JURISDICTION LOCATION CORAM HEARD DELIVERED FILE NO/S BETWEEN Legislation: MAGISTRATES COURT OF WESTERN AUSTRALIA - CRIMINAL JURISDICTION PERTH Magistrate Scaddan 26 to 28 SEPTEMBER 2017 and 27 to 28 AUGUST 2018 30 AUGUST 2018 NG 842/15 WA POLICE Prosecutor AND RODNEY NORMAN CULLETON Accused Criminal Code, ss, 370, 371, 378 Result: Accused is guilty of the offence. Counsel: Prosecutor Accused Solicitors: Prosecutor Accused N Stewart Self-represented WA Police Self-represented 1Case(s) referred to in judgment{s): Bowman v R [1980] WAR 65 Caxton Publishing Co Ltd v Sutherland Publishing Co Ltd [1939] AC 178 Chamberlain v The Queen [No 2] (1984) 153 CLR 514 Hitchcock v Thorpe, unreported, Library No 920204 Mich v R (1987) 162 CLR 110 Kenworthy v The Queen [No 2] [2016] WASCA 207 R v Baden-Clay [2016] HCA 35 replicated in at [18] ~ [21]. Tammy Cherie Kingdon v Western Australia [2012] WASCA 74REASONS FOR DECISION 1. A car was found in a haystack’. Given the fortress made from hay bales, someone(s) deliberately put the car there. However, how the car got in the haystack is less important than why the car was in the haystack. 2, The central question is whether the accused stole the car contrary to s. 378 of the Criminal Code? The circumstances of this offence, and the prosecution case, are by no means typical to stealing offences often associated with motor vehicles. 3. There are a number of undisputed facts. It is convenient to set out the relevant facts in a narrative form. Many of the relevant facts are either not in dispute or are the subject of uncontroverted evidence that I consider to be reliable. Save where I identify conflicting evidence on a fact, I am satisfied beyond reasonable doubt, of the facts set out below. Where I identify conflicting evidence, my stated findings should be taken to be findings beyond reasonable doubt. Evidence Events on 13 March 2015 4. On 13 March 2015, Jeffrey Lasscock and Wayne Robin, partners at Birdanco Nominees Pty Ltd t/as RSM Bird Cameron Partners (RSM Bird Cameron) instructed by the ANZ Bank, went to Goldenvale Farm, a farm outside of Narrogin, to discuss with the owner?, Bruce Dixon, a voluntary transfer of farming property to the bank. Simply put, the ANZ Bank were seeking to repossess the farm and the purpose of Mr Lasscock’s and Mr Robin's attendance was to oversee the repossession preferably on a voluntary basis, but if not then by court order. 1 Exhibits 23 and 29 2 Exhibit 28w On 12 March 2015, Mr Lasscock rented a white VE Holden Commodore with registration number 1EQK 555 (the rental car) owned by WTH Pty Ltd, t/as AVIS rent-a-car (AVIS), in his name and he and Mr Robin travelled together to see Mr and Mrs Dixon on 13 March 20153, The rental car was due to be returned on 14 March 2015. Prior to meeting with Mr Dixon, Mr Lasscock and Mr Robin went to Narrogin Police Station to inform police of their meeting with Mr Dixon and the properties they were attending. They were familiar with the high emotion of their work and wanted to pre-warn the police in case any difficulties arose. Mr Lasscock telephoned Mr Dixon and told him who he was and what they wanted, to which Mr Dixon responded “that’s not going to happen today”, he was not at the property and to telephone back in an hour. Ten minutes later Mr Dixon telephoned back and invited the two men to the property at 11.00am. Mr Lasscock and Mr Robin arrived at Goldenvale Farm at about 11.00am. At first Mr Dixon was not at the property, but arrived at about 11.15am with a young man who he introduced as William, his grandson. Mr Lasscock parked the rental car in an area near a shed‘, which he described as a workshop containing bits and pieces of farming machinery. He did not recall a tractor with hay bales. On the other hand, Mr Robin observed two tractors with forks® on the front of the tractor, both of which had hay bales on the forks with other hay bales nearby on the ground. Mr Dixon invited Mr Lasscock and Mr Robin into the house, along with William, to discuss the orderly transfer of the property to RSM Bird Cameron as agents for ANZ Bank. Mr Dixon said that “he was not going to make it easy”. Mr Lasscock discussed the options with Mr Dixon which included principally a voluntary transfer or a court order. When the meeting finished and Mr Lasscock and Mr Robin went outside and other people approached them. They saw the rental car was sutrounded by 4 Exhibit 32 (video copied by the accused from the ’60 minutes’ TV show footage or recorded by the accused) 5 His evidence is consistent with footage in exhibit 32 4hay bales and at least one tyre was deflated, although in fact three of the tyres were deflated and Mr Lasscock thought it highly unlikely he obtained three punctures driving the rental car from Perth to the farm’. Mr Dixon denied being aware of who put the hay bales around the rental car and denied doing it himself. 10.Two men approached Mr Lasscock and Mr Robin and Mr Dixon and one man greeted them as ‘Rod’. This man purported to speak on behalf of Mr Dixon, When asked by Mr Lasscock, the man denied knowing who put the hay bales around the rental car. Mr Lasscock and Mr Robin did not see who put the hay bales around the rental car or who damaged the tyres and did not see the man called ‘Rod’ enter the rental car, albeit he was standing near it. 11.At some point Mr Lasscock believed the man was recording what was happening on his mobile telephone, but in any event the man told Mr Lasscock and Mr Robin they were trespassing and they were told to leave. 12.Mr Robin telephoned the Narrogin Police Station from the side of the road sked outside of the farm and the police attended after 12.30pm. Mr Robin the man named ‘Rod’ and Mr Dixon to move the hay bales using nearby machinery, but Rod said there were no keys to the remaining tractor with the other tractor not being present at that time. He felt that they were never going to get the vehicle back on 13 March 2015 and it was taken out of his control. 13.Eventually Mr Lasscock and Mr Robin got their personal items from the rental car and left mid-afternoon around 3.30pm. 14.At approximately 12.45pm, Senior Constable Michael Budrovich, of the Narrogin Police Station, received a telephone call from Mr Robbins requesting police assistance at Goldenvale Farm. $/C Budrovich attended the farm with Constables Cleghorn and Kamboj. On turning into Dixon ° Exhibit 4Road, $/C Budrovich saw Mr Robbins and Mr Lasscock standing on the roadway, Mr Robbins pointed out a white Holden Commodore located on the right hand side of a farm shed and he saw the rental car was surrounded in hay bales. At a slightly later point, S/C Budrovich took photographs of the rental car and also observed the tyres deflated’. 15.8/C Budrovich had a conversation over the fence with a person who denied the police access to the farm. Thereafter, $/C Budrovich liaised with (former) Senior Sergeant McAlpine to obtain a Criminal Investigation Act 2006 search warrant to seize the vehicle on suspicion of damage’. Meanwhile, 8/C Budrovich had a conversation with the man (later identified as the accused) at the fence line about what had happened to the rental car and its retrieval. The accused informed S/C Budrovich that the rental car could not, or was not to, be retrieved because bringing machinery on to the farm may contaminate it and there was a total fire ban in place (which there was not), or some such thing. By this time a number of other people had started to arrive at the farm. 16.8/C Budrovich clarified the decision to leave the rental car at the property was made because it was more important to Mr Robin and Mr Lasscock to remove their personal property, there was no accurate intelligence on how many people were at the property (versus the number of police) and it was a tactical decision to dis-engage at that time. 17.S/C Budrovich did not see the accused place hay bales on the vehicle or open the vehicle. S/C Budrovich said he may have said “keep the car” or words to the effect of “vehicle staying on the property’, but that was in reference to the rental car remaining there as opposed to going anywhere else in the meantime. A video extracted by the accused from the ‘60 Minutes’ TV show? shows $/C Budrovich saying “keep the car” after he locked it, but not the context of why it was said which was explained by S/C Budrovich in his oral evidence. 