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R v Lyons[2021] QCA 136

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lyons [2021] QCA 136

PARTIES:

R

v

LYONS, Dianne Barbara

(appellant/applicant)

FILE NO/S:

CA No 221 of 2017

CA No 246 of 2017

DC No 131 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 22 August 2017; Date of Sentence: 22 August 2017 (Farr SC DCJ)

DELIVERED ON:

25 June 2021

DELIVERED AT:

Brisbane

HEARING DATES:

17 February 2021 and 20 April 2021

JUDGES:

McMurdo and Mullins JJA and Wilson J

ORDERS:

  1. The application for leave to read and file the affidavit of D Lyons sworn 17 February 2021 is refused.
  2. The appeal against conviction is allowed, the verdict of guilty on each count is set aside and a retrial is ordered on each count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE where the appellant was convicted of five counts of fraud to the value of over $30,000.00 and three counts of fraud – where the fraud was allegedly committed by the appellant in the course of operating a business importing vessels – where the appellant gave evidence in her own defence – where the prosecution case was supported by a considerable body of documentary evidence – whether the verdict of guilty on each count was unreasonable or unsupported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where dishonesty was an element of each count – where the trial judge failed to identify the knowledge, belief or intent said to render the appellant’s acts dishonest, at least in relation to counts four to eight – where the trial judge made very brief reference to the prosecution case on dishonesty in relation to some counts – whether the trial judge erred in not providing more detailed instructions about the knowledge, belief or intent said to render the appellant’s actions dishonest on each count

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – JOINT TRIAL OF SEVERAL COUNTS – where the appellant was convicted of five counts of fraud to the value of over $30,000.00 and three counts of fraud – where each count involved a different complainant – where much of the evidence was admissible on multiple counts, but some evidence was admissible only on one count – where the appellant’s credibility was relevant to each count – where the trial judge failed to direct the jury to consider each charge separately and only on the evidence relevant to it, or inform the jury that they could return separate verdicts – whether the trial judge erred in not providing these directions

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant alleged that the trial judge and prosecutor had engaged in misconduct – where the appellant alleged that transcripts and audio recordings of proceedings had been tampered with – whether there was any basis for these allegations

Criminal Code (Qld), s 567(2), s 668E(1), s 668E(1A)

Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24, cited

Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7, cited

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

R v Doolan [2014] QCA 246, applied

R v Khan [2020] QCA 242, cited

R v Miller [2021] QCA 126, applied

R v Ngwira [2017] QCA 294, distinguished

R v Orchard [2018] QCA 58, cited

R v Perrin [2018] 2 Qd R 174; [2017] QCA 194, cited

R v Smith (2007) 179 A Crim R 453; [2007] QCA 447, cited

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

The appellant/applicant appeared on her own behalf

G J Cummings for the respondent

SOLICITORS:

The appellant/applicant appeared on her own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    McMURDO JA:  The relevant evidence at the trial, and the arguments in this appeal, are set out in the judgment of Wilson J.  I agree with her Honour’s conclusion that the appeal against each conviction should be allowed, and a re-trial ordered.  In my view, this is because the trial judge did not direct the jury to consider each count separately and only by reference to the evidence relevant to it, and because, on counts 4 to 8, the judge did not direct the jury as to the facts which had to be proved in the proof of dishonesty.
  2. [2]
    In KRM v The Queen,[1] McHugh J observed that it was “the standard practice in cases where there are multiple counts … for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a “separate consideration warning”).”  He said that “[t]he universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present”.[2]  The practice was subsequently endorsed in the judgment of Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen[3] and in the judgment of Gageler, Gordon and Edelman JJ in Pickering v The Queen.[4]  In this Court, in R v Doolan,[5] McMurdo P (with whom Gotterson JA and Atkinson J agreed) said that this direction should be given “almost invariably whenever charges are joined”.[6]
  3. [3]
    The omission of such a direction would usually result in a miscarriage of justice where the accused is charged and convicted on more than count.  An exceptional case, where the direction was not required, was R v Ngwira,[7] where the offences arose out of the one continuous course of conduct and where all of the evidence at the trial was admissible on each count.
  4. [4]
    In the present case, much of the evidence was admissible on more than one count.  But for each count, there was evidence which was specific to it and relevant to no other count.  There was a different complainant for each count and the appellant’s dealing with that complainant was distinct from her dealings with the others.  The usual “separate consideration” warning was required in this case.  Unfortunately, at the conclusion of a lengthy and demanding trial, it appears that by oversight his Honour did not give the direction and a miscarriage of justice thereby resulted.
  5. [5]
    I go then to the directions which were given about the element of dishonesty.  In R v Dillon; Ex parte Attorney-General (Qld),[8] this Court held that the word “dishonestly”, in s 408C, has its ordinary meaning, thereby requiring the prosecution to prove that what the accused did was dishonest by the standards of ordinary honest people.[9]  The Court held that what was said in Peters v The Queen[10] was applicable in this context, and in particular, the statement by Toohey and Gaudron JJ of the necessary directions to be given by a trial judge to a jury for a decision whether an act was dishonest in this sense.[11]
  6. [6]
    Toohey and Gaudron JJ there explained that an objective assessment, by the standard of ordinary honest people, of whether a person’s act was dishonest must be made by reference to that person’s knowledge or belief as to some fact relevant to the act in question, or the intention with which the act was done.[12]  As they observed, in most cases where honesty of the accused is in issue, the real question is whether an act was done with a certain knowledge, belief or intent, rather than whether an act done with that state of mind is properly characterised as dishonest.[13]  Nevertheless, in all cases the issue of dishonesty must be determined by reference to what is proved to have been the accused’s state of mind as to some fact relevant to the accused’s act in question.  Their honours said:

“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 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.”[14]

  1. [7]
    In the present case, on the element of dishonesty, the prosecution case was not identical on all counts.  At the commencement of the trial, in the absence of the jury, the judge asked the prosecutor for a brief overview of the case, and the prosecutor replied:

“The dishonesty alleged against Ms Lyons really falls into one of two categories. The first category relates to counts 1, 2 and 3 … The Crown allegation in each of those counts is that each of the three complainants … engaged with Ms Lyons to use her services as a freight and import broker to transport vessels that each of them were negotiating to buy in the United States back to Australia.

In the course of discussing those arrangements with the defendant, the defendant raised the issue with each of the complainants in counts 1, 2 and 3 of how those complainants were going to manage the foreign exchange transfer of the money they were using as the purchase price for the vessel they were negotiating to buy from Australia to the US. In the course of those conversations, in effect, she offered the use of foreign exchange facilities that she operated within her business.

Each of those three complainants placed a sum of money into an account nominated, and they are different accounts for the different complainants, but into an account nominated by Ms Lyons to be held until needed to be transferred to the overseas vendor to complete the agreement to purchase. The Crown alleges that in each case, the money was not used for the purpose – it was used for other purposes. In relation to each of counts 1 and 2, there are references in the bank statements of the business that Ms Lyons operated to money going into those accounts from each of the complainants 1 and 2, and then being immediately dissipated or transferred elsewhere other than in accordance with their instructions.

In relation to Ms Ross, the account that was nominated was a Western Union account, and that is an account from which a deposit was paid to Mr Michael Holden from US Shipping. US Shipping was a company with whom Ms Lyons entered an arrangement to freight boats from the US to Australia. Those boats included boats that had been purchased by the complainants in 4 to 8. Mr Holden received the 30 per cent deposit that was required under the agreement he reached with Ms Lyons, but no further payment of that sum. So the complaints in relation to counts 4 to 8 suffered a loss. When the ship arrived here in Brisbane money was outstanding and, in effect, they had to pay a second time for fees and charges and other expenses that they had already fully paid to Ms Lyons.

The Crown case is … that at the time that the arrangements were struck between Ms Lyons and each of the complainants in counts 4 to 8, that occurred at a time after Ms Lyons had, on the Crown case, begun to use money from the McBeans and Mr Hill to pay other business expenses and prop up her business, and that she was heavily overdrawn – in effect, that her financial situation was hopeless, and at the time that she accepted money from the complainants in counts 4 to 8, she knew that she would be unable to deliver her end of the bargain, as it were, in relation to those arrangements.

So in relation to counts 1, 2 and 3, money was given for one purpose only. It was used for business and other expenses, some of which we can’t identify, but certainly after that occurred, the financial position was so precarious that subsequent arrangements must have been very, very clear that there was no means by which Ms Lyons could make good on, and that is the second category of dishonesty for counts 4 to 8.”

  1. [8]
    In his closing address to the jury, the prosecutor concluded his argument as follows:

“If you look at the documents that’ve been tendered in respect of each of those counts – the emails from the McBeans, the emails from Mr Hill, clearly – the conduct of each of those people is the conduct of someone who is pursuing the repayment of all of their money, not someone who has given some permission or authority for it to be used in another way [and] that’s supported by the banking records, as I’d suggest.

