PAGE v R

Court of Criminal Appeal (NSW)|2007-04-12|Before: McClellan CJ, Howie J, Hall J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 72; Hall J at 73

DECISION: 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted but appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Conviction and sentence appeal - conspiracy to defraud spanning 5 years - identification evidence - elderly victim living alone - whether indictment was flawed for latent duplicity - whether prosecution failed to distinguish between primary conspiracy and consequential conspiracies - whether directions on the elements of the offence were adequate - whether jury verdict unreasonable - sentencing - whether error in failing to exclude the alternate basis for conviction prior to determining culpability - whether error in taking into account overt acts of conspiracy

Cheung v The Queen (2001) 209 CLR 1 CASES CITED: R v Hoar (1981) 148 CLR 32 R v Mok (1987) 27 A Crim R 438 Olbrich v The Queen (1999) 199 CLR 270

PARTIES: Joseph Nathan Page (Appl) The Crown

COUNSEL: G Bashir (Appl) J A Girdham (Crown)

SOLICITORS: Hanby & Associates (Appl) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/2731

McCLELLAN CJ at CL HOWIE J HALL J

THURSDAY 21 JUNE 2007 PAGE, Joseph Nathan v R Judgment 1 McCLELLAN CJ at CL: The appellant was tried on an indictment which charged that: "Between on or about 10 December 1998 and 20 January 2004 at Balgowlah and elsewhere in the State of NSW, did conspire with an unknown person or persons to cheat and defraud Cynthia Lea Holcombe of sums of money." 2 The indictment contained only one count being the common law offence. 3 Following his conviction the appellant was sentenced to a non-parole period of imprisonment for 2 years and 6 months (less 5 days) with an overall term of 5 years imprisonment less 5 days. He appeals his conviction and seeks leave to appeal his sentence.

The outline of the case 4 The facts which the Crown alleged comprised the conspiracy are unusual. In her opening the Crown Prosecutor told the jury that the Crown case was that there was an agreement between the appellant and others to defraud Ms Holcombe of money. The ruse was alleged to involve persuading Ms Holcombe that, in order to receive a payment from the conspirators, she would have to pay them money. 5 Ms Holcombe gave evidence that in about 1999 a man, aged about 60 years, came to her home alone and said that he could repair her roof. He said that he had been working next door and had noticed that her roof had a hole in it. He later returned and told Ms Holcombe that he had completed the task. He said that his charge was $10,000. Ms Holcombe cashed a cheque with her bank for this sum and paid the man the $10,000. She said that she never saw this man again. 6 After quite a time had passed Ms Holcombe said that the first man's offsider, who she believed to be about 20 years old, came to her home and told her that she had been overcharged for the roof repair and that they had a refund cheque for her. She said that she did not see this man again. About a month later, a man, who Ms Holcombe said called himself George, rang her and said that there was a cheque for her and that he would get it and pay her. However, he said that he required $10,000 in cash in $100 notes in order to be able to obtain the cheque. 7 Later, a person who called himself Tony came to her house. She said that he was clean shaven and aged in his thirties. She said he was of medium height and slight build. He told her that he was going to help her get the cheque back. She made arrangements to meet Tony the next day at the fountain on The Corso in Manly. As requested by Tony she took with her $10,000 in cash which she gave to Tony because "George said (it was necessary) to, keep the cheque alive." The appellant denied that he was this person called Tony. 8 Ms Holcombe said she met Tony on many occasions and gave him money. They may have met on nearly forty occasions. She also believed that on four occasions she gave money to another man called Paul. She also met Paul at the fountain. She said that Paul was clean shaven in his thirties, rather fat and of medium height. 9 Ms Holcombe said she met with Tony over a period of about five years and believed she had given him about $200,000 "to keep the cheque alive." The bank records tendered at the trial indicated that she may have lost in excess of $400,000 although not all the money may have been given to Tony. 10 On 17 April 2003 Ms Holcombe met a man called Tony, who was undoubtedly the appellant, when he gave her a cheque for $36,000 which he told her she could bank. She banked the cheque, which was initially cleared, but the entry was later reversed by the bank when the cheque was dishonoured. When she met with the appellant on this occasion he was not clean shaven but had a goatee beard. She was told either by the appellant or George, she was unsure, that after she had banked the cheque she was to repay $27,000 but could keep the other $9,000. 11 After the cheque was dishonoured Ms Holcombe was contacted by a person called Steve Karma. She had not heard from him before. He told her that he had a cheque for $260,000 for her but she would first have to give him $10,000. She told him she did not have this money. She gave evidence that she later heard from Tony who asked her for $10,000 for interest on the cheque but she said she did not have that money either. 12 At about this time the police became involved and telephone intercepts were put in place. The record of various conversations between Ms Holcombe and the appellant was tendered in evidence. The appellant did not dispute that he met Ms Holcombe at The Corso on 17 April 2003 and gave her a cheque for $36,000. He also accepted that he was the Tony who was recorded on the telephone intercepts. However, he maintained that he was not the same person as the person calling himself Tony before that time. He said that he had always worn a beard or "chinny" and was not clean shaven as Ms Holcombe recalled the person whom she had met on the earlier occasions, and called himself Tony, had been. 13 Ms Holcombe was able to identify the appellant's voice on the tapes of the telephone calls that were played to her. She also identified the appellant in an identification parade and recognised him from a photograph. She said that she had a particular memory of his eyes. She asserted in her evidence on a number of occasions that whether or not he was clean shaven or had a beard, the appellant was the man Tony whom she met and spoke with at various times throughout this extraordinary sequence of events. 14 There were a number of inconsistencies in Ms Holcombe's evidence. She had difficulty remembering with clarity the number of times she met and paid over money. She was also unsure about the accent of some of the persons she dealt with. She also accepted that there were inconsistencies in her account given to the police and some of the evidence which she gave at the trial. Nevertheless she was certain that the appellant was the man Tony whom she had dealt with and to whom she had paid money on many occasions. She said that George was the person who had made arrangements with her as to how much would be paid and kept telling her that she would be receiving money. However, she said it was Tony who would come and meet her and take the money. She said that he rang in advance in order to organise a time to meet and make the payments. 15 The appellant's evidence was that he had always acted under the directions of George who he said owed him money. His explanation for taking the $36,000 cheque to Ms Holcombe was that George had said that the $2,000 which George owed the appellant would come from the $36,000 cheque which he gave to Ms Holcombe and from which Ms Holcombe was to repay $27,000. He said that George arranged the meeting with Ms Holcombe and told him what to say. He said that George directed him to call himself Tony and told him what to say in each of his telephone calls with Ms Holcombe. He said that he was not aware of and was not party to any conspiracy. He said he had always worn a "chinny" or a goatee beard until he shaved it off at the commencement of the proceedings. He denied any contact with Ms Holcombe prior to their meeting on 17 April 2003. His case was that there must have been two Tonys involved - one who was clean shaven (not the appellant) and the appellant who had always had a goatee beard. 16 The appellant advances four grounds of appeal. 17 It is convenient to deal with the first two grounds together.

