R v Gunnarsson-Wiener Summary

Serial No B36/1992
List “B”

CITATION: R v Gunnarsson-Wiener [1992] TASSC 114; B36/1992

PARTIES: R

v
GUNNARSSON–WIENER, Elfriede Brigitte

TITLE OF COURT: SUPREME COURT OF TASMANIA

JURISDICTION: ORIGINAL

FILE NO.: C251/1991

DELIVERED: 13 August 1992

HEARING DATES: 22, 23, 28, 29, 30 & 31 July 1992

JUDGMENT OF: Zeeman J

CATCHWORDS:

Criminal Law – Judgment and Punishment – Sentence – Character of offence – Part of a course of unlawful conduct – Perverting Justice – Breaches of companies legislation – Obtaining a financial advantage by deception – General deterrence – Factors personal to the prisoner – Acting on directions given to her by husband who was her co–director of relevant companies – Battered woman syndrome as a mitigating factor

REPRESENTATION:

Counsel:

Crown: M E O'Farrell & I Arendt
Accused: W M Griffiths & C Tsamassiros

Solicitors:

Crown: Australian Government Solicitor
Accused: Butler McIntyre and Butler

Judgment ID Number: B36/1992

Number of paragraphs: 122

Serial No B36/1992

List "B"

File No C251/1991

THE QUEEN v ELFRIEDE BRIGITTE GUNNARSSON–WIENER

REASONS FOR JUDGMENT ZEEMAN J

13 August 1992

INTRODUCTION

The accused was presented upon an indictment containing eighteen counts. Pleas of guilty were taken from her on counts 1 2 3 5 17 and 18. Thereupon counsel for the Crown indicated that a nolle prosequi would be filed in relation to the remaining counts and no pleas were taken thereto.

Each of counts 1 and 2 charged the accused with the crime of perverting justice contrary to the Criminal Code, s105. Each of counts 3 and 5 charged the accused with a breach of the Companies (Tasmania) Code, s227(1). Count 3 alleged that the accused was concerned in the management of Denver Glen Pty Ltd and count 5 alleged that she was concerned in the management of Advertising and Marketing League of Australia Pty Ltd. Each of counts 17 and 18 charged the accused with the crime of dishonestly obtaining a financial advantage contrary to the Criminal Code, s252A (1).

During the course of the proceedings:

(a)counsel for the Crown stated the facts, often by reference to voluminous documentary material;

(b)       counsel for the accused made submissions as to the facts including submissions:
(i)        whereby certain of the facts relied upon by the Crown were placed in issue;
(ii)       by way of stating facts which went to explaining facts relied upon by the Crown; and
(iii)that as a matter of law certain of the particulars of some of the offences charged ought not to be taken into account as they are irrelevant;

(c)I heard evidence from a number of witnesses (including the accused) as to certain of the disputed facts;

(d) counsel for the accused made other submissions as to matters going in mitigation;
(e)I heard evidence from a clinical psychologist who gave evidence of fact and expressed opinions as to matters going in mitigation.

It follows that it is appropriate that where necessary I state my findings of fact and in any event state the essential factual basis upon which I proceed to sentence the accused, which involves dealing with some of the legal submissions which were put. Unless I indicate otherwise, facts set forth in these reasons have been taken into account as being relevant to the appropriate offence charged.

BACKGROUND

During the 1970s the accused and her husband Wolfgang Gunnarsson–Wiener (to whom I will refer as "the husband") were directors of a number of corporate bodies registered under the Industrial and Provident Societies Act, 1923 of the State of South Australia. Proceedings were taking for the winding–up of those societies. Orders for the winding up of those societies were made by the Supreme Court of South Australia in 1978 (see Re The Cooperative Development Funds of Australia Limited (No 3) (1978) 3 ACLR 437). The accused and the husband, both of whom had opposed the making of the winding up orders, were ordered to pay the costs of the proceedings. It appears that they did not pay those costs to the Attorney General for South Australia as required by the relevant orders. The Attorney General filed a creditor's petition, relying on the orders for costs, seeking that sequestration orders be made against the accused and the husband. Such orders were duly made so that each became a bankrupt in 1980. The accused, at least, remains a bankrupt.

In 1979 there was established an entity or organisation known as Tamar Valley Foundation ("TVF") the precise nature of which is obscure and which may or may not be a corporation or quasi–corporation by virtue of the laws of the Principality of Liechtenstein. Whatever its status, the object of this body appears to have been to hold, control and administer property for the following purposes:

(a)as a primary purpose, to meet the cost of educating, training and supporting members of the Gunnarsson–Wiener family;
(b)as a secondary purpose, to establish, promote, administer and control foundations and corporations for the purpose of accumulating assets the income from which it to be used to establish and maintain villages and educational institutions for orphans and other children in need of assistance;
(c)as a residual purpose, to conduct all transactions related to those purposes considered to be in the interests of the Noskatt Foundation (Vaduz) (whatever that might be).

It appears that the husband has had the sole right to act on behalf of TVF. At the time of their bankruptcy the accused and the husband were the directors of a number of companies, apparently incorporated in Tasmania, including Advertising and Marketing League of Australia Pty Ltd ("AML"), Denver Glen Pty Ltd ("DG"), Childrens Village Nominees Pty Ltd ("CVN") and Citizens Action Group Pty Ltd ("CAG"). Tamar Valley Foundation was the principal shareholder in each of those companies. Upon becoming bankrupts the accused and the husband were prohibited from acting as directors of those companies or directly or indirectly taking part in or being concerned in the management of those companies by virtue of the Companies Act 1962, s117(1). Such a prohibition continued when the Companies (Tasmania) Code came into force by virtue of s227(1) thereof. The accused and the husband ceased to be directors of all the companies which I have mentioned some time subsequent to the making of the sequestration orders. The Crown asserts that in essence nothing changed when the accused and the husband relinquished their directorships in that, notwithstanding that other persons notionally became directors of relevant companies, the accused and the husband (particularly the latter) continued to exercise de facto control. Counts 1 and 2 arise out of the accused's endeavours to hide that fact. Counts 3 and 5 arise out of what the accused did by way of being concerned in the management of DG and AML. Counts 17 and 18 arise out of conduct on the part of the accused which led to the making of loans by banks to the accused's son Roland Layh but so as to provide a financial benefit for the accused or the husband or companies or other entities controlled by them or for two or more of them.

FACTS RELEVANT TO COUNT 1

It is apparent that the activities of the accused and the husband attracted the attention of the Commissioner for Corporate Affairs and on 30 September 1988 the accused was formally interviewed by the Deputy Commissioner, Mr Dwyer, who was then engaged in making relevant investigations. Certain of the answers which the accused provided to Mr Dwyer form the basis of count 1.

The accused was asked by Mr Dwyer whether she had had any involvement in the affairs of DG since her bankruptcy. She told him that she had such an involvement but only by way of carrying out instructions given to her by her sons (who were Roland Layh and Sven Gunnarsson–Wiener) or by a Dr Clyne (one Peter Clyne with whom the husband had had some form of business relationship). Returns lodged with the Commissioner for Corporate Affairs indicate that Roland Layh was a director of DG from 1 January 1985 to 23 January 1989 and a secretary from 7 August 1981 to 31 December 1983 and from 27 January 1984 to 23 January 1989 and that Sven Gunnarsson–Wiener was a secretary of that company from 12 August 1988 to 24 November 1988. Those returns do not indicate that Dr Clyne ever was a director or secretary or other officer of DG. In fact, the accused did not ever act in the affairs of DG on instructions given by any of those three persons. Very occasionally she may have obtained some routine advice from Roland Layh as to whether it was appropriate to lodge a particular document in a particular form or the like, but that did not constitute acting on his instructions. Any such enquiry was made when the husband was absent and was done so as to afford the accused a measure of protection against any expression of displeasure by the husband were he to take the view that she had proceeded incorrectly. To the extent that the accused was involved in the affairs of DG by way of carrying out instructions, such instructions were given to her by the husband and no one else.

The accused was asked by Mr Dwyer whether she ever had responded on her own initiative to correspondence addressed to DG. The accused answered that she did not think that she had and that she had answered correspondence only in accordance with instructions given by officers of the company. Mr Dwyer's question was directed to the period commencing when the registered office of DG was first located at 1 Swan Point Road, Swan Point, which appears to have been 1 December 1981. The directors of DG from 1 December 1981 to the date when the accused was interviewed included TVF, Roland Layh and a number of other persons, the existence of some of whom may be doubted. The accused explained her reference to officers of the company by making it clear that when she referred to officers of the company she was principally, if not solely, referring to Roland Layh. In fact, Roland Layh gave her no instructions as to correspondence to be sent on behalf of DG. To the extent that she did receive instructions they were from the husband who was not an officer of DG at any relevant time. She denied ever having acted on instructions given by the husband. The accused was extensively involved in correspondence sent on behalf of DG. The procedure either was that the accused prepared a draft which was then amended by the husband and then typed by the accused in its final form or that the accused typed correspondence which had been drafted by the husband.

Apparently speaking of the position as at 30 September 1988, Mr Dwyer asked the accused who had controlled the affairs of DG. The accused told him that the affairs of DG were controlled solely by the board of directors. At that time the directors of DG as appearing from the returns lodged with the Commission for Corporate Affairs were Fader Var, Roland Layh and Maisie Park. Var was said to have been a person residing in the then German Democratic Republic. Whether he existed or was a figment of the husband's imagination is uncertain. Maisie Park was an elderly lady, a neighbour of the accused, who had been persuaded by the accused to become a director at the apparent instigation of the husband. None of those three persons exercised any form of control over the affairs of DG as the accused well knew. The affairs of DG were subject to the absolute control of the husband.

Mr Dwyer asked the accused whether Mrs Park played an active role in the affairs of DG to which the accused responded by saying that "the predominant activity" came from Roland Layh. That answer was plainly untrue and the accused well knew that it was untrue. The accused told Mr Dwyer that instructions as to what was to be done in relation to the affairs of DG were conveyed by the directors to her or to the husband. In fact, nothing of the sort ever occurred. The accused told Mr Dwyer that when a decision was made by DG to buy or sell certain land (and the company was involved in many dealings in land), any draft contract was passed on by her either to Roland Layh or to Clyne so that he might send it to Var. The accused never did any such thing. To the extent that she may have passed over draft contracts, she passed them over to the husband.

