Dhillon v The State of Western Australia
[2018] WASCA 104
•29 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DHILLON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 104
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 20 DECEMBER 2017
DELIVERED : 29 JUNE 2018
FILE NO/S: CACR 86 of 2017
BETWEEN: RANDEEP SINGH DHILLON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND 1982 OF 2015
Catchwords:
Criminal law - Application for leave to appeal against conviction - Fraud - Conviction after trial - Miscarriage of justice - Application for evidence to be given via video link where non‑compliance with District Court of Western Australia Practice Direction Gen 1 of 2011 - Failure of technology at trial - No original documents tendered as evidence at trial - Document not tendered as evidence at trial - Whether verdict of guilty unreasonable or not supported by evidence - Whether verdict of guilty should be set aside by reason of new and additional evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)
Criminal Code (WA), s 7(c), s 7(d), s 409(1)(c)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | No Appearance |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
On 14 October 2016, after a five‑day trial in the District Court, the appellant was convicted of three counts of fraud contrary to s 409(1)(c) of the Criminal Code (WA). Later, on 17 February 2017, he was sentenced to a total effective sentence of 18 months' imprisonment suspended for a period of 12 months.
The appellant seeks leave to appeal against his convictions on four proposed grounds. The appellant is self‑represented. His proposed grounds of appeal are not easy to understand, but they are to the following effect:
Ground 1:The appellant suffered a miscarriage of justice because the State's applications for the evidence of two prosecution witnesses, Ms Sian Smith and Mr Harry Nelson, to be given via video link, were brought later than the time limit specified in the District Court of Western Australia Practice Direction Gen 1 of 2011 (the Practice Direction).
Ground 2:The appellant suffered a miscarriage of justice because:
(a)of 'the failure of technology' during the trial;
(b)'no original documents' were submitted to the jury; and
(c)a '1,800 page investigation by the WA Police and its findings' were not tendered in the trial.
Ground 3:The guilty verdicts were unreasonable or cannot be supported on the evidence.
Ground 4:The guilty verdicts should be set aside by reason of 'new and additional evidence'.
For the reasons that follow, none of the proposed grounds of appeal have a reasonable prospect of succeeding. Accordingly, the appeal must be dismissed.
The charges
As amended at trial, the appellant was charged as follows:
(1)On 15 October 2013 at Perth [the appellant], with intent to defraud, by deceit or fraudulent means gained a benefit, namely $56,896.77 in money, for Dental Horizons Pty Ltd.
(2)On 21 October 2013 at Perth [the appellant], with intent to defraud, by deceit or fraudulent means gained a benefit, namely $7,317.24 in money, for Dental Horizons Pty Ltd.
(3)On 21 October 2013 at Perth [the appellant], with intent to defraud, by deceit or fraudulent means gained a benefit, namely $16,255.26 in money, for Dental Horizons Pty Ltd.
The State's case at trial
The appellant was, at all material times, a practising dentist. He was also the sole director of a company called Dental Horizons Pty Ltd,[1] through which he conducted his dental practice in Claremont known as Dental Horizons.[2]
[1] ts 357, 433.
[2] ts 74.
In about June 2012, the appellant engaged the services of a bookkeeper, Mr Richard Dunn, who conducted a business called Agile Bookkeeping Services (Agile Bookkeeping)[3] to, amongst things, help expand his business. Initially, the hope was to take advantage of certain government incentives to assist dentists to set up rural practices. This hope did not eventuate. Instead, the appellant decided to open new practices in Cannington and in Bunbury.[4]
[3] ts 81.
[4] ts 73.
The appellant obtained finance to purchase the equipment necessary for these practices from Investec Professional Finance Pty Ltd (Investec).[5] Dental Horizons Pty Ltd and Investec entered into two agreements (one for each new practice) dated 9 June 2013 (exhibit 22) and 6 September 2013 (exhibit 23), referred to in the trial as escrow agreements. Each escrow agreement was for a period of 12 months commencing from 9 June 2013 and was expressed to be for the purpose of acquiring 'Medical Equipment'.[6] The escrow agreement dated 9 June 2013 had a purchase price limit of $200,000, exclusive of GST,[7] while the escrow agreement dated 6 September 2013 had a purchase price limit of $214,000, exclusive of GST.[8] In each agreement, the appellant was the guarantor.
[5] ts 73 - 74.
[6] Exhibit 22, page 2; exhibit 23, page 2.
[7] Exhibit 22, page 2.
[8] Exhibit 23, page 2.
