R v Thompson

[2002] NSWCCA 149

Reported Decision: (2002) 130 A Crim R 24

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Thompson [2002] NSWCCA 149 revised - 21/05/2002
FILE NUMBER(S):	CCA 60176/01
HEARING DATE(S):	12/04/02
JUDGMENT DATE:	16 May 2002
PARTIES :	Regina (Cth) v John Samuel Thompson
JUDGMENT OF:	Ipp AJA at 1; Sully J at 86; Bell J at 87

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/3041
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	R J Button (Appellant - On conviction) M M Cinque (Crown)
SOLICITORS:	D J Humphreys - Legal Aid Commission (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
CATCHWORDS:	CRIMINAL LAW - appeal against conviction and sentence - whether trial conducted according to law - whether interventions by trial judge caused trial to become inquisitorial - whether by reason of the judge's interventions the appellant was denied a fair trial leading to a miscarriage of justice - principles.
LEGISLATION CITED:	Crimes Act 1914 (Cth)
CASES CITED:	M v The Queen (1994) 181 CLR 487 Galea v Galea (1990) 19 NSWLR 263 R v Mawson [1967] VR 205 Mercer (1993) 67 A Crim R 91 Jones v National Coal Board [1957] 2 QB 55 R v Esposito (1998) 45 NSWLR 442 R v E (1995) 89 A Crim R 325 R v Wilson and Grimwade [1995] 1 VR 163 Yuill v Yuill [1945] 1 All ER 183 Bassett v Host [1982] 1 NSWLR 206 GIO ov NSW v Glasscock (1991) 13 MVR 521 R v Hopper [1915] 2 KB 431 Cain (1936) 25 Cr App R 204 Gilson and Cohen (1944) 29 Cr App R 174 R v Lewis (2001) NSWCCA 345 R v Edward Spencer Pearce (2001) NSWCCA 447 R v Bibaoui (1996) 87 A Crim R 527 R v Jackson (1998) 104 A Crim R 196
DECISION:	See paras 81, 82, 83, 84 & 85.

60176/01

IPP AJA
SULLY J
BELL J

Thursday 16 May 2002

JOHN SAMUEL THOMPSON v REGINA (COMMONWEALTH)

Judgment

1 IPP AJA:

The appeal against conviction and sentence

2 This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was represented by Mr Button in regard to the appeal against conviction but he argued his application for leave to appeal against sentence himself. Mr Button did not appear at the trial. Ms Cinque appeared on behalf of the Crown in the appeal. She, too, did not appear at the trial.

3 On 22 November 2000 the appellant was charged before Kinchington DCJ and a jury in respect of 40 counts of imposing upon the Commonwealth by an untrue representation. Each of these charges alleged an offence contrary to s 29B of the Crimes Act 1914 (Cth).

4 The charges were said to arise in the following circumstances. The appellant was employed as an administrative services officer in the Retirement and Disability Unit of the Penrith office of Centrelink from 21 October 1996 to June 1999. The Crown alleged that over a period of some months, while the appellant was so employed, he used his computer “logon” identification fraudulently so as to cause electronic benefit transfer (“EBT”) cards to be issued by the computer system in the Centrelink Penrith office. The cards were purportedly issued in favour of certain pensioners, who were unaware that this had been done.

5 The EBT cards purported to entitle the identified pensioners to credits of various amounts. The Crown alleged that the appellant used automatic telling machines (“ATM’s”) to withdraw cash representing the amount of each such credit. The total amount of money so withdrawn was $20,190. Each of the 40 counts related to the issue of a single EBT card and its subsequent encashment.

6 The appellant was acquitted in respect of counts 3, 4, 16 and 17. He was found guilty in respect of the remaining 36 counts. Kinchington DCJ sentenced him to imprisonment in the aggregate for three years and nine months with a non-parole period of two years six months. His Honour made a reparation order of $20,190 in favour of the Commonwealth.

7 The appellant raised two grounds of appeal in respect of his appeal against conviction. The first ground was that the verdicts of guilty on the 36 counts were unreasonable and could not be supported, especially in the light of the evidence regarding the four counts on which he was acquitted. The second ground incorporated two arguments. The first argument was that the trial judge repeatedly intervened in the examination and cross-examination of witnesses to an extent that resulted in the trial being transformed from an adversarial contest presided over by an impartial judge into inquisitorial proceedings in which the judge played an extremely active role. The result, it was submitted, was that the trial was not a trial in accordance with our law. The second argument was that the judge’s interventions resulted in the appellant being denied a fair trial according to law and this led to a miscarriage of justice.

The first ground: was the verdict unsafe?

