Sadler v The King
[2023] SASCA 63
•15 June 2023
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 (SA) s 57, referred to.
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Castle v The Queen (2016) CLR 449; Chiro v The Queen (2017) 260 CLR 425; Collins v The Queen [2020] SASCFC 96; Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (2020) 275 FCR 342; DL v The Queen (2018) 266 CLR 1; Fermanis v Western Australia [2007] WASCA 84; Fox v Percy (2003) 214 CLR 118; Hofer v The Queen (2021) 95 ALJR 937; Kalbasi v Western Australia (2018) 264 CLR 62; KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480; Lane v The Queen (2018) 265 CLR 196; Magnus v The Queen [2013] VSCA 163; Orreal v The Queen (2021) ALJR 78; Pell v The Queen (2020) 268 CLR 123; Perara-Cathcart v The Queen (2017) 260 CLR 595; Pollock v The Queen (2010) 242 CLR 233; R v Edwards (1993) 178 CLR 193; R v Forrest (2016) 125 SASR 319; R v Klamo (2008) 18 VR 644; R v McCarthy (2015) 124 SASR 190; R v Ribbon (2019) 134 SASR 328; R v Tran [2017] SASCFC 99; R v Walsh [2002] VSCA 98; R v Webb [2013] SASC 162; R v Zoneff (2000) 200 CLR 234; Ribbon v The Queen [2019] SASCFC 130; Weiss v The Queen (2005) 224 CLR 300, considered.
SADLER v THE KING
[2023] SASCA 63Court of Appeal – Criminal: Doyle and Bleby JJA & Nicholson AJA
DOYLE JA: I gratefully adopt the background to the matters raised on appeal set out in the reasons of Nicholson AJA. I shall endeavour to confine any repetition to what is necessary to explain my reasons.
I agree with Nicholson AJA that Grounds 4 and 5 (which challenge the trial judge’s directions in relation to discreditable conduct and lies) have been made out, but do not think that Ground 2 (which contends that an extended unanimity direction ought to have been given) has been made out. Having reached this different conclusion in relation to Ground 2, I am satisfied that this is an appropriate case in which to apply the proviso and so would dismiss the appeal.
Some preliminary matters
The appellant was charged with one count of dishonest dealing with a document, contrary to s 140(4) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The particulars of the charge appearing on the Information were as follows:
[The appellant] on the 14th day of October 2016 at Adelaide, Willaston or other places dishonestly engaged in conduct by producing or using a document, namely time books, knowing the document to be false and intending to deceive Allianz Australia Limited, or people generally, and by those means to benefit herself.
The terms of s 140 of the CLCA have been set out in the reasons of Nicholson AJA. It is accepted that the elements of the offence were accurately summarised by the trial judge:
1. The accused used or produced a document.
2. The document was false.
3. At the time she used or produced the document, the accused knew it was false.
4. At the time she used or produced the false document which she knew was false, the accused intended to deceive another.
A deception means a misrepresentation by words or conduct. It includes a misrepresentation about a present or past state of affairs.
5. At the time she used or produced the false document, the accused intended to benefit herself. …
6. The accused’s conduct in using or producing the false document was dishonest. …
I agree with Nicholson AJA’s reasons for concluding that the “document” relied upon by the prosecution for the purposes of establishing the s 140 offence was the 2015 and 2016 time books, with the conduct the subject of the first element said to be the appellant’s transmission or production of a copied version of those time books to her solicitor on 14 October 2016. As his Honour also explained, the prosecution case was that the time books were false in that they gave a misleading impression that RS had worked in the bookstore as per the recorded hours.
I also agree with Nicholson AJA’s reasons for concluding that the defence at trial conceded that, whilst not all entries in exhibit P1 relied upon by the prosecution had been proved false beyond a reasonable doubt, the time books as a whole presented a false account of the hours worked by RS.
Ground 2 – particulars, uncertainty and extended unanimity
The terms of Ground 2 are set out in the reasons of Nicholson AJA. The essence of the appellant’s complaint is that the verdict of the jury is uncertain because the prosecution did not particularise its allegation of falsity; it did not identify which particular entries in the time books were said to be false. The appellant argued that in order to avoid this uncertainty, the prosecution ought to have particularised its allegation of falsity, or the trial judge out to have given an extended unanimity direction.
I agree with Nicholson AJA’s reasons for concluding that the verdict was not uncertain for want of sufficient particularisation. As his Honour explains, the prosecution alleged and presented a case that focused upon the time books as the relevant document for the purposes of s 140, and alleged falsity by reference to the overall misleading impression created by those time books as to the hours worked by RS. As his Honour also explained, the presentation of the case at this level of generality complied with the terms of s 140. The prosecution was not obliged to plead or otherwise expressly particularise the specific entries or pages that it relied upon to establish falsity. It was sufficient that the evidence, as summarised in the chart which was exhibit P1, established this falsity. The fact that the jury might have disagreed as to which entries were false, or as to the extent to which the time books were false, did not render the verdict uncertain.
However, in my view, for similar reasons, an extended unanimity direction was not required.
To step back for a moment, in cases where the evidence reveals more than one pathway to guilt, a question may arise as to whether the trial judge must direct the jury that they need to be unanimous not only as to the verdict, but also as to the route or pathway by which that verdict is reached. A direction to this effect is often referred to as an ‘extended unanimity direction’.
The present case requires consideration of the second category of case identified by Phillips and Buchanan JJA (Ormiston JA) in R v Walsh:[1]
The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convince unless they are agreed upon that act which, in their opinion, does constitute the essential ingredient. In this type of case, much will depend “upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence.” When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.
[1] R v Walsh (2002) 131 A Crim R 299 at [57] (Phillips and Buchanan JJA, Ormiston JA agreeing).
This passage from Walsh has been applied or cited with approval by numerous intermediate appellate courts.[2] It was also cited with approval by the High Court in Lane v The Queen.[3]
[2] Fermanis v Western Australia (2007) 33 WAR 434 at [61] (Steytler P, Roberts-Smith and McLure JJA agreeing); R v Klamo (2008) 18 VR 644 at [75] (Maxwell P, Vincent and Neave JJA agreeing); Magnus v R (2013) 41 VR 612 at [32] (Buchanan, Ashley and Redlich JJA); R v McCarthy (2015) 124 SASR 190 at [117] (Gray J), [282] (Peek J); Lane v The Queen [2017] NSWCCA 46 at [18] (Meagher JA and Davies J); R v Ribbon (2019) 134 SASR 328 at [65] (Peek J, Parker J agreeing), [258] (Doyle J, Parker J agreeing); Country Care GroupPty Ltd v Commonwealth Director of Public Prosecutions (2020) 275 FCR 342 at [79] (Allsop CJ, Wigney and Abraham JJ).
[3] Lane v The Queen (2018) 265 CLR 196 at [45] (Kiefel CJ, Bell, Keane and Edelman JJ).
In applying this statement of principle in Fermanis v Western Australia, Steytler P (Roberts-Smith and McLure JJA agreeing) emphasised the distinction between factual conclusions as to essential ingredients of an offence, and factual conclusions merely forming part of an evidential pathway to establishing an essential ingredient:[4]
… the jury must be unanimous on all essential elements or ingredients of an offence: … Also, it seems to me that there is a plain distinction between a factual conclusion as regards the existence of an essential element of an offence, on the one hand, and factual conclusions as regards the evidence which is led for the purpose of proving that essential element, on the other. Jurors do not have to be unanimous in relation to the evidentiary route by which they make a finding with respect to an essential element of the offence. Next, it seems to me that the essential elements of an offence are not necessarily determined merely on the wording of the statute creating the offence. That is to say, the fact that the statute requires, for example, that there be deceit or fraudulent means rather than any particular form of deceit or fraudulent means does not mean that it is not essential for the jury to agree upon the particular form of deceit or fraudulent means relied upon by the prosecutor. As Elias CJ put it in Mead (at [15]), in the extract quoted above, “The statutory elements will need to be anchored to the facts relied upon by the prosecution as the basis of liability”. Finally, it appears from the cases that it will be relevant, in deciding the extent to which unanimity is required in a case run by the State on alternative bases, how the charge against the accused is formulated.
[4] Fermanis v Western Australia (2007) 33 WAR 434 at [68] (Steytler P, Roberts-Smith and McLure JJA agreeing).
