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Supreme Court 21 December 2007

DPP v Logan-Pye and 2 Ors

[2007] NSWSC 1492

Fraud & dishonesty

Citation: DPP v Logan-Pye and 2 Ors [2007] NSWSC 1492
Court: Supreme Court of New South Wales, Common Law Division
Date: 21 December 2007
Judge(s): Smart AJ

Background

Two police officers employed at a Lake Macquarie Police Citizens Youth Club (PCYC) and an employee of Rebel Sport were charged following alleged fraudulent dealings with the Club's account at Rebel Sport. The prosecution's case was that the three defendants acted in a joint criminal enterprise to obtain a cheque of $609.46, of which $247.04 was for goods (heart rate monitors) that were never purchased for or received by the Club. Nike shoes were allegedly received personally by the two officers instead.

A Rebel Sport invoice dated 28 April 2005 was alleged to be false, and a subsequent amended version of that invoice was also said to have been created and used. The charges against the defendants included dishonestly obtaining a valuable thing by deception under s 178BA(1) of the Crimes Act 1900 (NSW), making a false instrument under s 299(2), and using a false instrument under s 300 of the same Act.

The Local Court at Newcastle dismissed charges against all three defendants. The Director of Public Prosecutions appealed to the Supreme Court, seeking declarations on the correct construction of the relevant provisions and orders remitting proceedings to the Local Court.

  • Whether the Local Court correctly construed and applied s 178BA(1) of the Crimes Act 1900 (NSW) in dismissing the deception charges against all three defendants
  • Whether the Local Court correctly construed and applied ss 299(2) and 300 of the Crimes Act in dismissing the false instrument charges
  • Whether the charges as framed by the prosecution could succeed as a matter of law
  • Whether some dismissals were nonetheless correct on grounds other than those relied upon by the Local Court (raised by the defendants by notices of contention)
  • Whether the DPP required leave to appeal, and if so whether leave should be granted

Decision

Smart AJ refused to grant the declarations the DPP sought as to the correct construction of ss 178BA(1) and 299(2)(d). The court dismissed the DPP's appeal against the dismissal of all three s 178BA(1) charges, concluding that the charges as framed were misconceived and could not succeed. The prosecution's framing of the joint enterprise deception charge was found to be deficient.

On the false instrument charges, the outcomes were mixed. The appeal against the dismissal of the "use" charge (Sequence 3) against the first defendant (Logan-Pye) was allowed, and that matter was remitted to the Local Court for rehearing. Similarly, the "make" charge (Sequence 2) against the third defendant (Tweed) was set aside and remitted. The Local Court had erred in its construction of the relevant provisions in dismissing those charges.

However, the appeal against dismissal of the "use" charge against the second defendant (Plunkett) was dismissed. The appeals against the dismissal of the "make" and "use" charges against Tweed relating to the later amended invoice (Sequences 3 and 5) were also dismissed, upheld on grounds other than those relied upon by the Local Court.

The judgment emphasised that errors by the Local Court in construing the false instrument provisions did not automatically result in the appeals succeeding. In some instances, the defendants' notices of contention provided alternative grounds on which the dismissals were properly upheld, and the court was alert to the need for the prosecution case to be correctly framed from the outset.

Orders Made

  • Declarations sought by the DPP refused in each proceeding
  • DPP's appeal against dismissal of s 178BA(1) charges dismissed in each proceeding
  • In proceedings against Logan-Pye: Local Court's dismissal of Charge/Sequence 3 (using a false instrument, Rebel invoice 28/4/05) set aside; matter remitted to Local Court Newcastle to be heard according to law
  • In proceedings against Plunkett: DPP's appeal against dismissal of Charge/Sequence 4 (using a false instrument, updated Rebel invoice) dismissed
  • In proceedings against Tweed: Local Court's dismissal of Charge/Sequence 2 (making a false instrument, Rebel Sports invoice 28/4/05) set aside; matter remitted to Local Court Newcastle to be heard according to law
  • In proceedings against Tweed: DPP's appeal against dismissal of Charges/Sequences 3 and 5 (making and using the updated Rebel invoice) dismissed
  • Parties directed to bring in Short Minutes of Order; costs reserved with provisional view of no costs order; matter listed for 1 February 2008

Key Takeaways

  • The charges under s 178BA(1) of the Crimes Act 1900 (NSW) were dismissed on appeal because the prosecution had framed them in a way that could not succeed as a matter of law, regardless of the Local Court's own errors of construction.
  • Errors by a lower court in construing criminal provisions do not automatically lead to an appellate court allowing the prosecution's appeal; if defendants establish by notice of contention that dismissal was correct on other grounds, the outcome may stand.
  • Under ss 299(2) and 300 of the Crimes Act 1900 (NSW), the correct construction of "making" and "using" a false instrument matters significantly to whether charges are properly maintainable, and the Local Court fell into error on some of those charges.
  • A joint criminal enterprise framing of a deception charge carries its own requirements, and failure to correctly articulate the basis of the alleged common purpose and the valuable thing obtained can be fatal to the charge.
  • In mixed appeals of this kind, some remittals and some dismissals can result from the same judgment, depending on the specific charge, instrument, and defendant involved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA(1), 299(2), 300
- Crimes (Appeal and Review) Act 2001
- Criminal Appeal Act 1912
- Supreme Court Rules 1970
- Justices Act
- English Theft Act
- Forgery and Counterfeiting Act 1981 (UK)
- Crimes Act 1958 (Vic)

Cases:
- Brott v The Queen (1992) 173 CLR 426
- DPP v Leonard (2000) 53 NSWLR 227
- R v Bozatsis & Anor (1997) 97 A Crim R 296
- R v Ceylan (2002) 4 VR 208
- R v Charles [1977] AC 177
- R v Kovacs [1974] 1 WLR 370
- R v More
- R v O'Hare (2002) 155 A Crim R 82