8 Effectively, the appellant did not dispute that each of the 40 EBT cards was fraudulently issued. The crucial question at the trial was, rather, whether the appellant was the person responsible for the issuing of the EBT cards and the collection of the money in respect of those cards from the ATM’s.

9 Generally, EBT cards were issued by Centrelink to persons entitled to instalments of Centrelink benefits or pensions in what were regarded as “emergencies”. Once an EBT card was issued to a particular person, that person could use the card at an ATM (in the same way as a credit card is so used) to withdraw a sum of money in accordance with instructions that had been electronically programmed into the EBT card by a computer operated in the Centrelink Penrith office.

10 A security system was in operation at the relevant time that was designed to ensure that EBT cards were issued only to appropriate persons. Part of the security system involved each person who operated a computer in the Penrith office having (and using) a logon identification and one or possibly two passwords. While the logon identification of each employee was generally known within the office, it was departmental policy that no employee should tell anyone else his or her current password. While the logon might generally be known within the office, the password was not.

11 At a later time, a system involving a “smart card” was introduced. This required use of such a card with a unique PIN number known only to the holder. The holder would use the smart card to gain access to the computer.

12 On each occasion that a person gained access to the computer (whether under the initial security system or under the later smart card system), a record was generated of such access.

13 The 40 offences charged fell into two categories. The first comprised instances where moneys were withdrawn from ATM’s during periods in the working day when the appellant’s logon identification and password were shown to be inactive. The second category comprised instances when moneys were withdrawn from ATM’s after the appellant’s working day had finished.

14 In regard to the first category the Crown attempted to establish that, in each case, the period of computer inactivity relating to the appellant’s logon identification and password was sufficiently long to enable the appellant to have walked to the ATM from which the money was withdrawn, effected a withdrawal, and then returned to the office. Similarly, in respect of the withdrawals after work hours, the Crown attempted to establish that, in each instance, there was sufficient time between the cessation of computer activity on the part of the appellant and the particular withdrawal from an ATM for the appellant to have effected each withdrawal.

15 The Crown led evidence at the trial to the following effect:

(a) Each of the EBT cards, the subject of the 40 counts, was issued under the logon identification and password of the appellant.

(b) The appellant did not tell anyone his password.

(c) Save in respect of count 16, the EBT cards were used to withdraw moneys from ATM’s at times when the logon identification and password of the appellant had not been used to activate a computer in the Penrith office.

(d) On the day each fraudulent EBT card was issued, access to the computer records of the pensioners in whose favour the EBT cards had been issued had been gained under the logon identification and password of the appellant; such access was for periods exceeding 10 minutes in each case in relation to all counts except counts 8, 13, 15, 21, 26, 33 and 36.

(e) In relation to counts 6, 7, 20, 33 and 39 (which involved withdrawals from ATM’s after work hours) the ATM’s from which the funds were withdrawn were located on the route travelled by the appellant between the Penrith office and his home.

(f) According to the attendance records and staff roster of the Penrith office, apart from one Andrew Croucher the appellant was the only staff member of the Retirement and Disability Unit who was present at work on each day a fraudulent EBT card was issued and EBT funds were fraudulently withdrawn from an ATM. Croucher said that at the relevant time he was not familiar with the steps required to issue an EBT card.

(g) In respect of counts 8, 21 and 26, the relevant EBT card was issued between 7.00 am and 7.30 am on days when according to the “flex sheets” the appellant was the only person on duty at the time of the issue.

(h) Each staff member employed at the Penrith office during the relevant time denied using the appellant’s logon identification and password to gain access to the Centrelink computer system.

(i) Each staff member employed at the Penrith office during the relevant time, except one Barbara Bezzina, denied issuing any EBT card under the appellant’s logon identification and password; Barbara Bezzina said she doubted having done so, and had she done so it would have been done while she was training the appellant.

(j) None of the employees in the Penrith office used a computer that was logged on at a particular work site without the permission and the presence of the person whose logon identification and password had been used to activate the computer; there was one exception to this rule, namely, the computer at the reception area where it was not uncommon for the person who first logged on to that computer to leave it (activated by his or her logon identification and password) for use by others.

(k) In respect of all counts except counts 16 and 17, there was sufficient time between the commencement of computer inactivity relating to the logon identification and password of the appellant and the ATM withdrawals to have enabled the appellant to walk from the Penrith office to the relevant ATM and to make the withdrawal. The Crown contended, in respect of counts 16 and 17, that the appellant had left the reception computer logged on under his logon identification and password to enable that computer to be used by others while he made the ATM withdrawals.

(l) In the case of all counts involving withdrawals from ATM’s during working hours (except counts 3 and 4), the period from the time of the ATM withdrawal to the commencement of computer activity based on the appellant’s logon identification and password was sufficient to have enabled the appellant to return from the relevant ATM to the Penrith office. In the case of counts 3 and 4, the Crown contended that the appellant had left the reception computer logged on under his logon identification and password to enable that computer to be used by others while he made the ATM withdrawals.

