Dillewaard v Queensland Police Service [2012] QDC 93

DISTRICT COURT OF QUEENSLAND CITATION: Dillewaard v Queensland Police Service [2012] QDC 93 PARTIES: ROBERT PETER DILLEWAARD (Appellant) V QUEENSLAND POLICE SERVICE (Defendant) FILE NO/S: 16 of 2011 DIVISION: District Court at Maroochydore PROCEEDING: Appeal ORIGINATING COURT: Gympie Magistrates Court DELIVERED ON: 8 May 2012 DELIVERED AT: Maroochydore HEARING DATE: 11 April 2012 with written submissions received up to the end of April 2012 JUDGE: J.M Robertson DCJ ORDER: 1. Appeals against convictions are dismissed with the exception of Count 21 upon which the appellant is convicted on a rehearing 2. Appeal against sentence allowed 3. Set aside the orders and in lieu order: Charges 4, 9 each two months imprisonment Charges 5, 6, 18 each one month imprisonment Charges 13, 14, 15, 19 each four months imprisonment Charge 21 six months imprisonment All sentences to be served concurrently and all suspended from today’s date for an operational period of 12 months. The appellant will pay to the Minister of Education by way of restitution the sum of $755.04 within three month’s of today’s date in default one month imprisonment Declare that the defendant has spent 3 days in pre- sentence custody between the 24 May 2011 and 27 May 2011 as time already served under the sentence -- 1 of 46 -- 2 CRIMINAL LAW- Appeal against conviction on a number of grounds- whether learned Magistrate misdirected herself as to the law and made errors and/or misunderstood the facts- whether she erred in permitting amendment of one count late in defence case- where appellant charged with 20 counts of fraud involving misuse of corporate card issued to him for official purposes in connection with his duties as Principal of small state school and one count of stealing as an employee- where he was acquitted of 11 counts of fraud but convicted of all other charges- whether her Honour misdirected herself in relation to mistake of fact and/or claim of right- whether findings as to creditability were sustainable CRIMINAL LAW- Appeal against sentence- where appellant was 45 with no previous convictions- where as a result of his convictions he had lost his long term career as a teacher and substantial superannuation benefits- where her Honour imposed a sentence of 6 months on each charge to be served concurrently and set a parole release date after (5) weeks- where her Honour did not explain why the sentence was so structured- whether a sentence not involving actual custody was within range- where amount defrauded or stolen was $1904.55 and $755.04 remained outstanding Legislation Criminal Code 1899 Justices Act 1886 Cases Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Mbuzi v Torcetti [2008] QCA 231 Melbourne v R (1999) 198 CLR 1 R v Bailey [2003] QCA 506 -- 2 of 46 -- 3 R v Ghosh [1982] QB 1053 R v Maher [1987] 1 Qd R 171 Shepherd v R (1990) 170 CLR 573 COUNSEL: Mr S. Courtney for the appellant Mr G. Cumming for the respondent SOLICITORS: Neilson Stanton & Parkinson for the appellant Director of Public Prosecutions for the respondent [1] On 10 May 2011 after a trial extending over three days, the appellant was convicted in the Gympie Magistrates Court of nine counts of fraud and one count of stealing as a servant. He was acquitted on eleven other counts of fraud. All of the fraud charges relate to the appellant’s dishonest use of a corporate debit card from late 2006 until 2007 which had been issued to him many years earlier by his employer, the Minister for Education, for use by him to make official purchases on behalf of the Kandanga Creek Primary School where he had been Principal since 2002. On 24 May 2011, the appellant was sentenced by her Honour Magistrate Baldwin on each count to six months imprisonment with parole release date set on 27 June 2011 which is after serving five weeks or 20% of the head sentence in actual custody. The appellant was released on bail pending appeal after serving three days in custody. He appealed to the Gympie District Court against both conviction and sentence and the appeal was transferred to the Maroochydore District Court for hearing which took place on 11 April 2012. Both parties have made further written submissions since the hearing. [2] There are an extensive number of grounds of appeal which are expanded upon in the outline filed on 10 August 2011 by Mr Courtney who has represented the appellant throughout. At the hearing he sought leave to file further submissions, particularly in relation to a very helpful table that Mr Cummings had included in his outline which was dated 29 November 2011. Mr Courtney filed a brief written submission but incorporated into Mr Cummings’ table a number of submissions on the evidence and in turn Mr Cummings then provided a further amended table which included his further responses which were underlined by him and placed in square brackets. [3] Before turning to the grounds and the circumstances of the offending, it is necessary to briefly mention the law applicable to appeals of this nature. -- 3 of 46 -- 4 [4] The law is well established. An appeal is to be way of re-hearing on the evidence given in the proceedings before her Honour: s 223(1) Justices Act 1886. The appellant has not sought to adduce fresh evidence. Her Honours’ conclusions on the evidence do, to a significant extent, rely upon her findings as to credit and reliability. In those circumstances, this Court should afford respect to her decision “bearing in mind the advantage she had in seeing and hearing the witnesses give evidence”; but this court is “required to review the evidence, to weigh the conflicting evidence, and to draw (its) own conclusions”: Fox v Percy (2003) 214 CLR 118 at [25]; Mbuzi v Torcetti [2008] QCA 231, per Fraser JA at [17]. The Circumstances of the Offending [5] It is common ground that throughout the relevant period (late 2006-late 2007), the appellant was Head Master of a very small school at Kandanga Creek and in possession of a corporate MasterCard debit card issued to him by the Queensland Government which could be used only for official purposes associated with his duties. The evidence established that for the last term of 2007, the appellant was on leave and his wife, Samantha Domine (who was then the only other teacher with the appellant in what was a two teacher school) acted as Principal although she never had use of the corporate debit card. [6] It was not disputed that in relation to the 20 counts of fraud the appellant in fact used the card to incur the impugned debt. It was common ground that he had training in the proper use of the card. In any event, his own evidence was clearly that he knew at all times that the card could not be used for private purposes. [7] As I have noted, Mr Cummings provided a very helpful table in his first outline which summarises the nature of the allegations in relation to each count (including the counts which resulted in acquittals), her Honour’s reasons, and the result. To that has now been added in Mr Courtney’s further submissions dated 19 April 2012 and the additions made subsequently made by Mr Cummings to which reference is made above. [8] It was also common ground that a reconciliation process was undertaken monthly between the appellant and the part-time administration officer, Jeanna Maher, where he would produce receipts relating to the use of the card and she would assign the -- 4 of 46 -- 5 expenditure to appropriate budget allocations within the school’s accounting records. For the last term of 2007, Miss Domine performed this task. [9] All of the fraud charges were based on s 408C(1)(e) and (2)(b) of the Criminal Code. Charge number 4 as an example (and which was the first charge on which he was found guilty) is in these terms: “That on the 10th day of December 2006 at Noosaville in the state of Queensland one Robert Peter Dillewaard dishonestly caused a debit to accounts to the value of one hundred and seventy-three cents to Minister for Education and Robert Peter Dillewaard was an employee of Minister for Education.” [10] The charge of stealing as a servant was alleged to have been between 30 January 2007 and 10 September 2007. After the appellant gave evidence, and during the defence case the prosecution applied for and was granted leave to amend the charge by extending the place and date. The defence objected to the amendment, and the amendment (which in fact was not formerly made on the bench charge sheet) is the subject of a separate ground of appeal. I now set out Mr Cummings’ table with the dates inserted by me based on my review of the transcript and the exhibits with both his and Mr Courtney’s additional comments: Table annexed to the Respondent’s Outline - With additions made by Appellant Subsequent additions on behalf of the Respondent are in square brackets and underlined. Charge and date Nature of Allegations Reasons for Verdict Verdict Comments on behalf of the Appellant The corporate card concerned is not a credit card. It is a debit card drawing funds from the school account when transactions are conducted. Day 1, page 6. 1 19.10.06 The Appellant had purchased a bag of Vittoria coffee from Office Works for $23.48. This was a private purchase. It was part of his functions as a principal to ensure there was coffee for visitors at the school. It was not proved not guilty -- 5 of 46 -- 6 on the evidence that this purchase was dishonest by the ordinary standards of the community. 4.4.41-4.6.2 2 and 20 9.12.06 The appellant had purchased $225 worth of fish and $565 worth of meat for a end of year school function, held at his home at the end of 2006. This was a private purchase. It was a legitimate use of school founds to hold this function and hold it at the appellant’s home. While it may not have been the most responsible use of school funds that was not the issue. The magistrate could not be satisfied that the use of the credit card for this purchase was objectively dishonest. 