Each escrow agreement allowed the appellant to purchase equipment (and obtain some services) for the new practice up to the value of the purchase price limit. The purchase price limit could be drawn down in two ways. Equipment could be purchased from a supplier who would then submit an invoice to Investec for payment. Upon Investec receiving a funding notice signed by the appellant authorising the payment, Investec would pay the invoice.[9] Alternatively, if the appellant purchased equipment using his own funds, the appellant would provide Investec with the relevant invoice and proof that he had paid the invoice. Upon receipt of these documents, Investec would, on the basis that they were genuine and having also received a signed funding notice, reimburse the appellant for the purchase.[10] Each of the three counts concerned claims for reimbursement.
[9] ts 214.
[10] ts 74.
Part of Mr Dunn's duties was to assist the appellant in his dealings with Investec by producing and processing the necessary paperwork to claim reimbursements, and to act as a conduit for the flow of information between the appellant and Investec. The State alleged that, in respect of each of the three counts, the appellant directed Mr Dunn to create false invoices for the purchase of equipment. Mr Dunn created a false invoice by manipulating a genuine invoice, sent to him by the appellant in PDF format, to give the appearance that both new practices were making the same purchase. Additionally, the appellant instructed Mr Dunn to alter the appellant's American Express statements, which were also sent to him by the appellant in PDF format, to give the impression that an extra payment had been made for the second (false) invoice. Mr Dunn acted in accordance with the appellant's instructions.[11]
[11] ts 74 ‑ 75.
In respect of each claim, Investec took the false documentation to be genuine. Upon receipt of a funding notice signed by the appellant which attached the false invoice, Investec paid the claimed sum to a bank account in the name of Dental Horizons Pty Ltd. Within a short time of the money being deposited in that account, large sums were then transferred to other accounts operated by the appellant.[12]
[12] ts 76.
As to count 1, the State alleged that the appellant purchased dental chairs and other equipment from Dansereau Health Products Inc (Dansereau),[13] a company based in California that manufactures and supplies dental products worldwide.[14] Dansereau's vice president, Mr Harry Nelson, testified that his company issued two sales order forms,[15] one dated 2 August 2013 numbered S11396, in the sum of US$44,724,[16] and the other dated 20 September 2013 numbered P21684, in the sum of US$6,652.04.[17] Mr Nelson testified that each of these sales order forms were paid by the appellant with an American Express card.[18]
[13] ts 76.
[14] ts 231 - 232.
[15] ts 234 ‑ 236.
[16] Exhibit 24.
[17] Exhibit 25.
[18] ts 236.
Mr Nelson was shown copies of two sales order forms which, although ostensibly issued by his company, were false. Each of the two false sales order forms carried a consecutive order number to, and was in the same amount as, the genuine form, but their content was different in a number of respects.[19] Mr Nelson testified that each of the sales order forms issued by Dansereau was issued only once and was paid only once.[20]
[19] ts 237 - 240; exhibits 6, 13.
[20] ts 241.
The State alleged that the appellant instructed Mr Dunn to prepare the false sales order forms purportedly issued by Dansereau, and to falsify the appellant's American Express statements to give the impression that they had been paid by the appellant.[21] Mr Dunn testified that he did as he was instructed.[22] Ms Sian Smith, an employee of Investec, testified that following receipt of these documents and a funding notice signed by the appellant, Investec paid $56,896.77[23] to Dental Horizon.[24]
[21] ts 74 ‑ 75.
[22] ts 90 ‑ 91, 93, 95.
[23] This sum includes GST.
[24] ts 264 ‑ 265; exhibit 27; exhibit 28.
As to counts 2 and 3, the State alleged that the appellant defrauded Investec using, essentially, the same modus operandi as he employed in count 1. Specifically as to count 2, Mr Dunn again manipulated a legitimate order form from Dansereau and made a corresponding false entry in the appellant's American Express statement. As to count 3, Mr Dunn manipulated an invoice from another dental company in the United States known as Handpiece Solutions. Again, Mr Dunn altered the appellant's American Express statement to make it appear as though two legitimate payments had been made.[25] In each case, the false documents and a funding notice signed by the appellant was sent to Investec, who paid to Dental Horizons the sum alleged in each count.
[25] ts 76.
