R v Naidu

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where the appellant was made the sole attorney of the complainant's enduring power of attorney - where several transactions occurred that were particularised by the appellant as being gifts - where the Crown contended that the appellant had dishonestly taken advantage of the complainant - where the yield from the transactions was $371,848 - where the Crown's case relied upon establishing that the complainant was not capable of making the relevant decisions about his assets and finances - where there was evidence from various witnesses attesting to the complainant's capacity - where some evidence was contradictory - where the appellant was convicted after a trial by jury on two counts of fraud under s 408C(1)(d) of the Criminal Code 1899 (Qld) - where the appellant contended that the convictions were unreasonable, or could not be supported having regard to the evidence - whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was not capable of making the relevant decisions about his assets and finances - whether the evidence raised a reasonable doubt about the appellant's guilt

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where expert opinion evidence was given - where the expert relied upon material that was not proved and identified - where that evidence was inadmissible hearsay - where there was no objection by the appellant's trial counsel - where the failure to object was clearly explicable on the basis that it avoided significant forensic disadvantages - whether a miscarriage of justice resulted from the admission of the inadmissible evidence

Criminal Code 1899 (Qld), s 408C(1)(d), s 408C(2)(d), s 668E(1)

Ali v R (2005) 79 ALJR 662; [2005] HCA 8, cited

M v R (1994) 181 CLR 487; [1994] HCA 63, cited

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, cited; [2001] NSWCA 305

MFA v R (2002) 213 CLR 606; [2002] HCA 53, cited

R v Lindsay [1963] Qd R 386, cited

R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited

R v S [2002] QCA 167, cited

Suresh v R (1998) 72 ALJR 769; [1998] HCA 23, cited

TKWJ v R (2002) 212 CLR 124; [2002] HCA 46, cited

Director of Public Prosecutions (Queensland) for the

**[1] McMURDO P: I agree with Fraser JA's reasons for dismissing this appeal.

[2] The appellant, Shanta Mani Naidu, was convicted after a trial of two counts of fraud to the value of more than $5,000 (s 408C(1)(d) Criminal Code). The alleged victim of the frauds was James McFarlane, a man in his late 70s, whom Ms Naidu had befriended when she was in her 40s. She met him through Mr McFarlane's adult son, David, who was her next-door neighbour. She and Mr James McFarlane later formed an intimate relationship.

[3] The first count was alleged to have occurred on divers dates between 18 September 2002 and 15 July 2003. The second count was said to have occurred on divers dates between 14 July 2003 and 8 April 2004. Each count concerned several dispositions of property from Mr McFarlane to Ms Naidu which Ms Naidu claimed were gifts. During the periods covered by both counts Ms Naidu had Mr McFarlane's enduring power of attorney. During the period covered by count 2, he was in a nursing home. The total sum of money involved in both counts was $371,848.

[4] Mr McFarlane's dementia and expressive dysphasia at the time of the trial meant that he was not able to give evidence. Ms Naidu did not give or call evidence. By the end of the evidence, it was common ground that the pivotal issue for the jury was whether the prosecution had established Ms Naidu's dishonesty on both counts beyond reasonable doubt. The prosecution sought to do this by one of two alternative means. The first was that "Mr McFarlane did not have the mental acuity or sufficient memory to properly make gifts to Ms Naidu or understand the nature and extent of his remaining assets and Ms Naidu was aware of that". The second was that "Mr McFarlane had a significantly lower than normal mental acuity and Ms Naidu was aware of this and had deceived [him] about his family and her affection and intentions towards him which, when made to a man of at least reduced mental acuity, was dishonest".

[5] The learned primary judge correctly directed the jury that to obtain a conviction against Ms Naidu the prosecution must prove two things beyond reasonable doubt. The first was that Mr McFarlane was not capable of making the particular decisions about his assets or finances at the time of the relevant financial transactions. The second was that Ms Naidu knew or believed that he then did not have that capability. The judge fairly summarised for the jury the competing contentions of the prosecution and defence and emphasised that the determination of these matters was for them alone on the evidence.

[6] The jury did not have to be satisfied that every receipt of property by Ms Naidu from Mr McFarlane was obtained dishonestly.[1] It was sufficient for the jury to be satisfied beyond reasonable doubt that $5,000 or more was dishonestly obtained by her from Mr McFarlane during the period charged in each count.

[7] Ms Naidu's appellate counsel does not suggest that the judge's directions to the jury were in any way flawed. Her contention is that a review of the whole of the evidence demonstrates that it was not open to the jury to be satisfied beyond reasonable doubt that Mr McFarlane was incapable of making decisions about the disposition of his property during the time periods alleged in each count. If that contention is correct, the verdicts of guilty should be set aside and verdicts of acquittal entered. Within that submission, the appellant contended that the expert evidence of Dr Byrne was inadmissible and unsafe for the jury to rely on, because the facts on which it was based were not proved. I do not want to add anything to what Fraser JA has said as to the admissibility and reliability of Dr Byrne's evidence in this case.

[8] Both Ms Naidu's counsel at trial and her appellate counsel placed emphasis on the evidence of solicitors, Mr Rafik Sabdia, Mr Rajan Lashand and Ms Adrianna Botros. Fraser JA has referred to much of their evidence and given entirely plausible explanations as to why the jury was not required to have a doubt about Mr McFarlane's lack of capacity, despite the solicitors' evidence that at the times they dealt with Mr McFarlane he was apparently able to give them instructions as to his financial affairs. In addition to the matters set out by Fraser JA, I make the following observations.

[9] Mr Sabdia, the principal of his firm of solicitors, gave evidence by telephone. He prepared an enduring power of attorney dated 29 August 2002 (a few weeks before the commencement of the period covered by count 1) jointly appointing Mr McFarlane's daughter, Sabina Lando, and Ms Naidu (known as Sutton until her marriage in about August 2003). On 19 September 2002 (the beginning of the period charged in count 1) Mr McFarlane revoked that power of attorney and gave a new power of attorney in identical terms save for appointing Ms Naidu as his sole attorney. From then on, Mr Sabdia's employed solicitor, Mr Lashand, took over the file.

