Roberts v The State of Western Australia

[2005] WASCA 37

ROBERTS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 37

Reported Decision:	(2005) 29 WAR 445
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 37
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:44/2004	Heard:	20 & 21 OCTOBER 2004
Coram:	TEMPLEMAN J MCLURE J JENKINS J	Delivered:	8/03/05
No of pages:	51	Judgment Part:	1 of 1
Result:	Appeal allowed Convictions quashed Verdict and judgment of acquittal
Category:	A
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Parties:	SALLY MARIE ROBERTS THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Forging and uttering Matrimonial use of cheque account for household purposes Jury not directed on honest belief in entitlement to the property or on absence of fraud if expenses inevitable Adequacy of direction on implied authority Evidence Findings in civil trial on same issues as in criminal trial Whether available for cross-examination by defence in criminal trial Issue in criminal trial of authority to sign cheques Whether account holder's practice with third party prejudicial or admissible as evidence of habit Criminal procedure Issue in criminal trial already decided in civil trial Whether abuse of process from possible conflicting verdicts on different standards of proof or because continuance of criminal proceedings unjustifiably vexatious and oppressive Juries Whether mandatory to inform jury that majority of 10 sufficient for verdict Whether appropriate to order re-trial
Legislation:	Corporations Act 2001 (Cth) Criminal Code (WA), s 22, s 24, s 419(2), s 473(1), s 689(2) Evidence Act 1906 (WA) Evidence Act 1995 (Cth), s 91, s 92
Case References:	Adler v Director of Public Prosecutions (2004) 51 ACSR 1 Baldock v The Queen, unreported; CCA SCt of WA; Library No 930232; 30 April 1993 Bardsley v The Queen [2004] WASCA 251 Bugg v Day (1949) 79 CLR 442 Buttsworth v The Queen (2004) 29 WAR 1 Cooke (1987) 84 Cr App R 286 Gauci v Federal Commissioner of Taxation (Cth) (1975) 135 CLR 81 Goldsmith v Sandilands (2002) 76 ALJR 1024 Gray v Motor Accident Compensation (1998) 196 CLR 1 Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587 Humphries v The Queen (1987) 75 ALR 31 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Ilich v The Queen (1987) 162 CLR 110 Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961 MacLeod v The Queen (2003) 214 CLR 230 McMahon v Gould (1982) 7 ACLR 202 MFA v The Queen (2002) 213 CLR 606 Mickelberg v The Director of the Perth Mint [1986] WAR 365 Molina v Zaknich (2001) 24 WAR 562 National Bank of Commerce v National Westminster Bank [1990] 2 Lloyd's Rep 514 Paterson v The Queen (2004) 28 WAR 223 Pearce v Paskov [1968] WAR 66 Peters v The Queen (1998) 192 CLR 493 Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 PT Garuda Indonesia Pty Ltd v Grellman (1994) 48 FCR 252 R v Busby (1981) 75 Cr App R 79 R v Carroll (2002) 213 CLR 635 R v Edwards [1991] 1 WLR 207 R v Ferri [2002] SASC 217 R v Guney [1998] EWCA Crim 719 R v Jellard [1970] VR 802 R v Kastratovic (1985) 42 SASR 59 R v Liddy (2002) 81 SASR 22 R v Murphy (1985) 4 NSWLR 42 Rich v Australian Securities and Investments Commission [2004] HCA 42 Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 Roberts v Roberts [2003] FCWA 18 Rogers v The Queen (1994) 181 CLR 251 S v Damalis (1984) 2 SA 105 Smith v Selwyn [1914] 2 KB 98 Spies v The Queen (2000) 201 CLR 603 Walden v Hensler (1987) 163 CLR 561 Walton v Gardiner (1993) 177 CLR 378 Welham v Director of Public Prosecutions [1961] AC 103 Williams v Spautz (1992) 174 CLR 509 Wilson & Grimwade v The Queen [1995] 1 VR 163 Chinnery v Hansen (2001) 125 A Crim R 426 Davies & Cody v The King (1937) 57 CLR 170 Harris v Tippett (1811) 2 Camp 637; (1811) 170 ER 1277 Holcombe v Hewson (1810) 170 ER 1194 Hollingham v Head (1858) 27 LJCP 241 Lowndes v The Queen (1999) 195 CLR 665 McKenzie v The Queen (1996) 190 CLR 348 R v Cooke (1987) 84 Crim App R 286 R v Dodge & Harris [1982] 1 QB 416 R v Edwards [1996] 2 Cr App R 345 R v Hassett & Calder [1975] 1 NZLR 30 R v Hobart Magalu [1974] PNGLR 188 R v Lucas [1993] Crim L R 599 R v Scott [1994] Crim L R 947 Williams & Smith [1995] 1 Cr App R 74 Ziems v Prothnotary of the Supreme Court of NSW (1957) 97 CLR 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ROBERTS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 37 CORAM : TEMPLEMAN J

MCLURE J
JENKINS J

HEARD : 20 & 21 OCTOBER 2004 DELIVERED : 8 MARCH 2005 FILE NO/S : CCA 44 of 2004

CCA 45 of 2004

BETWEEN : SALLY MARIE ROBERTS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WISBEY DCJ

Citation : R v ROBERTS

File No : IND 979 of 2001

(Page 2)

Catchwords:

Criminal law - Appeal against conviction - Forging and uttering - Matrimonial use of cheque account for household purposes - Jury not directed on honest belief in entitlement to the property or on absence of fraud if expenses inevitable - Adequacy of direction on implied authority

Evidence - Findings in civil trial on same issues as in criminal trial - Whether available for cross-examination by defence in criminal trial - Issue in criminal trial of authority to sign cheques - Whether account holder's practice with third party prejudicial or admissible as evidence of habit

Criminal procedure - Issue in criminal trial already decided in civil trial - Whether abuse of process from possible conflicting verdicts on different standards of proof or because continuance of criminal proceedings unjustifiably vexatious and oppressive - Juries - Whether mandatory to inform jury that majority of 10 sufficient for verdict - Whether appropriate to order re-trial

Legislation:

Corporations Act 2001 (Cth)

Criminal Code (WA), s 22, s 24, s 419(2), s 473(1), s 689(2)
Evidence Act 1906 (WA)
Evidence Act 1995 (Cth), s 91, s 92

Result:

Appeal allowed

Convictions quashed
Verdict and judgment of acquittal

Category: A

Representation:

Counsel:

Appellant : Mr M J McCusker QC & Dr J J Edelman
Respondent : Mr P J Urquhart & Ms A J Burrows

Solicitors:

Appellant : Andree Horrigan
Respondent : State Director of Public Prosecutions

(Page 3)

Case(s) referred to in judgment(s):

Adler v Director of Public Prosecutions (2004) 51 ACSR 1
Baldock v The Queen, unreported; CCA SCt of WA; Library No 930232; 30 April 1993
Bardsley v The Queen [2004] WASCA 251
Bugg v Day (1949) 79 CLR 442
Buttsworth v The Queen (2004) 29 WAR 1
Cooke (1987) 84 Cr App R 286
Gauci v Federal Commissioner of Taxation (Cth) (1975) 135 CLR 81
Goldsmith v Sandilands (2002) 76 ALJR 1024
Gray v Motor Accident Compensation (1998) 196 CLR 1
Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587
Humphries v The Queen (1987) 75 ALR 31
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Ilich v The Queen (1987) 162 CLR 110
Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961
MacLeod v The Queen (2003) 214 CLR 230
McMahon v Gould (1982) 7 ACLR 202
MFA v The Queen (2002) 213 CLR 606
Mickelberg v The Director of the Perth Mint [1986] WAR 365
Molina v Zaknich (2001) 24 WAR 562
National Bank of Commerce v National Westminster Bank [1990] 2 Lloyd's Rep 514
Paterson v The Queen (2004) 28 WAR 223
Pearce v Paskov [1968] WAR 66
Peters v The Queen (1998) 192 CLR 493
Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533
PT Garuda Indonesia Pty Ltd v Grellman (1994) 48 FCR 252
R v Busby (1981) 75 Cr App R 79
R v Carroll (2002) 213 CLR 635
R v Edwards [1991] 1 WLR 207
R v Ferri [2002] SASC 217
R v Guney [1998] EWCA Crim 719
R v Jellard [1970] VR 802
R v Kastratovic (1985) 42 SASR 59
R v Liddy (2002) 81 SASR 22
R v Murphy (1985) 4 NSWLR 42
Rich v Australian Securities and Investments Commission [2004] HCA 42


(Page 4)

Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
Roberts v Roberts [2003] FCWA 18
Rogers v The Queen (1994) 181 CLR 251
S v Damalis (1984) 2 SA 105
Smith v Selwyn [1914] 2 KB 98
Spies v The Queen (2000) 201 CLR 603
Walden v Hensler (1987) 163 CLR 561
Walton v Gardiner (1993) 177 CLR 378
Welham v Director of Public Prosecutions [1961] AC 103
Williams v Spautz (1992) 174 CLR 509
Wilson & Grimwade v The Queen [1995] 1 VR 163

Case(s) also cited:

Chinnery v Hansen (2001) 125 A Crim R 426
Davies & Cody v The King (1937) 57 CLR 170
Harris v Tippett (1811) 2 Camp 637; (1811) 170 ER 1277
Holcombe v Hewson (1810) 170 ER 1194
Hollingham v Head (1858) 27 LJCP 241
Lowndes v The Queen (1999) 195 CLR 665
McKenzie v The Queen (1996) 190 CLR 348
R v Cooke (1987) 84 Crim App R 286
R v Dodge & Harris [1982] 1 QB 416
R v Edwards [1996] 2 Cr App R 345
R v Hassett & Calder [1975] 1 NZLR 30
R v Hobart Magalu [1974] PNGLR 188
R v Lucas [1993] Crim L R 599
R v Scott [1994] Crim L R 947
Williams & Smith [1995] 1 Cr App R 74
Ziems v Prothnotary of the Supreme Court of NSW (1957) 97 CLR 279


(Page 5)

1 TEMPLEMAN J: The appellant was tried by Judge and jury in the District Court on 89 counts of forging cheques and an equal number of counts of uttering those cheques. The appellant was convicted on 41 counts of forgery and of uttering the forged cheques. She was sentenced to terms of imprisonment amounting to two years, each term being suspended for two years.

2 The appellant now appeals against her convictions. In case that appeal should be unsuccessful, she seeks leave to appeal against the sentences imposed on her. The hearing of that application was adjourned to await the outcome of the appeal.

Background

3 The appellant is the former wife of Russell Walter Roberts. Between 1995 and 2000, while married to Mr Roberts, the appellant signed his name on a number of cheques drawn on his BankWest account, and altered the amounts payable on other such cheques. It was alleged against the appellant that in signing or altering the cheques in this way, she had forged them; and that in presenting the cheques for payment, she had uttered them. The total amount of the cheques was some $143,990.

4 The prosecution case was that the appellant had never been authorised by Mr Roberts to sign his name on cheques, or to alter cheques he had signed. That was the evidence of Mr Roberts, who said also he "never dreamt for one minute" that the appellant was writing cheques on his account (TS 635): he did not look at this bank statements in any detail, only noting the final balances (TS 630-1).

