R v Robson

[2000] QCA 424

SUPREME COURT OF QUEENSLAND

CITATION:

R v Robson [2000] QCA 424

PARTIES:

R
v
ROBSON, Nerida Gaye
(appellant)

FILE NO:

CA No 87 of 2000
DC No 66 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

13 October 2000

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2000

JUDGES:

Pincus JA, Chesterman and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – EMBEZZLEMENT – BY CLERK, SERVANT OR OTHER EMPLOYEE

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – UNSAFE AND UNSATISFACTORY – LIES – whether insufficient evidence to satisfy a jury beyond reasonable doubt that appellant stole – whether sufficient evidence to satisfy a jury that a precise statement was made that constituted a lie – held that guilt was open to jury upon the whole of the evidence

Edwards v The Queen (1993) 178 CLR 193, considered
Green v The Queen [1999] HCA 13; (1999) 161 ALR 648, considered
M v The Queen (1994) 181 CLR 487, considered
RPS [2000] HCA 3; (2000) 168 ALR 729, considered
Zoneff v The Queen [2000] HCA 28; (2000) 172 ALR 1, considered

COUNSEL:

G P Long for the appellant
D Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. PINCUS JA:  I have had the advantage of reading the reasons of Chesterman J and those of Atkinson J.  One problem facing the jury was to consider the explanation for the many fuel returns recorded, consisting in amounts being multiples of $50 – usually, $100.  It is not credible that these repeated entries represented genuine fuel returns, for such returns would be expected to be in odd amounts, certainly not in amounts of $100 day after day.

1. The appellant's counsel has argued that there are some puzzling aspects of Exhibit 6 which sets out the details I have mentioned;  that is so, but an examination of the evidence of Mr Stewart who prepared the Exhibit reveals no reason for thinking that its contents are other than substantially accurate.

1. According to the Crown case, the appellant gave a false explanation for her having monies which, it was alleged, she obtained in reality from the fraudulent activity charged.  The appellant's argument focused on the supposed unreliability of the witnesses who gave evidence about this alleged lie, D M and T C Coolee.  It is true that the evidence given by these witnesses contains inconsistencies, but it appears to me that the jury  could reasonably have been satisfied that the Coolees were given a false explanation by the appellant.  The jury were also entitled to take into account that all the other employees who might have had access to the till, but one, were called and these people in one way or another, if accepted, established their innocence.  One Farrell was not called;  he was described as "the painter" and there is nothing in the record to suggest that he had opportunity for regular thefts from the till.  The argument hinted at by the defence at the trial was that a named person other than Farrell might have been the guilty party (189).

1. Since it is evident that the round entries for alleged fuel returns were, at least in large part, fraudulently made to disguise abstractions of cash from the till, the question before the court at trial was "Who took the money"?  Those who seemed to have the opportunity to do so were all accounted for, except the appellant.

1. The appellant gave no evidence.

1. In my respectful opinion, in considering whether the verdict should stand, this Court may properly have regard to "the facility that appears to be afforded, either of explanation or contradiction":  RPS [2000] HCA 3 at [23]; (2000) 168 ALR 729 at 736. Justice may miscarry, causing a bad conviction, even when circumstances suggesting guilt are not explained away; but when those circumstances point strongly towards the guilt of the accused, as they did here, this Court is not obliged to ignore the absence of explanation or contradiction.

1. Like Chesterman J, I agree with the reasons given by Atkinson J in relation to the evidence of Mr and Mrs Coolee.  I also agree with the reasons given by Chesterman J and that the appeal must be dismissed.

1. CHESTERMAN J:  An outline of the relevant facts appears in the reasons for judgment of Atkinson J. 

1. The appellant’s submission was that (a) without the evidence of Mr and Mrs Coolee the prosecution case was insufficient to satisfy a jury beyond reasonable doubt that the appellant had misapplied her employer’s money, and (b) the Coolee’s evidence, when properly analysed, could not have been accepted by a reasonable jury. 

1. The essence of the prosecution case was that for the relatively short period of time the appellant was employed (20 October 1997 to 20 February 1998) 94 fuel returns on 46 days were recorded, a substantially larger number than usual. There was no similar activity in the period prior to her taking up employment or after she was dismissed.  Most returns were for sums in round figures of $50.00 or multiples thereof. Moreover it was alleged that the returns only occurred on days when the appellant worked.

