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R v Scofield

 

[2020] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v Scofield [2020] QCA 101

PARTIES:

R

v

SCOFIELD, Kim Marie

(appellant)

FILE NO/S:

CA No 171 of 2019

DC No 413 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 4 June 2019 (McGill SC DCJ)

DELIVERED ON:

12 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2019

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of fraud in dishonestly applying to her own use bank credits belonging to a company owned by the complainant, two counts being committed as an employee of that company – where each count was particularised as consisting of the appellant transferring bank credits from the company’s bank accounts to her own personal bank accounts and that the appellant was dishonest in that, at the relevant time(s), she had no authority to transfer the bank credits – where the prosecution case was that the appellant had access to the company’s books and accounts through an electronic security access protocol and that while she had authority to make payments and transfers from the company’s accounts for its authorised purposes, including paying her own wages, she did not have the authority to make the transfers the subject of the alleged offences – where the defence case was that the complainant authorised the appellant to make the transfers the subject of counts 1 and 4 – where the defence case in relation to count 3 was that the transfer was not made deliberately, with the appellant being unable to recall making that transfer – whether there was sufficiently considerable evidence before the jury which should have left them in some doubt as to the dishonesty of the appellant’s actions – whether the guilty verdicts were unreasonable and insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the prosecution case in respect of count 3, particularly as to dishonesty, was circumstantial – where the trial judge made it clear to the jury that, in relation to count 3, the appellant disputed having deliberately made the transfer and identified the real issue as being whether or not the transfer was done deliberately and that if the jury so found, they were then required to consider the objective test of dishonesty – where the trial judge did not give the customary circumstantial evidence direction, directing that the existence of a reasonable possibility consistent with innocence would result in an acquittal – whether the failure to give a direction about circumstantial evidence resulted in a miscarriage of justice

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited

R v Dolley (2003) 138 A Crim R 346; [2003] QCA 108, cited

R v Reynolds [2013] QCA 338, cited

R v Sharp [2012] QCA 342, cited

R v TAI [2018] QCA 282, followed

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited

COUNSEL:

L Reece for the appellant

D Balic for the respondent

SOLICITORS:

Anderson Fredericks Turner for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of Philippides JA and the order proposed by her Honour.
  2. [2]
    PHILIPPIDES JA:

Background

  1. [3]
    On 4 June 2019, following a trial by jury, the appellant, Kim Scofield, was convicted of three counts of fraud in dishonestly applying to her own use bank credits belonging to Bazaar Marketing Pty Ltd (Bazaar), a company owned by Ms Simpson, between 23 December 2012 and 6 September 2013 (count 1), on or about 22 December 2013 (count 3) and between 31 October 2015 and 23 February 2016 (count 4), two counts being committed as an employee of Bazaar (counts 1 and 3).[1]
  2. [4]
    The appellant was sentenced to concurrent terms of imprisonment of two years six months for count 1, two years for count 3 and 12 months for count 4.  The sentences were suspended after eight months had been served and a declaration was made as to time served in custody.
  3. [5]
    The appellant appeals against her conviction on the following grounds contained in the amended notice of appeal:
    1. (a)
      the verdict was unreasonable or not supported having regard to the evidence; and
    2. (b)
      the trial judge erred in failing to direct the jury as to the drawing of inferences from circumstantial evidence in relation to count 3 resulting in a miscarriage of justice.

Particulars of the offences

  1. [6]
    Each count was particularised as consisting of the appellant transferring bank credits from Bazaar’s bank accounts to her own personal bank accounts and that she was dishonest in that, at the relevant time(s), she had no authority to transfer the bank credits.  The particulars of count 1 were set out in Annexure A (comprising six transactions varying between $100 and $15,000), the particular of count 3 was set out in Annexure C (being a transaction of $4,435) and the particulars the subject of count 4 were in Annexure D (comprising 34 transactions varying between $100 and $300).
  2. [7]
    For the purposes of the appeal, the respondent collated the particulars of the relevant transactions in a table (Appendix 1) detailing the specific evidence concerning each transaction referrable to the specific counts, including where necessary, reference to the financial exhibits.  No dispute was raised as to the matters as presented in that document which is appended to these reasons.

The evidence at trial

The prosecution evidence

  1. [8]
    The prosecution case was that the appellant had access to Bazaar’s accounts and books through an electronic security access protocol[2] and that, while she had authority to make payments and transfers from Bazaar’s accounts for its authorised purposes, including paying her own wages, she did not have authority to make the transfers which were the subject of counts 1, 3 and 4.

Ms Simpson’s evidence

  1. [9]
    The prosecution case centred on the evidence of Ms Simpson, the owner of the business, Bazaar, which was incorporated in 2012.  It organised stalls in markets as part of festivals, administering applications for stalls and managing documentation and related matters including the hire of equipment and the finances for stallholders.  Ms Simpson came to know the appellant when she was operating the business as a sole trader.  She engaged the appellant on a casual contractor basis[3] to set up and operate an MYOB system for the business.  Ms Simpson was very busy with work and a young family.[4]  Following a redundancy in 2015, the appellant was engaged on an ad hoc basis.[5]
  2. [10]
    The appellant worked initially at Ms Simpson’s home office at Witta and then also at her own residence in a home office.[6]  During the period the subject of count 4, the appellant and her daughter, Chalcei, were living at Ms Simpson’s home.[7]  Over the period that the appellant worked for Ms Simpson, Ms Simpson considered her a trusted close friend.[8]
  3. [11]
    After Bazaar’s incorporation, the appellant attended to document management and managed the transition to a system of accounting using Xero[9] and other financial administration matters for which she had access to Bazaar’s online financial account management systems.  Her financial administration responsibilities included managing money coming in and going out to and from stallholders, invoicing and paying contractors and payroll matters and, for such purposes, had access to funds going into and out of Bazaar.[10]  She was authorised to make payments from Bazaar’s accounts for various purposes, including paying contractors and employees of Bazaar,[11] including herself.  After she became a contractor, she was authorised to invoice Bazaar and pay her own invoices.[12]  Authorisations were given to her verbally.[13]
  4. [12]
    Ms Simpson identified various financial documents which were tendered, including Bazaar’s Suncorp bank statements and a Xero document of financial transactions by which Ms Simpson identified unauthorised transactions.
  5. [13]
    Ms Simpson said there was no agreement about commissions but that she would pay a bonus at Christmas time.[14]  She said that there were “a few loans” to the appellant that she approved, such as $3,000 for a rental bond, money for rent and for the purchase of a camera.[15]  She also lent the appellant money to bring the appellant’s daughter home from America and allowed the appellant and her daughter to live with her family.  There was no agreement that the appellant was authorised to loan herself money.[16]
  6. [14]
    Ms Simpson gave evidence that she noticed a transaction recorded on a Suncorp bank statement of Bazaar.  After speaking to a Suncorp employee, she then contacted the appellant by telephone and told her:[17]

“‘You’ve been taking money from the accounts,’ and her first reaction was, ‘Yes, I have,’ and it was quite cold and … made me very emotional, and I explained to her that it was stealing and … gave her an ultimatum that she had to get that money back into the accounts, otherwise I’d go to the police.”

  1. [15]
    She said that this occurred on 22 February 2016.[18]  There was no agreement as at that date between her and the appellant for the payment of commissions.[19]  Ms Simpson said that at that stage, she had only looked as far back as November and she thought it was just during that period that the appellant was stealing and that the amount involved was $3,500.[20]  Ms Simpson requested that that amount be repaid.  On 22 February 2016, an amount of $3,500 was paid into Ms Simpson’s ANZ bank account, which Ms Simpson said was accompanied by a transaction description, “I am very sorry. Kim’s repayment”.[21]
  2. [16]
    Ms Simpson then discovered that the business documents were in a state of disarray.  She engaged an accountancy firm, Accur, to review Bazaar’s financial documents, by which stage she had also prepared a spreadsheet of transactions to be compared with the Xero files.[22]  Ms Simpson stated that in relation to the transfer of $4,435 from Bazaar’s account, she realised that this amount was paid into a credit card account associated with the appellant.  She did not authorise that transaction.[23]
  3. [17]
    Ms Simpson was shown ex 6, a computer generated document, with the notations “Profit & Loss commission”, “Event/Festival costs” and the amount of “$30,600”.[24]
  4. [18]
    In cross examination, Ms Simpson stated that she made an “initial statement” to police at Maroochydore in 2016 and that, subsequently, on 20 January 2018, a statement was given to Senior Constable Grigalius, which she signed.[25]  Ms Simpson agreed that that statement recorded that she said:[26]

“At no stage did I authorise Kim to make any withdrawals or loans to herself. I only ever authorised that she paid invoices and payroll.”