5 The defence case was that at all material times, the appellant was authorised by her husband to act as she did.

6 The appellant's evidence was that she and Mr Roberts were married in 1994. It was then her practice to prepare cheques for his signature. On one occasion, late in 1994, Mr Roberts went to his office without signing a cheque the appellant had prepared for him. The appellant telephoned Mr Roberts who told her to sign the cheque in his name. According to the appellant, he said it would be in order to do so, because the bank never checked his signature. The appellant later suggested that she should become a signatory to Mr Roberts' account, but he said it was unnecessary (TS 931-3).

7 The appellant said that in the belief that she was authorised to do so, she signed many hundreds of cheques during the course of the marriage

(Page 6)

(TS 933). The appellant altered cheques also. She said she believed this practice was within her authority (TS 948). It was the appellant's evidence that the cheques she signed and altered were used for the payment of what were, in substance, household expenses (TS 939-944). These expenses were substantial. Mr Roberts was a wealthy man; they lived well and he expected the appellant to look and dress to a high standard (TS 926).

8 In relation to 29 of the counts of forgery, the appellant admitted that she not only altered the cheques, she also falsified the cheque butts. They either showed amounts considerably less than the amounts on the cheques, or they nominated payees different from those shown on the cheques. The appellant said, in essence, that the reason for this deception was to avoid confrontation with her husband, and possible violence. Despite the fact that their lifestyle was expensive, he complained frequently about the cost, and was physically abusive towards the appellant (an allegation he denied).

9 The defence case as put to the jury was that the appellant had been authorised to sign cheques drawn on her husband's account and that she honestly believed her authority extended to altering cheques. It was submitted that Mr Roberts knew the appellant was concealing her expenditure but that he turned a blind eye to it (AB 87). Much of the cross-examination of Mr Roberts involved attacks on his credibility. It was submitted to the jury that for "a host of reasons", his evidence should not be believed (AB 89).

10 The learned trial Judge directed the jury that the prosecution was required to establish beyond reasonable doubt that the appellant did not have her husband's authority to sign or alter cheques: and further, that the appellant did not have an honest and reasonable, but mistaken belief that she had been so authorised. His Honour gave a comprehensive direction in relation to s 24 of the Criminal Code (TS 1268-9, 1280-1).

11 Earlier in his charge, the Judge had directed the jury that each one of the 178 charges required separate consideration (TS 1265). However, his Honour went on to point out that:

"some of your findings of fact, particularly on such issues as consent or authority, will be common to more than one count." (TS 1266)

12 In the light of that direction, and the fact that the appellant did not dispute she had signed or altered the cheques she was alleged to have

(Page 7)

forged, it might have been expected that the verdicts on all counts would have been the same. However, the jury sent a note to the trial Judge after deliberating for some four hours, in which it asked for "further instruction" on a number of matters, including:

"the concepts of … given or implied authority."

13 The jury may have had in mind the possibility that the appellant had some implied authority to sign or alter cheques to be used in the payment of household expenses, but not for personal expenses of benefit only to her. That inference arises from two further questions. The jury asked for instruction on:

"the concept of … deprivation of property contrary to wishes and expectations (are wishes and expectations particular to a circumstance or are they more general)."

It then asked:

"Is authority to act only given in the interests of the person giving it, can the recipient of authority act for their own benefit." (AB 131)

14 In answering the question about implied authority, the Judge directed the jury:

"Authority can be given expressly by word or conduct … Authority can also be given impliedly, for instance by acquiescing in a course of conduct with the knowledge of that conduct." (TS 1294)

15 As a matter of law, that was, with respect, a proper answer to the question. However, implied authority had not been raised as part of the defence case. Indeed, when discussing with counsel the answer he would give to the jury's question, the Judge observed, in effect, that the evidence for the prosecution was a complete absence of authority, whereas the appellant had contended she had general authority. Hence his Honour's question to the prosecutor:

"There's no mid-ground, is there?" (TS 1289)

Although the prosecutor said there was not, he went on to submit that it was open to the jury:

"to accept part of what [the appellant] has to say about authority and part of what Mr Roberts may well say."

(Page 8)

16 In my view, given the way the case was run, that submission was incorrect. In any event, it was irrelevant to the question of implied authority as the Judge answered it.

17 After lengthy further deliberation, the jury returned verdicts of guilty on counts 7 - 8, 11 - 12, 15 – 30, 45 – 46, 49 – 50,53 – 54, 71 – 72, 81 – 82, 91 – 92, 127 – 132,139 – 142, 145 – 148, 155 – 156, 159 – 160 and 165 – 180. (The odd-numbered counts relates to the uttering of the cheque referred to in the previous count).

18 There are ten grounds of appeal. I shall refer to them in the order in which they were argued on behalf of the appellant.

Ground 10

"The learned trial Judge failed to direct the jury that unless they were satisfied that the appellant did not have an honest claim of right in relation to the ultimate use of the money, they must acquit".

19 This ground arises from those parts of the appellant's evidence in which she spoke of her need for money to pay the household and other expenses Mr Roberts required her to meet, but for which he gave her insufficient funds: see TS 926, 933, 942, 947, 949, 951, 970, 980, 986, 989, 990, 997, 1019, 1047 and 1053.

20 It was submitted on behalf of the appellant that a clear inference arose from this evidence, that the appellant believed she was entitled to use her husband's money for these purposes. Indeed, when cross-examined about six cheques amounting to some $46,000 she signed in his name in about March 2000, the appellant was asked:

" … you say that you were entitled to that money."

The appellant answered "Yes" (TS 970).

21 Further, in his closing address to the jury, the prosecutor described the appellant as:

" … a woman who thought she was entitled to unlimited access to her husband's wealth." (AB 130)

22 Despite the evidence referred to above, the possibility of a claim of right, arising under s 22 of the Criminal Code, was not raised in the appellant's defence. That did not, of course, absolve the trial Judge from

(Page 9)

the responsibility of directing the jury to consider a claim of right, if that defence was reasonably open.

23 The defence arises under s 22 of the Criminal Code, which provides:

" … a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."

24 The defence was considered by the High Court in MacLeod v The Queen (2003) 214 CLR 230. In the joint judgment of Gleeson CJ, Gummow and Hayne JJ at [40] their Honours referred to the judgment of Dawson J in Walden v Hensler (1987) 163 CLR 561 at 591-2. There, Dawson J noted that s 22 of the Code could include a claim based on a mistake of law. By contrast, s 24 of the Code which defines the defence of a mistake of fact, is limited to such a mistake.

25 In MacLeod, Gleeson CJ, Gummow and Hayne JJ at [41] – [43] said:

"Against that background, several points should be made. The first concerns what is meant when it is said that the accused raises a claim of right. As to that, Dawson J said in Walden:

'It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs (1867) LR 2 HL 149 at 170, per Lord Westbury.'

Secondly, the claim must be made honestly, leading to the proposition expressed by Callaway JA in R v Lawrence [1997] 1 VR 459 at 467 that, although an honest claim 'may be both unreasonable and unfounded', if it is of that quality then the claim 'is less likely to be believed or, more correctly, to engender a reasonable doubt'.

Thirdly, particular considerations arise where, fraud being inconsistent with a claim of right made in good faith to do the act complained of Stephen (A History of the Criminal Law of England (1883), vol 3, page 124) that act has, as a necessary

(Page 10)

element of criminal liability, the quality of dishonesty according to ordinary notions."

26 The reference to dishonesty being decided "according to ordinary notions", is to a passage in the joint judgment of Toohey and Gaudron JJ in Peters v The Queen (1998) 192 CLR 493 at [18] where their Honours said:

"In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest ... If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people."

27 In my view, it is difficult – if not impossible – for the defence of honest claim of right to be raised against a charge of forgery. That is because s 473 of the Code defines forging in the following way:

"Any person who with intent to defraud –

(a) forges a record; or

(b) utters a forged record,


is guilty of a crime …." (emphasis supplied)

28 It follows that a person accused of forging who had no intention to defraud, could not be guilty of that offence. It would therefore be otiose to raise the defence of honest claim of right to the property acquired by the accused person. However, if the evidence disclosed that the accused might have had an honest belief in his or her entitlement to the relevant property, it would be necessary for the jury to consider whether the prosecution had satisfied it beyond reasonable doubt that the accused had any intention to defraud.

29 In the present case, as I have noted above, the appellant contended that in signing Mr Roberts' name on his cheques and in altering those cheques, she acted under an honest and reasonable, but mistaken, belief that she had his authority to do so.

(Page 11)

30 In directing the jury in relation to that matter, the trial Judge said:

"It's the prosecution case that the accused did not have such a belief in fact; she never in fact thought that her husband would consent to what she was doing and that support for that is to be found in the false cheque butts and the altered cheques and the manner of the alteration of the cheques. Further, the prosecution says that having regard to her evidence as to her husband's attitude to money matters and his concern as to the expenditure of his money, such a belief would not be a reasonable belief; that is, it could not reasonably be held in all the factual circumstances.

If you accepted Mr Roberts' evidence that he never authorised or consented to the accused replicating his signature on a cheque, you might consider that it would be difficult - and it's a matter entirely for you - to conclude that there would be any basis for such a belief. So that's the second element to the forgery; firstly, that the offender was the accused person; secondly, that the offender forged a record; that is, that she signed or altered a cheque without authority and without an honest and reasonable but mistaken belief that she had such authority.

The third element is that she did so with an intent to defraud. I have already explained to you that intent is something that requires an inferential finding. Not only must the prosecution establish that the accused person forged a record but it must establish that she did so with an intent to defraud. An intention to deprive another person of a right or to cause that other person to act in any way to his detriment or prejudice is to intend to defraud that person.

The term 'defraud' generally means to deprive a person dishonestly of something which is his or of something which he or it is or would or might, but for the alleged conduct, be entitled. The prosecution case is that in replicating her husband's signature and/or in altering the cheques the accused had the intention of, firstly, gaining access to her husband's money without his consent and to give her the capacity to deal with it at will and contrary to his wishes or expectations and, secondly, that she had the intention, by carefully replicating his signature, in having BankWest, in the belief that the signature

(Page 12)

and/or alterations were those of Mr Roberts, deal with the cheques contrary to the agreed and established account policy of which the witness from BankWest told you."

31 It appears from this passage that although the Judge directed the jury as to the proof of an intention to defraud his Honour did so by reference only to the issue of authority and consent. He did not refer to the appellant's evidence that she had used the cheques to pay for household and other expenses which she needed to meet in order to maintain the standard of living Mr Roberts required.

32 In my view, with all respect to his Honour, this was a significant omission. I consider that, having regard to the appellant's evidence, the jury should have been directed that it could not convict unless satisfied beyond a reasonable doubt that the appellant did not have an honest claim to the monies the subject of the relevant cheques. In other words, the jury should have been directed that it could not find an intention to defraud unless satisfied beyond a reasonable doubt that the appellant did not honestly believe she was entitled to use her husband's money to pay for household expenses and other expenses which she believed it necessary to incur in order to maintain his required standard of living.

33 Furthermore, the jury should have been directed that even if the appellant did not honestly believe she was entitled to use her husband's money as she did, she could not be convicted of fraud unless he was prejudiced in some way by her conduct. If the result of the conduct was that Mr Roberts' money was used to pay for expenses he would have met in any event, he was not defrauded: see R v Kastratovic (1985) 42 SASR 59 per King CJ at page 62, applying Welham v Director of Public Prosecutions [1961] AC 103 at 123.

