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[2009] QCA 195
Court of Appeal (Qld)
2009-07-17
McMurdo P, Fraser JA and Applegarth, J, Separate reasons for judgment of each member of the Court, each
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Fuller [2009] QCA 195
PARTIES: R v FULLER, Katherine (appellant/applicant)
FILE NO/S: CA No 2 of 2008 / DC No 395 of 2007
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction and Sentence
ORIGINATING COURT: District Court at Maroochydore
DELIVERED ON: 17 July 2009
DELIVERED AT: Brisbane
HEARING DATE: 7 April 2009
JUDGES: McMurdo P, Fraser JA and Applegarth J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDERS: Appeal against conviction dismissed. Application for leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where a witness gave evidence as to what the complainant said the appellant had told the complainant – where defence counsel objected to this evidence on the basis that it was hearsay – where the trial judge allowed the evidence but directed the jury that it was only relevant to the state of mind of the complainant – whether this evidence was hearsay evidence – whether the trial judge erred in ruling that this evidence was admissible / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant argued that the trial judge erred by failing to direct the jury as to the use they could make of the complainant’s son’s evidence; by failing to direct the jury as to the drawing of inferences on the question of dishonesty; and by failing to give the traditional circumstantial evidence direction – whether the trial judge erred in these respects / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where there was a very strong Crown case on all counts – whether the appellant suffered a miscarriage of justice in the event that the trial judge did err in his directions to the jury – whether the Court should apply s 668E(1A) Criminal Code 1899 (Qld) / Criminal Code 1899 (Qld), s 668E(1A) / Evidence Act 1977 (Qld), s 59 / Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited / Perera v The Queen [1986] 1 Qd R 211, cited / Ratten v The Queen [1972] AC 378, cited / R v Adams; ex parte A-G (Qld) [2006] QCA 312, cited / R v DAN [2007] QCA 66, distinguished / R v Gourley [2003] QCA 307, cited / R v Hancox [2006] QCA 333, cited / R v Holman [1997] 1 Qd R 373; [1996] QCA 262, cited / R v McBride [2008] QCA 412, distinguished / R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited / R v Parker [2007] QCA 22, cited / Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44, cited / Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited / Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9, cited / Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied
COUNSEL: P E Smith for the appellant/applicant / P F Rutledge for the respondent
SOLICITORS: Legal Aid Queensland for the appellant/applicant / Director of Public Prosecutions (Qld) for the respondent
McMURDO P: I agree with Fraser JA's reasons for dismissing the appeal against conviction and refusing the application for leave to appeal against sentence.
The appellant, Katherine Fuller, has made out, at least in part, the contention in her first ground of appeal that the judge erred in admitting certain evidence.1
As to the second ground of appeal, the appellant implicitly states that the primary judge did not give the usual direction as to circumstantial evidence.2 No redirection was sought. While many judges may have given such a direction, at least if asked, this was not a classic circumstantial case where such a direction was mandatory. In these circumstances, I am not persuaded that the judge erred in not giving it.
The appellant rightly contends that the judge's directions to the jury did not comply with the suggested direction in the Queensland Supreme and District Court Benchbooks to be given where an accused person gives evidence.3 The judge did, however, give the following direction:
"I direct you as a matter of law the onus or duty of proof rests upon the prosecution. The prosecution has brought the charges; the prosecution is required to prove them. There is no onus or duty of disproof on the defendant.
In this trial, she exercised her right to give evidence herself. By doing that, she does not take upon herself a duty of proof. The duty of proof remains on the prosecution. The evidence she gave simply becomes part of the whole body of evidence which you will consider when you retire. It has no special quality because it came from the person who was charged, nor does the evidence of any other witness have any special quality because of who they are in the trial. It is all evidence and, ultimately, you will consider it all.
I direct you as a matter of law the standard of proof to be achieved by the prosecution before a person may be found guilty of a criminal offence is proof beyond reasonable doubt. That phrase has no legal - special legal or technical meaning; it is an every-day phrase. It simply means what it says. You, the jury, and you alone will decide on the evidence and in the circumstances of the case, whether the prosecution has discharged that duty of proof beyond reasonable doubt.
What the prosecution must prove beyond reasonable doubt are the essential elements which go to make up the offence you are considering. If the prosecution do that, then it is your duty as a tribunal of fact to find the defendant guilty of the charge. If the prosecution fail to do that, it is equally your duty to find her not guilty of the charge."
It is not surprising that, in light of that direction, the appellant's trial counsel did not ask for a redirection in the terms now contended for by her appeal counsel. I am not persuaded that the judge's directions set out in the preceding paragraph were inadequate in informing the jury of their obligations. They clearly stated that the jury could only convict the appellant if satisfied beyond reasonable doubt on the evidence of the elements of each offence and that, in giving evidence, the burden of proof did not shift from the prosecution to her.
As to the appellant's final contention, the judge's summing-up to the jury was balanced and adequately assisted the jury in identifying the real issues in the case, relating those issues to the relevant law and the facts, and outlining the main arguments of counsel.4 The difficulty for the appellant was that the prosecution evidence was far more persuasive than hers.
