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No Conviction for 8 Counts of Embezzlement


Our client was working for a large retailer and was alleged by the company to have misappropriated nearly $20,000 worth of cash and stock. Even though our client denied almost all of the claims, our client was pressured into making admissions of significant wrongdoing, after having been threatened with severe criminal charges and lengthy gaol time by an external investigator. Our client was ambushed by the allegations, and did not have the benefit of legal representation or even another person in the room.

After being forced to sign a document under what could be described as conditions of duress, the matter was referred to Police, who subsequently laid multiple charges under section 157 of the Crimes Act 1900 (NSW), Embezzlement by clerk or servant. The law allows for a maximum penalty of 10 years imprisonment for each count if the case is heard in the District Court, or two years if the case remains in the Local Court. A conviction would have been devastating for our client.

In its case, the Prosecution sought to adduce evidence of the forced admissions and rely on these to prove the guilt of our client.

Our client maintained throughout the legal process that although there might have been some minor transgressions, they were nowhere near the extent or amount of that claimed by the company, which had a history of problems with stock loss and misappropriation.

Our defence team worked closely with our client to ascertain exactly what had happened, and examined in detail the Prosecution Brief of Evidence. After forming a legal opinion, we prepared a strong argument on the exclusion of the admissions on the basis of them being wrongly obtained, and therefore inadmissible under section 85 of the Evidence Act 1995 (NSW).

That provision of the Evidence Act refers to the reliability of admissions by defendants in criminal cases.

Admissions, by their very nature, are highly prejudicial to a defendant; that is, they carry substantial weight and are very persuasive to a judge or jury. The Australian Law Reform Commission, in considering the law, said that it ‘…requires the trial judge to be satisfied on the balance of probabilities that the admission was made in circumstances that were not likely to affect its truth adversely. The trial judge should determine, as a preliminary issue, whether the reliability of the admission may have been impacted by the way it was obtained. In making his decision he should take into account a number of factors – whether there was misconduct by those interrogating, whether procedural safeguards were adopted, whether the ability of the person making the admission to make rational decisions was substantially impaired.’

The law of admissions is balancing act. It recognises that admitting to a certain offence does and should be indicative of guilt. But it is also a procedural safeguard. Our system of laws is based on arriving at a conclusion on the basis of accurate, unbiased, and properly obtained evidence. Forced admissions are an affront to a good and fair legal system.

Ultimately, our team conducted a negotiations process with the Crown Prosecutor, which resulted in a plea of guilty being entered to a single charge and the facts more accurately reflecting what had actually occurred. On sentencing, the Court dismissed the matter without proceeding to conviction, conditional of our client being of good behaviour for a period of two years.

The case shows the importance of a forensic assessment of a Prosecution case and intimate understanding of evidentiary and procedural provisions, to ensure that our system of laws and procedural safeguards are maintained.

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