If you’re satisfied that the money they paid to Dianne Lyons to be held and transferred only to the vendor of the boat when the contract was to settle was used by Dianne Lyons for another purpose, then there can be no explanation for that other than its use was dishonest, was done without their knowledge and, equally so, for Allan Ross.

And you have the overdraft accounts and the other accounts, the fact that money was paid by each of the complainants in counts 4 to 8 leading up to the entry of the booking note. There’s insufficient funds to pay the deposit. Once the deposit is paid but no other payments were received by US Shipping, further amounts are invoiced and received. Each of them suffered a loss.”

  1. [9]
    In the summing up, the trial judge directed the jury, as to the issue of dishonesty, first by saying that the prosecution had to prove that what the defendant did was dishonest, by the standards of ordinary, honest people.  His Honour then gave directions about that issue for counts 1 and 2, saying, correctly, that the prosecution case was that the defendant had used monies, received from those complainants, for purposes other than which they had been authorised.  The judge directed the jury that if they concluded that the complainants for these counts did not authorise the appellant to use the monies as she did, then they could convict on those counts.
  2. [10]
    As to count 3, the trial judge identified the relevant factual issue, correctly, as whether the appellant had meant to pay the money received from the complainant as had occurred, namely by a payment to Mr Holden’s company.  The judge directed the jury that if they could reject the appellant’s evidence, that the money was so paid by an administrative mistake, then they could convict on that count.
  3. [11]
    More detailed directions might have been given by the judge in relation to those counts.  For counts 1 and 2, the judge might have identified more directly the relevant state of mind of the appellant, which the prosecution sought to prove, as a knowledge or belief that the complainant had given permission for her to use the money only for the acquisition and delivery of the boat which the complainant was purchasing.  On count 3, the appellant’s evidence accepted that she was not authorised to disburse the funds received from Mr Ross as she did.  Her dishonesty was in using this money to pay someone else, meaning to do so whilst knowing or believing that she was not authorised to do so.  Again, in that way the directions might have more directly identified the relevant knowledge or belief of the appellant.  Nevertheless, the prosecution case on the issue of dishonesty for counts 1, 2 and 3, as the judge’s directions described it, was sufficiently clear to ensure that the jury understood what had to be proved, so that there was no miscarriage of justice.  But for the omission of the “separate consideration” directions, I would not set aside the convictions on these counts.
  4. [12]
    However, on counts 4 to 8, the judge’s description of the prosecution case was not so clear.  Ultimately, the prosecutor’s argument focussed upon the appellant’s state of mind at the time of the acceptance of money from the relevant complainant, and at the time of its use for a purpose other than that for which it had been paid to her.  On these counts, the prosecution argued that, at any relevant time, the appellant knew that she could not discharge her obligation to the complainant because of the precarious state of her finances.  The alleged state of mind of the appellant was a knowledge or belief that when the appellant received money from the complainant, or disbursed that money, the complainant would receive nothing for it.  A finding to that effect, on each of these counts, was open to the jury.[15]
  5. [13]
    The directions, as to dishonesty, on counts 4 to 8 were simply as follows:

“And, of course, you must adopt the same approach to the evidence that is relevant to each of counts 4 to 8 inclusive. In respect of counts 4 to 8, of course, you have heard from the defendant in evidence whereby she has said the moneys that were received were onforwarded appropriately. But you have also heard the evidence of Mr Holden and you have been reminded of other evidence which is said to be relevant to those issues during the course of addresses.”

  1. [14]
    With respect, that direction failed to identify the prosecution case.  In particular, it failed to identify the alleged state of mind of the appellant in performing the act or acts by which the offence was committed, by reference to which the appellant’s honesty or otherwise was to be judged.  The jury was not instructed as to the facts to be established by the prosecution, beyond the disproof of the appellant’s claim that Mr Holden’s company had been fully paid.  Consequently, there was a further reason why there was a miscarriage of justice affecting the convictions on counts 4 to 8.
  2. [15]
    I agree with the reasons of Wilson J for rejecting the other grounds of appeal.  Understandably, in a case where the jury’s assessment of the credibility of the appellant and other witnesses was critical, the respondent does not argue for the application of the proviso.[16]
  3. [16]
    The appeal should be allowed, and the conviction on each count should be set aside and a re-trial ordered.  It will be for the Director of Public Prosecutions to decide whether to proceed further, in the circumstance where, by now, the appellant has served nearly all of her sentence before her parole eligibility date.
  4. [17]
    MULLINS JA:  I agree with the reasons of, and the orders proposed by, Wilson J.  I also agree with the additional reasons of McMurdo JA in relation to the failure of the learned trial judge to direct the jury as to the requirement to consider each of the charges by reference to the evidence that was admissible in respect of that charge.  I also agree with McMurdo JA’s additional reasons for why the trial judge made an error in the directions given on the element of dishonesty for each of counts 4 to 8.
  5. [18]
    McMurdo JA and Wilson J reached different conclusions about whether the directions given by the trial judge were adequate in the circumstances on the element of dishonesty for each of counts 1 to 3.  I accept that the position is not as clear in relation to the directions on these counts as it was for counts 4 to 8, but will endeavour to explain why I have agreed with Wilson J that the directions on each of these three counts were also deficient.  It may be that if the only error was in relation to the directions on dishonesty on counts 1 to 3 without the omission of the direction on the separate consideration of charges, the prosecution may have been able to show that the resultant miscarriage of justice was not substantial.
  6. [19]
    In R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56 at [48], McMurdo P (with whom Morrison JA and Dalton J agreed) embraced  for the purpose of s 408C of the Criminal Code (Qld) the meaning given to “dishonesty” by the High Court in Peters v The Queen (1998) 192 CLR 493 at [18]-[19] and cited with approval in Macleod v The Queen (2003) 214 CLR 230 at [37], [99]-[101] and [130].  It was suggested in Peters at [18] by Toohey and Gaudron JJ that:

“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.”

