Godfrey v Queensland Police Service [2019] QDC 66 (3 May 2019)

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CITATION:	Godfrey v Queensland Police Service [2019] QDC 66
PARTIES:	GODFREY, Kristie Fay (Appellant) v QUEENSLAND POLICE SERVICE (Respondent)
FILE NO/S:	DC No 2592 of 2018
DIVISION:	District Court
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	Magistrates Court at Richlands
DELIVERED ON:	3 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 March 2019
JUDGE:	LOURY QC DCJ
ORDER:	1. Refuse application to adduce new evidence 2. Appeal against conviction allowed to the extent of setting aside so much of the verdict and judgement as refers to the appellant being found guilty of dishonestly obtaining two laptop computers 3. Appeal against sentence is allowed 4. Set aside sentence imposed 5. In lieu, the appellant is convicted and fined $500. 6. Conviction is not recorded
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was a public servant and was charged with dishonestly obtaining two laptops and a tablet device from her employer – where the appellant was found guilty of fraud – where the Magistrate rejected the appellant’s evidence – where the Magistrate failed to consider whether the prosecution had negatived the appellant’s version of events as a reasonable possibility – where the appellant applied to adduce new evidence – whether the Magistrate erred by failing to reveal his reasons behind his verdict – whether the verdict was unreasonable once consideration was given as to whether the prosecution had negative the appellant’s case – whether the sentence is manifestly excessive Criminal Code Act 1899 (Qld) s 22, s 24 Justices Act 1886 (Qld) s 222, s 223 Penalties and Sentences Act 1992 (Qld) s 12 Douglass v The Queen [2012] HCA 34; [2012] 290 ALR 699, cited Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, cited Liberato v R [1985] HCA 66; (1985) 159 CLR 507, cited Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 Pavlovic v Commissioner of Police [2006] QCA 134; [2007] 1 Qd R 344, cited R v Brown; Ex Parte Attorney-General [1993] QCA 271; [1994] 2 Qd R 182, cited R v SDE [2018] QCA 286, cited
SOLICITORS:	Brisbane Criminal Lawyers for the Appellant Director of Public Prosecutions (Queensland) for the Respondent

[2] The appellant was a Queensland public servant employed with the Public Safety Business Agency (“PSBA”) at the relevant time. A search warrant was executed at her home on 14 October 2017. She was found in possession of two laptop computers each labelled with an asset number, indicating they were the property of the PSBA. She was also found in possession of a tablet which she admitted at trial, she had removed from the police academy. She was charged that she had dishonestly obtained two laptops and a tablet device from the Public Safety Business Agency of which she was an employee.

[3] The appellant was represented at trial. Her case was that she had authority from her supervisor, Mr Christos Maliahovas to take the two laptop computers for personal use. She had taken the tablet to repair it intending to give it to another employee. After a two day trial, she was convicted of fraud.

[4] Detective Sergeant Sharon Pickett executed the warrant and located the relevant property on 14 October 2017. The appellant admitted to her during the search that the two laptops had come from the PSBA. One was an Acer laptop with the asset number PC517381 and the other a Dell laptop with asset number PC516921. The tablet was not able to be confirmed by any records as belonging to the PSBA, however, the appellant testified that it had been found by a police recruit at the academy in a storeroom and given to her by that recruit. She had taken it home intending to repair it. The charge was amended with the consent of the appellant at the conclusion of the trial to allege that all the property belonged to the State of Queensland.

[5] The PSBA records tendered indicated that the Dell laptop was recorded as “pending disposal”. Its location was recorded as being at Police Headquarters as at 11 February 2016. Mr Damien Russell Davies-Crampton, the appellant’s AO7 Resource and Infrastructure Manager (and Mr Maliahovas’ supervisor) testified that equipment that was “pending disposal” was stored in a storeroom on level 1 of Police Headquarters. Access to that room was limited to those who were provided with a security fob. There was no evidence led as to whether the appellant had such a fob. She testified that she did not.

[6] In relation to the Acer computer, the records indicated that it was installed on site at the police academy. Its last recorded location was 9 December 2013. A process called “tech refreshing” had taken place on 5 April 2016. No evidence was lead as to what that meant.

[7] Ms Kim Kilshaw was, between June 2014 and December 2016, the Device Co-Ordinator with the PSBA. That role involved her creating processes for the ordering, record maintenance and disposal of desktop and laptop computers.