4.6.3 – 4.6.35 not guilty 3 9.12.06 The appellant used his corporate credit card to spend $13.95 at Village Shoe Repairs. This was a private purchase. The appellant denied this was for shoe repairs, but thought it might be for engraving presentation gifts for year 7 students. The prosecution failed to prove that this was a dishonest expenditure of school funds 4.27.35. not guilty 4 10.12.06 The Appellant used the corporate credit card to purchase meat and soft drink from Woolworths for 100.73. This was a private purchase. The Appellant gave evidence that this meat was purchased for an end of year break up party or barbeque. (Comment: the evidence in relation to this charge was different from that in guilty The timing of the purchase, 10 December 2006, is relevant. It is consistent with the Appellant’s explanation. [It is consistent only with end of school year gatherings not being uncommon; that was not in dispute.] [The Appellant was only -- 6 of 46 -- 7 relation to charges 2 and 20. In relation to those charges there were several bodies of evidence which proved that the meat and fish had been used at an end of year function.) In relation to charge 4, no other staff member could verify the barbeque or party nominated by the appellant had occurred; in particular one involving the transportation of children by parents as asserted by the appellant 4.8.10. Moreover the nature and quantity of the meat as well as the a purchase of a single bottle of soft drink and fruit juice was not consistent with the claims made by the appellant 4.8.11-40. The appellant’s demeanour when giving evidence reflected a contrived and reconstructed story 4.8.48. The magistrate found this was a personal purchase and therefore dishonest. Further, that it might be inferred that the appellant knew that is was a dishonest purchase 4.9.30. “quite sure” it was for a trip to the Noosa River for a barbeque 2.91.52]. [Such functions were usually held on a Wednesday or a Thursday, but the Appellant bought the meat on a Sunday 2.132.40.] The Appellant swore that he “thought” sausages for the children were bought at the Kandanga Bakery and the subject meat was for the parents who transported the children to the Noosa River. 2-91 & 92. In cross examination the Appellant swore the soft drink and juice was only for the adults. 2-133 [The juice was for adults who did not drink soft drink 2.133.10-20.] When cross examined as to who attended the break up the Appellant stated all of the children and 12 adult staff & helpers. 2- 132. [The Appellants evidence as to the number of adults present and reasons for their attendance varied: - To avoid the cost of buses for transport some parents volunteered 2.91.40- 58. - Quite a few parents were coming 2.91.58. - Unsure of the numbers, all of the children (40, 2.134.20- 30 ), all of the staff (3 or 4 depending if bus used 2.134.40) half a dozen adults and half a dozen helpers 2.132.40-50. -- 7 of 46 -- 8 - Probably 50-55 people 2.132.50.] Ms Maher (2-41) and Ms Domine (3-14) gave evidence that parents were invited to the break up functions. [However Mrs Maher never attended such events 2.41.48.] [Mrs Maher also said that the docket was endorsed “healthy food” in handwriting which was not hers and was therefore the amount of the docket was debited against the healthy food for kids grant 2.22.50-60.] [Ms Domine remembers that the break up days were where parents were invited as well as students 3.14.45.] Despite this evidence the Magistrate stated that the Appellant’s “scenario was not supported by the evidence”. Decision 4-8. Ultimately Her Honour concluded that “prima facie it appears clearly the purchase of food was not official business...” D4-8. Her Honour referred to the purchase of the meat is in “strange quantities”. D4-9. I submit the quantity of meat is consistent with what would be required for 12 adults. For example $51 of t-bone was purchased. At say $25 a kilogram that would equate to 2 kilograms. In relation to the juice and soft drink I submit not all adults would partake. [It is submitted that fundamental to the -- 8 of 46 -- 9 magistrates findings were findings of credit. The magistrates findings as to credit should be given due weight. There are significant inconsistencies within the accused account. He starts off suggesting a couple of parents may have come along as a consequence of transporting children. This climbs to about a dozen parents and several staff members. The size of the total gathering is put at 50 or 55. Then the appellant suggests that as many as 40 children attended. All of these points suggest the cuts of meat selected and volume does not match them being purchased for the gathering variously described by the Appellant. The Appellant’s case is further weakened by the evidence of Ms Domine who suggests that the focus of the gathering was not student orientated but adult orientated. This charge has been proved] 5 14.02.07 The Appellant purchased sunscreen and flowers on Valentines Day 2006. The prosecution initially alleged both items were for personal use, but ultimately confined the charge to the The Appellant denied the flowers were for his partner, but could not recall who the flowers were for. His partner(Ms Domine) gave evidence confirming that they did not celebrate Valentines Day as a couple. The magistrate guilty The prosecution appears to rely very heavily on the fact the flowers were purchased on Valentine’s Day. (I note flowers purchased on 9 December 2006 were not the subject of a charge. Exhibit 3 & 2- 93) [It being Valentines day is relevant at a number of levels. It is a date which readily stands out. It being -- 9 of 46 -- 10 purchase of the flowers. noted the personal interest Ms Domine had in supporting the appellant. The magistrate, having seen Ms Domine give evidence, made adverse findings about her credit; finding she was contrived and controlled in giving her evidence and her answers were suggestible of someone not intent on telling the truth 4.10.50. The magistrate also made adverse findings of credit in relation to the appellant’s evidence in relation to this charge, finding the appellant did not present as a particularly honest or straight forward witness 4.11.20. The magistrate found that this was a personal purchase and therefore dishonest by the ordinary standards of the community. Further, that the appellant must have known it was dishonest. Valentines day therefore adds considerable weight to the evidence of Green(2.51.20-30) that she does not know of anyone who received flowers at the school on Valentines day that year.] The Appellant gave evidence that as a small school in a small community flowers on occasions would be purchased. 2-93. His inability to recall why these flowers were purchased is attributable to the passing of time. [ However, Green’s uncontested evidence was that usually flowers were given at school concerts at the end of the year or when a family was leaving (2.51.20-30). Moreover, the magistrate was right to find the Appellant’s evidence unconvincing. His evidence at 2.93.35 was led and his answers conspicuously worded. He did not deny knowledge of the flowers, rather he agree with the proposition that he did not recall with precision the purpose for which the flowers were purchased. He did not say they were not for personal use, just that they did not go to Samantha.] The flowers were purchased at 8.08 am. Consistent with the Appellant being on his way to school. On the prosecution version the flowers must have been a gift for his wife. No one gave evidence of seeing them at the school. If they -- 10 of 46 -- 11 were taken home on the day they were purchased, where were they during school hours? [It is not a logical imperative that the flowers were a gift for the Appellant’s wife, nor is that conclusion a link in any chain of reasoning towards guilt. The absence of the flowers from the school is more consistent with them being retained by the Appellant than being utilised for school purposes.] Ms Domine gave evidence that whilst she would receive flowers, the couple did not celebrate Valentine’s Day. 3-15. [Given the nature of the Appellant’s evidence as outlined above, Ms Domine’s evidence does not preclude the flowers being purchased for private purposes.] I submit that in isolation the fact that the flowers were bought on Valentine’s day is not enough to infer guilt in the context of the rest of the evidence.[This was but one strand in the line of reasoning towards guilt.] 6 20.03.07 The appellant purchase a set of cot sheets from the store Noosa Bubs for $59.90. This was a personal purchase. The appellant claimed that either staff or persons in the P and C had suggested that he buy this as a going away present for his partner, Ms Domine (who had also taught at the school before going on maternity leave). Seemingly, he was to buy it out of his own funds and be guilty The prosecution relied on cot sheets being inconsistent with the needs of a school to infer guilt. The Appellant gave evidence that he was invited by a member of the P&C to use the school’s corporate card to buy a gift with the P&C reimbursing the money later. He could not say if the money was in fact -- 11 of 46 -- 12 reimbursed 4.12.11. The magistrate noted that according to the appellant, no limit had been placed on the amount to be spent on the present 4. 12.10 and he decided to use the corporate credit card. Further, Ms Watson, a member of the P and C denied that this is how a present would have been organised 4.12.40- 50. The magistrate found that once again Ms Domine did not present as a honest witness 4.13.5. The magistrate concluded that this was a private purchase and hence dishonest and the appellant must have known it was dishonest. reimbursed. 2-94.[More precisely the Appellant said he was approached by a member of staff or the P and C to get a present for himself and his wife. He would then be reimbursed 2.94.25. Mrs Watson gave evidence that the procedure followed was that a person would use their personal credit card and be reimbursed and not use the school credit card 2.65.43-48. There was therefore not likely to be any discussion about the use of the corporate credit card. Nor could the Appellant have been likely to understand that he was being invited to use his corporate credit card; this was P & C business, not school business. His use of the corporate credit card obviated the need to seek re- imbursement, which he never followed up 2.94.40.] P&C donations go into the school’s account. 1-41. The card concerned is a debit card that draws funds from that account. 1-6. I submit the proposal to use the card for the sheet purchase should be viewed in that light. The prosecution called Ms Watson who was the P&C president until the end of 2006. When asked whether the P&C would have proposed what the Appellant claimed she replied “Absolutely no”. 2- 65. Her Honour relied on that answer when convicting the Appellant. D4-13. Significantly Ms -- 12 of 46 -- 13 Watson was not even on the P&C committee at the time of the purchase in 2007. 2-65. [However she remained a member of the P & C after ceasing to be president and still had no knowledge of the arrangement asserted by the Appellant 2.65.33; which is conspicuous given the size of the school.] The Appellant called Mr Witterman who was the president of the P&C in 2008 & 2009. He gave character evidence. When asked specifically whether the P&C would purchase a gift for Ms Domine on the birth of her baby he replied that they “would have done something like that for Samantha”. 3-7.