Assan v Gokel - [2001] NTSC 84

Assan v Gokel [2001] NTSC 84
PARTIES:ASSAN, JONI LEE

v
GOKEL, NOEL JOHN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 25 OF 2001 (20012848)
DELIVERED:  5 October 2001
HEARING DATES:  20 July 2001
JUDGMENT OF:  MILDREN J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:S Johns
Respondent:  G Dooley
Solicitors:
Appellant:North Australian Aboriginal Legal Aid Service
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:
Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Assan v Gokel [2001] NTSC 84
No. JA 25 of 2001 (20012848)

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

BETWEEN:
JONI LEE ASSAN

Appellant
AND:
NOEL JOHN GOKEL

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 5 October 2001)
MILDREN J:
Introduction

On 4 May 2001 the appellant was found guilty by the Court of Summary Jurisdiction of one count of stealing cash valued at $240, the property of Arnhemland Progress Association (ALPA) contrary to s210 of the Criminal Code. The appellant appeals to this Court on the following grounds, as amended at the hearing of the appeal:
1.The conviction was unsafe and unsatisfactory in that the evidence did not support a finding beyond reasonable doubt that the appellant appropriated the money and had an intention to permanently deprive the owner of it.
2.The learned Magistrate relied upon evidence of conversations between the appellant and others, which occurred some time after 20 June 2000, in an impermissible manner.
3.The learned Magistrate erred in his application of principle regarding the reliance upon lies as evidence of consciousness of guilt.
The case for the Prosecution
The case for the prosecution was that, between Tuesday 20 June 2000 and Thursday 22 June 2000 ALPA held a board meeting in Darwin. A representative from Croker Island who was on the board was unable to attend the meeting and a Ms Wauchope was nominated as that representative’s proxy. Ms Wauchope lived in the northern suburbs of Darwin. The meeting was held at ALPA’s offices in Shepherd Street, Darwin. The appellant was an employee of ALPA and on Tuesday 20 June, as part of her duties during the conference, she gave a cheque requisition to ALPA’s accounts clerk, Vanessa Lewfatt, to enable a cheque to be drawn in favour of Ms Wauchope for an accommodation allowance related to Ms Wauchope’s attendance at the board meeting. The requisition was approved by ALPA’s accountant, Mr Greg Harris. A cheque was prepared by Ms Lewfatt in accordance with the requisition, payable to “Please Pay Cash – Julie Wauchope”, and was taken by Ms Lewfatt to be signed. After that had occurred, the cheque was left on Ms Lewfatt’s desk for collection by the appellant who later collected it in Ms Lewfatt’s presence.
According to the evidence of Michelle Cubillo, an executive administration officer employed by ALPA, late on the morning of Tuesday 20 June the appellant approached her and told her that Ms Wauchope had asked for payment for her meal allowance. It is not entirely clear, but the evidence of Ms Cubillo is consistent with her having approved that payment. Subsequently Ms Cubillo realised that Ms Wauchope may not have been entitled to the payment and her evidence was that she told the appellant not to give the cheque to Ms Wauchope. According to Ms Cubillo, this latter conversation occurred “close to lunch time, sort of late morning.”
The position seems to have been that at this time there was doubt as to whether or not Ms Wauchope was entitled to the money and Ms Cubillo’s evidence is consistent with the possibility that she conveyed this uncertainty to the appellant. According to Ms Wauchope, she was told by Ms Cubillo that she was not entitled to the allowance, but later in cross-examination she agreed that Ms Cubillo had said words to the effect that the matter would be checked and she would have to wait and see. It is not clear when this conversation took place. However, according to Ms Wauchope, the appellant showed her the cheque at some stage late on Tuesday 20 June, but kept it in order for her to cash the cheque on Ms Wauchope’s behalf, as “we was running late with the meeting, that she was going on her way to the bank and she could change it.”
According to Ms Lewfatt, she had a further conversation with the appellant on Tuesday 20 June, who told her that there was a “discrepancy” whether Ms Wauchope was entitled to the cheque and that she was about to give the cheque to her, but had held on to it until she heard from “higher authority”.
The evidence is that on Tuesday 20 June the appellant cashed the cheque and did not give the money to Ms Wauchope or return it to ALPA. According to the prosecution witnesses, they were unaware that this had happened.
According to Ms Cubillo, she spoke to the appellant the following day and told the appellant “not to give it (the cheque) to Julie Wauchope, she still wasn’t entitled.” However the inference is that the matter was still not finally cleared up because her evidence was that on Thursday morning she had a conversation with the appellant and with Ms Wauchope in the reception area. The appellant asked her if she had told Ms Wauchope about the travel allowance money and she replied that she had not as yet and then proceeded to explain to Ms Wauchope why she was not entitled to receive it. Her evidence was that she believed that the appellant was standing by and could hear this conversation.
There was also evidence that when Ms Cubillo arrived at work at 8.00am on Thursday 22 June, the appellant was very upset and told her that her brother in Canberra was very ill and she had to fly out the next day.
