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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Assan v Gokel

Details

AGLC: Assan v Gokel [2001] NTSC 84
Case: [2001] NTSC 84
Decision Date: 5 October 2001

CaseChat Overview and Summary

The case of Assan v Gokel involved the appellant, Ms Assan, who worked for the Australian Labor Party Aboriginal Affairs (ALPA). The dispute arose when Ms Assan cashed a cheque intended for Julie Wauchope, who was attending a board meeting on behalf of someone from Croker Island. Typically, board members were provided with accommodation and food, but if they stayed elsewhere, they received a travelling allowance of $80 per day. Ms Wauchope, not staying at Mirambeena Lodge, was given a cheque for $240. However, Henry Harper later informed Ms Assan that Ms Wauchope was not entitled to the allowance as she lived in Darwin. Despite this, Ms Assan cashed the cheque and kept the money in her desk drawer, later transferring it to her jacket pocket.

The legal issues before the court involved the discrepancies in Ms Assan's account of events, including her handling of the cheque and the subsequent actions she took with the money. The central question was whether Ms Assan acted negligently or dishonestly by cashing the cheque without proper consultation and subsequently mismanaging the money. The court had to consider the reliability of Ms Assan's evidence, her explanation for cashing the cheque, and the steps she took to retrieve the money and return it to ALPA.

The court meticulously examined the evidence and Ms Assan's testimony. It noted inconsistencies and the lack of clarity in her explanations. The court found that Ms Assan's actions were not consistent with someone who had inadvertently cashed the cheque and then forgotten about the money. The court concluded that Ms Assan's explanations were not credible and that she had failed to properly manage the funds entrusted to her. The court held that Ms Assan's conduct demonstrated a lack of care and responsibility, amounting to negligence and mismanagement.

Ultimately, the court found in favour of the respondent, Gokel, holding that Ms Assan was liable for the misappropriated funds. The court ordered Ms Assan to compensate Gokel for the amount of $240, reflecting the value of the cheque that was improperly cashed and handled.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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