Luke Robert Glanville(Appellant) v Michael David Harris

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 10 May 2017
• Docket Number: File Number: SCA 15 of 2015
• Date: 10 May 2017

[2017] ACTSC 110

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number: SCA 15 of 2015

Luke Robert Glanville

(Appellant)

and

Michael David Harris

(Respondent)

Representation:

Counsel

Mr J Lawton (Appellant)

Ms S McFarland (Respondent)

Cases Cited:

Adamson v O'Brien [2008] NTSC 8 ; 22 NTLR 84

Allgemeine Versicherungs-Gesellschaft Helvetia v Administrator of German Property [1931] 1 KB 67 [1931] 1 KB 672

Attorney–General's Reference (UK) (No 1 of 1980) [1981] 1 WLR 34 [1981] 1 WLR 34

Attorney-General Reference (UK) (No 1 of 2001) [2003] EWCA 1768 ; [2002] 3 All ER 840

Azzopardi v The Queen[2001] HCA 25 [2001] HCA 25 ; 205 CLR 50

Bank of New South Wales v Laing [1954] AC 135"> [1954] AC 135 .

Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (1984) 153 CLR 521

Chan Man-sin v Attorney-General of Hong Kong [1988] 1 All ER 1 [1988] 1 All ER 1

Commissioner of Stamp Duties for New South Wales v Buckle [1998] HCA 4 [1998] HCA 4 ; 192 CLR 226

Commonwealth of Australia v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146 ; 282 FLR 1

Director of Public Prosecutions v Brownlie (a pseudonym) [2015] VSCA 147 ; 45 VR 362

DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510

Elliot v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1293 ; 249 ALR 182

Evans v Bartlam [1937] AC 473 [1937] AC 473

Fitzroy v Cave[1905] 2 KB 364"> [1905] 2 KB 364

Foley v Hill (1848) 2 HL Cas 28 ; 9 ER 1002

Gartside v Inland Revenue Commissioners [1968] AC 553 [1968] AC 553

Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490 (1915) 20 CLR 490

G v H (1994) 181 CLR 387 (1994) 181 CLR 387

Harris Paper Pty Ltd v FAI General Insurance Co Ltd (1995) 8 ANZ Insurance Cases 61–276

Hearne v Street [2008] HCA 36 [2008] HCA 36 ; 235 CLR 125

Holt (1983) 12 A Crim R 1

In re Patrick [1891] 1 Ch 82 [1891] 1 Ch 82

Jones v The Queen (1997) 191 CLR 439 (1997) 191 CLR 439

Kohn (1979) 69 Cr App R 395 (1979) 69 Cr App R 395

Krishell Pty Ltd v Nilant [2006] WASCA 223 ; 32 WAR 540

Lancaster v Hyde [2016] ACTSC 50

Mapham v Bannerman [2013] ACTSC 157

Massey v The Queen [2001] FCA 1558

M v The Queen (1994) 181 CLR 487 (1994) 181 CLR 487

Parkinson v Alexander [2016] ACTSCFC 1 ; 11 ACTLR 190

Preston v Carnall [2015] ACTSC 325 ; 300 FLR 302

Raby v Ridehalgh (1855) 7 De G M & G 104 (1855) 7 De G M & G 104 at 108–9; 44 ER 41

Re Wragg [1919] 2 Ch 58 [1919] 2 Ch 58

R v Baruday [1984] VR 685

R v Baxter [2012] ACTSC 82 ; 263 FLR 160

R v Bedford [2007] SASC 276 ; 98 SASR 514

R v Dardovska [2003] VSCA 4 ; 6 VR 628

R v DM [2010] ACTSC 137

R v Heinz [2005] VSCA 124 ; 153 A Crim R 380

R v Hillier [2007] HCA 13 [2007] HCA 13 ; 228 CLR 618

R v Jack [2002] ACTSC 90 ; 148 ACTR 1

R v Jenkins [2002] VSCA 224 ; 6 VR 81

R v Kelly [2014] ACTSC 28

R v Lawrence [1972] AC 626 [1972] AC 626

R v Mallett [1978] 1 WLR 820 [1978] 1 WLR 820

R v Manning [1998] 2 Cr App R 461 [1998] 2 Cr App R 461

R v Mazaydeh (No 1) [2014] ACTSC 279

R v Mazaydeh (No 2) [2014] ACTSC 291

R v Medland (1851) 5 Cox CC 292

R v O [2010] EWCA Crim 2233 [2010] EWCA Crim 2233

R v Okanta [1997] Crim LR 451 [1997] Crim LR 451

R v Roffel [1985] VR 511

R v Roux [2015] ACTSC 307

R v Salvo [1980] VR 401

R v Sharma [1990] 1 WLR 661 [1990] 1 WLR 661

Sharp v McCormick [1986] VR 869

Whitehorn v The Queen (1983) 152 CLR 657 (1983) 152 CLR 657

World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 (1977) 16 ALR 181

Legislation Cited:

