R v Kaplan
[2005] VSCA 316
•22 December 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 151 of 2005
| THE QUEEN | |
| Respondent | |
| v. | |
| MAX KAPLAN | Applicant |
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JUDGES: | CHARLES, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 November 2005 | |
DATE OF JUDGMENT: | 22 December 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 316 | |
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Criminal law – Theft – Admissibility of statements in documents pursuant to s.55 of the Evidence Act 1958 – Documents related to a business – Documents made in the course of a business – Similar fact evidence – Amount and frequency of transactions relevant to mens rea.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr P.G. Priest, Q.C. with Mr J. Dickinson | Slades and Parsons |
CHARLES, J.A.:
1 Having had the advantage of reading the reasons for judgment prepared by Buchanan, J.A. I agree that these applications for leave to appeal against conviction and sentence should be dismissed, for the reasons given.
BUCHANAN, J.A.
The applicant, who is now 57 years old, in 2000 and 2001 was the manager of the Waverley campus of the Holmesglen Institute of TAFE. The applicant was in charge of a 26 acre campus accommodating thousands of students together with a large teaching and administrative staff. The campus managed by the applicant included a commercial nursery. Students were employed in growing plants and selling the plants and other nursery products.
The applicant was arraigned in the County Court and pleaded not guilty to a presentment containing 83 counts of theft. The thefts were of money taken from two tills in the nursery during the period from 1 December 2000 to 3 March 2001. The amounts ranged from $2 to $1,600. At the conclusion of the trial the applicant was found guilty of 53 counts, involving a total of $28,650.
After a plea the applicant was sentenced to be imprisoned for a term of nine months on each of counts one to eight and ten to nineteen, to a term of eight months on each of counts 21 to 41 and to a term of seven months on each of counts 43 to 45, 47 to 49, 52, 53 and 58 to 63. The sentences in each of the three groups were made concurrent with each other, but cumulative on the sentences from the other groups, producing a total effective sentence of two years imprisonment. The sentencing judge directed that one year of that sentence was to be suspended for 30 months.
The applicant seeks leave to appeal against both conviction and sentence.
The Crown case was that the applicant instructed the staff working in the nursery to remove from the tills the sums referred to in the counts. The applicant directed the employees to enter the sums as refunds by pressing the refund button
on the till register although, according to the Crown, no refunds occurred and the applicant retained for his own use the money taken from the tills.
Matthew Lee-Archer was employed in the nursery as a sales assistant. He gave evidence that the tills in the nursery were equipped with a refund button and a no sale button. The former generated a refund slip and the latter opened the till drawer. Lee-Archer said that the applicant attended the nursery each day and pressed the no sale button or asked one of the employees to do so. He would then ask the staff to record a refund. The applicant took the refund slip and money from the till and put them in his pocket.
In December 2000 Lee-Archer commenced to record the applicant’s transactions in a diary and continued to do so until 19 February 2001. Later he converted the entries to a spreadsheet. The entries recorded occasions on which Lee-Archer was asked by the applicant to press the refund button and other occasions on which he was told by other members of staff that they had done so at the applicant’s request. The witness said:
“I returned from holidays on the first week of December and the refunds started to increase dramatically over the course of the period, so I believed that something was not right. There was no explanation, so I just started writing everything down, documenting everything that was going on.”
The diary and the spreadsheet were tendered and admitted in evidence.
David Compasso was another person who worked in the nursery. He gave evidence in similar terms to that of Lee-Archer. Compasso also kept a record of the applicant’s transactions. He noted refunds on scraps of paper and then entered the details in two diaries, which were admitted in evidence.
Two others who worked in the nursery gave evidence that the applicant on occasion asked them to transact refunds and hand him the money and the receipts, which he took away with him. Their supervisor was told of the applicant’s conduct and asked the applicant why he was directing the staff to make refunds. The applicant said it was to balance the budget and he was not to worry about it. Other employees of the Institute said they saw the applicant taking money from the tills in the nursery. At the conclusion of the Crown case, the prosecutor conceded that there was no case to answer on counts 65 and 70 to 83 and the jury were directed to return verdicts of not-guilty on those counts.
