R v Sharma; R v Agrawal - [2017] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sharma; R v Agrawal [2017] QCA 209

PARTIES:

In CA No 2 of 2017:

R
v
SHARMA, Anil
(appellant)

In CA No 4 of 2017:

R
v
AGRAWAL, Priya
(appellant/applicant)

FILE NO/S:

CA No 2 of 2017
CA No 4 of 2017
DC No 279 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport – Date of Convictions: 13 December 2016; Date of Sentence: 13 December 2016 (Kent QC DCJ)

DELIVERED ON:

19 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2017

JUDGES:

Morrison and Philippides JJA and McMeekin J

ORDER:

In CA No 2 of 2017 (Sharma)

The appeal is dismissed.

In CA No 4 of 2017 (Agrawal)

1. The appeal is dismissed.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – FRAUD – where the appellants were jointly charged with one count of fraud to the value of $30,000 or more – where the appellant Agrawal was also charged with one count of attempted fraud – where after a seven day trial both appellants were convicted

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – CIRCUMSTANTIAL EVIDENCE – APPEAL DISMISSED – where the appellants were each directors of a dental practice – where the fraud involving both appellants concerned 1,915 dental treatments allegedly carried out on the mother of the appellant Anil Sharma – where the facts established that, apart from junior assistants, this was a two person practice – where the appellants were the only two persons in a position to have made the claims – where each of the appellants argued at trial that it was the other who had perpetrated the fraud – whether learned trial judge’s failure to direct the jury as to the drawing of inferences from circumstantial evidence resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – EXPERT EVIDENCE – where evidence was introduced at trial that the signatures on the HICAP receipts was that of the appellant Sharma – where there was evidence that it was the appellant Sharma’s signature and not that of the appellant Agrawal on the 1,915 forms – where the evidence came from a witness claiming expertise in the study of handwriting – where the expert’s opinion went unchallenged – where the expert’s opinion was based on detailed comparisons – where the expert’s opinion was that it was more likely that the signature matched the specimen that was shown to be Sharma’s signature – whether the learned trial judge erred in directing the jury as to the weight of the expert evidence with respect to the handwriting on the HICAPS receipts, thereby occasioning a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFIFESTLY EXCESSIVE OR INADEQAUTE – where the applicant…

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.

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Details

Case: [2017] QCA 209
Decision Date: 19 September 2017

CaseChat Overview and Summary

In the matter of R v Sharma and R v Agrawal, the appellants were jointly charged with one count of fraud to the value of $30,000 or more. Agrawal was also charged with one count of attempted fraud. The case arose from fraudulent claims for dental treatments submitted to Medibank Private Limited, with Sharma being the manager and Agrawal a qualified dentist at the dental practice, Lifeline Dental. After a seven-day trial, both appellants were convicted. The primary legal issues before the court were whether the trial judge's failure to direct the jury on drawing inferences from circumstantial evidence resulted in a miscarriage of justice, and whether the trial judge erred in directing the jury on the weight of expert evidence regarding handwriting on the HICAPS receipts.

The court considered whether the trial judge's omission to instruct the jury on drawing inferences from circumstantial evidence constituted a miscarriage of justice. The court held that the jury was adequately directed to consider whether the appellants were involved in the fraud as principals, procurers, counsellors, aiders, or abettors, and that no further direction was necessary. The court also examined the expert evidence regarding handwriting, which was unchallenged and detailed, and concluded that there was no error in the trial judge's direction on the weight of this evidence.

Agrawal applied for leave to appeal against her sentence, arguing it was manifestly excessive. However, Agrawal's counsel conceded that the sentence was appropriate given the information before the sentencing court, and the success of the application depended on the introduction of new evidence. The court refused leave to adduce the new evidence.

The appeal was dismissed in both cases. Agrawal's application for leave to appeal against sentence was also refused.

Orders

Orders of the court

In CA No 2 of 2017 (Sharma)

The appeal is dismissed.