1. Although it was said (by Mr Fitzsimmons T11.45) that the employer did not give refunds for fuel returned this appears incorrect.  The accountant, Mr Stewart, gave evidence that the financial records did show occasional refunds for fuel returned, before and after the appellant’s employment. In the three months for which till rolls were available and during which the appellant was employed there were 3 returns for amounts not in round figures.

1. It was submitted that persons other than the appellant may have had access to the till to generate the refund transactions and/or that there were circumstances in which the fuel return key on the register might be legitimately used by an operator to correct a mistake.  The answer to this criticism is that Mr Fitzsimmons himself asked the appellant for an explanation of the number of fuel returns shown on the till rolls and “she didn’t know how to explain it and she didn’t know it happened”.  (T15.30).  If there were an innocent explanation for the entries one would have expected the appellant to offer it to her employer. 

1. The appellant makes a number of criticisms of the detail of the accounting evidence relied upon to establish the prosecution case.  Particular complaint is made about the absence of some till rolls.  Their absence is said to mean that the comparison made to show the unusual pattern of activity during the appellant’s employment is not based upon proper data.  The till rolls are a documentary record produced contemporaneously with every transaction put through the cash register.  The rolls for the period prior to 15 December 1997 were not produced and no satisfactory explanation was given for their loss.  However the cash register produced in computerised form a daily summary sheet as well as the paper till roll.  The rolls contained more transactional detail than the daily summaries.  The rolls showed, for example, amounts paid out to a customer for a return of fuel as a separate item.  The summary merely showed whether a refund or credit had been made and the amount. Mr Stewart prepared the comparison utilising the available till rolls and the daily summaries.

1. It was pointed out that the schedules which compared the number and value of returns in the period of the appellant’s employment against the number and value of returns made before and after did not convincingly show an increase in the first mentioned period.  The schedules, of course, included all returns of stock, or credits, and were not limited to fuel returns.  This insensitivity in the data did serve to blunt the prosecution case but Mr Stewart’s schedules (in particular Exhibit 7 Schedule A record 216) do show a marked increase in the number and value of returns for the period November 1997 to 19 February 1998 compared to the periods May 1997 to October 1997 and 20 February 1998 to April 1998.  Another criticism was that a close perusal of the schedules showed inconsistencies.  For example although the number of returns in September 1997 was smaller than for December the value of the September returns exceeded those made in December.

1. The fact that the available information prior to 15 December 1997 did not allow fuel returns to be individually identified, and the further fact that within the months analysed one can see slight disturbances to the pattern which the prosecution alleged showed the appellant’s depredations, do not substantially diminish the essence of that case.

1. Against these points was the employer’s evidence that returns of fuel occurred very rarely.  This appeared to be corroborated by the available till tapes.

1. All the points of criticism were before the jury.  It was for them to assess the evidence which though not overwhelming, seems to have been capable of establishing, to the satisfaction of a reasonable jury, that the appellant had falsified fuel returns. 

1. It is conceded that the evidence of Mr and Mrs Coolee was of central importance to the prosecution. If accepted an insubstantial circumstantial case became compelling.  I agree with Atkinson J that for the reasons her Honour has given the appellant’s criticisms of that evidence cannot be accepted.   The result is that the appellant’s criticisms of the accounting evidence lose their significance.  I agree that the appeal should be dismissed.

1. ATKINSON J:  This was an appeal against conviction by Nerida Robson who was convicted in the District Court at Bundaberg on 6 March 2000 of one count of stealing as a servant.  The appellant was employed between 20 October 1997 and 20 February 1998 at Fitzsimmons Mechanical and Smash Repairs Pty Ltd in Childers owned by Robert Fitzsimmons.  The business was divided into two parts – the driveway service selling fuel, oil, parts and acting as an agent for insurance companies and a garage providing car repair and panel beating services.  The appellant worked in the driveway section.  Her responsibilities included providing driveway service, operating the till, reconciling the till tapes and daily banking.

