R v Keen - [2019] SADC 189

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KEEN
Criminal Trial by Judge Alone
[2019] SADC 189
Reasons for the Verdicts of His Honour Judge McEwen
13 December 2019
CRIMINAL LAW - EVIDENCE - OPINION EVIDENCE - EXPERT OPINION
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - APPROPRIATION
The accused, Kerry Ann Keen is charged with one count Theft and one count of Aggravated Theft. Between July 2010 and May 2014, the accused as an employee of Secure Cash, was tasked with counting, recording and banking the money received from the various collections of the Adelaide Catholic Church Cathedral Parish. It is alleged that between 12 July 2010 and 18 May 2012, and between 19 May 2012 and 28 May 2014 there were general deficiencies of $100,100 and $200,000 respectively. It is alleged by the prosecution that these deficiencies were a result of the accused appropriating some of the money to herself, whilst carrying out her role.
Held:
1. Count 1, Theft - Guilty.
2. Count 2, Aggravated Theft - Guilty.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(i), referred to.

R v KEEN
[2019] SADC 189
Introduction

The accused Kerry Ann Keen is charged with, Theft and Aggravated Theft. Count 1 alleges a general deficiency of at least $100,000 between 12 July 2010 and 18 May 2012. Count 2 alleges a general deficiency of at least $200,000 between 19 May 2012 and 28 May 2014. The two charges allege an ongoing course of conduct throughout that period of almost four years. That alleged course of conduct is divided into two separate charges, to reflect an amendment to the Criminal Law Consolidation Act. From 19 May 2012, Theft by a Person in a Position of Trust, became Aggravated Theft.
The Charges
Throughout the four year period, the Adelaide Catholic Church Cathedral Parish, had an arrangement for the collection, counting, and banking of monies from collections at its various Churches. The Church engaged a company named Secure Cash to carry out this role. In broad terms, the arrangement was that following weekend masses, the collection monies would be picked up by Secure Cash on Monday and taken to its office. On the Tuesday, a Secure Cash employee would count the money, differentiating the amounts from the separate collections, of the various Parish masses. These figures were recorded and sent to the Church. The money was banked into a specific Secure Cash bank account, then transferred to the Church bank account. This was because the Church’s bank would not accept large amounts of coins.
The accused was employed by Secure Cash throughout the relevant period. One of her roles was to count the monies that had been collected from the Parish, and delivered to the Secure Cash office. She would record the figures for the various collections and subsequently bank the money. It is the prosecution case that in carrying out that role, she routinely appropriated some of the money to herself. In other words, the amount recorded by the accused in the count sheets, and banked, was not actually the true total of the money that had been collected from the Church, and placed in the Secure Cash safe, for her to count and bank. Rather, on the prosecution case, the accused regularly held back a portion of the collection proceeds for herself. Given the nature of the prosecution allegations, the prosecution rely upon the concept of general deficiency in the amounts alleged in each of the charges. On the prosecution case, it is not possible to specify precise amounts taken at individual collection counts, or a precise total over a period of time. This is because the amounts allegedly taken were not included in any documentation arising from the counts conducted by the accused. The routine did not include any prior count of the money by the Church. There was complete reliance upon the count done by the accused, and the figures she recorded and sent to the Church.
Legal Directions
The onus and burden of proving either charge rests on the prosecution. The accused is not required to prove or disprove anything. A verdict of guilty can only be brought in on either charge if the prosecution has proved that charge; and that means every ingredient of the charge; beyond reasonable doubt.
The accused comes into this court with a presumption of innocence in her favour. She is deemed to be innocent until the prosecution have proved the charge beyond reasonable doubt. If I am left with a reasonable doubt about her guilt of any charge, arising on the evidence, I must give her the benefit of that doubt and find her not guilty of that charge.
There are two charges on the Information. The entirety of the evidence in this trial is relevant to both of those charges, as both arise from what is said to be one overall ongoing enterprise by the accused to divert funds to herself. The division into two charges is due to the amendment to the Criminal Law Consolidation Act. However, I still need to turn my mind to each charge separately, and consider whether the prosecution has proved that charge beyond reasonable doubt.
A charge of theft entails a number of elements:
First, that the accused dealt with property.
Second, that she did so dishonestly. This means that her conduct was dishonest according to the standards of ordinary people, and that she knew this.
Third, that she dealt with the property without the owner’s consent.
Fourth, that at the time she dealt with the property she did so, intending either to permanently deprive the owner of the property, or to make a serious encroachment upon the owner’s proprietary rights.
For Count 2 there is also the alleged circumstance of aggravation to be proved beyond reasonable doubt: that she abused a position of trust in committing the offence.
In this trial the accused has exercised her right not to give evidence. She is entitled to make that choice and I must not draw any adverse inference from that. She is perfectly entitled to adopt that course and leave it for the prosecution to prove their case if they can. No adverse inference is to be drawn from her exercise of her right to silence.
The prosecution case is circumstantial. I shall return to the requisite directions on this topic.
I turn to a brief outline of the various topics of facts and circumstances which comprise the prosecution case.
