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R v Orchard


[2018] QCA 58





R v Orchard [2018] QCA 58


ORCHARD, Elizabeth Margaret


CA No 136 of 2017

DC No 171 of 2016


Court of Appeal


Appeal against Conviction


District Court at Brisbane – Date of Conviction: 5 June 2017 (Devereaux SC DCJ)


29 March 2018




27 November 2017


Sofronoff P and Gotterson JA and Henry J


Appeal dismissed.


CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION OR NON-DIRECTION – PARTICULAR CASES – where the appellant was convicted of fraud pursuant to s 408C(1)(b) of the Criminal Code (Qld) with a circumstance of aggravation – where the appellant argued the directions were deficient because they failed to refer to the need for the prosecution to prove beyond reasonable doubt that the accused acted with a subjective dishonest intent – where the respondent argued the directions were not deficient because a subjective dishonest intent was not an element of dishonesty in the offence charged – whether the trial judge’s directions on dishonesty were inadequate

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – MENS REA – PARTICULAR OFFENCES – FRAUD, IMPOSITIONS AND FALSE STATEMENTS – where the appellant was convicted of fraud pursuant to s 408(1)(b) of the Criminal Code (Qld) – where the appellant argued the prosecution was required to prove beyond reasonable doubt that the accused acted with a subjective dishonest intent – whether subjective dishonest intent is an element of dishonesty in a s 408C offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION OR NON-DIRECTION – GENERAL PRINCIPLES – where the appellant argued the jury should have been instructed not to speculate about what witnesses who were not called might have said in testimony – where general directions were given not to speculate and to determine the case on the testimony and exhibits only – where cautions against speculation were given by counsel – whether the directions were sufficient to guard against speculation by the jury about the evidence of witnesses that were not called

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant argued its trial counsel had elicited highly prejudicial inadmissible evidence from the complainant in the process of a cross-examination that was devoid of forensic purpose – where the appellant argued its trial counsel had cross-examined witnesses in an objectionable manner, leading to frequent interventions by the trial judge that were damaging to its prospects at trial – whether defence counsel’s conduct deprived the appellant of a chance of acquittal that was fairly open

Criminal Code (Qld), s 408C(1)

Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, followed

Ivey v Genting Casinos (UK) Ltd [2017] 3 WLR 1212; [2017] UKSC 67, considered

R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56; [2015] QCA 155, approved

R v G [1997] 1 Qd R 584; [1995] QCA 517, considered

R v Ghosh [1982] QB 1053; [1982] EWCA Crim 2, not applied

R v Perrin [2017] QCA 194, explained

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, followed


P Morreau for the appellant

D Balic for the respondent


Broadbeach Law Group for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with Gotterson JA and the order his Honour proposes.
  2. GOTTERSON JA:  At a trial over six days in the District Court at Brisbane, the appellant, Elizabeth Margaret Orchard, was found guilty on 5 June 2017 of an offence against s 408C(1)(b) of the Criminal Code (Qld).  The count on which the appellant had been indicted alleged that on 19 October 2010 at Logan Central, she dishonestly obtained a sum of money from the complainant, Lynette Margaret Wylie.  It also alleged a circumstance of aggravation, namely, that the sum of money was of a value of $100,000.[1]
  3. The appellant was sentenced on 21 June 2017 to imprisonment for two years.  A parole release date on 21 February 2018 was fixed.
  4. On 23 June 2017, the appellant filed a notice of appeal against the conviction.[2]

