New South Wales District Court CITATION: R v Damon Charles Miller [2009] NSWDC 331 HEARING DATE(S): 23/7/09-24/7/09, 27/7/09-31/7/09, 7/8/09, 10/8/09-11/8/09 JUDGMENT DATE: 21 August 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Knox SC DCJ Count 1 The accused is acquitted of this count. Count 2 The accused is found guilty and is convicted on this count. Count 3 DECISION: The accused is found guilty and is convicted on this count. Count 4 The accused is found guilty and is convicted on this count. Count 5 The accused is found guilty and is convicted on this count. Count 6 The accused is found guilty and is convicted on this count. CATCHWORDS: Fraud - Judge alone trial - Directions - Deception - Representation as a solicitor - Power of attorney - Use false instrument Crimes Act 1900 LEGISLATION CITED: Criminal Procedure Act 1986 District Court Rules 1973 Fleming v R (1998) 197 CLR 250 Peters v R (1991) 92 CLR 493 R v Hamilton (1991) 92 Cr App R 54 CASES CITED: R v Love (1989) 18 NSWLR 608 R v Minani [2005] NSWCCA 226 R v Perry (1993) 29 NSWLR 589 R v Simmonds (VIC CCA, 29/10/92, unreported) PARTIES: The Crown Mr Damon Charles Miller FILE NUMBER(S): 2007/12987 COUNSEL: Mr E Moberley (The Crown) Mr M Pickin (Offender) SOLICITORS: NSW DPP Nyman Gibson Stewart JUDGMENT Background 1 The Crown case is based on the following matters, many of which are disputed by the accused: 2 In August 2002, Giovanni Capparelli, then aged 62 years, was introduced to the accused, Damon Charles Miller. Mr Capparelli's wife had died in February of that year. Mr Capparelli said he was then in need of the services of a solicitor. He had issues involving the Department of Community Services (DOCS) with the residence and custody of his two children then aged 15 and 14 years. They were, at that time, living with their maternal aunt and uncle. There were also immigration issues relating to those relatives. Mr Capparelli was distressed about all of those matters. He was still mourning the loss of his wife. 3 Mr Capparelli was aware that he had a superannuation entitlement arising out of his late wife's employment. He also had some shares in various public companies (Woodside, Caltex, Normandy and Newmont Mining). 4 Mr Capparelli and Mr Miller met on a number of occasions. Mr Miller had Mr Capparelli sign a widely drafted Power of Attorney. Mr Capparelli said he did not know what the document was and said that Mr Miller did not advise him what it was. 5 Thereafter, Mr Capparelli gave Mr Miller some documents and Mr Miller, on behalf of Mr Capparelli, contacted DOCS and various institutions including the HIP Superannuation Fund and the share registries. Letters were sent to the institutions on the letterhead entitled 'Miller and Associates, Solicitors, Conveyancers and Agents'. Mr Miller was not, and never had been, a solicitor. Attached to those letters were the Power of Attorney and other completion documents signed by Mr Capparelli. Those letters and documents requested, and purported to authorise, the encashment and distribution of the superannuation entitlement and the sale of the shares. 6 The Crown alleges that a cheque for $39,633.17 (for the late Mrs Capparelli's superannuation entitlements) was sent to Mr Miller. Mr Capparelli said he did not receive any of those monies. Mr Miller said he gave him that money in cash over a period. 7 Mr Capparelli's shares were sold following documents being sent to the various share registries and broking firms. Mr Capparelli said he did not receive any of those proceeds totalling $13,358.20. Indictment 8 Against that background, the accused was arraigned on 23 July 2009 on an indictment that contained the following counts: Count 1 Between 16 February 2003 and 29 February 2004 at Bardwell Park in the State of New South Wales, did dishonestly obtain for himself a valuable thing, namely a cheque in the amount of $39,633.17 by a deception, namely that he, Damon Charles Miller, was at the time acting on behalf of Giovanni Capparelli pursuant to a power of attorney. The accused pleaded not guilty to this count, which was brought under s 178BA of the Crimes Act 1900. Count 2 Between 16 February 2003 and 19 February 2003 at Bardwell Park in the State of New South Wales, with intent to obtain for himself a valuable thing namely a cheque from HIP Superannuation Fund, did publish a statement, namely that Miller and Associates are solicitors, which statement he then knew to be false and misleading in a material particular. The accused pleaded not guilty to this count, which was brought under s 178BB of the Crimes Act 1900. Count 3 Between 9 June 2003 and 22 July 2003 at Sydney in the State of New South Wales, did dishonestly obtain for himself a financial advantage, namely deposits made by Tolhurst Noall Limited into a bank account in the name of Damon Charles Miller by a deception, namely that Damon Charles Miller was authorised to realise the value of shares belonging to Giovanni Capparelli. The accused pleaded not guilty to this count, which was brought under s 178BA of the Crimes Act 1900. Count 4 Between 31 July 2003 and 5 August 2003 at Bardwell Park in the State of New South Wales, with intent to obtain for himself a valuable thing namely a cheque from HIP Superannuation Fund, did publish a statement, namely that Miller and Associates are solicitors, which statement he then knew to be false and misleading in a material particular. The accused pleaded not guilty to this count, which was brought under s 178BB of the Crimes Act 1900. Count 5 Between 4 December 2003 and 9 December 2003 at Bardwell Park in the State of New South Wales, with intent to obtain for himself a valuable thing namely a cheque from HIP Superannuation Fund, did publish a statement, namely that David Miller is a solicitor, which statement he then knew to be false and misleading in a material particular. The accused pleaded not guilty to this count, which was brought under s 178BB of the Crimes Act 1900. Count 6 Between 31 March 2004 and 30 April 2004 at Sydney in the State of New South Wales, did use a false instrument, namely a cheque in the amount of $39,633.17 knowing it to be a false instrument, with intention of inducing another person, namely Raymond Gall, to accept the instrument as genuine and because of that acceptance to do an act to the prejudice of another, namely Giovanni Capparelli. The accused pleaded not guilty to this count, which was brought under s 300(2) of the Crimes Act 1900. Election: trial by Judge alone 9 A committal was conducted on 31st January 2007. The matter was first mentioned in the District Court in February 2007. Pursuant to section 132 of the Criminal Procedure Act 1986, the accused elected to be tried by a Judge alone. The election (exhibit T1) - made with the consent of the DPP - was made on 20 July 2009. The accused had, before making the election, sought and received advice from his barrister, namely, Mr Michael Pickin, barrister, an Australian legal practitioner within the meaning of the section. 