Count Comparisons
The first topic of circumstantial evidence is what is referred to as ‘count comparisons’. The figures for the weekly counts for the Parish collections throughout the period 2010 – 2014 are in evidence, Exhibit P33. Detective Chewter has compiled a list from that raw data. That list conveniently sets out, chronologically, the weekly total collection count figures from 4 January 2010 to 29 December 2014. Of course, the primary evidence is the raw data in evidence, Exhibit P33. Without checking every single entry, I have satisfied myself that Detective Chewter’s list of weekly totals appears to be accurately drawn from the primary evidence. I accept Detective Chewter’s evidence to that effect. The list itself is not the evidence. It is a useful, and I accept accurate, tabulation of material that is in evidence. The evidence could have been highlighted by the witness taking the court to each of the dates. The aide memoire list is a convenient method of summarising the primary data from Exhibit P33.
During the relevant period reflected in the two charges, the accused was primarily the person who conducted the counts. However, there were occasions when others filled in for the accused and conducted counts in her absence, whilst she was overseas or otherwise unavailable. The prosecution suggests that a comparison of the weekly totals when the accused counted, with occasions when others conducted the counts, is instructive. The prosecution submit there is a consistent and marked disparity between the accused’s totals and the totals by the various other substitute counters.
As well as the chronologically listed totals drawn from Exhibit P33, Detective Chewter has drawn upon the travel documentation, and the agreed facts as to overseas trips, and a period of time when the accused had time off for surgery. His tabulation of that data enables easy comparison between the weekly totals submitted by the accused when she conducted the counts; the totals submitted by others who conducted counts in the accused’s absence; and a small number of occasions where there is no clear cut data as to who conducted the counts. Again, I accept the accuracy of Detective Chewter’s list, drawn from the primary data, which is in evidence. I shall return to the detail and the various arguments about this data. What is very plain is that there is a marked disparity between the weekly totals submitted by the accused and the weekly totals submitted by other counters.
The prosecution seek to rely on what is said to be the disparity,[1] for two purposes.
[1] During trial the words disparity and discrepancy were used interchangeably. I will reserve the word ‘discrepancy’ for comparisons with a specific known figure. I use the word disparity to refer to an apparent lack of parity, in circumstances where the (alleged) true figure cannot be known. I consider this accords with the dictionary definitions of the two words.
Firstly, as a piece of circumstantial evidence suggesting that the accused was consistently diverting some of the money she counted, resulting in a lower total than when others counted. This is one of the strands of circumstantial evidence which the prosecution rely upon for the conclusion that the accused was routinely understating the true figure, and diverting the difference to herself.
Secondly, the prosecution also seek to rely upon the ongoing disparities to come up with a general deficiency. In other words, to quantify the amount that is alleged to have been diverted by the accused between 4 July 2010 and 28 May 2014.
As noted, I find the tables prepared by Detective Chewter a convenient and useful summary of the primary evidence, which extracts and displays the count disparities. However, to suggest there is sufficient certainly in the summaries and tables prepared by Detective Chewter to formulate an accurate figure for the general deficiency is another matter. His calculations rely upon a number of assumptions, and premises, and a process of averaging and extrapolating. I note Detective Chewter’s evidence in this regard:[2]
Q.This is a fairly broad rudimentary process, is it not.
A. Yes.
Q.Even you don't suggest that it's going to tell me things down to the last dollar and cents.
A.No, not by any way, shape or form.
[2] T491.32 -.37.
I shall return to these two separate, proposed uses of the comparative count evidence, when I come to my analysis of the evidence.
Income and Expenditure
There is evidence, including agreed facts, relating to the income and expenditure, of the accused and her husband, throughout the relevant period. The prosecution case, quite apart from any expert forensic analysis, is that a simple comparison of aspects of the accused’s expenditure, with her and or her husband’s income, point to unexplained wealth, during the time that she was engaged by Secure Cash to conduct the counts.
According to the Agreed Facts,[3] the declared taxable income of the accused and her husband was as follows:
[3] Exhibit P7, para 8.

Financial Year Kerry Keen John Keen Total Taxable Income

2008-2009 $29,020 $38,385 $67,405

2009-2010 $27,407 $38,385 $65,792

2010-2011 $26,708 $39,654 $66,362

2011-2012 $24,850 $69,302 $94,152

2012-2013 $44,562 $63,080 $107,642

2013-2014 $38,962 $59,698 $98,660

The Agreed Facts also include the accused’s domestic and international air travel, of the accused, and family members, from 2009 to 2014. In the nine-year period 2000 – 2009 only one overseas trip is recorded, namely a nine-day trip to Hong Kong. During the period 2010 to 2014, the accused made numerous overseas and interstate trips. On a number of overseas trips she was accompanied by her husband, or daughter, or both. Her travel included the following:
In 2010 the accused travelled to New Zealand, and England; and two trips to Melbourne.
In 2011 trips to the USA, Fiji, and England, as well as five interstate trips.
In 2012 trips to China, the USA, Fiji, New Zealand/Tahiti, and a second trip to the USA. Also 10 interstate trips.
In 2013 trips to England, Fiji, USA, a second trip to USA, and a second trip to Fiji. Also eight interstate trips.
In 2014 trips to New Zealand and Tahiti, as well as eight interstate trips. At the time of her arrest the accused was scheduled to travel to Europe during July/August 2014 and had booked a Bahamas cruise in December 2014.
