Police v Dawe
[2014] QMC 19
•24 July 2014
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Dawe [2014] QMC 19
PARTIES:
POLICE
(prosecution)
v
LUKE GEORGE DAWE
(defendant)
FILE NO/S:
MAG152183/13(5)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge – Application to admit similar fact evidence
ORIGINATING COURT:
Magistrates Court at Toowoomba
DELIVERED ON:
24 July 2014
DELIVERED AT:
Toowoomba
HEARING DATE:
8 July 2014
MAGISTRATE:
Carroll JD
ORDER:
The evidence to ground charge 1 is not admissible at the trial of the defendant on charges 2 to 6.
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – EVIDENCE – admissibility of similar fact evidence
COUNSEL:
M Robinson (sergeant) for prosecution
Lynch for defendant
SOLICITORS:
Prosecution on own behalf
Bosscher Lawyers for defendant
The charges
The defendant is charged that:
(1) Charge 1 of 6
CRIMINAL CODE 398.6 STEALING BY CLERKS AND SERVANTS
That on the 10th day of August 2013 at Toowoomba in the State of Queensland one Luke George DAWE being the servant of Team Berlin Pty Ltd trading as Jax Quickfit Tyres stole a sum of money the property of Team Berlin Pty Ltd trading as Jax Quickfit Tyres which had come into his possession on account of Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
(2) Charge 2 of 6
CRIMINAL CODE 398.6 STEALING BY CLERKS AND SERVANTS
That between the 13th day of June 2013 and the 19th day of June 2013 at Toowoomba in the State of Queensland one Luke George DAWE being the servant of Team Berlin Pty Ltd trading as Jax Quickfit Tyres stole a sum of money the property of Team Berlin Pty Ltd trading as Jax Quickfit Tyres which had come into his possession on account of Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
(3) Charge 3 of 6
CRIMINAL CODE 398.6 STEALING BY CLERKS AND SERVANTS
That between the 1st day of May 2013 and the 7th day of May 2013 at Toowoomba in the State of Queensland one Luke George DAWE being the servant of Team Berlin Pty Ltd trading as Jax Quickfit Tyres stole a sum of money the property of Team Berlin Pty Ltd trading as Jax Quickfit Tyres which had come into his possession on account of Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
(4) Charge 4 of 6
CRIMINAL CODE 398.6 STEALING BY CLERKS AND SERVANTS
That between the 3rd day of April 2013 and the 10th day of April 2013 at Toowoomba in the State of Queensland one Luke George DAWE being the servant of Team Berlin Pty Ltd trading as Jax Quickfit Tyres stole a sum of money the property of Team Berlin Pty Ltd trading as Jax Quickfit Tyres which had come into his possession on account of Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
(5) Charge 5 of 6
CRIMINAL CODE 398.6 STEALING BY CLERKS AND SERVANTS
That between the 20th day of March 2013 and the 27th day of March 2013 at Toowoomba in the State of Queensland one Luke George DAWE being the servant of Team Berlin Pty Ltd trading as Jax Quickfit Tyres stole a sum of money the property of Team Berlin Pty Ltd trading as Jax Quickfit Tyres which had come into his possession on account of Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
(6) Charge 6 of 6
CRIMINAL CODE 398.6 STEALING BY CLERKS AND SERVANTS
That between the 23rd day of January 2013 and the 1st day of February 2013 at Toowoomba in the State of Queensland one Luke George DAWE being the servant of Team Berlin Pty Ltd trading as Jax Quickfit Tyres stole a sum of money the property of Team Berlin Pty Ltd trading as Jax Quickfit Tyres which had come into his possession on account of Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
The defendant has pleaded not guilty to charges 2 to 6. Through his counsel he has indicated that he will plead guilty to charge 1.
The evidence
The trial commenced on 27 February 2014. The investigating officer, Senior Constable Jason Steinhardt has given evidence as has Mr David Raymond McDermott. On that day the defendant was unrepresented. He is now represented by Mr Lynch of counsel. The trial has been adjourned pending, inter alia, the outcome of this application.
Senior Constable Steinhardt swore that on the night of 6 August 2013 he was contacted by Mr Stephen Berlin, a principal of Jax Quickfit Tyres complaining of the theft of five separate banking deposits from his business over a period from January to June 2013. On four of the five occasions the takings were made on Thursdays. These takings were kept for up to a week in the bank safe before banking.
CHARGE 1
On 8 August 2013 Mr Berlin contacted Senior Constable Steinhardt and told him that at the end of the day’s business he had found two $50 notes under the coin tray in the cash register.
On 9 August 2013 Mr Berlin contacted Senior Constable Steinhardt again and told him that he had found three $50 notes under the coin tray in the cash register. He has photographed these bank notes and recorded their serial numbers.
