- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Davy  QCA 312
CA No 201 of 2016
DC No 412 of 2014
Court of Appeal
Appeal against Conviction & Sentence
District Court at Brisbane – Date of Conviction: 22 June 2016 (Long SC DCJ)
19 December 2017
22 September 2017
Fraser and McMurdo JJA and Boddice J
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONVICTION UNSAFE OR UNSATISFACTORY – where the appellant was convicted by a jury of one count of fraud, as a member of a governing body, in excess of $30,000 – where the appellant was sentenced to six years imprisonment, with no order as to parole eligibility – where the appellant contends that he was not afforded a fair trial as he was unrepresented, that the trial was conducted unfairly, and that the trial Judge misdirected the jury in respect of evidence – where the appellant seeks leave to appeal his sentence on the grounds that it was manifestly excessive in all of the circumstances – whether the appeal should succeed – whether leave to appeal against sentence should be granted
Dietrich v The Queen (1992) 177 CLR 292,  HCA 57, cited
R v Baden-Clay (2016) 258 CLR 308;  HCA 35, applied
R v Barwood, unreported, Martin SC DCJ, DC No 2086 of 2016, 25 October 2016, considered
R v Clapham  QCA 99, applied
R v Cox  QCA 262, considered
R v East (2008) 190 A Crim R 225;  QCA 144, applied
R v Lim  QCA 172, considered
R v Martin  QCA 257, considered
R v Meehan, unreported, Atkinson J, SC No 873 of 2017, 14 July 2017, considered
R v Sheppard  1 Qd R 504;  QCA 57, considered
R v Shiels  QCA 115, cited
R v Spalding  QCA 538, considered
R v Tindale  QCA 24, considered
R v Wheeler & Sorrensen  QCA 223, considered
The appellant/applicant appeared on his own behalf
J A Wooldridge for the respondent
The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.
- McMURDO JA: I agree with Boddice J.
- BODDICE J: On 22 June 2016, a jury found the appellant guilty of one count of fraud as a member of a governing body, the property value being in excess of $30,000. The appellant was convicted and sentenced to six years imprisonment. A period of 390 days pre-sentence custody was declared as time served in respect of that sentence.
- The appellant appeals his conviction. The stated ground of appeal is that the conviction is unsafe and unsatisfactory in all the circumstances. The appellant, who is self-represented, complains that he was not afforded a fair trial as he was self-represented, having dismissed his previous legal representatives at an earlier trial on the basis of incompetency; that the trial was conducted unfairly in that the complainant did not have authority to act on behalf of the governing body the subject of the charge of fraud, was biased against the appellant, had a motive to lie and illegally provided an accountancy report to police; and that the trial Judge misdirected the jury in respect of the evidence.
- The appellant also seeks leave to appeal his sentence. The sole ground, should leave be granted, is that the sentence imposed was manifestly excessive in all the circumstances.
- The appellant was born on 24 February 1944. He is presently 73 years of age. He was aged between 64 and 66 at the time of the offence which was committed between 7 August 2008 and 21 December 2010.
- The governing body was the Body Corporate for Tower Mill Motor Inn (Community Titles Scheme 1918). The Tower Mill Motor Inn was a complex containing 107 strata titled apartments. A large majority of the owners made their apartment available for rental to the general public on a casual stay basis.
- The fraud concerned monies transferred from the body corporate accounts to accounts controlled by the appellant. The appellant had been elected as body corporate secretary in 2003. He was subsequently elected chairperson, a position he held for various periods. Relevantly, he was chairperson for the period 27 August 2007 to 16 December 2010, during which period the offence was committed by him.
- The Crown case was that the appellant made 42 unauthorised withdrawals from the bank account held by the body corporate. The funds so accessed, totalling in excess of $550,000, were used by the appellant for his own purposes, including payment of his own living expenses and/or to purchase assets in his own name.
- The appellant did not dispute he had undertaken such transactions. His defence was that he honestly believed he was authorised to use those funds to obtain the best return for members of the body corporate, and the use of those funds was without an intention to defraud. The best return in all the circumstances was to pursue another owner, Peter Burnitt, who had caused significant expense to the body corporate through encroaching on common areas on the ground floor of the complex.
- The appellant made a number of admissions at trial. Relevantly, they included that he had made the 42 unauthorised withdrawals from the bank account held by the body corporate, that the monies so obtained had been placed in accounts under his own control before being used for payment of his own personal expenses, that he did not use any of the money so obtained for body corporate expenses and that he did not consult or tell any of the owners of units in the complex that he was transferring body corporate money into his own personal bank accounts.
- Detective Dylan Brook, the investigating officer, took two statements from Burnitt, who indicated he was making a complaint on behalf of the body corporate’s committee. Burnitt did not produce any form of authorisation. Brook believed that as a unit owner, Burnitt was able to make a complaint. Burnitt provided documents, including a report prepared by Deloitte at the request of the body corporate’s committee. The author of that report was Graham Newton.
- During the investigation, Brook obtained documents from various banking institutions relevant to each of the admitted transactions. All of the relevant transactions were recorded in bank accounts held by the body corporate and the appellant.
- Graham Newton, a partner at Deloitte, was engaged by the body corporate on or around 3 April 2012 to conduct a reconstruction of its bank accounts for a period between 2008 and 2011. He reviewed two Commonwealth Bank accounts, a Macquarie Bank account and a Suncorp bank account. The process involved identifying debit transactions from one account and identifying identical credit transactions in another account. Some of the transactions involved cheques or bank cheques. Others involved cash or transfers by electronic means.
- The investigation revealed that each of the 42 transactions the subject of the charge had resulted in the debiting of funds from the body corporate’s account and the crediting of similar amounts into accounts in the name of the appellant or entities associated with the appellant. There was also a repayment from the appellant’s account to the body corporate’s account in the sum of $70,000 on 16 February 2009.
- As a consequence of these transactions, the balance of funds in the accounts held by the body corporate significantly reduced and the funds in the accounts held by the appellant or associated with the appellant significantly increased over that same period of time. Those monies were transferred out of the accounts controlled by the appellant over time.
- In cross-examination, Newton accepted he had been involved in a number of investigations concerning fraudulent entries and false invoices. In each case, there was an element of dishonesty. These transactions appeared to be relatively straight forward. Bank accounts are easy to trace within Australia. They leave a paper trail.
- Jeremy Francis, an employee of the Commonwealth Bank, gave evidence identifying documents obtained from the Commonwealth Bank as part of Deloitte’s investigation. The documentation recorded transactions consistent with the 42 admitted transactions. The relevant documentation included withdrawal forms, bank cheques and bank statements. There were occasions when cash amounts were given as a consequence of a cheque being presented for cash. Each of the transactions had occurred in accordance with the approved method of operation of Commonwealth Bank accounts held in the name of the body corporate.
- Warren Tapp, who purchased a unit in the Tower Mill Motor Inn in 2011, became chairperson of its body corporate in January 2012. He finished in June 2015. When Tapp first became chairperson, the body corporate manager was a body corporate service which had previously been appointed administrator of the body corporate in 2010. The contact in 2012 was Jonathan Flannery.
- Tapp did not receive notification of any body corporate meetings between purchasing his unit in 2011 and commencing as chairperson in 2012. When he became chairperson, accounts or invoices were sent by the body corporate manager to the committee for authorisation. The committee was only allowed to authorise payments or incur costs up to $20,000. The committee would circulate a flying minute to obtain authorisation for the payment.
- When Tapp commenced as chairperson he asked Flannery for details of the amount held in the body corporate’s bank accounts. He was told it was $14,000. He knew something was wrong as the annual levy for income was about $500,000. There should also have been a sinking fund of several hundred thousand dollars. As a consequence, the committee decided to appoint Deloitte to undertake a forensic investigation. Even before the forensic audit report was received in April 2012, the committee realised the body corporate was insolvent. A special levy was imposed to obtain funds for the body corporate to survive for the next 12 months.