In also applying this statement of principle, the Victorian Court of Appeal in Magnus v R emphasised that the issue is to be approached in a practical rather than technical manner:[5]
What elements in the particular case are essential to criminal liability and thus require unanimity is, as Elias CJ observed in R v Mead ‘a practical question not a technical one’. The essential points upon which the jury must agree extend beyond the statutory elements. What must be agreed turns not only upon the legal elements of the offence but also upon the factual elements essential to the case advanced for the prosecution and defence. Not only must there be unanimity as to the actus reus of the offence, but the elements must be ‘anchored to the facts relied upon by the prosecution as the basis of liability and put in contention by the defence. Without such agreement there is no common foundation for the verdict.’ The jury verdict will not be acceptable if ‘based upon quite disparate findings relating to the very foundations upon which the verdict rests’.
Particulars contained in a charge ensure that an accused is given notice of the case against him. They are likely to assist in identifying essential ingredients of the case upon which jury unanimity will be required. Where there are multiple particulars, each of which may be sufficient to sustain the charge, and where the evidence leaves open the possibility of a finding that only one or some of the particulars have been established, a direction as to the need for unanimity will be required. This principle, when applied in the case of fraud charges with multiple particulars, any of which could sustain a guilty verdict, would require a unanimous finding as to the particular deceit practised.
[5] Magnus v R (2013) 41 VR 612 at [46]-[47] (Buchanan, Ashley and Redlich JJA) (omitting citations).
In R v Ribbon,[6] I addressed the distinction between cases involving alternative allegations as to an essential ingredient of the offence charged, and cases involving merely alternative factual or evidential pathways to establishing the one essential ingredient. As the jury must be unanimous as to their conclusion that an essential ingredient of an offence has been established, but need not be unanimous as to the factual or evidentiary pathway by which they reach that conclusion, an extended unanimity direction will be required in the former situation, but not in the latter.[7] I offered the following summary of the considerations that might be relevant in drawing this distinction:[8]
In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way in which the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree.
[6] R v Ribbon (2019) 134 SASR 328.
[7] R v Ribbon (2019) 134 SASR 328 at [260] (Doyle J, Parker J agreeing).
[8] R v Ribbon (2019) 134 SASR 328 at [261] (Doyle J, Parker J agreeing).
Applying that approach to the present case, the issue is whether the individual entries in the time books relied upon as establishing the falsity of the time books were essential ingredients of the charge, or merely factual or evidential pathways by which that falsity was to be established.
It is appropriate to start with the terms of s 140 of the CLCA, and the articulation of the elements of the offence created by that section set out earlier in these reasons. Importantly, the first element of that offence required the production of a document. As explained, the prosecution alleged and ran a case on the basis that the document was the time books, and not any particular entry, page or section of the time books.
The second element of that offence required establishing the falsity of that document. The prosecution case was that the time books were false by reference to the overall misleading impression created by those time books as to the hours worked by RS. Importantly, the second element required a focus upon the falsity of the document (the time books), and not the falsity of any particular entry, page or section of those books.
In my view, this analysis tends to demonstrate that the falsity of particular entries within the time books was not an essential ingredient of the s 140 offence as the case was alleged and presented. Rather, establishing the falsity of particular entries was merely the means of establishing the essential ingredient; namely, the falsity of the time books.
I do not think that consideration of the relationship between the individual entries assists the analysis in the present case. While the individual entries were similar in nature, and many gave rise to similar issues, it may be accepted that the various groups of entries identified in exhibit P1 raised differing issues, with the evidence as to the falsity of each differing as to its nature and source. That said, it is fair to describe the prosecution case as being one which relied upon the cumulative effect of all of the impugned entries identified in exhibit P1. An extended unanimity direction is not usually appropriate in a case of that nature.
The present case is distinguishable from Magnus v R.[9] In that case, the accused was charged with 53 counts of obtaining financial advantage by deception. Each of the charges contained between three and six particulars, being different false representations which the accused was alleged to have made. Whilst the relevant offence required proof that the accused obtained the relevant financial advantage by “deception”, it was held that the words or conduct constituting the deception formed the actus reus of the offence. It followed that the jury needed to be agreed as to the words or conduct relied upon by the prosecution.[10] In other words, the particulars alleged in that case were alternative versions of the actus reus itself, rather than merely the facts or evidence through which the actus reus might be established.
[9] Magnus v R (2013) 41 VR 612.
[10] Magnus v R (2013) 41 VR 612 at [49] (Buchanan, Ashley and Redlich JJA).
Returning to the present case, I am not persuaded that an extended unanimity direction was required. It was necessary that the jury be unanimous as to the falsity of the time books, as this was an essential ingredient of the offence, as alleged and presented in the prosecution case. It was not necessary that the jury be unanimous as to the falsity of any particular entry, page or section of the time books, as the falsity of these was merely the evidentiary pathway by which the jury was to form its conclusion as to the relevant essential ingredient (namely, the falsity of the time books).
Grounds 4 & 5 – discreditable conduct and lies
I agree with Nicholson AJA’s reasons in relation to Grounds 4 and 5, but wish to make some additional observations.
Grounds 4 and 5 impugn the trial judge’s directions as to the evidence relating to three aspects of the appellant’s conduct:
(i)her conduct in creating a backdated employment agreement with RS;
(ii)her conduct in telling lies to Mrs May; and
(iii)her conduct in sending a letter of demand to Allianz.
The relevant evidence, and the circumstantial use sought to be made of each item of conduct, is described in the reasons of Nicholson AJA. In short, the evidence was led as circumstantial evidence probative of the appellant’s knowledge of the falsity of the time books. Importantly, the evidence was not led as probative of any consciousness of guilt on the part of the appellant, or as probative of any dishonest propensity on the part of the appellant.
The appellant contends that each of the above items of conduct was discreditable conduct, such that the evidence in support of each was discreditable conduct evidence for the purposes of s 34P of the Evidence Act 1929 (SA), and required directions in conformity with s 34R. The respondent concedes that item (i) was discreditable conduct, but does not make that concession in respect of items (ii) and (iii).
The Evidence Act does not define ‘discreditable conduct’, although the terms of s 34P(1) make it clear that it is not confined to conduct which constitutes a criminal offence. Speaking generally, and without intending to be definitive, discreditable conduct connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant. However, bearing in mind the context in which the term is used in s 34P, it connotes conduct of a level of seriousness or consequence that it might cause a jury (in the absence of instruction from the trial judge) to engage in some form of impermissible ‘bad person’ reasoning.
I agree with Nicholson AJA’s conclusion that (i) and (iii) are instances of discreditable conduct for the purposes of s 34P, and that that is so regardless of whether they might also be described as lies, or as involving lies.
In R v Webb,[11] Vanstone J proceeded on the basis that evidence of a lie by a defendant, charged with murder, as to the whereabouts of the deceased was evidence of discreditable conduct for the purposes of s 34P. However, I am not aware of any detailed consideration of the extent to which lies might constitute discreditable conduct.
[11] R v Webb [2013] SASC 162 at [4].
In my view, evidence of a lie by the defendant may constitute evidence of discreditable conduct. But I do not think all lies will be discreditable conduct. Whether a lie constitutes discreditable conduct will depend upon the circumstances of the particular case, having regard to the nature and seriousness of the lie, considered in the context of the issues in the case. A lie may be sufficiently inconsequential that, despite being potentially relevant to the defendant’s credit as a witness, it does not give rise to any realistic risk of any impermissible reasoning. In such a case, it does not seem to me that evidence of the lie would be evidence of discreditable conduct for the purposes of s 34P.
In circumstances where evidence of a lie is evidence of discreditable conduct, directions as to the permissible and impermissible use of that evidence must be given under s 34R. While Zoneff[12] or Edwards[13] style directions may in some cases suffice to satisfy the requirements of s 34R, in other cases additional direction may be required to ensure that this is so.
[12] R v Zoneff (2000) 200 CLR 234.
[13] R v Edwards (1993) 178 CLR 193.
For the reasons given by Nicholson AJA, I do not think that the lies allegedly told by the appellant to Mrs May were of a nature or seriousness to warrant their characterisation as evidence of discreditable conduct. Thus, whilst directions in conformity with s 34R were required for (i) and (iii), they were not required for (ii).
Turning to the directions that were given, the appellant contends that s 34R required directions in respect of (i) and (iii) to the effect that the jury must not reason that the defendant is more likely to have committed the offence because he engaged in discreditable conduct (being the impermissible use set out in s 34P(1), and often referred to as ‘bad person’ reasoning). Whilst acknowledging that the trial judge’s directions in respect of each item of conduct warned the jury against reasoning of this type, she complains that they did so in terms that only warned against more absolute, or ‘primitive’, bad person reasoning;[14] that is, warning only against reasoning from satisfaction that the appellant engaged in the discreditable conduct to a conclusion that ‘she is a dishonest person or the type of person who would commit this sort of offence and therefore she must be guilty’ (emphasis added).
