Regina v Thompson

Regina v Thompson - [2002] NSWCCA 149 - NSWCCA 2002 case summary — Zoe

[8]

The appeal against conviction and sentence 2 This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was represented by Mr Button in regard to the appeal against conviction but he argued his application for leave to appeal against sentence himself. Mr Button did not appear at the trial. Ms Cinque appeared on behalf of the Crown in the appeal. She, too, did not appear at the trial. 3 On 22 November 2000 the appellant was charged before Kinchington DCJ and a jury in respect of 40 counts of imposing upon the Commonwealth by an untrue representation. Each of these charges alleged an offence contrary to s 29B of the Crimes Act 1914 (Cth). 4 The charges were said to arise in the following circumstances. The appellant was employed as an administrative services officer in the Retirement and Disability Unit of the Penrith office of Centrelink from 21 October 1996 to June 1999. The Crown alleged that over a period of some months, while the appellant was so employed, he used his computer "logon" identification fraudulently so as to cause electronic benefit transfer ("EBT") cards to be issued by the computer system in the Centrelink Penrith office. The cards were purportedly issued in favour of certain pensioners, who were unaware that this had been done. 5 The EBT cards purported to entitle the identified pensioners to credits of various amounts. The Crown alleged that the appellant used automatic telling machines ("ATM's") to withdraw cash representing the amount of each such credit. The total amount of money so withdrawn was $20,190. Each of the 40 counts related to the issue of a single EBT card and its subsequent encashment. 6 The appellant was acquitted in respect of counts 3, 4, 16 and 17. He was found guilty in respect of the remaining 36 counts. Kinchington DCJ sentenced him to imprisonment in the aggregate for three years and nine months with a non-parole period of two years six months. His Honour made a reparation order of $20,190 in favour of the Commonwealth. 7 The appellant raised two grounds of appeal in respect of his appeal against conviction. The first ground was that the verdicts of guilty on the 36 counts were unreasonable and could not be supported, especially in the light of the evidence regarding the four counts on which he was acquitted. The second ground incorporated two arguments. The first argument was that the trial judge repeatedly intervened in the examination and cross-examination of witnesses to an extent that resulted in the trial being transformed from an adversarial contest presided over by an impartial judge into inquisitorial proceedings in which the judge played an extremely active role. The result, it was submitted, was that the trial was not a trial in accordance with our law. The second argument was that the judge's interventions resulted in the appellant being denied a fair trial according to law and this led to a miscarriage of justice.

[9]

The first ground: was the verdict unsafe? 8 Effectively, the appellant did not dispute that each of the 40 EBT cards was fraudulently issued. The crucial question at the trial was, rather, whether the appellant was the person responsible for the issuing of the EBT cards and the collection of the money in respect of those cards from the ATM's. 9 Generally, EBT cards were issued by Centrelink to persons entitled to instalments of Centrelink benefits or pensions in what were regarded as "emergencies". Once an EBT card was issued to a particular person, that person could use the card at an ATM (in the same way as a credit card is so used) to withdraw a sum of money in accordance with instructions that had been electronically programmed into the EBT card by a computer operated in the Centrelink Penrith office. 10 A security system was in operation at the relevant time that was designed to ensure that EBT cards were issued only to appropriate persons. Part of the security system involved each person who operated a computer in the Penrith office having (and using) a logon identification and one or possibly two passwords. While the logon identification of each employee was generally known within the office, it was departmental policy that no employee should tell anyone else his or her current password. While the logon might generally be known within the office, the password was not. 11 At a later time, a system involving a "smart card" was introduced. This required use of such a card with a unique PIN number known only to the holder. The holder would use the smart card to gain access to the computer. 12 On each occasion that a person gained access to the computer (whether under the initial security system or under the later smart card system), a record was generated of such access. 13 The 40 offences charged fell into two categories. The first comprised instances where moneys were withdrawn from ATM's during periods in the working day when the appellant's logon identification and password were shown to be inactive. The second category comprised instances when moneys were withdrawn from ATM's after the appellant's working day had finished. 14 In regard to the first category the Crown attempted to establish that, in each case, the period of computer inactivity relating to the appellant's logon identification and password was sufficiently long to enable the appellant to have walked to the ATM from which the money was withdrawn, effected a withdrawal, and then returned to the office. Similarly, in respect of the withdrawals after work hours, the Crown attempted to establish that, in each instance, there was sufficient time between the cessation of computer activity on the part of the appellant and the particular withdrawal from an ATM for the appellant to have effected each withdrawal. 15 The Crown led evidence at the trial to the following effect:

