R v Woodward[2020] QDC 254

DISTRICT COURT OF QUEENSLAND

CRIMINAL JURISDICTION

JUDGE DEARDEN

Indictment No 7069 of 2019

THE QUEEN

v.

JENNIFER ELIZABETH WOODWARD

BRISBANE

9.59 AM, WEDNESDAY, 12 AUGUST 2020

JUDGMENT

Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.

WARNING:  The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence.  This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories.  You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

HIS HONOUR:   The defendant, Jennifer Elizabeth Woodward, is charged with one count of fraud as an employee to the value of at least $100,000 (indictment 2493/19) in the following terms:

That was an employee of Levanta Pty Ltd and the yield to Jennifer Elizabeth Woodward from the dishonesty is of the value of at least $100,000.

The trial before me was conducted as a judge only trial pursuant to an order made by Judge Devereaux on 12 June 2020. 

The defendant pleaded not guilty before me on 22 June 2020. 

Elements

In respect of the charge the prosecution must prove beyond reasonable doubt: 

1. That the defendant obtained property from any person;

“obtain” includes to get, gain, receive or acquire in any way: 

2. The action of the defendant must have been done dishonestly;

to prove the defendant acted dishonestly the prosecution must prove that what the defendant did was dishonest by the standards of ordinary honest people. 

3. The defendant was an employee of Levanta Pty Ltd.
4. The yield to the defendant was of the value of at least $100,000.

Particulars 

The particulars tendered in the trial (exhibit A) are as follows:-

1. 1.
   The defendant, Jennifer Woodward, obtained the sum of money, namely, $134,810.94.
2. 2.
   The money was dishonestly obtained by the defendant amending or causing to be amended the payment information of Aircare Engineering Pty Ltd in the MYOB database of Levanta Pty Ltd.
3. 3.
   The defendant, Jennifer Woodward, was an employee of Levanta Pty Ltd.
4. 4.
   The defendant did not have permission from Levanta Pty Ltd to change the payment details for Aircare Engineering Pty Ltd.

Principles 

In respect of the principles to be applied in a judge only trial, I refer to and respectfully adopt the exposition of those principles set out by Smith DCJA in R v MMH [2020] QDC 70, [7] – [10], supported by the cases and legislation cited in those paragraphs of his Honour’s judgment. 

Evidence

The parties agreed pursuant to section 644 of the Criminal Code a series of admissions (exhibit B) in the following terms:-

1. 1.
   The defendant, Jennifer Woodward, was an employee of Levanta Pty Ltd but not necessarily at the material time.
2. 2.
   The defendant, Jennifer Woodward, was the owner of Westpac Bank account number 218871, BSB 036-187.
3. 3.
   On 20 November 2018 a quantity of money was remitted to Jennifer Woodward’s bank account.
4. 4.
   The quantity of money remitted to Jennifer Woodward’s bank account was $134,810.94.

The prosecution submissions contain a useful summary of the key aspects of the evidence in the Crown case which I gratefully adopt as appropriate.  Where necessary I will quote the summary of Crown witnesses:

32.  Kathy Davis, an employee of contractor Momentum, explained the MYOB EXO system and relevantly that: 

1. a.
   Users are identified “identified by user name and their own personal passwords and a number that’s allocated automatically for that particular user” (T2-4).
2. b.
   The defendant is identified as user number 102 and had the profile for her provided her with the ability to edit and update creditors and add new creditors as well as to edit or update payment details to those creditors (T2-5-8).
3. c.
   The creditor information for Aircare was updated on 15 October 2018 (T2-7 LL28-39).

44.  Kathy Davis ... explained that MYOB EXO is for managing accounting systems for larger organisations with a more secure platform for managing data.  It is a lot more complex to edit by users once a transaction has been entered into the system and there is a higher level of security options (T2-3).

33.  Claudia Bryan-Brown, the then 17 year old procurement and inventory coordinator, gave evidence that she was given this role to assist the defendant from 12 October 2018 and that she first met the defendant the week before after she returned from New York (T4-30).  It was after the office was carpeted on 19 October 2018 that the defendant moved into the same office (T4-31).

34.  Ivan Woodford, the general manager, gave evidence that: 

1. He arranged a meeting with [the defendant] because of the discrepancies in stock movements and serious errors that had to be corrected (T2-57).
2. On 19 November 2018 he asked for a meeting with the defendant by text in the afternoon (T2-58).  This coincides with the emails between the defendant and the CFO Namrata Bhola (exhibit 21;  T3-78-82) that same day, clearly showing that the defendant is unhappy with the stocktake correction process and preceding the defendant leaving the workplace unexpectedly that day (T2-58).
3. On 20 November he observed the defendant in the office at 7.30 am which was earlier than usual as she typically commenced at 8-8.15 am (T2-59).
4. Had a conversation in his office at prior to 8 am where the defendant complained that “they’ve locked me out of the system” and he noted she had full access to her emails and there was plenty of other work for her to do (T2-59).