On Friday 23 June, Ms Cubillo tried to locate the cheque. Not being able to find it, she rang the appellant’s home and spoke to the appellant’s daughter, with whom she left a message for the appellant to ring her first thing Monday morning. The appellant telephoned her on Monday 26 June. Ms Cubillo asked the appellant where the cheque was. The appellant said that it was still in her coat pocket at home and that she would try to get a friend, who had the keys to her house, to drop the cheque in before she (the friend) flew out. Ms Cubillo understood that the friend was departing Darwin that day. In any event the cheque did not arrive at ALPA’s office.
There was evidence that cashing board members’ cheques by ALPA’s staff was a common practice. This is supported by the fact that the cheque in this case was not made payable to a named payee.
In the meantime, on Friday 23 June, an assistant accountant employed by ALPA, Ms Garrett, had a conversation with Mr Sincock, ALPA’s accountant, as a result of which he made enquiries with ALPA’s bankers and received information that the cheque had already been presented on 20 June. It appears that at this time ALPA’s manager, Mr Edwards, was on leave but he returned to work on 10 July, the same day as the appellant returned to work following her trip to Canberra. Shortly after arriving at work, Mr Edwards had a conversation with the appellant who had come to see him about another matter. After that matter was briefly discussed, Mr Edwards said to the appellant that whilst he had been away he had received a couple of e-mails suggesting that there had been some problems and he asked the appellant for her explanation. The appellant asked him what problems he meant and he said that one of them was the money missing from the board meeting. The appellant said that she was aware of that and still had that cheque. He said that without the cheque he was unable to clear the matter up. The appellant said that the cheque was at home and he suggested to her that she go home and return with the cheque. The appellant later returned at 9.40am and handed $240 in cash to Mr Edwards. Mr Edwards said: “I thought you told me that you had the cheque?”. The appellant said: “No, I’ve told people I actually cashed it.” Mr Edwards said: “Well that’s a different story to what I’d been told.”
The Accused’s Version to the Police.
The appellant was interviewed by police about these matters on Friday 14 July 2000. The interview was audio-taped. The audio-tapes were tendered by the prosecution and played in court. They were not transcribed. The appellant substantially agreed with the broad outline of the prosecution case, although she differed in respect of a number of the details. Her version was as follows. The appellant was employed by ALPA as a receptionist. Her duties included answering the telephone, attending to the mail, banking and any typing which needed to be done. When board meetings were held she arranged the accommodation, hire cars and travel, organised lunches, prepared the board room every morning, cleaned the room during breaks and stocked up on tea, coffee and soft drinks. As to banking, her duties included receipting monies but she did not normally attend at the bank unless there were cheques to be cashed.
On Tuesday 20 June she received a telephone call from Wayne Wauchope to the effect that his sister Julie Wauchope would be attending the board meeting on behalf of somebody from Croker Island. Normally board members were booked into Mirambeena Lodge and ALPA met the costs of food and accommodation. However, if a member stayed elsewhere they were given a travelling allowance of $80 per day. As Ms Wauchope was not booked into Mirambeena Lodge, the appellant arranged for the cheque for $240 to be prepared for Ms Wauchope’s travelling allowance. She gave the cheque to Ms Wauchope when she came in and Ms Wauchope signed for the cheque requisition, indicating she had received it. [The cheque requisition in fact bears Ms Wauchope’s signature.] Subsequently, the appellant spoke to a person called Henry Harper who told her that Ms Wauchope lived in Darwin and was not entitled to the travelling allowance. She was advised to speak to the Chairman about it, but he was conducting the meeting at that time. The exact sequence is not clear, but after giving Ms Wauchope the cheque, the appellant approached Ms Wauchope and offered to cash the cheque for her. This was sometime around the afternoon break, after she had spoken to Mr Harper. She retrieved the cheque and cashed it at the bank. She appears to be saying that at some stage that afternoon she was told by Ms Cubillo to hang onto the cheque until the Chairman had been consulted, but decided subsequently to cash the cheque so that Ms Wauchope would have the money that evening if she was entitled to it and if she was not, the money could be re-banked. She put the money in the top drawer of her desk and at the end of the day, took it out of her desk and put it in the pocket of the blue blazer jacket she was wearing. It is not clear why she did this. She was not asked to explain why in the record of interview. However she appears to be saying that she intended holding onto the money until the following day as the question of Ms Wauchope’s entitlement had not been referred to the Chairman as yet. She wore the blue jacket home that night and hung it in her wardrobe. She says she then forgot about the money and was not reminded of it again until she spoke with Ms Cubillo on the following Monday when she rang her from Canberra. The appellant claimed that she told Ms Cubillo that the money, (not the cheque) was in her pocket at home and she would get her friend to retrieve it. She said that she tried to ring her friend several times but was not successful and the matter slipped her mind again until she returned to work and spoke to Mr Edwards. She told Mr Edwards that the money was at home; she went home and recovered the money and on the way back to work, she called in to the bank to get some money out to buy her children some McDonalds, put $20 worth of fuel into her car and returned to work and handed the money over to Mr Edwards. The appellant claimed that she had told others at ALPA, whom she named, before she left to go to Canberra unexpectedly on Friday 23 June, that she had cashed the cheque.
