Douglas Gordon Johnston v The Queen
[2021] VSCA 11
•10 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0166
| DOUGLAS GORDON JOHNSTON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, BEACH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 January 2021 |
| DATE OF JUDGMENT: | 10 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 11 |
| JUDGMENT APPEALED FROM: | [2019] VCC 825 (Judge Wilmoth) |
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CRIMINAL LAW – Appeal – Conviction – Obtaining financial advantage by deception (9 charges) – Three sets of complainants – Judge ruled husband and wife complainants not available to give evidence – Whether ‘mentally or physically unable’ to give evidence – Documentary evidence wholly inadequate to establish incapacity – Need for expert evidence or assessment of witness by judge – Miscarriage of justice – Error confined to relevant charges – Appeal allowed in part – Relevant convictions quashed – Retrial ordered – Evidence Act 2008 s 65.
CRIMINAL LAW – Appeal – Conviction – Obtaining financial advantage by deception – Distinction between false representation and unfulfilled promise – Whether directions adequate – Directions given as written questions – No exception taken – No error – Jury comprehension – Benefits of question format – Jury Directions Act2015 ss 1, 11, 12, 15, 16 and 67.
CRIMINAL LAW – Appeal – Evidence – Incriminating conduct – Correspondence between applicant and solicitors for complainant – Applicant’s denial of involvement – Whether capable of constituting evidence of incriminating conduct – Whether communications made ‘in an attempt to negotiate settlement’ – No error – Jury Directions Act2015 s 20, Evidence Act 2008 s 131.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G Connelly | Amad Lawyers |
| For the Respondent | Mr J Gullaci | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
MAXWELL P
BEACH JA
NIALL JA:
Summary
After a trial in the County Court, the applicant was convicted of nine charges of obtaining financial advantage by deception. He was sentenced to 6 years’ imprisonment, with a non-parole period of 3 years.
The applicant’s co-offender was his wife, Maureen Johnston, who pleaded guilty to some of the same charges and to a number of other similar charges. She was sentenced to 5 and a half years’ imprisonment, with a non-parole period of 2 years.
The Crown case against the applicant was that he had deceived three separate sets of victims: Ms Westlake (charges 1-4), Mr and Mrs Stephens (charges 5, 8 and 9) and Mr Busuttil and Ms Boulton (charges 6 and 7). In each case, the victims had been persuaded to invest funds, through the applicant and his wife, in property developments which were said to be in planning or already under way. The amounts defrauded totalled $45,000, $720,000 and $50,000 respectively.
The applicant now seeks leave to appeal against his conviction. His principal ground concerns the ruling of the trial judge that both Mr and Mrs Stephens were ‘not available to give evidence’, within the meaning of s 65(1) of the Evidence Act2008 (‘Evidence Act’), and that the prosecution could instead adduce evidence of written statements they had made and evidence they had respectively given at the committal, under s 65(3) of that Act.
For reasons which follow, that ground of appeal must be upheld. The medical evidence relied on by the prosecution was wholly inadequate to establish ― as the Evidence Act required ― that either Mr or Mrs Stephens was ‘mentally or physically unable’ to give evidence at the trial.[1] Although Mr Stephens was said to have ‘mild cognitive impairment’, there was no expert evidence before the court as to how — if at all — that impairment would affect his ability to understand and respond to questions. Further, in circumstances where the evidence was entirely documentary and Mr Stephens did not give evidence on a voir dire, the judge was in no position to make her own assessment based on observation as to the capacity of the witness. In relation to Mrs Stephens, there was simply no evidence of a relevant incapacity.
[1]Evidence Act, Dictionary pt 2 cl 4(1)(c).
Success on that ground means that the convictions in relation to the Stephens offending must be set aside. We are not, however, persuaded that the error in relation to the evidence of Mr and Mrs Stephens affects the verdicts in relation to the other complainants. Nor would we uphold any of the remaining grounds, which respectively concern what is said to be a deficiency in the judge’s directions and the erroneous admission of certain documentary evidence.
Accordingly, the appeal will be allowed in part, and the convictions on charges 5, 8 and 9 set aside. Although the applicant is in failing health, we are not persuaded that it is appropriate to direct a verdict of acquittal on those charges. We will direct that there be a retrial. Whether it takes place will be a matter for the Director of Public Prosecutions.