According to Mr Dunn, on 30 September 2013, he met with the appellant who accepted, in effect, that Mr Dunn was entitled to $50,000 for his services.[26] In October 2013, Mr Dunn issued two invoices in the name of Agile Bookkeeping to Dental Horizons dated 10 and 11 October 2013 respectively, each in the sum of $27,500 inclusive of GST. The invoice dated 10 October 2013 was in respect of work done in relation to the set‑up of Dental Horizons Cannington. The invoice dated 11 October 2013 was in relation to the set‑up of Dental Horizons Bunbury. Both invoices were forwarded by Mr Dunn to Investec for payment, pursuant to the escrow agreements. The appellant signed a funding notice which attached each invoice.[27] Investec paid Mr Dunn the amounts claimed on the two invoices, which totalled $55,000.[28]
[26] ts 124 - 125.
[27] Exhibit 21.
[28] ts 161.
The relationship between the appellant and Mr Dunn broke down when, in mid‑November 2013, the appellant accused Mr Dunn of stealing the $55,000 and threatened to call the police if it was not repaid.[29]
[29] ts 163.
In response to his threat, Mr Dunn decided to 'fess up' to the fraudulent claims that he said he had made at the behest of the appellant. To this end, he contacted Richard Curia, a senior employee at Investec.[30]
[30] ts 163.
Mr Curia testified on behalf of the State. He said that he received a telephone call from Mr Dunn, and that, subsequently, Investec investigated whether the appellant had made fraudulent claims in respect of payments made pursuant to the escrow agreements.[31] Mr Curia also testified that the appellant contacted him and denied any wrongdoing, and alleged that Mr Dunn had 'authorised or forged the [relevant] funding notices'.[32]
[31] ts 216 ‑ 217.
[32] ts 217.
In due course, Investec complained to the Western Australian police. In May 2014, First Class Constable Rosemary McMinn became the investigating officer with respect to the matter.[33] A search warrant was executed at Mr Dunn's home, as a result of which various electronic and computer devices were seized, including Mr Dunn's mobile telephone.[34] The data stored on Mr Dunn's mobile telephone was examined, and Constable McMinn identified a number of text messages received from the appellant which the State alleged incriminated the appellant.[35] Constable McMinn also testified that a forensic analysis of the computers seized from Mr Dunn's home yielded a number of emails which the State also alleged incriminated the appellant.[36]
[33] ts 284.
[34] ts 288.
[35] ts 289 - 294; exhibit 36.
[36] ts 294 - 297; exhibits 7, 11, 19, 37, 38.
At some point prior to November 2014, Mr Dunn was charged with defrauding Investec in respect of the false claims he made on behalf of the appellant.[37] Mr Dunn pleaded guilty in the District Court to these charges, and was sentenced by Bowden DCJ to a suspended term of imprisonment. Prior to being sentenced, Mr Dunn promised to cooperate in the prosecution of the appellant. To this end, Mr Dunn provided the Office of the Director of Public Prosecutions with 'a detailed and comprehensive signed statement'.[38] Mr Dunn also undertook to give evidence against the appellant. Mr Dunn received sentencing discounts for his past and future cooperation. Mr Dunn testified to this effect. He also told the jury that he understood that if he did not cooperate by testifying against the appellant, he was liable to be resentenced to a term of immediate imprisonment.[39]
[37] No evidence was led at trial as to when Mr Dunn was sentenced or the precise details of the suspended imprisonment order that was made, though defence counsel opened on the basis that it would be; ts 78.
[38] ts 169.
[39] ts 169.
The State's case was that the appellant counselled or procured[40] Mr Dunn to commit the fraud offences or, alternatively, the appellant aided[41] Mr Dunn to commit the fraud offences.[42]
[40] Criminal Code, s 7(d).
[41] Criminal Code, s 7(c).
[42] Summing up ts 437 - 438, 441.
In directing the jury, the trial judge said that the State's case relied predominantly upon the direct evidence of Mr Dunn. Her Honour said that although the State also pointed to other evidence which it said supported its case, including text messages and emails, the documentary evidence was by itself insufficient to support a verdict of guilty. Her Honour said that the State accepted that if the jury did not accept that Mr Dunn was an honest and reliable witness as to the essential facts, the jury was obliged to acquit the appellant of the charges.[43]
[43] ts 419 - 421.
The defence case at trial
The appellant was represented by counsel at the trial. Counsel gave an opening address in which he emphasised that the prosecution case depended on the evidence of Mr Dunn, who was a convicted fraudster.[44]
[44] ts 78 ‑ 80.
The appellant elected to give evidence in his defence. He adduced no other evidence (nor, of course, was he obliged to do so).
The appellant denied being in any way implicated in the commission of the offences. In particular, he denied instructing Mr Dunn to falsify invoices and the American Express statements which were sent to Investec.[45] The clear effect of his evidence was that the fraudulent claims were the sole responsibility of Mr Dunn. In substance, the appellant testified that he was too busy looking after his patients,[46] and that he left 'a lot of [his] admin and financial work [to Mr Dunn]'.[47]
[45] ts 331 - 332, 347.
