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HEARING DATE: 31 October 2002

JUDGES: de Jersey CJ, McPherson JA, Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal allowed to the extent only of varying the verdict of guilty and conviction of fraud with circumstances of aggravation by substituting a verdict of guilty and conviction of stealing with the same circumstances of aggravation. The sentence at trial is imposed in respect of the substituted conviction.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PRACTICE – AFTER CRIMINAL APPEAL LEGISLATION – POWER TO SUBSTITUTE VERDICT OF GUILTY OF OTHER OFFENCE – GENERALLY – Crown Prosecutor proceeded as if charge was stealing – whether judge’s directions to the jury regarding stealing can satisfy requirements of s 408 C Criminal Code / Criminal Code Qld, s 398, s 408 C, s 581(b) / Spies v The Queen (2000) 201 CLR 603, applied / R v Laurie [1987] 2 Qd R 762, considered

COUNSEL: M J Byrne QC for the appellant / M J Copley for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of McPherson JA. I agree with the orders proposed by his Honour, and with his reasons.

McPHERSON JA: The appellant was found guilty at her trial in the District Court at Innisfail on a charge under s 408 C of the Criminal Code of dishonestly applying to her own use money which was the property of Trinity Petroleum Services Pty Ltd. The indictment averred two circumstances of aggravation against the appellant: (1) that she was an employee of Trinity; and (2) that the property was of value $5,000 or more, namely $53,270.80. The jury by their verdicts found each of those circumstances proved.

The prosecution evidence at trial can be summarised as follows. The appellant was employed by Trinity as supervisor at its service station at Tully where, as well as motor fuels, there was a shop that sold foodstuff and groceries. There were several employees some of whom worked morning and others who worked afternoon and evening shifts operating consoles at which money was received from customers. Their instructions were that, once the amount received totalled $400, they were to transfer it to the office safe. The safe, which was equipped with a shute through which the money was deposited, was kept locked. The combination was known only to the appellant and a Mrs McBeath, who was a trusted employee of long standing. The defence specifically disavowed any suggestion that she had taken the money.

The appellant was in charge of other members of staff. As supervisor, she was responsible for banking the money deposited in the safe by the console operators. This she used to do daily on the day following its receipt. Sometimes she made more than one banking deposit in a day, and sometimes, although rarely, some other member would perform the banking for her. If she missed a day, she would bank on the next, and so on.

During a period of about six months running from mid-December 2000 to May 2001, amounts totalling $53,000 or so referred to in the indictment were not banked but simply disappeared. This total was ascertained by checking the printed computer records produced by the console operators against the sums banked to the credit of Trinity as shown on the bank statements. These records showed that from time to time there had been no banking on particular days when, according to the computer records, banking ought to have taken place. When in the course of the police interview, this was put to the appellant, she on more than one occasion said that she understood what was being put to her, but she offered no explanation about what might have happened to the money. Nor had she done so earlier, when company auditors or accountants were sent to Tully to question her about the matter. She made no admissions at all. She did, however, say or imply at one stage that she was being underpaid for the long hours she worked and the responsibilities she was discharging.

At the trial the appellant’s defence appears to have been that the money had not in fact gone missing, or alternatively that someone else had taken it. Much was made of an incident in which a roll of notes containing some $1,500 was seen lying unattended on a counter instead of being deposited in the safe. Mrs McBeath covered it up, but it disappeared later and was not among the money that was banked. The other employees gave evidence of the procedure they followed and denied having taken the money themselves. This left the appellant, who did not give evidence at the trial. The jury found her guilty of the offence, with the circumstances of aggravation alleged, and she was convicted and sentenced. This is her appeal against that conviction.

So far, there has been no hint from this account of the proceedings that anything untoward happened at the trial . However, although the offence charged was one of fraud under s 408 C of the Code, the Crown Prosecutor at the trial seems to have preferred to regard it as one of stealing under s 391 of the Code, and he evidently addressed the jury on that footing. The learned trial judge adopted a similar approach in his summing up, in which his directions at many points referred to stealing and to elements of that offence as defined in s 391. In only a few instances were his directions related to the offence of fraud under s 408 C as charged. During a break in the summing up, counsel for the defence brought this phenomenon to the attention of his Honour. In doing so he did not distinctly object to what had been said in the summing up, but spoke of its becoming “messy” or “difficult” to “roll up” or combine “this concept of stealing and fraud”, while adding that he “wouldn’t quibble with this if it was a count of stealing”. His Honour responded by remarking or asking if, by not charging stealing, the Crown had not in fact created an “extra hoop” for itself to jump through. The Crown Prosecutor joined in with the rather unhelpful observation that the least his Honour said about it the better, and that to dwell on it any further was likely to confuse the jury. With that, the question was allowed to drop.

