Hanneybel v The Queen

[2004] WASCA 54

HANNEYBEL -v- THE QUEEN [2004] WASCA 54

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 54
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:158/2003	Heard:	23 MARCH 2004
Coram:	TEMPLEMAN J WHEELER J EM HEENAN J	Delivered:	31/03/04
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	WARREN DAVID HANNEYBEL THE QUEEN
Catchwords:	Criminal law Appeal against conviction Stealing as employee Defence applications to adjourn trial refused Whether accused had full opportunity to present defence Turns on own facts
Legislation:	Nil
Case References:	HG v The Queen (1999) 197 CLR 414 R v Jones [1971] VR 72 R v McGill [1967] VR 683 Leary and Compt v R [1975] WAR 133 Myers v Myers [1969] WAR 19 R v Cox [1960] VR 665 Webb v Johnston (1986) 3 MVR 191

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HANNEYBEL -v- THE QUEEN [2004] WASCA 54 CORAM : TEMPLEMAN J

WHEELER J
EM HEENAN J

HEARD : 23 MARCH 2004 DELIVERED : 31 MARCH 2004 FILE NO/S : CCA 158 of 2003 BETWEEN : WARREN DAVID HANNEYBEL

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : H H JACKSON DCJ

File Number : IND 467 of 2001

Catchwords:

Criminal law - Appeal against conviction - Stealing as employee - Defence applications to adjourn trial refused - Whether accused had full opportunity to present defence - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr G W Massey
Respondent : Mr K P Bates & Mr L M Fox

Solicitors:

Appellant : Holborn Lenhoff Massey
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

HG v The Queen (1999) 197 CLR 414
R v Jones [1971] VR 72
R v McGill [1967] VR 683

Case(s) also cited:

Leary and Compt v R [1975] WAR 133
Myers v Myers [1969] WAR 19
R v Cox [1960] VR 665
Webb v Johnston (1986) 3 MVR 191


(Page 3)

1 TEMPLEMAN J: The appellant, Warren David Hanneybel, was convicted after trial in the District Court in September 2003 on 80 counts of stealing money as a servant, one count of stealing property as a servant and seven counts of making false entries in a record with intent to defraud. He was sentenced to a total of 5 years' imprisonment. A compensation order in an amount of $253,762.84 was made against the appellant in favour of his former employer, Uniflex (Australia) Pty Ltd ("Uniflex").

2 The appellant appealed against his convictions on the ground that the learned trial Judge erred in failing to grant him an adjournment of the trial, in the circumstances to which I shall refer in due course. The appellant appealed also against the compensation order, on the ground that if the appeal against conviction succeeded, there would be no basis for the continuation of that order.

3 The appeal was heard on 23 March 2004 and was dismissed on that day. Reasons were to be given later. I now set out my reasons for dismissing the appeal.

4 The appellant had been employed by Uniflex as its State Manager in Western Australia. In relation to the 80 counts of stealing money as a servant, the prosecution case was that the appellant had made arrangements with three of Uniflex's customers to pay their accounts by cheques made payable to cash. It was alleged against the appellant that he stole the proceeds of those cheques, either by depositing them into one or more of his own bank accounts or by cashing the cheques and keeping the money.

5 The charge of stealing property as a servant related to the alleged theft by the appellant of 1,367 "sisal-Y" air conditioning fittings belonging to Uniflex, and the sale of those fittings to a rival company. It was alleged against the appellant that he arranged for the purchaser to pay by cheque in favour of "Kiara Metals". That was a business name which had been registered by the appellant and another employee of Uniflex. It was alleged that the appellant later converted the money paid to Kiara Metals to his own use.

6 The seven counts of making false entries in a record were alleged to involve the falsification of bank deposit slips. The appeal has no relevance to those charges.

(Page 4)

The history of the prosecution

7 The appellant was charged in March 2000. However, the offences were alleged to have been committed between 1994 and 1998.

