R v Medley (No 1)

Representation: For the Appellant:
Mr Barber of Counsel
For the Crown:
Mr Fennel of Counsel, instructed by Ms Sharma, Solicitor

File Number(s): 2020/00289662

JUDGMENT

Conviction appeal of Louise Angela Medley

1. Ms Medley appeals her convictions for two offences contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW).

2. Sequence one alleges that between 16 December 2016 and 17 August 2017 she, by deception, dishonestly obtained a financial advantage.

3. Sequence two alleges that between 18 August 2017 and 13 March 2018 she, by deception, dishonestly obtained a financial advantage.

4. During these two periods, Mrs Medley operated a debt collection business. A prerequisite for operating such a business was the issuance of a Commercial Agents and Private Inquiry Agents license (‘CAPI’) from NSW Police. The Applicant’s business did not have a CAPI license throughout the periods mentioned above, yet continued to operate.

5. The prosecution case was that in doing debt collection work and holding out to IPF, one of the businesses’ clients, that they were licensed, Ms Medley dishonestly obtained a benefit by deception. The money involved, in the form of commissions received, were amounts of $118,420 (Sequence 1) and $100,286 (Sequence 2).

6. The appellant’s case was that she was not deceptive at any point in the relevant periods, and any representations by her business to IPF that her business was in possession of the required CAPI licence were made without her knowledge. Accordingly, she did not act dishonestly in receiving these commissions.

7. As there are two offences alleged, it is important to consider each sequence separately. In doing so, I must apply the fundamental principles first to the onus of proof always being on the prosecution, and second that each element of the separate sequences must be proved beyond a reasonable doubt. Ms Medley is presumed to be innocent.

8. The prosecution of the appellant did not commence until 26 August 2020, almost two years after the appellant was interviewed by ASIC. The case was listed for hearing on 17 June 2021 and 18 October 2021 but did not proceed.

9. The hearing commenced before his Honour Mr Covington LCM on 10 May 2022, and continued on 21 October 2022, 5 May 2023 and 16 October 2023.

10. On 16 October 2023 the appellant was found guilty on both sequences.

Conviction appeals from the Local to the District Court

11. Conviction appeals from the Local Court to the District Court are made pursuant to Pt 3 Div 1 of the Crimes (Appeal and Review) Act 2001 (NSW) (‘Appeal and Review Act’). This appeal is brought pursuant to s 18 of the Appeal and Review Act, which provides that the appeal is to be conducted as a rehearing on the basis of the evidence in the original Local Court proceedings.

12. There have been a number of recent intermediate decisions on the approach to be taken by the Court hearing the appeal from the Local Court: Lunney v DPP [2021] NSWCA 186 and McNab v DPP (NSW) (2021) 106 NSWLR 430 as were recently helpfully summarised by Abadee DCJ in R v Wong [2022] NSWDC 257 at [5]-[9].

13. Those cases affirm that this Court’s jurisdiction to intervene and set aside a conviction is enlivened upon the demonstration of error, whether the error is to be found in the fact-finding exercise, the identification of the law, the application of the law, or in exercising a discretionary power*.* Further, a judge of this Court is not precluded from referring to the reasons for decision of the Local Court Magistrate and to the findings by the Magistrate as to the credibility of evidence, recognising their natural advantage in having seen and heard the witnesses given in the Court below. However, particularly in circumstances of cases where one person’s word is pitched against another, that task may involve considering whether disputed evidence is consistent with incontrovertible facts, undisputed facts and other relevant evidence.

14. The appeal is not considered to be a de novo rehearing. Error is established by the manner in which the appellant grounds their appeal and there is no requirement that the Judge on appeal in this Court undertake a freestanding review of all the evidence in the absence of guidance and submissions from the parties. The appellate court is not obliged to review the whole of the record of the proceedings for an independent assessment of guilt (Lunney at [34]). Relevantly, the extent to which a review of the record is required is qualified and shaped by the matters put in issue (Lunney at [4], [43]-[44]).

15. The approach of a judge in this Court is to form his or her own judgment of the facts (recognising the advantages of the Magistrate). A judge may consider but is not bound by the Magistrate’s reasons, including the resolution of issues of witness credibility and is not required to give weight to the Magistrate’s advantage if it considers that the Magistrate misused their advantage as the trial judge seeing and hearing the witnesses.

16. Findings of fact based on the credibility of a witness are susceptible to being set aside if incontrovertible facts or uncontested testimony demonstrate the finding was erroneous or if factual findings are glaringly improbable or contrary to compelling inferences in the case.

17. The duty of the appellate court is to decide the case, the facts as well as the law, for itself. If this Court is not satisfied beyond reasonable doubt of the appellant’s guilt then error will be taken to have occurred. The decision of the Local Court will not be overturned unless a judge of the Court is satisfied that it was some respect wrong (McNab at [90]).

18. This judgment is limited to the question of whether the convictions should be quashed. The appellant’s argument is that the evidence in support of each offence is insufficient to demonstrate the appellant’s guilt beyond reasonable doubt. [1]

19. In the event that I dismiss this aspect of the appeal, it will be necessary to consider whether the charges should be dismissed anyway, pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

20. If I am not persuaded to take that course, I will need to consider the sentence appeal.

Background evidence

21. At the time of the alleged offences, the appellant operated a debt collection business and was required to hold a CAPI licence.

22. The scheme required the actual business to hold a master license and employees or operatives to hold an operator license. [2] The license was to be issued by NSW Police.

23. From 2008, Ms Medley operated a debt collection business called Black Collections Services Pty Ltd (‘BCS’).

24. The appellant became the sole Director of BCS on 1 September 2008. On 4 October 2008, NSW Police issued BCS a Master CAPI licence. The licence was for five years until 4 October 2013. [AB 342]

25. In about 2012, the appellant commenced a relationship with Stuart Crabb.

26. On 5 December 2013, Mr Crabb became the company secretary of BCS. By then the Master CAPI licence had expired.

27. From 12 March 2014, BCS tried to obtain a further CAPI licence. On each occasion the appellant signed the relevant application. The first application was rejected by NSW Police on 19 March 2014. Accompanying that rejection was advice that the appellant’s business was not authorised to undertake debt collecting until the licence was granted. [AB 344]

28. A second application for the licence was made on 5 August 2014, however NSW Police rejected this application with the same advice. [AB 345]

29. Despite not holding a CAPI licence, on 15 December 2015 the appellant signed a Mercantile Agent Agreement with IPF for the appellant’s business to provide debt recovery services. [AB 361-376] IPF was also known as Credit24 and was in the business of providing unsecured or ‘pay day’ loans.

