New South Wales District Court CITATION: R v NAIME [2008] NSWDC 193 HEARING DATE(S): 2 November 2007 JURISDICTION: Crime JUDGMENT OF: Murrell SC DCJ CATCHWORDS: CRIMINAL LAW - false pretences and other frauds and impositions - obtaining by deception and making a false statement LEGISLATION CITED: Crimes Act 1900 ss 178 BA, 178 BB PARTIES: Regina Mary NAIME FILE NUMBER(S): 2006/21/1063; 2006/00013638 SOLICITORS: Crown: M Cinque Defence: M Grew JUDGMENT Overview 1 The accused was employed as a bookkeeper by Landilo Staircases Pty Ltd (Landilo), which was owned by her brother, Joe Sukkar. On 29 May 2002, the accused set up a second business account for Landilo (count 1). 2 Between May 2002 and May 2003, monies were moved between Landilo's primary business account (Account 1), the second account (Account 2), and personal accounts of the accused and/or her husband, Michael Naime (counts 2 - 20). These related account transfers were effected by cheque deposit and/or telephone transfer. They created a credit balance in Account 1 that was falsely inflated for one working day. The transactions concealed the real position, which was that, on 1 November 2002, Account 1 became overdrawn, and it remained overdrawn until May 2003. The Crown alleged that the accused was a gambler and the cheque/telephone transfers were probably motivated by her gambling. 3 The Crown alleged that, on other occasions, the accused used a keycard to withdraw company monies from Account 1 at a St Marys Leagues Club ATM, probably for the purpose of gambling. 4 The accused said that, on the occasions when she did effect cheque/telephone transfers or make ATM withdrawals, she did so at the direction of Mr Sukkar. She did not intend to gain any financial advantage. Insofar as she retained monies, she gained no financial advantage because the monies represented the payment of wages or the repayment of loans which Mr Sukkar or Llandilo owed to her and her husband. The Charges 5 On 5 September 2007, the accused elected to be tried by judge alone, and the DPP consented. I was satisfied that, before making the election, the accused had sought and received advice from her barrister, Mr Stanton. 6 The accused was charged with one offence against s.178BB (count 1) and 19 offences against section 178BA of the Crimes Act 1900, ie: (1) 29 May 2002 at Riverstone - make false statement with intent to obtain a financial advantage for herself, ie a sole signatory account in the name of Llandilo (Account 2); (2) 29 August 2002 at Llandilo - dishonestly obtain for herself a financial advantage, ie credit of $1,500 to her joint account (cheque to Account 6570); (3) on or about 9 October 2002 at Llandilo -- dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $7,200 to their joint account (cheque to Account 6570); (4) 5 December 2002 at Llandilo - dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $22,000 to their joint account (telephone transfer); (5) 12 December 2000 at Llandilo - dishonestly obtain for herself and Michael Name a financial advantage, ie credit of $20,000 to their joint account (telephone transfer); (6) 5 January 2003 at St Marys - dishonestly obtain for herself $450 (ATM withdrawal); (7) 30 January 2003 at St Marys - dishonestly obtain for herself $800 (ATM withdrawal); (8) 11 March 2002 at Llandilo - dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $19,350 to their joint account (telephone transfer); (9) 2 April 2003 at St Marys - dishonestly obtain for herself $300 (ATM withdrawal); (10) 8 April 2003 at St Marys - dishonestly obtain for herself $800 (ATM withdrawal); (11) 24 April 2003 at Llandilo - dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $32,250 to their joint account (telephone transfer); (12) 28 April 2003 at Llandilo - dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $35,750 to their joint account (telephone transfer); (13) 1 May 2003 at Llandilo - dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $36,100 to their joint account (telephone transfer); (14) 2 May 2003 at Llandilo - dishonestly obtain for herself a financial advantage, ie credit of $2,500 to her account (cheque to Account 7055); (15) 2 May 2003 at Llandilo - dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $49,100 to their joint account (telephone transfer); (16) 5 May 2003 at Llandilo - dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $46,100 to their joint account (telephone transfer); (17) 7 May 2003 at Llandilo - dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $18,200 to their joint account (telephone transfer); (18) 8 May 2003 at Llandilo - dishonestly obtain for herself a financial advantage, ie credit of $4,500 to her account (cheque to Account 7055); (19) 12 May 2003 at St Marys - dishonestly obtain for herself $800 (ATM withdrawal); and (20) 20 May 2003 at Llandilo - dishonestly obtain for herself and Michael Naime a financial advantage, ie credit of $66,150 to their joint account (telephone transfer). 7. Each of the telephone transfers involved a transfer of money into Account 0354, a cheque account in the joint names of the accused and her husband, using telephone number 47775233 (5233). 8. I set out the principles of law which I have applied and the findings of fact which I have made for the purpose of arriving at verdicts. Separate charges 9. The twenty charges upon which the accused was tried were heard together as a matter of convenience. I have considered each charge separately and I return a separate verdict on each charge. Onus and Standard of Proof 10. The Crown must prove the accused's guilt beyond reasonable doubt. The accused is presumed to be innocent of each charge unless and until the Crown proves her guilty of the charge beyond reasonable doubt. To attain such proof, the Crown must proove each legal element of the relevant offence beyond reasonable doubt. 11. If there is a reasonable doubt about the Crown case on any charge, then that doubt must be taken into account when assessing the Crown case on any other charge. Circumstantial evidence 12. The Crown case on the counts involving the telephone transfer of funds from Account 1 was circumstantial. There was no direct evidence that the accused effected the particular transfers. Therefore, the Crown's task was to proove that, based on the established circumstances, the only available rational inference is that the relevant telephone transfer was undertaken by the accused. The Section 178BB Offence 13. The elements of the offence against section 178BB of the Crimes Act 1900 (count 1) are that: (1) the accused made a written statement (in Exhibit F - that she was the sole proprietor of Llandilo); (2) which she knew to be false in a material particular (she knew that she was not the sole proprietor of Llandilo); (3) with intent to obtain a financial advantage for herself (a Llandilo account for which she was the sole signatory). 14. There was no dispute that the accused signed, and therefore "made", a written statement that she was the sole proprietor of Llandilo (Exhibit F). Nor was it disputed that, if the accused's purpose was to set up an account which she could use to transfer funds for her financial advantage, then she made the statement with intent to obtain a financial advantage. 15. The real issues are whether the accused knew the statement to be false (or may have carelessly signed Exhibit F without reading it) and whether, at that time, she intended to obtain the financial advantage of having a sole signatory Llandilo account which she could use to transfer funds for her financial advantage (or may have set it up on Mr Sukkar's instructions and/or for his purposes). The Section 178BA Offences 16. The elements of each offence against section 178BA (counts 2 to 20) are that: (1) the accused obtained money or a financial advantage (credit) for herself /her husband; (2) she did so dishonestly; and (3) she did so by a deception. "Deception" is defined in s178BA to mean: "any deception (whether deliberate or reckless) by words or conduct as to fact or as to law ..." In each case, the Crown relied on a deliberate deception. 17. Counts 2 and 3 predate 1 November 2002, the date when, but for related account transfers, Account 1 would have become overdrawn (Exhibit V, tab B). In relation to counts 2 and 3, the Crown said that Mr Sukkar/Llandilo were deceived in that the accused used her position to draw company cheques for her own unauthorised purposes. 18. Counts 4 to 20 postdate 1 November 2002. In relation to counts 4 to 20, the Crown said that the Commonwealth Bank of Australia (CBA) was deceived because the accused deliberately created related account transfers to give a falsely inflated balance in Account 1 ("kite flying"). Because of the falsely inflated balance, the Bank allowed Account 1 to be debited and the accused to obtain money by ATM withdrawals, and allowed the accused to credit her account by telephone transfer. Whether the accused actually drew against the credit is immaterial. 19. There is no doubt that, if the accused did perpetrate deliberate deceptions in the manner alleged by the Crown, then her conduct was dishonest by the standards of ordinary, reasonable people. Ordinary, reasonable people consider that it is dishonest for an employee to make an unauthorised withdrawal from her employer's account for personal use. They consider that it is dishonest to deliberately move monies between accounts so as to artificially inflate the apparent credit balance in one account, thereby enabling funds to be transferred or credited to other accounts, particularly if the scheme causes the first account to become increasingly overdrawn in real terms. 