Taylor v The Queen - [2017] NSWCCA 2

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Taylor v R [2017] NSWCCA 2
Hearing dates: 23 and 24 November 2016
Decision date: 02 February 2017
Before: Basten JA at [1];
R A Hulme J at [117];
Schmidt J at [128]
Decision:
(1) Grant the applicant leave to appeal against his convictions.
(2) Dismiss the appeal.
Catchwords:
APPEAL – criminal – judge alone trial – nature of appeal – constraints on challenges to findings of fact based on credibility assessments – appeal not in nature of rehearing

CRIME – appeal – steal money property of employer – judge alone trial – challenge to admission of evidence – challenge to reasons – whether verdicts unreasonable or cannot be supported on the evidence

EVIDENCE – admissions – responses to questioning by investigator hired by employer of accused – whether investigator an “investigating official” – whether investigator capable of influencing decision to prosecute – Evidence Act 1995, s 85
EVIDENCE – admissions – whether deed by which accused agreed to repay money contained an admission – whether deed admissible – whether letter explaining failure to make repayment under deed admissible
Legislation Cited: Crimes Act 1900 (NSW), s 156
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), ss 33, 133, 281
Evidence Act 1995 (NSW), ss 84, 85, 88, 90, 119, 128, 138, 184; Dictionary
Trade Practices Act 1974 (Cth), s 155
Cases Cited: Australian Competition and Consumer Commission v Pratt (No 3) (2009) 175 FCR 558; [2009] FCA 407
Beale v NSW Government Insurance Office of NSW (1997) 48 NSWLR 430
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
R v O’Donoghue (1988) 34 A Crim R 397
Simic v The Queen (1980) 144 CLR 319
W v R [2014] NSWCCA 110
Waterways Authority v Fitzgibbon [2005] HCA 57;
221 ALR 402 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Category: Principal judgment
Parties: Adam John Taylor (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr M Thangaraj SC/Mr N Simpson (Applicant)
Mr H Baker (Respondent)
Solicitors:
K Sidaway (Applicant)
Solicitor for Public Prosecutions (Respondent

File Number(s): 2013/372748
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 February 2016

Before:

Garling ADCJ

File Number(s):

2013/372748

Judgment

BASTEN JA: Between September 2009 and February 2012 the applicant, Adam John Taylor, was employed as the manager and licensee of the Hurlstone Park Hotel, also known as “Grumpy’s Hotel”. On 4 November 2015 the applicant was convicted of two charges of stealing money from the owner of the hotel, in his capacity as an employee, being offences under s 156 of the Crimes Act 1900 (NSW). The amount involved exceeded $500,000, although it was broken down into two separate counts, to reflect two different ways in which the money was taken. These will be explained below.
The applicant was sentenced on 29 February 2016 to imprisonment for four years, with a non-parole period of 2 years and 8 months. By notice of appeal filed on 17 August 2016 he sought leave to appeal against his convictions. The applicant required leave because the grounds of appeal included factual issues and were not limited to a question of law alone. [1] There should be a grant of leave to appeal, but the appeal must be dismissed.
1. Criminal Appeal Act 1912 (NSW), s 5(1).

Factual background

The two elements of the system by which the applicant extracted money from the hotel may be briefly stated, because the takings were largely undisputed and the trial turned on whether the applicant had authority to do what he did. In brief, the defence case was that he was entitled to the cash pursuant to a bonus scheme which was a term of his employment.
The hotel was owned by a company, Ash-Stan Wright Consultants Pty Ltd, the directors of which were Rosalind Ashton, Graham Standen and Carole Wright. Each of them, described as “Director/Co-Owner”, was a signatory to a letter dated 21 August 2009 to the applicant, containing an offer of employment. That letter specified a commencement salary of $80,000, to increase, following the completion of a three month trial period, to $85,000. There were other entitlements within the package. The letter continued:

“We believe effort and results should be rewarded therefore we are confident in saying that the salary package that we are now presenting to you is based on reward for ‘effort and results’. Therefore a bonus system will be introduced after your three months trial period. The reward bonus system will be set on realistic and achievable targets. We will be happy to discuss this with you personally.”

It was the applicant’s case that a bonus system was negotiated and was in fact incorporated into a letter dated 28 September 2009 and signed by Carole Wright. The prosecution case, based on the evidence of all three directors, denied the existence of any agreed bonus system and dismissed the September letter as a fabrication.

The September letter commenced:

“After review of your results the following bonus system has been structured”.

That offer was inconsistent with the proposed three month trial period contained in the letter of employment. The September letter then identified what was described as a “turnover based incentive” in the following terms:

“A bonus payment will be made weekly on the provision that the weekly average turnover exceeds $400,000 in a week
Targets aligned with below tiers
a.   $400,000 – $2000
…
f.   $650,000 – $4500
g.   $700,000 – $5000

Turnover exceeding these targets paid at a rate of 30 cents in the dollar based on Nett plus achieved bonus payment from top tier in the above structure.”

Several elements of this document were unclear and were the subject of oral testimony. It may be noted that, assuming a weekly turnover of $700,000, the bonus payable would have been $260,000 per annum.
The money was taken by the applicant from two sources. The first source involved the supply of cash to an ATM in the hotel. As the manager of the hotel, one of the applicant’s functions was to restock the cash in the ATM. As the ATM maintained its own record of payments to customers, it was possible to compare amounts contained in the daily trading sheets (prepared by the applicant for the hotel) with the bank records showing the amounts which were ultimately reimbursed by the operator of the ATM, a company known as Banktech Group Pty Ltd. The amount recorded on the daily trading sheets exceeded the amount reimbursed by Banktech. It was the prosecution case that the applicant took the difference. Thus, for example, the daily trading sheet for 10 September 2010 showed total takings of some $19,000 of which $14,760 were shown as having been used to restock the ATM. The Banktech record for 11 September 2010 showed an amount of $13,760 as the relevant credit to the hotel. That amount was credited to the hotel bank account with NAB. The difference, being $1,000, was the amount which the applicant was said to have stolen.
The second technique also relied upon false entries on the daily trading sheet. The sheet contained details of the takings from the poker machines. There was a line on the printed sheet which allowed an entry for “less jackpot payout”. It was common ground at the trial that this line was redundant because the poker machines themselves had, since August 2006, contained an electronic system which automatically deducted the jackpot payouts from the printout produced by each machine. It was the prosecution case that where the daily trading sheet recorded an amount for the jackpot payout it represented cash taken by the applicant.
Count 1 on the indictment, alleging a theft of $254,580, related to entries in the daily trading sheets of the inflated amount of cash to restock the ATM. Count 2, alleging the theft of $277,702.85, related to amounts recorded by way of jackpot payouts on the daily trading sheets. Although the documentation, which covered some 30 months of the operation of the hotel, was voluminous, the two techniques to falsify the records were readily capable of mechanical checking and reporting. On the prosecution case, the discrepancies in the records were discovered by an accountant, Bryan Johnson, who was engaged by a prospective purchaser of the hotel and who concluded that the accounts were inaccurate. When he reported his findings to the owners in late 2011, he was employed by them to undertake a thorough audit of the discrepancies in the poker machine takings. He also audited the ATM accounts for a one month period. Following that, Carole Wright made a more complete audit of the ATM settlements and, having identified regular discrepancies, employed Mr Richard Hayes to undertake a more complete audit. These results led to suspicion first attaching to the applicant in November 2011. In January 2012 a private investigator, Michael Gerondis, undertook a detailed inquiry and gave advice to the owners as to how to deal with the applicant.
On 13 February 2012 there was a meeting at the hotel attended by Mr Gerondis, Mr Johnson and the applicant. In the course of conversations on that day the applicant was said to have made a number of admissions. The admissibility of those admissions was the subject of a ground of appeal. The outcome of the meetings on that day was an offer by the applicant to repay some of the money which had been taken and, on 29 February 2012, having obtained legal advice, the applicant entered into a deed, agreeing to repay an identified amount.
The applicant did not meet his obligations under the deed and the owners referred the matter to the police. A police forensic accountant, Scott Wallace, then undertook a further audit of the hotel accounts and also prepared a table of “unexplained wealth” as a result of his investigation of the applicant’s bank accounts for the period 1 September 2009 to 14 February 2012. The analysis of accounts in the names of the applicant and his partner resulted in a total value of unexplained funds in an amount a little short of $1 million.
The defence case did not challenge the discrepancies identified in the daily trading sheets for the hotel; rather, it focused on the crudeness of the variations to the records as a basis for submitting that all of the amounts taken were taken with the knowledge of Carole Wright, who was not only a director of the owner of the hotel, but also the hotel’s bookkeeper. She was cross-examined at some length in an attempt to demonstrate that, as a responsible, knowledgeable and diligent bookkeeper, she could not but have identified the discrepancies. It was submitted that her denials were simply implausible and, accordingly, the money taken by the applicant was taken with the knowledge and approval of a director of the owner.
There was no doubt that the hotel was not a financial success at the time the applicant was employed; the financial viability of the business remained tenuous throughout his employment and the owners continued to seek prospective purchasers, through an agent, John Musca. The defence called two partners, Marcus Levy and Michael Sanchez, who were introduced by Mr Musca as potential purchasers. They made an offer of $10.5 million for the hotel, which was said to be some three times the value of the hotel, calculated on the trading profit revealed in its accounts. It was the defence case that Carole Wright had told the prospective purchasers that the takings from the hotel were significantly higher, when account was taken of “black money” not revealed in the accounts. This evidence was said to display knowledge on Mrs Wright’s part of the arrangements by which the applicant was receiving additional moneys, far beyond his salary.

The trial and grounds of appeal

The trial took place in the District Court before Acting Judge Garling, sitting without a jury. The trial ran for some 18 days, from 5 November until 2 December 2015. On 4 December 2015, the trial judge delivered judgment, finding the applicant guilty of each charge.
The grounds of appeal filed by the applicant were discursive and read as follows:

“Appeal Ground 1: Unreasonable verdicts
It is the appellant's submission that the guilty verdicts on both Counts are unreasonable and cannot be supported having regard to the evidence.
Appeal Ground 2: His Honour erred in admitting the following into evidence
(a)   the admissions said to have been made on 13 February 2013 (including Exhibits T & A3);
(b)   the Deed (A2); and
(c)   the privileged communication (Exhibit A7).
Appeal Ground 3: His Honour erred in making the following specific findings of fact:
(a)   As regards the bonus structure:
(i)   That the letter dated 28th September 2009 (i.e. Exhibit 10 as well as Exhibit 11) was not composed or authored by Carole Wright;
(ii)   That the bonus was calculated on a ‘totally unrealistic basis’;
(iii)   That no such bonus scheme ultimately existed; and
(iv)   That the appellant's evidence in this regard cannot be accepted.
Appeal Ground 4: His Honour erred in failing to consider the following evidence:
(a)   The evidence regarding the proposed sale of the Hotel for $10.5 Million, how Hotel values were valued within the Hotel industry, and what that meant in terms of how much undeclared cash was being taken out of the business.
(b)   The evidence regarding the ATM discrepancy that was detected by Donna Wright involving an understatement (rather than an overstatement) of that figure on the DTS and that fact she was cross-checking the ATM figures as stated on the DTS with that shown on the Hotel's bank statements.
(c)   The evidence of Carole Wright in proper detail, particularly the inconsistencies and credit issues arising from her evidence.”