As will be seen, the evidence discloses expenditure of $409,000 on travel and accommodation during the relevant period.
The prosecution submit that, apart from any expert analysis, the bare comparison of this level of expenditure on travel, with the family income, points to some other source of funds. In other words, as a matter of common sense and life experience, the extent of overseas travel is plainly irreconcilable with their declared income.
The Forensic Accounting Evidence
Sian Hamblin is a forensic accountant with SAPOL. She holds a Bachelor in Commerce and Accounting and is a Chartered Accountant. She worked as an auditor at Ernst & Young for four years. She has been a forensic accountant with SAPOL for 10 years.
Ms Hamblin carried out a financial analysis of the accused and her husband relating to the period 1 January 2010 to 30 June 2014.[4] Ms Hamblin was provided with, or obtained, a large number of documents for that period, including bank statements, bank vouchers, invoices, receipts, tickets, itineraries, and other financial records. These are listed at Tab 1 of Exhibit P9, and comprise over 700 individual documents. Ms Hamblin then analysed that material utilising an accounting software program.
[4] A slightly broader span of dates than the period reflected in the two charges.
An overall conclusion that Ms Hamblin arrived at from the examination and analysis of those financial records is that there was a shortfall between available funds, and expenditure, for that period. This shortfall was $340,999. Some assumptions and allowances were built into that process to ensure that this was a conservative figure. Ms Hamblin’s figures for various components of her analysis of the accused and her husband’s finances, for this four-and-a-half-year period, are conveniently depicted in a pie chart at Tab 2 of Exhibit P9. With reference to that pie chart, Ms Hamblin explained how she arrived at her conclusion of a $340,999 shortfall in available funds from identified sources, compared to documented expenditure.
Apart from that overall disparity between documented available funds and documented expenditure, Ms Hamblin explained to the court other aspects of her detailed analysis of that four-and-a-half-year period.
Firstly, her analysis was of transactions for which there were records available. Any undocumented cash payments would not feature in her analysis. In other words, any undocumented cash payments during the relevant period would increase the $340,999 figure.
Another aspect of the conservative assumptions can be seen in the pie chart segment showing $68,532 unidentified deposits. The available documentation shows that amount comprises deposits into a bank account, but Ms Hamblin is unable to identify the source of the deposits. Notwithstanding that, she has not included that figure in the $340,999 unexplained wealth.
As well as showing salary and wages to the accused and her husband, Ms Hamblin has attributed amounts to funds available from gambling, funds from third parties, and other identified deposits. In her evidence she explained the basis of the figures she attributes to these.
Apart from the unexplained wealth calculation, another feature of Ms Hamblin’s analysis is the amount of funds that were banked as cash deposits. The calculation of $340,000 unexplained wealth, takes into account $328,000 cash deposits into their accounts. Ms Hamblin was not able to obtain bank vouchers for all of those cash deposits, but has obtained and examined bank vouchers for $269,000 of the cash deposits. Of that $269,000 vouchered cash deposits, $15,272.10 of it was made up in coins. This included $4,976.85 in coins banked on 30 April 2014; then $1,973.35 in coins banked on 21 May 2014.
Those vouchers also reveal that in the four and half year period, $92,000 was deposited into their bank accounts in $100 notes.
According to Ms Hamblin, the total documented expenditure of the accused and her husband during the four-and-a-half-year period was $910,574. She has set out in a pie chart at Tab 9 of Exhibit P9 the major components of that expenditure. The documents available to Ms Hamblin reveal living expenses of $261,000; travel and accommodation of $409,000; and retail and department stores of $97,000. Those figures arise from her detailed examination of invoices and receipts, and the totalling up of the individual expenditures in each category over that period.
The breakdown of the $97,000 spent on retail and department stores includes $26,716.78 spent on Louis Vuitton goods.
When the police searched the accused’s home following her arrest, they located numerous Louis Vuitton products including handbags, wallets, shoes, a purse and a scarf.
I now turn to the uncharged discreditable conduct evidence.[5] At this stage I am simply reciting and briefly summarising the various components of the prosecution’s circumstantial case. Later in this judgment I deal with the permissible and impermissible uses of that discreditable conduct evidence.
[5] See Ruling dated 18 January 2019.
Pre-counts
Trevor McAuliffe is the Finance Officer for the Catholic Church. He holds a TAFE qualification and has been a member of the Institute of Public Accountants for 40 years. He was previously state manager for Rural Press Ltd.
As outlined earlier in this judgment, the arrangement between the Catholic Church and Secure Cash was that the money was collected by Secure Cash without anyone from the Church having counted it. However, in May 2014, following discussions between the Church and police, Mr McAuliffe, on six occasions, conducted pre-counts of the collection monies from the St Francis Xavier Cathedral.[6] These six occasions were at weekly intervals from 4 June 2014 to 9 July 2017. There was also a seventh pre-count, prior to the accused’s last count of Church funds on15 July 2014. However for reasons that follow, I shall deal with that seventh pre-count separately.
[6] Strictly, the pre-counts were of the notes only, not the coins.
As to the six pre-counts I am currently dealing with, it is an agreed fact that the accused conducted the count on four of those occasions. As to the other two, it was not disputed at trial that she also conducted those counts. Figures for the counts were on her computer. I find she conducted all six of these counts.