20. In relation to counts 2 and 3, the critical issue is whether the monies may have been paid with Mr Sukkar's express or implied authority as they were wages to which the accused or her husband was entitled. If the monies were paid with Mr Sukkar's authority, then he was not deceived. 21. As to counts 4 to 20, the accused said that transactions of that type were done on Mr Sukkar's instructions and for his purposes (rather than her own), and she merely acted on his instructions. If so, the accused did not deliberately deceive the CBA. There is a dispute as to whether the accused made any illegitimate financial gain (or whether monies may have been given to Mr Sukkar as cash, or received by the accused as the payment of wages or the repayment of loans). This matter is critical to element 1, the receipt of financial advantage. The question of whether the accused may have been entitled to the monies which she received is also relevant to the issues of dishonesty and whether the accused deliberately deceived the CBA because, if the accused was entitled to the monies, it is more likely that Mr Sukkar instructed her to act as she did. 22. In relation to the counts involving a telephone transfer (particularly counts 4 and 8), there is an issue as to whether the only available rational inference is that it was the accused who effected the transfers. It is necessary to consider whether Mr Sukkar or someone else other than the accused may have effected the transfers. Accused's Character 23. The accused is a person of prior good character. I have taken her good character into account when assessing her credibility as a witness (it may be that a person of prior good character is more likely to be truthful) and on the question of her guilt (it may be that a person of prior good character is less likely to have conducted herself dishonestly). Assessment of the Main Witnesses 24. Documents were central to the Crown case. 25. Mr Sukkar's evidence was important because he refuted the accused's assertion that he directed or authorised transactions and her evidence about monies which he owed to her. 26. Mr Sukkar is a volatile individual who believes that he was greatly wronged. Without properly considering questions, he gave answers that were unresponsive or overstated his position. For example, his statement that he never entered the accused's office defies common sense. His initial evidence that he had received nothing for the sale of his share of the Llandilo property to the accused and her husband was probably incorrect. Similarly, he did not recall obtaining a $30,000 business overdraft, although he recalled that an earlier request for an overdraft was refused. In my view, such statements were not conscious lies. Rather, they were unthinking reflections of Mr Sukkar's strong sense of injustice at the hands of his sister, and/or a subconscious attempt to distance himself from the chaos of the business finances, and/or connected with Mr Sukkar's "breakdown" and associated depression, stress and panic attacks. His recollection may have been clouded by those conditions. He was an honest witness, but he was not always reliable. 27. The accused noted that, in 2002, WorkCover sought reimbursement of $118,347 from Llandilo. She suggested that the claim placed Llandilo under enormous financial pressure, and may have motivated Mr Sukkar to undertake the related account transfers the subject of the proceedings. However, Mr Fogarty's evidence showed that, in 2002, Llandilo was busy and had a significant turnover. 28. Mr Sukkar is a person of very limited resources, who would have been quite incapable of orchestrating the related account transfers in question. I have no doubt that Mr Sukkar was telling the truth when he said that "kite flying" transactions (both cheque and telephone transfers) were undertaken without his knowledge or consent. Witnesses gave evidence of Mr Sukkar's shock at learning of the transactions. Further, Mr Sukkar's credit was supported by his immediate complaint to police. 29. Although it contained at least one error (as to the date of a conversation with the accused), Mr Ali's evidence was generally convincing because he was a relatively independant witness whose evidence was based on detailed contemporaneous notes. 30. Ms Picco, the lessee of the Llandilo Australia Post Office, where the accused did banking, had a clear and relatively detailed memory of interaction with the accused (see paras 86 – 94 below). Her recall of dates was poor, but Ms Picco had an otherwise excellent recall. She provided details such as the accused's reference to her father's illness, which added credence to her testimony. It was suggested that Ms Picco had a motive to lie, ie to excuse her breaches of Australia Post protocol. Ms Picco convincingly dismissed that suggestion. She was a forthright, honest and reliable witness whose evidence was compelling. It showed the accused to be determined and manipulative. 31. The accused was not obliged to give evidence, but chose to do so. I took into account her prior good character and otherwise assessed her evidence in the same way as I assessed the evidence of the other witnesses. She attempted to portray herself as bound to her brother by strong affection, despite his overbearing manner. She asserted that all significant decisions regarding business administration and finances were made by Mr Sukkar. She said that, although she was the bookkeeper, she took no initiative and merely followed his directions. In my view, important aspects of her evidence must be disbelieved. For example, she denied the incriminating statements and conduct of which Ms Picco gave evidence. Despite the frequency of her attendance at registered clubs and the late hours to which she gambled, she denied any gambling problem or associated financial loss. The accused is both clever and devious. 32. The evidence of Mr Naime was unnaturally similar to that of his wife. His confident assertion that he was a successful gambler was not credible. Mr Naime's propensity to gamble, his potential financial advantage from the accused's alleged conduct, and his relationship to the accused were relevant to the assessment of his credibility as a witness. Neither the accused nor Mr Sukkar suggested that Mr Naime possessed the information or documents which would have enabled him to undertake any relevant banking transaction. One cannot say what, if anything, he knew of the accused's activities, but he appeared to be not unintelligent. He was not a reliable witness. 33. Inherently unlikely as her evidence seemed, Ms Rosemarie Naime presented as an honest witness. Her evidence was corroborated by evidence from the supervisor at the restaurant where she worked. Background 34. Mr Sukkar is a carpenter. In 1995, he started his own carpentry and joinery business, manufacturing staircases. He had a rudimentary accounting system. 35. In March 1996, the accused, her husband and Mr Sukkar bought a property at 59a Fourth Avenue, Llandilo. The improvements on the property comprised a house at the front of the property, a granny flat and a large shed. The accused and her husband lived in the house on the property. 36. Mr Sukkar converted the shed into a factory/workshop. From late 1996, he operated his business from the factory/workshop. A portable structure was acquired and fitted out as an office. Business records, including cheque books, were kept in the office. 37. Mr Sukkar began to employ the accused as a part-time bookkeeper and Michael Naime as a staircase installer. 38. On 11 September 1996, the business was incorporated as Llandilo Staircases Pty Ltd (Llandilo). Mr Sukkar was the sole shareholder and director of Llandilo. 39. The accused worked from the office. Mr Sukkar had a desk and telephone in the factory area. Despite Mr Sukkar's statement that he never entered the office, he must have done so. It is contrary to common sense that he would never have entered the on site office from which his business affairs were administered. In this regard, his evidence reflected a subconscious attempt to distance himself from Llandilo's financial administration. 40. Llandilo's telephone number 5233 was connected in the office. I accept Mr Sukkar's evidence that, out of business hours, the line was available for use by the accused and her husband. Mr Woods (a former Llandilo employee who was called in the accused's case and who was a careful and apparently reliable witness) confirmed that there was a telephone connexion in a bedroom of the residence. Mr Sukkar produced an account for telephone number 5233, addressed to Mary Naime at 59a Fourth Avenue. Telephone accounts referring to telephone banking on telephone number 5233 would have come to the accused as, up to May 2003, Llandilo mail was delivered to a letterbox near the house at Fourth Avenue, from where it was collected by the accused. 41. On 19 November,1998, Mr Sukkar sold his interest in the Fourth Avenue property to the accused and her husband for $45,000. They were to assume responsibility for the outstanding mortgage over the property. Initially, Mr Sukkar stated that he had received no money. In cross-examination, he conceded that he may have been paid. It is likely that Mr Sukkar was paid for his share of the property. 