Ming v Director of Public Prosecutions

Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731 Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7 Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 R v SKL; R v JY; R v XGL [2019] NSWCCA 43 Re Minister for Immigration and Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 Sasterawan v Morris [2008] NSWCA 70 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: Judicial Review of Administrative Action and Government Liability (7th edition, 2022, Thomson Reuters) Category: Principal judgment Parties: Leone Ming (Applicant)

Director of Public Prosecutions (NSW) (Respondent) Representation: Advocates:

Solicitor for Public Prosecutions (Respondent) File Number(s): 2021/00204029 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: Ming v R [2021] NSWDC 223 Date of Decision: 2 June 2021 Before: Bennett DCJ File Number(s): 2017/00134009

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was convicted in the Local Court on one count of obtaining financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). He had represented to the complainant that he could procure investment in the complainant's businesses, in return for various payments. He first sought, and obtained, $5,000 by way of an "commitment fee". He then sought, and obtained, $5,000 "to share the costs for the airfares and accommodation and some legal costs". Despite subsequently repeatedly representing to the complainant that he was in Hong Kong undertaking meetings on his behalf, in fact the applicant did not visit Hong Kong. Finally, the applicant sought, and obtained, a "commitment fee" of US$30,000. The applicant appealed that conviction to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). The applicant contended that s 192E(1)(b) of the Crimes Act required that the Crown prove that each instance of the obtaining of a financial benefit was causally connected to a particular act of deception. The applicant further contended that it was incumbent on the Crown to show that each representation which led to the making of a payment was, at the time the representation was made, infected by dishonesty. Bennett DCJ dismissed the appeal, finding that an offence under s 192E(1)(b) could be made out where the evidence clearly established an ongoing course of deception on the part of the applicant. The applicant sought judicial review of that decision, alleging three types of error which he submitted to be jurisdictional: inadequacy of reasoning on the part of Bennett DCJ; a constructive failure to exercise jurisdiction on the basis that Bennett DCJ had failed to respond to substantial, clearly articulated arguments; and a denial of procedural fairness. In the course of the hearing, it was conceded that the procedural fairness grounds did not differ in substance from the grounds based on a constructive failure to exercise jurisdiction. The Court (per Kirk JA, White JA and Mitchelmore JA agreeing) dismissed the summons, and held:

1. Where a claimed failure to accord procedural fairness relates to a failure to address a substantial and clearly articulated argument, commonly it will be both sufficient and appropriate to express this type of concern in terms of constructive failure to exercise jurisdiction: at [23]-[24].

Judgment

1. WHITE JA: I agree with Kirk JA.
2. MITCHELMORE JA: I agree with Kirk JA.
3. KIRK JA: The applicant, who is variously known as Leone Ming and Bruce Francis, was convicted in the Local Court on one count of obtaining financial advantage by deception. The applicant appealed that conviction to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (CARA). Bennett DCJ dismissed the appeal. There is no right of appeal from such a decision of the District Court, so the applicant commenced proceedings in this Court seeking judicial review of the District Court's decision. The applicant accepts that in order to succeed in that application it is necessary for him to establish jurisdictional error in the decision of Bennett DCJ, whom it is convenient to call the primary judge even though this is not an appeal.
4. In his amended summons the applicant lists 12 grounds of review. These are grouped into three categories. The first, headed "Jurisdictional error - failure to give reasons", encompasses grounds 1 to 5. The second, "Jurisdictional error - failure to review", encompasses grounds 6 to 8. Grounds 9 to 12 fall under the heading "Jurisdictional error - procedural fairness". There is a significant degree of overlap between the three categories. All three involve complaints about the primary judge's alleged failure to address certain submissions or evidence. At the hearing the solicitor appearing for the applicant, Mr Tzovaras, agreed that the complaints under grounds 9 to 12 did not differ in substance from grounds 6 to 8.
5. The application for judicial review should be dismissed with costs. This judgment sets out the context in which the issues arise and then addresses the grounds in turn.
6. Before doing so, it is appropriate to address the nature of the legal grounds raised and the extent to which they overlap. In substance, as shall be shown, all of the grounds raised should be understood to allege a constructive failure to exercise jurisdiction. In the context at hand, failure to give adequate reasons is not a separate type of jurisdictional error.

