Reed v Bacon [2012] NTSC 32

 

PARTIES:                                         REED, Nouvelle Denise

 

                                                         v

 

                                                         BACON, Daniel

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA 30 of 2011 (21028724)

 

DELIVERED:                                   11 May 2012

 

HEARING DATES:                           2 May 2012

 

JUDGMENT OF:                              RILEY CJ

 

APPEAL FROM:                               D TRIGG SM

 

CATCHWORDS:

 

CRIMINAL LAW – Obtaining property by deception - Appeal against conviction – Whether the Magistrate erred by making findings of fact - appeal dismissed

 

Criminal Code (NT) s 227(1)(a),

 

Barca v The Queen (1975) 133 CLR 82, Edwards v The Queen (1993) 178 CLR 193, Shepherd v The Queen (1990) 170 CLR 573, referred to

 

 

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     P Elliott

    Respondent:                                  E Armitage

 

Solicitors:

    Appellant:                                     Edmund Barton Chambers

    Respondent:                                  Office of Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       Ril 1209

Number of pages:                             17


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Reed v Bacon [2012] NTSC 32

No. JA 30 of 2011 (21028724)

 

 

                                                     BETWEEN:

 

                                                     NOUVELLE DENISE REED

                                                         Appellant

 

                                                     AND:

 

                                                     DANIEL BACON

                                                         Respondent

 

CORAM:     RILEY CJ

 

REASONS FOR JUDGMENT

 

(Delivered 11 May 2012)

 

[1]       At all material times the appellant was a superintendent in the Northern Territory Police Service (NTPS). She was charged with six offences alleging dishonesty on her part. Following a trial in the Court of Summary Jurisdiction she was acquitted of five of the six charges and found guilty of one, namely that by deception she obtained $100 from the Northern Territory of Australia contrary to s 227 (1) (a) of the Criminal Code.[1] She appeals against the finding.

[2]       The appellant, as a superintendent, had a delegation from the NTPS to spend an amount which was not clearly identified, but was more than $100, for "official work-related purposes". The prosecution case was that on 6 February 2009 the appellant purchased the use, for one month, of a Darwin City Council car park for her sister, SK, by using her personal credit card. On 5 March 2009 the appellant submitted to the NTPS a petty cash reimbursement form in relation to that amount and was paid $100 as claimed. There was no dispute as to those matters. The prosecution case was that by making the petty cash claim the appellant asserted that she had expended $100 for official work-related purposes whereas she had, in fact, expended the money on a gift of car parking to her sister.

[3]       SK was an employee of the NTPS who was not entitled to a work allocated car park. Prior to the material dates SK was employed at the Peter McAulay Centre at Berrimah where car parking was provided free of charge. At the relevant time she was compulsorily transferred to work in the city to replace another worker who was taking leave. When transferred to the city it became necessary for SK to make her own arrangements in relation to parking.

The hearing in the Court of Summary Jurisdiction proceeded over many days between March and August 2011. On 22 June 2011 the presiding magistrate held there was no case to answer in relation to three of the charges. On 31 October 2011 his Honour dismissed two further charges and proceeded to find the appellant guilty of the offence of obtaining $100 by deception from the Northern Territory of Australia.

Ground 1: the learned magistrate failed to consider, and rule upon, the question as to whether the appellant had the authority to purchase a car park for her sister, an employee of NT police.

Ground 5: the learned magistrate erred in finding that: "by inserting the tax code of 16AAA158 (the appellant) was asserting that the expense was connected with the 2009 PCC. I find that this was untrue and a deliberate deception".

[4]       It was submitted on behalf of the appellant that she was authorised to expend the sum of $100 on matters relating to police business and that the delegation under which she proceeded did not prohibit her from purchasing a car park for her sister or any other employee of the NTPS. Reference was made to a range of witnesses called on behalf of the prosecution and it was submitted that no witness could provide any evidence that showed the appellant was not entitled to make the expenditure the subject of the charge. It was said that the best the prosecution could advance was that it was "inappropriate" or that SK "was not entitled to a car park". However, it was acknowledged on behalf of the appellant that the authorisation of the appellant was qualified by the requirement that any expenditure must be related to "official work-related purposes".

