R v Bourke [1955] PGSC 2 (22 March 1955)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA.

Judgment delivered by Mr. Justice Kelly at
2.00pm on the 22nd March 1955.

R v. BRIAN THOMAS BOURKE

The accused is charged that between the 29th July 1954 and the 3rd November 1954,in the Territory of Papua, he stole the sum of £228. 9.3 the property of Alan McNeil McCormick and other members of the Australasian Petroleum Company's Badili Club; the indictment was amended on two occasions and that amount stands in the indictment on the allegation by the Crown.

The accused himself did not give evidence - an attitude which he is quite entitled to adopt. He made a statement from the dock in which he admitted that he did his bankings at irregular periods and that he did not keep his books in a proper manner - I think he used the word 'careless'; neither of which means that he is criminally liable. He also stated that he felt morally wrong in the matter - again which is not criminal liability.

His counsel, Mr. Kirke, stated that the defence was a complete denial of the allegation but even if the Crown could prove a deficiency, it would be impossible for me, functioning as a jury, to arrive at any definite figure of that alleged deficiency. Therefore, I would be only guessing at the amount of any such alleged deficiency and, therefore, that the accused should be acquitted. I agree with Mr. Kirke that there were many figures adduced at this hearing and I think I did state at one stage of the trial that I might find myself trying to convert myself into an accountant to understand those figures, but so far as any alleged deficiency is concerned, I think Mr. Lalor for the Crown has summarised it very briefly. Despite all the figures mentioned by different witnesses and shown in the books and records tendered in evidence the audit alleges, those amounts of the Club. Those by Mr. Cullen has pin-pointed, so far as the Crown upon which the Crown bases its case on the records of the club. Those records are divided into three periods:

The first period, from the 29th July 1954, when the accused was appointed Treasurer of the Club, until the 12th August 1954, during which period there were practically no records kept of the Club's finances and, for the purposes of his audit, Mr. Cullen accepted the amount banked as being the correct amount of money received.

The second period was from the 13th August, 1954 to the 18th October 1954 over which period the accused apparently kept a cashbook in reasonable book-keeping older.

The third period was from the 19th October 1954 to the 3rd 1954. On the latter date the accused was relieved of his position as Treasurer. During that period Mr. Cullen depended upon an Exhibit, referred to as a bar-book, in which the bar takings were recorded and, so far as the Crown's case is concerned, the monies were handed over to the accused and initialled by him as having been received by him.

The first period is taken as correct under the audit, leaving so far as the Crown alleges, the following items:-

Difference between bar takings and Banking	£13.19.3
Picture takings	96.-.-.
Funds from dance night	70.-.-.
Re-presented cheques	54.-.-.
Making a total of	£ 233.19.3

from which has been deducted as cheques not presented, and apparently not worth presenting, an amount of leaving the amount as alleged by the Crown against the accused as £228.9.3.

During the second period - 13th August to 18th October,1954 - an audit was made on the figures shown in the cash-book, but with the variation of two items. The first is an amount of £38.ll.-. Now I must admit that I am not quite sure from my notes as to the exact date of that item in the cash-book; it may have been 12th or 13th August or may have been the 20th August., but, in any event, that amount on the audit goes in favour of the accused if I do find a discrepancy. Mr. Cullen stated there may have been a duplication and, rather than bring it into account he dropped that amount out. The other item is the sum of £59.8.-. appearing in the cash-book under dated 16th August, 1954. That came into a weekend bar takings and up to that stage Mr. Harrip, the bar officer, did not keep detailed records of the bar takings, but he did produce a page of a small pocket diary, tendered as Exhibit "H" on which is shown for my purposes - Saturday 14th, £36, Sunday 15th, ,£61.10.-. - those figures are in ink and may have been over-written by somebody other than Harrip - but immediately over the Sunday entry there is in pencil £120.8.-. The amount of £59.8.- in the cash-book was struck out and not costed up, but on the evidence of Harrip and on the submission of Mr. Lalor for the Crown, I accept the position to be that that £59.8.- is correct as appears in the cash-book for whatever proof that may be in any alleged deficiency against the accused.

Taking those two amounts into consideration, then according to the cash-book and on the bar takings which were recorded as £3,701.17.6 as against bankings £3,689.18.3., there was a shortage of £13.19.3.

The second item, the picture takings of £96 was in dispute to some extent at the commencement of the hearing of the case. At a meeting of the Committee at which the accused appeared and made a voluntary statement - If I can use the term of voluntary statement - to the members of the Committee, he wished to have the picture takings fixed. The Committee fixed the picture takings at £10. per night, but after cross-examination by Mr.Kirke of the witnesses concerned in that and the statement by the accused from the dock, the Crown accepted the accused's average of £8.per night at 12 nights, that excludes two picture nights during the first period: therefore, for the purposes of any decision which I may make on the figures, I take that figure as admitted at £96.

