R v Hill

[1997] QCA 275

IN THE COURT OF APPEAL	[1997] QCA 275
SUPREME COURT OF QUEENSLAND

CA No. 178 of 1997

Brisbane

[R v Hill]

T H E Q U E E N

v

KATHRYN JOYCE HILL

(Applicant) Appellant

Davies JA
Derrington J

de Jersey J

Judgment delivered 5 September 1997

Judgment of the Court

APPEAL AGAINST CONVICTION AND THE APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS:	Conviction for misappropriation of public moneys - whether miscarriage of justice occurred because of unbalanced summing up - whether convictions properly recorded.
Counsel:	Mr A. J. Glynn SC for the applicant/appellant Mrs L. Clare for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	1 September, 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 5 September 1997

The appellant was convicted in the District Court on two counts of misappropriation of school moneys. She was acquitted on two other similar counts. She was given 240 hours community service, and convictions were recorded.

The first count of which she was convicted involved misappropriating $229.85, a sum she drew by cheque from the school account, and deposited into her own account. She was the headmistress of a school, a two teacher school with other assistants. In drawing the cheque in that way, she infringed established procedures, which required two signatories. There was evidence that at the time she was under some financial pressure. She claimed to be reimbursing herself for the cost of computer software she had purchased for the school at a seminar. She claimed to have paid the cash from her own moneys, but the computer company representative Mr Neary had no recollection of receiving any such cash payment.

The other count on which she was convicted concerned her misappropriation of $120 given to her by a teacher’s aide, to be used to pay an outstanding account. The appellant did not pay the account. She claimed to have put the money into her jacket pocket and to have forgotten about it.

There were only two substantial factual issues in the case with relation to these counts: as to the former, whether there was a reasonable possibility that the appellant had used her own money to pay cash for the software, which the jury must be taken to have rejected; and as to the latter, whether there was a reasonable possibility that the appellant had innocently mislaid the money, which again the jury rejected.

The ground of appeal pursued before us was that a miscarriage of justice occurred because the summing up was unfair and unbalanced. The appellant furnished three particulars of that ground: first, that the learned judge “expressed his own views, clearly adverse to the appellant, at length and forcefully on the two counts upon which he was convicted”; second,

that the judge “commenced the summing up with a lengthy attack on defence counsel’s address, whilst telling the jury that it was an unusual course for him to begin in this manner”; and third, that the “defence case was put briefly and as a series of propositions advanced by the defence without any of the forceful arguments used when advancing propositions adverse to the appellant”.

While a trial judge has a broad discretion to comment upon the evidence and the course of the proceedings, the judge plainly must not overbear the jury. It is conceivable, as was submitted, that a judge may so strongly put his own views that even expressly reserving the ultimate determination to the jury may not overcome the imbalance - although as will appear, we are not satisfied that that occurred here. The proper approach on appeal is discussed in Broadhurst v R [1964] AC 441, 464, and particularly usefully for present purposes in R v Bolic and Judd [1969] Qd R 295, 305 where the Court said:

“There is no doubt that a trial judge is entitled to make such comments on the evidence as he thinks proper provided he makes it clear to the jury that the determination of the facts is for them, and that they are free to accept or reject his comments as they choose. The cases are conveniently collected in the judgment of the Full Court of Victoria in R v Tikos [1963] VR 306. Nevertheless an appellate court may still intervene if it considers a trial judge’s comments far stronger than the facts warrant (see Broadhurst v R [1964] AC 441 at 464; R v Mawson [1967] VR 205).”

The learned judge began his summing up with a lengthy comment on a particularly strong, and itself lengthy, critique by defence counsel, in his address, in relation to an important Crown witness, a Mrs Campbell - not important, however, in relation to count 1. The judge pointed out that he would not ordinarily have dealt with such a matter at the outset of a summing up: he obviously felt the need immediately to redress the balance as it were. In the course of his analysis, he twice said, with relation to the position taken by the appellant when she gave her evidence, “you only have her word” for it (which may be thought to bear upon the first particular of the ground of appeal). The judge in addition, it was said, put the defence

position in a merely narrative form, and not with “the forceful argument used to advance the
Crown case”.

The essence of the complaint was that the learned judge sought unduly to bolster the Crown case, by a detailed response to the criticism of Mrs Campbell and by putting the defence position in merely bland terms.

It may at once be said that that is an unduly critical assessment of the way the judge put the defence case. He put it fully, and apparently as it had been argued. It was not a particularly strong defence case. The judge was certainly not obliged to lend it the support of a favourable commentary.