(m) According to the flex attendance sheets, the appellant was on duty at the times that all but two of the 40 EBT cards were issued. In regard to the two in question (namely, those in respect of counts 14 and 18) the flex sheet times recorded by the appellant were consistent with him not taking the breaks recorded but doing so at a time after the EBT cards in question were issued.

(n) According to the flex attendance sheets, each of the other members of the Retirement and Disability Unit was off duty on a substantial number of occasions when the 40 EBT cards were issued.

(o) The issuing of the EBT cards, the subject of counts 10, 24, 30 and 40, was approved by a second officer in circumstances where it was likely that the second officer would have known under which logon identification the computer had been activated and would have noticed if the person requesting the approval for the issuing of the cards was not the appellant.

16 As regards counts 3 and 4, the periods between the withdrawal of cash and the resumption of computer activity under the appellant’s logon identification and password were too short for him to have been able to return to the office after withdrawing the money from the ATM’s in time to resume the recorded computer activity in the Penrith office.

17 As regards counts 16 and 17, the periods of inactivity of the appellant’s logon identification and password were too brief for him to have left the Centrelink premises and walked to the ATM’s concerned to withdraw the money.

18 Accordingly, there was a significant difference between counts 3, 4, 16 and 17, on which the appellant was acquitted, and those counts in respect of which he was found guilty. That is to say, the difficulties in regard to time that the Crown faced in regard to counts 3, 4, 16 and 17 did not exist in regard to the other counts. Therefore, it could not reasonably be argued that the verdicts in respects of counts 3, 4, 16 and 17 were inconsistent with the guilty verdicts within the meaning of the authorities. Mr Button, counsel for the appellant, quite properly did not submit that there was such an inconsistency. Rather, he submitted that when considering all of the evidence, and paying proper regard to the four acquittals, the 36 verdicts of guilty were unreasonable. This submission, in essence, went to the weight of the circumstantial evidence against the appellant.

19 As mentioned, the Crown case in respect of counts 3, 4, 16 and 17 was that the appellant had activated the computer at the office reception desk with his logon identification and password, and had left the computer so operating while he walked to the ATM’s to withdraw moneys. Mr Button pointed to the fact that the appellant’s defence to the mass of circumstantial evidence against him was that someone else had used a computer that had been activated with the appellant’s logon identification to carry out the fraudulent operations. Thus, it was said, the Crown case in respect of counts 3, 4, 16 and 17 accepted the reality of the possibility on which the appellant’s defence was based. This was the strongest argument raised by Mr Button in regard to this ground.

20 Mr Button also pointed to the fact that the appellant had raised character as a defence and had gone into evidence to deny the charges against him.

21 Mr Button accepted, however, that, in regard to the 36 counts, there was no gap or missing link in the Crown case.

22 I am not persuaded by the argument advanced on the appellant’s behalf. The Crown case against the appellant was powerful. The accumulation of all the matters on which the Crown relied (which I have set out above) made out a very strong case. There was ample evidence on which a jury could find, reasonably, that the appellant was guilty of the 36 charges. The point made by Mr Button concerning the reception desk computer is no answer to the strength of the Crown case in regard to the 36 charges.

23 Once it is accepted that there was no missing link in the chain of evidence implicating the appellant, and that the verdicts of acquittal were not inconsistent with the verdicts of guilty, then it cannot be said that it was not open to the jury, on the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty: see M v The Queen (1994) 181 CLR 487. I would dismiss the first ground of appeal.

The adversarial character of the trial

24 Mr Button put the argument grounded on what was submitted to be the inquisitorial character of the trial on the basis that, irrespective of whether there had been a miscarriage of justice or material unfairness in the proceedings, the appeal should succeed.

25 An incident occurred during the trial that Mr Button submitted revealed his Honour’s state of mind and general attitude to his role. In the course of the testimony of a Crown witness, Ms McMahon, his Honour held a voir dire in the absence of the jury. Neither counsel had asked him to do this. Indeed, Mr Brazier, counsel for the appellant at the trial, objected.

26 In response to the objection, the judge said:

“I want to clarify this issue”.

He then proceeded to ask Ms McMahon a series of questions concerning the practices in the Centrelink office relating to the use of computers. The judge eventually explained:

“I initiated this voir dire because of evidence that the witness seemed to be about to bring out and I wanted to ascertain the relevance of it and that it didn’t raise prejudicial matters to [the appellant].”