On 14 December 1987 there was registered pursuant to the provisions of the Registration of Deeds Act, 1935 a purported power of attorney, in the standard Law Society form, apparently given by DG to the husband. That power of attorney purportedly was executed as long ago as 27 January 1980. The application for registration of that purported power of attorney was prepared and lodged by the accused who signed it on behalf of DG. Mr Dwyer asked the accused as to her authority to sign the application. The accused told him that she signed it in accordance with instructions given to her by the board of DG. That answer was untrue. The husband had produced the power of attorney to the accused and had told her to have it registered as a matter of urgency.

DG was the owner of land as to which it sought to obtain the approval of the Beaconsfield Council to have it subdivided. There were various discussions and negotiations with the Council in relation to subdivision proposals. In the course thereof the accused had dealings with the Council on behalf of DG. Mr Dwyer questioned the accused about her authority to deal with the Council. Inter alia, she told Mr Dwyer that she had received those instructions from Roland Layh. That answer was quite untrue. She had received no such instructions. Such instructions as she did receive came from the husband.

DG required funds to enable it to carry through its land dealings and to develop the same. An approach for loan funds was made to Australian Guarantee Corporation Limited. The accused told Mr Dwyer that the decision to seek a loan from Australian Guarantee Corporation Limited was made by Roland Layh. That was untrue. Roland Layh made no such decision to seek a loan. The decision was made by the husband. To the extent that the accused was involved in dealing with Australian Guarantee Corporation Limited it was on the instructions of the husband.

In the context of Roland Layh being the person most actively involved in the affairs of DG, as the accused had quite falsely been suggesting, Mr Dwyer asked her whether it was normal practice for Roland Layh to seek advice in relation thereto either from the accused or the husband. The accused told Mr Dwyer that Roland Layh did seek such advice from them and also from Dr Clyne. In fact Roland Layh played no part in the affairs of DG. There was no occasion for him to seek advice as to its affairs and he did not seek such advice. The accused well knew the true situation.

In May 1988 Roland Layh left Australia and travelled to India. It appears that he returned to Tasmania shortly before the time when the accused was questioned by Mr Dwyer. Mr Dwyer asked her as to who had been giving instructions on behalf of DG during Roland Layh's absence in India. The accused told him that the necessary instructions "would have been" sought from Roland Layh before he left for India. In fact no instructions were ever sought from Roland Layh as to the affairs of DG.

I have mentioned the position of Mrs Park in relation to DG. She also became a director of AML on 15 July 1988. The accused was asked by Mr Dwyer whether Mrs Park took an active role in the affairs of AML. She told Mr Dwyer that Mrs Park's role was to act in an advisory capacity. As the accused well knew, Mrs Park had done no more than lend her name to the company. The accused, on the instructions of the husband, had asked Mrs Park to act as a director and Mrs Park agreed, she then being aware that the accused was acting at the husband's behest. Mrs Park did not ever carry out any of the duties or functions of a director nor did she act in any form of advisory capacity. I infer that she had none of the skills which would have been necessary for her to act in either capacity.

Mr. Dwyer produced to the accused a copy of the annual return of AML lodged on 31 January 1986. She agreed that she had prepared that document and asserted that she had been instructed by the directors of AML to prepare the accounts as referred to in that annual return. That was false. The husband had given her those instructions.

That same annual return purports to be signed by Roland Layh in his capacity as director and by one Carol Molle in her capacity as secretary. The report of the directors and statement by the directors accompanying that annual return purport to be signed by Var. It is uncertain as to whether either Molle or Var ever existed. The Crown does not suggest that the accused knew or believed that they did not exist. However, the accused told Mr Dwyer that the directors had signed the annual return prior to the accused signing the statement by the principal accounting officer which formed part of the return. The accused well knew that this was untrue, at least in part, because the purported signature of Roland Layh had been written by her.

Mr Dwyer produced to the accused a form, addressed to the Australia & New Zealand Banking Group Limited, authorizing the opening of a bank account in the name of AML which inter alia confirmed the adoption by the board of directors of AML of a resolution in relation to the opening and operation of that account. The form purported to be signed by Roland Layh as chairman of directors and by Carol Molle as secretary of the company. The accused told Mr Dwyer that that authority had been signed by her son and by Mrs Molle. At least insofar as Roland Layh was concerned he had not signed the form and the accused well knew that the signature which purported to be his was not his.

At the time that the accused made these various false statements to Mr Dwyer she knew that the corporate regulatory authorities were investigating conduct on the part of herself and the husband in relation to inter alia DG and AML and that those authorities might well invoke the jurisdiction of a court to prosecute them for breaches of the Companies (Tasmania) Code, s227(1), or the like, unless, by providing false information as to which persons had in fact managed those companies, the authorities might be deflected from that course. The accused admits that the provision by her of those false answers was intended to have such effect insofar as any possible prosecution of the husband was concerned. The accused denied that she intended to deflect the authorities from prosecuting her. The Crown did not seek to call any evidence on this issue so I proceed upon the basis of the accused's version. Nevertheless, it is obvious from the material before me, and not denied by the accused, that it must have been obvious to her, had she thought about it, that the false statements would have a manifest tendency to deflect the authorities from prosecuting both her and the husband.

The fact was that since they became bankrupts the accused and the husband had continued to act as the de facto directors of DG and AML, albeit that the husband had taken the leading role so that in all matters of significance his will prevailed. Various persons, existent or non–existent, had been put forward as being the directors of the company from time to time. They were no more than names. They did not perform any of the functions of the directors of a company and would have been prevented from doing so by the husband had they attempted to do so. They were put forward so as to hide the fact of the ongoing breaches of the Companies (Tasmania) Code, s227(1) and its predecessor provision. It involved an ongoing course of unlawful conduct. The accused's answers to Mr Dwyer were intended to attempt to persuade him, and through him those responsible for the administration of the laws relating to companies, that such unlawful conduct had not been engaged in and that the persons named as directors from time to time actually performed the functions of the directors of the company.

FACTS RELEVANT TO COUNT 2

Not surprisingly, the authorities considered it appropriate that Roland Layh be interviewed. It was determined that that be done by way of a hearing under the National Companies and Securities Commission (State Provisions) Act 1981, s7. Pursuant to s12(1)(4) the power to conduct the hearing was delegated to Mr Dwyer and another officer of the Commissioner, Mr Tsiakis. The purpose of the hearing was to carry out an investigation pursuant to the Companies (Tasmania) Code, s16A. The hearing extended over two days, 4 and 14 November 1988. The evidence given by Roland Layh at the hearing was given on oath. The Crown case is that the accused did certain things by way of aiding, abetting and instigating Roland Layh to pervert the due course of justice by way of giving false evidence at the hearing, so that he might conceal the involvement of the accused and the husband in the affairs of DG and AML and thereby deflect the authorities from the course which she believed might otherwise be taken, ie the prosecution of the husband. I have already mentioned that in May 1988 Roland Layh went to India, apparently returning in about October 1988. Prior to leaving for India Roland Layh knew that he had been named as a director of a number of companies related to his parents' business affairs, but his knowledge of the affairs of these companies was so limited that he was not able to identify them with any degree of confidence. His role was limited to signing some documents as instructed by the accused.

In October 1988 Roland Layh's parents told him that they remained undischarged bankrupts, that as a result they were not permitted to be involved in the management of companies, that the Corporate Affairs office had been inquiring into the affairs of DG, AML and CVN and that investigators attached to the Corporate Affairs office would wish to speak to him. The accused and the husband provided Roland Layh with certain background information in relation to DG, AML and certain other companies and as to his supposed involvement in them. In particular the husband, in the presence of the accused, handed Roland Layh a document entitled "Report re Fisher and the Robigana subdivision road". The Crown alleged that the accused told her son to read the report and to familiarise himself with it. She denied doing so but conceded that the husband made that request of her son in her presence. As the Crown called no evidence on this point (although Roland Layh was called for other purposes) I proceed upon the basis of the accused's version. Counsel for the accused submitted that the accused's mere presence could not constitute an act of aiding, abetting or instigation on the part of the accused. Upon reading the report it is obvious that it contains a number of false statements, such as that Roland Layh held the Robigana subdivision land in trust for a development syndicate, that the husband had been authorised and instructed by Roland Layh to confirm by letter certain arrangements with the surveyor Fisher and that Roland Layh had authorised part payment for certain materials required for road construction. Plainly, the husband's intention in handing that document to Roland Layh was to enable him to become familiar with an untruthful version of matters relating to the Robigana subdivision so that he might be able to give answers to questions in accord with that untruthful version. However, there is no material before me suggesting that the accused knew what was contained in the report nor that she did anything by way of encouraging Roland Layh to comply with his father's request. I am not persuaded that in this particular the accused did anything by way of aiding, abetting or instigating Roland Layh to give false evidence.

At about the same time the husband, in the accused's presence, handed Roland Layh three pages of a document entitled "Index to Roland's Report" together with a note in the handwriting of the husband stating (apparently falsely) how the mortgage payments relating to the house in which he and the accused resided were being met. Subsequently a further four pages forming part of that document were received by Roland Layh through the post. On a number of occasions the accused told Roland Layh that he ought to read those parts of the document received by him (including the handwritten note) and familiarise himself with it. In fact, the accused's counsel told me that she had pleaded with Roland to learn the contents of the document, albeit to placate the husband. The Crown referred to the whole document as being entitled "Index to Roland's Report" although an examination of it (or at least so much of it as is before me) suggests that the document was not so entitled but rather included a first page, called an index, which indicated the contents of the balance of the document. It is apparent that the purpose of the document was to enlighten Roland Layh as to the nature of the difficulties with the Corporate Affairs authorities which were sought to be averted and how those difficulties might be averted and to provide background information to enable Roland Layh to answer questions. The index suggests that on various pages of the document there might be found material under the following headings.

