Ming v R

District Court of NSW|2021-05-11

Ted Tzovaras (solicitor for the Appellant) Nicholas Lawrence (solicitor for the Respondent) File Number(s): 2017/00134009 Decision under appeal Court or tribunal: Sydney Local Court Jurisdiction: Criminal Date of Decision: 14 March 2019 Before: D Covington LCM File Number(s): 2017/00134009

Introduction

Leone Ming was found guilty in the Local Court, The Downing Centre, on of an offence contrary to s 192E(1)(b) Crimes Act 1900 expressed in the following terms: Between the dates 28th August 2015 and 9th October 2015, did dishonestly obtain a financial advantage for the said Leone Ming, to wit $51,200.00, by deception, namely by presenting documentation to sell 50% equity of Perara Pty Ltd and Industrial Process Technologies Pty Ltd to Mega Platinum Group on behalf of Michael Walters..
He now appeals from the magistrate's determination.
The proceedings in the Local Court extended over 14 days between October 27, 2017 and March 12, 2019.

The Conduct of the Appeal

The appeals are pursuant to the Crimes (Appeal and Review) Act 2001, which provides in s 18 that an appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by s 19. There has been nothing in these appeals to engage that provision.
S 18(2) provides that fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.
The matter was presented upon the transcript of the evidence before the magistrate and the exhibits tendered, all of the material was assembled in folders tendered by the Crown and marked exhibit A. The transcript included the reasons for the magistrate's decisions which I have read for the assistance they might provide.
The decision to be made is whether the Crown has upon that material established the guilt of the Appellant. It is for the Court to form its own judgement of the facts upon the material tendered, bearing in mind that the magistrate had the advantage of observing the witnesses as their evidence was taken.
It is not necessary to find error on the part of the magistrate, and whether or not error by the magistrate has been demonstrated, this Court must embark upon analysis and assessment of the material tendered to determine whether it is satisfied that the Crown has established the essential elements of the charge beyond reasonable doubt.

