Job v The State of Western Australia
[2006] WASCA 186
•8 SEPTEMBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JOB -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 186
CORAM: ROBERTS-SMITH JA
McLURE JA
BUSS JA
HEARD: 3 MAY 2006
DELIVERED : 8 SEPTEMBER 2006
FILE NO/S: CACR 196 of 2005
BETWEEN: MICHAEL DOUGLAS JOB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 197 of 2005
BETWEEN :HELEN JANE JOB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FRENCH DCJ
File No :IND 1360 of 2005
Catchwords:
Appeal - Criminal law and procedure - Evidence - Prior inconsistent statements - Whether direction required as to evidentiary effect and use to which the statements may be put - Nature of direction on prior inconsistent statements
Appeal - Criminal law and procedure - Evidence - Testimony of complainant suffering mild form of schizophrenia and depression - Whether her evidence "inherently unreliable" - Whether direction required warning of danger of convicting unless witness' evidence corroborated
Legislation:
Evidence Act 1906 (WA), s 50
Result:
Appeals dismissed
Category: A
Representation:
CACR 196 of 2005
Counsel:
Appellant: Mr P J Urquhart
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Andree Horrigan
Respondent: State Director of Public Prosecutions
CACR 197 of 2005
Counsel:
Appellant: Mr P J Urquhart
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Andree Horrigan
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Alford v Magee (1952) 85 CLR 437
Bromley v The Queen (1986) 161 CLR 315
Condren (1990) 49 A Crim R 79
Driscoll v The Queen (1977) 137 CLR 517
Morris v The Queen (1987) 163 CLR 454
R v Golder, Jones & Porritt (1960) 45 Cr App R 5
R v Schmahl [1965] VR 745
Sorgenfrie v The Queen (1981) 51 FLR 147
Case(s) also cited:
Director of Public Prosecutions v Faure [1993] 2 VR 497
ROBERTS-SMITH JA: These are two appeals against conviction heard together. That is because the appellants were jointly charged with, and convicted of, four offences of stealing and their grounds of appeal against conviction are the same.
The appellants were convicted following trial before French DCJ and a jury between 11 and 14 March 2005, in the District Court at Perth.
Each count charged the appellants with stealing money the property of the complainant, which had been received by them with a power of attorney for its disposition, contrary to s 378(9)(a) of the Criminal Code. The dates and amounts involved were, respectively:
(1)On or about 15 January 2003 - $605
(2)On or about 12 February 2003 - $4650
(3)On or about 17 February 2003 - $2175
(4)On or about 10 March 2003 - $1300
The total amount involved was accordingly $8730.
Following conviction, her Honour imposed fines of $500 on each appellant with respect to each count (a total of $2000 each).
By appeal notice filed 17 October 2005, each appellant sought leave to appeal and an extension of time within which to appeal. On that day, Wheeler JA granted the extension of time. On 15 October 2005 her Honour granted leave to appeal on each of the two grounds set out in each Appellant's Case. Those grounds are:
"1.The learned trial judge erred in law in failing to properly direct the jury as to the use it could make of the prior inconsistent statements made by the appellant before the Guardianship Administration Board.
2.The learned trial judge erred in law by failing to warn the jury of the danger of convicting the appellant on the evidence of the complainant unless it was confirmed by other evidence:
Particulars
2.1The 49 year old complainant had a diagnosed mental disability (schizophrenia).
2.2The complainant was declared a special witness due to her mental state and was permitted to give evidence via CCTV and have a support person present.
2.3By virtue of that disability she had difficulty managing her financial affairs which led to the appointment of the appellants as her powers of attorney [sic].
2.4As the four counts of the indictment related to the management of the complainant's financial affairs, the facts of which were in dispute, it was necessary to warn the jury of the potential unreliability of the complainant's account."
The issue at trial was essentially whether on each occasion the money was taken fraudulently - or, more particularly, whether the complainant had given the appellants authority to withdraw it from her cheque account.
To understand the grounds, it is necessary to outline the evidence.
The prosecution case turned virtually entirely on the complainant's account of events. In summary, her evidence was as follows.
The complainant was a teacher by profession. When she retired (she was unsure in what year), she was a Deputy Principal. At all relevant times she lived in a small Western Australian town with her daughter. At the time of trial her daughter was 11 years old.
Prior to the birth of her daughter, the complainant had suffered serious illness, resulting in emergency major surgery for kidney failure and endometrioisis. Prior to the birth of her daughter, the complainant had been diagnosed with clinical depression. The birth was three months premature and that was also debilitating for her. After the birth her depression became post‑natal depression. She was also diagnosed with a mild form of schizophrenia. As a result of these vicissitudes, the complaint became unable to work, even part‑time. She still suffers from depression and schizophrenia. She continues to be on medication for her mental illnesses, sees her doctor regularly and has regular counselling with her mental health counsellor.
The complainant first came to know the female appellant ("Mrs Job") when the complainant was teaching at the local primary school and Mrs Job's child was enrolled in her class. She later came to know the Jobs better. Mrs Job she particularly came to know better through a prayer and bible study group at the Anglican Church.
Following her retirement as Deputy Principal, the complainant received a disability pension as a result of her physical and mental illnesses. She also received sole parent benefit payments and much later, a superannuation payout in the region of $300,000.
Sometime in 1999 the complainant admitted herself to Graylands Psychiatric Hospital, because she was having difficulty coping with her day‑to‑day routine. She was hospitalised for approximately six or seven weeks. During that time her daughter lived with the Jobs, who looked after her on a daily basis, driving her to and from school, feeding her, making sure she was clothed, washed and all of those domestic needs were met, as well as paying for school and canteen fees.
While hospitalised, the complainant contacted her daughter every night and on a number of occasions the Jobs brought her to visit.
The Jobs also took the complainant to visit her own dying mother at her home at Dalkeith on one occasion.
Following her discharge from Graylands Hospital, the complainant lived with the Jobs for a short while.
The complainant did not give the Jobs any monetary payment for any of these services, but says she later repaid them in various ways by cleaning their kitchen and their home and doing gardening. She helped by looking after their daughter after high school and taking her to piano lessons. She gave Mrs Job a small brooch that her mother had given to her. That was as a way of expressing her thanks to her for taking the complainant to visit her mother before she died.
After she returned home, the complainant visited the Jobs from time to time with her daughter.
In 2002 the complainant was at a prayer and bible study group in a private residence. Within the sanctuary of the group, the members there talked about their personal problems. They put forward their individual problems for help through prayer. The complainant was having a lot of difficulty, even with everyday living. Simple things like washing, paying bills and her financial affairs generally, she found very difficult. She talked about these problems at the prayer group.
Mr and Mrs Job subsequently visited the complainant at her home. They told her they had heard about her problems and offered to help. They suggested she give them her "financial power of attorney". They said they could take her to a cousin of Mr Jobs who was lawyer in Perth who could do it, and they also offered to take her to a financial advisor in Perth to help her deal with problems she was then having getting her superannuation.
The complainant had wanted her superannuation payout to be put in the hands of the Public Trustee. She said her doctor agreed with her, but her family went against her wishes. Her sister made an application to the Guardianship and Administration Board ("the Guardianship Board") to be given control of the complainant's finances. That was contrary to the complainant's express wishes. She described herself as being very hurt, confused and overwhelmed by it. The application was apparently dismissed.
The complainant signed an enduring power of attorney ("EPA") appointing the Jobs her attorneys on 14 March 2001.
She had been very much involved in the drafting of the terms of that document. There were specific terms which she particularly wanted. She saw it as very important that not only her own interests be protected, but also those of her daughter. That is reflected in cl 3(a), which reads:
"My attorneys must act in the best interests of myself and my minor daughter … at all times."
She went on to say in her evidence‑in‑chief (t/s 78):
"---The next step was very important. I wanted to feel that no matter how ill I was, that I still wanted to be told what was going on and make sure I had input into my financial affairs, so I requested that my power of attorneys assist me and encourage me and include me in whatever decisions were made about myself or my daughter."
That desire is reflected in the EPA:
"3.(a) …
(b)My attorneys must act in such a way as to encourage and assist me to become capable of administering my affairs myself.
(c)As far as practicable, my attorneys must consult with:
(i)Myself;
(ii)My current financial adviser Ms Margaret Lobb of Share and Care in [the town] or a financial adviser nominated by me from time to time; and
(iii)Mr Howard Beatton … Mental Health Services, … being the social worker at the … Mental Health Services
Prior to making any decisions concerning my financial affairs.
(d)My attorneys must provide to my family via … copies of all records and accounts they keep of dealings and transactions made by them in connection with the power yearly."
The complainant explained that she saw cl 3(c) as a safety net, so that she would not be working in isolation, and for accountability of the Jobs. These were also the reasons for the inclusion of cl 3(d), but as well that was a courtesy to her family who had been extremely worried about her being ill.
According to the complainant, in the beginning the Jobs were very helpful. They assisted her to organise her day‑to‑day living and to pay her weekly bills. Initially Mrs Job would come to the complainant's home and they would go through the complainant's bills and organise payment.
At that stage the complainant was very ill. Sometimes she contacted them almost on a daily basis, sometimes both in the morning and the evening. On a number of occasions she rang Mr Job to come to her place urgently because there were repairs that needed to be undertaken. In that way he fixed things such as leaking taps and items which had fallen from the roof.
By using the EPA, they were able to secure for the complainant her $300,000 superannuation payout.
The Jobs had told her it would be easier for them if they had a chequebook in which they were the signatories. She said she was reluctant at first, but agreed, because if she were to become seriously unwell again and have to go to hospital, they would need access to a chequebook.
At one stage the complainant's father suggested that she give the Jobs an honorarium to show her gratitude. She said she was happy to do that because they had helped her at a very bad time. She explained that what she meant by an honorarium was a gift to them in appreciation for the help they had given her. As a result, she discussed that with the Jobs, telling her that she would really like to give them a gift of money because they had gone to an extraordinary lot of effort and helped after she had come out of hospital and she asked if she could give them $2500 to express her appreciation. She gave them that amount of money by cheque which she signed. She also told them that she would do the same at the end of the following year if she needed their help, which indeed she did need.
There came a point at which the relationship between the Jobs, the complainant and her daughter changed dramatically. She said there were a number of events that started to make her feel very uneasy and to "listen to [her] gut reaction that something was starting to go wrong". She said it had been her understanding they would meet each week to discuss and organise her financial affairs and her yearly budget and the things that needed to be done in the home and that her daughter needed. She said that even though she understood Mr Job's work on the farm was very demanding, the weekly meetings started to break down and she got the impression the Jobs were starting to distance themselves from her. They were supposed to be working on her tax return and she had been asking them for a spreadsheet. Mrs Job had repeatedly said she would give a spreadsheet of expenses but that was not forthcoming. At the same time they were asking her if she could help with some of their financial situations.
