Webster v Tasmania; Tasmania v Webster
[2018] TASCCA 7
•14 May 2018
[2018] TASCCA 7
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Webster v Tasmania; Tasmania v Webster [2018] TASCCA 7
PARTIES: WEBSTER, Hayley Margaret
v
STATE OF TASMANIA
STATE OF TASMANIA
v
WEBSTER, Hayley Margaret
FILE NOS: CCA 1969/2017
CCA 2006/2017
DELIVERED ON: 14 May 2018
DELIVERED AT: Hobart
HEARING DATE: 13 April 2018
JUDGMENT OF: Estcourt and Geason JJ, Martin AJ
CATCHWORDS:
Criminal Law – Particular grounds of appeal – Inconsistent verdicts – Jury verdict of guilty on some counts and not others – Counts arising out of same circumstances – Verdict of not guilty to 95 counts of computer-related fraud, guilty to 8 counts – Where an arrangement to transfer funds was asserted by appellant for all counts on indictment – Verdicts factually inconsistent – Reasonable explanation consistent with innocence – Verdicts unsafe and unsatisfactory – Convictions quashed and verdicts of acquittal entered.
Criminal Code (Tas) ss 257B, 401(1)(b).
MacKenzie v The Queen (1996) 190 CLR 348, applied.
Aust Digest Criminal Law [3478]
REPRESENTATION:
Counsel:
Appellant/Respondent: K L Baumeler
Respondent/Appellant: T Jacobs
Solicitors:
Appellant/Respondent: Legal Aid Commission of Tasmania
Respondent/Appellant: Director of Public Prosecutions
Judgment Number: [2018] TASCCA 7
Number of paragraphs: 68
Serial No 7/2018
File Nos CCA 1969/2017
CCA 2006/2017
HAYLEY MARGARET WEBSTER v STATE OF TASMANIA
STATE OF TASMANIA v HAYLEY MARGARET WEBSTER
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
GEASON J
MARTIN AJ
14 May 2018
Orders of the Court
Leave to appeal granted.
Appeal allowed.
Convictions on indictment 3606/2016 are quashed and verdicts of acquittal substituted.
Serial No 7/2018
File Nos CCA 1969/2017
CCA 2006/2017
HAYLEY MARGARET WEBSTER v STATE OF TASMANIA
STATE OF TASMANIA v HAYLEY MARGARET WEBSTER
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
14 May 2018
Background
For reasons that will appear, I am of the view that the appellant, Hayley Margaret Webster, requires the leave of the Court in order to be able to bring her appeal in this case. I will nonetheless refer to her as the appellant and not the applicant as, for my part, I would give any leave required.
The appellant was arraigned upon an indictment containing 104 counts of computer-related fraud contrary to s 257B of the Criminal Code, said to have been committed against her employer, Darren Douglas Lawless, between April 2011 and September 2013. The total amount alleged to have been appropriated by the appellant was $180,147.12.
Upon her trial the State abandoned count 84, and ultimately the jury returned verdicts of not guilty to 95 counts, and verdicts of guilty to only eight counts, totalling $17,712.34. It is convenient to identify those eight counts now. They were counts 18, 19, 21, 22, 23, 24, 33 and 86.
The appellant seeks to appeal against her subsequent conviction on those counts on the ground that the jury's verdicts are unsafe and unsatisfactory in all of the circumstances, "especially in light of the jury's verdicts of not guilty on the majority of the counts".
The State appeals against the sentence imposed by the learned trial judge, Blow CJ, on the ground that it was manifestly inadequate because it did not contain an order for restitution in the sum of $17,712.34.
Mr Lawless's evidence
For a period of several years, ending in about October 2013, the appellant was employed by Mr Lawless as a book keeper. Mr Lawless was the proprietor of a business named DCC Excavations. On 104 occasions, from April 2011 to September 2013 inclusive, the appellant transferred money into her own bank account from bank accounts maintained by Mr Lawless.
Mr Lawless gave very brief evidence-in-chief on the trial. He was asked by counsel for the State, Mr Jacobs, if there was ever any arrangement for the appellant to have the power to do anything other than to pay debts that were legitimately due by him. He responded that there was no agreement whatsoever that the appellant could divert money from his bank accounts into her own.
In cross-examination, counsel for the appellant, Ms Baumeler, suggested to Mr Lawless that the arrangement between him and the appellant became one where he did not pay her a wage, but supplied her with a fuel card and a mobile phone card, and also arranged with her that she would withdraw money from his business account, his GST account or his personal account, depending on which one he said it was to come from, and pay it into her account, with some of the money being for her personal expenses. Mr Lawless said that was incorrect.