[The issue is not whether the P&C would buy such a present, the issue is whether it did in fact do so and whether this entailed the use of the corporate credit card. Even if the purchase of the gift at the behest of the P&C cannot be excluded, it does not follow that the Appellant was authorised to use the corporate credit card for that purpose, nor that he could rationally have thought that he could.] The entry on the bank statement, exhibit 8, lists the purchase as being made at “Noosa Bubs”. I submit a person minded to dishonesty would not have made a purchase so likely to draw attention.[This submission assumes that the Appellant appreciated that at the time of the purchase this form of entry -- 13 of 46 -- 14 would appear on the statement for the corporate credit card; there is no evidence of such an expectation. This submission fails to take into account the sporadic nature of the auditing process; that is it should be inferred that the Appellant would have been acutely aware that the odds of this entry not being queried under then prevailing auditing practices were very much in his favour.] When considering the credibility of the Appellant’s version I submit the Court needs to factor in this was a small school where things may be done on more casual basis than a larger school. 7 and 8 26/27.4.07 The Appellant bought meals using his corporate credit card when attending a conference on 26 and 27 April 2007. He spent $30.40 and $34.50 respectively. More than one meal was purchased on each occasion and the extra meals were purchased for Ms Domine. These were a private purchases. The appellant claimed that these were meals he purchased at the conference. Ms Domine had attended the conference, but had used her own food to meet her dietary preferences. The magistrate once again found Ms Domine lacked credibility; she claimed not to have attended the conference 4.14.30- 50. The magistrate preferred the evidence of the appellant over that of Ms Domine and could not exclude, on the evidence, the possibility that not guilty -- 14 of 46 -- 15 the meals had been purchased only for consumption by the appellant 4.15.5. While the magistrate had some doubts about the veracity of the appellant, the magistrate was left with a doubt as to whether the purchases had been proved to be dishonest and therefore found the appellant not guilty of these charges 4.15.20-20. 9 9.06.07 The appellant purchased an electric oil filled heater which he took home for private use. He spent $119. The classrooms (of which there were only 2) had reverse cycle air- conditioning and wall mounted heaters. This was therefore, a private purchase. The appellant claimed that he purchased the heater for use in a demountable classroom and had taken it home for personal use during the holidays; this was a standard practice at the school. Ms Maher, an administrative officer, said the school was small; an office and two class rooms. She had noted that a heater could not be located during stock take and had later been returned 4.15.40-60. Ms Green, who also worked at the school, denied there had ever been an oil heater at the school 4.16.12. The magistrate guilty The purchase was made on 29 June 2007. Air conditioning was not fitted to the school until late 2007. 2-67[This reference comes from the evidence of Watson. Watson gave no evidence in chief about oil heaters2.65. Under cross examination she agreed that there discussion about getting air conditioners extending later in 2007, in particular in relation to the demountables 2.67.30. On the other hand Green thought the air conditioners had been installed by then, but could not be certain 2.52.50, but was fairly sure 2.53.4. She was not aware of the purchase 2.52.55 and in light of the heaters they already had there was no need to purchase them 2.53.5. She never saw any heaters 2.53.8 and never had any conversation with the Appellant about heating requirements 2.53.10. Green is also adamant that there was no heater -- 15 of 46 -- 16 made findings of credit in relation to both Ms Maher and Ms Green; finding both to be credible witnesses. She therefore concluded that the heater had never been used in the classroom but taken to the appellant’s home instead 4.16.40-52. Therefore, it was a personal purchase, objectively dishonest and the appellant knew it was dishonest. ever in the demountable room 2.59.9 and the room was not that big 2.59.25. ] The Appellant gave evidence that he tried the oil heater in the demountable classroom because it had a timer to turn it on before school started and it was safer for the children. 2-97. (I submit that explanation made sense.) [It is submitted that if this was the case why can no one recall a discussion along those lines with the Appellant.] When he found it was too small for the classroom[It is submitted this is inconsistent with the level of thought the Appellant claims he put into the purchase of such a heater.] he entered the item in the loans register and took it home. (The existence of a loans register is confirmed by the auditor. 1-49) Ms Maher recalled the purchase of heaters. 2-23 [However she only assumed they were for classrooms and could not recall a conversation with the Appellant about the heaters. 2.23.30-35]. She stated during a stock take she could not find one of them. She could not say it was the heater the subject of the charge. 2-23. She was told by the Appellant or another employee that the heater was at the Appellant’s home. 2-23 to 24. (The appellant was not therefore acting surreptitiously in taking the heater home.)[This conclusion does not follow at all.] She [thinks she 2.24.44] recalled seeing -- 16 of 46 -- 17 an oil heater at the school towards the end of the year. 2-24. The prosecution called a teacher aid, Maria Green. Her Honour relied on Ms Green’s evidence to convict the Appellant. I submit though her evidence was proven wrong. She was “fairly certain” the school had air conditioning by 2007 so there was no reason by buy a heater. 2-53. (The school was not air conditioned at time the heater was purchased. 2- 67.) She also stated she was “definitely” not aware of any heaters being purchased for the school in 2007. (Ms Maher says otherwise. 2-23.) Ms Green did say that there was never an oil heater in the classroom used by the Appellant. 2- 59. On the Appellant’s version though it cannot be excluded that the heater was not in the classroom for long. (Her Honour at D4-16 wrongly attributed to Ms Green that she had looked in the storeroom for the heater but “it simply was not there”. Ms Green’s evidence was the she “thinks she may have” looked in the storeroom. 2-60.) [Green gave this answer in the context of what she did once she had become aware of the purchase of heaters. 2.60.35 In that context she said that she may have looked in the storeroom to see if it was there. 2.60.41 She went onto say that one oil -- 17 of 46 -- 18 heater was returned when the auditors were coming, it just suddenly appeared in the storeroom. 2.60.40- 51] [ When taken in its entirety, Green appears to be saying she may have looked in the storeroom when she learnt of the purchase but definitely did look in the storeroom about the auditors were coming and an oil heater suddenly appeared. This carries with it the inference that Green had looked in the storeroom previously and there had been no oil heater. Her honour was entitled to draw this inference. There is no error in her doing so having presided over the trial.] The date of the offence is the day the heater was purchased. I submit the evidence cannot exclude the Appellant’s version that he bought the heater intending to use it in the classroom but took it home later in accordance with “loans register” practice.[The appellant’s version should be rejected. Giving due deference to the advantages of the trial magistrate, greater weight can and should be given to the evidence of Green, who was more directly concerned with the purchase of items such as heaters than Watson. Taking all the circumstances into account, the Appellant’s version should be rejected as implausible.] 10 The appellant had made a $166.48 There was no evidence that any not guilty -- 18 of 46 -- 19 20.06.07 purchase from Noosa Sports Power. This purchase included stubby holders. This was a private purchase. of the items purchased ever found their way to the appellants home. Further, while the appellant’s claim the items were purchased as prizes for a school raffle seemed the least likely scenario, this was an honest possibility which had not been excluded on the evidence 4.17.45 (that is this was a hypothesis consistent with innocence which had not been excluded on the evidence,). 11,16 and 17 Dates unclear from record The appellant had used his corporate credit card to buy airfares and pay for accommodation and groceries in relation to a school excursion to Great Keppel Island. He brought his partner, Ms Domine, with him and there two young children. He paid for her air ticket, accommodation and groceries as well (his children travelled and were accommodated for free because of their ages). These were private purchases. The excursion was legitimate in the circumstances of the school 4.24. While some might consider the expenditure extravagant, that was not the issue 4.25.5. The appellant was going on long service leave and Ms Domine was to take over following the excursion, it was therefore leg mate for her to attend the excursion4.25.35. Ms Domine had a long association with her school and helped cooking meals 4.25.35.60. There was no extra not guilty -- 19 of 46 -- 20 expense associated with bringing the appellant’s children on the excursion 4.26.1-10. The magistrate, once again, made adverse findings in relation to the evidence of Ms Domine; finding Ms Domine’s evidence about the extent of her involvement in preparing meals lacked credibility 4.20-31. Nonetheless the magistrate found that the prosecution had failed to prove that taking Ms Domine on the excursion was either objectively or subjectively dishonest. 