FEDERAL COURT OF AUSTRALIA
O’Donoghue v Ireland [2009] FCAFC 184
EVIDENCE – inferences – the extent to which it is appropriate to draw inferences from the material relied upon in the supporting documents
CRIME – width of expression ‘any fraudulent means’ in Criminal Code (WA), s 409
Larceny Act 1916 (Ireland) ss 20(1)(iv)(a), 32(1)
Criminal Code (WA) ss 1, 7, 370, 371, 371(1), 371(2), 378, 409, 409(1)
Cabal v United Mexican States (No 3) (2000) 186 ALR 188
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528
Graham-Helwig v Western Australia (2005) 30 WAR 221
Griffiths v United States of America (2005) 143 FCR 182
Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184
Minister for Home Affairs v Tervonen (2008) 166 FCR 91
O'Donoghue v Ireland [2009] FCA 618
R v Olan, Hudson & Hartnett [1978] 2 SCR 1175
Timar v Republic of Hungary [1999] FCA 1518
Truong v The Queen (2004) 223 CLR 122
United States of America v Holt (1994) 49 FCR 501
Vasiljkovic v Commonwealth (2006) 227 CLR 614
Wiest v Director of Public Prosecutions (1988) 23 FCR 472
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
VINCENT THOMAS O'DONOGHUE v IRELAND and GRAEME NEIL CALDER
WAD 99 of 2009
FINN, GILMOUR AND MCKERRACHER JJ
22 December 2009
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
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general division |
WAD 99 of 2009 |
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ON APPEAL FROM THE FEDERAL COURT |
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VINCENT THOMAS O'DONOGHUE Appellant
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AND: |
IRELAND First Respondent
GRAEME NEIL CALDER Second Respondent
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JUDGES: |
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DATE OF ORDER: |
22 December 2009 |
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WHERE MADE: |
PERTH |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant is to pay the costs of the respondents to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
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general division |
WAD 99 of 2009 |
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ON APPEAL FROM THE FEDERAL COURT |
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BETWEEN: |
VINCENT THOMAS O'DONOGHUE Appellant
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AND: |
IRELAND First Respondent
GRAEME NEIL CALDER Second Respondent
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JUDGES: |
FINN, GILMOUR AND MCKERRACHER JJ |
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DATE: |
22 December 2009 |
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PLACE: |
PERTH |
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
1 The first respondent (Ireland) wishes to extradite the appellant (Mr O’Donoghue) on charges relating to misuse of funds with which he was entrusted while operating a business.
2 On 9 June 2009 the primary judge determined that Mr O’Donoghue was eligible for surrender in relation to extradition offences within the meaning of s 19(2) of the Extradition Act 1988 (Cth) (the Act): O'Donoghue v Ireland [2009] FCA 618. Those offences were eight counts of fraudulent conversion contrary to s 20(1)(iv)(a) of the Larceny Act 1916 (Ireland) (the Larceny Act), alternatively, eight counts of obtaining property by false pretences contrary to s 32(1) of the Larceny Act.
3 The specific orders were:
1. The application for review is dismissed.
2. The applicant to pay the respondent's costs to be taxed, if not agreed.
3. The Court determines that Vincent Thomas O'Donoghue is eligible for surrender, within the meaning of subs 19(2) of the Extradition Act 1988 (Cth) in relation to the following extradition offences:
· 8 counts of fraudulent conversion contrary to s 20(1)(iv)(a) of the Larceny Act 1916 (Ireland); or in the alternative
· 8 counts of obtaining property by false pretences contrary to s 32(1) of the Larceny Act 1916 (Ireland).
4. The order made by the second respondent pursuant to s 19(9) of the Extradition Act 1988 (Cth) on 3 April 2009 ought to be confirmed by order pursuant to s 21(2)(a) of the Extradition Act 1988 (Cth).
4 The circumstances which have given rise to the charges are outlined in the ‘Allegations: Overview’ in the Statement pursuant to Art V of the Treaty on Extradition between Australia and Ireland (the Statement), on which Ireland relies.
5 In substance, those allegations are that during 1998 and 1999 Mr O’Donoghue owned and operated a business known as ‘Property World’ based in Dublin, Ireland. Property World purported to assist customers in the purchase of premises, particularly for investment purposes. Ireland alleges that from November 1998 to July 1999, Mr O’Donoghue induced a customer, Mr Redmond, to write cheques in respect of property transactions which were not ‘genuine’. Initially, Mr Redmond was led to believe by or on behalf of Mr O’Donoghue that he was entrusting Property World with a payment constituting a deposit for the purchase of premises. Mr Redmond was informed by or on behalf of Mr O’Donoghue that the transaction had ‘fallen through’. He was then persuaded to invest a further sum in order to secure the purchase of other premises. That process recurred in respect of five different purchases involving seven different cheques before Mr Redmond realised that he had not received and was unlikely to receive any benefit from his investments. The matter was then reported to the Irish police. While those events took place, Mr O’Donoghue also allegedly obtained from another customer, Mr Henderson, a cheque for deposit on a further property transaction after making various false representations.
6 As part of the ‘Allegations: Overview’, Ireland stipulates that the ‘accepted business practice’ in Ireland in respect of such payments by clients would be for the monies to be held on trust on the client’s behalf in a business or client account. The funds would then be released as and when required for payment. Rather than adopting the ‘accepted business practice in Ireland’, Mr O’Donoghue either converted the cheques to cash which he used for his own benefit or diverted them in one case to pay business debts accrued by Property World. In respect of a number of the premises the investigations established that Property World had no instructions to offer them for sale. Further, some of the properties were not for sale at all, at the time when Mr O’Donoghue’s business sought the deposit cheques. It is alleged by Ireland that the obtaining of all of the cheques was achieved fraudulently as a result of misrepresentation that a genuine transaction was anticipated.
