Lowth v Nicholls

[1993] QCA 453

IN THE COURT OF APPEAL	[1993] QCA 453
SUPREME COURT OF QUEENSLAND

C.A. No. 103 of 1993

Brisbane

[Lowth v. Nicholls]

TIMOTHY KITCHENER JAMES LOWTH

v.

TINA JOY NICHOLLS

Appellant

The Chief Justice Mr Justice Davies

Mr Justice Lee

J udgment delivered 9th November, 1993

Separate reasons for judgment by the Chief Justice, Davies JA and Lee J. Davies JA and Lee J agreeing in the order. The Chief Justice dissenting.

Appeal allowed. Set aside the convictions. Order a new trial.

CATCHWORDS: CRIMINAL LAW - EVIDENCE - CIRCUMSTANTIAL EVIDENCE - STEALING - PROVEN OPPORTUNITY - WHETHER FALSE DENIAL OF POSSESSION OF MONEY - WHETHER RECENT UNEXPLAINED POSSESSION.

Counsel:	Mr T. Carmody for the Appellant Mr W. Clark for the Respondent
Solicitors:	Legal Aid Office for the Appellant Director of Prosecutions for the Respondent

IN THE COURT OF APPEAL

S UPREME COURT OF QUEENSLAND

C.A. No. 103 of 1993

B	risbane
[	Lowth v. Nicholls]

TIMOTHY KITCHENER JAMES LOWTH

v.

TINA JOY NICHOLLS

(Appellant)

─────────────────────────────────────────── ───────────────────

The Chief Justice Mr Justice Davies Mr Justice Lee

─	─────────────────────────────────────────────────────────────
J	udgment delivered 9/11/93
J	UDGMENT ...
─	─────────────────────────────────────────────────────────────
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C	ATCHWORDS:

C el	ouns :	Mr T. Carmody for the appellant Mr W. Clark for the respondent
S it :	olic ors	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing date:  19 August, 1993

IN THE COURT OF APPEAL

Q UEENSLAND

C.A. No. 103 of 1993

B	risbane
Before	The Chief Justice Mr Justice Davies Mr Justice Lee
[	Lowth v. Nicholls]

TIMOTHY KITCHENER JAMES LOWTH

v.

TINA JOY NICHOLLS

(Appellant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

J udgment delivered 9/11/93

Mr Justice Davies and Mr Justice Lee in their reasons have set out the facts and the issues argued on this appeal and I need not repeat them. I find that I arrive at a different conclusion and this is because of the view which I take of the essential course of the magistrate's reasoning as expressed in his extempore judgment.

The strength of the circumstantial case against the appellant appears from the reasons prepared by Davies J.A. and Lee J. This circumstantial case was unopposed by any sworn evidence from the appellant although certain statements made by her found their way into evidence through a record of interview tendered during the prosecution case. The two complainants did both give evidence providing their respective descriptions of the events of the day of the party and the magistrate has largely acted on those versions. However, accepting the evidence that a theft of the amounts spoken of by the complainants or amounts of that order had occurred and also the evidence of the appellant's opportunity to have stolen the money it could be thought that without the evidence of Mann there would not have been enough to constitute proof beyond reasonable doubt. The magistrate did not fail to recognise this saying, "the evidence of Mann is the crucial link in the chain".

Mann's evidence, in my view, was, indeed, critical in the identification of the appellant as the perpetrator of the theft and, having in mind the evidence of the degree of intoxication of the appellant, is important also in proving her intention at the time of the taking. The evidence of Mann could be viewed as indicating a sufficient grasp by the appellant of the situation to constitute proof of the necessary mental element and this is especially so because she made two significant phone calls to Mann displaying her insight shortly after she left his house. The submission has, however, been made that the magistrate misunderstood or attributed too great an effect to one aspect of Mann's evidence tending to identify the appellant as the perpetrator.

Even allowing for the extent to which the appellant was affected by alcohol, the degree of pre-occupation which she displayed with the sum of money in her possession at Mann's residence, the shifting explanations which she advanced concerning that money and her possession of it and the absence of any credible explanation of how she could have become dispossessed of it in the fairly short interval between leaving Mann's residence and making her second phone call to him, taken with the other evidence in the case provide, in my view, the critical link between the appellant and the theft.