Ground 1: inability to give evidence
The Crown case on charges 5, 8 and 9 turned on representations allegedly made by the applicant to Mr and Mrs Stephens. As already mentioned, they had both given evidence at the committal, which took place in December 2015.
In a pre-trial application in April 2019, the prosecution sought a ruling that both Mr and Mrs Stephens were unavailable to give evidence and that their written statements and committal evidence could be used instead. As already noted, the prosecution called no expert evidence in support of the application, relying instead on various medical and other reports, which were tendered without objection. The defence submission was that the material in the reports was simply insufficient to show that either Mr or Mrs Stephens was ‘mentally or physically unable’ to give evidence.
The judge granted the prosecution application. The relevant part of her Honour’s reasons was in these terms:
Mr Philip Stephens is aged 74. He suffered a stroke in 2017. He lives at home, and is cared for by his wife, who also has significant health issues.
Mr Stephens has been left with a mild cognitive impairment, with his short term memory affected. It was part of the prosecution submission that such cognitive impairment might affect a person’s ability to maintain their train of thought or the thread of conversations.
As an aftermath of the stroke Mr Stephens also suffers hypertension, depression, diabetes Type 2, and neuropathic pain. He uses a walking frame and has had several falls, although not for some time. He needs a carer for basic domestic duties, taking medicine and personal care, and this is provided by his wife and from external sources on a regular basis.
Ms Judith Stephens is aged 71, and according to her treating doctor she suffers significant medical issues causing chronic pain, depression and elevated blood pressure. Her medical records show that she suffers from osteoarthritis, neuropathic pain, diabetes Type 2, post-herpetic neuralgia due to shingles, angina which is sometimes severe, ischaemic heart disease, peripheral vascular disease and related conditions. The prosecution submission was that while there is no cognitive impairment, her impairment otherwise is significant. It was part of the prosecution submission that such a finding can be made even in the absence of a specific diagnosis demonstrating impairment.
In December 2018 I sentenced Maureen Johnston, the wife of the accused.
Ms Stephens provided a victim impact statement for the plea hearing in which she stated that she feels ill whenever the subject of the transfer of their funds to the Johnstons is raised.
…
I am satisfied that taking into account the totality of the afflictions from which the witnesses suffer, it does amount to mental or physical inability to give evidence, and it is not reasonably practicable to overcome that inability. For example, one suggestion was that the witnesses’ evidence might be pre-recorded before a jury is empanelled, to make the experience less stressful. I take the view that any such reduction of stress might be minimal, and would not justify the imposition on two elderly and somewhat frail witnesses.
I am satisfied that because of the availability of an audio recording of the witness’ evidence at the committal, the proposed trial conducted without the cross-examination of the witnesses before the jury would not be unfair. As the Court said in Bray, ‘… a defendant is entitled to a fair trial but not a perfect one’.[2]
[2]R v Johnston [Ruling No 1] (County Court of Victoria, Judge Wilmoth, 26 April 2019) [3]–[6], [12]–[13] (citations omitted).
As her Honour noted, Mr Stephens suffered a stroke in 2017. The medical reports on which the prosecution relied covered the period October 2017 — April 2019 and were all concerned with his rehabilitation and recovery from the stroke. Of the nine reports tendered, however, only one contained any extended description of the impact of the stroke on his cognition and speech. It was a report of 5 December 2017 — almost 18 months before the judge was asked to rule on the issue — which described Mr Stephens’s progress during a course of treatment provided by the Community Rehabilitation Program of Eastern Health.
After referring to improvements in his condition resulting from occupational therapy and physiotherapy respectively, the report contained the following under the heading ‘Speech Pathology’:
On initial assessment Phillip presented with the following communication deficits:
·Moderate cognitive-communication deficits characterised primarily by difficulty understanding complex information and interpreting complex social interactions secondary to cognitive deficits and impaired pragmatic skills.
·Mild motor speech deficits characterised by some word-initial blocks observed, reduced speed /coordination of speech subsystems, slow rate of speech, impaired laryngeal function (would benefit for ENT review for same). 100% intelligible in conversation.
·Cognition impacting on impulsivity, problem solving, reasoning and insight.
…
On discharge, Phillip progressed to a mild-moderate cognitive-communication deficit and ongoing mild motor speech deficit. His insight has improved markedly, he is a keen participant in therapy, and very motivated to improve both his social interactions and speech.