  1. [19]
    Ms Simpson acknowledged that she updated her police statement because she came to understand that the spreadsheet of transactions that she had provided to police included details of loans she had in fact authorised.[27]  Ms Simpson said that, when she initially stated that she had at no time authorised loans, she was referring to “large amounts that were in the system”.[28]  She sent a spreadsheet of transactions to the business’s accountants who coordinated a further spreadsheet which was provided to the police for their investigation.  She updated her statement as she realised she had “signed something that was not referring as it was meant to”.[29]  Ms Simpson accepted that she updated her statement to include that she had given the appellant a loan for $3,000 for bond and rent and that she gave the appellant another loan for the appellant’s daughter’s car, as well as a loan of $2,500 for the appellant’s daughter to fly back from the United States.[30]  She also accepted that she stated that there were three occasions when she had told the appellant that she could use money from the business to pay herself in advance.[31]
  2. [20]
    She accepted that on the face of some of Bazaar’s bank statements, some transactions had the word “commission” recorded beside the transaction but explained that the appellant used the bank statements and that she did not.[32]  There was a bank feed that automatically journaled the bank transaction, including a reference to commission, into the Xero system.  The system then generated a bill but no invoice was ever submitted by the appellant as such.[33]
  3. [21]
    She maintained under cross examination that the appellant had agreed with her when she accused her of stealing.  Ms Simpson referenced the conversation by recalling that it occurred soon after she got out of hospital.  She also told the appellant she wanted her out of her house.  She sent her a letter of demand by registered mail to the appellant but it was never picked up.[34]
  4. [22]
    She said that there was a profit for the 2013 financial year but it was not ascertained until sometime after the end of the financial year, by which time there was no operating profit.  When she questioned her accountant, that was found to be due to increased spending for the year.[35]
  5. [23]
    She denied the suggestion that, on an occasion at the appellant’s home office, there was a conversation about a commission at which Christine Billett was present.  Ms Simpson said she did not know her and denied the conversation took place.  She denied that there was a conversation where she told the appellant that she could pay herself a commission of 15 to 20 per cent from the Bazaar accounts.  She accepted that she may have had a conversation referring to the Soundwave Music Festival in or around 2012 to 2013, but said that it was not at Dalby Street and that she had “never said that [she] would pay [the appellant] a commission”.[36]  Nor was there any discussion about the appellant paying herself a percentage for extra contract work.[37]
  6. [24]
    Ms Simpson denied that there was an occasion where John Blackmore (an employee of Bazaar) was present with her and the appellant at Dalby Street, where she told the appellant that she could pay commission to herself.[38]

Ms Sharron-Lee Fulwood

  1. [25]
    Ms Sharron-Lee Fulwood gave evidence that she worked as an employee of Bazaar for about seven months.  She initially stated that she was employed from October 2014 to May 2015, but accepted in cross examination that she may have started in October 2013.[39]  She worked together with the appellant at Ms Simpson’s home office at Witta and also the appellant’s office except when the appellant went to Melbourne for a period.[40]  The appellant had primarily kept the books and she assisted with some of the more complex invoices.
  2. [26]
    She said she was told by the appellant that Ms Simpson had bought her an Apple computer as a Christmas bonus and that she received bonuses in the past.  She was aware of commissions that were being paid by Bazaar but they were to other businesses and she did not know of any commission agreements with the employees of Bazaar.[41]  She was aware of loans given by Ms Simpson to friends from the company accounts, which Ms Simpson mentioned were outstanding in the context of money starting to get tight.  She was not aware of any loan to the appellant.[42]

Mr Andrew Sherar

  1. [27]
    Evidence was given by Mr Andrew Sherar, an accountant in a firm engaged by Ms Simpson for her personal and business tax affairs.  He prepared her financial documents from 2013 onwards, including in relation to the financial affairs of Bazaar.[43]  Mr Sherar was engaged to prepare a spreadsheet documenting transactions that Ms Simpson considered concerned transfers from Bazaar’s account to the appellant’s bank account, or accounts associated with the appellant such as her daughter’s bank account.[44]  He did this by accessing Bazaar’s accounting software and viewing the last three digits of the bank account to which the relevant transaction related.[45]
  2. [28]
    In cross examination, Mr Sherar accepted that money could have been inadvertently transferred into the appellant’s bank account as part of an attempt to pay a legitimate reimbursement associated with the business.[46]  Mr Sherar was asked about the amount of $4,435, the subject of count 3 that was transferred to an account associated with the appellant with the notation “Travel Business Vans Tour”.[47]  He accepted that it was possible that that particular transaction had been misallocated to travel if it was a personal travel expense of Ms Simpson.[48]  However, it was shown as “L Simpson reimbursed Flight Centre”, as being authorised by Ms Simpson to pay Flight Centre for a travel reimbursement.[49]  Mr Sherar said it was possible that the incorrect account details could have been keyed in such that this transfer was a mistake, rather than being a deliberate unauthorised transaction.[50]

Senior Constable Grigalius

  1. [29]
    Senior Constable Grigalius, the investigating officer, gave evidence in relation to the police investigation, including search warrants executed to obtain the appellant’s bank statements.  In cross examination, he accepted that he did not seek supporting documentation sourced from business records used by Ms Simpson and Mr Sherar to prepare the spreadsheet of transactions provided to him.[51]

Admissions

  1. [30]
    Admissions were made at the conclusion of the Crown case, including procedural matters such as the legal status of Bazaar and the dates and particulars of the appellant’s employment with Bazaar, as well as relevant particulars of the appellant’s bank accounts.[52]

The defence evidence

  1. [31]
    The appellant gave evidence and called as witnesses, Demi Ancrum (her daughter), Christine Billett (her friend) and Ashlee Leonard (her friend’s daughter).
  2. [32]
    The defence case was that Ms Simpson authorised the appellant to make the transfers the subject of counts 1 and 4 for various reasons, including payments of a commission, loan amounts and wages in advance, particularly for circumstances of personal financial difficulty[53] and there was an honest claim of right.  As for count 3, the contention was that the transfer was not made deliberately, the appellant being unable to recall making that transfer.

The appellant’s evidence

  1. [33]
    The appellant gave evidence that when she started employment with Ms Simpson, the latter was operating as a sole trader and a close friendship developed between her family and the appellant.  The appellant was involved in assisting with the MYOB software and the transition to Xero which she was then able to access online from her home.  The appellant initially worked from a home office at her house in Kylee Crescent, Maroochydore (for about a year in 2011-2012) before moving to a house at Dalby Street in the same suburb from 2012 to 2014.  Then she moved to Gardak Street.[54]  John Blackmore and another employee also worked from the Dalby Street home office.[55]
  2. [34]
    The appellant said Ms Simpson authorised her to pay expenses associated with the business, such as invoices and food stall commissions and her own wages and she did not have to check these payments with her.[56]
  3. [35]
    She gave evidence of a specific occasion when Ms Simpson visited the Dalby Street house when her friend Christine Billet and Christine’s daughter, Ashlee, were also present.  Ms Simpson discussed the Soundwave Festival.[57]  The appellant gave evidence that Ms Simpson said “it would [be] the first time that we had a profit that year and that I could have a percentage of the profit at the end of the year – that I would be able to have a percentage of the profit at the end of the year”.[58]  When asked if there was any discussion as to the particular profit, the appellant said she believed that Ms Simpson said, “somewhere about 15 or 20 per cent and just to work it out, sort of based on, you know, how much the profit was, like reasonable – be reasonable about it”.[59]  Ms Simpson and she were excited and there was talk of a lot of money coming in that season and she was planning future events.[60]
  4. [36]
    The appellant said that there was another earlier occasion when the conversation came up:[61]

“The conversation had come up a little bit earlier, probably round December when [she] was still in Gardak Street and I had completed that season by myself and [Ms Simpson] had said it looks like, you know, the way the applications are coming in, that there would be a profit and to make up for doing the season by myself, that season, no staff were hired, that a percentage of the profit for the year would be a great bonus.”

  1. [37]
    The appellant was asked:[62]

“Now, did you ultimately - sorry, I'll rephrase that again. Were there any other occasions, other than those two that you've mentioned, that commissions were - - -?-- -That subject came up?

Yes?---I think - I think that it came up quite a few times and I know that I was – I know that John was aware of it, too.

And - - -?---John Blackmore.

Just to confirm, though, was he present - - -?---He was present to the conversation.

And do you have any recollection of what was said when he was present, by you or [Ms Simpson]?---Not word for word, no. Not word for word.

