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[2012] WASC 436
General information, not legal advice.
Supreme Court of WA
2012-11-16
Hall J
Original judgment source is linked above.
1 On 20 December 2011 the appellant was convicted of ten offences of stealing as a servant, contrary to s 378(6) of the Criminal Code (WA) (the Code) and one offence of dishonestly obtaining a financial advantage, contrary to s 409 of the Code. Those convictions followed a trial in the Magistrates Court at Mandurah which took place on 12 and 15 December 2011. Following her conviction, the appellant was sentenced to a global fine of $10,000 and ordered to pay compensation and costs. The appellant now seeks leave to appeal against her conviction.
2 An appeal notice was filed on 11 April 2012. This was approximately three months out of time. The appeal notice indicated that an extension was sought and an affidavit in support of that application was filed on 2 May 2012. The affidavit of the appellant states that she did not apply for a transcript of the proceedings until 2 February 2012 and that she received a copy of the transcript on 21 February 2012. She instructed her lawyers to give her advice as to an appeal on or about 23 February 2012. That advice was provided on 28 March 2012. On 5 April 2012 she instructed her lawyers to commence an appeal.
3 The explanation given by the appellant does not justify her delay. If a person believes that they have grounds on which to appeal they should file a notice of appeal within the time allowed. If the grounds need to be amended later in light of the transcript or subsequent legal advice then that is a better course than applying for an extension of time in which to appeal. The delay here is significant and not justified. The time limits exist for good reason and an extension cannot be lightly granted.
4 However, an extension will be granted if it can be established that a miscarriage of justice will occur if an extension is not granted: McLeod v The State of Western Australia [2009] WASCA 233 [79] (McLure P). In order to determine whether an extension should be granted in this case it will be necessary to give consideration to the merits of the proposed ground of appeal.
The hearing was unfair because of the learned magistrate's constant interventions and a miscarriage of justice has resulted.
6 The trial in this matter proceeded over two days and extended to some 200 pages of transcript. The ground of appeal did not identify the interventions referred to. However, written submissions included a schedule setting out a number of passages from the hearing. These passages were said to evidence interruptions by the magistrate in the proceedings which, taken together, resulted in the trial being unfair.
7 It was argued that the interruptions were inappropriate for a number of reasons. In some cases it was suggested that the interruption had caused defence counsel not to pursue an issue or to lose his way. Other interruptions were said to have unfairly assisted the prosecutor. It will be necessary to consider each of the passages referred to to determine whether the appellant's submissions are made out.
8 The appellant relies upon the cumulative effect of the alleged interruptions. I accept that interruptions when viewed individually may not be considered unfair but it is possible that a different conclusion may be reached when viewed in totality. It is, however, also necessary to consider the passages referred to in the context of the trial as a whole. For this reason I have read the whole transcript of the trial and will refer to the context in which each passage appears.
9 It is important to note that the appellant does not make any allegation of bias or perceived bias by the magistrate. On the hearing of the appeal counsel for the appellant confirmed that bias was not alleged and that the only ground relied upon was that the trial was unfair by reason of interruptions by the magistrate in the proceedings.
10 Where it is contended that a trial has been unfair by reason of the conduct of the presiding judicial officer the test to be applied is whether the impugned behaviour has created a real danger that the trial was unfair: Michael v The State of Western Australia [2007] WASCA 100 [63] (Steytler P). That question depends principally on whether the appellant had a proper opportunity to advance his or her defence to the charges: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 11 (Gaudron ACJ, Gummow, Kirby & Hayne JJ).
11 Where it is alleged that a trial judge or magistrate has excessively interfered with the conduct of the case, the appropriate test is whether there has been 'such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice': R v Mawson [1967] VicRp 23; [1967] VR 205, 207 (Winneke CJ, Adam & Barber JJ). Examples of interference that may result in a miscarriage are where a party is prevented from putting their case properly, where a witness is prevented from giving a full account of the facts or where the opposing party is given an unfair advantage.
12 It is not improper for a judge or magistrate to put questions to witnesses with a view to clarifying an answer, where it appears that a witness has misunderstood a question put by counsel or where he or she considers that an issue has not been sufficiently cleared up: Yuill v Yuill (1945) 1 All ER 183, 185 (Lord Green MR); Rowland v The Police (2001) 79 SASR 569 [60] (Perry J). There is greater latitude for questioning by a judge or magistrate who is acting as the finder of fact.
13 Whether interruptions by a magistrate have resulted in the trial being unfair will be a question of fact and degree. It will be necessary to consider the number of interruptions, the nature of them, the point in the proceedings at which they occurred and the context of them in the trial as a whole. The context is significant because it is necessary to consider whether interruptions have had the effect of so distorting the trial process as to bring about a miscarriage of justice: R v Davies (1984) 3 NSWLR 572, 575 (Street CJ).
14 Whether a particular trial has been rendered unfair will always depend upon an assessment of the particular circumstances. The appellant has sought to rely upon two previous appeals relating to the same magistrate: Wragg v Bond [2009] WASC 383; Carley v Shepherd [2004] WASCA 80. In each of those cases there were extensive interventions that were unnecessary and impacted upon the ability of the accused to present their case. In Wragg some of the interventions by the magistrate were described as 'partisan, plainly inappropriate and adversarial'. However, the fact that a magistrate may on earlier occasions have acted inappropriately does not assist in determining whether the present trial was unfair. There is no substitute for examining the transcript of the proceedings in a particular case.
15 The prosecution case was that the appellant had misappropriated property of the Pinjarra Primary School during the course of her employment as the registrar at the school. It was alleged that property had been misappropriated in a number of different ways. Firstly, that the appellant had purchased personal items and then dishonestly claimed that they were purchased for the school and obtained reimbursement for the cost. Secondly, that the appellant had purchased items with school funds on the basis that they were for school use when in fact they were for her personal use. Thirdly, that on one occasion she had made a false claim for reimbursement of travel expenses that had not been incurred.
16 The defence case was that the appellant had bought items for the school and that they were either still there, had been disposed of by the school or, in respect of some that were found at her home, she had intended to take them to the school when suitable transport could be sourced. Whilst the appellant conceded that her record and bookkeeping were lacking, she denied any intention to permanently deprive the school of any property.
17 The appellant's case was that many of the items she was alleged to have stolen were in fact still at the school. As conditions of bail had prevented her from entering the school grounds after she was charged, it was argued on her behalf that she had been effectively prevented from gathering evidence to support her version of the events. She did, however, assert that some of the items were in fact boxed up and returned to her after she had left the school on the mistaken assumption that they were her private property. It was also part of her case that some of the items alleged to have been stolen had been purchased for the school but were later disposed of by school staff in the normal course.
18 The first witness called by the prosecution was Mr Robert Davis. He was the principal of Pinjarra Primary School between 2003 and 2010. He gave evidence that in July 2010 a staff member, Ms Jennifer Brown, had approached him with concerns regarding documents indicating the purchase of a table and chairs and an outdoor bench. He was shown some documentation, including a purchase order that purported to be signed by the school gardener.
19 Mr Davis did not believe that the items had been purchased for school purposes or that the signature on the purchase order was in fact that of the gardener. He reported the matter to a District Director of the Education Department. Shortly after Mr Davis commenced an extended period of long service leave.
20 Mr Davis gave evidence that the appellant was the school registrar during the period that he was the principal. He said that in that capacity she had responsibility for managing the school's finances, nonteaching staff, and other things to do with school equipment and facilities. He said that the process for purchasing items depended on the value. In some cases it was necessary to obtain a quote. In respect of all matters a purchase order would be prepared and approved and when an item was delivered it would be checked against the order to ensure that it was correct before payment was made to the provider.
