R v Harris

[1997] QCA 106

IN THE COURT OF APPEAL	[1997] QCA 106
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 551 of 1996
Before McPherson JA Ambrose J White J
[R v Harris]

T H E Q U E E N

v

STEPHEN JOHN HARRIS

Appellant

McPherson JA
Ambrose J

White J

Judgment delivered 9 May 1997

Separate reasons for judgment of each member of the Court each concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:SECTION 568(1) OF THE CRIMINAL CODE - indictment specified a general deficiency of a specific sum of money - alleged theft occurred on 22 separate occasions - specific amount stolen on each occasion was known - jury given "particulars" of each occasion.

DIRECTIONS - whether trial judge ought to have directed on the basis that there were 22 counts as opposed to a single count for a general deficiency comprising of 22 occasions

DIRECTIONS - balance - time given to appellant's case - R v Morex Meat Australia Pty Ltd

and Doube [1996] 1 Qd.R. 418

Counsel:	Mr J Callanan for the appellant Mr M Byrne QC for the respondent
Solicitors:	Wilson Ryant and Grose for the appellant Queensland Director of Public Prosecutions for the respondent

Hearing Date: 3 April 1997

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 9 May 1997

I agree with the reasons for judgment of Ambrose J. The appeal against conviction should be dismissed.

REASONS FOR JUDGMENT - B. W. AMBROSE J.

Judgment delivered 9 May 1997

This is an appeal against conviction upon an indictment which before amendment

charged that the appellant:
"between 28 December 1994 and 30 September 1995 at Townsville dishonestly applied

to his own use property namely a sum of money belonging to Spotlight Stores Pty Ltd and at the aforesaid time he was an employee of the said Spotlight Stores Pty Ltd and further that the sum of money was of the value of $5,000 and upwards."

In the course of the trial the indictment was amended to charge that the appellant:

"between 28 December 1994 and 9 October 1995 at Townsville stole $23,345 belonging

to Spotlight Stores Pty Ltd and being the amount of a general deficiency."

The trial continued for 12 days. The Crown called 11 witnesses and tendered a good deal of documentary evidence. No evidence was called for the appellant.

The count as amended was framed under s.568(1) of the Criminal Code which provides:

"568(1) In an indictment against a person for stealing money, the accused person may be charged and proceeded against for the amount of a general deficiency, notwithstanding that such general deficiency is made up of any number of specified sums of money the taking of which extended over any space of time."

To prove that the appellant stole the money referred to in the count, the Crown was obliged to show that he fraudulently took it intending to permanently deprive the owner of it or perhaps intending to do with it one of the other things referred to in s.391(2) of the Code. Although it took a long time for its presentation, the Crown case was a relatively simple one.

The appellant was employed at the material time by Spotlight Stores Pty Ltd.
Although not employed to work in the room where the business takings of the company

were stored, it was his duty each day to take moneys from that place together with a deposit slip
to the company's bank and there deposit it to the credit of his employer.

The bank was within 100 metres or so of his place of employment and access to it was through a well trafficked public area.

It was the Crown case that on 22 occasions during the specified period, another employee of the company handed to the appellant a bag containing money together with a deposit slip recording the amount of money handed to him for deposit at the company's bank.

The evidence, called for the Crown, showed that on each of those 22 occasions the
appellant presented to the bank for deposit on behalf of the company a sum of money smaller
than that handed to him and that recorded on the deposit slip given to him with the bag of money.
On each of those 22 occasions an alteration had been made changing the sum initially

written on the deposit slip to the smaller sum actually presented by the appellant at the bank for

deposit.

Each of the 22 deposit slips was marked or initialled where the amount recorded on it had

been changed.

The alterations made to the deposit slips recorded reductions in amounts deposited which varied between $100 and $2,000.

The total of the 22 variations recorded on the face of the 22 deposit slips amounted to

$23,345.

On the morning of the trial, the Crown prosecutor at the request of counsel for the appellant agreed to provide "the particulars as to how the amount of $23,345 is made up". In the course of the trial he presented a document entitled "Calculation of the amount of $23,345" for the assistance of the jury "later in your deliberations - for dates and the amounts involved on each date".

In the course of the appeal this document was referred to as the "particulars of" the moneys stolen being the amount of the general deficiency contained in the count.

Upon appeal it was contended that when the Crown gave particulars of the manner in which the amount charged as the general deficiency was made up - by reference to different takings on each of the 22 specified occasions - the effect was to impose upon the Crown the obligation of proving beyond reasonable doubt each of 22 separate counts of stealing which might be deduced from the particulars given as to how the general deficiency was made up.

