The Queen v Skinner - [2012] NTSC 70

The Queen v Skinner [2012] NTSC 70
PARTIES:THE QUEEN
v

KEVIN SKINNER

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY AT ALICE SPRINGS
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20824017
DELIVERED:  21 September 2012
HEARING DATES:  12,13 September 2012
RULING OF:  OLSSON AJ
FINDINGS ON DISPUTED FACTS HEARING:
CATCHWORDS:

Disputed facts hearing – Plea to one count of stealing money – Dispute as to quantum of money stolen – Findings of fact.
REPRESENTATION:
Counsel:
Prosecution:  S Robson
Accused:R Goldflam
Solicitors:
Prosecution:  Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:   C
Judgment ID Number:  Ols1204
Number of pages:  39

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA AT ALICE SPRINGS
The Queen v Skinner [2012] NTSC 70

No. 20824017
BETWEEN:

THE QUEEN

AND:

KEVIN SKINNER

CORAM: OLSSON AJ
FINDINGS OF FACT
(Published 21 September 2012)

Introduction

In these proceedings the accused has pleaded guilty to a charge of stealing money from his former employer. Specifically, he admits that, between 13 September 2006 and 13 December 2007 at Alice Springs, he stole money the property of Alice Quality Foods Proprietary Limited. I will refer to him as "the offender" and to the company as "the employer".
Whilst certain facts related to the commission of the offence were agreed, the parties were in conflict both as to the contractual arrangements between the offender and the employer and also the precise amount stolen. The offender concedes that he stole about $7000, whilst the Crown asserts that he stole slightly in excess of $89000.
A disputed facts hearing was accordingly held. The Crown adduced oral and documentary evidence concerning the areas of contention. The offender elected not to do so.
What follows is a composite summary of the agreed circumstances, a discussion of the evidence led and my specific findings of fact beyond reasonable doubt in relation to the evidentiary material placed before me.

