Werden v The Queen
[2015] VSCA 72
•23 April 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0023
| GABRIEL WERDEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY, OSBORN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 March 2015 |
| DATE OF JUDGMENT: | 23 April 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 72 |
| JUDGMENT APPEALED FROM: | DPP v Werden (Unreported, County Court of Victoria, Judge Mason, 22 October 2013 (date of conviction), 20 December 2013 (date of sentence)) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant found guilty of nine charges of obtaining financial advantage by deception and 14 charges of attempting to obtain financial advantage by deception – Whether judge erred by admitting evidence of the use of gloves by the accused for the purpose of posting an envelope when it was not established that the mail contained fraudulent material – Whether prosecutor’s cross-examination as to the applicant’s failure to take the oath as opposed to an affirmation gave rise to a substantial miscarriage of justice – Whether questions asked by the trial judge during cross-examination of the applicant gave rise to a substantial miscarriage of justice – Whether photogrammetric evidence ‘fresh evidence’ – Whether competent counsel should have called photogrammetric evidence at trial – Whether verdicts unsafe and unsatisfactory – No substantial miscarriage of justice arose – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The applicant appeared in person | |
| For the Respondent | Ms F L Dalziel with Mr D P Hannan | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
ASHLEY JA:
I agree in the reasons of Osborn JA, and with the order which his Honour proposes.
OSBORN JA:
On 22 October 2013, following a seven week trial, the applicant was found guilty by a jury of nine charges of obtaining financial advantage by deception and 14 charges of attempting to obtain financial advantage by deception. He now seeks leave to appeal his conviction on a series of grounds. The Court has directed that the matter be heard on the basis that if leave is granted the hearing be treated as the hearing of the appeal.
The alleged offending occurred over two periods the first during 2010 between July and December (charges 1 to 17) and then after a gap of some six months the balance of the offending in 2011.
The circumstances of the alleged offending were summarised by the trial judge in an annexure to his sentencing remarks and it is convenient to adopt that summary for present purposes.
Charge 1 Attempt to obtain financial advantage by deception— ME Bank $230,000
1)On the 27th June 2010 the accused contacted MM by phone regarding vacant land in Manns Beach which he and his wife owned and had advertised for sale on internet site DIY (Do It Yourself) property sales. The property was advertised for $95,000.
2)The accused purported to be Tony Tont and told MM he wished to purchase the property on behalf of Mark DeSilva, an overseas purchaser.
3)On the 15th July 2010 the accused lodged a home loan application online (internet) with ME Bank for a loan of $230,000 to purchase the property at Manns beach. The accused lodged the application in the name of Tony Tont of an address in Essendon.
4)The accused provided falsified documents to support the home loan application in the name of Tony Tont including copies of a Victorian driver’s licence, Victorian birth certificate, signed Contract of Sale, a
Telstra bill, a Telstra Super statement, a Victorian Teachers Credit Union (VTCU) account, an ING Masterfund statement, PAYG payment summary, and pay slips. To add authenticity the documents were stamped as being a true copy of the original and signed by a purported solicitor, being a “David Peterson”.
5)The loan was processed by ME Bank and identified as fraud and declined. The accused attempted to obtain $230,000 from ME Bank.
6)The accused used an identical method of lodging home loan applications for three further applications, only changing the fictitious applicants’ names and personal details.
Charge 2: Attempt to obtain financial advantage by deception — CBA $240,000
7)On the 23rd July 2010 the accused contacted NF, a mobile banker with the CBA, purporting to be Mark DeSilva of an address in Essendon. He informed NF he was seeking finance for land he had purchased at Manns Beach.
8)The accused forwarded falsified documents to NF via email to support the application. These included a VTCU statement of account with the same account number and two company payslips. As a result NF submitted a home loan application to the CBA for $240,000 on the 25th July 2010.
9)A valuation was conducted on the land at Manns Beach, which came in at $70,000, which was well below the $240,000 the accused had requested to borrow. NF attempted to meet the accused in person but the accused informed him he was interstate and correspondence could be by mail instead.
10)The loan application was subsequently declined and the accused notified by letter and email on the 2nd August 2010.
Charge 3: Attempt to obtain financial advantage by deception — AMP $240,000
11)In July 2010 the accused contacted JF by phone regarding vacant land in Woorien North which JF and her husband owned and had advertised for private sale on an internet site for $90,000.
12)The accused purported to be Tony Tont and told JF he wished to purchase the property on behalf of an overseas investor for $300,000 with a rebate clause that the remaining $210,000 is returned to him.
13)On the 22nd July 2010 the accused contacted DD, a legitimate mortgage broker for AMP, purporting to be Mark Grosso of an address in Essendon. He informed DD he was seeking finance for land he had purchased at Woorien North.
14)The accused forwarded an AMP home loan application and falsified documents to DD via email to support the application. Again, company payslips were forwarded, a VTCU statement, an Optus bill and a birth certificate were also included which were all falsified documents. A false licence number was also put forward by the accused. The phone number provided by the accused was the same as that provided when he purported to be Tony Tont and Mark DeSilva in the first 2 applications.
15)DD commenced a home loan application but had some concerns and requested to meet the accused in person. The accused had no further contact with DD and no official loan application was submitted to AMP.
Charge 4: Attempt to obtain financial advantage by deception - CBA $240,000
16)On the 5th August 2010 the accused contacted NF by email purporting to be Mark Grosso of an address in Essendon, seeking finance for land he had purchased at Woorien North.
17)The accused forwarded a home loan application and falsified support documents including a birth certificate, Optus bill, 2 company payslips and a VTCU statement to NF to prepare and lodge a loan application. NF had concerns regarding the application and contacted CBA group security. An email was forwarded to the accused on the 12th August 2010 requesting further documents and to meet in order to progress the application.
18)The accused had no further contact with NF and no official loan application was submitted to the CBA. The accused attempted to obtain $240,000 from the CBA.
Charge 5: Obtain financial advantage by deception — Ascot Vale newsagency $825.44
19)At approximately 1.37 pm, on the 8th August 2010 the accused contacted the classified section of the Herald Sun newspaper purporting to be Charlie Crisp and placed an advertisement in the finance section for re-financing with Charlie Crisp and gave a contact phone number.
20)At approximately 2.36 pm, the same day the accused contacted the classified section of the Herald Sun newspaper purporting to be from the Ascot Vale newsagency and completed the advertisement. An invoice was forwarded to the Ascot Vale newsagency for $825.44. The accused made no payment for the advertisement.
21)The advertisement ran in the finance section of the Herald Sun newspaper between the 15th August 2010 and the 21st August 2010.
22)The accused received a number of calls from various persons wishing to re-finance their property as a result of the newspaper advertisement.
Charge 6: Attempt to obtain financial advantage by deception — ME Bank $125,000
23)In or around August 2010 DK observed the re-financing advertisement in the Herald Sun newspaper and contacted the accused discussing how he wanted to re-finance property he owned in Lockington in order to borrow $60,000.
24)The accused had contact with DK over a five to six-week period during which he requested and received photocopies of DK’s identification and rates notice. He faxed documents to DK for him to sign. Once signed the documents were faxed back to the accused. The accused also sent a courier to the address to collect the certificate of title to the property from DK which was delivered to a letterbox at an address in Essendon, from which the accused collected it.
25)On the 10th August 2010 the accused lodged a home loan application online with ME Bank for a loan of $125,000 to purchase property at an address in Lockington. The accused lodged the application in the name of Ronald JARVIS of an address in Essendon.
26)The accused forwarded falsified documents to support the home loan application. These included an Optus bill, CUA statement, payslips from his purported employer, a Telstra Super account and a birth certificate with the same number as in charges 3 & 4. This was purportedly certified by a Certified Practising Accountant. The loan was processed by ME Bank and identified as fraud and declined. This attempt failed.
27)In early August 2010 the accused contacted DM, director of a conveyancing company, purporting to be DK and requested a Contract of Sale and a Section 32 be prepared in relation to a property in Lockington which he was selling. The contract and Section 32 were completed by DM and forwarded by mail to the accused in Essendon.
Charge 7: Obtain financial advantage by deception — Ascot Vale newsagency $471.68
28)At approximately 12.29 pm, on Saturday the 1st September 2010, the accused contacted the classified section of the Herald Sun newspaper purporting to be Charlie Crisp and placed an advertisement in the finance section for re-financing.
29)At approximately 12.57 pm, the same day, the accused contacted the classified section of the Herald Sun newspaper and purported to be from the Ascot Vale newsagency. He completed the advertisement and an invoice was subsequently forwarded to the Ascot Vale newsagency for $471.68. The accused made no payment for the advertisements.
30)The advertisement ran in the finance section of the Herald Sun newspaper between the 2nd September 2010 and 8th September 2010.
Charge 8: Obtain financial advantage by deception – AMP $460,000
31)On 15th August 2010 ML observed the re-financing advertisement in the Herald Sun newspaper and contacted the accused discussing how his wife AZ wanted to re-finance a property she owned in Roxburgh Park in order to borrow $60,000.
32)The accused had regular phone contact with ML and couriered a re-financing document to AZ in Roxburgh Park, which she signed. The document was then couriered to a letterbox at an address in Essendon, where the accused collected the document.
33)On the 18th August 2010 the accused emailed DD purporting to be Alan Farmer of an address in Essendon, requesting finance for an urgent property settlement regarding property he had purchased in Roxburgh Park.
34)The accused forwarded falsified documents to support the home loan application. These included a photocopy of a drivers licence and birth certificate purportedly certified, 2 company payslips, a PAYG summary, a signed contract of sale as well as a Telstra bill. As a result DD submitted a home loan application to AMP for $460,000 on the 18th July 2010.
35)The loan was approved with settlement taking place on the 9th September 2010.
36)The accused had requested thirteen disposal cheques be made out in different names for various denominations. A conveyancer from a legal services firm attended the settlement on behalf of the accused and received the settlement cheques. They were collected by courier and delivered to a letterbox at an address in Essendon.
37)The accused collected the cheques and mailed them to ING where they were deposited into false bank accounts which he had opened to launder the money. Once the cheques had cleared the money was withdrawn at different automatic teller machines around Melbourne until there were insufficient funds left.
38)The accused obtained $460,000 from AMP which has not been recovered. No payment had been made on the Farmer loan.
39)The Title at the Roxburgh Park property was changed from AZ to Alan Farmer of an address in Essendon. AZ has engaged solicitors and is currently attempting to regain the Title to her property.
Charge 9: Obtain financial advantage by deception — CBA $126,000
40)In late August early September 2010 the accused contacted AF, a legitimate mortgage broker with a home loans company in Taree, New South Wales. He purported to be Martin James of an address in Essendon, seeking finance for land he had purchased in Lockington.
41)The accused forwarded falsified documents to support the home loan application. These included payslips from his purported employer, a driver’s licence, birth certificate and a CUA statement. AF submitted a home loan application to the CBA for $240,000 on the 25th July 2010. A loan of $126,000 was approved with settlement taking place on the 17th September 2010.