Difficulties with the Evidence
No evidence was led by the Crown to show that the appellant had withdrawn funds from her bank account on the Monday to replace the $240 or to otherwise prove that the $240 was not then in her blue blazer jacket as she claimed. No evidence was led by the persons named in the record of interview that the appellant made no mention of cashing the cheque. The appellant did not give evidence.
A significant difficulty with this case is that the appellant was also charged with stealing $150, the proceeds of a cheque given to her on 19 June in order to purchase fish and chips for the board meeting on Tuesday. The record of interview covered both offences and questioning chopped and changed from one cheque to the other and the surrounding circumstances of both matters, which has made following the sequence of events in the record of interview very difficult. The learned Magistrate dismissed the charge in relation to the $150 because there were apparently two lots of $150 missing and he was not satisfied on the evidence which lot, if any, was stolen by the appellant.
Findings of the Learned Magistrate
The learned Magistrate did not accept the appellant’s account in the record of interview with the police as to how the appellant did not come to account for the $240 before she left to go to Canberra. His Worship said that whilst the appellant’s explanation as to why she cashed the cheque was plausible, this did not account for the fact that the money went into her pocket rather than being placed “in office funds”.
Later his Worship referred to the fact that part of the appellant’s explanation for the missing $150 was that she accidentally put it into her pocket and took it home with her on 19 June. The following day she wore a different jacket and did the same thing again. His Worship said:
To forget money like that once might be considered possible. Indeed we have all done something of the sort. To do it twice in two days is, on the face of it, much less easy to believe really happened, and one has suspicions arising from those circumstances and looks to some sort of explanation for it.
The main reason his Worship convicted the appellant comes from this passage:
I am satisfied that she was lying about still having the cheque and still being dishonest about that amount of money when she spoke to Mr Edwards and that the rest of her conversation with Mr Edwards indicates a consciousness of guilt in relation to the amount of cash which was then in her possession.
After referring to “reasons, which I can’t grasp, [why she] thought she could possibly get away with that money”, and to factors which might provide an innocent explanation, viz, that she was hurried, worried about her brother who became critically ill with cancer during the course of a busy week, and that the appellant was very busy that week because of the meeting which might cause her to make mistakes, his Worship said:
I’ve borne those matters in mind but they didn’t seem to offer, in the abstract, an explanation as to the numerous falsehoods she told to various people before and after this $240 was cashed, vanished into her pocket and did not return until she was challenged to come up with it.”
Lies Indicating a Consciousness of Guilt
In exceptional circumstances, lies told by an accused can be used to indicate a consciousness of guilt, but only if certain conditions are met. These conditions are discussed in the joint judgment of Deane, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 at 208-211. First, there must be a deliberate lie told. Secondly, the lie should be precisely identified. Thirdly, the lie must relate to a material issue in the case. Fourthly, the lie must be one which was told because the accused perceived that the truth was inconsistent with his or her innocence. Fifthly, the circumstances and events that indicate that the lie constituted an admission against interest must be precisely identified. Sixthly, in jury trials the jury must be instructed that there may be reasons for the telling of a lie apart from a realization of quiet. I interpolate that in cases decided without a jury, the instruction should be given by the Judge or Magistrate to himself. “A lie may be told out of panic, to escape an unjust accusation, to protect some other person, or to avoid a consequence extraneous to the offence". The jury should be told that if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission.” (See Edwards v The Queen supra, at 211). Further, it is for the Crown to eliminate any reasonable possibility that the lie was told for such a reason: see R v Lucas [1981] QB 720 at 724; R v Small (1994) 33 NSWLR 575 at 595, 606.
The prosecutor should make clear to the Court whether such lies are to be relied upon as an admission of guilt, or are only relied upon as a means of rejecting the accused’s account. If the prosecutor has not made this clear, it is the duty of the Court to enquire of the prosecutor how he puts his case. If the prosecutor is relying upon lies as an admission of guilt, he should be asked to identify the lies and the basis upon which they are said to be capable of implicating the accused in the commission of the offence charged: see Zoneff v The Queen (2000) 200 CLR 234 at [17]. If the prosecutor does not rely upon lies as an admission of guilt, that issue is not joined between the parties and should not be left to the trier of fact: Zoneff v The Queen, supra, at [18] to [20], per Gleeson CJ, Gaudron, Gummow and Callinan JJ. Fairness in the trial process also requires that the prosecutor should, where possible, deal with this in his opening. If he fails to do so, the defendant may not realise that this is in issue and may tailor the presentation of the defence case accordingly, for example, by not calling the defendant to give evidence and by not objecting to the admissibility of the record of interview.