The factual context of the offending

The employer was duly incorporated and registered as a company on 24 February 1998. It thereafter carried on business based in Alice Springs as a wholesale supplier of foodstuffs, beverages and other associated items to restaurants and other retail outlets in both Alice Springs and the surrounding region.
The internal corporate structure of the employer is not entirely clear. I was told that it has an issued capital consisting of three shares, each of a different class. There is no evidence as to what rights attached to the various classes of shares. Christopher Robert Darby ("Darby") was a shareholder and director of the employer from its inception and, with his then partner, is said to have contributed a total of about $80,000 capital for its business purposes.
One share has been held by the witness Christopher Grant Nourse ("Nourse"). He has never been a director of the employer, but was appointed its secretary and manager from the outset.
The third investor/shareholder was named Lisa Edwards.
The evidence indicates that Nourse effectively controlled the day-to-day operations of the employer, including the hiring and firing of staff, but was ultimately answerable to Darby, who was essentially only an investor in the operation. He really had virtually nothing to do with the detailed day-to-day operations, although he happened to be in Alice Springs and joined Nourse in ultimately terminating the offender's employment in April of 2008.
The employer engaged varying numbers of persons to work for it from time to time but, at all material times for present purposes, there were three permanent staff, including Nourse.
It is common ground that the offender was employed by the Erldunda Roadhouse as an Assistant Manager from July 2005 to the close of that year. He became Manager of the Roadhouse from the close of 2005 to June 2006. His gross salary before tax for the 2005/2006 financial year was $53,437.60.
His bank statements[1] reveal that, in the period immediately prior to his resignation, he was in receipt of a net monthly wage of $3486 as manager. This equates to approximately $870 per week net. I took him to later claim to the police that he was receiving a net $1800 per week at Erldunda[2].
The evidence indicates that the Erldunda Roadhouse was a customer of the employer. Nourse became acquainted with the offender in that context. From time to time Nourse personally delivered product to the Roadhouse.
Some time in about mid-2006, whilst having dinner with him at Erldunda, the offender made it known to Nourse that he would like to transfer to employment in Alice Springs to facilitate the education of the young children. He asked Nourse whether the employer had a position coming up.
As it happened, a female employee of the employer in Alice Springs named Tarsha Thompson decided to resign as of mid August 2006. Nourse agreed with the offender that the latter could replace her.
There was considerable dispute on the evidence as to precisely how and when this agreement came about and whether the arrangement was ever evidenced in writing prior to or at the commencement of the offender's employment.
It must be said that Nourse does not now pretend to retain a clear memory of the fine detail of all that was said and done at relevant times, but he is adamant that there was nothing in writing as at the commencement date and that he made it clear that the wage payable would be $696 per week net.
He said that the ultimate offer of employment to the offender was on the basis that the latter should receive the same wage as Tarsha Thompson. This was an amount of a $696 per week net after-tax. (That sum increased to $711 per week at a later time when there was a tax break adjustment). Tarsha Thompson had received no other entitlements.
Nourse denied that he was told by the offender what he had been earning at Erldunda as the manager. It was put to him in cross-examination that the main reason expressed by the offender as to why he wished to move to Alice Springs was that he wished to take his partner and two children to Alice Springs, because the daughter was of school age. He said that he could not remember that.
Nourse conceded in cross-examination that there was some, seemingly general and inconclusive, discussion during initial negotiations, concerning the possibility of rental assistance and the use of a company vehicle.
He unequivocally testified that the issue of possible rental assistance was never specifically pursued by the offender and no agreement was ever arrived at as to this. Certainly no identified payments of this type were made. Nourse stated that, when available, one of the company vehicles was in fact made available to the offender for some degree of private use.
It is agreed that the offender commenced employment with the employer on or about 14 August 2006. There was a short overlap period with Tarsha Thompson to enable her to explain the company systems and his duties to the offender. She also attended in the evenings for a time to familiarise the offender with the employer’s computing system, which utilised the MYOB accounting program.
The offender’s duties were, to some extent, open-ended, due to the small number of employees. They included taking telephone orders, raising invoices, preparing statements, occasionally handling and delivering stock, paying wages and accounts, drawing cheques, chasing up delinquent debtors and generally maintaining transaction records in the electronic accounting system.
Curiously, Nourse conceded that there was no safe or other secure container in the business premises. When cash was received Nourse hid it in the store room, until it could be banked – usually a day or so later.
The offender was given on-line access to the employer's operating bank accounts for the purpose of carrying out his assigned tasks.
Amongst other things, it fell to the offender to pay his own salary.
He asserted in his record of interview that, initially, he did not know how to operate the company accounting program on the computer and that, for quite some time, he had to learn what to do. I took him to indicate that someone else made the initial wages entries.
An analysis of the offender’s bank statements discloses the following
wage credits:
Date  Amount($)          Weekly Pay Dates
24/08/2006                   1113.60*             23/08/2006
30/08/2006   696.00               30/08/2006
06/09/2006   696.00               06/09/2006
13/09/2006                   1696.00+             13/09/2006
22/09/2006   696.00               20/09/2006
27/09/2006   696.00               27/09/2006