42)The accused had requested seventeen disposal cheques be made out to different names for various denominations. It was the Prosecution case that this was done to minimize the risk of detection. A conveyancer from a legal services company attended the settlement on behalf of the accused and received the settlement cheques. They were collected by courier and delivered to an address in Essendon.
43)The accused then collected the cheques and mailed them to ING where they were deposited into false bank accounts in fictitious names which he had opened to launder the money. Once the cheques had cleared the money was withdrawn at different automatic teller machines around Melbourne until there were insufficient funds left.
44)The accused obtained $126,000 from the CBA which has not been recovered. No payment had been made on the James loan.
45)The Title at the Lockington property was changed from DK to Martin James of an address in Lockington.
46)DK has engaged solicitors and is currently attempting to regain the Title to his property. Of course, Martin James does not exist, but the bank were defrauded into lending money as against the property without the true vendor’s knowledge.
Charge 10: Obtain financial advantage by deception — Niddrie newsagency $353.76
47)At approximately 2.58 pm, on the 30th September 2010 the accused contacted the classified section of the Herald Sun newspaper purporting to be Mark Harvey and placed an advertisement in the finance section advertising 24-hour approval for property with Mark on a mobile number.
48)At approximately 3.50 pm, the same day the accused contacted the classified section and purported to be from the Niddrie newsagency. He completed the advertisement and an invoice was subsequently forwarded to the Niddrie newsagency for $353.76. No payment has been made for the advertisement.
49)The advertisement ran in the finance section of the Herald Sun newspaper between the 1st October 2010 and 7th October 2010. The outstanding $353.76 has not been paid.
Charge 11: Obtain financial advantage by deception — AMP $360,000
50)On the 15th August 2010 KC observed the re-financing advertisement in the Herald Sun newspaper and contacted the accused. He wanted to re-finance a property he owned with his mother, IC, in Kilsyth in order to borrow $60,000.
51)The accused had regular phone contact with KC and mailed a re-financing document to him at Kilsyth via Express Post. KC signed the document and returned it via Express Post mail to an address in Essendon. The accused then collected the documents.
52)On the 8th September 2010 the accused emailed DD purporting to be John Scenna of an address in Essendon, requesting finance for an urgent property settlement regarding property he had purchased in Roxburgh Park.
53)The accused forwarded falsified documents to support the home loan application. These included a photocopy of a drivers licence, birth certificate, company payslips, a CUA statement and a PAYG summary. As a result DD submitted a home loan application to AMP for $336,000 on the 18th September 2010. The loan was approved with settlement taking place on the 30th September 2010.
54)The accused had requested eleven disposal cheques be made out to different names for various denominations. A conveyancer from a legal services company attended the settlement on behalf on the accused and received the settlement cheques. They were collected by courier and delivered to a letterbox in Essendon.
55)The accused collected the cheques. One cheque was issued in the name of AZ for $60,327 and forwarded to her at her address in Roxburgh Park, by courier. One cheque was issued in the name of DK for $60,000 and forwarded to him at an address in Lalor by courier. (refer to charge 9). One cheque was issued in the name of KC for $15,350 and forwarded to him in Kilsyth by mail.
56)The remaining cheques were forwarded by mail to ING where they were deposited into false bank accounts the accused had opened to launder the money. Once these cheques had cleared the money was withdrawn at different automatic teller machines around Melbourne until there were insufficient funds lefts.
57)The accused obtained $360,000 from AMP which has not been recovered. No payment had been made on the Scenna loan.
58)The Title at the property in Kilsyth, was changed from KC and IC to John Scenna of an address in Essendon. KC and IC have engaged solicitors and are currently attempting to regain the Title to their property.
59)On the 17th August 2010 the accused opened an account in a company name with a courier company. The accused used the courier service a number of times regarding sending and collecting documents, settlement files and bank cheques.
Charge 12 Attempt to obtain financial advantage by deception - AMP $520,000
60)In October 2010 DM responded to one of the advertisements for re-financing placed in the Herald Sun newspaper by the accused and wanted to re-finance property he owned in Berwick. The accused had regular phone and email contact with DM regarding the re-financing.
61)Around the 7th October 2010 the accused contacted DD purporting to be Justin Mandy of Glenroy, requesting finance for a property settlement regarding property he had purchased in Berwick.
62)The accused forwarded falsified documents to support the home loan application. These included a photocopy of a drivers licence and birth certificate purportedly certified by a Certified Practising Accountant, two company payslips, a PAYG summary and contract of sale. He further provided a VTCU statement. As a result DD submitted a home loan application to AMP for $520,000 on the 8th October 2010. The loan was initially approved subject to valuation and later declined as suspected fraud.
Charge 13: Attempt to obtain financial advantage by deception - AMP $130,000,
63)In October 2010 CB observed the re-financing advertisement in the Herald Sun newspaper and contacted the accused regarding re-financing vacant land he owned in Endeavour Hills.
64)The accused had regular contact with CB and forwarded a document to him in Endeavour Hills regarding the home loan.
65)A short time later the accused contacted DD purporting to be Alan Turner of Glenroy, requesting finance for an urgent property settlement for land he had purchased in Endeavour Hills.
66)The accused forwarded falsified documents to support to the home loan application. DD commenced an application for $130,000 but did not lodge it as he suspected it to be fraudulent. The accused attempted to obtain $130,000 from AMP.
Charge 14: Attempt to obtain financial advantage by deception - ME Bank $264,000
67)In October 2010 AS responded to one of the advertisements for re-financing placed in the Herald Sun newspaper by the accused and wanted to re-finance a property he owned in Cranbourne. The accused had regular phone contact with AS regarding the re-financing.
68)On the 14th October 2010 the accused lodged a home loan application on line with ME Bank for a loan $264,000 to purchase the property in Cranbourne. The accused lodged the application in the name of TB of Glenroy. TB is the name of AS's mother.
69)The accused forwarded falsified documents to support the home loan application. These included a photocopy of a birth certificate purportedly certified by a CPA, company payslip, PAYG summary, VTCU statement, AGL account and Telstra Super account. The loan was processed by ME Bank and identified as fraud and declined. The accused attempted to obtain $264,000 from ME Bank.
Charge 15: Attempt to obtain financial advantage by deception - ME Bank $136,000
70)On the 18th October 2010 the accused lodged a home loan application on line with ME Bank for a loan of $136,000 to purchase property at 2/38 John Hunter Drive, Cranbourne. The accused lodged the application in the name of John Mitchell of an address in Glenroy.
71)The accused forwarded falsified documents to support the home loan application as John Mitchell. These included photocopies of a birth certificate purportedly certified, a Yarra Valley Water bill, a company payslip, a CUA statement and a Telstra Super statement. The loan was processed by ME Bank and identified as fraud and declined.
Charge 16: Attempt to obtain financial advantage by deception - CBA $496,000
72)In early November 2010 the accused contacted AF (refer paragraph 40) purporting to be Justin Mandy of Glenroy, requesting finance for a property settlement regarding property he had purchased in Berwick.
73)The accused forwarded falsified documents to support the home loan application as Justin Mandy. These included a company payslip, a photocopy of a driver’s licence and birth certificate purportedly certified, a PAYG summary, a CUA statement and an AGL invoice. As a result AF submitted a home loan application to the CBA for $496,000 on the 5th November 2010. The loan was processed by the CBA and conditionally approved and later declined as suspected of fraud.
Charge 17 Obtain financial advantage by deception - CBA $136,000
74)In September 2010 JS responded to one of the advertisements for re-financing placed in the Herald Sun newspaper by the accused and wanted to re-finance a property he owned in Colac. The accused had regular phone contact with JS regarding the re-financing.
75)In early October 2010 the accused contacted AF purporting to be Michael Fletcher of an address in Glenroy, requesting finance for a property settlement regarding property he had purchased in Colac.
76)The accused forwarded falsified documents to support the home loan application: a photocopy of a driver’s licence and birth certificate purportedly certified by a CPA, 2 company payslips and a VTCU statement. As a result AF submitted a home loan application to CBA for $136,000 on the 11th October 2010.
77)The accused was in regular contact with AF and informed him the land to be purchased had changed from one in Colac to one in Endeavour Hills, for the same purchase and loan price. On the 4th November 2010 an amended application with the Endeavour Hills address was submitted to the CBA. The loan was approved with settlement taking place on the 31st December 2010.
78)The CBA had been monitoring the application suspecting it of being a fraud and a communication breakdown allowed the settlement to occur with the accused obtaining the bank cheques after settlement.
79)The accused had requested seven disposal cheques be made to out to different names for various denominations. A conveyancer from a legal services company attended the settlement on behalf of the accused and received the settlement cheques. They were collected by courier and delivered to an address in Glenroy.
80)The accused then collected the cheques and mailed them to a number of credit unions in Victoria, New South Wales, and Queensland, where they were deposited into false bank accounts which the accused had opened to launder the money. CBA investigators, who allowed the false loan to continue in an attempt to detect the accused, became aware of the settlement on the 4th January 2010 and the cheques were cancelled prior to the funds clearing. The CBA suffered no financial loss and the Title to the property did not change.
81)The accused obtained $136,000 from the CBA but the money was recovered before it was deposited into accounts which he could access.
82)The accused attempted to open a number of false savings accounts with credit unions in Victoria, New South Wales, Queensland, South Australia, and Western Australia with the majority being unsuccessful. Investigators allege these accounts would have been used to launder money obtained from the mortgage frauds.
83)The accused was aware the cheques from the settlement had been cancelled and ceased offending for a period of over six months until late June 2011.
84)The legal services company attended at a total of four settlements for the accused.
85)The accused had opened a second account in another company name with the courier company. The account was only used on the 31st December 2010.
Charge 18: Obtain financial advantage by deception — Lygon St newsagency $1,651.32
86)At approximately 12.21 pm on the 23rd June 2011 the accused contacted the classified section of the Herald Sun newspaper purporting to be Jessica Walsh and placed two advertisements: one for home loans and the other for personal unsecured loans. A contact phone number was provided for both advertisements. This phone number appeared in the advertisements.
87)At approximately 12.49 pm on the same day the accused contacted the classified section purporting to be Fabio from the Lygon newsagency in East Brunswick, and completed the advertisements. An invoice was subsequently forwarded to the Lygon newsagency for $2,032.64.
88)The advertisements ran in the Herald Sun newspaper for seven consecutive days from the 24th June 2011 to the 30th June 2011.
89)As a result of the advertisements the accused received a number of calls from persons wishing to re-finance their property and obtain personal loans.
90)On the 24th June 2011 the accused created an account online with SAI Global, a licensed Land data broker which allows access to Landstat (Victorian Titles Office) products and information via its website, in a nominated company name. The accused used the account many times to search for and obtain company details and property Title extracts. This allowed access to registered mortgagees on the title. The accused used a Compaq laptop computer and/or a Lexar USB thumbnail drive to store scanned copies of the documentation gathered from SAI Global.