In this case, the prosecutor did not in opening his case say that he intended to proceed in this way. The appellant did not give evidence or object to the record of interview, although much of the record was possibly objectionable. Even in his final address, whilst the prosecutor invited his Worship to reject the appellant’s account, at no stage did he invite his Worship to find that she had told deliberate lies to the police which amounted to an admission of guilt. After counsel for the accused had completed his address, his Worship permitted the prosecutor to reply. I say nothing about the propriety of that, as it is not complained of in the notice of appeal, but merely point out that even then no mention of the subject was made. After the prosecutor had replied, the learned Magistrate raised an issue which was troubling him and he sought further submissions from both counsel. The issue raised was how any findings his Worship might make in respect of one charge might be used in relation to the other. In the course of dealing with that submission, the following exchange took place:
“MR ELLIOTT:   In my submission you certainly can use the evidence in the way that you are thinking of using it, that is to use the evidence or the explanation in relation to the first count to weigh up the realism of the explanation in relation to the second count.
HIS WORSHIP: Well what about vice versa?
MR ELLIOTT: Yes, sir, you can’t use them as – you cannot use it as evidence of guilty per se, in other words, no one forgets twice so you must be guilty; you couldn’t do that. What you can do is say look, in assessing the second, did – is it likely or feasible you have forgotten the second one when you had already forgotten the first.
HIS WORSHIP:   Mm.
MR ELLIOTT: It’s equal (sic) feasible I would have – no, you can’t use it in the other way around because on the evidence of the defendant, she gave the $150 back a couple of days later. Now, if you reject that, that it was given back, you may then be able to use – no you can’t, you still can’t. The evidence of the second – count 2 which is the – now the first in time, count 2, you may use the explanation given in relation to that to assess the veracity of the explanation given in relation to the second one.
HIS WORSHIP: And vice versa I think, as far as – as far as the credit I extend to self-serving statements within the record of interview then there’s as it were a general credit – credibility issue and anything I find positive there I believe that Ms Assan intends to put – shine a good light on everything else she says, and anything is positively not true and knowingly false detracts from her general credit, but that’s - - -
MR ELLIOTT: The Crown does also - - -
HIS WORSHIP: - - - just like bad luck.
MR ELLIOTT:   - - - given that you mentioned credit, also relies on some Edwards(?) lies.
HIS WORSHIP: Some?
MR ELLIOTT: Edwards lies in the interview.
HIS WORSHIP: Edwards lies? Sorry, I don’t - - -
MR ELLIOTT: Lies that satisfy the test in R v Edwards, that is lies that are capable of being evidence of guilt as opposed to purely lies that go to diminish the credibility of the version given.
HIS WORSHIP: Yes, I – that’s what I thought I was exploring before.
MR ELLIOTT: Yes, I just - - -
HIS WORSHIP: To some degree.
MR ELLIOTT: - - - wanted to have that – sorry.
HIS WORSHIP: For example, Mr Elliott, you recall one of the people from the fish and chip shop giving the evidence to the effect that Ms Assan said it’s not my fault, the courier took the cheque – took the money to the wrong fish and chip shop, that’s the sort of lie all of us have told several times in our lives to cover up things that were our own fault; I don’t know about you but I certainly have. And you – Ms Assan had said that’s right, I made that fib up because I felt a bit guilty about not paying up for a couple of days. That would be a pretty convincing - - -
MR ELLIOTT:   But she - - -
HIS WORSHIP: - - - account and that – if I believed that she did utter those words, I probably wouldn’t put a great deal of weight on them, but she hasn’t said that, she said she never uttered those words so there’s a big credit problem going on there but I’m not sure that resolving that would – even if I say I’m satisfied that Ms Dowling, not this Ms Dowling, the other Ms Dowling is right and Ms Assan is wrong, I’m not sure that that really does anything except blow a certain amount of doubt onto Ms Assan’s general credit, it’s not one that points to a consciousness of guilt.
MR ELLIOTT: Yes, what we say is the consciousness of guilt lie is the I gave the money back.
HIS WORSHIP: Mm.
MR ELLIOTT: We say that’s a plain consciousness of guilt lie.
HIS WORSHIP: Yes.
MR ELLIOTT: It can’t do anything except - - -
HIS WORSHIP: Yes, that’s the direct denial of - - -
MR ELLIOTT: If it’s accepted as a lie - - -
HIS WORSHIP: - - - the charge and if it’s a lie, it’s - - -
MR ELLIOTT: Well it’s not just a denial that I stole it - - -
HIS WORSHIP: Mm.
MR ELLIOTT: - - - it is more than that, it is the prosecution says a lie told because of a consciousness of guilt.
HIS WORSHIP: Yes. It’s a lie told because it’s necessary to tell that lie to - - -
MR ELLIOTT: Or else you’ll be admitting you’ve done it.
HIS WORSHIP: Else there’s no explanation for the event, yes.
MR ELLIOTT: Yes.
HIS WORSHIP: Right, thank you.