21 Mr Davis' evidenceinchief was comparatively brief and limited to the matters referred to. Crossexamination was significantly longer. The appellant relies upon a number of passages in that crossexamination. The first of those passages is as follows:
PRIOR, MR: Mr Davis, if I understand, you were principal at Pinjarra Primary School from 2003 to 2010?---Yes.
But you didn't work continuously all that time?---That's correct.
There were periods of time where you took sick leave and so on?---There was a period of extended leave, yes.
And was that in the first half of 2008?---I'll just check my record.
Yes, sure?---I believe that's correct.
HIS HONOUR: Is this important in view of the limited evidence which this witness gives?
PRIOR, MR: Yes, it is, your Honour, because there will be defence witnesses testifying.
HIS HONOUR: As to?
PRIOR, MR: Mrs Nafranec will be testifying as to these charges and what her responsibilities were in purchasing items.
HIS HONOUR: Okay.
PRIOR, MR: I'm just letting the witness check his days. I don't want to let him guess if he's got a record?---No, it was the second part of 2008 (ts 12/12/11, page 9).
22 I should note that the appellant referred only to a portion of this transcript in the schedule that was appended to the appellant's written outline of submissions. I have included more of the passage to properly reflect the context.
23 The appellant suggests that the query by the magistrate had the effect of stopping defence counsel properly exploring an issue. As is apparent from the passage, what occurred was that the magistrate queried why it was relevant that Mr Davis may have taken periods of leave between 2003 to 2010. That was an understandable question given the limited scope of the evidence given by Mr Davis. In any event, defence counsel explained the purpose of the questions and the magistrate permitted counsel to continue. The questions did continue and the evidence on that issue was provided. There is no basis for the suggestion that counsel was prevented or deflected from properly exploring this issue.
24 After Mr Davis was asked some questions regarding Ms Brown and her position at the school, counsel turned to the role of the registrar. The next passage relied upon by the appellant is as follows:
The registrar, you generally described what she did. She had responsibility for the school finances?---Correct.
Sat on a number of finance committees?---Correct.
And there was finance committees that were broken up in relation to various areas of the school such as gardening departments of the school and so on?---I don't think that's correct.
Okay. Well, there was more than one finance committee, wasn't there?---No, there was a finance committee but there was more than one committee in the school.
Okay. What were the committees for then?---Most of the committees were to do with curriculum.
Yes.
HIS HONOUR: Dealing with finance, aren't they? Yes?
PRIOR, MR: Yes, all right.
HIS HONOUR: So why do I need a broad brush approach with the schools structure?
PRIOR, MR: Yes.
All right, now, in terms of her role, you were aware that from time to time she would purchase items for the school equipment?---Yes (ts 12/12/11, pages 10 - 11).
25 Following this passage counsel turned to more detailed questions regarding purchase processes. Counsel was not prevented from pursuing questions regarding the finance committee, though he appears to have accepted the magistrate's query as to whether this very general information was particularly relevant. There was, in fact, no suggestion that the composition or proceedings of the finance committee was a relevant issue.
26 It is not possible to conclude that counsel was prevented from pursuing a relevant issue. Rather, counsel appears to have accepted the need to focus on the specific matters that were more relevant to this case.
27 Further questioning regarding specific financial procedures continued for several pages. Counsel then turned to the issue of whether in 2009 teachers had done a clean out of old equipment. The next passage relied upon by the appellant is as follows:
Wasn't there a case where large, what I might call skip bins or disposal bins arrived at the school in 2009 and a whole lot of items were dumped in there by teachers and staff? Aquariums? Furniture?---I know that we did clean-outs. I don't know whether it was 2009, but yes, we did clean out storerooms and other places.
That was a regular process?---No, I don't believe so.
But you can remember a significant clean-out occurring whilst you were principal there?---I remember we did some clean-outs, yes, yes.
Large disposal bins came to the school and people put disused equipment of the school - - -?---We always had disposal bins in the school. I don't know that we had anything special come in for it.
From time to time - - -
HIS HONOUR: Is this a broad based inquiry or is it directed towards this - - -
PRIOR, MR: No, it's directed to the other - the problem is, your Honour
HIS HONOUR: Yes. Okay. I understand.
PRIOR, MR: - - - this witness is the principal.
HIS HONOUR: Okay. Yes.
PRIOR, MR: Do you remember aquariums being thrown out?---Yes.
Can you remember when that was? If you don't - - -?---No, I don't.
So you can remember aquariums being thrown in disposal bins?---Yes, I can.
Bits of furniture? Tables and chairs and so on?
Outdoors-style furniture?---No.
Can't remember that?---No.
Not in 2009?---No.
HIS HONOUR: Do you mean no, you can't remember or no, it didn't happen?---No, I can't remember it (ts 12/12/11, pages 15 - 16).
28 There had not been a defence opening at the commencement of the trial. It is not surprising that in these circumstances the relevance of the cleanout and of items being placed into large disposal bins was not readily apparent to the magistrate. His Honour queried the relevance of the questions but allowed the questioning to continue. There was nothing inappropriate about this interruption, nor did not lead to defence counsel being deflected from pursuing a relevant issue.
29 Questioning of Mr Davis continued in regard to stocktakes and staff members purchasing items for the school and then seeking reimbursement. Counsel then returned to the issue of purchase procedures. The next passage relied upon by the appellant is as follows:
PRIOR, MR: Before when you said, depending on the values you obtained quotes, are you able to give us an indication of what sort of value would be required in a purchase for a quotation?---I don't remember the values that were set to it but it could have been items that are going to cost - for example, if it was going to be more than $1000, you'd have to obtain quotes. I don't think $1000 is a factual figure but that was the type of - - -
Roughly around that amount?---Could be something like that.
To use exhibit 2, $70 nearly of purchases wasn't a concern?---Generally not.
Wouldn't need a quotation.
HIS HONOUR: That's pretty obvious, isn't it?
PRIOR, MR: $500 wouldn't need a quotation?
HIS HONOUR: He said 1000?---I'm only estimating 1000 because I don't know the figure, sir.
PRIOR, MR: Happy if that's only an estimate,
your Honour - - -
HIS HONOUR: Right.
PRIOR, MR: - - - because there will be evidence given by witnesses - - -
HIS HONOUR: Yes. Okay.
PRIOR, MR: - - - and I'm just complying with some fairness issues.
HIS HONOUR: Yes.
So you'd accept anyway 500 even might require a quote? Do you accept that?---Again, dependent on the purchase and where it was being purchased from.
Okay.
PRIOR, MR: But at least a thousand, roughly?---I would think so, yeah (ts 12/12/11 pages 18 - 20).
30 What is clear from this passage is that Mr Davis was saying that a quotation was required for purchases over a specified limit. He referred to $1,000 but then said that he did not think that that was a 'factual figure'. That left a question as to whether $1,000 was the relevant cut off point or not. The magistrate did not appear to appreciate this at first. He questioned the need for counsel to ask whether quotations were required for purchases of $70 or $500. The point seemed to be that it necessarily followed from the witness' evidence that $1,000 was the cut off point that purchases in those amounts would not need a quotation. It then became apparent that $1,000 was only Mr Davis' estimate. Counsel was untroubled by this because it would seem that the point of the questioning was to determine that there was a process by which quotations were required in some circumstances. The interruption did not prevent counsel from asking questions that elicited that evidence.
