R v Wynhoven
[2008] VSCA 234
•27 November 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 40 of 2008
| THE QUEEN |
| v |
| RONALD WILLIAM WYNHOVEN |
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JUDGES: | MAXWELL P, NETTLE & WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 November 2008 | |
DATE OF JUDGMENT: | 27 November 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 234 | |
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CRIMINAL LAW – Application for leave to appeal against conviction – Attempting to obtain financial advantage by deception and obtaining financial advantage by deception – Whether conviction on one count inconsistent with other acquittals – Whether verdicts unsafe and unsatisfactory – Whether trial judge erred by admitting evidence of witness who died after testifying at committal – Leave to appeal refused
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R I Gipp | Commonwealth Director of Public Prosecutions |
| For the Applicant | Mr D Just | Victoria Legal Aid |
MAXWELL P
NETTLE JA
WEINBERG JA:
The applicant, Ronald Wynhoven, was convicted in the County Court, at Geelong, of five counts of attempting to obtain a financial advantage by deception (counts 1, 2, 3, 5 and 6) and three counts of obtaining a financial advantage by deception (counts 4, 7 and 18). He was acquitted of the remaining 13 counts on the presentment. He was sentenced to a term of three years’ imprisonment with all but 12 months suspended. He now seeks leave to appeal against conviction.
Counts 1 to 4 on the presentment related to representations which he, as an accredited home loan broker, made on behalf of one Judith Williams, since deceased, to two separate home loan lending institutions. Each of counts 1, 2 and 3 involved unsuccessful applications to a body known as Tonto Home Loans. Count 4 concerned a successful application made to another home loan lending institution, Pepper Homeloans Pty Ltd.
Counts 5 and 6 involved unsuccessful applications made on behalf of Edward and Olive Pilcher to Pepper Homeloans Pty Ltd. Count 7 related to a successful application on behalf of the Pilchers to yet another home loan lending institution, Mortgage Management Corporation Pty Ltd.
Finally, count 18 involved a Mrs Margaret Senior, who at all times lived in Canberra. She received what was described as a ‘cold call’ from Karen Ajaye, a Canberra-based consultant acting on behalf of the applicant. Mrs Senior sought a loan of $30,000 to meet her current expenses (including a credit card liability), and also so that she could travel interstate. Her Canberra home was at the time unencumbered. After Mrs Senior’s initial discussion with Ms Ajaye, the applicant took over negotiations. Acting on his advice, Mrs Senior obtained a loan for $235,000. It was clear on the evidence that neither Mrs Senior, nor indeed Ms Williams or the Pilchers, had any experience in, or understanding of, financial matters.
In the end, Mrs Senior acted upon the applicant’s advice to invest $200,000 of the $235,000 obtained in one of the applicant’s private business ventures. That venture failed and she lost the whole of that sum. That was a significant pecuniary loss to her as she was of modest means. It left her home encumbered and caused her great emotional distress.
The applicant relies upon three grounds in support of his application for leave to appeal. They are as follows:
Ground 1
The conviction on count 18 is inconsistent with the acquittals on other counts 8 to 21.
Ground 2
The convictions on counts 1, 2, 3, 4, 5, 6 and 7 are unreasonable or cannot be supported having regard to the evidence;
Ground 3
That the ruling of [the] learned Judge not to exclude the deposition of witness Judith Williams from trial has produced a miscarriage of justice.
We shall deal with these grounds in that same order.
Ground one
In order to understand this ground, it is necessary to examine with some care the representations alleged in count 18. They were as follows:
a)investments would provide a return of 13.5 per cent per annum in the form of monthly interest payments on amounts invested for a minimum of two years;
b)investments were used to provide loans for bridging finance to builders at high rates;
c)all interest payments would be guaranteed by the assets of the fund;
d)investments were only made in quality properties;
e)rules minimising risks for investments included only funding medium priced housing and no houses over $600,000;
f)the said Ronald William Wynhoven had over 25 years experience in the building and construction industry and had developed a proven and prudent selection criteria when buying investment properties.
