R v Kerr
[2013] QCA 134
•31 May 2013
SUPREME COURT OF QUEENSLAND
CITATION:
R v Kerr [2013] QCA 134
PARTIES:
R
v
KERR, Victoria Ann
(appellant)FILE NO/S:
CA No 220 of 2012
DC No 17 of 2012DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Cairns
DELIVERED ON:
31 May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
27 February 2013
JUDGES:
Fraser and White JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the appellant was convicted at trial of dishonestly applying to her own use a sum of money with the circumstance of aggravation that the sum was more than $30,000, namely $86,000 – where the appellant was authorised to withdraw money from the complainant’s account, which was controlled by the firm at which the appellant worked, when given instructions by the complainant – where, on a number of occasions between 19 March 2007 and 14 November 2008, there were cash withdrawals from the complainant’s account which were not authorised – where the complainant discovered that the funds were missing after making an enquiry in 2010, after the appellant had left the firm – where the Crown alleged at trial that the appellant had fraudulently withdrawn the money from the account – where the appellant contended that the prosecution failed to disclose documents referred to during the Crown case – where the appellant contended that the questioning of her by the trial judge was inappropriate, the summing-up was unbalanced, and complained of defence counsel’s conduct at trial – whether a miscarriage of justice occurred
Criminal Code 1899 (Qld), s 408C(1)(a)(i)
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, cited
COUNSEL:
The appellant appeared on her own behalf
S P Vasta for the respondentSOLICITORS:
The appellant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: After a five day trial in the District Court the appellant was found guilty by a jury of an offence against s 408C(1)(a)(i) of the Criminal Code that between 19 March 2007 and 14 November 2008 she dishonestly applied to her own use a sum of money belonging to Beverly Peter Swane, with the circumstance of aggravation that the property the appellant obtained from her dishonesty was of the value of more than $30,000, namely $86,000.
The appellant has appealed against her conviction on the ground that there was a miscarriage of justice arising from error and inadequacy in the trial judge’s directions to the jury. I will discuss the grounds of appeal after I have outlined the evidence at the trial.
Outline of the evidence at trial
The complainant, Mr Swane, was a railway worker resident in England. His father moved to Australia and died here in 1995, leaving the complainant as the sole beneficiary of his estate. MacDonnells Law, a firm of solicitors with an office in Cairns, acted on the complainant’s instructions in relation to the estate. The complainant gave evidence that he visited Australia in 1995 and met the appellant at the firm’s office in Cairns. The complainant arranged for a small fee to be given to some people who had helped him clean up his father’s house, Jim Harris and Jim Fuller. The house was sold for $200,000. The complainant invested $100,000 of that sum in Australia in accounts controlled by the firm. By 2007 the estate had been administered and the complainant’s investment was held in accounts with a local financial institution, Cairns Penny Savings & Loans (“Cairns Penny”). The sole signatory for the accounts at Cairns Penny was a partner of the firm, initially Mr Hannay and later Mr Beer. Cairns Penny records showed that on 19 separate occasions between 19 March 2007 and 14 November 2008 there were cash withdrawals totalling $93,000 from one of the Cairns Penny accounts. The Crown case was that the appellant fraudulently withdrew $93,000 from the account and that, allowing for $7,000 which the appellant arranged to be given to the complainant on 17 November 2008, the yield to the appellant was $86,000.
The complainant gave evidence that if he wanted money out of the estate he would email or telephone the appellant to tell her how much he wanted and he would visit her at the firm to withdraw the money. After the estate was finalised in 1995 the complainant visited the appellant at the firm’s Cairns office between five and seven times. The appellant was the only person at the firm to whom the complainant spoke before 2008. The complainant did not ask or authorise any other person to collect money from the firm. He had never sent any other person to the firm to collect money for him. Apart from one occasion when the complainant asked the appellant to give some money to his uncle and aunt (William and Kath Palandonk) in 2005, he had never asked the appellant to give money to any person other than himself.