Charge 19 Attempt to obtain financial advantage by deception - AMP $350,000
91)In late June 2011 FS responded to the advertisement for home loans placed in the Herald Sun newspaper by the accused and wanted to re-finance property he owned in Ferntree Gully. The accused had regular phone contact with FS regarding the re-financing.
92)On the 4th July 2011 the accused lodged a home loan application on line with AMP for a loan of $360,000 to purchase property in Ferntree Gully. The application was lodged in the name of David Shawlin of an address in Brunswick.
93)The accused forwarded falsified documents to support the home loan application as David Shawlin. These included photocopies of a driver’s licence and birth certificate purportedly certified, company payslips, PAYG summary and a contract of sale, The loan application was identified as fraud by AMP and upon request from investigators the loan was progressed as normal. The loan was conditionally approved and dropped to $297,000 after the property had been valued.
94)The loan contracts were forwarded to the accused by Express Post on Wednesday the 27th July 2011 when, after being delivered to a letter box at an address in Brunswick, the accused collected them. This pick-up was observed by police. The documents were signed by the accused and returned via mail arriving at a mortgage services company on Friday 29 July 2011.
95)The loan did not progress to settlement as the accused was having difficulty with the out-going mortgagee.
Charge 20 Attempt to obtain financial advantage by deception — CBA $440,000
96)In late June 2011 PK responded to the advertisement for home loans placed in the Herald Sun newspaper by the accused and wanted to re-finance property he owned with his wife FK in Mirboo North. The accused had regular phone contact with PK regarding the re-financing and requested PK attend at a post office to have his identification verified to assist with the process.
97)The accused mailed an ING identification form to PK who upon receiving the document attended at his local post office and had the document witnessed and sent off. The accused then opened an ING deposit account with PK's details by ringing ING and having the mailing address changed to an address in Brunswick.
98)On the 28th June 2011 the accused contacted a mortgage broker purporting to be Jason Theodore of Brunswick, requesting finance for a property he had purchased in Mirboo North.
99)The accused forwarded falsified documents to support the home loan application. These included photocopies of a birth certificate and licence, company payslips from, PAYG summary and CUA bank statement. As a result the mortgage broker submitted a home loan application to CBA for $440,000 on the 4th July 2011.
100)The loan was conditionally approved subject to valuation and subsequently declined due to an identified discrepancy in the CUA statement provided by the accused. He had incorrectly added an amount when falsifying the document. Contact was soon lost.
Charge 21: Attempt to obtain financial advantage by deception — Westpac Bank $656,000
101)In late June 2011 CK responded to the advertisement for home loans placed in the Herald Sun newspaper by the accused and wanted to re-finance property he owned in Doreen. The accused had regular phone contact with CK regarding the re-financing; CK passed on to the accused his private details including driver licence number.
102)On the 13th July 2011 the accused contacted a mortgage broker purporting to be Michael Charles of Brunswick, requesting finance for a property he had purchased in Doreen.
103)The accused forwarded falsified documents to support the home loan application as Michael Charles. These included copies of a birth certificate and driver’s licence purportedly certified, company payslips, a CUA statement and a contract of sale. As a result the mortgage broker submitted a home loan application to Westpac Bank for $656,000 on the 15th July 2011. The loan was conditionally approved subject to valuation. The property was valued and as a result the loan amount was amended to $628,000 subject to satisfactory identification of Charles which did not take place.
104)The accused also attempted to open savings accounts in CK's name with ING and Suncorp using his personal details with a mailing address in Brunswick.
Charge 22 Obtain Financial Advantage by deception — Westpac Bank $162,000.00 (controlled settlement with police involvement – day of arrest)
105)In late June 2011 KT responded to the advertisement for home loans placed in the Herald Sun newspaper by the accused and wanted to re-finance property her mother owned in Paynesville. KT has power of attorney over her mother, who was extremely ill. The accused had regular phone contact with KT regarding the re-financing and requested that she forward copies of her mother's driver licence, pension card, rates notice and mortgage documents. KT forwarded copies of the requested documents by Express Post to an address in Brunswick.
106)On the 29th June 2011 the accused contacted a mortgage broker purporting to be David Chawlin of Brunswick, requesting finance for a property he had purchased in Paynesville.
107)The accused forwarded falsified documents to support the home loan application. These included copies of a birth certificate and driver’s licence purportedly certified, company payslips, PAYG summary and a CUA statement. As a result the mortgage broker submitted a home loan application to RAMS (Westpac Bank) for $162,000 on the 5th July 2011. The loan was approved with settlement taking place on Tuesday the 9th August 2011.
108)The accused had requested ten disposal cheques be made to out to different names for various denominations including. A law clerk from a legal services company attended the settlement on behalf on the accused and received the settlement cheques. She had commenced following instructions to fill in deposit slips to deposit the cheques into accounts nominated by the accused when she was spoken to by investigators. The cheques were handed to investigators and not banked.
Charge 23: Attempt to obtain financial advantage by deception — AMP $520,000
109)In late July 2011 NA responded to the advertisement for home loans placed in the Herald Sun newspaper by the accused and wanted to re-finance property he owned in Wheelers Hill. NA provided his private details to the accused who said he would speak to a number of lenders.
110)On the 4th August 2011 the accused lodged a home loan application on line with AMP for a loan of $520,000 to purchase the property in Wheelers Hills. The application was lodged in the name of Jason Theodore of Brunswick.
111)The accused forwarded falsified documents to support the home loan application as Jason Theodore. These included copies of a birth certificate and driver’s licence purportedly certified by a solicitor, company payslips, PAYG summary, contract of sale and VTCU statement. The loan application was identified as fraud by AMP and declined.[1]
[1]DPP v Werden (Unreported, County Court of Victoria, Judge Mason, 22 October 2013 (date of conviction), 20 December 2013 (date of sentence)), Appendix 11-20.
It can be seen that the essential elements of the charges, other than the identity of the offender, could be established by evidence of documents and telephone communications. The defence conceded that the relevant deceptions had occurred and that they were undertaken to obtain financial advantage. It was not in issue that the same person had committed all the offences. The sole question for the jury was whether the applicant was the offender. As the judge put it to the jury:
The central issue in this trial is the identity of the person who obtained mortgage facilities from the various financial institutions and who placed the advertisement to obtain the advantage from the Herald Sun newspaper.
At the time of his arrest, the applicant had in his possession, amongst other things, an AMP diary with entries in his own handwriting, a Compaq computer, a Lexar memory stick and three mobile phones.
The diary contained detailed notes of information relating to the deceptions, recording names, phone numbers and other incidental details relating to the 2011 deceptions. In turn, the laptop and USB contained similar information and copy documents used in the deceptions and the three mobile phones had numbers utilised for the purpose of carrying out the deceptions. Material aspects of the 2011 transactions directly coincided with aspects of the 2010 transactions. For example, the CUA statement used in support of mortgage applications in the 2011 transactions which provided the basis for Charges 19-22 was also used in the 2010 transactions which provided the basis for Charges 6, 9, 11, 15 and 16. The driver’s licence photo used in the mortgage applications in the 2011 transactions which provided the basis for Charges 20 and 23 was also used in various 2010 transactions, including those which provided the basis for Charges 11 and 17. A birth certificate used in support of mortgage applications in the 2011 transactions which provided the basis for Charges 19 and 20 was used in various 2010 transactions, including that which provided the basis for Charge 12. There were a series of similar examples. Further, the diary recorded sufficient detail to make clear that the original maker of the notes contained in the diary was involved with both sets of transactions.
In addition, surveillance evidence showed the applicant at 6/214 Dawson Street, Brunswick, and 393A Brunswick Road, Brunswick, picking up mail from letterboxes with which he had no apparent connection. The surveillance evidence also showed the applicant posting envelopes after collecting mail and sitting in his car when telephone records indicated calls were made relating to the alleged offences on a mobile phone.
The applicant gave evidence at his trial and sought to explain away the circumstantial case against him in large part by reference to his dealings with a man named Mark, who according to the applicant, was a finance broker from New South Wales.
The applicant said that he first encountered Mark through his commission based employment at an advertising business upon receiving a phone call from Mark in late June or early July 2011 seeking advertising for his finance broking business. A day or two after the initial phone call, the applicant arranged to meet Mark at a local Red Rooster restaurant in order to present a range of advertising packages for Mark’s consideration. During the course of the meeting Mark asked the applicant about himself and the applicant told Mark that he used to be a solicitor and sales was a new thing for him. Mark spoke about his finance broking business and how it had done very well in Sydney and that he was now in the process of setting up in Melbourne. He told the applicant that he was looking for somebody to manage the business in Melbourne and offered him the job with a salary of $120,000. The applicant told Mark that he would consider it in a few months but he could not leave his present employment at that time as his team depended on him.
A few days later Mark telephoned the applicant again at his office and they met again. In the course of these two encounters, Mark advised that he was still considering the advertising package but was awaiting confirmation from someone else in the business. He asked again about the job offer and the applicant reiterated his position. At this point Mark said that he was impressed by the applicant’s loyalty to his current employer and that he wanted the applicant to work for him for five hours per week in order to be trained up for a role in Mark’s business, which in two or three months, he could have if he wanted it. The commitment was presented as ‘a little bit of running around’ and included picking up mail from two addresses in Brunswick, as Mark was shifting offices from Brunswick to the city.
The applicant gave evidence that he accepted because ‘at the time [he] didn’t think [he] had much to lose’. His employment was in Parkville which was not far from Brunswick where he saw a lot of customers and he could just pick up the mail when he was in the area, get trained up in mortgage work and see if he liked it.
The applicant said that he started collecting Mark’s mail from the two Brunswick addresses (6/214 Dawson Street and 393A Brunswick Road) around 1 July 2011.
In mid-July 2011, Mark gave the applicant a mobile phone which he coincidentally returned to Mark when they met on 9 August 2011 just before he was arrested.
Two or three weeks prior to the applicant’s arrest on 9 August 2011, Mark told him that he was going away and showed him how to use three other mobile phones, asked him if he would check messages on them and also told him he may be required to access a laptop and ‘send stuff.’ Later that night Mark said he wasn’t going away after all.
On 2 and 4 August 2011, the applicant waited to meet Mark at the Direct Factory Outlets car park in Essendon. On both occasions Mark did not turn up and gave an excuse.
On 9 August 2011, Mark was supposed to meet the applicant in the city but again did not show up. Mark was waiting for him when he returned to the office, told him that he was going away for three days and gave the applicant, amongst other things, three mobile phones, a laptop, and a USB memory stick. These items were found in the applicant’s possession upon his arrest later that day.
In total, the applicant claimed to have spoken to Mark over the phone twenty times and to have met him in person seven or eight times. He said that he only got ‘a little bit suspicious’ about why he wasn’t showing up on the third occasion that Mark stood him up on 9 August 2011.
