R v Reischl
[2003] QCA 405
•12 September 2003
SUPREME COURT OF QUEENSLAND
CITATION:
R v Reischl [2003] QCA 405
PARTIES:
R
v
REISCHL, Robert(appellant)
FILE NO/S:
CA No 187 of 2003
DC No 124 of 2003
DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Ipswich
DELIVERED ON:
12 September 2003
DELIVERED AT:
Brisbane
HEARING DATE:
22 August 2003
JUDGES:
Williams JA and Muir and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted on two counts of fraud – where prosecution relied on inconsistencies in appellant’s evidence as consciousness of guilt – where complainant’s evidence contradicted appellant’s – where newspaper article published about case – whether verdict was unreasonable or insupportable
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where cumulative sentence imposed – whether sentence was manifestly excessive
COUNSEL:
The appellant appeared on his own behalf
R G Martin for the respondent
SOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
WILLIAMS JA: For the reasons given by Holmes J the appeal against conviction should be dismissed and leave to appeal against sentence refused.
MUIR J: I agree with the reasons of Holmes J and with her proposed orders.
HOLMES J: The appellant appeals against his conviction and sentence on two counts of fraud, the first count being particularised that between 1 August 2001 and 30 March 2002 he dishonestly obtained a sum of money from Suzanne Debbie Ashton, and the second that between 1 August 2001 and 1 December 2001 he dishonestly obtained a sum of money from Vasile Cocuz. At the relevant time the appellant was a serving prisoner, as were Vasile Cocuz and Stephen Ashton, the husband of the complainant Suzanne Ashton. Both Ashton and Cocuz had raised with the appellant the fact that they faced an extended period in prison because of changes to the Corrective Services Act in 2000. The appellant was perceived as having had some experience in judicial review applications and applications for sentence re-openings under s 188 of the Penalties and Sentences Act.
The evidence on Count 1
According to Stephen Ashton, the appellant told him that he knew lawyers who could assist on a pro bono basis, but it required $250 by way of court costs. Mr Ashton provided those funds in mid 2001. Later that year he was told that another $500 was needed for a QC, Terry Martin, to appear on a judicial review; his wife borrowed that money from her parents. In cross-examination he conceded that Mr Martin might merely have been nominated, along with a couple of other barristers, as his possible legal representative. Mr Ashton said he was told a date on which his matter was supposed to go to court, but was later informed that the case had been delayed and would be heard at a later date.
Mrs Ashton said that in September of that year, she received a telephone call from the appellant. He asked her to send him documents relating to her husband’s case and a money order for legal work that was to be done at his direction. She sent the documents and money to “LawSure” at a Runaway Bay Post office address. The appellant later confirmed receipt of the money and documents and told Mrs Ashton that in order to save costs, he was doing the groundwork for the lawyers who would go to court. LawSure was a conglomerate of lawyers who did work on a pro-bono basis. One of those lawyers was Sam Howard. Another lawyer involved with her husband’s case was Steven Hoskins, and there was a QC who, according to her recall, was named Tony Martin.
Mrs Ashton said that the appellant advised her that there would be something called an “interlocutory meeting” between the sentencing Judge, the Chief Justice and the Director of Public Prosecutions about her husband’s situation, and that the matter would go to court about 22 February. He asked for another $300 as final payment in order to file documents in court. Her mother, at her request, obtained a bank cheque which was paid to the Runaway Bay postal address. The cheque was an exhibit; it was made out to “S E Howard”. After that money was paid, the appellant confirmed that the matter was going to court on 22 February.
For the purposes of the trial, it was admitted that: Sam E Howard did not hold a practising certificate and was not admitted as a solicitor; LawSure was not a registered legal firm; no documents had been filed in relation to Stephen James Ashton at the relevant times, nor had his matter been the subject of any court mention; there were no fees payable in respect of a s 188 application; there had been no interlocutory meeting between the Chief Justice, the sentencing judge and the Director of Public Prosecutions; and Terence Martin SC had no knowledge of the appellant or Mr Ashton.
