Freer v The King - [2023] SASCA 69

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
FREER v THE KING
[2023] SASCA 69
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
15 June 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
Appeal against conviction.
On 14 September 2022, a jury unanimously found the appellant guilty of aggravated theft, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The jury reached the verdict within four hours.
The circumstance of aggravation particularised on the Information was that the appellant committed the offence while holding a position of trust. The appellant was a legal practitioner. He was also the complainant’s cousin.
The appellant was the complainant’s lawyer in divorce proceedings. The complainant also instructed the appellant in ancillary property settlement proceedings.
In June and July 2014, the complainant received proceeds of a bequest in the form of three cheques, in the amounts of $30,000, $37,500 and $7,400.
The complainant had deposited the cheque for $7,400 in her mortgage account, from which her husband withdrew $5,000. She had not told her husband about the bequest, as she wanted to use the money to pay down her new mortgage. The complainant subsequently discussed the inheritance and her husband’s conduct with the appellant. The prosecution alleged that appellant suggested that she should deposit the remaining cheques into his firm’s trust account, so that the funds would be available when she needed them to pay into the mortgage account. She agreed to that suggestion.
On 7 August 2014, the appellant and the complainant met. On the appellant’s instructions, she signed the back of the cheques and wrote her name. The copies of the cheques also bore the handwritten words, next to the complainant’s signature, ‘Please Pay Mobile Migration Services’. The complainant gave evidence that she did not write those words, nor did she see them being written. She said those words were not there when she gave the appellant the signed cheque.
On the prosecution case, the complainant gave the appellant the remaining two cheques on the understanding that he would deposit them in his employer’s trust account. However, the appellant deposited the money into a bank account in his own name, trading as ‘Mobile Migration Services Adelaide’, which he had opened on the same day. Then, over a period of about six weeks, he transferred the money out of that account or used it to pay for various items.
The issues raised by the Amended Appeal Grounds, broadly described, are:
•whether the trial judge erred in directing the jury that ‘it is only if you unanimously reach a verdict of not guilty on aggravated theft, that you will be asked to deliver a verdict on theft’;
•whether the judge erred directing the jury on matters of fact in respect of which there was little or no evidence;

• whether the judge intervened impermissibly during cross-examination of the complainant;
•whether the judge failed to direct the jury adequately as to handwriting evidence and failed to comply with s 30 of the Evidence Act 1929 (SA).

Held (by the Court), granting leave to appeal on Grounds 3 and 4 but dismissing the appeal:
1.Had the jury’s deliberations extended beyond four hours, it would have been necessary at some point to provide a further direction as to the capacity for a majority verdict, pursuant to s 57 of the Juries Act 1927 (SA). However, that was not required in this case.
2.The directions complained of with respect to the aggravating feature did not operate to remedy any deficiencies in the prosecution case. They were not productive of any miscarriage of justice.

3. The interventions by the judge in cross-examination did not cause a miscarriage of justice.
4.There was no necessity for a warning about dangers or the need for caution in making a comparison with respect to the handwriting evidence.

Criminal Law Consolidation Act 1935 (SA) s 134(1); Evidence Act 1929 (SA) ss 30; Juries Act 1927 (SA) s 57, referred to.
Galea v Galea (1990) 19 NSWLR 263; Ratten v The Queen (1974) 131 CLR 510; R v Esposito (1998) 45 NSWLR 442; R v Baftiroski [2018] SASCFC 83; R v L, GA [2015] SASCFC 166; R v MacBeth [2008] SASC 71; R v Mawson [1967] VR 205; R v Richards (2016) 125 SASR 341; R v Tropeano (2015) 122 SASR 298; Sumner v Booth [1974] 2 NSWLR 174, considered.

FREER v THE KING
[2023] SASCA 69
Court of Appeal – Criminal: Lovell, Bleby & David JJA

THE COURT: This is an appeal against conviction of one count of aggravated theft, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The circumstance of aggravation particularised on the Information was that the appellant committed the offence while holding a position of trust. The appellant was a legal practitioner. He was also the complainant’s cousin. On the prosecution case, the complainant gave the appellant two cheques totalling $67,500, on the understanding that he would deposit them in his employer’s trust account. However, the appellant deposited the money into a different account. Then, over a period of about six weeks, he transferred the money out of that account or used it to pay for various items.
On 14 September 2022, a jury unanimously found the appellant guilty of aggravated theft. Relevantly for the purposes of the appeal, the jury reached that verdict within four hours.
The Amended Appeal Grounds against Conviction filed on 18 October 2022 raised two grounds. On 21 November 2022, Livesey P granted permission to appeal on Ground 2 and referred Ground 1 to this Court. On 18 April 2023, the appellant filed further Amended Appeal Grounds. That Notice of Appeal redesignated Ground 2 as a particular to Ground 2 and raised three additional grounds. The issues raised by the Amended Appeal Grounds, broadly described, are:
·whether the trial judge erred in directing the jury that ‘it is only if you unanimously reach a verdict of not guilty on aggravated theft, that you will be asked to deliver a verdict on theft’ (Ground 1);
·whether the judge erred directing the jury on matters of fact in respect of which there was little or no evidence (Ground 2(i));
·whether the judge erred in failing to relate his directions on the aggravating feature to an aspect of the defence case, namely that the complainant provided the funds to the appellant in order to achieve an unlawful purpose (Ground 2(ii));
·whether the judge intervened impermissibly during cross-examination of the complainant (Ground 3);
·whether the judge failed to direct the jury adequately as to handwriting evidence (Ground 4); and
·whether the judge failed to comply with s 30 of the Evidence Act 1929 (SA) (Ground 4a).
