Van Voskuilen v Rigby
[2023] NTSC 86
•28 September 2023
CITATION:Van Voskuilen v Rigby [2023] NTSC 86
PARTIES:VAN VOSKUILEN, Tiffany Jade
v
RIGBY, Kerry Leanne
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 8 of 2022 (21933309)
DELIVERED: 28 September 2023
HEARING DATE: 25 September 2023
JUDGMENT OF: Kelly J
CATCHWORDS:
Supreme Court Act 1979 (NT), s 51(1)
Criminal Code, s 210, s 210(1), s 210(2), s 410(c), s 417(1), s 417(2)
Chamberlain v the Queen (No 2) [1984] 153 CLR 521; Dansie v The Queen [2022] HCA 25, (2022) 96 ALJR 728; Diehm v DPP (Nauru) [2013] HCA 42; Dyers v The Queen (2002) 210 CLR 285; House v The King [1936] HCA 40, (1936) 55CLR 499; Jones v Dunkel (1959) 101 CLR 298; Libke v The Queen [2007] HCA 30, (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Markarian v The Queen [2005] HCA 25; MFA v The Queen (2002) 213 CLR; Park v The Queen [2021] HCA 37; PW v The Queen [2020] NTCCA 1; R v Apostilides (1984) 154 CLR 563; R v Bird (1988) 56 NTR 17; R v Hillier (2007) 228 CLR 618; R v Verdins [2007] VSCA 102; R v Yaldiz [1998] 2 VR 376; Richardson v The Queen (1974) 131 CLR 116; Rigby v Benfell [2020] NTCA 9; Whitehorn v The Queen (1983) 152 CLR 657, referred to
REPRESENTATION:
Counsel:
Appellant:J Tippett KC with L McLaughlin
Respondent: I Rowbottam
Solicitors:
Appellant:Maleys Barristers and Solicitors
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Kel2306
Number of pages: 34
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINVan Voskuilen v Rigby [2023] NTSC 86
No. LCA 8 of 2022 (21933309)
BETWEEN:
TIFFANY JADE VAN VOSKUILEN
Appellant
AND:
KERRY LEANNE RIGBY
Respondent
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 28 September 2023)
The appellant was found guilty, following a trial in the Local Court, of one count of stealing $50,000. She appeals against that conviction on the following grounds:
(a)that the verdict of guilty is unreasonable and cannot be supported by the evidence;
(b)that the trial judge erred in failing to properly direct himself in relation to the circumstantial evidence that was before the court; and
(c)that the trial judge erred in failing to properly direct himself in relation to the Crown’s failure to call a material witness identified in the case.
The appellant also appeals against the sentence of imprisonment for one year and ten months suspended after six months imposed by the trial judge on the ground that the sentence was manifestly excessive, contending that the judge erred by not exercising his discretion to order the appellant to serve any period of actual imprisonment by way of a Home Detention Order.
Background
On 28 March 2022, the appellant pleaded not guilty in the Darwin Local Court to the following charges:
Count 1 - Did steal $50,000 in Australian Currency, the property of Travel Money Oz on or about 18 July 2018
Contrary to section 210 of the Criminal Code
Count 2 - Did steal $10,000 in Australian Currency, the property of Travel Money Oz between the 16th July 2018 and 29th October 2018
Contrary to section 210 of the Criminal Code
On that date, the Crown withdrew count 2 against the appellant and elected to withdraw both counts against the alleged co-offender, Ms Richards, who had been jointly charged with the appellant.
The hearing then proceeded on 28 March 2022 and finalised on 30 March 2022 on which date the trial judge found the appellant guilty of count 1. The appellant was then granted bail and the matter adjourned for sentencing, which ultimately finalised on 26 October 2022.
The facts as found by the trial judge
The trial judge summarised the evidence, making findings in relation to credit favourable to the witnesses from the defrauded company Travel Money Oz, the security company Armaguard, and Westpac Bank, giving brief but adequate reasons for those findings of credit. The evidence, (summarised from the transcript of the judge’s reasons and rearranged in chronological order), was as follows.
(a)Travel Money Oz is a foreign exchange company. On Tuesdays the staff check the amount of foreign currency and Australian currency in stock. If there is too much Australian currency it is sent back to the bank. Money is taken out of the safe and counted by a counting machine. The procedure is to count the money above the safe in view of the cctv cameras.
(b)The staff then put the money into a sealed Westpac bag and put it in a safe. The amount in each bag is written on the bag and also in a deposit book which is placed inside the bag.