[8] Ms Kilshaw said that the role of a technical support officer (of which the appellant was one) was to identify devices that needed to be disposed of by the agency. That might be because a replacement program was underway or because a device was broken and was outside the warranty period. Once the devices were identified, a list of devices for disposal was created. That list was sent to Ms Kilshaw. She checked certain details and would then provide the list and associated paperwork to an Executive Director for approval. Once approval has been given for the devices to be disposed of, the paperwork would go back to the technical support officer with instructions to say that “the pick-up” is right to proceed. A third party vendor would collect the devices and confirm to Ms Kilshaw whether the device was to be sold at auction or destroyed. Ms Kilshaw’s uncontested evidence was that only the Executive Director could authorise the disposal of a device. Neither, Mr Maliahovas nor Mr Davies-Crampton held or acted in the position of Executive Director.

[9] Ms Kilshaw testified that she had provided a presentation to staff at which the appellant was present. That presentation clarified her own role and how it assisted the technical support teams. The presentation included detail from ordering to recording of devices and the disposal process. Included in the presentation was information as to who had authority to dispose of an asset. That presentation was given on an unknown date, between April and October 2017. Ms Kilshaw also said that around June 2015, before the presentation, correspondence was sent to the technical support teams to ensure that the disposal process was being followed, as she had implemented. Ms Kilshaw said that the obtaining of items destined for disposal, for personal use was not permitted.

[10] Ms Carolina Bruce was the Director of ICT Strategy and Business Services with the PSBA. At the time the investigation commenced the appellant was working in Ms Bruce’s branch. A number of emails were brought to her attention which had been sent and received from the appellant’s email account which indicated that she had been requesting particular assets. As the emails suggested non-compliance with established processes for the disposal of public sector assets, an investigation was launched.

[11] An email was admitted, which reflected that on 3 February 2016 the appellant sent an email to Damien Davies-Crampton, which said:

[13] Further emails tendered demonstrated that on 18 March 2016, the appellant sent an email to Sean Foad asking “any word on those PC write off’s that Damien was going to do for Neil and me?”. The response from Mr Foad was that nothing had been organised to his knowledge.

[14] Further emails were admitted which indicated that the appellant had asked Mr Maliahovas and Mr Foad for an iPhone for the personal use of her husband.

[15] A further email was admitted which indicated that on 4 October 2017 Mr Neil Sluyters sent an email to the appellant which said “Need that PC back???? Damien did not write-off”. Part of the email trail that was sent to the appellant included an email from Ms Kilshaw to Mr Sluyters which indicated that it was best he retrieve some PC’s and dispose of them in accordance with proper process.

[16] Ms Bruce also testified that policies existed for the disposal of assets and that training had been provided to all persons who worked within the PSBA in relation to property management.

[17] Mr Damien Russell Davies-Crampton testified that the appellant worked for him. The technical service unit was responsible for the support and maintenance of the current fleet of Queensland Police devices, the roll-out of new devices and the disposal of old devices. Each device was designated an asset number and designated by that number to an individual or a work unit. That number was the primary number used to track where devices were moved at any point in time. Mr Davies-Crampton ceased his employment with the PSBA in mid-February 2016.

[18] Mr Davies-Crampton said that once an item was designated for disposal he would be provided with a list. The device itself would be retrieved by a technical services staff member. The hard-drive would be wiped and the device would be listed for collection by an external agency. If a device wasn’t usable because it was damaged the hard drive would be taken and destroyed and the device would then be put into an electronics bin at Police Headquarters. He said that was a rare occurrence. In his time with the PSBA there were only five or six devices that were disposed of in that manner. Mr Davies-Crampton confirmed that he did not have authority to dispose of an asset himself. He said that the appellant never, to his recollection, ever asked if she could retain a device for personal use.

[19] Mr Davies-Crampton did not recognise the tablet. The asset number on it was not one that he recognised although from the number he could say that it appeared to be device that was provided to the technical services unit.

[20] Mr Davies-Crampton said that he had never given the appellant permission to acquire either of the laptops found in her possession. He said that the PSBA was fairly firm on their position with respect to taking items home for personal use. As the supervisor, he ensured the staff were aware of the processes and that they attempted to follow those processes to the best of their ability.