On each of these six occasions, there were discrepancies between the counted amount as shown in the spreadsheets provided to the Church by the accused; compared to the amount pre-counted by the Church.[7] The discrepancies were $745, $1,190, $1,535, $1,365, $1,640 and $1,600.
[7] These comparisons are for notes only, as that is all that the Church pre-counted.
CCTV Surveillance
The last count carried out by the accused was on Tuesday 15 July 2014. Again, for this collection, Trevor McAuliffe had carried out a pre-count. He had also recorded serial numbers of some of the notes.[8]
[8] He only recorded serial numbers for the St Francis Xavier portion of the collections.

Prior to 15 July, police, with the permission of Secure Cash management, installed CCTV cameras in the Secure Cash office.
On Tuesday 15 July 2014, whilst the accused carried out the count, Detectives Ashley Bridge and Chad Chewter were nearby, monitoring the CCTV vision. The CCTV footage for this occasion is Exhibit P27. That footage shows the accused placing money into her bag.
Arrest and Interview of Accused
When the accused and her daughter exited the Secure Cash premises, they were spoken to by Detectives Chewter and Bridge. During this initial conversation outside the Secure Cash office, the accused was arrested and searched. She was then taken to her home at Glenelg where the home was searched and a detailed interview was conducted on video. The accused denied any theft of Catholic Church money.
In the accused’s handbag, police located $3,100 in cash notes. When these were compared to the serial numbers of the notes that had been pre-counted and recorded by Trevor McAuliffe, there was a match of serial numbers of: 14 of the $50 notes ($700); and 43 of the $20 notes ($860). In total, $1,560 of the $3,100 had matching serial numbers. As noted earlier: Mr McAuliffe had not noted the serial numbers of all the banknotes; Only those from the St Francis Xavier Parish.
During the initial conversation outside the Secure Cash office, the accused told police that the money they had found in her handbag ‘goes into another account. It goes into one of the Church accounts’.
During the detailed interview she told police:[9]
[9] Exhibit P29, p14; p17; p18-19.
QOkay, so which of that money would be yours?
AThe money in my purse was mine
QThe money in your purse is yours, okay
AMhmmm. The money in the bag, I still had to record onto a sheet to be banked
QOkay, why would you take that off the premises?
AGenerally I wouldn’t but I was in a hurry to go home
QMhmm
AAnd so I just brought it home to be recorded and then to be banked
QOkay, how would that have been banked?
AIn an express deposit bag
…
QOkay, did Chloe know you were taking this money off site? Cause I understand she was there today
AUm I did tell Chloe that I, because Chloe, I was meant to away on Monday but I assume I’m now not um so I was showing her what to do and I was explaining to her what I was doing with that
QOkay
ASo please keep Chloe out of this, this is nothing to do with Chloe?
QOkay, so why was Chloe there with you today?
ABut yes I did, I was saying to Chloe that it gets banked into an account
QYep
ASo
QOkay, so why was Chloe there with you today?
AUm because I was meant to be going away on Monday so Chloe was going to be doing the counting while I was away
QOkay sure alright, so you were basically teaching Chloe how to count the money and use the counting machines there?
AThat’s right
…
QOkay alright, so you’ve said you were in a hurry to
AMhmmm
QTo come home, what was that?
AJust didn’t want to stay there anymore
QOkay
AJust ready to come home
QMhmmm alright so this money here you’re saying that you’ve taken from the premises for the purpose of counting and banking from home
ABanking mhmmm
QEssentially, where was that money prior to being in your bag?
AIn the collection
QIn the collection?
AMhmmm
QOkay so when you have finished counting for the day, I mean what did you do with his money as opposed to the other money where it was put into the safe?
ASo that would’ve been a special collection so I would’ve written up a sheet like that for a special collection and banked the money
QYep okay so the original bag that this money was in, which bag was that?
AIt was in one of the calico bags I think
QIn one of the calico bags?
AYeah
QOkay, so do you know which parish it’s from?
AI don’t there was, I could only suspect that perhaps it was um there was three Saint Mary’s bags
QMhmmm alright, so you can’t say which parish or which bag that money’s come from
AMhmmm
QHow do you know which account that money goes into?
ABecause there’s only two accounts that the money goes into
When asked about the discrepancies from the pre-counts over the previous weeks, the accused said she could not explain those but that she was definitely not stealing money.
Later in the interview the accused admitted that there was also $160 in her purse which came from the Church money. She told police she intended to give that to Chloe for helping her that day and that she would have replaced it.
Circumstantial Evidence: Legal Directions
The prosecution case in this trial relies entirely upon circumstantial evidence.[10] The prosecution invites the court to infer from the combined force of the proven facts that the accused is guilty of each count. Before I could convict on either count I would need to be satisfied that the only rational inference from the proven facts is that the accused is guilty of that charge. The prosecution need to exclude any rational inference consistent with innocence. If, upon the entirety of the proven facts and circumstances, there remains a rational explanation consistent with innocence, then that charge will not have been proved. To convict upon either count I need to be satisfied that the accused’s guilt is the only rational inference from the factual circumstances I find proved.
[10] The direct evidence of the Detectives monitoring the CCTV vision of the last count, is uncharged conduct.
