R v Clarke (No 3)[2005] QCA 483

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The appellant, Ms Clarke, was convicted on 15 September 2005 after a three day trial in the District Court at Beenleigh of one count of stealing as a servant (count 1), 19 counts of fraud as an employee (counts 2 - 20) and one count of uttering (count 21).  On each charge she was sentenced to two years imprisonment to be suspended after serving six months with an operational period of three years.  She appeals against her conviction, first, on the grounds that the verdict is not supported by the evidence and that the learned primary judge erred in a number of ways.  It is also contended that the judge should have allowed her counsel to cross-examine the witness Umesh Prasad about previous criminal offences.  It is further contended that the judge erred in his directions to the jury on reasonable doubt, parties to offences and lies and that he failed to adequately explain the defence case.  Ms Clarke applies for leave to appeal against her sentence on the basis that his Honour erred in determining the level of trust involved in her position as employee, in concluding that a period of actual imprisonment must be served by her and in giving insufficient weight to mitigating factors.

The appeal against conviction

2. The first ground of appeal requires this Court to review the evidence at trial.

The evidence

3. Ms Clarke was employed as a bank clerk at the Logan Central (Woodridge) branch of the Bank of Queensland. Counts 1 to 20 occurred between 20 May 2003 and 29 May 2003.  The final count (uttering) occurred on 13 June 2003.

4. Mrs Manjula Prasad, a customer of the bank, gave evidence that on 20 May 2003 she visited the Logan Central (Woodridge) branch for the first time. She was served by a teller with whom she had had no prior dealings. She deposited the proceeds of a cheque into a savings account which she held jointly with her husband, Mr Umesh Prasad. She did not use the account regularly and did not make withdrawals from it. She had a bankcard for that account. She could not remember whether she had signed the back of it. She worked with her husband in his small business. Her husband's business cheque account was in his name only and was also conducted with the Bank of Queensland. She also deposited some money into that account. She was unsure whether she filled out a deposit form in making the deposits. She thought she used her Personal Identification Number (PIN) in making the transactions. She could not remember whether she gave the teller her bankcard. She received a receipt for the deposits.

5. She was shown a copy of a deposit slip recording cheque deposits of $190.20 to the joint savings account with the signature of depositor "M Prasad". She said the writing on it and the signature were not hers.

6. She viewed video surveillance footage from the Logan Central (Woodridge) branch of the bank of 20 May 2003 recording her transaction. She identified herself as the customer.

7. On 10 June 2003 she went with her husband to the Beenleigh branch of the Bank of Queensland. They obtained a balance for the joint savings account and found about $9,000 was missing. She checked her wallet and found that her bankcard was also missing. She had not used her bankcard after completing her transaction at the Logan Central (Woodridge) branch on 20 May 2003. She did not withdraw any money from the joint savings account at any automatic teller machine (ATM) after 20 May 2003. She has never signed a document or attempted to transfer money from her husband's account into the joint savings account.

8. She was shown a Periodical Payment Authority Master File Creation form ("PP form") dated 13 June 2003 and signed "M Prasad".  Neither the handwriting nor the signature was hers.

9. In cross-examination she agreed she had a PIN for the joint savings account but she had never used it to withdraw money. The PIN for the joint savings account was a four digit number based on her name but she could not then remember the PIN. When she deposited the money on 20 May 2003 she used her PIN. She did not know whether she handed her bankcard to the teller. She thought the writing on the deposit form was the teller's. The signature on the deposit form did not look like her signature. She again denied taking any money out of the joint savings account after 20 May 2003. She and her husband checked the account balance on 10 June 2003 because they intended to withdraw $5,000 to pay a deposit for their new kitchen.

10. Mr Umesh Prasad gave evidence that he held a bankcard with a PIN for a Bank of Queensland savings account held jointly with his wife, Mrs Manjula Prasad. When he attended the Beenleigh branch of the bank with Mrs Prasad on 10 June 2003 to withdraw $5,000 for a new kitchen he was told there was only $27 in that account. He immediately obtained a statement from the bank officers. This showed that most of the account proceeds had been withdrawn in $500 withdrawals over nine days. He had not used his card to withdraw any money from an ATM in this period. He reported the matter to police.

11. On 16 June 2003 he again went to the bank because he had discovered that $4,000 had been transferred from his private savings account into the joint savings account. Because the joint savings account had been frozen on 10 June 2003 the transferred $4,000 remained in that account. The bank repaid the money taken from the joint savings account after about four weeks. He did not fill out or sign the PP form dated 13 June 2003.

12. In cross-examination he agreed that he and Mrs Prasad had the same PIN for their joint savings account bankcards but he could not recall the PIN at the time of the trial.

13. Mr Russell Cornish, the fraud manager for the Bank of Queensland, investigated the Prasads' complaint about the withdrawal of money from their savings account. The usual procedure for a customer to withdraw money from a bank account was that the teller would take the customer's bankcard, swipe it, key in the amount of the deposit and issue the customer with a receipt. Identification was unnecessary to make a deposit. Customers would fill out the deposit slip and produce their card; the swiping of the card avoided having to key in many details. The customer could also use the PIN by keying it into the PIN pad near the teller's box. These PIN pads are attached to a long cord and can be moved from one teller box to the neighbouring box.