That is why, despite any errors of law made by the primary judge, after reviewing all the properly admissible evidence,5 I am satisfied that the appellant's convictions do not amount to a substantial miscarriage of justice: s 668E(1A) Criminal Code 1899 (Qld) and Weiss v The Queen.6
For these reasons, as well as those given by Fraser JA, I would dismiss the appeal against conviction.
The appellant was convicted after a trial of five counts of aggravated fraud involving, in all, $217,000. She was a mature woman. She had no previous convictions but there were no other relevant mitigating features in her favour. Appropriately firm penalties must be imposed on those who are convicted of intentionally and remorselessly preying on the vulnerable and elderly in this way. This is necessary to show the community's grave disapprobation of such conduct and to deter those who commit or might contemplate committing such offences. The appellant's five year sentence with parole eligibility at the halfway point is not manifestly excessive.
FRASER JA: On 13 December 2007 the appellant was convicted in the District Court of five counts of fraud. On the same date she was sentenced to five years imprisonment with a parole eligibility date of 13 June 2010.
The appellant appeals against her convictions and she applies for leave to appeal against sentence.
Appeal against conviction
The Crown case was that the appellant, who was 35 to 36 years old at the time, defrauded the complainant, then a widower of about 90 to 91 years of age, of $217,000. The defence evidence was to the effect that the complainant was a generous man who gave the money to the appellant because he was very fond of her.
The complainant gave evidence that shortly after the complainant’s wife died he met the appellant at a café in Noosa. That was before Christmas in 1999. The complainant was then living alone in his house at Pomona. His son, Patrick, and daughter in law, Maureen, lived in New South Wales. The complainant and the appellant met and spoke to each other regularly and became good friends. He lent her money, including $12,000 in January 2000 for her to repay her debts, and made gifts to her. One such gift (which the appellant said was a gift to her mother) was of the complainant’s car, after he stopped driving in about September 2003.
The complainant made a video which he gave to the appellant in about February 2000. In it he made clear that he had come to look upon the complainant as though she were his granddaughter. The video demonstrates that the complainant was very fond of the appellant. It was open to the jury to find that, as the appellant contends, it demonstrated that the complainant was infatuated with her. The complainant expressed his continuing affection for the appellant during his evidence at the trial.
In late 2003 the complainant was finding it difficult to live alone. He asked the appellant and she agreed that he could move into the spare bedroom in her unit at Coolum and she would take care of him if he paid rent and other bills. The complainant’s solicitor, Mr Bone, gave evidence of his instructions that as at December 2003 the complainant was to reside as a boarder with the appellant. In a will signed by the complainant and dated 5 December 2003, in which he left his estate to his son, the complainant referred to a proposal that he might become a boarder in the appellant’s household. The will included statements that the appellant “would not be financially dependent upon me” and that “I specifically state that it is my intention that no such dependency [sic] upon me exist”.
After the complainant eventually sold his own house he moved in with the appellant and lived with her for about eight months from about October 2004. The appellant provided him with care in that period. The complainant required hospital treatment on many occasions whilst he was living with the appellant. Ultimately, after being discharged from hospital he went to live with his son and daughter-in-law in June 2005.
Because one of the issues in the appeal is whether the particular errors in the trial contended for by the appellant resulted in a miscarriage of justice it is necessary to summarize the evidence bearing upon each count. After summarizing the evidence I will discuss the three grounds of the appeal against conviction.
Count 1
The Crown case on count 1 was that the appellant defrauded the complainant by inducing the complainant to transfer $5,000 to one Mrs Snowden. The prosecution alleged that the appellant falsely and dishonestly represented to the appellant that Mrs Snowden required the $5,000 as a holding fee for the anticipated purchase from Mrs Snowden of the unit the appellant was then renting from her.
The complainant gave evidence that the appellant told him that the unit she was living in was for sale but the appellant did not have enough money to buy it on her own; the appellant said that the owner of the unit, Mrs Snowden, wanted a holding fee of $5,000; and at the complainant’s request the appellant obtained and gave him details of Mrs Snowden’s account so he could transfer the money. (At this time the complainant’s house was already on the market. He had put it in the hands of an agent in about December 2003 but it did not sell until much later.)
In cross-examination the complainant said that some six months after he had paid the $5,000 to Mrs Snowden he had a conversation with her in which he referred to the money as a holding deposit and she said that it was for rent. The complainant said that he responded that it was in fact for a holding deposit. He thought this a little strange but it didn’t really bother him; he may have mentioned this to the appellant but he couldn’t remember doing so.
Mrs Snowden did not in fact own the unit or any unit in the complex. On 29 December 2003 the appellant transferred $5,000 by electronic funds transfer to the bank account of Mrs Snowden; and on 5 January 2004 a cheque for the same amount drawn on Mrs Snowden’s account was paid into the appellant’s account.
Patrick Riley gave evidence that in 2004 his father told him that he was putting down a holding fee for a unit Mrs Snowden wanted to sell, and that he and the appellant would pay the rest of the money after he had sold his house.
