New South Wales Court of Criminal Appeal CITATION: Regina v Centraco [2005] NSWCCA 11 HEARING DATE(S): 12 November 2004 JUDGMENT DATE: 16 February 2005 JUDGMENT OF: Hidden J at 1; Howie J at 19; Hislop J at 20 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW: - Appeal against conviction - Charges of obtaining money or a financial advantage by deception - Alleged defrauding of employer - Admissibility of evidence of appellant's acknowledgment of debt to employer - Adequacy of directions about that evidence Crimes Act LEGISLATION CITED: Evidence Act R v Cook (2004) NSWCCA 52 CASES CITED: R v Laz [1998] 1 VR 453 Regina PARTIES: Anna Maria Centraco FILE NUMBER(S): CCA 2004/1824CCAP S Odgers SC with H Dhanji (appellant) COUNSEL: D Woodburne (Crown) Murphys Lawyers Inc (appellant) SOLICITORS: S. Kavanagh - Solicitor for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/3420 LOWER COURT JUDICIAL OFFICER: Moore ADCJ IN THE COURT OF CRIMINAL APPEAL 2004/1824 HIDDEN J HOWIE J HISLOP J 16 February 2005 REGINA v Anna Maria CENTRACO Judgment 1 HIDDEN J: The appellant, Anna Maria Centraco, was tried in the District Court upon an indictment containing three counts of obtaining either money or a financial advantage by deception, each of them an offence under s178BA of the Crimes Act. She was found guilty of all the counts and, in due course, was sentenced on each of them to imprisonment for four years with a non-parole period of eighteen months, to be served concurrently. However, she had by then lodged an appeal against conviction, and on the day sentence was passed the trial judge released her on bail pending the outcome of the appeal. It is that appeal, against conviction only, which is before this Court. The trial 2 The evidence in the trial was quite detailed, but for the purposes of the appeal a very broad outline of it will suffice. Between March 1999 and March 2001 the appellant was employed as a bookkeeper at Leo's Plumbing Services, trading under the name "A1 Class Plumbing and Maintenance", at Lurnea. The business was conducted by Mr Leo Vitagliano. The appellant had been a friend of his sister, Maria. At the trial that lady gave evidence under her married name, Maria Iacovella. 3 It was the Crown case that during the period of her employment the appellant defrauded the business of a substantial amount of money in three different ways, each of them represented by a count in the indictment. The first count related to a large number of cheques drawn on the business account which, it was alleged, she had cashed without Mr Vitagliano's authority. The proceeds of those cheques were roughly $335,000. The second count related to eight cheques drawn on the business account which, it was alleged, she had deposited into her own account without her employer's authority. The value of those cheques was about $80,000. The third count related to her completion of several wage schedules whereby a sum of about $38,000, to which she was not entitled, was paid into her own account. There was evidence from which it might be inferred that some, if not all, of the money defrauded was spent on gambling. 4 It was also the Crown case that on 29 March 2001, when the appellant's fraudulent activity was suspected but before any police investigation had commenced, Mrs Iacovella phoned the appellant and told her that she should return any money she had taken from her brother. The appellant asked for time to rectify the problem and said that, if necessary, she would sell a property she owned in Balmain and shares which she held. Later that same day Mr Vitagliano and Mrs Iacovella went to the appellant's residence. After further discussion, the appellant signed a statutory declaration in which she acknowledged owing "approximately $150,000" to "A1 Class Plumbing", and undertook to pay it back over a period of four months or, if that could not be done, to sell the property and shares to which I have referred. 5 That statutory declaration was admitted into evidence over objection. It bears the date 29 March 2001 and appears to have been signed by the appellant and witnessed by Mrs Iacovella, who was a Justice of the Peace. (On the document she used her maiden name, M G Vitagliano.) It is this document which is the focus of the appeal. 6 As to the first count, the appellant's case was that any cheques she cashed were cashed at Mr Vitagliano's request and the proceeds were returned to him. As to the second count, her case was that she received each of the cheques from Mr Vitagliano, who asked her to deposit them into her account and then withdraw the funds and return them to him. This she did. She understood that he was going to claim these amounts as tax deductions, representing that the cheques had been drawn for the purchase of materials. As to the third count, it was her case that the relevant entries in the wage schedules were genuine mistakes, and in each case she paid the money back when the error was discovered. Generally, she denied having defrauded her employer in any way and said that her gambling was funded from legitimate sources. 