I consider that the magistrate in reaching his conclusion was essentially giving broad effect to Mann's description of the events involving the appellant at his house and of her behaviour and statements in the course of making the two phone calls and was doing so without restricting himself to acting on some comparatively narrow basis such as his belief that the appellant persisted in asserting that no display or shuffling of money occurred in front of Mann and continued to assert that she did not at that time possess the sum of money which was referred to in the evidence. The significance of Mann's evidence was that she did in fact possess the sum at Mann's residence and only a short time later claimed not to have it although she provided no credible explanation of how she might in that interval have lost it. This central feature was there for the magistrate to rely on and overall and in context I do not consider that he misled himself about the conclusion which should be drawn from this aspect even if in some collateral and inessential aspects certain of his statements went too far and may arguably have displayed a degree of misapprehension. Evidence of Mann referring to what had been said during the second phone call was:-

"I then asked Tina (the appellant) about the money she was shuffling back at my flat that afternoon. I told her what denominations and everything that she had and how much money that she had in front of me. She then questioned that and, during the conversation, she told me that she only had approximately $40 or so. ... she told me that she'd gone through her purse while we were on the phone and she did not have the money that I was asking her about".

In terms of the effect on the appellant's credibility and in proof of her guilt the difference between on the one hand questioning whether there had been a shuffling of money when there had been and on the other asserting that there had not been a shuffling or display of money is not significant. The real point was that Mann's evidence was sufficient to prove that the sum of money was in the appellant's possession at Mann's residence when she said that very soon afterwards it was not in her possession but yet provided no persuasive explanation of how it could have been lost. The magistrate in essence was accepting Mann's evidence of what had occurred and from it he was deriving significant circumstantial evidence of guilt. Without any inaccuracies in the magistrate's description of the evidence the conclusion of any reasonable magistrate would have been the same. No substantial miscarriage of justice has occurred as a result of any misstatement by the magistrate of the effect of a small part of the evidence: Wilde v. The Queen (1988) 164 C.L.R. 365 at 372. I would dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 103 of 1993

Brisbane

Before The Chief Justice Mr Justice Davies Mr Justice Lee

[Lowth v. Nicholls]

TIMOTHY KITCHENER JAMES LOWTH
v.

TINA JOY NICHOLLS (Appellant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 09/11/1993

Mr Justice Lee, in his reasons for judgment which I have had the advantage of reading in draft, has set out at length the evidence before the magistrate, the grounds of appeal and the arguments adduced on appeal. It is therefore unnecessary for me to repeat any of those.

Leaving aside for the moment the question whether, as the magistrate below concluded, the appellant made a false denial to Mr Mann as to the amount of money in her possession when she was at his flat, there was a strong circumstantial case against her.

When the complainant, Erica Hoerner, left her house at about 5 p.m. on the afternoon of the robbery, only the appellant and the other complainant, Angela Rosenthal, were in the house. When she returned about half an hour later the appellant had gone and shortly afterwards both complainants found that their money had been stolen. The money stolen from the second complainant was stolen from a bag left in the bedroom which, until shortly before she left, had been occupied by the appellant. And the purse removed from the first complainant's bag in the kitchen was later found, emptied of money, under the mattress of the bed upon which the appellant had been lying in that bedroom. The first complainant had remained in the kitchen for most of the day, where a party had been taking place, until she left at about 5 p.m. Whilst she was gone, the second complainant heard the appellant in the kitchen. Because, until shortly before then, the first complainant and others had been in the kitchen and, for a considerable part of the afternoon, the appellant had occupied the bedroom, it is unlikely that any person other than the appellant had the opportunity to steal from both bags. Moreover the events at Mann's flat, at least without some explanation which was not forthcoming, seem inconsistent with the appellant's statement to the police, referred to by the magistrate, that she had $200 stolen from her and her statement to Mann on the telephone a short time after she had left his flat that she had no more than $40 in her possession.

On this evidence the magistrate could have convicted the appellant. He did not, however, rely solely on this evidence. He concluded that the appellant had falsely denied, in the telephone conversation to which I have just referred, counting money in her purse at Mann's flat and, whilst there, being in possession of the amount which Mann said he saw her shuffle.

