Heather Sherrin v Kenneth Edward Charles Sagacio Sca [1990] ACTSC 35; (1990) 101 FLR 255 (16 October 1990)

SUPREME COURT OF THE ACT

HEATHER SHERRIN v. KENNETH EDWARD CHARLES SAGACIO
S.C.A. No. 24 of 1989
Magistrate - Criminal Law
[1990] ACTSC 35; (1990) 101 FLR 255

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Magistrate - appeal to Supreme Court against conviction - consideration of Magistrate's findings of fact - no new statement of principle.

Criminal Law - defrauding the Commonwealth - aiding and abetting - sufficiency of evidence.

HEARING

CANBERRA
16:10:1990

Counsel for the appellant: Mr R. Mildren

Solicitors for the appellant: Gary Robb and Associates

Counsel for the respondent: Ms. L. McCallum

Solicitors for the respondent: Director of Public Prosecutions

ORDER

The appeal be upheld.

The conviction and penalty be set aside.

The information be dismissed.

There be no order as to costs.

DECISION

This is an appeal against conviction by a Magistrate in the Canberra Magistrates Court on 30 March 1989. The appellant was convicted on a charge under s.5 of the Crimes Act 1914 (Clth) alleging that she aided, abetted, counselled or procured Sydney James Davis in the commission of an offence by that person in that the said Sydney James Davis had, between 1 October 1984 and 19 January 1985, defrauded the Commonwealth. Davis, who had pleaded guilty to a charge of defrauding the Commonwealth between those dates, gave evidence in the proceedings against the appellant and it was not disputed that Davis had, in fact, defrauded the Commonwealth, in that he, according to the words of the Magistrate, "had submitted false documentation regarding concrete work carried out by a contractor on the defendant's residential driveway in Wanniassa and that the contractor had thereby been paid for work which was not properly payable by the Commonwealth through the Department of Housing and Construction.

2. The facts, insofar as they were not disputed, were that Davis was, at the time, a works supervisor with the then Department of Housing and Construction, responsible for supervising day labour work in the Canberra area in relation to the repair and construction of concrete driveways and footpaths. The appellant was a depot clerk in the office in which Davis carried out the administrative part of his duties. The appellant was the lessee of land and premises at 76 Lansell Circuit, Wanniassa where she lived. In September-October 1984 the concrete driveway leading from the kerb to the appellant's land was damaged and in need of repair. The adjacent driveway strips on the appellant's land were in a similar state. The appellant drew the attention of Mr Davis to the need for repair of her driveway. Mr Davis arranged for a contractor to repair the damage on both the Commonwealth land and on the appellant's land. When that was done, he checked the measurements of the work and made out a form known as an ITC (instruction to contractor) number N24202 dated 2 January 1985, which authorised payment by the Commonwealth of $901.97 for 55.48 sq m of concrete. This included the work done on the appellant's property. The ITC was then processed through the depot at which the appellant worked and the claim was subsequently included in a progress certificate dated 15 January 1985 prepared in the depot for the purpose of paying the contractor. The contractor was eventually paid by the Commonwealth.

3. The Magistrate, in his reasons, summarised the relevant part of the prosecution evidence as follows:-
"Mr Davis' evidence was that the 55.48 sq. metres

included the work done on the defendant's property.
He was aware that the work should not have been paid
for by the Commonwealth and should have been charged
to and paid for by the defendant. He said he later
saw the defendant and showed her the ITC form No.
N24202 telling her that the work, which was worth
approximately $300.00, was covered by the form."

4. The Magistrate summed up the appellant's case and the relevant defence evidence as follows:-

"The defence case was put principally through the
evidence of the defendant, who denied that she had
come to any arrangement with Mr Davis to have work
done on her property which would then be paid for by
the Department. She said that she believed after
the work was done she would receive a request for
payment, and in fact had raised the matter with
Mr Davis at the staff Christmas party. She said
that she had waited for a request for payment but
none had been forthcoming. She said that when she
gave the relevant answers to the police regarding
payment, she was confused because of the attitude of
the two police officers during the interview, and
because of the lapse of time since the incident had
occurred. She conceded that, after the matter had
come to light, she had made payment for the work to
the Department."

