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District Court 21 August 2009

R v Damon Charles Miller

[2009] NSWDC 331

Fraud & dishonesty
FRAUD JUDGE ALONE TRIAL DIRECTIONS DECEPTION REPRESENTATION AS A SOLICITOR POWER OF ATTORNEY

Citation: R v Damon Charles Miller [2009] NSWDC 331
Court: District Court of New South Wales
Date: 21 August 2009
Judge(s): Knox SC DCJ

Background

The accused was introduced in August 2002 to an elderly widower, referred to here as the complainant, who was seeking legal assistance with family law and immigration matters following the death of his wife. The accused held himself out as a solicitor, operated under a letterhead reading "Miller and Associates, Solicitors, Conveyancers and Agents," and had the complainant sign a broadly drafted power of attorney. The accused had never been a solicitor.

Using that power of attorney and correspondence on his firm's letterhead, the accused contacted a superannuation fund and several share registries on the complainant's behalf. A superannuation cheque of approximately $39,633 was issued and shares worth approximately $13,358 were sold.

The complainant said he received none of those proceeds. The accused contested this, claiming he had delivered the superannuation funds to the complainant in cash over time. The Crown alleged the accused had obtained the funds for himself, including by forging the complainant's signature to endorse the superannuation cheque.

  • Whether the accused dishonestly obtained a valuable thing (the superannuation cheque) by deception under s 178BA of the Crimes Act 1900
  • Whether the accused published false and misleading statements, knowing them to be false, with intent to obtain a financial advantage, by representing that he or his firm were solicitors under s 178BB of the Crimes Act 1900
  • Whether the accused dishonestly obtained a financial advantage by deceiving a stockbroking firm into depositing share sale proceeds into his account under s 178BA
  • Whether the accused used a false instrument, namely the superannuation cheque bearing a forged endorsement, with intent to prejudice the complainant under s 300(2) of the Crimes Act 1900
  • Whether a stay of proceedings was warranted on account of allegedly lost documentary evidence and police conduct

Decision

The trial was conducted before a judge alone, following an election by the accused made with the consent of the Director of Public Prosecutions and after the accused had received advice from his barrister. A pre-trial stay application, based on the alleged loss of documents that would have supported the accused's case, was dismissed.

On Count 1 (dishonestly obtaining the superannuation cheque by deception), the court was not satisfied beyond reasonable doubt that the accused had obtained the cheque by a deception that he was acting pursuant to the power of attorney. The accused was acquitted on this count.

On Counts 2, 4, and 5 (publishing false and misleading statements with intent to obtain a financial advantage), the court found the accused had made knowing misrepresentations to the superannuation fund that he or his firm were solicitors, and that those misrepresentations were material to the fund's decision-making. The elements of each offence were established beyond reasonable doubt, and the accused was convicted on all three counts.

On Count 3 (dishonestly obtaining a financial advantage from the share sale proceeds), the court found the accused deceived the stockbrokers into depositing proceeds into his own account by falsely representing he was authorised to realise the complainant's shares. On Count 6 (use of a false instrument), the court found the accused endorsed the superannuation cheque with a forged signature of the complainant, knowing it was false, to induce a third party to accept the cheque as genuine and have it cashed in a way that funnelled the proceeds to the accused rather than the complainant. The accused was convicted on both counts.

Orders Made

  • Count 1: Acquitted
  • Count 2: Guilty and convicted
  • Count 3: Guilty and convicted
  • Count 4: Guilty and convicted
  • Count 5: Guilty and convicted
  • Count 6: Guilty and convicted

Key Takeaways

  • The District Court found that publishing a statement falsely representing oneself or one's firm as solicitors, with the intention of obtaining a financial advantage, satisfies the elements of the offence under s 178BB of the Crimes Act 1900, provided the maker knows the statement to be false and the misrepresentation is material.
  • Acquittal on one count of obtaining by deception did not preclude conviction on related counts arising from the same course of conduct, where each count required proof of distinct elements and the evidence on each count was assessed separately.
  • A broadly drafted power of attorney, signed by a complainant without being informed of its nature, does not immunise an accused from fraud liability where the accused uses that instrument in conjunction with false representations to obtain financial benefits.
  • Forging a complainant's signature on a cheque and using that cheque to have proceeds deposited into the accused's own account constitutes use of a false instrument within the meaning of s 300(2) of the Crimes Act 1900, even where the accused initially obtained the cheque in a different context.
  • The stay application based on lost documentary evidence and police conduct was dismissed, reflecting that the loss of potentially exculpatory material does not automatically justify a stay of criminal proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 178BB, 300(2)
- Criminal Procedure Act 1986 (NSW), s 132
- District Court Rules 1973 (NSW)

Cases:
- Fleming v R (1998) 197 CLR 250
- Peters v R (1991) 92 CLR 493
- R v Hamilton (1991) 92 Cr App R 54
- R v Love (1989) 18 NSWLR 608
- R v Minani [2005] NSWCCA 226
- R v Perry (1993) 29 NSWLR 589
- R v Simmonds (VIC CCA, 29/10/92, unreported)