7 Mr O’Donoghue appeals from the primary judge’s decision.
STATUTORY FRAMEWORK – THE COURT’S TASK
8 By s 19(1) of the Act a magistrate is to consider whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country. Eligibility is governed by s 19(2) of the Act.
9 The determination by a magistrate on 3 April 2009 as to eligibility of Mr O’Donoghue for extradition was reached under s 19(2) of the Act. That provision relevantly provides:
(2) … the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a) the supporting documents in relation to the offence have been produced to the magistrate;
…
(c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia;
… (emphasis added)
10 Although there were two questions raised on review before the primary judge, ultimately they were resolved by the answer to the second question. The first question was whether the documents relied upon by Ireland met the requirements for ‘supporting documents’ as defined in s 19(3) of the Act and the second was whether the alleged conduct of Mr O’Donoghue as set out in those documents, if it had taken place in Western Australia, would have constituted an extradition offence against the laws of Western Australia (s 19(2)(c)).
11 No issue was taken with any formal aspect of the supporting documents and no issue was taken with the approach of the primary judge which was to treat the answer to the second question as being determinative of both aspects.
12 ‘Supporting documents’ has a defined meaning under s 19(3) of the Act. The supporting documents were produced to the magistrate. They include a duly authenticated warrant for the arrest of the person and a duly authenticated statement in writing setting out a description of and the penalty applicable in respect of each alleged offence. Section 19(3) of the Act provides:
19 Determination of eligibility for surrender
...
(3) In paragraph (2)(a), supporting documents, in relation to an extradition offence, means:
(a) if the offence is an offence of which the person is accused—a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;
…
; and
(c) in any case:
(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii) a duly authenticated statement in writing setting out the conduct constituting the offence.
13 Ireland emphasises that the conclusion reached under s 19(2) of the Act as to eligibility for surrender can stand even if only one offence in each instance is established rather than both offences.
14 Section 10(3) of the Act confirms this:
10 Interpretative provisions relating to offences
…
(3) In determining for the purposes of paragraph 7(d), subparagraph 16(2)(a)(ii) or paragraph 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect:
(a) where the conduct or equivalent conduct consists of 2 or more acts or omissions—regard may be had to all or to only one or some of those acts or omissions;
(b) any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded. (emphasis added)
15 The primary submission of Mr O’Donoghue was that the documents produced by Ireland in support of its extradition request failed to identify conduct on his part sufficient to either meet the requirements of s 19(2)(c) of the Act and/or to properly satisfy the Court that it or equivalent conduct constituted an extradition offence in Western Australia.
16 It was not open to Mr O’Donoghue to advance evidence to contradict the allegations in the extradition proceeding (s 19(5) of the Act) nor, for that matter, in the hearing before the primary judge (s 21(2) of the Act). That hearing, as his Honour correctly noted, was a rehearing on the basis of the materials before the magistrate (s 21(6)(d) of the Act).
17 The Treaty on Extradition between Australia and Ireland done at Dublin, Ireland on 2 September 1985 (the Treaty) provides detail (at [2](a), (d) and (e)) as to the information which must be supplied in support of the extradition request.
18 No issue is taken with any of the formalities under the Treaty or the Act. The appeal is directed to the substance of the information, specifically whether the conduct described, had it occurred in Western Australia, would be capable of constituting an extradition offence in Western Australia.
CHARGES
19 The detail of the warrants in respect of the 16 charges and the statements of alleged acts or omissions provided by Ireland (pursuant to Art V of the Treaty) are set out in the primary judgment (at [22] - [37]). They can be summarised for present purposes as follows.
20 The first set of charges is comprised, respectively, in warrants A and I. The charges for those (and all subsequent) warrants are in the alternative. Warrants A and I relate to Mr O’Donoghue’s dealing with a cheque payable to Mr Redmond in the sum of ₤4,000 on 25 November 1998. The cheque, it is said, was entrusted to Property World by Mr Redmond to put on deposit for the purchase of property in Omeath Street, Belfast, Northern Ireland. The difference between the two warrants is that the first of the warrants addresses a conversion of the cheque by Mr O’Donoghue to his own use or benefit whereas the second warrant asserts that the cheque was obtained from Mr Redmond with intent to defraud, by falsely pretending that it was required as a deposit for the property.
21 More detailed allegations contained in the statement filed with the authorised person’s certificate dated 3 August 2005 disclose that
‘4.1 On or about the 25th November 1998 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £4,000 in relation to the purchase of premises at 73 Omeath Street, Belfast, Northern Ireland (“the first property deal”). The inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, Geraldine Derwin, an employee of Property World, convinced Barry Redmond that Property World would secure the purchase on his behalf of the said premises. She made representations to Barry Redmond that the funds would be used to pay a large proportion of the deposit payment for the premises, the deposit being 10% of the purchase price. It is alleged that Vincent O'Donoghue subsequently took responsibility for the actions of his employee in obtaining said payment. Notwithstanding that the cheque was handed by Barry Redmond to Geraldine Derwin no material efforts were made by Vincent O'Donoghue or Property World to secure the purchase of the said premises. The cheque was made payable to Barry J Redmond and he endorsed the back of it before handing it to Property World. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash. Although premises at 73 Omeath Street were for sale and enquiries about it were made on behalf of Property World, ultimately the premises were sold to a different purchaser. It is alleged that the £4,000 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of 73, Omeath Street or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's subsequent conduct in respect of Barry Redmond. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as part payment of the deposit was false.’
22 The second set of warrants (B and J) relate to another dealing between the same entities and on the same date (25 November 1998). This, however, was in relation to a cheque for ₤592 said to be entrusted to Property World by Mr Redmond and required for the same purposes and misused for the same purposes. This cheque was payable to Mr Redmond and presumably endorsed in favour of Property World.
23 The statement at para 4.2 repeats the same allegations as in respect of warrants A and I save that the second cheque was for ₤592.