The complainant could not recall whether he came to Australia in 2006. The transcript records that when the complainant was asked by the prosecutor whether he came to Australian in 2007 he answered “I didn’t come in 2007, I remember that”. The appellant argued that his answer was in fact “I did come in 2007”, but that is not what the transcript records. The prosecutor went on to say “I beg your pardon?” Contrary to the appellant’s argument, that enquiry did not suggest that the complainant’s previous answer was wrongly transcribed; the transcript reveals that the complainant spoke with an accent which sometimes led to requests for answers to be repeated. The complainant responded to the prosecutor’s enquiry by saying “I don’t think I came in 2007.” The complainant gave evidence that his next visit to Australia was with his son in November 2008. He returned to England in early December 2008.
The complainant gave evidence that during the November/December 2008 visit he attended MacDonnells Law and asked to see the appellant. He was told by the receptionist that the appellant was retiring. He was seen instead by an employee called “Jacqui”. Ms Jacqueline Long-Hedke (who I will call Ms Long, as she was called at the relevant times), gave evidence that she was first employed as a secretary by MacDonnells Law in 1996. Ms Long was admitted as a lawyer in 2008 and took over the appellant’s work upon her resignation in November 2008. She gave evidence that she was in the firm’s Cairns office from early December 2008. She recalled an occasion when the complainant told her by telephone or by email that he was in Cairns or was going to be in Cairns. The complainant gave evidence that on that occasion he collected $7,000 in cash. He did not authorise the appellant to withdraw any money from the account in 2007 and the withdrawal in November or December 2008 of $7,000 was the only withdrawal he authorised in 2008. He signed a receipt for that withdrawal. (The receipt was dated 17 November 2008: Exhibit 2.6). The complainant gave evidence that he subsequently discovered that a lot of money had gone missing from the account. The complainant said that he made an enquiry in 2010 about how much money was left in the account. Ms Long told him that there was about $20,000. The complainant responded that she should immediately close the account because a lot of money was missing.
The complainant maintained his account during a lengthy cross-examination. The complainant agreed that after he told the firm that there should be more money in the account, the firm checked and subsequently paid to him the amount which, according to its check, he was owed. The complainant said that when he first spoke to Ms Long she said that there was $23,000 in the account. He told her that he thought that there should be more than $114,000. The firm had given him a document, which the complainant presumed came from Cairns Penny, showing that at the end of 2007 there was $114,000 in the account.
A Cairns Penny record dated 19 October 2007 showed that Mr Beer was the signatory for the accounts at Cairns Penny (Exhibit 6). The appellant was already employed at the firm when Mr Beer joined it in 1990. Mr Beer gave evidence that when the money was originally invested in Cairns Penny the sole signatory was the appellant’s former supervising partner, Mr Hannay, and that he, Mr Beer, was substituted as the sole signatory and as the appellant’s supervising partner after Mr Hannay left the firm. Mr Beer said that the appellant had a role in supervising the secretarial staff and she also worked with another partner doing probate work. During the 1990s her role developed into running the probate and administration section of the firm. She took instructions for wills, prepared wills, and arranged for signature forms necessary to obtain probate of the wills. Mr Beer’s evidence was that the appellant largely worked independently although she spoke to him about her work from time to time.
Mr Beer gave evidence that after the appellant left the firm (in cross-examination Mr Beer agreed that the appellant gave a month’s notice of her resignation to take effect on 21 November 2008) the person who took over the appellant’s role, Ms Long, told him that she could not find the Swane file. He organised extensive searches but the file could not be found. Mr Beer said that he subsequently met the appellant to seek her help to find the file. The appellant suggested that the file was in one or two boxes and made suggestions about where they might be. (Mr Beer was unable to find the file in those places.) The appellant asked Mr Beer why he was asking about the file, and Mr Beer told her that the complainant had alleged that monies had gone missing from the account where the monies were invested for his benefit. The appellant replied that this was ridiculous. In cross-examination Mr Beer agreed that in an earlier statement he said that the appellant had told him that she did not always give money to the complainant but also gave money to his aunt and uncle. Mr Beer agreed that the appellant had said to him that the firm’s office manager had wanted the boxes containing the file out of the way where people might be walking and that they might therefore have been moved to a downstairs room. He agreed that he asked the appellant what was in the boxes and that she responded that they contained handwritten letters from the complainant authorising her to withdraw money and give it to him. Mr Beer added that the appellant said that in more recent times those communications would have been by email from the complainant. The appellant also told him that there was a separate file containing receipts. When Mr Beer was cross-examined about the contents of the Swane file he said that he had never seen it.