The applicant submitted that these representations bore close resemblance to those alleged in relation to other supposed victims (counts 8 to 21, apart from count 18). The jury having acquitted the applicant on those other counts, it was submitted that the conviction on count 18 should also be quashed.
The applicant drew attention to the fact that all of the alleged victims in relation to these counts were the subject of warnings given by the trial judge as to the dangers of convicting on their unsupported testimony. In each case, the witnesses had sworn false affidavits, at the applicant’s request. The affidavits had been used by the applicant in 2004 in answer to a Federal Court proceeding brought against him and his companies by the Australian Securities and Investments Commission (‘ASIC’). The witnesses had all been granted immunity from prosecution in respect of the false affidavits in return for giving evidence against the applicant. Appropriate warnings as to the need to scrutinise their evidence with particular care were therefore required, and those warnings were given.
The applicant relied upon factual inconsistency of the kind discussed in Mackenzie v R[1] and MFA v R.[2]
[1](1996) 190 CLR 348.
[2](2002) 213 CLR 606.
The Crown responded by submitting that the representations pleaded in relation to count 18 differed significantly from those pleaded in relation to counts 8 to 17 and 19 to 21. In summary, the Crown’s position was as follows:
· with regard to representation (a), that investments would provide a return of 13.5 per cent per annum for a minimum period of two years, that particular representation was not made in any other count. Count 19 did, however, involve a representation that there would be a return of 12.5 per cent per annum on amounts of not less than $50,000 for a 12-month period;
· with regard to representation (b), the provision of loans for bridging finance to builders at high rates, that representation was made to investors in counts 14 and 16 but not to others;
· with regard to representation (c), that all interest payments would be guaranteed by the assets of the fund, that representation was unique to count 18;
· with regard to representation (d), that investments would only be made in quality properties, that representation was not made in any other count, although similar representations were made in counts 11 and 14;
· with regard to representation (e), that risks were minimised by funding only medium-priced housing, and no houses over $600,000, that representation was not made to investors in any of the other counts; and
· with regard to representation (f), regarding the applicant’s experience in the building and construction industry, and his having developed a ‘proven and prudent selection criteria when buying investment properties’, that representation was not made to investors in any of the other counts.
The Crown submitted that given the different nature of the representations alleged, and the different persons to whom those representations were said to have been made, there could be no factual inconsistency of a kind that would cause this Court to conclude that the conviction on count 18 was in any way unsafe or unsatisfactory.
The applicant replied by submitting that even if there were the differences in the alleged representations identified by the Crown, that was of no consequence. The argument was that the only representation pleaded in relation to count 18 that was ultimately supported by the evidence led was representation (a). It followed that whatever differences there may have been between count 18, and the other counts in relation to representations (b) to (f), should be disregarded. In making that submission, it was conceded that the conviction on count 18 could not be impugned on the basis that there was insufficient evidence to support a finding that representations (b) to (f) were made. A finding that representation (a) was made would be sufficient. Moreover, it could not be said that a finding that representation (a) was made was not reasonably open to the jury.
The applicant’s case on factual inconsistency faced formidable hurdles from the outset. The jury were entitled to form whatever view they regarded as appropriate in relation to particular witnesses. It was open to them to regard Mrs Senior as a credible and reliable witness, but entertain doubts as to the truthfulness or accuracy of the evidence given by other investors in relation to the counts on which they acquitted.
It is clear that the Crown’s submissions regarding the differences between the representations pleaded in relation to count 18, and those alleged in relation to the other counts, have substance. The applicant’s attempt to persuade this Court that there was no evidence to support representations (b) to (f) foundered in the face of both documentary and oral evidence given by Mrs Senior to the contrary.
It will be sufficient to provide just some examples. The Crown tendered a brochure prepared by the applicant, and provided by him to Mrs Senior in support of its case. The brochure was headed ‘Seed Unit Trust Fund and Seed Investments’. This was the private investment into which Mrs Senior put her $200,000.