In fact the jury were required to return a special verdict with respect to the size of the general deficiency established to their satisfaction.

It was the Crown case supported by the evidence it led, that on the 22 occasions particularised, the appellant had been required to take to the bank and deposit on behalf of his employer a total sum of $149,161.22, but that he had in fact deposited $23,345 less than that sum and the calculation of that amount specifying the 22 different dates on each of which less than the required amount had been deposited to the credit of the appellant's employer simply reduced to convenient written form what could be calculated by examining each of the deposit slips and deducting from the deposit amount originally recorded the altered and reduced deposit amount which an officer from the bank indicated was the amount actually deposited by the appellant.

The appellant's case was conducted with a view to showing by cross-examination that the money handed to him on each of the 22 occasions was kept in an unlocked safe for periods of time in circumstances which may have permitted persons other than the appellant to have access to it. Stated shortly, there was canvassed exhaustively in cross-examination on behalf of the appellant the possibility that he had not ever received into his actual possession a greater sum of money than that which he actually deposited with his employer's bank and that some other person or persons may have been responsible for the deficiency between the sums of money recorded on the deposit slips by the authorised officer of the appellant's employer and the sums in the bag which the appellant actually deposited at his employer's bank.

In the course of the defence case (in cross-examination - and apparently in address to the jury) much was made of the fact that some variations on the deposit slips were obviously initialled by bank officers while others appeared to have been initialled by other persons; there was evidence that some initials were consistent with the hand-writing of the appellant; there was no evidence to this effect with respect to other initials and marks on the deposit slips. One of the variations had been effected by using "white out" material to assist in making the alteration.

Essentially however the Crown relied upon the evidence of an authorised officer at the place of the appellant's employment as to the sums of money that the appellant took into his possession to deposit at the bank and upon the evidence of a banking officer as to the sums of money he actually deposited with the bank.

It was conceded on behalf of the appellant that upon the evidence the jury could well have convicted him on 22 separate counts of stealing. However, it was objected that "the jury have just lumped them all together and from that point of view the fact that the special verdict was a finding of the full amount of the general deficiency really does not assist the Crown".

It was conceded that the Crown case with respect to each of the amounts contained in the 22 "particulars" was almost identical except with respect to the ways in which certain variations to the deposit slips had been effected and/or purportedly authenticated.

In essence the Crown contended that the appellant had stolen the amounts of money in the sums by which each of the 22 deposit slips had been varied.

Counsel for the appellant encapsulated his complaint as follows:

"... instead of the jury being asked to consider what were 22 separate thefts separately, they were invited to treat each of the alleged takings as a circumstance in a circumstantial case which it was said went to prove a general deficiency."

It was contended that in the circumstances of the case and the way in which it had been

conducted:
"... it was incumbent upon the Crown to prove each of those things [i.e. each of the

particulars] beyond a reasonable doubt and it was necessary that the trial judge directed the jury that before they can convict in respect of any individual amount, they need to be satisfied beyond reasonable doubt in respect of that."

It was contended that the jury ought to have been invited to dispassionately analyse the evidence in respect of each particular given and that the trial judge ought to have summed up the case to the jury on the basis that there were "22 counts" of stealing - one in respect of each of the particulars given - rather than a single count for a general deficiency comprising the total of those "22 counts".

In the course of his summing-up the learned trial judge instructed the jury as to the elements of the offence of stealing an amount of a general deficiency and that it was a circumstance of aggravation if the theft was by an employee and that it was also a circumstance of aggravation if the money stolen exceeded $5,000.

His Honour instructed the jury as to the terms of s.568(1) of the Code and pointed out that although the total amount charged "is made up of 22 separate takings and the 22 separate takings amount to $23,345, it is not a charge though of 22 separate offences. The charge is one offence".

He then instructed the jury that when they returned their verdict, should it be one of guilty, they would be asked whether the appellant was guilty of stealing $23,345 or a lesser sum and if so, what lesser sum.

His Honour instructed the jury that the case was a circumstantial one and his direction concerning the use of circumstantial evidence was not criticised.

In the course of his summing up his Honour directed the jury:

"The elements of the offence, as I said before are taking money without the consent of Spotlight with an intention to keep it and to permanently deprive Spotlight of it. They are the elements of the offence. The elements of the offence are not precisely what occurred on one of these 22 occasions. They are just circumstances going in to making up the body of proof involved in those elements. ...