Mr O’Connor, an accountant employed at MacDonnells Law, gave evidence that in 2010 he conducted an investigation into the file held by the firm in relation to the complainant’s father’s deceased estate. He found that the file covered the 2009 and 2010 years, but had very few documents for earlier years. There were 20 copy facsimiles sent from the firm to Cairns Penny in 2007 and 2008. (Mr Phillips, the general manager of Cairns Penny identified those 20 facsimiles as documents which Cairns Penny had received and provided to the firm in 2010 at the firm’s request.) Otherwise, the only documents were a memo from the appellant to Ms Long handing over the file, the complainant’s receipt for the $7,000 paid to him on 17 November 2008, and a copy of a letter dated 13 November 2008 from the firm to Cairns Penny signed by the appellant. That letter stated that “our client is attending at this office on Monday 17 November next at approximately 9a.m. We have been instructed to withdraw the sum of $7,000.00, in cash from the above investment. Could you please arrange to have the above amount available for collection by the writer at about 11am on Friday 14 November next”. Mr O’Connor examined the computer directory which had the same identifying number as the file. That directory should have included the correspondence. Mr O’Connor found the directory and an index but there were no documents for the relevant period behind the index.
Mr O’Connor referred to the 20 copy facsimiles from the firm to Cairns Penny which had been supplied to the firm by Cairns Penny. Each facsimile identified the appellant as the writer and included her direct telephone number and email address at the firm. With one exception, each facsimile was addressed to or marked for the attention of Mrs Whittaker at Cairns Penny and asked for a cash withdrawal from one of the accounts. The first facsimile was dated 19 March 2007 and signed by Mr Hannay. It stated that the firm had been instructed by the beneficiary of the estate of the complainant’s father to have available for the complainant when he arrived in Cairns that afternoon the sum of $4,000 in cash, and that the original of the faxed letter together with the withdrawal form would be delivered on the same day when the $4,000 in cash was collected. The second facsimile was dated 30 April 2007 and signed by Mr Beer. It stated that the beneficiary of the estate was in Cairns and sought payment of $4,000 in cash, and it noted that the writer would attend at midday to collect that amount.
The third facsimile, dated 19 July 2007, was the only one which did not seek a cash withdrawal. It was signed by the appellant and addressed to “investment manager” rather than to Mrs Whittaker. It instructed Cairns Penny to reinvest the principal of $112,177.03 together with a specified amount of interest for six months and then to provide the firm with a cheque for the remaining balance of interest payment on maturity of the proposed term deposit ($1,000) in favour of the firm.
The fourth facsimile, dated 19 October 2007, was signed by Mr Beer. It stated that the firm’s client was arriving in Cairns on the following morning from the United Kingdom and the firm had been instructed to withdraw $10,000 in cash to have available for him when he arrived. It instructed Cairns Penny to withdraw that amount from the term deposit and that the appellant would contact Cairns Penny to arrange for its collection. Each of the sixteen subsequent facsimiles was signed only by the appellant and included instructions to make a specified amount of cash available for collection. Most of the facsimiles s stated that the complainant would be in Cairns to collect the cash when it was available. By way of examples: the facsimile dated 7 February 2008 stated that “[o]ur client also wishes to collect from this office this morning $3,000.00, in cash to be withdrawn from the above investment …”; the facsimile dated 26 February 2008 stated that, “[o]ur client is leaving Australia for the UK within the next 12 to 24 hours. Accordingly we ask that the abovementioned cash amount [$4,000] be available for collection by this office at approximately 12.30pm., today”; and the facsimile dated 19 May 2008 stated that, “[o]ur client will be in our office at 11.30a.m., today to collect this amount [$5,000] … [t]he writer shall collect the abovementioned amount in cash from your premises at approximately 10.30a.m., today”.