Ground 1: There has been a miscarriage of justice as the learned trial judge left to the jury an alternate basis for conviction which had not been the subject of separate charge and not relied upon by the Crown prior to the close of evidence.

Ground 2: the indictment was flawed for latent duplicity and as a result trial proceedings were fundamentally flawed and miscarried. 18 As I have indicated the Crown case at trial alleged that the appellant was the person Tony who had been involved in the conspiracy for a significant period extending well before the meeting of 17 April 2003. The appellant gave evidence and when he was being cross-examined his counsel raised an issue in respect of the line of questioning which the prosecutor was pursuing in relation to the cheque given to Ms Holcombe on 17 April 2003. The cheque was made out on the account of an elderly couple from South Australia who had signed it. The details on the cheque were filled out by another hand. Defence counsel questioned whether the Crown was alleging a separate conspiracy in relation to the cheque. In response, his Honour said that he understood that the Crown alleged only a single, but protracted, conspiracy to extract money from Ms Holcombe. 19 On the following day and after the appellant had ceased giving evidence there was further discussion about the nature of the Crown case. That discussion was resolved when his Honour suggested that an alternate approach to the Crown case was that, although the appellant was only actually involved in the fraud from the time of the meeting on 17 April 2003, he became involved with knowledge of the total conspiracy. The events of 17 April 2003 and those which followed, particularly the telephone calls were part of the total conspiracy which had commenced almost five years previously and by becoming involved, as he did, the appellant made himself part of the conspiracy. 20 In her closing address the Crown Prosecutor summarised the Crown case. She put to the jury that the appellant was the man Tony who had participated throughout the total fraud the handing over of the cheque on 17 April 2003 being the last of the financial dealings between Ms Holcombe and the conspirators. Of the cheque handed over on 17 April 2003 she said: "The Crown says that cheque that was handed to her was an act of deception. Deceiving her into believing that this was the cheque that she had been waiting for for quite a long time, and she tells you that it was part payment for the money she had put into the cheque … they were attempting to practice [sic] this deception on her to extract more money from her. She believed that the $36,000 was part payment but she was only allowed to keep the $9,000." 21 The Crown Prosecutor later told the jury that, if they thought Ms Holcombe was mistaken about the appellant being involved from beginning to end, that "he was just as guilty" if he joined the conspiracy later on. 22 In the course of his summing up the trial judge, having discussed the alleged conspiracy in general terms, said: "… But, as I am sure you will understand, the crucial question in this case is not any of those to which the answers are relatively easy but the one I am quite sure you will find much more difficult, and that is: was the accused one of the two or more persons who were party to this conspiracy? That is the absolute crux of the case.

If you had George or even Paul, or if there was absolutely no difficulty in identifying the man called Tony who collected the money over the period from November 1998 up until January 2003, your task will be relatively straight forward, but you have the accused. You have the accused, and I will come back to what the accused has had to say later, but you have a case where the Crown has been, in effect, put on notice that the Crown is going to have to prove beyond reasonable doubt that the man called Tony, who first introduced himself back in the latter part of 1998 … as the person sent by George, was the accused, or, alternatively, and I will attempt to explain this as best I can, because this is a very important aspect of the Crown case which I want to be sure you clearly understand, even if there were two Tonys, or even if you have sufficient doubt to leave that possibility open, the Crown case is that you might still properly find the accused guilty.