10 After submissions on 21 July and consideration of the procedure to be followed as set out in R v Perry (1993) 29 NSWLR 589, the trial was vacated and set down for 23 July 2009. A further election for trial by judge alone was made on 22 July 2009, i.e., the day prior to the date fixed for the trial. The trial commenced on 23 July 2009. The trial had been set down on at least two prior occasions and did not proceed. Stay application 11 A stay application was made before the trial commenced as Defence counsel submitted that there was allegedly lost documentary evidence that would have corroborated the accused's case. The accused's case was that the circumstances of that loss raised aspects of the police conduct that, if accepted, would warrant the relevant evidence being excluded from the trial. Further, that those matters regarding the conduct of the police in the loss of the documents might raise issues of character that would need to be separately considered ahead of the trial. 12 That application was dismissed and reasons delivered orally and in writing. Evidence 13 It was agreed between the parties that the evidence given in the stay application by the Crown witnesses, namely, Det S/C Hetherington and by Mr Charles Miller (the accused's father) would be evidence in the trial. A transcript of the evidence from the stay proceedings was made available at the time of the commencement of the trial. Witnesses 14 The following Crown witnesses were called: Mr Giovanni Capparelli Mr Michael Bourke Mr Bray (HIP Superannuation Fund) Ms Dimitria Anastasiou (Bank of Cyprus) Mr Raymond Gall Mr Brett Gall Mr Morgan (Tolhurst Noall, stockbrokers) Det Sgt Wells Det S/C Alex Sheiles. Further affidavits were tendered. 15 The following defence witnesses were called: The accused, Damon Miller Mr Charles Miller whose evidence from the stay proceedings was tendered by consent (exhibit T35) Exhibits 16 A list of the exhibits tendered during the trial is attached. The prefix "T" was given to trial exhibits to distinguish them from exhibits tendered on the stay proceedings. Crown case: particular counts 17 The Crown case was that in August 2002 and subsequently, the accused held himself out to be a solicitor (count 2: February 2003) and that he was the proprietor of, or associated with a firm of solicitors, namely Miller and Associates (count 4: July/August 2003). 18 The accused gave Mr Capparrelli some documents to sign and Mr Capparelli did so, he said, without reading them or knowing what the documents were. One of these documents was a Power of Attorney (count 1: February 2003 – February 2004). 19 On 10 June 2003, the accused used the Power of Attorney to arrange the sale of shares owned by Mr Capparelli and for the proceeds of these sales to be paid into a Bank of Cyprus account. That account had been opened by the accused. The account was subsequently closed down. Mr Capparelli did not authorise these sales and did not receive the proceeds of the sales of the shares. 20 Shortly afterwards, Mr Capparelli gave the accused documents pertaining to his late wife's superannuation fund. There is no issue but that Mr Capparelli was entitled to receive that benefit. The accused suggested that Mr Capparelli keep some of the money ($10,000) to make himself comfortable. Mr Miller rang the relevant officer at the Public Trustee's office in Mr Capparelli's presence stating that he was Mr Capparelli's solicitor. Another document was an application for payment of the superannuation benefit (exhibit T6). Accompanying that document was a letter from the accused attaching the Power of Attorney (exhibit T4). The superannuation fund sent Miller and Associates a cheque for $39,633.17. That cheque was cashed by the accused and had been endorsed on its back with a false signature (count 3: June/July 2003). Mr Capparelli said he never received that money from the superannuation fund, nor did he authorise the payment of it to the accused. 21 Police inquiries revealed that in correspondence from the accused to the superannuation company on 17 February 2003, the accused requested that all monies be paid directly to himself on behalf of Mr Capparrelli and not into the late Mrs Capparelli's estate. The letter was on letterhead entitled 'Miller & Associates Solicitors', which was a false statement (count 5: December 2003). This letterhead was also used for correspondence with the superannuation company on 1 August, 4 August, and 8 December 2003. Specific Crown allegations 22 The Crown case was that the statements by the accused that he was a solicitor were false and misleading, known by him to be false and misleading, and done for the purposes of obtaining a benefit for himself, namely, obtaining for himself, Mr Capparelli's entitlements from the superannuation fund, as well as the distribution to Mr Miller of the proceeds of the sale of Mr Capparelli's shares. Further, that the use by Mr Miller of the Power of Attorney was invalid, that the deed was not a proper Power of Attorney, that it was not witnessed and that it was utilised for purposes which were not authorised. The deed containing the Power of Attorney was never explained to Mr Capparelli by Mr Miller. Defence case 23 The defence case is that the accused never represented that he was a solicitor. Mr Miller had prepared a carefully drafted Power of Attorney for Mr Capparelli to sign (which he did) and advised him as to the scope and extent of the power. Mr Miller said that Mr Capparelli wanted to sell his shares and for the proceeds to be put in an account in Mr Miller's name to avoid Mr Capparelli losing his Centrelink benefits and subsidised housing entitlements. Mr Miller denied receiving the proceeds of the sale of the shares for, or on behalf of, Mr Capparelli and said that, although he had received the superannuation refund for Mr Capparelli, that he had paid that money in cash to Mr Capparelli. The defence case is also that at all times the accused was acting under a Power of Attorney in relation to the totality of the counts and each count. Further that the Power of Attorney was signed by Mr Capparelli and witnessed. Procedure 24 The decision of the Court of Criminal Appeal in R v Minani [2005] NSWCCA 226 (per Hunt AJA, Spigelman CJ and Howie J) sets out the procedure to be followed in a trial of this nature. Even where there is no dispute as to the facts, including where there is an agreed statement of facts, I need to make each of the findings necessary on whether the elements of the offence have been satisfied beyond reasonable doubt to establish the guilt of the accused of the crime charged. General Directions 25 In compliance with sections 133(2) and (3) and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law: 26 As the accused has pleaded that he is "not guilty" and elected trial by Judge alone it becomes my duty and responsibility to consider whether the accused is "guilty" or "not guilty" of the charges and to return my verdicts according to the evidence that I have heard. 