JONES v R [2022] NZHC 355

JONES v R [2022] NZHC 355 [3 March 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2021-419-000077[2022] NZHC 355BETWEEN CHARLOTTE JANE JONESAppellantAND THE QUEENRespondentHearing: 2 February 2022Appearances: S Taylor for the AppellantD Young for the CrownJudgment: 3 March 2022JUDGMENT OF WALKER JThis judgment was delivered by me on 03 March 2022 at 3 pmRegistrar/Deputy RegistrarIntroduction[1] Charlotte Jones appeals against her conviction on two representative chargesof theft by a person in a special relationship1 following a judge-alone trial in theDistrict Court at Hamilton.2 On 26 November 2021, Judge Marshall sentenced MsJones to five months' home detention on both charges.3[2] Ms Jones argues that the trial Judge erred in his assessment of the evidence tosuch an extent that a miscarriage of justice has occurred.4 The grounds relied on arethat the Judge:(a) placed undue weight on assumptions made by the primary Crownwitnesses, which were inconsistent with corroborative documentaryevidence; and(b) relied on non-expert opinion evidence in respect of accountinginformation and practices.[3] Consequently, the Judge arrived at a conclusion which was not supported bythe evidence.Background[4] Ms Jones was employed as office manager of Pekerau Primary School in TeAwamutu. She was also the secretary of the Board of Trustees for the school.[5] Various amounts of cash went missing at the school. The representativecharges reflect the two relevant timeframes — the first being 1 May 2017 to 31December 2017 and the second being 1 January 2018 to 31 December 2018.1 Crimes Act 1961, s 220(1)(b).2 R v Jones [2021] NZDC 16363.3 R v Jones [2021] NZDC 23338 at [11].4 Criminal Procedure Act 2011, s 232(2)(b).[6] Cash payments were handled exclusively by Ms Jones and one otheradministrative assistant during each period. Primary responsibility for finances at theschool lay with Ms Jones.[7] These payments were processed at a single till in the school's office. Theschool had one bank account and the system of accounting was rudimentary. After MsJones left her employment, discrepancies were identified in that a large number of cashtransactions were unaccounted for and were not banked into the school's account.The respective cases[8] In summary, the Crown argued that Ms Jones' responsibility for the school'sfinances included receiving payments and depositing them into the school's bankaccount, and monitoring the bank account. The Crown called four school employeesas witnesses, as well as the officer in charge. There was also a memorandum of agreedfacts.[9] Ms Jones argued that she was not responsible for banking the cash received inthe office because that was the role of the administrative assistants. The school lackedclear financial procedures so she could not be said to have acted in contravention ofher employment and the cash was, in any event, left in an unsecure safe.[10] Ms Jones accepted that money was missing and that the theft must haveoccurred almost on a weekly basis during her time at the school. She also acceptedthat it was unlikely both Ms Monkley and Ms Ashby had stolen money. However, thekey to the safe was in an easily accessible drawer, in an office used by members of theParent Teacher Association, volunteers, and a woman who made coffee for staff,amongst others.[11] She also accepted it was her responsibility to check the bank account balances,and that she had created a system to do this but claimed not to have noticed that almostno money had been deposited.District Court Decision[12] After describing the nature of the charges, Judge Marshall referred to theelements which the Crown had to prove beyond reasonable doubt as set out by theCourt of Appeal in Tallentire v R: 5(a) Did the defendant have possession or control over the property?(b) Was the property in the control of the defendant in circumstances thatrequired her to deal with the property in accordance with therequirements of any other person;(c) Did the defendant know of these circumstances?(d) Did the defendant intentionally deal with the property otherwise thanin accordance with those requirements?[13] He then traversed the evidence, beginning with the evidence of Tania Bagley.Ms Bagley had been a team leader of the small team of teachers at the school throughmuch of the period in question. She was also deputy principal from June 2018. Sheconsidered that Ms Jones was responsible for paying invoices, communicatinginformation from accountants as to budgets and spending and "responsible for allthings financial" within the school.6 Ms Bagley was delegated the responsibility forfinancial matters after Ms Jones left the school. She found that there were pieces ofcash and money in all sorts of places in the school.