The Application to Adduce Fresh Evidence

There is an application to adduce what is said to be fresh evidence. The Appellant sought to adduce evidence pursuant to s 65(8) Evidence Act 1995 by way of two statements purporting to be from Manoel Bronilla Banawa. On the last page of the first of those the date February 7, 2018 is endorsed. The second of those has the date March 10, 2019.
The second statement was offered to the Local Court after the finding of guilt and before the imposition of sentence and was therefore properly rejected by the magistrate.
The first however was received by the magistrate but not admitted upon the application of s 135 Evidence Act 1995.
The term "fresh evidence" is defined in s 3(1) Crimes (Appeal and Review) Act 2001: "fresh evidence", in relation to appeal proceedings, means evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen.
The Crown submitted at least in respect of the first of the statements that this is not fresh evidence for it was tendered in the Local Court and excluded by the magistrate upon application of s 135 Evidence Act 1995. I agree with the Crown submission on this point, and the approach to be taken is for the admissibility of the evidence provided by the first statement to be considered in the determination of the appeal from conviction.
The second statement is evidence offered in addition to the evidence given in the proceedings in the Local Court, and in some respects must be also in substitution for parts of the initial statement because of differences between the assertions in the second read against those in the first. Thus it must be that the evidence by way of the second statement is fresh evidence within the meaning of that term given by the definition.
I have come to the view that in the circumstances it is not in the interests of justice to allow the Appellant to adduce the second statement as fresh evidence, however, I am also of the view that the tender of both documents ought to be refused upon the application of s 135 Evidence Act 1995.
The first reference to the witness from whom evidence is offered was on October 27, 2017 when the matter was listed for hearing. The witness, not named in the transcript of that day, was said to be unwilling to assist the prosecution and therefore would not be called in the prosecution case, but in the course of discussions between the prosecutor and the solicitor then appearing for the Appellant it was resolved that the prosecution would call the witness and have him available. The complication was that he was in Hong Kong and arrangements would be required for audio visual link facilities. The Appellant was said to have been in recent contact with the witness who indicated his willingness to give evidence in the proceedings.
The matter was adjourned to November 3, 2017 but there is no transcript of that day. The next transcript is from February 14, 2018 when the Appellant's present solicitor appeared.
The transcript of March 22, 2018 records an exchange in which the Appellant's solicitor announced his intention to tender what must have been the first of the statements from the proposed witness. The voir dire for the determination of the admissibility of that document is recorded in the transcript of August 27, 2018. The Appellant gave evidence in the voir dire confined to his knowledge of and association with the proposed witness, and his efforts to have him come to Australia to give evidence. At page 22 of the transcript of August 27, 2018 the Appellant described the refusal of the proposed witness to come to Australia go give evidence, citing his distrust of the police who had initially sought to speak to him about the investigation into the Appellant's alleged misconduct. According to the Appellant the proposed witness agreed to provide a statement which arrived in the form of the first of the statements.
There was no evidence in the Local Court or offered in the conduct of the appeal from any person who purported to see, hear, or otherwise perceive the representations upon which the Appellant would rely. The representations are not in affidavit form, though in each case they employ the formulation of the jurat used in the creation of statements for the prosecution. There is a signature representing to be that of a witness to the making of the statement but no name in readable form for that person.
The Appellant did not give evidence in the substantive hearing upon the issues proof of which fell to the prosecution.
The proposed witness was not called in the hearing of the appeal and no application was made to have his evidence adduced by audio visual link from where he might have been at the material times. The application relied upon the application of s 65 Evidence Act 1995 which applies in criminal proceedings for the admission of representations from a person not available to give evidence about an asserted fact. Relevantly, the section provides, (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) ... (3) ... (5) ... (4) ... (7) ... (8) The hearsay rule does not apply to - (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation (9) if evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that - (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made
There are notice requirements for the tender of material under this provision but there is no issue raised regarding that aspect.
The Appellant's submissions note the findings by the magistrate as to the unavailability of the proposed witness and that the Appellant had taken all reasonable steps to have the witness available. This evidence came from the Appellant in the Local Court in respect of the first statement but there was no such evidence given in respect of the second statement. The unsuccessful application to re-open the proceedings is recorded in the transcript of March 12, 2019 when the matter was listed for the determination of sentence. As I noted there was no evidence offered in the hearing of the appeal upon the unavailability of the witness though the content of the second statement includes reference to his communications with the officer in charge at paragraph [28] and following. His assertions of disquiet regarding the conduct of police are to be found in the first of the statements.
The Appellant's submissions in support that it is in the interests of justice that the statement be admitted include the asserted significance he had in the transactions in which he engaged with the Appellant said to be in furtherance of the agreement with the Complainant; that his significance as a witness was appreciated in the earliest stages of the prosecution by the Appellant and the prosecution; that neither the prosecution nor the Appellant were able to have him attend court; references were made to him by the prosecutor throughout the proceedings; and the observation by the magistrate that the statement first provided was of great assistance to the Appellant.
The Crown argues that it is not in the interests of justice to admit either statement for reasons to which I shall come. The premises upon which the Appellant relies do not persuade me that any one of them or their entirety in combination support the contention that it is in the interests of justice to admit the second statement.
I agree with the Crown submission that for each of the documents upon the material before the court it could not be said that the proposed witness is unavailable. The Appellant has clearly been in contact with him sufficiently for the purposes of having the statements prepared and sent on. The unwillingness to travel to Australia to give evidence could have been overcome with appropriate arrangements for the witness to be presented by audio visual link, in which it appears he would not participate. The Appellant can establish no more than that, the witness was not willing to be available to give evidence even upon the alternative arrangements that could be put in place. In the second statement at paragraph [7] he includes: There was then a question and an answer discussion between Mr Tzovaras and myself in which I gave an outline of the evidence that I would be prepared to give in court as a witness in these proceedings. I set out below an outline of such evidence.
I agree with the Crown submission that the statements in their present form are not admissible. The evidence must be in the form of representations by another who saw, heard or otherwise perceived the representation being made. These are no more than documents purporting to be statements by the proposed witness with no evidence from any witness asserting that they saw, hearing, or otherwise perceived the representations being made.
I agree with the criticism made by the Crown regarding the content of the documents, including whether any of them or which of them are first hand representations of the witness rather than representations upon which he was purportedly corrected in the course of communication with the Appellant.
I agree with the Crown submission that the probative value of the content of these statements is limited and far outweighed by the unfair prejudice that arises from it.
S 135 Evidence Act 1995 provides, The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time
The Crown points to Exhibit 36, a statement by John Innes representing that the Appellant guided the proposed witness upon which his evidence should be; the provision of a statement by the proposed witness to police that he had no knowledge of the complainant, and Exhibit 26; a letter allegedly from the proposed witness incorporating lies by the Appellant as to the use to which he put the money received from the Complainant.
I agree with the Crown submission that lack of opportunity to cross examine the proposed witness engages s 135(a) Evidence Act 1995.
I would refuse to admit either statement from the proposed witness.