[14] As it was described in Collins v The Queen [2020] SASCFC 96 at [148] (Blue J, Peek and Stanley JJ agreeing).
It may be accepted that the directions given by the trial judge in respect of (i) and (iii) did not reflect the precise terms of the impermissible use proscribed by s 34P(1). They warned against reasoning from the discreditable conduct to a conclusion that the appellant did commit the offence, as opposed to reasoning that the appellant was more likely to have committed the offence. Similar departures from the terms of the impermissible use in s 34P(1) resulted in findings of error in both Collins v The Queen[15] and R v Forrest.[16]
[15] Collins v The Queen [2020] SASCFC 96 at [148] (Blue J, Peek and Stanley JJ agreeing).
[16] R v Forrest (2016) 125 SASR 319 at [44]-[47] (Kourakis CJ, Kelly and Lovell JJ agreeing).
While directions that reflect the wording of the impermissible use identified in s 34P(1) will often be required, that will not always be so.[17] In some cases, a sufficiently clear articulation of the permissible use, accompanied by a description of the impermissible use in terms similar to s 34P(1), may suffice to negate any risk of the jury engaging in reasoning of the type proscribed by s 34P(1). The respondent contends that this was such a case. In particular, the respondent argues that the difference between the impermissible use described by the judge, and the impermissible use proscribed by s 34P(1), was so limited (if not imperceptible) that there was no risk of the jury having engaged in the latter. In support of this argument, the respondent noted that trial counsel did not raise any issue with the directions that were given.
[17] Perara-Cathcart v The Queen (2017) 91 ALJR 411 at [52] (Kiefel, Bell and Keane JJ); R v Tran [2017] SASCFC 99 at [164] (Doyle J).
I do not accept the respondent’s contention. In my view, there was a risk in the present case that the jury might have considered that whilst they were not to reason that the discreditable conduct (if established) necessarily meant that the appellant was guilty of the offence charged, they were nevertheless permitted to reason that it made that conclusion more likely. In a case where the discreditable conduct was dishonest conduct, and the offence was one of dishonesty, I consider that that risk required a direction that adhered to the terms of s 34P(1). It follows that the trial judge erred in failing to give the directions in relation to (i) and (iii) as required by s 34R of the Evidence Act.
As to the trial judge’s directions in relation to the evidence of lies by the appellant to Mrs May, for the reasons given, I do not think that it was necessary to give directions that conformed with the requirements of s 34R. However, there was no challenge to the trial judge’s decision to give a Zoneff style direction. And, for the reasons given by Nicholson AJA, that direction suffered from a similar vice as the directions given in relation to (i) and (iii). In essence, the direction as to the impermissible use was given in terms that were too absolute and hence did not encapsulate the full breadth of the impermissible use. In a case where the offence was one of dishonesty, this inadequacy in the directions as to (ii) was productive of a miscarriage of justice.
The proviso
For the reasons set out, I consider that Grounds 4 and 5 have been made out. However, for the reasons given by Nicholson AJA, I consider that this is an appropriate case in which to apply the proviso.
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.
Section 140 of the Criminal Law Consolidation Act 1935 (SA) is in these terms.
(1)For the purposes of this section, a document is false if the document gives a misleading impression about—
(a) the nature, validity or effect of the document; or
(b) any fact (such as, for example, the identity, capacity or official position of an apparent signatory to the document) on which its validity or effect may be dependent; or
(c) the existence or terms of a transaction to which the document appears to relate.
(2)A document that is a true copy of a document that is false under the criteria prescribed by subsection (1) is also false.
(3)A person engages in conduct to which this section applies if the person—
(a) creates a document that is false; or
(b) falsifies a document; or
(c) has possession of a document knowing it to be false; or
(d) produces, publishes or uses a document knowing it to be false; or
(e) destroys, conceals or suppresses a document.
(4)A person is guilty of an offence if the person dishonestly engages in conduct to which this section applies intending—
(a) one of the following:
(i)to deceive another, or people generally, or to facilitate deception of another, or people generally, by someone else;
(ii)to exploit the ignorance of another, or the ignorance of people generally, about the true state of affairs;
(iii)to manipulate a machine or to facilitate manipulation of a machine by someone else; and
(b) by that means—
(i)to benefit him/herself or another; or
(ii)to cause a detriment to another.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 15 years.
(5)A person cannot be convicted of an offence against subsection (4) on the basis that the person has concealed or suppressed a document unless it is established that—
(a) the person has taken some positive step to conceal or suppress the document; or
(b) the person was under a duty to reveal the existence of the document and failed to comply with that duty; or
(c) the person, knowing of the existence of the document, has responded dishonestly to inquiries directed at finding out whether the document, or a document of the relevant kind, exists.
(6)A person who has, in his or her possession, without lawful excuse, any article for creating a false document or for falsifying a document is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
When summing up before the jury, the trial Judge provided the following aide memoire which accurately sets out the elements of the offence in section 140.
Aide Memoire
Dishonest dealings with documents
1.The accused used or produced a document.
2. The document was false.
3. At the time she used or produced the document, the accused knew it was false.
4. At the time she used or produced the false document which she knew was false, the accused intended to deceive another.
A deception means a misrepresentation by words or conduct. It includes a misrepresentation about a present or past state of affairs.
5.At the time she used or produced the false document, the accused intended to benefit herself. Benefit means a financial advantage.
6. The accused’s conduct in using or producing the false document was dishonest.
A person’s conduct is dishonest if the person acts dishonestly according to the standards of ordinary people, and she knows that she is so acting.
The question of whether the accused’s conduct was dishonest according to those standards is a question of fact to be decided by you according to you [sic] own knowledge and experience.
Each of the two time books comprised a series of pages on each of which was one or more pre-printed and partly filled in boxes which allowed for the recording of hours worked on identified days in a particular week. Whoever filled out the boxes recorded by hand the date of each day during which work allegedly was performed, purported commencement and finish times for the work and the total hours allegedly worked for that day. Someone has recorded a signature or initials against each daily entry under a pre-printed heading “Signature of Employee”. At the bottom of each box is a pre-printed place for another “signature”. The form does not make clear who is to sign here. However, it appears to be an opportunity for someone to confirm the whole of the information recorded in the box for each particular week. In each case, a signature or initials has been provided. It is not entirely clear whether or not this has been done by the same person who signed/initialled the individual entries, although, they share similarities. None of the signatures/initials look anything like the signature of the appellant, which can be seen on other documents, for example, exhibit P28 (discussed later). The signature/initials in the boxes do look similar to the signature/initials purportedly of RS on other documents, such as exhibit P28. However, there is no direct evidence that any of the signatures/initials were affixed by RS or by the appellant or by someone else.
The prosecution adduced a substantial body of oral and documentary evidence from which, if accepted, it was open for the jury to infer that RS could not have or would not have worked on various days or to the extent recorded on various days, as stated in the time books. At no time did the prosecution expressly particularise its case, that is, to the extent of identifying all of those entries in the time books it relied on as being false. The prosecution pressed its case on the basis that the time books were a “gross exaggeration” of the hours in fact worked by RS and that such a finding would be sufficient for a conclusion that the time books, as a whole, constituted a “document” that was false.
However, the prosecution did produce for the jury, as an aide memoire, a very detailed, colour coded 14 page chart.[24] The chart contains some 611 line entries each devoted to a specific date within the period 18 February 2015 to 9 October 2016. It purports to summarise aspects of the body of evidence referred to above that directly relate to each particular line entry. To the extent that the chart were to be accepted by the jury as an accurate statement or summary of evidence accepted by the jury, the jury had before it a de facto particularisation of entries the prosecution contended were inaccurate. In this respect, the trial Judge drew to the jury’s attention[25] that: “there has not been any suggestion in this case from the prosecution or defence that the chart does not accurately reflect the evidence”.
[24] Exhibit P1.
[25] Summing up at p 9, appeal book (AB) at p 43.