  1. [20]
    In relation to the element of dishonesty, the purpose of the suggested direction in the above passage as to the knowledge, belief or intent with which the accused person did the dishonest act is to assist the jury in applying the test of whether the act was dishonest by the standards of ordinary, honest people.  It ensures the issue of dishonesty is not left at large, but focuses the jury’s assessment of the evidence to decide whether the element of dishonesty has been proved beyond reasonable doubt by considering the knowledge, belief or intent with which the relevant act was committed.  To enable the trial judge to give such a direction, the prosecution case must articulate clearly the knowledge, belief or intent with which the accused person is alleged to have done the dishonest act which is the subject of the particular charge of fraud.
  2. [21]
    The trial judge summarised the prosecution case in relation to each of counts 1 and 2 to the effect that the appellant used the moneys handed over by the respective complainants for purposes other than that which was authorised by the complainants, but did not advert to that part of the prosecution case concerned with the knowledge, belief or intent with which the appellant used those moneys.  The trial judge summarised the appellant’s case that she was expressly authorised by each of the complainants for count 1 and count 2 to use their moneys in the ways that she did.  The trial judge directed the jury appropriately that if they accepted the appellant’s evidence or if they had a reasonable doubt as to whether the respective complainants provided that authority, the prosecution would have failed in proving dishonesty beyond reasonable doubt and they would acquit.  The trial judge directed the jury that if they concluded beyond a reasonable doubt that each of the complainants did not authorise the appellant to use their moneys in any way other than that which was originally intended by the respective complainant, then they could convict, but did not link that lack of authority with the need for the prosecution to show that the appellant knew she was using the money for a purpose that was different than that for which she was authorised to use it.  That was, in fact, the prosecution case for each of counts 1 and 2, but it was not given the imprimatur of a direction from the trial judge, as suggested in Peters at [18], that in order to find dishonesty, they had to apply the standards of an ordinary, honest person to the payment of the money the subject of each of counts 1 and 2, if they were satisfied beyond reasonable doubt that it was paid for a purpose by the appellant for which she was not authorised and she knew she was not authorised.  There was ample evidence before the jury to enable them to draw an inference beyond reasonable doubt that the appellant made each of those payments for a purpose for which knew she was not authorised.
  3. [22]
    In relation to count 3, the trial judge summarised the appellant’s case that the complainant’s money was paid over to Mr Holden’s company as a result of an administrative error and again appropriately directed the jury that if they accepted the appellant’s evidence in that regard or it caused them to have a reasonable doubt about what actually happened or occurred, they would acquit, because the prosecution would not have proved dishonesty beyond reasonable doubt.  The trial judge did not give any further specific directions on what they had to be satisfied about in order to convict on count 3, but directed the jury that, “…you would turn your mind to the evidence you do accept and, based upon that evidence, determine if the Crown had proved each of the elements of that offence beyond reasonable doubt”.  The prosecution case on count 3 was that the appellant had used the complainant’s money for a purpose that was not authorised and she knew that was the case.  Again, the trial judge failed to direct the jury in accordance with the suggested direction in Peters at [18].  It did not automatically follow from a rejection of the appellant’s evidence that the prosecution had proved beyond reasonable doubt that the payment was made by the appellant knowing that it was not authorised, although there was ample evidence before the jury to enable them to draw that inference beyond reasonable doubt.
  4. [23]
    WILSON J:  On 22 August 2017, at the conclusion of a fourteen-day trial in the District Court, the appellant, Dianne Barbara Lyons, was convicted by a jury of five counts of fraud to the value of over $30,000.00 and three counts of fraud.  On 21 September 2017, the appellant appealed her conviction on two grounds:
    1. (a)
      the jury’s verdict was unreasonable or could not be supported having regard to the evidence; and
    2. (b)
      the trial judge erred in rulings affecting the conduct of the appellant’s case.
  5. [24]
    On 22 September 2017, the appellant was sentenced to eight years’ imprisonment in relation to count one and shorter, concurrent terms of imprisonment for the other counts.  The sentencing judge declared 31 days of pre-sentence custody and set a parole eligibility date at 22 August 2021.  On 20 October 2017, the appellant applied for leave to appeal against her sentence on the grounds that the sentence imposed was manifestly excessive.
  6. [25]
    The appellant was self-represented at trial and is self-represented in this appeal.  Her submissions on appeal were voluminous, spanning 57 pages.  They raised some 113 points in relation to her conviction appeal, nine points in relation to her sentence appeal and a further four “public policy issues”.  In relation to the appeal against conviction, the appellant summarised her submissions into seven topics: no case to answer; mistake of fact; identification of the correct wrongdoers; the right to a fair trial; the trial judge’s errors and misconduct; prosecutor and police misconduct; and appeal record book and trial recording irregularities.
  7. [26]
    In relation to the sentence appeal, the appellant raised three issues: the trial judge did not consider the additional hardships experienced by a person with a genetic condition such as adult onset muscular dystrophy; misconduct by the prosecutor at sentencing; and misconduct by the general manager of Queensland Corrective Services.
  1. [27]
    Many of the points raised by the appellant are duplicitous and confused, but her submissions in relation to her appeal against conviction essentially fall into the following categories:
    1. (a)
      the appellant could not, as a matter of law, have been convicted of the offences;
    2. (b)
      the jury’s verdict was unreasonable or could not be supported having regard to the evidence;
    3. (c)
      the trial judge made errors of law in pre-trial rulings and rulings on the admissibility of evidence;
    4. (d)
      the trial judge gave insufficient directions to the jury in his summing up.
    5. (e)
      the appellant was unduly prejudiced because she was self-represented or because of the delay in these proceedings;
    6. (f)
      the trial judge’s conduct during the trial resulted in a miscarriage of justice; and
    7. (g)
      the prosecutor’s conduct before and during the trial resulted in a miscarriage of justice.
  1. [28]
    In my view, the appellant’s appeal against conviction should be allowed, her conviction quashed and a new trial ordered on two bases:
    1. (a)
      the trial judge failed to instruct the jury about the need to consider each charge against the appellant separately; and
    2. (b)
      the trial judge failed to properly direct the jury on the element of dishonesty.
  2. [29]
    The disposition of the appeal on this basis means that it is not necessary to consider a significant number of the issues raised by the appellant, except, of course, any submission that raises the issue of whether a verdict of acquittal should be entered.  It is not necessary to consider the application for leave to appeal against sentence, nor the appellant’s lengthy 227 page affidavit sworn on 17 February 2021, which sets out matters including the appellant’s disability, work history and education, documents including letters and tables not tendered at trial and a number of matters already raised in her submissions.  In the circumstances, leave to file and read this affidavit is refused.
  3. [30]
    As the appellant has raised allegations against both the trial judge and the prosecutor, I will briefly address these unfounded complaints in my reasons.

Circumstances of the alleged offending

  1. [31]
    The appellant was the director of Leisure Freight & Import Pty Ltd (“Leisure Freight”), which imported boats and boating accessories into Australia.[17]  A substantial part of her business was providing sea freightage services for boats purchased overseas.  The appellant also ran a side business helping clients convert currency using an “OzForex” account.
  2. [32]
    The indictment contained eight counts of fraud, each relating to a different complainant, which were allegedly committed by the appellant between 13 November 2012 and 1 December 2013 in the course of operating her businesses.  The prosecution case, in relation to each count, was that the appellant, through her company, had received monies from the complainants for specific purposes and dishonestly misused those funds for unauthorised purposes.
  3. [33]
    Counts one, two and three relate to three complainants: Mr McBean, Mr Hill and Mr Ross.  The prosecution case was that each of the complainants had engaged the appellant as a freight and import broker to transport vessels they intended to purchase from the United States to Australia.  In each case, the appellant offered to let the complainants use her OzForex account to manage the necessary currency conversions.  Each complainant placed a sum of money into an account nominated by the appellant to be held by her before being transferred to an overseas vendor to complete the transaction.  Instead, the prosecution alleged that, in each case, the appellant dishonestly misused the money for unauthorised purposes, including to prop up her business.
  4. [34]
    In relation to count three, the prosecution alleged that Mr Ross’ funds were transferred to Mr Michael Holden, who was the director of a company called US Shipping.  US Shipping was a company with whom the appellant had entered into an arrangement to freight vessels from the United States to Australia.  These vessels included vessels purchased by the complainants in counts four to eight: Mr Bird, Mr Rolle, Mr Barbagallo, Mr Johnson and Mr Wallenburg.
  5. [35]
    The prosecution case in relation to counts four to eight was that the appellant paid Mr Holden a 30 per cent deposit for the freight but did not pay the balance of the freight charges.  The consequence was that, when the ship arrived in Brisbane, money was outstanding in respect of each of the eight vessels.  The owners of those vessels suffered loss because they had to pay the outstanding charges, meaning that, in effect, they paid for a portion of the freight and related charges twice.  In addition, Mr Bird and Mr Rolle never received Magic Tilt trailers that they had paid for, although I note that there is evidence that some trailers were delivered to the port in Brisbane.
  6. [36]
    The appellant called and gave evidence in her defence at trial.  Her oral evidence was lengthy and took four days to complete.  She did not dispute the allegation that each of the complainants had transferred her money, nor did she dispute the purposes for which the funds were transferred.  Her case was that she was not guilty of fraud because she had not acted dishonestly.
  7. [37]
    In relation to counts one and two, the appellant claimed that the complainants had given her permission to use their money to pay “dead freight” (a cancellation fee for not using space reserved on a vessel).
  8. [38]
    In relation to count three, she claimed that, due to an administrative error by one of her staff members, Mr Ross’ funds had been paid to Mr Holden for freight.
  1. [39]
    In relation to counts four to eight, the appellant claimed that she had paid Mr Holden in full for the freight and no extra charges were payable by any of the complainants.  In addition, in relation to counts four and five, the trailers had been paid for and delivered, but were destroyed because of Mr Holden’s mismanagement.

Issue of the “missing” transcripts

  1. [40]
    The appellant alleges that the transcripts and recordings of the trial proceedings were incomplete or manipulated.  Specifically, the appellant asserts that just over 20 hours of the audio recording of the proceedings had been edited out of official records and as a result, significant portions of the transcript were “missing”.  The appellant submits that these “missing” sections of the transcripts would support several of her submissions and contained, including inter alia:
    1. (a)
      exchanges in which the trial judge yelled at her and stormed out of the courtroom;
    2. (b)
      objections she made to false evidence put forward by the prosecution; and
    3. (c)
      an exchange between the prosecutor and the trial judge before the jury was empanelled about previous attempts to negotiate a plea deal while members of the jury were at the back of the courtroom.
  2. [41]
    On 3 March 2021, the appellant filed an affidavit setting out her allegations about the editing of the transcripts and audio files, including a 136 page document containing “screenshots” of the audio files with red lines marking where the audio had allegedly been edited.  She claimed that:

“The screenshots attached as Exhibit DBL2-D show a total of 860 “Clips” to the files which are “cuts” in the audio files deleting or adding content to the audio track. 20 hours, 2 minutes and 12.39 seconds are missing from the files. This is shown because the person that clipped the files did not realise or forgot that two final steps are required to save the audio file as a finished file and for this reason they still have the “editing path” in the files.

If these files were to be put on the computer that deleted these 860 sections of audio, the deleted audio can be recovered by the Police Electronic Evidence Unit or an independent provider.”