[21] At the time of his employment, Mr Davies-Crampton said that assets which were destined for auctioning by a third party would be transported from the academy (where the appellant worked) into Police Headquarters where they would be collected by the third party.

[22] Mr Davies-Crampton did not recall the appellant ever making a request to him to write-off an asset for personal use. He was shown the email dated 3 February 2016 (paragraph [11]) from the appellant to himself. He said that he did not recall seeing this email as it was sent around three days prior to him leaving the PSBA. He said that he would assume that the email meant that there were three PC’s to be picked up from the academy to be delivered to Police Headquarters.

[23] Mr Graham Rackley was the software asset management officer with the PSBA. His role involved purchasing software for the PSBA. He knew the appellant on a personal level and had been to her house. He noticed on a couple of occasions that there were a number of computers and laptops at her house. He said that they were the same machines that were used in the workplace and still had asset stickers on them. He noticed this on more than one occasion and placed the first time he had seen such items as 2016 or 2017. He had a conversation with the appellant about the computers and said “I hope that you’ve obtained them through the correct channels and that you had permission to take them”. The appellant replied that she had.

[24] Mr Rackley said that he was asked by the appellant about acquiring a large wall-mounted television for personal use. He said to her “good luck with that” because he didn’t think that it was going to be possible to obtain the television at all because of the processes that were in place.

[25] Mr Sean Foad was the information technology officer with the PSBA. His role included installing new computers and disposing of the old ones. Mr Foad said that he’d been asked numerous times by others for the ability to take a computer for their own personal use. However, he had no knowledge of anyone having actually acquired the devices. He said that the appellant had asked him for equipment. He would have checked with management but doesn’t believe it went any further than that. He specifically recalled her asking about a mobile phone. He said there might have been instances with regards to laptops or other desktops. He passed the message on and was told “No, It’s not going to happen”. He recalled having spoken to Mr Maliahovas about the mobile phone and might have approached Mr Davies-Crampton about the other requests.

[26] Mr Maliahovas was the AO6 senior information technology officer at the PSBA. He was the second-in-charge of the technical information unit. When Mr Davies-Crampton was away he would fill in for him. In 2015, the appellant and Mr Neil Sluyters both worked for the technical support unit. They were both based at the academy. In relation to the disposal process he said that old devices were kept for a minimum of two weeks. The hard-drives were then wiped. If they were faulty they would be taken out of the devices. A list was then generated and forwarded onto the technical co-ordination team who then forwarded it to the Director for signing. A third party would provide a quote for the devices and then collect them.

[27] Mr Maliahovas recalled being asked by the appellant for a spare iPhone to replace her partner’s phone which was faulty or broken. He told her that they had none. He said that she’d only just been suspended and he wasn’t going to provide anything to her at that point. He said that from time to time an iPhone would be loaned to someone if they were getting their own phone fixed and that would be recorded on a loan register. When asked if he’d ever received a request from the appellant for a laptop or computer to be retained for personal use he said that he believed that he may have been asked but he couldn’t exactly recall. He denied ever having given the appellant permission to keep a laptop for personal use in his evidence-in-chief.

[28] Mr Maliahovas’ credit was challenged in cross-examination. When asked if he had ever received a request asking for a laptop to be written off he said “possibly”. However, he said that he himself had never written off a device as that would have to go further up the chain of command. He would have forwarded such a request onto his manager. He said that he couldn’t remember whether he’d ever received a request for a device to be written-off so that it could be taken home by an employee.

[29] He said in cross-examination that he could not remember whether the appellant had ever asked him to write-off a computer for personal use. It was established that in the statement he provided to police he said that at no point did the appellant ever ask him to take a laptop marked for personal use. His explanation for the inconsistency was that he couldn’t recall having been asked by the appellant to write-off a computer for personal use so he said in his police statement, that she had not.

[30] It was suggested to Mr Maliahovas that on 16 May 2016 he received an email from the appellant which said:

I would like to take it home, as our main PC has just died. I have removed the hard drive out and will put one of ours in it at home.

Mr Maliahovas said that he couldn’t remember having received this email. It was suggested to Mr Maliahovas that he responded to that email with a further email which said “I’ll add it to the list”. Again Mr Maliahovis said that he couldn’t remember.