Before I elaborate on that, let me just go back over the Crown case which must be proved. Either you must in the end be satisfied beyond reasonable doubt that the man calling himself Tony, who has been sometimes briefly described as the 'clean shaven' Tony, who attended, by prior arrangement, on up to thirty-eight and possibly more occasions over the time in question and collected sums of money from Ms Holcombe on almost every occasion at the fountain in the The Corso in Manly, is the accused. If you are satisfied beyond reasonable doubt of that, then the Crown has succeeded in associating the accused in the necessary way with the conspiracy of which he has been charged, but, as I said a moment ago, the Crown has taken an alternative position. The Crown has anticipated the possibility that you may in the end not be satisfied beyond reasonable doubt that the accused was the unbearded Tony, the clean shaven Tony, but what you do know on the evidence is that, and this is on the accused's own admission, that he was the voice at the end of the telephone during the course of those conversations in April and May 2003 which were intercepted by the police. The Crown case is that the only possible interpretation you could place on those conversations, having listened to them very carefully, and having listened very carefully to exactly what was said by the accused in the course of those conversations, and the manner in which he said it, that those were words and those were things said that could only have been a consequence of someone saying those words already being sufficiently aware of what had earlier happened to have, in effect, become a part of the conspiracy. In other words, what the Crown is saying to you in the alternative is that even if you dissociate the two Tonys, and in a sense which I think you understand because of the way in which those descriptions have been used, and you only accept the accused's involvement from the time he met Ms Holcombe on 17 April 2003 at The Corso and handed her the cheque for $36,000, that although the evidence only associates him with Ms Holcombe from that point on, that the evidence you have would still persuade you beyond reasonable doubt that he could only have been so involved, and he could only have said what he said on the telephone if he had been engaged in the conspiracy, that is, that he knew what was underlying the delivery of the $36,000 cheque. He knew that this was a continuation of the history that goes back to late 1998 and that this was part of, if you like, a further act of reassurance to keep Ms Holcombe's hopes alive, that she was going to get her money and he was now playing his part in that act of fraud. But please in this respect remember the task the Crown has, and that is to satisfy you beyond reasonable doubt of that level of involvement." 23 The problem which the appellant suggests to have occurred in his trial arose only after he had given evidence. As I have indicated the Crown opened the case on the basis that the appellant was involved in the conspiracy throughout. The appellant's counsel in opening said that the appellant's role was confined to the events of 17 April 2003 and the telephone calls thereafter. When, after the appellant had given evidence, the question of the precise manner in which the case was to be left to the jury was raised, counsel for the appellant suggested that the events of 17 April 2003, if they involved a breach of the law, constituted a second conspiracy so that if left to the jury there would be two conspiracies as possible bases for conviction. It was submitted that accordingly, the trial had miscarried and unfairness had resulted from the fact that the conspiracy had not been properly defined, the co-conspirators unknown and relevant sums of money not properly particularised. 24 I am satisfied that this is not the correct way of understanding those events. Prior to April 2003 Ms Holcombe had been defrauded of large sums of money with the promise that she would ultimately have them repaid. The cheque she was given on 17 April 2003 was proffered as a part repayment of those monies and was designed to further the deception at the heart of the conspiracy. The transaction on 17 April 2003 would have brought some benefit to Ms Holcombe if the cheque had been honoured - she would receive $9,000 of the monies owed to her - but the conspirators intended to maintain the ruse through Ms Holcombe and receive from the cheque the additional $27,000. 25 There were concerns at the trial about whether, by reason of the fact that the cheque was made on the account of two persons who had signed the cheque but not completed the details on it, the cheque itself may have been procured by an illegal act. During the course of his Honour's summing up counsel for the appellant raised this matter in relation to the use of the cheque and asked the trial judge "to make it clear to the jury that there is no suggestion that that in itself was an illegal activity and it has been used by the Crown to show that Mr Page had the knowledge of the previous dealings and had joined the agreement or words something to that effect." 26 In response to this request his Honour said to the jury: "As to the $36,000 cheque, I have just been reminded that it is important, although I did not say anything to the contrary, that you do not again speculate or draw any inappropriate conclusions about the relevance of this $36,000 cheque. The question for example, of whether it was a forgery or whether there was any other impropriety or illegality associated with the drawing of that cheque has absolutely no bearing on this case. If there was any element of fraud involved in that cheque, it was a fraud on the Chamberlains, whose account it was, not on Ms Holcombe. The only relevance of the cheque is that, as the Crown would have you accept, it was instrumental in and part of the bigger picture in which the accused was involved. Whether it was the bigger picture, that is the picture that goes back to the very start of the collection of money fraudulently obtained from Ms Holcombe or the narrower picture of an involvement that actually started in terms of any active involvement on the part of the accused when he delivered that cheque, that is the only relevance of that cheque, that it was an instrument in that process. Any other aspect of it that might have generated some speculation in your mind, particularly in the view of the evidence of the Detective from South Australia, Detective Vagg was it, in the end proved to be of no consequential relevance as far as this case is concerned." 27 It is important to remember that the Crown case was not confined to the events by which Ms Holcombe was given the cheque for $36,000 with the understanding of repayment. The events of 17 April 2003 commenced a sequence of events which included a series of phone calls with Ms Holcombe. The appellant admits that he was the caller. The transcript of the phone calls is too lengthy to include in these reasons. I have both listened to the calls and reviewed the transcript. The phone calls are of considerable significance. They reveal a knowledge by the appellant of Ms Holcombe's movements, earlier dealings with the conspirators and the requirements of her bank. Some extracts from the conversations are:

Call 3 - 29 April 2003: the appellant said "cos normally your bank you have got to wait a couple of days?"