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(o) The issuing of the EBT cards, the subject of counts 10, 24, 30 and 40, was approved by a second officer in circumstances where it was likely that the second officer would have known under which logon identification the computer had been activated and would have noticed if the person requesting the approval for the issuing of the cards was not the appellant. 16 As regards counts 3 and 4, the periods between the withdrawal of cash and the resumption of computer activity under the appellant's logon identification and password were too short for him to have been able to return to the office after withdrawing the money from the ATM's in time to resume the recorded computer activity in the Penrith office. 17 As regards counts 16 and 17, the periods of inactivity of the appellant's logon identification and password were too brief for him to have left the Centrelink premises and walked to the ATM's concerned to withdraw the money. 18 Accordingly, there was a significant difference between counts 3, 4, 16 and 17, on which the appellant was acquitted, and those counts in respect of which he was found guilty. That is to say, the difficulties in regard to time that the Crown faced in regard to counts 3, 4, 16 and 17 did not exist in regard to the other counts. Therefore, it could not reasonably be argued that the verdicts in respects of counts 3, 4, 16 and 17 were inconsistent with the guilty verdicts within the meaning of the authorities. Mr Button, counsel for the appellant, quite properly did not submit that there was such an inconsistency. Rather, he submitted that when considering all of the evidence, and paying proper regard to the four acquittals, the 36 verdicts of guilty were unreasonable. This submission, in essence, went to the weight of the circumstantial evidence against the appellant. 19 As mentioned, the Crown case in respect of counts 3, 4, 16 and 17 was that the appellant had activated the computer at the office reception desk with his logon identification and password, and had left the computer so operating while he walked to the ATM's to withdraw moneys. Mr Button pointed to the fact that the appellant's defence to the mass of circumstantial evidence against him was that someone else had used a computer that had been activated with the appellant's logon identification to carry out the fraudulent operations. Thus, it was said, the Crown case in respect of counts 3, 4, 16 and 17 accepted the reality of the possibility on which the appellant's defence was based. This was the strongest argument raised by Mr Button in regard to this ground. 20 Mr Button also pointed to the fact that the appellant had raised character as a defence and had gone into evidence to deny the charges against him. 21 Mr Button accepted, however, that, in regard to the 36 counts, there was no gap or missing link in the Crown case. 22 I am not persuaded by the argument advanced on the appellant's behalf. The Crown case against the appellant was powerful. The accumulation of all the matters on which the Crown relied (which I have set out above) made out a very strong case. There was ample evidence on which a jury could find, reasonably, that the appellant was guilty of the 36 charges. The point made by Mr Button concerning the reception desk computer is no answer to the strength of the Crown case in regard to the 36 charges. 23 Once it is accepted that there was no missing link in the chain of evidence implicating the appellant, and that the verdicts of acquittal were not inconsistent with the verdicts of guilty, then it cannot be said that it was not open to the jury, on the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty: see M v The Queen (1994) 181 CLR 487. I would dismiss the first ground of appeal.

[27]