The Prosecution Case
The prosecution point to the combined force of the various strands of circumstantial evidence, as leading to the conclusion of guilt, beyond reasonable doubt upon each charge. I have already briefly summarised the various strands or components of the prosecution’s circumstantial case.
Apart from proof of guilt on each charge, the prosecution also seek to rely upon the various strands of circumstantial evidence to prove the amount of the general deficiency alleged in each charge. As already noted, the amount of the general deficiency is not a material particular of the charge. Proof beyond reasonable doubt that the accused stole any amount during the relevant period, would be sufficient to prove the charge. However, the prosecution seek to establish the amounts specified on the Information for each charge.
The Defence Case
In my consideration of the defence case as put at trial, I bear steadfastly in mind that it is for the prosecution to prove its case beyond reasonable doubt. The defence carry no onus to prove or disprove anything.
The defence case is conveniently summarised by Mr Fowler-Walker in his closing address:[11]
There are two main themes to the defence case. The first is that [if] there is a general deficiency, the prosecution cannot exclude, as a reasonable possibility, that it was Mr Hogg or Mr Hogg with Darren and Bethany Bacchus who took the money and set up Ms Keen by only taking it when she was counting. Alternatively, the prosecution cannot prove a general deficiency based upon the evidence provided in this trial because the charts are not exhibits and they are not evidence in this trial. No witness was called to introduce the evidence and walk us through it as there being a general deficiency.
[11] T516.17 – 29.
The reference to the charts is a reference to the spreadsheet charts as prepared by Detective Chewter; and a further version referred to by the prosecution, in closing submissions.
Mr Fowler-Walker, in his address, then raised a number of criticisms of the prosecution’s circumstantial case. I am mindful that it is the combined force of the various strands of the circumstantial case that is relied upon. Nevertheless, the various specific criticisms and issues raised by Mr Fowler-Walker are potentially relevant to a proper critical evaluation of the prosecution case. I accordingly turn to a consideration of those criticisms and issues.
First, the submission that David Hogg also had access to the collection monies, as he was the person who collected them from the Parish and deposited them in the Secure Cash safe. Mr Fowler-Walker correctly submits that it would have been possible for Mr Hogg to access the collection funds before they were ever counted by the accused. For a good deal of the relevant period there was really nothing by way of security of the funds between leaving the Parish and being counted. According to the evidence they were in various types of bags and other containers including ice-cream containers and pencil cases. Moreover, Mr Fowler-Walker correctly submits that even when tamper-proof bags were introduced, the Church did not keep a record of the tamper-proof tag that was attached to each bag. Therefore, this procedure did not rule out someone in Mr Hogg’s position simply accessing the funds then applying a fresh tag. I accept the submission that, in the circumstances here, the manner in which the tamper-proof bags were used, was not a foolproof security system. If the security said to be afforded by the introduction of tamper-proof tags, was a significant aspect of the prosecution case, my acceptance of Mr Fowler-Walker’s submission in this regard, would pose a difficulty for the prosecution. However, I have outlined the various strands of the prosecution case above. None of them rely upon the tamper-proof tags, which, on the evidence, were introduced very late in the accused’s tenure.
Second, Mr Fowler-Walker’s submission, noted earlier, as to the charts. As I have outlined earlier in this judgment, these are no more than a convenient aide to the evidence of Detective Chewter, and the submissions. They amount to no more than a convenient collation of the data which is already in evidence. They are a convenient and useful chronological listing of those totals alongside the data as to the accused absences from counting, drawn from the reports and the agreed facts. As I have outlined above, in this regard I rely upon the primary evidence, together with the evidence of Detective Chewter, which I accept, that his tables and charts accurately reflect the primary evidence.
I do accept Mr Fowler-Walker’s submission that the evidence of Detective Chewter, assisted as it is by the charts, is incapable in itself of proving the general deficiency. Detective Chewter acknowledges this in the passage quoted earlier in this judgment. I shall return to that topic.
Third, Mr Fowler-Walker correctly points out that the evidence does not prove the specific commencement date of the accused’s employment with Secure Cash. Accordingly, the discrepancies noted in the Salisbury Parish accounts for June and July 2010 cannot be attributed to the accused. However, Mr Hogg was already in his role during that period of time. This underpins the defence submission that throughout the entire period for which there is any suggestion or allegation of monies going missing, Mr Hogg also had access to the collection money.
Fourth, Mr Fowler-Walker submits that if Mr Hogg was to embark upon an enterprise of systematically taking money from the collections he would need a ‘fall person’. This would be so, irrespective of whether Mr Hogg was operating with or without the knowledge of Darren and Bethany Bacchus, his employers at Secure Cash. Accordingly, the defence submit that there is a specific rational hypothesis consistent with the accused’s innocence, in that it was Mr Hogg who diverted the money prior to the accused having access to it. This hypothesis would entail Mr Hogg only taking money when the accused was counting, and hence the higher totals when there were substitute counters.
Fifth, Mr Fowler-Walker submits that the prosecution has not proved a precise deficiency, or even a specific deficiency range, over the relevant period. On any view of the figures, the percentages vary somewhat. Mr Fowler-Walker submits that this points to Mr Hogg, rather than the accused, in that it is suggestive of someone ‘shoving his hand in the bag’ rather than someone systematically taking an amount.