…
Risk identification: Difficulty understanding complex information and interpreting complex social interactions secondary to cognitive deficits (see below) and impaired pragmatic skills. Phillip will likely require assistance when receiving complex information, undertaking complex communication tasks, and in certain social situations.
Cognition — as per his inpatient neuropsychology report: slowed information processing, impaired working memory, impulsive, poor attention/concentration, dyspraxia. Appears mildly improved since admission from SP informal observations.
As can be seen, Mr Stephens was described as having ‘progressed to a mild–moderate cognitive-communication deficit and ongoing mild motor speech deficit’. Subsequent reports did not take the matter any further. They contained only brief references to:
·
‘impaired cognition, mild cognitive-communication changes’
(19 February 2018);
·‘cognitive impairment’ (1 March 2018); and
·‘ongoing mild memory and cognitive issues’ (4 February 2019).
In May 2018, an assessment for home care assistance recorded that
Mr Stephens:
scores 20 out of 30 in Mini-Mental State Examination with three out of three in memory recall.
There was no evidence as to the basis or significance of that assessment, nor of the qualifications of the assessor to make it.
We note finally that, by June 2018, the Community Rehabilitation Program was reporting that Mr Stephens had ‘made steady gains with all of his goals [in respect of his speech] and aims to continue his reading practice independently’. No further speech pathology was recommended.
With great respect to her Honour, this documentary material fell well short of establishing that Mr Stephens was ‘mentally or physically unable’ to give evidence. Plainly enough, the stroke had had some adverse impact on his cognition but no conclusion could safely be reached about his capacity to give evidence without up-to-date expert evidence from a neuro-psychologist or equivalent specialist or, at the very least, without the judge having had the opportunity — on a voir dire — to make her own assessment of Mr Stephens’s ability to understand questions, formulate answers and recall events from the past.
By itself, a diagnostic label like ‘mild cognitive impairment’ is of no assistance for this purpose.[3] Whether, as the prosecutor submitted to her Honour, such a condition ‘might affect a person’s ability to maintain their train of thought’ was a matter for evidence concerning the particular individual, not for speculation about possibilities. The defence submission that the material was insufficient to satisfy the statutory requirement should have been upheld.
[3]Cf R v Verdins (2007) 16 VR 269; [2007] VSCA 102 [8]–[13] (Maxwell P, Buchanan and Vincent JJA).
Further, without evidence assessing the cognitive deficit, which was not quantified beyond the uninformative description ‘mild–moderate’, and linking it to the ability to understand and respond to questions, the judge was in no positon to assess whether it was reasonably practicable to overcome that inability in some way. Such an inquiry is necessary having regard to the circumstances in which the Evidence Act treats people as unavailable for a mental or physical reason.[4] In this regard, courts have become increasingly adept at accommodating witnesses with some physical or cognitive impairment.
[4]Evidence Act, Dictionary pt 2 cl 4.
The position in relation to Mrs Stephens was even clearer. As her Honour noted, the prosecution conceded that she suffered from no cognitive impairment at all. The medical evidence, such as it was, concerned her experience of coronary chest pain and osteoarthritis in her knee, neither of which rendered her physically unable to give evidence. As defence counsel pointed out in opposing the prosecution application, there was no evidence that coming to court would adversely affect Mrs Stephens’s health.
On the psychological side, it was entirely understandable that Mrs Stephens found it distressing to recall the events which had led to such grievous financial loss. But, with great respect, her apprehension about giving evidence could not have been regarded as amounting to an inability to give evidence. As counsel for the respondent pointed out, the position of Mrs Stephens was wholly different from that of the witness the subject of the ruling by J Forrest J in R v McDermott [Ruling No 5].[5]
[5][2015] VSC 652. See also R v Nona [2015] ACTSC 175, [170] (Refshauge J).
Counsel for the applicant submitted that the erroneous admission of the committal evidence of Mr and Mrs Stephens had also prejudiced the applicant’s trial on the other charges. She argued that the evidence was relied on ― and would have been used ― as ‘circumstantial evidence relevant to motive’ in connection with the other alleged deceptions.
We reject this submission. As counsel conceded, there was no tendency notice and the evidence of the Stephens was not cross-admissible in proof of the other charges. Moreover, the judge gave a ‘separate consideration’ direction, which counsel in this Court accepted was ‘impeccable’. The prosecutor had likewise emphasised in final address that the evidence of one complainant was ‘irrelevant’ to the case brought in respect of another. The effect of the error is therefore confined to the convictions on charges 5, 8 and 9.