The applicant gave evidence that the information in his AMP diary relating to the deceptions, namely details of clients’ names, telephone numbers and other matters relating to property transactions was written down by him as either copied from Mark’s diaries or as told to him over the phone by Mark by way of updates and explanations. The applicant said he was using the diary to record what Mark was showing him about how mortgages worked.
The applicant gave evidence that at the time he met Mark and the latter told him he was a finance broker moving his business from Sydney to Melbourne he believed Mark and had no cause to think he was involved in fraudulent activity. Rather, the applicant said that he found Mark to be ‘very charming and very genuine.’
In final address counsel for the applicant submitted that it was reasonably possible that, just as Mark had been able to dupe other people, so he was able to dupe the applicant.
On the other hand, the prosecutor submitted in final address that the applicant’s story about Mark was a fictitious response to the incriminating circumstantial evidence found when he was arrested on 9 August 2011. He further submitted that the story was so improbable that it should be rejected outright.
The prosecutor highlighted the following aspects of the circumstantial case. When arrested, the applicant had in his possession:
·three Motorola mobile phones which had been used through 2011 to commit the offences charged relating to that period;
·a laptop computer containing details of every 2011 transaction forming the subject matter of a charge including copy documents and related title searches;
·a USB in the centre console of his car with images of the false documents utilised in the 2011 transactions including false identification documents;
·letters from various clients seeking help in making applications for loans;
·most significantly, the applicant’s AMP diary which contained apparently contemporaneous notes in his own handwriting of the transactions involved in each of the 2011 offences.
The prosecutor then turned to the probabilities of elements of the applicant’s account of his relationship with Mark:
·was it likely that a successful finance broker would offer the applicant a $120,000 job at a Red Rooster café?
·was it likely the applicant would not know Mark’s surname or what business he was involved in, but do what he was requested to do by Mark?
·was it likely the applicant would pick up Mark’s mail for him without payment and spend extended time waiting in Brunswick for delivery of the mail to letterboxes? (In cross-examination the prosecutor had asked why the mail was not simply re-directed when Mark left the addresses.)
·how was it the applicant did not know more about the nature of Mark’s shifting premises which was the essential cause for the pick-up arrangement?
·how was it that, having spoken to Mark some 20 or so times and met him seven or eight times, the applicant knew so little about Mark?
·how was it that the applicant needed to learn about conveyancing and loan broking when he had qualified and practised as a solicitor?
·how likely was it that the applicant would do what he did in order to learn about the business and, in particular, learn by being told the details of financial transactions over the telephone?
·why would the applicant write down the names of loan brokers in his diary if he was not involved in the actual transactions?
·why would the applicant write down the details of the placing of the advertisement in the Herald Sun if he did not do it?
·why did the applicant have the subscription details for the three intercepted phones written in his diary?
In addition, the Crown pointed to the evidence of the applicant picking up mail from two letterboxes in Brunswick. The prosecutor highlighted the surveillance evidence which showed the applicant collecting loan documentation on 27 July 2011 which was returned bearing the same date, having been completed. The envelope containing the returned documents had no fingerprints on it.
There was also video footage showing the way the applicant spent time waiting for postal deliveries and collected mail immediately after they occurred.
Lastly, there were recordings of a series of detailed telephone conversations which, despite the use of voices which the prosecution maintained were disguised, might also be regarded as implicating the applicant.
There was considerable force in these submissions. The Crown case was on its face overwhelming and the applicant’s account of his dealings with Mark improbable. There was no objective evidence Mark existed.
It remained theoretically possible that the jury might have doubts as to the prosecution case as a result of the applicant’s evidence but if they did not accept that the applicant’s account was possibly correct:
(a) the overwhelming effect of the circumstantial evidence was uncontradicted; and
(b) the untruthfulness of the applicant’s account tended to support the Crown case that inferences should be drawn beyond reasonable doubt as to his dishonest involvement in the deceptions.
It is plain that ultimately the jury rejected the applicant’s explanations relating to the circumstantial evidence as reasonably credible.
The proposed grounds of appeal range over a wide variety of issues. Their resolution is relatively straightforward save with respect to grounds 1 and 8. These grounds raise issues of fresh evidence and the competence of counsel with respect to the failure to call that evidence. It is convenient to deal with the other grounds before turning to grounds 1 and 8.
Ground 2 — The learned trial judge erred in permitting the prosecution to lead evidence to the effect that when the applicant posted mail on the 4th of August 2011, he wore gloves, despite the fact that this was an uncharged act and there was no evidence of anything fraudulent being posted by the applicant on this date thereby causing a miscarriage of justice to occur.
Evidence showing the applicant posting mail in Brunswick on 4 August 2011 whilst wearing gloves was admitted despite the fact it could not be established that the mail contained fraudulent material. The evidence was admitted as part of the circumstantial case as to the applicant’s modus operandi.
It was complemented by the finding of rubber gloves in the possession of the applicant at the time of his arrest and at his home when searched.
The applicant relied upon the absence of fingerprints upon mail sent for the purposes of perpetrating deception as demonstrating an aspect of the weakness of the Crown case. He also gave evidence explaining his habitual use of rubber gloves for various purposes relating to cleanliness and as to his use of gloves on 4 August 2011 in his car after spilling a can of tuna.
The Crown relied on aspects of disguise and concealment as permeating the applicant’s overall modus operandi.
More specifically, the evidence of the use of gloves for the purpose of posting an envelope on 4 August 2011 was capable of being regarded as helping to explain why there were no fingerprints found upon documents utilised for the purpose of deception and analysed by investigators. As such, it was relevant and admissible. Moreover, in the context of the circumstantial case as a whole, the evidence was entirely peripheral. I would not grant leave to appeal with respect to this ground.
Ground 3 — A miscarriage of justice arose from the prosecutor’s cross-examination as to the applicant’s failure to take the oath as opposed to an affirmation and in any event was offensive in causing unfair prejudice to the applicant.
The applicant was cross-examined in relation to his professed religious beliefs. He was asked why, given his beliefs, he had not given evidence on oath. The applicant is correct to submit that such cross-examination cannot suggest evidence by way of affirmation is inferior to evidence on oath.[2] Moreover, different religious beliefs concerning the making of oaths must be respected. Nevertheless, the questions asked were on their face legitimate cross-examination as to credit based on aspects of the circumstantial case which featured aspects of his religiosity. Further, they were not the subject of objection.
[2]Evidence Act 2008, s 23. For the history of previous provisions see R v VN (2006) 15 VR 113, 138-140.
The applicant gave a specific reason for not swearing an oath. He referred to the relatively well-known passages at Matthew Chapter 5, verses 34-37. He explained why taking the affirmation was not merely consistent with, but required by, his religious beliefs.
The evidence was for the jury to evaluate, but it is difficult to see that this aspect of the cross-examination went anywhere. The trial judge gave a conventional direction to the jury that it was important to remember that the evidence in the trial was constituted by the answers of the witnesses, not the questions. No direction was sought by the defence as to the consequences of the cross-examination. I do not accept that it is reasonably arguable that it caused unfair prejudice to the applicant.
There is nothing in this point.
Ground 4 — A miscarriage of justice arose from the learned trial judge’s interference during the prosecutor’s cross-examination of the applicant, the learned trial judge’s own cross-examination of the applicant and the trial judge’s interference and assistance to the Crown case and police investigation.
The applicant first complains about questions asked by the trial judge during cross-examination of the applicant concerning subjects that the applicant may have undertaken at university relating to the law applicable to the buying and selling of property and the nature of securities and creditor’s rights including awareness of the nature of mortgages. It was unnecessary and undesirable for his Honour to intervene in this way and the intervention ultimately came close to cross-examination by the judge himself:
But the basis of a mortgage to raise finance – would you accept this as one of the most basic forms of finance? - - - Yes. Most definitely.
But you didn’t touch on that in either of your degrees? - - - I don’t recall. As a solicitor, I recall people trying to get loans and that. Most definitely. I know how security works and - - -
Well, how did you learn how to advise them? - - - I think as a solicitor most of the training that – everything I learnt was on the job. The subjects really touched on very little, and I often tell people that.
Nevertheless, these questions were not materially prejudicial to the applicant. He gave consistent answers and, in a sense, the questions went to a non-issue. The applicant did not disclaim having an understanding of mortgages at the time of the alleged offending. By that time, he had completed articles in a suburban solicitor’s practice, worked in several suburban solicitors’ practices and had been in practice as a sole practitioner. There is nothing in this point.
The applicant further complains about questions asked by the trial judge concerning his evidence that Mark told him that he lived in the Brunswick area and had shifted into the city. The questions asked did no more than seek to clarify the applicant’s evidence. Again, there is nothing in this point.
The applicant next submits that questions asked by the trial judge at the conclusion of the cross-examination of the applicant amounted to further cross-examination and resulted in a miscarriage of justice. The questions explored, and in effect highlighted, an interconnected set of aspects of the applicant’s evidence.
Just before you re-examine, Mr Backwell, just so I’ve got this right, did you ever ask Mark what his surname was? - - - I – I – I don’t think so. I saw documents with a surname
- - -
No. Did you ever ask him? - - - No, I don’t think so.
So you knew this person was Mark - - - ? - - - Yes.
He just phoned out the blue? - - -I just - - -
He just phoned you out of the blue? - - - He phoned – he phoned Community Connect, yes.
Okay. Did you ask what his business was? - - - Yes. He was a finance broker. We - - -
What was the name of his business, though? - - - I don’t know.
Did you ever make any inquiries about the nature of his suggested business in New South Wales? - - - No.
Did you ever ask him, ‘Well,’ after you first met at Red Rooster, ‘have you got a place where you’re setting up your business now in Melbourne’? - - - He told me the city.
And did you go there? - - - Never.
But you met him at Red Rooster? - - - Yes.
On other occasions? - - - Yes.
And did you think there was anything strange about that? - - - No.
On other occasions, did you meet him, or arrange to meet him, outside a DFO outlet? - - - Yes. I met him at DFO.
Yes? - - - At – at – prior to the 2nd and the 4th.
But after the Red Rooster? - - - Yes.
And then did you meet – did you think there was anything suspicious then about the fact that you didn’t know his surname – just a minute – you didn’t know his business. You meet him at Red Rooster. He then arranges to meet you in a car outside a DFO outlet in a car park - - - ? - - - The whole purpose of - - -
Well, no, just answer that question. Were you suspicious at that stage? - - - I wasn’t suspicious.
No? - - - And the whole purpose of DFO was that that was on the way home from my work to – to my home.
All right? - - - So he was making it easier for me.
Yes. And the same, the next time you met him or arranged to meet him, and although it was convenient to you, of course he didn’t turn up on that first occasion outside Scully’s? - - - No. That’s the last occasion to ---
All right. Scully’s was one occasion. I think Dan Murphy’s was the other? - - - That’s right.
Did he turn up on that occasion? - - - No.
Did that worry you? - - - It – it didn’t. Look, as I said, I worked with a fellow called Spirskalamis. This guy, he - he won’t – he won’t come for three hours. You know, I’ve got – I know people that are like that.