1         Explanation to s227 problem.
2         Peter Clyne instructions via TVF until he died.
3         At present only AML and DG involved.
4         How to deal with questions by Corporate Affairs.
5         List of all companies.
6         List of all officers.
7         List of recent transactions.
8         List of properties on hand and mortgages etc.
9         Sundry background and other sundry information Roland ought to be aware of.
10       TVF and Noskatt – Liechtenstein situation.
11       Debenture matter.
12       Summary and conclusions.

Although the index suggests that at least fifteen pages follow, Roland Layh was only provided with 1 6 7 8 11 and 14 so that the document inter alia did not tell him how to deal with questions by Corporate Affairs in express terms. Nevertheless the explanation of what is referred to as the s227 problem is in terms which clearly suggested that Roland Layh ought to provide grossly misleading information to officers of the Commissioner for Corporate Affairs. The accused was well aware of the significance of what she was asking her son to do.

On 30 October 1988 the accused sent to Roland Layh a letter enclosing a summary of the contents of the statutory records of a number of companies. The sending of that letter is relied upon as a particular of the accused aiding, abetting or instigating. I do not consider that it can constitute any such thing as nothing was placed before me as to the content of the enclosures beyond an indication of their nature.

I have already referred to the interview between the accused and Mr Dwyer on 30 September 1988. A transcript of that interview was prepared. A copy of the transcript came into the hands of Roland Layh. He was told by the accused to read that transcript more than once in order to become familiar with the answers. Plainly, the intention of the accused was that Roland Layh become familiar with the facts asserted by the accused during the course of her interview (much of which were falsehoods) so that Roland Layh would not give inconsistent evidence and, where necessary, corroborate what the accused had told Mr Dwyer.

The examination of Roland Layh commenced on 4 November 1988.

During the course of the hearing Roland Layh was asked how much time he had spent at his parents' home at 1 Swan Point Road, Swan Point, during the preceding period of two years. He said that possibly he had spent about two weeks in all there but that he had not stayed there for longer than three days on any one occasion. He was asked as to the reason for those visits. He replied that it was to see his parents, to hear of "the situation" and to give instructions. In the context in which this answer was given it appears that Roland Layh, when he referred to "the situation" was referring to the affairs of the relevant companies and that when he spoke of giving instructions he spoke of giving instructions as to the conduct of the affairs of those companies. The answer was false. Roland Layh did no such thing. He was led to give that false answer by reason of the conduct of the accused and the husband to which I have referred.

Roland Layh was asked as to company documents signed by him which had been typed by the accused. He said that he would scan those documents to see that they were what was required and check that they were "as discussed". Again, that evidence was false. No document had been discussed prior to its preparation. On the occasions when Roland Layh did sign documents required to be signed by him (and on many occasions the accused happily signed his name for him usually without her son's knowledge or authority) he merely did as he was told. The conduct of the accused and the husband to which I have referred was instrumental in having Roland Layh give this evidence.

Roland Layh told the hearing that there had been a number of occasions when various of the companies had made applications for finance. He was asked whether he had prepared documents in support of such applications to which he responded that he instructed the accused to prepare those documents. Again, that answer was false. Roland Layh had never instructed the accused to prepare such documents. On some occasions when they had been prepared they had been prepared without Roland Layh's knowledge. His evidence accorded with what the accused and the husband had suggested to him.

At about 5 pm on the first day, the hearing was adjourned to a date to be fixed. It appears as though Roland Layh had been told that he should bring with him relevant company documents upon the resumption of the hearing. At the conclusion of the day's proceedings he was met by his parents who drove him back to his flat in Battery Point. The husband inquired as to what had transpired at the hearing. Roland Layh told him and the accused that he was required to produce more books in relation to DG, AML and CVN. The husband said that he would supply those books. He and the accused returned to Swan Point some time later.

The hearing was due to reconvene on 14 November 1988. The accused and the husband travelled back to Hobart on the preceding day and spent the night at Roland Layh's flat. On the morning of 14 November 1988, and prior to the resumption of the hearing, there were produced to Roland Layh a large number of documents purporting to be various resolutions of DG and various authorities, instructions and approvals given by DG. The documents bore various dates ranging from 15 April 1985 to 10 October 1988. The documents had been prepared during the preceding ten days or so. They had been drafted by the husband. At least some of them were typed by the accused. The purport of some of the supposed resolutions is obscure. A number appear to purport to evidence acknowledgements by DG that various pieces of land held by it as registered proprietor were not held by it beneficially. Some of them purport to authorise the accused to do certain acts on behalf of the company. The resolutions purport to be resolutions in writing in lieu of resolutions adopted by a meeting of directors. Clearly, the documents were created so that Roland Layh might represent that they were documents held by the company providing contemporary evidence of the doing of the things therein referred to. The husband asked Roland Layh to sign all the documents. The accused put the documents in front of Roland Layh and she produced an assortment of pens for the purpose, obviously so as to give the appearance that the documents had been signed at various times. The accused denied that she had done this. I heard evidence from her and Roland Layh on this point. I accept Roland Layh's evidence. After the documents had been signed, the accused accompanied Roland Layh and the husband to the State Library where the three of them photocopied the documents. She thereby participated in actions whereby there would be produced at the hearing copies of apparently legitimate company records.

Upon the resumed hearing Roland Layh produced three folders of photostat documents. One contained documents relating to DG, one contained documents relating to AML and one contained documents relating to CVN. Wholly or in part the copy documents relating to DG were the photostat copies taken at the State Library. To the extent that those documents were the copies produced at the State Library, their production was intended to convey to the persons conducting the hearing that the documents were copies taken from the records of DG which had been signed by the accused's son on or about the dates shown therein. They were intended to demonstrate Roland Layh's participation in the management of the company and to evidence the adoption of resolutions on the dates shown. That was contrary to the facts. The documents were produced by the accused and the husband and provided to Roland Layh so that that very purpose might be achieved.

During the course of the hearing on 4 November 1988 Roland Layh had been shown one or more documents, purportedly signed by him, but in fact signed by the accused in his name. When Roland Layh met his parents at the conclusion of that day's proceedings, he told them that such documents had been produced. The Crown asserted that the accused then admitted to her son that she had been signing documents in his name and lodging those documents in the Corporate Affairs office. The Crown further asserted that on several occasions prior to the resumption of the hearing on 14 November 1988, the accused told Roland Layh that, if there were produced to him any further documents purportedly signed by him but in fact not signed by him, he was to say that the signatures were his. The accused denied that she had said this to her son. I heard evidence on this point from Roland Layh and from the accused. Roland Layh told me that at least one document had been produced to him on the first day of the hearing bearing a signature as to which he had been asked whether it was his signature. He said that he gave evidence that it was, although in fact it appeared to have been in his mother's handwriting. He told me in evidence that he said to the accused "Look there is a signature there which isn't mine" to which she replied "Don't say that they are not your signatures". He said that the accused confirmed to him that he should continue with what he had been doing, ie acknowledging signatures as being his when in fact they were not. His recollection was that the accused said this on one occasion only, which he believed was on 4 November 1988. The accused agreed that, whilst she was at the State Library photostating in the circumstances to which I have referred, she inquired of Roland whether he had informed Corporate Affairs that some of the signatures on documents purporting to be his were not his. She said that her son told her that he had not done so and would not do so. Nevertheless she denied that she ever had told her son to lie to the Corporate Affairs officers with respect to signatures.

I found the accused in many respects an entirely unsatisfactory witness. When she was cross–examined as to the photocopying of documents at the State Library, the following exchanges occurred:

"MR. O'FARRELL. And you were at the Library when they were being photocopied? .... I was present when they were being copied.
And you in fact assisted in the photocopying? .... I cannot recall exactly that I actually photocopied them, but I know I was present.
... Photocopy? ... I might have photocopied them but I am not certain that because there were three persons present or some of them – matters being done by other people.
Well I am not suggesting that they were all photocopied by you Mrs. Gunnarsson–Wiener. I'm suggesting you photocopied some of them? .... I cannot say at this stage.
Right. Now, – at the time you were photocopying them, you well understood that those documents were to be used by Roland to mislead the Corporate Affairs Office? .... You see I did not type all of the documents.
I am not suggesting that, at the time –
HIS HONOUR. Just listen to the question carefully. Just put it again Mr O'Farrell. Just answer that.
MR O' FARRELL (RESUMES) At the time that you were or the documents were being photocopied, you well understood that they were to be produced by Roland at the Corporate Affairs Office? .... That they were to be produced, yes.
Yes and that they were specifically for the purpose of misleading the Corporate Affairs Office? ... That was no understanding on my part that they were to mislead the Corporate Affairs.
But Mrs Gunnarsson–Wiener, you knew that these documents that they had virtually just been created? .... I understood – I mean without having actually perused, I did not peruse all these documents. I did not know the contents exactly. But –
Well – ? .... Yes.
Well I will put it to you that you knew perfectly well that they were documents – they were at the very least, you knew that they were documents which was supposed to be put to the Corporate Affairs Office as the Company records or as Company reports? .... From what I understood that they were papers to be produced to Corporate Affairs.
Yes and that they were company papers, they were business papers? .... Yes, yes.
And you knew at that time that Roland had specifically said to both you and your husband on the 4th November that the Corporate Affairs Office was asking for resolutions? ..... Resolutions and other papers.
It didn't occur to you that these might be those resolutions and other papers? .... Yes they were part of what he – had to be produced.
That's right. And you knew that they had – at the time that you – or at the time they were being photocopied that Roland had signed them that morning? ..... On the other hand that was from resolutions or from Roland agreeing in some respects already. Quite some time earlier that these transactions were to take place.
I am putting it to you Mrs Gunnarsson Wiener that you knew that at the time that the documents were being photocopied or that it was intended that they would be produced to the Corporate Affairs Office as company records? .... Yes I understood that Roland was asked to produce and that these papers were part of the total documents which he would produce.
Yes and at that time Roland had signed the documents some 1 hour earlier? .... Yes but I did not exactly see him exactly sign these documents, he may have – I mean alright I wasn't quite sure, there was that much paper there.
Okay. And leaving aside the question as to your husband's directions in respect of these documents, you knew that these documents were calculated to mislead the Corporate Affairs Office? ... That was not my understanding at all.
You didn't know that? ... No."

