Dahlstrom v The Queen
[2000] TASSC 53
•29 May 2000
[2000] TASSC 53
CITATION: Dahlstrom v R [2000] TASSC 53
PARTIES: DAHLSTROM, Margaret Carolyn
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 97/1999
DELIVERED ON: 29 May 2000
DELIVERED AT: Hobart
HEARING DATE: 7 March 2000
JUDGMENT OF: Cox CJ, Crawford J, Evans J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: A R Jacobs
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 53
Number of paragraphs: 65
Serial No 53/2000
File No CCA 97/1999
MARGARET CAROLYN DAHLSTROM v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
CRAWFORD J
EVANS J
29 May 2000
Orders of the Court:
Appeal dismissed.
Serial No 52/2000
File No CCA 97/1999
MARGARET CAROLYN DAHLSTROM v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
29 May 2000
I agree with the Reasons for Judgment prepared by Crawford J which I have had the advantage of perusing. The appeal should be dismissed.
File No CCA 97/1999
MARGARET CAROLYN DAHLSTRÖM v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
29 May 2000
The appellant was charged with 65 counts, being 7 counts of burglary, 10 of stealing, 16 of forgery, 16 of uttering and 16 of obtaining goods by a false pretence. She pleaded guilty to counts 63, 64 and 65, which charged her with 2 counts of burglary and 1 count of stealing, all committed on 28 May 1997. She pleaded not guilty to counts 1 - 62, but a jury found her guilty of them all. She was convicted on all counts and sentenced to 3½ years' imprisonment.
She appealed against the convictions. At the hearing of the appeal against the convictions, six grounds of appeal were relied upon by her. The last three were added by way of amendment, having first appeared in a letter sent by the appellant to an Acting Deputy Registrar of the Court. The grounds are:
"1 I had no legal representation. This was not from choice but because after eighteen adjournments (at which I was represented) and the on-going uncertainty regarding the date of the trial (which throughout 1999 prevented me from working) I had no funds for representation.
2 I was given inaccurate and misleading information by the Prosecution regarding the calling of witnesses. A number of important witnesses were omitted, contrary to what I had been told.
3 New information arose following a chance meeting with someone previously charged with these matters. This occurred at the end of the trial; I had no opportunity to research it in time or call relevant witnesses.
4 At the time of my arrest and interview police refused to allow me to contact a solicitor. I have prepared an Affidavit relating to this; again it will be forwarded when it has been witnessed.
5 The prosecutor presented several pieces of prejudicial and inadmissible evidence. Pages 368-371, 374-375 and page 411 indicate inaccurate, misleading and inadmissible evidence presented in the form of questions to me, relating to non-existant [sic] bank accounts; pages 393-397 of the transcript and page 102 of the trial book (evidence of Dale) indicate matters raised and claims made relating to handwriting - samples of which had not been presented to the handwriting expert; pages 378-381 of the transcript indicate claims made by the prosecutor that I stole a licence from a school in Sydney which was untrue and inadmissible.
6 There is also inaccurate and misleading information in the evidence of Detective Richard Boyd, pages 259-260 of the transcript."
The appellant did not rely on any one ground as justifying the upholding of the appeal against the convictions, but said that she relied on the overall effect of them all. Before dealing with the grounds, it is necessary to consider the counts in the indictment and the nature of the Crown case as presented to the jury. The appellant did not contest that the crimes charged were committed. What she contested was that she was the responsible person, so far as concerned counts 1 - 62.
The counts related to four different dates. At all material times, the appellant resided in Melbourne. Counts 1 - 27 concerned events which occurred in the Hobart area on 26 August 1996. It was alleged that the appellant committed a burglary at St Mary's College, Hobart (count 1), from where she stole a purse containing approximately $40, a number of credit cards, a driver's licence and a quantity of personal papers, all belonging to Jane McCrossan (count 2) and a purse containing an SBT or Trust Bank Premier card, a Teachers Police and Nurses' credit card, $50 and a quantity of personal papers, all belonging to Elizabeth Pauline Ashley ("Ashley") (count 3). Admitted facts were that those purses and the contents of them were stolen on that day from the same staff room at St Mary's College, that the appellant had no right to be in the College and that, if she was there, she was a trespasser. It was also admitted that most of the stolen items were later found by an employee of Rentokil in a sanitary bin collected from a ladies' toilet in one of several locations in Hobart that included K & D, Murray Street, and the Melville Street car park.
It was next alleged that on the same day the appellant went to a branch of the Teachers Police and Nurses' Credit Union and having, with intent to defraud, forged a withdrawal form for $3,000 by signing Ashley's name (count 4), she uttered the forged withdrawal form (count 5) and by falsely pretending that the withdrawal form was a document validly completed by Ashley, obtained $3,000 from the credit union (count 6). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it to obtain by false pretences the $3,000 from the branch of the credit union.
It was alleged that on the same day the appellant went to the Liverpool Street, Hobart branch of the Trust Bank and having, with intent to defraud, forged a withdrawal form for $4,500 by signing Ashley's name (count 7), she uttered the forged withdrawal form (count 8) and by falsely pretending that the withdrawal form was a document validly completed by Ashley, obtained $4,500 from the Trust Bank (count 9). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 9.59am that day to obtain by false pretences the $4,500 from the Liverpool Street branch of the Trust Bank. Evidence was given by the teller, Deborah Peggy Ransley, that in June 1997, she was shown a set of 12 photographs of different women, which included the appellant and one Helen Soucy, and she selected the photograph of the appellant as being the woman she served that day.
It was alleged that on the same day the appellant went to the Collins Street, Hobart branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Ashley's name (count 10), she uttered the forged withdrawal form (count 11) and by falsely pretending that the withdrawal form was a document validly completed by Ashley, obtained $6,700 from the Trust Bank (count 12). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 10.17am that day to obtain by false pretences the $6,700 from the Collins Street branch of the Trust Bank. Evidence was given by Detective Constable Boyd that subsequently the bank teller who was involved in that transaction, Ms Jacqui Hayes, was shown photographs of 15 different women, which included Helen Soucy, but not the appellant, and she identified Helen Soucy as the woman in question. Ms Hayes was not called as a witness.