After, or at some point, did you make any calculations as to any commission?---At the end of the year, after reconciling paying the events, a profit and loss was done in the system.”

  1. [38]
    The appellant gave the following evidence in chief about calculating the commission:[63]

“At the end of the year, after reconciling paying the events, a profit and loss was done in the system.

And in the system, what system?---In the MYOB - in the Xero system. Xero. So Xero, at the end of the season, you can do a profit and loss report and then the commission was calculated on that profit and loss.

And just so, firstly, the court can understand, the end of the season, what do you mean by that reference?---Okay. So an event season would run from about August through to April, May and by the time we finalised chasing up outstanding moneys for stall holders or food vendors or - but the final accounting side of it in the system would be completed once we’d done the reconciliation on it. So we had the figures and then we would finalise chasing up all the cashflow. So basically around July - you know, somewhere between May and July we would have the final figures for the profit and loss for that season.

Now, you've spoken about the profit and the loss?---Yep.

What did you then do with respect to any calculations for a commission?---I entered a bill into the system and put it for - is that what you mean?

Yes, what did you do in that regard?---I created a bill in the system for that – for that commission, and I put the total amount of the profit for that season and I did it, I believe, I believe, off the top of my head, that it was 15 per cent and it was – I think it came to about $30,000.” (emphasis added)

  1. [39]
    The appellant was questioned about ex 6.[64]  It showed an entry of a “TOTAL” amount of $30,600 and listed multiple entries:[65]

“And can you just confirm, what was it that you entered – or how did you enter these details?---There were – the commission was paid in part increments, because [Ms Simpson] and I had had the discussion that that would be happening, and that I would be able to be paid that commission. So there was never a conversation with her at all about it not happening.

HIS HONOUR: I’m sorry, I just want to clarify this. When you say that the commission had been paid in increments, are you saying there was a conversation about - - -?---There was a conversation with - - -

- - - specifically, about that?---Yes.

You might like to lead that conversation, Ms Hurley?---Yes.

MS HURLEY: How the conversation – sorry – how the amounts were to be paid?---There was no discussion with [Ms Simpson] about how the amounts were supposed to be paid.

Okay. So just to clarify, what had you meant by what you were saying before about paying things in increments?---We had agreed – well, she had agreed that I would be paid a commission for the percentage of profit for that season.

Okay. So just to clarify, again - - -?---I’m confused about the question. I’m sorry.

HIS HONOUR: Well, my question was, you said that you had a conversation that the commission was to be paid in increments and that [Ms Simpson] and I had a discussion that – about something. What I was asking you was, was the discussion about the commission being paid in increments?---I’m sorry, I misunderstood the question. Yes, that’s correct.

Well – all right. Well, can you tell us about that discussion, please?--- Well - - -

So can you tell the court about that discussion about increments?---Well, I’d said to [Ms Simpson], ‘Would it be okay to pay it in increments?’

And do you remember anything else about that – what was said?---No, not really.

And by ‘not really’, what do you mean?---Well, it was just – it was the same conversation, and I said, ‘Would you be okay with me paying it in part payments or increments?’ And she said ‘yes’. And we just went about doing what we do.” (emphasis added)

  1. [40]
    The appellant recalled that this conversation took place around December in her house in Kylee Crescent with only herself and Ms Simpson present.[66]  She was asked whether she recalled anything distinctly as to Ms Simpson’s responses about any commission and replied:[67]

“Yeah, that would be fine. Is that what you mean?

So what you said and what she said, if you can try and remember?---She – she said that there would – we were doing very well. And that we would be making a profit for the year. And that there’d be – that I could be paid a percentage as a commission. And I said to her, ‘Well, would it be okay to get that in part payments and instalments?’ And she said, ‘Yes, that would be fine.’ And she – she was fine with it.

Just to clarify though, did you ever discuss the specific amounts – increments?---No, I’m sorry. I’m – I’m confused about what you’re asking me. …

So you’ve indicated that you had a conversation - - -?---Yes.

- - - at the first house - - -?---Kylee Crescent.

- - - where you mentioned the issue of increments?---Yes.

Okay. At any point - - -?---Yes.

And did you discuss that with her, the specific numbers - - -?---No.

- - - or how you would split up the increments?---No – no. I’m sorry. No, I was confused. No, there was no discussion of how that would be – or – or any amounts of increments to be applied to the bill. No, there was no discussion of that.

And using as one example the 22nd of December 2012, the figure of $2000?---Yes.

In relation to the partial payments - - -?---Yes.

- - - how did you arrive at the various figures, in particular, on this occasion of $2000?---How did – how did - - -

How did you work out what payments to make?---How did I work out the part payments?

Yes?---How did I work out to how to apply them, or how did I - - -

Choose the figure.

HIS HONOUR: Perhaps we could put it is this way - - -?---I’m confused.

Why was – that was a payment which was made to you, was it?---Yes.

Of $2000, at that time?---Yes – yes.

Can you explain why it was an amount of $2000? How did that come about? That’s what you’re being asked?---Because it had already been agreed that there would be a commission percentage profit bonus. It was very - - -

Yes, you’ve said that, but you’ve also said there was no agreement as to any particular amount. So how did it come about – a particular amount was paid on this occasion, wasn’t it?---You mean, how did I calculate how mu – because we could tell by the system how much, by getting a report. Is this what you mean? How did I know what could be paid?

It’s even before that. How – what was the process by which a figure of $2000 was arrived at; that’s what I’m asking you to explain?---What was the process. Okay. So we were both aware that there was going to be a profit in 2013. We were both aware that there’d be a commission on that profit of roughly 15 to 20 per cent. And there – we could get a report from the system and we could see by the number of applications that were coming into the system, and we could see by the amount of money that was going on that it would be somewhere in the vicinity of over $200,000. So that’s how I arrived at - - -

MS HURLEY: Perhaps, one other way of asking you is - - -?---I’m – maybe I don’t understand the question.

- - - do you recognise this – the list of different payments?---Yes.

So why on one time – and I think, this might help – there’s a $2000 and, then, another time, you chose a different amount. So one time you chose the partial payment of $2000?---Yes.

And another time you chose a partial payment of $482.50?---Okay. These were amounts that were paid during that time period that I applied to the commission. There was no – there was no rational reason to the amounts. I’m not sure I understand the question.

Now, just going – perhaps moving down right to the end – so the 5th of September - - -?---Yes.

- - - 2013?---Yes.

At that point – so on the 5th of September two thousand and – sorry – thirteen, I should say - - -?---Yes.

- - - how did you decide a figure of five thousand, se – sorry – six thousand – I can’t read that – 6715?---Okay. So – so you can’t reconcile the total amount that’s owed until you have the final figure. So you can get an – an estimation of what the profit will be, but you can’t know for sure. So that amount was the final balance that – like, going on the – the guesstimation – [Ms Simpson] and I guesstimated would be about 200,000. Am – am I not making any sense?

So just the – when was it that that – the final figure with respect to these partial payments was locked in?---When was the final figure locked in?

Yes. The total figure – when was that - - -?---The - - -

- - - found out?---The bi – the bill itself was created in May. There was a lot more clarity about what the amount would be by then, and then those payments were applied to that bill.

May of what year?---I believe it would have been May 2013 – somewhere around then - - -

And the – I’ll just - - -?--- - - - because the – because the season finishes about April, so we know we’ve got our all.

Now, if I may just ask you about, firstly, the right side of things - - -?---Yes.

- - - at the top. It says ‘view bill’. What - - -?---Yes.

What is that a reference to on this particular printout?---So if you click on that, it will bring up a bill for those payments.

And by ‘bill for - - -’?---For - - -

‘- - - those payments’ - - -?---For those amounts apply.

Was it one or more bills?---One bill.

And the left-hand side, under the date and then the due date – what do they relate to?---On the left-hand side, date - - -

Just - - -?--- - - - and due date. Okay.

- - - those ones?---So the system generates that itself. A lot of the time when you create a bill – so this bill was created on the 29th of May, and it’s just automatically said, well, the amount’s due by that date. So you can cha – you can change a bill’s due date. Like, you can make it seven days or 14 days or 21 days.

And does that have any correlation to when the bill was generated or uploaded, or something like that?---No, that’s just letting – that’s just letting – whoever looks at it knows that that bill was actually created on that date.

And in relation to the partial payments listed - - -?---Yes.

- - - so the various - - -?---Yes.

- - - different amounts, we’ve seen, for example – and I’ll put the first page back on – the date of the 24th of December - - -?---Yes.

- - - 2012?---Yes.

Was there anything specific in relation to the dates when the transaction occurred?---Not that I remember, no.