The complainant kept asking for more contact and meetings where they could sit down and discuss these matters. She wanted to review her financial papers. She explained that as she slowly got better, she wanted to learn more and take more responsibility, and it had started to concern her that the more she asked, the more excuses she was given why they could not sit down and have regular meetings and discuss things. She then suggested that it would be a good idea if her own signature was added to the chequebook so that instead of both of their signatures being required, a cheque would be good if it was signed by either of them and her. She explained that would enable her to become more responsible about her chequebook and financial dealings and it would take the pressure off them in that only one or the other would have to meet with her. She said that suggestion met "a very strange response". She thought they would be quite pleased that she was starting to become more knowledgeable and taking up more responsibility and that it would relieve some of the pressure from them, but that is not what happened. Instead, they told her it was not possible. When she pressed and asked why, Mrs Job said she would need to have a "100 per cent identification" which would be too hard and too difficult and Mr Job simply refused to continue discussing it at all.
One such request was to help the Jobs buy a house. The complainant said they explained to her they were worried about not having a home of their own and with the job security on the farm. She said she did not want them to be without a home and so she agreed that she would help in some way to get a house if they needed it. She said there were no other discussions about that. Another request concerned the Job's home computer. They said they needed to replace that and an electric keyboard which their daughter used. She said they told her that they believed they had enough money to cover buying both of them but asked whether, if there was a small shortfall, she would help with that. She said this request was first made by Mrs Job and on a later occasion by both Mr and Mrs Job together. She said they talked in terms of a small difference of "maybe $100". She said she agreed to that.
On another occasion she was having breakfast with her daughter about 7 am, when Mrs Job knocked on the door. The complainant had not been expecting her. Mrs Job explained that she was in a hurry because she was going down to Perth to buy the keyboard and the computer and needed the complainant to write on the cheque stub in case she needed to write a cheque for a small amount of money. The complainant was concerned about writing on the cheque stub. She explained to Mrs Job it was like writing out a blank cheque and she was hesitant to do it. She said Mrs Job assured her there was nothing to worry about and that the complainant could trust her, and so the complainant believed her. She wrote on the stub "Mr and Mrs Job, for digital piano and computer" and then her signature. The stub is dated 10 February 2003. Between the date and the complainant's writing the word "piano" has been inserted. At the bottom of the butt there is an amount written of $4650. Neither than amount, nor the word "piano" in that other handwriting was there when the complainant wrote on the stub. In evidence she said she had no idea that the intended purchase would involve a sum such as $4650.
The complainant expressed her concerns about writing on a cheque butt with a blank cheque, but Mrs Job explained she had to go as she was in a hurry to get to Perth.
The complainant heard nothing further from them in relation to the purchase of either a piano or a computer. She was very worried about what she had written, which she felt was the equivalent to a blank cheque, and wanted to know whether the cheque had been used that day. She felt if it was not going to be used, she wanted to have the cheque torn up. She tried telephoning the Jobs that night and the following nights, but was not able to speak to them until some nights later. She explained to Mr Job that she needed to know if the cheque had been used or not, and that if it had not, she wanted it torn up; if it had been used, she just needed to know about it. She testified that Mr Job told her the cheque had been used in an amount of $900. When she learned that, she was "a little bit taken aback". It was more than the "maybe about $100 difference" they had originally indicated. However, she said she had made the decision to give the money to the Jobs and told that to Mr Job and asked if he would bring the chequebook to her so they could write it on the cheque stub and gift it the way she had done previously with the honorarium. However, he did not bring the cheque stub to her and that was when things started getting even worse.
The complainant continued to ask for meetings for them to get together and sit down and sort out the chequebook, to look at a spreadsheet of expenses and start to plan for the next year's budget. She said she was repeatedly told they were very busy and unavailable. She did eventually have a visit from both of them. She was at home with her daughter when they arrived unexpectedly and started yelling and shouting at her in front of her daughter, saying that she had overspent her budget by $6000 and they were not going to authorise her to spend any money from her account until spring. She said she found that a very frightening situation. She was also feeling even more insecure because she said the Jobs knew she did not have any outside supports to go to apart from them and she started feeling very frightened of them "… because they were starting to turn into the sort of people, that they had said they would protect me from".
Sometime after that, the complainant received a telephone call from Mr Job in which, as she put it, "he admitted that he had helped himself to a loan - he called it a loan - of $6000". She had known nothing about that and it made her even more anxious. Fortuitously, when she was trying to get after hours numbers for mental health care, Telstra gave her the number for the Public Advocate, whom she contacted. She discussed her concerns and was advised by the person from the Office of the Public Advocate on how to revoke an enduring power of attorney. She followed that advice and wrote out a revocation. She tried to contact her doctor to make an appointment with her so that the doctor could sign it, but the doctor was ill and off work for a week. So she rang a Justice of the Peace who witnessed the revocation for her. She sent that by certified mail to the Jobs and faxed copies of it to the banks and to her financial adviser. The revocation read simply:
"I hereby revoke the power of attorney held by Mr and Mrs Job, … as of this day, Tuesday 11 March 2003 (at 4 pm in the afternoon)."
The complainant said she also "signalled" a request to have all of her financial documents returned to her.
According to the complainant, what happened was very frightening. She had returned home in the early evening. Her daughter had been doing sporting activities and the sun was going down. It was time to prepare her meal. The two of them noticed on returning home that the Job's car was parked outside their house. That worried the complainant and she decided to go to the nearest safe house on her side of the river which was the Salvation Army quarters. She saw Captain Merrilyn Furlong (then Cowper). Although the complainant had been going to the Salvation Army since 2000, the Captain was new to her and she did not know her very well, but she was the nearest safe house to which the complainant felt she could go. She spoke to Captain Furlong and returned home when the Job's car was no longer there.
As she was preparing dinner and happened to be closing the front window curtains, she saw the Job's car draw up again. She did not want a confrontation and so she rang Captain Furlong again and told her the people had returned and she was concerned because she was worried about a bad confrontation and they still had keys to her home.
In fact it was Mrs Job who had returned. She let herself in through the door with the key the complainant had given her, and started yelling at the complainant in front of her daughter. She was talking about how the complainant had "spoilt it" because they had just found a house they were hoping to buy and she had "gone and spoilt it". She said the complainant should think about their children.
Captain Furlong arrived and shortly afterwards, so did Mr Job. He arrived "very angry". The complainant asked him in front of Captain Furlong what the $6000 loan was about.
The complainant's evidence was that Mr Job was very angry and did not want the Salvation Army involved. He began yelling at her and making threats. He threatened that if she did not continue to have them as "financial powers of attorney", he would cut off her pension money. He said he would make her starve until she agreed to let them continue being her financial powers of attorney. He said he would tell her family and let her be at their mercy (which she said he knew was a very vulnerable point for her). She said she kept quietly asking him to leave her home. He was very close and very intimidating. He was very dismissive of Captain Furlong being there, saying he did not want the Salvation Army involved. All this was too frightening and confrontational for the complainant, and as Mr Job was not respecting her request to sit down and talk things over and had not respected her request to leave her home, she telephoned the police for help.
The Jobs were still there when the police arrived but left when the police officers told them to do so.
The complainant later received another frightening telephone call from Mr Job asking her to meet with him and his wife to discuss the matter. However, she was frightened when he specifically told her that she was to have no other third party involved. She repeatedly asked him to return her financial papers to Captain Furlong. However, she never received those papers either from Captain Furlong or the appellants.
At the conclusion of her evidence‑in‑chief, the complainant was shown a number of documents.
Shown the chequebook for her account, she was asked about a cheque butt for cheque number 78. The writing on the butt was not hers. The butt was dated 7 January 2003. The indorsement was "[The complainant] okayed Lyn Mills paying back. Property valuation $605". The complainant said she knew nothing about the use of $605 of her money in connection with a property valuation and had never been consulted in any way about it. She knew Lyn Mills "in passing" as a mother who took her children to T‑ball where the complainant's daughter played. She had never lent Lyn Mills any money.
The butt for cheque numbered 98 in the same book was again not in the complainant's handwriting. The date written on it was 13 February 2003. The indorsement was simply "computer" and the amount written was $2175. She said she had no understanding at all that a sum of $2175 was to be used from her cheque account to purchase a computer and she had not specifically been consulted about the use of that money.
Shown another chequebook and a cheque butt dated 22 September 2002, the complainant identified in her handwriting an indorsement to Mr and Mrs Job for $2500 as an honorarium for their assistance and $2500 as repayment for bills paid by them for her, a total of $5000, and her signature. That was the honorarium to which she had referred earlier.
The butt for cheque 101 was in another chequebook (exhibit 6). The indorsement was not in the complainant's handwriting. The butt was dated 26 February 2003 and bore the word "Hammond" and an amount of $1300. She said she had never been consulted in relation to the payment of that amount to anybody by the name of Hammond.
Although she had earlier been associated with the Anglican Church, and in early 2003 still had friends in that church with whom she was keeping in touch, as a place of worship she and her daughter had started going to the Salvation Army. She had never indicated to anybody that she wanted to make a donation to the Anglican Church in relation to an airconditioner.
In cross‑examination the complainant described a particular incident involving her daughter which caused her to stop going to the Anglican Church.
She confirmed her earlier evidence that she had sent the revocation to the Jobs by certified mail, although it appeared she had sent it to the wrong box number. She agreed that on the day she had the conversation with Mrs Job in her house about the revocation, the latter had asked her why she had not sent the document directly to them. The complainant said that she had put it in the mail and she did not realise that Mrs Job had found out from the financial adviser who had told her about it.
The complainant agreed that she later heard from her lawyer that the appellants were claiming that the revocation was not lawful. She agreed that the Jobs made an application before the Guardianship and Administration Board on 22 September 2003, which she attended.
Both appellants gave evidence. At the date of trial they had been married for 23 years. Their two children were a boy aged 14 and a girl aged 17. The family had lived on a farm in the town for the past 11 years. Mrs Job had worked in various places during her life, mostly as a receptionist or personal secretary. At one stage she and her husband had a removal business for about two years. The last two years she had been working for Silver Chain as a carer. She was involved in numerous community groups and activities in the town, apart from those associated with her children's schooling. She was very involved with the Anglican Church, being elected to parish council and subsequently treasurer and then warden. She was in her third term as treasurer.
Mrs Job first met the complainant when her daughter came to be taught by the complainant in grade 2. In September 1999 Mrs Job received a telephone call from another parishioner asking if they could take care of the complainant's daughter because the complainant had been taken to hospital. Mrs Job discussed it with her husband and they agreed to do it. They looked after the daughter for six or seven weeks. When the complainant came out of hospital she was still unwell and did not appear to know what was going on, nor was she able to do anything for herself. The Jobs took her out to their farm where she stayed for a couple of weeks until she improved and was able to look after herself.
The complainant's father later paid the Jobs for what they had done for her.
Sometime later, in 2000, Mrs Job and the complainant were members of a weekly prayer group. The complainant had received notification from the Guardianship Board that her family members were proceeding against her. She was extremely troubled about it and told the group she was not coping and did not know what to do. Her problems were discussed with everybody and shared and prayed about at a couple of meetings, until (according to Mrs Job) the group collectively came to the view that Mrs Job would be the best person to get involved. She spoke to her husband and "it evolved from there and it was at [the complainant's] wish that the PA was then pursued". She said it was the complainant who raised the issue of an EPA. In her evidence, the complainant denied that. She said she did not even understand what it was and had to have it explained to her.
