Ruddell v The Queen

[2006] HCATrans 141

[2006] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B92 of 2005

B e t w e e n -

SARAH JANE RUDDELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2006, AT 12.37 PM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear with MR A.W. MOYNIHAN of counsel for the applicant.  (instructed by Legal Aid Queensland)

MS S.G. BAIN:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Byrne.

MR BYRNE:   As your Honours are clearly aware, lawyers who practise in this State in the criminal jurisdiction have a certain affection for the Criminal Code.  This case involves the interpretation of what we say is a fundamental part of the Criminal Code.  Part of the reason for the fondness of practitioners is that the Code deals not only with substantive law but also with matters of criminal practice and pleading so far as the criminal law is concerned.  In De Simoni v The Queen it was described as a fundamental and important part of those procedural aspects, the requirement that a sentence aggravating circumstance be charged in the indictment if it is to be relied upon by the prosecution and ultimately by the sentencing judge.  May I take your Honours then to page 1B of the application book where your Honours will see the indictment in this matter.

KIRBY J:   This is basically a question of the interpretation of the Code, is it not?

MR BYRNE:   It is, your Honour.

KIRBY J:   Would one not normally leave that question to those who have the most affection for it?

MR BYRNE:   That is certainly correct, your Honour.

KIRBY J:   And knowledge about it?

MR BYRNE:   That is certainly also correct.  However, the affection extends beyond the Court and to those practising on both sides of the Bar table.  We are here today to try and correct what we say, with great respect, was an error of interpretation of some magnitude affecting how matters will be pleaded and ultimately sentenced.

GUMMOW J:   You took us to 1B.

MR BYRNE:   Yes.  Your Honours will see the indictment.  It alleges in effect ‑ ‑ ‑

GUMMOW J:   Stealing as a servant.

MR BYRNE:   Stealing as a servant two things:  one, sums of money and, secondly, a quantity of hairdressing products.  There is no value aggravating circumstance there alleged and under the Code the relevant value for stealing is $5000.  What the Crown sought to prove in this case was that the sums of money said to be stolen were some $28,228 and the quantity – and we emphasise the singular use of that word because it seems to have some significance in the judgment of the Court of Appeal ultimately – of hairdressing products was said to be worth some $16,000.  Those are the two types of property alleged to have been stolen and both have a potential value on the prosecution case in excess of the $5000 aggravating circumstance. 

The directions given then to the jury about their task can be seen relevantly, we would submit, on pages 8 to 9 of the application book starting at about line 42 of page 8 where the learned trial judge directed the jury that:

the Crown doesn’t have to prove that every cent of the $28,228.30 . . . only has to prove a taking intending to keep it –

The takings on the facts here stretched from $6 up to an amount below the aggravating factor of $5000.  Just going on to page 9 at about line 30, it is noted by the trial judge that the Crown would have difficulty in establishing a number of the items or the moneys taken at different times.  So this is not an all or nothing case; this was a case where there was a need for aggravation and determination by the jury of what was stolen and what was, if it came to it, to be sentenced upon.

GUMMOW J:   The indictment did say “stole sums of money”, did it not?

MR BYRNE:   It did indeed, your Honour.

GUMMOW J:   Justice McPherson attached some significance to that, did he not?

MR BYRNE:   That is the point we ultimately make.  His Honour, with whom the other two justices agreed, gave total significance to the fact that plural “sums of money” was used.  No attention seems to have been directed to the fact that the other part or the other limb of the property was “a quantity of hairdressing products”.  That is, a collective noun is used to deal with a singular – if it is necessary to go there, given the Acts Interpretation Act – and we will take your Honours to our arguments on that in ‑ ‑ ‑

KIRBY J:   As I understand it, a special verdict was taken from the jury on the question of the hairdressing products, is that correct?

MR BYRNE:   Special verdicts were left to the jury.  The jury convicted in respect to the money but could not reach a verdict in respect to the products.

KIRBY J:   You make no complaint about the outcome on the products?

MR BYRNE:   No, certainly not.

KIRBY J:   So there is no risk that your client is going to be tried again on the products.

MR BYRNE:   His Honour in fact said to the Crown after the jury had failed to agree that he agreed with at least that conclusion and that the evidence was such that it would have been unsafe for them to convict in respect to the products.

KIRBY J:   So we can put that to one side.

MR BYRNE:   Indeed.

