The Queen v Katherine Hawcroft

• Jurisdiction: Australian Capital Territory
• Judge: Marshall J
• Judgment Date: 09 November 2009
• Court: Supreme Court of ACT
• Docket Number: No. SCC 426 of 2007
• Date: 09 November 2009

[2009] ACTSC 145

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Marshall J

No. SCC 426 of 2007

The Queen

and

Katherine Hawcroft

Counsel for the Crown: Mr C Todd

Counsel for the Accused: Mr S Gill

Martinello v The Queen[2006] ACTCA 28

R v Capewell [1995] 2 Qd R 64

R v Rigney-Hopkins (2005) 154 A Crim R 433

Rigney-Hopkins v The Queen [2007] HCA Trans 209

Attorney General's Reference (No. 1 of 1983)[1984] 3 All ER 369

Crimes Act 1900 (ACT)

CRIMINAL LAW — stealing — indictment alleging theft of various sums of money — relevant amounts withdrawn and transferred from the accused's bank accounts — whether conduct capable of constituting theft of money — whether conduct was dealing with choses in action — whether indictment capable of being made out

ORDER

THE COURT FINDS:

1. The accused is not guilty of the two hundred and thirty charges on the indictment.

1 The accused is charged with 230 counts of theft of various sums of money arising from her alleged use, for her own purposes, of trust funds held by in her capacity as trustee for five beneficiaries. The beneficiaries were her three children and two nieces.

2 Each of the charges arises under s 89 of the Crimes Act 1900 (ACT), as in force at the relevant time.

THE ADMISSIONS

3 For the purposes of the trial, the prosecution sought and gained the following admissions from the accused. These admissions appear as agreed to by the accused, and any errors of expression were contained in the document provided to the Court:

• ‘1. The accused is the daughter of the late Mr Victor Prineas (born 23/ 3/1917) who died on 5 April 1997 and the late Chrisoula Prineas (born 5/ 2/1920) who died on 2 December 1998. The late Mr Victor Prineas and the late Mrs Chrisoula Prineas had two other children, Phillip Prineas (born 6/6/1942) and Theodore Prineas (born 5/7/1947).

• 2. In about July 1994 Mr Victor Prineas and Mrs Chrisoula Prineas entered into a property settlement to distribute the assets of their marriage. One of the assets of the marriage was “Victor Lodge” which was a Motel located at 29 Dawes St Kingston ACT. This property had in 1993 been leased for a period of 10 years to Graham and Leanne Vickers (“Vickers”). The annual rental of the property was $54 000 which was paid by equal monthly instalments of approx $4567.50.

• 3. It was agreed between Mr Victor Prineas and Mrs Chrisoula Prineas that the property would be transferred to the accused by way of a deed of trust and it was to be held on trust for the benefit of the then grandchildren namely Christina Prineas (born 26/ 1/1977) and Antigony Prineas (born 9/8/1978) the children of Phillip Prineas, and Jacqueline Hawcroft (born 5/11/1982), James-Thomas Hawcroft (born 18/6/1985) and Michael Hawcroft (born 3/9/1986) the children of the accused.

• 4. On 8 ^th July 1994 a trust deed was signed by Mr Victor Prineas, Mrs Chrisoula Prineas and the accused as trustee. The terms of the trust included the following;

  • i) the beneficiaries were the grandchildren, the vesting date was the last occurring of;

    • a) the death of Victor Prineas, or

    • b) the date the youngest beneficiary (Michael born 3/9/1986) attaining the age of 25,

  • ii) the payment to Mr Victor Prineas of $1500 per month from the income derived from Victor Lodge,

  • iii) the payment of the instalments required by the lending institution in relation to the monies as borrowed to comply with orders of the Family Court,

  • iv) invest trust assets in any manner allowed by the trustee, and accumulate the whole or any part of the income from the trust until the vesting date.

  • v) that the trustee shall hold the trust assets on trust for the beneficiaries in equal shares to vest in them on the vesting date.

• 5. On or about 9 December 1994 “Victor Lodge” was transferred to the accused and from on or about that time the “Vickers” were directed to pay all rent monies from “Victor Lodge” directly into the accused's Westpac bank account number 50-2582. At the time of the transfer a mortgage in the sum of $200 000 was taken out to effect the terms of the property settlement agreed to by Mr Victor and Mrs Chrisoula Prineas. The mortgage was taken out with Howard Mortgage Trust and the financier was Permanent Trustee Australia Limited. The monthly instalments for the mortgage initially was $1323.29. The rental income received from “Victor Lodge” exceeded the funds which were required to pay the monthly mortgage payments, the monthly amount to be paid to Mr Victor Prineas until his death and any further commitments for payment of insurance, rates, land tax, administration fees, general repairs and any other ongoing costs associated with “Victor Lodge” not payable by the “Vickers”.

• 6. On 5 April 1997 Victor Prineas died and from the time of his death the rental income from ‘Victor Lodge’ continued to be paid into the account operated by the accused. (50-2582)

• 7. The accused made payments on the mortgage as required however at some point prior to May 1999 failed to make the required payments which resulted in the mortgagee commencing proceedings for the recovery of the arrears. Up until that time the “Vickers” were paying to the accused the monthly lease payments of approx $4567.50.

