Gault v Lawson [2002] ACTSC 94 (19 September 2002)

Last Updated: 25 September 2002

KATHRYN ANN GAULT v JOHN GERARD LAWSON [2002] ACTSC 94 (19 September 2002)

CATCHWORDS

COURTS AND TRIBUNALS - appeal from Magistrate on ground that conviction unsafe and unsatisfactory - principles to be applied on appeal.

CRIMINAL LAW - circumstantial evidence - cash obtained by cheques drawn by bookkeeper - whether evidence sufficient to prove that the appellant obtained the cash and that she did so dishonestly - whether such actions could constitute theft of money belonging to the Bank.

Crimes Act 1900, ss 84, 85, 86, 87, 99A

Shepherd v R [1990] HCA 56; (1990) 170 CLR 573

Patrick John Sikorski v Peter Gritsch (unreported, [2002] ACTSC 55, Miles CJ, 6 June 2002)

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (unreported, [2001] FCA 1833, Drummond, Mansfield and Allsop JJ, 20 December 2001)

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd, (unreported, [2002] FCAFC 157, Branson, Dowsett and Weinberg JJ, 4 June 2002)

Tapp v Thamer (unreported, [2002] ACTSC 86, Miles CJ, 28 August 2002)

APPEAL FROM THE MAGISTRATES COURT

No. SCA 51 of 2001

Judge: Crispin J

Supreme Court of the ACT

Date: 19 September 2002

IN THE SUPREME COURT OF THE )

) No. SCA 51 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KATHRYN ANN GAULT

Appellant

AND: JOHN GERARD LAWSON

Respondent

ORDER

Judge: Crispin J

Date: 19 September 2002

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be upheld;

2. the conviction and orders of the Magistrate be set aside; and

3. the informations be dismissed.

1. This is an appeal against a decision of a Magistrate convicting the appellant of five counts of theft from the ANZ Banking Group Limited ("the Bank"). The relevant informations and the offences thereby charged were as follows:

* CC 2000/8696: On 10 March 1999 the appellant stole cash to the value of $377.50 belonging to the Bank ("the first charge");

* CC 2000/8697: On 25 February 1999 she stole cash to the value of $985.00 belonging to the Bank ("the second charge");

* CC 2000/8698: On 10 March 1999 she stole cash to the value of $500.00 belonging to the Bank ("the third charge");

* CC 2000/8699: On 18 March 1999 she stole cash to the value of $889.00 belonging to the Bank ("the fourth charge"); and

* CC 2000/8730: On 27 April 1999 she stole cash to the value of $800.00 belonging to the Bank ("the fifth charge").

2. The appeal was initially argued on 29 October 2001 and on 14 November 2001 I gave judgment upholding the appeal on the ground that, in my opinion, charges relating to the theft of property valued at less than $1,000 could only be prosecuted under s 99A of the Crimes Act 1900 ("the Crimes Act") and that the relevant limitation periods had expired prior to the commencement of proceedings. On 20 June 2002, a Full Court of the Federal Court of Australia upheld an appeal from that decision and remitted the matter for the determination of other issues that had not been resolved. Accordingly, I now turn to consider the other grounds of appeal from the decision of the Magistrate.

3. The appellant had been the Treasurer of the Canberra International Clay Target Club Inc ("the Club") and had the custody of two cheque books for accounts which the Club held with the Bank. It was her responsibility to ensure that the Club met its financial obligations and she usually presented outstanding accounts for approval by the Club's Executive at monthly meetings. Cheques were then drawn and signed by the appellant and one of two other authorised signatories. However, one of the co-signatories, Mr Turner, had apparently adopted a practice of signing blank cheques so that the appellant might use them to pay bills during the periods between the regular meetings of the Executive. The Crown alleged that the appellant had obtained the amounts of cash specified in the informations by presenting cheques which had been drawn on the Club's accounts and had been executed both by the appellant and Mr Turner.

4. All of the relevant cheques had been made payable in cash and all had been presented at the Fyshwick branch of the Bank where the accounts were held. On four of the cheque butts the appellant had written notations. On the butt of the cheque relevant to the second charge she had written, "NSW Firearms Council safety tests", on that relevant to the third charge she had written, "DELP rent", on that relevant to the fourth charge she had written, "F & G capitations", and on that relevant to the fifth charge she had written, "Jim Ellis concrete". She had left the cheque butt relevant to the first charge blank.