Call 3 - 29 April 2003: the appellant said "well, I suppose if you keep it, its part of your money back, isn't it?"

Call 7 - 1 May 2003: the appellant said "see at the moment, Cynthia, I am up at your shopping centre at Woolworths."

Call 8 - 1 May 2003: the appellant said "we will have to start afresh again on some other day, try and work this out." 28 On the hearing of the appeal the appellant's counsel submitted that in order to establish the charge the Crown needed to prove that the appellant had agreed to defraud Ms Holcombe of sums of money. It was further submitted that on what was said to be the alternative case Ms Holcombe had not been defrauded. To the contrary it was submitted that she had been given a cheque with the intent that she would keep a substantial portion of the monies. 29 In my view this submission misunderstands the Crown case and the manner in which the case was left to the jury. The Crown never suggested that the events of 17 April 2003 and thereafter constituted a separate conspiracy. Rather those events were said to be in furtherance of the conspiracy which had been occurring over the preceding years. The Crown asked that the case be left with the jury on the basis that if they were not satisfied that the appellant had been involved in the conspiracy throughout they could be satisfied that the appellant knew that his actions on 17 April 2003 and thereafter were in furtherance of the conspiracy. 30 Counsel submitted that by allowing the matter to be left with the jury on this "alternative basis" the appellant had been prejudiced. The particular prejudice identified was said to have arisen from the fact that the appellant had chosen to give evidence. It was said that that decision was made with the knowledge that the Crown was intending to allege that the appellant had been involved in the conspiracy throughout. It was submitted that a different decision may have been made if it had been known that the Crown would submit that the conspiracy would be proved against the appellant even if he only joined it from 17 April 2003. 31 A submission to this effect was not made by counsel at the trial. Although opposition was expressed to the case being left to the jury on the confined basis, it was never submitted that the alteration in the Crown's position had caused prejudice by reason of the fact that the appellant had been called to give evidence. This is understandable. For my part, whether or not the Crown sought to prove the appellant's involvement in the whole conspiracy, or, only part of it could not have affected any decision as to whether he would be called to give evidence. The appellant admitted that he had done the later acts but denied knowledge of the conspiracy at that time. He denied any involvement before that time. 32 It is important to appreciate that following discussion of the matter and before counsel addressed the jury, his Honour ruled that the Crown could submit to the jury that the appellant's involvement in the later events was sufficient to convict him. His Honour also made plain that, if, following final addresses and before his Honour summed up, difficulties remained, his Honour would consider any further application. No application was made that the jury should be discharged and it was not suggested that by reason of the fact that the appellant had given evidence the trial had miscarried. 33 In this Court it was suggested that the evidence revealed latent duplicity in the Crown case. I have already considered the appellant's submissions that the Crown alleged two conspiracies. However, that submission was the foundation for a submission that the trial was unfair. It was submitted that: "The unfairness resulted from the scope of the conspiracy not being properly defined, with the co-conspirators unknown, the sums of money not properly particularised and the dates of the conspiracy spanning over a five year period, even on the alternative case. Fraudulent acts relied upon in the period prior to Ms Holcombe meeting with the appellant on 17 April 2003, namely Ms Holcombe handing over her money was distinctly different from the giving of the cheque at the April meeting. The breadth of the indictment was such that the prosecution failed to distinguish between the primary conspiracy to defraud Ms Holcombe of sums of money and consequential conspiracies to effect other particular frauds." 34 The appellant relied upon the decision of this Court in R v Mok (1987) 27 A Crim R 438. In that case the appellant had been charged with conspiracy to supply a quantity of heroin. He was charged jointly with one other and the conspiracy charged against him was tried together with a charge against a third person of importing the relevant heroin. Mok was convicted but the other two were acquitted. 35 The indictment pleaded the conspiracy as one between the appellant, a named person, Sam and other persons. The way in which the Crown case was ultimately put to the jury by the trial judge was that the conspiracy to supply was one between the appellant, a person by the name of Uncle Hung and the person Sam. It was submitted, and this court accepted that the way the conspiracy was ultimately left to the jury was not how the case was opened by the Crown Prosecutor. The conspiracy which was opened was one between the appellant and Sam only and was confined to facts falling within a narrower compass. 36 It was only during the early part of the trial judge's directions to the jury that it was determined that the jury would be informed that the conspiracy which they were required to consider was one which extended to involve Uncle Hung. In these circumstances this Court held that the trial had been fought without the accused being fully apprised of the Crown case, the overt acts which constituted the conspiracy and the legal nature of the charge against him and the particular act, matter or thing alleged as the foundation of the charge. 37 Hunt J said at p 441-442: "In a conspiracy case, each accused is entitled to precise particulars of the persons with whom it is going to be alleged that he conspired and as to the specific scope of the conspiracy alleged.