Although ground 1 (unreasonable verdicts) was addressed first in the course of submissions, it is logical to deal first with the challenge to the admissibility of certain evidence (ground 2). Having identified the proper evidential basis for the judgment, it is then appropriate to deal with the challenge to particular matters, as set out in grounds 3 and 4, and to address the unreasonable verdict ground in that context.

Evidence of admissions

(a) admissions – 13 February 2013

The first set of admissions took place at the meeting between the applicant and Messrs Gerondis and Johnson on 13 February 2012. Mr Gerondis gave evidence that he took handwritten notes during the meeting, which were typed up shortly thereafter; the original notes are no longer available. The typed document became Ex A3 at the trial.
The typed version recorded Mr Johnson explaining to the applicant that the purpose of the meeting was to reconcile the banking and the ATM records. The discrepancies which had been identified were explained. The following conversation then took place: [2]
2. Ex A3, pp5-6. The parties were identified by initials, the applicant as AT, Mr Johnson as BJ and Mr Gerondis as MG.

“BJ
The reconciliations don’t work. Do you think you think [sic] you would be responsible?
AT
We have to find where the money’s gone. The discrepancy is huge, very serious.
MG
We are going around in circles. Adam having listened to all this, it appears to me that you know where all the missing cash has gone, you have taken it. There is no other answer, do you agree?
AT
(Pause.) Yes, I have been taking it. I took the money from the ATM. I didn’t realize how much it was. I just took some most days. I admit it, I shouldn’t have done it.
MG
Is there any left?
AT
No it’s all gone. I spent it.”

Mr Johnson also gave an account of that conversation in his oral evidence, in the following terms: [3]
3. Tcpt, pp 323-324.

“Q. Doing the best you can, what did you say and what did he say?
A. In following the process through on how the amounts arrive at a banking total, Adam agreed with me that would be the correct amount that we should arrive at, but the takings sheet, the way that it was added up, meant that there would have been surplus cash available. Physical cash would have been greater than what was on the sheet, and I asked the question, ‘What did you actually do with that surplus?’
Q. Yes, and what was his response to that question?
A. No response from Adam. He didn't disagree with me or didn't agree with me.
…
Q. Did you repeat your request at any stage for that or--
A. I continued that exercise, again, with Adam, and going through the process on the basis that he may not have understood what I was talking about, so I continued that process through again for a period of approximately 20 minutes.
Q. Are you saying that he remained entirely silent during that period, or did he respond to you?
A. No response either way.
…
Q. At that point, what happened next?
A. Michael who was also sitting in on the meeting … spoke up then and said, ‘We can go on. We can talk about this.”
…
A. He spoke to Adam and he said, ‘I understand what Bryan is describing to you. This process is that you understand … This could go either of two ways.’ He could tell us what he did or tell us what happened or the information and the sheets, the reconciliations, the data that I had collected, would all be handed over to the police and they could attend to it, or words of that nature.
Q. How did the accused respond to that? What did he say?
A. Initially he was silent and then he did say that he had taken money.
…
A. He said, ‘I have taken money.’”

There was no further conversation elicited from Mr Johnson before Graham Standen entered the room. However, Mr Gerondis had said that the conversation continued, with several questions and answers about where the money had gone, with the applicant indicating that it had been spent on bills and living expenses.
Mr Johnson also gave evidence of a part of the conversation after Mr Gerondis had left the room, in the following terms: [4]

“Q. You stayed in the room with Mr Taylor. Did you say anything to him--
A. There was a period of silence.
Q. --while Mr Gerondis was out of the room?
A. While Mr Gerondis was out of the room I said to Adam, ‘Why would you do this?’ or ‘Why did you take the money?’ – that question – and the response was that nobody had questioned the transaction.”
4. Tcpt, p 325.

In the course of cross-examination of Mr Johnson, the basic admission was confirmed: [5]

“Q. Can I suggest to you what then happened is Mr Taylor said that he had taken money? Correct.
A. Yes.
Q. And then at that point Mr Gerondis got up, left, went out of the room?
A. Yes.”
5. Tcpt, p 329.

In cross-examination, the following exchange took place in relation to the discussion after Mr Gerondis had left the room: [6]
6. Tcpt, p 330.

“Q. Do I understand what you said is at one stage he responded, ‘Nobody questioned the transaction,’ or something like that?
A. Yes.
Q. Is that a recollection you have now or is that something you've – are you sure about that, that he said that, or not?
A. Yes, I'm sure that that was the response; that nobody had questioned--
Q. I'll just read on when I asked you questions earlier in the year. This is after the passage when you've said he just indicated he had taken money. I asked this question:
‘Q. Did he ever give an explanation during the course of this interview or conversation about where the money went?
A. Not at all, no. We didn't enter into any of those conversations at that meeting.’

A. Yes, that's correct.
Q. Can I suggest to you that at no stage did he say, ‘Nobody questioned the transaction’? Could you be mistaken about that or not?
A. That's my recollection; that he responded in that form.”

It is clear on the transcript that Mr Johnson was not effectively challenged in respect of this conversation. He had given evidence in an earlier hearing (on 20 April 2015) but it is far from clear from the exchange set out above that the challenge to his evidence at trial went to the same point; Mr Johnson clearly thought that it did not.

The second admission, namely that he had continued the exercise of false book entries in the daily trading sheets over a long period because nobody had questioned the transaction, was entirely consistent as an explanation of his conduct, and inconsistent with the defence that Carole Wright had known about the transactions and approved them.
The third admission was made after Graham Standen came into the room with Mr Gerondis. Mr Gerondis recorded the applicant stating: [7]

“Graham, I am very sorry. I have been taking money from the ATM. I have no excuse. Carol knows about the pokie money. I will resign immediately, here are the keys (handed keys). Can we work out how I can pay it back to you?”
7. Ex A3, p8.

Mr Standen had a somewhat different recollection. He said that after Mr Johnson and Mr Gerondis and the applicant had been in the office for “probably 40 minutes”, [8] Mr Gerondis came out and took him into the office and the following conversation took place:

“Q. Did you speak to Mr Taylor?
A. One word – ‘Why?’
Q. You said, ‘Why?’ What did the accused reply when you said that?
A. ‘I did it the first week I was there. No-one checked me so I kept doing it. No-one checked me so I kept doing it.’
Q. What did you do after that?
A. I just had a quick discussion and walked out. I couldn't sit there any longer.”
8. Tcpt, p 282.

Although he gave no evidence of receiving an apology, he did state that it was the applicant who had asked him to come in and who wanted to talk to him, “because I treated him like a son and that was too much for me to have to go in there and face him, but anyway, I did for a very short time.” [9] Whether or not there was an apology, there was an admission and Mr Standen agreed that the applicant had offered to pay it back and provide his flat as collateral.
9. Tcpt, pp 283 and 310-312.
The fourth admission was in more general terms. Carole Wright’s son, Mark Wright, was a senior fire fighter with the New South Wales Fire Brigade and had been in that position for in excess of 30 years, [10] but had also assisted with wages at the hotel.
10. Tcpt, p 612.
A conversation was elicited from Mr Wright in relation to the day of the applicant’s dismissal when he said he saw him at the hotel. [11]
11. Tcpt, p 617-618.

“Q. And did you approach him?
A. Yes, I think I approached him on the stairwell. He was going up to his residence. He was going to get the keys, or something.
Q. What did you say to him?
A. I said words, to my memory, to the effect of, ‘How could you possibly do this to our family? We have treated you so well,’ and, ‘It was just a shocking thing to do.’
Q. When you said that to him, do you observe his demeanour?
A. He was upset. He had tears in his eyes and he looked genuinely upset to me.
Q. What did he say?
A. He said – he seemed to say he had no explanation. He said, ‘I can't explain it.’ He didn't know why he did it. He did not give me an explanation. He said, ‘I can't explain it. I don't know. I don't know why I did it.’
Q. Did he say anything else?
A. He said he had a unit in Darlinghurst he owned, or had equity in, and he would be prepared to give it to the owners of the pub as compensation for the theft that he had done.
…
A. Well, ‘Mark, I'll see a solicitor in the next few days and I will instruct him to sign the unit over to the owners of the pub as long as you give me an assurance that you will not go to the police.’
Q. What did you say in response to that?
A. Well, I said, ‘I'm not in a position to say 'yes' or 'no', but I will relay this to Graham and Rosalind and mum,’ Carole.”

This admission was also at a level of generality; there was no indication as to precisely what conduct had been the subject of the agreement. In contrast, the apology to Mr Standen, as recorded by Mr Gerondis, appeared to constitute an admission to count 1, but with a suggestion that there may have been prior knowledge of at least one director in relation to the takings which became the subject of count 2 (“Carole knows about the pokie money”).