According to Mrs Job, she and her husband discussed the EPA at the complainant's home, when it was agreed they would do it. The EPA was prepared and signed a couple of weeks later. The appellants paid the costs of about $1600 on the basis the complainant would repay them out of her superannuation when that came through.
Mrs Job said that the biggest concern at that time was that the complainant was living only on a pension, yet she had finished her teaching career with the primary school and no superannuation had been paid to her. Using the EPA, the appellants were able to progress that and as a result the complainant subsequently received a payout in excess of $300,000.
Mrs Job confirmed the complainant had said she wanted to pay them an honorarium for what they had done and that she did give them $2500. She said the complainant agreed she would pay them another $2500 the following year.
Contrary what had been put to the complainant in cross‑examination, Mrs Job said there had been no discussion about that equating to weekly payments at a particular rate; her understanding was it was an annual figure of $2500. (In cross‑examination it had been put to the complainant that she had "made it patently clear" in her evidence before the Guardianship Board that she had agreed to pay the Jobs $50 per week for their assistance and services. She denied that, saying that it was Mrs Job who had worked it out at $50 a week. The complainant's evidence was that (t/s 120):
"I had seen it as $2500 for the year. I hadn't been well enough to break it down into the $50 a week that [Mrs Job] explained.")
Mrs Job described having had three meetings with the complainant and the financial adviser the Jobs had arranged. She described the telephone contacts and weekly meetings with the complainant. She explained how she assisted the complainant with her weekly budgeting. That was necessary because the complainant was unable to balance what she needed with what she had. They had done a spreadsheet of her annual expenses to work out what should come out of the superannuation funds and pension payments which had been put into a Macquarie Bank account and thence into the complainant's Commonwealth Bank account for her to use. The figure arrived at was based on $150 a week.
Mrs Job was extensively examined about what she and her husband had done for the complainant both under the EPA and otherwise.
She was taken to records of her own account at the ANZ Bank. She identified a cheque stub for cheque number 1304, the indorsement on which in her writing recorded a payment of $2175 into the complainant's account on 13 March 2005 as being repayment for a computer. She also identified a butt for cheque number 1312 and her writing again, recording a payment of $2000 into the complainant's account. She said that was repayment of a loan which the complainant had approved for the computer and piano.
The payment the subject of count 1 was made by a Macquarie Bank cheque on the complainant's account dated 7 January 2003, signed by Mr and Mrs Job and made out in the sum of $605. In her evidence Mrs Job said that in December 2002 she became aware that Mrs Mills was having problems. There were proceedings between her and her husband in the Family Court. She needed to have her house valued so that she could progress those proceedings and her financial settlement from her husband. Mrs Job said she was aware the complainant and Mrs Mills knew each other because they had worked together and had contact through their children competing in Little Athletics and T‑ball. She expressed concern about Mrs Mills' situation in her conversations with the complainant, saying that Mrs Mills needed money to have the valuation done so she could get her financial settlement. Mrs Job testified that the complainant agreed to assist. She described the complainant's reaction as (t/s 299):
"… very comfortable, very happy and very - very pleased with the thought that she would be able to assist Lyn."
The cheque stub is indorsed in Mrs Job's handwriting:
"Diane okayed. Lyn Mills paying back. Property valuation."
Mrs Job's evidence was that what was there written was true and that (t/s 300):
"All cheques that were ever written out from [the complainant's] Macquarie account were with her knowledge and with her approval. Every cheque."
The money was given to Mrs Mills who repaid it to the appellants once she received her property settlement. They had not passed it on to the complainant at the time of trial because their bail conditions prohibited them communicating with her in any way.
Brought back to this towards the end of her evidence‑in‑chief, and asked what her intention was in relation to the $605 at the end of the trial, she said it was to give the money back to the complainant. The Jobs had the cash and that is who it belonged to. She said the money was with their lawyer.
Macquarie Bank cheque number 92 dated 10 February 2003 was made out by Mrs Job for an amount of $4650. The payee was "Advanced Music". It was signed by both appellants.
Mrs Job's evidence was that at the end of December 2002 her daughter's music teacher had told her the daughter had been unable to practice some pieces because of the condition of the Job's piano. It became clear to them that they needed a new piano. Mrs Job expressed her concerns about this to the complainant who asked if she could assist. Mr Job obtained some quotes. They were quoted $3000 for one piano and $5000 for another. Other quotes were higher. They were uncertain what the final cost would because they did not know what they would get as a trade‑in for the old piano. Mrs Job said prices were discussed with the complainant, who was insistent that she assist in some manner. On Mrs Job's evidence, it was agreed that once the figures had been sorted out and the transaction had taken place, they would meet to discuss the repayments and sign an agreement. Asked what her intention was at the time she and her husband received the money, Mrs Job said it was a loan from the complainant to assist them buy the piano for their daughter and their intention was to fully repay it.
Mrs Job denied having put any pressure on the complainant to indorse the butt. Her account of that was as she and the complainant were working through the complainant's bills and accounts that afternoon, the complainant asked what they had decided about the computer and the digital piano. She said her response was that they were still unclear because they had not finally decided. She said the complainant then said (t/s 304):
"Well, let me have the chequebook and I'll write on the cheque but [sic] for you"
and she then wrote the words and date set out earlier.
The payment of $2175, the subject of count 3 was made by Macquarie Bank cheque number 98 dated 13 February 2003. It was signed by both appellants; all the writing on it was otherwise Mrs Job's.
In early 2003 the Job's home computer crashed and they needed a new one. They got some quotes in early February 2003. They decided to purchase one for about $2000. This was again something Mrs Job said she discussed with the complainant. Asked what was the result of that discussion, she said the complainant "didn't seem fazed". Asked to elaborate, her evidence was that the complainant said (t/s 306):
"Well, you need to have it, don't you?"
to which Mrs Job replied that she supposed they did. When Mrs Job wrote out the cheque, it was a loan from the complainant with her approval and they intended to repay it in full.
The amount of $1300 was used as a contribution to the purchase of an airconditioning unit from Hammond Refrigeration.
It was Mrs Job's evidence that in early 2003 a decision was made at a meeting of the Anglican Church council to raise funds to install an airconditioner in a church meeting room. Mrs Job said she talked to the complainant about it next time she was at the complainant's home.
She said she told the complainant about the airconditioner because she recalled that the complainant's daughter had spent some time in the meeting room where it was to go. She said the complainant asked if Mrs Job thought she could help, to which Mrs Job replied that was entirely up to her. According to Mrs Job, the complainant raised the matter with her a few days later when she was at the complainant's house, asking how she was going with the [fundraising] drive for the airconditioner. Mrs Job told her she had about three or four people. The complainant then told her to let it go for a few more days and she would make up the shortfall.
Mrs Job said that after that, she did her sums and telephoned Hammond Refrigeration and asked them to install the airconditioner. The shortfall was $1300. Mrs Job said she told the complainant that, and she was happy with it. The cheque butt number 101 dated 26 February 2003 noting "Hammond" and the amount of $1300 is in Mrs Job's writing. She said she had no further discussion with the complainant about the airconditioner after that.
The first Mrs Job knew of the revocation of the EPA was when the financial adviser, Boyd Wrightson, telephoned and told her about it. She said she and her husband did subsequently receive the revocation notice by registered mail. The envelope in which it came was dated 11 March 2003 and the address had been altered.
Mrs Job's evidence was that upon learning of the revocation she immediately drove to the complainant's home, hoping to have some clarification of what was happening. This was a Tuesday afternoon in March. The complainant was not home when Mrs Job arrived, so she went to the shops to make some purchases. When she returned, the complainant was at home. Mrs Job described what followed (t/s 310 ‑ 311):
"I knocked on her door. She didn't answer her door, so I used my front door key and I went in and found [the complainant] there and asked her what was happening. Was this true that the revokement - that she had brought a revokement against us.
What was her response, if anything, to that?---She said to me that she wouldn't discuss it with me until she had a witness.
What did you do? Did you say anything to her in response to that at all or not?---I just said I felt it was very important to discuss the matter, to sort it out, to sort out any issues that she had and she kept saying she wanted a witness. So I placed the key on the table and I went outside and I phoned Michael.
Was there any other conversation had at that when you were inside?---Just that she - she needed to clarify it with us. We couldn't - we couldn't leave this - we couldn't leave things as they were. We had a very strong friendship. There was trust between both of us and how could she just puff all that away in a wind, so to speak.
You went outside and you phoned Michael. Did Michael then arrive?---Yes, Michael arrived.
Do you know, as she was then, Captain Merrilyn Cowper?---Yes, captain [sic] was inside with [the complainant].
When Michael arrived, what happened?---Well, we both went back inside and then Michael spoke to [the complainant].
What did he say when you were there?---He wanted to know what was going on, what was her problem.
Was there any response from [the complainant]?---She wanted her papers back.
Is that the only thing she said, she wanted her papers back?---Well, she kept saying she wanted her papers back.
Right?---Yes.
In relation to Michael, did you hear anything else that was said at that time?---Well, he kept pushing the fact, what was her problem, we needed to sort it out, we needed to discover what her problems were about it. We were both upset. We were both trying to establish to get some communication happening and we just were met with nothing much. At that time then I had to leave because I had to collect [my daughter] from somewhere. I can't remember where it was.
Where was [the complainant's daughter] at that time?---[She] was in the shower.
Can I ask you this as well, what else was said, if anything, to your recollection by [the complainant] when you were inside the house?---Well, as I just stated - sorry, by [the complainant] was that she just wanted her papers back.
Was there any discussion about any moneys at all?---Not while I was there, David, no.
In relation to [the complainant], did you subsequently leave the house?---I left and went and collected [our daughter].
Right?---And by the time I came back, I left [her] outside, went back in the house, that was when [the complainant] was phoning the police."
Mr Job went on to say that she and her daughter waited outside for the police. Mr Job remained inside talking to the complainant. Mrs Job described him as "agitated", but denied he was yelling.
The police arrived and spoke to the appellants outside the house after which the appellants left.
Asked why she and her husband had not returned the complainant's financial papers to her when she asked for them, Mrs Job said the EPA "… was set up with doctors' signatures on it" and it was her understanding from what was in the papers from the Guardianship Board that it would have to be revoked in the same manner and:
"… therefore there needed to be a medical opinion for [the complainant] to be able to revoke the EPA". (t/s 313)
She then answered in the affirmative to leading questions from her own counsel, indicating that as a result, she and her husband brought an application before the Guardianship and Administration Board "to remove themselves from being the EPA". That was heard on 22 September 2003.
In cross‑examination, Mrs Job said there had been more than one discussion with the complainant about the money Mrs Mills needed for the valuation. She said that in discussions leading up to the payment, there was no idea how much it would cost, but there was agreement by the complainant "in principle" that she would assist Mrs Mills, and so when the account came in, Mrs Job paid it. Mrs Job denied that the complainant was not aware of the amount before the account was paid. She said the account was not paid immediately when it came in. She agreed that despite that, she did not get the complainant to give any written indorsement of that sum.
It was then put to Mrs Job that she was clear the arrangement was always one whereby the complainant was to be repaid by Mrs Mills. She agreed to that. The cross‑examination then continued (t/s 320 ‑ 324):
"That's not what you have always maintained in relation to that issue, is it?---Yes, it is.
