Sadler v The King

Case [2023] SASCA 63

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SADLER v THE KING

[2023] SASCA 63

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice Nicholson)

15 June 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE

CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY

Appeal against conviction

The appellant has appealed against a conviction following a trial by jury in the District Court for one count of dishonest dealings with documents, contrary to section 140(4) of the Criminal Law Consolidation Act 1935 (SA). The appeal proceeded on the basis of ground 2, in respect of which permission had been granted, and amended grounds 4 and 5, with respect to which permission to appeal is still required.

The appellant was the proprietor of a bookstore, and in 2012 was hit by a car and injured. A claim was made against the driver who was insured with Allianz Australia. As part of the claim for economic loss, the appellant included a claim for wages due but unpaid with respect to hours allegedly worked in the bookstore by her then boyfriend, RS. In support of her claim, the appellant emailed her solicitors photographs of each page of two time books setting out hours worked by RS during 2015 and 2016. The prosecution contended that the time books were false and gave a misleading impression of the hours allegedly worked by RS.

The amended appeal grounds included that the element relating to the falsity of the timebooks was not sufficiently particularised such that the Court could know what entries in the timebook the jury found were false (Ground 2); that there was a miscarriage of justice occasioned by the trial Judge’s directions on discreditable conduct (Ground 4); and there was a miscarriage of justice occasioned by the inadequacy of the trial judge’s directions on lies (Ground 5).

Held (per Doyle and Bleby JJA) dismissing the appeal:

1.As to grounds 4 and 5, the Judge’s directions were inadequate and resulted in a miscarriage of justice. 

2.As to ground 2, no unanimity was required with respect to the falsity of any particular page or entry in the time books.  Ground 2 is dismissed.

3.Applying the proviso, the appeal is dismissed.

Held (per Nicholson AJA) dissenting and allowing the appeal:

1.      The appellant has succeeded in establishing appeal grounds 2, 4 and 5.

2.      The appeal is allowed.

3.      The conviction is quashed and the matter remitted to the District Court for retrial.

Criminal Law Consolidation Act 1935 (SA) ss 130, 140; Criminal Procedure Act 1921 (SA) s 159; Evidence Act 1929 (SA) ss 34P, 34R, 34Q; Juries Act 1927

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Sadler v The King [2023] SASCA 63
Case
[2023] SASCA 63
Decision Date

CaseChat Overview and Summary

The appeal concerned Allison Jane Sadler, who was convicted by a jury in the District Court of dishonest dealings with documents. The prosecution's case was that Sadler committed the offence by emailing photographs of two time books to her solicitor, which purportedly recorded hours worked by her then-boyfriend, RS, during a period when Sadler was incapacitated. The prosecution contended that these time books were false, as they gave a misleading impression of the hours RS had worked.

The legal issues before the court included whether the prosecution had proven beyond reasonable doubt that Sadler knew the time books were false and intended to deceive Allianz, the claims manager for her motor accident claim. Specifically, the court considered whether the evidence, particularly that contradicting the time book entries, left open a reasonable possibility that RS had worked the recorded hours, or that the books were completed retrospectively without Sadler's close examination. The court also examined whether Sadler was simply following professional advice and if the lack of payment to RS indicated a lack of motivation to perpetrate fraud.

The court applied the proviso to section 6(1) of the Criminal Appeals Act 1913 (SA), which allows an appeal to be dismissed if the court finds that no substantial miscarriage of justice has occurred. While acknowledging that certain grounds of appeal, specifically amended grounds 4 and 5, were established, the majority of the court concluded that the appeal should be dismissed. This conclusion was based on the reasoning that, despite the established grounds, the evidence, when considered as a whole, did not lead to a substantial miscarriage of justice. The court also addressed the issue of jury unanimity, determining that it was not necessary for the jury to be unanimous on the falsity of any particular page or entry in the time books, as these constituted the evidentiary pathway to proving the essential ingredient of the charge.

Ultimately, the appeal was dismissed. The court granted permission to appeal on grounds 4 and 5 but found that the proviso should be applied, meaning the conviction would stand. The court also dismissed the appeal on ground 2, finding that the verdict was not uncertain due to a lack of sufficient particularisation and that the jury did not need to be in unanimous agreement regarding the falsity of specific entries.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Sections 34P and 34R are in these terms.34P—Evidence of discreditable conduct(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and(b) is inadmissible for that purpose (impermissible use); and(c) subject to subsection (2), is inadmissible for any other purpose.(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).34R—Trial directions(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly. During the hearing of the appeal, there were substantial interchanges concerning the relationship between “discreditable conduct”, which is not specifically defined in the Evidence Act 1929 for the purpose of section 34P or any other purpose, and lies conveyed by an accused. The question of whether a proved lie by an accused will qualify, in every case, as discreditable conduct and attract the requirements of sections 34P, 34Q[68] and 34R, was explored at length. It is unnecessary in this case to resolve that interesting question. Further, it may not be possible to do so in the absence of an understanding of the particular lie in issue, the context in which it was made and the issues in dispute in a particular trial.[68] Section 34Q provides:

Decision

Reasons for decision

I would merely add that in agreeing that this is an appropriate case in which to apply the proviso, it is significant that I have rejected the appellant’s contention, under Ground 2, that an extended unanimity direction ought to have been given. Success on this ground of appeal may well have been problematic so far as the proviso is concerned.[18][18] Lane v The Queen (2018) 265 CLR 196 at [48], [50] (Kiefel CJ, Bell, Keane and Edelman JJ).Conclusion For the reasons given, I would grant permission to appeal on Grounds 4 and 5, but would dismiss the appeal. BLEBY JA: I agree with Nicholson AJA that Grounds 4 and 5 have been established. I would grant permission to appeal in respect of those grounds. I also agree, however, that this is an appropriate case in which to apply the proviso in respect of these grounds. In this regard, I gratefully adopt Nicholson AJA’s reasons. With respect to Ground 2, I agree with Nicholson AJA that the verdict is not uncertain for want of sufficient particularisation. However, I agree with Doyle JA, for the reasons his Honour has given, that it was not necessary that the jury be in unanimous agreement as to the falsity of any particular page or entry in the time books. I agree with his Honour that these constituted the evidentiary pathway to satisfaction of the essential ingredient of the charge, being the falsity of the time books. I would therefore dismiss the appeal on Ground 2. It follows that I would dismiss the appeal.NICHOLSON AJA.Introduction and overview Allison Jane Sadler has appealed against her conviction, following a trial by jury in the District Court, for the offence, as described in the Information, Dishonest Dealings with Documents.[19] The appeal proceeded on the basis of appeal ground 2 with respect to which permission to appeal had earlier been granted and amended appeal grounds 4 and 5 with respect to which permission to appeal is still required. Appeal grounds 1 and 3 and amended appeal grounds 6, 7 and 8 have been abandoned by the appellant. [19] Contrary to subsection 140(4) of the Criminal Law Consolidation Act 1953 (SA). At all material times, the appellant was the proprietor of a bookstore in a regional town in South Australia. In 2012, she was hit by a car and injured whilst riding her bicycle. She made a claim against the driver who was insured under the State’s compulsory motor accident third party insurance scheme with respect to which Allianz Australia was the claims manager. Throughout the period 2013 to 2015, the appellant’s solicitors, Radbone and Associates, and Allianz communicated back and forth with respect to the claim. In late 2015, the appellant commenced civil proceedings in the District Court and steps were taken to advance her claim and to prepare it for trial or extra-curial resolution. The appellant included, as part of her claim for economic loss, a claim for wages due but unpaid with respect to hours allegedly worked in the bookstore by her then boyfriend, RS, during the period of the appellant’s physical incapacitation. In support of that part of her claim, the appellant emailed to her solicitor photographs of each page of two time books which purportedly recorded hours worked by RS during 2015 and 2016.[20]The prosecution contended, in its opening to the jury,[21] that:By sending these emails attaching photographs of the time books the [appellant] committed the offence in question in this trial.It was not the creation of the time books[22] but their transmission that was relied on as the actus reus of the offence.The prosecution contended[23] that the “time books were false” in that they “gave a misleading impression that RS had worked in the bookstore as per the hours recorded …”. [20] Exhibits P10 and P11 are the emailed copy pages and exhibits P10A and P11A are the original time books.[21] Trial transcript (T) 13.[22] The person who recorded the hours worked by RS in the time books was not made clear on the evidence and this was not an element of the offence to be proved.[23] T14-15.

Ratio Decidendi

Legal Principle Established

On the question of whether the prosecution had proved beyond reasonable doubt that the appellant had knowledge of the falsity of the time books and an intention to deceive Allianz, the appellant relied on a number of contentions and aspects of the evidence including the following.(i)The evidence as a whole, particularly that purporting to contradict the time book entries leaves open the reasonable possibility that RS worked to the extent indicated by the time books. Counsel at trial offered explanations for a number of the apparent inconsistencies disclosed by exhibit P1 (the evidence chart). (ii)The evidence as a whole, leaves open the reasonable possibility that the time books were filled out by RS retrospectively and close to the time the appellant produced them in October 2016 without looking at or checking the contents.(iii)The reasonable possibility that the appellant, at all material times, was simply following professional advice had not been excluded.(iv)The prosecution case depended on an assumption that RS had to be at the bookshop to be working a shift – that he never left for a break or a meal or to run errands.(v)The fact that RS was never paid was consistent with an agreement to pay in the future if and when the appellant was in a financial position to do so. As such, there was no motivation to perpetuate a fraud. RS was always to be reimbursed from settlement moneys received referrable to his work.(vi)The evidence of Mr Tippett as to the number of hours required to clear up the books in the shop and the shed and the evidence of Mr Millhouse, Mr Said, and Mr Mace was consistent with a substantial amount of work being done by RS.(vii)The evidence of Nicole Uys was not reliable and at times equivocal and the evidence of Sharmarie Flavel, for various reasons, was not inconsistent with RS having worked on her Tuesdays in accordance with the time books.(viii)It cannot be assumed that the appellant was present for the whole of the shift times recorded for RS. Counsel submitted.[126]If she doesn’t know all of the exact movements of [RS], then how could she possibly know all the timebooks are false when she comes to submit them on. 14 October 2016. She simply cannot.(ix)One cannot assume from the summary of the movements of RS set out in the colour coded chart, exhibit P1, that the appellant must have known that the time books were false. The appellant did not have the advantage of the colour coded chart.(x)Nor did the appellant have available to her, at the time she produced the time books, Mrs May’s report and spreadsheets. The appellant had hired Mrs May to do the calculations; she had no idea what might be owing. Further, she did not lie to Mrs May and had no ulterior motive to do so. (xi)A lack of care and lack of attention to detail is not the same as dishonesty or knowledge of the contents of the time books. Further, the evidence is to the effect that they likely were retrospectively filled out (see earlier discussion). As such, the appellant had very little opportunity, or reason, to examine them. She needed to provide them quickly to her solicitor. Unless she closely considered the time books, which is unlikely, she could not know if they were false or accurate; she may well have, with some justification, assumed the latter. (xii)The letter of demand to Allianz is no more than a very poor attempt by a very scared, panicked person (having been arrested) trying to extricate herself from a false allegation of fraud. The letter was sent 18 months after 14 October 2016 and cannot be evidence of her state of mind back then.[126] T420.25-28.Consideration of the knowledge question