This does not purport to be a comprehensive summary of all the points made by defence. I have carefully considered the defence address in its totality.
Witnesses
I do not propose to individually deal with each of the witnesses called. A good deal of the factual basis of the prosecution case is not challenged per se. The major issue is what inferences arise from the proven facts.
However, I do need to deal with some of the witnesses.
I accept the evidence of Detective Chewter, drawn from the primary data in evidence and compiled into the list, as to the weekly totals of the counting figures. These show a marked disparity between the counts conducted by the accused and counts conducted by others. Whilst that disparity is not a consistent precise percentage of the total, it is consistently in the vicinity of the 30% of the total. It has not been suggested or proved that it is a precisely consistent percentage; or that it is always within specific parameters. In rudimentary terms it is in the vicinity of 30%.
I found the forensic accountant, Sian Hamblin, an impressive witness. The process she carried out was a very thorough and comprehensive one. It has been fully documented, and all her materials and processes are available for checking and challenge. She came across as a thorough and careful witness. She has built in conservative assumptions. She was certainly not shaken in cross-examination. Rather it was a matter of her explaining various aspects of the process and her conclusions. She did this competently and persuasively. I accept her evidence, including the conservative conclusions she has arrived at, following a very thorough analysis.
Uncharged Discreditable Conduct Evidence
The uncharged discreditable conduct comprises the following:
·Evidence of discrepancies between the accused’s count’s of the collection monies, and Mr McAuliffe’s pre-counts, for the six weeks prior to 15 July 2014.
·Evidence of the accused’s conduct during the collection count on 15 July 2014 count. This includes CCTV of the accused placing money in her handbag, and the police searching her and finding money including notes matching the serial numbers of pre-counted notes;
The potential permissible use of this uncharged conduct is that it is proffered by the prosecution as pointing to a system of the accused withholding portion of the monies counted. If I accept that this evidence establishes of a system of this nature, this can be permissibly used as a piece of circumstantial evidence:
·Tending to rebut innocent explanations for count disparities;
·Probative of dishonest intent;
·Supporting the various other strands of the overall circumstantial case, that during the preceding four years, the accused was systematically withholding a portion of the collection monies;
·Supporting the prosecution analysis of quantum of the general deficiency. In other words, as well as being probative of the ongoing system or enterprise; also providing some evidence of quantum of how much was being withheld; and
·Rebutting the defence hypothesis that the accused was set up, to cover the fact that David Hogg, or others, were stealing part of the collection money.
These are the potential permissible uses of the discreditable conduct evidence. The permissible uses are potential. Before using any of the discreditable conduct, I would first need to find, as a fact, that the discreditable conduct occurred. I would then need to consider whether the proven discreditable conduct does, in the overall circumstances, have any one or more of the permissible uses.
It would be impermissible for me to reason along the lines that the accused stole money on these other occasions, so I will convict her of the charges. It would be impermissible for me to be influenced by her bad character as disclosed by these subsequent occasions of taking Church money; If that is what I find she did. I need to strictly confine the use of the evidence to one or more of the permissible uses as outlined. I must not in any way infer guilt on the basis that the discreditable conduct suggests that she is the sort of person who would commit these offences.
The directions I have just outlined, as to the permissible and impermissible uses of the discreditable conduct evidence, apply to each count on the Information.
Analysis and Conclusions
In applying the legal directions I have set out, for a circumstantial case, I need to have regard to the composite or combined force of those items of circumstantial evidence that I find proved. Without losing sight of this overall, composite process, I shall briefly examine and analyse the specific components of it; and consider the defence criticisms.
First, the count comparison evidence is telling. There is a clear correspondence between identified occasions when the accused definitely did not do the count; with a marked increase in the total counted and recorded. The pattern of the totals rising significantly when the accused is known to be overseas, or otherwise not able to count, is clear and distinctive. So much so, that the count figures could be used to indicate when the accused was absent.
Second, as a matter of common sense and experience, the amount of overseas and interstate travel, and the expenditure on travel, is impossible to reconcile with the evidence as to the family income. There were questions to witnesses suggesting cash payments from Secure Cash, but there is no evidence of these. In any event, cash or bonus payments; family loans or gifts; or gambling wins would not plausibly account for the excess of expenditure over income, in this case.
Third, following on from the second topic, the forensic financial analysis evidence, which I accept, establishes a conservative figure of $340,000 in unexplained funds over the four and a half years. As Ms Hamblin explained, the figure would be significantly higher were it not for a series of appropriate and proper assumptions that she has made in the accused’s favour. One simple example is that this figure makes no account for undocumented cash expenditure throughout the four year period. She also made allowances for money from other sources, including family and gambling.
A conservatively calculated disparity, between income and expenditure, of $340,000, over four years, is a significant strand of circumstantial evidence.
Fourth, the breakdown of some of that expenditure, points to a lavish lifestyle totally at odds with the income of the accused and her husband: This includes travel, expensive consumer goods and gambling. I am mindful that people prioritise their expenditure according to their own needs and desires. I am also mindful that this topic overlaps with other topics already noted. It is relevant, but in an overall assessment of the circumstantial case, it is of limited significance. It is a strand, but not a particularly strong one. The amount of unexplained expenditure is more compelling than the nature of it.