Ground 2: falsity of statements about the future
Each of the charges alleged that the applicant had obtained financial advantage by making a false representation as to the future use of the funds which he was asking the victim(s) to invest. According to the particulars of the charges, the applicant variously represented that the sum to be invested:
·‘would be used for investment purposes’;
·‘would be used to invest in the construction of a block of units’;
·‘would be pooled with funds provided by other investors in a property investment scheme’; and
·‘would be used to purchase units in a unit trust’.
This ground contends that there was a substantial miscarriage of justice
by reason of a risk that the jury convicted the applicant on the basis of future promises which turned out to be wrong.
In substance, the contention is that the jury were not sufficiently directed as to the distinction between:
·a statement of the applicant’s intent, shown to have been false at the time it was made; and
·a broken promise, being a statement reflecting what the applicant genuinely intended to do (or believed would occur) but which in the event did not occur.
According to the written case, the jury needed to be specifically directed that the deception charge would not be made out ‘if the representation was true at the time but later became false’. In particular, it was said, the jury needed to be directed that:
the need to focus on the particularised misrepresentations and the applicant’s state of mind at the time they were uttered was because the law says that false representations must be about existing or past facts. The representation cannot be about something that is going to happen in the future. [The element of deception] cannot be satisfied by a promise that is not kept. A broken promise is not a false representation about an existing or past fact.
In our view, this ground must be rejected, for three distinct reasons. First, the prosecutor in his final address repeatedly, and clearly, drew the necessary distinction. Secondly, the judge’s written and oral directions clearly identified the need for the jury to be satisfied that each representation was false at the time it was made. Thirdly, and decisively, it was no part of the defence case at trial that, if the applicant made any of the representations, they were to be characterised as (honest) promises about future conduct and not as (false) statements of existing intention.
As to the first point, the prosecutor explained to the jury, early in his final address, that the case ‘is not about breaches of promises’. Going carefully through the elements of the offences alleged in relation to each of the victims, he repeatedly highlighted that what had to be proved was that the applicant had no ‘intention to do the investment from the start’. In relation to the deception of the Stephens, for example, the prosecutor submitted:
It’s important that you understand that the false representation has to be proven to be … what was said at the time of the investment. That’s what has to be false.
After referring to the applicant’s various statements and actions, he submitted:
So you can infer that all of those things he’s said in order to get the $650,000 were false, and he knew they were false …
As to the second point, the judge’s directions were helpfully set out in a checklist which her Honour had provided to counsel in advance. The relevant part of the checklist was in these terms:
Deception
2. Did the accused obtain the financial advantage by deception?
2.1 Did the accused make a false representation?
Consider — Did the accused make the representation alleged by the prosecution. Was that representation false when it was made?
If Yes, then go to 2.2
If No, then the accused is not guilty
of obtaining a financial advantage by deception2.2At the time of making the representation, did the accused know that the representation was false, or that it was probably false?
If Yes, then go to 2.3
If No, then the accused is not guilty
of obtaining a financial advantage by deception[6]
[6]Emphasis added.
As can be seen from the highlighted sentence, the judge made perfectly clear that the jury had to be satisfied that the relevant representations were false at the time they were made. Unsurprisingly, defence counsel raised no objection to the checklist going to the jury in this form.
In our respectful view, the course thus adopted by her Honour was exemplary. The setting out of the issues in this form ― in a logical sequence of straightforward questions ― greatly enhances juror comprehension, consistently with the objectives of the Jury Directions Act 2015 (‘JDA’).[7] Giving counsel the opportunity to see the document in draft and make submissions on its content both minimises the risk of error and reinforces the responsibility of counsel to ensure that the necessary directions are given.
[7]Jury Directions Act 2015 s 1 (‘JDA’). Section 67 of the JDA authorises the trial judge to give integrated directions (more commonly known as a ‘question trail’).
Thirdly, and crucially, there was simply no issue in this trial about how the representations were to be characterised. The defence case was very simple: the applicant had not taken part in any deceptive conduct. As trial counsel said to the jury at the beginning of her final address:
[I]t’s not in dispute that the five complainants lost a significant amount of money and this has had a terrible impact on them. But the defence position has not changed. It wasn’t [the applicant] who deceived them.
