Selkirk v Director of Public Prosecutions

Solicitors: Kalantzis Lawyers (Plaintiff) Office of the Director of Public Prosecutions (Defendant) File Number(s): 2019/404199 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Citation: N/A Date of Decision: 18 December 2019 Before: Magistrate Viney File Number(s): 2018/00315831

Judgment

1. By Summons filed on 24 December 2019, the plaintiff, Ms Simone Selkirk, purports to appeal as of right against her convictions in the Downing Centre Local Court on 18 December 2019 pursuant to s 52 Crimes (Appeal and Review) Act 2001 (NSW).
2. On 18 December 2019 Ms Selkirk was found guilty by her Honour Magistrate Viney of 16 counts of dishonestly obtaining a financial advantage by deception contrary to s 192E Crimes Act 1900 (NSW), one count of using a false document to attempt to obtain financial advantage contrary to s 254(b)(ii) Crimes Act and 7 counts of dealing with property the proceeds of crime contrary to s 193C(2) Crimes Act (the convictions).

A summary of the case

1. The case against Ms Selkirk was that on 17 occasions (including the attempt count) between 7 July 2016 and 26 August 2018 she had "returned" various goods to David Jones stores, presenting a falsified online purchase invoice email. The false details were: the proof of payment ("pop") number; credit card details purportedly used for payment of the goods; and the name of the purchaser. Of these matters the prosecution relied in particular on the false pop to constitute the element of deception. She received a "refund" of the price of the items she "returned" specified on the invoice which was credited to one of her three credit cards. None of her cards were the card nominated on the invoice as used for the online purchase. The "deception" specifically relied on was the falsified pop number which was derived from Ms Selkirk's mobile phone number. No "refund" was obtained on the occasion giving rise to the "attempt" charge, 23 February 2018 as Ms Selkirk left the store with the goods before the transaction was complete leaving the falsified invoice behind. The proceeds of crime charges relate to dealing with the refunds credited to Ms Selkirk's credit cards.
2. The summary prosecution was heard on 19 and 20 November 2019. It proceeded by statement of agreed facts under s 191 Evidence Act 1995 (NSW) (Exhibit 1) and documentary evidence including the transcript of an ERISP of 28 November 2018 (Exhibit 6). The agreed facts may be summarised as: Ms Selkirk attended in person at each of the David Jones stores on each occasion charged to obtain a refund; each of the false proof of purchase numbers were a derivative of Ms Selkirk's mobile phone; Ms Selkirk knew that the proof of purchase numbers in each document were false; and she had not used either of the credit cards to which refunds were credited for the purchase of the goods in question. The pattern was the same for the attempt charge.
3. Other documentary evidence included Exhibit 4 referred to as a "dip sample" setting out a range of prices at which one of the types of items returned had been sold over a lesser period covered by the charges; and Exhibit 5 which was Annexure "A" to Exhibit 1 which set out the amounts of the various refunds obtained. The meaning of "dip sample" was not explained in the evidence.

The grounds of appeal

1. Without objection I granted leave for a further amended summons to be filed in court. It contains the following grounds: 1. The learned magistrate erred in conflating the issues of whether Ms Selkirk had engaged in deceptive conduct, namely by providing a false document, with the issue of whether the Plaintiff had acted dishonestly, and did not separately determine whether or not Ms Selkirk had acted dishonestly. 2. If the Court finds that the learned magistrate did determine the question of whether the Plaintiff acted dishonestly, her Honour applied the wrong onus of proof in considering whether the Plaintiff was acting dishonestly, and whether the Plaintiff had a claim of right. 3. Her Honour erred in finding that the Plaintiff obtained a financial advantage, when there was no evidence that the Plaintiff received such an advantage. As the argument was developed by Mr Stratton SC, who appeared with Ms T Hennessy for Ms Selkirk, the question of proof of the element of dishonesty turned on whether the prosecution had "negatived" beyond reasonable doubt a claim of right to each "refund". Similarly, for the no evidence ground the question of financial advantage related to the same matter and the question of whether the prosecution had lead evidence capable of establishing beyond reasonable doubt that in any instance Ms Selkirk had received more than that to which her claim of right attached.

Submissions of the parties

1. Although the plaintiff is the moving party I will summarise the defendant's arguments here given the jurisdictional point raised. Ms Davidson of counsel, who appeared for the prosecution, argued as a "preliminary point" that the Court lacks jurisdiction to hear the appeal as Pt 5 Crimes (Appeal and Review) Act, provides only for an appeal "against conviction or sentence". Ms Davidson submitted that although the magistrate has found the offences proved no formal conviction has been entered and as such no right of appeal has accrued. Ms Davidson also argued that grounds one and three of the appeal do not raise an appeal as of right, as ground one involves a mixed question of fact and law and ground three involves a question of fact, for which leave to appeal must be sought and granted. I interpolate that during the hearing I granted Mr Stratton leave to bring ground one as a mixed question of law and fact. Ms Davidson did not object to this course. She did, however, oppose leave being granted with respect to ground three.
2. Ms Davidson submitted that the right to appeal under s 52 Crimes (Appeal and Review) Act is distinct from administrative law reviews on "no evidence grounds" as s 52 adopts the intensive language of "a question of law alone". Ms Davidson argued that ground three requires consideration of the material before the magistrate and therefore, at best, can only be construed as a mixed question of law and fact. I note that the hearing proceeded on the basis that, if necessary I would deal with the application for leave concurrently with consideration of the merits of the proposed appeal.
3. With respect to the substantive claims Ms Davidson submitted that no "defence" of claim of right was adequately raised on the evidence and it was not inherent in the way that Ms Selkirk returned the goods that she had an honest belief in a claim of right to the refunds. Ms Davidson also argues that the magistrate correctly decided the issue of financial advantage by reference to the dishonest conduct of Ms Selkirk. The magistrate accepted that Exhibit 4 did not contain every transaction but nonetheless found financial advantage on the basis of the falsity of the online purchase receipts and the sum of money refunded to Ms Selkirk's credit card in each instance.
4. Mr Stratton argued that Ms Selkirk has been convicted for the purposes of s 52 Crimes (Appeal and Review) Act because whether a conviction has occurred is a matter of fact. He submitted that after finding Ms Selkirk guilty of the offences the magistrate commenced to deal with sentencing matters including receiving evidence of Ms Selkirk's antecedents (there are no convictions) and requesting a Sentence Assessment Report. These matters together evidenced that a conviction had taken place. In relation to ground three Mr Stratton submits that a no evidence ground is a question of law alone not requiring leave.
5. Mr Stratton argued that for each of the offences charged the Crown was required to prove that Ms Selkirk was acting dishonestly as a separate element from "deception". He submits that the magistrate erred by conflating the issue of deceptive conduct with the question of dishonesty. And this is so notwithstanding that dishonesty may sometimes be inferred from deceptive conduct.
6. On the issue of claim of right, Mr Stratton submitted that the prosecution case proceeded on the basis that it was for Ms Selkirk to prove claim of right and not for the prosecution to disprove it. He argues that it was this incorrect basis, which reversed the standard of proof and upon which the magistrate made her decision. Mr Stratton submits that the defence of claim of right was reasonably available on the evidence. Mr Stratton argues that the prosecution case before the magistrate was that there was an inference that by returning the goods to David Jones with proof of purchase, even if false in material respects, a representation was made to the sales assistant that the goods were purchased from David Jones. He argued that this representation gave rise to a basis for the consideration of a claim of right. It was never contended before the magistrate that the goods were not purchased by Ms Selkirk by another means or that she obtained them as a gift. Indeed the prosecutor admitted that he could not establish "the provenance of the goods". By this reasoning Mr Stratton argued that no financial advantage was obtained by Ms Selkirk if she purchased or received the goods as a gift from David Jones and the amount credited to her account was the same as the sale price. Mr Sutton argues that the "dip sample" (Exhibit 4) tendered before the magistrate, said by the prosecution to demonstrate that some of the refunds for some items exceeded their sale price, was incomplete and was insufficient to demonstrate that Ms Selkirk obtained a financial advantage in relation to all 24 charges.