14. A customer wishing to establish a regular periodical payment from one customer's account to another would complete the necessary PP form, sign it and hand it to a teller who would process the authority. If the payment was not urgent it would be sent to head office with the internal mail and entered into the computer system by head office staff. If the payments were to commence within a few days the PP form would be faxed to banking operations where the authority and details would be entered immediately and the PP form returned through the bank's internal mail. Customers can use their bankcards to withdraw money from an ATM and are provided with a receipt which at that time would show the account balance after the transaction.

15. The Prasads' customer authority for establishing the joint savings account and Mr Prasad's customer authority for establishing his private savings account at the Acacia Ridge branch of the bank were tendered.  The deposit form recording the deposit of $190.20 by cheque into the joint account on 20 May 2003 was also tendered.

16. Bank of Queensland computer records showed that whilst on 20 May 2003, after the cheque was deposited, the Prasads' joint savings account had a credit balance of $9,277.92, there were two withdrawal transactions of $500 at the Springwood branch ATM on 20 May 2003;  there were two withdrawal transactions of $500 at the Sunnybank branch ATM on 21 May 2003;  two withdrawal transactions of $500 from the Acacia Ridge ATM on 22 May 2003;  two further withdrawal transactions of $500 from the Sunnybank ATM on 23 May 2003;  two withdrawal transactions of $500 from the Sherwood ATM on 24 May 2003;  two withdrawal transactions of $500 from the Springwood ATM on 25 May 2003;  two withdrawal transactions of $500 from the Acacia Ridge ATM on 26 May 2003 and two further withdrawal transactions of $500 the next day at that ATM;  two withdrawal transactions of $500 from the Springwood ATM on 28 May 2003 and finally on 29 May 2003 at the Sunnybank ATM $400 was withdrawn.  By 29 May 2003 the balance in the account had diminished to $27.92.  When the Prasads' loss from the joint savings account was discovered on 10 June 2003 a stop was placed on the account although it could receive deposits.

17. The appellant's bank records did not show any activity corresponding with the withdrawals of money from the Prasads' account.

18. The surveillance footage showing the transaction between Mrs Prasad and the bank teller at the Logan Central (Woodridge) branch of the Bank of Queensland was also tendered. The bank's surveillance videos showed that Ms Clarke was working at the Logan Central (Woodridge) branch at the time of the ATM withdrawals on 22 May and 29 May 2003 (counts 6, 7 and 20). A video of 13 June 2003 showed that only one customer handed anything to the appellant that morning.

19. The bank statement for Mr Prasad's private savings account showed a $4,000 transfer was effected on 13 June 2003 into the Prasads' joint savings account. A PP form dated 13 June 2003 authorising transfer of $4,000 each month from Mr Prasad's private savings account to the Prasads' joint savings account was faxed from the Logan Central (Woodridge) branch of the Bank of Queensland to head office on 13 June 2003.  On that day computer terminal one at the Logan Central (Woodridge) branch was used 15 minutes before the bank opened at 8.30 am to inquire as to the Prasad accounts.  The terminal was then used to inquire about Ms Clarke's account and the account of B J Clarke and A A Clarke.

20. On 20 June 2003 Mr Cornish telephoned Ms Clarke to try to locate the original PP form of 13 June 2003.  She said that no original PP form had been received but she had been handed and accepted a photocopied form from a customer that day.  He asked her to provide a memorandum of the events of 13 June 2003.  She faxed him a memorandum on 27 June 2003 to this effect.  He subsequently referred the matter to police.

21. In cross-examination he agreed that the PP form applied to transfer money from an account in the name of "U & M Prasad" when in fact that account was in the name of Mr U Prasad only. He agreed that Mrs Prasad could have deposited the money with the bank on 20 May 2003 without a card. Ms Clarke as a teller at the Bank of Queensland had no access to a customer's PIN. She could only learn this if she obtained it in some way from Mrs Prasad. The design of the PIN pad used at the bank counter is intended to prevent others from identifying the PIN when it is keyed in. Customers are warned of the dangers of keeping a record of their PIN with the card. Despite that warning, cards and PINs are sometimes kept together, stolen and misused. On occasions a family member who has known another's PIN has used a card without permission. There were no substantial sums of money deposited into Ms Clarke's accounts or the accounts of her children to correspond with the withdrawals from the Prasads' savings account in May 2003. Mr Cornish agreed it would not be unusual for tellers in the legitimate course of their duties in accepting deposits to place items under the counter. He initially said that in May 2003 the Bank of Queensland system required the entering of a PIN to make a deposit but on further questioning agreed that alternatively a deposit slip on its own could be used; the use of the card would save the keying in of additional materials.

22. Police officer Kilburn investigated the bank's complaint as to the missing money. On 31 July 2003 he went to Ms Clarke's home and executed a search warrant. He located nothing of interest; Mrs Prasad's bankcard was not found. He interviewed Ms Clarke in an audio-recorded conversation which was tendered. She was first asked about the PP form of 13 June 2003. She said she had little recollection of her work that morning and could not really remember how she came into possession of it. She was attending a job interview that morning and left the bank at about 10.20 am.  Before she left she noticed that the PP form was due that day and faxed it to head office.  A customer gave her the PP form with their banking.  At first she thought the customer was a Pakistani man.  That morning she also faxed off a PP form from her account to her daughter's account for $50 a week.

