Director of Public Prosecutions v Swan
[2018] VCC 2208
•7 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-14-00204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TANYA VIRGINIA SWAN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3–6 September 2018 | |
DATE OF RULING: | 7 September 2018 | |
REASONS FOR RULING: | 21 December 2018 | |
CASE MAY BE CITED AS: | DPP v Swan | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2208 | |
REASONS FOR RULING
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Subject:Whether accused’s evidence on oath at previous trial is capable of being relied upon by the prosecution as post-offence incriminating conduct – whether a post-offence representation by the accused to a witness as to her employment and income is admissible evidence.
Catchwords:
Legislation Cited:
Cases Cited:
Ruling:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Y Hardjadibrata | Office of Public Prosecutions |
| For the Accused | Mr M Thomas | Victoria Legal Aid |
HER HONOUR:
1 Tanya Virginia Swan (the accused) is to stand trial on two charges of obtaining a financial advantage by deception. Each of these charges relate to allegations that she dishonestly obtained a financial advantage, namely a loan from Westpac Banking Corporation, by falsely representing a number of things in her loan application, and supporting that application with false documents. Most of the evidence relied upon by the prosecution has been recorded from an earlier trial held in November, at which the jury were unable to arrive at a verdict.
2 Charge 1 relates to a loan advanced to the accused on 16 March 2012 in the sum of $960,000. Charge 2 relates to a loan advanced to the accused on 8 June 2012 in the sum of $1,280,000.
3 The prosecution case is that, on 14 February 2012, the accused attended the Westpac Bank in Balaclava and met with the home finance manager, Ms Natalie Shafir. Also present at that meeting were Mr Jason Fischman, a finance broker, apparently engaged by the accused, and Mr Lex Carter, an architect, with whom the accused apparently was in a personal intimate relationship.
4 The accused had equity in a property at 46 Valley Parade, Glen Iris (“the Glen Iris property”). She had purchased this property with her father some years earlier. Her father died in or about 2009. A title search shows that in or about March 2012, she became the sole proprietor of that property (which was unencumbered), after her mother, who had acquired her father’s share, transferred that share to the accused. This property was valued by an independent property advisor as having a market value of $1.2 million on 29 February 2012.[1] The accused apparently wanted to demolish the dwelling on the Glen Iris property and build two townhouses and, for this reason, was seeking a first mortgage loan in the sum of $960,000 from the bank.
[1] Tab 3 of Jury Book (Exhibit “A)
5 In addition, approximately one week before attending the meeting with Ms Shafir, the accused had signed a contract to purchase a property at 43 Finch Street, Malvern East (“the Malvern property”) for $1,600,000. She was seeking a mortgage loan from the bank in relation to this property in the sum of $1,280,000 in order to fund the balance of the purchase price (part of which she had paid by way of a $100,000 deposit) and undertake some renovations at that property.
6 The prosecution alleges that, at the meeting with Ms Natalie Shafir on 14 February 2012, in order to obtain each of the loans, the accused made a number of false oral representations concerning her income. In particular, she stated that she was working as a sales marketing manager, earning $390,000 gross per annum. Also at that meeting, the accused supplied a number of false documents in support of the loan applications. One of these was a PAYG payment summary for herself, as an individual, for the year ending 30 June 2011. This showed her to have received gross payments of $390,000, with an amount of $156,000 tax withheld, and the name of the payer to have been Australian Rigging Supply Pty Ltd[2]. In addition, she supplied two payslips from Australian Rigging and Lifting Pty Ltd, for the fortnights from 10 to 23 January 2012 and from 24 January to 6 February 2012 respectively. These payslips recorded her classification to be National Marketing Manager, with an annual salary of $390,000 and, a fortnightly pay of $15,000 gross, and $8,900 nett.[3] Further, the accused supplied Commonwealth Bank statements from 1 November 2011 to 31 January 2012, bearing her name and address and a Commonwealth Bank account number. These statements showed credit deposits of $8,900 per fortnight, described as being from “128594 Aust Rigging, Wages, Aust Rigging”.[4]
[2] Tab 13 of Jury Book (Exhibit “A”)
[3] Tab 14 op.cit
[4] Tab 15 op.cit
7 The false information (that the accused was employed as “Manager – sales/marketing/advertising” and had a gross annual income of $390,000) was incorporated into a loan application relating to the Glen Iris property.[5] (I here interpolate that on the application relating to the Glen Iris property the name of the accused’s employer is stated to be “Australian Rigging and Lifting Pty Ltd”, that, is the same company name as on the payslips. On the application relating to the Malvern property, her employer is stated to be “Australian Regging (sic) Supply Pty Ltd, that is, the same company name as on the PAYG payment summary.) Each of the loan applications were signed by the accused on 14 February 2012.