  1. [42]
    In addition, the appellant’s affidavit raised, for the first time, allegations that:
    1. (a)
      sections of the trial judge’s opening address to the jury have been added into the transcript; and
    2. (b)
      the evidence of two Crown witnesses was falsely cut from the transcript on 10 August 2017 and pasted into the transcript on 17 August 2017 to make it appear that they were defence witnesses.
  2. [43]
    The Crown prosecutor and his instructing solicitor filed affidavits on 3 March 2021 swearing that the sections of the audio recordings they had listened to corresponded with the transcripts and their memories and notes of the trial.
  3. [44]
    On 8 March 2021, the Crown prosecutor filed a second affidavit addressing the new claims of transcript tampering raised in the appellant’s affidavit.  In relation to the parts of the trial judge’s opening address that had allegedly been added to the recording, the Crown prosecutor explained that there had been a discussion between the Bench and the trial judge in the absence of the jury about the approach he intended to take to the summing up.  This had not been transcribed but the audio recording was consistent with his recollection.  The recordings on 17 August 2021 were also consistent with his recollection and he remembers the appellant informing the Court that she wished to call these witnesses in her case.
  4. [45]
    The appellant refused to accept service of the Crown prosecutor’s second affidavit and the appeal was mentioned on 20 April 2021 to deal with this issue.  Leave was granted to file the Crown prosecutor’s second affidavit, but the appellant was given until 11 May 2021 to file a response.  She failed to do so.
  5. [46]
    On 17 May 2017, the Court received an email from the appellant requesting a further extension of time to file the additional materials.  The appellant alleged that her USB had “caught fire” when the IT Manager at the prison was using it.
  6. [47]
    In my view, the requested extension of time should not be granted.  The appellant has had ample opportunity to respond to the Crown prosecutor’s affidavit and has well and truly been afforded natural justice.
  7. [48]
    After considering the evidence, I am not satisfied that there has been any editing or manipulation of the transcripts as alleged by the appellant.  The “screenshots” contained in the appellant’s affidavit do not prove that any of transcripts were edited.  The prosecution team have sworn affidavits that the transcripts accurately reflect the trial.  In my view, any complaint made by the appellant based on “missing” sections of the transcript has no basis.

Other “missing” documents

  1. [49]
    The appellant’s reliance on “the missing”, whether it be transcripts or other documents, was a common answer she used in response to the prosecution case at the trial and in this appeal.  In addition, the appellant tended to assert that any emails or other documents that were contrary to her case had been forged or otherwise manipulated.
  2. [50]
    The appellant submitted that the prosecution failed to comply with its disclosure obligations under s 590AB of the Criminal Code (Qld) (“Criminal Code”).  In particular, the appellant alleges that the police and prosecution destroyed or lost the “sent emails” from Leisure Freight’s computer and “box 10” of the police evidence.  The appellant also alleges that the prosecution filed an affidavit by the police Electronic Evidence Unit regarding the “sent” emails on the Leisure Freight computer, knowing that it was false.
  3. [51]
    These allegations were the subject of several pre-trial hearings in the District Court.  I note, in particular, that Reid DCJ in a pre-trial hearing on 15 June 2017, after hearing from a number of witnesses, concluded that he could not be satisfied that there were further documents in the possession of the prosecution that had not been disclosed.  His Honour stressed that police officers had sworn on oath that they had provided all relevant documents.  His Honour concluded that, even if inadvertent mistakes had been made in the disclosure process, he was not persuaded that the police were malevolently hiding documents from the appellant.
  4. [52]
    The prosecution has complied with their disclosure obligations.  Nothing that the appellant has submitted, or presented, demonstrated that the prosecution had not complied with their disclosure obligations.

Legal basis for the charges

  1. [53]
    The appellant’s submissions as to why there is no legal basis for her conviction, are many, diffuse and difficult to understand.  All are unfounded.
  2. [54]
    The appellant submits that, if any crimes were committed, then they were committed by her company Leisure Freight.  She submits that this was not an occasion on which the corporate veil could be pierced to implicate the appellant in her capacity as director in any wrongdoing.  On this basis, she submits that she was not the proper defendant.
  3. [55]
    The appellant is the proper defendant.  She was the person who spoke to the complainants, arranged to take their money for a purpose and, on the prosecution case, used the complainants’ money for another purpose, causing pecuniary loss.
  4. [56]
    The appellant contends that she had “no case to answer” because she and her company Leisure Freight acted lawfully at all times.  The appellant repeats a number of common complaints, sometimes put in different ways, but essentially asserts that:
    1. (a)
      Leisure Freight produced a formal quotation sent to all of the complainants, which included that any and all additional costs applied by the shipping lines would be passed to the owner of the goods and that they were subject to the bill of lading terms and conditions.  Accordingly, Leisure Freight exercised its “legal claim of honest right” as provided for in the formal written quotes and none of the complainants’ monies were used in connection with any costs other than those attributed directly to the complainants.  In each case, where overpayments were made, these were mostly borne by Leisure Freight.
    2. (b)
      the appellant and her company complied with the requirements of legislation including the Admiralty Act 1988 (Cth), Maritime Powers Act 2013 (Cth), Carriage of Goods by Sea Act 1991 (Cth), Bankruptcy Act 1966 (Cth), Corporations Act 2001 (Cth), Trade Practices Act 1974 (Cth) and Competition and Consumer Act 2010 (Cth).  The appellant submits that “a person is not guilty of a criminal offence in obedience of another law”;
    3. (c)
      the appellant honestly believed, via her lawyers, that BBC Charters had a legal claim of right under these Acts;
    4. (d)
      Leisure Freight acted lawfully at all times, as was required of them under the various Acts and was entitled to make a profit on these transactions;
    5. (e)
      Mr Hill assisted in bankrupting the appellant two weeks prior to a civil trial where Leisure Freight and Leisure Freight’s customers could recover Mr Hill’s dead freight;
    6. (f)
      Leisure Freight was bound by the terms and conditions which were on the reverse side of the BBC Charters bills of lading;
    7. (g)
      the appellant and Leisure Freight did not commit fraud, but Mr Holden and a number others did commit false pretence, dishonest dealings and fraud against Leisure Freight, the appellant and Leisure Freight’s customers.
  5. [57]
    These matters are based upon the appellant’s evidence and, if relevant, were for a jury’s consideration.  I note that the appellant’s bankruptcy was an irrelevant consideration in relation to the appellant’s criminal trial.
  6. [58]
    In addition, the appellant asserts that a defence was raised pursuant to section 31 of the Criminal Code, which provides (relevantly):

31 Justification and excuse—compulsion

  1. (1)
    A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say—
  1. (a)
    in execution of the law;
  2. (b)
    in obedience to the order of a competent authority which he or she is bound by law to obey, unless the order is manifestly unlawful;
  3. (c)
    when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s presence…”
  1. [59]
    The question for the jury was whether they were satisfied, beyond a reasonable doubt, that the appellant received monies from each complainant for specific purposes and then she dishonestly misused those funds for an unauthorised purpose.
  2. [60]
    The substance of the appellant’s submissions is that she did not act dishonestly, as she properly paid demands for dead freight and all freight payments, as required by her contractual obligations and the various Acts she cited.  This was in essence her evidence at the trial, although I note that she did not specifically refer to these Acts in her evidence or address to the jury.  Ultimately, the appellant’s evidence was a matter for the jury to consider.  If the jury accepted the appellant’s evidence or was left in a state of reasonable doubt as to what the true position was, then she would have been found not guilty.  Section 31 of the Criminal Code was an irrelevant consideration for this task.  I note that the jury clearly rejected the appellant’s evidence in coming to their verdicts.
  1. [61]
    Further, the appellant contends that a mistake of fact was raised in relation to count three.  Section 24 of the Criminal Code sets out the mistake of fact defence:

24 Mistake of fact

  1. (1)
    A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
  2. (2)
    The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”
  1. [62]
    The prosecution case in relation to count three was that Mr Ross’ funds did not go directly to US Shipping, but instead went into the appellant’s Western Union account, and then onto US Shipping for a purpose that was unauthorised by Mr Ross.  The appellant’s evidence in relation to count three was that, through an administrative error, Mr Ross’ funds were incorrectly sent directly to US Shipping.  The question for the jury was whether they were satisfied, beyond a reasonable doubt, that the appellant received monies from Mr Ross for a specific purpose and dishonestly misused those funds for an unauthorised purpose.  Once again, these were matters for the jury to consider.  If the jury accepted the appellant’s evidence or was left in a state of reasonable doubt as to what the true position was, then she would have been found not guilty.  Section 24 of the Criminal Code was an irrelevant consideration for this task.  I note that the jury clearly rejected the appellant’s evidence in coming to their verdicts.