[the Crown Prosecutor is] not entitled simply to open the overt acts of which particulars which have been given, leaving it to the end of the evidence to select from that evidence the conspiracy which seems to be the strongest. The trial judge and the accused are left in an impossible position if the precise nature of the Crown case is not made clear from the beginning of the trial." 38 Counsel for the appellant submitted that the present case was similar to Mok. I am satisfied that this submission cannot be accepted. In the present case the conspiracy alleged by the Crown was one continuing over many years, involving a number of people, by which Ms Holcombe was defrauded on many occasions of a very significant total sum of money. The Crown opened on the basis that the appellant, who was known to Ms Holcombe as Tony, had been involved in the conspiracy throughout. The defence case was that the appellant knew nothing of the conspiracy and, although he admitted the events of 17 April 2003 and the sequence of telephone calls which followed, he was not aware of the conspiracy and had played no part in it. To this proposition the Crown responded by submitting that even if the jury was not satisfied that the appellant had been involved before 17 April 2003, they should conclude that from that day he became involved with knowledge of the events which had previously led to Ms Holcombe being defrauded. Unlike Mok the Crown did not allege a different conspiracy, merely that the jury could find the appellant to have either been involved throughout or to have joined it at the later date. 39 In my opinion both grounds of appeal 1 and 2 fail.

Ground 3: The trial miscarried as a result of the directions to the jury on the elements of the offence of conspiracy to defraud on the case as left in the alternative being incorrect, inadequate or both. 40 The trial judge directed the jury that the fraud was evidenced by the false pretences to Ms Holcombe by which she was persuaded to part with her money. His Honour told the jury that this pretence was "that as long as she continued to make the payments she was requested to make, there would be an ultimate resolution by way of repayment in the form of the cheque which was continually held out to her as coming sometime in the future." 41 The appellant's submission with respect to ground 3 again focussed on what was said to be the "alternative case" left to the jury which was described by the appellant in the following terms: "The alternative case was then left as 'a very important aspect of the Crown case' and the jury directed that 'even if there were two Tonys, or even if you have sufficient doubt to leave that possibility open, you might still properly find the accused guilty.' The case against the appellant in this respect was then described as relying on the phone calls, the appellant must have been 'already sufficiently aware of what had earlier happened to have, in effect, become part of the conspiracy.' The case was then put as '… even if you disassociate the two Tonys … and you accept only the accused's involvement from the time he met Ms Holcombe on 17 April 2003 at The Corso and handed her over the cheque for $36,000, that although the evidence only associates him with Ms Holcombe from that point on, that the evidence you have would still persuade you beyond reasonable doubt that he could only have been so involved, and he could only have said what he said on the telephone, if he had been engaged in the conspiracy, that is, that he knew what was underlying the delivery of the $36,000 cheque. He knew that this was a continuation of the history that goes back to late 1998 and that was part of, if you like, a further act of reassurance to keep Ms Holcombe's hopes alive, that she was going to get her money and he was now playing his part in that act of fraud." 42 The appellant submitted that there was a difficulty in leaving the case to the jury in this manner. That difficulty was said to be that giving Ms Holcombe a cheque for $36,000, with the intention that she retain $9,000 for herself, "was not a dishonest means to obtain her money. Dishonest means to obtain the money from the Chamberlains was not the subject of the charge. This opened the way for the conviction of the appellant on the alternative case of a conspiracy based on knowledge that a prior conspiracy had occurred and an act that could not have been in furtherance of that conspiracy as it was neither dishonest means nor dishonest means to obtain sums of money from her." 43 The appellant's submission is based upon the misconception of the Crown case to which I have already referred. The Crown did not allege that the handing over of the cheque for $36,000 and the subsequent events were a separate conspiracy. Rather those actions, admittedly committed by the appellant, were said to be part of the overall conspiracy. The difficulties identified by the appellant did not arise. The trial judge made plain the basis upon which the handing over of the cheque and subsequent events could operate to convict the appellant of participating in the alleged conspiracy to defraud Ms Holcombe (see [22] above). It was never described as a separate conspiracy.