His Honour's explanation for holding the voir dire is difficult to understand. A decision as to the relevance or otherwise of evidence is usually determined during the course of the trial upon objection by a party to the evidence. Relevance is not usually determined by means of a voir dire called at the judge's own motion where only the judge questions the witness. Furthermore, in the circumstances of this case, it is not clear to me how the holding of the voir dire would have assisted the judge in preventing matters prejudicial to the appellant being brought out later in evidence. 28 Nevertheless, it cannot be said that the holding of the voir dire caused the appellant any prejudice. It took place in the absence of the jury and nothing that was said in the voir dire had any bearing on the case or any influence over it. It does, however, support the argument that, at times during the case, his Honour had an unusual attitude to his judicial duties. 29 His Honour intervened many times in the running of the trial by asking questions of the witnesses. He questioned Crown witnesses as well as the appellant and not only in cross-examination but in chief. Many of the interventions involved the asking of a small number of questions. Others, however, involved extended questioning where the interchange between his Honour and the witness concerned occupied two to three pages of the transcript. 30 In his written submissions Mr Button stated that the trial transcript showed that Kinchington DCJ asked 358 questions of the appellant "of which 261 went beyond clarification and other non-objectionable matters". Without verifying the arithmetic, there can be no doubt that his Honour asked a vast number of questions while the appellant was being cross-examined. Some of these questions brought out weaknesses in the defence case. Some were indicative of a disbelief on the part of his Honour of evidence that had been given by the appellant. 31 The appellant's evidence itself occupied some 220 pages of the transcript. The number of questions asked of the appellant by his Honour must be seen against this background. Ms Cinque, who appeared on behalf of the Crown in this appeal, pointed out that the trial lasted 19 sitting days and Mr Brazier had described the proceedings as a "difficult and complex trial". As Ms Cinque observed, "there was a vast amount of evidence both testimonial and documentary involving the operation of the Centrelink computer system". At times, the evidence given on technical issues was not easy to understand, and the points that counsel were attempting to elicit were difficult to bring out. Much of the judge's questioning was prompted by this. 32 When the questions Kinchington DCJ asked are examined without reference to the context of the trial as a whole, it could be said that he asked an unusually large number (relative to the amount of questions a judge might customarily ask). But when regard is had to the trial as a whole, and measuring the number of questions his Honour asked against those asked by counsel, that number is relatively very small.

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38 Notwithstanding the many judicial comments that have been made in regard to the issue, the boundary between permissible judicial intervention in a criminal trial and intervention of a kind that results in an unfair trial is not capable of clear definition. While the line may be narrow and the ice may be thin, the line is not bright and it is not always easy to determine whether the ice will hold. There are, indeed, circumstances in which a trial judge may legitimately intervene in a criminal trial. 39 In a proper case, intervention may be warranted for the purpose of preventing undue delay or to ensure that the parties focus on the crucial issues in the case, and a judge who does not so intervene may be criticised by an appellate court: see R v Wilson and Grimwade [1995] 1 VR 163. Whether the degree of intervention is appropriate is a matter of balance and judgment. In this case, however, the vast majority of the interventions by Kinchington DCJ were not designed to curtail the proceedings and they were not made for the purposes of managing the conduct of the trial. 40 It has long been accepted that a judge may intervene for the purpose of clarifying the evidence (see, for example, Yuill v Yuill [1945] 1 All ER 183). That is to say, clarifying it not only so that the judge understands it but so that the jury understands it as well. 41 In the course of clarifying the evidence, the judge may, involuntarily, but inevitably, assist either the prosecution or the defence. But I do not accept that that makes such an intervention improper. It is not the law that a judge must allow the evidence to be left in a state of incomprehensibility. We have long since departed from the "game" or "sporting" theory of justice; see the remarks of Hope JA in Bassett v Host [1982] 1 NSWLR 206 at 207 and Mahoney JA in GIO of NSW v Glasscock (1991) 13 MVR 521 at 530. 42 That having been said, it must be emphasised that intervention for the purpose of clarification does not necessarily require the judge to question the witness. The judge may readily achieve clarification by pointing out, at an appropriate time, usually in the absence of the jury, evidential ambiguities or obscurities to counsel. That is by far the most desirable course. It should be left to counsel, whenever possible, to deal with such matters. If the judge undertakes the task by questioning witnesses, there is the danger that he or she will assume, albeit temporarily, the role of counsel and become identified with the cause of one side or another. Unfairness can readily be the consequence. 43 If a judge does question a witness, and goes beyond mere clarification, the trial is not automatically unfair. In R v Hopper [1915] 2 KB 431 Reading LCJ, in delivering the judgment of the English Court of Criminal Appeal, said (at 435): "Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself".

[51]