Onus and Standard of Proof

As this is a criminal prosecution the burden of proof of the guilt of the Appellant is upon the Crown in respect of every element of the offence charged.
The Appellant has no burden of proof. There is no obligation upon the Appellant to prove any fact or issue in dispute. It is not for the Appellant to prove his innocence but for the prosecution to establish his guilt.
The Appellant is entitled to the presumption of innocence.
The Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute, but it must prove to that standard each element of the offence.

The Appellant's Interview

The first witness called in the prosecution case was Detective Senior Constable John Dib. He commenced his work in the investigation of the matter after it was allocated to him with the case file including a statement by the Appellant and the COPS entry recording the commencement of the matter. His work began at some point after access to that material, and before August 23, 2016 when he approached the Australian Securities and Investment Commission in the course of his enquiries.
Documents tendered through him included Exhibit 1, a transcript of an interview in which the Appellant participated recorded by Constable Lucie Francis shortly after the matter was brought to the attention of police. The document is in the form of questions and answers recorded on a pro forma statement document on June 21, 2016.
The Appellant was cautioned at the outset but continued in his participation in the process nonetheless. In this document the Appellant represented the following matters:
In the company FWC International Pty Ltd, formerly known as Commercial Pacific Alliance - ABN 84134263291 - "[I] am the managing director and I'm the senior intermediary/negotiator. I go between the client and the funder, business to business. I am a facilitator for business agreements. I am a hand holder for transactions."
"Mick Walters" is a client with whom he had an agreement to procure an investment into his business.
The agreement was verbal, and also - "... via paper and letter/emails/text messages agreement. Mick WALTERS has not mentioned any work that I have done to go out of my way to help him without charging him. I told WALTERS that he needs to calm down when he has recently been dealing with me. He has been sending me text messages and calling me non-stop and I was contemplating coming to the police for harassment. My lawyer told me to say nothing to him so he would hopefully calm down but it made things worse."
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.
Walters and the Appellant's company did not sign any document as a "civil agreement" - "... All agreements have been signed with a party in Hong Kong. This company is called Mega Platinum Asia."
The director of Mega Platinum Asia is Noel Banawa. He provided some contact details and undertook to email the complete details of the company. Accompanying the statement is photocopy of the Appellant's New South Wales driver licence and a page of his passport, and two emails from Manoel Banawa to the Appellant with particulars of his company and his Hong Kong telephone number, sent from the Appellant to Constable Francis on June 22, 2016.
He acknowledged that $52,000.00 was received from Walters into a bank account registered to Commercial Pacific Alliance BSB 633000 A/c 135515930. [1]
Given the opportunity to say more if he wished - "The reason I stopped communicating with WALTERS is that he's made numerous threats to me personally 'A bullet will not stop me from getting it.' I in no way have ever threatened him and only have ever told him to calm down and stop his ranting. He is constantly harassing me over a months period, about 100 text messages and emails. I believe that he is in financial and emotional stress and his financial problems with his business. Mega Platinum Asia is still willing to hold up its end of the deal, it is just taking longer than expected. The funder always said that WALTERS would get his money returned once the collateral matured."
By necessary implication the interview advances the proposition that through financial stress Mr Walters pursued the Appellant for money paid into the nominated bank account operated by the Appellant's business in respect of an arrangement put in place by the Appellant in his capacity as managing director, senior intermediary, and negotiator between the proposed investor and his client, Michael Walters, describing himself as being a hand holder for transactions.
He represented that the agreement under which this was performed was for him to procure investment in the business, evidenced by verbal communications, letters, emails and messages. A document in the form of a "civil agreement", a term used by the Constable and not further qualified, was not signed by the Appellant's company or Mr Walters, for "all agreements", the term used by the Appellant, were signed with Mega Platinum Asia, a party in Hong Kong.
No explanation is included dealing with the reasons for Mr Walters being dissatisfied, but the Appellant stressed the alleged threats and harassment, which he contemplated reporting to the police, in the face of his attempts to calm Mr Walters and encourage his patience. He also stressed that he went to lengths for which he was not paid in Mr Walter's interests. It is implicit in the responses from the Appellant that Mr Walters has no basis for holding him accountable for the circumstances upon which he wished to recover money paid into the Appellant's company account.
The interview does not include an exculpatory response or denial in respect of the specific allegations upon which the prosecution is brought. The Constable did not put the specific allegations to the Appellant, which is explicable in light of the early stages at which the conversation occurred and the limited material available to the Constable for the purpose of the interview.
If the responses by the Appellant are accepted as reasonable explanations for the matters raised in the interview it would not follow that they provide a version of events that is inconsistent with his guilt.
Constable Lucie Francis made her statement on February 26, 2017. It is Exhibit Two. Michael Walters attended Day Street Police Station about 2:00pm on Saturday May 21, 2016 to report a fraud. Since he had no documents with him, and because of her perception of the complexity of the matter, he was given a template statement to complete at his home, which he forwarded to the Constable on Monday May 23, 2016. She interviewed the Appellant as earlier described on June 21, 2016.

