New South Wales Supreme Court CITATION : DPP v Lee [2003] NSWSC 612 HEARING DATE(S) : 30/06/03 JUDGMENT DATE : 8 July 2003 JUDGMENT OF : James J at 1 DECISION : Appeal allowed CATCHWORDS : Justices Act - appeal from a Justice - issues of fact determined without hearing evidence PARTIES : Director of Public Prosecutions v Adam James Lee & Anor FILE NUMBER(S) : SC 13184/02 COUNSEL : P Lakatos - Plaintiff R Bonnici - Defendant SOLICITORS : SE O'Connor - Plaintiff Allars Mottee Hannaford LOWER COURT Local Court JURISDICTION : LOWER COURT W1598 473/02 VL-D2 FILE NUMBER(S) : LOWER COURT Patricia June O'Shane LCM JUDICIAL OFFICER : IN THE SUPREME COURT Revised OF NEW SOUTH WALES COMMON LAW DIVISION JAMES J Tuesday 8 July 2003 13184/02 – DIRECTOR OF PUBLIC PROSECUTIONS v ADAM JAMES LEE & 1 ORS JUDGMENT 1 HIS HONOUR: In these proceedings brought by the plaintiff the Director of Public Prosecutions against the first defendant Adam James Lee and the second defendant who is a magistrate, the plaintiff claims an order quashing orders made by the second defendant on 11 September 2002 in Burwood Local Court discharging the first defendant on two informations, namely an information charging the first defendant with the offence of obtaining money by deception on 14 November 2001, that is a charge of an offence under s 178BA of the Crimes Act, and an information charging the first defendant with attempting to obtain money by deception on 19 November 2001, that is a charge of an offence under s 178BA and s 344A of the Crimes Act. The second defendant submitted to whatever order this Court might make and the contest in this Court was between the plaintiff and the first defendant. 2 The transcript of the proceedings in the Local Court before the second defendant on 11 September 2002 was annexed to an affidavit by a solicitor in the Office of the Director of Public Prosecutions. This transcript discloses that no evidence was taken on 11 September 2002. What happened on 11 September 2002 was that counsel for the first defendant (who also appeared for the first defendant in this Court) addressed the Court in support of a submission that the charges did not disclose any offence, the police prosecutor then addressed the court and the magistrate then gave a judgment at the conclusion of which she discharged Mr Lee on both informations. 3 In his address before the magistrate in the Local Court counsel for Mr Lee stated a number of facts, which he asserted were uncontested, and also made a number of submissions. 4 The facts as stated by counsel for Mr Lee in his address before the magistrate included the following:- 5 Mr Lee was "the funeral director" of a business known as Caring Funerals. 6 On 31 October 2001 a woman named Daisy Jane Jones died. A contract was made between the business and a relative or relatives of Ms Jones that the business would perform funeral services by cremating Ms Jones' body. 7 On 1 November 2001 a man named Errol Davidson died. A contract was made between the business and a relative or relatives of Mr Davidson that the business would perform funeral services by burying Mr Davidson's body. 8 By mistake Ms Jones' body was put in the wrong coffin and on 5 November 2001, when the cremation of Ms Jones' body was to have taken place, it was Mr Davidson's body, and not Ms Jones' body, which was in fact cremated. 9 In his address counsel for Mr Lee then told the magistrate that, according to a statement by a Mr Ebbott, an employee of the business Caring Funerals (this employee's name is variously spelt in the transcript), Mr Ebbott was told on 6 November by Mr Lee about the mistake which had been made in cremating Mr Davidson's body. Counsel for Mr Lee indicated to the magistrate that his client disputed this part of Mr Ebbott's statement. 10 On 7 November 2001, Mr Davidson's body having been cremated on 5 November, Ms Jones' body was put in the coffin which had been intended to hold Mr Davidson's body. Pavers or bricks were put in the coffin to make it heavier, Ms Jones' body being lighter than Mr Davidson's would have been. On 7 November the coffin containing Ms Jones' body was buried as being a coffin containing Mr Davidson's body. 11 Counsel for Mr Lee then told the magistrate that, according to Mr Ebbott's statement, on 8 November Mr Ebbott told Mr Lee that the relatives of both deceased would have to be told about the mix-up which had occurred but Mr Lee did not agree that the relatives should be told what had occurred. Mr Ebbott subsequently spoke to a chamber magistrate and then to the Department of Health. 12 On 12 November 2001 a representative of the Department of Health, a Mr Cannata, spoke to Mr Lee about the matter. 13 On 14 November the business sent an account for $3,309.50, which included a cremation fee, to a relative of Ms Jones and on the same day the account was paid. 14 On 19 November 2001 the business sent an account for $6,585.00 to a relative of Mr Davidson for the burial of Mr Davidson. This account was never paid. 15 On 23 November 2001 the coffin which contained Ms Jones' body was opened and Ms Jones' body was exhumed and identified. The business refunded the amount which had been paid by Ms Jones' relative. 16 In the course of his address before the magistrate counsel for Mr Lee made a number of submissions, all of which I have taken into account but only some of which I will mention. Counsel submitted that the informations did not disclose any offence known at law; that what had occurred, while it might be a breach of contract and attract civil remedies, did not amount to any criminal offence; that if Mr Lee was to be regarded as having committed a criminal offence, then anyone, such as a mechanic, who did not render properly a service he had contracted to perform would be guilty of a criminal offence. 