Circumstances of the alleged offending

  1. The complainant testified that on 28 July 2010, she was approached by a telemarketer from the appellant’s employer, Bank on Property.  The telemarketer canvassed her interest in investing in house and land packages in Tasmania.  Although the complainant said that she was not interested, she did provide her email address to the telemarketer and was emailed some information about the proposal.[3]  In exchange, the complainant forwarded some information about cosmetic products she marketed.[4]
  2. Next, the appellant contacted the complainant to book in for a facial treatment at the complainant’s home.[5]  The appellant visited the home on 8 September 2010.  After the facial treatment, they had a discussion.  The appellant told the complainant she was a financial planner and sold house and land packages.  She said she wished to help out the complainant.[6]  The complainant’s finances were discussed.  The appellant suggested that she had sufficient equity in her home to raise a loan to invest in a house and land package in Tasmania.  The appellant persisted in the idea that the complainant should make such an investment.[7]  The complainant was given a brochure about it.[8]
  3. The two met on subsequent occasions.  Ultimately, on 29 September 2010, the appellant presented the complainant with a standard form contract for the purchase by the latter of Lot 34 (28) Collins Street, Brighton, Tasmania.[9]  According to the complainant, the appellant “kept pushing” her to sign the contract without explaining it to her.[10]
  4. As to the contract, the named vendor was Bradley Keith Silver, the appellant’s employer, whom the complainant did not know.  The stated sale price was $295,000; no deposit was nominated; and a condition precedent for finance in the amount $236,000 was included.  According to the complainant, the initials “BS” were handwritten on pages of the contract.[11]  She signed it but did not keep a copy.[12]  Following the signing of the contract, the appellant took the complainant to see Mark Tomlinson, an accountant, and David St Pierre, a Westpac bank manager, on 6 and 11 October 2010 respectively, about organising her financial details so that an application for finance could be made to fund the purchase.[13]
  5. The complainant testified that, to the appellant’s knowledge, she had $140,000 available in her offset home loan account.  The appellant proposed that the complainant lend her $100,000 and in return, the appellant would pay the complainant interest at the rate of 15 per cent per annum until the house in Tasmania was built, at which point the $100,000 would be repaid.[14]  Some three days later, the proposal was changed by the appellant to one in which the $100,000 would be outlaid to purchase a Refund Home Loan franchise in a joint venture with the appellant.[15]
  6. According to the complainant, the appellant “virtually talked [her] in to getting the $100,000 from [her] bank” and giving it to the appellant.[16]  The complainant purchased a bank cheque for $100,000 payable to the appellant on 18 October 2010.[17]
  7. On the following day, the appellant visited the complainant’s home.  The appellant printed out a loan agreement document from a USB stick she had with her.  The document is Exhibit 7.[18]  It is apparent that it was not prepared with professional involvement.[19]
  8. The document was headed “Heads of Agreement for Person to Person Loan”.  The named parties to it were the complainant and the appellant.  The document spoke of the acquisition of a Refund Home Loan partner franchise (clause 1).  It nominated a loan amount of $115,000 that the complainant was to lend to the appellant (clause 4).  The complainant was to receive a “dividend” of 15 per cent per annum for the first three years (clause 3).  The loan amount was to be advanced by a bank cheque for $100,000 payable to the appellant and the retention of $15,000 in the complainant’s bank account.  The interest for the first year (actually $17,250, being 15 per cent of $115,000, but inaccurately stated in the document to be $17,500) was payable in advance from the retained $15,000 with the balance “$2,500” to be paid by the appellant to the complainant within seven days (clause 4).  The document stated that the appellant “shall have full discretion as to how Loan funds are dispersed in order to achieve mutually beneficial objectives and provide ongoing employment opportunities for both parties.”
  9. The document was discussed by the complainant and the appellant and then signed by them.  The complainant handed the bank cheque to the appellant.[20]  The balance interest payable within seven days was not paid to the complainant.[21]
  10. The complainant accepted in cross-examination that the appellant told her on 20 October 2010 that the franchise was not going to work.[22]  The $100,000 was never applied to the venture: the complainant obtained no benefit from the monies advanced.  Some $2,000 was paid to her by a cheque drawn on the appellant’s son’s account which was given to the complainant by the appellant on 3 December 2010.[23]  The purpose of the payment was unexplained by the appellant at the time.[24]
  11. On 25 October 2010, the complainant received a visit from Mr St Pierre.  He gave her a Westpac Low Doc offer document for a loan of $85,000 which she signed.[25]
  12. Bank records tendered in the prosecution case showed that the appellant deposited the bank cheque to her Suncorp bank account on 20 October 2010.  Immediately prior to the deposit, that account had a credit balance of $29.22.  The following transfers of funds were made from the account:






The appellant’s son



Safety in the Market



No Diggity Property Solutions



Staunch Management

None of these transferees was associated with the complainant or her interests.  Numerous smaller withdrawals also occured.  The credit balance in the account had reduced to less than $1,000 by 15 December 2010.[26]