The evidence of Mann, and that is the only evidence on this question, is, in my view, at least equivocal on this question. He said:

"I then asked Tina about the money that she was shuffling back at my flat that afternoon. I told her what denominations and everything that she had and how much money that she had in front of me. She then questioned that and, during the conversation, she told me that she only had approximately $40.00 or so. I can't - I'm not sure if that is the correct amount, but she said that she only had approximately $40.00. During the conversation, she checked her purse to see if she had that money that she was shuffling in front of me.

This while she's on the phone talking to you? -- Yes, yes. She told me that she'd gone through her purse while we were on the phone and she did not have that money that I was asking her about."

In my view the magistrate could not have been satisfied, beyond reasonable doubt, on that evidence, that the appellant was denying counting the money in Mann's flat or that she had $130.00 in her possession when she was in Mann's flat. I think it is equally consistent with the view that she merely questioned, without necessarily having a contrary recollection, the incident in Mann's flat but was prepared to say positively that, at the time of the telephone call, she had no more than $40.00 in her possession. His evidence on this question in cross examination is also, at best for the prosecution, equivocal.

As the magistrate plainly relied on what he wrongly thought were false denials in reaching his conclusion that the appellant was guilty, the convictions must be set aside unless this Court nevertheless considers that no substantial miscarriage of justice has occurred. I cannot be so satisfied in the present case and I would therefore set aside the convictions. However, because, as I have said, there remains a strong circumstantial case against the appellant, including the evidence of Mann, I would order a new trial.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 103 of 1993

Brisbane

Before The Chief Justice

Mr Justice Davies

Mr Justice Lee

[Lowth v. Nicholls]

TIMOTHY KITCHENER JAMES LOWTH

v.

TINA JOY NICHOLLS

Appellant

REASONS FOR JUDGMENT - W.C. LEE J.

Judgment delivered 9th November, 1993
This is an appeal against conviction on 26th February 1993
following a trial before a Stipendiary Magistrate at Longreach
on two charges of stealing money on Saturday, 7th November 1992.
The appellant was fined $150 for each offence and ordered to
make restitution in the sums of $50 and $75 in default six days
and seven days imprisonment respectively. She was represented
at the trial by a solicitor. She did not give or call evidence.
The three grounds relied upon are that the Magistrate erred
in finding that the appellant was able to form the necessary
intent to commit each offence due to her heavy intoxication at
the time; that the Magistrate erred in finding that the removal
and concealment of the purse of Erica Leanne Hoerner together
with the evidence of Kevin Mann (Kenneth Mann) that she handled
a quantity of cash from her own purse in his presence was
evidence of itself capable of supporting an inference of guilt
beyond reasonable doubt; and that in finding that she made a
false denial as to possession of money and her handling of it in
Mann's presence, the Magistrate failed to consider the whole of
the evidence of intoxication and its effect on her recollection
of events.
The Magistrate drew the inference of guilt against the appellant on both counts on the basis of circumstantial evidence
of:

a)    proven opportunity;

b)    false denial of possession of the $130 seen by Mann;

c)    a recent unexplained possession of the $130. The facts are confused in many respects due primarily to

several conflicts in the evidence between the two separate complainants, as well as in certain other respects. There had been a considerable quantity of alcohol consumed throughout the day by all present which doubtless rendered recollections of events unreliable. One complainant was Erica Leanne Hoerner ("Erica"). The other complainant was Angela Diane Rosenthal ("Angela").
Erica was having birthday drinks at her home throughout Saturday, 7th November 1992. She rang and invited a few girlfriends including the appellant, Angela and two other girls, Narelle and Sharon. Later that day about 4.00 p.m., Erica's sister visited the house and shortly thereafter one Glenn Morris called.

The appellant had arrived "a bit after 11.00 a.m." She went to the Lyceum Hotel with Erica to buy alcohol before the other guests arrived. Angela arrived at the party after lunch and Narelle and Sharon called during the afternoon for a short time, although the evidence disclosed that they returned again later when Erica was temporarily absent with Glenn Morris with whom she went for a drive for about half an hour from about 5.00 p.m., although this time is by no means clear. The appellant and Angela became quite drunk. Erica described them both as "absolutely drunk" and said both of them had drunk to excess.

