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Court of Appeal of New Zealand |
Last Updated: 11 June 2023
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA45/01
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THE QUEEN
V
SALLY MENGTUNG BAYLIS
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Hearing:
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16 July 2001
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Coram:
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Gault J Panckhurst J
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Potter J
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Appearances:
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T Fournier for appellant
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MJ Thomas for Crown
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Judgment:
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23 July 2001
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JUDGMENT OF THE COURT DELIVERED BY POTTER J
[1] The appellant Ms Baylis appeals against conviction following trial by jury on 19 charges of theft as a servant from her employer Naturally New Zealand Souvenirs (Christchurch) Limited (“the company”). Not guilty verdicts were entered on 3 counts. Ms Baylis conducted her own defence at the trial. She was subsequently sentenced to 6 months periodic detention and ordered to pay reparation of $2,100 being the approximate loss sustained by the company in relation to the 19 charges on which convictions were entered. The sentence is not appealed.
Factual background
[2] The appellant was employed by the company as a sales assistant in a souvenir shop. The charges related to a period of 9 months between November 1997 and August 1998. The Crown case was that on each of the occasions specified in the charges Ms Baylis sold items from the souvenir shop; she then voided the sale on the cash register or alternatively deleted an entry from the sale recorded; she then promptly processed a sale for a minor item such as a chocolate bar or ball point pens; she then stole the difference between the value of the voided or deleted transaction, and the lesser value of the sale subsequently processed. After the company’s suspicions were aroused an examination of their stock records showed that in relevant respects these records did not correspond with sales records.
Grounds of Appeal
Indictment contained the word “approximately”
[3] Mr Fournier’s first submission on behalf of the appellant was that the trial proceeded with the indictment containing the word “approximately” despite Judge Erber’s pre-trial order of 5 July 2000 that –
Every count shall omit the word “approximately” appearing before the numeration of the sum allegedly stolen. The Crown case is that the losses can be precisely identified and should therefore be precisely pleaded.
[4] The counts in the indictment were framed in essentially the same way. Typical is count 13 which reads –
The said Crown Solicitor further charges that Sally Mengtung Baylis also known as Mengtung Ye on 26 July 1998 at Christchurch being a servant employed by Naturally New Zealand Souvenirs (Christchurch) Limited stole approximately $33.40 the property of her employer Naturally New Zealand Souvenirs (Christchurch) Limited (transaction number 363986).
[5] In respect of count 13, $33.40 was the value of the item sold in the first voided transaction and $1 was the value of the second transaction. The Crown case was that the theft was the difference between the two transactions, $32.40.
[6] Judge Erber ruled that since the Crown case was that the losses could be precisely identified in this manner, they should be precisely pleaded. However, the indictment was not amended. The Crown explained this as an oversight. It was in our view an oversight which is inexcusable. Nevertheless we are satisfied that there was no prejudice to the appellant from the Crown’s failure to amend the indictment as required by the Judge’s ruling. The basis of the Crown case was clearly put to the jury and since in relation to most counts the value of the second transaction was minimal, the amount of the theft charged approximated the value of the transaction voided or deleted. We do not consider the jury would have been confused or influenced by the Crown’s failure to amend the indictment.
[7] However, in respect of two counts, 8 and 19, where the second transaction was for a greater than minimal value the lack of specificity in the framing of the charges is a relevant factor in the determination we have reached to allow the appeal in respect of those charges (refer paragraph [20]). Except to that extent, the first ground of appeal fails.
Insufficiency of evidence
[8] This was the principal ground of appeal pursued in submissions before the Court. The appellant contended that the evidence adduced by the Crown was inadequate to support the convictions in that –
[9] The Crown case depended on circumstantial evidence. The Crown relied upon the inferences raised by the general modus operandi employed by the appellant as established by the evidence, to prove the alleged thefts.
[10] In his summing up to the jury the trial Judge explained the modus operandi in this way (p.24) –
In other words, in respect of all 22 counts, the Crown says that you can be satisfied, on the basis of the transaction records, the stock-take records and the other documentary material, when all taken together, that the charges have been proved, with the additional component of the video surveillance evidence in respect of the charges relating to 23 August and 31 August 1998.
[11] The transaction records comprised point of sale records which recorded the first transaction, that it was voided or an entry deleted, and very promptly after, a second transaction usually for a minimal amount.
The stock variance reports recorded stock-takes made at dates following the relevant transactions, showing stock calculated to be on hand, stock actually on hand and any variance between the two.
There were also in relation to some dates, exception reports which identified voided transactions made by each of the sales persons.
