R v Ton That Quynh Du
[1990] TASSC 70
•24 October 1990
Serial No 69/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Ton That Quynh Du [1990] TASSC 70; A69/1990
PARTIES: R
v
TON THAT QUYNH DU
FILE NO/S: 72/1989
DELIVERED ON: 24 October 1990
JUDGMENT OF: Wright J
Judgment Number: A69/1990
Number of paragraphs: 33
Serial No 69/1990
List "A"
File No 72/1989
R v TON THAT QUYNH DU
REASONS FOR JUDGMENT WRIGHT J
24 October 1990
A number of interesting points have arisen for determination in this trial, and I will commence by reviewing something of the history of the case.
The accused has been indicted upon 24 counts of stealing Commonwealth property contrary to s71 of the Crimes Act 1914. The prosecution has closed its case without applying to amend or to add alternative counts to the indictment.
Mr McDermott for the defence submits no case to answer in respect of all charges. He makes this submission on the basis that the prosecution may have shown that the accused has either stolen or fraudulently misappropriated Commonwealth funds, but it has not shown which of those offences, he has committed. Mrs Singh all but conceded this point yesterday afternoon, as I understood her, and indeed suggested that the preponderance of the evidence suggested that fraudulent misappropriation rather than larceny had taken place.
However, this morning she re–opened her submissions in this respect and put to me that upon Counts 6, 7, 9, 10, 13, 17, 20, 22, 23 and 24 there was evidence indicating that moneys had been given to the accused by other Commonwealth employees in his Department which he may have misappropriated on these specific occasions.
However, there was no evidence which she could point to which indicated positively that any part of the funds misappropriated on those occasions consisted of those moneys which the accused had obtained from the other Commonwealth public servants.
Consequently I am still of the view that Mr McDermott's point is valid and that there is no rational basis upon which the jury could conclude, beyond reasonable doubt, that the accused committed theft rather than some other species of misappropriation on any individual occasion.
Section 71 of the Crimes Act recognises that larceny and fraudulent misappropriation are two separate and distinct offences, and indeed any student of criminal law will appreciate the historical distinction between theft and embezzlement at common law, and the difficult case law that that distinction has engendered over the years.
Unlike the Tasmanian Criminal Code and the Larceny Act 1915 (United Kingdom), the Commonwealth Crimes Act provides no statutory mechanism for the jury to convict of fraudulent misappropriation upon an indictment for stealing. For the jury to do this in these proceedings it would be necessary for the indictment to contain an allegation of fraudulent misappropriation as an alternative to each count of stealing. This procedure is frequently and necessarily used in State prosecutions in those cases in which the Crown can foresee that an offence other than that charged in the indictment, or one of its statutory alternative offences, may be established by the evidence.
I am in agreement with Mrs Singh's original submission that the evidence in this trial tends to suggest fraudulent misappropriation rather than stealing; but even if this is not the way in which everyone would view the evidence, it is nonetheless true that there is no preponderance of evidence or legitimate inference arising therefrom which, at this stage of proceedings, would entitle the jury to conclude beyond reasonable doubt that the accused was guilty of stealing.
There are no Commonwealth provisions such as s181 of the Criminal Law Consolidation Act (South Australia) which enabled Mr Justice Cox to take the course which he did in Harper's case (1984) 14 A Crim R at p414 to which I was referred by counsel yesterday; and, as I have already said, there is no statutory alternative on which the accused may be convicted under the provisions of the Commonwealth Crimes Act.
It seems to me, therefore, that upon the indictment as it stands in respect of all 24 counts, the accused could not be lawfully convicted because there is insufficient evidence for a reasonable jury, properly directed, to conclude that he stole the money in question rather than dealing with it in some other, albeit unauthorised or dishonest, way.
Consequently it seems to me that, even though the only sensible alternative on the case thus far may be that the accused fraudulently misappropriated the funds, the defence submission of no case must be upheld.
The question thus arises whether I have power, and if I have, whether I should exercise that power to allow the Crown to amend to allege fraudulent misappropriation as an alternative to each of the 24 counts in the indictment. As the decision in Harper, to which I have already referred, demonstrates it would be inappropriate to simply substitute fraudulent misappropriation for stealing if an amendment is to be allowed because it would be absurd, and an affront to common sense, to contemplate the possibility of the accused subsequently giving evidence and telling the jury that he actually stole the money rather than misappropriated it, thereby securing for himself an absolute acquittal on the amended indictment because it established the commission of the original crime rather than that alleged in the amendment. Both counsel, I think, concede the validity of this point which was discussed in the course of argument.