04/10/2006                   1696.00+             04/10/2006
11/10/2006   696.00               11/10/2006
18/10/2006                   1696.00               18/10/2006
25/10/2006   696.00               25/10/2006
31/10/2006                   1633.00
01/11/2006   696.00               01/11/2006
08/11/2006   696.00               08/11/2006
10/11/2006                   1633.00
14/11/2006   696.00
15/11/2006   696.00               15/11/2006
21/11/2006   696.00               22/11/2006
28/11/2006                   1502.00               29/11/2006
06/12/2006                   1502,00               06/12/2006
12/12/2006                   1502.00
13/12/2006   696.00               13/12/2006
20/12/2006   696.00               20/12/2006
27/12/2006   696,00               27/12/2006
27/12/2006                   1502.00
03/01/2007   696.00               03/01/2007
03/01/2007                   1502.00
09/01/2007                   1502.00
10/01/2007   696.00               10/01/2006
16/01/2007                   1502.00
17/01/2007   696.00               17/01/2007
22/01/2007                   1502.00
24/01/2007   696.00               24/01/2007
30/01/2007                   1502.00
31/01/2007   696.00               31/01/2007
06/02/2007                   1502.00
07/02/2007   696.00               07/02/2007
13/02/2007                   1502.00
14/02.2007   696.00               14/02/2007
20/02/2007                   1502.00
21/02/2007   696.00               21/02/2007
26/02/2007                   1502.00
27/02/2007   696.00               28/02/2007
01/03/2007                   1502.00
06/03/2007                   1802.00
07/03/2007   696.00               07/03/2007
12/03/2007                   1502.00
13/03/2007   696.00               14/03/2007
20/03/2007                   1502.00
21/03/2007   696.00               21/03/2007
26/03/2007                   1502.00
28/03/2007   696.00               28/03/2007
02/04/2007                   1502.00
03/04/2007   696.00               04/04/2007
10/04/2007                   2200.00
10/04/2007                   1502.00               11/04/2007
16/04/2007                   1502.00
17/04/2007   696.00               18/04/2007
18/04/2007                   1502.00
23/04/2007                   1502.00
24/04/2007   696.00               25/04/2007
27/04/2007                   1502.00
30/04/2007                   1502.00
02/05/2007   696.00               02/05/2007
04/05/2007                   1502.00
08/05/2007                   1502.00
09/05/2007   696.00               09/05/2007
10/05/2007                   1502.00
11/05/2007                   1502.00
15/05/2007                   1502.00
16/05/2007   696.00               16/05/2007
17/05/2007   696.00
22/05/2007                   1502.00
23/05/2007   696.00               23/05/2007
23/05/2007   696.00
28/05/2007   696.00
29/05/2007                   1502.00
30/05/2007   696.00               30/05/2007
05/06/2007   696.00
06/06/2007   696.00               06/06/2007
08/06/2007   696.00
12/06/2007                   1502.00
13/06/2007   696.00               13/06/2007
14.06/2007   696.00
18/06/2007                   2399.50#             20/06/2007
19/06/2007   696.00
21/06/2007                     751.00
09/07/2007                   1502.00
10/07/2007   696.00
11/07/2007   696.00               11/07/2007
16/07/2007   696.00
19/07/2007                   2399.00
20/07/2007   696.00               18/07/2007
25/07/2007   711,00               25/07/2007
26/07/2007   711.00
31/07/2007   779.00
01/08/2007                     711.00               01/08/2007
07/08/2007                   1512.00
08/07/2007   711.00               08/08/2007
10/08/2007   350.00
13/08/2007   711.00
15/08/2007                   1711.00+             15/08/2007
20/08/2077   711.00
21/08/2007   711.00               22/08/2007
28/08/2007   711.00
29/08/2007   711.00              29/08/2007
31/08/2007   711.00
05/09/2007                   1711.00+             05/09/2007
10/09/2007                   1711.00
11/09/2007   711.00               12/09/2007
17/09/2007                   1546.43
19/09/2007   711.00               19/09/2007
01/10/2007   711.00               26/09/2007
02/10/2007   711.00
03/10/2007                   1422.00               03/10/2006
05/10/2007   765.00
08/10/2007                   1711.00
10/10/2007   711.00               10/10/2007
15/10/2007                   1711.00
16/10/2007                   1711.00               17/10/2007
18/10/2007   765.00
24/10/2007   711.00
31/10/2007   711.00               31/10/2007
06/11/2007   711.00               07/11/2007
12/11/2007   711.00
14/11/2007   711.00               14/11/2007
20/11/2007   711.00               21/11/2007
26/11/2007   250.00
27/11/2007   711.00
03/12/2007   711.00
06/12/2007   711.00               05/12/2007
11/12/2007   711.00               12/12/2007
13/12/2007   711.00
Notes:
(1)There were a further 18 paydays after 13 December 2007, up until the ultimate termination of the offender’s employment by the employer. These payments were made by persons other than the offender. Each of them was at the rate of $711.00 per week.
(2)The first payment (marked *) represented pay at the net rate of $696 for eight working days.
(3)In the case of the four payments marked +, the Crown produced EFT receipts that formed portion of the employer’s records and evidenced some electronic funds transfers to the offender's account. In each instance the actual payment was for $1696.00, but someone has altered the receipt by whiting out the first 1, thereby making it appear that the receipt is for $696.00.
(4)The payment marked # includes holiday pay for the offender, correctly calculated. However, the payment on 19 July 2007 is for a similar amount and constitutes a double payment.
(5)In all, over the period of 69 weeks in which the offender was responsible for his own salary payments, there were 132 EFT transfers into his account. The total of them amounted to $137, 020.43. On a net basis this would reflect a gross annual payment in excess of $150,000.
(6)A net payment of $696 per week in the 2006 – 2007 financial year would reflect a gross wage of about $46,046 per annum. A net payment of $711 per week in the 2007 – 2008 year would reflect a gross wage of the order of $46,090 per annum.
(7)In the 2006 – 2007 financial year, a gross wage of $1520 per week would equate to an annual income of about $79,040 and a net weekly wage of $1122.85.
(8)In the 2007 – 2008 year, a weekly gross wage of $1520 equated to the same gross annual rate as in (7) above, but gave rise to a weekly net wage of $1127.28 per week.