The questions so asked were undoubtedly not designed to clarify material. They were questions that could properly be categorised as cross-examination. In my view they were unfair and by asking them the judge transgressed the bounds of his obligation to conduct the trial in a neutral and impartial manner. 55 Having dealt with the individual questions to which Mr Button gave particular emphasis, I return to my general impressions of the questioning conducted by Kinchington DCJ and the overall effect of his interventions. 56 Some of the difficulties that Kinchington DCJ sought to clarify were of a kind where obscurities could be (and were) resolved by a one or two brief questions. I do not think that those questions were improper. There were instances, however, where the obscurities were more substantial, and where several questions were needed to clarify them. I think those questions should not have been asked by the judge. The difficulties he had should have been resolved by his Honour directing the attention of counsel to them in the way I have earlier suggested. 57 In some instances, the judge disturbed the flow of the defence cross-examination and hampered Mr Brazier in his cross-examination. I do not think, however, that - at any stage - the prejudice was of any real significance. 58 In some instances the jury could have gained the impression from the manner of questioning and the content of the questions that Kinchington DCJ was sceptical about certain aspects of the defence case. Such an attitude on the part of the trial judge is not unknown in our system and the mere fact of its existence does not give rise to an unfair trial. As with all the pertinent factors in this case, issues of degree arise. It was undesirable and inappropriate for the judge to allow his views to become apparent. But I am not persuaded that the extent to which this occurred gave rise to an unfair trial. 59 His Honour at times became impatient with counsel (both for the prosecution and the defence), and in some instances where questions were not properly asked, but where the thrust of the questions was apparent, he simply took over the questioning, apparently in a desire to shorten the proceedings. There is little to commend this practice, and occasionally his Honour's questioning worked to the prejudice of the appellant. In the particular circumstances of the case, however, I do not think that that prejudice resulted in significant unfairness. 60 The practice of the judge in, at times, bringing out the salient points of the evidence of Crown witnesses, either during the course of examination in chief or after re-examination, was highly undesirable. I accept that to an extent the appellant was prejudiced thereby, but in the particular circumstances the extent of the prejudice was not so significant as to render the trial unfair. 61 Mr Brazier objected several times to questions asked by Kinchington DCJ. He asked the judge to stop "cross-examining" on more than one occasion. His Honour considered the term "cross-examining" to be offensive and asked that it be withdrawn. At one point Kinchington DCJ explained that he had asked certain questions to clarify the evidence as he did not understand it. Despite the several objections by counsel for the appellant, the judge persisted. Indeed, it appears, at times, that an objection by counsel would incite his Honour to further bouts of extended questioning. This was plainly inappropriate. Mr Brazier, however, did not apply for the termination of the trial and the discharge of the jury on the grounds of the judge's conduct. 62 In my view, several of Mr Brazier's objections to his Honour's questioning were without substance. There can be no doubt, however, that on some occasions, as I have noted, the judge's questioning went beyond clarification of the evidence and some of his Honour's interventions should not have been made. But I have concluded that these transgressions, on balance, did not result in significant prejudice sufficient to result in an unfair trial. 63 On reading the transcript I have had real misgivings about some of the judge's questions. Nevertheless, taking into account all the matters to which I have referred, individually and collectively, I am not persuaded that there has been a miscarriage of justice. I would dismiss the appeal against conviction.

[52]