A significant degree of evasiveness is apparent from the answers given by the accused. The evasive nature of certain answers is not to be explained by any lack of appreciation on the part of the accused of the significance of the questions which she was being asked. She struck me as an intelligent person, acutely aware of the significance of various matters. The full extent of her evasiveness is not apparent from the printed page. Seeing the accused in the witness box heightened my impression that she was deliberately seeking to evade answering awkward questions.

On the other hand, I found Roland Layh to be an impressive witness who gave his evidence in a calm and forthright manner. It was given without any trace of vindictiveness against the accused when undoubtedly she and his father have caused him considerable anguish as a result of their machinations. I accept Roland Layh's evidence and find that the accused did tell him that if he were asked at the resumed hearing whether particular documents purportedly but not in fact signed by him were signed by him, that he was to say that those documents bore his signature. As appears shortly, Roland Layh gave evidence during the course of the resumed hearing in accordance with what the accused had suggested.

It is appropriate to mention that during the course of his submissions as to the facts, which were obviously based on careful and detailed instructions, Mr Griffiths of counsel for the accused told me that she had done some of the photocopying at the State Library although when she gave evidence she claimed to have no memory of that.

The proceedings on 14 November 1988 were adjourned for lunch. During the course of the luncheon adjournment, the accused and the husband spoke to Roland Layh.

Roland Layh was asked by his father, in the accused's presence, as to what had occurred during the course of the morning. Roland Layh said he had been questioned about the subdivision of land by DG. His father further coached Roland Layh as to what he was to say in relation to those subdivisions, during the course of which the accused showed him purported resolutions relating to that matter. The combination of what the husband said and what the accused showed to her son provided Roland Layh with information so that he was in a position to give evidence at the hearing as to the subdivisional proposals as if he had been involved in them.

It is now appropriate to refer to what Roland Layh in fact said at the hearing on 14 November 1988 to see how it resulted from the actions of the accused to which I have referred. There was produced to Roland Layh a company form 61, relating to DG, noting inter alia his appointment as a director of that company on 1 January 1985. The document purported to be signed by him. In fact it was signed by the accused in his name. He was asked whether the signature was him. He said that it was. The accused had, of course, suggested that he should give such an answer to such a question. Roland Layh gave evidence that he would have instructed the accused to prepare and lodge that form 61 after the accused had advised him that it ought to be prepared. That evidence was false in that the document was prepared without Roland Layh's knowledge. That evidence naturally followed on from the evidence that Roland Layh had signed the document.

At the hearing there was produced to Roland Layh a company form 61, relating to AML, noting the appointment of one Vera Luise Wendland as an additional secretary of that company on 7 June 1984. That form purported to be signed by Roland Layh as secretary. In fact it had been signed by the accused in his name. He told the hearing that the signature was his. The giving of that false evidence was in accordance with the advice which had been given to him by the accused.

There was then produced to Roland Layh a company form 61 in respect of a company which I have not previously mentioned, Universal Nominees Pty Ltd, that being a company having two shareholders, namely TVF holding one thousand shares and CAG holding two shares. It appears that that form was lodged at incorporation. It was dated 15 February 1988 and noted the directors of the company as being Maisie Park and Roland Layh and the secretary as being Roland Layh. It purported to be signed by Roland Layh. In fact it was signed in his name by the accused. Roland Layh was asked whether the signature was his. He said that it was. That false answer had been suggested to him by the accused. Roland Layh told the hearing that he was "fairly sure" that the accused prepared this document under his instructions. He had given no such instructions. The false answer naturally followed on from the evidence that he had signed that document.

Roland Layh gave some evidence as to what he did as part of his duties as a director of CAG. He said that he asked for explanations from his parents about what was happening in order that he might make informed decisions and give instructions. In fact, he had sought no explanations and the occasion for him to make informed decisions or to give instructions relevant to the affairs of that company never arose. The thrust of what the accused and the husband had done was to provide information to Roland Layh as to the affairs of the various companies so that he could speak of them as though he had been involved at the times that various actions were taken and events occurred. Their intention was that he was to speak of the companies and their affairs, including CAG, as if he had been actively discharging his duties as a director. The answer given by him was in furtherance of that object which had been expressed to him by the accused and the husband.

Roland Layh was questioned as to future subdivision plans and in particular as to who would determine when relevant steps were to be taken. He said that his parents had explained to him about the laws of supply and demand in relation to land, that his father would advise him as to when the subdivision of particular land was possible and that he would then instruct him or the accused to prepare a request to the Council. In giving that evidence Roland Layh was talking of future intentions rather than past conduct. Undoubtedly, in his mind he did not anticipate that what he had said would happen, in fact would happen. Nevertheless, I do not consider that the giving of that evidence was capable of perverting justice in the relevant sense as recently explained by the High Court in the R v Rogerson, unreported 17 June 1992, so that the accused cannot be guilty of aiding, abetting or instigating it. I propose not to take this matter into account for the purpose of sentencing the accused.

Roland Layh gave evidence that he consented to act as a director of DG. In fact he had not consented to so act. Counsel for the accused told me, and it was not controverted by the Crown, that the accused believed that he had consented. That in itself is entirely irrelevant. What is relevant is that no action of the accused can be said to bear any relationship to her son giving this evidence. I propose to leave this matter out of account for the purposes of sentencing the accused.

Roland Layh told the inquiry that his duties as a director of DG involved hearing "what has happened", taking advice, obtaining explanations until he was familiar with particular matters, making decisions and signing documents prepared for him. Save and except that Roland Layh did sign some documents prepared for him, he did nothing of the sort. The evidence given by him was in accord with the thrust with what the accused and the husband by their words and actions had made plain to him, namely that he ought to give evidence to the effect that he and not they performed the duties normally performed by the directors of a company.

Apparently still in the context of DG, Roland Layh told the hearing that it was his parents' function to familiarise themselves with what occurred in relation to the company but always under his instructions and that when a decision was to be made or things needed to be done, they approached him for further instructions. For reasons I have already made clear that evidence was false and had been suggested to him by his parents.

Roland Layh was specifically questioned in relation to the sale of land by DG. He told the hearing that where there were any problems in relation thereto, the relevant contracts would be referred to him for his perusal, consideration and signature. Save that Roland Layh may have signed contracts of this nature on instructions from either or both of his parents, that evidence was false and was by way of suggesting that he carried out the duties of director. That is precisely what his parents had indicated to him he ought to say.

Roland Layh told the hearing that he made specific decisions to sell particular pieces of land. In fact he made no such decisions. They were made by the husband. Again, as the accused and the husband had suggested to him, he gave false evidence indicating that he managed the company.

As to DG generally, Roland Layh told the hearing that his parents advised him when developments arose in relation to that company, whereupon he would consider what ought to be done, he would give instructions and he would authorise correspondence and documents. Again, he never did anything of the sort. What he told the hearing was another instance of him giving evidence, as had been suggested to him, indicating that he managed the company.

Roland Layh was specifically asked as to the employment by DG of a surveyor, Mr Fisher, in relation to a subdivision. His evidence was that he believed that he had instructed his father to engage Mr Fisher. That was untrue. Roland Layh may have known that Mr Fisher had some involvement in a subdivision of DG. He may have signed a document indicative of Mr Fisher's involvement at some time. He may once have accompanied his father to Mr Fisher's office. Counsel for the accused asserted that all those things occurred and I proceed upon the basis that they did. Nevertheless, it was quite wrong to suggest that the husband was somehow acting on the instructions of his son. The matter of the engagement of Mr Fisher was specifically addressed in the Robigana subdivision report to which I have referred and which Roland Layh was told to read although no knowledge of its contents ought to be imputed to the accused. Nevertheless, the evidence was in accordance with the broad parameters of that which the accused and the husband, by their words and actions had suggested to him, namely that he was to say that he exercised the functions of a director.

Roland Layh told the hearing that the accused had prepared a form of agreement between DG and Mr Fisher after some discussion with him. The accused denied that she had prepared such a document but that merely goes to the falseness of the answer given by her son. The false evidence of Roland Layh that the form of agreement had been the subject of a discussion with him is relevant evidence. It was further evidence given by him in furtherance of what had been suggested by the accused and the husband namely, that he was to give the impression that he had been actively managing the affairs of the company.

Roland Layh told the inquiry that he passed on instructions in relation to the affairs of DG to his parents at intervals of about a fortnight. No such instructions were ever given. Again, that evidence was designed to create the impression that Roland Layh had been conducting the affairs of the company as a director. In the same category is the false evidence given by Roland Layh that prior to going to India he gave some written instructions to his parents as to the affairs of various of the companies and that he had asked his parents to prepare the books and records of DG.

On 14 November 1988 the hearing was further adjourned to a date and time to be fixed. In fact the hearing did not ever resume. Subsequent to 14 November 1988, Roland Layh had discussions with his wife about the predicament in which he found himself. She persuaded him to make full disclosure to the Commissioner for Corporate Affairs as to the deceits which he had practised upon the persons conducting the hearings on 4 and 14 November 1988. He did so and thereafter fully co–operated with officers of the Commissioner. In the circumstances it was no doubt considered unnecessary to further proceed with a formal hearing.

Shortly prior 17 January 1989 the accused telephoned her son and told him that she was forwarding to him by post further documents for him to sign. On 17 January 1989 Roland Layh received such documents which were in the form of various resolutions of DG and CAG. At the time the accused spoke to her son it was her intention that he would sign those documents and produce them or copies thereof on the resumption of the hearing as being resolutions in writing of the directors of the companies in lieu of being adopted at a meeting of the directors. She intended that her son sign them as a director or as governing director. Had they been signed they would have purported to have been signed on the dates appearing thereon which ranged from 15 November 1986 to 25 November 1988. None of those documents were ever signed by Roland Layh. He did not ever produce them in circumstances whereby he represented them to be extracts from the records of the companies. Nevertheless, it was the intention of the accused that her son do so. Had he done so, it would have amounted to the commission of the crime of perverting justice on his part.