The brochure undoubtedly contained representation (a). There has never been any dispute about that. Paragraph 7.0 was headed ‘Risk’. Under paragraph 7.2, which was headed ‘Minimising Risk’, the following representations were made:
Despite the inherent risks of investing in general, The Fund managers reduce those risks to debenture holders by making sure that the Group adheres to the following:
vSelecting only quality properties.
vStrictly following to our “12 rules–to-fund” policy.
vPooling properties and therefore providing diversification.
vApplying proven and prudent property selection criteria.
vHaving every secured property valued by an independent registered valuers [sic].
Seed Investment fund and its manager the Group have substantial experience in managing loan risk by:
vOver 25 yrs. Experience in the building/construction industry.
vOver 5 yrs. Experience in arranging and managing loans.
vRegistered with the MIAA (Mortgage Industry Association of Australia) as a full member, having access to the ombudsman scheme.
vFully accredited as a Mortgage originator.
vAccredited to write mortgages with over fifteen major lenders, both wholesale and retail.
It is difficult, in the face of this document, to see how the applicant could maintain his submission that there was no evidence to support at least representations (d) and (f). In addition, paragraph 7.3 asserted that ‘all interest payments and dividends are guaranteed by the assets of the fund’. That plainly encompassed representation (c).
If one turns to the oral evidence given by Mrs Senior, the weakness of the applicant’s case in support of this ground becomes even clearer. For example, in relation to representation (e), Mrs Senior was asked to recall, as best she could, what the applicant had said to her. She replied:
… [H]e told me a story about how his team invested the money and he mentioned a building in St Kilda that he’d wanted to buy but it was $600,000 and that the investment team had said, “Absolutely not; that we do not go over the medium price housing” and so he said, “Even though I knew it was great we always strictly speak to our guidelines to minimise the risk for you”.
It is difficult to see how this evidence can be regarded as other than wholly supportive of the representation pleaded as (e), namely, that rules minimising risks for investments included only funding medium-priced houses and no houses over $600,000.
The same can be said of Mrs Senior’s evidence regarding representation (f). Mrs Senior was taken to the brochure, and asked about paragraph 7.2. She said that the applicant went through each point contained within that paragraph and emphasised the length of time he had been in the industry, the fact that the fund was registered with the Mortgage Industry Association of Australia, and that ‘all interest payments and dividends were guaranteed’. Mrs Senior said that the applicant stressed this last point and assured her that her investment was safe because ‘we were guaranteed by the assets of the fund’. Plainly, this evidence, if accepted, was sufficient to enable the jury to be satisfied that representation (f) was made.
The jury were directed to give separate consideration to each count. They were also told that the evidence of a particular witness could be accepted in whole or in part. They were correctly instructed as to the onus of proof borne by the prosecution.
As the High Court noted in MFA, an acquittal on one count does not necessarily involve a rejection of the evidence in support of that count. A juror might consider it more probable than not that a witness is telling the truth, but require something more before reaching a conclusion beyond reasonable doubt. A verdict of not guilty does not necessarily imply that the witness has been disbelieved, but may simply reflect a cautious approach to the discharge of a heavy responsibility.
There are cases where it would be unsafe to allow a conviction to stand, having regard to acquittals on other counts. This would be more likely to occur where the evidence was that of a single witness in relation to all counts, and the offences alleged were all said to have taken place on the one occasion. The recent decision of this Court in R v JA[3] provides an illustration of this principle. The present case, which concerns different representations made to different witnesses at different times, is far removed from that scenario.
[3][2008] VSCA 169.
In short, there is no substance in ground one. There is no inconsistency between the verdict of guilty on count 18, and the acquittals on the other counts, of a kind that would lead to the conclusion that the guilty verdict was unreasonable, or could not be supported, having regard to the evidence.