(c)On Wednesdays, the Westpac bags are inspected to ensure the seal has not been opened, torn or tampered with and then the bags are placed inside an Armaguard bag ready for collection. The Armaguard guards arrive and are handed the bags. The Travel Money Oz staff tell them how much is in each bag, a receipt is prepared by the Travel Money Oz staff and signed by the Armaguard guards. The Armaguard guards do not open the bags. They place the bags in the truck and take them to a Westpac branch where Westpac staff record in their system the amount on the receipts. The Armaguard bags each have a unique number and are tamper-proof. There is cctv covering the Armaguard vans and the office.
(d)The bags are collected from Westpac, opened, and the money in the bags is counted by Prosegur, a funds transit company (the second biggest in the world). They will not process a bag if it has been tampered with.
(e)On 18 July 2018 $50,000 went missing from Armaguard bag 795400. The stubs for the receipts for that day indicate that there were three Westpac bags in Armaguard bag 795400, containing $50,000, $20,000 and $45,000 (a total of $115,000). The banking docket on the outside of the Armaguard bag indicated that there was $115,000 in total in Armaguard bag 795400.
(f)The appellant and her sister, Ms Richards, were in the room when the money was counted that day, but it was the appellant who was counting the money and undertaking the process of putting it into three secured, tamper-proof bags. The appellant did not count the money above the safe in view of the cctv cameras in accordance with the store’s procedures. The cctv footage showed the appellant counting the money on the adjoining counter with her back obscuring what she was doing from the cameras.
(g)The cctv footage showed the appellant take some scissors, cut a bag and crumple a plastic bag. It also shows her doing something else with the money but what that is was not shown.
(h)That day, when the Armaguard guard went to the store to collect the money, he was given the bag and a yellow slip on which was written “$115,000” in the appellant’s hand. This transaction was shown on cctv footage which was received in evidence.
(i)Because there were three receipts, according to normal procedure, there should have been three Westpac bags inside Armaguard bag 795400. However, on 18 July there were only two Westpac bags, one of which was marked as containing $70,000 and one of which was marked as containing $45,000.
(j)According to their normal practice, on the faith of the deposit slips inside the bag, a Westpac staff member credited the amounts on the slips, namely $70,000 and $45,000 to the Travel Money Oz account.
(k)However, when Prosegur staff later opened the bags, they found that there was only $20,000 in the $70,000 bag, the discrepancy was notified and Westpac debited $50,000 from the Travel Money Oz account.
(l)A store audit was performed by Travel Money Oz on 19 July. The $50,000 was not located.
(m)The relevant transactions on the system showing $115,000 purportedly placed in the bags for banking were entered under the code of the appellant. (Each employee has his or her own individual code. It was theoretically possible for another employee to log in using the appellant’s code but the appellant was shown on cctv counting the money and she made out and signed the receipts and deposit slips.)
(n)There was evidence from a number of witnesses that $70,000 in Australian currency would not fit in the bag which turned out to contain only $20,000.
(o)On the basis of these findings, the trial judge was satisfied beyond reasonable doubt that:
· on 18 July 2018 $115,000 excess Australian dollars transferred from the store;
· the appellant wrote $115,000 on a slip and gave it to the Armaguard guard;
· there were three receipts totalling $115,000 with the tamper-proof bag;
· the appellant wrote these receipts;
· there were two Westpac deposit slips one for $45,000 and one for $70,000 in the bag, not three as per the stubs (ie the stubs for the receipts for that day indicating that there were three Westpac bags in Armaguard bag 795400, containing $50,000, $20,000 and $45,000);
· the appellant wrote the deposit slips;
· the money in the bag didn’t match the stubs or the deposit slips;
· the deposit slips and the two Westpac bags were placed in the tamper-proof Armaguard bag by the appellant;
· one of the Westpac bags contained $20,000 and one contained $45,000;
· $70,000 would not fit into the Westpac bag containing the $20,000;
· the appellant took the missing $50,000.
The appeal against conviction
Gound 2
The appellant contends that the trial judge failed to properly direct himself on circumstantial evidence. The appellant relies on Chamberlain v the Queen (No 2)[1] for the proposition that in circumstantial cases, the Crown must exclude all other reasonable hypotheses consistent with innocence and, in written submissions, quoted the following passage from R v Hillier:[2]
It has often been said that a jury cannot be satisfied beyond a reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
The appellant submits that the following hypotheses consistent with innocence were open on the evidence.
(a)The money could have been lost or thrown out.
(b)The loss of the money could be attributed to an accounting error.
(c)The money could have been lost or misplaced at any point in the lengthy chain of custody.
