Steel v The State of Western Australia - [2004] WASCA 303

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: STEEL -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 303

CORAM: MALCOLM CJ
TEMPLEMAN J
SIMMONDS J

HEARD: 5 NOVEMBER 2004

DELIVERED : 5 NOVEMBER 2004

FILE NO/S: CCA 87 of 2004

BETWEEN: LEE NORA STEEL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No              :  CCA 87 of 2004
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WILLIAMS DCJ
Citation  :STATE OF WA v STEEL
File No  :IND 1135 of 2002

Catchwords:

Appeal against conviction - Stealing - Evidence of gambling ruled irrelevant - Defence proceed to cross-examine complainant on character - Prosecution respond by seeking to cross-examine defendant on gambling - Ruling reversed - Whether adverse effect on conduct of defence - Whether effect was that prosecution split its case

Legislation:

Evidence Act 1906, s 8

Result:

Appeal allowed
Convictions quashed
Retrial ordered

Category: B

Representation:

Counsel:

Appellant: Mr P G Giudice
Respondent: Mr D Dempster

Solicitors:

Appellant: Bostock & Ryan
Respondent: State Director of Public Prosecutions

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

Caratti v The Queen, unreported; FCt SCt of WA; Library No 980306A; 9 June 1998

Case(s) also cited:

Nil

MALCOLM CJ: In my opinion, this appeal should be allowed and the conviction quashed and a new trial ordered. I have come to that conclusion for the reasons which have been expressed by Templeman J and there is nothing I could usefully add to those reasons.
TEMPLEMAN J: This is an appeal against the conviction of the appellant on 34 counts of stealing as a servant involving a substantial amount of money, offences which are said to have been committed between 1996 and 1999. The appellant was convicted after a nine-day trial in the District Court and was subsequently sentenced to a term of imprisonment.
A number of grounds of appeal have been argued today, but the principal focus of attention has been on the second ground. I will read it and then explain the context. The ground is:
"His Honour the trial judge erred in allowing the prosecutor's application to cross examine the accused pursuant to s 8 of the Evidence Act as to her gambling at the Burswood Casino and the withdrawals from her credit card and joint bank account at that casino –"
and there are various particulars given. It is necessary to put that ground into context and it is this: that when the appellant was interviewed by police officers before she was charged, it emerged that she had been gambling at Burswood and it appeared that she had been using the money, or some of the money which she had taken, for that purpose.
I should say the appellant always admitted that she had taken the money, but her claim was that she was entitled to do so as a result of an arrangement between herself and her employer whereby she would be paid, as it was put, "off the books" in a way which constituted a fraud on the revenue, both by herself and by her employer.
When the case opened, the prosecutor told the Judge that he wanted to adduce evidence about the appellant's gambling. It was put on the basis that the appellant had "a strong motive for taking the money without the consent of the complainant who did not know that she was gambling with the money." That was at p 36 of the appeal book.
In the course of the submission to the trial Judge in relation to adducing that evidence, the prosecutor said quite expressly, "But doesn't attack her character." The trial Judge said, "The accused likes to gamble,

so therefore she's got a propensity to find money for it," to which the prosecutor replied:
"That would be - there is nothing wrong with gambling. People are entitled to gamble if they want to. It is not a propensity to steal. It's a propensity to gamble, perhaps, but people who gamble need money and it is my submission that it provides a strong motive for taking the money. It's my submission that the prosecution is entitled to lead this evidence unless you specifically exclude it and I draw your attention again to 11125 of Cross which says that evidence may be excluded where its prejudicial effect exceeds its probative value.
It is my submission that this is highly probative because it shows that she's got a strong - a good motive, a good reason for taking the money. It's my submission that it's properly in spite of the (sic, in support of the) prosecution's case."