23. The police officer asked whether she had any reason, 15 minutes before the bank opened at 8.30 am on 13 June 2003, to use the computer terminal to access the Prasads' account details.  She said that she may have been answering a customer's inquiry.  As to her then immediately accessing her account, she explained that she frequently checked her own accounts.

24. When asked about the deposits on 20 May 2003, she said that if a customer was depositing money with a card the customer would also enter their PIN. You could however use a deposit slip and do it a different way. The PIN pad used by customers was shared between two tellers. The teller cannot see the key pad which is attached to a cord and is able to be moved along the counter. She denied taking money from the Prasads' account and said that if Mrs Prasad had left her card at the bank a teller could not use it without knowing the PIN.

25. Suzanne Hutchinson attended the Logan Central (Woodridge) branch of the Bank of Queensland on 13 June 2003 to deliver a substitution of security documents and to pay a substitution of security fee arising from the sale and purchase of real estate. She did not hand a PP form to the teller. She viewed video surveillance of her transaction at the bank that day and confirmed that the documents she handed over related solely to the sale and purchase of real estate. She does not know Mr and Mrs Prasad.

26. Ms Clarke did not call or give evidence.

Unsafe and unsatisfactory?

27. The appellant contends that the prosecution's circumstantial evidence did not exclude every hypothesis reasonably consistent with her innocence. Mr or Mrs Prasad or an associate may have used the card to withdraw the money the subject of the charges.  As the Prasads did not know the account's PIN at trial, it was likely that they kept a written record of the PIN, perhaps with the card itself.  The card and PIN could have been stolen or lost and subsequently misused by unknown others.  The video recording of Mrs Prasad depositing money with the appellant on 20 May 2003 did not show that Mrs Prasad gave a card to or left a card with the appellant;  nor did it show that Mrs Prasad provided the PIN to the appellant or that the appellant discovered the PIN.  The evidence in fact suggested that the appellant could not have discovered the PIN from watching Mrs Prasad enter it into the PIN pad during the transaction.  She had no way of discovering the PIN through her employment with the bank.  Ms Clarke's bank statements show that she continued to withdraw small sums of money from her own accounts on days when the prosecution case is that she took $1,000 from the Prasads' savings account.  This is inconsistent with her misappropriation of money from the Prasads' account.  The appellant was certainly not responsible for the transactions on the Prasads' account on 22 and 29 May 2003 when she was video recorded working at the bank.  There is no evidence that she had an accomplice.  The handwriting on the allegedly forged PP form does not seem to be Ms Clarke's;  it does not look like the writing on the other documents which were completed by her that day.  The PP form recorded the account from which money was to be deducted as being in the names of "U & M Prasad" when in fact it was from Mr U Prasad's account;  a bank employee like Mrs Clarke would have recognised this error although a lay person may not.

28. The prosecution case against the appellant was circumstantial but the combination of the following evidence was persuasive.

29. On 13 June 2003 the appellant was responsible for faxing a PP form to head office to transfer $4,000 from Mr Prasad's private savings account into the Prasads' joint account. The Prasads knew the joint account had been frozen on 10 June 2003. To the untrained eye the signature on the photocopied PP form "M Prasad" does appear similar to the specimen signature "M Prasad" on the customer authority form opening the new account. No expert handwriting evidence was called, apparently because the original PP form was never found. The only evidence on the point was from Mr and Mrs Prasad who said that the signature and handwriting on the PP form was not theirs.  The appellant told police that a customer handed her the PP form on the morning of 13 June 2003 but video surveillance showed only one customer handing something to the appellant that morning.  That customer, Mrs Hutchison, said that the documents that she handed to the teller did not include a PP form.

30. Earlier that morning before the bank opened, the appellant made a computer inquiry about the Prasads' accounts. As the Prasads' accounts were held at the Acacia Ridge branch of the Bank of Queensland, not the Logan Central (Woodridge) branch where the appellant was working that morning, Ms Clarke's explanation that she was answering a customer inquiry is unconvincing. Such an inquiry would ordinarily be expected to be made to the branch where the account is held. Immediately after making computer inquiries about the Prasads' accounts, the appellant inquired about her own accounts.

31. Mrs Prasad gave evidence that she did not use her card for the joint savings account after making the deposit into that account on 20 May 2003. She did not make any withdrawals with the card. The first withdrawal on the card was made later on 20 May 2003.  Mr Prasad gave evidence that he did not make any withdrawals from the joint account on or after 20 May 2003.  There was no evidence that Mrs Prasad's purse had been stolen or that her car or home had been unlawfully entered so that there was no apparent alternative explanation as to how her card came to be misused. 

32. Mrs Prasad was not sure if she gave the teller her card when she made the deposits on 20 May 2003. She thought she used her PIN on that occasion. The teller responsible for that transaction was the appellant. The video recording of the transaction does not establish that Mrs Prasad gave the appellant her bankcard but it shows that this may have been an opportunity when the appellant could have obtained the card and PIN.