5. The appellant did not attend the Club's Annual General Meeting on 16 May 1999 and Mr John Jasnos was elected as Treasurer in her stead. He subsequently asked for the books and the appellant told him that they were with the auditors but when he contacted the auditors he was told that they did not have them. He finally obtained the books some four to six weeks later in circumstances that were not fully explained but found that they contained no entries relating to any payments or transactions between February and May 1999. Subsequent investigation revealed the five cash withdrawals which formed the subject of the charges.

6. There was no direct evidence to establish who had presented the cheques or what had become of the money thereby obtained. Nor were there any admissions in relation to those matters. The Crown case was entirely dependent upon circumstantial evidence. Hence, it was incumbent upon the Crown to demonstrate that in each case guilt was not merely a rational inference but the only rational inference that could be drawn from the combination of facts and circumstances proven in evidence.

7. The Magistrate found that there were a number of facts and circumstances pointing to the guilt of the accused, including the following:

* all of the cheques had been drawn and validated by the appellant;

* she had had custody of the chequebooks;

* it had not been suggested that the cheque books had been lost;

* all five cheques had been presented at the same branch;

* the appellant banked at the same bank;

* all had been made out to cash;

* the cheque butts had been completed by the accused;

* in the four cases in which the names of people or organisations had been recorded on the cheque butts, payment had not been received by those nominated as the intended recipients.

8. Her Worship acknowledged that she was obliged to take into account evidence that the appellant had been a person of good character but described the case against her as "overwhelming" and proceeded to convict her on all counts.

9. Mr Gill, who appeared for the appellant, argued that the evidence was insufficient to establish some of the facts and circumstances mentioned.

10. In particular, he challenged the finding that not only were all of the cheques cashed at the same branch of the same bank but that "they were all cashed, I am told, and again there is no dispute, at the same bank at which the defendant does bank". This observation seems to be factually incorrect. In fact, the only evidence of any account in the name of the appellant consisted of statements of her account with the CPS Credit Union, the registered office of which is apparently in Mawson ACT, and the Crown did not allege that there had been any concession that might have supported the finding.

11. Furthermore, it was plainly inappropriate to dismiss the possibility that the cheque books may have been lost or stolen and used by someone else merely because there had been no evidence of any such theft or loss. The absence of any evidence as to whether or not some event occurred is not a fact or circumstance from which guilt may be inferred.

12. Mr Gill also argued that the evidence did not establish that those nominated on the cheque butts as apparent or intended recipients had not received payment and that, in any event, the guilt of the accused was not the only rational inference that could be drawn from the facts and circumstances that had been proven.

13. Before turning to the evidence of the individual transactions, I should mention that there was little evidence of the nature and extent of the Club's financial dealings. There was evidence that the Club had about 80 to 100 members, that membership fees were $50.00 per annum and that the Club also received fees on behalf of the Australian Clay Targets Association and the New South Wales Field and Game Association Inc. It also obtained revenue from what were described as "organised shoots" conducted on weekends and on Tuesday nights. It had commenced building a clubhouse in the "mid 1990s" and Mr Ellis had apparently been supplying it with concrete during 1999. However, there was little else to provide any indication of whether the Club's activities may have given rise to a legitimate need for its treasurer to obtain cash from time to time. There was no evidence as to whether other builders or tradespeople worked on the clubhouse and, if so, what arrangements may have been made to pay them. More particularly, there was no evidence as to whether any such people may have demanded payment in cash or as to whether tradespeople or club members working on a voluntary basis may have requested money for the purchase of materials. There was also no evidence as to whether the Club maintained a cash float for the provision of change to members or even whether it had a petty cash tin.

14. As I have mentioned, the appellant was the treasurer of the Club and it was her responsibility to ensure that outstanding accounts were paid and that there were funds available to meet legitimate expenses. Hence, it was incumbent upon the prosecution to prove not only that the appellant obtained the cash which was the subject of each charge but also to exclude the possibility that the money may have been expended in meeting the Club's liabilities. The fact that no records were kept for a period of three months provides ample grounds for suspicion but it does not, of itself, provide a ground for inferring that any particular transaction may have been carried out dishonestly. Indeed, it would be very dangerous to assume that anyone who has fallen behind in the maintenance of the books of account of an organisation must have been motivated by a desire to conceal offences of dishonesty, especially when the person was working on a voluntary basis. There is certainly no principle of law that would justify an assumption that any unexplained or improperly recorded expenditure must be attributed to theft.

