R v Dagis

[1994] QCA 378

IN THE COURT OF APPEAL	[1994] QCA 378
SUPREME COURT OF QUEENSLAND

C.A. No. 292 of 1994

Before	Fitzgerald P. Pincus JA. Cullinane J.
[R. v. Dagis] BETWEEN:

T H E Q U E E N

v.

JULIANNE DAGIS Appellant

Judgment delivered 28/09/1994

Separate reasons for judgment of the President, Pincus J.A. and
Cullinane J.A.; Pincus J.A. and Cullinane J.A. concurring as to
the orders to be made, the President dissenting in part.

_______________________________________________________________

APPEAL AGAINST CONVICTIONS DISMISSED
_______________________________________________________________

CATCHWORDS: CRIMINAL LAW - uttering - false cheque deposited to account of third party - appellant signed deposit slip using third party's name and asserted she knew PIN number of third party's keycard, which had been stolen - trial judge directed jury in terms of actual knowledge, and wilful blindness - whether latter direction sound - whether honest claim of right s. 22 Criminal Code.

Dykyj (1993) 29 N.S.W.L.R. 672.

Counsel:Mrs K McGinness for the appellant.

Mr J Henry for the respondent.

Solicitors:Legal Aid Office for the appellant.
Director of Prosecutions for the respondent.
Date of hearing:14 September 1994.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 28/09/94

The circumstances giving rise to this appeal are set out in the reasons for judgment of Pincus JA. and need not be repeated.

Neither of the charges against the appellant could be sustained unless the prosecution established, beyond reasonable doubt, that (i) on the count of uttering, the appellant knew that the cheque was false and (ii) on the count of receiving, the appellant knew that the keycard was stolen. The jury could only convict the appellant on both counts if it was satisfied that, although she knew the keycard was stolen, she knew that the cheque was not stolen, but false.
Obviously, knowledge was not directly proved; it was required to be inferred. And, for the jury to convict, it had to be satisfied that the appellant's material knowledge was the only rational conclusion to be inferred from the matters which were proven.
There were undoubtedly aspects of the appellant's behaviour which were suspicious, and the jury could, and probably did, reject her testimony. For example, she plainly told lies to the bank teller. It may be that the appellant is extremely gullible, yet she must have known that there was dishonesty involved. Her boyfriend's implausible story was accompanied by a perceived need for a female to make the deposit and the appellant's impersonation of the account-holder at the bank and her lies to the teller.
In my opinion, the jury was entitled to be satisfied beyond reasonable doubt that the key-card was stolen. Once the appellant's story was rejected, that was the only rational inference available.
But the cheque stands in a different position. It could have either been stolen or false. The fact that the keycard was stolen might more readily lead to a conclusion that the cheque also was stolen than that it was false. But, even if that were not so, what matter was established by the evidence that could justify the jury concluding, beyond a reasonable doubt, that the appellant knew that the cheque was false, not stolen?

The only answer made to this was that the cheque's falsity was apparent on its face. I cannot accept this submission, particularly when there was no evidence that the appellant had noticed the appearance of the entries on the cheque, and that the cheque was false seems not to have been apparent to the teller, who accepted it and paid into in the keycard-holder's account. The appellant gave evidence and the proposition that the falsity of the cheque was apparent was never put to her. The only material evidence which she gave concerning the cheque was "I didn't even really look at the cheque", and there was no further cross-examination on the answer. It was put to her that she knew that the keycard was stolen, but not that she knew that the cheque was false.

Accordingly, I would allow the appeal against the conviction for uttering on the simple basis that the prosecution failed to establish to the requisite standard an essential element of its case. However, the appeal in relation to the conviction for receiving should be dismissed.

The first complaint with respect to the trial judge's summing-up concerns a passage set out in the reasons for judgment of Pincus JA. under the heading "Wilful Blindness". As has been noted previously, including in the decision referred to by his Honour, R. v. Dykyj (1993) 29 NSWLR 672,, there is a potential problem associated with a direction which imports notions of ordinary or reasonable behaviour or belief in determining the state of mind of a particular accused; the jury may have its attention diverted by such a direction from the need for the prosecution evidence to satisfy a subjective, not merely an objective, test. Reference to "wilful blindness" or "closed mind" etc. may distract or confuse. The jury may ask itself merely what they, or an ordinary or reasonable person, would have concluded but for "wilful blindness" or a "closed mind", which is not the real issue. The question is whether an inference that the accused had the material knowledge should be drawn because, on what has been proved, that is the "only possible conclusion", to quote the trial judge in this matter; i.e., the only rational, not reasonable, conclusion.
However, while it would have been better if the reference to the appellant closing her mind had been omitted and it might have been preferable to give the redirection sought, I am not persuaded that, taken as a whole, the summing-up warrants allowing the appeal on this basis.