Erica said that on her return with the appellant from the Lyceum Hotel (the time is unspecified), she put her handbag containing her purse on a cupboard in the kitchen. It was on a bench top and quite noticeable. It appears that her money purse was inside her handbag. Erica said that until she went out for the drive with Glenn at 5.00 p.m., she had remained in the kitchen all the time but in cross-examination agreed that she had left the kitchen at times to make phone calls, to go to the toilet and to put on music in the lounge room. Other people were in the kitchen during the afternoon where most of the partying took place. There were various persons present in the kitchen and in other parts of the house during this period.

Erica estimated that her money purse contained approximately $100 made up of one $50 note, one $20 note, and $10 notes. She was definite that there was a $50 note in it, as well as her driver's licence and two cards. She also said that she had about $150 in her purse when she went to the Lyceum Hotel to buy alcohol. She spent $20 on that purchase and bought nothing else apart from the alcohol. She returned straight home after that purchase. This meant that she should have had about $130 in her purse.

Erica said that the appellant had vomited in the children's bedroom. About 15 minutes or so before she (Erica) left with Glenn for the half hour drive, she saw the appellant lying down asleep on a bed in the children's bedroom. She said this was about 5.00 p.m. She said that Angela was asleep in the lounge room at the same time. When she (Erica) left with Glenn, the only two left in the house were the appellant and Angela. She left the house unlocked. It was her suggestion that the appellant should sleep it off and have a sleep in the children's bedroom.

On Erica's return about 5.30 p.m., she noticed that the appellant had gone and that Angela was still asleep in the lounge in the same place as she was when she (Erica) left with Glenn at about 5.00 p.m. In cross-examination however she said that when she left with Glenn, Angela was seated at the table presumably in the kitchen and she (Erica) could offer no explanation as to why she gave these two different versions as to where Angela was when she (Erica) left with Glenn.
At about 6.30 p.m., Erica went to her handbag and looked
into it. The purse was missing. She went to her sister's place
to see if she had left it there, then she returned to her home.
She made various phone calls, one to Kenneth Mann about
6.30 p.m. to see if the appellant was coming out to the Tavern
with them that night. She said that she suspected that the

appellant was the culprit merely because she had left the house

by the time she arrived back with Glenn.

Some three days later, Tuesday, 10th November 1992, she was cleaning out the children's bedroom when she discovered her purse under the mattress of one of the children's beds. This was the bed on which the appellant had been sleeping on the previous Saturday. The money had gone from it. There were cards in the purse but not in the right compartments. She had made a complaint to the police at 7.00 p.m. on Saturday, 7th November 1992 and gave a statement the next day.

Angela said in evidence that she arrived at the party with a supply of liquor. She had about $64 in her purse made up of two $20 notes, two $5 notes, $12 in $2 coins and two 50 cent pieces. This comes to $63. She said that about 3.00 p.m. that day they were all sitting at the table and were drinking, but that when Glenn arrived, Erica was talking on the telephone.
During the afternoon Angela went into the children's bedroom. She had left her handbag lying on the bed nearest to the door. She opened it up, checked that everything was there, closed the handbag, and went back out into the kitchen. Her wallet was in the handbag. She said that she went in to inspect her handbag because she had heard the children in the room and wished to make sure it was safe. At the time she was checking her handbag, the appellant was lying on another bed and there was also a child present. The appellant had just vomited on the floor in that room and was not asleep. Everything was in Angela's purse at that time. This occurred just after 3.00 p.m.

Angela said that at a time not specified, she unfolded the children's couch in the lounge and had a sleep because she had to go to work that evening. She said that the appellant was walking around in the kitchen. Again she did not specify the time. She (Angela) then went out onto the verandah, then back into the lounge room, and then sat out on the verandah again and laid down. There was also a bed on the verandah. By this time Erica and Glenn, according to her, had gone. She heard Erica call from the back door saying that she was going. She was quite definite that she went out to lie down and sleep on the bed on the verandah, whereas Erica said that she was asleep in the lounge room at that time.

Angela said that whilst she was on the verandah, she heard the appellant in the kitchen because chairs were banging against the table. She heard the appellant saying that she was going to be sick. Then she heard the appellant use the telephone. Shortly thereafter she observed the appellant going out of the front door. She said that "Bart" arrived. Apparently this was Kenneth Mann. She said that he did not enter the house. Mann picked up the appellant and drove her to his place.