15. In relation to the first charge the only relevant evidence appears to be that a cheque for the sum of $377.50 payable to "cash" was drawn by the appellant, signed by her and Mr Turner, and subsequently cashed at the Fyshwick branch of the Bank. At least if this charge is considered in isolation, the evidence is clearly insufficient to prove that the appellant cashed the cheque or to exclude the hypothesis that, even if she did cash the cheque, she obtained the cash for some legitimate purpose relating to the Club's activities.

16. So far as the second charge is concerned, the prosecution relied upon the apparent inconsistency between the entry on the cheque butt and a terse printout of cheque details which Constable Lawson said he believed to be a copy of a record of payments made to the New South Wales Firearms Safety Council which had been sent to him by facsimile. The latter document, which was admitted without objection, consists of a list of six payments which the Club had apparently made by cheque between July 1998 and February 2001. The evidence showed that no payment had directly been made with the cheque in question. That fact was, of course, obvious from the evidence that the cheque had been cashed at the Fyshwick branch of the Bank. The Crown submitted that the contents of the document sent to Constable Lawson excluded the possibility that the proceeds of the cheque had been paid to the Council in cash. However, that proposition seemed to have been dependent upon an assumption made by Constable Lawson and, perhaps, an inference drawn from the heading "Dollars by club and cheque amount". The non-receipt of the cash in question could have been validly relied upon as an intermediate fact forming an indispensable basis for an inference of guilt only if proven beyond reasonable doubt (see Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 per Mason CJ at 576) and, in my opinion, neither the printout nor the assumption of Constable Lawson proved the fact to that standard. Furthermore, a finding to that effect would not, of itself, have proven the guilt of the appellant to the requisite standard.

17. The evidence was somewhat different in relation to the third charge. When Mr Jasnos was asked to read what was on the cheque butt he omitted the "E" and read "DELP" as "DLP". He was then asked whether he could explain "what DLP is" and offered the suggestion, "Department of Land and Planning, I think, that I pay rent to". A rental statement was then tendered from the "ACT Department of Urban Services". Whilst it is true that the cheque butt also bears the word "rent", I must say that the chain of assumptions by which the prosecution sought to establish that the letters "DELP" were intended to denote the Department of Urban Services does not seem wholly compelling. Furthermore, whilst there was evidence that the Club leased land from the ACT Government, there was no evidence as to whether the Club may have rented other premises or, perhaps, vehicles or other equipment, whether for purposes associated with the construction of the clubhouse or otherwise.

18. In any event, the records of that Department indicate that an amount of $600 had been paid on 28 February 1999 for rent owed by the Club. That was only the day before the cheque was drawn, though another nine days passed before it was cashed. The financial records of the Club did not reveal that any other cheque had been drawn for this payment. I accept that it seems unlikely that the appellant would have paid the outstanding rent out of her own pocket without recording the payment and then sought a partial reimbursement later, but in the absence of any records of the financial dealings of the Club over a three month period it is impossible to say just how irregularly the accounts may have been maintained during that period. Whilst there is an obvious discrepancy in the amounts, it should be noted that the cheque for $500.00 forming the subject of this charge and the cheque for $377.50 forming the subject of the first charge were cashed on the same day and it would be difficult to completely exclude the possibility that the appellant may have retained some money in reimbursement for monies properly expended on the Club's behalf. The Club was a small sporting club, not a normal commercial company, and it is not inconceivable that a member of a close knit association of people committed to common goals and interests might have advanced money to enable it to overcome some short term liquidity problem. Indeed, Mr Jasnos, who succeeded the appellant as treasurer, said that he had lent the Club money and been subsequently reimbursed in cash.

19. In support of the fourth charge, the prosecution relied upon a copy of a letter from the New South Wales Field and Game Association purporting to list cheques received from the Club between May 1997 and June 1999. Constable Lawson gave evidence that the original of this letter was in the file he received in connection with the investigation. The letter was obviously written in response to another letter seeking to elicit information of that nature but the first letter was not tendered in evidence. In any event, the cheque in question had plainly been cashed at the Fyshwick branch of the Bank and proof that the Association had not received a cheque for that amount again did not materially advance the Crown case. Whilst the Crown contended that the letter should be construed as proof of non-payment of any equivalent sum, it purported only to provide a "list of cheques as requested" and did not assert that the Association had not received an equivalent sum of money or even that there was no record of it having done so.