The preliminary point

1. Section 52(1) of Crimes (Review and Appeal) Act provides that: Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. I would regard Ms Davidson's preliminary point as going to the competence of the statutory appeal rather than the jurisdiction of the Court. The question turns on the meaning of convicted, I would say, in juxtaposition to sentenced in its statutory context. Perhaps surprisingly, conviction, and therefore convicted, is not a word of settled meaning as the authorities referred to below demonstrate.
2. In Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 Barwick CJ said the following in relation to the meaning of conviction at 301: "…the traditional position where there is a trial with a jury is that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction. That accords with long-standing practice in the courts of New South Wales where accused are tried with a jury, where no specific step is taken to convict, or direct the entry of a conviction after verdict. There is the possibility, though extremely rare, of a trial judge refusing to accept the jury's verdict at least on its first return. But usually, that verdict is acted upon and no question of its non-acceptance arises. Thus, having received the verdict of the jury, the trial judge is in a position without taking any further step to sentence the accused. However, the position where an accused has pleaded guilty is not so easily resolved. In this instance, quite clearly the trial judge has the ability to refuse to accept the plea. Consequently, it can scarcely be said that the making of such a plea is itself a conviction. As a rule, the trial judge's acceptance of such a plea is implicit in so far as he indicates, having heard the plea of guilty, that he will act upon it as, for example, by calling for the record from the gaol recorder or by some other act. Such acts indicate that he is proceeding on the footing that the accused is convicted."
3. Further, Aickin J said the following at 335-6: "It was argued for the applicant that, before there is a conviction, the trial judge must use some express words to indicate that situation, such as "I convict the accused". I can see no reason why a conviction may not occur by indirect words or by conduct. If a trial judge does some act consistent only with there being a conviction, I do not consider that he must utter some formula to make that action effective. If a trial judge imposes a sentence without having uttered some such formula, it would be plain that the accused had been convicted because the pronouncing of the sentence would be inconsistent with any other view. This is entirely consistent with the proposition that conviction is necessarily a further step after a plea of guilty, though it does not appear that any further step is necessary after a finding of guilt by a jury. In the present case the applicant adhered to his plea of guilty and it is plain that Judge Goran accepted that plea. The Judge then went on to hear evidence appropriate to assisting in the determination of the sentence to be imposed, both police evidence as to the nature of the particular crimes admitted and as to his past record and on behalf of the accused in mitigation of sentence. Having heard that evidence what he did was first to remand the accused for sentence. That in my opinion is an unequivocal indication that he had found the accused guilty, i.e. convicted him of the offences, because the step of remanding for sentence could not be taken by any court without there having been a conviction. It may be that during the period of the remand for sentence an accused person might change his mind and ask to change his plea and there would seem to be no doubt that he could be allowed to do so. That however is not inconsistent with his having already been convicted because, as was said in Reg. v. Phillips and Lawrence, per Hart J., the change of plea operates to set aside the conviction."
4. In Maxwell v The Queen (1996) 184 CLR 501; [1966] HCA 46 at 507, Dawson and McHugh JJ said the following: "The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea. Thus Tindal CJ said in Burgess v Boetefeur: "The word "conviction" is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court."" (citation omitted)

The observations of Dawson and McHugh JJ confirm that the meaning of conviction will depend on the statutory and factual context in any given circumstances. I observe in passing that it is difficult to interpret convicted in the present context in its "more strictly legal sense" when it is disconnected from the following sentenced by the disjunctive, or.