It was alleged that on the same day the appellant went to the Murray Street, Hobart branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Ashley's name (count 13), she uttered the forged withdrawal form (count 14) and by falsely pretending that the withdrawal form was a document validly completed by Ashley, obtained $6,000 from the Trust Bank (count 15). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 10.31am that day to obtain by false pretences the $6,000 from the Murray Street branch of the Trust Bank.
It was alleged that on the same day the appellant went to the Moonah branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Ashley's name (count 16), she uttered the forged withdrawal form (count 17) and by falsely pretending that the withdrawal form was a document validly completed by Ashley, obtained $5,000 from the Trust Bank (count 18). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 10.54am that day to obtain by false pretences the $5,000 from the Moonah branch of the Trust Bank. Evidence was given by the teller, Matthew Vernon Tuckett, that some time in the second half of 1997 he was shown the set of 12 photographs, which included photographs of Helen Soucy and the appellant, and he selected the photograph of the appellant as the one which "best fitted my memory of the incident". On being asked in cross-examination how he could be so clear about his identification after 12 months, he said that the main feature he remembered was "the long hair parted in the middle". Evidence was also given by Sharee Anne Nicols, Mr Tuckett's supervisor, who had been called upon by Mr Tuckett to authorise the transaction, that on 29 April 1997 she selected the photograph of Helen Soucy from the set of 15 photographs which did not include the appellant, as being the woman in question. She explained that she "felt that it looked like the lady that Mr Tuckett was serving at the time." She had not spoken to, nor did she deal with, the woman in question. At no time did she see the other set of 12 photographs which included both Helen Soucy and the appellant.
It was alleged that on the same day the appellant went to the Glenorchy branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Ashley's name (count 19), she uttered the forged withdrawal form (count 20) and by falsely pretending that the withdrawal form was a document validly completed by Ashley, obtained $6,500 from the Trust Bank (count 21). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 11.14am that day to obtain by false pretences the $6,500 from the Glenorchy branch of the Trust Bank.
It was alleged that on the same day the appellant went to the Claremont branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Ashley's name (count 22), she uttered the forged withdrawal form (count 23) and by falsely pretending that the withdrawal form was a document validly completed by Ashley, obtained $6,500 from the Trust Bank (count 24). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 11.34am that day to obtain by false pretences the $6,500 from the Claremont branch of the Trust Bank.
It was alleged that on the same day the appellant went to the Bridgewater branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Ashley's name (count 25), she uttered the forged withdrawal form (count 26) and by falsely pretending that the withdrawal form was a document validly completed by Ashley, obtained $6,500 from the Trust Bank (count 27). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 11.55am that day to obtain by false pretences the $6,500 from the Bridgewater branch of the Trust Bank. A bank officer, Jane Maree Bantoft, gave evidence that she dealt with the woman who obtained the money from the bank. Ten months later, in June 1997, she was shown the set of 12 photographs of different women, which included Helen Soucy and the appellant, and she identified the appellant as the woman in question. Evidence was also given by another bank officer, Aileen Mary Cooper, that she had assisted Miss Bantoft by authorising the transaction and although she had no discussions with the woman who withdrew the money, she was also able, in June 1997, to select the photograph of the appellant from the set of 12 photographs, which included Helen Soucy, as being of that woman. She commented that all of the photographs were of dark-haired women, but she was able to be positive of her identification because of the eyes and the hair.
Counts 28 - 45 concerned events which occurred in the Hobart area on 8 April 1997. It was alleged that the appellant committed a burglary at Fahan School, Hobart (count 28) from where she stole a wallet containing approximately $50, a number of credit cards, a driver's licence and quantity of personal papers and cards, the property of Christine Wilson (count 29) and a wallet containing a Trust Bank Visa card, approximately $300 and a quantity of personal papers and card, the property of Elaine Bendzulla ("Bendzulla") (count 30). It was an admitted fact that those wallets and those contents were stolen on that day from the same staff room at Fahan School, that the appellant had no right to be in the school and that, if she was there, she was a trespasser.
It was next alleged that on the same day, the appellant went to the Liverpool Street, Hobart branch of the Trust Bank and having, with intent to defraud, forged a withdrawal form by signing Bendzulla's name (count 31), she uttered the forged withdrawal form (count 32) and by falsely pretending that the withdrawal form was a document validly completed by Bendzulla, obtained $1,500 from the Trust Bank (count 33). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 1.04pm that day to obtain by false pretences the $1,500 from the Liverpool Street branch of the Trust Bank. Evidence was given by Glenn Tye Siggins, the teller who gave the offender the money, that on 7 June 1997, he was shown the set of 12 photographs of women, which included Helen Soucy and the appellant, and he identified the appellant as the woman with whom he had dealt.
It was alleged that on the same day, the appellant went to the Collins Street, Hobart branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Bendzulla's name (count 34), she uttered the forged withdrawal form (count 35) and by falsely pretending that the withdrawal form was a document validly completed by Bendzulla, obtained $1,800 from the Trust Bank (count 36). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 1.12pm that day to obtain by false pretences the $1,800 from the Collins Street branch of the Trust Bank.
It was alleged that on the same day, the appellant went to the North Hobart branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Bendzulla's name (count 37), she uttered the forged withdrawal form (count 38) and by falsely pretending that the withdrawal form was a document validly completed by Bendzulla, obtained $1,800 from the Trust Bank (count 39). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 1.37pm that day to obtain by false pretences the $1,800 from the North Hobart branch of the Trust Bank.
It was alleged that on the same day, the appellant went to the Moonah branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Bendzulla's name (count 40), she uttered the forged withdrawal form (count 41) and by falsely pretending that the withdrawal form was a document validly completed by Bendzulla, obtained $1,500 from the Trust Bank (count 42). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 1.52pm that day to obtain by false pretences the $1,500 from the Moonah branch of the Trust Bank.