The Appellant's Silence upon Arrest

When given the opportunity to participate in an interview with police investigating these allegations by Detective Senior Constable Dib at Day Street Police Station on May 4, 2017 the Appellant declined. He attended there with the lawyer who represented him in the Local Court proceedings and in this appeal. Before he declined the interview opportunity through his lawyer he said, "This is a civil matter. My lawyers are dealing with the matter. I have lawyers on the board of my company. I run a real estate company just down the road there."
His lawyer left the police station for the charging process, in the course of which the Appellant was delivered into custody and once more cautioned and given the opportunity to provide an explanation including by way of a statement if he wished, which he declined.
He was not obliged to participate in any interview or provide any statement and bears no disadvantage in the assessment of the appeal from his decision to abide by the right all enjoy in our democracy not to submit to questioning by police if that is our wish. No inference adverse to him may be drawn from his decision.

The Appellant's Evidence

The Appellant did not give evidence before the magistrate in the hearing of the charge, though he gave evidence in the course of a voir dire. The evidence on the voir dire was not before the magistrate for the purposes of the substantive hearing and is not before this Court for consideration upon the question whether the Crown has proven guilt.
The Appellant was not obliged to give evidence. He has no burden of proof in these proceedings, though argument was advanced on his behalf that the evidence before the magistrate enlivened a basis upon which he acted upon a claim of right which was sufficient to require the Crown to prove that he did not do so.
No inference adverse to the Appellant is drawn from the fact that he chose not to give evidence in the proceedings.

Character

The Appellant relies upon evidence that he is of good character, without antecedent criminality recorded against him.
This evidence was not challenged by the Crown and thus I ought to accept the fact that he is a person of good character.
Evidence of good character may be taken into account in the Appellant's favour on the question of whether the prosecution has proved guilt beyond reasonable doubt. The fact that the Appellant is a person of good character is relevant to the likelihood of his having committed the offences alleged.
Good character does not provides some kind of defence, but it is a factor to be taken into account in determining whether the Court is satisfied beyond reasonable doubt of the Appellant's guilt. The Court must assess the weight to be given to the Appellant's good character.

Inferences and Circumstantial Evidence

The Court may draw inferences from the direct evidence, describing what was experienced, seen, or heard by them and the exhibits produced.
Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
Care is required when drawing any inference that is adverse to the Accused. Any possible inference available from the direct evidence must be examined carefully to ensure that it is a justifiable inference.
This is relevant to the assessment of basic facts upon which the Crown relies in support of the elements of the offence that it must prove. The appeal must succeed if any of the essential ingredients or elements of the charge are not proven beyond reasonable doubt.
My function extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. It also extends to drawing reasonable inferences or conclusions from the facts I find established.
The Crown relies upon circumstantial evidence in this case, and thus relies upon certain basic facts and from those facts asks the Court to draw a conclusion as to the existence of further facts, in this case elements of the offence.
The Court is asked to reason in a staged approach, first to find certain basic facts established by the evidence. These do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove guilt.
The Court is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks the Court to find based upon the basic facts is that the Appellant is guilty of the offence charged and in consequence therefor to dismiss this appeal.
The strength of the circumstantial evidence depends upon the number and nature of the basic facts relied upon when considered as a whole and not individually or in isolation, and whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
The Court must consider and weigh, as a whole, all the facts found established by the evidence. No particular fact is considered in isolation to determine whether that fact proves guilt, or whether there is any explanation for that particular fact or circumstance which is inconsistent with guilt. The correct approach is first to determine what facts the Court finds established by the evidence - no particular fact to be taken into account needs to be proved beyond reasonable doubt - the Court then considers all of those facts together as a whole and asks whether it can conclude from those facts that the Appellant is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails and the Court must find the Appellant not guilty.
But if the Court finds that such a conclusion is a reasonable one to draw, the Court must go further and determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion for which the Crown contends. If there is any other reasonable conclusion arising from those facts that is inconsistent with guilt, the circumstantial case fails.
This involves a logical and rational process of reasoning, not based upon mere speculation, conjecture or supposition.
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.