In CA No 4 of 2017 (Agrawal)

1. The appeal is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Agrawal had filed a timely appeal against conviction but subsequently abandoned that appeal. She sought and obtained leave to reinstate that appeal and to argue the first of the grounds urged by Sharma. Agrawal also applies for leave to appeal her sentence on the ground that it is manifestly excessive. She was sentenced to six years imprisonment on count one.Background Facts The appellants were each directors of Lifeline Healthcare Pty Ltd trading as Lifeline Dental, obviously a dental practice. Agrawal was a qualified dentist. Sharma was the manager of the practice. He was involved in administration and reception duties. Sharma was a qualified dentist in India before coming to Australia but had not successfully completed the requirements to become qualified locally as a dentist. No-one else was involved in the practice. The parties were in a de facto relationship for some unidentified time, at least according to their respective cross-examinations of a witness. Sharma suggested the relationship had ended by June 2011.[1][1]AR 162/36-7. The prosecution case on count one concerned 1,915 dental treatments allegedly carried out on one Kamla Sharma, the mother of the appellant Anil Sharma, over the period from 9 June to 14 November 2011.[2] The alleged treatments included but were not limited to 1,104 five surface fillings (an uncommon form of filling in which all five surfaces of the one tooth need filling, the evidence being that one can have a one, two, three, four, or five surface filling), 7 four surface fillings, 80 three surface fillings, 34 two surface fillings, 108 one surface fillings, 14 teeth extractions, 17 bleaches, seven fluoride treatments, 72 recontour fillings, 181 pulp tests, and 260 radiographs.[3][2]AR 356/18-21.[3]Summarised at AR 358-360. Claims were submitted to Medibank Private Limited (the well-known health insurer) totalling $376,725. Of that sum a total of $177,900.90 was paid out to Lifeline Healthcare.[4] The prosecution case was that many of the alleged treatments were either excessive, unreasonable, or in some cases impossible, an example being that treatments were claimed to have been carried out on teeth previously extracted.[4]AR 530. The evidence led from a forensic odontologist at the trial was that the benefit to the appellants from treatments that fell into that category of excessive, unreasonable or impossible was $169,480.50.[5] A forensic accountant analysed the deposits made to the practice account. The monthly totals of the deposits[6] that on the prosecution case related to claims that were excessive, unreasonable, or impossible were:[5]AR 233/47.[6]See AR 231/30-41. The amounts claimed that were said to fall into the category of reasonable treatments was, by contrast, $8,420.40.[7] It should be noted that the categorisation does not mean that the treatments in fact occurred. It meant that the odontologist was not prepared to say, simply from his examination of the records, that the various treatments were “excessive, unreasonable, or impossible”.[7]AR 233/44.

Evidence

Evidence Before The Court

If there was any evidence capable of supporting an innocent hypothesis then it was within the knowledge of the appellants and they chose not to reveal it. What that evidence might be I cannot conceive. There is no merit in this ground.Ground 2 - Evidence of Lau This ground is argued by Sharma alone. It concerns the evidence that the signatures on the HICAP receipts was that of Sharma. The evidence that it was Sharma’s signature, and so not that of Agrawal, on the 1,915 forms came from a witness claiming expertise in the study of handwriting, Mr Lau. There was no challenge to the witness’ expertise. There was no cross examination of Mr Lau and no evidence was given by either appellant. Mr Lau’s unchallenged opinion, based on a detailed comparison, was that it was “more likely” that the signature matched the specimen that was shown to be Sharma’s signature and that this was “a strong opinion”. Nor did Sharma submit to the jury that they should disregard the expert’s opinion. Indeed he expressly relied on it to assert that Agrawal had forged his signature on a letter in which he purportedly confessed to having made the fraudulent claims. English is evidently not Mr Lau’s first language. Mr Lau had charts and specimens on display for the jury as he gave his evidence. After much explaining of the methodology Mr Lau expressed his opinions in the following passage:“Now, having a back slant signature, having the character A done a similar fashion, connection done a similar fashion, and the line density of the L, and the construction, and the skill, and the rhythm, all in combination – therefore, I am able to form opinion – an indication. Because, I said before, there are limitations: (a) it is a short signature, and (b) I don’t have the similar type of initial to compare like with like. That was the basis I’m able to form a stronger opinion than what I had before on the previous two signatures. I can only with limitation consider the combination of the similarity features, and [indistinct] specimen signature to exactly compare like with like. That was the reason I’m able to form a strong opinion, other than the [indistinct] opinion that you could say it’s more likely has been done by the writer of the specimen signatures.Okay. So just to summarise that, when you considered the combination of features you outlined your conclusion was that it was more likely that the person who did the specimen signatures did those signatures as well, and the limitation is because you were unable to compare like-type documents with like. Is that right?---That’s correct.”[55][55]AR 257/22-38. To understand the significance of the statements that I have highlighted it is necessary to quote an earlier passage where Mr Lau explained the hierarchy of the levels of opinion:“Now, the opinion we have in the – in all the government laboratory we have different level opinion. That means on either side of the inconclusive. So when we compare specimen and question signature, we cannot form opinion, we call it inconclusive. In between the one above, because there limitation, we form a qualified opinion that signature was written or not written by the person of the specimen-writer. And then the highest level is done by the writer of the specimen. That means there’s no limitations and there’s sufficient evidence to support the proposition that the question signature was written by the specimen-writer. So they’re the two level above the inconclusive, two below the inconclusive.”[56][56]AR 246/8-17.