On the other points, I agree with Pincus JA.
I would therefore allow the appeal on the uttering charge, and dismiss it on the

receiving charge. The trial judge did not record convictions, and released the appellant upon her entering into a recognisance of $100 to be of good behaviour. In all the circumstances, including the attitude adopted with respect to penalty, a verdict of acquittal should be entered on the uttering charge.

REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 28/09/1994

This is an appeal against the appellant's conviction on two

counts, one of uttering a false cheque and another of receiving
a Westpac keycard, knowing it to have been stolen.

There was no dispute that the appellant uttered a false cheque, nor any dispute that she received a keycard which had recently been stolen; the issue at the trial as to each count was essentially the appellant's mental state: whether she uttered the cheque knowingly and fraudulently, and whether she knew that the keycard had been stolen.

The grounds of appeal amounted to three: that the judge erred in his summing-up on the mental element with respect to the charge of uttering; that he did not give the jury an adequate direction with respect to the defence of claim of right, under s. 22 of the Code; and that he wrongly told the jury that the defence had made a certain concession. It was not

submitted that the verdicts were unsafe.

The summing-up, parts of which are attacked, was not an elaborate one, and that was no doubt due to the circumstance that the basic facts of the matter were, except as to one topic,

not disputed; the case had to do with the inferences which the

Crown wished to have drawn from those facts.

The cheque the subject of count 1 was one taken from a
partially used cheque book which was stolen from a car in
December 1991; it belonged to one P J Williamson, the name

"P J Williamson Yacht Account" being printed on the cheque forms. The keycard was stolen from a woman called Marnie Jay

Petrie on 12 March 1992; it had been in Ms Petrie's wallet,

which was taken on that day.

On 18 March 1992 the appellant paid into Ms Petrie's Westpac bank account a cheque for $804, the form used being one of those stolen in December 1991. The cheque was one payable to cash. It purported to bear the signature of one P J Williamson, but on the evidence that appears to have been a forgery.

On the Crown evidence, the appellant approached a teller at a Westpac branch in Cairns, one P A Cronin, on the day the cheque bears - 18 March 1992. She presented the cheque and a deposit slip to Cronin; the deposit slip showed the amount of

the cheque on the front, but was not otherwise filled in. For

the purpose of filling the slip in, Cronin asked the appellant

what branch the account was held at and she replied "Brisbane, I think. I move around a fair bit". She added "I know the PIN

number" and produced the keycard, which is it appears called a "Handycard" by Westpac. Cronin, using the keycard, ascertained the location of Ms Petrie's account and the number of the

account from the bank's computer system; he filled out the deposit slip and asked the appellant to sign it; she signed "M J

Petrie". Cronin noticed that the signature differed from that

on the keycard. He gave the appellant a receipt for the deposit, but as she was leaving he operated a security camera,

apparently because he suspected fraud.

The appellant gave evidence by way of explanation of these apparently incriminating circumstances. She said that she obtained the cheque and the keycard from a boyfriend called Mark Hodges. Her evidence was that Hodges told her that an ex-

girlfriend had some of his property and that he had some pay

slips and a keycard of hers. Hodges told the appellant,

according to her:

" 'If I send her money, put money in her bank account and

pay' which was for $800.00, I think it was 'then

she'll send me my CD's back' ".

The appellant said that Hodges asked her if she would "put the

slip in" and reassured her that the proposed transaction was "fine" and that she should not worry about it. She said that Hodges told her nothing about how he came to have the cheque in

his possession, but "just told me that the cheque was his girlfriend's pay". Her account of her dealings with Cronin was

much the same as Cronin's, except that she said she told Cronin, when asked where the account was opened, that she was not sure, but that it was "Townsville, either Brisbane or Townsville"; she

denied having said, "I move around a fair bit". Initially the

appellant seemed to assert that she had been asked by Cronin to write Marnie's name rather than to sign that name, but subsequently she admitted that she was asked to sign the deposit slip.