12,13,14 & 15 29.08.07-1.09.07 The appellant attended a principal’s conference at Rainbow Beach 150 kilometres from home on 30 August 2007. The conference concluded on 31 August 2007. The appellant paid for accommodation on 29 August 2007 (charge 12, $135), 30 and 31 August (charges 13, $270) and on 1 September (charge 15 $185) using his corporate credit card. In relation to charge 12, the appellant claimed that he had gone up the night before the conference commenced. The magistrate found this to be an honest use of the credit card. Charges 13,14 and 15 In relation to charges 13 and 15, the appellant accepted that the accommodation for 31 August and 1 September was for personal purposes. He gave evidence claiming that his use of the corporate credit card for the 31 August not guilty guilty The Appellant gave evidence that he mistakenly used his corporate card for what he was aware at the time was private expenditure. When considering these matters I submit recourse should be had to count 19. (When the Appellant realised he mistakenly paid for private groceries on the corporate card he told Ms Maher and repaid -- 20 of 46 -- 21 He also paid $108.40 for groceries (including cigarettes) while there (charge 14); again using his corporate credit card. These were all personal expenditures. accommodation was by mistake. He gave evidence offering no explanation as to how he came to use the credit card to pay for the accommodation on 1 September 2007; suggesting he had used the card by mistake. The appellant gave evidence making a similar claim in relation to the purchase of groceries which he accepted were for private use (charge 14). The magistrate made a number of findings of credit adverse to the appellant; the record of the purchase of the groceries was incomplete when handed in for reconciliation by the appellant; the portion recording the purchase of cigarettes had been removed giving rise to questions as to whether the purchase was known to be subjectively dishonest 4.19.50- 60. The magistrate once again made adverse findings of credit in relation to Ms Domine, finding she lacked credibility, in part, because she the money.) [If this line of reasoning holds true then the Appellant picked up a mistaken use of the corporate credit card in the sum of $303.99 within two weeks, but never realised he had made two incorrect purchases one for $270 and one for $185. Moreover, he never noticed that such sizable debits had not been made to his own bank account even though he did look at his banks statements (as opposed to scrutinizing them) 2.117.15 and would have expected the transactions to appear there.2.117.20] Accommodation – Counts 13 & 15 The evidence revealed the accommodation was paid in three separate amounts. A deposit, a payment on the Friday and a payment on the Sunday. The Appellant gave evidence that when he checked in “they” required a “swipe” of a credit card and he produced the corporate card. When it was time to pay for the accommodation though he swore he “got them to split the bill”. He could not explain how the personal component of the accommodation was charged to corporate credit card. 2-105. [The evidence in relation to this charge needs to be seen in the context of the Appellant being unable to give any explanation for how his private accommodation was paid -- 21 of 46 -- 22 denied that the groceries had been purchased 4.20.10. The magistrate concluded that the appellant’s claim that he had inadvertently used the wrong credit card three times in succession lacked credibility 4.20.55, she therefore rejected that claim and found that s24 had been excluded by the prosecution, even if it had been raised 4.20.40 – 4.21.40. Therefore, the appellant’s used of the credit card to pay for personal accommodation on 31 August and 1 September and his purchase of groceries was also a personal purchase; these three uses of the credit card were therefore dishonest and the appellant knew them to be dishonest 4.21-40- 60. for on the corporate credit card 2.105.41. Moreover, the method of operation of the corporate credit card is different from the Appellants debit card. He cannot simply swipe the corporate credit card; he has to sign 2.116.55. On the other hand his personal debit card utilised only a PIN 2.117.7. As already pointed out, the corporate credit card is actually a debit card. It is submitted it follows that the explanation given by the Appellant is utterly implausible and should be rejected. IGA – Count 14 The Appellant could not explain why private groceries were charged to his corporate credit card. He did though hypothesis that a mistake was made because he had a credit card similar in colour to the corporate card. 2-106 Submission When considering these matters I submit recourse should be had to count 19. When the Appellant realised he had mistakenly paid for private groceries on the corporate card he told Ms Maher and repaid the money. I submit that transaction supports that the Appellant is open to make an honest mistake with his corporate card. I submit that having regard to the evidence of good character the prosecution cannot exclude that a -- 22 of 46 -- 23 mistake was made, or in the case of the accommodation, the merchant mistakenly charged the corporate card that had been “swiped” on check in.[The evidence of good character is of marginal relevance in this case. The Appellant does not deny that he incorrectly used his corporate credit card, he offers no explanation for how he did so. The check-in swipe scenario is inconsistent with how the corporate credit card was operated(signature on payment) and its nature as a debit card (it is not likely that a swipe of government debit card for an unspecified amount and unsigned could occur). Otherwise, my submission is the same as for charges 13 and 15.] In particularly I submit that if the Appellant had been so overtly dishonest in August 2007 he would have attempted to repay the money at the end of 2007 prior to the auditor attending the school.[It may be inferred that the Appellant was dishonest because he had insufficient funds to cover his personal expenditures, it follows that repayment would necessarily follow some time afterwards and would only serve to highlight his dishonesty. 18 28.10.07 The appellant used his corporate credit card to buy $108 worth of groceries which included $11.96 for shampoo The appellant nominated when asked (4.22.31) that he had to reimburse the $11.96, which he did not in fact do 4.22. guilty When asked in evidence to explain the addition of shampoo with the school purchase the Appellant stated “I am thinking that I have just put it in there and thought I will fix it up -- 23 of 46 -- 24 This was a private purchase.. The appellant accepted that the shampoo was a personal purchase and that he had failed split the bill as he usually did 4.22.25-35. The appellant was therefore dishonest in making this purchase and knew it was dishonest at the time, s24 was disproved 4.1-20. when I get back to school” 2-107 [The Appellant does not say this is what in fact happens; rather it is a reconstruction on his part. Clearly he knew at the time that the purchase was personal and hence not an authorised use of the corporate credit card. Subjective dishonesty has been proved.] Exhibit 20 noted that there was a reimbursement of $11.96 for shampoo “incorrectly” included on the docket. (Ms Maher stated that entry was in her handwriting. 2-19. She later expressed doubt as to whether the reimbursement was in fact made. 2-44 & 2-45.) In context I submit the prosecution cannot prove the subjective element of dishonesty. 19 13.11.07 The appellant spent $303.99 on groceries using his corporate credit card. This was a private purchase. The appellant accepted that these items were purchased for private use. He asserted he had used the credit card by mistake. The magistrate accepted that mistake of fact was raised but found that it had been disproved, in particular because of the evidence of the distinctive markings on the corporate credit card issued to the appellant. Therefore this use of the credit card was dishonest and he knew it to be guilty This purchase was made on 28 November 2007. Ms Maher confirmed that the Appellant told her he had mistakenly used his corporate card for a private transaction. 2-19 & 2-46. [On the other hand the Appellant confirmed that operation of the corporate credit card for this purchase required him to sign for the purchase 2.121.20-40 and that he had used it to purchase groceries for he, his partner and his son.2.121.25 Moreover he only re-reimbursed it once the statement came out and he was questioned about it. 2.121.50-60] Exhibit 21 revealed the money was repaid on 11 -- 24 of 46 -- 25 dishonest. December 2007. About 2 weeks after the transaction. I submit the evidence cannot establish either limb dishonesty. I also submit this mistake is relevant to counts 13, 14 & 15. [The Appellant clearly knew he could not use the corporate credit card to buy groceries for his family. His claim of mistake is implausible and should be rejected for a number of reasons. Firstly, the difference is the use of his own debit card when compared to a corporate credit card makes mistaken use unlikely. Secondly, it is unlikely that the Appellant would make a like error on three separate days while making purchases with two different merchants. Thirdly, the Appellant’s failure to discern the related omission from his personal records also tells against simple mistake on his part. Finally, the check-in swipe scenario is inconsistent with the corporate credit card actually being a debit card and requiring a signature. It is submitted that both limbs of dishonesty have been proved.] 21 29.01.07 10.09.07 (prior to amendment) In relation to the Great Keppel Island excursion, students were required to make a cash contribution. The appellant removed this money from the office, without The appellant claimed that he removed the money to take on the excursion as he had been told it was necessary to have cash on hand once on the island. The need for cash Ms Maher stated: Other staff collected the money for the camp but she receipted it. 2-11. Closer to the camp the Appellant produced an envelope with names on it saying those students had given the camp money to him. -- 25 of 46 -- 26 notifying anyone or making a record of his doing so, prior to the excursion and did not return it until some four months later. was corroborated by another witness 4.29.29. The appellant accepted that he did not return the money upon return from the excursion; he did not return it until the following year 4.29.40-50. The magistrate accepted the contested evidence of Ms Maher that she had requested the appellant return the money before the excursion, which the appellant said he would do; however the money was not returned 4.30.40. The magistrate made a finding of credit adverse to the appellant, noting that had he returned the money his drawing it could have been properly documents 4.30.55. The magistrate also found that the appellant lacked credibility in his account of events; there was no accounting for the cash he took, nor what it was spent on and some of it was returned months later under protest 4.31-28.45. The magistrate therefore found it had been proved that the appellant took the money 2-11&12 and 2-37. She did not “hound” the Appellant but did ask for the money. The Appellant said he would “get the money back to me”. 2-12. Her concern was that the Appellant was borrowing the money. 2-45. She put the she had in a tin, taped it and put it in the storeroom. Some money was taken. The Appellant said he would get it back to her. 2-13. That occurred “closer” to the camp. 2-37 The Appellant stated: He retained $600 cash as he was told cash would be needed on the island. 