Further, the learned judge was entitled to make an immediate observation on the lengthy defence attack on Mrs Campbell if he saw fit, and it might reasonably have been expected that because of the length of the attack, the response might also be lengthy. It reads overall as a comprehensive invitation to the jury to analyse rationally the position taken by the defence, not to be swayed by “oratory and colourful language” but “to keep your eye on the ball”.

Insofar as the judge said twice, in the course of a long summing up, that the jury only had the appellant’s word for certain claims, the observation was factually correct. It is generally preferable that such observations not be made, lest they distort a jury’s understanding of where the onus of proof lies. We are however satisfied that that did not occur here.

Three particular considerations run strongly against a contention that the approach of the learned judge should be taken to have overawed the jury to the point where the jury failed to determine the matter with appropriate independence.

The first is that the jury acquitted the appellant on count 2. The Crown’s case on count 2 depended on the evidence of Mrs Campbell. While the judge invited the jury to analyse defence counsel’s sustained criticism of Mrs Campbell in the first section of his summing up, he also later in the summing up told the jury that it should scrutinize and be careful about

accepting her evidence. The acquittal on count 2 shows that the jury did just that, and indicated that the jury could not have been overborne, by what the judge initially said, into accepting the evidence of Mrs Campbell come what may.

Secondly, the jury, significantly, sought a redirection in relation to count 2, concerning
a documentary exhibit. That was a letter from Mrs Campbell to the appellant in these terms:

“We’ve all been settling accounts with the tuckshop. Is there any money still outstanding on your tab. Can you please send it as soon as possible so everything can be cleaned up before the new boss arrives. Also can you please complete enclosed school record cards and send them in the enclosed envelopes to appropriate schools. Also sorry to keep nagging but Jean’s camp money still hasn’t arrived. Can this also be taken care of before the new boss arrives.”

The jury asked the judge, following the completion of the summing up, whether there was any evidence of the sending of the school record cards referred to in that letter - plainly enough, querying whether there was evidence consistent with the appellant’s receipt of the letter. The appellant claimed not to have received the letter, which was contrary to the claim of Mrs Campbell. This illustrates the jury adopting a discriminating approach, again inconsistent with a claim that the jury was overborne into accepting Mrs Campbell by an impression that the judge himself may have had a strongly favourable view of that witness.

The third consideration is that experienced counsel who represented the appellant did not, following the summing up, seek any redirection, and especially, did not then seek the discharge of the jury on the ground that the trial had miscarried. This suggests that counsel who heard the summing up as delivered, did not take the view that it was seriously unbalanced as now claimed, and was satisfied that the trial should proceed without his even raising any complaint as to its appropriateness.

We are satisfied, from a reading of the summing up as a whole, that the judge did not transgress beyond the reasonable limits of his statutory entitlement to make “observations upon the evidence” (s.620(1) Code).

The appeal against conviction must fail.
The appellant separately challenged the order of the learned judge that convictions be

recorded. Although, in sentencing the appellant, the judge did not express any particular reason for recording convictions, he did during the preceding discussion express the apparent assumption that “if there’s a conviction recorded, she will (still) be employed by the Education Department”. The appellant’s counsel conceded before the judge that the conviction was “public knowledge”, because, presumably, the trial had received considerable publicity in the Toowoomba area where it took place. In fact, the appellant’s employment with the Department of Education has been terminated, although, significantly, evidence was put before us to the effect that as far as the Department was concerned, the outcome of the appeal would not bear upon that termination. The appellant in fact resigned in anticipation of being dismissed. But the judge’s consideration should not be assumed to have focused just on that issue.

The judge took a particularly adverse view of the appellant’s credibility, describing her in his sentencing remarks as “close to the most unimpressive and dishonest witness I have ever seen in the witness box”. He described her approach as being to “deny any dishonest intent, to look for a scapegoat if at all possible, and if you were painted into a corner, to pay compensation ...”. The character of an accused person is one of the matters specifically listed as relevant to this issue in s.12 of the Penalties and Sentences Act. So is “the nature of the offence”, and the judge said that he regarded as “of real concern”, that these offences involved breach of trust in relation to public moneys intended for use by school children. As to the effect of a conviction on the obtaining of employment, the judge was referred to previous statements in this Court to the effect that it may be a relevant consideration that prospective future employers be informed of past dishonest activity - where, for example, it is relevant to the sort of future employment an accused person may be seeking.

In these circumstances, there was sufficient justification for an exercise of discretion in favour of recording a conviction. This Court therefore should not interfere with that aspect of the sentence.

The appeal against conviction and the application for leave to appeal against sentence

are dismissed.