[5] Tab1 op.cit.
8 The prosecution case is that the accused knew that her representations about her employment and earnings were false and that she intended the Westpac Bank to act upon them. As a result, on 8 March 2012, the Westpac Bank made offers to advance the loan sums of $960,000 in respect of the Glen Iris property and $1,280,000 in respect of the Malvern property. Each of those offers was accepted in writing by the accused on the date of the offer[6], and the accused received the financial advantage of the $960,000 loan on 16 March 2012 and of the $1,280,000 loan on 8 June 2012.
[6] See Tabs 4 and 10 op.cit.
9 Each of the loan offers contained a clause stating “Your Loan Offer is based on the information provided in your Loan Application (a copy is attached). You must tell Westpac if any of this information is incorrect.” The “Acceptance of loan offer” had a boxed section headed “IMPORTANT”, and had a further heading “BEFORE YOU SIGN”. Below this heading, were a number of dot points as follows:
“• READ THIS CONTRACT DOCUMENT so that you know exactly what contract you are entering into and what you will have to do under the contract.
• You should also read the information statement: “THINGS YOU SHOULD KNOW ABOUT YOUR PROPOSED CREDIT CONTRACT”.
• Fill in or cross out any blank spaces.
• Get a copy of this contract document.
• Do not sign this contract document if there is anything you do not understand.”
10 Immediately underneath this boxed section the accused signed her name, on 8 March 2012, on each of the respective documents.
11 On the next page of the loan application were listed the plaintiff’s personal details: her full name, date of birth, marital status, number of dependants, driver’s licence number, the date when she had first become a Westpac customer, whether she was a first home buyer, her current home address and the date from which she had lived at that address and her home telephone number. Under a heading “Other details” was a mailing address, namely, a post office box in Toorak, and her residential status , which was stated to be “Live with parents”. Under a further heading “Your employment details”, her current occupation was listed as “Manager – Sales/Marketing/Advertising”. It was noted to be full-time employment, she was not self-employed. As previously mentioned, the name and address of her current employer was stated to be Australian Rigging and Lifting P/L, Melbourne 3004 Australia (on the application relating to the Glen Iris Property) but Australian Regging (sic) Supply Pty Ltd Melbourne 3004 (on the application relating to the Malvern property) albeit that the “work phone” on each application is stated to be the same number (“04 38388840”) and the “Time there” is also stated to be the same (“From :01/01/200”)
12 Ms Shafir’s evidence is that, following the advancement of the 2 loans, in August 2012, the accused had approached her and asked if she could organise a construction loan for her. After being told, again, by the accused that her income and employment were the same, Ms Shafir advised that she could not assist her as the accused could not afford another loan.
13 In the 2017 trial in which the jury were unable to reach a verdict, the accused gave sworn evidence. On 9 November 2017 she swore that she first became aware that her loan applications stated that she earned a salary of $390,000 when told by Mr Tom Collie at a meeting on 14 June 2013.[7] Subsequent to the aborted trial, investigating police took a statement from Mr Tom Collie, who had not been a witness in that trial.
[7] Trial transcript p. 506.