Background
In 2014, the appellant held a practising certificate as a Barrister and Solicitor in the Supreme Court of South Australia. He was employed as a legal practitioner at Warmings Solicitors. He practiced in Family Law.
In 2004, the complainant married Mr Doug Wright. They separated in 2013 and in 2014 were in the process of divorcing. The appellant was the complainant’s lawyer in the divorce proceedings. The complainant also instructed the appellant in ancillary property settlement proceedings, relating to a property at Woodcroft. The effect of the negotiated settlement was that the complainant was to retain the property, title to which was solely in her name. Mr Wright was to be removed from the joint mortgage over the property. This required the complainant to take out a new home loan in her name only. The appellant was to assist the complainant with the refinancing process.
Although the paperwork with respect to the property settlement had been submitted to the Court by August 2014, orders had not been made and the matter was not finalised. The mortgage on the house, in joint names, was still in place.
The complainant had worked as a mobile hairdresser prior to and during the marriage. Many years prior to the events the subject of the charge, an elderly, long‑term customer had said that she intended to bequeath the complainant some money. At some point in 2014, the complainant received a letter from the solicitors dealing with that customer’s estate, Kelly & Co Lawyers, informing the complainant of the customer’s death and advising that the customer had made a bequest in her favour. The complainant had not seen the customer, who had long since moved into a nursing home, for years. The letter did not identify the amount of the bequest.
In June and July 2014, the complainant received three cheques from Kelly & Co Lawyers on account of the bequest, in the amounts of $30,000, $37,500 and $7,400.
The complainant banked the cheque for $7,400 in her existing mortgage account. She gave evidence that her husband then withdrew $5,000 of that money. She was unhappy about that. She had not told her husband about the bequest, as she wanted to use the money to pay down her new mortgage following the refinancing of the Woodcroft property.
The complainant’s evidence was that she subsequently discussed the inheritance and her husband’s conduct with the appellant. The appellant suggested that she should deposit the remaining cheques into the Warmings Solicitors’ trust account, so that the funds would be available when she needed them to pay into the mortgage account. She agreed to that suggestion. Her intention was to hide the money from Mr Wright.
The complainant then met with the appellant at the appellant’s office. They went to a nearby coffee shop. There, they had a discussion that Ms Wright would hand over the cheques to the applicant to be deposited in the firm’s trust account. The appellant told Ms Wright that she needed to sign the back of cheques for this process to occur. She signed them and wrote her name, ‘N. Wright’, next to the signature in each case. She understood that the cheques were to be deposited into the trust account of Warming Solicitors. Her evidence was that she did not endorse the cheques in any other way.
The copies of the cheques also bore the handwritten words, next to the complainant’s signature, ‘Please Pay Mobile Migration Services’. The complainant gave evidence that she did not write those words, nor did she see them being written. She said that those words were not there when she gave the appellant the signed cheque.
On 7 August 2014, the appellant opened a bank account in his own name, trading as ‘Mobile Migration Services Adelaide’, with the Commonwealth Bank of Australia. The appellant was the sole signatory to the bank account. He deposited the cheques signed by the complainant into this account on the same day. The balance of the account prior to the deposits of the cheques was nil. It was the prosecution case that in order to deposit the cheques, the appellant had written ‘Please Pay Mobile Migration Services’ on the back, after the complainant had signed the cheques and in her absence. Both cheques were debited from the trust account of Kelly & Co Lawyers on 7 August 2014.
On 8 August 2014, the appellant withdrew $20,000 from the account. He then spent the money in the account over about six weeks until it was depleted. There were numerous ATM withdrawals for small amounts of cash, transactions labelled ‘rent’ and transactions at numerous locations, including the post office, the pharmacy, Coles, Liquorland, Woolworths, the Saracens Head and BP.
By 21 September 2014, no further deposits had been made and the balance of the account had reduced to $1,774.97.14. The account entered negative balance on 1 January 2016 and remained in negative balance until it was closed by the bank on 3 May 2016.
The complainant first reported the appellant’s conduct to the police in 2017. On 24 July 2018, the appellant participated in an interview with officers from the Major Fraud section of SAPOL.
The appellant confirmed in the interview that the complainant had spoken to him about the bequest and the potential consequences to the property settlement. He said he told the complainant to put it in his firm’s trust account, which would effectively hide it from Mr Wright. He then said that once the complainant received the cheques, he met her in the café below the Warmings office. He took the cheques to the Warmings receptionist, but she said she could not accept them into the trust account, as there was no active account.
The appellant said that he went back downstairs and explained the situation to the complainant. He said he told her the only other option was to put the funds in his ‘normal business account’, to which she agreed. He said that she then wrote the words, ‘Pay Mobile Migration Services’ on the back of the cheques.