As Roland Layh did nothing by way of perverting justice subsequent to 14 November 1988, the provision to him of these further documents and the accused's request that he sign them, did not result in any criminal conduct on his part. It follows that this conduct on the part of the accused could not amount to aiding, abetting or instigating.

Although the indictment particularizes count 2 in the alternative, namely that the accused did relevant acts by way of aiding, abetting and instigating Roland Layh to pervert the due course of justice or that she did them by way of herself perverting the due course of justice, the Crown did not put the case upon the latter basis. Counsel for the Crown told me that the accused was charged on count 2 as a principal in the 2nd degree and not otherwise. It follows that I will not take into account the particulars relating to the provision of the further documents and the accused's request to her son in relation thereto. By doing so, I also overcome the difficulty which otherwise would arise in that count 2 clearly would be duplex if it alleged as one crime some conduct amounting to aiding, abetting andor instigating Roland Layh to pervert the due course of justice (as to which the accused would be deemed to be a principal offender by the operation of the Criminal Code, s3(1)) and other conduct amounting the actual commission by the accused of the crime of perverting justice.

Finally I refer to the allegation that in November 1988 the accused told Roland Layh that if he "backed out" he would go to gaol. I heard evidence on this matter. I am not satisfied that any such statement was made. I note that although his wife claimed to have overheard such a statement, Roland Layh had no memory of it having been made. The accused denied making any such statement.

In summary, what the accused did was to the instigate her son to give false evidence at the hearing which extended over 4 and 14 November 1988 and to aid and abet him in that by furnishing him with information and documents, intending that such information and documents would be conveyed to and provided at the hearing. She did that in furtherance of the plan to deceive the persons conducting the hearing as to the true involvement in the affairs of the relevant companies of Roland Layh on the one hand and the accused and the husband on the other. The plain purpose of Roland Layh and of the accused was to divert the Corporate Affairs authorities from taking action by way of the prosecution of at least the husband for various breaches of the Companies (Tasmania) Code, at a time when the accused well knew that the husband had been acting unlawfully and was liable to prosecution.

There was another dimension to this crime. Not only was the accused concerned to divert attention at least from the husband, she was prepared to use her son, a young adult obviously not versed in corporate matters, to achieve her object to the extent of encouraging and assisting him to give false evidence on oath.

FACTS RELEVANT TO COUNT 3

It is appropriate to examine the particular respects in which the Crown alleges that the accused was concerned in the management of DG.

As I have mentioned, DG was engaged in various land transactions. On 5 November 1986 it entered into an agreement to sell 4.047 hectares of land to Leon Routley and Judith Wild for $29,000. On 5 January 1986 it entered into an agreement to sell 3 acres of land or thereabouts to John and Christine Hortle for $54,000. On 2 December 1986 it entered into an agreement to sell 4.047 hectares of land to Charles and Cynthia Fysh for $26,000. Mrs. Rosemary Hogg, a sales consultant employed by Richards Real Estate, was involved in each of these transactions. She was retained by the accused to sell the land which was sold to Routley and Wild. Having introduced those purchasers, Mrs Hogg prepared some documents, had them signed by the purchasers and handed them to the accused. Subsequently the accused handed Mrs. Hogg a form of contract. Mrs. Hogg had that executed by the purchasers and returned it to the accused who subsequently handed it back to Mrs. Hogg, purportedly executed on behalf of DG by Roland Layh. The agreement for sale to which Mr and Mrs Hortle were parties was prepared by Mrs Hogg after the accused had instructed her to endeavour to sell the subject land. There were extended negotiations as to price which, insofar as DG was concerned, were conducted on its behalf by the accused. Once the purchasers had signed the agreement, Mrs Hogg handed it to the accused who subsequently returned it to her, purportedly executed on behalf of DG by Roland Layh. The accused instructed Mrs Hogg to endeavour to sell the property eventually sold to Mr and Mrs Fysh. Those purchasers were introduced to the accused by Mrs Hogg who then had no further involvement in negotiations or the execution of an agreement for sale although her employer was paid a commission. The accused concedes that in the course of the dealings with Mrs Hogg in relation to those three parcels of land she exercised some indirect control over the affairs of DG although decisions of substance were ultimately made by the husband. That assertion is not challenged by the Crown.

From time to time, DG retained a firm of solicitors, Archer Bushby, or one of the firms which amalgamated to form that firm, to act for it in relation to the purchase and sale of land. Relevantly, DG's instructions were given by the accused to Mr Bellinger, a clerk employed by the firm. Mr Bellinger was engaged in connection with sales of land by DG to Domingos and Christine Fialho, Tony and Alexis Geale and Lewis Wilson and also in connection with the three agreements for sale already mentioned. The Crown solely relies on Mr Bellinger's statement (which was one of the supplementary proofs tendered) as setting forth the relevant conduct of the accused in instructing and engaging Archer Bushby. Apparently Mr Bellinger had told the accused that he had no desire to deal with or speak to the husband and consequently any discussions he had by way of seeking or obtaining instructions from DG were with the accused. Mr Bellinger's statement is somewhat short on detail (and I do not criticise him for that as he was speaking of routine conveyancing transactions in which he had been involved years earlier). The statement does not suggest that in fact the accused gave instructions except in relation to the transactions involving Fialho, Routley and Wild, Hortle and Geale. I propose sentencing the accused on that basis, she having conceded that, in instructing Archer Bushby, she was exercising some form of indirect control over the affairs of DG. Nevertheless I accept that all major decisions were being made by the husband and that what she did accorded with such decisions.

In relation to each of the transactions in which Messrs Archer Bushby were engaged, as well as a sale of certain land by DG to John and Christine Healey, the Crown alleges that the accused, acting on behalf of DG, negotiated the sale of the relevant land to the various purchasers. Having been originally introduced to the accused by Mrs Hogg, Mr Fysh inspected the subject land in the company of the accused. During the course of that inspection price and other terms of agreement were discussed by him with the accused, although it is not suggested that the accused had any authority to vary the price. The accused had various discussions with Mr Fysh in relation to questions of access to the land which did not have a frontage on a public street. The accused also showed Mr Fialho the land which he and his wife ultimately purchased. The accused told him that the land was for sale at a price of $40,000. Mr Fialho subsequently met the accused again when he offered to pay $35,000, which offer the accused ultimately accepted during the course of a telephone conversation. The accused had some discussions with Mr Routley and Ms Wild in relation to the purchase by them of land from DG. Counsel for the Crown relied upon a statement of Ms Wild as particularizing what the accused had done in this context. However, beyond disclosing a letter wherein the accused apparently acknowledged a discussion with these persons in November 1990, there is nothing in the material indicating the nature or purpose of such a discussion. I do not propose taking any discussions between the accused and Mr Routley and Ms Wild into account. The Crown alleged that the accused had shown Mr and Mrs Hortle the land which they ultimately purchased and that she negotiated the sale price with them. That was denied by the accused and the Crown did not seek to establish relevant facts by evidence. I do not take this matter into account. Mrs Geale spoke to the accused in response to a newspaper advertisement offering for sale the land which she and her husband ultimately purchased. As a result, Mr and Mrs Geale inspected the land in the company of the accused and, over a period of some days, Mrs Geale negotiated with the accused as to price upon which there was eventual agreement. Mr Wilson also telephoned in response to an advertisement and then went to the accused's house where he had negotiations with her as to the price of the land the subject of the advertisement, being the land which ultimately he purchased. The accused showed Mr Healey the land which he and his wife purchased. On a later occasion, when Mr Healey was a patient at the Evandale Hospital, the accused and the husband visited him. The husband there and then drew an agreement for sale which was apparently signed by the parties, the husband signing on behalf of DG. David Foster–Bailey and his wife purchased land from DG in July 1988 as a result of seeing an advertisement in the newspaper. He telephoned the number shown in the advertisement, spoke to the accused and inspected the land with her. There were no negotiations as to a price as Mr and Mrs Foster–Bailey paid the asking price.

The Crown alleges that in about March 1988 the accused entered into an agreement on behalf of DG with one Geoffrey Chilcott for the relocation of a house from Warrane to Deviot. The Crown relies on the statement of Mr Chilcott. In its terms that statement does not assert that the accused entered into such an agreement on behalf of DG. The accused denies that she did so and the Crown has not sought to establish that she did. I do not propose taking this matter into account.

In March 1988 the accused and the husband negotiated with the Australia & New Zealand Banking Group Limited for a loan of $38,000 from the bank to DG. The loan funds were duly paid by DG. I accept that the accused was not involved in the decision to apply for a loan but nevertheless, she and the husband saw the bank manager at length, seeking the loan and providing information in relation to it. Ultimately the accused obtained the loan monies and dealt with them. In due course the loan was repaid in full.

In relation to another loan made by the Australia & New Zealand Banking Group Limited to DG, this time in December 1987 for $50,000, the accused completed a statement of the financial position of Roland Layh, arranged for him to sign it and arranged for him to execute a form of guarantee on his part of DG's obligations to the bank. The husband had prepared the draft of the statement of financial position (which incidentally was misleading in form). It was essential that the accused do what she did in relation to this loan as without it the bank would not have made the advance to DG.

The accused communicated with the bank from time to time and arranged for various portions of each of the two loans to be drawn from time to time. On numerous occasions she negotiated with the bank as to arrangements for the repayment of the loans, including agreeing on the capital reductions to be made on occasions when portions of the land which had been mortgaged to the bank by way of security were sold, necessitating a partial discharge of mortgage.

On 23 November 1988 DG wrote to Mr Lindsay, an officer of the bank, seeking an additional advance of $16,500. That letter was signed on behalf of DG by "R G Layh, director". The Crown asserted that the accused had signed in that name. The accused denied having done so and asserted that she had done no more than type the letter in the terms drafted by the husband and that she then arranged for Roland Layh to sign it. The Crown did not seek to call evidence to the contrary, so I am to deal with the matter upon the basis of the version of the facts put forward by the accused. On that version it could not be said that the accused did anything which could be said to have been in breach of the Companies Code, s227(1).