[31] It was further suggested to Mr Maliahovas that on 13 June 2016 he received an email which said:

Just had to let you know that the laptop I had, PC517387 is totally dead in the water – won’t even turn on. So I’ve checked the other two, and PC 517385 works. So could you please possibly swap the write-off one for me from PC517387 to PC517385? I’ll take it and wipe it today if you say it’s okay.

[32] An objection was taken to the cross-examination on the basis that it was unfair to cross-examine the witness without showing him the emails. That led to a discussion whereby the solicitor for the appellant was asked to explain the relevance of the emails. After some discussion he articulated the relevance as being that whilst Mr Maliahovas did not have the authority to write-off a computer, he was holding out to the appellant that he did have that authority. The discussion moved onto other lines of cross-examination which the learned Magistrate indicated that he would not permit as it was evidence that had previously by given by others. The discussion ended without any ruling on the relevance of the emails. Cross-examination continued but in relation to other matters.

[33] The emails were clearly relevant in my view. The emails tended to suggest that despite Mr Mahiahovas not having the authority to write-off computers, he was prepared to add devices which were intended to be taken quite improperly by staff, to a list of devices which were to be disposed of through proper channels.

[34] Mr Maliahovas was also cross-examined as to who had access to the storage room at Police Headquarters. The storeroom is where one of the devices, the Dell laptop, the subject of the charge, was last stored pending disposal. He acknowledged that he had access to the storeroom as did his entire team. He could not say whether the appellant had access to the storeroom. The appellant gave evidence that she did not have access to the storeroom. No evidence was led to contradict that assertion.

[35] It was suggested to Mr Maliahovas that he took the Dell computer from the storage room and gave it to the appellant. His response was “I don’t recall doing that”. There was some suggestion by the learned Magistrate that the witness did not understand what was being put to him. It was further suggested that he took the laptop from the storage room and gave it to the appellant on the basis that she could keep it. His responses were “Unless I was authority from higher up to do that, that’s the only way I would do it” and “unless I was authorised to do it, then I would do it. But otherwise, no”.

[36] It was suggested to Mr Maliahovas that he had a conversation with the appellant in which she asked “What’s happening to the Acer computers? Are the Acer computers just going to get thrown away?” He responded that he could not recall. It was further suggested that he said “Yes, I can just write it off and you can take it. I’ve taken some home before for my kids and an old iPad”. Mr Maliahovas responded that he could not recall saying that. When asked if it was possible that he said those words, he responded “I’m not sure. I’ve never taken laptops home for the kids.”

[37] Mr Maliahovis was evasive in answering questions and responding to suggestions made to him. Despite being told by the learned Magistrate that his responses were not addressing the propositions being put to him he continued to respond to suggestions in a manner which left open the clear possibility that he did precisely what it was that was being suggested to him. Ultimately, his evidence was that he couldn’t recall having improperly given the appellant authority to take the laptops home but that he probably would not have done such a thing.

[38] The appellant gave evidence in her defence. Her evidence was that she was given permission by Mr Maliahovas to take the Acer laptop home from the police academy. She had asked him what was going to happen to the old Acer computers in the storeroom at the academy. He said that they were going to be disposed of and that they were only worth around $20. He told her she could take it home once it was written-off. She said that she didn’t know what he did to write it off but that he told her that it was written-off and that she could take it home. The appellant also said that she asked him if he had a Dell laptop because she preferred the bigger screen. There were none at the academy at the time so Mr Maliahovas said he would look around police headquarters in the storeroom and bring one out to her. She said that on his next visit to the academy he gave her the Dell laptop that was for disposal in the storeroom at headquarters. She took it home because he told her that it had been written-off.

[39] The appellant said that she wasn’t aware of any formal process that occurred but understood that Mr Maliahovas would deal with it from his end. She said that her understanding was that he had written them off as unrepairable and to be destroyed. She was unaware that he did not have authority to write a computer off.

[40] In relation to the Acer tablet, the appellant said that it was located by a police recruit during a clean-up of the storeroom at the police academy in 2015. She took it because she was going to try to get it to work again. She said that it was sitting in the back of her car until 5 May 2016 when she had a car accident. She had forgotten about it.

