Case: RPS v R [2000] HCA 3 ; (2000) 199 CLR 620
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)."