1. In that respect Ms Davidson submitted that I should have regard to the statutory context of s 52 of the Crimes (Review and Appeal) Act. She argues that had the legislature intended for convictions to include mere findings of guilt, then it would have included a provision to that effect. As support for this proposition Ms Davidson drew my attention to s 10A of the Crimes (Appeal and Review) Act, providing that "[a]n application for annulment…may be made in relation to a finding of guilt made by the Local Court, whether or not the Court proceeds to conviction". By contrast, Pt 3 of the Crimes (Appeal and Review) Act provides for appeals, and applications for leave to appeal, from the Local Court to the District Court from "conviction or sentence (or both)" and specifies that these appeals must be brought "within 28 days after sentence": s 11(2), but cf 12(3); in the latter provision,"28 days after (but not before) sentence." This construct suggests to me that, in s 11(2) an appeal may be brought after conviction but before sentence provided it is brought at the latest not more than 28 days after sentence. But it is unnecessary to decide this.
2. Section 55 of the Crimes (Appeal and Review) Act, which applies to s 52 of that Act provides that where an appeal against conviction is determined the conviction is to be set aside. Ms Davidson submitted that this indicates that Part 5 requires a formal act of conviction to occur in order for an appeal to be heard. In my view this merely begs the question, what does convicted mean? To my mind, s 55 provides more important context by dealing with the Court's power of disposition in "appeals against conviction" and "appeals against sentence" separately. This is another significant indication that conviction in context is not used in the "strictly legal sense" referred to by Dawson and McHugh JJ in Maxwell. In fairness, Ms Davidson did not argue that there could be no conviction until sentence had been passed. Her argument was that something more than mere proof of guilt was required in the statutory context.
3. Ms Davidson drew my attention to some of the case law on the issue. I am of the view that they collectively stand for the proposition that the meaning of conviction will depend on context including the purpose for which the question is posed. For completeness I will set out some of the examples below.
4. In Director of Public Prosecutions (Commonwealth) v Helou (2003) 58 NSWLR 574; [2003] NSWCA 301 Davies A-JA (Meagher and Ipp JJA agreeing) held in circumstances where after Mr Helou's plea of guilty to the charges he was remanded in custody but the judge did not articulate a "conviction", that: "… the course taken by his Honour Judge Kinchington …of remanding Mr Helou in custody for sentence, was a conviction for the purposes of the Act. It matters not that there was not complete finality about the matter or that Mr Helou had an opportunity to seek to change his plea up until the time when he was formally convicted and sentenced"(at [19]). The question there was asked for the purpose of the Proceeds of Crimes Act 1987 (Cth). This passage is entirely consistent with the judgment of Aicken J in Griffiths.
5. In Parkinson v Alexander (2016) 11 ACTLR 190; 58 A Crim R 278 the Court of Appeal of ACT held that a finding by the ACT Magistrates' Court that a finding that an offence has been proven was a "conviction" within the meaning of s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The Court made the following observations about the meaning of conviction at [32]: "the word "conviction" has no "ordinary meaning"; it may be used in a narrow way to refer to a finding of guilt (that an offence has been proved) or it may be used in the broadest sense, as meaning that criminal proceedings have been finalised in that the offender has been sentenced".
6. There are other aspects of Parkinson v Alexander which are of some significance. First, their Honours observed that a dichotomy between conviction, on the one hand, and sentence on the other, distinguishes "between the two principal stages in the criminal justice process, i.e. conviction (including conviction in the sense of finding an offender is guilty) and sentence; conviction precedes and is separate from sentence" (at [54]). Secondly, their Honours pointed out that following the introduction of the availability of "non-conviction orders" in the territory, like those available under s 10 Crimes (Sentencing Procedure) Act 1999 (NSW), a practice developed, at the conclusion of a defended criminal hearing, "for the court to find that the offence is proved (rather than stating that the offender is convicted), thereby seeking to reserve the option of later imposing a non-conviction order" (at [66]). A similar practice may pertain in New South Wales. Thirdly, their Honours said that it should not be assumed that a conviction under the Territory equivalent of the Crimes (Appeal and Review) Act "is the antithesis of a non-conviction order within the meaning of [the Territory Sentencing Act]. The statutes were created at different times and for different purposes" (at [69]). Finally their Honours rejected an argument that an interpretation which equated a finding of guilt with conviction will lead to "an undesirable fragmentation of the criminal justice process" (at [105]). Their Honours observed, inter alia (at [106]): "… in defended proceedings in the Magistrates Court, the sentencing hearing commonly occurs immediately after the question of guilt has been decided. The determination of guilt, the entry of conviction and sentence are considered on the same day and there is no fragmentation. In cases where the sentencing hearing is adjourned to a later date, there can be no valid objection to "fragmentation" if it allows an appellant to challenge a finding of guilt before he or she is required to address sentencing considerations, including whether the finding of guilt warrants the exceptional sentencing outcome of a non-conviction order." (Citation omitted) With respect, I find their Honours reasoning very persuasive here.
7. In Cobiac v Liddy (1969) 119 CLR 257; [1969] HCA 26 at 273 Windeyer J, after an analysis of great learning, said: "… everyone who is found guilty is not necessarily sentenced. He is convicted it is true; but unless he be sentenced, and the sentence and conviction stand on an appeal, he is not to be called a convict. In more recent times it has been said that "the word 'conviction' is sometimes used as meaning the finding guilty; at other times it means that finding together with the judgment . . . of the Court": per Darling J in Harris v Cooke (1918) 88 LJKB 253, at p 255. This, it seems to me, is especially so when the question arises in relation to proceedings in a court of summary jurisdiction. In a trial on indictment the jury's return of a verdict of guilty is properly called a conviction, although it will have no effect in law until judgment be given by the court. But in a court of petty sessions, the same person, the magistrate, decides the issue of guilt and imposes the sentence. If he announces in open court that he convicts the offender, there is a conviction, although for some reason he may not proceed to impose any sentence." (Some citations omitted).
8. Studdert J applied this dictum in Downes v Director of Public Prosecutions [2000] NSWSC 1054. That case dealt with whether the applicant required leave to appeal out of time. Studdert J held that there was no requirement for leave to be sought because although the offence had been proven no formal act of conviction had occurred.
9. In Keys v West (2006) 65 NSWLR 668; [2006] NSWSC 136 the question arose in the context of the availability of a "non-conviction order" under s 19B Crimes Act 2014 (Cth). A conviction had been entered in the defendant's absence and it was argued that this precluded him being discharged on a recognisance without entry of conviction. Hall J (at [53]) held that an ex parte conviction recorded by a magistrate was to be construed as a "conviction by way of a determination as to the defendant's guilt rather than a conviction which finally disposed of the proceedings". Accordingly there was no bar to the order made by the magistrate.
10. Finally, in Sayer-Jones v Director of Public Prosecutions (unreported, 14 May 2019, Supreme Court of NSW) Wilson J expressed the view that: "Whether or not a person has been convicted is a question of fact which will turn on the particular facts of the case. It would be necessary for the tribunal determining that question to have regard to what occurred in the Local Court, what was said by the court and what was said by the applicant. It would be necessary to have regard to the nature of the charges, the penalty that flows as a maximum penalty upon conviction. It would be necessary to have regard to features relevant to the individual accused person and whether or not, having regard to that person's subjective case, it could be said that a conviction and sentence would necessarily flow from the finding of guilt or the plea of guilty (at p.9)." This is entirely consistent, with respect, with the approach of Barwick CJ and Aicken J in Griffiths.
11. "Convicted" and "conviction" are clearly protean words. For my own part I have found the approach of the Court in Parkinson v Alexander very persuasive. Were it necessary to do so, I would be prepared to hold that a finding of guilt in the terms expressed by the learned magistrate, without more would be a conviction. Her Honour said (Transcript, 18 December 2019; p.8.50 - 9.9): "ACCORDINGLY I AM SATISFIED BEYOND REASONABLE DOUBT THAT THE FINANCIAL ADVANTAGE WAS OBTAINED BY THE DEFENDANT, NAMELY, THE REIMBURSEMENT OF HER CREDIT CARD AS A RESULT OF THAT DECEPTION FOR EACH TRANSACTION SET OUT IN ANNEXURE A, EXHIBIT 5 IN THESE PROCEEDINGS, AND THAT THE DEFENDANT PERPETRATED THAT DECEPTION TO OBTAIN THE FINANCIAL ADVANTAGE IN EACH OF THOSE TRANSACTIONS USING A FALSE RECEIPT. IN RELATION TO SEQUENCE 32, I AM SATISFIED THAT THE DEFENDANT USED A FALSE RECEIPT IN AN ATTEMPT TO OBTAIN A REFUND FROM DAVID JONES. ACCORDINGLY, I FIND THE OFFENCE IS PROVED." (Upper case in the original transcript). Earlier her Honour had said, "the deal with proceeds crime, charged in sequences 35 to 41, is made out as the defendant received a financial advantage from producing a false receipt in order to obtain the refund from David Jones" (Transcript, 18 December 2019, p.8.41 - .43).
12. In this context, I am of the view that the magistrate convicted Ms Selkirk of the alleged charges because she found her guilty of all the charges and performed such acts as Barwick CJ in Griffiths describes as "proceeding on the footing that the accused is convicted" (at 302). After the magistrate pronounced her verdict, the Prosecutor tendered Ms Selkirk's record for completion and the magistrate requested a Sentence Assessment Report report and adjourned proceedings on this basis (Transcript, 18 December 2019, p.9). Her Honour ordered the defendant to attend Sydney Office of Community Corrections for a Sentence Assessment Report (Transcript, 18 December 2019, p.10.35). To my mind, the magistrate's conduct was "consistent only with there being a conviction", as Aicken J put it in Griffiths (at 335). It is clear to me that her Honour was proceeding to sentencing Ms Selkirk and I find that Ms Selkirk has been convicted for the purposes of s 52 Crimes (Review and Appeal) Act. I am satisfied that the appeal is competent.