[10] Mr Lashand also gave evidence by telephone. By the time of the trial, he was no longer working as a solicitor. He commenced with Mr Sabdia's firm in late July or early August 2002, soon after his admission as a solicitor in July that year. In August 2002 (just before the beginning of the period relevant to count 1) he took instructions from Mr McFarlane in respect of the estate of his deceased wife, Sabine Barrett McFarlane. Mr Lashand was told by Mr McFarlane that he understood his late wife had not made a will. Ms Naidu accompanied Mr McFarlane. She was also unaware of any will. In applying for letters of administration of Mrs McFarlane's estate, Mr Lashand took out newspaper advertisements. This resulted in the Public Trustee notifying him on 1 April 2003 that they held a will for Mrs McFarlane. Mr Lashand had contact with Mr McFarlane four or five times over this period, usually with Ms Naidu present. On 30 July 2003 (about two weeks into the period spanning count 2 and shortly after Mr McFarlane's admission to the nursing home) Mr McFarlane attended with Ms Naidu and requested that Mr Lashand prepare a new will for him. He spoke privately about this with Mr McFarlane before Ms Naidu joined them. Mr Lashand took advice from Mr Sabdia. Mr Lashand passed on this advice to Mr McFarlane and Ms Naidu. It was to the effect that Mr McFarlane should instruct another lawyer to prepare the will and because of Mr McFarlane's age they should obtain a medical certificate. The firm of solicitors Mr Lashand recommended was Davellin Lawyers, located across the street from Mr Sabdia's firm.

[11] Mr Lashand next saw Mr McFarlane when he attended his office with Ms Naidu in August 2003. They came to amend the enduring power of attorney to reflect Ms Naidu's change of name by marriage from "Sutton" to "Naidu". In cross-examination Mr Lashand's best recollection was that Ms Naidu mentioned her recent marriage in front of Mr McFarlane because they were in the same room together. Mr Lashand said:**

"... I explained it was just a minor change from her name 'Sutton' to

... He trusted [Ms Naidu] ... from my observations at that time."

[12] Ms Botros gave the following evidence. She was employed as a solicitor at Davellin Lawyers as she was on 30 July 2003 when she took instructions from Mr McFarlane. (The obvious inference is that Mr McFarlane and Ms Naidu came straight from Mr Lashand.) He provided an existing will and instructed her to create a new will with Ms Naidu as the sole beneficiary and executor. No medical certificate was provided. Mr McFarlane was able to give instructions and nothing was raised in the interview that made her think it prudent to obtain a medical certificate about his mental capacity. Ms Naidu was present at all times. To the best of her recollection, the consultation took "the better part of one hour" and Mr McFarlane rather than Ms Naidu did most of the talking. The existing will made bequests for medical payments for Mr McFarlane's wife and bequests for his children. Ms Botros explained that his wife and children might contest the proposed will leaving everything to Ms Naidu. He said that there was no possibility that his wife would claim and he did not speak to his children. The following portion of an acknowledgment Ms Botros had Mr McFarlane sign that day was read to the jury:

"I have instructed the solicitor to prepare a will on this 30th day of July 2003. I have shown the solicitor a copy of my previous will dated 16 July 2002. The previous will includes my children as beneficiaries. I requested the solicitor to exclude any of my children as beneficiaries under the new will. Despite that, the solicitor has explained the implication of family provisions under the Success (sic) ... Act

And now [sic] the likely consequences of not bequeathing any of my estate to my children. I have instructed the solicitor to engross a new will excluding my children's beneficiaries [sic]. The reason for such exclusion pertains mainly to the fact that the children have been estranged from me for a lengthy period of time and I have considered that this estrangement has resulted in a breakdown of familial relationship. I sign the will freely, voluntarily and without pressure from any person and I indemnify and shall always keep indemnified the solicitors from being personally negligent or liable in any action which may subsequently arise following my death."

**[13] Against the evidence of the solicitors, which was capable of showing that Mr McFarlane had mental capacity when they dealt with him, was the substantial and compelling competing body of evidence from the medical experts, Mr McFarlane's family and Ms Naidu's friends set out by Fraser JA. The effect of this evidence was to strongly gainsay the inference available from the evidence of the solicitors as to Mr McFarlane's apparent mental competence on and following 18 September 2002.

[14] Of some significance was the evidence of Ms Rachel Harris, a registered nurse with a Master of Nursing Leadership and many years of experience of caring for elderly nursing home residents, including those with dementia. She was the clinical manager at the nursing home when Mr McFarlane was brought there by Ms Naidu for admission on 14 July 2003, two weeks prior to Mr McFarlane making his new will in favour of Ms Naidu. Ms Harris described Mr McFarlane on 14 July 2003 as suffering evident dementia; his answers were unreliable and he was confused. From then on she saw Mr McFarlane "[p]retty much on a daily basis" and his dementia was "fairly stable". During her interview with Ms Naidu on 14 July 2003, Ms Naidu said "she was not coping at home and [Mr McFarlane] gets confused". Ms Harris's testimony was compelling objective evidence that on and after 14 July 2003, and inferentially for some time beforehand, Mr McFarlane was suffering from dementia.

[15] The following matters reinforce those mentioned by Fraser JA for rejecting the appellant's contention that the evidence from the solicitors at least raised a doubt as to Mr McFarlane's mental acuity during the specified periods in the charges. The jury may have considered that the solicitors were not disinterested in giving evidence that Mr McFarlane appeared mentally capable. The solicitors were not experts in determining mental capacity. They did not know Mr McFarlane well and observed him for relatively short periods. Mr Sabdia's dealings with Mr McFarlane mostly preceded the time periods covered by counts 1 and 2. Mr Lashand was an inexperienced solicitor at the time of his dealings with Mr McFarlane. Mr McFarlane was unaware that his wife of many years had made a will with the Public Trustee. That was something Mr McFarlane would ordinarily be expected to know but it was not something Ms Naidu would have known unless through Mr McFarlane. His lack of knowledge of his wife's will was consistent with the medical evidence that he was, even at this time preceding the period of the charges, suffering symptoms of dementia. The fact that Ms Naidu was comfortable in mentioning her change of name by marriage in front of Mr McFarlane, whom she had described to others as her lover, was consistent with him suffering dementia and her knowing this. It was curious that, despite the recommendation from Mr Lashand on the advice of Mr Sabdia that Mr McFarlane should obtain a medical certificate as to his mental capacity before making a will in favour of Ms Naidu, no such medical certificate was obtained before he and Ms Naidu immediately attended on Davellin Lawyers to prepare the new will. If Mr McFarlane had mental capacity at this time, it seems incredible that he would not tell Ms Botros that his wife mentioned in the first will had died. If Ms Botros was mistaken as to what he said about his wife, she may well have been unreliable on other matters. The legalistic terms of the acknowledgement signed by him at Ms Botros's request did nothing to prove his mental capacity. The solicitors' evidence did not necessarily throw doubt on the other compelling evidence that at the relevant times Mr McFarlane lacked mental capacity. Indeed, it was capable of supporting that evidence.