7 Exhibit 4 8 Exhibit 22 8 Exhibit 3218.David McAlpine (formerly Senior Sergeant) arrived at the farm with a search warrant to seize a vehicle with registration number 1EQK 555 from a farm on Dixon Road. 19.He attended Goldenvale Farm with Constable Atkinson, He arranged for Constables Anne-Marie Needs and Michael Tinley of Williams Police Station to also attend. Given the number of other people in attendance and based on assurances by Mr Dixon that no further damage would happen to the rental car, Mr McAlpine decided de-escalation was preferable to trying to retrieve the rental car at that time. His firm view was that no one would assist to remove the hay bales and once Mr Lasscock and Mr Robin got their personal items, the situation could be addressed on another day. The rental car was secured where it was parked by Mr Lasscock earlier and police left the premises. In Mr McAlpine’s view while a criminal offence may have been committed (criminal damage), it was also a civil matter in terms of retrieving the car. 20.Constables Needs and Tinley attended Goldenvale Farm at approximately 3.15pm and on instruction from Mr McAlpine conveyed Mr Lasscock and Mr Robin to the Narrogin Police Station. Their involvement was limited. Constable Needs denied any police officer had a drawn firearm and Constable Tinley observed the rental car with hay bales around it and two deflated tyres. 21.Later during the afternoon of 13 March 2015 Mr McAlpine received a telephone call from the accused telling him that Mr Dixon was unwell and did not want police involvement and that “RSM Bird Cameron” was in big trouble. Mr McAlpine explained the vehicle was owned by AVIS and not not sure the rental RSM Bird Cameron. The accused also said that he wa car was on the property to which Mr McAlpine replied “what do you mean” (given the rental car was surrounded by hay bales, the tyres were flat and the rental car was locked). The accused responded “these things can be moved". As a consequence of this conversation, Mr McAlpine formed theview the rental car had been moved onto Dixon Road and he told the accused he was going to check it. 22.In relation to events on 13 March 2015, the accused gave a similar account in his oral evidence, although significant inconsistencies arose related to the level of his involvement on behalf of Mr Dixon, some of which was captured by him on a video recorded on a mobile telephone”. 23.The accused denied he was Mr Dixon’s spokesperson and denied that he took charge of what occurred at Goldenvale Farm. He said, in effect, Mr Lasscock and Mr Robin held themselves out to be in possession of the farm and everything on the farm on behalf of ANZ Bank. 24.Leaving aside the lack of cross-examination of Mr Lasscock and Mr Robin on this issue, it is apparent from the video and Mr Lasscock’s and Mr Robin’s evidence that at no time did they represent they were in possession of the farm on behalf of ANZ Bank. It is clear that they were attempting to negotiate a voluntary transfer as agents of the ANZ Bank, but in the absence of a voluntary transfer, the farm would be repossessed by court order. Nothing in the video supports the accused’s oral evidence of any other representation made by Mr Lasscock or Mr Robin. 25.Further, the video footage clearly demonstrates the accused talking over any other person, dictating what was to occur and holding himself out to be the spokesperson for the group, including Mr Dixon. The accused adopted much more than a supporting role to Mr Dixon. 26. Accordingly, while I accept the accused’s evidence that he did not personally place the hay bales around the rental car when it was parked at the Goldenvale Farm shed (as demonstrated by the video footage), I do not accept and I reject the accused's evidence that he adopted a mere supportive role to Mr Dixon or that Mr Lasscock or Mr Robin gave any indication that ANZ Bank were in possession of the farm or any property on the farm on 13 March 2015. ‘The accused’s evidence in the form of the video footage does not support the accused's oral evidence in this regard. 1 Exhibit 32.d’s purported 27.Further to that, I also reject as entirely fanciful the accus belief that the hay bales were placed around the rental car at the Goldenvale Farm to prevent Mr Lasscock and Mr Robin from driving around paddocks and possibly setting alight something on the farm. 28.Simply put, there is no evidence supporting this unfounded assertion, Mr Lasscock drove to other farming properties on 13 March 2015, but there is no evidence, either in examination in chief or in cross examination, he took. the rental car in to any paddocks. He drove on graded gravel roads as is s, but that is it. common in country ai 29.Further, I note that at one stage during the video footage of Mr Lasscock and Mr Robin the accused said “I don’t know how that got there” and “it’s embarrassing’ clearly in reference to the hay bales surrounding the rental car, However, prior to making this comment the accused recorded someone operating a yellow tractor placing hay bales around the rental car. Events on 16 March 20 30.On 16 March 2015, Mr McAlpine went to Dixon Road to look for the rental car. He saw the rental car was no longer parked where he had left it on 13 March 2015 and there were drag marks leading off the property. He telephoned Great Southern Towing to see if the rental car had been recovered by them and was told it had not, which prompted him to generate a report that the vehicle had been stolen. ts on 17 March 2015 31.0n 17 March 2015, the accused attended the Narrogin Police Station and spoke with Mr McAlpine and Sergeant Shuttleworth. The accused again indicated that RSM Bird Cameron where in big trouble and then used the term “PPSR’, which at the time Mr McAlpine did not know what that term sed what the term meant and meant. Mr McAlpine clarified with the a was told he had “secured registration” (or words to that effect). Mr McAlpine explained to the accused that the rental car did not belong to RSM Bird 9Cameron and the rental car was owned by AVIS or WTH Pty Ltd”. The accused again referred to RSM Bird Cameron being in big trouble and referred to the ANZ Bank and a loan book, farming in Queensland, cattle being shot and a boy being killed. ‘The accused mentioned “block and tackle’ and someone didn’t want the rental car moved. Further, the accused said that if the rental car was to be towed any machinery was to be decontaminated and there was a total fire ban in place. 32.Mr McAlpine told the accused to contact a Mr Bertina at AVIS to confirm ownership of the vehicle. 33.1 note the accused in his evidence in chief and in cross examination did not deny this conversation with Mr McAlpine. Records obtained by Mr McAlpine 34.As part of the investigation, Mr McAlpine obtained: * banking records for Deqmo Pty Ltd", which shows a transaction on 17 March 2015 for $8.00 to PPSR AFSA Barton’ paid by card ending with four digits “7346” consistent with the payment by card with card number “537 196520427346" in the name of “Rodney N Culleton” linked to an account number's for Deqmo Pty Ltd, © acertificate of title for Goldenvale farm's; * certificate of registration for the rental car's; and * certificate of registration and company history extract for Deqmo Pty Ltd”. 35.In response to questions asked by the accused concerning the history of company register for Deqmo Pty Ltd, Mr McAlpine stated that since 13 +1 Exhibit 28 * Exhibit 26 with Annexure A ‘8 Exhibit 27 — account number 600011811019 4 Exhibit 27 48 Exhibit 28 18 Exhibit 29 17 Exhibit 30 10March 2015 the accused had continually held himself out to be a director of Degmo Pty Ltd irrespective of the history of company register. 36.Again, in response to questions asked by the accused about other people who may have been involved in the offence, Mr McAlpine stated four people had come forward to implicate the accused in moving the vehicle but only Raoul Agapis was prepared to make a statement to that effect. 37.As far as he was concerned, Mr McAlpine believed there were two issues, the first was the possibility of a criminal offence of criminal damage to the vehicle and the second being a civil action (between the owner of the property and the owner or person in control of the vehicle) involving the recovery of the vehicle. Events on 28 March 2015 38.0n 28 March 2015, S/C Budrovich had a telephone conversation with the accused who stated “the vehicle had been seized under a PPS Register and that the ANZ owed money’ 39.As part of his investigation, $/C Budrovich sent an email to the CEO of the Australian Financial Security Authority (AFSA) to try and find out what the PPSR was and in response he received an email with a verification statement dated 16 March 2015 registering as a ‘security interest’ a motor vehicle with registration number 1EQK 555 to a secured party, Deqmo Pty Ltd'®, The grantor was identified as ‘The Trustee for Birdanco Practice Trust’. The contact details for the secured party include an email address ‘culleton00099@gmail.com’. 