24 The third set of warrants (C and K) pertain to similar conduct about six weeks later on 8 January 1999 in respect of a cheque for ₤2,315 payable to Mr Redmond, this time to be put as a deposit towards the purchase of a property in Battenburg Street, Belfast, Northern Ireland. The same charges are raised.
25 The details of the allegations in warrants C and K are only slightly different. They are set out as follows:
‘4.3 On or about the 5th January 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £2,315 in relation to the purchase of premises at 49 Battenburg Street, Belfast, Northern Ireland. Again, the inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, and because of their previous dealings in respect of the first property deal, Geraldine Derwin and Anne Marie Murphy, employees of Property World, convinced Barry Redmond that Property World would secure the purchase on his behalf of the said premises. They made representations to Barry Redmond that the funds would be used to pay the deposit for the premises. It is alleged that Vincent O'Donoghue subsequently took responsibility for the actions of his employees in obtaining said payment. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash. Although premises at 49, Battenburg Street were for sale and enquiries about it were made on behalf of Property World, ultimately the premises were sold to a different purchaser. It is alleged that the £2,315 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of 49, Battenburg Street or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as a deposit was false.’
26 The fourth set of charges (warrants D and L) relate to conduct a little over a month later. The conduct was relevantly in the same terms and related to a cheque for ₤330 which Mr O’Donoghue is said to have converted for his own use or benefit when it had been entrusted to Property World in order to pay surveyors' fees on a property in Ainsworth Avenue, Belfast, Northern Ireland.
27 Again, the details set out in the statement filed with the authorised persons certificate are a little different and are in the following terms:
‘4.4 On or about the 17th February 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £330 in relation to the purchase of premises at 101, Ainsworth Avenue, Belfast, Northern Ireland. Again, the inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, and because of their previous dealings in respect of the earlier property deals referred to in paragraphs 4.1 to 4.3 above, Anne Marie Murphy, an employee of Property World, convinced Barry Redmond that Property World would secure the purchase on his behalf of the said premises. She made representations to Barry Redmond that the funds would be used to pay surveyor's fees in respect of the premises. It is alleged that Vincent O'Donoghue subsequently took responsibility for the actions of his employee in obtaining said payment. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash. It is understood that premises at 101, Ainsworth Avenue were for sale but the purchase of them was never secured by or on behalf of Barry Redmond. Barry Redmond was informed by Property World that a particular firm of solicitors had conduct of the sale of all the Belfast Properties. In fact the named firm of solicitors never had any dealings with these premises. It is alleged that the £330 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of 101, Ainsworth Avenue or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required to cover surveyor's fees was false.’
28 The fifth set of charges (warrants E and M) deal with a further cheque of ₤448 on or about the same date (17 February 1999) said to be required as a deposit towards the purchase of the property in Ainsworth Avenue, Belfast, Northern Ireland. The same charges are raised in respect of that conduct although rather than the funds being put to Mr O’Donoghue’s personal use, they were allegedly used to reduce debt owed by Property World, his business. The detailed allegations are in these terms:
‘4.5 Also on or about the 17th February 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World business a second cheque, this time in the sum of £448, in relation to the purchase of the same premises in Ainsworth Avenue, Belfast [to which warrants D and L relate]. Again, the inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, and because of their previous dealings in respect of the earlier property deals referred to in paragraphs 4.1 to 4.4 above, Anne Marie Murphy, an employee of Property World, convinced Barry Redmond that Property World would secure the purchase on his behalf of the said premises. She made representations to Barry Redmond that the funds would be used to pay a proportion of the deposit payment for the premises. It is alleged that Vincent O'Donoghue subsequently took responsibility for the actions of his employee in obtaining said payment. It is alleged that, at some stage between that day and the 4th March 1999, this cheque was used to pay a debt incurred by Property World to the Sunday Tribune Newspaper and presented by an employee of Property World as part payment on an overdue bill. It is understood that premises at 101, Ainsworth Avenue were for sale but the purchase of them was never secured by or on behalf of Barry Redmond. It is alleged that Vincent O'Donoghue never had any intention of directing the £448 paid by Barry Redmond towards the purchase of 101, Ainsworth Avenue or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as part-payment of the deposit was false.’
29 The sixth set of charges (warrants F and N) relate to similar conduct but in respect of a cheque in the sum of ₤2,000. That cheque also is payable to Mr Redmond and is dated 23 June 1999. This amount was to be put as a deposit towards different property, namely, a portfolio of properties at Portmine, North Belfast, Northern Ireland. Similar charges are raised in respect of this cheque and this conduct.
30 The details in these allegations differ from those in the details in paras 4.1 - 4.5 inclusive and 4.8 in that they appear to make it clear that Mr O’Donoghue was personally dealing directly in each instance with the client. In the previous instances, the allegations appear to indicate that the communications took place between Mr Redmond and employees of Property World rather than with Mr O’Donoghue direct. The details of para 4.6 are in these terms:
‘4.6 On or about the 23rd June 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £2,000 in relation to the purchase of a portfolio of four properties in Portmine, North Belfast, Northern Ireland. Again, the inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, and because of their previous dealings in respect of the earlier property deals referred to in paragraphs 4.1 to 4.5 above, Vincent O'Donoghue convinced Barry Redmond that Property World would secure the purchase on his behalf of the said portfolio. Vincent O'Donoghue made representations to Barry Redmond that the funds would be used to pay a proportion of the deposit payment for the four properties. Vincent O'Donoghue further represented that the monies already paid by Barry Redmond to Property World as referred to in paragraphs 4.1 to 4.5 above would be put towards the said deposit. It is alleged that Barry Redmond handed the cheque to Vincent O'Donoghue in person. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash. The four properties in question were for sale at the relevant time and the vendor had instructed Vincent O'Donoghue to handle the sale. However, the vendor subsequently withdrew these instructions and the proposed purchase by Barry Redmond was not completed. It is alleged that the £2,000 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of any of the properties in Portmine or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond as set out herein. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as part payment of the deposit was false.’