KIRBY J:   Taking the issue as one of a miscarriage, which is essentially what De Simoni is addressing itself to, that people should not have the ante upped by reference to uncharged acts and uncharged crimes, but looking at the ultimate sentence imposed in this case for the 28,000, it does not seem to be a seriously unjust one for stealing by a servant.

MR BYRNE:   Stealing by a servant of $28,000, one could not complain about the sentence imposed.  The complaint we seek to make is that the jury did not determine what the amount was.  In the absence of the aggravating circumstance being alleged, the applicant did not have the benefit of a determination by the jury as to whether this was an aggravating circumstance of stealing.

KIRBY J:   Is it not inherent in the jury’s verdict that they accepted the Crown case of the stealing of $28,000?

MR BYRNE:   That is why we took your Honours to what is contained at page 8 of the application book where his Honour the trial judge directed the jury that:

the Crown doesn’t have to prove that every cent of the $28,228.30 . . . The Crown only has to prove a taking intending to keep it on one occasion.

That is in line with long-established authority in Queensland that where there is stealing of a number of items or a collection of items, that it is sufficient for the jury to convict if one is found.  But the point of importance here we say is that where the jury’s verdict is critical to the circumstance of aggravation, then that is something which should be alleged and which an applicant or defendant should have the benefit of a jury’s determination.

KIRBY J:   Did your client accept any of the sums of money?

MR BYRNE:   No, she gave evidence denying the sums of money and there was also a real dichotomy on the evidence, to digress briefly.  The Crown case essentially was that she used her own PIN number to access the computer on a number of the transactions.  There was also evidence that another PIN number of another employee was used and the Crown sought to say that must have been the applicant.  But it was well open to the jury to determine that they were convicting on some of those.  Indeed, there was one where the applicant could effectively show she was in Rockhampton, not Gladstone, at the time of one of the transactions using this PIN, so it was not a case of all or nothing.  It was a case where the jury could have discriminated and it was essential and crucial for the sentencing judge, as his Honour became, to know on what he was to impose sentence.

GUMMOW J:   This is an appeal against sentence and at the end of the day and in this Court, what is the answer to the point Justice Kirby put to you?  Two years, $28,000.  Interesting questions, maybe of the Code but ‑ ‑ ‑

MR BYRNE:   The difficulty with it is firstly that the judge, we say, was not entitled to sentence on $28,000 absent the circumstance of aggravation.  The second answer we make is that the interpretation of the Code by the Court of Appeal in this case is incorrect, with great respect, and it is an interpretation which has continued, that is, the prosecution continued to charge in this form.  One can leap immediately to what we say is the conclusion which shows the absurdity of the conclusion. 

In effect, what the Court of Appeal said and what our friend puts against us is the conclusion, that is 28,000, stealing as a servant, two years.  That is reasonable.  One can analyse whether the construction of the Code is correct, however, when one looks at – if one takes out the stealing as a servant as a circumstance of aggravation and leaves stealing, the interpretation would be what is the maximum sentence?  The Court of Appeal has not answered this directly, but what is the maximum sentence?  The answer must be, however, that if, for example - because the Court of Appeal uses the analogy of animals, we may use that – if a beast, that is a cow, worth $5000 was stolen by a non‑employee and that is alleged, the maximum sentence becomes $10,000 because of the allegation of the circumstance of aggravation.

What the interpretation of the Code here put forward by the Court of Appeal would mean that if two beasts worth $4000 each were put in the indictment, that would be less serious than the one because the maximum would be five years imprisonment.  The same argument goes on.  If a herd of cattle, using the collective noun, of 100 beasts worth $4000 each, that too under this construction is less serious than the one beast worth $5000.  That is what we say must flow from the interpretation reached by the Court of Appeal.  That is the second answer to what your Honour Justice Gummow puts to us.

The point of general importance here is the construction of the Code as well as the personal injustice to the applicant.  In the Court of Appeal the relevant paragraphs are in the judgment of Mr Justice McPherson in paragraphs [9] and [10].  Your Honours will see firstly in paragraph [9] his Honour correctly, with respect, states that charging stealing in a composite account “has long been the practice in Queensland.”  It is specifically allowed for and legislated for in section 568(1).  We note immediately that that section which is set out in paragraph [9] states that:

In an indictment against a person for stealing property –

we emphasise the word “property” –

may be charged and proceeded against on 1 charge even though . . . 

(c)      different acts of stealing took place at different times, whether or not the different acts can be identified.

So that the Code allows for stealing one cow, two cows or 100 cows.  They can all be bundled up as property in an indictment and proceed to trial.