Unreasonable verdict not supported by the evidence

  1. [63]
    The appellant’s notice of appeal alleges that the jury’s verdict was unreasonable or not supported having regard to the evidence.  This submission was not well developed in her written or oral submissions.  However, as the point has been raised, it is incumbent on this Court to conduct an independent examination of the whole of the evidence to determine whether it was open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty on all counts.[18]
  2. [64]
    In summary, the evidence led by the prosecution consisted of oral testimony from twelve witnesses, including the complainants, Mr Holden and investigating officer Senior Constable Julie Smith.  In addition, the prosecution tendered a number of emails and other documents sent by the appellant, as well as the appellant’s bank account records.
  1. [65]
    The appellant gave evidence in her own defence.  She also briefly recalled Mr Bird and Mr Rolle (the complainants in relation to counts four and five) to give evidence about the trailers they had purchased from her.  The appellant’s evidence was confusing and repetitive, and subject to a very large number of well-founded objections from the prosecution.
  2. [66]
    On 3 August 2017 (the fourth day of the trial), the appellant served a subpoena on Mr David Begg, the managing director of a company called BBC Chartering Australia Pty Ltd (“BBC Chartering”).  However, the trial judge set that subpoena aside pursuant to section 33(1)(a) of the Criminal Practice Rules 1999 (Qld) on the grounds that the subpoena was too wide, the requested material was irrelevant, and the volume of material requested and timeframes for production were oppressive in the circumstances.  There was no error by the trial judge in doing so.

The prosecution case

Mr and Mrs McBean

  1. [67]
    The first two prosecution witnesses were Mr McBean (the complainant in relation to count one) and his wife.  Mr and Mrs McBean were negotiating with brokers in San Diego to buy a vessel called the Ninkosa, which they intended to freight back to Australia.  Before the negotiations were completed, Mr and Mrs McBean spoke to the appellant about organising sea freight if the purchase went ahead and they were quoted $65,000.00.
  2. [68]
    The appellant offered to allow them use of her OzForex facility, claiming she could get a better exchange rate.  Mr and Mrs McBean gave evidence that the appellant told them to transfer the money to her Leisure Freight Bendigo Bank account.  She told them that it would then be sent, via OzForex, to her Bank of America account.  From that account, it would be sent to whichever ship broker or wherever else Mr and Mrs McBean asked.
  3. [69]
    In November or December 2012, Mr and Mrs McBean transferred $515,000.00 to the appellant’s Leisure Freight Bendigo Bank account for the purchase of the Ninkosa, consisting of $450,000.00 for the purchase price and $65,000.00 for sea freight.  The prosecution tendered an invoice and bank account statement reflecting this transaction.
  4. [70]
    After the funds were transferred, the Ninoska failed its sea trial and the McBeans decided not to proceed with the purchase.  The appellant was instructed to refund the $65,000.00 paid for freight, which she did.  She was also instructed to leave $450,000.00 in her Bank of America account in case they found another boat.
  5. [71]
    On 29 January 2013, the McBeans sent the appellant an email instructing her to convert their money back into Australian dollars and deposit it back into their bank account.  The appellant purported to comply with these instructions, proffering what appeared to be an OzForex transaction which would result in $450,798.70 going back into the Leisure Freight Bendigo Bank account.  She would later admit this transaction did not occur.
  6. [72]
    On 26 February 2013, the McBeans again contacted the appellant by email, asking when their money would come through.  The appellant replied promising to transfer the money the following day.  However, the money was not deposited into their account.
  7. [73]
    On 4 March 2013, the McBeans again emailed the appellant, pressing her for payment.  She responded claiming they were waiting for the dollar to appreciate.  Still no funds arrived.
  8. [74]
    On 12 March 2013, Mr and Mrs McBean attended the appellant’s home address and demanded an explanation.  The appellant told them she had lodged the money with OzForex, but she had never received the funds.  Mrs McBean said that the appellant told them that, as far as she knew, the money was lost in cyberspace (i.e. caught between accounts) and she was trying to get it cleared.
  9. [75]
    The appellant then promised to sell her yacht and pay them $80,000.00 a day.  The appellant also emailed the McBeans a document purporting to be a bank transfer receipt of $80,000.00, which was tendered as an exhibit.  No funds were in fact deposited.
  10. [76]
    On 19 March 2013, Mr and Mrs McBean again attended the appellant’s address and spoke with her.  Mr and Mrs McBean gave evidence that, on this occasion, the appellant admitted that she had used their funds to pay her own business expenses.  They testified that they had never given the appellant permission to use their money for this purpose.  In cross-examination, Mr and Mrs McBean both denied having discussed dead freight with the appellant or having authorised the appellant to use their money to pay dead freight.
  11. [77]
    The appellant then hand wrote a document which purported to sign over title to her house as guarantee for the repayment of $450,798.70 within 30 days.  This document was tendered as an exhibit.  The appellant did subsequently repay $130,000.00 but the outstanding $320,000.00 has never been repaid.

Mr Hill

  1. [78]
    The next prosecution witness was Mr Hill, the complainant in relation to count two.  Mr Hill intended to buy a Glacier Bay 3480 catamaran from the United States.  On 5 December 2012, Mr Hill deposited $22,913.88 into the appellant’s Leisure Freight Bendigo Bank account for the payment of a deposit on the catamaran, with instructions that she deposit it in the broker’s account via her OzForex facility.
  2. [79]
    After paying the deposit, Mr Hill transferred a further $191,943.13 to the appellant’s Leisure Freight Bendigo Bank account for payment of the balance of the purchase price.  He instructed the appellant to deposit the funds via her OzForex facility into an escrow account with the Bank of America at 100 33rd Street West, New York.  Invoices and bank account statements relating to this transaction were tendered as exhibits.
  3. [80]
    On 14 December 2012, the appellant sent an email confirming receipt of the funds and asserting that they had been sent off to the Bank of America.  This did not, in fact, occur and Mr Hill sought an extension of time to settle the boat.
  4. [81]
    Mr Hill then enlisted the help of his friend, Mr Davey, who ran a helicopter export business and had a bank account which he used to receive and pay large amounts of money in the United States.  He approached Mr Davey and asked if he could use this account to purchase the catamaran.  On 19 March 2013, Mr Hill instructed the appellant to transfer the funds to an account run by Mr Davey.
  5. [82]
    On 28 March 2013, the appellant sent Mr Hill an email telling him that the Bank of America account had matured and the money would be transferred that night.  This did not occur.
  6. [83]
    On 14 April 2013, the appellant sent Mr Hill an email purporting to show that the OzForex deposit was maturing that day and stating that the funds should be transferred that night.  This never occurred and Mr Hill never recovered the $191,943.13 he transferred the appellant.
  7. [84]
    Mr Hill also gave evidence that he and his wife had attended the Bank of America address at 100 33rd Street West, New York in an attempt to work out what had happened to their money.  Upon arrival, they were told there was no Bank of America at that address.  The prosecution submitted that this evidence was relevant because, whether or not there was actually a Bank of America branch at 100 West 33rd Street, Mr Hill’s conduct in attempting to attend the bank to find out what had happened to his money was inconsistent with the appellant’s assertions that he had given her permission to use his money to pay dead freight.
  8. [85]
    The appellant later gave evidence that Mr Hill had authorised her to use the funds to pay for dead freight.  This was never put to Mr Hill in cross-examination.  Mr Hill gave evidence that he had only ever authorised and instructed the appellant to use his money to purchase a vessel and, later, into Mr Davey’s account.  This aspect of his evidence was never challenged.

Mr Davey

  1. [86]
    Mr Davey was Mr Hill’s friend who had offered to let him use his helicopter business’ bank account.  Mr Davey gave evidence that he had used this account to pay and receive funds for his business for approximately 20 years and that he monitored the account regularly.  He gave evidence that, following discussions with Mr Hill, he had been expecting a deposit of approximately $200,000.00 for the purchase of the boat but this deposit had never been received.

Mr Ross

  1. [87]
    Mr Ross was the complainant in relation to count three.  He had intended to purchase a motor yacht named the South Wind from the United States.  In April 2013, he agreed to pay the appellant $106,189.36 for the purchase and freight of this vessel, the details of which were recorded in a written quote from the appellant.  An amount of $95,969.29 remained to be paid and was paid in two instalments of $50,000.00 on 6 June 2013 and $45,969.29 on 7 June 2013.
  2. [88]
    Mr Ross later found out the funds had not arrived in the broker’s account.  The appellant then sent a series of emails, culminating in an email dated 12 July 2013, in which she, in effect, admits spending Mr Ross’ funds to meet her own costs.  It states (relevantly):

“… At the same time I was being pressured hourly to pay the freight on your boat as the ship refused to depart Europe until I did this so I went ahead and did this at the much lower exchange rate.