20. So far as the fifth charge is concerned, I must say that the evidence concerning the payment ostensibly made to Mr Ellis for concrete seems somewhat unsatisfactory. Mr Ellis gave evidence that he had never seen either the cheque or the cheque butt prior to being shown them by Mr Jasnos and another member of the Club's staff. Indeed, he said that he had been in South Australia both at the time the cheque was written and when it was presented. He said that on other occasions he had been given cheques so that he could buy things for the clubhouse and that there had also been occasions when he had paid cash for goods or services and had been subsequently reimbursed by the club with a cheque. At one point in his evidence he claimed that "all cheques had been made out to J Ellis" but at another offered the less emphatic assertion that such cheques "should be made out to me". There was no evidence as to whether he presented accounts for any monies he claimed to be due from the Club or as to whether the Club sought receipts for amounts he had spent on its behalf. He did give evidence that he had no recollection of receiving any payment from the club in cash but added the less than wholly reassuring comment: "by rights it should be documented through the books". Whilst the Magistrate obviously enjoyed the advantage of seeing and hearing Mr Ellis give evidence and was therefore in a better position to make a judgment as to his credibility, it seems difficult to dismiss Mr Gill's submission that the latter comment may have betrayed at least some doubt as to the accuracy of his recollection. More importantly, when asked whether he had asked for payment in the amount of $800 for concrete as suggested on the cheque butt he did not give an unequivocal denial, but responded only by saying "not for concrete". Mr Jasnos gave evidence that even though he had issued another cheque when Mr Ellis subsequently requested payment, he was not sure of whether to believe that he had not in fact received the earlier cheque.

21. As her Worship rightly acknowledged, in considering whether the guilt of the appellant was the only rational inference that could be drawn from the relevant facts and circumstances it was necessary to take into account the evidence of her previous good character. That consideration may have been of particular relevance in this case because the evidence revealed that she had been the Club's treasurer for a period of two years and that she had fulfilled that role in a voluntary capacity. There was no evidence to suggest any prior acts of dishonesty.

22. An appeal from a Magistrate is an appeal by way of re-hearing. If the Court considers that there is a reasonable doubt as to the appellant's guilt then the appeal must be allowed. See Patrick John Sikorski v Peter Gritsch (unreported, [2002] ACTSC 55, Miles CJ, 6 June 2002). That does not, of course, mean that the findings of a Magistrate should be treated as irrelevant. On the contrary, the decision should be disturbed only if the appellate court considers it to be wrong and, in considering that issue, due allowance must be made for the advantage enjoyed by the Magistrate in assessing the credibility of witnesses by reference to their demeanour in the witness box and in assigning weight to various factors affecting findings as to credibility. As the High Court has observed, an appellate court is placed in a "position of real disadvantage" compared with that of a trial judge or, for present purposes, the Magistrate, from whom the appeal is brought. See Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472. Hence, as Brennan, Gaudron and McHugh JJ said at 479, findings of fact by a trial judge based upon the credibility of the witness should not be set aside merely "because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact". Their Honours affirmed that "the finding must stand unless it can be shown that the trial judge `has failed to use or has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the evidence' or which was `glaringly improbable'". The importance of these principles must not be overlooked but, on the other hand, they should not be seen to deprive appellate courts of the duty of appropriately reviewing the evidence when required by the grounds of appeal. Indeed, in Devries' case, Deane and Dawson JJ warned, at 480, that "[I]f the challenged finding is effected by an error of principle or a demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant". More recently, in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306 Gaudron, Gummow and Hayne JJ warned, at 321, that in some circumstances the demeanour of a witness may provide too fragile a base to support a finding as to his or her credibility. Furthermore, Kirby J pointed out, at 615, that respect for the advantage of a trial judge in hearing the witnesses did not relieve appellate courts of the duty "to make up their own mind; to conduct appeals on the facts by way of rehearing; to draw inferences from the facts for themselves; to give the judgment and make orders that should have been given at the trial".

23. The most recent statement of principle seems to have been that of the Full Court of the Federal Court of Australia in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (unreported, [2001] FCA 1833, Drummond, Mansfield and Allsop JJ, 20 December 2001) in which Allsop J stated:

[28]. . . First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in the light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in [various authorities]. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge's views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.