The trial judge directed himself in relation to circumstantial evidence in the following terms.[3]
… This is a circumstantial case, as fought in Chamberlain (No. 2), Chief Justice Gibbs, Mason, Murphy, Brennan and Deane, quite rightly quoted by counsel:
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless, the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case circumstances must exclude any reasonable hypothesis consistent with innocence.
There can – and she quotes the House of Lords, I think it is – Barca v The Queen, quoting the House of Lords:
There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish,” is obviously as true of criminal as of civil cases. The process of reasoning in a case of circumstantial evidence gives rise to two chances of error: “First from the chances of error in each fact or consideration forming the steps and second from the chance of error in reasoning to the conclusion.” It seems to us an inescapable consequence that in a criminal case the circumstances from which the interference should be drawn must be established beyond reasonable doubt. We agree with the statement in R v Van Beelen that it is “An obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt.
…
This direction was unexceptional and discloses no error.
Further, his Honour engaged with the hypotheses said to be reasonably consistent with innocence put forward by defence counsel in closing submissions. These were not precisely the same as those now urged by the appellant. The trial judge could only deal with the submissions made to him by defence counsel.
(a)Defence counsel submitted that there was a discrepancy in the evidence in that one of the witnesses from Travel Money Oz said that there had been $165,000 dispatched from the store that day. Defence counsel also submitted that there was evidence that on 18 July, Armaguard, contrary to procedure, dropped off a consignment of foreign currency, loose and unbagged, totalling about $50,000 which likely came from Travel Money Oz. The trial judge said of these submissions:
True it is that Mr Roper said $165,000 was the amount in the store at that day. Having seen the paperwork I am satisfied that is an error. True it also is that on the day loose currency, possibly something in the amount of the amount charged, in foreign denominations were delivered loose in error to Westpac Darwin, the same Westpac branch from one of the Money Oz stores. Again I don’t consider that to be of relevance in this process. And it does not give me concern. These amounts are all in Australian dollars. The deposit is all in purportedly Australian dollars to Westpac who can only receive Australian dollars from this customer. That is their commercial arrangement. That is what this entire transaction concerned, only Australian dollars. So, again I don’t consider a matter which gives me cause for thought.[4]
In any event, as the trial judge noted elsewhere in his judgment, the evidence was that Travel Money Oz staff went to the Westpac branch and collected the foreign currency minutes after it was received in error.
(b)Defence counsel also submitted that the lengthy chain of custody and the absence of cctv footage of some of the steps in that chain gave rise to a reasonable doubt. The trial judge dealt with this submission by making supported credit findings in relation to the witnesses who gave evidence in relation to each step in the chain and, on the basis of that evidence, making findings that were inconsistent with the defence hypothesis that something untoward may have happened during that process.
The trial judge’s process of reasoning reveals no error. Further, the evidence of the Travel Money Oz, Armaguard and Westpac witnesses, which was accepted by the trial judge, concerning the process of sending the money to the bank; and the cctv footage; leads to the inescapable conclusion that none of the hypotheses consistent with innocence suggested by the appellant is reasonably open on the evidence.
The money cannot have been simply lost in the store and nor can the loss have been the result of an accounting error despite the evidence of the store manager, relied on by the appellant, that money is sometimes lost and accounting errors do sometimes happen. In this case, the appellant made the relevant entries in the store system and counted the money. She represented by means of the receipts and deposit slips, and the slip she handed to the Armaguard guard, that there was $115,000 in the Armaguard bag. Further, she represented on the deposit slip that there was $70,000 in a bag that contained only $20,000 and could not fit $70,000.
This evidence is also incompatible with the money going missing in what was described as the lengthy chain of custody, as is the evidence that the bags were tamper-proof and would not have been accepted at any stage of the process if there had been any sign of attempted tampering.
This ground of appeal must fail.
Ground 3
The appellant contends that the trial judge erred in failing to properly direct himself in relation to the Crown’s failure to call a material witness identified in the case.
The Crown did not call Ms Richards, who had been present in the room when the appellant counted the money, placed it in the bags and wrote the receipts and deposit slips.
The appellant submits that the unexplained failure by the Crown to call Ms Richards in its case gives rise to a reasonable doubt about the guilt of the appellant and/or an inference that the evidence of Ms Richards would not have assisted the Crown’s case.[5]
As the appellant fairly pointed out in written submissions, the High Court in Dyers v The Queen[6] restricted the application of Jones v Dunkel[7] as it applies to defendants in a criminal trial, saying:[8]
As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi. As a general rule then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused.
The court in Dyers also sounded a cautionary note in relation to the application of the principle to the Crown:[9]
Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called a person to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.