I will return in due course to make a number of comments concerning the above table of payments. For the moment, I will continue with a recitation of the narrative facts.
The witness Nourse presented as a man of mature age, who gave his answers in evidence spontaneously and with conviction. He accepted that he was computer illiterate until sometime after the offender left employment with the employer and he admitted that the general administration of the business was "pretty informal". He agreed that, at the time when the offender commenced employment, the business "was a bit haphazard because of the workload on me".
It is clear that he was experiencing increasingly serious cash flow problems as time went by. I have no doubt that he was highly preoccupied with attempting to keep sales up and the business afloat. He was obviously content to leave much of the routine administration to the offender.
In many respects he came across as a somewhat unsophisticated, naive and overly trusting individual. I do not consider that he possessed and acted with the type of knowing guile as was suggested by Mr Goldflam on behalf of the offender.
I entertain no doubt that Nourse did not maintain a close oversight of the primary book work of the business. Indeed, it is clear that the formal accounts of the employer are still a long way from being up to date. He conceded that he did not supervise the offender in relation to the function of paying staff by means of the Internet banking facility. He said that this was because he was probably too busy and that, in any event, he was not conversant with the Internet banking system at the time.
It is true that, in cross-examination, Nourse conceded that he did, from time to time, look at the bank statements. What he actually said was "I looked at the bank statements mainly checking on who had paid money in and what money we had paid out".
However, this needs to be considered against the background that, as Mr Robson pointed out, the entries related to payments to the offender at the "normal" rate almost invariably bore the endorsement "Kevin's wages", whereas other payments into his account were usually merely endorsed "wages". It was not immediately apparent as to who was the recipient of the latter.
Nourse was adamant that, notwithstanding the initial discussions that he had with the offender during which the topic of rental assistance was mentioned, this was never agreed to and that the sole monetary benefit agreed to be paid to the latter was the base starting salary which produced $696 per week net.
He denied that there was ever any firm agreement concerning bonus or commission payments. He said that the offender was permitted to use the employer’s vehicles in part for his own purposes. He did not ever authorise the offender to make additional payments to himself over and above his base wage[3]. He indignantly refuted any suggestion that extra payments were discussed[4].
He agreed that it was not until another employee left that the offender had sole, after business hours, access to the employer’s Pulsar sedan vehicle. The offender had, however, been permitted to use another vehicle outside working hours.
Nourse testified that, at some stage during the offender's employment in late 2007, he had a query concerning his own earnings and asked an external bookkeeper, the witness Goodwin, to have a look at the employer’s records.
This witness said that, in about October or November 2007 he was approached by Nourse who was concerned that his group certificate had overstated his wages by quite a considerable amount.
I pause to comment that I unhesitatingly accepted the witness Goodwin as an independent and accurate witness. He had known Nourse for about 15 years and had, from time to time, done some bookkeeping and accounts work for the employer.
Goodwin informed Nourse that the only way that he could verify if the group certificate was correct would be to compare the bank statements to the wage records, because the group certificates are simply a download of the wage records.
He said that, on a first examination of the employer’s records, he and Nourse located an error on the latter's personal VISA card and then observed that, on some printed EFT transaction receipts, figures had been whited out in the manner appearing in exhibit P6, as earlier referred to.
Sometime in November 2007 Goodwin attended the employer's premises and commenced to review the relevant records from July 2006. After doing about 2 1/2 or three months of the review he concluded that there was a problem with the books.
In particular, he observed a fairly consistent pattern of substantial overpayments to the offender. As he put it "whereas the wage record was showing $696 the actual amount taken out of the bank was up to $1600, so it was a $1000 discrepancy".