The last facsimile signed by the appellant was dated 14 November 2008. It stated that the firm’s client was attending the office that day and again on 17 November and wished to collect $4,000 in cash, and asked for that sum to be available for collection by the writer. The copy letter of 13 November 2008 found in the firm’s file was not amongst the facsimiles which Mr Phillips said Cairns Penny had received.
Mr O’Connor looked at the appellant’s electronic diary records to ascertain if any appointments recorded in her diaries matched the dates of her appointments with the complainant referred to in the facsimiles. The only match was for 17 November 2008 in which the diary entry for 9.00 am stated “Mr Swane (Meeting Room 2)”. Other dates in the appellant’s electronic diary (Exhibit 2.3) which corresponded with the dates in the facsimiles included numerous references to meetings, but there was no reference to any meeting with the complainant on any of those dates.
Mr O’Connor reconstructed a time ledger for the file from the firm’s electronic records (Exhibit 2.4). From 1995, there were many references to time spent on the Swane file by the appellant, including attendances on the complainant and Judith Fuller, but there were only about eight references to times spent on the account in 2007 and there were none in 2008. None of the references in 2007 referred to any attendance upon the complainant or any communication from or to him.
Mr Phillips referred to Cairns Penny statements for a savings investment account and a term deposit account which were opened on 7 April 2000. The statements covered the period up to 31 December 2010. Cairns Penny required an instruction from MacDonnells Law to transfer money out of the term deposit account into the savings investment account and they required a signed withdrawal form for the withdrawal of cash from the savings investment account. The nineteen entries described as “cash withdrawal” in the statements for the savings investment account between 19 March 2007 and 14 November 2008 corresponded in date and amount with the requests for cash withdrawals in the nineteen facsimiles to Cairns Penny. There were corresponding transfers from the term deposit account to the savings investment account in each case. Those records also corresponded with nineteen withdrawal forms kept by Cairns Penny (Exhibit 2.2), which were tendered during the evidence of Ms Willett. Ms Willett, who was employed by Cairns Penny as a teller, gave evidence that she served the appellant on numerous occasions. Sixteen of the withdrawal forms were signed by the appellant and three included the word “attached” in the space for signature.
Ms Whittaker gave evidence that she was the office manager at Cairns Penny and had been there for nearly 12 years. She had known the appellant since about 2000 or 2001 and had dealings with her over the years. She referred to the nineteen facsimiles to Cairns Penny requesting cash withdrawals and gave evidence that the appellant usually rang first to say that she was sending a facsimile and needed to get some money. She identified the appellant’s signature on sixteen of the withdrawal forms. The nineteen withdrawal forms were also signed for Cairns Penny either by Ms Whittaker or by Ms Willett. Ms Whittaker gave evidence that she saw the appellant come into Cairns Penny, sign withdrawal forms for this account, and collect the cash described in the withdrawal forms. Ms Whittaker never saw anyone else do so.
Mr Morrow, an employee of the National Australia Bank, gave evidence about the way in which banks organised telegraphic transfers of money. He referred to records of the National Australia Bank branch in Shield Street, Cairns. Those records did not refer to any telegraphic transfer of money on behalf of or to the complainant that matched the amount and date of any of the withdrawals referred to in the facsimiles and withdrawal forms. The appellant formally admitted that a search of the records of the Westpac Bank branch at Lake Street, Cairns disclosed that there were no telegraphic transfers matching the relevant amounts and dates.