31 The next witness called by the prosecution was Ms Brown. She commenced her evidence by stating that she had first been employed at the school in about 2007. She worked as a school officer doing general reception and assisting the registrar, the principal and deputy principals. She referred to locating the invoice that she provided to Mr Davis in early 2010. She later became aware that the police were involved. The next passage that the appellant relies upon occurs in evidenceinchief. It is as follows:
Ms Nafranec ceased to be at the school?---That's correct.
Something happened just after that. What happened then?
HIS HONOUR: What do you mean? I mean, that's such an open-ended question. Anything could have happened.
PROSECUTOR: You had a discussion with the acting principal at that time, and I believe the standards and integrity people become involved?---That's right. I originally - this was given to Rob Davis originally. When I gave it to him, he took it through to district office that afternoon when I spoke to him. He came back the next day and called me back into his office and said that he had lodged with standards and integrity a report regarding this. He then went on leave. I think it was at the beginning of term 3 in 2010. We then had a new principal come in, which was Tom Burke. I - probably a couple of weeks, two or three weeks, into him actually being there - disclosed to him the concerns that I had and then he then looked into it from there, and that's when he then liaised with standards and integrity from there.
I believe somebody came in and was reconciling cheques and invoices and everything?---That was after. After February we had Bruce Winfield, who was the senior finance consultant, because at that point we were running without a registrar, so he came down. I think it was middle of March, around there, and he was completing the end of year financial things that had to be done, so he was completing the December, January and February rollovers for the finance component of the school because there was noone actually able to do that at that point.
He asked you to assist him?---Yes, he asked me to assist him with some reconciliations of some cheques and things. That's when we then came across a travel claim that was my travel claim initially and then underneath there was another one where my travel claim had actually been - name had been white-inked out and then was given - was used for the defendant, and it wasn't till it was actually pointed out to me by - I think it was Ian Francis.
HIS HONOUR: It depends what it means to point it out. Okay. It's not a jury. I can ignore it if it's something that's - - -
PRIOR, MR: I think you're about to hear evidence about what detectives or police officers told the witness, your Honour.
HIS HONOUR: Okay. Maybe. I don't know.
PROSECUTOR: So as a result of something being pointed out to you, did you do anything then?---No. He handled it and gave it to standards and integrity (ts 12/12/11, pages 24 - 25).
32 The appellant submits that the first interruption by the magistrate was inappropriate as it unfairly encouraged the prosecutor to ask a leading question. I do not accept that characterisation. It is apparent that what the magistrate was doing was questioning the vague generality of the question. The magistrate's criticism was not inappropriate.
33 The second interruption appears, if anything, to have favoured the appellant. The magistrate was questioning what the witness meant when she referred to someone pointing something out to her. Clearly, the concern was that the witness might be relying upon hearsay. This elicited an objection from defence counsel. It was not necessary to rule on that objection because the following question by the prosecutor avoided the content of what Ms Brown may have been told by another person and simply asked what she did as a consequence.
34 Ms Brown gave extensive further evidence in regards to cheques and other financial documents. It is unnecessary to detail that evidence for present purposes.
35 The next passage that the appellant relies upon occurs at the start of crossexamination:
PRIOR, MR: Mrs Brown, when did you start in 2008 at the Pinjarra Primary School?---I started in 2007 as a - - -
HIS HONOUR: 2007, wasn't it?--- - - - level school 1 officer. I then, in 2008, about November, was a level 2 school officer.
PRIOR, MR: So from 2007 to today's date you've worked continuously at the school?---Yes, that's correct.
On a full-time basis?---That's correct.
Back in February 2010, what was your role then?---Sorry, can you repeat that?
Back in February 2010, what was your role at the school then?---I was a school officer.
A school officer. Just confirm again what that role is?---My role is to - - -
HIS HONOUR: I don't need to be told again.
PRIOR, MR: Well, why were you reconciling accounts in February 2010?---The registrar would often ask for me to put purchase orders to invoices for her, to assist her (ts 12/12/11, pages 38 - 39).
36 The appellant submits that the interruption by the magistrate was unfair as it assisted the witness in providing the year when she commenced her employment. That submission is not borne out by the transcript. Ms Brown had already referred to the year 2007 when the magistrate asked whether that was the correct year. It does not appear that the magistrate was seeking to answer the question for the witness. Rather he was confirming the answer she had already started to give. In any event, she had given the same evidence at the commencement of her evidenceinchief.
37 As regards the second interruption, the fact is that Ms Brown had already given evidence as to what her role was. That the magistrate said he did not need to be told that again did not prevent defence counsel from pursuing any relevant line of crossexamination. If it was important that the witness repeated her evidence in that regard it would be expected that counsel would have pressed the issue. However, he moved on and this must be taken as an implicit acceptance that it was not necessary to do so.
38 After questions regarding a reconciliation that Ms Brown undertook in 2010 and whether she had taken time off for medical reasons, she was questioned about taking over the role of registrar. The next passage relied upon by the appellant is as follows:
And you got a pay rise, I take it, doing the new job?
HIS HONOUR: Well, does it matter?
PRIOR, MR: Did you?---Absolutely. It comes with the role (ts 12/12/11, page 41).
39 The appellant suggests that the interruption by the magistrate was an attempt to deflect counsel from pursuing a relevant matter. In fact, what the magistrate did was to question the relevance of any pay rise that Ms Brown may have received on taking on the registrar's job. Counsel ignored the interruption and pressed the question and it was answered. Presumably the relevance of it was to suggest that the witness may have had a motive to make false allegations against the appellant - though this was not put in clear terms.
40 The next passage relied upon by the appellant follows soon after and relates to the same issue. That passage is as follows:
Did you or anyone take any items out of the registrar's office after Alison Nafranec left her employment in February 2011?---The office was tidied up and everything was boxed up and placed in our back storeroom.
Okay. So items were removed from Alison Nafranec's office, the registrar's office?---They weren't removed from the school but they were taken out of the office and boxed up, yes.
Yes?---But they were her personal items.
HIS HONOUR: So is there anything that flows from that?
PRIOR, MR: Yes, because there will be evidence - - -
HIS HONOUR: Any questions you want to ask this witness?
PRIOR, MR: Not now that I've heard that answer, your Honour, but further questions, yes. Can I have a look at exhibit B, please?
Perhaps you can give exhibit A back to the bench clerk.
HIS HONOUR: Is the question about the pay rise of concern for Ms Brown's welfare or what - - -
PRIOR, MR: Credibility.
HIS HONOUR: Credibility?
PRIOR, MR: Yes.
HIS HONOUR: Sorry, I don't understand that proposition.
PRIOR, MR: I haven't finished what I - - -
HIS HONOUR: Okay. You'll come back to it, will you?
PRIOR, MR: Yes.
HIS HONOUR: Right (ts 12/12/11, pages 42 - 43).
41 The appellant submits that the magistrate's interruption deflected counsel from a relevant issue. There are two issues covered in this passage. The first is whether items from the appellant's office were boxed up and placed in a storeroom. The initial question asked by the magistrate appears to have been a query as to the relevance of this evidence. As noted earlier, given that there was no defence opening it may not have been apparent to the magistrate that the defence case was that items alleged to have been stolen by the appellant were in fact wrongly assumed to be personal items and boxed up and sent to her after she left the school. Counsel's response appears to be an attempt to explain the relevance by referring to other evidence that will be given. The magistrate interrupts by asking if counsel wishes to ask any further questions. There is an obvious explanation for this; the magistrate may have considered it inappropriate or at least unnecessary to be told what other witnesses may or may not say. In any event, the magistrate did not prevent this issue from being pursued and counsel clearly made a decision to turn to another topic.