In respect of counts 1-4 which charged thefts on 23 and 31 August 1998, there was video surveillance footage of the transacting of the sales by the appellant which were seen by the jury.
In addition, the jury heard evidence from Mrs Dowling and Mrs Gordon, senior employees of the company at the relevant period, who gave evidence in explanation of the various reports and systems operated in relation to the sales processes of the company.
[12] The Crown relied on an accumulation of these items of evidence to prove each of the counts in the indictment, but not all of the items of evidence were available in respect of every count. The jury were required to consider the available items of evidence applicable to each count in order to reach a decision whether there was proof beyond reasonable doubt of the theft charged in that count.
[13] It would have been most helpful to this Court had the evidence relied on by the Crown for the individual counts been presented in scheduled or tabulated form. Indeed, it would no doubt have been helpful also to the jury had the Crown presented in a coherent, summarised form what the trial Judge described in his summing up as -
A vast volume of documentary material ... put before us by the Crown ...
[14] In order to analyse and assess the evidence adduced by the Crown in support of each of the charges this Court was obliged to prepare its own schedule, which is annexed (“the schedule”). It summarises the evidence in relation to each of the counts in the indictment including counts 16, 17 and 18 where the jury’s verdicts were not guilty.
[15] Column A of the schedule refers to the number of the count in the indictment.
Column B shows the date of the relevant transactions. By reference to column G it can be ascertained how soon after the date of the relevant transactions a stock-take was completed, which is relevant to the weight to be attached to the evidence of any stock variance shown in column G.
Column C details the first transaction the value of which matches the amount of the theft charged “approximately” in the corresponding count in the indictment.
Column D details the second or “bogus” transaction.
Column E shows the period between the two transactions which with few exceptions is very brief.
Column F shows by reference to the identifier number used by sales persons, who entered transactions 1 and 2 through the cash register. Ms Baylis held identifier number 20 in 1998 but previously in 1997 held identifier number 52. It is apparent from Column F that except in relation to count 1 where the information was not available, Ms Baylis was the person who recorded transaction 1 in each case. However, transaction 2 was sometimes allocated her identifier number and sometimes the identifier number of another sales person, e.g. count 5 identifies sales
person number 33 (Mitzi) and count 6 identifies sales person number 32 (Tamiko), as the person who effected transaction 2 in those cases.
Column G shows the date of the stock-take and its result. The results in Column G indicate considerable consistency between the items sold in transaction 1 and items missing from stock, notwithstanding that those transactions were purportedly voided. The results also indicate stock on hand of pens (refer count 5) and postcards (refer count 13) which indicate a contrary situation in relation to items purportedly sold pursuant to transactions 2.
Finally, column H shows that video surveillance evidence was available in respect of counts 1-4, but the lack of such evidence in relation to the remaining counts.
[16] The Crown submitted that a number of inferences could be drawn from the available evidence, which supported the Crown. For example that because of the short time between transactions 1 and 2 where a different sales person identifier appeared for transaction 2, the appellant had used the identifier number of another staff member to avoid detection. Supporting evidence on that aspect was that when a transaction was voided the transaction number for transaction 1 continued through and was repeated in transaction 2 on the point of sale reports.
[17] In respect of the stock variance results, the jury heard evidence from Mrs Dowling (at p.100 notes of evidence), that she went through the stock-take records and established the variances in each case. She explained the difference between the PLU numbers for stock items which appear on the point of sale records, and the stock supplier numbers entered on the stock-take records, and confirmed consistency in respect of the items where stock variances were established. While Mr Founier for the appellant made submissions concerning a number of discrepancies in the stock-take records and the stock variances, the evidence of Mrs Dowling was not contested nor were the claimed discrepancies explored in cross-examination. Possibly the appellant did not challenge Mrs Dowling in relation to the claimed discrepancies because her defence at trial was to attribute the company’s losses either to thefts by someone else or computer glitches. For whatever reason, Mrs Dowling’s evidence as to the stock-takes, stock reports and stock variances was unchallenged. Accordingly the jury were entitled to rely, and no doubt did rely, on the evidence of Mrs Dowling that the records and entries had been checked and followed through to establish the variances in each case.
[18] Ultimately these matters of inference were for the jury as was the ultimate crucial inference the Crown invited the jury to make, that the appellant’s pattern of conduct, her modus operandi, established by the evidence led to the inference that she stole from the company the cash being the difference between the values entered in transactions 1 and 2.
[19] The issue for this Court on appeal is whether there was sufficient evidence upon which the jury could reasonably make the inferences necessary to support the guilty verdicts.