The next step, however, is whether it is a requirement that if the value of that property, namely the aggregate of the values of the cattle, is over $5000, then it needs to be alleged and set out in the indictment.  We say it does but the Court of Appeal in paragraph [10] interprets the Code directly opposite to that on the basis, it would seem, that special case 9, which is a circumstance of aggravation, is stated in the singular, that is, if the thing stolen is property and its value is more than $5000.

We say there are two clear and powerful answers to that.  One is the Acts Interpretation Act which the Court of Appeal refers to but dismisses on the basis that that could not have been the preferred intention of the legislature.  With due respect, it is a specific interpretative tool which would precisely fit within what is here.  If thing stolen is thing’s property, then that is sums of money.  We say that is a proper interpretation.

We also go further though and say it is not necessary to use or have resort to that tool because here the thing stolen was sums of money, just as the thing stolen in the other circumstance was a quantity of hairdressing products.  Both of those are collectives but both of them fit comfortably within the provisions of the Code with or without the Acts Interpretation Act.  Were that not so, then the conclusion which we have sought to expand upon by example becomes apparent, namely that the prosecution can charge in one indictment a number of items.  Here there were some 1,200 aggregating over the total amount, 28,000 and 16,000…..$40,000, and still have a sentence imposed without the circumstance of aggravation.  We say that is contrary to the fundamental concept involving construction which was identified in this Court in De Simoni and then later in Meaton. 

The Code, to return from whence we started, is the primary document dealing with pleading, procedural matters and substantive law.  Here they meet.

KIRBY J:   Normally sentencing has to stop at the Court of Criminal Appeal – not always because some matters of general principle are raised – and normally in Code matters the judges with experience in the Code are better able to sort these questions out.  Justice McPherson is a very experienced judge, very knowledgeable about the Code.  Normally if we become involved, there is an issue of miscarriage and a sentence which is more than two years in a case of stealing by a servant which is a serious offence even for the conviction of it.  So that the foundation for lift‑off is not really there, I think.

MR BYRNE:   Your Honour, we can put it no higher than this.  This is an important construction point under the Code.

KIRBY J:   It may be but it may arise later in a case where there is a more substantial sentence on a different charge and where if the practice persists this Court has to look at it, but in a case where there has been a conviction of stealing as a servant, which is a serious charge, the sentence of two years is not a very substantial one as sentences go.  I know it is important for your client but we have to look at matters in terms of how many cases we can do in a year and is this one that is really requiring of our attention.

MR BYRNE:   We take your Honour’s point but we have said what we seek to say in respect to the general importance.  The personal importance for the applicant here is that she was, as the Court of Appeal recognised, sentenced on the basis that she had stolen something in the order of $15,000 to $20,000.  We say that correctly understood, she should have been

sentenced on stealing less than $5,000 and that would make the two years quite an inappropriate sentence, particularly when the jury’s direction here is that they could convict on one item, which could have been somewhere between ‑ ‑ ‑

KIRBY J:   That is the strength of your argument and I understand that and I have some sympathy for it, but it is a question of whether in this case it requires our intervention, especially because it is a matter of practice and procedure under the Code and a sentencing that we would not normally become involved in.

MR BYRNE:   I do not think we can take the submissions further, your Honours.

GUMMOW J:   What is your client’s present custodial position?

MR BYRNE:   She remains in custody, your Honour.

GUMMOW J:   For how much longer?

MR BYRNE:   She will do 70 per cent of the two years before she is eligible for parole, I am instructed.

KIRBY J:   That dated from the Court of Appeal’s decision, did it?

MR BYRNE:   That dates from the sentencing in the ‑ ‑ ‑

GUMMOW J:   28 April 2005?

MR BYRNE:   That is correct, your Honour.

GUMMOW J:   Yes, we do not need to call on you, Mr Bain.

This application involves an attempt to appeal to this Court on the matter of sentence.  The applicant has raised some interesting questions concerning the requirements of the Criminal Code (Qld). The Queensland Court of Appeal, speaking through Justice McPherson, decided those questions adversely to the applicant. We are not convinced that the Court of Appeal was in error or that a miscarriage of justice has occurred necessitating the intervention by this Court.

The applicant was convicted of the serious offence of stealing as a servant.  She was sentenced to two years imprisonment.  We are not satisfied that her case raises a point upon which this Court should pass.  Special leave is refused.

We will adjourn until 2.00 pm Canberra time.

AT 12.56 PM THE MATTER WAS CONCLUDED