Ms Evans gave evidence that she was employed at MacDonnells Law as a legal secretary between March 1982 and November 2009. She worked as the appellant’s personal secretary from about 2002 or 2003. She recalled that after the appellant left the firm in 2008 Ms Long asked her for the Swane file. The file had been kept on a shelf directly behind Ms Evans but when she looked for it it was not there. She looked but could not find the file in the appellant’s old office and she instituted searches, which proved unsuccessful, throughout the whole of the Cairns office and in the archived files. The missing file was in the form of a number of different volumes or “wallets”. Ms Evans could not recall when she had last seen the file before she was asked for it shortly after the appellant left. Ms Evans said that from time to time “we would get notices from the – the bank where the moneys were invested and so the last time that I physically put like an investment certificate that you got from the bank to say, you know how much was invested, for how long, et cetera …”. She said that she could not recall the last occasion when that happened because it depended upon the length of the term of the investments; Cairns Penny would send a notice seeking instructions about reinvestment upon expiry of the term of the deposit.
The appellant gave evidence in her defence. She agreed that it was her job to administer the estate of the complainant’s deceased father. The assets, including a house, were sold and the proceeds put into accounts nominated by the complainant. By 2007 the only work on the Swane file involved the investment money at Cairns Penny. The appellant gave evidence that she collected cash from Cairns Penny as instructed and deposited it or took it back to the office at the firm to retain in the safe until it was collected. In 2007 and 2008 her contact with the complainant was mainly by telephone and sometimes there were emails and letters. The appellant gave evidence that she never took money out of Cairns Penny without the complainant’s specific instructions, she did not commit fraud or take the complainant’s money, and she did not send any facsimile to Cairns Penny on any occasion other than in accordance with the complainant’s instructions. In relation to statements in the facsimiles the appellant sent to Cairns Penny in 2007 and 2008 which asserted that the complainant was in Cairns, the appellant said “[w]ell, in – in 2007 I – I understood that he was going to come to Cairns in 2007 … [h]e – he may have changed his mind. I – I – there – there would be file notes of my telephone conversations with him.”
The appellant gave evidence that Mr Hannay collected the cash on one occasion, which may have been the March 2007 withdrawal, and that he had collected cash on an earlier occasion in 2004. The appellant said that some of the money she collected was in cash and some of it was sent by telegraphic transfer to overseas accounts for the complainant. She did not recall if all of those accounts were the complainant’s own accounts. She arranged for those transfers with the National Australia Bank and the Westpac Bank because they were on her way back from Cairns Penny to the office.
The appellant referred to the copy letter from the firm to Cairns Penny dated 13 November 2008. She agreed that the word “yellow” written on it (which indicated that it was a copy letter) could be her handwriting but she did not really know. She could not remember producing the document. She could not see any reason why it would not have been sent. She agreed that it sought $7,000 and that the complainant was given $7,000 in November 2008. (Contrary to the complainant’s evidence, the appellant said that she handed the money herself to the complainant and told him that Ms Long was taking over her position.) The appellant was referred to the difference between the request for $7,000 made in the copy 13 November 2008 letter (which reflected the amount given to the complainant on 17 November 2008) and the request for $4,000 in the facsimile dated 14 November 2008 produced by Cairns Penny (which accorded with the withdrawal slip and account statement showing that $4,000 was withdrawn on 17 November 2008). When the appellant was asked whether she could remember “how that $7,000, handed to him on the 17th of November, was made up” she responded, “[i]f I had the file I would be able to tell you exactly, but recollection, I’m – no, not really.”
The appellant agreed that on a number of occasions during 2008 she withdrew cash from Cairns Penny. When asked whether she could say what she did with that money, the appellant said that “with – with money that was deposited to accounts, I – I don’t know which bank accounts of – whether they were Swaz’s [meaning the complainant’s] accounts or – I think he had – his daughter was Sally, whether it was the children’s accounts or – and cash was collected by other persons.” When asked who the other persons were, the appellant nominated Judy Fuller. The appellant said that she would need to refer to investment records at MacDonnells, telegraphic transfers, receipts for cash, authorities from the complainant, and the file in order to be able to tell the court what she did with the money “in detail”. The appellant gave evidence that she did not take the file.
