R v Todo [2004] VSCA 177

2. I have had the advantage of reading, in draft form, the reasons for judgment which Charles, J.A. proposes to deliver in this matter. For the reasons which his Honour gives, I agree that the application for leave and the appeal against conviction should be allowed, the convictions quashed, and that a new trial should be ordered. I have no doubt that the Director will have regard to the length of time which the appellant has already spent in custody, her lack of previous convictions and the views which Charles, J.A, has expressed about the sentence imposed by the trial judge (with which I agree), in determining whether or not a re-trial of the appellant is necessary.

7. Save for one small matter I agree entirely with the judgment Charles, J.A. is about to deliver. The one small point is that I continue to resist the description of evidence of consciousness of guilt as "post-offence conduct", or, more precisely, that the one is a synonym for the other. Undoubtedly evidence of lies and other conduct which evidences a consciousness of guilt on the part of an accused will be seen only in acts performed by the accused after the alleged crime has been committed. But the reason why special rules, requiring what has been called an Edwards direction, have been devised for their consideration by the jury is that acts evidencing such a consciousness have, as it were, a "sting in the tail". The only element to which they are relevant is mens rea or intent and then only because they involve or connote some behaviour from which it may be inferred that the accused is admitting guilt of the offence charged. Evidence may be led as to a variety of events that occur after the commission of an offence but which merely assist the jury in drawing inferences as to what in fact took place. They are sometimes described as retrospectant evidence, some useful discussion of which appears in Cross on Evidence (loose leaf Australian edition) paras.1170-1250. Simple examples may be given. In robbery trials evidence is frequently given that the accused was wearing particular clothing

after the event or carrying a particular bag, in each case said to be the same as that observed at the scene of the crime. That conduct may form part of a circumstantial case but it involves no question of implied admissions. Again a most common means of proof of theft or handling is the finding of the stolen goods some time later in the hands of the accused. I do not understand it ever to have been suggested that an Edwards direction should there be given. I had originally thought that the evidence of spending from the bank account might here have been justified on some more general ground, in order to prove the applicant had taken the money for her own use, but that was never truly in issue and prosecuting counsel saw fit to try to describe her behaviour in terms of consciousness of guilt or something very close thereto. I agree that it is now irrelevant and should not be led for the latter purpose.

12. The applicant on 25 August 2003 pleaded not guilty in the County Court at Melbourne to a presentment alleging one count of obtaining property by deception contrary to s.81(1) of the Crimes Act 1958 and one count of obtaining a financial advantage by deception contrary to s.82(1) of the Act. The maximum penalty applicable to both sections was ten years' imprisonment. The trial commenced on 25 August and concluded on 28 August. On 28 August the applicant was found guilty on both counts. After a plea in mitigation, the judge sentenced the applicant to be convicted and sentenced to be imprisoned for two years and six months, and fixed a non-parole period of 18 months. Subsequently, the parties realised that his Honour had not sentenced the applicant on each count, having instead imposed only a total sentence. The matter was mentioned before his Honour on 29 October and the applicant was sentenced on count 1 to be imprisoned for two years and six months, and on count 2 to be imprisoned for six months. The total effective sentence remained two years and six months' imprisonment.

16. The applicant now seeks leave to appeal against her conviction on substituted grounds alleging -

1. The judge failed properly or at all to direct the jury on its use of the applicant's alleged post-offence conduct.

2. The judge failed adequately to direct the jury, and thus erred in his directions to them, on the mens rea of the offences charged. In particular the judge:

(a) failed or failed properly, to direct that the element of dishonesty was a distinct one and that it was possible for the applicant to have obtaining property by deception and to have done so without legal dishonesty - believing that she had a legal right to it;

(b) failed properly to relate the relevant evidence to the law on that issue.

We gave the applicant leave to argue the proposed substituted grounds, reserving the question whether leave to amend would be given until judgment. The applicant also seeks leave to appeal against sentence on the ground that in all the circumstances the sentences, total effective sentence and non-parole period were manifestly excessive.