34 Clearly, if the appellant did not intend to defraud her husband, or if he was not defrauded in fact, the appellant could not have been convicted on the basis that she intended to defraud his bank.

35 I therefore conclude that although it would not have been appropriate for the trial Judge to direct the jury in relation to s 22 of the Criminal Code, a direction ought to have been given in relation to an honest claim of right in the sense set out above.

36 I consider that in the absence of such a direction, the appellant lost the chance of being acquitted on all counts. I therefore conclude that there was a miscarriage of justice and that, therefore, all the convictions should be quashed on this ground.

(Page 13)

Ground 6

"The learned trial Judge erred in law in failing to uphold the appellant's submission, before the trial, that the prosecution was an abuse of process because the issue raised by the charges (whether the appellant had her husband's authority to sign his signature on cheques) was an issue already litigated and decided by the Family Court, on the balance of probabilities, in favour of the appellant."

37 The appellant and her husband were married in September 1994. They separated in March 2000 and a decree nisi dissolving their marriage became absolute on 13 May 2002.

38 The divorce was acrimonious. It involved proceedings in the Family Court which were tried over some 29 days in October and November 2002 by Barlow J. Many issues were raised in the action. They included parenting orders, matters relating to various trusts, applications by both the appellant and her husband for orders for the alteration of property interests and the maintenance of both the appellant and the children of the marriage.

39 On 27 February 2003, Barlow J delivered a judgment of 172 pages dealing with the matters in issue: Roberts v Roberts [2003] FCWA 18.

40 In the proceedings before Barlow J, Mr Roberts asserted and relied on the matters alleged against the appellant in the criminal proceedings. It was submitted to Barlow J that these matters were relevant for three reasons:

(1) they related to the appellant's credibility;

(2) they indicated that during the marriage, the appellant had enjoyed a higher standard of living than her husband had realised; and

(3) they demonstrated that by the unauthorised expenditure of her husband's money, the appellant had wasted his assets.

41 Barlow J was aware that the appellant had been charged with a number of counts of fraud. However, his Honour dealt with the matters arising in the prosecution. In so doing, his Honour concluded that:

"More likely than not, (the appellant) on occasions wrote and signed cheques on the husband's account with the husband's knowledge and consent.

(Page 14)

…

… I do not accept the husband's assertion that he never authorised the (appellant) to sign his signature.

I am also satisfied that on occasions (the appellant), without the husband's knowledge, wrote, signed and/or altered cheques and accessed the husband's credit card account. I do not accept the (appellant's) explanation for her initial denial that she had changed the amounts on cheques.

At the time of such signing and/or altering the cheques, the (appellant) intended to deceive the husband. Likewise, the manner in which the (appellant) paid for jewellery purchased by her from Linneys was intended to deceive the husband about its cost.

I accept the (appellant's) explanation for doing so, namely to avoid arguments with the husband over the extent of her spending.

…

I am of the view that having authorised (the appellant) to write and sign cheques on his account, the husband was aware that on occasions the (appellant) misused that authorisation by signing and/or altering cheques for her benefit. I think it likely that the husband tolerated this misuse and deceptive behaviour until the parties' relationship deteriorated shortly prior to their separation." (Par 688)

42 Mr Roberts appealed against various of the orders made by Barlow J. However, in the judgments on the appeal, the Full Court of the Family Court proceeded on the basis of findings of fact made by Barlow J, including the findings made by his Honour in relation to the matters presently under consideration.

43 Before the criminal trial commenced, the appellant applied to the trial Judge to dismiss the proceedings as an abuse of process. It was submitted that the matters which would be in issue in the criminal trial had already been resolved in the appellant's favour, on the balance of probabilities, in the Family Court proceedings.

(Page 15)

44 The trial Judge held that the prosecution of the criminal charges would not involve an abuse of process because, even on the findings made by Barlow J, there were occasions on which the appellant signed and/or altered cheques and accessed Mr Roberts' credit card account without his knowledge, and that the appellant did so intending to deceive Mr Roberts.

45 The trial Judge held also that "an abuse of process in this context is an extension of the doctrine of estoppel, which has a very limited role in criminal law".

46 The appellant relies on the rule in Smith v Selwyn [1914] 2 KB 98: the "felonious tort rule". However, that rule is to the effect that civil proceedings should be stayed where they raise concurrent criminal issues.

47 There is some doubt whether that rule remains part of the laws of Western Australia: see McMahon v Gould (1982) 7 ACLR 202; PT Garuda Indonesia Pty Ltd v Grellman (1994) 48 FCR 252; Williams v Spautz (1992) 174 CLR 509 at 545, per Deane J, (dissenting); and Gray v Motor Accident Compensation (1998) 196 CLR 1, at [48].

48 In any event, at the hearing of the appeal, the Court was told that Mr Roberts had himself applied to stay the Family Court proceedings pending the outcome of the criminal trial. It is not clear whether that application was made to Barlow J. However, as I have noted above, his Honour was aware of the pending criminal proceedings. The application was unsuccessful. That being so, whether or not the rule in Smith v Selwyn (supra) is part of the laws of Western Australia, it would no longer apply in the present case.

49 The appellant relies also on the broad principle stated by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393:

" … Proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings."

50 Despite the width of that principle, no authority was cited to the Court in which it had been held inappropriate to prosecute criminal proceedings where the issues which fell to be determined in those proceedings had been determined previously in civil litigation. That is

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perhaps because subsequent criminal proceedings, while no doubt oppressive to the accused person, could not usually be said to be unjustifiably so: in most, if not all cases, the public interest in prosecuting alleged offenders would far outweigh the oppressive nature of the proceedings.

51 In Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198, Handley JA at [32] set out a number of matters to be taken into account when it is contended that it would be an abuse of process to prosecute proceedings where a concurrent issue has been determined in earlier proceedings.

52 Included among those factors is the public confidence in the administration of justice. That confidence would undoubtedly be lost if the State was unable to prosecute alleged offenders, simply because the relevant issue had been litigated in civil proceedings. In any event, it was accepted by counsel for the appellant before the trial Judge that the issue to be litigated in the criminal proceedings was not the ultimate issue in the Family Court.

53 For these reasons, I am not persuaded that there is any merit in ground 6.

Ground 5

"The learned trial Judge erred in law, and deprived the appellant of a fair trial, by ruling that defence counsel could not ask any questions of the major prosecution witness (Mr Roberts) nor adduce evidence, to establish that the Family Court had found, after trial, that he had given the appellant authority to sign his signature on cheques, and could not ask any questions nor adduce evidence of the findings of the Family Court and the Full Court of the Family Court that Mr Roberts was a witness unworthy of credit on his oath."

54 In dealing with ground 6, I referred to the fact that, in the Family Court proceedings, Barlow J did not accept Mr Roberts' assertion that he had never authorised the appellant to sign his signature on cheques. The first limb of ground 5 relates to this finding. Barlow J made further adverse credibility findings against Mr Roberts. The second limb deals with this aspect of the judgment. As the Full Court said on appeal, Barlow J found Mr Roberts to be "deliberately misleading, dishonest and manipulative" in relation to his denial that he controlled a certain trust. The Full Court upheld the award of indemnity costs against Mr Roberts on the basis that he had acted "in substance fraudulently, by failing to

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make proper disclosure and by conducting the proceedings up to the date of trial upon a quite wholly false basis". The Full Court referred also to the finding made by Barlow J that Mr Roberts "had engaged in a continuous campaign of deception throughout the proceedings". Indeed, the Full Court commented that Mr Roberts' conduct in this respect was "quite apparent".

55 In these circumstances, counsel for the appellant submitted to the trial Judge that it was open to the defence to cross-examine Mr Roberts about the various adverse findings. The matter was raised at a directions hearing in which the prosecutor referred to an assertion by counsel for the appellant that the jury would be told about the decision of Barlow J. The prosecutor foreshadowed objection to "any sort of questioning of a witness or the introduction of evidence as to what Barlow J's opinion was on this matter because the opinion of somebody else of a matter for the jury to decide is entirely irrelevant …" (AB 77)

56 After short argument, the trial Judge said it was his present view – albeit not a ruling – that the decision of Barlow J was "not relevant to the matters that we have to deal with". (AB 80)

57 At the start of Mr Roberts' cross-examination, counsel for the appellant put to him that he had given the appellant authority to sign cheques. Mr Roberts replied "I certainly didn't". Counsel then said:

"And a Judge of the Family Court has found that you did." (TS 485)

58 This was a wholly improper assertion. In the light of the indication given previously by the trial Judge, counsel should not have introduced the issue without seeking a ruling. As the prosecutor said, counsel's conduct gave rise to a risk that the trial might be aborted.

59 Counsel's statement about the finding made in the Family Court prompted an immediate objection from the prosecutor, following which, the trial Judge directed Mr Roberts not to respond. The Judge then dealt with the matter in the absence of the jury and of Mr Roberts. After hearing argument, his Honour ruled:

"it is not permissible to put to witnesses in this matter findings or comments by the trial Judge on the evidence in the Family Court." (TS 499)

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60 Before the trial Judge, and before this Court also, leading counsel for the appellant (who was not counsel at the trial) relied on the decision of the Full Court of the Federal Court in Humphries v The Queen (1987) 75 ALR 31. It was submitted that the case supports the proposition that a witness may be cross-examined about adverse findings in previous proceedings.

61 In Humphries (supra), an expert witness in a criminal trial was cross-examined on the basis that a Judge in an earlier case had said of him that "your practical forensic experience is negligible". The trial Judge interrupted the cross-examination by saying:

"Well, I will be telling the jury that they have got to make up their own minds on this issue no matter what the Chief Justice or the Queen or the Pope or anybody else has said about his ability."

In his charge to the jury, the trial Judge said:

" … I think you will recall that during the course of the cross-examination of (the expert) something was put to him about his reputation having suffered as a result of what a Judge had said about him in a previous case. Well, let me say, members of the jury, it does not matter what anybody else has said about him in the past, it is your decision as to what you think about him, although you may take into account what has been said about him by other people in the past. You give that weight you think it deserves but it is your view in the end that is to decide the case."

62 Fox J, with whom Forster J agreed said:

"The offending part of this statement is the passage '… you may take into account what has been said about him by other people in the past'.

In my view the correct course would have been to tell the jury to put out of their minds what had been said by the others and his Honour's direction was therefore inadequate when he invited the jury to give the evidence what weight they think it deserved." (at p 36)

63 Kelly J agreed also that the offending questions should not have been asked. However, his Honour went on to say:

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"That is not to say that the testimony of an expert witness may not be attacked on the basis that he has frequently been disbelieved in the past by other courts and tribunals …" (p 45)

64 In my view, the reason for directing the jury to disregard what had been said about the witness in earlier proceedings must have been based on the proposition that those matters were irrelevant to the issues to be decided by the jury.

65 In the present case, the appellant relies on the observation made by Kelly J, about which, I think, three points arise. First, his Honour's observation may well be limited to expert witnesses, and hence, to an attack on their expertise rather than general credibility. Secondly, his Honour's comments were clearly in the nature of an obiter dictum: and thirdly, the views expressed were not adopted by the other members of the Court.

