Eastman v Director of Public Prosecutions

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT 1 HER HONOUR: By letter dated 9 January 2007, the applicant, Graham Patrick Higgins, makes an application under s 474D of the Crimes Act 1900 (repealed) for an inquiry and review of his conviction and the sentence imposed upon him on 6 March 2006 following a trial in the District Court of New South Wales at Lismore before his Honour Black DCJ and a jury for one count of "fraudulently omitting to account" contrary to s 178A of the Crimes Act.

The new statutory scheme for review 2 On 23 February 2007, Part 13A (ss 474B-474N) of the Crimes Act was repealed and re-enacted as Part 7 (ss 76-88) of the Crimes (Appeal and Review) Act 2001. Applications that have not been finally determined before the repeal of Part 13A are taken to be applications under the corresponding provisions of Part 7 of the Crimes (Appeal and Review) Act: cl 13, Schedule 1. The current application must therefore be determined pursuant to Part 7 of that Act. See also Application of Antoun El Hani [2007] NSWSC 330, per Johnson J at pars 2 to 4. 3 The relevant sections of the Crimes (Appeal and Review) Act ("the Act") are reproduced below: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) The Supreme Court may defer consideration of an application under section 78 if: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)." 4 There is no material difference between the new and old provisions. The legislation reaffirms the administrative nature of an application for an inquiry into a conviction or sentence. It involves the Court exercising an administrative decision-making power. The Court may consider written submissions made by the Crown in determining an application: s 79(4). See also Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 par 124. 5 Section 79(2) provides that the test to be applied in considering whether to recommend the holding of an inquiry is whether there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. The reported decisions that considered the old legislation permitted the holding of an inquiry where the material causes the person considering the matter any unease or a sense of disquiet in allowing the conviction or sentence to stand: see Application of Antoun El Hani [2007] NSWSC 330 at par 6; Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48.

History of proceedings 6 The applicant was convicted and sentenced on 6 March 2006 in the District Court of New South Wales at Lismore, before his Honour Judge Black DCJ and a jury, for one count of "fraudulently omitting to account", contrary to s 178A of the Crimes Act. On 6 April 2006, his Honour sentenced the applicant to imprisonment for a non-parole period of 1 year and 9 months with a balance of the term of 1 year and 3 months. 7 A Crown appeal against the sentence was dismissed (R v Higgins [2006] NSWCCA 326). The applicant's appeal against conviction was also dismissed (Higgins v R [2007] NSWCCA 56). He did not seek leave to appeal against sentence. There is currently no application filed for special leave to appeal to the High Court from the decision of the Court of Criminal Appeal. 8 The applicant relied on two grounds in his appeal to the Court of Criminal Appeal: (1) The trial judge erred in admitting into evidence an interview between the appellant and Commonwealth Bank investigators that occurred on 8 September 2003 and an interview between the appellant and police that occurred on 18 November 2003; and (2) The trial judge erred in his direction to the jury regarding circumstantial evidence.

9 As to the first ground of appeal, it was submitted that the bank interview should have been excluded pursuant to s 84 of the Evidence Act 1995 on the basis that the applicant participated in it under the influence of oppressive conduct of senior bank staff and the investigators, or subject to the threat of oppressive conduct on the part of either the bank or its investigators.

10 Hoeben J (Sully and Bell JJ agreeing) accepted that s 84 does not require the isolation of a single reason or a single incident of misconduct provoking the confession, since there may be a number of factors working together (citing R v Zhang [2000] NSWSC 1099, per Simpson J). They also accepted that the concept of oppression should not be limited to physical or threatened physical force but can encompass mental and psychological pressure. They were, however, satisfied that there was nothing in the conduct of the bank or its officers that could amount to "oppressive conduct".

11 It was further submitted that the bank interview should have been excluded pursuant to s 90 of the Evidence Act. It was submitted that the relevant unfairness was the use of the bank interview by the prosecution in criminal proceedings as the appellant had only been told that the interview "could be used in the bank's deliberations".

12 Hoeben J considered that the appellant's adoption of the bank interview when he was interviewed by police was decisive in disposing of the first ground of appeal. On that occasion the appellant was given a full caution and in fact spoke to his solicitor before participating in the interview. Hoeben J observed (at par 39): "In the course of that interview he suggested to the interviewing officers that there was no point in them asking him further questions about how Mrs Loder's cheque was dealt with since he had already been comprehensively questioned on that subject by the bank investigators. He told the interviewing police officers that he accepted that the interview with the bank was correct and he did not wish to alter the content. The interviewing officers gave him the opportunity of re-reading his bank interview and again he adopted it as accurate." 13 In relation to the second ground of appeal, it was submitted that the directions of the trial judge lacked the detail and emphasis required in the circumstances of the case such as to appropriately direct the jury as to the relevant law to be applied to the facts as the jury might find them. In particular, it was submitted that the trial judge did not make it clear that in a circumstantial case the onus of proof is on the Crown and, as such, any inference or conclusion sought to be drawn by the Crown from the facts must be a conclusion reached by the jury beyond reasonable doubt, and that any such conclusion must be the only reasonable explanation or inference to be drawn from those facts.