Shortly thereafter Erica and Glenn arrived home. Angela said it would have been a bit before 6.00 p.m. After Erica came home, Erica tried to wake her up because they were going out to the tavern for tea. Angela went and had a shower, and when she had come back Erica said, "Some one's taken my money". Erica had discovered it missing about 6.30 p.m. Angela walked into the lounge room, sat on a chair, put her shoes on and went into Erica's bedroom to get dressed. She came back out, then went into the children's bedroom, picked up her handbag, went back to the lounge room, sat down, opened the bag, looked through the wallet and noticed the money missing. She said that she had $126 in her purse when she had gone to the Lyceum Hotel to buy liquor which cost her $30, but could not account for why she said there was only $64 in her purse when she had left it on the children's bed. She said that she had put the money in her purse when she got paid from the road house where she worked.

Angela was adamant that she was sleeping on the bed on the verandah because she saw the appellant walk past her on her way out. This was the front verandah to the house. Erica and Sharon tried to wake her up while she was on that bed. She also said that Narelle was there at the same time, indicating that Sharon and Narelle had also arrived at the house some time after the appellant had left. Erica, on the other hand, was equally adamant that Angela was asleep in the lounge room in the same position she was in when she (Erica) had left with Glenn Morris at about 5.00 p.m.

In cross-examination Angela said that she had checked her handbag whilst in the children's bedroom and discovered the money missing, whereas previously she said she had checked it in the lounge room and made the discovery there. She and Erica then searched the house for the missing money without success.

Kenneth Mann said in evidence that as a result of a telephone call on Saturday, 7th November 1992, he called at Erica's house to collect the appellant and take her home. She was drunk. They went to his house and watched a video. She went to the toilet and was sick. She went through her handbag where she had notes and loose coins, saying to herself how much money she had. She said, "I've heaps of money". Mann saw her take one $50 note, three $20 notes and one $10 note and two $5 notes from her handbag. This totalled $130. He said that both he and the appellant were sitting on the floor at the time. He was a bank teller by occupation and said he noted the denomination of notes as he was accustomed to doing in his job.

He said that this money was loose in her handbag, and after she had finished shuffling and counting it she put it in her purse which she put back into her handbag.

The appellant was feeling ill. He told her to lie down and she had a sleep on a bed for about half an hour or so when Rebecca Humphrys came around and picked her up and drove her home. He said this would probably have been around 5.30 p.m. Given the fact that they watched a video, that the appellant shuffled money, and had a sleep for about half an hour, this time is difficult to reconcile with the time given by Erica as to when she had left the house for a drive with Glenn, leaving the appellant at her house with Angela.
All that Mann saw in the appellant's possession was $130. He was precise on this point. The money stolen amounted to either $164 or $184, depending on the versions advanced by the complainants. Also the appellant was in Mann's company from the time she left Erica's house to go to Mann's place and had no opportunity of disposing of the difference of either $34 or $54.
One other possibility is that the appellant did not remove all of the money in her handbag but only $130 of it and that Mann may not have seen it all.

After Rebecca Humphrys picked the appellant up from Mann's place, the appellant was in the company of others for a time and assisted in the search for the missing money.

At approximately 7.15 that evening, the appellant rang Mann and said that Erica was going to come around and question him about missing money from the party. At 7.30 p.m., the appellant rang him again to see if Erica had come around. He then questioned her about the missing money. He asked her why Erica was coming around, and whether Erica suspected him of taking the money. She asked him whether he entered Erica's house when he went to pick her up from the party. He told her that he did not. He then asked the appellant about the money that she was shuffling back at his flat that afternoon. He told her what denominations that he had observed. His evidence continued:

"She then questioned that and, during the conversation, she told me that she only had approximately $40 or so. I can't - I'm not sure if that is the correct amount, but she said that she only had approximately $40. During the conversation, she checked her purse to see if she had that money that she was shuffling in front of me.

This while she's on the phone talking to you?-- Yes, yes. She told me that she'd gone through her purse while we were on the phone and she did not have that money that I was asking her about."

