Tun v Bryant
[2020] NTSC 56
•27 August 2020
CITATION:Tun v Bryant [2020] NTSC 56
PARTIES:TUN, Han Thu
v
BRYANT, Anne
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 12 of 2018 (21622019)
DELIVERED: 27 August 2020
HEARING DATES: 30 August 2018; 1, 2 October 2018; 19 November 2018; 21 January 2019; 1 February 2019
FURTHER WRITTEN
SUBMISSIONS: 21 January 2019; 25 January 2019
JUDGMENT OF: Blokland J
CATCHWORDS:
CRIME – APPEALS – APPEAL against conviction – whether convictions
unreasonable, unsafe and unsatisfactory – whether Local Court Judge made
erroneous credit findings – whether authorisation and claim of right
excluded – whether error in Liberato direction – whether properly regarded
as oath on oath case – held, convictions not unreasonable, unsafe or
unsatisfactory – on an independent review of evidence, authorisation and
claim of right were properly excluded – unreasonable, unsafe and
unsatisfactory ground and related grounds dismissed.
CRIME – APPEALS – APPEAL against conviction – whether improper
conduct by prosecutor – whether prosecutor should have called witness –
witness called in defence case – preferable for prosecutor to have called
witness – evidence given by witness went to periphery matters – evidence
marginally helpful to prosecution and defence – no miscarriage of justice
occasioned by failure on the part of the prosecutor to call witness.
CRIME – APPEALS – application for leave to amend Notice of
Appeal by addition of new ground – proposed ground pleaded tendency or
coincidence evidence led without notice by prosecution – evidence was
central part of defence case – evidence of a system – not tendency or
coincidence evidence – proposed ground has no prospect of success – leave
to amend refused.
Criminal Code 1983 (NT) s 30(2).
Local Court (Criminal Procedure) Act 1928 (NT) s 163(1)(b)
GAX v The Queen [2017] HCA 25; 344 ALR 489, Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51, Lynch v The Queen [2020] NTCCA 6, M v The Queen [1994] HCA 63; 181 CLR 487, MFA v R [2002] HCA 5; 213 CLR 606, Nguyen v The Queen [2020] HCA 23, Pell v The Queen [2020] HCA 12, SKA v The Queen [2011] HCA 13; 243 CLR 400, referred to.
REPRESENTATION:
Counsel:
Appellant:L Nguyen
Respondent: M Chalmers
Solicitors:
Appellant:Robert Welfare and Associates
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: BLO 2005
Number of pages: 58
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINTun v Bryant [2020] NTSC 56
No. 21622019
BETWEEN:
HAN THU TUN
Appellant
AND:
ANNE BRYANT
Respondent
CORAM: BLOKLAND J
Judgment
(Delivered 27 August 2020)
Introduction
Following a contested hearing, the appellant was convicted in the Local Court of eight counts of stealing. She appeals against the convictions. The right of appeal to this Court is conferred by s 163(1)(b) of the Local Court (Criminal Procedure) Act 1928 (NT), which permits an appeal on a ground that involves error or mistake of a matter of fact alone, law alone or a matter or question of both fact and law.
The appeal hearing became protracted with some uncertainty on whether evidence would be required on some of the issues raised by ground 4.[1] It was subsequently suggested the Court deal with ground 4, which raises issues of prosecutorial discretion and proprietary, on a limited basis to determine whether a miscarriage of justice occurred as a result of the prosecutor not calling a witness.[2]
The appeal has a lengthy and complex procedural history.[3] Oral submissions were made before this Court, principally on 1 and 2 October 2018, with further oral submissions relevant to ground 4 made on 19 November 2018. On 19 November 2018 the appellant applied for leave to amend the Notice of Appeal by way of the addition of a further ground of appeal, set out in the ‘Proposed Second Amended Notice of Appeal’.[4] It was agreed that the application to amend the Notice of Appeal would be dealt with on the papers to be filed.
It is convenient to deal with the facts and submissions relevant to the first three grounds of appeal together. Those grounds are:
Ground 1: The verdict was unreasonable, unsafe and unsatisfactory, and could not be supported by the evidence, to the requisite standard of proof.
Ground 2: Her Honour erred in making adverse credibility findings against the Appellant on the basis that “there is very little which corroborates Ms Tun’s account in any way”.
Ground 3: Her Honour’s positive credibility finding of the key prosecution witness, Mr Tsounias, was not supported by the evidence.
Counsel for the appellant acknowledged a substantial degree of overlap between the first three grounds of appeal and the related underlying facts. The resolution of ground one requires consideration of the same factual issues which are relevant to grounds two and three.
Particulars of ground one were provided in the Amended Notice of Appeal as follows:
(A) The learned Judge did not correctly apply the Liberato direction which she gave herself (21.2.18, 117), insofar as:
(i)the evidence in the case, when assessed objectively, gives rise to a reasonable doubt as to the questions of authorisation and claim of right.
(ii)the Judge erred in “accepting that the evidence of the prosecution’s principal witness was true beyond reasonable doubt” (notwithstanding a sworn denial by the accused)
(iii)the Judge did not apply the following aspect of the Liberato direction: [I do] not have to believe that the Appellant is telling the truth before the Appellant is entitled to be acquitted.
Particulars (ii) and (iii) appear to be more in the nature of alleged errors of law rather than particulars which would ordinarily be comprehended in the unreasonable, unsafe and unsatisfactory ground, given those particulars assert errors in the directions given by the learned trial Judge. However, it is appreciated there may be an indirect connection between all particulars when evaluating the evidence and whether it was dealt with according to the principles of proof in criminal matters.
The principles governing ground one are those stated in M v The Queen[5] and affirmed in subsequent decisions of the High Court.[6] Notwithstanding the trier of fact was a Judge, rather than a jury, the applicable principles are the same, save that on appeal, this Court has the benefit of reasons of the learned Local Court Judge.[7]
In M v The Queen[8] the High Court stated:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe” or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regards to those considerations.
An appeal of this kind requires an appellate court to make its own independent assessment of the whole of the evidence, and to determine whether, having regard to any advantages the trier of fact had, it holds a reasonable doubt about the guilt of the appellant. The task of conducting an independent assessment of the evidence requires an appellate court to weigh any competing evidence that might tend against the verdicts reached by the jury.[9] Evidence which has been assessed by the trier of fact as credible and reliable is still to be examined critically to determine whether at first instance a reasonable doubt should have been entertained. The process on appeal has been explained in the following terms:[10]
The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
In terms of resolving any doubt held by the appellate court, the majority in M v The Queen said:[11]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
Notwithstanding the obvious distinction between an appeal on this ground from a jury verdict as opposed to a decision of a single Judge, this Court is still required to make an independent assessment of the evidence given in the Local Court.
Overview of the case at trial
The appellant entered pleas of not guilty to the eight charges, as amended.[12] The charges alleged she stole money on various dates in 2015, the property of Peter Tsounias, trading as Prodigy Painting. The relevant dates of the charges and amounts stolen were as follows:
Charge 1: 19 February 2015, $500
Charge 2: 24 February 2015, $1,000
Charge 3: 17 February 2015, $1,000
Charge 4: 3 March 2015, $1,000
Charge 5: 6 March 2015, $1,000
Charge 6: 9 March 2015, $1,000
Charge 7: 10 March 2015, $3,000
Charge 8: 11 March 2015, $1,000
Charge 9, which alleged stealing $500 on 7 April 2015, was withdrawn before the hearing commenced; however the underlying facts assumed significant relevance throughout the hearing. Additionally, this transfer is the subject of a separate argument under ground 5 of the Proposed Second Amended Notice of Appeal.[13]
The Local Court hearing proceeded over nine days after initially being set down for two days. The hearing comprised evidence and submissions, a stay application, numerous mentions and the recall of a key prosecution witness, Peter Tsounias. The hearing became protracted over contentious procedural and evidentiary issues between the parties.
The principal Crown witness, Peter Tsounias, operated the business “Prodigy Painting and Refurbishments” (Prodigy) located at Winnellie. Prodigy held accounts with the Commonwealth Bank of Australia (CBA) in the name of Peter Tsounias T/A Prodigy Painting (Prodigy1) and a second account, Prodigy Painting 2 (Prodigy2).[14] Over the relevant period, the appellant held her own personal accounts with CBA.[15] Prodigy operated under the IP address 150.101.255.44/32.[16] Through that IP address, Prodigy had access to its CBA accounts. The appellant was employed by Mr Tsounias, the owner of Prodigy. There was no written contract of employment between Prodigy and the appellant. The appellant was employed briefly with Prodigy. She commenced employment on 15 January 2015 and resigned on 23 March 2015.[17] She finished her employment with Prodigy on 31 March 2015. The impugned transactions took place between 19 February 2015 and 7 April 2015.