(b) admissibility of admissions

By the time of the trial, the significance of the admissions lay not in the fact that the applicant admitted that he had taken money, but in his acceptance that he was not entitled to do so. The importance of that proposition in the prosecution case was that, subject to the equivocal suggestion as to what Carole Wright knew, as recorded by Mr Gerondis, he did not proffer the explanation upon which he relied at trial, nor did he indicate that there was an agreed basis for the calculation of the bonus to which he was entitled.
The first basis of challenge to the oral admissions appears to have been that there was a degree of inconsistency in the evidence of the three principal witnesses and it was therefore not possible to identify an actual “admission”. The evidence was clearly capable of constituting an admission (and indeed a repeated admission) that he had taken money to which he was not entitled. The judge rejected the objection taken on this basis and was correct to do so. Within the terms of s 88 of the Evidence Act 1995 (NSW), it was “reasonably open” to find that the applicant had made the admissions. Ground 2(a) must be rejected.
The second limb of the objection alleged that the applicant was questioned by, or in the presence of, “an investigating official” who was at the time performing functions in connection with the investigation of the commission or possible commission of an offence, within the terms of s 85(1) of the Evidence Act and under s 281 of the Criminal Procedure Act 1986 (NSW) imposing, as a condition of admissibility, electronic recording of the questioning.
The definition of “investigating official” in the Dictionary to the Evidence Act (and in s 281(4) of the Criminal Procedure Act) is, in effect, a police officer or another person appointed under an Australian law whose functions include the prevention or investigation of offences. Mr Gerondis was a licensed private investigator: he was not a police officer. The judge correctly rejected the submission that he was an “investigating official”. No plausible argument has been presented to demonstrate error in that regard.
Thirdly, it was submitted that the conduct was influenced by “violent, oppressive, inhumane or degrading conduct” on the part of Mr Gerondis, or a threat of such conduct. Section 84 of the Evidence Act requires that the Court be satisfied that the admission was not so influenced, otherwise it will be inadmissible.
The judge did not accept that any “substantial threat” had been made to the applicant. [12] In particular, he rejected the proposition that the applicant had not been given a chance to get legal advice; rather, he accepted that the admissions had been made whilst the agents of the owners were still seeking to resolve what had happened to the money.
12. Judgment, p 50.
In the circumstances set out above, there was no basis, on any view of the conversation, for the suggestion that Mr Gerondis had been threatening violence or inhumane or degrading conduct. Accordingly, the admissions could not have been influenced by such conduct. If the term “oppressive” could be satisfied by some lesser conduct or threatened conduct, its precise nature was not explored.
The judge accepted the evidence given by Messrs Johnson and Gerondis as to what happened in the course of the interview, preferring Mr Johnson where they differed. The applicant did not give evidence on the voir dire. The submissions on the appeal did not suggest that the objections to admissibility had been reopened after the applicant gave evidence as part of the defence case. Indeed, the final submissions with respect to the admissions were limited to some general statements in relation to the unreliability of the various accounts. [13] It will be necessary to return to these submissions in respect of the challenge to the reasonableness of the verdict; at present it is sufficient to say that no argument was presented at that stage supporting inadmissibility.
13. Tcpt, pp 1114(30)-1115(50).
Finally, the applicant contended that evidence of the admissions should have been rejected by the Court in the exercise of its discretion to reject admissions where it would be “unfair” to the accused to use the evidence. [14] The alleged unfairness relied upon the same material as that cited above, the applicant submitting that, if it did not satisfy the higher hurdle of inadmissibility, it nevertheless warranted discretionary exclusion.
14. See Evidence Act, s 90.
In substance the argument rested on the proposition that the applicant had been told that if he did not accept responsibility for the losses, the information obtained by the investigators would be put in the hands of the police. The applicant then said that he had taken the money. The cross-examination of Mr Johnson confirmed this account. [15] It was not suggested to Mr Johnson that fairness required any other course to be taken.
15. Tcpt, p 329.
Mr Gerondis had a somewhat different recall of the conversation to that accepted by Mr Johnson. Mr Gerondis was cross-examined to suggest that Mr Johnson’s recounting of the conversation was correct. It was not suggested to Mr Gerondis that the investigators should have taken other steps in fairness to the applicant. [16]
16. Tcpt, p 271.
The trial judge, in his final judgment, said that there had been “no evidence of unfair handling of the interview or discussions”. He noted that Mr Gerondis had previously been a senior police officer, but said that the admissions seemed to be spontaneous. [17] It was not demonstrated on the appeal that that conclusion was wrong.
17. Judgment, p 50.
It follows that, the various bases for challenging the evidence of the admissions having been rejected, ground 2(a) must be rejected.

(c) admissibility of deed

In the course of the meeting on 13 February 2012, the applicant offered to repay the money he had taken and to provide security in the form of his equity in a flat in Darlinghurst, on condition that the owners would not report the discrepancies to the police. Following that meeting, he spoke to a solicitor and a deed was prepared between him and his partner on the one hand and the owner of the hotel on the other. The recitals recorded his admission to removing money from the hotel and his willingness to repay to the owner an amount of $275,000. The deed, which was dated 29 February 2012, contained a confidentiality clause by which each of the parties agreed not to disclose the terms of the deed or any matter relating to the claim to any person other than their own legal advisors, accountant or auditor, “except as may be required by law.” [18] There was a specific obligation on the owner not to disclose such matters to its insurer, [19] and further an undertaking by the owner “that it will not make any complaint or lodge any report in respect of any matters, facts, alleged facts or circumstances relating in any way to the claim or the terms and conditions of this Deed to any police or similar authority.” [20]
18.    Deed of Settlement, cl 5.1.
19.    Clause 5.2.
20.    Clause 5.3.
The issue as to the admissibility of the deed was raised in the prosecution case at the stage when the oral admissions were sought to be tendered. The deed was tendered as evidence that, having obtained legal advice, the applicant maintained his acceptance that he was not entitled to the moneys taken. (He agreed that the amount of $275,000 which he had promised to repay was not the full amount of the money taken but an amount that he had agreed upon because he thought he could pay it.) [21]
21. Tcpt, p 899.
In somewhat generic terms, the same provisions of the Evidence Act were relied upon as a basis for rejecting the admissibility of the deed. The trial judge noted the submission that the deed had been executed as “a result of pressure.” [22] However, the judge was satisfied that “it was the accused who was attempting to head off any police action by offering to pay a least part of the money back and he quite voluntarily entered the deed.” [23] The objective circumstances supported that conclusion. The deed was executed some two weeks after the applicant resigned from his position at the conclusion of the meeting on 13 February. In the meantime, he had had ample opportunity to obtain legal advice and had done so.
22. Judgment, p 51.
23. Judgment, p 51.
In the course of oral argument, the challenge focused on what was described as a principle articulated by Ryan J in Australian Competition and Consumer Commission v Pratt (No 3). [24] That case related to an investigation between representatives of the ACCC and the Visy Group of companies, which resulted in a set of consent orders. The document noted an agreement that the ACCC would not seek a separate pecuniary penalty against Mr Pratt on three grounds, one of which accepted that there had been a contravention of s 155 of the Trade Practices Act 1974 (Cth). The question was whether that document could be tendered as an admission in later proceedings. The applicant relied upon the following statement by Ryan J:[25]

“An agreement does not ordinarily constitute a representation by a contracting party. One reason for that is the difficulty in attributing a particular statement in the agreement to one party or the other. It is also notorious that parties to an agreement may elect to conduct their contractual relations and, if necessary, enforce the rights arising from them on a basis which is contrary to fact.”
24. (2009) 175 FCR 558; [2009] FCA 407.
25. Pratt at [77].

Those propositions may be accepted and may apply, as the judge also noted, to pleadings. However, the case does not assist the applicant. Ryan J stated, before considering the particular documents before him, “it is a question of fact whether a pleading or analogous statement in previous proceedings constitutes an admission available to be adduced in later civil or criminal proceedings against the party on whose behalf the pleading was filed or the statement was made.”[26] Further, following the passage relied on by the applicant, the judge immediately acknowledged:[27]

“That is not to say that no statement in an agreement or contractual document can ever constitute a representation in the sense used in the definition of ‘admission’ in the Evidence Act. A recital to a deed or other written contract may, in its context, be so expressed as to warrant the conclusion that both contracting parties intended it to operate as an assertion of actual fact. In that event, the recital, in my view, would be admissible in later proceedings as an admission against either contracting party.”
26. Pratt at [74].
27. Pratt at [77].

There was no reason to suppose that the statements relied on in the deed did not constitute representations of the actual facts, as understood by the applicant. They were consistent with the oral admissions. Their significance in the prosecution case was that they were made after the applicant had obtained legal advice.
In the course of the hearing in this Court, the applicant also submitted that the deed should have been excluded pursuant to the discretion in s 138 of the Evidence Act, on the ground that it was “obtained … improperly or in contravention of an Australian law”. The impropriety relied upon was said to be a breach of the confidentiality provision in cl 5 of the deed. If the impropriety arose from the disclosure of the deed, then the applicant needed to establish that the prosecution had obtained the deed by improper or illegal means. There was an exception to the non-disclosure requirements, to permit such disclosure “as may be required by law.” There was no evidence to support the conclusion that the deed had been improperly obtained.
There was a second aspect of cl 5, to which the applicant made reference, which purported to preclude the owner of the hotel reporting the conduct to the police. The basis for reliance on that provision was somewhat vague. Whether the provision was effective and enforceable was not in issue in the criminal proceedings. Even assuming that there was a breach of contract on the part of the owners in reporting the applicant’s conduct to police, that fact provided no proper basis for rejecting the deed as improperly obtained.
It follows that ground 2(b), challenging the admissibility of the deed, must be rejected.

(d) letter of 16 April 2012

On 16 April 2012, the applicant’s solicitors wrote to the solicitors for the hotel owner advising that the applicant would be unable to comply with his promise to repay the moneys under the deed because he had not been able to secure finance. The inference to be drawn from the letter was contrary to evidence which the applicant gave at trial under cross-examination that he did not complete his obligation under the deed because he had discovered he had a defence to the claims against him. The letter of 16 April was tendered to demonstrate that he did not proceed because he could not raise the money.
The applicant objected that the letter was inadmissible because it was subject to immunity from disclosure as a without prejudice communication in the course of settling a dispute, for the purposes of s 119 of the Evidence Act. In circumstances where the applicant was unable to fulfil his obligations under the deed, the protection given by s 119 may well be engaged. However, that in turn would raise a question as to whether the use of the document, to cast doubt on evidence given by the applicant in the witness box, would fall within an exception.
None of these issues was properly addressed in the course of the appeal. Nor do they need to be resolved. The relevance of the letter was limited and there is no basis for thinking that it played any part in the reasoning of the trial judge. It tended to contradict the applicant’s testimony that he believed he had a defence to the charges that he had misappropriated the money. His own belief in that regard and the time at which it arose depended squarely upon such considerations as whether the letter setting out the bonus scheme was a fabrication or not. His reason for not honouring the deed was insignificant in this context.
The letter may also have had some possible relevance had it been necessary to determine whether his obligations under the deed had been fulfilled or not and, if not, why not. This too was an entirely tangential issue of no material significance.
In these circumstances, it is not necessary to determine whether the letter should not have been admitted on the basis that it constituted a without prejudice communication in the course of a civil dispute. Admission of that evidence could not possibly constitute a miscarriage of justice. Ground 2(c) must be rejected.

Remaining grounds 1,3 and 4

It is convenient to deal with the remaining grounds together, being the course adopted by the parties to the appeal. The specific challenges mounted in grounds 3 and 4 will be addressed in the course of considering whether the verdicts were unsupportable on the evidence.
As has been explained, the applicant’s case at trial was not that he did not take the money as alleged, but that he had authority to do so. That authority was said to derive from the letter of 28 September 2009, purportedly signed by Carole Wright, and setting out a basis for calculation of bonus payments, in addition to his salary. He sought to demonstrate that the alleged arrangement was plausible on two bases. The first was that the recording of deductions on the daily trading sheets was so patently a device that Carole Wright, as a competent bookkeeper with experience of the business, could not have failed to identify the fraud, had it been such. Secondly, he relied on evidence of an offer of $10.5 million for purchase of the hotel, which must have reflected knowledge of the deductions from the reported turnover and thus a level of profitability well in excess of that declared by the hotel in its records.

It is convenient to start by stating the principles to be applied in assessing the grounds which all concern the judge’s assessment of the evidence.