The overlapping nature of the claimed grounds of jurisdictional error

Jurisdictional error by non-superior courts

1. Since the High Court's decision in Kirk it has been recognised that decisions of State "inferior" courts (along with decisions of executive decision-makers) are subject to a constitutionally entrenched susceptibility to judicial review for jurisdictional error in the Supreme Court of that State: Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [97]-[100] (Kirk). The label of "inferior" simply identifies a court that has not been designated a "superior" court. It is up to parliaments to designate courts as superior or not (leaving aside State Supreme Courts): State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [34] and [54].
2. Jurisdictional error has been described as "a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it": Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24] per Kiefel CJ, Gageler and Keane JJ. Put simply, it involves a decision-maker exceeding the authority to decide conferred on them, or failing to exercise that authority when required to do so. A failure by a non-superior court "to comply with a condition of its jurisdiction to perform a judicial function renders any judicial order it might make in the purported performance of that judicial function lacking in legal force": Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33; [2021] HCA 2 at [48] (Oakey).
3. That decisions of non-superior courts are susceptible to review for jurisdictional error does not mean that all notions of such error that have been developed with respect to executive decision-makers are also applicable. In some respects the legal requirements might tend to be more demanding of courts, as in relation to the procedural fairness requirements relating to apprehended bias when, say, compared to Ministers: note Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [102]; see further Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 at [7].
4. By and large, however, judicial errors are less likely to be susceptible to being characterised as jurisdictional. The Parliament is less likely to have intended that a decision of a court be regarded as lacking legal effect if some legal requirement is not complied with. Making authoritative decisions is part of the essence of judicial power: eg Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357; [1909] HCA 36. Thus "the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine": Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58 (Craig). Errors on such matters may be appellable, to the extent an appeal is available: ibid at 180. But on such matters the starting presumption is that the court has "authority to decide" the point, such that even if the court gets it wrong the decision is not deprived of legal effect.

Constructive failure to exercise jurisdiction

1. Here, the applicant's second category in effect alleges a constructive failure to exercise jurisdiction. A wrongful denial of, or failure to exercise, jurisdiction can be jurisdictional error, including by a court: note Craig at 177. Constructive failure to exercise jurisdiction arises where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter. That matter might, for instance, be a statutory precondition to the exercise of the power which it was necessary for the decision-maker to be satisfied of before the power is enlivened. Or it might be a critical argument raised by a party.
2. Such constructive failure can overlap with other types of jurisdictional error. Such overlap is not surprising when it is understood that the term jurisdictional error is to a significant extent a label of conclusion, and that it is not possible neatly to map out the metes and bounds of the notion: note Kirk at [64], [66], [71]-[73]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [77] per Robertson J; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [2]-[3] per Allsop CJ and [62] per Griffiths J.
3. The variant of constructive failure invoked here was that discussed by members of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (Dranichnikov). In that case Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts" was both a constructive failure to exercise jurisdiction and a failure to accord natural justice: at [23]-[25]. Kirby J similarly found a constructive failure in that case where the decision-maker's mistake "amounts to a basic misunderstanding of the case brought by an applicant": at [88].
4. A risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review. Further, as discussed below, it is not necessary for judicial decision-makers to address every argument or every piece of evidence in delivering reasons. Hence the need to show that there has been a failure to grapple with a substantial, clearly articulated argument. That language has been reiterated by members of the High Court: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13] per Bell, Gageler and Keane JJ and [105] per Nettle and Gordon JJ; Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [27] per Kiefel CJ, Keane, Gordon and Steward JJ. The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved.

Procedural fairness

1. That a decision-making body is established as a court means that "any jurisdiction conferred on it is necessarily conditioned by the requirement that it observe procedural fairness in the exercise of that jurisdiction": Oakey at [47]. Providing procedural fairness is an essential attribute of the exercise of judicial power by a court: Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 (Condon) at [67], [156], [177]. Of course, what procedural fairness requires depends upon all the circumstances and may be affected by legislation. As French CJ has said, "[p]rocedural fairness, manifested in the requirements that the court be and appear to be impartial and that parties be heard by the court, is defined by practical judgments about its content and application which may vary according to the circumstances": Condon at [68], see also [156] per Hayne, Crennan, Kiefel and Bell JJ.
2. There is no doubt that a failure by a court to accord procedural fairness can lead to invalidity of decisions of non-superior courts: see eg Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]; Toth at [62]-[77]. That point was recently made, and illustrated, in Oakey, which related to a bias application. The non-superior court there had been exercising administrative not judicial power, but the High Court's decision did not turn on that: see [47].
3. In this case, the applicant's arguments about lack of procedural fairness are in substance the same as those put in terms of failure to exercise jurisdiction. As explained above, in Dranichnikov Gummow and Callinan JJ indicated that in that case the failure to consider a substantial, clearly articulated argument was both a constructive failure to exercise jurisdiction and a failure to accord natural justice.
4. It is thus understandable that the applicant sought to express his concerns in both ways. But that such grounds can be expressed in terms of procedural fairness does not necessarily mean it is useful to do so. Here, doing so added nothing of substance to the legal analysis. Further, whilst such errors can be characterised as a failure to accord procedural fairness, the gravamen of the complaint is that the decision-maker did not grapple with material arguments clearly put. In other words, the core notion at play is that the decision-maker did not complete the task required of them.

Failure to give adequate reasons

1. The applicant's other claimed category of jurisdictional error - failure to give adequate reasons - is more complex. There is no general common law duty on executive decision-makers to give reasons for their decisions: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 662; [1986] HCA 7; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [43]. The position is different for judges, for whom the requirement to give reasons is a normal, though not universal, incident of the judicial process: see Osmond at 666-667. This general duty has been seen as an essential, and constitutionally required, attribute of being a court exercising judicial power: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]-[59], [68], [92]. That does not mean all judicial decisions require reasons. As French CJ and Kiefel J stated in Wainohu at [56] (see further Heydon J at [147]): "The duty does not apply to every interlocutory decision, however minor. Its content - that is, the content and detail of the reasons to be provided - will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision."
2. Several reasons, which overlap, have been given for the duty on courts to give reasons. First, the very nature of the exercise of judicial power is that it resolves disputed issues of fact or law in a way that is reasoned. That is why it has been said that the giving of reasons is "a hallmark distinguishing substantive judicial decisions from arbitrary decisions": Wainohu at [92] per Gummow, Hayne, Crennan and Bell JJ. In the same case, French CJ and Kiefel J linked the duty to another essential aspect of the judicial process, openness (at [58]): "The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion."
3. Secondly, giving reasons facilitates justice being seen to be done: see eg Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) at 278-279 per McHugh JA. So doing may assist in avoiding the unsuccessful party not only being disappointed but having a sense of grievance and disturbance because they cannot understand why the decision went against them: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA, referring to Connell v Auckland City Council [1977] 1 NZLR 630 at 634. More broadly, "the general acceptability of judicial decisions is promoted by the obligation to explain them": Wainohu at [56].

Core facts

1. The following facts are not now in dispute. First, as regards the applicant's name, the primary judge explained the situation as follows (at [45]): "He changed his name from Bruce Francis ten years before to Leone Ming when he married a Chinese of the Buddhist faith. He adopted the name for luck, used it when doing business in China, and used the name Bruce Francis when dealing with Australian clients."
2. At the time of the conduct the basis of the charge, the applicant was a director of Commercial Pacific Alliance Pty Ltd (CPA), the name of which was subsequently changed to FWC International Pty Ltd. The only other director of CPA was a Mr Manoel Banawa.
3. The complainant was a Mr Michiel Walters. He was the founder and controller of Perara Pty Ltd (Perara), along with a related company, Industrial Process Technologies Pty Ltd. In 2013 the business run through Perara began to experience cash flow difficulties. In order to address these difficulties he searched the internet for a broker who could sell equity in Perara. He came across CPA, which he then contacted.
4. After negotiations in mid-2015 between the applicant and Mr Walters, it was agreed that CPA would procure the sale of 50% of the shares in Perara. Perara agreed to pay a "commitment fee" of $5,000 into a trust account until completion of the share sale, or to be refunded after 90 days from the start date of the marketing of the shares. The terms of this agreement are set out in a "Commission Agreement", attached to an email sent by the applicant to the complainant on 25 August 2015.
5. There is no evidence that there was such a trust account. The payment of $5,000 was made by Perara to CPA on 28 August 2015. The money was paid into an account with Bendigo Bank which was in the name of CPA and in respect of which the applicant was the sole signatory. The applicant withdrew and spent the money.
6. On 11 September 2015, the applicant wrote to the complainant, and explained that he intended to travel to Hong Kong to meet investors who were willing to invest $2 million in Perara. He said that he required the complainant "to share the costs for the airfares and accommodation and some legal costs of $5,000". Despite subsequently repeatedly representing to Mr Walter that he was in Hong Kong undertaking meetings on his behalf, in fact the applicant did not visit Hong Kong.