Mrs Snowden gave evidence that between 1997 and 1999 she had occupied the unit next to the appellant’s unit. They were friends. Mrs Snowden said that the appellant used to lend her money. The appellant also gave evidence that she had known Mrs Snowden since 1997. When asked about the transfer to her and her payment to the appellant of the $5,000, Mrs Snowden said that, “It’s a bit vague. I think it probably would have been money that Kathy owed me or for rent…I really don’t recall...”
The appellant gave evidence that the $5,000 was given to Mrs Snowden because the complainant had offered to pay the appellant’s bills and she owed $5,000 to Mrs Snowden. In cross-examination she adhered to that but she gave incoherent evidence when asked to explain why Mrs Snowden had given her $5,000 nearly immediately afterwards. At one point the appellant said that this was not “the same” $5,000 but she did not explain what she meant by that statement. Mrs Snowden did not give any evidence that explained or supported this aspect of the appellant’s evidence.
Count 2
The Crown case on count 2 was the appellant dishonestly induced the complainant to give a cheque for $123,000 to Mrs Snowden on 11 October 2004 by falsely representing to him that it was for the purchase from Mrs Snowden of the unit the appellant was then renting from her.
The complainant’s solicitor, Mr Bone, gave evidence that the first time the prospect of a joint purchase was raised with him was in September 2004. The solicitor prepared a draft agreement between the complainant and the appellant in contemplation of the complainant selling his home.
The draft agreement was signed by the complainant on about 21 September 2004. It referred to the appellant having an opportunity to purchase the unit she occupied. The terms provided, in summary, that the appellant and the complainant had agreed to reside together with the appellant providing some care for the complainant when she was not working as a nurse; that they had agreed that the complainant would contribute $90,000 towards their joint purchase of the unit; that the appellant would not have any entitlement against the complainant’s estate apart from the joint tenancy in the unit; and that the complainant’s interest in the unit would pass to the appellant upon his death, subject to the condition that the joint tenancy could be severed if the appellant did not provide reasonable care to the complainant or if he had to move out.
The complainant’s solicitor gave evidence that he posted the draft agreement to the appellant with a letter requesting her to execute it, but that he did not hear back from her. He did not act for the complainant after that.
The sale of the complainant’s home settled on 4 October 2004. On 11 October 2004 a cheque dated 5 October 2004 for $123,000 signed by the complainant and drawn on his account was paid into Mrs Snowden’s account; and on 14 October 2004 a bank cheque for $120,900 drawn on Mrs Snowden’s account was deposited into the appellant’s account.
The complainant’s evidence was that he paid $123,000 rather than the $90,000 referred to in the draft agreement because the appellant told him that the price went up a little bit. He wrote out the cheque to Mrs Snowden because he thought she owned the unit. He said that he gave the cheque to the appellant to give to her solicitor “to convey it to Mrs Snowden on …the sale of the unit”.
The complainant said that when he asked the appellant to sign the draft agreement prepared by his solicitor she refused but didn’t say why. He thought it was probably because she was a working girl and couldn’t give him “24 hours, seven days a week”.
The complainant said in evidence that he realized that he had met Mrs Snowden on one occasion but he had not then known that she was the person who the complainant had told him owned and was selling the unit. He had spoken to her on the telephone on three occasions. He gave evidence of a conversation with Mrs Snowden when she told him that the appellant wanted the unit and she was concerned that his house had not been sold.
Counts 3, 4 and 5
The Crown case on counts 3, 4 and 5 was that the appellant defrauded the complainant by forging the complainant’s signature on three cheques (for $40,000 on 9 November 2004, $29,000 on 30 November 2004 and $20,000 on 4 January 2005) drawn on his account, which he had not authorized and which were banked to the appellant’s account.
The complainant gave evidence that his eyesight deteriorated. He said that his October 2004 cheque for $123,000 was the last cheque he ever wrote, “and I had to do that out in the broad daylight, in the sunlight because I couldn’t see otherwise, on the boot of the car”. After he moved into the unit with the appellant he paid bills using his cheque book. The appellant kept the cheque book and brought it out for him to sign cheques, which he could not read. He did not fill out the other parts of the cheques. He gave evidence that he did not give the appellant any gifts whilst he was living with her in the unit.
The complainant gave evidence that he had no memory of signing and he did not authorize the three cheques. He found out about the cheques when he went to his bank with his son in about February 2005 to withdraw some money. He said that a bank teller told him that a new cheque book had been issued and two cheques had been written out from it.
In cross-examination he adhered to his evidence that he knew nothing about the three cheques. When defence counsel put to him that he had signed the cheques he said that “It’s probable. I don’t know”, that the appellant came to him with his cheque book and asked him to sign, and that he reimbursed her for her shopping.
Patrick Riley gave evidence that when he asked the appellant about $40,000 that had been drawn from his father’s account the appellant said that it was for an operation to have a breast removed because of cancer. Maureen Riley gave evidence that when her husband asked about the three cheques the appellant said that they were to pay bills.