The Crown alleged that, together with the husband, the accused negotiated with AGC (Advances) Limited, which negotiations resulted in a loan of $70,000 being made to DG. The transaction was dealt with on behalf of AGC (Advances) Limited by one David McDavit who received a form of proposal for a loan by DG for purposes associated with the completion of a subdivision. Shortly thereafter, Mr McDavit met with the accused and discussed the proposal including matters relevant to the security available and DG's ability to repay the loan. At that meeting the accused produced to Mr McDavit a document headed "Letter of Intent" in the form of heads of agreement between DG and Co–operative Estate Managers Limited of the one part and Barnett Bros (Vic) Pty Ltd of the other part, dated 1 October 1987, as to the logging of certain lands by Barnett Bros (Vic) Pty Ltd in return for which it was to pay certain royalties to DG. The accused's purpose in producing this document can only have been to further the loan application. There were subsequent meetings with Mr McDavit in furtherance of the loan proposal. Those meetings were attended by the accused and the husband. Both of them purported to be acting on behalf of DG at all times.

I have already referred to a sale of land by DG to Mr and Mrs Healey. It appears that Mr and Mrs Healey approached Australian Guarantee Corporation Limited with a view to obtaining a loan to enable them to complete the purchase from DG. A subsidiary of that company, AGC (Advances) Limited, agreed to make the loan, but only on condition that DG guaranteed Mr and Mrs Healey's obligations. On 24 November 1987 DG wrote to AGC (Advances) Limited confirming that it was prepared to furnish such a guarantee and enclosing particulars of the financial position of DG. The letter was drafted by the husband, typed by the accused and signed by her on behalf of DG. To secure the contingent liability of Mr and Mrs Healey to DG in its capacity as surety, the former executed a mortgage in favour of DG to rank after the mortgage to AGC (Advances) Limited. The husband carried out the negotiations in relation to that but in the presence of the accused. She arranged for Mr and Mrs Healey to execute the mortgage to DG. It is not disputed by the accused that in doing what she did she was exercising some indirect control over the management of DG.

As I have mentioned, DG was engaged in the subdivision of certain land. That required approvals from the Beaconsfield Council. The particular officers dealing with such matters were the municipal engineer, Mr Bennett, and the planning officer, Mr Sluce. Generally, when they dealt with DG, their dealings were with the accused. However, the accused asserts, and Mr Sluce in his statement appears to recognise, that at all times the accused acted in no greater capacity than as a messenger, relating to Mr Sluce and Mr Bennett what the husband had instructed her to relate and then conveying back to the husband whatever those officers may have told her. In those circumstances it cannot be said that the accused acted in any way where she exercised or was capable of exercising any discretionary authority. The Crown has not sought to lead evidence to the effect that the accused's role was greater than that put to me on her behalf. Accordingly, I must proceed on that version of the facts. The accused's dealings with the Beaconsfield Council did not involve her being concerned in the management of DG. I will not take this matter into account.

It was put to me on behalf of the accused that until August 1988 she was uncertain as to the precise consequences which flowed from her status of being a bankrupt. That proposition was not disputed by the Crown. To the extent that the accused was uncertain as to what she was prohibited from doing, she made no endeavour to ascertain the strict legal position until August 1988 when she read a copy of the Companies (Tasmania) Code, s227(1). It is of course not suggested that her uncertain state of knowledge can constitute any defence. Her plea of guilty acknowledges the contrary. That uncertainty is put in mitigation, but in all the circumstances it ought to be given little mitigatory effect.

Whilst the accused was involved in the management of DG in relation to the sale of land by DG and the borrowing of money by DG, in circumstances where it is conceded by the accused that she was exercising some indirect control over the management of the company, the substantial effective control was being exercised by the husband. It is appropriate to sentence the accused for this offence upon the basis that her involvement in the management of DG was rather minor, and in circumstances where it mattered little whether she was so involved or not because the husband had resolved to, and in fact did, conduct the affairs of DG as though he had the sole and unfettered right to have it do whatever he determined it ought to do. What the accused did, if not in direct obedience to the husband's commands, was in furtherance of objects which he had plainly expressed.

FACTS RELEVANT TO COUNT 5

This count also relates to a breach of the Companies (Tasmania) Code, s227(1) but in relation to AML. Again it is appropriate to examine the particulars contained in the indictment of the acts on the part of the accused said to constitute this breach of s227(1).

The Crown alleges that the accused conducted negotiations and dealings with the Beaconsfield Council in relation to the subdivision by AML of land at Exeter. The accused contended that her involvement was similar in character to her involvement in similar dealings on behalf of DG. The Crown did not seek to lead evidence to establish the contrary so that I proceed in accordance with the accused's version. For reasons which I have already expressed, the admitted acts of the accused could not be said to constitute conduct falling within the prohibition expressed in s227(1). I leave this matter out of account in sentencing the accused.

In June 1988 the accused, acting on behalf of AML, applied to the Australia & New Zealand Banking Group Ltd for an overdraft facility in the princely sum of $800. It was put to me for the accused that her primary purpose in seeking that overdraft was to provide funds for essential household purposes, the husband having declined or having been unable to make any proper provision to meet such expenditure. Counsel for the accused told me that she pleaded with the husband for money whereupon he suggested that she see the bank manager, Mr Crisp and apply for a loan in the name of AML, which she did. The overdraft facility was granted and it was utilized so that some household expenditure might be met and to discharge certain debts of AML. An examination of AML's bank statements, relied upon by the Crown for other purposes, suggests that the accused's explanation may have been grossly exaggerated. Nevertheless as the Crown has not sought to dispute the accused's version I proceed upon the basis of what was put to me for the accused.

The accused and the husband jointly signed numerous cheques drawn on the account of AML without the knowledge of the notional directors and in circumstances where, although the husband may have determined which cheques were to be drawn, he and the accused, by signing those cheques, were conducting the financial affairs of the company as they thought fit. Largely those cheques were drawn in payment of amounts due to the company's creditors.

On 21 September 1987 the husband asked the accused to seek a further loan of $4000 to AML from the Australia & New Zealand Banking Group Limited. The accused attempted to obtain such a loan by approaching the manager, Mr Crisp. He declined to assist.

The offence charged in count 5 largely concerns the accused having been a party to dealings with money standing to the credit of AML's bank account or borrowed by it. I infer that had the accused not been prepared to sign cheques that the husband would have arranged matters so that the accused's signature was not required. The observations which I have made as to the seriousness of the offence charged in count 3 equally apply to this count.

FACTS RELEVANT TO COUNT 17

Count 17 charges the accused with dishonestly obtaining a financial advantage in that on 17 July 1986 by a deception, she dishonestly obtained for herself, or the husband, or for companies or other entities controlled by them, or for two or more of them, from the Commonwealth Bank of Australia, a financial advantage in the sum of $48,000.

A loan of $48,000 was advanced by the bank, notionally to Roland Layh, on the security of a mortgage given over land at Exeter comprised in Folio of the Register Vol 2540, Fol 20. That mortgage is dated 23 January 1987 and was registered on 27 March 1987. Immediately before the registration of the mortgage, there was registered a transfer of the subject land from CAG to Roland Layh.

The charge against the accused relates to relevant acts of the accused in connection with the application for the loan which was made in the name of Roland Layh for the stated purpose of enabling him to purchase the land. It is the Crown's case that Roland Layh was put up as no more than a dummy purchaser, it being intended that the control over, and the beneficial ownership, of the subject land remain with the husband and that the accused was well aware of that. The accused does not concede that she knew that her son was not a genuine purchaser but she does concede that she understood that there was an expectation that Roland Layh would deal with the land in accordance with the directions given by the husband. Nevertheless she claims that she did not exclude the possibility that her son might derive some financial benefit from his ownership of the land. I will take that view of the facts for the purposes of sentencing the accused. In itself it does not go directly to the commission of the crime but it does set the scene to explain what occurred and why it occurred.

Some further background facts confirm that it was never the husband's intention that his son would ever be permitted to exercise any of the normal incidents of ownership of the land nor that he would ever be permitted to derive any benefit from it. The land had been owned by AML. It had borrowed moneys from HB & P Nominees Pty Ltd, a company associated with Archer Bushby, and had given a mortgage to that company over the land to secure the repayment of the loan. AML defaulted. The mortgagee was threatening to exercise its power of sale. The moneys secured by the mortgage were repaid, notionally by CAG, out of moneys borrowed by Roland Layh from the bank and by Australian Investors Social Progress League Inc. from another bank, in circumstances to which I refer shortly. At the time that HB & P Nominees Pty Ltd was repaid it appears that the bank had taken some security from Roland Layh but not including a mortgage over this land. Upon CAG repaying the moneys secured by the mortgage to HB & P Nominees Pty Ltd that company transferred its mortgage to CAG. In due course CAG transferred the land to Roland Layh, purportedly in the exercise of its power of sale under the mortgage. Conveniently, the transfer had the effect of removing from the title a subsequent mortgage given by AML to the Official Trustee in Bankruptcy. Notwithstanding the transfer to Roland Layh the husband continued to deal with this land without regard to his son's supposed ownership of it.

No direct approach was made to the bank for the provision of the relevant finance. The initial approach came through one Phillip Smith then carrying on business as finance broker in Launceston. The accused went to see Mr Smith in about June 1986. She told him that she was attempting to arrange finance on behalf of her son Roland Layh who was working in Hobart so as to enable him to purchase land from some entity or person related to the accused. On 18 June 1986 Mr Smith wrote to the Commonwealth Banking Corporation in Launceston, purportedly on behalf of Roland Layh as his client, seeking a term loan of $52,000 to be secured over the land contained in Folios of the Register Vol 3321, Fol 54 and Vol 2540, Fol 20. Accompanying that application were a number of documents, namely a copy of Roland Layh's income tax return for the year ended 30 June 1985, a document purporting to set forth particulars of Layh's trading in real estate for the two year period ending May 1986, purported particulars of Layh's assets and liabilities as at 31 May 1986, copies of valuations and titles and a copy of a letter dated 12 June 1986 purportedly from Roland Layh to Mr Smith referring to his employment, setting forth his expected income and expenditure for the year 1986–1987, setting forth particulars of his liabilities and stating that he had set aside a reserve for contingent tax liabilities arising out of his trading in real estate.