[46] ts 327.
[47] ts 334.
The appellant said that he was 'not a hundred per cent sure' he could remember signing the funding notices.[48]
[48] ts 339.
With respect to the $55,000 paid to Mr Dunn, the appellant denied that he agreed to pay Mr Dunn that sum for his services.[49] In examination‑in‑chief, the appellant said that he informed Ms Smith from Investec that he had paid the $55,000 in error, and that she responded 'no problem, you can get the money back'.[50] Ms Smith was not cross‑examined about this conversation.
[49] ts 340.
[50] ts 342.
In cross‑examination, the appellant:
(a)denied that he had any need to 'cash out' the sums advanced pursuant to the escrow agreements because, in substance, he was making 'three and a half million dollars per year', and had no need to do so;[51]
(b)repeated his denials of having instructed Mr Dunn to falsify invoices;[52]
(c)said that he signed the funding notices authorising the release of funds to Dental Horizons because he trusted Mr Dunn;[53]
(d)when asked about various emails and text messages, claimed that he had no recollection of sending the apparently incriminating text messages and emails, or that he was not 100% sure that he had done so;[54] and
(e)maintained that Mr Dunn had stolen the $55,000.[55]
[51] ts 360.
[52] ts 360.
[53] ts 362. See also ts 371.
[54] ts 350, 352, 361, 363, 368.
[55] ts 382.
In essence, the defence case was that the appellant did not counsel or procure or aid Mr Dunn to commit the offences the subject of the indictment. It was said on behalf of the appellant that Mr Dunn was a witness of proven dishonesty who had saved his own skin by falsely implicating the appellant.[56] Defence counsel submitted that Mr Dunn had no entitlement to the $55,000 that was paid to him, and that his conduct in respect of this sum was evidence of Mr Dunn's greed, dishonesty and sharp dealing with the appellant, and provided a possible motive for making the false accusation against the appellant that he was involved in the alleged frauds against Investec.[57] Further, the defence case was that Mr Dunn was a proven liar who had engaged in deliberate deceit of Investec.[58] The jury should not take the word of a proven liar, especially when the appellant was a successful professional man who did not need the money.[59]
[56] ts 442.
[57] ts 443.
[58] ts 447.
[59] ts 449.
The proposed grounds of appeal
It is convenient to deal with the proposed grounds of appeal in this order: proposed grounds 1, 2, 4 and 3.
Proposed ground 1
Section 121 of the Evidence Act 1906 (WA) (Evidence Act) relevantly provides:
121.WA court may take evidence or receive submission by video link or audio link
(1)Subject to this section, a WA court may, on its own initiative or on the application of a party to a proceeding in or before the court, direct that in that proceeding evidence be taken or a submission be received by video link or audio link from a person at a place, whether in or outside this State, that is outside the courtroom or other place where the court is sitting.
(2)The court shall not make such a direction unless satisfied the video link or audio link is available or can reasonably be made available.
(2a)The court shall not make such a direction if satisfied the direction is not in the interests of justice.
The Practice Direction relevantly provides:
3.Booking of video link facilities
3.1Where an order is made pursuant to EA [Evidence Act] s 121 for the use of a video link facility, the Applicant must send to the Court a Video Link Booking Request in the form published by the Court from time to time (and available on its website).
3.2Unless there are exceptional reasons for not doing so, the Video Link Booking Request is to be received by the Court not less than 14 days before the date of the hearing in which the evidence is to be taken or submission received.
On 6 May 2016, the appellant's trial was listed to commence on 10 October 2016. At the listing hearing, the State did not apply for, or foreshadow, that a direction was required pursuant to s 121 of the Evidence Act to allow any State witness to give evidence via video link.[60]
[60] ts 14.
The Practice Direction came into operation on 5 September 2011, and was revised on 10 November 2011 and 19 August 2016. As can be seen, par 3 of the Practice Direction provides that where an order (more correctly, a direction) is made for the use of a video link facility pursuant to s 121 of the Evidence Act, the applicant must send to the court a Video Link Booking Request in a form published by the court. Unless there are exceptional reasons for not doing so, the Video Link Booking Request is to be received by the court not less than 14 days before the date of the hearing in which the evidence is to be taken. The Practice Direction does not expressly provide for when an application for a direction under s 121 of the Evidence Act is to be made, but it is clear that it contemplates a two‑step process. The first step is that an application is made for the use of a video link facility. The second step is that, if the order is granted, the applicant must then lodge a Video Link Booking Request within the time specified.
