McLeod v Greer
[2003] WASCA 199
•29 AUGUST 2003
MCLEOD -v- GREER [2003] WASCA 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 199 | |
| Case No: | SJA:1015/2003 | 27 JUNE & 8 AUGUST 2003 | |
| Coram: | PULLIN J | 29/08/03 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Charges remitted for rehearing | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN WILLIAM MCLEOD ALAN JAMES GREER |
Catchwords: | Criminal law Evidence Charges of stealing Circumstantial evidence Necessity to make findings of intermediate facts and to consider the circumstantial evidence as a whole |
Legislation: | Criminal Code (WA), s 378(7) |
Case References: | Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Australian Coal & Shale Employers' Federation v The Commonwealth (1953) 94 CLR 621 Brown v The Queen (1994) 72 A Crim R 527 Daley v The Queen [1979] Tas SR 75 Davern v Messel (1984) 155 CLR 21 Devries v Australian National Railways Commission (1993) 177 CLR 472 Grayden v The Queen [1989] WAR 208 House v The King (1936) 55 CLR 499 Knight v The Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 Martinac v Cousins, Smith & Bromfield, unreported; FCt of WA; Library No 866488; 27 October 1986 Pickett v Fuderer; unreported; FCt of WA; Library No 980475A Rosenberg v Percival [2001] HCA 18 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Stockman v The Queen, unreported; CCA SCt of WA (Murray J); Library No 960267A Talbot v Lane (1994) 14 WAR 120 Thorogood v Warren (1979) 20 SASR 156 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Weissensteiner v The Queen (1993) 178 CLR 217 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ALAN JAMES GREER
Respondent
Catchwords:
Criminal law - Evidence - Charges of stealing - Circumstantial evidence - Necessity to make findings of intermediate facts and to consider the circumstantial evidence as a whole
Legislation:
Criminal Code (WA), s 378(7)
Result:
Appeal allowed
Charges remitted for rehearing
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr J W M Foulsham
Respondent : Mr J D Allanson
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : J A Bougher
Case(s) referred to in judgment(s):
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Case(s) also cited:
Australian Coal & Shale Employers' Federation v The Commonwealth (1953) 94 CLR 621
Brown v The Queen (1994) 72 A Crim R 527
Daley v The Queen [1979] Tas SR 75
Davern v Messel (1984) 155 CLR 21
Devries v Australian National Railways Commission (1993) 177 CLR 472
Grayden v The Queen [1989] WAR 208
House v The King (1936) 55 CLR 499
Knight v The Queen (1992) 175 CLR 495
M v The Queen (1994) 181 CLR 487
Martinac v Cousins, Smith & Bromfield, unreported; FCt of WA; Library No 866488; 27 October 1986
Pickett v Fuderer; unreported; FCt of WA; Library No 980475A
Rosenberg v Percival [2001] HCA 18
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
(Page 3)
Stockman v The Queen, unreported; CCA SCt of WA (Murray J); Library No 960267A
Talbot v Lane (1994) 14 WAR 120
Thorogood v Warren (1979) 20 SASR 156
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Weissensteiner v The Queen (1993) 178 CLR 217
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
(Page 4)
1 PULLIN J: This is an appeal by the appellant prosecutor against the decision of Mr R H Burton SM on 28 January 2003, when he found the respondent not guilty of 12 charges of stealing as a servant.
2 The first charge against the respondent was charge no 27704, and it read:
"On or about the 3rd of July 1997 at Perth, Alan James Greer, being a servant of Weatherford Australia Pty Ltd stole $288.00, the property of the said Weatherford Australia Pty Ltd" contrary to "Section 378(7) Criminal Code".
3 The form of the 11 other charges followed the form of the above charge. The dates and the amounts alleged to have been stolen by the respondent on those other 11 charges were as follows:
Charge No | Date | Amount $ |
27705 |
|
|
27706 |
|
|
27707 |
|
|
27708 |
|
|
27709 |
|
|
27710 |
|
|
27711 |
|
|
27712 |
|
|
27713 |
|
|
27714 |
|
|
27715 |
|
|
4 As permitted under Chapter XLIII of the Criminal Code, the 12 charges were tried summarily before his Worship.
(Page 5)
5 There are four grounds of appeal. The main one is to the effect that the learned Magistrate erred in law in failing to consider all of the circumstantial evidence together in reaching his decision. I will refer to the grounds in detail further on in these reasons, but I should begin with an outline of the prosecution case. It is necessary to do this because his Worship made very few findings of fact in his reasons for decision.