The limit of the applicant’s involvement, so counsel submitted, was ‘doing the accounting work and setting up the self-managed super funds’. Counsel’s concluding submission was that:
The prosecution have not proven [the applicant’s] involvement or knowledge of these deceptions. If anything else, it’s clear that Maureen was keeping secrets from him.
As can be seen from the reference to ‘these deceptions’, the applicant implicitly accepted that the complainants had been deceived. It was therefore no part of his case to suggest that, if the jury found that he had been involved, his representations should be viewed as genuine promises about what he intended to do. In any case, as a matter of forensic reality, the ‘no involvement’ defence simply left no room for an alternative defence of ‘involved but honest’.
As ss 11 and 12 of the JDA make clear, it is for trial counsel to identify for the trial judge what matters are in issue and what directions the defence want the judge to give (or not to give). As already noted, the defence proceeded on the basis that the complainants had been deceived. The contention was that responsibility for the deceptions fell solely at the feet of Maureen Johnston. Unsurprisingly, therefore, defence counsel did not suggest to the judge that there was any issue about how the representations should be characterised, and — accordingly — she sought no elaboration of the written direction (in the checklist) that the representations had to be shown to have been false at the time they were made.
Where — as here — a ground of appeal in substance complains about a failure to give necessary directions, the ground (and the supporting argument) should be drawn accordingly. Specifically, when the direction which it is said the judge should have given is not one which trial counsel requested, the argument in support of the ground of appeal must confront the very high hurdle established by ss 15 and 16 of the JDA. That is, it will need to be shown that there were ‘substantial and compelling’ reasons for the judge to give the direction, notwithstanding that it was not requested by trial counsel.[8]
[8]Ibid s 16(1). See also Dunn v The Queen [2017] VSCA 371, [82] (Maxwell P, Beach and McLeish JJA).
Ground 3: evidence of incriminating conduct
This ground concerns two letters which the judge gave the prosecution leave to rely on as evidence of incriminating conduct under s 20 of the JDA. The letters concerned the allegation by the first complainant, Ms Westlake, that she had been defrauded by the applicant and Maureen Johnston.
The first letter, from solicitors acting for Ms Westlake, asserted that she had advanced the sum of $160,000 to be invested by the Johnstons on her behalf. The letter was headed ‘Without Prejudice Save as to Costs’. The relevant part of the letter stated as follows:
We have advised our client of a number of options available to her, noting we are aware of the ‘background’ of both Mr Johnston and his daughter, Fiona Johnston.
We are instructed before our client considers the legal options available to her, including suing both you and the Company, our client will accept in full and final settlement solely her investment in the sum $160,000.00 and waive any entitlement to interest. In the event this sum is not received by our office by close of business on Thursday, 11 July 2013, our client will take all legal steps to recover her funds, inter alia.
In the circumstances you may wish to seek legal advice and request your lawyers to contact the undersigned.
In his reply, the applicant stated as follows:
I am writing on my own behalf and not my wife.
First I note the thinly veiled threat you make about me and remind you of the penalties for blackmail. The allegations are also defamatory.
Before you go flying off the handle and make unfounded allegations against me I suggest you carry out an ASIC search which will show I am a shareholder only of Small Business Management Pty Ltd and that is it. I am neither a director nor the company secretary and therefore have no say in the running of the Company what so ever. The extent of my involvement is that of bookkeeper. While on that topic, I am not a signatory to any of the company accounts, nor bank accounts.
I was not present during any discussions which may have been taken with your client and my wife.
I therefore request, by return your confirmation you will not be pursuing any allegations or proceedings against me.
I reserve all rights as against you for the contents of paragraph three of the aforementioned correspondence from you.
The ground of appeal advances three separate arguments in support of the proposition that the admission of this correspondence into evidence resulted in a substantial miscarriage of justice. The first is that the letters were prepared ‘in connection with an attempt to negotiate a settlement of a dispute’, within the meaning of s 131(1)(a) of the Evidence Act, and hence were not admissible.
This point may be dealt with shortly. Neither of the letters was a communication of the requisite character. The letter from Ms Westlake’s solicitors was, quite simply, a letter of demand. It asserted the responsibility of both the applicant and Maureen Johnston for the moneys advanced by Ms Westlake, and demanded repayment of the full amount invested. The offer to waive the interest payable does not alter the essential character of the communication.