… Now, there appears to be a history and notes reference – I’m just pointing to it – which is in bold, and there seems to be some type of log - - -?---Yeah.

And the user being Bazaar Marketing - - -?---Yeah.

Does that assist as to who inputted any of these details anywhere in the system?---I believe that that's my login, from what I understand, yes

Now, at times there's references to - there is a number amount due for this bill?---Yep.

How was that generated or how did the system - how did that come to be?---So, what does that say there? I'm sorry, I can't - - -

So at the end of, for example, ‘Payment made to commission on’ - - -?---’11th of January’.

- - - ‘… of January’, a year - - -?---I must - well, maybe I created that bill earlier. I don't know, because that doesn't make sense to me. If it says the payment was made on the 11th of January and the bill was created in May, that doesn't make sense to me.

And just down the bottom again, are you familiar at all with what the created and approved references mean?---Yep. That means I created that bill on the 28th of May and it was approved on the same day.

And the approved - - -?---And so - - -

- - - what's that in the system? Like, what does that signify?---That means it's been approved. It's been authorised.” (emphasis added)

  1. [41]
    The appellant was asked about the amount of $4,435 paid to her credit card (count 3) and said that she had a “vague memory” of a problem with Ms Simpson’s travel and that she got a call from her that “she needed to have Flight Centre paid and her credit card wasn’t working”.[68]  As to how the payment got onto her credit card she said that “I’d be lying if I said that I remember doing that. I don’t remember doing that – like how that got on my credit card”.[69]
  2. [42]
    The appellant said that, after her redundancy in 2015 because of Bazaar’s financial situation, she still did some work for Ms Simpson as a contractor and Ms Simpson told her that she could pay herself whatever hours she worked.[70]
  3. [43]
    She ended up living in Melbourne.  At one stage she needed financial help to get her daughter Chalcei home from America and phoned Ms Simpson crying.[71]  Ms Simpson offered to lend her the money which she did and as the appellant and her daughter also needed accommodation, the appellant offered that they could stay with her.  During that period, she did not pay rent but would help with household work and look after Ms Simpson’s children and do the bookkeeping.[72]
  4. [44]
    The appellant gave evidence of financial assistance given to her by Ms Simpson on prior occasions when she was living on the Sunshine Coast.[73]  She said that Ms Simpson had always offered that if the appellant was in a tough period, that as long as she worked or repaid the money that it was okay to transfer between her accounts, being her business to the appellant’s personal account.[74]

“So basically, if I had tough times, financially, on a personal level, that that – it was my understanding that – that the agreement was that, as long as I worked, those – to put that money to those hours or repaid it – the – she appro – she – she approved that. She authorised that.”

  1. [45]
    The appellant called this transfer of money to herself on the basis it was repaid later, a “wage advance type situation”:[75]

“And just to clarify, again, you said as long as you worked – so put that money to those hours?---Yeah, so like - - -

What do you mean?--- So like, if – if I was in difficulty or tough times financially. So it might be like a – a wage advance type situation. And then, future work, that money would go from the suspense account to apply it to that – those work hours.”

  1. [46]
    The appellant denied that she agreed with Ms Simpson that she had stolen from Bazaar, nor that she transferred an amount of $3,500 into an account associated with Ms Simpson, nor that she wrote the accompanying comment.  The appellant said the payment was made by a friend, Tony Pinset, who was aware how upset she was at the time and was aware of her relationship with Ms Simpson.[76]  The appellant said she agreed with Ms Simpson that she had taken money from the accounts but did not agree that it was stealing.[77]

The appellant’s cross examination evidence

  1. [47]
    In cross examination, the appellant agreed that she was “hugely unsupervised” and Ms Simpson did a lot of travelling.  The appellant accepted that there was a conversation in 2012 about the appellant using her Dalby Street house for a home office and paying herself $50 a week for office rental.[78]
  2. [48]
    The appellant was asked about the process of charging commissions and said that when Bazaar charged commissions, an invoice would be usually created.  She was asked whether she created an invoice for her “commission” and responded that she created a bill.  The appellant maintained that an invoice and a bill were the same and was further cross examined as follows:[79]

“And in relation to the calculation that you made in Xero for your commission- - -?---Yep.

There was no separate document that was an invoice?---I don’t believe there was – or there could have been; I could have done a separate document as an invoice and uploaded it, but I can’t recall if I did that or I didn’t do that.

Okay. And if I suggest to you that there’s no invoice uploaded in relation to that commission bill, would you accept that?---Well, invoices – I would accept that there might not be one there. Yes.

Okay. And if there was an invoice, that was never provided to [Ms Simpson]?---Directly or indirectly?

Well, what do you mean by “indirectly”? How can you indirectly - - -?---Like did I physically give [Ms Simpson] an invoice?

Did you in any way bring an invoice to [Ms Simpson’s] attention in relation to that payment?---Not in relation to that particular payment. No.” (emphasis added)

  1. [49]
    The appellant was also cross examined as to whether she ever discussed “the final figure” of her calculation of her own commission with Ms Simpson and replied that she “sent her the profit and loss figure” which “would have been sent as a report” and Ms Simpson “never came back to me with a discussion”.[80]  The report was indicated to be the final balance of the end of year report but the appellant accepted that it was not in relation to the profits for the entire year but just the profit and loss “at that point in time”.[81]  She accepted the proposition that it was not a calculation of her commission on that profit and loss, but stated that “it was [her] understanding that … [she] had to work that out and just take care of whatever needed to be taken care of”.[82]
  2. [50]
    The appellant also added in cross examination for the first time that the agreement with Ms Simpson was that a commission bonus would be paid, not only to her but “anyone that was employed in the company, if the company turned a profit” and that that was “verbally expressed and conveyed by [Ms Simpson] herself”.[83]  The appellant said that that conversation occurred “probably about the first year” she started in the business (but then thought it was probably a year later in 2009 by which time their relationship had become quite personable and they were like “an extended family”), but then said that she was told, “If the business turns a profit, you’ll get a bonus commission”.[84]
  3. [51]
    The appellant also gave, in cross examination, evidence about raising the issue of a commission in 2012 and 2013 as follows:[85]

“I cannot remember the details of the conversation, but [Ms Simpson] was excited, ‘We’re going to make a profit. We’ve never made a profit before; you’ll be able to have a bonus commission. You work it out.’ Is how it was said to me. There was no sit-down, formal conversation or arrangement – I don’t know what to - - -

So – no, sorry – there was no formal arrangement. So it’s essentially a very vague agreement. Would you agree?---Well, I don’t – I don’t know that - - -

You don’t know how - - -?--- - - - I’d agree with that, because that’s how it was with everything that had to be paid or done. I mean - - -

But you didn’t know how much you were supposed to be calculating, or what - - -?---Well, she said a percentage of the profit.

And which was?---And she said 15 to 20 per cent and, within reason – ‘Within reason’ were her words - - -

Yes. And what did you understand ‘within reason’ to be?---And so – well, 15 per cent seems reasonable to me.

And did you think that that may change consider – depending on what the profit was?---Well, no. It never occurred to me that there was a problem. It never occurred to me that it would be a problem.” (emphasis added)

  1. [52]
    The appellant said that Mr Blackmore was present for the conversation with Ms Simpson in 2012 or 2013 and that it happened at Dalby Street,[86] but when challenged about that, gave the following cross examination evidence:[87]

“Ms Scofield, is it the case that yesterday you said that conversation happened at Kylee Crescent?---I was living in Kylee Crescent towards the end of 2012. I don’t remember yesterday saying that I had that conversation with John and [Ms Simpson] at Kylee Crescent.

Okay?---I know that I’ve had conversations with [Ms Simpson] at Kylee Crescent.

About commissions?---About a bonus commission, yes.

And what was that conversation?---It’s just a part of our conversation we’re talking about business. I can’t recall word for word exactly what [Ms Simpson] said to me. I can’t recall exactly – I would be lying I if I said to you she said this, this, this and this.”

  1. [53]
    The appellant’s evidence was then clarified as being that she had a conversation with Ms Simpson in 2009 and another discussion about commissions with her at Kylee Crescent, which she conceded was not in the presence of Mr Blackmore, and that there was another conversation with Ms Simpson and Mr Blackmore at the Dalby Street office.  The appellant was questioned about the latter conversation:[88]

“And does that conversation occur before or after the conversation where the 15 to 20 per cent was discussed?---It’s – does the conversation occur before or after what is discussed?

When you have the conversation where you’ve said that [Ms Simpson] discussed a 15 to 20 per cent rate?---Yes.

Did that conversation occur before or after the discussion with John?---John was privy to that conversation. John was there in that conversation. Is that what - - -.”