The proceedings before, and the reasons of, the learned magistrate

1. I have summarised the case, including the evidence, brought against Ms Selkirk at [3] - [5] above. It is necessary to set out some of the argument advanced below to put the learned magistrate's reasons in context. Although the hearing proceeded over two days most of the relevant argument was made on the first day, 19 November 2019. In answer to her Honour's question about the elements of the offence the prosecutor said (Transcript, 19 November 2019, p.14.27 - .38): "The deception, your Honour, is the fact that she has provided and has conceded that she provides fraudulent documentation in order to convince David Jones staff to take the property from her possession into theirs on the basis that she has purchased it from David Jones. Therefore receiving the money from David Jones on the basis that David Jones thought that she was entitled to a lawful return. There is no evidence before you that they were purchased lawfully and that she was entitled in any way to return that property and the property that has been not (sic). There is evidence before you that the nominated property was never sold by David Jones."
2. When quizzed about the submission that the goods were never sold by David Jones the prosecutor clarified as follows (Transcript, 19 November 2019, p.15.27 - 16.17): "… none of those were sold to Ms Selkirk and she is purporting that they were sold to her credit card and it was never sold to her credit card using that credit card. It was never sold to any of her other credit cards and she attended David Jones purporting it to be sold to her credit card and showed them the fraudulent receipt in order to convince the staff that she was entitled to the return. …. We can't say beyond reasonable doubt the provenance of them, all we know is the items that she returned were not sold to her in that period. But in any event, your Honour, there is no evidence of the provenance of that, that material, on either a prosecution case or a defence case and this is why, I guess, your Honour, it's a determination of whether or not your Honour finds a prima facie case because whether or not if there's a case to answer for, because an inference could be drawn on a certain reading of our facts that someone attending a location with property that was not recorded as a sale. We can't say where that property came from. But in any event, your Honour, even if it was the property of David Jones and it's merely being returned to them, there's no evidence before you that Ms Selkirk was lawfully entitled to that return because if she was entitled to it, your Honour, respectfully it would be married up with a purchase number of potentially one of her credit cards and it can't be the case that you say, "well" from the bar table speculating on how she came into it because there's been absolutely no evidence put, not that Ms Selkirk has to, but nowhere in her record of interview does she nominate receiving them as gifts or as a lawful purchase. She's silent on that fact." It was made clear that the proceeds offending depended upon proof of the benefit by deception offending. Some importance was put upon Exhibit 4. It was said that Exhibit 4, the "dip sample", proved that some of the refunds exceeded the sale price. Issue about this was joined because it was put on behalf of Ms Selkirk that Exhibit 5 showed that the amounts refunded corresponded to the sale prices.
3. The solicitor appearing for Ms Selkirk below submitted that her Honour could not be satisfied beyond reasonable doubt that Ms Selkirk had received a financial advantage by reference to Exhibit 5. He also submitted that Exhibit 4 was not reliable because it was merely a sample and it was not comprehensive. In relation to the proceeds of crime charges, the solicitor submitted that her Honour could not be satisfied beyond reasonable doubt that the refunds were unlawfully obtained for the reasons he had already rehearsed. In context the argument that the prosecution had not proved "financial advantage" implied it had not been proved that Ms Selkirk was not entitled to claim a refund. This followed also from this submission (Transcript, 19 November 2019; p.21.20 - .25): "… Finally, your Honour, my friend has very, very fairly conceded that there's no evidence anywhere of the provenance of the goods. There's just no evidence at all. And of course your Honour, the onus is always on the prosecution."
4. Apparently in reply the prosecutor was permitted to make these submissions (Transcript, 19 November 2019; p.21.39 - 22.17): "… There's no evidence that she ever made a lawful purchase. Not from the accused, not on the prosecution brief. There is not a skerrick of evidence that she has made a lawful purchase that relates to this property and all your Honour is left with is on every return it's conceded by my friend that a fraudulent receipt was used to obtain those returns, therefore we say the offence is made out and that is the advantage because she's using fraudulent means to obtain money on lawful purchases (sic) that there is no evidence before you that has been made and one would think there could very easily be that evidence put before you if they were in fact lawful purchases, but we say it's not before you and the inference you could draw from that is that they weren't lawful purchases. … whether or not David Jones ends up with property, it doesn't flow straight on that she is entitled to that return unless there's evidence before you that she was either entitled to it in terms of a gift or purchased it by some means or came about it by some means but there is simply no evidence before you. What's before you is a concession that she received the money through fraudulent means and we say your Honour would be satisfied beyond reasonable doubt that she was not entitled to have that and that she has received an advantage through dishonesty and that dishonesty is conceded by my friend." I think it important to interpolate that Ms Selkirk did not concede any dishonesty at any time. What was conceded was deception. Deception and dishonesty are separate elements of the offence. And although, as the authorities referred to below indicate on occasions dishonesty may be inferred from deception, it does not necessarily follow. The solicitor appearing for Ms Selkirk made clear that there was no concession of dishonesty by emphasising the prosecution's concession of the absence of evidence of the provenance of the goods and his submissions that there was no evidence she received no advantage beyond an appropriate refund for the returned goods.
5. On 20 November 2019 the prosecutor made an important concession in relation to Exhibit 4 (Transcript, 20 November 2019; p.8.23 - .38): "HER HONOUR: What does the prosecution say in relation to Mr Blair's submission about Exhibit 4 not referring to all the sequences and that on that basis I would have a doubt? PROSECUTOR: Well, your Honour, all the exhibit 4 does for you really is show that the accused did not purchase those items on any of her cards. The problem being is if there are items missing your Honour could take that into account and not find on those items, but on the items listed within this form this is the only evidence which really goes to the items that the accused - this is the undisputed evidence that there are items sold in the state, none of them have been purchased by the accused using any of her credit cards and she purports in her fraudulent order confirmation that she did so. And with no evidence being called by the accused, no explanation about how she came into possession of these items your Honour can - is only left with that these aren't - these were not sold in accordance to how the accused was returning them and that's what's left before you so even if every items is not listed what is there is categorically that she did not purchase this and that is undisputed - that can't be disputed because no evidence was put up against it." I interpolate again the prosecutor has invited her Honour to reverse the onus of proof. Whether her Honour did so is the subject of ground 2.