31 The seventh set of charges (warrants G and O) relates to conduct a few days later relating to a cheque in the sum of ₤9,643.05, again, handed to Mr O’Donoghue in person by Mr Redmond. This cheque was also said to be entrusted to Property World by Mr Redmond as a deposit towards the purchase of the portfolio of properties at Portmine, North Belfast, Northern Ireland. The same charges are raised. The details of these allegations are set out in these terms in para 4.7 of the statement filed with the authorised persons certificate:
‘4.7 On or about the 2nd July 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay Property World a second cheque, this time in the sum of £9,643.05, in relation to the purchase of the same portfolio of properties in Portmine, North Belfast, Northern Ireland… [The cheque represented an additional] proportion of the deposit payment for the four properties, the balance of the deposit being made up from the monies already paid by Barry Redmond to Property World... It is alleged that Barry Redmond handed the cheque to Vincent O'Donoghue in person. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash… [T]he four properties in question were for sale at the relevant time and the vendor had instructed Vincent O'Donoghue to handle the sale. However, the vendor subsequently withdrew these instructions and the proposed purchase by Barry Redmond was not completed… It is alleged that the £9,643.05 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he could never have had any intention of directing it towards the purchase of any of the properties in Portmine, North Belfast, Northern Ireland or [any other premises]… Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as part-payment of the deposit was false.’
32 Finally, the eighth set of charges (warrants H and P) relate to conduct involving a separate client, Mr Henderson and advice given to him before obtaining (and in order to obtain) funds from him. The charges are directed to Mr O’Donoghue’s dealing with a cheque in the sum of ₤15,500 dated 14 January 1999. That cheque was converted to Mr O’Donoghue’s own purposes on 22 January 1999. It had been ‘entrusted to Property World by [Mr] Henderson to put as a deposit towards the purchase of [a property in] … North Brunswick Street, Dublin …’. The detail of this charge is slightly different however. Warrant P alleges that Mr O’Donoghue obtained the cheque from Mr Henderson with intent to defraud by falsely pretending that the apartment was eligible for tax relief in respect of 80 per cent of the purchase price of ₤155,000 and was also eligible for full mortgage interest relief, neither of which, it is alleged, was the case. The facts in support of this different allegation are set out by para 4.8 of the statement filed with the authorised persons certificate. Paragraph 4.8 is in the following terms:
‘4.8 On or about the 14th January 1999 in Dublin, Ciaran Henderson was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £15,500 in relation to the purchase of premises at 31, Richmond Square, North Brunswick Street, Dublin 7. The inducements took a number of different forms and were part of an ongoing process. By the use of conversation, property brochures and newspaper advertising, Geraldine Derwin, an employee of Property World, convinced Ciaran Henderson that Property World would secure the purchase on his behalf of the said premises. She made representations to Ciaran Henderson that the funds would be used to pay the deposit for the premises, the deposit being 10% of the purchase price. It is alleged that Vincent O’Donoghue subsequently took responsibility for the actions of his employee in obtaining said payment. [The cheque represented the deposit payment for the premises,] In paying the deposit to Property World, Ciaran Henderson understood, as a result of oral representations made by or on behalf of Vincent O'Donoghue, that he would be entitled to tax relief at 80% of the total purchase price of £155,000. In addition, the newspaper advertisement placed by or on behalf of Vincent O'Donoghue, to which Ciaran Henderson had responded, had represented that the tax relief was 'full' and had implied that the premises qualified for mortgage interest relief. The Property World brochure in respect of the premises, supplied to Ciaran Henderson prior to his payment of the deposit, specifically stated that the premises qualified for 80% tax relief and for mortgage interest relief. Subsequent enquiries made by solicitors acting on behalf of Ciaran Henderson established that the entitlement to tax relief was limited to 80% of the original purchase price of the premises when newly built, namely £130,000, and that mortgage interest tax relief was not available. As a result, Ciaran Henderson sought to withdraw from the purchase but was unsuccessful in securing from Vincent O'Donoghue the return of his deposit. Instead, Vincent O'Donoghue attempted to interest Ciaran Henderson in the purchase of different premises in Pudding Row, Temple Bar, Dublin 2 and consistently refused any form of refund. It is alleged that the cheque for £15,500 was presented at a bank by Vincent O'Donoghue on or about the 22nd January 1999 and that, rather than lodging it in a bank account, he converted it to cash. Although premises at 31, Richmond Square were for sale, a different agent had conduct of the sale on behalf of the vendor and, ultimately, the premises were sold to a different purchaser. Further, this different agent was the sole agent for the sale of all properties in Pudding Row. It is alleged that the £15,500 paid by Ciaran Henderson was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of 31, Richmond Square or any other premises. Such an allegation is based on the fact that Vincent O'Donoghue had no authority to offer those premises for sale and on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond… Accordingly, it is alleged that the representation made to Ciaran Henderson that the cheque was required as a deposit was false.’
33 Following the ‘Allegations: Overview’ in the Statement, there is a further section headed ‘5. Allegations: Charges’. It is necessary to refer to this passage verbatim as it makes clear in a summary fashion the basic contentions advanced by Ireland.
34 This passage is in the following terms:
5.1 Each of the eight allegedly fraudulent transactions referred to in paragraphs 4.1 to 4.9 above give rise to alternative offences of Obtaining Property by False Pretences and of Fraudulent Conversion.