Ground 4: the verdict of the jury is unreasonable 44 Ms Holcombe gave evidence at the trial in which she said that although she had spoken to the man called George on the telephone her meetings were with men called Tony and Paul. She said that she had first met Tony after George had contacted her by telephone and told her that he was sending a man around to her place to give her the refund cheque but in order to get the cheque, she needed to give him $10,000 in $100 notes. She said that shortly thereafter a "young chap" appeared at her door and said that his name was Tony and that he had been sent by George. She described him as being in his thirties, Australian, medium height of slight build and clean shaven. 45 Ms Holcombe did not give the man the money that day but made arrangements to meet him at the fountain at Manly the following day where she gave the man named Tony $10,000. She said she did this "because George said to. To keep the cheque alive." 46 She gave evidence that she heard from Tony about twenty times about obtaining a refund. She said that "either he or George would ring me up." She said that she gave most of the money to Tony but also made four payments to Paul who was "clean shaven, in his thirties, rather fat, and medium height." 47 Ms Holcombe said that on the occasion when she received the cheque for $36,000 Tony had a goatee beard. She said that she had not seen him like that before. Nevertheless she said that she recognised the Tony with the goatee beard as being the same person as the clean shaven Tony she had previously dealt with. 48 The defence attacked Ms Holcombe's evidence in which she identified the appellant as the Tony to whom she had given money before 17 April 2003. The appellant's case was that he had always had a beard (although he had shaved it off for the trial) and accordingly, Ms Holcombe was mistaken in thinking that she had had dealings with the appellant before 17 April 2003. 49 His Honour took the jury to the relevant evidence in the summing up and said that he wished to say something about the question of facial hair. He then said: "It was a matter that was given a considerable amount of attention in the course of the evidence in both the evidence of Ms Holcombe and ultimately in the evidence of the accused. What I want to say about it is this. I do not propose, as I have already refrained from doing in the context of a number of other schedules which have been compiled with regard to other aspects of the case, take you painstakingly through date by date. Can I encourage you to examine, critically examine, the photographic evidence? You have a number of exhibits, showing photographs taken of the accused from time to time. As to those photographs taken from the early part of 2003, they are not likely to assist you a great deal because there is no real dispute about the fact that some time prior to May of 2003 and indeed prior to April 2003, and whatever else happened before that, the accused was wearing a beard of the kind described and continued to do so until he shaved it off, on his evidence for the purpose of appearing more neat and tidy in these proceedings. So there is no dispute about what he looked like in 2003. The crucial question is what did he look like from the end of 1998 until the beginning of that year, that is 2003. Was he clean shaven as Ms Holcombe would say, and has said, on all of the occasions he collected money from her, that is of course provided the connection is made that has to be made? The difficulty about it I would suggest to you, is, and this is really in the end what Mr King said and I do not understand the Crown to have suggested anything different, that the photographic evidence and any other history of what he looked like is not conclusive either way for the very reason as Mr King said 'we do not have a photograph of him every day from November 1998, or December 1998, until January 2003.' That would be the only conclusive evidence. Anything short of that leaves room for some doubt and of course the doubt becomes more and more pervasive the less we have. The one piece of evidence which I would suggest needs to be carefully scrutinised in this regard is the photograph in Exhibit EE, the photograph used for the purpose of acquiring a New South Wales Driver's licence at that time. I remind you that February of 2002 was a month, and I am not here getting down to the particular day but was a month in which one of the withdrawals was made and on which you might reasonably infer was passed on by way of a cash delivery to the man calling himself Tony. The accused when shown that photograph said that it looked to him as though there was a week to ten days growth. He certainly would not describe the person as clean shaven. Again I leave it to your judgment as to the degree of growth. I also ask you to look very carefully at the photograph in order to satisfy yourselves whether if there is facial growth overall or there is a sufficient differentiation between growth in the areas where the beard would normally appear and where it would not normally appear. That would be a relevant consideration to whether, even if the accused had not shaved for a while, he was still sporting a beard. But having said that, I would suggest to you that the only likely assistance that that evidence is going to provide is assistance going to the credit of the accused. That is, if, having looked at the photograph yourselves, you find it difficult to accept his assertion that the person in the photograph had a week to ten days growth. But it really does not take the evidence very far with regard to the Tony who appeared on these various occasions to collect money from Ms Holcombe, because it does not connect a clean shaven accused with any visit to the Corso. I will mention in that context one other photograph in the evidence and that is the photograph which was taken on 7 May 2001 and became Exhibit 5, the photograph at the wedding. That was one day before one of the withdrawals and deliveries of money. You are certainly entitled to ask yourselves whether it is likely that having sported a beard at the wedding, the accused shaved it off the next day to meet Ms Holcombe. The Crown would have you come to that conclusion. You will remember the Crown put to you that you are entitled to come to the conclusion if you are satisfied on the rest of the evidence that in fact it was a part of the deception in which the accused was directly involved that, irrespective of his usual habit and his customary appearance, to shave when he saw Ms Holcombe, so that he did in fact present as a demonstrably different looking person from the person he normally was. I suggest you might ask yourselves one question before you take that any further and that is, if that was the case why did he appear with the $36,000 cheque wearing the beard that he had so meticulously shaved off on every other occasion? You might say well that was because he wanted to look like a different Tony. I would suggest if you get to that stage that you are starting on guessing and speculation that I warned you against earlier in the judgment and what this brings me back to is this. The overall evidence with regard to the facial appearance of the accused over the years that is relevant to this case does support to a degree his evidence that that is what he always looked like. Just about all of the photographs were representative of what he looked like all the time and that would exclude the possibility that on thirty eight occasions he turned up clean shaven to collect money from Ms Holcombe. Again, without reiterating everything I have said, and I do remind you that you cannot take any specific observation I made in a vacuum, it is all in the broad context of all the evidence and if that evidence is sufficient to raise a reasonable doubt in your mind then I remind you that you again of where that leads you." 50 After his Honour had invited the jury to retire and consider its verdict Ms Holcombe's identification of the appellant was again discussed by his Honour with counsel. Counsel for the appellant drew his Honour's attention to the fact that when he cross-examined Ms Holcombe he said to her "you told the jury a little while ago when my friend asked you this question would you agree with him that the man that you spoke to leading up to you receiving the cheque that the man you spoke to and the man from whom you got the cheque were different and you said: "it is possible." Ms Holcombe had agreed that it was possible. 51 When his Honour was asked to give a further direction about this matter his Honour said "Well Mr King I think the best I can do is to remind them that you drew attention to these matters and that they are relevant, that they are to be considered as part of the careful scrutiny that I've already indicated they must undertake." Counsel indicated that he was content with that approach. 52 His Honour then gave further directions to the jury. Those directions included a reference to Ms Holcombe's evidence identifying the appellant. His Honour said: "The two other matters, touch upon matters that were addressed in Mr King's final address to you but about which I did not have anything specifically to say. I certainly do not want you for that reason to think that you should pay no attention to them. First of all the fact that apart from the evidence of Ms Holcombe, to which I did refer you, namely that when she was asked to put a figure on her level of certainty about the identification in photograph she put it at twenty per cent, there was other evidence she gave, for example, when a question was put to her whether it was possible there were two Tonys she said it was possible. The words she used at the very outset of the photo identification process were to the effect 'I am not sure about that one' and you remember she put photograph number eight aside. They are further indications of a measure of uncertainty and, as I have stressed over and over again, not only in the context of identification but also in the context of Ms Holcombe's evidence as a whole, are matters that along with all of her evidence you have to scrutinise and evaluate with particular care and attention.