In cross-examination the appellant agreed that she had collected the cash from Cairns Penny in the cases in which she had signed the withdrawal forms. In those few cases where the withdrawal forms referred to “signature attached”, the appellant said that she “may not have” collected the cash.[1] In further cross-examination the appellant acknowledged that in relation to the withdrawal on 30 April 2007 (in which the facsimile to Cairns Penny asking for $4,000 in cash to be available referred to “signature attached”), she had written the facsimile and it stated that “[t]he writer will attend at your office at midday today to collect the above amount”.
[1]AR 240.
The appellant agreed that her facsimiles to Cairns Penny indicated that the complainant was regularly in Australia in 2007 and 2008. When asked on what basis she indicated that the complainant was in Australia, the complainant responded that “I would’ve received a telephone call from him ... [i]t would have indicated that he was coming to Australia.” When asked whether it was her practice to state in the facsimiles what the complainant had told her, or whether it was her practice to say something different, the appellant responded that “I – I don't know, your Honour, I’d have to refer to the file notes that I would’ve made at the time from a telephone conversation that I would’ve received from him.”
The complainant agreed that in her diary entries for the dates of the withdrawals there was no reference to the complainant or to Mr or Mrs Fuller. The appellant agreed that the complainant had collected $7,000 on 17 November 2008, as recorded in the receipt. She was referred to the withdrawal slips which showed that $4,000 was withdrawn on 14 November 2008, the previous withdrawal was $10,000 on 31 October 2008, and the withdrawal before that was $3,000 on 26 September 2008. The appellant could not explain how the $7,000 paid to the complainant was derived but agreed that it would “stand to reason” that it was either the sum of $3,000 and $4,000 or it was “leftover from the $10,000”. The appellant maintained that all of the withdrawals from Cairns Penny were authorised by the complainant. When answering questions she repeatedly stated that the relevant authorities and receipts for the payments would be on the file.
Consideration
The appellant’s ground of appeal is that there was a miscarriage of justice because the trial judge failed to direct the jury adequately as to “(a) … the relevance of the missing documents within the file of the solicitors of the 2009 complaint of funds shortfall; and (b) the manner in which the jury should address the absence of the documents.”
The documents referred to in that ground of appeal were those mentioned by Ms Long in her evidence. She gave evidence that, when she took over the file after the appellant’s resignation, she did not immediately send to the complainant statements concerning the term deposit but she ultimately emailed them to him. The complainant responded by email advising her that he did not agree with the balance of the money in the account and that he was worried. Ms Long ordered reviews of the Cairns Penny accounts and the firm’s trust account statements and advised Mr Beer and Mr O’Connor of the discrepancies. In July 2010 Ms Long emailed to the complainant the firm’s full trust account statement and all of the bank account statements from Cairns Penny, together with a table which she had prepared of all of the withdrawals. In cross-examination Ms Long agreed that, when she telephoned the complainant on 16 April 2009 she had a certificate of investment and a statement from Cairns Penny so that she knew how much money was in that investment account. She agreed that she could have told the complainant on 16 April 2009 of that amount. On 22 April 2009 she sent another email to the complainant in which she might have mentioned the amount of the term deposit balance. There were subsequent exchanges of emails with the complainant until, on 18 November 2009, she prepared a memo to the accounts section in which she identified the money in the investment account as “controlled moneys” and asked for the investment ledger. She was concerned when she could not find it and sought to ascertain a history of the file. Ms Long said that she could place the date on which the complainant disputed the amount in the account as being 18 July 2010 because there was a time entry in the accounting records on 19 July 2010 referring to perusal of the complainant’s email dated 18 July 2010. That was when the complainant said that he was worried and did not agree with the amount shown in the balance of the account. She then contacted Cairns Penny on 21 July 2010 as noted in the accounts records.