It is necessary here to refer to and compare the provisions of the Code concerning stealing with those concerning fraud. In defining “stealing”, s 391(1) begins by saying that a person is said to steal a thing if he fraudently takes anything capable of being stolen, or fraudulently converts it to his use or to the use of anyone else. Section 391(2) goes on to define the term “fraudently” by saying that a person who takes or converts something is “deemed” to do so fraudently if he does so with any of a number of intents specified in paras (a) to (f) of that subsection. Paragraph (f) is relevant here. It provides:

“(f)in the case of money - an intent to use it at the will of the person who takes it, although the person may afterwards repay the amount to the owner.”

By comparison, s 408 C of the Code in constituting the crime of fraud provides:

“(1)A person who dishonestly -

(a)applies to his or her own use …

(i)property belonging to another …

commits the crime of fraud.”

There are subsidiary provisions and definitions, including in 408 C(3)(a) a provision that a person’s act may be dishonest even though:

“(ii) he or she intends to afterwards restore the property or to make restitution for the property …”.

Section 408 C was introduced into the Code substantially in its present form as the offence of misappropriation of property. It was, with some relatively minor amendments, repealed and re-enacted in 1997 as the crime of fraud.

At common law larceny was an offence against possession analogous to the civil tort of trespass to goods. Assuming in the present case that the money was taken by the appellant after it had reached the safe, it would at that stage presumably have passed into the possession of Trinity as owner, and the taking could have been prosecuted as larceny; if not, it would have to have been charged as embezzlement under one of the statutes creating or later extending that offence: Kenny’s Outlines of Criminal Law (ed J W C Turner) §318, at 263-264. It was to avoid complexities like this that the Criminal Code in s 391 provided for a single offence of stealing constituted by either taking or conversion. See Ilich v The Queen (1987) 162 CLR 110, 114-115, 123-124. A very early example of its application in Queensland is to be seen in Re A Solicitor [1902] St R Qd 9, at 9-10, where a solicitor kept money paid to him for work to be done that was never performed, and refused or failed to pay it back to his client. Griffith CJ said it was a case of stealing under the Code. Nowadays, it could no doubt also be seen as an application to own use of property belonging to another within the meaning of s 408 C(1)(a)(i).

In the present case, the trial judge in his summing up directed the jury primarily in terms of stealing as defined in s 391(2)(f) of the Code. He told them:

“… so far as stealing is concerned, someone is said to steal something if the person fraudently takes something capable of being stolen … and a person takes something if the person, in the case of money, takes money with an intent to use it as the will of the person who takes, even though the person may intend to afterwards repay the amount to the owner.”

Had the charge been one of stealing, this direction would have satisfied the requirements of s 391(2)(f). His Honour went on, however, to add that if someone for whatever reason, for example, to pay a pressing debt of their own, takes money from a safe, in those circumstances:

“it will be stealing and that will be a dishonest application if you are satisfied that it is dishonest according to the test of the reasonable honest person in the community.”

This addition to what had gone before seems to have been designed to cater for the provisions of s 408 C(1)(a)(ii), which refers to a person dishonestly applying to her own use property belonging to another. As a direction under that provision it was incomplete. In R v Laurie [1987] 2 Qd R 762, 763, Connolly J, speaking on behalf of the Court of Criminal Appeal and applying English decisions under the Theft Act 1968, said that the jury, in determining whether an accused has acted dishonestly, should:

“… first consider whether what he did was dishonest by the standards of ordinary honest people and, if they found that it was, they had then to consider whether the accused himself must have realised that what he was doing was by those standards dishonest.”