At the beginning of the hearing the prosecutor conceded there was some uncertainty about the appellant’s agreed wages in relation to whether she was to be paid $33 or $35 an hour.[18] The system at Prodigy was that the appellant’s wages were to be entered into the MYOB system. The appellant had access to the Prodigy accounts and made a number of correct wage transactions to her own account. In addition to paying her correct wages, it was alleged she made “extra payments”[19] which were the substance of the stealing charges totalling $9500. This was the total sum after adjustment following the withdrawal of the ninth charge.[20]
In a record of interview with police,[21] the appellant said she earnt $47 per hour. She said all transfers to her account were authorised by Mr Tsounias. This was disputed by Mr Tsounias and the prosecution. The prosecutor pointed out that, even if the $47 per hour was correct, the extra payments were far in excess of what the appellant was entitled to. Other statements made by the appellant to police were disputed. For example, she told police she could not be paid the whole sum as wages as she could not alter the hourly rate in MYOB. She said the accounts did not have sufficient funds at particular times to pay her. The prosecutor told the Judge the extra payments were not subject to income tax or superannuation.
The appellant acknowledged that aside from transfers made on 7 April 2015, the various banking transfers did take place. In relation to each transfer, her case was that she was entitled to the money as wages paid at the $47 hourly rate and that she was authorised to make the payments to herself. This included back pay so that the wage agreement of $47 per hour was reflected in her wages over the whole period of employment, not simply from the time the appellant says there was agreement as to that sum. The appellant’s case was that she would be paid for 40 hours per week at the $47 hourly rate, regardless of the number of hours worked. On appeal it was submitted that although the case was not framed in the Local Court as a case raising honest claim of right, in essence that was the way the defence put its case at trial.
On appeal, as an aide memoir, the respondent provided the Court with a table setting out various calculations according to the potentially different hourly rates, and the dates and times of the transactions which were the subject of the charges. The actual calculations are not in dispute. Almost all other issues are.
An unusual twist in the case was the prominence of the facts relevant to the withdrawn charge. At the outset, the transfer which was the subject of the withdrawn charge, was not relied on by the prosecution, save that it was noticed as an odd transfer by Mr Tsounias, leading to police involvement. The appellant sought to cross examine Mr Tsounias about both transfers on 7 April 2015. The appellant told police she did not go to the Prodigy office on this day, when money was twice transferred into her account, in the sum of $415 and $500. By 7 April 2015, she had finished her employment with Prodigy. During the course of the hearing it emerged via the IP number, that Prodigy’s computer was the device used to transfer the money into the appellant’s personal account, followed by a further transfer into another personal account which would have required access to her Netbank codes.[22] It was suggested to Mr Tsounias that he had made the transfers on 7 April 2015 into the appellant’s accounts. He denied he had done so. The appellant denied making the transfers on 7 April 2015. She maintained that someone else must have completed the transfers.
The asserted weaknesses in the prosecution case which were highlighted on appeal primarily relate to issues with the evidence of Mr Tsounias and how the trial Judge dealt with those issues. The submissions made on behalf of the appellant, with one significant exception, tended to focus on periphery matters. The exception was that Mr Tsounias told the Local Court he did not access his accounts when on a trip to China, whereas the banking records produced and the associated explanatory evidence show that he did access his accounts when he was in China. The balance of the evidence, particularly the bank records together with the business records, plainly support the prosecution case. The discrepancies found in the Prodigy records which led to the police investigation were not discovered until after the appellant left the employment of Prodigy.[23]
Although some parts of the appellant’s evidence before the trial Judge supported periphery elements of what can only be described as a highly unlikely or even a fanciful state of affairs in answer to the prosecution case, that supportive evidence is not of significant weight and does not deal with material matters. It does not detract from the prosecution case in any significant manner, particularly once the records are appreciated.
Review of the evidence called at the Local Court hearing
The prosecution case largely, although by no means solely, turned on Mr Tsounias’ evidence. Mr Tsounias gave evidence with the assistance of a Greek interpreter. The transcript shows that although an interpreter was provided, Mr Tsounias appeared to only take advantage of the interpreter’s assistance occasionally. At times the interpreter intervened because there were obvious risks of miscommunication. Mr Tsounias frequently answered questions with “maybe” and it is unclear if that was what he meant. It is unclear what meaning should be attributed to those answers. My impression is that he was not being evasive by resorting to “maybe” to answer the questions. Some of Mr Tsounias’ answers need to be seen in light of the communication issues and the particular context in which answers were given. The evidence was the testimony given but some allowance for communication difficulties is appropriate.
Although those observations can be readily made from the transcript, the trial Judge’s observations are informative. The trial Judge mentioned the interpreter was interpreting “in the assistance style rather than a phrase by phrase interpreter”. Further, that often Mr Tsounias’ English was “quite good” but there was some concern around his understanding and phraseology. He sometimes offered long winded explanations and answers, for instance when speaking around a topic before answering in a general sense. The trial Judge concluded that having had the opportunity of observing him, he was attempting to tell the truth as best he could. In relation to his demeanour, it was observed there may be cultural and language issues around giving evidence in a formal setting; however, importantly the trial Judge looked to corroborating evidence in her assessment of Mr Tsounias.[24]
In brief, Mr Tsounis’ evidence in chief was as follows. He was the sole owner of Prodigy, a business he had owned since 2004. Over time he employed different numbers of people, up to 45 in one year. He employed one person in the office administration position. The duties of that person were to take calls, arrange quotes and invoices, collect money and deal with staffing and complaints. The office used the MYOB system for various functions. He employed the appellant but could not recall precisely from what date.[25] He could not recall if she was to be paid $35 or $33 per hour.[26] She worked eight hours per day, in total, a 40 hour week. Her hourly rate was not as high as $47 an hour.[27]
Mr Tsounias said the appellant operated the MYOB system. The two bank accounts operated by the business were the overdraft, with a limit of $180,000 and an account used to pay BAS as well as a credit card account. Only he and the appellant had access to the accounts.[28] A former employee, Monique Close, who was employed in the same position as the appellant continued to work for one or two weeks after the appellant commenced. They were both working for Prodigy at the same time during that period.[29] Ms Close was not called by the prosecutor and that decision, in large part, is the subject of ground four of the appeal and will be discussed later in these reasons. Ms Close was; however, called in the appellant’s case.
On whether timesheets were kept for employees, Mr Tsounias said he thought it was “all in the computer”. He said that sometimes the appellant would give him errors to check and ask him if he was happy to do her payment. He said that happened a few times in the beginning when she gave him the payslip.[30] He said he would check the numbers but did not closely check them. He was not full time in the office.[31] When asked if there were payslips printed, Mr Tsounias said the appellant was doing the payslips; he did not know how to make a payslip; he thought he signed a few times.[32] Taken to a bundle of ten “Weekly Employee Timesheets”,[33] Mr Tsounias recognised his signature on three of the time sheets, saying he signed them at the start but then could not remember signing later time sheets. He did not recognise the signature for the time sheet 19-25 February. He said it was not his signature.[34]
Mr Tsounias agreed he went to China from 11 to 22 March 2015.[35] During that time, the appellant had access to the accounts.[36]
Mr Tsounias could not remember when it was, but the appellant told him she was leaving and had found another job with double the pay she had been receiving at Prodigy. The position was based in Jabiru. He was upset as he said she was ‘brilliant’. He advertised for a replacement employee.[37] He described the appellant’s work capacity in positive ways throughout his evidence, however when read in total, it is clear Mr Tsounias was referring to her office work, not on site work health and safety as was suggested by appellant and will be discussed later.
Mr Tsounias employed Sally Morgan to take over the appellant’s duties. He acknowledged that he initially blamed Ms Morgan for various remaining unpaid bills. During the course of checking what had occurred and tracing certain transactions, he saw that money had been paid into the appellant’s account.[38] When he and Ms Morgan found those discrepancies he notified the police. Ms Morgan’s evidence was that when she found the discrepancies she told Mr Tsounias he needed to get someone ‘qualified’ to look at what had occurred. On behalf of the appellant, it was submitted that Mr Tsounias’ evidence about commencing the investigation was at odds with Ms Morgan who said Mr Tsounias was primarily the person motivated to commence an investigation. I do not think anything turns on an inconsistency about which of them drove the investigation. Mr Tsounias also thought it was Ms Morgan who found the timesheets whereas a later employee, Mr Christiani, said he was told the documents needed to be found for the police and he was the person who found them. It was not Ms Morgan, but this is not a significant matter. The evidence was given two years after the events which is likely to account for minor discrepancies.