[16] For these reasons, as well as those given by Fraser JA, after reviewing the whole of the evidence, I am persuaded that it was well open to the jury to be satisfied beyond reasonable doubt of Ms Naidu's guilt on each charge.

[17] FRASER JA: The appellant appeals against her conviction, after a trial by jury lasting seven days, of two counts under s 408C(1)(d) of the Criminal Code 1899 (Qld), which provides:**

"A person who dishonestly gains a benefit or advantage, pecuniary or otherwise, for any person, commits a crime of fraud."

**[18] The Crown case was that the appellant had dishonestly taken advantage of McFarlane, a man in his late seventies with whom the appellant had formed a relationship.

[19] The first count concerned transactions between 18 September 2002 (the day before McFarlane executed an enduring power of attorney making the appellant his sole attorney) and 15 July 2003. The period covered by the second count commenced when McFarlane entered a nursing home on 14 July 2003 and extended until 8 April 2004.

[20] Several transactions were particularised in relation to each count by way of "gifts" to the appellant by James McFarlane, the "yield" (for the purposes of s 408C(2)(d) of the Criminal Code) being more than $5,000.[2] The total sum of money particularised for both counts was $371,848. Although the Crown accepted it was unable precisely to identify the use to which some of that money was put, there was no significant issue about the transactions themselves. An extensive list of admissions were made by the appellant in a documentary exhibit, which included the appellant's use of her power of attorney to transfer various sums of money from McFarlane's bank account to her bank account and for a variety of the appellant's own personal transactions on McFarlane's bank account (including, for example, the purchases of a car, furniture and a wide variety of other items). In addition, the appellant admitted that McFarlane had transferred shares he owned to the appellant.

[21] The critical issue at trial concerned proof of the appellant's alleged dishonesty. As to that, the Crown case was confined by its particulars that:**

"Mr McFarlane did not have the mental acuity or sufficient memory to properly make gifts to Ms Naidu or understand the nature extent of his remaining assets and Ms Naidu was aware of that.

Or alternatively Mr McFarlane had a significantly lower than normal mental acuity and Ms Naidu was aware of this and had deceived Mr McFarlane about his family and her affection and intentions towards him which, when made to a man of at least reduced mental acuity, was dishonest."

**[22] To put it in broad terms, at the trial the Crown sought to prove the element of "dishonestly" in s 408C(1)(d) by proving both (1), that McFarlane was not capable of making particular decisions about his assets and finances and (2), that the appellant knew or believed that he did not have that capacity at the time of the particular decisions reflected in his "gifts" to her.

[23] When the relationship between McFarlane and the appellant commenced, McFarlane was married to Sabina McFarlane and the appellant lived next door to the McFarlane's son, David. The evidence was vague as to the time when the appellant and McFarlane first developed a close relationship, but the evidence strongly suggested that such a relationship was established by early 2002. By then McFarlane had bought the appellant a car and given her money for an overseas trip and other things, according to the evidence of the McFarlanes' adult children. There was unchallenged evidence to the effect that this close relationship endured through the first and second charge periods. In short, there was a powerful case that, whatever was the capacity of McFarlane, the appellant was well aware of it. That aspect of the Crown case was not in issue in the appeal.

[24] The issue agitated in the appeal concerned the remaining aspect of the case as to the appellant's alleged dishonesty, namely whether McFarlane was capable of making the relevant decisions about his assets and finances.

[25] The appellant sought and was granted leave to amend her notice of appeal to confine it to one ground, that the verdict of the jury is unsafe and unsatisfactory. This invokes the ground expressed in s 668E(1) of the Criminal Code that the convictions were "unreasonable, or cannot be supported having regard to the evidence". The question under that provision is whether, even if as a matter of law there is evidence to sustain a verdict, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[3]

[26] The appellant's particulars of her ground of appeal confined it to the contention that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that McFarlane was not capable of making decisions about his assets and finances in respect of any of the alleged defalcations.

[27] It was that contention that was developed in the submissions made by the appellant's counsel. A related submission was that the evidence of a geriatric psychiatrist, Dr Byrne, to the effect that McFarlane suffered from dementia and was incapable of making decisions about his assets during both charge periods, was inadmissible.

[28] It is necessary then to refer to that evidence which significantly bears on the question whether it was open to the jury to be satisfied beyond reasonable doubt that McFarlane was not capable of making the relevant decisions about his assets and finances.

[29] In March 2002, that is to say some six months before the commencement of the period the subject of the first count, McFarlane had a stroke. Two of the McFarlanes' children (Sabina Lando and Jean Lidster) gave evidence of various conversations and events indicating that he was confused and unable to remember quite simple things, such as how to play a particular card game with which he had been familiar. Evidence about substantial inadequacies in his memory was also given by the McFarlanes' son, David McFarlane.

[30] Dr Reynolds, McFarlane's general practitioner for a long time, observed in mid-July 2002 (by which time McFarlane has suffered a series of strokes, as both she and Dr Byrne confirmed in their evidence) that he was very vague and was not as she had remembered him before he had suffered his strokes: she was quite shocked at the change in him.

[31] The lay evidence about McFarlane's capacity in the few months before the commencement of the first charge period is conflicting. Although Lando agreed with answers she had given in evidence at the committal that as at late 2002 McFarlane remained smart and responsible with his investments, she also expressed views to the effect that in July and early August 2002 he was confused and did not know what was going on, required things to be repeated and was not sure of what was said.