  1. [54]
    The appellant then agreed that at the point that she started paying herself commissions, she had not discussed what the rate of commission would be but added that this was “because we could future project that there would be an amount” but then maintained that she did not set her own commission percentage.[89]  The appellant said that she was making part payments towards a commission although she did not have a final figure and later the percentage was discussed.[90]
  2. [55]
    The appellant was cross examined about the payment of her credit card, which had a limit of approximately was $5,500.[91]  She said she could not remember on what basis she was paying off her card.  Sometimes it was by weekly, fortnightly or monthly payments.  She agreed that she would sometimes arrange for her wages to be paid directly to her personal credit card.  She accepted that, while she was paying the card off in varying increments, she did not notice that the $4,435 had been paid into her credit card account, although that amount almost paid off all of her credit card debt.
  3. [56]
    The appellant agreed that, if the $4,435 was allocated to travel in Xero and to be paid to Ms Simpson’s account, there should have been a reconciliation process in respect of that account.  In this regard, she said, “Yes and this is an interesting question because that’s why I think it sat there for three months because I couldn’t figure out which of her accounts that money went into”.[92]  She thought she had paid it from her card but realised that she had not.  The appellant said that the expense did not appear on Ms Simpson’s credit card account, which she could view through the internal accounting system.  The appellant said she “could not remember the details of this whole thing” but that that it was not deliberate.  There were a lot of transactions that went backwards and forwards and sometimes it was really confusing and she made mistakes.[93]  She agreed that the Xero reference showed that there was debit to a credit card but said it could have been another employee, Sharon, who did the reconciliation.[94]

Ms Billett

  1. [57]
    Ms Billett also gave evidence that she was a long standing friend of the appellant.  She came across Ms Simpson, on two occasions, while visiting the appellant at her Dalby Street house.  She said it was a long time ago, about five or six years.  On the first occasion, she was not introduced to Ms Simpson but she was on the second occasion, a few months later.[95]  She knew Ms Simpson was the appellant’s employer as the appellant had spoken of her.  On the first occasion, Ms Billett’s daughter was also present at one stage.  Ms Billet recalled that Ms Simpson and the appellant “talked about a profit they were going to make that year”.[96]  She recalled Ms Simpson saying that “she thought she was going to make a $200,000 profit and that [the appellant] could have a 15 per cent commission from that”.[97]  She recalled that they both seemed happy and excited.[98]  Ms Billett did not recall any discussion as to how the percentage was to be paid, only that “there was going to be a profit made and [the appellant] was going to get a 15 per cent commission from that”.[99]
  2. [58]
    Ms Billet also gave evidence of the appellant’s good reputation in the community on the Sunshine Coast and generally.[100]  In cross examination, Ms Billett maintained that in the conversation between Ms Simpson and the appellant, there was reference to the figure of $200,000 and 15 per cent.[101]  There was general discussion about a commission that may be paid and Ms Simpson was saying that the appellant “was helping to make the $200,000 profit, that that’s what they think that they were going to do, and that [the appellant] could have a 15 per cent commission of that”.[102]

Ms Leonard

  1. [59]
    Ms Leonard’s evidence was that she had known the appellant and her children for her whole life.  She was at the appellant’s house in Maroochydore on an occasion when Ms Simpson visited.  She placed this event in 2012 or 2013 but could not give an exact date.  She overheard the appellant and Ms Simpson talking about a music festival which she thought was the Soundwave festival.[103]  She heard Ms Simpson say to the appellant that:[104]

“… she wanted her to go and work out an amount for her to then pay herself a – a profit of – what’s – oh my God, sorry – the wording. Sorry, I’m having a mind blank. I – not – it’s a profit but – a percentage. Sorry. So it was a percentage of the profit and she said something about all the extra work, for all – all the work that she had been doing. I didn’t hear – yeah – too much else.”

  1. [60]
    Ms Leonard said her mother was there and she remembered her walking away as she was “funny about talking business finances”.[105]  She disagreed with the suggestion put to her in cross examination that the conversation never took place.[106]

Ms Ancrum

  1. [61]
    Ms Ancrum said her sister, Chalcei, was currently overseas.  She gave evidence that she worked for Ms Simpson in 2009 and 2010.  She stated that she had heard Ms Simpson say to the appellant that she “could pay herself overtime or for any expenses as required”.[107]  She also gave evidence that her mother worked a lot of overtime during her employment.[108]

Ground 1

The relevant principles

  1. [62]
    The appellant contended that the verdict was unreasonable and not supported by the evidence on the basis that “there was considerable evidence before the jury which should have left them in some doubt as to the dishonesty of the appellant’s actions”.[109]  In R v TAI,[110] I set out the relevant principles applicable to appeals made on the basis that a verdict of guilty is unreasonable or otherwise unsupportable having regard to the evidence as follows:[111]

“The approach of an appellate court where such a ground is raised may be summarised having regard to the High Court authorities as follows:

  1. The question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty: M v The Queen[112] and MFA v The Queen.[113]
  1. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. The boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way: R v Baden Clay.[114]
  1. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred: MFA v The Queen.[115]
  1. If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence: M v The Queen[116] and MFA v The Queen.[117]
  1. The ultimate question for the appellate court must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: R v Baden-Clay.[118] In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality: Morris v The Queen[119] and SKA v The Queen.[120] In doing so, the Court must disclose the manner of that assessment: GAX v The Queen.[121]
  1. [63]
    Further, as the High Court recently stated in Pell v The Queen:[122]

“Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.”

Unreasonable verdict?

Submissions

  1. [64]
    On behalf of the appellant, it was emphasised that the appellant’s evidence concerning the payment of commission to her was corroborated by the two defence witnesses, Ms Billet and Ms Leonard, and, by the description recorded in ex 6 for a transaction in the sum of $15,000 on 29 May 2013 that was described as “Commission Event/Festival Costs”.[123]  That was relied on as a “contemporaneous” record, created in 2012 for the period 23 November 2012 to 29 May 2013, as being generally corroborative of the appellant’s evidence to the effect that Ms Simpson told her that she could take a 15 per cent commission against an expected profit of $200,000.  It was contended that this evidence should have raised considerable doubt as to the credibility of Ms Simpson, who had also originally told police that she had never loaned the appellant any money, but subsequently conceded that she had in fact done this on a number of occasions.[124] These were said to be critical features of the evidence which would lead this Court to conclude that the jury should have entertained a reasonable doubt as to the dishonesty of the appellant.
  2. [65]
    The respondent, on the other hand, submitted that as to counts 1 and 4, the jury was able to reject the appellant’s evidence as to the alleged authority or alleged loans to her by Ms Simpson and/or her business.  She had no real plausible explanation for some of the recording of the transactions in the process of reconciliation.[125]  The respondent submitted that equally, the appellant’s explanation for the accidental transfer (count 3) to her account was poor and the jury were entitled to be satisfied beyond reasonable doubt of guilt.[126]
  3. [66]
    The respondent submitted that the corroborative evidence of the conversation between the appellant and Ms Simpson was not a feature that was fatal to conviction.  That conversation was said to have taken place at the address occupied by the appellant at Dalby Street.  She conceded that she did not have specific authorisation - she blamed the chaos of the working environment on that informal process.[127]  As to the corroboration of the conversation, the appellant’s friend, Ms Billett, gave evidence that Ms Simpson openly discussed that there was going to be a profit and that the appellant was going to get 15 per cent from that.[128]  She later accepted in cross examination that the conversation was about whether the commission may be paid.[129]  Ms Leonard’s recollection was less precise but she recalled a profit and percentage conversation.[130]
  4. [67]
    It was submitted that, if there was such a commission conversation, then that, in and of itself, did not mean that the jury could not be satisfied of the offences; the jury may have been left with a view that the terms were nevertheless uncertain and that her use of the credits was still dishonest in circumstances where she had no specific authority.  The appellant placed Mr Blackmore as present at a particular conversation which she said was at one address and then at another, and that Mr Blackmore was present when commission bonuses were raised.[131]  She later stated she did not know whether or not a commission percentage was discussed in that conversation but accepted that she started paying herself a commission thereafter.[132]
  5. [68]
    The appellant’s creation of the document said to have been consistent with the conversation is equally consistent with her intended concealment of her dishonesty, particularly given that her evidence was illogical and unconvincing.
  6. [69]
    There was, however, real doubt about the conversation having taken place.  The transfers to her account were consistent with her indiscriminate use of another’s business funds for her own expenses and that she took money when she needed it.  This was an objective feature when one looks at Appendix 1, which was compiled from records readily available to the jury for inspection.
  7. [70]
    The appellant accepted that there “was no discussion with [Ms Simpson] about how the amounts were supposed to be paid”.[133]  The appellant said that the discussion about payment in part increments was that she asked Ms Simpson whether it would be okay to pay the commission in increments.[134]  However, the appellant said there was “no discussion” with Ms Simpson regarding the specific details around these instalments or the amount of each instalment.[135]  There was no rational reason for the difference in the partial payments and there was no way to reconcile the total amount of commission until there was a final balance and, until then, Ms Simpson and the appellant worked on the basis of a “guesstimation”.[136]

