Director of Public Prosecutions v Kruger
[2021] VCC 2177
•19 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-02521
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAROLYN KRUGER |
---
JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 October 2021, 6 October 2021, 10 August 2021, 11 August 2021, 12 August 2021, 13 August 2021 & 15 August 2021 |
DATE OF RULING: | 19 November 2021 |
CASE MAY BE CITED AS: | DPP v Kruger |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2177 |
REASONS FOR RULING
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | |
For the Accused | Ms K. Argiropoulos |
HER HONOUR:
1The applicant Carolyn Kruger seeks leave to change a plea of guilty she entered in the County Court on 28 June 2019 to eight representative charges of theft committed between 3 January 2008 and 18 February 2015 from Triangle Waterquip Pty Ltd (Triangle).
2The total amount stolen was $3,780,672.93 in 401 separate transactions. The charges were contained in indictment H10694119.1.
3Ms Kruger claims a miscarriage of justice occurred in that she entered the guilty plea after her legal advisors wrongly decided on the basis of inadequate expert opinion, that she could not raise a defence of mental impairment to the charges pursuant to s20 of the Crimes (Mental Impairment And Unfitness To Be Tried) Act 1997.
4She asserts that the defence open to her was that at the time of each instance of offending, she was suffering a dissociative identity disorder (DID) and that the offending was carried out without her knowledge by an alter ego or second personality Witchie. Therefore at the time of the conduct constituting the offending, she neither knew the nature or quality of the conduct or that it was wrong. That is, 'she could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong'. (See s20(1) and (2) of the Act)
5The application was opposed by the Office of Public Prosecutions.
Background to the offending
6Initially employed by Triangle as bookkeeper, Ms Kruger was given increasing duties so that ultimately her business was contracted to undertake responsibility for all Triangle's accounting as well as supplying the company with IT equipment which her company also serviced. She had access to the business' bank accounts from which it was alleged she made unauthorised and dishonest transfers of funds to her own personal accounts and other accounts controlled by her.
7She was confronted by her employer and Triangle director, Walter Menke, on 18 February 2015, and admitted to taking $3200 without authority saying she desperately needed the money. A further dishonest transaction by Ms Kruger on that day of $7054 was also discovered by Triangle.
8Mr Menke then discovered that Ms Kruger had transferred $200,000 without authorisation and arranged for a meeting of directors and shareholders on
25 February 2015 which Ms Kruger attended. At that meeting she admitted she was connected to several companies to whose accounts Triangle money had been diverted and to taking $80,000 but not $200,000, and her employment was terminated. That meeting was recorded.9On 28 February 2015, Ms Kruger by email informed the Triangle directors of 26 unauthorised transactions made by her totalling $207,131.80 which she set out on an attached spreadsheet.
10On 29 May 2015, Ms Kruger and the directors signed a deed to the effect that Ms Kruger would repay the monies through the sale of several properties she owned, with a clause inserted that if the monies taken exceeded $1m Victoria Police would be contacted.
11A forensic accountant's examination of the Triangle accounts ultimately revealed Ms Kruger had taken approximately $4.5 without authorisation in about 500 transactions between 2008 and 2015. Ms Kruger was charged on 10 March 2017. She conducted a no-comment record of interview and was released on bail.
History of proceedings
12On 14 December 2017, a committal hearing proceeded by way of straight hand-up brief and a plea of not guilty indicated. On 23 February 2018, Ms Kruger's then counsel Rhamin de Kretser made an offer to plead to theft totalling $2.2m. This was refused by the Crown which made a counter-offer of $2.9m but on receipt of further material from the forensic accountant raised the amount to $3.5m which was then refused and negotiations ceased.
13The matter was set down for a 20 day trial due to begin on 1 July 2019. By that stage the question of fitness to plead had been raised and the matter was set down for a special hearing. Due to the imminent birth of his child, Mr de Kretser returned the brief in about March or April 2019. Ms Rosalind Avis of counsel was then retained to run the trial.
14By this stage, the Crown alleged Ms Kruger had stolen $4.5m. Ms Avis ultimately negotiated a plea of guilty to theft of $3,780,672.93 largely on the basis of monies transferred from Triangle to Ms Kruger's personal accounts.
15Between the committal and arraignment dates, there were a number of directions hearings and adjournments. At a directions hearing on 27 June 2019, Ms Avis informed the court the matter had been resolved to a plea. On that day in conference with her legal advisors, Ms Kruger signed a document prepared by Ms Avis which confirmed her instructions that she wished to plead guilty to the eight charges which were fully set out in that document.
16In the document she further confirmed (and this is my summary):
· that by pleading guilty she accepted responsibility for the offending;
· that she had been advised the prosecution case against her was strong;
· that she had been assessed as fit to stand trial;
· that she had been advised a defence of mental impairment was not available to her;
· that she was aware she could contest the charges if she wished;
· that by pleading guilty the charges would be entered on her criminal record;
· that she would serve an immediate term of imprisonment as a result of the plea;
· that her plea of guilty would likely result in a reduction of any term of imprisonment imposed;
· that she had been advised that once made her plea of guilty could not be changed without the court's leave;
· that she was pleading guilty of her free will and choice 'without any undue force or pressure to do so'.
