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Court of Criminal Appeal 2 February 2017

Taylor v R

[2017] NSWCCA 2

Fraud & dishonestyTheft & property
APPEAL CRIMINAL JUDGE ALONE TRIAL NATURE OF APPEAL APPEAL NOT IN NATURE OF REHEARING CRIME APPEAL

Citation: Taylor v R [2017] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 2 February 2017
Judge(s): Basten JA at [1]; R A Hulme J at [117]; Schmidt J at [128]

Background

The appellant was employed as the manager and licensee of a Sydney hotel between September 2009 and February 2012. He was convicted after a judge alone trial of two counts of stealing from his employer, with the total amount alleged to exceed $500,000. The prosecution case rested on discrepancies in daily trading sheets the appellant prepared, which revealed inflated figures for ATM cash restocking and fictitious poker machine jackpot payouts.

The defence did not dispute the discrepancies in the records. Instead, it argued that the amounts taken were authorised under a bonus scheme negotiated at the commencement of employment. The prosecution countered that the alleged bonus scheme letter was a fabrication, relying on evidence from all three directors of the hotel's owning company that no such scheme had been agreed.

After a private investigator and an accountant engaged by the hotel owners confronted the appellant, he participated in a meeting during which admissions were said to have been made. He subsequently signed a deed agreeing to repay identified amounts, and later wrote a letter explaining his failure to do so. The owners then reported the matter to police. The admissibility of these admissions, the deed, and the letter were all contested on appeal.

  • Whether the private investigator who questioned the appellant was an "investigating official" within the meaning of s 85 of the Evidence Act 1995 (NSW), such that admissions made to him were subject to reliability requirements
  • Whether the deed (in which the appellant agreed to repay money) and a subsequent explanatory letter constituted admissions and were admissible in evidence
  • Whether the trial judge's reasoning was adequate to support the convictions
  • Whether the verdicts were unreasonable or could not be supported by the evidence

Decision

The s 85 question: Was the private investigator an "investigating official"?

Section 85 of the Evidence Act restricts the admissibility of admissions made to investigating officials in the course of questioning, unless there is evidence the admission was made in circumstances likely to produce reliable evidence. The definition of "investigating official" in the Act's Dictionary includes persons who have the power to detain or to influence a decision whether to prosecute. The Court held that the private investigator, engaged by the employer rather than any law enforcement body, did not hold such powers. On the evidence, he was not capable of influencing a prosecution decision at the time of questioning. Accordingly, s 85 did not apply to the admissions made at the February 2012 meeting.

The deed and the explanatory letter

The Court examined whether the deed, executed after the appellant received legal advice and agreeing to repay identified sums, constituted an admission of guilt. The Court found the deed did contain admissions relevant to the charges and was admissible. The subsequent letter explaining the appellant's failure to repay was also found to be admissible as a further admission.

Adequacy of the trial judge's reasoning

Despite rejecting the evidentiary challenges, the Court identified significant deficiencies in the trial judge's reasons. The judgment failed adequately to address key aspects of the defence case, particularly the submission that the hotel's bookkeeper, who was also a director, could not have missed the discrepancies in the trading sheets had the takings been unauthorised. The Court found the reasons did not sufficiently grapple with this central factual contest, creating doubt about whether the convictions were properly supported.

Result

The Court granted leave to appeal and, finding the convictions could not safely stand given the inadequacy of the reasoning, quashed the convictions and ordered a retrial.

Orders Made

  • Leave to appeal granted
  • Convictions quashed
  • Appeal upheld
  • Matter remitted to the District Court for retrial

Key Takeaways

  • A private investigator engaged solely by a private employer, and lacking any power to detain a suspect or to influence a prosecution decision, does not qualify as an "investigating official" under the Evidence Act 1995 (NSW) Dictionary; the reliability safeguards in s 85 therefore do not apply to admissions made to such a person.
  • A deed of settlement in which an accused agrees to repay monies alleged to have been stolen can constitute an admissible admission, particularly where it was executed after the accused received independent legal advice.
  • In a judge alone trial, adequate reasons are essential. Where the judgment does not meaningfully address a central and live factual issue raised by the defence, the resulting convictions are vulnerable on appeal even if individual evidentiary rulings were correct.
  • The Court of Criminal Appeal confirmed that an appeal from a judge alone conviction is not a rehearing; appellate courts face significant constraints when reviewing findings based on credibility assessments, but those constraints do not shield a judgment whose reasoning is inadequate on its face.
  • Quashing convictions and ordering a retrial, rather than substituting acquittals, was the appropriate outcome where the evidentiary challenges largely failed but the insufficiency of the trial judge's reasoning left the verdicts unsafe.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), s 156 (employee stealing from employer)
  • Criminal Appeal Act 1912 (NSW), ss 5, 6
  • Criminal Procedure Act 1986 (NSW), ss 33, 133, 281
  • Evidence Act 1995 (NSW), ss 84, 85, 88, 90, 119, 128, 138, 184, and Dictionary (definition of "investigating official")
  • Trade Practices Act 1974 (Cth), s 155

Cases

  • Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
  • Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
  • Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
  • Australian Competition and Consumer Commission v Pratt (No 3) (2009) 175 FCR 558; [2009] FCA 407
  • Simic v The Queen (1980) 144 CLR 319
  • R v O'Donoghue (1988) 34 A Crim R 397
  • Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402
  • Beale v NSW Government Insurance Office of NSW (1997) 48 NSWLR 430
  • W v R [2014] NSWCCA 110