14 Counsel for the applicant at trial did not seek redirections on this or any other aspect of the summing up. Consequently, on appeal, rule 4 of the Criminal Appeal Rules 1912 applied. The Court was not persuaded that there was error in the directions as to circumstantial evidence and, furthermore, the Court considered that it was entitled to conclude that his Honour's directions considered in context were accepted by counsel in the trial as not revealing error. Leave to rely upon the second ground of appeal was refused. 15 The present application does not seek to re-agitate either ground of appeal. What is significant, however, is that the applicant was represented by counsel on the appeal (and I assume in the identification and preparation of the grounds of appeal) and that no issue was raised as to the adequacy of the police investigation and no ground of appeal based on fresh evidence was advanced. By contrast, through his counsel at the trial, the applicant challenged both the sufficiency and the impartiality of the investigation by both the bank and the police, and highlighted for the jury's consideration what was said to be the flawed system of document management in the bank's internal systems. While I do not regard these matters as of themselves justifying my refusing to consider the application at all pursuant to s 79(3)(a) of the Act, they are relevant to the determination of the application for an inquiry into the conviction for reasons which I will return to later in this judgment. 16 On the other hand, since there was no application for leave to appeal against sentence, I am satisfied pursuant to s 79(3)(a)(ii) that I should refuse to consider further that part of the application that concerns sentence. The Crown case in summary

17 The Crown's case against the applicant at trial was that Mrs Doreen Loder, a customer of the Commonwealth Bank of Australia (CBA) at Tweed City, the branch where the applicant was the Branch Manager, had instructed the applicant to invest the proceeds of a cheque in her favour in the sum of $78,303.08. The Crown case was that the applicant did not follow these instructions and that he negotiated the cheque and ultimately used the proceeds for his own purposes in breach of s 178A of the Crimes Act. The elements of that offence are that the accused collected or received money upon terms that required him to, inter alia, account for the whole and/or part of that money to any person and that he fraudulently misappropriated, to his own use, the whole or any part of that money. 18 It was not in contest that in September 2001 Mrs Loder received a trust account cheque drawn on the National Australia Bank (NAB) (Murwillumbah Branch) representing the proceeds of sale of a unit she owned in a retirement village. Furthermore, it was not in contest that the trust account cheque was in the sum of $78,303.08 and that it was presented for payment at the Tweed Heads branch of the CBA on 3 October 2001 when eight bank cheques in the amount of $8600 were issued together with an amount of cash. It was also not in issue that these cheques were in turn presented for payment at the Tweed Heads branch of the CBA and that in each case the cheques were negotiated for cash. The applicant's case in summary 19 The applicant's case at trial was that he had initially received the cheque from Mrs Loder at the retirement village where she was a resident on 2 October 2001 with instructions to invest the money in a term deposit for 12 months, but that he received a telephone call from Mrs Loder on the following day advising the applicant that she did not wish to go ahead with the investment. The applicant claimed he returned the cheque to her by again attending on her at the retirement village for that purpose. He said that he requested Mrs Loder return the receipt that he had given to her the previous day but that she was unable to find it. The applicant's case was that the cheque was then delivered to the bank by a third person, endorsed by Mrs Loder and together with written instructions from her to pay the proceeds of the cheque to eight people by way of eight bank cheques in given amounts and to provide the balance in cash. He claimed he followed these instructions and that he gave the bank cheques to this same person together with the cash. He further claims that from time to time over a four-week period he authorised the cashing of these same cheques when the eight payees presented the cheques for payment. He gave evidence that the payees made arrangements with him in advance of them attending the bank so that he could authorise the cashing of the cheques. The evidence at trial 20 Mrs Loder died at Tweed Heads on 17 February 2002. Mr Gordon Salier, a solicitor and the husband of Mrs Loder's niece, sought a grant of probate as solicitor acting for the executor of her will. Probate was granted on 10 March 2004. Mr Salier also received Mrs Loder's possessions from Therese Hawkey (Mrs Loder's general Power of Attorney). Amongst Mrs Loder's possessions, Mr Salier found a receipt dated 3 October 2001 issued by the Commonwealth Bank of Australia (CBA) for $78,303.08 recording the fact that the amount of $78,303.08 was to be placed on a 12-month deposit at 4.35 per cent interest per annum (Exhibit C). The receipt bears the applicant's signature.