- Tapp said the committee had not decided what to do in relation to the contents of the Deloitte report before he was advised by an owner, Burnitt, that he had contacted police. All owners had been provided with a copy of the Deloitte report. As Burnitt was pursuing the matter, the committee felt it need not do anything more about the report. At that time the committee was made up of Tapp, John Honeycomb, Clem Christie, Des Faggotter and Wolfgang Schroeder.
- During his time as chairperson the body corporate had an agreement with Transmetro to operate the Tower Mill as a hotel. Tapp found out the contractual arrangements, which had been in place since 1994, had not been followed up to that time. Transmetro was looking for payment of around $700,000 for caretaker fees not paid by the body corporate since 1994. In addition, Transmetro was claiming about $80,000 for repairs and maintenance paid by it which ought to have been undertaken by the body corporate.
- A new agreement was negotiated with Transmetro. Transmetro agreed to waive the $700,000 fee. The body corporate agreed to start paying caretaker’s fees from 2012. The caretaker fee is now approximately $90,000 a year. The body corporate also agreed to pay the amount of $80,000 over the next two years. Before agreeing to that payment, Tapp made enquiries in relation to the work Transmetro had undertaken. He also obtained a copy of the contract with Transmetro. He was satisfied Transmetro had undertaken work and should be paid for it. He was not aware of what arrangements Transmetro had with the body corporate prior to his appointment as chairman.
- In cross-examination, Tapp accepted the manager of Transmetro, Graham Marks, asked him whether he would be interested in standing as chairperson of the body corporate. For a time, Tapp acted as treasurer of the body corporate. Burnitt was the elected treasurer of the body corporate. At no time was Tapp or any member of the committee approved as signatories of the body corporate’s bank account, which was operated by the body corporate manager. The committee would authorise a payment. The manager would physically make that payment from the bank account.
- Tapp agreed there had been a dispute between the body corporate and Transmetro about who was responsible for repairs and maintenance. Maintenance of common property areas was the responsibility of the body corporate. Transmetro was simply a hotel operator. Transmetro told him it had been paying all of the accounts for maintenance of the common areas in 2010 and 2011 because there was no money in the body corporate. Transmetro felt it should maintain the building to a standard appropriate for a hotel operator so that it could continue in operation.
- After Tapp became chairperson, the committee authorised any repair or maintenance work to be undertaken on the common areas based on quotes approved for payment by the committee. Transmetro had no authority to undertake work on behalf of the committee or to send bills. If Transmetro needed some repairs undertaken to common areas, the committee would arrange quotes and issue a flying minute for approval. The flying minute would be ratified at the next formal meeting of the committee.
- Tapp agreed that during his time as chairperson, Burnitt and Transmetro controlled a majority, ie 50 per cent of the votes in the body corporate. Tapp did not accept Burnitt and Transmetro controlled the committee. Tapp accepted that the 2012 committee was eventually replaced by a committee which included Burnitt and one of his daughters. Burnitt’s interests had three seats on the committee. Tapp did not accept Burnitt had control of the committee by having four. Tapp denied he always voted for Peter Burnitt.
- Tapp agreed that the year after he started as chairperson the owners of the body corporate began paying him a fee for that role. Tapp was not prepared to continue to serve for no fee having regard to the workload. He received fees for other board positions. Initially, Tapp received $24,000 plus GST a year to be chairperson and secretary of the body corporate. In the following year, it was increased to $30,000 plus GST. Tapp chaired every committee meeting, although he may have missed one in three or four years. Tapp did not stand for re-election in 2015.
- The payment of a fee was put to the owners of the body corporate. Tapp agreed that in such a vote, a majority of the votes would be in the hands of Burnitt and Transmetro. He also agreed that once Burnitt’s interests had three seats on the committee, Tapp’s vote would give a majority of four out of a total seven committee members. Transmetro did not have a particular representative on the committee. Transmetro was allowed to attend committee meetings in a non-voting capacity. They were entitled to vote at a general meeting as an owner of units in the complex.
- Tapp said between purchasing his unit and being asked to stand for the chair of the committee he had received a levy notice. Marks told him not to pay it because it was being issued by a person who purported to be chairperson who was collecting money into his own bank account. Tapp did not pay the levy. The levy notice contained details of a bank account in Redcliffe or Scarborough which was not a body corporate account.
- After Tapp took over, the body corporate started to issue levies on a quarterly basis. The levies carried an interest charge if not paid on time. The charging of interest was necessary as there was little money in the bank and major maintenance jobs had to be undertaken. The way to achieve this was to charge a higher levy to try and recover enough funds to undertake those things. Whilst owners paid a gross levy which included electricity, they received a significant reimbursement back from Transmetro reducing the net cost to the average owner. Transmetro reimbursed 80 to 85 per cent of the levy.
- After he was elected as chairperson in 2012, Tapp found out there was a dispute about an encroachment by Burnitt onto the common property on the ground floor of the Tower Mill. The encroachment related to an area Burnitt was operating as a tavern or bar. Burnitt had taken over the use of some common area on the ground floor beyond the particular lot. There was an unresolved application in the Supreme Court by Burnitt. As far as Tapp knew, that application was still on foot.
- Whilst Tapp was chairperson, a proposition had been put to an extraordinary general meeting whereby Burnitt was to pay $450,000 to the body corporate in exchange for a transfer of title to the property. The proposition required 100 per cent support as it had to be a motion without dissent. It failed at the extraordinary general meeting as some voted against it. Tapp supported the proposal for Burnitt to pay money in exchange for common property being transferred to him because the legal advice received by the body corporate was that was the process it ought to follow.
- Tapp accepted he told an investigator with the Director of Public Prosecutions that the first extraordinary general meeting failed because four people, described as “Davy’s cronies”, voted against the motion on instructions from the appellant. The people he referred to had indicated to Tapp they were taking instructions from the appellant. Tapp found it interesting because two or three people who had reached the agreement with Burnitt ultimately voted against the motion at the extraordinary general meeting.
- After the motion failed to pass at the extraordinary general meeting in 2012, Burnitt applied to the Body Corporate and Community Management Authority (“BCCM”) for orders that the four people who had voted against the motion had acted unreasonably. After that body rejected Burnitt’s application in 2013, the body corporate’s solicitors advised the original motion had failed due to a survey problem. The body corporate arranged for another survey and a valuation.
- New documentation was prepared by the solicitors ready for a second extraordinary general meeting. Tapp signed paperwork in preparation of that meeting. The meeting was subsequently held up because another application was filed with the BCCM. Thereafter, the dispute went to mediation and the Body Corporate Commissioner. The body corporate solicitors advised they should prepare for another extraordinary general meeting, which was organised for 22 January 2014.
- Tapp signed a transfer of the common areas in anticipation of that meeting. Burnitt took it away with him. Burnitt was a member of the committee at the time he left the document with him. About eight or nine months later Tapp became aware it had been lodged with the Lands Office. He instructed the body corporate solicitors to write to Burnitt’s solicitors asking for the property to be transferred back. By the time Tapp finished as chairperson of the body corporate the transfer had not been reversed due to difficulties with the fact it had already been lodged and stamped. He received legal advice the body corporate ought to re-activate its Supreme Court proceeding to let the Court decide ownership and compensation.
- Tapp accepted the body corporate’s by-laws required owners not to obstruct the lawful use of common property, to comply with all directions and rules of the body corporate in relation to the common property and to comply with any requirement or authorisation of other statutory or local authorities. An owner also must not make any improvements without the prior written consent of the body corporate which may remove any unauthorised improvements and recover the costs of such removal. As an owner of a unit in the Tower Mill, Tapp would obey all of those by-laws.
- William Hickey, solicitor, acted for the body corporate in legal matters from late 2005 until 2009. His contact was the appellant as chairperson. Hickey was involved in the dispute between the body corporate and Burnitt. Burnitt had approached the body corporate with a proposition about developing the ground floor of the building for a tavern, bar and restaurant area. That proposal included the transfer of a licence from Transmetro to Burnitt. Burnitt subsequently wrote to owners seeking approval for the plans, acknowledging he required body corporate support to alter existing agreements.