Nor was the applicant’s reply in any sense a letter of negotiation. On the contrary, it conveyed an emphatic denial of any responsibility for Ms Westlake’s losses, and an assertion that the allegations were without foundation. As can be seen, nothing said in either of the letters is of the kind which s 131 was enacted to protect, namely, a concession or admission which — if admissible in subsequent proceedings — might undermine or detract from a position advanced in those proceedings. As we have said, Ms Westlake was asserting her unqualified entitlement to repayment while the applicant was flatly denying any responsibility.
We should also note for the sake of completeness that no issue was raised by the applicant at trial that the letters or any part of them were not admissible because of s 131 of the Evidence Act.
The second argument was that the letter from Ms Westlake’s solicitors contained ‘irrelevant and highly prejudicial evidence’. This was a reference to the statement by Ms Westlake’s solicitors that they were ‘aware of the “background” of both Mr Johnston and his daughter’. Once again, in our view, there is nothing in this point. Although the relevant statement could — and should — have been redacted from the document before it was tendered, it was of no consequence in the circumstances of this trial. The reference to ‘background’ was entirely opaque. Unsurprisingly, the statement in the letter was not referred to by either counsel during the trial.
Thirdly, and finally, it was contended that the reply from the applicant was not reasonably capable of being viewed by the jury as evidence of incriminating conduct. The judge had therefore fallen into error in giving leave to rely on it. According to the submission, the applicant’s statement that he was not present ‘during any discussions which may have been taken with your client and my wife’ was not to be taken as a denial of any contact with Ms Westlake. Rather, it was said, the statement should be seen as consistent with the defence put at trial — that the applicant was present with Ms Westlake at the meeting concerning the establishment of her self-managed superannuation fund but not when later representations were made leading to specific transfers of money.
We are not persuaded by that submission. When the relevant statement is read in the context of the letter as a whole, the distinction sought to be drawn is unsustainable. It is quite plain that the applicant was denying involvement in any discussions with Ms Westlake in the period leading up to her investment. That reading of his statement is reinforced by his assertions that he had ‘no say in the running of the company whatsoever’ and that his involvement was limited to ‘that of bookkeeper’.
In any event, the question for the judge — and for this Court — is not whether the letter did contain a knowingly false statement about the applicant’s involvement. The question under s 20 was whether it was reasonably capable of being so viewed. It plainly was. Whether the letter should be given the innocent interpretation advanced on the appeal was a question for the jury. This ground accordingly fails.
Ground 4: admission of ASIC notices
The frauds allegedly committed by the applicant and Maureen Johnston were investigated by the Australian Securities and Investments Commission (‘ASIC’). In the course of that investigation, ASIC issued a notice to each of them requiring the production of books and records recording dealings between them (and their incorporated entities) and a large number of individuals and entities.
For reasons which are not entirely clear, the prosecution tendered both notices in the course of evidence-in-chief from the relevant investigator. The complaint advanced under this ground is that the notices were ‘highly prejudicial’, in that they referred to possible offences other than those on the indictment and to individuals other than the complainants. According to the written case:
The manner in which the lists were grouped conveys the obvious suggestion of a group of persons and entities associated with the applicant and a group of persons and entities with whom the applicant dealt, inferentially as victims/complainants.
This ground is without substance, in our view. These notices are, on their face, both formal and highly technical. It is not reasonably to be supposed that — in the absence of any request from counsel or the judge to do so — any member of the jury would have spent time perusing the detail of either notice, let alone speculating about who the various individuals and entities mentioned might be. No doubt the applicant’s trial counsel, imbued with the atmosphere of the trial, took the same view, as both notices were tendered without objection at trial.
At the same time, we think it undesirable that documentation of this formal kind should go into evidence, unless there is some significant forensic purpose to be served. By themselves, of course, the notices had no probative value at all. What mattered for the purposes of the applicant’s trial was the probative value of the documents produced in response to the notices.
Conclusion
The appeal will therefore be allowed in part and the convictions on charges 5, 8 and 9 set aside. Counsel for the applicant submitted that, in light of the recent appointment of a guardian to manage the applicant’s affairs, verdicts of acquittal should be entered on those charges. While there is force in that submission, we have concluded that this is a matter best left to the prosecuting authorities. We will therefore direct that there be a retrial on those charges.
The convictions on the other charges are unaffected, and it will be necessary for this Court to resentence the applicant. This will appropriately be done on the basis of written submissions.
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