The following correspondence tendered at the trial may have assisted the jury in reaching its conclusion of guilt on the Ashton charge. Mrs Ashton received an email in February 2002 from LawSure, purportedly from Sam Howard, at a time when she had begun to question the appellant’s bona fides. She had discovered there was no court date set for a hearing in respect of her husband on February 22. On 14 February an email from Sam Howard advised that he had attempted to telephone her and referred to an attached letter of that same date. A copy of a letter dated 14 February, addressed to Mr Ashton, was found on the hard drive of the appellant’s computer. It bore the letterhead “LawSure Attorneys & Advocacy Services” of PO Box 323 Runaway Bay. It advised that LawSure was “a consortium of Legal Practitioners whom [sic] assisted with voluntary work provided by such as Mr. Reichel [sic]”. The letter also advised that LawSure had “anticipated to bring the matter 20th February. Unfortunately your matter is presently not satisfactory to the Crown, but we are endeavouring to rectify this. We are currently looking at 13th March for a possible date.” The letter invited Mr Ashton if he wished to “terminate service” to sign the letter and return it.
Two subsequent emails, dated respectively 18 and 21 February, also referred to Mr Howard and his dealings with the matter. A letter of 21 February 2002 on the LawSure letterhead, purportedly signed by Debra Zhang, advised that discussions had been held that day with solicitors and counsel; that $1542 had been expended for work on the case including “submitting brief for Counsel’s opinion, attending chambers for interlocutory”; that $500 had been spent on the brief to obtain counsel’s opinion; but that if Mr Ashton wished to end the matter, he could have a refund of $207.40.
By an email of 1 March 2002 Mrs Ashton delivered an ultimatum, giving LawSure until 4 March to refund the money in full. Some weeks later, on 26 March, the appellant wrote to Mrs Ashton advising a refund of $500 had been made on 8 March, and a further $250 was now being returned. That was because a matter which it was hoped would constitute a “precedent” had been heard and dismissed, so that, “as was formerly agreed”, the balance was now being refunded.
The appellant was twice interviewed by police about the Ashton matter in May 2002. In the first of those interviews, he maintained that Sam Howard existed and was a solicitor, and, indeed, that he had told Stephen Ashton that the cheque to be paid on his behalf was to be made payable to Sam Howard. Sam Howard acted with LawSure; Debra Zhang was a legal secretary in a firm with which the appellant was dealing. He had made an arrangement with Susan Ashton that if the precedent they were relying on failed, her money would be refunded. He had done that after speaking with the solicitors involved, including Sam; they had said that if they could not assist, they would refund the money they were holding.
In a second interview some days later, the appellant maintained the fiction of Sam Howard and now said that he was not a solicitor but merely worked for solicitors. When shown the cheque, he said that the arrangement was that the money was to be sent by Mrs Ashton and held on behalf of Mr Ashton, and was later to be forwarded to a solicitor. He had told Mrs Ashton that the money could be sent to the post office box, and that his wife would cash the cheques so that the funds could then be retained. He had never said that they were being sent to a solicitor. After a break at the end of that interview the appellant admitted that Sam Howard was an assumed name and that he had himself typed the letters to Mrs Ashton. He had consulted a number of people in relation to Mr Ashton’s matter, including Mr Hoskins. On 20 May 2002 the appellant provided an affidavit to police in which he deposed that he had obtained the amount of $250 by way of costs and filing fees from Mr Ashton; that he had tried to get the matter to court, but it was necessary to wait until the application could be finalised; and that he had reached an agreement for reimbursement with Mrs Ashton when she became disgruntled.
The appellant’s evidence was that he had sought $250 from Mr Ashton to cover filing fees if there were an application for judicial review, or a reading fee if a solicitor were involved, and some costs. The notion of obtaining an initial sum of $250 had come from discussions with solicitors he knew, such as Mr Steven Hoskins. Mr Hoskins was to assist by reading the final draft of documents to be filed, and had indicated he would require a reading fee of the order of $200.