It was further suggested to Mr Lawless by the appellant's counsel that he then received money back from the appellant which he used to pay people in cash, and which allowed him to employ people who were in receipt of Centrelink benefits. He responded by saying, "that was not right".
The cross-examination of Mr Lawless culminated in the following exchange:
"Yeah. And – and so I'd suggest that you were fully aware of every time that Ms Webster withdrew money from your accounts and placed it into her own?.....Ms Webster did not have permission to withdraw and deposit in her own bank account.
That you had indicated to her that you would look after her provided she continued to do that for you?.....No.
That you then received money back from Ms Webster so that you could pay people in cash?.....So this is after it all went through MYOB?
Yes…..Ha, ha, ha, it doesn't – you can't do that. What a – absolute scandalous, what rubbish, absolute rubbish."
It is relevant at this point to note a credit issue between the appellant and Mr Lawless as to the circumstances of the appellant's relationship with him, and those in which she ceased her employment with him.
Counsel for the appellant suggested to Mr Lawless that the only reason the arrangement she was putting to him fell apart was because the appellant, who believed that he was in love with her, was finally able to get away from him by her telling him that she had an affair with his best friend. Mr Lawless disagreed, and said that it was because the appellant's "guilt had got to her".
A second credit issue was the extent to which Mr Lawless maintained personal supervision of his bank accounts, and thus, would, presumably, have been aware of substantial irregularities if they existed.
Counsel for the appellant suggested to Mr Lawless that once the arrangement she had been putting to him had commenced by moving money out of the business accounts and into the appellant's, Mr Lawless orchestrated things, and that he and the appellant did the "banking" together on a lot of occasions. Mr Lawless denied that but agreed that sixty per cent of the time they were together when the banking was done.
Relevantly, he also agreed that he thought that he would have signed his Business Activity Statements each quarter because they had to be submitted to the Australian Tax Office, although he was not quite sure because some of them were submitted by electronic lodgement.
The appellant's evidence
The appellant also gave relatively short evidence-in-chief at trial.
She gave some evidence as to how she came to be employed, and she said that Mr Lawless was in trouble with the Tax Office at the time and had not lodged a tax return for a number of years. She said that she did not know about that until he was audited by the Tax Office, and she then found out that he had not done any tax returns for his business, D'Entrecasteaux Channel Charters. She said that she told him that he needed an accountant to do his tax returns, and she suggested a Mr Stephen Nichols. She said that he prepared Mr Lawless' tax return on one occasion.
The appellant also gave evidence that she set up an Excel spread sheet for Mr Lawless and later an MYOB program. She said that she registered Mr Lawless for GST because she could see that he was earning more than the relevant threshold. She said that she prepared his Business Activity Statements and that he signed every one of them.
The appellant gave some evidence about what she regarded as Mr Lawless's bad business character; paying employees "off the books" and not wanting to pay income tax or GST, and she said that the arrangement with Mr Lawless was as follows:
"Yeah, so what arrangement occurred?……Well it would be that I would double-dip.
Right. Okay then, and what do you mean by 'double-dipping'?……So, say he had a loan payment that went out every month –
Mhm. ……- to pay off his business loan –
Yeah.……- that would get paid twice.
Yeah.……So in the spreadsheet and by the figures it looked like he'd paid two lots of loan payments.
Mhm…..But he didn't.
Okay. And so one, I take it, was a legitimate payment?.....Yes.
And that would've gone to wherever the payment was due, where did the other payment go to?.....Into my bank account.
Okay. And then in terms of the money that you received in your bank account what would happen to the money after that?.....I would pay my car payment and my mortgage –
Mhm……- and then I would buy things for the business and give money back to Darren so that he could pay his cash workers."
That was the central tenet of the appellant's defence. It was rolled up at the conclusion of her examination-in-chief as recorded in the following passage of the trial transcript:
"Yep, okay then. Now there's obviously a hundred and three transactions where money has come out of the various accounts of Mr Lawless and into your bank account?.....Yes.
On each of those occasions was Mr Lawless aware of the fact that you were putting that money into your account?.....Yes.
And was it at -…….And he –
Sorry, and was it at his direction that that occurred?.....Yes, he told me what to pay.
Yep…..And how we would do it, that's why the figures are different.
Yep. And he had full knowledge about each one of those?.....Yes."
In the following exchange in her evidence-in-chief, the appellant explained how her employment with Mr Lawless ceased:
"Yep, okay then. And how did you finally manage to cease your employment with him, what happened in the end?.....Well I knew Darren had feelings for me.
Right…..And I knew the only way to get rid of Darren – I think he had a fantasy in his head.
Well don't – don't worry about what he was thinking, but just tell me what you did?.....Yep, sorry.
