Director of Public Prosecutions v Morton
[2024] ACTSC 98
•10 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Morton |
Citation: | [2024] ACTSC 98 |
Hearing Date: | 31 January 2024 |
Date of last submissions: | 1 March 2024 |
Decision Date: | 10 April 2024 |
Before: | Mossop J |
Decision: | See [41] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency and coincidence evidence – 328 charges of dishonestly obtaining property by deception by director of a childcare centre – trial to be by judge alone – whether evidence on charges should be cross‑admissible for identified tendency and coincidence purposes – it should – turns on own facts |
Legislation Cited: | Criminal Code 2002 (ACT), s 326 Evidence Act 2011 (ACT), ss 97, 98, 101(2), 192A |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 263 CLR 338 R v Cook [2021] ACTSC 270 R v Gale [2012] NSWCCA 174; 217 A Crim R 487 R v Hall [2019] ACTSC 350 R v Stevens [2021] ACTSC 308 |
Parties: | Director of Public Prosecutions ( Applicant) Emma Louise Morton ( Respondent) |
Representation: | Counsel T Hickey ( Applicant) D Berents ( Respondent) |
| Solicitors Director of Public Prosecutions ( Applicant) Kamy Saeedi Law ( Respondent) | |
File Number: | SCC 148 of 2023 |
MOSSOP J:
Introduction
1․The accused, Emma Louise Morton, has been charged with 328 offences of dishonestly obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT). She was the centre director of the Weston Creek Children’s Centre, which was run by a charity, Projects on Parkinson Ltd. The offending is alleged to have occurred between 27 February 2020 and 18 February 2021.
2․The prosecution seeks an advance ruling pursuant to s 192A of the Evidence Act 2011 (ACT) that it is permitted to adduce as tendency evidence and as coincidence evidence the evidence in relation to each of the 328 alleged offences. The amended application seeks the following orders:
That the prosecution be permitted to adduce tendency evidence of Incidents 1 to 328 in the Notice of Intention to Adduce Tendency Evidence dated 6 December 2023 to prove that the accused had the following states of mind and acted in particular ways, namely:
a. To use bank cards associated with bank accounts of her employer, Projects on Parkinson Ltd, to purchase goods, services or withdraw cash, for herself or others, which were not for work purposes, or to transfer amounts from its bank account into her own bank account or the bank accounts of third parties which were not for work purposes, knowing that they were not for work purposes or authorised by her employer.
b. To record entries in bank transfer information [on] her employer’s, Projects on Parkinson Ltd, accounting software which represented that the business banking online transfers or the telegraphic transfers were legitimate work related expenses, knowing they were not legitimate.
3․The amended application also identifies that the prosecution seeks to adduce coincidence evidence to establish that the accused had particular states of mind or acted in particular ways. The following orders are sought:
That the prosecution be permitted to adduce coincidence evidence of Events 1 to 328 in the Notice of Intention to Adduce Coincidence Evidence dated 6 December 2023 to [prove] that the accused had the following states of mind and acted in particular ways, namely:
a. That it was the accused who used bank cards associated with the bank accounts of her employer, Projects on Parkinson Ltd, to purchase goods services or withdraw cash, or caused amounts to be transferred from her employer’s bank accounts to her own bank account or the bank accounts of third parties.
b. That the accused intended to obtain or use amounts in her employer’s, Projects on Parkinson Ltd, bank accounts for herself and intended to permanently deprive it of those associated amounts.
4․Counsel for the accused accepted that evidence could be admitted for coincidence purposes to prove the second of the matters, identified at [3](b) above and, as a consequence, on 31 January 2024 I ruled as follows:
The prosecution is permitted to adduce coincidence evidence of events 1 to 328 in the Notice of Intention to Adduce Coincidence Evidence dated 6 December 2023 to prove that the accused had the following state of mind: that the accused intended to obtain or use amounts in her employer’s, Projects on Parkinson Ltd, bank accounts for herself and intended to permanently deprive it of those associated amounts.
5․That means that a ruling is required in relation to the two tendencies identified in the tendency notice (see [2](a) and (b) above), and the outstanding aspect of coincidence evidence identified in the coincidence notice (see [3](a) above).