[41] The appellant was cross-examined about her understanding of what reason was provided by Mr Maliahovas for writing the laptops off. She said that she believed that he indicated that they were unrepairable but she wasn’t 100 percent sure. When challenged about the fact that she knew that he hadn’t written them off as being for her personal use she said that she assumed that he wrote them off as unrepairable.

[42] The appellant admitted that she attended a presentation that Ms Kershaw had conducted. It was suggested that the presentation outlined the procedures and protocols in relation to the disposal of laptops and other devices. She responded “something like that, yes”. When it was put to her that the presentation made it clear that getting laptops or computer equipment for your own personal benefit was not acceptable she said “Possibly. I can’t remember it, to be honest with you.”

[43] She denied that Mr Rackley expressed surprise at her having computer equipment when he visited her home.

[44] In relation to the tablet, the appellant said that she took it home and left it in her car. She agreed that at some time she took it into her house. When asked if it had been in her possession for about two years she said “possibly, I’m not sure”. She admitted to having a charger for the tablet at her home. She agreed that no-one gave her permission to take the tablet and she knew that the owner of the tablet was one of the units at the academy. She said that she intended on getting it working and giving it to Neil Sluyters but that she didn’t have time to do that. She denied she took it for her own personal use.

[45] The learned Magistrate delivered his decision on 14 August 2018. He referred to the fact that the prosecution had to prove the elements of the offence beyond reasonable doubt and had to negative beyond reasonable doubt mistake of fact pursuant to section 24 of the Criminal Code Act 1899 (Qld) and bona fide claim of right pursuant to section 22 of the Criminal Code Act 1899 (Qld). He said that the following elements were not in dispute: (1) that the appellant was an employee of the PSBA; (2) that she obtained two laptops and a tablet; and (3) that the laptops and the tablet were the property of the State of Queensland. He referred to the only element in dispute as being that the obtaining of the items was dishonest by the standards of ordinary, honest people.

[46] In relation to the tablet, the learned Magistrate referred to the appellant’s evidence that she took the tablet home but had forgotten about it until the execution of the search warrant. He said that the appellant conceded that she had no permission to take the tablet. He rejected her assertion that she did not intend to take the tablet for personal use. He said that she had the tablet in her possession for two years and also had a charger for it. He said that the only inference open on the evidence was that the tablet was the property of the State of Queensland whether it belonged to the police or the PSBA. He said that taking the tablet and keeping it for years was clearly dishonest by the standards of ordinary, honest people. He found each of the elements proved beyond reasonable doubt in relation to the tablet.

[47] In relation to the laptops, the learned Magistrate said that it was clear that none of the persons to whom the appellant reported, had the authority to dispose of a device or to give permission to an employee to take a device owned by the State for personal ownership and use. He said that Mr Davies-Crampton made that clear. He accepted the evidence of Kim Kilshaw that only an Executive Director could dispose of an asset. He further accepted that all devices, once the hard-drive was wiped were sold at auction or destroyed. He said that he accepted Mr Davies-Crampton’s evidence that he did not give permission to the appellant to take either the laptops or the tablet.

[48] The learned Magistrate said that Mr Maliahovas in his evidence-in-chief said that he had no authority to give anyone permission to take a laptop for personal use. In cross-examination, he denied the suggestion put to him that he had taken laptops home for his children’s use and denied having said so to the appellant. The appellant’s evidence, the learned Magistrate said, formed the main basis upon which the two defences were raised.

[49] The learned Magistrate said that he did not accept the appellant’s evidence that she was given permission by Mr Maliahovas. His reasons for not accepting her evidence were that; (1) Mr Maliahovas was in no position to give such permission; (2) he had no power to do so; (3) he denied having ever given anyone permission to do such a thing; and (4) as the appellant’s immediate superior and long-time employee of the State of Queensland, he may be presumed to know the procedures and protocols governing the disposal of assets. The learned Magistrate further said that Mr Maliahovas gave evidence of such knowledge. The learned Magistrate said that he did not accept that Mr Maliahovis did or said the things that the appellant testified to, which led her to believe that she had permission to take the laptops.

[50] The learned Magistrate said that it was clear from the whole of the evidence that the appellant was persistently trying to get her hands on a range of State property from iPhones to a television, laptops and iPads and made regular and repeated requests to be given such items. He said that neither the defence of mistake of fact, nor bona fide claim of right were “raised on the evidence”.