33. The only rational inference from these facts in combination is that the person who stole the card and dishonestly withdrew the money from the Prasads' joint account was the person who completed the PP form dated 13 June 2003 to transfer money from Mr Prasad's private savings account to the Prasads' joint savings account. As the Prasads had frozen the joint savings account on 10 June 2003 they were unlikely to be responsible for the PP form of 13 June 2003. The evidence of the appellant's actions on the morning of 13 June 2003 leads to the irresistible inference that she was the person responsible for completing the PP form to transfer $4,000 from Mr Prasad's private savings account to the Prasads' savings account (count 21).  On 20 May 2003 the appellant was the teller who dealt with Mrs Prasad when she made deposits to the joint account.  This may have provided an opportunity for the appellant to obtain Mrs Prasad's card and PIN.  The unauthorized withdrawals from the Prasads' account commenced later on 20 May 2003.  Neither Mrs Prasad nor Mr Prasad withdrew any money after 20 May 2003.  The only rational inference from these facts is that the appellant obtained Mrs Prasad's card and PIN on 20 May 2003 and was responsible for the subsequent dishonest use of it (counts 1 - 20).  Whilst Ms Clarke was not directly responsible for the withdrawals of 22 and 29 May 2003 (counts 6, 7 and 20) the person who was responsible must have been acting either in collusion with the appellant or at her direction.

34. On the whole of the evidence the jury was well entitled to exclude all reasonable hypotheses consistent with innocence and to be satisfied beyond reasonable doubt of the accused's guilt on each offence. It follows that this ground of appeal fails.

Cross-examination about prior criminal history

35. Prior to the prosecution opening, defence counsel sought leave under s 15A Evidence Act 1977 (Qld)^[1] ("Evidence Act") from the primary judge to cross‑examine Mr Prasad about offences of assault and breach of apprehended violence order committed by him between 1994 and 1996 in respect of which the rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) ("the Act") had expired.  Under s 8(1) of the Act Mr Prasad was entitled to claim that he had not suffered those convictions.^[2]  The relevant considerations when exercising the discretion under s 15A Evidence Act are discussed in R v Millar.^[3]

36. His Honour refused the application as he considered that in those circumstances there was insufficient relevance to allow the cross-examination about the spent convictions.

37. The appellant contended at trial and on appeal that the cross-examination was relevant because Mr Prasad's convictions demonstrated that Mr Prasad had in the past been violent towards a former spouse; if Mrs Prasad knew of this history of violence then this affected the credibility of her claim that she did not withdraw the money from the joint savings account for her own purposes without Mr Prasad's knowledge (a central issue in the case); she may have been fearful of admitting she had withdrawn the money because she knew of her husband's violence to his former spouse and feared he may be violent towards her.

38. Because of the ruling, defence counsel quite properly did not question Mr Prasad about the spent convictions the subject of the application and nor did he question Mrs Prasad about her knowledge of them.

39. The submissions made to the primary judge by defence counsel identified that the application was in respect of only part of Mr Prasad's criminal history and that leave to cross-examine was not required in respect of at least one offence. Whilst his Honour's ruling is not entirely clear, and the point was not specifically canvassed, his Honour recognised the application concerned only the spent convictions in Mr Prasad's criminal history.  The ruling did not prevent counsel from cross‑examining Mr Prasad about his conviction in the Penrith District Court on indictment on 11 December 1996 for assault for which he was convicted and sentenced to a $5,000 recognizance for four years conditional on his acceptance of probation and training in alcohol abuse.  This was because the rehabilitation period under the Act in respect of that offence was 10 years^[4] and had not expired at the date of trial.  Defence counsel was therefore entitled in the ordinary course to cross‑examine Mr Prasad about that conviction:  s 16 Evidence Act.

40. Defence counsel did not, however, cross-examine Mr Prasad about that conviction. Nor did he cross-examine Mrs Prasad about matters such as whether Mr Prasad had assaulted her, or whether she was aware of his conviction on indictment for assaulting his former wife and, if so, whether that made her fear him. Defence counsel was not precluded from following that line of questioning by his Honour's ruling. Perhaps counsel decided that such questions may not have helped the appellant's case. Mrs Prasad said that she did not withdraw any money from the joint account. For the reasons given on the first ground of appeal, it was very implausible that Mr or Mrs Prasad could have been responsible for the withdrawals from their joint account between 20 and 29 May 2003.

41. In any case, his Honour's ruling, which was made before any evidence was given, was interlocutory in the sense that if the evidence developed to support a fresh application under s 15A Evidence Act, one could have been made. As the High Court recognised in Wakeley v R,^[5] it is often impossible to determine in advance of cross‑examination whether there is a logical connection between information elicited in cross-examination and the issue to be determined so as to make the answers to the cross-examination admissible evidence.  His Honour's ruling certainly did not stop defence counsel from asking Mr Prasad whether he had been convicted on indictment of the 1996 assault offence and Mrs Prasad whether she knew of that conviction, whether it made her fearful of Mr Prasad or whether she was generally frightened of her husband.  Had those questions been asked, and depending on the answers received, defence counsel could have renewed his s 15A Evidence Act application although it is difficult to see what could have been gained when he was not precluded from cross-examining Mr Prasad about the 1996 assault conviction on indictment.