Yep…..I told his best friend, Sean Taylor, that I had feelings for him and I knew that would get back to Darren.
Yep, okay then. And as a result of that did Mr Lawless approach you about -……He rang.
Yep, okay…..He rang me up and asked me to come around.
Mhm……And then he said – I don't know whether he said, 'You're fired', I think he just said, 'It's not going to work'.
Yep, okay. And then you were able to leave his employment?.....Yes."
It was an undisputed fact that thereafter the appellant retained Mr Lawless's business records until he complained to the local police, and the appellant subsequently delivered them up to the police station.
The appellant was cross-examined for some three hours over two days in a perfunctory manner which took her through each of the counts in the indictment and challenged her as to the benefit to Mr Lawless of any of the payments into her own bank accounts. Apart from it being put to her that the "double dipping" arrangements that she was suggesting were false and "a complete pack of lies", the cross-examination did not shed any real light on the mechanics of the asserted arrangement. The appellant was repeatedly able to claim that the complete picture as to individual withdrawals and payments could only be exposed by reference to the Excel spread sheets and the attached invoices that she claimed she had kept and which were not in evidence.
The result was that at the end of the cross-examination, as I apprehend it, the appellant's version of events was challenged, but apart from exposing the objective unlikelihood of some of the appellant's explanations by reference to the bank statements, her evidence-in-chief was not substantially undermined.
Counsel for the State's closing address
In his short closing address counsel for the State made three main points for the jury's consideration.
The first was the rhetorical question he posed as to why anyone would want to be in a situation when they were looking for future employment and had to say, "I was terminated but please don't treat it as a normal sacking because I engineered it by pretending that I was in love with a man and knowing that would get back to the man who was in love with me and he would feel blighted and therefore he would sack me." Counsel for the State suggested that was ridiculous.
The second was a comment by Counsel for the State of the increasing frequency of payments into the appellant's own account for her car payments. He said:
"… if we're talking about avoiding tax, as she was repeatedly, you bear in mind that the Tax Department have an ease to get access to bank statements and that going into her account for the year, the financial year from the 1st July 2012 through to the 30th June 2013, over a hundred thousand dollars was transferred across from Mr Lawless' account to hers. So, if the ATO looks at her where does she stand? Rather than hiding things from the Tax Department this is more likely to alert the Tax Department, because we can be fairly certain that she wasn't putting a tax return in saying that she claimed – she received over a hundred thousand dollars, in fact, she's claimed that it was all spent on other things. So, you look at that also when you look at what is sensible and rational."
The third point related to one of the appellant's claims that she would pay, from time to time, at Mr Lawless's behest, some of the payments she made to herself into an account to try and save $100,000 for Mr Lawless to be able to buy a block of land. Counsel for the State said:
"Now, if you look at that, the evidence of - she accepts of Mrs Read that the business was – he was told the business was short of money, had to raise some money and he sold, according to Mrs Read, a large boat to raise the money, but she agrees that she told him money needed to be raised, but she would have you believe that at the same time she was, with his permission, at his request, paying money into this account to buy some money – to buy some land off Sean Taylor. Now I'd suggest that doesn't add up. If you want to pay some money into an account to go to Sean Taylor in due course, you're inclined – you'd be inclined, would you not, to wait until you've saved enough money so you don't have to sell the boat you love before you start putting it away in a nest egg. But that's what she'd have you believe."
Counsel for the appellants closing address
Counsel for the appellant relied in her closing address principally, as might be expected, on the central tenet of the defence case. She told the jury:
"The focus that you need to focus on though is, as I've said, what was the intent at that point in time, as that transaction's going through, what was her intent there and was there knowledge by Mr Lawless? And if you accept the defence case then, as I said, then you will be finding her not guilty in relation to all of these matters because if you accept the defence case then there was an agreement between the two of them that this is how their business would be conducted, this was the employment arrangement between the two of them."
Counsel for the appellant told the jury that Mr Lawless's business affairs were a Pandora's Box, and she reminded them that the appellant had drawn attention to the fact that she had not been provided with any of the Excel spread sheets or the BAS statements referred to by the appellant in her evidence.