27 It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness's evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness's honesty; the other is the witness's accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me. 28 I have heard addresses from the Crown Prosecutor and Mr Pickin counsel for the accused. I have considered those submissions that have been made in their addresses and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case. 29 I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I acknowledge that I have very important matters to decide in this case - important not only to the accused but also to the whole community. I must, as a jury, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. 30 As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, the various exhibits including the statements of numerous witnesses not called to give oral evidence, tendered either in the Crown or defence cases. Evidence 31 I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part and reject part of that witness's evidence. That is particularly relevant in relation to Mr Capparelli's evidence. 32 The Crown case was dependent in large measure, if not totally, on the evidence of Mr Capparelli and, on some of the elements, on his evidence alone where there is no other independent evidence – for example, as to the non-payments to him of any monies by Mr Miller. Independent evidence in that context is evidence that comes from a source other than Mr Capparelli – for example, an eyewitness account or documentary evidence. There is nothing of the kind here. The question is whether the Crown has established that the relevant elements on which the Crown relies on the evidence of Mr Capparelli are satisfied beyond reasonable doubt on that evidence. 33 I warn myself that before I could convict the accused on the evidence of one witness, I must carefully scrutinise and evaluate that evidence in the light of the criticisms of it by counsel for the accused. It is only after such careful scrutiny and evaluation and if I am satisfied that the evidence is truthful, reliable and accurate, that I can use the evidence as the basis for a conviction. 34 I have given myself this direction because the case against the accused rests in substantial measure on many of the elements on the evidence of Mr Capparelli. When that is the position, the direction I have given is one that is always given to a jury. Nothing I have said means that I cannot be satisfied, after considering the warnings I have given myself, that his evidence was both truthful and reliable such that I can accept it beyond reasonable doubt. 35 I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question or proposition. I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition. Inferences 36 I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. 37 As I have set out earlier, no inference can be drawn nor finding made against Mr Miller if evidence is not called by him or on his behalf. The obligation remains on the Crown to establish its case against the accused and to call evidence in support. There is no obligation on an accused to adduce any evidence, the onus of proof cannot be reversed. Evidence of the accused 38 However, once the accused elects to give evidence, my assessment of him is the same as any other witness who gives evidence on oath and is cross-examined. As I have said, the accused bears no onus, but if I reject his evidence that does not necessarily raise a doubt in my mind. Onus of proof 39 I now direct myself on the onus of proof. This is a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for him to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt. What I find has been established beyond reasonable doubt is set out below. 40 It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found "not guilty" of the charges. Reasonable doubt 41 The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do. 42 I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, even though I may feel that he may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty. Different charges 43 The six charges are being heard together as a matter of convenience but each should be considered separately and a separate verdict is required of each. I also remind myself that the accused is only charged with the matters set out. He has not, for example, been charged with forgery nor misappropriation nor other matters which do not have the elements set out. 44 In the event that I have any doubts arising from the evidence of Mr Capparelli in relation to any one particular count, then I should take those doubts into account in my consideration of the remaining counts. Irrelevant matters to be excluded from any kind of consideration 45 Any references to the accused having been in gaol or being subject to other proceedings should be ignored and regarded as being of no relevance, the relevant test being if the Crown has established beyond reasonable doubt that the accused did the acts as set out and that the elements of each of the offences are satisfied beyond reasonable doubt. Further, that although the accused may have committed acts that may have led to consequences for others – for example, the mingling of funds by a solicitor – Mr Miller is not charged with such matters. 46 I acknowledge that, as the trial judge, I am aware of matters that a tribunal of fact such as a jury would not be privy to. I understand that there may be an implication which arises if good character is not raised. I have put that matter out of my mind and not used it in any way adverse to the accused. 47 The fact that Mr Miller refused to participate in a record of interview cannot be taken as any admission of guilt and that he, like any person, is entitled to refuse to be interviewed and no inference can be drawn against him by virtue of that refusal. Lies: consciousness of guilt 48 If I find that there have been lies told by Mr Miller orally or in written documents, I cannot use those lies as indicating a consciousness of guilt but as matters going to credit. 49 If I find that Mr Capparelli was involved in an attempt to defraud the Centrelink or the NSW Housing Department, I would need to give myself a warning that that evidence should be scrutinised with great care and caution as being (in the event of that finding) evidence of a person who may be criminally complicit in an attempt to defraud those institutions. Circumstantial case and inferences- warnings 50 In the context of the circumstantial case relied on by the Crown and the inferences sought to be drawn, I need to be satisfied that the primary facts are established beyond reasonable doubt from which the circumstantial case is said to have been established or from which inferences can be drawn. Further, that only inferences can be drawn to establish a case beyond reasonable doubt against the accused where no other inferences consistent with innocence are available. 