While the appellant in the interview referred to his ‘normal business account’, as identified above, the account was created on 7 August 2014, the same day that the cheques were deposited into it. It otherwise had a nil balance.
The evidence of the bank statements established the fate of the money deposited into the accounts, as described above.
The appellant did not give evidence. One of the main issues that emerged at trial was whether, when the complainant gave the cheques to the appellant to hide the money, he was acting as the complainant’s lawyer, or whether he was acting only on account of their relationship as cousins. The other main issue was whether the appellant had dealt with the money dishonestly, or whether he had lost the money simply by reason of making bad financial decisions.
With respect to the first of these issues, it was put to the complainant in cross-examination that the appellant had explained that he could not put the money in the trust account as there was no active trust account for her. The complainant denied this. It was further put to her that the money was put into the business account with her knowledge and agreement. It was not put to the complainant that she had written the words ‘Please Pay Mobile Migration Services’.
It was also put to the complainant that the appellant had told her that the funds would go into his business account and be used to buy shares. The complainant denied that there had been such a conversation. In the appellant’s record of interview, he said that he had invested the money, but that there was no agreement in place at all.
The direction on the aggravating feature and the alternative charge (Ground 1)
The judge directed on the aggravating feature, and the availability of the alternative charge of theft without the aggravating feature, as follows:
The aggravating feature is it is alleged at the time Mr Freer committed the offence he was holding a position of trust, in that it is alleged he received the funds whilst in a relationship of a solicitor and client with Ms Wright. You know that one of the fundamental differences between the prosecution and the defence is that the defence says no, that was not the case. He was acting as a relation, or a friend and not as a solicitor. You have had that, now you have heard it from me, you have heard it from counsel, you do not need to hear that again.
You will recall that I talked about the fact that even if you do not find him guilty beyond reasonable doubt of the aggravating feature, if you are so satisfied of the four elements of the offence, it was open to you to find as an alternative verdict, him guilty of theft.
I need to give you some detail. That is the introduction to what I am going to say. I need to give you a direction as to mechanically what happens. That is the context, this is the direction.
At the end of the trial when you are delivering your verdicts, you will be first asked for your verdict on the alleged offence, which is the principal offence of aggravated theft, which is the more serious charge, and if you reach a verdict of guilty in relation to that charge, you will not be asked any further questions. It is only if you unanimously reach a verdict of not guilty on aggravated theft, that you will be asked to deliver a verdict on theft. That is because the prosecution is entitled to your verdict on the most serios charge first and it would be wrong to compromise and say ‘We cannot agree on a verdict on that charge, but we agree that he is at least guilty on theft’. So you will be asked first ‘Are you unanimously agreed that he is guilty of aggravated theft?’. If you unanimously reach a verdict of not guilty, you will then be asked ‘Do you find him guilty of theft?’, and you will then be asked your verdict in relation to that.
(Emphasis added)
The judge then repeated, twice, the effect of the passage emphasised above, that it was only if the jury unanimously reached a verdict of not guilty of aggravated theft that they would be asked to return a verdict on theft.
The appellant submitted that the highlighted passage constituted a misleading direction. Section 57(1) of the Juries Act 1927 (SA) provides that where a jury, having retired to consider its verdict, has remained in deliberation for at least four hours and the jurors have not reached a unanimous verdict, the jury may return a majority verdict if a sufficient number agrees. Sub-section 57(3) then provides:
(3) Where an accused person is charged with a particular offence (the major offence) and it is possible for a jury to return a verdict of not guilty of the offence charged but guilty of some other offence for which the person has not been charged (the alternative offence)–
(a)the jury must consider whether the accused is guilty of the major offence before considering whether he or she is guilty of the alternative offence; and
(b)if the jury reaches a verdict (either unanimously or by majority) that the accused is not guilty of the major offence but then, having been in deliberation for at least 4 hours, is unable to reach a verdict on the question of whether the accused is guilty of the alternative offence–
(i)the accused must be acquitted of the major offence; and
(ii)the jury may be discharged from giving a verdict in respect of the alternative offence; and
(iii)fresh proceedings may be taken against the accused on a charged of the alternative offence.
In R v Richards, as the appellant emphasised, Kourakis CJ said of s 57(3):[1]
It facilitates the return of a verdict of not guilty of the major offence when the jury has unanimously, or by majority, reached that verdict, even though the jury is not able to agree on a verdict for the alternative offences.
[1] R v Richards (2016) 125 SASR 341 at [49].
The appellant’s complaint is that the direction was wrong in law, in that the jury did not have to reach a unanimous verdict of not guilty before proceeding to consider the alternative offence.
It is correct to say that the direction did not reflect the complete effect of s 57, in that should the jury have been in deliberation for more than four hours, it would have been open to return a verdict of not guilty by majority. However, s 57 does not require that an initial direction be given, in the summing up, that covers both the requirement of unanimity if a verdict is to be reached within four hours and the facility of a majority verdict after four hours.