On the following day Nourse and Goodwin spoke to the offender.
Goodwin testified that they said to the offender that there was a great discrepancy with what he was showing in his wage records and what cash had actually been paid out of the company's accounts to him.
This witness said that the offender’s response was "Yes, in fact I’ve taken money. I only intended to borrow it and I intend paying it back. I should have spoken to Chris earlier."
He further said that the offender then told them that he had an accountant that looked after his books and he was holding a quantity of gold on his behalf; that the offender was going to sell that gold to repay Nourse.
Goodwin was quite positive that the offender volunteered that the figure would be around $20,000, but that he (Goodwin) did not pursue that aspect at that stage because he had only done a review of the first two months or so of the financial year.
This witness stated that Nourse accepted the offender's explanation and the fact that he was going to make restitution when he sold the gold. He accordingly permitted the offender to continue in his employment as before.
According to Goodwin, at about what he thought was a couple of weeks later, he was present at the employer's premises. Nourse showed him a further bank statement and asked him to look at it. Godwin concluded that the same type of discrepancy had continued[5].
On the same day Nourse and he again spoke with the offender. Goodwin said to the offender "What's happening?", to which the offender replied "Well, I needed the money."
Goodwin thereupon advised Nourse to discontinue the offender’s electronic access to the employer's bank account and he did so. For a time, Goodwin himself or Nourse attended to wages payments.
I accept Goodwin's account as to what took place notwithstanding that he did not mention the figure of $20,000 at the committal hearing. It was put to him that the offender had in fact said to him that he thought that he had taken about $7000, but Goodwin responded that he had no recollection of such a statement.
Goodwin presented as an excellent, dispassionate witness and his evidence as to what occurred was convincing and quite unequivocal.
Nourse also gave evidence that the offender had indicated that he had taken about $20,000[6].
Nourse gave evidence to the effect that he continued the offender's employment for a time because he kept promising to pay back the money that he had taken. The offender continued to assert that he was going to redeem his gold and that a person called Gary, who was his financial adviser, was "waiting on the papers to be released to pay us the outstanding money".
This witness related that, sometime in February March 2008, the offender told him that he (Nourse) might be getting a phone call from a lending institution in Darwin – because he had applied for a loan and it was necessary to sign a piece of paper to say that he worked for the company or something to that effect.
The phone rang and the offender put a piece of paper in front of him while he was talking to a customer and asked him to sign it. The piece of paper was folded over.
Nourse said that he was worried and busy at the time and just signed it. He did not see any writing or printing on the paper. I accept his evidence in that regard, which is consistent with the naive and somewhat unbusinesslike, unduly trusting, approach that he obviously adopted throughout his dealings with the offender.
There is no doubt that the offender did raise a loan of $18,000 on about 27 February 2008. Such a sum was paid into his bank account on that date. On 4 March 2008 he wrote a cheque to the employer for $7000. This was paid into the latter’s bank account.
Nourse testified that, when the $7000 was paid, he asked the offender when he was going to finalise repayment of all the monies that he had taken. He said that the offender reiterated his story about redeeming his gold.
This witness testified, and I accept, that sometime early in 2008, he was in Adelaide and telephoned the offender.
He narrated that, during the conversation he said to the offender "Kevin, there is no gold", to which the latter replied "No". It is obvious that, so far as Nourse was concerned, this was the last straw[7].
He testified that, on 28 April 2008, Darby happened to be in Alice Springs. He was normally located in a remote area. Nourse contacted Darby and said that he needed to speak to him. Darby came to the employer's premises.
Like Goodwin, Darby presented as a straightforward and convincing witness. I have no hesitation in accepting him as an accurate historian as to what transpired from his viewpoint.
After some conversation between the two of them, Darby and Nourse confronted the offender.
Darby confirmed that he said to the offender that "Money was still going missing and that we had no alternative but to dismiss him even though we tried to give him an opportunity to pay that money back and it hadn't happened".
Darby further testified that Nourse raised an issue with the offender as to some documents that he had signed. He asked the offender what the documents were.
The offender's response was that he had nothing to worry about, they were nothing to do with Alice Quality Foods, they were bank documents. I take this to have been a reference to exhibit D1. The exchange that took place is consistent with Nourse's present stance that he never knew what was in that document.
This witness said that the offender departed the premises and apologised to him as he did so.
In cross-examination, Darby said that he would not have agreed to put one of the staff on a commission on sales unless there was some genuine reason for it. However, he confirmed that he did not normally have any personal involvement in the hiring or firing of staff, as that was the prerogative of Nourse.
He further confirmed that, at about the time when the offender was terminated, he had been pressuring Nourse about a repayment of $30,000 that had been contributed by him and his former partner to assist with cash flow.
The court file reveals that the offender was arrested on 3 September 2008. He participated in an electronic record of interview on the same day and a DVD of this was tendered in evidence and played.
I do not consider it necessary to traverse the content of this in fine detail. I will merely refer to relevant highlights.
Inter-alia, he told the police officers that an initial firm offer of employment had been made to him by Nourse on the basis that the employer would pay half of his rent and that he would be on a bonus system. He stated that he had a letter at home signed by Nourse to that effect.
He asserted that the deal envisaged payment to him of an initial $696 net per week and that he was also to be paid a telesales percentage, half of his rent and his cost of fuel. However, he said, this fell through because Nourse said that couldn't be done and written off through the business and that it would have to be done in another way.
He admitted that Nourse gave him a small company car to use in about August 2007 when another employee retired.
The offender stated that the net wage of $696 per week later became $711, due to a tax cut.
He told the police that he had finished work at Erldunda on 30 June 2006 and had then taken a fortnight off before starting with the employer. [This was clearly inaccurate, in that his first payment of wages by the employer was due on 23 August 2006 and was for an eight working day period because he had commenced in a mid week.]
When asked by the police as to why the fourth payment that he received on 13 September 2006 had suddenly escalated from $696 to $1696, he said that he couldn't remember, but that, sometimes, Chris (i.e. Nourse) used to just say, because of the deal that we had "to take extra".
