R v Frolchenko [1998] QCA 43

Although such a course would have been inconvenient, the prosecution would, if necessary, have correctly been granted an adjournment to call witnesses from the Department to prove receipt of the document from the appellant's solicitor. Since that was understandably not required by the appellant's trial counsel, the argument advanced for the appellant before this Court seems to me without substance.

I also agree, for the reasons given by McPherson J.A., that the request for waiver of the fees payable in respect of the appeal record should be refused.

The appellant was found guilty at her trial in the District Court at Southport of one count of defrauding the Commonwealth. The circumstances of the offence were that the appellant was the principal of a college of education known as the Gold Coast Business Academy, which was owned by a corporation trading under that name, of which she and her husband were the directors and shareholders. The Academy offered various courses to students in a range of subjects designed to train them for employment in business and office work. Some but not all of the courses offered were "accredited" by the relevant Commonwealth Department as being eligible for Austudy grants or benefits.

Those benefits were available to or in respect of students enrolled at the Academy who were studying courses accredited in that way; but in practice the grant or benefit was paid to the college at which they were enrolled rather than to the students in person. The prosecution case at the trial of the appellant was, in essence, that she had directly herself, or indirectly through members of staff, advised, encouraged or arranged for students to enrol or maintain their enrolments for courses which they were not in fact studying at the college, but which (unlike courses which they were in fact studying) were eligible for Austudy payments. There was also evidence at the trial that in some instances particulars of enrolments, or the courses to which they referred, may have been falsified after inquiries were made by officers of the Commonwealth.

The trial occupied some 10 or more sitting days during which many witnesses gave evidence and a large number of documents was put in evidence. The appeal now before the Court turns on the admission into evidence of a document which became ex. 261. It is a document prepared (or so it was contended by the prosecution) by a firm of solicitors, who also acted for the appellant at the trial. Amongst other matters, it purported to record details of what had been said by the appellant in the course of an interview with Mr Cooke, who was a Commonwealth officer conducting an inquiry into matters which later led to the appellant being charged with the subject offence. In addition, it contains a detailed attempt to refute the allegations under investigation, as well as an account of the history, functions, and administrative practices of the Academy. It also contained complaints about the conduct of Mr Cooke in the course of the investigation.

It is the admissibility in evidence of this document, which was initially tendered at the trial only for identification and marked "A", and the circumstances in which it was admitted and marked ex. 261, that are now in issue. The grounds of the appeal against conviction are as follows:

"1. That the learned trial judge erred in law in not discharging the jury upon being informed that exhibit `A' for identification had been taken into the jury room and read in part by a number of the jurors.

2. That the learned trial judge erred in law in giving the Crown Prosecutor leave to reopen the prosecution case for the purpose of exhibit `A' being tendered as evidence in the trial.

3. That the learned trial judge erred in admitting exhibit `A' as evidence in the trial in circumstances where it had not been established by admissible evidence to have been made in terms authorised by or adopted by the appellant.

(a) the appellant was not afforded a trial properly conducted according to law.

It should, however, be added that Mr Martin S.C., who appeared for the appellant in this Court, conceded that success on ground 3 was necessary in order for him to succeed on grounds 1 and 2, and consequently for success on the appeal as a whole. It is therefore with ground 3 that it is appropriate to begin. For this purpose it is necessary to return to what happened at the trial.

The trial was in its seventh day when Mr Cooke was called by the prosecution to give evidence. He was introduced by Mr Hanson Q.C., who appeared for the prosecution both at the trial and on appeal, and identified as being at the relevant time in 1992 an investigations officer in the Benefits Control Unit of the Commonwealth Department of Employment, Education and Training, referred to by the acronym DEET. Having been instructed to investigate the Academy, he communicated with the appellant who described herself as the Principal of the Academy. Armed with some documents and accompanied by another DEET officer Mr Watson, he went to the offices of the Academy at the Gold Coast and met the appellant. She offered explanations in answer to questions asked by Cooke, but said she was unable to produce some of the documents he asked for because, as she claimed, they had been lost or destroyed when the Academy offices were broken into in mid-1992.

The two investigators returned to the Academy on 24 February 1993, and put to the appellant some further questions and documents for answers or explanations. Cooke said in his evidence that she maintained she had done nothing wrong, but he told her that her statements did not tally with information he had received from students; that he proposed to continue interviewing them; and that it might be necessary to refer the matter to the Australian Federal Police, which in due course was done. He also said that he later received from the Department a document known to him as a "Ministerial", to which he was asked to respond. It was that document that was then tendered for identification and marked "A". Counsel for the appellant at the trial did not exercise his right to cross-examine Mr Cooke on the evidence he had given.