Mr Dawe was arrested by Senior Constable Steinhardt on 1 August 2013. He told the Senior Constable that he ‘had done a refund of $250’ to Mr McDermott. Senior Constable Steinhardt seized the defendant’s phone. There were incoming calls from Mr McDermott who attended the Toowoomba Police Station and handed the sum of $250 to Senior Constable Steinhardt. Mr McDermott swore that he was asked by the defendant to make a false request for a refund of the sum of $250.00 which he had allegedly paid on a lay-by for a set of mag wheels.
CHARGES 2 - 6
Senior Constable Steinhardt swore that at the end of each day the takings are placed in a National Australia Bank tamper proof deposit bag together with the deposit slip. The denominations of the monies are recorded on a tear away slip on the bag. The tear away slip is dated. Each bag has its own unique identification number. The tear-off slip is stored in a filing cabinet. The deposit bags are stored in the safe at the business. The bagged money remains in the safe sometimes for up to a week before it is banked. The five missing bags, the missing tag numbers and the dates thereof are as follows:-
225569718 29 January 2013 $1,385.00
225312136 21 March 2013 $2,076.00
225312145 4 April 2013 $2,238.50
225312167 2 May 2013 $2,077.00
229714122 14 June 2013 $1,351.00
Deposit slips were also placed in the bag. The butt of the deposit slip is retained in the deposit book.
The defendant and four other employees had access to the safe. All four other employees denied taking the subject monies.
CIRCUMSTANTIAL EVIDENCE
During his employment with Jax Quickfit Tyres the defendant experienced financial difficulty details of which are to be given by the employer. These included the following:-
(i) The defendant had difficulties paying his rent and was assisted by Jennifer Berlin, wife of Stephen Berlin.
(ii) The business was the subject of a garnishee proceeding in respect of the defendant’s wages.
(iii) The defendant sought cash advances on his pay to meet financial commitments.
The Issue
The issue is whether the evidence to ground charge 1 ie stealing of the $250, is admissible in the trial of the defendant with respect to charges 2 to 6.
Submissions
In his written submissions, Sergeant Robinson submitted, inter alia, as follows:-
“1. Executive summary
a. This case is purely an identification case based on circumstantial evidence. The fact that the company’s days takings were stolen on five occasions between February & June 2013 is not in issue. The issue is who it was that stole the money on those five occasions. In other words, the question to be decided at this trial is whether or not it was the defendant who took the day’s takings from the safe at Jax Quickfit Tyres (the business) on the five occasions [charges 2 to 6 inclusive] as charged in 2013. There being only five persons [inclusive of the defendant] that had access to the companies combination safe from which the monies were taken.
b. The prosecution rely on the conduct of the defendant in August 2013 when he stole $250 from under the till from the complainant company to prove the identity of the offender who committed the earlier five offences as being that of the defendant, Mr DAWE [Makin v Attorney General NSW 1894 AC 57] & also to negate his denial as to having committed the five earlier offences at trial [Thompson v The King 1918 AC 221]. This propensity evidence, the prosecution argue in this case, falls into the categories of identity evidence and similar fact evidence (Pfenning 1995 182 CLR] and should remain in evidence because its probative value as to it identifying the defendant as the offender outweighs the prejudicial value.
c. …
d. The prosecution case relies on:-
1. The evidence of the four prosecution witnesses [Steve Ross BERLIN, Jennifer Kim BERLIN, Christopher David McPHEE and Linda Anne TOOLEY] who will give evidence that of the five persons that had access to the company safe, they did not take the days takings from the safe on the periods alleged in charges 2 to 6 inclusive.
2. The evidence from prosecution witness Jennifer Kim BERLIN of the defendant’s financial difficulties in managing his own fiscal affairs inclusive of:-
· Warrant for Redirection of Earnings received by the business for $33 a week to be garnished (sic) from the defendant’s wages and paid to RACQ.
· SPER – Fine Collection. Notice of Redirection of Earnings received by the business for $50 a week to be garnished (sic) from the defendant’s wages and paid to SPER.
· The defendant using the work email address to apply for a small loan over the internet for a couple of hundred dollars. The business would then get emails from the loan (sic) company addressed to the defendant demanding repayment.
· The defendant would always loan (sic) items to Cash Converters when he was short of funds.
· The defendant got behind in his rent when residing at 12 Bowden Court, Toowoomba so Jennifer BERLIN liaised with the rental agency & negotiated a repayment plan to prevent the defendant from being evicted.
3. The evidence from prosecution witness Steve Ross BERLIN of the defendant’s financial difficulties in managing his own fiscal affairs inclusive of:
· The defendant was always crying poor and was often borrowing small amounts of $20 or so dollars from the business.