66 However, there is support for the appellant's contention in what is described by the author of Cross on Evidence, The Australian Edition, par [19030], as "an authoritative statement of the rule with respect to cross-examination as to credit based on discreditable acts". The statement is that of Latham CJ in Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 at 545:

"Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness's answers cannot be contradicted by other evidence except in certain exceptional cases. Exceptions to the rule at common law are that after cross-examination of his opponent's witnesses a party may give evidence to show that they are notorious liars, or have given their testimony from a corrupt or other wrong motive, or that they have previously made statements inconsistent with their evidence. A statutory exemption allows proof of convictions where such convictions have been denied by a witness."

67 If, therefore, the discreditable conduct of the witness is to be proved, it will be necessary to demonstrate that it is relevant to a matter in issue. Thus, even where the conduct has resulted in a conviction, it may not be relevant.

68 As Dixon J said in Bugg v Day (1949) 79 CLR 442 at p 467:

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"Scanty as is the material obtained to form a conclusion I think the better view is that at common law a conviction of a witness for an offence could not be used for the purpose of discrediting him if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is to say in his character or trust-worthiness as a witness of truth. Traffic offences cannot often fulfil this condition.

It is sufficiently obvious that if a party is shown by cross-examination or otherwise to have been guilty on previous occasions of the same kind of conduct as that alleged against him in the litigation the tribunal of fact is likely to reason that what he would do once he would do again. The danger is of course great that the rule against using propensity to do a thing as a ground for finding that it has been done on a particular occasion will be disregarded.

The general discretion which at common law belonged to a court … and the wider discretion given by s 56 of the Evidence Act 1898-1940 (NSW) provides however, a safeguard against the use of convictions under the pretext of discrediting a witness for the substantial purpose of directly affecting the judgment of the jury upon the substantive issue."

69 There are examples in the English cases of cross-examination about discreditable conduct other than that reflected in a conviction. In R v Guney [1998] EWCA Crim 719, the English Court of Appeal considered the extent to which a police officer might be cross-examined as to credit on the basis of his previous misconduct. Judge LJ (apparently, delivering the judgment of the Court) noted that the basis for the modern approach to the problem of discreditable behaviour by a witness was to be found in R v Edwards [1991] 1 WLR 207:

"Where a police officer has been found guilty of disciplinary charges, cross-examination is permitted. If and when discreditable behaviour has resulted in findings of professional misconduct we see no justification for limiting the principle to the evidence of police officers."

70 A little later in his reasons, Judge LJ noted that:

"In Edwards itself, Lord Lane underlined that "this is an area where it is impossible and would be unwise to lay down hard and fast rules as to how the court should exercise its discretion.

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The objective must be to present to the jury as far as possible a fair, balanced picture of the witnesses' reliability, bearing in mind on the one hand the importance of eliciting facts which may show, if it be the case, that the police officer is not the truthful person he represents himself to be …"

71 A further example arises from Cooke (1987) 84 Cr App R 286. There, in a criminal trial, counsel for the defence sought to cross-examine a police officer who claimed to have obtained admissions from the accused, on the basis that similar evidence given by the officer in a previous trial had been rejected by the jury. The inference was that the police officer had fabricated the admissions in the previous trial and might have done so in the trial under consideration.

72 The trial Judge declined to allow the cross-examination. In the Court of Appeal, Parker LJ giving the judgment of the Court said:

"In the present case although the acquittal and its circumstances which were sought to be relied on related to different accused and a different offence, the circumstances were that the credibility of (the police officer) was a vital matter and the offences and interviews were so closely connected that the defence ought in our judgment to have been allowed to bring the matter out."

73 A similar situation arose in R vBusby (1981) 75 Cr App R 79, an earlier decision of the Court of Appeal which was criticised by McHugh J in Goldsmith v Sandilands (2002) 76 ALJR 1024 at [41], on the basis that it and later cases blurred the distinction between collateral facts and facts in issue.

74 The case on which the appellant places principal reliance supports the view that a discretion exists in cases such as this: S v Damalis (1984) 2 SA 105, a decision of the Transvaal Court of Appeal in South Africa.

75 The copy of the case made available to the Court was of poor quality. However, we were told by counsel that the Transvaal Court of Appeal, in considering whether it was open to cross-examine a witness about an adverse finding in previous proceedings, said:

"Questions of this kind are frequently put and in my experience always allowed."

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The Court held that neither the hearsay nor opinion evidence rules would be infringed, provided the cross-examination was confined to asking the witness about the finding made previously as to his credit and about the evidence which had been disbelieved. According to Damalis (supra):

"Disparaging remarks in previous trials if made a considerable time previously, or if the witness was not a party to the action, or if the witness had no right of appeal, should not be pursued."

This test clearly envisages the existence of a discretion not to permit cross-examination where to do so would, at the least, appear to be unfair.

76 It is submitted for the appellant in the present case that the findings against Mr Roberts had been made only a relatively short time before the criminal trial. He was a party. He appealed, and the adverse findings were re-stated against him in strong terms in the judgments on appeal. Furthermore, the findings were made in respect of the issue of authority to sign cheques which was the central issue in the criminal trial.

77 A reference to the finding being recent, must be understood in the context of a criminal trial taking place in March 2004.

78 In my view, counsel for the appellant should have been permitted to cross-examine Mr Roberts about the findings made by Barlow J in relation to the appellant's authority to sign cheques.

79 Mr Roberts would have been questioned about these matters for the purpose of discrediting him. If Mr Roberts had denied that the findings were made, it should have been open to tender the relevant parts of Barlow J's judgment in contradiction. That is because the questions were relevant to matters in issue in the criminal trial: Piddington v Bennett & Wood Pty Ltd (supra).

80 The findings to which the second limb of ground 5 relates were in a different category. They were findings of discreditable conduct on the part of Mr Roberts which were collateral to the facts in issue in the criminal trial: see Goldsmith v Sandilands (supra) at [41].

81 It was submitted by leading counsel for the appellant that the findings were tantamount to a finding that Mr Roberts had committed perjury. I do not accept that submission: the findings were made on the balance of probabilities. However, I consider that counsel for the appellant should have been permitted to "bring the matters out" (as Parker LJ said in Cooke (supra)) by cross examination.

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82 Of course, questions asked in cross-examination are not evidence. If, therefore Mr Roberts had denied that Barlow J and the Full Court had made the findings of discreditable conduct against him, the question might have arisen whether those findings could be proved by tendering the relevant part of the judgment. That would depend on whether the circumstances fell within one of the exceptions to Piddington v Bennett & Wood Pty Ltd (supra) or whether it would be appropriate to create a further exception. It is not necessary to consider these questions for present purposes.

83 In my view, the trial Judge's refusal to allow cross-examination on either of the bases referred to in ground 5, deprived the appellant of an opportunity to have Mr Roberts discredited and thereby reduced the appellant's prospects of an acquittal. This, I think, resulted in a miscarriage of justice, with the result that the appeal should be allowed on this ground also.

Ground 4

"If the purpose for which the cheques were drawn was relevant to the jury's decision, or had the potential to affect it, then the trial Judge's ruling that the appellant's ANZ and Town and Country cheque butts could not be tendered in evidence, to establish the use of funds paid into her bank account by cheques which she signed, drawn on her husband's account, was wrong in law, and denied the appellant a fair trial."

84 In the course of her examination-in-chief, the appellant was asked a number of questions designed to elicit evidence that the money she had put into her account from Mr Roberts' account was used in payment of what might generally be described as household expenses. In the course of giving that evidence, the appellant was asked to identify a number of cheque stubs. Her counsel referred to them as "a representative sample" (TS 947).

85 Having identified a number of cheque stubs in this way, counsel sought to tender a substantial bundle of the appellant's cheque stubs.

86 The trial Judge declined to accept the tender. His Honour said:

"The jury are not required to sit out there and flick through butts … We don't want the jury going out the door with a bucket full of cheque butts and wondering what they should do with them." (TS 947)

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His Honour also said that if the prosecutor disputed the appellant's evidence, the cheque books might become relevant.

87 In my view, his Honour's ruling was correct. If the purposes for which the cheques were drawn was relevant to the jury's deliberations, it had the appellant's evidence about those matters. If the prosecutor had challenged that evidence by cross-examining the appellant about anything written on the cheque stubs, any cheque butt the subject of such cross-examination could have been tendered following the usual practice.

88 In my view, it could not be said that the appellant was denied a fair trial as a result of the Judge's ruling. I therefore consider there is no merit in ground 4.

Ground 8

"The trial Judge erred in law in holding that Mr Roberts' practice, before his marriage, of having his daughter, Sandra Cambridge, draw cheques on his cheque account which he always signed, was admissible as evidence from which a jury could infer that he had never authorised the appellant to sign his signature on cheques which the appellant drew on his account after his marriage to her. His Honour should have ruled that such evidence had no probative value; or that if it had probative value, it was outweighed by its prejudicial effect."

89 At the pre-trial directions hearing, the prosecutor informed the trial Judge that he proposed to lead evidence from Mr Roberts' daughter, Sandra Cambridge, that she had provided administrative assistance to her father, before his marriage to the appellant, by preparing cheques for him and presenting them to him for his signature.

90 Counsel for the appellant objected to this course on the basis that Mrs Cambridge's evidence would be irrelevant. Counsel accepted that it would be open to Mr Roberts to give evidence that he had never allowed anyone to sign cheques in his name. However, counsel submitted, to call a witness to whom he had never given that authority would be irrelevant.

91 The trial Judge ruled that Mrs Cambridge's evidence was relevant "because it has probative consequence". His Honour said:

"It appears that the position that will be taken by the (appellant) at trial is that she had authority to deal with cheques drawn on (Mr Roberts') bank account in the manner which she did. The direct evidence of (Mr) Roberts is that there was no such

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authority. The resolution of that factual controversy may, apart from a consideration of the direct evidence, involve the jury drawing an inference or inferences from a number of facts. Standing alone Mr Roberts' fiscal habits prior to his marriage to the (appellant) may be of little consequence, but in combination of other facts the position may well be otherwise. The proposed evidence has no prejudicial consequence.

The fact that evidence of habit may be relevant finds support in Cross On Evidence, 6th ed, par 1135." (AB 82)

92 In my view, the evidence given by Mrs Cambridge was prejudicial. It had that quality because of the way the evidence was used by the prosecutor. Both in opening and closing, the prosecutor told the jury that Mr Roberts' evidence was that he had never made anyone a joint signatory to his account, neither his daughter nor his wife (TS 265, AB 111-2). Thus, the jury was, in effect, being asked to draw the inference that because Mr Roberts had not authorised his daughter to operate his bank account, he was unlikely to have given that authority to his wife.