42. The accused said that, in April 1999, Mr Sukkar was paid $22,000 by way of cash obtained through Mr Naime's brother, John Nehme, from whom she and her husband borrowed a total of $30,000. She said that, on 15 November 2000, Mr Sukkar was paid the outstanding $23,000. John Nehme gave evidence that, in April 1999, he provided $30,000 cash to the accused and her husband and witnessed them hand some of the money to Mr Sukkar. The document tendered through him (Exhibit 22, a statutory declaration dated 22 August 2000) does not support Mr Nehme's oral evidence, in that it says that $30,000 was loaned to Mr Naime in April 1991 (or 1994?). Mr Nehme was an inappropriate, defensive and belligerent witness. I place no credence on his evidence. However, there is some support for accused's assertion that Mr Sukkar was paid an initial installment of $22,000. A statutory declaration dated 18 August 2000, which appears to have been signed by Mr Sukkar, states that the accused and her husband "still owe me $23,000." In November 2000 $23,000 was paid to Mr Sukkar (Exhibit 2). Llandilo's Banking 43. The accused was responsible for Landilo's banking. 44. Initially, the accused drew business cheques and Mr Sukkar signed them. 45. On 16 October 1996, Llandilo opened a business account at the CBA, Granville (account number 2174 1008 7652 - Account 1). When the account was opened, Mr Sukkar requested an overdraft facility for business purposes, but his request was declined. Mr Sukkar did not recall attending the Bank to open the account. However, he probably did attend. Mr Sukkar's identification details were provided to the Bank. He signed the account application form, Exhibit C. Both Mr Sukkar and the accused became authorised signatories. The accused said that, at about that time, Mr Sukkar asked her to sign company cheques. 46. Mr Sukkar said that he did not properly read the account application form before he signed it, and did not realise that he had authorised the accused to sign cheques. Acording to Mr Sukkar, in early 1998, the accused informed him that he no longer needed to sign company cheques to pay suppliers because a CBA officer had said that she could sign the supplier cheques. As he was often on the road, this arrangement suited Mr Sukkar and he agreed to it. 47. It is not necessary to determine the factual dispute between Mr Sukkar and the accused. Both accounts may be substantially correct. On each account, at all relevant times the accused was authorised to sign Landilo cheques drawn on Account 1 for business purposes . 48. On Mr Sukkar's evidence, the accused had free rein with Llandilo's finances. He kept a diary in which he noted the cheques which he believed had been received by Llandilo and those which he believed had been drawn on the business account. The diary recorded what Mr Sukkar believed to be the approximate running balance from time to time. The accused would show him handwritten statements of monies banked to Account 1 and cheques paid from that account (similar to Exhibit D). He had not seen the original diaries since May 2003, but Exhibits 7 and 8 (produced by Landilo's liquidator from documents located at the Fourth Avenue premises) were part of his 2003 diary. I accept Mr Sukkar's evidence in this regard, particularly as it is partly supported by documentary evidence. 49. Mr Sukkar gave evidence of his understanding that, on Fridays, the accused attended the Penrith CBA to bank cheques received in the preceding week and to withdraw cash for wages. He believed that he received his wages of $387 by direct bank transfer into his passbook Account 7000. The reconstruction of his account (Exhibit X) does show payments of $387 in 2001-2002. He said that the accused and her husband were each paid $387pw. Sometimes, they received additional cash payments. Other employees confirmed that, generally speaking, wages were paid on a Friday. I accept Mr Sukkar's evidence of his understanding regarding the payment of wages. 50. The accused said that she only wrote cheques when instructed to do so by Mr Sukkar. According to the accused and her husband, Mr Sukkar closely supervised the writing of cheques. Mr Sukkar would "stand over" the accused, dictating the payee and the relevant amount from notes in his diary. The accused's husband said that, at times, Mr Sukkar raised his voice and created "bad vibes". 51. Mr Rea, a former employee of Llandilo, said that he had "probably" seen Mr Sukkar with the accused when she wrote out cheques. Mr Rea's evidence is suspect, as he was a nervous witness who purported to recall some matters of detail, but had little idea of the year in which he worked for Llandilo. The accused and her husband provided him with free accommodation for six months from 29 May 2003. In any event, Mr Rea's evidence in this regard does not provide significant support for the accused's version of events. 52. In relation to wages, the accused said that Mr Sukkar would instruct her to write a cash cheque and she would do so. She would sign the cheque, cash it, and hand the cash to Mr Sukkar, who would then pay cash to his employees. From about 2000, she kept a wages book. Prior to 2000, the wages book was kept by Mr Sukkar's accountant. In the period mid 2002 to May 2003, her wages were $450 pw, and her husband was paid $1200 -1500 pw, depending on the work which he had undertaken. She said that she and her husband were treated differently from other employees. They were not always paid on a Friday. Mr Sukkar would pay them varying amounts whenever it suited him. 53. On 2 August 2000, the accused opened a CBA account at the Penrith Branch in the name of Llandilo (Account 5278). She said that the account was opened at Mr Sukkar's request for GST purposes. The accused was the signatory to the account. Mr Sukkar denied that he knew of the account prior to May 2003. This account received little use. It is possible that Mr Sukkar knew but forgot about it. 54. In relation to telephone banking on a business account, a password may be obtained by an authorised signatory who holds a keycard linked to the business account, and may then be utilised for telephone banking. 55. On 23 February 2001, a CBA keycard attached to Account 1 was issued in the accused's name (keycard 4376). The keycard remained current until after May 2003. The accused said that, in early 2001, Mr Sukkar told her to obtain a keycard and showed her how to do telephone banking, for the purpose of enabling her to repay money which the business owed her into her personal account 5116, and to enable the payment of wages. Mr Sukkar denied knowledge or use of the keycard. 56. I accept Mr Sukkar's evidence that he did not know of the existence of the keycard, or it's use for telephone banking. His knowledge of modern banking practice was rudimentary and largely confined to the use of cheques. The keycard for Account 1 (and for Account 2) was issued in the accused's name. Although the accused maintained that keycards were kept in the office and were "available" for use by Mr Sukkar, no keycard transactions were identified as having been performed by Mr Sukkar. 57. Mr Sukkar said that, on several occasions, the accused told him that the business account needed funds. On 11 December 2001, 13 February 2002 and 9 April 2002, he withdrew from his son Mario's bank account a total of $35,000 by way of three bank cheques. The bank statements show that these amounts were deposited into Account 1 and recorded as "directors loans". Compared to the later related account transfers, these deposits were a very different way of fortifying Account 1. Mr Sukkar's Alleged Indebtedness To The Accused 58. The accused said that, in October 1999, Llandilo obtained an overdraft of $20,000. By that time, the Fourth Avenue property was free of a mortgage, and she and her husband agreed that it could be used as security for the overdraft. Exhibit 3 is the relevant mortgage. Exhibit 11 refers to a guarantee provided by Mr Sukkar for a Llandilo debt of $20,000. In May 2000, the overdraft secured by the mortgage was increased to $30,000. 59. According to the accused, in November 2000, the overdraft secured by the mortgage was discharged using part of a loan of $180,000 obtained by the accused and her husband. Mr Sukkar/Llandilo thereby became indebted to the accused and her husband in the sum of $30,000. The accused's evidence is supported by bank statements which show that, on 15 November 2000, $30,000 was injected into Account 1, creating a credit balance (Exhibit 4) . 60. The accused said that, as at November 2000, Mr Sukkar owed her and her husband $54,000, ie: (1) $30,000 loaned on 15 November 2000, originally the subject of an overdraft (see Exhibit 4); (2) $17,000 loaned on 17 November 2000 after a company cheque bounced (see Exhibits 5 and 12); (3) $2,000 loaned on 22 November 2000; and (4) $5,000 loaned on 14 May 1999 (see Exhibit 15). 61. There is no documentary support for the proposition that the sums of $2,000 and $5,000 emanated from the accused. Indeed, in Exhibit 5, the accused noted the sum of $2,000 as being "directors monies". However, because there is some documentary evidence to support some of the assertions of the accused and her husband, I am prepared to assume (without deciding) that, in late 2000, Mr Sukkar did owe them at least $47,000 and possibly as much as $54,000. 