Counsel for the appellant suggested that Mr Lawless's evidence was "unbelievable and evasive", and that it was totally illogical that the appellant could influence "a man like him" in terms of what their business arrangement would be. She submitted that it was not a case of the appellant doing whatever she wanted, with Mr Lawless not knowing what was happening. Counsel said that they would sit down together and worked on the accounts together. She described Mr Lawless as a puppet master pulling the strings, She submitted:
"And even Mr Lawless at the end of the day had to concede, 'Sixty percent of the time I had involvement, we would do it together, I would supervise, I would have knowledge of it. I would be involved, sixty percent of the time.' That was his figure that he put on it. So a man who has managed to set up his own business, run it for two to three years before he employs Ms Webster, still has involvement sixty percent of the time and yet somehow Ms Webster, without his knowledge, has managed to glean off a hundred and eighty thousand. How ridiculous, how impossible, it's just not remotely believable that that could occur with a man who sits there and goes through the books with her not to notice, 'Oh gee, that's a bit weird, we paid Jason twice within a few days'. Really? No, of course it wasn't, it was because that was what he was getting her to do. It's – the only way it could have happened is with Mr Lawless' knowledge, condonement [sic]), whatever you want to call it, active involvement, scheme even, so that he could get cash back and other benefits without it looking like he was actually earning a lot of money, or that he was employing anyone for that matter …"
Counsel for the appellant suggested to the jury that Mr Lawless's business "was doing all right" and that it would be "if you're pulling that much money through to Ms Webster and then getting back kickbacks as a result of it, of course your business is doing well". What the kickbacks were, and how the system worked, and the extent of the benefit to Mr Lawless as a result, were never fully explained to the jury. Counsel paraphrased the appellant's explanation offered in her cross-examination as follows:
"We had a system, Mr Lawless knew about it. There was the Excel spreadsheet. We made things look like legitimate payments. Money would be transferred into my account, Mr Lawless knew about it, over and over again. 'Why haven't I got the Excel spreadsheet? You haven't shown me the BAS statements. If you showed me those I could show you where these transactions occurred and how we made it look', over and over she answered those questions. And she didn't falter, there was no uh-huh moments or anything like that, I've got you here. She maintained her account to you in spite of three hours of cross-examination …".
The appeal point
Before turning to the learned trial judge's summing-up it is useful to set out the details of the eight guilty verdicts so that the assertion of unsafe and unsatisfactory verdicts on the basis of inconsistency can be viewed through the prism of the directions given to the jury.
Seven of the guilty verdicts relate to transfers in August, September and October 2012. Count 86 relates to a transfer in July 2013. As observed by the learned trial judge in his comments on passing sentence, in relation to each of the eight transactions to which the guilty verdicts relate, it could be inferred from material in either or both of the relevant bank statements that the appellant entered data that tended to disguise the transaction as a payment to the Australian Taxation Office, the acronym for which is "the ATO". The details relating to count 18 entered in Mr Lawless's bank statement were "TO ATO". In relation to most of the other transfers, the entries in Mr Lawless's bank statements do not refer to the ATO. However details entered in the appellant's bank statements indicate that she must have entered words suggesting a transfer to the ATO when she filled in the description of the transaction that was to appear on the recipient's bank statement.
The learned trial judge extracted the relevant details in his comments on passing sentence as follows:
"The entry on her bank statement relating to count 18 reads 'APRILJUNE2012PAYE DCC EXCAVATIONS'.
Counts 18 and 19 each related to transfers of $2,271. The entry on Ms Webster's bank statement relating to count 19 reads 'APRIL JUNE 12 DCC EXCAVATIONS'.
Ms Webster was acquitted on count 20. However the entry on her bank statement relating to count 20 reads 'BAS 1st Payment DCC EXCAVATIONS'. The initials 'BAS' stand for Business Activity Statement. Those initials might be used when remitting a payment of Goods and Services Tax to the ATO. The amount transferred on that occasion was $1,000.
Count 21 related to a second transfer of $1,000. The information on Ms Webster's bank statement relating to that transaction reads 'BAS JUNE 12 DCC EXCAVATIONAS [sic]'.
Count 22 related to a third transfer of $1,000. The information on Ms Webster's bank statement relating to that transaction reads 'JUNE 2012 Three DCC EXCAVATIONS'.
Count 23 related to a fourth transfer of $1,000. The information on Ms Webster's bank statement relating to that transfer reads 'JUNE 2012 FOUR DCC EXCAVATIONS'.
Count 24 related to a transfer of $3,402.15. The information on Ms Webster's bank statement relating to that transfer reads 'AUGUST 2012 TAX DCC EXCAVATION'.
Nothing relating to tax appears on the bank statements of Mr Lawless in relation to the transactions that are the subject of counts 19 to 24 inclusive. However the information that appears on Ms Webster's bank statements relating to those transactions must have been entered by her when she made each transfer as the description of the transaction for the recipient's bank statement. I infer that that information would appear on any receipt printed out from the website of Mr Lawless' bank.
The information relating to count 33 on the bank statement of Mr Lawless says 'TO ATO'.
