Anderson v Bigmore; Bigmore v Anderson [2006] ACTSC 85

3. Both of the alleged offences involved allegations of dishonestly appropriating artworks, with the first relating to an acrylic painting entitled "Cars" and the second relating to a pastel painting entitled "Still Life". The appellant did not deny appropriating the paintings specified in the two charges. The only real issue was whether she had done so dishonestly.

4. The element of dishonesty in offences of this nature is defined by s 130.3 of the Criminal Code Act 1995 (Cth) which provides that:

For the purposes of this Chapter, dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

5. The appellant was a Commonwealth officer employed in the Department of Immigration and the appropriations occurred whilst the Department was in the process of moving some of its staff from their existing offices into the South Building in Canberra. She claimed, in essence, that she had believed that the paintings were to be discarded and that she had been given permission to take them.

6. A similar move had been undertaken in April 2003 when the section of the Department in which the appellant had been employed was moved into the North Building and the appellant had been involved as a "move manager" with other officers of her section. At some stage prior to the arrival of the removalists she had walked through the area of the building about to be vacated by her section and had had a discussion with a Ms Robinson-Obst, who was an Assistant Director of the Department, concerning various items that had been marked with stickers to designate that they were not to be taken to the new premises. The Department had apparently been concerned to create a new image and many assets thought to be incompatible with that image had been marked for disposal irrespective of their condition. The appellant gave evidence that she had noticed a particular print named "View of Sofala" which had apparently been marked for disposal and asked Ms Robinson-Obst if she could take it for herself. She said that Ms Robinson-Obst had told her that if she liked it she could take it. The appellant also said that she had taken the painting off the wall in the presence of Ms Robinson-Obst and two other officers and had then placed it in her car.

7. The appellant's account of this conversation was corroborated by another witness, Ms Schofield, and, whilst Ms Robinson-Obst gave evidence that she could not recall the conversation, she did not deny that it might have occurred. Ms Robinson-Obst also explained in evidence that whilst there had been procedures for the disposal of old government furnishings, there had not been much market for old art work and that it had tended to end up at the tip.

8. Counsel who then appeared for the respondent did not challenge the appellant's evidence as to the circumstances in which she came to take this painting and no charge was laid in relation to that appropriation.

9. The appellant gave evidence that shortly prior to the second move in November 2004, she had had a further conversation with Ms Robinson-Obst during which she had asked her whether there was a similar arrangement, in that she could help herself to pictures marked for disposal. She said that Ms Robinson-Obst had replied "If there is something there that has been marked and you were interested in that you could help yourself. I don't want to know about it".

10. The appellant said that she had gone to a party on the evening of 26 November 2004 but left some time before 11.00 pm with her sister and gone to the Benjamin Offices. She and her sister had then gone from floor to floor looking for items that had been labelled with what she described as "the dot sticker", which she had understood designated items that had been marked for disposal and were "available for removal". She also explained that she had understood that the art works marked for disposal were "going to be trashed". During the course of her evidence in chief she said that when she and her sister found the paintings in question they had been puzzled as to why they had been labelled with a dot sticker because they had appeared to be originals and had wondered whether they may not have been correctly labelled. However they eventually decided to remove them. She said that there had been a lot of other people in the building at that time. At least some had been removalists but she was unable to say whether other people from the Department had also been present.

11. She maintained that she had not acted dishonestly in taking the paintings, though she conceded that, in hindsight, she no longer thought that she had been allowed to do so.

12. In cross-examination the appellant agreed that she had known that there had been a procedure for the disposal of assets and that she could have sought advice from a "property section for the new building team". She said that she had known that some art works had been owned by "Artbank", and "leased" to the Department of Immigration, though it was suggested in argument that Artbank was merely another government agency and Mr Livingstone, who appeared for the appellant, did not raise any issue about whether the paintings in question had belonged to the Commonwealth as alleged. In any event, the appellant said that she had not been aware that Artbank stickers had been on the back of the pictures she had taken. She also said that it had not occurred to her to look at the back of the pictures to see if there had been any other identifying marks, though she agreed, in hindsight, that it would have been a prudent thing to have done. She also said that it had not occurred to her to "double check" whether the dot stickers had been correctly placed on them. It was put to her that it would have been appropriate to have told someone that she had taken these particular paintings and she agreed, again in hindsight, with this proposition. However, she rejected a suggestion that Ms Robinson-Obst had not actually told her that she could help herself to anything that had a sticker on it.