[14] It was Ms Bagley who found discrepancies in the accounts from 2018. Afterreviewing till sheets, spread sheets and bank statements, she identified there were nocash deposits for the month of October. This concerned Ms Bagley who then reviewedthe records through 2018. She found there were only three cash deposits, two of whichrelated to particular fundraisers. Ms Bagley produced a table piecing together thediscrepancies which was produced in a memorandum of agreed facts.5 Tallentire v R [2012] NZCA 610, [2013] 1 NZLR 548.6 Above n 1, at [7].[15] The Judge referred to the cross examination of Ms Bagley about thedefendant's job description. She agreed that banking school funds did not appear inthe job description produced in evidence, but she was nonetheless confident that MsJones banked money as she gave her money to take to the bank in her role as teamleader. 7 She also stated in her evidence that it was the school's expectation that moneywas banked weekly or fortnightly and in a timelier fashion if there was a fund-raisingevent.[16] Virginia Mitchell, another teacher at the school, prepared the accounts fromMay 2017 to December 2017. She prepared a reconciliation and also concluded thatthere were amounts of cash received which were not accounted for in any way. Shewas not able to explain how the money had gone missing.[17] Catherine Monkley was the office administrator who assisted Ms Jones fromJune 2017 for approximately 12 months. Her evidence was that her role was tomanage school absentees, new entrants or new students. She also manned thereception, answered phones and carried out the day to day mechanics of the officework. She disclaimed any responsibility for finances but said that all payments to theoffice were through the office till and transacted by either her or Ms Jones. At the endof the day, cash would be placed in the safe and she believed that Ms Jones would thenorganise the banking. For the first part of her employment, she only worked up until11.30 am. Her hours were later extended to 3 pm and she would then ring the till off,put the receipts onto a piece of A4 paper and put the cash in the safe.[18] Leanne Ashby was a teacher aid who took over the office administration fromMs Monkley. Her evidence was that she would leave at 3.30 pm and leave the till asit was. Ms Jones would close it and leave a float for her to open it up in the morning.She indicated that she had little to do with the financial side of things and was unawarethere was a safe in the office until after Ms Jones left. She considered that Ms Joneswas responsible for the banking, but on cross-examination agreed that she could notbe sure.7 At [16].[19] Ms Jones elected to give evidence. She described a lack of clear processes andprocedure when she started her employment. She relied on the job description whichdetailed the number of financial responsibilities she would hold but which did notspecifically refer to banking. She disavowed any responsibility for banking or for themissing cash. Her evidence was that it was her role to put funds in the safe, leave afloat in the till and check the bank balances, but not bank the money. She said that shedid the banking three times in her whole tenure at the school. While she accepted thatshe regularly checked account balances, she had never noticed in the whole of 2018that virtually no cash had been banked.[20] The Judge found that Ms Jones was responsible for the office administrator. Itwas either Ms Jones or the office administrator who received cash in the office forpurchasers or processed ETPOS payments. A purchase code or designation would beselected along with the method of payment. A receipt would be produced for thecustomer and for the till. Any cash would be placed in the cash register with thereceipt. At the end of the day, a daily summary of receipts was produced on an A4piece of paper to which the receipts were stapled. A weekly spreadsheet would thenbe generated summarising the monies in the till and method of payment. Cash wouldbe removed and put into the safe for banking.[21] The Judge identified that the principal area of dispute was who was responsiblefor banking. He found that the reality was that Ms Jones was responsible for thefinancial running of the school, and while it may not have been explicitly spelt out thatshe was responsible for banking, it would certainly be inferred.8 He said:[39] She did weekly reconciliations. She prepared accounts for audit.She received bank statements via the system she set up and that would havebeen regularly. She knew school fundraising projects produce significantsums of money at times. She knew cash was received in the office. Sheprepared accounts for audit. She in fact says that she did three bankings whichwould be close to 50 per cent of the banking over the timeframe that she wasthe office manager. This is not a large scale enterprise with numerous accountsover a number of departments. Ms Jones would have been aware from thebank statements little or no cash was being banked.