42 Before further questions were asked the magistrate asked about the relevance of the earlier questions regarding the pay rise. When told that it relates to credibility the magistrate said that he did not understand that. Nothing turns on this because counsel says he will return to the issue later. There is no basis for suggesting that counsel has been deflected from pursuing an issue - to the contrary, it is counsel who decides the course to be pursued.
43 The next passage relied upon by the appellant is as follows:
- - - but it's a set rate. Would you have a look at this document. If you go to the last page of the document they relate to travel claims around the same period, don't they?---Yes.
On the very last page do you recognise that handwriting?---Yes, that's Alison's.
Okay. Just hold it up so his Honour and the prosecuting sergeant can see. So there are two names there, Alison and Jennifer?---Mm'hm.
And around that time both you and Alison were doing travelling for the school. Is that correct? Yes or no?---I assume so, yes.
Okay. You certainly remember back in 2010 Alison doing travelling from time to time, don't you? Yes or no?---Well, I do but I haven't been keeping track of when she did or didn't go, so - - -
Just a general - - -?---Just as a general, yes.
I tender that document, your Honour.
HIS HONOUR: What is it?
PRIOR, MR: It's the copies of the documents which are exhibit 4B but the final page is a calculation sheet.
HIS HONOUR: And what's the purpose of tendering it?
PRIOR, MR: Because I've just shown the witness and she's identified it and Mrs Nafranec is going to testify to it.
PROSECUTOR: With respect, sir, I believe that's a 2009 document whereas the two documents tendered by the prosecution are 2010.
HIS HONOUR: That's right.
PROSECUTOR: So they're not the same document.
HIS HONOUR: Yes.
PROSECUTOR: My friend is putting to you that the claim document is the same as the exhibit, and the only difference between the exhibit from the prosecution and the defence exhibit is the calculation at the back. My recollection is the documents handed up - - -
HIS HONOUR: I accept that. We've been through it.
PROSECUTOR: - - - by the prosecution for term 1 and 2, 2010, that document I believe is - - -
HIS HONOUR: It does say 2009.
PROSECUTOR: - - - 2009.
HIS HONOUR: I can see that.
PROSECUTOR: So it's not the same, sir.
HIS HONOUR: Okay. What is the purpose of tendering this document?
PRIOR, MR: Mrs Nafranec will testify that quite often she did calculations on travelling for both herself and Mrs Brown and paid both of them.
HIS HONOUR: Do you accept that?---Absolutely.
PRIOR, MR: We can mark it for identification. I've shown it to her.
HIS HONOUR: Yes.
PRIOR, MR: She's testified - - -
HIS HONOUR: But the point that's being made is this addition is for 2009.
PRIOR, MR: Yes.
HIS HONOUR: The witness accepts without any reservation that your client does do calculations related to travelling claims for each of them.
PRIOR, MR: Yes. All right, we won't tender it if we've got that evidence.
HIS HONOUR: I don't see the point in cluttering up my desk.
PRIOR, MR: Sure. The factual finding has been made.
HIS HONOUR: Yes. The witness accepts it. And the witness accepts that she didn't check on the particular claim because she had trusted the other party to be accurate in the calculations.
PRIOR, MR: And made no complaint at the time (ts 12/12/11, pages 45 47).
44 The appellant submits that defence counsel was prevented from tendering a relevant document. That is clearly incorrect. All Ms Brown was able to do was identify the handwriting of the appellant on a calculation sheet. It was not a calculation sheet that related to the travel claim that was the subject of the prosecution case. In those circumstances its relevance was open to question. There was an objection from the prosecution directed to this issue. It seems that the relevance was confined to establishing that, as a general proposition, the appellant had done calculations for travel allowance on other occasions when both she and Ms Brown had claimed for travel allowance. That was a general proposition that Ms Brown accepted. In these circumstances there was no point in tendering the document, as defence counsel appeared to accept.
45 In any event, the relevance and accuracy of the handwritten calculations depended upon any evidence that the appellant may give. Those calculations could not properly be tendered through Ms Brown and counsel appears to have accepted that by asking initially for the document to be marked for identification. There is no basis for suggesting that this document, had it been tendered, would have added anything to the evidence.
46 The next passage relied upon by the appellant appears in the crossexamination of the witness Christie Turner. Ms Turner was a senior investigator for the Department of Education who had conducted investigations regarding an allegation of misconduct on the part of the appellant. She obtained a number of documents during the course of her investigation that were tendered by the prosecution. One of the other investigators who had been assisting Ms Turner was Debbie Pelman. Ms Pelman had received information from another witness in the form of a document. Defence counsel put the document to Ms Turner:
Witness be show - you've seen that document before as part of the investigation?---No.
But it's a document that's addressed to Mrs Pelman from Mr Whiteley. Is that correct?---Yes.
It's got a date on it at the footer?---Yes.
What's the date?---8/4/2009.
My learned friend hasn't got any problem for this being tendered. I'll tell you why, your Honour. Mrs Pelman has got some illness or something at the moment, hasn't she?---That's correct.
She's not available to attend court today?---Yes.
I'll tender that document. The witness hasn't seen it before. Perhaps could we mark it for identification. I'm going to put it in through the accused but I'll just say this for the record so it's crystal clear. The witness Pelman is not available, nor is the witness Whiteley. They're listed prosecution witnesses and if there is any objection to this document going in, I'd seek that one of them be called.
HIS HONOUR: What's the purpose of tendering the document? I don't even know what's in it.
PRIOR, MR: It relates to the aquariums allegation, your Honour, which is one of the counts.
HIS HONOUR: Yes, but basically you're asking me to accept this as proof of its truth, are you?
PRIOR, MR: Yes.
HIS HONOUR: Then isn't that - - -
PRIOR, MR: All right. Well, for the record - - -
HIS HONOUR: - - - a classic breach of the hearsay rule?
PRIOR, MR: Yes. For the record, we seek that Mrs Pelman be present so we can call her as a defence witness if the prosecution don't wish to call her.
HIS HONOUR: You can't insist upon that. You can't impose any obligation on the prosecution as to who they call and who they don't.
PRIOR, MR: Your Honour, go back to what I said. I'm happy to call her as a defence witness.
HIS HONOUR: Yes.
PRIOR, MR: But I was advised on Friday that she's not available today for illness.
HIS HONOUR: Okay.
PRIOR, MR: We probably won't be finished today, so if necessary, we can call her on Thursday.
HIS HONOUR: Yes. Okay.
PRIOR, MR: Okay.
HIS HONOUR: All right.
PRIOR, MR: So we don't need to mark it for identification.
HIS HONOUR: No, it should just be returned.
PRIOR, MR: I just want to make it crystal clear what's going on for the record.
HIS HONOUR: If she's not available for the prosecution and she's ill by Thursday, she won't be available for the defence either.
PRIOR, MR: We'd seek an adjournment. We'll wait till Thursday (indistinct) (ts 12/12/11, pages 61 - 62).
47 The appellant submits that the magistrate prevented defence counsel from tendering a relevant and admissible document. What is clear from the transcript is that the witness to whom the document was shown was neither the author nor addressee of it, nor had she seen it before. In these circumstances there was no proper basis for it to be tendered through that witness. There was also, as the magistrate noted, a problem with hearsay. Defence counsel confirmed that the document was being tendered to establish the truth of its contents. However, this was occurring in circumstances where neither the author nor the recipient were to be called as a witness. The concerns expressed by the magistrate were wellfounded and did not represent any improper interference in the presentation of the defence case.