[5]       The learned magistrate conducted a lengthy and detailed review of the relevant evidence in the reasons for decision. His Honour concluded that when the appellant purchased the car park for her sister it was not "for a proper work-related purchase, but was a personal matter between sisters". His Honour observed that the appellant did not seek approval from anyone regarding the provision of the car park for SK and that she "at all times was aware that if she asked the answer would have been a very clear and unambiguous ‘no’." In so concluding the magistrate relied upon a strong evidential basis.

[6]       The claim for reimbursement submitted by the appellant included a reference to “PCC: Carparking China Town” and a tax code, 16AAA158, both of which necessarily referred to the Police Commissioners Conference which the appellant was then organising. The claim form made no mention of SK and necessarily suggested that the car park was for the purposes of the Police Commissioners Conference.

[7]       The evidence was that the employment of SK in this period was as an administrative assistant for a Commander and, as his Honour found, did not involve her working “exclusively or even substantially” in relation to the conference. SK had no specific duties in relation to the conference but did have some involvement with the conference by assisting when members of staff were "really busy". His Honour concluded that the reference to the tax code was intended to suggest the expense in relation to which the appellant sought reimbursement was connected with the forthcoming conference when it was not.

[8]       The appellant entered into a record of interview which was received into evidence. When asked who the car park was for she responded that it was for herself and her sister and that the appellant had used it about 20% of the time. When asked why she claimed the $100, the appellant asserted that it was "because I was using it as well for (the conference), both of us were using it". Later in the interview the appellant acknowledged that she provided the car park to her sister "out of goodwill". The magistrate found that the subject car park was obtained by the appellant for the sister alone.

[9]       The evidence demonstrated, and his Honour so found, that the appellant was not using the car park. The appellant had her own car park. SK advised that, so far as she knew, she was the only person to use her car park. She did not know where the appellant parked. The car park was always available to SK and she had possession of the relevant permit. The documentation revealed the car park was dedicated to her vehicle alone. No other witness claimed to have used the car park.

[10]     The appellant did not suggest during the record of interview or at any other time that the provision of the car park to SK related to any work SK did or was to do in relation to the conference. SK gave evidence in the proceedings in which she made it clear that no one had offered her a paid car park as an inducement to work in the city. She expected to be parking in the street or wherever she could find appropriate parking. She said she was given the relevant permit by her sister, the appellant, and there "was no discussion, it was just given to me and I just – yeah, just took it". When asked whether she understood that it was a work entitlement SK said that she "didn't think about anything, it was just given to me".

[11]     There was a clear evidential basis for the conclusion of his Honour that the car park was used by SK alone.

[12]     In the record of interview the appellant also claimed that the purchase of a car park had been approved by the then Commissioner of Police. The Commissioner gave evidence and denied this was so. The magistrate accepted the evidence of the Commissioner and found that the Commissioner only ever gave approval for the provision of a car park to another person, GR, who had been seconded onto the conference project as a coordinator with the appellant.

[13]     In all the circumstances his Honour concluded that the inclusion of the reference to “PCC: Carparking China Town” and the tax code was a deliberate deception on the part of the appellant stating:

I find it was intentional for SK to use the car park. (The appellant) subsequently decided to try and get the money back by pretending that the car park was there for the (conference), when in truth it was for the use of SK. (The appellant) knew SK was not entitled to a car park. (The appellant) also knew that no person in the Police would ever have approved SK getting a car park. Hence (the appellant) knew that it was not a legitimate work-related expense. The way (the appellant) completed Ex P9 was an intentional deception.

[14]     In reaching his conclusions the learned magistrate identified various lies told by the appellant in her record of interview. Those lies included her evidence:

a)         that the car park was intended for the use of the appellant and her sister when it was always intended for the use of SK alone;

b)        that the appellant did not have a car park at the time when the case was that she did have such a car park;

c)        that the appellant used the car park about 20% of the time when SK "had virtually 100% use of the car park";

d)        that the Commissioner had approved the acquisition of a car park for GR and herself or for general use in relation to the conference when he did so only for GR who did not share the car park with anyone; and

e)        that the car park was for the use of others when it was for the use of SK alone.