It may well be commonplace that, in summing up, trial judges do refer to the ability to return a majority verdict after four hours, while emphasising the desirability of unanimity. Equally, there may be circumstances where a judge, in the exercise of their discretion, determines not to do so. For example, in circumstances where alternative verdicts are in contemplation, simplicity may recommend that the jury first be directed to the immediate task at hand, with a further direction to be made after four hours should that become necessary. In R v Tropeano, Duggan AJ said:[2]
In my view, the manner in which a jury is to be directed on this issue should be left to the discretion of the trial judge. There is nothing to prevent a judge referring to majority verdicts in the summing up proper, although it would be wise to include in any such remarks the desirability of unanimity. On the other hand, it could not be said that a judge would err by not referring to the power to enter a majority verdict in the course of the summing up. It may be that the occasion for raising the issue in some trials will occur in the course of jury deliberations which have extended well beyond the four hour period. In those circumstances it will always be advisable for the judge to invite submissions from counsel before interrupting the jury’s deliberations.
[2] R v Tropeano (2015) 122 SASR 298 at [110] (Duggan AJ, Kourakis CJ and Parker J agreeing).
It was open to the judge in summing up to limit the direction in the way that he did. Counsel at trial did not take issue with the form of the direction. Had the jury’s deliberations extended beyond four hours, it would have been necessary at some point to provide a further direction as to the capacity for a majority verdict. However, that was not required in this case. Not only did the jury return a verdict within four hours, but they returned a unanimous verdict of guilty of the aggravated offence. The judge’s failure to refer, in summing up, to the power to enter a majority verdict after four hours does not give rise to any conceivable risk of a miscarriage of justice.
We refuse leave to appeal on Ground 1.
Directions on matters of fact in respect of which there was little or no evidence (Ground 2(i))
With respect to the aggravating feature of the offending, the judge directed the jury as follows:
You have heard evidence about something called ‘trust accounts’. Some of you may not be familiar with what a trust account is about and I need to say something to you about that. As the name suggests, it is an account into which funds are placed by a client, say of legal practice. That may occur in any number of situations but let us use a basic one, where the legal practice is acting as a conveyancer for the purchase of a house. The purchaser in the usual course may place money into the trust account, it is held there until settlement and upon settlement, the trust cheque is drawn and presented at settlement, or there is an electronic transfer as occurs now. I am starting to show my age by the way, ladies and gentlemen, as I know that now all of these things are done electronically.
The money in that trust account belongs only to the client who provided it. That is the first thing. Secondly, it may only be dealt with and it is protected by, and must be protected by the solicitor receiving it. So the solicitor may only deal with it in accordance with the instructions received by the client and it must be held there pending the client’s instructions.
Ladies and gentlemen, there are obligations upon all lawyers who hold money in a trust account, including to provide trust account statements and records that the money is held in the trust account where it must stay until the client gives an instruction on how to deal with that money.
I come to a second matter. You have heard me talking about endorsing of a cheque - again I am showing my age and I will come to that in a moment. There are some fundamentals, the first is a cheque is regarded by the law as cash. The law states that a cheque is cash. That is the way the law views a cheque. It was once the case, but it is no longer, that the payee of a cheque could endorse it by signing it on the rear and writing ‘Please pay to the order of’. Let us use an example that Mr Foundas has a cheque that he wants to give to Ms Waite. Once upon a time he could endorse it ‘Please pay to the order of Ms Waite’, sign it, present it to her, she could present it at her bank, and upon clearance of that cheque, the value of that cheque would be credited to Ms Waite’s account.
The appellant’s ‘main complaint’ in respect of these directions was that the judge’s explanation of trust accounts and cheques was not supported by evidence. The prosecution led no evidence about lawyers’ trust accounts, or as to the nature of cheques and the capacity for endorsing them to the payment of a third party. The appellant did not complain that the directions contained any incorrect matters of fact. Rather, he submitted that these directions amounted to making up omissions or shortcomings in the prosecution case.
Counsel for the appellant at trial did not object to or make any submission with respect to these directions.
As identified above, the evidential question of whether the appellant had represented to the complainant that he would deposit the cheques in the Warmings trust account was pursued by both prosecution and defence as relevant to the whether the appellant dealt with the cheques dishonestly while acting as the complainant’s lawyer. It was not in dispute that the cheques were not deposited into the trust account. The jury did not have to assess any dealings of the appellant with respect to the Warmings trust account itself.
The workings of a trust account were therefore peripheral to the jury’s consideration. The first three paragraphs set out above amounted to a broad description of trust accounts by reference to the nature of dealings done with respect to them and the obligations that flow therefrom. They were predominantly directions of law, given by reference to broadly described general practices. They provided some basic information about a lawyer’s obligations with respect to trust account moneys. They provided legal context to the uncontroversial evidence that the cheques were not deposited in a trust account and the contested evidence that the appellant had said that he would so deposit them. If anything, they can only have helped the jury understand the legal significance of the factual contest.
Similarly, with respect to the directions about the endorsing of cheques, the only issue was whether the complainant had written the disputed words. There was no issue about whether the cheques were capable of being endorsed. The judge had asked some questions of the investigating officer about the practice of endorsing cheques. In any event, the above paragraph did nothing more than provide some legal context to the practice of endorsement. That was not controversial. The contest lay in whether the complainant had written the words ‘Please Pay Mobile Migration Services’.