93 There is no doubt that evidence of habit may be admissible. In R v Liddy (2002) 81 SASR 22 at [479] Williams J cited the following passage from Wigmore on Evidence – 1983 (Vol 1A, par 98.1):

"A probative force of habit is based principally upon the fact that habitual conduct is largely free from the complicating and confusing element of elusion …"

94 In my view, it is clear from that explanation that the evidence of Mr Roberts and Mrs Cambridge did not fall within the category of habit. It may well have been Mr Roberts' habit to operate his bank account by means of cheques prepared for him by Mrs Cambridge which he signed. Indeed, he continued to operate his bank account in a similar way after his marriage to the appellant. However, I do not think it can properly be inferred from this evidence that Mr Roberts was in the habit of refusing to authorise others to operate his bank account. There is no evidence to suggest that Mrs Cambridge ever asked to be a signatory. In my view, in order to establish that Mr Roberts habitually refused to grant such authority, it would be necessary to prove that on numerous occasions, that had been his response to requests of that kind.

95 I therefore consider that the trial Judge erred in admitting Mrs Cambridge's evidence. However, having regard to my view that the appeal should succeed on a number of other grounds, I do not think it

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necessary to consider whether, if the appellant had succeeded on this ground alone, there would have been a miscarriage of justice.

Ground 7

"The trial Judge erred in law by failing to direct the jury that after three hours 'the decision of not less than 10 jurors shall be taken as the verdict' and instead allowing the jury to deliberate for approximately 16 hours, under the apprehension, as a result of the direction given before they began to deliberate, that 'the verdict, such as it is, must be unanimous; that is, it must be the view held by 12 of you' (TS 1277). His failure to so direct rendered the verdicts of guilty, unsafe and unsatisfactory, and prejudiced the appellant's right to a fair trial."

96 This ground reflects a novel interpretation of s 41 of the Juries Act 1957. So far as relevant, the section provides:

"Where a jury in a criminal trial … has retired to consider its verdict and remained in deliberation for at least 3 hours and has not then arrived at a unanimous verdict, the decision of not less than 10 of the jurors shall be taken as the verdict …"

97 The trial Judge directed the jury that its verdict must be unanimous. That was, of course, a perfectly proper direction.

98 The jury retired to consider its verdict at 10.48 am on 23 March 2004. At 8.34 pm on that day, counsel for the appellant asked the trial Judge to direct the jury that it could return a majority verdict. The Judge informed counsel that he had received a note from the jury saying it would not be able to resolve the matter that night. However, the Judge did not give the jury the majority direction. A unanimous verdict was delivered at 3.48 pm on the following day.

99 It was submitted on behalf of the appellant that in the absence of a majority direction from the Judge, the jury was labouring under the misapprehension, for at least 12 hours, that it was required to return a unanimous verdict. This submission is based on a construction of s 41 of the Juries Act which would make it mandatory for the trial Judge to give the majority direction after three hours' deliberation. Reliance is placed on the use of the word "shall" in s 41.

100 The construction advanced on behalf of the appellant does not accord with the practice usually adopted where a jury has been deliberating for

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over three hours. In those circumstances, it is common for the trial Judge to discuss with counsel whether it is appropriate for a majority direction to be given. If the case is complex or if there are many counts to be considered, the jury is frequently left undisturbed for considerably longer than three hours. That is a course which is undoubtedly favourable to an accused person.

101 In short, s 41 is applied on the basis that the giving of a majority direction is discretionary. In my view, that is the clear intention of the legislature. Section 41 does not require a majority direction to be given after the jury has been deliberating for three hours. It permits such a direction to be given when the jury has "remained in deliberation for at least three hours". Clearly, therefore, it is a matter for the discretion of the trial Judge to determine, after the three hour period has elapsed, whether it is appropriate to give the majority direction. Once it is given, the Judge is required to take a majority verdict.

102 As this Court held in Buttsworth v The Queen (2004) 29 WAR 1 at [45]:

"That section [s 41] is interpreted as authorising such a direction to be given to a jury, but not as requiring it to be done at any particular time and not as precluding the return of a unanimous verdict."

103 It is submitted on behalf of the appellant that the point was not taken in Buttsworth (supra) that if the direction requiring unanimity is given, then, after three hours, the jury must be labouring under "a fundamental misapprehension". I do not accept that to be so, having regard to the discretionary nature of the section.

104 In my view, this ground must fail.

Ground 3

"The learned trial Judge erred in law in failing to direct the jury … that the central issue, common to all charges, was whether the prosecution had proved beyond reasonable doubt that the appellant did not have her husband's general authority to sign his signature on his cheques, or had no honest belief that she had such authority; and that unless the jury was satisfied of that beyond reasonable doubt, then although the forging and uttering of all the cheques was the subject of separate charges, they would be bound to acquit on all charges; and instead directed

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the jury that 'there are 178 counts or charges in the indictment and as I have mentioned earlier, each requires your separate consideration. It's not a block. Your finding in respect of any one count does not dictate what your finding must be in respect of any other count. It's necessary that you examine each count separately. You evaluate the evidence as it relates to that count, you make a decision as to whether the prosecution has satisfied you beyond reasonable doubt of all the elements of that count or charge and then you move on to consider each of the remaining counts' (TS 1265)."

105 As I have noted above, the case was fought on an all or nothing basis. That is, the prosecution case was that the appellant had never been authorised to sign or alter any cheques drawn on her husband's account, while the defence case was that appellant had general authority. However, because there were 178 counts on the indictment it was appropriate for the trial Judge to direct, as he did, that each count should be considered separately, albeit against the background of "a general question as to credibility" (TS 1266).

106 In any event, I do not think it necessary to dwell on this ground. That is because the questions asked by the jury about implied authority and the answers to those questions given by the trial Judge in his redirection, placed an entirely different complexion on the case. It is against that background that grounds 1 and 2 fall to be considered.

Grounds 1 and 2

"1. The jury's verdicts of guilty on counts 7-8, 11-12, 15-30, 45-46, 49-50, 53-54, 71-71, 81-82, 91-92, 127-132, 139-142, 145-148, 155-156, 159-160, 165-180 were unreasonable and inconsistent, and it would be dangerous or unsafe in the administration of justice to allow them to stand.

Particulars
1.1 The issue at trial was whether the Appellant had her husband's express or implied general authority to sign his signature on his cheques, or whether she honestly believed that she had such general authority. There was no evidence, nor was it the case for the prosecution or the defence, that she had his authority only to sign specified cheques.

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1.2 It followed that if the jury was in reasonable doubt whether the appellant had, or honestly believed she had, her husband's general authority to sign his cheques, she must be acquitted of all charges.

1.3 The jury's verdict of not guilty on 96 of the total of 178 charges meant that the jury was (at least) in reasonable doubt whether the Appellant had, or honestly believed she had, her husband's general authority to sign his signature on cheques. There was no reasonable basis, nor evidence, on which the jury could have convicted her of forging some of the cheques, consistently with the verdicts of not guilty.

2. The verdicts of guilty on counts 1-6, 9-10, 33-34, 47-48, 51-52, 115-116 (relating to cheques which the Appellant had altered) were inconsistent with the verdicts of not guilty on counts 13-14 and 135-136 (sic 133-134) (which also related to altered cheques). The defence case was that the Appellant honestly believed that because she had, or honestly believed she had, her husband's authority to sign his signature on cheques, she also had her husband's authority to alter cheques. The prosecution case was that the Appellant had no authority to sign his signature of any of the cheques and therefore could not have believed that she had authority to alter cheques. The verdicts of not guilty showed that the jury was not satisfied beyond reasonable doubt that she did not honestly believe she had her husband's authority to alter cheques. There was therefore no reasonable basis on which it could have found her guilty of any of the charges relating to altered cheques."

107 In my view, the particulars set out above disclose a non sequitur. Although the defence case was that the appellant had general authority to sign or alter cheques, in the light of the redirection given by the Judge in answer to the jury's questions, it was open to the jury to find that the appellant's authority was limited to that which might be implied from her husband's knowledge of and acquiescence in her conduct.

108 On that basis, it was open to the jury to convict the appellant on charges relating to cheques she had signed or altered where she had

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exceeded her authority. In relation to those cheques, the jury might have been satisfied beyond reasonable doubt that the appellant could not have been acting under an honest and reasonable belief that she was authorised appropriately.

109 In MFA v The Queen (2002) 213 CLR 606. Gleeson CJ and Hayne and Callinan JJ noted (at [38]) that the test established by s 6(1) of the Criminal Appeal Act 1912 (NSW) "is unreasonableness, not inconsistency". McHugh, Gummow and Kirby JJ agreed: see [97].

110 The equivalent provision in this jurisdiction is s 689(1) of the Criminal Code which provides that:

"The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice …"

111 In MFA (supra) the appellant had been charged with nine counts of sexual offences alleged to have been committed against one complainant on four separate occasions. The appellant was acquitted on seven counts and convicted on two. Gleeson CJ, Hayne and Callinan JJ held that there was an obvious explanation of the differences between the verdicts on the various counts. Their Honours explained how the jury might reasonably have reached their conclusions.

112 In the present case, counsel for the respondent, who had carried out an analysis of the verdicts, submitted that it was possible to identify a rational basis by which apparent inconsistencies could be explained, thereby demonstrating that the verdicts were not unreasonable.

113 The analysis is based on suppositions about the inferences which might have been drawn by the jury about Mr Roberts' state of knowledge and on its view of the appellant's credibility.

114 I do not think it possible to accept the analysis with any degree of confidence. That is because, although the trial Judge directed the jury about the law relating to implied authority in the course of his redirection, his Honour did not attempt to relate the law to the facts of the case. Indeed, it would have been difficult, if not impossible to do so in relation

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to the 89 counts of forgery, having regard to the fact that the case had not been run on the basis of implied authority.

115 In Bardsley v The Queen [2004] WASCA 251, a majority of this Court applied the decision in R v Jellard [1970] VR 802 where Smith J, with whom Winneke CJ and McInerney J agreed said, at page 804:

"Reference may also be made to what was said by the High Court in Alford v Magee (1952) 85 CLR 437, at p 466; [1952] ALR 101, regarding the duties of a trial judge, and in particular to the following words: '… it my be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held … that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are'."

116 Once the question of implied authority was before the jury, the original direction given by the trial Judge was, I think, with respect, inadequate. In my view, if the trial Judge was of the view that a defence based on implied authority was open, it would have been necessary for his Honour to explain to the jury how it should approach the evidence for the purpose of assessing whether Mr Roberts had impliedly authorised the appellant to sign or alter cheques. In other words it would have been necessary to explain to the jury how it should assess whether the use to which the appellant put the money drawn from her husband's account was or was not within the scope of her authority. This would have required a direction in relation to each cheque; or at least in relation to groups of cheques which fell within similar categories.

117 In the absence of such directions, the jury was left to its own devices in attempting to determine whether the appellant was guilty or not guilty on each count. That is an unsatisfactory situation in any case: and in a case as complex as this, it is wholly unacceptable.

118 In my view, it must follow that there has been a miscarriage of justice, with the result that the appeal should be allowed on this ground also.

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Ground 9

"The convictions are unsafe and unsatisfactory because the conduct of the prosecution was so unfair that there was a real risk of the jury being misled and improperly influenced, thereby depriving the appellant of her right to a fair trial."

119 Extensive particulars of this ground are given. They contain a litany of complaints about allegedly wrong or misleading comments and assertions made by the prosecutor in his closing address to the jury. The respondent denies that the prosecutor's remarks had that quality.

120 In my view, it is not necessary to deal with this ground. It raises no question of principle. The law relating to the duty of a prosecutor in a criminal trial has been restated very recently by this Court in Paterson v The Queen (2004) 28 WAR 223 at [93] – [96], where Malcolm CJ reviewed the authorities.