5. There was other evidence in the case from the contractors, from a departmental officer, Mr Roach, and from police officers who interviewed the appellant. For the purpose of the appeal nothing turns on that evidence.

6. In his reasons, the Magistrate said as to the critical issues,

"...I must be satisfied beyond reasonable doubt that
the defendant knew that Mr Davis was going to have
the work on her property carried out at no cost to
her, and would include it on an ITC so that the
Commonwealth paid for it. I also have to be
satisfied beyond reasonable doubt that she
subsequently became aware that this had occurred,
and that ITC N24202 had been raised to enable
payment to be made by the Commonwealth, and
acquiesced in this deception."

7. Neither counsel for the appellant nor for the respondent disputed that such an analysis of the issues to be determined was correct. In the circumstances of the case, I think that the Magistrate was correct in formulating the issues in that way.

8. In dealing with the conflict between the evidence of Davis and that of the appellant, the Magistrate said as follows:-

"Firstly, Mr Davis said that the defendant had
initiated the matter of repairing her driveway, and
had accepted his suggestion that he include it in
the ITC to be later raised; the defendant on the
other hand, said she had merely inquired whether her
driveway could be reconstructed at the same time as
that on Commonwealth land, that she fully expected
to pay for such work, and had indeed raised the
matter with Mr Davis at the Christmas party.
Secondly, Mr Davis said that when he had prepared
the ITC, he discussed its processing with the
defendant, who was the depot clerk; the defendant
denied that this occurred, saying that she had been
absent from duty for several months about that time,
not returning to work until April."

9. The Magistrate went on to give his reasons why he preferred the evidence of Mr Davis to that of the appellant. In this respect, it is very clear that amongst the other reasons given, the Magistrate found the demeanour of Mr Davis more impressive than that of the appellant.

10. In an appeal such as this, the appellate court will defer to the findings of the tribunal appealed against where those findings depend in part at least upon the credit of witnesses, except to the extent that the findings are demonstrably wrong or contrary to facts otherwise established.

11. Mr Mildren, who appeared for the appellant, submitted that on this basis the Magistrate's findings of fact should be set aside by this Court notwithstanding his views about the credit of Davis and of the appellant, both of whom he had the opportunity to see and hear in the witness box.

12. It was submitted that the Magistrate was incorrect in summarising the evidence of Mr Davis in the passage quoted above.

13. The evidence given by Davis relating to what the appellant said about the proposal to repair the concrete was very limited. On page 7 of the transcript of 23 February 1989, he said that "She asked me to have a look at her concrete work", which included the driveway strips on the appellant's land as well as the driveway on the Commonwealth land. He stated that he told the appellant that "it wants repairing" and the appellant asked "was it possible to have it done while I was in the area".

14. Later, the following exchange took place between the Magistrate and the witness,

"What was actually said by her to you?---Well, to
the best of my knowledge, your Honour, say the woman
sits in another room from me, and she just said,
"Syd, when you are in the area could you check my
driveway out, because it was damaged?" And I said I
would, and she said, "To have a look at my inturn
(sic) because they are just drive strips and they
are all broken." And that is - - -
Right. And you did that?---I beg yours?
You did that. You had a look at it?---Yes. And I
said, "Yes, it could be done."
Well, what was said, if anything about the
Commonwealth paying for the entire job?---Well, to
the best of my knowledge, that she said she would
fix payments up, and I do the government part. But
I say, your Honour, I do not know why I never made
out a full ITC, and that is what I said to
Judge Ward; I said, I cannot - to the best of my
knowledge why I never made out an ITC exactly for
that location. But, and I say, that is why he said
to me, he says, well I false - I defrauded the
Commonwealth of $300."