51 There in the context of those matters where the Crown relies on the totality of the circumstances to establish a circumstantial case, there is no inherent explanation consistent with innocence. Formal matters: jurisdiction 52 In terms of factual matters under count 1, the Crown needs to establish that the offence occurred on the dates specified (which is not admitted). It is clear that whatever was done was done at either Bardwell Park or Campsie in New South Wales (which is not disputed). The events occurred in Sydney. Many of the relevant representations were made at Bardwell Park or Campsie. The content and effect of the representations are not admitted. All documents emanated from institutions and places within NSW. The accused: identification and details 53 There is no issue as to the identification of the accused as being the person involved in the actions – although clearly there is a dispute about what Mr Miller is said to have said or done and the effect of what was said and done. 54 Mr Miller filed an affidavit (sworn 15 May 2008) setting out that he had completed most or all of the academic requirements for admission to practice as a solicitor. He had, over 25 years, been a litigant in a number of civil proceedings in various divisions of the Supreme Court. Mr Miller has given evidence that he is not, and never was, a solicitor. 55 The cheque that the subject of count 6 is agreed to be a validly issued cheque. The usage relied on by the Crown is the false signature endorsed on the reverse of the cheque. Mr Capparelli said it was not his signature. It is conceded by the accused that the signature on the cheque is not Mr Capparelli's signature. Consideration of evidence 56 Details of the evidence of the various witnesses which I regarded as being of significance were circulated in an extensive draft (exhibit MFI 9) prior to my consideration of the matter and discussed with counsel to ensure that my understanding and recollection of the evidence was accurate. It is not necessary to set those matters again. Observations: Mr Capparelli 57 Mr Giovanni Capparelli gave evidence confirming the relevant matters relating to him as set out in the Crown case. Mr Capparelli needed to obtain the assistance of the interpreter/translator to read documents. On many occasions he had difficulty following the wording of documents. I did not regard the majority of his evidence or presentation as either exaggerated nor feigned. What was also clear was that Mr Capparelli has a detestation of the accused. He used a number of opportunities to make critical comments towards Mr Miller - often regardless of the question asked. I have therefore viewed his evidence with caution particularly where it was not corroborated or supported. 58 I do regard Mr Capparelli as being a witness of the truth. The exceptions to this finding relates to his evidence as to what he thought Mr Miller was to do for him and in what capacity in relation to obtaining his entitlements to his late wife's superannuation refund and whether his signature to the deed was witnessed. While I do not think that he was aware of precisely what he signed, I find that he did intend that Mr Miller was to act for him and represent him to the HIP Superannuation Fund and the document was an authorisation for that purpose and for him to ultimately receive his late wife's superannuation contributions. I was also not satisfied beyond reasonable doubt of his evidence that the document was not witnessed. 59 Mr Capparelli's memory – though at times hazy - did not appear to be defective in any material respect although, for example, he could not remember when he stopped work and went onto a sickness benefit. There were some inconsistencies between his evidence at the trial and what he had told the police in 2004. I do not regard those as being of material importance in the circumstances of this case. 60 The events and the deprivation of his shares and entitlements had clearly continued to distress and anger Mr Capparelli. That distress and anger was obviously there at the time he made his statements to the police in 2004. There was some conflict between his recollection and details set out in his statement (in 2004) to the police. Observations: Mr Miller 61 I have already indicated in the reasons given in dismissing the stay application my observations of Mr Miller that he is an intelligent, articulate and quick-thinking individual. However, in the main areas of dispute, his accounts were not supported by independent evidence and was totally contrary in many areas to that of independent, and unconnected, witnesses whose evidence I accepted. Findings: Mr Miller 62 I also found Mr Miller to be unreliable and most unimpressive in many aspects of his evidence, in particular, his account of what he and Mr Capparelli said to each other about the sale of the shares, his denials about the existence, preparation and use of the statutory declarations, his denials about not giving the proceeds of sale of the shares to Mr Capparelli, his negotiation of the superannuation refund cheque to Mr Gall and what had prompted him to take that action for the cashing of the cheque in that way. Mr Miller : Dealings with Mr Capparelli 63 It must have been perfectly obvious to Mr Miller that Mr Capparelli was a person under a series of disabilities, both innate and arising out of the then emotional situation he was in. Mr Capparelli was born in 1940 and is now almost 69 years old. He came to Australia in 1971 unable to speak or write English. He is a slightly built and softly spoken man – though ultimately voluble when pressed on matters concerning his children and the loss of his monies. He gave evidence slowly in a mix of broken English and Italian through an interpreter. He had worked as a labourer with the NSW Railways Workshop and had little formal high school education - at least in English. He said he had never had anything to do with lawyers before. He did not manifest any of the sophistication which would have been required to stage what would have been a relatively elaborate scheme to receive monies and then allege he had not as seems to be implicit in Mr Miller's case. 64 He married his wife in 1986 and had two children born in 1987 and 1988. His wife died of cancer in February 2002. He was facing an investigation and the possible loss of his children to relatives of his late wife who were causing him major difficulties. Mr Miller was aware that that was precisely why he turned to Mr Miller. 65 I find that Mr Capparelli did believe on the basis of representations made to him by Mr Miller that he was a solicitor, that Mr Miller was aware of that and thereafter did nothing to disabuse Mr Capparelli of that notion – which Mr Miller knew to be false. 66 By contrast, neither the accused's case nor his evidence is borne out nor corroborated by the other witnesses, nor the tendered documents. One of the crucial areas of the evidence relates to whether the Mr Miller represented himself to be a solicitor or, on his account, a referral agent for a solicitor. I do not accept Mr Miller's evidence in this regard. 