The bank statements of Mr Lawless contain no reference to tax in relation to count 86, but the entry on Ms Webster's bank statement relating to that transaction reads 'GST MAR JUNE 13 DCC EXCAVATIONS'. Once again, that information would have appeared on any receipt relating to the transaction printed out from the website of the bank of Mr Lawless."
The summing-up
The learned trial judge made it clear to the jury that they did not have to accept all of the appellant's evidence or reject it all. His Honour said:
"It's a matter for you to decide how much reliance you can place on the different witnesses, and on the different things that they say. That's particularly important in this trial, because a lot depends on your assessment of the evidence of Mr Lawless, and the evidence of Ms Webster. It's not an all-or-nothing thing; a witness can be honest about one point, and dishonest about another."
While particular account details in relation to particular counts may not have been drawn to the jury's attention by counsel in their closing addresses, or by the learned trial judge in his summing-up, his Honour made it clear that did not mean the evidence was unimportant. He said:
"If I don't mention some piece of evidence, or if counsel haven't mentioned some piece of evidence, it doesn't necessarily follow that that piece of evidence is unimportant. You're the jury, you're the judges of the facts, you decide what's important and what's not."
His Honour also made it very clear to the jury that each of the 103 counts remaining on the indictment was a separate charge to be considered separately. He said:
"Now, there are 103 charges that you have to consider. You're – it doesn't have to be an all-or-nothing thing, it may be that, when you analyse the evidence, that you reach verdicts of guilty on some charges and not guilty on others. The starting point is that each charge stands alone, and that you have to consider, in relation to each charge, what your verdict should be. Now, obviously if you believe everything one side says, and nothing the other side says, that might make it simple, but it might not be as simple as that. The starting point, in relation to each charge, is that the accused – an accused person is presumed to be innocent"
His Honour did not give, nor was he asked for, a "oath against oath" direction, but he made the substance of such a direction clear enough, in my view, by directing the jury that:
"A verdict of not guilty isn't a verdict that anybody lied, or that anybody made up false evidence; a verdict of not guilty means just one thing, it means that you're not satisfied beyond reasonable doubt of the guilt of the accused person, in relation to that particular charge. Now, to a large extent, this case involves a version of events, given by Mr Lawless – or a version of the facts given by Mr Lawless, and a version of the facts given by Ms Webster. It's not a question of which version is more likely to be correct, it's a question of whether you're satisfied beyond reasonable doubt of guilt, on a charge – and on a charge-by-charge basis. So you certainly mustn't reason, 'oh, that person's the one that's more likely to be telling the truth, that decides what my verdict's going to be.' It's a matter for – it's a question of whether the evidence of guilt satisfies – the evidence that tends to prove guilt satisfies you of guilt beyond reasonable doubt.
And, it's not a popularity contest. However much you might like or dislike Mr Lawless or Ms Webster, it's a matter of being impartial, and unemotional, and analysing the evidence and deciding whether guilt has been proven beyond a reasonable doubt."
Finally I note that the learned trial judge specifically drew the jury's attention to the possibility that they might find that the truth lay somewhere between the version of events given by Mr Lawless and that given by the appellant. His Honour said in very clear terms:
"The Crown case is that every transaction was without Mr Lawless's knowledge or approval, and that every one of them was fraudulent and dishonest. The defence case was that this was a part of – all done by arrangement, and that the money had a number of destinations; some of it was to go back to Mr Lawless in cash, some of it was to be spent on things he wanted, even gin and groceries, some of it was to be spent for Ms Webster's benefit, in accordance with his wishes, and the rest of it was money that she was entitled to keep because this was an arrangement that had been made in substitution for an arrangement where she got paid wages for the work that she did in keeping the books and in providing other assistance, in miscellaneous ways.
Now, there are, I suppose, three possibilities as to the conclusions that you might reach as to the big picture. One possibility is that you might, might conclude that you accept what Mr Lawless says, and not what Ms Webster says, in relation to every transaction, and that she's guilty of everything, it was all dishonest and fraudulent. Another possibility is that, in relation to every charge, you might not be satisfied of guilt beyond reasonable doubt, and you find Ms Webster not guilty of every charge. But there's a third possibility, and it's at least theoretically possible, that you might analyse the evidence and come to the conclusion that the truth lies somewhere in between the two positions, and that Ms Webster was entitled to take some of the money she took, as far as Mr Lawless was concerned, but not as much as she took.