(a) relevant legal principles

The ultimate finding of a judge sitting without a jury as to the guilt of an accused person has the same effect “for all purposes” as a verdict of a jury. [28] As explained in Filippou v The Queen, [29] that language engages s 6(1) of the Criminal Appeal Act, which provides that the court shall allow an appeal against conviction, relevantly for present purposes, “if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”. [30] (This is commonly identified as the first limb in s 6(1).)
28. Criminal Procedure Act 1986 (NSW), s 133(1).
29. (2015) 256 CLR 47; [2015] HCA 29.
30. Filippou at [11].
The third and fourth grounds of appeal [31] do not state the basis on which the alleged errors fall within the scope of s 6(1). That is not to say that they are not available, but rather emphasises the difficulties in applying the language of s 6(1), the historical background to which was considered in Fleming v The Queen, [32] in the context of a trial conducted by a judge alone, who is required to state his or her findings of fact and process of reasoning. [33]
31. Set out at [16**] above.
32. (1998) 197 CLR 250; [1998] HCA 68 at [16]-[22].
33. Criminal Procedure Act, s 133(2); Fleming at [25] and [28].
In Filippou, the joint reasons stated:

“[9] As was also explained in Fleming, perforce of s 133 of the Criminal Procedure Act, each of the three limbs of s 6(1) of the Criminal Appeal Act is capable of application to the verdict of a judge alone. [34] For the purposes of the first limb, the question is whether, upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge's finding of guilt is ‘unreasonable’ or ‘cannot be supported’. For the purposes of the second limb, the question is whether the judge has erred in law in the sense of a departure from trial according to law. [35] Under the third limb, the question is whether for any other reason there has been a miscarriage of justice.
[10] In Fleming,[36] the Court left open the question of whether the Court of Criminal Appeal should intervene under the first or third limb of s 6(1) only if it appears that there is no evidence to support a finding of guilt or the evidence is all the one way or where there has been a misdirection leading to a miscarriage of justice. [37] For the purposes of this appeal, it is necessary to answer that question.”
34. Fleming at [24] (referring to s 33 of the Criminal Procedure Act, then in identical terms to s 133 as presently in force).
35. Weiss v The Queen (2005) 224 CLR 300 at 308 [18]; [2005] HCA 81.
36. (1998) 197 CLR 250 at 262 [26].
37. See also O'Donoghue (1988) 34 A Crim R 397 at 401 per Hunt J.

Although this language picks up errors of law and thus tends to overlap with the second limb,[38] the focus of the first limb is on the verdict and the evidence available to support it. That point aside, the joint reasons appeared to accept the constrained approach identified at [10] (by use of the words “only if”) subject to the qualification that “in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced”. [39] The joint reasons then said that “[t]he third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial.”[40] The reference for the last proposition to the judgment in Weiss v The Queen [41] indicates that the Court had in mind those cases where, for example because of a denial of procedural fairness at trial, the Court should not dismiss the appeal although persuaded that the evidence proved the guilt of the accused beyond reasonable doubt.
38. Filippou at [13].
39. Filippou at [12], adopting and adapting a passage from M v The Queen (1994) 181 CLR 487 at 494.
40. Filippou at [14].
41. Weiss at [45].
There may be cases in which it can be said, by reference to the reasoning of the trial judge, that some important element of the defence case has been overlooked and not determined. Otherwise, it would appear that complaints as to specific findings of fact and a failure to consider specific evidence should generally be addressed within the terms of the first limb.
The Court in Filippou, consistently with statements in Fleming, rejected the suggestion that s 6(1) conferred an appeal “by way of rehearing”. [42] However, this language leaves open two questions, namely the scope of an appeal with respect to (a) intermediate findings of fact and (b) the reasoning process adopted by the trial judge in reaching the ultimate finding as to guilt. Clearly the approach to a judgment (which is required to include reasons and findings of intermediate fact) cannot be equated with the approach to a jury verdict (which is opaque in both respects).
42. Filippou at [48]; see also Fleming at [18], referring to R v O’Donoghue (1988) 34 A Crim R 397 at 401, and Fleming at [26].
So far as the first limb of s 6(1) is concerned, it would be open to an appellant to establish that an intermediate finding of fact which was essential to the chain of reasoning leading to the ultimate finding of guilt, could be reviewed on the basis that it was unreasonable and not supported by the evidence. Thus, although the focus remains squarely on the verdict, the fact that the process of reasoning is revealed will allow greater opportunities for appellate challenge.
A challenge to the process of reasoning may, in some cases, constitute a challenge to the adequacy of the reasons as found in the judgment, and thus a possible breach of s 133(2) of the Criminal Procedure Act. That in turn may be seen to invoke either the second or third limb of s 6(1) of the Criminal Appeal Act.
Some further guidance in this regard is to be found in the separate judgment of Gageler J in Filippou. With respect to the first limb, he stated at [83]:

“Irrespective of whether it is applied in an appeal against conviction following a jury trial or in an appeal against conviction following a trial by judge alone, the question under the first limb is always whether the ultimate finding of guilt was one which was open to the tribunal of fact on the whole of the evidence. In some cases of an appeal against a conviction following a trial by judge alone, consideration of the first limb will require the Court of Criminal Appeal to review for itself the totality of the evidence so as to form its own assessment of whether or not it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty without any regard to the reasons for judgment of the trial judge given in compliance with s 133(2). In a case where the argument in the appeal against conviction is that there are particular reasons why it was not open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty, it may be open to the Court of Criminal Appeal to discharge its appellate function under the first limb by reviewing the evidence and forming its own independent assessment of that evidence to the extent necessary to engage with that argument while adopting, without need for independent assessment, other intermediate findings of fact of the trial judge about which no complaint is made in the appeal. But having adopted the intermediate findings of fact of the trial judge about which no complaint is made, and having arrived at its own conclusion on the evidence to the extent necessary to engage with the particular argument, the question for the Court of Criminal Appeal in such a case will remain whether or not the Court of Criminal Appeal has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the trial judge's advantage in seeing and hearing the evidence.”

In dealing with the third limb, Gageler J stated:[43]

“There is no reason in principle why an error of fact in arriving at an intermediate finding of fact, which is disclosed by the reasons for judgment of the trial judge, should not be characterised as a miscarriage of justice if that error might reasonably have affected the ultimate finding of guilt.”
43. Filippou at [85].

By reference to Simic v The Queen [44] Gageler J adopted a positive principle reflecting the last statement, namely that unless the error involved a misstatement of an important matter of fact, resulting in the accused losing a real opportunity of acquittal, thus giving rise to a substantial miscarriage of justice, the third limb would not be engaged. [45]
44. (1980) 144 CLR 319 at 326 and 332.
45. Filippou at [86].
Gageler J then addressed the manner in which the reasons for judgment might be considered:[46]

“Where, in an appeal against conviction following a trial by judge alone, it is argued that the reasons for judgment of the trial judge disclose an error of fact in the way in which the trial judge reasoned from the evidence to make an intermediate finding of fact on which the trial judge relied in arriving at the ultimate finding of guilt, I cannot see how the appellant can discharge the onus of establishing a miscarriage of justice under the third limb unless the appellant can persuade the Court of Criminal Appeal of two things. The first is that the trial judge did make that error of fact in arriving at an intermediate finding of fact. The second is that, having regard to the gravity of the error of fact and the strength of the case against the appellant, it was reasonably possible that the trial judge might not have arrived at the ultimate finding of guilt if the trial judge had not made that error.”
46. Filippou at [87].

The structure of the applicant’s submissions demonstrated the difficulties he faced in an appeal subject to the constraints identified above. In the trial, the defence focused on the evidence of Carole Wright and of her daughter, Donna Wright, in order to demonstrate that they, contrary to their denials, must have known at all relevant times that the applicant was taking money from the cash available in the hotel in the manner described above. Part of that case was that the money was not taken by the applicant personally, but was set aside and delivered by courier to Carole Wright each week, to be disbursed at her direction. Further, much was sought to be made of Carole Wright’s close involvement in the affairs of the hotel, in her role as bookkeeper and the unlikelihood that she failed to notice the discrepancies in the accounts. The submissions quoted extensively from the cross-examination of Carole Wright (and Donna Wright); they did not address the manner in which the trial judge had dealt with the evidence, nor the critical fact that the ultimate determination turned, in fundamental respects, on findings of credibility, primarily in respect of Carole Wright and the applicant himself. For reasons which will be explained below, the ultimate finding was undoubtedly open to the trial judge and, absent any good reason to doubt his assessment of the credibility of the witnesses, this Court should not entertain a relevant doubt as to the guilt of the applicant in respect of both counts.

(b) the bonus scheme

The existence of a bonus scheme was central to the case for the applicant, as it would have provided authority for taking the money which formed the basis of the charges. It was therefore necessary for the prosecution to demonstrate beyond reasonable doubt that no such scheme existed. Thus, although, technically, it was not the ultimate finding made by the trial judge, in a practical sense, it was determinative of the ultimate finding.
The ground of appeal did not complain about the reasoning of the trial judge with respect to that finding, but rather attacked the underlying finding of fact which was that the letter which purported to set out the bonus scheme was not, as the applicant put it, composed or authored by Carole Wright. That conclusion required acceptance of the evidence of Carole Wright, rejection of the evidence of the applicant, and an assessment of the inherent implausibility of the letter, judged by its content and context.
In assessing the applicant’s submissions, it is necessary to bear in mind certain aspects of the course of the trial. In opening the case for the prosecution, an explanation was given as to how the takings were made. The prosecutor first called witnesses who were able to explain the examining and analysis of the daily trading sheets, bank statements and other records held by the hotel. That evidence continued throughout day 1 and for much of day 2. The prosecution then called Carole Wright who gave evidence-in-chief up to the point at which objection was taken to the admissibility of the deed and related documents. A voir dire was then held, in the course of which Ms Wright was cross-examined. Her cross-examination continued for much of day 3, although it was not completed on that day. Other witnesses, including the investigators, Gerondis and Johnson and the co-owner, Graham Standen, were called on day 4, being 10 November 2015. Their evidence, partly given on a voir dire, included the admissions made by the applicant on 13 February 2012. The other significant aspect of the course of the evidence was that, in the course of her cross-examination on day 2, Ms Wright was shown a copy of the letter dated 28 September 2009, apparently signed by her and dealing with the alleged bonus system.
On 10 November 2015 the applicant made a number of admissions, pursuant to s 184 of the Evidence Act. The document included the following statements:

“2.   That, during the period of 6 September 2009 to 13 February 2012, the accused was in receipt of moneys from the takings of the hotel in excess of his salary (‘the additional moneys’). The accused maintains that he had a lawful right to receipt of those additional [moneys].
3.   That, during the period of 6 September 2009 to 13 February 2012, the accused completed, or caused to be completed, ‘daily trading sheets’ which set out in [sic] the hotel’s takings from bar takings and poker machines. In the majority of cases the figures and calculations on the daily trading sheets are in the handwriting of the accused. In most other cases where the accused’s handwriting does not appear on the trading sheets the relevant entries were made by other persons acting on the accused’s instructions.
4.   The accused applied the additional moneys to, inter alia, reducing his indebtedness on a home loan and to various items of personal expenditure.”

The admissions meant that the primary issue in the case was no longer an accounting for the discrepancies in the records and the unexplained wealth of the applicant, but rather whether the moneys taken were taken with authority. (There was no issue as to the amounts which were the subject of the counts.)
The source of that authority was said to be the letter of 28 September 2009 (Ex 10), together with an email purportedly from Carole Wright to the applicant dated 22 March 2010 (Ex 11) stating:

“I would ask you show your usual discretion with your bonus structure. I would ask that you speak with me first before discussing anything with Graham.”