Mr Tsounias said when he was to go to China the appellant told him there were some difficulties, some accounts which she had to fix before he left. He said everything was fine. However, on the day before he left for China, the appellant told him that the accounts had to be fixed before they went to the accountant to do the BAS.[39] Taken to the Prodigy2 Account, he was asked about a transaction on 19 February 2015 “transfer to CBA account Netbank” for $500. He agreed that while the appellant was paid wages and superannuation, she was never paid amounts of cash in the sum of $500 or $1000.[40] Asked whether he had authorised the appellant to transfer amounts of $500 or $1000 into her personal account, he said “I never, never, except her own wages, that’s it – nothing else.” [41]
Mr Tsounias was taken to the following transactions: 10 March 2015, debit of $3000 noted as “REIM” for “reimburse”; 11 March 2015 “Transfer to CBA account Netbank, REIM $1000”; 9 March $1000; 3 March $1000; 27 February $1000; 24 February $100; 19 February $500. He said he did not authorise the transfer of those sums to the appellant’s account and had no reason to authorise the same. He said he did not authorise, nor did he have any reason to authorise the payment of $6000 into the appellant’s account over the period 6-11 March 2015.[42] He did not give the appellant permission to take $10,000 paid in amounts of $500, $100 and $3000 over the time she worked for Prodigy.[43]
Mr Tsounias was extensively cross examined. The cross examination raised multiple issues which were relevant to his credit and potentially to the issues of authorisation and conceivably a claim of right. Other evidence tendered in the prosecution case, although circumstantial, provided significant support for his testimony.
The appellant’s rate of pay
There was a substantial amount of evidence which bore on the question of the appellant’s rate of pay and the mode of payment. This was relevant to her case in terms of her assertion that she was authorised to transfer the sums involved or, as it was put on appeal, entitled to the amounts that were transferred and therefore relevant to a bona fide claim of right. As an apparent comparative employee, Mr Tsounias was cross-examined about the employment conditions of the appellant’s predecessor, Monique Close. He described an unsatisfactory employment relationship with Ms Close.[44] In terms of her conditions, Mr Tsounias agreed she did not have a written contract and was not entitled to sick or holiday pay. He did not agree he had an agreement with Ms Close to pay for public holidays over the Christmas/New Year period.[45] He initially said he did not remember the hourly rate he agreed for Ms Close, and then said she was paid $30 per hour. Asked if he offered the appellant $35 per hour, he could not remember.
He was asked about a hand written time sheet commencing 22 January 2015[46] which shows an hourly rate of “33”. He said it was probably the appellant who signed it. It was suggested the time sheet from 29 January 2015 to 4 February 2015 was not signed by the appellant; he said he did not remember.[47] He did not recall if the appellant’s position was advertised at $35 per hour. In terms of the first timesheet which was handwritten and stated “33”, it was suggested that it came about during the handover between Ms Close and the appellant as they were both in the office and the appellant was to be paid $35 an hour, which was more than Ms Close. He said he did not do that and that the payment was in the system. He disagreed the appellant had wanted $50 an hour and that he agreed to $47 per hour.[48] Asked why some of the timesheet records reflected $33 and some $35, he said the appellant was in control of the computer and she was cheating him. He said they got more, when he left for China it was like $40 an hour.[49] He then said he agreed to the sum of $33 per hour.[50] There were no business records produced which would have supported the $47 per hour suggested; however, as discussed later, the appellant said she was paid through two different modes.
Mr Tsounias was asked a series of questions about the appellant’s duties which she argued went beyond administrative duties. The higher rate was said on behalf of the appellant to reflect the value of her work to Prodigy, given she had a work health and safety background. Mr Tsounias agreed the appellant went on site to perform some of her duties, as she had said she was a safety officer. She went on site maybe two or three times.[51] Her duties did not extend to inspecting and writing reports. Her predecessor, Ms Close did not perform those duties. He agreed that because of the appellant’s skills, he was able to tender on some big jobs. He agreed she had undertaken additional duties. He did not agree however, that the Rydges Hotel painting job was particularly big.[52]
The prosecution relied on the timesheets which were entered into MYOB, on the prosecution case, by the appellant.[53] As the appellant denied all but the first time sheet was hers, and alleged that Mr Tsounias had constructed them, Mr Tsounias was cross examined accordingly. It was suggested to Mr Tsounias that the appellant charged different hours than those reflected in the timesheets. For example it was suggested the appellant did not go to the doctors on 30 January 2015 for six hours as appears in the timesheet.[54] He said he remembered they had some problems and he was asked if she could go to the doctors. It was also suggested the entry that she worked on 13 February 2015 was wrong as she was at the hospital that day but that she did work on 14 February 2015.[55] He said “maybe” that had happened. It was suggested the appellant did not sign those records. He said he remembered a few times when she wrote things out to show him but in terms of whether they were her records he said “maybe it’s not, maybe”. He did not remember if they were a true reflection of the hours that she worked. He said he could not say if it was the appellant’s handwriting or not. In relation to the first handwritten timesheet, he said it was not her signature.[56] He agreed it was possible the weekly pay records were wrong.[57]
Monique Close said she was offered $30 per hour as a casual worker when she started at Prodigy with a view to going permanent.[58] She said she was full-time for a while but transferred back to being casual as she did not want the “drama” associated with being full-time. She taught the appellant how to enter wages, which involved entering the timesheets into MYOB. The amount per hour is set up on the employee profile or card. She said she thought she took the appellant through how to set up an employee card. She said Mr Tsounias did not use MYOB. She said if you know where to find the hourly rate, it is not difficult to change it; however, if you do not know where to find it, it will be more difficult.[59] Taken to the payslip records from MYOB for the appellant, Ms Close confirmed the first rate calculated was at $35. For the pay period around 11 March, it was $37 and for another pay period, it was $40. She said rates can be changed, either by going into the employee card and changing the hourly rate or, manually changing at the time of entering the timesheet, although she could not recall whether the latter method could be done.
Denise Farmer, a bookkeeper gave evidence that she was contacted by the appellant who requested she do some one-on-one training with her at Prodigy. Ms Farmer delivered four training sessions and rendered invoices for 18 March, 19 March, 26 March and 27 March. She helped the appellant “clean up” the MYOB file in respect of unreconciled transactions and unprocessed transactions. Ms Farmer identified the appellant’s employee card which included her address and rate of pay. She said the MYOB program produced payslips and then the operator just needed to process the payroll and enter how many hours the employee worked for the particular period, whether it be overtime or sick pay and holiday pay and then it automatically uses an hourly rate set in the card to calculate gross wages. The hourly rate is preprogramed as a default. It is possible to over type or override a gross amount. The payslip will then show the override by having two different figures. The figures can be varied.
With the appellant’s payslip, Ms Farmer noted an hourly rate, set in the employee card at $35, in the second line it is a rate of double time so it was calculated as four hours at $70 an hour.[60] She could not see anything overridden. The next document she examined in the same exhibit was the hourly rate at $35 and a further document had an override of 38 hours, with the calculated rate at $37 but the hourly rate is $35. On the next payslip covering 26 to 31 March, the calculated rate was $35. The hourly rate was not overridden.[61] From 12 to 18 March she said the calculated rate was different to the hourly rate. The earlier document of 5 to 11 March was the same calculated rate but increased by two dollars with a manual override. From 26 February to 4 March 2015 the calculated rate was $40, which had been manually altered because the rate in the employee card was at $35. She gave another a number of examples of the calculated rate being $40 as a result of manual overriding. The card itself was set at $35 and had not been changed.
In her record of interview with police, the appellant said she agreed on and hourly rate with Mr Tsounias.[62] She said she asked for $50 for the hourly rate and they ended up agreeing at $47. She was casual but the minimum hours were 40 hours a week. Her evidence was to similar effect, although she said she initially requested to be paid $40 an hour but they ended up agreeing at $35 an hour. After Monique left, she was told Prodigy were tendering for larger projects which required proper safety documents and specialised roles. She was asked to carry out duties related to project work and tendering processes. She requested pay at $50 an hour and after bartering they ended up at $47 an hour. She said Mr Tsounias agreed that he would backdate the hourly rate from the date of the commencement of her employment in January 2015. There was no witness and no contract. She said she could not discuss the new arrangement in front of Monique Close because of the tension between Monique and Mr Tsounias.
The appellant said she asked Mr Tsounias how she was going to be paid and he pointed to the filing cabinet behind her and told her she could use invoice books. She said that was how people were paid.[63] She identified an orange invoice booklet which became Exhibit 6 in the proceedings. She identified the items noted in the booklet as entries with Prodigy’s ABN, her name, the date and the amount paid. A number of the dates and amounts in the invoice book produced bear no correlation with dates of the suspect transfers. The original invoices were not produced in the Local Court.
The appellant said she was paid in two forms, some was paid through the MYOB system and the rest was calculated and paid by the invoice which she would fill out. As to the discrepancy between the $33 on the timesheet and the original $35 she was to be paid, she said Mr Tsounias instructed her what to write down as Monique may feel hatred towards him.[64]
In cross examination the appellant said she had the conversation with Mr Tsounias about back pay to the rate of $47 in early February. That conversation was just after Monique Close left.[65] She was unable to explain how she made the calculations that appeared in the tax invoice book which she maintained she paid legitimately to herself. She agreed she might have tried to physically go into MYOB to change the daily rate. She said she had no idea how the pay rate varied in the MYOB.[66] She agreed that the first “Weekly Employee Timesheet” which forms part of Exhibit 5 and specifies an hourly rate of “33” was her handwriting and signature, although denied all of the other typed timesheets were hers, notwithstanding they appeared to have her signature on them. This denial was sharply discredited during the hearing through additional information found and tendered. For example, an entry on the timesheet of 2 March 2015 noting ‘Police Criminal Check’ was proven to be correct. On that day the appellant attended the police station for the purpose of a criminal check associated with her shooters licence application on 2 March 2015. The relevant receipt was tendered.[67] The objective evidence supported the prosecution position that the appellant was the author of her timesheets.