[15]     In the court below it was submitted that these, and other lies claimed by the prosecution to have been told by the appellant, were Edwards[2] lies that is deliberate lies indicating a consciousness of guilt. Although his Honour did not expressly identify the lies as Edwards lies, reading the reasons for decision as a whole it is apparent that the magistrate used the identified lies as indicating a consciousness of guilt and as contributing to the circumstantial case presented by the prosecution. His Honour had been taken to Edwards and the prosecution identified in writing what it claimed were lies in relation to which the case had application. The findings of his Honour were made in that context. In any event, as has been shown, even if the lies were not to be treated as Edwards lies, there was ample other evidence to demonstrate beyond reasonable doubt the guilt of the appellant.

[16]     In my opinion, and contrary to the submission made on behalf of the appellant, the magistrate determined that the appellant did not purchase the car park for an official work-related purpose and therefore she did not purchase the car park within any the scope of authority from the NTPS. There was a compelling evidential basis for the conclusions reached. I find no error on the part of the magistrate.

Ground 2: the learned magistrate applied the wrong test as to how to treat evidence in a circumstantial case;

Ground 3: the learned magistrate applied the wrong test as to how to draw inferences in a circumstantial case;

Ground 4: the learned magistrate effectively reversed the onus of proof in excluding hypotheses consistent with innocence.

[17]     The thrust of the submissions made on behalf of the appellant in relation to these three grounds was that his Honour erred in failing to give due consideration to a possible innocent explanation not mentioned by the appellant in her record of interview. It was pointed out that there was some evidence that SK was involved in some work in relation to the conference. There was also evidence that the appellant was in charge of "the overwhelming majority of the organisation" of the conference. Therefore, it was submitted, his Honour should have considered whether this provided an innocent explanation for the inclusion in the claim for reimbursement completed by the appellant of the words “PCC: Carparking China Town” and the identified tax code.

[18]     It was submitted that the magistrate precluded himself from considering whether the appellant, through the passage of time and because of the circumstances of the interview, had become confused or panicked in her answers in the record of interview. It was further submitted that the magistrate did not consider whether the reason that the tax code and the words "PCC; Car parking China Town" were inserted into the claim form simply because a code and description were required to complete the form. Finally it was submitted that the magistrate did not consider whether SK had performed work for the Police Commissioners Conference and that therefore there was no deliberate deception involved in the use of these inclusions in the form.

[19]     The basis of the submission centred upon observations made by his Honour in discussing the approach to be taken to circumstantial evidence. However, the submission failed to recognise that the observations, which were isolated by the appellant and criticised, took place in a wider discussion and had to be considered in light of that discussion. The submission also failed to note that the magistrate went on to undertake a detailed consideration of the evidence and considered the possible explanations consistent with innocence in light of the evidence.

[20]     Prior to dealing with the evidence the learned magistrate discussed the nature of circumstantial evidence and referred to the High Court cases of Barca v The Queen[3] and Shepherd v The Queen.[4] Inter alia his Honour included reference to passages within those judgements to the effect that an inference, to be reasonable, must rest upon something more than mere conjecture and that “the bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to a reasonable man upon a consideration of all the facts in evidence." The magistrate also reminded himself that a reasonable doubt must be entertained where "any other inference consistent with innocence is reasonably open on the evidence". The magistrate then noted that the record of interview of the appellant was before the court and provided evidence from the appellant as to her "actual reasons" and "intent" in acting as she did. His Honour went on to say:

I do not understand why the court should (or could) speculate on alternative reasons or intent (different to what Reed said) that were not actually in evidence.

[21]     In determining what inferences were reasonably open on the evidence the magistrate considered the whole of the evidence including the answers provided by the appellant in her record of interview. That, of course, was evidence to be considered and taken into account. The record of interview was not considered in isolation. His Honour considered the hypotheses reasonably open on the evidence rather than those simply raised by conjecture.