There are a number of old Australian authorities which deal with the question of how and when a court should exercise its power to amend in a criminal trial. Two of these cases were relied upon by Mr McDermott yesterday afternoon. They were TheKing v Thompson (1925) 42 WN(NSW) 71 and TheQueen v Laird 14 LR(NSW) 354. The section discussed in Thompson was s365 of the Crimes Act (New South Wales), which is similar in many respects to s5 of the Indictments Act 1915 (United Kingdom). In Thompson, the Court of Appeal doubted whether the statutory provisions before it permitted the Court to substitute a fresh charge for that contained in the original indictment irrespective of when that application was made. Mr McDermott submits that this case is authority for the proposition that a completely new count cannot be added to an existing indictment according to a proper interpretation of the enabling legislation which we have discussed; but I think that that seriously overstates the position. There is, to my mind, a very useful and persuasive line of authority in the recent English cases in which the enabling provisions of the Indictments Act 1915 have been discussed at some length. From the defence point of view, the high water mark of these decisions appears to have been reached in TheQueen v Harden [1963] 1 QB 8 where the Court of Criminal Appeal held that an amendment that went beyond a correction of a misdescription and substituted a new offence could not be made after arraignment. However this proposition was expressly disapproved by a subsequent Court of Appeal decision, The Queen v Johal and Ram (1972) 56 Cr App R 348 where it was said by the whole court in a joint judgment at p353:
"In the judgment of this Court, there is no rule of law which precludes amendment of an indictment after arraignment, either by addition of a new count or otherwise."
The case then before the court involved the addition of four counts to the indictment after arraignment but before a jury had been empanelled, and it is not without importance to note that the court also said:
"... this Court shares the view expressed in some earlier cases that amendment of an indictment during the course of a trial is likely to prejudice an accused person. The longer the interval between the arraignment and amendment, the more likely it is that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby."
Johal and Ram's case was followed in TheQueen v Radley (1974) 58 Cr App R 394 where an amendment by the trial judge allowing the addition of three counts at the end of the prosecuting counsel's opening address was upheld. The Lord Chief Justice observed:
"The tendency in the last ten years has been to relax the technicalities of criminal pleading, bearing in mind that injustice to the defendant from any proposed amendment must be refuted."
He also expressly endorsed the passages from Johal and Ram which I have already cited.
In The Queen v Harris (1975) 62 Cr App R where an amendment was made at the close of the prosecution case and after defence counsel had made an unsuccessful "no case" submission, that course was upheld by the Court of Appeal. However, the court was at pains to point out that the amendment did not involve the substitution of a different offence for that originally charged but merely involved a correction of the description of that offence.
As to the timing of the application, the court said this at p32:
"... it may very well be that in very many circumstances an application to amend as late as the close of the case for the prosecution would be so likely to involve injustice to an accused person that such an application in many instances might be refused. In this case, we can see no injustice which could have resulted ..."
Smith (1950) 34 Cr App R 168 was also a case in which an amendment was made at the close of the prosecution case, but once again it is to be noted that the amendment did not involve the substitution or addition of a new charge, ie a charge of a separate and distinct crime.
I note in passing that Johal's case was followed in TheQueen v Johnson [1974] 2 NZLR 660 by the New Zealand Court of Appeal. However, it seems to me that, as the New Zealand court acknowledged, much will often depend upon the words in the enabling statutory provision in determining just what power of amendment the court actually possesses.
Somewhat belatedly this problem arose as a live issue in the present trial because of the specific wording of s21A(1) of the Crimes Act which, it is acknowledged, is the only source of the power to amend the present indictment.
"21A(1) If at the hearing of any indictment, information or summons any objection is taken for an alleged defect therein in substance or in form, or if objection is taken to any variance between the indictment, information or summons and the evidence adduced at the hearing in support thereof, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined."
It will be seen at once when this provision is compared with s365 of the Crimes Act (New South Wales), s5(1) of the Indictments Act 1915 (United Kingdom) or s335 of the Crimes Act 1961 (New Zealand) as well as s326 of the Tasmanian Criminal Code that there is a material difference between all of these sections and s21A of the Crimes Act. All of the other statutes state as the prerequisite for exercising the power to amend that the defect or error should "appear to the trial judge". How it should so "appear" is not specified in any of those statutes and consequently it would seem to be immaterial how the issue arises for the court's determination.
On the other hand, in s21A of the Commonwealth Act it is quite explicitly provided that the power to amend may only be exercised "if objection is taken" either to an alleged defect in substance or form in the indictment or to any variance between the indictment and the evidence adduced in support thereof.