The prosecution submits that it appears that this would have been the last occasion available for the defendant to photograph the portions of the emails tendered as exhibit 12, and incorrectly suggested to be sent on 16 November 2018. 

5. After this conversation she politely left and shut the door.  At that time he wasn’t aware of the developments that he found out subsequently (T2-59-60).
6. He made arrangements, remotely, for the defendant’s position to be terminated after he had attended the funeral on 20 November, prior to returning to the office at about 3.30 pm (T2-62).

35.  Namrata Bhola, the CFO [chief financial officer], gave evidence that: 

1. The MYOB EXO profile allocated to the defendant was based on the responsibilities of the defendant’s role (T2-46).
2. Confirmed that the defendant’s unique ID number in MYOB EXO was 102 and that her profile “accounts” was quite powerful, and it enabled the user to edit customer and supplier master data details, including bank account details (T2-47).

36.  William Rendell, director of Aircare Engineering Pty Ltd, gave evidence that: 

1. He received an email from the defendant on 16 October 2018 asking for an invoice (exhibit 14;  T3-48-49).
2. Previous contact with the defendant was only by email and consisted of six of them.  This was the only request for an invoice.  The other five had only been purchase orders which was routine as the defendant was in procurement (T3-4 LL41-46).  Invoice was normally handled by the accounts section at Levanta and “to receive a request from purchasing I guess, was – was unusual” (T3-48 LL21-27).

I accept the prosecution submission that the transcript was in error at that particular point and adopt the interpretation submitted by the prosecutor. 

38.  Tamena (Tammy) Stephens, the accounts manager with Aircare, gave evidence that: 

1. She received a remittance advice from Levanta on 20 November 2018 indicating that the sum of $134,810.94 had been remitted and was expecting that amount.
2. After a few days she noticed that the money had not arrived into the account and she inspected the remittance advice noticing that the bank account details for Aircare were incorrect.  She sent a query to the accounts section at Levanta (T3-66;  exhibit 18).

39.  Norman Sharples, director of Levanta Pty Ltd, gave evidence that: 

1. The defendant commenced employment with Levanta on 9 July 2018 initially in the purchasing department and then as the inventory and purchasing manager (T2-97-98).
2. Her role was controlling stock and placing purchasing orders (T2-98 L12).
3. Payments to suppliers [were] conducted by the accounts section, with Sharon Marshall with the responsibility of setting up the payments, followed by Michelle Sayers (Moran) who would be responsible for checking and authorising the payments (T2-98).
4. He reported the matter to police on Wednesday 21 November 2018 (T2-99).

The evidence from Detective Senior Constable Thomas Buckman was that he believed that the complaint was made the day after the incident (T4-35). 

42.  Sharon Marshall who worked in accounts payable gave evidence that: 

1. On 20 November 2018 she was tasked by Michelle Moran (aka Sayers) to investigate an Aircare payment.  As a result she checked the bank account details, rang Aircare and noticed the bank details were incorrect in MYOB EXO under the details for the creditor (T2-28).
2. She did not make the alteration as it is permanently in the record and she doesn’t make any changes to regular suppliers unless notice notified to do so.
3. She looked manually through every statement and there was no record of that bank account (T2-28).

50.  Sharon Marshall [also gave evidence] ... that: 

1. The payment details are entered and kept on the MYOB EXO and she doesn’t enter them every time.  It is done automatically once entered.  She just uploads the payment to the bank (T2-26). 
2. Her role was to prepare and upload the information to pay creditors and determine which invoices to pay (T2-27).
3. This duty involves checking the validity of the intended transaction and the MYOB EXO system shows the bank account and simply indicates “valid or invalid”.  If all valid it’s ready to upload and she then advises the financial controller (Michelle Moran) (aka Sayers) that her (second) approval is ready to go (T2-27).

45.  David Tisdall, a director of EnactMSP which is an IT consultancy engaged by Levanta, [was] responsible for the entire database server for the IT function of Levanta from 1 July 2018 (T4-2-3).  He gave evidence that: 

1. Staff number 102 belonged to the defendant (T4-5).
2. The pdf document sent by the defendant from her business email to her private email account on 11 September 2018 was scanned with the office scanner to her business email account and then forwarded on to her private email account (T4-7-8).
3. The Levanta scanners did not have the function that caused the scanned documents to be retained (T4-8 L26).
4. There was no record of any access to the defendant’s email account prior to the requests being made subsequent to 20 November 2018 (T4-8).