The appellant contends that the failure to call Ms Richards was a failure by the prosecution to call all material witnesses, and so the trial judge ought to have directed himself that the evidence of Ms Richards would not have assisted the Crown case. In support of this submission, the appellant relies on MFA v The Queen,[10] a case in which the appellant contends the High Court approved a full Jones v Dunkel direction adverse to the Crown because the prosecution had not called relevant witnesses, who they believed “were in the camp of the accused”.[11]
In MFA, the question raised by the appeal is whether the Court of Criminal Appeal of New South Wales erred in the manner in which it dealt with a contention that, in a case of multiple counts, verdicts of guilty on two counts were unreasonable having regard to the evidence in relation to those counts and having regard to verdicts of not guilty on the remaining counts. It did not directly concern the question of whether the trial judge erred in giving a Jones v Dunkel direction in relation to the failure to call two witnesses who were allegedly present when some of the offences were said to have occurred. That was not an issue on the appeal.
The appellant had been charged with nine offences of a sexual nature against a male complainant, over four separate occasions. The jury returned verdicts of not guilty on counts 1 to 6 and count 9. They returned verdicts of guilty on counts 7 and 8 which were alleged to have occurred on the third of the four occasions.
The appellant appealed on a single ground:
The verdicts of guilty on counts 7 and 8 are unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 1, 2, 3, 4, 5, 6 and 9.
The New South Wales Court of Criminal Appeal dismissed the appeal, holding that it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant on counts 7 and 8 and that decision was upheld in the High Court.
In their joint judgment, Gleeson CJ, Hayne and Callinan JJ gave the following analysis of what had occurred at the trial.[12]
Neither Hendrik Bosman nor the two juveniles who were allegedly present on the second occasion gave evidence. The judge, in his summing-up to the jury, took them in detail through the evidence in relation to each count. He pointed out that there was no evidence to confirm or support what the complainant said in relation to the first, second or fourth occasions. He examined closely the evidence of the complainant and MA in relation to the third occasion, and pointed out the similarities and the inconsistencies. He said that it would be a matter for the jury, upon a consideration of the detail of the evidence, to decide whether they were satisfied that the evidence of MA supported or confirmed the evidence of the complainant.
At the request of counsel for the appellant, the judge reminded the jury that, according to the complainant, other persons had been present on the occasions the subject of counts 1 to 6, and that they had not been called as witnesses. At that stage, the judge said that the only inference that could be drawn was that those persons would not add anything to the evidence that had been presented. After the jury retired to consider their verdict the jurors sent a note to the trial judge expressing a wish to be told why Mr Bosman and the two other juveniles had not been called to give evidence. In the absence of the jury, the prosecutor informed the trial judge that Mr Bosman himself was to stand trial for similar offences in a short time, and that the view had been formed that the two juveniles were not reliable witnesses. The judge recalled the jury and responded to their question by pointing out that there was no evidence to indicate whether or not the three persons to whom they had referred were available. After some prompting by counsel for the appellant, the judge then went on to tell the jury that they could draw the inference that, because those persons had not been called to give evidence, their evidence would not have assisted the prosecution case. This was a Jones v Dunkel direction.
In due course, the jury returned verdicts of not guilty on counts 1 to 6, and 9, and guilty on counts 7 and 8.
As the judge observed in his remarks on sentence, the most likely explanation of the differences in the verdicts is that the jury took the view that, notwithstanding the fact that there were inconsistencies between the evidence of MA and the complainant in relation to counts 7 and 8, the evidence of MA was substantially supportive of the complainant, and that counts 7 and 8 were the only counts in which the complainant’s evidence was supported by another witness. Furthermore, in relation to counts 1 to 6, not only was the evidence of the complainant unsupported, but the judge told the jury that they could infer that if the other persons said by the complainant to have been present had been called as witnesses, their evidence would not have assisted the prosecution case. In relation to count 9, the other person present on the occasion, MA, said that he went to sleep and saw nothing.
This is simply a description of what occurred as a prelude to deciding whether the guilty verdicts on counts 7 and 8 were unreasonable in light of the not guilty verdicts on counts 1 to 6 and 9. It did not amount to an endorsement of the trial judge’s direction. In reaching their conclusion Gleeson CJ, Hayne and Callinan JJ said:
The test established by s 6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency. In the present case, there is an obvious explanation of the differences between the verdicts on the various counts in the indictment. The jury might reasonably have considered that, notwithstanding the differences between the evidence of the complainant and MA, and making due allowance for the age of MA, and the possibility of some confusion on his part, the evidence of the complainant in relation to the occasion the subject of counts 7 and 8 gained significant support from the evidence of MA. There was no such support in relation to any of the other counts; and in relation to counts 1 to 6 there was the unexplained absence of evidence from people who were said to be eye-witnesses, and the resulting Jones v Dunkel warning. In those circumstances, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on two counts notwithstanding their unwillingness to convict him on the others.