The applicant gave evidence. He said that he did request staff of the nursery to record refunds and received the money. He gave various explanations for his actions. One was that there appeared to be errors in operating the tills which led to an imbalance between the required funds and the funds available. The applicant said that he requested refunds to be recorded without taking any money from the till because the refund amount would reduce the shortfall at the end of the day. The applicant said that on occasion he instructed the staff to record a refund and to open the till and give him money from the till which he took away. He said that he took large notes in order to convert them at banks into smaller denominations, which he returned to the till, or to place in a safe or in his office. He also said that he changed the money by resorting to coins used in the telephones and photocopiers on the campus. The applicant denied that he retained any of the money for his own use. Although the applicant said that he did not perform as many transactions as were recorded by Lee-Archer and Compasso, he did not deny that on many occasions he carried away money from the tills. The applicant did not say that he returned to the Institute the money he removed otherwise than by placing change in the tills. The principal issue was whether he did return the money in this way.
In lieu of the existing grounds of the application for leave to appeal against conviction, counsel for the applicant advanced two new grounds. I would grant leave to amend the grounds of the application to accord with the new grounds.
The first ground of the application was that a miscarriage of justice resulted from the admission into evidence of the diary entries and spreadsheet made by Lee-Archer and the diary entries made by Compasso.
It appears that the jury did rely on the information contained in those documents for the purpose of determining whether the applicant was guilty of particular counts, for they found the applicant guilty of counts where the oral evidence of the witnesses did not establish the applicant’s guilt. For example, the only evidence to establish count 61 was an entry in Lee-Archer’s diary recording “$1,000 plants“. Lee-Archer said in evidence that he was informed of the transaction by Ashley Lyall. Lyall did not give any direct evidence of the transaction. He said that he recorded refunds as requested by the applicant in a diary, which he could not now find. Lyall only said in general terms that, being requested by the applicant to do so, he pressed the refund button on the till and gave the receipt and money to the applicant.
The documents were admitted pursuant to the provisions of s.55 of the Evidence Act 1958 (“The Act”), which provides, so far as is relevant:
“(2)In any criminal proceeding where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall be admissible as evidence of that fact if the document is, or forms part of, a record relating to any business and made in the course of that business from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.
(3)Sub-section (2) does not make a statement contained in a document admissible in any criminal proceeding if the statement was made in the course of or for the purposes of-
(a)the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceeding;
(b)an investigation which led to the discovery of facts constituting or being constituents of the alleged offence;
(c)the preparation of a defence to a charge for any offence; or
(d)the preparation of the case for the prosecution in respect of any offence.
(9)The court may in its discretion reject any statement or defer the admission of and subsequently reject any statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be then admitted or, as the case requires, should be admitted at all.”
The terms “business” and “document” are defined in s.3 (1) of the Act. It was not contested that the nursery conducted on the Waverley campus was a business for the purposes of the Act and that the diaries and spreadsheet were documents within the meaning of the Act.
Counsel for the applicant submitted that a distinction was drawn in the section between documents and statements contained in documents. The latter were admissible, and the former were not. Counsel criticised the trial judge for ruling that the documents were admissible. While the section does draw the distinction relied upon by counsel, I do not consider the reference by the trial judge to documents constituted a material error. The parties debated and the jury clearly relied upon the contents of the diaries and the spreadsheet.
The main thrust of the applicant’s objection to the admissibility of the statements contained in the documents was that the documents were not records relating to a business and had not been made in the course of the business. The documents, it was said, were private records of Lee-Archer and Compasso and were not made in the ordinary course of the Institute’s business for they were made by suspicious employees anxious to record the facts in order to avoid blame. It was also contended, albeit faintly, that the statements were rendered inadmissible by the provisions of sub-section (3).