13. The basis for this last suggestion did not emerge with any clarity from the evidence. Ms Robinson-Obst had given evidence that in the weeks before the move coloured stickers had been placed on items to be taken to the South Building, with different colours designating the intended floors, and "ex-government" stickers had been placed on items intended for disposal. She did recall a conversation with the appellant about artworks that she thought had occurred several weeks before the move but said that, even when first interviewed about the matter, the lapse of time had made it difficult for her to provide anything but a rather vague account of the conversation. She responded to a question about whether she had said that the appellant could have paintings with no labels on them, by saying: "Not so much she could have it. It was that I wasn't concerned what happened to it". However, when it was put to her that she might have used the words, "I don't want to know", she said that she thought she had. She also agreed that she might have told the appellant that items with stickers on them were to be disposed of. She initially said that neither of the paintings in question had been so labelled but agreed in cross-examination that dot stickers may have been left on them from a previous move.

14. The appellant's evidence that she had not acted dishonestly was not directly traversed in cross-examination and she was not asked any questions about her understanding about what Ms Robinson-Obst may have meant when she said "I don't want to know about it". Nor was she asked any questions about whether she had subsequently resolved her doubts about whether the stickers had been correctly placed on the paintings she had taken or, if not, how such doubts could have been reconciled with her claim that she had not acted dishonestly.

15. After adverting to the elements of the offences charged, his Honour stated that on the prosecution evidence, there had to be a conviction. He then asked, rhetorically, whether the evidence given by the defendant and her corroborative witness, Ms Schofield, raised a doubt sufficient for him to say that the prosecution had not proven its case to the requisite standard. He proceeded to set out the appellant's evidence "at its highest" and, after adverting to her evidence of the conversation with Ms Robinson-Obst, said:

Accepting that it did take place, I must also accept that Ms Robinson-Obst put a rider on her seeming permission to remove anything that had been marked for disposal. With the rider being "I don't want to know anything about it". The defendant repeated this on a number of occasions both in evidence and her two conversations with Mr Bigmore.

It was submitted that I should not give this any weight as there has been no cross-examination concerning it. I don't accept that. I take it to be a very clear indication that the defendant was on notice that what was proposed was not entirely appropriate.

16. His Honour referred to the circumstances in which the paintings had been taken and said that he was unable to accept the appellant's evidence "in total", though he had taken into account the evidence of her good character. He then proceeded made the following findings:

In assessing the evidence, I accept that a print was taken with Ms Robinson-Obst's permission in 2003. I make no comment as to whether she was entitled to give such permission and whether the defendant knew of that. Accepting that the defendant went to the premises late at night and wrapped the two original paintings in bubble wrap and took them to her residence after being concerned that they were going to be dumped, I'm of the view that her actions were not in accord with the standards of ordinary people.

There were significant differences between her taking the print in 2003 and the removal of these two paintings. The print was obviously of much less value. She showed it to the person who had given her permission to remove it and she removed it openly from the Department during working hours. In the present case, even allowing that permission had been given, she removed two original paintings that were obviously of value, given that she wrapped them in bubble wrap to remove them, she was concerned that they were to be dumped and made no enquiry as to whether her suspicion was correct or not.

I don't accept that she didn't see the sticker on the reverse of one of them. On her own evidence in the circumstances put forward by her, I find that her conduct was dishonest according to the standards of normal people. She was aware that she was removing property that belonged to the Commonwealth, from the Commonwealth, not in accordance with acceptable standards of disposal of that property and was surprised that such items were said to be for disposal, yet made no enquiry as to whether she was entitled to so remove it.

This removal took place before the move was complete and in circumstances where the defendant knew that the disposal did not, of necessity, mean the property was, in her words, to be dumped. I do not accept that this was a case of mistake. I accept the defendant had, at least, reservations about the propriety of her removing the items and did nothing about it.

In the circumstances, I find the offence proved.