At trial, the defence focussed mainly, but not entirely, on the subjective elements of the offence, that is, elements 3 to 6 and, in particular, the contention that at the time the appellant used or produced the “document”, she knew it was false. Falsity, per se, was not much, if at all, in dispute. However, during the appeal, two overarching complaints, not specifically identified in the grounds of appeal were agitated by the appellant’s counsel, who was not counsel at the trial: the precise nature of the “document” the subject of the charge; and whether or not or the extent to which falsity of that document had been conceded at trial. I should address these before considering the grounds of appeal.
The document(s)
The appellant complained that, whilst the actus reus (and element 1) of the offence is that the appellant “used or produced a document”, the prosecution never adequately “defined” what the document was. This contention, if made out, would have obvious relevance to the consideration of elements 2 to 6. However, the contention has not been made out.
Section 140 is within Division 6 of Part 5 (offences of dishonesty) of the Criminal Law Consolidation Act 1935. Section 130 in Division 1 is an interpretation section applicable to all of Part 5. Under section 130 “document includes any record of information whether in documentary, magnetic, electronic or other form”. Subsection 140(2) provides, for the purposes of section 140: “A document that is a true copy of a document that is false under the criteria prescribed by subsection (1) is also false”.
It is common ground that the original time book for 2015,[26] the original time book for 2016,[27] the copies thereof emailed to Radbone and Associates,[28] each considered as a whole (a book consisting of a number of pages) and each individual page thereof (original or copy), depending on context and purpose, are all capable of constituting a document within section 140. However, whilst Radbone and Associates received by email copies of the individual pages of the two time books, the appellant’s intention can only have been to transmit and her lawyer’s understanding on receipt can only have been to receive, a composite copy of each time book.
[26] Exhibit P10A.
[27] Exhibit P11A.
[28] Exhibits P10, P11.
The appellant contends that the Judge’s directions at page 4 of her Honour’s summing up[29] “alone demonstrate the confusion”. Paragraphs [40] and [41] of the appellant’s written submissions put the argument at its highest.
[29] AB38.
The trial judge’s directions at AB38 alone demonstrate the confusion (directions in italic, commentary in normal type):
40.1. The first element that the prosecution must prove is that accused [sic] used or produced a document. (singular);
40.2. In this case, the documents (plural) are the photographed pages of the timebooks of [RS] for 2015 and 2016 (in other words, a great many separate documents); they are the subject of the charge;
40.3. That then brings me to the second element of the offence. The prosecution must prove that the documents (plural, presumably the photographed pages referred to earlier) were false;
40.4. The prosecution case is that they (plural, the photographed pages) give a misleading impression about the number of hours that [RS] worked at the bookstore in 2015 and 2016;
40.5. The prosecution relies upon a number of different pieces of evidence to prove that the timebooks (the two of them generally, or specific photographed pages?) were false.
It was left entirely unclear as to which “document(s)” the jury was being asked, by the prosecution or during the summing up, to find to be false. Indeed it was left unclear whether the entirety of the timebooks that were emailed to the solicitor were considered to be one document (the inference left by the Information as laid), or whether the two deconstructed timebooks that were emailed comprised two complete documents, or whether each photograph was to be a separate document.
It is correct that there is inconsistency and a lack of precision in the terminology used and the use of the plural and the singular in the passages that have been identified. However, the full context needs to be considered.
From the outset, jury members were provided with a copy of the Information in which the particulars of the charged offence are recorded as follows.[30]
[The appellant] … dishonestly engaged in conduct by producing or using a document, namely time books, knowing the document …
(Emphasis added)
It is clear from the Information that the document, the subject of the charge, is a document being “time books”. It readily became apparent to the jury that only two time books were to be relied on, those for RS for 2015 and 2016. These two time books are a “record of information … in documentary … form”[31] and together comprise the one “document” referred to in the Information.
[30] AB13.
[31] Section 130 of the Criminal Law Consolidation Act 1953 (SA).
The prosecutor in his opening address,[32] told the jury that the appellant had been charged with “one count of dishonestly dealing with documents” (plural) in that she had provided “two employee time books to her solicitors knowing that the time books were false”. Thereafter in the introductory part of his address, the prosecutor later made repeated reference to the “time books”.[33] He later referred to the fact that the “time books in question” had been located by the police.[34] The prosecutor also uses the expression “time books” when outlining the elements of the offence, for example, “the first [sic] element is that the documents, namely the two time books, were false”.[35] It is accepted that some ambiguity may have arisen in the minds of jury members by the prosecutors reference to documents, plural. However, it was consistently made clear that the document or documents for the jury’s consideration were the two time books.
[32] T8.
[33] Seventeen occasions on T8-9.
[34] T14.
[35] T14 and see T16 more generally.
During his opening address, the prosecutor tendered the summary of evidence chart.[36] He explained to the jury how to read the chart. He explained that the author of the chart had “inserted … the shifts that the time books recorded [RS as] having worked”.
[36] Exhibit P1.
Throughout his final address, the prosecutor consistently drew the jury’s attention only to the “time books” as being the focal point of falsity, for example.[37]
The prosecution only needs to prove that the time books are false in any respect albeit the prosecution says the time books are a gross exaggeration of the hours worked, if hours were worked by [RS].
[37] T381.
Defence counsel in his final address, commenced with the central thrust of the defence.[38]
Ladies and gentlemen, [the appellant] did not know the time books were false …
Thereafter, counsel referred only to the “time books” as being the focus of the prosecution case as to falsity and the focus of the subjective elements 3 to 6, including the assertion that the appellant knew of their falsity.
[38] T404.
The Information, the evidence and counsels’ addresses form the context in which the Judge’s directions to the jury are to be understood. The imprecision of the language initially adopted in the summing up, as earlier set out, must be considered in that context. It can only reasonably be considered as embracing the time books as a whole.
Moments before making the impugned statements,[39] the Judge made clear the task before the jury.
[Y]ou are being asked to consider whether during the course of that civil litigation [the appellant] committed a criminal offence when she produced those timebooks to her solicitor on 14 October 2016.
The impugned statements relied on by the appellant in paragraphs 40.1 and 40.2 of her written submissions, earlier set out, were made by the Judge as part of her consideration of element 1 of the offence (used or produced a document). In this context, her Honour, after referring to other aspects of the evidence, concluded.[40]
Members of the jury, you might have little difficulty in finding this element of the offence proved. There is no dispute that the [appellant] used or produced those documents by emailing them to her solicitor on 14 October 2016.
Her Honour then proceeded to consider element 2 (objective falsity) and made the observations in the appellant’s paragraphs 40.3 to 40.5, set out earlier. In so doing, her Honour referred to the prosecution requirement to “prove that the time books were false”. Thereafter, on numerous occasions, her Honour referred only[41] to time books when discussing the various elements of the offence.
[39] Summing up p 3, AB37.
[40] Summing up p 4, AB38.
[41] Apart from two instances where her Honour referred to “photos of the time books” (p 12, AB46) and “photographs of the time books” (p 20, AB54). In each case the reference was in the context of actions taken by the appellant with respect to the photographs.
I have no doubt that all participants conducted the trial on the basis that, and the members of the jury clearly understood that, the subject of the charge and each of its elements was the copied versions of the two time books, exhibits P10 and P11.
Was falsity conceded at the trial?
The issue of the nature of any concession at trial made during the trial and that the appellant was willing to make on appeal concerning the falsity of the “document”, being the time books, was explored early in the address of the appellant’s counsel.
Counsel on appeal characterised the concession as being that the time books “in the broadest possible sense were false” in that “there were at least particular entries that represented that [RS] worked at particular times … that cannot have been right”.[42] According to counsel, this did give a misleading impression but only in that those entries were false. Nevertheless, “the documents met the statutory definition of a false document”.[43]
[42] Appeal transcript (TA) 4.
[43] TA3.
A concession of this limited nature left open the possibility that the time books also contained incorrect entries that understated hours worked on particular days which, when matched with the entries that overstated hours worked on other particular days, resulted in the time books not falsely overstating the total hours worked over the 2015 and 2016 years. The appellant’s counsel maintained that the concession below did not exclude this as a possibility.
In his closing address at trial, defence counsel commenced by submitting to the jury that the appellant did not know the time books were false.[44] This would appear to imply a concession in the more general sense that was not accepted by counsel on appeal. However, defence counsel then addressed four main areas of the evidence, the first, being:[45]
… the evidence that shows that the prosecution has not excluded the reasonable possibility that [RS] was working at [the bookstore] in 2015 and 2016 to the extent indicated in the time books.