30. Provision 3.1(d) of the Agreement stipulated that the appellant’s business maintain “any licence(s) or registrations required within each jurisdiction in which Recovery Services under this Agreement will be performed.” [AB 364] In cross-examination, the appellant accepted that she knew a CAPI license was required under the agreement. [AB 211]

31. On 2 September 2016, BCS was placed into liquidation.

32. On 5 September 2016, an external administrator, Andrew Scott, was appointed. The liquidation of BCS occurred because of a failure on the part of BCS to make a final instalment payment of unpaid tax to the Australian Tax Office. The appellant had been in a position to pay the final instalment but had not done so on Stuart Crabb’s advice.

33. After BCS was liquidated, the appellant and Mr Crabb entered a licence agreement with the liquidator from 5 September 2016 until 7 October 2016. The debt collection business continued to operate under this license. That the business did not hold a CAPI licence seems to have been ignored. [3]

34. On 30 September 2016, the appellant and Mr Crabb became joint owners of a further incorporated entity Black Collections Pty Ltd (‘BC’). They each held 50% ownership. Crabb became the company secretary of BC.

35. On 10 October 2016, BCS (in liquidation) was sold to BC.

Overview of prosecution evidence regarding the alleged Sequence 1 offence

36. At 10:19AM on 16 December 2016, [4] Christine Scott, a staff member of IPF, forwarded an email to the appellant’s business email, [5] seeking information in the following terms:

Subject: Debt Collection License

Hi Louise, I’m sure this is all okay, but I have just been asked if all our partners have Debt Collection licenses and my response was “I certainly hope so (mild panic)”

Can you please able to confirm the details?

Thanking you

Christine Scott

IPF Digital Australia Pty LTD/ Credit 24 Australia

37. At 10:58AM a reply was sent from the appellant’s email address:

Subject: Re: Debt Collection License

Hi Christine,

I hope you have settled in well and your week had gone smoothly!

Please find below our licence number;

licence number; 409812453

let’s touch base early next week - hopefully we can find time to catch up.

Have a great weekend.

Kind regards

Louise Ryan

Managing Director

38. At 11:42 AM Ms Scott responded:

Thank you very much.

How does Tuesday sound?

39. The number provided in this email exchange was the licence number for the expired CAPI licence issued in 2008. At this time BC did not have a CAPI license.

40. Evidence in the Local Court hearing [6] was that in the period between the sending of the email on 16 December 2016 and 17 August 2017, [7] BC recovered outstanding debts for IPF and as a result received $118,420.77 in commissions. [8]

41. The prosecution case is that the appellant sent the 16 December 2016 email that falsely communicated that BC held a CAPI licence. This was the alleged deception relied upon regarding sequence 1. Thereafter, the prosecution case is that the appellant dishonestly obtained the financial advantage, namely the commissions payable for the recovery of outstanding loans owing to IPF.

42. The appellant disputes sending the email to Ms Scott. During the Local Court proceedings, Stuart Crabb gave evidence that he had sent it without telling the appellant. His evidence was that he had unfettered access to the appellant’s emails and effectively ran the day-to-day operations of the business. His evidence was that he would reply to emails as if he was the appellant.

43. On 14 February 2017, ASIC wrote a letter to the appellant and Mr Crabb, as co-owners, advising that ASIC was aware BC may not hold the appropriate licence. [AB330] On 13 March 2017, a solicitor named Mr Horne replied on behalf of the appellant and Mr Crabb, confirming BC did not hold a CAPI licence and advising that an application had been made for one. This was incorrect, as no further application for a licence had been made since 2014.

Overview of evidence regarding the alleged Sequence 2 offence

44. On 18 August 2017, the appellant signed a second Mercantile Agent Agreement with IPF on behalf of BC. [AB 390-404] Once again, it was warranted that BC would maintain any license required. [9] The Crown submitted that this was, once again, deceptive, as the appellant knew BC did not have a CAPI license.

45. On 17 November 2017, Mr Crabb resigned as a director and company secretary of BC. In his subsequent compulsory ASIC interview Mr Crabb said he had resigned after realising the business had no CAPI license. In the three months before he resigned, he was not involved in the running of the business because he and the appellant had had a massive falling out. In his Local Court evidence, Mr Crabb retracted this and asserted that even after his resignation he had remained involved in the day to day running of the business. (T34)

46. Thereafter, email communication occurred between the appellant’s email address and Mr Braganza, another staff member at IPF. I note the second Court Attendance Notice incorrectly identified Ms Scott as the staff member. No issue was taken in the hearing regarding this error as it was no more than a particular of the charge.

47. In January and February 2018, there were emails from Mr Braganza to the appellant’s email address regarding unsatisfactory conduct by a staff member of BC. Mr Braganza’s evidence was that he regarded the appellant as the main point of contact for these communications. Responses to those communications came from the appellant’s email or from Ms Dimyana Faris’ email address.

48. On 7 March 2018 at 12:47PM, Mr Braganza made a request in an email to the appellant’s email address, for a copy of BC’s Master CAPI license. [AB 416]

49. On that day, at 2:05PM, a response was sent from the appellant’s email address:

Hi Sheldon,

It was lovely catching up with you today.

……..

Master Capi licence – 409812456

Look forward to seeing you next week.

Let me know if you require any further information.

Louise Ryan

Managing Director [AB 417]

50. On 8 March 2018 at 11:57 AM a further email from the appellant’s email address was sent to Mr Braganza:

Hi Sheldon,

As requested please refer attached.

Also would you please follow-up commission owed to Black and arrange for a transfer today?

Thanking you in advance.

Let me know if next Thursday suits you for meeting in office and lunch.

I have a very busy week and would like to finalise all my meetings.