21 Shortly after Mrs Loder's death, in a letter dated 26 February 2002 (Exhibit D), Mr Salier requested payment for funeral expenses from one of Mrs Loder's accounts. Mr Salier further requested that the bank itemise all of her assets and liabilities. In a letter dated 5 March 2002 (Exhibit E), the applicant confirmed that the funeral accounts had been paid and that the CBA would forward a Certificate of Balance to assist Mr Salier with his application for a grant of probate. 22 On 25 March 2002, the Deceased's Estates section of the CBA provided Mr Salier an itemised list of Mrs Loder's assets and liabilities (Exhibit G). In an unsigned letter dated 5 June 2002 (Exhibit H) and addressed to the Deceased's Estates section of the CBA, Mr Salier referred to what he regarded as errors in this account of Mrs Loder's assets. Firstly, he noted that an amount invested on 2 February 2001, itemised as $19,000, was in fact $26,000 (this discrepancy is not relevant to Mr Higgins' charge). Mr Salier also noted that the $78,303.08 deposit, the subject of the receipt found in Mrs Loder's possessions was not included in the account of assets. Mr Salier supplied a copy of the receipt. 23 Ms Jennifer Ann Kelly, manager of the Deceased's Estates section, requested her staff investigate the matter (Exhibit T). In a fax to Ms Kelly, dated 14 June 2002 (Exhibit U), the applicant explained that the interim receipt was issued by him but that Mrs Doreen Loder later changed her mind about the investment. In her evidence at trial, Ms Kelly stated that she telephoned the applicant to confirm his account of events. Ms Kelly made contemporaneous notes of this conversation on the fax dated 14 June 2002 (Exhibit U). 24 Ms Kelly then wrote to Mr Salier on 18 June 2002 (Exhibit K) and advised that the bank was unable to identify an investment of $78,303.08. The letter also reports that as a result of inquiries made by the bank, the applicant's account was as follows: "…called to see Mrs Loder at the nursing home after work and she gave him a cheque to invest in a Term Deposit. Mr Higgins issued an interim receipt for the amount however Mrs Loder contacted Mr Higgins the next day prior to the investment being processed and advised she did not wish to go ahead with the investment. The cheque was returned to Mrs Loder. Mr Higgins has no further knowledge of how the cheque may have been negotiated " (emphasis added).

25 In a letter to Mr Salier dated 3 July 2002 (Exhibit L), the applicant claimed that he could not recall the full details of the circumstances surrounding the issue of the receipt, and that when Mrs Loder indicated that she had changed her mind regarding the term deposit investment she was unable to locate the receipt. He also claimed no recall of any details regarding the cheque or whether and in what circumstances it had been negotiated. 26 The Crown case was that this was a false account and, moreover, that his inability to recall in July 2002 the transactions recalled in detail some months later was because he was hopeful at that time that the executor would not press the bank for recovery of the proceeds of the cheque and that in this way his criminal conduct would not be revealed. 27 Mr Salier, however, did persist in his inquiries of the applicant and in a letter dated 13 September 2002 (Exhibit M), he drew attention to the fact that the amount of $78,303.08 represented the net proceeds of sale of the unit in the Terranora Retirement Village, that Messrs Hynes & McCormack acted for her in the sale, that they had provided her with a trust account cheque in the sum of $78,303.08 and that it was presented for payment through the CBA. Mr Salier provided the applicant with a copy of the cheque endorsed by Mrs Loder and date stamped by the CBA. Mr Salier correctly noted that it appeared that the cheque could not have been returned to Mrs Loder, as the applicant contended, because the cheque was clearly presented for payment. He observed that if another cheque were drawn by the Commonwealth Bank by way of refunding Mrs Loder then it would be expected that the bank would have relevant details of that transaction and would be in a position to identify whether the cheque presented for payment was a replacement cheque. 28 In a letter dated 17 September 2002 (Exhibit N), the applicant assured Mr Salier that a request had been made for details of the transaction from the CBA's record centre and that the information would be forwarded once it was at hand. Notably, Exhibit M did not trip the applicant's memory of the course of his dealing with Mrs Loder's cheque, his receipt of her detailed written instructions via the agency of a third person and the manner in which he discharged those instructions. 29 In a letter dated 14 October 2002 (Exhibit O), Mr Salier expressed concern about the delay in receiving the information he sought and the fact that it was delaying the issue of the grant of probate. 30 By letter dated 16 October 2002 (Exhibit P), the applicant confirmed that the cheque was negotiated at the Tweed City Branch and advised for the first time that the proceeds were dispersed by way of eight bank cheques, each valued at $8600, to nominated payees with $9459.88 paid in cash, and the remaining $43.20 paid as bank fees. The applicant stated in this letter that he now recalled Mrs Loder's instructions to disperse the funds in this manner and that she endorsed the reverse side of the trust account cheque in his presence.

31 In a letter dated 28 October 2002 (Exhibit Q), Mr Salier reported that his wife (Mrs Loder's niece) had considered the names in which the cheques were drawn and could offer no explanation as to who they were or their relationship with her aunt, including the putative payees T Loder and D Loder who might reasonably be thought to be relatives of Mrs Loder. The payee noted as "J Parker" was known to Mrs Loder's Power of Attorney but upon enquiry, that person said that they did not receive or present a cheque for payment. Mr Salier also expressed the view that given Mrs Loder's age and circumstances, she would have no need for $9459.99 in cash and that no significant amount of cash was located on her death. 32 In a letter dated 1 November 2002 (Exhibit R), the applicant stated that another request for further information from the CBA's record centre had been made. In a further letter dated 19 November 2002 (Exhibit S), he confirmed that the bank cheques were presented by the named payees but advised that National Privacy Principles and industry privacy codes restricted him from providing personal details of the payees. In his record of interview he conceded that he did not seek confirmation from the bank's Head Office that the bank should adopt this position. Cashing of bank cheques 33 The following are the names of the various payees: B Hickey, M Smidt, T Loder, D Loder, D Brown, J Parker, A Bennett and P Wilson. Notably, each has a single initial only preceding the surname. The evidence at trial established that the applicant issued one bank cheque in the name of B Hickey and that Ms Terese Dalzell, a bank teller, was directed by the applicant to issue the remaining seven bank cheques. All bank cheques were valued at $8600. After the bank cheques were prepared, Ms Dalzell gave the seven cheques she had drawn to the applicant who claimed that he then passed them on to the payees through the agency of the same third person who claimed to be acting on Mrs Loder's behalf. In his evidence the applicant said (T365/34-50): "Q. So what's occurred is that Ms Dalzell, the teller… A. Yes.

