R v Scofield

Case [2020] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v Scofield [2020] QCA 101

PARTIES:

R
v
SCOFIELD, Kim Marie
(appellant)

FILE NO/S:

CA No 171 of 2019
DC No 413 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 4 June 2019 (McGill SC DCJ)

DELIVERED ON:

12 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2019

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of fraud in dishonestly applying to her own use bank credits belonging to a company owned by the complainant, two counts being committed as an employee of that company – where each count was particularised as consisting of the appellant transferring bank credits from the company’s bank accounts to her own personal bank accounts and that the appellant was dishonest in that, at the relevant time(s), she had no authority to transfer the bank credits – where the prosecution case was that the appellant had access to the company’s books and accounts through an electronic security access protocol and that while she had authority to make payments and transfers from the company’s accounts for its authorised purposes, including paying her own wages, she did not have the authority to make the transfers the subject of the alleged offences – where the defence case was that the complainant authorised the appellant to make the transfers the subject of counts 1 and 4 – where the defence case in relation to count 3 was that the transfer was not made deliberately, with the appellant being unable to recall making that transfer – whether there was sufficiently considerable evidence before the jury which should have left them in some doubt as to the dishonesty of the appellant’s actions – whether the guilty verdicts were unreasonable and insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the prosecution case in respect of count 3, particularly as to dishonesty, was circumstantial – where the trial judge made it clear to the jury that, in relation to count 3, the appellant disputed having deliberately made the transfer and identified the real issue as being whether or not the transfer was done deliberately and that if the jury so found, they were then required to consider the objective test of dishonesty – where the trial judge did not give the customary circumstantial evidence direction, directing that the existence of a reasonable possibility consistent with innocence would result in an acquittal – whether the failure to give a direction about circumstantial evidence resulted in a miscarriage of justice

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited
R v Dolley (2003)…

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R v Scofield [2020] QCA 101
Case
[2020] QCA 101
Decision Date

CaseChat Overview and Summary

In R v Scofield, the appellant was convicted of three counts of fraud involving the dishonest application of bank credits belonging to a company owned by the complainant, two of which were committed while the appellant was employed by that company. Each count involved the appellant transferring bank credits from the company's bank accounts to her own personal accounts. The prosecution argued that the appellant had access to the company's accounts and books through an electronic security access protocol but did not have the authority to make the disputed transfers. The defence claimed that the complainant authorised the appellant to make the transfers in question. The central issue before the court was whether the jury's verdict was unreasonable or insupportable given the evidence. The court also needed to determine whether the trial judge's failure to give a circumstantial evidence direction resulted in a miscarriage of justice.

The court found that the evidence presented was sufficient for the jury to conclude that the appellant acted dishonestly in making the transfers in question. The court highlighted that the complainant gave coherent and consistent evidence, whereas the appellant provided vague and conflicting testimony. The court was satisfied that the jury, having heard and seen the witnesses, could reasonably conclude that the appellant acted dishonestly and that the prosecution had negated any honest claim of right defence. Regarding the trial judge's failure to give a circumstantial evidence direction, the court concluded that this did not result in a miscarriage of justice, as the judge had clearly directed the jury on the real issue of whether the transfer was done deliberately. The court found no basis to interfere with the jury's verdicts.