17 In his address the prosecutor submitted that the criminal law and the civil law often overlap, that is the same facts can amount to a breach of contract and also the commission of a criminal offence. 18 It was submitted by the prosecutor that there had been two contracts for the performance of a service entered into by Mr Lee as the funeral director of Caring Funerals. The prosecutor continued:- "The service to be rendered in relation to Mr Davidson was a funeral and the service to be rendered in relation to Ms Jones was a cremation. . . . Certainly from 6 (November) we will allege that Mr Lee was aware of what had occurred (that is that Mr Davidson's body had been wrongly cremated). . . . Certainly on face value the relatives of both deceased persons had arranged for a service to be taken in relation to their deceased families in a particular way and quite clearly that service was not provided. . . . The families of both persons are then billed as per the arrangements which had been originally made. Now in my respectful submission quite clearly those arrangements had not been carried out, the service had not been rendered in the way in which all of the parties had agreed. . . . So at that point in time (the times at which the accounts were rendered) those documents seek an amount of money which is outlined in the indictments for a service in relation to the funeral of each of their respective relatives which was not in my respectful submission properly rendered. So by Mr Lee's conduct we allege that the deception was allowing that bill to make its way to those persons knowing that the services which had been agreed upon had not been rendered". 19 The prosecutor finally submitted that "its open to your Worship to find a criminal offence could be made out". 20 In the course of his address the prosecutor said, apparently relying on the statement by Mr Ebbott, that Mr Lee had been aware on 6 November that Mr Davidson's body had been mistakenly cremated on 5 November. The magistrate said "that's not in contest… is it?" Counsel for Mr Lee then said that his client did not find out that Mr Davidson's body had been wrongly cremated, until he was spoken to by Mr Cannata on 12 November. The magistrate then asked "it is in contest then?" and the prosecutor, without any protest by counsel for Mr Lee, said that it was in contest when Mr Lee first became aware of a mix-up. 21 In an address in reply counsel for Mr Lee submitted that any deception had occurred, at the latest, on 6 November and that the charges could not be made out, because the necessary causal connection between any deception and the obtaining or attempted obtaining of money was missing. 22 Later on 11 September 2002 the magistrate gave a judgment. After referring to the charges, s 178BA of the Crimes Act and to counsel for Mr Lee's submission that the facts did not disclose an offence known to the law, the magistrate continued. "No evidence has yet been heard in this matter, the defence having raised at the outset the issue whether the facts disclose an offence known to law and, particularly an offence as prescribed by s 178B(a) of the Crimes Act and the Court is now considering the submissions on the point. How does the law as I have just recited it relate to the facts of this case? The accused is the managing director of Caring Funerals which business contracted with each of the families of the two deceased persons, one Miss Daisy Jones and the other Mr Errol Davidson, to dispose of the bodies by cremation and burial respectively. Through some extreme misfortune, error or negligence the bodies were mixed up so that the last mentioned, Mr Davidson, was cremated as Miss Jones and likewise Miss Jones was buried as Mr Davidson in that sequence. The facts disclose that subsequent to the cremation on 5 November 2001 and prior to the burial on 7 November 2001 the present accused was aware of the circumstances with respect to the bodies. The accused does not hide from that fact. It is noted that the accused attended to the overall management of the business, that a male employee attended to the mortuary duties including appropriate boxing of the bodies and that other staff were employed to deal with clerical duties, that is all to say that the accused was not involved in the day to day actual disposal procedures but in fact he did become so involved in relation to the burial service which was to have been conducted in respect of Mr Davidson but which in fact was a burial of Ms Jones. It is inferred that the respective families attended the funeral services for which they had contracted and that the respective bodies were disposed of appropriately, albeit not in accordance with the contracts entered into with the accused's company. Subsequently on 14 November 2001 and on 19 November 2001 accounts were rendered to each of the families. One such was paid, the other was not. The prosecution alleges that in rendering the accounts accordingly and having received a cheque in the one instance the accused has not only practised a deception upon it to the families but thereby induced the one to pay for services not properly rendered as alleged and attempted to induce the other to pay, again for services not properly rendered as alleged. The crucial question is whether by the deception as to whose body was disposed of in which ceremony the respective families were induced into paying. There is no doubt that they each contracted to pay for the disposal of the body of their respective family member and it is not suggested that they each would not have expected to be billed for those services as in fact they were and would have expected to pay as in fact one family did. Notwithstanding the accused's knowledge of the facts of the disposal of the respective deceased he did not by that deception induce or attempt to induce an act on the part of the families by which he then obtained a benefit. The deception was with respect to who was dealt with in each service not as to the actual service. At the worst on the facts as stated the accused was negligent in the discharge of his performance under the contract and that of course gives rise to civil proceedings but does not expose him to criminal prosecution. Accordingly then the Court accepts the defence submissions that the facts do not disclose an offence under law as charged or as alleged on the basis of the provisions of s 178BA(1) of the Crimes Act AND ACCORDINGLY THE ACCUSED IS DISCHARGED AGAINST THE INFORMATIONS" 23 Counsel for the plaintiff principally relied on s 104(2) of the Justices Act as affording a basis for the present proceedings. 