5.2 It is alleged that, in each instance, Vincent O’Donoghue was aware that the property transaction was not genuine, that he was therefore obtaining each cheque by falsely pretending that there was real sale in contemplation and that the drawer of the cheque was induced by this pretence to give the cheque to Vincent O’Donoghue. In these circumstances, an offence of Obtaining Property by False Pretences is made out. (emphasis added)
5.3 In the alternative, if it were the case that, when each of the cheques referred to in paragraphs 4.1 to 4.8 above were obtained, Vincent O’Donoghue was intending to use the monies for a genuine property transaction, it is alleged in each instance that he did not put the monies to that use and instead fraudulently converted them to his own use. In order for the offence of Fraudulent Conversion to have been committed, the initial entrustment must have been made in good faith on the part of Vincent O’Donoghue. If he used any pretence or fraudulent means to obtain the fiduciary ownership of the monies, then an offence of obtaining by false pretences will have been committed. In this respect, offences of fraudulent conversion and of obtaining by false pretences are mutually exclusive and may be charged as alternative offences.
5.4 It is intended to prosecute Vincent O’Donoghue on indictment in the Circuit Criminal Court for all the offences set out in the warrants attached hereto. All of these offences were committed within Ireland.
5.5 The offences of Obtaining Property by False Pretences and of Fraudulent Conversion are indictable offences. There is no law which prohibits the commencement of prosecutions for indictable offences after the passage of time. Accordingly, the prosecution of Vincent O’Donoghue for the offences for which extradition is sought may commence at any time.
APPLICABLE PRINCIPLES
35 Section 19(2)(c) of the Act deals essentially with ‘dual criminality’. As observed in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 533-534, when an extradition country seeks the extradition of a person from Australia it must invoke the powers of a magistrate under s 12(1) of the Act and of the Attorney-General under s 16 of the Act. Under s 12(1) an application in statutory form must be made to a magistrate for the issue of a warrant for the arrest of that person. Section 6 of the Act defines the term ‘extraditable person’. If the magistrate is satisfied on the basis of information given by the affidavit that the person is an extraditable person in relation to the extradition country, he or she is required to issue a warrant for the arrest of the person and to send forthwith to the Attorney-General a report of the issue of the warrant together with a copy of the affidavit (s 12(1)(b), (2)). Where a person does not consent to being surrendered for extradition, the person will be remanded in custody or on bail pending the conduct of proceedings under s 19 of the Act.
36 The role of the magistrate conducting proceedings under s 19 is to determine whether the person is eligible for surrender in relation to the extradition offence or offences for which surrender is sought by the extradition country. The person will only be eligible for surrender in that sense if the supporting documents in relation to the offence have been produced to the magistrate (s 19(2)(a)); there are no relevant limitations, conditions or exceptions (par (b)); the magistrate is satisfied as to dual criminality ((c)); and the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence (par (d)). Paragraphs (b) and (d) are irrelevant to the present appeal.
37 As observed by the Full Court in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 300, proof of the accusation in respect of the foreign crime is, for the purpose of the proceedings before the magistrate, satisfied by production of the warrant duly authenticated. The facts relevant to that crime are then proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do by reference to Australian law, is to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of the State or Territory of Australia or the Commonwealth law, as the case may be.
38 Statements may be sufficient to satisfy s 19(3)(c)(ii) of the Act whilst they would be inadequate to establish criminality in Western Australia as required by s 19(2) of the Act: Griffiths v United States of America (2005) 143 FCR 182 at [53], [55].
39 Extradition involves the deprivation of liberty and the associated disruption of lives of the requested persons. Notwithstanding this, the determination of whether or not there has been compliance with the documentary requirements of s 19(3) of the Act is a matter for practical judgment and assessment. The Court prefers substance over form in its consideration: Cabal v United Mexican States (No 3) (2000) 186 ALR 188 (at [134]). A narrow ‘technical’ approach to construction is not appropriate but any remaining ambiguity should be resolved in favour of the individual: Cabal (at [132]).
40 The statement of the alleged conduct required by s 19(3)(c)(ii) of the Act must be a coherent statement of the acts and omissions sought to constitute the offence. It must not be so vague, general or disorganised that the relevant acts or omissions cannot be reasonably identified: Minister for Home Affairs v Tervonen (2008) 166 FCR 91 (at [94]). The relevant acts or omissions are the elements or ingredients of the offence as distinct from the particular evidence which will be adduced to prove those acts or omissions if there is extradition: Zoeller 23 FCR 282 (at 294).
41 Although strict compliance with the formalities required by the Act is essential (Cabal 186 ALR 188 at [129]), nevertheless, as observed by Gummow J (with whom Sheppard and Burchett JJ generally agreed) in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 (at 519), the inquiry as to whether a proffered statement meets the description of the requirements in s 19(3)(c) presents a matter for practical judgment and assessment, not for overzealousness in discerning deficiencies (see also Zoeller 23 FCR 282 at 294). In the context of practical judgment, even in English speaking countries, different terms may be used to describe conduct and offences. This is even more significant in those countries where the primary language is not English. In Timar v Republic of Hungary [1999] FCA 1518 (at [63]), Weinberg J observed that documents emanating from countries with which Australia has extradition arrangements will often be drafted in a language and style which is very different from our own and perhaps may be less than perfect from our perspective. Nevertheless, the emphasis, on reading such documents, is to do so fairly rather than perversely without every conceivable doubt or possible ambiguity of fact or law no matter how inconsequential being resolved against the country seeking extradition (at [64]).
42 In short, it is no part of the magistrate’s function nor that of the reviewing judge to determine whether an offence was committed in the requesting country. The magistrate must be satisfied that there is a foreign offence proved by the warrant or warrants duly authenticated and a s 19(3)(c)(i) duly authenticated statement in writing setting out a description of them and the penalty applicable in respect of the offence.
43 Although s 19(2) refers to ‘conduct’, the corresponding expression ‘acts or omissions’ appears in s 10 of the Act where it specifies that only one of what may be several alleged acts or omissions will suffice to satisfy the requirements of s 19(2)(c). The ‘acts or omissions’ (that is, the conduct by virtue of which an offence has allegedly been committed), lie ‘at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other’: Truong v The Queen (2004) 223 CLR 122 (at [29] per Gleeson CJ, McHugh and Heydon JJ).