67 The contents of those letters could only have come from someone who had a familiarity with Mr Capparelli and the detail of his personal circumstances and affairs. Mr Capparelli said, and I accept, that he had never met Mr Williams. The same observation is also relevant to the statutory declarations (exhibits T 7 and T8) – which Mr Miller denies having seen. I do not accept that evidence. The contents of those declarations are very specific and again, could only have been prepared by someone having familiarity with Mr Capparelli and his affairs. I accept Mr Capparelli's evidence that those statutory declarations were not signed nor sworn by him. I also accept the uncontradicted evidence that there was no Justice of the Peace known by the name of Davis as specified on both declarations. 68 Mr Miller denied ever receiving money from Mr Capparelli. I do not accept his evidence and accept the evidence of Mr Capparelli in that regard. 69 Where there is a conflict, I prefer the evidence of Mr Capparelli and, where appropriate or relevant, Mr Bourke to that of Mr Miller. Conflict in evidence Mr Miller and Mr Raymond Gall 70 Mr Miller denied receiving $10,000 and denied ever being indebted to Mr Gall. He said Mr Gall paid him about $29,000. Mr Miller said that Mr Gall asked for that money to be effectively advanced to Mr Gall as he had some pressing debts. Mr Gall denied that. 71 Mr Gall was cross-examined on the basis that the payments advanced were not in repayment of a loan but rather a premium paid to cash a suspicious cheque; further, that that was part of a suspect financial transaction. That was strongly denied by Mr Gall who also denied that he wrote the words, "please pay Galloping Press" or that he signed the cheque using the name "Capparelli Giovanni". Mr Miller said Mr Gall signed the cheque though he did not see that happen. Mr Miller said that he recognised that handwriting to be that of Mr Gall. 72 Mr Gall had never met Mr Capparelli. The order of the words on the signature is distinct (the surname going first) indicating a familiarity with Mr Capparelli's signature. Counsel for Mr Miller submits that Mr Capparelli's signature was on the Power of Attorney and therefore available to Mr Gall to compare. 73 Mr Gall said the main reason he cashed the cheque was because he had known the accused and his father for many years and he trusted him them. He did not think there was anything suspicious about the request or the transaction. Mr Gall denied that he thought there was anything wrong with the cheque or that there would be problems with, or on, the presentation of, the cheque. Although I have concerns about why a third party cheque for that amount was accepted by Mr Gall, it is clear that he and Mr Miller had some considerable familiarity and history – and that Mr Gall has continued to employ Mr Miller's father. He had cashed third party cheques for relatively minor amounts before. I accept Mr Gall's evidence in that regard. Mr Gall is, and was, a businessman. I accept and find that the only reason he authorised the cashing of the cheque through his account was that the payee's signature – that of Mr Capparelli – was on the cheque at the time. I accept and find that he had not met Mr Capparelli at that time. It is not necessary for me to find who signed the cheque – although that false signature was clearly signed by someone who had familiarity with Mr Capparelli's writing and the unique order of given and surnames he normally utilised in his signature. 74 I do not accept what is implicit in the defence case that Mr Gall was involved in some kind of money-laundering operation whereby Mr Gall received a commission or fee of $10,000 to negotiate the cheque, payable to Mr Capparelli, through Mr Gall's company account. I also note the Crown submissions and cross-examination of Mr Miller in that respect, namely, that had Mr Miller really wanted to negotiate the cheque urgently for Mr Capparelli, he could have paid that into the (existing) Capparelli estate account with the Bank of Cyprus and asked for an urgent clearance. Elements 75 I have identified the elements of the offences charged in a document circulated to counsel and subsequently amended. I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charges. The Crown must establish beyond reasonable doubt each of the following ingredients in relation to each count in order to establish the offences alleged: 76 Counts 1 and 3: Section 178BA - Obtaining money by deception The accused; By a deception (namely, that he was acting on behalf of Mr Capparelli pursuant to a Power of Attorney); Dishonestly (obtaining the superannuation cheque – count 1 - cashing the cheque and failure to pay thereafter (count 3); Obtained for himself; Money (being the superannuation refund (count 1) and the share proceeds (count 3)). 77 Counts 2, 4, and 5 Section 178BB - Obtaining money by false or misleading statements The accused; With intent to obtain for himself; Money (being the superannuation cheque); Made or published a statement (the letters with the letterhead and details provided); Knowing it to be false or misleading in a material particular; or Which was false or misleading in a material particular. 78 Count 6: Section 300 - Making or using false instruments The accused; Used a false instrument (the fraudulently endorsed cheque); With intent that the accused or another person would use the false instrument; To induce; Another person (Mr Gall); To accept the instrument as genuine; and Because of that acceptance, to do some act to the prejudice of that person or another person (Mr Gall would cash the cheque and that the cashing of the cheque would be to the prejudice of Mr Capparelli); Findings of fact and principles of law to be applied 79 Pursuant to sub-sections 133(2) and (3) of the Criminal Procedure Act, I am required to specify the principles of law applied by me and the findings of fact on which I have relied. These matters are set out below. Principles of law 80 The Court of Criminal Appeal in R v Minani [2005] NSWCCA 226 also established that judges conducting a trial in these circumstances need to establish and refer to the principles of law to be applied – see [33]. Deception 81 One of the main issues in this case is whether the act of the accused in obtaining and using a Power of Attorney was an act of deception. Clearly Mr Capparelli signed the document. His evidence was that he did not understand what the document was or the effect of it, nor was it explained to him, nor did he ask for any explanation of it. I accept that evidence. 82 Mr Miller's account was that it was a carefully drafted document containing the additional paragraphs as set out in the exhibit (exhibit T4). 