The directions complained of did not operate to remedy any deficiencies in the prosecution case. They were not productive of any miscarriage of justice.
The appellant did not make any submissions in support of Ground 2(ii), either in writing or orally. It may be that the intent of this ground is reflected to some degree in Ground 3. Whether or not that is so, there is nothing to entertain with respect to Ground 2(ii) itself.
We dismiss Ground 2.
Whether the trial judge intervened impermissibly during cross-examination of the complainant (Ground 3)
The appellant complained about a number of interventions by the trial judge in the course of the complainant’s cross-examination.
There are numerous authorities espousing caution against trial judges entering into the fray.[3] It is well understood that excessive interference may impair a party’s opportunity to put the defence fully and fairly to the jury. A witness might be prevented from giving a full account of the facts as they understand them to be. A jury might perceive that the judge identifies with one or other party or demonstrates belief in the guilt of the accused.[4]
[3] See generally, R v Esposito (1998) 45 NSWLR 442.
[4] See R v Mawson [1967] VR 205 at 207-208.
In Ratten v The Queen, Barwick CJ said:[5]
As Smith J rightly said in expressing the reasons of the Full Court in this case: ‘Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence.’ It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law.
[5] Ratten v The Queen (1974) 131 CLR 510 at 517.
Greater latitude will be allowed a judge in a civil trial than in a criminal trial.[6] Nevertheless, as Wood CJ and CL said in R v Esposito:[7]
The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend on the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or unequivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.
[6] Galea v Galea (1990) 19 NSWLR 263 at 281 (Kirby A-CJ).
[7] (1998) 45 NSWLR 442 at 472.
In R v MacBeth, Doyle CJ said:[8]
… the ultimate question is whether the conduct of the judge has, in a manner that can be identified or explained in words, made the trial unfair, thus giving rise to a miscarriage of justice.
[8] R v MacBeth [2008] SASC 71 at [74].
The first exchange to which the appellant pointed was not developed as being productive of any miscarriage of justice in itself. Rather, we understood the complaint primarily to be that it was an intervention on which later interventions then built. The exchange occurred in the context of the complainant’s evidence in cross-examination that the appellant had been assisting with her home loan in a personal capacity:
Q.    He was helping you out in his capacity as your cousin.
A.    Yes, and he’d done my settlement as well - was doing it.
Q.So he was helping you out with your home loan in his capacity as your cousin and part of that was to hide this money from Doug so it would be available for your home loan.
A.    Yes, I’ve said that to you a few times, that yes.
HIS HONOUR:    Can I make sure I understand, so the jury understands?
MS WAITE:       Yes.
HIS HONOUR
Q. My understanding of the evidence you’ve just given is your understanding was that from what your discussions with Mr Freer was, the money always remained in the trust account.
A.    Yes.
Q.And that he was giving you assistance in his personal capacity in relation to the home loans.
A.    Yes.
The most that can be said about this intervention on its own is that it clearly amounted to a request for clarification. It did occur in a context where the cross‑examiner was pursuing questioning focused on the complainant’s own conduct of hiding the money. However, in circumstances where the complainant had been open about this fact, the intervention at this point, manifestly to ensure an understanding of the complainant’s evidence with respect to the matter of aggravation, cannot be said to have been undue in any sense.
The first substantive intervention the subject of complaint occurred shortly after this, in the context of cross-examination on the capacity in which the appellant had been assisting the complainant with her home loan. The complainant’s evidence was that the appellant had been giving her assistance in his personal capacity in that regard. The cross-examination then proceeded in respect of the money the subject of the charge:
Q.    Mr Freer was helping you with a home loan at that time.
A.    Yes.
Q.    And that was in his capacity as your cousin.
A.    Yes.
Q.    Not his capacity as your lawyer.
A.    No.
Q.In him taking the cheques from you, he was also helping you in the capacity as your cousin and not your lawyer.
A.    Yes.
The judge then intervened, and the following exchange occurred:
HIS HONOUR
Q.How do you say that, you’ve agreed to that proposition, I don’t understand, you’re saying he was taking the cheques as your cousin.
A.Yes, because he is my cousin and I was giving them to him to help when he did my home loan and he was still my lawyer at the time.
Q.    And at that time your property settlement hadn’t been completed.
A.    No.
Q.    Nor had your divorce.
A.    No.
Q.    So how is it that he -
A.    So I suppose he was my lawyer then, yes.
The appellant’s complaint is that this intervention amounted to impermissible cross-examination that ended up with an answer supporting the aggravating feature, in circumstances where the complainant had already agreed in cross‑examination that the appellant was helping her as her cousin and not her lawyer. Moreover, this was in circumstances where, save for the actual court order, the family law proceedings were at an end. The effect of the intervention, the appellant submitted, was thereby to deprive the cross-examiner of a forensic advantage.
In the first instance, it should be noted that the intervention commenced with the judge expressing that he did not understand the answer. This was in circumstances where the complainant’s evidence in chief was that the appellant had proposed putting the cheques in the Warmings trust account. That fact, if accepted, was probative of the conclusion that the appellant had at the time been acting as the complainant’s lawyer.