On appeal Mr Hanson informed us that at that stage he had it in mind to use the document for the purpose of cross-examining the appellant if she gave evidence herself. Late on the same day, the prosecution case was closed, and the appellant was called on but elected not to give or adduce evidence in her defence. The trial was then adjourned to the following day.

On the following or eighth day, which was October 23, 1997, the proceedings opened with an announcement by the trial judge that ex. A had been accidentally taken into the jury room that morning. Mr Hanson Q.C. then intimated that, in that event, he might tender it in order to avoid a mistrial. After he had briefly described what the document contained, Mr Hutton of counsel for the defence suggested that the jury be asked whether any of them had looked at it. The jury were brought back into court, and three jurors acknowledged having "partly" read ex. A. An adjournment was granted to enable Mr Hutton to take instructions, after which he objected to the document being tendered in evidence. In substance his submission was that the document was unsigned, with no covering letter, and that the most that Cooke had said about it was that it had landed on his desk for comment. He submitted that the appellant had already elected not to call or give evidence, and would be prejudiced if the prosecution were permitted to re-open its case.

In the result, his Honour adjourned the hearing to a time later in the day to enable Mr Cooke to be recalled to give further evidence. When he returned to the witness box he said in answer to questions by Mr Hanson that the document had come into his possession as a "Ministerial", meaning by that a document lodged with the Department by the appellant or her solicitors in relation to the investigation earlier undertaken by him into the Academy. The document he said would have come "as it was" from Canberra with a Departmental letter asking for his response. Exhibit A was then tendered by Mr Hanson and admitted and marked ex. 261. There was on this occasion no objection by counsel for the defence to the admission of the document or to any of the further evidence given by Mr Cooke. Mr Hutton was given the opportunity to cross-examine Mr Cooke, but again he chose not to exercise it. The Crown case was then closed again by Mr Hanson. His Honour called on the appellant a second time, and she once more elected not to give or call evidence. Counsel addressed the jury; the summing up followed; and, after deliberation, the jury returned their verdict of guilty on the count charged against the appellant.

Mr Martin's submission was that ex. A was not admissible in evidence. There were, he submitted, several objections to it. The first was that it had not been proved that the document had ever been authorised by the appellant, and its contents were therefore hearsay. It did, however, bear in typescript the words "Lawson Jones & Fulham, Solicitors", which was the name of the firm of solicitors who were acting for the appellant at her trial and on this appeal. There is no reason why a document may not be authenticated by typing the name of a firm of solicitors at the end of it, even if the firm name is not superscribed or subscribed by a handwritten signature. The critical question, however, is whether the preparation and forwarding of ex. 261 was authorised by the appellant so as to make the statement it contained available as evidence of admissions by her. The answer to that question depends on the weight to be given to the alternative hypothesis that the document had been prepared and forwarded to the Department in Canberra by someone acting entirely without authority, which was a matter which it was for the jury to determine. In doing so, it was open to them to draw reasonable inferences from the contents of the documents itself and the circumstances of its receipt as recounted by Mr Cooke.

Mr Cooke said it came to him as a Ministerial from the Department in Canberra accompanied by a letter calling for a response by him. The original letter was not produced, but its production was not insisted on, and no objection was made to his giving secondary evidence of its contents. Mr Cooke's evidence about where the document came from was uncontradicted, and it was open to the jury to accept it as correct. It was not hearsay, but rather a conclusion of fact, which was not objected to, arrived at by the witness on the basis of inferences as to the appearance and character of the document and the letter accompanying it. It was plainly open to the jury to conclude, if there was an issue about it at the trial, that ex. 261 was in fact what on its face it purported to be; that is, a document emanating from the firm of solicitors whose name appeared on it, which had been forwarded to the Department in Canberra. It is inherently improbable that anyone else would have been interested in preparing or sending it to the Department.

The next question is whether it was open to the jury to conclude that the statements contained in the document could properly be attributed to the appellant as admissions made by her or with her authority. That question falls to be answered by reference to the nature and contents of the document. It consists of some 33 typed pages which, as has been said, contained a history of the Academy, its functions and administrative practices, together with a detailed refutation, mostly of a self-serving character, of the allegations made by Messrs. Cooke and Watson during their investigation. It incorporates a lengthy account, said to be taken from notes made by the appellant, of what was said by and to them in the course of the interviews in February 1993. That account and the other information in the document is such that it could only have come from someone with an intimate knowledge of the matters referred to, including the conversations that took place during the interviews at which only the two Commonwealth Officers and the appellant were present. In that sense, the contents of the document itself provided circumstantial evidence of its origins, on which the jury were entitled to act in deciding whether the appellant had authorised it. It does not go too far to say that it pointed plainly and unequivocally to the appellant herself as the source of the information it contained.