Again, this is descriptive. It does not amount to an endorsement of the direction given by the trial judge.
Although differing with Gleeson CJ, Hayne and Callinan JJ as to whether the New South Wales Court of Criminal Appeal had applied the correct test for reasonableness, McHugh, Gummow and Kirby JJ agreed that the appeal should be dismissed. In obiter, their Honours did comment favourably on the direction given by the trial judge in the following terms:[13]
Failure to call witnesses: A third consideration relied on by the appellant arose out of a question which the jury asked. This related to the failure of the prosecution to call two brothers, cousins of the complainant, as well as the occupant of the residence adjoining which the caravan was situated when the incidents, the subject of counts 7 and 8, were alleged to have taken place. The jury asked why those witnesses “were not called by either legal side”.
The three witnesses were not specifically relevant to the events alleged in counts 7 and 8 that were said to have taken place within the caravan in which only the appellant, the complainant and MA were alleged to have been present. However, the missing witnesses were directly relevant to the alleged offences the subject of counts 4, 5 and 6 of the indictment, of which the appellant was acquitted. The explanation given by the prosecutor, in the absence of the jury, for the failure to call these witnesses was that, on his instructions, they were “in the camp of this accused ... In other words, they are not persons whom the Crown would place any weight upon for the reason that they seem to be unreliable.”
This statement by the prosecutor may suggest a misapprehension concerning the ordinary duty to place before a jury all relevant and material evidence concerning a charge. It is not the law that a witness is to be treated as “unreliable” simply because he or she is “in the camp of” the accused. Had the appellant been convicted of the offences to which the three witnesses related, this apparent error might have been reason enough for this Court to consider relief upon that ground. However, the trial judge gave the jury correct directions concerning the failure of the prosecution to call the witnesses. Those directions were not, ultimately, the subject of any complaint in the appeal. The jury appear to have approached the absence of those witnesses in a sensible way, in accordance with the judge’s directions. They found the appellant not guilty on the relevant counts.
Those comments were made about the contention by the prosecutor in that particular case, ‘that, on his instructions, [the witnesses in question] were “in the camp of this accused ... In other words, they are not persons whom the Crown would place any weight upon for the reason that they seem to be unreliable.’” That is to say, the prosecutor was saying that the witnesses were unreliable for the reason that they were “in the camp of the accused”; and the response of McHugh, Gummow and Kirby JJ was: “It is not the law that a witness is to be treated as “unreliable” simply because he or she is “in the camp of” the accused.”
In R v Apostilides[14] the Court said:
We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia:
1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor’s reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
These principles were affirmed by the High Court in Diehm v DPP (Nauru).[15]
In Whitehorn v The Queen[16] Dawson J said:
In Richardson v The Queen [(1974) 131 CLR 116], this Court pointed out that although the choice made by a Crown Prosecutor of the witnesses to be called in support of the Crown case may be said to involve the exercise of a discretion, that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial. It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor.
Nevertheless, there is good guidance in the cases for which constitutes a material witness. All 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. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court. [emphasis added]
In the present case, defence counsel submitted:
...[I]n a case such as this you would expect that the Crown would call all material witnesses, which could exclude other reasonable hypotheses consistent with innocence, however they have not. As you will note, the original co-offender[17] Ms Richards, who has been named and identified in the CCTV played by the Crown and mentioned time and time again in the record of interview by Ms Van Voskuilen is clearly present during the handling of the money and packaging – what the Crown hinges much of its case on – well she was never called.[18]
That was followed by the following exchange.
HIS HONOUR: That’s the person that sat, the sister of the defendant who sat with her through this proceeding by her side the entire proceeding. Do you criticise the Crown for not calling her?
DEFENCE COUNSEL: I do, your Honour.
HIS HONOUR: Thank you.
Dealing with this submission in his reasons, the trial judge said:
And it’s been put by counsel in this case that there should be an adverse inference or even a doubt raised about guilt as a result of a failure to call the person that was – up until shortly, alleged co-offender – Haley Richards, the sister of the defendant in evidence. She is, clearly, a material witness. She clearly was present at the alleged time of the offending. You can see her talking consistently to her sister, the manager, through the footage. She was a co-offender right up until this hearing.