- The appellant instructed Hickey that Burnitt had called an extraordinary general meeting in 2005 proposing six motions, five of which were directed at authorisations required before Burnitt could undertake the proposed works on the ground floor. The last motion sought the removal of the appellant as chairperson of the body corporate. Burnitt attended the EGM in March 2005 as a nominee for Transmetro, purporting to use their power of attorney contained in every lease document with every owner. The meeting was adjourned to April 2005, when the appellant declared Burnitt’s powers of attorney invalid.
- Notwithstanding that the motions failed to pass, Burnitt commenced building work in June 2005. The appellant instructed Hickey to request that Burnitt and Transmetro cease work and attend a meeting with the committee. No response was received to that request. A subsequent attempt by Burnitt, at the annual general meeting in July 2005, to have motions passed changing committee members failed. Burnitt lodged an application with BCCM seeking adjudication on the vote count.
- In September 2005, Hickey was instructed to obtain a report from Heilbronn Group, town planners and surveyors, in relation to the work being carried out by Burnitt in the common areas. The appellant instructed Hickey that Burnitt described the report as factually inaccurate but declined to attend a meeting with the committee to address any criticisms of the report. Hickey’s firm was engaged to act on behalf of the body corporate in the dispute. By that stage a supplementary report had been obtained from the town planners and surveyors which concluded that substantial building works had been undertaken on an area of common property.
- At one point, the appellant gave Hickey instructions to look at potential breaches by Transmetro of the caretaking and letting agreements, in the context of Burnitt’s actions in relation to the encroachment. There was a suggestion by Burnitt’s interests that they had been given permission by Transmetro to deal with the common property the subject of the encroachment. Motions put in an EGM on 24 February 2006 for approval to issue legal proceedings against Transmetro failed to pass.
- An issue arose in relation to Burnitt’s interests occupying lots which Transmetro had an obligation to occupy under a caretaking and letting agreement. Burnitt sought the approval of the body corporate for the letting agreement to be changed to release Transmetro from occupying those lots. An issue also arose as to the appropriate tenure held by Burnitt for the purposes of a liquor licence over the area.
- After Hickey was engaged by the body corporate, the BCCM ordered Burnitt to seek, within one month, the approval of the body corporate for his encroachments and the exclusive use of that part of the common property. Burnitt did not comply with that order. Burnitt subsequently unsuccessfully sought the approval of members at an EGM held on 24 February 2006. Proceedings were commenced in the Supreme Court.
- Notwithstanding this situation, Burnitt continued to undertake the work. Burnitt completed that work in August 2006. His tavern opened in September 2006. In June 2007, the BCCM proposed making no further orders under the dispute resolution provisions and encouraged the parties to explore a commercial resolution. A compulsory conference was held during which the adjudicator from BCCM commented that the body corporate had done nothing wrong. No resolution was achieved at that conference. Subsequently, Burnitt withdrew his applications before the BCCM.
- Burnitt commenced an application in the Supreme Court seeking declaratory relief to use the common property or alternatively, payment of compensation for use of that area. Hickey gave advice to the body corporate that if it was impractical to remove an encroachment the Court could order its approval, on the payment of compensation to the body corporate. That process would require the precise area of the encroachment to be established and a value to be put on that area per square metre.
- The body corporate obtained a valuation and a survey which established that the encroachment was in the order of 400 square metres. The unimproved capital value of that area was in the order of $1.2 million. If it was established the encroachment occurred by negligence or deliberate actions, the compensation may be significantly higher. Burnitt would also have to pay costs of any proceedings.
- As the dispute was in the Supreme Court and was going to be expensive, it was necessary to prepare documentation for consideration by members of the body corporate at an extraordinary general meeting. A memorandum to unit owners dated 25 February 2009 proposed a motion to give authority to the committee to instruct and conduct the Supreme Court proceedings, with an upper limit on total expenditure for legal expenses of $100,000. The motion was not passed at that meeting. Accordingly, Hickey ceased to act for the body corporate in those Supreme Court proceedings. Hickey received a letter from Burnitt’s solicitors advising the vote was an overwhelming majority against the motion.
- Hickey agreed the appellant was direct and forthright and exhibited a passion for wanting to pursue the issue for the body corporate. Hickey also agreed that the liquor licensing division had advised the body corporate that issues such as the right of Burnitt’s interests to occupy the area in which the tavern lay should be pursued through the BCCM or in a Court if necessary. A difficulty for the body corporate committee was that Burnitt was occupying lots which were leased to Transmetro. The body corporate was taking issue with Burnitt’s right to occupy those areas.
- Bradley Browning, a unit owner and member of the body corporate’s committee, was chairperson of the body corporate in 2007 for three weeks. Marks asked him to nominate for chairperson. Browning was reluctant to stand and due to health issues did not last very long at all. The body corporate never had a full committee meeting whilst he was chairman. Browning was replaced as chairperson by the appellant. He did not remain on the body corporate committee thereafter.
- Browning could not recall any major work being undertaken by the body corporate on the common areas of the Tower Mill after he ceased as chairperson. He did recall the development of a bar downstairs by Burnitt. Marks was in favour of the development. Browning did not have a problem with Transmetro. The appellant and some other owners did as they complained about the returns on their investments. The appellant had taken Transmetro to Court in 2004 to recover rents owing to him as an owner.
- Browning did not recall any occasion when there was a vote on any motions with respect to payments being made to the appellant by the body corporate. There was a voting paper which approved the appellant being a signatory to the body corporate’s bank accounts. He did not recall any documentation in which the body corporate granted the appellant permission to make payments without first obtaining authorisation from its committee. He did not recall receiving financial statements from the body corporate for a number of years after he ceased as chairperson. He did not recall ever receiving any documentation authorising the appellant to transfer funds from body corporate accounts to his own bank account or businesses.
- In cross-examination, Browning agreed he had at one time remarked about the poor standard of the toilets in the foyer of the Tower Mill. Browning was not a supporter of making the building more attractive. He was aware there was a problem between the appellant and the authorisation of Burnitt’s work. He expected Burnitt would pay if he had taken any part of the common area. He agreed there was a dispute about the common area before he became chairperson of the body corporate.
- Browning said when he became chairperson there was a lot of maintenance to be done to the building. Transmetro were covering all of those costs at that time. His concern was the building was getting left behind and the body corporate was spending lots of money on solicitors trying to stop everything. He wanted it sorted out so that money could be spent on the building.
- Browning was re-elected as a member of the committee of the body corporate in 2012. At that time, Transmetro and Burnitt’s interests probably had an edge in their entitlement to vote. Burnitt still had not paid anything for the common area he had encroached upon. Browning understood it was still going through as a dispute. At that time, the chairperson was Tapp. It was a paid position and Tapp did all the work. The committee also comprised Burnitt as treasurer and one of Burnitt’s daughters.
- When Browning resigned from the committee the building was in a good way. There was plenty of money in the accounts. A lot of maintenance work had been undertaken. He did not know when he was on the committee that Burnitt owned companies were quoting for the maintenance work. He learned of this fact after he left the committee.
- Peter Burnitt, a developer and builder, owned several lots in the Tower Mill. They were held in the names of various entities. He purchased a portfolio of lots from Dan Norman, the original strata titler of the Tower Mill. Those lots included lots on the ground floor which were just like conference rooms. Burnitt was attracted to the Tower Mill because of the income. There was a 25 year lease with Transmetro. There were also caretaking and letting agreements between Transmetro and the body corporate.
- There was a body corporate management firm involved in the complex between 2006 and about 2009 or 2010. Transmetro leased units in the complex. Two of his daughters also owned one lot each in the Tower Mill Motor Inn. He was a member of the body corporate committee for one year in either 2008 or 2009. Burnitt did not during this time ever see any paperwork authorising or giving permission to the appellant to spend money on behalf of the body corporate.