It was nevertheless submitted that the Academy was owned by a corporation of which the appellant was only one of the two directors and shareholders, the other being her husband. He or perhaps some member of staff might have authorised the document. She was, however, the Principal of the Academy and, in that capacity, the person present at the interviews with Cooke and Watson. In a matter of such serious importance to both the corporation and the appellant, one would naturally and reasonably expect the Principal to attend to the matter herself rather than to delegate to someone else responsibility for refuting the allegations against them. What she did in that regard may have been done in her corporate capacity; but any admissions by her were necessarily made by her as an individual as well as by or on behalf of the corporation. The case is, in a sense, the obverse of Harris v. Macquarie Distributors Pty. Ltd. [1967] VicRp 29; [1967] V.R. 257, where it was held that a statement made by an individual apparently in a position of authority in a company was binding on the company. Here it was the appellant who made the statements in the document, and they would serve as admissions by and against her individually even if for some reason they did not bind the corporation.

Finally, it was said that, by analogy with R. v. West [1973] Qd.R. 338, the document which became ex. 261 was not admissible against the appellant unless she was shown to have assented to the correctness of all of it. R. v. West was a case in which the accused read aloud a typed but unsigned record of interview up to a certain point in it and admitted it was correct up to that point. The Court of Criminal Appeal held that the typed record was admissible to that point because the accused had to that extent read and adopted it as a correct record of interview. The decision is, however, not authority for holding that a document is never admissible in evidence unless it has been read aloud and accepted as correct. Plainly there is more than one way in which statements in a document can become admissible in evidence as admissions made by that person. One, which is relevant here, is that the person against whom it is sought to tender the document in fact authorised its preparation and delivery or communication.

For reasons already given, it was open to the jury to conclude that that was what had happened here. The appellant as Principal had the most pressing and obvious interest of anyone in refuting the allegations made against her and the Academy, and ex. 261 contained precisely the kind of statement that one would have expected her to prepare in order to meet those allegations. As a matter of common sense, the jury were entitled to act on the assumption that the document was what it appeared to be in the absence of countervailing evidence, of which there was none, suggesting that someone else was responsible for its preparation and contents. No attempt was made, either by cross-examination or evidence at the trial, to challenge the authenticity, authority or accuracy of the document or its contents. In the circumstances, there was no basis for excluding it or its contents from evidence, or for preventing the jury from acting on it as reliable to the extent that they saw fit.

The result is that ex. 261 was properly admitted at the trial. Ground 3 and consequently the other grounds of appeal therefore fail.

There was incidentally also an application by the appellant for an order that the fees payable in respect of the appeal record be waived. The basis of the application was that the solicitors, who were privately instructed and not subsidised by legal aid, had funds in hand sufficient only to pay for the record, or for the appellant's legal representation on appeal, but not for both. It was said that it was not through any fault of the appellant that the mistake had been made in permitting ex. A to go to the jury. While that is so, however, it was she who decided to appeal on that ground, and, having failed on it, there is no legitmate basis for saying that her decision do so was justified. As it is, having regard to the limited scope of the appeal as it was presented in this Court, there is no identifiable reason why a full four-volume record comprising 1317 pages of transcript and exhibits should have been prepared for an appeal which in the result was confined to the examination of no more than about 50 pages in all. Although one may have some sympathy for the financial predicament of the appellant's legal representatives, the circumstances are not such that the cost of the record should be borne by or paid for out of public funds.

I agree with all that has been written by both the President and McPherson JA, and with the orders therein proposed. There is but little I wish to add.

One incidental argument raised by counsel for the appellant was that the document in issue was not signed, in the sense that there was no personal handwritten signature. However, at the conclusion of the document the name of a firm of solicitors appeared in typescript. Particularly given modern methods of communication (for example, E-mail) many communications in writing will not bear either the original or the facsimile of a personal signature. What remains of importance in all cases is that the document be authenticated, and that it be established as a fact, where relevant, that a particular party to the litigation was responsible for the communication.

Where, as here, the firm of solicitors whose name appeared in typescript at the end of the document is acting as solicitor for a party to the litigation an inference as to authenticity and responsibility for contents may more readily be drawn. The absence of an immediate challenge to the admissibility of the document on the ground that the party to the litigation was not responsible for its contents is material. Generally, at the stage when the document is tendered, objection should be taken to its authenticity so that either additional evidence relating thereto may be called or that question left for determination by the tribunal of fact on the whole of the evidence.

In this case it was ultimately for the jury to determine the weight, if any, which should be given to the document prepared as it was by solicitors acting for the appellant on her trial.

As already stated, I agree with the orders proposed.