The trial judge’s direction in this instance satisfied the first but not the second requirement of “dishonestly” in s 408 C(1). In substance he repeated this direction only a little later when he said:

“If that money is taken without the consent of the owner, then that is stealing and, in the case of this charge, it will be a dishonest application if you are satisfied firstly, that there was such an intent to use the money contrary to the rights of the true owner, even without intending to pay it back, if you are satisfied that a person doing that with that intent was acting dishonestly according to the normal standards of the community, the honest reasonable citizen …”

Because this direction did not concern itself with the second or subjective requirement of dishonesty or “dishonestly” predicated in R v Laurie but only with the first objective or community standard, it cannot be considered a sufficient direction for the purpose of s 408 C. Prima facie, therefore, there has been a misdirection which would ordinarily result in the appeal being allowed and the verdict and conviction of fraud under that section being set aside. On behalf of the Crown on appeal, however, Mr Copley of counsel submits that it is open to this Court acting under s 668F(2) of the Code to substitute for the verdict of fraud found by the jury a verdict of guilty of stealing, and that the Court ought to take that course here.

Section 668F(2) of the Code provides:

“Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the Court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.”

The operation of a statutory provision in these terms was recently considered in Spies v The Queen (2000) 201 CLR 603 in an appeal from New South Wales where the relevant legislation contains a provision which, like that in other Australian States including Queensland, owes its origin to the Criminal Appeal Act 1907 in England. In Spies v The Queen (2000) 201 CLR 603, 612, the High Court, following an earlier decision in Calabria v The Queen (1983) 151 CLR 670, 676, held that it was a condition precedent to the exercise of the power conferred by s 669F(2) or its equivalent that the verdict proposed to be substituted be one that the jury could have returned at the trial on the indictment which was in fact presented.

In this instance, that requirement is satisfied. The indictment presented at the trial before the District Court in Innisfail charged the appellant with having, contrary to s 408 C, dishonestly applied to her own use money the property of Trinity Petroleum Services Pty Ltd. Upon an indictment charging a person with the offence of fraud with or without a circumstance of aggravation, s 581(b) of the Code provides that the person so charged may be convicted of any other of the offences in s 581 committed with respect to the same property “if such other offence is established by the evidence”. One of the offences specified in s 581(a) is “stealing, with or without a circumstance of aggravation”. Moreover, as with fraud, as provided in s 408 C(2), the maximum punishment for the offence of stealing is imprisonment for five years: s 398(1), unless the offender is a servant and the thing stolen is property of the employer: s 398, case 6, or the value of the thing exceeds $5,000: s 398, case 10, in both of which cases the maximum punishment is imprisonment for ten years. This is also the maximum punishment for fraud by an employee: s 408 C(2)(b); or if the property is of a value of more than $5,000: s 408 C(2)(d). In other words, the two offences are alike in their seriousness and the severity of the punishment they are capable of attracting.

The first requirement or condition precedent for the application of s 669F(2) is therefore satisfied. In Spies v The Queen (2000) 201 CLR 603, 621, Gaudron, McHugh, Gummow and Hayne JJ, with Callinan J assenting, said that the section:

“… does not operate unless it appears to the Court of Criminal Appeal to the point of certitude that the jury did find certain acts or omissions and that those acts or omissions, as a matter of law, made the accused guilty of the other offence. If there is any other outstanding issue, whether of fact or opinion in respect of the ‘other offence’ which is not covered by ‘the facts’ found to the point of certitude, the Court … cannot exercise the power to convict which is conferred” by s 669F(2).

The question therefore is whether this requirement is satisfied here to the level of certitude. At the trial there were at all times three matters in issue. Two of them were the same irrespective of whether the offence charged was fraud under s 408 C or stealing as defined by s 391(2). Those two issues were whether (1) money had gone missing; and (2) whether it had been “taken” or “converted” by the appellant: s 391(2), or “applied” by her to her own use: s 408 C. It is to my mind clear to the point of certitude that each of those facts or matters must have been found by the jury in arriving at their verdict of guilty of the offence charged. It is true that “take” in s 391(2) looks to the moment of abstraction of the money, or of “asportation” as the old law would have called it; while “converts” in s 391(2) comprehends “applies .. to own use” in s 408 C(1)(a). Indeed, applying someone else’s money to one’s own use or that of someone else is the primary form of conversion under the general law, and for present purposes the two expressions may be considered synonymous.

