Police v HCC
[2009] QMC 15
•28 July 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v HCC [2009] QMC 15
PARTIES:
POLICE
(prosecution)
v
HCC
(defendant)
FILE NO/S:
MAG185787/07(9)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
28 July 2009
DELIVERED AT:
Brisbane
HEARING DATE:
9 July 2009
MAGISTRATE:
Previtera T
ORDER:
That the defendant be committed for trial in the District Court on a charge pursuant to section 408C(1)(a)(i) of the Criminal Code (Qld)
CATCHWORDS:
CRIMINAL LAW – FRAUD – COMMITTAL PROCEEDING – sufficient evidence
Criminal Code Act 1899 (Qld), s 408C(1)(a)
COUNSEL:
Dennis for prosecution
P Davis SC for defendant
SOLICITORS:
Director of Public Prosecutions (Qld) for prosecution
Peter Russo Lawyers for the defendant
In this matter the Defendant is charged, pursuant to section 408C(1)(a)(ii) and (2)(c) and (2)(d) of the Criminal Code; that between 19 May 1999 and 2 January 2004 at Brisbane or elsewhere in the State of Queensland, he dishonestly applied to his own use property, namely a sum of money in his possession subject to a trust, direction or condition, on account of Elsie Jean Ashmore; and the yield to the Defendant from the dishonesty was of a value of more than $5 000.00.
Following an examination of witnesses on 9 July 2009, the defence submitted[1] that the defendant had no case to answer by reason of the Crown’s failure to adduce evidence to negative the issue, raised by the defendant in his records of interview with police,[2] that the complainant “Elsie” had provided specific consent to the application of certain sums by the defendant and a general consent to apply the moneys generally as he saw fit, pursuant to the Power of Attorney granted by Elsie to the defendant in 2000.
[1] See Exhibit 59.
[2] 25 September 2007; 9 October 2007; 10 October 2007
The Crown did not tender any evidence from the complainant Elsie as she was unavailable to give evidence due to deterioration in her mental condition as a result of Alzheimer’s disease.[3] There is no direct evidence from Elsie, therefore, to, in particular, refute the defendant’s assertions that she gave her consent for the defendant to apply the money as he in fact did.
[3] S 93A Criminal Code (Qld)
The Crown argues the existence of a circumstantial case against the defendant in reliance, in particular, upon the evidence it refers to in a document,[4] which, not surprisingly, defence counsel has referred to as a “helpful document.” Defence counsel’s written submissions[5] that the matters relied upon in the prosecutor’s document are either not supported by admissible evidence, are red herrings, irrelevant and/or tenuous are accepted. Why the prosecution submissions were not referable to the evidence of the forensic accountant Brett Jason Gordon and the lengthy and extensive records of interview by the defendant with police, and other relevant evidence raises yet again the question of the resources available to the Director of Public Prosecutions.
[4] Exhibit 60
[5] Paragraphs 24-34 of Defence written submissions Exhibit 59
Nonetheless, the Crown submits that a jury, properly instructed, could find the defendant guilty of the offence with which he is charged.[6] In order for there to be a committal of the defendant on such a charge, there must be sufficient evidence that there has been objective dishonesty by the defendant (that is, that what the defendant did was dishonest by the standards of ordinary honest people)[7] and that the defendant realised that what he did was dishonest by those standards,[8] such that a reasonable jury, properly instructed could return a verdict of guilty upon it.[9]
[6] See Exhibit 60
[7] Supreme and District Court Bench book No.112.1
[8] Supreme and District court Bench book No.112.1
[9] Purcell v. Vernardos (No.2) 1997 1 Qd R. 317
In reaching a decision as to whether or not the defendant should be committed for trial, the court has had regard to the following matters:
The Defendant and the Complainant’s daughter Lisa Jane Ashmore (“Jane”) met via online conferencing as external commerce students at Deakin University, Victoria in 1996 (when Lisa was residing with her parents in Perth and the defendant was residing in Brisbane). The defendant had completed a Bachelor of Laws degree and wanted to enrol in the Bar Practice Course in Brisbane, for which he asked Lisa for assistance to pay the course fees.
Thereafter, the defendant and Lisa met physically in 1998 in Sydney when the defendant asked Lisa to marry him. The defendant was employed at Cleary and Hoare solicitors specialising in taxation and estate planning,[10] and from there was employed by Nicholson’s solicitors, again specialising in taxation and estate planning.