You have given a different complexion in relation to that sum of $605 on another occasion, haven't you? No, I haven't.
You gave some evidence before the Guardianship Board back on 22 September 2003, didn't you?---I didn't speak much at that hearing. I was present.
You gave some evidence at that hearing, didn't you?---Yes.
You see, what you maintained at that hearing was, in effect, that [the complainant] wasn't to be paid back at all, that in effect this was part of reimbursement for your own expenses in providing work for her. That's what you maintained to the Guardianship Board, isn't it?
MOEN, MR: (indistinct) page please for that? Could I have a page ‑ ‑ ‑
DE MARS, MR: I will come to the - any specific portion of that, if necessary, your Honour.
That's what you maintained to the Guardianship Board, wasn't it?---That might have been said at that time. Yes.
So you agree with me ‑ ‑ ‑?---However - however before you proceed ‑ ‑ ‑
Just - no.
FRENCH DCJ: Just wait for the next question?---Sorry.
DE MARS, MR: You agree with me now that you haven't always maintained that [the complainant] was going to be repaid that money by Lyn Mills, have you?---You have just refreshed my memory to a further extent, if I may? The arrangement was always that Lyn Mills was going to pay that back. If it didn't happen within that financial year to make the books balance then the money would come from moneys that we earned from her.
And was this - so this was a further agreement, was it, that you had with [the complainant]?---No. No. That was always - that was always in there.
What was always in where?---It was always in the discussion.
In what discussion?---Between myself and [the complainant].
I'm afraid I'm a little bit confused. What you seem to be saying is that in relation to this $605 there was some further agreement that were it not to be repaid by Lyn Mills it would ‑ ‑ ‑?---In the financial year.
- - - it would come from some other source?‑‑‑That's correct.
Is that right?---Yes.
And when did you strike that sort of agreement with [the complainant]?---When it was agreed in principle for her to help.
So there was more to what you say you agreed with [the complainant] than simply it being a situation where the money would be repaid by Lyn Mills. Is that right?---Yes.
So you didn't tell us about that earlier, did you?---No, because Lyn was always going to pay the money back. That was first and foremost.
And the money wasn't paid back within the financial year, was it?---No, it wasn't.
And this $605 hasn't somehow been written off against some sort of service fee or service amount, has it?---We had no more dealings with [the complainant's] financial affairs as from ‑ ‑ ‑
You maintain you ‑ ‑ ‑?--- ‑ ‑ ‑ March 2003.
You maintain you provided services for her up to March 2003, don't you?‑‑‑Yes. I said the end of the financial year. The financial year is June.
And, indeed, you assert some sort of right, don't you, in relation to what you would suggest are unpaid moneys from [the complainant] for what you regard as your services, don't you?---Yes.
Indeed, you have put that in documentary form, haven't you? You can answer the question. You have put - ‑ ‑?---Yes, we have.
‑ ‑ ‑ that in documentary form, haven't you and you gave that to the Guardianship Board, didn't you?---That's correct, yes.
And that was an attempt to justify and suggest to the Guardianship Board that you had some sort of right to this $605, wasn't it?---No.
There was never an agreement struck with [the complainant], was there, that you were going to receive $50 a week from her?---There was always an agreement between [the complainant] and myself and my husband that there was 2500 going to be paid at the end of the year.
There was no suggestion, was there, that there would be weekly instalments of $50 paid?---If you break the 2500 down it comes out at $50 a week. We were assured by the Guardian ‑ ‑ ‑
Can you answer the question. There was no agreement, was there, that $50 was going to be paid each week?---The agreement was 2500 at the end of the year.
Yes. Do you recall telling the presiding member of the Guardianship Board when she asked you whether any amount that was being paid for services by [the complainant] was by way of repeating honorarium, do you recall responding, 'No, no, no there was an agreed amount of $50 a week'?---No, I don't recall. But it was agreed ‑ ‑ ‑
Do you accept that you said that during the Guardianship Board hearing?---Yes, yes, and I also point out that Mr Ho accepted that it worked out to $50 per week that's in that transcript.
Do you recall indicating to the presiding member that honorariums were, in fact, things that were going to be paid in addition so the sum of $50 a week?---No, I don't remember stating that.
Do you accept that you said that?---If it's there, then I would have said it, yes.
Do you accept that you said this:
Honorariums are things where we have done work, my husband was up on the roof, he put together furniture, he did all that sort of thing.
And the presiding member said:
So that's in addition to the $50 a week.
And you said, 'yes'?---That's correct.
In that context, you regarded honorariums as payments made in relation to work services rendered. Is that right?---Outside of managing the financial affairs.
Do you recall at the Guardianship Board hearing, the presiding member going on further and asking you this:
What you were saying before is that these two payments, the church airconditioner and the property valuation were in substitution for $2000 worth of the $50 a week?
You said, 'Yes.' Do you recall that evidence being given by you?---Yes, I do.
Page 33 to 34 of that transcript. You do? ---Mm'hm.
I suggest to you again, do you accept that what you told the Guardianship Board is completely at odds with what you have told us here in evidence in relation to the way in which that $605 was going to be accounted for or paid back to [the complainant]?---Lyn Mills was always going to pay back the money and then it was going to go to [the complainant]."
Mrs Job was then referred to evidence she had given in‑chief, that the complainant paid them an honorarium of $200 on 7 February 2003 for putting together Ikea furniture the complainant had bought. Initially she was unable to recall in cross‑examination a large purchase of furniture costing $1615 in December 2002, but shown her own accounting record she eventually conceded there had been. She agreed the complainant had paid her and her husband $200 for that carpentry work (as she described it) on 23 December 2002. She could not recall what the payment of $200 on 7 February 2003 had been for. She accepted her earlier evidence about that had been wrong.
Mrs Job was cross‑examined at length about payments made to her and her husband by or on behalf of the complainant for things done by them for her. She confirmed the complainant's father paid them an amount in respect of her stay with them in 1999. She agreed she and her husband were not left out of pocket in relation to any of Mr Wrightson's fees. She said those were paid out of the complainant's superannuation money.
When it was first put to her, Mrs Job said she believed the complainant's father had been particular about the original payment of $2500 for them, being an honorarium, which she understood to be in the nature of a gift. However, when it was then put to her that it was not a fee for services rendered, she said (t/s 329):
"The discussion between [the complainant] and myself and Michael was that there was $2500 as a fee for every year there afterwards. It was not as an honorarium. It was for a fee."
In relation to the EPA, Mrs Job said she certainly had a good understanding of what was involved in undertaking to have someone's power of attorney. She said it was to manage the complainant's finances and agreed that one of the reasons, in respect of someone suffering such a condition as the complainant, was to protect her because of her vulnerability, from making poor decisions herself in relation to other people with whom she may have financial dealings and from people who might seek to take advantage of her. Mrs Job acknowledged she had read the EPA carefully and understood that first and foremost they had to act in the best interests of the complainant and her daughter at all times. She understood specifically that they had to act in such a way as to encourage and assist the complainant to become capable of administering her affairs herself. The cross‑examination then continued (t/s 331 ‑ 332):
"I suppose some of the things, bearing in mind those responsibilities that you were taking on responsibility for were, for example, to try and see that she didn't make purchases or expend money well in excess of budgeted amounts. Would that be fair to say?---Yes.
That she wouldn't go off making loans of significant sums of money to other people?---Yes.
There certainly wasn't any provision in any of the budgeting you were involved in for her making loans to anyone, was there?---No, there wasn't.
Certainly no provision in any budgeting that you did with her for her to make gifts to any people or organisations in large sum, say, in excess of $1000, was there?---No, there wasn't.
Presumably those sorts of things weren't in her budget because it would have been patently clear that in her condition it would not have been in her best interests or the best interests of her daughter to be making those sorts of payments, would it?---That's correct.
This is a woman who had trouble budgeting her money, wasn't it?---She improved out of sight.
She improved out of sight. It was a woman who you would maintain made, on occasions, what frivolous purchases, unnecessary purchases?---I wouldn't agree with that comment, no.
She was a woman - you were concerned about how she would manage money were she left to her own devices were it in her own hands, weren't you?---Yes.
Concerned that indeed she might well expend a lot more than had been budgeted or?---Yes.
Let's say, in relation to your responsibilities, your sole and -responsibilities under the power of attorney - let me ask you this. If [the complainant] were to come to you and say she wanted to make a significant loan to another person, say in the sum of a few thousand dollars, would you see yourself as having some role in relation to her coming to you and asking you about that?‑‑‑It would have to be looked at. It would have to be discussed. It would have to be reviewed.
Yes, because indeed she never made a loan so far as you're aware to anyone during the course of the EPA apart form, you might say, yourself and Mr Job and perhaps Lyn Mills. Is that right?---There were times when she would give people money.
She certainly never made a loan in sums of thousands of dollars to anyone other than yourself and Mr Job, did she---That's correct."
The cross‑examination then continued in relation to the individual transactions the subject of the several counts.
The cross‑examination subsequently extended across the records kept by Mrs Job in respect of the complainant's finances and accounts and when certain documents were prepared. Amongst the points brought out from this was that although she had prepared a computer printed compilation of payments, and in many instances there noted additional information about the purpose of the particular payments, that had not been done in respect of the $605 for the valuation (t/s 352), the cheque of 12 February 2003 for the digital piano, nor the 17 February 2003 cheque for the computer - none were noted as loans from the complainant to the appellants. The same document (which had been separately prepared by Mrs Job and never seen by the complainant) did give additional information in respect of cheque 101 of 26 February 2003 to the effect that the funds were used with the complainant's knowledge to help install an airconditioner at St John's Centre. However, further cross‑examined, she conceded that entry was made after the revocation. When it was then suggested to her that she had made that entry in respect of cheque 101 once the issues about the revocation and the Guardianship Board arose, so it would be consistent with her account of the use of the $1300, she replied by repeating that donation was made with the complainant's knowledge and approval.
Counsel then turned again to what had transpired before the Guardianship Board (t/s 354):
"… that, you say, is what had been, in effect, agreed to by her with you that this was a donation?---Yes.
For $1300?---Mm'hm.
You don't suggest, do you, for one minute that it was $1300 that she was providing in lieu of $1300 that she owed you?---No.
Can I suggest to you that, that is however what you indicated again to the Guardianship Board. That the $1300 she gave was, if you like, in effect, an advance of sorts on money that you would have maintained she owed you?---I don't remember everything I said at the Guardianship Board.
Well, let me take you back to it again. I think I've taken to this passage before but you were asked, looking at page ‑ ‑ ‑?---If it's recorded there then I obviously said it at that time, yes.
And it wasn't true. Was it?---What? That [the complainant] gave me a donation?
It wasn't - what you said to the - what you indicated to the Guardianship Board that this was, in effect, $1300 in lieu of money that you would be receiving from her, was not true, was it?---What I said at the Guardianship hearing was what I felt was the truth at that time."
A little later, the State prosecutor referred Mrs Job to exhibit 24, a one page document produced by Mrs Job for the Guardianship Board hearing (t/s 356):
"And you, in that document, indicated that you were owed certain money by [the complainant]. Is that right?---That's correct.