The complainant was then cross-examined, however, on her subjective understanding of what was, in effect, the ultimate conclusion for the jury, being whether the appellant was acting in a position of trust, as the complainant’s lawyer, when he dealt dishonestly with the cheques. The question was ultimately an objective one. However, the question that proceeded the intervention the subject of complaint was not directed to the underlying integers of the relationship from which that ultimate conclusion would be drawn. It was, with respect, an impermissible question. Moreover, it followed questions about the assistance being given with the home loan. These questions were all framed in terms of the ultimate conclusion to be drawn about the relationship in each case.
The judge’s intervention is expressed as one of lack of understanding, that is, looking to understand the basis behind the complainant’s answer to the question expressed at that level of conclusion. We infer that this must have been prompted by the complainant’s earlier evidence that the appellant had proposed placing the cheques in the trust account. The complainant immediately explained that her understanding was that he was still her lawyer at the time. The further questions by the judge were directed to the specific integers capable of informing the relationship.
The cross-examination was on the very subject matter of the aggravating feature of the offending. It was not the appellant being cross-examined, but it was the complainant. Further, the judge’s opening words in intervening, ‘How do you say that’, might be thought to convey surprise, given the complainant’s evidence in chief.
However, the context is also important. The immediately preceding questions in cross-examination were put at the highest level of abstraction, that is, at the level of the complainant’s subjective understanding of the very matter in issue. Without an explanation of the factual matters supporting that understanding, the complainant’s answers were of little assistance. Indeed, as we have said, the question preceding the intervention was impermissible. Further, the immediate context suggests some confusion on the part of the complainant, that is, that she was not necessarily intending to convey the binary proposition that the appellant could only be acting as her cousin or her lawyer. That seems to be confirmed by the first answer following the judge’s intervention.
The evident confusion of the complainant was prompted by the impermissible nature of the question. The question should have been objected to. In circumstances where it was not, re-examination would have been available in any event to clarify the factual basis on which the complainant had agreed that the appellant had been helping her in the capacity as your cousin.
The judge’s intervention made such re-examination unnecessary. That is itself indicative of the judge having stepped into the role of counsel. With respect, it would have been preferable for any intervention to have occurred in the absence of the jury and the witness, addressing the difficulty occasioned by the nature of the question. However, we are not ultimately persuaded that the intervention, as it happened, gave rise to a miscarriage of justice. In circumstances where the question was impermissibly framed at the level of abstraction that it was, where the complainant’s subjective understanding of the ultimate issue was not probative of the element of aggravation, the evidence was left in a state of confusion. The judge’s intervention was directed at that resultant confusion.
The next exchange the subject of complaint was as follows:
Q.Ms Wright, as I understand your evidence from this morning you had an expectation that you would receive moneys that had been left to you under a will of Mrs Walsh, is that right.
HIS HONOUR:    When, when is the expectation, that is the weakness of the question, I won’t allow that question.
QUESTION NOT ALLOWED
XXN
Q.When did you have the expectation that you would receive the money from Mrs Walsh.
A.    When I received a letter from Kelly & Co.
Q.    And when was that.
A.    In 2014.
Q.    Whenabouts was that.
A.    I’m not sure what month.
Q.In March or April 2014 did you have the expectation that you would receive the money from Mrs Walsh.
A.    I’m not sure what month.
HIS HONOUR:    Are you saying that there was money, is there an expectation of money coming to her or she’s a beneficiary under that estate or what? What are you asking? The witness has to understand the question.
The appellant submitted that the purpose of the cross-examination was to establish that the complainant knew that she was to receive an inheritance and was trying to avoid paying a proportion of that to her ex-husband. Again, however, the complainant was open that she had intended to hide the money from her ex‑husband, as she wished to use it to pay down the mortgage following refinancing. The cross-examination proceeded on the question of whether the complainant knew how much she was to receive, following which the judge intervened again:
Q.You had an expectation that you were to receive money from Mrs Walsh’s estate, is that right.
A.    Yes.
Q.And by that I mean that you were going to have some amount of money and did you know how much.
A.    No, I didn’t know how much.
Q.    But you knew that you were to receive some amount of money.
A.    Yes.
Q.    And you knew of that in late 2013.
A.    No, I don’t know, it wasn’t until 2014.
Q.And in March or April 2014 did you know or did you have the expectation that you would receive that money.
A.    I didn’t know what month, I don’t remember what month I got the letter.
HIS HONOUR
Q.Can I ask this question: the expression ‘that money’, as I understand your evidence, you had no idea how much money.
A.    I didn’t know how much until I received -
Q.    It could have been $35.
A.    Yes, it could have been.
Q.    And you didn’t know how wealthy -
A.    No.
Q.    - Ms Walsh was.
A.    Yeah, no.

The appellant submitted that the focus in the cross-examination on the lack of probity of the complainant’s actions was directed to establishing that it was unlikely that the appellant would use his firm’s trust account to hide money. It might be his duty as a solicitor to declare the existence of the money. By the judge intervening and positing that ‘it could have been $35’, the judge gave the witness something to pick up on, which may have altered the course of the trial. This was presumably that the judge’s suggestion that it might only be thirty-five dollars negated, to some degree, the unlikelihood of the appellant proposing to use the trust account for this discreditable purpose.
