R v Scott

[1993] QCA 236

IN THE COURT OF APPEAL  [1993] QCA 236

SUPREME COURT OF QUEENSLAND

C.A. No. 78 of 1993

Brisbane

[R. v. Scott]

T H E   Q U E E N

v.

LINDSAY FRANCIS SCOTT
  Appellant

The President

Mr Justice Pincus

Mr Justice Thomas

Judgment delivered 21/06/93

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:       CRIMINAL LAW - Evidence - Letter and phone calls by appellant - Equivocal in isolation - strong circumstantial case - whether verdict unsafe - whether letter should have been admitted in exercise of discretion.

Counsel:Mr P. Alcorn for the appellant

Mr P. Ridgway for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date(s):   11/05/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.78  of 1993

Brisbane

Before    The President
         Mr Justice Pincus
         Mr Justice Thomas

[R. v. Scott]

T H E   Q U E E N

v.

LINDSAY FRANCIS SCOTT
  Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/06/93

This is an appeal from a conviction for an offence of stealing as a servant.  The appellant was convicted in the District Court at Brisbane on 10 February 1993 and sentenced to imprisonment for two years.
     The appellant was employed as a console operator at a twenty-four hour service station in Brisbane.  His shift extended from 11.00 p.m. to 7.00 a.m..  Another employee, Ms. Charteris worked from 7.00 a.m. to 3.00 p.m., and a third employee, Mr Dillon worked from 3.00 p.m. to 11.00 p.m..  The service station had several money tills and a "drop safe", which was inside the service station building and secured by padlock.
     Until Sunday, 1 October 1989, the appellant and Ms. Charteris shared a sexual relationship and co-habitated in rented accomodation.  On that day, when Ms. Charteris completed her shift, she went to the premises where she lived with the appellant and told him that she was terminating their relationship. She then packed some clothes and made her way to her parents' home.  At about 11.00 p.m. that evening, the appellant went to the service station and replaced Dillon when he completed his shift. Later, the appellant contacted Dillon and asked him to return and stand in for him for a short time, remarking that he had "girlfriend problems".   The appellant did not subsequently return to the service station at any time.
     Between 6.00 and 7.00 a.m. on Monday, 2 October 1989, the service station owner arrived at the service station and found that the padlock had been burnt from the safe and a total of almost $5,000.00 was missing from the safe, tills and a change drawer.
     An undated letter addressed to Ms. Charteris, subsequently identified as written by the appellant, was also found that morning in the console area of the service station. That letter was, so far as potentially material, as follows:

"Hi Donna

Well, what I have done, I have done.  ... You'll know why I fucked off and won't be back hey some time today. ... so one day if you ever hear me in the news being shot just remember, you helped put me there as I don't give a fuck about what happens any more to me. ..."

Ms. Charteris gave evidence that on the same day, Monday 2 October 1989, the appellant telephoned her at her parents' home in Gympie. She said:

"Now, when did you next hear from Lindsay Scott?-- Monday morning.

Do you remember about what time?-- It was about 9.00 o'clock.

What happened then?-- He rang up and asked to speak to me and told me that he had done a service station over.

Where they the words that he used?-- Yes.

Did he tell you where he was ringing from?--

I cannot remember that, no.

Was that really the effect of the discussion?--Yeah, it was.

What happened? Did you just terminate the call, or how did it finish?-- One of us hung up. I don't know which one."

In cross-examination, Ms. Charteris said that when she informed the appellant that their relationship was finished he became upset and "broke a few things in the house".  She agreed that he expressed his distress "in a physical sort of way".  Further, she said that she had given a statement shortly afterwards to the police.  The cross-examination continued in relation to the telephone conversation which had taken placed on Monday 2 October 1989 between the appellant and Ms. Charteris:

"You can't remember what else was said?-- Only that he did  the service station over.

Your evidence to my friend was that, `he told me he had done the service station over'?-- Yes.

My friend asked you if those were the words he used, and you replied, `yes.'?-- Yes.

Do you recall recording in that statement to [the police officers] ... your recollection there about what was said?-- What I told them?

Yes, what my client said to you in that phone call. That was covered in that statement, wasn't it?-- Yes, it was.

Do you remember what you put in that statement?-- That he told me that he done the service station over, and, Um, we had an argument over the telephone, and that he was somewhere in Queensland, but I cannot remember where it was now.

I suggest to you that what you said in that statement was - and that statement was a matter of days after the event - that he said, `I did the place over, and I am in Gladstone'?-- He could have, yes.

Well, you agreed with me that if that's in your statement a day or so  later, that's more likely to be an accurate reflection of what was said?-- Yes.

Your memory was fresher?-- Yes."

Later, a copy of her statement was put before Ms. Charteris and she agreed that its contents were more accurate than what she had said in her evidence in chief.
     Mr Dillon gave evidence that, within a few days of the theft, he received two long distance telephone calls from the appellant who said "... `Are the cops after me?'; that sort of stuff."  He also gave the following evidence:

""You don't have any specific recollections of anything that was said to you?-- I think it was something along the lines he was enjoying spending the money or something like that.

...I don't want you to give any sort of interpretation, but you don't recall him identifying the money?-- No, he may have, but I don't recall him doing that."

In cross-examination, Mr Dillon said:

"Your evidence is that he said something about, `I am spending the money', but you cannot recollect if he made any reference to whose money it was?-- Yes, that's correct.  I cannot remember exactly what the conversation was about.

Really, three years down the track, you have no real independent recollection of that conversation; is that correct?-- That's correct.  It would be ridiculous to expect me to remember a phone call that happened three years ago ...

Do you remember him saying those words, or not that:`I am going to enjoy spending the money'?-- I know he said something about spending the money, yes.  I can't remember exactly how he worded it, but -----

... All you can recollect is that there was some comment about him spending the money?-- I know he did say, `The money.' I know that.

That is as specific as it got in your recollection?-- Yes, that's correct."

Evidence was also given that it was possible that some other person might have gained access to the areas where the money was taken from when the operator for the time being was absent from the console.
     It was argued for the appellant firstly, that the trial judge erred in the exercise of his discretion in admitting the appellant's letter into evidence because its contents had substantial prejudicial affect but little probative value and secondly, that the jury's verdict was unsafe and unsatisfactory "having regard to the equivocal nature of the evidence both of Charteris and Dillon relating to telephone conversations" with the appellant.
     There was a strong circumstantial case against the appellant. His conduct in calling Dillon in and then disappearing from the service station, his abandonment of his job and money due to him for work, his leaving his place of abode and personal effects and tools, taken with the disappearance of the money and the absence of any explanation for his conduct by the appellant were sufficient to support a guilty verdict.  However, the appellant's statements in his letter to Charteris and his telephone calls to Charteris and Dillon were capable of providing support for a conviction if accepted by the jury.  While such statements might be equivocal or ambiguous taken in isolation, in the context of his other behaviour it was clearly open to the jury to consider that those statements amounted to or involved admission of guilt.
     Accordingly, neither of the points raised for the appellant is of any substance.
     The appeal is therefore dismissed.