I think included in those things, at the bottom, what's referred to as two stays for [her daughter], one for Salvation Army retreat $100, one for [the complainant] in hospital $100?---Mm'hm.
Can I ask you, when do you suggest that those costs were incurred by [the complainant]?---[the complainant] was in hospital in January and [the complainant] went to a Salvation Army retreat sometime late, what would it be, it would be late in the year 2002.
So, what, [her daughter] stayed at your place on those occasions?---That's correct.
And you assert by virtue of that that she incurred a cost to you of $100 on each occasion?---Yes.
Is that right?---Yes.
What was that for?---For taking care of [her daughter].
You certainly hadn't struck an agreement with her that she'd be paying you $100 for [her daughter] staying with you on those two occasions, had you?---No.
So it's just something, you think it's worth - that amount of money to you should have been paid by her. Is that right?---There was no offer of anything; it was just expected and so when ‑ ‑ ‑
You expected a vulnerable woman with a condition you well knew to pay you $100 for two occasions when you looked after her daughter in circumstances where you'd made no such arrangement for any such payment to be made. Is that right?---Well, [the complainant] was well enough to go off to the Salvation Army retreat.
I think also in that item in terms of money that you suggest was owed to you was $35 in relation to a book of Family Virtues and I think the evidence you gave to us earlier was that that was a book of yours that was in her possession. Is that right?---That's correct.
So by virtue of - what, that had been loaned to her, had it?---Yes.
So by virtue of the fact that you'd loaned her a book and it was still with her your thought was that that resulted in her incurring a $35 debt to you. Is that right?---Mm'hm, yes.
There's an entry there, 'Work done since August 2002 each week at $50, 33 weeks, $1650.' I presume this is your calculation of a pro rata amount of the $2500 honorarium.
Is that right?---That's correct, yes.
The honorarium first having been paid on 22 September 2002. Is that right?---That's correct.
So potentially it would have been due, you would say if you work this out on a pro rata basis in respect of assistance you gave her from 22 September 2002 and following?---Mm'hm.
So, what, up until the period, the time when the EPA was revoked in - ‑ ‑?---That's correct, yes.
‑ ‑ ‑ in early March of something like 24 weeks. Is that right?---Well, 33 weeks.
I think the maths can be done later if need be?---There might be an error in the maths.
Right?---But that's how [sic] been worked out, yes.
But, of course, that's your, if you like, your reckoning of the fact that you anticipated there may be a payment of 2000 and $500 in circumstances where the EPA continued for a further year. Is that right?---Yes.
You see, I suggest to you that the document you've prepared there is really an attempt by you to justify to the Guardianship Board the use of [the complainant's] money in the way that you thought the Guardianship Board might well have been pretty concerned about. Is that right?---That's not true. It was a document prepared by myself.
It's pretty over the top, really, isn't it, to suggest that you were owed money like $100 on two occasions for having looked after a daughter in circumstances where you were aware of her condition. It's pretty over the top, really, isn't it?---I don't believe so, no."
There was then further cross‑examination about particular transactions. It is not necessary to rehearse all that here. It may be noted however, that in relation to the airconditioner expenditure, Mrs Job agreed (somewhat reluctantly) that the amount of $1300 which she had described as the "shortfall" was in fact 60 per cent of the total cost. She also conceded that at the time she had given Lyn Mills the $605 for the valuation, she had not mentioned that the money had come from the complainant. Mrs Job agreed the complainant had been wanting to be more involved in her own affairs, but they had not been able to organise a meeting because of their other commitments. She agreed that they gave no‑one access to the complainant's financial records until September 2003, because it was the Job's position that they were not able to release them.
Mr Job had been a farmhand mechanic for about 11 years on that particular farm.
His evidence was that in 1999 his wife asked him if they could take a power of attorney for the complainant at the complainant's request. He said they could. He said they would not have done so had the complainant not requested it. Consequently, he telephoned a cousin who was the principal of a law firm and asked him to set it up. That was done at a meeting the three of them then attended with the lawyer.
He did not have as much to do with the complainant as did his wife, although the complainant would call him on his mobile phone to do maintenance on her home and other such tasks.
It was Mr Job's suggestion that Boyd Wrightson be appointed to assist in relation to the complainant's investments. He had known Mr Wrightson for some years and trusted him.
Mr Job spoke about meetings he and his wife had with the complainant to discuss budgeting.
In relation to the cheque for Lyn Mills, he said he knew her on a social basis and they had been to each other's houses to parties. He was aware of her marriage break‑up and:
"… I got from Helen that [the complainant] was also aware of that situation and was wanting to help her and that was what the cheque was for."
He said his understanding was that when Mrs Mills received her settlement, the money would come back. He had no conversation personally with the complainant about this.
He did say, however, that he had discussions with the complainant about the piano and the cheque for $4650. She wanted to gift the money to them, but he insisted it had to be a loan. Some of these conversations were at her home but most were by telephone. He said there was one conversation he had with her in which he mentioned the cost of the piano probably exceeded what they originally thought. He said he gave her a figure of "around about fourish". Her reaction was to ask whether what they were going to get was going to be good for their daughter. When he said that it would, she said "Well, it's for [her] so I don't see the problem".
Later, when they actually purchased the piano, it cost more than they had anticipated and they were given a trade‑in which was lower than they expected. They mentioned this to the complainant later and Mr Job got the impression she thought it was probably a bit more than she had thought, but it was all right.
As to the computer, Mr Job said he telephoned the supplier and got a price very close to $2000. He said it was discussed with the complainant. She was again keen to gift the money, but he was not happy with that and insisted it be a loan. That money had since been paid back, but he was unable to recall when.
Shown a cheque butt 1312 for $2000 dated 17 April 2003, he said that was part‑payment of their loan. The original intention was to repay $2000 a month but it was at that time things started to deteriorate between them and the complainant.
Asked about the airconditioner, Mr Job said he was the St John's representative (relating to a particular building within the parish) on the Parish Council and had special responsibility for the maintenance and preservation of their five churches and two halls within the parish. At one council meeting there was a discussion about the need for an airconditioner in the main meeting room, in which they were at the time. They decided to have a fundraising drive amongst members of the parish. He discussed it with his wife. He had no discussions with the complainant about it. He subsequently understood from his wife that when the contributions or commitments were added up, there was going to be a shortfall. She had approached the complainant who was happy to contribute.
Mr Job first heard about the revocation while he was out fencing.
He received a telephone call from his wife. She said Boyd Wrightson had telephoned her and told her the complainant had filled in a "revokement" and he had a copy of it. His wife was very concerned about it. She asked him to come into town. He drove straight into the complainant's home. He went inside. His wife was still in the kitchen. She told him that she was "pretty upset" and would not seem to get a clear reason from the complainant as to why this was happening. His wife left at that point because she had to go and collect their daughter from a music lesson. He said he then spoke to the complainant, asking her what was the need for the revocation and what was the problem. He said her response was "What about this $6000" and his response to that was to say that they had discussed it but asked whether it was upsetting her. She told him it was. He said his response to that was "Well, I'll just use my bankcard and take it out tomorrow and give you the money". He said he did have enough money in the account to do that at the time. He was trying to settle her down to continue a conversation, but it did not really seem to have the desired effect. His evidence‑in‑chief then continued (t/s 388):
"What was your demeanour like at that stage, Mr Job?---I wasn't [sic was] a bit upset because to me it was out of the blue. She hadn't expressed this degree of dissatisfaction. I would have thought there would have been a build up much more than - but anyway - so I then proceeded to continue to ask the same question and I didn't get a very positive response except, 'I want my papers and I want you to go.' I then said to her, 'Do you - do you realise that the revokement may not be legal?'
What was her response to that?---Her view was that it - she didn't really much respond. She didn't like what I had to say and I further went on to say that there would have to be some sort of medical involvement; ie, you know, to see how - 'what state you're in if you want to - if you want to revoke without anybody else taking over,' which is what her intent was, 'you can't do that - ‑ ‑
How long ‑ ‑ ‑?---'‑ ‑ ‑ without going through proper processes.'
How long did all of this conversation last for? Can you tell us?---Well, not all that long. Probably 10 or 15 minutes. She wasn't very responsive.
Right?---She actually left the kitchen area and went down to the bathroom and refused to come out of the bathroom and Merrilyn Cowper went down to the bathroom and said to [the complainant], 'You're not handling it doing this.' She did come back out of the bathroom but she didn't communicate.
Right, and what happened after that. Did you then stay or did you leave or what?---She asked me to leave."
Mr Job denied threatening the complainant in any way. He said the complainant subsequently called police. When they arrived, he and his wife had a conversation with them out the front of the complainant's house and then left.
Mr Job said he telephoned the complainant on three occasions after that, but she told him to talk to her solicitor.
He said that later, he and his wife made an application to the Guardianship Board to remove themselves as the complainant's attorneys. He explained that they wanted to end the EPA in a way that would be legal and that (t/s 391):
"… and nobody could say whether there was any leftover responsibilities and we walked away. My fear was we could - we walk away from it and we weren't actually discharged that responsibility, that someone would come back and have a go."
The Board made its decision on 22 September 2003.
In cross‑examination, Mr Job agreed that the position he and his wife took before the Guardianship Board was that the complainant was not competent to manage her affairs and that the Board should make an order that her affairs be conducted under the administration of the Public Trustee.
When the State prosecutor first put to Mr Job that the Guardianship Board had in fact found the complainant's revocation of the EPA had been competent and lawful, he cavilled, but eventually acknowledged that had been the outcome.
He denied that he and his wife had gone to the complainant with a proposal that they act as her attorneys, after she had spoken at the bible group about her difficulties. Asked about his concerns regarding the complainant's budgeting, Mr Job said there had been "issues" with the amount of money being spent. The complainant was overspending, so they drew up a budget for various household expenses, including repairs and maintenance. He gave a "ballpark figure" for restumping the complainant's house. He allowed $3000 for that, but on closer examination it turned out to be woefully inadequate. He arranged for a tradesman who he used with the church. The eventual cost was in excess of $11,000. Against that background, the cross‑examination continued (t/s 410):
"It was that sort of thing that was causing a significant budget blow‑out in your mind. Is that right? There was $8000 gone there in one hit. Is that right?---There were other things that that went out probably a greater figure than what we'd anticipated, but it was the things that she was doing that could aggravate that further and I wanted her just to steady down a little bit, that's all.
In circumstances where you had those concerns and you wanted her to steady things down, you were quite happy to sign cheques for funds from her account to go for purposes such as payment of someone else's property valuation. Is that right?‑‑‑Well, she was agreeable to that, yes, that's right.
In circumstances where you were so concerned that there was urgency about budgeting and needing to have meetings, notwithstanding that you were happy to sign a cheque, for example, for her to pay for someone else's property valuation. Is that right?---Yes. She was going to get it back.
You were happy to sign a cheque for what you say you understood to be a donation to the church for the sum of $1300?---Yes.
She wasn't going to get that back according to you, was she?‑‑‑No."
Taken to the purchase of the piano, Mr Job said he had a "pretty distinct" recollection of his discussions with the complainant about it. They were "basically on the phone" several weeks prior to the purchase that he told her it would be about $4000. Asked how many occasions there had been when she was given this information, he said there were several, the last being the night prior to the revocation. Asked specifically on how many occasions prior to the purchase of the piano he told her the amount was going to be about $4000, he said he could only recall one conversation.