Application for leave to appeal against sentence 64 Kinchington DCJ sentenced the appellant to a term of three years and nine months imprisonment with a non-parole period of two years and six months. His Honour made a reparation order in favour of the Commonwealth of $20,190. 65 The maximum penalty provided under s 29B of the Crimes Act for the offences of which the appellant was convicted was two years imprisonment and/or a fine of $13,800. 66 At the sentencing hearing, the Crown submitted that his Honour was entitled to impose a single sentence based upon the total of the penalties available for all the 36 offences of which the appellant was convicted. His Honour accepted this submission and proceeded to so sentence the appellant. 67 The Crown now accepts that the submissions so made to his Honour were wrong and were contrary to R v Edward Spencer Pearce (2001) NSWCCA 447 in which this Court (citing R v Bibaoui (1996) 87 A Crim R 527 and R v Jackson (1998) 104 A Crim R 196) held that the imposition of a single sentence for a number of offences was impermissible where the Crown has proceeded by way of indictment. 68 In the circumstances this Court is required to re-sentence the appellant. In so doing the Court is required to pay due weight to the overall sentence imposed by Kinchington DCJ. 69 The applicant, who as I have mentioned represented himself in the application for leave to appeal against sentence, filed two sets of written submissions. I shall deal with the matters raised in those submissions. 70 The appellant pointed out that his wife suffered from medical problems that were relatively serious. She is an insulin dependent diabetic. She was described by a treating doctor as being "in a very disabled state". She experienced insomnia and "self-recriminatory thoughts". The appellant asserted that his wife required "a lot of care and attention" and this was borne out by medical reports. 71 Kinchinton DCJ referred expressly to the health of the appellant's wife and observed that "she is not in the best of health and is undoubtedly very dependent upon the offender". His Honour expressly noted that "a custodial sentence would undoubtedly impact on his wife". 72 Despite taking into account the matters to which the appellant has referred, the judge considered that the offences were so serious that they required the imposition of a custodial sentence. I am not persuaded that his Honour erred in this respect. 73 The appellant submitted that Kinchington DCJ gave insufficient weight to his pre-existing medical condition. In particular, the appellant submitted that the judge had not accorded adequate weight to the conclusions of Dr Canaris which were to the following effect: "I would respectfully suggest to the Court that there are strong psychiatric, social and for that matter physical grounds in my opinion to consider non-custodial options as far as possible. Any of these factors taken in isolation would not suffice to draw me to that conclusion. All of them taken together, however, cause me very considerable concern". 74 The appellant referred to other medical conditions from which he suffered. These include renal problems and encephalopathy. Further, on 19 February 2001 he fractured his fibula. These matters were referred to in a report by Dr Lim and the appellant complained that his Honour made no specific mention of the contents of Dr Lim's report. 75 Kinchington DCJ however did make express reference to the medical reports of Dr Canaris and Dr Lim. He referred to Dr Canaris' opinion that the appellant "by any standard is a very sick man" and that the appellant had "a substantially shortened lifespan". His Honour recognised that the appellant would find custody a difficult and onerous experience. He stated that he took into account the fact that the appellant's "psychological and medical health and age may increase the hardships that he will undergo while in custody". 76 In the circumstances Kinchington DCJ made no error in failing to have regard to the appellant's medical condition. 77 His Honour said: "[T]his was a well conceived and blatant episode of fraudulent conduct committed by the offender on the Commonwealth over the period in question in respect of which conduct the offender has shown no contrition and because in my opinion there are no special circumstances apart from his health which I have taken into consideration which would allow me to approach this sentencing process in any other way." 78 I am not persuaded that the approach of the judge was wrong. It was open to his Honour to conclude that the offences committed were so serious as to require a custodial sentence of the order of that imposed. 79 The appellant made other submissions relating to the sentence that, in a sense, were directed more at the merits of the jury's verdict than the sentence itself. These submissions challenged his Honour's finding that the facts disclosed a course of criminal conduct which continued over a period of approximately four and a half months, a course of conduct carried out in a calculated manner that would have required planning. In my view these findings were open to the judge and I am not persuaded that they were wrong. 80 The appellant submitted that the overall sentence imposed was manifestly excessive. In my opinion there is no substance in this submission. As Kinchington DCJ observed, the criminal conduct involved a considerable degree of planning over a period of four and a half months. Serious breaches of trust took place. In my view, the sentence imposed was within a proper sentencing discretion. 81 In view of the error in sentencing conceded by the Crown, I would uphold the application for leave to appeal against sentence and uphold the appeal. I would set aside the sentence imposed by Kinchington DCJ. I would impose the following sentences in lieu of that sentence. 82 I would sentence the appellant to nine months imprisonment on each of the 36 counts in respect of which he was found guilty. The sentences in respect of counts 40, 5, 34, 37 and 22 should be cumulative upon each other. The sentences in respect of counts 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 38 and 39 should be concurrent with the sentence imposed in respect of count 22. 83 The sentence imposed in respect of count 40 should date from 23 March 2001, the date fixed by Kinchington DCJ for the sentence imposed by him. The sentence imposed in respect of count 5 should date from 23 December 2001, that in respect of count 34 from 23 September 2002, that in respect of count 37 from 23 June 2003, and that in respect of count 22 from 23 March 2004. 84 The aggregate of the head sentences referred to in the previous paragraph would therefore be three years and nine months. I propose that, pursuant to s 19AB(1)(d) of the Crimes Act, a non-parole period of two years and six months be fixed. Accordingly, the effect of the sentences would be the same as the overall sentence imposed by Kinchington DCJ. That is to say, the appellant would serve an overall term of imprisonment of three years and nine months with a non-parole period of two years and six months and he would be eligible to be released on parole on or after 22 September 2003. As Kinchington DCJ observed, whether the appellant will be so released will depend upon the Parole Board which no doubt will take into consideration his behaviour while in custody and any efforts he has made or makes towards his own rehabilitation while in custody. 85 The reparation order made by Kinchington DCJ should remain unchanged. 86 SULLY J: I agree with Ipp AJA. 87 BELL J: I agree with Ipp AJA. **********

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