14 The prosecution proposes to lead evidence from Mr Tom Collie. In 2013, he was working in the “private banking” section of Westpac, as distinct from one of the local bank branches. In a statement made to police on 11 December 2017, and elaborated upon by sworn evidence in a voir dire on 3 September 2018, Mr Collie stated that the private banking sector of Westpac, from time to time, is given reports showing a list of clients managed by the branch network who have large loan balances. This is an indicator that the client may meet the criteria to be managed by the private bank, which contacts the clients to invite them in for a meeting to discuss their situation and see if there is mutually convenient business by way of new products which can be provided by the private banking section to the client. The private bank uses a different lending system to the branch or retail bank and does not have access to the information used in any applications that do not originate from within the private bank. However, Mr Collie stated under cross-examination that, although he had never actually asked for original loan documents from the mortgage broking section of the retail bank, he felt sure they would be obliged to provide them if he had asked to see them.
15 Mr Collie stated that, on 14 June 2013, he met with the accused. Before he met her he had no information other than her loan account balances. He asked her about her personal situation and, as detailed in his statement to police, he stated as follows:
“My memory of the information provided by Tanya is:
1. She had kids.
2. She was not in a relationship but an ex-partner of hers (who I think was the father but that might be wrong) was still sometimes or/always living in the house.
3. She had come from a reasonably wealthy family and had attended a private school.
4. She was soon to travel overseas, I think Thailand or Bali, maybe Fiji.
5. She owned a property in Finch Street East Malvern that had undergone substantial renovations and was almost complete.
6. She owned land in Glen Iris which had permits for two townhouses.
7. She was working in marketing earning circa $250k per annum – I can’t recall where but it was a company she had known for quite some time.
8. Her goal was to eventually become a property developer full time, and that Finch Street was her first development and Glen Iris would be the second.
9. That her employment status was not straightforward – I think maybe she had left them and then returned, and she had an informal relationship with them so that she could dial her income/hours up or down as required, or something similar (although not normal, income structures in private bank are often not ‘normal’).
10. That she had applied for her current Westpac loans via low doc, and that she or her broker was possibly going to get into trouble or be under investigation for this.”
16 Mr Collie’s evidence explained that “low doc” loans generally mean that a client does not have up-to-date “financials” which they can present to the bank. Instead, they provide a written disclosure of their income level and sometimes this is validated by a letter from an accountant. Private banks are unable to offer low doc loans. He stated that the accused represented that her cash flow was tight because she still had expenses to do with the Malvern property. She wanted to take out a loan that would be sufficient to pay twelve months’ worth of interest before June 30. Her major priority with this strategy was alleviating cash flow so that she could concentrate on finishing the Malvern property and then move onto the townhouses on the Glen Iris property. He stated that, given that the accused presented as a client who was generating “circa 250k” per annum in personal income, was relatively lowly geared and had the prospect of generating future rental income, either from a completed Finch Street development or from two townhouses in Glen Iris, he had enough information to think he could probably provide more funding to her under a “full-doc” basis. Thus, he sent her an application after their initial meeting, but in subsequent follow-up meetings or phone calls, it became increasingly clear that documentation relating to her marketing role would not be available. Eventually, he advised her that the private bank could not give her more money over a normal loan term. He said it became increasingly clear that the accused could not afford her debt repayments and he advised her to find employment or look at selling either of the properties. She ultimately sold the Malvern property, which gave her a disappointing result, but it was sufficient to clear her debt, and she transferred her accounts out of the private bank and he had no further dealings with her.
17 Mr Collie’s evidence is that at no time during his dealings with the accused, from 14 June 2013 until approximately November 2013, did he know that the paperwork provided to Westpac in order for the accused to obtain the loans was fraudulent. The first time he became aware of such documents was after being contacted in December 2017 by Detective Andrew Broad, who asked him to provide a statement about his dealings with the accused. He stated that the documents supplied by the accused in support of the loans are not documents typically associated with a low doc loan and, until Detective Broad told him in December 2017, he was not aware that the accused’s loan approval had been granted on the basis of those documents.
18 It is common ground between the parties that, at the time of the alleged representations made to Ms Shafir, the accused was not employed as a marketing manager earning $390,000 per year. Nor at the time she saw Mr Collie in June 2013 was she employed as a marketing manager earning $250,000 per year. In fact, she had not been employed for in excess of eight years and had been receiving Centrelink single parent payments of some $500 to $600 per week, although, at the time she had seen Ms Shafir back in February 2012, she did have a modest income of $2,390 per month from rental of the Glen Iris property.
