R v Finlayson [1912] HCA 48; (1912) 14 CLR 675 (25 June 1912)

HIGH COURT OF AUSTRALIA

The King Appellant; and Finlayson Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

25 June 1912

Griffith C.J., Barton, and Isaacs JJ.

Mitchell K.C. (with him Ham), for the appellant.

Duffy K.C. (with him C. Gavan Duffy), for the respondent.

Mitchell K.C. was not heard in reply.

Griffith C.J.

The respondent was charged with stealing three small sums of money the property of the Crown in right of the Government of Western Australia. He was an officer in the service of the Government, called a supervisor of roads, having under him a gang of men. The practice as to paying the men was for the respondent to send in periodically to the Public Works Department a document called a wages sheet, showing the names of the men, the number of days on which they were respectively said to have worked, and the amount payable to each. That wages sheet would then be sent back to him with cheques drawn to the order of the several men for the amounts due to them respectively. The respondent would then hand the cheques to the men and take their signatures as receipts on the face of the wages sheet.

He is charged with having appropriated three cheques drawn to the order of one Kinsella who was sometimes working under him. It was alleged—and there is now no doubt about the truth of the allegation—that the respondent did not give the cheques to Kinsella, but that he wrote Kinsella's name on the pay sheets, endorsed the cheques with Kinsella's name, imitating his signature in both cases, wrote his own name under Kinsella's, took the cheques to the bank, received the money and kept it. The prosecution, anticipating the defence that these irregular transactions were of an ambiguous character, and were consistent with either innocence or guilt—that is, that it might have been for Kinsella's convenience to get the money for him without putting him to the trouble of going personally to the bank, or might be a deliberate attempt to appropriate the money to himself—tendered evidence to show that these three transactions were part of a system of stealing money sent to him for payment of wages.

The definition of stealing under the law of Western Australia is "fraudulently taking anything capable of being stolen or fraudulently converting it to his own use or to the use of any other person." An essential element in the case is the fraud of the accused. Fraud may be established in as many ways as it may be committed. We all know that when a man is charged with one offence you cannot prove that he has been guilty of another offence for the purpose of showing that he is a man of bad character, and so likely to have committed the offence with which he is charged. But there are exceptions to that rule which are dictated by common sense. The rule has been laid down in several cases, amongst others in the leading case of Makin v. Attorney-General of New South Wales[1], where it was applied to a trial for murder. In R. v. Bond[2], the rule was concisely laid down by Bray J. in words which I should like to adopt as my own. He said[3]:—"A careful examination of the cases where evidence of this kind has been admitted shows that they may be grouped under three heads: 1. Where the prosecution seeks to prove a system or course of conduct. 2. Where the prosecution seeks to rebut a suggestion on the part of the prisoner of accident or mistake." I need not read the third. A little further on he said[4]:—"The ground on which in cases of this class evidence is admitted of acts not charged in the indictment is, in my opinion, that the case which the prosecution seeks to prove is that the prisoner has in his mind a scheme or plan (say) for obtaining money by fraud, that the act with which the prisoner is charged is part of a planned fraud, and that the other acts of which evidence is sought to be given when proved will show the existence of the plan, and, therefore, the guilty mind of the prisoner." I adopt that as the rule applicable to the present case. It was, therefore, permissible in order to show that the acts with which the accused was charged in the indictments were parts of a scheme or system, to show that he had done the same thing with regard to other employés. It was accordingly proved that he had forged the signatures of two other men to the wages sheet and cheques, endorsed the cheques with his own name, obtained the money and kept it.

The learned Chief Justice of the Supreme Court seems to have thought that the evidence was admissible, in the first instance, when it was given. I think that of that there can be no doubt. But he seems to have thought that it was only admissible to rebut a suggested defence of accident or mistake. Afterwards the prisoner himself gave evidence, and set up the defence that, although he had obtained the money he had paid it to the men. They all swore that he had not done so, and the jury did not believe him. The learned Chief Justice thought that, although the evidence was properly admitted in the first instance, it then became irrelevant, and ought to have been withdrawn from the notice of the jury. McMillan J. agreed in the result, but gave no reasons. Burnside J. seems to have thought that the evidence was not admissible at all, and at any rate that the Judge ought to have withdrawn it from the jury. I confess I cannot follow the argument. It was essential for the jury to find that what the accused did was done with a fraudulent intention. And, surely, the evidence was as relevant for that purpose at the end of the trial as at the beginning. The respondent did not say that he had failed to pay over the money by accident or mistake, but that he had paid it. He flatly contradicted the witnesses who said that they had not received the money from him. In weighing his testimony against theirs and considering whether they should accept his statement that he had paid the money to them, it was just as important for the jury to weigh the evidence of the other persons defrauded as the evidence of the person to whom the sums mentioned in the indictment were payable. The facts therefore remained relevant for the purpose of determining whether the taking charged was fraudulent or not. Even if it had become irrelevant there is no reason why it should have been formally withdrawn from the jury. The Crown is entitled to anticipate several possible loopholes of escape, and naturally endeavours to close them all up. If finally the accused determines to rely on only one loophole, the evidence as to the rest need not be formally withdrawn from the jury.

I have dealt with the ground upon which the conviction was quashed. Mr. Duffy suggested that there might be other grounds for quashing it. I think I have answered all his arguments by what I have already said. An essential element of stealing is the fraudulent intention, and any evidence to show the existence of that fraudulent intention is admissible. It must not, of course, be too remote. Evidence to show a system is clearly relevant. I think therefore that the appeal must be allowed.

Barton J.

I am of the same opinion.

Isaacs J.

The matter seems to be very concisely stated in Lord Halsbury's Laws of England, vol. ix., p. 380:—"Evidence cannot be given for the prosecution to prove that the defendant is a bad character or has a propensity to commit criminal acts of the same nature as the offence charged. But in cases where a guilty knowledge or intention or design is of the essence of the offence, proof may be given that the defendant did other acts similar to those which form the basis of the charge. Such acts may be proved, whether they were done before or after the acts which form the basis of the charge, and even if they form or have formed the basis of other charges. Such evidence is admissible to show not that the defendant did the acts which form the basis of the charge, but that, if he did such acts, he did them intentionally and not accidentally, or inadvertently, or innocently, or that they formed a part of a system."

Many cases are cited in the note supporting that paragraph, and I will only refer to one specially; that is, R. v. Stephens[5]. I refer to it by name because the principle on which the matter rests is very succinctly and clearly stated and exemplified in the case. That principle is that the fraudulent character of the act is an essential ingredient of the charge, and the onus of showing this is on the prosecution. As an isolated instance the act might be innocent—even though done neither by accident or mistake. But if shown to be part of a system in itself fraudulent its character may be found not to be innocent. I will only add, that, if the evidence tendered does not tend to show that the offence is part of one system, it is not admissible, but if the Judge thinks the evidence is sufficient to connect the act charged with the other acts as parts of one system, then it is admissible.

Appeal allowed. Order appealed from discharged. Conviction restored. Case remitted to the Supreme Court to do what is just and consistent with this judgment.

Solicitors, for the appellant, Lawson & Jardine for F. L. Stow, Crown Solicitor for Western Australia.

Solicitors, for the respondent, L. Waxman for Penny, Hill & Nuirn, Perth.

[1] (1894) A.C., 57.

[2] (1906) 2 K.B., 389.

[3] (1906) 2 K.B., 389, at p. 414.

[4] (1906) 2 K.B., at p. 415.

[5] 16 Cox C.C., 387.