It was alleged that on the same day, the appellant went to the Glenorchy branch of the Trust Bank and having, with intent to defraud, forged another withdrawal form by signing Bendzulla's name (count 43), she uttered the forged withdrawal form (count 44) and by falsely pretending that the withdrawal form was a document validly completed by Bendzulla, obtained $1,400 from the Trust Bank (count 45). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it at 2.13pm that day to obtain by false pretences the $1,400 from the Glenorchy branch of the Trust Bank. Evidence was given by the teller, Jodie Anne Ball, that subsequently, on 29 April 1997, the police showed her the set of 15 photographs which included Helen Soucy but not the appellant, and she selected Soucy as the person who obtained the money. She pointed out that the photograph she selected showed a woman with big, dark glasses and different clothes, including a "daggy" jumper which was not how the woman in the bank had presented herself. Possibly influenced by a belief that her identification was erroneous, she continued that "she looked very similar to me but it was hard to say because ¾I probably shouldn't have really signed it because it's hard to say with big glasses and the different way she was dressed, different style of clothing, it sort of threw me a little bit". Later again, in June 1997, she was shown the set of 12 photographs, which included both Soucy (wearing glasses) and the appellant (not wearing glasses), and straight away she selected the photograph of the appellant as definitely being the person, "a hundred per cent". The appellant did not cross-examine the witness relevant to what I have just related.
Counts 46 - 58 concerned events which occurred in the Launceston area on 19 May 1997. It was alleged that the appellant committed a burglary at Scotch Oakburn College, Launceston (count 46) from where she stole a wallet, approximately $25, a number of credit cards and a quantity of personal papers and cards, the property of Suzanne Creese (count 47). It was an admitted fact that the wallet and those contents were stolen on that day from a staff room at Scotch Oakburn College, that the appellant had no right to be in the College and that, if she was there, she was a trespasser. It was further alleged that on the same day she committed a burglary at St Patrick's College, Launceston (count 48) from where she stole a wallet containing approximately $20 and a number of credit cards, the property of Claire Dillon ("Dillon") (count 49). It was an admitted fact that the wallet and those contents were stolen on that day from a staff room at St Patrick's College, that the appellant had no right to be in the College and that, if she was there, she was a trespasser. It was also admitted that most of the stolen items referred to in counts 47 and 49 were later found by an employee of Rentokil in a sanitary bin collected from a ladies' toilet in Launceston.
It was alleged that on the same day, the appellant went to the Kings Meadows, Launceston branch of the Commonwealth Bank and having, with intent to defraud, forged a withdrawal form by signing Dillon's name (count 50), she uttered the forged withdrawal form (count 51) and by falsely pretending that the withdrawal form was a document validly completed by Dillon, obtained $2,500 from the Commonwealth Bank (count 52). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it to obtain by false pretences the $2,500 from a branch of the Commonwealth Bank. The evidence established that the branch was at Kings Meadows.
It was alleged that on the same day, the appellant went to the Charles Street, Launceston branch of the Commonwealth Bank and having, with intent to defraud, forged another withdrawal form by signing Dillon's name (count 53), she uttered the forged withdrawal form (count 54) and by falsely pretending that the withdrawal form was a document validly completed by Dillon, obtained $1,750 from the Commonwealth Bank (count 55). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it to obtain by false pretences the $1,750 from a branch of the Commonwealth Bank. The evidence established that it was the Charles Street branch.
It was alleged that on the same day, the appellant went to the Charles Street, Launceston branch of the Commonwealth Bank and having, with intent to defraud, forged another withdrawal form by signing Dillon's name (count 56), she uttered the forged withdrawal form (count 57) and by falsely pretending that the withdrawal form was a document validly completed by Dillon, obtained $400 from the Commonwealth Bank (count 58). Admitted facts included that someone forged the withdrawal form, that someone uttered it and that someone used it to obtain by false pretences the $400 from a branch of the Commonwealth Bank. The evidence established that, once again, it was the Charles Street branch.
The final group of crimes involve counts 59 - 65 and concern events which occurred in the general area of Hobart and Kingston on 28 May 1997. It was alleged that the appellant committed a burglary at Calvin Christian School, Kingston (count 59) from where she stole a purse containing approximately $80 and a quantity of personal papers, the property of Pamela Polmear (count 60), a wallet containing approximately $20 and a quantity of personal papers, the property of Phil Lardner (count 61), and a purse containing approximately $40 and a quantity of personal papers and cards, the property of Catherine Laning (count 62). Admitted facts were that those purses and the wallet, and their contents, were stolen on that day from a staff room at Calvin Christian School, that the appellant had no right to be in the School and that, if she was there, she was a trespasser. It was also admitted that most of the stolen items referred to in counts 60, 61 and 62, were later found by an employee of Rentokil in a sanitary bin collected from a ladies' toilet in one of several locations in Hobart that included Burger King and several businesses in the Elizabeth Mall. Evidence was given by Rosalie Asneth Vaughan Svennsen, the Deputy Principal at Calvin Christian School in charge of the Primary School, that at about 10.30am on the day of the burglary, she became suspicious of a woman walking through the school, including past the staff room. She described the woman as having long hair tied back in a pony tail, carrying a clip board and having a large bag over her shoulder. On the following day, Ms Svennsen was shown by the police the set of 12 photographs, which included Helen Soucy and the appellant, and she selected the photograph of the appellant as the woman in question. She said that she looked carefully through all the photographs but had no trouble identifying the photograph of the appellant as the person she had seen at the school. Although subsequently in her evidence the appellant denied being at the school, she did not cross-examine the witness. Evidence was also given by Robyn Rose Rader, an infant teacher at the same school, that at about 10.35 to 10.40am that day, she saw a woman with long hair and carrying a clip board, walk past the staff room. On the following day she also had no trouble identifying the appellant as the woman from an identical set of 12 photographs. She was not cross-examined by the appellant.
It is to be noted that both of the witnesses from Calvin Christian School referred to the woman carrying a clip board and the appellant accepted in evidence that she had brought a clip board to Hobart that day. She said that she had done so because she intended to make notes of properties, although she confessed to making none, giving as the reason that she had not seen anything that was particularly inspiring.