48 There was a reference by defence counsel to the prosecution having no difficulty with the document being tendered. This was not confirmed by the prosecutor. In any event, the magistrate was not bound by an agreement between the parties to admit what would otherwise be inadmissible evidence. If, as defence counsel suggested, the witnesses through whom this document could be tendered were unavailable due to illness it may have been possible to seek the admission of the document pursuant to s 79(c) of the Evidence Act 1906 (WA). But no submission in that regard was advanced. Rather, counsel said that if it was necessary to call Ms Pelman he would do so on a later date when the trial was due to continue. None of this leads to a conclusion that the defence was improperly prevented from adducing evidence in its defence.
49 Ms Eleanor Hawke was an Education Officer employed at the Pinjarra Primary School at the relevant time. Early in her evidence she was shown a payment voucher that related to one of the charges. The next passage relied upon by the appellant is in examinationinchief:
All right. What can you tell us about the payment voucher? If you take it out of the - take the documentation - - -
HIS HONOUR: Well, it's handwritten. It could be all sorts of things. At least give her a hint.
PROSECUTOR: First of all, did you fill that payment voucher out?---No, because in my area with the Aboriginal education, my budget doesn't - wouldn't cover that amount (ts 12/12/11, page 67).
50 The appellant submits that the magistrate provided material assistance to the prosecution by suggesting that the prosecutor give the witness 'a hint'. When seen in context it is apparent that the magistrate was not encouraging the prosecutor to suggest to the witness what evidence she could give, rather it was an encouragement to the prosecutor to ask a question that was less vague and general in its terms. The criticism was well made and the prosecutor acted upon it by asking more focused and relevant questions. There was no objection to this from defence counsel.
51 The next passage relied upon by the appellant appears in the crossexamination of Mr Troy Dubberlin. Mr Dubberlin was the gardener at the Pinjarra Primary School. His evidence related to the documents which purported to bear his signature and related to the purchase of an outdoor bench and garden setting. In crossexamination he was asked whether he remembered placing some aquariums into a bulk disposal bin in 2009. He said that he did not place any aquariums in the bins himself, but recalled seeing some in a bin. This was relevant as one of the charges that related to the theft of some aquariums. The relevant passage is then as follows:
- - - to the Pinjarra Primary School. Have you received any old aquariums from the school, when they've been thrown out?---Only what was in the bin.
So you've taken old aquariums out of the bin?---Not all of them, no.
Sorry?---Not all of them, no.
One?---Probably one, yeah.
Okay?---One or two, and I asked for them.
Yes, items being thrown out by the school.
HIS HONOUR: Is this going anywhere?
PRIOR, MR: Yes. There's a suggestion that aquariums were never purchased by the school, in the prosecution case, in around 2009.
HIS HONOUR: Mr Davis referred to the aquariums. Anyway, I'll go back over that.
PRIOR, MR: In the rubbish that was being thrown out, seeing mats and carpets?---Yes.
And that was around 2009?---I couldn't say specific dates, but I would say so. I know that there was - - - (ts 12/12/11, page 115).
52 The appellant submits that the magistrate improperly prevented a relevant issue from being pursued. That is not borne out by the transcript. The magistrate simply queried the relevance of the questions. The relevance was explained to him by defence counsel. The magistrate made a comment regarding the evidence of Mr Davis and the questioning then continued. Defence counsel was neither prevented from pursuing, nor deflected from his course.
53 The next passage relied upon occurred in the evidence of Senior Constable Duncan Nicol. In crossexamination Senior Constable Nicol was asked about some photographs that he had taken at the appellant's home. One of those photographs showed an outdoor setting. This furniture was not seized by the police until later. In crossexamination Senior Constable Nicol was asked when the photograph had been taken. The following is the passage relied upon by the appellant:
HIS HONOUR: This is all very interesting but is it going anywhere?
PRIOR, MR: Yes, it is, your Honour.
HIS HONOUR: Right.
PRIOR, MR: I need to put what the accused will be saying. So, what was your answer, constable?---It says 1.22 pm, the date stamp.
1.22 pm?---1.22.
So that would have been when you first went there because you didn't contact Mrs Nafranec until the afternoon?---That's correct.
Okay. She attended Pinjarra police station voluntarily?---Yes. (ts 15/12/11, pages 6 - 7).
54 The appellant submits that the magistrate improperly interrupted the crossexamination. That is clearly not so. The magistrate merely queried the relevance of the questioning as to when the photograph had been taken. That was understandable as the relevance was not readily apparent. It seems that the point that defence counsel was seeking to make was that the appellant had made no attempts to conceal the furniture. In any event, when defence counsel assured the magistrate that the line of questioning was relevant he was permitted to, and did, continue with it.
55 The next passage relied upon by the appellant occurs a short time later. Senior Constable Nicol had conducted an interview with the appellant that had not been recorded. He had been asked why and said that the appellant was offered a video recorded interview but said that she did not want to do that. He was asked a second time why he did not see fit to record the interview and responded by saying:
As I already explained, your client wasn't very happy about the process, and in fairness to her it was just a matter of dealing with it as expediently as possible (ts 15/12/11, page 8).
56 He was asked whether he took notes and said that he did not. He was then asked:
No notes of the interview at all - - -?---None at all.
- - - and didn't see fit to turn on the camera?---Correct.
HIS HONOUR: You've said that a number of times (ts 15/12/11, page 9).
57 The appellant submits that this was improper interference in crossexamination. That cannot be accepted. The magistrate's comment that the question had been asked a number of times already was correct. In fact this was the third time in a short space that the same question had been pressed. The same answer had been given on each occasion. There was nothing improper about the magistrate making a comment to that effect.
58 In any event defence counsel was not deterred and pressed the issue again a short time later, in the next passage relied upon by the appellant. That passage is as follows:
There were no notes taken and no video-recording or DVD-recording of the interview?---Correct.
Yet she was sitting in the interview room - - -?---That's right.
- - - at the Pinjarra police station.
HIS HONOUR: Lead it in front of the jury, Mr Prior.
PRIOR, MR: Yes. No.
HIS HONOUR: Okay?
PRIOR, MR: I just need to make sure that I've put it. I understand that, your Honour.
HIS HONOUR: Okay. You've put it three times or more.
PRIOR, MR: Well - - -
HIS HONOUR: Okay. Thanks.
PRIOR, MR: Okay.
HIS HONOUR: You understand the point I'm making.
PRIOR, MR: I understand completely, your Honour.
HIS HONOUR: Thank you (ts 15/12/11, page 10).
59 The magistrate, perhaps sarcastically, was making the point that as the finder of fact he did not need, as a jury might, to have the same point repeatedly made. Sometimes repeated questions are a necessary component of crossexamination, particularly if the witness is being evasive or providing inconsistent answers. But that was not the position here. The magistrate's view that repetition was unnecessary was a fair one. The way he expressed that view was, perhaps, unfortunate; sarcasm is rarely an appropriate mode of expression for a judicial officer. However, there is nothing to suggest that defence counsel was intimidated or deflected from his duty to his client.
60 The next passage relied upon by the appellant appears in the evidence of Travis Jenkinson. Mr Jenkinson was a police officer at the relevant time. He had also been present when police had attended at the home of the appellant. In crossexamination he was asked about wither the outdoor setting was visible from the road when the police attended at the appellant's home:
HIS HONOUR: You've raised this issue twice. Is it important?