Chat soon,

Louise Ryan

Managing Director [AB419]

51. The PDF document attached to the email was a false master CAPI licence, apparently based on the earlier expired licence, with the date for expiry changed from 4 October 2013 to 4 October 2018. [AB 420]

52. In the period between 18 August 2017 and about 13 March 2018, BC worked collecting outstanding debts for IPF and received total commissions of $100,286.15. [10]

53. The prosecution case is that throughout this period the appellant deceptively held out that her business had a CAPI licence and dishonestly received the commission payments for debt collection work done on behalf of IPF.

54. The appellant’s case is that at no point did she behave deceptively towards IPF and any false representations made to IPF that BC held the CAPI license must have been made by Stuart Crabb. She was not dishonest in requiring the commissions be paid.

Other dates raised in the evidence

55. On 13 April 2018, the appellant made a further application for a Corporate Master CAPI licence for BC. On 19 April 2018, NSW Police advised that the application could not be processed. [AB 348-350] A further application, lodged 24 May 2018, was also rejected. [AB 351-356]

56. On 10 September 2018, Mr Crabb had an interview with ASIC investigators. In that interview he said he had played an extremely limited role in the operations of BC and did not have access to the appellant’s emails, unless she had sent them to him. This interview was tendered in the Local Court proceedings.

57. On 24 September 2018, the appellant also participated in an interview with ASIC investigators. That interview was not part of the evidence in the Local Court hearing.

Evidence in the Local Court and the further evidence in the District Court

Rebekah Bush

58. Rebekah Bush’s evidence was that she worked as a debt collector for BC between November 2016 and April 2018, a significant period. After a trial period she had worked five days per week.

59. The appellant was the face of the company and recruited new clients (AB30). The appellant was very involved in running the business “predominantly every day” (AB 27) and “always available” (AB 23). She agreed that on occasions the appellant would be out of the office networking and attending lunches (AB 30).

60. All staff had individual email addresses. All staff also had access to the generic business email address (info@XX) but not more generally. The office space was open plan.

61. Ms Bush took direction from Ms Faris, the accounts manager and from the appellant. [AB 25] Later, after Ms Faris left the business, she became the main account manager, aside from the appellant. Ms Bush had no part in licensing issues and was unaware who had this role (AB 27).

62. Mail would be placed on the appellant’s desk unopened. [AB 28]

63. Stuart Crabb was the appellant’s partner and a director of the business. He would occasionally attend the business premises. [AB 28] Over 18 months she saw him 20-30 times. [AB 29] She did not like Crabb. [AB 31]. He only attended on rare occasions, not daily or even most days. [AB 33]

64. In cross-examination it was put that Crabb had his own desk in the corner of the office and “came in often and used that…” Ms Bush did not accept that he came in often but did agree he had his own desk. [AB 34] It was never put to Ms Bush that Crabb used the appellant’s desk.

65. Crabb continued to attend the office up until Ms Bush ceased to work for the business. [AB 29]

Kris Ipiris

66. Kris Ipirus gave evidence in the District Court by leave. There was no explanation why Mr Ipiris was not called in the Local Court. I considered it was in the interests of justice that leave be given for his evidence, because it went to an issue in the proceedings – the extent that Crabb was involved in running the business and his capacity to send emails as if from the appellant.

67. Mr Ipiris was a friend of Stuart Crabb and through that contact had obtained a fulltime job in December 2016 with BC. His work was limited to chasing up unpaid debts by phone calls. He described how Crabb ran the office and would sit at the appellant’s desk. Crabb was responsible for compliance. Crabb had access to the appellant’s emails and told him he would reply to them. Crabb would make appointments for the appellant. Crabb came to work every day and remained working until late 2018 or early 2019. He would brag about being the boss.

68. Conversely, the appellant was always out. When she was in the office, he would discuss work with her and follow her directions.

69. Mr Ipiris worked with Rebekah Bush. Ms Bush and Mr Crabb never got along and would argue about everything. Ms Bush did not want to listen to Crabb.

70. Mr Ipiris was aware the business was relying on the CAPI of another person, Mr Toweel, in the absence of having their own. They were paying $2,000 per week to be covered by his license (T14 8/4/25).

71. Mr Ipiris would see the appellant and Crabb outside work. Crabb was very abusive. The appellant was very anxious. Their relationship was ‘toxic’.

72. Mr Ipiris was not involved in the appellant’s activities. Although Crab had his own desk, he regularly sat at the appellant’s desk because he had access to her computer.

73. During cross-examination, Mr Ipiris said the appellant would come in the morning, go out for lunch, and return in the afternoon. When he began with BC, the appellant was out a lot securing new clients.

74. I did not find Mr Ipiris a reliable witness. His evidence of the respective involvement of the appellant and Mr Crabb in the running of the business was at odds with the evidence of Ms Bush and Ms Scott. Mr Ipiris’ evidence about how long Crabb remained working in the business was in conflict with the other evidence, including the evidence of Mr Crabb. His evidence as to the amount of money being paid to rely upon the other CAPI license was different in his examination-in-chief ($1000) to his cross-examination ($2000). The cross-examination amount was also at odds with the evidence of the appellant.

Christine Scott

75. Christine Scott gave evidence in the Local Court that she commenced working with IPF in December 2016. She remained with the company until about April 2017. The business operated from Alexandria. BC was one of three debt collecting companies IPF used. BC received a monthly commission, dependent upon the amount of outstanding debt recovered.

76. Ms Scott gave evidence she had telephone contact with the appellant and other staff. She would usually speak with the appellant or Dimyana Faris.

77. Ms Scott said that in December 2016 she went to BC’s office to meet with the appellant. They then went out to lunch to the Woollahra Hotel. This occurred after the email exchange and before Christmas 2016.

78. During the lunch, Ms Scott said to the appellant: “thanks for sending that through” and the appellant responded: “no worries”. This was the only time Ms Scott met the appellant in person. She could not recall meeting Mr Crabb, either in person or over the telephone, and did not recall dealing with any male in her communication with BC. At no point was she advised that BC did not hold a CAPI license.