62. The accused said that, in addition to the sum of $54,000, in the period mid 2002 to mid 2003, she and her husband loaned other monies to Mr Sukkar. They were regular poker machine gamblers at the St Mary's Leagues Club. She was also a member of the Penrith Rugby League Club (Panthers). They attended a club a few times a week for dinner and in order to enjoy themselves. Occasionally, they remained at a club until 3 am. They were successful gamblers. According to the accused's husband, overall, they won more money than they lost. 63. When a St Mary's Leagues Club gambler wins more than $1,000 in a sittings, the amount under $1,000 may be paid in cash, but the amount over $1,000 is paid by cheque. 64. Between June 2002 and May 2003, the accused did deposit cheques (totalling approximately $15,700) from gambling winnings into Account 1. The accused and her husband said that, when the accused told Mr Sukkar of her winnings, he often asked her to deposit the money into the company account. She kept no record of those "loans" to Mr Sukkar, trusting him to keep an accurate record of the "loans" in his diary. 65. I consider that the accused and her husband lied about this matter. It was not put to Mr Sukkar that he asked the accused to deposit her gambling winnings into Account 1. The deposit of gambling winnings may well have been an attempt by the accused to repay monies which she had withdrawn illegitimately. 66. The accused said that the various loans were repaid by Mr Sukkar in an ad hoc fashion. She would make telephone transfers into her account, as and when Mr Sukkar instructed her to do so. He would ring her and tell her to effect a telephone transfer, or would write out amounts which were to be transferred and place the note in front of her. He would stand next to her while she complied with his written directions. Sometimes, Mr Sukkar himself made telephone transfers to her Account 6570 (although no particular transfers were identified). At times, Mr Sukkar himself effected telephone transfers to her Visa account 7115 (although no particular transfers were identified). After making a transfer, he would advise her that he had done so. 67. The accused's account of the ad hoc loan of gambling winnings and the ad hoc repayment of substantial loans of indeterminate amount was a blatant lie. The accused and her husband kept a record neither of the monies loaned nor of the monies repaid, allegedly relying upon the honesty of Mr Sukkar. Nor did the accused check her bank records to ascertain what monies had been received. It was not put to Mr Sukkar that he kept a record of loans and loan repayments in his diary. Exhibits 7 and 8 (parts of the 2003 diary) contain no such record. The spreadsheets compiled by Mr Fogarty show that monies paid from Account 1 to the accused's Account 5116 were immediately withdrawn at a club (probably for gambling - see Exhibit V, tab E). The spreadsheets show that monies paid from Account 1 to the accused's Account 0354 were closely associated with monies paid from Account 0354 to Account 1, ie the monies were not paid into the accused's account by way of loan repayment but by way of "kite flying" (Exhibit V, tab D) . Count 1 68. In unascertainable circumstances, a "Y" indicator was attached to Account 1, so cheques drawn on Account 1 were cleared and credited immediately, and could be drawn upon immediately. As the cheques were not debited from Account 1 until the next working day, by means of "related account transfers", "available" funds could be artificially inflated for one working day. 69. The Crown submitted that, having become aware that Account 1 cheques were cleared immediately, in about May 2002 the accused opened an account for the purpose of "kite flying". 70. On 29 May 2002, the accused opened CBA account number 2596 1014 6448 (Account 2) at the Riverstone Branch. The accused signed an authority for firm accounts in relation to Llandilo, which stated that she was the sole proprietor of Llandilo and the sole signatory for Accounts 1 and 2 (Exhibit F). 71. The accused said that she opened Account 2 at the request of Mr Sukkar. She said that she told Mr Scully, the Bank officer, that she was a signatory on Account 1, but was not a director of Llandilo. The latter proposition was not put to Mr Scully in cross-examination. The accused denied telling the Bank that she was the sole proprietor of Llandilo. She said that she showed the Bank the cheque book for Account 1, and then signed the document where she was told to sign. 72. Mr Scully said that he would have accessed details regarding Landilo's accounts on the computer. He failed to follow usual procedure and "verify the company director where the original account was opened", i.e. failed to contact the Granville Branch to obtain a copy company search identifying the Llandilo directors. 73. Generally, Mr Sukkar has consistently denied knowledge of Account 2. The accused relied on Mr Ali's note that, on 29 May 2003, Mr Sukkar said that "he was aware of (a second account)". However, that note is qualified by Mr Ali's statement "he thought that all these accounts were the one account" (consistent with a statement made earlier that day to Mr Matta), Mr Sukkar's statement to Mr Ali on 30 May (per Mr Bougoine) and Mr Sukkar's shock and anger when he learned about the three accounts, the telephone banking and the "kite flying". If Mr Sukkar used the words attributed to him, he did not mean that he was aware that Account 2 had been opened and used over the preceding twelve months. 74. On 29 May 2002, a keycard for Account 2 was issued in the accused's name. The accused said that she gave the keycard to Mr Sukkar, who placed it in the office with the cheque books. She agreed that she did use the keycard, but said that it was also available to Mr Sukkar. Mr Sukkar denied knowledge or use of the card. Another keycard for Account 2 was issued on 16 October 2002 (keycard 4328 17). 75. The accused's personal Account 5116 was operated until 21 October 2002. In the period June to October 2002, there were many occasions when, but for the telephone transfer of substantial sums from Account 1 or Account 2 to Account 5116, Account 5116 would have become overdrawn. The monies transferred from Account 1 or Account 2 were usually withdrawn from Account 5116 on the same day, utilising ATM machines at the St Marys Leagues Club or the Panthers Club (tab E, Exhibit V). But for related account transfers, Account 5116 would have been overdrawn by $11,042 as at 21 October 2002. 76. I find that the accused lied about the circumstances in which she came to sign Exhibit F. Rather, the accused intentionally signed the statement in Exhibit F. She opened Account 2 so that she could engage in "kite flying" for her own financial advantage. The main reasons for these findings are as follows. (1) The spreadsheets compiled by Mr Fogarty show that almost no legitimate transactions were processed through Account 2 and that the account was used for "kite flying". (2) The accused's personal accounts benefitted from the "kite flying", and the benefit began soon after Account 2 was opened. (3) The accused was a gambler. Gamblers may seek short term access to funds in the unrealistic expectation that a winning will materialise and the money can be repaid. There were occasions when the accused did pay her winnings into Account 1. (4) Had the accused made the alleged a contrary statement, it is inherently unlikely that Mr Scully would have thought that the accused was the sole proprietor of Llandilo. The proposition was not put to him. The Exhibit F statement that the accused was the sole proprietor of Llandilo must have emanated from the accused herself. (5) It is inherently unlikely that the accused, a bookkeeper, would have failed to read a critical part of a short Bank document and identify an important error. (6) Mr Sukkar was an honest, albeit somewhat unreliable witness. I accept that Account 2 was not opened at his direction and that it was not until May 2003 that he knew about Account 2 or the associated keycard and telephone banking. I have referred the evidence of Mr Ali and others regarding Mr Sukkar's shock and disbelief when he learned of Account 2 and it's use for "kite flying". Even Mr Naime said that, on 28 May 2003, Mr Sukkar was furious and alleged that he had been "robbed". On learning of the transactions, Mr Sukkar made an immediate complaint to police. Financial Transactions From October 2002 77. On 16 October 2002 (the same day that a new keycard was issued in the accused's name on Account 2), Account 0354 was opened in the joint names of the accused and her husband. It was operated between November 2002 and 6 June 2003. The accused and her husband said that the account was opened because they needed a cheque account in order to make repayments on a new vehicle. The accused said that she provided Mr Sukkar with the account details. At Mr Sukkar's direction, she drew cheques on the account. 78. On 16 October 2002, the accused also opened passbook account 7055 (tab H in Exhibit V, Exhibit 17). She said that it was intended to be an investment account. Her wages and those of her husband were paid into the account. She said that Mr Sukkar knew the account details. 79. The accused said that Mr Sukkar specifically told her to make ATM withdrawals from Account 1 at clubs. Sometimes, he told her to travel to the St Marys Leagues Club for the specific purpose of withdrawing cash from an ATM. On other occasions, knowing that she was at the Club with her husband, he telephoned her and directed her to withddraw money from the ATM at the Club. In the course of an evening, he might make two or three such telephone calls. The cash which she withdrew was not used for gambling purposes. She gave it to Mr Sukkar herself, or gave it to her husband to pass on to Mr Sukkar. The accused's husband corroborated the accused's evidence. 