Decision of Covington LCM

1. Covington LCM was satisfied beyond reasonable doubt that the applicant obtained a financial advantage by deception. He noted that the applicant was "the sole name on the account" and explained that "[i]t was the accused, and him alone, that could access the money that was transferred". It was in these circumstances that the account was "depleted" and "cleared out".
2. In finding beyond reasonable doubt that the financial advantage obtained by the applicant was obtained as a result of deception, the magistrate referred to correspondence between the applicant and the complainant which induced the complainant to cause the monies to be paid into CPA's account. His Honour explained that the separate payments must be considered together, because "it would be unrealistic to treat them in isolation.". Nonetheless, his Honour did consider each of the payments in turn.
3. In respect of the first $5,000, he explained: "I note that the terms state that $5,000 will be held in a trust account until the completion of the sale, or back to the client after 90 days from the start of marketing. I note there was no such trust account. … For the first $5,000 the representations contain that there is a belief that he [the applicant] can procure the funds. There is reference to a meeting at a patent office. … Then the communication ramps up, both in content and also in expectations. It states things … that there is funding - the investors have agreed to assist in funding $2 million and have secured the sale of a plant to be installed in South-East Asia."
4. His Honour separately considered the second $5,000, and referred to "the lie" about being in Hong Kong.
5. In respect of the payments of $14,000 and $27,200, his Honour appears to find that the applicant was behind the letter of 25 August 2015 in which the request for US$30,000 is made: "Then at a letter dated two days prior to when the accused said the term sheet was being sent shortly is given to Mr Walters via the accused. Exhibit 26 says, the letter is said to be from Mr Banawa, as was exhibit 27. Both of the letters are in complex terms. Both the language that is being used and what is being referred to, and these letters are said to be from the accused, and this is from a person that is described by Mr Innes on p 15 on 29 August 2018, it's at transcript 20, that he is not particularly good at English. Then as a result of the terms sheet that was sent on 2 October and 9 October 2015, the final payments were made."

Appeal to the District Court

1. A key issue raised by the applicant in his appeal to the District Court was the correct approach to dealing with an alleged contravention of s 192E(1)(b) in circumstances where there was one charge relating to three sets of payments. The applicant saw the provision as requiring that the Crown prove that each instance of the obtaining of a financial benefit was causally connected to a particular act of deception. The applicant further contended that it was incumbent on the Crown to show that each representation which led to the making of a payment was, at the time the representation was made, infected by dishonesty. The issue, in the applicant's eyes, was one of temporality. The main way that the applicant expressed this argument was that the charge suffered from duplicity or ambiguity. But, as shall be seen, the applicant's argument that each payment needed to be assessed separately suffused his arguments to the primary judge.
2. The prosecution rejected such an approach. It sought to characterise the events as part of a single course of conduct, saying: "the Crown can rely on the conduct of the accused after money had been transferred to him to establish that later deceptive conduct rendered the whole course of the transaction deceptive and dishonest. As such, the Crown does not need to establish that the appellant engaged in overt lies about external facts before the complainant transferred money, though the Crown submits that there is evidence of such lies in the present case. It is sufficient to establish that the appellant was being dishonest about his own intentions while entering into the various contracts with the complainant to prove that he had deceived the complainant."
3. The primary judge accepted that the approach supported by the prosecution was appropriate. He addressed and rejected the duplicity argument at [92]-[105], stating at [102] that the charge: "adequately addresses the proposition that the scope of the misconduct alleged of the Appellant, amounting to deceptive conduct, extended throughout the course of their dealings, the purpose of which on the part of the Complainant was to have procured an investor in the Complainant's companies and to this end the Complainant made the payments to the Appellant in furtherance of that purpose."
4. Consistently with that approach, his Honour said at [111] that "I agree that this prosecution succeeds upon the documents exhibited in the courts [sic] of the hearing which clearly establish an ongoing course of deception on the part of the Appellant" (see also at [125]).

