in her interests to insist upon more precise delineation by the Crown of what had constituted her deceit or of how it had caused financial advantage to accrue to her. There is no merit in the application for leave now brought in this Court, essentially in reliance upon lack of particulars, without any evidence from the applicant to impugn the integrity of her plea.

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