It was the appellant's evidence that whereas the theft at the Calvin Christian School occurred during the morning, she had been unaware that she was short of cash that day until lunch time (implying that her decision to steal that day was not made until after the Calvin thefts had been committed).
The jury learned that, on her own admission and plea of guilty, on the same day the appellant committed a burglary at the Collegiate School, Hobart with intent to commit the crime of stealing (count 63). She was thwarted when a member of the college staff spoke to her. She subsequently admitted to police officers that she had gone to the college with the intention of stealing from bags belonging to staff in the staff room. She had believed it would be easy to take purses from there, having seen inside a school staff room a few weeks before when on legitimate business, she said. Also on her own admission and plea of guilty, later that day she committed a burglary when she entered as a trespasser the Administration Building at the University of Tasmania, Hobart (count 64) and stole from there a purse containing approximately $100 and a quantity of personal papers and card, the property of Anne Hunt (count 65). The evidence established that she was arrested as she was leaving the University and found in possession of those items of property. At that time, she gave the police officers a false name (Linda Russell) which she maintained later that day in a video recorded interview with police officers. She had bandaids covering the tips of her fingers of the right hand (not the thumb), notwithstanding that when she was interviewed by the police later that day, there was no sign of injury beneath them.
She had in her possession a New South Wales driver's licence issued to Therese C Kenway of 71 Telopea Street, Redfern, New South Wales. She had used that licence when at about 9.30am that day at Hobart airport, she had given that name and address when she rented a car from Advance Car Rentals. The contract stated that the vehicle was due to be returned to the airport by 9.30am on the following day. When interviewed by the police officers she agreed that she had used the Kenway licence to rent a car from the same company over a month earlier when she had come to Hobart. She said that she had found the licence at a Sydney post office about four months earlier (it is noted that on her own admission that was untrue and that she told a great many lies to those officers about a number of matters, including her identity, her address and her movements). In the course of her evidence, it was pointed out to her that there had been tendered in evidence, an Advance Car Rental contract in the name of Therese Kenway (with the same details including address and licence number, as appeared in the contract under which she hired the car in Hobart on 28 May 1997) for the hire of a car in Hobart from 9.45am on 8 April 1997 until 12 noon the following day. (The crimes charged in counts 28 - 45 were committed in Hobart by someone on 8 April 1997.) In evidence she denied she was the hirer on 8 April, notwithstanding that she admitted to police on 28 May that she had hired a car in Hobart in Kenway's name about a month earlier. Although she had told the police on 28 May that she had been in possession of Kenway's licence for four months, in evidence she maintained that she could not remember how long it had been.
It was also pointed out to the appellant, in the course of cross-examination, that there was in evidence another Advance Car Rental contract in the name of Therese Kenway (with the same details once again) for the hire of a car in Launceston from 8am on 19 May 1997 for return to the Launceston airport at 4.30pm the same day. (The crimes charged in counts 46 - 58 were committed in Launceston by someone on 19 May.) She denied having been in Launceston that day. It is also to be noted that the signatures of "T Kenway" on each of the rental contracts for those three dates were extremely similar, although in evidence the appellant maintained the contrary to be the position. On being asked how anyone, other than herself, could have had Kenway's licence in Launceston only 10 days before 28 May 1997, she said that the only explanation she could think of was that somebody had taken the licence from her home and used it, although she could think of no one who might have done so and agreed that it was probable that nobody knew that she had the licence.
In evidence, the appellant said that she had flown to Hobart on 28 May 1997 for the purpose of looking round the city and suburban areas with a view to possibly moving to Hobart. She had "used false names and places, not only to police but in renting the car and even in booking my flight to Hobart", because she did not want her abusive and violent partner to trace her to Hobart, she said. She forgot to bring her purse containing identification and ATM cards. She said that when she realised that day that she had insufficient funds for her fare home, she panicked and decided to attempt to steal from the Collegiate School staff room and then from the University. One of the many patent lies told by her in evidence was that "the theft of someone else's property is inexcusable and all I can say, as a slightly mitigating circumstance, is that it did occur to me that I could mail the purse's contents back to the school or University, and after returning home could also repay the money".
The first occasion at the trial on which the question was raised concerning how the real Therese Kenway had come to lose possession of her driver's licence was when the appellant asked Detective Constable Boyd, in the course of cross-examination, when Miss Kenway had lost it or had it stolen. Detective Constable Boyd said that he had been told by Miss Kenway that she had lost it some months prior to 28 May 1997. It was the appellant's evidence that she had found the licence at a Melbourne post office.
Having admitted to police officers on 28 May 1997 that she had visited Hobart over a month earlier and had used the Kenway licence to rent a car from the same company as on 28 May, she was shown photographs taken of the offender by surveillance cameras at the various branches of the Trust Bank on 8 April 1997 (relevant to counts 28 - 45), and agreed that one certainly looked like her but "they're not so much like me that I would definitely say it's me" and "she looks like me … I don't think it's clear enough to say it's definitely me", after having earlier denied ever being in or having heard of the Trust Bank. Her response was not an unequivocal denial that the photograph was of her. It is noted that on 28 May 1997 she declined a request from the police that she participate in a lineup for the purpose of seeing whether witnesses could identify her.
Detective Constable Boyd arrested and interviewed the appellant on 28 May 1997. Under cross-examination by her (on 30 September 1999), he agreed that another woman, Helen Soucy, had been charged during the period of a previous "number of months" with "all of those incidents with the exception of the ones on the 28th May". It was then admitted as a fact that Helen Soucy had been charged with one count of forgery, one count of uttering and obtaining $1,200 from an account of S Jones at Westpac Bank on 8 April 1997. The appellant was not on trial with respect to those matters. Detective Constable Boyd said that two witnesses "to the Westpac incident" had identified Helen Soucy. Detective Constable Boyd agreed that there were a number of charges against Soucy which were withdrawn and the appellant had been charged in her place.