79. The lunch had been a “meet and greet.” During the lunch Ms Scott and the appellant shared two bottles of white wine. Ms Scott did not take notes. She thanked the appellant during the lunch for her email because the appellant had responded so promptly. The appellant accepted that she and Ms Scott had gone out for lunch but denied participating in the email exchange and denied there was any conversation about the emails during the lunch.

80. Although Ms Scott was not asked for her recollection of these matters for six years, and she and the appellant drank a substantial amount of alcohol during their lunch, I consider her evidence was straightforward and capable of acceptance.

Sheldon Braganza

81. Sheldon Braganza started with IPF in July 2017 as the manager of credit and collections, at a time after Ms Scott had departed. [AB 50] He visited BC’s offices and met with the appellant. He visited BC’s offices probably once every few months. [AB 55] He attended a few times. The appellant visited IPF’s offices “not many times”. [AB 59] He spoke with the appellant about compliance issues. [AB 55] He would speak with the appellant on the phone. [AB 60]

82. Mr Braganza vaguely recalled speaking to the appellant about licenses. [AB 54] This was at a time close to when the contract was terminated. He could not recall engaging with Mr Crabb but did recall Ms Bush. [AB 61]

Stuart Crabb

83. Stuart Crabb’s evidence was that he helped run BCS (the earlier entity) and was company secretary. He had negotiated with the ATO regarding BCS’ outstanding tax debt. After BCS was liquidated, he and the appellant became Directors of BC.

84. During the relevant period, the appellant was occupied caring for her elderly father and raising her three sons. She was away a lot. (T78-80 on 21/10/22) Mr Crabb said he filled out the various CAPI applications from 2014 and just had the appellant sign them.

85. Mr Crabb’s evidence was that the appellant was rarely in the office and on numerous occasions he would answer her emails, as if they were from her. (T90 on 21/10/22) He had unrestricted access to her computer, as did everyone else.

86. Regarding the 2016 email, relied upon by the prosecution in the sequence 1 offence, Mr Crabb insisted (under a s 128 certificate) that he had sent it. The appellant could not have done so, because it was sent at 10:58AM, and every week on that day and at that time the appellant had a hair dressing appointment. (T11 on 5/5/23)

87. As for the two March 2018 emails, sent to Sheldon Braganza (Ex 5, tab 11), Mr Crabb was uncertain if he was still working for BC (T14 on 5/5/23), however the email sent on the following day and the altered, false CAPI certificate were probably sent by him. (T19 on 5/5/23)

88. On my assessment, Crabb is an unreliable and dishonest witness. [11] His evidence in the Local Court was in total conflict with his ASIC examination, where he had asserted on oath that he had no access to the appellant’s emails [AB 585] and played a minimal part in the operations of BC. He told ASIC he had entirely ceased his involvement three months before he resigned in November 2017. [AB 578] If this was true, he could have played no part in the conduct relevant to sequence 2. I do not know if his ASIC account was truthful or an attempt by him to minimise his own involvement in operating BC.

89. Mr Crabb’s Local Court evidence was that the conflicting account he had given to ASIC had been untrue because he had been drug affected, and sleep deprived. I do not accept this. On my assessment this evidence was deliberately false. The ASIC interview had lasted over 80 minutes. Crabb answered all the questions coherently and at times at length and in detail. [12] At no point is there a hint that he was drug affected or fatigued from being up all night. He never mentioned such matters during the interview. He told the interviewers he was anxious to complete the interview so that he could keep a further appointment that morning.

90. On my assessment, his explanation for his earlier inconsistent account to ASIC was contrived and designed to assist the appellant to defeat the prosecution case.

91. I do not accept Crabb’s evidence. He is thoroughly unreliable. I have put his evidence to one side.

The appellant

92. The appellant gave evidence in the Local Court and was cross examined. In doing so, she did not take on an onus to prove her innocence.

93. I must apply the principles set out in Liberato v The Queen (1985) 159 CLR 507. If I believe her evidence, I must acquit. If I consider it to be reasonably possible, I must acquit. If I do not accept her evidence, I must put it to one side and return to an assessment of the prosecution evidence, in order to determine if one or more of the alleged offences has been established beyond a reasonable doubt.

94. It is not in dispute that the appellant is a person of good character. This factor is relevant because a person of good character may be considered to be unlikely to behave in the manner alleged and be less likely to lie and give a false account. Good character however is not a shield, as even people of good character commit offences. Good character is one factor that must be considered but it is not determinative.

95. The appellant said she was the Managing Director of BC. Her three sons were 26, 24 and 20 years old as at 5/5/23. [AB 183] Crabb became involved in her first business BSC. He took on a back of house administrative role and used her office as office space. He negotiated a repayment plan with the ATO regarding unpaid tax. [184] She thought this had been handled properly up until her business was put into liquidation. [AB 185]

96. Crabb was responsible for ‘compliance’ during each of the relevant periods. She was always out seeking new clients and managing existing ones. (T72 on 5/5/23) She accepted Crabb’s assurances that he had solved the absence of a CAPI license problem by paying money to “another guy” who had one. (T70 on 5/5/23) [13] Eventually Crabb had resigned as a director to remove an impediment to the business getting a CAPI license, as he had a criminal record. He remained working at her business after that. [AB 187] She was not in the office a lot and would be out trying to obtain new customers. [AB 187]

97. Regarding the 2016 email exchange with Ms Scott, the appellant’s evidence was that she had not read Ms Scott’s 10:19 AM email and “100% didn’t reply”. [AB 189] Dimyana Faris made all her appointments. [14] The lunch she had with Ms Scott at Bistro Moncur did not involve any discussion of her prompt email reply, contrary to the evidence of Ms Scott. [AB 190]

98. The appellant’s evidence was that any member of staff could access her emails, and her computer was always left on. [AB 190]

99. Similarly, the appellant could not recall seeing the 7 March 2018 email from Braganza [AB 191] and had no recollection of ever replying to it. Someone in her office would have replied on her behalf. She had no part in sending the email attaching the fake CAPI certificate. [AB 192-3, 204] Her staff routinely replied to clients, pretending they were her. [AB 205]