Q. … Has prepared the bank cheques? A. Correct.

Q. What happens then? A. The bank cheques were returned and handed to the person that had bought in the letter of authority. Terese handed me back the letter of authority and the - there was a cash amount, I believe it was over $9000 was placed in an envelope from Terese, and that was also handed to the person that had presented the cheque.

Q. What happened next? A. That person left the branch and that was the end of that transaction at that point." 34 The applicant was unable to supply any information that might have enabled this person to be identified. He was unable to specify whether the person was a male or a female. The letter of authority was not located. He claimed no knowledge of any of the payees. In addition, neither Mrs Loder's carers, family members or her Power of Attorney knew of any person to whom she might have entrusted the task of having the cheque negotiated under her written instructions. 35 Under cross-examination the applicant explained the dispersal of cheques on 3 October 2001 in the following way (T445/44-T446/2): "Q. Well the question was this, you allowed in essence, $78,000 worth of cash to walk out that door in the hand of someone you'd never seen before? A. Not someone, nine different people, there's a difference, big difference. Q. Yeah sorry, my fault, going back to when the cheques were issued to this person or given to this person? A. Yes. Q. You say? A. Yes. Q. That's what you allowed to happen isn't it? A. I allowed $9,000 odd cash to walk out that door and I allowed eight bank cheques issued to different people for $8,600, that's what left the door that day." 36 And later (T447/41-46): "Q. Did you take these cheques, did you turn them over and did you sign them on the back purporting to be the signature of the payees? A. No, no I have never signed the back of any of those cheques. What I did with those cheques was to hand them over to your third person and the cheques left the office." (emphasis added). 37 The Branch Telling Systems transaction documents (or BTS documents) indicate that the eight bank cheques were issued on 3 October 2001. Mrs Dalzell gave evidence that the applicant informed her that the purchaser of the bank cheques was Mrs Loder and that the payees were people who had worked for Mrs Loder. The applicant disputes this aspect of Mrs Dalzell's evidence. Nevertheless, her evidence was available to the jury and, if accepted, it might have been used by them as evidence of the efforts to which the applicant went to give verisimilitude to the fraudulent scheme which he had designed to obtain access to the funds represented by the cheque. 38 Ms Dalzell also gave evidence at trial as to the procedure for the issue of bank cheques. She informed the court that bank tellers sold bank cheques to customers of the bank by either drawing money from their existing CBA account(s) or by the tender of cash. The top portion of a bank cheque is the receipt for the purchaser. The bottom portion is the bank cheque drawn in favour of a nominated payee. A carbonised document, described as the credit portion, is located underneath the bank cheque and this is where the teller usually writes the details of the purchaser (such as account number or name). After the bank cheque is sold to the purchaser/customer, the credit portion is sent to the bank's operation centre in Sydney. Under normal circumstances a bank cheque cannot be cashed, but is deposited to the payee's account. If a customer wishes to cash a bank cheque, the branch manager must give the teller his/her approval. As I have noted, in respect of each of the eight bank cheques purportedly drawn on Mrs Loder's instructions, the applicant was the source of approval for the cashing of the cheque. 39 The evidence at trial showed that various tellers cashed the eight bank cheques as follows: (i) Mrs Lee Marree Plant cashed the J Parker bank cheque in the amount of $8600 (Exhibit CC) on 4 October 2001 at 11:36 am (see BTS doc, Exhibit PP). Mrs Plant stated in her evidence (T172/24-39): "Q. Just indicate what you mean by when the cheque was presented? A. Well Graham has brought the cheque to me and just said, "Can we cash this?" and that's - I don't recall handing the money or anything like that, or what I would've given out but I just - I do recall sort of having a - Jeff Parker and no, it was, no, and that was it, the conversation - it wasn't actually a conversation but it was just you know, that was a person who came to my mind when I saw the J Parker. Q. And you said something to the accused who'd brought you the cheque? A. Yeah I just said, "Oh, Jeff Parker", and that was you know, no, it was left at that, nothing more was said about it." (ii) Ms Danielle Joanne Williams (lead teller) cashed the D Brown bank cheque in the amount of $8600 (Exhibit BB) on 5 October 2001 at 12:33 pm (see BTS doc, Exhibit MM).

(iii) Ms Kim Maree Dixon cashed the M Smidt bank cheque in the amount of $8600 (Exhibit Y) on 8 October 2001 at 12:39 pm (see also BTS doc, Exhibit WW).

(iv) Ms Danielle Joanne Williams also cashed the T Loder and D Loder bank cheques, both in the amount of $8600 (Exhibits Z and AA respectively) on 12 October 2001 at 3:47 pm (see BTS doc, Exhibit LL).