42. It seems that the s 15A application to cross-examine Mr Prasad about his spent criminal convictions was based on what may have become a challenge to Mrs Prasad's credibility on a central issue.  That issue was not pursued in cross‑examination so that the evidentiary basis to support the application was never established.  Had it been, the principles discussed in Millar would have supported the granting of the application.  I am not persuaded that his Honour erred in exercising his discretion to refuse the application when no evidentiary basis to support it had then been established.  Furthermore, it is difficult to see what advantage would have been gained by cross-examining Mr Prasad about the spent convictions when defence counsel was entitled to question him about the 1996 assault conviction on indictment.  It follows that this ground of appeal fails.

The directions on reasonable doubt

43. The appellant contends that the learned primary judge's direction to the jury on reasonable doubt was flawed in that it expanded on the meaning of the words "reasonable doubt" without any jury request to do so and therefore did not comply with the model direction in the Queensland Supreme and District Courts Benchbook ("the Benchbook").

44. The Benchbook provides in the introductory "General" section under "Summing Up", sub‑heading "Standard of proof", the following model direction:

"For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty".

A footnote to that direction states "A trial judge should not expand on the meaning of 'reasonable doubt' or attempt to define the concept any further, unless asked to do so by the jury".

45. The Benchbook further provides at No 57.1:

"The suggested direction should only be given where the jury indicates that it is struggling with the concept.  It draws on Krasniqi (1993) 61 SASR 366;  cf Chatzidimitriou [2000] 1 VR 493, 498, 503, 509.

A reasonable doubt is such a doubt as you, the jury, consider to be reasonable on a consideration of the evidence.  It is therefore for you, and each of you, to say whether you have a doubt you consider reasonable.  If at the end of your deliberations, you, as reasonable persons, are in doubt about the guilt of the defendant, the charge has not been proved beyond reasonable doubt." (emphasis in Benchbook)

46. The appellant's counsel were unable to refer the Court to any authority requiring that that direction should only be given when the jury indicates it needs assistance with the concept of reasonable doubt.

47. The learned primary judge's direction was in these terms:

"Before you can convict the accused you must be satisfied that the Crown has proved every element of each of the offences on the indictment beyond reasonable doubt.

Now, that phrase, beyond a reasonable doubt, has troubled our system for many, many decades but it means exactly what it says and that has been stressed also and referred to by counsel.  The words are commonly used in our every day language.  You decide what is a reasonable doubt in the circumstances of the case and the law says that a Judge should not proffer any further explanation to a jury of the meaning of that phrase because it is essentially a jury question.  You heard it said that it is a high standard to satisfy, but not an impossible standard and that is quite true.  It is a high standard but it is not an impossible standard.

  It can best be summarised in this way, if at the end of your deliberations, as reasonable people, after assessing the evidence you have heard from the witnesses called, you are in doubt as to whether or not the Crown has established its case against the accused, then the Crown has not proved its case to you beyond a reasonable doubt, in which case you must acquit the accused.  But if you are satisfied beyond a reasonable doubt that the accused has committed any of the offences with which she is charged then, of course, it is your duty to convict.  The decision is yours and yours alone.

Reasonable doubt is such doubt as you, the jury, consider to be reasonable on a consideration of the evidence.  It is for you and each of you to say whether you have a doubt you consider reasonable.  If, at the end of your deliberations, you as reasonable persons, have a doubt you consider reasonable about any element or elements of the offence of the charges, then the charges have not been proved beyond a reasonable doubt and you must acquit the accused."

48. The experienced defence counsel did not apply for any apposite redirection.

49. His Honour's direction did not contain any of the impermissible expressions which amounted to misdirections in Green v The Queen;^[6]  R v Punj;^[7]  R v Irlam;  ex parte A-G (Qld),^[8] R v Kidd^[9] or R v Bain.^[10]  The judge certainly directed the jury in terms suggested by Barwick CJ, McTiernan and Owen JJ in Green v The Queen,^[11] approving Thomas v The Queen.^[12]  The appellant's complaint is that it was a misdirection to give such a detailed explanation as to the meaning of reasonable doubt without the jury requesting it because of what is contained in the Benchbook.

50. His Honour's words suggest that he felt some further explanation than usual was necessary because both counsel in their addresses to the jury discussed the standard of proof required by the prosecution.

51. The prosecutor told the jury that the defence counsel was:

"… likely to say that it can't be a near possibility that she committed the offences or even likely that she committed them.  He will tell you that you must be satisfied beyond reasonable doubt and he is right to do so.  Keep in mind though that the phrase is beyond reasonable doubt and that the beyond reasonable doubt is not an impossible standard for the Crown to meet.  If it were, no one would ever be convicted of any criminal offence before this Court."

52. Defence counsel told the jury:

"Now, the standard of proof is beyond reasonable doubt.  It is the highest standard known to law.  And as my friend says, it is not an impossible standard or nobody would be convicted.  It's not beyond all shadow of a doubt, but it is beyond reasonable doubt, and whilst we can't tell you what that is, we can [sic] you what isn't.  My learned friend has told you and I agree with her, it's not beyond all shadow of a doubt, it's not an impossible standard.  But similarly, it's not sufficient for you to convict her if you think she probably took the money or took the card and used some accomplish [sic] to take the money.

