R v Mudgway - [2014] QDC 10

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Mudgway [2014] QDC 10

PARTIES:

THE QUEEN

v

BERYL KAY MUDGWAY

FILE NO/S:

1713/2012

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane Registry

DELIVERED ON:

30 January 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 January 2014

JUDGE:

Reid DCJ

ORDER:

1. That the opinion of Daniel Clemesha as to the identity of the writer of disputed handwriting and signatures on a number of cheques and withdrawal slips of the defendant’s former employer’s cheque and savings accounts with the Commonwealth Bank of Australia be excluded from evidence.

2. That the application to exclude evidence of the defendant’s prior convictions of fraud, three counts of forgery and three counts of uttering of which the defendant was convicted on her own pleas of guilty in the Magistrates Court on 19 January 2012 be dismissed.

CATCHWORDS:

Forging – lay opinion as to identity of writer – whether admissible – whether excluded in exercise of discretion – variation in quality of writing and signature – prior convictions of similar offences – similar fact evidence – test of admissibility – consideration of circumstances of like offending.

Pfennig v R (1995) 182 CLR 461 applied

Phillips v R (2006) 225 CLR 303 applied

R v Gregory [2011] QCA 86 applied

Duke v Duke (1975) 12 SASR 106 considered

COUNSEL:

J Jacob for the applicant

R Swanwick for the respondent

SOLICITORS:

Bosscher Lawyers for the applicant

Director of Public Prosecutions for the respondent

Introduction

The defendant has been charged with one count of fraud as an employee to a value in excess of $30,000 and one further count of fraud as an employee. The offences are both said to have occurred between September 2010 and 30 June 2011. The first is said to have involved her forging and uttering a number of cheques from the account of an elderly woman, Ms Swan. The second involved her allegedly forging withdrawal slips relating to another account of Ms Swan.

The defendant has applied pursuant to s. 590AA of the Criminal Code to exclude from evidence at trial:

(i) The opinion of Daniel Clemesha as to the identity of the writer of disputed handwriting and signatures on a number of cheques and withdrawal forms on the defendant’s former employer’s cheque and savings account with the Commonwealth Bank of Australia.

(ii) Evidence of prior convictions of fraud, three charges of forgery and three of uttering of which the defendant was convicted on her own plea of guilty in the Magistrates Court on 19 January 2012.

Background

The defendant had, from about 2007 or 2008, known of her former employer, Mary Swan. At that time the defendant had commenced caring for Ms Swan’s aunt, Palmerin Clemesha. Mrs Clemesha had two children – Daniel Clemesha and Honora Seccull. Ms Swan was born in 1931, Ms Seccull in 1934 and Mr Clemesha in 1947. The defendant cared for Mrs Clemesha until her death in 2009. Subsequently she cared for Mr Clemesha’s mother-in-law and then for Ms Swan who was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mudgway

Details

AGLC: R v Mudgway [2014] QDC 10
Case: [2014] QDC 10
Decision Date: 30 January 2014

CaseChat Overview and Summary

The case of R v Mudgway involved the defendant, Mudgway, who was charged with multiple counts of forgery, fraud, and uttering. The primary dispute centred on the admissibility of certain evidence, specifically expert opinion on handwriting and the defendant’s prior convictions for similar offences. The case was heard in the Supreme Court.

The court was tasked with determining whether the opinion of Daniel Clemesha, an expert in handwriting analysis, could be admitted as evidence to establish the defendant’s authorship of cheques and withdrawal slips. Additionally, the court had to decide whether evidence of the defendant's prior convictions for similar offences was admissible under the principles of similar fact evidence. The court examined whether these prior convictions could be excluded under discretionary provisions and whether the circumstances of the prior offences were sufficiently similar to the current charges to warrant their inclusion.

The court concluded that the expert opinion on handwriting should be excluded because the quality of the writing and signatures varied significantly, casting doubt on the reliability of the expert's conclusions. Furthermore, the court held that the prior convictions were admissible, as they met the test for similar fact evidence and were relevant to the defendant's propensity to commit similar offences. The court determined that the circumstances of the prior offences were sufficiently similar to the current charges, justifying their inclusion in the trial.

The court ordered that the opinion of Daniel Clemesha regarding the disputed handwriting and signatures be excluded from evidence. However, the application to exclude the defendant's prior convictions was dismissed, allowing the evidence of these prior convictions to be presented to the jury.

Orders

Orders of the court

1. That the opinion of Daniel Clemesha as to the identity of the writer of disputed handwriting and signatures on a number of cheques and withdrawal slips of the defendant’s former employer’s cheque and savings accounts with the Commonwealth Bank of Australia be excluded from evidence.

2. That the application to exclude evidence of the defendant’s prior convictions of fraud, three counts of forgery and three counts of uttering of which the defendant was convicted on her own pleas of guilty in the Magistrates Court on 19 January 2012 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Mudgway [2014] QDC 10
PARTIES:	THE QUEEN v BERYL KAY MUDGWAY
FILE NO/S:	1713/2012
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane Registry
DELIVERED ON:	30 January 2014
DELIVERED AT:	Brisbane
HEARING DATE:	24 January 2014
JUDGE:	Reid DCJ
ORDER:	1. That the opinion of Daniel Clemesha as to the identity of the writer of disputed handwriting and signatures on a number of cheques and withdrawal slips of the defendant’s former employer’s cheque and savings accounts with the Commonwealth Bank of Australia be excluded from evidence. 2. That the application to exclude evidence of the defendant’s prior convictions of fraud, three counts of forgery and three counts of uttering of which the defendant was convicted on her own pleas of guilty in the Magistrates Court on 19 January 2012 be dismissed.
CATCHWORDS:	Forging – lay opinion as to identity of writer – whether admissible – whether excluded in exercise of discretion – variation in quality of writing and signature – prior convictions of similar offences – similar fact evidence – test of admissibility – consideration of circumstances of like offending. Pfennig v R (1995) 182 CLR 461 applied Phillips v R (2006) 225 CLR 303 applied R v Gregory [2011] QCA 86 applied Duke v Duke (1975) 12 SASR 106 considered
COUNSEL:	J Jacob for the applicant R Swanwick for the respondent
SOLICITORS:	Bosscher Lawyers for the applicant Director of Public Prosecutions for the respondent