83 Deception is defined under section 178BA(2) as including a "deception as to the present intention of the person using the deception …". It is also clear that there must be what has been described as "sufficient connection" and the obtaining of the material benefit. In my view, that is the case here. 84 I find that Mr Capparelli had no intention of providing Mr Miller with a document authorising Mr Miller to utilise the refunds of the superannuation and the share proceeds to his (Mr Miller's) own benefit, and not to the benefit of Mr Capparelli or his family members including his children. 85 I find that Mr Miller was not entitled to either of those amounts other than as the donee of a Power of Attorney for Mr Capparelli. Further that Mr Capparelli never intended nor authorised those amounts to be paid to Mr Miller or for his benefit – R v Hamilton (1991) 92 Cr App R 54; R v Simmonds (VIC CCA, 29/10/92, unreported) Dishonesty 86 The Crown needs to establish that the statements were dishonest and that the accused knew the statements were dishonest. 87 An act of the accused is regarded as dishonest if it is such according to the ordinary notions of the tribunal of fact, according to the standards of ordinary, decent people – Peters v R (1991) 92 CLR 493. Included in that assessment is the issue of whether the accused believed he had a legal right to the property obtained – R v Love (1989) 18 NSWLR 608. Here there is no evidence that the accused had an entitlement to receive and retain the funds for his own use and purposes. The only basis that he was entitled to receive the money, if at all, was pursuant to the Power of Attorney, and then for Mr Capparelli's benefit or at his direction. Consideration and findings Findings as to credit 88 The Crown bears the onus of proof beyond reasonable doubt. There is a fundamental conflict on the evidence between Mr Capparelli and Mr Miller as well as between Mr Miller and Mr Gall. I have already set out my impressions of Mr Capparelli. Mr Miller is a highly intelligent, astute individual. He was careful in giving his evidence and evinced a detailed familiarity with all the documents. He displayed considerable familiarity with the legal process and various legal requirements. 89 Although there are some gaps in the evidence of Mr Capparelli and inconsistencies in his evidence and what he told the police in 2004, I regard those to be what could be expected from a person of Mr Capparelli's present age and circumstances. I do not regard those inconsistencies as extending to the crucial elements or as warranting a doubt as to the overall veracity and accuracy of his evidence – other than where I have stated, for example, in relation to whether the deed was witnessed. While I have some doubts about Mr Capparelli's evidence in that regard (as well as inferentially that he was intending to have Mr Miller act for him in a professional capacity and that signing the power of attorney was part of that process) I do not have those doubts in relation to his other evidence on the remaining counts. Mr Capparelli's account is corroborated in most material respects by the other witnesses – especially Mr Bourke, Mr Morgan, and Mr Gall – as well as the tendered documents. 90 I find that Mr Capparelli's evidence, and that of the other witnesses, as well as the tendered documents establishes the elements of the Crown case I have referred to in these reasons beyond reasonable doubt. I specifically do not find that Mr Capparelli was intending to conceal monies in an attempt to defraud Centrelink nor the Housing Department by having monies paid to Mr Miller or at all. Course of dealings 91 I find that Mr Capparelli thought that Mr Miller was a solicitor on what Mr Miller and Mr Bourke, in Mr Miller's presence, had told him. 92 I find that Mr Miller knew that and never disabused Mr Capparelli of that situation which, he, Mr Miller, knew to be false. Mr Capparelli trusted Mr Miller against the background of his contact with him and Mr Miller's representations. Mr Capparelli's wife had died about six months earlier. He had been involved in the DOCS proceedings over the dispute concerning the residence of his 14 and 15-year-old children. He was distressed about the situation he found himself in with his in-laws who had travelled from the Philippines and who, he thought, were attempting to use the children as a means of bolstering their claims to stay in Australia. I accept and find that Mr Capparelli was highly emotional and under considerable stress when he met Mr Miller. He had limited English-speaking abilities and a limited understanding of written English. All those matters must have been apparent to Mr Miller. I also accept and find that Mr Capparelli said that he wanted to obtain the superannuation entitlement for his children. He needed and wanted someone professional to act for him in the variety of inter-connected events which confronted him. When, much later, he tried to contact Mr Miller he went to professional offices in Seven Hills and then a Chatswood legal firm where he thought he could contact Mr Miller. That desire did not extend to wanting his shares sold by Mr Miller. His denial of that was both colourful and emphatic. I accept that he may have signed some change of address forms but he did that as part of his limited understanding of what Mr Miller required to represent him on other matters. Did Mr Miller represent that he was a solicitor? 93 Both Mr Capparelli and Mr Bourke said that Mr Miller described himself to Mr Capparelli, and to others on the phone in Mr Capparelli's presence, as a solicitor. The letters on a letterhead containing the accused's surname as well as addresses and telephone numbers connected with him, and the firm's use of his surname and that the firm name included the words 'Solicitors, Conveyancers and Agents'. I accept and find that there was no such firm of solicitors nor a solicitor called Damon or David Miller. Virtually all the details on the letterhead had a geographical, personal or friendship connection with Mr Miller and aspects of his life in Campsie and Bardwell Park. Further, Mr Miller's self-description as a solicitor (on the accounts of at least Mr Capparelli and Mr Bourke which I accept) is in conflict with the letterheads of the letters tendered. The typing and content of those letters have also been careful not to include the names of any person – either under the final signature or other than as referred to as 'the writer'. 94 No evidence could be called from Mr Williams – and Mr Miller must have known by January 2005 that it would not be possible to call Mr Williams – nor from any documents or records emanating from Mr Williams' firm or any institution that would had to have been involved had the suggested arrangement existed. There is no reason advanced - other than implicitly possible self-enrichment - for Mr Williams to have been involved in a scheme that would have involved (had it eventuated) significant breaches of the Legal Professional rules. Mr Williams was a solicitor with a substantial practice. 