If you were a jury sitting in a civil case, if the Bank of Queensland was suing her to recover this $9,400, then there would be four of your [sic] and the standard of proof required would be the balance of probabilities.  In other words the bank proved that probably Suzanne Clarke took this money or Suzanne Clarke with the assistance of someone took this money, then that would be sufficient for them to recover in a civil judgment.  But it's not sufficient in this Court, even if you are satisfied that she probably took the money, but nevertheless retained some reasonable doubt about the matter, you are obliged to find her not guilty in accordance with your oaths or affirmation.

It's not a finding of innocent a verdict of not guilty.  You're not exonerating her.  You're not clearing her.  You are merely recognizing by that verdict that the Crown have failed to come up to the very high standard required of them."

53. The learned primary judge was entitled to conclude that because of counsels' references to the term "reasonable doubt", the jury would benefit from a more detailed direction even though not specifically requested. Whilst the Benchbook is an extremely valuable aid to judges in formulating the basis of judicial directions to be given to a jury in a criminal trial, it is not intended to be an inflexible and all-encompassing code. Criminal trials are infinitely variable and often require judges to take innovative approaches. The Benchbook is intended to be adapted by judges as necessary to the circumstances of each unique criminal trial. No complaint is made about any particular aspect of the direction on reasonable doubt, only that such a full explanation should only have been given after a jury request. Even though the direction was given without such a request, nothing in it amounted to an error of law resulting in a miscarriage of justice: cf R v Booth^[13] and R v Moffatt.^[14]  The direction did not divert the jury from its real task of deciding whether the prosecution had proved the elements of each offence beyond reasonable doubt on the evidence but rather helped them focus on this task.  This ground of appeal also fails.

The directions on s 7 Criminal Code

54. The judge explained to the jury that the prosecution case was that the appellant was the main or principal offender who stole the bankcard, withdrew money at the various ATMs and uttered the PP form but when the withdrawals took place on 22 and 29 May 2003 (count 6, 7 and 20) she was at work at the Logan Central (Woodridge) branch of the bank.  The prosecution case was that someone else made those transactions having been procured by the appellant to do so.  His Honour added:

"… criminal responsibility extends to any person who is a party to an offence.  A party to an offence includes the following persons:  the person who actually does the act, which constitutes the offence, and each person who counsels or procures another to do it.  Now, counsel means advises or who actually provides the means, as it were, of another person doing it.  So, it is not only the person who actually does a criminal act who may be found guilty of that criminal act, but anyone who encourages that person to do it, might also be guilty of the offence.  For example, if two people or one person attacks another person on the street and is accompanied by another person who was there and is with the person who attacks the person at all times, well then it would be able to be alleged that the second person is also a party to that offence.  So, it's not only that criminal responsibility extends to any person who actually commits the offence, but also to any person who advises or procures another to do it."

Later his Honour returned to this topic, adding:

" . . . I just wanted to re-cap on a couple of things I said prior to the luncheon adjournment dealing with the issue of being a party to the offence;  in other words, the criminal responsibility extending not only to any person who commits the offence, but to any person who might counsel or procures the offence.  That also includes the term, aids, and the Crown case here is that you are able to come to a conclusion, according to the Crown case, that the accused aided, or may have aided someone else on each and every of the counts … 2 to 20.  In other words, she either did it herself or aided someone else to commit those offences."

55. The appellant contends that the primary judge erred in giving those directions because he did not refer to the dishonest intent of the aider or the person procured or counselled.

56. That submission misconstrues the case against the appellant. It was not that she was the aider or the person procured or counselled to commit counts 6, 7 and 20 but that she was the person who procured or counselled the person who made those withdrawals.

57. In explaining the elements of the offences his Honour stated that on each count of fraud the prosecution must prove that the appellant used the bankcard dishonestly, giving a direction as to the meaning of "dishonestly" about which there is no complaint. Later he told the jury that in respect of count 6, 7 and 20 they must:

"… be satisfied that an unidentified person performed those two transactions on those days referred to, that the [appellant] procured, that is brought about, caused to be done, prevailed on, or persuaded the unidentified person to make those transactions, and thereby brought about the commission of the offences referred to in those counts, and the [appellant] was fully aware that the unidentified person intended to make those transactions at those ATM's at those relevant times."

58. The directions made it clear that the jury could only convict the appellant of any offence if they were satisfied she intended to steal the bankcard (count 1), that she dishonestly applied the bankcard to her own use (counts 2 to 20) and that she intended to defraud when she uttered the PP form (count 21). Although his Honour's directions on s 7 Criminal Code were superfluous and not helpful to the jury, they did not disadvantage the appellant nor constitute any miscarriage of justice.  The intent of the aider or person procured by the appellant was irrelevant as to whether the appellant's guilt on each count was proved beyond reasonable doubt.  The aider or person procured had not been charged.  The appellant may have been guilty of the offences even if the aider or procurer was acting entirely innocently, for example, believing he or she was doing a favour for a friend of the appellant.  This ground of appeal also fails.

The directions as to lies

59. The appellant contends that the judge's directions to the jury as to the use to be made of the appellant's lies should have but did not comply with the requirements set out in Edwards v The Queen.^[15]

60. Prior to the commencement of counsels' addresses in the absence of the jury his Honour read out the direction he proposed to give about what the prosecution alleged were lies the appellant told to Mr Cornish and police officer Kilburn with respect to the PP form. This was in similar terms to the direction subsequently given to the jury. His Honour indicated to counsel that the direction was one which avoided the question of consciousness of guilt because that only became relevant where there was an unequivocal lie independently proved and that had not been done in this case. The jury would be entitled to come to a conclusion that the accused had lied to Mr Cornish and police officer Kilburn but this did not require an Edwards direction but rather a direction such as he proposed.

