Case: Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609
Outcome: referred to
Siminton's attempts to conceal his use of funds, and his failure to complete a statement of affairs or provide books of account leads readily to an inference that Siminton has access to the funds in the account in the name of Holzheimer. ..." 20 Some of the transactions and other events on which the Deputy Registrar relies were also relied on by APRA in a separate but related contempt proceeding: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 (" Siminton (No 7 )"). &#8226; The transactions referred to in para 15 of the District Registrar's written submissions are explained and dealt with in Siminton (No 7) at [33] and [63]. &#8226; The transaction referred to in para 17 of the District Registrar's submissions is explained and dealt with in Siminton (No 7) at [28], [29] and [62]. &#8226; The direction referred to in para 19 of the District Registrar's submissions is explained and dealt with in Siminton (No 7) at [37]. The transactions referred to in para 16 of the District Registrar's submissions are, largely, in addition to those dealt with in Siminton (No 7) at [22]. They involved the use, by Mr Siminton, of the Visa card in the name of Holzheimer, to purchase goods and services from a garage, a Seven Eleven store, a cinema and a restaurant. 21 In oral submissions counsel for the District Registrar also drew attention to the use, by Mr Siminton, of the Holzheimer's Visa account, to pay legal fees totalling $19,500 in the period between 3 May 2006 and 16 August 2006. Nine separate transactions were involved. The details appear in Siminton (No 7) at [23]. Of these only one payment of $2,000 was made between 19 July and 2 October 2006. Counsel, however, submitted that the earlier payments provided evidence that Mr Siminton was in a position to draw on and did drawn on the account to satisfy his financial needs during 2006. 22 The District Registrar's invitation to the Court to draw inferences from the facts is made in circumstances in which neither Mr Siminton nor any other persons, such as the Holzheimers, who might reasonably have been expected to have knowledge of the various transactions and of his financial position, gave evidence. No adverse inference can be drawn merely because Mr Siminton has chosen not to give or call evidence in defence of the charge. The failure is nonetheless of potential significance. This is because, as the High Court explained in RPS v R [2000] HCA 3 ; (2000) 199 CLR 620 at 632-3: "...it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting and apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: '[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.' "(footnotes omitted)." 26 Counsel for the District Registrar submitted that the evidence supported the conclusion that, in the period between 19 July 2006 and 2 October 2006, Mr Siminton had access to funds which would have enabled him, had he wished to do so, to pay some or all of the fine imposed by the Full Court. Counsel accepted that there was an issue as to whether Mr Siminton was entitled to have access to the funds consistently with orders made by Gray J on 10 January 2006. In Siminton (No 7) I have held that, in dealing with these funds, Mr Siminton was in contempt of His Honour's orders: see at [3], [4], [60], [61], [62], and [63]. Counsel, however, submits that Mr Siminton could have made application to the Court in accordance with an order made by Gray J which gave him "liberty to apply on two days notice in writing to [APRA], supported by an Affidavit as to his means, for an order that he be permitted to withdraw moneys for the purposes of paying his own living expenses and/or paying his legal expenses in relation to the proceeding." Alternatively, an application could have been made to vary His Honour's orders so as to permit Mr Siminton to have access to sufficient funds to pay some or all of the $50,000 fine. This was not done. 27 Counsel for Mr Siminton pointed to the attempt made by Mr Siminton, in September 2006, to have the time for payment enlarged and, in particular, to the part of the affidavit, sworn by his instructing solicitor on 14 September 2006, which has been extracted above at [4]. This was said to indicate that Mr Siminton was making a bona fide attempt to obtain access to the funds frozen by Gray J's order in order to pay the fine. The affidavit did not disclose that Mr Siminton had, in fact, obtained access to some of the funds comprehended by his Honour's orders. Faced with the uncontradicted evidence that Mr Siminton had had access to some of these funds counsel was forced to concede that Mr Siminton did, during the relevant period, have the capacity, should he have so wished, to pay part of the fine. He submitted, however, that the evidence, adduced by the District Registrar, did not establish that Mr Siminton had the capacity to pay the entire $50,000 before 2 October 2006. There was, therefore, he contended a "more than reasonable doubt" as to whether Mr Siminton's failure to pay the full amount was wilful. 31 The circumstances in which Mr Siminton came to have access to the Holzheimer's Visa account are explained in detail in Siminton (No 7) at [23] and [36]. In summary, what occurred was that, in April 2006, Mrs Holzheimer obtained an additional card to operate the account by reporting the loss of a card held by her. She provided the replacement card to Mr Siminton who used it regularly from April 2006 until it was cancelled by the bank on [15] September 2006. Between 19 July 2006 and 16 August 2006 he used it on many occasions to purchase goods and services. On 16 August 2006 the account had a debit balance of $2,463.73. At about that time Mr Siminton gave instructions to a bank in Austria to transfer $25,000 (less commission) from an account controlled by him to the Holzheimer's Visa account. Pursuant to those instructions $24,981 was transferred into the Visa account on 16 August 2006. The account then had a credit balance of $22,517.27. On that day he used the card to pay $2,000 to his solicitor. On 18 August 2006 he withdrew $1,000 in cash from the account. He did so again on 30 August 2006. 32 I am, accordingly, satisfied that Mr Siminton had the financial capacity to pay at least $22,517.27 to comply, in part, with the Full Court's order. I am satisfied that his refusal to do so was wilful. He was well aware of his obligation to make the payment and he chose to use the funds at his disposal for other purposes. 33 I found, in Siminton (No 7) , that the funds transferred from the Austrian bank and other funds credited to the Visa account were subject to the "freezing order" made by Gray J in January 2006. Mr Siminton should not, therefore, have dealt with these moneys. This does not, in my opinion, lead to the conclusion that he lacked the capacity to make part payment. Counsel for Mr Siminton did not so submit. Mr Siminton, in fact, had obtained access to these funds and used them. He asserted an entitlement to some, at least, of the moneys covered by Gray J's order. He had the option of preparing an affidavit as to his means and establishing his entitlement to the funds. He chose not to do so. I accept the submission of counsel for the District Registrar that Mr Siminton could, had he wished to do so, lawfully have obtained the right to use the funds to pay the fine by exercising the liberty to apply granted to him by Gray J or by applying to vary Gray J's orders. He did neither of these things. 34 I am satisfied beyond reasonable doubt that each element of the charge preferred by District Registrar has been made out. I will give directions as to the steps which need to be taken in advance of a hearing on penalty. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 7 November 2007 Counsel for the District Registrar: Mr R Niall Solicitor for the District Registrar: Australian Government Solicitor Counsel for the Respondent: Mr D Sharp Solicitor for the Respondent: Erhardt &amp; Associates Date of Hearing: 14 June 2007 Date of Judgment: 7 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1612.html