Having reviewed the evidence on the point of the appellant’s rate of pay and the closely associated issues, it is concluded that, while Mr Tsounias readily acknowledged he was unsure of the rate as between $33 and $35, the available business records and evidence of office procedures do not support the higher rate asserted by the appellant.
In the record of interview with police the appellant gave her occupation as a health, safety and environmental coordinator. She told police she reached Diploma level in terms of her highest education level. Her evidence was that she had a Diploma of project management, a Certificate IV in workplace health and safety and was studying a Diploma of workplace health and safety.[68] She said she was a project administrator. She referred to her knowledge of project and contract administration for small to large projects and said she regarded herself as very knowledgeable in construction, mining and building.[69]
Even if it is accepted the appellant had certain Occupational Health & Safety qualifications, the evidence indicates that at most she might be said to have dabbled in that line of work when working for Prodigy. She cited only one or two examples herself of being on site. I do not think significant weight can be placed on the appellant’s asserted additional qualification or duties. In any event she was being paid at least $35 per hour compared to Ms Close who was paid $30 per hour which may have accounted for her superior skills. The appellant may have held a legitimate opinion that she should have been paid the higher rate. Her new position at Jabiru Spotless was to be paid at the rate of approximately $47 per hour. The appellant indicated she raised the fact she would be getting better pay in the new position with Mr Tsounias. That tends against the position that she was paid $47 per hour with Prodigy. One interpretation of her evidence is that Prodigy could or would not match that amount.
The appellant’s position that she was to be back paid to the date of starting her employment and that she would receive the $47 per hour rate whether 40 hours was worked or not was, as the learned the trial judge found, inherently unlikely.
What is significant is that, although there was some dispute about the detail of the actual timesheets exhibited at the hearing, there was no dispute about the process engaged in for the payment of wages. Timesheets were entered into MYOB. The appellant’s evidence was that she had two processes for payment. It was not denied that timesheets and MYOB was one of the modes of payment. The timesheets in Exhibit 5 and the MYOB screenshots in Exhibit 17 demonstrate a legitimate process for waged staff at Prodigy.
The other point of fundamental significance is that, even if the appellant was correct about the hourly rate which she was entitled to, calculated over the period of her employment, the higher rate did not account for the monies which had been transferred into her account. This was all put at length to the appellant during cross examination. The appellant was unable to provide any reason in her evidence for the excessive amounts transferred into her account which was well above the amount it would have been, had her wages been calculated at $47 per hour. She provided incomprehensible suggestions about being set up by Mr Tsounias. Further, the fact that the suspect transfers were described as “bookkeeping fees” in the MYOB system and in the CBA accounts as “REIM”, short for reimbursement, indicates the money did not represent legitimate wages.
In my opinion the prosecution readily proved the appellant was to earn between $33-$35 per hour, and that this amount was processed by the system in place at Prodigy to determine the weekly pay and benefits.
Business practices and accounting systems
Counsel for the appellant highlighted Prodigy’s business practices, including “cash jobs” and the mode of paying contractors, noting the appellant was the only waged staff member at the time. There was a system of contractors invoicing Prodigy. Mr Tsounias agreed with the proposition he had a dual accounting system, one was the MYOB system and the other was Excel spreadsheets. The Excel spreadsheets kept track of cash jobs. Asked if he did the cash jobs, Mr Tsounias said “Maybe, I don’t know, maybe”. ”Maybe. I’m not going to lie.” “Maybe. I’m not going to say no.” and then “Maybe for a friend, maybe I done one or two jobs.” He then said he could not remember if he kept track of cash jobs.
It is not completely clear but part of the purpose of the appellant alleging discredible conduct on the part of Prodigy may be related to the aspect of the appellant’s case which suggested an invoice system was allowed for her to claim wages, the same way as the contractors. As mentioned above, a book was passed to Mr Tsounias during cross examination with the first seven pages of the duplicate pages ripped out. He said it was fake. He said he never recalled the appellant giving him the carbon pages. He agreed that workers or subcontractors were using tax invoices during the time the appellant was working for Prodigy and that he sometimes did work for cash and did not take the 10% GST. He said that “may be” he started to have a system with the Excel spreadsheet and that the appellant was keeping track of the cash jobs.[70] He said he is a painter and does not understand computers. He denied he had an arrangement with the appellant to top up her wages in cash.
Both the appellant and Monique Close gave evidence that there was a practice in relation to “cash jobs”; however, the significance of this has been magnified well beyond any substantial relevance. Ms Close said all invoices were recorded in the Excel spreadsheet. It was not outgoings that were recorded. There were some entries for cash jobs. The evidence of Ms Close was that the contractors provided their own books, not a cupboard for them as suggested in the appellant’s evidence. In any event the ABN used was Prodigy’s ABN and no GST was calculated. As the learned trial Judge concluded of the supposed scheme: “This is hardly likely to fool the Tax Department, who this elaborate scheme was meant to circumvent”.[71]
In the circumstances, this was a side issue. There was no support for the proposition the appellant was to be paid in cash. The appellant was the only waged employee for most of her time at Prodigy. She was not an independent contractor. There was no evidence that whatever the arrangements were with the contractors, that it amounted to defrauding the Australian Tax Office. There is not sufficient evidence to draw the inference suggested on appeal “that the reason he [Mr Tsounias] was evasive was because the purpose of the dual system of accounting was to avoid having to report to the tax authorities about the funds paid out for cash jobs” and “Tax avoidance/evasion was the purpose of his oral agreement with the appellant, whereby he would pay her a higher rate for her the [sic] additional value that her work health safety skills added to this business, but still be able to avoid paying additional amounts to the tax office.”[72] There was a faint suggestion that the business practices of Prodigy were maintained to ensure contractors worked on weekends and public holidays. This does not support the appellant’s position. Neither is it to the point that Ms Close broadly agreed with the appellant on the fact there were some “cash jobs”. It may be noted the later Prodigy IT person, Louis Christiani knew nothing of the Excel spreadsheet. The assertion of tax rorting in this particular instance is a matter on the periphery of the material matters to be determined.
The significance of oral rather than written contracts
The evidence was clear from Mr Tsounias, that the appellant was employed on oral contract. Ms Close was also employed on oral contract. On appeal there was a suggestion of something inherently untoward on the part of Mr Tsounias because of this. This is reflected in two parts of the written submissions, firstly “Evidence about the business practice of implementing oral rather than written contracts, for staff employed by the business in waged positions (as opposed to subcontractor positions), namely Monique Close and the appellant” and secondly “Evidence about the practice of Mr Tsounias to make oral agreements with his staff in relation to the conditions of their employment.”[73]
The evidence relied on in support of proof of these practices was some of the less contentious evidence in the hearing. The fact that the evidence of Ms Close supported a minor element of the appellant’s testimony, which was not in dispute, is not significant. The evidence on this subject was insufficient to draw an inference or establish a tendency on the part of Mr Tsounias to not honour oral agreements.[74] Even if it had some marginal relevance, it is not probative of any material fact in issue. This practice does not detract from Mr Tsounias’ credibility.
The invoice book and communal invoice book
As mentioned, when it was put to him in cross examination, Mr Tsounias described the invoice book produced on behalf of the appellant as a fake. He said he had never seen that book or the invoices before. However, there was evidence from Ms Close that there was a “communal invoice book” that was available to all subcontractors to use to invoice Prodigy.[75] There was an invoice book that was sometimes on the premises that they could use, but otherwise they would have their own. Ms Morgan was asked about “little orange books,” which she agreed was similar to the booklet tendered below as exhibit P6.[76] She said she saw Mr Tsounias and his employees handle the books.
There was no dispute that the subcontractors invoiced Prodigy for payment. Although it is not determinative, it cannot go unnoticed that the appellant did not ever suggest to police in her record of interview that the transfers of the money under question were as a result of her status as a subcontractor and that she had provided invoices to be paid on that basis.
The appellant submitted the trial Judge was in error for not finding there were “communal invoice books”. As her Honour noted, the orange invoice book, Exhibit 6, was not signed or seen by any witness apart from the appellant. It appears the trial Judge understood Ms Close’s evidence to be that contractors provided their own books; however, even if Her Honour was wrong about the assessment of the existence of “communal invoice books”, the appellant was relying on her own “invoice book”, consequently the communal invoice book was of no direct or even indirect relevance to her case. In her evidence the appellant agreed she was not a subcontractor and did not have an ABN. Having her own invoice book allowed her to distance herself from any “communal invoice book” in any event. The existence or nonexistence of the “communal invoice book” is of no assistance to the appellant’s case and does not detract from the prosecution case.