And what did he tell you about the people who – well, did he tell you anything about these letter boxes that you were collecting mail from? - - - He wants ---
You mentioned something - I just didn’t quite get it – about --- ? - - - He asked me to pick up the mail, yes, from those ---
Yes. But did you ask him who was living there? He – he was living at one place, and I – I understood his brother-in-law or partner or some – someone ---
Which place was he living at? - - - The – Brunswick Road.
And he asked you to pick letters up from there, even though he was living there? - - - No. He – he had shifted. He had shifted from Brunswick – from the – at – from the time he made that first call, he had shifted.
And what about the second one – second address? - - - There was no one there. That was the – his partner or his brother-in-law.
But did he explain to you why there was no one living there? - - - They had shifted.
They had shifted, as well? - - - The – him and his partner.
Alright. Thanks. Mr Backwell.
The relevant principles upon which the applicant seeks to rely were stated by Crockett and Teague JJ in R v Boykovski and Atanasovski:[3]
Much of the judge’s questioning bore the character of an investigative interrogation. That form of inquiry is, or should be, beyond the realm of judicial activity (or for that matter of jury participation - compare Lo Presti[4]) as was emphasised by Barwick CJ in Ratten.[5] The learned Chief Justice there said:
As Smith J rightly said in expressing the reasons of the Full Court in this case, ‘Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence’. It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law.
[3](1991) 58 A Crim R 436, 444 (citations in original).
[4](1991) 58 A Crim R 304.
[5](1974) 131 CLR 510, 517.
In R v Esposito,[6] Wood CJ at CL put it this way:
The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross- examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.
As Hunt CJ at CL said in R v E:
… it is worth repeating what has been said by this Court on many other occasions. The task of restoring the credit of a Crown witness or of destroying the credit of the accused or witness should always be left by the judge to the Crown Prosecutor.[7]
[6](1998) 45 NSWLR 442, 472 (citation and emphasis in original).
[7](1995) 89 A Crim R 325, 331.
In the present case, the applicant gave a complex account of his dealings with Mark which in effect explained away a whole series of interrelated circumstantial matters. It was integral to this account that at no stage of an extended set of sequential transactions did he have suspicions as to the legitimacy of Mark’s business and the role he was asked to play.
The probability of this state of mind was attacked in cross-examination by the prosecutor. The applicant’s account of events was complicated and the cross-examination was to some extent staccato and not surprisingly focussed on particularly improbable elements of the evidence as a whole. It was not designed to produce an entirely coherent account but rather it was designed in part to seek to establish inconsistency and incoherence.
Looked at as a whole, his Honour’s questions are fairly characterised as questions designed to clear up matters that might be regarded as uncertain and equivocal. As was conceded on appeal, insofar as they were interrogative, they all went to matters which were already the subject of some evidence. The questions in effect put the applicant’s account of what he was told and understood about Mark into a connected sequence.
The questions were put before re-examination in order to make clear the thrust of the evidence as it stood after cross-examination. Counsel for the applicant had the opportunity to further clarify aspects of the evidence if he so desired.
Whilst the questions were relatively extended, this was a long trial and the prosecutor’s cross-examination itself had been directed to matters of considerable detail.
In my view, it is not reasonably arguable that the judge’s questions crossed the line into cross-examination and resulted in a miscarriage of justice. They clarified the applicant’s evidence, the credibility of which was in forensic terms critical to his case. They did so at a point in the evidence where the applicant’s counsel could immediately respond to the matters summarised in answers to the judge by asking further questions in re-examination. There was nothing unfair about this. I would refuse leave to appeal on this ground.
Ground 5 — A miscarriage of justice arose as the police informant lied in respect to inserting a ‘transfer of land’ document in a controlled delivery package meant for the applicant’s collection and as a result of further non-disclosure by the Crown and Crown witnesses.
There is nothing in either aspect of this ground.
There is no evidence to support the applicant’s contention that the informant lied or was mistaken about whether the transfer of land document was one of the documents in the controlled delivery package. It was not put to the informant that he lied or was even mistaken about whether or not the transfer of land document was one of those included in the controlled delivery. The applicant’s submission that there was a lie depends essentially upon assertions by him concerning usual practice with respect to conveyancing matters.
Moreover, if the police officer was wrong about what documents were included, it was immaterial to the critical thrust of the evidence.
The relevance of the documents sent in the controlled delivery on 27 July 2011 was that they were delivered to 6/214 Dawson Street, collected by the applicant that day and sent back signed and dated 27 July 2011. The essential point was that the prosecution was able to establish that it was the applicant who collected the documents used for the purpose of deception forming the basis of charge 19 and that they were completed fraudulently shortly thereafter.
The applicant further complains that the police failed to check whether the laptop seized by them had software enabling the use of the applicant’s office or home printers to falsify documentation. It is difficult to see that the absence of evidence as to this issue could be said to be harmful to the applicant’s case. Moreover, on proper analysis this is not in truth an allegation of non-disclosure.
The Crown called other evidence that documents could have been created or modified by manual processes, including cutting and pasting and photocopying. It was not a necessary part of the Crown case that the applicant possessed a computer program in order to produce deceptive documents, although evidence was called with respect to access to printers and a photocopier, both at his home and his workplace. It was the fact the applicant possessed copies of falsified documents and detailed notes of information utilised in them which supported the inference that the applicant produced them. There was no evidence satisfactorily proving precisely how they were manufactured but this did not detract from the essential strength of the Crown case.
The applicant next submits that the Crown was selectively unfair in the tendering of closed circuit television (‘CCTV’) footage relating to charge 9. The CCTV footage which was not tendered formed part of the police brief of evidence and was available to the defence.
There is nothing in this point.
Ground 6 — The verdicts of guilty on Grounds (sic) 1 to 23 are unsafe and unsatisfactory in the sense that it was not open to a properly instructed jury if acting reasonably to find the applicant guilty in view of the following:
(a) ATM pictures cannot be said to be that of applicant;
(b)Impossible for applicant to make phone calls relating to offending given police surveillance evidence;
(c) No voice recognition evidence;
(d) No finger prints of applicant;
(e) No conclusive handwriting evidence;
(f) The applicant’s denials in evidence;
(g)The physical impossibility to carry out the offending in the limited time in which the offending took place.
This ground is not reasonably arguable. The Crown case rested on compelling circumstantial and coincidence evidence. The forensic reality was that either the jury were persuaded that there was a reasonably possible innocent explanation for the applicant’s possession of the incriminating material discovered when he was arrested and his use of letterboxes not his own as shown on the surveillance videos, or they were not.
The applicant’s explanation of the evidence was fanciful. The jury were well entitled to reject it. They rejected it after having a videotape of the applicant’s evidence replayed to them at their request during their deliberations. They already had the transcript of the applicant’s evidence. It may be inferred that the jury reached their decision after a detailed consideration of the applicant’s evidence including his demeanour. Having rejected it, this rejection was something which could give them greater confidence in drawing the inferences plainly available from the circumstantial evidence as a whole.
The specific matters (a), (c), (d) and (e) identified in the proposed ground of appeal do not detract from the force of the Crown case. They hypothesise additional evidence which might have further strengthened the Crown case but was not necessary to it.
Matters (b) and (g) are matters which the applicant’s counsel put to the jury in final address. They involve assertions which the jury were well able to evaluate. Neither of them is persuasive. The contrary view was well open on the evidence.
Ground 7 — In the alternative in the event one ground does not in itself justify the application sought, the applicant relies on the combination of errors, leading to a miscarriage of justice.
This ground does not add to the individual grounds.
Ground 1 — A miscarriage of justice occurred in that scientific fresh evidence in a field not known to the applicant nor his advisors and not moderately in the community was therefore not available at the trial of the applicant and there is a significant possibility or likelihood that the jury acting reasonably would have acquitted the appellant if the fresh evidence had been before it at the trial.
The applicant wishes to adduce photogrammetric evidence relating to the height of a man shown withdrawing moneys from ATMs at a bank in Camberwell on 24 September 2010 and 9 October 2010. The photogrammetric evidence relates in one instance (9 October 2010) to a portion of video which was in another part relied upon by the Crown at the trial. In the other two instances it relates to video not tendered at trial but made available to the defence. This video shows a man involved in collecting moneys from the ATM dressed broadly similarly to a man shown in still shots from 17 and 19 September 2010 at another location in Collingwood which were tendered to the jury.
A distinction is generally drawn between ‘fresh’ evidence that is evidence which was not available or could not have been relied upon at trial by an accused acting with reasonable diligence on the one hand and ‘new’ evidence on the other, that is evidence which could have been called at trial but was not.[8]
[8]R v Nguyenand Tran [1998] 4 VR 394, 400 (Kenny JA, Winneke P and Callaway JA agreeing).
A miscarriage of justice will not be as readily established with respect to the second category as the first.
In Gallagher v The Queen,[9] Gibbs CJ said:
[9](1986) 160 CLR 392 (‘Gallagher’).
The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King,[10] as follows:
A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.
Perhaps no more elaborate statement of the position can usefully be made.[11]
[10](1933) 49 CLR 429, 439.
[11]Gallagher (1986) 160 CLR 392, 395–6 (citation in original).
In Mickelberg v The Queen,[12] Toohey and Gaudron JJ said:
There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be ‘credible’, ‘cogent’, ‘relevant’, ‘plausible’.[13] In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it[14] or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the [accused]’.[15]
[12](1989) 167 CLR 259, 301 (citations in original) (‘Mickelberg’).
[13]See, eg, Gallagher (1986) 160 CLR 392, 395–6, 401-2, 408-9; Craig v The King (1933) 49 CLR 429, 439; Ratten v The Queen (1974) 131 CLR 510, 519-20; Lawless v The Queen (1979) 142 CLR 659, 671, 676-7.
[14]Gallagher (1986) 160 CLR 392, 410 (Brennan J).
[15]Ibid 399 (Gibbs CJ), 402 (Mason and Deane JJ).
In summary, in R v Nguyen Kenny JA said that ordinarily a Court would not be satisfied that a fresh evidence ground was made out unless:
(a)the evidence was not available, or could not with reasonable diligence have become available, at the trial;
(b) the evidence is relevant and otherwise admissible;
(c) the evidence is apparently credible (or at least capable of belief); and
(d)there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial.[16] (If there is any practical difference between a test expressed in terms of ‘a significant possibility’ and a test expressed in terms of ‘a likelihood’, none has thus far been suggested; for it has been said that ‘likelihood’ is no more than ‘a substantial — a ”real and not remote” — chance regardless of whether it is less or more than 50 per cent’.[17]
[16]See Gallagher (1986) 160 CLR 392, 399, 402, 410, 421 and Mickelberg (1989) 167 CLR 259, 273, 288, 301.
