Jones v The the Queen

[2022] NZHC 355

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-000077

[2022] NZHC 355

BETWEEN

CHARLOTTE JANE JONES

Appellant

AND

THE QUEEN

Respondent

Hearing:	2 February 2022
Appearances:	S Taylor for the Appellant D Young for the Crown
Judgment:	3 March 2022

JUDGMENT OF WALKER J

This judgment was delivered by me on 03 March 2022 at 3 pm Registrar/Deputy Registrar

JONES v R [2022] NZHC 355 [3 March 2022]

Introduction

[1]    Charlotte Jones appeals against her conviction on two representative charges of theft by a person in a special relationship1 following a judge-alone trial in the District Court at Hamilton.2 On 26 November 2021, Judge Marshall sentenced Ms Jones to five months’ home detention on both charges.3

[2]    Ms Jones argues that the trial Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.4 The grounds relied on are that the Judge:

(a)placed undue weight on assumptions made by the primary Crown witnesses, which were inconsistent with corroborative documentary evidence; and

(b)relied on non-expert opinion evidence in respect of accounting information and practices.

[3]    Consequently, the Judge arrived at a conclusion which was not supported by the evidence.

Background

[4]    Ms Jones was employed as office manager of Pekerau Primary School in Te Awamutu. She was also the secretary of the Board of Trustees for the school.

[5]    Various amounts of cash went missing at the school. The representative charges reflect the two relevant timeframes — the first being 1 May 2017 to 31 December 2017 and the second being 1 January 2018 to 31 December 2018.

1      Crimes Act 1961, s 220(1)(b).

2      R v Jones [2021] NZDC 16363.

3      R v Jones [2021] NZDC 23338 at [11].

4      Criminal Procedure Act 2011, s 232(2)(b).

[6]    Cash payments were handled exclusively by Ms Jones and one other administrative assistant during each period. Primary responsibility for finances at the school lay with Ms Jones.

[7]    These payments were processed at a single till in the school’s office. The school had one bank account and the system of accounting was rudimentary. After Ms Jones left her employment, discrepancies were identified in that a large number of cash transactions were unaccounted for and were not banked into the school’s account.

The respective cases

[8]    In summary, the Crown argued that Ms Jones’ responsibility for the school’s finances included receiving payments and depositing them into the school’s bank account, and monitoring the bank account. The Crown called four school employees as witnesses, as well as the officer in charge. There was also a memorandum of agreed facts.

[9]    Ms Jones argued that she was not responsible for banking the cash received in the office because that was the role of the administrative assistants. The school lacked clear financial procedures so she could not be said to have acted in contravention of her employment and the cash was, in any event, left in an unsecure safe.

[10]   Ms Jones accepted that money was missing and that the theft must have occurred almost on a weekly basis during her time at the school. She also accepted that it was unlikely both Ms Monkley and Ms Ashby had stolen money. However, the key to the safe was in an easily accessible drawer, in an office used by members of the Parent Teacher Association, volunteers, and a woman who made coffee for staff, amongst others.

[11]   She also accepted it was her responsibility to check the bank account balances, and that she had created a system to do this but claimed not to have noticed that almost no money had been deposited.

District Court Decision

[12]   After describing the nature of the charges, Judge Marshall referred to the elements which the Crown had to prove beyond reasonable doubt as set out by the Court of Appeal in Tallentire v R: 5

(a)Did the defendant have possession or control over the property?

(b)Was the property in the control of the defendant in circumstances that required her to deal with the property in accordance with the requirements of any other person;

(c)Did the defendant know of these circumstances?

(d)Did the defendant intentionally deal with the property otherwise than in accordance with those requirements?

[13]   He then traversed the evidence, beginning with the evidence of Tania Bagley. Ms Bagley had been a team leader of the small team of teachers at the school through much of the period in question. She was also deputy principal from June 2018. She considered that Ms Jones was responsible for paying invoices, communicating information from accountants as to budgets and spending and “responsible for all things financial” within the school.6 Ms Bagley was delegated the responsibility for financial matters after Ms Jones left the school. She found that there were pieces of cash and money in all sorts of places in the school.

[14]   It was Ms Bagley who found discrepancies in the accounts from 2018. After reviewing till sheets, spread sheets and bank statements, she identified there were no cash deposits for the month of October. This concerned Ms Bagley who then reviewed the records through 2018. She found there were only three cash deposits, two of which related to particular fundraisers. Ms Bagley produced a table piecing together the discrepancies which was produced in a memorandum of agreed facts.

5      Tallentire v R [2012] NZCA 610, [2013] 1 NZLR 548.

6 Above n 1, at [7].

[15]   The Judge referred to the cross examination of Ms Bagley about the defendant’s job description. She agreed that banking school funds did not appear in the job description produced in evidence, but she was nonetheless confident that Ms Jones banked money as she gave her money to take to the bank in her role as team leader. 7 She also stated in her evidence that it was the school’s expectation that money was banked weekly or fortnightly and in a timelier fashion if there was a fund-raising event.