Finally, the comment I made about the accent. You remember I suggested that the fact that Ms Holcombe, you might decide, was not very good at identifying or labelling accents did not necessarily mean that she could not identify a voice. I just want to remind you that part of the case put by Mr King was precisely that. Mr King's submission was that in fact her evidence, when you consider it overall, was sufficient to indicate that she was not very good at making a consistent voice identification even when you put the accent aside. That is a matter that you need to give particular attention to. What you decide about it is of course ultimately for you." 53 In these circumstances the question of whether or not Ms Holcombe's evidence could be relied upon to identify the appellant as being the Tony to whom she gave money was clearly raised. The jury were told that Ms Holcombe's account was crucial to the Crown case and that they should carefully scrutinise and evaluate her evidence. Furthermore, they were told that if her evidence was comprehensively unreliable the appellant must be acquitted. They were also told that each problem identified by Mr King had to be considered and discarded before they could convict. The jury were also given careful directions in relation to identification evidence which incorporated the usual caution. 54 I have myself viewed the photographic evidence and carefully considered the evidence of Ms Holcombe. If this was the only evidence implicating the appellant in the conspiracy I would not have been satisfied that the Crown had proved the charge. It would seem that the appellant not infrequently had a "goatee" beard and Ms Holcombe ultimately expressed a reservation as to whether the appellant had been involved throughout. 55 However, the events of 17 April 2003 and the telephone conversations which took place afterwards satisfy me that the appellant was party to the conspiracy. He used a false name Tony which, coincidentally is admitted to be the name used by one of the conspirators who had been involved throughout the conspiracy. The content of the calls and, in particular, those portions to which I have earlier referred leave me in no doubt that the appellant both knew Ms Holcombe and more importantly knew that his actions were part of an ongoing conspiracy to defraud her. His suggestion that the phone calls were made at George's instigation and that he was prompted by him throughout them is difficult to accept when the transcript is reviewed. It is impossible to believe when the tapes are reviewed. The conversation is spontaneous, the appellant speaking in a familiar manner, clearly giving the impression that he knew all about the previous dealings with Ms Holcombe including the expectation the conspirators had engendered in her that she would ultimately be repaid her money. 56 To my mind it was clearly open to the jury to be satisfied that these conversations were between two people who were quite familiar with each other, leading inevitably to the inference that it was the appellant with whom arrangements had been made and meetings held. 57 It is correct, as the appellant pointed out, that there were some inconsistencies in Ms Holcombe's evidence. This is not surprising. The events had occurred over a number of years. The appellant pointed to some inconsistencies between Ms Holcombe's account of the money she gave to Tony and her bank records. She was also unsure as to whether it was George or the appellant who had told her that $27,000 of the $36,000 cheque was to be repaid. There were also occasions when monies were paid on which the appellant was outside Australia. Ms Holcombe recalled the appellant as having an Australian accent when in fact his accent is English. 58 The appellant drew attention to the fact that Ms Holcombe said she was contacted at a later point in time by a person calling himself "Steve Karma" who also requested money following which Ms Holcombe said "Tony" contacted her and requested $10,000. It was submitted that this suggested the possibility of a further conspiracy which did not involve the appellant or George. It was submitted that if the jury were considering "the alternative case" and had rejected the "one Tony theory" it may be that the Tony who allegedly spoke to Ms Holcombe after George was "out of the picture and at a time when "Steve Karma was involved" was the appellant and not some other Tony." This submission suggests that there was a third Tony involved in defrauding Ms Holcombe. 59 To my mind, although these various matters leave some issues unresolved, it is not necessary to determine them to be satisfied of the appellant's guilt. The appellant's admission that he dealt with Ms Holcombe on 17 April 2003 and made the later phone calls and the content of those calls establishes his guilt to the requisite standard.