[32] The evidence suggested that there was a deal of family conflict, arising for example out of evidence of affection displayed between McFarlane and the appellant in front of McFarlane's wife, Sabina, who at that time was confined to a wheelchair. Lidster also gave evidence of the appellant angrily saying on one occasion (this seems to have been later) that:**

"If you children don't look out youse will not get any money. I'll make sure of that."

**[33] Sabina McFarlane died on 17 August 2002. Lidster gave evidence of confusion by McFarlane in relation to his knowledge of his money and his assets shortly after this, and a mistake he made about where he kept some of his papers concerning shares. She said that McFarlane seemed very confused. David McFarlane continued to live with his father in this period, but his evidence was very vague, possibly because of memory deficits associated with his excessive alcohol consumption to which he testified.

[34] On 29 August 2002 - about three weeks before the commencement of the first charge period - McFarlane executed an enduring power of attorney which made Lando and the appellant (then known as Shanta Sutton) his joint attorneys. The solicitor who prepared the document and the subsequent revocation and replacement power of attorney on 19 September 2002, Rafik Sabdia of the firm R Sabdia & Associates, gave evidence to the effect that he explained the documents and ensured that McFarlane understood their nature and effect. However, the jury was not bound to accept the evidence. It was not given with reference to detailed records or in such a detailed or compelling form as to command its acceptance. It was also weakened to an extent by his evidence that he did not think that he asked McFarlane to explain things back to him.

[35] Although Lando gave evidence to the effect that at the time of this power of attorney McFarlane "was fine", she also said that he wrongly blamed her for the non-existence of an investment which she had recorded even though this appeared to relate to a transaction in 2000, more than two years before she became his attorney and for which she could not have been responsible. After an argument about that her power of attorney was revoked on 19 September 2002 (when the appellant was appointed as McFarlane's sole attorney) and Lando did not speak to her father again until mid-2004.

[36] Another solicitor, Raj Lashan of R Sabdia & Associates, gave evidence of having been consulted by McFarlane on four or five occasions concerning administration of the estate of his late wife and about twice after that towards the end of the first charge period or the beginning of the second charge period in the middle of 2003. His evidence was to the effect that McFarlane seemed to understand the extent and nature of the relevant financial matters. Again, the jury was not bound to accept the evidence even though the witness swore that the involvement of the appellant in those discussions was "not extensive" and that the "primary instructions" were received from McFarlane. The jury may, for example, have taken into account the evidence of Lashan that when McFarlane said he wanted to get the power of attorney amended Lashan "checked with Shanta" who was also in the room; that it was the appellant who explained the need for the amendment (arising out of the change of her name); that Lashan's evidence that the involvement of the appellant "was not extensive" may have suggested that she was involved in the discussions; that something that happened in Lashan's presence gave him the impression that McFarlane "trusted" the appellant; and that "because of his age" on one occasion Lashan suggested that it was necessary to obtain a medical certificate for the making of a new will.

[37] The jury was also entitled to take into account the lack of detailed evidence of what it was that McFarlane actually said or did to convey the impression sworn to by Lashan that he appeared to understand the extent and nature of the financial matters. The evidence conveys the impression that the consultations were not lengthy.

[38] Dr Reynolds saw McFarlane again on 18 November 2002 when McFarlane could not communicate as a result of what was said to be yet another stroke, or a possible "mini stroke". Although Dr Reynolds did not see McFarlane again until 13 April 2004, her evidence suggested that his mental condition was similar throughout: he was "very vague". Therefore, although it seems that Dr Reynolds did not perform a formal "mental state examination" in 2002, the jury was entitled to attribute significance to this evidence in relation to both charge periods. For that reason it is appropriate at this point to mention Dr Reynolds' evidence of her observations of the appellant on 13 April 2004, five days after the end of the second charge period. Dr Reynolds' evidence was that the appellant then did not know the day, the date or the year; he was not orientated in time and place, and Dr Reynolds did not regard him as capable of looking after his own affairs.

[39] If the jury accepted that evidence, they legitimately might also have attributed particular significance, for both charge periods, to her further evidence that on 13 April 2004 the appellant nevertheless asked Dr Reynolds for a letter stating that McFarlane was fit to manage to his own affairs. Dr Reynolds declined to give such a certificate, unsurprisingly in view of her evidence of his very substantial incapacity to manage his affairs.

[40] As I earlier mentioned, McFarlane was admitted to the nursing home on 14 July 2003. Ms Smith, a friend of the appellant, gave evidence that the appellant said she "had to look after him" and that the "only reason was because he had lots of money and the money was going to be hers." The jury was also entitled to give weight to the evidence of admissions given by Ms Smith that the appellant told her that McFarlane was suffering from "dementia" and that the appellant said quite a few times that she "was only after James McFarlane's money".

[41] Rachel Harris, who was the clinical manager and a nurse at the nursing home, gave evidence that at the time of McFarlane's admission to the home in July 2003 the appellant said that McFarlane was getting more confused; that she was not coping with him at home and he was becoming aggressive. Harris gave evidence that the appellant explained how McFarlane's "dementia was manifesting itself in his confusion", although in cross-examination she agreed that she could not specifically recall whether the word "dementia" was mentioned by the appellant. She rejected the suggestion that what was said was that McFarlane "seemed to be getting a bit confused" and said that it was "more than that. It was more than getting a bit confused"; she remembered the appellant saying that McFarlane "gets confused" or "got confused".

[42] Harris observed that McFarlane was in fact a bit aggressive after drinking about once a week. She said that McFarlane's dementia was "evident" in the unreliable answers he gave to her questions about recent events, his current whereabouts and why he was at the nursing home and that his "dementia state" was "fairly stable" after his initial assessment.

[43] The evidence by Harris of significant deficiencies in McFarlane's capacity directly concerned the second charge period, but because it described McFarlane's capacity immediately after the first charge period, and because it was given in terms that suggested that he had earlier suffered from similar difficulties, the jury was entitled to regard it (like Dr Reynold's evidence) as important evidence of serious limitations on McFarlane's capacity also during the first charge period.