Conclusion

  1. [71]
    The trial judge gave appropriate directions as to the onus of proof on the prosecution to prove the elements of the offences which were also the subject of conventional directions.  His Honour also correctly directed the jury as to the defence of honest claim of right and the onus was on the prosecution of disproving that defence.
  2. [72]
    I agree with the respondent’s submissions.  In my view, having reviewed the evidence as a whole and giving due regard to the jury’s advantage in hearing and seeing the witnesses, it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt.  As the respondent submitted, central to the case was the various assessment of witnesses and the way they presented, which is very much in the province of the jury.
  3. [73]
    Except for count 3, there was no denial by the appellant that the transfers were deliberately made.  The jury was entitled to be satisfied beyond reasonable doubt that the appellant acted dishonestly in transferring the bank credits the subject of counts 1 and 4 and that the Crown had negated an honest claim of right.
  4. [74]
    Ms Simpson gave coherent and consistent evidence, including a plausible explanation for updating her police statement.  She was clear that Christmas bonuses were paid and that she gave the appellant loans but was adamant that she did not authorise the payment of credits nor of commissions to the appellant.
  5. [75]
    The appellant, on the other hand, gave vague and conflicting evidence on important matters, including the details of the conversation relied upon as authorising the payments, how many conversations had taken place, where they had taken place and who was present.  The appellant accepted that there was “no formal arrangement” as to the payment of commission.  The appellant also accepted that there was no discussion about how the actual amounts were to be paid and that she worked on the basis of a “guesstimation”.  The appellant’s evidence as to how the commission was to be calculated was confusing.  Her evidence was that it was variously to be a percentage of the profit, 15 to 20 per cent, “within reason” and a “wage advance type situation”.  Her evidence as to Mr Blackmore’s presence at a conversation about the paying of a commission, in particular, was significantly contradictory.  She accepted that she never informed Ms Simpson of her actual calculation of commission, nor sought her approval for payment of any amount.  Her explanation that, as she attended to payment of expenses and the like without checking back with Ms Simpson, she understood that she could pay commissions to herself on the basis of the conversations about which she gave evidence, was a matter for the jury to consider.  The document produced by the appellant and tendered as ex 6 was accepted by the appellant as not being an invoice or bill that was provided to Ms Simpson.
  6. [76]
    Nor was the evidence of the defence witnesses as to a conversation taking place with Ms Simpson about paying a percentage of profit or a commission, compelling.  The jury was entitled to find that the evidence of the defence witnesses was vague and unhelpful and not corroborative of the case as advanced by the appellant.  The evidence relied upon as being corroborative, even at its highest, was not such as to raise a real possibility that Ms Simpson authorised the appellant to pay herself a particular portion of the profits of the business, let alone that a specific amount was authorised.  The evidence of Ms Billett was that Ms Simpson “thought” there was going to be a $200,000 profit and that the appellant “was going to get 15 per cent from that”.  Ms Leonard’s evidence was that Ms Simpson wanted the appellant to work out an amount being a percentage of the profit.
  7. [77]
    The jury were entitled to consider the explanation provided by the appellant as to how the amount, the subject of count 3, was paid into her Visa account as implausible and unconvincing.  It concerned a large amount that the appellant claimed not to have noticed on her account and claimed to have taken three months to identify, although the number of her account was evident on the Xero records.
  8. [78]
    There is no substance to this ground.

Ground 2: Error in failure to give circumstantial evidence direction?

  1. [79]
    The appellant’s second ground of complaint was that a circumstantial evidence direction was required in the present case in respect of count 3, given that the prosecution case was entirely circumstantial and matters in the appellant’s evidence (that she did not recall transferring the amount of $4,435 into her own account[137]) raised a hypothesis consistent with her innocence (that the transfer of funds was unintentional).  It was accordingly contended that, there being no direct evidence as to the question of dishonesty, in order to convict, the jury had to draw an inference both that the appellant intentionally transferred the funds and that she did so dishonestly.
  2. [80]
    The failure to give a direction about circumstantial evidence[138] rendered the summing up inadequate and resulted in a miscarriage of justice.  The appellant contended that the trial judge ought to have given the customary direction as set out in the Supreme and District Courts Criminal Directions Benchbook, directing that the existence of a reasonable possibility consistent with innocence would result in an acquittal.  The Benchbook direction states:[139]

“Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly: typically, when the witness testifies about something which that witness personally saw, or heard. Both direct and circumstantial evidence are to be considered.

To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.

If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.”

  1. [81]
    The appellant placed particular reliance on the following observations of Dawson J in Shepherd:[140]

“Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given.”

  1. [82]
    Reference was also made to R v Dolley,[141] where de Jersey CJ found that such a direction was “but a logical elaboration upon the Crown’s obligation to establish guilt” and:

“Certainly that is an essential direction where what is sought to be inferred involves a matrix of facts and circumstances, as, for example, how or whether a murder has been committed in a case where no body has been found. That is but one example, but in a case like this, where the fact to be inferred is itself but one element of the offence, a direction that, in order to convict, that fact must be inferred beyond reasonable doubt, adequately directs the jury to the test to be applied, because obviously, if the inference is drawn beyond reasonable doubt, then, ipso facto, all other reasonable possibilities must have been excluded.”

  1. [83]
    Reference was made to R v Sharp,[142] where in the absence of a circumstantial evidence direction, Fraser JA stated the question for determination as “whether, in the particular circumstances of this case, and having regard to other aspects of the summing up, the failure to give the direction resulted in the summing up as a whole being inadequate”.[143]  Support was drawn from R v Reynolds,[144] where Morrison JA determined that question in favour of the appellant in considering whether, and concluding that, the giving of the direction “would have made a difference”.[145]
  2. [84]
    As the commentary to the relevant Benchbook direction explains,[146] three special directions are given in substantially circumstantial cases, “as to drawing inferences”,[147] that “guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances”[148] and “that if there is any reasonable hypothesis consistent with innocence, the jury’s duty is to acquit”.[149]  As it sets out:

“The second and third are but different ways of conveying, or emphasising, the meaning of ‘beyond reasonable doubt’.[150] So while such directions may be helpful ‘in many, if not most, cases involving substantial circumstantial evidence’, ‘there is no invariable rule of practice’ that such directions ‘should be given in every case involving circumstantial evidence’.[151]

  1. [85]
    The trial judge made it clear to the jury that, in relation to count 3, the appellant disputed having deliberately made the transfer and in that regard reminded the jury of the accountant’s evidence.[152]  His Honour identified the real issue as follows:[153]

“The real issue in relation to count 3 is, was it done by the [appellant] deliberately? And that is the factual issue in relation to the second element, the element of dishonesty. If you were satisfied that she did deliberately transfer it into her account without authority, then you might not have – then you have to decide whether you accept that that was dishonest according to the standards of ordinary honest people in the community.”

  1. [86]
    His Honour directed the jury that they were required to consider the objective test of dishonesty.  The jury were also properly directed as to the onus of proof borne by the prosecution and the process of drawing inferences at the beginning of the summing up.[154]
  2. [87]
    The respondent argued that the case against the appellant was for the most part an acceptance by her of the transfers of credits.  At one stage, she gave evidence attesting to some vague memory as to having to charge back for flights through Flight Centre.  Her later transfers to the same credit card sat well with an irresistible conclusion that this was her transfer.  Her absence of memory as to the same could be slotted into the category of her unconvincing testimony.  It may be accepted that this was not a case involving significant circumstantial evidence in respect of count 3.
  3. [88]
    No redirection was sought by counsel, nor was any complaint made as to the adequacy of the directions given.  Nor would such a direction have made any difference.  As the respondent argued, it would have attracted attention to other matters raised by the appellant’s evidence which did not assist the appellant such as those that pointed to the appellant being the user of the computer system; that it was her credit card; that she was low on funds; that she later transferred other credits to that credit card; and that she was an excessive user of her credit card but failed to notice a large payment that was almost the full amount of her credit limit.
  4. [89]
    This ground should also be dismissed.