  1. The appellant’s son was also employed by Mr Silver.  At the time when the $60,000 was transferred to his Commonwealth Bank account, it was in debit to a small amount.  Shortly after the deposit, the son made withdrawals of $20,060.50 and $23,136.75 to pay creditors of Mr Silver’s businesses, namely, a conveyancing solicitor and Bunnings, both in Tasmania.[27]  The son, who gave evidence in the defence case, testified that the $60,000 was to be used only at Mr Silver’s direction.[28]
  2. The prosecution case was a circumstantial one in which the jury was invited to draw an inference of dishonesty on the appellant’s part in obtaining the $100,000 from the complainant.  The inference arose from the contrast between the use to which the $100,000 was to be put according to the terms of the Heads of Agreement and the uses to which it was in fact put.

The defence case

  1. The appellant testified at her trial.  Her defence was that the purpose of the payment of $100,000 to her was not accurately reflected in the Heads of Agreement document.  She said that the joint intention of her and the complainant was that it was to be a deposit for the complainant’s purchase from Mr Silver.  She herself signed the Heads of Agreement document on the instructions of Mr Silver and Mr St Pierre.  According to the appellant, it was the latter who requested her to deposit the $100,000 in to her own bank account because of difficulties that Mr Silver’s business, Bank on Property, was having in accessing funds in its own bank accounts.[29]
  2. The appellant said that the Heads of Agreement document was linked to a proposal suggested by Mr Silver that part of the $100,000 deposit, some $25,000, be devoted to the purchase of a home loan franchise to earn some interest pending settlement of the purchase.  She discussed some of this background with the complainant.  All the funds were dispersed as directed by Mr Silver and his employee, Denis Dwan.[30]
  3. It is noteworthy that in cross-examination, the complainant denied suggestions that she gave the bank cheque to the appellant for the purchase of property in Tasmania.[31]

Grounds of appeal

  1. The notice of appeal was amended by leave given at the hearing of the appeal to accommodate the following grounds:
    1. The trial judge’s directions on dishonesty were inadequate.
    2. The trial judge’s directions failed to identify the real issues in the case, relate them to the relevant law and assist the jury with how to approach the facts.
    3. The trial judge failed to give a warning against speculation about the evidence of witnesses not called to give evidence.
    4. The conduct of the trial by the appellant’s trial counsel led to a miscarriage of justice in that he:
      1. elicited highly prejudicial inadmissible evidence from the complainant in a process of cross-examination that was devoid of forensic purpose, and then failed to seek any direction to the jury not to act upon that evidence;
      2. failed to clearly articulate to the jury the appellant’s case as to her state of mind; and
      3. cross-examined Crown witnesses in an objectionable manner, leading to frequent interventions by the trial judge in front of the jury, the appearance of which was damaging to the appellant’s prospects at trial.

It is convenient to consider these grounds separately.

Ground 1

  1. Within the context of directing the jury with respect to dishonesty, the learned trial judge attempted to reduce each side’s case “to a nutshell” in the following way:[32]

“… It seems to me the issues are what was said between the two women, the complainant and the defendant, and whether the accused obtained the money dishonestly.  And the prosecution case seems to be that there was an agreed plan, that there was evidence of discussions before the heads of agreement was signed, and then the document itself, and that the fund was put to a different purpose to that set out in the documents and the discussions.  And so the accused obtained the money dishonestly.

The defence case, as I follow it, is that the defendant believed the complainant knew the heads of agreement was merely a mechanism.  And the word used was a “ruse” for a purpose of this entity Bank On Property.  And so there was no deception.  And that there is no evidence that the accused did not plan to allocate the money according to the – according to what was understood.  And so you would at least have a reasonable doubt that the defendant dishonestly obtained the money …”[33]

  1. As to the element of  dishonesty in a s 408C(1)(b) offence, his Honour directed:

“… Second, that the action of the defendant must have been done dishonestly.  And in this case it is the obtaining.  To prove that the defendant acted dishonestly, the prosecution must prove that what the defendant did was dishonest by the standards of ordinary honest people.  So that is the standard by which you have to judge whether what the accused person did was dishonest.

… But before you could convict, you have to be satisfied of all of the ingredients beyond reasonable doubt, that the defendant obtained – and it is pleaded to be money, and she obtained it, and that it was more – it was $100,000, and that she obtained it dishonestly.  The real contest seems to be whether she obtained it dishonestly, because there is no real dispute about the fact that the complainant drew a cheque for $100,000 in the defendant’s name and the defendant obtained the cheque.