[10] Paragraph 8 of Statement of Lisa Jane Ashmore (LJH)
During this period, the defendant, from Brisbane, made other requests of Lisa for financial assistance, with the result that Lisa, from Perth, paid monthly amounts on each of the defendant’s credit cards, made payments on his student loan, paid for the purchase and monthly payments on the defendant’s mobile phone as well as paying for clothes, a business watch and some of the defendant’s day to day living expenses[11].
[11] Statement of LJH.
At the end of 1998, the defendant flew to Perth and met Lisa’s parents, (the complainant Elsie and her husband, Oliver Ashmore). The defendant, unknown to Lisa, drafted a will for Oliver, in which the defendant was named as the sole executor. Lisa had no knowledge of the contents of Oliver’s will until after Oliver passed away in May 1999.
Oliver’s estate was bequeathed to Elsie and comprised the house in which Elsie and Oliver lived (and in which Elsie continued to live) and a vacant block of land. There was only $90.00 in a bank account and otherwise Elsie was reliant upon a Centrelink pension and Lisa for financial support.
Probate of Oliver’s will was granted on 20 August 1999, unknown to Lisa until many years later.[12]
[12] Paragraph 38 of Statement of LJH
Lisa and the defendant married on 21 August 1999, with Lisa paying all the wedding expenses totalling $10 000.00[13].
[13] Statement of LJH
On 11 January 2000 Elsie executed a will drafted by the defendant in which he was appointed the sole Executor. Provision was made for: the priority repayment to Lisa of the $10 000 she spent on her wedding; a life interest to Lisa in any real property, any personal effects and 2/7s of the residual estate. The effect was to grant Lisa a benefit which exceeded that of Elsie’s remaining five children. Lisa had no knowledge of the drafting, execution or contents of the will at that time.
Also on 11 January 2000 Elsie signed an enduring power of attorney prepared by the defendant naming the defendant as the sole attorney. (Again, Lisa states that she had no knowledge of the drafting, the execution or contents of the Power of Attorney). The defendant states that the reason he obtained the enduring power of attorney was because it would “allow me to operate an account for Elsie so that I control her investments for her. My biggest concern is that she will be continued to be pressured by family members for money to a greater extent than she already is and she will give away too much and infringe the social security rules….”
In the defendant’s records of interview with police,[14] the defendant was unable to explain the role and responsibilities of an enduring power of attorney; and never paid any attention to the respective Powers of Attorney Acts in Western Australia and Queensland, both of which provide that an attorney must exercise power honestly and with reasonable diligence to protect the principal’s interests.[15]He didn’t in fact know whether he had ever read the sections applying to powers of attorney.
[14] Exhibits 52, 53 and 54.
[15] Pages 13-16 of record of interview 9 October 2007
Pursuant to the Power of Attorney, the defendant arranged for the sale of the vacant block and on 29 February 2000, the sale proceeds of $78 511.19 were deposited to a National Australia Bank (NAB) account held in the name of HCC as Executor for the estate of O D Ashmore (“the trust account”). Lisa states she was unaware of the existence of the trust account (or payments made into and “loans” taken out of it). Lisa states that she was also never provided with details of any bank accounts held in the defendant’s name and was unaware of his financial position throughout their marriage.[16] The defendant stated to police that the reason the money remained held in the trust account and not transferred into Elsie’s ANZ bank account was “because Elsie did not want the money in Perth because of pressure being placed upon her from family members for money to be distributed to them”.[17] The trust account had a cheque book and was linked to the defendant’s NAB Flexicard account, the defendant’s National Australian bank Taxation Institute account and the defendant’s visa account.
[16] Statement of LJH
[17] Page 29 of record of interview 25 September 2007
Lisa conceded that there were conversations between her mother Elsie and the defendant to which Lisa was not a party and in relation to which, therefore, Elsie had an opportunity to have given consent to applications of the money by the defendant from the trust account.[18]
[18]Evidence of LJH
The Crown tendered evidence obtained from a forensic investigative accountant[19] Brett Jason Gordon, who undertook an examination and analysis of the trust account[20] between its opening date of 29 February 2000 and its closing date of 4 July 2003. Mr Gordon prepared a flowchart of the trust account[21] to indicate the defendant’s dealings with moneys paid into and out of it. Despite the complex nature and number of transactions referred to in Mr Gordon’s evidence, and the flowchart in particular, the prosecution did not ask any questions of Mr Gordon beyond that of his name, occupation and whether or not he had made the statement placed before the court. No jury, in this court’s view, could possibly begin to understand Mr Gordon’s evidence without a great deal more questions being asked of him in explanation of his findings.