[51] The learned Magistrate said that the taking of the laptops without permission and their retention by the appellant for personal use was behaviour that the ordinary, honest person would clearly find to be dishonest. He found the appellant guilty.

[52] The appellant appeals her conviction pursuant to section 222 of the Justices Act 1886 (Qld). Such an appeal is by way of rehearing on the evidence adduced before the learned Magistrate together with any new evidence for which leave to adduce is given pursuant to section 223(2). An appeal by way of rehearing requires me to make my own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. In order to succeed, the appellant must demonstrate that the order that is the subject of the appeal is the result of some legal, factual or discretionary error.

[53] The appellant seeks leave to adduce new evidence. That evidence is contained in a statutory declaration which Neil Sluyters declared on 2 December 2018. He was sworn and gave evidence before me at the hearing of the appeal. The new evidence is that Mr Sluyters said that he had a conversation with the appellant and Mr Davies-Crampton in 2015. During that conversation, the appellant asked Mr Davies-Crampton what was happening with some computers that were going out of service. Mr Davies-Crampton said that he would write off three old PC’s so that the appellant could take one and he (Mr Sluyters) could take two. Mr Sluyters said that Mr Davies-Crampton directed Mr Maliahovas to write off a couple of laptops for the appellant.

[54] Leave to adduce new evidence will only be given if special grounds exist.[1] In Pavlovic v Commissioner of Police, the court said of such an application that the “special grounds” that are required before leave will be granted indicate that there must be good reason identified to justify a departure from the ordinary application of section 222 that such an appeal is by way of rehearing on the evidence given in the proceedings below.[2] The three matters referred to in Gallagher v The Queen by Gibbs CJ, provide a useful guide for identifying the kinds of special grounds that might justify the grant of leave.[3] The first is whether the evidence could, with reasonable diligence have been produced by the appellant at her trial. The second matter referred to by Gibbs CJ is whether the evidence is apparently credible (or at least capable of belief). The third is whether if believed it might reasonably have led the Magistrate to return a different verdict.

[55] Mr Sluyters provided a reference for the appellant, which is dated 12 August 2018. The first day of the trial took place on 27 April, 2018 and the second day took place on 18 July 2018. The matter was then adjourned until 14 August 2018 when the learned Magistrate delivered his judgement and reasons for it. Mr Slutyers wrote a reference for the appellant two days prior to the learned Magistrate’s determination of her guilt. The reference provided was type-written and addressed to “the Presiding Judge, Richland District Court”. In that reference Mr Sluyters spoke of the appellant’s good character. He referred to her employment having been terminated as a result of the conduct and the difficulty a conviction would have on her applying for jobs in the public service. Mr Sluyters did not mention the existence of a conversation between Mr Damien Davies-Crampton and the appellant and himself in that reference, nor did he raise it with the solicitors for the appellant at the time he provided the reference. When I asked him to explain why he hadn’t told the appellant’s solicitor at the time he provided the reference he could provide no explanation. In re-examination he said that he thought that the appellant was going to be found not guilty.

[56] Quite clearly the evidence could, with reasonable diligence have been produced by the appellant at her trial. She was friends with Mr Sluyters. She herself was present during the conversation. She asked him for a reference prior to her being convicted by the learned Magistrate.

[57] There are some problems with the cogency of the evidence. It is remarkable that in providing a reference for use in the court proceedings that Mr Sluyters did not reveal this information to the appellant’s solicitor. Further, the appellant did not give evidence herself that this conversation had ever occurred. Indeed her evidence was that it was Mr Maliahovas that authorised her to take the two laptop computers. She was asked in cross-examination why she didn’t ask Mr Davies-Crampton for authorisation and she responded “Well, I did but Damien was so busy with everything. The only way to get information to him was through Chris and if he couldn’t do it, Chris could. If he didn’t have the time to do it, Chris would.”

[58] If this evidence were accepted it is not likely to have led to a different verdict by the learned Magistrate as it was not the appellant’s case that Mr Davies-Crampton gave her permission to take the two laptop computers but rather that Mr Maliahovas gave her that permission via email and in telephone conversations. This evidence does not impact upon any findings made with respect to the tablet. I would not be inclined to grant leave to adduce this new evidence.