Prosecution case based on circumstantial evidence
6 The case for the complainant was based on circumstantial evidence because no-one saw the respondent steal any of the money, or saw him do any of the acts which resulted in the money being stolen from his employer, Weatherford Australia Pty Ltd ("Weatherford"). Some evidence related to particular charges. For example, in relation to one charge, there was evidence that the respondent's fingerprint was detected on the deposit slip used to deposit the cheque for the amount referred to in the charge. There was evidence that the respondent's writing appeared on some cheque butts the subject of some of the charges, and that his handwriting was on some of the deposit slips in relation to some of the charges. Other evidence was of a more general nature and related to all of the charges and supported a conclusion that the respondent had the opportunity to, and did, commit the offences. For example, the fact that the respondent was the Assistant Accountant for Weatherford and was responsible for drawing cheques and giving instructions to Weatherford's bank to pay amounts to employees and that all the thefts were made through the payroll section by cheque or fax instructions, was evidence that the respondent had the opportunity to commit the offences. Other evidence, for example, the evidence that the respondent was responsible for reconciling the bank statements to the cash payments book, carried out the reconciliations and did not report the fact that the cash payments did not reconcile with the form of bank statements used in the reconciliation process, was also circumstantial evidence relevant to all the charges.
Prosecution case generally
7 The evidence revealed that the respondent was employed by Weatherford in March 1997 and finished employment on 8 May 1998. All of the offences occurred within that period of time. Weatherford was part of a world-wide group of companies providing personnel and equipment services to the oilfield industry. Weatherford had its head office at 17 Truganina Road, Malaga. A Mr James Budicin was the company's Financial Controller. The respondent, when employed as
(Page 6)
- Assistant Accountant, signed a contract which provided that his duties were those assigned to him by the Financial Controller. Mr Budicin put in writing, by way of announcement within Weatherford, that the respondent had various duties, including a direct responsibility for payroll and bank reconciliations.
8 Mr Budicin said that the task of performing bank reconciliations was performed by the respondent during the period of his employment. That task was to reconcile Weatherford's cash book journals to Weatherford's ANZ Bank statements. The ANZ Bank account operated by Weatherford was located at the Malaga Branch. As the person responsible for the payroll, the respondent caused Weatherford's cheques to be drawn to pay employees. The respondent was a signatory to the ANZ account, and a signature from one of several other signatories was required before the cheque signed by the respondent would be honoured by the Bank. A payment to an employee would be recorded in the cash payment journal. Details of the payment would also be recorded on the cheque butt. As to the cheque itself, the amount, name and date would be either written or typed onto the cheque before being signed by the respondent and another signatory, or by two of the other signatories.
9 A second method was also used to make payments to employees. This involved the respondent sending a fax on behalf of Weatherford to the ANZ Bank at Malaga. It would be signed by the respondent and one or more of the signatories. The fax would authorise the ANZ Bank to debit Weatherford's account with a specified sum referred to in the fax, and would authorise the ANZ Bank to deposit the moneys to the credit of Weatherford's employee's bank account. Upon receipt of the fax, the ANZ Bank at Malaga would then arrange for the deposit of the specified amount to the account specified in the fax. These transactions were also recorded in the cash payments journal.
10 Each week, the ANZ Bank would send a bank statement to Weatherford, and the respondent's task was to reconcile the bank statement to the cash journal.
11 His Worship found that there was no doubt that the moneys referred to in the 12 charges was stolen from Weatherford. The issue was about who was responsible for the theft.
12 The fraudster's mode of operating involved using one or other of the two payment methods referred to above. In some cases, cheques were drawn in favour of a person called Keith Gillespie or Noel Barr in
(Page 7)
- payment of wages. Five charges related to cheques. Three cheques were drawn in favour of Gillespie, and two in favour of Barr. Weatherford did not employ persons called Barr or Gillespie and did not owe any moneys to persons by those names. As far as Weatherford was concerned, those persons did not exist. The cheques drawn in favour of Gillespie were paid into an account which had been opened at Westpac Dianella in the name of Gillespie. Cheques in favour of Barr were paid into a Commonwealth Bank account in the name of Barr. In due course, the moneys deposited into the accounts were withdrawn. It might be assumed that the person who withdrew the moneys was the fraudster, but it was not proved who withdrew the moneys from the Gillespie or Barr accounts. That does not matter. The payment of the cheques to the accounts of Barr and Gillespie constituted the stealing.
