R v Portese - [2024] QCA 117

SUPREME COURT OF QUEENSLAND

CITATION:

R v Portese [2024] QCA 117

PARTIES:

R
v
PORTESE, Joanne Irene
(appellant/applicant)

FILE NO/S:

CA No 175 of 2022
DC No 308 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 2 August 2022 Date of Sentence: 3 August 2022 (Clare SC DCJ)

DELIVERED ON:

18 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2023

JUDGES:

Mullins P and Morrison and Bond JJA

ORDERS:

1. Appeal dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by a jury after trial of one count of fraud by dishonestly causing a financial detriment with the circumstance of aggravation that the amount of the financial detriment was more than $30,000 (count 1) and one count of fraud by dishonestly causing financial detriment (count 2) – where the complainant was a vulnerable person and suffered from a rare degenerative mitochondrial condition that confined her to a wheelchair and she required significant assistance with daily tasks – where the appellant worked for a disability services provider and undertook shifts as a support worker for the complainant – where the professional relationship between the appellant and the complainant developed into a friendship – where the appellant resigned from the disability services provider and commenced caring for the complainant as a friend – where the appellant conceded making the withdrawals from the complainant’s bank account that were the subject of count 1 – whether the appellant, at the time of making those withdrawals and at the time of procuring the complainant to make the loan that was the subject of count 2, knowingly took advantage of the complainant’s vulnerability – where the prosecution relied on evidence of the complainant’s treating neurologist and carers who undertook shifts for the complainant as to the complainant’s lifestyle, spending habits and the declining state of her general health and cognitive ability – whether the appellant’s conduct was dishonest – whether it was open to the jury to be satisfied beyond reasonable doubt on the prosecution’s evidence that the appellant was guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDINGS OF JUDGE – CONTROL OF PROCEEDINGS – ADJOURNMENT – GENERALLY – where the appellant was convicted by a jury after trial of two counts of fraud – where the appellant applied for adjournment of the trial relying on limited medical evidence as to the appellant’s foot injury and the effect of the medication the appellant was taking due to a “recent flare up” of a medical condition – where the trial judge was sceptical about the request for an adjournment – whether there was any error made in the trial judge’s refusal to adjourn the trial amounting to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – MATTERS…

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 Portese

Details

AGLC: R v Portese [2024] QCA 117
Case: [2024] QCA 117
Decision Date: 18 June 2024

CaseChat Overview and Summary

The case of R v Portese involved the appellant being convicted of two counts of fraud, with one count including an aggravating circumstance due to the financial detriment exceeding $30,000. The complainant was a vulnerable individual who suffered from a rare degenerative mitochondrial condition, relying significantly on the appellant, who was initially a support worker and later a friend, for assistance with daily tasks. The appellant took control of the complainant’s finances and made numerous withdrawals from the complainant's bank account, leading to the charges of fraud. The court had to determine whether the appellant knowingly took advantage of the complainant’s vulnerability, and if the jury's verdict was reasonable and supported by the evidence.

The primary legal issues revolved around the dishonesty of the appellant’s conduct and whether it was reasonable for the jury to conclude that the appellant was guilty beyond reasonable doubt based on the prosecution's evidence. The court also had to assess the trial judge’s decision on refusing an adjournment due to the appellant’s medical issues and whether this refusal constituted a miscarriage of justice. Additionally, the appellant claimed that her legal representation was inadequate, particularly in not sufficiently advocating for an adjournment and in not providing her with the prosecution brief of evidence to review before the trial. The court had to decide whether these issues amounted to a miscarriage of justice due to the alleged incompetence of legal representation.

The court found that the evidence presented was sufficient to support the jury's verdict that the appellant’s conduct was dishonest and that she knowingly took advantage of the complainant’s vulnerability. The court rejected the argument that the refusal to adjourn the trial amounted to a miscarriage of justice, stating that the trial judge was not incorrect in being sceptical about the appellant’s medical claims. Regarding the appellant’s complaint about her legal representation, the court noted that while the appellant did not waive legal professional privilege, it was a matter for her legal representatives to manage their professional responsibilities in obtaining informed instructions. The court concluded that there was no miscarriage of justice due to the appellant’s legal representation. Finally, the appeal against the sentence was dismissed, and the application for leave to appeal against the sentence was refused.

The final orders of the court were to dismiss the appeal and to refuse the application for leave to appeal against sentence.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Portese was called upon at the commencement of the seventh day of the trial. She commenced giving her evidence at 10.21 am. There was an adjournment for 20 minutes at 11.10 am. There was another adjournment for 12 minutes. The Court resumed at 12.45 pm, adjourned for lunch at 1.03 pm and resumed for an hour at 2.00 pm. That pattern of regular breaks continued as Ms Portese gave evidence on the eighth, ninth and 10th days of the trial. Her evidence was completed at 11.20 am on the 10th day of the trial.Summary of the relevant evidence In April 2018, Ms Portese was working for a disability services provider (the disability services provider) in Cairns and commenced undertaking shifts as a support worker for the complainant who suffered from a rare degenerative mitochondrial condition that confined her to a wheelchair. The complainant was aged between 33 and 34 years during the period of offending. The complainant required significant assistance with daily tasks for herself and her two children. The complainant received a disability support pension and family tax benefits and had savings of between $25,000 and $30,000 when the appellant commenced as one of her support workers. Their professional relationship developed into a friendship. On 7 August 2018 the complainant received an amount of $25,000 which was the first payment on account of the inheritance from her mother’s estate. On 10 August 2018, Ms Portese resigned her job with the disability services provider to become the unofficial guardian/carer for the complainant. Ms Portese was not employed by the complainant who continued to receive care through the disability services provider funded by the NDIS. In October 2018, the complainant received a second payment of $55,000 on account of the inheritance from her mother’s estate. From August 2018, Ms Portese took control of the complainant’s finances and withdrew $60,185 from ATMs in 118 transactions in the period particularised for count 1. The prosecutor at trial had tendered with the consent of Ms Portese’s counsel (exhibit 1) a jury book that identified the 118 transactions and relevant supporting documents. There were 119 transactions listed in the index to the jury book but transaction number 63 was separately the subject of count 2. Ms Portese at first conceded that she had made all the cash withdrawals between 23 February 2019 and 24 December 2019 which were the subject of some of the transactions particularised for count 1 (transaction numbers 26-119, excluding transaction number 63). She ultimately conceded she made all the cash withdrawals that were the subject of count 1 (even though she asserted she had the complainant’s authority for every transaction). The relationship between Ms Portese and the complainant was close during the offending period. The complainant would frequently telephone Ms Portese for help in dealing with matters that were outside the carers’ responsibilities, paying bills and ensuring that there was sufficient petty cash available for the carers.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Portese [2024] QCA 117
PARTIES:	R v PORTESE, Joanne Irene (appellant/applicant)
FILE NO/S:	CA No 175 of 2022 DC No 308 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 2 August 2022 Date of Sentence: 3 August 2022 (Clare SC DCJ)
DELIVERED ON:	18 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	13 November 2023
JUDGES:	Mullins P and Morrison and Bond JJA
ORDERS:	1. Appeal dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by a jury after trial of one count of fraud by dishonestly causing a financial detriment with the circumstance of aggravation that the amount of the financial detriment was more than $30,000 (count 1) and one count of fraud by dishonestly causing financial detriment (count 2) – where the complainant was a vulnerable person and suffered from a rare degenerative mitochondrial condition that confined her to a wheelchair and she required significant assistance with daily tasks – where the appellant worked for a disability services provider and undertook shifts as a support worker for the complainant – where the professional relationship between the appellant and the complainant developed into a friendship – where the appellant resigned from the disability services provider and commenced caring for the complainant as a friend – where the appellant conceded making the withdrawals from the complainant’s bank account that were the subject of count 1 – whether the appellant, at the time of making those withdrawals and at the time of procuring the complainant to make the loan that was the subject of count 2, knowingly took advantage of the complainant’s vulnerability – where the prosecution relied on evidence of the complainant’s treating neurologist and carers who undertook shifts for the complainant as to the complainant’s lifestyle, spending habits and the declining state of her general health and cognitive ability – whether the appellant’s conduct was dishonest – whether it was open to the jury to be satisfied beyond reasonable doubt on the prosecution’s evidence that the appellant was guilty CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDINGS OF JUDGE – CONTROL OF PROCEEDINGS – ADJOURNMENT – GENERALLY – where the appellant was convicted by a jury after trial of two counts of fraud – where the appellant applied for adjournment of the trial relying on limited medical evidence as to the appellant’s foot injury and the effect of the medication the appellant was taking due to a “recent flare up” of a medical condition – where the trial judge was sceptical about the request for an adjournment – whether there was any error made in the trial judge’s refusal to adjourn the trial amounting to a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – MATTERS…