Carole Wright gave evidence that she did not have a computer nor an email address before 16 June 2010. [47] There was independent corroboration of both facts, to which the defence had no specific response. The trial judge assessed the response of Carole Wright when she was shown the letter of 28 September 2009 in the following terms: [48]

“When Carol [49] was giving evidence she was shown a copy of this letter, she looked at it, as I understand it was her signature, she agreed therefore it was [her] letter. She then read it and appeared to be mystified as to the contents of the letter.
There is a period of cross-examination where she throws doubt on the letter and in particular on a scale or size of the bonus payments, indicate that the hotel could not have offered, not afforded to pay the accused the bonus payments set out in the letter. She denied writing the letter, she appointed [pointed out?] that she did not have a computer at the time, she said that if she needed a letter sent, she would get her daughter Donna, to type it out on Donna’s computer.
There was a break in the evidence and she took that opportunity to check her records and anything she may had [that may have?] shown she had sent this letter. Evidence in due course revealed it was not on Donna’s computer and [Carole] did not have a computer at that time. [Carole] disputed that she had sent that letter.”
47.    Judgment, pp 29-30.
48.    Judgment, pp 30-31.
49.    Mrs Wright is consistently identified as “Carol” in the transcript of the oral judgement; her first name was “Carole”. It is clear, in a number of respects, that the transcript was not corrected.

The judge then made a number of points about the content of the letter. In brief,

the offer could have resulted in an extremely high weekly bonus payment to the accused; [50]
50.    Judgment, p 31.

Mrs Wright gave evidence that the amounts were ridiculous and could not be afforded by the hotel which was struggling to stay afloat; [51]
51.    Judgment, p 31.

the bonus was not to be paid on a percentage of net profit but on the gross turnover from the poker machines, which was not what one might expect; [52]

because the accused started on 6 September, weekly turnover would have been available for only three weeks, the third being completed on 28 September being the day the letter was drawn up; [53]

the letter of employment indicated that a bonus system would be put in place after three months employment; [54]

there was an increase in turnover in the first week, a drop in the second week and a more significant drop in the third week; [55] and

it was purportedly authorised only by Mrs Wright and not on the basis of consultation with the other owners, unlike the letter of employment. [56]
52.    Judgment, p 32.
53.    Judgment, p 32.
54.    Judgment, p 32.
55.    Judgment, p 33.
56.    Judgment, p 33.

On the basis of those factors, the judge stated that he had “great difficulty accepting this as a genuine letter or a genuine offer”. [57] The judge also considered the evidence given by the applicant in relation to the letter and email and revisited his “impression” as to Mrs Wright’s response when she was first shown the letter in the witness box. [58] He compared the letter with the offer of employment (Ex 9) which was signed by three of the owners. The judge stated: [59]

“I have concluded I have no doubt that Carol did not compose or write the letter, exhibits 10 or 11. Those letters are arranged to be available for the Court in an attempt to support his evidence that the unexplained deposits in his bank account, at least to a large degree, came from the bonus system and we did not have the original which the accused said would have been sent to him at the time.”
57.    Judgment, p 33.
58.    Judgment, p 36.
59.    Judgment, p 36.

Ground 4 alleged, amongst other things, that the judge failed to “consider” the evidence of Carole Wright in proper detail, particularly the inconsistencies and credit issues arising from her evidence. However, that was simply not so: the judge explained in more than sufficient detail the challenges taken to her evidence and her credibility by counsel for the applicant and expressly acknowledged that the case for the applicant required “a careful consideration of the evidence of [Carole] Wright and other witnesses and careful consideration of the accused and his witnesses’ evidence.” [60] That consideration was not cursory: further, no submissions were put in support of ground 4 other than those set out in consideration of the other grounds. To the extent that submissions in support of ground 3 took issue with the findings that (a) the bonus proposed in the letter was calculated on a “totally unrealistic basis”, (b) no such bonus scheme existed and (c) the appellant’s evidence could not be accepted, they did little more than quibble with aspects of the judge’s reasoning. The proposition that the findings made by the judge were not reasonably open lacked substance.
60. Judgment, p 43.

On the basis that the first limb of s 6(1) requires the Court to consider the evidence upon which the findings are based, there was evidence to support each of the matters identified above, assuming that they could themselves be described as findings. Indeed, there were other aspects of the evidence, as the respondent has pointed out, which were supportive of those findings. For example:

Donna Wright, on a search of her hard drive, found a copy of the letter of employment, but not the bonus letter; [61]
61.    Tcpt, pp 677-679 and Ex U.

Donna Wright’s search was replicated by a police forensic expert with the same results; [62]

the bonus letter was not disclosed in the applicant’s affidavit of discovery in the civil proceedings with the owner of the hotel (in April 2013); [63]

the evidence given by the applicant as to discrepancies revealed by the daily trading sheets for 9, 11 and 12 September 2009 (that is, before the letter of 28 September) were patently implausible; [64]

despite the email (Ex 11) which might have explained why Mr Standen and Ms Ashton did not know of the arrangement, the applicant said that he had spoken to Mr Standen “afterwards”, so as not to be “complicit in cheating one of the other directors”, [65] but in terms which were inconsistent with the conversation he recounted with Mr Standen on the day his employment terminated, namely “it was never my intention for you not to be aware of the situation if you are saying you weren’t aware”, [66] and

the difficulty in matching the amounts properly calculated by reference to the bonus payment scheme set out in the letter with the amounts deposited by the applicant in his bank account.
62.    Senior Constable Wong (Ex Y).
63.    Exhibit X.
64.    Tcpt, pp 823-825.
65.    Tcpt, p 811.
66.    Tcpt, p 759.

The other two matters relied upon by the applicant were (a) the blatant nature of the entries on the daily trading sheets and (b) evidence of an offer to purchase the hotel at a price which was not consistent with the profits revealed by the hotel’s accounts. Although each of these matters may be relevant to questions of credit and relevant to other matters, these elements in the defence case were not directly related to the bonus system set out in the letter of 28 September 2009. In other words, it was possible that the applicant had some kind of express or implied authority to take the moneys, even though the letter itself was an ex post facto fabrication on his part. Further, the other two matters depended less on his credibility than on an assessment of the records and the evidence of other persons, including Carole Wright.

(c) patent discrepancies

Whether the discrepancies were patent or not depended on who was looking at the records and for what purposes. However, the applicant’s case went further than simply stating that the discrepancies were patent; he also claimed that the additional moneys were included with the records and sent in the “duffle bag” to Carole Wright every Monday. The trial judge stated that, on the applicant’s evidence, Mrs Wright “directed him how to record the daily takings and where the money which was left over from the poker machine jackpots and the ATM were to be put aside, the ATM money has been inflated, the additional amounts taken out in cash and that the accused acting on her instructions did that each Monday and sent the cash money to [Carole].” [67] In short, Mrs Wright was not merely complicit in the scheme by which large sums of cash were removed from the takings and not accounted for, but was the instigator and administrator of the scheme. Of course, the trial judge did not need to be affirmatively satisfied as to the correctness of each element of the applicant’s claims, but rejection of significant parts of his claims would have seriously affected his credibility and the ability of his evidence to raise a reasonable doubt as to the prosecution case.
67. Judgment, p 43.
The trial judge rejected the applicant’s evidence in relation to these issues. As he said, there were “many reasons” why he rejected the evidence, some of them being set out at pp 45-46. The judge had earlier summarised both the evidence and the submissions of counsel for the applicant, Mr McLachlan. [68]
68. Judgment, pp 39-41.
It was undoubtedly open to the trial judge to accept the evidence of both Carole and Donna Wright in relation to their respective activities. Donna Wright became involved in the operation of the hotel some 10 years before the applicant commenced to work there, her partner, Richard Hayes, having bought a 10% share in the hotel. Donna Wright did not visit the hotel, but received the daily trading sheets and other accounting documents from her mother, Carole Wright, and entered the relevant data onto an MYOB account on her computer. She took what she understood to be the relevant figures relating to the poker machines and the amounts used to replenish the ATM from the daily trading sheets. [69]
69. Tcp0t, pp 472-474.
Donna Wright was cross-examined at some length in an attempt to establish that she had access to all of the information which was necessary to determine that there were large discrepancies in the amounts recorded on the daily trading sheets. In particular, Ms Wright was taken to a daily trading sheet for 18 April 2010 which contained an item of $50 as the amount banked in respect of the ATM. (18 April was a Sunday.) The bank account for 20 April 2010 showed a credit of $4,300. Although the email was not tendered because Ms Wright was not able to be sure that it was hers, she accepted, on looking at the document, that she appeared to have raised the discrepancy with the applicant. The significance of the evidence was that rather than simply entering figures off the daily trading sheet onto her computer, she had sought to reconcile the figure with the hotel’s bank statements and had found a discrepancy. Her evidence was that she could not recall how that came about and had no recollection of raising an issue with the applicant. However, she did recall a time when the ATM was broken and speculated that the query could have arisen at that time. She did not accept that she otherwise reconciled the ATM details with the daily trading sheets, or undertook a bank statement reconciliation.
Donna Wright was also cross-examined about her knowledge of “B money”, which involved cash from the bottle shop takings which was not declared. There was evidence confirming that such amounts were sent in an envelope to Carole Wright; the evidence did not support the proposition that any amounts, let alone the large sums extracted from the poker machine and ATM accounts, were included in the B money. Donna Wright denied that she saw any such amounts in the duffle bag.
In his summary of the evidence, the judge referred to Donna Wright’s evidence, but without referring to the one discrepancy identified in April 2010. [70] He referred to her evidence with respect to the absence of cash in the duffle bag. [71] The submission made by the applicant was that “Donna Wright was doing more than simply entering gaming revenue figures from a DTS when she was preparing spread sheets.” [72] Much was sought to be made of the single discrepancy, five years before the trial, involving a query raised by Ms Wright indicating she had identified an understatement in the daily trading sheet. It was then submitted that, despite her express denials, she must have been aware of the 135 discrepancies, which were overstatements.
70.    Judgment, pp 16-17.
71.    Judgment, p 47.
72.    Written submissions, par 83.
The single query, together with her explanation that she had possibly noted the discrepancy because there had been an occasion when the ATM had broken down, was not a matter of obvious significance. As the prosecutor submitted, albeit in relation to the alleged knowledge of discrepancies on the part of Carole Wright, even if the judge had a reasonable doubt as to the correctness of her denials with respect to discrepancies, that did not establish that the applicant had authority to take the money. [73] Counsel for the applicant accepted that it was “as much as anything … a reasoning process.” [74] He then submitted:

“The matters that I was addressing you on thus far [were?] about whether or not one or more of the owners were aware of the discrepancies. The next matter I would seek to raise is what [can?] be said to be the flow on issue, or the matter that would follow is whether or not one or more of the owners were receiving the cash that is the subject of the alleged discrepancies as distinct from this bottle shop cash, and again I say that’s highly relevant in terms of what they knew and what they’d authorised.”
73. Tcpt, pp 1073-1074.
74. Tcpt, p 1074.