Pausing there, the application was made clearly on the basis that the evidence relating to the appellant's gambling was evidence of motive for stealing the money but did not attack her character.
The learned trial Judge gave his ruling at p 43 of the appeal book. His Honour said:
"I remain of the view that I initially put to you that the evidence that you wish to lead is irrelevant to the issue which is the circumstances in which the accused received the money. Whether it was - it's an admission that it has been received. The question is whether it was received fraudulently. In my view what she has since done with the money is not relevant to that motive, so my first ruling is that it's irrelevant to the issues.
My second ruling is that if I am wrong in that respect and it is relevant, then I am of the view that the prejudicial value outweighs the probative value and my ruling is that the Crown can't lead that evidence."
The trial proceeded and the principal prosecution witness, a Mr Lange, gave evidence, he being, in effect, the appellant's employer. It was with him, the appellant said, that she had made the arrangement which entitled her to take the money that she did.
In the course of the cross examination of Mr Lange his character was attacked. It was attacked on the basis that he was involved in a fraud on the revenue in the way that I have described a few moments ago. No warning was given by the trial judge during the cross‑examination of Mr Lange, that by attacking his character in this way it opened up the prosecution to cross-examine the appellant as to her character should she give evidence.
It was accepted by the defence that the cross examination of Mr Lange would open up the appellant to cross‑examination as to character, but not in relation to the gambling because it was believed by the defence that the prosecution position was that gambling was not a matter which went to character.
However, when the appellant, having given evidence, was being cross‑examined an application was made under s 8 of the Evidence Act to cross‑examine her as to character and in particular to cross‑examine her as to the matter of gambling.
His Honour gave a ruling at p 635. His Honour said:
"Mr Giudice on behalf of Mrs Steel accepts that there has been an attack on character. He says that gambling does not equal bad character and in my view it does come within character and it is within the province of the section and I propose to allow the prosecution to cross-examine on character generally but, as I previously ruled, no questions were to be asked about the gambling, I specifically make reference to include that but the ruling is that I exercise my discretion in favour of the prosecution to allow questions to be put as to the character of Mrs Steel, including gambling.
If I am wrong in the exercise of my discretion in that manner, then in my view, having now heard the evidence, I am of the view that the ruling that I made at the beginning of this trial that the prosecution were not to ask any questions as to gambling, having reviewed the evidence I am of the view that that evidence is relevant in any event and I would allow that evidence anyway."
A number of things, I think, need to be said about his Honour's ruling. First, of course, it was the first time that his Honour had specifically ruled that gambling came, as his Honour put it, within character. That is surprising given the prosecution's statement at the opening of the trial that gambling was not a matter of bad character.
Secondly, having ruled that questions could be asked about gambling in the context of character, his Honour went on to say that that evidence was relevant in any event. His Honour did not say why it was relevant; but in my view his Honour must have come to the view that he had been in error before, in ruling that it had nothing to do with motive.
If his Honour was right on this second ruling, then it must follow that his Honour, with respect, had been wrong in the first ruling.
If his Honour had ruled at the outset that the gambling evidence was relevant to motive, then the prosecution would have adduced the evidence which it wished to adduce in relation to the withdrawals from the ATM at Burswood Casino. The matter would have been out in the open and it would then have been a matter for the defence to ask questions of the appellant in her evidence in chief to, as it were, defuse the evidence about gambling so as to put it into a more favourable light.
The effect of his Honour's ruling was that the prosecution split its case. The law in relation to the splitting of a case has been referred to recently in this court in the decision of Caratti v The Queen, unreported; FCt SCt of WA; Library No 980306A; 9 June 1998. In that case Anderson J, with whom Franklyn and Murray JJ agreed, said:
"The general principle is that the prosecution must offer all its proofs during the progress of the crown case and before the prisoner is called upon for his defence; Shaw v R (1952) 85 CLR 365 at 380. The prosecution may not split its case on any issue. This principle has two applications. One application is that the prosecution will not be permitted to call rebutting evidence after the prosecution case has been closed except in very special or exceptional circumstances –"
and authority is referred to. Then more relevantly:
"The other application is that the trial Judge may exclude cross examination of an accused person or his witnesses if the questions seek to elicit for the first time evidence which could and should have formed part of the prosecution's evidence in chief; R v Chin (1984-85) 157 CLR 671 per Dawson J at 686. The trial Judge should exclude the cross examination if it will unduly prejudice the accused having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case; R v Kane (1977) 65 Cr App Rep."
There is no doubt in my mind that the evidence about the gambling was of a highly prejudicial character. Equally, in my view, it could not be said categorically that the evidence was relevant to motive even if the prosecution had been properly permitted to split its case in the way that in fact happened. I say that because it is unclear whether the money was taken by the appellant in order to fund a gambling habit or whether she gambled because she had money available to do so.
In other words, it would not have been possible for his Honour, in my view, to conclude one way or the other that the gambling provided a motive for the taking of the money without going into the appellant's financial circumstances in a way which could only have been done on a voir dire.
By way of example, viewed objectively, it may have been that the appellant had money of her own, perhaps an inheritance, perhaps some other money, which was available to her to enable her to gamble. At the other end of the spectrum, again viewed objectively, it may have been that the appellant was in financial circumstances such that she could only afford to gamble if she stole.
Mr Giudice has said that the evidence was in fact that on all occasions when the appellant withdrew money from the Burswood ATM she had a credit balance in her account or had access to funds on credit; but that is by the way.
The principal point is twofold: first, that the defence was misled by the prosecution, no doubt inadvertently, into believing that the gambling evidence would not be used as evidence of bad character, and secondly the prosecution case was effectively split by reason of the learned Judge changing his mind about the admissibility of the gambling evidence in relation to motive.
The consequence of all that was that the appellant, as I have said, lost the opportunity of giving evidence‑in‑chief which would have enabled her to explain the use of the money for gambling. It would also have given the defence an opportunity to consider whether they should cross‑examine Mr Lange as to his character. Had the defence been aware that such a cross‑examination might expose the appellant to cross‑examination in relation to gambling, then a different decision might have been taken. The appellant lost that forensic advantage and in my view, as a result of that, there has been a miscarriage of justice.

I am reinforced in that view by the fact that there was no direction given by the learned trial Judge as to the use which the jury could make of the evidence relating to gambling. Mr Dempster referred us to p 809 of the transcript where in his Honour's charge he said:
"He –"
that is counsel for the appellant -
"referred to the gambling and suggested to you that that was simply a red herring, that other matters would indicate that Mrs Steel was not in any financial trouble on that vis‑a‑vis what Mr Foulsham says. That would explain why she was taking so much money at that time. That's for you. As I said, there are factual issues for you to sort out. That's in summary what counsel have said to you in relation to the matter."
In my view, it was quite inadequate in the circumstances of this case for the trial Judge to say to the jury that that was a matter for them to sort out. I very much doubt whether, once the evidence about gambling had been admitted in the way that it was, it would have been possible to cure the prejudice by a direction, but the question does not arise because, as I say, there was in fact no direction in any event.
For those reasons I have come to the conclusion that the trial miscarried and that therefore the conviction should be quashed and a retrial ordered.
There were a number of additional grounds argued in the course of this application. I do not consider it necessary to deal with those grounds because, in my view, this is such a substantial ground that it stands alone and I would therefore not deal with the other matters.
SIMMONDS J: I too agree in the order proposed by his Honour Templeman J. His reasons express my own view of the basis for so concluding.