121 As Malcolm CJ said at [97], the relevant question is whether the conduct of prosecuting counsel has resulted in a miscarriage of justice.

122 My view that it is not necessary to answer the question in the present case, arises from my conclusions that the appeal should be allowed on the other grounds referred to above.

What orders should be made?

123 When this Court allows an appeal against conviction, it must proceed in accordance with s 689(2) of the Criminal Code, which provides:

"Subject to the appeal provisions of this chapter the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or order a new trial."

124 As the Court of Criminal Appeal of Victoria said in Wilson & Grimwadev The Queen [1995] 1 VR 163, at p 181:

"Often enough nowadays a successful appeal against conviction carries an order for a re-trial as of course and without argument or explanation. The question of the entry of a judgment and verdict of acquittal in such a case is usually not adverted to because it is unnecessary or, if adverted to, it usually answers itself. The form of the subsection ought not, however, to obscure the undoubted discretion exercisable by the court to

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order or decline to order a re-trial without first considering whether it should direct the entry of a judgment and verdict of acquittal. If the court thinks it right not to order a re-trial it is obliged, subject to any relevant special provision contained in Pt VI, to direct a judgment and verdict of acquittal to be entered. Subject to any such special provision, it must do one or the other. The history of the practice and of the legislation serves to make the matter clear."

125 In Spies v The Queen (2000) 201 CLR 603, Gaudron, McHugh, Gummow and Hayne JJ considered whether it was appropriate to order a re-trial in respect of a charge which had been brought under s 229(4) of the Companies Code where the conviction had been set aside on appeal.

126 After referring to the fact that members of the commercial community as well as the general public had a vital interest in ensuring that directors who abuse their office and breach the criminal or company law do not escape conviction, their Honours went on to say:

"Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge. In the present case, given the competing considerations, it cannot be said that the interests of justice require that the appellant be acquitted of the s 229(4)(charge). That being so, it is a matter for the prosecuting authority to determine whether in all the circumstances there should be a further trial of the s 229(4)(charge)."

127 The competing considerations to which their Honours referred included the fact that, prima facie, it would be oppressive to put the appellant to the expense and worry of another lengthy trial. Further, it was unlikely that if the appellant was to be convicted on the s 229(4) charge, he would receive another custodial sentence or any additional punishment. The appellant had already served the sentence imposed on him previously. Against that, the case against the appellant in respect of the s 229(4) charge was a strong one.

128 In my view, different considerations apply in the present case. Having regard to the appellant's belief in her entitlement to use her husband's money as she did, and his discreditable conduct in the Family

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Court proceedings, I regard the case against the appellant as relatively weak.

129 Further, I do not consider that the public interest would be served to any great extent by prosecuting the appellant in the context of what is, essentially, a matrimonial dispute.

130 In Ilich v The Queen (1987) 162 CLR 110 a creditor who had been overpaid by mistake, retained the excess money, to which he was not entitled. The creditor was convicted of stealing the excess money and his appeal against that conviction was dismissed by this Court.

131 The High Court quashed the conviction. Wilson and Dawson JJ, with whom Brennan and Deane JJ agreed, said (at p 130):

"It remains to consider whether the applicant should be exposed to a new trial. His story is not inherently improbable and, had the jury been adequately directed, it is likely that he would have been acquitted. It is not an invariable rule that a new trial should be ordered where there is evidence upon which a jury could have convicted on an adequate direction: see Clemesha v The Queen [1978] WAR 193 at 201, per Wickham J. Justice having once miscarried in this case, we think that it would be better served in the end if there were no order for a retrial. We would grant special leave, allow the appeal, quash the conviction and direct a verdict and judgment of acquittal be entered."

132 In my view, for the reasons given above, the approach of Wilson and Dawson JJ should be followed in the present case. On that basis, and for the reasons given above, I would allow the appeal, quash all the convictions and direct that a verdict and judgment of acquittal be entered.

133 MCLURE J: I have had the advantage of reading in draft form the reasons to be published by Templeman J. I agree with the orders he proposes generally for the reasons he gives. However, I differ on some aspects of the analysis and wish to make additional observations on others.

Honest Claim of Right

134 The respondent contended that s 22 did not apply because the offences of which the appellant was convicted are not "an offence relating to property". The offences, that of forging and uttering contrary to s 473(1), are in Pt VI of the Criminal Code (WA).

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135 Section 22 of the Criminal Code (WA) materially provides:

"… a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."

136 At one stage the prevailing view was that s 22 was limited to offences arising under Pt VI of the Criminal Code: Pearce v Paskov [1968] WAR 66. However, this Court, relying on Walden v Hensler (1987) 163 CLR 561, has concluded that s 22 is not so confined: Molina v Zaknich (2001) 24 WAR 562.

137 In support of its contention the respondent relied on Baldock v The Queen, unreported; CCA SCt of WA; Library No 930232; 30 April 1993 at page 27, per Malcolm CJ. In that case, the appellant was charged with 31 counts of stealing money the subject of cheques and 31 counts of falsifying cheque butts contrary to s 419(2) of the Criminal Code. Malcolm CJ (with whom Pidgeon and Nicholson JJ agreed) said at page 27:

"The falsification offences were the subject of s 419(2) of the Criminal Code. Such offences were not offences 'relating to property' within the meaning of s 22 of the Code and the defence of honest claim of right had no application to them."

138 Section 419 is also within Pt VI of the Criminal Code and the offence under subs (2) arises, inter alia, where a person falsifies any document with intent to defraud. The prosecution case in Baldock was that by making false entries on the cheque butts, the appellant's intention was to prevent or impede detection that the cheques the subject of the counts of stealing had been paid to the appellant. There is no elaboration or further discussion in the reasons for the conclusion that the falsification of a cheque butt in these circumstances did not "relate to property". It may be because a cheque butt is not used to obtain payment. However, in the absence of reasons for the conclusion, Baldock should be confined to its particular facts.

139 Even on the narrow interpretation of s 22 in Pearce v Paskov, it was held to apply to offences in which the causing of another to part with property or the infringing of another's rights over or in respect of property is an element: Walden v Hensler (supra) at 574, per Brennan J. A cheque (unlike a cheque butt) is used to access the relevant account.

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Accordingly, the offences of forging and uttering cheques (of which the appellant was convicted) clearly relate to property.

140 In determining whether a person has been defrauded in fact, it is necessary to have regard to the nature of the property in question. The common understanding is that the amount standing to the credit of a customer at his or her bank is the customer's money. Technically, the relationship of banker and customer is that of debtor and creditor and the customer's property is a chose in action against the bank. The state of the account between banker and customer (that is, the level of the bank's indebtedness) is unaffected by unauthorised transactions on the account with the result that the bank suffers the loss: National Bank of Commerce v National Westminster Bank [1990] 2 Lloyd's Rep 514. Otherwise, nothing of significance turns on whether the property is money or a chose in action; the issue is whether the appellant had an honest claim of right "in or with respect to" the property. A person can have an honest belief with respect to property even if dishonest means were used to access the property: Peters v The Queen (1998) 192 CLR 493 at 508; R vKastratovic (1985) 42 SASR 59. I agree with Templeman J for the reasons he gives that the jury should have been directed that it could not convict the appellant unless satisfied beyond reasonable doubt that she did not have an honest claim to, or with respect to, the moneys the subject of the relevant cheques.

Admissibility of Prior Findings in Civil Proceedings

141 The relevant findings made by Barlow J in the Family Court are set out in Templeman J's reasons on grounds 5 and 6.

142 The appellant contends the trial Judge erred in ruling that defence counsel could not ask any questions of Mr Roberts nor adduce evidence to establish that the Family Court had found, firstly, that Mr Roberts had given the appellant the authority to sign his signature on cheques and, secondly, that he was a witness unworthy of credit on his oath.

143 The issue is whether a person can be cross-examined in criminal proceedings on findings made by a trial Judge in prior civil proceedings and, if so, whether rebuttal evidence can be adduced. That depends on whether the evidence is relevant; if so, whether to a fact in issue or to credit only; and, finally, whether any exclusionary rules apply. As I understand it, the appellant contends that Barlow J's findings relating to the appellant's authority to sign the cheques ("authority findings") are admissible as evidence of their truth and, thus, relevant to a fact in issue. Where questions are relevant only to credit, the general rule is that a

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witness's answers are final: Goldsmith v Sandilands (2002) 76 ALJR 1024. There are (at least) four exceptions to the finality rule; rebuttal evidence can be led of the fact that a witness has been convicted of a crime, is biased in favour of the party calling him or her, has previously made an inconsistent statement or the witness's moral character or physical condition is such as to militate against the witness telling the truth.

144 The question whether a verdict in a criminal proceeding is relevant and admissible as evidence of the truth of the matters on which it is based has a controversial history. If the rule in Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587 represents the common law in this jurisdiction, the answer would be an unequivocal "no". That rule is to the effect that a criminal conviction is not admissible in subsequent civil proceedings as evidence of the truth of the matters on which it is based. The basis for this widely criticised rule is that it is irrelevant opinion evidence. If a conviction is inadmissible in subsequent civil proceedings, it must follow that a finding in civil proceedings is inadmissible as evidence of its truth in subsequent criminal proceedings. Of course, the doctrines of res judicata, issue estoppel or the analogous criminal law doctrines of autrefois convict and acquit do not apply in the circumstances under consideration.

145 However, the rule in Hollington v Hewthorn does not prevent a conviction being tendered in subsequent proceedings on the question of credit. That is so notwithstanding (as noted in Cross on Evidence 7th Australian edition at [5195]) there would be no point allowing convictions to be proved in cross-examination to credit if they were not evidence of the existence of the facts upon which they were based.

146 In any event, the rule in Hollington v Hewthorn has not been followed by this Court: Mickelberg v The Director of the Perth Mint [1986] WAR 365 following the decision of the New Zealand Court of Appeal in Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961. Both Courts recognised that a conviction is an expression of opinion by a differently constituted court based on hearsay evidence which is not before the Court in the subsequent proceedings. Notwithstanding these difficulties, they held that such evidence was relevant and admissible, although the weight to be given to the conviction was a matter for the trial Judge: Mickelberg v The Perth Mint (supra). The rationale for admissibility is that it offends commonsense to exclude evidence of a conviction where the material facts on which it is based, which have been proved beyond reasonable doubt, overlap in whole or in part with the

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matters that arise for determination in subsequent civil proceedings which has to be determined on the balance of probabilities.

147 The Commonwealth Evidence Act 1995 deals with the admissibility of convictions and findings. Section 92(2) provides for the admission of evidence inadmissible at common law under the rule in Hollington v Hewthorn. Otherwise, there is a general prohibition in s 91 in the following terms:

"s 91 (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose."

148 The rationale for this prohibition is explained in the Australian Law Reform Commission ("ALRC") Interim Report No 26 on Evidence as follows (at p 445):

"… It is recommended that a civil judgment not be admissible to prove the facts on which it is based. Its probative weight is considerably less than that of a conviction. It is founded upon the evidence chosen by the parties, who are not obliged to make available all known relevant evidence, as is a Crown prosecutor. Further, the standard of proof is merely upon balance of probabilities and so there may be little to distinguish a successful or unsuccessful action by a plaintiff. The disadvantages of admitting evidence of a civil judgment (the potential for waste of time and costs in investigating the judgment, and the greater likelihood of challenge to the evidence) outweigh the minimal probative value of the evidence."