7 As to the statutory declaration, the appellant's case was that she wrote out the body of the document on Mr Vitagliano's instructions much earlier than 29 March 2001. She could not recall when it was but thought that it would have been about January 2000. She said that Mr Vitagliano wanted her to prepare the document, in effect, as an acknowledgement of debt in relation to the cheques which he had given her to deposit into her own account (the subject of the second count). As she put it in evidence, "…he thought… if I give you these cheques you might do a runner on me, so just have something in writing." However, she said that she refused to sign it and that Mrs Iacovella was not present at the time. She said that the signatures on the exhibit purporting to be hers were not in fact hers and, despite the appearance of the document, she denied that it had been formally executed at the end of March 2001 in the manner alleged by the Crown. 8 The evidence in the Crown case was partly direct, such as the evidence of Mr Vitagliano himself, and partly circumstantial. An example of the latter was evidence showing a correlation between some of the cash cheques the subject of the first count and deposits into a TAB account held by the appellant. In his summing up the trial judge explained the distinction between the two types of evidence and gave the jury a conventional direction about circumstantial evidence. The appeal 9 Two grounds of appeal were argued by Mr Odgers SC, who appeared with Mr Dhanji for the appellant. Neither of them had appeared at the trial. The grounds are linked and it is convenient to deal with them together. The first ground challenges the admissibility of the statutory declaration to which I have referred, and the second ground complains that his Honour's directions to the jury about that document were inadequate. 10 As I have said, the statutory declaration was objected to at the trial. That objection invoked the discretion conferred by s135 of the Evidence Act and the balancing exercise required by s137 of that Act, and was based upon the form of the document and the circumstances in which it was said to have been executed. It is not necessary to examine the basis of the objection or his Honour's reasons for admitting the document. As will be seen, Mr Odgers did not challenge those reasons but argued that it should have been rejected on another basis. 11 In summing up his Honour explained the relevance of the statutory declaration in this way; The Crown puts that statutory declaration, so it is alleged, before you, as part of the circumstantial evidence in the Crown case. You will see what the declaration says that Ms Centraco has agreed that it is her printed handwriting on it that says she owes $150,000 to Mr Vitagliano. If you were to say we accept that this was given in the way that Mr Vitagliano and his sister say, that does not simply prove the Crown case on one or all of the charges. It is one piece of evidence and it is part of that circumstantial evidence that I have mentioned to you, because it does not refer to any of the items in any of the charges particularly. The accused, however, has strongly attacked the Crown case on that, and the evidence of Ms Centraco was that the statutory declaration did not come into existence in the way that Mr Vitagliano and his sister say. She says that it was all part of the tax scam relating to the way in which she was putting cheques into her own account. So it seems to apply to the second charge on the indictment in that way. Although on the Crown case it is a general admission relating to each of the three charges. 12 In this Court Mr Odgers submitted that the document was irrelevant or, at the least, had a minimal probative value which was clearly outweighed by the danger of unfair prejudice to the appellant, within the meaning of s137. He pointed out that the evidence could not be related to any particular count in the indictment, noting that the amount of about $150,000 referred to in the declaration does not correspond with the amounts alleged to have been defrauded in any of the counts (although it is not far from the sum of the amounts the subject of the second and third counts, respectively $80,000 and $38,000). He also argued that there was a danger of the evidence being used impermissibly by the jury as tendency evidence, by which they might conclude the appellant's guilt of each of the three counts simply from an admission that she had in some way obtained money improperly from her employer and recognised an obligation to return it. He noted, correctly, that the evidence had not been admitted or left to the jury as tendency evidence. 