This left me very short on your boat payment to [Mr Ross] - however I had expected to make up the difference and send it through which I did manage to do with 2 new bookings for freight and then they both cancelled as the ship had been delayed.”

  1. [89]
    Mr Ross gave evidence that he never gave the appellant permission to use his money for any purpose other than to purchase the South Wind and pay for freight.  He was never able to complete the purchase or recover any of the $95,929.29 he transferred the appellant.

Mr Holden

  1. [90]
    Mr Holden was the director of US Shipping.  On 4 June 2013, Mr Holden entered into a standardised international shipping contract called a “Conline Booking Note” with the appellant for freight of vessels aboard a cargo ship, the MV Alderney.  This contract was tendered as an exhibit.  By clause 9 of the contract, the freight rate was $340,000.00.  A deposit of 30 per cent was to be paid immediately and the balance within five days of completion of loading.  There was also a $30,000.00 cranage fee.  The contract provided that a cargo lien would apply if the price was not paid.
  2. [91]
    When he signed the contract on 4 June 2013, Mr Holden sent the appellant a formal demand for payment of the 30 per cent deposit of $111,000.00.  This deposit was paid in two instalments of $50,000.00 and $50,500.00 on 10 and 12 June 2013, and evidence of these payments was tendered as exhibits.  Mr Holden testified that mate’s receipts were issued upon cargo being loaded, including for the following vessels:
    1. (a)
      the 2002 Sea Swirl 2102 on a Magic Tilt trailer (Mr Bird’s boat);
    2. (b)
      the 2006 Contender 23’ (Mr Rolle’s boat);
    3. (c)
      the 1977 Hatteras 58’ (Mr Barbagallo’s boat);
    4. (d)
      the 2003 Bertram 51’ (Mr Johnson’s boat); and
    5. (e)
      the 46’ Grand Banks (Mr Wallenburg’s boat).
  3. [92]
    Mr Holden gave evidence that the appellant utilised more cargo space than originally anticipated.  On 14 July 2013, Mr Holden rendered an invoice for the original freight charges and some additional charges totalling US$410,631.33 asking for payment within five days.  He followed up with a letter of demand on 29 July 2013.
  4. [93]
    As the freight had not been paid, US Shipping seized the cargo, including the five boats belonging to the complainants.  Each complainant was billed separately and payment was required before their cargo was released to them.  Mr Holden gave evidence that each of the complaints in counts four to eight had paid amounts directly to US Shipping to have their vessels released.
  5. [94]
    In addition, in cross-examination, Mr Holden gave evidence that five trailers had been loaded onto the Alberney on behalf of the appellant.  However, there was no information as to who they belonged to.  They were left on the Brisbane Terminal and unsuccessful efforts were made to sell them before they were destroyed.
  6. [95]
    In cross-examination Mr Holden specifically denied that the appellant had paid the freight for the complainants in relation to counts four to eight.  He testified that, apart from the two payments of $50,000.00 and $50,500.00 for the deposit, US Shipping did not receive any further payments from the appellant in relation to the freight contract.

Mr Bird, Mr Rolle, Mr Barbagallo, Mr Johnson and Mr Wallenburg

  1. [96]
    Mr Bird, Mr Rolle, Mr Barbagallo, Mr Johnson and Mr Wallenburg were the complainants in relation to counts four to eight respectively.  They each gave evidence that they had received and paid invoices rendered by the appellant to cover all charges associated with the delivery of their boats to Australia.  In addition, they each gave evidence that they had been forced to make extra payments before US Shipping would release their vessels.  In summary, the complainants testified that they incurred the following costs:
    1. (a)
      Mr Bird paid the appellant $25,857.63 for freight, GST and a Magic Tilt trailer.  He incurred extra charges in excess of $12,336.47, consisting of payments to US Shipping for freight, cranage and GST, as well as storage of his boat pending payment of freight.  In addition, he never received the Magic Tilt trailer he had paid for.  The boat was sitting on an old trailer when he picked it up.
    2. (b)
      Mr Rolle paid the appellant $25,270.02 for transport, freight, GST and a Magic Tilt trailer.  He incurred extra charges of $25,859.52. In addition, he never received the Magic Tilt trailer he had paid for, which met Australian safety standards.  The boat was sitting on a second hand trailer when he picked it up, which did not comply with Australian safety standards.
    3. (c)
      Mr Barbagallo paid the appellant $69,276.99 for components including freight, cradle supply and fit, insurance, water loading and GST.  He incurred extra charges of $20,908.80, including for freight and GST.
    4. (d)
      Mr Johnson paid the appellant $46,509.01 for components including freight, port charges, cradle supply and fit, water loading, skipper delivery alongside ship for lift, and marine cargo transit insurance.  On 20 June 2013, he received a further invoice for GST payments of $59,873.93, but he did not pay this invoice because he was concerned about a breakdown of communication with the appellant.  He later incurred extra charges of at least $65,000.00, including for freight and GST.  I note that the appellant is not liable for the GST component of these extra charges, as Mr Johnson had not paid her for GST previously.
    5. (e)
      Mr Wallenburg paid the appellant $76,148.03 for components including freight, port charges, cradle supply and fit, import preparation, skipper delivery for water loading and GST.  He incurred extra charges of $65,584.47, including for freight, customs fees and GST.
  2. [97]
    The appellant explicitly accepted that each complainant had paid her for the freight of their vessels in full.  The complainants’ evidence about the extra charges they incurred was also unchallenged.

Bank account evidence

  1. [98]
    The prosecution also called Senior Constable Julie Smith, who was one of the investigating officers in charge of the appellant’s case.  Senior Constable Smith gave evidence about the investigations police had undertaken to obtain bank account statements and other documents relating to accounts held by the appellant and Leisure Freight, including the OzForex account.  A bundle of these bank account records was tendered as an exhibit.
  2. [99]
    Significantly, the bank account records showed that deposits had been made by each of the complainants into accounts owned by the appellant and Leisure Freight at various banks.
  3. [100]
    In relation to count one, the Leisure Freight Bendigo Bank account records showed deposits made by the McBeans of $323,000.00 and $100,000.00 on 29 November 2012, $27,000.00 on 30 November 2012, and $65,000.00 on 3 December 2012.  These deposits totalled $515,000.00.  Throughout this period, there were a number of withdrawals that reduced the balance of the account to below the amount paid into the account by the McBeans.
  4. [101]
    In relation to count two, the OzForex statements showed that the initial $22,913.88 deposit paid by Mr Hill was remitted to the specified beneficiary “1 World Yachts”.  By contrast, the further sum of $191,943.13 transferred by Mr Hill was remitted without a beneficiary being specified.  This resulted in the funds being remitted automatically back into the appellant’s bank account on 27 December.  This permitted her to immediately deposit $274,000.00 into her overdraft facility, bringing it into credit.
  5. [102]
    In relation to count three, the Leisure Freight Western Union bank account records showed that Mr Ross had made two deposits of $50,000.00 and $45,969.29 on 6 and 7 June 2013 respectively.  I note that payment records tendered through Mr Holden showed deposits of $50,000.00 and $50,500.00 from the Leisure Freight Western Union account to Mr Holden’s account made on 10 and 12 June 2013.
  6. [103]
    In relation to counts four to eight, the records showed that the appellant had not made payments to Mr Holden or US Shipping that corresponded with the amounts that each complainant had transferred to her.  The prosecution provided a table summarising the financial evidence in relation to counts four to eight as follows:

Count

Amount paid

Paid from

Paid to

Disbursement in amount of payment

Four: Mr Bird

$2,907.76

 

Mr Bird’s account

Leisure Freight Bendigo Bank Account

Not identifiable

$30,756.56

Mr Bird’s account

Leisure Freight Bendigo Bank Account

Not identifiable

$5,503.27

Mr Bird’s account

Leisure Freight Western Union Account

Not identifiable

$6,272.88

Mr Bird’s account

Leisure Freight Bank of Queensland Account

Not identifiable

Total: $45,440.57

Five: Mr Rolle

$4,853.90

Mr Rolle’s account

Leisure Freight Bendigo Bank Account

Not identifiable

$55,251.17

Payment by Mr Rolle’s financial advisors from his cash account

Leisure Freight Bendigo Bank Account

Not identifiable

$13,750.63

Mr Rolle’s account

Leisure Freight Bank of Queensland Account

Not identifiable

Total: $73,855.70

Six: Mr Barbagallo

$19,269.40

Mr Barbagallo’s account

Leisure Freight Bendigo Bank Account

Not identifiable

$21,117.82

Mr Barbagallo’s account

Leisure Freight Western Union Account

Not identifiable

$28,829.77

Barbagallo family trust account

Leisure Freight Bank of Queensland Account

Not identifiable

Unspecified withdrawal of $29,102.54 on the same day and deposited back three days later

Total: $69,276.99

 

Seven: Mr Johnson

$20,079.26

Mr Johnson’s account

Leisure Freight Bendigo Bank Account

Not identifiable

$26,429.81

Mr Johnson’s account

Leisure Freight Western Union Account

Not identifiable

Total: $46,509.07

Eight: Mr Wallenburg

$21,479.68

Mr Wallenburg’s account

Leisure Freight Bendigo Bank Account

Not identifiable

$34,668.35

Mr Wallenburg’s account

Leisure Freight Bank of Queensland Account

Not identifiable

Total: $ 56,148.03

  1. [104]
    More generally, the bank account records showed that the appellant’s business was in dire financial straits, with overdrawn accounts.  The prosecution submitted that the jury should find that the appellant used payments from the complainants in relation to counts one to three to prop up her business.