48.  Charmaine La Fleur, a senior banking associate with the NAB, gave unchallenged evidence that: 

1. On 20 November 2018 she received advice that in relation to Levanta the anti-scam investigations team of NAB had been alerted that “a transfer had been made and had been made to a previous recipient of the same name however a different account number” (T1-24-25).
2. The anti-scam team advised her closer to 4 pm that “a case had been initiated and a recall indemnity had been sent to Westpac”.  At this stage the “necessary blocks were placed on the account and that it would be a process of around four to six weeks to determine whether the funds would be recovered” (T1-25).
3. On 27 November 2018 at 10.45 am she received confirmation from the anti-scam team that the full recovery of the funds had been successful (T1-26).

49.  Michelle Sayers (nee Moran) the financial controller at Levanta, gave evidence that: 

1. She had authorised the payment which had been checked by Sharon Marshall and no one else had that duty (T1-32-33).
2. After being contacted by Charmaine La Fleur she instructed Sharon Marshall to check that the bank details matched the supply invoices – they didn’t (T1-34).
3. Requested Charmaine to put a hold or stop on the payment that had already been made (T1-34).
4. Spoke to Kathy Davis of Momentum asking for when the file had last been accessed.  She emailed “a screenshot of the information that was in the system and the last date that it changed, date and time stamp” (T1-35).
5. The “chequing report”, which she uses to give authorisation, does not include the creditor bank details (T1-36).

Directions

1. I must reach my verdict only on the evidence.
2. In addition to facts proved by evidence I may draw inferences, but only reasonable inferences, and if there is more than one inference reasonably open, I must draw the inference that most favours the defendant.
3. The burden rests on the prosecution to prove the guilt of the defendant, beyond reasonable doubt.  There is no burden on the defendant, who is presumed to be innocent.  I dismiss all feelings of sympathy or prejudice, regardless of who is involved and regardless of the nature of the allegations or charges.
4. I am required to assess the credibility and reliability of witnesses and I may accept or reject such parts of the evidence as I see fit in fulfilling that fact-finding function.
5. The defendant has not given evidence.  That is her right.  She is not bound to give or to call evidence.  The defendant is entitled to insist that the prosecution prove the case against her if it can.  The prosecution bears the onus of proving the guilt of the defendant beyond a reasonable doubt and the fact that the defendant did not give evidence is not evidence against her.  It does not constitute an admission of guilt by conduct and it may not be used to fill gaps in the evidence led by the prosecution.  It proves nothing at all and I do not assume because she did not give evidence that adds in some way to the case against her.  It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt and most certainly does not make the task confronting the prosecution any easier.  It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.
6. The defendant has a right to silence.  That the defendant exercised that right is not evidence against her.
7. The case against the defendant is an entirely circumstantial case.

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

In the context of this trial, I do not consider any other directions are required. 

Discussion 

Perhaps unusually, this is a trial where, in reality, very few of the facts are in dispute. 

The complainant is Levanta Pty Ltd. 

The defendant was an employee of Levanta Pty Ltd (exhibit B) at least until she left the premises early on 20 November 2018 and her position was terminated by the general manager, Ivan Woodford, some time prior to 3.30 pm on 20 November 2018 (T2-62). 

The defendant was the owner of Westpac Bank account NO218871 BSB 036-187, and on 20 November 2018 the sum of $134,810.94 was remitted to that bank account by Levanta Pty Ltd (exhibit B paragraphs 2, 3 and 4).

The process by which that identified sum of $134,810.94 was remitted to the defendant’s bank account was twofold:- 

1. The bank account payee details for the creditor Aircare Engineering Pty Ltd were changed (i.e., “updated”) in the MYOB EXO accounting software, to the defendant’s Westpac Bank account details at 8.34 am on 15 October 2018 (Kathy Davis T2-7).
2. On 20 November 2018, a payment run on the MYOB EXO software, including the $134,810.94 to be paid to Aircare Engineering Pty Ltd, was prepared by Sharon Marshall, approved by financial controller Michelle Moran and forwarded to the complainant’s bank, NAB where it was processed to the various payees (including Aircare Engineering) (Sharon Marshall T2-26-28).

In terms of the elements of the offence there is no doubt that: 

1. The defendant obtained the sum of $134,810.94 from Levanta Pty Ltd.
2. The defendant was, at the relevant time, an employee of Levanta Pty Ltd.
3. The yield to the defendant was at least $100,000.