4. The charged act of taking $250 from the till of the business on 10 August 2013.
…
2.Trial Issue: Identification
a. In assessing the probative force of the defendant’s subsequent theft of $250 from the Team Berlin Pty Ltd trading as Jax Quickfit Tyres, the trial issue to which the evidence relates is relevant. This evidence must be probative and not be so prejudicial to preclude the defendant from a fair trial. The trial issue is identification, specifically whether the prosecution can prove, beyond reasonable doubt that it was the defendant who committed the offence alleged in the indictment. (Footnotes omitted)
3.Present Offences – Prosecution Case
a. …
b. …
c. The prosecution case is that the defendant was the person that took the missing takings on the five occasions without authority.
d. the prosecution case includes the following evidence with respect to identification:
i. The offences were all committed at Jax Quickfit Tyres, 332-340 James Street, Toowoomba where the defendant worked.
ii. The defendant had the combination to the safe at Jax Quickfit Tyres.
iii. The defendant had the opportunity as the assistant manager to commit the offences.
iv. All offences were committed at the same address against the same victim in the same way [taking the days takings from the safe].
v. Of the five persons that had access to the safe, the prosecution are calling four of them to testify that they had access to the safe but did not take the days takings on the five occasions. That leaves the defendant as the perpetrator.
vi. That the defendant was experiencing financial difficulties with warrants being served on the victim company to garnish (sic) his wages.
vii. That the defendant had difficulties paying his rent and had to be assisted by Jennifer BERLIN with this.
viii. That the defendant would want cash advances on his pay to meet financial commitments.
ix. That the defendant subsequently in August 2013 setting in a dishonest way by wrongfully taking $250 from is employer’s till.
4.Propensity Evidence
a. With respect to the stealing from the till offence for which the defendant has indicated that he will plead guilty, he used the same modus operandi when taking monies from his employer’s safe. The following similarities can be seen between the subject offences and the defendant’s steal $250 from till offence.
Offending in victim’s business premises
| 1. Offence committed on 10 August 2013 | Present Offences |
| Same location – 332-340 James Street, Toowoomba were the defendant worked | 332-340 James Street, Toowoomba were the defendant worked |
| Same victim – Team Berlin Pty Ltd trading as Jax Quickfit Tyres | Team Berlin Pty Ltd trading as Jax Quickfit Tyres |
| Same type of property - money | Monies |
| Same type of secured location under till under counter on victim’s premises | Safe in victim’s premises |
| Same type of breach of trust – trusted to handle monies of victim company | Trusted to handle monies of victim company |
| Same time – committed during day time office hours | Committed during day time office hours |
| Same time frame – committed in 2013 | |
| Worked alone to commit offence using innocent agent - David Raymond McDermott | Worked alone to commit offences |
| Same modus operandi – continued theft of money from same employer to service debts | Previous theft of money from same employer to service debts |
b. The underlying unity between the offences is that:
i. They were committed at the same location being the business premises of the victim – Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
ii. They all involved the theft of monies from the same victim – Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
iii. They all involved the same breach of trust against the same victim/employer – Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
iv. They all relied upon the fact that as assistant manager, the defendant was in a possession of trust that enabled him to continue to commit the same offences against the same victim – Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
v. The same method of entry has been used in all of these offences – namely entering the restricted staff only areas of the victim – Team Berlin Pty Ltd trading as Jax Quickfit Tyres.
This reveals a signature for the removal of money from the employer – Team Berlin Pty Ltd trading as Jax Quickfit Tyres that is specific and distinctive which, when combined with the evidence in the present offending, renders it objectively improbable that someone other than the defendant was involved. This in turn brings such strong unity to all of the offences that the probative force of this evidence outweighs any prejudicial effect.
5. Test for Admissibility
a. The basis for the admission of similar fact evidence in this case is that it possesses a particular probative value or cogency in that reveals a pattern of activity that, if accepted, bears no reasonable explanation other than the inculpation of the accused person.
b. It is submitted that the propensity evidence sought to be led in this case satisfies this test and that, when considered in addition to the other evidence, raised the objective improbability that the charge before the court was committed by a person other than the accused.”
…
He referred to Pfenning v The Queen 1995(182) CLR 461 at 482-483. He also referred to R v JCM [2007] QDC 211.
Mr Lynch referred to The Queen v Pfenning (Super) and The Queen v Phillips (2006) 224 ALR 216 at paragraphs 59-64. In short he submitted as follows:
1. It is difficult to identify any similarities as the police are not aware of how the other offences occurred merely that there is a deficiency.
