SUPREME COURT OF QUEENSLAND 

[1]  KEANE JA: I agree with the reasons of White J and with the orders proposed by her Honour.

[2]  WHITE J: The appellant, who represented herself on this appeal, was found guilty on 5 December 2005 of one count of fraud with a circumstance of aggravation.  It was alleged that on 25 June 2004 she dishonestly obtained a chose in action of a value greater than $5,000 from Suncorp Metway Limited (“Suncorp”).  The amount was $30,000.  The Suncorp branch was in Bundaberg.

[3] The appellant’s sole ground of appeal in her written grounds of appeal is that the verdict was unreasonable.  At the appeal hearing the appellant elaborated other complaints which she pursued without objection and without formal amendment to her grounds of appeal.  They were that the prosecution did not use a forensic handwriting expert to prove that a particular signature was written by the person whose signature it purported to be; and that she had not been permitted to access the C drive of her computer which had been seized by police investigating the allegation against her in order for her to seek to find emails which she maintained she had sent and received. 

[4] The appellant also included in her outline of submissions material which she had wanted her lawyers to place before the court at the trial which they did not and an affidavit which, whilst not fresh evidence in the proper sense, was further evidence about a matter which was raised at the trial.  There was no objection to the receipt of this further material by Mr M Copley who appeared on behalf of the respondent.

[5] At the trial there was no dispute that the appellant obtained the subject money from Suncorp.  The issue was whether she did so dishonestly.  The appellant makes no complaint about the way in which that issue was left to the jury. 

[6] From 1995 to 2001 the appellant was employed by Queensland Tax and Business Consultancy Pty Ltd and an associated company, Northern Territory Tax and Business Consultants Pty Ltd (“NTTBC”).  The business operated in Queensland and the Northern Territory although the Territory business was later discontinued.  The appellant became a director of the companies.  NTTBC was the trustee of the directors’ superannuation fund styled the QTBC Staff Super Fund.  It operated an account at a branch of Suncorp in Bundaberg.  The directors were trustees of the QTBC unit trust. 

[7] The appellant denied that her employment was terminated in mid 2001 but there was acrimony between her and fellow directors, Mr Ralph and Ms Steadman, over matters it is not necessary to articulate.  The appellant sought certain entitlements relating to her employment through the Industrial Relations Commission and the matter was settled in a few weeks.  On 17 September 2001, the appellant resigned as director and trustee.

[8] The principal person involved in the business was Mr Peter Ralph.  In his evidence he said that after the issues in the Industrial Relations Commission were resolved with the appellant he had no further contact with her until a chance encounter at the courthouse in Bundaberg on 7 June 2004 almost three years after the appellant had ceased work.  What ensued during that encounter was the subject of starkly different evidence by Mr Ralph and the appellant.  But before turning to those accounts it is necessary to mention some uncontroversial facts.

[9] After her employment came to an end the appellant was entitled to certain monies held in the QTBC Staff Super Fund.  The then trustees of the fund decided in June 2004 that the money should be returned to the appellant.  On 20 June 2004 a cheque to the appellant for the sum of $2,148.88 was drawn by Queensland Tax and Business Consultants Pty Ltd as trustee of the QTBC Staff Super Fund and sent to her.  That cheque was dishonoured on 14 July 2001 due to insufficient funds being in the account.  Prior to the cheque being drawn, so far as Mr Ralph understood, the account held sufficient funds to meet it.  After the dishonour Mr Ralph discovered that $30,000 had been transferred out of the account. 

[10]  The applicant opened a personal bank account at Suncorp in Bundaberg on 4 May 2004.  The Suncorp officer, Ms McPhee, with whom the appellant dealt on that day, learnt from Suncorp’s records that the appellant remained a signatory to the QTBC Staff Super Fund account and informed the appellant.  The appellant asked Ms McPhee to close that account.  Ms McPhee explained that Suncorp needed a request signed by two signatories to the account before this could occur.  The signatories to the account since December 1998 had included the appellant and Mr Ralph. 

[11]  After 4 May 2004 the appellant had two discussions with the staff at Suncorp regarding this account.  One officer, Ms Hayes, told the appellant by telephone that the account could not be closed without two signatures after the appellant had sent a letter requesting closure and that a cheque of the proceeds be issued to her.  Ms Hayes told her who the other signatories to the account were.  According to Ms Hayes, the appellant said that those persons were “scattered to the four winds”, R12.30.  The appellant denied vigorously during her evidence at trial and again in the course of the appeal that that was an expression which she used.  She agreed at trial that she probably said the other signatories could not be located.  In fact Mr Ralph had resided at the same address in Bundaberg for over a decade which the appellant knew.  He also had the same email address as he had had in 1999.  The appellant’s evidence at trial was that Mr Ralph was often in Tasmania where he had business interests.  In any event, the appellant maintained before this court that it was for Suncorp to chase up Mr Ralph as they were in possession of his personal details and could have contacted him. 