Ground 1

1. In this Court the applicant did not seek to challenge the primary judge's conclusion that (as it was characterised in argument in this Court) "it was one course of conduct to which all pieces of evidence from the beginning to the end were relevant". Rather, the applicant's representative said in oral submissions: "his Honour was entitled to come to that conclusion, but that doesn't cure - that determination needed to be supported with reasoning based on the evidence, and that in my submission is lacking and it is lacking because the relevant parts of the evidence had not been addressed."
2. As shall be seen, the applicant's acceptance that it was open to the primary judge to approach the matters as involving one overall course of dishonest conduct undermines a number of the arguments now sought to be made.
3. As noted, the applicant's grounds 1-4 are grouped under the heading "Jurisdictional error - failure to give reasons". As explained, that is not a distinct ground of jurisdictional error in this type of case, namely seeking review of a District Court decision considering an appeal in a criminal matter from the Local Court. However, these grounds may be seen as in substance alleging a constructive failure to exercise jurisdiction, in particular by failing to consider a substantial, clearly articulated argument. That being said, in this case there is no reason to think that considering them simply in terms of failure to give adequate reasons would lead to a different result.
4. By his first ground, the applicant alleges that the primary judge fell into jurisdictional error by failing to "provid[e] reasons for his finding that the Appellant [sic] acted dishonestly in the deception, including the primary judge's failure to identify the specific evidence upon which he relied, and the reason for such reliance". The applicant's written submissions specify four complaints.

General criticism of [91]

1. First, the applicant identifies [91] of the judgment as containing findings unsupported by adequate reasons. It reads: "Upon combination of the basic facts available from the evidence led by the prosecution, I find that the Crown has proven that the Appellant acted dishonestly in this deception. I am satisfied that this is the only conclusion to be drawn from the consideration of the basic facts in combination with the principals applicable to circumstantial evidence discussed earlier."
2. This paragraph merely foreshadows his Honour's ultimate determination. It comes before his Honour's consideration of the evidence, which begins at [111]. It cannot - at least on its own - be impugned as an instance of inadequate reasoning, let alone a constructive failure to exercise jurisdiction.

Claimed failure to refer to Commission Agreement

1. The applicant then complains that the primary judge failed to refer to part of Exhibit 20. That exhibit is an email dated 25 August 2015 to which is attached the "Commission Agreement" which contains the agreement between Perara and CPA. The applicant submits that failure to refer to the Agreement "resulted in a gap in the judge's reasoning", in particular in relation to the first payment of $5,000. The applicant does not articulate what this gap might be. Nor is it correct to say that the primary judge failed to refer to the letter of engagement. The primary judge explained: "[112] … Exhibit 20 includes the first of the tranche of patent lies by the Appellant: he was 'in the final stages of getting the investor to transfer money for the Deposit into our trust account while we do our DD for them.' The Appellant sought $5,000 to be paid into his trust account, which did not exist, to be held there until refunded. [113] Appellant made immediate use of the $5,000 for personal expenses."
2. Exhibit 20 was thus identified in terms. The request for payment of $5,000 into the "trust account" appears in the Agreement and not the covering email, indicating that the primary judge did take account of and refer to the Agreement.