19 Ms Shafir’s evidence is that she prepared the loan application ‘live” at the interview with the accused on 14 February 2012 on the basis of the accused’s oral answers and supporting documents. In order to have a loan approved, it is necessary for a client to have an income and either an existing property which will be used as equity or a deposit sufficient to buy the property. Westpac Bank does not provide home loans on the basis of possessing equity in a property alone. This would be the case even if a person had a property worth $5 million. If that person did not have income, the bank would not lend him money.[8]
[8] Transcript of aborted trial 02/11/17 p 213-214
20 Mr Collie’s evidence is that the accused presented to him as a person with an income of approximately $250,000 per annum. If he had known she was on Centrelink payments he would not have sent her a loan application because it would never be approved.
21 There is other evidence which will be called by the prosecution from the previously mentioned Mr Jason Fischman and Mr Lex Carter, each of whom had attended the meeting with Ms Shafir in February 2012. At the 2017 trial, the prosecutor made a successful application to cross-examine each of those witnesses, as an unfavourable witness, pursuant to s. 38 of the Evidence Act 2008. It is unnecessary for me to refer to their evidence in these reasons.
22 The accused has pleaded not guilty to each of the charges. She denies that she obtained any financial advantage by deception or by acting dishonestly. When she was interviewed by police on 24 July 2013, she admitted that she was unemployed and had been receiving Centrelink benefits and was a single parent. She stated that she had been to see a finance broker, Jason Fischman, who told her that he would take care of everything to get the loan through. She was told by him she did not have to have an income because she had an asset by way of equity in the Glen Iris property and this could be utilised to pay for the loan. She denied that she ever told the bank that she had an income of $390,000. She stated that, when she signed the loan applications, her income was not really discussed. She stated that the broker literally answered Ms Shafir’s questions for her, and she just signed whatever was put in front of her. She stated that in her Record of Interview she had “just read it now”,[9] referring to the application she signed in which it is stated that she had an income of $390,000. She stated that she had never before seen the PAYG Summary showing her to have earned $390,000 in the financial year ending 30 June 2011 from Australian Rigging Supply Pty Ltd She had never been aware of the figures in documents provided to the bank as proof of income. She stated: “I think this is coming from, the broker would have done this.”[10] She went on to deny that she had provided that document to the bank as proof of her income and stated: “I can honestly say I’ve never seen it before. And the figures I’ve not been aware of.” She added “Literally what they said to me was they will take care of it all and not to worry about it. And I literally didn’t worry about it.”[11]
[9]Record of interview Q401-403 and Answers
[10]Record of interview Q340 - 341 and Answers
[11]Record of interview Q347 – 350 and Answers
23 In her defence filed, the accused reiterates what she stated in her record of interview, namely, that she was a single mother and her sole source of income was from her parenting payment pension from Centrelink and that she told her broker, Mr Fischman this, as well as the fact that she owned the Glen Iris property outright. She claims that he told her she did not need to have an income to service the loan because the equity in the Glen Iris property could be used for this purpose and he would take care of everything.
24 The accused asserts in her defence that, during the meeting at the Westpac Bank on 14 February 2012, the loans were discussed and she was shown partially completed applications for each of the loans, which she signed, and Mr Fischman told her that he would fill out the blank details in the loan applications and provide the necessary documents to Westpac Bank in support of the application. She specifically denies having ever represented that she earned $390,000 per annum and that she was employed as a sales marketing manager for Australian Rigging and Lifting Pty Ltd, or that she provided Westpac with a copy of the PAYG payment summary, which she said that she had never seen. She also denied supplying copies of any pay slips or false Commonwealth Bank statements to the Westpac Bank. Rather, she claims that she had provided her bank statements to Mr Fischman in their original form, as provided to her by the bank, and has no knowledge as to how the statements were altered and produced in an altered form to the Westpac Bank. The defence points out that Mr Fischman was a director of Australian Rigging and Lifting Pty Ltd in 2012 at the time that the false representations about the accused being employed by that company were made.