The Essential Elements of the Charge

As previously noted, the offence of which the Appellant was found guilty contrary to s 192E(1)(b) Crimes Act 1900 was expressed in the Court Attendance Notice in the following terms: Between the dates 28th August 2015 and 9th October 2015, did dishonestly obtain a financial advantage for the said Leone Ming, to wit $51,200.00, by deception, namely by presenting documentation to sell 50% equity of Perara Pty Ltd and Industrial Process Technologies Pty Ltd to Mega Platinum Group on behalf of Michael Walters..
S 192E(1)(b) provides, (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.
The Crown contends that the financial advantage is the sum of the money paid over by Michael Walters on the three occasions described in the evidence, the first $5,000.00, then another $5,000.00, and two further sums totalling $31,200.00. It does not matter whether the financial advantage alleged was permanent or temporary.
The deception that the prosecution alleges that the accused perpetrated was that by his presentation of documentation to sell 50% equity of Perara Pty Ltd and Industrial Process Technologies Pty Ltd to Mega Platinum Group on behalf of Michael Walters he represented that he would introduce an investor to the Complainant, in the course of which the money paid would be used for the purposes of that endeavour.
The prosecution must prove beyond reasonable doubt that the financial advantage was obtained as a result of that deception and that the Appellant perpetrated that deception intentionally to obtain the financial advantage or acted recklessly in that regard. Here reckless means foreseeing the possibility that as a result of the deception he would obtain a financial advantage and carrying on with the deception notwithstanding that possibility.
The prosecution does not need to prove a particular person was deceived.
The Crown must prove beyond reasonable doubt that the Appellant acted dishonestly in his deceptive conduct. Dishonest in this context means that the Appellant acted dishonestly according to the standards of ordinary people.
The prosecution must prove beyond reasonable doubt that the Appellant acted dishonestly in deceiving Michael Walters, and also that he knew that his conduct was dishonest according to the standards of ordinary people.
In the manner in which the case was conducted on his behalf it is the Appellant's contention that the Crown has not negated that he had a genuine and honest belief at the time that he received the money on each occasion that he had a lawful right to do so, and to use the money as he saw fit, particularly in light of services performed.
The principle is that if the Appellant was acting under such a belief, genuinely and honestly held, then it could not be said that he was dishonest in doing so, regardless of the Complainant's perception.
It matters not whether in law there was no such right, or whether the Appellant mistakenly believed that he had such a right, or whether he had any reasonable grounds for such a belief. If that belief existed at the time of the deceptive behaviour then, as I have said, the state of mind of the accused would not be shown to have been dishonest.
This is a matter that the Crown must negate beyond reasonable doubt.
Upon the 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 principles applicable to circumstantial evidence discussed earlier.