17On 28 June 2019, Ms Kruger was arraigned and entered a guilty plea before His Honour Judge Carmody of this court. The adjourned plea date of
25 October was further adjourned as Ms Kruger underwent surgery. On or about 25 November 2019, after emails from Ms Kruger to her solicitors, challenging the negotiated theft total Stary Norton ceased to act.18On 9 December 2019, Ms Kruger engaged Galbally Parker Lawyers. She was assessed at length by a clinical psychiatrist, Dr Sylvia Solinsky who has expertise in the diagnosis and treatment of DID and who ultimately gave an opinion that it was likely Ms Kruger's offending was carried out on each occasion while she was in a state of disassociation and in fact performed by Witchie. That is, that a mental impairment defence was available to her. An application for leave to change her plea was then commenced.
Ms Kruger's psychiatric history and diagnosis of DID
19According to the September 2018 report of her treating psychologist Angela Scanlon, compiled for the purposes of a TAC claim, Ms Kruger first attended on
Ms Scanlon in November 2008 and was diagnosed with a complex post-traumatic stress disorder. She revealed a traumatic history of parental physical and emotional abuse.20She attended on Ms Scanlon between November 2008 and January 2010 and was described as, 'an engaged and reliable client who is committed to working through past events in her life'. She returned to Ms Scanlon for further treatment between August and November 2011 for anxiety arising from physical injuries, difficulties with her daughter and stress associated with the sharp downturn of her business and the sacking of nine staff.
21Between July and August 2012, she attended on Ms Scanlon for stress arising from her daughter's burgeoning relationship with Ms Kruger's mother and sister which she found very distressing. She received further treatment between October 2015 and January 2016 for anxiety, stress and depression arising from a cancer diagnosis and her bankruptcy.
22In March 2016, Ms Kruger was very seriously injured in a car accident subsequently requiring multiple surgeries and resulting in chronic pain. She began attending again on Ms Scanlon who administered Eye Movement Desensitisation and Reprocessing therapy (EMDR) during which it emerged that Ms Kruger suffered from DID. According to Ms Scanlon's report, this was because the EMDR therapy, 'broke down dissociative barriers and uncovered layers of trauma that had been contained by a previously unknown emotional part of the personality. These memories had been repressed and held in another part of the personality and had not surfaced in the trauma processing in 2008'.
23An example of the repressed memories was Ms Kruger's recollection of sexual abuse at the hands of her father, which she had not previously revealed.
24In her report, Ms Scanlon described this condition by reference to the Diagnostic and Statistic Manual of Mental Disorders (DSM 5) definition which is:
251. Disruption of identity characterised by two or more distinct personality states which may be described in some cultures as an experience of possession. The disruption in identity involves marked discontinuity in sense of self, and sense of agency, accompanied by related alterations in affect, behaviour, consciousness, memory, perception, cognition and/or sensory motor functioning. These signs or symptoms may be observed by others or reported by the individual;
262. Recurrent gaps in the recall of everyday events, important personal information and/or traumatic events that are inconsistent with ordinary forgetting.
27Other points of definition from the DSM 5 I have not repeated, as in my view they were not important to the definition as suffered by Ms Kruger.
28Ms Scanlon reported that the major effects of DID on Ms Kruger, which she said would be lifelong, were, in summary, periods of extreme emotional vulnerability, periods where she could not remember what she had said or done, an inability to form a stable life partnership, difficulties with self-care such as getting enough sleep which would then negatively impact her daily functioning, deterioration of physical health due to mental trauma, and a struggle with the natural ageing process and an ability to work full time in her own business as she had previously done.
29Ms Kruger was then referred to and assessed by psychiatrist
Dr Ruwan Haputhantrige who has treated her on about a six weekly basis ever since. She also continues to be treated by Ms Scanlon on, as I understand it, about a fortnightly basis.30In a short report dated 12 December 2017, Dr Haputhantrige wrote that he treated Ms Kruger for post-traumatic stress disorder, Dissociative Identity Disorder and recurrent depression and that her anxiety had significantly increased against the background of an upcoming court appearance on
14 December 2017, presumably the committal proceedings. He made no comment as to the effects of DID on Ms Kruger's overall functioning or the offending.31At this hearing Ms Kruger also gave evidence about the personality Witchie who became known to her after EMDR therapy, whom she described as a 25 year old, who was very protective of Ms Kruger. Ms Kruger said she was now co-conscious with Witchie, in that Witchie could tell what she and Ms Kruger thought and that she, Ms Kruger, could tell what Witchie thought. (See transcript 193).