25. On 20 September 2000 the applicant and one Ben Samuel, a business associate of hers, went to the premises of the Advantage Credit Union. The applicant had previously spoken to a mobile sales representative hoping to obtain a loan from the credit union, but the union had refused her request for a loan. The Crown alleged that when the applicant arrived at the offices of the credit union she showed a staff member a statement of an account held at that branch by one Maria Mijic. The account in fact belonged to her ex-mother-in-law and had a credit balance in excess of $200,000. The documentation merely recorded that the account was in the name of "M. Mijic". The applicant's married name was in fact Masako Mijic. The Crown contended that the applicant deceived the bank staff into believing that the M. Mijic who was the owner of the account was in fact herself. The applicant, who was then in financial difficulties as a result of what she maintained was an unfair matrimonial settlement with her former husband, Djuro Mijic, was allowed to withdraw $200,000 and arranged for the balance ($24,145.44) to be transferred to her account with the Bank of Melbourne. She also requested that the bank change the address for correspondence on the account. The applicant subsequently spent the funds she thus received between 27 September and late October 2000 in various ways, including the purchase of an inner-city unit, the repayment of moneys owing to AGC, sending money to Iran and Japan, and the payment of everyday living expenses. The applicant's former husband, who had the right to operate the account on behalf of his mother who lived overseas, noticed that he had not received a statement in November 2000 and raised the alarm with the credit union. A search warrant was then executed by police at the applicant's premises and a number of documents relating to the offences were seized.

29. Before any evidence was called, there was legal argument directed to the subject of post-offence behaviour. Counsel for the applicant submitted that post-offence behaviour in the form of the applicant's disbursal of the funds obtained by her should not be admitted into evidence, arguing that it was not relevant, and that such evidence would be prejudicial without having probative value. The prosecutor submitted that such evidence was relevant to the element of dishonesty and went to motive. The judge ruled that evidence of post-offence behaviour by the applicant was admissible.

32. The first prosecution witness was Djuro Yuri Mijic, the applicant's former husband. Mijic said that he came to Australia from Yugoslavia in 1970. After working as an electrician for ten years he bought a restaurant in Toorak Road, South Yarra. He met the applicant in 1981 or 1982. In late 1982, the applicant, having lived in Japan for some months, returned to Australia for a visit. In early 1983 Mijic and the applicant married to enable the applicant to stay in Australia. During 1983 and 1984 she ran her own business, which was called New Tokyo, and Mijic said that he gave her financial assistance to assist in setting up her business. In 1985 the applicant and Mijic commenced to live together as husband and wife and thereafter three children were born. In 1994 Mijic purchased a property at 4 Glover Court, Toorak and the family moved there. By 1998 their marriage was in difficulties and after the applicant returned from an overseas trip that year she told Mijic she wanted a divorce and the sum of $50,000. He said that on 25 February 1999 a settlement was reached and consent orders filed with the Family Court. As part of that settlement Mijic paid the applicant $74,000. The parties were divorced shortly after the property settlement was reached.

35. Mijic said that in 1986 he opened an investment account at the then Victorian Credit Union on behalf of his mother Maria Mijic who lived in Yugoslavia. An amount of $101,923.08 was deposited on the opening of the account. The money was left in the account and was rolled over until by September 2000 its balance was roughly a quarter of a million dollars. Mijic said he had three other accounts with the same credit union in various family names. Mijic said that in November 2000 he noticed he had not received a statement relating to the account in his mother's name and made enquiries with the credit union. He was then informed that all the money in his mother's account was gone and the address for the account had been changed to Exhibition Street in the city. The witness contacted the police.

38. Under cross-examination Mijic agreed that in May 2000 he filed a financial statement as part of the matrimonial property proceedings with the applicant in which he declared his income to be $100 per week. In August 2000 he made a further financial statement in which he declared his income to be $310 per week, his assets to be $340,500 and his liabilities to be $130,000. He agreed that at that time he had been living for eight years in the house in Glover Court, Toorak. Mijic agreed that he had established an account by himself in the name of the applicant, as Masako Mijic, that she knew about it, and that he had told her about that account.

41. Alan Keith Gibson, a mobile lender, said that on 18 August 2000 he received a loan referral to contact Masako Mijic as a prospective client. He spoke with her in August 2000 and they discussed the possibility of her obtaining a loan from Advantage Credit Union. During these discussions the applicant used both the names Todo and Mijic. The applicant was seeking $50,000 essentially because of the fact that she had left the matrimonial home and did not have any funds or assets readily available. The application for the loan was declined on the basis that she did not have any income. Shortly afterwards the applicant contacted Gibson again, on this occasion seeking $30,000. The applicant told Gibson that in the previous year she had earned $110,000 from musical promotions, but was unable to produce any tax returns to substantiate this assertion. Gibson said that during the course of negotiations for a loan application, he had a telephone call from the applicant in which she told him she was going into the credit union, because she had some funds she would be able to draw upon. Gibson told the applicant to ask for Sue Reynolds at the credit union. Under cross-examination Gibson said that when the applicant produced identification in order to open an account for membership, he was shown her learner's permit, Medicare card and Australian passport all in the name of Masako Todo. He agreed that she signed in the name Todo and he did not recall her using the name Maria.