On 4 October 2016, some six days before the trial was due to commence, the State filed an application for a direction that Ms Smith and Mr Nelson give evidence by video link, pursuant to s 121 of the Evidence Act. On 6 October 2016, the State filed an affidavit sworn by Lisa Michelle Jones, a paralegal at the office of the Director of Public Prosecutions. The information in this affidavit was sparse.
The State's application first came on for hearing before Sleight CJDC on 6 October 2016. Defence counsel (who was the same defence counsel that represented the appellant at trial) advised his Honour that, as the Practice Direction had not been complied with, and as there were no exceptional reasons for that failure, the State's application for a video link was opposed.[61]
[61] ts 17 - 18.
Sleight CJDC, quite properly, observed that applications made pursuant to s 121 of the Evidence Act must be brought in a timely way and in accordance with the Practice Direction.[62] His Honour adjourned the proceedings to the following day, saying that he needed to know more about the matter.[63]
[62] ts 21.
[63] ts 25 ‑ 26.
On 7 October 2016, a further affidavit from Lisa Michelle Jones was sworn and filed. This affidavit informed the court, inter alia:
(a)of the locations of Ms Smith and Mr Nelson;
(b)of the availability of video link facilities which complied with the technical requirements of the Practice Direction; and
(c)that copies of exhibits relevant to their testimony could be transmitted to the video link facility.
His Honour ruled that the evidence of Ms Smith and Mr Nelson could be given by video link. His Honour did so notwithstanding the State's failure to comply with the Practice Direction. His Honour's reasons for the orders are brief and may be quoted in full:[64]
[I]n relation to these two matters, I am concerned that the Practice Direction and spirit of the Practice Direction hasn't been observed in terms of when the application in this matter was lodged. But notwithstanding those concerns, it shouldn't be dismissed lightly. It seems to me that the State is placed in an awkward position because both witnesses are out of the State.
In relation to the witness, Ms Smith, because of the way our federation of Australia operates, it's difficult to see how the State can compel her to come back to give evidence. Likewise, the same can be said of Mr Nelson who lives out of the country.
What their evidence is in the nature of establishing the basal facts in this matter, which are the business records of the finance company and the business records of the company which supply dental equipment to the accused's business. The alleged fraud focuses really on what instructions the accused gave to a Mr Dunn. That would seem to be the live issue at trial.
I do not see that the accused will suffer any disadvantage by the evidence of Ms Smith and Ms Nelson being given by video-link. I believe that the State would have inevitably needed to make this application. The only reason for denying it is that they haven't complied with the Practice Directions concerning the time limits for making such an application.
I'm not persuaded that should stand in the way of the evidence being captured by way of a video-link and therefore I will grant the applications made by the State in relation to both witnesses.
[64] ts 33 - 34.
The appellant's submissions in support of proposed ground 1 are barely coherent, and seem to boil down to a generalised assertion that he has suffered a miscarriage of justice because the State did not comply with the Practice Direction and, further, that the late request for the video link somehow disadvantaged him in the proceedings. These arguments have no merit for the following reasons.
First, the granting of the direction allowing Ms Smith and Mr Nelson to give evidence via video link pursuant to s 121 of the Evidence Act was plainly correct. The direction was entirely appropriate given the location of the witnesses, the nature of their evidence, the availability of proper video link facilities, and that the appellant would not be disadvantaged by their evidence being given by video link. The direction was in the interests of justice.
Second, a practice direction does not have the force of law. Its requirements do not take precedence where, as in this case, the interests of justice dictate otherwise.
Third, the appellant has not demonstrated that he suffered any prejudice as a result of Ms Smith and Mr Nelson giving evidence via video link. Their evidence was expected to be, and was, uncontroversial. Each witness could view the documents relevant to their testimony. At no stage was it suggested that the jury needed either witness to attend at court in order to properly judge their credibility. No complaint was made of the technical quality of the video link.
Proposed ground 1 has no reasonable prospect of succeeding.
Proposed ground 2
The first alleged miscarriage of justice under this proposed ground concerned 'the failure of technology'[65] during the trial. The alleged 'failure of technology' occurred on 10 October 2016, on the first day of the trial during the evidence‑in‑chief of Mr Dunn. In the morning's proceedings, the State prosecutor led evidence from Mr Dunn about a number of documents. Those documents were displayed in the courtroom on large video screens. However, the images were not displayed on smaller screens installed in the jury box and the dock. Neither the jury nor the appellant expressed any concern about this prior to the lunch break.