Claimed failure to refer to Exhibit 36

1. The applicant also contends that the primary judge's reasons were inadequate because he failed to refer to Exhibit 36, which went to the circumstances in which the applicant did not travel to Hong Kong. The exhibit is a witness statement of John Rossell Innes dated 18 October 2017. Mr Innes deposed that, in a teleconference in which he participated along with the applicant and Mr Banawa, the applicant explained to Mr Banawa that he did not travel to Hong Kong because Mr Banawa had said that he, that is Mr Banawa, was going to be away but would come to Australia instead. The evidence of this odd conversation was admitted under s 65 of the Evidence Act 1995 (NSW) on the basis that Mr Banawa was not available to give evidence. The applicant's representative in this Court accepted that "it doesn't have much weight because it is hearsay". The applicant did not give evidence in either of the Local or District Courts.
2. Despite the concession as to weight, the applicant contends that the evidence ought to have been addressed by the primary judge because it was the subject of a submission before the District Court, namely that the second $5,000 obtained by the applicant was not obtained as the result of the deception, because he did not deceive the complainant as to the necessity of travelling to Hong Kong. This piece of evidence, the applicant contends, indicates that he had intended to travel to Hong Kong at the time the representation was made, such that the representation was not dishonest at the time it was made.
3. The applicant referred this Court to the written submissions provided to the primary judge, in which this argument was made. But the premise of the identified part of those submissions was that each payment received by the applicant had to be considered separately. As discussed above, that premise was rejected by the primary judge, and the rejection of that approach is not challenged in this Court. Having found at [111] that the applicant had engaged in an "ongoing course of deception", his Honour dealt with the request for $5,000 for travel to Hong Kong at [115] in support of that finding of ongoing deception: "Exhibit 23 is a letter from the Appellant representing that he had secured investors in south east Asia and that he intended to fly to Hong Kong to finalise arrangements. He sought another $5,000 for this. He did not travel as he represent he was intending to do. He did not use the money toward the represented purpose."

General criticism of [127]

1. Ground 1 also impugns [127], which comes after the primary judge's consideration of the evidence. It reads: "I am satisfied beyond reasonable doubt that between 38th August 2015 and 9th October 2015, the Appellant dishonestly obtained for himself the financial advantage of $51,200.00 deposited to his account, by deception, by presenting documentation to sell 50% equity of Perara Pty Ltd and Industrial Process Technologies Pty Ltd to Mega Platinum Group on behalf of the Complainant, and that he did so dishonestly without any right to that fund."
2. The applicant says that no adequate reasons are provided for this finding. Yet the paragraph is in the nature of a conclusion, as distinct from a specific finding about a specific fact in issue. Those findings are made at [112] to [126].
3. The applicant submits that the primary judge did not address the causal connection between the applicant's false representations and obtaining the financial benefit. That complaint is unfounded. The primary judge found that each of the payments made by Mr Walters was in response to requests from the applicant: judgment [112], [114]-[116], [118]-[119]. Those representations were found to have been made as part of a deceptive and dishonest course of conduct. That sufficed to establish that the applicant had obtained financial advantage by deception.
4. Ground 1 is not made out.

Ground 2

1. In ground 2 the applicant challenges the way in which the primary judge disposed of his submission that "the conduct upon which the prosecution relies as deception did not accompany the transmission of the funds". The primary judge referred to this argument at [107]. The applicant complains that the primary judge's description of the argument is inaccurate, and says that "the primary judge gives no reasons for not accepting the [applicant's] submission". Even apart from the erroneous focus on the duty to give reasons, this ground is without merit.
2. The submissions which the applicant says were mischaracterised were those at [18]-[20] and [34]-[35] of the applicant's written submission before the primary judge. At [18] the applicant submitted (citations omitted): "Inherent in the notion of deception is causation. There must be a causal connection between the deception used and the financial benefit obtained. It is an essential ingredient of the offence under s.192E that the cause of the payment of the money was the deception used by the Appellant. The deception must have been the means by which the financial benefit was obtained, or the effective cause of the financial benefit being obtained."
3. The submission at [19] was that deception for the purposes of s 192E(1)(b) must operate on the mind of the person to whom it is directed. The submission at [20] was merely an uncontroversial submission about onus. In response, his Honour quoted with approval, at [107], the view expressed in R v SKL; R v JY; R v XGL [2019] NSWCCA 43 at [70] that "[t]he question will always be: has the Crown proved that the deception was the reason the property was obtained". His Honour's acceptance of that statement has not been suggested to be erroneous. His Honour thus did not dispute the need to establish causation.
4. The key dispute was whether each payment was to be viewed in a segregated way. At [34]-[35] the applicant submitted that as regards the second payment there was no causal connection between the applicant's representations to the complainant that he was in Hong Kong and the financial benefit derived by the applicant, because he did not travel to Hong Kong only after having received the payment. This submission was linked to the point addressed above that the applicant claimed he only did not travel to Hong Kong because Mr Banawa told him that he was away (established only by Mr Innes' recitation of what Mr Banawa subsequently said in a phone conference).