[19] Statement of Brett Jason Gordon(BJG)
[20] Annexures B and D to Statement of BJG
[21] Annexure C to the Statement of BJG
Mr Gordon’s statement reveals the following:-
1. The total net amount available in the trust account for application by the defendant at the direction of Elsie was $80 284.47[22];
[22] Statement of Brett Jason Gordon annexure E
2. Payments from the account specifically requested by or for Elsie totalled $25 076.10;[23]
[23] Statement of Brett Jason Gordon annexure E
3. Additional withdrawals, including eftpos withdrawals by the defendant; and transfers of money to accounts or credit cards in the defendant’s name totalled $50,351.39; including:
(a) A withdrawal of $20 000.00 on 24 January 2001[24], to a term deposit in the defendant’s name (which upon maturity, was repaid with interest into the Trust account on 24 February 2002);
[24] Annexure B to Statement of BJG
(b) A withdrawal of $3 306.75 on 10 March 2000 to purchase 500 Coles Myers Shares in the defendant’s name. (One of the reasons given by the defendant for the purchase of these shares was so that he and Lisa could obtain a Coles Myer shareholder card to obtain discounts, although no shares were ever purchased in Lisa’s name);
(c) A withdrawal of $28 000.00 on 28 March 2000 to Burrell Stockbroking, $10 991.50 of which was used to purchase shares in the Defendant’s name (that is, 2000 Nylex shares at $4 830.15 purchased on 28 March 2000; 1000 GWA shares at $2 248.30 purchased on 30 March 2000 and 500 Suncorp Metway shares at $3 913.05 purchased on 30 March 2000). The balance of $17 008.50 was deposited to a money market deposit account in the defendant’s name. All shares in the defendant’s name were held via Burrell Stockbroking Pty Ltd Client Account No. 136436.
4. Repayments of some only of the money “borrowed” by the defendant from the trust account were repaid into the trust account by the defendant. After deducting those repayments, and deposits that flowed to Elsie (less Elsie’s expenses); an amount of $25 105.37 is calculated by Mr Gordon as the balance of funds withdrawn by the Defendant; additional to the $28 000.00 purchase of shares in his name and the money market deposit account in his name[25]( that is, a total of $53 105.37).
[25] Affidavit of Brett Jason Gordon
The defendant states[26] that he had to purchase shares and deposit money in his name (rather than in Elsie’s name) with Burrell Stockbroking because to do so in Elsie’s name required him to produce 100 points of identification for Elsie which was going to be difficult to obtain because she lived in Perth. Mr Gordon’s evidence reveals, however, that 800 Coles Myer Ltd Shares were purchased in Elsie’s name on 13 March 2000,[27] (held via Burrell Stockbroking Pty Ltd client account 136435),[28] before either of the purchases of shares in the defendant’s name on 28 March 2000 and 30 March 2000. In any event, the defendant’s evidence is further evidence that all shares purchased with moneys from the trust account, were held either by Elsie or by the defendant beneficially for Elsie.
[26] Defendant’s records of interview with Police on 25 September 2007, 9 October 2007 and 10 October 2007
[27] See statement of BJG page 8 and Annexure “B”
[28] Statement of BJG page 5
The defendant states in his record of interview with police that any significant expenditure from the trust account was always discussed with Elsie knew about the purchase of these shares for her beneficially because the defendant told her about them.
On 23 March 2000 Elsie and Lisa signed a Deed of Acknowledgement of Debt prepared by the defendant and dated 14 March 2000. [29] Lisa’s signature was witnessed by the defendant. The Deed provided as background, inter alia:
[29] Exhibit No. 34
“….
B. EJA (Elsie Jane Ashmore) did not receive any substantial cash amounts from OAD (Oliver Andrew Ashmore) and like her husband is a pensioner.