PRIOR, MR: Not that, but I need to show the witness exhibit R.
HIS HONOUR: They've both clearly said you can see it from the road.
PRIOR, MR: Yes, that's disputed but it's not important.
HIS HONOUR: If it's in dispute, then it's in dispute, and presumably - - -
PRIOR, MR: It's not important to the defence but Mrs Nafranec will be testifying that you can't see it from the road, can't see it from the driveway.
You heard what I just said. Do you agree with that proposition? You can only see it when you drive into the property?---No, I'm pretty sure you can see it from the road as you're sitting at that - call it the crossover. So if you parked on the road near the gate, you can see the table and chairs.
HIS HONOUR: Right. Move on (ts 15/12/11, page 19).
61 The appellant submits that this was improper interference with crossexamination. There is nothing improper about the magistrate's query as to whether this issue was important. If it was important to the defence case it was clearly in the appellant's interest that its significance be explained to the magistrate. Judging by defence counsel's response it was not a matter of significance and only related to a possible issue of credibility in the event that there was conflict between the police witnesses and the appellant. In any event, defence counsel was permitted to complete his line of questioning.
62 The next passage relied upon by the appellant appears in the evidence of Sergeant Ian Francis. Sergeant Francis had been present for part of the interview with the appellant that was conducted by Senior Constable Nicol and Constable Jenkinson. At the commencement of crossexamination defence counsel asked:
Sergeant rank?---Yep.
You'd agree with me that, generally speaking, when you do an interview with a suspect or an accused person, standard police procedure is - make a record of the interview?---It wasn't an interview.
HIS HONOUR: What are you speaking of? Are you speaking of the incident involving this witness or are you speaking generally?
PRIOR, MR: I'll get to that, your Honour, but I need to first see - so you say if there wasn't an interview - let's go to what you were involved in?---Yep (ts 15/12/11, pages 28 29).
63 The appellant submits that this was an improper interference with crossexamination. The question asked was a general one but the answer of Sergeant Francis related specifically to the appellant's interview. The implication of the answer was that the general principle did not apply because this was not a formal interview. The disconnect between the question and answer amply justified the intervention by the magistrate. Defence counsel was not prevented from pursuing the issue and then proceeded to ask questions relating to the interview with the appellant.
64 There follows three pages of uninterrupted questions regarding the interviews and answers given by the appellant. Sergeant Francis was then asked:
She did say things, notwithstanding what her lawyer said she was going to do?---Yep.
HIS HONOUR: Are you challenging the accuracy of what he's just said?
PRIOR, MR: No.
HIS HONOUR: Right.
PRIOR, MR: But I'm just about to put something.
Consistently throughout that, she was telling you, 'I didn't steal anything, and the paperwork might be wrong'?---No, she just said we didn't know what we were talking about.
Certainly you were aware, as one of the principal - I appreciate it's Nicol or you, or both?---Yep. Yeah. Okay.
Officers in charge of the investigation?---Yep.
You were aware at 14 March that she couldn't go back to the Pinjarra Primary School - - -?---Yep.
- - - because there were bail conditions?---Yeah. Correct.
Subsequent to that, there were items taken from Pinjarra Primary School from her office and delivered to her or her family members. Is that correct?---No.
You didn't arrange for five boxes of items to be delivered?---Yeah, but we didn't take them.
I wasn't suggesting the police took them?---No. Okay. I'll make it clearer. They were dropped off by the principal who has said these were her personal effects. They were nothing to do with the inquiry. He was - he understood that she couldn't go back to the school. On a number of occasions we tried to get Alison to come in and collect them.
HIS HONOUR: Okay. So is this an issue or isn't it?
PRIOR, MR: It is.
HIS HONOUR: Right. Okay.
PRIOR, MR: I'll just get to the point then?---And, and the items were actually dropped off at her son's [sic].
Yes, so there were about five boxes of miscellaneous items - - -?---Correct.
- - - dropped by the principal at the Pinjarra police station - - -?---Yep.
- - - I assume - - -?---Yep.
- - - and police - it might not have been you, but police arranged for that to be sent to her son's? [sic] ---Eventually, yes.
Okay?---Yep.
Did you go through the items in the boxes?---No, I didn't. I had no interest in them. They weren't my property.
It was about five boxes?---Five. I did say to the blokes, 'Let's get rid of these because they're cluttering up my property room.' (ts 15/12/11, pages 32 33).
65 The appellant submits that the interruptions by the magistrate represent improper interference with crossexamination. There are two issues raised by the magistrate in this passage. The first is to clarify whether things alleged to have been said by the appellant to the police in the informal interview were disputed. Given that defence counsel was contending that the police had not followed normal procedure this was a reasonable point of clarification.
66 The second issue was whether boxes of items from the Pinjarra Primary School had been delivered to the appellant. It would seem that the issue being raised here was whether items might have come into the possession of the appellant by reason of being mistakenly delivered to her in the boxes rather than being taken by her from the school. In any event, it was reasonable for the magistrate to query the relevance of this topic. When he was assured that this was a matter in issue he permitted the questions to continue.
67 The remaining passages relied upon by the appellant appear in her own evidence. In referring to these passages it is important to bear in mind that the appellant's evidence was lengthy. It extended over some 160 pages of transcript. Very many pages of that evidence involved no interruption or comment from the magistrate whatsoever. The first passage referred to by the appellant is as follows:
Focusing once again on cash cheques for purchases for items for school - - -?---Yes.
- - - were people given cash cheques for items they had purchased - staff I'm talking about - for the school from retailers on occasions?---Yes, I'm occasions [sic].
HIS HONOUR: Yes, I'd rather hear it from the witness, please.
PRIOR, MR: Okay. All right?---Yes, they, they have been (ts 15/12/11, page 40).
68 The question asked by defence counsel was clearly leading. Whilst no objection from the prosecutor was taken to the form of the question it did relate to an issue of significance at the trial. In these circumstances it is understandable that the magistrate would wish the evidence to come from the appellant. His comment to that effect was not inappropriate.
Were any records kept of school property kept at Pinjarra Primary School?---Yes.
How was that done?---Assets - if the value of resources and assets in the school - a resource is any item between $1000 and $4999. An asset is any individual item, per line item, $5000 and up. Any item that was purchased that was an asset I would record on the asset - SIS Asset on mine - on a program on my computer. Resources that came in the invoices generally had to go to the library first so that the library would put them onto our - excuse me - our Alice recording system. Prior to that we were on Maze, where I used to - - -
HIS HONOUR: I don't need that detail, please.
PRIOR, MR: (indistinct) programs I assume?---Yes. Sorry. Yes.
HIS HONOUR: You had a record of your assets presumably?---Yes.
Presumably you did a stocktake?---Yes, then we did stocktakes, yes.
Can you just go direct to the issues, please (ts 15/12/11, pages 42 43).
70 The magistrate's comment that he did not require the detail clearly referred to the names of the various computer data systems that were used at various times. Nobody suggested that those data systems were at all relevant to the issues at the trial. The relevant issue that was being addressed at this point was whether a proper record had been kept of the school's assets. The magistrate appreciated this and asked that the questions be focused on that issue. The questioning that followed was responsive to that suggestion. There was no submission either at the trial or on appeal that the appellant was prevented from giving relevant evidence.
71 There then followed questioning regarding the regularity of stocktakes and a print out of a stocktake was shown to the appellant. The next passage is as follows:
PRIOR, MR: So that's just an example of what you've been talking about?---Yes.