(v) Mrs Ann Marion Kirkman cashed the B Hickey bank cheque in the amount of $8600 (Exhibit X) on 16 October 2001 at 2:26 pm (see also BTS doc, Exhibit JJ). (This cheque is of particular significance in the Crown case as it bears an endorsement that resembles the name of the applicant).

(vi) Mr Darryl Craig Manning cashed the P Wilson bank cheque in the amount of $8600 (Exhibit EE) on 25 October 2001 at 3:31 pm (see BTS doc, Exhibit QQ).

(vii) Mr Craig Turner cashed the A Bennett cheque in the amount of $8600 but was unable to be contacted for the purposes of the trial. The Crown relied on BTS document, Exhibit AAA, to verify this. (The applicant draws attention to Mr Turner's unavailability as a matter of significance in his application. I will consider that matter later in this judgment). 40 It is of considerable importance, and of considerable weight, in the Crown case that it appears that none of the eight payees presented themselves to the tellers but that the applicant arranged for the cashing of the bank cheques effectively on their behalf. 41 At trial, the Crown called a Mr Robert Bruce Hickey, a Mr Clive Anthony Bennett and a Mrs Marlene Smidt. They all gave evidence that they never received a bank cheque for $8600. In addition, the Crown read a statement by a Mr John Parker in which he also denied receiving a cheque.

Bank Authority Files 42 Mr William van Beurden, a fraud investigator with the CBA, gave evidence that Mrs Loder's Authorities File (Exhibit FFF) contained her general power of attorney in favour of Therese Hawkey, but that it did not contain any written instructions for the issue of eight bank cheques each in the sum of $8600 and a sum of cash. He gave evidence that he would have expected to see documentation in the file supporting transactions of this kind, and that its absence was all the more surprising when the applicant claimed to have received Mrs Loder's written instructions to disperse the proceeds of the trust account cheque in a particular way. In a record of interview conducted by CBA investigators, the applicant claimed that Mrs Loder's instructions were in her "special file" and that such a file may have been transferred to old records. 43 Mr Van Beurden gave evidence that he had not heard of "special files" but conceded that such files may exist as "pending files" or files pertaining to specific accounts such as loan accounts. In any event, neither the special file, pending file nor the applicant's diary was found at Wacol's Record Centre in Queensland (old storage). In cross-examination, Mr Van Beurden accepted that he had not personally conducted a search at Wacol and that he was unable to comment on the standard of record-keeping at Wacol. 44 Mr Evan Griffith Davis gave evidence in relation to the procedure adopted by the bank for the disposal of old records. He stated in his evidence that documents described as "authorities" would be filed in "Authority Files". According to the evidence of Ms Jo-Ann Francis Stamm, the retention period for such files was seven years. She gave further evidence that the retention period for Manager's Diaries was also seven years and that these diaries were used by Managers to record clients' instructions and arrangements pertaining to the operation of their accounts. Notably, the applicant's diary could not be found.

Enrichment of the applicant 45 The Crown led detailed evidence of the applicant's enrichment at about the time of the cashing of the bank cheques. It was submitted that this added weight to the Crown case as an additional item of circumstantial evidence.

46 On 5 October 2001, Ms Anje Lee Craft issued a pink staff cheque to the applicant valued at $1800 (Exhibit RR) (see BTS doc, Exhibit SS). On 22 October 2001, she issued two cheques valued at $1900 (Exhibit TT) and $1855 (Exhibit UU) both drawn to a "B Stead" in favour of "Awning Designs". The BTS document (Exhibit VV) for these transactions indicate the imposition of a $5.40 bank fee that would not be charged to staff members. However, the BTS document also shows that these cheques were issued at 8:50 am when regular customers would not have had access to the bank. Mrs Bertha Stead, who was called to give evidence for the Crown, stated that she had not purchased cheques in favour of Awning Designs. She gave evidence, however, that she once lived at the address recorded on the credit portions of the bank cheques and that the applicant lived next door. 47 The Crown also called Mr Karsten Wulf who traded as "Awning Designs". He gave evidence that he entered into a contract on 12 October 2001 to construct a patio roof for the applicant. He provided a quote on 5 October 2001. The terms of the contract required the applicant to pay a $1800 deposit at the time of signing, $1900 upon arrival of all materials, and $1850 upon practical completion. The applicant tendered bank cheques in these amounts. 48 Also on 5 October 2001, the applicant deposited $3000 cash into an account in the name of his brother, Neil Higgins. The Crown called Mr Neil Higgins who stated that he had requested a loan from the applicant in order that he and his wife could start a bistro business at the Dungog RSL Club. The applicant gave an entirely different explanation for this transaction in his record of interview, claiming that his wife had come to the bank with 30 $100 notes. 49 On 12 October 2001, the applicant purchased a cheque for $800 in favour of Virtual Communities (no fee was charged). 50 On 16 October 2001, Ms Kirkman issued a bank cheque to a "Bob Hickey" for $8000 in favour of Dicksons Ltd (see cheque and BTS doc, Exhibit KK). In cross-examination, it was put to Ms Kirkman that she may have incorrectly recorded the name Bob Hickey instead of the applicant's name. However, she stated that if a staff member had asked for a bank cheque she would have added a staff number next to the name of the purchaser. 51 The Crown called Ms Elizabeth Winters, the branch manager of a company called Ord Minnett Ltd, formerly Dixons Ltd (Dicksons Ltd). She confirmed that the applicant opened an account under his name on 18 October 2001. She gave further evidence that on that date he purchased 1000 Telstra shares and 20,000 Austair shares for a total cost of $10,338.40 and that he paid using a cheque for $8000 and $2317.77 in cash. The outstanding balance of $20.63 was paid on 24 October 2001. Ms Winters gave evidence that she had no record of any transactions with a Bob Hickey. 52 The applicant could not provide an explanation for the cheque being purchased under the name of Bob Hickey. In his evidence he stated the following (T375/33): "A. Well the only thing we can say with any certainty is that it's not my handwriting that's recorded it and I haven't instructed any other officer to record those details. I know from looking at the cheque that the issuing officer was Anne Kirkman. Anne was a teller on probation at that time. I know she did indicate that she was off probation at that time but she wasn't. Her error rate was particularly high at that point. I think she simply must've got confused because…" (T375). 53 It also transpires from the evidence that 14 minutes before Ms Kirkman issued the bank cheque in favour of Dicksons Ltd, she had cashed the B Hickey bank cheque.