[12]  Another Suncorp officer, Ms Puglisi, gave evidence that about 25 May 2004 the appellant had come to the Suncorp branch and sought to close the QTBC Super account.  Ms Puglisi also told her that the account could not be closed without a second signature.

[13]  On 25 June 2004 the appellant returned to Suncorp and presented a photocopied letter dated 24 June 2004 to Ms Puglisi which bore Mr Ralph’s signature, which matched Suncorp’s records of his signature, and which purported to permit the appellant to withdraw $30,000 from the Super Fund account.  The appellant, according to Ms Puglisi, said that Mr Ralph was in the Northern Territory and was not able to be telephoned.  Ms Puglisi had assumed that the letter was a facsimile copy.  The appellant had with her, which the appellant denied, a withdrawal slip prepared for $30,000 and signed it in Ms Puglisi’s presence. 

[14]  Ms Puglisi told the appellant that she could not have a cash withdrawal of that amount without notice so the appellant, according to Ms Puglisi, asked for $30,000 to be transferred to her personal account which was done.  Immediately prior to transfer that account had $37.40 in it.  Some 15 minutes later the appellant transferred or withdrew the $30,000 as an EFTPOS transaction at the Bundaberg Post Office. 

[15]  Mr Ralph accepted that it was his signature on the letter of authority brought by the appellant to Ms Puglisi at Suncorp on 25 June 2004 but denied that he actually signed that letter.  He said that at no time after the appellant’s resignation as a trustee did he authorise her to withdraw money from the Super Fund and the encounter at the courthouse at Bundaberg involved no conversation about entitlements to money in the Super Fund. 

[16]  The appellant related a different conversation with Mr Ralph at the courthouse.  She said she told him about accounts with Suncorp that needed to be closed and of one account with $911 in it.  He told her that the account would shortly receive more money from the sale of property.  The appellant said she told Mr Ralph she was owed $65,000 from her previous employment and he gave her the impression that he would get in touch with her about the money.  The appellant said that on 21 June 2004, some two weeks after the meeting at the courthouse, Mr Ralph rang her to say money had been put into the Super Fund Suncorp account.  He told her that if she sent him an authority he would sign it, return it to her and that she could have $30,000 out of the account.  The appellant said she told him it was insufficient but he intimated that was all that she could have then.  According to the appellant, on 23 June 2004 Mr Ralph telephoned her again and as a result she prepared the letter of authority on her computer at home and emailed it to him.  He emailed the letter back to her with his signature appended, she took it to the bank the next day and had the money transferred into her account.

[17]  The jury was thus presented with a conflict of evidence.  If the appellant’s account was accepted or they had a doubt about Mr Ralph’s, the jury could not find that she acquired the money dishonestly.  If the jury accepted Mr Ralph’s evidence they would find the appellant acted dishonestly.  There was some objective evidence which assisted the jury to resolve this conflict apart from choosing one account over the other. 

[18]  On 4 May 2004 when the appellant opened her own Suncorp account she gained internet access to those accounts to which she was a signatory.  Internet banking records show that the appellant requested an account history regarding the Super Fund account at 17.40 hours on 4 May.  Those records showed that the appellant made five or six attempts that evening to look at the account’s history.  The appellant at trial put this down to a “glitch” in the system or perhaps that she had double clicked on occasions.  On appeal she seemed to continue to seek to explain the entries in this way.  She made reference to having difficulties with her broadband connection to explain the five entries.  She submitted that she doubted that the jury understood about computers sufficiently to understand the answers that she gave about her computer.  The records show that the account was also accessed by her password on 18, 23, 25 and 28 June 2004.

[19]  The appellant’s computer was seized by police after the loss to the account was made known.  Mr Coulson, a police forensic computer analyst examined the hard drive.  It showed that the letter of authority was created on that computer on the afternoon of 24 June 2004.  The hard drive had no record in any form – deleted, partial or fragmented – of any email being sent to or received from Mr Ralph’s email address or any email to anyone containing that name or variants of it.  The appellant contended that had she been given full access to the C drive she could have found the emails to and from Mr Ralph.  She said that she had had the computer professionally cleaned just prior to its seizure because she had been receiving a large number of spam emails.  It was part of her complaint against her legal team that this had not been brought out in evidence. 

[20]  It is convenient to dispose of the two further matters which the appellant raised on the appeal.  The first is the failure by the prosecution to subject the signature on the letter of authority to forensic analysis.  There was no necessity to do so because Mr Ralph said that it was his signature.  At the trial the appellant was cross examined as to whether she had scanned Mr Ralph’s signature on to the letter from another document which she had which had been signed by him from the period when she worked in the business which she denied. 