He claimed that a lot of the cash that came in never went through the books either; and that Nourse kept it.
He said that he was unable to explain why wages payments of $696 were labelled "Kevin's wages", whereas other larger credits were simply labelled "wages". He asserted that, in any case in which there were payments in excess of the $696, these would have been made as a result of a "direction from Chris".
When shown the electronic payment receipts comprising exhibit P6 that had been altered by whitening out figures, the offender denied any knowledge of the alterations.
He was unable to explain how it was that, in some instances, he had received similar (or even increased) credits within a day or so of one another.
He did, however, insist that any apparent overpayments would only have been made at the direction of Nourse, who picked up the bank statements each fortnight and would have been aware of what payments had been made from the employer’s account.
This was also essentially his response when the police pointed out to him that, at times he received the "normal" $696, whereas at other times he received considerably increased sums.
When it was pointed out to him that, at the end of July and beginning of August in 2007 he had been paid four times in five days, he was unable to explain how that had come about. Nor was he able to explain a somewhat similar phenomenon in relation to payments on 7, 8, 9, 13 and 15 August 2007.
Other apparent anomalies of that general type were put to him and his eventual response was "That's the way Chris would say to do it. I only did what he told me to do."[8]
The offender asserted to the police that Nourse had spoken to him prior to Christmas 2007 at a time when Darby had been pressuring him for money that "the wages and the way we have been doing it would have to stop".[9]
The offender contended to the police that, following this statement to him and a later accusation that he had taken some cash[10], he took out a loan and paid back what he considered was owed to the employer, namely $7000.
He arrived at that figure after working out what he considered that he owed the employer, taking into account what had been due to him in accordance with the original employment arrangements. He contended that, in paying $7000, he had actually overpaid what was due by him.
The offender denied that he had ever told Nourse that he thought that he owed the business about $20,000.
He further denied ever having seriously represented that he had a quarter of a million dollars invested in gold – this topic was, he claimed, no more than a joke between Nourse and himself.
The offender acknowledged to the police that, after spoken to by Nourse prior to Christmas 2007, he did not have permission to take other than his agreed base wage from the employer’s account but, nevertheless, he did so.
He said that the commitments that he had were reliant on receiving that extra money. In any event, he had ultimately paid it back with the payment of $7000.
Towards the conclusion of his interview the offender reiterated his denial of ever having altered any electronic payment receipts and pointed out that the relevant files were never locked and anyone could have had access to them. He then had this to say[11]:
"Anybody had – anybody who worked there had key to get into the place and other people who had finished working where had keys to get into the place. So I – I – I don't understand – I know where he's coming from – why he is doing it, but the agree – initial agreement was for me to come in was, like I said, he would pay half my rent and buy fuel and other expenses which never happened, because he told me in the end he was advised that he couldn't do that.
…………
By law or by the taxation or how he was going to do it. So he said we'll have to work out another way to do it, so we drew up a letter, he signed it and said that the 15% of sales generated through the business………”
I now return to the topic of the document said to have been signed by Nourse concerning the basis of the offender’s employment by the employer. What was said to be the original of that document was produced by Mr Goldflam on the disputed facts hearing.
It is to be noted that Nourse was not challenged in cross-examination as to the circumstances and time at which he says he signed what may have been a page on which such a document is now written.
It was certainly not put to him that this document came into existence prior to or at the time when the offender commenced employment with the employer. Of course, Nourse denies ever having seen a document containing the detail now appearing in exhibit D1.
There are a number of curious features about that document.
In the first place it purports to bear the date "31/7/06" and none of the handwriting on it, apart from the signature, is that of Nourse.
It was conceded by the offender to the police that he had written it out[12].
Oddly, the signature on it has an appearance as if it has been written through carbon paper or something similar.
Moreover, despite the date that the document bears, it refers, in the past tense, to the offender having commenced employment with the employer on "3/8/06".
Further, it states that the employment is on a base salary of $46,280 plus a bonus system of 15% of "all sales after tax" [whatever that expression may mean] and concludes with the statement "This equates to an wk gross of $1520.00".
Finally it purports to be signed by Nourse as "Manager" but then, below that, describes him as "Company Director" – a position that he has never held.
As appears from the table of EFT payments set out earlier in these findings, the offender commenced a fairly regular pattern of paying himself amounts of $1502, in addition to payments of $696, fairly regularly between the end of November 2006 and mid-July 2007.
It is to be noted that exhibit D1 refers generally to all sales after tax, whereas, in the course of his electronic record of interview, the offender spoke specifically of commission on telesales only.
In the course of his submissions Mr Robson described exhibit D1 as a pivotal document which was a rather clumsy and transparent fabrication. As he put it, "it makes no sense, in my submission, of itself, on its own terms and in the context of the transfers that were supposedly made later by Mr Skinner, after he had commenced employment, remembering that this is a document that is purported to have been made before he commenced employment in July 2006."
Bearing in mind the particular features that I have above outlined and the evidence generally I consider that Mr Robson's criticisms are well justified.
For the sake of completeness I record that Nourse readily accepted that, about a year after the offender had commenced his employment with the employer, Nourse established a separate entity named Eagle Agencies. This purchased product and then resold it to the employer at a small profit.
He said that this was done at a time when, due to cash flow problems, the employer had difficulty in paying its accounts and its credit was restricted. It was a strategy designed to obtain additional credit. Eagle Agencies did not buy food, but it did buy some drink products and other items. At a later stage Eagle Agencies itself experienced difficulty, because the employer was unable to pay it for product purchased.
I here comment that I do not share the somewhat sinister connotation sought to be placed by Mr Goldflam on the actions of Nourse in setting up and operating Eagle Agencies. It seems to me that his strategy was no more than an act of desperation designed to obtain further credit when the employer itself was unable to do so.