15. In my view, this evidence is not capable of an interpretation that the appellant had initiated with Davis the possibility of the driveway on her land being repaired at Commonwealth expense, nor that there was a suggestion by Davis that the cost of repair to the appellant's driveway be included in the ITC to be later raised, nor that the appellant accepted or acquiesced in any such suggestion. Indeed, the evidence is consistent with the contention of the appellant that she had enquired whether her driveway could be reconstructed at the same time as that on the Commonwealth land, in the expectation that the contractor would be reimbursed directly by the appellant for the work done on her driveway.

16. The other matter relates to the evidence of Davis passing the ITC to the appellant, who was the depot clerk, and discussing it with her. Davis gave evidence that he prepared the ITC on 2 January 1985, which included the work done on the appellant's land. The rest of the evidence is as follows:-

"And sometime later did you approach Mrs Sherrin
again at the Fyshwick depot?---To the best of my
knowledge, I did, yes.
And did you give her that ITC?---I said I did, yes.
And did you say anything to her at the time?---I
said, "All the work is finished."
Did she say anything to you?---To the best of my
knowledge she said, "Thanks."

17. The appellant gave evidence that she had never received the ITC of 2 January 1985 at any time, and that she had been absent from her work on compensation from 18 December 1984 to 1 April 1985. If that was the only evidence on the question of the appellant's absence from work, the Magistrate would have been entitled to reject it. As it was, the Magistrate dealt with that aspect by saying simply that,

"...the defendant denied that this occurred, saying
that she had been absent from duty for several
months about that time, not returning to work until
April",

but concluding that he did not accept her evidence of having no knowledge of ITC N24202 "even though she was said to be absent for some time from work". However, there was other evidence on this aspect which the Magistrate did not mention in his reasons. In particular, Mr Norman Bateson, Director of Personnel Management, produced certain records from the Personnel file relating to the appellant, and in particular, a leave card. The leave card itself was not in evidence but Mr Bateson was permitted to refer to it and he gave evidence that the card indicated that the appellant was on leave from 17 December 1984 to 9 January 1985 on compensation and from 21 January to 25 January 1985 originally on recreational leave but subsequently adjusted to leave on compensation.

18. Mr Clive Roach, an Engineer with the ACT Administration Office, said that the appellant was on leave from early to mid December with repetitive strain injury, returning to duty on 1 April 1985. He did not state the source of his knowledge in this respect.

19. Although the Magistrate did not refer to the evidence of Mr Bateson, there appears, in my view, to be no reason why it should be rejected. In other words, it would have to be accepted that if Mr Davis did hand the ITC to the plaintiff as he alleged, then that necessarily would have occurred on or after 10 January 1985. The progress certificate that was prepared by Mr Davis, according to his own evidence is dated 15 January 1985. There would necessarily have to be some lapse of time between submission of the ITC dated 2 January 1985 and completion of the progress certificate, but how long that lapse was is impossible to say. The authorised officer who signed the certificate was a person called Rummakainen, and not the appellant, although the appellant would have had authority to sign. All this, in my view, raises a reasonable doubt whether the appellant was back at work when the ITC was submitted and hence whether it was she who received the ITC from Davis.

20. The Magistrate rejected the appellant's evidence on another aspect of the case, in which she alleged that she raised the matter of payment with Davis at the departmental Christmas party which must have been somewhere towards 25 December 1984. However that is, in my view, a peripheral issue and not a critical one. The two critical issues are first, whether there was evidence that the appellant agreed or acquiesced in an arrangement whereby her driveway would be repaired at no cost to her and second, whether Davis handed the ITC to her and discussed it with her. In my view, there is no evidence to support the prosecution on the first of these two critical issues and there is some doubt in relation to the second. Hence, despite the Magistrate's findings on credit to which I give due weight, and despite the suspicious circumstances relating to the appellant's role in the events, I think that there has to be some doubt about whether she was a knowing party to the fraud on the Commonwealth perpetrated by Davis.

21. The appeal will be upheld, the conviction and penalty set aside and the information dismissed. I make no order as to the costs of the appeal or of the proceedings in the Magistrates court.