6. It is evident from the ERISP (Exhibit 6) that although Ms Selkirk answered most of the questions asked of her, declining to comment in respect of some, she did not make the concessions in relation to the return of the goods that she made in Exhibit 1.
7. Her Honour gave her judgment on 18 December 2019 without the benefit of a transcript. She summarised the Crown case in the following terms (Transcript, 18 December 2019; p.1.37 - .46): "The prosecution case is that on the relevant dates between 7 July 2016 and 26 August 2018, the defendant attended various David Jones stores and handed staff property in the guise of a return. The defendant on each occasion has provided David Jones staff with a false online receipt, false in that the (POP) number is incorrect, the amounts are incorrect to what DJ's was selling items for. The defendant has obtained a refund and money has been returned to one of her credit cards. The prosecution asserts that the defendant deceived David Jones by using a false document and thereby obtaining a benefit. No purchases provided by David Jones records related to the defendant Ms Selkirk." I will not set out in full her Honour's analysis of the evidence. It may be important, however, to set out how her Honour dealt with Exhibit 4 (Transcript, 18 December 2019, p.2.34 - .44): "Exhibit 4 is a sample of the sales history provided by David Jones. The top portion is a record of sales of that item during the relevant period, none of which were to the defendant's card. The bottom is the refund, all related to credit card purchases as nominated on receipts. Exhibit 4 is not complete. It is described by the prosecution as a sample only of transactions provided by the store. Some of the amounts refunded in Exhibit 4 are higher than the stock price, for example sequences 29, 35 and 28, the Yves Delorme quilt cover, the refund amount is higher than the actual products that were sold listed in the table above. Likewise, sequence 14, the lattice king bed cover, the stock price was lower than the refunded amount. From 12 March to 10 May the defendant returned four identical king bed quilt covers and obtained refunds on her American Express card." Her Honour also referred to Exhibit 5 and the concession by Ms Selkirk that she conducted each transaction listed in that document and received the refund as listed in the relevant column of that document.
8. Having reviewed the evidence, her Honour set out general directions of law by which she was bound with which no exception was taken. However, it should be pointed out that her Honour directed herself conventionally in regard to the onus and standard of proof for criminal matters and does not in terms appear to have accepted the invitation to reverse the onus of proof implicit in some of the prosecutor's argument about the absence of proof of the provenance of the goods proffered by or on behalf of Ms Selkirk. Her Honour said: "The defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of her guilt. If I am satisfied there is an explanation consistent with the innocence of the defendant or I am unsure where the truth lies, then I must find the charge as not being proved and I must find the defendant not guilty" (Transcript, 18 December 2019, p.3.10 - .14).
9. Her Honour spent some time analysing the record of interview (Exhibit 6) and concluded (Transcript, 18 December 2019, p.5.18 - .15): "Whilst the defendant elected not to give evidence, as is her right, her answers in her untested record of interview in relation to not checking her bank account statements and how she pays her credit card balance were implausible. Her explanation about her American Express cards often being lost but not reported and then found again are likewise implausible. Whilst she has now acknowledged her identity in relation to the transactions and the receipt used by her as being false, her original answers to police in the record of interview about recognising herself and the details on the receipt were evasive and vague."
10. I interpolate it was not put on behalf of the prosecution that her Honour ought to draw any inference of consciousness of guilt from the record of interview. Clearly, however, her Honour did not regard the account given on the record of interview as one that could possibly be true. This finding of fact was open to her. But it obliged her Honour to put the record of interview to one side and consider whether the evidence she did accept satisfied her beyond reasonable doubt of Ms Selkirk's guilt.
11. Her Honour then summarised the submissions of the parties which I have set out above. I will not repeat them.
12. At transcript 18 December 2019; p.6.28 her Honour said: "In summary, in relation to the submission that the defendant received exactly the same as the value of the goods, I've referred to earlier in this decision instances when the defendant received a different or higher amount than the stock price. Whilst Exhibit 4 does not contain every transaction, as the defendant points out in her submissions, Exhibit 5, which is Annexure A to the agreed facts, does. Exhibit 5 is conceded by the defendant as part of the agreed facts that all of those transactions listed were refunded to one of her credit cards. As I have referred to above in assessing Exhibit 4, the amount refunded to the defendant appears to be higher in some instances than the stock price. This is because the receipts produced were false and the defendant received the money set out in the false receipt. A financial advantage is a sum of money that is refunded the defendant's credit card."
13. Her Honour set out the various elements of each offence charged by reference to the terms of s 192E, s 193C and s 254B(2) of the Crimes Act 1900 (NSW). It is not necessary to set out all of what she said about these matters, which, with respect, closely followed the text of the legislation. Her Honour also dealt with case law she had been referred to by, in particular, the solicitor appearing for Ms Selkirk.
14. She expressed her findings in the following terms (Transcript, 18 December 2019, p.8.34 - .36): "In relation to the 192E(1)(b) charges, sequences 29 to 31, 33 to 34, 42 to 52, in this scenario the defendant received money into her credit card account as a result of a false invoice. The money credited to her credit card, which was not used to purchase the items, is a financial advantage and each transaction is outlined in Annexure A to Exhibit 1, apart from sequence 32 which is a different offence of use a false document, pursuant to s 254B(2). The deal with the proceeds of crime, charged in sequences 35 to 41, is made out as the defendant received a financial advantage from producing a false receipt in order to obtain the refund from David Jones. The amount in her credit card account is the dealing. Each transaction outlined in Annexure A was conducted in the same manner, namely, the defendant produced a false receipt that enabled her to return the items to David Jones."