Duplicity or Ambiguity

There are provisions defining certain use of the terms used in s 192E(1)(b) to which I should refer in light of the submissions made on behalf of the Appellant.
The Appellant's solicitor submitted that the charge as framed was bad for duplicity or ambiguity for in truth there were four transmissions of funds, the first of $5,000.00 followed by another of $5,000.00 a significant period of time later, and then later still two further transmissions of $14,000.00 and $27,200.00. It was said that properly structured there ought to have been three charges alleging the obtaining of a financial advantage, the first in respect of the first sum of $5,000.00, the second in respect of the second sum of $5,000.00 and the third in respect of the sum of $41,200.00.
There was no authority offered in support of the argument on the day the matter was presented, but as I understood the proposition it was in terms that although as a matter of general principle a course of conduct involving separate transactions could properly be prosecuted within the one charge alleging the offence, where there is a disconnect between each of the transactions such as to negate any suggested course of conduct on the part of the Appellant, this approach was not appropriate. As I understood the submission, it was to the effect that in those circumstances the prosecution must fail if any one of the transactions could not be shown to meet the elements of the offence, upon the premise that the quantum of the fraud alleged was a matter of essence that the prosecution must prove.
The Crown in response referred to s 192E(3) which provides, (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.
The effect of this provision is that if the prosecution could prove that one or some of the transactions alleged occurred and were caught by the provision creating this offence, the prosecution would not fail but would result in a finding of guilt only in respect of the transactions established.
To this I would add reference to a passage from the judgement of Samuels JA with whom Enderby and Loveday JJ agreed in R v Locchi (1991) 22 NSWLR 309 at [312]. The case was concerned with a charge of supply prohibited drug which was formulated upon a series of episodes of misconduct, each of which was capable of constituting the offence charged, and which the Appellant argued gave rise to latent duplicity or ambiguity, latent because the defects suggested would become evident only after the evidence in the case was complete.
His Honour wrote, "In principle, it is, it seems to me, legitimate to charge, in a single count, one activity, even though that activity may involve more than one act, each of which may amount to an offence. There is ample authority for this proposition. ... Obviously a great deal depends upon the nature of the offence which the Crown seeks to prove. The latent defect is manifested, or made patent, by the evidence, and accordingly depends upon the charge which the material is intended to support."
His Honour distinguished S v The Queen (1998 - 1990) 168 CLR 266 in which the indictment charged the accused with three offences of carnal knowledge, each one on a date unknown within specified periods. The complainant gave evidence of two specific acts but no evidence linking them to any of the specified periods, and alleged that sexual intercourse occurred over a period of two years and every couple of months for a year.
In further written submissions on behalf the Appellant I was taken to further authority dealing with the questions of patent and latent duplicity and ambiguity. These were Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373; Johnson v Millar (1937) 59 CLR 467; Montgomery v Stewart (1967) 116 CLR 220. I read each of these in conjunction with the further written submission from the Appellant.
I find that there is no risk of ambiguity or duplicity in the formulation of the charge. The evidence clearly identifies the three transactions and the funds paid on each of the three occasions. The transactions in which the money was transferred are clearly recorded in the material exhibited, including the Appellant's bank records, as were the interactions between the Appellant and Michael Walters which he asserts led to the transmission of the funds.
I find that the Court Attendance Notice 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.
Thus, upon my understanding of the principles for which the authorities cited stand, and upon the application of s 192E(3) Crimes Act 1900, I did not accept this submission.
The later submissions made no reference to s 192E(3) Crimes Act 1900.
The Crown did not wish to offer further submissions in reply to those of the Appellant, and by email wrote: There will be no further response material from the Crown, I rely on my written submissions and the reference to s 192E (3) in my oral submissions to address the further submissions by the appellant

The Corporate Veil

A submission was also made that the transactions were between corporate entities and not individuals, such as the charge alleges when nominating the Appellant to be acting in breach of the provisions against the complainant Michael Walters, and that consequently it was inappropriate to pierce the corporate veil of either company for the purposes of criminal prosecution, when in truth any remedy if available was by way of a civil action between those corporate entities. In response to this submission the Crown referred to s 192D of the Act which provides, (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. (2) In this Part, "cause" a financial disadvantage means - (a) cause a financial disadvantage to another person, or (b) induce a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary.

Causation

On behalf of the Appellant a further submission was made that the charge must fail since the conduct upon which the prosecution relies as deception did not accompany the transmission of the funds. In response the Crown referred to s 192B(1)(a) which relevantly provides, (1) In this Part, "deception" means any deception, by words or other conduct, as to fact or as to law, including - (a) a deception as to the intentions of the person using the deception or any other person, or (b) .... (2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless.
The Crown referred to the restricted judgement in R v SKL; R v JY; R v XG;L [2019] NSWCCA 43 at [70]: The question will always be: has the Crown proved that the deception was the reason the property was obtained? The element of causation is the relevant element. The trial judge was in error to require, as an additional element of the offence, that the deception operated on the mind of the person deceived. To require the intervening step to be proved is to treat the mode of proof of the usual case as a legal principle which applies to all offences under s 192E(1)(b).
I do not accept the Appellant's submission on this point.