40.The Assistant Director of AFSA, John Maloney, spoke to S/C Budrovich about the Personal Property Securities Register (PPSR) and what it means and forwarded to him a PPSR Registration Number Search Certificate!®. © Exhibits 15 and 17 *® Exhibit 16 1441.This document showed a white Holden Commodore with registration number LEQK 555 registered as a ‘security interest’ with the secured party details listed as Deqmo Pty Ltd. $/C Budrovich later learnt the accused had an interest in this company. Events on 21 April 2015 42.On 21 April 2015, S/C Budrovich received further information about the rental car and went to the GM Holden dealership in Narrogin and spoke to Mr Broad who informed him that Diamond Lock and Key had authorisation in Western Australia to cut keys for Holden Commodores. Thereafter, $/C Budrovich spoke with Jordan Tipping, a locksmith at Diamond Lock and Security (previously Diamond Lock and Key), who gave him some information about cutting keys and coding, Events on 15 May 2015 43.0n 15 May 2015, the accused telephoned $/C Budrovich and spoke about getting keys cut for the rental car because he was worried about vermin in a car and wanted to move it to secure storage. S/C Budrovich said the accused “danced around” where the rental car was by using terms such as “hypothetically” 44.0n 15 May 2015, Mr Tipping was at work when a male person attended wanting to get an automotive key cut using a Vehicle Identification Number (VIN) and the person wanted a key code. Initially an apprentice was dealing with the person and he overheard the customer asking to get keys cut from a VIN, and he being concerned the apprentice would provide the incorrect information took over the service of the customer. 45.The customer introduced himself as ‘Rod Cullerton’ and when asked he produced a driver's licence with a photograph that Mr Tipping used to verify the person in front of him with the photograph. 1246.This person requested a key to be cut for a Holden Commodore. The person said he was from Narrogin. These two pieces of information piqued Mr ‘Tipping’s interest because two weeks prior he had spoken to 8/C Budrovich who had contacted him for information about getting a key cut for a VE Commodore. 47.Mr Tipping asked the person whether this was the vehicle he had heard about from $/C Budrovich, to which the person responded ‘yes’ and the person went on to say that he and other farmers were innocent. The person said he had documents on his mobile telephone [verifying ownership] and Mr Tipping asked for them to be emailed to him. 48.One of the items he saw on the mobile telephone was part of a VIN, which enabled him to establish that the vehicle was a VE Holden Commodore. He did not see, nor did he recall, the remaining numbers of the VIN. He went into the office and looked at the emails and saw that one of them had S/C Budrovich’s name on it and he telephoned the senior constable. Another email had a PPSR receipt attached to it, although at the time he did not know what this was, 49.As part of his short discussions with S/C Budrovich, the senior constable told him not to cut the key. He then went out to speak again with the man and requested to see his identification again and the person became “cagey”. Mr Tipping told the person he had contacted the police and the person was not happy. He told the person that he would not cut a key from the documents provided by the person [because he could not establish ownership of the vehicle] 50.Mr Tipping explained to the person that cutting a key would only turn the lock and not start the car and the person seemed fine with that. The person told him he wanted to move a car into a shed and not drag it and a cut key would unlock the steering column. ‘The man did not have an existing key at the time and to get a new key cut he would need to have photo identification, * Exhibits 2 and 3 13,a driver’s licence and vehicle registration papers, which Mr Tipping would take photocopies of, Mr Tipping was adamant the man referred to a VE Holden Commodore and the part of the VIN established that it was a VE Holden Commodore. 51.0n 15 May 2015, S/C Budrovich received a telephone call from Mr Tipping informing him that a male with a HV licence {noting the photograph on the licence looked like the person in front of him) wanted keys cut. This person (being the a and S/C Budrovich asked Mr Tipping to send the email to him, which he did on 19 May 2015?!, Attached to the email was a PPSR receipt. In the used) sent documents from a mobile telephone to Mr Tipping meantime, S/C Budrovich told Mr Tipping not to cut the keys. 52.In his evidence the accused admitted he went to Diamond Lock and Key with his son and Frank Bertola, but he did so only to make enquiries about getting a key cut at some unknown time in the future if it became necessary to do so and because his son wanted a key cut for another Holden Commodore. 53.During the course of cross-examination the accused was vague about Mr ‘Tipping’s evidence by saying he had no recollection of handing over his driver's licence to Mr Tipping and that he denied being asked whether the key cut was for the vehicle on the 60 Minutes’ TV Show, although he then said it was possible. 54.The accused’s response to any question asked in cross-examination about what occurred at Diamond Lock and Key was to say “it is possible”, “it is hearsay” (even when it was not), he had “little recollection” or he denied what occurred. The only question the accused directly answered was in relation to forwarding an email to Mr Tipping with the PPSR receipt attached to it, although he said he did so to be “on the record” if it was necessary to get a key cut at a later date by using the PPSR receipt. 21 Exhibit 3 1458. The accused’s reason for providing the email to Mr Tipping was completely devoid of rationality and I reject this explanation. ats on 8 June 201: 56. Trent Bertina was the agency manager for AVIS at its Hill Street, East Perth location in March 2015. He confirmed the rental car was not returned by the scheduled date and the rental car was reported stolen to the police as a result. 57.On 8 June 2015, Mr Bertina received a message from the police requesting him to contact the accused. He contacted a person he believed to be the accused who informed Mr Bertina he would call him back. When Mr Bertina spoke to this person, the person requested information about whether RSM Bird Cameron rented the rental car and this person recommended to Mr Bertina “writing off the vehicle” because it would be before the courts for two to three years. This person also requested RSM Bird Cameron to contact him and Mr Bertina then spoke with Mr Lasscock. 58.Mr Bertina maintained the conversation between he and the person occurred and considered it was the accused because the person specifically asked about the registration of the rental car and if it was rented by RSM Bird Cameron. He confirmed the rental agreement had not been extended. It was “possible” that it could have been any person on the telephone. Events on 10 and 1] June 2015 ~ the rental car is found 59.On 10 June 2015, Mr McAlpine requested Police Air Wing to overfly a property to search for the rental car as he was informed the vehicle was in hay bales near Dixon Road, which is where he tasked them to go. On 11 June 2015, a search warrant was executed and the rental car was located and recovered from a paddock at Goldenvale Farm, $/C Budrovich said 22 Exhibit 23 15when the rental car was located there was damage to the rear wheel arches. on both sides (dents and not scratches). 60. Senior Constable Daniel Plummer was one of the police officers in Police Air Wing instructed to search for a white Holden Commodore on farming property in the Cuballing area. He observed two large walls of hay bales on a farming property on Dixon Road and observed a white Holden Commodore in the middle of the wall of hay bales. He saw no other such structure during the flight from Jandakot to Cuballing or at two other properties where fly overs were conducted. 61.Sergeant Paul Watts took photographs of the area of interest and the photographs were forwarded to Narrogin Police Station. Both officers were adamant the car matched the vehicle of interest they were tasked to locate. Sergeant Watts said the GPS co-ordinates were referrable to 148 Dixon Road, Townsendale. Both officers described the rental car as “concealed” behind walls of hay bales. 