The appeal against conviction is dismissed.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the purposes of the appeal, the respondent collated the particulars of the relevant transactions in a table (Appendix 1) detailing the specific evidence concerning each transaction referrable to the specific counts, including where necessary, reference to the financial exhibits. No dispute was raised as to the matters as presented in that document which is appended to these reasons.The evidence at trialThe prosecution evidence The prosecution case was that the appellant had access to Bazaar’s accounts and books through an electronic security access protocol[2] and that, while she had authority to make payments and transfers from Bazaar’s accounts for its authorised purposes, including paying her own wages, she did not have authority to make the transfers which were the subject of counts 1, 3 and 4.[2]AB2 at 140.Ms Simpson’s evidence The prosecution case centred on the evidence of Ms Simpson, the owner of the business, Bazaar, which was incorporated in 2012. It organised stalls in markets as part of festivals, administering applications for stalls and managing documentation and related matters including the hire of equipment and the finances for stallholders. Ms Simpson came to know the appellant when she was operating the business as a sole trader. She engaged the appellant on a casual contractor basis[3] to set up and operate an MYOB system for the business. Ms Simpson was very busy with work and a young family.[4] Following a redundancy in 2015, the appellant was engaged on an ad hoc basis.[5][3]AB2 at 129.[4]AB2 at 136-137.[5]AB2 at 138. The appellant worked initially at Ms Simpson’s home office at Witta and then also at her own residence in a home office.[6] During the period the subject of count 4, the appellant and her daughter, Chalcei, were living at Ms Simpson’s home.[7] Over the period that the appellant worked for Ms Simpson, Ms Simpson considered her a trusted close friend.[8][6]AB2 at 136.[7]AB2 at 168 and 193.[8]AB2 at 135. After Bazaar’s incorporation, the appellant attended to document management and managed the transition to a system of accounting using Xero[9] and other financial administration matters for which she had access to Bazaar’s online financial account management systems. Her financial administration responsibilities included managing money coming in and going out to and from stallholders, invoicing and paying contractors and payroll matters and, for such purposes, had access to funds going into and out of Bazaar.[10] She was authorised to make payments from Bazaar’s accounts for various purposes, including paying contractors and employees of Bazaar,[11] including herself. After she became a contractor, she was authorised to invoice Bazaar and pay her own invoices.[12] Authorisations were given to her verbally.[13][9]AB2 at 129-130.[10]AB2 at 131-132.[11]AB2 at 133.[12]AB2 at 138-139.[13]AB2 at 180. Ms Simpson identified various financial documents which were tendered, including Bazaar’s Suncorp bank statements and a Xero document of financial transactions by which Ms Simpson identified unauthorised transactions.

Decision

Reasons for decision

The appellant accepted that there “was no discussion with [Ms Simpson] about how the amounts were supposed to be paid”.[133] The appellant said that the discussion about payment in part increments was that she asked Ms Simpson whether it would be okay to pay the commission in increments.[134] However, the appellant said there was “no discussion” with Ms Simpson regarding the specific details around these instalments or the amount of each instalment.[135] There was no rational reason for the difference in the partial payments and there was no way to reconcile the total amount of commission until there was a final balance and, until then, Ms Simpson and the appellant worked on the basis of a “guesstimation”.[136][133]AB2 at 264.28-29.[134]AB2 at 265.4-11.[135]AB2 at 266.4-19.[136]AB2 at 267.39.Conclusion The trial judge gave appropriate directions as to the onus of proof on the prosecution to prove the elements of the offences which were also the subject of conventional directions. His Honour also correctly directed the jury as to the defence of honest claim of right and the onus was on the prosecution of disproving that defence. I agree with the respondent’s submissions. In my view, having reviewed the evidence as a whole and giving due regard to the jury’s advantage in hearing and seeing the witnesses, it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt. As the respondent submitted, central to the case was the various assessment of witnesses and the way they presented, which is very much in the province of the jury. Except for count 3, there was no denial by the appellant that the transfers were deliberately made. The jury was entitled to be satisfied beyond reasonable doubt that the appellant acted dishonestly in transferring the bank credits the subject of counts 1 and 4 and that the Crown had negated an honest claim of right. Ms Simpson gave coherent and consistent evidence, including a plausible explanation for updating her police statement. She was clear that Christmas bonuses were paid and that she gave the appellant loans but was adamant that she did not authorise the payment of credits nor of commissions to the appellant. The appellant, on the other hand, gave vague and conflicting evidence on important matters, including the details of the conversation relied upon as authorising the payments, how many conversations had taken place, where they had taken place and who was present. The appellant accepted that there was “no formal arrangement” as to the payment of commission. The appellant also accepted that there was no discussion about how the actual amounts were to be paid and that she worked on the basis of a “guesstimation”. The appellant’s evidence as to how the commission was to be calculated was confusing. Her evidence was that it was variously to be a percentage of the profit, 15 to 20 per cent, “within reason” and a “wage advance type situation”. Her evidence as to Mr Blackmore’s presence at a conversation about the paying of a commission, in particular, was significantly contradictory. She accepted that she never informed Ms Simpson of her actual calculation of commission, nor sought her approval for payment of any amount. Her explanation that, as she attended to payment of expenses and the like without checking back with Ms Simpson, she understood that she could pay commissions to herself on the basis of the conversations about which she gave evidence, was a matter for the jury to consider. The document produced by the appellant and tendered as ex 6 was accepted by the appellant as not being an invoice or bill that was provided to Ms Simpson.

Ratio Decidendi

Legal Principle Established

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