- Burnitt frequently visited the complex between 2008 and 2010. He would visit at least once a week. Throughout this period, he did not observe any major works being undertaken by the body corporate. Transmetro was undertaking any maintenance work. He also undertook a little bit himself.
- Burnitt said his attempts to obtain a position on the body corporate committee were constantly rebuffed by the appellant who was chairman at the time. His votes for the 2009 AGM were ruled invalid by the appellant. Burnitt arranged for solicitors to correspond with the body corporate chairman. They sought access to the papers. To his knowledge they were never received by the solicitors.
- At the time he first purchased lots in the complex, Burnitt did not know Transmetro had a provisional general licence approved for the ground floor. Marks mentioned it to him some six or seven months after he first purchased a lot in the complex. At that time Transmetro had no plans drawn up for the ground floor. Burnitt contacted Liquor Licencing about the licence. The existence of the licence was a plus for Burnitt.
- Burnitt spoke to an architect, John Giles, some months after he found out the liquor licence was still valid. His interests made application to get a full licence. Giles introduced him to a private certifier, Mark Cullinan. Burnitt denied he instructed Giles and Cullinan not to speak to the appellant. He also denied he was covering up what he had planned for the ground floor area of the complex. Burnitt was not aware whether Giles had been asked by Dan Gorman to draw up plans for that area in June 2003.
- Giles did not draw up any plans before Burnitt purchased the lots. The plans Giles drew up for Burnitt showed the common areas that were encroached upon in the construction work. Transmetro permitted him to build upon those areas. The encroachments included building on air space over common area carparks. Burnitt lodged plans with the Brisbane City Council in about May 2004. The Council approved those plans, which were certified by the private certifier.
- In cross-examination, Burnitt agreed his business Logan City Electrical had 80 employees and had significantly more in 2006. He also agreed he owned a hotel at Burnett Heads. When he first commenced purchasing lots in the Tower Mill he had experience in Court on other body corporate matters. He knew about strata title.
- Burnitt agreed that after work had commenced on refurbishing the ground floor lots, complaints were made that he had moved walls forward into the common area. A clause in the community management statement gave Transmetro, as manager, control over body corporate common areas on the ground floor. Transmetro gave him permission to move the wall forward. Transmetro was quite happy with the proposal as long as Burnitt looked after and did not degrade those common areas. The building work was in accordance with the approved plans.
- Burnitt accepted he had to partition off part of the foyer whilst undertaking that construction work. In undertaking the work, he demolished a wall on the eastern side so that he could extend the bar area. Burnitt accepted that in building the tavern on the ground floor he placed toilets in the common area. That work was not necessary for licencing requirements but was part of the plans approved by Council. It involved rearranging pre-existing toilets on the ground floor.
- There was no written agreement with Transmetro to carry out that work in the common area. Burnitt signed an agreement with Transmetro for the transfer of the liquor licence. His proposal had the potential to financially advantage Transmetro and all of the owners of the complex. There was the potential for increased rents and an increase in valuation.
- Burnitt accepted he had sent letters to the body corporate indicating all renovations had been carried out in accordance with the approved plans and that if the committee did not co-operate in arranging for his company to purchase common areas at an independently determined value, an appropriate application would be made for an order compelling it to do so. Burnitt accepted the consent of the body corporate was important for licensing requirements.
- Burnitt agreed he sent a letter to unit owners dated 4 April 2005 seeking their proxy in respect of motions, including a motion to dismiss the body corporate committee. At the body corporate meeting held on 11 April 2005, he was represented by a barrister who contended the powers of attorney sought to be exercised by Burnitt as company nominee for Transmetro were valid. The appellant, as chair, ruled the powers of attorney invalid. Burnitt agreed the BCCM subsequently dismissed an application for an order to uphold the powers of attorney granted by owners under lease back to Transmetro.
- Burnitt agreed that at the same meeting his barrister raised that the letting agreement with Transmetro would need to be changed as Transmetro was required to hold four lots, some of which lots Burnitt owned. Burnitt took up occupancy of those lots for his tavern even though they were under lease to Transmetro. Transmetro was not using the area and was not paying the rent for those lots. Transmetro allowed him to use that property in the renovations for the bar area.
- Burnitt did not sign any agreement with Transmetro to terminate those leases. He reached a verbal agreement that Transmetro would no longer pay rent and in exchange would let him use those lots for the tavern. Burnitt accepted such an arrangement carried risks as Burnitt could be forced to vacate if the arrangement broke down. Burnitt agreed owners of lots had no right to occupy them during the term of the lease with Transmetro and must allow Transmetro quiet enjoyment of that area and of the common property.
- Burnitt agreed that when he undertook construction work a post was built in between two carparks. Burnitt’s interests were made by the appellant to shift the post a distance of 50 to 100 millimetres because it encroached onto his carpark. Those posts were relocated onto body corporate common property with the approval of the body corporate and Council. Burnitt also agreed his interests needed to apply for a material change of use of the ground floor area as a consequence of a complaint by the appellant. The area was previously designated as a café/restaurant.
- Burnitt agreed that towards the end of 2005, an adjudicator at BCCM made an order requiring he seek the approval of the body corporate in relation to the encroachment of the common area on the ground floor. In 2006, his lawyers engaged Cameron Brothers to undertake a valuation. The body corporate had engaged CB Richard Ellis to produce a valuation. Cameron Brothers’ valuation was 10 per cent lower than CB Richard Ellis. There was also a dispute between the valuers as to the size of the area in question. As a result, both parties arranged for a surveyor. Burnitt agreed his valuer expressed the opinion that there were no records available showing approvals for the extensions and refurbishment of the ground floor lots by the body corporate committee. The valuer also only referred to private certification of the proposed refurbishment plans.
- An agreement was reached in 2009 to pay the body corporate for the common area the subject of the encroachment. The arrangement did not proceed because the appellant voted against it. Burnitt thought the appellant was the only lot member who voted against it. The parties went back into further negotiations, which are ongoing.
- Burnitt agreed he and Tapp signed a transfer of the common property to his interests. The transfer was signed in advance to get it ready to submit when the body corporate approved the transfer. The transfer document was signed by Tapp and Burnitt in front of a lawyer. It was given to the lawyer so that it was ready to be lodged once the letter of approval had been obtained from the body corporate. In error, the lawyer lodged the document with the relevant department. After initially being rejected, it was ultimately accepted by the department. The lawyer tried to have the transfer reverted back but without success.
- Burnitt first became aware the transfer had been registered in February 2015. He wrote an email to the body corporate manager advising the registration had occurred in error and that at no time was there any fraudulent act or underhandedness intended by any party. Burnitt could not explain how his bank arranged a mortgage over that property. The bank always had a mortgage over that property. As far as he was aware, he did not sign any new mortgage documents. He rang the bank the same day he found out about the registration and told them it would be reverted back in the Titles Office.
- Burnitt said he always intended to pay for the use of the area the subject of the encroachments. There was no specific agreement for paying at the time he first encroached on those areas. Burnitt accepted that the BCCM declared that the work being undertaken by his interests on the ground floor, insofar as they encroached on common property, had not been properly authorised by the body corporate.
- Burnitt agreed there were occasions when two of his companies quoted for undertaking work on behalf of the body corporate. Burnitt was asked by the body corporate’s managers and chairperson to get those jobs done. No maintenance work had been done in all the time the appellant was chairman. There was no money left. Burnitt accepted that the body corporate committee when Tapp was chair accepted quotes from companies associated with Burnitt. Burnitt did not consider this a conflict of interest. The invoices and quotes went to the body corporate manager. The body corporate approved any work before it was undertaken.
- Burnitt agreed that in May 2008 he wrote to the appellant barring him and his wife from the hotel and the premises. The appellant was harassing staff and intimidating people. The appellant was at one point “marched out” of the building by the manager.