• 8. From about May 1999 to about September 2000 there were negotiations between the accused, her solicitors and the mortgagee's solicitors as to the payment of the arrears due on the mortgage. At some point during this time the “Vickers” were directed to pay the monthly lease payment to the mortgagee and this continued until the 3 September 2000. At this time the accused made arrangements for the payment of the arrears owed in respect of the mortgage and the “Vickers” were directed to again pay the monthly lease payments direct to the accused.

• 9. On 11 September 2000 the accused's solicitors were advised that the mortgage on the property had expired and the mortgagee was not going to renew. The accused was required to payout the mortgage, which at that stage was $215 000, by 2 October 2000 however this was later extended to the 31 October 2000.

• 10. The accused approached “Vickers” and an agreement was reached whereby the accused would sell ‘Victor Lodge’ for $700 000. At the time the sale was negotiated the accused had not and did not obtain an independent valuation of ‘Victor Lodge’. A subsequent valuation was conducted on behalf of “Vickers” and ‘Victor Lodge was valued at $915 000.

• 11. Settlement of the sale occurred on or about the 13 November 2000. The total amount paid on settlement was $749 257.99 after a number of adjustments and charges were made. From that amount after deductions for legal and other fees the balance was payable as follows; Permanent Trustee Australia Limited —$223 190.61 and K Hawcroft —$ 503 498.53.

• 12. On 14 November 2000 the accused was paid a cheque from her solicitors in the amount of $ 20000 which was the deposit which had been paid by “Vickers”.

• 13. The accused as trustee received $523 498.53 from the sale of ‘Victor Lodge'.

• 14. On 15 November 2000 the accused deposited this amount into an account at the Westpac Bank — Belconnen namely, Account number—732778-642555 Name —Mrs K Hawcroft Address c/—Discount Gallery 55 Oatley Court Belconnen —

• 15. From the 15 November 2000 until the end of December 2000 the accused withdrew the following amounts from account 732778-642555

  • i) 16 Nov 2000 — cheque — $2000

  • ii) 20 Nov 2000 — cheque made payable to “K Hawcroft” — $61500

  • iii) 21 Nov 2000 — cheque made payable “cash” — $2000

  • iv) 24 Nov 2000 — cheque made payable to “K Hawcroft — loan account” -$82709.42

  • v) 24 Nov 2000 — cheque made payable “cash” — $2000

  • vi) 26 Nov 2000 — cheque made payable to “Harvey Norman” — $1431

  • vii) 27 Nov 2000 — cheque made payable to “cash” — $1200

  • viii) 27 Nov 2000 — cheque made payable to “Chinese Inn” — $89.20

  • ix) 30 Nov 2000 — cheque made payable to “cash” — $5000

  • x) 4 Dec 2000 — cheque made payable to “cash” — $1400

  • xi) 4 Dec 2000 — cheque made payable to “cash” — $2400

  • xii) 6 Dec 2000 — cheque made payable to “Woolworths” — $110.24

  • xiii) 6 Dec 2000 — cheque made payable to “Woolworths” — $110.24

  • xiv) 6 Dec 2000 — cheque made payable to “Woolworths” — $147.26

  • xv) 6 Dec 2000 — cheque made payable to “Woolworths” — $110.24

  • xvi) 7 Dec 2000 — cheque made payable to “cash” — $2400

  • xvii) 8 Dec 2000 — cheque made payable to “cash” — $3000

  • xviii) 8 Dec 2000 — cheque made payable to “cash” — $500

  • xix) 8 Dec 2000 — cheque made payable to “Woolworths” -$457.61

  • xx) 10 Dec 2000 — cheque made payable to “Woolworths” -$415.22

  • xxi) 12 Dec 2000 — cheque made payable to “cash” — $5000

  • xxii) 13 Dec 2000 — cheque made payable to “Woolworths” — 395.79

  • xxiii) 15 Dec 2000 — cheque made payable to “cash” — $1800

  • xxiv) 15 Dec 2000 — cheque — $3000

  • xxv) 18 Dec 2000 — cheque — $1000

  • xxvi) 18 Dec 2000 — cheque — $2600

  • xxvii) 22 Dec 2000 — cheque — $2000

  • xxviii) 27 Dec 2000 — cheque — $1500

  • xxix) 28 Dec 2000 — cheque — $495.98

• 15A. At the end of December 2000 the balance of that account, 732778-642555, not including interest earned, was $336 488.70

• 16. From about January 2001 to March 2001 the accused withdrew a further $62066 from account 732778-642555 in cheques of varying amounts.

• 17. On 2 April of 2001 the accused withdrew $275 000 from account 732778-642555 leaving a balance of $2922.86. The $275 000 was deposited it into a “Westpac Money Market Fund” account in the name of “Katherine Hawcroft”.

• 18. On the 8 May 2001 the accused redeemed $140 000 from the “Westpac Money Market Fund” account and re-paid it into account 732778-642555.

• 19. The accused between 9 May 2001 and 15 May 2001 withdrew $ 14000 by cheques from account 732778-642555 and deposited $ 10000 into that...