Statutory requirements
6․Notice has been given for the purposes of s 97 of the Evidence Act. Section 97 requires that the evidence have significant probative value either by itself or having regard to other evidence to be presented. Probative value means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
7․Section 101(2) requires that the probative value of tendency or coincidence evidence outweighs the danger of unfair prejudice to the defendant. Unfair prejudice refers to the prejudice that might arise from the improper use of the evidence by the jury or tribunal of fact in some unfair way. It does not refer merely to the fact that the evidence is prejudicial because it supports the prosecution case.
8․Similarly, reasonable notice, as required by s 98, has been given of the intention to rely upon coincidence evidence. Coincidence evidence is required by s 98 to have significant probative value. Section 101(2) also applies.
Prosecution submissions
9․The transactions the subject of the charges fall into three different categories. The first category involves payments made using a bankcard which drew from the employer’s account. The second category involves the transfer of funds using an Internet banking application. The third category involves three telegraphic transfers.
10․The prosecution case is based upon a combination of evidence in the form of documents, lay and expert witness testimony, and admissions by the accused. From those pieces of evidence, the prosecution will submit that a conclusion in relation to certain counts can clearly be drawn beyond reasonable doubt. On some counts the evidence is stronger than on others. The prosecution seeks to use the evidence which supports the strong counts in order to establish a tendency which will bolster its case on those counts where the evidence is weaker.
11․So far as tendency (a) is concerned, the prosecution has aggregated the different methods alleged to have been used by the accused in order to establish a tendency to take money from her employer’s bank account and knowingly use it for unauthorised purposes, either for her own purposes or other unauthorised purposes. The emphasis is upon the use of her employer’s funds for her own or other unauthorised purposes.
12․So far as tendency (b) is concerned, that relates to the Internet banking transfers and the telegraphic transfers, but not to the credit card transactions because narrative entries were only made in the accounting system in relation to the former. Therefore, it could not relate to all of the 328 transactions.
13․The prosecution submissions described the evidence to be led in relation to six bank‑to‑bank transactions and nine bank card transactions to illustrate the strength of the prosecution case on some of the counts. The circumstances of each, as summarised in the submissions, provides a strong foundation for the prosecution allegation that the accused dishonestly obtained property. The prosecution submits that this also establishes the tendencies outlined in its amended application in proceeding.
14․The prosecution points to the fact that:
(a)there were 328 separate transactions over a period of approximately 357 days;
(b)the gaps between the transactions were typically in the order of days rather than weeks;
(c)the conduct of the accused is strikingly similar in relation to each count; and
(d)the conduct occurred while the accused was the director of the childcare centre with control over its finances.
15․The prosecution submitted that establishment of the tendencies would render any exculpatory explanations offered by the accused less plausible. Further, the existence of the tendency would be a piece of circumstantial evidence bolstering a count that was not otherwise proved beyond reasonable doubt.
16․The prosecution submitted that the probative value of the coincidence evidence was in order to prove that it was the accused who caused each transaction to be made and that the accused knew her conduct was dishonest and deceptive. The latter aspect of coincidence reasoning has been addressed by the ruling made on 31 January 2024 (see [4] above). So far as the former was concerned, the prosecution submitted that the number of apparently fraudulent incidents, the similarities between those incidents, and the nature of the accused’s access to the company’s finances make it improbable that someone else was the author of a contested incident.
17․The prosecution submitted that, in circumstances where the evidence was to be admitted in any event, the prospect of unfair prejudice was, if present at all, low. It accepted that, having regard to the fact that the tendency and coincidence evidence was to be led for the purposes of establishing other charges on the indictment, it would be appropriate, if the matter was before a jury, that a direction be made that charged acts could only be used for tendency purposes if they were proved beyond reasonable doubt. A similar approach was taken in R v Stevens [2021] ACTSC 308 at [26].
Accused’s submissions
18․The accused opposed the use of evidence for establishing tendencies (a) and (b) because the tendencies involved both a tendency to act and a tendency to have a state of mind, and this, the accused submitted, created such a general tendency that it lacked significant probative value.
19․The submissions on behalf of the accused characterised tendency (a) as involving four different acts and submitted that this diffuses its probative value. Counsel for the accused submitted that a distinction should be drawn between a tendency to use a credit card for personal purposes and a tendency to make bank transfers. He submitted that it was not possible to use a tendency to do one of those things to prove the other. In relation to the false accounting tendency, (b), he submitted that this tendency would be of significant probative value in relation to charges where the accused was charged with making such entries, but could not be of probative value where there was no such allegation, such as in relation to the credit card transactions.