Order

  1. [90]
    I would order that the appeal against conviction be dismissed.
  2. [91]
    McMURDO JA:  I agree with Philippides JA.

Appendix 1 - Table of the relevant transactions as corresponding to the counts on the indictment

COUNT

DATE

TRANSACTION DETAIL

CREDITS ATTRIBUTED TO

EVIDENCE RELEVANT TO SPECIFIC TRANSACTION

1

24th of December 2012

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $2000

Referenced as “Visa” on both accounts

By 26th of December 2012, the appellant’s bank account balance is down to $151.09, at which time she receives her next wage

Reconciliation document shows this entry as being recorded as “Payment commission” (AR1067, Volume 4)

Ms. Simpson gave evidence that “Visa” was normally a reference to her gold card (AR147, Volume 2); this payment was not authorised (AR148, Volume 2)

Ms. Simpson gave evidence that there was no commission agreement between her and the appellant at that time (AR163, Volume 2)

The appellant gave evidence that the reference to “visa” was in fact a reference to a commission (AR325-326, Volume 2)

1

01st May 2013

From Suncorp account Bazaar Marketing Pty Ltd”, number 452314029 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $100

Referenced as “tfr btw accs” on both accounts

Appellant’s bank balance at the time of transfer was $63.33

Ms. Simpson gave evidence that this reference is usually for transfers between one of the five accounts (AR148, Volume 2); this payment was not authorised (AR149, Volume 2)

1

10th May 2013

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314029 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $100

Appellant’s bank balance at the time of transfer was $188.27

Complainant’s business account balance was $1168.18

Ms. Simpson gave evidence that this payment was not authorised (AR149, Volume 2)

1

29th May 2013

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $200

Referenced as “Btw accs” on both accounts

Appellant’s bank balance at the time of transfer was $27.62

Reconciliation document shows this entry as being recorded as “Payment commission” (AR1070, Volume 4)

Ms. Simpson gave evidence that she did not authorise this transaction (AR150, Volume 2)

The appellant had no real memory of this transaction but accepted that it had gone into being part of her commission (AR330, Volume 2)

1

29th May 2013

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $15000

Referenced as “commission” on both accounts

Appellant’s bank balance at the time of transfer was $48.52.

Expenditure from appellant’s account shows a combined amount of $4500 being sent to her personal credit card. The rest of the money was spent on various other expenses including rent; by August the appellant’s bank balance was $153.73

Reconciliation document shows this entry as being recorded as “Payment commission” (AR1071, Volume 4)

Ms. Simpson gave evidence that she did not authorise this transaction and that there was no commission agreement between them (AR150, Volume 2)

The appellant gave evidence that this amount was done as it was coming closer to reconciliation and accepted it did not occur to her to specifically raise it with the complainant (AR329, Volume 2)

1

05th September 2013

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 is a withdrawal of $76,715.

Referenced as “btw accs” on the appellant’s account

Appellant’s bank balance at the time of transfer was $254.06

Reconciliation document shows this entry as being “Payment commission” (AR1073, Volume 4)

Ms. Simpson gave evidence that whilst the appellant had authority to split payments, there was no authority to take this amount (AR151, Volume 2)

 

 

$70,000 is deposited into the complainant’s offset account.

$6715 is directly credited to the appellant’s Suncorp account 602455706 (address 38 Dalby Street).

$5000 is transferred to appellant’s personal credit card.

The appellant gave evidence that this figure was calculate based on the profit and loss report and her commission on that (AR332, Volume 2)

3

22nd December 2013

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $4435.

Appeal record book 1387 shows the last entry as “payment”.

There is evidence of significant expenditure on the credit card.

Reconciliation document shows this entry as being an internet transfer to a credit card and that it was spent by Lynda Simpson (AR1075, Volume 4)

It also records it as “Reimburse Fight Centre” (AR1076, Volume 4)

Ms. Simpson gave evidence that she did not authorise this transaction (AR152, Volume 2)

The appellant gave evidence that she had a vague memory of a problem with the complainant’s travel and that she was unable to use her credit card (AR270, Volume 2)

In cross-examination, she stated that she did not notice this amount having gone into her credit card (AR315, Volume 2); she searched for where this money ended up; she then thought she had paid it from her card but realised that she had not (AR318-319, Volume 2). She later stated that she was even uncertain as to whether or not she searched for this transaction at all (AR323, Volume 2).

4

01st November 2015

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314029 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $60

 

Ms. Simpson gave evidence that this was the time the appellant lived with her at her shed; she did not authorise the transaction (AR152, Volume 2)

See repayment figure of $415 (AR529, Volume 3); Ms. Simpson accepted that this may be the reimbursement figure for transactions from 1.11 to 3.11 (AR200, Volume 2)

The source of the money are two unknown cash deposits at Maleny (AR1284-1285, Volume 4)

The appellant gave evidence that this was either a wage advance or covering personal expenses in return for work or repayment (AR285, Volume 2)

4

02nd November 2015

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $30

 

Ms. Simpson gave evidence that she did not authorise this transaction (AR152, Volume 2)

See repayment figure of $415 (AR529, Volume 3); Ms. Simpson accepted that this may be the reimbursement figure for transactions from 1.11 to 3.11 (AR200, Volume 2)

The source of the money are two unknown cash deposits at Maleny (AR1284-1285, Volume 4)

The appellant gave evidence that this was either a wage advance or covering personal expenses in return for work or repayment (AR285, Volume 2)

4

03rd November 2015

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314223 to Credit Card in the name of the appellant with number 4392399000112429 a transfer of $175

Complainant’s business account shows only a balance of $175.43 prior to the withdrawal.

Appeal record book 1480 shows the entry as “payment”. At that stage the credit card had been overspent.

Ms. Simpson gave evidence that she did not authorise this transaction (AR153, Volume 2)

See repayment figure of $415 (AR529, Volume 3); Ms. Simpson accepted that this may be the reimbursement figure for transactions from 1.11 to 3.11 (AR200, Volume 2)

The source of the money are two unknown cash deposits at Maleny (AR1284-1285, Volume 4)

 

 

 

 

The appellant gave evidence that this was either a wage advance or covering personal expenses in return for work or repayment (AR285, Volume 2)

4

03rd November 2015

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314029 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $150

Appellant’s bank account then has an immediate transfer of

$160 to account number 453838471 with reference “Repayment”

Ms. Simpson gave evidence that she did not authorise this transaction (AR153, Volume 2)

See repayment figure of $415 (AR529, Volume 3); Ms. Simpson accepted that this may be the reimbursement figure for transactions from 1.11 to 3.11 (AR200, Volume 2)

The source of the money are two unknown cash deposits at Maleny (AR1284-1285, Volume 4)

4

13th November 2015

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $200

Appellant’s bank account balance was $166.91

Ms. Simpson gave evidence that she did not authorise this transaction (AR154, Volume 2)

The appellant gave evidence that this was possibly for personal expenses (AR286, Volume 2)

There is a transfer back of this amount from the appellant to the complainant business account with reference “repay” (AR1288, Volume 4).

The source of the money is a bank deposit at Maleny from an unknown source (AR1288, Volume 4)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

21st December 2015

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $300.

Significant credit card debt incurred

Four out of the six payments for that credit card cycle came from

this account

Ms. Simpson gave evidence that she did not authorise this transaction (AR154, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

23rd December 2015

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $300.

Significant credit card debt incurred

Four out of the six payments for that credit card cycle came from this account

Ms. Simpson gave evidence that she did not authorise this transaction (AR154, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

28th December 2015

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $200.

Significant credit card debt incurred

Four out of the six payments for that credit card cycle came from this account

Ms. Simpson gave evidence that she did not authorise this transaction (AR154, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

02nd January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $200.

Significant credit card debt incurred

Four out of the six payments for that credit card cycle came from this account

Ms. Simpson gave evidence that she did not authorise this transaction (AR158, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

05th January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $200.

Significant credit card debt incurred

First payment of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR158, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

05th January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $100.

Significant credit card debt incurred

Second payment of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR158, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

09th January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $200.

Significant credit card debt incurred

Fourth payment of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR158, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

14th January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $150.

Significant credit card debt incurred

Fifth payment of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR158-9, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

15th January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $100.

Significant credit card debt incurred

Sixth payment of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR159, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

19th January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $150.

Significant credit card debt incurred

Seventh payment of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR159, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

20th January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $150.

Significant credit card debt incurred

Eighth payment of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR159, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

23rd January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to appellant’s Suncorp account 602455706 (address 38 Dalby Street), an amount of $100

Appellant’s balance in account was $5.54

Ms. Simpson gave evidence that she did not authorise this transaction (AR159, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

26th January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $150.

