Citation: R v Medley (No 1) [2025] NSWDC 499
Court: District Court of New South Wales
Date: 21 May 2025
Judge: Barrow SC DCJ
Background
The appellant operated a debt collection business in New South Wales. Operating such a business requires a Commercial Agents and Private Inquiry Agents licence (a "CAPI licence") issued by NSW Police. The appellant's business had held a CAPI licence from 2008, but that licence expired in October 2013. Despite two rejected renewal applications, and despite receiving explicit advice from NSW Police that the business was not authorised to conduct debt collection without a licence, the business continued to operate.
In December 2015, the appellant signed a Mercantile Agent Agreement with a client referred to as IPF (a payday lender). That agreement required the appellant's business to hold all necessary licences. The appellant accepted in cross-examination that she knew a CAPI licence was required under the agreement. The business continued performing debt collection work for IPF and received commissions of approximately $118,420 during the first period (December 2016 to August 2017) and $100,286 during the second period (August 2017 to March 2018).
The prosecution alleged that by holding out to IPF that the business was licensed when it was not, the appellant dishonestly obtained a financial advantage by deception, contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW). The appellant denied any deception, arguing that representations about the business holding a valid CAPI licence were made without her knowledge and that she had not acted dishonestly.
Legal Issues
- Whether the prosecution proved beyond reasonable doubt that the appellant made, or had knowledge of, deceptive representations to IPF that her business held a valid CAPI licence
- Whether the prosecution proved beyond reasonable doubt that the appellant acted dishonestly in receiving the commission payments
- Whether the Local Court Magistrate's convictions on both sequences were attended by error warranting intervention on appeal
- Whether the proceedings ought to have been diverted under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), given the appellant's mental health condition
Decision
Barrow SC DCJ approached the appeal as a rehearing on the evidence from the Local Court, consistent with the framework established in Lunney v DPP and McNab v DPP. The District Court's power to intervene is enlivened by demonstrated error, whether in fact-finding, identification of the law, application of the law, or the exercise of a discretionary power. The appellate court forms its own view of the facts but gives weight to the Magistrate's assessment of witness credibility, recognising the advantage of having seen and heard the witnesses.
On the substance of the convictions, the District Court was not persuaded that any error had been established. The evidence supported findings that the appellant had knowledge of the CAPI licensing requirement, had signed the client agreement containing the licensing obligation, and was aware the business continued to operate without a licence. The court was satisfied beyond reasonable doubt that the prosecution had proved the elements of each offence for both sequences.
The appellant also sought to have the proceedings dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which allows a court to divert a defendant into mental health treatment rather than proceed with a conviction. The District Court declined that application. While it accepted that aspects of the appellant's life had been difficult, the court found the offending was knowingly dishonest, occurred over a significant period, generated substantial unauthorised financial gain, and was not sufficiently causally linked to any mental health condition. The appellant's mental health conditions had not prevented her from working consistently throughout the relevant period.
Orders Made
- The appellant's conviction appeal is dismissed.
Key Takeaways
- A conviction for dishonestly obtaining a financial advantage by deception under section 192E(1)(b) of the Crimes Act 1900 (NSW) requires proof beyond reasonable doubt of both the deceptive representation and the defendant's knowledge of, and dishonesty in connection with, that representation.
- In dismissing the appeal, the District Court confirmed that the appellate framework from Lunney v DPP and McNab v DPP requires demonstrated error before a Local Court conviction will be overturned; the District Court forms its own view of the facts but is not conducting a purely freestanding review.
- Credibility findings made by a Local Court Magistrate carry weight on appeal, reflecting the Magistrate's advantage in having observed witnesses, but those findings remain open to challenge where they are glaringly improbable or contrary to compelling inferences.
- A section 32 diversion application under the Mental Health (Forensic Provisions) Act 1990 (NSW) will not succeed where the offending was knowingly dishonest, extended over a significant period, and the evidence does not establish a sufficient causal link between the defendant's mental health condition and the conduct.
- Prior rejection of CAPI licence applications, coupled with explicit regulatory advice that the business was not authorised to operate, were significant factual circumstances in establishing the appellant's knowledge for the purposes of the deception charges.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18, Pt 3 Div 1
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Cases
- Bazouni v R [2021] NSWCCA 856
- Liberato v The Queen (1985) 159 CLR 507
- Lunney v DPP [2021] NSWCA 186
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- R v Wong [2022] NSWDC 257