Pre-trial issues for determination
25 Prior to empanelling the jury, two pre-trial issues have arisen for determination. They are as follows:
(1) The prosecution asserts that the accused’s sworn evidence at her earlier trial that she had no knowledge of any representation made to Westpac Bank in support of the loan application to the effect that she was working in marketing earning $390,000 or any documents to that effect until she was advised of this by Mr Collie on 14 June 2013 is a lie. Indeed, in her answer to Question 90 in her record of interview she revealed that, although her loan application said that she was receiving a wage, that was to get the loan put through. At no time in her record of interview did she mention that it had only been some six weeks previous to that interview (namely, when she met with Mr Collie on 14 June 2013) that she had become aware of those false details in her loan application. Rather, she specifically stated, as to the document provided to the bank as proof of her income: “I can honestly say I've never seen it before. And the figures I've not been aware of.”[12]
[12]Record of interview Q347 and Answer
In these circumstances, the prosecution submits that the accused’s answer on oath at her trial, that she had no knowledge of the false representation concerning her marketing job and her earnings of $390,000 per year until she saw Tom Collie, is conduct which is incriminating conduct within the meaning of s18 of the Jury Directions Act, which amounts to an implied admission by the accused of having committed the offence charged, or an element of that offence. A notice to this effect, dated 20 July 2018, has been given by the prosecution to the defence pursuant to s19. The defence has taken issue with the proposed use of the evidence by the prosecution.
(2) The second issue for determination involves the admissibility of evidence from Mr Collie in accordance with his statement to police that, when he saw the accused on 14 June 2013, he recalls that she provided him with information that “… She was working in marketing earning circa $250K per annum – I can’t recall where but it was a company she had known for quite some time.”
The prosecution submits that this evidence shows that the accused knew that the loan applications which are the basis of Charges 1 and 2 contained false representations or were supported by false information or documents concerning her employment and income. Further, this evidence is relevant to rebut the accused’s defence that she believed that she obtained the 2012 loans from the Westpac Bank on the basis of the equity that she had in the Glen Iris property and that there was no need for her to have any income, as such.
26 The evidence from Mr Collie is objected to Mr Thomas on behalf of the accused. He submits that the prosecution is really seeking to rely upon the representation to Mr Collie as to her employment and earnings as coincidence evidence. Not only has there been no notice served in accordance with s98 of the Evidence Act, but the prosecution is unable to prove that the accused’s state of mind at the time of entering into the 2012 loan contracts had similarities her state of mind at the time of the alleged representations with to Mr Collie. Mr Thomas relies upon the representations to Mr Collie being well over a year after the alleged representations to the bank. Also, the description of her job and her wage were not the same. Moreover, notwithstanding that Mr Collie had further contact with the accused after 14 June 2013, that did not result in any loan contract, so there is no suggestion that she obtained a financial advantage by deception as a result of the representation to Mr Collie.
The first issue of whether the accused’s evidence on oath that she did not know about the false representations/documents in relation to her loan applications until she first met with Mr Collie is a lie capable of being construed as post-offence incriminating document
27 The test as to whether a lie is capable of being used as incriminating conduct involves a consideration as to whether a jury acting rationally could conclude that the only reasonable inference from the post-offence conduct indulged in by the accused is that contended for by the prosecution, namely, that she was aware of the false information/documents relating to her loan application and hence, acted dishonestly in order to deceive the bank so that it would advance the loan sums to her. It is not for me to determine whether the jury should draw that inference.[13]
[13]DPP v Zhuang (Ruling) [2014] VSC 276
DPP v Lyons & Lyons (Ruling No. 4) [2018] VSC 297, 4 June 2018, applying R v Cengiz [1998] VR 720 at 735
28 To satisfy the test there must be proof of the following matters:
(1) that the lie was deliberate;
(2) that the lie related to a material issue;
(3) that the telling of the lie showed knowledge of the offence and was told because the truth would implicate the accused and that this is the only reasonable explanation for the lie, that is, there is no other reasonable explanation consistent with innocence for the telling of the lie.