The cross‑examination then continued (t/s 412 ‑ 413):
"One conversation; I see. You talked about that actual figure, about $4000. That was your evidence yesterday?---Yeah. That was my assumption without knowing what my trade‑in was going to be.
Yes. You see, you maintained something different in your evidence to the Guardianship Board, didn't you, in relation to any preliminary discussion about costs of a piano that you had with [the complainant]. Do you accept that? Do you accept that when you gave evidence before the Guardianship Board, talking about the piano and the computer, the presiding member of the Guardianship Board said there was discussion with her about you needing a computer. Your response was, and this is page 30:
There was a discussion with her about that and we were specific about what the loans were going to be for and they were going to be for the computer and for the piano.
The presiding member said 'Right' and then you went on and said this:
I grant you that we didn't talk about an actual figure of money in that. We spoke to her about those purchases.
PRESIDING MEMBER: Right, in general terms?---In general terms.
Do you accept that's what you told the Guardianship Board?‑‑‑Yes, I do."
Later, Mr Job was asked again about the $1300 for the airconditioner. He reiterated what he had said in evidence‑in‑chief, namely that he understood from his wife that that was a donation by the complainant to the church, although he agreed the position he and his wife represented to the Guardianship Board about that had been quite different.
There was further cross‑examination about payments for jobs made to themselves out of the complainant's account, for services or items for which they contended she owed them, and then counsel returned to the piano and computer (t/s 417 ‑ 418):
"The purchase of the piano and computer that has been referred to in evidence, of course you say that that was in the nature of a loan , don't you?‑‑‑Yes, I do.
But of course you don't dispute that there were no set terms in terms of amount or ‑ ‑ ‑?‑‑‑If you're saying ‑ ‑ ‑
‑ ‑ ‑ repayment conditions before the money had been used, is there?‑‑‑There was no written agreement, no.
Again, I want to come back to this point of your concerns about her budgetary situation, Mr Job, because - I mean we have already established really, haven't we, the fairly grave concerns you had about ensuring that her budgetary situation was in order at around this time, haven't we?‑‑‑Yes.
And notwithstanding that, what you are telling us is that you agreed a loan with her without any terms - you were loaning money from her for purchases for significant items without any set terms whatsoever. Is that right?‑‑‑That's right.
Surely you would accept that was highly irresponsible in light of the concerns you had about her budgetary situation, you as her powers of attorney, you would say, taking a loan from her on that basis?‑‑‑There was a very strong friendship at that time and a trust between us and there wasn't an attitude from her that she was unhappy with it.
See, I suggest to you that you just would not do that. You just wouldn't take a loan. No‑one in their right mind would take a loan from a vulnerable person who they are supposed to be protecting when at the same time they have got concerns about their budgetary situation. You can't have done that, Mr Job, can you?‑‑‑Well, she was keen."
There was further cross‑examination but it is not necessary to canvass it here, other than to set out the remaining passages which are the subject of ground 1.
The State prosecutor had Mr Job look at certain cheque book butts. By reference to those he confirmed that cheque butt no 98 dated 13 February 2002 had the word "computer" written on it in his wife's handwriting and there was no writing of the complainant's on it. He acknowledged cheque butt dated 10 February 2003, for the piano, had been indorsed by the complainant. The cross‑examination then continued (t/s 422 ‑ 424):
"At any time prior to appearing at the Guardianship Board in September 2003, did you look at those cheque books?‑‑‑I don't think I actually looked at the cheque books, no.
Did you have an understanding that the situation was that [the complainant] had endorsed, in some manner, the cheque for the - the cheque butt relating to the piano?‑‑‑Yes, I did.
And did you have an understanding that she had not endorsed the cheque butt relating to the computer?‑‑‑That's right, because it's all on the first butt. She just endorsed the one butt.
And you had an understanding, come the time of the Guardianship Board hearing, that that was the case?‑‑‑Yes, that there was only one cheque endorsed, yes.
Yes. You accept though that when you gave your evidence to the Guardianship Board, what you told them in relation to the purchase of the piano and the computer was this, after you were asked a question by the member, 'No, she signed the actual butts and knew what the purpose,' and then the presiding member said, 'For both of those cheques?' and you said to him in your evidence, 'For both of those cheques.' He then repeated, 'So her signature is on the butt of both those cheques?' and you told him, 'Yes.' Do you accept that you told that to the presiding member?‑‑‑Yes.
In circumstances where you also say that you knew that that wasn't in fact true?‑‑‑I knew that both items were mentioned on the first butt and that was why I ‑ ‑ ‑
What you told the presiding member in no uncertain terms was that both cheque butts had been endorsed by her, didn't you? That's the way I may have put it, but I realised it was all written on the one butt. The endorsement for both items was ‑ ‑ ‑
Well, if you realised that, why did you say she signed the actual butts and then why, following that in answer to the presiding member, did you say 'for both of those cheques'? And why further, in response to his question, 'So her signature is on the butt of both those cheques?' did you say, 'Yes'?‑‑‑An oversight by me because of realising that she had endorsed the one butt for both items.
Repeated in effect three times in a row in answer to the presiding member's questions. Is that right?‑‑‑Yeah, that's right.
The question is so specific; he asked, 'So her signature is on the butt of both those cheques.' I suggest to you what you were doing was trying, regardless of the truth of the matter, to make the situation look more favourable for yourself and you weren't telling him the truth?‑‑‑No. I was telling the truth. I may have - my view was that she had given permission for both items when she signed this butt, and that's my attitude."
I return now to the grounds of appeal.
Ground 1 - Direction relating to statements before the Guardianship Board
The central submission on this ground is founded on a passage from the judgment of Gibbs J in Driscoll v The Queen (1977) 137 CLR 517 at 536, in which his Honour explained that the correct direction to a jury addresses two different questions which arise when a witness is shown to have made a previous statement inconsistent with the evidence given by the witness at trial. The first is as to the use to which the previous statement may be put, and the second is as to the effect of the previous statement and the value of the testimony given by the witness. The appellant relies particularly on the statement by his Honour with respect to the first, that:
"Since the jury, if uninstructed, are not likely to be aware of the limited use to which the previous statement may be put, it is essential that this should be made clear to them by the trial judge."
Here, the trial Judge did deal with the question of inconsistent statements as going to the credibility of the testimony of the witness. However, her Honour made no mention of the limited use the jury could make of the contents of the appellant's prior inconsistent statements. It is further submitted that nor did her Honour stress that the evidence of the appellant in each instance was what was said in court and not any out of court statement unless it was accepted by the particular appellant to be the truth.
It is further submitted that there was an additional prejudice to the appellants in that the State prosecutor erroneously referred to what they said before the Guardianship Board as being "evidence". It is said this suggested to the jury the appellant's had given sworn testimony before the Board, which had not been so - their accounts in that forum were not given under oath.
The submission finally is that given the significance of the prior inconsistent statements adduced under cross‑examination and the fact they related to material issues to the defence, "very careful and very precise" instructions should have been given to the jury. As that did not happen, there was a miscarriage of justice.
There is no evidence on the point whether what the appellants said before the Board was on oath or not; that is simply asserted. However, as the assertion is not challenged by the respondent, I will assume it to be correct.
The principle articulated in Driscoll concerning the two questions which arise in relation to prior inconsistent statements made by a witness is clear enough. But it is not absolute. What directions must, or should, be given in a particular case turns upon what issues of law and fact arise in the particular case and what directions are necessary to enable the jury to identify the issues, to make the findings of fact they are required to make, and to apply the relevant law to those facts.
The High Court explained in Alford v Magee (1952) 85 CLR 437, 466, that it is not sufficient for a trial Judge to explain the law to the jury in general terms and then leave it to them to apply it to the case before them. The Judge must explain the law with reference to the facts of the particular case and an explanation of how it applies to those facts. However, the only law it is necessary for the jury to know is that which must guide them to a decision on the real issue or issues in the case (ibid).
The submission that a failure by a trial Judge to give "very careful and very precise" directions to a jury on the use of inconsistent statements where they go to significant issues in the case can result in a miscarriage of justice is based on R v Schmahl [1965] VR 745, 747. The submission may be accepted as a general proposition, but that does not determine its application in the particular case. It is not difficult to understand why a failure to direct on the point was held in Schmahl to have resulted in a miscarriage of justice.
In that case the appeal was a retrial. The charge was one of obtaining by false pretences. The principal Crown witness gave evidence at the first trial and at the retrial. His evidence on the retrial about the making of the relevant representations was significantly different from that which he had given at the first trial. The inconsistencies were capable of having an important bearing on whether the representations had been made, and if so, whether the witness had been induced by them (per Winneke CJ at 747). Although the trial Judge referred to the inconsistencies in his overview of the evidence, he did not instruct the jury on the manner in which they should be used for the determination of the issues before them, and he did not relate those inconsistencies appearing from the evidence given by the witness at the first trial, to that given by him on the retrial. Nor did his Honour instruct the jury as to how the inconsistencies might be used in determining whether the representations had been made, and if so, whether the witness had been induced by them.
As Winneke CJ (with whom Sholl and Pape JJ agreed) observed at 748, the inconsistencies had a two‑fold application in that case. First, they were obviously capable of being used to discredit the witness concerning the making of the representations and his inducement by them. Secondly, they were capable of being used to support the defence that the representations were not in fact made, or if they were, the witness was not induced by them. The Chief Justice concluded that the failure of the trial Judge to instruct the jury how to relate the evidence to the precise issues for their determination resulted in an important part of the defence not being adequately put before them. It was that which resulted in a miscarriage of justice.
In Driscoll itself, the applicant had been convicted of murder. The victim had been shot twice in the head by bullets fired from a machine pistol. There were a number of grounds of appeal. That which is pertinent here, concerned evidence given by a Mrs D, who had been in a relationship with the deceased. Mrs D had made a statement to the police in which she said that on the day of the murder the applicant had said certain things to her which tended to implicate him in the killing. When called as a prosecution witness she was declared hostile and was cross‑examined. She denied she had made the statement to police and did not admit the applicant had made those remarks to her.
The trial Judge instructed the jury that they could act only on evidence given in court, and that a prior inconsistent statement was not evidence in the trial, but could only be used to weaken the effect of the witness' testimony in court. He did not tell the jury that they should regard Mrs D's evidence as unreliable. It was this last aspect which was claimed to be a misdirection, based on the following passage from the judgment of the Court of Criminal Appeal in R v Golder, Jones & Porritt (1960) 45 Cr App R 5 at 11:
"In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act."