We do not find this complaint persuasive. The complainant had already explained that she did not know how much she was going to receive. Moreover, the prosecution case was that the proposal to use the trust account was raised, or at least maintained, once the complainant had received the cheques. The appellant’s own record of interview supported this case. While we are unsure of the utility of the intervention, we do not think that it caused any prejudice or embarrassment to the appellant’s case.
The final intervention the subject of complaint occurred in the context of the complainant giving evidence, in cross-examination, to the effect that her ex‑husband had found out about the money because the appellant had told him. She said that this occurred after the appellant had been charged, and after the matter had been reported upon in the media. It became apparent in the course of this evidence that the complainant’s evidence was double hearsay, in that it was to the effect that her ex-husband had told her that the appellant had told him. The evidence continued as follows:
Q.So a civil action had followed, as in your ex-husband Doug, he’s sued you in effect, hasn’t he.
A.    Yes.
Q.He did that on the basis that he said that you had lied to the Family Court and you defrauded him of the money.
A.    That’s what he said.
Q.    Indeed, you settled that claim with your ex-husband, didn’t you.
A.    Yes.
Q.    And you paid him -
HIS HONOUR:    Just a moment.
HIS HONOUR
Q.    Was the settlement confidential.
A.I don’t know, Mark knew about it because he had been my ex-husband was showing him the paperwork, so Mark knew.
Q.    Was it required to be kept confidential between you and your former husband.
A.    Possibly, but Mark was still helping him with it, or.
Q.    Helping who with it.
A.    My ex-husband.
Q.    Mark Freer was.
A.    Yes, yes.
Q.    Against you.
A.Yes. Yes, my ex-husband sent me a text messages saying that he'd had a lengthy conversation with Mark exploring what options he could to recover the money from me that I never got.
The complaint here is that by this intervention, the judge elicited hearsay evidence that the appellant had in some way colluded with the ex-husband in order to recover the money. That is, he elicited inadmissible, prejudicial character evidence against the appellant.
The immediate difficulty with this complaint is that the intervention occurred following a line of cross-examination by which the appellant’s counsel had elicited from the complainant the very prejudicial and inadmissible matters of which the appellant now complains. The judge’s intervention questioned the confidentiality of the settlement. The answers that followed, extracted above, only repeated evidence that the complainant had already given in answer to questions in cross-examination. The judge then proceeded to warn counsel for the appellant about the dangers of that line of questioning.
The appellant applied unsuccessfully for a mistrial on the basis of this evidence. The next morning, the judge gave the jury a strong direction to ignore all evidence that the appellant had told the complainant’s ex-husband about the inheritance. He repeated the effect of that direction, again in strong terms, in summing up.
In these circumstances, there was nothing about the judge’s intervention that caused a miscarriage of justice. It is apparent that the judge was looking to address the prejudicial effect of evidence that the appellant had elicited in cross‑examination of the complainant. He made strong, clear and appropriate directions in respect of that evidence.
We are not persuaded that the interventions the subject of complaint went beyond clarifying ambiguities or assisting the jury to better understand the evidence,[9] or intervening to address inadmissible and prejudicial evidence adduced by the cross-examination of the complainant.
[9] Cf R v L, GA [2015] SASCFC 166 at [115].
We dismiss Ground 3.
Failure to give adequate directions as to handwriting evidence and non-compliance with s 30 of the Evidence Act 1929 (Grounds 4 and 4a)
As identified above, the complainant’s evidence was that she signed the back of each cheque and wrote her name next to her signature, but did not write the words, ‘Please Pay Mobile Migration Services’. The appellant said in his record of interview that the complainant had written those words. No expert evidence was adduced comparing the handwriting of those words and the complainant’s name or signature. The disputed words were written in a block print style, while the name ‘N. Wright’ was written in cursive. The signature was entirely different again.
The prosecutor addressed the handwriting on the cheques as follows:
Can I ask you, ladies and gentlemen, just turn up P1 or P2, it doesn’t matter which of those two you pick up, you will see there, on the back of either cheque, you will see the signature and her own writing of her own name, ‘N. Wright’. Can I ask you to look at the font or the handwriting style of the words ‘N. Wright’, not the signature, that’s a bit different, but how she has written her name, the cursive style in which that is written. Compare that with what you see of the words ‘Please pay Mobile Migration Services’. You might think simply looking at that document it’s clear that it’s been written, those words have been written by different people. You might think entirely consistent with what Ms Wright told you about her not having written the ‘Mobile Migration Services’ words and entirely consistent with her account of simply signing the back of the cheque in expectation that the money would go into the Warmings’ trust account. Again, if you look at the other cheque, you will see the same, the handwriting, the difference is the same.
The prosecutor made further comments in the same vein, inviting the jury to consider that the words had been written by someone different from the person who wrote the complainant’s name.