61. Defence counsel said that he had listened carefully to the proposed direction and he had no difficulty with it. Nor did he apply for any redirection after the direction was given to the jury. That does not, of course, relieve this Court of its responsibility to determine whether the direction was an error of law resulting in a miscarriage of justice: cf R v Aboud.^[16]

62. The prosecutor in her address, after referring to the evidence, invited the jury to conclude that the appellant lied to Mr Cornish and to police officer Kilburn about the source of the PP form. Unfortunately, despite his Honour's ruling that any lies could not to be used as evidence of consciousness of guilt, the prosecutor added "You might, therefore, think that this is a version that she has made up so as to avoid the consequences of her action". Defence counsel in his address urged the jury to accept that the appellant was doing her best to honestly answer the queries of Mr Cornish and police officer Kilburn and was not lying but giving her best recollection in reconstructing the events of the morning of 13 June 2003.

63. His Honour directed the jury that it was a matter for them whether they concluded that the appellant was telling lies when she spoke to Mr Cornish and police officer Kilburn.  There was no unequivocal clear cut evidence which independently proved she was lying.  All the jury had was the video footage.  Even if they concluded the appellant was lying they must:

"… not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.  We are all human.  We are all subject to emotion.  At any time, anyone of [sic] may act out of panic or fear.  Out of panic or fear we may say something that we would not have said if we had remained cool, calm and collected.  So, a person might, for instance, tell a lie simply out of panic or fear.  He or she may tell a lie out of a sense of shame.  You may tell a lie to protect someone.  So, all of these circumstances must be taken into account."

His Honour gave an example of a married man accused of rape who then falsely denied having sexual intercourse with a woman not his wife out of shame.  His Honour gave another example of a man charged with assaulting someone at a park who falsely denied that he was at the park, not because he was lying because he committed the assault, but because he was having a tryst with a lover and did not want this discovered.  His Honour added:

"Ultimately, it is up to you.  If you think there is or may be some innocent explanation for any lie which you may consider the [appellant] stated, then you should take no notice of them, because you must look at the whole of the evidence and come to your conclusion in that way."

64. His Honour's direction to the jury did not suggest that the lies could be used to show any consciousness of guilt on the part of the appellant. It met the model direction for lies going only to credit set out by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff v The Queen.^[17]  It was balanced and very favourable to the appellant.  It may have been better had the judge additionally told the jury to disregard the prosecutor's statement that the appellant may have lied to avoid the consequences of her actions but the judge did state that the jury must not reason that, simply because she has told a lie about something, that is evidence of guilt.  It may also have been better had his Honour explained to the jury that if they found the appellant had lied then that was a question which only affected her credibility, as suggested in the model Benchbook direction,^[18] but that direction was not mandatory here and its absence did not amount to an error of law:  cf Dhanhoa v The Queen.^[19]  This ground of appeal also fails.

Did the judge adequately put the defence case?

65. The appellant contends that the trial judge failed to adequately put the defence case; in his charge to the jury he said nothing about it and in summarising the evidence he failed to mention central points made by defence counsel, especially whether Mrs Prasad entered her PIN into the PIN pad at the bank on 20 May 2003 and whether the appellant then had the opportunity to obtain Mrs Prasad's PIN.

66. As was recognised by Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen^[20] the fundamental task of a trial judge is to ensure a fair trial and this requires the judge to instruct the jury as to the relevant law and to fairly put the accused person's case.  See also R v Mogg^[21] and R v Hytch.^[22]

67. The defence case was essentially that the prosecution case was circumstantial and the prosecution had not excluded every rational inference consistent with innocence; there was no proof that the appellant obtained Mrs Prasad's PIN; she was not physically responsible for the withdrawal transactions constituting counts 6, 7 and 20; if Mrs Prasad had lost her card on 20 May 2003 and her PIN was with it, anybody could have found it and committed the offences;  the writing on the PP form did not look like the appellant's writing;  the jury could not convict the appellant on wild speculation.

68. His Honour did not follow the commonly adopted procedure of trial judges of discretely summarising the defence and prosecution case for the jury. The evidence was given over two days and the jury retired to consider their verdict on the third day. After dealing with the usual important preliminary matters, his Honour explained the elements of the offences and briefly referred to evidence relied on by the prosecution to establish those elements. His Honour explained that the prosecution evidence was circumstantial and gave the jury examples from their everyday lives when they might draw inferences from circumstantial facts. His Honour told the jury that:

"… to enable [them] to bring in a verdict of guilty, based on circumstantial evidence alone, [as] … here, it is necessary not only that guilt should be a rational inference, but the only rational inference that the circumstances would enable [the jury] to draw.  If there is any reasonable conclusion, explanation or interpretation when you consider all the circumstances outlined in the evidence, which is consistent with the innocence of the [appellant], it is [the jury's] duty to acquit and to deliver a verdict of not guilty.  That is very important for you to consider.  You have heard counsel's submissions on that point.