80. As one example of the improbability of the accused's account of ATM withdrawals at clubs, the Crown referred to the ATM withdrawals made from Accounts 1 and 2 at the St Marys Leagues Club between approximately 10:30 pm on 3 December and 12:25 am on 4 December 2002. There were 7 withdrawals, for amounts ranging from $80 to $200 (total $880), and one account inquiry. It is hardly likely that Mr Sukkar would have made many late night calls to the accused, instructing her to withdraw small amounts of money. It is very likely that the accused was gambling and, because she was losing money, she continued to make withdrawals. 81. There is no obvious rational explanation for Mr Sukkar asking the accused to travel some distance from her home/workplace to make ATM withdrawals at a specific club ATM, particularly if (as the accused alleged) he knew that she (and he) could access telephone banking. 82. The accused referred to a telephone call to the CBA telephone transfer number at 12:13 pm on 9 August 2002. She said that she could not have made the call. The accused and her husband said that, on Friday, 9 August, 2002, they left Sydney in the early morning and travelled to Melbourne by car to see a wrestling match. They returned late on the night of Sunday, 11 August 2002. Although the accused did produce a ticket to a Melbourne wrestling match on the night of Saturday, 10 August, there is no corroboration of the evidence of the accused and her husband as to the time of their departure from Sydney and both witnesses were unreliable. 83. I have found (at para 26 and elsewhere) that Mr Sukkar was an honest witness. I accept that he knew nothing about Account 2, the keycards attached to Accounts 1 and 2, or the associated ATM withdrawals, telephone banking or "kite flying". Ms Picco's Evidence 84. Cheques presented at an Australia Post Office CBA agency are credited immediately. Debits are processed at the CBA Operations Centre on the next working day. 85. In about October 2002, the accused began to use the CBA agency facility at the Llandilo Post Office. She dealt with the licensee, Mary Picco. 86. Ms Picco said that, when banking at the Post Office, the accused used a keycard which was in her name. The keycard also contained a business reference. 87. Ms Picco remembered the accused stating that she and her brother owned Llandilo. A couple of months after she began to bank at the Post Office, the accused told Ms Picco that she and her husband, Michael, had purchased Llandilo. The accused denied the conversation. 88. Ms Picco said that the accused came to the Post Office almost every day to deposit cheques for substantial amounts (from about $7,000 to about $16,000) into a Llandilo account. The accused told Ms Picco that her brother banked business cheques at Auburn. She said that there were two Llandilo accounts, and that she was transferring money between the accounts so that withdrawals would be debited in the evening "because the payments had to come out that night". The accused denied the conversation. 89. Ms Picco said that she asked the accused to stop "business banking" at the Post Office, ie to stop transferring monies from one business account to another. Subsequently, Ms Picco refused to accept banking which she classed as "business banking". After the "business banking" conversation, the accused deposited cheques for lesser amounts -- usually about $2,000 -- made out to " pay Mary Naime" or "pay cash". Because Ms Picco knew that the accused had a passbook account in her own name and understood that the cheques were being deposited into that private account, she accepted the deposits. Ms Picco did not appreciate that, although the cheques were made out to the accused and the accused was nominated on the deposit slip as the account holder, in fact the cheques were drawn on Account 1 and paid into Account 1 or Account 2. 90. The accused denied the conversation concerning "business banking". She asserted that Ms Picco told her to make cheques out in her own name, and she obtained Mr Sukkar's agreement before instituting the practice. 91. It was Ms Picco's evidence that the accused asked her to bank cheques as "cash" and offered to pay her for that service, but she declined the offer. On one occasion, Ms Picco did agree to deposit as "cash" a cheque for $17,600. About a week later, Ms Picco showed the accused a letter from Australia Post informing Ms Picco that she must not accept such "cash" deposits. 92. Ms Picco said that, in about February 2003, the accused sought to deposit six Llandilo cheques, ranging from $7,000 to $17,000, as "cash". Initially, Ms Picco declined the request. The accused began to cry and told Ms Picco that she was experiencing difficulties with her sister-in-law concerning the sale of Llandilo. The accused showed Ms Picco a letter which appeared to be on CBA Penrith Branch letterhead, and which purported to authorise the Post Office to clear cheques for the accused. She told Ms Picco that her father was ill and she needed to visit him. Ms Picco then cleared one cheque. The cheque was dishonoured. 93. The accused denied that she possessed a letter from the CBA or showed any such document to Ms Picco. 94. Except as to dates, I accept Ms Picco's evidence, including her evidence that the accused lied about ownership of Llandilo, attempted to deceive Ms Picco by drawing cheques to herself or "cash" but continuing to do "business banking" after being told that it was unacceptable, and produced a bogus CBA document in an attempt to persuade Ms Picco to accept "cash" cheques. May 2003 95. On 13 May 2003, Account 1 went into debit (Exhibit S). But for related account transfers, Account 1 would have become overdrawn in November 2002 and the overdraft would have increased in the period up to May 2003. 96. According to a diary note which he made on 25 June 2003, on 14 May, Mr Ali of the CBA rang the accused (the nominated point of contact for Llandilo). He asked her why cheques were being deposited at the Llandilo Post Office instead of the local CBA branch. The accused stated that it was a matter of convenience. He asked why Account 1 was overdrawn. She stated that she had been unable to transfer money as her father was seriously ill in Westmead Hospital. 97. The accused said that was not until 19 May that she spoke to Mr Ali. On 16 May, her father was admitted to Westmead Hospital suffering from a serious illness. He was discharged on 6 June. The accused said that, on 19 May, she did tell Mr Ali that her father was in hospital, but she did not say that she had been "unable to transfer money" for that reason. 98. As Mr Sukkar Snr was not admitted until 19 May, Mr Ali must be wrong about the date of the conversation. However, he is a relatively independent witness who made a reasonably contemporaneous note of the conversation. I accept his evidence about it's contents. 99. Mr Ali said that, on 23 May 2003, he telephoned the accused. He told her that the company account would become overdrawn as a result of cheques being dishonoured. She said that she did not understand, but would ensure that account was brought back to order. 100. The accused agreed that she spoke to Mr Ali on 23 May, but said that there was no mention of cheques being dishonoured. It was not until after 29 May that she learned that cheques had been dishonoured. In the conversation of 23 May, she merely provided Mr Sukkar's mobile telephone number, to enable Mr Ali to contact Mr Sukkar. 101. I accept Mr Ali's version of the conversation. 102. On 23 May 2003, the CBA removed the "Y" indicator and put a "stop" on Account 1. 103. Ms Picco said that the accused told Ms Picco that her personal accounts and the Llandilo accounts had been frozen "because her brother had stolen all the business cheques". The accused said that "there was no money left in the business". The accused denied the conversation, but I accept Ms Picco's evidence. 104. According to Mr Sukkar, on 28 May 2003, Mr Ali telephoned Mr Sukkar. Mr Ali said that he had left messages with the accused asking that Mr Sukkar contact him. Inter alia, Mr Ali told him that Account 1 was overdrawn by $255,860. 105. Mr Ali could not recall whether he spoke to Mr Sukkar on 28 May. 106. Mr Sukkar said that, after receiving Mr Ali's telephone call, on 28 May he telephoned the accused and asked why she had failed to pass on a message to call Mr Ali. She stated that she had forgotten. In relation to the overdrawing, she told him: "don't worry, there is nothing wrong with the accounts" and ended the call. Later, she telephoned Mr Sukkar and said: "someone is playing a joke on you and if anybody rings you from the Commonwealth Bank do not answer your home phone or your mobile". 107. The accused denied the conversation. She said that the Bank did telephone and ask to speak to Mr Sukkar. She told Mr Sukkar that he should call the Bank. 108. Mr Sukkar said that, later on 28 May, Mr Ali telephoned him and said that the accused had been transferring money from a business account to an account held by herself and her husband. An arrangement was made for Mr Sukkar to attend the Bank on the following day. Mr Sukkar said that, at about 4.30 pm, he telephoned the accused and told her that the Bank wished to discuss the accounts and was coming to the business premises to see the paperwork. 109. The accused said that she did not speak to Mr Sukkar on that day. From Sunday, 25 May, she was unwell and bedridden. 