Mullally v The Queen

[2002] WASCA 359

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   MULLALLY -v- THE QUEEN [2002] WASCA 359

CORAM:   PARKER J

HASLUCK J
OLSSON AUJ

HEARD:   5 DECEMBER 2002

DELIVERED          :   20 DECEMBER 2002

FILE NO/S:   CCA 227 of 1999

BETWEEN:   PATRICK EDWARD MULLALLY

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction - Stealing by unlawfully appropriating trust funds to satisfy costs - Whether inadmissible unsigned file copy of letter should have been excluded in exercise of discretion - Effect of inappropriate admission of copy letter - Application of proviso to s 689(1) Criminal Code

Legislation:

Criminal Code, s 689(1)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr B Fiannaca

Solicitors:

Appellant:     In person

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Doggett v The Queen (2001) 182 ALR 1

Mullally v The Queen [2001] WASCA 258

Case(s) also cited:

Jones v The Queen (1997) 191 CLR 439

M v The Queen (1994) 181 CLR 487

1. PARKER J:  For the reasons published by Olsson AUJ I agree that this appeal should be dismissed.

2. HASLUCK J:  I have had the advantage of reading the reasons for judgment of Olsson AUJ.  I agree with those reasons and would dismiss the appeal.  I have nothing to add.

   OLSSON AUJ: 

Introduction

1. The matter now before the Court has had a lengthy history.

2. On 21 October 1999 the 2 years' imprisonment with eligibility for parole.  He was released on parole on 23 June 2000 and has now satisfied the whole of his sentence obligation.

3. The appellant filed a notice of appeal against his conviction on 4 November 1999.  This contained numerous grounds.  On or about 31 July 2000, only a few days before the date on which the appeal was listed for hearing, he filed a notice of abandonment of it.  By virtue of the Criminal Practice Rules this produced the result that the appeal was deemed to have been dismissed.

4. On or about 12 February 2001 the appellant made application to the Court of Criminal Appeal for leave to withdraw his notice of abandonment.  He also sought an extension of time within which to appeal.  It was intimated that, at that stage, he desired to prosecute two only of the original 17 grounds of appeal.

5. For reasons published on 28 August 2001 (Mullally v The Queen [2001] WASCA 258), the Court of Criminal Appeal granted the appellant leave to withdraw his notice of abandonment. The original appeal now comes before that Court, as presently constituted, for hearing.

The charge and residual grounds of appeal

1. The indictment against the appellant alleged that, between 2 December 1992 and 31 December 1993 at Subiaco, he stole the sum of

$26,678.23 in money, the property of Boltrans Nominees Pty Ltd (receiver and manager appointed) trading as New England Freight Lines ("Boltrans"), being the amount of a general deficiency.

1. The essence of that charge was that, as a practising solicitor in sole practice, the appellant received a series of cheques payable to Boltrans into his trust account, well appreciating that the receiver and manager of Boltrans was entitled to the moneys in question, and, without authority to do so, applied the above sum from these moneys for his own personal use - in the sense that he applied it towards payment of legal costs said to be due to him by a Mr Bolger, one of two directors and shareholders of Boltrans.

2. In his notice of appeal the appellant sought to complain of many aspects of the case against him and the trial process.  However, it is unnecessary, for present purposes, to recite these.

3. The matters which he now seeks to ventilate are twofold, namely:

   (1)that the learned trial Judge erred in law when she admitted into evidence what appears to be a draft, unsigned letter dated 8 December 1992, (said to have been sent from the appellant to the Department of Social Security) which was inadmissible, or, at any event, ought to have been excluded as a matter of discretion; and

   (2)that, having regard to all of the evidence, the verdict of the jury was unreasonable and/or could not be supported having regard to the evidence and therefore, pursuant to s 689(1) of the Criminal Code, should be set aside.

The relevant facts

1. For the most part the relevant narrative facts were common ground.

2. Boltrans was owned by the witnesses Neville and Rosemary Bolger, in the sense that they were the sole directors and shareholders of it.  That entity was primarily a transport company which traded under the name "New England Freight Lines".

3. Neville Bolger had a "hands on" role in the conduct of the transport business.  He personally drove trucks and appears to have generally managed business operations.

4. In 1992 Mr Bolger had a bad accident.  He was seriously injured in circumstances which did not attract any insurance cover.  He was incapacitated for work for a lengthy period, as a consequence of which the business of Boltrans was adversely affected.

5. At the time Boltrans had procured a loan from the Commonwealth Bank, which was secured by a form of charge by way of equitable mortgage over the undertaking, property and assets of the company.