62.Detective Senior Constable Phillips was the exhibits officer at a search warrant executed under the provisions of the Criminal Investigation Act 2004 on 11 June 2015 at Goldenvale Farm. He prepared an interim exhibits log in relation to one item seized, being a white Holden Commodore with registration number 1EQK 555. He observed the vehicle in the middle of a large hay stack which he estimated to be about ten metres high about 100 to 200 metres away from the farm house in a paddock. The hay bales surrounding the vehicle were moved using farming machinery and towed away by the relevant Government contractor, most likely on a tilt tow truck. He also placed secure evidence tap over the doors seals and boot. 63. Sergeant Brendan Woodford was in the officer in charge of the execution of the search warrant on 11 June 2015. He attended Goldenvale Farm with other officers, identified there was no one home, arranged for an independent officer to attend the search and left a copy of the search warrant and exhibit log in the farm letterbox. Another officer located the rental car behind a wall of hay bales approximately 200 metres from the homestead. 1664.Pursuant to s. 44 of the Criminal Investigation Act 2006, Sergeant Woodford tasked another police officer to drive a tractor with fork lifts located on the farm to remove the hay bales for the rental car to be seized. 65.Later Sergeant Woodford had a telephone conversation with Mr Dixon in the presence of Mr McAlpine. On 2 July 2015, Sergeant Woodford and Mr McAlpine telephone the accused who said he was in Queensland and he would attend the police station on 9 July 2015. On 9 July 2015, Sergeant Woodford telephone the accused who said he did not want to be questioned. 66.Senior Constable Stephen Burke was the camera operator during the execution of the search warrant. He confirmed that no properly was damaged by police during the execution of the search warrant. 67.Senior Constable Gibson is a crime scene investigator (forensic officer) and in June 2015 he was located at Great Southern Forensic Office in Albany. 68.On 17 June 2015, he attended Narrogin and completed a crime scene investigation on a white Holden Commodore with registration number IEQK 555. He took photographs of the vehicle and compiled a forensic report®. arch on the right and left sides of the He observed dents over the rear wht vehicle, but he could not ascertain the age or cause of the damage. He made no observations in relation to the vehicle tyres. Further he carried out a finger print examination on the inside and outside of the vehicle and he developed no fingerprints of any person. 69.0n 26 June 2015, Reece Tackin, loss adjuster, attended AVIS at the Perth Airport to carry out assessments on AVIS cars located there. While he was not particularly tasked to assess a white Holden Commodore with registration number 1EQK 555, he took photographs of the vehicle as he was aware that he would be tasked to as the vehicle in the future”. 2 Exhibit 7 24 Exhibit 8 1770.Because of the photographs and from his own observations, he saw there were dents over the left and right rear wheel arches. He forwarded the photographs to AVIS. Thereafter he obtained from Motown Wholesalers a pre-accident value of the vehicle being $27,000,005. In addition, as part of his report, he obtained quotes from four different repairers to repair the damage and he made recommendations as a result. He also obtained a damaged state valuation from Motown Wholesalers. When he saw the vehicle on 26 June 2015 he did not observe any damage to the tyres on the vehicle. 71.Mr Tackin described the damage to the rear wheel arches as dents or creases and he did not agree that thumbing out or flicking up the dents would be sufficient to repair the damage. When specifically asked by the accused to speculate (as a country boy) he said that the dents were caused by straps being used to pull up the vehicle to move it. Upon being asked by the accused to look at a pre-accident condition report for the vehicle, he did not agree that the pre-existing marks on the rear wheel arch were the same albeit they were in a similar place to the dents. He explained this by reason of the angle of any straps being placed and the fact that the dents were equal on both sides indicating the lift of the vehicle had occurred on both sides. 72.The assessed damage for the repairs to the driver's and passenger's wheel quarter panels was $957,842". Other investigations 73,Raoul Agapis met the accused in 2015 and met him on several occasions after this. In April 2016, he met the accused in Morley and they had a conversation about money and spoke about what happened at Mr Dixon’s place. ‘The accused told him that he arranged for someone to come out with a fork lift and move the rental car and hide it under some hay bales. The 25 Exhibit 9 22 Exhibit 14 27 Exhibit 9 18accused said he wanted to make some money from the rental car. The accused said ‘they’ deserved it because they tried to take Mr Dixon’s farm. ‘The accused also told him that he had been to a locksmith in Narrogin and ‘Mr Agapis told him that was a “really silly move”. The accused asked him about locksmiths. 74.Mr Agapis said the accused was talking about a four-door white sedan and he had seen footage of the vehicle from the “60 Minutes” TV show which was shown to him on a laptop by either the accused or Bruce Bell. 75.Mr Agapis telephoned the accused on a mobile telephone number and the accused had telephoned him from the same number, namely 0418 903 376. 76.The accused in his evidence in chief and cross examination criticised Mr Agapis and denied having the conversation as recounted by Mr Agapis saying he did not know Mr Agapis well and would not have had that type of conversation with him. 77.The accused never cross-examined Mr Agapis on the content of their conversation or the mobile telephone number used by Mr Agapis to speale with the accused. While I note the accused is self-represented, he cross- examined other witnesses up hill and down dale on a variety of matters, mostly irrelevant to any issue in dispute. In my view, the accused fully understood his obligations as a self-represented accused person and sought to invoke his rights where he sought fit to do so. The fact that he did not seek to do so with Mr Agapis and thereafter criticised Mr Agapis’ evidence in his own evidence in chief or denied the conversation occurred leads me to place significantly less weight on the accused’s evidence as it relates to Mr Agapis and on the criticisms of Mr Agapis’ evidence. 78.Paul Francione, a security liaison specialist at Telstra Corporation, prepared a spreadsheet from raw data demonstrating that on 16 March 2015 at about 12.01:44 telephone number 0418 903 376 made a call to telephone number 1800 269 03028. This call lasted four seconds, was a connected call (not 2 Exhibit 10 19including ring time) and he could not say from the records in front of him the subscriber was the accused. 79.Andrew Hatton, the State Manager for AVIS/Budget, identified a rental agreement with AVIS and Mr Lasscock which commenced on 12 March 2015. 80.In respect of a vehicle pre-condition report® for a vehicle with registration number 1EQK 555 he commented on the significance and interpretation of various markings made on the vehicle diagram prior to its rental on 12 March 2015. The significance of the markings was that on the rear tyre wheel arch the markings with a number one represented scratches of approximately 10 millimetres, He confirmed that there were no markings consistent with number five which would be indicative of dents more than 20 millimetres. 81.Mr Hatton stated the rental car was not returned by the due date being 14 March 2015 and he was aware the police were contacted later. He said there was no outstanding debt on the rental car. The Narrogin police telephoned to say the rental car had been involved in an incident. He confirmed Mr Lasscock was the only person authorised to have control over the rental car at the time and no other person had been given permission to drive or otherwise have control over the rental car. There was no lien over the rental car 82.Rachael Rea, senior advisor with the PPSR administered by the AFSA, stated the PPSR is a register of personal property interests whereby at any time a person can go online and note their interest on an item of property which is available for review to any other person who goes onto the website Registration on the register confers no rights or ownership to the property and the online service acts as a notice board to any interested person 28 Exhibit 14 2083.0n 19 May 2015, Ms Rea received an enquiry email from $/C Budrovich requesting information about the registration of a vehicle with registration number 1EQK 555. As a consequence of this she undertook various searches of the PPSR records and located the following: «a search certificate and verification statement%, which showed that a credit card payment of $8.00 was paid by a card ending in “346” paid to register an