The probative force of a mass of evidence may be cumulative making it probative (sic) of each item of evidence separately. You do not view, for example each banking separately in a hermetically sealed compartment and see if you can be satisfied beyond reasonable doubt as to whether he stole money on those occasions. You consider all of the evidence relating to each of those incidents to see whether at the end of the day, you can be satisfied beyond reasonable doubt of the elements of the offence. You should consider the cumulation of the evidence. But, by the same token, if you conclude, for example, that he stole the first amount, or took the first amount, you do not automatically conclude from that, that, for that reason alone, he took the other amounts. It is a matter for you, putting all the evidence together, whether all of that evidence permits you to be satisfied beyond reasonable doubt of the elements of the offence. You consider all of the evidence. ...

Does the evidence, all of it put into the melting pot, all of it approached in the way I have indicated, satisfy you beyond reasonable doubt that the accused did it, that he stole $23,345, or a lesser amount and if so, what lesser amount? Does all of the evidence put together point to him beyond reasonable doubt as the thief?"

The learned trial judge summarised the evidence relating to the written variations of the amounts initially recorded on each of the 22 deposit slips involved. There was handwriting identification evidence and other evidence touching the written variations made to each of those deposit slips. No complaint is made as to the manner in which he dealt with this aspect of the case.

In the course of a re-direction at the request of the jury his Honour instructed them that on the Crown case the appellant was required to bank $149,161.22 on 22 separate occasions but that on the evidence on those occasions he banked only $125,816.22, leaving a "shortfall of the amount alleged by the Crown, namely $23,345".

His Honour again drew to the attention of the jury that they needed to consider whether the appellant was responsible for the whole of the shortfall or part only of it or any of it.

In my view in the clearest of terms, s.568(1) of the Criminal Code authorised the form of the charge ultimately left for the jury's consideration. In any event, s.586(1) of the Criminal Code in Western Australia, in terms similar to those of s.568(1) of the Queensland Criminal Code, was so construed by the Court of Criminal Appeal of Western Australia in Caratti v R (1984) WAR 313 and by the Full Court of Western Australia in R v Mews (1989) WAR 38. This section changed the common law constraints on charging the stealing of a general deficiency in a case such as the present. The common law rule stated in R v Tomlin (1954) 38 Cr.App.Rep. 82 cannot stand with s.568(1) of the Code if the Crown elects to indict for a general deficiency as authorised by that section.

Although reference was made to Walsh v Tattersall (1996) ALJR 884 and in particular to observations contained in the judgments in that case concerning the inclusion of a series of similar offences in one compendious charge, that case in my view lends no assistance to the appellant in this case. The fullest particulars of the charge brought against the appellant were provided. It was clearly a case where, whether the charge be "compendious" or not, s.568(1) of the Criminal Code specifically authorises an indictment for stealing "the amount of a general deficiency notwithstanding that such general deficiency is made up of any number of specific sums of money ...".

Doubtless upon the facts of this case it was open to the Crown to simply present an
indictment containing 22 counts of stealing - one with respect to each of the particulars of
general deficiency provided at the outset of the trial. Had that been done it seems quite
improbable -
(i)that the Crown case would or should have proceeded in any different manner; or

(ii)that the appellant would have been in any way advantaged (or disadvantaged for that matter)

in his defence.
The Crown was persuaded by counsel for the appellant to provide the so-called

"particulars" which in essence merely amounted to a convenient summary of relevant parts of the documentary evidence upon which it relied to prove the stealing of the money specified as a general deficiency.

In this case the committal proceedings had been conducted on the basis that there were 22 separate charges of stealing and the appellant was committed to the District Court for trial on each of those charges.

Before the District Court, the appellant was initially indicted under s.408(C) of the Code upon the charge of "misappropriation of property". On his behalf objection was taken to the count being framed under this section conviction under which attracted a maximum penalty of 10 years' imprisonment. On the other hand conviction upon a count framed as a stealing charge under ss.568(1) and 391 of the Code attracted pursuant to s.398.6 (and .9) a maximum penalty of 7 years.

There was never any argument concerning framing the indictment to contain 22 separate counts of stealing for the sum specified in the "particulars" provided at the request of the appellant. Had a request been made to proceed on 22 separate counts the Crown may well have acceded to it. I can detect no advantage or disadvantage to either the accused or the Crown because of the way the case was conducted on the basis of a general deficiency with all the particulars provided, rather than on the basis of 22 separate counts of stealing.