149 The Evidence Act1906 (WA) is silent on the subject and, as far as I am aware, the issue has not previously been considered by this Court. The rationale for the admissibility of a conviction does not apply where a finding against a person in civil proceedings is sought to be tendered as evidence of its truth in subsequent criminal proceedings against that person. However, in this case the trial Judge in the Family Court proceedings made findings in favour of the appellant and against the

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primary witness for the prosecution. That is, the jury was being asked to find against the appellant beyond reasonable doubt on some matters on which a Judge had found in her favour on the balance of probabilities.

150 Even so, I am satisfied there are compelling reasons for concluding that the authority findings made by Barlow J are inadmissible as evidence of their truth. Firstly, the strong policy and commonsense considerations that justify the admission of a conviction in subsequent civil proceedings do not apply for the reasons given by the ALRC. Secondly, it is difficult to see the grounds on which the jury could properly give the evidence any weight, it being an opinion of a (albeit expert) fact-finder on evidence that is not before the jury. Its admission cannot be reconciled with the standard directions to the jury to confine their consideration to the evidence given at trial and not to speculate on matters outside that evidence. Further, there would be significant practical difficulties in this case because the precise extent of the common factual overlap is unclear. According to the appellant, she had signed her husband's name on a large number of cheques for which she was not charged. Barlow J's findings relate to unspecified occasions on which she had her husband's authority and others when she did not. It is impossible to relate the findings to the particular charges. I am satisfied the trial Judge did not err in refusing to admit the authority findings as evidence of truth.

151 However, where there is a positive adverse finding of discreditable conduct of a witness that is sufficiently connected with the matter in issue to be relevant to his credit, the Court may in the exercise of its discretion permit cross-examination: R v Ferri [2002] SASC 217; R v Edwards [1991] 1 WLR 207. Whether or not rebuttal evidence can be tendered depends on whether the exceptions apply.

152 On the other hand, difficulties arise where the subject matter of the adverse finding directly overlaps with the facts in issue in the subsequent proceedings. That is so notwithstanding the only inference that can be drawn from cross-examination as to credit is whether the witness can be believed on his oath and no inference can be drawn in relation to the facts in issue. That is, disbelief does not amount to positive evidence of what is disbelieved: Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 at 87. However, there is an air of unreality about this distinction when the subject matter of the finding relates to the central fact in issue in the criminal proceedings on which there is a conflict of evidence between the main prosecution witness and the defendant. Even if evidence of adverse findings made in civil proceedings may be admissible as to credit, there are, in my opinion, strong discretionary grounds for excluding

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cross-examination about, or evidence of, the authority findings and any associated or interconnected findings made by Barlow J. That would not exclude all the findings. However, in the circumstances it is unnecessary to make a ruling on each relevant finding.

Abuse of Process

153 I agree the trial Judge did not err in failing to uphold the appellant's claim that the prosecution was an abuse of process because of the outcome in the Family Court proceedings.

154 The doctrine of abuse of process arises for consideration in circumstances where there is no res judicata, issue estoppel, autrefois convict or acquit or double jeopardy. It has been applied in a wide variety of situations, including where there is a collateral attack on an earlier criminal verdict in subsequent civil proceedings (Hunter v Chief Constable of the West Midlands Police [1982] AC 529); when an issue determined in earlier civil proceedings is sought to be relitigated in subsequent civil proceedings (Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 at 203 - 205); and where an issue determined in earlier criminal proceedings is sought to be relitigated in subsequent criminal proceedings (R v Carroll (2002) 213 CLR 635; Rogers v The Queen (1994) 181 CLR 251).

155 This is a case where an issue determined in earlier civil proceedings is sought to be relitigated in subsequent criminal proceedings. The Court of Appeal in New South Wales recently considered that situation in Adler v Director of Public Prosecutions (2004) 51 ACSR 1. In that case, the Australian Securities and Investments Commission ("ASIC") had successfully taken action against Mr Adler under the civil penalty provisions of the Corporations Act 2001 (Cth) ("CA"). The civil penalty provisions of the CA have a penal character: Rich v Australian Securities and Investments Commission [2004] HCA 42.

156 Subsequently Mr Adler was charged by the Commonwealth Director of Public Prosecutions on an indictment containing five counts of offences under the CA. There were differences between the material elements of the civil causes of action and the elements of the criminal offences. However, the trial Judge in the civil penalty action found all the facts sufficient to engage the criminal provisions invoked by the DPP, such findings being within the particulars accompanying the statement of claim. The appellant applied for a permanent stay of the criminal proceedings on the ground of abuse of process. The trial Judge refused the application and the refusal was upheld in the Court of Appeal.

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157 The Court of Appeal upheld the refusal to stay the criminal proceedings on two grounds. Firstly, there was no possibility of manifest inconsistency with the outcome of the earlier proceedings. In particular, if the appellant was acquitted of the criminal charges, that would not be inconsistent with the orders made in the civil penalty proceedings because of the different standards of proof. Secondly, the charges were the first occasion in which the appellant was placed in jeopardy of conviction for a criminal offence, thereby distinguishing Carroll and related cases.

158 The scope of the abuse of process doctrine where both relevant proceedings are criminal and the policy underpinnings for the application of the rule in that context were considered by the High Court in Carroll. A direct inconsistency between the new charge and the earlier verdict such as to contradict the earlier verdict will render the subsequent proceedings an abuse of process. However, the absence of a direct inconsistency may, or may not, depending on the circumstances, give rise to an abuse of process: Carroll at [47] and [50], per Gleeson CJ and Hayne J. The rationale for the rule in this context is the need for finality where the power of the State has previously been deployed against an individual (Carroll (supra) at [22], [50], per Gleeson CJ and Hayne J).

159 The appellant in this case relies on the inconsistencies between the criminal charges (and guilty verdicts) and the authority findings made in the Family Court. I will assume for the purposes of argument that the charges in the criminal proceedings and the findings in the Family Court proceedings addressed the same conduct.

160 The public policy considerations identified in Carroll do not justify the application of the abuse principles where the inconsistency derives from findings made in prior civil proceedings. Parties in civil proceedings choose the issues they wish to contest and the evidence to support those issues. It would be contrary to the public interest if the conduct of matters by litigants in civil proceedings could prevent the pursuit by the State of alleged breaches of the criminal law. For example, in this case the appellant opposed three applications made by Mr Roberts for a stay of the Family Court proceedings until after the determination of the criminal proceedings. Further, save in situations where there is a direct inconsistency between prior and subsequent criminal proceedings, the fact of a possible inconsistency in outcomes is not determinative: Mickelberg v Perth Mint (supra, on the weight to be given to the conviction) and Rippon (supra) at p 204.

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Unreasonable and Inconsistent Verdicts

161 The appellant's case at trial was that she had her husband's express or implied general authority to sign his signature on his cheques (and alter those cheques) or had an honest belief she had such authority. The implication of general authority derives from the appellant's evidence that her husband was (at least) aware of and acquiesced in her conduct. The prosecution case was that the appellant had no authority of any nature to sign his signature on any of the cheques. I agree with Templeman J that it can be inferred from the questions asked by the jury that they had in mind the possibility that the appellant had some limited implied authority to sign or alter cheques by reference to the purpose or use to which the funds were put and which excluded expenses that benefited the appellant. I accept that the test of unreasonableness of verdicts is not to be determined solely by reference to the way the prosecution and defence conducted their cases if another factual avenue is open on the evidence. In that event, the trial Judge is obliged to direct the jury on the subject by identifying the law and applying it to the facts. However, I am not satisfied that limited authority by reference to the use to which the funds were put was open in this case because the State did not challenge the appellant's evidence that the money was spent on what may generally be described as household expenses (which includes money spent on herself). It follows that the use of funds should not be a relevant distinction when considering the appellant's honest belief in her authority to sign or alter cheques.

162 However, purpose or use of the funds figured in the State's detailed analysis of the verdicts in an attempt to identify a rational basis for them. The appellant was charged with 89 counts of forging cheques and an equal number of counts of uttering those cheques. She was convicted on 41 counts of forgery and of uttering. Save with respect to discrete matters (such as subsequent alterations to cheques signed by Mr Roberts or the possible withdrawal of authority after a dispute in February 2000), the issue of authority is largely all or nothing. The same is not necessarily the case if honest belief was the determinant of guilt or innocence. Even so, it is difficult to identify a reasonable basis in the evidence or in logic for all of the verdicts. For example, the jury acquitted the appellant of all but two counts when the cheque was payable to cash, but convicted her of a number of counts where the cheque was made payable to her ANZ account for a similar range of amounts. Similarly, she was acquitted of

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some (but not all) counts when the cheques were payable to Myer, but was found guilty in relation to cheques payable to Woolworths, Buckles and Bows and a chemist. The State's explanation for the acquittals in relation to the cash cheques was that the jury could not have known what the money was spent on and were therefore unable to assess the appellant's belief in her authority. However, the purpose of the payments was also unknown for cheques drawn in favour of other payees (including Myer, Woolworths and the appellant) for which she was convicted.

163 The State's analysis of the verdicts discloses that considerations of limited authority by reference to the use of the funds, or a mistaken belief in such limited authority, intruded into the jury's deliberations notwithstanding that the State did not challenge the appellant's characterisation of her spending as being for household expenses, the trial Judge did not direct the jury on this issue and the documentary evidence on use was incomplete. Although this matter is not directly raised in the ground of appeal under consideration, it arises incidentally and itself gives rise to a miscarriage of justice that justifies setting aside the convictions.

164 JENKINS J: I have had the advantage of reading in draft the reasons of Templeman and McLure JJ. I gratefully adopt the background material Templeman J has included. I also respectively agree with his reasons and conclusions in respect to grounds 3, 4, 6 and 7 and have nothing further to add in respect to them. These are my reasons with respect to the remaining grounds. For convenience I will deal with them in the same order as Templeman J.

Ground 10

165 For the reasons given by Templeman J I agree that it was otiose for the learned trial Judge to direct the jury with respect to an honest claim of right pursuant to the Criminal Code, s 22.

166 The appellant's submission is that, regardless of the application of s 22, an honest claim of right would negate an intent to defraud which is an element of the offences of forgery and uttering.

167 At common law and in statutory offences, based on the common law, it is established that proof of fraud requires proof that the accused used dishonest means to deprive another of money or property or put the money or property of that other person at risk or prejudicially affect that person in respect to some lawful right, interest, opportunity or advantage knowing that he or she has no right to deprive that person of that money or property or to prejudice his or her interests: Peters v The Queen

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(1998) 192 CLR 493 at [30] per Toohey and Gaudron JJ. This definition appears to have been accepted by a majority of the court in MacLeod v The Queen (2003) 214 CLR 230 at [35]. Thus, proof of an intent to defraud requires proof that an accused intended to use dishonest means to deprive another of money or property or put the money or property of that other person at risk or prejudicially affect that person in respect to some lawful right, interest, opportunity or advantage knowing that he or she has no right to deprive that person of that money or property or to prejudice his or her interests.