I was expecting this to be a jointly-defended matter. Charges were withdrawn. For their own reasons, the prosecutor elected not to call her in evidence and she sat dutifully by her sister’s side throughout the proceedings. So obviously, the defence need prove nothing and the onus is on the prosecutor to call all material witnesses that they consider are proper to call – appropriate to call, having made their own enquiries.
And it’s not for the court to go behind that and only read things at first blush. And of course, this assessment is to be made on each individual case on how it’s run, how it’s put together, how it’s sought to be proved. And this is a case where it’s said that, effectively, by dent (sic) of the paperwork filled out by the defendant and what she did and the transactions undertaken on that day, that guilt can be proved.
It would seem to me, the nature of this case and how it’s prosecuted and what I view before me in terms of how the case was jointly defended right up until the doorstep, it would seem to me not a matter of criticism, when I see how the case is put, that that witness is not called. And she’s obviously available for both sides to call. She wasn’t called and I don’t – in my assessment, given how the case has been put, it’s not a matter which causes me concern for an injustice which I am always watching carefully when material witnesses are called, especially when they’re available.[19]
In my view, the trial judge was not in error in holding that the failure by the Crown to call Ms Richards did not lead to any injustice. This was not a case where the Crown judged the witness to be unreliable “simply because” she was “in the camp of” the accused.[20] There was far more to it than that, as pointed out by the trial judge in the paragraph above. In my view, the prosecutor was not in breach of his duty of fairness in deciding not to call Ms Richards in the circumstances.
If I am wrong in that, it does not seem to me in any event that, when viewed against the conduct of the trial taken as a whole, including the weight of the evidence against the appellant, the failure to call Ms Richards could be seen as giving rise to a miscarriage of justice.[21]
Ground 1
The appellant contends that the verdict of guilty is unreasonable and cannot be supported by the evidence.
The principles to be applied in appeals on the ground that the verdict is unreasonable and cannot be supported by the evidence are well established and set out by the Northern Territory Court of Criminal Appeal in PW v The Queen[22] in the following terms.
In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
… 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 regard to those considerations.
The plurality explained the application of the test as follows:
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. That is to say, where the evidence lacks “credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
Gaudron J agreed with the majority formulation of the test, as did Brennan J, although Brennan J said that the question as to whether it was “open to the jury” to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was “upon the whole of the evidence ... bound to have a reasonable doubt” or whether “the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused”.
In Libke v The Queen[23] Hayne J (citing the passage from the majority judgment in M v The Queen[24] referred to above) said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
(citations omitted)
The appellant placed reliance on Dansie v The Queen,[25] in which the High Court considered the correct approach of an appeal court considering an appeal against a verdict of guilty by a judge sitting alone as the trier of fact. In that case the Court said:[26]
… [T]he function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.
That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function 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”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.
Consideration
The appellant contends that the evidence in the case contains discrepancies, displays inaccuracies, and otherwise lacks probative force that should lead this Court to conclude, after making full allowance for the advantages enjoyed by the jury, that there is a significant possibility that the appellant is an innocent person.[27] The appellant’s written submissions contained no particulars of this contention.
At the trial, defence counsel relied on the fact that one of the Travel Money Oz employees said that $165,000 had been despatched on the relevant day and another said it had been $115,000. His Honour dealt with that by reference to the records showing that $115,000 had been despatched and noted that the evidence of $165,000 was a mistake. The only other matter relied upon (apart from the failure to call Ms Richards) was the lack of cctv footage of some parts of the chain of custody, it having been taped over as a result of delays.
Essentially for the reasons set out above in relation to grounds 1 and 2, the appellant’s contention in ground 1 cannot be accepted. In my view there are no discrepancies and inaccuracies in the evidence as asserted by the appellant and the evidence did not lack probative value. The evidence against the appellant was cogent and compelling.
The evidence of the Travel Money Oz, Armaguard, Prosegur and Westpac witnesses concerning the process of sending the money to the bank; the cctv footage showing that the appellant counted the money and put it in bags (obscured by her standing in front of the cctv cameras); and the documentary evidence showing that the appellant made the relevant entries in the store system, and prepared the receipts and deposit slips, and the slip she handed to the Armaguard guard, stating that there was $115,000 in the Armaguard bag and that there was $70,000 in a bag that contained only $20,000 and could not fit $70,000, all lead to the inescapable conclusion that it was the appellant who was responsible for taking the missing $50,000.
Having reviewed the transcript of this evidence, I do not entertain any reasonable doubt as to the guilt of the accused. This is not a case where the trial judge ought to have entertained a reasonable doubt, and in my view, there is no significant possibility that an innocent person has been convicted.
The appeal against conviction is dismissed.