[59] The appellant’s ground of appeal is that the verdict of the learned Magistrate was unreasonable. She places particular reliance upon the emails that were in evidence that suggested that she had asked Mr Maliahovas for permission to take a computer. In particular the emails (referred to at paragraph [11],[12] ,[30] and [31]) tend to suggest that Mr Maliahovas was being asked to write off some devices so that the appellant could take them for personal use. The appellant further relies upon the evasiveness of Mr Maliahovas in answering questions under cross-examination, which went directly to the issue of whether he provided permission to the appellant to take the laptops. Further, the appellant relies upon statements made by the learned Magistrate during the course of submissions in which he acknowledged the weaknesses in the evidence of Mr Maliahovas.

[60] A review of the learned Magistrate’s responses to submissions made to him leaves me with an impression that he considered that he had to make a choice between the evidence of the appellant and the evidence of Mr Maliahovas. He said in response to a submission that Mr Maliahovas answers in cross-examination left open the possibility that he did provide permission to the appellant; that “for me to conclude that it happened, I have to accept your client’s evidence”. A little later he said “I don’t think you can go much further with the laptops. It entirely turns on my acceptance of your client’s evidence”. The prosecutor submitted to the learned Magistrate that the appellant’s version of events couldn’t stand with Mr Maliahovas’ account, which the learned Magistrate accepted. The prosecutor submitted that the learned Magistrate would prefer the evidence of Mr Maliahovas over that of the appellant.

[61] This was not an error upon which the appellant relied in her written submissions or in oral argument. Upon my review of the trial transcript, I drew this potential error to the attention of the parties and invited further submissions. The appellant now seeks leave to amend her grounds of appeal to add “The Magistrate appears to have made a choice between accepting the evidence of Mr Maliahovis and that of the appellant, rather than considering whether the prosecution had negatived the appellant’s version of events as a reasonable possibility”. I grant the appellant leave to amend her grounds of appeal.

[62] The respondent did provide further submissions however they were provided after the deadline I gave for their provision, no extension of time to file them was sought and submissions on matters beyond that which I invited have been made. I propose to ignore those submissions which I did not invite. The time for making those submissions was at the hearing of the appeal. The respondent has conceded the error that the Magistrate failed to consider to whether the prosecution had negatived the appellant’s version of events as a reasonable possibility. However, that is not the end of the matter as I am required to conduct a real review of the evidence and make my own determination of the facts in issue.

[63] The appellant gave evidence that Mr Maliahovas had given her permission to take the laptops. The evidence that no such permission was given came from Mr Maliahovas. The emails were capable of casting doubt upon the truthfulness of his testimony.

[64] There was nothing improper in the learned Magistrate considering who was to be believed. However, he ought to have made clear that his verdict was based upon a consideration of all of the evidence and a determination on the whole of the evidence including the appellant’s. It was essential in his reasons to ensure that even if he did not positively believe the evidence of the appellant that he did not find against her, if her evidence gave rise to a reasonable doubt.[4] The discussion during the course of submissions did not distinguish between satisfaction beyond reasonable doubt and choosing between two contradictory accounts. Nothing in the reasons of the learned Magistrate indicate that he distinguished between making a choice between the prosecution and the defence evidence and proof beyond reasonable doubt on the whole of the evidence. Nothing in his reasons indicate that he considered that even if he did not believe the appellant’s evidence, did her answers give rise to a reasonable doubt about the true position. The learned Magistrate was obliged to give reasons sufficient to identify the principles of law that were applied and the main factual findings upon which reliance was placed in reaching the ultimate decision.[5]

[65] The finding made by the learned Magistrate in relation to the appellant’s evidence was that he did not accept it. His reasons for that finding were based entirely upon Mr Maliahovas’ evidence that he had not given permission, that he couldn’t give permission, and that he had nothing to gain from giving her permission to improperly take a laptop. The learned Magistrate did not allude to whether he had considered whether the prosecution had negatived the appellant’s version of events as a reasonable possibility. In Murray v The Queen,[6] Gaudron J said

“And as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt.”

“The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.”

[67] Whilst the learned Magistrate may well have reached the conclusion that the appellant’s evidence was not reasonably possibly true, he did not express that in his reasons. He did not indicate that he hadn’t simply made a choice between the principal prosecution witnesses and the appellant.