So I just will read again that to prove that the defendant acted dishonestly, the prosecution must prove that what she did was dishonest by the standards of ordinary honest people.  Now, just one thing about that, in case this arises.  The standard you are applying is that sort of community standard, what ordinary honest people would think – or find.  It does not mean you each as individuals, how you would judge.  All right? Because we all might have different ideas about honesty.  Your job as a jury is to judge what you find according to the standards of honest ordinary people.”

These directions accorded with the Bench Book directions on dishonesty.

  1. Appellant’s submissions: The appellant contends that the directions were deficient in failing to refer to subjective knowledge or intention on the appellant’s part.[34]  In written and oral submissions, counsel for the appellant submitted that the onus of proof in any s 408C(1) prosecution obliges the Crown to prove beyond reasonable doubt that the accused acted with a subjective dishonest intent.[35]
  2. In support of this submission, the appellant referred to the recent decision of this Court in R v Perrin,[36] reasons for which were published after the appellant was convicted.  Citing R v Mill,[37] counsel further submitted that the absence of a direction with respect to subjective intent was a deficiency of a kind that warranted a new trial.
  3. Respondent’s submissions: The respondent argued that the directions were not deficient.  A subjective dishonest intent was not an element of dishonesty in the offence charged.  There was no need for the Crown to prove such an intent beyond reasonable doubt.  The respondent submitted that in this respect, the law is as recently stated by this Court in R v Dillon; Ex parte Attorney-General (Qld).[38]
  4. The respondent contended that the appellant had overlooked the circumstance that the passages in Perrin on which reliance was placed were directed to the exclusion of an honest claim of right defence under s 22(2) of the Code.  In the appellant’s case, the jury was not required to consider a defence under that provision.[39]
  5. Discussion: In Dillon, the Attorney-General referred to this Court, for its consideration and opinion, this point of law: whether in order to satisfy the element of dishonesty in a s 408C prosecution, the Crown has to prove not only that what the accused person did was dishonest by the standards of ordinary honest people, but also that the accused person must have realised that what he or she was doing was dishonest by those standards.[40]
  6. The reference arose in circumstances where the Full Court (Queensland) and then this Court, in R v Laurie[41] and R v White[42] respectively, had adopted as the meaning to be given to “dishonestly”, the meaning which had been given to it as a common law concept in a decision of the Court of Appeal of the United Kingdom in R v Ghosh.[43]  In that case, Lord Lane CJ delivering the judgment of the court said:[44]

“In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest.  If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.  In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it.  It will be obvious that the defendant himself knew that he was acting dishonestly.  It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.”

  1. In Dillon, this Court decided that “dishonesty” in s 408C did not incorporate the second limb of the test prescribed in Ghosh.  In so doing, the Court aligned dishonesty in s 408C with the meaning given to “dishonesty” in decisions of the High Court of Australia in Peters v The Queen[45] in the context of offences of conspiracy to defraud the Commonwealth under s 86(1)(e) and s 86A of the Crimes Act 1914 (Cth), and in Macleod v The Queen[46] in the context of the offence of fraudulently taking property for a person’s own use or benefit under s 173 of the Crimes Act 1900 (NSW).
  2. In her reasons for judgment, with which Morrison JA and Dalton J agreed, Margaret McMurdo P said:[47]

“As “dishonestly” in s 408C has its ordinary meaning, this Court must follow the meaning given to “dishonesty” by the High Court in Peters and Macleod.  Despite the previously settled approach in Queensland since 1987, Queensland Courts must now construe the term “dishonestly” in s 408C as requiring the prosecution to prove only that what the accused person did was dishonest by the standards of ordinary honest people.  To secure a conviction, the prosecution need not prove that the accused person must have realised that what he or she was doing was dishonest by those standards.  This construction works harmoniously with the defence provisions of the Criminal Code, particularly s 22(2), so that, where there is evidence that the accused person had an honest belief that he or she was entitled to act as he or she did, to secure a conviction the prosecution must disprove the honest belief beyond reasonable doubt.”

  1. It is noteworthy that this rejection of the second limb enunciated in Ghosh has been matched by the recent rejection of it by the Supreme Court of United Kingdom in Ivey v Genting Casinos (UK) Ltd.[48]  Lord Hughes (for the court) observed:[49]

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts.  The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable: the question is whether it is genuinely held.  When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people.  There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

  1. The decision in Perrin is not in conflict with Dillon as to the meaning of dishonesty.  It was referred to by both Morrison JA[50] and Philippides JA[51] without any reservation as to its correctness.
  2. In Perrin, the offender had been convicted on six counts of forging a document with intent to defraud[52] and three counts of dishonestly gaining a pecuniary benefit for himself.[53]  On appeal, he challenged the decision of the trial judge not to leave a defence under s 22(2) of the Code to the jury.
  3. In the course of discussing Dillon, Morrison JA said, accurately in my view, of a submission for Perrin which sought to rely on the passage from the judgment of the President which I have set out:

“It was contended that the last sentence of the passage set out above supported the proposition that where an honest belief was advanced in a forgery case, a direction had to be given about s 22(2).  I do not accept that contention.  Dillon was not concerned with a s 22(2) defence.  On the Attorney-General’s reference as to s 408C of the Criminal Code, it was concerned only with what was required to prove “dishonesty” for the purposes of s 408C.  It was not concerned with the meaning of “intent to defraud” in s 22(2), nor any aspect of the application of s 22(2).  The last sentence was merely a general statement about s 22(2), not an analysis of how it should be construed, let alone its operation in terms of the directions necessary in a forgery case.”[54]

This statement serves to illustrate the difference in focus between Perrin and the appellant’s case.

  1. During oral argument, it became apparent that the appellant’s proposition as to subjective dishonest intent was based upon observations made by Toohey and Gaudron JJ in Peters.  Those observations were cited with apparent approval by Gleeson CJ, Gummow and Hayne JJ in Macleod[55]and were noted by Morrison JA in Perrin.[56]
  2. Their Honours’ observations were these:[57]

“In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest … If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people.”

  1. To extract from these observations a proposition that subjective dishonest intent is an element of dishonesty is to misunderstand them.  Their Honours were making the point that where knowledge, belief or intent is alleged to be a circumstance in an accused’s dishonesty, then the fact of the knowledge, belief or intent must be identified for the jury.  That fact was one which they must consider with others in determining whether or not the accused’s conduct was dishonest according to the standards of ordinary, decent people.
  2. Here, such knowledge was identified for the jury.  In her closing address, the prosecutor referred to relevant aspects of the appellant’s knowledge.  The appellant knew of the terms of the Heads of Agreement; that they stipulated as the use of the monies to be lent, the acquisition of a Refund Home Loan franchise for her and the complainant’s mutual benefit; and that they did not make any reference to the $100,000 (or $115,000) as a deposit for the purchase of land in Tasmania.  She also knew that the complainant had a bank cheque payable to her for $100,000 and that the complainant was handing it over to her to be used in conformity with the Heads of Agreement.  For the appellant to have also known that the money was to be used otherwise when she obtained the bank cheque rendered the obtaining of it a pretence: to have obtained the bank cheque with that knowledge was dishonest by the standards of an ordinary person.[58]
  3. In directing the jury, the learned trial judge summarised that aspect of the prosecutor’s address as follows:[59]

“Now, Ms Cupina submitted again that a question is whether the obtaining of the $100,000 cheque was dishonest, that you would look at the conduct before the signing of the agreement, the agreement itself, and the post-conduct, how the money was disbursed, in order to reach a conclusion of guilt.  There was dinner on about the 15th of October.  There was discussion about 15 per cent interest on property – on the amount until the house was built, and then a new idea of purchase of a refund partnership.  Then on the 19th of October, Ms Orchard was at Ms Wylie’s house with a USB stick.  They printed the document and signed it.  And Ms Cupina took you to the document and submitted that when you consider the discussion that preceded it and the terms of the document, followed by how the fund was used, you’d be satisfied that the obtaining of it was dishonest by ordinary standards.  That is to say, it’s about what Ms Orchard represented to Ms Wylie.