There were, evidently enough, difficulties in accepting
that the transaction was thought by the appellant to be above
board. If it were, one might have expected the appellant's

evidence to include some explanation by Hodges, or at least inquiry by the appellant of Hodges, as to how he came to be in

possession of some "pay slips" of his ex-girlfriend, the word

"slips" apparently referring to cheques, one of which was supposedly that for $804. Further, the appellant said nothing to the bank teller Cronin to suggest that she was a person other

than M J Petrie whose name she signed; and Cronin's evidence

that she told him she knew the PIN number of the keycard was not

contradicted. Then the cheque which was supposed to be one of the "pay slips", obtained by unspecified means from the ex-

girlfriend, was a bearer, uncrossed cheque with the word "cash"

and the amount printed on it in ink, in rather amateurish fashion; it did not look like an ordinary pay cheque. Apart

from all that, the cheque bore as has been mentioned the date 18

March 1992, the date upon which the appellant approached the

bank; her evidence was that she did not notice the date. And if

Cronin was accepted, the jury must surely have been convinced that the appellant in effect represented herself to be Marnie

Petrie in her contact with Cronin. These were all indications

that the appellant must have been aware that the transaction was

a dishonest one, even assuming her story about the boyfriend's

explanations was true.

Wilful Blindness

The first count, based on s. 489 of the Code, charged that
the appellant knowingly and fraudulently uttered a false
document purporting to be a National Australia Bank cheque drawn

by P J Williamson for the amount of $804. The complaint under this head is that the judge gave a direction with respect to the meaning of "knowingly" which was too favourable to the Crown. His Honour told the jury that the Crown must satisfy them that, at the time the appellant uttered the document, she knew it was false and knew that she was uttering a false document. The

judge said that the knowledge must be actual knowledge and that

suspicion is not sufficient. His Honour said:
"If a person, however, is placed in a situation where he or

she has facts or circumstances brought to her attention at the time from which the only possible conclusion is that she, indeed, was at that time engaged in fraudulently uttering a false document, but chooses to close her mind to that obvious conclusion, it is open to you to decide, nevertheless, that you are satisfied beyond reasonable doubt that she had a sufficient state of mind to establish knowledge for the purposes of the section under which the count is brought".

His Honour went on to say that the effect of what he had just

said was that:
"...if you were satisfied beyond reasonable doubt that this

accused had that state of knowledge to which I referred then the facts of the matter would result in it being obvious that the accused was acting dishonestly and with an intent to do fraud".

Mrs McGinness for the appellant pointed out that a complaint was made below about that direction; counsel there submitted that there needs to be actual knowledge and that "the concept of wilful blindness is a preliminary step to determining as an issue of fact whether there was in fact an actual knowledge". The judge gave no further direction.

The utility of the notion of "wilful blindness" and its

proper limits were usefully discussed in the New South Wales

Court of Criminal Appeal decision in R v. Dykyj (1993) 29

N.S.W.L.R. 672. In the judgment of Gleeson CJ, with whom the other members of the Court agreed, emphasis is placed upon the difference between the subjective test - what the accused is proved to have thought or believed - and the objective test - "the way in which a reasonable person would have reacted to particular information or in particular circumstances" (674).

That distinction does not appear to loom large here; the judge said, indeed stressed, that the knowledge proved must be actual knowledge. His Honour did not say that if the only possible

conclusion from the facts and circumstances as they existed was that the appellant was fraudulently uttering a false document,

then the requisite knowledge was proved; what was conveyed was

rather that, if that was the only possible conclusion, but there was "wilful blindness", then it was open to the jury to be satisfied beyond reasonable doubt that the appellant had the requisite knowledge. What was said was more elaborate than, but in essence similar to, the critical part of the passage from the

summing-up in Dykyj, quoted by Gleeson CJ at p. 676:

"But if, on the other hand, you find that at the time he received the goods the accused wilfully closed his eyes to facts from which an ordinary person would conclude that the goods were stolen, you may find that he had the necessary guilty knowledge to support the charge of receiving".

That passage from the summing-up was approved by Gleeson CJ.

What was deficient about the summing-up in that case, according

to the reasons of Gleeson CJ, was in substance that remarks the judge later made diverted the jury's attention from the

subjective question which they had to ask themselves and indicated to them that they might apply an objective test (677).

It does not appear that an error in summing-up was made in

the present case, nor that the reference to a person being

placed in a situation where the circumstances lead to only one

possible conclusion would have been likely to mislead the jury.

This ground of appeal fails.

Claim of Right

Mrs McGinness argued that the judge did not sufficiently
direct the jury about the defence under s. 22. His Honour made

brief reference to that defence, but did not elaborate upon it.

He was asked to give more emphasis to the matter, but declined

to redirect.