Significant credit card debt incurred

Ninth payment of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR160, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

28th January 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $100.

Significant credit card debt incurred

Tenth and last payment of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR160, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

03rd February 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $200.

Significant credit card debt incurred

First of eight payments of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR160, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

05th February 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $200.

Significant credit card debt incurred

Second of eight payments of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR160, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

08th February 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $100.

Significant credit card debt incurred

Third of eight payments of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR160-1, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

09th February 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $200.

Significant credit card debt incurred

Fourth of eight payments of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR161, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

11th February 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $100.

Significant credit card debt incurred

Fifth of eight payments of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR161, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

15th February 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $200.

Significant credit card debt incurred

Sixth of eight payments of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR161, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

4

22nd February 2016

From Suncorp account “Bazaar Marketing Pty Ltd”, number 452314177 to Credit Card in the name of the appellant with number 4392399000112429 is a transfer of $300.

Significant credit card debt incurred

Seventh of eight payments of the month for this cycle

Ms. Simpson gave evidence that she did not authorise this transaction (AR161, Volume 2)

The appellant gave evidence that these were all loan agreements (AR347, Volume 2)

Footnotes

[1]A nolle prosequi was entered on the second day of trial with respect to a further count of fraud as an employee (count 2).

[2]AB2 at 140.

[3]AB2 at 129.

[4]AB2 at 136-137.

[5]AB2 at 138.

[6]AB2 at 136.

[7]AB2 at 168 and 193.

[8]AB2 at 135.

[9]AB2 at 129-130.

[10]AB2 at 131-132.

[11]AB2 at 133.

[12]AB2 at 138-139.

[13]AB2 at 180.

[14]AB2 at 142.

[15]AB2 at 142.32-39.

[16]AB2 at 143.

[17]AB2 at 169.30-34.

[18]AB2 at 168.

[19]AB2 at 163.

[20]AB2 at 168-169.

[21]AB2 at 170.41.

[22]AB2 at 171-172.

[23]AB2 at 151-152.

[24]AB2 at 163.10-36.

[25]AB2 at 173.

[26]AB2 at 173.37-38.

[27]AB2 at 174.

[28]AB2 at 174.25.

[29]AB2 at 174.27.

[30]AB2 at 174.

[31]AB2 at 175.

[32]AB2 at 179.

[33]AB2 at 183-184.

[34]AB2 at 191.

[35]AB2 at 186-187.

[36]AB2 at 193.41.  She said that she became involved with Soundwave in 2007 or 2008 to 2015: AB2 at 194.

[37]AB2 at 195.

[38]AB2 at 209.

[39]AB2 at 105, 109-110.

[40]AB2 at 110.

[41]AB2 at 107.

[42]AB2 at 107-108.

[43]AB2 at 220-221.

[44]AB2 at 221.

[45]AB2 at 222.

[46]AB2 at 236.

[47]AB2 at 233-234.

[48]AB2 at 234.

[49]AB2 at 236.

[50]AB2 at 236.

[51]AB2 at 240.

[52]AB2 at 247-248.

[53]See AB2 at 275.

[54]AB2 at 259.

[55]AB2 at 259.

[56]AB2 at 257; 298-299.

[57]AB2 at 261.

[58]AB2 at 262.2-5.

[59]AB2 at 262.8-10.

[60]AB2 at 262.

[61]AB2 at 262.34-39.

[62]AB2 at 262.43-263.

[63]AB2 at 263.10-36.

[64]AB4 at 1068.

[65]AB2 at 264.11-265.11.

[66]AB2 at 265.26-31.

[67]AB2 at 265.40-269.45.

[68]AB2 at 270.36-37.

[69]AB2 at 271.8-10.

[70]AB2 at 285.

[71]AB2 at 274.

[72]AB2 at 274.29-32.

[73]AB2 at 275.29-33.

[74]AB2 at 275.17-20.

[75]AB2 at 275.22-27.

[76]AB2 at 287-289.

[77]AB2 at 289.26-29.

[78]AB2 at 294-295.

[79]AB2 at 298.1-19.

[80]AB2 at 298.21-25.

[81]AB2 at 298.31.

[82]AB2 at 298.35-36.

[83] AB2 at 298.40-41.

[84]AB2 at 299.45.  The appellant stated that Ms Simpson had previously told her she could pay herself a bonus – it was at Christmas for $500: AB2 at 300.

[85]AB2 299.10-33.

[86]AB2 at 301.

[87]AB2 at 301.26-37.

[88]AB2 at 302.44-304.5.

[89]AB2 at 304.35.

[90]AB2 at 305.

[91]AB2 at 315.

[92]AB2 at 317.46-318.2.

[93]AB2 at 318-320.

[94]AB2 at 322-323.

[95]AB2 at 352-353.

[96]AB2 at 355.32-33.

[97]AB2 at 355.34-35.

[98]AB2 at 355.

[99]AB2 at 356.23-24.

[100]AB2 at 361.

[101]AB2 at 365.

[102]AB2 at 365.19-20.

[103]AB2 at 369.

[104]AB2 at 369.13-18.

[105]AB2 at 369.24.

[106]AB2 at 372.

[107]AB2 at 375.37-38.

[108]AB2 at 374-375.

[109]Appellant’s outline at [2].

[110][2018] QCA 282 at [37] (Morrison JA and Bowskill J agreeing).  See also: R v Mackay [2018] QCA 313 at [24] per Philippides JA (Holmes CJ and Henry J agreeing) and R v Manning [2020] QCA 14 at [44] per Brown J (Morrison and McMurdo JJA agreeing).

[111]Footnotes included from original.

[112][1994] HCA 63; (1994) 181 CLR 487 at 494-495.

[113][2002] HCA 53; (2002) 213 CLR 606 at 623.

[114][2016] HCA 35; (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487; MFA [2002] HCA 53; (2002) 213 CLR 606.

[115][2002] HCA 53; (2002) 213 CLR 606 at 623.

[116][1994] HCA 63; (1994) 181 CLR 487 at 494-495.

[117][2002] HCA 53; (2002) 213 CLR 606 at 623.

[118][2016] HCA 35; (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487; MFA [2002] HCA 53; (2002) 213 CLR 606.

[119][1987] HCA 50; (1987) 163 CLR 454 at 473.

[120][2011] HCA 13; (2011) 243 CLR 400 at 406.

[121][2017] HCA 25; (2017) 91 ALJR 698 at [25].

[122][2020] HCA 12 at [37].

[123]AB4 at 1153.  See also AB4 at 1510.

[124]AB2 at 142-143; 173-175.

[125]AB2 at 334-335.

[126]AB2 at 317-324.

[127]AB2 at 302.

[128]AB2 at 356.

[129]AB2 at 365.

[130]AB2 at 369.

[131]AB2 at 303.

[132]AB2 at 305.

[133]AB2 at 264.28-29.

[134]AB2 at 265.4-11.

[135]AB2 at 266.4-19.

[136]AB2 at 267.39.

[137]AB2 at 270-271.

[138]Shepherd v The Queen (1990) 170 CLR 573 per Dawson J at 578.

[139]Direction No 48.

[140]Shepherd at 578; see also Grant v The Queen (1975) 11 ALR 503 per Barwick CJ at 503.

[141]R v Dolley (2003) 138 A Crim R 346 at 349 (with whom McMurdo P and White J agreed).

[142][2012] QCA 342.

[143][2012] QCA 342 at [17], Muir JA and White JA agreeing.

[144][2013] QCA 338.

[145][2013] QCA 338 at [32]; Holmes JA (as her Honour then was) and North J held that the verdict of guilty was unreasonable and quashed the conviction without considering this point.

[146]Direction No. 48 at 48.1.

[147]See Summing-up, General, Primary Facts and Inferences, especially footnote 7.

[148]Shepherd v The Queen (1990) 170 CLR 573 at 578.  See also R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220 at [10], “where the Crown case rests either wholly or partly on circumstantial evidence, a no case submission is to be decided on the basis of such inferences that are reasonably open in support of the Crown case”.

[149]R v Perera [1986] 1 Qd R 211 at 217; R v Owen (1991) 56 SASR 397 at 406.

[150]R v Holman [1997] 1 Qd R 373 at 380.

[151]Shepherd at 578.

[152]AB1 at 73.

[153]AB1 at 74.7-12.

[154]AB1 at 68.

Close

Editorial Notes

  • Published Case Name:

    R v Scofield

  • Shortened Case Name:

    R v Scofield

  • MNC:

    [2020] QCA 101

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Philippides JA, McMurdo JA

  • Date:

    12 May 2020

Litigation History

No Litigation History

Appeal Status

No Status