… I would remind you again that the onus is on the Crown, as it is throughout a criminal trial, to prove the guilt of the accused person beyond a reasonable doubt.  That onus never shifts and that standard of proof must be achieved before a verdict of guilty can be delivered.  Otherwise, it is your duty to acquit."

69. After giving the directions on lies canvassed earlier, his Honour briefly reminded the jury of the evidence of the witnesses, including portions of cross-examination, and of the video taped surveillance of the appellant in the bank on 20 May 2003 and 13 June 2003.  His Honour referred to Mr Cornish's evidence that the appellant was working in the bank at the times when counts 6, 7 and 20 were committed and of the interview between police officer Kilburn and the appellant and that portions of that interview were highlighted by defence counsel.  His Honour said that the evidence was of relatively short compass and had been carefully outlined by counsel.  His Honour summarised the prosecution case in a few lines, next stating that the jury must decide the case on the evidence, reiterating "… that this is a circumstantial case and where there is any rational inference consistent with innocence, then the [appellant] must be given the benefit of that and you must not find the [appellant] guilty, if you are of the opinion that there are or is a reasonable inference - rational inference consistent with innocence."

70. The experienced defence counsel did not ask for any redirection based on a failure to fairly put the defence case. That is, of course, not fatal to this ground of appeal if injustice has resulted: R v Kassulke.^[23]  But it supports the conclusion that in the circumstances here, where the defence case was essentially that the prosecution had not excluded all rational hypotheses consistent with innocence, the summing up considered as a whole fairly put before the jury the appellant's case at trial:  cf R v Conway.^[24]  It follows that this ground of appeal and the appeal against conviction fails.

Sentence

71. The appellant was a mature woman, 45 years old at the time of the offences and 48 at trial and sentence. She had no prior convictions. The maximum penalty for counts 1 to 20 was 10 years imprisonment and for count 21 three years imprisonment.

72. At sentence defence counsel emphasised that the appellant had worked for many years for the Bank of Queensland and had contributed to the community through her work and through raising her children. Even on the prosecution case, some other person was involved in the offences. There was no evidence that Ms Clarke had received any proceeds from the crimes. The offences occurred over a short period and involved an amount less than $10,000. Ms Clarke had a lowly position in the bank. She has been separated from her husband for some years and has three children aged 25, 21 and 19. Her 21 year old son had had a motorcycle accident resulting in six months rehabilitation; he had been unable to work and was financially dependent on her. Her 19 year daughter was an apprentice but because of her other financial commitments was also unable to contribute financially to the household; the daughter had suffered emotional damage as a victim of assaults and had made multiple suicidal attempts; she was strongly attached to her mother. A sentence of 12 months imprisonment might be within range but it should be fully suspended.

73. The prosecutor submitted that the serious aspects of breach of trust and the amount of money (over $9,000) involved in the offending required a sentence which reflected principles of general deterrence. The mitigating factors of a plea of guilty, co‑operation and remorse were not present here.  A term of imprisonment of between 18 months and two years was warranted.

74. His Honour considered that Ms Clarke's position of trust as a bank teller was "at a substantial level [with] … ready access to the very private details of customers' financial affairs". He considered the commission of these offences a despicable betrayal of a customer's trust and she took "… advantage of a very timid and unsophisticated woman who was clearly a vulnerable target". Her conviction on the count of uttering showed that she intended to continue her criminal behaviour had she not been detected. His Honour concluded that, despite Ms Clarke's lack of prior convictions, in all the circumstances an actual period of imprisonment had to be imposed.

75. The appellant contends that the judge erred in finding that a period of actual imprisonment had to be served in this case and in his assessment of the appellant's position of trust.

76. In my view his Honour did not err on either basis.

77. In cases of this kind courts frequently moderate the sentence where an offender has shown remorse, pleaded guilty, co-operated with the authorities and given a plausible account to help explain the inexcusable breaching of a position of trust as an employee. Such mitigating factors were absent here. The cases relied upon by the respondent, R v Harch,^[25] R v Bird^[26] and R v Sigley,^[27] all demonstrate that the sentence imposed here involving a period of actual custody was well within the appropriate range.

78. A particularly serious aspect of this case was that Ms Clarke, a mature woman who had been employed by the Bank of Queensland for many years, committed this carefully planned and orchestrated series of frauds, which affected not only her employer who was ultimately responsible for the loss but also the bank's general reputation in the community and the bank's customers, Mr and Mrs Prasad. No doubt her co-workers were also troubled by her offending in having to justify their innocence. A salutary deterrent penalty was entirely appropriate and necessary. On the facts placed before the learned primary judge there were no mitigating factors other than that Ms Clarke's young adult dependent children were likely to suffer from her incarceration. The term of imprisonment imposed was however moderate and its early suspension after six months gave compassionate recognition to this factor. The sentence was by no means excessive.

79. I would refuse the application for leave to appeal against sentence. As the appellant was granted bail pending appeal a bench warrant must be issued for her arrest.

80. Orders

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

3. A bench warrant is to issue for the arrest of the appellant but to lie in the registry until 3 January 2006.

81. HELMAN J:  I agree with the orders proposed by the President and with her reasons.

82. CHESTERMAN J:  I agree with the reasons of the President and the orders proposed by her Honour.