2-109. (Ms Witterman gave evidence that she told the Appellant that he would need cash on the island. 3-10.) [However, he did not spend the money at the camp, but on groceries for himself and his family. 2.123.20] He kept a record of whose money he had. 2-110. He believed he told Ms Maher why he was keeping the money but accepted he may not have been clear enough. 2-111. He did not know about money being taken from a tin. 2-110.[He did not recall a biscuit tin, but did recall a small green box .2.123.50] The cash was not used on camp. After -- 26 of 46 -- 27 fraudulently as defined in s391(2)(f) at the time of taking the money; the charge was therefore made out even without amendment 4.30.28. returning from camp he was back at school for a week, had school holidays and took the last semester off [His wife could have taken the money back to school while he was on holidays 1.123.30]. He repaid the money on his return from school. (Her Honour wrongly stated the money was repaid “under protest”. D-31) He stated on this return from the Island the money may have been “absorbed” and that he would “organise it later” 2- 113. [While the Appellant accepted that he was in effect dealing with government money and dot the I’s and cross the T’s, he forgot he had the money and spent it 2.123.40-55]. I submit that the prosecution cannot exclude that when the appellant retained possession of the money before the camp he did so with an intent to take it on the camp. I submit that considering the context of this small school the prosecution cannot exclude claim of right in the Appellant’s personal use of the money upon his return from camp. [It is submitted that the magistrate’s finding as to credit in rejecting the Appellant’s explanation was amply open on the evidence. -- 27 of 46 -- 28 Further, since the Appellant took the money for the camp, but did not in fact use it there, could have returned it upon return from the camp but failed to do so, spent it for personal purposes and made no effort to return the actual money he took, the only rational inference is that when he took the money he had an intention to defraud. No issue of honest claim of right arises. The appellant does not contend that he thought he was entitled to use the camp money for private purposes, rather he forgot it was there and spent it. If that were in fact the case then there is no intent to defraud. If he did not forget he had the money, he does not assert any right to spend it on personal expenditure. Either way, an honest claim of right does not arise.] Discussion The amendment to charge 21 [11] As noted in the table this charge related to money given to the appellant by students in the lead up to the Great Keppel Island school excursion which commenced on 11 September 2007. It also includes monies which her Honour found the defendant fraudulently converted, which he took from a biscuit tin into which the administration officer Jeanna Maher had placed money she had received from students prior to the camp. The prosecutor made the application on the third day of trial after the appellant had given evidence. He sought leave to amend the charge by adding the words “or elsewhere” after “Kandanga”, and substituting the words “21st -- 28 of 46 -- 29 day of February 2008” for the words “the 10th day of September 2007”. Apparently the prosecutor handed up a written submission to her Honour which has not found its way to this Court. The appeal was transferred from the Gympie District Court to this Court and in reading the transcript the day before the hearing I discovered that the exhibits had not been included. Also Mr Courtney’s final written submission to her Honour was not on the file and other documents including the bench charge sheets for the charges which had resulted in acquittals. I place on record my gratitude to the Registrar of the Gympie District Court who took it upon herself on the evening of 10 April 2011 to bring down the exhibits so that I could have access to them prior to and during the hearing on 11 April 2012. [12] The application to amend was made by the prosecutor, then the defence called its remaining witnesses and both parties made oral submissions and her Honour allowed the amendment in a ruling set out in the transcript from 3-36 - 3-39. [13] It required her Honour to consider s 48 of the Justices Act 1886 which relevantly provides: “If at the hearing of a complaint, it appears to the justices that- … (c) there is a variance between such complaint … and the evidence adduced at the hearing in support thereof; then – (d) if an objection is taken for any such defect or variance - the justices shall; … make such order for the amendment of the complaint ... as appears to them to be necessary or desirable in the interests of justice.” [14] I agree with Mr Cummings that the central issue arising under an application to amend pursuant to s 48 is whether the amendment results in unfairness to the appellant: Mbuzi v Torcetti [2008] QCA 231 per Fraser JA at [26], [34], and [35]. -- 29 of 46 -- 30 This is essentially the focus of Mr Courtney’s submission before me and before her Honour. [15] Unfortunately, no particulars were ever sought or given in relation to the charge of stealing as a servant. Her Honour proceeded on the basis that the fraudulent intent alleged was that set out in s 391(2)(f) of the Criminal Code, that is: “In the case of money – an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.” Her Honour made specific reference to this matter in her judgment and Mr Courtney makes no complaint about it nor does he suggest that there was any error. [16] It was always the prosecution case, based essentially on the evidence of Jeanna Maher, that the appellant, when he converted the money that he had received from students and took the money from the biscuit tin in which Ms Maher had hidden it prior to the camp, he did so with the requisite fraudulent intent. Ms Maher’s evidence was that in relation to the camp at Great Keppel Island which commenced on 11 September 2007 it was the appellant who organised it, and each child attending was required to contribute $100. She said in evidence (and the appellant accepted this) that he showed her a list of students on an envelope from whom he had collected money prior to the camp but did not give the money to her and said he would repay it or get it back to her. She also told her Honour that she collected some money after this but still prior to the camp and “hid’ it in a biscuit tin which she taped up. The following week and prior to the camp she found that the tin had been opened and the money gone and she says (and the appellant denies) that he admitted to her that he took the money and would get it back to her. She told him that he owed between $600 and $700. It is common ground that he repaid $625 on 20 February 2008, I infer at around the time of Mr Tooth’s audit to which I will refer later. [17] The charge that the appellant was to meet was that he had formed the requisite intent prior to the camp, and his evidence was that he held onto the money in case it was necessary to use it on the camp, something he never said to Ms Maher on his own evidence as found by her Honour. -- 30 of 46 -- 31 [18] As I have noted, the prosecutor’s written outline on the point has not found its way to the file, however (at 3-32) he argues that the variance in dates sought (and presumably places) is because of evidence from the defendant about his dealings with the money during and after the camp of which the prosecution could not have had prior knowledge. Mr Cummings correctly observes that the prosecution case was always that the appellant had the fraudulent intent at the time he took the money, which fraudulent intent could also be inferred from his admission to Ms Maher in relation to the biscuit tin money. Mr Cummings observes that the amendment was sought to accommodate an alternative basis, namely that the appellant formed the requisite intention at some later time prior to repayment. [19] Mr Courtney in his submission to her Honour said that he may have cross-examined witnesses differently and this has to be accepted in relation to the critical witness, Ms Maher. He did not seek to have her or any other witness recalled. [20] In my view, it was unfair to the appellant and not in the interest of justice to permit an amendment at such a late stage of the trial and this ground of appeal succeeds. For reasons I will later expose, it will not affect the final result in relation to count 21. The Remaining Grounds [21] A number of grounds are set out in the notice of appeal as amended by Mr Courtney’s outline filed 10 August 2011. These include both alleged errors of law and errors of fact. It is convenient I think to deal with all the remaining grounds together and not separately. [22] One of the difficulties in the argument presented by Mr Courtney is that I think he has misapprehended this court’s proper role as set out in s 223(1), by referring to statements of principle from the Court of Appeal when dealing with appeals against conviction by a jury to that court. His reference in his outline to R v PAH [2008] QCA 265 at para [75] of his submission, and R v Clarke [1934] Qd. R. 23 are examples. Before dealing with the issues, I’ll make some general observations as to her Honour’s directions to herself on the law. [23] Although she did not in terms direct herself as to the proper approach to a prosecution case which was entirely based on circumstantial evidence which was -- 31 of 46 -- 32 the case here: Shepherd v R (1990) 170 CLR 573, 578; this is not necessarily fatal to the convictions, as it is for me to consider the evidence by way of hearing and to apply the correct legal test i.e. that guilt should not only be a rational inference but the only rational inference that can be drawn from the circumstances and facts proved to the satisfaction of the court. It is clear from the submissions made to her Honour that she was quite conscious of the fact that she was dealing with a prosecution case based entirely on circumstantial evidence, and the fact that she doesn’t mention it in her reasons does not constitute an error. She clearly understood that she had to be satisfied beyond a reasonable doubt that the use of the debit card in each case was dishonest by the standards of ordinary honest people and that the appellant realised at the time that what he did was dishonest by those standards: R v Maher [1987] 1 Qd R 171 applying the test promulgated by the English Court of Appeal in R v Ghosh [1982] QB 1053. Charge 4 [24] As with all the charges, this charge emanates from an audit conducted by Mr Richard Tooth in early 2008 which, as he said, concentrated on the use of the corporate debit card at the school. It is common ground that on 10 December 2006 the appellant used the card to purchase $100.73 of meat and soft drinks from Woolworths at Noosa. Evidence was led from Ms Maher, which was not disputed, that she would go through the debit card statements with the appellant (or his wife in the last term of 2007) and he or she would produce relevant receipts and Ms Maher would then assign those amounts to a particular budget item using a code depending on what she was told. In dealing with this charge at 4-7 – 4-9, her Honour mistakenly referred to the purchase being in 2007. In relation to these findings, Mr Courtney submits that her Honour in effect reversed the onus of proof when she observed (at 4-8): “Prima facie it appears clearly the purchases of food was not official business and the explanation given by the defendant that it was lunch for the parents cannot be sustained and is not plausible.” [25] I have independently assessed the evidence directly relevant to this charge. When her Honour’s reasons are read as a whole there is no substance in the criticism that she misunderstood the evidence or misapplied the onus of proof on any occasion. -- 32 of 46 -- 33 As well as the matters referred to by her Honour, there is also evidence from the invoice itself that supports her Honour’s unfavourable assessment of the appellant’s evidence in relation to this transaction. He said it was a barbecue on a trip to the Noosa River and sausages were purchased for the kids from Kandanga Bakery. This overlooks the fact that included in the $100.73 was $12.04 worth of sausages. The submission made by Mr Courtney also overlooks the findings of her Honour in relation to Counts 2 and 20, which involved substantial purchases made the day before by the appellant using the debit card for a luncheon for staff at his home at Sunrise Beach. It shows that (a) her Honour was careful to apply the test in relation to each charge and (b) unlike the alleged barbecue the subject of Count 4, there was evidence from a number of persons relevant to Counts 2 and 20 (for example, Maria Green, the teacher aide) that in fact a Christmas function was held at the appellant’s house that year. Her Honour quite correctly observed that there was no other evidence of a break up function of the type mentioned by the appellant although there was evidence that break up functions did occur towards the end of the school year usually on a Wednesday or a Thursday. As Mr Cummings notes in his table above, this purchase was made on a Sunday. Her Honour made reference to Ms Maher’s evidence that the purchase was allocated to the children’s healthy eating diet. Ms Maher’s evidence was that the words “healthy food” which led to the allocation and which is written on the invoice is not in her handwriting. Ultimately, her Honour concluded that she did not accept the appellant’s evidence as to the reason for the purchase and concluded that it was for personal use. As Mr Cummings notes, the appellant’s evidence as to the nature of the function and the number of attendees varied quite significantly in the course of his own evidence. Although I have reached the conclusion factually from a slightly different route to her Honour, there is no reason to doubt the correctness of her finding in this regard. Even on the appellant’s own account he knew the card could not be used for personal use. In this regard he gave evidence that on other occasions he would in fact use the card for private purchases and then reimburse the school later. This evidence alone is enough to support her Honour’s findings that his attitude to the use of the card was cavalier. [26] Incidentally, in relation to the table incorporated above originally prepared by Mr Cummings, Mr Courtney’s observation at the very top that the card is a debit card and not a credit card is correct. Having said that, he referred to it constantly during -- 33 of 46 -- 34 the trial in both cross-examination and in examination-in-chief as a credit card so the error is understandable and of course irrelevant to any issue raised on the appeal. Charge 5 [27] The prosecution case ultimately proceeded on the basis of the appellant’s admitted use of the card to purchase a “Friendship Bouquet” for $35 (along with other items) from Coles at Noosa on 14 February 2007, Valentine’s Day. The appellant denied that the flowers were purchased for his wife, the other teacher at the school, as they did not celebrate St Valentine’s Day and Ms Domine gave evidence supporting her husband in this regard. Ms Green gave evidence, not challenged, that flowers were sometimes purchased when a family was leaving at the end of the year, and Ms Maher in cross-examination gave evidence that flowers would sometimes be purchased on Anzac Day, and she recalled an occasion when flowers were purchased when a teacher aide had died. Her Honour generally did not regard either the appellant or his wife as convincing or reliable witnesses. The appellant could not recall why he purchased flowers on Valentine’s Day but was certain it was not for his wife. Mr Courtney makes a general submission that her Honour in her critical assessment of Ms Domine’s evidence and that of the appellant, did not fairly take into account that they were attempting to recall events some years hence. The difficultly with that submission is that it cuts both ways. On occasions both were quite definite that certain things did not happen e.g. he did not purchase flowers for his wife on Valentine’s Day: he was “quite sure” the break up the subject of the allegation in Count 4 was a trip to the Noosa River; she was positive (even giving reasons why) she never saw any of the groceries purchased at the IGA at Rainbow Beach by her husband on 1 September 2007 (Count 14), despite the family being together in a unit at Rainbow Shores. In relation to their evidence concerning Count 4, her Honour’s unfavourable view is reflective of her generally bad impression of both of them as witnesses (4-10-4-11): “The purchase was evidenced in the exhibits there was no dispute by Mr Dillewaard of the actual purchase. Mr Dillewaard gave evidence that he did not believe in Valentine’s Day and although he could not recall who the flowers were for, he could say with definite conviction they were not for his partner. -- 34 of 46 -- 35 His partner supported this by saying that they did not celebrate Valentine’s Day and that she did not recall getting flowers. She conceded she does get flowers on some days, such as birthdays, but not on St Valentine’s Day. Of course, overall, the weight of Ms Domine’s evidence had to be questioned. She was supporting her partner with whom she is still in a relationship and who was the father of her three children. However, I could not find her evidence credible on many counts, as her evidence was presented in a contrived and very controlled manner. Mr Domine’s evidence overall was not reflective of a person who was straightforward and simple in her answers and was not suggestive of a person intent on telling the truth, no matter how hard it may have been. She was careful in her answers and gave the impression her primary motivation was to protect and cover for her husband, and in doing so was often dismissive in her answers to suggests of wrong doing. Her answers in relation to Valentine’s Day were so contrived in her manner that they lacked any credibility and it failed to attract any weight or benefit of persuasion. Mr Dillewaard as well did not present as particularly honest and straight forward in relation to this as well. Simply dismissing it as it not being Valentine’s Day but unable to substantiate anything further. On all accounts of an objective standard, a reasonable person would find buying flowers for a person on Valentine’s Day utilising the corporate card would not be honest. And, I can draw a strong inference that Mr Dillewaard knew that his purchasing the flowers and that it was not an appropriate use of school funds and indeed was dishonest.” -- 35 of 46 -- 36 [28] Having read the transcript and analysed the exhibits, there is absolutely no substance in the submission that her Honour’s assessment of the appellant and Ms Domine’s evidence was against the weight of the evidence or unfair. There is nothing in the evidence to show that her Honour “failed to use or has palpably misused (her) advantage (of having observed and heard the witnesses), or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472. Charge 6 [29] On 23 March 2007 the appellant used the corporate card to purchase some cot sheets for $59.90 from Noosa Bubs. His son Xavier was born on 11 March 2007. The appellant said that he knew that the card could not be used for such a personal purpose. His evidence was that someone on the P & C or a staff member suggested he get a present for he and his wife to celebrate the birth of their son, and that the P & C would reimburse him. Nicola Watson was President of the P & C for four years until the end of 2006 when she resigned from the committee but remained a member of the P & C. She gave evidence. She said the P & C did purchase gifts at times out of their funds and said that if a gift was to be purchased for the appellant, he would not be asked to use the corporate card. Mr Witterman gave character evidence for the appellant. He was President of the P & C from 2008-2009. He said gifts were sometimes given by the P & C to teachers who were leaving, inferentially paid for out of P & C funds. Mr Courtney asked him about this purchase, and he said that he did not remember the gift “but I can quite imagine that would have happened. The P & C would have done something like that for Samantha when she had her baby, yes.” He was not asked if the P & C would have been happy with the appellant using the government card marked “Official Use Only” subject to reimbursement. Ms Domine went much further than her husband, and despite the passage of time about which Mr Courtney speaks, could recall actually being present at the school and being presented with the sheets wrapped as a present with a card from the P & C and staff signed by all staff, and that she took Xavier along for the presentation. This was at a time when she was on maternity leave. No other witnesses support this detailed account including the appellant himself. Her Honour, rather generously I think, was prepared to accept that the -- 36 of 46 -- 37 sheets were presented to Ms Domine, but accepting Ms Watson as a “clear precise and thoughtful” witness and preferring her evidence to that of the appellant and Ms Domine was clearly a finding open on the evidence. As her Honour correctly observed, it was the use of the card for an obvious personal purchase that was the gravamen of the offence. [30] Charges 7 and 8 resulted in acquittals but again her Honour, made unfavourable findings about the evidence of Ms Domine who, contrary to the evidence of her husband, said