In my opinion a document will be “a record relating to any business” even if one of the motives of the person making the record is to serve his own interests. All that the phrase requires is that the document records matters pertaining to a business. Further, I think that the records in the present case were made in the course of business conducted by the Institute. The fact that the documents were created in part to protect Lee-Archer and Compasso did not deprive them of the quality of documents made in the course of the business. Lee-Archer and Compasso were the operators of the tills in the nursery and in the ordinary course of their employment were responsible for the money that flowed to and from and the records generated by the tills. To record, in the context of their duties as the till operators, transactions involving the use of the tills in my view was to create a record in the course of the business.
One definition of “course” in the Oxford English Dictionary is “habitual or ordinary manner of procedure; way, custom, practice”. More pertinent, in my view, is the definition of “in the course of”, which is: “in the process of, during the progress of”. The records of Lee-Archer and Compasso were made in the process or during the progress of their conduct of the nursery business of the Institute.
Section 55 may be contrasted with s.58A of the Act, which defines “book of account” as the documents used in “the ordinary course” of a business for recording the financial transactions of the business.[1] I do not regard the word “ordinary” as otiose. The diaries and spreadsheets were not documents, such as a sales ledger or a cash book that were one of the standard accounting books of the business established as part of a permanent system. In my view, however, s.55 does not require proof of a standard procedure.
[1]See Re. Bradford Roofing Industries Pty. Ltd. [1996] 1 N.S.W.R. 674; Duncan Davis Pty. Ltd. v. Hurstbridge Abattoirs (Aust.) Pty. Ltd. [1995] 1 V.R 279 at 286 per Ashley, J.
In my opinion the diaries and the spreadsheet were not made in the course or for the purpose of an investigation of the applicant’s use of the refund button and removal of money from the tills. The compilers of the documents were aware of the facts. Their purpose was to create a record to protect themselves from blame.
A related ground of the application was the trial judge failed to exercise the discretion conferred upon him by s. 55 (9) to reject the statements contained in the diaries and spreadsheet. Counsel for the applicant at trial invoked the discretion, but did not put forward any reason for its exercise save to say that certain of the statements were hearsay. In the course of his ruling the trial judge dealt with the submission that some of the statements were hearsay by reference to the requirements of s. 55(2), which he held were met, and which clearly countenanced the creation of records recording hearsay material.[2] In my opinion his Honour effectively rejected the appeal to s. 55(9). It was not necessary for him to refer to the sub-section in terms.
[2]Cf. R. v. Smart [1983] 1 VR 265 at 292 per Young, C.J., McInerney and Gobbo, JJ.
The remaining ground of the application was as follows:
“2. The trial miscarried as a result of the trial judge –
(a)failing to give any, or any sufficient, direction that each count be considered separately;
(b)failing to give any, or any adequate, direction as to the use to be made of similar fact evidence;
(c)in misdirecting that, in deciding upon the elements of dishonesty and intention to permanently deprive, the jury could take into account –
(i)‘the individual and accumulated funds taken by the [applicant]’;
(ii)‘the frequency with which it is alleged that the money was taken’;
(iii)‘the [applicant’s] claim that refunds were recorded to obtain change for the tills, when it appears on the evidence, I suggest, it is a matter for you that the ‘no sale’ button could have been used to achieve the same purpose’;
(d)in failing to give any, or any sufficient, direction as to consciousness of guilt reasoning with respect to the judges remarks that the jury could take into account ‘the [applicant’s] claim that refunds were recorded to obtain change for the tills, when it appears on the evidence, I suggest, is a matter for you that the ‘no sale’ could have been used to achieve the same purpose’; and
(e)in failing to give any, or any sufficient warning against propensity reasoning.”