It is obvious that this was far too late in the proceedings to raise this issue. In any event, the lie identified by the prosecutor related to the count which the learned Magistrate dismissed. There was no suggestion by the prosecutor, even at this late stage, that reliance was being placed on any lies as amounting to a consciousness of guilt in relation to the count in respect of which the appellant was convicted. No issue was joined between the parties on this issue and therefore his Worship erred in relying upon such lies to reach a verdict of guilty. The appeal on ground 3 must succeed.
Unsafe and Unsatisfactory
I consider that I should consider this ground of appeal because it may assist me in deciding whether or not to order a retrial or to enter a verdict of acquittal.
The charge alleged that the $240 was stolen on 20 June 2000. The charge was not amended to cover the possibility that the money was stolen at some later time. The prosecutor opened his case thus:
I think the strength of the prosecution cases is the negotiation of the cheques in the circumstances that they were negotiated.
The charge was never amended. The learned Magistrate found the charge proved.
The learned Magistrate clearly entertained a reasonable doubt that at the time the appellant cashed the cheque, she intended to keep the money for herself. So far, the findings are consistent with a subsequent appropriation of the money by the appellant. Implicit in his Worship’s finding is that at some subsequent time on that day, the appellant appropriated the money by a “later assumption of a right to it by keeping it or dealing with it as owner.” (See the definition of “appropriates” in s209(1) of the Code). The learned Magistrate does not identify in his reasons when this occurred. His Worship referred to the placing of the money in the jacket pocket and not being placed in office funds as “not accounted for” by the confusion as to whether or not Ms Wauchope was entitled to the money. But the evidence of Ms Cubillo is that this confusion continued and was not finally resolved until the Thursday morning. The appellant in her record of interview denied hearing the conversation between Ms Cubillo and Ms Wauchope at the reception desk. His Worship made no finding on this issue. However, whichever way one looks at the evidence, there is a reasonable possibility that the appellant did not know until after Tuesday 20 June that a decision had been firmly made by ALPA that Ms Wauchope was not entitled to receive the money. In those circumstances, it is not possible to infer that the appellant stole the money on Tuesday 20 June. If the appellant did steal the money it is at least equally probable that she stole it at some later time. I therefore find that ground 1 of the notice of appeal is made out.
Of course the information might have been sought to have been amended vide s183 of the Justices Act or s312(1) of the Criminal Code, but this did not occur. Nevertheless I will consider the possibility that the appellant could have been convicted of stealing the money after 20 June as relevant to my decision as to whether or not to order a retrial. In paragraphs [14] to [15] above I referred to some of the difficulties in this case. The absence of evidence that the money she returned on Monday 10 July was not the same money as she had received in exchange for the cheque on 20 June, and the absence of any explanation for the failure to call as a witness the person alleged by the appellant to have known she cashed the cheque, makes it difficult to draw a conclusion beyond reasonable doubt without relying on lies as admissions of guilt that she ever appropriated the money with the intention of depriving ALPA of it. I consider that in the circumstances a retrial should not be ordered.
Orders
The appeal is allowed. The conviction and sentencing order is set aside. I direct that a verdict of not guilty be entered.

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