Application for leave to appeal against sentence 60 The appellant was sentenced to a non-parole period of 2 years and 6 months (less 5 days) with an overall term of 5 years. 61 The appellant advanced three grounds of appeal with respect to his sentence. It was firstly submitted that the trial judge erred in failing to exclude "the alternative basis for conviction prior to determining the applicant's culpability." It was further submitted that the sentencing discretion miscarried by virtue of the trial judge taking into account as overt acts of the conspiracy involving the applicant the amount of $397,500 to elevate the criminality of the applicant. 62 The appellant correctly identified the fact that the trial judge in his remarks on sentence did not refer to "the alternative case." His Honour found as in my view was inevitable, that the appellant had been involved in the conspiracy throughout. It was submitted that because the alternative case had been left to the jury "it was necessary for the learned judge to refer to, consider and exclude this as a reasonable possibility prior to finding adversely to the applicant on sentence." Cheung v The Queen (2001) 209 CLR 1; Olbrich v the Queen (1999) 199 CLR 270. Accordingly, it was submitted that by failing to proceed in this manner the sentencing discretion miscarried and this Court should resentence. 63 With respect to the second ground the applicant submitted that Ms Holcombe gave evidence that she could not recall the amounts she had given to Tony and Paul on around 24 occasions. The bank records in evidence refer to 42 separate withdrawals. Ms Holcombe believed that she had lost an amount of over $200,000. There was also evidence that the bank account continued to operate after January 2003 and that she was not "left with nothing" as the trial judge found. 64 The appellant submitted that he should be sentenced for his part in the agreement to defraud and not for the overt acts. It was submitted that there was no evidence that he had profited from those acts and that his Honour erred in so finding. Furthermore, it was submitted that "where a court, imposing a penalty for conspiracy takes into account the overt acts of the conspiracy, it would be wrong to impose a further penalty in respect of those acts": R v Hoar (1981) 148 CLR 32 at 38. 65 The appellant accepted that it was proper to take into account Ms Holcombe's vulnerability and that substantial financial losses had been inflicted upon her but submitted that it was an error to find that the full amount specified and the complete depletion of Ms Holcombe's finances had been proved beyond reasonable doubt. 66 Finally, the appellant submitted that the sentence was manifestly excessive. His counsel emphasised that the Crown had submitted to the trial judge that guidance as to the appropriate sentence could be obtained by reference to the offence of obtaining money by deception found in s 178BA of the Crimes Act 1900 (NSW) where the maximum penalty is imprisonment for 5 years. It was submitted that measured by this yardstick the sentence imposed on the appellant was manifestly excessive.

Decision on sentence 67 I have already indicated my view that if the evidence had been confined to Ms Holcombe's belief that it was the appellant who had on many occasions prior to 17 April 2003 taken money from her, the Crown may have had a difficult case. However, it was not so confined. Although the later events point unequivocally to the appellant's involvement at that time, they also confirm his knowledge of the whole conspiracy. In my opinion, although it was not proven that he was the architect of the conspiracy, his Honour was entitled to sentence him as being "a necessary and … significant part of the conspiracy." He was clearly at least one of the 'front men' even if it was not proven that he was the only 'front man'. 68 It was apparent at the trial that Ms Holcombe's memory for specific transactions had faded. This is not surprising. The evidence at the trial independent of Ms Holcombe supported a finding that she had lost $397,500. His Honour concluded that notwithstanding Ms Holcombe's difficulties the bank records speak for themselves. It was not the appellant's participation in the overt acts which attracted the criminal sanction but the conspiracy evidenced by the acts done in furtherance of the agreement. That matter was informed by the fact that a lady living on her own was tricked into giving up, if not the whole, a very large proportion of her savings. When evaluating the criminality of the offence, the fact that the deception was repeated on many occasions and the extent of the total monies lost were relevant. The trial judge was correct to consider the amount taken when determining the appropriate sentence. 69 In my opinion the crime committed by these conspirators was deserving of a significant term of imprisonment. This was not a crime of impulse or passion or an isolated incident of aberrant behaviour. Ms Holcombe was a vulnerable woman living on her own. She was callously exploited and her monies taken by a number of people in a most calculated manner. The appellant suggested that some assistance might be obtained from s 178BA of the Crimes Act 1900 (NSW). However, his Honour was not bound to use this section as a yardstick. The sentence imposed on the appellant was required not only to punish the appellant and deter him from similar conduct but importantly was required to send a message to others who might be considering acting in a similar manner. 70 In my opinion the sentence which his Honour imposed was completely justified.

Appeal against conviction dismissed. 2. Leave to appeal against sentence granted but the appeal dismissed. 72 HOWIE J: I agree with McClellan CJ at CL. 73 HALL J: I agree with McClellan CJ at CL. **********

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