6. Boltrans experienced difficulty in meeting its financial obligations as they fell due, with the result that, on or about 13 October 1992, the Commonwealth Bank appointed one Herbert as receiver and manager of Boltrans, in exercise of its powers under the equitable mortgage.

7. Mr Bolger considered this unwarranted.  He consulted the appellant to seek his assistance in solving the problem and attempting to have the action of the Bank reversed.  It appears that the appellant did act for the Bolgers from about 30 November 1992 until some time early in 1994.  Inter alia, he initiated proceedings in this Court against the Commonwealth Bank.  The matter was taken over by a Peter Whyte, who acquired the appellant's practice at about that time.

8. The business of New England Freight Lines was, at the time, operated from a depot in Maddington.  When invoices were sent out to customers, cheques in payment of them were often sent either to a post office box controlled by the Bolgers or to their home address, rather than the depot.  Not infrequently, cheques were received 60 or 90 days after invoice.  This continued after the receiver and manager was appointed and took over the Boltrans depot.

9. About half a dozen such cheques were received by Mr Bolger subsequent to 13 October 1992.  Although the receiver and manager was plainly entitled to these cheques in terms of the equitable mortgage, Mr Bolger took or sent them to the appellant.

10. Details of the cheques were:

    Diamond Salt Pty Ltd  $  5240.40

    Auto Trans Express (1990) Pty Ltd                $    600.00

    Freight Specialists of Australia Pty Ltd           $17160.00

    Government of Western Australia                  $    115.05

    Diamond Salt Pty Ltd  $  3264.00

    Commonwealth Government  $    298.78

11. The appellant advised Mr Bolger that the cheques should be paid into his trust account.  They were in fact paid to the credit of that account.

12. For the sake of completeness it should also be said that, when Mr Bolger first consulted the appellant, there was some discussion concerning costs.  In the result, Mr Bolger paid to him a sum in excess of $3000 "up front" on account of costs.  No formal bill of costs was ever rendered by the appellant to Mr Bolger.

13. There is no doubt that the appellant did do quite an amount of legal work pursuant to his retainer, which was ultimately carried to a successful conclusion, apropos the Commonwealth Bank, by Whyte.

14. However, not only was no formal bill of costs ever rendered by the appellant to Mr Bolger, but also, some time during 1993, without any authority to do so from either Mr Herbert or, for that matter, Mr Bolger, he appropriated the proceeds of all of the above cheques for his own personal use.

15. Mr Bolger gave evidence to the effect that, when, in April 1994, he became aware that Whyte had taken over the appellant's practice, he enquired of Whyte as to the state of the trust account.  This elicited a letter dated 14 July 1994, written by the appellant, to the Bolgers indicating that there was a nil balance in the trust account.  The letter stated that funds had been "deducted from Trust to meet the accounts" for work done.  It enclosed a copy of a trust ledger sheet showing the following details:

    "PATRICK MULLALLY & CO TRUST ACCOUNT LEDGER SHEET

    BOLGER & BOLTANS re COMMONWEALTH BANK

    Date            Detail   Db               Cr

    2.12.92       Payments from book debtors  23,115.45

    13.1.93       Payment from Bolger   3,562.78

    2.12.92       Sp Ct Fee   265.20

    11.12.92      Sp Ct Fee   265.20

    24.12.92      T/F Legal  5,000.00

    12.1.93       T/F Legal   600.00

    31.3.93       T/F Legal  9,000.00

    30.7.93       T/F Legal  3,000.00

    6.8.93         Pay Legal Costs  2,013.70

    13.8.93       Pay Legal Costs  3,000.00

    13.8.93       Pay Legal Costs  2,000.00

    31.12.93      Pay Legal Costs  1,534.13

    BALANCE  NIL            NIL"

16. Mr Bolger testified that he had never been consulted about these debits, nor had he ever received any account for work done.  He subsequently asked, repeatedly, for a detailed statement of account, which he did not receive until about 13 June 1995.

17. The cross‑examination of Mr Bolger focused on the fact that the appellant had done a great deal of work and had originally quoted an hourly rate to him.  He was also questioned on precisely what had been said to him when he took the cheques to the appellant and a variety of peripheral matters.  It was suggested to him that the appellant had never said that the cheques would be paid into the trust account.  Mr Bolger denied that suggestion.  Indeed, he said that the appellant had specifically advised him, several times, "that I was unable, according to law, to ever touch that money".  He specifically rejected a proposition that the cheques had been given to the appellant as security for costs.  It was never put to him that he had specifically sanctioned the making of any of the debits against the trust account.  The cross‑examination did not go beyond suggesting, in a general way, that the cheques had been handed over by way of security for costs.

