R v Fischetti and Caggiano [2002] ACTSC 16 (22 March 2002)

Last Updated: 12 April 2002

R v FRANK JOHN FISCHETTI and MARIA CAGGIANO [2002] ACTSC 16 (22 March 2002)

CATCHWORDS

CRIMINAL LAW - conspiracy to commit an offence against a law of the territory, namely the theft of approximately $150,000 - whether sufficient for Crown to establish conspiracy to commit successive thefts from bank account amounting to approximately $150,00 in total - whether evidence capable of proving that bank deceived when amounts credited to account as a consequence of fraudulent EFTPOS transactions - whether fraudulent nature of such transactions could be established by circumstantial evidence without adducing evidence from alleged victims.

PRACTICE AND PROCEDURE - application for verdict of acquittal prior to presentation of Crown case - exceptional circumstances - reliance on case statement provided by Crown and opening address - Crown support for procedure suggested - possible saving of public expense - jury discharged and verdict of acquittal recorded.

Crimes Act 1900, ss 84, 86, 287

Doney v R [1990] HCA 51; (1990) 171 CLR 207

Case stated by DPP (No 2 of 1993) [1993] SASC 4152; 70 A Crim R 323

R v Hoar [1981] HCA 67; (1981) 148 CLR 32

No. SCC 162-3 of 1998

Judge: Crispin J

Supreme Court of the ACT

Date: 22 March 2002

IN THE SUPREME COURT OF THE )

) No. SCC 162-3 of 1998

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

FRANK JOHN FISCHETTI

and

MARIA CAGGIANO

ORDER

Judge: Crispin J

Date: 22 March 2002

Place: Canberra

THE COURT ORDERS THAT:

1. the jury be discharged from returning a verdict in respect of the offence charged, namely that between 18 February and 18 June 1997 the accused conspired to commit an offence under a law of the Territory, namely theft of approximately $150,000 from the St George Bank Limited; and

2. a verdict of acquittal be recorded in favour of each accused in respect of that offence.

1. On 6 March 2002 the accused were arraigned on an indictment containing a single count alleging that between 18 February and 18 June 1997 they conspired to commit an offence under a law of the Territory, namely theft of approximately $150,000 from the St George Bank Limited.

2. Upon their arraignment both pleaded not guilty.

3. Mr Hart, who appeared for the first accused, and Mr Corr, who appeared for the second accused, took the unusual course of applying for a directed verdict of acquittal immediately after the arraignment. They argued, in essence, that the evidence that the Crown intended to adduce would not raise a prima facie case in respect of the offence charged.

4. The assessment of such a submission inevitably requires the application of a very stringent test. In a trial by jury, the judge is required to rule on any issue as to whether the evidence, if accepted by the jury, would be sufficient in law to establish the guilt of the accused in relation to the relevant charge or charges. It is for the jury to determine whether that evidence should be accepted and whether the guilt of the accused has been proven to the requisite standard. As the High Court of Australia said in Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 214-215: "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision". In the subsequent decision in Case stated by DPP (No 2 of 1993) [1993] SASC 4152; 70 A Crim R 323 King CJ observed at 326 that "it is not the function of the judge in considering [an issue of this kind] to choose between inferences which are reasonably open to the jury". The judge must decide the matter on the assumption that the jury will draw those inferences reasonably open to it on the evidence as would be most favourable to the Crown case.

5. In the present case counsel accepted that the argument should proceed upon the assumption that all of the evidence which the Crown intended to adduce would be accepted but maintained that the facts which the Crown intended to prove by reliance on such evidence would not establish the commission of the offence.

6. A criminal trial is, of course, commenced by the presentation of an indictment that charges offences in numbered `counts'. There are no pleadings akin to statements of claim in civil cases by which the Crown formally alleges the facts upon which it intends to rely. Hence, an application of this kind is usually brought only after the Crown case has been closed, or at least reached what has been described as its "high water mark", when any deficiencies in the evidence can be identified. There have been exceptional cases in which applications have been made on the basis of a Crown prosecutor's opening address to the jury, but such applications have usually been based upon a contention that the case outlined was misconceived in some fundamental respect.