32She said that for the past three years Witchie had talked to her in her left ear, was co-conscious with her most of the time, communicated with her all the time and that she was aware of her all the time. (See transcript 291-292)
33She said Witchy had told her she stole the money from Triangle in order to save Ms Kruger's business.
Psychiatric assessment of Ms Kruger by Dr Leon Turnbull
34On 10 January 2019, Ms Kruger was assessed as fit to plead by forensic psychiatrist Dr Leon Turnbull. The report was organised by Stary Norton's solicitor Jarrod Behan who had carriage of the matter from September 2018 after Ms Kruger's previous solicitor Claire Morris left the firm.
35In evidence, he said that on 10 September 2018 he emailed Dr Haputhantrige for a report. Dr Haputhantrige proved difficult to get hold of and then ultimately suggested to Mr Behan that it would be more appropriate to obtain a report from a forensic psychiatrist which could be prepared in consultation with him.
Mr Behan said Dr Haputhantrige mentioned Dr Turnbull to him as someone he knew. (See transcript 255-257).36In his report dated 14 January 2019, under the heading 'opinion' Dr Turnbull stated:
'Ms Kruger suffers multiple psychiatric disturbances largely related to childhood abuse that amount to post-traumatic stress disorder. I am not sure about dissociative identity disorder as I would need to get to know her better clinically. It is not a condition I frequently encounter or diagnose.'
37Dr Turnbull assessed Ms Kruger as fit to plead.
38On 4 June 2019, Dr Turnbull further assessed Ms Kruger for a possible mental impairment defence of DID which he concluded was not available. In his report 9 June 2019, he stated:
'For the purposes of this report, I am not inclined to enter into the diagnostic niceties, other than to say I appreciate this lady has been troubled by mood disturbances and perhaps there have been episodes of disassociation.'
39He continued:
'On the basis of the current materials, that being the scope of the charges, Witchie not being involved in the transactions outside of these, the allegations requiring clear goal-directed behaviour, and the transactions as best I can read them, if close to, if not all being for the benefit of Ms Kruger, I am not inclined to support the idea that an alternative personality provided enough of an adequate explanation to explain the offending'.
40Dr Turnbull went onto recommend that Ms Scanlon provide a further report, as she perhaps had, 'a deeper and more nuanced understanding of this lady's difficulties than I have been able to obtain in the narrow remit that I have been deployed'.
41In evidence Dr Turnbull said apart from legal materials, he had little further information from the reports of Dr Haputhantrige and Ms Scanlon. He said he left a message for Ms Scanlon to call him, as she believed she had greater knowledge of Ms Kruger, but she did not reply.
42In his evidence Mr Behan said that in hindsight it would have been preferable someone other than Dr Turnbull make this latter assessment. (See transcript 262).
43In her evidence, Ms Avis said she did not recall seeing Dr Turnbull's first report. (See transcript 76), but if she had she might not have thought he was the appropriate person to prepare the mental impairment report (See transcript 81).
44I note there was also evidence from Ms Avis and Mr Behan that they discussed obtaining a second assessment regarding a mental impairment defence but decided Legal Aid was unlikely to grant it. In my view this was not due to concerns at the time about Dr Turnbull's expertise, but as a means of possibly obtaining a different opinion which would allow the mental impairment defence to be run.
Applicant's submission
45The complaint by Ms Kruger is that Dr Turnbull had inadequate experience of DID to determine whether she had a mental impairment defence to the charges, and that this was evident from the statement in his first report that this was not a condition he frequently encountered or diagnosed.
46It was submitted that Ms Kruger's legal representatives advised her she enter a plea of guilty on the basis of that inadequate opinion. Ms Argiropoulos for Ms Kruger essentially submitted that Dr Solinsky's later far more expert opinion, that it was reasonably possible that each theft was committed by an internal personality unknown to Ms Kruger, who at the time was in a dissociated state, meant that an arguable defence of mental impairment existed and Ms Kruger would suffer a miscarriage of justice should she be denied the opportunity to present this defence in relation to the charges.
The evidence
47Ms Kruger's legal representatives, Mr Behan, Mr de Kretser, Ms Avis and
Ms Reader gave evidence on the hearing as did Dr Turnbull, Dr Solinsky and Ms Kruger herself. Each were cross-examined by Mr Pickering for the Office of Public Prosecutions.48Forensic psychiatrist Dr Danny Sullivan, who also assessed Ms Kruger, and prepared a report on behalf of the OPP, did not support a mental impairment defence and he also gave evidence and was cross-examined by Ms Argiropoulos
49The Stary Norton file together with the reports of Dr Solinski and Dr Sullivan were also exhibited. For reasons that will become apparent I do not find it necessary to entirely summarise the evidence arising from each.