Two handwriting experts, Mr Lau and Mr Heath, gave evidence which supported the Crown case.
Mr Lau, a document examiner with the Queensland Police Service, compared the complainant’s purported signatures on the three contentious cheques (two were the original cheques and the third was a photocopy) with the complainant’s signatures on the $123,000 cheque, on the complainant’s account opening document and three other documents, a statutory declaration by the complainant, and twelve cheques. The dates upon which those signatures were written spanned the period during which the three contentious cheques were written.
Mr Lau gave evidence that in his opinion all of the specimen signatures were written by the same person and that the person who wrote those signatures could not have written the signatures on the three contentious cheques. Mr Lau explained the bases for his expert opinions in detail. He identified numerous points which were common amongst the specimen signatures and different as between them and the contentious cheques. He referred to natural variations amongst the specimen signatures and to the potential effects upon a person’s signature of age, ill health and failing eyesight but he considered that the specimen signatures had not been affected by ill health.
The grounds of appeal
Ground (i): A miscarriage of justice occurred in this case as hearsay evidence from Patrick Riley or else [sic] was wrongly admitted. Further the Learned Trial Judge failed to appropriately direct the jury as to the use to be made of this evidence.
The appellant argued that Patrick Riley’s evidence of what the complainant said that the appellant had told the complainant was inadmissible hearsay; that the hearsay evidence might have operated unfairly against the appellant; and that, if the evidence was admissible the trial judge erred in failing to direct the jury as to the use it could make of the evidence.
The respondent contended that Patrick Riley’s evidence was not hearsay because it was not adduced as proof of the truth of the complainant’s statements, and that it was admissible evidence of his state of mind.
When the complainant started to recount statements made to him by the appellant, defence counsel objected on the ground that the evidence was hearsay. The trial judge allowed the prosecutor to lead the evidence and directed the jury that it was not evidence of the truth of what the complainant told Patrick Riley but was evidence only of the complainant’s state of mind. The trial judge then repeated the direction that the evidence did not establish the factual content of the conversation.
Patrick Riley gave evidence that the complainant told him -
(a) In about Christmas 1999 that: he met the appellant when she approached him because he was crying; she told him that her boyfriend had walked out on her leaving her in debt; he lent her some money because he felt sorry for her; he was going to give her a bank book into which she could repay the loan if she could afford it.
(b) At a time he could not recall but which he thought was in 2004 that: Mrs Snowden wanted to sell the unit, that the complainant was putting down a $5,000 holding fee, and that when his house was sold he and the appellant would pay the rest of the purchase price.
(c) At about the end of 2004 and a little time before the complainant sold his house and moved into the appellant’s unit that: he needed someone to look after him so he had asked the appellant if he could move into her spare room and he would be buying or partly buying the unit with her.
(d) At an unstated time (which the context suggested was shortly before the complainant gave Mrs Snowden the $123,000 cheque), that the complainant was going to pay $123,000 for his share in the unit.
(e) After the complainant had moved to live with Patrick and Maureen Riley that: the complainant’s bank balance was lower than he thought and when he and Patrick Riley went to the bank together the complainant discovered the three large cheques drawn on his account.
Was the evidence in (a)-(e) inadmissible hearsay?
In my opinion the evidence in (a) was inadmissible. The complainant’s state of mind when he made payments to the appellant that were not the subject of any count was not relevant to any issue.
I consider that the evidence in (e) was also inadmissible. That evidence was probative of a relevant fact only in so far as it established the truth of the words attributed to the complainant in expressing his previous lack of knowledge of the three cheques. Unless the truth of those words was proved, an inference could not be drawn that he had not intended to give the appellant the amount of the cheques. This evidence was therefore inadmissible hearsay. The respondent did not argue that the evidence fell within any exception to the rule precluding hearsay evidence.
The evidence in (b) – (d) was in a different category. As the trial judge directed the jury, that evidence was not adduced to establish the facts narrated by the words Patrick Riley attributed to the complainant (in substance, that in exchange for his payments the complainant would acquire an interest in a unit owned by Mrs Snowden), but only the complainant’s belief to that effect. The evidence demonstrated that the conversations between Patrick Riley and the complainant summarized in (b) – (d) occurred before or nearly contemporaneously with the complainant’s payments of the $5,000 and $123,000 to Mrs Snowden. If accepted, this evidence therefore tended to prove that the complainant believed at that time that in exchange for those payments he would acquire an interest in a unit owned by Mrs Snowden. That was relevant to rebut the defence case that the complainant made the payments solely out of a spirit of generosity and infatuation with the appellant.
Because the evidence was not adduced to prove the truth of the statements Patrick Riley attributed to the complainant but only to prove the complainant’s state of mind, which was itself relevant to an issue at trial, the evidence was not inadmissible as hearsay: Ratten v R [1972] AC 378 at 387; Walton v The Queen (1989) 166 CLR 283 at 288. The appellant did not contend that the trial judge should have rejected the evidence on discretionary grounds.