Counsel for the applicant relied upon the following passage from the trial judge’s charge to the jury:-
“The Crown here brings 68 different charges or counts, as they are technically called, against the accused. They are the balance of counts on one presentment, as the formal document accusing him is called. That is done for convenience. It would obviously be highly inconvenient and expensive to hold a separate trial before a separate judge and jury on each count. However, you must not allow convenience to take the place of justice. The accused is entitled, as is the Crown, to a separate consideration by you of each crime charged. It may be that the same logic applies to two or more of them and as a matter of reason that logic will dictate the verdict in each such count. But it would be quite wrong to say that simply because you find the accused guilty or not guilty of one count, that he must be guilty or not guilty, as the case may be, of another.
I shall shortly direct you that there are three elements in the offence of theft, and I shall direct you in more detail that those three elements are, firstly, that the accused took property belonging to the Holmesglen Institute of TAFE, secondly, that he did so dishonestly and, thirdly, that he did so with an intention of permanently depriving the Holmesglen Institute of TAFE of that property. There are three separate elements.
With respect to the first element, that the accused took the money, you are to consider the evidence as to taking as to each count separately. It would be wrong for you to reason that the accused took the money alleged to be stolen in one count, that he is therefore more likely to have taken the money alleged to be stolen in another count. However, in relation to the two remaining elements, those are that he did so dishonestly and that he intended to permanently deprive the owner, the Holmesglen Institute of TAFE of that money, you can, if you so choose, consider all the evidence before you on the remaining counts, and take into account, firstly, the individual and accumulated funds allegedly taken by the accused.
I note that in December 2000 the charges allege that the accused, in that month, took $24,740. That is a total of the amounts alleged that in December the accused took. The counts in January total $12,100 and the remaining counts for February, and that covers 1 February to 19 February, amount to $6100. So there is an allegation that the accused took a total of $42,940. In that connection, it is suggested that the money in the floats which has recently been referred to by defence counsel, was perhaps $1000 or $2000.
So the first item that I suggested that if you choose you can take into account is the individual and accumulated funds allegedly taken by the accused. The second matter that you can take into account in this connection, if you choose to do so, is the frequency with which it is alleged that the money was taken and, thirdly, the accused’s claim that some refunds were recorded to obtain change for the tills, when it appears on the evidence, I suggest, it is matter for you that the “no sale” button could have been used to achieve the same purpose.
I repeat that those considerations are only relevant to the prosecution allegations as to the state of mind or intention of the accused that the prosecution alleges he had when he allegedly carried out the transactions. Otherwise, as I have already directed you, each count must be considered separately in the light of the evidence which applies to it and you must ask yourselves, as to each count separately, am I satisfied beyond reasonable doubt by the evidence that he is guilty of this crime. If that question is answered, in your judgment, you should find the accused guilty of that count, if it is answered no, you should find the accused not guilty of it.”
The main thrust of the applicant’s argument was that the trial judge erred in suggesting that similar fact reasoning was appropriate in determining whether the applicant acted dishonestly with intent to permanently deprive the Institute of the money. Counsel for the applicant submitted that the trial judge erred in telling the jury that they could take a global approach to “the individual and accumulated funds allegedly taken” and to “the frequency with which it is alleged that the money was taken”. The jury should have been warned against propensity reasoning.
In my opinion it was open to the jury to take into account the amounts involved in the refund transactions and the frequency of those transactions in determining whether the applicant acted dishonestly and with the requisite intent to constitute theft. The amounts and the number of the refunds could be used to negative the applicant’s explanation that he caused the refund button to be used for the purpose of obtaining change for the tills. In the context of the invitation to consider the amount and frequency of the refunds, the jury were enjoined in clear terms to consider each count separately in the light of the evidence applicable to that count. In my opinion there was no real risk that the jury might have reasoned that because the applicant took money from the till dishonestly on one occasion, he was the sort of person who was likely to have acted dishonestly on another occasion.
Counsel for the applicant took no exception to this aspect of the charge. Further, prior to the charge the trial judge said to counsel for the applicant that “. . . the quantity of funds taken, the frequency with which they were taken and the fact that it is entered as a refund, are matters that could be taken into account in relation to the issue of dishonesty”, to which counsel for the applicant responded by saying, “Yes”.