interest in a vehicle by VIN where the secured party is Deqmo Pty Lid and the grantor is listed as Birdanco Nominee Pty Ltd; * the payment was made at 12.02 on 16 March 2015; © details of the secured party where the contact name is Deqmo Pty Ltd and contact email is Culleton00099@gmail.com*: with a mailing address of 1/45 Anstey Street, South Perth; and * a verification email of the secured interest which was sent to culleton00099@gmail.com*, 84. Andrew Spencer’s statement was read into evidence and he confirmed that he attended AVIS Perth and took photographs of the VIN of the vehicle. The vehicle VIN is 6G1FB5E32EL004279%5. Assessment of the prosecution witnesses 85.S/C Budrovich presented as an honest and credible witness. I am satisfied idence truthfully and to the best of his ability. I am also he gave his © ‘isfied that to the extent that there are any inconsistencies in his evidence sa they are not matters that go to any significant issue in dispute. His evidence is reliable and can be relied upon. I do not accept that a comment made by 8/C Budrovich when he locked the rental car “keep the car” ever conferred, or were intended to confer, any property rights on any person or indicated the rental car was abandoned. This is completely inconsistent with the % Exhibits 16 and 17 51 Exhibit 18 & Exhibit 19 ® Exhibit 19 3 Exhibit 20 9 Exhibit 31 24request made by Mr McAlpine to Mr Dixon not to further damage the rental car so as the rental car could be retrieved on another day. 86.Mr Lasscock presented as an honest and credible witness, I am satisfied he gave his evidence truthfully and to the best of his ability. I am also satisfied that to the extent that there are any inconsistencies in his evidence they are not matters that go to any significant issue in dispute. His evidence is reliable and can be relied upon. The same can be said of Mr Robin. The video footage taken by the accused corroborates their evidence. 87.Mr Agapis was a plain speaking, straight forward man. He presented as a witness of the truth and while some of the times referred to in his evidence may have been at odds with other evidence, I am satisfied that the content of his evidence is otherwise credible and reliable. Importantly, notwithstanding the accused took exception to an aspect of Mr Agapis’ evidence in chief, he did not cross examine him on the content of his conversations with Mr Agapis even though he was informed he could do. 88.Mr Tackin and Mr Bertina presented as an honest and credible witnesses. I find their evidence reliable. 89.Mr Tipping was an honest and credible witness. In addition, he also struck me as a diligent and observant employee who took his p. ition seriously. I find his evidence reliable, particularly as he evidence was corroborated by the emails tendered demonstrating the forwarding of emails to him from an email address of “Rod Culleton: culleton00099@gmail.com” on 15 May 2015 at 2.22pm and 2.28pm one of which included a PPSR receipt dated 16 March 2015 (exhibits 2 and 3) 90.1 am satisfied the other prosecution witnesses were all witnesses of the truth who gave their evidence in a credible and reliable manner. Much of their evidence was uncontroverted and to the extent they were cross-examined, the cross-examination was either largely on irrelevant matters or the witnesses were unshaken in cross-examination or they were asked to speculate in an unhelpful way. 22Assessment of the accused’s evidence 91.1 have already commented where necessary on certain aspects of the accused’s evidence as it relates to certain facts in dispute. 92.However, my overall assessment of the accused’s evidence is that it was incredible, prone to hyperbole and deliberately obtuse. The best examples of this are in relation the accused’s evidence with respect to the registering of the PPSR over the rental car and the use of a bank account for Deqmo Pty Ltd. Use of the bank account for Deqmo Pty Ltd 93. The accused denied using a bank account for Deqmo Pty Ltd’ for personal use or more particularly to pay $8.00 for the registration of the security interest on the PPSR. 94.While the accused admitted $8.00 was deducted from a bank account for Degmo Pty Ltd for payment to register a security interest on the PPSR, he either denied being the person responsible or the person who made this payment. 95.He agreed he had knowledge of the registering of a security interest on the PPSR in relation to the rental car, having participated in discussions with a lawyer and an unknown person, possibly Mr Bertola, over the course of the weekend (14 and 15 March 2015). 96.He also agreed that the credit card that paid for the $8.00 transaction had his name on it. 97.He also agreed that he and his wife were the authorised persons to conduct transactions in respect of the bank account and this authorisation had not 38 Exhibit 26 23been “updated” since he resigned as a directors’. He agreed that he was not a director of Deqmo Pty Ltd and nor was he an employee or otherwise an office holder of the company. 98.However, in response to questions about if not him then who carried out ot authorised the $8.00 transaction, the accused was deliberately evasive referring to unknown authorised officer holders or his wife or “anyone” or he was not sure who made the transaction 99.The accused’s evidence in response to questions asked about other transactions on the bank statement was similarly evasive. He sought to suggest that someone had authorised the transactions, some beneficiary or shareholder, or that the transactions were for the business, notwithstanding his evidence that he was no longer authorised, not a director and not an employee and had no particular capacity with the company. 100. Contrasting this with various transactions on the bank statement, it is apparent the account in Deqmo Pty Ltd’s name was used to make numerous daily purchases when the accused was no longer a director of the company [cf. the authority for business accounts]. 101, Further, many of the transactions, including another transaction on 17 March 2015 to the Department of Transport, were conducted using a card ending in the numbers ‘7346’. Other transactions conducted using the same card number include cab fares in Melbourne and Mascot, cafes in Sydney, Narrogin Motel, City of Perth, parking fees and at petrol stations. 102. I do not accept and reject the accused’s vidence denying that he was the person responsible or that it was him personally who conducted the $8.00 transaction paying for the registration of the rental car on the PPSR on 16 March 2015. 97 Exhibit 35 24Registering the security interest on the PPSR 103. — While the accused was aware that a security interest was registered over the rental car on the PPSR, he denied being the person responsible for doing so and denied trying to register an interest in the rental car and denied trying to use the rental car as security. 104. The accused said that he left Goldenvale Farm on 13 March 2015 and he had no idea who owned the rental car or if the rental car had been abandoned. Further, the accused said he had no concerns for the rental car and it was nothing to do with him. 105. Notwithstanding this, the accused also said he spoke to a lawyer and ibly Mr Bertola, and it was agreed by Deqmo Pty some other third party, po Ltd that a PPSR charge be placed over the rental car to get a “time stamp” of events or to make a record of what happened on 13 March 2015. This occurred on 16 March 2015 and the fee to register the security interest was paid using a card with his name on it. The accused said he has done something similar in business in relation to other property. 106. ‘The accused agreed the PPSR receipt was sent to a “family” email address which he said was also the Deqmo Pty Ltd email address and he did not believe Mr Bertola had reason to the change the email address (hence it remained culleton00099@gmail.com). The accused denied suggesting Mr Bertola used a card with the accused’s name on it and an email address for the accused to secure an interest over the rental car. 107. I note that the email address detailed in the PPSR Registration Number Search Certificate, Verification Statement and email response from the PPSR* is the same email address used by the accused when sending or receiving personal communication with Mr Dixon, Mr McAlpine and Mr Tipping. %° Exhibits 17, 18 and 19 9 Exhibits 2 and 33 25108. ‘The accused’s explanation for the registering of the security interest on the PPSR over the rental car is wholly incredible and entirely inconsistent with the accused’s previous knowledge of the PPSR and the purpose of the PPSR. Further, the ambiguous account given by the accused as to how Deqmo Pty Ltd in some unspecified manner came to be named as a secured party on the PPSR not attributable to him was so devoid of rationality that 1 reject entirely his evidence on this issue. 