Citation: R v L Schneider & J Pydde [2012] NSWDC 169
Court: District Court of New South Wales
Date: 8 June 2012
Judge: S Norrish QC DCJ
Background
Two accused were charged with dishonestly obtaining a valuable thing by deception under the now-repealed s 178BA of the Crimes Act 1900 (NSW). The charge arose from events between February and May 2006 in Coffs Harbour and elsewhere in New South Wales. The valuable thing alleged was a bank cheque for $140,000 belonging to the complainant, an elderly woman referred to throughout as Mrs McKercher.
The Crown alleged that the accused made a series of false or reckless representations to Mrs McKercher relating to their ability to assist her in obtaining finance, how her money would be dealt with, and the investment return she would receive. On 1 May 2006, she handed over a $140,000 bank cheque. The Crown alleged the two accused acted together as part of a joint criminal enterprise, with one accused receiving the cheque in furtherance of their shared arrangement.
The trial proceeded before a judge alone, pursuant to ss 132 and 133 of the Criminal Procedure Act 1986 (NSW), at the election of the accused and with the Crown's consent.
Legal Issues
- Whether each accused, by deception (intentional or reckless), dishonestly obtained the $140,000 bank cheque from Mrs McKercher
- Whether the deceptions alleged were actually made or practised on or before 1 May 2006
- Whether the accused were acting dishonestly at the time of the obtaining, assessed against the ordinary standards of decent members of the community
- Whether a joint criminal enterprise existed between the two accused, and whether each participated in it
- What inferences, if any, could be drawn from the accused's conduct before and after 1 May 2006 in circumstances where neither accused gave evidence
Decision
His Honour identified the key factual issue as whether the accused acted dishonestly, in furtherance of a joint criminal enterprise, by making deliberate or reckless deceptions that induced Mrs McKercher to hand over the cheque. The Crown case relied heavily on inferences drawn from the conduct of both accused before and after 1 May 2006, along with the representations they allegedly made.
The court found that the Crown had not proved beyond reasonable doubt that the alleged deceptions were made or practised. Nor did the evidence establish that the accused were acting dishonestly at the relevant time of the obtaining. His Honour noted that while the Crown led post-May 2006 conduct as corroborating evidence of earlier dishonest intent, that evidence was insufficient to satisfy the required standard of proof.
His Honour observed that Mrs McKercher's credibility and reliability as a witness was a significant factor. He noted she had access to documents at home and had refreshed her memory before giving evidence, but her attention to detail did not extend to reliable recollection of the critical events of 1 May 2006. Conflicting evidence about documents, their dating, and the circumstances of their execution further undermined the prosecution's case.
The court expressed genuine sympathy for Mrs McKercher, who lost $140,000 and suffered additional financial losses. However, his Honour was explicit that sympathy for a complainant, or the existence of questionable commercial conduct, cannot substitute for proof of criminal guilt beyond reasonable doubt. The verdicts of not guilty were entered in respect of both accused.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court confirmed that sympathy for a complainant, even one who has suffered significant financial loss, cannot displace the prosecution's obligation to prove each element of an offence beyond reasonable doubt.
- Under s 178BA of the Crimes Act 1900 (NSW) (now repealed), a conviction for dishonestly obtaining a valuable thing by deception required proof both that a deception was practised and that the accused acted dishonestly at the time of the obtaining, assessed by reference to the standards of ordinary decent members of the community.
- A joint criminal enterprise can be established by inference from circumstances, without any express agreement, provided the inference is rational and reasonable on the evidence accepted by the fact-finder.
- In a judge-alone trial under the Criminal Procedure Act 1986, the trial judge must expose the full reasoning process supporting findings of fact and the ultimate verdict, not merely state bare legal principles and conclusions (following Fleming v The Queen (1998) 197 CLR 250).
- Where neither accused gave evidence, no adverse inference of guilt arose from their silence, and the Crown's case still had to stand on its own evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA (now repealed)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
Cases:
- Fleming v The Queen (1998) 197 CLR 250