In cross-examination by the appellant, Detective Constable Boyd said that the set of photographs of 15 women, which did not include a photograph of her, had been shown to "a number of people at most banks", "probably 10", but he could not be certain. Photographs of Helen Soucy were in both that set of 15 and the other set of 12 photographs which also included a photograph of the appellant and which had been shown to some witnesses. He said that most of the people who had identified the appellant from the set of 12 photographs, had not seen the other set of 15 photographs. From his memory, only one bank teller had identified Helen Soucy from the set of 15 photographs and had later seen the set of 12 photographs. He added that the ones who saw both did not identify Helen Soucy initially but identified the appellant when shown the set of 12 photographs. He thought that there were 4, 5 or 6 witnesses who picked no one from the set of 15 photographs. During re-examination of Detective Constable Boyd, there were tendered into evidence copies of two of the sets of 15 photographs, by the use of which two witnesses from Westpac, named Davis and Spinks, had identified Helen Soucy in relation to the withdrawal from the account of S Jones on 8 April 1997, with respect to which the appellant was not on trial. However, Detective Constable Boyd believed that the appellant had, at some time, been charged in respect of the matter.
I turn to the grounds of appeal. The first ground is that the appellant had no legal representation at the trial. The law does not recognise the right of an accused person to be provided with counsel at public expense. Dietrich v R (1992) 177 CLR 292. The appellant did not seek to have the trial stayed because she was unrepresented. At a pre-trial hearing before Evans J, she confirmed that she expected to proceed with the trial without legal representation. When his Honour asked about legal aid, she said, "I don't think I am eligible for that, especially as someone from another State". At the hearing of the appeal, she explained the reason for not applying for legal aid differently, saying that she had been told that she would not be eligible because she owned a house. She confirmed to Evans J that over a period of several months she had discussions with lawyers in the course of her preparation for trial, which had informed her of the sort of issues that would be before the court. She explained that she had obtained degrees of Bachelor of Arts and Bachelor of Education from Monash University and had worked as a teacher at primary, secondary and tertiary levels in Australia and Stockholm and had worked as a language consultant. She appears to be intelligent and articulate, and presented as a confident person when conducting her case at the trial and her appeal before this Court.
The appellant did not rely on this ground as a basis for upholding the appeal. Rather, she presented it as explaining why miscarriages of justice occurred at the trial which, if she had been legally represented, would or could have been prevented by competent counsel. In particular, she appeared to be submitting that competent counsel would have prevented from arising the matters complained about in other grounds of appeal. She pointed to what she relied upon as examples of her incompetence when cross-examining witnesses, but her submissions in that regard were unconvincing. At the highest, she raised the possibility that on a few occasions she might have received a favourable answer if she had asked a particular question.
I will return to ground 2 later. By ground 3, the appellant asserts that at the end of the trial she received new information, which she had no opportunity to research and in respect of which she had no time to call relevant witnesses. She relied upon statutory declarations dated 23 November 1999 made by herself and Helen Soucy. Her own statutory declaration merely stated that she did not make the acquaintance of Helen Soucy until 1 October 1999 and was therefore unable at the trial to present information which came to her attention from Miss Soucy. In her statutory declaration, Miss Soucy stated that on 30 April 1997, police searched her home and interviewed her about certain alleged offences, which she denied committing. She was charged with those offences, but eventually on 2 June, they were dismissed at the invitation of the police prosecutor. Miss Soucy's statutory declaration does not detail the charges she faced. It makes a vague reference to Collegiate School which, on its face, is irrelevant, for there is no evidence that the appellant was charged with, nor was she convicted of, any crime concerning Collegiate School which was committed on or before 30 April 1997. (Count 63 concerns a burglary at Collegiate School on 28 May 1997.) Miss Soucy stated that in April 1997, she heard that she was the second person to have been charged with exactly the same offences, without stating what those offences were. That was hearsay information at best. Of course, the other person could not have been the appellant.
In her submissions to this Court, the appellant said that the matter which was brought to her attention by Miss Soucy was that another woman had been charged before Miss Soucy, so that the appellant was the third to be charged with the same offences. She said that if she had known of that earlier than she did (I understand from her statutory declaration that she received the information from Miss Soucy on 1 October 1999), she would have been able to investigate it and she might have discovered evidence which might have assisted her case. She confessed to being unable to say what that evidence or assistance might have been, but asserted a suspicion that it was there to be got. She accepted that all she had was the information based on hearsay from Miss Soucy and that she had "nothing tangible" which would assist her.
Although the hearsay information from Miss Soucy may have been received by the appellant on 1 October 1999, at the hearing of the appeal over five months later, she had nothing more substantial to put before the Court. Before an appellate court will be persuaded to allow an appeal for a miscarriage of justice based on the discovery of fresh evidence, it will usually need to be satisfied that the fresh evidence is apparently credible, or at least capable of belief, and that, if believed, the evidence might reasonably have led the jury to return a different verdict. Gallagher v R (1985 - 1986) 160 CLR 392 at 395 - 396. The appellant, however, has not put before the Court fresh evidence of that kind. What she claims to have which she asserts is fresh, is hearsay information which would not have been admissible at her trial. Even if it is true that a third person was first charged with some of the crimes of which the appellant was convicted, that information could not have persuaded the jury to return a different verdict. All she can say is that if she had investigated what she was told on 1 October 1999, it is possible that she might have discovered the existence of evidence which might have assisted her at the trial. That mere possibility cannot justify the setting aside of the convictions.
The fourth ground of appeal is that at the time of the her arrest and interview, police refused to allow her to contact a solicitor. The effect of the Criminal Law (Detention and Interrogation) Act 1995, s6(1), was that before any questioning might commence, the police officer conducting the investigation was required to inform her, being a person in custody, that she might (inter alia) communicate with, or attempt to communicate with, a legal practitioner. The effect of subs(2) was that if she requested to communicate with a legal practitioner, the police officer conducting the investigation was required to defer the questioning for a reasonable time to enable her to make, or attempt to make, the communication. A failure by the police officers to inform the appellant of her rights under subs(1) would not have rendered the evidence of her subsequent interview inadmissible, unless the trial judge exercised the discretion he had to exclude unfairly, illegally or improperly obtained evidence.
