R v Scott [1997] QCA 300

Court of Appeal (Qld)|1997-07-21|Before: MacRossan CJ, Davies JA, Byrne J

THE CHIEF JUSTICE: We are concerned with an appeal against conviction and an application for leave to appeal against sentence. The appellant was convicted and sentenced on

9 April this year. There were eight counts involved in the indictment, of making false entries in documents with intent to defraud.

The offences occurred in the period between December 1992 and November 1994. The appellant had pleaded not guilty and been found guilty on all counts after a trial. The notice of appeal, as originally drawn, made brief and very general points, but subsequently, an amended notice of grounds of appeal was put before the Court and notice of it given to the respondent.

What the Court has done so far is to hear argument on the basis set out in the amended grounds of appeal, but has not formally given leave to amend in accordance with them. Argument has, however, not been restricted. The points that were argued under all of the counts differed of course in the

detail to which they refer, but the real issue at trial which became then a topic referred to on the appeal was the element of intent to defraud. The defence, which was run below, was that there was no intent to defraud in the various actions that the Crown was able to point to, but that defence was rejected by the jury's findings.

The questions involved were concerned with the appellant's authority and justification for making the entries in question which resulted in the several sums, the subject of those entries, being passed out of the control of the two different companies involved. Payments were made either to the appellant for his direct purposes or perhaps not quite directly but as he determined and for what could be called his benefit or at least as he chose.

In respect of the false entries, the appellant was responsible for incorrect descriptions of the reasons entered in the company's accounts for making the drawings that resulted from them. There was a claim at trial put forward on his behalf that he was entitled to draw or deal with the amounts concerned, because of the terms of his agreed remuneration package that applied in some instance or instances or because the resultant drawings following the entries provided for payments to be made to meet the company's own business liabilities. In fact the jury was satisfied that that was not so nor in other cases, that it was to recompense him for money already paid by him in effect on the company's behalf nor in a further category, that the moneys resulting from the false entries were to provide advances against the appellant's remuneration entitlements with the resulting advances make within his authority.

The appellant's authority to draw in the way that occurred was thus an issue and the fact is that he did not disclose the drawings that he was making at relevant times.

In the argument on the appeal it was urged that evidence was wrongly admitted in the trial because in the course of

cross-examination, certain material was introduced when it was prejudicial and should not have been allowed.

In one case, the representative of his employer was being cross-examined about his motive for that employer supporting the criminal charges that were brought against the appellant. It was suggested that the criminal charges were fostered because it was an attempt to put pressure on the appellant in respect of civil proceedings involving financial claims that the appellant was then making against the company.

That motive, which was suggested to the witness in cross-examination, was denied by him and in the course of giving that denial and giving an explanation as to why the employers took the case to the police, it was said that the serious level of the total amounts which might be missing had come to light and also that an inquiry had been made in New Zealand, which also encouraged them to take the matter to the police.

On looking at the record, seeing where this answer and explanation now objected to was introduced, I would form the view that the answer and explanation then proffered in response to questions was broadly responsive. An important matter is that no objection was made by defence counsel at the time to the introduction of that evidence.

On another occasion in the course of the appellant's cross-examination, it was suggested to him that he was in a general way, that is not related only to the subject matter of the eight charges on the indictment, drawing more over an extended period that he was entitled to in terms of his agreed remuneration and benefits.

This line of cross-examination again was not objected to and on the face of it, it would seem to have some possible relevance to the intent which was an issue in the trial held at the time the actions in making the false entries was occurring. The Crown had to prove an intent to defraud and it was not irrelevant that they should draw attention to a course of conduct over an extended period which covered the time when the actions in question were occurring.

No objection was made to this cross-examination that is relevant for present purposes.

It was also suggested that there was a lack of balance in the summing-up and that the case for the appellant was not put sufficiently fully.

The record of the summing-up, however, does not particularly demonstrate this. The Judge did not deal at great length with the appellant's defence under every individual item which was charged, but nothing called for that necessarily to be done. The issues which were fundamentally involved, were sufficiently put to the jury and it was made clear that the intent of the appellant at relevant times was an issue.

The jury was told to consider each charge separately, but was left by the trial Judge to consider the course of conduct which appeared or could be regarded as appearing in all of the eight episodes charged as being a matter which could assist them in considering guilt or otherwise on those items separately.