44. The next witness was Susan Anne Reynolds who said that in September 2000 she was employed by the Advantage Credit Union as a lending services manager. In late September 2000 she received a call from Gibson, the previous witness, regarding a potential loan application. Gibson told Reynolds he had been contacted by a high net worth customer who wanted to borrow money, saying that there were accounts at the credit union which had a high dollar value in them, but he said that due to Family Court settlements the customer might not have access to them at that time. Reynolds then telephoned the applicant and spoke to her about her need to borrow money, and suggested that the applicant meet her at the credit union. She said that the applicant gave details of accounts held at the credit union. Reynolds then looked at an account in the name of M. Mijic which had a substantial amount of money in it. She said that the applicant gave her the account number for the account in the name of M. Mijic and asked if she could get money from that one. Reynolds said that the applicant told her that the account numbered 110981 was her account. The next day the applicant came to the credit union office with one Ben Samuel. She produced statements of the account from which she ultimately withdrew money, in the name of M. Mijic. She also had a statement showing the balance of the account at about $220,000 and a copy of a solicitor's letter. They spoke about a loan, which the applicant said she needed to buy property. Reynolds told the applicant she could not approve the loan as she had no proof of income. Reynolds told the applicant that she needed to check with the union's internal auditor whether the account in the name of M. Mijic was frozen by the family law proceedings. In relation to this account, Reynolds said that the applicant asked if she could get money from it and told Reynolds that it was her account. Reynolds then made enquiries as to the status of the account, and finding that it was not involved in the property settlement told the applicant that she could have the money. The applicant then asked to take $200,000 that day. Reynolds arranged for the preparation of term deposit redemption documentation and it was signed by the applicant initially under the name Masako Todo. Reynolds then told her she needed to sign in her married name, and a cheque was issued to Masako Mijic [it was actually made payable to "M. Mijic"], and the balance was transferred to another account held in the applicant's name at the credit union. Reynolds said that at the same time the applicant requested the address of the account be changed to Mrs M. Mijic, c/o Ben Samuel, 183 Exhibition Street, Melbourne, so that her husband would not know she had taken the money out. Reynolds also said that she carried out a signature check with the documents on the file and that the applicant told her that she was Maria Mijic, and that Masako was Japanese so she used the name Maria when she was married.

47. Under cross-examination Reynolds agreed that she may have seen a learner's permit in the name of M. Mijic produced as identification. She agreed that on the account documents, the name M. Mijic appeared and there was no reference to the full Christian name Maria. She agreed that in her statement to police she did not say that the applicant had told her she used the name Maria when she was married.

50. Benjamin Kenneth Samuel, a real estate agent, gave evidence for the prosecution. He said that he met the applicant in 2000, to discuss rental property. She rented a unit at 181 Exhibition Street on a short-term lease on the basis that she might buy another unit in the building. She signed documents of purchase relating to a unit, conditional upon obtaining finance. She then asked Samuel to accompany her to the Advantage Credit Union to assist her in obtaining finance. She said she was interested in obtaining a loan for the purchase of a unit valued at about $400,000. Samuel said that they spoke to a staff member named Susie [the previous witness, Reynolds] who told the applicant that a loan of that magnitude would not be granted after which mention was made of a smaller loan of $50,000 to cover some existing debts that the applicant had at that time. Reynolds went to the files to check the general situation of existing accounts and then asked the applicant why she wanted to borrow money when she had an account with in excess of $200,000 in it. According to Samuel the applicant asked what she had to do to obtain the money and Reynolds told her she had to sign some documentation. The applicant then signed the document and Reynolds took it away to verify the signature. Samuel did not recall the applicant saying anything to the bank officer about the account that had all the money in it, and whilst she did have some statements he said that they did not relate to the account from which the money was withdrawn. Samuel also said that the applicant never said that her name was Maria Mijic.

53. Evidence was also given by Angela Cox, a sales relations manager employed by the Advantage Credit Union, Sean Joseph O'Gorman, an investigations officer, Radojka Brankovic, the sister of Djuro Mijic and a paediatric nurse, Masoud Jafarzadeh and Detective Senior Constable Kyle Simpson. It is unnecessary to refer to the evidence of these witnesses. There was evidence before the court that the applicant had no prior criminal history. A record of interview had been conducted by police with the applicant, but no comment answers were made to all questions put to her other than formal ones.