Analysis of the decision

1. Although there were 17 fraud charges (including the false document charge) and 7 proceeds charges, the parties presented them for decision as a "job-lot". This was perhaps unfortunate because her Honour formed the view that Exhibit 4 provided evidence that "some of the amounts refunded … are higher than the stock price". This was not the use the prosecution wished to be made of the document as I have pointed out above. Moreover, her Honour accepted that Exhibit 4 did not cover every transaction she considered, but rather provided evidence of "instances when the defendant received a different or higher amount than the stock price". However, her Honour made no specific findings in relation to those differences other than referring to, "for example", sequences 29, 35, 38 and 14. Her Honour's ultimate finding seems to have been that the relevant financial advantage element of the offending consisted of "the money credited to her credit card, which was not used to purchase the items". It is not clear that her Honour made any separate use of Exhibit 4, in the absence of specific findings in respect of identified sequences treated differently from what I will refer to as "the general run of these cases". Her Honour was not assisted by the "rolled up" manner in which the case was presented by the parties, but each charge was required to be dealt with separately even if, as the parties accepted, each and all of them followed the same pattern.
2. Although no specific reliance or emphasis was placed upon Ms Selkirk's ERISP (Exhibit 6), her Honour spent considerable time analysing and evaluating it. While the findings her Honour made of implausibility, evasiveness and vagueness were undoubtedly open to her, she did not direct herself as to the use of the ERISP in accordance with the direction proposed by Brennan J (as the Chief Justice then was) in Liberato v the Queen (1985) 159 CLR 507; [1985] HCA 66 at 515. In the absence of any consciousness of guilt argument, and none was made, the rejection of the account given to police, "is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving": Liberato, at 515. A consciousness of guilt argument would involve its own complexities but may be put to one side. In the recent case of De Silva v The Queen [2019] HCA 48; 94 ALJR 100, four Justices of the High Court (Kiefel CJ, Bell, Gageler and Gordon JJ) emphasised that the effect of Liberato and Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 at [57] is that if the tribunal of fact does not belief the account given by the defendant in her interview with the police the account should be put to one side. "The question will remain: has the prosecution, on the basis of evidence that [the tribunal of fact does] accept, proved the guilt of the accused beyond reasonable doubt?": De Silva at [12].
3. There was no tendency notice and accordingly satisfaction beyond reasonable doubt of Ms Selkirk's guilt in respect of one charge proved nothing in respect of any of the others. This may be of some importance given the accepted limitations of Exhibit 4.
4. With respect, her Honour accurately set out the elements of the s 192E fraud offence by reference to the terms of the section as "a person who, by deception, dishonestly … obtains any financial advantage" is guilty of the offence of fraud. There was no issue about deception. It was constituted by the presentation of the false proof of payment document. Nor was there any causation issue that by its presentation the refund was received as her Honour found. However, her Honour's conclusion which I have set out above made no mention of the separate element of dishonesty, particularly in circumstances where the prosecution admitted that it could not establish the provenance of the goods returned and the possibility that they had been purchased in a cash transaction, by use of a different credit card or by someone else on Ms Selkirk's behalf, perhaps as a gift. As I have said, her Honour found that the financial advantage is the sum of money that was returned to Ms Selkirk's credit card. Apart from recording the submission on behalf of Ms Selkirk that the prosecution had conceded that there was no evidence of the provenance of the goods, her Honour did not refer to that consideration again and, as I have said, made no explicit finding about the separate element of dishonesty. This also is of some importance because absent a finding of dishonesty excluding a claim of right to return the goods for a refund the charge of financial advantage by deception is not made out. A person with a bona fide claim of right to return the goods for a refund lacks the necessary mens rea because he or she would not have the intent to defraud ("dishonestly") which is an element of the offence: R v Sanders (1991) 57 SASR 102 at 105, King CJ; at 108, White J; and at 109, Bollen J agreeing with the Chief Justice.

Grounds one and two

1. A claim of right "involves a belief as to the right to property or money in the hands of another": Fuge v Regina [2001] NSWCCA 208 at [24], Wood CJ at CL; Heydon JA and Sully J agreeing. The belief does not have to be reasonable but it must be a genuinely held belief in a legal entitlement to the property or money, rather than a belief in a legal right to employ the means of recovery in fact adopted: Fuge at [24]. In Fuge (at 24) Wood CJ at CL said "the claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches: Astor v Hayes (1988) 38 A Crim R 219 at 222". When the issue of claim of right is sufficiently raised on the evidence the onus is on the Crown to negative that claim beyond reasonable doubt: Fuge at [24]. Such a claim applies to any offence where dishonesty is an element including the offence of dishonestly obtaining a financial advantage by deception: R v Love (1989) 17 NSWLR 608 at 616. Wood CJ at CL also said the following about claim of right (at [26]): "The obligation of the trial Judge to have given such a direction would have continued even though counsel had overlooked requesting it, or had deliberately refrained from seeking it out of concern that it may disadvantage a case of outright denial of any knowledge of, or complicity in a planned robbery: Pemble (1971) 124 CLR 118 at 130; and Stokes v Difford at 32."
2. By analogy with the law with respect to self-defence to a murder charge, Mr Stratton argued that "all that is needed to raise [claim of right] is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded [a claim of right]": Colosimo v DPP [2006] NSWCA 293 at [19] (Hodgson JA).
3. In R v Sabbah [2004] NSWCCA 28 Adams J said the following with respect to defences arising on the evidence at [104]: "The appellant did not testify and did not assert any particular belief by him. This, of course, is not fatal but it is a factor to be borne in mind. The appellant's argument must rest on inference."
4. It is worth setting out in full the passage from R v Love at 616. There a court consisting of Gleeson CJ, Newman and Loveday JJ in a joint judgment by reference to the majority decision of the Court of Appeal of Victoria in R v Salvo [1980] VR 401; (1979) 5 A Crim R 1 said: "[In R v Salvo] the question to be considered was whether the appellant believed he had a legal right to obtain the motor car, not whether the appellant believed he had a legal right to practise the particular deception, that is to say, to pass a worthless cheque. Their Honours pointed out that, as a matter of construction of the statutory provision (which was similar to s 178BA), it is contemplated that there may be a deceptive obtaining of property which is not dishonest. Of course in many cases the deception will be powerful evidence of dishonesty. However, when a claim of legal right of the kind now in question is raised, the issue is whether there was a belief in a legal right to obtain the property, not whether there was a belief in a legal right to practise the deception. Fullagar J said (at 440):

"… 'a claim of right' … does not require a belief in the accused in a right to obtain the property by deception, or by the particular deception employed. It is the obtaining that the Crown must prove was done dishonestly, not the practising of the deception." (Emphasis employed in R v Love)."