C. The Executor of the Estate of ODA is realising part of the real property to satisfy debts of the estate.
D. …since the death of ODA, there have been certain household expenses….which EJA has been unable to pay.
E. EJA has accepted an offer from LJH to pay those expenses on her behalf and has agreed to repay LJH out of the proceeds she receives from Estate distributions.
F. Because of expenses associated with the illness and death of ODA, EJA was unable to contribute to the cost of LJH’s wedding on 21 August 1999. ….and undertook to repay to LJH $10 000.00 as her contribution to those costs upon the receipt of Estate distributions.
G. …the parties wish to formalise the undertakings of EJA to repay the amounts to LJH and to ensure the ability of LJH to recover such amounts in the event EJA becomes of unsound mind or dies.
Clause 3 of the Deed provided:
“EJA agrees to request the Executor to pay to LJH directly, from funds to be distributed to EJA, an amount equal to the outstanding debts in full and final satisfaction of EJA’s indebtedness to LJH”.
Clause 5 provided:
“This Deed may be varied only in writing, signed by each of the parties to this Deed.”
Schedule 2 of the Deed listed the total outstanding debts for wedding expenses, council rates, water rates, caravan licence and vet in the sum of $10 367.02. That sum has never been paid to Lisa from the trust account.
On 24 September 2001 Lisa and the Defendant signed an application for finance for a BMW motor vehicle with BMW Australia Finance Limited (BMW). The defendant had earlier that year signed a lease on a Volvo S40 T4. The BMW application was prepared by the Defendant and falsely listed trust account assets worth $37 990.00 as assets of the Defendant and Lisa. Lisa has no recollection of seeing those assets listed in the application when she signed it, although she cannot recall looking at its contents, but simply signed it because the defendant asked her to do so.
At this time, the defendant was a Senior Associate at Clayton Utz on a salary of between $65 000.00 and $110 000.00 per annum,[30] and he considered himself to be on the path to partnership which would see him receiving an income between $250 000.00 and $8-900 000.00 per annum over time.[31] He nonetheless “borrowed” money from the trust account to pay for numerous expenses for himself and Lisa, including:
[30] Defendant’s record of interview
[31] Defendant’s police record of interview
1. rental costs on his and Lisa’s residence in New Farm,
2. a $1 283.00 membership of the Tattersall’s club,
3. car parking at Clayton Utz, in the sum of $8 000.00 per annum,
4. trips to Sydney for the Bledisloe and World Cups,
5. payments in reduction of his credit card debts.
The defendant states that “because the account was simply sitting there we weren’t disciplined about budgeting for ourselves.”[32]
[32] Defendant’s record of interview 25 September 2007
The defendant never discussed his income or expenses with Lisa at any time during the marriage.[33] The defendant also refused to answer Lisa’s questions about her father’s estate and Elsie’s financial circumstances, stating “Dealings between your mother and me are subject to client/solicitor privilege. Don’t ask me any more, this is none of your business. How many times do I have to tell you?”[34] The defendant conceded to police that he had told Lisa that Elsie’s financial circumstances were none of Lisa’s business and that he could not recall if he ever discussed Elsie’s affairs with Lisa. He also stated to police that he had never been engaged by Elsie as a client and that he never acted as her solicitor.[35]
[33] Paragraph 69 of Statement of LJH
[34] Paragraph 42 of Statement of LJH
[35] Pages 17 and 18 of interview 9 October 2007
Between December 2001 and April 2002, Elsie visited Lisa and the defendant in Brisbane. Lisa knew from the defendant that the defendant was paying out of the trust account for meals when the three of them went out together. To Lisa’s knowledge, however, Elsie did not agree that the Defendant would pay from the trust account for Christmas lunch that year, at a total cost of approximately $386.82. There is no evidence, however, as to how Lisa became aware of Elsie’s refusal to pay; whether the defendant was present if/when Elsie had expressed this refusal or what Lisa did as a result of becoming aware of Elsie’s attitude.
In January 2002, $8 000.00 was loaned by Elsie, to be paid from the trust account, to pay the defendant’s fees for a Masters of Applied Finance at Macquarie University. Lisa had explained to Elsie that the money would be repaid when Clayton Utz reimbursed the defendant upon passing the exams. A sum of $3 750.00 was paid to the university on 15 January 2002. No further sums were paid excepting an amount of $1 103.00 on 6 May 2003 which was voided on 26 May 2003.