[22]     In addressing the matters now raised by the appellant his Honour concluded, on the basis of all of the evidence available to the court, that the work of SK in relation to the Police Commissioners Conference was minimal. In so concluding his Honour was entitled to take into account the fact that the appellant did not mention in her record of interview a connection between the provision of the car park and the work of SK in relation to the conference. In addition there was the evidence of others, which his Honour found to be reliable, as to the limited nature of the work required of SK as to the conference.

[23]     The magistrate made positive findings that the reason for the purchase of the car park was not work-related but, rather, was a matter "between sisters" in their private capacity. There was a strong evidentiary basis for so concluding. The possible alternative explanations suggested by the appellant as having not been excluded were excluded in light of those positive findings. A consideration of all of the evidence, including the record of interview, effectively excluded the hypothesis for which the appellant now contends. This process did not involve reversing the onus of proof but rather involved a consideration of the whole of the evidence available to the court.

Ground 6: the learned magistrate erred in relying upon his finding in 5 above to find a deliberate deception on the part of the appellant when the insertion of the tax code was not particularised as a deception relied upon by the prosecution.

[24]     The appellant claimed that the prosecution particularised the deception in relation to the offence as being that: "by making a petty cash claim (the appellant) was asserting that she had expended $100 for official work-related purposes whereas she had in fact expended the money on a gift of car parking to her sister who is not entitled to a work allocated car park". It was submitted that the particulars did not include reference to deception by the insertion of the tax code into the claim form. In response the respondent pointed to the Crown opening which included information that the Crown relied upon the "petty cash claim… knowing the particulars to be false". In my opinion the charge was sufficiently particularised including as to the nature of the deception alleged and subsequently found by his Honour. There was no suggestion that the appellant was not fully aware of the case being presented against her or that she was misled, prejudiced or disadvantaged in any way.

Ground 7: the learned magistrate erred in finding that by inserting the tax code 16AAA158 (the appellant) was asserting that the expense was connected with the 2009 PCC. "I find that this was untrue and was a deliberate deception", when there was no evidence capable of being accepted that this insertion was a source of deception to any person.

[25]     It was submitted on behalf of the appellant that the evidence did not establish that the reference to the tax code was a source of deception to any person. The evidence from Commander Dowd was that he approved the expenditure. He said the document which contained the initials PCC together with the attachments for the expenditure of $100 led him to understand that there was a previous $100 payment for a car park associated with the Police Commissioners Conference. The Commander had retired at about the time of this transaction and, at the time of giving evidence, did not recall what code 16AAA158 meant. However he said that at the time of authorising the reimbursement he would have had documentation available to him to list the codes. He agreed he would not necessarily check the vouchers but would expect those who had submitted the material to him to have done so to ensure that the correct code was used. In those circumstances it was submitted that his Honour should not have found that the witness actually checked the document. It was submitted that Commander Dowd was not shown to have been deceived and there was no evidence of any other person being deceived.

[26]     There was evidence that the tax code referred to expenditure relating to the Police Commissioners Conference and, indeed, that fact was admitted. It was also admitted that the appellant completed the relevant entries upon the reimbursement claim form. Contrary to the submission of the appellant Commander Dowd gave evidence that he expected the documents had been inspected and carried the correct code. He gave evidence that "PCC" stood for the Police Commissioners Conference and that he did not understand the claim was in fact for a car park for SK. Had he understood it was for a car park for SK he would not have approved the claim. In those circumstances the magistrate did not err in accepting the evidence of Commander Dowd that he signed and stamped the claim form believing he was approving a car park associated with the Police Commissioners Conference. He was deceived.

Ground 10: the learned magistrate erred in his characterisation of answers given by the appellant in her record of interview as untruths and/or deliberate deceptions.

[27]     During the course of the hearing the appellant applied for and was granted leave to add a further ground of appeal in the above terms. It is convenient to deal with this ground before dealing with ground 9.

[28]     The appellant submitted that the magistrate erred in characterising as lies the information provided by the appellant in her record of interview and referred to in paragraph [15] above. A detailed analysis of the evidence was conducted by counsel for the appellant and it was then submitted that on the basis of the evidence before his Honour explanations other than that the appellant lied were open and his Honour was wrong to conclude that the identified statements were lies.