56. No evidence was called on behalf of the applicant. Counsel for the applicant submitted that there was no case to answer on the basis that there was no evidence that a deception had been practised by the applicant upon the relevant credit union officer. However the judge ruled that there was evidence upon which a reasonable jury properly instructed could convict.

60. For both counts 1 and 2, the Crown relied on two representations alleged to have been made falsely by the applicant, (a) that she was Maria Mijic and (b) that she was the holder of an Advantage Credit Union account No. 110981 in the name of Maria Mijic and was entitled to the funds contained within the said account. When the judge in his charge came to deal with count 1, his Honour said -

"In short, the Crown must prove that the accused obtained the cheque in the case of count 1, as the result of a false statement made by her, in other words, obtained it by deception. Then the Crown must prove that the accused intended when she got the cheque to keep it. That is, she did not intend to return it. And there is no contest about that. And finally, the Crown must prove that the cheque was obtained dishonestly, that is, that the accused knew she had no legal right to that cheque. Belief in a moral right or a social right is not a defence. So, in short, the Crown must prove beyond reasonable doubt in respect of count 1, that the accused obtained a cheque; that it did not belong to her; that she obtained it by deception; that she obtained it dishonestly and intended to keep it."

The judge then referred to count 2 saying that the crime was very similar to count 1, the only significant difference being the thing obtained. The judge then continued -

"The issue in this case is, if I may say so, a very narrow one. There is no dispute that the accused attended the premises of the bank on or about the date alleged, and obtained both the cheque and the transfer of funds into her account. The issue is whether that cheque and transfer were obtained by her dishonestly in the manner alleged, that is, as a result of the lies told by her, specifically those set out in sub-paragraphs A and B of counts 1 and 2 on the presentment, that is to say, that she was Maria Mijic and that she was the holder of the account and she was entitled to the funds within it." (Emphasis added.)

His Honour then turned to a recapitulation of the evidence, beginning with that of Djuro Mijic.

67. No exception was taken by counsel for the applicant. The prosecutor, however, raised with the judge whether the submission he had made as to the significance of post-offence conduct required the judge to give special directions as to the proper use of post-offence conduct, and drew his Honour's attention to the decision of R. v. Nguyen[1]. His Honour gave a short redirection.

70. Later the jury asked a question, "Does the prosecution need to prove both points (a) and (b) or either point (a) or (b)?" To this his Honour responded that the jury need only be satisfied of one of the two misrepresentations alleged, although all the jurors had to be satisfied beyond reasonable doubt that that particular representation had been proved beyond reasonable doubt.

74. Mr Kassimatis for the applicant argued that though the charge contained no misdirection, the circumstances of the case called for further direction on the elements in relation to deception and dishonesty. He put it that the Crown relied on two alleged misrepresentations. The allegation that the applicant had represented herself as Maria had been directly contradicted by the witness Samuel, and Reynolds' evidence that the applicant had represented herself as Maria should have been regarded by the jury as questionable, both because her statement to the police contained no such assertion as well as the fact that Reynolds had been forced to provide an explanation for her own conduct which arguably had been negligent in suggesting to the applicant that she could have resort to the contents of the account. Mr Kassimatis submitted that the jury's question indicated their apparent acceptance of representation (b) rather than representation (a), since, if they had accepted that the applicant had represented herself as Maria Mijic, it was unlikely that they would have been in any doubt as to either representation. On this basis, the jury's apparent acceptance of representation (b) was to a degree supportive of the defence case, and fitted best with its reliance on innocent deception or mistake. Accordingly, the judge should have directed, if not during the charge then after the jury's question, that deception in fact is not in law predicated on a dishonest mind; that the former does not entail the latter; and that the Crown relied upon a different evidentiary basis to support deceit and dishonesty respectively. He argued that the conceptual distinction between deceit and dishonesty should have been better identified and emphasised. The distinct evidentiary bases relied upon by the Crown to establish each element should have been related to the law and to the jury's separate task on each. He submitted that the judge's directions were in fact counterproductive of that objective and rolled up the jury's tasks into a single narrow issue.

77. Mr Kassimatis next argued that in the second passage in the judge's charge quoted in par.[16] above, his Honour positively misled the jury by conflating the two issues into a single question. His Honour there referred simply to the alleged deception, and may well have left the jury with the impression that provided a deception was proved that was the end of the matter, and dishonesty was thereby established.

