Priest, Alison Christine v Tasmania, State of [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Crawford CJ,Porter J,Wood J
• Judgment Date: 31 May 2012
• Docket Number: 1010/2011
• Date: 31 May 2012

[2012] TASCCA 6

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Porter and Wood JJ

1010/2011

Priest, Alison Christine

and

Tasmania, State of

Simic v R (1980) 144 CLR 319 , followed.

Aust Dig Criminal Law [3470]

Simic v R (1980) 144 CLR 319 , followed.

Aust Dig Criminal Law [3485]

Criminal Law — Appeal and new trial — Miscarriage of justice — Particular circumstances not amounting to miscarriage — Misdirection or non-direction — Misstatement of evidence in summing up — Whether a reasonable possibility that the appellant would not have been found guilty if the misstatement had not been made.

Criminal Law — Appeal and new trial — Particular grounds of appeal — Misdirection and non-direction — Review of evidence — Misstatement as to evidence in summing up — Whether a reasonable possibility that the appellant would not have been found guilty if the misstatement had not been made — Whether a miscarriage of justice.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ Porter J Wood J

1 The appellant was tried before Tennent J and a jury. She was found guilty of stealing $40,000 in cash from Maria Trump. She appealed against her conviction.

2 The State's case was that Mrs Trump entrusted the accused with a small safe and some documents, including traveller's cheques and cash, to be kept in it. When the safe was obtained by police from the accused's home and opened on 18 October 2006, $40,000 in cash, that Mrs Trump said had been entrusted to her, was missing, presumed stolen. The accused's case was that although Mrs Trump had entrusted her with the safe and documents, including traveller's cheques, she had not been entrusted with the $40,000 and had stolen none of it.

3 There are two grounds of appeal. Neither should succeed.

4 The first asserts there was a miscarriage of justice because of a misstatement of one matter of evidence by the trial judge in her summing up.

5 The effect of Mrs Trump's evidence about entrusting cash to the appellant was as follows:

1. 1 On 4 October 2005, she withdrew $5000 cash from the Commonwealth Bank at Exeter. She placed the cash in a sealed yellow A5 envelope and a few days later gave it to the appellant for safekeeping. Mrs Trump described an A5 envelope as being half the size of an A4 envelope. We understand the reference to an A4 envelope to be one large enough to contain an unfolded sheet of A4 paper, which has dimensions of 297 x 210 millimetres. It was after that, on 14 October 2005, the safe was purchased and taken by the appellant to her home.

2. 2 On 14 October 2005, Mrs Trump again withdrew $5000 in cash from the Commonwealth Bank at Exeter. The teller placed the cash in a white letter sized envelope which had the bank's logo on it. Tendered in evidence was a photocopy of what Mrs Trump said was a similar envelope with the bank's logo.

3. 3 On 19 October 2005, Mrs Trump withdrew another $5000 in cash from the Commonwealth Bank in Launceston. The teller put it in an identical envelope to the one described in 2 above. Mrs Trump sealed it and a few days later gave it to the appellant, along with the cash in the envelope referred to in 2 above, to put in the safe.

4. 4 On 16 February 2006, Mrs Trump withdrew $10,000 cash in $100 bills from the Commonwealth Bank at Exeter. The teller put the cash in a white DL sized envelope which Mrs Trump sealed and kept. We understand a DL envelope to be designed to fit one third of an A4 sheet of paper.

5. 5 On 7 March 2006, Mrs Trump withdrew $5000 cash from the Commonwealth Bank at Exeter, which the teller placed in an envelope that was similar to the ones described in 2 and 3 above.In about mid-March, she gave the envelope, together with the envelope referred to in 4 above, to the appellant to put in the safe.

6. 6 On 4 April 2006, Mrs Trump withdraw $5000 cash from the Commonwealth Bank in Launceston. Once again it was in an envelope which she sealed and gave to the appellant.

7. 7 On 26 May 2006, Mrs Trump withdrew a further $5000, this time from the ANZ Bank in Launceston. The teller placed it in an envelope on which was the bank's logo. It was left unsealed. The appellant had accompanied her to Launceston and on the way home, Mrs Trump gave her the envelope containing the cash to put in the safe. At that time she commented that it was the last, she had $40,000 and it was all that she needed. Tendered in evidence was a photocopy of a white ANZ Bank envelope, bearing its logo, which Mrs Trump said was similar to the one in which the $5000 was contained.

6 The evidence of what was found by the police when the safe was opened included photographs of the contents. No cash was found. A yellow envelope was inside the safe, but it appears from a photograph to have been a size equivalent to an A4 sheet of paper and not A5. No white envelope matching Mrs Trump's evidence of the other envelopes was found in the safe. There were envelopes in it but they did not match her descriptions. For example, there were a number which had printing on the outside indicating that the contents were Commonwealth Bank traveller's cheques.

7 In his closing address to the jury, counsel for the State correctly referred to there being evidence that when the safe was opened documents in it were consistent with what Mrs Trump had said, and he specifically referred to traveller's cheques, but made no mention of envelopes being found in it. In her closing address, counsel for the appellant made no mention of whether or not envelopes were found in the safe. That they were or were not found in the safe did not form part of the case of either party.

8 The summing up followed the usual form, with directions of law first. Her Honour then referred to some of the evidence and included in what she said was the following:

‘You have the evidence of the documents and the traveller's cheques which Mrs Trump did say she'd given to the accused for safekeeping, were found in the safe, as were envelopes which might be consistent with those Mrs Trump says she used to put money in when she gave money to the accused.’

9 Her Honour's statement to the jury was not that there were envelopes found in the safe thatwere consistent with those Mrs Trump said contained cash when she gave them to the appellant. The statement was that envelopes found in the safe might be consistent with them. Nevertheless, it was an incorrect reference to the evidence. It was not part of the State's case that envelopes similar to those described...