100. The appellant insisted that whilst she knew the business needed a CAPI license, she believed they were covered because “we were paying $1,000 per week to operate under their CAPI license …. I was told by our lawyer and my staff, if I paid someone $1,000 per week, we could operate under their CAPI license until we got our own.” [AB 199]

101. The appellant accepted she was a director and co-owner in 2016 and the sole beneficial owner and director in 2018. NSW Police were never told of the arrangement to pay someone else $1000 per week to use that person’s CAPI license. [AB 201] I note that such an arrangement, if it existed, was not consistent with the requirements for a CAPI license. [15]

102. I do not accept the appellant’s evidence that she had a genuine belief that BC was entitled to operate under another person’s CAPI license. Both the 2016 and the 2018 emails referred to the 2008 CAPI license details and not some other CAPI license, held by another person. The altered CAPI license sent to Braganaza in March 2018 was based on the 2008 licence and not some other licence held by another individual or entity. If there was a genuine basis, either on the part of the appellant or Mr Crabb, for believing that the business was operating lawfully under another person’s license, it can be expected that reference would have been made to it in each of the above emails and the Deeds of Agreement with IPF that were signed by the appellant. This did not happen.

103. I do not accept that this evidence might reasonably be true. No evidence about this was adduced from the appellant’s lawyer, the nominated source of the advice on this subject. No evidence of any such payments was provided, despite such payments, if made on a bona fide basis, amounting to a clear business expense and, on the appellant’s account, something that must have persisted for an extended period, given the businesses were not licenced since 2014.

104. The appellant also accepted that she knew of the need for a CAPI license and was aware from 2014 that her debt collection businesses did not have one.

105. When asked about a letter from ASIC to BC on 14/2/2017 (Ex 2 Tab 10) that clearly suggested the business was operating without a license, the appellant observed that the correspondence was also addressed to Crabb and “he would have taken care of that.” (T7 on 5/5/23) The appellant’s position was that she “did not have a clue”, and that Crabb or her solicitor took care of such matters. She just signed what was put in front of her. (T7 on 5/5/23)

106. I do not accept these parts of the appellant’s evidence. I do not consider that they might reasonably be true. Crabb was the person who, on the appellant’s account, was responsible for BCS being liquidated in 2016. [16] BCS had been a significant business, run by the appellant from 2008 until 2016. It was the source of her income. She was a single mother with three dependent sons. Evidence of other witnesses was that she was heavily involved on a daily basis in running the business. It is inconceivable that she would rely upon a person as unreliable and incompetent as Mr Crabb to engage with others as if he was her and to actively run the business. It is also at odds with the evidence of Ms Bush, whose evidence was that Crabb was hardly ever present, plus the evidence of Ms Scott and, to a lesser extent, Mr Braganza, who both described the appellant as the main contact person at BC. It is also inconsistent with Crabb’s disavowed account to ASIC.

107. I do not accept that Crabb or any other staff member impersonated the appellant and sent the 2016 and 2018 emails. The emails were sent to and replied from her personal email account. The emails emanating from her contained no hint that someone else had written them. They included statements such as, in 2016, to Ms Scott: “I hope you have settled in well and your week had gone smoothly!” and expressed a desire to meet up for lunch, something that happened very shortly afterwards.

108. Similar features appear in the two 2018 emails to Braganza:

109. “It was lovely catching up with you today”; and

110. “Let me know if next Thursday suits you for meeting in office and lunch. I have a very busy week and would like to finalise all my meetings.”

111. Although I was limited to only reading the appellant’s evidence, she appears to have been a difficult and argumentative witness.

112. As pointed out by the appellant, from 2016 until late 2017, Crabb was a co-owner of BC. [AB 211] Given this, it makes no sense why he would seek to impersonate the appellant in email communications.

113. To summarise, I do not accept the appellant’s evidence regarding legitimate arrangements having been made to pay someone else to use their CAPI license, or that she was unaware that BC was operating without a license, or that she was so hands off that she had no idea about ‘compliance’ issues, or that Crabb played a large role in the administration of BC. I do not accept that someone else responded on her behalf to the Scott email in 2016 and the Braganza March 2018 email, or that she did not send the fabricated CAPI license to IPF in March 2018. I do not consider that these matters are reasonably possible.

114. For these reasons I have put the appellant’s evidence to one side.

Decision

113. The offence provision is relevantly in the following terms:

192E Fraud

A person who, by any deception, dishonestly-

(b) obtains any financial advantage

is guilty of the offence of fraud.

114. The prosecution drew the Court’s attention to s 4B of the Crimes Act 1900 (NSW), where ‘dishonesty’ is defined to mean:

…dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

115. Attention was also drawn to s 192B of the same Act where ‘deception’ is defined to mean:

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) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

116. I refer to the discussion had in Bazouni v R [2021] NSWCCA 856 per Bell P at [67]-[83], particularly at [77] and [80]:

To expand on that: the mental element (broadly defined) necessary for proof of dishonesty has two components. The first is proof beyond reasonable doubt that ordinary persons applying their own standards would regard the alleged acts of an accused person in their context as dishonest. The second is proof beyond reasonable doubt that the accused knew that ordinary persons would make that assessment.

…

It suffices to say that, with regard to offences of fraud committed against the law of New South Wales, the accused must be proven to have possessed knowledge about the negative normative judgment of others as to the dishonesty of his or her conduct at the time he or she committed the physical elements of the offence.

117. I also refer to paragraph [81]:

In contrast, as can be seen from s 192B of the Crimes Act extracted above, an accused person can commit the offence “by deception” either intentionally or recklessly. In the criminal law of New South Wales, except in the context of murder, the latter concept can be understood as meaning with foresight of a (real) possibility about a state of affairs or a consequence.

118. Regarding sequence 1, I conclude beyond reasonable doubt that the appellant sent the 16/12/16 email to Ms Scott, falsely and deliberately misrepresenting that BC held a CAPI license. This act constituted the deception relied upon by the prosecution. The appellant knew that she had not held a CAPI licence since 2014. She had been repeatedly informed by NSW Police that absent such a license her business could not engage in debt collecting.