13 The second method used by the fraudster involved sending a facsimile on behalf of Weatherford, requesting the ANZ Bank to pay moneys into the Gillespie Westpac bank account and to debit Weatherford's ANZ account with such payment. These facsimiles were acted upon by the ANZ Bank, and once again the moneys were stolen when they were transferred by the ANZ Bank to Gillespie's account. Seven charges related to faxes authorising payment to the Gillespie account.
14 Some of the facsimiles bore the signature of the respondent. The cheques or facsimiles also bore what appeared to be the signature of other Weatherford authorised signatories. The evidence was that the latter signatures were forgeries.
15 The seven fax transactions were not recorded in the cash payments journal within Weatherford's office. In the five cases relating to the cheques, the cheque butts falsely recorded the transaction. Mr Budicin identified the respondent's writing on some of the butts and on some of the cheques. In two cases, the respondent's handwriting was identified by a police forensic officer on the deposit slips used to pay the cheques into the Gillespie account. On one deposit slip, the fingerprint of the respondent was found.
16 When the ANZ weekly bank statement was printed out by the ANZ Bank, the statements showed each fraudulent transaction as a debit entry on the bank statement. The bank statements were sent by the ANZ Bank to Weatherford's office, and they were put by a member of staff into the respondent's in tray.
(Page 8)
17 At some stage after the bank statement was printed by the ANZ Bank, someone obtained the bank statement, scanned it into a computer and adjusted the image so that the fraudulent transaction was removed as a debit item. This adjusted image was then printed out. Without close examination, it appeared to be an original ANZ statement. It was this adjusted bank statement which was, according to Mr Budicin, used by the respondent to carry out his task of reconciling the bank statement and the cash journals. The original bank statements were tendered in evidence. All save two of the tampered versions were tendered into evidence. The other two could not be found. In each case, the tampered version of the bank statements revealed on its face that the reconciliation process was carried out using the tampered copy. This shows up by the fact that the items on the tampered versions of the bank statements have been ticked and a stamp reading "posted" appears on the tampered statements. Mr Budicin gave evidence that the respondent's signature appeared on some of them. A comparison of the tampered statement with the original statement in each case where the altered statements survive, shows the fraudulent transaction on the original bank statement but not on the altered statement which was used for reconciliation purposes.
18 It is important to note that the person who tampered with the original statement only adjusted the image by removing the fraudulent transaction and did not make any alteration to the balance on the altered bank statement. As a result, the balance arrived at by deducting all of the debit items and adding all credit items from or to the opening balance, did not match the closing balance which appeared on the tampered bank statement. It differed by the amount of the debit item which had been removed. As a result, when the respondent carried out the process of the reconciliation, and if he performed the job correctly, then he must have detected the fraud. This was especially so where the amount stolen was not recorded in the cash payments journal. In those cases, the balance in the cash payments journal could not have matched the closing balance shown on the tampered bank statement. This happened in relation to three of the cheques.
19 The respondent's responsibility was to report to Mr Budicin. Mr Budicin said he did not become aware of the discrepancies until after the respondent left his employment, and so from that it may be inferred that the respondent never reported what he observed. This failure to report was evidence to be added to the other circumstantial evidence in the case.
(Page 9)
20 The cheques when paid into the Gillespie or Barr bank accounts were accompanied by a deposit slip. In two cases, namely those relating to charges 27706 and 27715, the respondent's handwriting was identified on the deposit slip.
21 The learned Magistrate should have approached his task by examining the evidence in relation to each charge and making relevant findings of fact. As I have mentioned, some of the evidence would relate only to that charge, and added to it would be the circumstantial evidence of a general nature. So, for example, in relation to charge number 27706 – relating to the cheque number 396552 for $986.40 made out to K Gillespie – the evidence of Mr Budicin was that the cheque was written out in the handwriting of the respondent. According to the police forensic expert, the deposit voucher was written out in the name of the respondent. According to Mr Budicin, the cheque was not recorded in the cash payments journal. According to Mr Budicin, the cheque butt was marked "cancelled". If the learned Magistrate had accepted that evidence, then to that evidence could be added the evidence about the respondent's position in the company which gave him the opportunity to write out the cheque and to falsely record the information on the cheque butt, the fact that the respondent carried out the reconciliations, and the fact that the respondent did not report any discrepancy to Mr Budicin. A reading of the learned Magistrate's reasons for decision reveals that separate consideration was not given to each charge. Relevant findings of fact were not made. However, these points are not made the subject of any ground of appeal.