- Kenneth Ferguson, the principal in a legal firm Georgeson & Company Solicitors until 2009, sold his firm to an entity associated with the appellant. To his knowledge, the firm at no time did any work in connection to the Tower Mill body corporate before he sold the firm. He did not receive any payment from the appellant for the purchase of the firm. He had never seen a cheque in the sum of $10,000 payable to Georgeson & Company Trust Account.
- Jonathan Flannery was employed by the body corporate service which was appointed administrator of the Tower Mill Motor Inn pursuant to an adjudicator’s order on 16 December 2010. Initially, Daniel Moy was appointed administrator. On 12 August 2011, Flannery was appointed as administrator.
- The business of administrator involved undertaking the duties and obligations of the body corporate committee. No levies were charged in the period that the body corporate was subject to administration. The administration ceased after the holding of the annual general meeting in 2012. At that time, the company associated with Flannery was appointed body corporate manager by the committee. That arrangement as manager concluded in July 2015.
- Flannery said upon appointment as administrator, the appellant provided the company with a number of documents, including minutes of previous meetings as far back as 1994. The appellant provided body corporate bank account details and cheque butts in respect of a Commonwealth Bank account. Among the documentation provided was a document bearing a date 22 August 2007. It recorded minutes approving the closure of the body corporate accounts operated by the then body corporate manager and the opening of new body corporate accounts, with the appellant as the authorised signatory.
- The documents included a motion dated 30 May 2008 to terminate the services of the then body corporate manager. There was also a minute dated 1 August 2008. Flannery could not recall receiving any minutes for meetings between those dates. There were no minutes for the balance of 2008. Flannery received minutes of the annual general meeting dated 16 April 2009 and of an extraordinary general meeting on the same date but no other minutes for 2009 or 2010 up to the appointment of his company as administrator.
- Flannery said that when they were initially appointed administrator an expert was commissioned to determine the state of the building and requirements for works. There was a significant list of items that were recommended to be completed by way of repairs and maintenance and capital works. Flannery said after their appointment they recommended as part of their administrator’s report, that accountants be engaged to prepare a forensic examination of the body corporate accounts. During that process the accountants isolated particular cheque numbers.
- Flannery said a motion to terminate an agreement that is being considered by a body corporate committee should be the subject of notice to all owners. Further, any motions passed by flying minute should as a matter of practice be ratified by a full committee meeting, at the next sitting of the committee. In respect of any annual general meeting or extraordinary general meeting, there is a legislative requirement that all owners be sent an agenda and a copy of the proposed motions within a certain timeframe of the proposed meeting date.
- In cross-examination, Flannery agreed the appellant unsuccessfully stood for the position of chairperson and for committee in January 2012, being the first committee formed after the body corporate was placed in the hands of an administrator. That new committee drew up a budget. It proposed raising levies from owners which is very common in a body corporate. The proposed method was to strike a large quarterly levy covering both the administration and the sinking fund. Transmetro was to reimburse owners in the order of 80 to 85 per cent of that amount.
- The amount each individual had to pay by way of levy was a separate amount due to the body corporate. If an owner failed to pay the body corporate levy there was a debt recovery process. The reimbursement from Transmetro had no relationship to that debt or its recovery. That arrangement was an individual agreement between owners and Transmetro as part of their individual leases. It was not a body corporate arrangement.
- Flannery agreed Transmetro asked the body corporate to send a letter with the levy notices confirming that owners were entitled to a reimbursement and requesting they contact Transmetro. Flannery believed a significant proportion of the administrative levy imposed by the body corporate could be reimbursed by Transmetro. He denied it was a concocted arrangement. It was an obligation of Transmetro to reimburse the owners under their lease. There were a few owners who did not have leases with Transmetro.
- Flannery agreed a conventional arrangement was for a body corporate to invoice on a quarterly basis an administration fee and a sinking fund amount but to include a discount for payment by the due date. No different arrangement was organised for the Tower Mill. The body corporate was responsible for expenditure and required to obtain those funds from owners. The interest rate on outstanding levies was the highest applicable under body corporate legislation namely, 30 per cent per annum. Flannery agreed companies associated with the appellant were wound up because of outstanding levies following body corporate action. The levied amount included significant interest charges.
- Flannery agreed that companies associated with Burnitt quoted for work to be undertaken to the Tower Mill. On occasions there were two quotes, both from companies operated by Burnitt. Sometimes they were the only two quotes. Flannery advised the committee that needed to be disclosed by Burnitt. His recommendation was that Burnitt should abstain from voting on any resolutions in relation to those matters due to a conflict of interest. Flannery agreed the minutes recorded that on occasions Burnitt voted in relation to quotations provided by his company. Burnitt should not have voted on that motion. Flannery advised the body corporate a resolution must be circulated to owners so that there was an awareness. Part of the disclosure was that no other contractor was prepared to provide quotes and do work at Tower Mill.
- Flannery agreed that after the appointment of the administrator Transmetro raised the payment of caretaker fees. His investigation revealed that no caretaker fees had been paid in the past and that if the claim proved to be correct fees were outstanding for the period 1994 to 2011. Discussions between the committee and Transmetro resulted in a caretaker fee being paid from when the body corporate held the AGM in 2012. That fee was in the order of $90,000 per year.
- The body corporate also agreed to reimburse Transmetro for outstanding invoices for repairs and maintenance. The arrangement was to pay the sum in two amounts of approximately $40,000 each, over two years. Copies of the invoices provided by Transmetro were researched and Flannery confirmed the expenses were the responsibility of the body corporate. Thereafter, the body corporate paid invoices for repairs and maintenance directly, including the entire bill for electricity. There were no individual meters for the lots. This was not uncommon for a body corporate.
- Flannery agreed he became aware there had been registered a transfer of common property on the ground floor to interests associated with Burnitt. Flannery was concerned the correct process and approval had not been completed by the body corporate. The transfer had been registered without payment and without approval.
- Graham Marks was employed by Transmetro in connection with the Tower Mill Motor Inn between 2003 and 2011. Originally, he was marketing manager. In about 2005, he took over as property manager/general manager of accommodation. Marks had numerous dealings with the appellant whilst he was chairperson of the body corporate. Marks also attended a number of body corporate meetings on behalf of Transmetro which owned units in the building. He attended the 2008 annual general meeting and the annual general meeting and extraordinary general meeting held in 2009.
- The units in the Tower Mill were leased by Transmetro and rented out as accommodation. The lease was between Transmetro and the owner of each lot. They were then sub-let on a hotel basis. The arrangement between Transmetro and the body corporate was that the body corporate was responsible for repairs and maintenance of common property. After a period of time, the body corporate ceased paying for those repairs and maintenance. In order to keep the motel functioning, Transmetro paid those amounts. Invoices were sent to the body corporate for reimbursement. Marks believed that up until 2005 any repairs were arranged by the body corporate managers. A problem started in about 2008 when the body corporate dispensed with the services of the body corporate managers.
- Marks agreed that before he left his employment in 2011, there were outstanding invoices that the body corporate refused to pay. Prior to the appellant taking over as chairperson, the body corporate managers always paid accounts on time. Transmetro was in the habit of paying invoices and presenting them to the body corporate manager for reimbursement. All of the invoices submitted were for legitimate repairs and maintenance to the building. Transmetro expected reimbursement from the body corporate’s sinking fund.
- After the appellant took over as chairperson he refused to pay the accounts. The appellant said he would not pay invoices that were rightly due and payable by Transmetro. Marks believed the body corporate manager stopped paying the accounts because the appellant was involved and they took instructions from the body corporate committee. The body corporate manager’s services were subsequently dispensed with by the committee.
- In cross-examination, Marks said whilst he initially liked the appellant, relations deteriorated between them over time. Marks had become aware of a group known as the Tower Mill Owners Action Group which began acting on behalf of owners upset that Transmetro had slashed the rent by 30 per cent in 2002. Transmetro held 30 year leases with the owners. The first leg of the leases was an initial 10 year period in which rent was guaranteed by Transmetro. Marks did not know whether the slashing of the rents breached the leases with owners.