119. I find beyond reasonable doubt that the appellant, continuing to rely on the deception that the business did hold the licence, dishonestly received commission payments, in circumstances where she knew her business was not lawfully permitted to carry out the work for IPF, and in conflict with the Deed of Agreement earlier entered into by the appellant with IPF. Her conduct in receiving the commissions without a licence was dishonest according to the standards of ordinary people, and she knew this.

120. I find sequence 1 to be established beyond reasonable doubt.

121. Regarding sequence 2, I find that the appellant knew as at 18 August 2017, when she signed the second deed of agreement with IPF, that her business BC still had no CAPI license. Warranting that BC did hold all necessary licences was a deliberate deception on the appellant’s part.

122. Thereafter, by reason of this deception, the appellant continued to dishonestly receive commission payments from IPF. The appellant’s deception continued in March 2018 when the further emails were sent by her to IPF falsely representing that BC held a valid CAPI license. Her conduct in receiving the commissions in these circumstances was dishonest in accordance with the standards of ordinary people, and she knew this.

123. I find sequence 2 to be established beyond reasonable doubt.

The application pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990

124. The appellant, upon the conclusion reached by the learned Magistrate that the offences had been established, made application that the charges be dismissed pursuant to s 32 of the M**ental H**ealth (Forensic P**rovisions) A**ct 1990 on the basis that she accept a treatment plan as detailed at page 11 of a report prepared by Mr Chafic Awit, Psychologist, dated 4 April 2025.

125. The same submission is made in these proceedings.

126. The relevant part of section 32 for consideration is as follows:

32 Persons suffering from mental illness or condition or cognitive impairment

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i) cognitively impaired, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person, and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

the Magistrate may take the action set out in subsection (2) or (3).

(2) The Magistrate may do any one or more of the following:

(a) adjourn the proceedings,

(b) grant the defendant bail in accordance with the Bail Act 2013,

(c) make any other order that the Magistrate considers appropriate.

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate:

(i) for assessment or treatment (or both) of the defendant’s mental condition or cognitive impairment, or

(ii) to enable the provision of support in relation to the defendant’s cognitive impairment, or

(c) unconditionally.

127. This legislation was in effect until 23 March 2021. It is common ground that s 32 has application to this matter. I note that even if it did not, the equivalent provision, s 14 of the current Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is in very similar terms.

128. Section 32 requires the court, either at the commencement or at any time during the course of the proceedings to reach a conclusion, consistent with s 32(1)(a) that the defendant is (or was at the time), suffering from a mental illness or suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, as defined.

129. The appellant relied upon the report of Mr Awit, psychologist, dated 10 November 2023 that was before the Local Court and was also granted leave to rely on a further updated report from Mr Awit dated 4 April 2025, together with a report of another psychologist Mr Watson-Munro dated 10 November 2023.

130. Mr Watson Munro briefly saw the appellant in 2019. He reviewed her for the purposes of these proceedings in 2023 and concluded that she suffered from mental health impairments: Depressive Disorder and Anxiety Disorder (see AB 728-729). He also adopted the opinion of Mr Awit and the proposed treatment plan set out in Mr Awit’s first report.

131. In both of his reports, Mr Awit expressed the opinion that the appellant, at the time of the offending, suffered from a Generalised Anxiety Disorder, a panic disorder and a Major Depressive Disorder. In his recent report dated 4 April 2025, he expressed the opinion that the appellant continued to suffer a Generalised Anxiety Disorder, a panic disorder and now a Persistent Depressive Disorder. At page 9 of his original report (AB 712) Mr Awit expressed the opinion that the appellant’s mental conditions were operable at the time of the offending and were ongoing. He said the following at [19]-[24]:

In relation to the offences; it is the professional opinion of the writer that there are reasonable grounds to believe that Ms. Medley's Psychological conditions (Generalized Anxiety Disorder; Panic Disorder; and Major Depressive Disorder) meet the requirements for the purpose of Section 14 application under Mental Health and Cognitive Impairment Forensics Provisions Act (NSW) 2020. This Act outlines a number of options in the case where the defendant appears to the court to be;

i) Mentally Impaired or

ii) Cognitively impaired.

At the time of the offences Ms. Medley's conditions; i) led to a mental impairment as defined under Section 4 of the act, as her mental health impairment;

A) has caused a temporary thought and mood volition, and

B) the disturbance would be regarded as significant for clinical diagnostic purposes, and

C) the disturbance impaired the emotional well being, and judgement of Ms. Medley

Ms. Medley's condition arose out of;

A) An Anxiety Disorder (Generalized Anxiety Disorder and Panic Disorder)

B) an Affective Disorder (Major Depressive Disorder)

Ms. Medley's decision-making ability had been impacted by this mental health impairment; the conditions are diagnosable under the DSM-V, and the conditions can be treated within a mental health facility, but she is not a mentally ill person within the meaning of the Mental Health Act 2007 (NSW) s.14.

After reviewing Mr. Medley's reported history, and the statement of Facts, it is the professional opinion of the writer that Ms. Medley's decision-making ability in relation to the offences, had been somewhat impacted by her mental health impairment. Her conditions are diagnosable under the DSM-V, and her conditions can be treated within a mental health facility.