Counsel for the applicant described the trial judge’s comment as to the applicant’s failure to use the no sale button as “particularly pernicious”. The effect of using the no sale button in conjunction with taking money from the till would have been to create a shortfall between the amount recorded on the till roll and the amount of money in the till unless money was returned to the till. Use of the refund button, on the other hand, would not create such a shortfall. In my view that was a matter the jury could take into account if they chose to do so. The trial judge made it clear that his statement was only a comment; it was for the jury to determine whether the evidence was persuasive.
For the foregoing reasons I would refuse the application for leave to appeal against conviction.
The grounds of the application for leave to appeal against sentence were as follows:
“1.The sentences imposed were manifestly excessive in relation to the sentence imposed on each individual count and in the aggregate.
2.The Learned Sentencing Judge erred in that he imposed excessive cumulation as between the three groups of counts.
3.The Learned Sentencing Judge erred in that he gave insufficient weight to the matters put in mitigation, in particular, the Learned Sentencing Judge failed to give sufficient weight to –
(a) the Applicant’s lack of prior convictions;
(b) the Applicant’s previous and subsequent good character;
(c) the Applicant’s outstanding work history;
(d)the consequences on the Applicant financially and emotionally and psychologically of his loss of employment;
(e)the Applicant’s health;
(f)the shame and dishonour brought upon the Applicant
4.The Learned Sentencing Judge erred in that he took into account irrelevant considerations namely the need to convince the Applicant of his guilt.
5.The Learned Sentencing Judge erred in failing to give any or sufficient consideration to the Applicant’s bi-polar illness. The Learned Sentencing Judge in this regard erred in his finding that such a matter was not relied upon by the Applicant’s Counsel.
6.The Learned Sentencing Judge erred in finding that a term of imprisonment to be immediately served was necessary on the facts before him.
7.The Learned Sentencing Judge erred in downgrading his assessment of the prospects of rehabilitation on his postulation of a possible but unproven motive for the offending.
8.The Learned Sentencing Judge gave too much weight to the matters of specific and general deterrence.”
The argument mounted on behalf of the applicant pursuant to the first and second grounds in the first instance concentrated upon the individual sentences and the total cumulation as between the groups of sentences. The somewhat eccentric structure of the sentence led to the imposition of relatively heavy individual sentences on some counts which concerned small sums of money. While I am inclined to think it would have been more appropriate to have imposed lesser sentences on particular counts and then ordered a measure of cumulation, in my opinion the sentences viewed in the context of the total effective sentence do not bespeak error which should vitiate the exercise of the sentencing judge’s discretion.
Of more moment is the contention that the aggregate sentence of two years imprisonment was excessive.
The applicant, who is now 57 years old, was born in a displaced persons camp in Germany and was brought to Australia by his parents when he was two years old. The applicant’s childhood was marked by a certain degree of deprivation and hard work. The applicant married and had two sons. His marriage ended some eight years ago.
The applicant could rely upon a number of mitigating factors. He had no prior convictions and was able to lead a body of evidence as to his good character. Witnesses gave evidence as to his managerial skills and his generosity and apparent honesty. The applicant had an admirable work history. He qualified and worked as a teacher for ten years before obtaining administrative positions culminating in supervising the large Waverley campus of the Institute. The sentencing judge said that the applicant was seen as “an enthusiastic and effective manager”, although his Honour concluded on the basis of the evidence led in the trial that the applicant was “an arrogantly offensive manager”.[3] The offences resulted in the loss of the applicant’s employment and his dishonour. The applicant suffered from depression and a bi-polar disorder.
[3]Of course the applicant was not to be punished for defects in his character, but his Honour’s assessment does suggest that the applicant assumed his high position would protect him from others suspecting that he was a thief.