The Determination of the Appeal

I agree with the submissions made by the Crown that this matter has taken a veil of complexity from the extensive array of issues raised in the course of the cross examination of the witnesses called by the prosecution and the endeavour to adduce further evidence in reliance upon s 165 Evidence Act 1995.
I agree that this prosecution succeeds upon the documents exhibited in the courts of the hearing which clearly establish an ongoing course of deception on the part of the Appellant.
The relevant communications begin with Exhibit 17 in which the Complainant communicated his difficulty financial position in his business. In response, in Exhibit 18 the Appellant confirmed that he believed he could procure a joint venture partnership. Exhibit 19 includes communications back and forth with clarification by the Complainant upon requests by the Appellant. 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.
Appellant made immediate use of the $5,000 for personal expenses.
Exhibit 22 is the bank record showing the deposit by the Complainant of the $5,000.
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.
Exhibit 24 is the bank record showing the deposit by the Complainant of this $5,000.
Exhibit 25 is a series of emails in which the Appellant maintained the charade of travel to Hong Kong for the meetings he represented he was to attend.
Exhibit 26 is a letter purported to be from Manoel Banawa representing agreement to a joint venture to the value of $3,000,000 but that they needed an acceptance fee of $30,000, and included false representations that the Appellant had been to Hong Kong to complete due diligence.
The money was paid into the Appellant's account, and used by him for his personal expenses.
Exhibit 32 comprises text messages in which the Appellant suggests that a company FWC is not connected to him, though he was a director of that company, and Exhibit 35 is a text message in which he represents that Leone Ming lives in Shanghai, representing thereby that this is someone other than himself. He communicated with the Complainant through using the name Bruce Francis. The Appellant in fact used both names in particular contexts, but not when dealing with the Complainant.
In Exhibits 33 and 34, emails from the Appellant, he misrepresented that he was overseas when he had not left Australia.
These facts I have brought to account the evidence from the Complainant of his efforts to locate the premises nominated by the Appellant as their place of business: transcript at page 30 on March 21, 2018. I have brought to account the deposit of the funds into the Appellant's account for purposes represented by the Complainant but which were thereafter accessed and used by the Appellant for his purposes unrelated to the arrangements as understood by the Complainant. I have brought to account that the Appellant was known by two names, only one of which he used when dealing with the Complainant, disavowing any connection with the name Ming in a communication with the Complainant to which I referred above.
There is no question regarding the various interactions between the Appellant and the Complainant, the content of the documents that passed between them, the payment of the money amounting to of $51,200 into the Appellant's account, used for purposes contrary to those represented to the Complainant and to the personal benefit of the Appellant.
The cross examination of Michael Walters, the Complainant, carried with it criticism as to credit and reliability., but I find that he presented a witness worthy of credit, willing to concede where it was appropriate to do so, although presenting I would accept with a measure of apparent frustration when he was thwarted in his efforts to give more fulsome answers than the cross examination sought to elicit. Regardless of the perception of I have of the witness, the documents, as the Crown contends, clearly establish the prosecution case.
The Appellant's contentions were advanced in writing and addressed with oral submissions. I have dealt with them in the course of this judgement. In turn these were that the charge was misconceived in charging the course of conduct with regard to the global sum, that the Crown had not shown the conduct to be dishonest, that the Appellant had a claim of right over the fund for reasons that include reward for services he performed, that the Crown had not shown that the Appellant obtained the funds by deception, that the Crown had not shown the Appellant gained the financial advantage in light of the involvement of corporations, and that the Crown had not shown that the representations if proven induced the payment of the funds. Reliance was placed upon the prior good character advanced by the Appellant. I have dealt with each of these in the course of the judgement.
The Appellant also offered criticism of the Crown in failing to have the proposed witness Banawa available, but I do not accept this in light of the lack of co-operation demonstrated by this person when efforts were undertaken to locate him and have his co-operation early in the investigation. The Appellant's case included the association with this person, with whom he was in contact, and from whom he purported to have statements sent to Australia. I am not persuaded that the prosecution could have done more than they did to have this person available to give evidence. At the same time, it appears that the witness was not averse to giving evidence on behalf of the Appellant, other than by travelling to Australia to do so.

Decision and Orders

I am satisfied beyond reasonable doubt that between 28th 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.
The Appeal from conviction is dismissed.

Endnote

This account is in the name of Commercial Pacific Alliance Pty Ltd held at the Bendigo Bank. 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: 02 June 2021

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