All the documents accompanying Mr Smith's letter to the bank had been provided to him by the accused. Roland Layh at that time was quite unaware that any application for a loan was being made on his behalf. The letter, purportedly from him, which accompanied Mr Smith's letter had been signed by the accused in his name. Whilst the husband had drafted that letter, the statement of trading and the statement of assets and liabilities, they had been typed by the accused who must have been aware of their contents at the time that she typed them.

By providing those documents to Mr Smith the accused impliedly represented to him that she had Roland Layh's authority to make the application. She did not have that authority. More importantly the documents which she handed to Mr Smith, intending that they be used to support a loan application, were deceptive in the following respects:

(a)The copy income tax return indicated that Roland Layh had earned gross income from DG in the sum of $18,200 for the year ended 30 June 1985. Whilst he may have earned some small sums from intermittent casual employment with DG during that year, the total of such sums could not have been more than a small percentage of $18,200 and that fact was well known to the accused.
(b)As is conceded by counsel for the accused, the trading statement suggested that Roland Layh was a successful property dealer who had earned income from that pursuit as a result of his efforts when such property dealings as had been conducted in his name had been carried on by the husband.
(c)There was no reasonable basis for suggesting, as was stated in the letter dated 12 June 1986, that it was anticipated that Roland Layh would earn salary of $19,760 for the year ended 30 June 1987.
(d)It was quite untrue to say that Roland Layh, as was stated in that same letter, was then employed by DG. At that time Roland Layh was a university student living in Hobart having some casual employment at a hotel.

All the documents containing the misrepresentations (other than the tax return) were typed by the accused. Whether or not she drafted the form of those documents is of little consequence. The fact is that when she typed them she must have known that some of the information therein contained was false or misleading. She then took those documents, together with other documents, to Mr Smith intending that they be used in furtherance of a loan application to be made on behalf of Roland Layh. I accept that some time prior to the making of the application for the loan, the husband had indicated to Roland Layh that it would be appropriate for him to purchase the land and to borrow money for the purpose, but it has not been suggested that Roland Layh in any way authorised the accused or the husband to pursue the matter to the extent of making a loan application on his behalf. Similarly it has not been suggested that Roland Layh gave any authority for the making of representations as to his financial circumstances or for the signing of a letter in his name. Certainly, Roland Layh became aware that something of the sort had occurred because the accused arranged for him to come to Launceston and accompany her to the bank in connection with the proposed advance by the bank. Whilst the accused and Roland Layh were at the bank in Launceston the documents sent to it by Mr Smith were given some consideration. The accused then became aware of the income recorded in Roland Layh's income return. She immediately realised that the statement therein as to her son's income was quite incorrect. Nevertheless she did nothing by way of informing the bank, which had not then agreed to make any advance, that the taxation return contained erroneous information. The bank agreed to lend Roland Layh $48,000.00.

What the accused had done was represent to the bank that Roland Layh was in employment in respect of which he was receiving a significant annual income and that he had demonstrated by his past activities that he was an astute and successful trader in real estate. In fact, Roland Layh was not in any form of employment beyond some casual work, presumably such as is commonly obtained by university students. In fact, he had done nothing by way of demonstrating any ability to engage in trading in real estate, successfully or otherwise. Those matters were undoubtedly relevant to the bank in its consideration of the loan application. Whilst questions of the security offered no doubt were relevant, it is unlikely that the adequacy of the security offered alone would have induced the bank to make the advance.

In August 1986 the first part of the advance, $24,000, was paid over to Archer Bushby, supposedly acting for Roland Layh. At about the same time the firm received the sum of $10,000 from the Australia & New Zealand Banking Group Limited. That sum appears to have been advanced by that bank to the Australian Investors Social Progress League Inc. The total of those two sums, together with some small amount of interest earned thereon, was applied by Archer Bushby largely in repaying the mortgage to H B & P Nominees Pty Ltd and by way of a cheque for $6000 payable to Roland Layh. Apparently that cheque did not ever come into his hands but was deposited to the credit of an account at the National Australia Bank Limited in the name of TVF. All in all it was a most unusual way in which to be dealing with funds which came into the hands of the solicitors (although I hasten to add there is no suggestion that the firm acted otherwise than in accordance with what they understood to be proper instructions) in their capacity as solicitors for Roland Layh who was borrowing the funds for the purpose of completing a purchase from CAG.

In September 1986 Archer Bushby received the $24,000 balance of the loan. Some of that they applied in payment of costs and disbursements. Of the amount received by them they paid $10,000 to the Australia & New Zealand Banking Group Limited (apparently in repayment of the advance in that amount made to Australian Investors Social Progress League Inc to which I have referred) and $12,946.26 in the form of a cheque payable to Roland Layh. That cheque did not come into Roland Layh's hands. An account in his name was opened with the Tasmanian Permanent Building Society and the cheque deposited to the credit of that account. Thereafter, the accused operated that account and applied the monies for the benefit of herself, the husband and their various companies.

In essence the transaction whereby Roland Layh became the registered proprietor of the land and borrowed funds from the bank, ostensibly to enable him to complete the purchase, was no more than a device whereby the accused, the husband andor their companies could raise money. There was never any intention or expectation that Roland Layh would, or even would be permitted to, exercise the normal incidents of ownership of the land.

FACTS RELEVANT TO COUNT 18

By this count the accused is charged with dishonestly obtaining a financial advantage in that on or about 29 October 1984, by a deception, she dishonestly obtained for herself or the husband or for companies or other entities controlled by them, or for two or more of them, from the National Australia Bank Limited a financial advantage in the sum of $65,000. This count arises in circumstances bearing some similarity to count 17, except that it relates to a loan obtained from a different bank.

Of relevance to this count is land comprised in Folio Register, Vol 3439, Fol 76. As long ago as 1976 that land was owned by The Australian Co–operative Travel Society Limited and Co–operative Property Developments of Australia Limited (both apparently associated with the accused and the husband) as tenants in common in unequal shares. On 14 January 1980 there was registered a transfer of the land to CVN. On 5 January 1983 there was registered a transfer to Danglesea Nominees Pty Ltd, a company apparently associated with a Hobart solicitor. Counsel for the Crown was unable to tell me whether that company held the land beneficially or otherwise. On 9 January 1984 that company transferred the land to Roland Layh and the circumstances of that transfer are relevant for present purposes. To complete the history, I note that by transfer registered on 31 October 1989, Svea Estates (Vic) Pty Ltd (yet another company associated with the accused and the husband) became the registered proprietor. At various times the land has been mortgaged to TVF, CAG, Svea Estates (Vic) Pty Ltd and one Jon Kindblom (who apparently has been a director and secretary of various of the Gunnarsson–Wiener companies at various times).

On 19 June 1984 the accused and Roland Layh called on Mr White, assistant manager of the National Australia Bank Limited at 76 Liverpool Street Hobart. They had had no previous dealings with that bank. Apparently they were introduced to the bank by the solicitor with whom Danglesea Nominees Pty Ltd was associated. Mr White was told that the accused and her son intended to purchase for $75,000 a block of subdivisional land at Exeter owned by Danglesea Nominees Pty Ltd and that a loan of $55,000 was sought for this purpose. During the course of those discussions the accused handed to Mr White several documents. One was headed "Summary of Proposal" which, in fact, indicated that Roland Layh alone was to be the purchaser of the land. Another of those documents was a statement of assets and liabilities of Roland Layh. At the time she produced those documents to Mr White the accused well knew that the statement of assets and liabilities contained inter alia a statement that, by way of an asset, Roland Layh had $30,000 being the proceeds from the sale of another property. He had no such asset and the accused knew that. On 20 August 1984 the accused and Roland Layh had a further meeting with Mr White when he was told that a loan of $65,000 was sought. On 14 September 1984 the bank agreed to lend Roland Layh $65,000. Security for this loan was given over the property and the loan was advanced. Of the loan the sum of $52,428.07 was paid to Danglesea Nominees Pty Ltd and the balance was paid to the credit of a savings account with the bank. Whilst that account was in the name of Roland Layh it was controlled by the accused who applied the funds therein for the benefit of herself, the husband andor various companies and entities associated with them.

The relevance of the statement that Roland Layh had $30,000 on hand appeared from the information provided to Mr White at the first meeting. He was told that although the purchase price was $75,000, a loan of $55,000 only was required. The summary of the proposal included a cash flow projection for the proposed subdivision of the land which took into account $10,000 on hand. In other words, the availability of $30,000 was critical to the overall viability of the proposal in that out of Roland Layh's own funds $20,000 was required to complete the purchase and $10,000 was required to fund the development of the subdivision. The Crown particularised a number of other facts and suggested that in certain respects they added to the deception. The accused maintained that the only deception practised by her was that she misrepresented the fact that Roland Layh had $30,000 cash on hand. As the Crown did not seek to establish anything further by way of evidence, this count is to be dealt with on the basis put forward by the accused.

Nevertheless, although Roland Layh became the registered proprietor of the land, he did so upon the basis that the land would be under the effective control of the husband. Roland Layh had no expectation that he would derive any benefit from it. He did not understand to be doing anything other than assisting his father retain control of the land. It was to be dealt with in the same way as the land relevant to count 17.