[44] The visiting general practitioner to the nursing care home, Dr Dunworth, saw McFarlane shortly after his admission to the home, in July or August 2003. I will return to his evidence when discussing Dr Byrne's evidence.

[45] Relevantly to this second charge period, there is evidence of a consultation of 30 July 2003 between McFarlane and Raj Lashan concerning McFarlane's request for a new will giving all of his assets to the appellant. I have already touched on Lashan's evidence about this. When Lashan spoke to Sabdia (the principal of the firm), Sabdia recommended that the appellant see Davellin Lawyers because that was a normal procedure. On the same day the appellant and McFarlane attended upon Adrianna Botros of Davellin Lawyers and instructed her to create a new will naming the appellant as sole beneficiary and executor. The will was witnessed by Botros and the principal of her firm, Chun-Hong David Lin. The effect of Botros' evidence was that McFarlane appeared to understand and to give very clear instructions and that there was no indication of any health issue.

[46] On the other hand, the evidence that Botros gave about what McFarlane actually said was really quite limited. She gave evidence of him having said, in response to a question from her, that he did not think there was a possibility of his wife making a claim and that he didn't speak to his children, but otherwise much of her evidence concerned her view of what he appeared to understand. It is also relevant that the appellant was present in the room for the whole of time that she was speaking to McFarlane and that she qualified her evidence that it was McFarlane who did most of the talking by the words "to my best recollection".

[47] On behalf of the appellant particular reliance was placed upon the evidence of the solicitors (Sabdia, Lashan and Botros) to the effect that McFarlane was apparently able properly to give instructions about the enduring power of attorney on 28 August 2002, its revocation and the creation of a new enduring power of attorney on 19 September 2002, the administration of McFarlane's deceased wife's estate on four or five times during 2002 and 2003, the giving of instructions for and the preparation of a new will on 30 July 2003 and the creation of a new enduring power of attorney on 30 August 2003 (amending the name of the appellant).

[48] The submission is not without substance, but ultimately the significance of that evidence in the light of the other evidence was a matter to be assessed by the jury. As what I have said about this evidence indicates, it was not so detailed or apparently reliable when assessed in the context of the other evidence that the jury was bound to accept it or to treat it as necessarily raising a reasonable doubt about the appellant's guilt.

[49] Dr Byrne examined McFarlane on 8 April 2007, a little less than three years after the end of the second charge period. The examination was a thorough one, occupying about an hour and a half.

[50] The critical part of Dr Byrne's evidence was his retrospective diagnosis of McFarlane concerning his capacity during the first and second charge periods. Before discussing that diagnosis, it is necessary to mention his diagnosis of McFarlane at the time of the examination in 2007. At that time Dr Byrne diagnosed dementia - meaning brain failure - and expressive dysphasia affecting both McFarlane's speech and written communication.

[51] It appears from his evidence, and from the evidence of Dr Reynolds about a diagnosis of expressive dysphasia by another doctor at her practice who was not called, that expressive dysphasia refers to a difficulty in arranging words in the correct order or in pronouncing those words. This can make it difficult to ascertain how much comprehension there is as well. Expressive dysphasia can exist in combination with cognitive disability or it can be linked to the absence of capacity.

[52] With reference to McFarlane's responses which were comprehensively described in Dr Byrne's evidence, Dr Byrne expressed the opinion that McFarlane suffered from both moderately severe dementia and quite severe expressive dysphasia. He specifically related that opinion to the question of financial capacity in his further evidence that McFarlane did not know the sort of assets he had or what he would like to do with them; or, if he had any general idea about those things, he was unable to communicate it. He concluded that McFarlane lacked capacity to make decisions about those assets.

[53] That opinion evidence was not seriously challenged in cross-examination of Dr Byrne. On the contrary, the appellant's counsel observed that "it would be nonsense for me to suggest that on Mr McFarlane's presentation to you in February this year that he did not have dementia" and put the question, with which Dr Byrne agreed, that "he clearly had dementia?".

[54] Rather, the tack taken by the appellant's counsel at trial was to challenge only Dr Byrne's retrospective diagnosis that McFarlane had suffered a similar degree of incapacity during the charge periods. In order to appreciate the basis of the challenge it is first necessary to say a little more about Dr Byrne's 2007 diagnosis.

[55] Dr Byrne gave evidence that within a few minutes of meeting McFarlane he gained the impression that McFarlane had some cognitive impairment or problems with his memory and thinking, by which he meant problems with judgment, planning, organisation, and the general functions of the brain. Then it became clear to Dr Byrne when he sought to obtain a detailed history from McFarlane that he was able to provide only sketchy details of his life in response to routine questions the answers to which, in a healthy person, would be straightforward. He observed that McFarlane's expressive dysphasia was manifested, for example, in his changing previous answers when the questions were addressed only in a slightly different way. Then Dr Byrne moved onto specific questions about assets and the like and observed that McFarlane was unable to answer questions concerning things such as asset classes. It appeared either that McFarlane did not know what his assets were or if he did know he could not tell Dr Byrne.

[56] Following that part of the interview, Dr Byrne administered some formal testing. One test was an "abbreviated mental test" (known as an "ABM"), a very simple test consisting of ten questions commonly used in nursing homes by general practitioners. McFarlane was unable to answer simple questions such as what his age was, the approximate time of the day, the name of the place where he lived and so on. In total McFarlane scored three points out of a possible score of ten. His correct results included his date of birth and that 1939 was when World War II commenced, but mostly he was unable to respond to questions at all or made a guess which was wrong.

[57] Following that test, Dr Byrne administered a slightly more complicated test which is routinely used in the assessment of people who may have dementia, known as a "mini-mental state examination". Because one of the submissions made on behalf of the appellant suggested that it was significant that no similar test had been conducted during the charge period, it is relevant to mention that Dr Byrne's evidence was open to the construction that the only reason Dr Byrne administered this test was because "the Commonwealth Government of this country requires this test to be administered to people if one is to obtain permission to prescribe certain medications". That is to say, a view of the evidence available to the jury was that as a result of Dr Byrne's brief discussion with McFarlane and his administration of the "AMT" test Dr Byrne was quickly satisfied that McFarlane then lacked any real capacity to make decisions about his assets.