- In 2004, there were problems between Transmetro and the body corporate with respect to payment for repairs and maintenance. Marks had a vague recollection that the appellant initiated legal action in 2004 against Transmetro on behalf of a group of owners to recover rent arrears. During this period the appellant tried to physically take possession of units on the basis of a breach of their leases. Marks was not aware whether Transmetro was ordered to pay rent arrears in the order of $350,000.
- Marks agreed that Transmetro presented a rent determination to owners in June 2004 for the next five year period. At that time, Transmetro was operating a restaurant on the top floor seven days a week. Due to low patronage, the hours were reduced prior to its closure in 2007 or 2008, such that it was only operating for breakfast. Marks accepted that occupancy of the complex was low. The top floor restaurant was closed by Transmetro when Burnitt opened his tavern on the ground floor in 2006.
- Marks became manager shortly after Burnitt started building work in 2005. As manager, Marks was familiar with the common property areas of the complex. Marks accepted it was very possible he had seen the plans proposed by Burnitt. Marks understood head office had approved the development by Burnitt. He also understood the plans had been approved and as such he did not prevent Burnitt from building in common property areas. He knew common property areas were owned by all individual owners.
- Marks became aware that owners of the complex were concerned about the arrangements between Transmetro and Burnitt in relation to the operation of the tavern out of lots owned by Burnitt but leased to Transmetro. During this period, the appellant regularly attended the motel and took photos and made recordings. Marks attended the annual general meetings of the body corporate for the Tower Mill representing Transmetro’s voting rights. Marks followed instructions from head office in Sydney as to how to vote. At these meetings, there was interest from the appellant in relation to what was happening at the Tower Mill. The appellant wanted Transmetro’s leases terminated and for Transmetro to be replaced as the letting agent by somebody else.
- Marks agreed the plans proposed by Burnitt identified common property areas on the ground floor in which Burnitt constructed his tavern. Under those plans, the hall on the right side of the central core was removed and a bar constructed in that area. The front wall had also been moved forward. The existing reception area and a car ramp also were removed in those plans. These areas were common property. The toilets were also relocated to suit Burnitt.
- Marks also accepted that at the front of the hotel there were two carparks that were common property. Transmetro had no obligation to maintain those carpark spaces. Transmetro had exclusive use of one of those spaces. Transmetro also had exclusive use of lots on the ground floor pursuant to a lease with the owners of that lot. One of those lots included the lot in which the bar area was constructed by Burnitt. Marks was aware that Supreme Court proceedings were instituted and a surveyor was engaged to survey the common areas. Marks was aware the body corporate was claiming compensation for those encroachments.
- The prosecution also placed into evidence recordings of evidence given by the appellant at an earlier trial. In that evidence, the appellant accepted he was responsible for the transfer of the sums of money in the 42 transactions the subject of the charge into accounts under his control. The money obtained from the 42 transactions was used for personal expenses. He did this because if he did not carry on Burnitt would win. There was no-one else who would fight. He needed time and money to continue the fight. As part of his obligations to owners he had to survive and “I had to live and I had to fight.” He did not accept he was fighting for his own rights and agenda. He believed as chairman he was entitled to use the body corporate’s money. He had approval from the committee to invest the body corporate money to get the best return for owners. The best return was to make Burnitt pay.
- The appellant accepted that following termination of the body corporate managers he sent out a flying minute resolving that he set up bank accounts to replace the body corporate managers’ accounts for receipt of levy payments and the payment of outgoings and expenses. The motion recorded that the accounts were to be maintained and invested by the chairman so as to maximise returns for owners. The document was undated but agreed it was obviously after 30 May 2008. The document was sent to all committee members. Some returned it with a signature. Others agreed verbally. Burnitt never replied and nor did Clem Christie.
- The appellant said he became an owner of lots in the Tower Mill in early 2003 and was immediately engaged in the Tower Mill Owners Action Group which had been formed by owners to recover rent arrears brought about by Transmetro slashing rents by 30 per cent in 2002. The group also wanted to replace Transmetro as the operator of the motel business. This group was successful in recovering rent arrears but failed in replacing Transmetro. The appellant agreed that after he was elected to the committee he commenced to reject requests for payment by Transmetro for repairs and maintenance. His view was that repairs and maintenance were to be paid by Transmetro who should not be reimbursed by the body corporate.
- The appellant became intricately involved in the affairs of the body corporate, including commencing litigation on its behalf in relation to the encroachment onto common area property by Burnitt’s redevelopment of the ground floor. The dispute reached a point where there was a discussion about compensation for that common property. The body corporate selected a valuer and surveyor. Burnitt obtained his own valuation. Burnitt made a number of offers which were not accepted by the body corporate.
- The appellant and his company became respondents in Supreme Court proceedings instituted by Burnitt in relation to the encroachment. His company was representing owners of the complex. On 16 April 2009, the annual general meeting for the body corporate was held as well as an extraordinary general meeting. Motions were put for the body corporate to continue to defend Supreme Court proceedings brought by Burnitt; for the payment of a special levy to fund those proceedings and for permission to execute a costs agreement in relation to those proceedings. Those resolutions were not passed as they were voted down by Burnitt and Transmetro. By that date, Transmetro owned about 30 lots. When combined with Burnitt’s vote they carried the day.
- The appellant said by this stage he had become Burnitt’s enemy. Burnitt was not offering compensation for use of the common area and owners of the units were cranky. As a result of the motions failing, the solicitors had to withdraw from the legal proceedings. The body corporate also had to withdraw as a respondent to those proceedings. The appellant and his company remained active respondents. The appellant negotiated to purchase the business of Georgeson Solicitors. He believed he could get legal representation for the Supreme Court proceeding if he set up an incorporated legal practice.
- The appellant accepted he was on a mission. He accepted he was transferring the money into bank accounts belonging to himself. The appellant had living expenses and was waging war full time. He denied he took the money for his own gain. He used the body corporate money as an investment, to further the interests of the body corporate. There would be a huge pay-off for the body corporate when Burnitt was forced to pay what he should have paid in the first place.
- The appellant agreed that money transferred by him into his own account did not remain in the account for long. Many of the payments were used for his own personal day-to-day expenses. It was likely he used some of those funds in order to purchase a unit at St Lucia. That purchase benefited the members of the body corporate as otherwise he would have had to live under a bridge whilst fighting Burnitt. In taking the money he was carrying on the good fight on behalf of lot owners. The authority he had was to invest money for the best return. The pay-off was 3 or 4 million bucks off Peter Burnitt who had transferred common property for nothing.
- The appellant accepted he told none of the lot owners he was putting their money into his own bank accounts. Those people trusted him. He had previously successfully taken Transmetro to Court in 2004. He agreed there were no body corporate meetings held after the annual general meeting on 1 August 2008 until the appointment of an administrator in 2010. He also agreed no flying minutes were sent out by him in respect of any of the 42 transactions the subject of the charge. He denied he did not send out flying minutes in order to keep taking the money secretly. It did not cross his mind because he was authorised by the committee. He was not trying to hide anything. He signed cheques.
- The appellant agreed he did not provide copies of his bank statements to the body corporate and that he had sole access to the body corporate accounts during this period. He accepted that no-one, apart from himself, knew the state of the body corporate’s finances after 1 August 2008. He was the only person who knew money was going from the body corporate’s accounts into his own accounts. No committee member gave him approval to put body corporate funds into his own account. They did give him approval to invest the funds for the best return.
- The appellant accepted that in February 2009 he called an extraordinary general meeting for the purposes of obtaining the approval of unit owners to expend body corporate money on legal expenses in the proceeding against Burnitt. That motion was lost as Burnitt and Transmetro voted it down. As a consequence, the body corporate was left without legal representation. The body corporate remained a respondent but indicated it would abide the order of the Court. That left the appellant to fight on. The appellant did not at any time go back to the body corporate with another motion for the expenditure of monies to appoint other lawyers.