110. The accused's husband said that, at about 8:30 pm on 28 May, he received a telephone call from Mr Sukkar, who was yelling and swearing. Mr Sukkar accused Mr Naime of "robbery" and stated that he was in contact with the "Fraud Department". 111. If one accepts Mr Naime's evidence about this conversation, then Mr Sukkar must have had an earlier conversation with Mr Ali in which he was given some information about the Naimes using company funds in an unauthorised manner. 112. Generally, I accept Mr Sukkar's account of conversations with the accused and Mr Ali on 28 May. However, given Mr Ali's account of what transpired on 29 May, it may be that the amount of the overdrawing - $255,860 - was not mentioned until 29 May. 113. On 29 May 2003 at about 3 am, the accused was taken by ambulance to the Nepean Hospital complaining of nausea and suffering from hyperventilation. She was released mid morning and collected by her husband (Exhibit 13). The accused said that she had been sick since at least 23 May 2003. The Crown submitted that the accused was feigning illness. It is neither possible nor necessary to make a finding in this regard. 114. On the morning of 29 May, Mr Sukkar, Mathew Matta (Mr Sukkar's brother-in-law, a Llandilo employee) and other employees arrived at the Fourth Avenue property to commence work. They were unable to gain entry as the accused's vehicle had been reversed up to the gate. After an unproductive conversation with the accused's husband, they returned to Mr Sukkar's home. Mr Matta said that, en route, Mr Sukkar told him that the Bank had telephoned about "overdue accounts" but "he couldn't understand what was going on with the accounts because he only had one account". I accept Mr Matta's evidence. 115. Later that morning, Mr Sukkar, his wife and Mr Matta met Mr Ali and another CBA officer at the CBA. On 30 May, Mr Ali made a detailed diary note of the meeting.The diary note states that, when Mr Sukkar was told that Account 1 was overdrawn by $255,861, Mr Sukkar "did not seem to comprehend and was in complete denial". When told of the existence of Account 2 and the fact that the accused was the signatory on that account : "Mr Sukkar advised that whilst his signature is not on the Authority he was aware of (a second account) but commented that he thought that all these accounts were the one account." 116. Mr Ali's diary note records that, when Mr Sukkar learned that there were three accounts and that "kite flying" had occurred using telephone banking, he became "very upset" and "continued to be in denial". Mr Sukkar expressed the "firm belief" that it could be a Bank error, but, after further explanation, he appeared to accept the situation. 117. Mr Matta had a similar recollection of the meeting, except that he recalled Mr Sukkar saying: "I only have one account that I know of and I don't know anything about an overdraft." 118. Mr Ali denied Mr Sukkar's evidence that, in the course of the meeting, he (Mr Ali) said: "We don't want the Fraud Squad to be involved. We want your sister to come and sort it out." 119. Mr Matta confirmed Mr Sukkar's evidence that, while Mr Sukkar was at the Bank, he attempted to contact the accused. Mr Matta recalled that the attempt was unsuccessful, whereas Mr Sukkar said that he spoke to the accused, who told him never to contact her again. It does not matter which account is correct. At the time, both witnesses would have been very upset, and that may have affected their recall. 120. On 29 May, the accused and her husband spoke to a solicitor regarding Mr Sukkar's allegations. 121. On 30 May, Mr Bougoide, a financial accountant and family friend of Mr Sukkar, accompanied Mr Sukkar to a meeting with Mr Ali at the Bank. Mr Bougoine said that, in the course of the meeting, Mr Sukkar informed Mr Ali that the accused's authority was limited to making supplier payments and paying wages, and that she had no authority to open or close accounts or make other payments. Mr Bougoide was "positive" that Mr Sukkar denied all knowledge of Account 2. According to Mr Bougoide, Mr Ali said: "We are willing to resolve this matter internally if your sister will come in and cooperate." 122. This recollection is similar to Mr Sukkar's memory of a statement made by Mr Ali on the previous day. 123. After the meeting, Mr Sukkar and Mr Bougoide proceeded to the Granville Police Station, where Mr Sukkar made a "walk in" report. 124. Account 1 was frozen with a debit balance of $255,860. The accused's Account 0354 was frozen with a credit balance of $111,542. 125. Llandilo received an account for unpaid taxation. At the instigation of the Australian Taxation Office, on 3 October 2003, a liquidator was appointed. Subsequently, the company was wound up. Mr Fogarty's Evidence 126. Mr Fogarty, a forensic accountant, gave evidence about many substantial transfers of funds between Account 1, Account 2, Account 5116, Account 7055 and Account 0354. In the period 30 May 2002 to 6 June 2003, a total of $17,286,904 flowed between those accounts by way of related account transfers (Exhibit V, summary spreadsheet document attached to Mr Fogarty's statement of 17 September 2007). 127. From about October 2002, there were almost daily related account transfers involving Accounts 1 and 2. The nature of the transactions is illustrated in Exhibit EE. A number of substantial cheques, totalling, say, $68,000, would be drawn on Account 2 and deposited to Account 1. The funds would be credited to Account 1 immediately. There would be a telephone transfer of about $68,000 from Account 1 to Account 2. On the following day, the cheques would be debited to Account 2. The effect of the dealings was to temporarily inflate the apparent credit balance in Account 1. 128. In some instances (including counts 4,5,8,11,12,13,15,16,17 and 20) there were telephone transfers from Account 1 to one of the accused's accounts (for example, for count 4, the total sum was $45,900). On the same day, cheques totalling a slightly lesser sum were drawn on the accused's account and paid to Account 1 (for example, for count 4, the slightly lesser sum was $45,400). 129. On other occasions, a cheque was drawn on Account 1 and deposited to the accused's Account 6570 (counts 2 and 3) or 7055 (counts 14 and 18), where it was immediately credited, although it was not debited to Account 1 until the next working day. 130. Between 3 December 2002 and 23 May 2003, significant withdrawals from Accounts 1 and 2 were made from ATMs at the St Marys Leagues Club and the Panthers Club (Exhibits Z and AA). For example, between 10:30 pm on 3 December and 12:25 am on 4 December 2002, a total of $880 was withdrawn from the accounts. ATM withdrawals are the subject of counts 6, 7, 9, 10 and 19. 131. In the period 30 May 2002 to 6 June 2003, there was a net deficit to Account 1 of $254,195, compromising: net gain to the accused's accounts $187,090 ATM withdrawals $ 45,490 net gain to Account 2 $ 21,165 $254,195 132. In the same period, there was a net gain to the accused's accounts of $203,310 from Accounts 1 and 2, comprising: Account 0354 $118,495 Account 5116 $ 11,045 Account 6570 $ 57,670 Account 7055 $ 16,100 $203,310 133. In addition, between June 2002 and May 2003, twenty transfers, totalling $15,630, were made from Account 1 or 2 to the accused's Visa Account 7115. 134. In May 2003, when the accounts were frozen, Account 1 was overdrawn by about $256,558, there was $111,543 credit in Account 0354, and there was no significant balance in any other account. Count 2 135. On 29 August 2002, the accused drew cheque 1778 for $1500 on Account 1, made payable to herself and her husband. She deposited it to Account 6570. On the relevant cheque butt, she wrote "woodturner". Prior to this deposit, the balance in Account 6570 was $10.53. On 29 August 2002, the accused was at the St Marys Leagues Club. On that day, $400 was transferred by telephone from Account 1 to Account 5116 and withdrawn at a St Mary's Leagues Club ATM (tab E, Exhibit V). . 136. The accused said that cheque 1778 was for wages payable to herself and her husband. 137. The incorrect notation on cheque butt 1778 was not an isolated occurrence. A number of Account 1 cheque butts refer to supplier payees, but the payee on the relevant cheque is the accused and her husband, and the cheque was deposited to their account. For example, between 10 and 17 September 2002, Account 1 cheques 1787 to 1792 for the total amount of $8,300 were made out to the accused and her husband and deposited to account 6570, although the relevant cheque butts refer to business purposes. There are many cheque butts that are blank or contain information that is contrary to the information on the related cheque. The accused's handwritten ledger (Exhibit D) also contains falsely recorded items. 138. I am satisfied beyond reasonable doubt that the sum of $1,500 was not wages. The sum in question corresponds neither to Mr Sukkar's evidence nor to the accused's evidence about the amount which was paid by way of wages. Had it been "wages", the accused would not have concealed the transaction by writing "woodturner" on the butt. Prior to the deposit, the accused's account contained almost no money. As the accused was at a club on that day, the likely motive was to obtain money for gambling, or to recover money lost through gambling. Count 3 139. On Wednesday, 9 October 2002, cheque 1810 for $7,200 was drawn on Account 1, made payable to M and M Naime, and deposited into Account 6570. The cheque butt is blank. Via seven withdrawals, $7,200 was withdrawn from Account 6570. Prior to the deposit and following the withdrawals, the account balance was $559.10. 