Fifth, there is the depositing of $328,000 in cash, into their bank accounts. This included very large coin deposits on occasions. This is highly consistent with the prosecution case of a system of withholding portions of the collection proceeds. It is difficult to see any other rational or plausible source of so many deposits in notes, and especially, coins. This is not a case, for instance, where the accused operated a business with turnover in notes and coins.
I note the defence submission that proving a disparity whenever the accused counted the money leaves open the hypothesis that she was being set up. If David Hogg was setting her up to cover his own stealing, he would only take money when she was counting,

If the prosecution case was limited to the disparity between the counts by the accused, and the counts by others, this hypothesis may potentially be plausible. In other words, proving money is missing, does not necessarily of itself, point exclusively to the accused. Mr Hogg also had access to the money. But the prosecution case is not limited to the disparities between the accused and other counters. Other components of the prosecution case relate specifically to the accused: the travel, unexplained wealth, luxury goods, cash and coin deposits. Those components of the prosecution circumstantial case point to the inferences not only that money was being taken; but also that the accused was the person taking it.
Sixthly, there is the discreditable conduct evidence. I find that for the six pre-count occasions, there were significant discrepancies[12] as outlined by Mr McAuliffe. I find the accused conducted those six counts. I make those findings beyond reasonable doubt. In relation to the discreditable conduct evidence, when I refer to making a finding, or to a fact being established, I mean beyond reasonable doubt.
[12] For those counts where the money had been pre-counted, the accused’s figures can be described as discrepancies, not mere disparities; Because there is evidence of what the amount was.
As Mr Fowler-Walker submits, Mr Hogg also had access to that money; and the tamper proof tag procedure would not necessarily prevent him taking money and substituting a tag. It is stretching credulity that these discrepancies could be attributable to Mr Hogg rather than the accused. He would be taking an enormous risk, knowing that the count figures were being investigated. However, as a matter of strict logic, he is not excluded as an explanation, even for these discrepancies.
In this regard, the seventh and last pre-count occasion is significant. I find that the accused did take collection monies and put them in her bag on this occasion. The CCTV footage, and her possession of the money, are incontrovertible. I find the various explanations she proffered to police for having the money in her purse to be inconsistent, and in any event totally implausible. The totality of the circumstances clearly rule out any plausibility in her legitimately having collection money in her possession for any of the reasons she gave. There was not some further bank account. There was no legitimate reason to give any of the Church money to her daughter. She did not have any idea of which specific collection the money in her possession came from.
The evidence for 15 July 2014 clearly establishes that it was the accused, not Mr Hogg, or anyone else, who took the money on this occasion. This points to the accused being responsible for the discrepancies over the preceding six weeks, and to the disparities over the four year period. The hypothesis that Mr Hogg, or anyone other than the accused, was responsible for the charged disparities is irreconcilably at odds with the entirety of the evidence, which plainly makes out a system undertaken by the accused. Of course, it is not only the discreditable conduct which establishes this system by the accused. The discreditable conduct is consistent with the compelling force of the evidence as a whole, including the count disparities, and the enormous shortfall between lifestyle spending, and available income.
When I consider that discreditable conduct evidence in its context, I find that during those seven consecutive weekly counts there were ongoing, broadly consistent discrepancies. I further find that for the count of 15 July 2014 the evidence clearly establishes that the accused put collection money in her bag before leaving the building and being searched and arrested.
I find that the discreditable conduct evidence establishes a system of withholding collection moneys during those seven weeks. That finding, and the other findings I have made beyond reasonable doubt based upon the discreditable conduct evidence, are circumstances which support the prosecution case upon each count, and tend to rebut the defence hypothesis, or any rational hypothesis consistent with innocence.
Consistency of Disparities/Discrepancies
Submissions have been made by each side on the issue of whether the evidence discloses a consistent deficiency or disparity: in both the non-charged, and charged, conduct.
Succinctly stated, the prosecution submits that the discrepancies between the amounts as pre-counted by the Church over the seven weeks, and the amounts banked after the accused’s count, show a broadly consistent portion of the money missing. Similarly the prosecution submit the disparities, during the charged period, between the accused and other counters, also show a similar, broadly consistent pattern. The prosecution submit that this pattern is in the order or vicinity of 30% for both the charged period, and the uncharged period.
Mr Fowler-Walker submits there is a variable degree of discrepancy during both the charged period, and the uncharged period.
There is some merit in each submission. Mr Fowler-Walker is correct about the discrepancies during the uncharged period. He is also correct that the disparities over the charged period are not precisely the same percentage either.
However, the prosecution does not suggest a precise mathematical consistency. The prosecution submit the court should use the discrepancies for two purposes: First, as being consistently in the vicinity of 30% and therefore pointing to a system of withholding an amount of this order. Second, as providing a basis to calculate or estimate the amount taken throughout the four-year period of the charges: the general deficiency.
I accept the first submission. I find there is sufficient broad consistency in the disparity or shortfall as to demonstrate a system. It would be surprising if someone operating a criminal system of this nature went to the trouble of doing precise calculations to ensure the amount taken was always the same percentage. No one else was keeping any figures. That is why the entire procedure was vulnerable to being taken advantage of, by the sole person, on any given occasion, who counted, recorded, and banked the collection money. So it is not the case that the amount taken needed to be precise in order to be camouflaged within the bookwork. There was no bookwork, other than that of the person doing the count: at least until the pre-counts were implemented.