Practice of Mr Tsounias with respect to invoices and bank account checking
The appellant argued Monique Close contradicted Mr Tsounias’ evidence about the frequency of him checking his bank account. Ms Close gave evidence that Mr Tsounias would check his bank account multiple times because he would tell her if an invoice had been paid or not. As to who received them or paid them depended on the day. The appellant gave evidence that normally she would tell Mr Tsounias that bills needed to be paid, and he would tell her they could be paid. She would enter it into MYOB and he would approve them; however, he would usually ask how much money was in the account and he would check the account. He would let her know which bills could be paid first.[77] Mr Tsounias essentially agreed that he would check accounts when bills were to be paid. Monique Close said, depending on the day, invoices would either be handed to her or Mr Tsounias, and he would usually check the invoice before they were paid. He would sometimes question the payments, but usually he would see the invoice and see the payment in his bank statement.
It is clear from the evidence that Mr Tsounias frequently checked his bank accounts. Very little can be drawn from this on the question of authorisation. The description on the suspect transfers would not have alerted him to “wages” being paid. Further, the single amounts of most of the transfers were not so significant as to arouse a need for him to consider their provenance or integrity.
Reviewing the evidence as a whole, I have no doubt that Mr Tsounias was generally reliant on the person in the administration role. He did not operate MYOB himself. It is hardly contentious that he regularly checked his accounts. Given the mechanisms used by the appellant to transfer the money, he would not have been alerted to the transfers into her personal account as her claimed additional wages. According to Ms Close, discrepancies could be picked up because of the description on the transaction line.[78] The descriptions on the subject transaction lines were misleading.
The level of involvement by Mr Tsounias in the Prodigy invoices and accounts does not raise any doubt that the particular transfers made by the appellant were not authorised by Mr Tsounias. Neither does it bear on Mr Tsounias’ credibility.
Access to Prodigy accounts in China
It was an agreed fact that Mr Tsounias departed Australia on 11 March 2015 and returned to Australia on 22 March 2015. Mr Tsounias adamantly denied that he accessed his bank accounts in China during this period.[79] The evidence of Brian Holmes, an IT expert, was that the IP address used to access Mr Tsounias’ bank account during the time that he was in China was a Chinese IP address. The evidence was definite that the IP address originated from the People’s Republic of China.[80]
The appellant argued that it was unreasonable for the trial Judge to make a positive credibility finding in respect of Mr Tsounias given he was not truthful about whether he had accessed his account when in China. It is argued his lie in that respect should cast doubt upon other material parts of his testimony.
In my view, the trial Judge dealt with this matter appropriately. In other parts of his voluminous evidence Mr Tsounias made concessions or at least answered probing questions in a satisfactory manner. It is something of a mystery on why he did not accept he had checked or used his bank account during that time, but in the circumstances of the whole of the case, including the balance of his evidence and the other supportive material in the documents and banking records, her Honour’s conclusions cannot be faulted. Having reviewed the evidence independently, I have come to the same conclusion. For completeness I will set out her Honours reasons on this point:[81]
All other corroborating evidence, in my view, supports Mr Tsounias’ version of events, with one exception. He was quite adamant he did not access his accounts in China. However, the computer records show it was accessed on 13 March and various transfers were made.
Those transfers themselves are not a fact in issue. None of those transfers have anything to do with these proceedings. They appear to be to subcontractors. There may be many reasons why he gave the evidence he did about that time. It may of course be a lie. People lie for all sorts of reasons, for other reasons outside of any criminal charge or outside of a particular set of circumstances.
It may be that he did not originally have a recollection of having made those transfers when he was in China. And even when presented with contrary evidence became embarrassed to be wrong about that recollection. I am not sure why he did not accept that those transfers had been made by him in China.
Importantly, her Honour went on to say that she would treat his other evidence with care. She was not satisfied that he was not a credible witness or that his testimony could be dismissed because of that single issue.
The 7th of April 2015 transactions
One of the matters considered by the Local Court was the transactions and the events of 7 April 2015. One of the transactions was the transfer from the Prodigy account to the appellant’s account of $500, the other for $415. In the record of interview the appellant denied any knowledge of the transactions on that day and denied being in the Prodigy office. There was a suggestion that she may not have been in Darwin on that day; however, it is clear from her bank records, obtained during the course of the hearing, that she had been shopping that day at Casuarina.
The appellant’s letter of resignation states “Please feel free to get in touch should you require information after I’ve left”.[82] Mr Tsounias also gave evidence the appellant said she may need to go into Prodigy and do something, however the appellant was adamant she did not. The evidence about whether she retained a key was not precise. It was entirely possible she retained a key.
The evidence in Exhibit 17, Annexure C and associated testimony from Mr Piermont, the senior manager of Netbank and mobile security at CBA, showed that just prior to purchasing items, the appellant’s personal bank accounts were accessed by a person using the Prodigy IP address. Further evidence established that person had proximity either just inside the office or just outside to use the Wi-Fi to access the Prodigy accounts and the personal accounts of the appellant. This was strong circumstantial evidence that the appellant accessed the Prodigy accounts on 7 April, despite her denial and statement that “Someone else must have done it”. That other person would have had to access the appellant’s banking passwords to transfer amounts between her own accounts.
The evidence of the audit logs on the appellant’s accounts[83] showed that around the same time that the appellant conducted personal transactions, money which was the subject of the charges was also transferred. This provides further strong circumstantial evidence. The audit logs in Exhibit 17 of the Prodigy account (Annexure D) and the appellant’s amount (Annexure E) are based on a CBA requirement of logging into Netbank. On the first occasion the appellant transferred her legitimate pay to herself, consistent with Netbank procedures, Mr Tsounias received an email notifying him of the transfer. This is consistent with CBA’s procedure on first payments. That would not continue for later payments. The audit logs show the date and times that someone logged onto the Prodigy account and transferred money to the appellant’s account. A pattern may be observed of logging onto the appellant’s Netbank, completing transactions, logging off and then logging onto Prodigy, transferring money to her account, logging off, and then logging back onto her account through Netbank. This was the sequence of events on each occasion of the suspect transfers. This forms strong circumstantial evidence. Particular examples of this were given in the trial Judge’s reasons and will not be reproduced here.[84]
Exhibit 17 includes the record of five transactions which were made from the Prodigy IP address (therefore Prodigy’s computer) between 10:28 am and 11:19 am until the transaction of $500, the subject of the withdrawn charge, was completed at 12:25 pm. Amongst further multiple transactions from the same device is an internal transfer of $95.80 between the appellant’s accounts. Whoever made that transfer must have had the appellant’s Netbank codes. The appellant was cross-examined about her banking and shopping on 7 April 2015 with reference to the records. Her answers did not serve her credit well.[85] It is unsurprising the trial Judge made adverse credit findings with respect to the appellant.[86]
There was also evidence in the accounts of, at times, relevantly small amounts being transferred within the appellant’s account, always resulting in a balance with round numbers. The trial Judge made reference to this observation.[87] Even without that observation of the transactions, the evidence is powerfully in favour of the prosecution. The totality and cumulative force of the evidence points to the appellant’s denial of accessing the Prodigy office and accounts being a lie. The appellant’s denial of accessing Prodigy’s accounts on 7 April 2015 was used to discredit her evidence overall.
After an independent review of the whole of the evidence, I entertain no doubt as to the appellant’s guilt. If I put the appellant’s evidence aside and assess the charges only the prosecution’s evidence, I entertain no doubt of the appellant’s guilt.
In addressing the particulars in the Amended Notice of Appeal set out at [6] above, the trial Judge clearly understood and applied the standard and the burden of proof. The direction as to the onus and burden of proof and its application was comprehensive. More importantly, is the meaningful process the trial Judge then engaged in to assess the evidence. I set out the directions her Honour gave herself:[88]
It is not the law, as I said during counsel’s closing submissions, that it becomes a case of who do you believe. An onus in relation to criminal law does not work like that. I give myself a clear and unambiguous Liberato direction. That is when a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, I must tell myself that even if I prefer the evidence of the prosecution I should not convict unless I am satisfied beyond reasonable doubt of the truth of that evidence.
Even if I do not positively believe the evidence for the defence, I cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. It is not a question of making a choice between the evidence of the prosecution's principal witness and that of the accused. And in addition I tell myself that the prosecution case depends on me accepting that the evidence of its principal witness was true beyond reasonable doubt notwithstanding a sworn denial by the accused. And I do not have to believe the accused is telling the truth before he or she is entitled to be acquitted.
First – and I am quoting from Anderson v Woods – first, if I believe the evidence of the accused, obviously I must acquit. Second, if I find difficulty in accepting the evidence of the accused but think it might be true, then I must acquit. Third, if I do not believe the accused I then should put their testimony to one side. The question will remain, has the Crown upon the basis of evidence that I do accept prove the guilt of the accused beyond reasonable doubt.