Now, the submission was made that there’s a lot of evidence about all manner of things in the trial.  You only need to decide beyond reasonable doubt the essential facts which go in proof of the charge.  And you recall Ms Cupina gave some examples of that.  It was submitted that Ms Orchard admitted that the fund went to her son and their lawyers – she used the expression “their lawyers” – and to some degree to personal use.  It wasn’t returned in accordance with the agreement to Ms Wylie.  And she admitted that she did it to keep the so-called company afloat.  And so the argument is taking the money for a company purpose was dishonest, and that it is no defence to say that it was taken for the benefit of the company at direction.  Whether the accused benefited, the submission was, is not a necessary part of the prosecution case.  That is, it’s not a necessary part of the prosecution case that she did personally benefit, the point being that the fund was used inconsistently with the agreed purpose, and from that, you will deduce the – you will judge the dishonesty at the time of obtaining.  And so you were referred to the documents that you have which show the amount of $60,000 going, there’s $5790 and $25,357, going to various places.”

  1. In so directing the jury, the learned trial judge sufficiently identified the relevant aspects of the appellant’s knowledge on which the prosecution case on dishonesty was based.
  2. For these reasons, this ground of appeal has not been established.

Ground 2

  1. It emerged in oral argument that this ground of appeal is founded upon the contention that the law as to dishonesty in s 408C(1) is as the appellant contended in submissions on Ground 1.[60]  The error in that contention substantially undermines this ground.  It was neither necessary nor appropriate for the learned trial judge to have directed the jury on subjective dishonest intent or to address in any detail the array of evidence that the appellant submits was relevant to such an intent.
  2. As noted, his Honour accurately summarised the appellant’s case as put by her trial counsel in so far as it was truly relevant to dishonesty.  Specifically, his Honour referred to critical aspects of it, namely, that she and the complainant agreed to the use of the $100,000 as a deposit for the house and land purchase and that they understood that this was at variance with the use stated in the Heads of Agreement document.  The jury evidently rejected the appellant’s evidence in this regard.

Ground 3

  1. Neither Mr Silver nor Mr St Pierre testified at the appellant’s trial.  There was evidence that the latter had been imprisoned for fraud.  The appellant submits that given her relationship with those two individuals through her employment, there was a real risk that the jury would infer that she ought to have called them in her case.  Consistently with the observations made by Gaudron and Hayne JJ in Dyers v The Queen,[61] the jury should have been instructed not to speculate about what either of them might have said in evidence.[62]
  2. In Dyers, their Honours’ observed:

“If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.”

  1. The respondent submits that the general directions that were given not to speculate[63] and to determine the case on the testimony and exhibits only,[64] were sufficient in the circumstances.  It was not necessary to refer specifically to Mr Silver or Mr St Pierre in this respect.
  2. The concern expressed by the appellant is that the jury might have impermissibly reasoned against the appellant’s interests because Mr Silver and Mr St Pierre were not called by her.  To reason that way would have required the jury to make some speculation about whether or not their evidence would have supported the appellant’s account of events.
  3. In his closing address, defence counsel was critical of the prosecution for not having called Mr Silver or Mr St Pierre in its case.[65]  However, he did tell the jury, correctly, that they could not speculate about evidence that was not given by them.[66]
  4. The prosecutor, in effect, counselled the jury against speculation by arguing that whether their evidence would have supported the appellant’s account of events or not was beside the point.  Evidence to the effect that the appellant acted in accordance with their directions would not have diminished her dishonesty in obtaining the $100,000 from the complainant in the way that the prosecution contended she did.[67]
  5. The cautions against speculation given by counsel and reflected in the directions given by the learned trial judge against speculation as to testimony that persons who were not called as witnesses might have given were, in the circumstances, adequate.  In my view, they were sufficient to guard against reasoning by the jury against the appellant’s interests based on speculation of that kind.
  6. For these reasons, this ground of appeal has not been established.

Ground 4

  1. This ground of appeal identifies three aspects of counsel’s conduct of the defence at trial.  The appellant’s submits that they resulted in an actual substantial miscarriage of justice.
  2. Whether a miscarriage of justice has resulted from defence counsel’s conduct is usually resolved by answering the question whether the conduct deprived the appellant of a chance of acquittal that was fairly open.[68]  In R v G,[69] an example of where that might occur was given, namely, where incompetent or improper conduct of counsel has deprived the accused of the opportunity to present his or her defence.  The three aspects of conduct fall to be considered within that framework.
  3. The first aspect of impugned conduct arises this way.  Defence counsel had called for and been provided with a copy of notes that the complainant said she had made and then, some years later, had relied on when making her statement to police.  The notes were made contemporaneously by the complainant on her computer.  They were in the nature of a diary.  Defence counsel cross-examined the complainant in detail on the notes.
  4. At a certain point in this chronological exercise, defence counsel was about to move to an entry for 14 March 2011.  The following exchange occurred:[70]

“… Is there anything else in between that and where I’m going to take you now is the 14th of March and to Shikha.  Do you see that?  Is there anything in there that I’ve missed out that you wish to raise?---Just on the 9th of March, the vendor’s solicitor saying that Mr Silver doesn’t know anything about the deposit.  It is a matter between you and Mrs Orchard.