1. On 19 February 1998, the appellant was away from work and so the bookkeeper for the business, Janice Counter, performed the duties on that day of reconciling the till tapes and banking.  The till tapes recorded the cash register transactions from lunch time the previous day.  She noticed unusual entries which showed that on the previous day there were two entries for the return of fuel of $50 each.  The business did not give refunds for fuel.[1]  Checking of earlier entries showed a similar pattern for days when the appellant worked with a total of 94 fuel return items[2] for part of that period[3] in a total sum of $5,241.58.  The appellant was the only employee present on each of the days when this occurred.  All of the other employees, except a painter, were called and gave evidence that they had never taken money from the till without the knowledge of the business proprietor or that they had never witnessed or performed any fuel returns.  The appellant did not give evidence.

   [1]Occasionally the refund button on the cash register would be used to correct an error such as when a bankcard entry had been incorrectly rung through the till, but these types of errors were able to be explained by reference to other documents unlike the pattern of cash returns for fuel on the days when the appellant worked.

   [2]See Exhibit 7; Schedule B.

   [3]Fuel returns were recorded on 46 days between 15 December 1997 and 19 February 1998.

1. The case was a circumstantial case and one of the matters that the Crown relied upon to prove the circumstantial case was what the Crown alleged was a lie told by the appellant to account to other people for the money she had.  There was no objection by the appellant’s counsel at trial nor on the appeal to the direction given by the trial Judge.  The argument on appeal with regard to that issue was whether there was sufficient evidence for the jury to be satisfied that a precise statement was made that constituted a lie.  The appellant argued that there were significant inconsistencies between the two witnesses to the alleged lie and the court should make an independent assessment of that evidence to determine whether or not it was really open to the jury to accept the evidence beyond reasonable doubt. 

1. Ordinarily the telling of lies merely affects the credit of a witness who tells them.  In such a case it is appropriate for the trial Judge to direct the jury as suggested by the High Court in Zoneff v The Queen:[4]

“You have heard a lot of questions [or have heard submissions from the prosecution], which attribute lies to the accused.  You will make up your own mind about whether he [or she] was telling lies and if he [or she] was, whether he [or she] was doing so deliberately.  It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning:  do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.”

[4][2000] HCA 28 at [23].

1. A lie told by an accused may, however, in a case such as this amount to conduct which is inconsistent with innocence, and therefore be an implied admission of guilt.[5]  If the prosecution contends that a lie is evidence of guilt, in the sense that it was told because “the accused knew that the truth . . . would implicate him [or her] in the offence” and if, in fact, the lie in question is capable of bearing that character, then a direction may given to that effect.[6]  In such a case the lie or lies in issue should be identified together with the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.

   [5]Edwards v The Queen (1993) 178 CLR 193.

   [6]Edwards v The Queen (supra) at 11 as explained in Zoneff at [16].

1. In this case, the lie relied upon by the prosecution was that the appellant told Mr and Mrs Coolee, from whom she bought two horses, that she was working for Bob Fitzsimmons and “getting good money” and receiving $100.00 commission each time she signed up a customer to a particular insurance company.  This explanation was given as to why she had the money she had at the time she was working at Fitzsimmons Mechanical and Smash Repairs.  Unchallenged evidence was given by the prosecution that in fact she was receiving no commission.  Mr and Mrs Coolee’s evidence differed in some respects.  What part of the evidence the jury accepted and what part they rejected was a matter for them.  There was certainly evidence capable of satisfying a properly instructed jury that a lie was told by the appellant which was deliberate, related to a material issue, and was told from a consciousness that the truth as to why she had the extra money would implicate her in the offence.[7]  The evidence was shown to be a lie by Mr Fitzsimmon’s evidence.[8]

   [7]Edwards v The Queen (supra).

   [8]Green v the Queen [1999] HCA 13 at [33].

1. The prosecution case, while circumstantial, was very strong.  The verdict could not be considered unsafe or unsatisfactory, because upon the whole of the evidence, it was open to the jury, who is the body entrusted with the primary responsibility of determining guilt or innocence, to be satisfied beyond reasonable doubt that the appellant was guilty.[9] 

   [9]M v The Queen (1994) 181 CLR 487 at 493.

1. In the circumstances, the appeal should be dismissed.