On its face, this would appear to be contrary to even the more limited concession. Counsel went on to identify a number of particular days in the chart, exhibit P1, and offered various reasons why the evidence said to contradict the working hours recorded in the time books for those particular days did not go so far as contradicting the recorded hours beyond reasonable doubt. Counsel did not deal with all of the contended for inculpatory entries in this way, only selected entries. However, defence counsel also identified others that were conceded as being clearly false. Neither counsel at trial identified any entries in the time books that might be understood as understating hours worked by RS on particular days. Nevertheless, defence counsel’s submissions concerning examples of apparent overstatements that ought not be accepted by the jury as having been proved beyond reasonable doubt still can be seen as consistent with the more nuanced concession described by counsel on appeal.
[44] T404.
[45] T404.
Much later in his closing address,[46] defence counsel submitted the following.
So there is no dispute in this matter that shifts are recorded as being worked in the timebooks that could not have been worked by [RS] at those times because he was in Canberra, or Woomera, or in relationships counselling. … Let me remind you again those elements are, did Allison Sadler know the timebooks were false? Did she intend to deceive Allianz or another, and was she acting dishonestly?
Counsel further submitted in his concluding remarks the following.[47]
I trust that when you look at the evidence as a whole and consider if those three key element [sic] - her knowledge that the timebooks were false, her intention to deceive and her dishonesty - I would submit to you that you cannot be satisfied beyond a reasonable doubt that those elements are made out and, therefore, you should return a verdict of not guilty.
[46] T426.
[47] T432.
The Judge approached the summing up on the basis that element 2 (falsity of the time books) had not been conceded.[48]
[The defence] submitted that the prosecution has not excluded the reasonable possibility that [RS] was working at [the bookshop] in 2015 and 2016 as recorded in the timebooks. That is the prosecution has not proved beyond reasonable doubt that they were, in fact, false.
In this observation, the Judge did not accurately set out the defence submission. The defence did not submit in accordance with the first sentence or the second sentence.
[48] Summing up p 18-19, AB52-53.
When the jury retired they would have been justified if feeling a little confused as to the defence position with respect to element 2 (objective falsity). However, the nature of the defence concession was that whilst not all entries in exhibit P1 relied on by the prosecution had been proved false beyond reasonable doubt, the time books as a whole presented a false account of hours worked by RS. I reject the more nuanced position put by counsel on appeal.
Appeal ground 2
Appeal ground 2 is in these terms.
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.
Particulars
2.1.The prosecution asserted that only one entry in the timebook needed to be false, however stated that their case was that the timebooks were a “gross exaggeration” of the time worked.
2.2. The prosecution did not identify particular entries which were false, and those which may not have been.
2.3. The court cannot know which entries the jury found to be false, or which entries the jury found the defendant knew were false.
The background sufficient to an understanding of appeal ground 1 and some of the appellant’s concerns have already been canvassed. In essence, the appellant’s complaint here is that, given the manner in which the prosecution case was left to the jury, the verdict of the jury is uncertain. The appellant contends that either better particulars or an “extended unanimity direction” was required.
Uncertain for want of particularity
As the earlier discussion demonstrates, the prosecution case, as pleaded, presented and summed up by the Judge, was that the (two) time books constituted the document relied upon which document was false in that it (the two time books) presented a “gross exaggeration” of the hours in fact worked by RS in 2015 and 2016. The modifier, gross, strictly is otiose in this context, other than to emphasise the prosecution’s perception of the strength of its case. The prosecution only had to demonstrate an exaggeration in the overall hours of work as represented by the time books to establish that the time books gave a “misleading impression about … the effect of the document [time books],[49] and thus falsity. It could have done this by establishing one overstated entry provided this was not matched by an understated entry or entries.
[49] Subsection 140(1)(a).
According to the prosecution case, the appellant knew that the time books were false in this respect (exaggerated) at the relevant time for the purpose of elements 3 to 6. The nature of the prosecution case, as presented, complies with the definitions pertinent to and structure of section 140 of the Criminal Law Consolidation Act 1935.
Given the broad definition of “document” in section 130, the prosecution could have pleaded and relied on one or any number of specific pages (or perhaps entries) in the time books, as individual documents each supporting a separate count of the pleaded offence, without infringing the rules against duplicity. If so, each count would have to have been particularised by reference to that separate document and the prosecution would have been required to prove its case with respect to each particularised document the subject of a separate charge.
However, the prosecution did not choose to proceed this way. It was entitled to proceed as it did, that is, to identify (particularise) the two time books as falling within the definition of “document” and as being the subject of the one count. As such, the prosecution only had to demonstrate that this document, as a single entity, was false such as, by exaggerating the number of hours in fact worked by RS in 2015 and 2016. The prosecution was not obliged to plead or otherwise expressly particularise the specific entries or pages it relied on to achieve this outcome. In any event, the prosecution case in this respect was made plain through the chart summarising the evidence. To the extent that appeal ground 2 posits that the verdict is uncertain for want of sufficient particularisation, the ground is not made out.
Verdict uncertain for want of an extended unanimity direction[50]
[50] In this jurisdiction this notion will include unanimity of the majority where a majority verdict is available, see s 57 of the Juries Act 1927 (SA).
The more difficult issue raised by appeal ground 2, and given the way the prosecution pressed its case (one document comprised of the 2015 and 2016 time books) is whether or not an extended unanimity direction should have been given to the jury by the Judge.
The parties’ contentions on appeal in brief
In simple terms, the concern raised by the appellant is that, as the case was left to the jury and given the large number of entries challenged on the face of the evidentiary chart, it is reasonably possible, even likely, that various members of the jury adopted different pathways to the conclusion that the time books document exaggerated the hours worked by RS. Some members may have been satisfied beyond reasonable doubt that only certain pages caused the exaggeration with other members not being so satisfied with respect to those pages but being satisfied beyond reasonable doubt that other pages caused the exaggeration.
The defence contends that in such a situation the verdict would be uncertain; the court would not know the basis for the verdict. Furthermore and perhaps more importantly, an appeal court could not be satisfied that the jury had reached a unanimous or, where appropriate a majority,[51] decision as to guilt beyond reasonable doubt. The appellant acknowledged that it is to be accepted that a jury properly instructed as to a question of law will follow that instruction. Thus, the only way to have avoided uncertainty in this second sense was for the Judge to have given an extended unanimity direction.
[51] Juries Act 1927 (SA), section 57.
In essence, the appellant posits that agreement as to which of the individual pages were false is essential to agreement and satisfaction beyond reasonable doubt that the document in issue, the 2015 and 2016 time books, was false. Further, such unanimity applied with respect to proof of the appellant’s knowledge, element 3. It would follow from the last proposition that notwithstanding any defence concession or finding of objective falsity at trial, an extended unanimity direction as to the nature of that falsity still would be required with respect to the elements that required proof of the appellant’s knowledge of falsity. At all times, knowledge was squarely in issue.
The prosecution[52] relies on the fact that only one offence was charged and that:
[I]n the context of the evidence, the one act alleged that was said to make out the charge was the appellant emailing the document to her solicitors … .
As directed by the Judge, the document was relevantly false if it gave a misleading impression about the nature, validity or effect of the document. Individual entries may have given a misleading impression of hours worked on a particular day but it was the misleading impression conveyed by the (whole) document, itself, as to total hours worked that was relied on by the prosecution and as to which the jury had to decide. The fact that the jury might have disagreed as to the extent to which the document was misleading does not render the verdict uncertain.
Consideration of whether an extended unanimity direction was required
[52] Prosecution written submissions dated 15 December 2022 at [11]-[14].
With respect, the prosecution position does not entirely come to grips with the principles underlying why and the circumstances in which an extended unanimity direction might be required.
The High Court has considered the need for and role of an extended unanimity direction in a number of recent decisions.[53] However, these discussions of general principle occurred in the context of offences quite removed from the present. Of more direct assistance are the analyses offered by the Victorian Court of Appeal in R v Walsh[54] and Magnus v The Queen[55] and by Doyle J in Ribbon v The Queen.[56]
[53] For example, Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196, KMC v Director of Public Prosecutions (SA) [2020] HCA 6; (2020) 267 CLR 480, DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 and Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425.
[54] [2002] VSCA 98; (2002) 131 A Crim R 299.
[55] [2013] VSCA 163; (2013) 41 VR 612.
[56] [2019] SASCFC 130; (2019) 134 SASR 328.
In Walsh,[57] Phillips and Buchanan JJA (with whose reasons Ormiston JA agreed) explained the position this way.
To sum up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on “unanimity” about one or other or more of those bases, at least if they do not “involve materially different issues or consequences”. (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend “upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.