109. This type of ambiguous account extended to other aspects of the accused’s evidence, including the accused’s denial of having nothing to do with, or had concerns about, the rental car when he left the farm on 13 March 2015. 110. _ Ifthe accused had no concerns or had nothing to do with the rental car after 13 March 2015, then there was no need for meetings with lawyers and third parties regarding the registering of a security interest on the PPSR, there was no need to contact $/C Budrovich about vermin getting in to the rental car, there was no need to suggest the rental car should be moved away from a “working shed” at the farm, there was no need to make “enquiries” about getting a key cut just in case it was necessary for some unspecified reason in the future, 111. As previously indicated, there was little about the accused’s evidence that invoked confidence in its credibility or reliability, save that I accept he may have held a concern for the general wellbeing of farmers. Circumstantial prosecution case: general principles 112. ‘The prosecution case with respect to the accused’s involvement is circumstantial and principally based on evidence connecting the accused with registering a security interest over the rental car, being at Goldenvale Farm on 13 March 2015, wanting to obtain a key to move the rental car and having thinly veiled conversations with the police and others about the rental car. 26113. The accused’s case is his denial that he moved the rental car or had nothing to do with the rental car after 13 March 2015. Further, the accused denied registering the security interest on the PPSR over the rental car and denied intending to permanently deprive the owner of rental car, 114. Save for the comments to Mr Agapis, there is no direct or physical evidence that the accused moved by himself or with others, or instructed others to move, the rental car to the hay bale fortress. 115. The prosecution contends, and the accused denies, that the only rational inference to be drawn from found facts established by the evidence is that the accused is the person who registered a security interest on the PPSR over the rental car. 116. Similarly, the prosecution contends, and the accused denies, that the only rational inference to be drawn from found facts established by the evidence is that the accused in registering the security interest on the PPSR intended to fraudulently take or convert the rental car by intending to use the rental car as a security. And further the found facts also supports the only rational inference that the accused intended to permanently deprive the owner of the rental car. 117, The prosecution case is that the accused stole the rental car by fraudulently taking or converting the rental car to his own use and the prosecution rely upon the deeming provisions in s. 371(2) of the Criminal Code to establish the requisite intent, in particular (a), (c) and (e}. 118, As I understood it, the prosecution's primary case is not that the accused placed hay bales around the rental car or even physically moved the rental car, but that the rental car was dealt with by the accused in some other manner. I say this noting that the prosecution also referred to s. 7 of the Criminal Code as it relates to the moving of the rental car. 119. However, the prosecution’s secondary case is that pursuant to s. 10D of the Criminal Code, if the court is not satisfied beyond reasonable doubt 27the accused stole the rental car, the evidence is capable of proving beyond reasonable doubt that the accused attempted to steal the rental car. 120. The principles concerning prosecution cases that tum on circumstantial evidence are set out in R v Baden-Clay [2016] HCA 35 at [46] - [47], summarised in Kenworthy v The Queen [No 2) [2016] WASCA 207 at [18] - [21], specifically in [18] points 1 to 4 121. In particular, I note in Kenworthy at [19] reference to Chamberlain v The Queen [No 2] (1984) 153 CLR 514, at 536. Findings of primary facts The rental car 122. At all times from 12 March 2015 to 11 June 2015, the rental car was owned by WTH Pty Ltd. 123. The rental car was subject to a rental agreement between AVIS and Mr Lasscock. ‘The rental car was not returned to AVIS on 14 March 2015, as required by the rental agreement. 124. On 13 March 2015, the rental car was parked in front of a shed on Goldenvale Farm, 148 Dixon Road, Townsendale. 125. On the same day the rental car could not be moved by Mr Lasscock or the attending police officers because it was surrounded by large hay bales and had three flat tyres. The car was locked and the only person or persons with a key was Mr Lasscock and WTH Pty Ltd 126. Between 13 and 16 March 2015, the rental car was moved from near the shed on Goldenvale Farm where it had been parked and locked by Mr Lasscock to an unknown location. 28127. Mr Lasscock and WTH Pty Ltd did not move the rental car between 13 and 16 March 2015, nor did they consent for anyone else to move the rental car. 128. On 10 June 2015, the rental car was located approximately 200 metres from the Goldenvale farm shed in a paddock surrounded by a fortress of large hay bales and covered in a tarpaulin and loose hay. 129, The pre-accident value of the rental car was $27,000.00. 130. Between 13 March 2015 and 11 June 2015, the rental car sustained damage to both rear wheel arches that was not there when the rental car was rented by Mr Lasscock on 12 March 2015. The assessed damages for repair of the damage was $957.84. Registering a security interest on the rental car 131. Between 13 and 16 March 2015 the accused had a discussion with a lawyer and some unspecified third party to register a security interest on the PPSR over the rental car. 132, On 17 March 2015, the accused told Mr McAlpine he had “secured registration” in respect of the rental car and RSM Bird Cameron were in “big trouble”. 133. On the same day banking records for Deqmo Pty Ltd showed a transaction for $8.00 paid to PPSR AFSA Barton with a card number in the name of “Rodney N Culleton” linked to an account number for Deqmo Pty Ltd where the accused was previously a director and secretary of Deqmo Pty Ltd. 134. The accused and his wife were authorised bank signatories to the Deqmo Pty Ltd bank account and those details had not been changed as at 16 March 2015. 29135. The card ending with numbers “346” had been used to conduct numerous transactions from the same bank account in March 2015. The accused used the card to conduct previous transactions from the same bank account. 136. _ AFSA confirmed the registcring of a security interest in the rental car on 16 March 2015 where the secured party was Deqmo Pty Ltd and the grantor was as Birdanco Nominee Pty Ltd. Further, a payment of $8.00 was made on 16 March 2015 with a card ending in the numbers “346”. The contact details for the secured party was culleton00099@gmail.com and a verification email of the secured interest was sent to the same address. 137. The accused used the email address ‘culleton00099@gmail.com’ to send and receive personal communication with Mr Dixon, Mr McAlpine and Mr Tipping. 138. On 16 March 2015, telephone number 0418 903 376 made a telephone call to telephone number 1800 269 030. 139, On 28 March 2015, the accused said to S/C Budrovich the rental car had been seized under a PPSR and the ANZ owed money. 140. Mr Agapis telephoned the accused and the accused telephoned him on telephone number 0418 903 376. 141. The only reasonable inference to be drawn from the found facts is that the accused registered a security interest on the PPSR in respect of the rental car using Deqmo Pty Ltd as the secured party and listed the grantor as Birdanco Nominee Pty Ltd. The attempted cutting of a key for the rental car 142, Diamond Lock and Key have authorisation to cut keys for Holden Commodores in Western Australia, 143. The rental car is a 2014 Holden Commodore. 30144. On 15 May 2015, the accused spoke with S/C Budrovich about getting keys cut for a car because he was worried about vermin and want to move it to secure storage, 145. On the same day, Mr Tipping identified the accused from a driver's licence produced by the accused when the accused attended Diamond Lock Key. The accused said he was from Narrogin and the accused wanted an automotive key cut for a Holden Commodore and key code using only a VIN. 146. Mr Tipping confirmed with the accused if it was the same car he had heard about from $/C Budrovich to which the accused said “yes’ and the accused said the famers were innocent. 