Appeal against sentence
Ground 4
Ground 4 of the appeal is an appeal against the sentence imposed on the ground that it is manifestly excessive. Further, the appellant contends that the trial judge erred by not exercising his discretion to order the appellant to serve any period of actual imprisonment by way of a home detention order.
This ground of appeal can be disposed of in short order.
The principles governing manifest excess are well-settled. In the absence of specific and identifiable error, it is necessary for the appellant to show that the sentence was clearly and obviously, and not just arguably, excessive.[28]
An appeal against a sentence is an appeal against the exercise of a discretion by the sentencing judge. That being so, the principles enunciated in House v The King[29] are applicable. In the oft-quoted passage from that decision, the High Court stated:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Beginning with the contention that the trial judge erred by not exercising his discretion to order the appellant to serve any period of actual imprisonment by way of a home detention order, that contention cannot be accepted. The appellant has not pointed to any wrong principle acted on by the sentencing judge or to any extraneous or irrelevant factors which affected the judge’s decision, or any material consideration which the sentencing judge failed to take into consideration. There can be no expectation that a sentencing judge will order home detention simply because a report from Community Corrections assesses an offender as suitable for home detention. The sentence imposed is at the discretion of the judge – not the corrections officer.
Therefore, in order to succeed, the appellant must show that the decision to impose a sentence of actual imprisonment is so unreasonable or plainly unjust that a substantial wrong has occurred.
In written submissions, the appellant relied on the following matters in support of the submission that a sentence of actual imprisonment ought not to have been imposed:[30]
(a)the fact that the appellant had been found suitable for home detention;
(b)the fact that she had no prior convictions;
(c)the fact that she was the primary caregiver for her elderly mother and three children;
(d)the fact that she was currently employed; and
(e)her diagnosis of Asperger’s; the fact that she required treatment for Post-Traumatic Stress Disorder, generalised anxiety disorder, panic disorder, and obsessive compulsive disorder; and had met the threshold
for Major Depressive Disorder.[31]
The appellant submitted that the diagnoses of these mental conditions engaged the principles in R v Verdins.[32]As the Victorian Court of Appeal said in Verdins:[33]
It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the Court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence.
Having said that, the Court explained that, depending on the nature of the mental condition in question, such a condition may reduce the moral culpability of an offender in a number of ways, including:
(a)impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.[34]
The psychological report relied upon by the appellant did not report that any of these factors was operating on the appellant in relation to the offending. Further, the offending was not such as could aptly be described as impulsive; rather it appeared planned.
A mental disorder may also decrease the importance to be placed on general deterrence,[35] but it does not seem to me, from a reading of the Psychological report, that this would be particularly the case with the present offending and the appellant’s mental conditions. The existence of a mental disorder does not automatically exclude general deterrence altogether as a sentencing consideration. As Winneke ACJ explained in R v Yaldiz:[36]
It is not appropriate to simply fasten on to the words ‘recognised psychiatric disorder’ and then, without reference to the symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.
It should be borne in mind that the appellant’s “diagnoses” were made in response to a questionnaire; they were not the subject of pre-existing medical diagnoses; there is nothing in the Psychological report which suggests the existence of such a significant mental disorder as to render the appellant an inappropriate medium for making an example to others, and the nature of the offence is such that general deterrence is a very important consideration. Accordingly, in my view, the degree to which general deterrence ought to have been moderated as a sentencing consideration because of these mental conditions, was not substantial.
Nevertheless, it may be accepted that to some extent, prison would be more onerous for a person with these mental conditions than for a person without those conditions.
So far as the fact that the appellant is the sole caretaker for her mother and children is concerned, hardship to family members is almost inevitable on the imposition of a prison sentence and is not a relevant consideration for a sentencing judge unless the hardship is extreme.[37]
In my view, taking into account the factors relied upon by the appellant as demonstrating that a sentence of actual imprisonment was not warranted, the appellant has nevertheless failed to show that the decision to impose a sentence of actual imprisonment is so unreasonable or plainly unjust that a substantial wrong has occurred. It was plainly within the trial judge’s sentencing discretion to impose a sentence of actual imprisonment, not suspended on the entry into a home detention order. Indeed that would be the expected disposition in a case of this nature. As the Court of Criminal Appeal said in R v Bird:[38]
The matters to be taken into account and the approach in this jurisdiction to sentencing for offences involving breach of trust by employees are reasonably clear, but may conveniently be restated. In general, lest the circumstances are very exceptional or the amount of money involved is small, a sentence of immediate imprisonment is the most usual and expected punishment in such cases. The sentence, and that part of it which is directed to be served, must be sufficiently substantial to indicate to the public the gravity of the particular offence. While the amount of money taken is not the only determinant of the length of sentence, it is a useful practical indicator. Where very large sums of money are taken, as here, a lengthy sentence of imprisonment is warranted. Other factors being equal, like defalcations should be dealt with by like sentences and more serious defalcations by heavy penalties; this satisfies the need for consistency in punishment.