[29] The degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge. Sometimes, where matters of impression and judgment are concerned, giving "full weight" or "particular weight" to the views of the trial judge might be seen to shade into a degree of tolerance of divergence of views . . . In such cases the personal impression or conception of the trial judge may be one not fully able to be expressed or reasoned . . . However, as Hill J said in Commissioner of Taxation v Chubb Australia (1995) 56 FCR 557, 573 . . . "giving full weight" to the view appealed from should not be taken too far. The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.

24. See also Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (unreported, [2002] FCAFC 157, Branson, Weinberg and Dowsett JJ, 4 June 2002); and Tapp v Thamer (unreported, [2002] ACTSC 86, Miles CJ, 28 August 2002).

25. In the present case, Mr Gill did not challenge any findings based upon the credibility of witnesses and, as I have mentioned, the Magistrate apparently acted upon mistaken assumptions that the appellant had banked at the branch where the cheques were cashed and that any hypothesis that the cheque books had been lost could be dismissed because there was no evidence to that effect. Hence, the deference that should be given to findings of credibility by the Magistrate is of little, if any, relevance to the overall review of the evidence which the unsafe and unsatisfactory ground of appeal requires me to undertake.

26. Having reviewed the whole of the evidence, I have concluded that the guilt of the appellant was not the only rational inference that could be drawn from the combination of facts and circumstances proven.

27. It is, I think, most likely that the appellant cashed the cheques. As I have mentioned, it was plainly inappropriate to dismiss the possibility that the cheque books may have been lost or stolen and used by someone else merely because there had been no evidence of any such theft or loss. However, there are other grounds for suggesting that this possibility was unlikely. At the hearing before the Magistrate it was admitted that it was the appellant's handwriting on the cheques and the discontinuity between the notation on four cheque butts and the word "cash" written on the corresponding cheques could not be explained by their subsequent theft or loss. Furthermore, the dates on the cheques range from 25 February 1999 to 27 April 1999 and cheques were cashed on occasions between those dates. It is possible that she had written some out in advance and that another person who had stolen or found them was obliged to wait until the due dates before cashing them, but that seems unlikely. Nonetheless, the standard of proof in a criminal case is a very stringent one and one must not readily dismiss the possibility that one person may have acted in an inappropriate or even silly manner and that another may have exploited opportunities thereby presented.

28. Furthermore, the evidence does not prove that, if the cheques were cashed by the appellant, she obtained the cash for her own use rather than for the purpose of meeting legitimate expenses of the Club or obtaining reimbursement for expenditures already incurred on its behalf. Whilst that also seems somewhat unlikely, the plausibility of such an hypothesis must be considered by reference to the undisputed fact that the appellant had been a person of good character and that, having apparently faithfully fulfilled her duties as treasurer, without pay, for the better part of two years, had abruptly ceased to record the Club's financial transactions in February 1999. It is possible that she did so to ensure that she left no indication of theft but the evidence does not exclude other possibilities. For example, she may have felt unable to continue due to stress or may have simply lost her earlier enthusiasm for the work. In either event, her dilatoriness in the maintenance of records may have been accompanied by lax or haphazard practices in drawing cheques for legitimate purposes. She may have made notations on the wrong cheque butts or initially left them blank, as she did with the cheque referred to in relation to the first charge, and at some later time made notations based on reconstruction or guesswork and confirmed them with other cheques. One simply does not know.

29. This was not a case as in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 where apparently incriminating evidence may have been capable of an explanation by disclosure of additional facts known only to the appellant and her failure to provide such an explanation could properly be taken into account in the evaluation of the case against her. This principle is of limited application. See Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50. It does not relieve the Crown of the obligation of proving that the guilt of the accused is the only rational inference that may be drawn from the facts and circumstances proven in evidence.

30. What must ultimately be determined is whether the evidence adduced before the Magistrate was sufficient to prove the guilt of the appellant beyond reasonable doubt. That requires due consideration of whether the facts and circumstances proven in evidence were so damning that they admitted of no reasonable hypothesis consistent with her innocence. In my opinion, the evidence revealed a skein of suspicious, even highly suspicious, circumstances but some at least may have been attributable to nothing more sinister than inadequate records and sloppy bookkeeping. Having reviewed the whole of the evidence in the light of the principles adverted to earlier, I have come to the firm conclusion that the decision of the Magistrate was wrong and that the evidence did not prove to the requisite standard that the appellant cashed the cheques and that she did so dishonestly.