95 Mr Miller concedes that he was the agent of Mr Capparelli but was adamant that he did not describe himself as a solicitor. I do not accept that evidence nor is it consistent with all the other material in particular with the letterhead with the name 'Miller & Associates' and the description 'Solicitors, Conveyancers and Agents' contained on that letterhead which I find was prepared by Mr Miller. I prefer the evidence of Mr Capparelli, Mr Bourke, Ms Anastasiou and Mr Morgan in that regard where they conceded that other scenarios were possible but were each of the view that Mr Miller said he was a solicitor. All the Crown witnesses were independent of each other and were from a variety of institutions. The police officers called, Det S/C Hetherington, S/C Sheiles and A/Sgt Wells were also independent and from different areas. I saw no evidence of any kind of collusion between them, nor anything consistent with the deliberate withholding of evidence from Mr Miller. The effect of the evidence of each of them on material and relevant matters was substantially the same – and in conflict with the evidence of Mr Miller and the documents said to have existed. 96 Mr Miller received funds for someone who was a client, either of his, or on his evidence, Mr Williams, and put those funds into an account in his own name. There was therefore a circumvention of all the rules relating to the payments of funds into separate trust accounts - a requirement of which Mr Miller was aware. Did that document authorise the actions of the accused? Further, did Mr Miller explain the Power of Attorney to Mr Capparelli? 97 There were a number of documents sent by 'Miller and Associates' to the HIP office (exhibits T14, T15 and T16) and the statutory declarations completed by Miller and Associates (exhibits T7 and T8). Mr Miller denies sending those documents. The letterhead of those letters makes it clear that there was a representation that a person called Miller was a solicitor and that he intended not only Mr Capparelli to be of that view but also the other institutions to whom he sent those letters concerning the shares and the superannuation refund. 98 All the contents of the statutory declaration signed by a person said to be Mr Miller and in the statutory declaration said to be signed by Mr Capparelli (although this was denied by Mr Capparelli) could have only come from somebody who had detailed discussions with Mr Capparelli and knew the personal details contained in those two documents. None of the documents were expressed in language consistent with that used by Mr Capparelli neither in his evidence nor with his presentation in giving that evidence. Further, correspondence on the 'Miller and Associates' letterhead contained items such as "the writer has observed this (the children) directly …" (exhibit T15), the letter attaching the statutory declarations referring to 'the statutory declarations of Giovanni Capparelli and myself'. This could only have been Mr Miller. The statutory declaration (exhibit T8) is signed in the name 'David Miller', a name that Mr Miller said he used earlier. 99 I accept Mr Capparelli's evidence that he had never met Mr Williams. In my view, the only possible inference is that Mr Miller, if not the author of these documents, was aware that they were false. The correspondence also contains observations about Mr Capparelli being infirm and that the writer was "privy to his affairs". Statutory declarations 100 The statutory declarations were sworn before a person said to be "John Davis". The evidence was that all inquiries revealed that there was no person registered by that name as a Justice of the Peace. I do not accept Mr Miller's denials that he never saw the statutory declarations. Were his representations dishonest and deceitful or false and misleading? 101 Mr Miller was not, and never had been, a solicitor. He knew he was not a solicitor. It was a dishonest and deceitful statement. He knew that was an important representation, not only to Mr Capparelli but also the other institutions involved. Mr Miller not only knew it was false, he knew that both Mr Capparelli and Mr Bourke were misled and that the institutions to which he made the representations would be mislead. Completing the statutory declaration and the associated share sale forms in the way that he did was the only way Mr Miller was able to get the monies paid to himself. 102 The totality of the circumstances relied on by the Crown establish the finding that the representations were made by the accused both orally and in terms of the letters and statutory declarations made. Further, that the only available inference is that those representations were made dishonestly and deceitfully and that he knew that they were dishonest and deceitful as well as being false and misleading. The context of the various aspects of dishonesty and falsity included the deceit of the HIP super fund and the institutions involved in getting the benefit of Mr Capparelli's entitlement as well as the sale of Mr Capparelli's shares. Were the payments made for Mr Miller's benefit? 103 I do not accept Mr Miller's evidence that he made cash payments to Mr Capparelli. I am satisfied that Mr Capparelli did not receive any money from, or in satisfaction of, his entitlement to his late wife's superannuation nor from the sale of the shares owned by him. Further, that all those monies were paid to, or ultimately received by, Mr Miller – in the case of the monies received from Mr Gall's company, by instalments. The proceeds of the sale of the shares went into Mr Miller's personal account. There was an estate account opened at that time. There was no reason why that cheque could not have been paid into that account – rather than Mr Gall's account – and an urgent clearance requested. I do not accept that there were the reasons for urgency advanced - particularly given the time periods which had elapsed. Mr Miller said that he waited for the cheques to clear and then paid them to Mr Capparelli in cash. There were no correlating cash withdrawals shown on the bank statements consistent with his evidence – other than for an amount of about $1000. Using false instrument (count 6) 104 The Crown relies on the fact that the cheque paid to Mr Gall was fraudulently endorsed with the signature of Mr Capparelli. The Crown relies on the fact that Mr Miller must have known it was fraudulently endorsed. 105 It is clear that the cheque contained a signature that was not Mr Capparelli's – although it is in a form (with the surname preceding the given name) that indicated a substantial familiarity with the person who signed that name with Mr Capparelli's actual signature. Mr Miller's evidence is that when he handed the cheque over, it did not contain that signature. Mr Gall's evidence is that it did – although not the words "please pay" etc. 106 I accept and find that the signature was not Mr Capparelli's and that Mr Miller knew that it was not Mr Capparelli's signature. Further, that the accused knew that he needed to have a cheque containing such a signature on it to persuade Mr Gall to cash it and make the payments to him, Mr Miller, rather than to Mr Capparelli. 