Crimes Act 1900 (ACT), s 86

Crimes Act 1958 (Vic), s 73(12), 73(13)

Evidence Act 2011 (ACT), ss 131, 131(1)(b), 137

Legislation Act 2001 (ACT), Pt 1, Dictionary

Magistrates Court Act 1930 (ACT), s 216

Theft Act 1968 (UK) c 60

Trustee Act 1925 (ACT), s 40

Court Procedures Rules 2006 (ACT), rr 2903

Criminal Code 2002 (ACT), ss 20(2), 20(3), 20(4), 22, 300, 302, 304, 304(1), 305(2), 306, 306(1), 306(1)(b), 306(2), 306(3), 308, 350, 350(2), 350(2)(1)(a)(i)

Texts Cited:

ACT Magistrates Court, Practice Direction No 1 of 2009, ‘Case Management Hearings and Committal Hearings’

Justice Arthur Emmett, ‘Practical Litigation in the Federal Court of Australia; Affidavits’ (2000) 20 Australian Bar Review 28

Model Criminal Code Officers Committee, Final Report: Chapter 3, Theft, Fraud, Bribery and Related Offences (MCCOC, Canberra 1995)

JD Heydon QC and Justice Mark Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8 ^th ed, 2016)

Darrell Barnett, ‘The nature of a beneficiary's interest in the assets of an express trust’ (2004) 10 Australian Property Law Journal 169

Dr A T H Smith, Property Offences (Sweet & Maxwell, 1994)

APPEAL — CRIMINAL LAW — Appeal from Magistrates Court — appeal against findings of guilt — appeal that findings of guilt were unsafe and unsatisfactory — theft — appropriation of property — false accounting — elements of the offence of theft — reckless — ‘accounting document’ — intention to permanently deprive — s 350 of the Criminal Code Act 2002 (ACT)

TRUSTS — DISCRETIONARY TRUSTS — Powers of the trustee — consent — ‘right to enforce the trust’ — in personam right — chose in action — intention to defeat the trust — reckless as to the intent to defeat the trust — intention to permanently deprive — transactions had no relationship to the object of the trust — s 305(2) of the Criminal Code Act 2002 (ACT)

Decision:

1. The appeal be dismissed.

2. The findings of guilt of each offence the subject of the Magistrates Court proceedings be confirmed.

3. The proceedings be remitted to the Magistrates Court for sentence.

Refshauge J

1 It is well-known that the position of trustee carries with it fiduciary obligations which will be enforced by the courts. Breaches of such obligations can result in trustees being required to pay damages. See, for example, Commonwealth of Australia v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146; 282 FLR 1 at 321; [2320].

2 The question of whether a defaulting trustee can be criminally liable for breaches of such obligations is less well-known and somewhat complex. These proceedings raise some of those issues.

3 On 4 February 2015, the appellant, Luke Robert Glanville, was found guilty of 20 counts of theft while he was the controlling mind of a company that acted as trustee and one count of false accounting. He has not been sentenced for these offences. He was acquitted of one count of passing a valueless cheque.

4 On 27 February 2015, he appealed against the findings of guilt. While no sentence has been imposed, Mr Glanville is still entitled to appeal against the Court's findings which, for the purposes of the appeal provisions of the Magistrates Court Act 1930 (ACT), constitute a conviction, as was so held by the Full Court in Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190.

Jurisdiction

5 I explained the jurisdiction of this Court to hear and determine such an appeal in Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at 303–4; [3]–[6], as follows:

• 3. This Court has jurisdiction under Pt 3.10 of the Magistrates Court Act 1930 (ACT). An appeal against a conviction for a summary offence may be brought to this Court under s 208(1)(b) of that Act and Div 3.10.2 regulates the conduct of the appeal.

• 4. An appeal under this provision is a rehearing on the evidence before the Magistrate with any other evidence that this Court permits to be adduced: Lukatela v Birch (2008) 223 FLR 1 (2008) 223 FLR 1 at [17]–[24].

• 5. I summarised the position in Peverill v Crampton [2010] ACTSC 79 at [24] where I said:

  Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:

  • 1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.

  • 2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.

  • 3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.

  • 4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.

  • 5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.

• 6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.

• 7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

• 6. Further, under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the execution or the enforcement of the order or decision that is the subject of the appeal. That may, in appropriate cases, need to be considered in the disposition of the appeal.

6 These are the principles that I shall apply.

7 In this case,...