[16]   Virginia Mitchell, another teacher at the school, prepared the accounts from May 2017 to December 2017. She prepared a reconciliation and also concluded that there were amounts of cash received which were not accounted for in any way. She was not able to explain how the money had gone missing.

[17]   Catherine Monkley was the office administrator who assisted Ms Jones from June 2017 for approximately 12 months. Her evidence was that her role was to manage school absentees, new entrants or new students. She also manned the reception, answered phones and carried out the day to day mechanics of the office work. She disclaimed any responsibility for finances but said that all payments to the office were through the office till and transacted by either her or Ms Jones. At the end of the day, cash would be placed in the safe and she believed that Ms Jones would then organise the banking. For the first part of her employment, she only worked up until

11.30 am. Her hours were later extended to 3 pm and she would then ring the till off, put the receipts onto a piece of A4 paper and put the cash in the safe.

[18]   Leanne Ashby was a teacher aid who took over the office administration from Ms Monkley. Her evidence was that she would leave at 3.30 pm and leave the till as it was. Ms Jones would close it and leave a float for her to open it up in the morning. She indicated that she had little to do with the financial side of things and was unaware there was a safe in the office until after Ms Jones left. She considered that Ms Jones was responsible for the banking, but on cross-examination agreed that she could not be sure.

7 At [16].

[19]   Ms Jones elected to give evidence. She described a lack of clear processes and procedure when she started her employment. She relied on the job description which detailed the number of financial responsibilities she would hold but which did not specifically refer to banking. She disavowed any responsibility for banking or for the missing cash. Her evidence was that it was her role to put funds in the safe, leave a float in the till and check the bank balances, but not bank the money. She said that she did the banking three times in her whole tenure at the school. While she accepted that she regularly checked account balances, she had never noticed in the whole of 2018 that virtually no cash had been banked.

[20]   The Judge found that Ms Jones was responsible for the office administrator. It was either Ms Jones or the office administrator who received cash in the office for purchasers or processed ETPOS payments. A purchase code or designation would be selected along with the method of payment. A receipt would be produced for the customer and for the till. Any cash would be placed in the cash register with the receipt. At the end of the day, a daily summary of receipts was produced on an A4 piece of paper to which the receipts were stapled. A weekly spreadsheet would then be generated summarising the monies in the till and method of payment. Cash would be removed and put into the safe for banking.

[21]   The Judge identified that the principal area of dispute was who was responsible for banking. He found that the reality was that Ms Jones was responsible for the financial running of the school, and while it may not have been explicitly spelt out that she was responsible for banking, it would certainly be inferred.8 He said:

[39]      … She did weekly reconciliations. She prepared accounts for audit. She received bank statements via the system she set up and that would have been regularly. She knew school fundraising projects produce significant sums of money at times. She knew cash was received in the office. She prepared accounts for audit. She in fact says that she did three bankings which would be close to 50 per cent of the banking over the timeframe that she was the office manager. This is not a large scale enterprise with numerous accounts over a number of departments. Ms Jones would have been aware from the bank statements little or no cash was being banked.

[40]      I reject the evidence of Ms Jones as implausible that large amounts of cash just went missing without her having any inkling of this from the accounts and finances that she was responsible for. It would have meant in

8 At [39].

any event that Ms Monkley and then Ms Ashby had systematically stolen the money or rather, another person or persons from staff or the PTA had helped themselves to cash that was left lying around or unsecured or used an unsecure key to help themselves out of the safe or elsewhere with no one realising that. They would have had to [have] done that on a very regular, almost daily basis as cash amounts built up. Once again, I find that implausible.

[22]   The Judge found the evidence of Ms Monkley and Ms Ashby to be consistent and logical and that both witnesses gave credible and plausible evidence.9 He preferred their evidence over the evidence of Ms Jones which he rejected. There was little opportunity for Ms Monkley up until September or October 2017 to have much at all to do with the cash. Ms Ashby had little involvement or knowledge of financial matters.

[23]   Having canvassed the evidence, the Judge then considered the elements of the charges. He found that Ms Jones had possession or control over the cash, that she placed cash in the safe or handled it most of the time, if not all of the time until September or October 2017, and after that, she was responsible for banking the money in the safe left by Ms Monkley.10

[24]   He found that the property was in the control of Ms Jones in circumstances that required her to deal with that property in accordance with the requirements of another person. Those requirements were to account back to the school and the board of trustees for the money, and to bank the money.11

[25]   As Ms Jones was the financial person and the sole person in control of finances, she must have been aware of those circumstances.12

[26]   As to the final element, the Judge found that Ms Jones took the cash payments made to the office for her own use, thus dealing with the cash otherwise than in accordance with the requirements.13

9 At [41].

10 At [42].

11 At [43].

12 At [44].

13 At [45].

[27]   Having found all those elements proved beyond reasonable doubt, the Judge found Ms Jones guilty of the first charge.