(Footnote omitted) (Emphasis added)
This dictum was applied by Buchanan, Ashley and Redlich JJA in Magnus[58] which concerned multiple counts of dishonesty offending, each of which had multiple particulars, any one of which would make out the count.
In our opinion, three propositions may be stated. First, there is authority of this Court which specifically addresses the offence now under consideration, and which holds that the jury must be unanimous in finding that a particular representation was operative. Second, English authority supports such a conclusion. Third, the touchstone for determining whether or not unanimity is required in any particular situation was stated in a passage in Walsh which has commanded approval in this and other States. Considering this offence by reference to that touchstone confirms that unanimity of the kind under consideration was required.
[57] R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 at [57].
[58] Magnus v The Queen [2013] VSCA 163; (2013) 41 VR 612 at [29].
In Ribbon, Doyle J (with whose reasons Parker J agreed) after reviewing Lane,[59] Walsh[60] and the decision in Fermanis v Western Australia,[61] the latter two cases having been cited with approval in Lane, explained the position this way.[62]
In my view, the two categories of case referred to by Phillips and Buchanan JJA in the passage from their reasons to which I have referred raise quite different considerations. I consider that the present case falls within the second category of case identified by their Honours; that is, where one offence is charged but the prosecution relies upon more than one discrete act as independently capable of proving an essential ingredient of the charged offence.
In determining whether it is necessary to give an extended unanimity direction in that second type of case, a distinction may be drawn between cases in which the discrete acts are relied upon as independently capable of proving an essential ingredient of the crime charged, and cases in which the discrete acts are relied upon merely as facts that might be found in considering the evidence led in support of an essential ingredient. As the jury must be unanimous as to their conclusion that an essential ingredient of an offence has been established, but need not be unanimous as to the evidentiary route or pathway by which they reach that conclusion, an extended unanimity direction will be required in the former situation, but not in the latter situation.
In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree.
(Emphasis added)
[59] Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196.
[60] R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299.
[61] [2007] WASCA 84; (2007) 33 WAR 434.
[62] Ribbon v The Queen [2019] SASCFC 130; (2019) 134 SASR 328 at [259]-[261].
Here, the second element to be proved (and a component of element 3 and one or more other elements) is that the time books for 2015 and 2016 were false in that, on the prosecution case, they exaggerated the total number of hours in fact worked by RS. As a means of proving this, the prosecution directed the jury’s attention to a number of entries, each of which was alleged to overstate hours worked on particular days.[63]
[63] Exhibit P1.
The evidence, as summarised in the chart, offered the jury various evidentiary pathways, any of one of which, if accepted, would permit a finding beyond reasonable doubt that the time books exaggerated the hours and were false, that is, various evidentiary pathways independently capable of establishing the second element or an essential component of other elements of the offence. Whilst the various entries in the time books allegedly comprised repeated conduct by the author of essentially the same nature, that conduct is not to be seen as a continuous course of conduct, the cumulative effect of which is relied on.
The evidence, as summarised in the chart, did more than provide different evidentiary pathways. There is no evidence of any understatement of hours worked by RS. Neither RS nor the appellant gave evidence. The evidence does not canvass hours or times when he might have been working which were not recorded, only the recorded times or hours where on the Crown case, he was not working. To have regard to under recording as a possibility, could only be a matter of impermissible speculation.
The prosecution was entitled to point to or have the jury locate any one of a number of false entries in order to establish falsity of the time books. However, this brought with it the risk that different jurors would fix upon different entries. In practical terms, once a particular entry were to be seized upon, the element of falsity would be established. Any false entry, if accepted, established the element of falsity (element 2) and an essential component of later elements. In this sense, any articulation by the jury that the time books were exaggerated and thereby false was otiose. That finding had already been made and element 2 satisfied at the earlier stage of identifying one or more overstated time book entries.
A jury must be agreed (unanimously or by majority according to the circumstances) upon any conclusion that an essential ingredient of an offence has been established. By pleading and prosecuting its case in the more general sense, earlier described, the prosecution attracted the need for an extended unanimity direction. Without that, the Court on appeal cannot be satisfied that the members of the jury were agreed as to an essential element or elements. Some may have found the element of falsity established one way but not in any other way and others may have found it established in a different way but not in any other way.
Conclusion – appeal ground 2
Appeal ground 2 has been made out and, subject to any application of the proviso, the appeal should be allowed and the conviction set aside. I will return to the possible application of the proviso later in these reasons.
I add here that I do not accept the appellant’s alternative contention, in support of the need for a unanimity direction, that the verdict is uncertain because the court cannot know the factual basis of the jury’s verdict. This is commonplace. Indeed, a sentencing court or an appeal court often will not know what evidence was accepted and relied on by a jury and its path of reasoning. Often, a sentencing Judge will have to sentence on the basis of the Judge’s factual findings provided they are consistent with the jury verdict. Even if there had been an extended unanimity direction, the court would be no better placed in this respect. The purpose of such a direction is to ensure that the jury reaches agreement as to the elements of the offence, not to identify the evidentiary basis adopted.
Appeal grounds 4 and 5
It is convenient to consider amended appeal grounds 4 and 5 together. They are in these terms.
4. There was a miscarriage of justice occasioned by the trial judge’s directions on discreditable conduct.
Particulars
4.1. The directions on discreditable conduct (Appeal Book page 46, the third to last paragraph, page 48, the third to last paragraph, and page 49, the fourth to last paragraph) amount to directions that the jury must not reason that because the appellant engaged in discreditable conduct, it inevitably follows that she committed the offending.
4.2. Those directions leave open and even encourage the “impermissible use” proscribed by s 34P(1) of the Evidence Act 1929 (SA), that the discreditable conduct makes it more likely that the appellant committed the offence.
5. There was a miscarriage of justice occasioned by the inadequacy of the trial judge’s directions on lies.
Particulars
5.1. In relation to the evidence of the witness Mrs May, it was necessary for a Zoneff direction or similar direction to be given. No such direction was given (Appeal Book page 48).
5.2. In relation to the evidence of the appellant sending a letter of demand to Allianz demanding the return of the timebooks, the direction was inadequate (Appeal Book page 49, the third to last paragraph).
These grounds of appeal, complaining about the adequacy of the Judge’s directions, focus on three aspects of the evidence adduced by the prosecution, each of which, the appellant contends, amounted to discreditable conduct within section 34P of the Evidence Act 1929 (SA) and also allegedly contained or could be characterised as a lie by the appellant.
The alleged false agreement
Exhibit P28 is two documents, both dated 15 March 2015, seized by the police from the bookshop on 24 January 2018. They purport to be agreements signed by both the appellant and RS. The two document were in the following, identical, terms.
15th March 2015
I, [the appellant], acknowledge that I agree to pay [RS] to get him to work for me and understand that I am therefore obliged to pay him award wages and possibly interest thereon by law
[Signature]
Allison Sadler date 15/3/2015 [handwritten]
I, [RS] acknowledge this above as the agreement
[RS] date 15/3/2015 [handwritten]
[Signature]
The only subtle differences are: the two purported signatures of the appellant differ slightly as do those of RS,[64] the handwritten dates (15/3/2015) adjacent to the appellant’s purported signatures are in slightly different locations and there is a slight difference in the formation of the dates, 15/3/2015, adjacent to the purported signatures of RS. I do not understand anything to turn on these differences.[65]
[64] But rarely, if ever, will a person replicate their signature in precisely identical form, each time.
[65] Whilst there is no evidence to this effect, the two documents may simply have been two signed originals of the one agreement.
The prosecution adduced evidence in support of the contention that the document had been backdated by the appellant, when creating and signing it at a later time, probably in October 2016. The prosecution contended that the appellant later created this document as evidence in support of the alleged arrangement with RS that had resulted in his working the hours recorded in the time books.[66] The prosecution relied on such a finding, if arrived at by the jury, in support of an inference that the appellant, at the time she produced the time books to her solicitor in October 2016 (four days before she provided the March 2015 document) had been aware of their falsity and had dishonestly manufactured evidence in support of their accuracy.
[66] T385-386.
The appellant contends that the document and any evidence probative of the back dating of the document, as relied on by the prosecution, is to be characterised in two ways: as alleging discreditable conduct within section 34P of the Evidence Act 1929; but also as alleging the telling of a lie.
The appellant does not challenge the admissibility of this evidence for either purpose[67] but does contend that, as to the former (discreditable conduct within section 34P) the Judge’s directions did not comply with the requirements of section 34R and, as to the latter, the Judge did not give a satisfactory “lies direction”.