It is the opinion of the writer that Ms. Medley developed Generalized Anxiety Disorder and Major Depressive Disorder in the lead up to her marital breakdown in 2008. She had been the ongoing victim of emotional/verbal abuse at the hands of her husband at the time, and he had squandered a significant portion of their savings. She had commenced taking antidepressants at this stage after being diagnosed with Anxiety and Depression. Over the years Ms. Medley has taken various antidepressants, and did undergo some Psychological intervention, however this was not long lasting. Ms. Medley had three (3) children she needed to provide for and did her best to continue the lifestyle her children had been living prior to the breakdown of her marriage. It was already hard enough that she had to take her children out of their private schools and place them into Public Schools. This was a significant disruption to their lives. She had to work and had to carve a future for her family and that is what she did. Ms. Medley successfully grew her business over a five (5) year period, despite her underlying conditions. However, by 2012 she had entered a new relationship (Mr. Stuart Crabb), one that would consume her for a number of years. This relationship was not condoned by her children and many of her friends. Over the years, there was growing tensions between her partner and her children and her father's Dementia was worsening. Ms. Medley had already lost her mother in 2002, and she had been very concerned with her father's health. During this period, Ms. Medley had brought her partner Mr. Crabb into the business and had delegated the administration side of the business to him whilst she concentrated on being the face of the business. This was a form of respite for her, so she could tackle other issues in her life. Ms. Medley advised that during this period she has experienced an exacerbation of her underlying psychological condition and commenced experiencing Panic Attacks. This continued over the years whilst her relationship was on/off with Mr. Crabb, and the hardships she was facing with her children, friends and her father's health. Ms. Medley advised that she relied heavily on Mr. Crabb's opinions and advice during this period despite the instability of their relationship. She relied upon his advice so heavily that she would even sign documents placed in front of her without giving them the full attention they required. By 2016, her condition had been further exacerbated by the large tax debt Ms. Medley had owed and she was forced to pay off a large amount. Despite this, her company was forced into liquidation, around the same time that her brother refused to assist her financially. She discovered around this same period that her brother and sister had been taking from their father's estate and was forced to lodge legal proceedings in relation to this against them. This only led to the further worsening of her underlying condition and Ms. Medley reported struggling significantly. Shortly later, her father died in 2017, turning Ms. Medley's world upside. Ms. Medley advised that the period of 2013-2018 had been one of the hardest periods of her life and had been similar to the period shortly after her marital breakdown in 2008. Despite being able to own and operate a business during this period, Ms. Medley advised that she found herself not giving her responsibilities the full diligence it required and delegated most of the administration side of things to her partner. She relied on him significantly whilst she kept desperately trying to push forward to support her children. Ms. Medley was struggling to think clearly, as can be seen by the growing issues in her life, with the tax debt, the liquidation of her business, not being on top of her father's estate and not recognizing early enough that monies were being taken by her siblings.

In relation to the offences, and as written above, throughout the period of 2013-2018 Ms. Medley relied heavily on the advice of her partner Mr. Stuart Crabb, who informed her that despite the Capi Master Class Licence being expired they could work under another companies' Licence if they rented this. Mr. Crabb made all the arrangements, and Ms. Medley advised that she was paying $1000 a week for this. This was meant to go on until her Licensing issue could be sorted out. Ms. Medley is adamant that she believed she was free to continue with her business as long as she was operating with this rented Licence until her Licence could be sorted out. She admits in hindsight that her biggest mistake was delegating things out to her partner Mr. Crabb and believing everything that he had told her, without looking into this herself. However, during this whole period, Mr. Medley had a number of psychosocial factors that were significantly impacting her and exacerbating her underlying condition which in tum did have some impact on her decision making ability.

The writer accepts that Ms. Medley had been anxious and depressed prior to and during the period of the offending, and that during this period, her condition was exacerbated further by a number of factors. These conditions are positively associated with the development of a range of symptoms both listed in the DSM-V and other known symptoms not. Affective disorders such as Depression and Anxiety Disorders can diminish reflection in the decision-making process that would often inhibit certain actions/certain choices, often leading to a range of impacted decisions.

It is the professional opinion of the writer that Ms. Medley's risk of reoffending falls in the lower ranges. She has no prior criminal record, and Ms. Medley is attempting to stabilize her underlying condition. Ongoing Psychological intervention is required, and Ms. Medley has come under the care of the writer. If the treatment plan below is followed, Ms. Medley's condition should stabilize.

132. The Crown reminded the Court that the application was an aspect of the appellant’s appeal against conviction. The correct approach to the appeal was to consider the evidence before the Magistrate, together with the additional evidence tendered with leave in these proceedings.

133. The Crown submitted that limited weight could be given to the appellant’s accounts to the two psychologists when her version of relevant events was not accepted, either in the Local Court or in the appeal proceedings. This was particularly the case regarding statements the appellant was recorded as making that she had not deliberately engaged in the offending that was the subject of the two sequences.

134. I accept the Crown’s submission in this respect. I cannot accept the appellant’s explanations for how the specific offending took place. Despite this, and even allowing for caution, given that the offending involved dishonesty and the appellant gave no evidence in the Local Court adopting the reports of either psychologist, and also having regard to the need generally to treat untested personal histories with caution, there was no challenge to the more general history that the appellant gave of her ongoing challenges throughout her first marriage, the intra-family conflict during the relevant period and the challenges she had confronted both with the care of her elderly father and managing the business of which she was a Director.

135. On the balance of probabilities, I do accept that at the time these offences occurred the appellant did have, and continues to have, quite significant mental health challenges. I also note the Crown did not challenge the opinions expressed by either psychologist regarding their conclusions about the disorders suffered by the appellant.

136. For these reasons, the first aspect of an application pursuant to s 32 of the Act is established on the evidence, that at the time of the alleged offences and presently, the appellant was/is suffering from a mental condition for which treatment is available in a mental health facility and was/is not a mentally ill person.

137. Turning to s 32(1)(b), the Court is required to decide whether it would be more appropriate to deal with the appellant in accordance with s 32 than otherwise in accordance with law.

138. The case proceeded over an extended period before the Local Court. The substantive issues were determined first. An application under s 32 was only made after adverse conclusions were reached by Mr Covington LCM that both offences had been established on the evidence. The same approach was taken in the appeal.

139. This approach is not precluded by s 32, however it does sit uncomfortably with the ordinary purpose of the provision which was to divert persons charged with criminal offences out of the criminal justice system at an early point in time. Despite this, an application can be made at any point in the proceedings.

140. The appellant submitted the Court would conclude it was more appropriate to utilise s 32 for several reasons.

141. First, as already referred to, the evidence of both psychologists provided the evidentiary basis to conclude that the appellant suffered from mental conditions during the period of the offending and up until the present day.

142. Second, the court would conclude that her judgement was “significantly impaired” and that there was a causal nexus between her behaviour and the mental conditions. I do not accept this submission. Both expert psychological opinions relied upon an account provided by the appellant that was not consistent with the factual findings made by the Local Court. Those same assertions appear in the further report of Mr Awit, tendered for the first time in these proceedings.