It was in relation to that passage that Gibbs J said what he did at page 536 ‑ 537 of Driscoll:
"In that passage the Court of Criminal Appeal was dealing succinctly with the proper direction to be given in relation to the two different questions that arise when a witness is shown to have made a previous statement inconsistent with the evidence given by that witness at the trial. The first is as to the use to which the statement previously made out of court may be put, and the second is as to the effect of the previous statement on the value of the testimony given by the witness in court. As to the first of these questions it is clearly settled that the previous statement is admitted merely on the issue of credibility, and is not evidence of the truth of the matters stated in it: Taylor v The King (1918) 25 CLR 573; Deacon v The King [1947] 3 DLR 772; and Reg v Pearson [1964] Qd R 471. Since the jury, if uninstructed, are not likely to be aware of the limited use to which the previous statement may be put, it is essential that this should be made clear to them by the trial judge. As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable. The statement to that effect in Reg v Golder, Jones and Porritt (1960) 45 Cr App R, at p 11 was obiter, because in that case the trial judge had in fact warned the jury that the evidence was unreliable and the Court of Criminal Appeal was concerned only with the judge's failure to direct the jury that they could not act on the unsworn statement. Although what was said in Reg v Golder, Jones and Porritt has since been cited with approval (see Reg v Oliva [1965] 1 WLR 1028, at pp 1036‑1037; [1965] 3 All ER 115, at p 123), it cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable."
The point at issue there was whether the law required that a jury always be directed that a witness who has made a previous inconsistent statement should be treated as unreliable. Gibbs J (Barwick CJ, Mason, Jacobs and Murphy JJ concurring on this) held there was no such requirement.
His Honour went on to say (at 537) that in the case before the court it was necessary to warn the jury they could not treat Mrs D's previous statement as evidence. The trial Judge had given a warning to that effect. The previous statement was more damaging to the applicant than the evidence which Mrs D gave in court and in the circumstances it was not essential the jury be directed that her evidence should be regarded as unreliable.
What may be noted about his Honour's judgment is his acknowledgment that it is not invariably the case that a direction must be given. Of course, his Honour was there referring to a direction concerning the effect of the prior inconsistent statement on the reliability of the witness' testimony, but there is no reason in principle why the same considerations should not operate in relation to the prior inconsistent statement not being evidence of the truth of what was contained in it.
It is clear that whether a direction on both limbs of the use of prior inconsistent statement (or at all) is required in an individual case will depend upon all the circumstances of the case, including in particular the nature of the inconsistent statements. That was recognised by the Full Court of the Federal Court of Australia in Sorgenfrie v The Queen (1981) 51 FLR 147.
There the appellant had been convicted of assault occasioning actual bodily harm. The complainant and a female friend had been cross‑examined on what they had said in their statements to police. Some details of the description of the assault they gave in evidence at trial were not in their police statements. It was said these were inconsistencies which called for a direction in accordance with Driscoll, namely that the evidence of the two witnesses should be treated with caution because they had each been shown to have made previous statements inconsistent with evidence given at the trial.
The Court (Bowen CJ, Smithers and Fisher JJ) identified the question before them as being whether, in order to ensure a fair trial, it was necessary for the trial Judge to have given such a warning.
They noted (at 153) that in his judgment in Driscoll, Gibbs J had indicated differing circumstances in which warnings might or might not be warranted, thereby acknowledging that the need for the warning would depend upon the circumstances of the particular trial.
The court concluded it was not necessary for the trial Judge to give a warning on credibility having regard to alleged prior inconsistent statements. They explained (at 154 ‑ 155):
"Matters which persuade us to the contrary are that the case was relatively simple, the hearing was complete within two days, the issues were few and the evidence limited. Moreover, the inconsistencies were not flat contradictions, were drawn to the notice of the jury by counsel for at least one of the defendants in his address and related primarily to peripheral and not crucial issues. In particular, in many instances the issues in respect of which the inconsistencies arose were corroborated by other witnesses."
The expression "very careful and very precise" applied to the instruction to be given to a jury in respect of a prior inconsistent statement comes from the judgment of Deane, Toohey and Gaudron JJ in Morris v The Queen (1987) 163 CLR 454 at 469. However, the High Court was there dealing with the prior inconsistent statement of a witness, Mr Doniger, admitted into evidence pursuant to s 101 of the Evidence Act 1977 (Qld). By s 101 of that Act, a previous inconsistent statement of a witness was rendered admissible as evidence of any fact stated therein of which direct oral evidence by the witness would be admissible. Section 102 set out a number of factors to be taken into account in assessing the weight, if any, to be given to any such statement.
Their Honours observed (at 468 - 469) that the receipt into evidence of a prior inconsistent statement as evidence of the facts contained in it poses particular problems in a criminal trial, especially where the statement is more damaging to an accused than is the testimony of the witness. If such a statement is admitted, their Honours said:
"[I]t will usually be necessary for the trial Judge to give very careful and very precise instructions to a jury as to the weight the evidence should be given. The nature of the instructions will necessarily depend upon the particular case."
After referring to Driscoll, their Honours said (at 470) that it must have been obvious to the jury that Doniger's evidence was inherently unreliable. The jury were warned as to "the obvious problems of credibility" and were twice reminded that the Crown was not relying upon his evidence. They were told they were not free to ignore the evidence but were required to look at it and decide whether it was so unreliable that it should be put out of mind or whether some part of it might provide assistance in reaching a correct verdict. Their Honours were not persuaded there was substance in the submissions directed to establishing the inadequacy of the warnings given by the trial Judge in relation to Doniger's evidence. (Condren (1990) 49 A Crim R 79, 88 is another example of a prior inconsistent statement of a witness being relied upon as evidence of the truth and the directions called for in that context.)
In her summing‑up in the instant case, her Honour described the way the prosecution put this aspect of its case as follows (t/s 464 ‑ 465):
"The prosecution also say that the responses to Helen Job in particular in relation to the information that was given to the Guardianship board and the comment on page - the last page of exhibit 24 when it talks about the $1300 as being funds with [the complainant's] knowledge, used to help with the installation of airconditioner, agreement was for this to be repaid with funds from fees paid to Jobs for work done throughout the year, is inconsistent with their evidence in court that that was a donation and it was also pointed out that, and Helen Job agreed in her cross‑examination, that before the Guardianship Board she said that there was a similar arrangement in relation to the $605 which the prosecution say is quite inconsistent with the evidence that she has given in court that that money was, in fact, going to be repaid by Lyn Mills and wasn't somehow going to be set off in some way against any moneys owed to them.
The prosecution say that you can draw inferences from these matters, the inconsistency in the arrangement given their duties under the EBA and the obligations which they clearly recognised in their evidence and the inconsistencies and confusion that the prosecution say that attended their responses in relation to the details of the loan agreement they say they entered into or arranged with [the complainant]. The prosecution, in effect, say that their evidence about the loan agreement has transparently been reconstructed once they realised that other people would be inquiring into what had been happening in relation to the bank accounts."
Later, the only explicit direction given about the use of the prior inconsistent statements was (at 467):
"Importantly, of course, you look at what they say in relation to other matters. You look at what they say in relation to what perhaps might have been said at another occasion. Is there an inconsistency? Is this a minor detail or is it a significant inconsistency that causes you to have a particular view about a witness's credibility on a particular matter? You also look at what fits, what makes sense. That's just another factor that you take into account."
The prior statements of the appellants to the Guardianship Board were not relied upon either by them or the State as proof of the truth. The State put them to attack the credibility of the evidence given by the appellants at trial, contending indeed, that what they said to the Board was not true and that nor was what they said in evidence at trial. The appellants themselves in respect of some points said what they had told the Board was true (in which instances that became their evidence at the trial and could, if the jury accepted it, be acted upon) and in other respects, they conceded what they had told the Board was either wrong or not true. The result could only have been that the only way in which the jury could have used the prior inconsistent statements made to the Board was as reflecting adversely on the reliability of the appellants' testimony at trial.
In relation to the $605 given to Mrs Mills for her valuation, Mrs Job's evidence at trial was that the arrangement had always been that the complainant was to be repaid that. In cross‑examination it was put to her she had told the Board that the complainant was not to be paid back at all, but that the money was in effect part of the reimbursement of the Jobs for their own expenses in providing work for the complainant. The prosecution case on this was that neither account was true. The complainant maintained she was never told anything about a loan to Mrs Mills and knew nothing about it. The prior inconsistent statements could only have gone to Mrs Job's credibility.
Likewise, when Mrs Job testified the agreement they had with the complainant was that they would be paid $2500 at the end of the year, it was put to her that she had told the Board they were to be paid $50 a week, in addition to payment for particular services. It was further put to her (and she accepted) that she had told the Board the two payments, one for the valuation and one for the church airconditioner, were in substitution for $2000 worth of $50 weekly payments. Again, this was not put to her on the basis that what had been said earlier was true - and indeed she said it was not - but in pursuance of the State case that neither account was true. The same applies to Mrs Job's cross‑examination on what she had said to the Board specifically about the $1300 for the airconditioner (t/s 354).
So too, the cross‑examination of Mrs Job about the document she had prepared for and produced to the Board itemising what she had there claimed were amounts owing to her and her husband by the complainant, was conducted not to show that was true, but on the basis it was not true. On that matter, Mrs Job was apparently maintaining that what was in the document was a genuine list, so even if the jury were to have taken it as the truth, it could only have been to her benefit.
So far as Mr Job is concerned, the first aspect of his evidence raised in respect of this ground is his cross‑examination (at t/s 412 ‑ 413) on his evidence that on one occasion prior to the purchase of the piano he told the complainant on the phone it would cost "about $4000". He was then referred to his evidence before the Board that they had not spoken to her about an "actual figure of money" in relation to the computer and the piano, but had spoken to her specifically about the loans being for the computer and the piano. In the cross‑examination which followed, when it was put to him (t/s 413) that he had not said anything to the complainant about how much those items would cost before they made the purchases, his response was that there was a definite discussion about the cost of the computer, because he had a definite figure. He did not mention anything further about the piano at that stage. However, in re‑examination (t/s 425), when asked whether a specific or actual figure had been given to the complainant in his discussions with her about those purchases, his answer was "I don't believe so". In the end therefore, his evidence at trial on that point was the same as that which he had told the Board.
The next aspect of his evidence raised here is again that concerning the $1300. He reiterated that he was told that was going to be a donation. It was then put to him (t/s 414) that the position he represented to the Board was "different". He agreed that it was. However, what the difference was, was not identified. It would therefore not have been possible for the jury to have taken whatever he had said to the Board about that as the truth, because the jury did not know what he had said.
The final aspect of Mr Job's evidence relied upon in support of this ground concerns his cross‑examination (at t/s 422 ‑ 424) about the indorsements on the cheque butts. What was put to him about that was that he had told the Board the complainant had signed the butt for both of the cheques relating to the piano and the computer respectively. He agreed that he had said that, but said he was mistaken because she had noted both purchases on one butt. The butts were in evidence and the jury could see that for themselves. There was no question that the jury could have taken what he said to the Board to be the fact.
Counsel for the respondent concedes that the trial Judge did give a sufficient direction on that limb of the Driscoll direction going to use of the prior inconsistent statements in relation to credibility. For the reasons I have explained, this was a (perhaps rare) case in which there was no way the jury could have relied upon the prior inconsistent statements of the appellants as proof of the facts asserted in them, adversely to the appellants. In that circumstance, although it would have been desirable as a matter of prudence for the trial Judge to have given a full Driscoll direction, it was not required as a matter of law. That being so, no miscarriage of justice resulted from her Honour not giving the direction that the previous statements were not evidence of the facts asserted in them.
Given this conclusion, nothing turns on the proposition that the State prosecutor characterised what the appellants had said before the Board as "evidence".