On the final day of her visit in Brisbane, on 9 April 2002, Elsie attended upon Dr John De Groot, Estate Lawyer as arranged by the defendant; for the purposes of signing a will; and a Deed of Loan. A draft Deed of Loan between Elsie, Lisa and the defendant, drafted by David Cominos of Clayton Utz and the Defendant had been provided by the defendant to Dr De Groot prior to the appointment. The defendant had also telephoned to speak to Dr De Groot the day before the appointment.[36]
[36] Evidence of Rachel Mary Hastie
The draft Deed of Loan provides in the background clauses that:-
“B. At various times Elsie Jane Ashmore has informed Lisa Ashmore and HCC that they should withdraw money from the account operated by HCC on behalf of Elsie Jane Ashmore at any time when they are in need of extra funds and this has occurred from time to time.
C. In response to a specific request from Lisa in January 2002, Elsie Jane Ashmore authorised a loan of $8,000.00 to Lisa on or about the 25th January, 2002”.
Clause 2 provided that in appreciation of the support and assistance given to Elsie by the Defendant and Lisa since the death of Elsie’s husband, Elsie “…waives, extinguishes and forgives all amounts owed to her by HCC and Lisa which were borrowed prior to 23rd January, 2002”[37]. (Lisa was unaware of any amounts loaned from Elsie other than the $8 000.00 loaned for the Masters fees. The only other loan of which Lisa was aware, was the loan to Elsie of $10 372.00 which was the subject of the Deed of Acknowledgement of Debt.) No other loans are the subject of any documentation.[38]
[37] Clause 2 of the Deed of Loan Agreement
[38] Evidence of Lisa Jane Ashmore
Clause 3 of the draft Deed of Loan, specifically referable to the $8 000, provided for repayment terms.
Finally, the Deed provided “Where other amounts are advanced as loans to Lisa or HCC those amounts shall be repayable interest free at such times that Lisa and HCC are able to afford to make the repayment and in the absence of a voluntary repayment…. shall only be repayable upon receipt of a written request for repayment received …..during the life of Elsie Jane Ashmore and issued under her own hand”.
David Cominos was not called to give evidence. So much more surprising, however, is that Dr De Groot was not asked to provide a statement or summonsed to give evidence, under circumstances which in this court’s view would have required it in order to provide clarification of a number of significant issues.
Reliance was instead placed upon the evidence of Ms Rachel Hastie, an assistant solicitor employed by De Groot Lawyers as at 9 April 2002. Her evidence, supported by a file note[39] she made the same day, is that Ms Hastie was requested by Dr De Groot to join him and Elsie some time after Dr De Groot had discussed matters alone with Elsie. In Ms Hastie’s presence, Dr De Groot reiterated the essence of those earlier discussions which the file note indicated included that:
“Elsie had made modest loans to Lisa and HCC; they in turn lent her $10 000 which she repaid upon selling the block of land; their loan to her of $10 000 enabled her to attend to payment of funeral expenses; an agreement is to be signed today whereby past loans will be forgiven. There is a loan from Elsie to HCC in the sum of $8 000.00 paid to him on 25th January 2002. This loan is to be the subject of the agreement signed today. Elsie wishes to make a new will…..There is to be provision for forgiveness of the $8,000.00 debt owed by HCC to Elsie in the will together with a general forgiveness of all debts which may be owed by Lisa and/or HCC to Elsie at the date of her death.”
[39] Exhibit 35
The file note goes on to state that Ms Hastie then left the room to prepare the will and returned once Dr De Groot had settled the will. She and Dr De Groot then witnessed the will and Elsie was provided with a copy of the will before she left the office on the basis that the original was to be held at the office in safe custody. The will provided that the defendant was the sole executor; and for the forgiveness and discharge to Lisa and the defendant from the payment of all sums owing by them or either of them to Elsie, with specific mention being made of “the current outstanding indebtedness of HCC to me in the sum of $8 000.00).
The De Groot Lawyers file does not contain, however, a signed copy of the Deed of Loan, although it does contain the draft Deed provided by the defendant with handwritten amendments by Dr De Groot; and an unsigned copy of the typewritten amended document completed with the De Groot & Co template, although this latter document provides only for Elsie and Lisa as parties.