The element in dispute, which the prosecution must prove, beyond reasonable doubt, in this circumstantial case, is: 

Did the defendant act dishonestly to obtain the money? 

Relevantly, at the time the bank account details of Aircare Engineering Pty Ltd were altered in Levanta’s MYOB EXO software, “audit features of MYOB EXO had not been enabled by Levanta so [Momentum Software Solutions] were unable to confirm what information had been updated and by whom” (Kathy Davis T2-12 LL6-9).  That audit function had to be enabled at the time the relevant entry was made (i.e., at 8.34 am on 15 October 2018) (Kathy Davis T2-12 L35). 

What follows, then, is that it is necessary for the Crown to prove, beyond reasonable doubt, that the defendant changed or caused to be changed the records in MYOB EXO to enable the moneys to be deposited in her bank account. 

The Crown relies on various aspects of the evidence in seeking to persuade this court, beyond reasonable doubt, that it was the defendant who made or caused the relevant change to be made to the banking details of Aircare Engineering Pty Ltd in Levanta’s MYOB EXO software.  Those aspects include:- 

1. The details were changed on 15 October 2018 (I note the defendant was still employed at that stage with Levanta).
2. The defendant was the beneficiary of the change and actually received the funds into her bank account (albeit briefly).
3. The bank account details into which the funds were received were a different account to the defendant’s bank account details in her employee details with Levanta Pty Ltd (exhibit 7).
4. There is evidence in Levanta’s email records that the defendant scanned documents which included the impugned account details and sent them from her business email to her personal email (exhibit 23).  However, the Crown submits that there is no evidence to indicate anyone else at Levanta Pty Ltd actually had access to that information.
5. The defendant’s position as a purchasing officer at Levanta gave her sufficient access to MYOB EXO to make the necessary changes (Namrata Bhola T2-47).
6. The defendant had emailed Aircare Engineering Pty Ltd seeking an invoice on 16 October 2018 (T3-48-49;  exhibit 14) which was unusual (T3-48 LL21-26).

The Crown, correctly in my view, submits further that if it is proved beyond reasonable doubt that the defendant caused the change in the account payee details of Aircare Engineering Pty Ltd, there could be no honest explanation for the change. 

In my view the Crown case comes down to this – can the Crown exclude beyond reasonable doubt, that someone other than the defendant was responsible for the changed bank account details? 

In the absence of an audit module, the best the Crown case gets is opportunity for the defendant and (it is not disputed)  benefit. 

However, given the process for paying creditors, as outlined by Sharon Marshall, the date any invoice to Aircare Engineering Pty Ltd would be paid depended entirely on cashflow and whether there was pressure to pay by Aircare Engineering (T2-34).  So the timing of any payment was very uncertain.  Whether a payment would be made to the altered payee details was also dependent on Ms Marshall not checking creditor payee details (T2-42). 

The defendant while working at Levanta Pty Ltd was in a same sex relationship, working for a company whose owners had fundamentalist religious beliefs (including in respect of the issue of same sex relationships).  However, I accept the prosecution submission that there is no evidence of any conspiracy to “get” the defendant. 

What does follow, however, in my view, is that the Crown cannot exclude the reasonable hypothesis, beyond reasonable doubt, that someone other than the defendant, for whatever reason, altered the bank account details for Aircare Engineering Pty Ltd in the MYOB EXO software.  The relevant bank account details of the impugned account of the defendant were on Levanta premises at some stage (David Tisdall T4-7-8) and potentially accessible.  There is no evidence, further, that the defendant was ever aware that the funds had been deposited in her account before they were frozen pursuant to the prompt efforts of the NAB anti-scam team. 

The reasonable hypothesis available, consistent with innocence, that a person other than the defendant was responsible for the change in bank account details, would undoubtedly be excluded if there was an audit trail which identified the defendant’s access details as being responsible for the change of account payee details.  That audit function did not exist at the relevant time and cannot be applied retrospectively to the MYOB EXO database.  It follows that although the transaction may well be considered to be highly suspicious, I cannot be persuaded beyond reasonable doubt that it was the defendant who was responsible. 

It follows that the defendant should be found not guilty of count 1, fraud as an employee, to the value of at least $100,000.  The defendant is discharged.  I order that the exhibits be returned to the Crown. 

Thank you all for your assistance and particularly your detailed written submissions which I appreciated greatly and, as you saw, Mr Whitbread, adopted gratefully during the course of those reasons.

MR WHITBREAD:   Yes, thank you, your Honour.

HIS HONOUR:   Thank you for that.  Nothing else? 

MR WHITBREAD:   There is nothing else.  Thank you, your Honour.

HIS HONOUR:   Thank you.  Adjourn the court.  The defendant is discharged.

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