Counsel for the appellant did not address on this topic. When discussing the directions to be given by the judge, however, she submitted that there had been no evidence called about the handwriting, and that the prosecutor’s submission amounted to inviting the jury to conduct their own experiment.
The judge did not give a direction on the topic. Having earlier summarised the complainant’s evidence that she did not write the words, he simply said, with respect to the prosecutor’s address:
He took you through the contents of Exhibits P1 and P2; the signatures identified as the signature of Ms Wright; the fact that she said the other handwriting was not her handwriting; that she had not given any instructions to the accused to endorse the cheque to his private business; that no permission was given to the accused to put the money into that account.
Mr Foundas then submitted if you accept that evidence, then that is sufficient to prove, beyond reasonable doubt, the guilt of the accused.
The appellant submitted that the judge erred in failing to give the jury a warning with respect to the manner in which the prosecutor had asked the jury to go about the task of comparison. He also complained that the judge gave no indication of having considered whether he was satisfied that the handwriting was genuine, as required by s 30 of the Evidence Act.
Section 30 of the Evidence Act provides:
30—As to comparison of disputed writing
Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court as evidence of the genuineness or otherwise of the writing in dispute.
The difficulty with the complaint that the judge did not consider whether the handwriting was genuine, as required by s 30, is that the only relevant handwriting that could be accepted as ‘genuine’ within the meaning of the section was the signature and name ‘N. Wright’ on each cheque. However, the authorship of the name, ‘N. Wright’ was not in issue. There was no further exercise required of the judge in determining that he was satisfied that the complainant had written her own name.
It was permissible, under s 30, for the evidence of the complainant and the writing, ‘N. Wright’ to be submitted to the court as evidence of the genuineness or otherwise of the ‘disputed’ writing, being the words, ‘Please pay Mobile Migration Services’. The prosecution case was that these words were not genuine, in the sense that they were not written by the complainant. The prosecution evidence to that effect comprised the evidence of the complainant and the apparent difference in writing styles. Section 30 required nothing more.
The other issue is whether the judge was required to give a direction. The appellant relied on a number of authorities about the need to caution the jury when comparing handwriting evidence. In R v Baftiroski,[10] expert evidence was adduced that compared handwriting on a ‘tick list’ with comparison samples of the accused’s handwriting. That is to say, the forensic purpose of the comparison was to establish that the accused was the author of the tick list. Nicholson J, with whom Kourakis CJ and Parker J agreed, said of such comparisons:[11]
It is correct that the authorities, including those specifically relied on by the appellant, counsel the exercise of caution in this area, particularly in the case of criminal trials. However, none mandates a particular approach nor a specific form of jury direction always to be employed. Where the relevant finding has to be arrived at beyond reasonable doubt, great caution might need to be emphasised. Where a sample size is extremely small, such as various signatures on competing wills,[12] again great caution might need to be emphasised. What is required in a criminal trial will vary according to the circumstances.
I accept that the very nature of handwriting comparison evidence and the risks associated with an uncritical acceptance of it in the present case are such that caution in its assessment had to be exercised by the jury. However, I am satisfied that the Judge’s summary of the evidence and directions adequately brought this home to the jury.
(Footnote in original)
[10] [2018] SASCFC 83.
[11] R v Baftiroski [2018] SASCFC 83 at [24]-[25].
[12] Sumner v Booth [1974] 2 NSWLR 174.
The need for the warning as described in these paragraphs lies in the danger of an accused being convicted on the basis of uncritical acceptance that handwriting evidence of unidentified origin is the same as handwriting evidence established to be genuine.
However, in the present case, the prosecution did not lead comparison handwriting evidence in support of the proposition that the appellant was the author of the contested words. Rather, it relied on the complainant’s evidence disclaiming authorship of the words, and the manifest difference in styles.
It was not put to the complainant that she was the author of the contested words. That is probably of little moment in the circumstances of the contest. The appellant had said that the complainant was the author in the record of interview, and the complainant had said in evidence that she was not. It was clearly in issue.
It is difficult to see what the content of a warning to the jury should have been. Counsel for the appellant at trial did not request a warning. The appellant submitted that the judge should have cautioned the jury to take care in the analysis, and that they should be cautious of comparing two different styles of writing in order to see whether they were written by one person or different people.
However, the forensic risk to the appellant was that the jury would conclude not that they were written by the same person, but that they were written by different people. The prosecution case did not require a conclusion that separate pieces of handwriting matched. As counsel for the appellant accepted, it was ‘plain as day’ that one piece was cursive, and one block printed. The dangers in respect of which the need for a caution has been recognised were not present. There was no necessity for a warning about dangers or the need for caution in making a comparison.
We dismiss Ground 4.
Conclusion
Following the hearing of the appeal, the appellant filed a Supplementary Outline of Argument directed to the prospect of whether, should the Court find more than one error, none of which amounted to individual miscarriages of justice, they could effectively be accumulated in considering whether the trial miscarried. In circumstances where we have found none of the appellant’s complaints to be established, it is not necessary to consider this submission further.
We refuse leave to appeal on Ground 1. We grant leave to appeal on Grounds 3 and 4 but dismiss the appeal on those grounds. We dismiss the appeal on Ground 2. We therefore dismiss the appeal.