147. Mr Tipping saw part of the VIN and identified the vehicle was a VE Holden Commodore, 148. The accused sent an email to Mr Tipping with a PPSR receipt attached to it purporting to use this information as demonstrating ownership of the car. 149, The accused did not have an existing key to the car. 150. The accused told Mr Tipping he wanted to move a car into a shed and not drag it 151. The only reasonable inference to be drawn from the found facts is that the accused wanted a key cut for the rental car. The purpose for getting the key cut was to move or further move the rental car, Knowledge of the whereabouts of the rental car 152, On 13 March 2015, the accused told Mr McAlpine he was not sure the rental car was on the property (Goldenvale Farm) and these things can be moved, and RSM Bird Cameron was in big trouble. 31153. On 15 May 2015, the accused spoke with S/C Budrovich, after S/C Budrovich spoke with Mr Tipping, about getting keys cut for a car because he was worried about vermin and wanting to move it to secure storage. The accused spoke in hypotheticals. 154. On the same day the accused told Mr Tipping he wanted to move a car to a shed and he wanted to get a key cut for a Holden Commodore using a PPSR receipt as evidence of ownership of the car. 155. The accused told Mr Agapis he had arranged for someone to come out and move a car and hide it under some hay bales, The accused also said he wanted to make some money from the car and they deserved it because they tried to take Mr Dixon’s farm. 156. The only reasonable inference to be drawn from the found facts is that the accused knew where the rental car was located between 13 March 2015 and 11 June 2015. Concealment of the rental car 157. On 13 March 2015, the rental car was left parked in front of a shed on Goldenvale Farm with three flat tyres, surrounded by large hay bales and locked. 158. On 16 March 1015, Mr McAlpine observed the rental car was no longer parked where it had been left on 13 March 2015. 159. On 10 June 2015, following a tip off from a member of the public, Mr McAlpine tasked Police Air Wing to fly over a section of land. 160. Aerial photographs from Police Air Wing showed the rental car surrounded by a fortress of hay bales and covered with a tarpaulin and loose hay in a paddock on Goldenvale Farm. 32is that 161. The only reasonable inference to be drawn from the found fact from a position in front of the shed on the intention in moving the rental c: Goldenvale Farm to behind a wall of hay bales and under a tarpaulin in the middle of a farming paddock was to conceal the rental car. Conversation with Mr Agapis 162. The accused told Mr Agapis he had arranged for someone to come out and move a car and hide it under some hay bales. The accused also said he wanted to make some money from the car and “they” deserved it because they tried to take Mr Dixon’s farm. 163. The accused also told Mr Dixon that he had been to a locksmith in Narrogin. 164. Mr Agapis identified the car from footage shown to him by the accused on a laptop from the “60 Minutes” TV show. 165. The only reasonable inference to be drawn from the above facts is that the accused was referring to the rental car when he spoke with Mr Agapis and the reference to “they” was in relation to RSM Bird Cameron or ANZ Bank. The conversation with Mr Bertina 166. On 8 June 2015, Mr Bertina spoke with a person after being informed by police that the accused wanted to speak with him. 167. Mr Bertina telephoned this person and after the person telephoned him back, the person wanted to know if RSM Bird Cameron rented the rental car and recommended the rental car be “written off” as it would be before the courts for two to three years. 168. On 17 March 2018, the accused told Mr McAlpine he had “secured registration” in respect of the rental car and RSM Bird Cameron were in big 33trouble. Mr McAlpine told the accused the rental car was owned by AVIS and to speak with Mr Bertina. 169. On 28 March 2015, the accused said to S/C Budrovich the rental car had been seized under a PPSR and the ANZ owed money. 170. The accused told Mr Agapis he had arranged for someone to come out and move a car and hide it under some hay bales. The accused also said he wanted to make some money from the car and they deserved it because they tried to take Mr Dixon’s farm. 171. The only reasonable inference to be drawn from the found facts is that the person Mr Bertina spoke with on 8 June 2015 was the accused and that the reference to the “writing off” the rental car was a reference to making an insurance claim for the rental car. Determination 172, Pursuant to s. 370 of the Criminal Code a thing capable of being stolen includes every inanimate thing whatever which is the property of any person, and which is movable. 173. — Pursuant to s. 378 of the Criminal Code any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment of 7 years. 174, Pursuant to s. 371(1) of the Criminal Code a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to ste that thing or that property. Relevantly, pursuant to s. 371(2) of the Criminal Code a person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following (relevant) intents: (a) an intent to permanently deprive the owner of the thing or property of it or any part of it; or 34(c} an intent to use the thing or property as a pledge or security; or (e} an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion. 175. Pursuant to s. 371(6) of the Criminal Code the act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act. 176. Therefore, to prove that the offence of stealing the rental car occurred at the time and place alleged, the prosecution must prove each of the following elements beyond reasonable doubt: (1) that the offender was the accused; (2) that the rental car belonged to someone else; (3) that the rental car was stolen; (4) the fraudulent taking or fraudulent conversion of the rental car; (5) the rental car is actually moved or otherwise dealt with by some physical act; and (6) the value of the rental car. 177. Having regard to the primary facts found, the prosecution has proven beyond reasonable doubt the rental car was owned by WTH Pty Ltd and the value of the rental car is $27,000.00, Was the property stolen? 178. The accused submits the rental car was either abandoned or the police directed someone to keep the rental car or the rental car was already in the possession of the ANZ Bank. 179. None of these submissions are tenable on the accepted evidence. 180. The police entered Goldenvale Farm on 13 March 2015 with a search warrant authorising the seizure of the rental car. Due to the mood at the farm and because he did not consider he would be assisted to move the hay bales, Mr McAlpine made a tactical decision to leave the rental car at the 35farm to be retrieved on another day. Before doing so he sought an assurance from Mr Dixon that no further damage would be done to the rental car. The rental car was locked and remained surrounded by hay bales with three deflated tyres. 181. It was not until 16 March 2015, following a conversation with the accused, when Mr McAlpine returned to Goldenvale Farm that the rental car was reported stolen. Simply put, by this time the rental car had been moved to an unknown location. 182. Whatever Mr McAlpine’s view was on 31 March 2015, as conveyed to Mr Dixon in an email, clearly that view changed as events moved on. Little turns on this 183. Thus on no view was the rental car ever abandoned on 13 March 2015, nor could any throw away comment by $/C Budrovich be interpreted as an instruction that the rental car was now someone else’s vehicle where it is clear he had no authority to give or transfer any ownership of the rental car, nor was the rental car in the possession of the ANZ Bank for reasons already given. 184. Therefore, I am satisfied the prosecution have proven beyond reasonable doubt that, between 13 March 2015 and 11 June 2015, the rental car was stolen. Was the rental car actually moved or otherwise dealt with by some physical act? 185. The rental car was physically moved between 13 and 16 March 2015 and it was quite possibly moved again. At some point between 13 March 2015 and 11 June 2015, the rental car was moved to, and concealed within, the fortress of hay bales. 186. WTH Pty Ltd and Mr Lasscock did not authorise or consent to the movement of the rental car. 36187. The prosecution has proven beyond reasonable doubt the rental car was moved from the position where it was left by Mr Lasscock on 13 March 2015 in front of the shed on Goldenvale Farm to behind a wall of large hay bales approximately 200 metres from the shed. Exactly when and how this occurred is not known. 