This ground must fail.
Ground 2 - Uncorroborated evidence of complainant - failure to give warning
The basis of this ground is set out in the particulars.
It was not in dispute that the complainant was a diagnosed schizophrenic at the time of the events the subject of the indictment. She was still taking medication and receiving treatment at the time she gave her evidence. Nor was it disputed that it was the complainant's inability to independently manage her financial affairs due to her mental disability which led to the appellants being appointed her attorneys.
At trial, the complainant was declared a special witness due to her mental condition and was permitted to give evidence by CCTV and to have a support person present.
The submission advanced on behalf of the appellants is that given the subject matter of the trial and the mental illness from which the complainant suffers, she was a witness who was potentially unreliable and therefore a specific direction was required from the trial Judge to that effect. As her Honour did not give any such direction addressing "the potential unreliability of the complainant's evidence" and as her evidence was uncorroborated, it is submitted the trial miscarried.
The appellant relies upon Bromley v The Queen (1986) 161 CLR 315 and in particular the following passage from the judgment of Gibbs CJ (Mason, Wilson and Dawson JJ concurring):
"If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case." (My emphasis)
In Bromley the applicants had been convicted of the murder of D. The Crown case was that the applicants and one Gary Carter went with D to a place on the Torrens River, where the applicants attacked and killed him. Carter was present and was called by the Crown to give eyewitness evidence. He was a diagnosed schizophrenic and on the night in question, after the murder, he had had an episode of that illness and was admitted to a mental hospital. It was clear that his evidence was inaccurate in some matters of detail. On appeal it was argued that the fact Carter was a schizophrenic made his evidence so inherently unreliable that it was necessary for the trial Judge to direct them it would be dangerous to act on it unless it was corroborated. Gibbs CJ rejected that proposition, holding (at 319) that what is required in a case where the evidence of a witness may be potentially unreliable, is that the jury must be made aware, in words which meet the justice of a particular case, of the dangers of convicting on such evidence.
His Honour went on to observe that in that case the danger that Carter might be an unreliable witness must have been apparent to the jury after particulars of the effect of his schizophrenia had been elicited in cross‑examination - for example, he said he thought that he had seen the devil. The trial Judge had given a direction drawing the jury's attention to Carter's mental condition and cautioning them about acting on it where it was not supported by other evidence. The High Court held the direction had been sufficient.
Bromley does not establish any requirement that in every case in which an important witness has some mental disability or illness, a warning of the kind sought here must be given. The critical factor is the existence of a disability, illness or condition which may affect the witness' capacity to give reliable evidence, in circumstances in which a lay juror might not understand why the evidence of the witness was potentially unreliable.
Those factors are not apparent here. There was no evidence, expert nor otherwise, which showed any lack of capacity on the part of the complainant to give reliable evidence. The mere fact that she suffered, and still suffers from schizophrenia and depression says nothing about that. In addition, the evidence was that her condition was ameliorated by
continuing medication. There was nothing to suggest her capacity to give reliable evidence was affected or diminished. In short, no need for a direction of this kind has been shown.
This ground must fail.
Conclusion
I would dismiss each appeal.
McLURE JA: I have read the reasons for judgment of Roberts‑Smith JA. I agree that the appeal should be dismissed.
Ground 1
In their first ground of appeal the appellants contend the learned trial Judge erred in failing to properly direct the jury as to the use it could make of prior inconsistent statements they had made to the Guardianship and Administration Board ("Board").
Prior inconsistent out of court statements can in appropriate circumstances be relevant and admissible as evidence of a fact in issue. For example, an out of court admission against interest is admitted as evidence of the truth of the statement notwithstanding that it is also inconsistent with the accused's evidence. A prior inconsistent statement may be relevant to both a fact in issue and credibility. A prior inconsistent statement that is not relevant and admissible to prove a fact in issue is only admissible on the question of credit. When the use to which the jury can put a prior inconsistent statement is confined to credit, it is ordinarily necessary to direct the jury that the statement is admitted merely on the issue of credibility and is not evidence of the truth of the matters stated in it: Driscoll v The Queen (1977) 137 CLR 517 at 536.
The ground of appeal needs to be addressed in the context of the relevant evidence. The appellants were jointly charged with four counts of stealing money belonging to the complainant. At the material times, the appellants were the complainant's attorney under an enduring power of attorney. Count 1 concerned the sum of $605 which was used by the appellants to pay for a valuation of property belonging to a third party. Count 2 concerned the sum of $4650 which was used by the appellants to purchase a piano for their daughter. Count 3 concerned the sum of $2175 that the appellants used for the purchase of a computer for themselves. Count 4 concerned the sum of $1300 which was used to pay for the installation of airconditioning in the local Anglican Church. All the
amounts were paid by cheques signed by the appellants and drawn on the complainant's account.
The complainant gave evidence that the payments were unauthorised. The appellants' evidence was that the complainant had given them the authority to use the funds for the stated purposes. Prior to trial, the appellants had made unsworn statements to the Board that were inconsistent with aspects of their evidence at trial. The inconsistencies are as follows. I start with Mr Job.
As to count 2, Mr Job gave evidence that the complainant was aware from conversations she had with him that the cost of the piano was going to be in the region of $4000. Mr Job had stated to the Board that there was no discussion with the complainant "about an actual figure of money" for the purchase of the piano. In re‑examination Mr Job confirmed that he had spoken to the complainant about the purchase of the piano (and the computer) but said he did not believe specific figures were discussed. Mr Job in effect confirmed the truth of the statement he made to the Board. That being the case, it is evidence of the truth of the matters the subject of the statement.
As to count 4, Mr Job's evidence at trial was that the sum of $1300 was a donation by the complainant to the church. In cross‑examination he denied that he considered it to be an amount that was going to be written off against money owed to the appellants by the complainant. Mr Job had informed the Board that his understanding was that the amount would in effect be written off against moneys owed to the appellants.
In relation to counts 2 and 3, Mr Job's evidence at trial was that one cheque butt was endorsed by the complainant for both the piano and computer. Mr Job had said to the Board that the complainant had endorsed two butts, one for each of the piano and computer.
The relevant inconsistencies in Mrs Job's evidence were in relation to counts 1 and 4. As to count 1, Mrs Job said in cross‑examination that the arrangement between the appellants and the complainant was that the amount of $605 would be repaid to the complainant. Mrs Job had stated to the Board that the complainant was not going to be repaid and that the amount was part of a reimbursement for the appellants' expenses in providing work for the complainant.
As to count 4, Mrs Job confirmed in cross‑examination that the complainant had agreed to donate the amount of $1300 to the church and that the amount was not in lieu of moneys owed to the appellants. Mrs Job had stated to the Board that the payment was in lieu of moneys owed by the complainant to the appellants.
The out of court statements made by the appellants to the Board were exculpatory in content rather than admissions against interest. It was clear from the prosecution's cross‑examination of the appellants that there was no suggestion the out of court statements were true. The clear and obvious purpose of the questioning was to impugn the credibility of the evidence they had given at trial. Further, with one exception, the appellants disavowed the accuracy of their inconsistent statements to the Board.
The trial Judge did not expressly state that the prior inconsistent statements were only relevant to credit. To have done so would have been factually inaccurate. The prosecution relied on at least one of the inconsistencies as being relevant to a fact in issue (the complainant's knowledge of the appellants' conduct). As appears from the summing up, the prosecution case was that the admitted inconsistencies between what the appellants told the Board and their evidence in Court could, together with other evidence, support an inference that the complainant did not authorise or consent to the expenditure the subject of count 4. On that count the trial Judge directed the jury as follows:
"The prosecution invite you to draw an inference that the different accounts [to the Board and to the Court] suggest that there was no knowledge on the part of [the complainant] in relation to that item, and that the different account[s] indicate an attempt on the part of the [appellants] to cover themselves or to put themselves in a better position in relation to the Guardianship Board inquiry, or any other inquiry or questions in relation to that amount of money."
However, it appears most of the inconsistent statements were relied on by the prosecution as being relevant only to credit.
I turn now to the trial Judge's directions. The trial Judge directed the jury that they had to determine the facts based solely on the evidence that they had heard from the witnesses when they were in the witness box and the exhibits tendered at trial. It was also made clear by the trial Judge that the central issue of the complainant's knowledge and approval of the transactions raised credibility questions. The trial Judge referred to the case for the prosecution, which was to the effect that the payments were made without the complainant's consent, knowledge or permission and the defence case which was that everything was done with the complainant's consent, authority and permission. She continued:
"You have to decide that issue bearing in mind of course that the prosecution have to prove it and prove it beyond a reasonable doubt, but obviously the question of credibility of the witnesses will be significant in this case." (Emphasis added)
Shortly thereafter the trial Judge referred to inconsistencies. She said:
"Importantly, of course, you look at what they say in relation to other matters. You look at what they say in relation to what perhaps might have been said at another occasion. Is there an inconsistency? Is this a minor detail or is it a significant inconsistency that causes you to have a particular view about a witness's credibility on a particular matter? You also look at what fits, what makes sense. That’s just another factor that you take into account."
The trial Judge also deals with the prosecution's submissions on the credibility of the complainant and then separately with the credibility of the appellants. Included in the analysis of the credibility of the appellants is reference to the inconsistencies between what they told the Board and their evidence at trial.
It is apparent from the above that the jury could have been in no doubt that the prior inconsistent statements were relevant to the appellants' credibility. It is the case that the trial Judge did not direct the jury that the prior inconsistent statements were not evidence of the truth of what was stated. However, it follows from the way the prosecution conducted its case, the exculpatory content of what the appellants told the Board and the appellants' evidence at trial that there was no real possibility of the jury misusing the out of court statements as evidence of their truth. The isolated reference to the statements to the Board as "evidence" does not alter that assessment. Even if the statements were regarded as evidence of the truth of the facts stated, in the unusual circumstances of this case it could occasion no prejudice to the appellants. I would dismiss ground 1.
Ground 2
The appellants contended the trial Judge erred in failing to warn the jury of the danger of convicting the appellants on the evidence of the complainant unless it was confirmed by other evidence. The appellants
rely on Bromley v The Queen (1986) 161 CLR 315. The starting point in this jurisdiction must be s 50 of the Evidence Act 1906 (WA). Section 50(2) provides:
"(2) On the trial of a person on indictment for an offence —
(a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."
A corroboration warning is defined as a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness (s 50(1)).
I am not satisfied that a warning was justified in the circumstances. The complainant had a mild form of schizophrenia for which she was medicated. She also suffered from depression. The evidence clearly established that the disabilities impacted on the complainant's capacity to manage her financial affairs. However, there was nothing in the evidence or anything apparent from a judge's trial experience to support a properly grounded possibility that it was dangerous to rely on the complainant's evidence. Moreover, all the matters on which the appellants rely in support of the possible unreliability of the complainant's evidence were equally obvious to the jury who were in as good a position as the trial Judge to assess whether her disabilities impacted on her reliability. The trial Judge did not err in failing to give a warning. I would dismiss ground 2 and the appeal.
BUSS JA: I agree with McLure JA, for the reasons she gives, that each of the grounds of appeal is without merit. I would dismiss the appeal.
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