27 I must say that the procedure so adopted by his Honour was quite extraordinary. He acted of his volition in holding the voir dire and did so over the objection of counsel for the appellant. The transcript of the voir dire extended over about three pages. Apart from one question from the prosecutor, to which there was an objection and to which the witness did not reply, during the voir dire the judge undertook all the questioning of the witness.

His Honour’s explanation for holding the voir dire is difficult to understand. A decision as to the relevance or otherwise of evidence is usually determined during the course of the trial upon objection by a party to the evidence. Relevance is not usually determined by means of a voir dire called at the judge’s own motion where only the judge questions the witness. Furthermore, in the circumstances of this case, it is not clear to me how the holding of the voir dire would have assisted the judge in preventing matters prejudicial to the appellant being brought out later in evidence.

28 Nevertheless, it cannot be said that the holding of the voir dire caused the appellant any prejudice. It took place in the absence of the jury and nothing that was said in the voir dire had any bearing on the case or any influence over it. It does, however, support the argument that, at times during the case, his Honour had an unusual attitude to his judicial duties.

29 His Honour intervened many times in the running of the trial by asking questions of the witnesses. He questioned Crown witnesses as well as the appellant and not only in cross-examination but in chief. Many of the interventions involved the asking of a small number of questions. Others, however, involved extended questioning where the interchange between his Honour and the witness concerned occupied two to three pages of the transcript.

30 In his written submissions Mr Button stated that the trial transcript showed that Kinchington DCJ asked 358 questions of the appellant “of which 261 went beyond clarification and other non-objectionable matters”. Without verifying the arithmetic, there can be no doubt that his Honour asked a vast number of questions while the appellant was being cross-examined. Some of these questions brought out weaknesses in the defence case. Some were indicative of a disbelief on the part of his Honour of evidence that had been given by the appellant.

31 The appellant’s evidence itself occupied some 220 pages of the transcript. The number of questions asked of the appellant by his Honour must be seen against this background. Ms Cinque, who appeared on behalf of the Crown in this appeal, pointed out that the trial lasted 19 sitting days and Mr Brazier had described the proceedings as a “difficult and complex trial”. As Ms Cinque observed, “there was a vast amount of evidence both testimonial and documentary involving the operation of the Centrelink computer system”. At times, the evidence given on technical issues was not easy to understand, and the points that counsel were attempting to elicit were difficult to bring out. Much of the judge’s questioning was prompted by this.

32 When the questions Kinchington DCJ asked are examined without reference to the context of the trial as a whole, it could be said that he asked an unusually large number (relative to the amount of questions a judge might customarily ask). But when regard is had to the trial as a whole, and measuring the number of questions his Honour asked against those asked by counsel, that number is relatively very small.

The judge’s interventions, did result in him, for differing periods, occasionally taking over the questioning of witnesses. Nevertheless they do not, by any stretch of the imagination, give rise to an impression that he assumed the overall conduct of the trial, as would be the case in an inquisitorial process.

33 Despite the number and character of the interventions, the form of the trial was plainly in accordance with Australian law and tradition. The holding of the voir dire at Kinchington DCJ’s own motion, during which he alone questioned the witness, was a departure from accepted practice. Nevertheless, the voir dire was short in duration and, as I have explained, made no difference to the course of the proceedings or the result. I do not accept that his Honour’s other interventions altered the essential character of the trial. I repeat that in comparison with the number of questions asked during the trial, overall, his Honour’s questions were not significant in quantity. I accept that the judge often intervened in the questioning of witnesses, and sometimes did so for unusually lengthy periods. Nevertheless, he left to counsel the general task of undertaking the examination in chief and the cross-examination of the witnesses. His Honour called no witnesses and did not direct the course of the proceedings. The essential nature of the trial was adversarial. I would reject the argument that the trial was an inquisitorial process.

The fairness of the trial: the legal principles

34 The conclusion to which I have come in regard to the adversarial character of the trial has, of course, no bearing on the merits of the argument that the interventions resulted in the appellant not having a fair trial. I turn now to that question.

35 The relevant principles were enunciated by Kirby ACJ in Galea vGalea (1990) 19 NSWLR 263 at 281 to 282. In summary his Honour stated:

“1. The test to be applied is whether the excessive judicial questioning … [has] created a real danger that the trial was unfair. If so, the judgment must be set aside …
2. [G]reater latitude in questioning and comment will be accepted where a judge is sitting alone …
3. … the appellate court must consider whether … the judge has … moved into counsel’s shoes and ‘into the perils of self-persuasion’ …
4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions …
5. It is also relevant to consider the point at which the judicial interventions complained of occur. …
6. The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change … The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements …”

36 There are other statements of principle in the authorities that are relevant to the circumstances of this case. The following are particularly pertinent:

(a) A miscarriage of justice may “involve an impairment of a party’s opportunity of putting his defence fully and fairly to the jury” ( R v Mawson [1967] VR 205 at 207 to 208).