Legal principles
50In Weston (a pseudonym) v The Queen (2015) 48 VR 413, at paragraph 109, Redlich J conveniently distilled the principles which the authorities have established surround a charge of plea application. They are as follows:
511. The basis of a plea on arraignment is that in open court an accused freely says what he is going to do, and the law attaches so much importance to a plea of guilty in open court, that no further proof is required of the accused's guilt;
522. The plea of guilty constitutes an admission of all of the legal ingredients of the offence and is the most cogent admission of guilt that can be made. Its significance rests in part upon the high public interest in the finality of legal proceedings;
533. To permit the withdrawal of a plea of guilty before conviction or the overturning of conviction on appeal, where the integrity of the plea has not previously been challenged, it depends on there being in the court's opinion a miscarriage of justice, if the applicant were held to his plea;
544. The applicant seeking to question the integrity of his plea whether before or after conviction bears the onus of establishing such miscarriage;
555. To impugn the integrity of the plea, whether before or after conviction, the applicant must show an issuable question of guilt and the existence of some circumstances which affects the integrity of the plea so there would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or as his plea may have been induced by fraud or threats or other impropriety, or that it was not offered with the consciousness of guilt;
566. It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise. The exercise of the discretion is not to be fettered by any preconceptions of limitations, arising from the approach taken in previous decisions;
577. A claim, whether before or after conviction, that circumstances which exist affect the integrity of the plea process, must be approached with caution.
58Two further principles outlined by His Honour were doubted in separate judgments by their Honours Whelan and Kaye JJ as creating an unwarranted addition or qualification on the applicable test of whether a miscarriage of justice would occur if a guilty plea was not permitted to be withdrawn. The view of their Honours was recently approved by the Court of Appeal in Jamieson v The Queen [2017] VSCA 140 at paragraph 101.
59Ms Argiropoulos for Ms Kruger submitted that Dr Solinsky's assessment report and evidence established an arguable defence to the charges which to avoid a miscarriage of justice, she should be permitted to run. Essentially as I understood it, Ms Argiropoulos submitted that it was not for the court to examine the likely success of the proposed defence but only as to the issue of whether it was arguable, which she said had been established by the reports and evidence of Dr Solinsky, an expert in the diagnosis of DID.
60In my view, to establish whether a miscarriage of justice has occurred, some examination of the proposed defence was necessary. Notwithstanding that it included evidence from Ms Kruger that she had no memory of carrying out the offending, it appears not to be asserted that she did not carry out the alleged transactions, although she seemed in email correspondence at times to dispute the illegitimacy of some of them. Dr Solinsky’s evidence was that because of Ms Kruger's DID, it was, in fact “highly probable”, that unbeknownst to her all the thefts were carried out by Witchie.
61I note the provisions of s21(1), (2) and (3) of the Crimes (Mental Impairment and Unfitness To be Tried) Act to the effect that a person is presumed not to be suffering a mental impairment at the time she commits an offence, that this is a question of fact of which the jury must be satisfied on the balance of probabilities, and that the accused bears the onus of rebutting that presumption.
62However an examination is necessary in my view because of the nature of DID itself. This is not a case where for example an accused is claiming she offended whilst in the grip of a psychotic condition such as schizophrenia of which objective independent observations can and usually are made. Dr Sullivan stated that DID was in some ways unverifiable, 'in that it relies on a self-report of the person often without clear evidence of behavioural change or manifestations which support that'. (See transcript 436)
63Such evidence could perhaps be provided by others who gave evidence of a person behaving in continuously contradictory ways, reporting unexplained forgetfulness on matters which would not be expected or even of a few like-state.
64A letter from Ms Kruger's close friend Karen Martin, with whom she lives, and for whom she now works, dated 2 December 2017, addressed to 'whom it may concern' was included in the subpoenaed solicitor's file. Ms Martin did state she had known and worked with Ms Kruger since 2010 and had observed her on many occasions to exhibit inconsistent behaviour which she said, 'never failed to show up to me on a very regular basis'.
65She wrote that when Ms Kruger was diagnosed with DID, she believed this explained those inconsistencies and that she could now pick when another personality was present in Ms Kruger. However Ms Martin did not give evidence at the hearing and no other like material was produced.
The psychiatric evidence
66Dr Solinski has practiced in the treatment of DID for 20 years and it is a major part of her practice as a clinical psychiatrist. Her assessment of Ms Kruger was clearly very thorough based as it was on 20 hours of interview over 10 sessions. (See transcript 386)
67She compiled three reports, the major report dated 15 May 2020, being extremely detailed, 45 pages long and with photocopies of photographs, descriptions and handwriting supplied to her by Ms Kruger attached as appendices.
68However Dr Solinsky is a treating not forensic psychiatrist. She did not confer with either Dr Haputhantrige or Ms Scanlon, (see transcript 407) who had been treating Ms Kruger's various conditions including DID for the past six years. She obtained no information therefore from them of their observations of the effect of DID on Ms Kruger's behaviour or its likely effect in her offending.