- The appellant agreed that prior to the 2009 annual general meeting he put back $70,000 into the body corporate accounts. He denied that was so he would be able to show lot owners at the AGM that there was still money if they wished to peruse the accounts. He could not explain why he had moved about $400,000 from the body corporate account into his own account prior to the body corporate’s decision not to authorise the expenditure of funds in the legal action against Burnitt. Any monies he had been receiving was being invested and when the solicitors dropped out, the fight became much tougher. He denied it was because he wanted to purchase a unit in 2008. The appellant had to live somewhere. The expectation was that Burnitt was going to pay promptly.
- The appellant denied the reason he declared Burnitt’s votes invalid for the 2009 AGM and he did not hold an annual general meeting in 2010 was because he wanted to remain in the position of chair with sole access to the body corporate accounts. He did not hold an annual general meeting in 2010 because he was caring for his frail mother. He expected an administrator would be appointed to the body corporate. It did not need an annual general meeting.
- The appellant accepted he invested the body corporate’s money in his own name. The appellant accepted he did not put any procedures in place to determine how much of the body corporate money he was spending on various things. The purchase of the unit at St Lucia was a good investment for the body corporate because the body corporate would be receiving a lot of money, not only from Burnitt. The purchase of the unit was going to be a big help to the appellant. He accepted the unit was a river front unit. He could have purchased a cheaper unit but it was good purchase that made good sense. He rejected a suggestion he should “have gone and lived in some hovel or perhaps more cheaply than a hovel, under a bridge, and waged war with Peter Burnitt”.
- The appellant also said he was entitled to funds as he was forced into doing the work the former body corporate managers had undertaken for a fee. He did not seek any permission or authorisation from the body corporate members for the payment of such a fee. He did not see why there was a financial difference. Money was previously going to the body corporate managers. He was now doing the work of the body corporate managers. The appellant accepted he never disclosed anything to the body corporate but said it was all out in the open.
- The appellant submits it was unfair for him to be required to represent himself at his trial. He had been left without legal representation as a consequence of poor representation in an earlier trial. He understood he had no choice. He was told there would be no more adjournments and the trial was to proceed on the specified date. The unfairness was compounded by the lack of resources in custody and his stress levels throughout the trial. He did not understand the process and did not receive appropriate assistance.
- The appellant further submits that the trial was conducted unfairly. It was based on a complaint made by Burnitt without authority and in reliance upon a confidential forensic report owned by the body corporate which Burnitt had no authority to give to police. Burnitt also showed considerable malice and hatred towards the appellant and lied constantly throughout the trial. The report itself was not produced in evidence at the trial.
- Finally, the appellant submits the trial Judge made a number of errors in the summing up. Those errors included misrepresenting the evidence in relation to votes cast by the appellant and in respect of the consequence of alleged failures to provide financial accounts during the course of the appellant’s chairmanship of the body corporate.
- The respondent submits there was no unfairness in the conduct of the trial. The appellant chose to dismiss his previous legal representatives. He chose to be self-represented, despite being afforded the benefit of legal representation by a number of firms of solicitors. The Court accommodated the appellant’s self-representation by delisting an earlier trial date and subsequently vacating the trial date of 12 February 2016 for a trial date of 6 June 2016. That accommodation provided the appellant with ample time to prepare for the upcoming trial.
- The respondent further submits there is no substance in the contention the trial was unfair in being based on a complaint by a person other than the body corporate and reliance upon the forensic report which was not ultimately tendered in evidence at trial. The complainant, Burnitt, was called to give evidence and subject to a lengthy and sustained cross-examination. The police officer also gave evidence as to the context in which the complaint was taken from Burnitt. Whilst the forensic report was not tendered in evidence, the author of the report was called as a witness to give evidence as to the contents of that report.
- Finally, the respondent submits there is no substance in the assertion that the trial Judge misdirected the jury as to relevant pieces of evidence. The effect of the evidence was properly summarised for the benefit of the jury. The appellant’s evidence at the previous trial was led as part of the prosecution case. The appellant received the benefit of his version being placed before the jury, without being required to give or call evidence.
- The appellant submits the sentence imposed was manifestly excessive having regard to his age, lack of relevant past criminal history and the circumstances in which he used the body corporate’s funds. A consideration of sentences imposed in other cases supports a conclusion that the appellant should have been sentenced to no more than two years imprisonment, with immediate release on parole.
- The respondent submits the sentence imposed was not manifestly excessive. There was little in the appellant’s favour by way of mitigation. The sentencing Judge noted his lack of relevant prior criminal history but also properly noticed his lack of remorse and lack of insight. The admissions made, whilst significant, did not substantially reduce the length of the trial having regard to the way in which the appellant conducted his defence. In any event, the sentencing Judge expressly observed that the absence of co-operation did not result in an increase in the appellant’s sentence.
- The respondent submits a consideration of relevant authority supports a conclusion that a sentence of six years imprisonment was not manifestly excessive. Further, there was no basis to afford additional leniency by way of the fixing an earlier parole eligibility date. The failure to set such a date did not make the sentence imposed manifestly excessive.
- An accused person does not have a right to representation in a criminal trial. However, the availability of legal representation is an important aspect of a fairly conducted criminal trial. As Mason CJ and McHugh J observed in Dietrich v The Queen:
“For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained.”
Accordingly, a lack of legal representation may, in the circumstances of a particular case, result in an accused person not receiving a fair trial.
- There is no basis to conclude that the lack of legal representation resulted in the appellant not receiving a fair trial. The appellant was afforded considerable latitude, both in the timing and conduct of the trial, to account for his lack of legal representation. The trial itself was adjourned on two separate occasions, affording the appellant well over six months to prepare his defence of the proceeding.
- Further, the appellant was given time in the course of the trial, and afforded a liberal approach to his questioning of witnesses, notwithstanding the objection of the prosecution. His evidence, given at the previous trial, was admitted as part of the prosecution case. The appellant did not lose the benefit of not having given or called evidence, notwithstanding that in the course of the trial the appellant tendered documents. The prosecutor, properly, waived a right of address.
- A consideration of those matters together with a reading of the transcript of the trial supports a conclusion that the appellant persistently and forcefully advanced his defence of the charge. There is no basis to conclude the appellant was denied a fair trial as a consequence of his lack of legal representation.
- There is also no basis to conclude the conduct of the trial was unfair. Burnitt was an owner of units in the body corporate. The body corporate had provided a copy of the forensic report prepared by Deloitte to all unit holders. The fact the report had been prepared for consideration by the committee of the body corporate did not render its receipt by police unlawful or improper.
- Further, the taking of over $550,000 from the body corporate by the appellant for his own use was a matter in respect of which Burnitt, as a lot owner, had a legitimate interest, supporting a complaint to police. That complaint was properly accepted, having regard to a police officer’s responsibilities and obligations in relation to the investigation of alleged criminal offences.
- There also was no unfairness in the conduct of the trial in the fact that the report itself was not tendered in evidence. The author of the report was called as a witness. He gave evidence as to its content. The conclusions of the report were not in dispute. The appellant had admitted he made 42 unauthorised withdrawals of body corporate monies into his own accounts, which funds he used for his own purposes.
- Those admissions were not put in dispute in any way in the course of the trial. The issue at trial is whether the appellant honestly believed he was entitled to use those funds in accordance with the asserted authority he had from the committee of the body corporate. A consideration of that issue by the jury was not in any way affected by a failure to tender the forensic report.
- The conduct of the trial by the trial Judge was also not unfair. Contrary to the appellant’s assertions, he was not unfairly prevented from pursuing his questioning of witnesses. Whether a jury accepted his assertions that witnesses such as Burnitt gave false evidence maliciously, so as to harm the appellant, was ultimately a question for the jury having heard and seen that witness give evidence.
- The trial Judge also fairly and appropriately placed before the jury the appellant’s contentions. The jury were properly directed as to the relevant legal issues. There was no mis-statement of the evidence. The effect of motions passed by the committee or the subject of votes at meetings of unit holders was correctly and fairly summarised by the trial Judge in the summing up. The consequence of motions in relation to the financial affairs of the body corporate not being audited were correctly stated by the trial Judge. The motion as passed was that the statement of accounts not be audited.