7. In the present case Messrs Hart and Corr indicated that the arguments that they intended to present would raise issues of that kind. Furthermore, the criminal listing system adopted by the Court last year now requires the Crown to serve a "case statement" on the solicitors for the accused before the matter is listed for trial and it was submitted that the nature of the Crown case could be sufficiently discerned by reference to that document.

8. Whilst initially opposing such a course, the Crown prosecutor ultimately conceded that the relevant issues could be adequately ventilated by reference to the case statement and certain portions of the evidence to which he alluded in his address and, on more mature reflection, supported the approach suggested. He said that considerable public expense would be incurred in presenting all of the evidence upon which the Crown intended to rely at the trial and made the obvious point that if the foreshadowed submissions were then upheld that expense would have been substantially wasted.

9. The new criminal listing process has proven to be very successful but it was not intended to facilitate applications of this kind and, in my opinion, the course suggested will still be appropriate only in exceptional circumstances. However, having regard to the nature of the issues raised by Mr Hart and Mr Corr, the fact that it was common ground that the issues could be adequately ventilated in the manner proposed and the potential saving in public expense, I concluded that this was an exceptional case and that it was appropriate to hear the applications.

10. Whilst extensive evidence would have been required to prove some aspects of the Crown case, the essential nature of that case may be briefly stated. The two accused, who are brother and sister, obtained from the St George Bank Limited an "electronic funds transfer at the point of sale" (EFTPOS) facility for use in a car hire business which they intended to operate from the Canberra Centre. The first accused had earlier operated a number of hire car businesses and in the course of a legitimate transaction had obtained a sixteen digit visa card number from a visiting American citizen. In May 1997 a series of credit card numbers all containing the first twelve of those sixteen digits were manually punched into the EFTPOS key pad that had been provided by the bank. It was conceded that the Crown was unable to prove whether either of the accused had punched in those numbers, and acknowledged the possibility that an agent may have done so on behalf of one or the other. Some of the numbers entered in that manner proved to be the credit card numbers of people who held accounts at an American bank. In those cases monetary amounts were also entered and those entries caused corresponding amounts to be credited to a business account which the second accused had opened with the St George Bank Limited in the name of Canberra Auto Services Pty Ltd. In all, approximately $100,000 was credited to the account by reason of these transactions. They proceeded to draw upon these funds, in most cases by obtaining cash by means of an ATM card used both in Sydney, where the first accused lived, and in Canberra, where the second accused lived. There was other evidence to connect the first accused with the account. He had told a bank officer that he would be running the business and a cheque drawn on that account and made payable to one of his former clients bore his finger prints. The Crown also referred to other apparently suspicious circumstances, including the fact that there appeared to have been no significant trade carried on from the premises at which the business was to have been conducted, and that the EFTPOS machine had been used only for short periods on infrequent occasions.

11. The Crown indicated that it did not intend to call any of the customers of the American bank to give evidence that they had not authorised the transactions in question. The jury would be invited to infer non-authorisation from other facts and circumstances that would be proven in evidence, including the fact that all of the disputed transactions involved credit cards bearing the same first twelve digits, the fact that all transactions involved American citizens, the perceived unlikelihood of those people all being in Canberra and all renting cars at approximately the same time, the apparent absence of other business being carried on by the company, the fact that the transactions were entered within short periods of time on infrequent occasions and the fact that each transaction was facilitated by the manual entry of the relevant numbers.

12. The Crown explained that the charge was based, in essence, on the contention that the accused had conspired to steal approximately $150,000 from the St George Bank Limited by withdrawing sums of money on various occasions which would have amounted, in all, to such a figure. Whilst, as I have mentioned, it appears that the sums actually paid into and subsequently withdrawn from the account in question amounted to only about $100,000, the Crown alleged that when the abortive transactions were taken into account, it was clear that the scope of the conspiracy extended to obtaining sums amounting, in all, aggregate, to the larger figure.