17. Mr Livingstone then commenced to make a further submission based upon the good character of the appellant but was almost immediately interrupted by his Honour who added the following comments:

Well I take this to be - to short-circuit you Mr Livingston, I take this to be a matter of very poor judgment. That it's not a matter of, in my view, straight out dishonesty. That is, straight out intention to totally deprive. I take it, as I said, the dishonest conduct in not being conduct of an ordinary member of society. I know the - I know the act speaks of dishonesty.

18. Mr Livingstone submitted that these statements revealed that his Honour had applied the wrong legal test and that the appellant should have been acquitted. An error of judgment, however egregious, could not have constituted the fault element required by each of these charges. What was required was proof of actual dishonesty and his Honour seems to have found that that element was lacking. The concept of dishonesty in s 130.3 did not extend to any conduct that a person thought might be contrary to community standards of propriety.

19. Whilst it is true that his Honour's explicit findings to the effect that the appellant's conduct had been attributable to an error of judgment rather than "straight dishonesty" were made after his Honour had already found the offences proven, they were clearly intended to provide further clarification of the basis for that finding. In any event, it is clear, even from the earlier remarks, that his Honour accepted the appellant's evidence that she had previously been given permission to take the print "View of Sofala" and that he found "dishonesty" in the subsequent removal of the paintings that were the subject of the charges only by reason of her having had reservations as to the propriety of that conduct. It was this proposition that his Honour apparently sought to clarify or explain by his further finding that the appellant's conduct had been attributable to an error of judgment rather than "straight" dishonesty. His Honour seems, in substance, to have concluded that the appellant had made an error of judgment in proceeding to take the paintings without making further enquiries with a view to resolving whatever doubt had been in her mind about the propriety of relying upon the permission she had been given by Ms Robinson-Obst.

20. In my opinion, this approach should not be too readily dismissed. The appropriation of another person's property by someone who has reservations as to the propriety of that conduct may well be dishonest according to the standards of ordinary people, even if falling short of actual theft. Furthermore, a finding that a person has made an error of judgment is not necessarily inconsistent with a finding that he or she has acted dishonestly, though much will depend upon the circumstances revealed by the evidence and the nature of the judgment. The mere fact that an offender misjudged the prospects of eluding detection would obviously not inhibit a finding of dishonesty. On the other hand, such a finding would be quite inappropriate if the relevant act had been made in good faith due to an honest mistake, even one attributable to carelessness or neglect. Furthermore, there may be circumstances in which even well motivated people may conscientiously disagree as to the extent to which the demands of honesty may require someone to pursue enquiries in order to dispel vestiges of doubt.

21. The concept of dishonesty in s 130.3 involves not only the objective test in subparagraph (a) but also the subjective test in paragraph (b). The latter test does not relate to any idiosyncratic views of dishonesty held by the alleged offender but depends rather upon whether he or she knew that the act in question was dishonest according to the standards of ordinary people. It is incumbent upon the prosecution to prove beyond reasonable doubt that the defendant acted with such knowledge and, in the absence of any relevant admissions, proof of that element will be dependent upon circumstantial evidence. In some cases it may seem obvious that the defendant must have known that the conduct was dishonest according to such standards, but in others the possibility of a mistake of fact or even, perhaps, misapprehension as to the manner in which conventional standards of honesty would apply to the situation he or she confronted may require careful consideration. Perceptions may vary and the mere fact that a prosecutor is able to point to facts and circumstances which can be seen, in hindsight, to support a conclusion that a defendant should have realised certain things may not exclude the possibility that he or she had actually formed a quite different impression at the time.

22. In the present case there were a number of suspicious circumstances, including the comment by Ms Robinson-Obst that his Honour described as a "rider", the taking of the paintings late at night, the appellant's concern that they might have been incorrectly labelled and her subsequent failure to make further enquiries. These and some other factors mentioned by Mr White, who appeared for the respondent, provided a strong prima facie case, though I note, in passing, that most came to light only because the appellant volunteered them during the interviews and/or her evidence in chief. On the other hand, as his Honour quite properly observed, it was necessary to take into account the potentially exculpatory evidence of the complainant and other witnesses, including the evidence as to her character.