[65] Appellant's proposed ground of appeal 2.
After lunch, defence counsel alerted her Honour to the situation. In the absence of the jury, her Honour pointed out that both the jury and the appellant could see the documents on the larger screens in the courtroom,[66] and that, insofar as the appellant was concerned, he had presumably seen the documents in the prosecution brief. The trial judge expressed the view that what occurred was not a 'disaster'.[67] Her Honour decided to shift to another courtroom where the smaller screens worked. Her Honour explained the situation to the jury. No application was made by defence counsel to discharge the jury or for any other step to occur, such as the repetition of the evidence relating to the documents given in the original courtroom.[68]
[66] ts 108.
[67] ts 109.
[68] ts 109.
It is clear that the alleged failure of technology did not in any way give rise to a miscarriage of justice. All documents referred to by Mr Dunn were shown to the appellant and the jury on the large screens in the courtroom. The jury did not complain about the failure of the smaller screens. In these circumstances, it may readily be inferred that the technical failure did not prevent the jury or the appellant from seeing the documents. Her Honour dealt with the matter effectively, once the technical fault had been brought to her attention. Defence counsel did not apply to discharge the jury. We infer that that is because there was no conceivable justification for doing so.
The next complaint the appellant makes in proposed ground 2 is that 'no original documents were submitted to the jury'. The short and complete answer to this complaint is that, insofar as copy documents were tendered as exhibits in the trial, defence counsel made no objection to this course, and no miscarriage of justice has been demonstrated by their tender. The appellant's assertion that 'there was omission of key evidence and documents' is bare assertion, with no foundation in any evidence admitted at trial or admitted, or sought to be admitted, on appeal.
Finally, the appellant claims that he suffered a miscarriage of justice because a '1,800 page investigation by the WA police and its findings'[69] were not tendered in the trial. No application was made to this court to adduce as additional evidence in the appeal the 'investigation' and 'its findings'. The contents of this document, if it exists, are not known and its relevance is not explained. In these circumstances, there is no basis to the appellant's claim.
[69] Appellant's proposed ground of appeal 2.
Proposed ground 2 has no reasonable prospect of succeeding.
Proposed ground 4
Proposed ground 4 contends that the guilty verdicts should be set aside by reason of 'new and additional evidence'.[70]
[70] Appellant's proposed ground of appeal 4.
Prior to the hearing of this application for leave to appeal, no application to adduce additional evidence in support of proposed ground 4 had been made.
At the hearing, the appellant sought and was given further time to bring an application to adduce additional evidence. The court ordered that by 4.00 pm on 5 January 2018, the appellant file and serve:[71]
1.an application for leave to adduce additional evidence in the appeal;
2.the affidavit of Laila Nikolajevic (the appellant's former office manager[72]) sworn 22 September 2017; and
3.an affidavit of the appellant annexing an incident report dated 12 October 2016.
[71] Order of Buss P, Mazza JA and Beech JA, dated 22 December 2017.
[72] Appeal ts 21.
The appellant has not filed any of the documents referred to in this order.
Accordingly, proposed ground 4 cannot succeed because there is no additional evidence before this court capable of supporting the proposed ground.
Proposed ground 3
Proposed ground 3 is expressed in the appellant's case in these terms:
Evidence put forward in my prosecution was not capable of convincing a jury of my guilt to the required standard of proof. There is good reason and reasonable doubt that key evidence was manipulated, edited, omitted, fraudulently obtained and admitted in the court of law for the purposes of entrapment and purposeful malice. Element of duress, reward and bribery to obtain, alter and gathering of evidence and the presentation and use of the same in the court of law - [underlined in original]
a.It is importance that it be known that 'no true' evidence was tendered either as an exhibit or evidence because there was no original off any document submitted in the proceedings.
b.The above concerned was repeatedly brought up in court and it repeatedly ignored.
c.Document presented were not presented from the findings of a police investigation Brother from some unknown source. Primarily being obtained from the co accused and and it would be safe to say that they were purposefully manufactured to cause malice and harm.
d.There was clear and purposeful omission off 'any and all original documents' that were completely omitted from this case. Thus the evidence attended was flawed and incorrect
Error of mixed fact and law
What the appellant has written in support of the proposed ground is incoherent. His submissions largely comprise a series of quotes taken from the transcript of Mr Dunn's sentencing in the District Court before Bowden DCJ, and quotes and references to the transcript of the appellant's trial.