[20] An analysis of the relevant evidence as summarised in the schedule, leads us to conclude that in respect of counts 5, 6, 7, 8 and 19 there was insufficient evidence to support guilty verdicts.
In respect of counts 5, 6 and 7 there was no evidence of a variance in stock to support the sales made in transaction 1. There was not available in respect of these counts, as there was for counts 1-4, confirmation from video footage that these sales took place. While surpluses of stock purportedly sold in the second transaction give rise to grave suspicion, lack of proof that the relevant stock was missing results in inadequacy of proof beyond reasonable doubt. Evidence from the major event log adduced in relation to counts 6 and 7, that of 13 voids on 8 August 1998 the appellant entered 7 of them, while suspicious, does not amount to proof.
Count 8 charged theft of $202.50. On the Crown case as presented to the jury, the theft was not approximately $202.05, but a considerably lesser sum because the value of transaction 2 was entered as $125. Similarly in respect of count 19, on the basis of the Crown case the theft was not as charged approximately $198, but reduced pursuant to transaction 2, by $61.27. Further, in respect of count 19 the stock-take relied on by the Crown to show a stock variance in respect of one sweater and one cardigan, the items allegedly sold in transaction 1, was made more than 6 months after the sale, which may well have been a factor in the not guilty verdicts on counts 16, 17 and 18 in view of the Judge’s ruling referred to in para [27].
[21] We therefore conclude that the accumulation of evidence in relation to these counts, 5, 6, 7, 8 and 19, is insufficient to support the convictions entered and to this extent the appeal will be allowed.
Misdirection by trial Judge
[22] The jury sought an explanation of entries “L-REQ” and “L-APL”. The Judge directed the jury that –
It would be fair to assume the fact that those notations have not been explained during the trial might mean that they are of no great significance in the context of issues which you have been asked to consider.
[23] For the appellant Mr Fournier submitted that the relevance of those notations and how they fitted was unknown and that they were not explained may have raised some doubt in the jury’s mind about the transactions.
[24] The point is without merit. In the absence of evidence which explained the entries adduced either in evidence-in-chief or cross-examination, it was perfectly appropriate for the Judge to direct the jury that they should not attach significance to these entries in the context of the issues they were required to consider.
Non-receipt by appellant of computer records
[25] This submission related to complaints by the appellant that she had not received all available computer records and that records not made available may have assisted her in her defence. This was not an issue of non-disclosure by the Crown. The records apparently related to an employment dispute. In any event, if the appellant had regarded the records as crucial or relevant to her defence the matter could and should have been addressed in cross-examination.
Inconsistency of Not Guilty Verdicts
[26] Mr Fournier submitted that the verdicts of not guilty in respect of counts 16, 17 and 18 were inconsistent with the guilty verdicts on the other 19 counts. He properly accepted on the authority of R v Hayes (CA.63/00, 25 May 2000) that the appellant carried the onus of establishing the alleged inconsistency and that the issue was a difficult one to argue on behalf of the appellant.
[27] In this case the jury were required to consider an accumulation of evidence in respect of each individual count. In relation to counts 16, 17 and 18 the jury no
doubt had in mind the warning issued by the trial Judge in his summing up (p.18) that in the evidence pertaining to counts 17-19 there was a lapse of time between the late 1997 transactions and the stock-take records as at the end of the financial year in June 1998 which might affect the weight they should give to the apparent link between the stock-take discrepancy and the sale some 6 months previously. He alerted the jury to the possibility that the discrepancies were coincidental, but confirmed that these were issues for the jury to decide. He had also previously drawn to the attention of the jury some lack of clarity in the stock-take variation report in relation to count 11. Further, in relation to counts 16 and 18 the sales person identifier in respect of transaction 2 was not that of the appellant. In relation to counts 17 and 18 transaction 2 was entered simply as “cash” rather than as items of nominal value, and accordingly departed from the pattern of conduct on which the Crown relied; and there was a considerable time difference between transactions 1 and 2.
[28] This was not a case where on the basis of essentially the same evidence the jury delivered verdicts on some counts which were inconsistent with verdicts on other counts. The evidence varied from count to count. The jury were required to consider the accumulation or totality of evidence adduced in relation to each count. There were logical and explicable reasons for the not guilty verdicts the jury reached on counts 16, 17 and 18.
[29] Result
Sentence
[30] Although there was no appeal against sentence, because the appeal against conviction has been allowed to the extent stated in para [29], the sentence is reduced to 4 months periodic detention, and the reparation ordered to be paid is reduced to
$1,824.Solicitors: T. Fournier, Christchurch
Crown Law Office, Wellington
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