140. On the same day, $5,200 cash was deposited into Account 2 at the Llandilo Post Office. On 8 October, $2,000 cash had been deposited into Account 2. On 9 October, $7,200 was paid from Account 2 to Account 1 by two telephone transfers, $5,200 (at 10.45am) and $2,000 (at 11.58pm). 141. The accused said that Mr Sukkar directed her to write cheque 1810 for $7,200. Later in the day, when she was doing the banking at the Llandilo Post Office, Mr Sukkar telephoned her and directed her to put $5,200 into Account 2. The accused said that $2,000 was owed to her and her husband for wages and was retained in Account 6570. 142. I have found that Mr Sukkar did not know about Account 2. The sum of $2,000 does not correspond to any wages amount referred to in the evidence and the butt was left blank. I am satisfied beyond reasonable doubt that the cheque was part of a "kite flying" exercise to temporarily place credit in the accused's account. The transaction was orchestrated by the accused without Mr Sukkar's knowledge. Count 4 143. On Thursday, 5 December 2002 at 5:04 pm, there was a telephone transfer of $22,000 from Account 1 to Account 0354. On the same day, amounts of $3,900 (at 4:11 pm) and $20,000 (at 5:05 pm) were telephone transferred from Account 1 to Account 0354, a total transfer of $45,900. The three telephone transfers were undertaken on the 5233 telephone number. On the same day, cheques totalling $45,400 were debited to Account 0354, although they had been credited to Account 1 on 4 December. On 1 November, 2002, Account 1 had become overdrawn and it remained overdrawn, but the overdrawing was concealed because of related account transfers. 144. The accused said that she could not have undertaken the telephone transfers at about 5pm, as she was nowhere near telephone 5233 at that time. She left the Landilo property and drove to the Landilo Post Office, where she deposited cheques at about 4:34 pm (Exhibit 16). On 5 December 2002, her daughter Rosemarie was working as an apprentice chef at an Annangrove restaurant. Rosemarie finished her shift at 5 pm (Exhibit JJ) and usually took 15 - 20 minutes to clean up and leave the work premises. It was the accused's invariable practice to arrive at her daughter's workplace at 5 pm for the purpose of collecting Rosemarie and driving her home. The drive from Landilo to Annangrove took at least 30 minutes each way. The accused's evidence was corroborated by evidence from Rosemarie and the restaurant supervisor, both of whom presented as honest witnesses. 145. The Crown submitted that the accused may have undertaken the telephone transfer at Llandilo and been only slightly late to collect her daughter. 146. However, having regard to the evidence of Rosemarie and the restaurant supervisor, I cannot eliminate the rational inference that someone other than the accused effected the relevant telephone transfer. I find the accused not guilty of this charge. 147. For the reasons stated in para 28, I do not believe that the culprit could have been Mr Sukkar. 148. As I entertain a reasonable doubt about the accused's guilt on this charge, I take that doubt into account in relation to the other charges, particularly the charges relating to telephone transfers. Count 5 149. On 12 December 2002 at 5:23 pm, $20,000 was telephone transferred from Account 1 to Account 0354 on telephone 5233. At 5:21 pm, $26,400 was transferred (a total of $46,400). Prior to the transfers, the balance in Account 0354 was $18.45. On 12 December, cheques for $16,700 and $13,000 were debited to Account 0354, although they had been credited to Account 1 on 11 December. In addition, on 13 December, there was a telephone transfer of $16,500 from Account 0354 to Account 2 (total $46,200). After the five transactions, the balance in Account 0354 had increased from $18.45 to $218.45. 150. The accused said that she may have effected the transfer but, if she did so, it was on Mr Sukkar's instructions. 151. I have found that Mr Sukkar did not direct the telephone transfer of funds and did not know that funds were being transferred by telephone. The transfers were effected after business hours on a telephone to which the accused had access. Prior to the transfers, the accused's account had almost no funds. The effect of the transfers was to temporarily inflate the balance in the accused's Account 0354 and leave that account with a net gain of $200. The only available rational inference is that the accused effected the transfer of $20,000 for the purpose of obtaining credit in her account, and Mr Sukkar knew nothing of it. Count 6 152. On Sunday, 5 January 2003 at 12:34 pm, there was an ATM withdrawal at the St Mary's Leagues Club of $450 from Account 1. On that day, the accused was gambling at the Club. Her winnings were partly paid by cheques, totalling $1,400. On Monday, 6 January, 2003, there was a cheque deposit of $1,400 to Account 1. 153. The accused said that, a few days before Christmas, she spent $450 on a Christmas party for Llandilo employees at the St Marys Leagues Club. The buffet cost $27 per person, and she paid for drinks. On the day of the party, she did not have a keycard with her. Mr Sukkar told her to reimburse herself by withdrawing $450 from an ATM on the next occasion that she was at the Club, and she did so on 5 January. 154. Mr Woods said that the 2002 Christmas party was held at the St Marys Leagues Club, but there were only four attendees and the accused paid for only a few drinks. The accused was playing poker machines. 155. The accused made ATM withdrawals at the St Marys Leagues Club on 23 and 30 December 2002. On 1 and 2 January, 2003, she used a keycard at the Panthers Club. 156. I am satisfied beyond reasonable doubt that the accused withdrew the money for her own purposes - probably gambling - and the withdrawal had nothing to do with the Christmas party, which (based on Mr Woods' evidence) involved a significantly lower expenditure. Prior to 5 January, there was ample opportunity for the accused to obtain reimbursement for Christmas party expenditure, either by using an ATM or from petty cash. I accept Mr Sukkar's evidence that the accused was authorised to take Christmas party money from petty cash. Count 7 157. On Friday, 30 January 2003 at 11.56 am, $800 was withdrawn from Account 1 at a St Marys Leagues Club ATM, reducing the credit balance to $78:63. At 11:57am, $1,000 was telephone transferred from Account 2 to Account 1, $800 was withdrawn from Account 2 at a Club ATM, and $800 was transferred from Account 2 to the accused's Visa account. The accused was gambling at the Club and collected a winnings cheque for $119 (indicating winnings of $1,119). 158. In relation to the ATM withdrawal from Account 1, the accused said that her brother asked her to make the withdrawal and give the cash to him, and she did so. 159. I have found that Mr Sukkar did not know about Account 2 and did not know that the accused had a keycard for any business account. The withdrawal of $800 was not a straightforward cash withdrawal, but part of a "kite flying" exercise. I am satisfied beyond reasonable doubt that the accused withdrew the money for her own purposes - almost certainly, gambling - without her brother's knowledge. Count 8 160. At 5:57 pm on Tuesday, 11 March 2003, $19,350 was telephone transferred from Account 1 to Account 0354 via the 5233 telephone number. On the same date, cheques were debited to Account 0354 in the total sum of $19,300 ($9,600 and $9,700). They had been credited to Account 1 on earlier dates. The nett effect of the transfers was to bring Account 0354 from a debit balance to a credit balance of $49.76. 161. The accused said that she could not have effected the telephone transfer as she would have collected her daughter from work and would not have arrived home by 5:57 pm. However, allowing for the usual clean up time of 15-20 minutes and a driving time of 30 minutes (the minimum time given by the accused), there was adequate time for the accused to collect her daughter and still effect the transaction. 162. The accused also said that all telephone transfers which she effected were undertaken on her brother's instructions. 163. I have found that Mr Sukkar did not direct the telephone transfer of funds and did not know that funds were being transferred in that way. The transfer was made out of business hours on a telephone to which the accused had access. The effect of the transfer was to bring the accused's account into credit. There is no available rational inference other than the inference that the accused effected the transfer without her brother's knowledge to obtain a credit to her account. Count 9 164. At 10:32 pm on 2 April 2003, at a St Mary's Leagues Club ATM, there was a balance inquiry in relation to Account 1, followed by an ATM withdrawal of $300 from Account 1. At 12:25 am on 3 April, there was a further withdrawal of $100 from Account 1. On the same night, between 9:45 pm on 2 April and 12:33 am on 3 April, there were 5 withdrawals from Account 2, in the total sum of $1,350. The accused was gambling at the St Mary's Leagues Club on 2 April. She received a cheque payout for $500, indicating that her total winnings on 2 April were $1,500. 165. In relation to the withdrawal of $300 from Account 1, the accused said that she withdrew the cash and gave it to Mr Sukkar. 