The judge understood that submission. In summarising the submissions of counsel for the applicant, the judge stated: [75]

“He submitted that the Court could take into account that the owners had said that they were not aware at all of the discrepancies but that was inconsistent with the Crown case and that there were a large number of discrepancies which went on for some time, that [Carole] and Donna had the daily trading sheets and it would have been quite obvious to them that there were discrepancies.
…
He submitted that they could not have missed the ATM discrepancies over a long period of time because they were obvious. They are noted as [red] entries on a daily trading sheet. He pointed out that the evidence of the defence witnesses supported large amounts of money being placed in a duffle bag.”
75. Judgment, p 40.

In the context of the trial, the evidence of Donna Wright was only indirectly relevant. To the extent that she denied seeing money in the duffle bag (other than the envelope of bottle sales cash) her evidence directly supported that of her mother and contradicted the defence case. However, her knowledge of discrepancies in the accounts, unless conveyed to Carole Wright, gave no support to the proposition that the applicant may have had authority to take the money. If the cross-examination had indeed provided a basis for a conclusion that Donna Wright was conscious of the discrepancies and understood their significance, it would have been necessary to put a further line of questions as to whether she discussed the matter with Carole Wright. That territory was not explored, possibly because counsel did not think that he had any relevant admission.
Although it is correct to say that the trial judge did not expressly address the one instance in which there was evidence of Donna Wright raising an issue about a discrepancy with the applicant, the evidence had minor significance in the context of the issues exposed at the trial. There can be no criticism of the judge failing to deal with the specific attack on Donna Wright’s credit; nor did the evidence elicited in cross-examination provide a basis, either in isolation, or taken in the context of other evidence, to establish a reasonable doubt as to the guilt of the applicant.
The challenge to Carole Wright’s knowledge of the discrepancies was potentially far more telling. Had she, as an owner, been aware of the removal of large sums of money from the takings at the hotel, even if the case based on express authority were not accepted, there would have been evidence capable of raising a reasonable doubt that the applicant may have been acting with implied authority.
The trial judge well understood that the case presented by the applicant was that Carole Wright was not to be accepted in her denials (a) that she had instructed the applicant to remove money from the tills and put the money in the duffle bag every Monday to be couriered to her, (b) that she had instructed him as to how to fill in the daily trading sheets, (c) that she had then returned part of the money to him as a bonus, (d) that she had taken those steps without the knowledge of her co-owners (including her daughter’s partner, Richard Hayes). The trial judge accepted that, even without the defence evidence, unless he accepted Carole Wright’s evidence, the prosecution must fail. [76]
76. Judgment, p 43.
If the judge had accepted evidence from the defence witnesses to the effect that large sums of money were sent to Carole Wright in the duffle bag, there would have been an independent basis for rejecting Carole Wright’s evidence, both that no money was transferred in that way and that she was not aware of the discrepancies in the daily trading sheets. However, the judge rejected the evidence of the defence witnesses (other than the accused, which he dealt with separately) for various reasons, both based on their credibility and on their limited roles in the running of the hotel. There is no challenge to the rejection of that evidence.
The trial judge saw the submission that he should reject Carole Wright’s emphatic denials of the defence case with respect to the records as involving a number of inherently implausible steps. He stated: [77]

“One, the hotel was struggling financially but able to keep going. If [Carole] did what was alleged[,] meant that the hotel was not viable to the extent that she had to take steps to sell her share in the hotel[,] does not make sense. The second part is that the reading of the various emails would show that she was perplexed as to why not sufficient moneys to pay hotel accounts were available.
If she was taking the money as he said then she would have known why insufficient funds were not [sic] available is because she had taken them. I cannot see any document which would indicate that she knew why the hotel had difficulty with its cashflow. Nor is there any evidence which would indicate to me that she was in receipt of large sums of money. The evidence, in effect, seems to be to the contrary. The evidence would indicate to me that not only was she shocked when she found out that the money was being taken by the accused but also her co-owners were equally surprised and shocked. If she had been taking the money why would she take an active part in having the books investigated, calling in a private investigator and that surely would put her position at significant risk [–] that is[,] once the deficit was discovered it would be obvious that it would point to the person taking the money, ….”
77. Judgment, pp 45-46.

There is no doubt that her evidence constituted an unequivocal rejection of the claims made against her in cross-examination. However, some of the questions were somewhat double-edged. For example, she was asked, and agreed, that as at 8 January 2010 the hotel finances were looking sick. [78] So much was expressly stated in an email from Carole Wright to her co-directors, Mr Standen and Ms Ashton. [79] She explained that the hotel was already paying off numerous bad debts by instalments. Her attention was also drawn to another statement in the letter:

“I am asking for your understanding. I can’t commit to any more expense. Without Adam, I would hate to think where we stand. Now is not good but we would have been out-the door.”
78. Tcpt, p 178(12).
79. Ex 14.

It was suggested to her that she had stated in evidence that the financial deterioration occurred about six months after the applicant had commenced employment; she was asked whether the two statements were not contradictory. When she was allowed to answer she said: [80]

“I concede it sounds contradictory but we had financial problems the whole time Taylor was on board but I didn’t think for one minute that Taylor was taking any money from us ever. I never thought that.”
80. Tcpt p 178(45).

The descriptions given by Carole Wright and Donna Wright of their functions provided a reasonable basis for concluding that their denials of noticing the discrepancies in the daily trading sheets were plausible. The other steps taken by Carole Wright in the management of the hotel, including her exchanges with her co-owners about expenses and about the proposed sale of the hotel were either totally unscrupulous and disingenuous, or else provided strong support for her asserted lack of awareness of the discrepancies. Ultimately her credibility turned on an evaluative judgment. Subject to two further factors, acceptance of her evidence was not only open to the trial judge, but could not be faulted.

(d) the bottle shop cash

The first of the two remaining matters concerned evidence as to cash taken from the bottle shop. With the protection of a certificate under s 128 of the Evidence Act granting immunity from prosecution, Mrs Wright gave evidence that she took $660 on a weekly basis from the bottle shop revenue; that a similar amount was taken by the other directors and principal shareholders (Ms Ashton and Mr Standen) jointly and $115 per week by the fourth shareholder, Richard Hayes. [81] Mr Standen denied knowledge of the arrangement, [82] but Ms Ashton, having been granted a s 128 certificate agreed that she took $660 on a weekly basis from the bottle shop before the applicant’s employment. Later she obtained the cash by direct transfer. She further gave evidence that her husband would take cash but would leave an IOU. She did not accept that any amount in excess of the regular $660 per week payments was collected during the applicant’s employment. [83] (That was the last evidence given in the prosecution case.)
81.    Tcpt, pp 125-126.
82.    Tcpt, pp 296-297.
83.    Tcpt, pp 722-725.
Carole Wright had given evidence that was internally inconsistent in relation to the bottle shop money and the use of cash for the payment of wages for overtime. It is not necessary to set out the inconsistencies: as the applicant conceded, the bottle shop money “was a relatively minimal amount.” [84]
84. Applicant’s written submissions, par 141.
The judge noted an issue as to the accuracy of Carole Wright’s evidence. [85] He said that “the accused had suggested to her that they take cash money out of the bottle shop till to pay for his overtime which was to be paid in cash and to allow the owners to take cash and that was quite common in the industry.” The judge accepted that “over a period of 11 months the accused was paid overtime in cash and that other cash moneys were taken out of the hotel takings and paid to the owners.” He considered that some of the evidence was mistaken, particularly in relation to the times at which such arrangements were on foot. However, accepting that money was taken from the bottle shop till and was not declared in the accounts of the hotel or the recipients, while casting doubt on the reliability and credibility of each of the owners in different respects, that factor was discounted by the trial judge in his assessment of Carole Wright’s evidence on the key issue in the case. That was very much a matter for the trial judge in his assessment of the witness; that factor provided no basis for doubting evidence directly relevant to the authority of the applicant to take large sums of moneys as alleged in the charge.
85. Judgment, pp 48-49.

(e) sale proposal for hotel

The final basis upon which the defence sought to raise a reasonable doubt as to Carole Wright’s denials of knowledge of the takings depended upon the evidence of Messrs Levy and Sanchez who were friends of the applicant. Mr Levy gave evidence that, despite the reported profit for the 2010 financial year being around $300,000, they had been told by Carole Wright that some $600,000 was “coming out of the business in cash and alcohol.” [86] Mr Sanchez claimed he had been told that the current owners were taking “a fair bit of cash out of the business”, that an amount was mentioned “in the order of $300 or $400,000” and a fair amount of liquor stock.
86. Tcpt, p 923(30).
The significance of discussions with respect to the sale of the property were explored in some detail in the course of final submissions. The evidence was deployed in the following way. First, there was evidence to support the proposition that the value of a hotel was calculated as ten times the annual profit. Secondly, there was evidence that, on 8 July 2010, the owners had received an offer based on a gross sale price of $10.5 million. That implied annual profit of $1 million. Thirdly, it was clear that the declared annual profit was nothing like that figure, being approximately $300,000. Accordingly, it may be inferred that the offerors believed that an amount in the order of $700,000 had been taken but not accounted for. The appellant called the two principals of the offeror to give evidence that, at a meeting with the owners, Carole Wright had told them that certain amounts were disbursed and not accounted for in the hotel records.

His Honour then gave further reasons for concluding that the bonus letter was a fabrication, before turning to outline the Crown case and that advanced for the defence. His Honour then returned to the onus which fell on the Crown, concluding that it had been met.
His Honour then said (at p 43), somewhat curiously, that “[w]ithout the evidence of the applicant and his witnesses, I would have been satisfied that the ingredients of the charges providing I accepted the evidence of Carol Wright and the other main Crown witnesses”. He also noted that Mrs Wright and several of the Crown’s witnesses’ evidence was challenged by evidence given by the applicant which, if accepted, would lead to the conclusion that he was not guilty.
His Honour then noted that careful consideration thus had to be given to their evidence. He then referred to what he described to be “background evidence”, which he accepted, as to the terms of the applicant’s employment; that before he was employed the Hotel at times struggled financially, but was able to meet its commitments; that there was a problem with cash flow; that the Hotel was for sale; that Mr Johnson had identified the sums taken out of the Hotel not being recorded in its takings; and that it was Mrs Wright who did the bookkeeping, assisted by her daughter and by her son, in relation to preparation of wages.
On the issue of “whether the accused took out cash from the hotel takings at the direction of Carol and/or other owners and paid it to Carol”, his Honour concluded that the applicant’s evidence could not be accepted “in relation to this issue” (at pp 44 – 45).
His Honour then referred to evidence, including certain evidence which corroborated that given by the applicant and contradicted that given by Mrs Wright, in relation to the “B” cash. His Honour rejected the evidence of other employees called in the defence case, on the basis that they were not “impressive witnesses”. The basis for those conclusions was not otherwise explained as it had to be, as was also explained in Beale at 440.
This was not a case like that dealt with in W v R [2014] NSWCCA 110 at [148], which could be decided by considering the evidence of Mrs Wright, the evidence of the other witnesses, including the applicant, the inconsistencies in the evidence and after taking the applicant’s submissions into account, simply accepting Mrs Wright as reliable as to the occurrence of the events the subject of the charges on which the applicant was convicted. The contradictions between the evidence of the applicant, Mrs Wright and the other witnesses and the cases which the parties advanced in relation to those contradictions were simply too complex, to permit that approach to be open.
His Honour concluded that the evidence given by the applicant about the bonus had been invented, to explain the cash he had taken. His Honour then said (at p 49) as to the “B” cash that “I am not sure how important an issue this is because we know that over a period of 11 months the accused was paid overtime in cash and that other cash moneys were taken out of the hotel takings and paid to the owners”, which he found was corroborated by a document in evidence.
Even despite this and other evidence to which his Honour referred, which also contradicted parts of Mrs Wright’s evidence, his Honour concluded that “I have not[sic] reason for not accepting Carol’s evidence”. In the result the applicant was convicted.
It is this part of his Honour’s judgment which I consider puts beyond question the errors into which his Honour fell.