[17]R v Nguyenand Tran [1998] 4 VR 394, 400–401 (Kenny JA, Winneke P and Callaway JA agreeing), citing as follows: ’See Boughey v R (1986) 161 CLR 10 at 21, Mickelberg at 301, Cheney v R (1991) 28 FCR 103 at 108 and R v Heffernan (unreported, Court of Criminal Appeal, 20 May 1994)’. See also Miechel v The Queen [2010] VSCA 225; Coleman v The Queen [2011] VSCA 301 (where the Court asked whether there was ‘a substantial chance’ that the fresh evidence would have resulted in the jury acquitting the appellant) and Greensill v The Queen (2012) 37 VR 257, which cited the test as set out in R v Nguyen and Tran.
The applicant seeks to rely on evidence from Dr Albert Kon-Fook Chong from the Department of Geometric Engineering of the Faculty of Civil Engineering and Surveying, University of Southern Queensland, Toowomba. Dr Chong has sought to analyse photographs of the person filmed by CCTV withdrawing money from an ATM at the Camberwell Commonwealth Bank from accounts relevant to disposal of the proceeds of the offending comprised in charge 11. Dr Chong concluded that when the images are properly analysed they demonstrate that the person in the photograph is shorter than the applicant and that it cannot be him.
It may be accepted that the evidence is relevant and would have been admissible at trial. It remains for the applicant in the first instance to demonstrate that the evidence could not, with reasonable diligence, have been called at trial.
The applicant relies on a 1996 authority in which it was held that evidence of a similar kind was fresh evidence in circumstances where the process of analysing the photographs to calculate the height of a person shown in them was unknown to the applicant’s representatives at trial and indeed unknown to the judge who delivered the primary judgment on the appeal.[18]
[18]R v Rozynski [1996] NSWSC 19.
The applicant further relies on an affidavit sworn by counsel who appeared for him at trial which states that, at his first conference with the applicant, counsel was instructed that it was not the applicant in the ATM photos. The applicant pointed to differences in height and build. The applicant raised the issue of facial recognition testing but counsel advised that this was not possible as the face was covered up. Counsel further deposes that he was completely unaware of the ability to have the photographs analysed to determine the height of a person until after the trial had concluded. He had not heard of ‘geometric engineering’ as a field of scientific expertise. He had not read the case of R v Rozynski[19] until it was brought to his attention after the verdict.
[19][1996] NSWSC 19.
It is a long time since photogrammetric evidence of the kind in issue was novel and it has been adduced in a number of armed robbery and other trials in this State for many years.[20]
[20]See, eg R vTheos (1996) VSCA 23.
In turn, a number of decisions of superior courts deal with evidence of this kind and incidentally demonstrate the increasing sophistication of the science which may be involved in its use.[21] The potential availability of evidence of the kind in issue relating to the analysis of stills taken from CCTV footage is readily ascertainable by way of electronic search both directly with respect to its scientific basis and indirectly by reference to reported cases.
[21]See, eg R vBrease [2013] QCA 249; R v Morgan [2000] NSWCCA 7.
I do not accept that the evidence is fresh evidence in the sense that it could not with reasonable diligence have been called at trial. For completeness I add that if the evidence is characterised as ‘new’ evidence it does not have those qualities of demonstrating the applicant’s innocence or raising a necessary doubt as to his guilt which would nevertheless demonstrate that a substantial miscarriage of justice had occurred.
It follows that ground 1 as propounded by the applicant must fail. It is necessary then to turn to ground 8 and in particular the allegation that the failure of ground 1 results from a failure of the applicant’s counsel to act with reasonable competence during the trial.
Ground 8 — In the event that either or all of grounds 1, 2, 3, 4, 5, 6, and 7 are not accepted for reason of the applicant’s Legal Counsel during the trial, failing or omitting to act as reasonable counsel should, then in the alternative to those grounds, there was a miscarriage of justice as a result of counsel’s failures or omissions.
It may be accepted that reasonably competent counsel should have been aware of the possibility of calling photogrammetric evidence at the time the applicant gave instructions prior to the trial that the person shown in the CCTV footage was not himself. Nevertheless, it does not follow from this that the applicant’s defence was not conducted with reasonable competence.
As Gleeson CJ put it in Nudd v R, it is the fairness of the process that is the issue not the wisdom of counsel.[22] Gummow and Hayne JJ elaborated the distinction as follows:
As four members of this Court explained in TKWJ v The Queen,[23] describing trial counsel’s conduct of a trial as ‘incompetent’ (with or without some emphatic term like ‘flagrantly’) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Q). ‘Miscarriage of justice’, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial],[24] of whether there was a material irregularity in the trial,[25] and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.[26]
Pointing to the fact that trial counsel did not take proper instructions from the accused, did not properly understand the statutory provisions under which the accused was charged, or had not read the cases that construed those statutory provisions, would reveal that counsel was incompetent. Showing all three of these errors would reveal very serious incompetence. But an appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused’s counsel. Was what happened, or did not happen, at trial a miscarriage of justice?[27]
[22](2006) 80 ALJR 614, 618 [9].
[23](2002) 212 CLR 124, 134 [31] (Gaudron J), 148 [75], 156 [97] (McHugh J), 157 [101] (Gummow J), 157 [103] (Hayne J).
[24]Ibid 134 [31] (Gaudron J).
[25]Ibid 149-150 [79] (McHugh J).
[26]Ibid 135 [33] (Gaudron J), 149 [79] (McHugh J), 157 [101] (Gummow J), 157 [104] (Hayne J).
[27]Nudd v R (2006) 80 ALJR 614, 622-3 [24]-[25] (citations in original). And see 644 [158] (Callinan and Heydon JJ).
I am not persuaded that it was incompetent to fail to call evidence of the sort now sought to be adduced from Dr Chong for the following reasons. First, no evidence was adduced from trial counsel that he would have called the evidence if he were aware of it. Second, it cannot be inferred that competent counsel would have called such evidence because:
(c) that evidence went to an issue that was peripheral to the case; and
(d) that evidence on proper analysis did no more than raise the reasonable possibility that the man depicted in the video was not the applicant. It did not satisfactorily establish a basis for concluding that the man was not in fact the applicant.
The applicant submits that the Crown case was a circumstantial jigsaw puzzle and that ‘the photos of the offender involved in “the scheme” was a major piece of that evidence in that it goes to the heart of the identification issue because the offender is caught red-handed in respect to clear cut fraudulent offending.’ This submission is misconceived.
At trial the Crown accepted and the judge forcefully directed the jury that the CCTV evidence could not provide a satisfactory basis upon which to positively identify the applicant as the man who withdrew moneys from the ATMs.
It was not necessary for the Crown to satisfy the jury that the applicant was the person shown in the CCTV video evidence. In turn, only part of the CCTV evidence depicting withdrawals from different ATMs was shown to the jury although all of it was made available to the defence.
The alleged offences of obtaining financial advantage were established by the prior payment of moneys into accounts nominated by the person perpetrating the relevant deceptions.
The Crown case as to the identity of the offender depended on identifying the applicant as the person responsible for the deceptions by reason of his possession of the circumstantial material directly recording details of them and his involvement in picking up mail associated with the deceptions from the Brunswick letterboxes.
The photogrammetric evidence did not go either to disproof of the elements of the offence or disproof of the circumstantial core of the Crown case.
This is so despite the fact that in the course of cross-examination the prosecutor put to the applicant that he was the person with a partially concealed face shown in pieces of CCTV footage from 17 and 19 September 2010 at Collingwood. Still photographs including the following were put to the applicant.
[28]
[28]Trial Exhibit AB.
In response, the applicant said ‘look at my nose — very big. Look at the photo. That guy has a boxer’s nose. I am 6 foot tall, I’m 90 kilos. You can see my back in the photos and you can see his back. It’s not even close to me.’
Significantly perhaps, the applicant was not asked in re-examination whether, and did not say that, the person in the photographs was or appeared to be Mark. No circumstantial evidence personal to Mark was ever identified.
In final address the prosecutor invited the jury to compare a black and white version of a photograph of the applicant with still photographs of the person who could be seen in the ATM photos, taken at Collingwood. The prosecutor submitted that the nose of the person shown in the ATM photographs did in fact look like the applicant’s and the jury should reject what the applicant had said as to this.
As part of his charge and after discussion with counsel, his Honour carefully explained the difficulties in ascertaining identity from photographic evidence of this type and ultimately said:
But I give you this strong direction. You can only use this evidence in this way as to the comparison of the similarity of the noses as part — one small part — of the whole of the prosecution case. You cannot conclude, just from such a simple comparison of these photographs, that it was in fact Mr Werden. It would be impossible to do so and you cannot do that and you should not do it.
No objection was taken to this direction.
It seems to me that, despite the reference to the Collingwood photographs in final address, it remained plain that the photographs did not permit the applicant to be identified and that such identification was unnecessary to the Crown case.
It was not necessary for the Crown to prove who made the ultimate withdrawals from ATMs of the moneys obtained by deception. Nor was it contended that the video footage enabled a conclusion to be drawn beyond reasonable doubt that it was the applicant. Conversely, the applicant did not assert that the photographs showed Mark. In these circumstances, the interpretation of the video footage was peripheral to the case.
The applicant submits that the Crown always put its case forward on the basis that the offending was a ‘one man show’ not that the applicant was acting in concert with a person or persons unknown. This is true but the short answer to the point is that the withdrawals from the ATMs did not comprise an element of the offending. The Crown case was simply that the possession of the diary, laptop, USB stick and mobile phones by the person who collected mail from the letterboxes demonstrated the applicant perpetrated the deceptions and, by inference where they were successful, took the benefits of the payments made in accordance with his directions. In turn, evidence as to the identity of the person who withdrew moneys from the ATMs did not bear on the weight of the coincidence evidence. It was not part of what the applicant calls the similar fact evidence upon which the Crown relied to prove its case.
The significance of the fresh evidence falls to be assessed in this context. In turn, some evaluation must be made of its cogency. As the applicant made clear, he relies on Dr Chong’s evidence to establish that the subjects of the photographs analysed are not the applicant. It is proof of this proposition which is in issue. The purpose of the evidence is not to raise a reasonable doubt as to the identity of the subject of the photographs. It was common ground at the trial that the photographs did not themselves permit positive identification of the applicant. In his written submission, the applicant put it this way:
The fresh evidence shows that the offender at the ATM is not me and that a reasonable inference consistent with my innocence should follow because the Crown ran their case upon this very same circumstantial evidence as there simply is no direct evidence of me submitting applications on a computer. I rely upon the findings of Dr Albert Chong in support of the proposition that it is impossible that it was me due to the height difference. One may be able to make oneself taller but to make oneself smaller defies the laws of physics.
Dr Chong described his methodology in a written report tendered in evidence.
3.1 Image Pixel
Each CCTV image has a two-dimensional ‘image’ coordinate reference system which consists of: 1) the x-axis (the length); and 2) the y-axis (the height) and the coordinates are in a ‘pixel’ unit. Each object has a number of distinct points which allows the ‘digitizing’ of these points on the CCTV image. The digitizing process captures the pixel coordinates of these points. This (sic) coordinates are used to calculate the image distances.