because Xavier was still very young (26-27.4.07) she “suspected” she did not attend the Leaders Workshop with her husband the subject of these charges. The substance of the allegations was to the effect that he had used the card to purchase a meal for himself and his wife during the conference. Her Honour found that Ms Domine’s evidence about this occasion was “contrived”. In my opinion, that assessment is justified. Charge 9 [31] Again there is no dispute that on 9 June 2007 the appellant used the card to purchase two items from Harvey Norman Electrical; a Dimplex oil heater for $119 and a computer game described as Tiger Woods PGA which was later seen around the school, for $79.99. The allegation of fraud related to the heater. The appellant said that the heater was purchased to supplement the existing bar heaters in the demountable classrooms which were ineffective, but that he did take it home in the June holidays and returned it at some later time. Ms Whitley, a teacher’s aide at the time, gave unchallenged evidence that in 2007 the appellant told her that his children were complaining of the cold at home. In his evidence he said that the heater went back to the school but he could not recall when. Ms Domine recalls the heater coming home but only for the two weeks of the June holidays in 2007. The appellant said that he recorded the heater on the “Loans Register” which Ms Maher said was for recording instances when staff or students borrowed school property such as computers to take home for school purposes. The Loans Register is not part of the evidence. Ms Maher gave evidence that she was unable to locate a heater (although she did not know which one) during a stock take, and recalled a heater being returned to the school later in the year. The appellant and Ms Maher signed off on this expenditure in August 2007 (see Exhibit 12). As her Honour noted, given the size of the school, a stock take would have been straight forward. Ms -- 37 of 46 -- 38 Green also gave evidence relevant to this count which her Honour accepted. She was adamant that she had never seen an oil heater at the school. Mr Courtney in his submission recorded above in the table makes a spirited attack on the reliability of Ms Green’s evidence, and criticises her Honour for what he submits is a misunderstanding of some evidence from the witness elicited in cross-examination about looking in the storeroom for the heater. Certainly Ms Green was not as adamant as her Honour may have suggested, but she did say that one oil heater was returned when the auditors were coming. Again, her Honour’s conclusions as to guilt also depend on her rejection of the appellant’s evidence which again is justified on all the evidence. Mr Courtney refers to the evidence about the installation of reverse cycle air-conditioning in the demountables by the P & C which he submits occurred sometime late in 2007. A complete reading of the evidence of Ms Watson does not support such an unequivocal conclusion. Given her Honour’s primary findings as to credit, it is in any event a peripheral issue. Charges 13, 14 and 15 [32] There is no issue that the appellant used the corporate card to pay for three nights accommodation at Rainbow Shores at Rainbow Beach in connection with an Area Principals Conference held there commencing on Thursday 30 August 2007 and concluding Friday 31 August 2007. Charge 12 related to accommodation on the night before the conference. It is common ground that the appellant’s wife and his children also attended with him and were housed in the unit. The prosecution in relation to Charge 12 alleged that as his home was only 150 kilometres from the venue, it was unnecessary to travel to it the night before, and his use of the corporate card for the accommodation cost was therefore dishonest. Her Honour acquitted on that count on the basis that she was not satisfied beyond reasonable doubt that his action was objectively dishonest. The appellant conceded that the family had decided in advance to stay for the weekend after the conference, but he could not explain why he had used the corporate card on these occasions. He was sure he had asked the venue to split the bill. He said he may have mistakenly used the card instead of using his own card. Mr Cummings makes the telling point that on the evidence the corporate card operated on the basis of a signature whereas his own Virgin credit card operated by PIN. Despite his sworn evidence that he could not recall why he used the corporate card for an admitted personal expense, the -- 38 of 46 -- 39 appellant nevertheless had good recall of the venue misplacing his driver’s license which had to be handed over as security when he took clubs to play golf at the venue golf course. Charge 14 relates to a purchase of groceries at the Rainbow Beach IGA for $108.40 using the corporate card which again the appellant acknowledged was a personal expense. Again, he raised the prospect of mistake. Of all the charges, the evidence in relation to this Count points to an overwhelming inference of dishonest conduct. The documentation in relation to this purchase is contained in Exhibit 16, and it is accepted that when the appellant (or more correctly his wife as acting Principal) on his behalf, handed the invoice to Ms Maher for reconciliation purposes probably at the end of September, the top portion of the invoice showing purchase of cigarettes had been torn off. It was necessary for the prosecution to call the owner of the IGA at Rainbow Beach, Mr O’Connell, to prove that the purchase made by the appellant using the government card included four packets of Benson and Hedges cigarettes. As her Honour noted it was also necessary for the prosecution to call forensic evidence to reconstruct the invoice. Mr Courtney submits that in considering the appellant’s evidence about mistake, regard should be had to what he did in relation to Count 19. This submission is made in the context of one of the grounds of appeal, namely that her Honour erred in considering the application of s 24 of the Criminal Code. This was because Mr Courtney relied in his submissions upon claim of right s 22 of the Criminal Code in relation to some of the counts and not mistake. As Mr Cummings correctly notes, her Honour was obliged to consider any exculpatory provision if it arose on the evidence in relation to any of the counts and to exclude its application beyond a reasonable doubt. She was right therefore to consider s 24 in relation to this Count although clearly her strong findings as to subjective dishonesty were probably enough to exclude the application of s 24. The consideration of this issue at 4-19 – 4-21 of her decision was appropriate although unnecessary in my opinion. Her approach was unduly fair to the appellant. In this context, she noted the evidence of Ms Domine who swore that, despite them all sharing the unit and travelling home on that day, she did not see any groceries that day, and she did not see anything amiss when she signed off on the reconciliation of these expenses shortly afterwards with Ms Maher preferring to place all responsibility on Ms Maher. Her Honour correctly observes that on the appellant’s evidence he made a mistake on three separate occasions over two days and that explanation is simply implausible. When -- 39 of 46 -- 40 confronted with an application for a Virgin credit card (Exhibit 39, which was the card the appellant was using personally at the time), his reaction was unimpressive and disingenuous. On any proper analysis, there are clear physical differences between the corporate card and the Virgin card apart from the operational differences noted by Mr Cummings. [33] In relation to Count 19, Mr Courtney says the evidence shows that upon his client becoming aware of using the card in that case he quickly repaid it, which presumably has some bearing on his actions in relation to the Rainbow Beach offences. For the reasons set out above, I reject that argument. Her Honour was undoubtedly correct in convicting the appellant of all three of these counts. [34] Mr Courtney also raises in this context the evidence of good character. Her Honour did not specifically deal with this evidence which was called by the defence. The limited use of this evidence to a decision maker is well known: Melbourne v R (1999) 198 CLR 1. Given her Honour’s specific findings as to the credibility of the appellant, on a re-hearing I would regard the good character evidence as having very marginal relevance. The conduct of the appellant in relation to the Rainbow Beach offences is a clear example supporting this conclusion. Her Honour would have been quite entitled to draw the inference that either the appellant or his wife at his direction interfered with the IGA invoice with the clear dishonest purpose of concealing the purchase of cigarettes from Ms Maher. Charges 18 and 19 [35] On 28 October 2007 the appellant used the card to purchase $180 worth of groceries from Big W at Noosa which included an $11.96 bottle of shampoo which the appellant acknowledged to Ms Maher was a personal expense. His evidence was that at the time he used the card he believed that he would fix it up when he returned. He was then on leave and did not return to the school until the start of the 2008 school year. It follows that contrary to her Honour’s approach, s 24 did not arise in this case. One of the factors that influenced her Honour was that the $11.96 was never in fact repaid. The evidence on this point is confusing. The relevant documentation is contained in Exhibit 20. It was most probably reconciled at the beginning of November 2007 between Ms Maher and Ms Domine. Ms Maher has written on the card statement a reference to the card statement in November which -- 40 of 46 -- 41 is contained in Exhibit 21 and tendered as being relevant to Count 19. She has written “reimbursement of $11.96 (included in cheque for $315.95) was made by Robert Dillewaard on the 11th of December 2007 for private purchase of shampoo incorrectly included on docket” on Exhibit 20. Then on Exhibit 21 (also signed off on reconciliation by Ms Domine), Ms Maher has written “the amount of $303.99 was reimbursed to school on 11 December 07 as the incorrect credit card was used for this purchase”. This relates to $303.99 purchased from Coles Noosa on 13 November 2007, the subject of Count 19. Clearly these entries were written in by Ms Maher probably at the time of the reconciliation of the November statement in December 2007 i.e. after reimbursement. Exhibit 33 which is a reconciliation undertaken by a senior finance officer of the department of the computer used to store financial information from the school confirms that $303.99 was reimbursed on 11 December 2007. The difference between $315.95 and $303.99 is $11.96. [36] The appellant said in evidence