81. Mr McArdle for the Crown in response submitted that it was open to the jury to accept Reynolds's evidence that the applicant represented that the account was hers. He submitted that in the absence of evidence from the applicant on this issue it would be surprising if the jury concluded other than that such representations were made. He submitted that it was hard to identify the defence actually made by the applicant pointing to the fact that the applicant had neither given evidence nor provided any answers in her record of interview to support a defence of lack of dishonesty. He submitted that there had been a sufficient direction on dishonesty given.

85. Section 81(1) of the Crimes Act 1958 provides that "A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of an indictable offence." Section 82(1) makes like provision for the obtaining of any financial advantage.

88. The presentment alleged, in conformity with ss.81(1) and 82(1), that the applicant "dishonestly obtained ... by deception" either property belonging to another (count 1) or a financial advantage (count 2). In England, courts have adopted the view that the word "dishonestly" in comparable legislation has a residual meaning, and that the meaning is to be determined by the jury expressing the moral standards of the ordinary person. In R. v. Feely[2], Lawton, L.J. said -

"Jurors, when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary decent people. In their own lives they have to decide what is and what is not dishonest. We can see no reason why, when in a jury box, they should need the help of a judge to tell them what amounts to dishonesty."

Then in R. v. Ghosh[3] the Court of Appeal added to the test for dishonesty by requiring that the accused must also realise that the conduct was "by the ordinary standards of reasonable and honest people" dishonest.

93. Victorian courts have not accepted this approach in the context of ss.81(1) and 82(1) of the Crimes Act. In R. v. Salvo[4] the accused was charged with obtaining property by deception. He relied on the defence of bona fide claim of legal right. Three members of the Full Court considered the meaning of the word "dishonestly" in this context. Fullagar and Murphy, JJ. (McInerney, J. dissenting) held that the test in Feely was not a correct statement of the meaning to be given to the word "dishonestly" in s.81. Their Honours held that the word was not used, in the context of s.81(1), in its ordinary sense but in a special and technical sense, and that a claim of legal right negated the existence of "dishonesty" for the purposes of an offence under s.81. Murphy, J. said[5] -

"If the jury gained the impression from the judge's charge that in deciding what was in the accused's mind they should simply rely on the fact that he `did make the false representations that the cheque would be met', then in my view, in the circumstances of the case, they would have been acting under a misapprehension. For the deception was admitted. The accused admitted that he performed it for the purpose of obtaining possession of the car and he succeeded in his purpose. The question always remained, was the obtaining by deception done dishonestly, and, up to this point in his charge, the learned trial judge had not given the jury any express assistance as to what they should consider in arriving at an answer to that question. Up to this point, the jury could have been misled inferentially into thinking that they should have regard only to the fact that the accused admitted making the false representation to enable them to decide whether they were satisfied that he acted dishonestly. But his Honour continued: `It is not to the point for you to say - each of you to yourself - "Would I have acted in that way? Would I, if I had done that, have regarded myself as acting dishonestly?" That is not the point. The point is that you must determine are you satisfied beyond reasonable doubt that the accused man knew that he was acting dishonestly in doing what he did? And that is the crux of this case; ...".[6] (Emphasis added.)

97. The reasoning in Salvo was applied in R. v. Brow[7] and in R. v. Bonollo[8]. In Peters v. The Queen[9] the High Court considered the element of dishonesty in the trial of an accused charged with conspiracy to defraud. Gaudron and Toohey, JJ. distinguished the Victorian cases just mentioned, saying that they should be confined in their application to offences against statutory provisions in which the word "dishonest" was held to have been used in a special sense.[10] Professor Williams has argued[11] that the approach of cases such as Peters has significantly undermined the standing of the Victorian decisions based on Salvo and that these authorities are open to further review. But in McLeod v. The Queen[12] the High Court considered a charge under s.173 of the Crimes Act 1900 (N.S.W.) that a director of a body corporate fraudulently took or applied property of the body corporate for his own use or benefit. All members of the Court mentioned the line of authorities commencing with Salvo without any suggestion that the Victorian authorities are wrongly decided.[13]

100. In the present case the judge was accordingly obliged not only to tell the jury that the Crown had to prove that the money had been obtained dishonestly by the applicant in the sense that she knew she had no legal right to it, but also to give them some assistance by relating the facts to the law and the facts and issues raised by counsel to the actual charges.[14] In my view, with respect, his Honour did not do so. The judge gave correct directions as to the law in the first passage quoted above, as Mr Kassimatis conceded. But, shortly afterwards in the second passage quoted in [16] above, his Honour described the issue as a very narrow one, and said that the issue was "whether the cheque and transfer were obtained by her dishonestly in the manner alleged, that is as a result of the lies told by her ... that is to say, that she was Maria Mijic and that she was ...". In so doing, his Honour, with respect, not only failed to give the jury assistance as to what they should consider amounted to relevant dishonesty, but also, I think, is likely to have left the jury considering that proof of dishonesty was established if the jury accepted that the applicant told the jury that she was Maria Mijic or that she was the holder of the account and entitled to the funds within it.