3.2 Uncertainty in Point Digitizing
There are random uncertainties in the digitizing. Therefore, it is often necessary to digitize these points a few times and calculate the average coordinates. In this investigation, I digitized each point six times and I calculated the average coordinates and the standard deviation of the measurement. Using the standard deviation of the measurement, the uncertainty in the digitizing was calculated.
Dr Chong then described the measurement process he undertook of two post boxes and a green rubbish bin (‘the boxes’) shown in the photographs and the comparative heights which he determined of persons shown in the photographs. Each of the photographs was taken from a CCTV camera at a Commonwealth Bank branch in Burke Road, Camberwell. The first photograph was in the following form.[29] The subject analysed was the shadowy figure in a black beanie and jacket.
[29]Photograph ‘a’.
Dr Chong’s analysis was as follows:
3.3 Image Measurement and Suspect Height Determination
a) Exhibit no: 1530 on 24/09/10 at 7:04:52
In this exercise, firstly, I digitized a point at the opening of the green rubbish bin (arrow in Appendix B(l). Next, I digitized a point at the bottom of the same green bin (see arrow). This point is directly below the first point along a plumb line (Appendix B(1)). The image coordinates were converted to an image distance (image height) between the two points using a technique known as Pythagoras theorem.
Subsequently, I digitized the image coordinate (pixel) of the point at the top of the head of suspect (Appendix A(a)). Because of the suspect beanie, I assessed the position of the top of the head (see arrow). This was followed by the digitization of a point between the heel of the left foot and the heel of the right foot at a point levelled with the sole of the foot. Then, the coordinates were converted to an image height between the two points using Pythagoras theorem. Once the image height was calculated, I used it to calculate the suspect height using formula (2).[30] I repeated the process six times, thus I could determine the random uncertainty of my digitizing of points on the CCTV image.[31]
[30]Formula 2 was earlier stated to be: Object size = Image distance * Scale of image.
[31]The arrows referred to in the analysis by Dr Chong of each of the relevant photographs were marked on his original report but are not able to be satisfactorily reproduced in this judgment.
The second photograph was from the same date and place. The subject analysed was the same person now next to the yellow post box.[32]
[32]Photograph ‘b’.
Dr Chong concluded as follows.
b) Exhibit no: 1530 on 24/09/10 at 07:06:42
In this exercise, I digitized a point at the top of the yellow Post box. Then, I digitized a point at the bottom of the same Post box (Appendix B(2)). The coordinates were converted to image height between the two points using the Pythagoras theorem. Subsequently, I digitized the image point at the top of the head of suspect (Appendix A(b)). Because of the suspect’s beanie, I estimated the position of the top of the head. This is followed by the digitization of a point between the left foot and the right foot at a point levelled with the sole of the foot. Then, the coordinates were converted to image height between the two points using Pythagoras theorem. Once the image height was calculated, I used it to calculate the suspect height using formula (2). I repeated the process six times, thus I could determine the random uncertainty of my digitizing of points on the CCTV image.
The third photograph was taken from the same camera on 9 October 2010. The subject analysed was the person in a white top and beanie adjacent to the red post box at the rear of the group of persons shown in the mid to foreground of the photograph.[33]
[33]Photograph ‘c’.
Dr Chong concluded as follows:
c) Exhibit no. 1535 on the 09/10/10 at 09:09 Camberwell
In this exercise, I digitized a point at the top of the red Post box. Then, I digitized a point at the bottom of the same Post box at ground level. This point was also directly below the first point (Appendix B(3)). The coordinates were converted to an image height between the two points using the Pythagoras theorem. Subsequently, I digitized the image point at the top of the head of suspect (Appendix A(c)). This is followed by the digitization of a point between the left foot and the right foot at a point levelled with the sole of the foot (see arrow). Then, the coordinates were converted to image height between the two points. Once the image height was calculated, I used it to calculate the suspect height using formula (2). I repeated the process six times, thus I could determine the random uncertainty of my digitizing of points on the CCTV image.
This methodology yielded the following results:
4.0 The results
a) Exhibit no:1530 on 24/09/10 at 7:04:52.
The following are the results obtained for this image.
i) The average measured height of the individual was 1712 mm.
ii) The measurement uncertainty was 30 mm.
b) Exhibit no: 1530 on 24/09/10 at 07:06:42.
The following are the results obtained for this image.
i) The average measured height of the individual was 1741 mm.
ii) The measurement uncertainty was 27 mm.
c) Exhibit no. 1535 on the 09/10/10 at 10:09 Camberwell.
The following are the results obtained for this image.
i) The average measured height of the individual was 1690 mm.
ii) The measurement uncertainty was 16 mm.
5.0 Analysis of the measurement
a) Exhibit no: 1530 on 24/09/10 at 7:04:52.
i) The uncertainty of the measurement was 30 mm. Therefore, the individual’s height was between 1682 mm and 1742 mm.
ii)Mr Werden’s height was 1815 mm (without the footwear). Therefore, the height difference was between 133 mm and 73 mm.
iii)The height difference in percentage of the true height of Mr Werden was 5.6%.
iv)The measurement uncertainty relative to the true height of Mr Werden was 1.6%.
b) Exhibit no: 1530 on 24/09/10 at 07:06:42.
i)The uncertainty of the measurement was 27 mm. Therefore, the individual’s height was between 1714 mm and 1768 mm.
ii)Mr Werden’s height was 1815 mm (without the footwear). Therefore, the height difference was between 101 mm and 47 mm.
iii)The height difference in percentage of the true height of Mr Werden was 4%.
iv)The measurement uncertainty relative to the true height of Mr Werden was 1.5%.
c) Exhibit no. 1535 on the 09110/10 at 09:09 Camberwell.
i)The uncertainty of the measurement was 16 mm. Therefore, the individual’s height was between 1674 mm and 1706 mm.
ii)Mr Werden’s height was 1815 mm (without the footwear). Therefore, the height difference was between 141 mm and 109 mm.
iii)The height difference in percentage of the true height of Mr Werden was 6.9%.
iv)The measurement uncertainty relative to the true height of Mr Werden was less than 1.0%.
Dr Chong’s methodology gave rise a range of height estimates between 1674 millimetres and 1768 millimetres. All the estimates fell below the applicant’s true height of 1815 millimetres (without footwear). Nevertheless, the degree of variation in results itself bespeaks some real inexactitude in the process. The difference between estimates was substantially greater than the difference between the highest estimate and the applicant’s height.
Dr Chong elaborated his report in oral evidence and, in my view, his opinion must be subject to significant qualifications:
(e) it was not informed by adequate data;
(f) each step of his methodology involved exercises in cumulative judgment; and
(g) the photographs themselves demonstrate a series of material uncertainties.
Dr Chong did not obtain survey data demonstrating the height of the red post box, the yellow post box or the green bins. This was despite the fact that his initial oral evidence was that he insisted that these heights be surveyed in order to establish precise comparators for his methodology. In addition, he had no survey data as to the height of the camera, the dimensions and slope of the footpath, or the distance and angle of the boxes from the camera. In his oral evidence Dr Chong also said: ‘Imaging in measurement of digitising is the surveyors, is a common practice. In fact that is the only way to ensure that the result is accurate.’
Dr Chong was supplied with heights of the boxes measured with a tape measure by a builder. The builder has sworn a separate affidavit describing the heights he measured. A photograph contained in Dr Chong’s report appears to indicate the vertical measurements were taken without the benefit of a spirit or laser level or plumb line.
Dr Chong was further unable to obtain access to the camera used to take the video from which the still photographs were selected. The camera had been removed. In consequence, Dr Chong was unable to calibrate the software he used to make allowance for the lens used and the height above ground at which it was located. Hence, there was a potential for lens distortion to affect the methodology adopted although Dr Chong estimated this was ‘very small’.
In essence, Dr Chong interpreted the still photographs with the assistance of the builder’s measurements of the boxes utilising a visual appraisal of pixels to compare the height of the adjacent subject in each photograph. He did not visit the site.
The process Dr Chong adopted required a series of cumulative judgments, amongst other things, as to the following matters:
·the position of the feet of the subject, because the whole comparison depended upon the subject being sufficiently ‘close’ to the comparator object;
·the height of the subject under the beanie in each case, because without such adjustment the height of the subject was at least that of the applicant;
·the height of the subject when the camera was in a position in effect looking down onto the subject’s head;
·the significance of the fact that true vertical measurements of the boxes had not been taken;
·the existence of a slope or otherwise to the footpath; Dr Chong read the photographs as indicating that there was no slope;
·the effect of gait upon the relevant subject’s height;
·the assessment of the pixelated images and the fixing of points within them; and
·the computerised drawing of vanishing points within the photographs utilising software and enabling them to be analysed.
In my view, Dr Chong’s evidence was not materially supportive of a positive conclusion that the subject of the photographs was not the applicant. When the photographs are carefully considered, there are at least the following major uncertainties concerning Dr Chong’s reasoning:
·in the absence of a survey plan, it is not possible to be confident the subject was in each instance sufficiently close to the boxes to allow for a direct visual comparison of height. This uncertainty is compounded both by the fact that the images are not of high resolution and by the lack of evidence as to the camera angle and distance of the camera from the subject and the boxes;
·this difficulty is most simply illustrated by photograph ‘c’ where the subject appears to be entering into the angled shadow beyond the red box and not directly adjacent to it; Dr Chong accepted that the post box was slightly nearer to the camera than the subject; Dr Chong further agreed that he did not know how long the view shown in the photograph was;
·the combination of the effect of slope and gait on posture may have caused the subject in each photograph to be less than upright. Dr Chong estimated that gait would make no more than a 1.5 to 2 per cent difference. But in the case of a person of 1815 millimetres in height, this would result in a difference of 27 to 36 millimetres. Further, the photographs simply do not permit a realistic judgment as to whether this portion of Burke Road slopes away from the camera;
·Dr Chong’s methodology for estimating the height of the top of the subject’s head is particularly troubling. In the course of his oral evidence, he said that he had estimated to the point at which the beanie ceased to be stretched and that in so doing he went to the bottom of the change in appearance of the fabric to ensure he was 100 per cent right. Dr Chong also said:
I just want to estimate, based on the facial look and the indentations of the beanie as to where the height, the top of the head is, and I usually measure below that just to make sure that I do not make an exaggeration of where the height is.
The methodology adopted tended in fact to underestimate the true height of the subject and I do not accept that it is capable of any or any precise application to the three photographs in question. Their resolution may be compared with the photographs tendered by the Crown during cross-examination such as that copied above. These were taken on another day at another place. The photographs analysed by Dr Chong are not detailed photographs. Moreover, the stated basis of the judgment does not accord with common human experience. Nor does it allow for difficulties arising from a downward perspective. Dr Chong accepted that the higher the camera over an object the harder it is to pinpoint the top of the object but said that in this case the angle was not sufficient to make a significant difference.