Now, if you're – if you come to that conclusion, then it's going to be necessary to analyse the evidence on a charge-by-charge basis, and think in relation to – ask yourselves in relation to each charge, well, looking at that transaction on that day, am I satisfied beyond reasonable doubt that this was a transaction that was fraudulent? That this was an occasion when Ms Webster transferred money to her own account fraudulently, or dishonestly, without the permission of Mr Lawless? And one possible outcome, in this trial, is that you might conclude that you think she took money that she wasn't entitled to, but you might look at the 103 charges and not be able to say, in relation to any of them, well, I'm satisfied beyond reasonable doubt of guilt on this one. Or you might look at the 103 charges and conclude that you're satisfied beyond reasonable doubt of guilt in relation to not very many.
You have to analyse the – if you, if you come to the conclusion that the truth lies somewhere in between the two competing sets of contentions, then there's nothing for it but to analyse the evidence on a charge-by-charge basis, and reach a conclusion in relation to each charge, as to whether guilt's been proven beyond reasonable doubt in relation to that particular transaction." (My emphasis.)
An explanation of the guilty verdicts
It is against that background of the evidence of Mr Lawless and the appellant, and the addresses and summing-up, that the jury's eight guilty verdicts need to be examined.
The learned trial judge offered his assessment of the basis for those verdicts in his comments on passing sentence. His Honour said:
"In relation to each of the eight charges on which Ms Webster was found guilty, I think the jury must have reasoned that she tried to disguise the payments as payments to the ATO; that that would not have fooled anyone from the ATO; and that she must therefore have been trying to conceal the true destination of the transfers because they were not in accordance with the wishes of Mr Lawless. I can see no other basis for the jury having decided to convict on that group of charges. However I am unable to explain why the jury did not convict in relation to count 20 and various other charges in respect of which similar entries appear in the bank statements. It is possible that they did not notice some of the relevant entries. Their attention was not directed to any of those entries by counsel or by me."
My independent consideration of the evidence leads me to the same conclusion. Indeed, I can think of no other overarching inference that would be logically consistent with the jury's obvious acceptance that on 95 occasions the appellant had the consent of Mr Lawless to take amounts from his accounts for her own use or for his.
The second of the three points made to the jury by counsel for the State in his closing address to which I earlier alluded, that being the point about the ease with which the ATO can access bank records, may also have caught the jury's attention. It may also have resonated with the appellant's own evidence about Mr Lawless's dislike of paying income tax and GST, and the fact that Mr Lawless had been audited by the ATO. The end result could well have been to cause the jury to single out for particular scrutiny and analysis any transactions that had any reference to tax, although they apparently missed quite a number if that were the case.
If they were overlooked, then that would be understandable given the number and nature of the records the jury was required to examine. However, they may not have been missed as opposed to having been distinguished. Contrary to the central submission of counsel for the appellant, every count was subtly different. Individualised characteristics such as the amount involved, the frequency of the withdrawal, the nature of the expenditure and the locations of the withdrawals might account for the jury's verdict as to count 20 and the other seemingly anomalous not guilty verdicts, as contended for by counsel for the respondent in the detailed analysis of the features of the counts set out in his written submissions. As will be seen however, neither that fact, nor the learned trial judge's rationalisation of the eight guilty verdicts is capable of justifying them in law.
Were the verdicts illogical and inconsistent?
The relevant legal principles are set out in MacKenzie v The Queen (1996) 190 CLR 348 at 365–368. An inconsistency can be a legal or technical inconsistency or a factual inconsistency. In my view the present appeal involves a case of claimed factual inconsistency. Hence my reference at the commencement of these reasons for the need for leave to appeal (Criminal Code, s 401(1)(b)). In a case of asserted factual inconsistency the test is one of logic and reasonableness.
In Saxby v The Queen [2011] TASCCA 1, 21 Tas R 123, Crawford CJ extracted the relevant principles from MacKenzie as follows:
"[128] A statement of the relevant law is to be found in MacKenzie v R (1996) 190 CLR 348 at 365 – 368. This is not a case of legal or technical inconsistency but one of suggested factual inconsistency. In such a case, the test is one of logic and reasonableness. Often cited as expressing the test is the statement of Devlin J in R v Stone unreported, 13 December 1954, referred to, for example, in R v Hunt [1968] 2 QB 433 at 438 and R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966. After making the point that the burden of establishing the ground of appeal is on the appellant, Devlin J said: 'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that'.
[129] Nevertheless, and as explained in MacKenzie at 367, the respect which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate Court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.
[130] Further, the view may be open to be taken that the jury simply followed the trial judge's direction to consider separately the Crown's evidence in respect of each count and to apply to each count the requirement that all the ingredients must be proved beyond reasonable doubt. R v Andrews WeatherfoilLtd (1971) 56 Cr App R 31 at 40; MacKenzie v R at 367. It should not be forgotten that a verdict of not guilty can mean merely not proven and not that innocence has been proved. R v Andrews Weatherfoil Ltd at 40."