29 The test to be considered is not whether, standing alone, the only reasonable inference to be drawn from the alleged conduct is that the accused acted as she did because of a belief that she had committed the offence or an element of the offence charged. Rather, the question must be considered in the context of all the evidence in the case and the background circumstances to it.[14]
[14]DPP v Zhuang ibid at para. 23
30 In this case it seems to me that, if the jury accept Mr Collie’s evidence that he did not have access to the accused’s loan application or supporting documents for it when he saw her on 14 June 2013, the test in accordance with the definitions in s18 of the Evidence Act is satisfied.
31 The accused’s evidence at trial on 9 November 2017 is that Mr Collie looked at her application and then said that the documents showed that she was earning an income of $390,000 and was working for the Australian Rigging Company and that she said that that was not what was discussed.[15] There is no dispute that this was a conscious and voluntary statement by the accused. It is clearly contrary to the evidence of Mr Collie and, indeed, had never been raised by the accused prior to giving evidence at her trial. As previously mentioned, in her record of interview, she stated that, notwithstanding that she had not worked for at least eight years at the time of making the loan applications in February 2012, she nevertheless acknowledged:
“My loan application says I did and that was to get the loan put through.”[16]
[15]T506
[16]Record of interview Q88 – 90 and Answers
32 Later on in the record of interview, she seems very reluctant to reveal the identity of “another financial adviser” with whom she had had discussions a couple of months prior to the record of interview.[17] In my view, the only reasonable inference in the light of all the evidence is that the person to whom the accused is referring as “another financial adviser” in her record of interview is Mr Collie.
The accused’s statement on oath at her earlier trial that she only knew of the falsity of the representations and supporting documentation for the two loans when she spoke to Mr Collie is a lie related to a material fact, namely, that at the time of making the loan applications and signing the acceptances of offer, she was aware that the representations in the loan applications and the documents in support of them were false in so far as they represented her to be a marketing manager earning $390,000 per year. Indeed, paragraph 10 of Mr Collie’s recollections concerning the information provided to him by the accused in his statement to police is that; “She had applied for her current Westpac loans via low doc, and that she or her broker was possibly going to get into trouble or to be under investigation for this.” If this aspect of Mr Collie’s evidence is accepted by the jury, it is additional evidence pointing to her awareness of the false representations.
[17]Q504 – 515 of the record of interview
33 In my view, taking into account the context of the lie and the background circumstances to it, if a jury accepted Mr Collie’s evidence it would be entitled to infer that the telling of the lie showed knowledge of the offence and, in particular, the elements of dishonesty and deception relating to the false representations, and that the lie was told because the truth would implicate the accused. In other words, a jury would be entitled on the available evidence to conclude that there was no reasonable explanation for the lie consistent with the innocence of the accused.
34 I note that Mr Thomas, having examined all available relevant records of Mr Collie, conceded that if the jury did accept Mr Collie’s evidence, then the inference that the accused had told a lie capable of being construed as post-offence incriminating conduct was open to them.
35 In all of the circumstances, I rule that the prosecution are entitled to go to the jury on the basis that the alleged lie told by the accused during her evidence at the previous trial is capable of being used by them as post-offence incriminating conduct. Of course, it will be necessary to give the jury directions about this, including the need to carefully examine whether any other reasonable explanations consistent with innocence might reasonably be available on the evidence which is ultimately put before the jury.
36 When this issue was the subject of submissions before me, I indicated to counsel that, in the event that I should find the lie to be capable of being used as post-offence incriminating conduct, I was concerned that, should the accused choose to exercise her right to silence it in this trial, that right should not be undermined by highlighting the fact that she had chosen to give evidence in her earlier trial. I would urge the parties to consider how this might be achieved, perhaps by indicating to the jury that it is agreed between the parties that, subsequent to her record of interview, the accused made a sworn statement to the effect that she did not know about the representation as to her working and earning $390,000 until she spoke with Mr Collie, without specifically stating that that sworn statement was part of her testimony at her earlier trial.
