Zoneff v The Queen [2000] HCA 28

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, GUMMOW, KIRBY AND CALLINAN JJ

IVAN ZONEFF APPELLANT

AND

THE QUEEN RESPONDENT

Zoneff v The Queen [2000] HCA 28

Date of Order: 7 March 2000

Date of Publication of Reasons: 25 May 2000

A23/1999

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of South Australia made on 1 December 1998 and in place thereof order that:

i) the appeal to that Court be allowed;

ii) the convictions on counts 2-7 in the Information be quashed; and

iii) there be a retrial.

On appeal from the Supreme Court of South Australia

Representation:

T A Gray QC with G J S Mancini for the appellant (instructed by George Mancini & Co)

W J Abraham QC with S McDonald for the respondent (instructed by Director of Public Prosecutions (South Australia))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Zoneff v The Queen

Criminal Law – Lies – Whether going to credibility or indicating guilt – Direction to jury – Proviso – Circumstances for application in strong Crown case.

Words and phrases – "consciousness of guilt".

1. GLEESON CJ, GAUDRON, GUMMOW AND CALLINAN JJ. This case is concerned with the correctness of a direction given by a judge of the District Court of South Australia in a criminal trial with respect to evidence of the appellant in his trial which the jury could have inferred to be false.

The Trial

1. The appellant was tried in the District Court on an information containing seven counts, four of which charged him with false pretences and three with fraudulent conversion. The jury returned a verdict of not guilty on the first count and found him guilty of the other six. The first charge was an alternative charge to one of fraudulent conversion. 2. The prosecution case was that the appellant took advantage of five people. One of them, Ms Sneath, had been referred to in the first and second counts. The other four were Mr McKinnon, Mr and Mrs Dik and Ms Phillips. All met the appellant when they went to purchase furniture from the Le Cornu Furniture Centre where he worked as a salesperson. The prosecution alleged that the appellant ingratiated himself with these people in order to obtain money from them by false pretences. 3. Ms Sneath and Mr McKinnon said that the appellant persuaded them to pay the amount outstanding on their purchases to him, so that they could obtain the benefit of bonus points to which he was entitled as part of his conditions of employment with Le Cornu. The appellant said that an additional discount of $720 would be available if they were to send the money they owed Le Cornu directly to him. Ms Sneath's and Mr McKinnon's evidence was that they agreed to the appellant's proposal, believing that he was acting in his capacity as an employee of Le Cornu and that he had authority to do what he claimed. Ms Sneath said that she paid $4,068 into the appellant's account with a building society, being the amount she and Mr McKinnon owed Le Cornu, less the discount the appellant had offered them. The evidence also established that the $4,068 deposited by Ms Sneath in the appellant's account was used by him to pay his personal debts. 4. The other five charges were not alleged in the alternative. Mr and Mrs Dik were the victims of four of these. After they visited Le Cornu in June 1992 to buy furniture for a house they were building the appellant kept in contact with them. He told them of a substantial discount he could obtain if they paid their money directly to him. Their evidence was that they agreed with this suggestion and that, in the course of his telephone conversations with them, he also suggested that the three enter into a business venture to build two home units as an investment. An arrangement was accordingly made. Mr and Mrs Dik went with the appellant to inspect land at Brooklyn Park which was to be the site of the units. Mr and Mrs Dik then borrowed $84,000 on the security of their own home. Part of the loan was used to extinguish an existing mortgage. Their evidence was that the balance was used to pay half the cost of the land and the cost of the foundations for the units. Two of the cheques were the subject of the fraudulent conversion charges on the third and fourth counts. The evidence disclosed that again the appellant used the money for his own purposes to satisfy some personal debts. 5. The fifth and sixth counts were charges of false pretences. The evidence was that after Mr and Mrs Dik had given the appellant the funds referred to in the third and fourth counts for the land and foundations, there were discussions about the building plans, in the course of which the appellant told them of problems he was having in relation to his finances: that one of his bank accounts had been frozen because of some other financial difficulties, and that this was preventing him from obtaining access to his half of the money required for their joint venture. The prosecution evidence was that the appellant sought and obtained from Mr and Mrs Dik a further $16,600 to enable him to gain access to this bank account. The appellant again spoke to Mr and Mrs Dik of continuing difficulties with his account. He sought and obtained a further sum of $6,440 from them. This was the amount referred to in the sixth count. There was evidence at the trial that the appellant had no bank account at the bank that he identified as his bank. There was a further false pretence alleged, that until funds were released to him the appellant would be unable to continue with the plan to build the units. 6. The remaining count in the information named Ms Phillips as the victim. She first met the appellant at Le Cornu in 1993. She decided to buy furniture worth some $7,700. Her evidence was that the appellant raised with her the possibility of a discount by allowing her access to his entitlements to bonus points as an employee of Le Cornu. Ms Phillips was reluctant to agree. The appellant said that she could receive a discount of $720 on the basis of his entitlements. The points to which he was entitled were in fact worth no more than about $42 and not anything like $720. Ms Phillips gave the appellant a cheque for $5,210 in response to his representations to her. Subsequently the appellant asked Ms Phillips to lend him some money. The jury was told that Ms Phillips then lent the appellant a substantial sum on the promise of high interest, but that she had not been repaid any of it. This last transaction was not the subject of any charge. 7. In evidence at the trial at which he represented himself, the appellant denied any false pretence. He claimed that the complainants were aware of the personal purpose to which their money was to be applied. He insisted that he had no intention of fraudulently denying to them the benefit of the money they provided to him. Throughout, he maintained, he held a bona fide belief that he was entitled to deal with the money in the way in which he did. In the cases of Ms Sneath, Mr McKinnon and Ms Phillips, the cheques they gave him, were, he swore, to be applied to assist with the settlement of a contract for the purchase of units by the appellant from his father. As compensation for the making of the loan of their money he intended to provide them with a discount on their purchases at Le Cornu and to assume liability for the balance of their accounts. The appellant emphasised that these people did not require their furniture immediately, so that by lending money, they would obtain furniture, when required, at a reduced price. 8. As for Mr and Mrs Dik, he accepted that they had entered into a partnership with him to purchase land at Brooklyn Park and to build units upon it. But he said that the money they gave him was also to be used to purchase units from his father. 9. The appellant conducted his own defence at the trial. The Crown Prosecutor's cross-examination of him included the following: