R v Nuske

Case [2024] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nuske [2024] QCA 28

PARTIES:

R
v
NUSKE, Jodi Louise
(appellant)

FILE NO/S:

CA No 10 of 2023
DC No 173 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 19 December 2022 (Long SC DCJ)

DELIVERED ON:

Date of Orders: 25 October 2023
Date of Publication of Reasons: 8 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2023

JUDGES:

Mullins P, Boddice JA and Martin SJA

ORDERS:

Date of Orders: 25 October 2023

1.   Appeal allowed.

2.   Conviction set aside.

3.   New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant was convicted after trial before a jury of one count of fraud – where the prosecutor made inappropriate statements about the appellant’s case, the appellant’s trial counsel and the appellant – where the prosecutor made repeated comments about the jury’s gullibility if the jury believed the appellant’s evidence – whether the aggregation of inappropriate statements by the prosecutor and other conduct of the prosecutor that fell short of the standard expected of a prosecutor constituted a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted after trial of one count of fraud – where the appellant was employed as the accounts and business manager for a group of companies trading as a restaurant – where the appellant had control of her salary and leave entitlements – where the prosecution’s forensic accountant’s report identified the appellant’s pay as normal salary for the periods Border Force records showed the appellant to be out of the country – where the prosecutor made the submission in his closing address that the appellant being paid a normal salary when she was on leave caused the appellant to accrue leave for that period and created “a slush fund” – where the appellant was not cross-examined on the discrepancy between the Border Force records and her payslips for the same periods – whether the failure by the prosecutor to comply with the rule in Browne v Dunn in conjunction with other conduct of the prosecutor that fell short of the standard expected of a prosecutor constituted a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION –  where the appellant was convicted after trial of one count of fraud – where the appellant’s lawyers had engaged a forensic accountant who prepared a report to which the prosecution’s forensic accountant had referred in evidence – where the appellant did not call her forensic accountant at trial – where the appellant did not produce invoices for bookkeeping or consultancy fees – where the trial judge had given repeated directions in general terms about the onus of proof, that the appellant…

Continue reading R v Nuske

Sign in free to access the full text

Details
AGLC
R v Nuske [2024] QCA 28
Case
[2024] QCA 28
Decision Date

CaseChat Overview and Summary

In the case of R v Nuske, the appellant appealed against a conviction for fraud. The appellant, who had been employed as the accounts and business manager for a group of companies, was found to have obtained benefits through various means, including unauthorized payments and retaining cash takings without authorization. The central issue before the court was whether the inappropriate conduct by the prosecutor and the trial judge's failure to provide specific directions to the jury constituted a miscarriage of justice warranting a new trial.

The court considered several instances of misconduct by the prosecutor, including inappropriate statements that went beyond the standard expected of a prosecutor. These included comments suggesting that the jury would be gullible if they believed the appellant's evidence and personal attacks on the appellant and her trial counsel. Additionally, the court scrutinized whether the prosecutor's failure to cross-examine the appellant about discrepancies in her payslips and leave entitlements, as well as not drawing the jury's attention to the appellant's decision not to call a forensic accountant, amounted to a miscarriage of justice. The court also examined whether the trial judge should have given a specific direction to the jury that no adverse inference could be drawn from the appellant’s choice not to call financial evidence.

The court found that the prosecutor's conduct, combined with the trial judge's failure to provide specific directions, created a significant risk of unfairness in the trial. The court concluded that these errors, taken together, constituted a miscarriage of justice. As a result, the appeal was allowed, the conviction was set aside, and a new trial was ordered.

Date of Orders: 25 October 2023
1. Appeal allowed.
2. Conviction set aside.
3. New trial ordered.

Orders

Orders of the court

Date of Orders: 25 October 2023

1. Appeal allowed.

2. Conviction set aside.

3. New trial ordered.

Background

Background to the litigation

These are the reasons for the making of those orders.Background The appellant was employed as the accounts and business manager for a group of companies owned by Ms Banks and trading as the restaurant “Bistro C” on the Sunshine Coast (the operating companies). The appellant had worked for Ms Banks for close to 20 years and by 2013 she was a close friend of Ms Banks and trusted by her. She enjoyed unsupervised access to Ms Banks’ business and personal accounts and had been granted a power of attorney in respect of Ms Banks’ financial affairs and one of the executors named in Ms Banks’ 2011 will. By a codicil to that will made in June 2015, the appellant was named with three others as the beneficiaries of the restaurant business, if none of Ms Banks’ children survived her for the period of 30 days after her death. It was also common ground at the trial that Ms Banks was generous in the gifts she gave to long term, loyal staff members, although there was not agreement about the detail of those gifts. The prosecution case at trial was that there were four different means by which the appellant obtained the benefit:Part A comprised any or all of 19 unauthorised payments from the accounts of the operating companies for payments to third parties for goods or services not received by the operating companies but instead received by the appellant, related parties or entities associated with the appellant or related parties that were set out in the table attached to the particulars and extracted from Annexure C-1 that was tendered as an exhibit in the trial.Part B comprised any or all of 94 unauthorised payments from the accounts of the operating companies to the credit cards or accounts of the appellant, or related parties, or entities associated with the appellant or related parties – as set out in the table attached to the particulars and extracted from Annexure D-1 that was tendered as an exhibit in the trial.Part C comprised wages paid to the appellant by herself from Ms Banks or the operating companies in excess of the salary and bonuses as agreed by Ms Banks or the operating companies.Part D comprised Bistro C restaurant cash takings retained by the appellant without authorisation or consent. The prosecution relied at trial on the evidence of Ms Banks that she had never authorised the appellant to use funds from Bistro C to make the purchases alleged in Part A, to pay off her credit card (as alleged in Part B) or to retain cash takings from the restaurant as alleged in Part D. Ms Banks’ evidence in chief was that the appellant only worked three days per week receiving a wage of $40 per hour up until mid 2015 and thereafter $45 per hour which meant any salary the appellant paid to herself over $50,360 per year was alleged to be excessive. It was conceded by Ms Banks, however, that at times (such as towards the end of the financial year) the appellant would have worked more than three days per week and the agreement was for the appellant to pay herself for the days she did work. In fact, the prosecutor conceded in his address to the jury that the prosecution’s case was “less strong” on Part C than for the other Parts, as the prosecution had difficulties in proving beyond reasonable doubt in relation to Part C that the appellant paid herself excessive wages dishonestly.

Evidence

Evidence Before The Court

The other example given in the appellant’s submissions of the prosecutor’s personal opinion being evident to the courtroom:(o)“HIS HONOUR: [Prosecutor], you’re just going to have to deal with it.[PROSECUTOR]: Yes. All right.HIS HONOUR: There’s no point rolling your eyes. You’ve just got to listen to the evidence and ask your questions please.” The third aspect of ground 1 is based on the prosecutor’s drawing to the jury’s attention that between 15 and 26 May 2016 the appellant had been in Fiji on leave but table LMD-13 of the forensic accountant’s report showed that the payslip details for that period were: “Pay described as normal salaryNo reference to annual leave” The prosecutor then submitted to the jury (without having cross-examined the appellant on this specific topic) that the effect of the appellant’s being paid normal salary when she was on leave was that she accrued leave for that period when she was out of the country which became “a slush fund” which she then had paid out to her. It was a relatively lengthy trial with the evidence concluding on day 8 followed by the appellant’s trial counsel’s address to the jury. The prosecutor addressed the jury and the trial judge summed up on day 9 with the jury commencing their deliberations and returning their verdict of guilty on the same day. It is necessary to consider each of the instances of inappropriate statements or conduct in the context in which each was made and in the context of the whole trial. Each of the statements or other conduct identified by the appellant will be referred to by the numbered paragraph attached to it above. In order to illustrate the appellant’s case at trial that Ms Banks and other witnesses were lying about the extent of the appellant’s entitlements, as they were covering up tax fraud, the appellant’s trial counsel used the analogy of the appellant being “thrown under the bus” in the sense of being made to suffer in order to save Ms Banks and those associated with her. The appellant’s counsel addressed the jury in these terms:“[The appellant] was thrown under the bus. I agree, ladies and gentlemen, that is not a legal term or a phrase, but I ask you to accept that is an accurate description of what occurred here. If I described the scene of what happened, we’d have the bus. We’d have [the appellant] under the bus. A number of fingerprints would be located on [the appellant]. Those fingerprints would belong to [Ms Banks and four other prosecution witnesses]. Five sets of fingerprints, because they all played a part in throwing [the appellant] under the bus. Now, that may be a difficult concept for some of you to accept. It may not. You might be thinking, ‘Yeah, I can see how that happened.’ But if there were those of you that are having some difficulty in grasping this concept, I ask you to keep an open mind as I take you through these next steps.” Statement (a) was made by the prosecutor in the opening few lines of his address to the jury which immediately followed the appellant’s trial counsel’s address where the metaphor of “thrown under the bus” had been used frequently for a legitimate forensic purpose. It was an unfair attack by the prosecutor to characterise that analogy as not even an argument, when the analogy was apt for the appellant’s case at trial.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.