Decision

Reasons for decision

The second principle of significance here is that neither this Court nor the jury need to be concerned with mere conjecture. The hypotheses that are of significance are those that are reasonable. An hypothesis that ignores the facts is not a reasonable one. The principles were usefully summarised by Brennan and Gaudron JJ in Knight v The King (1992) 175 CLR 495 at 509:“In Barca v The Queen[50] Gibbs, Stephen and Mason JJ said: “When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King.[51] To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen[52]; see also Thomas v The Queen[53]. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’ (Peacock v The King[54].) These principles are well settled in Australia.” (my emphasis)[50](1975) 133 CLR 82 at 104.[51](1911) 13 CLR 619 at 634.[52](1963) 110 CLR 234 at 252.[53](1960) 102 CLR 584 at 605-606.[54](1911) 13 CLR 619 at 661.Conclusion re Ground 1 There was only one element in contention: was the jury satisfied beyond reasonable doubt that the relevant defendant was involved in this fraud either as principal, procurer, counsellor, aider or abettor? No attempt was made by either appellant to formulate a reasonable hypothesis consistent with innocence and consistent with all the features of the evidence. If no such hypothesis can be formulated there was little point to a direction that the jury exclude such a hypothesis before finding the relevant defendant guilty. The usual direction that before convicting the jury must be satisfied beyond reasonable doubt of each element of the offence was quite sufficient in the circumstances. The only question was: are you satisfied beyond reasonable doubt that this defendant was involved in this dishonesty in one of the ways characterised by the prosecution? To say more would only confuse a simple case. Before leaving the case it is worth noting that the only two people who knew the true state of affairs chose not to reveal what they knew. I have not brought that into account in my analysis. But I have no doubt that it is a relevant matter: Weissensteiner v The Queen (1993) 178 CLR 217; R v Neilan [1992] 1 VR 57. In the former case Mason CJ, Deane and Dawson JJ said at 227-228:“In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Sharma; R v Agrawal [2017] QCA 209
PARTIES:	In CA No 2 of 2017: R v SHARMA, Anil (appellant) In CA No 4 of 2017: R v AGRAWAL, Priya (appellant/applicant)
FILE NO/S:	CA No 2 of 2017 CA No 4 of 2017 DC No 279 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport – Date of Convictions: 13 December 2016; Date of Sentence: 13 December 2016 (Kent QC DCJ)
DELIVERED ON:	19 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2017
JUDGES:	Morrison and Philippides JJA and McMeekin J
ORDER:	In CA No 2 of 2017 (Sharma) The appeal is dismissed. In CA No 4 of 2017 (Agrawal) 1. The appeal is dismissed. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – FRAUD – where the appellants were jointly charged with one count of fraud to the value of $30,000 or more – where the appellant Agrawal was also charged with one count of attempted fraud – where after a seven day trial both appellants were convicted CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – CIRCUMSTANTIAL EVIDENCE – APPEAL DISMISSED – where the appellants were each directors of a dental practice – where the fraud involving both appellants concerned 1,915 dental treatments allegedly carried out on the mother of the appellant Anil Sharma – where the facts established that, apart from junior assistants, this was a two person practice – where the appellants were the only two persons in a position to have made the claims – where each of the appellants argued at trial that it was the other who had perpetrated the fraud – whether learned trial judge’s failure to direct the jury as to the drawing of inferences from circumstantial evidence resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – EXPERT EVIDENCE – where evidence was introduced at trial that the signatures on the HICAP receipts was that of the appellant Sharma – where there was evidence that it was the appellant Sharma’s signature and not that of the appellant Agrawal on the 1,915 forms – where the evidence came from a witness claiming expertise in the study of handwriting – where the expert’s opinion went unchallenged – where the expert’s opinion was based on detailed comparisons – where the expert’s opinion was that it was more likely that the signature matched the specimen that was shown to be Sharma’s signature – whether the learned trial judge erred in directing the jury as to the weight of the expert evidence with respect to the handwriting on the HICAPS receipts, thereby occasioning a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFIFESTLY EXCESSIVE OR INADEQAUTE – where the applicant…