69She did have a copy of Ms Scanlon's report but did not know she was still treating Ms Kruger. Nor did she check to verify anything said to her by
Ms Kruger. She was not aware of Patrick and Not Christine, personalities that Ms Kruger described in her evidence on the hearing.70Dr Solinsky’s conclusions and opinion were entirely based on Ms Kruger's objective reporting including conversations that she said she had with Witchie, who according to Dr Solinski's testimony, provided her with information that she was responsible for the thefts and that she was 'so sorry' for hurting Ms Kruger. (See transcript 424) I should add of course that additionally Dr Solinsky was relying on her own considerable expertise and experience in diagnosing DID.
71Dr Solinsky gave evidence that she formed the view that Ms Kruger had not in her present state carried out even one of the hundreds of thefts between 2008 and 2015 because she wanted to steal, because within the rest of her assessment of Ms Kruger, 'it was not within her ambit of functioning to steal'. She then agreed with Mr Pickering's proposition, that her assessment of Ms Kruger 'as herself' was that she was honest and would not steal (See transcript 421).
72When Mr Pickering asked her how she could say that 'for every one of those over a seven year period that it is reasonably possible, even highly probable engaged in every one of those transactions while in a dissociative state' she replied, 'Well I can and I did'. (See transcript 420).
73Both Dr Sullivan and Dr Solinsky agreed DID was a controversial diagnosis among psychiatrists and psychologists. Dr Solinsky said that this was because it was almost always associated with the abuse of children and that there were, 'a lot of people who would like that not to be highlighted'. (See transcript 426).
74Dr Sullivan said that it was contentious because others would regard it as, 'either a variant in personality disorder or as a way of conceptualising the effects of trauma upon a person's personality but a way which is defined by the therapist, or is determined by the therapist suggesting or providing a framework into which the patient then adopts their experience'. (See transcript 436).
75Dr Solinsky also agreed that she was in a minority view among psychiatrists about her view of the greater prevalence of DID generally in the population. (See transcript 426-427). She said the lack of training to undergraduate psychiatrists and psychologists about trauma and association and disassociation was 'scandalous'. (See transcript 426).
76Dr Solinsky also said in evidence that she did not agree there was no issue in Ms Kruger's case with fitness to plead, but could not detail what the criteria for fitness to plead was. (See transcript 412). She also agreed she was almost entirely lacking experience in giving evidence in court matters relating to criminal activity. Without in any way seeking to denigrate Dr Solinsky's experience and expertise in diagnosing and treating DID, I was unable to accept that she had the capacity to give expert forensic, psychiatric evidence that
Ms Kruger was mentally impaired at the time of each of the hundreds of thefts alleged.77This lay in her lack of forensic expertise, the fact that the basis of her opinion lay in Ms Kruger's unchecked subjective reporting of the circumstances of her offending, and what was to my mind Dr Solinsky's overvehement denial of the difficulties of her conclusion, absent the existence of independent supported evidence accompanying her opinion, the number of transactions and the fact that they began occurring around 12 years before she met Ms Kruger.
78While Dr Sullivan, a forensic psychiatric expert well known to these courts, described experience with DID patients far more circumscribed than that of
Dr Solinsky, I did accept his view that it was unlikely an expert bookkeeper as Ms Kruger clearly was, would fail in her normal conscious state to have missed the account imbalances which must have become apparent over time. This is despite Dr Solinsky's evidence that this could occur, because various parts of a DID sufferer go to great lengths to keep their activities secret from each other and that this would explain this phenomenon.79Dr Turnbull's reports were scant in my view and may, according to his evidence, have been based on interviews with Ms Kruger as at least 15 minutes long. His evidence was also that on checking with peers, he formed the view that DID would not in any event satisfy a mental impairment defence on legal grounds because even in a state of dissociation one's moral compass essentially remained intact. (See transcript 165).
80I do accept however that DID has been accepted as a mental impairment defence in New Zealand and on a number of occasions in the United States, and read the authorities provided to me by Ms Argiropoulos. I do not intend to traverse that line of argument raised by Dr Turnbull in this judgment.
Other evidence
Mr de Kretser
81Ms Kruger emailed solicitor Claire Morris in 30 November 2017 in which she clearly outlined her knowledge of her 25 year old alternative, although she did not refer to her as Witchie, but as 25 year old Carolyn, and her attempts to interfere with Ms Kruger's activities including the writing of that email.
82The evidence of Rahman de Kretser was that he was instructed to vacate the committal and engage in negotiations with the Crown in order to resolve the matter, although he did not say from whom. (See transcript 40). He said that before making a plea offer to the Crown on 23 February 2018 Ms Kruger gave him instructions that she was 'prepared to wear' (his words) thefts totalling $2.2m. (See transcript 39). He said she 'was willing, she understood'. (See transcript 40).
83He said in a lengthy conference Ms Kruger raised defences in relation to legitimate charges for bookkeeping services, IT and office supplied that she had provided, but he challenged her on these which he said on his assessments, would have amounted to $400,000-$600,000 per year. (See transcript 40) Ultimately she instructed she was prepared to accept responsibility for about $2.2m worth of theft.