It should first be noted that defence counsel did not contend at trial that the prosecutor had failed to disclose any document to which Ms Long referred in her evidence or any other document which should have been disclosed. Contrary to one of the appellant’s arguments, there is also no basis for thinking that defence counsel had inadequate time to consider the relevance of the emails and other documents. The trial followed an earlier trial in which the jury was discharged on 24 July 2012. Before any evidence was called in the new trial, defence counsel informed the trial judge that the defence “has been on a search through many different kinds of records” and he sought some time to talk to Mr O’Connor and to the prosecutor. The trial judge agreed to give defence counsel more time. In the absence of the jury the trial judge asked defence counsel to let the court know when he was ready to proceed. Some hours later the trial judge mentioned the matter to ascertain the stage which had been reached in the provision of documents. Defence counsel told the trial judge that MacDonnells Law was co‑operating directly with defence counsel’s instructing solicitor and that the only matter outstanding at that time was the Cairns Penny file. It seems clear that all documents sought by defence counsel were provided by the prosecutor or directly by MacDonnells Law. There is no reason to think that defence counsel was unfamiliar with the contents of, or unable to obtain copies of, the emails and other documents to which Ms Long subsequently referred in her evidence.
Consistently with those exchanges, defence counsel did not ask the trial judge for an order that the prosecutor produce those documents. Rather, defence counsel referred the trial judge to Jones v Dunkel,[2] which concerns the effect of a party’s failure to adduce evidence which it is within that party’s power to adduce. Defence counsel submitted to the trial judge that “a Jones v Dunkel direction” should be given in relation to the emails to which Ms Long referred in her evidence. He argued that Ms Long’s evidence was that she maintained a file after the appellant left in which there were emails and telephone calls recording how Swane’s complaint was made when he knew the amount of the balance, the Crown easily could have obtained and disclosed those documents, and they were “terribly important”. The documents were submitted to be important because of the complainant’s evidence that he thought that there was a shortfall in the account, he told MacDonnells Law that there should be more in the account, the firm checked, and it paid to him the amount which, according to its checks, he was owed. Defence counsel submitted that the non-production of documents was material “as to whether his complaint was initially in relation to the events of 2007 and 2008, or whether it was just more general that he thought he should have more money and then MacDonnells have run with it and they’ve come up with 2007, 2008”. The trial judge ruled that no direction was required about that evidence because it was not material to the issue in the trial, which was whether the appellant dishonestly applied the money to her own use.
[2](1959) 101 CLR 298.
The appellant adopted defence counsel’s argument and added to it the submission that the important documents also included certificates of investment issued by Cairns Penny between 2008 and 2010.
The appellant’s argument did not articulate any particular inference in favour of the defence which might more readily be drawn as a result of the Crown’s omission to tender the documents to which Ms Long referred. Her argument also appeared to assume that when the complainant discovered what he believed was a loss from the account he should have realised that it occurred in 2007 and 2008, but there was no evidence to justify any such assumption. Furthermore, defence counsel used the documents in cross-examination of Ms Long to the extent which he presumably thought was appropriate and he could also have called for and tendered the documents if he thought that would assist the defence. There is no basis for thinking that the prosecutor’s omission to tender the documents might have been productive of a miscarriage of justice in the context of the very strong Crown case.
Other matters
The appellant referred to some other matters which were not the subject of a ground of appeal.
The appellant argued that questioning of her by the trial judge was inappropriate and to her disadvantage. The record reveals that the trial judge asked some questions of the appellant but they were put in neutral terms and were apparently designed to make the evidence more comprehensible to the jury. There was nothing untoward in that conduct.
The appellant argued that the summing-up was unbalanced. The summing-up was not unbalanced merely because it inevitably reflected the strength of the Crown case in its references to important evidence and in its summaries of submissions made by the prosecutor and defence counsel. Appropriate directions were made as to the elements of the offence and the burden and onus of proof. Defence counsel did not submit that there was any misdirection of law or otherwise complain of the summing-up. No complaint was made by defence counsel about the summing-up. It was not unfair.