44 The central challenge raised in this appeal is that the question posed pursuant to s 19(2)(c) of the Act should be answered in the negative. The conduct alleged in the supporting documents would not, it is contended, constitute an offenceunder Western Australian law. It is (correctly) accepted by Mr O’Donoghue that it is not a requirement that every proposed charge must satisfy that test. It is sufficient if part only of the conduct alleged would constitute a notional Australian offence (Zoeller at 299 - 300 and United States of America v Holt (1994) 49 FCR 501 (at 504 and see s 10(2) of the Act).
45 What is required in an extradition hearing under s 19 of the Act ‘does not involve a trial on the merits, and the inquiry is as to whether there is, in effect, a case to be answered’: see Vasiljkovic v Commonwealth (2006) 227 CLR 614 (at [23] per Gleeson CJ).
Inferences
46 One of the considerations arising in the material under analysis in the current appeal is the proper approach to be taken in relation to inferences to be drawn from the facts relied upon in the accompanying documents. The decided cases take a similar approach with inferences to the approach in evaluating the factual material. Drawing an inference from the facts in the supporting documents should be based on a fair reading of the materials with regard to the serious consequences attaching to extradition but by applying common sense, that is, an approach which is not overly technical or unduly zealous to detect deficiencies in the materials.
47 In that regard, in Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 (at 190 - 191), reliance on inferences was considered appropriate in respect of charges (amongst others) in respect of misappropriation under the Austrian Penal Code of a motor vehicle and credit cards. There were other charges concerning fraud in respect of computers and programmes. In that case the charge was that items in question were ‘obviously’ subject to a reservation of title. The Full Court said (at 190):
This and the submissions concerning the remaining three counts depended upon the proposition advanced on behalf of Ms Kainhofer that it was not permissible for the magistrate, or the Supreme Court of Queensland on a review of the magistrate's decision, to draw inferences. But the authorities are directly in conflict with this proposition.
48 After considering the obvious difficulty which can often arise in seeking to determine whether facts which constitute an offence under one jurisdiction constitutes an offence under another with a different set of laws, the Court referred to Wiest 23 FCR 472 at 519 where Gummow J, with whom Sheppard J agreed, pointed out that it was sufficient if the terms of a warrant made it clear that the state of mind necessary to constitute an offence existed without the necessity of specifying that state of mind expressly. In Kainhofer, the Court continued (at 191):
In the present case it is charged that the items in question were "obviously" subject to the reservation of title. It can be inferred from the reference to obviousness that Ms Kainhofer also had knowledge that the items in question were subject to a reservation of title, that is to say she had knowledge that the statement, which she admitted was false, was knowingly false.
49 Equally, in relation to the requisite element of the charge under consideration, namely, intent to defraud, the Court concluded that intent could be inferred from the use of the words in the accompanying documents ‘pretending to be solvent’. A similar approach was taken in Zoeller 23 FCR 282 (at 302).
THE JUDGMENT BELOW
50 The Western Australian statutory provisions which relate to the conduct described in the accompanying documents and warrants are s 378 and s 371, respectively, of the Criminal Code (WA) (the Code) which deal with stealing and s 409 of the Code which deals with intent to defraud by deceit or any fraudulent means (false pretences). Those provisions relevantly provide as follows:
Section 378:
Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.
Section 371:
(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.
(2) A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say —
(a) An intent to permanently deprive the owner of the thing or property of it or any part of it;
(b) An intent to permanently deprive any person who has any special property in the thing or property of such special property;
…
(f) In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.
Section 409(1):
Any person who, with intent to defraud, by deceit or any fraudulent means —
(a) obtains property from any person;
(b) induces any person to deliver property to another person;
(c) gains a benefit, pecuniary or otherwise, for any person;
(d) causes a detriment, pecuniary or otherwise, to any person;
(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime and is liable —
…
(h) in any other case, to imprisonment for 7 years.
Section 409(3):
It is immaterial that the accused person intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused.
51 The primary judge was of the view that when one fairly reads the whole of the supporting documents including the warrants, the detailed statement of facts and circumstances relating to the warrants and the conduct complained of in the ‘Allegations: Overview’ section, the material elements or ingredients of the offences stand out plainly without ambiguity. His Honour rejected the contention that the supporting documents were relevantly ambiguous as to whether Property World was Mr O’Donoghue’s business or that of a corporate entity. His Honour concluded (at [92]) that a fair reading of the supporting documents disclosed that Mr O’Donoghue was personally the owner and operator of the business called Property World and there was no question of some corporate entity owning or operating the business.
52 Shortly put, his Honour concluded that leaving aside the one cheque that was used to pay some advertising expenses of Property World, the blunt allegation is that Mr O’Donoghue personally cashed the cheques of Mr Redmond and Mr Henderson and applied the monies received for his own personal use rather than that of the business of Property World (at [93]).
53 The primary judge focussed also on the fact derived from the supporting documents that there was a course of conduct or a series of transactions whereby Mr Redmond was induced to provide cheques to Property World to the knowledge of Mr O’Donoghue in which the cheques were not applied to the intended purpose of securing investment properties but were in fact applied to the personal use of Mr O’Donoghue or for the payment, in one instance, of Property World’s advertising account with a newspaper.
54 His Honour observed (at [101]):
101 No doubt the supporting documents could have addressed in more detail, and more methodically, the acts or omissions, and elements or ingredients of the alleged offences of fraudulent conversion and false pretences relied upon than they do. Nonetheless, when one analyses the supporting documents without an overly critical eye, the following elements or ingredients clearly emerge:
1. The applicant owned and operated a business called Property World.
2. A series of property transactions were proposed to Mr Redmond and Mr Henderson respectively that were not genuine to the knowledge of the applicant.