84Mr de Kretser said he spent an amount of time dissuading Ms Kruger from reporting Triangle for fraud to the Australian Tax Office and WorkCover as it would not help her case, and might result in her facing charges for complicity in that alleged offending. (See exhibited email on Stary Norton file and transcript 68).
85Mr de Kretser said he believed the Crown case was strong due to Ms Kruger's admissions to Mr Menke, the 25 February meeting, and the financial reparation that she made, as well as the fact that Triangle money was found to have been diverted to her accounts. (See transcript 40-41).
86He said he took Ms Kruger through a number of individual transactions. (See transcript 52), that he may even have had a spreadsheet going into quantum per year (See transcript 62). At the time he made the offer he had received no instructions from Ms Kruger that she did not remember the transactions or he would not have made such an offer, nor was it an issue to that effect. (See transcript 61-62).
87He said that around the time the offer was rejected and a higher figure proposed, Ms Kruger began saying, 'Well I accept that I took $2.2m but this other personality must have taken the other amount', and that he did not recall the other personalities being mentioned before that. (See transcript 63). He said Ms Kruger identified the other personalities as Witchie and Little Carolyn and first spoke about them to him in around March or April 2019. (See transcript 74).
88Mr de Kretser said at this point he became concerned and flagged the fitness issue with his instructor, and also told the court and the Crown that this needed investigation and that he was not comfortable with taking instructions (See transcript 75).
89The negotiations stalled after the Crown rejected the offer of $2.2m and proposed the greater amounts of $2.9m and $3.5m. In an email to Ms Kruger dated 6 February 2019, exhibited in the solicitor's file, Mr de Kretser gave “firm advice” that she give instructions to recommence negotiations immediately and warned her of the dangers accompanying running a trial.
90On around 4 February 2019, by email he advised Mr Behan to obtain a mental impairment assessment 'just to cover ourselves' which in evidence he said arose in response to Ms Kruger's email also of 4 February where she complained that her personality disorder was being dismissed. Prior to this he had not considered that a mental impairment defence was available. (See transcript 46-47).
Ms Avis
91In her evidence, Ms Avis said from her first conference with Ms Kruger in
May 2019 she spoke of DID and that she had no memory of many things and that the money must have been taken by Witchie. (See transcript 84). She said she initially felt very sympathetic to Ms Kruger who became extremely distressed when discussing her past and discussed with Mr Behan the possibility of getting legal aid for another report, which might support a mental impairment defence. (See transcript 85). Although, as I have said, this appeared not to be doubt over Dr Turnbull's report.92She spent many hours listening to Ms Kruger's concerns but after a conversation with Dr Turnbull, advised her that she could not call him to give evidence of a mental impairment defence. She also told Ms Kruger it would be difficult to run a trial without psychiatric evidence.
93Ms Avis gave evidence that if she had known of the contents of Dr Turnbull's first report she would not, as I have previously said, have thought he was the appropriate person to make the mental impairment assessment. Ms Avis said that at times in conference, Ms Kruger appeared to switch to Witchie or Little Carolyn, the second personality being a seven year old child. (See transcript 114).
94She said however that Ms Kruger's instructions began to change from having no recollection of the transactions, to knowing that it was Witchie, so that, 'I also had doubts on separate issues as to how truthful she was being to me about other things'. (See transcript 114).
95Ms Avis described an incident where Ms Kruger arrived for a directions hearing with her arm in a sling saying she could not drive so had to take a train after court to a medical appointment in Frankston and then after the hearing produced her car keys which she held in the hand in the sling. (See transcript 116).
96Ms Avis said she became very cautious of Ms Kruger's instructions. (See transcript 115). She insisted an instructor be present at conferences with
Ms Kruger and she became very careful and objective when giving advice as she had a feeling, 'I'd be here and lo and behold I am'. (See transcript 117).97At transcript 150 she stated, 'I felt that whatever I did would be misconstrued later. I felt that…her entering a plea was likely to be resiled later. I felt I wanted a witness to be present to all the advice that I gave her. I didn't want her to feel pressured or ill-informed in regards to entering the plea. I had concerns as to whether she was telling me the truth or whether I was being manipulated'.
98Ms Avis said she was aware Ms Kruger did not feel Mr Behan or Mr de Kretser were sympathetic to her and took special care to give her time, saying, 'I wanted to take time for her to go away to think about it, to mull over it, to take advice from friends. I specifically didn't want her to feel pressured'. (See transcript 151).
99In regards to the 27 June 2019 conference, Ms Avis said she went through the document with Ms Kruger, confirming the instructions to plead and that there were absolutely no signs from Ms Kruger that there were any issues for her, and that in fact she was less emotional than at other conferences. (See transcript 121).
100She said Ms Kruger was adamant she did not want to run a trial (see transcript 122) and that the closer she got to the trial date, the less Ms Kruger wanted to run the trial on the basis that her health would not withstand it (see transcript 123).