20․Counsel submitted that the level of commonality between the incidents was less than that submitted by the prosecution. He submitted that the only unifying features were that the accused was the manager of the centre for the nine-month period during which the transactions took place, that she had the capacity to use the card or perform bank transfers, that she was not the sole person with the capacity to access the card or banking facility, and that the money that was accessed was the property of her employer.
21․He submitted that there were four different types of transactions and only some were associated with inaccurate MYOB records.
22․In relation to tendency (b), counsel submitted that the court should rule that the Crown cannot rely upon the credit card counts to prove this tendency. That was because the only evidence that is capable of proving the tendency are the Internet or telegraphic transfer counts, as those were the only ones that involved MYOB records.
23․In relation to coincidence (a), the accused submitted that, while it was possible to establish significant probative value for the coincidence case in relation to bank transfers, it was not possible to extend that to the credit card transactions because that required the establishment of a substantial similarity in circumstances where there were no other unifying features. Counsel submitted that doing so would involve a logical fallacy of the type described by Simpson J in R v Gale [2012] NSWCCA 174; 217 A Crim R 487, being that the prosecution could not identify, as one of the similarities, that the accused had performed the credit card transactions, when that was one of the issues in dispute.
Decision
Tendency (a)
24․When understood in the manner explained by the prosecution, tendency (a) describes the taking of money by the accused from her employer’s bank account in circumstances where that was not for work purposes and not otherwise authorised. That describes a tendency which is quite specific because it relates to a particular employment relationship with a particular employer and a particular type of financial dishonesty. I do not consider that the fact that two different types of transaction (credit card and bank transfer) are identified in the asserted tendency means that the probative value of the evidence is not significant. The other specific features of the offending mean that evidence of such conduct, if proved by one or more of the charges, is capable of establishing a tendency which would be of significant probative value in relation to the other charged conduct. Thus, a general tendency to dishonestly take money from her employer by one of those methods would have significant probative value in deciding whether she had committed another offence by either bank transfer or credit card.
25․To summarise the position in relation to probative value by reference to the two-step process referred to in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [56]:
(a)the conduct involved in a proved offence, whether involving credit card or bank transfer, may be used to establish the asserted tendency; and
(b)once the tendency is established, that would provide significant support for the proposition that another offence was committed, whether or not that involved a credit card or bank transfer.
26․It is not a case in which the relative generality of the tendency sought to be proved substantially detracts from its probative value because it retains the specific features of offending against a particular employer by the unauthorised taking of money which is made possible by access to banking facilities.
27․On 24 January 2024, the accused filed an election for trial by judge alone. No submissions were directed by the accused to the potential for unfair prejudice. I do not consider that there is a danger of unfair prejudice arising from allowing the tendency evidence in order to establish tendency (a). I consider that the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
28․As a consequence, the tendency incidents are admissible to prove tendency (a).
Tendency (b)
29․Tendency (b) is different. It relates to records made in accounting software relating to the business banking online transfers and the telegraphic transfers. That has the consequence that the probative value of the evidence is limited. So far as establishing the tendency is concerned, only those incidents that involve recording entries in the accounting software could be relevant. If the tendency is established, it could only be of significant probative value in relation to those counts which involve the recording of descriptions of transfers in the accounting records. However, in relation to those charged incidents which do involve such recording, I consider that the evidence would be of significant probative value because it would tend to establish the tendency and the tendency would tend to establish that the accused was the person who made the relevant entries and did so knowing that they were not legitimate. I therefore consider that the evidence of those transactions which involved accounting software entries has a significant probative value.
30․No submission was made that there was a danger of unfair prejudice in the circumstances. I am satisfied that the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
31․The admissibility for tendency purposes must be limited to those counts that involve accounting entries which the prosecution contends were not legitimate work-related expenses. As a matter of generality, that excludes the transactions that involve the use of the credit card where there was no such accounting entry. It will be possible to make a ruling in general terms subject to giving the parties an opportunity to submit that a more specific order should be made.
Coincidence (a)
32․So far as the outstanding application in relation to coincidence evidence is concerned, that is designed to permit submissions to be made that coincidence reasoning should be deployed to permit identification of the accused as the person who used the bank cards or transferred money. I say “permit submissions” because all of the evidence will be led in any event. The issue is therefore only as to what submissions may ultimately be made to the trial judge. That was also the situation addressed in R v Hall [2019] ACTSC 350 at [9]‑[10] and R v Cook [2021] ACTSC 270 at [6]‑[7].