that Ms Maher raised the $11.96 with him and that he had forgotten about it. In relation to Count 19 he said he was on holidays shopping with his boys and he went into great detail as to how he recalls being assisted by another shopper and he was in a rush and used the wrong card by mistake. Ms Maher called him about it, however Ms Maher said he raised it with her. Again, her Honour’s conclusions in relation to these counts depends significantly on her findings as to credibility. In relation to both counts it can be inferred that when he used the card he knew it could not be used for personal purposes. The fact that the money was reimbursed, or not reimbursed later, may be relevant to his subjective state of mind at the time he used the card but the appellant was clearly an intelligent man who must have known at that time in relation to both occasions that what he was doing was dishonest by community standards. In relation to Count 18, I infer that he deliberately used the card on that occasion knowing it included a purchase of a personal nature. Her Honour was correct in finding him guilty. In relation to Count 19, he again raised s 24. Again, her Honour was correct in excluding s 24 beyond a reasonable doubt on the basis that he must have known that to purchase groceries for his family while he was on leave using the official card was dishonest. She could have also referred to the differences in the cards both physically and operationally in holding that his alleged mistake was not reasonable and excluded on all the evidence beyond a reasonable doubt. -- 41 of 46 -- 42 Charge 21 [37] As a result of my earlier ruling that her Honour erred in allowing the amendment, the conviction must be set aside and I will re-hear this charge on the evidence before her Honour. It is clear from her Honour’s decision in relation to this Count that she was proceeding on the basis that the relevant intent was that contained in s 391(2)(f) of the Criminal Code. [38] On a re-hearing of the matter and giving proper weight to her Honour’s conclusions on credibility, in my opinion, the evidence is overwhelmingly one way, and that is that when the appellant took the money he intended to use it at his will. It is clear from her Honour’s findings at 4-30 that, despite the amendment she was satisfied that the offence had indeed been completed by the time the camp started on 11 September 2007. [39] Her preference for the evidence of Ms Maher in relation to this Count to that of the appellant is telling. I can find no flaw in her reasoning in that regard. It would follow therefore that the appellant converted both the cash he received directly from the students and the money he took from the biscuit tin which had been sealed up by Ms Maher to prevent access to it. The appellant’s evidence on this issue was simply implausible and her Honour was right to reject it. The evidence of Ms Maher to the effect that he admitted taking both lots of cash and that he said “I’ll get it back to you” not “I am going to use it on camp as a float” is telling indeed. [40] The money was not repaid until February 2008. In cross-examination he said he had spent it and forgotten he had had it. This is simply implausible. That he was so open about his actions is explained by what her Honour noted, and that is he had a cavalier attitude to the use of the government card, and it can be inferred that he had a cavalier attitude to school monies which he must have known he had no entitlement to deal with as his own as he did. I find him guilty of one charge between 30 January 2007 and 10 September 2007 at Kandanga in the state of Queensland, he being the servant of the Minister for Education stole a sum of money which had come into possession on account of the Minister for Education. [41] I agree with Mr Cummings that it is unnecessary to consider s 22 given my findings that the defendant had the relevant fraudulent intent at the time he converted each -- 42 of 46 -- 43 lot of money. In my view it is not raised on the evidence but if I am wrong in that conclusion, I find beyond a reasonable doubt that at the time he took the money the defendant did not do so in the exercise of an honest claim of right and without an intention to defraud. I am satisfied beyond a reasonable doubt that when he took the money he had the relevant intention to defraud. [42] Mr Courtney made a submission in his original outline criticising her Honour for not revealing how her findings on one count affected her findings on the others. There is no substance in that submission which he did not pursue in oral argument, nor was the prosecution in any way based on similar fact evidence. [43] It follows that the appeals against conviction are dismissed with the exception of Count 21 which I have re-heard and convicted the appellant. Appeal against Sentence [44] In light of my decision in relation to Count 21 it is necessary to re-sentence the appellant afresh in relation to that Count. [45] As I have noted, her Honour heard submissions and gave a reserved decision on sentence on 24 May 2011. [46] At the time of sentence the appellant was 45 and had no previous convictions. His employment had been terminated and he had lost a considerable amount of money in relation to his superannuation. [47] He is convicted of nine counts of fraud and one count of stealing as a servant. The total amount derived from his offending was $1,940.55 and he had paid back all but $755.04. [48] Her Honour imposed six months on each count and set a parole release date on 27 June 2011 that is after serving five weeks in actual custody. [49] Her Honour was correct to emphasise the appellant’s lack of remorse and his significant breach of trust. It is also relevant that he was cavalier about the use of the card, and open about his actions in what is subjectively the most serious of the offences, the charge stealing as a servant. Her Honour was referred to a number of -- 43 of 46 -- 44 authorities, none of which are really comparable but establish well known principles in relation to offences of this nature. [50] She correctly observed that stealing as a servant is a more serious form of stealing because it involves a breach of trust, especially here where the appellant was a Principal of the school. [51] The only case referred to her Honour which involved fraud by a teacher was R v Bailey [2003] QCA 506. The appellant in that case was the acting Principal of a small state school. She obtained a requisition for official purchase of goods on behalf of the school from the relevant school employee for $75 which she altered to $627.91 when presented to the supplier and converted goods to her own use. The appellant there was convicted after a trial and the issue ventilated in the judgment concerned the form of the charge and in this regard the appellant was successful so that technically she fell to be sentenced for fraud without the circumstance of aggravation that she was a servant. She was re-sentenced but only to the extent of a conviction not being recorded. Mackenzie J dissented. The fine of $1,500 stood and it was noted that she would “probably” lose her employment. She was 47 and had no previous convictions. [52] Clearly this case is much more serious and Mr Courtney correctly concedes that a term of imprisonment was within range. He submits however that in the proper exercise of the sentencing discretion a sentence not involving actual custody is within range. [53] Her Honour also noted that imprisonment was a sentence of last resort and that the appellant was not entitled to any discount associated with a plea particularly where the prosecution was detailed and undoubtedly involved expensive investigation and where he had not cooperated. [54] She noted that he had not re-offended in the years since the offences were committed. It is not clear but I think it can be inferred that he remained in possession of the credit card through the remainder of 2007 and 2008 without any suggestion of misuse. In any event, it is not alleged that he has committed any further offences. The lengthy period over which the offending occurred is also relevant. -- 44 of 46 -- 45 [55] The sentence imposed by her Honour was unusual in a number of respects. Firstly, she did not suggest that in imposing a sentence of six months on each count she was doing so to reflect a global sentence and the overall criminality of the conduct. It follows that the same sentence was imposed for Count 18 involving $11.96 for example, as was imposed for Count 21, objectively the most serious. [56] Secondly, despite referring to his lack of cooperation, nevertheless she ordered that he serve a very short period in actual custody amounting to about 20% of the head sentence. She did not explain why she reached this conclusion and generally short sentences of imprisonment are to be discouraged. This is particularly so in relation to offences that do not involve sexual misconduct or violence. [57] Thirdly, she set a parole release date in circumstances in which there was clearly no need for that sort of supervision for this appellant. [58] She was correct in emphasising the applicability of the principle of general deterrence. It always comes into play in cases involving a breach of trust. However, the principle is to be applied by a sentencer in the context of a particular case. Clearly on the basis of the research done by the two very experienced counsel involved in this case, dishonesty in financial dealings by teachers is not common. Clearly, the principle extends as well to all employees in a position of trust but in my opinion it does not have the overwhelming force in this case that her Honour seemed to ascribe to it. [59] She correctly recognised that a sentence of imprisonment not involving actual imprisonment was within range however, for the reasons set out above I am satisfied that in formulating the overall sentence her Honour erred in the House v The King (1936) 55 CLR 499 at 505 sense, and that the sentencing discretion should be exercised afresh in relation to all counts. In those circumstances I will allow the appeal against sentence. I set aside the orders made below and in lieu impose the following sentences: Charges 4, 9. Two months on each Charges 5, 6, 18. One month on each Charges 13, 14, 15, 19. Four months on each Charge 21 Six months -- 45 of 46 -- 46 [60] All sentences are to be served concurrently. I suspend the sentences from today’s date for an operational period of 12 months. Convictions are recorded as a matter of law. The appellant will pay to the Minister of Education by way of restitution the sum of $755.04 within three months of today’s date in default one month imprisonment. I understand that he has served three days in custody and I will make the declaration at the time I deliver these reasons. -- 46 of 46 --