23. It was also necessary to ensure that the appellant had a fair opportunity of responding to any significant allegations against her. Yet, as previously mentioned, her evidence that she had not acted dishonestly in removing the paintings was not directly challenged in cross-examination and she was given no opportunity to deal with the adverse connotations later placed on things she had volunteered during the interviews with Mr Bigmore and/or during her evidence in chief. The proposition that she had acted dishonestly because of reservations about whether Ms Robinson-Obst had, in effect, been offering to turn a blind eye to misappropriation was never suggested to her. Indeed, there is nothing in the appeal book to indicate that the proposition was advanced prior to the final addresses.

24. Courts have long insisted upon the elementary rule of fairness commonly referred to as the rule in Browne and Dunn. The rule was derived from the case of Browne v Dunn (1893) 6R 67 in which Lord Herschell LC said at 70-71:

. . . I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

25. Lord Halsbury said at 76-77 that he could not too heartily express his concurrence with the Lord Chancellor as to these general principles. Lord Morris also expressed qualified agreement at 78-79.

26. In essence that rule provides that counsel who are intending to submit that some part of the evidence given by a witness should not be accepted must challenge it in cross examination by putting to the witness the facts and circumstances that are to be relied upon in support of that submission, so that he or she has a fair opportunity of providing any relevant explanation or sworn denial. The rule neither requires nor is satisfied by questions simply embodying a ritualistic formulation such as "I put it to you that what you said about x is not true". What is required is a series of questions calculated to inform the witness of the suggested grounds for such a contention and to provide a fair opportunity of responding to them. If that is not done, a witness might conclude his or her evidence without realising that the opposing counsel was acting upon a misapprehension that could have been dispelled. In the present case, for example, it was submitted that Ms Robinson-Obst's statement could only have indicated that she was prepared to turn a blind eye to what amounted to theft. Had this been put to the appellant, let alone to Ms Robinson-Obst, she may have explained that she had thought that Ms Robinson-Obst did not wish to be further troubled about the matter, that she had assumed that she had not wanted to deal with it formally through the relevant bureaucratic procedures, that she had placed some other connotation on the remark or that she had not really thought about its possible implications. She may also have been able to give evidence of her knowledge of Ms Robinson-Obst's reputation and character and other factors that might have caused her to dismiss any such implication. In any event, it was clearly inappropriate to act upon an assumption that the appellant must have drawn such an implication from these words, when she had been given no opportunity to dispel that assumption. Similar considerations apply to other aspects of the evidence relied upon by the respondent.

27. There may be circumstances in which it is unnecessary for a cross-examiner to put a particular proposition to a witness because, for example, the point had been previously foreshadowed, though, as the authors of Cross on Evidence suggest at [17445], this exception to the rule generally applies only when the issue is a relatively clear and obvious one. The rule may sometimes be departed from because the relevant assertion is transparently implausible or even for reasons of convenience such as when, for example, a number of witnesses have already given similar evidence and have been cross-examined as to the same issues. An apparent breach of the rule may be addressed in different ways. In some cases, for example, it may be appropriate for a judge or magistrate to simply permit counsel for the relevant party to reopen his or her case in order to have the witness recalled, though in a criminal case it would rarely, if ever, be appropriate to respond to a prosecutor's failure to comply with the rule by suggesting that the accused person venture into the witness box again and expose himself or herself to a second round of cross-examination. I hasten to say that this was not suggested in the present case.

28. The rule does not, of course, require a judge or magistrate to accept any unchallenged evidence of a witness no matter how implausible but, in the absence of some well-recognised exception, a failure to challenge potentially decisive evidence in accordance with the rule will often lead to a conclusion that it should be accepted. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Hunt J discussed the relevant principles before turning to the case with which he was concerned and making the following observations at 26:

That rule was not complied with in the present case. The consequence of that non-compliance does not, of course, mean that I cannot accept the submission by the Commissioner that, by reason of the inferences available from the evidence as a whole, I should disbelieve the evidence led on behalf of the taxpayer. It is clear from all the cases that it does not mean that. But, as it was said by the Court of Appeal in Poricanin's case [1979] 2 NSWLR 419, at pp 426, 427, it would in many cases be wrong, unreasonable or even perverse for a tribunal of fact to reject evidence upon which there has been no relevant cross-examination. I am satisfied with the description that it would usually be unfair to do so where the rule in Browne v Dunn has not been complied with, and where the witness has not otherwise been given the opportunity to deal with the suggestion now made . . .