8 In an affidavit sworn on 20 March 2003 (AB 33), the appellant said Uniflex had made allegations against him in April 1998. He said the allegations were that he had stolen cheques, allegedly the property of Uniflex, and that the cheques had been given to the appellant by customers of Uniflex to pay for goods which it had allegedly supplied (AB 34). The appellant said that after the allegations had been made against him, the police took no action after an initial enquiry. He said Uniflex then initiated a civil action against him (in the Supreme Court) in an attempt to recover the amount of the cheques given in payment for goods supplied. The appellant continued:

"The allegations were that I had stolen the goods from the complainant and sold those goods to the complainant's customers therefore entitling the complainant to ownership of the cheques. During the course of this action the complainant had been ordered by the Court to provide details of the allegedly stolen goods. The complainant was unable to provide details of any stock shortages, theft or discrepancies. The complainant then altered their pleadings to avoid any mention or association with the goods allegedly stolen." (AB 35)

9 A little later in his affidavit, the appellant said he or his solicitor had asked whether the police had ever investigated or been provided with details of goods allegedly stolen from Uniflex. He said he was told by the investigating officer that "we will be supplying details of stocktakes and discrepancies" or words to that effect. The appellant continued by saying that if the investigating officer's statement was correct:

"then as of April 2000 the complainant had still not furnished details of the allegedly stolen goods. This was some two years after the initial allegations against me were made, a month after I had been charged with theft and around twenty-one months after the commencement of civil proceedings against me to recover the moneys used as payment for the goods allegedly stolen from the complainant."

10 The appellant then said:

(Page 5)

"The complainant had (sic) given sworn evidence in the 2001 Supreme Court proceedings that several reconciliations had been undertaken and had shown no discrepancies and that the complainant had an independent auditor to carry out a stocktake and no significant discrepancies were found." (AB 36)

11 I digress to say that, as is now clear, this contention is substantially incorrect. Evidence was given in the Supreme Court proceedings by Mrs Elizabeth Sterling, the Managing Director of Uniflex. Far from saying that reconciliations had been undertaken and had shown no discrepancies, Mrs Sterling (trial TS 129) said that a stocktake of certain items was carried out by the accountants Deloitte Touche Tohmatsu in February 1998 and that "quite significant" discrepancies had been found before that work was carried out.

12 Later in the cross-examination of Mrs Sterling, she accepted that she (or Uniflex) were alleging that the appellant had taken the benefit of $320,000 worth of stock. Mrs Sterling was then shown a document (AB 61) which is a letter dated 27 February 1998 from Deloittes to Mr Ivan Dumic, Uniflex's accountant. This was the stocktake of "certain items" in Perth to which Mrs Sterling had referred earlier in her evidence. The letter referred to "our results of the stock count for the specific items that you requested." (my emphasis)

13 The letter was simply a stock count. It said nothing about the value of the stock: nor did it address any question of discrepancy. Despite that, Mrs Sterling was asked in cross-examination:

"Did this show a discrepancy of $320,000 that you recall?"

Mrs Sterling's answer was:

"No. That's ridiculous." (Trial TS 136)

14 Clearly, the suggestion was ridiculous. However, that evidence provides no basis for the statement in the appellant's affidavit, set out above.

15 The appellant swore his affidavit of 20 March 2003 in support of an application to "request that the Court instruct the Director of Public Prosecutions under the provisions of sections 611A and 614 of the Criminal Code to provide to the Court details of the allegedly stolen goods". The appellant contended that:

(Page 6)

"If the DPP cannot provide and verify that this information exists it would be difficult for any presiding Judge to instruct a jury to find a guilty verdict of stealing or fraud when clearly by the complainant's own admission nothing has been stolen. It would be unlikely for any jury to convict any person based on the complainant's admissions or the evidence available. The opportunity exists to relieve the Court, State and taxpayer of an extreme burden by what would be a simple task." (AB 40)

16 It is necessary to put the appellant's affidavit in context. As I have noted, the appellant was charged in March 2000. Following a number of adjournments, the matter was listed for a preliminary hearing to commence on 6 February 2001. Shortly before that date, the appellant's solicitors informed the DPP that the matter could proceed to trial without a preliminary hearing. The appellant was therefore committed to the District Court by way of a hand-up brief from the Court of Petty Sessions.

17 It seems the matter made little progress during 2001, there being adjournments to successive status conferences. The last of those was on 18 April 2002, when the matter was adjourned to a directions hearing on 24 July to hear an argument concerning particulars of the indictment.