(b) A miscarriage may “result from the jury being led to believe from the judge’s intervention that he is himself convinced of the guilt of the accused person” ( R v Mawson at 207 to 208). Trial judges should not create the impression by the way in which they question the accused that they have thrown their weight on the side of the prosecution: Mercer (1993) 67 A Crim R 91.

(c) It is for counsel to examine the witnesses “and not for the judge to take it on himself lest by so doing he appear to favour one side or the other” (per Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 63 to 65).

(d) A departure from the due and orderly processes of a fair trial may amount to a miscarriage of justice or may infringe the principle that criminal justice must not only be done but must also appear to be done: R v Mawson (at 207 to 208).

37 In R v Esposito (1998) 45 NSWLR 442 Wood CJ at CL conducted a careful examination of relevant authorities dealing with judicial intervention in criminal trials and concluded (at 472):

“The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of the ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.
As Hunt CJ at CL said in R v E (1995) 89 A Crim R 325 at 331:… ‘it is worth repeating what has been said by this Court on many other occasions. The task of restoring the credit of a Crown witness or of destroying the credit of the accused or witness should always be left by the judge to the Crown Prosecutor’” .

38 Notwithstanding the many judicial comments that have been made in regard to the issue, the boundary between permissible judicial intervention in a criminal trial and intervention of a kind that results in an unfair trial is not capable of clear definition. While the line may be narrow and the ice may be thin, the line is not bright and it is not always easy to determine whether the ice will hold. There are, indeed, circumstances in which a trial judge may legitimately intervene in a criminal trial.

39 In a proper case, intervention may be warranted for the purpose of preventing undue delay or to ensure that the parties focus on the crucial issues in the case, and a judge who does not so intervene may be criticised by an appellate court: see R v Wilson and Grimwade [1995] 1 VR 163. Whether the degree of intervention is appropriate is a matter of balance and judgment. In this case, however, the vast majority of the interventions by Kinchington DCJ were not designed to curtail the proceedings and they were not made for the purposes of managing the conduct of the trial.

40 It has long been accepted that a judge may intervene for the purpose of clarifying the evidence (see, for example, Yuill v Yuill [1945] 1 All ER 183). That is to say, clarifying it not only so that the judge understands it but so that the jury understands it as well.

41 In the course of clarifying the evidence, the judge may, involuntarily, but inevitably, assist either the prosecution or the defence. But I do not accept that that makes such an intervention improper. It is not the law that a judge must allow the evidence to be left in a state of incomprehensibility. We have long since departed from the “game” or “sporting” theory of justice; see the remarks of Hope JA in Bassett v Host [1982] 1 NSWLR 206 at 207 and Mahoney JA in GIO of NSW v Glasscock (1991) 13 MVR 521 at 530.

42 That having been said, it must be emphasised that intervention for the purpose of clarification does not necessarily require the judge to question the witness. The judge may readily achieve clarification by pointing out, at an appropriate time, usually in the absence of the jury, evidential ambiguities or obscurities to counsel. That is by far the most desirable course. It should be left to counsel, whenever possible, to deal with such matters. If the judge undertakes the task by questioning witnesses, there is the danger that he or she will assume, albeit temporarily, the role of counsel and become identified with the cause of one side or another. Unfairness can readily be the consequence.

43 If a judge does question a witness, and goes beyond mere clarification, the trial is not automatically unfair. In R vHopper [1915] 2 KB 431 Reading LCJ, in delivering the judgment of the English Court of Criminal Appeal, said (at 435):

“Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself”.

In Cain (1936) 25 Cr App R 204 Du Parcq J (in delivering the judgment of the English Court of Criminal Appeal) remarked:

“There is no reason why the judge should not from time to time interpose such questions as seem to him fair and proper”.

See also Gilson and Cohen (1944) 29 Cr App R 174 at 181.

44 Whether the judge’s questioning leads to a decision that the trial was unfair is a matter of balance, degree and judgment.

Was the trial unfair in this case?

45 The argument of the appellant was that the judge entered into the trial arena, disturbed the appellant’s counsel in the orderly presentation of his case, and assisted counsel for the prosecution by clearing up ambiguities in the Crown case and emphasising the points tending to establish the guilt of the appellant. Further, it was said, from time to time the judge made it clear to the jury that he did not believe the appellant and identified himself with the Crown case.

46 It appears from the transcript of the evidence that the questioning of the witnesses by his Honour fell into the following categories:

(a) Questions asked for the purposes of clarifying evidence the judge did not understand or thought that the jury would not understand.

(b) Questions asked for the purposes of clarification but which showed inconsistencies or other difficulties in the evidence given by the witness. In asking these questions, his Honour was trying, it seems, to get to the bottom of complex factual matters that had not been articulated with clarity.