166. I have found that Mr Sukkar did not know that the accused had a keycard for Account 1. The location and time of the withdrawal, it's associaton with six other withdrawals and the fact that the accused was gambling on the day in question mean that the only available rational inference is that the money was withdrawn for gambling. Counts 10 and 19 167. The facts in relation to these counts are similar. 168. Count 10 At 11:39 am on Tuesday 8 April 2003, at the St Mary's Leagues Club, there was an ATM withdrawal of $800 from Account 1. On that day, the accused was gambling at the Club. She received cheque payouts of $183.55 and $900, indicating total gambling winnings of $3,083.55. 169. Count 19 At 8:35 pm on Monday, 12 May 2003, at the St Mary's Leagues Club, there was an ATM withdrawal of $800 from Account 1. At 8:21 pm, $800 had been withdrawn from Account 2. On that day, the accused was gambling at the Club. She received a Club cheque for $761, indicating that her total winnings for the day were $1,761. 170. The accused said that, in each case, she withdrew the sum of $800 at her brother's request and gave the money to him. 171. I have found that Mr Sukkar did not know that the accused had a keycard for Account 1. On the days in question, she was gambling at the location of the ATM withdrawal. In relation to each count, the only available rational inference is that the accused withdrew the money for her own purposes, probably gambling. Count 14 172. On Friday, 2 May 2003, cheque 1951 for $2,500 drawn on Account 1 was credited to Account 7055. It was not until the following Monday that the cheque was debited to Account 1. The cheque butt contains no details as to date or payee. On 2 May, $800 was withdrawn from Account 7055 and, on 5 May 2003, $1,000 was withdrawn from the account. Although Account 7055 was supposedly an investment account, prior to injection of the $2,500 cheque, the credit balance in the account was eight cents. 173. The accused said that the money was wages for herself and her husband. Mr Sukkar would tell her how much was payable, and she would make out the relevant cheque. 174. I have found that Mr Sukkar thought that wages were being paid by the cashing of a cheque and the distribution of the cash. The sum does not accord with the wages amounts of which any witness gave evidence, and no details were recorded on the butt. The accused's account was in dire need of funds. I am satisfied beyond reasonable doubt that the deposit was made without Mr Sukkar's knowledge, for the purpose of obtaining a credit to the accused's account. Counts 11,12,13,15, 16 and 17 175. The facts relating to each count are similar. 176. Count 11 At about 8:51 pm on Thursday, 24 April 2003, there was a telephone transfer of $32,000 from Account 1 to Account 0354, using the 5233 telephone number. On the same date, cheques in the total sum of $32,000 ($16,600 and $15,400) were debited to Account 0354, although the cheques had been credited to Account 1 on the previous day, utilising the Llandilo Post Office. The accused's writing and signature appears on the cheques and deposit slips. 177. Count 12 At 6:30 pm on Monday, 28 April 2003, there was a telephone transfer of $35,750 from Account 1 to Account 0354, using telephone number 5233. Cheques in the total sum of $35,600 ($17,850 and $17,750) were debited to Account 0354 on 28 April, although they had been credited to Account 1 on 24 April, utilising the Llandilo Post Office. The accused's writing and signature appears on the cheques and deposit slips. 178. Count 13 At 5:45 pm on Thursday, 1 May 2003, there was a telephone transfer of $36,100 from Account 1 to Account 0354, using the 5233 telephone number. On that date, cheques totalling $35,850 ($17,950 and $17,900) were debited to Account 0354, although the cheques had been credited to Account 1 on 30 April, utilising the Post Office. The accused's writing and signature appears on the cheques and deposit slips. 179. Count 15 At 7:26 pm on Friday, 2 May 2003, there was a telephone transfer of $49,100 from Account 1 to Account 0354, effected on telephone number 5233. On 1 May 2003, cheques totalling $48,850 had been drawn on Account 0354 and credited to Account 1 by Post Office deposit, although it was not until 2 May that the cheques were debited to Account 0354. The accused's writing and signature appears on the cheques and deposit slips. 180. Count 16 At 6:47 pm on Monday, 5 May 2003, $46,500 was telephone transferred from Account 1 to Account 0354, using the 5233 telephone number. On Friday, 2 May, cheques totalling $45,400 had been drawn on Account 0354 and credited to Account 1, utilising the Landilo Post Office, although the cheques were not debited to Account 0354 until 5 or 6 May. The accused's handwriting and signature appears on the cheques and deposit slips. 181. Count 17 At 8:10 pm on Wednesday, 7 May 2003, $18,200 was telephone transferred from Account 1 to Account 0354 utilising telephone number 5233. On 6 May, a cheque for $17,900 had been drawn on Account 0354 and credited to Account 1 via a deposit at the Post Office, but it was not until 7 May that the cheque was debited to Account 0354. The accused's handwriting and signature appears on the cheque and deposit slip. 182. In relation to each count, the accused said that, if she was responsible for the transfer, she did it on Mr Sukkar's instructions. 183. I have found that Mr Sukkar did not know about the telephone transfer of funds or "kite flying". Each transfer was done out of business hours on a telephone to which the accused had access. The transfer created a large temporary credit to the accused's account. Except in the case of Count 11, at the end of the "kite flying", there was a nett credit to the accused's account. Each episode was associated with cheque deposits which must have been undertaken by the accused as her writing appears on the documents and the cheques were deposited at the Llandilo Post Ofice. In relation to each count, the only available rational inference is that the accused effected the transfer without her brother's knowledge for the purpose of obtaining a credit to her account, at least on a temporary basis. Count 18 184. On Thursday, 8 May 2003, cheque 1947 for $4,500 was drawn on Account 1 and credited to Account 7055, although it was not until the following day that the cheque was debited to Account 1. The cheque deposit of $4,500 increased the Account 7055 balance from $700 to $5,200. On 8 May, there were four withdrawals from Account 7055 in the total sum of $3,000. Further transactions on 9 May left a balance of $100 in Account 7055. 185. The accused said that the four withdrawals totalling $3,000 were undertaken at Mr Sukkar's direction, and the cash was given to Mr Sukkar. Mr Sukkar used the $3,000 to purchase a new home computer. The balance of $1,500 was wages paid to herself and her husband. 186. The accused's version does not explain why there were four withdrawals from Account 7055, rather than one withdrawal of $3,000, or why the $3,000 was not withdrawn directly from Account 1. Witnesses other than the accused and her husband said that wages were usually paid on a Friday, not a Thursday. Account 7055 was said to be an investment account, but it did not manage to accumulate savings and the deposit enabled immediate and substantial withdrawals to be made from the account. I am satisfied beyond reasonable doubt that the deposit was not made innocently, but for the purpose of obtaining a credit against which the accused could draw. Count 20 187. At 9:50 pm on Tuesday, 20 May 2003, $66,150 was telephone transferred from Account 1 to Account 0354 using telephone number 5233. On 19 May, cheques totalling $68,300 had been drawn on Account 0354 and credited to Account 1 by deposit at the Landilo Post Office, although it was not until 20 May that they were debited to Account 0354. The accused's writing and signature appears on the cheques and deposit slips. The ATM card activity report shows that, in the early hours of 20 May and at about 1 pm on that day, the accused was at the St Mary's Leagues Club. On 21 May, the Club paid her a cheque for gambling winnings. On 20 and 21 May she was at the Panthers Club. 188. The accused said that she could not have made the telephone transfer because she was at Westmead Hospital with her father and other family members. Her brother-in-law, Bob Khalil, was called to support the accused's claim. However, in cross-examination, he conceded that he could not be sure about the time at which the accused left the Hospital. 189. I have found that Mr Sukkar did not know about the telephone transfer of funds or "kite flying". The transfer was done late at night on a telephone to which the accused had access. The transfer benefitted the accused's account. It was associated with cheque deposits which must have been undertaken by the accused as her writing appears on the documents and the cheques were deposited at the Llandilo Post Ofice. The only available rational inference is that the accused effected the transfer without her brother's knowledge for the purpose of obtaining a credit to her account, which was almost certainly associated with gambling. Verdicts 190. Count 1 Guilty Count 2 Guilty Count 3 Guilty Count 4 Not Guilty Count 5 Guilty Count 6 Guilty Count 7 Guilty Count 8 Guilty Count 9 Guilty Count 10 Guilty Count 11 Guilty Count 12 Guilty Count 13 Guilty Count 14 Guilty Count 15 Guilty Count 16 Guilty Count 17 Guilty Count 18 Guilty Count 19 Guilty Count 20 Guilty DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.