107 I accept and find that the offences occurred in the time periods and between the dates referred to in each of the counts on the indictment on the basis of the oral evidence and the documents tendered. Count 1 (section178 BA) Between 16 February 2003 and 29 February 2004 at Bardwell Park in the State of New South Wales, did dishonestly obtain for himself a valuable thing, namely a cheque in the amount of $39,633.17 by a deception, namely that he, Damon Charles Miller, was at the time acting on behalf of Giovanni Capparelli pursuant to a power of attorney. 108 The issue is whether the accused dishonestly obtained for himself the superannuation cheque by a deception, namely, that he was acting pursuant to a Power of Attorney on behalf of Mr Capparelli. Clearly Mr Miller was acting pursuant to a Power of Attorney that bore the signature of Mr Capparelli. 109 Mr Capparelli wanted Mr Miller to act for him to obtain the superannuation entitlement. He signed a document knowing that it was a formal document, which Mr Miller needed to obtain that refund. Mr Capparelli may not have known precisely what that document was nor what its powers were but there is, in my view, no doubt that he was aware that he was signing a formal document authorising Mr Miller to act on his behalf. 110 I do not think that the Crown has established beyond reasonable doubt that Mr Connerly did not witness the Power of Attorney. Clearly a signature of a Mr Colm Connerly was on that deed. Also it is clear that Mr Capparelli knew of the person called "Colin" and that he had an Irish accent. If Mr Connerly remained outside in the car – as he did according to Mr Capparelli's evidence – it is difficult to see how Mr Capparelli would have known either his name (even as 'Colin') or the details of his accent. He clearly met him at stage, although it is not clear precisely when. I do not think the Crown has established that Mr Connerly did not witness the deed. Accordingly, I do not think that the Crown has established that the Power of Attorney was not a valid document or that there was a deception in that regard. 111 The accused is acquitted of this count. Count 2 (s 178BB) Between 16 February 2003 and 19 February 2003 at Bardwell Park in the State of New South Wales, with intent to obtain for himself a valuable thing, namely, a cheque from HIP Superannuation Fund, did publish a statement, namely that Miller and Associates are solicitors, which statement he then knew to be false and misleading in a material particular. 112 I find that the accused during those dates, with the intent to obtain the superannuation entitlement cheque for himself, made or published a statement, namely, letters on the letterhead containing the words 'Miller and Associates, Solicitors, Conveyancers and Agents' knowing the statements that Miller and Associates were solicitors was false or misleading in a way which he knew was going to be material and important to those to whom the letters and contents were forwarded, namely, the HIP Superannuation Fund administrators. 113 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count. Count 3 (s 178BA) Between 9 June 2003 and 19 July 2003 at Sydney in the State of New South Wales, did dishonestly obtain for himself a financial advantage, namely deposits made by Tolhurst Noall Limited into a bank account in the name of Damon Charles Miller by a deception, namely that Damon Charles Miller was authorised to realise the value of shares belonging to Giovanni Capparelli. 114 I find that the accused dishonestly obtained for himself the deposits made into his account by a deception, namely, that he was entitled to realise the value of the shares of Giovanni Capparelli. 115 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count. Count 4 (s 178BB) Between 31 July 2003 and 5 August 2003 at Bardwell Park in the State of New South Wales, with intent to obtain for himself a valuable thing namely a cheque from HIP Superannuation Fund, did publish a statement, namely that Miller and Associates are solicitors, which statement he then knew to be false and misleading in a material particular. 116 I find that the accused during the dates specified with the intent to obtain the superannuation entitlement cheque for himself made or published a statement, namely letters on the letterhead of Miller and Associates knowing the statements that Miller and Associates were solicitors was false or misleading in a way which was going to be material and important to those to whom the letters and contents were forwarded, namely the HIP Superannuation Fund administrators. 117 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count. Count 5 (s 178BB) Between 4 December 2003 and 9 December 2003 at Bardwell Park in the State of New South Wales, with intent to obtain for himself a valuable thing namely a cheque from HIP Superannuation Fund, did publish a statement, namely that David Miller is a solicitor, which statement he then knew to be false and misleading in a material particular. 118 I find that the accused during the dates specified with the intent to obtain the superannuation refund cheque for himself made or published a statement, namely, the statutory declaration, knowing the statements that David Miller was a solicitor was false or misleading in a way which was going to be material and important to those to whom the letters and contents were forwarded, namely, the HIP Superannuation Fund administrators. 119 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count. Count 6 (s 300(2)) Between 31 March 2004 and 30 April 2004 at Sydney in the State of New South Wales, did use a false instrument, namely a cheque in the amount of $39,633.17 knowing it to be a false instrument, with intention of inducing another person, namely Raymond Gall, to accept the instrument as genuine and because of that acceptance to do an act to the prejudice of another, namely Giovanni Capparelli. 120 I find that on the dates specified that the accused used the cheque for $39,633.17 endorsed with the false signature of Giovanni Capparelli which Mr Miller knew was a false signature to induce Raymond Gall to accept the cheque as genuine, to enable the cheque to be cashed into Mr Gall's company account of Hencot Pty Ltd. and thereby to enable the proceeds of payment of that cheque to be paid to the accused's account and not to Giovanni Capparelli. 121 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count. Conclusion and Orders 122 In relation to each count on the indictment, I find as follows and enter the following verdicts as indicated: Count 1 The accused is acquitted of this count. Count 2 The accused is found guilty and is convicted on this count. Count 3 The accused is found guilty and is convicted on this count. . Count 4 The accused is found guilty and is convicted on this count. Count 5 The accused is found guilty and is convicted on this count. Count 6 The accused is found guilty and is convicted on this count. ********** 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. 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