The appellant was subsequently interviewed some days later after the empty wallet was found under the bed where she had been lying on the day in question. She was then suspected by the police. She gave inconsistent versions to the police. She said initially that money was stolen from her at the party. Then she said that that could not be right because her male friend later saw her with $130 so she must have had it with her then. She said that she used to conceal $200 in her wallet in a zippered compartment for emergencies and that it was in four $50 notes. When informed by the police that this did not match up with the denominations that Mann had seen, she said that she was possibly wrong. She said she was so drunk that she could not rely upon her recollection of events at about 5.00 p.m. on the day of the party. She said that she must have had at least $130 when her boyfriend saw it in her wallet and that she had since lost that money between the time she left his flat and the time they had the second phone call, at which time she had only $40.

It was submitted on behalf of the appellant that whilst she had opportunity to take the money from both purses, Erica had left the house unsecured so that others had the opportunity also to take the money. This, it was submitted, was fortified by the fact that Angela was drunk and asleep after the complainant had left, thus making it easy for other persons to enter. Angela said that Sharon and Narelle were there when she woke up on the front verandah. Other persons were also present in the house at different times. It was contended that there was a rational hypothesis consistent with innocence, namely that some other person could have taken the money without the knowledge of either Angela or the appellant or Erica and that this hypothesis was not excluded by the prosecution. Added to this was the undisputed fact that both Angela and the appellant were very drunk at all material times.

The second submission was that the learned Magistrate misconstrued the evidence of Mann set out above in concluding that the appellant had made a false denial as to the counting and possessing of the $130 observed in her possession by Mann. In this regard, the Magistrate said at p. 67:

"He says that on the second occasion he did put to the defendant about the $130 that she had and at that time she denied any knowledge of it and purported to look in her purse for it and said it wasn't there then."

And at p. 68:

"It appears to me that the evidence of Mann is a crucial link in the chain, and it does seem to indicate that at a time when, according to the defendant, her purse had emptied also, she had the money which was described by Mann, and her denial about counting that would appear to be a false denial, and the denial of possessing it."

The third basis on which counsel for the appellant attacked the findings was that the Magistrate must have formed a conclusion that the appellant was recently in possession of stolen money from which he drew an adverse inference. It was submitted that mere possession of any money is not proof that the person possessing it was a thief or a receiver. It had to be the stolen money. There was no evidence that the money she had at the time Mann saw it was in fact the stolen money. The Magistrate in his findings concluded that there was nothing unusual in the defendant having some money in her possession. He concluded that she was a woman who worked although he regarded her conduct of sitting and counting it in the way she did a little out of the usual. It was submitted that in view of this finding, there was a rational hypothesis consistent with innocence namely that her possession of money was innocent and that the prosecution had not excluded this hypothesis.

On behalf of the Crown, it was submitted that there a strong circumstantial case. The appellant was in the house when both sums of money were last seen. She left the house before the theft was discovered. She was heard by Angela (even though Angela was quite drunk) to be in the kitchen where one purse had been left after the owner of the purse had left the house. Angela was on the verandah on the bed when she said she heard the appellant in the kitchen. The appellant was in the children's bedroom on the last occasion that Angela's purse was seen there. Erica's purse which was taken from the kitchen was found about three days later under the mattress where the appellant had been sleeping. It had been taken from the kitchen and deposited under that mattress.

It was submitted that this was entirely consistent with the appellant having gone to the kitchen, found the purse, taken it into the bedroom in order to take the money out and then, not wishing to be seen by taking the purse back to the kitchen, she disposed of it in the bedroom. There was no need for her to hide the other purse which remained in the place from which it was alleged that she had taken the money. It was submitted that it was unreal to suggest that an intruder would have come into the house, taken the purse from the kitchen, that is the whole purse not just the money, taken it to the bedroom, disposed of the purse under the mattress, taken the money out of the other handbag in the bedroom and then left the house all without being seen. It may also be wondered in those circumstances why he would not have disposed of the other purse in the bedroom.

Counsel for the Crown relied upon the evidence of Mann, on the appellant's statement that she had heaps of money and the way she handled it, the fact that she took it from her handbag and not from the purse initially, and then put it back into the purse, which she then replaced into the handbag. He also relied upon her second phone call to Mann that evening when questioned about the money he had seen her counting, when she said she had only $40. She claimed to search her bag whilst she was talking to him and said that that money was gone. He relied upon her entire statements in order to support the Magistrate's conclusion about the alleged false denials, but after saying that her statements were equivocal, finally conceded that none of them either separately or together supported the conclusion that she had denied counting the $130 or possession of it in the presence of Mann.