37 There is a consequential ruling which flows from my ruling on the issue of post-offence incriminating conduct.
38 Prior to the accused’s earlier trial, the trial Judge had ruled as irrelevant a portion of her record of interview comprising questions and answers from 469 to 544. In essence, this portion of the interview related to the accused stating that her ability to repay the loans by using her redraw facility was running out and it would be necessary for her to take out another mortgage loan, which she stated that she was trying to do, although denied that she had actually put in any application. She initially answered a question as to whether she had filled out any application by saying: “I dunno.”[18] Subsequently she said: “I don’t think I have.” and went on to say that she was in the process of doing it and had not signed anything. Later on, she made reference to having had discussions with a financial adviser about two months ago. This is the portion of her record of interview comprising questions and answers from 504 to 515. Subsequent to the answers in that portion of the record of interview, she was asked in Q527: “Have you told them when you had this conversation about your current income?” She answered: “Yes, yes, I have.”
[18]Answer to Q481 of the record of interview
39 At the earlier trial there had been no statement taken from Mr Collie and it is understandable that the then trial Judge ruled out from Q469 to 544 of the record of interview as irrelevant. Given that the prosecution now proposes to call Mr Collie and that his statement to police made on 12 December 2017 has been served on the defence and the defence have had the opportunity to cross-examine Mr Collie on a Basha inquiry and given my ruling on the lie of the accused’s capable of constituting post-offence incriminating conduct, I consider it appropriate to accede to the application by the prosecution to have that portion of the record of interview from Q469 – 544 admitted into evidence.
40 If the jury accepts that the accused’s reference to having had discussions with a financial adviser about two months prior to her record of interview is a reference to her meeting with Mr Collie on 14 June 2013, then, clearly, her answer to Q527 that she has told the financial adviser about her current income and what she describes as “a drastic change” in her income situation is relevant evidence. Her answers to the effect that she has no income and is unable to pay the mortgage[19] are unable to be reconciled with the evidence from Mr Collie, in paragraph 7 of his statement to police that his memory is that on 14 June 2013, particularly paragraph 7 of his statement to police that: “She was working in marketing earning circa $250k per annum – I can’t recall where but it was a company she had known for quite some time.”
[19] Q501–535 and answers.
41 I here note that this portion of evidence of Mr Collie is the subject of objection in relation to the second pre-trial issue which I have been asked to determine. Thus, I will deal with this portion of Mr Collie’s evidence when determining that issue.
The issue of admissibility of Mr Collie’s evidence that the accused told him on 14 June 2013 that she was working in marketing earning $250,000 per annum for a company she had known for quite some time
42 The prosecution has not served a notice pursuant to s99 of the Evidence Act seeking to rely upon this evidence as coincidence evidence pursuant to s98 of the Act. The prosecutor, Mr Hardjadibrata, has made it clear that the prosecution does not seek to rely upon this evidence as coincidence evidence. Rather, it seeks to rely upon it to rebut the defence case that she knew nothing of the earlier false representations about her employment and income because she believed that she obtained the loans which are the subject of Charges 1 and 2 on the basis of her equity in the Glen Iris property and it was not necessary for her to demonstrate that she was earning income.
43 Mr Thomas on behalf of the accused submits that, regardless of the said alleged purposes articulated by the prosecution, this portion of Mr Collie’s evidence is really sought to be used as coincidence evidence. That this is so is apparent from Mr Hardjadibrata’s submission that:
“What the accused said to Mr Tom Collie about her employment and income identified her with the crime charged because it’s the very essence of the false representations in the original loan applications in respect of the same properties, and that is she was in marketing and earning a substantial income to be able to afford the two loans.”[20]
[20]Transcript of pre-trial submissions 136
44 Mr Thomas submits that, despite the prosecution’s disavowal of any intention to use this portion of Mr Collie’s evidence as coincidence evidence, the danger of coincidence reasoning by the jury is further enhanced by other evidence which the prosecution seek to lead from Mr Collie. In particular, in an email dated 5 September 2018 the prosecution stated that it would lead evidence of representations regarding her employment made by the accused to Mr Collie and also that:
“There were further telephone conversations and meetings with Tanya Swan following that first meeting on 14 June 2013, but no loan applications were made by her to the private banking section.”
45 Mr Thomas submits that the representation to Mr Collie could not satisfy the threshold for admissibility of coincidence evidence having regard to similarities in events or circumstances, nor could the evidence be regarded as having significant probative value. Further, pursuant to s101 of the Evidence Act, even if the threshold bases for admission of coincidence evidence were met, it could not be said that the probative value of this evidence substantially outweighs any prejudicial effect it may have on the accused.