[67] It was not objected to and the Judge was not called upon to rule in accordance with subsections 34P(1) or 34P(2) at trial.
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:
In my view, the allegedly backdated document, exhibit P28, can be characterised in both ways, although the prosecution did not seek to rely on it as a lie, per se, for any purpose additional to that set out earlier.
Before proceeding further to take up the impugned Judge’s directions and to address the appellant’s criticisms, I will digress a little to consider three ways in which a lie by an accused might be of probative value in a prosecution case.[69]
[69] There may, in appropriate circumstances, be others.
In the 13 July 2015 statement[119] provided to her solicitor, the appellant instructed that RS:
… has most likely done about 180 hours helping me shift boxes so far … I have recorded the time on paper and that is how I am able to calculate that it is 180 hours. These are papers I am able to grab if required in the future.
The prosecution contended (not challenged) that the copy time books for RS record some 402 hours as at 13 July 2015. There is nothing in the examination-in-chief or cross-examination of Mr Radbone that assists in explaining this discrepancy.
(vii) The Mrs May evidence
[119] Exhibit P3 page 2.
The prosecution relies on the evidence of Mrs May as circumstantial evidence bearing on the appellant’s state of mind (knowledge) during early October 2016. This has been discussed earlier.
(viii) Ross Tippett evidence – RS did not work April to June 2016
Ross Tippett, a physiotherapist, gave evidence. He was engaged by the insurer of the defendant in the civil claim to provide a report of an independent medical assessment of the appellant. He met with the appellant at the bookshop on 27 June 2016. The appellant told Mr Tippett that she lived in a separate outbuilding behind the main premises.[120] This admission against interest gives scope for an inference that the appellant had considerably more opportunity, than if she had lived away from the bookshop premises, to take note of the presence or absence of RS at the bookshop, from time to time, being relevant to her capacity to assess the accuracy of the information in the copy time books.
[120] Agreed fact 3 in exhibit P26 confirms that in 2015 and 2016 the appellant lived at the bookshop premises.
Mr Tippett said that the appellant provided him with the following information which he recorded in a report prepared from contemporaneously taken notes.[121]
[121] T289, 292-293.
Q.In the next paragraph it says ‘I understand that she had a partner at the time of the subject accident but that this relationship finished’.
A.Yes.
Q.The subject accident was the bike accident in 2012.
A.Yes.
Q.Did she say to you, this next part ‘she commenced a new relationship in January 2015 but the relationship ended in approximately April 2016’.
A.Yes.
Q.You’re sure that she said to you that that relationship ended in April 2016.
A.Yes.
Q.Then did she say to you ‘She had reconciled with her most recent partner, however, she continues to live alone’.
A.Yes.
.. . .
Q.She said to you ‘Her partner at the time of the accident started to assist her during 2013, she estimated for up to 10 hours per week but that relationship finished’. Do you have a note one way or the other of that partner’s payment.
A.No.
Q.Do you know if you were told that partner’s name.
A.I can’t recall, no.
Q.I’m interested in this next bit ‘Her partner whom she met in January 2015’; do you see that.
A.Yes.
Q.She told you did she ‘He assisted her an average of 20 hours per week over the weekends and after his own work during the week up until April 2016 when the relationship deteriorated’.
A.Yes.
Q.So you’re there in June 2016.
A.Yes.
Q.And she’s telling you that that person has not done any work since April 2016 in the store; is that right.
A.Yes.
Q.Then in June 2016, at the date of your assessment, she’s telling you that she had not requested any further assistance from him.
A.No.
Q.She did say that or she didn’t say that.
A.Ms Sadler told me that they had reconciled but she hadn’t asked him to help after their reconciliation.
(Emphasis added)
In cross-examination, the appellant’s trial counsel raised various issues bearing on the reliability of the notes used to refresh Mr Tippett’s memory and he conceded that his report might contain minor mistakes. As far as the relationship starting to deteriorate in April 2016 he did not know when it came to an end or whether it was an “on again and off again” relationship.
The admissions by the appellant as to the timeframes during which RS did not assist are against interest, on the prosecution case, because they appear inconsistent with the timeframes recorded in the time books. The time books show RS working 41 shifts between April and end of June 2016. According to the prosecution, if the appellant had correctly stated that RS did not work between April and June 2016, she would not have forgotten that four months later. As the prosecution put it, four months later, in October 2016, the appellant would only need to “glance at the time books to know they were false”. She had that opportunity when she opened every page to copy and send them.
Defence counsel criticised the reliability of Mr Tippett’s evidence concerning his “passing” conversations with the appellant about her relationship with RS and its timeframes. He referred to a number of aspects of the evidence that lent support to this contention of unreliability.
(ix) Nicole Uys did not see RS working
The evidence of Nicole Uys was to the effect that while she saw RS at the bookstore, she never saw him working. She saw him walking through the store and walking the appellant’s dogs. Ms Uys worked part-time during the entire period RS is alleged to have worked and never saw any time books for RS. Before her shifts, the shop always looked to be in the same state as it had been in the night before; the implication being that if RS had been working, shifting boxes and sorting books, the results were not evident to Ms Uys. The chart of evidence, exhibit P1, reveals shifts when both were working but this was not Ms Uys’ observation.
Of course, Ms Uys only worked part‑time and there were times when RS could have worked without her being aware one way or the other. Ms Uys’ evidence concerning RS was tested at some length during cross‑examination. She said she was unable to recall various matters she had stated in an earlier statement to the police that were consistent, to an extent, with the defence case.
(x) Trevor Millhouse did not see RS working
Trevor Millhouse was a friend of the appellant who visited her bookshop regularly, up to once a week, during the relevant period. He saw a handyman on occasions doing repair jobs, but he never saw anyone sorting or shifting books. He said the appearance of the bookstore never changed; it was “cluttered but organised”. Mr Millhouse was cross-examined at length about his opportunity to have seen RS in the bookshop and to have seen changes in the organisation of the books in the bookshop.
(xi) Photographs of the bookshop
According to the prosecution, relevant to the prosecution contention that RS spent little, if any, time tidying and organising books and organising and shifting boxes of books, were two sets of photographs of the bookshop. Ross Tippett took photographs in June 2016[122] and the police took photographs in January 2018.[123] The prosecution contended that a comparison of the two sets of photographs demonstrates that, if RS had worked the few hundred hours during July to mid‑October 2016, as recorded in the time books, there was little, if anything, to show for it. Comparing photographs is a jury question but one with respect to which an appellate court is in no worse position to undertake. Having said that, the nature of the photographs in the two collections, in particular the disparate nature of the subject matter, is such as to render this exercise fruitless. At both times, various areas of the bookshop appear as a cluttered jumble. But there is no way of discerning whether or not there have been any changes to the cluttered jumble in various areas of the bookshop.
(xii) Sharmarie Flavel’s evidence
[122] Exhibit P24.
[123] Exhibit P29.
Sharmarie Flavel consulted with patients as a naturopath from one of the rooms in the bookshop on Tuesdays during 2015 and 2016. Both the appellant and RS were clients on a number of occasions. According to Ms Flavel, unless RS had a booking with her, she usually did not see him at the bookshop on Tuesdays. The prosecution contends that this is inconsistent with the evidence chart[124] which records RS as working on dozens of Tuesdays, being days, according to Ms Flavel’s records, that he did not have an appointment with her. Ms Flavel did not see RS doing any work, other than changing a lightbulb.
[124] Exhibit P1.
The cross-examination elicited circumstances and opportunities, including but not limited to the periods when Ms Flavel was consulting in the room with the door closed; for RS to have worked with Ms Flavel being in no position to comment.
(xiii) Feras Said in the fish and chip shop
Feras Said owned and worked in the fish and chip shop next door to the bookshop. He was called in the defence case and gave evidence of regularly seeing RS at the bookshop. He said that he saw RS, during weekdays, working in the back shed “fixing books up, putting them in boxes and stacking them up on shelves in the shed”. He said that during 2016 he would see RS there three or four nights a week. Sometimes RS would come to the fish and chip shop and ask for boxes. Sometimes, Mr Said saw RS with the appellant, unloading books from a car. He said that RS worked at the bookshop for seven to 10 months.
When cross-examined by the prosecutor, Mr Said’s reliability was challenged and a number of impediments to his being able to see all that he said he saw whilst cooking and serving customers were explored.