The third item - £70 - received as admission charges to a dance at the Club on the evening of 16th September. In that respect I quote from the evidence of Mr. Cullen: "The £70 from the dance night were the admission fees to a dance held at the Club on 10th September 1954. The cash was counted by two persons in my presence in the office on the morning of the 11th and handed to Mr. Birke - it was counted by Mr. Taylor and Mr. Voorwinden. That £70 was there on the morning of the 11th September following the evening of the dance."

The fourth item - .re-presented cheques amounting to £54 - those cheques were not challenged by the defence so far as any alleged deficiency is concerned and, on the evidence of Mr. Cullen who made the audit, it appears to me that it was a simple matter of book-keeping; cheques which had been dishonoured during the period, but presented again and then honoured.

As to the deduction of £5.10.-. from the total of those four items mentioned above apparently on the evidence they were not worth presenting and had been written off.

The accused in his statement from the dock challenged four items. The first item was the bar takings on the night of the dance. He stated that he took from one of the tills the sum of £26 for payment to the orchestra and that he put into the bar till a chit for £26 as an i.o.u. That challenge by him was in the statement from the dock and as to any alleged allegation I am afraid I cannot give that challenge the same weight as the sworn evidence before me, and that sworn evidence is that on the morning after the dance there was £157 odd in cash and when I say cash I mean cheques and actual cash in his hands. It was shown firstly at £159 odd but he drew attention to an error, as he claimed in the counting of that cash, that it should be £157 odd. In his statement from the dock, he,did not say "When I disputed that amount I pointed out that there was £131 in money and my i.o.u. for £26". On the evidence before me nobody appears to have seen the i.o.u. for £26. Therefore, on that point as raised by the accused, I find that on the morning after the dance, he received as bar takings £157 odd. I was under the belief when I did make my brief notes for the purpose of my oral judgment that £13.5.-. was also taken from the bar takings that night - having been corrected and subject to amending my remarks on this point in any written judgment, I do not know of any evidence before me on which the accused would be entitled to a credit from the bar takings or any other monies in respect of that £13.5.-.

On these figures as adduced by the Crown, I do find that there was a deficiency of £228.9.3. There is still for consideration the question as to whether the accused is criminally responsible for that amount having been stolen.

Mr. Kirke, counsel for the accused, has submitted that there would have been opportunities for other people taking part in handling the monies of the Club to have stolen some of those monies - i.e. taking money from the till - but as I see the evidence adduced on behalf of the Crown that does not come up for consideration. The accused is charged with stealing money which the Crown alleges actually came into his possession. The accused himself stated that it was not his usual practice to check his cash as he received it. If he chose to give a receipt for it, then it was his duty to protect himself by checking that cash. There was also a cheque for £7.10.-. which was drawn by the accused and paid to a member of the Club in settlement of a debt; that cheque was cashed by the person,who received it over the bar counter, it then became property in the hands of the Club. Some little time later it was seen in the accused's room and, on the evidence before me, I am convinced that that cheque was not banked into the Club's account, therefore I cannot give the accused any benefit in that respect. There is another cheque, £21.4.8. for liquor and other goods supplied to the accused by the Club in connection with a party that he and another member of the Club held, that is shown as an amount against the accused in Exhibit "C". In his discussion with the Committee, he claimed that he had Paid that cheque into the Club's funds and that he had shown it to the bar officer for sighting - whatever that may mean I do not know. He admitted to Sub-Inspector Fisher that he paid that cheque into the Club's funds, but in his statement from the dock he stated that he admits owing that amount to the Club as a debt. There is no definite evidence before me on the point as to what actually happened to that cheque. Harrip said he did not see it. It may be that the accused may not have wanted to admit to the Members of the Committee that he had not paid the amount, because on the evidence he had received his half of that amount, from the other convenor of the party; it may be that he was then lying and that now in his statement from the dock he is telling the truth, that in fact he did not pay the cheque in and that he owes that amount to the Club. A s there is no evidence here before me on which I can decide beyond reasonable doubt, I have given him the benefit of that amount, that he is not criminally liable but owes the amount to the Club as a debt and now reconsidering the position of the £13.5.-. payment to Moriarty for the catering, as I am not sure about that - I feel quite sure about the £26 that he did take it out on the evening of the dance and paid it to Woodington and on the following morning the £137 was the amount of cash actually in his hands - I shall also give him the benefit of the doubt in that respect which will bring the alleged deficiency to £193.19.7.

On the statement by the accused from the dock I do not feel disposed to believe him when he says that he admits that his monies were short - morally admits it - but any shortage was due to his carelessness.
I cannot accept that statement by him and I find that the Crown has proved a deficiency or proved on the books that there was a shortage of £193.19.7, and I find that the accused stole that amount from the Australasian Petroleum Company's Badili Club.