Of course with the onus that we have in the Northern Territory in Australia, a defendant is not required to give evidence. Ms Tun gave evidence under oath before me. She is also of course not required to speak to police. There is a right to silence. However, she did speak to the police and gave a version of events and answered questions in her electronic record of interview.
In my consideration of all of the evidence I turn first to her evidence and consider it. Ms Tun’s credibility must be assessed by me as the tryer of fact. I had the opportunity in court to observe her giving evidence as to well as to see the video recorded with police. A witness’s demeanour is an important tool in assessing credibility. I am quoting from Estey J in White v R [1947] SCR 268 and 272.
It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive. All these questions and others may be answered from the observations of the witness’ general conduct and demeanour in determining the question of credibility.
In R v Manunta (1988) SASC, which is also quoted in the Australian Trial Directions book, his Honour says – and he is speaking as though to a jury and I speak in perhaps the third person, myself being the jury, the trier of fact.
You have been put here as 12 people coming from different walks of life, able to consider the evidence, to decide how much notice you are prepared to take of a particular witness and the evidence that has been given to you by the accused and by witnesses.
You have the right as jurors to believe or disbelieve. You have the absolute right as jurors to reject or not reject and you may accept the whole or you may reject the whole of the evidence from who has given evidence during the course of this trial.
But you should also bear in mind that you are quite within your rights to reject some part and to accept some part of the evidence of that person. Of course at all times you must give careful consideration to the demeanour of the people who have given evidence in the trial.
Therefore I have told you this so that I can emphasise that nothing I say would indicate that you must accept the whole or reject the whole of any one witness without qualification or that you must accept the whole or reject the whole of the evidence of an accused.
It is within your power to accept some part of a witness’ evidence, some part of an accused’s evidence while rejecting other parts. In assessing the credibility of a witness you should have regard to your own impressions of the person who has given the evidence.
You should have regard to the intrinsic likelihood of the story that the witness has told, the manner in which the witness has given his or her evidence, how his story has stood up to the test of cross-examination and how his evidence has – something – with other evidence that you have heard during the course of the trial, which other evidence you find compelling and convincing.
Although the appeal has been argued effectively as an “oath on oath” case, that characterisation is apt to convey the wrong impression of the prosecution case or the state of the evidence. The “oath on oath” part of the case really comes down to the narrow area of evidence given by Mr Tsounias and the appellant on what the hourly rate of pay was and whether Mr Tsounias authorised the payments the subject of the charges. The strength of the prosecution case lay in the accumulated probative force of the banking and business records in addition to Mr Tsounias’ testimony. As discussed above, the records strongly pointed to guilt. Once those records are understood, it becomes clear there is no reasonable possibility that the transfers represented funds the appellant believed she was entitled to or was authorised to transfer to herself.
The appellant had the Prodigy banking codes from early in her employment with Prodigy, on her evidence from the last week of February. She clearly had opportunity to access the funds throughout the relevant period. Additionally, there was some evidence of motive or need for money as the appellant adverted to the cost of overseas travel she had undertaken and was planning to take.[89]
I would not uphold ground one. The finding of guilt was not unreasonable, unsafe and satisfactory, on the contrary the evidence strongly pointed to guilt, with or without the evidence of the appellant. In terms of the particulars, an objective assessment of the evidence does not give rise to a reasonable doubt on the question of authorisation. The character of the transfers made by the appellant, and their disguised nature all point to lack of authorisation to transfer funds over and above her wages. There is no evidentiary basis upon which to find that a bona fide claim of right was relevant. The onus is on the prosecution to negative such a claim. Any such claim of right is to be exercised without intention to defraud.[90] Fraud permeated the system utilised by the appellant.
There was no error in the trial Judge’s application of the Liberato direction as asserted in particular A(i); however, if there was an error in the formulation of the direction, a review of the evidence, with or without having regard to the appellant’s evidence, does not give rise to a reasonable doubt. In terms of particular (A)(ii) that there was error by the trial Judge accepting that the evidence of the prosecution’s principal witness was true beyond reasonable doubt, notwithstanding the sworn denial by the accused, even given the one element of the principal witness’ testimony that was wrong, there was no reason to reject his evidence or to not conclude beyond reasonable doubt that it was true. In any event, the surrounding circumstantial evidence including business and banking records independently supported the prosecution case. As to particular (A)(iii) that the trial Judge did not apply an element of the Liberato direction in that she did not state that she need not believe the appellant is telling the truth before she was entitled to be acquitted, I have set out the trial Judge’s directions in this regard. More importantly, the way the trial Judge dealt with the remainder of the prosecution case after rejecting key parts of the appellant’s evidence shows that the trial Judge was under no misapprehension about the need to separately determine on the prosecution evidence, whether the case had been proven beyond reasonable doubt. On the prosecution case alone, without having regard to the appellant’s evidence, the evidence against the appellant was clear and overwhelming.
I would not uphold grounds 1-3.
Ground 4 is as follows:
Improper conduct by the prosecutor resulted in a miscarriage of justice
Particulars
a. The prosecutor, without a reasonable basis, refused to call a relevant witness, Ms Monique Close, who had been summoned to give evidence in the prosecution case.
b. Ms Monique Close was available at court at willing to give evidence on the first day of hearing.
c. Monique Close, being the employee who Ms Tun replaced, and who Ms Tun was trained by, should have been called by the prosecutor as part of his case, because she was a relevant witness about facts that were in issue:
i.the way Mr Tsounias conducted his business, and the business accounting practice and systems, and the practice utilised in the payment of invoices and wages
ii.the terms and conditions of employment and the manner in which these terms and conditions were reached as between the employee and Mr Tsounias
iii.the reasons Mr Tsounias conducted his business in this manner.
d. The prosecutor’s refusal to call Monique Close gave the prosecutor an unfair tactical disadvantage in his conduct of the prosecution’s case.
e. The prosecutor’s refusal to call Monique Close, and the uncertainties associated as to whether or not she would be called, prejudiced the Defence, in that a Tendency Notice could not be submitted in accordance with the time requirements in the Evidence (Uniform National Legislation) Act (NT).
f. The prosecutor’s attitude to his case was un-balanced, over-zealous, and, on the whole, in breach of relevant prosecutorial guidelines regarding the roles and duties of a prosecutor under the NT DPP Guidelines, Clause 1.2, particularly:
i.the duty to act fairly and impartially
ii.The duty of ensuring that the Crown case is presented properly and with fairness to the offender
iii.The duty to “not ... try to shut out any evidence that would be important to the interests of the offender”
iv.The duty to “offer all evidence relevant to the Crown case”
In the discussion of the first three grounds of appeal, some of the evidence given by Ms Close has been summarised. She was called in the appellant’s case after the prosecutor decided not to call her. The particulars of this ground present a fair summary of the subjects she was to give evidence about.[91] Those areas of evidence, although perceived to be important to the appellant’s case by her counsel about Prodigy business practices and associated subjects, were not central or material to the ultimate questions. The case was determined in substance on other evidence going to material issues.
The decision of the prosecutor on whether or not to call a witness is a decision for the prosecutor alone. The discretion of the prosecutor is to be exercised independently. There are dangers in attempting to assess the decision making process with the benefit of hindsight. It is, however, appropriate to determine whether there has been a miscarriage of justice on account of Ms Close not being called by the prosecution.
Evidence before the Local Court[92] showed Ms Close was a person mentioned to investigators in the course of the police interview. The appellant phoned Ms Close during the interview. Ms Close declined to give a statement to police. She was summoned by the prosecutor and attended court on the first day of the hearing. She was available to the defence. Defence counsel took a proof of evidence from Ms Close before cross examining Mr Tsounias on the first day of the hearing and was able to put matters to him, sourced from Ms Close. The prosecutor spoke to Ms Close and assessed her as not untruthful but determined that she did not have relevant evidence to give because she was not at Prodigy during the time of the offending.
A stay application was made by the defence. The written submissions filed on the stay application are not before this Court. The prosecutor told the Court he would not call Ms Close because her evidence was not relevant and her dispute with Mr Tsounias was a collateral matter. At an earlier case management enquiry, the prosecutor told the Court “I do not intend to call Monique Close. I have spoken to her. My learned friend has fairly vociferously emphasised his point of view on her relevance. I say that in fact she is not relevant and I am not entitled to call irrelevant witnesses.”[93] Defence counsel stated that the prosecutor had a duty to call the relevant witness as she was summoned and had been at the Court for a day and a half. Defence counsel told the Court the prosecutor had a very short conversation with her and sent her away without defence counsel knowing until much later.[94]
The trial Judge refused a defence mid-hearing stay application on the basis that the question of whether the failure to call a critical witness led to a miscarriage of justice needed to be understood against the conduct of the trial taken as a whole. The trial Judge did not think it was a case where any departure by a prosecutor was so glaringly unfair that the case could be stayed during the course of the trial. The submissions filed on behalf of the appellant state the prosecutor’s reasons given to the Court on one occasion were stated as:[95]
a.Monique Close is not relevant as she was not present when any of the transactions occurred.
b.She is a witness of truth;
c.However, there are divergences of opinion between herself and the complainant they don’t like each other. There are differences re: her usefulness as an employee, the reason she was terminated, whether there was agreement in relation to her holiday pay, etc.