103. The applicant's defence was not, as Mr McArdle contended, easy to identify in the absence of evidence or an account in a record of interview. But in opening, her counsel had said[15] that the applicant had gone to the bank and had made no misrepresentations and furthermore that she believed she was entitled to the funds.

106. The Crown case depended largely upon whether the jury accepted the evidence of Reynolds, especially her assertion that the applicant called herself Maria Mijic, and to a lesser extent that of the applicant's former husband. Particular emphasis was placed on Exhibit 8, the redemption document in which her signature was first written as "Masako Todo", but, at Reynolds' request, later changed to "Masako Mijic". Insofar as emphasis was placed on what had been said by Djuro Mijic in evidence, the jury would have been entitled to have reservations as to its truth and accuracy. Defence counsel sought in cross-examination to show that Djuro Mijic was a man of considerable wealth who had owned a restaurant in Toorak Road, South Yarra for a number of years, had lived in a house in Glover Court, Toorak for eight years, and had access to large sums of money in a number of accounts with the Advantage Credit Union. Exhibit 5, a letter from the applicant's solicitors, Marshalls & Dent, dated 1 September 2000, showed that in proceedings in the Family Court there were three accounts in the name of the Mijic family which it was suggested Djuro Mijic controlled, having a total in excess of $623,000 contained in them. Mijic on the other hand by his financial statements to the Family Court on 8 May 2000 may well have been thought to have been falsifying his financial status with the purpose of reducing any monetary settlement he might be required by the court to make to his former wife.

109. Djuro Mijic's evidence showed that the family dispute between himself and the applicant led to them parting in 1998, followed by the making of consent orders in the Family Court in which the applicant received $74,000. She became very dissatisfied with that amount, and the jury would have been entitled to take the view that it was plain that her dissatisfaction arose from her realisation that her husband appeared to have large sums of money available to him in accounts, while he lived in a house in Toorak and ran a restaurant. Djuro Mijic had, as I have said, a number of accounts with the Advantage Credit Union, which had been frozen by an order of a registrar in the Family Court. It is important to bear in mind that Mijic said he had set up an account in the name of the applicant and that he had told her of this fact. Examination of the statement of account no. 110981 with the credit union (exhibit 6) shows that the account holder's name appears as "M. Mijic", which would have been, of course, the correct description of the applicant as the wife of Djuro Mijic.

112. The evidence given by Gibson showed that the applicant wanted a loan because she had inadequate funds. His evidence was that she said to him that she had funds with the Advantage Credit Union and wanted to obtain a loan. The evidence of Reynolds on the other hand also showed that the applicant contacted her first about a potential loan, wanting to borrow. It was said that she might not have access to funds because of the proceedings in the Family Court. Reynolds had been made aware of the letter of 1 September 2000 from Marshalls & Dent which showed large sums held by the Advantage Credit Union which were in dispute on 1 September 2000. Reynolds looked in the accounts and found one in the name of M. Mijic which had substantial moneys in it. According to Reynolds the applicant asked if she could get money from the account in the name of M. Mijic and Reynolds told her that she could have the money. All of this evidence was entirely consistent with the applicant having believed that the money in account no. 110981 was indeed hers, her former husband having told her that he had set up an account in her name.

116. In these circumstances in my view it would have been open to the jury to find that the applicant did misrepresent to Reynolds that she was the owner of the account owned by Maria Mijic, but retain a reasonable doubt on the ground that the applicant believed she had a legal right to the funds in the account. The jury did not, for the reasons I have already given, in my view receive adequate assistance to consider the separate question whether the applicant acted dishonestly. Notwithstanding the absence of any exception, the applicant did, I think, lose the protection that a full Salvo direction would have provided, and thus the possibility of an acquittal. Accordingly, ground 2 has in my view been made good.