Upon trial, the concern of the appellant was not with respect to a single count alleging a general deficiency as distinct from 22 separate counts of stealing, but rather to have a stealing charge for a general deficiency of a specified amount in preference to a charge of misappropriation of the same amount - by reason of the difference in maximum penalty provided in respect of each offence.

In my view this ground of appeal is insupportable.
It was also contended on behalf of the appellant that there was a lack of balance in the

summing-up in that the learned trial judge in effect spent insufficient time dealing with matters canvassed by counsel for the appellant both in cross-examination of Crown witnesses and in his final address to the jury, which extended for a little over two and a half hours.

At the close of the summing-up, counsel for the appellant made long and detailed submissions with respect to directions given concerning the reliability of circumstantial evidence generally and in particular the circumstantial evidence upon which the Crown relied in this case. At the conclusion of those submissions, counsel for the appellant complained that the trial judge "did not put the defence case" to the jury.

The learned trial judge replied:

"Well the defence case is that the accused has not been proved to do it. The procedures and the evidence is full of holes and hasn't excluded the fact that someone else could have taken the money."

Counsel for the appellant replied:
"But Your Honour has to put the defence case."

Perusal of the summing-up indicates that the learned trial judge did, in effect, devote time to what had been pursued diligently on behalf of the appellant throughout the trial - variations in the way in which the 22 relevant deposit slips had been altered to support the possibility that they had not all been altered by or at the instigation of the same person. Ultimately the learned trial judge asked counsel for the defendant to state what the defence case was that he should have put to the jury, to which counsel for the appellant replied:

"Your Honour the defence case is this, that there is very limited opportunity for the accused to have stolen the money, there is very limited opportunity for him to have amended the documents, there is no direct evidence of taking."

Then ensued a discussion as to what had been said in the course of the summing-up and

ultimately counsel for the appellant submitted:
"When Your Honour went through the individual counts Your Honour put the evidence

on the Crown basis and the Crown submissions. Your Honour did not put any of those defence matters and Your Honour has not summarised the defence case at all. In my submissions there has been a lack of balance in that way in that the matter has been put throughout on the basis from a Crown point of view."

Counsel for the appellant then observed that on the evidence there was often a long delay between the period of counting and banking, and that the learned trial judge had failed to put the defence case that the owner of the money employed "a very inefficient and poor system of accounting".

The learned trial judge agreed to redirect the jury to correct any possible "lack of balance" that might be perceived in his summing-up.

In the course of his redirection, he said:

"Now it was also suggested to me by Mr Walters that I did not put the defence case properly to you and that I did not adequately say what it was and that I did not sufficiently summarise it and therefore there was - it may [be] a perception of lack of balance on my part, but I certainly did not mean there to be that perception and so I have just been asked to summarise in brief terms what his case is again.

It is - and I mentioned it to you towards the end this morning really, I think, that - 'Did he do the banking and return the stuff to the store, unaltered, or did he also make the alterations and take the money or did someone else at the store or the bank, do those things'

I have been asked to say to you, in relation to the defence case, that there is a - and it is a matter for you. Because these are submissions put by Mr Walters to you, summarising the defence case, and it is a matter for you. They are not evidence but they are based on it. Some of them are based on evidence but it is a matter for you as to what you make of the evidence at the end of the day.

There was a very limited opportunity for the accused to - it is a matter for you as I said what you make of these. Limited opportunities for the accused to have stolen the money or amended the documents. There is no direct evidence of taking and - well that is clear, and that was the point of my circumstantial evidence summing- up to you. Mr Walters submits that there is not even circumstantial evidence about the taking. Well I have directed you on how you should approach the evidence. That the accused had very little access to the money. That the money was not secure. There was a long delay on some occasions between placing the money in the safe and taking it from the safe to the bank and for that reason and also because there are only three morning bankings there was a very inefficient and poor system of counting and that all of this points to it being more likely that someone else stole the money rather than the accused. All of the documents were not changed in the same way by the same method and an inability by some to recognise the handwriting of the accused.

Now it is a matter for you as to what you make of those when you balance it against the way the Crown puts its case and your consideration of all of the evidence."

In my view the summing-up given prior to the application for redirection could not support the criticism of lack of balance.