[21]  The other matter concerned Carolyn Joy Kuhn, whom the appellant wished to have called at the trial but who was not, and who was with her at the courthouse on 7 June.  Ms Kuhn deposes that she saw Mr Ralph arrive at the courthouse and that the appellant introduced them.  He told them, according to Ms Kuhn, that he was at the courthouse over damage to his furniture transported to Tasmania; that the appellant and Mr Ralph discussed some former clients; the appellant asked after “Debra” [Steadman] to which Mr Ralph replied that he had not spoken to her in some time.  Ms Kuhn deposes that they spoke “for some time further but [she] moved aside and did not know what else was discussed between them.”  In cross-examination, Mr Ralph agreed that one of the appellant’s clients was present for some of the discussion on 7 June.  Counsel had just put to Mr Ralph the appellant’s version of their conversation and said

“And I’m not suggesting that she [Ms Kuhn] was within earshot of this conversation but it just helps identify the occasion”.

It is clear, then, that had Mrs Kuhn been called she could not have assisted the appellant’s case.

[22]  The appellant also complained about the poor presentation of her case by her legal representatives.  She said that she had had the same solicitor for some 18 months but that he went away just before trial and that the person who took over from him had no familiarity with the matter.  She said that she herself had prepared her case very well and had given an enormous amount of material to her lawyers but that very little of it was used, particularly relating to disputes leading up to her dismissal which she said showed Mr Ralph not to be truthful.  She was advised by her lawyers that it would not be advisable to make Mr Ralph “look bad”.  This was clearly a tactical decision.  As Mr Copley submitted, such a course of attack on Mr Ralph about past disputes would make it most unlikely that he would have exercised benevolence towards the appellant some three years after she had left employment. 

[23]  The approach of an appellate court when the ground of appeal is that the verdict is unsatisfactory is governed by observations in MFA v The Queen (2002) 213 CLR 606 particularly at para [25] where Gleeson CJ, Hayne and Callinan JJ quoted with approval from M v The Queen (1994) 181 CLR 487 at 493

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

At para [58] McHugh, Gummow and Kirby JJ referring to the same passage in M noted that the expression “unsafe or unsatisfactory” was language used at the time but that that expression was to be taken as equivalent to the statutory formula “unreasonable”. 

[24]  The issue was whether it was open to the jury on the whole of the evidence to be satisfied that when the appellant obtained the chose in action she was acting dishonestly by the standards of ordinary honest people in the community and if satisfied of that whether it was open to the jury to be satisfied that the appellant must have realised that what she was doing was dishonest by those standards.  The appellant herself at trial did not resile from that formulation of dishonesty which the following passage demonstrates

“You would agree, wouldn’t you, that it would be completely dishonest to manufacture a document, you’d agree with that? -- How - how do you mean?

You – I’m not saying – you would agree that to manufacture a false document would be a dishonest act? -- Yes.

And to you, such a manufactured document to in effect steal $30,000, would be completely dishonest? -- Yes.” R167

[25]  Upon discovering that she was still a signatory to an open Suncorp account which contained funds the appellant took advantage of the situation.  That much is clear when the history of her dealings with her new account and her visits to Suncorp and her access to the Super Fund account are examined.  Further, it was inherently improbable that Mr Ralph would have a cheque sent to her on 20 June for $2,148.88 after he had told her she could have $30,000 on 7 June and signed the letter of authority on 24 June.  It was even more unlikely since the appellant had left the business in unpleasant circumstances and there had been no claim or meeting between them for some three years.

[26]  This was a strong case that the appellant had dishonestly acquired $30,000 from the Super Fund account at Suncorp on 24 June 2004.  Accordingly, I would dismiss the appeal against conviction. 

[27]  There is also an application for leave to appeal against sentence.  The learned trial judge sentenced the applicant to a term of imprisonment of 12 months.  The applicant has already served her sentence which was imposed on 5 December 2005 to the extent that she was granted post prison community release after serving eight months.  It is now pointless to consider the application but since the applicant has appeared on her own behalf that point may be lost and some observations about the appropriateness of the sentence might be made. 

[28]  The applicant contends that the sentence was harsh.  The prosecutor sought a sentence in the range of 12 to 18 months which was not contested by defence counsel.  Her sentence was at the bottom of the range and was consistent with authority, particularly R v Jacob [1997] QCA 149; CA No 46 of 1997, a case where a post office worker was sentenced to imprisonment for 12 months suspended after six months for an operational period of two years.  The amount actually taken by her was about $8,000 of a sum of $20,000 which was missing and for which she was responsible but probably taken by others.  The applicant there pleaded guilty at an early stage.  The court intervened only to the extent of setting aside the order for suspension and in lieu recommended that she be sentenced to a term of imprisonment of 12 months with a recommendation for parole eligibility after three months and removed the operational period of two years.  Clearly this sentence was well within range.

[29]  The application for leave to appeal against sentence should be refused. 

[30]  PHILIP McMURDO J:   I agree with White J.