188. On 16 March 2015, a security interest was registered on the PPSR over the rental car where the secured party was Deqmo Pty Ltd and the grantor ‘The Trustee for Birdanco Practice Trust. The rental car was unencumbered and not subject to any lien between RSM Bird Cameron or AVIS and Deqmo Pty Ltd or any other person or entity. 189. In registering the security interest on the PPSR over the rental car, the prosecution have also proven beyond reasonable doubt the rental car was otherwise dealt with by some physical act. Was the rental car taken or converted? 190. For the purposes of s.371 of the Criminal Code, conversion is established by dealing with property in a manner which is inconsistent with the rights of its true owner: Tammy Cherie Kingdon v Western Australia [2012] WASCA 74 at [43] (referring also to Mich v R (1987) 162 CLR 110 at 117). 191. In addition, the converter may not know of, or intend to challenge, the property or possession of the true owner: Caxton Publishing Co Ltd v Sutherland Publishing Co Ltd [1939] AC 178 (referred to in Hitchcock v Thorpe, unreported, Library No 920204) 192. For the purposes of s. 371 of the Criminal Code, taking involves the physical movement of something capable of being stolen. 193. The true owner of the rental car was WITH Pty Ltd. Whatever the accused’s belief about ownership, the effect of registering a security interest over the rental car was to deal with it in a manner inconsistent with the 37rights of the true owner, WTH Pty Ltd. The rental car was unencumbered and not subject to any lien or agreement between RSM Bird Cameron or WTH Pty Ltd and Deqmo Pty Ltd. 194, Even if the accused held some belief the rental car formed part of Goldenvale Farm in the possession of the ANZ Bank that would not in any way explain the registering of a security interest in favour of Degmo Ply Ltd, a company which had no identifiable connection with Mr Dixon, Goldenvale Farm or RSM Bird Cameron, 195. The rental car was moved between 13 March 2015 and 11 June 2015, How the car was moved is not to the point, Neither Mr Lasscock nor WTH Pty Ltd gave permission or consented to the car being moved. 196. The prosecution have proven beyond reasonable doubt the rental car was dealt with dealt with in a manner inconsistent with the rights of the true owner, WTH Pty Ltd, and that this was done for the accused’s own use for whatever reason including on behalf of someone else]. Further, the prosecution have proven beyond reasonable doubt the rental car was moved, concealed and thus was taken. Was the rental car taken or converted fraudulently? 197. The prosecution rely on the deeming provisions in s. 371(2), principally (c) and (a) and to a lesser extent (e), of the Criminal Code to prove the requisite intention to fraudulently take or convert the rental car. 198. Therefore, the element of fraud can be established by an intention to permanently deprive the owner of the property, or an intention to use the property as a pledge or security, or an intention to deal with the property in such a manner that it cannot be returned in the condition in which it was at the time of the conversion. 199, If relying on s. 371(2)(c), similar to that in s. 371(2)(a) and (e), the prosecution need to prove a loss of the property to the owner either 38permanently or in such manner as to risk permanent loss or change to it: Bowman v R [1980] WAR 65 at 68. 200. The accused was clearly disgruntled by Mr Lasscock’s and Mr Robin’s attendance at Goldenvale Farm to negotiate a voluntary transfer of the farm. to ANZ Bank. Later the accused referred to RSM Bird Cameron being in “big trouble” and the ANZ owed money. 201. The rental car was located approximately three and a half months after it had been moved from near the Goldenvale Farm shed to a fortress of hay bales. The rental car was visible from Police Air Wing. The rental car was concealed within the fortress, under a tarpaulin and loose hay in the middle of a farming paddock. 202, The accused had registered a security interest over the rental vehicle on the PPSR nominating as the secured party a company he was previously a director of, but still retained access to, and conducted transactions on, the company’s bank account. 203. The accused attempted to get a key cut to the rental car using a PPSR receipt and VIN to establish ownership of the rental car. 204. ‘The accused knew the location of the rental car. 205, The accused told Mr Agapis he wanted to make money out of the rental car. 206. The accused suggested to Mr Bertina AVIS should “write off” the rental car as it would be tied up in court for two to three years. By this time, the accused was clearly aware the rental car was owned by AVIS, notwithstanding he had been repeatedly told as much months earlier. 207. — Itis open to infer that but for a tip off from a member of the public, the rental car would not otherwise have been located by police. 208. Notwithstanding the registration of the PPSR in Deqmo Pty Ltd’s name, the only reasonable inference to be drawn from the found facts is that the 39accused converted the rental car to his own use where he was previously a director of Deqmo Pty Ltd, continued to hold himself out as a director of Deqmo Pty Ltd and continued to operate, and transact on, a bank account for Deqmo Pty Ltd. 209. The connection between the accused and the entity involved in the registration of the PPSR is undeniable on any reasonable assessment of the evidence. The connection is direct, consistent and unequivocal. 210. Further, it follows that the only reasonable inference to be drawn from the found facts is that there was an intention to permanently deprive the owner, being WTH Pty Ltd, of the rental car, irrespective of whether the true owner of the rental car was known at the time. 211. Equally in all of those circumstances, it is also reasonable to infer that in registering a security interest in the rental car on the PPSR there was an intention to use it as a possessory security to secure an obligation [for whatever reason including on behalf of someone else] and to hold it for that purpose. Furthermore, for the same reasons as outlined above the requisite of permanent loss or risk of permanent loss appli 212. Accordingly, the prosecution have proven beyond reasonable doubt the requisite fraudulent intent to either: (a) permanent deprive WTH Pty Ltd of the rental car; or (c) use the rental car as a security. Was the accused the offender who fraudulently converted the rental car to his use own. use intending to permanently deprive the owner of the rental car or to use the rental car as a security? 213. Having regard to the whole of the evidence in this matter, the following can be said beyond reasonable doubt. 214, The accused registered a security interest on the PPSR over the rental car where the secured party is Deqmo Pty Ltd. The accused did so using a credit card in his name linked to a bank account for Degmo Pty Ltd where 40he was previously a director and authorised to use the bank account and continued to transact on, and operate, the bank account. 215. The accused kept in contact with the police about the rental car, notwithstanding he purported to have no concern and nothing to do with the rental car after he left Goldenvale Farm on 13 March 2015. 216. The accused told police officers he had secured registration over the rental car and that RSM Bird Cameron were in big trouble and/or the ANZ Bank owed money. 217. The accused attempted to get a key cut to the rental car using a PPSR receipt and VIN to establish ownership of the rental car. 218. The accused knew the location of the rental car. 219. The accused told Mr Agapis he wanted to make money out of the rental car. 220. The accused suggested to Mr Bertina that AVIS should “write off” the rental car as it would be tied up in court for two to three years. By this time, the accused was aware the rental car was owned by AVIS, notwithstanding he had been repeatedly told as much months earlier, 221, The accused harboured strong views about the repossession of farms by banks generally and held strong views about RSM Bird Cameron attending Goldenvale Farm on 13 March 2015. 222. Again, having regard to all of the accepted evidence, it was the accused who fraudulently converted the rental car to his own use either by intending to permanently deprive the owner of the rental car of it {irrespective of whether he was wrong about who the owner was) or intending to use it as a security. 223. Accordingly, the prosecution have proven beyond reasonable doubt the offender is the accused. 4224. The prosecution have proven each element of the offence of stealing the rental car beyond reasonable doubt and I find the accused guilty of the as offence and enter judgment of conviction. ee D SCADDAN MAGISTRATE 42