3. There were a series of transactions which culminated in the applicant receiving a relevant cheque and converting it to his own personal use (or unrelated business use in one case).
4. Employees of the business were acting on behalf of the applicant in the series of transactions which the applicant knew were not genuine.
ANALYSIS OF CONVERSION CHARGES
55 Although in most instances the cheques were not, in the first instance, received directly by Mr O’Donoghue, a fair reading of the descriptions in each instance makes it clear that Mr O’Donoghue did receive the respective cheques either endorsed over to Property World by the client or drawn by the client and payable to Property World. The client gave those cheques to an employee of Property World in each instance or directly to Mr O’Donoghue. There is little doubt on the facts as set out that the clients prescribed a particular purpose in respect of the cheques so given, namely, for the purpose of being used either for a deposit or for other fees in connection with property purchases. Notwithstanding such purpose, in each instance the cheque was presented at the bank by Mr O’Donoghue who cashed the cheque and used the money for his own purposes.
56 The totality of these circumstances leads to an inference that there was a direction given by Mr Redmond to use the funds represented by the cheque in each instance only for Mr Redmond’s property acquisition purposes as distinct from Mr O’Donoghue’s personal purposes or to meet debts of Property World. That direction (within the meaning of s 373 of the Code) meant that the property was deemed to remain the property of Mr Redmond until the direction was fulfilled or complied with. At the heart of the case for Ireland is that the funds in which Property World was placed by Mr Redmond and Mr Henderson were to be used only for the designated property transactions. The Irish practice is that those funds will be held on trust. Although it may be that under the Irish practice and statutory provisions the funds so passed on were to be held on trust, the simple effect of the deeming provision under s 373 of the Code, had the events occurred in Western Australia, is that the property would not pass until the direction had been fulfilled.
Knowledge of the client’s direction
57 At a level of generality, the supporting documents suggest not only that Mr O’Donoghue knew that funds which were supplied were supplied for a particular purpose but also that Mr O’Donoghue knew at all times that the represented property transactions to which the funds were to be applied were not genuine, or in other words, that the funds were obtained by fraud. Dealing only with the direction issue for the moment, Mr O’Donoghue points to the fact that in respect of those dealings which took place only between the clients and employees of Property World, it is not shown that Mr O’Donoghue was aware of any direction from the client, Mr Redmond, if it existed.
58 In those circumstances, Mr O’Donoghue argues that there is nothing to be found in the warrants or the statements of facts which could reasonably be taken as a direction to him personally that the funds be used only for the property purposes discussed in the negotiations between the clients and the employees of the business.
59 However, there is a proper foundation on the supporting documents to infer knowledge of a direction in each instance. There are several reasons for this.
60 First, although not all cheques were handed directly to Mr O’Donoghue, it would be reasonable to infer that in circumstances where he received a customer’s cheque from an employee that the employee would be required as part of his or her duties to explain to Mr O’Donoghue why the cheque was received and how the client wished it to be applied.
61 In the circumstances in which the cheque was given to Property World, having regard to the business of Property World and the name on the cheque, that also would have been indicative that it was being supplied for a particular purpose. Those features would counter any suggestion that Mr O’Donoghue found the cheque ‘sitting in a cheque basket’ as was suggested as another hypothetical possibility or that the cheque may be payment for some other services or a gift. Four of the cheques were expressly made payable to Property World which adds to the inference they were all to be applied to a business purpose and not to Mr O’Donoghue’s personal purpose.
62 In the detailed allegations it is said that Mr O’Donoghue ‘took responsibility for the actions of his employee(s) in obtaining’ the payments. That is a slightly unusual expression in this context but, on a fair reading, it would include familiarising himself with both the making of the representations and also the purpose for which those representations were made. In the laws of this country such an expression might be expected in a civil context rather than a criminal context but it may at least be inferred from its usage and the surrounding facts that Mr O’Donoghue was able to be in a position to take responsibility for the actions of his employees as he was aware of their actions. This usage of the expression gives it some sensible meaning in the context and is in contrast to his simply cashing cheques without knowledge of those actions.
63 Added to this, in para 5.2 of the supporting document, the allegation is made in plain terms, that in respect of each of the property transactions, Mr O’Donoghue was aware the transaction was not genuine. In effect, on a fair reading, it is said that he was aware that each cheque was being obtained by falsely pretending that there was a real sale in contemplation.
64 It is also said that the drawer of the cheque was induced by that pretence. That would negate any suggestion that the cheque was being paid to Mr O’Donoghue as a gift or repayment of a debt owed by Mr Redmond or for fees or for some reason unconnected with property acquisition.
65 There is also (para 5.3), a reference to the obtaining of ‘fiduciary ownership of the monies’. Although this passage appears in the paragraph dealing with the alternative charges of false pretences, Ireland rely on the trust relationship established between Mr Redmond (or Mr Henderson) and Mr O’Donoghue for Property World. The passage in full reads:
If he used any pretence or fraudulent means to obtain the fiduciary ownership of the monies, then an offence of obtaining by false pretences will have been committed.
66 In those circumstances, the presentation of the cheques at the bank and the cashing of the cheques either for his own personal use or, in one instance, for payment of a newspaper account of Property World, go beyond and are inconsistent with the purpose for which the direction was given in each instance by the customers of the business. It follows that the elements of the offence of conversion under s 371 of the Code (taken with the definition under s 370) constitute stealing as provided for in s 378 of the Code.
67 Mr O’Donoghue argued that the facts as disclosed in the warrants and accompanying documents did not eliminate or negate the possibility that there was a defence of mixing of the funds. For example, it was argued that so little was said about the business of Property World that it may well be that there was no requirement to keep separate bank accounts or other accounts to distinguish the personal funds of Mr O’Donoghue, on the one hand, from the funds of the clients of the business on the other. The difficulty with this submission is that there is absolutely no factual basis for a conclusion that would require Ireland to negative or eliminate that prospective defence. The submission cannot be accepted.