[68] The failure to reveal in his reasons the proper approach to the assessment of the appellant’s evidence is an error. The mere demonstration of error however does not mean that the appellant is entitled to succeed on the appeal. If after reviewing the evidence I am satisfied of the guilt of the appellant the appeal ought to be dismissed.

[69] By giving evidence the appellant did not assume any responsibility for proving her innocence. Her evidence is simply added to the evidence of the prosecution witnesses. The proper approach is for me to bear in mind that the prosecution case depends on me accepting the evidence of Mr Maliahovas as true and accurate beyond reasonable doubt despite the sworn evidence of the appellant. The appellant does not have to satisfy me that she is telling the truth before she is entitled to be found not guilty. The emails admitted in evidence do, in my view, cast reasonable doubt upon the testimony of Mr Maliahovas at least in so far as the laptops are concerned. Mr Maliahovas’ evasiveness in responding to suggestions that he acted improperly in respect of the laptops adds to that sense of doubt.

[70] In relation to the laptop computers, I am not satisfied beyond reasonable doubt that the appellant dishonestly obtained them.

[71] In relation to the tablet, the verdict of the learned Magistrate did not depend upon a finding in relation to Mr Maliahovas’ credit. The error, which affected the learned Magistrate’s finding in relation to the laptops, does not affect the finding in relation to the tablet.

[72] The taking of devices for personal use was not permitted. That was the unchallenged evidence of Ms Kilshaw. The appellant’s account that she intended to repair the tablet and give it to Mr Sluyters does lack credibility when considered against the length of time that she had the tablet for that purpose and had not done any repairs it. She testified that she took the tablet in 2015. Her evidence was that she had forgotten about the tablet and had left it in her car until her car accident in May 2016. She did not however provide any explanation for what she had done with the tablet between May 2016 and October 2017 when it was located in her house along with a charger. Clearly enough she had moved the tablet into her house after May 2016 however she provided no explanation for why she did that. She gave no evidence that she had commenced repairing the tablet at all. I accept the evidence of Mr Rackley that he saw government owned assets at the home of the appellant and had said to her “I hope that you’ve obtained them through the correct channels and that you had permission to take them”. Given the appellants possession of the tablet since 2015 that comment ought to have brought home to her the need to deal with such assets in accordance with proper procedure. Further is the body of evidence which demonstrates that the appellant was attempting to obtain devices for her own personal use. The training provided by Ms Kilshaw established that the appellant was aware of the policies of the PSBA and the comment by Mr Rackley as indicated was a reminder of such policies. I do not consider that the appellant’s evidence is reasonably possibly true in regards to the tablet. I am satisfied beyond reasonable doubt, by the standards of ordinary, honest people, that she dishonestly obtained the tablet.

[73] I would allow the appeal against conviction to the extent of setting aide so much of the verdict and judgement as refers to the appellant being found guilty of dishonestly obtaining two laptop computers.

[74] This finding necessitates the appellant being resentenced as it significantly alters her criminality. The appellant was fined $2000 for the offence of fraud. A conviction was recorded. I would be inclined to allow the appeal against sentence in any event as in my view the learned Magistrate fettered his discretion by stating that there was a principle that a conviction should be recorded in cases where an employee steals from their employer. It was within his discretion to record a conviction. However, there is no principle contained within the Penalties and Sentences Act 1992 (Qld) or in any appellate authority that dictates that a conviction should be recorded for an offence which involves stealing from one’s employer. The exercise of the discretion to record or not record a conviction requires the court to have regard to the nature of the offence, the offender’s character and age and the impact that the recording of a conviction will have on the offender’s economic or social wellbeing or chances of finding employment.[7]

[75] The appellant had worked for the public service for in excess of 20 years. She lost her employment. She has no other previous convictions. The taking of the tablet was not premeditated but seems to have arisen opportunistically when the tablet was located during the course of a clean-up at the academy. The appellant is otherwise of good character. The recording of a conviction is likely to affect her chances of finding employment.

[76] In R v Brown; Ex Parte Attorney-General, Macrossan CJ explained the correct approach to the exercise of the discretion conferred by s 12. He said:

“Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court. The opening words of s 12(2) of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances. In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight”.^[8]

[77] In all of the circumstances, I fine the appellant $500. A conviction is not recorded.

Queensland District Court Decisions

Godfrey v Queensland Police Service [2019] QDC 66 (3 May 2019)