46 Mr Thomas points to the representations being materially different, namely the ones with respect to the loans the subject of the offences being that the accused was a “Sales/Marketing manager” compared to the representation to Mr Collie that she was “in marketing”; the company which was the subject of the representations relating to the two loans was Australian Rigging, whereas Mr Collie’s evidence was that he could not recall where she was working but “it was a company she had known for quite some time”; and the amounts which the accused represented as her income were different ($390,000 compared to about $250,000). Moreover, Mr Thomas points to these factors, as well as other matters, which demonstrate that the evidence could not satisfy the test of significant probative value. The additional matters are: that there is evidence that the accused had previously been employed in marketing, so a representation that she was working in marketing does not necessarily arise from knowledge of the content of the earlier loan applications; the representations to Mr Shafir and those to Mr Collie are separated by over a year and, if anything, the difference in representations as to the quantum of income suggests that the accused was not aware of the representations made as to income in February 2012; and this latter factor is supported by the accused being unable to provide documentation to Mr Collie in support of her earnings (which suggests that she was not the originator of documentation or did not have access to it).
47 Mr Thomas submitted that the representations to Mr Collie as to employment and income could only contradict the belief that it was possible to obtain a loan on the basis of her equity alone if the representation was in the context of seeking or supporting a loan through Mr Collie. In addition, to rely on statements made to Mr Collie well over a year after the false representations relied upon in support of Charges 1 and 2 involves retrospective reasoning about the accused’s state of mind back in 2012 which deprives it of probative value.
48 Mr Thomas submits that the s101 test of the probative value of the evidence substantially outweighing any prejudicial effect it may have on the accused cannot be satisfied. Further, even if the evidence were admissible for other than tendency or coincidence reasoning, there is an unacceptable risk of unfair prejudice to the accused that the jury would engage in propensity reasoning, particularly in relation to the evidence that the accused made false representations to Mr Collie with a view to obtaining a financial advantage by way of a loan albeit that it never came to fruition.
49 Having considered the arguments of each counsel, I conclude that the evidence of Tom Collie has probative value to rebut the accused’s defence that she did not make false representations about her employment and income in support of her 2012 loan applications because she thought she could obtain such loans based on equity alone. It will be a matter for the jury as to what weight it ultimately gives to that evidence. However, if I am wrong about that, it seems to me that this evidence of Mr Collie is inextricably entwined with his evidence that is relied upon by the prosecution as post offence incriminating conduct which I have ruled admissible.
50 The prosecution could not call Mr Collie to simply give evidence in isolation that he did not know about the false details in support of the accused’s 2012 loan applications when he met Tanya Swan on 14 June 2013. It would be necessary for the jury to have some context for that meeting, otherwise his evidence would make no sense to it. However, I consider that the jury would need to be directed against reasoning backwards from what the accused said in June 2013 to Tom Collie. They would have to be told that they cannot reason that because the accused told Tom Collie she was employed and earning $250,000 in June 2013, therefore, she must have told Ms Shafir that she was employed and earning $390,000 back in February 2012.
51 In an email to the Court dated 5 September 2018,[21] the prosecution clarified that it would not be calling evidence to the effect of suggesting that the accused made any loan application via Mr Collie. As a matter of fairness, this is important because it should not be suggested to the jury that the accused is guilty of committing another offence of some sort in her dealings with Mr Collie. There is no charge before the jury relating to any such conduct. Thus, I would propose to give an anti-propensity warning to the jury to emphasise that the prosecution is not leading the evidence from Mr Collie for the purpose of trying to show that the accused was the type of person who would give false information in support of a loan application and emphasise that there is no evidence that she did ever make any loan application to Mr Collie. I would warn the jury that, if it accepts that the accused gave Mr Collie false information about her job and income, it must not reason that she, therefore, must have made false representations to Ms Shafir back on 14 February 2012. In my view, such directions will avoid any impermissible use of Mr Collie’s evidence which has been the subject of expressed concerns by the accused’s counsel, Mr Thomas.
[21]This email has been marked for identification.