(c) Questions asked after counsel for the appellant had objected, sometimes successfully, to the form of a question asked by counsel for the Crown. Generally, the judge when so questioning a witness, followed the line suggested by the objectionable question and pursued the inquiry for several questions.

(d) Questions that assisted the prosecution in bringing out its case more clearly. Usually, these questions did not go to issues that were the subject of serious credibility disputes. Generally, they were asked when the evidence given was vague or did not point up the relevant facts with lucidity. It could be said that these questions, too, were asked for the purposes of clarification.

(e) Questions that were asked of Crown witnesses that had the effect of bringing out, in summary form, the salient points of the witness’s testimony. The effect of this questioning was to clarify and make more effective the Crown case.

(f) Questions that were plainly in the nature of cross-examination. These questions were asked largely of the appellant, when he testified.

47 I appreciate that the foregoing comments are of a general nature. I do not propose to refer to each and every question asked by the judge. There would be little point in doing so as, over this lengthy trial, there were very many such questions, and extracting a small number would be likely to give a misleading impression. In R v Lewis (2001) NSWCCA 345 Sully J (with whom Priestley JA agreed), when dealing with a similar argument to that raised on behalf of the appellant in the present case, stated that he thought it “both preferable and sufficient” to deal with the matter by observing that he had read the entirety of the trial transcript and decided the issue on the basis of the impression that he had gained at the end of that exercise. It seems to me that in a case such as this, where a considerable body of evidence was led, where so many questions were asked by the judge, and where many were legitimate and more than a few were not, it is simply impracticable, in these reasons, to embark upon an analysis of each question.

48 I shall, however, deal with particular questions by Kinchington DCJ that Mr Button, in his supplementary written submissions, highlighted in bold print. I assume that, by so highlighting these particular questions, Mr Button was impliedly submitting that they were particularly egregious transgressions by the judge.

49 At Appeal Book 1010 Kinchington DCJ asked a question of the appellant which Mr Button described as being “designed to destroy the defence theory”. The question was “After you’d concluded the packing exercise would you speak to the logon ID that left the note? What was your practice to do?”

I do not accept the criticism made of this question. The question was not a leading one. It was in open form and was intended to ascertain the appellant’s practice on a particular aspect of computer use. The judge would not have known what the appellant’s answer would be. I do not think that the question was of an inherently harmful nature. It could readily fall into the category of clarification.

50 At Appeal Book 1057 the judge asked the appellant whether he had ever given anyone his password. The appellant replied in the negative. Mr Button submitted that this question was “very damaging”.

The appellant had previously testified in the course of his evidence in chief that he had not given his password to any other person. Therefore, the question could not be regarded as damaging to him on the ground that it sought to elicit information that was new. I accept, however, that, at the stage that it was asked, it tended to detract (to a limited degree) from the cogency of the defence. I do not accept, however, that it was “very damaging”.

51 At Appeal Book 1100, line 40, Kinchington DCJ asked the appellant whether he could recollect whether, on a particular day when his logon identification was used for a fraudulent transaction, he was away from his terminal. Mr Button submitted that this was a “telling” question.

The appellant’s answer was that he could not recollect whether he was away from the terminal or not. I do not accept that the question was “telling”.

52 At Appeal Book 1124, line 25, the judge asked the appellant whether he had a similar problem to those employees who could not commence work at 7.00 am because they had to take their children to school. Mr Button described this question as “forensically devastating”.

The question assumed that the appellant did not have to take children to school and, accordingly, could get to work at 7.00 am each morning so as to be in a position, potentially, to effect the fraudulent transactions. While this question did not assist the appellant, it is an overstatement to describe it as “forensically devastating”.

53 At Appeal Book 1144 the following exchange took place:

“Q. That EBT card was approved at 7.15.37 seconds, but at this time you are unable to say who was in the office at that time?
A. It would be impossible to tell.
Q. Your records indicate I think that you signed on at seven o’clock that day.
A. That would probably correct, yes.”


Mr Button submitted that, with these two questions, “The trial judge elegantly damages very badly indeed the appellant’s evidence and the defence case as a whole”.

These questions, however, merely elicited evidence that had already been given. It is true that by asking them the judge emphasised material that indicated that the appellant could well have been the perpetrator of the relevant fraudulent transaction. Once more, however, it is an overstatement to say that these questions damaged “very badly indeed” the defence case. The evidence previously given had already damaged the case.

54 At Appeal Book 850 the judge asked a series of questions commencing with the following:

“Would you pack on something not knowing who you were packing on or checking”.


Mr Brazier objected and submitted that this was a “further cross-examination of the witness”. His Honour ignored the objection and proceeded.