The "defence" of honest claim of right under s. 22(2), if raised, places an onus on the Crown to negative the matters raised by the defence, which are honest claim of right and lack of intention to defraud. There was no doubt that there was a claim of right, but the issue in the case was whether the Crown had proved the requisite knowledge. If the jury were satisfied that, to use the judge's language, "this accused knew the document was false and knew that she was uttering a false

document", those findings could not be reconciled with the

existence of a doubt with respect to either of the elements of the defence of honest claim of right. If the appellant knew the

cheque was false, in the sense in which that concept was explained by the trial judge, there could be no question about the honesty of her actions with respect to it.

There was, therefore, no need for the judge to elaborate on

the s. 22 defence, and to do so would perhaps have raised an

unnecessary complication.

This ground of appeal also fails.

Concession

The last ground which was pressed was that the judge

wrongly told the jury that:
"It is apparently not disputed that the accused must have

allowed the teller to understand that it was a personal transaction that she was conducting as it was one for which she was apparently prepared to sign".

In asking for redirections, counsel for the appellant below

asserted that this had not been conceded and referred to the relevant evidence; the judge declined to give any further direction.

The remark just quoted, to which exception is taken by Mrs
McGinness, occurred in the context of a discussion of Cronin's

evidence. It will be recalled that, as explained above, Cronin's evidence was that when he asked the appellant what

branch the account was held in, she replied "Brisbane, I think.

I move around a fair bit." That was disputed by the appellant; she swore that she said that she wasn't sure and said

"Townsville, either Brisbane or Townsville". She denied having said that she travelled around a fair bit. Apart from this, the evidence the Crown gave relevant to this point was not contested. There appeared to be no dispute that she gave Cronin no indication that she was anyone other than the person whose name she signed on the deposit slip and whose keycard she had, nor was it disputed that she told Cronin she knew the PIN number of the keycard.

The judge's direction on this point was perhaps excessively
summary; it might have been better if his Honour had drawn the

jury's attention at this point to the difference between Cronin

and the appellant with respect to precisely what was said in
response to the question about the location of the account.

But for a number of reasons the proper conclusion is that the omission just mentioned should not be held to have vitiated the trial. A redirection was sought, but not on that aspect;

what the judge was asked to do was in effect to say that the appellant's evidence was that she thought she was entitled to sign Ms Petrie's name; that was hardly to the point, since the direction in question was about what the teller was allowed to

understand, not about the appellant's state of mind. Secondly, even on the appellant's version of her dealings with Cronin, he had no reason to think that she was anyone other than the person

whose name was on the keycard and whose name was signed by the appellant on the deposit slip; he said in effect that he was alerted only by the discrepancy in signatures on the keycard and on the deposit slip. It was never suggested that the appellant said she was not Ms Petrie. Lastly, the judge may perhaps have obtained the impression from the addresses that this aspect of the case was not a matter of dispute. When asking for

redirections, counsel did not suggest that he had earlier made any contention against the proposition which the judge told the jury was apparently not a matter in dispute.

In the result, all the grounds of appeal which were argued

fail and the appeal must be dismissed.

REASONS FOR JUDGMENT - CULLINANE J

Judgment delivered 28/09/1994

I have had the advantage of reading the reasons for

judgment of Pincus JA with which I agree.

The question of wilful blindness in cases where knowledge

in fact is an element of an offence can, as has been pointed out

in a number of judgments including the judgment of Gleeson CJ in R v Dykyj (1993) 29 NSWLR 672 and R v McConnell (1993) 69 A.Crim.R.39, give rise to difficulties. It is essential in such

cases that if reference is made to wilful blindness it is not done in a way which suggests to the jury that any objective test can be applied or that a state of mind less than actual knowledge can suffice.

Whilst there is no cause for concern as to the former of these matters in the directions of the learned trial Judge in this matter I had originally entertained some doubts as to

whether the directions may have suggested that something less
than actual knowledge would be sufficient.

However I am satisfied for the reasons which are contained in the judgment of Pincus JA that the direction did not have this effect or the effect of diverting the jury from a consideration of the appellant's actual knowledge that the cheque was false.

I agree with Pincus JA for the reasons given by him that

there is no substance in any of other grounds of appeal.

Although the notice of appeal did not allege that the jury
could not have been satisfied on the evidence that the appellant
knew of the falsity of the cheque, there was some discussion on

this subject in the course of the hearing. Specifically the question raised was whether it was open to the jury to conclude that the appellant knew that the cheque was false rather than

genuine though stolen. Again for the reasons given by Pincus JA

I am satisfied that it was open to the jury to infer such knowledge from the evidence.

The appeal against conviction on each count should be

dismissed.