While the last of these summarised reasons is not a relevant matter on the question of whether a witness should be called, that was not the reason she was not called. I have now read the full transcript of that day.[96] The prosecutor was simply putting all of the known information before the Court, primarily reiterating that he plainly thought Ms Close’s evidence was not relevant. With the benefit of hindsight, it may be thought that assessment of relevance by the prosecutor was too narrowly drawn. This is not an obvious case of the prosecutor failing to call a material witness who may have been of some benefit to the defence case. Looking at the matter with the benefit of hindsight, in my opinion it would have been preferable for Ms Close to have been called by the prosecutor. However, in all of the circumstances, I do not conclude the decision not to call her was tactical, nor do I conclude there was a miscarriage of justice.
On appeal both parties have emphasised the principles derived from R v Apostillides;[97] Whitehorn v R[98] and R v Shore.[99] Recently, the key authorities have been discussed by the High Court in Nguyen v The Queen.[100] Although in the context of the refusal by the Crown to tender a mixed statement record of interview, the High Court revisited the authorities on prosecutorial discretion, in particular, the obligation to place material witnesses and evidence before the Court, notwithstanding inconsistencies with the Crown case:[101] (footnotes omitted)
Prosecutorial discretion and fairness
In Richardson v The Queen it was pointed out that any discussion of the role of a Crown prosecutor must commence with the fundamental proposition, noted above, that it is for the prosecutor to determine what evidence will be called and how the case for the Crown will be presented. The Court went on to say that the prosecution also has the responsibility of ensuring that the Crown case is presented with fairness to the accused.
In Richardson the Court acknowledged that there may be many factors for the prosecution to take into account regarding evidence, including whether it is credible and whether it is in the interests of justice that it be tendered. Importantly, the Court observed, it is in light of those factors that a prosecutor must determine the course “which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused”. This, the Court said, is what is meant by prosecutorial “discretion”.
The discretion is not reviewable. The tender of evidence by the Crown cannot be compelled by a trial judge although in practice a trial judge might suggest that the prosecutor reconsider a decision not to tender certain evidence. A trial judge might do so where it is foreseen that a failure to do so may result in a miscarriage of justice. Whilst the decision remains one for the prosecutor to make, the reality is that if the exercise of that discretion miscarries the accused might be denied a fair trial. In Whitehorn v The Queen it was explained that because a failure to call evidence may result in a miscarriage of justice and a new trial it is possible to speak of a Crown prosecutor being bound, or under a duty, to call all available material witnesses. It is not to be understood as a duty owed to an accused. It forms part of the functions of a prosecutor.
It has been said that the concept of a fair trial cannot comprehensively or exhaustively be defined". But there can be no doubt that fairness encompasses the presentation of all available, cogent and admissible evidence. In Ziems v The Prothonotary of the Supreme Court of New South Wales, Fullagar J observed the rule in criminal cases to be that "the prosecution is bound to call all the material witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury". This statement was quoted approval by the Court in Richardson, where, as noted above, it was said that it was the responsibility of the prosecution to present the case for the Crown “conformably with the dictates of fairness to the accused”. In Whitehorn Dawson J said that “[a]ll available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based”.
The evidence of Ms Close was of some marginal benefit to both the appellant and the prosecution. Her evidence was relevant to some of the peripheral issues; however, in the end, those matters were not central in my view for either party. There were risks involved in the prosecutor determining not to call her. I would have thought it preferred for Ms Close to have been called, but in all of the circumstances there was no miscarriage of justice.
A variety of other complaints are made under this ground in relation to the conduct of the prosecution. There is no doubt this was a difficult case with complex and hard fought issues raised constantly; however, the conduct of the case cannot be attributed to the prosecutor alone. It takes two to tango. This is not the forum to make complaints about counsel unless the perceived wrong doing has led to a miscarriage of justice. Having reviewed the transcript of the whole hearing, I have concluded the appellant was afforded a fair trial. The trial Judge ensured that. I will not uphold this ground.
Proposed Ground 5
Following the substantive hearing of the appeal, the appellant sought leave to add the following ground of appeal:
Inadmissible evidence used in the prosecution's case for a tendency and/or coincidence purpose resulted in unfair prejudice to the Appellant.
Particulars
a.On 1 February 2017, the prosecutor withdraw charge 9, relating to a transaction on 7 April 2018. The prosecutor represented to the court that evidence pertaining to this (discontinued) charge would not be led in the prosecution case, because it was irrelevant.
b.During the hearing in the Local Court, evidence pertaining to the discontinued charge 9 was used in the prosecution case. In addition, the prosecution led evidence about a further uncharged transaction in relation to a transfer of $405, made on the same day.
c.The evidence used by the prosecution in furtherance of its case in relation to charges 1 – 8 included:
i.Evidence of the Appellant’s bank statements, to establish that she had a certain behaviour, namely, that, when making online transfers of moneys she would do so in a manner which resulted in the bank balance being a round figure, and
ii.Evidence of the two transactions of 7 April 2015, being transactions that appeared to have employed the same habit.
d.In furtherance of the prosecution case, this evidence of the Appellant’s banking behaviours was used by the prosecution to establish that:
i.the Appellant had a tendency to make round figures in her bank balance, and
ii.therefore it must have been the Appellant who made the transactions on 7 April 2015, in that it was beyond coincidence that another person was at the premises that day, making those transactions employing the same habit as the Appellant when doing her personal banking (that is, achieving a balance with round, whole figures).
Leave will be refused. The proposed ground has no prospects of success.
The appellant argues the transactions of 7 June 2015 were wrongly admitted into evidence or wrongly used in the prosecution case. The appellant submitted tendency and/or coincidence evidence was wrongly admitted to prove it was unlikely any other person was responsible for the two transactions on 7 April 2015. One of the transactions was for $500 and was the subject of the withdrawn charge. The other amount of $415 had never been the subject of a charge, and was an uncharged act in this context.
At a pre-hearing mention of the case, the prosecutor then appearing confirmed count 7 had been withdrawn.[102] The prosecutor told the trial Judge that anything that took place outside of the charged dates was irrelevant and there was “no need for the prosecution to lead evidence as to when Ms Tun finished work with Prodigy Painting”.[103] Counsel for the appellant was adamant that he wanted to cross examine the alleged victim as to who had made those payments on 7 April 2015 and why.[104] He was also adamant that the records to be produced by the Crown must go to all of the transactions between the parties. This was relevant to the appellant’s case because she was no longer working for Prodigy on 7 April 2015 and therefore, it must have been someone else who transferred the money and she had said as much in her record of interview.
On my reading of the transcript at the commencement of the hearing proper, the prosecution did not open on the 7 April 2015 transfers. The only reference to the 7 April 2015 in Mr Tsounias’ evidence in chief was that he said it was this transaction which aroused suspicions and between himself and Ms Morgan, a decision was made to report the matter to police. That evidence was not objected to. This was also in his statement, tendered by defence counsel.[105] It was not a tactical decision not to object. This was the evidence the appellant wanted before the Court because it was the appellant’s case that the transfers of 7 April showed Mr Tsounias had framed or set her up all along. This was an important part of the appellant’s case. It was important on the appellant’s case to cast doubt on Mr Tsounias’ testimony that he did not authorise the transfers.
The 7 April 2015 transactions, in particular the $500 from the withdrawn charge, was the subject of extensive cross examination by the appellant’s counsel.[106]
This would be expected as it was a major part of the defence case. Rather than a suggestion that this may go to counsel’s competence as was submitted by the appellant in reply,[107] from what is known of the appellant’s case alleging a setup, counsel was obliged to explore these matters if he was to properly put her case.
On the first day of the hearing, defence counsel asked Mr Tsounias “Now it’s an agreed fact, how do you explain the payment on 7 April 2015 of $500 from Prodigy Painting 3562 to Daphne’s account 6431, on 7 April, $500, because Daphne wasn’t working for you then”.[108]
Starting from there, Mr Tsounias was cross examined exhaustively about who could have transferred the money. He remembered finding the record of the transaction. He remembered she had said she was coming back from Jabiru to fix something or adjust something on the computer.[109] He was cross examined about whether the appellant still had a key or had returned it and how she left on good terms.[110] When Mr Tsounias was recalled by the appellant, he was again cross examined on the same subject[111] and his statement tendered by counsel for the appellant referring to the transactions and relevant banking records.[112]
The record of interview, exculpatory in nature, was tendered by the prosecutor without objection. The appellant told police she no longer worked at Prodigy at that time, suggesting she finished by the second of April and left for Burma on the ninth. Then she said “I couldn’t come into work”. Asked by police “So you, payment number nine dated the seventh of April, you’re saying you couldn’t have made that, you weren’t in Australia?” “I didn’t make that. You bastard”.[113] In relation to the $405 payment of the same date the appellant told police “I didn’t make that, either. I wasn’t – I wasn’t even there to make it”.[114]
This was all evidence counsel for the appellant used to weaken the Crown case. From the way the prosecution conducted the case, it cannot be said this was evidence adduced by the prosecutor for a tendency or coincidence purpose. In any event, it was not used for a tendency or coincidence purpose. It was used by the prosecution for credit purposes, to demonstrate Ms Tun could not be believed because she lied.