Thank you?---I haven’t heard any further about the cancellation of the contract in Tasmania.

… All right.  Anything else you want to raise there?---Well, obviously the – that money wasn’t paid as a deposit on the property, because there’s no record of it.

Well, if you believe Mr Silver?---It’s not written on it – it’s not written on the contract either …”

  1. The appellant submits that the complainant’s evidence of what the solicitor told her was hearsay; but more significantly, it introduced the only evidence in the trial to the effect that Mr Silver did not know about the deposit.  That, it was submitted, contradicted the appellant’s defence that Mr Silver knew of the $100,000 and that he had directed how it was to be disbursed by the appellant.  It was incompetent of defence counsel to have elicited that evidence from the complainant.  There was no forensic advantage to be gained in do so.
  2. The second aspect of conduct of which the appellant complains is a failure to articulate clearly “the defence case resting on the appellant’s evidence as to subjective dishonesty”.[71]  This aspect need be put to one side.  As explained in the consideration of Ground 1, “subjective dishonesty” is not an element of the offence charged.
  3. The third element of conduct is focused upon defence counsel’s “repeated objectionable technique of questioning witnesses, particularly the complainant – by putting multiple propositions within a question or seeking to elicit hearsay evidence – which resulted in frequent interventions by the trial judge in front of the jury”.[72]  This, it was submitted, was damaging to the appellant’s prospects at trial.
  4. The question to be asked here is whether the first and third aspects of defence counsel’s conduct deprived the appellant of a chance of acquittal that was fairly open.  I am quite unpersuaded that it did.  The Crown case as to dishonesty in the obtaining of the bank cheque was a strong one having regard to the terms of the Heads of Agreement document as to use and the subsequent inconsistent dealing with the bank cheque and its proceeds.  The defence relevant to that was that the use to which the $100,000 was to be put was not that stated in the document; rather, it was jointly agreed by her and the complainant that it be used as a deposit for the contract with Mr Silver.  That case was put in cross-examination of the Crown witnesses.  It was supported by the appellant in her testimony.  It was not, however, a defence that depended upon Mr Silver’s state of knowledge at any particular time.
  5. It may be accepted that, at times, defence counsel’s technique of asking questions was rather laboured and that there were some forceful exchanges between him and the learned trial judge.  It remains the fact that, notwithstanding, the appellant’s case as I have summarised it, was comprehensively put.  To my mind, the appellant has quite failed to demonstrate how the third aspect of defence counsel’s conduct had the effect of depriving her of a chance of acquittal that was fairly open.
  6. Accordingly, this ground, too, has not been made out.

Disposition order

  1. As none of the grounds of appeal has succeeded, this appeal must be dismissed.  I would propose the following order:
    1. Appeal dismissed.
  2. HENRY J:  I have read the reasons of Gotterson JA.  I agree with those reasons and the order proposed.


[1]  That is to say, a value of $30,000 or more: see s 408C(2)(d) as then enacted.

[2]  AB734.

[3]  AB72 Tr2-34 ll35-45.

[4]  AB73 Tr2-35 ll1-6.

[5]  AB73 Tr2-35 ll8-18.

[6]  AB74 Tr2-36 ll14-40.

[7]  AB76 Tr2-38 ll13-45.

[8]  Exhibit 5.

[9]  Exhibit 6: AB601-615.

[10]  AB82 Tr2-44 ll44-47.

[11]  AB121 Tr2-83 ll21-35.

[12]  AB83 Tr2-45 ll4-5.

[13]  AB98 Tr2-60 l21 – AB99 Tr2-61 l3.

[14]  AB88 Tr2-50 ll29-35.

[15]  AB94 Tr2-56 ll24-36.

