R v Pallett

[1994] QCA 52

THE COURT OF APPEAL [1994] QCA 052

SUPREME COURT OF QUEENSLAND

C.A. No. 288 of 1993

Brisbane

Before Macrossan C.J.
Davies J.A.
McPherson J.A.

[R. v. Pallett]

BETWEEN

T H E Q U E E N

v.

STEPHEN PALLETT

(Appellant)

Macrossan C.J.
Davies J.A.

McPherson J.A.

Judgment delivered 23/03/94

Reasons for judgment by the Court

APPEAL ALLOWED. CONVICTION AND VERDICT SET ASIDE. NEW TRIAL
ORDERED.

CATCHWORDS CRIMINAL LAW - EVIDENCE - Re-examination of prosecution witness in relation to previous convictions arising from same facts - Attempt to show involvement of accused in the offences leading to those convictions - Whether legitimate purpose of rehabilitating witness credit - Purpose of re-examination discussed.

Counsel: K. Holmes for the appellant

P. Rutledge for the respondent

Solicitors: Boe & Co. for the appellant

Director of Prosecutions for the respondent

Hearing Date: 12 November 1993

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Twenty-Third day of March 1994

This is an appeal by Stephen Pallet against his conviction at trial on an indictment charging a single count of dishonest application to his own use and that of others of the contents of a bank account subject to a trust. The account, which was designated the No. 2 account, was conducted in the name of

International Holiday Clubs Pty. Ltd., which is here referred to

as IHC.

The account and the trust in respect of it came into existence in the following circumstances. In 1987 IHC was engaged in selling time shares in building units in a resort building named Voyagers on the Gold Coast. The units had

previously belonged to Harry Szmerling or a company controlled

by him, which retained some of the units. With respect to them

an arrangement was made by which IHC acted as marketing agent for Szmerling on terms that, of the proceeds of sale of each

weekly time share, IHC would be entitled to retain the net balance after paying $2,500 to Szmerling. Pending remission of

that money to Szmerling it was banked to the credit of the No. 2

account in the name of IHC. The result was that IHC became the owner in law of the money in the account but it was held in trust for Szmerling.

There was little or no dispute about any of these matters at the trial, nor about the fact that money totalling some $116,000 was misappropriated from the No. 2 account and applied

in discharging expenses of IHC or in paying for benefits for that company or its directors. The latter included the

appellant and his father William Pallett, while Roger Berther was the company secretary of IHC. The appellant, Berther and for a time at least one other person were authorised to draw on

the No. 2 account and the signatures of two of them were needed

for cheques drawn on the account.

Berther was the principal prosecution witness at the trial. He gave evidence about the affairs of the IHC and the conduct of its business and the No. 2 account. In cross-examination it was put to him by counsel for the appellant that Berther had endeavoured to keep the appellant "in the dark" about the operation of IHC, which it was suggested was under the control of Berther. The contention evidently was that the appellant did not know the money could not be drawn upon to pay IHC expenses.

The witness emphatically rejected all suggestions to that

effect.

In September 1991 Berther had himself already been convicted of a charge of dishonest misappropriation arising out of the same transactions as became the subject of the charge against the appellant at his trial, and he also sustained convictions on some 14 counts of forgery. In the light of his resistance to the suggestions being put to him in cross-examination, counsel for the appellant moved to challenge his credit by eliciting admissions that he had been convicted of

an offence of misapplying $116,000 in September 1991, and on the same occasion had asked for the 14 offences of forgery and an additional charge of misappropriation to be taken into account on sentence.

Using previous convictions to damage the credit of an opposing witness is, of course, a standard technique of cross-examination. Here counsel had the additional aim of showing that, in return for the testimony he was giving against the appellant, Berther had received an indemnity; and, further,

that he felt a sense of resentment against the appellant for his

having supplied the police with a statement (ex. 26) and for

giving evidence at committal (ex. 27) implicating Berther in

those offences. This would expose to the jury grounds for suspecting that Berther harboured a bias against the appellant, and so weaken his credit as an impartial witness.