There is another reason that, in my view, submissions for both sides amount to over analysis of the amount, or proportion, or percentage of disparities. Both sides have attempted to extrapolate or analyse the topic to a degree that the primary evidence is incapable of supporting. It needs to be borne in mind that for the accused’s counts (which is most of the counts) there are only her figures. Any disparities are with other counts by other people on other occasions. All that can be gleaned from those comparisons are marked, or significant, disparities. It is impossible to generate a precise figure, where there will always be variation in the amount collected. Detective Chewter recognises and acknowledges this. Different collections on different dates, will have different totals. The point of this topic of evidence is to demonstrate a pattern of marked disparities between the accused’s counts, and others. It is impossible, and potentially misleading, to attempt to generate actual numbers or percentages from what is no more or less than a pattern of significant disparities.
I turn to the second prosecution submission, that the disparity evidence can generate a figure for the general deficiency. I reject this submission.
It is quite legitimate to use a pattern of the accused’s counts consistently being significantly less than other counters, as suggestive of systematic withholding of collection money. It is not legitimate to use a significant or broad disparity, to attempt to generate a precise number. That would overlook the obvious vicissitudes of worshippers means, motives, generosity and even attendance. The total Parish collections for different masses and different dates, will vary, irrespective of any pilfering.
Returning to the discreditable conduct evidence, for which there are known discrepancies. I find that the system of the accused taking an amount in the vicinity of 30% of the collection during the seven-week uncharged period, does support the prosecution case of a system during the preceeding four years. I also find that it tends to rebut the defence hypothesis of Mr Hogg taking money. I do not accept the submission that the variation in the discrepancies point to someone ‘shoving their hand in the bags’. I find the broad consistency does point to a deliberate, calculated system. Such a system would never be able to achieve a precise percentage consistently, especially as the deficiency is from a total, which comprises multiple specific collections.
Conclusion
The totality of the strands of circumstantial evidence point compellingly to the conclusion that the accused was systematically, intentionally, and dishonestly, understating the total count, and keeping a portion. This evidence excludes any other reasonable or rational hypothesis. In coming to that conclusion I am mindful that the prosecution need to exclude not only the hypothesis pointed to by the defence, but that the prosecution must also exclude any rational hypothesis consistent with innocence, that arises on the evidence.
The combined force of the circumstantial evidence establishes, to my satisfaction beyond reasonable doubt, that throughout the periods particularised in each charge, the accused was systematically withholding a portion of the collection money. I find she was doing so dishonestly, without the Church’s consent, and without any claim of right. In my view those findings are the only rational conclusion from the entirety of the evidence.
That is sufficient to find her guilty of theft on each count on the Information, as the specific amount taken is not an ingredient of the charges.
Can I be satisfied beyond reasonable doubt of the amount taken, as particularised in each charge.
In my view the evidence of comparisons with counts conducted by other persons on other occasions is not a sound basis for generating a figure for the amount taken. I have stated my reasons for this.
However, there is the evidence of the forensic accountant Sian Hamblin. I found her evidence thorough, and persuasive. Importantly, she has built into her calculation and conclusions, conservative premises and assumptions in favour of the accused. I conclude from Ms Hamblin’s evidence that the total taken by the accused over the entire period of the charges was not less than $340,000. Given the systematic pattern of the accused’s conduct, I attribute this total to be broadly consistent over the charged period. Accordingly, the evidence establishes the amounts alleged in each of Count 1 and Count 2.
Count 2 is a charge of aggravated theft. The alleged circumstance of aggravation is that the accused ‘abused a position of trust’. The Criminal Law Consolidation Act does not define ‘position of trust’. Was the accused in a position of trust, upon the ordinary meaning of those words?
The accused was employed or engaged by Secure Cash, not the Catholic Church. However, s 5AA(1)(i) refers to the offender abusing a position of trust ‘in committing the offence’. The provision is not limited to position of trust owed to the victim of the offence.
Was her employment or engagement with Secure Cash a position of trust?
Any employee is ‘trusted’ in the broad sense of the word to act honestly, and to refrain from stealing property from the employer, or third parties, in the course of their employment. However, s 5AA(1)(i) suggests something more than a standard relationship as an employee or contractor.
The accused in this case was not in one of the plainly recognised categories of fiduciaries, trustees, or professionals, such as solicitors, accountants, fund managers, and the like.
However, she was the person with the sole responsibility (on the occasions she counted) for accurately counting large amounts of money, recording the figures, and banking the money. I consider those circumstances, amount to a position of trust within the ordinary meaning of those words. She plainly abused that position, in committing the offence charged in Count 2. I find the circumstance of aggravation proved.
Accordingly,
On Count 1 Theft I find the accused guilty.
On Count 2, Aggravated Theft I find the accused guilty.

Financial Year	Kerry Keen	John Keen	Total Taxable Income
2008-2009	$29,020	$38,385	$67,405
2009-2010	$27,407	$38,385	$65,792
2010-2011	$26,708	$39,654	$66,362
2011-2012	$24,850	$69,302	$94,152
2012-2013	$44,562	$63,080	$107,642
2013-2014	$38,962	$59,698	$98,660