[16]  Ibid ll43-44.

[17]  Ibid l46 – AB95 Tr2-57 l5.

[18]  AB616-617.

[19]  According to the appellant it was prepared by a JP who worked for Mr Silver.

[20]  AB95 Tr2-57 ll7-20.

[21]  AB97 Tr2-59 l41.

[22]  AB180 Tr3-29 ll16-22.

[23]  AB106 Tr2-68 ll27-28; AB187 Tr3-36 ll26-28.

[24]  AB206 Tr3-55 ll39-40.

[25]  AB99 Tr2-61 ll26-40.  The signed document was in a form similar to Exhibit 8: AB618-630.

[26]  Exhibit 3: AB576-580.

[27]  Exhibit 2: AB558-561.

[28]  AB390 Tr5-104 ll17-24.

[29]  AB331 Tr5-45 ll3-37.

[30]  AB335 Tr5-49 l3 – AB337 Tr5-51 l25.

[31]  AB120 Tr2-82 ll26-27.

[32]  AB450 ll16-29.

[33]  AB449 ll37 – AB450 l13.

[34]  Appellant’s Outline of Submissions (“AOS”) at [18].

[35]  AOS at [19]; Appeal Transcript (“AT”) 1-10 ll27-29.

[36]  [2017] QCA 194 per Morrison JA at [72]-[81] (Atkinson J agreeing).

[37]  [2007] QCA 150 at [81], [85].

[38]  [2016] 1 Qd R 56; [2015] QCA 155.

[39]  A defence submission for a direction under s 22 was rejected by the learned trial judge: AB410 ll4-8.  His Honour reasoned that s 22 requires that there be no intention to defraud and that if the jury had a doubt about intention to fraud, then they would not have found dishonesty in the first place.  There is no appeal against the rejection of that submission: AT1-7 ll42-43; AT1-9 ll37-39.

[40]  At [4].

[41]  [1987] 2 Qd R 762.

[42]  (2002) 135 A Crim R 346; [2002] QCA 477.

[43]  [1982] QB 1053.

[44]  At 1064.

[45]  (1998) 192 CLR 493; [1998] HCA 7.

[46]  (2003) 214 CLR 230; [2003] HCA 24.

[47]  At [48].

[48]  [2017] UKSC 67; [2017] 3 WLR 1212.  Applied DPP v Patterson [2017] EWHC 2820 (Admin).

[49]  At [74].

[50]  Especially at [129], [130].

[51]  At [216], [217].

[52] Criminal Code s 488(1).

[53]  Ibid s 408C(1)(d).

[54]  At [130].

[55]  At [37].

[56]  At [72].

[57]  At [18].

[58]  AT1-30 l12 – AT1-31 l15; AT1-33 ll4-11.

[59]  AB454 l25 – AB455 l6.

[60]  AT1-28 ll5-7.

[61]  (2002) 210 CLR 285; [2002] HCA 45 at [5] (Kirby J agreeing).

[62]  It was submitted that such a direction could have been in the form of that at Benchbook No 31.1.

[63]  At AB22 Tr1-10 ll4-12, 46-47.

[64]  AB446 ll19-21, 39-43.

[65]  Tr1-10 l30 – Tr1-11 l10.

[66]  Tr1-10 ll40-41.

[67]  Tr1-38 ll4-11.

[68] TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 per Gaudron J at [26], citing Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514.

[69]  [1997] 1 Qd R 584 per Fitzgerald P and Thomas J at 587.

[70]  AB183 Tr3-32 ll29-43.

[71]  AOS at [39].

[72]  AOS at [40].


Editorial Notes

  • Published Case Name:

    R v Orchard

  • Shortened Case Name:

    R v Orchard

  • MNC:

    [2018] QCA 58

  • Court:


  • Judge(s):

    Sofronoff P, Gotterson JA, Henry J

  • Date:

    29 Mar 2018

  • White Star Case:


Litigation History

Event Citation or File Date Notes
Primary Judgment DC171/16 (No Citation) 05 Jun 2017 Date of Conviction (Devereaux SC DCJ).
Appeal Determined (QCA) [2018] QCA 58 29 Mar 2018 Appeal against conviction dismissed: Sofronoff P and Gotterson JA and Henry J.

Appeal Status

{solid} Appeal Determined (QCA)