13. Counsel for the accused argued that such a charge was inherently misconceived because, even if the EFTPOS transactions had been fraudulent, any theft would have occurred in the United States of America rather than in the Australian Capital Territory.

14. This argument was at least superficially attractive. If a customer deposits into a bank account cash stolen from a third party, the subsequent withdrawal of that money would not constitute a theft from the bank because the money would not belong to the bank and the withdrawal would not be facilitated by any deception of the bank. In other circumstances, however, the position may be different. For example, if what is received is not cash but merely an electronic entry which causes the bank to record a credit against the account, the apparent transfer might be cancelled or reversed. There may be no funds genuinely standing to the customer's credit and the money withdrawn may actually belong to the bank. If the withdrawal was permitted only because the customer had dishonestly induced the bank to believe that corresponding sums had been properly credited to the account then that conduct could, in my opinion, amount to stealing within the expanded meaning of that term provided by ss 84 and 86 of the Crimes Act 1900. It is true, of course, that if the antecedent conduct which led to the amounts being credited to the account amounted to theft from card holders in the United States of America, appropriate charges could be laid in the relevant American jurisdictions and it would be open to the Director of Public Prosecutions to decline to proceed with any further prosecution in this Territory. However, a thief does not acquire any prescriptive right to money merely by facilitating electronic entries purporting to transfer the relevant sum to another account, and a person who dishonestly takes money from such an account is not absolved from criminal responsibility for that act merely by demonstrating that the credit entries which induced the bank to permit the withdrawals had been the product of earlier criminal conduct.

15. Much may depend upon the precise circumstances proven in evidence and, on the limited material available to me on the present applications, I was unable to determine with any confidence whether the evidence was capable of establishing either that the bank had been deceived or that the monies had been obtained by means of that deception. In the circumstances, if this had been the only ground for the applications, I would have been obliged to defer any determination of them until the Crown case had been fully presented.

16. Whatever the merits of this argument, however, it is abundantly clear that the charge on which the accused have been arraigned cannot be sustained. As I have mentioned, they are charged with conspiring to commit an offence under a law of the Territory, "namely theft of approximately $150,000 from the St George Bank Limited". It is clear from the case statement and from the learned Crown prosecutor's address that there is no material capable of supporting any allegation that they formed a covert agreement to commit a single offence involving a theft of that magnitude. On the contrary, the Crown prosecutor made it clear that the object of the conspiracy was alleged to be a series of withdrawals over an extended period of time. Even if I were to assume that the evidence would be sufficient to prove those allegations, it would be apparent that each such withdrawal would have amounted to a separate offence of theft.

17. The Crown sought to draw an analogy between the present charge and charges of possessing a prohibited drug for supply and argued that there was ample authority for the proposition that such a charge was not void for duplicity merely because the accused anticipated that the quantity of the drug in his or her possession would be supplied to a variety of people over an extended period. In cases of that kind, however, the gravamen of the intended offence lies in the possession of the drug for the stated purpose and the manner in which that purpose might ultimately be fulfilled is legally irrelevant. In contrast, the gravamen of the offence alleged to be the object of the conspiracy in the present case is theft. A single substantive offence of that kind can not be alleged in relation to successive thefts over an extended period of time because each such theft is a separate offence and such a count would be void for duplicity. It is true that the offence presently charged is one of conspiracy, but the object of that conspiracy is alleged to be the commission of a single offence of theft and such a charge is equally insupportable by evidence revealing only a conspiracy to commit successive thefts of smaller sums.

18. In the alternative, the Crown argued, in essence, that I should regard the reference to "of approximately $150,000" as mere surplusage and treat the charge as alleging a conspiracy to commit an unspecified theft from St George Bank Limited. It was submitted that, since the evidence would reveal the commission of several such offences, a jury should have little difficulty in being satisfied beyond reasonable doubt that the accused must have conspired to commit at least one. The Crown maintained that it had no obligation to specify whether the offence that was the object of the conspiracy was one of the offences of theft that would be proven in evidence, or simply some other offence involving the theft of some unspecified amount on some unspecified occasion. I am unable to accept this submission.