168 The other two members of the majority in Peters, McHugh and Gummow JJ did not express themselves in the same manner. At [75] McHugh J (with whom Gummow J agreed) said:

"Insofar as it is meaningful to speak of men's rea in the crime of conspiracy to defraud, men's rea means the intention to prejudice the interests of a third person by the use of means that are dishonest."

169 In respect to an honest claim of right he said at [84], after referring to a factual example of a conspiracy to defraud he said:

"If the appellant had claimed that he had or believed that he had some contractual or other right to receive and copy the films, the offence would not have been made out unless the prosecution negatived the claim beyond reasonable doubt."

170 To my knowledge, there is no authoritative decision since Peters which attempts to apply the principles therein to the Code and, in particular, to a provision in the Code such as s 473 which has an element of it a specific intent to defraud, in the light of s 22.

171 In my view it is unnecessary for me to examine all the issues that arise in such an application because I have determined, that even accepting that the prosecution had to prove, as part of proof of an intent to defraud, that the appellant knew that she had no right to deprive Mr Roberts of money or property or to prejudice his interests, a claim of right was not raised by the evidence and the learned trial Judge was correct not to leave it as an issue to the jury.

172 However, my view is that the definition of fraud as stated by Toohey and Gaudron JJ, with the necessary modifications to adapt it to proof of an intent to defraud applies to proof of the intent to defraud element in the Criminal Code, s 473. This means that the prosecution is required to

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prove that an accused believed that he or she had no lawful right to deprive the alleged victim of their money or property or to prejudice their interests. This definition of an intent to defraud strengthens the arguments for offences under the Criminal Code, s 473 not to be regarded as offences with respect to property for the purposes of the Criminal Code, s 22. This is because if, as I would find, s 473 requires proof that an accused was not acting under an honest claim of right, there is simply no work for s 22 to do.

173 Accepting that the prosecution is obliged to prove that an accused knew that he or she did not have a legal right to the alleged victim's property or to prejudice their interests, the first matter to determine is when, as a matter of principle, the issue of such a right has to be left to the jury in cases of allegations of forging and uttering. Guidance can be obtained from the comments of the Justices in Peters case. At [31] Toohey and Gaudron JJ said:

"It is necessary to note one practical matter with respect to the knowledge that must be proved before there can be a conviction for conspiracy to defraud. As a matter of ordinary experience, it will generally be inferred from an agreement to use dishonest means to deprive another of his or her property or to imperil his or her rights or interests that the parties to that agreement knew they had no right to that property or to prejudice those rights or interests. And as with the defence of honest claim of legal right, it will be taken that there is no issue in that regard unless the absence of knowledge or, which is the same thing, belief as to the legal right is specifically raised and there is some evidence to that effect."

174 In my view, McHugh J's comments, which I have quoted above, are to a similar effect.

175 In MacLeod at [39] Gleeson CJ, Gummow and Hayne JJ said:

"… the notion of 'claim of right' is a manifestation of the general principle identified by Dawson J in Waldon v Hensla, namely that it is: 'always necessary for the prosecution to prove the intent which forms an ingredient of a particular crime and any honestly held belief, whether reasonable or not, which is inconsistent with the existence of that intent will afford a defence'.

Hence the statement by Glanville Williams:

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'The evidential burden of a claim of right is on the accused, but the persuasive burden is on the prosecution to rebut it'."

176 It is only if the accused claims that he or she believes that they had a legal right to deprive the alleged victim of their money or property or to prejudice their interests that the matter falls to be negatived by the prosecution and left to the jury.

177 Turning now to the facts of this case, the defence case was opened by the appellant's counsel. He told the jury at TS 901:

"… My role will be to explain the evidence that the defence will be calling and what the defence case is.

… A crucial question of fact in this case that you must decide will be whether or not the prosecution has proved beyond reasonable doubt that Russell Roberts did not give [the appellant] authority to sign cheques on his behalf and that she did not honestly believe that she had that authority.

… On the crucial question of fact whether or not she had her husband's authority to sign his signature, she will tell you that she did and that she certainly believed that she did, otherwise she would not have signed his signature on the hundreds of cheques that she did throughout the course of the entire marriage.

…

[The appellant] does not deny that she signed her husband's signature not just on many of the cheques that are counts on the indictment but on many, many more. She will tell you that she did so with his knowledge and with his authority. These cheques that she signed, they were all, I repeat, to pay expenses for the household, to reimburse her Amex card or sometimes her ANZ account.

…

I use the term 'household expenses' to include items such as her clothing and her jewellery which she bought from time to time.

He expected her to dress very well … dress in style and keep the household in a neat and orderly manner.

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…

She was not drawing cheques to make investments for herself. She wasn't drawing cheques to squirrel them away or for her own – a frolic of her own."

178 He went on to briefly justify what might have appeared to the jury to be extravagant expenses but in the opening he did not at any time indicate that it was the defence case that the appellant knew or believed that she had a right to deprive Mr Roberts of the money or to prejudice his interests or those of BankWest because she had a legal right to the money to pay for personal and family expenses.

179 The appellant gave evidence and it was faithful to her counsel's opening remarks. Although the appellant gave evidence that she needed the money to pay for the costs of the lifestyle that Mr Roberts wanted, she expressly denied that her actions were done with any intention other than to act in accordance with the authority given to her by Mr Roberts. Her evidence was to the effect that she believed that she had no right to prejudice Mr Roberts' economic interests in the manner alleged by the prosecution unless she had Mr Roberts' authority to do so. At TS 969 her evidence was:

"Mrs Roberts, when your husband confronted you on 9 March – on or about that date – of the year 2000 with respect to the $10,250 cheque you had written out a couple of days earlier, why did you say to him, ' I deserve that money'?---I certainly did not say that to him.

He's mistaken about that, is he?---Absolutely.

Did you believe, back on that day, that you deserved that $10,250?---It's irrelevant. I didn't say that.

No, no, that's not the question. Did you believe, back on that day, that you deserved that $10,250?---It wouldn't have crossed my mind. I wouldn't have been thinking about anything- whether I deserved anything or not.

When you wrote out that cheque to American Express of $10,250, did you believe then that you deserved that money?---I didn't think of it like that. It was to get Russell's attention. Russell had not been speaking to me. The situation in the house was intolerable. I did it to get Russell's attention.

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I'm sorry, you wrote out a cheque to American Express for $10,250, which you banked, to get your husband's attention?---So he would talk to me

What about ?--- about the state of our marriage.

What about the other cheques that you signed on or about 7 March?---For the same reason.

For the same reason?---Yes."

180 These questions and answers were in respect to specific cheques written towards the end of the relevant periods. At TS 972 she gave the following evidence:

"You see, wasn't it the case that the reason for this confrontation was that you had signed, in his name, an unauthorised cheque for $10,250?---Yes, I had signed the cheque.

Yes, but it was unauthorised and that's why he was confronting you about it?---I had his authority to sign the cheques. I would not have been game to ever sign his cheques if he didn't

Then why would he confront you ?--- if he hadn't given me the authority."

181 If the appellant had expressed any belief in a right to prejudice Mr Roberts' economic interests, absent his authority, a further issue would have arisen as to whether she believed it was a right based in law or morality but no such issue arose because of her express evidence that she would not have done what she did absent the authority of Mr Roberts.

182 At no time was the learned trial Judge asked to give a direction relating to a claim of right.

183 The appellant relies upon what the learned trial Judge said in his sentencing remarks to the effect that he believed that when Mr Roberts taxed her about her conduct she gave the explanation that "I deserve it". He found that this statement manifested her attitude towards fiscal issues throughout the marriage. In my opinion this comment by the learned trial Judge reflects no more than a finding that the appellant believed that she morally deserved the money. It is a different thing all together to say that she alleged that she had a legal right to the money. The same can be said with respect to similar comments made by the prosecutor.

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184 The closing address made by the appellant's counsel did not raise an honest claim of right. The address commenced with the following submission:

"Unless you find beyond reasonable doubt that [the appellant] did not have Russell Roberts' authority to sign and alter his signature and that she did not honestly believe that she had that authority, you must acquit. [The appellant's] evidence was that she did have that authority and that she signed many hundreds of cheques. As for the altered cheques, [the appellant's] evidence was that she had his authority to sign cheques so she therefore assumed that she had his authority to alter them."

185 Further, there were tactical reasons for the defence not wanting to raise a claim of right. To have done so would have undermined the appellant's evidence that she acted only with the authority of Mr Roberts. In the way in which the case was run, to raise the defence of claim of right was inconsistent with her claim of authority. Further, it suggested that she would have a motive to act without Mr Roberts' authority and this, as I have said, would undermine her evidence that she only acted because she had such authority.

186 In all these circumstances, I am of the view that the appellant is bound by the evidence given at trial and the way in which she ran her case at trial. For these reasons I would not allow this ground of appeal.

Ground 5

187 As I have said I have had the advantage of reading the draft reasons of McLure J. I am in full agreement with her in respect to this ground save that she found it unnecessary to make a final ruling on this ground, presumably because she would allow the appeal with respect to other grounds in any event.

188 I respectfully adopt the reasoning of McLure J and on the basis of that reasoning I would dismiss this ground of appeal.

Ground 8

189 As Templeman J has said, evidence of habit may be admissible. The New South Wales Court of Criminal Appeal said in R v Murphy (1985) 4 NSWLR 42 at 63:

"All cases, and indeed commonsense, would suggest that evidence of habit, and particularly of negative habit, to be of

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probative value, must be seen to have some bearing upon the situation in which the habit or non-habit is claimed to have been followed."

190 In my view, evidence of the habitual way in which Mr Roberts had operated his bank account over many years was relevant and probative evidence. As the learned trial Judge said, "standing alone his fiscal habits prior to his marriage may be of little probative value but in combination of other facts the position may well be otherwise".

191 I do not see that the evidence had prejudicial value as I understand that phrase. I would dismiss this ground of appeal.

Grounds 1 and 2

192 As Templeman and McLure JJ have given different, albeit only slightly, reasons for their decisions in respect to these grounds it is necessary for me to indicate that I agree substantially with the reasons of Templeman J in respect to them.

193 The only point that I would make is in respect to his Honour's comments that if a "defence" based on implied authority was open it would have been necessary for the learned trial Judge to give further directions to the jury about how it should approach such an issue. I would not categorise the issue as being a defence. The obligation was on the State to prove that the appellant did not have the authority of Mr Roberts. Authority included both express and implied authority. Once the jury raised the issue of implied authority, I agree with Templeman J that much more assistance needed to be given to the jury, than was given on the issue.

Ground 9

194 I agree with Templeman J for the reasons given by him, that it is not necessary to deal with this ground. In my case this is because I would allow the appeal in respect to grounds 1 and 2.

Retrial

195 I gratefully adopt the legal principles that are set out by Templeman J.

196 In my opinion there was and remains an issue for the jury as to whether the appellant is guilty of these offences. It is not appropriate for this Court to usurp the role of the jury by directing that a verdict of

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acquittal be entered in respect to them. That is not to say that in the exercise of the prosecutorial discretion as to whether to retry the appellant, the State should not take into account the background of this matter and the matters raised by the appellant in her evidence in the first trial.

197 I would allow the appeal, quash the convictions and order a retrial.