So that would have been, as his Honour said, created by - - -
HIS HONOUR: Hang on. Why repeat it? I've just gone through it.
PRIOR, MR: I just want to check that what she said is correct.
HIS HONOUR: Yes?---Yes.
Who created the - - -
HIS HONOUR: But if I have to listen to everything twice, it takes twice as long.
PRIOR, MR: Okay. All right. We'll proceed that way?---It was created by the library officer from - they print out the stocktakes sheets. We give them to all the cost centre managers and staff. They do a physical check - what is there or isn't there.
HIS HONOUR: We've already been told this.
PRIOR, MR: Okay. All right. Okay (ts 15/12/11, page 44).
72 It appears from this passage that the magistrate was not attempting to prevent evidence from being given but to query the necessity for it being repeated. It is possible that the magistrate was short tempered in expressing his views. But there is nothing to suggest that defence counsel was deterred; indeed the witness provided the confirmation he was seeking.
73 The next passage relates to questions put to the appellant by defence counsel regarding purchase documents:
Can I just have that and I'll take you quickly to the relevant documents. If I understand correctly, the two documents under the Fuller Furniture documents are school documents - the yellow document and the white document, so the second and third documents?---Yes.
HIS HONOUR: Again, I would rather the witness tell me what they are, please?---This is a copy of the actual school order (ts 15/12/11, page 50).
74 The magistrate's interruption was merely a reminder to counsel not to ask a leading question. The question was leading and the reminder was appropriate.
75 The next passage is of a similar type; that is, it contains a reminder to counsel not to lead the witness:
Okay. Who is Leanne Turner?---She was the CIC - sorry, the cleaner in charge.
Did she request the mats?---Yes, she requested mats.
HIS HONOUR: Mr Prior, I don't want to have to constantly interrupt you, but you are constantly putting propositions to the witness and simply having her respond 'Yes' or 'No'.
PRIOR, MR: Okay.
HIS HONOUR: I understand that you need to ask questions that introduce an issue, but I want to hear the evidence from the witness stand.
PRIOR, MR: (indistinct) no problem, your Honour (ts 15/12/11, page 52).
76 The next passage relates to the purchase of aquariums:
We were also running a book fair in the library and it was an ocean marine theme, and we - well, I - ordered items and resources that related to ocean and sea with the intention that they were used in the library book fair and to go in the science room.
And when did you - - -
HIS HONOUR: Explain then how you did it - - -
PRIOR, MR: Yes.
HIS HONOUR: - - - because that's how I'd rather hear it, Mr Prior?---Yes, okay.
PRIOR, MR: How did you purchase the items?---The staff and myself, we got quotes from different suppliers (ts 15/12/11, page 55)
77 The issue being referred to here was whether the aquariums had been purchased for the school. The appellant said in her evidence that that was the case. Clearly in these circumstances the manner by which she had purchased the aquariums was significant. The magistrate sought to focus the questioning on that issue. Counsel adopted the magistrate's suggested question. There was no suggestion that this deflected attention away from the real issues and clearly it did not.
What was the MOASH building used for principally in 2008?---The MOASH building was an on-site building that was placed there through liaison with Barry Cable. It was placed on the school site and - - -
HIS HONOUR: What was its purpose, please?---For best start for families and community groups to encourage them to bring their children from nought to four years into a school environment (ts 15/12/11, page 62).
79 The magistrate's interruption was justified because the answer had not been responsive to the question. In any event, there was no suggestion that the purpose of the building was at all critical to the matters at issue at the trial.
The cot had receipts?---There's no receipt here for the cot.
HIS HONOUR: I've said before, Mr Prior - - -?---The cot - - -
- - - I want to hear from the witness - - -
PRIOR, MR: Okay.
HIS HONOUR: - - - about documents.
PRIOR, MR: Fine.
Could you please - - -
HIS HONOUR: I don't want them described and put to her as a proposition which she then adopts.
PRIOR, MR: Okay (ts 15/12/11, page 66).
81 Again, this is a reminder not to ask leading questions. Counsel did not dispute that the question was leading. Nor can it be disputed that the magistrate had raised concerns regarding leading questions on earlier occasions.
82 The appellant was later shown a photograph taken by the police on 7 February 2009 and asked about a table and chairs that could be seen in it. This was the issue that had earlier been raised with the police witnesses. The appellant was asked whether the photograph showed the general location of the table and chairs. The magistrate then asked:
HIS HONOUR: Does it matter?
PRIOR, MR: Well, it probably doesn't - - -
HIS HONOUR: Then let's not cover it.
PRIOR, MR: Yes, well - - -?---It's on the outside of - - -
HIS HONOUR: No, just a moment please?---Sorry.
Those are the chairs - - -?---Yes.
- - - and the table that was at your premises when the police visited?---Yes.
Yes, thanks.
PRIOR, MR: And that was the way they were located? I'm talking about the property. Whereabouts - - -?---Yes, that is in - beside the house, and it is - - -
HIS HONOUR: Does the photograph show where they were when the police photographed them?---Yes.
PRIOR, MR: How long had they been there, approximately?---Approximately 18 months.
In that location?---No, they were not always there (ts 15/12/11, pages 71 72).
83 There was nothing untoward about the magistrate asking whether the general location of the table and chairs was significant. In any event, defence counsel confirmed that it was not. The real issue appeared to be how long those items had been in that location. Those questions were asked and answered.
84 The appellant was asked why she had had the table and chairs delivered to her home rather than taking them home in her own car. The following passage is relied on:
And this is 2008 we're talking about?---2008. At the same time - because I organised for my equipment to be delivered, because I couldn't take equipment home in my car, I only had a small car - they - - -
What sort of car do you have, just generally?
HIS HONOUR: It doesn't matter?---I had a Hyundai then.
PRIOR, MR: A sedan?---A little Hyundai.
HIS HONOUR: Yes, just continue, please? (ts 15/12/11, page 74).
85 The magistrate queries whether the type of car that the appellant had is significant. It does appear to be a question that follows on from the answer that the appellant has just given. In any event, notwithstanding the magistrate's question, the appellant states, twice, what type of car she owned.
86 The next passage relied upon by the appellant is:
HIS HONOUR: In whose writing is that, please?---That's mine, your Honour.
PRIOR, MR: And what about the payment voucher?---The payment voucher has, 'Susan Briesley, care of Pinjarra Primary School.'
And who wrote that?---I did (ts 15/12/11, page 79).
87 The appellant is at this point being shown documents including payment vouchers and cheque butts. There is no doubt that it was relevant to know that the appellant had written on the cheque butt in question. There is nothing objectionable about the magistrate asking this question and no objection was taken at the time.
88 The next passage relied upon by the appellant is:
It just sold flowers and floral arrangements, plants and so on?---Sorry?
What did it sell?
HIS HONOUR: Let the witness tell me what it sells.
PRIOR, MR: What did it sell?---The shop sells floral arrangements, flowers, living plants, small gifts, yes -pots (ts 15/12/11, page 86).
89 This is again a reminder not to ask a leading question. The initial question was leading. The reminder was not inappropriate.
90 The next passage relied upon by the appellant is:
And at any stage in 2007 or later did she come to you, complaining about being underpaid, overpaid?---No.
HIS HONOUR: That's a blatantly leading proposition, but I heard what Brown said. She never questioned it because she trusted the accused.
PRIOR, MR: Yes, that's right.
HIS HONOUR: Right. You just put a proposition to her, okay. I have mentioned it before?---No. Jenny never came and spoke to me with any concern and these forms had been audited by a school auditor (ts 15/12/11, pages 94 - 95).