Conclusions

I now proceed to summarise my key findings in light of the foregoing background, to the extent that I have not already specifically expressed them.
In doing so, I should make the point at the outset that the offender’s stance is to be derived from what he said to the police officers in the course of his electronic record of interview.
That is before me in evidence and must be borne in mind in assessing what reasonable possibilities may remain at the end of the day. However, I bear in mind that his statements to the police did not constitute evidence on oath and were not tested by cross-examination.
In these circumstances what he said can only be given limited weight as against convincing oral evidence on oath called by the Crown and any inferences properly arising from it, except where it derives support from independent or other confirmatory evidence.
I have already indicated my acceptance of Goodwin and Darby as witnesses of truth and accuracy.
In general, I also accept Nourse as a witness of truth, given his admitted lack of memory of some matters of detail. His narrative derives considerable support from that of Goodwin in particular and is consistent with the overall pattern of the actual financial transactions that occurred.
Whilst Mr Goldflam has advanced everything that can fairly be submitted on behalf of the offender, I am unable to accept that the core propositions relied on can stand as reasonable possibilities on an objective review of the whole of the evidence.
I regard many of the statements made by the offender to the police as no more than fanciful, self-serving propositions. They strain credulity to breaking point.
I have already highlighted a number of features of the evidence that lead to such a conclusion and will not retrace all of the same ground for a second time.
I merely emphasise the following points:
(1)Given the casual manner in which the relevant parties approached the basis of engagement of the offender as an employee of the employer, the summary of payments made to him – particularly at the outset – is utterly inconsistent with his assertions as to the bargain said to have originally been made.
(2)Contrary to the representation in exhibit D1, the consistent payments of $696 and (later) $711 per week plainly demonstrate that these were the proper base rates payable.
(3)Moreover, the suggestion in exhibit D1 that the remuneration payable was to be $1520 per week gross is inconsistent with the offender paying himself such a figure on many occasions as a net payment. A proper net payment would have been approximately $1122.
(4)It is even more inconsistent with the many occasions on which both that figure plus $696 per week were paid.
(5)I entertain no doubt that exhibit D1 was a self-serving document prepared by the offender and that Nourse did not ever see the text of it when his signature was appended. The offender himself said to the police "that was a letter in the end that I got – I wrote up and got him to sign because the other deals all fell through"[13].
(6)Strange though his conduct may seem, I do not doubt that Nourse signed the document in the circumstances and manner described by him, given his cavalier and trusting approach throughout. The fact that the document is addressed to "To Whom It May Concern" is consistent with such a situation.
(7)Furthermore, there was no consistency in the manner and timings of the $1502 payments vis-a-vis the $696 payments and, after early August 2007, the former were replaced by payments of $1711, never to be seen again.
(8)There were various double payments or repeated payments within the space of a few days, as referred to by Sgt Butcher in the course of the electronic record of interview, that the offender was simply unable to explain in any convincing manner.
(9)It is significant that, given that there were obvious unexplained repeat payments of the same quantum, the fact is that, from 24 October 2007, the offender paid himself or received payments of $711 as his base salary without protest as to its inadequacy in relation to what he says were the agreed terms of his employment.
(10)The assertions of the offender as to his remuneration at Erldunda are inconsistent with his own financial records and, in any event, the plain inference is that he was most anxious to come to Alice Springs for family reasons. It was he who initiated the employment proposal with Nourse in the first place.
(11)The evidence of the witness Goodwin largely sounds the death knell to the offender’s contentions to the police, in that –
(a)     the reference to the offender's alleged gold investment was clearly put as a serious proposition to the employer and was not treated as a joke as the offender suggested;
(b)     the offender readily admitted to Goodwin that he had "borrowed" money and intended paying it back, which was inconsistent with his stance that he was originally entitled to it under the terms of his employment; and
(c)     Goodwin confirmed that the offender did concede that the amount taken was of the order of $20,000 and that the figure of $7000 had not been mentioned.
(12)Darby confirmed that the offender had conceded to him that his prior assertions concerning his supposed gold investment were false.
(13)The overall pattern of payments initiated by the offender in favour of himself and the differential labelling of them eloquently suggest that he was deliberately making unjustified and unauthorised debits.
(14)The difference noted by Goodwin between the wages records (which showed correct amounts payable to the offender) and the actual payments made into the offender's account clearly indicates deliberate, illicit transactions.
(15)Whilst it is true that Nourse did pick up bank statements on a fortnightly basis, he was clearly looking at them for a particular purpose and, bearing in mind his personality, I am not surprised that he did not detect any anomalies – particularly in light of the differential labelling adopted.
(16)No doubt a more acute and businesswise manager may well have seen anomalies, but that is not the point. I am satisfied that he did not.
(17)Finally, the proposition that Nourse was constantly telling the offender to take very substantial amounts, that varied over time, in addition to his base wage rate, beggars belief.
(18)Not only did the amounts in question not possess any apparently consistent or logical basis of calculation, but they were also paid out at a time when Nourse was truly desperate to maintain cash flow within the employer, so as to be able to pay creditors.