Ground 3

1. Ground 3 impugns the primary judge's conclusion at [78] of the judgment, which reads: "I have come to the view, bringing forth the basic facts for which the Crown contends with reference to Exhibited documents, and the additional facts I have drawn from the evidence, that the only rational conclusion to reach in this case is that the Appellant is guilty of this offence."
2. The applicant complains that the primary judge "failed to identify the specific evidence upon which he relied, and the reason for such reliance". Like [91] of the judgment which is impugned in ground 1, [78] merely foreshadows the primary judge's ultimate determination which comes at [127], following his review of the evidence at [112] to [122]. Ground 3 is without merit.

Grounds 4 and 5

1. The applicant's grounds 4 and 5 were again directed to challenging the conclusions expressed at [78] and [91] of the judgment. The applicant addressed the two grounds together in his written submissions, claiming that "the primary judge failed to give reasons for such finding and conclusion, other than his reference to the Exhibits which he described in [112] to [122]".
2. To the extent these grounds travel beyond grounds 1 and 3, they appear to be a generic complaint that the primary judge did not adequately articulate his reasons for reaching the conclusion that the charge had been made out. The applicant has not pointed to any substantial and clearly articulated argument which was not addressed. Whilst the judge's reasons were relatively brief, they cannot be characterised as involving a misunderstanding of, or a constructive failure to engage with, the task of determining the applicant's appeal from the Local Court. These grounds are not made out.

Ground 6

1. Grounds 6-8 fall under the heading "Jurisdictional error - failure to review". They focus, respectively, on the first, second and third payments.
2. Under ground 6 the applicant claims that that the primary judge failed to "address and determine" a submission which he made in respect of the payment of the first payment of $5,000 (into the claimed "trust account" pursuant to the Commission Agreement), and that the primary judge failed to take into consideration "critical aspects" of the evidence upon which the applicant relied in support of this submission. The submission was that the applicant's request for the initial $5,000 and his representations in the Commission Agreement did not constitute dishonest conduct because the appellant "complied" with these representations. This is said to constitute a failure on the part of the primary judge to conduct a rehearing in the way required by s 18 of CARA. As discussed above, grounds 6-8 assert a constructive failure to exercise jurisdiction.
3. The applicant's argument to the District Court was relevantly to the effect that he had performed obligations under the Commission Agreement, including visiting Perara's facilities after the Commission Agreement was entered into in order to perform due diligence, seeing a patent attorney, and consulting with Perara's accountant. Various extracts of the transcript of evidence in the Local Court were cited in support of the factual claims. The nub of the submissions was that the prosecution had failed to prove that the initial $5,000 was obtained by deception or dishonestly.
4. It is correct that the primary judge did not address this argument in terms. It cannot be said, however, that that constitutes a constructive failure to exercise jurisdiction. First, again, the premise of this argument was that each payment was to be viewed separately, rather than as part of one course of conduct, being a premise which the primary judge rejected.
5. Secondly, his Honour did address the payment made under the Commission Agreement, in the terms quoted above at [76] when addressing ground 1. The Commission Agreement referred to payment of "a commitment fee of $5,000 to be held in Trust Account until completion of the share sale or to be refunded back to the client after 90 days from start date of marketing" or Perara. The relevance of a submission about undertaking due diligence and so forth, as an explanation for what occurred to the $5,000, is not apparent. In any case, as his Honour found, there was no trust account and the applicant used the money for personal expenses. In that context, it cannot be said that the submission about what the applicant did by way of due diligence (etc) needed separately to be addressed, nor that that submission was critically material.

