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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Freer v The King

Details

AGLC: Freer v The King [2023] SASCA 69
Case: [2023] SASCA 69
Decision Date: 15 June 2023

CaseChat Overview and Summary

The appeal concerned a conviction for aggravated theft. The appellant, a legal practitioner, argued that the trial judge had made several errors during the trial. These included alleged misdirections to the jury regarding the order of verdicts, directions on matters of fact unsupported by evidence, failure to relate aggravating features to the defence case, impermissible intervention during cross-examination, and inadequate directions on handwriting evidence and compliance with section 30 of the *Evidence Act 1929* (SA).

The Court of Appeal was required to determine whether any of the grounds of appeal established a miscarriage of justice. Specifically, the court considered whether the judge’s directions on trust accounts and the legal status of cheques were unsupported by evidence, whether the judge failed to adequately connect the aggravating circumstances to the defence's submission that the complainant provided funds for an unlawful purpose, and whether the judge’s conduct during cross-examination and directions on evidence were erroneous.

The Court refused leave to appeal on the ground concerning the order of verdicts. Regarding the directions on trust accounts and cheques, the Court found that while the prosecution had not led evidence on these matters, the appellant did not contend that the directions themselves were factually incorrect. The Court dismissed the appeal on the grounds relating to the judge's intervention during cross-examination and the directions on handwriting evidence. The appeal was also dismissed on the ground concerning the judge's directions on matters of fact, including the explanation of trust accounts and cheques.

Ultimately, the Court of Appeal dismissed the appeal, finding that none of the grounds raised by the appellant established an error warranting a new trial or overturning the conviction. The appellant's supplementary argument regarding the accumulation of errors was not considered as no individual errors were found to be established.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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