54 The Crown also called the applicant's mother who had apparently given the applicant $25,000 in August 2000 in the form of an inheritance cheque. Mrs Higgins had asked her son to take care of the money until she needed it from time to time.

The present application 55 A substantial amount of material has been received from the applicant in support of his application. A great deal of it was repetitive. Submissions were also sought and received from the Crown Solicitor's Office. The applicant's submissions in support of his application are dealt with as they appear under each heading in his application. The submissions often do not correspond to the headings under which they appear.

56 The applicant's first submission is that the NSW Police did not conduct an independent investigation, but uncritically adopted the investigation by the bank contained in the record of interview with the applicant on 8 September 2003. In support of this submission, the applicant cites a CBA Fraud File Report in which Mr Van Beurden states: "Investigating Police from Tweed Heads will attend Group Security on 29/09/03 and will accept our formal complaint regarding Mr Higgins' processing of the cheque." This aspect of the applicant's grievance was addressed by Hoeben J in the applicant's appeal to the CCA (at par 39): "What is decisive in my opinion is the adoption by the appellant of the bank interview when he was interviewed by the police on 18 November 2003. On that occasion the appellant was given a full caution. He spoke to his solicitor before participating in the police interview. In the course of that interview he suggested to the interviewing officers that there was no point in them asking him further questions about how Mrs Loder's cheque was dealt with since he had already been comprehensively questioned on that subject by the bank investigators. He told the interviewing police officers that he accepted that the interview with the bank was correct and he did not wish to alter the content. The interviewing officers gave him the opportunity of re-reading his bank interview and again he adopted it as accurate." 57 The applicant next takes issue with the fact that he was never fully questioned about his investments outside the CBA. To the extent that these matters are material to the question of enrichment, it is my view that they were sufficiently addressed in the CBA record of interview and summarised in a report compiled by Mr Van Beurden, dated 11 September 2003. They were the subject of evidence at trial. It was for the applicant to fully instruct his counsel on all matter material to his defence. There is no suggestion that counsel was other than fully briefed and that he vigorously and ably conducted the applicant's trial. 58 The applicant submits that residents and staff at the retirement village were never fully questioned. For example, the applicant draws attention to the fact that people who may have escorted Mrs Loder from the retirement village to the funeral of her sister, Margaret Loder, at Tweed Heads on 3 October 2001, may have persuaded her to not go ahead with the investment. The applicant complains that these people were never questioned. The applicant also draws my attention to two named visitors received by Mrs Loder after the applicant collected the cheque from her on 2 October 2001. The applicant submits that these people were never questioned and that they may have assisted in supporting his contention that Mrs Loder changed her mind in relation to the investment after he attended on her. I am not persuaded that this has any material bearing on the application. The investigators are not charged with the responsibility of pursuing every conceivable avenue that may be productive of support for the defence case. The applicant does not explain what, if any, steps he took to make contact with the two named individuals or why he failed to make inquiries that he thought may advance his case.

59 The applicant submits that investigators did not conduct a thorough search of CBA bank records stored at Wacol Record Centre in Queensland. He submits that were a full and proper search to have been undertaken, the critical letter of instruction and his diarised notes of his communication with Mrs Loder and notes of his vetting of the personal details of the payees and/or any documents of identification, would or should have been found. An email sent by Cheryl Small to Barry Howe (Area Manager), dated 18 July 2003 states that, "I have checked files (there doesn't appear to be the full year in the box) and requested Wacol to check some other boxes we sent in June but we have been unable to locate any information other than a letter from a solicitor advising us of the death of one of the beneficiaries." This email was tendered by the applicant's counsel at trial and became Exhibit 5.

60 The applicant submits that investigators did not intend to conduct a thorough search of CBA records held at Wacol Record Centre in Queensland. This is supported by an email sent by Julie Benfer (Group Investigations of CBA) to Barry Howe (Area Manager of CBA) dated 18 September 2001 in which it is stated: "It is not our intention to do a search of Wacol however you may have some ideas of what else should be covered or reviewed to try and locate this file." Another email sent by Angelique Rodway to William van Beurden dated 13 October 2003 states that, "To search the 51 boxes held at Wacol will cost $45 per hour". The applicant submits that this search was not conducted.