Mr Hoskins, the solicitor nominated by the appellant, gave evidence in the Crown case. He said that he knew Mr Reischl and had spoken to him about problems that he and fellow inmates had experienced as a result of the amendments to the Corrective Services Act. He had seen some paperwork from the appellant in relation to s 188 applications. He did not know Stephen Ashton or Vasile Cocuz, and could not recall their being mentioned to him. He was not asked whether he had any discussion with the appellant about a reading fee, or had suggested an amount of $250 or thereabouts.
The appellant said that he had not initially spoken to Mrs Ashton about money. He had been working on preparing a brief for Mr Ashton, and spoke to him about barristers who might represent him. Mr Ashton had asked him to do further work in relation to an appeal in respect of his sentence concerning the lack of parity between his sentence and that of co-offenders. (Mr Ashton agreed he might have discussed the lack of parity in his sentence with the appellant but was not asked whether he had ever asked him to take any action in that regard.) He had told Mr Ashton that $500 would be required in order to obtain an opinion. Mrs Ashton sent $300. He had never said that Mr Martin was briefed, or that there was any specific date for a hearing; nor had he said anything to Mrs Ashton about an interlocutory meeting. He had referred to the sentencing Judge only in the context of his having retired, so that another judge might have to hear any re-opening application.
According to the appellant, he told Mr Ashton that he had a post office box at Runaway Bay and that LawSure was an identity he had used for work he was doing in relation to prisoners. The money order and cheque were cashed, and the funds kept in an envelope in Mr Ashton’s file; they were later refunded to Mrs Ashton after she had made complaint. In early 2002, when Mrs Ashton began to create difficulties about the amount of time the matter was taking, he had invented a pseudonym, “Sam E Howard” as some sort of distraction.
While the appellant admitted to using the name Sam Howard in correspondence with Mrs Ashton, he maintained he had not told her that Sam Howard was a lawyer; he had said something to the effect that he was an organiser or coordinator. The answer to the police officer that Sam Howard was a solicitor was the result of either being under pressure or being led into his answers by the police.
The fact that the cheque paid by Mrs Ashton’s mother was made out to S E Howard was a coincidence; his wife’s name was Susan Elizabeth Howard, and it was to be paid into her account. (The address to which the money was sent, also the address on the LawSure letterhead, was PO Box 323 Runaway Bay; that was, it was established, Ms Howard’s postal address.) The appellant endeavoured to distance himself from the LawSure letters by claiming that although he had told police he had typed them, in fact Debra Zhang had done so. He had merely given some instructions, which had been embellished, and he had not seen the letters before they were sent. The reference in the letter of 21 February to $1,542 having already been expended was an unfortunate misconstruction by Ms Zhang. Ms Zhang, as it happened, was no longer in the country.
The evidence on Count 2
Mr Cocuz said that he had paid $250 in separate amounts of $80 and $170 by way of court fees. The appellant told him the moneys would be paid to the appellant’s own solicitor, who would take action, and “we going to do appeal.” When, after three months nothing had happened, he had contacted the appellant’s wife to ask for his money back, and it was returned within a few days. Among the documents retrieved from the appellant’s hard drive was a copy of a ledger bearing the heading “Client’s [sic] for s 188 applications”, with seven names listed, including those of Mr Cocuz and Mr Ashton. Against each name under the heading “Costs” appeared the figure “$250”, with differing amounts shown as paid.
On 1 November 2002 the appellant was interviewed about the monies paid by Mr Cocuz. He said that he was using the services of Mr Hoskins to mount s 188 applications. He had told Mr Cocuz that if an application could be put together, it would cost $250. If it did not proceed, the money would be paid back to him; if it did, it would be passed on to the solicitor who would be handling the matter. The appellant was in fact still holding the money with Mr Cocuz’s files in a box at his home. Mr Cocuz had “absolutely nothing” to do with LawSure; the ledger was merely “dabbling” and meant nothing.
Some 20 minutes after that interview finished, a telephone call between the appellant and his wife was recorded, in which he advised her that he had told the police that the money was in one of the boxes, and asked “Can you do something about it?” The police were going to come to the house that afternoon. Ms Howard asked “Is it - is it there?”, to which the appellant responded, “Well, you have a guess.” Shortly after, he asked her to “just give them back the money that I should have had there.” In another telephone call about 10 minutes later, the appellant’s wife said that she had found the files and found the money, eliciting the response “You did?”. About an hour later the appellant rang again with the inquiry, “The money you found…that wasn’t in big notes, was it?”, to which his wife answered “Fifties.” In the rest of the conversation the appellant seemed to be at pains to emphasise that the money was not necessarily the actual notes provided by Cocuz. In a final conversation that day, when the appellant was informed that the police had not arrived, he referred to sending the money to Cocuz, and on the following day instructed his wife to obtain a postal note for that purpose.
Ms Howard gave evidence for the Crown. She had, after the first of the phone calls, located a folder in a filing cabinet with Mr Cocuz’s name on it. It contained a foolscap page of information, but no money. Since her husband had indicated that there should be $250 in the folder, she had gone to the bank and withdrawn that amount. When the police did not arrive, she had, as her husband directed, sent the money in the form of a postal order to Mr Cocuz.
The appellant’s evidence was that in Mr Cocuz’s case, $250 was once again obtained to meet filing fees or a solicitor’s reading fee. The matter was likely to be referred to Mr Hoskins. He had started preparing applications and outlines on Mr Cocuz’ behalf. His explanation of the absence of money from the folder bearing Mr Cocuz’ name was that the wrong folder had been located. There was another thicker folder, kept in a box, which would have had the money in it: but since he had been in jail he had not had the opportunity to find it.
The appeal against conviction
The ground of appeal against conviction was that the verdict was “unreasonable or unsupportable.” The appellant argued that the Crown relied on lies which related to later events and could therefore have had no relevance to the charges. In relation to Count 1, he asserted that there could not have been a dishonest obtaining from Mrs Ashton, because he had not had dealings with her until a very late stage, and any money emanating from her had been sent at her husband’s direction, not at the appellant’s request. There were, he said, “inconsistencies” in her evidence as to when things had happened and her dealings with him.
In relation to Count 2, the appellant relied on his references in the November 2002 interview and his evidence to Mr Cocuz’ money being held on a file in a box as demonstrating that the wrong folder had been located by his wife, leaving open the prospect that had the right folder been found, the money would have been on it, intact. He sought to rely on a piece of evidence not before the jury, a letter to Mr Cocuz of 3 June 2002, arguing that it was evidence conclusive of his innocence, and that, given its existence, the jury had wrongly been directed that there was no correspondence between the appellant and Mr Cocuz. He produced an undated newspaper article, presumably printed in the course of his trial, which he said had the capacity to prejudice the jury against him. His outline of argument also contained a contention that because legal matters were involved, the case was beyond the capacity of a jury to understand.
The Crown relied on two statements by the appellant to the interviewing police officers as lies showing a consciousness of guilt: that Howard was a solicitor working on Ashton’s case, and that the money obtained from Cocuz was held in a folder at Ms Howard’s residence. The jury was properly directed as to the use which could be made of them. It was inevitable that the jury would find the claim about Howard to be a lie given that it was taped, and there was evidence by way of admission that it was untrue. It was of considerable significance in the light of Mrs Ashton’s evidence that Sam Howard was one of the lawyers represented to her as working on the matter. It was a lie maintained by the appellant through correspondence and interviews with police and was capable of being regarded by the jury as exhibiting a consciousness of guilt. The appellant’s explanation of introducing the fictional character of Sam Howard in order to divert Mrs Ashton made no sense at all.
The jury was also entitled, on Ms Howard’s evidence and the evidence of the appellant’s post-interview telephone conversations with her, to conclude that the claim about Mr Cocuz’ money being retained was a lie. They were directed to have regard to the appellant’s explanation that the wrong file had been produced; but it would not be at all surprising if, given the tenor of the telephone conversations, they rejected it. If the jury found the appellant’s assertions to the police in this regard to be a lie, it was capable of being regarded as an attempt to distance himself from the truth: that the monies had been used by him.