The contention that the sentence of one year and ten months suspended after six months imposed by the trial judge was manifestly excessive must fail. If anything, given the amount of money stolen and the seriousness of the breach of trust involved, the sentence is a lenient one.
As the amount stolen was less than $100,000, the maximum penalty for this offence is imprisonment for seven years.[39] That is the yardstick against which the objective seriousness of the offending is to be assessed.
The High Court emphasised the importance of sentencing judges paying attention to the maximum penalties in Markarian v The Queen[40] saying:
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:
A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
It is well established that in sentencing an offender, a lower court with a jurisdictional limit sentence must determine the sentence without regard to any jurisdictional limit affecting the court’s sentencing power. Any relevant jurisdictional limit is applied by the sentencing judge after the judge has determined the appropriate sentence for the offence.[41] In this case, although the jurisdictional limit in the Local Court is imprisonment for five years, the sentencing judge was obliged to determine the sentence by reference to the maximum penalty of seven years. Given the substantial amount stolen and the breach of trust involved in this offence, I consider that the offending was in the mid-range of seriousness for offences of this nature, if anything more towards the upper end. In those circumstances, a sentence of one year and ten months suspended after six months cannot be seen as manifestly excessive.
The appeal against sentence is dismissed.
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[1] [1984] 153 CLR 521 (Chamberlain (No. 2)) at [16] for the proposition that in circumstantial cases, the Crown must exclude all other reasonable hypotheses consistent with innocence.
[2] R v Hillier (2007) 228 CLR 618 at 637
[3] Local Court Transcript of Proceedings dated 30 March 2022 at p 102
[4] Local Court Transcript of Proceedings dated 30 March 2022 at p 103
[5]Jones v Dunkel (1959) 101 CLR 298
[6] (2002) 210 CLR 285 (Dyers) at [5]
[7] (1959) 101 CLR 298
[8] Dyers at [5]
[9]Dyers at [6]
[10] (2002) 213 CLR 606 (MFA)
[11] MFA at [20], [36] and [81]
[12] MFA at [19] to [22]
[13] MFA at [79] to [81]
[14] (1984) 154 CLR 563 at 575
[15] [2013] HCA 42 at 674
[16] (1983) 152 CLR 657
[17] Presumably this was intended to be “co-accused”.
[18] Local Court Transcript of Proceedings dated 30 March 2022 at p 90
[19] Local Court Transcript of Proceedings dated 30 March 2022 at p 102-103
[20] MFA at [81]
[21] R v Apostilides (1984) 154 CLR 563 at 575 point 5
[22] [2020] NTCCA 1 at [107]-[108]
[23][2007] HCA 30, (2007) 230 CLR 559
[24](1994) 181 CLR 487
[25] [2022] HCA 25; (2022) 96 ALJR 728
[26] Gageler, Keane, Gordon, Steward and Gleeson JJ at [7] – [8]
[27]Appellant’s submissions para [6]
[28] Rigby v Benfell [2020] NTCA 9 at [42]
[29][1936] HCA 40; (1936) 55CLR 499
[30] Appellant’s written submissions [27]
[31] The trial judge had before him for sentencing purposes a Psychological report which stated that, in response to a Psychiatric Diagnostic Screening Questionnaire, the appellant reached the clinical threshold for the following mental health conditions, for which the author of the report recommended she seek treatment:
*major depressive disorder;
*post-traumatic stress disorder;
*generalised anxiety disorder;
*panic disorder; and
*obsessive compulsive disorder.
[32] [2007] VSCA 102 (Verdins)
[33] Verdins at [25]
[34] Verdins at [26]
[35] Verdins at [14] – [22]
[36] [1998] 2 VR 376 at 383; Verdins at [15]
[37] An example often given is if the offender is the sole carer for an infant child or children who will be left without care should the parent be imprisoned.
[38](1988) 56 NTR 17 at 33 per Asche CJ, Kearney and Rice JJ
[39] Criminal Code s 210(1). Section 210(2) provides for a maximum penalty of imprisonment for 14 years where the amount stolen is $100,000 or more.
[40] [2005] HCA 25 at [30] – [31]
[41] Park v The Queen [2021] HCA 37 at [2]
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