120. Ground 1 complains that the judge erred in failing to direct properly or at all in relation to the applicant's alleged post-offence conduct. During the charge the judge said of the prosecutor's final address that -

"[The prosecutor] said that the production of the bank statement in the name of Maria Mijic, of itself, constituted a false representation given the circumstances of its production, as did her signing of the redemption form to get the money. You should accept that the accused told Ms Reynolds that Masako Todo and Maria Mijic were one and the same person. He said that the only reason she could have had to change the address to which further statements on that account were to be sent were to conceal her wrongdoing, and if she really believed that she is entitled to that money, why would she take steps to conceal her withdrawal of it. Further, said [the prosecutor], the sheer speed of the spending, $225,000, indicates that the accused knew full well that she wasn't entitled to that money and was seeking to frustrate the recovery of it. Where Mr Samuels' evidence does not agree with that of Ms Reynolds, you should, says Mr Armstrong, prefer that of Ms Reynolds."

124. Defence counsel took no exception to the judge's charge. The prosecutor however submitted that the judge in summarising his address had referred to the two items of post-offence conduct, the changing of the address for the bank statement and the spending of the money within a short period of time. He submitted that these were circumstantial matters of evidence which the jury might be well-equipped to consider, but, although they did not fall into the category of lies, "nonetheless there might be some special directions given to the jury as to the proper use of that post-offence conduct". And he referred the judge to R. v. Nguyen[16]. The judge said that he would redirect but only as to the spending of the money. His Honour then recalled the jury and said -

"You will remember that [the prosecutor] told you that the very rapid spending of the money by the accused indicates that she was well aware that she was not entitled to it and was spending it in order to prevent, or frustrate, its recovery. Now as to that, I must tell you that you could only use any rapid spending of the money that you find to be proved as evidence of guilt if you are satisfied that there was no other reason for its spending, save a knowledge by the accused that she was not entitled to it." (Emphasis added.)

128. Mr Kassimatis argued that the Crown had relied on the applicant's post-offence conduct to demonstrate the applicant's guilty mind, and thus her dishonesty. The prosecutor had argued that the only reason the applicant could have had to change her address was to conceal her wrongdoing. He had argued that if she really believed she was entitled to the money, why would she take steps to conceal her withdrawal of it, relying also on the sheer speed with which the money had been spent, to show that the applicant knew full well that she was not entitled to the money and sought to frustrate its recovery. The judge declined to direct the jury on the change of address, since he perceived it to be no more than evidence of an act contemporaneous to the applicant's offending.

131. In Nguyen, Winneke, P.[17] said that "post-offence conduct, including lies, only becomes probative because it stems from a consciousness of guilt", and added that "where the conduct is being used, and is capable of being used, to prove guilt, the trial judge must ... be astute to the clear possibility that the jury will so use it, and to give such directions as are needed to ensure that it is not misused".

134. The passage from the charge quoted in [32] above shows clearly enough, I think, that the prosecutor had sought to use both pieces of evidence in such a way as to suggest that the applicant so acted out of a consciousness of her guilt, and to conceal her wrongdoing. There was, however, a possibly innocent explanation for all this conduct, to which I shall turn shortly. But the judge's redirection could not be described, on any view, as a complete Edwards[18] direction and furthermore, it related only to the rapid spending of the money, not at all to the change of address.

137. Insofar as the evidence related to the changing of the address for statements of the account by the applicant, Reynolds in her evidence had said that the request to change the address had been made by the applicant "so that her husband wouldn't know that she'd taken the money out". This explanation was by no means consistent only with the applicant having acted dishonestly. In the context of Family Court proceedings which were obviously hotly contested and in which her former husband's evidence showed him to be very antagonistic to her, it was certainly possible that the applicant might have sought to change the address to prevent her former husband knowing that she had obtained access to what she thought were her own funds, in order to avoid harassment by him in the Family Court proceedings, or merely to delay his discovery that she had obtained this sum. That her name was given as the person to whom statements were thereafter to be sent ensured that he would eventually become aware that it was she who had obtained the moneys from the account. That the applicant rapidly disposed of the moneys she obtained in this way might just as well have been explained by her being then in urgent need of money to meet pressing financial obligations.

140. It was submitted for the applicant that to have highlighted the dissipation of the funds and attached to it a limited redirection compounded the error in failing to give a full direction in accordance with R. v. Nguyen. In so doing the judge identified one of the two matters relied upon by the Crown to establish the applicant's dishonesty, but warned the jury on its use only of one of them. It was submitted that the failure to direct the jury on the other matter amounted to an implied endorsement of their being at liberty to use the other as they saw fit.

143. Having regard to the conclusion I have reached on proposed ground 2, it is unnecessary to arrive at a final view on proposed ground 1. I would merely say that this ground also seems to me to be not without substance.