101Ms Avis did say that following the arraignment Ms Kruger cried and said it was very hard to plead to something of which she had no memory. (See transcript 121). Ms Avis gave evidence that she had no concerns Ms Kruger did not understand her options and gave her instructions about the negotiations and making a plea only to those transaction where monies went into her personal accounts. (See transcript 130) She said she made it clear to Ms Kruger that she would be gaoled and this would be for a period of years (See transcript 209).
Alana Reader
102Ms Reader was a solicitor at Stary’s who took notes during the 27 June 2019 conference and her evidence was confined to these. The significance of that evidence was that she believed her notes revealed that Ms Avis was telling
Ms Kruger her health would be adversely affected by running a trial and that the evidence made it impossible for her to run a trial. These were propositions which were put to Ms Avis and which she denied. Ms Reader did agree in cross-examination that she could not be '100 per cent certain of that'. (See transcript 240).103Ms Reader also gave evidence that Ms Kruger appeared to be saying that some of the transactions were legitimate payments to her and that she did not remember others. She said Ms Kruger appeared to understand the document of instructions that she signed.
Ms Kruger
104Ms Kruger said that when she pleaded guilty on 28 June 2019 she did not believe she was guilty. (See transcript 100). She said she became aware of her other personalities during EMDR therapy and described Witchie, Little Carolyn, Patrick and Not Christine. She said she had periods where she lost time, lost a day and was now aware of gaps in her past, such as having no memory of her final year of primary school, the first year of secondary school or of moving house at that time.
105Ms Kruger said that Dr Turnbull interviewed her on each occasion for about 15 minutes, felt he was dismissive and that her lawyers absolutely did not understand her mental condition and dismissed any mention of DID as merely making excuses for what had happened. Ms Kruger said that she had been unable to pick up or examine the folders of materials given to her by her solicitors to go through until after the guilty plea. (See transcript 199). She said she then went through her invoices and went to bed believing she had matched them via post it notes to each of the charges.
106The next day she discovered that a number of the charge sheets did not have attached post its and that some of those sheets had handwriting on them that were not hers. 'And I realised here were all the charges and that it actually happened'. (See transcript 200).
107She said that when she woke in the morning, she saw Witchie had, 'obviously taken over some of it so I couldn't see the true offences'. (See transcript 200). By this she meant that whenever an invoice came up that Witchie did not want her to see she would bypass it.
108Ms Kruger said the enormity of what had happened and what had been done was 'just awful' and that she wanted to die. (See transcript 200).
109Taken by her counsel to an email she wrote to her lawyers describing this incident on 29 April 2019, which was before the plea, she first said that not all of that email was written by her and some of it was written in language she would not have used. Ultimately in her evidence she denied having any memory of writing this email, or of the spreadsheets which accompanied it.
110Ms Kruger denied any memory of instructing Mr de Kretser to plead guilty (see transcript 206 and 339) and said that Witchie had later let her know that she had in fact stolen the $2.2m. She said she did not remember being told by Ms Avis she could not run a mental impairment defence. (See transcript 190 and 208). She said she was told she would receive gaol but was not told for what period of time.
111Taken through the document of instructions to plead, she said she remembered points 1 and 2 but not 3 to 10. She recalled being told it was a strong case, but (again) not that she could not run a mental impairment defence. She said Witchie’s handwriting appeared on amendments on the prosecution opening given to her that day, and not hers.
112Of the charges, she said about a third of them were legitimate payments for services by her and she had no memory of the other two thirds of the transactions and that she did not make them. (See transcript 217). She said Witchy told her that she did those. She said she believed Witchy because she was a 'pretty honest person' who thinks she is Ms Kruger's protector. (See transcript 217-218).
113Early into cross-examination Witchie apparently appeared and Ms Kruger's evidence was delayed for a day. In the interim I made it clear that if Witchie emerged again the evidence could not continue and I would be unable to take any of Ms Kruger's evidence into account. Witchie did not emerge during the remainder of Ms Kruger's cross-examination and re-examination.
114Ms Kruger continued to insist that a third of the alleged illegitimate payments were in fact legitimate payments for services. (See transcript 295, 310 and 312). She said she could recall going through the figures with Mr de Kretser and him challenging her about any invoices she might provide as simply having been printed off by her at any time. (See transcript 320). She could not recall the prosecution counter-offer figures going up.
115Again, as I have said, she gave evidence that she had no memory of writing the
29 April 2019 email or of the accompanying spreadsheet. Ms Kruger said none of the emails to her solicitors threatening to report Triangle for ATO and WorkCover fraud were written by her, (see transcript 325) but she did recall talking to Mr de Kretser about them.116She said it was not in her nature to be vindictive. (See transcript 326). Her evidence was that Witchie had written those emails and wished to make those complaints.