2. The purpose of the similar fact evidence is that it is so strikingly similar that it identifies the offender.
3. There is nothing identifiable which is strikingly similar in the manner in which the offences were committed or the nature of the offences.
4. Without knowing the mechanism for the deficiency evolving it cannot be said that the evidence is strikingly similar.
5. On the police reasoning it is alleged that because it has been identified that the applicant took the sum of $250 he was the author of the other stealings. That is the very reasoning which the High Court espoused the evidence should not be used.
Case Law
In Pfenning v The Queen (1994-95) 182 CLR 461 at 480-481, Mason CJ, Deane and Dawson JJ said “In this court, in conformity with earlier English authorities, it was accepted that propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged. But it was accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition. It was also accepted that, in order to be admissible, propensity evidence must possess ‘a strong degree of probative force’ or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity. Very often, propensity evidence is received when there is a striking similarity between different offences or between the evidence of different witnesses. ...” (Footnotes omitted)
In Phillips v The Queen [2006] HCA 4 at paragraph 54, the court unanimously said ‘...the need for similar fact evidence to possess some particular probative quality. The ‘admission of similar fact evidence...is exceptional and requires a strong degree of probative force’. It must have ‘a really material bearing on the issues to be decided’. It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’. ‘Its probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.’ The criterion of admissibility for similar fact evidence is ‘the strength of its probative force’. It is necessary to find ‘a sufficient nexus’ between the primary evidence on a particular charge and the similar fact evidence. The probative force must be ‘sufficiently great to make it just to admit the evidence, notwithstanding it is prejudicial to the accused’. Admissible similar fact evidence must have ‘some specific connection with or relation to the issues for decision in the subject case..’.
As explained in Pfenning v The Queen ‘the evidence of propensity needs to have a specific connection with the commission of the offence charge, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it’. (Footnotes are omitted.)
The so called similar fact evidence in the present case is the evidence relating to the stealing of the sum of $250 by the defendant.
Discussion
MODUS OPERANDI
I do not accept the thrust of the submissions from the prosecution. Firstly, it should be remembered that the stealing of the sum of $250 occurred over a number of days and was made up of two small amounts of money. The first amount of $100 (2 x $50 notes) was placed under the coin tray of the defendant’s employer business on 8 August 2013. The second sum of $150 (3 x $50 notes) was placed there on 9 August 2013. Either that day or the next day the defendant gave the sum of $250 to Mr McDermott and it was on his person when he was interviewed by Senior Constable Steinhardt on 10 August 2013. The five bank notes were the same bank notes placed under the coin tray in the till because Mr Berlin had photographed them and the serial numbers matched.
Secondly, the taking of the $100 and the $150 respectively, and even the sum of $250 is strikingly dissimilar to the amounts the subject of the charged offences. The latter involves sums of money between $1,351 and $2,238.50.
Thirdly, the hiding of the two and three $50 notes respectively on consecutive days under the coin tray in the till and giving $250.00 to Mr McDermott is very different from taking substantially larger sums of money from the safe in the business on five occasions over a period of four and a half months.
Fourthly, the amounts involved, i.e., $100 and $150 respectively, are more likely to be sums of money the defendant might take to address the financial problems which are the subject of evidence to be given by Stephen and Jennifer Kim Berlin. I refer to the amounts which are the subject of the garnishee proceedings ($33 per week), payment of the SPER debt ($50 per week), borrowing a few hundred dollars over the internet, borrowing from Cash Converters and borrowing $20 or so from the business.
IDENTIFICATION
I do not accept Sergeant Robinson’s submission on the issue of Propensity Evidence. At paragraph 4, page 7, of his submission he outlines what he describes as “similarities” between the so called similar fact evidence and the evidence in relation to the subject charges.
While there might be some commonality as outlined therein, the respective pieces of evidence, either alone or collectively, lack the probative force to identify the defendant, as distinct from his fellow employees and the proprietors of the business, as being the person responsible for taking the money the subject of charges 2-6. This commonality applies with equal force to the proprietors of the business and the other employees of the business as they do to the defendant. All persons worked for the victim company at its business address. They all had access to the safe. They were all trusted to handle monies. They all worked there during the day and had access to the monies received into the business. All of them, including the defendant, deny taking the large sums of money.
Conclusion
The evidence with respect to charge 1 demonstrates the defendant is a dishonest man. It would be clearly prejudicial if it were admitted at his trial of charges 2-6. However, for the reasons set out above, it lacks the probative force to identify the defendant as the perpetrator of the offences which are the subject of those charges.
In my view, the evidence to ground charge 1 is not admissible at the trial of the defendant on charges 2 to 6.
Damian Carroll
Magistrate