29. A somewhat similar approach had earlier been taken by the High Court of Australia in Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362. That case involved an appeal from a decision of the New South Wales Court of Appeal, which had set aside an assessment of damages by a jury. Gibbs J, with whom Stephen and Murphy JJ agreed, adverted to the plaintiff's evidence as to how long she had intended to continue working and stated that:

If it had been intended to suggest that she was not speaking the truth she should have been cross-examined on this matter so that she might have had an opportunity of explanation . . . but she was not in fact cross-examined on her answer. The respondent's evidence that she intended to work until she reached the age of fifty-five was not inherently incredible. She had in fact been engaged in employment for most of the time during which she had been in Australia before the accident, and had only given up employment when it was necessary to care for her child. In these circumstances, in my opinion, the jury, acting reasonably, were bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of fifty-five.

30. A Full Court of the Federal Court of Australia has also had cause to consider whether a failure to comply with the rule may justify appellate intervention. Whilst noting that the rule is not an absolute one and that the question of unfairness must be determined by reference to the circumstances in which the issue has arisen, Hill, O'Connor and Moore JJ stated that a finding made in breach of the rule will be set aside: see Stern v National Australia Bank Ltd [2000] FCA 294; (2000) 171 ALR 192 at [43].

31. As previously mentioned, the case put to the appellant in the present case was simply that Ms Robinson-Obst had not told her that she could take any of the artworks. The proposition that Ms Robinson-Obst had spoken words ostensibly conveying permission but, in reality, implying that she had been willing to turn a blind eye to what amounted to theft was never suggested to either woman and, even on appeal, the respondent did not challenge Ms Robinson-Obst's integrity. Mr White did submit that it was not Ms Robinson-Obst's intention but rather the impression created in the appellant's mind that was important. That may be so but, as already mentioned, it had not been put to the appellant in cross-examination that she must have formed the impression that Ms Robinson-Obst had been making such a dishonest overture and the suggested basis for her to have read such an implication into her words had not been canvassed with her. Indeed, whilst written submissions apparently relied upon in the Magistrates Court were not reproduced in the appeal book, there was nothing in the material before me to suggest that such a contention had formed part of the respondent's case. In any event, the plaintiff was entitled to have the credibility of her sworn evidence that she had not acted dishonestly judged by reference to matters fairly put to her by the prosecutor in cross-examination.

32. The crucial findings were clearly made in breach of the rule in Browne v Dunn and cannot stand.

33. I did give some consideration as to whether there should be a retrial of the charges but, given the manner in which the matter was conducted, I have concluded that this would be inappropriate. Having found that this was not a case of "straight dishonesty", which seemed to have been the only case put forward by the respondent, his Honour should have acquitted the appellant rather than making a finding of guilt on a different basis that she had been given no opportunity to rebut in cross-examination. It would not be fair to now order her to be retried and permit the respondent to re-litigate a case rejected by his Honour and/or advance a case that could have been put to her in the earlier hearing.

34. The appeal will be upheld, the findings set aside and, in lieu thereof, the appellant acquitted.

35. In view of these orders, the appeal by the respondent must obviously fail. However, I would, in any event, have dismissed it. The appeal book reveals that when the possibility of dismissing the charges pursuant to s 19B of the Crimes Act was raised with counsel for the respondent the following exchange occurred:

Only very brief your Honour. In some respects I support my learned friend's assertion that . . .

HIS HONOUR: In what respects don't you?

. . . in the 19B application. The Commonwealth has their property returned. Your Honour's found his judgment on poor judgment exhibited by the defendant. It's not in that higher end of criminality, if I can put it that way your Honour. Even though your Honour found against the defendant, the defendant is a person of good character as Mr Livingston has suggested. There's no indication that this conduct would eventuate again.

If you like - if your Honour wishes me to address on the other penalties, a section 20 bond?

36. His Honour declined the invitation and proceeded to discharge the appellant. I do not accept that his Honour could have been found to have fallen into error by applying the provisions of s 19B when he had found that the relevant offences had been attributable to an error of judgment and when counsel for the respondent had not only failed to oppose such a disposition of the matter but had provided support for it.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Counsel for the appellant/respondent: Mr R Livingston

Solicitor for the appellant/respondent: Pamela Coward & Associates

Solicitor for the respondent/applicant: Commonwealth Director of Public Prosecutions