In his oral submissions in support of this proposed ground, the appellant asserted that 'there was reasonable doubt beyond - beyond any manner'.[73] The focus of this assertion was the evidence of Mr Dunn. In substance, he alleged that Mr Dunn was an untruthful witness who had 'embezzled $55,000 [from the appellant]'[74] and that he falsely implicated the appellant to deflect enquiries away from his own wrongdoing.[75]
[73] Appeal ts 25.
[74] Appeal ts 25.
[75] Appeal ts 25 - 26.
The legal principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known and were explained by this court in Wells v The State of Western Australia[76] in these terms:[77]
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial. (citations omitted)
[76] Wells v The State of Western Australia [2017] WASCA 27.
[77] Wells [13].
There was no dispute at trial that Mr Dunn fraudulently obtained from Investec the sums alleged in each of the counts on the indictment. The question in respect of each count was whether the appellant had also committed the offences. The State's primary case was that the appellant counselled or procured Mr Dunn to commit the offences and was therefore criminally liable pursuant to s 7(d) of the Criminal Code. Alternatively, the appellant aided Mr Dunn in the commission of the offences pursuant to s 7(c) of the Criminal Code.
The State's case against the appellant depended upon the jury being satisfied beyond reasonable doubt of two things. First, that Mr Dunn was an honest and accurate witness. Second, that the appellant's denials were false. By their verdicts, the jury must have reached these conclusions. Whether it was open to the jury to so conclude must be determined by this court upon the whole of the evidence presented at trial. In this regard, it is relevant to note that, apart from Mr Dunn and the appellant, no serious challenge was mounted to the credibility of any other witness.
In our opinion, it was well open to the jury to be satisfied beyond reasonable doubt of the honesty and accuracy of the evidence of Mr Dunn, and to reject the appellant's denials. We have reached these conclusions for the following reasons.
We start by making the important observation that the jury was much better placed than this court to judge the credibility and reliability of Mr Dunn and the appellant by reason of the advantage that it had in seeing and hearing them testify.
It was common ground at trial that in each count Mr Dunn had defrauded Investec and thereby gained a benefit for the appellant's company, Dental Horizons Pty Ltd. There was no serious dispute that the original documents from which the altered documents were derived were sent by the appellant to Mr Dunn in PDF format, that is, a format which enabled them to be altered electronically. In each case, the appellant signed a funding notice authorising Investec to make the relevant payment. Attached to each funding notice was the false invoice. The funds which Dental Horizons Pty Ltd received were disbursed to accounts operated by the appellant. None of the moneys the subject of the charges was paid to Mr Dunn. Put another way, the only person who financially benefited from each offence was the appellant. Nothing in the evidence or submissions of the appellant at trial advanced any plausible reason why Mr Dunn would have, independently of the appellant, engaged in a series of frauds that benefited only the appellant.
As we have said, Mr Dunn, by his own admission, committed the frauds for which the appellant was also accused. Mr Dunn cooperated with the police and pleaded guilty to the charges. He received a more favourable sentence by reason of his cooperation and by promising to testify against the appellant. He may have had an interest in downplaying his role in the offences and implicating the appellant.
The trial judge gave the jury appropriate directions as to how they must approach Mr Dunn's evidence. Her Honour instructed the jury that it should carefully consider the evidence of Mr Dunn because it may be self‑serving and unreliable. Her Honour went on to instruct the jury, in orthodox terms, that it would be unsafe to convict the appellant solely on the evidence of Mr Dunn, unless, having carefully scrutinised it, the jury was satisfied beyond reasonable doubt as to both its truth and its accuracy. Her Honour also 'recommended'[78] that the jury, in effect, consider whether Mr Dunn's evidence was corroborated by the documentary evidence tendered at the trial, including messages between the appellant and Mr Dunn, the invoices, the American Express statements, the funding notices, and the bank statements showing where the money went.[79]
[78] ts 423.
[79] ts 423.
While it is true that Mr Dunn acted in a seriously dishonest way in committing the frauds, it was open to the jury to conclude that he was nevertheless telling the truth about the appellant's involvement in the commission of the offences.
Text messages between Mr Dunn and the appellant clearly conveyed that the appellant was being asked to provide documents and, impliedly, this was for the purpose of alteration of the documents. On 6 September 2013, Mr Dunn sent a text message to the appellant which said:[80]
I need to get the [Amex] bank statement in PDF downloaded from the Amex website for the dental chairs transaction on the 2/8. IMP (For Richard [Curia] and the loans.)
[80] Exhibit 36.
On 27 September 2013, Mr Dunn sent to the appellant the following message:[81]
Just starting to look over docs first. I need to PDF download from the bank as it is clean and can be changed. Next week is fine.