91 Again, the magistrate reminds counsel not to ask leading questions. He then reminds counsel of evidence that another witness has recently given. Whilst I do not necessarily accept that, on this occasion, the magistrate's criticism as to leading was justified, the real issue was not whether Ms Brown had ever complained but why she did not. In any event, the appellant answered the question. There is nothing to suggest that the interruption resulted in the appellant being prevented from providing relevant evidence.
HIS HONOUR: So who was paid, please, and what amount?---The school payment voucher to Alison Nafranec and - - -
PRIOR, MR: How much?---449.76, and a school payment voucher to Jenny Brown for 254.80, and they are both signed by David Whiteley. The cash payment voucher - - -
HIS HONOUR: Yes. Right. Thanks. That's all I need?---Sorry.
PRIOR, MR: Focus on you?---Yes (ts 15/12/11, page 97).
93 In this passage the magistrate asks the appellant to identify the relevant details that can be extracted from a cash payment voucher and allowance claim. That was clearly relevant information and there was nothing improper about the magistrate's questions. The comment 'That's all I need' appears to be an indication that that is all he wished to ask in respect of that document. The fact that he was not seeking to curtail defence counsel asking further questions is evidenced by the fact that further questions were in fact asked.
PRIOR, MR: Let's do it then. Yes, can we have all the boxes?
HIS HONOUR: No. Look, where is this going, please?
PRIOR, MR: Yes.
Can you tell me what's in those five boxes?---Later on - - -
HIS HONOUR: Just answer the question, please, so we can work out where it's going?---Well, they are school items that belong to the school, and some of them are items that I have purchased for the school.
PRIOR, MR: Where did they come from before they got to the courthouse today?---The police had them down at the police station and then they - - -
Where were they before the police got them?---Well, they told me that they - the school had given them to the police. I thought the police must have gone to the school and got them - - -
Don't worry about what you thought?---- - - and - - -
HIS HONOUR: Are these the boxes that are said to have been - - -?---Personal items.
- - - packed by other staff when your client didn't go back to the school?
PRIOR, MR: Correct.
HIS HONOUR: Right.
PRIOR, MR: I don't want to clutter the court up with a whole lot of boxes but I had some legal professional obligations for this client to make sure she - - -
HIS HONOUR: Yes.
PRIOR, MR: So?---So - because I said in the beginning, 'Well, how would the school know what were my personal items?'
No. Sorry.
HIS HONOUR: Yes, please.
PRIOR, MR: I just want to know what's in the boxes. I think you've told us, generally speaking?---There's, there's some pots that I'd purchased from Pinjarra Floral Designs. There's artificial flowers that I'd purchased from DD's. There's stencils that I'd purchased from the newsagent and they were in my office and in the school.
So around February-March 2011, when you were charged, where were these items situated, which are now in the boxes sitting in the back of the court?---In my office.
Where?---On some of the - - -
Whereabouts - in your office at home, school? We need to be clear?---No, sorry. In my work office at Pinjarra Primary School.
Just hold on one minute. Thank you. That's the evidenceinchief, that you, your Honour (ts 15/12/11, pages 110 - 112).
95 The two interruptions by the magistrate in this passage were both directing the appellant to answer the questions asked by counsel. No issue was taken at the trial with the magistrate doing this. The clarifications sought were pertinent and reasonable in the circumstances.
96 The point of the boxes seems to be that items were assumed by staff at the school to be personal which may or may not have been. This uncertainty was relied upon by the appellant as indicating that items allegedly stolen by her could not be said with any certainty to belong to the school. In any event, there does not seem to have been any real significance in the actual contents of the boxes. Counsel was content that the witness was able to give a general description of the contents. As he noted, he was discharging his obligations to his client by adducing evidence in that regard. There was clearly no necessity to tender the boxes and there was no effort to do so.
97 The next passage relied on by the appellant appears in crossexamination:
HIS HONOUR: Did you suggest earlier that the Terry's document was lost? I think that's what you said?---No. It was in the school - - -
Was it?--- - - - but because the school when a previous complaint was made the person that made the complaint took paperwork out of my invoice files - - -
PROSECUTOR: Is that what you're alleging?--- - - - and I am saying that the school has had File Shred in there, which dispose of records and some of that paperwork was - - - (ts 15/12/11, page 127).
98 There is nothing improper about this passage. It is clear that the magistrate was simply seeking a clarification of the appellant's evidence.
99 The final passage relied upon by the appellant was in her crossexamination by the prosecutor and is as follows:
When the property was removed from your place and taken to the police station do you accept that that's the same table and chairs and bench that was bought at Tuckey's Mitre 10 for the school that was delivered to your house?---Yes.
That's some two years and three or four months, isn't it?
HIS HONOUR: Good point?---18 months, two years, yes.
PROSECUTOR: November 2008 to February 2011 - - -?---No. It's December 2008 it was delivered.
Pardon?---It was delivered in December 2008.
HIS HONOUR: Anyway it's a substantial period of time. Yes?---Yes.
PROSECUTOR: It's over two years, isn't it?---Yes (ts 15/12/11, page 161).
100 The appellant suggests that the magistrate's comment, 'Good point?' was unfair. Presumably the suggestion is that this was indicative of prejudgement of an issue or was an encouragement to the prosecutor.
101 The questions at this point related to the table and chairs located at the appellant's house. Her explanation was that although these items had been purchased for the school they had been delivered to her house by mistake. The point being made by the prosecutor was that a long time had passed for her to correct any such mistake and return the items. The point was well made. It might have been more appropriate for the magistrate not to comment, but it was not a comment that rendered the trial unfair.
102 The number and length of passages referred to above may give the impression that there were significant interruptions during the course of this trial. In fact, as I have endeavoured to point out, the trial was a comparatively long one by the standards of the Magistrates Court. It proceeded over two days and a large number of witnesses were called. There were a significant number of charges and the evidence was relatively detailed and complex. In these circumstances, it would be expected that there may be some interruptions from the magistrate, particularly where it was necessary to clarify evidence.
103 The passages referred to above are not the only ones where the magistrate spoke. There were many others to which no exception was taken. The appellant did not suggest that the tone or behaviour of the magistrate was in issue. The only matters relied upon were the contents of the transcript passages.
104 Neither individually nor together do the passages represent such a significant interference in the normal conduct of the trial as to render it unfair. The suggestions that the appellant was denied an opportunity to properly present her case are without foundation. As I have earlier noted, defence counsel at the trial was a senior and very experienced criminal lawyer. To the extent that on occasions his questions were interrupted and the magistrate may have expressed some irritation, particularly regarding leading questions, there is nothing to suggest that counsel was intimidated or deterred from putting all matters that he wished to put on behalf of his client.
105 It was not suggested that the magistrate was biased or that there was any basis for suggesting that there was an appearance of bias. There was no ground of appeal to this effect and there was no complaint in this regard made at the trial. Indeed, any suggestion of bias or perceived bias was specifically disavowed by counsel on the hearing of the appeal. Thus it is the effect of any interruptions in the context of the trial as a whole that is at issue.
106 No doubt there can be occasions when interference by a magistrate will become so frequent and disruptive as to render the trial unfair. It is always a question of degree. Having read the whole of the transcript in this case I am not satisfied that that point was reached in this trial. Accordingly, I am not satisfied that there was a miscarriage of justice.
107 In those circumstances, an extension of time in which to commence the appeal must be refused.
(2000) 199 CLR 620
(2001) 79 SASR 569
(1984) 3 NSWLR 572