Ground 7

1. Ground 7 is similar in nature to ground 6. It also concerns an alleged failure to take into consideration submissions made to the District Court in relation to the second payment of $5,000 made by Mr Walters, relating to the applicant's proposed travel to Hong Kong. The applicant said that the primary judge did not address the submissions made nor the evidence referred to in those submissions.
2. To a significant extent this argument has already been addressed when addressing grounds 1, 2 and 6. Once again, this challenge founders on the rock of the primary judge having adopted a course-of-conduct approach, which rendered it unnecessary to consider each of the applicant's submissions about how the obtaining of each payment, when viewed in isolation, was said not to manifest dishonesty and deception, as discussed above at [89]-[90].
3. In his submissions to this Court the applicant identified four pieces of evidence which he said were not addressed. The first is the witness statement of Mr Innes, relating to the claimed explanation of why the applicant did not go to Hong Kong. The second piece of evidence is Exhibit 23, being a letter from the applicant to the complainant dated 11 September 2015. This evidence was considered by the primary judge at [115].
4. The third piece of evidence is an extract from the transcript from the cross-examination of Mr Walters. He said that he understood from the terms sheet that Mr Banawa was the chair of MEGA Platinum Group, and that he understood Mr Banawa had passed on the terms sheet to the applicant to then pass it to the complainant. The significance of this evidence to ground 7 was not explained to this Court by the applicant. Nor did the applicant identify the significance of the fourth piece of evidence, which is a set of extracts of transcripts from the cross-examination of the complainant in which he confirms that the applicant visited Perara's factory to perform due diligence. In any event, that evidence has been addressed above when considering ground 6.
5. Again, the applicant must show that the primary judge failed to address a central or critical element of the case. As explained above at [80] to [81], these complaints in respect of the primary judge's treatment of the request for $5,000 for travel to Hong Kong misunderstand the judgment. His Honour considered that the request for the $5,000 was infected by the same dishonesty as had characterised the transaction from the beginning. His Honour referred to certain pieces of evidence in coming to this conclusion. It was not incumbent upon him to refer to every piece of evidence raised by a submission the premise of which his Honour had rejected.

Ground 8

1. Ground 8 is akin to grounds 6 and 7. The applicant complains that the primary judge fell into jurisdictional error by failing to address and determine the applicant's submission that he: "made no representations in relation to the third payment of US$30,000, representations in respect of which were made by Mr Banawa on behalf of Mega Platinum Group, and by failing to take into consideration critical aspects of the evidence upon which the Appellant relied in support of that submission."
2. The applicant referred again to a portion of his written submissions to the District Court, which in turn identified various evidence. The relevant portion of the submission commenced by stating that "[t]here was no dishonest conduct by the Appellant in relation to the third payment of US$30,000 … In fact the Appellant had no involvement in respect of those payments, other than acting as conduit of such payment being made to Mega Platinum Group via FWC's bank account". Once again, the premise of the submission was that each payment was to be considered separately.
3. Evidence referred to in that portion of the submissions, which the applicant said should have been but was not addressed by the primary judge, was: Exhibit 3, being the 2015 Investment Terms Sheet dated 23 September 2015; Exhibit 19, being an email from the complainant to the applicant of 21 August 2015; Exhibit 26, being a letter from Mr Banawa to the complainant dated 23 September 2015; Exhibit 27, being a letter from Mr Banawa to the complainant dated 29 September 2015, and several extracts from the transcript before the Local Court.
4. As for Exhibit 3, the applicant has not explained why the terms sheet was critical evidence, failure to refer to which constituted a failure to address a central or critical element of the case or claim. Indeed, it is not clear what support the applicant could draw from Exhibit 3 for his submission that he "made no representations in relation to the third payment", given that the front page of the terms sheet indicates that he, the applicant, was the author of or was responsible for the document. Further, the investing party was identified in the terms sheet in the following way, which suggests at the least a close link between the investor and CPA, being the company controlled by the applicant and Mr Banawa: "Mega Plantinum [Sic] Group c/o Gadens & Company (Solicitors) FWC International Pty Ltd CPA Pacific Pty Ltd"

Grounds 9-12

1. As discussed above, the applicant accepted that that he was in substance making the same points under grounds 9-12 as had been made under grounds 6-8, but said they can also be seen as a denial of procedural fairness. Characterising the grounds in that way does nothing to improve their prospects. The applicant cannot succeed on these grounds for the reasons set out above.

Conclusion

1. None of the grounds of judicial review has been made good. An issue arose in the hearing as to whether, if any error had been made out, that error would be characterised as material. It is not necessary to address that issue in light of the conclusion reached that no relevant error has been established.
2. For the reasons set out above the orders of the Court should be as follows: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2022