13 He relied, by way of analogy, upon two cases concerned with evidence said to demonstrate a consciousness of guilt, but I do not consider that either of those cases supports his argument. In R v Cook (2004) NSWCCA 52, a case in which this Court held that evidence of flight had been wrongly admitted, Simpson J at [21] – [22] reviewed the principles to be extracted from cases dealing with lies as evidence of consciousness of guilt, noting at [23] that the lie must be capable of being seen as indicating a consciousness of guilt of the specific offence with which the accused is charged. Her Honour went on to observe (at [25]) that those principles are readily adaptable to evidence of flight. However, what her Honour said at [23] must be understood in the context of the case with which she was dealing. That appellant was tried on a single count of sexual assault, and it was held that the evidence of flight should have been rejected because his flight could fairly have been attributed to a consciousness of guilt of criminality other than that charged: see her Honour's judgment at [48]. 14 The other case relied upon was the decision of the Victorian Court of Appeal in R v Laz [1998] 1 VR 453. That appellant had been found guilty of two counts of rape, one by digital penetration and one by penile penetration. In interviews with the police he had denied any sexual conduct with the complainant, but in evidence at the trial he admitted digital penetration, although he claimed that it had been consensual. He acknowledged that he had lied to police in the first interview, when the allegation of digital penetration had been put to him and he had denied it. The successful ground of appeal, concerning the trial judge's directions to the jury about lies, was dealt with by the Court at 465ff. It seems that the effect of those directions was that the appellant's denial of sexual conduct in the police interview could be used in some general and unspecified manner as evidence of consciousness of guilt. For reasons which are not presently germane, the Court held that those directions were in error. However, in passages upon which Mr Odgers relied at 466-7, the Court dealt particularly with the failure of the trial judge to distinguish between the appellant's general denial of sexual contact and his admitted lie denying digital penetration, noting that that lie could have been relevant only to the count alleging that conduct. The case turned upon its own facts, and nothing in the judgment bears upon the question to be determined in the present case. 15 In exchanges with the Bench in the course of argument, several possible bases of admission of the statutory declaration were canvassed. However, in my view, the simple answer to the problem is that argued by the Crown prosecutor in this Court. In every trial of an accused on a number of counts it is necessary that each count be considered separately, but it is likely that there will be some evidence which is common to some or all of them. In the present case evidence that the appellant acknowledged indebtedness to her employer in the circumstances alleged by the Crown was relevant to all three counts. Particularly was this so given that the Crown case alleged a pattern of dishonesty over an extended period of time, the three counts merely representing the different methods employed. The evidence was available as an admission of a fact relevant to each of the counts although, of course, it could not have been determinative of any of them. Whether the amount of the acknowledged indebtedness corresponded with the amounts the subject of any one or more of the counts is not to the point. In that regard, it should be remembered that, even on the Crown case, the statutory declaration was made out before the appellant's alleged defalcations had been formally investigated, at a time when the full extent of them might not have been known. 16 From the passage of the summing up quoted above it is apparent that this is precisely how the evidence was left to the jury. In particular, his Honour explained that it was relied upon by the Crown as a "general admission" in respect of the three charges, that it did not relate to any particular charge and that, of itself, it was incapable of proving any of them. Earlier in the summing up he had given an appropriate, indeed emphatic, direction about the need for separate consideration of each of the three counts. The statutory declaration was admissible for the reasons explained to the jury by his Honour and it does not appear to me that there was any danger of the jury using it impermissibly as tendency evidence. 17 What I have said is sufficient to dispose of the second ground of appeal concerning his Honour's directions about the document. That ground also was founded upon the assertion that the evidence needed to be related to a particular count or counts, and that the jury needed to be warned against using it as evidence of a dishonest propensity on the part of the appellant in her dealings with her employer. For the reasons I have given, no such directions were called for and, consistently with the manner in which the evidence had been approached during the trial, none was sought. What his Honour did say about the evidence was all that was required. 18 In my view, neither ground of appeal is made out and the appeal should be dismissed. In that event, the appellant must be taken into custody to serve the sentences imposed upon her. 19 HOWIE J: I agree with Hidden J. 20 HISLOP J: I agree with Hidden J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.