18. During the cross‑examination of Mr Bolger he conceded that it was possible that he did not take all of the cheques into the appellant's office, as he originally thought he did.  It was possible that some had been posted to the appellant.  This evidence falls to be considered together with that of Mrs Bolger.  In the course of her testimony she accepted that she had sent some cheques to the appellant by mail - specifically some Government cheques.  Her memory was that her husband actually took other cheques in to the appellant's office "with other correspondence".

19. During her evidence there was produced to Mrs Bolger what was described as a "little note", which she agreed had been written and signed by her and sent to the appellant's office with some cheques.  The note read:

    "Please find enclosed cheques received on behalf of New England Freight Lines.  Thank you."

20. As a matter of logic, that note could only have emanated from the appellant's files.

21. The appellant elected not to give evidence.  The situation therefore remained as summarised above.

Disputed evidence

1. In the course of his evidence‑in‑chief, and without objection on the part of counsel for the appellant, Mr Bolger was shown what appears to be a file copy of a letter dated 8 December 1992 expressed to be written by the appellant and addressed to the Delegate of the Secretary, Department of Social Security.  It reads as follows:

   "PEM:6564:CL:jmr  GOS/NEWSTART

   8 December 1992

   The Delegate of the Secretary  Department of Social Security  PO BOX 303      GOSNELLS   WA   6100

   Fax [phone]

   Dear Sir,

   Re:NEVILLE W BOLGER - 14 TAMARINE WAY, SWAN VIEW REF No 603384568X

   We are the solicitors for Boltrans Nominees Pty Ltd.

   The Commonwealth Bank of Australia appointed a Receiver/Manager to our client company on the 29th October 1992.

   The applicant, Mr Neville W Bolger is a director of Boltrans Nominees Pty Ltd.

   Boltrans Nominees Pty Ltd is not in receipt of any funds, as all of these funds are claimed legally, by the Receiver on behalf of the Commonwealth Bank.

   The debt owing to the Commonwealth Bank is substantially in excess of any moneys to be received by the company and accordingly, there will be no distribution to either the company or to Mr Bolger.

   A dispute has arisen between Boltrans Nominees Pty Ltd and the Commonwealth Bank and the Receiver and Supreme Court action has been taken.

   As [sic] present and for the foreseeable future, Mr Bolger will not be in receipt of any distribution or funds of any sought [sic] whatsoever, or any property from his company.

   We trust that this explains the position with respect to this matter.

   Yours faithfully,

   PATRICK MULLALLY & CO"

2. On reading it, and in response to a leading question asked of him, also without objection, he accepted that he had instructed the appellant to write such a letter, although he had no independent memory of so doing until the copy was placed before him.  This related to a period when he was still recovering from the effects of his accident and had applied for social security benefits.

3. The Crown prosecutor applied to tender the document, notwithstanding that there was no evidence whatsoever as to its provenance.  Counsel for the appellant objected to the tender on the basis that the document was an unsigned letter, there was no evidence that it was actually even sent and no evidentiary basis had been established for its admission.

4. On some basis which, I must confess, escapes me, the prosecutor sought to argue that the document was admissible as a contemporaneous note made by the appellant as to instructions received by him.  The riposte of counsel for the appellant was that there was nothing to "sheet home" the document to his client.

5. The learned trial Judge pointed out that the document bore the appellant's initials, together with a file number and some other initials.  She ruled that the document was admissible, but did not express the precise basis of that ruling.  It became exhibit P8.  In her summing up she did not tell the jury how they could use the document.  She merely recited:

   "In his evidence, Mr Bolger could not recall receiving a later letter from the accused dated 13 June 1995 with detailed attachments as to accounts or costs of the accused's legal work.  He did say that exhibit P8, which is a letter dated 8 December 1992, addressed to the delegate of the secretary of the Department of Social Security, came into existence because he asked Mr Mullally to draft it on his behalf.  That document states that Patrick Mullally and Co are - or of course were at the time - Mr Bolger's solicitors and in paragraph 4 says:

   'Boltran [sic] Nominees Pty Ltd is not in receipt of any funds as all these funds are claimed legally by the receiver on behalf of the Commonwealth Bank.'

   That letter is not signed by the accused or anyone else and of course Mr Bolger could not say if it was ever sent or posted to its destination."

The issues on the appeal

1. The appellant contended that the learned trial Judge fell into error in admitting the copy letter, exhibit P8, and that this must have had a profound effect on the thinking of the jury.  He submitted that, absent any evidence of the provenance of the document, no proper foundation was ever laid for its admission and the learned trial Judge did not identify any.