143. Although I accept the appellant was suffering from mental health disorders in the relevant period when the offending took place, I’m not satisfied on the balance of probabilities that there is a causal nexus other than a limited reduction in her capacity to engage in fully considered decision-making when deciding to operate her business without the requisite licence and when repeatedly and knowingly misrepresenting that fact to the institutional client IPF. I do not accept the appellant’s mental health impairments significantly impaired her judgement.

144. It was submitted that the offending was at the lower end of the spectrum of objective seriousness for offences of this type. As noted in the primary judgement, the total sum of money received because of the offending was $218,707. I do not accept the submission that her involvement was limited to just sending two emails. I accept the Crown submission set out at paragraph 12 of their supplementary submissions:

The case against the appellant is that she ‘held out’ to IPF throughout both offending periods by representing both expressly and implicitly (i.e., by failing to correct a prior-induced misrepresentation) that her business, Black Collections, of which she represented herself as the Managing Director, had a CAPI licence.

145. Regarding the submission made that the matters were not breaches of trust or confidence because both the appellant’s business and IPF were sophisticated commercial entities who treated each other at arm’s length, I accept this to an extent, given IPF did not actually lose money, however as was noted at paragraph 13 in the Crown written submissions, the evidence did reveal that it was important to IPF that the appellant’s businesses did hold the requisite licence. Unbeknownst to IPF, they were relying on a debt collection agency that was operating unlawfully.

146. It is correct there was no net loss to IPF. It is equally the case that the appellant’s business’ actions in falsely holding out that they were legally entitled to engage in this work, deprived another appropriately licensed business of this work.

147. For these reasons, I don’t accept that the seriousness of the offending is reduced because the appellant only sent two emails.

148. The appellant submits that the appellant’s motivation was not “a particularly gratuitous form of greed.” This is true because the unusual circumstance of these fraud offences is that the appellant’s conduct was motivated by a desire for her business to prosper. She was not a fraudster in the traditional sense, depriving another person of resources by considered dishonesty and providing nothing in return, motivated by a desire to fund a lavish lifestyle.

149. It also submitted that the appellant was “not a calculated fraudster” and her conduct could be regarded as wilful blindness and represented “an ethical blind spot”. I do not accept these submissions because such conclusions are inconsistent with the findings made in the Local Court (and this Court) that the appellant’s involvement was deliberate and was knowingly dishonest.

150. With these matters in mind, I consider that the conclusion reached by the learned Magistrate that the offending was serious and committed over a period of time with intention and deception was correct. I do not accept the appellant’s alternative submission that the seriousness of the offending fell within the low range.

151. It was also submitted, relevant to the exercise of the discretion under s 32, that the appellant was of prior good character and had never had the benefit of a diversionary outcome. Both these propositions are correct, but they are of limited relevance given the legislative purposes of s 32. The primary issues relevant to the exercise of the discretion are the seriousness of the offending and the seriousness of the mental health conditions that exist.

152. It was also submitted that general deterrence is of less significance than would normally be so because there is no longer a requirement for a business such as that run by the appellant to hold a CAPI licence. I accept this to an extent, given that it would appear the appellant’s business operations were limited to pursuing unpaid debts by phone calls and not by personal attendance.

153. It is understood that a business engaged in this form of operation today does not require a CAPI licence. However, as was submitted by the Crown, it cannot be ignored that the pre-existing regulatory system was considered by Parliament at that point to be necessary and, on the evidence, the requirements of the system were flouted by the appellant over an extended period.

154. The Crown made the submission that to dismiss these matters pursuant to s 32 would be to remove the possibility of recording convictions and the imposition of punishment. Dismissal under s 32 would therefore defeat the purposes of the regulatory system in place at the time and would mean that no message could be communicated to others that breach of regulatory systems carries a risk of conviction and adverse consequences.

155. On the appellant’s behalf it was also submitted that the discretionary application of s 32 would not mean that the appellant entirely avoided the consequences of her offending. When pressed, Mr Barber limited this submission to the experience the appellant has had of being prosecuted and the asserted damage to her professional standing. No evidence was adduced on the application about extra curial punishment, although reference was made to it in the submissions. I do not accept this submission given the absence of evidence to support it.

156. On the appellant’s behalf it was noted there was an adequate and realistic treatment plan available, the appellant was no risk to anyone and had good prospects of rehabilitation. I accept these submissions.

157. On my assessment it was not and continues to not be more appropriate to deal with this matter under s 32 of the Act. As noted, this application was made after the substantive proceedings had occurred and after an extended period had passed. The offending was knowingly dishonest and occurred over a significant length of time. It resulted in the appellant’s business receiving significant financial resources that it was not entitled to. Although it can be accepted that aspects of the appellant’s life were difficult during the relevant period and both before and afterwards, I am not persuaded that her mental health condition was significantly causally linked to the conduct. Lastly, the appellant’s mental health conditions are not such, on the evidence, that they have prevented her from working consistently to advance the interests of her business throughout the period relevant to the offending and, apparently, subsequently.

158. For these reasons I dismiss the application that the proceedings be dealt with pursuant to s 32 of the M**ental H**ealth (Forensic P**rovisions) A**ct 1990 and confirm the orders made by Mr Covington LCM.

159. Orders

160. The appellant’s conviction appeal is dismissed.

**********

Endnotes

Appellant’s Written Submissions at [6].

See evidence of Ms Byrnes at AB 15-16.

See License Agreement clause 9.1(d) at AB 504.

16 December 2016 is the commencement of the relevant period regarding sequence 1.

The appellant had an email in her name, as did all other staff. BCS also had a generic email address.

Exhibit 1

The last day of the nominated period for sequence 1.

See Exhibit 1 at [21]

The period relied upon regarding sequence 2 is 18/8/17 to 13/3/18.

Exhibit 1 at [22]

This was the conclusion also of Mr Covington LCM, who noted in his reasons that an aspect of this related to his presentation whilst giving evidence.

See for example his account of his general circumstances, AB 534-5.

The asserted holder of the license was a Mr Toweel. He was not called by either side in the Local Court hearing.

Ms Faris was not called to give evidence. No application was made for a ‘Mahmood’ direction.

See AB at p358.

See for example, the appellant’s affidavit 3/10/2018 at [13]-[16] (AB 490).