Did the admission of the inadmissible evidence or the trial judge’s directions cause a miscarriage of justice?
It is therefore necessary to consider the effect of the admission of the inadmissible evidence in (a) and (e) and the sufficiency of the trial judge’s directions.
The admission of the evidence in (a) did not cause any prejudice to the appellant. If it had any effect it tended to confirm that at times the complainant acted very generously towards the appellant; the evidence was to the effect that those early payments were gifts, subject only to the appellant at some unspecified time being able to afford repayments.
As to the evidence in (e), when Patrick Riley started to give the evidence the trial judge clearly and repeatedly directed the jury that the evidence did not establish the truth of the facts narrated. His Honour directed the jury that the evidence went only to the complainant’s state of mind. Those directions limited any effect adverse to the appellant of the admission of the evidence in (e) which I have concluded was inadmissible. I would add that it seems clear that the jury would have understood the trial judge’s directions to encompass all of the following evidence (which was very brief) in which Patrick Riley narrated statements he attributed to the complainant.
The trial judge did not in summing up at the end of the trial explain how the jury might legitimately use Patrick Riley’s evidence. Whilst I accept the appellant’s submission that this was an error, I am not persuaded that this omission led to any miscarriage of justice. In summing up the trial judge summarized the evidence relied upon by the prosecutor to prove for each count that the appellant had acted dishonestly. In that summation, the trial judge did not summarise the evidence of Patrick Riley on this point. The trial judge did summarise the evidence of the complainant, which was to the same effect as the inadmissible hearsay evidence. Defence counsel did not ask for any redirection on this issue, perhaps because it suited the appellant not to have any mention of Patrick Riley’s evidence in the summing up. That defence counsel apparently chose not to seek a redirection in such circumstances is a significant indication that the trial judge’s directions concerning the use of the admissible parts of the evidence did not result in a miscarriage of justice.7
The evidence of Patrick Riley was also of relatively minor significance when viewed in the context of the other evidence. For reasons which I later give concerning the application of the proviso, I consider that there was a very strong Crown case on each of the counts.
On the whole of the evidence I am persuaded that the admission of the inadmissible hearsay evidence and the deficiencies in the trial judge’s directions in this respect did not occasion any miscarriage of justice.
Ground (ii): A miscarriage of justice in that the Learned Trial Judge failed to direct the jury as to the drawing of inferences on the question of dishonesty and further failed to give the traditional circumstantial evidence direction.
“With respects to counts 1 and 2, the prosecution case is that she falsely led the complainant man to believe that the unit she was in was for sale and that they would purchase it together and that the contribution from him required was $123,000; that is with respect to count 2 and, that $5,000 was required to hold the unit; that is with respect to count 1.
Now, if you are satisfied about those matters, then it is a matter for you that [sic: but] you could readily be satisfied that the means by which she obtained the balance was dishonest by the standards of ordinary, honest people and, she knew it.
Counts 3, 4 and 5 are a little different. The prosecution case is that she obtained those credit balances, using cheques which she knew were not authorised by the complainant…
...
According to Mr Lau, it is not the complainant's signature on each of those cheques; according to Mr Heath, it is not the complainant's signature on counts 3 and 4, that is, the $40,000 and the $29,000 cheque. Regarding the 20,000 cheque, because of the photostat copy he had, he was unable to form an opinion about that.
If you accept - if you are satisfied that the defendant knowingly deposited to her account an unauthorised cheque with respect to the particular charge you are considering at a particular point in time for the amount of that cheque, then you may readily be satisfied, although it is a matter for you, that the means by which she obtained the credit balance, that is the amount of the cheque, was dishonest by the standards of ordinary honest people and she knew it."
After the trial judge had summarized the Crown case, putting the complainant’s evidence of the events in a chronological order and referring to the documentary and expert evidence, his Honour summarized the defence case in these terms: that the accused gave evidence that she never on any occasion told the complainant that the unit was for sale; that she saw him sign the three cheques; that everything the complainant gave her was a gift; and that she considered herself a very lucky person. The trial judge observed that the accused denied any dishonesty at all in her obtaining the credit balances the transferring of the cheques represented.
That was a concise summary of the defence case, but that did not deprive it of appropriate emphasis. The appellant’s evidence would then have been fresh in the jury’s mind. Her evidence concluded at about 3.30 pm on the third day of the trial. The addresses of defence counsel and the prosecutor concluded that afternoon. The trial judge summed up on the following morning. Defence counsel did not make any of the complaints about the summing up which are now advanced for the appellant or seek any redirection in those respects. Defence counsel did ask the trial judge to remind the jury of his argument that the video demonstrated that the accused was infatuated with the appellant. The trial judge gave the requested redirection, and no issue was taken with the terms of that direction. The last matter of which the jury was reminded was the video, upon which defence counsel appears to have placed considerable emphasis.