From the questions put in cross-examination it would not

have been possible to arrive at the detail of the offences for

which, as Berther admitted, he had been sentenced. However, at the conclusion of the cross-examination, counsel for the Crown

announced in the absence of the jury that he was proposing in re-examination to ask further questions about the 14 forgery convictions. His expectation was that Berther's answers would show that those offences had been committed in conjunction with the appellant, who, together with his father, had benefited

personally from the payments involved. After hearing argument

on a defence objection to such evidence being led, the trial judge ruled that the questions might be put to Berther in

re-examination. It is this ruling, or the evidence that was given in consequence of it, that now forms the only ground of

appeal in this case.

The substance of Berther's evidence in re-examination was that the appellant had forged invoices containing fictitious claims for goods supplied to IHC, which were met by means of cheques drawn on the No. 2 account that were signed by Berther and the appellant. Some of the cheques in question involved sums of money that formed part of the total of $116,000 which the appellant was charged with dishonestly applying. In these

circumstances it is conceivable that evidence about these matters might have been admissible in proof of the prosecution case against the appellant. For, despite the general prohibition in Makin v. Attorney-General (N.S.W.) [1894] A.C. 57

against adducing evidence tending to show that an accused has committed offences other than those charged, such evidence may be admitted if it is relevant to an issue at the trial, such as

dishonest intention or knowledge : see R. v. Bond [1906] 2 K.B.

389, 421. What Berther said in re-examination might thus have

helped the prosecution to prove that the application of the

funds in the No. 2 account was dishonest; or it might have

served to undermine a defence contention that the appellant did not know the true character of the No. 2 account. It was not, however, led with this in mind as part of the Crown case against

the appellant.

In R. v. Singleton [1986] 2 Qd.R. 535, there is a consideration of the proper limits of re-examination, in the course of which Macrossan C.J. referred to the ruling in R. v. Fletcher & Ors (1829) 1 Lewin 111; 168 E.R. 979. It was a trial

at assizes where, with a view to discrediting him an accomplice was asked in cross-examination and confessed that he had committed two other robberies on the same night as the one charged in the indictment. On re-examination Littledale J. refused to permit questions designed to show the circumstances of the robberies and the identities of the persons in whose company they were committed, the object being to show that those persons were the prisoners being tried. In so ruling, his

Lordship observed that the cross-examination having been only

with a view to the witness's discredit, it was not competent for counsel on re-examination to ask questions not arising out of cross-examination in order to incriminate the prisoners. To the same effect are the remarks of Abbot C.J. in the Queen's Case (1820) 2 Brod. & B. 284, 297; 129 E.R. 976, 981.

The proceedings in the present case seem to us to fall

precisely within the terms of the ruling of Littledale J. The

cross-examination of Berther was directed to discrediting him, and defence counsel took care not to venture into the detail of the offences for which the witness had been sentenced, or to

open up a general inquiry concerning their connection, if any, with the offences charged against the appellant. On appeal it was contended for the Crown that this would result in the jury being given a distorted impression which might reflect unfairly

on Berther's credit. But it is simply not possible to view the evidence elicited in re-examination as in any sense capable of re-establishing Berther's credit. It does nothing to improve one's impression of the credit of a witness to be told that he was not alone in committing the offences to which he admits, but that he carried them out in company with another or others; nor

is his credit restored on learning that the offences in question

were not committed on some other occasion but were those being
tried.

The questions asked and answers given in re-examination cannot therefore be considered as having the legitimate purpose of attempting to rehabilitate the credit of Berther. Instead, they tended only to prejudice the appellant without achieving any permissible probative purpose. In the course of prosecuting counsel's submissions leading to the ruling at the trial, there is a hint that the evidence he had it in mind to adduce in

re-examination might be relevant to the issues in the Crown case in one or more of the ways we have mentioned. Plainly, however,

re-examination was not the proper occasion on which to begin for the first time to intrude evidence of that kind, and on appeal

Mr Rutledge of counsel for the Crown rightly made no attempt to

support its reception at the trial on that footing.

It follows that the evidence was not properly admitted. As it may very well have operated to influence the jury in reaching their verdict, the appeal should be allowed and the conviction

and verdict set aside. It was submitted that this was not an appeal in which a new trial should be ordered to enable the Crown to repair the defects in its case. We do not see the

matter in those terms. A new trial should be ordered.