Ground two
As regards ground two, the applicant contends that the convictions on counts 1 to 7 are unreasonable or cannot be supported having regard to the evidence. He supports that ground in relation to counts 1 to 4 (the Williams counts) on the basis that the evidence of Ms Williams was of much reduced weight because she had died by the time that the trial began and only her committal testimony was before the jury.
Ms Williams was cross-examined at committal. Her evidence, including that cross-examination, was placed before the jury. It was submitted that the committal cross-examination was of little utility since it would inevitably be less effective than trial cross-examination. Given that these counts depended entirely upon Ms Williams’ evidence, and given what were said to be discrepancies in her account, it was submitted that all verdicts that relied upon her version of events should be quashed.
We have examined Ms Williams’ evidence with some care. She gave that evidence at a committal proceeding on 28 March 2006. She acknowledged having received an indemnity from prosecution in relation to a false affidavit which she had sworn, at the applicant’s request, in circumstances described below. She also identified several false statements that she had made in support of her application for a loan.
In a statement that she had made to the police on 28 February 2005, which she adopted as true and correct, she described herself as having been a pensioner since 1989. She said that in late 2002, she resided at 16 Barcelona Street, Norlane West, a property that she owned. At that time, the property was mortgaged to the Commonwealth Bank in the sum of $60,000. Her monthly repayments were $442. Her son, David, was also listed on the mortgage as he had helped her financially in purchasing the property.
According to Ms Williams, at around that time David and his wife wanted to buy a house of their own. Ms Williams needed to refinance her home, and wanted to put the mortgage into her name exclusively. In around November 2002, she saw an advertisement for Seed Home Loans in the Geelong Advertiser. She telephoned the number listed and, within a few days, the applicant visited her at her home to discuss her mortgage.
Ms Williams said that she told the applicant that she had no income apart from her pension. She told him that she wanted to replace her current home loan, which was in the joint names of herself and her son, with a loan in her name only. The applicant told her that she could do better than that. He said that if she had money to invest, she could receive monthly interest payments, which would allow her to lead a better life. He told her that her house was worth more than the current mortgage and that she could borrow against the equity in her home. He advised her to apply for a larger loan than the amount owing on the mortgage, and to put the extra money into an investment that would supplement her pension. He referred her to Seed Investments, and suggested that she borrow an extra $60,000, which she could invest with him at 15 per cent per annum. He said that the interest payments would be sufficient to cover both the mortgage repayments and to provide her with extra income.
Ms Williams said that during the meeting the applicant told her that Seed Investments had an interest in a ‘top-secret’ $50 million weather business that had ties to the Saudi Arabian Government and to an Arab sheik.
According to Ms Williams, between November 2002 and February 2003, she and the applicant had a number of discussions regarding this proposal. At about that time, Ms Williams canvassed with her son the prospect that she move in with him and his wife at their Teasdale property, and that her daughter and her husband move into Ms Williams’ house at Norlane. The rent that they would pay would assist Ms Williams financially. However, these plans never came to fruition.
Ms Williams said that during the course of one meeting with the applicant she told him about her possible move to live with her son. He endorsed the idea, and suggested that she would need to complete a rental agreement with her daughter to make it all legal.
Subsequently, Ms Williams revised her plans. She said that she told the applicant that she could not borrow $60,000 because such a large investment might affect her pension. She told him that she was only willing to borrow an extra $30,000. The applicant expressed disappointment but accepted her terms.
Ms Williams recalled having asked the applicant whether there were any risks associated with his proposal. According to her, he said that there was always a risk in these things but that this particular venture was ‘very low risk’. He said that her money would be as safe with him as with anyone else.
Early in 2003, Ms Williams decided to proceed with the proposal. She told the applicant that she would borrow a total of $130,000 to refinance the existing mortgage, pay for some house repairs, and put $30,000 into Seed Investments. She said that she signed various papers that he put in front of her without reading them. At about the same time, she was provided with a document headed ‘Seed Unit Trust Fund and Seed Investments’, the brochure to which we have previously referred. The applicant told her that this document was just a formality, and she said that she did not read it.