61 If there was a failure by investigating authorities to conduct a full and proper search for documentary evidence that is regrettable but, in my view, not fatal to the Crown's case. Neither does it raise doubts or questions as to the conviction. The Crown's case was that there never were documents of the kind the applicant contends. Furthermore, the jury were entitled to give little weight to this aspect of the defence case in circumstances where the accused's account of his conduct in dealing with the unidentified person who first produced the endorsed cheque for processing with the letter of instruction and then later his dealings with each of the eight payees was, at the very least, irregular and his explanations unpersuasive. 62 The applicant also complains that the search for the payees of the eight bank cheques was inadequate. In his letter to Mr Bruce Barbour (NSW Ombudsman), the applicant states that a concerted investigation for the payees would have included searches of the electoral roll, Centrelink records, RTA records, Medicare records, Australian Tax Office records, on-line telephone records, Terranora Valley Nursing Home records and "family searches". The evidence of Detective Don Townley: "Q. Did you make general inquiries as to the existence of M Smidts? A. Just through the phone book for that area, the Tweed Gold Coast phone book, yes. Q. And were you able to locate any in the phone book? A. None with the exact spelling Smidt I don't believe. Q. And you did speak to a Marlene Smidt? A. Yes I did. Q. And she had the spelling Smidt is that so? A. Yes she did." 63 The applicant submits that there are several listings in phone books for the name "Smidt". In his application the applicant included copies from various white pages sources: Lismore District (36 listings); Gold Coast (two listings in 2002/2003 and three listings in 2003/2004). Copies were also included for listings of the surname "Loder". This, however, ignores the fact that persons with the same surname and initial of the payees and who were known or affiliated with Mrs Loder were called at trial. They all denied receiving a cheque. 64 The applicant also takes issue with the fact that investigators did not question Craig Turner, described by the applicant as the most experienced teller involved in the cheque transactions. I note that Mr Turner was only responsible for cashing the A Bennett cheque, which the Crown confirmed by reference to BTS document (Exhibit AAA). It is not at all clear what evidence Mr Turner might have given that would advance the applicant's case since it is his case that he dealt with each of the payees in the way I have described, a feature of the case which renders the Crown case strong to the point of overwhelming. Not only did the payees all want their cheques cashed (as distinct from the cheques being deposited to their accounts) but they each approached the applicant directly, seemingly by pre-arrangement, rather than presenting at a teller, in circumstances where it is unclear how they would have known that authorisation from the Branch Manager was required. In each case the applicant authorised the cheques to be cashed without knowing the payee previously. He claimed that he satisfied himself as to the identity of the payees but he could provide no details as to how he did this and neither his diary nor any notes were available. It was for this reason that none of the tellers were asked in cross-examination to try to recall the payee or even to confirm that the payee was referred by them to the applicant.

65 The final matter that the applicant draws attention to is the endorsement on the back of the B Hickey cheque. He contends that the signature seems to have been altered to look like "Higgins" rather than "Hickey" and that the cheque was not in this state during initial investigations performed by the CBA. It was the Crown case that the applicant mistakenly endorsed the cheque in his surname and that he has overwritten Hickey, both to disguise his mistake and to avoid the consequence of the cashing of the cheque having to be abandoned. 66 The investigators, Mr Van Beurden and Mr David Tuohey, conceded under cross-examination that they did not refer to the altered signature in the CBA record of interview. Parts of the transcript are reproduced below: Mr Van Beurden under cross-examination "Q. Sir, again please if you'd turn to page 81 of the interview, question 606, now is this your question? A. Yes. Q. This question is again a question in relation to exhibit X, is it not? A. Yes. Q. And to the endorsement on the reverse of the cheque? A. Yes Q. You say to him "Because that writing is quite clear even over the carbonised area"? A. Question 606. Q. Yes? A. Yep, yes." Mr David Tuohey under cross-examination "Q. Now please have a look at question 606, you'll note that there Mr Van Beurden indicates "That writing is quite clear even over the carbonised area". Now Mr Van Beurden appears to be specifically directing Mr Higgins' attention to the cheque and the signature? A. Yes Q. He describes the writing as "quite clear' doesn't he? A. Yes. Q. Is that a description which you would attach to the signature on the reverse as shown in exhibit X? A. Well the writing itself is clear in terms of the ink taking up on the paper but the signature itself obviously looks confused. Q. Did you notice that at the time? A. I don't recall seeing the cheque during the interview."