An application of those principles to the present case would, in my view, be dispositive of the appeal against the appellant were it not for the fact that the crime with which she was charged in each count on the indictment was that of computer related fraud and not fraud or stealing for example. That fact meant that the jury in relation to each of the eight guilty verdicts would have needed to have been satisfied beyond reasonable doubt that at the time of each computer transaction, as opposed to the time of any subsequent use of the resultant funds, the appellant acted with a fraudulent intent.
In undertaking its task in respect of the eight subject counts the jury, whether it recognised it or not, was considering circumstantial evidence to determine the question of whether the appellant had acted with intent to defraud in executing each computer transaction. The jury must be taken, by virtue of the 95 not guilty verdicts, to have accepted, or to have been unable to exclude the reasonable possibility, that there was an arrangement between the appellant and the complainant whereby the appellant was entitled to withdraw funds from the complainant's accounts. The relevant circumstantial facts therefore were those concerning the characteristics of the eight individual withdrawals, such as their amounts, their frequency, their location, what they were used for and so on. For the jury to be satisfied beyond reasonable doubt of the appellant's fraudulent intent at the time of each computer transaction it would have had to have been able to conclude that guilt was the only reasonable inference to be drawn from the circumstantial evidence and would have needed to have been able to exclude as a reasonable hypothesis the proposition that the appellant believed that she was entitled to make the withdrawal.
The reasoning identified by the learned trial judge, with whom, at a relatively high level of abstraction, I agree, augmented by a consideration of the characteristics of the ultimate expenditure as contended for by the State, is a means by which this Court might have reconciled the verdicts in a case of stealing or a case of fraud, but that does not assist the State in the present case. The 95 verdicts of not guilty of computer related fraud could also signify that the jury was satisfied merely that those counts were not proven, and not that the appellant by her evidence established her innocence on those counts. However, those 95 verdicts, based as they must have been on an acceptance of, or an inability to exclude the existence of, an arrangement between the appellant and the complainant, make it impossible to see how the jury, acting reasonably, could have excluded as a reasonable hypothesis consistent with innocence that the appellant had an honest belief in her entitlement to make the eight withdrawals the subject of the guilty verdicts. Put another way, given the jury's acceptance of the existence of an arrangement between the appellant and the complainant, or at the very least an inability to exclude its existence, the evidence in support of the eight subject counts could not have satisfied a reasonable jury that the appellant acted with fraudulent intent with respect to those eight transactions.
Disposition
It follows in my view that the eight guilty verdicts cannot stand. I would allow the appellant's appeal.
The State's appeal against sentence
In his comments on passing sentence the learned trial judge made the following observations:
"Counsel for Ms Webster submitted that the eight guilty verdicts do not indicate that the jury was satisfied beyond reasonable doubt that each of the eight transactions was wholly fraudulent, but only that they were satisfied beyond reasonable doubt that at least part of the amount transferred on each occasion was taken fraudulently. She pointed out that, after most of the eight transfers, substantial cash withdrawals were made from Ms Webster's account, consistently with the practice described by her of withdrawing large sums and giving them to Mr Lawless in cash. In relation to each of the eight transfers, I do not think the Crown has established beyond reasonable doubt that the arrangements between Ms Webster and Mr Lawless did not permit her to take any part of the sum transferred. I will have to sentence her on the basis that each of the eight transfers was fraudulent, at least in part, and that the extent of her fraud cannot be quantified with precision."
Having reviewed the evidence and the closing addresses and summing-up, I am, with respect, of the same view.
In his summing-up the learned trial judge did say:
"Now, in relation to each transaction, I don't think there's a single transaction where anyone asserts that she was entitled to take some money, but took too much. If that were the case, if she dishonestly took more than she was meant to, then she'd be guilty, but I don't think we need to think about that sort of complication."
It would have been preferable if those comments had not been made because it was the case that funds were transferred in many cases into the appellant's account, but then were dispersed from her account in differing sums. It could not have been taken to have established beyond reasonable doubt that the appellant fraudulently converted the whole of the amount specified in each count. His Honour's comment ought not to be treated as siloing the jury's eight guilty verdicts in that way.
Although, in view of the outcome of the appellant's appeal, it is unnecessary to decide, it follows, in my view, that his Honour was not required to make an order for restitution as claimed by the State and I would have dismissed the State's appeal on the basis of manifest inadequacy.
File Nos CCA 1969/2017
CCA 2006/2017
HAYLEY MARGARET WEBSTER v STATE OF TASMANIA
STATE OF TASMANIA v HAYLEY MARGARET WEBSTER
REASONS FOR JUDGMENT FULL COURT
GEASON J
14 May 2018
I agree with Estcourt J. Leave to appeal should be given and the appeal should be allowed.