[58] Dr Byrne gave evidence, reading from medical records which he described, that well before McFarlane was admitted to the nursing home he had suffered a series of strokes. (Similar evidence had earlier been given by McFarlane's children and by Dr Reynolds.) It was Dr Byrne's opinion that these strokes had led before mid-2003 to the expressive dysphasia and dementia which he diagnosed in February 2007.

[59] In support of that opinion, Dr Byrne gave evidence from records in his possession that Dr Dunworth had earlier administered "ABM" tests and that McFarlane's results had been four out of ten on admission to the home in July 2003 and five out of ten on 2 September 2005. Dr Byrne described those as "very poor scores" and that any score of six out of ten or below was considered likely to be indicative of dementia.

[60] Dr Byrne concluded that before McFarlane was admitted to the nursing home in July 2003 his "strokes were building up and causing the brain damage which led to his dysphasia and dementia, but most of that seems to have occurred well before he got to the nursing home as far as one can tell."

[61] In the appeal the appellant's counsel emphasised the possible significance about what may have been a further stroke in January 2006 (McFarlane was hospitalised on 24 January 2006), that is to say after the end of the second charge period and before Dr Byrne saw McFarlane. The substance of Dr Byrne's evidence though was that although it was not possible to judge exactly how significant the ongoing effect of that stroke was, it was probably small. A "CT" scan did not show bleeding or a blood clot on the brain but it did show old infarcts - i.e., strokes - throughout the brain. Dr Byrne did agree that the January 2006 stroke might have led to a deterioration of McFarlane's score on the AMT test from five in September 2005 to three in September 2007, but it must be recalled that Dr Byrne's evidence of a score of five out of ten on that test was that it was "very poor" and "likely to be indicative of dementia"; furthermore, that evidence was significantly buttressed by the evidence of deficiencies in McFarlane's capacity in 2002 and 2003 that I mentioned earlier, particularly that of Harris and Dr Reynolds.

[62] Dr Byrne was cross-examined at length and to some effect, but he did not resile from the opinions I have mentioned.

[63] The overall effect of that and the other expert and lay evidence about limitations upon McFarlane's capacity which I have discussed was a matter for the jury. In forming views on that question, the jury was entitled also to take into account other features of the evidence of less direct relevance to the issue I have so far discussed.

[64] One feature of the evidence was the sheer magnitude of the amount of McFarlane's money taken by or given to the appellant. The jury was entitled to assess that in light of the evidence concerning the nature of the relationship between the appellant and McFarlane: for example, the jury might have accepted Lidster's evidence (and the similar evidence of a friend of the appellant, Bella Morales) that McFarlane behaved as though he were a teenager besotted with the appellant. That and other evidence was capable of lending support to one aspect of the defence case, that McFarlane's affection for the appellant explained the transactions; but the jury might instead have given it a very different complexion if (as the jury was entitled to do) it regarded the evidence of Smith, Harris, Dr Reynolds, Dr Byrne and (to a lesser extent) McFarlane's children as establishing that the appellant appreciated that McFarlane's mental capacity during the charge periods was very limited.

[65] There was also evidence given by Morales that the appellant said that she had formed a relationship with someone else (Ehsan Haidari) after the middle of 2002 (the appellant married him in November 2003); that the appellant asked Morales not to mention Haidari's first name because the appellant had given McFarlane a different first name; and that the appellant had told McFarlane (incorrectly) that Haidari was a relative. David McFarlane, his de facto Gwen Molloy, and Smith also gave evidence which suggested that the appellant deliberately concealed from McFarlane's children that their father had been admitted to the nursing home. According to Smith's evidence, she revealed McFarlane's whereabouts to David McFarlane after the appellant had told Smith that she (the appellant) did not want to tell McFarlane's children because "they would get all of Jim's money and the money was hers."

[66] In summary, there was a substantial body of evidence, including that of Dr Byrne, which was capable of being regarded by the jury as establishing that, despite some evidence pointing in the other direction, the appellant knew and took advantage of serious deficiencies in McFarlane's mental acuity and memory to acquire the series of "gifts" from him over both charge periods.

[67] Counsel for the appellant (who was not trial counsel) argued, however, that Dr Byrne's retrospective diagnosis of McFarlane's dementia and expressive dysphasia during the charge periods was inadmissible and that it was unsafe for the jury to rely upon it because of Dr Byrne's failure to identify precisely the foundational facts upon which his opinion was based and because some of that material had not been proved.

[68] It is unquestionably the law that expert opinion evidence is inadmissible if the opinion is not expressed upon a state of facts both identified and proved in evidence.[4]

[69] In this respect one particular argument made on behalf of the appellant was that, although Dr Byrne referred in evidence to his having in his possession police statements from Dr Reynolds and Dr Dunworth and a copy of an extract from the nursing home notes, he did not identify precisely what was within those documents and they were not all proved.

[70] It is correct that Dr Byrne explained that he had that material, but when he gave evidence of his retrospective diagnosis he limited the material upon which he relied to the notes of McFarlane's admission to the nursing home which were proved (and about which Harris gave the evidence I have mentioned[5]), Dr Reynolds' observations about McFarlane's confusion (which again was proved, as I have mentioned[6]) and the "AMT" tests administered by Dr Dunworth when McFarlane was admitted to the home on 14 July 2003 and again on 2 September 2005.

[71] Dr Dunworth's testing, although identified by Dr Byrne, was not proved otherwise than by the evidence of Dr Byrne that Dr Dunworth had conducted those tests (which Dr Byrne described) and that the results had been four out of ten on admission to the home and five out of ten on 2 September 2005.

[72] That evidence was inadmissible hearsay. The failure to prove it in an admissible form also rendered Dr Byrne's expert evidence inadmissible.

The effect of the admission of Dr Byrne's inadmissible evidence

[73] None of Dr Byrne's evidence was objected to by the appellant's trial counsel. That appears to have been a quite deliberate and considered decision. Dr Byrne's evidence was given after Dr Dunworth was called. The Crown prosecutor had opened Dr Dunworth's evidence as being to the effect that he performed a mental test. It was then discovered that Dr Dunworth, who was giving his evidence by telephone, did not have his records with him. The appellant's counsel participated in a discussion with the trial judge about whether or not it was necessary to adduce this evidence, observing that the "primary expert in respect of the assessment is Dr Byrne" and that the basis of Dr Byrne's report was "by reference to notes" which Dr Dunworth had made and particularly the results of the abbreviated mental tests performed by Dr Dunworth.