(xiv) Daniel Mace – bookshop visitor
Daniel Mace also gave evidence in the defence case. He visited the bookshop between once a week and once a fortnight on Saturdays during the relevant period. He saw RS doing work on 10 to 20 occasions. The prosecution contends that even if this evidence were to be accepted there were many Saturdays on which Mr Mace did not see RS. However, the time books record RS as working almost every Saturday.
(xv) Weekends and public holidays
The time books disclose a very large number of shifts for RS on weekends and at other times that attracted penalty rates. Before the accident, the appellant was, as the prosecution put it, “shrewd enough” to employ school-age children at low hourly rates. Egregious examples, according to the time books, are that RS is recorded as having worked nine-hour shifts or longer in 2015 on Good Friday, Easter Monday, Anzac Day, Queens Birthday weekend, and the October long weekend. These were to be paid at double time and a half. Mrs May assessed wages for the October long weekend 10-hour shift, at $486.50. In 2016, RS is recorded as working every public holiday until October 2016. There is no suggestion that RS was serving in the bookshop; he was doing the heavy work.
(xvi) The notice of demand to Allianz
The prosecution also relies on the Notice of Demand sent to Allianz after the appellant’s arrest.[125] This has already been considered.
Submissions, further to matters already referred to, relied on by the appellant on the question of knowledge
[125] Exhibit P2, p 131.
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
I have reviewed the evidence at trial and the parties’ submissions. Production by the appellant of the document in question (element 1) is conceded and readily established by the evidence. I am also satisfied beyond reasonable doubt that the document, the two time books, is egregiously false (element 2). The contents of the evidentiary summary chart, exhibit P1, not challenged, and the underlying evidence in support of that summary, render this latter finding inevitable. Without being comprehensive, the entries in exhibit P1 at items 70, 72, 105, 187, 189, 191, 198, 294 and 296 must be false. In addition, the entries at 35, 161, 175, 280, 301, 329, 350, 371, 564, 578, 585 and 606 are all times when RS was being treated by Sharmarie Flavel where her evidence is corroborated by bank records. There are also numerous occasions when EFTPOS records indicate transactions on the account of RS at locations long distances away from the bookshop (see for example various of the entries in column L in exhibit P1).
If, as at 14 October 2016, the appellant had an understanding of the true extent of any work in fact performed by RS during the period of time covered by the 2015 and 2016 time books and if she had an understanding of the contents of the time books, their egregious falsity including as to the entries noted immediately above, would have to have been known to the appellant.
A difficulty when considering element 3 is that much of the evidence relied on by the parties for the respective cases has been deployed as having some probative force with respect to both elements 2 and 3, falsity and knowledge. Many of the parties’ submissions appear to rely on aspects of the evidence in this undifferentiated way. The mere finding of falsity, even egregious falsity, is insufficient to establish the appellant’s knowledge. The majority of the evidence says more about the former and less, if anything, about the latter. However, there will come a time where the intrinsic likelihood or unlikelihood of the appellant’s case has to be considered.
Various aspects of the evidence, summarised above, cannot assist the prosecution with the application of the proviso and are excluded from my consideration for this purpose. This is because in each case an assessment of viva voce evidence by witnesses seen and heard by the jury is required. As such, I am in no position to adequately assess the reliability of their evidence in chief or the effectiveness of cross-examination. The evidence to be excluded for this reason is that of: Mrs May, Mr Tippett, Nicole Uys, Mr Millhouse and Ms Flavel (except to the extent that any of their evidence taken at its highest for the defence, lends support to the defence).
As far as the defence witnesses, Feras Said and Daniel Mace are concerned and for the purpose of considering the proviso, I will accept their evidence at its highest in support of the defence case. However, neither witness advanced the defence case to any significant extent. The prosecution was not obliged to prove that RS did no work at all; it can be accepted for argument sake that he did. The prosecution only had to prove that he performed fewer hours than as recorded and that, as at 14 October 2016, the appellant knew of this.
I also would place no weight on Mrs May’s evidence in any event, for the reasons earlier provided. Similarly, I would place no weight on the notice of demand sent to Allianz in 2018 for the reason submitted by the appellant, set out earlier.
I start with identifying the conceivable possibilities as to how and when the 2015 and 2016 RS time books came into being.
(i)The time books were completed by RS periodically during 2015 and 2016, broadly contemporaneously with the working of each shift or at the end of each week.
(ii)As in (i) but completed by the appellant.
(iii)As in (i) but completed jointly by RS and the appellant.
(iv)The time books were completed by RS in one or more sessions retrospectively, in October 2016, likely between 10 and 14 October 2016.
(v)As in (iv) but by the appellant.
(vi)As in (iv) but jointly.
There is no support in the evidence for possibilities (i) to (vi). The large number of false entries strongly suggests that relatively contemporaneousness periodic recording of shifts did not occur. As from early 2015 and thereafter until late 2016, there was no motive for the appellant to periodically falsify the time books. The notion that RS did so on his own, intending from early on, to defraud the appellant is fanciful. The possibility of contemporaneous periodic recording is strongly contraindicated by the evidence discussed above at: (iii) the 12 September 2016 list of documents; (iv) the January 2016 sworn statement of loss and the delayed supply of the time books; (v) the 10 October 2016 meeting with solicitor and counsel; and (vi) the 13 July statement of loss. It is also contrary to the case put by the appellant, who embraced the notion that the time books were hurriedly (re)constructed (albeit with an attempt at accuracy) in October 2016.
I exclude (i) to (iii) above as not reasonably possible and am satisfied that the time books were brought into being in October 2016 for the purpose of the civil litigation, that is, one of (iv) to (vi) above. As I have said, this is not, of itself, necessarily inconsistent with a genuine attempt to reconstruct a truthful position.
The admission by the appellant in her statement to her solicitor of 13 July 2015, quoted earlier, and the fact that the appellant lived at the premises, establish that the appellant had the capacity for having and, in the ordinary course, should have had a reasonably comprehensive understanding of the bulk of any work, its nature and extent, performed by RS during the relevant period. She may not, probably would not, have had a complete understanding as to precisely the number of hours worked on a day or the number of days worked in a week. But any suggestion that if confronted with the contents of the time books, the appellant would have had no way of perceiving an egregious overstatement of hours and the unusual timing of shifts (public holidays and weekends) as are recorded in the time books, is intrinsically implausible.
It remains conceivable, albeit there is no evidence in support, that RS prepared the time books in October 2016, at the appellant’s request, and deliberately falsified their contents which the appellant accepted on trust. But why would RS do this unless he was the fraud? I reject this as being a reasonable possibility.
That leaves (v) and (vi) of the conceivable possibilities, that is, the appellant created or actively participated in the creation of the time books only a matter of days before producing them to her solicitor on 14 October 2016. If so, it is highly likely that she knew they were false.
The prosecution does not succeed merely by establishing a high likelihood. However, the backdating (of which I am satisfied) of the employment agreement, exhibit P28, and the matters under the subheadings (iii), (iv), (v), (vi) and (xv), and after taking into account the defence submissions generally and, in particular, those in paragraph [187](i) to (xii) above, when considered as a whole, are sufficient to convert this high likelihood into proof of the appellant’s knowledge of falsity beyond reasonable doubt. I am satisfied that, when all of the circumstantial evidence, save for that informed by on credibility and reliability findings with respect to various of the witnesses, is considered as a whole, the inference that, as at 14 October 2016, the appellant knew that the time books were false is the only rational inference available.
In arriving at the above conclusion, I have taken into account the nature of the trial errors. As indicated, I am proceeding on the basis that an extended unanimity direction was not required. The concerns about permissible and impermissible uses of aspects of the evidence raised by appeal grounds 4 and 5 are matters that must be observed on an appellate review of the evidence. I have done so. It is also necessary to ensure that when conducting an appellate review of the evidence I am in no less favourable a position than was the trier of fact, in having had the natural advantage of having heard and seen the witnesses give their evidence. I have achieved this by only taking into account the aspects of the oral evidence that were favourable to the appellant.
Other elements
Given that element 3 has been satisfied, that is, the appellant knew, as at 14 October 2016, that the document in issue was false, elements 4 to 6 inclusive of the offence inexorably follow.
Conclusion
I would give permission to appeal with respect to amended appeal grounds 4 and 5. The appellant has succeeded in establishing appeal grounds 2, 4 and 5. However, as earlier explained, I am precluded from applying the proviso. I therefore, regretfully, would allow the appeal, quash the conviction and remit the matter to the District Court for retrial.
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
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