The main grounds of appeal
22 Ground 2(c) complains that the learned Magistrate erred in law and in fact in failing to consider all the pieces of circumstantial evidence listed in that ground together to reach his decision to dismiss the charges. The list reads as follows:
"(i) that the Respondent was responsible for the payroll and that all the money stolen was transferred out of the company by payments made through the payroll section by cheque or telegraphic transfer;
(ii) that the further telegraphic transfers transferring money out of the company and referred to by the learned Magistrate and for which the Respondent was not charged also originated in the payroll section;
(Page 10)
- (iii) that the cheque butts for the cheques used to steal money were identified as being in the Respondent's handwriting;
(iv) that all payments made into the bank accounts opened in the false names of Barr and Gillespie were paid in while or immediately after the Respondent was employed and that all the money was taken out of the bank accounts shortly after his employment ceased;
(v) the handwriting of the Respondent was identified on 2 deposit slips used to pay stolen money into the account in the false name of Gillespie;
(vi) the fingerprint of the Respondent was identified on a deposit slip used to pay stolen money into the account in the false name of Barr and on a cheque used to pay stolen money into the account in the false name of Barr."
23 In a case based on circumstantial evidence, all of the circumstantial evidence must be considered together. Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535 put it this way:
"… in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together' ... It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference."
24 It is therefore clear that all of the relevant circumstantial evidence should have been identified by his Worship in relation to each charge. When that task had been completed, his Worship should then have decided, in relation to each charge, whether guilt was the only rational inference that could be drawn from the circumstances. See Shepherd v The Queen (No 5) (1990) 170 CLR 573 at 578.
25 It is quite clear that his Worship did not proceed as directed in the Chamberlain and Shepherd cases.
(Page 11)
26 As I have said, the point of complaint which is made by the appellant in ground 2(c) is that his Worship erred in law in failing to consider all of the circumstantial evidence when considering the respondent's guilt or innocence. The appellant's ground 2(c) lists some of the circumstantial evidence. In my opinion, more could have been listed. His Worship correctly identified the case as one involving circumstantial evidence. He referred to evidence about a fingerprint on one of the Barr deposit slips and handwriting on a Gillespie deposit slip as circumstantial evidence and then said: "Do two swallows make a prosecution summer?" By that, I understand his Worship to have been asking rhetorically whether an inference of guilt could be drawn from those two pieces of evidence.
27 As I have already mentioned, his Worship did not make necessary findings of fact and did not identify all of the circumstances which he had to consider in deciding whether they pointed to the guilt of the respondent or whether they left open a reasonable inference consistent with innocence. The failure to identify and to consider the whole of the relevant circumstances which included those listed in ground 2(c), is an error which must result in the quashing of his Worship's decision to acquit the respondent of all charges.
28 Both parties accepted that if I upheld the appeal and quashed the decision of the Magistrate to acquit, then the order that I should make would be to remit the matter to the Court of Petty Sessions to be tried before another Magistrate. That is the order I will make.
29 Finally, I should mention ground 2(a), which complains that the learned Magistrate erred by exercising summary jurisdiction in failing to commit the respondent for trial in the District Court. In view of my decision to quash the decision to acquit, it is unnecessary to consider this ground, save to mention that the respondent elected to be tried summarily: see s 426(1)(b) and (2) of the Criminal Code. The Magistrate who hears the matter, if he or she convicts the respondent, retains a discretion pursuant to s 427(2) of the Criminal Code to commit the respondent for sentence if the Magistrate forms an opinion that the sentence that the Magistrate is empowered to impose is inadequate in the circumstances.
30 Ground 2(b) complains about erroneous findings of fact. It is unnecessary to consider this ground because the case will be retried before another Magistrate.
(Page 12)
31 I therefore repeat that I allow the appeal. I quash the verdict of acquittal in relation to all 12 charges. I remit the matter to the Court of Petty Sessions to be retried before another Magistrate.
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