1. Similarly in R v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28 White J said at 36: "The dishonest means used by the appellant to achieve or attempt to achieve his desired end of obtaining the money, would no doubt create difficulties for him and provide arguments for the prosecution, in the final process of persuading the jury about the existence of any such genuine belief in the claim of right, but it is clear law that dishonesty about the means is not necessarily inclusive of dishonesty about the end, even though some of the authorities tend to lose sight of that fact."
2. It will be recalled that the gravamen of Ground 1 is the conflation of the separate issues of deception and dishonesty. It is said that her Honour did not separately determine whether or not Ms Selkirk had acted dishonestly. It was said that the question of dishonesty was bound up by the failure to consider whether the prosecution had excluded beyond reasonable doubt the possibility that Ms Selkirk acted in the genuine belief of a claim of right to each refund: R v Sanders at 105 and 108.
3. In R v Sanders (at 108) White J expressed the opinion that "the claim of right defence is always open in statutory offences which include an intent to defraud, unless specifically excluded by the section". The question, of course, is whether the evidence fairly raised a viable claim of right to be dealt with by the learned magistrate.
4. It should also be borne in mind that in accordance with the dictum of Wood CJ at CL in R v Fuge (at [24] (g), referred to above) the claim of right must extend to the entirety of the money taken. His Honour referred to Astor v Hayes (at 222) where Perry J said: "A claim of right cannot be advanced successfully in circumstances where property is taken with a view permanently to deprive the owner of the property unless the claim of right extends to the whole of that property. If the claim of right extends to part of the property taken but not to the whole and there is no intention of returning any part of the property, I do not see how a claim of right can successfully be made out."
5. Mr Stratton submits that the only time her Honour dealt with the issue of dishonesty was when she said "[T]he advantage the prosecution rely on is through dishonesty, which is conceded by the defence". Mr Stratton argues that this passage demonstrated a reversal of the onus of proof.
6. Mr Stratton's submission in this regard should be accepted. However, it is clear that her Honour is merely recording the prosecution's submission. From my reading of the whole of the judgment in context, I am not of the view that her Honour accepted that there had been such a concession. Her Honour clearly understood that what had been conceded was deception by presentation of the false proof of payment document (Exhibit 2) and not dishonesty (Transcript, 18 December 2019, p.7.15 - .35).
7. Whereas one accepts as the Court pointed out in R v Love that the deception practised may itself provide compelling evidence of dishonesty both elements must be separately found by the tribunal of fact. And her Honour made no separate conclusion about the element of dishonesty.
8. I am also of the view that the evidence presented a viable case of claim of right for consideration by her Honour which the prosecution bore the legal onus of negativing beyond reasonable doubt: R v Fuge at [24] (i) Wood CJ at CL. Before detailing the evidence which gave rise to this issue, it is worth adding to the citation of authorities the judgment of Gibbs J when sitting as a Judge of the Full Court of the Supreme Court of Queensland in R v Pollard [1962] QWN 13 at 29: "An accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing. A belief that he may acquire a right in the future is not in itself enough. … It is not to the point that the accused had no right to take the vehicle. If he had honestly believed that he was entitled to take it, or if the jury had a reasonable doubt whether he had such a belief, he should have been acquitted, however wrong his belief may have been, and however tenuous and unconvincing the grounds for it may seem to a judge." (My emphasis)
9. It seems to me, as Mr Stratton argued, that the evidence established that the provision of the refund to Ms Selkirk was caused not only by the presentation of the false POP but also by the "return" of the goods themselves. And that these circumstances together were some evidence of a representation by conduct of an entitlement to the refund sought. Absent evidence of the providence of the goods, more specifically absent evidence that they were not lawfully obtained from David Jones, these matters were sufficient to require consideration of claim of right given that that matter was central to the question of whether the Crown had proved the mental element of an intent to defraud, dishonestly, beyond reasonable doubt. The acceptance of the concession contained in the agreed facts and other evidence tending to prove, that none of Ms Selkirk's credit cards identified in the agreed facts were used to purchase any of the goods does not of itself exclude a claim of right. As Wood CJ at CL said in R v Fuge at [24][f]: "The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value …"
10. Provided the refund transferred to one of Ms Selkirk's credit cards in each transaction was equivalent or less than the price there is an equivalence in value and no financial advantage.
11. The only evidence suggesting that Ms Selkirk received more than a person may have been entitled to on a genuine refund for return of the goods is Exhibit 4. I have set out above her Honour's views about that matter. Her Honour referred to sequences 28, 29, 35 and 14. Sequence 14 was in fact withdrawn and replaced by sequence 41. Sequence 41 is a proceeds charge based on an incident occurring on 19 August 2018 and alleged to have involved $1,046.80. Exhibit 4 shows the stock price of a quilt cover returned as $249.95. Exhibit 5, which is Annexure A to the agreed facts shows the amount refunded in this matter was $249.95 and the price in the same amount. Exhibit 4 and Exhibit 5 marry up in regard to that particular item returned.
12. Sequence 28 was also withdrawn and was replaced by sequence 35. I interpolate that the confusion about sequence numbers was in part generated by the references made by the parties during submissions. Sequence 35 is also a proceeds charge involving $579 said to have been committed on 7 May 2018. Exhibit 4 shows the transaction involving the return of a duvet cover and the sum involved was $579. For the same item and charge, Exhibit 5 shows a refund of $579 and a price of $579. There was no evidence of a receipt by Ms Selkirk over what might be the entitlement to a person with a genuine belief and a right to a refund.
13. Sequence 29 is a fraud charge involving the sum of $958.90. The offence is alleged to have been committed on 18 November 2017. Exhibit 4 shows the list price of a Sheridan quilt cover as $649.95. Exhibit 5 shows three returns on 18 November 2017 including a Sheridan quilt cover. The refund and price of that item are both said to be $649.95. Clearly, there is no advantage over and above the entitlement a person claiming a lawful right to a refund would have. With respect her Honour seems to have been mistaken about the significance of Exhibit 4. As I have pointed out above, the prosecutor did not suggest other than Exhibit 4 was a "sample", not comprehensive and of limited utility.
14. Exhibit 4 is not evidence which displaces any available claim of right.
15. For these reasons I am satisfied that Ms Selkirk has established Ground 1. While this is sufficient to dispose of the appeal, I will deal with the other grounds as they were fully argued. To be clear, I am satisfied that with respect, her Honour did not deal separately with the element of dishonesty bound up as it was with the issue of claim of right.
16. Ground 2 is really put in the alternative to Ground 1 and given that I have upheld Ground 1, it does not arise. However, to the extent to which it asserts that her Honour reversed the onus of proof in relation to the element of dishonesty, and the available "defence" of "claim of right", I am not satisfied that her Honour made this fundamental error. True her Honour recorded the submissions of the prosecutor which strongly invited her Honour to reverse the onus of proof, but there is nothing in the dispositive part of her Honour's reasoning which suggests that she accepted this invitation. In my view Ground 2 is not made out.

Ground three

1. Mr Stratton sought leave to amend ground 3 to: "Ground three: her Honour erred in finding that the Plaintiff obtained a financial advantage, when there was no evidence that the Plaintiff received such an advantage." Ms Davison did not oppose leave being granted to make the amendment. But she argued that Ground 3 did not involve a question of law alone and she opposed leave being granted to argue the matter as a mixed question of fact and law.