The appellant’s case

The appellant’s evidence

  1. [105]
    The appellant gave evidence for over four days.  Her evidence was at times confusing and difficult to follow.  The key points may be summarised as follows.
  2. [106]
    The appellant’s case in relation to count one was that she had been improperly charged for dead freight by the shipping company.  She gave evidence that she had booked a space aboard the BBC Arizona for the boat the McBeans intended to buy (the Ninoska) through BDL Logistics and BBC Charters.  When the McBeans changed their minds about buying the Ninoska, BBC Charters improperly charged her for dead freight.  When the appellant met with the McBeans on 19 March 2013, she asked them for permission to use their money to pay the dead freight, which they gave.  To thank them for agreeing to pay the dead freight the appellant then signed the mortgage over her home.  She thought the dead freight charged was extortionate and commenced civil proceedings against BBC Charters to get the McBeans their money back.
  3. [107]
    The appellant disputed several of the email exchanges between herself and the McBeans.  She stated that some emails were wrong, cut and pasted or doctored and, at one stage, stated that she assumed this was done to back up their version of events.  These emails were tendered through the McBeans and the appellant never squarely put these allegations to them in her cross-examination.  In her closing address, the appellant told the jury the following:

“The truth of the matter is that I did, indeed – my emails are genuine. I did, indeed, talk to them about the dead freight issue and they did, indeed, give me their permission to pay the dead freight, and I did it on that basis. And I also, at that stage, I didn’t know how much it was going to be and – but I did pay the dead freight. But I’d also made a commitment, and a very strong commitment, that I would be doing everything in my power to recover that money because I thought it was incredibly unfair. Don’t think for one minute I didn’t care about, you know – I felt really bad for them but I also felt bad for me. For every dollar that others put in, I probably put in $2, and there were 18 other people that were affected that paid their freight twice, and they were also hit with other charges. So the McBeans did not pay anybody else’s charges but their own. The other 18 people paid their wage, as well. In reality, BBC Charters collected 1.3 million on a $540,000 invoice, so it was outrageous.”

  1. [108]
    In relation to count two, the appellant’s case was that Mr Hill missed the December window to have his boat checked for seaworthiness and to be imported into Australia, as the boat became “winterised” and she did not hear from him until January 2013.  She states that she was contacted in February 2013 by the Hills to let her know that they had pushed the boat purchase to April.  The appellant states the Hills came to see her in February or late March 2013 and she raised with them that BBC Charters intended to charge them dead freight on their boat.
  2. [109]
    She claimed that Mr Hill gave her permission to use his money to pay dead freight charged by BBC Charters.  This, she states, was an oral agreement.  The appellant stated that she sent Mr Hill an email confirming the arrangement, but she cannot produce the email, as the sent emails on her Leisure Freight computer were corrupted.
  3. [110]
    The appellant also disputed the timing of certain emails in relation to count two. In addition, she claimed that, contrary to Mr Hill’s evidence, there was a Bank of America branch at 100 West 33rd Street.
  4. [111]
    In addition, the appellant claimed that Mr Davey’s account never existed and that she felt uncomfortable transferring Mr Hill’s money into a third party account.  This was never put to Mr Hill.  However, Mr Davey gave evidence that his account existed and he had used it for his business for approximately 20 years.  A statement from the account was tendered as proof that it existed.
  5. [112]
    The appellant testified that Mr Ross’ money had been transferred to the US Shipping account as a result of an honest and reasonable administrative error and she had raised that with Mr Holden.  She gave evidence that Mr Ross had entered into multiple contracts on various boats around January or February 2013.  He was putting offers on other boats, but came back to the South Wind in late May 2013.  On 6 May 2013, her secretary spoke to Mr Ross and then copied a February invoice forgetting to check the exchange rates.  There was an error with this invoice and, ultimately, Mr Ross’ money that was supposed to go to 1 World Yachts for his boat went to Mr Holden’s company, US Shipping.
  6. [113]
    The appellant claimed that Mr Holden had told her the money would be returned and he would sort this issue out.  The appellant asked Mr Holden to send these funds directly to the broker in the Unites States for Mr Ross’ boat.  However, Mr Holden failed to do so.  In addition, the appellant claimed that she had never written the email tendered during Mr Ross’ evidence in which she admitted that she had misapplied his funds to pay for business expenses.
  7. [114]
    In relation to counts four to eight, the appellant’s case was that she had paid Mr Holden in full for the freight and there were no extra charges owing.  The appellant’s assertions in each case were not backed up by any documentary evidence.
  8. [115]
    In relation to counts four and five and the trailers purchased by Mr Bird and Mr Rolle, the appellant claimed that the trailers were purchased and loaded.  She stressed that Mr Bird and Mr Rolle had given evidence that they had not received any calls from Mr Holden about their trailers, despite Mr Holden’s claims that he had attempted to locate the owners of the five unidentified trailers left at the port.

Mr Bird and Mr Rolle

  1. [116]
    The appellant recalled Mr Bird and Mr Rolle to give evidence in her defence about the issue of the trailers they had purchased from her.  Her examination of these witnesses was very brief, and the witnesses were not cross-examined.  Both Mr Bird and Mr Rolle gave evidence that they had never received a phone call from Mr Holden offering him a new trailer free of charge or for a couple of thousand dollars.

Consideration: verdict not unreasonable or unsupported

  1. [117]
    In determining whether a verdict is unreasonable or cannot be supported having regard to the evidence, 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 each of the eight offences.
  2. [118]
    In undertaking that assessment, due regard must be given to the jury’s role as the ultimate arbiter of facts, 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.
  3. [119]
    Where in order to be satisfied beyond reasonable doubt of guilt, it is necessary for a jury to accept that a witness is reliable and credible, the Court presumes the jury did accept that witness as reliable and credible.
  4. [120]
    As the Court of Appeal stated in the recent case of R v Miller (“Miller”),[19] the appellant bears a heavy burden when relying on the ground that the verdict was unreasonable.  An appellant who contends that the verdict of the jury was unreasonable, or that it was unsupported by the evidence, must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.[20]
  5. [121]
    In this case, the appellant gave evidence.  In Miller, the Court made the following observations about such cases:

[34] In the ordinary case, the credit of an accused who gives evidence will be in issue and it is for the jury to determine that question. It is elementary that the performance of its functions by a court of criminal appeal does not involve the substitution of trial by an appeal court for trial by a jury and so the appeal court is unable to, and should not, seek to duplicate the function of the jury by assessing that a witness was credible. Indeed, in most cases it is forbidden…”[21]