In the course of his submissions, Mr Goldflam sought to place considerable emphasis on what he argued had been the likely financial position of the offender at Erldunda. He sought to argue that it was beyond belief that the offender would have come to Alice Springs on a much reduced financial basis. This, he contended, told heavily against the credibility of Nourse.
I have demonstrated that the evidence actually discloses the exact net remuneration that was being received by the offender in his role as manager at Erldunda and it is a considerably lesser sum than that which was assumed by Mr Goldflam. Admittedly, it is nevertheless in excess of that which is said to have been agreed with Nourse, but the value of the use of a vehicle also needs to be taken into account.
I have given serious consideration to this aspect, but I am not greatly swayed by the argument.
In the final analysis, I do not think that the value of what was offered (including the use of a vehicle) was grossly disparate from what the offender had been receiving.
Also, much depends on the force of the motivation prompting the offender's desire to move. He might well, for example, have seen a move as imperative for the sake of children's education.
I further note Mr Goldflam's reliance on what he described as the chaotic administrative environment of the employer, in which – as he put it – "a swindler could take advantage, but it's also a chaotic environment in which a manager could engage in irregular transactions without his business partners, his investors or anyone else easily finding out about it."
At the end of the day a vital consideration is the assessment of the credibility of Nourse as a witness. For reasons that I have already demonstrated I am constrained to accept him as a reliable and credible witness, subject only to any lapses of memory to which he himself admits.
I do not accept, as a remaining reasonable possibility, that Nourse did knowingly entered into any irregular transactions.
There is no doubt that Nourse did not possess sophisticated management skills and that the environment created by him obviously predisposed to the possibility of defalcations of the nature of those that actually occurred.
However, I consider that it is an unfair criticism of Nourse to suggest, as Mr Goldflam did, that, if he was capable of running a business on the side (e.g. Eagle Agencies) and skimming some profits of the top, then he was equally capable of entering into a secret agreement with the offender to remunerate him in such a way that this was not transparent, because it would have aroused disapproval of Darby[14].
There was, in fact, a very real and valid reason for the creation of Eagle Agencies at the relevant time and I am abundantly satisfied that Nourse did not set out to enter into any secret agreement of which Darby would be unaware.
Additionally, a fundamental consideration is the fact that the offender’s assertions do not make sense on the face of them. He insisted to the police that, as was indicated in exhibit D1, part of his remuneration was to be based on a commission on sales (albeit that his oral evidence is inconsistent with the exhibit as to precisely what sales were in issue) and that the "all up" remuneration was to be quantified at $1520.
Not only would it have been most unlikely, on the evidence, that it would be feasible to readily quantify sales after tax (whatever that may mean) on a week to week basis because of the state of the administration, but also there is no apparent logic to indicate how the figure of $1520 was struck. Moreover, he paid himself that figure in net, and not gross.
I took Mr Goldflam to submit that it remained a reasonable possibility that, as he put it, "he [i.e. Nourse] was in on the arrangement that Mr Skinner told the police about. And of course he's going to adamantly deny that when it is put to him…. because he was dependent on the continued support of Mr Darby who had invested altogether, we think, $80,000 in the business at the time we are talking about and who was kept completely in the dark about the arrangement with Skinner and for that matter about Eagle Agencies as well"[15].
I was invited to find that it was only when the confrontation occurred in about November 2007 between Nourse, Goodwin and the offender that the offender then commenced the defalcations that have been admitted by the offender.
Mr Goldflam further submitted that it is highly improbable that Nourse would have kept the offender on as an employee for a considerable time after becoming aware that he had improperly taken money from the employer’s account.
I agree that what transpired was, on the face of it, unusual but, on my assessment of the personality of Nourse, he did elect to give the offender another chance and was, in any event, desperate to give him an opportunity of reimbursing the significant amount that had been taken. Perhaps he was naive to believe the story about the gold investment at any stage, but this seems to me to be quite consistent with his personality.
Mr Goldflam also argued that, in the final analysis, it really came down to a situation of the word of one person against another, in circumstances in which Nourse was not an impressive witness; and that the offender’s version of the situation (as given to the police) necessarily remained a reasonable possibility. It had not been negatived beyond reasonable doubt.
Whilst there are admittedly unusual features about this case I am, at the end of the day, compelled to the conclusion that the substance of the evidence of all of the Crown witnesses is accurate and that the version of events professed by the offender to the police is simply beyond belief as a reasonable possibility.
I find that the Crown has proved beyond reasonable doubt that the offender did steal a total sum of $89,066.43 as set out in its summary of transactions supplied to me, of which only $7000 has been repaid.

.

[1] Exhibit P3

[2] See MFI P5 at page 25

[3] Transcript p33

[4] Transcript p37

[5] Cf Nourse evidence at Transcript p 37

[6] Transcript p 13

[7] Transcript p 15

[8] See MFI P5 page 37

[9] See MFI P5 page 38

[10] That was subsequently found under a box in circumstances related at pages 42 and 43 of the Transcript MFI P5

[11] See MFI P5 page 48

[12] Exhibit MFI P5 page 48

[13] See MFI P5 page 11

[14] Transcript p 77

[15] Transcript p 78