The questions so asked were undoubtedly not designed to clarify material. They were questions that could properly be categorised as cross-examination. In my view they were unfair and by asking them the judge transgressed the bounds of his obligation to conduct the trial in a neutral and impartial manner.

55 Having dealt with the individual questions to which Mr Button gave particular emphasis, I return to my general impressions of the questioning conducted by Kinchington DCJ and the overall effect of his interventions.

56 Some of the difficulties that Kinchington DCJ sought to clarify were of a kind where obscurities could be (and were) resolved by a one or two brief questions. I do not think that those questions were improper. There were instances, however, where the obscurities were more substantial, and where several questions were needed to clarify them. I think those questions should not have been asked by the judge. The difficulties he had should have been resolved by his Honour directing the attention of counsel to them in the way I have earlier suggested.

57 In some instances, the judge disturbed the flow of the defence cross-examination and hampered Mr Brazier in his cross-examination. I do not think, however, that – at any stage - the prejudice was of any real significance.

58 In some instances the jury could have gained the impression from the manner of questioning and the content of the questions that Kinchington DCJ was sceptical about certain aspects of the defence case. Such an attitude on the part of the trial judge is not unknown in our system and the mere fact of its existence does not give rise to an unfair trial. As with all the pertinent factors in this case, issues of degree arise. It was undesirable and inappropriate for the judge to allow his views to become apparent. But I am not persuaded that the extent to which this occurred gave rise to an unfair trial.

59 His Honour at times became impatient with counsel (both for the prosecution and the defence), and in some instances where questions were not properly asked, but where the thrust of the questions was apparent, he simply took over the questioning, apparently in a desire to shorten the proceedings. There is little to commend this practice, and occasionally his Honour’s questioning worked to the prejudice of the appellant. In the particular circumstances of the case, however, I do not think that that prejudice resulted in significant unfairness.

60 The practice of the judge in, at times, bringing out the salient points of the evidence of Crown witnesses, either during the course of examination in chief or after re-examination, was highly undesirable. I accept that to an extent the appellant was prejudiced thereby, but in the particular circumstances the extent of the prejudice was not so significant as to render the trial unfair.

61 Mr Brazier objected several times to questions asked by Kinchington DCJ. He asked the judge to stop “cross-examining” on more than one occasion. His Honour considered the term “cross-examining” to be offensive and asked that it be withdrawn. At one point Kinchington DCJ explained that he had asked certain questions to clarify the evidence as he did not understand it. Despite the several objections by counsel for the appellant, the judge persisted. Indeed, it appears, at times, that an objection by counsel would incite his Honour to further bouts of extended questioning. This was plainly inappropriate. Mr Brazier, however, did not apply for the termination of the trial and the discharge of the jury on the grounds of the judge’s conduct.

62 In my view, several of Mr Brazier’s objections to his Honour’s questioning were without substance. There can be no doubt, however, that on some occasions, as I have noted, the judge’s questioning went beyond clarification of the evidence and some of his Honour’s interventions should not have been made. But I have concluded that these transgressions, on balance, did not result in significant prejudice sufficient to result in an unfair trial.

63 On reading the transcript I have had real misgivings about some of the judge’s questions. Nevertheless, taking into account all the matters to which I have referred, individually and collectively, I am not persuaded that there has been a miscarriage of justice. I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

64 Kinchington DCJ sentenced the appellant to a term of three years and nine months imprisonment with a non-parole period of two years and six months. His Honour made a reparation order in favour of the Commonwealth of $20,190.

65 The maximum penalty provided under s 29B of the Crimes Act for the offences of which the appellant was convicted was two years imprisonment and/or a fine of $13,800.

66 At the sentencing hearing, the Crown submitted that his Honour was entitled to impose a single sentence based upon the total of the penalties available for all the 36 offences of which the appellant was convicted. His Honour accepted this submission and proceeded to so sentence the appellant.

67 The Crown now accepts that the submissions so made to his Honour were wrong and were contrary to R v Edward Spencer Pearce (2001) NSWCCA 447 in which this Court (citing R v Bibaoui (1996) 87 A Crim R 527 and R v Jackson (1998) 104 A Crim R 196) held that the imposition of a single sentence for a number of offences was impermissible where the Crown has proceeded by way of indictment.

68 In the circumstances this Court is required to re-sentence the appellant. In so doing the Court is required to pay due weight to the overall sentence imposed by Kinchington DCJ.

69 The applicant, who as I have mentioned represented himself in the application for leave to appeal against sentence, filed two sets of written submissions. I shall deal with the matters raised in those submissions.