[29]     The appellant referred to the finding of his Honour that the appellant lied when she claimed that the Commissioner had approved the acquisition of a car park for the Police Commissioners Conference for anyone other than GR. Reference was made to the evidence of the Commissioner where, in response to a suggestion that in the course of planning the conference he had raised the question of parking for people and the Commissioner responded: "I don't think that – well, I certainly don't remember that, no." It was suggested that his answers revealed uncertainty on his part and therefore it was not possible to conclude that the appellant lied in this regard. However reference to the balance of the evidence of the Commissioner makes the position clear. When asked whether he had ever approved a car park for SK he responded: "no, I didn't". He went on to say that his recall was that there was a conversation in relation to GR and car parking but he then firmly denied that there was any other conversation regarding car parking in relation to the Police Commissioners Conference. In my opinion the evidence revealed a lie told by the appellant.

[30]     His Honour found that the appellant lied in her record of interview when she said that she did not have a car park herself, that the purchase of the car park was for "myself and my sister" and that "both of us were using it". She also said that a range of people were using the car park. It was submitted on behalf of the appellant that the possibility that the appellant did not have a car park could not be excluded because, during the relevant period, the appellant took leave and may have lost access to her car park during that period. The evidence demonstrated that the appellant came to work on a regular basis during her period of leave and, it was submitted, may have purchased a car park for the use of herself and her sister.

[31]     In my opinion the appellant misunderstood the nature of the lie found by the magistrate. By reference to the record of interview it can be seen that the claim of the appellant was not that she did not have access to a car park whilst she was on leave. The appellant was asserting that she did not have a car park at all. She referred to not having a car park because "we didn't have enough parks at that time". In fact the documentary and other evidence revealed that she did have her own car park which was numbered 120. There was no dispute as to this fact. Her assertion that she did not have a car park at all was the relevant lie as found by his Honour.

[32]     As to the claim that the appellant shared the purchased car park with her sister and with others, including GR, the evidence was to the contrary. The appellant had her own car park. GR had her own car park. SK was not told that her car park was to be shared and she did not see anybody else use that car park. SK used the car park whenever she was there and she had no idea where the appellant parked her car. The only vehicle nominated for the car park was the vehicle of SK and SK had possession of the relevant parking permit. The conclusions of his Honour were reached upon a strong evidentiary foundation. I see no error.

Ground 9: the finding of guilt against the appellant was against the weight of the evidence.

[33]     Ground 8 was not pursued at the hearing of the appeal. In support of ground 9 the appellant repeated and relied upon the submissions made in relation to the earlier grounds of appeal. The appellant acknowledged that the making of the claim for reimbursement caused $100 to be paid to her. However it was again submitted that the prosecution failed to prove that the $100 was paid to her because of a deception perpetrated by her. It was again submitted that the particulars in relation to count 1 did not make reference to that which was written on the face of the petty cash reimbursement form. I have addressed these submissions above.

[34]     It was again submitted that the purchase of the use of the car park was within the authority of the appellant, and the appellant's sister was doing work on the Police Commissioners Conference, and, therefore, the purchase of the use of the car park was work-related. It was submitted that once the delegation to expend money on work-related matters was made, the delegation extended to any work related expenditure unless the delegation was removed for the expenditure in question. As I have already pointed out the difficulty with this submission is that the delegation to expend moneys was qualified by the requirement that the expenditure be for official work-related purposes. The magistrate, having considered all of the evidence, determined that the subject expenditure was not for an official work-related purpose and was a private gift by the appellant to her sister. It follows that the expenditure was not within the appellant's delegation.

[35]     The magistrate provided comprehensive reasons for reaching the conclusion that the appellant knowingly made an intentional deception whereby she received $100. Those reasons were supported by evidence in the proceedings. I see no reason to interfere with the conclusions of his Honour.

[36]     The appeal is dismissed.



[1] [2011] NTMC 007; [2011] NTMC 043.

[2] Edwards v The Queen (1993) 178 CLR 193

[3] (1975) 133CLR 82 at 104.

[4] (1990) 170 CLR 573 at 579-80.