This would appear to be quite a proper direction in the circumstance of this case. Reference was made in the written submissions to two cases in particular. One was The King and Finlayson [1912] ArgusLawRp 76; (1912) 14 CLR 675, where it was indicated that where it becomes an issue to show system, then a course of conduct can quite properly be regarded. That would appear to be undoubtedly correct. A further case, a decision in this Court, R v. Griffiths also is referred to in the written submissions and it would establish the same thing.

No application was made for the discharge of the jury at the trial and no objection was made to the introduction of the items of evidence which have been mentioned.

No miscarriage of justice to me appears to have been involved in the course of the trial. No reason is shown for concern at the way the convictions resulted and no basis has been shown for interference.

The appellant, who had previous criminal convictions, was sentenced to imprisonment for four years on the eight charges where he was convicted.

The sentencing Judge referred to the breach of trust that was involved and the utilisation of the appellant's authority to take money for his own purposes, disguising what he was doing by making false entries in the company's accounting records. The Judge noted that there was nothing of significance in the appellant's conduct since the matters came to light which called for particular clemency.

The matter had been contested. The issue of fraudulent intent being raised was contested by the appellant, unsuccessfully as it turned out. The Judge considered that the way in which the appellant had conducted himself after the matters involved in the charges came to light, called for no particular mercy because there was no indication of remorse.

The appellant was a 48 year old with, as I have already said, prior convictions. These included convictions for dishonesty, the most recent being in 1988 in New Zealand, when he was convicted of stealing or theft as a servant. The sentencing Judge referred to the scale of the breach of trust involved and the need to deter others in similar positions from this kind of breach of trust.

He then said, keeping in mind the total sum of money involved, that he imposed the sentence which I have already referred to. On the hearing of the application for leave to appeal against sentence, counsel for the applicant sought leave to file further affidavits. These, if they were to be accepted in the terms in which contentions appearing within them would indicate, showed that the appellant was owed more by the two companies who were the subject of his actions than he thought himself may have been so at an earlier time and in particular, as he would have thought, at the date he was sentenced.

It was suggested that the applicant's access to company records was restricted so that it is only since the date of sentence that he has been able to form a more accurate estimate of the amount that was owing to him by the two entities, which were the subject of his actions. However, one further fact is this, at the date of trial and at the time he was sentenced below, it was known apparently and accepted, that he was entitled under his agreements with the two companies, to certain sums, which exceeded the amount that his false entries deprived the companies of. It was known at the date of trial and at the date of sentence that there was an agreement reached which was later incorporated in a deed under which the applicant was entitled to be paid some $50,000 in full settlement. This, presumably, would be after making due allowance for the $48,000 approximately involved in these proceedings.

The step was taken below, for whatever reason does not exactly appear, of not bringing that fact to the attention of the Court in the course of the trial and not bringing it to the attention of the Judge when he came to sentence. The fact that a settlement agreement had been reached in the terms that I have indicated, was well known and it can only be for reasons about which we can only speculate, that that matter was not drawn to the attention of the sentencing Judge.

There may well have been reasons why that was not done, but there is no doubt there was a full opportunity and it can only be regarded as due to a deliberate act of the defence and those representing him that that material was not put before the Judge at sentence.

The point, it can be said, on which is urged here, is that it has been established that the applicant intended to defraud the two companies, but his actions were detected, so that he did not succeed in getting the benefit of the sums which were the subject of his fraud dealt with by the false entries, entries which, it can comfortably be assumed, the applicant did not intend to correct.

It can then be said that the applicant engaged in a course of conduct intending to cause the two companies loss, but did not succeed in his plan. However, his intention is clear; the amounts involved are substantial and the action in not putting the matter presently raised before the sentencing Judge was something deliberately done.

Indeed the submission was made on his behalf below, that an appropriate range for sentence in all of the circumstances, was some three to four years. The sentencing Judge did not exceed that range. In the circumstances, it is not open to say, in my opinion, that the sentence imposed should be regarded as manifestly excessive.

In all of the circumstances, I would refuse the application for leave to amend the grounds of appeal and I would dismiss the appeal and I would refuse leave to file the further affidavits objected to at this point at least, by the respondent, dealing with the financial matters which I have canvassed briefly. I would then refuse also the application for leave to appeal against sentence.

THE CHIEF JUSTICE: They are the orders of the Court.

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