In March 2003 Ms Williams was told that her loan had been approved by Pepper Homeloans and that a letter would be forthcoming. A week or two later, the letter had still not arrived. She rang the applicant and eventually a letter arrived from Gadens Lawyers, Pepper Homeloans’ solicitors. The letter was addressed to her son at his Teasdale address rather than to herself. She asked the applicant why that should be so. He said that it was of no consequence as she would soon be living at Teasdale in any event. Ms Williams said that she corrected the applicant, telling him that she had no definite plan to do so. She informed him that although the matter had been discussed, nothing concrete had been resolved.
The letter from Gadens contained a bundle of documents, one of which she had to sign. She did so. The next she heard was that the $30,000 had been provided to Seed Home Loans, and not Seed Investments as she had anticipated. The applicant told her that the interest payments would be made directly into her bank account. He persuaded her to open an account with the Bendigo Bank to receive the payments. She received monthly interest payments of $205 from May 2003 until March 2004, and used them to pay the mortgage and other bills.
Ms Williams said that in late 2003, she foreshadowed redeeming the entire $30,000 investment. The applicant told her that this could be arranged. However, as events transpired, she was unable to recover any of that money.
The applicant told Ms Williams, after March 2004, that he could not repay her capital because ASIC had frozen his accounts. He told her that if she wanted to recover her investment, she would need to swear an affidavit saying (falsely) that she was satisfied with the way in which he was handling her investments. This would allow him to get ASIC ‘off his back’, and thereby unfreeze her investment. Based on that representation, she swore the affidavit. However, from that time onwards, she received no further interest payments and, as indicated, her investment was lost.
Ms Williams was then taken to the detail of some of the documents she had signed prior to obtaining the loan. One recorded her occupation as ‘self-employed investor’, which she said was entirely untrue. She was shown a document in which Seed Home Loans had written to Tonto Home Loans asserting that Ms Williams had had a tenant in her home for the previous three years. That statement was also false. So too was the representation that she wanted to use equity in her home to ‘purchase another property’. Other false statements related to her having changed address, and having moved to the Teasdale property.
It is unnecessary to go further into the details of Ms Williams’ evidence in-chief. In broad terms, she said that the documentation prepared by the applicant in support of her loan was replete with false statements, including notably one that suggested that she was a member of a religious order in which family members put funds into a pool and engaged in profit sharing.
The jury then had read to them the cross-examination of Ms Williams at the committal hearing. The trial transcript records some 13 pages of detailed questioning. In particular, she was challenged about her evidence that the affidavit that she had sworn was false. She was also challenged with regard to her version of various conversations that she had had with the applicant. It was put to her that she had never told him that the affidavit contained statements that were incorrect. She insisted that she had told him that she was not happy about signing it. She claimed that he had ‘stood over’ her, and told her that she would lose her money if she did not swear it.
Again, it is unnecessary to go through the detail of the cross-examination. It is sufficient to note simply that this was no mere perfunctory exercise. It was a full-blown challenge to Ms Williams’ credibility. It brought out some discrepancies and elicited a number of concessions from her.
It is, of course, true that the jury were deprived of the opportunity to assess Ms Williams’ demeanour by simply having her evidence read to them. Nonetheless, this was not a case in which demeanour was likely to have assumed critical significance. The representations made by the applicant on behalf of Ms Williams were demonstrably, and outrageously, false. The notion that she had cunningly deceived him into making these representations seems far fetched. She was, as previously noted, a pensioner with no real understanding of financial matters. Her account of her dealings with him seems to us to have been entirely plausible. Certainly, it was open to the jury to regard it that way.
Applying the well-established principles laid down in M v The Queen,[4] we think that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. Ms Williams’ evidence did not contain discrepancies, display inadequacies, or otherwise lack probative force in such a way as to suggest that there is a significant possibility of the applicant’s innocence. Nor does the fact that she was an indemnified witness lead us to that conclusion. Rather, she appears to have emerged relatively unscathed through cross-examination, and to have adhered to an account that was both coherent and plausible.