In my view, despite the earnest submissions made to the contrary by Mrs Singh, it is difficult to see how Mr McDermott's submission of "no case" can be regarded for the purposes of her application to amend as an objection taken to the indictment. On the contrary, as Mr McDermott has pointed out, he concedes that the indictment is perfectly adequate and valid in its present form. All he submits is that the evidence has not established the allegation contained therein.
Why the amending power is circumscribed as it is in s21A is not for me to speculate, but it does seem to me that the words used have an important, indeed a crucial, bearing upon the question which I have to determine. As Turner J said in Harema v The Queen [1971] NZLR at p149:
"The jurisdiction to alter the indictment is only that given by statute."
In my opinion, because the Crown's application to amend does not arise out of an "objection", there is no power under s21A which I can exercise. I was referred in the course of debate to the decision of Pincus J in Dillon v Chin (1988) 84 ALR 457 at p463 where he observed that s21A of the Crimes Act bears some similarity to s1 of the Summary Jurisdiction Act 1848 (United Kingdom) where there is a provision in the following terms:
"Provided also, that no objection shall be taken or allowed to any information, complaint, or summons, for any alleged defect therein in substance or in form, or for any variance between such information, complaint, or summons and the evidence adduced on the part of the informant or complainant at the hearing of such information or complaint, as herein–after mentioned; but if any such variance shall appear to the justice or justices present and acting at such hearing to be such that the party so summoned and appearing has been thereby deceived or misled, it shall be lawful for such justice or justices, upon such terms as he or they shall think fit, to adjourn the hearing of the case to some future day." [My emphasis.]
It will be seen from that that the terminology, although it has some superficial similarity to the English legislation, really differs quite markedly from it, and I suppose the important thing to note in the current context is, that so far as I am able to ascertain, there have been no English cases which have been concerned with this question of determining what is an "objection" within the meaning of that section. Certainly I have been referred to no such authorities in respect of s21A of the Crimes Act.
At all events, as I say, coming as I do unaided by specific authority on this question, it seems to me that it cannot be said that this issue has arisen as a consequence of any "objection" and that consequently the power contained in s21A cannot be utilized.
Having stated that conclusion, that is really enough to dispose of the present application in the accused's favour. However, I think it would be worthwhile if I were to go on to express the view that I would take in the event that I am wrong in that last-mentioned conclusion and, assuming that I do, in fact, have some power which could be exercised under that section. I must assume, I think, and Mrs Singh seems to concede this, and it is supported by the authorities that I have referred to already, that it is for the prosecution to negative any injustice rather than for the accused to establish the prospect of injustice if I am to amend in the way that has been sought of me. I refer also, in this context, to TheQueen v Thomas (1983) CLR 619 which is set out in the 42nd edn of Archbold and was referred to by Mr McDermott this afternoon.
I have given this overall question some anxious consideration over the last two days and the following observations seem to me to be appropriate. It seems to me that the case which the accused has to meet is essentially the same, notwithstanding the fact that the offences of stealing and fraudulent misappropriation contain distinct and separate legal elements. In the circumstances of this case, it seems to me that the distinction between the two offences depends in a practical sense upon the accused's state of mind when he initially received the funds in question and how he dealt with them during the comparatively short interval that those funds were in his possession between the moment of receipt and the time at which he should have banked the moneys. This time was referred to in Mr Morell's evidence.
These appear to me to be fairly narrow issues and matters which are singularly within the accused's personal knowledge. I can't see how it would be necessary for any prosecution witnesses to be recalled, but if that eventuality did arise of course, and I were disposed to allow the amendment, I imagine that any evidence so called would be fairly brief.
On the other hand, of course, if Mr McDermott had chosen to call no evidence rather than submitting "no case", the amendments now sought would never have been considered by the Crown until perhaps Mr McDermott had closed his case, electing perhaps to call no evidence and had then invited me to direct the jury to acquit on the basis of the Crown's failure to discharge its onus of proof. It seems to me that that is a material consideration.
All in all, it seems to me that the way in which the case has developed and in light of the matters put to me by Mr McDermott, there has emerged a distinct possibility that the accused could be prejudiced in his defence and that he may consequently suffer an injustice in the sense in which that concept has been discussed in the cases. Consequently, whilst not affirmatively satisfied that the accused would suffer such an injustice, I am not persuaded that allowing the introduction of additional counts would not create such an injustice to the accused, and consequently I would exercise my discretion against allowing the Crown's application to add further counts to the indictment.
As a consequence of what I have just said, it seems to me that the appropriate course now is that the jury should be directed to acquit on the 24 counts in the indictment because I uphold the no case submission in respect of all of them, and, as I am not going to allow the amendments sought to the indictment to introduce the alternative criminal offence, it seems to me that that will be an end to the case.
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