The appellant argued that the trial judge should have given the three directions that are commonly given in substantially circumstantial cases, namely as to the drawing of inferences (identifying the facts relied upon to establish dishonesty), that “guilt should be the only rational inference that could be drawn from the circumstances”,9 and that if there is any reasonable hypothesis consistent with innocence the jury’s duty is to acquit. 10
Relating those conventional directions to the evidence here, the appellant argued that the trial judge should have told the jury that the prosecution had to exclude the defence version beyond reasonable doubt; in particular, that the prosecution had to exclude beyond reasonable doubt an inference (from the reference in the will to the complainant moving in as a boarder) that the $5,000, paid months before discussions of the complainant moving into the unit, was not a holding deposit; inferences (from the evidence of Dr Grimley’s notes and the evidence of Mrs Snowden and the appellant) that the $123,000 was a gift; and inferences (from the defence evidence, and the complainant’s own evidence that he made some payments to the appellant as gifts and not caring how much he gave her) that the other payments were also gifts.
Ground (iii): The Learned Trial Judge erred in not isolating the relevant evidence on each count on the indictment when summing up to the jury and failed to adequately summarise the defence case to the jury.
The proviso
[78] If the appellant otherwise established a miscarriage of justice, I consider that it would be appropriate to dismiss the appeal by application of the proviso.14 In Weiss v The Queen,15 the High Court held that in applying the proviso, an appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task of the appellate court is an objective task not materially different from other appellate tasks; it is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; and it is not an exercise in speculation or prediction. It must be borne in mind that the standard of proof of criminal guilt is beyond reasonable doubt.
[79] There was a very strong Crown case on each of the counts. The complainant’s evidence was non-responsive and confusing at times, but that was hardly surprising for this 93 to 94 year old blind man. It did not detract from the cogency of his evidence, which remained consistent in its essential aspects. He was not seriously shaken in cross-examination and, more importantly, his evidence was supported in significant respects by compelling, independent evidence. The jury must have accepted his evidence. None of the points made for the appellant in this appeal persuade me that there is any reason to doubt its essential plausibility and reliability.
[80] The strength of the Crown case overall appears from the summary I gave at the outset of these reasons. I will refer here only to the more significant points.
[81] The appellant’s evidence that the $5,000 was a gift to her was weak and implausible. It could not withstand the undisputed evidence of the bank records that the money was not given to her but to Mrs Snowden. That evidence provided powerful support for the Crown case, corroborating the complainant’s consistent evidence that he paid the money to Mrs Snowden in the belief induced by the appellant that it was a holding fee for the unit. The appellant’s explanation that the $5,000 was given to Mrs Snowden because the appellant owed that sum to her was supported to some extent by Mrs Snowden’s equivocal evidence, but that explanation was itself contradicted by the undisputed fact that Mrs Snowden nearly immediately transferred the same amount to the appellant.
[82] Similarly, the appellant’s evidence that the complainant paid money into Mrs Snowden’s account “because she was more mature” was manifestly implausible. It also did not account for the undisputed fact that all but about $2,000 of the $123,000 which the appellant paid to Mrs Snowden was nearly immediately paid by Mrs Snowden to the appellant. There was also the contemporaneous evidence of the complainant’s state of mind in the draft agreement that he believed that he was to purchase a unit jointly with the appellant, a state of mind that made it most improbable, to say the least, that he made a gift of this very large sum of money to the appellant. As to the appellant’s reliance upon a conflict between the complainant and Dr Grimley’s evidence, it was understandable that by the time of the trial the complainant did not recall that he told Dr Grimley what was in his notes. In any case those notes were consistent with the complainant’s account that he paid the money for an interest in the unit he thought Mrs Snowden owned and agreed to sell.
[83] My earlier summary of the evidence relating to counts 3 – 5 similarly reveals a very strong Crown case. The jury was not obliged to accept the expert evidence and it was entitled to compare the handwriting itself,16 but the expert evidence that the signatures on the three cheques were not written by the complainant was detailed and cogent. It was not contradicted otherwise than by the appellant’s own evidence that the complainant made gifts to her of these large amounts.
[84] The evidence that the complainant was very fond of the appellant, even infatuated with her, could not explain away the undisputed evidence in relation to counts 1 and 2 that the appellant gave large sums of money to Mrs Snowden who then transferred nearly the same amount to the appellant, or the expert evidence that the complainant had not signed the three cheques the subject of counts 3 – 5. The jury was entitled to regard the evidence of the complainant’s infatuation not as comprehensively explaining why he gave large amounts of money to the appellant, but rather as part of the explanation of how it was that the appellant was able to perpetrate a substantial fraud alleged by the Crown.
[85] This is not a case in which this Court’s disadvantage in not seeing and hearing the witnesses give evidence is such that the Court is unable to be satisfied to the requisite standard of the appellant’s guilt. The evidence as a whole persuades me beyond reasonable doubt that the appellant was guilty of each of the charges. I am persuaded that the errors in the trial relied upon by the appellant did not cause any substantial miscarriage of justice. For the reasons I gave earlier, the defects in the trial were far from being fundamental or of such significance as to require a new trial in these circumstances.
[86] I would therefore dismiss the appeal.