The appellant argued that defence counsel was unwell at times during the trial and this might have impacted upon his conduct of the case. If so, defence counsel could have sought and he doubtless would have been granted any necessary adjournment. It does not appear from the record, and there is no other evidence, that ill health did adversely affect defence counsel’s conduct of the case.
The appellant also complained about defence counsel’s conduct of the trial, but there is no evidence that defence counsel did not follow the appellant’s instructions. The appellant referred to matters which she thought should have had greater emphasis in cross-examination. She particularly emphasised her contention that more should have been made by defence counsel about the absence of records at MacDonnells Law in light of evidence that the relevant files were intact after the appellant resigned. The appellant argued that such evidence was given by Ms Evans’s agreement in cross-examination that the file was in its usual place on the shelf behind her after the appellant left. The argument relied upon the following passage in which defence counsel referred to an earlier statement by Ms Evans:
“I’ve read to you, ‘Leading up to Vicki leaving I had 21 tapes to transcribe and I was overwhelmed’?-- Yes.
‘I got assistance from other secretaries’?-- Yes.
The next paragraph is, ‘Jacqueline Lee Long took over from Vicki’?‑- Yes.
‘I kept the files beside me in alphabetical order. I knew the Swane file was there. I was constantly looking in that shelf for files’?-- Yes.
All right. Well, first of all, apart from seeing the file and handling the file when you’d put documents on file-----?-- Mmm.
-----for example, you’ve told us bank documents?-- Yes.
You were also aware that it was there, because of its size, every time you went to your file shelf or shelves. Is that so?-- Yes.
All right. Okay. So, you were constantly going to that shelf?-- Yes.
And you were aware that the Swane file was there on those shelves?-- Yes.
And it was there after Jacqueline Lee Long took over from Vicki?-- Yes, as - to my knowledge, yes.
Right. But then, as Jacquie made her way through the files-----?-- Mmm.
-----there came a day where she said, ‘Where is the Swane file?’ ?-- Yes.
And to your surprise it was not there?-- Correct, yes.”
In that passage Ms Evans agreed that she was surprised when she could not find the file shortly after the appellant left, but the critical evidence for present purposes was her answer “[y]es, as – to my knowledge, yes” in response to the question whether the file was there after Ms Long took over from the appellant. It is not at all clear that Ms Evans intended to convey that she knew that the file was on the shelf after the appellant left. Her evidence in chief was to the contrary, that she could not recall when she had last seen the file before she was asked for it shortly after the appellant left. Furthermore, Ms Evans was not asked whether she knew what documents were in the files to which she referred. It was defence counsel’s decision to leave the evidence of Ms Evans in that inconclusive state. There is no evidence to suggest that this was not a deliberate and reasonable forensic choice made in the appellant’s interests.
There was no challenge to the evidence of Mr Beer and others that the missing files could not be found after extensive and apparently comprehensive searches for it. Accordingly, no adverse inference could be drawn by the prosecutor’s failure to adduce the missing documents in evidence. In so far as the appellant referred to missing documents in her evidence, the jury could take that into account in assessing the strength of the Crown case against her. The jury could also bear in mind that the appellant appeared to be in a position to control what documents were created and maintained in the files. Defence counsel did not ask the trial judge to give any particular direction upon this topic. That too should be regarded as a forensic decision made in the appellant’s interests. One potential disadvantage in pressing for such a direction was that the prosecutor might ask for any direction to refer to the weaknesses in the evidence of Ms Evans upon which the appellant relied and to the prospect that the appellant was responsible for the absence of documents from the files.
Disposition and proposed order
The Crown case was very strong. None of the matters to which the appellant referred in argument suggests that she might have been the victim of a miscarriage of justice.
The appeal should be dismissed.
WHITE JA: I have read the reasons for judgment of Fraser JA and agree with his Honour’s reasons and the order which he proposes.
MARTIN J: I agree with Fraser JA.
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