The evidence

If the evidence as to the admissions which, on the prosecution case, the applicant had made to Mr Johnson and Mr Gerondis was accepted, the applicant had not been authorised to take money from what was skimmed from the ATMs. That would have supported his conviction of the offence involving the ATM moneys, but not the offence involving the poker machine money which, he claimed Mrs Wright knew about.
Further, the deed established that the directors were prepared to accept repayment of only $275,000, in return for which they agreed not to go to the police. On that evidence alone, the applicant could not have been convicted of the offence involving the poker machine money. That evidence thus had to be considered in light of the other relevant evidence in relation to the poker machine money.
His Honour accepted Mrs Wright’s evidence, even though there was considerable evidence to which his Honour did not refer, which raised doubts as to the honesty and reliability of her evidence. That included the evidence of the directors as to the cash being taken out of the business, on Ms Ashton’s evidence, even before the applicant was employed. That was not only relevant to the resolution of the credibility of both the applicant and Mrs Wright, but also as to matters such as the source of the cash which was used to pay the applicant’s overtime and whether some or all of the other cash which he received, had been authorised.
There was also evidence of strain between the directors during the applicant’s employment, concerns about its financial performance and a desire to sell the Hotel on terms which would support the directors in retirement.
Why his Honour came to conclude that Mrs Wright’s evidence should be accepted, even when other evidence - particularly that given by other prosecution witnesses, including other directors and members of Mrs Wright’s own family, contradicted her evidence - was not, however, explained. In so far as his Honour did not refer to that evidence, it may be inferred that it was not considered (see Beale at 443).
Contrary to Mrs Wright’s evidence-in-chief, in addition to the disclosed $300,000 profits, Ms Ashton’s evidence was that very considerable undisclosed cash was being taken out of the business each week, even before the applicant was employed. That was not disclosed to police and thus did not apparently become the subject of police investigation. Nor did the prosecution seek to establish the extent of what was being taken during the applicant’s employment, even from the bottle shop sales, which Mrs Wright only disclosed in her cross-examination, after she was given a s 128 certificate.
The applicant’s evidence, to entirely contrary effect, was corroborated in various respects by other evidence called in the prosecution case, as well as finally, by part of Mrs Wright’s evidence.
The prosecution case was, nevertheless, directed to establishing that the applicant deposited the cash into his accounts, without his employer’s authority or knowledge.
In cross-examination, Mrs Wright denied that she knew the extent of all of the cash being taken out of the business each week, or that the money being skimmed from the poker machines and ATMs was sent to her by the applicant by courier each Monday, together with the trading records maintained in accordance with systems established even before the applicant was employed, as was his evidence. She also denied that he was authorised to receive any of the cash which he deposited into his own accounts.
Mrs Wright then said that what was intended was that no more than two days’ takings from bottle shop sales was to be taken in cash and that as well as the overtime paid to the applicant, she was to receive $660 per week, as were Mr Standen and Ms Ashton together, and Mr Hayes was to receive $115. That amount of cash for the shareholders alone would have amounted to $74,620 per annum.
Mrs Wright’s evidence was further, that it was the applicant who had suggested to her that undeclared cash could be so taken, in order that he could be paid for the overtime he was working; and that she had consulted the other two directors, who had then agreed to implement that scheme. On her evidence, the only cash the applicant was entitled to receive was what he had been paid for his 15 hours overtime per week, at $30 per hour, $450 per week. Exhibit C comprised documents he had signed acknowledging some of the payments he claimed he had received.
In cross-examination, Mrs Wright also agreed that other employees were paid in cash and that she was being paid consultancy fees of $3,200 per fortnight and $3,200 was shared by Mr Standen and Ms Ashton. She denied, however, that she was being sent $10,000 cash per week. Mrs Wright also agreed that in January 2011 she had a concern about the amount of alcohol which Mr Standen was then taking out of the business, about which she wanted to set new ground rules.
Other evidence, including that given by Ms Ashton and Mr Standen was to very different effect. How all of that evidence left open the conclusion that there was no reason for not accepting Mrs Wright’s evidence, as his Honour concluded, is not apparent and was not explained.
In resolving the conflict in the evidence between the applicant and Mrs Wright, consideration also had to be given to their respective roles and background. This was the first time that the applicant had held the position of licensee of a hotel. By way of contrast, Mrs Wright and the other directors were very experienced hoteliers.
Mrs Wright was referred to as the Hotel’s “book-keeper”, but on her own evidence and that of Mr Standen, her responsibilities were considerably greater than that description suggested. She was the director in charge of the financial operation of the Hotel, which operated in the highly regulated industry which she described in her evidence. As she explained in her evidence-in-chief, she oversaw the accounts, organised payments and ensured the Hotel’s finances were in shape, by managing overdrafts and receipts, to ensure that the company could make, for example, quarterly payments in relation to duty tax on its poker machines, which amounted to up to $220,000.
Mr Standen had been the Hotel’s licensee for some years before the applicant’s predecessor had been engaged, he having worked in the industry for some 45 years. Together the three directors recruited the applicant and Mrs Wright negotiated his package.
It was Mr Standen and Mrs Wright who instructed the applicant in the operation of the business and the systems under which it was operated. Mrs Wright denied, however, that she had directed the applicant to take cash from the ATM or poker machine takings. She also denied that on the checking undertaken of the records which she received each week from the applicant, about which there was no dispute and which on later investigation disclosed both the amounts which had been skimmed from the ATM and poker machine takings, neither she nor her daughter Ms Donna Wright, who assisted her, had ever identified the cash that was being taken. Obvious questions arose as to the truth of that evidence, given what the records disclosed and the evidence Mr Standen gave.
Ms Donna Wright’s evidence-in-chief was that initially during the applicant’s employment, the bag sent to her mother each Monday contained various documents and wine, but no cash. This changed when her mother told her about the “B” money. In cross-examination, Ms Wright agreed that she had not referred to such cash in the statement which she had made to police. When pressed further, she conceded that she knew that over six or seven months about a thousand dollars per week was being sent to her mother, which she understood had something to do with the bottle shop till. She denied, however, that between $5,000 and $10,000 had ever been sent.
Mr Standen’s evidence was that before his retirement he was the licensee and Ms Ashton looked after the books. In cross-examination he said that during Mr Taylor’s employment, Mrs Wright had told him that they were losing $10,000 a week; that problems beforehand had been minor; that they had got desperate and the applicant had offered to buy 10% of their shares, because they had no money; that Mrs Wright had been very particular with her work; that he had nothing to do with payment of wages and bonuses and that Mrs Wright could have introduced a bonus structure for the applicant; that after his employment turnover went up, but profits disappeared; that he had found out from the applicant that illegal hours were being traded; and that he directed that the Hotel close on time, even though the applicant later told him that Mrs Wright did not want strict hours to be traded.
Mr Standen also said that he took alcohol from the Hotel, but the amount was recorded. He denied that any limit had been placed, or that he had taken any cash. He also denied telling prospective buyers that $500,000 to $600,000 cash was being taken out of the business. He said, however, that Ms Ashton could have picked up the discrepancies on the day sheets “straight away”, but that Mrs Wright had refused her help. When they first learned of the discrepancies, however, they did nothing from November 2011 until February 2012, when Mr Standen was referred to Mr Gerondis, who with Mr Johnson met to confront the applicant on 13 February 2012.
Earlier, Mr Hayes had met with the applicant to instruct him in how to do the figures. Mr Standen also said that Mrs Wright wouldn’t spend any money on the Hotel. After re-examination, it was his Honour who asked Mr Standen if he was aware of cash being sent to Mrs Wright, the applicant being paid overtime in cash, and $660 cash being paid to him. Mr Standen said that it was Ms Ashton who could verify that, because it was she who would have taken the cash, but he accepted that there could have been cash taken out, which was not recorded in the books.
The Crown also called Ms Nakwirot, who was employed as a duty manager at the Hotel. On her evidence the applicant instructed her to put the money left over every day from the jackpot amount into the safe, in the pencil case for the “B” money, which was for Mrs Wright. She also put the bottle shop money there, but that stopped after some months. Every Monday Ms Nakwirot found that money gone, and on some occasions, contrary to Mr Standen’s evidence, she paid the money to Mr Standen, when the applicant was not at the Hotel. The amounts in the bag varied, but she said that it was roughly $2,000. She understood “B” money to mean “Boss” money.
Mr Wright’s evidence was that he had been involved in the Hotel since 1998 and that Mr Standen and Ms Ashton had retired from their hands-on roles in 2000. In evidence-in-chief, when describing what was in the bag sent to his mother from the Hotel on Mondays, he made no mention of any cash. In cross-examination, however, in direct conflict with the evidence given by Mrs Wright and Ms Donna Wright, Mr Wright said that they used to put a bottle shop till for one day during the week, in an envelope in the bag, but that he was “pretty sure it stopped when Adam came”. He also confirmed that had occurred for a few years during the time Mr Abrahams had been the previous licensee and manager. He said that the amount was usually $500, which he had assumed the partners had split between them.
Mr Wright also said that he, too, had been paid in cash and that he also understood that “B” money referred to “black money”. He denied that there had been any financial problems before the applicant was employed, but agreed that the Hotel then had a loan of some $4 million for renovations which had been completed, including a new gaming room and that the number of poker machines had been increased to 21.
Detective Sergeant Pollock’s evidence was that it was in May 2013, that police were approached by Mr Standen, Ms Ashton, a Mr Marlow of the Marlow Hotel Management Group and Mr Meredith, and that Mrs Wright had not then been involved. During the investigation, it was Mrs Wright, however, who had provided him with various documents and that she and other witnesses had later made statements.
The Detective had never, however, sought any documents over and above those provided by Mrs Wright. It may be inferred from his evidence and that of other witnesses, that what was not disclosed to police by the directors was the tax fraud in which they and the applicant had been involved.
In Ms Ashton’s evidence-in-chief, she confirmed that she and Mr Standen were paid undeclared cash out of the Hotel’s takings, which they had decided to take “early in the piece”. She also received a s 128 certificate. Her evidence was that the amount was $660 per week, taken out of the bottle shop till, to make up money which they used for their living expenses. In cross-examination as to the time when these payments commenced, Ms Ashton said that she had received these payments even before the applicant was employed. It was usually she, not Mr Standen who went to the Hotel to collect that cash, although he also cash, for which he wrote an "i.o.u", which she later repaid. He also took alcohol.
It follows that there can be no question that aspects of the applicant’s evidence were supported by the evidence given by the other two directors, as well as that given by Mr Wright, who his Honour found to be a man of good character. Other evidence called in the defence case, also supported relevant aspects of his evidence.
The applicant’s brother Mr John Taylor gave evidence that while he worked at the Hotel as duty manager in 2011, every day he was putting money from the tills, the pokie and TAB earnings into the “B” envelope, which was sent to Mrs Wright weekly. This amounted to about $10,000. He also explained how he had been trained in these operations. In cross-examination he agreed, however, that this occurred only when he worked the day shift, a few times a month. He denied that he had fabricated his evidence to assist his brother.
Mr Justin Taylor, who also came to be employed as a manager at the hotel, working 80 per cent night shifts, also explained how he had placed cash into the “B” money pencil case every day shift. He identified the lowest amount to have been $150 per day and up to three times more on busy days and if a major jackpot went off, between $2,000 to $3,000. His evidence was that the bag was sent off in a taxi once a week and was empty again at the start of the week. Mr Justin Taylor was not cross-examined.
Mr Basnet, who was training to be a manager for the first four months of the applicant’s employment, before leaving to return overseas, gave evidence that he had heard Mrs Wright direct the applicant to “push” the trading hours and that he had sent a bag containing an envelope with cash and wine to Mrs Wright’s house on occasions when he worked a Monday day shift. He said that he had not looked inside the envelopes, which were of different sizes, but that he could feel the cash inside. In cross-examination he denied that his memory was faulty and said that he had not spoken to the applicant since his return from overseas some five weeks after she left the Hotel. He insisted that he had felt cash in the envelopes sent to Mrs Wright.
In his evidence, the applicant said that it was Mrs Wright who had showed him the various reports he had to provide her and that she had also explained how the poker machine money was to be sent to her in the “B” money envelope, together with the ATM money. All of that money was kept off the books and sent by courier to Mrs Wright each Monday, together with up to six bottles of wine. He instructed other duty managers in those operations, which resulted in amounts from $5,000 upwards to $10,000 being sent to Mrs Wright. Mr Standen was also taking alcohol from the Hotel, which at one point was capped at $1,000 per week.
In cross-examination the applicant explained that the Hotel came to trade outside its permitted trading hours, that being a proposal raised with him by the three directors, even before he was employed.
The applicant’s evidence was that Mrs Wright used the “B” money to pay the cash which the directors each received, as well as overtime and his bonus payments, which he agreed could be as high as $5,000 per week. He claimed that hard copy records of the cash in the form of excel spread sheets which he described and which he claimed to have also signed, were kept in the Hotel office and also sent in the bag which went to Mrs Wright and later returned to the Hotel.