Application for leave to appeal against sentence
[87] The appellant fell to be sentenced on the footing that she had defrauded the complainant, a man who was vulnerable because of his age, very poor eyesight, and infatuation with the appellant. By breaching the trust the complainant obviously reposed in the appellant, she dishonestly obtained a very large amount of money, none of which was likely to be recovered. The trial judge correctly characterized the appellant’s conduct as a flagrant fraud and a disgraceful breach of trust.
[88] The sentencing judge took into account in the appellant’s favour that she had no prior convictions. However she had not shown any remorse. She did not have the benefit of a plea of guilty.
[89] The appellant did not suggest that the trial judge erred in any particular respect. Her argument is that the sentence is manifestly excessive. A number of comparable decisions were cited to the Court.17 Similar sentences were imposed in those decisions. The fact that terms of four years imprisonment imposed in some of the decisions were held not to be manifestly excessive does not support the argument that this sentence was excessive. In my view the sentence was certainly not manifestly excessive.
[90] The appellant sought to adduce fresh evidence in this application in the form of a report by a psychiatrist. The report demonstrated that the appellant had a long history of instability, intoxication and a panic disorder from 2002 until 2008. It did not suggest that these matters contributed to the appellant’s offending or rendered her less culpable for her offending. It did not suggest that she would find it harder in prison than any other prisoner. The report suggested that the appellant was not remorseful and tended to blame her offending upon matters not supported by the expert opinion. If the report were admitted it would not form a ground for the mitigation of sentence. For these reasons, I would not give the appellant leave to rely upon the report.
Proposed orders
[91] I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.
[92] APPLEGARTH J: I have had the advantage of reading the reasons of Fraser JA, and agree with them and with the orders that his Honour proposes.
Set out in Fraser JA's reasons at [55(1)] and [55(5)]. ↩
See Plomp v The Queen (1963) 110 CLR 234, Dixon CJ at 243, Kitto and Taylor JJ agreeing, Menzies J at 246, Windeyer J agreeing with Dixon CJ and Menzies J; and Perera v The Queen [1986] 1 Qd R 211 at 216 – 217. ↩
Set out in R v McBride [2008] QCA 412 at [29]. ↩
R v Mogg [2000] QCA 244 at [54]; RPS v The Queen (2000) 129 CLR 620 at 637-638. ↩
Set out in Fraser JA's reasons at [12]-[50]. ↩
(2005) 224 CLR 300 at [41], [44] and [45]. ↩
See Gately v The Queen (2007) 232 CLR 208 at 232-234 per Hayne J. ↩
R v Fuller, Transcript of summing up, 13 December 2007 at 240-241. ↩
Shepherd v The Queen (1990) 170 CLR 573 at 578. ↩
Perera v R [1986] 1 Qd R 211 at 217. ↩
R v DAN [2007] QCA 66. ↩
Shepherd v The Queen (1990) 170 CLR 573 at 578.
R
Fuller [2009] QCA 195
(2007) 232 CLR 208
(1963) 110 CLR 234
(1990) 170 CLR 573
(1989) 166 CLR 283
(2005) 224 CLR 300
(2000) 129 CLR 620
Patrick Riley gave evidence that some little time before his father sold his house he told him that he would be buying or partly buying the unit the appellant lived in and moving in with her; he said that he was going to pay $123,000 for his share. Maureen Riley gave evidence that when the complainant was putting his house on the market he told her that the appellant had offered him a half share in the unit, after he had asked her if he could move in with her.
In cross-examination of the complainant he denied that he told Dr Grimley that he had paid a considerable portion of money for Kathy’s unit and put it in Kathy’s name “because I set it up that way so my son couldn’t interfere”. Dr Grimley was not available to give evidence but his clinical notes were tendered by agreement. Parts of the notes read out to the jury included the statements denied by the complainant.
The appellant gave evidence that the complainant gave her the draft agreement but she had no intention of purchasing the unit, she told the complainant that she would not sign the agreement, and he told her to tear it up. She denied that she had any discussion with the complainant about purchasing a unit with him. She gave evidence that the $123,000 was “a gift for me looking after Ron and I was absolutely flabbergasted.” The complainant surprised her with the cheque. She said that the complainant insisted that the money was paid into Mrs Snowden’s account “because she was more mature.” (The complainant said in cross-examination that this was a “load of bull”).
The appellant gave evidence that the complainant had met Mrs Snowden on a couple of occasions before he had given the appellant the $123,000.
Mrs Snowden gave evidence that she could not remember why the $123,000 had been deposited into her account. She said that it came from the complainant. She and the appellant went to the bank and deposited it to Mrs Snowden’s account because the appellant “wasn’t sure which way to go with this gift…and so, it stayed with me [Mrs Snowden]”. She gave evidence that the balance of $2,000 left in her account related to a previous loan she had made to the appellant “and a gift for my birthday from Kathy”.
In cross-examination Mr Lau maintained his “definite” opinion that the person who wrote all of the specimen signatures did not write any of the three signatures on the contentious cheques. He agreed that he could not say whether the same person signed each of the contentious cheques.