[74] The appellant's counsel indicated that he did not think the Court needed to hear from Dr Dunworth and he agreed that to the extent that Dr Dunworth's evidence formed part of the basis of Dr Byrne's report Dr Byrne could give that evidence. Subsequently when Dr Byrne was called, the appellant's counsel did not object to any of his evidence on the basis that Dr Dunworth had not been called to give evidence, even though the trial judge made it clear that Dr Dunworth could be recalled if necessary. Following Dr Byrne's evidence, the appellant's counsel said in terms that he did not require Dr Dunworth to be called. Even then, the trial judge excused Dr Byrne only on the expressed basis that he might be required again if Dr Dunworth were to give evidence and raised something relevant. Dr Dunworth was not required to give evidence. The topic was not mentioned again.

[75] In the cross-examination of Dr Byrne, the appellant's counsel sought to take forensic advantage of the results of Dr Dunworth's "Abbreviated Mental Test" performed upon McFarlane on his admission in July 2003 (when McFarlane scored four out of ten) and again later in September 2005 (when McFarlane scored five out of ten). One of the points flagged in the cross examination was that the latter score was only just below the score of six: reference was made to the fact that there was a margin of error in such simple tests. Dr Byrne had earlier said that anything below six was indicative of dementia. It was put to Dr Byrne and he agreed that he was more qualified than Dr Dunworth in this field. Some indication that the appellant's counsel sought a forensic advantage by his failure to insist upon Dr Dunworth being called also appears from the cross-examination which elicited admissions to the effect that potential sources of errors in this testing included the test being administered by a person (meaning Dr Dunworth) unfamiliar to McFarlane. That the defence sought to take advantage of the evidence in this way (an advantage that might well have been eroded had Dr Dunworth been recalled) also appears clearly enough from the trial judge's reference to defence counsel's submission on the issue in the summing up.

[76] The appellant's counsel also did not object to Dr Byrne's opinion evidence on the basis that he might have relied also upon the police statements from Dr Reynolds and Dr Dunworth and some other information possibly in the nursing home notes which were not in evidence (although my view is, as I have indicated, that Dr Byrne did identify the particular matters upon which he relied for his retrospective diagnosis.). This conduct is similarly explicable on the basis that taking those points might well have led to the prosecution adducing further evidence formally proving that material and removing any doubt as to which parts of it Dr Byrne relied upon. Again, such a course was fraught with potential forensic disadvantages for the appellant.

[77] Because Dr Byrne's evidence was not objected to, it was not open to the appellant to contend that there was a "wrong decision of any question of law" in terms of s 668E(1) of the Criminal Code:[7] no such argument was advanced. The only question is whether the irregularities in Dr Byrne's evidence of which the appellant complains have given rise to a "miscarriage of justice".

[78] If the appellant does not establish that, on an objective analysis of the record, an irregularity in the trial might not have been caused by a deliberate and considered decision by trial counsel for a legitimate forensic purpose then it is open to conclude that there was no such miscarriage of justice, at least where the potential forensic advantage was not insignificant in comparison with the adverse effect of the irregularity.[8] That principle applies in a case, such as this, where the complaint is that inadmissible evidence was wrongly admitted at trial.[9]

[79] For the reasons I have given, the appellant's counsel's failure to object to the evidence at trial was clearly explicable on the basis that it avoided the significant forensic disadvantages that might have flowed if Dr Dunworth were recalled to give evidence about deficiencies in McFarlane's capacity, if Dr Byrne was asked more questions about the evidence he relied upon for his diagnosis, and if that evidence was further emphasised by the Crown embarking on the apparently formal exercise of proving all of the relevant medical records.

[80] This is not a case like, for example, R v Fowler, [10] in which the facts upon which the expert's opinion was premised were obscure. In such a case there may be a danger that a jury, hampered in its ability to analyse the expert opinion, will attribute undue weight to it.[11] Here, although some of the facts upon which Dr Byrne's opinions were premised were not proved by admissible evidence, the essential integers underlying his opinions were clearly identified in his evidence in a way which permitted the jury to perform its function of determining the facts.

[81] The trial judge emphasised in her Honour's directions that the jury, as the sole judge of fact, was bound to assess Dr Byrne's evidence with reference to the facts and accept or reject his opinion or give such weight to it as it saw fit. Her Honour directed the jury to find the appellant not guilty unless the Crown had satisfied it beyond a reasonable doubt both that the appellant acted dishonestly and (as part of the Crown's burden of negativing a defence of honest claim of right) that she did not honestly believe herself entitled to do what she did. No complaint is made as to the particular terms of those directions or otherwise in relation to any aspect of the summing up.

[82] For the reasons I have given no miscarriage of justice resulted from the admission of Dr Byrne's inadmissible evidence and, as I earlier indicated, there was a substantial body of evidence upon which it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

[84] MACKENZIE J: Fraser JA and the President have provided, in their reasons, a comprehensive summary of the evidence relevant to the only significant issues in this appeal, which relies on the argument that the verdict of the jury is unsafe and unsatisfactory.

[85] With regard to the appellant's argument that the evidence of Dr Byrne was inadmissible, I agree with Fraser JA's analysis and also with his conclusion that the defence acquiesced in and chose to take forensic advantage of the absence (for reasons explained by Fraser JA) of evidence of Dr Dunworth himself concerning the results of tests performed by him, but which were recorded in notes relied on by Dr Byrne. I am satisfied that no miscarriage of justice was caused by technical inadmissibility in the circumstances.

[86] The major issue concerns the element that the appellant "dishonestly" gained sums of money of a value of more than $5,000 during two consecutive periods, differentiated as periods between 18 September 2002 and 15 July 2003, and between 14 July 2003 and 8 April 2004. The date of 14 July 2003 was when the complainant entered a nursing home. The dishonesty was particularised as deriving from possible alternative views of the evidence. The first was that the complainant did not have the mental acuity or sufficient memory to properly make gifts to the appellant or understand the nature and extent of his remaining assets, and that she was aware of that. The second was that he had a significantly lower than normal mental acuity, that she was aware of this and had deceived him about his family and her affection and intentions towards him which, when being made to a man of at least reduced mental acuity, was dishonest.