Nevertheless, the offences were serious, for they involved an abuse of the trust and power conferred upon the applicant by his employer. The effects upon the applicant of the revelation of his wrong doing were significant indeed. They were, however, attributable to the attainment of the authority and high standing that enabled the applicant to steal in the manner he did. Those effects should not distract attention from the need to deter others in like positions from committing similar crimes. The crimes were not spontaneous. They were brazen in that the applicant apparently thought he could act without being questioned. The crimes were deliberate and repeated. In the light of those factors, and notwithstanding the mitigating circumstances upon which counsel relied, I do not consider that the sentence was manifestly excessive.
The fourth ground of the application was founded upon the following passage in the sentencing remarks:
“Of greater importance than those considerations, is your regular abuse of your position of authority that resulted in your substantial monetary gain. The need to convince you that your conduct was wrongful and to discourage others from such conduct, in this case, is a more important consideration than the direct harm claimed to be caused by your action.”
It was submitted that the applicant was punished for pleading not guilty and giving evidence denying the charges.
The applicant was not to be punished for pleading not guilty or for the conduct of his defence at trial. I do not think that the sentencing judge made such an elementary error. Bracketed as it was with the reference to general deterrence, in my view his Honour’s remark is to be seen as a statement of the need for a sentence to effect personal deterrence.
A psychiatrist’s report was tendered in the course of the plea. In 1986 the psychiatrist diagnosed the applicant as suffering from depression. His condition responded to anti-depressant medication. The psychiatrist said that in 1997 the applicant developed a bi-polar mood disorder, which was treated by prescription of a mood stabiliser and an anti-depressant. The psychiatrist did not state what effect the applicant’s mental condition had upon him other than to say,
“Max takes maintenance medications that do not impair his ability to work and use the multiple skills that he has acquired over the many years he has worked as a teacher and in management. His illness at times may make him garrulous and difficult to relate to and with.”
The psychiatrist did not say that the applicant’s mental condition was a cause of the offences, merely that it may have contributed to the grandiosity and arrogance that accompanied the thefts.
Counsel for the applicant submitted that sentencing error was disclosed in the following remark by the sentencing judge:
“It is not submitted on your behalf that your present mental conditions brings you within the principles set out in R. v. Tsiaras.”[4]
Counsel for the applicant did refer to R. v. Tsiaras and said, “one problem of that Tsiaras formulation, that any incarceration with that illness was likely to have that incarceration more onerous than otherwise it might be”. Immediately before the impugned passage in the sentencing remarks his Honour recorded that the psychiatrist said that imprisonment would have an adverse effect on the applicant’s present depression. When the sentencing judges’ remarks are read as a whole, I think that his Honour was saying no more than that the applicant’s mental condition was not an element in his offending, and thus the need for general deterrence was not to be moderated, which was one aspect of the decision in R. v. Tsiaras.
[4][1996] 1 V.R. 398
Ground six was argued as part of the more general ground that the sentence was manifestly excessive. Ground eight was treated in the same manner.
Pursuant to ground 7 counsel for the applicant criticised the sentencing judge for saying:
“At the age of 57, you have not previously offended and you appear to have a reputation for honesty and proper, albeit at times aggressive, behaviour. The courts are reluctant to send an offender such as you directly to prison. I find it difficult to assess your rehabilitation prospects, largely because I have no explanation or cause for your offending. Your reward for stealing could have been no more than the stimulation of a wrongful exercise of power and ‘getting away with it’. If that is the case, you could offend again.”
The psychiatrist said that he was surprised by the charge of theft brought against the applicant. The psychiatrist said that the applicant had no reason to steal, “for he has been financially independent for the last 20 years and has never really had to work”. In the light of that evidence, in my view his Honour was not idly speculating as to the applicant’s motives, but drawing a legitimate inference which did bear upon the prospects of the applicant’s rehabilitation. The sentencing judge did not say that there were no such prospects, but only that a likely cause of the offending had a bearing upon that question. In my opinion this ground has not been established.
For the foregoing reasons I would refuse the application for leave to appeal against sentencing.
EAMES, J.A.:
I have had the advantage of reading in draft the judgment of Buchanan, J.A. and for the reasons given by his Honour I agree that the applications for leave to appeal against conviction and sentence should be dismissed.
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