Mr Heath conducted a similar, detailed exercise. He expressed the opinions that the specimen signatures were all written by the same person and the signatures on the two original contentious cheques were false signatures not written by the person who signed the specimen signatures. He said that ill health, poor eyesight or the writer not looking at what he signed did not affect his opinion. Mr Heath said that the photocopy of the third cheque he was given was not of such a quality as to permit him to express an opinion about the signature on it.
Defence counsel did not cross-examine Mr Heath other than to ask a few questions which did not bear upon the evidence I have summarized.
I interpolate here that the appellant’s counsel submitted that the specimen signatures relied upon by the two experts, which were written on documents produced at trial by a police officer, should have been proved by the complainant. Defence counsel did not object to the tender of those documents, to the identification of them as the complainant’s signatures, or to the expert evidence. Nor was any complaint made in this respect about the trial judge’s summing up at the trial or in this appeal. Although the appellant’s counsel referred to this point the appellant did not advance it as a ground of appeal and her counsel did not argue that the trial miscarried on this basis.
The appellant gave evidence that the complainant signed the cheques and gave them to her. These were also gifts motivated by generosity towards her.
There is substance in the appellant’s submissions, but bearing in mind the real issues in this trial, I do not accept that this was a substantially circumstantial case similar to R v DAN,11 upon which the appellant’s counsel relied. As the trial judge’s directions quoted above indicated, whilst proof of dishonesty depended in each case upon drawing an inference, the issue of dishonesty substantially depended upon resolution of antecedent issues: the real issues were whether the Crown had established beyond reasonable doubt that the complainant had not made each payment as a gift, motivated by his generosity and infatuation, but had made the payments of $5,000 and $123,000 because of statements made by the appellant, and that he had not authorized the other cheques alleged to be forgeries. If the jury accepted the complainant’s and the expert’s evidence in its essential aspects, then there could hardly have been a contest that the appellant acted dishonestly in indirectly obtaining some $128,000 by telling the complainant that Mrs Snowden had her unit for sale, that she required a holding deposit of $5,000 for the unit, that the price the complainant had to pay was $123,000, and in receiving the benefit of the forged cheques which the complainant did not know of or authorize.
As to the other two directions the appellant argued should have been given (that guilt should be the only rational inference that could be drawn from the circumstances, and that if there is any reasonable hypothesis consistent with innocence the jury’s duty is to acquit), whilst it would have been prudent for the trial judge to give those directions there is no “invariable rule of practice” that they must be given in every case involving circumstantial evidence.12 The purpose of those directions is to explain and emphasize the requirement of proof beyond reasonable doubt.13 The trial judge’s directions made it very clear to the jury that a verdict of guilty might be given only if the jury was satisfied that the prosecution had proved the elements of the charged offences beyond reasonable doubt. His Honour gave and repeated the conventional directions to that effect. For example, the trial judge directed the jury that the prosecution must prove the essential elements of each charge, failing which the duty of the jury was to acquit. There was no complaint at trial or in this appeal about the trial judge’s descriptions of the elements of each offence or about the terms in which his Honour directed the jury as to the burden and standard of proof.
The appellant also argued that the trial judge should have directed the jury that even if it rejected the appellant’s evidence that was not the end of the matter; that there was not simply a choice between the version advanced in the Crown case and that advanced for the accused.
It is usually desirable that the conventional directions of the kind set out in the benchbook be given where the accused gives evidence: see R v McBride [2008] QCA 412 at [27] – [30], in which the directions in the benchbook are set out. The purpose of those directions is to ensure that the jury understands that, because the onus remains on the Crown throughout to prove guilt beyond reasonable doubt, the jury may be obliged to reach a not guilty verdict even if it does not accept, or even entirely rejects, the defence version.
This case was, however, unlike McBride and the cases cited in it, in which the trial judge’s directions or summaries of the respective cases might have left the jury with the impression that the jury might find guilt upon rejecting or not accepting the defence version and without going further. The trial judge’s directions made it abundantly plain that the jury should not find the appellant guilty of any offence unless it was satisfied beyond reasonable doubt that the Crown had proved the elements of that offence. This was not a case in which there was a realistic risk that the jury would reason towards guilt from non-acceptance or rejection of defence evidence without going on to consider whether the Crown had proved the elements of each count beyond reasonable doubt.
As I have indicated, I consider that the trial judge should have given the conventional directions for which the appellant contended. Nevertheless, for the reasons I have given, and in light of the strength of the Crown case which I discuss later in these reasons, I consider that the trial judge’s failure to give those directions did not occasion a miscarriage of justice.
R v Holman [1997] 1 Qd R 373 at 380. ↩
Criminal Code 1899 (Qld), s 668E(1A). ↩
(2005) 224 CLR 300 at [39]. ↩
Evidence Act 1977 (Qld), s 59. ↩
The appellant’s counsel cited R v Hancox [2006] QCA 333, R v Adams [2006] QCA 312 and R v Parker [2007] QCA 22. The respondent’s counsel cited R v Gourley [2003] QCA 307. ↩