[87] There was conflicting evidence about the extent of the complainant's degree of mental acuity during these periods. Some was from family who had no medical expertise but had the advantage of varying degrees of knowledge of the complainant's personality and of changes in it. Some were medical practitioners who had treated or examined him. There was also a registered nurse who was the clinical manager of the care facility into which he was placed and who had, at the time of his admission, almost a decade's experience in aged care nursing. She was able to give evidence of the complainant's mental capabilities from the time of his admission. There was also evidence from solicitors who had dealings with the complainant in the period shortly before the period alleged in the first count.

[88] The exhaustive analysis of all of these witnesses' evidence in the reasons of the President and Fraser JA makes it unnecessary for me to repeat, in my own way, the strengths and weaknesses of evidence of individual witnesses except where necessary to explain my conclusions.

[89] With regard to the strength of the evidence, the evidence with regard to the period in count 2 has the added dimension to it that there is evidence from the experienced aged care nurse about the complainant's condition on admission to the nursing home, and that Dr Dunworth, the general practitioner who visited it had, according to the record subsequently relied on by Dr Byrne, administered an abbreviated mental test which was consistent with dementia shortly after the complainant's admission.

[90] On the other hand, there was more conflict in the evidence concerning count 1. It was around the beginning of the period particularised in that count that the various solicitors formed the view that the complainant had the capacity to execute a power of attorney and a will. As against that, in July 2002, the complainant's GP noticed significant change in him following a series of strokes and found him very vague. In November 2002 she saw him again and referred him to hospital after another possible mini-stroke. At that immediate time, she could not assess his mental state because he could not communicate.

[91] The evidence from the non-expert witnesses was, in parts, capable of supporting the propositions that he was confused and, in others, that at least in the early part of the period, he may have maintained sufficient capacity to understand his financial affairs. To the extent that family members gave evidence, the usual caution that has to be exercised in cases of this kind with regard to objectivity also has to be borne in mind. However, there was other evidence from which it could be inferred that the condition seen on admission to care would have pre-existed for some time, bringing it within the period alleged in count 1.

[92] With regard to the merits generally, three things can be said. The first is that it was the jury's function to consider how any conflicts in evidence should be resolved. They had the distinct advantage of seeing or hearing the witnesses give their evidence. Secondly, no complaint is made by the appellant about the way the issues were left to the jury by the learned trial judge. The third is that the sum alleged to have been gained under count 1 is over $170,000. In the absence of the jury at the beginning of the fourth day of the trial, the Crown Prosecutor made it plain in answer to a question from the learned trial judge that the Crown case was not limited to proof of incapacity throughout the whole period. The jury might conclude that the complainant lacked the necessary degree of mental capacity to make decisions concerning the disposal of his assets for only part of that period. If that were the case, if they were satisfied that, during the period of incapacity as to which they were satisfied, over $5,000 was obtained dishonestly, it would provide a proper basis of a conviction for the circumstance of aggravation alleged in count 1. That is correct (R v Lindsay [1963] Qd R 386). The formal admissions made by the accused as to transactions in the months close to the end of the period in the first indictment, when there was substantial evidence that the complainant would have been suffering from dementia, would provide sufficient evidence of a value of over $5,000, to establish the circumstance of aggravation.

[93] I have read the evidence of the relevant witnesses. The wide range of considerations analysed in the reasons of the President and Fraser JA, which I agree could have satisfied the jury of guilt beyond reasonable doubt, demonstrates that on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty (MFA v R [2002] HCA 53; (2002) 213 CLR 606).

[94] I agree that the appeal against conviction should be dismissed.**

[1] Cf R v Lindsay [1963] Qd R 386 at 400-401 (Hart J, Philp ACJ agreeing).

[2] It was not contended at trial or on appeal that this contravened the rule against duplicity: see ss 567(3) and 568(3) of the Criminal Code.

[3] MFA v R [2002] HCA 53; (2002) 213 CLR 606, at 614-615, 623-624; [2002] HCA 53; M v R [1994] HCA 63; (1994) 181 CLR 487, at 493; [1994] HCA 63.

[4] See, eg_, Makita (Australia) Pty Ltd v Sprowles_ [2001] NSWCA 305; (2001) 52 NSWLR 705 per Heydon JA , particularly at [85] and at [70] quoting from the judgment of King CJ in R v Fowler (1985) 39 SASR 440 at 442, 443; R v Ping [2005] QCA 472; [2006] 2 Qd R 69 per Chesterman J at [43]-[46], citing Makita (Australia) Pty Ltd v Sprowles at 729-742, Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 648-649; [1961] HCA 65, and Gordon v R (1982) 41 ALR 64. The facts relied upon by the expert need not be identical with those proved but must be sufficiently like them if the opinion is to be probative: Makita (Australia) Pty Ltd v Sprowles at [64] - [66]; R v Ping at [44].

[5] Dr Byrne said of the notes made in the nursing home that, though they were not made for medico-legal purposes and were less technically sophisticated than what he might have liked to have seen, "they were entirely consistent with the nature of the problems that presented to me when I saw him in my office".

[6] Dr Byrne described Dr Reynolds' notes as indicating that McFarlane suffered a series of strokes from April 2002 which left him confused in time and place and with persisting expressive dysphasia.

[7] See Suresh v R [1998] HCA 23; (1998) 72 ALJR 769 per Hayne J at [65]; [1998] HCA 23.

[8] TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 at [25]- [27]; [33]; [107]-[108]; [2002] HCA 46.

[9] Ali v R (2005) 79 ALJR 662; [2005] HCA 8 at [9], [23] - [26], [99]; Suresh v R at [23], [56]-[58]; [65]; R v S [2002] QCA 167 at [19]- [20].

[10] R v Fowler (1985) 39 SASR 440 at 442 - 443 per King CJ.

[11] Cf Lewis v R [1987] NTCCA 3; (1987) 88 FLR 104 at 123; Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 645