Selkirk v Director of Public Prosecutions

1. [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. [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. [3]

   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. [4]

   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. [5]

   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. [6]

   Without objection I granted leave for a further amended summons to be filed in court. It contains the following grounds:

   1. (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. (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. (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.

Submissions of the parties

1. [7]

   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. [8]

   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. [9]

   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. [10]

   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. [11]

   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. [12]

   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. [13]

   Section 52(1) of Crimes (Review and Appeal) Act provides that:

2. [14]

   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:

3. [15]

   Further, Aickin J said the following at 335-6:

4. [16]

   In Maxwell v The Queen (1996) 184 CLR 501; [1966] HCA 46 at 507, Dawson and McHugh JJ said the following:

5. [17]

   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.

6. [18]

   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.

7. [19]

   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.

8. [20]

   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:

9. [21]

   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”.

10. [22]

    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]):

11. [23]

    In Cobiac v Liddy (1969) 119 CLR 257; [1969] HCA 26 at 273 Windeyer J, after an analysis of great learning, said:

12. [24]

    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.

13. [25]

    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.

14. [26]

    Finally, in Sayer-Jones v Director of Public Prosecutions (unreported, 14 May 2019, Supreme Court of NSW) Wilson J expressed the view that:

15. [27]

    “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):

16. [28]

    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. [29]

   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):

2. [30]

   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):

3. [31]

   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):

4. [32]

   Apparently in reply the prosecutor was permitted to make these submissions (Transcript, 19 November 2019; p.21.39 – 22.17):

5. [33]

   On 20 November 2019 the prosecutor made an important concession in relation to Exhibit 4 (Transcript, 20 November 2019; p.8.23 - .38):

6. [34]

   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. [35]

   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):

8. [36]

   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:

9. [37]

   Her Honour spent some time analysing the record of interview (Exhibit 6) and concluded (Transcript, 18 December 2019, p.5.18 - .15):

10. [38]

    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. [39]

    Her Honour then summarised the submissions of the parties which I have set out above. I will not repeat them.

12. [40]

    At transcript 18 December 2019; p.6.28 her Honour said:

13. [41]

    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. [42]

    She expressed her findings in the following terms (Transcript, 18 December 2019, p.8.34 - .36):

Analysis of the decision

1. [43]

   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. [44]

   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. [45]

   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. [46]

   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. [47]

   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](g)) 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]):

2. [48]

   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. [49]

   In R v Sabbah [2004] NSWCCA 28 Adams J said the following with respect to defences arising on the evidence at [104]:

4. [50]

   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:

5. [51]

   Similarly in R v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28 White J said at 36:

6. [52]

   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.

7. [53]

   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.

8. [54]

   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:

9. [55]

   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.

10. [56]

    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).

11. [57]

    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.

12. [58]

    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:

13. [59]

    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]:

14. [60]

    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.

15. [61]

    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.

16. [62]

    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.

17. [63]

    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.

18. [64]

    Exhibit 4 is not evidence which displaces any available claim of right.

19. [65]

    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.

20. [66]

    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. [67]

   Mr Stratton sought leave to amend ground 3 to:

2. [68]

   In R v JS [2007] NSWCCA 272 Spigelman CJ held at [74]:

3. [69]

   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”.

4. [70]

   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]:

5. [71]

   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.

6. [72]

   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]:

7. [73]

   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.

8. [74]

   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:

9. [75]

   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]:

10. [76]

    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.

11. [77]

    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.

12. [78]

    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.

13. [79]

    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. [80]

   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. [81]

   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. [82]

   My orders are:

   1. (1)

      Grant leave to appeal on Ground 1;

   2. (2)

      Appeal allowed;

   3. (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. (4)

      Remit the matter to the Local Court sitting at Sydney Downing Centre for re-determination in accordance with this decision.