There was, it appears, also no police investigation into this claim, but the applicant was cross-examined as to the unsuccessful attempts which on his evidence, had been made to obtain these records in the civil proceedings pursued against him by the company. The applicant denied fabricating this aspect of his evidence, or the letter and emails on which he relied to establish that payments made into his accounts had been authorised as overtime payments, reimbursement of expenses and bonus payments.
The applicant was cross-examined as to how the bonus system operated by reference initially to turnover targets, and once the targets had been surpassed, by a share of net profits. He conceded his awareness of the cheating of the tax system involved in these arrangements and that he had been prepared to trade outside the law, to help better the business for a quick sale. He also explained his understanding that his bonus arrangement was to be kept from Mr Standen.
In re-examination, the applicant also explained that the benefit to the shareholders, of keeping wages off the books, included that income tax did not need to be paid, nor payroll tax, workers compensation or superannuation.
The evidence certainly established that the cash which this business generated was very considerable. The Hotel was trading beyond its permitted trading hours. In some weeks it had declared turnover from poker machines alone, in excess of $700,000. On the prosecution case, however, it was generating profits of only some $300,000 per year. On the evidence of the undeclared cash taken from bottle shop sales alone, it cannot be doubted that this was a considerable understatement of the actual profits.
That this was so was supported by other evidence. Mr Levy was the CEO of Marvan Hotels, who confirmed that discussions had occurred before the termination of the applicant’s employment, for the purchase of the freehold going concern interest in the Hotel, for $10,500,000. The draft contract was in evidence. It disclosed profit of only $300,000. Mr Levy’s evidence was that he understood from what Mrs Wright had told them that additional cash takings and alcohol amounted to over $600,000. On the evidence the purchase price offered was consistent with actual revenue of some $1 million per annum.
Mr Levy’s evidence was that not only had he and his father-in-law, Mr Sanchez, and their solicitor met with the Mrs Wright, Mr Standen and their solicitor, Mr Wennerbom, they had also met with the applicant. He said they had been concerned to establish the true amount of the revenue and that the applicant would stay, if they purchased the Hotel. The offer they made was not unconditional and it was not accepted, even though on the evidence Mrs Wright was anxious to sell her share of the business.
Mr Sanchez’ recollection of the number of meetings they had attended and who was present differed to that of Mr Levy, but he also had a recollection that their offer was based on an understanding that significant undisclosed cash was being taken out of the business. In cross-examination, he agreed that was one of the things attractive to him about the Hotel, because it added value to the business, looking at it from the point of view of financing, because it would affect the valuation of the business.
In cross-examination Mr Sanchez agreed that he had been disqualified from holding office as a director in March 2015, in circumstances explored with him, which founded the basis for submissions as to his credibility.
The fact remains, however, that the offer made for the Hotel reflected takings very considerably greater than the disclosed profit, or undisclosed cash of only some $74,620.
There was evidence that in some weeks as much as $10,000 cash was being sent to Mrs Wright. If that evidence were accepted, it would help explain how it was that the cash and alcohol being taken out of the business amounted to some $1 million per year. That all of this came from what was being taken from bottle shop sales each week, was not sought to be established on the evidence.
Further, Mr Wennerbom, the Hotel’s solicitor, could not recollect any discussions about undeclared cash having taken place in his presence at the meeting where the purchase was negotiated, over the course of some three hours. He agreed that his recollection was not perfect, but denied that $600,000 cash had been discussed at the meeting he attended. He also said, however, that the proposed price was not negotiated at that meeting. He understood it had been discussed beforehand.
It follows from all of this evidence that payments made to the applicant in cash for overtime was authorised; that the directors were taking considerable undeclared cash out of the business even before they employed the applicant; and that continued afterwards. The questions raised by the evidence thus included the extent of the cash which the directors were taking, its source and whether all of the cash which ended up in the applicant’s accounts, was authorised.

The appeal must be upheld

It follows that in resolving the credit issues which arose, so that conclusions as to the factual matters in issue could be reached, his Honour had to explain, in the way discussed in Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57 at [130] - [131], not only the result of his examination of the competing evidence on the factual matters in issue, but also his analysis of that evidence. He also had to explain why he rejected the applicant’s evidence on critical matters, even when corroborated by other prosecution witnesses such as Mr Standen, Ms Ashton and Mr Wright, and instead preferred that of Mrs Wright, even when her evidence was contradicted by theirs. He also had to explain why the evidence of other witnesses he found to be unimpressive was rejected, even when their evidence was consistent in part with the evidence of prosecution witnesses and in the case of Mr Justin Taylor, who was a witness of truth, on the prosecution case.
This was undoubtedly a difficult task. The tax fraud lying at the heart of all of these issues made it particularly important for his Honour to explain how it was that he came to conclude that the prosecution had met the onus which fell upon it, to prove what was alleged against the applicant, beyond reasonable doubt.
It was clearly not only the applicant who had a real motive not to tell the truth. The three directors each had obvious reasons for not disclosing the extent of their respective tax fraud. It was thus relevant for his Honour to consider that in part, not only was their evidence contradictory, it was also contradicted by other evidence called in the prosecution case, as well as by evidence called in the defence case, apart from that of the applicant, particularly that which the Crown accepted had been given by a witness of truth, Mr Justin Taylor.
I am thus unable to agree with RA Hulme J that the trial judge’s undoubted advantage of having heard the evidence as it was given, provides a basis for the rejection of this appeal. His Honour was obliged to provide an explanation of his analysis of the critical evidence, in order to explain why it was that the evidence which contradicted that of Mrs Wright, which I have discussed, still left open the conclusion that her evidence could be accepted, so that his Honour was not left with a reasonable doubt as to the applicant’s guilt of the charges of which he was convicted.
Like in Waterways Authority, the conclusion that Mrs Wright’s evidence was to be accepted and preferred to that of the applicant was not supported by a necessary analysis of the competing evidence. The absence of explanation for and reasoning in support of that conclusion also reveals that the process of fact finding miscarried in this case.
In the result, I consider, that it must be concluded that his Honour fell into various of the errors of which the applicant complained, in relation to ground 4.

Orders

I would order that:

Leave to appeal be granted.

The conviction be quashed.

The appeal be upheld.

The matter be remitted to the District Court for retrial.

**********

Endnotes

Decision last updated: 02 February 2017

Medium Neutral Citation:	Taylor v R [2017] NSWCCA 2
Hearing dates:	23 and 24 November 2016
Decision date:	02 February 2017
Before:	Basten JA at [1]; R A Hulme J at [117]; Schmidt J at [128]
Decision:	(1) Grant the applicant leave to appeal against his convictions. (2) Dismiss the appeal.
Catchwords:	APPEAL – criminal – judge alone trial – nature of appeal – constraints on challenges to findings of fact based on credibility assessments – appeal not in nature of rehearing CRIME – appeal – steal money property of employer – judge alone trial – challenge to admission of evidence – challenge to reasons – whether verdicts unreasonable or cannot be supported on the evidence EVIDENCE – admissions – responses to questioning by investigator hired by employer of accused – whether investigator an “investigating official” – whether investigator capable of influencing decision to prosecute – Evidence Act 1995, s 85 EVIDENCE – admissions – whether deed by which accused agreed to repay money contained an admission – whether deed admissible – whether letter explaining failure to make repayment under deed admissible
Legislation Cited:	Crimes Act 1900 (NSW), s 156 Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Procedure Act 1986 (NSW), ss 33, 133, 281 Evidence Act 1995 (NSW), ss 84, 85, 88, 90, 119, 128, 138, 184; Dictionary Trade Practices Act 1974 (Cth), s 155
Cases Cited:	Australian Competition and Consumer Commission v Pratt (No 3) (2009) 175 FCR 558; [2009] FCA 407 Beale v NSW Government Insurance Office of NSW (1997) 48 NSWLR 430 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 R v O’Donoghue (1988) 34 A Crim R 397 Simic v The Queen (1980) 144 CLR 319 W v R [2014] NSWCCA 110 Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Category:	Principal judgment
Parties:	Adam John Taylor (Applicant) Crown (Respondent)
Representation:	Counsel: Mr M Thangaraj SC/Mr N Simpson (Applicant) Mr H Baker (Respondent) Solicitors: K Sidaway (Applicant) Solicitor for Public Prosecutions (Respondent
File Number(s):	2013/372748
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 29 February 2016 Before: Garling ADCJ File Number(s): 2013/372748