The banking records evidence surrounding the transactions that showed her banking and shopping activities before or after each impugned transaction, including banking in a manner to top up accounts to make round figures, is drawn directly from the records. Inferences may properly be drawn from evidence of that kind. It is in the nature of evidence of a system, in terms of a system of banking from which in particular instances, an inference can be drawn that the same system was engaged to complete the impugned transactions.
This has similarities with the analysis by Sackville J in Jacara Pty Ltd v Perpetual Trustees WA Ltd of dealing with evidence of systems:[115]
If for example, the evidence in a shopping centre misrepresentation case shows that the lessor's agent gave instructions that particular representations should be communicated to prospective tenants, that evidence would [not be tendency evidence]. The evidence, if accepted, would go beyond proving that the agent had a propensity to make representations of the kind alleged. Rather, it would establish that the' agent had set in place a system which, if implemented in 'the particular case, would have resulted in the representation being made to the applicant. The existence of the system, in the absence of evidence to the contrary, readily supports an inference that it as implemented in the particular case. The evidence of the system makes it more likely that the fact in issue (the making of the representation to the applicant) occurred, independently of the vent's propensity to act in a particular way.
The relevant evidence did not rely on tendency or coincidence reasoning. The impugned evidence was a core part of the appellant’s case.
Orders
1.The appeal is dismissed.
2.The application for leave to amend by the addition of proposed ground 5 is refused.
3.I will hear the parties on costs.
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[1] The parties requested the matter proceed initially on the limited basis that the Court rule solely on grounds 1-3. Grounds 1-3 are set out at [4].
[2] Transcript of proceedings, Han Thu Tun v Anne Bryant (Northern Territory Supreme Court, LCA 12 of 2018, 19 November 2018) at 1-4.
[3] The Amended Notice of Appeal was filed on 15 June 2018. On 27 June 2018 following a directions hearing, Hiley J made 11 procedural orders including directions on the issue of a subpoena to Epiq Australia Pty Ltd and the filing of fresh evidence. Written submissions and affidavits relevant to ground 4 were filed between 25 June 2018 and 13 September 2018. On 30 August 2018, further orders were made relevant to particularising and identifying transcript relevant to ground 4, including the identification of disputed material. The appellant filed further affidavit material relevant to ground 4 on 13 September 2018.
[4] The ‘Proposed Second Amended Notice of Appeal’ adds proposed ground 5, filed with the application for leave to appeal, on 19 November 2018.
[5] M v The Queen [1994] HCA 63; 181 CLR 487.
[6] SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]; GAX v The Queen [2017] HCA 25; 344 ALR 489 at [25]; Pell v The Queen [2020] HCA 12.
[7] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 February 2018) at 116-123.
[8] [1994] HCA 63; 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ.
[9] MFA v R [2002] HCA 53; 213 CLR 606 at [25]-[26] per Gleeson CJ, Hayne and Callinan JJ; SKA v The Queen (2011) 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ. This summary of the relevant principles is largely drawn from the recent discussion of the principles in Lynch v The Queen [2020] NTCCA 6.
[10] Pell v The Queen [2020] HCA 12 at [39].
[11] M v The Queen [1994] HCA 63; 181 CLR 487 at 494.
[12] The charges initially stated ‘Australian Currency’ of various amounts as the thing that was stolen. This was amended to “a thing in action” to reflect the transfer and theft was from a bank account, rather than cash. Initially the owner was stated to be ‘Prodigy Painting’ but was amended to reflect the owner, Peter Tsounias, trading as Prodigy Painting.
[13]Proposed Second Amended Notice of Appeal filed 19 November 2018.
[14] Exhibit P1, Agreed Facts, CBA accounts 5901 10535 762 and 5901 1069 1394 respectively.
[15] CBA Account number 3001 10336431 was the appellant’s Smart Access account she held a further account with Netbank access bearing client number 31937065, linked to the Smart Access account.
[16]Exhibit P1, Agreed Facts at [4].
[17] Exhibit 9.
[18] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 10.
[19] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 11.
[20] The prosecutor opened on “$10,000”, however that amount required adjustment because charge 9, which charged $500 had been withdrawn. There was a further transfer of $405 on 7 April 2015, which was not the subject of a charge.
[21] Exhibit P11.
[22] Exhibit 17, Statement of Aaron Piermont at 26-28; 30.
[23] Exhibit 8 at [18]-[27].
[24] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 February 2018) at 121-122.
[25] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 14.
[26] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 15.
[27] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 17.
[28]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 15.
[29] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 16.
[30] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 16.
[31] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 17.
[32] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 24.
[33] Exhibit 5.
[34] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 27.
[35] Exhibit 1, Agreed Facts at [5].
[36]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 17.
[37]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 17.
[38]Exhibit 8 at [18] – [21].
[39]Exhibit 3, Account identification number 590110535762 at 20-21.
[40] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 21-22.
[41]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 22.
[42]Exhibit 4, List of transactions to account number 590110691394 at 22-23.
[43]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 28.
[44]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 29.
[45]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 30-31.
[46] Exhibit 5.
[47]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 32-33.
[48]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 67.
[49]Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 69-70.
[50] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 72.
[51] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 54.
[52] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 54.
[53] Exhibit 5; Exhibit 7.
[54] Exhibit 5.
[55] Exhibit 5.
[56] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 65.
[57] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 66.
[58] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 49.
[59] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 62.
[60] Exhibit 2.
[61] Exhibit 2.
[62] Exhibit 11.
[63] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 22 November 2017) at 120.
[64] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 22 November 2017) at 134.
[65] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 22 November 2017) 76.
[66] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 19 February 2018) at 19.
[67] Exhibit P13.
[68] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 November 2017) at 114.
[69] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 November 2017) at 115.
[70] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 38-39.
[71] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 February 2018) at 119.
[72] Appellant’s outline of submissions on appeal against conviction filed on 17 June 2018 at [26].
[73] Appellant’s outline of submissions on appeal against conviction filed on 17 June 2018 at [29]-[32].
[74] Appellant’s outline of submissions on appeal against conviction filed on 17 June 2018 at [31].
[75] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 20 February 2018) at 52.
[76] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 4 April 2017) at 8.
[77] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 19 February 2018) at 30.
[78] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 20 February 2018) at 61.
[79] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 November 2017) at 68.
[80] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 November 2017) at 113.
[81] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 February 2018) at 122.
[82] Exhibit P9.
[83] Exhibit 17.
[84] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 February 2018) at 120-121.
[85] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 19 February 2018) at 9-15.
[86] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 February 2018) at 120.
[87] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 February 2018) at 120-121.
[88] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 21 February 2018) at 116-118.
[89] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 19 February 2018) at 4-5.
[90] Criminal Code 1983 (NT) s 30(2).
[91] Proposed Second Amended Notice of Appeal filed 19 November 2018, Particulars (c)(i)-(iii).
[92] It is convenient to draw form the summary of the Respondent’s Outline of Submissions on Ground 4 at [31] and annexure.
[93] Referred to in the appellant’s outline of submissions on appeal against conviction filed 17 June 2018, citing transcript, 17.5.17, P5.
[94] Appellant’s outline of submissions on appeal against conviction filed 17 June 2018 at 57, citing transcript 17.5.17, P6.
[95] Appellant’s outline of submissions on appeal against conviction filed on 17 June 2018 at [64]-[65].
[96] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 24 May 2017).
[97] [1984] HCA 38; 154 CLR 563.
[98] [1983] HCA 42; 152 CLR 657; Ziems v The Prothonotaryof the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279.
[99] (1991) 57 A Crim R 425.
[100] [2020] HCA 23.
[101] Nguyen v The Queen [2020] HCA 23 at [33]-[36] per Kiefel CJ, Bell, Gageler, Keane, Gordon.
[102] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 1 February 2017) at 3.
[103] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 1 February 2017) at 3.
[104] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 1 February 2017) at 3-4.
[105] Exhibit 8.
[106] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019).
[107] Appellant’s Submissions in Reply Re: Grounds 2 and 3 and new ground, 5 filed on 25 February 2019 at 14-16.
[108] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 84.
[109] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 86.
[110] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 2 March 2017) at 86-87; Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 3 March 2017) at 118-124.
[111] Transcript of proceedings, Police v Han Thu Tun (Northern Territory Local Court, 21622019, 3 March 2017) at 118-124.
[112] Exhibit 8.
[113] Exhibit 11 at 19.
[114] Exhibit 11 at 19.
[115] [2000] FCA 1886; 106 FCR 51 at [67].
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