·Judgment of the height of the top of the skull under the beanie was fraught with real difficulties. It may be inferred the beanie was worn to conceal easy recognition of the person wearing it and I do not accept that deduction of the height of the skull within it was an easy matter. The problem is exemplified by a further photograph which accompanied the front-on photographs tendered in cross-examination.
[34]
·Error in the combination of the factors relating to the effect of gait and estimate of true height under the beanie would be sufficient in itself to bring Dr Chong’s estimates up to the applicant’s height.
[34]Trial Exhibit AB.
It follows that I do not accept that Dr Chong’s evidence was of material probative value if put forward for the purpose for which the applicant contended, namely to positively establish that the subjects of the photographs were not the applicant. It was not reasonably open to regard his evidence as proof of this fact.
In turn, I do not accept that competent counsel would have called evidence from Dr Chong. First, because the photographic evidence went to a peripheral issue, secondly because it was of little probative weight, and thirdly because there is no evidence from counsel who appeared at trial supporting this conclusion. I should add for completeness that it is implicit in my conclusion as to probative weight that there would be substantial forensic risk in calling evidence so plainly open to attack.
I am not persuaded that it can reasonably be said that the trial objectively miscarried because of the incompetence of counsel. If I am wrong in this conclusion and the trial did miscarry, then the further question arises whether any miscarriage could in any event be said to have amounted to a substantial miscarriage of justice. Section 276 of the Criminal Procedure Act 2009 provides:
(1)On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—
(a)the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b)as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c)for any other reason there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 274.
In some cases, it will be possible for a Court of Appeal to conclude that there has not been a substantial miscarriage of justice because, despite an error relating to the trial process, the evidence properly admissible at trial required the conclusion that the applicant was guilty of the crime alleged.[35]
[35]Baini v The Queen (2012) 246 CLR 469, 480 [28] (French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ).
As the High Court explained in Baini v The Queen,[36] care must be taken in reaching such a conclusion. First, there will be cases where the natural limitations of the record of the trial prevent this conclusion being reached.[37] Secondly, the Court’s satisfaction that a guilty verdict was inevitable will not be conclusive of the question of substantial miscarriage in every case. It is a matter to be taken into account in answering the question posed by ss 276(1)(b) and (c).[38] Thirdly, the enquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open.
… at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded,[39] the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt.[40] Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.[41]
[36]Ibid.
[37]Ibid 480 [29].
[38]Ibid 480 [30].
[39]Emphasis added.
[40]Cf R v Grills (1910) 11 CLR 400, 431 (Isaacs J).
[41]Baini v The Queen (2012) 246 CLR 469, 481 [32] (citation and emphasis in original).
Nevertheless, in the present case, I am satisfied that the record does permit the conclusion that conviction was inevitable. Further, because the evidence now sought to be relied upon goes to a matter peripheral to the Crown case, a judgment can be made as to whether the omission to call it might have led to a different result. In my view, conviction was inevitable. The circumstantial case was overwhelming. No reasonably credible explanation of that case was advanced on behalf of the applicant. It was, in my view, not open to the jury to entertain a reasonable doubt as to the applicant’s guilt. Evidence that the man shown in the ATM photos at Camberwell was not or might not be the applicant could not create a reasonable doubt as to the Crown case. In the present case, even if I am wrong in my primary conclusion that no miscarriage of justice occurred, the failure to call the evidence in issue at trial could not be said to have resulted in a substantial miscarriage of justice because conviction was inevitable.
Lastly, given the breadth of proposed ground 8, I must add that there is no reasonably arguable basis for concluding that the applicant’s counsel at trial failed to act with reasonable care in respect of the matters that are the subject matter of grounds 2, 3, 4, 5, 6 and 7.
Conclusion
It follows that leave to appeal should be refused on each ground.
Priest JA:
Having had the considerable advantage of reading the reasons of Osborn JA in draft, I agree with the orders that his Honour proposes, and, with one qualification relating to ground 3, his reasons for those orders.
Ground 3 claims that a miscarriage of justice arose from the prosecutor’s cross-examination of the applicant as to his ‘failure to take an oath as opposed to an affirmation’, which was said to be ‘offensive in causing unfair prejudice to the applicant’.
The present controversy surrounding the applicant’s failure to take an oath arose as follows. In the course of his evidence in chief, the applicant’s counsel asked him about various items depicted in photographs taken of the interior of his BMW motor vehicle on 10 August 2011. He identified one of the items as ‘a Bible’. As far as I can tell, however, beyond this single innocuous reference, there was no attempt in other evidence that he gave to try and enhance the applicant’s credit by capitalising on his possession of a Bible (which, as I have said, was among other items in the car).[42] Notwithstanding that this was so, the prosecutor saw fit to conclude his cross-examination of the applicant with the following series of questions:
[42]I note that a witness, Spiro Galantis, gave evidence in the prosecution case that he was a director of an advertising agency, Community Correct, which employed the applicant as a subcontractor at the end of 2010. He said that the applicant drove a ‘midnight blue’ BMW. When the prosecutor asked the witness whether he and the applicant were ‘friends’, Mr Galantis said that they were friends ‘through church’. The prosecutor then asked ‘what church’ the applicant attended, and the witness replied: ‘It was in East Brunswick at the time. It’s All-Nations Fellowship Christian Church’.
Okay. You pointed out yesterday the Bible in the car?‑‑‑Yes.
And we’ve seen the Bible next to your bed?‑‑‑Yes.
And we know you met Spiros [Galantis], and you used to go to church with him?‑‑‑Yes.
At the Christian Fellowship or All Nations Church?‑‑‑Yes.
Whatever it is – I apologise?‑‑‑Yes. Yes.
You’re a very religious man?‑‑‑I wouldn’t say religious, but I go to church every Sunday, yes.
You wear the cross?‑‑‑Yes. I believe in – I believe in God. I believe in ‑ ‑ ‑
Yes?‑‑‑Yeah. Yeah.
Yet yesterday Mr Tipstaff affirmed you?‑‑‑Yes.
Before giving evidence?‑‑‑Yes.
And reaffirmed you today?‑‑‑Yes.
You chose not to swear on the Bible?‑‑‑Correct.
Thank you?‑‑‑The reason why ‑ ‑ ‑
No – thank you?‑‑‑I will – I will – I would answer that.
No. There wasn’t ‑ ‑ ‑?‑‑‑The reason why is in Matthew, chapter 5, 34 and 37.[43] It says, ‘Do not swear on heaven, or do not swear on earth, but let your “yes” be a yes, and your “no” a no’. That’s why. And I knew I could swear on the Bible to make out that I’m telling the truth, you know, but I believe in God, and I believe there is a God.
I’m suggesting to you you didn’t swear on the Bible because you knew you’re going to be telling untruths?‑‑‑Matthew 5, Chapter 34. Read it. It says, ‘Let your “yes” be a yes, your “no” a no, and do not swear on heaven or on earth’.
[43]In the King James Version, the two verses are:
34But I say unto you, Swear not at all; neither by heaven; for it is God's throne: …
37But let your communications be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil.
At common law, a witness could be asked questions intended to discredit him or her as a witness. Such cross-examination as to credit was directed to credibility or veracity, rather than to his or her ‘worthiness’.[44] The conduct of a witness could not be used to attack his or her credit unless of such a nature as to tend rationally and logically to weaken confidence in his or her credibility.[45] Under the Evidence Act 2008, the ‘credibility rule’ provides that credibility evidence[46] about a witness generally is not admissible.[47] Section 103(1) provides, however, that the credibility rule ‘does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness’.
[44]Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213, 220–1 (Windeyer J); R v Slack (2003) 139 A Crim R 314, 323 [31] (Sheller JA).
[45]Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, 494; Wentworth v Rogers (No 10) (1978) 8 NSWLR 398, 408; R v Slack (2003) 139 A Crim R 314, 323–4 [32]–[34] (Sheller JA). See also R v Sadler (2008) 20 VR 69, 78 [33]–[35] (Nettle JA).
[46]See s 101A and the Dictionary.
[47]Credibility imports notions of both truthfulness and reliability: Dupas v The Queen (2012) 218 A Crim R 507, 584 [265].
In VN,[48] it was held that cross-examination of the accused as to why he made an affirmation, rather than taking an oath, was not unfair and did not constitute an error of law.[49] It was held that the fact that a witness has taken an oath or made an affirmation does not render the witness immune from cross-examination which suggests that the witness is not giving truthful evidence, and that it has long been accepted that after a witness has taken the oath the witness may thereafter be asked whether the witness considers the oath to be binding upon his or her conscience. The witness may be asked whether he or she recognises the responsibility that is associated with either having taken an oath or made an affirmation. Further, it may be suggested to the witness that the witness does not regard the taking of the oath or the making of an affirmation as binding upon his or her conscience.[50]
[48]R v VN (2006) 15 VR 113.
[49]Ibid 140 [108].
[50]Ibid 140 [106].
By s 23(1) of the Evidence Act 2008, a person who is to be a witness in a proceeding ‘may choose whether to take an oath or make an affirmation’.[51] In order for a witness to affirm, there is no need for the witness to have an objection to taking an oath. The common law stipulation of a belief in God is no longer required for the evidence of a witness given under affirmation to have the same effect in law as testimony given on oath.[52] In those circumstances, it seems to me that cross-examination directed to a witness’s reasons for making an affirmation rather than taking an oath will rarely — if ever — tend rationally and logically to weaken confidence in his or her credibility, and thus be a matter fit for cross-examination as to credit. Indeed, cross-examination directed to that subject-matter will very likely be unduly annoying, harassing, offensive or oppressive.[53]
[51]See also Evidence (Miscellaneous Provisions) Act 1958, s 102.
[52]R v T (1998) 71 SASR 265, 270 (Doyle CJ).
[53]See Evidence Act 2008, s 41(3)(b).
The prosecutor put, as his ultimate question, that the applicant did not swear on the Bible because he knew that he was going to be telling untruths. He was not asked whether or not he considered the oath to be binding upon his conscience; whether he recognised the responsibility associated with either having taken an oath or made an affirmation; or whether or not he regarded the making of an affirmation as binding upon his conscience. Taken in context, in my opinion the impugned cross-examination was not a matter proper for cross-examination as to the applicant’s credibility, which is the only basis upon which it was sought to justify it. It was irrelevant to any fact in issue in the trial. The prosecutor should not have asked — and should not have been permitted to have asked — the questions that he did.
In the end, however, there are three reasons for concluding that there has been no substantial miscarriage of justice, and thus that ground 3 cannot be upheld. First, the applicant’s counsel, imbued with the atmosphere of the trial, did not object to the cross-examination. Secondly — and acknowledging that it is difficult to make a definitive assessment based on the bare transcript — the applicant seems to have made an effective riposte to the questioning, which likely rebounded adversely on the prosecution. Thirdly — and most importantly — I doubt that the cross-examination could have made any difference to the jury’s verdicts. It was a blemish in the trial. But the prosecution’s case was, in my view, as the reasons of Osborn JA amply demonstrate, overwhelming. Conviction was inevitable.
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