[40] I reject the evidence of Ms Jones as implausible that large amounts ofcash just went missing without her having any inkling of this from theaccounts and finances that she was responsible for. It would have meant in8 At [39].any event that Ms Monkley and then Ms Ashby had systematically stolen themoney or rather, another person or persons from staff or the PTA had helpedthemselves to cash that was left lying around or unsecured or used an unsecurekey to help themselves out of the safe or elsewhere with no one realising that.They would have had to [have] done that on a very regular, almost daily basisas cash amounts built up. Once again, I find that implausible.[22] The Judge found the evidence of Ms Monkley and Ms Ashby to be consistentand logical and that both witnesses gave credible and plausible evidence.9 Hepreferred their evidence over the evidence of Ms Jones which he rejected. There waslittle opportunity for Ms Monkley up until September or October 2017 to have muchat all to do with the cash. Ms Ashby had little involvement or knowledge of financialmatters.[23] Having canvassed the evidence, the Judge then considered the elements of thecharges. He found that Ms Jones had possession or control over the cash, that sheplaced cash in the safe or handled it most of the time, if not all of the time untilSeptember or October 2017, and after that, she was responsible for banking the moneyin the safe left by Ms Monkley.10[24] He found that the property was in the control of Ms Jones in circumstances thatrequired her to deal with that property in accordance with the requirements of anotherperson. Those requirements were to account back to the school and the board oftrustees for the money, and to bank the money.11[25] As Ms Jones was the financial person and the sole person in control of finances,she must have been aware of those circumstances.12[26] As to the final element, the Judge found that Ms Jones took the cash paymentsmade to the office for her own use, thus dealing with the cash otherwise than inaccordance with the requirements.139 At [41].10 At [42].11 At [43].12 At [44].13 At [45].[27] Having found all those elements proved beyond reasonable doubt, the Judgefound Ms Jones guilty of the first charge.[28] The Judge then considered the elements of charge two. He said:[46] when I consider those same elements, I find with the overlappingperiod between Mrs Monkley and Ms Ashby, that Ms Jones did havepossession or control over the cash and the safe or once the day ended, that itwas in her control and circumstances that she was required to deal with thecash in accordance with the trustees and school's requirements to bank thoseor to certainly hold them on account of the school. She was aware of thatbeyond reasonable doubt and that she intentionally dealt with the proceeds,namely the cash, otherwise in accordance with those requirements by takingthe money. I find that proved beyond reasonable doubt.Approach on appeal[29] This appeal is under s 232(2)(b) of the Criminal Procedure Act 2011. Theappeal must be allowed if the judge has erred in his or her assessment of the evidenceto such an extent that a miscarriage of justice has occurred. A miscarriage of justicemeans:14any error, irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial was affected; orb) has resulted in an unfair trial or a trial that was a nullity.[30] An appeal from a judge-alone trial is a general appeal, governed by theprinciples in Austin, Nichols & Co Inc v Stichting Lodestar:15If an appellate court comes to a different view on the evidence, the trial judgenecessarily will have erred and the appeal must be allowed. But, to the extentthat Mr Jones was suggesting that the role of an appellate court is to considerthe issues de novo as if there had been no hearing at first instance, then we donot agree. Since it is an appeal, it is for the appellant to show that an error hasbeen made. Further, in assessing whether there has been an error, an appellatecourt must take into account any advantages a trial judge may have had.Because of this, where the challenge is to credibility findings based oncontested oral evidence, an appellate court will exercise "'customary'caution"14 