At the hearing of the appeal, the appellant relied on the contents of a statutory declaration made by her on 23 November 1999, in which she stated that when she was arrested on 28 May 1997, she asked the arresting officers to allow her to contact a solicitor, but was refused. She stated that she repeated the request at least twice prior to the video recorded interview and was refused each time. She was not allowed to contact a solicitor until some time after the completion of the interview.
Towards the end of the video recorded interview the appellant said that she wanted to see a solicitor, in answer to a request that she take part in a line-up. In the course of a voir dire concerning the admissibility of photographic evidence, Detective Constable Baker gave evidence that after the video recorded interview with the appellant, she spoke to a solicitor following which she declined to participate in a line-up and to say anything further.
There is nothing in the appellant's statutory declaration, and therefore no evidence, to suggest that she did not know at the time of the trial that she had a right to communicate with a legal practitioner before being interviewed (although at the hearing of the appeal she asserted in the course of her submissions, that she did not know that). She did not seek at the trial to have the evidence excluded because she had not known that or because she had not received the advice required by s6(1) before the interview commenced. There is no evidence to suggest that if the police officers had advised her of her right, she would not have participated in the interview or stated what she did in the course of it. The evidence established that at the time of her arrest at the University, she was cautioned that she did not have to say anything to the police unless she wished to. She was cautioned again at the outset of the interview and twice more during its course. She had an extensive record of convictions for crimes and offences of dishonesty in South Australia and Victoria from which it may confidently be assumed, in the absence of evidence to the contrary, that she was well aware of her right not to answer questions from the officers.
Upon the basis of the material before this Court therefore, it has not been established that there is any likelihood that if the appellant had communicated with a legal practitioner prior to being interviewed she would not have said to the police what she in fact said, or that she might have been able to persuade the trial judge to exercise his discretion in her favour and exclude the evidence of the interview. The appellant has failed to establish this ground of appeal as a basis for overturning her convictions.
By ground 5, the appellant asserts that inadmissible, prejudicial, inaccurate and misleading evidence was heard by the jury. In this regard, she referred to:
·cross-examination of her concerning whether she had a bank account in Western Australia and in Victoria in each of which she had about $40,000;
·cross-examination of her about whether in early July 1997, on her release from prison on bail pending her remand, she went to a Hobart shop and purchased new clothes;
·cross-examination of her about whether she stole the driver's licence of Therese Kenway from the Sydney Girls' High School near Centennial Park, Sydney in early 1997;
·cross-examination of her concerning whether she agreed that the signatures of "T Kenway" on each of the three car rental contracts with Advance Car Rentals of 8 April, 19 May and 28 May 1997, were similar, she having admitted that it was her signature on the contract of 28 May.
I will deal first with the questions concerning her bank accounts. She submitted that the jury might have thought that she had money in bank accounts which she had obtained by unlawful means and that would have been prejudicial to her. The questions were asked because only a minute or two earlier, at the end of her evidence-in-chief, she had said to the jury that if she had been able to afford it, she would have brought witnesses from Victoria to give evidence of her whereabouts on 26 August 1996, 8 April 1997 and 19 May 1997 and witnesses to explain why it was that she had been able to make substantial purchases of assets and air travel at about the time of the commission of the crimes in 1997. Counsel for the Crown was entitled to cross-examine her about her financial position, in an attempt to show that what she had said was untrue, and in an attack on her credit. In any event, she denied what was put to her in cross-examination about the existence of the two bank accounts. The jury were directed by the learned trial judge in his summing up, that questions were not evidence, only answers were, and that it followed that there was no evidence that she had those accounts. There is no substance in her complaint that she was cross-examined about the accounts.
In the course of cross-examination, the appellant gave evidence that on her release from prison while on remand, having been bailed in early July 1997, she took a bus to Launceston and then Devonport, and an aircraft to Melbourne. Before getting on the bus, she went to her solicitor's office to collect her Bank of Melbourne card, to a bank to withdraw money and to a shop to buy a jumper because it was cold. When pressed, she conceded she may have purchased a new outfit, but not a new wardrobe. At the hearing of the appeal, she complained of the cross-examination because, in her submission, it amounted to the presentation of inaccurate and prejudicial information, although couched in the form of questions. This Court can come to no such conclusion. Nothing of what the appellant was asked and answered in this regard has been shown to be inaccurate or prejudicial. The prejudicial aspect was not identified by the appellant, but if she was referring to the possibility that the jury might have gained the impression that she was in a sound financial position, the Crown had every right to seek to establish that at a time shortly after she had allegedly committed, with success, a great number of crimes of dishonesty (on 8 April and 19 May 1997), she had substantial funds. Her sound financial position at the time would have been a material consideration for the jury.
There is no dispute that the driver's licence of Therese C Kenway, which was admittedly used by the appellant on 28 May 1997 to hire a car, and which had been used by someone to hire cars from the same rental company on 8 April and 19 May 1997, in fact belonged to Ms Kenway, whose address was in Redfern, New South Wales. When being interviewed by the police on 28 May 1997, the appellant said that she had found the licence in a post office in Sydney about four months previously and that while she acknowledged that she "should have handed it in or mailed it to its owner", she had kept it because she thought it might be useful to have identification in a name other than her own. She said she had not used it much and she mentioned that she had rented a car and used it on a couple of other occasions. Crown counsel asked her in cross-examination, whether her statement to the police that she had found the licence at a Sydney post office was false. She agreed. There was no need for her to say any more. However, without a further question, she added, "I did find the licence, I did find it in a post office, but not in Sydney …it was the GPO in Melbourne". If she had simply admitted that her original claim to the police was false, the matter might have ended there, but by adding an assertion that she had nevertheless found it at another post office, she was inviting cross-examination about the matter. Crown counsel was under no obligation to accept her evidence about the matter. He suggested that she had stolen it from Sydney Girls' High School near Centennial Park in Sydney, by entering the staff room of the school and stealing a purse containing the licence. She adamantly denied the suggestion and asserted that she had last been in Sydney in about 1993, that she did not know the high school or Centennial Park and that the "driver's licence was lost in 1995". The matter was allowed to rest there. The appellant did not object to being asked those questions about the licence and the learned trial judge did not intervene.