Question of law alone

1. In R v JS [2007] NSWCCA 272 Spigelman CJ held at [74]: "Plainly, the formulation "a question of law alone" is more restrictive than the formulation "a question of law". Furthermore, the terminology "question of law" is not equivalent to "error of law". Nevertheless, at least by way of particularisation, it is necessary for a Notice of Appeal to identify the "question of law alone" said to be involved in specific grounds for appeal."
2. In JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669 at [47] Beech-Jones J, by reference to Williams v the Queen (1986) 161 CLR 278; [1986] HCA 88 at 287 and 314, held that there will be a question of law alone "if the question of law can be stated and considered separately from the facts with which it may be connected in a given case".
3. Mr Stratton drew my attention to the decision of the Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744, where the Full Court of the Federal Court held at [34]: "The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact."
4. I acknowledge that in the case of administrative law ground three could be classed as a question of law. However, noting the words of s 52 Crimes (Appeal and Review) Act and the observations of Spigelman CJ in JS a question of law alone is a more restrictive test.
5. In R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256 Spigelman CJ said the following in relation to a question of law alone at [26]: "Even if his Honour erred in applying the correctly stated principle, that process necessarily encompassed an assessment of the facts. The process of 'applying' a legal principle to the facts of a case involves a mixed question of fact and law, which, the Crown accepts, is not within s 107(2) [of the Review Act]". And in R v PL (No 2) [2012] NSWCCA 31 Bathurst CJ said: [37] "There remains the issue of whether the error of the trial judge was an error of law alone or an error of mixed fact and law. It was correctly accepted by the parties that the Crown was not entitled to appeal on a question of mixed fact and law. If what the trial judge did was to wrongly apply the correct principles to the facts, that would be an error of mixed fact and law and an appeal would not lie (see Smith v R (2000) 1 WKR 1644 at 1653). [38] … [39] … The trial judge in these circumstances in my view, applied incorrect principles to his consideration of the issue and thereby committed an error of law alone."
6. In CB v Director of Public Prosecutions [2013] NSWSC 618 Adamson J held that questions as to whether "the magistrate misconceived the elements of the offence under s 195 Crimes Act" and whether "the magistrate erred in conflating the question of prima facie case with proof beyond reasonable doubt" were questions of law pursuant to s 52 Crimes (Appeal and Review) Act.
7. As I have said, Mr Stratton conceived of ground three as a no evidence ground which he submitted constituted a question of law alone. In this regard, in Krishna v Director of Public Prosecutions (NSW) (2007) 178 A Crim R 220; [2007] NSWCCA 318 Rothman J made the following observations at [51] about no evidence arguments: "The difficulty for practitioners and the Court is that where it is alleged that there is no evidence of an element of an offence, that is a question of law alone and does not require leave to appeal. Where, however, there is some evidence of the element, but the evidence is unbelievable, improbable, against the weight of the totality of evidence or so slender as not to satisfy the criminal onus, the question is of fact (or at least mixed fact and law)."
8. Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 concerned a statutory appeal involving 'a question with respect to a matter of law', an admittedly less intense ground than provided by s 52. However, it is relevant to the present discussion to recall that a plurality of Hayne, Heydon, Crennan and Kiefel JJ said at [90]: "It is sufficient, for present purposes, to determine that the ground usually described as a "no evidence ground" raises a question of law. And the first respondent accepted that a no evidence ground may form a basis for a statutory appeal under s 67(1). The first respondent further submitted, however, that whether "there was sufficient evidence before the Tribunal such that a 'no evidence' submission could not be made … is a factual question rather than the identification of a decision of the Tribunal of a question with respect to a matter of law". The first respondent's further submission should be rejected. Whether there was no evidence to support a factual finding is a question of law, not a question of fact. The Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding. As Dixon CJ said in Gurnett v Macquarie Stevedoring Co Pty Ltd [No 2]: "in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact." A tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law."
9. In light of these observations the question is then whether there was no evidence available before the magistrate to conclude that a financial advantage was obtained.

Consideration

1. I accept as Spiegelman CJ said in R v JS that there is an important difference between the formulation, "a question of law alone" and the formulations, "a question of law" on the one hand, and an "error of law", on the other. The verbal formulation in s 52 Crimes (Appeal and Review) Act of, "only on the ground that involves a question of law alone" is narrower and more intense than either "question of law" or "error of law". This intensity arises out of the use of the adverb "only" at the start, and the adjective "alone" at the end, of the construct. However, I agree with Rothman J that a ground of appeal which asserts that there is no evidence of an element of an offence involves a question of law alone. In reaching this conclusion I have adopted and applied the approach of the plurality of the High Court in Kostasas set out above.
2. The ground can be formulated without reference to the facts and evidence. The consideration of the ground will generally involve a review of some or all of the evidence led at first instance, but requires no evaluation or weighing of the evidence. Of course, I accept that different statutory formulations will provide different avenues of appeal. And administrative law considerations concerning the limits of legality in decision-making serve a legal purpose different from a statutory right of appeal. However, the question of whether there is evidence to support an ultimate and necessary finding of fact is so well identified in disparate fields of legal discourse as involving a question of law alone that it would be strange if the ground that there was no evidence to support an ultimate finding of fact involving an element of the offence was not within the statutory right of appeal provided by the operative words of s 52 Crimes (Appeal and Review) Act.
3. Focusing solely and separately upon the element of financial advantage, clearly if the element of dishonesty were proved, or to put it another way, the related "defence" of claim of right were negatived, which may amount to the same thing, there was evidence, as her Honour found, that Ms Selkirk received a financial advantage. That evidence was the agreed fact that the amount of each refund shown in Exhibit 5 was transferred to one or other of her identified credit cards. For the reasons I have already given, Exhibit 4 is not evidence that Ms Selkirk received a financial advantage over and above the amount a person with a genuine entitlement to a refund in respect of the various items listed would receive. If the prosecution established dishonesty beyond reasonable doubt, claim of right would have been negatived, and Ms Selkirk would not have been entitled to any refund. Thus the receipt of the agreed electronic financial transfer applicable to the individual charge in her credit card account would have been a financial advantage.

Disposition

1. It follows from my decision that the conviction for each of the fraud offences must be set aside. This includes the "attempt" offence of using a false document to obtain a financial advantage, an intention to defraud applies equally to that charge. It also follows that the convictions for each of the proceeds offences likewise must be set aside. Each of them was wholly dependent upon the refund being the proceeds of a charged fraud offence of which Ms Selkirk was convicted.
2. Given that there was evidence supporting the charges before her Honour and that the error I have found consists of omitting to deal with the issue of dishonesty and the related matter of claim of right, which I have found fairly arose on the evidence, it will be necessary to remit the matters to the local court to be dealt with in accordance with these reasons.
3. My orders are: 1. Grant leave to appeal on Ground 1; 2. Appeal allowed; 3. Set aside each conviction for charges in sequences 29 to 52 in matter no. 2018/00315831, H number 6829324 entered in the Local Court of New South Wales at Sydney Downing Centre on 18 December 2019; 4. Remit the matter to the Local Court sitting at Sydney Downing Centre for re-determination in accordance with this decision.

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: 11 November 2020