67 Not only was this issue fully argued at trial by counsel for the applicant (doubtless acutely conscious of the Crown's reliance on it as adding considerable weight to the Crown case) but the matter was also dealt with in the applicant's own evidence. He went so far as to imply that the cheque had been altered by the Crown Prosecutor or someone in the Crown's employ to corruptly advance the Crown case against him. He claimed that when a Mr B Hickey presented with the cheque for payment in October 2001, the signature compared with documents bearing his signature and thereby qualified as proof of identity. This issue was the subject of quite intense questioning. The jury ultimately had their attention drawn to the fact that the overwritten signature appeared on a photocopy of the cheque in March 2003, some months before the bank interview. 68 I am not satisfied that any of these matters, whether alone or in combination, raise a doubt or question as to the applicant's guilt or leave me with any sense of disquiet as to the appropriateness of the verdict. Inaccurate and inconsistent evidence produced at trial

69 The applicant submits that several initial witnesses who were called at trial gave inaccurate and inconsistent evidence. At the outset it should be emphasised that the purported inaccuracies or inconsistencies in the evidence of the critical witnesses were dealt with at trial by defence counsel both in his cross-examination of crown witnesses and in his address to the jury. Moreover, it was not submitted on appeal that these matters were such as to render the verdict unsafe or unsatisfactory.

70 The evidence of Ann Kirkman was scrutinised and heavily criticised by the applicant. Ms Kirkman was the bank teller who cashed the B Hickey bank cheque. Later that day she recorded B Hickey's name as the purchaser of a bank cheque that the applicant says he purchased in favour of Dicksons Ltd. The transcript reads as follows: "Q. I'd suggest to you it's possible you've incorrectly recorded the name Bob Hickey as the purchaser of the $8,000 bank cheque? A. Yeah again I don't remember the transaction, it's possible but I don't think I would've because I would've written a number, a staff number if it was different." 71 In her evidence, Ms Kirkman accepted that telling errors do occur. The applicant's case was that a B Hickey cashed a bank cheque for $8600 and the applicant purchased a bank cheque in favour of Dicksons Ltd for $8000. The Crown's case was that the applicant cashed the bank cheque for $8600 and used these funds to purchase a bank cheque in favour of Dicksons Ltd for $8000. Having regard to all the evidence in the trial, including the applicant's evidence and his cross-examination, the jury were entitled to prefer the evidence of the bank teller and to reject the applicant's version. In my view, this transaction is compelling evidence of the applicant's guilt.

72 The applicant also criticises the evidence of Mrs Marlene Smidt. The applicant submits that Mrs Smidt falsely stated in her evidence that she had a falling out with Mrs Loder a few months before she died over a missing "nightie". Mrs Hawkey gave evidence that the falling out was two months after Mrs Loder had moved into the nursing home in 1999. The applicant submits that this is relevant since the Marlene Smidt who was called at trial is unlikely to have received a cheque from Mrs Loder in circumstances where the two had had a falling out before 3 October 2001 when, he contends, Mrs Loder made a list of beneficiaries to the cheque. The applicant's case is that there may be another M Smidt who received the bank cheque.

73 The applicant complains that bank statements confirming that his mother gave him $25,000 and a solicitor's letter confirming the source of the funds were never produced. Mrs Higgins was in fact called at trial and gave evidence. Her letter was tendered as Exhibit 6.

Fresh evidence 74 The applicant submits that since the conclusion of the trial, fresh evidence has emerged. Most of these issues have already been dealt with and include the fact that Craig Turner, the Zwemmers and people present at Mrs Loder's funeral were never questioned.

75 The applicant further submits that the print media described the person who presented the cheque as the "mystery woman" and that details were provided to police. He complains that these details were never adduced as evidence at trial. It is difficult to see the basis for the press reporting the gender of the "mysterious" third person since, on the evidence, the only person to have had any dealings with this person was the applicant and he could not recall whether the person was a man or a woman. The applicant does not identify the source of his belief that her details were known to the police.

76 The applicant also complains that telephone records of reverse charge phone calls on the CBA Tweed City Branch of Doreen Loder's phone lines were never obtained. This is, in my view, an effort to deal with the fact that there was no record of Mrs Loder having telephoned the bank on 3 October 2001 wherein he said that her instructions were countermanded. I am not persuaded that the absence of these records is material.

77 The applicant submits that further tests are able to be made on the suspect signature found on the reverse side of the B Hickey cheque. The applicant believes that the signature is not in the same state now as it was on 16 October 2001 when he had authorised the cheque to be cashed. This has already been referred to and the assertion that further tests are possible is unsupported by detail. The handwriting evidence was professionally presented by the Crown at trial and the subject of cross-examination. I note again the significance of this evidence in the Crown case.

78 The applicant submits that records may be obtained from Wacol Record Centre in Queensland that would indicate which documents have been checked by investigators. This has also been referred to. I simply note, by way of observation, that it was open to the applicant to issue subpoenas for production of this material at trial. The fact that this was not done is not explained. Determination of the application

79 The determinative question in this application is whether, having regard to the criticism the applicant makes of the investigation by the CBA and NSW Police and other matters outlined above, there is any doubt or question as to the applicant's guilt. In my view, the strength of the Crown case ameliorates any suggestions that the manner in which the investigation was conducted was defective. In any event, I am not satisfied that these complaints have any substance.

80 The evidence at trial establishes beyond reasonable doubt that the applicant was in the optimum position to fraudulently endorse Mrs Loder's bank cheque and to negotiate it by instructing a bank officer to draw the eight cheques and provide the remainder in cash. The circumstances surrounding the cashing of each bank cheque have already been outlined and provide ample further support for the jury's verdict.

81 The strength of the Crown's circumstantial case against the applicant was considerable. I do not entertain any doubts or questions as to the applicant's guilt.

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