File Nos CCA 1969/2017
CCA 2006/2017
HAYLEY MARGARET WEBSTER v STATE OF TASMANIA
STATE OF TASMANIA v HAYLEY MARGARET WEBSTER
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARTIN AJ
14 May 2018
I agree with Estcourt J that leave to appeal should be given and that the appeal should be allowed. The convictions should be quashed and verdicts of acquittal entered. I also agree that the appeal by the State of Tasmania against the sentence imposed by the learned trial judge should be dismissed.
I gratefully adopt the facts set out in the reasons for judgment of Estcourt J. His Honour has also helpfully summarised the relevant legal principles. I wish to emphasise only a few aspects of the matter.
During the appeal, much attention was given to how the appellant dispersed the funds that she withdrew from the account of her employer, Mr Lawless. Of critical importance, however, is the fact that the appellant was not charged with misuse of those funds in the various ways in which she dispersed the funds. She was charged with using a computer to transfer the various sums from her employer's account to her account, with intent to defraud. The learned trial judge directed the jury that the Crown was required to prove the following:
"(a)She made the transfer of funds that is referred to in the charge, using a computer.
(b)She made that transfer without permission from Mr Lawless.
(c)In making that transfer, she acted dishonestly."
The trial judge directed the jury that acting dishonestly meant acting dishonestly towards her employer. His Honour directed the jury that there was no assertion that in a particular transaction the appellant was entitled to take some funds, but took too much. His Honour identified the essence of the dispute:
"The Crown case is that every transaction was without with Mr Lawless' knowledge or approval, and that every one of them was fraudulent and dishonest. The defence case was that this was part of – all done by arrangement, and that the money had a number of destinations …".
The 104 counts charged spanned a period of nearly 2½ years from April 2011 to September 2013. It necessarily follows from the verdicts of not guilty in respect of 95 counts spread over that entire period that the jury was not satisfied that the appellant acted dishonestly on 95 occasions. Bearing in mind the way the case was conducted, it follows from those acquittals that the jury was not satisfied that Mr Lawless was telling the truth when he said that every transaction was carried out without his knowledge and approval. The jury either accepted that there was an arrangement pursuant to which the appellant was authorised to make the various withdrawals or, at least, the existence of such an arrangement throughout the period April 2011 to September 2013 was a reasonable possibility.
In these circumstances, how could a jury reasonably find the appellant guilty of eight counts spread across a period from 1 August 2012 to 4 July 2013? The jury could not have relied upon the evidence of Mr Lawless, and could not reasonably have found that the arrangement did not exist on those particular occasions, or that these particular withdrawals were outside the arrangement, without some evidence pointing to those conclusions.
When he came to sentence, the learned trial judge endeavoured to find a basis upon which the jury could have convicted of only eight counts. His Honour speculated that the jury must have reasoned that the appellant tried to disguise the payments as payments to the ATO, and was endeavouring to conceal the true destination of the transfers because they were not in accordance with the wishes of Mr Lawless. As his Honour noted, however, the transfers in count 20 and other counts of which the appellant was acquitted involved similar entries in the bank statements.
On appeal counsel for the respondent tried to identify features of the eight counts of which the appellant was convicted which he suggested might have formed the basis of the jury reasoning to convictions. However, neither individually nor cumulatively did any of those features fail to appear in counts of which the appellant was acquitted. While there were uses of the funds withdrawn from the employer's account which might have raised suspicion, nevertheless there was nothing unique or special about the particular occasions in respect of which the jury convicted the appellant. There were many features in common with counts that resulted in verdicts of not guilty. In these circumstances the guilty verdict cannot stand with the not guilty verdicts.
Further, in view of the verdicts of not guilty, in considering the evidence capable of supporting a conviction on each of the eight counts, the evidence of Mr Lawless had to be put aside. The jury did not accept his evidence that there was no arrangement, or that 95 withdrawals were not authorised. He did not give specific evidence related to the guilty counts.
In the absence of the evidence of Mr Lawless, the Crown was entirely reliant upon circumstantial evidence to prove the eight counts. The Crown was required to prove that the lack of authority with respect to each of the eight counts, and the dishonesty of the appellant with respect to each of the eight counts, were not just rational inferences, but were the only rational inferences open on the evidence. In the absence of unique or special features attached only to the eight counts, the circumstantial evidence was incapable of excluding the rational inferences that in respect of the eight counts the appellant had the authority of Mr Lawless to make the withdrawals and she did not act dishonestly.
The verdicts of guilty were unsafe and unsatisfactory and the appeal should be allowed.
0
2
1