The effect of the redirection given at the request of counsel for the appellant was merely to put in summarised form at the very end of the directions given to the jury the criticisms mounted on behalf of the appellant of the circumstantial case presented against him by the Crown. "The case for the defence" in essence was simply a criticism of the adequacy of the positive evidence led for the Crown. It did not involve any evidence whatever led for the appellant. That of course is not to say that the criticisms advanced by counsel for the appellant during his two and a half hour address to the jury just before the summing-up commenced, should not have been adequately brought to the attention of the jury in the course of the summing-up. On my reading of the summing-up however those aspects of the Crown evidence highlighted in cross-examination on behalf of the appellant upon which the appellant relied in contending that it would be unsafe to infer guilt of the offence charged upon the whole of the evidence led against him, were referred to sufficiently in the course of the summing-up which occupied about two and a half hours.

We were informed that both counsel in the case addressed the jury in general terms as to the nature of a case based upon circumstantial evidence and its persuasiveness. The terms of the summing-up itself make it clear that the learned trial judge kept in mind what counsel had submitted and also dealt in some detail with critical aspects of the circumstantial evidence upon which the Crown relied. In dealing with that evidence he obviously kept in mind the appellant's criticisms of it made before the jury and referred to them as he proceeded to deal seriatim with the various aspects of circumstantial evidence upon which the Crown relied.

In my view it would have been perfectly open to the learned trial judge to decline to again "put the defence case" to the jury in the summarised form in which he was persuaded to do so by counsel for the appellant. The terms of his redirection amounted merely to a restatement in summarised form of his comments made throughout his summing-up. For example, when embarking upon consideration of the evidence given with respect to the variations made on each of the 22 deposit slips, his Honour had said to the jury:

"It is a matter for you when you consider all of the evidence whether you are satisfied beyond reasonable doubt that the accused was a man as opposed to the bank teller or tellers or Mrs Lewis, Mrs Henson, Miss Warner, Mrs Toohey, Mrs Ansell, Mrs Need, Miss Raphael, or someone else who worked at the store or who may have had access to the money at various times before it was banked."

Upon appeal it was contended that the redirection given to correct any perceived "lack of

balance" in the directions already given,
"was couched in language which must have tended to suggest to the jury that the learned

trial judge had been imposed upon by counsel for the appellant to give the redirection ... In those circumstances the redirection which followed and which was expressed in general terms cannot be said to have been given the weight of the judicial authority of the learned trial judge ...".

I have set out the remarks made by the learned trial judge preceding his redirection. As I read those remarks his Honour was simply explaining to the jury how after canvassing from time to time in the course of his summing-up the criticisms of the Crown case made by the appellant it had been suggested that the jury might perceive a lack of balance on his part. His Honour then assured the jury that he did not mean there to be any such perception and for that reason proposed to restate or summarise the various criticisms levelled at the circumstantial case presented against the appellant which, it emerges from the record, had been based on cross-examination of Crown witnesses.

Consideration was given to "lack of balance" in a summing-up by this Court in R v Morex Meat Australia Pty Ltd and Doube (1996) 1 Qd.R. 418 at p.420. It was there observed that in considering this complaint it was necessary to keep in mind that:

"... in summing-up, the interests of justice require that the defence should be ‘clearly and fairly presented to the jury': R. v. Sehmahl [1965] V.R 745, 748-749 applied in R. v. Veberka [1978] 1 N.S.W.L.R. 478, 479, 480; which does not mean that every single observation must be repeated; but that ‘the substantial defence must be put to the jury; but not every part or particular of it'. Trueman (1913) 9 Cr.App.R. 20, 24. Nor does it mean that:

‘an accused person is entitled to have his case presented to the jury in the summing up as an identifiable entirety to an extent equal to that employed in the presentation of the case for the Crown. It is obvious that in many cases the prosecution case may be complex and require lengthy explanation whereas the defence case may be simple so that a concise explanation of it is neither inadequate nor unfair ... The question in every case is whether the terms of the summing up itself taken as a whole contain sufficient presentation of the defence case to enable the jury to understand what it is.'

See Dominguez v R (1985) 63 ALR 181, 187 (Evatt, Shepherd, Miles JJ.)"

Having regard to the way in which the trial was conducted and the nature of the circumstantial case presented by the Crown in my view it would be very difficult indeed to support the contention that the summing-up before redirection lacked balance and was biased in favour of the Crown. However whatever argument to this effect may have been mounted the redirection given at the request of counsel for the appellant makes it quite impossible to sustain this complaint.

In my view there is no substance in this ground of appeal.
I would dismiss the appeal.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 9 May 1997

I agree with the reasons for judgment of Ambrose J. The appeal against conviction

should be dismissed.