ANALYSIS OF FALSE PRETENCES CHARGES
68 The group of charges in warrants I - K, M - O inclusive and L and P all involve charges for contravention of s 32(1) of the Larceny Act.
69 In Western Australia the Code equivalent of such an offence is prescribed in s 409 which in substance provides that any person who, with intent to defraud by deceit or any fraudulent means, obtains property from any person, is guilty of a crime and liable to imprisonment. In essence, Ireland claims that Mr O’Donoghue obtained the property, namely, the cheques from Messrs Redmond and Henderson with the intent to defraud thus contravening s 409(1) of the Code.
70 There are two categories of circumstance which require consideration in relation to the group of charges falling into the false pretences category.
71 In relation to those charges in paras 4.1 - 4.5 inclusive and 4.8, the representations made to Mr Redmond and Mr Henderson were made in each instance not by Mr O’Donoghue himself but by an employee. Mr O’Donoghue, however, is said to have subsequently taken responsibility for that conduct.
72 It is to be noted that in relation to those charges it is not expressly asserted that Mr O’Donoghue directed those representations to be made or authorised the representations to be made. A fair reading of the totality of the material however would suggest that Mr O’Donoghue knew of the falsity of the representations at the time they were made. Without further inference, it might be questioned as to whether this is sufficient to establish the necessary mental element involved for fraud.
73 What can be added to the facts, however, is the inference referred to in each of the Statements filed with the authorised person’s certificate which indicate in each instance that Mr O’Donoghue having used the cash for his own purpose never had any intention of directing it towards the purchase of the properties. That is said to be inferred from Mr O’Donoghue’s ‘previous and subsequent conduct in respect of [Mr] Redmond’.
74 The second additional piece of information is contained in para 5 ‘Allegations: Charges’ where para 5.2 prescribes ‘it is alleged that, in each instance, Vincent O’Donoghue was aware that the property transaction was not genuine, that he was therefore obtaining each cheque by falsely pretending that there was a real sale in contemplation and that the drawer of the cheque was induced by this pretence to give the cheque to Vincent O’Donoghue’. This description, particularly the reference to the inducement, seems to relate to the events at the time representations were made, even if Mr O’Donoghue did not make the representations directly. This has some further support. Ireland states that the charges are mutually exclusive. Paragraph 5.3 in the ‘Allegations: Charges’ raises the alternative mental element in terms which suggest that if the fraudulent element was not present at the time the representations which resulted in the handing over of the money were made, that, nevertheless, Mr O’Donoghue subsequently, in effect, converted the cheque.
75 The knowledge of the falsity of the representations at the time they were made by the employees, without more, would not establish fraud on the part of Mr O’Donoghue. But there is more from which his direct involvement may be inferred. There is the pattern of conduct – most importantly where he was directly involved in the misrepresentations (paras 4.6 – 4.7). There is the fact of cashing the cheques on all occasions rather than applying them to the intended use. There is the fact that he never intended the cheques to be put to the use directed. There is the fact that although he knew of the misrepresentations by the employees and the fact they induced the payment of the cheques, he took no steps to intervene in relation to either of those events. There is no suggestion that the employees were acting criminally so it may, in all these circumstances, reasonably be inferred that they were innocently complying with the directions of Mr O’Donoghue.
76 The totality of the materials, fairly read, would suggest that at or about the time of the representations being made by an employee, Mr O’Donoghue was aware the representations were made, aware of their falsity and aware of their intended and actual effect of obtaining funds. There is no suggestion in the materials that any employee had any fraudulent intention or derived any benefit from the conduct. The question is whether it is reasonable to infer that the actions of the employee were taken at his direction such that the employee was simply his instrument for perpetrating the fraud in each instance. It may be reasonable to infer, given Mr O’Donoghue’s state of knowledge and given the assumed innocence of the employee, that the employee acted only at the direction of Mr O’Donoghue.
77 It cannot be said that knowledge alone of the circumstances would create the criminal element on the part of Mr O’Donoghue. Watching a bank robbery in which one is uninvolved, does not make one a bank robber. If one subsequently receives the funds, a different offence is committed. But in this case, the suggestion on the materials is that were it not for the knowledge of Mr O’Donoghue and the pattern of conduct which occurred on several occasions, taken together with the false representations (innocently) made by the employee at the direction of Mr O’Donoghue, Mr Redmond (and Mr Henderson) would not have been induced to part with his funds. Although (on the materials) Mr O’Donoghue may be regarded as having used the employee as a shield between himself and Mr Redmond (and Mr Henderson) or as an instrument for achieving the fraudulent ends, those ends would not have come about had it not been for the employee acting as directed by Mr O’Donoghue. Such conduct by Mr O’Donoghue would satisfy the description ‘… any fraudulent means …’ in s 409 of the Code: Graham-Helwig v Western Australia (2005) 30 WAR 221 and R v Olan, Hudson & Hartnett [1978] 2 SCR 1175.
78 The position in relation to the facts relied upon in paras 4.6 - 4.7 is straight forward. In those circumstances, Mr O’Donoghue was directly involved in the representations. On the allegations, not only did he know the representations were made but also knew them to be false. That is sufficient to establish the necessary elements for the purposes of s 409 of the Code.
CONCLUSION
79 It follows that this appeal must be dismissed with costs. The orders will be:
1. The appeal be dismissed.
2. The appellant is to pay the costs of the respondents to be taxed if not agreed.
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I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Gilmour and McKerracher. |
Associate:
Dated: 22 December 2009
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Counsel for the Appellant: |
SK Shepherd |
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Counsel for the First Respondent: |
MD Howard |
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Solicitor for the First Respondent: |
Commonwealth Director of Public Prosecutions |
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Date of Hearing: |
11 September 2009 |
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Date of Judgment: |
22 December 2009 |