[81] Exhibit 36 (emphasis added).
The text messages indicate that, in September 2013, before the commission of the offences and before Mr Dunn and the appellant fell out, Mr Dunn requested documents from the appellant for the purpose of altering them.
Further, Mr Dunn sent to the appellant copies of the false AMEX statements and the email to Investec submitting the false claims.[82] If Mr Dunn had been acting independently of the appellant it is very unlikely that Mr Dunn would have sent copies of his fraudulent documents to the appellant.
[82] ts 111 ‑ 112, 115 ‑ 116; exhibit 7, exhibit 9.
The bank records show that on 15 October 2013, the $56,896.77 that was the subject of count 1 was transferred into a bank account in the name of Dental Horizons Cannington. On 21 October 2013, the sum of $23,572.50 (being the total sums involved in counts 2 and 3) was transferred into the same account.
On 24 October 2013, almost the entire balance of that account was transferred into a bank account in the name of the appellant's family trust. From there, various sums were disbursed. It was well open to the jury to conclude that it was the appellant, or entities associated with him, and not Mr Dunn, who benefited from Mr Dunn's fraudulent behaviour.
The appellant's evidence to the effect that he had no knowledge of or involvement in Mr Dunn's fraudulent behaviour rings false, having regard to his involvement in providing the invoices and American Express statements to Mr Dunn, his signing of the funding notices necessary to obtain the sums the subject of the charges, and that he obtained the money that Mr Dunn defrauded.
It was also open to the jury to reject the appellant's evidence that Mr Dunn had 'stolen' the $55,000 that was paid to Agile Bookkeeping. Unlike the frauds the subject of the charges, the invoices raised by Mr Dunn in the name of Agile Bookkeeping were not forgeries. Each of the two invoices was submitted to the appellant who, in each instance, signed a funding notice authorising Investec to pay them. It was open to the jury to conclude that, at the time he signed the funding notices, he was aware of the invoices and that he agreed to pay them. It was also open to the jury to conclude that the appellant's accusations of theft were an afterthought designed to deflect blame away from him.
In his testimony, the appellant said, in effect, that he had trusted Mr Dunn in respect of his dealings with Investec, and that he did not pay sufficient attention to the documentation that he was asked by Mr Dunn to sign, because he was so busy in his dental practice. Having regard to the significant sums of money that were involved in the relevant transactions, it was open to the jury to reject this explanation.
In our opinion, upon our examination of the whole of the trial record, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant counselled or procured Mr Dunn to commit each of the alleged frauds. Alternatively, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant knowingly aided Mr Dunn in the commission of the offences by providing the documents which Mr Dunn altered, and by signing the funding notices knowing that the documents which supported the claims were false, and intending Investec to pay money which it would not otherwise have paid.
Based on our own assessment of the sufficiency and quality of the whole of the evidence that was adduced at trial, we have reached the conclusion that it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the three counts in the indictment. It cannot reasonably be said that the jury must, as distinct from might, have entertained a doubt about the appellant's guilt on any of the counts. The verdicts of guilty were supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. It has not been demonstrated that any of the verdicts was unreasonable or not supported by the evidence. It would not be dangerous to permit the verdicts to stand. We have arrived at those conclusions after paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the consideration that the jury has had the benefit of having seen and heard the witnesses.
Before leaving proposed ground 3, we observe that there is no evidence before the court to substantiate the accusations made by the appellant in his written and oral submissions that evidence was 'manipulated, edited, omitted or fraudulently obtained'. Nor is there any evidence of 'entrapment and purposeful malice', or 'duress, reward and bribery to obtain, alter and gathering of [sic] evidence'. In oral submissions, the appellant spoke of a 'collaboration' involving 'various bodies' which has resulted in his prosecution.[83] There is no evidence before this court to substantiate these allegations.
[83] Appeal ts 23.
We also observe that in support of proposed ground 3, the appellant once again complains that no original documents were submitted in the proceedings. We reiterate what we said earlier about this.
Another matter
Within the rubric of proposed ground 1, the appellant appears to allege that he suffered a miscarriage of justice because Mr Dunn's sentencing transcript was not tendered at his trial. No attempt was made at trial to adduce the transcript as evidence, and it is not clear why it was necessary to do so. The appellant has failed to demonstrate that he has suffered any miscarriage of justice because of the failure to tender the transcript.
Orders
The orders we would make are as follows:
1.Leave to appeal is refused on all proposed grounds of appeal.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS29 JUNE 2018
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