33․The chain of reasoning must be that there was sufficient similarity between a proved incident or incidents involving the accused and an incident in question that, having regard to the similarities between the incidents and the circumstances in which they occurred, it is improbable that the events occurred coincidentally. It is therefore sought to reason that the person who undertook the proved incident is the same person who undertook the incident in question.
34․Care must be taken not to include as similarities matters which are sought to be proved by coincidence reasoning. That is the logical fallacy point made in Gale. In the circumstances of this case, that means that the identity of the accused as the person who undertook the transactions cannot be regarded as one of the similarities because that is what is sought to be established by the coincidence reasoning. The similarities are:
(a)fraudulent conduct by someone;
(b)conduct directed to the bank accounts of a single entity; and
(c)conduct reliant upon access to the banking facilities of that single entity.
35․Those similarities exist in the context of the other evidence in the case, which includes evidence about the decline in board membership of the business, the system for the management of the financial affairs of the business, and the conduct of the accused in relation to the annual auditor of the business. The coincidence reasoning would mean that if one or more of the charges were established, the similarities with the circumstances of another charge are such that it is improbable that the events occurred coincidentally rather than because the accused was the offender on that other charge.
36․I consider that the similarities between the incidents relied upon are such that, when considered in the context of the other evidence that will be led in the case, the coincidence evidence will have substantial probative value.
37․In this case it may be that the other circumstantial evidence is of more relative significance than in a case where the similarities are more numerous or more specific. However, in assessing the probative value of the coincidence evidence, regard must be had to the other types of circumstantial evidence that are available in the case: s 98(1)(b) (“having regard to other evidence presented or to be presented by the party seeking to present the evidence”). It is the overall combination of the evidence to be presented that must be considered when determining whether or not the coincidence evidence has significant probative value.
38․The principal issue that appears to have been raised by the accused is whether the evidence has substantial probative value in relation to the identity of the accused when two different methods of obtaining money are identified. As indicated above, I have assessed the similarities between the incidents at a level of generality that accommodates both methods of obtaining money from the business. Even with that approach, I consider that the evidence has substantial probative value. The weight to ultimately be given to it is a matter for the finder of fact.
39․Having regard to the fact that the trial will be by judge alone and that all of the evidence will be admitted in any event, I do not consider that there is a danger of unfair prejudice. Therefore, I am satisfied that the probative value of the evidence outweighs the danger of unfair prejudice.
40․The formulation of the ruling in relation to coincidence evidence needs to be slightly amended from that which appears in the amended application in proceeding so as to correspond more closely with the terms of s 98 of the Evidence Act.
Orders
41․The orders of the Court are as follows:
1.The prosecution is permitted to adduce evidence of incidents 1 to 328 in the Notice of Intention to Adduce Tendency Evidence dated 6 December 2023 to prove that the accused had the following states of mind and acted in particular ways, namely, to use bank cards associated with bank accounts of her employer, Projects on Parkinson Ltd, to purchase goods, services or withdraw cash, for herself or others, which were not for work purposes, or to transfer amounts from her employer’s bank accounts into her own bank account or the bank accounts of third parties which were not for work purposes, knowing that they were not for work purposes or authorised by her employer.
2.The prosecution is permitted to adduce evidence of such of those incidents 1 to 328 in the Notice of Intention to Adduce Tendency Evidence dated 6 December 2023 as involve entries in the accounting software of her employer, Projects on Parkinson Ltd, to prove that the accused had the following states of mind and acted in particular ways, namely, to record entries in bank transfer information on her employer’s accounting software which represented that the business banking online transfers or the telegraphic transfers were for legitimate work-related expenses, knowing that they were not legitimate.
3.The prosecution is permitted to adduce as coincidence evidence events 1 to 328 in the Notice of Intention to Adduce Coincidence Evidence dated 6 December 2023 to prove that the accused did a particular act, namely, that she used bank cards associated with the bank accounts of her employer, Projects on Parkinson Ltd, to purchase goods, services or withdraw cash, or caused amounts to be transferred from her employer’s bank accounts to her own bank account or the bank accounts of third parties.
4.Liberty is granted to either party to seek a refinement of the ruling in order 2 so that it makes specific reference to numbered tendency incidents within seven days. A party seeking such a refinement must file and serve a minute of the refined order that it seeks and written submissions limited to not more than two pages which include a statement as to whether or not the refinement of the order is by consent.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 10 April 2024 |
0
5
2