- The reference to the appellant’s rejection of the motions placed before unit holders as to acceptance of Burnitt’s offer to pay $450,000 was also correct. In evidence at his first trial, the appellant said he nominated to be the body corporate’s chair or on its committee at the annual general meeting held in 2012. That evidence was consistent with an entitlement as either holder or nominee of a lot in the complex at that time. Further, Burnitt gave evidence that the motion to accept his proposal to pay $450,000 for a transfer of the common property failed to pass in 2012 because the appellant voted against it. Burnitt gave evidence that the appellant “had a carpark and a unit at the time”.
- Finally the appellant confirmed to the jury in his final address that he was involved in the rejection of that vote. The appellant referred to Burnitt as attempting “to make a deal that required a vote without dissent, and because of my input he was unsuccessful.” The appellant further said the vote “didn’t get up because I agitated for it not to get up because it was a shocking deal and I conveyed that to – to one of these two people. So the deal didn’t get up.”
- A consideration of that evidence supported the trial Judge’s summation that “there was a proposal put to the body corporate that the matter be resolved on the basis of [Burnitt] paying $450,000 but that vote was rejected and one of the reasons of course was that, the evidence established that [the appellant] was still a lot owner and he voted against it. It needed a unanimous vote.” To the extent that the reference to the appellant still being a lot owner incorrectly conveyed the legal position at that time, there is no basis to conclude any such error deprived the appellant of a fair chance of acquittal.
- The appellant’s stated ground of appeal against conviction, namely, that the verdict was unsafe and unsatisfactory is properly to be viewed as a contention that the verdict of the jury was unreasonable in that it was not open to the jury, on the evidence, to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence.
- In determining whether a verdict is unreasonable or cannot be supported having regard to the evidence, the question is not whether there is, as a matter of law, evidence to support the verdict. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.
- In undertaking that task, due regard must be given to the jury’s position as the constitutional tribunal for deciding issues of fact and to the principle that setting aside a jury’s verdict on such a ground is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury having seen or heard the witnesses at trial.
- Having considered the evidence as a whole, there is no basis to conclude that the jury’s verdict of guilty was unreasonable. The appellant expressly admitted that he had engaged in 42 unauthorised transactions, resulting in the transfer of over $550,000 of body corporate monies to accounts held in his own name or in the name of entities associated with the appellant. The appellant also admitted using those funds for his own personal use, including the purchase of a unit on the river front and the payment of living expenses.
- Further, there was ample evidence each transaction had occurred without the knowledge and consent of the body corporate committee or of its members. Apart from the appellant’s admissions and earlier evidence, the evidence of Newton, Tapp and Browning supported a conclusion that each of those transactions was an unauthorised transaction resulting in the taking of body corporate funds which were used by the appellant for his own purposes.
- Having regard to that evidence, it was open to the jury to exclude that the use of these funds was for the benefit of the body corporate and in accordance with some authority given to the appellant to invest the funds for the benefit of the body corporate. The jury was entitled to find that the prosecution had excluded beyond reasonable doubt that the appellant honestly believed he had a right to use those funds in his pursuit of Burnitt as it would benefit the body corporate in the long term, and that he did so without an intention to defraud.
- In rejecting that contention, the jury had before it detailed evidence which was supportive of a long term relationship of distrust between the appellant and Burnitt. It was for the jury to determine whether the circumstances of that long term relationship supported a conclusion that Burnitt was an untruthful witness with a motivation to lie in respect of the appellant. Even if the jury reached the conclusion that Burnitt was such a witness, it did not detract from a finding that the prosecution had established beyond reasonable doubt that the appellant had acted dishonestly in taking the body corporate funds.
- Whilst the appellant was elderly, had no relevant prior criminal history and had medical conditions, he had engaged in a sustained course of fraudulent conduct over an extended period of time which resulted in the loss of over $550,000 from the body corporate. That fraudulent conduct had occurred when the appellant was in a position of trust, being chairperson and the person with authority over the bank account of the body corporate.
- Whilst the appellant co-operated by making extensive admissions at trial, the consequence of that co-operation was diminished by his conduct of the trial. In the circumstances, the trial Judge properly noted a lack of remorse and lack of insight into the nature of his offending behaviour.
- Such sustained fraudulent conduct whilst in a position of trust requires the imposition of a significant period of imprisonment, consistent with the need for deterrence and denunciation. A review of the comparable decisions referred to at sentence and on appeal supports a conclusion that a sentence of six years imprisonment was well within a proper exercise of the sentencing discretion. As was observed by Chesterman JA in R v Shiels:
“ The factors most relevant to the exercise of the sentencing discretion in these cases are the amount of money taken; the length of time over which the offending occurred; the number of offences in the period; and remorse or lack thereof as indicated by whether the sentence was imposed on a plea or after trial and as indicating the likelihood of re-offending. …
 It is not enough for an applicant to point to similar cases in which a lesser penalty was imposed. If there are cases in which the same or a more severe penalty was imposed the court can conclude that the penalty was within the appropriate range.”
- The comparable decisions relied upon by the appellant do not support a contrary conclusion. In Barwood the offender’s “brazen, unscrupulous and persistent fraudulent conduct” had not resulted in anyone being out of pocket and any funding had not been wasted, being for the benefit of the university and general public. That was a significant distinguishing feature, supporting the significantly lesser head sentence of two years imprisonment for fraud. Similarly, whilst Meehan had engaged in serious fraudulent conduct, it had not resulted in loss to any client, a significant distinguishing feature to the present case.
- A consideration of the evidence as a whole amply supports a conclusion that it was open to the jury to find the appellant guilty of the offence, notwithstanding his assertions of an honest claim of right to the funds.
- The appellant has not established any ground upon which to set aside the jury’s verdict.
- A sentence of six years imprisonment was well within a proper exercise of the sentencing discretion in the present case. Further, the lack of insight and remorse justified, in the proper exercise of the Judge’s sentencing discretion, not fixing an earlier parole eligibility date.
- The sentence imposed was not manifestly excessive.
- I would order:
- The appeal against conviction be dismissed.
- The application for leave to appeal against sentence be refused.
 AB 371/15.
 AB 711/45.
 AB 718/30.
 AB 801/15.
 AB 785/20.
 AB 1319.
 AB 872/45.
 AB 842/5.
 AB 858/45.
 AB 870/35.
 AB 864/20.
 AB 922/25.
 AB 2380/10.
 AB 2376/30
 AB 2396/20.
 AB 2397/5.
 AB 2415/35.
 AB 2416/45.
 AB 2430/25.
 AB 2444/40.
 AB 2449/5.
 AB 2453/1.
 R v East  QCA 144 at .
 (1992) 177 CLR 292 at 311.
 Dietrich v The Queen (1992) 177 CLR 292 at 311; 335-336.
 Addresses, page 12/30.
 Addresses, page 13/1.
 AB 1114/40.
 R v Clapham  QCA 99 at .
 R v Baden-Clay (2016) 258 CLR 308;  HCA 35.
 R v Wheeler & Sorrensen  QCA 223; R v Taylor  QCA 574; R v Sheppard  1 Qd R 504; R v Tindale  QCA 24.
 R v Spalding  QCA 538; R v Lim  QCA 172; R v Cox  QCA 262; R v Shiels  QCA 115; R v Martin  QCA 257.
  QCA 115 at 40-41.
 R v Barwood, unreported, Martin SC DCJ, DC No 2086 of 2016, 25 October 2016; R v Meehan, unreported, Atkinson J, SC No 873 of 2017, 14 July 2017.
- Published Case Name:
R v Davy
- Shortened Case Name:
R v Davy
 QCA 312
Fraser JA, McMurdo JA, Boddice J
19 Dec 2017
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC412/14 (No Citation)||22 Jun 2016||Date of Conviction (Long SC DCJ)|
|Appeal Determined (QCA)|| QCA 312||19 Dec 2017||-|