31. Finally, even if I had not been of that opinion, I would have been obliged to uphold the appeal because the nature of the charges alleged in the informations did not reflect either the nature of any offences disclosed by the evidence or the essential character of the case presented by the prosecution. The informations alleged offences consisting of thefts of money belonging to the Bank but, in my opinion, the evidence relied upon in support of these charges suggested that any thefts were thefts from the Club.

32. The common law concept of theft has been expanded by s 84 of the Crimes Act which at the relevant times provided as follows:

For the purposes of this part, a person should be taken to steal if he or she dishonestly appropriates property belonging to another person with the intention of permanently depriving that other person of that property

33. Section 85 of the Crimes Act provided, inter alia, that for this purpose property should be taken as belonging to any person who had possession or control of it or who had any proprietary right or interest in it (other than an equitable interest arising only from any agreement transfer or grant in interest).

34. Section 86 provided that a person should be taken to have appropriated property if, inter alia, he or she had obtained by deception the ownership, possession or control of the property for himself or herself or for any other person or had adversely interfered with or usurped any of the rights of an owner of the property.

35. Section 87 provided that a person who appropriated property belonging to another should be taken, for relevant purposes, as having intended to deprive the other person of that property permanently if his or her intention had been to treat the property as his or her own to dispose of regardless of the rights of the other person.

36. Hence, in relation to each charge, it was incumbent upon the Crown to prove each of the following elements:

* the accused appropriated the cash specified in the charge;

* the cash belonged to the Bank at least in the sense that the Bank had possession or control of it or some proprietary right or interest in it;

* the appropriation was carried out dishonestly; and

* the appellant intended to deprive the Bank of that property permanently, at least in the sense of treating property as her own to dispose of regardless of the Bank's rights.

37. There can be no doubt that a person who obtains cash from a bank by the presentation of a cheque "appropriates cash thereby obtained". Equally, there can be no doubt that the cash was "property belonging to" the Bank, at least until the time of the impugned transactions.

38. However, it is difficult to see how a withdrawal facilitated by a cheque validly signed by authorised signatories of the account holder could properly be described as a dishonest appropriation of property belonging to the Bank. In such circumstances the transaction would have been an entirely valid one so far as the Bank was concerned and its indebtedness to the customer would have been pro tanto discharged by the payment of the money in question. Furthermore, to return to the language employed in s 86 of the Crimes Act, the cash would not have been obtained by deception and there would have been no adverse interference with, or usurpation of, the Bank's rights. It is important to ensure that the very breadth of the statutory definitions of the elements of theft do not obscure the fact that they must be interpreted in the context of the prosecution of a single offence. Hence, if the charge alleges a theft of money belonging to a bank then the requirement that the appropriation must also be dishonest means that it must be dishonest vis a vis the bank.

39. It should also be noted that subs 86(4) makes it clear that an appropriation is not to be regarded as dishonest if done in the belief that the person appropriating the property had a lawful right to deprive the other person of the property. A person cashing a cheque duly signed by the authorised signatories of the account does have such a right. He or she receives the money as a bailee and, depending on the circumstances, perhaps also as a trustee for the customer and the custody, possession or proprietary rights which the Bank may have had in relation to that money come to an end. Any theft of the money in these circumstances is a theft from the customer rather than a theft from the Bank though, of course, the position might well be different if the withdrawal had been facilitated by a forged cheque and the Bank's debt to the customer remained unaffected by the payment.

40. The issue is of potential importance because of the requirement in s 87 that the appellant must have intended to treat the property as her own to dispose of "regardless of the interests of that other person". It may be readily presumed that almost anyone who withdraws money from a bank account intends to spend it without regard for the interests of the bank. Hence, a failure to distinguish between a legitimate appropriation from the bank to the customer, albeit one carried out for a dishonest motive, and a subsequent misappropriation of the cash from the customer beneficially entitled to it could produce a situation in which the requirement to prove one element of the offence of theft was effectively nullified.

41. For these reasons, I have concluded that if the facts alleged in the present case supported the commission of any thefts they were thefts from the customer and not from the Bank. Hence, the charges pleaded in the informations could not have been sustained.

42. The appeal must be upheld.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 19 September 2002

Counsel for the appellant: S Gill

Solicitor for the appellant: pappas, J - attorney

Counsel for the respondent: S Cronan

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 29 October 2001, 19 August 2002

Date of judgment: 19 September 2002