The defendant states, however, that he signed a Deed of Loan document in Dr De Groot’s office, witnessed by Dr De Groot when the defendant attended at the office to collect Elsie after her appointment, and that Dr De Groot then gave the defendant copies of the Deed of Loan executed by Elsie and the defendant so that the defendant could arrange to have it signed by Lisa. Lisa does not recall signing any Deed of Loan referable to the $8 000.00.
Ms. Hastie’s evidence is that if the Deed of Loan had been signed, there would be a signed Titles office stamped copy on file or other evidence of it being stamped.
Despite the stated intention of the Deed of Loan document by De Groot Lawyers, the defendant continued to deposit money into the trust account after 9 April 2002, for the purposes of “repayment” of amounts loaned to him[40]. There is evidence of such a “repayment” as late as 4 February 2003.[41]
[40] Defendant’s record of interview with police 9 October 2007
[41] Pages 63 and 64 of the record of interview of 25 September 2007
The prosecution asserts that the absence of a signed Deed of Loan is evidence that Elsie had no intention to forgive the debt of $8 000.00 or any others. Having regard to such evidence as there is, and in the absence of any evidence from Dr De Groot, that assertion is purely speculation.
Elsie again visited the defendant and Lisa in Brisbane in November 2002, returning to Perth in early January 2003. Also in early January 2003, the defendant suggested that Lisa also return to Perth, in order that the stressors on the defendant are reduced. Lisa agreed to go and at the defendant’s suggestion, opened a joint account with the defendant prior to her departure, so that she could make deposits in Perth to which the defendant could have access in Brisbane. Lisa could not make deposits directly to accounts held by the defendant as she had never been provided with details of them.
Prior to Elsie’s and Lisa’s return to Perth, Lisa was present on up to four (4) occasions when Elsie enquired of the defendant as to the whereabouts of her (Elsie’s) money. Elsie was extremely insistent on one of those occasions, to which the defendant replied “there’s no money, you spent it all”. According to Lisa, Elsie was angry and distressed and the Defendant was furious at the query.[42] On the other occasions that Elsie made enquiries as to the trust account funds, the Defendant avoided answering the questions[43].
[42] Statement of Lisa Jane Ashmore
[43] Paragraph 96 of the statement of Lisa Jane Ashmore
When Lisa returned to Perth, she resided with her sister Shirley. From Perth, Lisa paid the defendant’s rent, Telstra accounts, medical insurance, other insurances and payments generally to reduce debt. Lisa slept in the lounge room of her sister’s house and her sister provided Lisa with lunch money, fares and spending money so that Lisa’s income could pay the defendant’s debts and debts of the marriage. Lisa had considered that if she and the defendant could get their finances back on track, their marriage might survive. (The statement of Brett Jason Gordon does not make clear the extent of the defendant’s debts, Lisa’s debts or the marital debts during this period).
On 14 January 2003, Lisa sent an email to the defendant in which she stated “I don’t care about the money lost on the Masters…..Mum is going to ask you to transfer some of her remaining money into her savings account. I don’t see her needing any more in the near future. Anyway she said to wipe off that loan[44]. In time, if she changes her mind I will give her an allowance of $100 or $200 a fortnight over a couple of years. Big deal.”
[44] My underlining
That evening the Defendant telephoned Elsie, who was upset and crying. The Defendant made a note of the conversation. The defendant stated to her “Lisa has emailed me about the money; I’ll transfer what’s left and sell your shares”. Elsie replied “Yes, use half to pay Lisa’s bills and give me the rest.” The Defendant stated “Lisa says to wipe off the loans[45], are you sure?” Elsie replied “Yes money is your problem, fix that and then you two have a chance.... I don’t want any more lawyers; just forget about it, you don’t owe me money. Sell the shares and give me half”. The defendant interpreted the conversation with Elsie on 14 January 2003 to mean that “half of whatever the combined amount was, was to be sent to Elsie Jean Ashmore and the other half was for my use to sort out the marital problems”[46]
[45] My underlining
[46] Record of interview with police. Pages 40-45
The evidence of Mr Gordon is that as at 14 January 2003 the trust account had a balance of $2 892.66.[47] Total deposits thereafter until the account was closed on 4 July 2003 were $7 024.36 including $4 912.55 on the 7 February 2003 as a result of the sale of the Coles Myer shares in Elsie’s name. The combination of the account balance as at 14 January 2003 and Elsie’s shares is $7 805.21, half of which is $3 902.60.