24 Under s 104(2) of the Justices Act an informant may appeal to the Supreme Court against an order made by a magistrate in summary proceedings dismissing an information, but only "on a ground that involves a question of law alone". 25 It would appear that the proceedings before the magistrate should be characterised as summary proceedings. By virtue of s 20 of the Criminal Procedure Act and the Tables in Sch 1 to that Act, each of the charges was to be dealt with summarily, unless there was an election to have the charged offence dealt with on indictment and there is no indication in the transcript that there was any such election in relation to either offence. 26 The question of law identified by counsel for the plaintiff as being involved in the appeal was whether the magistrate had erred in law in purporting in her judgment to determine questions which were questions of fact, without having heard any evidence, that is in contravention of the procedure required by s 78(3) of the Justices Act. 27 It was submitted that the questions of fact which the magistrate purported to determine and which the magistrate could have determined only after hearing evidence, included, in the case of each information, whether there had been any deception by Mr Lee and, if there had been any deception, whether there was a causal connection between the deception and the (attempted) obtaining of money. 28 It was submitted that a further question of fact, which was quite explicitly raised in the proceedings, was when Mr Lee had first become aware of the mix-up between the two bodies, that is whether he had first become aware of this mix-up on 6 November or on 12 November. 29 Counsel for Mr Lee submitted that funeral services had been rendered by Mr Lee in each case; that the only ground of complaint against Mr Lee was that the services had not been properly rendered; that such a ground of complaint, while it might give rise to civil remedies, did not amount to the commission of a crime; that any criminal deception, if it had occurred, had occurred earlier than when the accounts were rendered; that there was no causal connection between any such deception and the obtaining or the attempted obtaining of money; that "it is a falsity and a nonsense to attach the deception to the billing"; and that "if the plaintiff's contention is correct then any service not properly rendered in breach of contract becomes a criminal benefit by deception". DETERMINATION 30 In dismissing the informations the magistrate said that she accepted the defence submission "that the facts (as stated) do not disclose an offence under law" under s 178BA(1) of the Crimes Act. It is clear that the magistrate accepted that it is an offence under s 178BA of the Crimes Act to dishonestly obtain money by a deception and the magistrate did not in her judgment suggest that there had been any failure to allege in the informations all the elements of an offence under s 178BA or of an offence under s 178BA and s 344A. 31 The ground for her decision given by the magistrate, that the facts as stated did not disclose an offence at law, presupposes that the facts as stated from the bar table by counsel for Mr Lee and by the prosecutor were clear and undisputed. However, notwithstanding the assertion made by counsel for Mr Lee that the facts were uncontested, it is quite clear from what was said by counsel for Mr Lee and by the prosecutor that important facts were not clear and undisputed. 32 One example of a fact which was not undisputed, was when Mr Lee had first become aware that Mr Davidson's body had been wrongly cremated, whether he had first become aware by the time of his conversation with Mr Ebbott on 6 November or whether he did not become aware until his conversation with Mr Cannata on 12 November. In her judgment the magistrate made a finding on this issue, which was in fact favourable to the prosecution, that Mr Lee had become aware of this matter, after the cremation of Mr Davidson's body on 5 November and before the burial of Ms Jones' body on 7 November. However, it was simply not true to say, as the magistrate said in her judgment, that "the accused does not hide from that fact". On the contrary, counsel for Mr Lee had asserted that his client did not find out that Mr Davidson's body had been wrongly cremated, until the conversation between Mr Lee and Mr Cannata on 12 November. 33 More importantly, facts which were not clear and undisputed included what were the terms and what was the relative importance of the terms in each contract for the performance of a funeral service, what were the terms of any representation made by Mr Lee by the rendering of each account for the performance of a funeral service and whether there was a causal connection between the rendering of each account and the obtaining or attempted obtaining of money. 