2. Mr Fiannaca, of counsel for the Crown, sought to justify the tender on the basis that it simply evidenced the detail of Mr Bolger's resurrected memory and the transcript would have been meaningless without it. He also faintly argued that reliance could be placed on s 79C of the Evidence Act 1906, although he did not descend to detail as to the precise manner in which that section was applicable.  Certainly there was no

evidence to lay a foundation that, for example, it constituted a business record or, that prima facie, constituted any other basis for the application of the section.

1. All that need be said is that I cannot see any basis in law upon which the copy letter could be said to be properly admissible on the footing propounded by Mr Fiannaca.  True it is that, if a document encapsulates the detailed evidence of a witness or the evidence of a witness is unintelligible without reference to it, it may be convenient and permissible to mark it for identification for reference purposes.  But that is not to say that it can be tendered and relied upon as being of direct evidentiary value in its own right.  In the instant case even that course was inappropriate, because the placing of the document before the jury (by way of contrast with its use to refresh the memory of the witness) inevitably tended to accord it an apparent evidential status and weight which it did not possess.

2. The first ground of appeal has therefore been made out.

3. The appellant really relied on that ground as an important foundation for his more general ground of appeal that his conviction was unsafe and unsatisfactory.  He argued that, quite apart from the inherently prejudicial effect of allowing exhibit P8 to go before the jury, the shifting of ground by Mr Bolger on the topic of whether the relevant cheques were delivered or posted to the appellant necessarily infused a serious question mark into the situation - as to whether the Crown had proved beyond reasonable doubt that the appellant had appreciated that the cheques credited to the trust account were the property of the Bolgers or whether the receiver and manager of Boltrans was entitled to them.

4. In my opinion, this suggestion is quite unrealistic.

5. A review of the evidence before the jury reveals these features:

   •the appellant was an experienced corporate lawyer;

   •the dual reasons why the Bolgers initially consulted him were, first, to see what could be done to have the appointment of the receiver and manager reversed and, second, to ascertain what ought to be done in relation to cheques from book debtors of Boltrans still coming direct to the Bolgers;

   •it is clear, on the evidence as it finally stood, that some cheques were physically delivered to the appellant and some were posted to his office;

   •all of these cheques were, on the face of them, payable to the corporate body, of which Herbert had, to the appellant's knowledge, been appointed receiver and manager;

   •those which were posted to the appellant (or at least some of them) were accompanied by a note from Mrs Bolger which, on the face of it, unequivocally identified the relevant cheques as having been received on behalf of the corporate body.  This plainly came to the attention of the appellant, because it could only have come from his files;

   •the trust account ledger entries are specifically titled "Bolger & Boltrans re Commonwealth Bank" and the credit entries draw a clear distinction between a credit for moneys paid by Mr Bolger, on the one hand, and "Payments from book debtors", on the other;

   •there is not a scintilla of positive evidence to suggest that the Bolgers ever gave authority to the appellant to make any drawings against the trust account and he certainly did not, at any relevant time, render any account to them, or inform them that drawings had in fact been made;

   •whatever may be said concerning Mr Bolger's evidence, he remained steadfast as to two fundamental propositions, namely:

   (1)the appellant unequivocally told him, at the outset, that the proceeds of the cheques belonged to Herbert and that the Bolgers could not use these funds; and that

   (2)the cheques should be put into the appellant's trust account pending the resolution of the matters with Boltrans and the outcome of court proceedings.

6. It is stating the obvious to say that, given such a situation and absent the entry of the appellant into the witness box to give some positive exculpatory evidence, the Crown case against the appellant was overwhelming - quite apart from any considerations stemming from the disputed letter, exhibit P8.

1. The only issue on which the cross‑examiner made any impact on the Crown witnesses was that he was able to demonstrate that Mr Bolger's initial memory that all six cheques were physically taken to the appellant was faulty.  He readily conceded, when pressed, that some were posted - a fact confirmed by Mrs Bolger.

2. It is to be noted that she testified that she, personally, spoke to the appellant concerning the receipt of company cheques and he told her "just to send them in to him".  Significantly, she was never challenged as to this in cross‑examination, or as to the note sent with the cheques.

3. In all of the circumstances, it is impossible to see how it could reasonably be said that the verdict of the jury was other than well nigh inevitable.  I do not consider that the second ground of appeal has been made good.

4. In my opinion, whilst the appellant has demonstrated error in the admission of exhibit P8, it is impossible to see how this can be said to have resulted in a miscarriage of justice. The circumstances are a classic scenario attracting the application of the proviso to s 689(1) of the Criminal Code.  It cannot realistically be said that the error in question was such that the appellant was deprived of any real chance of acquittal.  The Crown case was, on any view, overwhelming (cf Doggett v The Queen (2001) 182 ALR 1 at 34).

5. I would dismiss the appeal.