19. In my opinion, it was incumbent upon the Crown to identify the offence which allegedly forms the subject of the conspiracy and to do so not merely by reference to a descriptive term such as "theft" but by the provision of sufficient information to enable the intended offence to be identified. The reference to the amount of approximately $150,000 is not mere surplusage but a statement identifying the property which the Crown alleges the accused conspired to steal and, as such, forms one of the essential elements of the offence charged.

20. I accept that there may be circumstances in which it is adequate to plead a conspiracy count in very broad terms. In the present case, however, it would have been wholly inappropriate to permit the Crown to rely upon such a vaguely worded indictment. Such a course would inevitably have led to substantial risk of confusion and unfair prejudice to the accused.

21. It is not appropriate for the Crown to allege that the accused have committed a number of substantive offences but to seek to circumvent difficulties in proving those offences by laying a single count of conspiracy and relying upon the combined weight of the evidence in order to support it: see, for example, the observations of the High Court of Australia in R v Hoar [1981] HCA 67; (1981) 148 CLR 32.

22. In the present case the indictment alleged a conspiracy to commit a single offence of theft from the St George Bank Limited of approximately $150,000. It is common ground that the available evidence would be incapable of establishing that the accused conspired to commit a single theft of that magnitude. Hence, the charge cannot be sustained.

23. I might also mention that the Crown faced other apparently insuperable difficulties in the prosecution of this case. The allegation of a conspiracy to commit a theft upon the St George Bank was heavily dependent upon the allegations that the relevant EFTPOS transactions had not been authorised by the credit card holders in question. Yet, as mentioned earlier, the Crown did not propose to call any of those card holders to prove that the transactions had not been so authorised. The Crown case on this issue would accordingly have been dependent upon circumstantial evidence. Hence, it would have been incumbent upon the Crown to prove beyond reasonable doubt that there could be no rational explanation for the transactions other than the guilt of the accused, or, to put it another way, that there could be no hypothesis consistent with their innocence. The evidence would have been inadequate to do so.

24. The evidence foreshadowed did not exclude the possibility that a number of American citizens may have been in Canberra at the one time because they were travelling together or had attended for a common purpose such as participation in the same conference. In that event it might have been understandable that several would have sought to hire vehicles from the same company and, if payment in advance had been required, that they might have authorised payment by giving either of the accused their credit card number in the expectation that the numbers would be punched into the key pad in the manner alleged by the Crown. In fact, the Crown did not refer to any evidence capable of establishing that the card holders or their nominees did not hire vehicles or otherwise participate in transactions giving rise to debts in the amounts debited against their cards. Consequently, there appeared to be no compelling evidence as to the falsity of the transactions and hence no evidence that at the time of the relevant withdrawals the accused were not entitled to the money apparently standing to the credit of Canberra Auto Services Pty Ltd. Furthermore, even if the company had not been entitled to some or all of the sums credited to the account, the available evidence would not have proven that the credit entries had been obtained by deceit or justified an inference that they were explicable only as the product of an antecedent conspiracy between the accused to steal corresponding sums of money from the bank.

25. There was no challenge to the indictment. That is understandable because the only count is not duplicitous on its face. It simply alleges a conspiracy to commit a single offence of theft. Consequently, there is no basis upon which it could be quashed. However, the evidence is clearly incapable of establishing the offence charged. Accordingly, it is appropriate to order, pursuant to s 287 of the Crimes Act, that the jury be discharged from returning a verdict in respect of that offence and that a verdict of acquittal be recorded.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 22 March 2002

Counsel for the Crown: Mr A Robertson

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for first accused: Mr J Hart

Solicitor for first accused: Proctor & Associates

Counsel for second accused: Mr G Corr

Solicitor for second accused: Proctor & Associates

Date of hearing: 6 March 2002

Date of judgment: 22 March 2002