Criminal Procedure Act, s 232(4).15 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]; and Austin, Nichols & Co Inc vStichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.Appellant's submissions[31] Mr Taylor, for Ms Jones, acknowledges that Ms Jones was in control of themoney and was required to deal with it in accordance with the requirements of theschool. He identifies the key issue as being whether Ms Jones was responsible forbanking the money because the failure to bank the missing money constitutes the finalelement of the offence, that is, intentionally dealing with the property otherwise thanin accordance with requirements. He submits that if the Crown has not proved MsJones was required to bank the money, she cannot be found guilty of failing to do so.[32] Mr Taylor submits that on this key element, the Judge relied on assumptionsover irrefutable evidence. Both Ms Monkley and Ms Ashby thought Ms Jones wasresponsible for banking, but on cross-examination conceded they were not sure. Allwitnesses agreed the school was disorganised. There was confusion about staff rolesand procedures. As Mr Taylor put it:Both Ms Ashby and Ms Monkley considered that the banking was theresponsibility of Ms Jones, citing her oversight and control over the finances.However, neither could categorically say that Ms Jones was supposed to dothe banking. This too was the position taken by Ms Bagley and Ms Mitchell.Rather, all assumed that it was Ms Jones' responsibility.[33] By contrast, Mr Taylor submits that Ms Jones' evidence about her role wasconsistent with her formal job description. The job description was not challenged bythe Crown. There was no basis for the Judge to dismiss it.[34] Mr Taylor criticised the failure of the Crown to call an expert witness to giveevidence on accounting information and practices and the requirements of differentroles within an organisation like a school, instead relying on opinion of the factualwitnesses. He also emphasised that any number of people could have accessed thesafe in the office given the key was kept in the office so that the Judge erred when hefound beyond reasonable doubt that Ms Jones had taken the money.Crown submissions[35] The Crown's position in summary is that:(a) The Judge did not merely rely on Ms Monkley and Ms Ashby'sassumptions. Both gave consistent evidence that Ms Jones hadinstructed them as to their role and that they had limited financialresponsibility. The Judge found them to be credible witnesses.(b) The Judge did give weight to the job description but inferred from itthat Ms Jones was responsible for banking, as she was clearly in chargeof the school's finances.(c) The lack of expert evidence was irrelevant. Ms Jones accepted moneywas not banked but denied having stolen it, and the precise amountmissing was not in issue.Discussion[36] In my assessment, the assumptions of Ms Monkley and Ms Ashton were notthe principal reason for the Judge's conclusion on the question of responsibility forbanking the money. But they did support the inference he drew from the written jobdescription. That inference was not only open to him but a correct conclusion basedon the actual job description. While it may at first blush seem odd that the detailedjob description made no mention of banking, it is the type of incidental activity whichmust logically be encompassed within responsibility for the school's finances. MsJones gathered the money received by the school, placed it in the safe, and checkedthe bank account. Ms Jones must have been aware of the limited roles of the officeassistants. Even if she considered them responsible for banking, she would havenoticed they were not in fact undertaking the task when she checked the bank account.[37] Mr Taylor's submission that it would be common sense to have a separateemployee responsible for banking may well be correct in the abstract, but this does notalign with the evidence of the school's disorganised procedures. Thus, the evidenceof an expert was neither necessary nor likely to be of assistance to the Judge.[38] I further agree that is implausible that both Ms Monkley and Ms Ashby hadmisappropriated cash over different periods, especially while Ms Monkley workedpart-time. It is also implausible to imagine another person was regularly able to enterthe office and remove money from the safe over the entire period of Ms Jones'employment. The Judge's credibility finding after hearing and seeing the witnessesadds heft to his analysis.[39] I find no error in the Judge's assessment of the evidence.Result[40] The appeal against conviction is dismissed.............................................................Walker J