The letter of 3 June now produced by the appellant was not put to Mr Cocuz, so there is nothing to show that he ever received it. His uncontradicted evidence was that there was no correspondence between him and the appellant, and that evidence was put to the jury with complete accuracy by the learned trial judge in her summing up. In any event, the letter, while expressing a willingness to “arrange return of amount held on your behalf anytime”, urges Mr Cocuz to be patient and wait for the outcome of other matters. The letter is consistent with him fobbing off, and there is nothing in it which would disabuse Mr Cocuz of his belief that the money was being paid to the appellant’s solicitor to have the latter undertake an appeal. Even were it to be accepted as fresh evidence (and there seems no basis on which it could be) it would be of little assistance to the appellant.
The passages complained of in the newspaper article are as follows:
“MONEY from prison inmates to pay for allegedly fake legal action was sent to the de facto partner of a fellow prisoner, Ipswich District Court was told yesterday….
Reischl has pleaded not guilty to two counts of fraud after allegedly duping two fellow inmates at a Wacol correctional centre into giving him money for bogus legal appeals.”
The article accurately reflects the Crown case, and, by use of the adverb “allegedly”, highlights the contentious nature of the assertions that there was no genuine legal action and that the inmates were being “duped”. It is unremarkable, and nothing was said about it at trial. The jury were, in any case, given the warning to confine their deliberations to what was in evidence in the trial. There is nothing in this complaint.
The “inconsistencies” of which the appellant complains in relation to Mrs Ashton’s evidence are really matters where her evidence was different from his; and were, it follows from the verdict, matters on which the jury preferred her evidence. That is not surprising. In my view, the jury had ample evidence before it to support the conclusion that the appellant had created a fictitious law firm and had invented a solicitor, Sam E Howard. The latter’s initials and surname conveniently coincided with that of his wife, who could then cash cheques made out to “S E Howard”. The documents produced by Mrs Ashton and retrieved from the appellant’s computer were consistent with his having sought to bolster that fiction when challenged by Mrs Ashton. The emails and letters purportedly emanating from “LawSure” supported Mrs Ashton’s account of being told to send money for the purposes of legal proceedings, and of a representation to her that there were lawyers working on her husband’s case.
The conduct immediately after the interview in relation to the Cocuz matter again was consistent with a frantic attempt to replace the misappropriated money, to disguise the fact that it had been dissipated, although no work had been done. The appellant’s evidence, particularly in attempting to explain the LawSure letters and emails, his answers to the police, and the absence from the folder of the Cocuz moneys, was singularly unconvincing and it is not at all surprising that the jury rejected it. There was nothing particularly complex about the case, and the verdict is entirely unremarkable in the circumstances. I would dismiss the appeal against conviction.
The appeal against sentence
As to sentence, the appellant was sentenced to six months imprisonment cumulative on the sentence he was already serving, with a parole recommendation on 12 August 2003. The sentence which he was already serving was for offences of misappropriation and fraud, for which he had been sentenced to seven years imprisonment cumulative on an earlier six week sentence for breach of a bail undertaking. The complaint seems to be that the appellant faces what he describes as double punishment, because he has lost remissions and the prospect of parole on his existing sentence. His further argument seems to be that, because but for the charges he would have remained on the WORC scheme with home leave, he should have been given credit for the period when he was instead returned to custody on remand.
The fact that the appellant already had a sentence to serve was a consideration taken into account by the learned trial judge, who said that she would reduce the sentence on the present offences to take into account its cumulative effect. The appellant’s classification on remand was a matter for corrective services authorities. Quite independent of the actual charges, it is not a startling proposition that his holding himself out to other prisoners as a source of legal services, and his taking of money from them for whatever purposes, was reason enough to cease his participation in the WORC program. It is not known, in any event whether those authorities’ concerns were confined to the matters involving Mr Cocuz and Mr Ashton. It by no means follows that the charges on these offences were solely and per se the reason for the appellant’s loss of home leave, of whatever proportions that might have been, and there was no attempt before the learned sentencing judge to suggest that some allowance should be made in this regard. I do not think she was bound to resort to conjecture for the appellant’s benefit. Whether the appellant should or should not have obtained parole is not an appropriate matter for review on this appeal.
The sentence of six months imprisonment was, in my view, a lenient one, considering that the appellant, at the time of the offences, was actually in custody on fraud charges. I would dismiss the application for leave to appeal against sentence.
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