DATE: 20030604

DOCKET: C24685

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DARRYL WILLIAMS (Appellant)

BEFORE:

MACPHERSON, CRONK AND GILLESE JJ.A.

COUNSEL:

Timothy S. B. Danson

for the appellant

James K. Stewart and Kelly Slate

for the respondent

HEARD:

June 3, 2003

On appeal from the conviction entered on November 6, 1995 and the sentence imposed on May 23, 1996 by Justice J. A. Goodearle.

E N D O R S E M E N T

Released Orally: June 3, 2003

[1] The appellant, Darryl Williams, and the co-accused, Anne Kossatz, were charged with seven counts of fraud and one count of attempted fraud. The Crown dropped four fraud charges at the preliminary hearing and one fraud charge at trial. The trial proceeded on the remaining two fraud charges and one charge of the attempted fraud. Kossatz was acquitted of all charges. Williams was acquitted of one count of fraud and convicted of one count of fraud and one count of attempted fraud. He received a sentence of 90 days incarceration, to be served intermittently, and a fine of $20,000. He appeals both the convictions and the sentence.

[2] The principal ground of appeal is that the Crown failed to prove an essential element of the offence, namely, that the appellant did not have the authorization from his superiors in the company to engage his girlfriend to provide recruitment services to the company.

[3] We disagree with this submission. The essential elements of the actus reus of fraud are a dishonest act and deprivation. The trial judge carefully reviewed all of the evidence and concluded that the Crown had established these two elements.

[4] The defence position was that the appellant had received an authorization from his immediate superior, Stewart, to hire his girlfriend to provide recruitment services. Neither the Crown nor the defence called Stewart as a witness. The appellant takes the position that the Crown’s failure to call Stewart was fatal.

[5] We disagree. The evidence tendered by the Crown — Brown’s and Robinson’s testimony about Kossatz’s non-existent or very minor role in their hiring, Robinson’s testimony about the appellant’s instruction to him to lie to Stewart about how he was hired, the circumstances surrounding the invoice for the Robinson hire (undated, no address, unsigned), and the remarkable and damning “Murphy letter”, including Brown’s testimony that she typed it — all strongly supported the Crown case on the dishonest act and deprivation elements of the offence of fraud.

[6] The same factors also pointed strongly against Williams on his defence of authorization. Moreover, the trial judge explicitly rejected Williams’ testimony on this issue.

[7] On all the other issues, including the mens rea of the offence of fraud, disclosure and delay, we agree with the trial judge’s analysis and conclusions.

[8] As to the sentence appeal, Crown counsel on the appeal characterized the sentence as “most merciful”. We agree with this characterization in light of the appellant’s position as a senior manager in a position of trust in the company he defrauded and attempted to defraud.

[9] Accordingly, the conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”

“E. E. Gillese J.A.”