70 The appellant pointed out that his wife suffered from medical problems that were relatively serious. She is an insulin dependent diabetic. She was described by a treating doctor as being “in a very disabled state”. She experienced insomnia and “self-recriminatory thoughts”. The appellant asserted that his wife required “a lot of care and attention” and this was borne out by medical reports.

71 Kinchinton DCJ referred expressly to the health of the appellant’s wife and observed that “she is not in the best of health and is undoubtedly very dependent upon the offender”. His Honour expressly noted that “a custodial sentence would undoubtedly impact on his wife”.

72 Despite taking into account the matters to which the appellant has referred, the judge considered that the offences were so serious that they required the imposition of a custodial sentence. I am not persuaded that his Honour erred in this respect.

73 The appellant submitted that Kinchington DCJ gave insufficient weight to his pre-existing medical condition. In particular, the appellant submitted that the judge had not accorded adequate weight to the conclusions of Dr Canaris which were to the following effect:

“I would respectfully suggest to the Court that there are strong psychiatric, social and for that matter physical grounds in my opinion to consider non-custodial options as far as possible. Any of these factors taken in isolation would not suffice to draw me to that conclusion. All of them taken together, however, cause me very considerable concern”.

74 The appellant referred to other medical conditions from which he suffered. These include renal problems and encephalopathy. Further, on 19 February 2001 he fractured his fibula. These matters were referred to in a report by Dr Lim and the appellant complained that his Honour made no specific mention of the contents of Dr Lim’s report.

75 Kinchington DCJ however did make express reference to the medical reports of Dr Canaris and Dr Lim. He referred to Dr Canaris’ opinion that the appellant “by any standard is a very sick man” and that the appellant had “a substantially shortened lifespan”. His Honour recognised that the appellant would find custody a difficult and onerous experience. He stated that he took into account the fact that the appellant’s “psychological and medical health and age may increase the hardships that he will undergo while in custody”.

76 In the circumstances Kinchington DCJ made no error in failing to have regard to the appellant’s medical condition.

77 His Honour said:

“[T]his was a well conceived and blatant episode of fraudulent conduct committed by the offender on the Commonwealth over the period in question in respect of which conduct the offender has shown no contrition and because in my opinion there are no special circumstances apart from his health which I have taken into consideration which would allow me to approach this sentencing process in any other way.”

78 I am not persuaded that the approach of the judge was wrong. It was open to his Honour to conclude that the offences committed were so serious as to require a custodial sentence of the order of that imposed.

79 The appellant made other submissions relating to the sentence that, in a sense, were directed more at the merits of the jury’s verdict than the sentence itself. These submissions challenged his Honour’s finding that the facts disclosed a course of criminal conduct which continued over a period of approximately four and a half months, a course of conduct carried out in a calculated manner that would have required planning. In my view these findings were open to the judge and I am not persuaded that they were wrong.

80 The appellant submitted that the overall sentence imposed was manifestly excessive. In my opinion there is no substance in this submission. As Kinchington DCJ observed, the criminal conduct involved a considerable degree of planning over a period of four and a half months. Serious breaches of trust took place. In my view, the sentence imposed was within a proper sentencing discretion.

81 In view of the error in sentencing conceded by the Crown, I would uphold the application for leave to appeal against sentence and uphold the appeal. I would set aside the sentence imposed by Kinchington DCJ. I would impose the following sentences in lieu of that sentence.

82 I would sentence the appellant to nine months imprisonment on each of the 36 counts in respect of which he was found guilty. The sentences in respect of counts 40, 5, 34, 37 and 22 should be cumulative upon each other. The sentences in respect of counts 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 38 and 39 should be concurrent with the sentence imposed in respect of count 22.

83 The sentence imposed in respect of count 40 should date from 23 March 2001, the date fixed by Kinchington DCJ for the sentence imposed by him. The sentence imposed in respect of count 5 should date from 23 December 2001, that in respect of count 34 from 23 September 2002, that in respect of count 37 from 23 June 2003, and that in respect of count 22 from 23 March 2004.

84 The aggregate of the head sentences referred to in the previous paragraph would therefore be three years and nine months. I propose that, pursuant to s 19AB(1)(d) of the Crimes Act, a non-parole period of two years and six months be fixed. Accordingly, the effect of the sentences would be the same as the overall sentence imposed by Kinchington DCJ. That is to say, the appellant would serve an overall term of imprisonment of three years and nine months with a non-parole period of two years and six months and he would be eligible to be released on parole on or after 22 September 2003. As Kinchington DCJ observed, whether the appellant will be so released will depend upon the Parole Board which no doubt will take into consideration his behaviour while in custody and any efforts he has made or makes towards his own rehabilitation while in custody.

85 The reparation order made by Kinchington DCJ should remain unchanged.

86 SULLY J: I agree with Ipp AJA.

87 BELL J: I agree with Ipp AJA.

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