117She said she could not remember the offer of $2.2m, the counter-offer of $2.9m and $3.5 respectively offered by the Crown, and only heard of these things during 'this court case'.
118Mr Pickering took Ms Kruger through a number of emails as did Ms Argiropoulos which were to her solicitors from the exhibited file, most of which she said she either had no recollection of writing or parts of which had been written by Witchy.
119Ms Kruger agreed it was her signature on Ms Avis' document of instructions and not Witchie’s but said she could not recall signing that document. (See transcript 351). It was put to her that between February 2018 and September 2019 there was not one discussion in the emails about the fact that Ms Kruger had never made the offers to the Crown.
120Dr Solinsky gave evidence that Ms Kruger's inability to remember parts of emails, or giving instructions, were entirely consistent with her DID with Witchie in fact performing those functions unbeknownst to Ms Kruger or able to be remembered by her. She said that Ms Kruger's inability to bring herself to go through the materials in preparation for her trial was also consistent with that condition.
121I had a great deal of difficulty with Ms Kruger's evidence. First she was adamant that the realisation that large amount of monies had in fact been illegitimately taken from Triangle by Witchie occurred after the plea. Her email of 29 April 2019 was the only email detailing this event. The problem for Ms Kruger that this meant she was capable of going through the material at a time before the trial was to be heard as opposed to her evidence that she was unable to do so before the plea arraignment in June.
122Confronted with the date inconsistency, Ms Kruger moved to a position of denying any knowledge of that email and the accompanying spreadsheet, even though she gave very vivid evidence of this experience very soon into her evidence in chief. Emails postdating the plea from 22 August 2019 revealed in my view a determination by Ms Kruger to challenge the amounts she had pleaded guilty to at arraignment.
123I do not accept on the evidence that she was incapable of doing this before the plea or of going through the materials to assist in her own case. Nor do I accept she had no memory of instructing Mr de Kretser to make the offer of $2.2m. I accept that Ms Kruger made no other mention of Witchie or her lack of memory around the transactions to Mr de Kretser until after that offer was rejected and greater figures emerged in the wake of the forensic accountant's continuing investigation.
124Ms Kruger, in evidence, demonstrated in my view fairly good memory of her discussions with Mr de Kretser and I do not accept evidence of her sudden failure to give instructions or of memory to give instructions of an offer to be genuine. I also accept Mr de Kretser's evidence that Ms Kruger told him any amounts over $2.2m would have been due to actions by Witchie which runs counter to her assertion now that Witchy was responsible for all illegitimate transactions.
125Nor do I accept Ms Kruger's evidence of memory failure in relation to her instructions to Ms Avis during negotiations or of signing the document of instructions prepared by Ms Avis.
126Of note is that when Witchie emerged during cross-examination in this court, she presented as aggressive and referred to Mr Pickering as 'fuckface'. Neither Mr de Kretser, Mr Behan, Ms Avis or Ms Reader reported any such personality switch during their extensive personal dealings with her which in my view should have been apparent should there have been the switch reported by Ms Kruger. Nor did they report any apparent failure by Ms Kruger to understand her situation or their advice.
127I accept that whilst they may not have understood DID, Mr de Kretser and
Ms Avis in particular were experienced counsel who were alert to the ramifications of any mental impairment on the proceedings and took appropriate care in that regard. Ms Kruger herself consistently gave evidence that she had no memory of advice that she did not have a mental impairment defence available to her. I do not accept that evidence, but in any event it goes against her assertion that she entered a plea of guilty in circumstances where she was pressured or did not understand her options, or the availability of a mental impairment defence, which was wrongly relayed to her by her legal instructors.128Insofar as the inadequacy of Dr Turnbull's assessment is concerned, as I have indicated despite the shortcomings of his assessment and experience, I am unable to find that Dr Solinsky has the expert capacity to posit the opinion that it is highly probable or even reasonably possible that Ms Kruger was in a dissociated state on each of the hundreds of occasions she illegitimately moved money from the Triangle account between 2008 and 2015.
129Whilst as I have said I accept her expertise and diagnosis and treatment of DID, I found Dr Solinsky to be a partisan witness with an adequate understanding of or experience of that forensic role. I accept the evidence of Dr Sullivan that given her expertise, it was unlikely Ms Kruger, over those seven years, would have missed the inevitably large amounts missing from the accounts she was employed to administer, even if she was unaware of the illegal transactions.
130In my view the proposed evidence of mental impairment does not amount to an arguable defence. In my view the evidence is speculative at best and for what it is worth, although I accept this is not in my purview it is most unlikely to be accepted by a jury.
131I am not persuaded therefore that Ms Kruger has demonstrated either the invalidity of her plea or that she has an arguable defence of mental impairment, such that a denial to her application would amount to a miscarriage of justice and the application is denied.
132Despite my finding I do wish to particularly compliment Ms Argiropoulos on the skilful and careful way in which she conducted the application on Ms Kruger's behalf. Thank you.
‑ ‑ ‑
2
0