[4](1994) 181 CLR 487.
As regards counts 5, 6 and 7, the applicant submitted that the evidence in support of those counts was insufficient to allow the convictions to stand. He relied upon the fact that Edward Pilcher, who was a significant witness in relation to these counts, had been given immunity from prosecution. He submitted that Mr Pilcher therefore had a strong motive to lie. In addition, he submitted that Mr Pilcher’s credibility was damaged by his having given false evidence at trial that various signatures attributed to him had been forged.
Mr Pilcher’s evidence in relation to counts 5, 6 and 7 was subjected to extensive cross-examination. He was an indemnified witness, as were many others. That fact was brought home to the jury, and they were given strong directions regarding its significance. In the particular circumstances of this case, it does not lead to the conclusion that he ought not to have been believed.
The position regarding the signatures was somewhat complex. Mr Pilcher claimed that his signatures on a photocopied document dated 12 May 2003 had been added to that document without his knowledge. Put simply, his claim was that someone had forged his signature by photocopying it onto the document.
Mr Pilcher subsequently qualified that evidence by saying that one of the two signatures appeared to be his, but claiming that he had no recollection of ever having had the document in his possession before it was presented to the lending institution.
The original of the document having been called for and produced, Mr Pilcher was then taken to it in some detail. He agreed that the document appeared to be an original. He was shown what purported to be his original signature, and acknowledged that this was so. He then, under pressure, resiled from his original insistence that he had neither read nor signed the relevant documentation.
Plainly, Mr Pilcher was mistaken about his signature having been forged on the photocopy of the document originally shown to him. However, it is a far cry from having reached that conclusion to a finding that his entire account of what the applicant had said to him, and done, should be rejected.
If Mr Pilcher lied about the signatures, they were pointless lies, easily exposed. There would be no reason for him, having been fully indemnified from prosecution, to minimise his involvement in what had occurred, and to attempt to shift responsibility onto the applicant. There was nothing to suggest that he was pressured by the police into implicating the applicant, or that he devised an elaborate plan to do so. Once again, applying the principles laid down in M v The Queen, we are not persuaded that the jury ought to have entertained a reasonable doubt regarding the applicant’s guilt on these counts.
Ground three
The applicant contends that the trial judge erred in having allowed the deposition of Judith Williams to be read to the jury.
The Crown submitted that the circumstances under which depositions may be used are set out in s 55AB of the Evidence Act 1958. The conditions for Ms Williams’ deposition to be tendered were met.[5] There was full opportunity to cross-examine her at committal. The applicant took advantage of that opportunity. No error had been demonstrated in the exercise of the trial judge’s discretion under the section.
[5]See generally R v Horan [1951] VLR 249, 251; R v Henriques (1991) 93 Cr App Rep 237, 242; and R v Mendham & Foster (1993) 71 A Crim R 382, 388.
In our view, the Crown’s submission should be accepted. This is an attack upon the exercise of a discretion.[6] In accordance with the usual principles, the exercise of that discretion must be shown to have miscarried. The applicant has not shown that the trial judge took into account any irrelevant consideration, or failed to have regard to any relevant consideration. Nor has he shown that the trial judge erred in any other regard.
[6]Initially, the submission for the applicant eschewed any attack on the exercise of discretion. The argument instead was that the admission of the evidence had occasioned a miscarriage of justice. When it was pointed out that this argument would stand or fall with ground two, the submission shifted focus to the exercise of discretion itself.
No exception was taken to his Honour’s charge regarding this matter. The jury were correctly directed that they had not had the benefit of seeing Ms Williams, nor of hearing her evidence tested in cross-examination. They were told on more than one occasion that they should take this into account when evaluating its reliability. No challenge to his Honour’s direction has been mounted before us, and for good reason.
Conclusion
None of the grounds argued in support of the application for leave to appeal against conviction has been made out. It follows that leave to appeal should be refused.
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