The application for leave to appeal against sentence

147. When the judge imposed sentence on 26 September 2003, his Honour simply ordered that the applicant be imprisoned for a period of two-and-a-half years and directed that she serve a minimum of 18 months before becoming eligible for parole. His Honour did not mention that there were two counts, or state that any particular sentence was directed to any specific offence. In so doing his Honour appears to have imposed an aggregate sentence in error, there being no power in the County Court to impose such a sentence. On 30 October 2003, the applicant was brought back to court and resentenced, his Honour taking the view that the sentence was incomplete and that he was not functus officio. The judge then said that he imposed on count 1 a term of two-and-a-half years' imprisonment and on count 2 a term of six months, the sentences to be wholly concurrent. His Honour was presumably purporting to act under s.104A of the Sentencing Act 1991.

150. Mr Kassimatis argued that the sentence was thus vitiated by error, and that this Court was obliged to resentence the applicant. Having regard to the fact that the applicant's conviction is to be set aside, it is unnecessary to decide the point. However I should observe that s.104A could not have provided any power to add to the sentence since the power given by that section to correct mistakes must be exercised within 14 days after sentence was passed.[19]

153. The application for leave to appeal against sentence also in my view has some substance. The applicant, being Japanese and not speaking English well, would be likely to encounter prejudice within the prison system and find her imprisonment difficult. At the age of 53 she had no prior convictions and a hitherto unblemished record. Her offending involved a single incident, was opportunistic and on one view of the facts, there was little evidence of premeditation. A suspended sentence would plainly have been open, there being no reason for concern as to her prospects of rehabilitation. To impose a non-parole period of 18 months was in the circumstances severe, and a lesser period of actual custody would in my view have been appropriate. The applicant has, of course, now been in custody since 28 August 2003.

156. Leave should be granted to the applicant to amend her grounds for seeking leave to appeal against conviction in the manner proposed. The appeal against conviction should be allowed, and the convictions of the applicant imposed on 26 September 2003 set aside. There should be an order for the retrial of the applicant on both counts in the presentment. The Director will no doubt give consideration to the matters referred to in the previous paragraph in deciding whether to proceed to a retrial of the applicant.

159. Since the applicant may be retried, I should add this comment on what was described as "post-offence conduct". The prosecutor contended, as I understand it, that the evidence of rapid spending and the request for a change of address was relevant and admissible as going to prove both motive and dishonesty. The request for a change of address is not really post-offence conduct at all. It was simply a change of address, not the concealment of the identity of the taker of the funds, that was sought. It was explicable on the basis I have explained in par.[37] above. The evidence of spending showed disbursement of the funds over more than a month and was consistent with the expenditure of a person who regarded herself as the owner of the funds, and who had been in pressing financial need. So explained, it seems to me that both pieces of evidence established neither motive nor dishonesty and should accordingly have been excluded as irrelevant.

[1] [2001] VSCA 1; (2001) 118 A.Crim.R. 479; (2004) 7 V.R. 236.

[2] [1973] Q.B. 530 at 537-8.

[3] [1982] EWCA Crim 2; [1982] Q.B. 1053, especially at 1064 per Lord Lane, C.J.

[4] [1980] VicRp 39; [1980] V.R. 401.

[7] [1981] VicRp 75; [1981] V.R. 783 at 789 by Young, C.J., Crockett and Tadgell, JJ.

[8] [1981] VicRp 63; [1981] V.R. 633 at 635 per Young, C.J. and at 644-5 per McInerney, J.; cf., however, per McGarvie, J. at 668.

[9] [1998] HCA 7; (1998) 192 C.L.R. 493.

[10] At [18]; see also per McHugh, J. at [86], Gummow, J. at [93] and Kirby, J. at [127].

[11] Property Offences, 3rd ed. (1999) at 139.

[12] [2003] HCA 24; (2003) 214 C.L.R. 230; 197 A.L.R. 333.

[13] Gleeson, C.J., Gummow and Hayne, JJ. at [36] and [39]; McHugh, J. at [107]; Callinan, J. at [130].

[14] R. v. Salvo [1980] VicRp 39; [1980] V.R. 401 per Murphy, J. at 420; Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 436; R. v. de'Zilwa [2002] VSCA 158; [2002] 5 V.R. 408 per Ormiston, J.A. at [4]-[5].

[16] (2004) 7 V.R. 236 at [18]; [2001] VSCA 1; 118 A.Crim.R. 479.

[18] [1993] HCA 63; (1993) 178 C.L.R. 193.

[19] S.104A(2)..