34 As regards the terms of each contract and the relative importance of the terms of each contract, the magistrate appears to have found that each contract was a contract simply for the disposal of the body of the deceased person and that under each contract the particular method of disposal of the body desired by the family members, whether by burial or cremation, was immaterial or at least unimportant. In her judgment the magistrate said that "the respective bodies were disposed of appropriately", that "they (the family members) each contracted to pay for the disposal of the body of a respective family member" and that "the deception was with respect to who was dealt with in each service, not as to the actual service". 35 However, the prosecution case, as outlined by the prosecutor in his address to the magistrate, had been that, in the case of Mr Davidson, the contract was a contract for a funeral (that is a burial) and that, in the case of Ms Jones, the contract was a contract for a cremation, that is in each case the contract was a contract for a particular kind of funeral service, the particular kind of funeral service being a material and important part of each contract. The prosecution case as outlined by the prosecutor continued as follows: The particular kind of funeral service contracted for had not been performed, Mr Lee had been aware that the particular kind of funeral service contracted for had not been performed and by rendering each account Mr Lee had made a knowingly false representation, that is had engaged in a deception, that the particular kind of funeral service contracted for had been performed. 36 There was, accordingly, an issue of fact about the nature of the contract between Mr Lee and each relative or group of relatives, which the magistrate could not resolve and was not entitled to attempt to resolve, without first hearing evidence about each of the contracts. It might have been the case that, after hearing evidence, the magistrate could properly have come to the conclusion that each contract was, essentially, a contract for the disposal of the body of a deceased person and that under each contract the particular method of disposal was immaterial or unimportant. On the other hand, it might have been the case that, after hearing evidence, the proper conclusion for the magistrate to have reached would have been that under each contract the particular method of disposal of the body desired by the family of the deceased person was material and that by rendering an account Mr Lee should be regarded as having made a representation to the family members, which would be a knowingly false representation, that the particular method of disposal of the body desired by the family members had been carried out. 37 Similarly, there were disputed questions of fact which the magistrate could not properly resolve without having first heard evidence, about what were the terms of any representation made by Mr Lee and whether there was a causal connection between the making of any such representation and the obtaining or attempted obtaining of money. 38 In my opinion, the submission by counsel for the plaintiff that the magistrate erred in law in purporting in her judgment to determine questions which were questions of fact and which were contentious, without having heard any evidence, should be upheld. 39 Contrary to a number of submissions made by counsel for Mr Lee, this conclusion does not entail that any breach of contract will amount to a criminal offence. The same facts can, of course, amount to both a breach of contact and the commission of a criminal offence. If a party to a contract, having contracted to perform a service, does not perform the service and knowing that he has not performed the service demands payment from the other party to the contract on the basis that the service has been performed and he receives payment from the other party, then the first party will have committed a breach of contract but he will also have committed the criminal offence under s 178BA of the Crimes Act of dishonestly obtaining money by a deception, that is by a knowingly false representation, that he had performed the service for which he demanded payment. However, in most cases where a contracting party demands payment under a contract for the performance of a service, there will have been some kind of performance of the service and it will not be the case, or it will be impossible to prove, that the contracting party at the time of making the demand for payment knew that he had not performed the service. 40 I have held that the appeal should succeed. At the hearing I was requested by counsel to deliver a judgment in the first instance, without immediately making formal orders. I will accordingly defer making formal orders until after this judgment has been delivered. ********** Addendum to Judgment On 20 August 2003 the following orders were made as agreed between the parties:- 1. That pursuant to section 109(a) of the Justices Act 1902 the Orders of the Magistrate discharging as against the First Defendant informations laid against him on 22 March 2002 by the Informant Senior Constable Anastatios Georgopoulos alleging offences of Obtain Benefit by Deception and Attempt Obtain Benefit by Deception pursuant to section 178 BA(1) Crimes Act 1900 be quashed. 2. That the proceedings be remitted to the Burwood Local Court to be heard and determined according to law. The proceedings should be heard afresh by another Magistrate. 3. That the Plaintiff have an Order for costs of these proceedings in his favour. 4. That the First Defendant should have a Certificate pursuant to section 6 of the Suitors' Fund Act 1951 for the costs associated with this appeal. 5. That the Orders of this Honourable Court be stayed either pending appeal or until the expiration of 28 days if an application for leave to appeal is not lodged within that time. Ordered and entered ********** Last Modified: 08/28/2003 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.