The appellant submitted to this Court that as a result, inaccurate and prejudicial information was presented by prosecuting counsel to the jury. The submission should be understood in the light of her evidence as to how she came to have the licence in her possession, for the facts asserted by her almost certainly amounted to an admission that she had stolen the licence by finding and deciding to keep it. The address of the licence holder was on the licence and the appellant had made a conscious decision, and plainly a dishonest one, to keep the licence and use it instead of returning it. Therefore, it is effectively her complaint that instead of accepting her assertion that she had stolen the licence by finding, Crown counsel had asked her in front of the jury whether instead she had stolen it and the purse containing it, from the staff room at a Sydney school, in the course of a trial arising out of charges that she had stolen ten purses or wallets from five different schools and a university on four different dates, and in the context of an indictment which charged her with 65 crimes of dishonesty.
The risk of prejudice to the appellant, by suggesting that she may have stolen a purse containing the licence from a Sydney school, was extremely small. I repeat that the learned trial judge directed the jury that questions were not evidence, only answers were. There was no evidence that the appellant had in fact stolen the licence. In all the circumstances, even if the point raised by the appellant should be decided in her favour, I would reject it as a basis for allowing the appeal because no substantial miscarriage of justice actually occurred.
To my eye, the signatures of "T Kenway" on each of the three car rental contracts with Advance Car Rentals of 8 April, 19 May and 28 May 1997, were similar. The appellant admitted that she had signed the name on the contract of 28 May. There was no evidence from a handwriting expert that in his opinion the same hand had written the signatures. In a fairly lengthy piece of cross-examination, counsel for the Crown put to the appellant that the signatures were the same, or essentially so, and he pointed out to her the formation of various letters and other aspects of the signatures. The appellant's complaint to this Court was that the jury would have gained the impression that counsel for the Crown was stating facts and not asking questions and that only a handwriting expert should have been allowed to give evidence about the question. There is no rule of law which prevented counsel for the Crown putting to the appellant in the course of cross-examination that the signatures were all hers and that the signatures were extremely similar. Ultimately the question whether she was the hirer of the respective vehicles on all occasions was a question for the jury and the jury would have been entitled to compare the signatures, knowing that the signature on the contract of 28 May 1997 was written by the appellant.
The Evidence Act 1910, s108, provides that comparison of a disputed handwriting with any writing proved to the satisfaction of the judge or person acting judicially to be genuine may be made by witnesses, and such writings and the testimony of witnesses respecting them may be submitted to the court and the jury as evidence of the genuineness or otherwise of the writing in dispute. In this case the signature on the contract of 28 May 1997 was proved to be genuinely that of the appellant. It matters not that she signed someone else's name. The section authorised questioning of witnesses, including the appellant, in the course of a comparison of the disputed signatures with the one admitted by the appellant to have been written by her.
The sixth ground of appeal was not pursued by the appellant as a separate ground. She said it would be argued as part of ground 2, although I do not think that occurred. I am not aware that Detective Boyd, at pages 259 - 260 of the transcript, gave inaccurate and misleading evidence.
By ground 2, the appellant asserts that she was given inaccurate and misleading information by the prosecution regarding the calling of witnesses and that a number of important witnesses were not called, contrary to what she had been told. At a preliminary hearing before Evans J on 27 September 1999, counsel for the Crown said that in relation to counts 1 - 27, which charged the crimes committed in Hobart on 26 August 1996, various people who were at the Trust Bank and other places were shown a number of photographs of people (the set of 15 photographs to which I referred earlier), which did not include the appellant. Some of those people, together with other people who were at the Trust Bank in 1997, were shown the set of 12 photographs (to which I referred earlier), which did include the appellant. Crown counsel said that a number of those people had identified the photograph of the appellant as being of the offender and he would be seeking to tender the photographs shown to those people and photostat copies of them on which the identifying persons had signed, confirming their identification. Counsel said that a number of the people who saw the set of 15 photographs in 1996, which did not include the appellant, had selected another person (Helen Soucy). Counsel then identified the witnesses he proposed to call and summarised what they would say. He said that he would call seven Trust Bank tellers being Schumann (counts 7 - 9, to say that she identified a photograph of the appellant as the offender in 1997), Tuckett (counts 16 - 18, to give similar evidence), Nicols (counts 16 - 18, to give evidence that in 1996 she selected a photograph of Helen Soucy from the set of 15 photographs, as the offender), Bantoft (counts 25 - 27, to give evidence that in 1997 she identified a photograph of the appellant as being of the offender), Cooper (counts 25 - 27, to give evidence to the same effect as the evidence of Bantoft), Siggins (counts 31 - 33, to give evidence that in 1997 she identified a photograph of the appellant as being of the offender) and Ball (counts 43 - 45, to give evidence that in 1996 she identified a photograph of Soucy from the set of 15 photographs as being of the offender but in 1997 she identified a photograph of the appellant from the set of 12 photographs, as being of the offender). It was intended that the relevant sets of photographs would be admitted as exhibits. Counsel said that he would not be calling a witness who was out of the State. The name of that person was Hayes and, in connection with counts 10 - 12, that person, who was a Trust Bank officer, had selected a photograph of Soucy from the set of 15 photographs, as being of the offender. Crown counsel explained that if the appellant, when cross-examining Detective Constable Boyd, asked about the matter, Constable Boyd would give evidence that Ms Hayes had identified Soucy and, if requested, the Crown would tender the relevant set of 15 photographs. Those events occurred during the appellant's cross-examination of Constable Boyd. Crown counsel also explained that two witnesses, Rader and Svennsen, members of staff at Calvin Christian School, would be called to give evidence, in relation to counts 59 - 63, that they identified a photograph of the appellant as being of the person they saw in the school grounds.