[47] Annexure B
Mr. Gordon’s evidence also indicates, however, that as at 14 January 2003, there remained in existence the following shares purchased with trust moneys:
1. 500 Coles Myer shares in the defendant’s name, which were sold on 23 October 1003 for $3 802.50, which sum was deposited to the defendant’s NAB flexi-account;
2. Austrim Nylex, GWA and Suncorp Metway shares in the defendant’s name, which were sold on 22 January 2003 for $9 385.26, which sum was also deposited to the defendant’s NAB flexi-account. The defendant states that proceeds of $13 187.76 from the sale of these shares were utilised by the defendant in paying off his debts.
On 6 March 2003, a cheque for one-half of the combined amount of the balance of the trust account as at 14 March 2003 and the sale proceeds from the shares in Elsie’s name (that is, $3 902.60) less $869.14 was paid to Elsie.
The next day, 7 March 2003, in Perth, Elsie revoked the power of attorney in favour of the defendant and Lisa advised the defendant by phone the same day.
On 15 September 2003, the defendant received an amount of $40 000.00 from Clayton Utz when he left that employment. Two (2) days later, the defendant deposited the sum of $20 000.00 into an ING Direct account in his name. The defendant stated to police that as a result of Elsie’s attitude towards him at this time, he decided that he would have nothing more to do with her or Lisa and that was one of his explanations as to why he did not even think about giving Elsie any money from the $40 000.00,[48] or anything from the $13 187.76 share sale proceeds in October 2003.
[48] Record of interview 10/10/07
The elements of the offence with which the defendant is charged are that the accused:
1. dishonestly
2. applied to his own use
3. property
4. belonging to another.
There is no dispute in relation to the sufficiency of the evidence in relation to elements (2), (3) and (4). The only issue in contention is whether or not the defendant acted dishonestly.
Whilst there is evidence that Elsie told the defendant in a telephone conversation on 14 January 2003 that he did not owe her any money, she also, in the same conversation clearly instructed him to sell her shares. At that time, the Coles Myer shares in her name; and the Coles Myer, Austrim Nylex, GWA and Suncorp Metway shares held beneficially for her in the defendant’s name had a total value approximating $18 100.31 (there is no evidence of what the shares in the defendant’s name, held beneficially for Elsie, were worth as at the 14 January 2003).
On the basis that the defendant stated to police that he discussed all significant withdrawals from the trust account, and the reason for same, with Elsie, there is evidence upon which a jury could be satisfied beyond reasonable doubt that, by applying the sale proceeds of the shares held in his name to his own use, after Elsie had revoked the enduring power of attorney, the defendant was objectively dishonest and realised he was acting dishonestly.
The extent of the dishonesty, based upon the evidence before this court is, in this court’s view, at least:
1. the total value of the shares held beneficially in Elsie’s name, which were sold in October 2003 after revocation of the enduring power of attorney (ie $13 187.76): plus
2. $869.14, being the difference between what Elsie received by cheque on 6 March 2003 ($3 033.46) and what represented one-half of the combined balance of funds in the trust account as at 14 January 2007 and the shares in Elsie’s name (½ x $7 463.02 = $3 902.60).
Even if a jury was to accept the defendant’s interpretation of what he was authorised to do as a result of the telephone conversation with Elsie on 14 January 2003; the combination of the balance of the trust account ($2892.66) AND the value of Elsie’s shares ($18 100.31) as at 14 January 2003 gives a total of $20 992.97, half of which is $10 496.48, only $3033.46 of which Elsie received, leaving a shortfall of $7 463.02.
There may very well be additional amounts which can be traced should the prosecution seek to make a further and better analysis of the evidence before the court.
In the meantime, this court is satisfied that there is sufficient evidence to charge the defendant with an offence pursuant to s 408C(1)(a)(i); that is that between 19 May 1999 and 2 January 2004 at Brisbane or elsewhere in the State of Queensland he dishonestly applied to his own use property belonging to Elsie Jean Ashmore, namely a sum of money in his possession and the yield to the defendant from the dishonesty was of a value of more than $5000.00.
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