18 On 24 July, a limited order for particulars was made and the matter was adjourned again, to a status conference on 26 August. On that date, the matter was listed for trial commencing 3 February 2003.

19 On 15 January 2003, the appellant applied to vacate the trial dates. The application was refused. However, on 22 January, the trial dates were vacated, apparently because the appellant had been unable to obtain legal aid.

20 On 24 March, the matter came before the Chief Judge of the District Court, apparently for the purpose of setting the trial date. The Chief Judge had before him the appellant's affidavit of 20 March to which I have already referred.

21 The Chief Judge was not persuaded that the matter should be delayed. However, he asked the prosecutor whether the matters raised by the appellant had been investigated properly "not simply as a knee jerk reaction but as a studied analysis of what he is saying" (AB 54). His Honour pointed out that there was little the Court could do if the DPP wished to proceed with the prosecution. He then said to the appellant:

(Page 7)

"The best I can do for you … is to ensure that you have legal aid. You do apparently have legal aid and therefore in the light of what the Crown says today, I would say that you should really buckle down and prepare your defence." (AB 56)

The trial was listed to commence on 1 September 2003.

22 The matter came before the Chief Judge again on 14 July 2003, when the appellant sought to have the trial date vacated because of the unavailability of his counsel for two days during the course of the trial. That application did not proceed because the Chief Judge gave a direction which would have permitted counsel to attend to his other commitment on the days in question. However, during the course of the hearing the Chief Judge was reminded by counsel for the appellant about his Honour's direction to the prosecution to consider the matters raised in the appellant's affidavit of 20 March. The prosecutor said he had done so: he had read the transcript (of the civil proceedings) and the appellant's affidavit "and it doesn't change the Crown's position" (AB 59). That is not surprising, having regard to Mrs Sterling's evidence set out above.

The Stocktake Letter

23 On 18 August 2003, the prosecutor wrote to the appellant's solicitor enclosing a copy of a stocktake document provided by Mr Dumic. The prosecutor said Mr Dumic had provided him with the document as a result of the appellant's affidavit of 20 March 2003 in which it was alleged that Uniflex had suffered no loss as a consequence of the alleged offending. The prosecutor continued:

"Although it is the Crown's case that your client stole money rather than stock, in relation to the vast majority of counts he faces, the fact that Uniflex had a stock shortfall is obviously a potentially relevant matter." (AB 63)

24 The stocktake document is in tabular form and extends over 12 pages. It appears to relate to 17 items of stock from the years 1995-6 to 1997-8. It shows a total variance in an amount of $253,034: in other words a stock discrepancy of that magnitude.

A further application to adjourn

25 On 25 August 2003, the appellant applied to the trial Judge to have the trial adjourned. The application was supported by an affidavit sworn by the appellant on 20 August 2003.

(Page 8)

26 In his affidavit, the appellant said he had maintained consistently that the proceedings were "fundamentally fraudulent in that the complainant was unable to point to any stock discrepancies which would match up with the amounts allegedly stolen." (AB 77)

27 The appellant then referred to the stocktake document received by his solicitor on 19 August. The appellant said he did not accept the figures contained in the document. He said he had instructed his solicitors to make application to subpoena all of the records of Uniflex relating to the preparation of the stocktake including:

"(a) All end of year summaries of stock and sales for each of the financial years for 1995 to 1998 inclusive.

(b) Load sheets of freight and dispatches of Stock from Uniflex in Victoria to Perth.

(c) The corresponding receipt documents.

(d) All exception reports for stock for the financial years 1995 to 1998 inclusive.

(e) Stocktake figures and stocktake sheets submitted by the Perth branch of Uniflex for those years.

(f) Stocktake figures as at March 1998 when I was dismissed.

(g) All other documents used by Mr Dumic in calculating the document sent to us on 19 August 2003."

28 The appellant continued:

"There is no deposition from Mr Dumic attesting to the way in which the so called stocktake was performed, the materials to which he had reference and when it was prepared. That information is required for the preparation of my defence."