It was also stated by Crown counsel to Evans J that with respect to 1996 matters concerning Westpac Bank, with which the appellant was not charged, there were two witnesses called Davis and Spinks, who had identified Soucy as the person who fraudulently forged, uttered and obtained money by a false pretence. He said that if the appellant asked Detective Constable Boyd about that in cross‑examination, the officer would admit those facts and if requested, the Crown would tender the two sets of 15 photographs on which the witnesses made their respective identifications. Those events in fact occurred during the cross-examination of Constable Boyd.
It appears that in the cases of an identification of Soucy, the material witnesses were called (Nicols and Ball) or the detail of that identification was in evidence before the jury (Hayes, Davis and Spinks).
Counsel for the Crown explained to Evans J that the only other witnesses he would call were Detective Constable Boyd, possibly another police officer who was present when the appellant was apprehended or interviewed, another police officer as to matters which occurred at Kingston, Mrs Hardy from the Collegiate School, Mrs Payton from Advanced Car Rentals and Sergeant Dale, a handwriting expert. Counsel then explained the facts which it was proposed the Crown and the appellant would admit.
What was said by Crown counsel to Evans J was said in the presence of the appellant. It was clear that as a result of the admissions of certain facts, a number of witnesses would not need to be called. Although the appellant said that she only wanted to question witnesses relating to matters of identity, she affirmed that "in the interests of getting the matter over and done with as quickly as possible I am quite happy for these witnesses not to appear and to make those admissions".
At a further conference before Wright J on 28 September 1999, at which the appellant was also present, counsel for the Crown essentially confirmed the detail of the witnesses he proposed to call which had been stated to Evans J. He also confirmed what Detective Constable Boyd would say in evidence, if cross-examined by the appellant about the matters, concerning the identification of Soucy by Hayes, Davis and Spinks, and affirmed that the sets of photographs shown to those three persons would also be tendered, if requested by the appellant.
In her written submissions to this Court, the appellant said that it was "unambiguously clear that I wanted to question those missing witnesses". To this Court she said that Ms Hayes was a vital witness whom she had wanted to question. She also pointed to statements police had obtained from witnesses named Stevenson, Baker, Cox, Nankervis, Cornelius and Cashion, who she said, if they had been called, might have given a consistent description of the offender which was unlike her. She said that there was a chance that their evidence would have established that she was not the offender. However, on the basis of the transcript I conclude that at no time did the appellant express any concern about who would not be called as a witness. By the conclusion of her oral submissions to this Court, she had conceded that Crown counsel did not inform her that he would call the witnesses concerning whose absence she now complains. She conceded that she was not given inaccurate and misleading information by the prosecution, as is asserted by ground 2, relying only on a complaint that if she had been represented by counsel at the trial she might not have made the admissions of fact thereby forcing the Crown to call more witnesses, and her case might have been conducted on a different basis. Expressing it in other words, she asked that her appeal be upheld because she handled her case badly. However, she did not establish that the result of the trial was likely to have been different and there was no merit in what she asserted.
I have dealt with all the grounds of appeal. However, during the course of her submissions the appellant applied to amend her notice of appeal by adding an additional ground in terms "that the learned trial judge erred in allowing the jury to know I had pleaded guilty to other charges". Possibly by oversight, this Court did not give leave, but it is appropriate to address the point the appellant wished to make. It was her argument that, as she had pleaded guilty to counts 63, 64 and 65, it was improper and unfair that the jury, when considering counts 1 - 62, should have been informed of her pleas of guilty and of the facts surrounding counts 63, 64 and 65. Count 63 concerned the burglary at Collegiate School. She was thwarted when a member of staff, Mrs Hardy, spoke to her. Mrs Hardy gave evidence at the trial. Counts 64 and 65 concerned her admitted burglary and theft at the University, shortly after she left Collegiate School. She was in fact arrested as she was leaving the University with a stolen purse.
The learned trial judge ruled that the evidence of the commission by the appellant of counts 63, 64 and 65 was relevant and admissible, and he allowed it to be given. The relevant rule of evidence is that the prosecution may not adduce evidence of the misconduct of the accused on occasions other than those for which he or she is on trial before the jury, if that evidence shows that the accused had a propensity to commit crime, or crime of a particular kind, or was the sort of person likely to have committed the crimes charged, unless the evidence is sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause. See Cross on Evidence, 6th Aust ed, par21010. The learned trial judge observed that by merely pleading guilty to counts 63, 64 and 65 the appellant could not exclude evidence of their commission by her from the trial of the other counts, and he ruled that such evidence was clearly relevant to counts 1 - 62 and admissible.
This was a case of similar fact evidence. That the appellant was, on her own admission, in the Hobart area on 28 May 1997, driving a car hired by her from Advance Car Rentals, and committing burglaries and stealing, or attempting to steal, property belonging to staff at the Collegiate School and the University, was of considerable probative force with regard to the burglary and thefts of the property of staff at the Calvin Christian School (counts 59 - 62) on the same day, and particularly the burglaries and thefts, and other crimes, charged with respect to earlier dates. It was highly probative, when considering counts 28 - 30 and 46 - 49, that the appellant committed burglaries and thefts on 28 May 1997 at a time when she was the hirer of a car from a rental company using the name of T Kenway, for on the days that those counts were committed a person had also hired a car from the same rental company in the name of T Kenway, in the case of counts 28 - 30, at Launceston and in the case of counts 46 - 49 at Hobart. On her own admission she had T Kenway's driver's licence in her possession. It is unnecessary to give all the detail, but there were other similarities between the circumstances of the various crimes which made this a classic case for the evidence relating to one count (whether or not admitted by the appellant to have been committed by her) to be highly relevant and probative on other counts.
For the reasons I have given I would dismiss the appeal.
File No CCA 97/1999
MARGARET CAROLYN DAHLSTRÖM v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
29 May 2000
I have had the advantage of reading the Reasons for Judgment of Crawford J. I agree with them. The appeal should be dismissed.
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