What remains is the third of the three matters in issue, which is the state of mind with which the act of taking, converting or applying is done. In the case of s 408 C, the application to own use must be done “dishonestly”. I have referred to the deficiency in the trial judge’s direction on this element of the offence of fraud having regard to the decision of the Court of Criminal Appeal in R v Laurie [1987] 2 Qd R 762, 763; but what his Honour did in fact was to sum up to the jury in terms of s 391(2)(f), which in the case of stealing “deems” there to be an intent to use the money, which is taken or converted, at the will of the person who takes or converts it, even though that person may intend to afterwards repay the amount to the owner. Those are the very words that were used by his Honour in directing the jury in this matter. As a summing up on a count of fraud under s 408 C, the directions were deficient; but as a summing up on a charge of stealing in terms of s 391(2)(f), the directions were in law complete.

In substance, therefore, what happened in this case was that the jury found the appellant guilty of the offence charged in the indictment, which was fraud, on summing up that was both appropriate and adequate for a charge of stealing, which is a verdict that, together with the two circumstances of aggravation averred, was open to them to find as an alternative to fraud both on that indictment and, as it happens, on that summing up. In these circumstances, it is open to this Court acting under s 668F(2), and having attained the level of certitude required by Spies v The Queen, to substitute a verdict of guilty of stealing with the same circumstances of aggravation as were found by the verdict of the jury on the charge under s 408 C. It may be that his Honour had this outcome in mind when he summed up in the form he did. If so, it is not a course to be recommended. He ought to have summed up on fraud with appropriate directions to the jury that they were empowered to bring in a verdict of guilty of stealing as an alternative to fraud. As it is, however, there was no prejudice to the appellant from the way in which matters worked out at the trial. The jury were directed that the appellant could be convicted if they were satisfied that she had taken money with the intention of using it at her will, even though she might have intended to pay it back. That was sufficient to constitute the necessary state of mind for the offence of stealing.

Having reached the requisite state of certainty that the jury must have been satisfied beyond reasonable doubt of the facts which proved the appellant to be guilty of the offence of stealing which in law she had committed, I would, acting under s 668F(2) of the Code, substitute a verdict of guilty of that offence in place of the verdict of guilty of fraud which the jury found at the trial. There being no difference in the maximum sentences for the two offences, or when accompanied by the aggravating circumstances that were found here, the sentence (which has not been the subject of an appeal) imposed for fraud may be left to stand as the sentence for stealing of which she will in those circumstances be convicted.

Two further and distinct grounds were advanced in support of the appellant’s appeal against her conviction. The first was that the trial judge had failed to direct the jury adequately with respect to evidence of good character that was adduced by the applicant from several witnesses called at her trial. However, the judge correctly directed the jury that the evidence in question could be taken into account by the jury both in deciding, first, whether the accused was the sort of person who would do such a thing; and secondly, in assessing her credibility. As to the latter, his Honour added that the evidence had only a limited application to the case, in that she had not given evidence at the trial. He reminded the jury, however, that she had pleaded not guilty and her responses during the police interview might on review be regarded as a denial that she had taken the money, “which was a matter for you to assess in the context of looking at the character evidence”. There was no request at trial for a redirection on this aspect of the summing up, which in my opinion was not only correct in law but sufficient for the occasion.

The other ground of complaint was that his Honour had directed the jury in terms of Weissensteiner v The Queen (1993) 178 CLR 217. What is now objected to is that his Honour told the jury that the Crown had pointed to the absence of any response to the police when she was interviewed that might explain how or why the money had gone missing, “which perhaps you ought expect her to say when interviewed by police if [there] was an explanation for things like this”. In support of this submission, reliance was placed on Azzopardi v The Queen (2001) 205 CLR 50; but what was said by the High Court there was specifically related to the accused’s failure to give evidence in court, and his Honour said nothing about that here. Of course, the appellant was not obliged to respond to the police questioning; but her failure to explain then what could or might have happened to the money meant that there was simply no account or even suggestion from her side as to what might have happened to it. To mention that, as his Honour did, as being part of the Crown case was to do no more than to state a fact without in any way transferring the onus of proof away from the Crown and on to the appellant at trial. The appellant’s submission on the point cannot be supported.

The appeal should be allowed but only to the extent of varying the verdict and conviction by substituting one of stealing for that of fraud together with the circumstances of aggravation as found by the jury. In other respects the verdict of guilty, the conviction, and the sentence should stand.

MULLINS J: I agree with the reasons of McPherson JA and the orders proposed by his Honour.