On the question of her possession of the sum of money in the presence of Mann, the Crown relied upon the fact that she had in her possession a substantial sum of money, even though not the precise sum stolen from the two complainants, which could be explained by the fact that Mann may not have seen all the money she had in her handbag. It was said that her conflicting statements to the police entitled the Magistrate to infer that this was the stolen money in respect of which no satisfactory explanation was given.

It was also submitted that it was incorrect to say that the appellant was working. In her out of court statement in the taped recorded interview she was asked by the police whether she was working and said that she was unemployed. The evidence disclosed that Erica and Angela were working at the road house but that the appellant had at some time been working at the road house with one or other of them. It was submitted that in these circumstances, the Magistrate was not entitled to say as he did that there was "of course nothing unusual in the defendant have some money, nothing unusual about the amount. She is a woman who works although no doubt the conduct of sitting and counting it in that way is a little out of the usual".

On this aspect, the evidence is somewhat vague. The Magistrate's conclusion was simply that there was nothing unusual in the appellant having some money and nothing unusual about the amount. His comment that she was a woman who worked was not necessarily referring to the fact that she was working right at that very time. In view of the Magistrate's finding that there was nothing unusual about the appellant having money in the amount she had with her in the presence of Mann, it seems to me that there is some substance in the submission that there was a rational explanation consistent with innocence which the prosecution had not excluded, viz. that the money in her possession was from a legitimate source and was not the stolen money.

Also there appears to be some substance in the submission that the Magistrate was not entitled to conclude that the appellant was in possession of stolen money simply because she was in possession of a substantial sum in respect of which she could not give a satisfactory explanation in the taped interview. She did not give evidence in court. The Magistrate did not decide that question of fact. He proceeded on the basis that the appellant had denied possession when in fact she had not done so. On the main point raised by counsel for the appellant, it is abundantly clear that the appellant did not deny counting money in the presence of Mann or that she had possession of it. The Magistrate was also in error when he said that the appellant had denied any knowledge of the sum of $130 when Mann on the second telephone call asked her about this sum.

The Magistrate misconstrued the evidence which bears directly upon what he himself described as "the crucial link in the chain".
Counsel for the Crown submitted that if the court took the view that the denial or denials the Magistrate attributed to the appellant were not correct and that this was a significant aspect of his thinking, there was still a strong substantial case so that the court should conclude that notwithstanding this error, the Magistrate would inevitably have come to the same conclusion. Counsel for the appellant submitted that if the court took this view, the conviction should be set aside and a new trial should be ordered.

In the result, notwithstanding that there is a body of circumstantial evidence implicating the accused, it cannot be said that the Magistrate would necessarily have concluded beyond reasonable doubt that the appellant was guilty of the offences as charged, had he not wrongly concluded that she had made a false denial in the two respects referred to. He appears to have drawn adverse inferences from her possession of a sum of money in respect of which he said she had made false denials. This view is supported by his conclusion that there was nothing unusual about the appellant having money in her possession or the amount thereof.

For the several reasons mentioned, I would allow the appeal and set aside the convictions and orders below. This leaves the question of whether a new trial should be ordered.

As indicated, there is circumstantial evidence implicating the appellant. Many of the inconsistencies referred to above are not critical although one particular discrepancy should be mentioned. Erica swore that Angela was asleep in the lounge when she left with Glenn at 5.00 p.m. for a half hour drive and that Angela was still in that same position asleep when she (Erica) returned about 5.30 p.m. or 6.00 p.m. On the other hand, Angela swore that after Erica left with Glenn, she was lying down to sleep on the bed on the front verandah where she remained and from which position she swore that she heard the appellant in the kitchen. One of them must be incorrect. Angela and the appellant were very drunk. Resolution of this conflict is doubtless a question for the tribunal of fact.

I have concluded in all of the circumstances that a new trial should be ordered. Accordingly the appeal is allowed, the conviction and sentence imposed below are set aside. There should be an order for a new trial.