[28]The Judge then considered the elements of charge two. He said:

[46] … when I consider those same elements, I find with the overlapping period between Mrs Monkley and Ms Ashby, that Ms Jones did have possession or control over the cash and the safe or once the day ended, that it was in her control and circumstances that she was required to deal with the cash in accordance with the trustees and school’s requirements to bank those or to certainly hold them on account of the school. She was aware of that beyond reasonable doubt and that she intentionally dealt with the proceeds, namely the cash, otherwise in accordance with those requirements by taking the money. I find that proved beyond reasonable doubt.

Approach on appeal

[29]   This appeal is under s 232(2)(b) of the Criminal Procedure Act 2011. The appeal must be allowed if the judge has erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice means:14

…any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

b) has resulted in an unfair trial or a trial that was a nullity.

[30]   An appeal from a judge-alone trial is a general appeal, governed by the principles in Austin, Nichols & Co Inc v Stichting Lodestar:15

If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But, to the extent that Mr Jones was suggesting that the role of an appellate court is to consider the issues de novo as if there had been no hearing at first instance, then we do not agree. Since it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”…

14     Criminal Procedure Act, s 232(4).

15     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

Appellant’s submissions

[31]   Mr Taylor, for Ms Jones, acknowledges that Ms Jones was in control of the money and was required to deal with it in accordance with the requirements of the school. He identifies the key issue as being whether Ms Jones was responsible for banking the money because the failure to bank the missing money constitutes the final element of the offence, that is, intentionally dealing with the property otherwise than in accordance with requirements. He submits that if the Crown has not proved Ms Jones was required to bank the money, she cannot be found guilty of failing to do so.

[32]   Mr Taylor submits that on this key element, the Judge relied on assumptions over irrefutable evidence. Both Ms Monkley and Ms Ashby thought Ms Jones was responsible for banking, but on cross-examination conceded they were not sure. All witnesses agreed the school was disorganised. There was confusion about staff roles and procedures. As Mr Taylor put it:

Both Ms Ashby and Ms Monkley considered that the banking was the responsibility of Ms Jones, citing her oversight and control over the finances. However, neither could categorically say that Ms Jones was supposed to do the banking. This too was the position taken by Ms Bagley and Ms Mitchell. Rather, all assumed that it was Ms Jones’ responsibility.

[33]   By contrast, Mr Taylor submits that Ms Jones’ evidence about her role was consistent with her formal job description. The job description was not challenged by the Crown. There was no basis for the Judge to dismiss it.

[34]   Mr Taylor criticised the failure of the Crown to call an expert witness to give evidence on accounting information and practices and the requirements of different roles within an organisation like a school, instead relying on opinion of the factual witnesses. He also emphasised that any number of people could have accessed the safe in the office given the key was kept in the office so that the Judge erred when he found beyond reasonable doubt that Ms Jones had taken the money.

Crown submissions

[35]The Crown’s position in summary is that:

(a)The Judge did not merely rely on Ms Monkley and Ms Ashby’s assumptions. Both gave consistent evidence that Ms Jones had instructed them as to their role and that they had limited financial responsibility. The Judge found them to be credible witnesses.

(b)The Judge did give weight to the job description but inferred from it that Ms Jones was responsible for banking, as she was clearly in charge of the school’s finances.

(c)The lack of expert evidence was irrelevant. Ms Jones accepted money was not banked but denied having stolen it, and the precise amount missing was not in issue.

Discussion

[36]   In my assessment, the assumptions of Ms Monkley and Ms Ashton were not the principal reason for the Judge’s conclusion on the question of responsibility for banking the money. But they did support the inference he drew from the written job description. That inference was not only open to him but a correct conclusion based on the actual job description. While it may at first blush seem odd that the detailed job description made no mention of banking, it is the type of incidental activity which must logically be encompassed within responsibility for the school’s finances. Ms Jones gathered the money received by the school, placed it in the safe, and checked the bank account. Ms Jones must have been aware of the limited roles of the office assistants. Even if she considered them responsible for banking, she would have noticed they were not in fact undertaking the task when she checked the bank account.

[37]   Mr Taylor’s submission that it would be common sense to have a separate employee responsible for banking may well be correct in the abstract, but this does not align with the evidence of the school’s disorganised procedures. Thus, the evidence of an expert was neither necessary nor likely to be of assistance to the Judge.

[38]   I further agree that is implausible that both Ms Monkley and Ms Ashby had misappropriated cash over different periods, especially while Ms Monkley worked

part-time. It is also implausible to imagine another person was regularly able to enter the office and remove money from the safe over the entire period of Ms Jones’ employment. The Judge’s credibility finding after hearing and seeing the witnesses adds heft to his analysis.

[39]I find no error in the Judge’s assessment of the evidence.

Result

[40]The appeal against conviction is dismissed.

............................................................

Walker J