THE ACCUSED'S RELATIONSHIP WITH THE HUSBAND

Central to the matters put in mitigation was that the accused's criminal conduct consisted of things which were done by her at the bidding of the husband. It was put to me that the husband had a paranoid personality, suffered from delusions and that he had subjected the accused to such violence over a long period of time that it resulted in her suffering from a battered woman syndrome which explained her conduct. Although some support for the suggestion that the husband was guilty of violence towards the accused is to be found in statements of Roland Layh and Mr Bellinger which were put before me, I am largely in the hands of the accused for the purposes of ascertaining the extent of the violence. Had this been a matter the subject of sworn evidence from the accused I might have found it difficult to be satisfied that alleged acts of violence occurred. However the factual basis is not in dispute. It is to be found in matters put to me by counsel for the accused and related in evidence by Mr Joblin, a clinical psychologist called by the accused. In the course of Mr Joblin's evidence he related the history related to him by the accused. The Crown agreed that I could proceed upon the basis that the facts so related had been established.

The accused was born in Austria and the husband was born in Germany. She is aged 52. He is aged 67. In 1962 the husband had been resident in Australia for some time. He had been married and divorced. He placed an advertisement in an Austrian newspaper to which the accused responded. They corresponded for some time and the accused then came to Australia. She married the husband within a week. They lived in South Australia. Roland was born the following year. After his birth the husband first committed an act of violence on the accused. Later a second son was born. Whilst living in South Australia the accused was the victim of some violence at the hands of the husband but quite infrequently. In 1971 the accused again was pregnant. The husband made up his mind that the accused was carrying a female child. He was obsessed with the supposed uselessness of females generally. As a result of his pressure the pregnancy was terminated. The memory of that has continued to distress to the accused.

In 1969 the husband had been instrumental in establishing a number of companies and other corporate entities in South Australia. Those bodies acquired land in Tasmania. In 1972 the accused and the husband moved to Tasmania so that he could be engaged in the development of the land in Tasmania. The husband's intention was to develop a holiday resort at Paper Beach. His efforts were not rewarded with success. In 1974 the husband attempted suicide. During most of 1975 he remained at home crying, claiming that he and the accused would have to kill their children and themselves. In 1976 the husband received some psychiatric treatment. Counsel tendered a letter from the husband to the accused, dated 29 October 1979. It provides evidence of an obviously disturbed mind. In 1980 the winding up orders and sequestration orders to which I have previously referred were made. During this period the husband was guilty of frequent bouts of violence towards the accused. On one occasion he knocked her unconscious in front of their children. It appears that he blamed everybody but himself for his troubles. On two occasions he contemplated particular acts of violence towards others. He commenced to prepare a bomb which he intended to use to murder a professional person whom he saw as having been in some way responsible for his financial problems. He made plans to gas one of the directors of the South Australian societies who had crossed him.

Mr Joblin described the accused as being a classic example of battered woman syndrome whereby women stay in a violent relationship because they can see no alternative. It results in the woman becoming passive rather than active and accepting a situation of learned helplessness. He expressed the view that the actions of the accused which constitute the criminal conduct the subject of the indictment, may have been motivated by her seeking to avoid a confrontation with the husband and by way of placating him. In her article "Gender inequity in Australian Courts" published in the April/May 1992 ed of Criminology Australia, Patricia Easteal expressed views in accord with what Mr Joblin told me, at 10 – 11:

"What can be the results for someone living in this situation? Quite simply, she may become a hostage in her own home. Unlike a political hostage who is kept behind doors without the physical means of escape, the woman develops the psychological inability to unlock the door. This is referred to as the condition of learned helplessness which limits the ability to see or make choices. Over time the woman's self–esteem plummets as the emotional abuser tells her clearly, 'It's all your fault'. She may become isolated as battering is still a shameful and private action in our culture. And, most importantly, her life becomes full of terror. She never knows when the violent partner will strike. Life is centred on survival, walking on egg shells, trying to please him in order to avert the physical abuse."

Whilst I accept the opinions expressed by Mr Joblin, his evidence nevertheless is of somewhat limited value. He was first retained about a week before giving evidence. At that stage he was merely provided with several letters which had passed between the accused and the husband. He did not see or speak to the accused until the day before he gave evidence. He had a very limited understanding only as to the criminal conduct alleged against the accused and did not give specific consideration to particular aspects of the accused's conduct by way of expressing the view as to the way in which such conduct might have been the product of the husband's behaviour. In this context he did little more than to give evidence that in general the accused wished to placate the husband and avoid any confrontation with him.

However it is undisputed that the husband was guilty of violence towards the accused; that he was a strong–willed person who basically conducted the affairs of the various companies as if they were his own; that he brooked no interference in his conduct of the affairs of those companies; and that he was the instigator of all of the criminal activities on the part of the accused. The degree to which the husband's conduct induced the accused to commit the various offences is relevant for sentencing purposes.

Specific aspects of the husband's behaviour which the accused relied upon as relating to particular counts were as follows:

Count 1

When the accused was interviewed by Mr Dwyer she was frightened and concerned to protect the husband. She was fearful that he would become aware of whatever she told Mr Dwyer. She had been told by the husband not to mention his involvement in the companies and gave answers to cover up this involvement.

Count 2

By particular reference to the documents prepared for production to the hearing by Roland Layh, which in fact he did produce, the husband told the accused that everything had to be ship–shape. He worked long hours in an agitated state producing relevant documents. She assisted him. The accused found the husband's demeanour frightening.

Count 3 and 5

At all times the husband was concerned to remain in control of the companies even though he was prohibited from acting as a director. The accused participated therein to the extent I have found. However, it was not expressly put to me that she had any particular fears as to what he might do had she not co–operated. Rather it was put that she was concerned to carry out his wishes and that she did the acts complained of at a time when she was uncertain as to whether or not it was lawful for her to do those acts.

Counts 17 and 18

No particular threats or fears relevant to the commission of the acts constituting these crimes was alleged. The general background to which I have referred in relation to counts 3 and 5 is relevant.

Counsel for the Crown submitted that I ought to examine the way in which the accused dealt with questions asked of her during her interview by Mr Dwyer. He submitted that those answers indicated that she was well able to handle herself and that that suggested the accused acted independently. During the course of that interview and in the course of the evidence which she gave before me, she displayed that she was far from being unintelligent and was prepared to seek to avoid answering questions. Nevertheless those matters do not persuade me that I ought to reject the proposition that the accused's conduct significantly was in response to the husband's violence and her fear thereof. I accept that proposition although there was some paucity of evidence.

OTHER MATTERS RELEVANT TO SENTENCE

Counsel for the Crown submitted that the offences were serious and required the imposition of deterrent sentences. Insofar as breaches of the Companies (Tasmania) Code, s227(1) are concerned, counsel submitted that the period of time over which the accused acted in breach of that subsection, her apparent knowledge of the criminality of her actions and the fact that she used her own son as a front were indicative of the offences being serious. I do not consider that those offences, to the extent that I have found them to have been made out, are at the more serious end of the scale of offences of this nature. It is important not to sentence the accused for conduct which was not hers but the husband's. The accused's involvement in the management of the companies was minimal compared to that of the husband. It is undoubted that had she not done what she did do, the husband would have controlled the companies in much the same way as in fact he did.

The breaches of s252A of the Criminal Code ought not to be characterised as being the most serious examples of crimes of this nature involving the sums of money which were involved. The nature of the deception practised by the accused was to puff up the acceptability of her son as a borrower by the provision of false information as to his financial position, business experience and prospects. These are not cases where, by a deception, money are passed over without consideration and effectively lost to the owner. The National Australia Bank Ltd suffered no loss although is far from certain whether the Commonwealth Bank will find itself in that position. Nevertheless, substantial sums were obtained. Rather than having lent money to a desirable borrower, having the prospects of being able to repay the loan as and when agreed, each bank obtained a borrower who might have been considered quite unacceptable as a borrower for the sums involved had the true position been known at the time the accused practised her deceptions.

It is in relation to counts 1 and 2 that the conduct of the husband towards the accused is of particular relevance. Had it not been for the very difficult personal circumstances in which she found herself vis–a–vis the husband, and her fear of him, the accused might not have been motivated to commit the crimes of perverting justice. By far the most serious of these two crimes is that charged by count 2. As a result of conduct on the part of inter alia the accused, Roland Layh was induced to give extensive false evidence on oath. The crime is analogous to perjury. In some ways it might be thought that what the accused did was worse than perjury. Not only was the accused instrumental in part in having false sworn evidence given but she induced another person, her own son, quite inexperienced in the ways of the world, to give that evidence.

Leaving aside special matters of mitigation, I consider that a substantial period of imprisonment is called for on this count. All other offences are of lesser degrees of seriousness.

There were various other mitigatory matters urged upon me including the accused's otherwise good character and her present employment. Mr Joblin expressed the view that the accused was remorseful, although he acknowledged that he had difficulty in ascertaining the extent to which her feelings were those of remorse and the extent to which they were those of apprehension as to the outcome of the present proceedings. Of some relevance in this context is that there has been no suggestion that the accused has offered to co–operate with the authorities in unravelling the affairs of the various companies, although it is now a year since the husband left her and departed from Australia. My observations of her in the witness box did not give me the impression that she was particularly remorseful.

CONCLUSIONS

The husband's conduct was the complete antipathy of proper commercial morality. It is necessary to be astute not to punish the accused for his conduct. At the same time she did the various acts the subject of the various charges to which she has pleaded guilty in furtherance of the husband's schemes. Conduct of the type the accused engaged in cannot be countenanced. Others who might be minded to act in like manner ought to be aware that such conduct is criminal in nature and will be punished accordingly.

Sentences of imprisonment are appropriate and, had it not been for the conduct of the husband towards the accused, it would have been appropriate to send the accused to prison immediately. The nature and circumstances of that conduct persuade me that such sentences ought to be suspended.

Accordingly the accused is sentenced to the follow terms of imprisonment:

Count 1 –        3 months
Count 2 –        9 months
Count 3 –        1 month
Count 5 –        1 month
Count 17–       3 months
Count 18–       3 months

The sentences imposed on counts 1 and 2 will run concurrently. The other sentences will run concurrently with one another but commencing at the expiration of the sentences imposed on counts 1 and 2. The operation of all sentences is wholly suspended on condition that the accused is of good behaviour for 2 years.

R v Gunnarsson-Wiener

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established