29 A considerable amount of argument was presented to the trial Judge on 25 August. His Honour was not persuaded, however, that he should adjourn the trial. Nevertheless, he gave the appellant a further opportunity to present a more convincing argument by way of further submissions, either in writing or orally.
(Page 9)

The final application for an adjournment of the trial

30 On 1 September 2003, the day on which the trial was due to commence, the appellant renewed his application for an adjournment. By that stage, the trial Judge had the benefit of written submissions prepared by the appellant's counsel. The Judge had also read the transcript of part of the civil proceedings to which I have referred above. His Honour said:

"I have read the papers. I understand, I think, that there is an argument that if there had been a stealing from the company, whether by your client of (sic or) someone else, one possibility would be that there was a stock discrepancy, as I would understand what a stock discrepancy is. It doesn't seem to me that that necessarily follows but I can understand that you might want to argue it as a possibility in a criminal proceeding."

31 His Honour went on to say that having read the transcript of the civil proceedings, he was unable to understand the submissions made to the effect that Mrs Sterling's evidence was that there had been no stock discrepancy. (It was pointed out to this Court in the course of argument that the trial Judge was apparently mistaken in one of the documents to which he referred. However, for reasons given above, there is no doubt that his Honour's view was justified.)

32 Ultimately, the trial Judge declined to adjourn the trial. His Honour did not give formal reasons for that decision but his reasons are clear from the observations he made during the course of argument. They may be summarised as follows:

• The applicant had had some time to investigate the stocktake document provided to his solicitors on 18 August 2003.

• The prosecution did not intend to rely on the document even though it would help to incriminate the appellant.

• The documents which the appellant sought in order to check the accuracy of the stocktake document did not exist and had never been created (AB 145). Indeed, on being informed by the prosecutor of this last matter, the appellant's counsel said that if the documents could not be produced then no further time would be required and he would be able to proceed with the trial.

(Page 10)

Should the trial Judge have granted an adjournment?

33 It is well settled that when considering whether to adjourn a trial:

"The fundamental question is whether … the denial of the adjournment meant that the accused was not given a full opportunity to present his defence, a 'basic standard required for a proper administration of justice' …"

HG v The Queen (1999) 197 CLR 414 at 450 per Gummow J, citing with approval R v Jones [1971] VR 72 at 76, citing R v McGill [1967] VR 683 at 686.

34 In the present case, the appellant faced 80 charges of stealing money. It was not alleged that he had stolen the stock for which the money was paid. The question whether there were any deficiencies in Uniflex's stock was therefore irrelevant to the prosecution case.

35 The appellant's defence was that Uniflex had been short of stock and that he had bought in stock from other sources which he had then sold to Uniflex's customers. Thus, the appellant contended, payments which he was alleged to have stolen never were the property of Uniflex.

36 I accept that if the appellant had been able to show there were no stock deficiencies, he might have been able to cast doubt on the prosecution case. However, if the appellant wished to run his defence in that way, he had had every opportunity to pursue his enquiry about stock reconciliations. The issue had been raised in the civil proceedings in 2001. The appellant had been given discovery in those proceedings: and it would have been open to him to obtain any further documents relating to stock reconciliations, either through the discovery process or by subpoena.

37 Despite being told by the Chief Judge on 24 March 2003 that he should "really buckle down and prepare your defence", the appellant did not do so. Rather, he relied on what was said to have been admissions made by Mrs Sterling in the Supreme Court proceedings. But as I have said, Mrs Sterling's evidence did not bear the construction for which the appellant contended.

38 The stocktake document provided to the appellant on 18 August 2003 appeared to demonstrate that insofar as the appellant's defence was based on the absence on any deficiency in the stock, that defence was specious. Had the prosecution sought to rely on the document, it would

(Page 11)

have been necessary to give the appellant a proper opportunity to investigate it. But because the prosecution did not intend to rely on the document, it would have been inappropriate to adjourn the trial, which was already long overdue, in order to provide the appellant with further opportunity to prepare a defence when that opportunity had been open to him for so long.

39 I am not persuaded, therefore, that the trial Judge erred in exercising his discretion not to adjourn the trial: this decision did not result in any injustice to the appellant. For these reasons, I consider that the appeal should be dismissed.

40 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J, which express my own reasons for dismissing this appeal. I have nothing to add.

41 EM HEENAN J: I have had the advantage of reading in draft the reasons for decision to be delivered by Templeman J. I agree with those reasons and have nothing further to add.