  1. [122]
    In addition, the Court of Appeal in Miller observed that if an accused person gives evidence and is found guilty, that verdict necessarily implies that the jury rejected their evidence as untrue.  Their evidence can then hardly form a rational basis for a conclusion that the jury’s verdict was unreasonable, unless there was something in that evidence which the jury was not entitled to reject.[22]
  2. [123]
    In this case, the jury had the benefit of seeing the appellant and other witnesses give evidence.  It was specially placed to determine whether the appellant’s version of events was credible.  The jury clearly rejected the appellant’s evidence.  They were entitled to do so.  There was nothing in her evidence which the jury were not entitled to reject.
  3. [124]
    Putting the appellant’s evidence to one side, the evidence led by the prosecution was capable of establishing the appellant’s guilt beyond a reasonable doubt on each count.
  4. [125]
    During her closing address to the jury, the appellant characterised her case as a “he said, she said” dispute.  As the Crown prosecutor rightly pointed out, that was not the case.  The evidence given by the prosecution witnesses, and the prosecution case more generally, was supported by a considerable body of bank statements, emails and other documents.  Where the appellant claimed that these documents were falsified, the jury was entitled to reject those submissions.
  5. [126]
    In relation to counts one and two, each complainant gave clear evidence that they had entrusted the appellant with their funds for the sole purpose of using them to purchase vessels or pay freight.  There was evidence in relation to both counts that the appellant had made misrepresentations about where the funds were and when they would be returned to the complainants.  In addition, in relation to count one, the McBeans gave evidence that the appellant had orally admitted to using their money to pay business expenses, and there was evidence of a handwritten note she had signed to guarantee repayment.
  6. [127]
    In relation to count three, the appellant accepted that Mr Ross’ funds had not been used as directed.  She asserted at the trial that this was an administrative mistake. However, there was evidence that the appellant sent an email admitting to using the funds to meet her own business expenses.  The jury rejected the appellant’s evidence of an administrative error.  The timing of the deposit of Mr Ross’ funds and the payment of the deposits of the complainants, coupled with the state of the appellant’s various bank accounts, raised a strong inference that the appellant had used Mr Ross’ funds without his permission to pay Mr Holden in relation to counts four to eight.
  7. [128]
    In relation to counts four to eight, in each instance the jury were entitled to find that the complainants had incurred loss because the appellant had either failed to retain their funds to pay their freight and related charges, or had never intended to use their funds for that purpose.  On either basis, the jury were entitled to conclude that the appellant had been dishonest in her dealings with each complainant and that each complainant had suffered pecuniary loss as a result.  The prosecution case in relation to these counts was supported by a considerable body of documentary evidence, including the appellant’s bank records.
  8. [129]
    In relation to counts four and five, even if the jury was left with a doubt about whether the appellant was responsible for the trailers not being supplied, in each count that was only part of the pecuniary loss alleged to have been caused through the appellant’s dishonesty.  A doubt about this aspect of the evidence would not lead to a reasonable doubt in relation to the appellant’s guilt on either count.
  9. [130]
    In my view, upon the whole of the evidence relevant to each count, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the eight offences.

The trial judge’s summing up

  1. [131]
    In my view, the trial judge’s summing up was deficient in two respects:
    1. (a)
      it failed to identify the relevant aspects of the appellant’s knowledge on which the prosecution case on dishonesty was based; and
    2. (b)
      it failed to give the separate charges direction.
  2. [132]
    Neither the prosecutor nor the appellant sought such directions.  Counsel have a duty to listen carefully to the judge's directions to the jury and to try to ensure that all necessary directions are given.[23]  In this case, the appellant did not have counsel and was self-represented.  Nevertheless, any failure to ask for an essential jury direction, will not be fatal to the success of a ground of appeal if the failure to give the direction amounts to an error of law or has resulted in a miscarriage of justice.[24]

Dishonesty directions

  1. [133]
    The appellant contends that the trial judge failed to identify the knowledge, belief or intent which was said to render her actions dishonest and to instruct the jury to decide whether the accused had this knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest.
  2. [134]
    The respondent’s submissions on this issue were extremely limited.  The issue was not addressed in written submissions.  In oral submissions, the most the respondent said on the issues was the following:

“Ms Lyons also made submissions at page 28 of her outline concerning the judge’s directions on the element of dishonesty.  My submission is the judge’s directions on dishonesty were conventional and in accordance with the bench book.”

  1. [135]
    The trial judge’s directions in relation to dishonesty did comply with the Queensland Supreme and District Court Bench Book (“the Bench Book”).  Overall, the directions given to the jury in relation to the elements of the offence, dishonesty and the prosecution case were very brief.  The relevant passages of the summing up are as follows:

“So I will take you now to the elements of the offence of fraud. So this applies to all eight counts. And, in this case, the prosecution must prove that the defendant caused a pecuniary loss to the complainant in respect of each of the charges. Pecuniary relates to money, of course. And loss, I think, is self-explanatory and needs no elucidation by me. That is the first element. The second element is that the action of the defendant must have been done dishonestly. So they are the two elements for the charges that you are considering. I will just read them to you again. That the defendant caused a pecuniary loss to the complainant and the action of the defendant must have been done dishonestly.

Now, 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.  In respect of, of course, counts 1 to 3 inclusive and 6 and 8, there is also the circumstance of aggravation, that the property was of a value of more than $30,000. So those are the elements, ladies and gentlemen.

Now, in respect of counts 1 and 2, the Crown says that the – or the prosecution says that the defendant used the moneys handed over by the complainants for purposes other than that which was authorised by the complainants. Perhaps due to financial difficulties. The defendant says that she was expressly authorised by the McBeans, in respect of count 1 and Mr Hill in respect of count 2, to use their moneys in the ways that she did. Now, as I have already said, if you accept her evidence in that regard, then the Crown would not have proved that the defendant acted dishonestly and you would acquit in respect of the charge that you are considering. If you have a reasonable doubt as to whether the complainants provided that authority, in respect of each charge, to the defendant or not, then, once again, dishonesty would not have been proved beyond reasonable doubt and you would acquit.

If you conclude, however – well, if you conclude beyond a reasonable doubt, however, that the McBeans and Mr Hill did not authorise the defendant to use their moneys in any way other than that which was originally intended, then you may convict. But remember that, in such a circumstance, you would need to be satisfied beyond reasonable doubt that the defendant dishonestly caused a pecuniary loss. You would need to go back to the evidence that you do accept and assess those elements in respect of that evidence.

Now, I was intending, prior to Mr Finch’s address to you, ladies and gentlemen, to remind you of the evidence relating to those conversations that were said to have taken place between the McBeans and the defendant and Mr Hill and the defendant, but Mr Finch read all the passages that I was intending to read to you during the course of his address to you. For that reason, I do not intend to read it all again to you a second time, but if you wish to be reminded of any of those passages, or if you wish to be reminded of any of the evidence that has been given in the course of this trial, you merely need send a note through the bailiff to me identifying roughly what you are after and we will arrange for that passage of evidence to be read back to you.

In respect of count 3, of course, the defendant gave evidence that the money that Mr Ross paid over was, due to administrative error, onforwarded to US Shipping by mistake. Once again, if you accept her evidence in that regard, or if it causes you to have a reasonable doubt as to what actually happened or occurred, then you would acquit because the Crown would not have established dishonesty beyond reasonable doubt. If you reject her evidence, and it does not cause you to have a reasonable doubt as to what actually occurred, then, once again, you would turn your mind to the evidence which you do accept and, based upon that evidence, determine if the Crown had proved each of the elements of that offence beyond reasonable doubt.

And, of course, you must adopt the same approach to the evidence that is relevant to each of counts 4 to 8 inclusive. In respect of counts 4 to 8, of course, you have heard from the defendant in evidence whereby she has said the moneys that were received were onforwarded appropriately. But you have also heard the evidence of Mr Holden and you have been reminded of other evidence which is said to be relevant to those issues during the course of addresses.”

  1. [136]
    The meaning of dishonesty has been accepted as explaining an intention to defraud.[25]  In Peters v The Queen (“Peters”),[26] Toohey and Gaudron JJ stated:

“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.”

  1. [137]
    These observations were cited with apparent approval by Gleeeson CJ, Gummow and Hayne JJ in Macleod v The Queen,[27] and were noted by Morrison JA in R v Perrin.[28]
  2. [138]
    In R v Orchard,[29] Gotterson JA referred to Peters and stated:

“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.”

  1. [139]
    In R v Orchard, Gotterson JA stated, by reference to the Crown prosecutor’s address (which was summarised by the trial judge for the jury), that the trial judge sufficiently identified the relevant aspects of the appellant’s knowledge on which the prosecution case on dishonesty was based.[30]  Here, this was not even done.
  2. [140]
    Peters requires the trial judge to identify and then instruct the jury about an accused’s knowledge, belief or intent.  That was not done in this case.
  3. [141]
    In this case, the trial judge referred to the prosecution case in relation to counts one and two.  For the other charges it could not be said that the trial judge’s very brief summing up, without any reference to the prosecutor’s address, sufficiently identified for the jury the relevant aspects of the appellant’s knowledge on which the prosecution case on dishonesty was based.
  4. [142]
    In my view, taking the trial judge’s summing up as a whole, it could not be said that the jury were given any assistance by the trial judge to identify the knowledge, belief or intent which was said to render the appellant’s acts in relation to each count dishonest.  The jury was not given any instruction to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest.  This amounts to an error.
  5. [143]
    I note that the Bench Book’s direction for fraud does not refer to Peters.  In my view, the Bench Book’s direction for fraud is deficient in this respect.  Incidentally, the Bench Book does refer to the Peters requirements in the footnotes of the direction for the claim of right defence in section 22(2) of the Criminal Code.
  6. [144]
    In my view, it was an error for the trial judge not to identify and instruct the jury about the relevant aspects of the appellant’s knowledge, belief or intent on which the prosecution case of dishonesty was based.

Separate consideration of charges

  1. [145]
    The appellant faced eight charges, each involving separate complainants.  These charges formed part of a series of similar character.  They were closely connected, temporally and in subject matter, and so were properly joined.
  2. [146]
    In R v Doolan (“Doolan”),[31] McMurdo P stated that, almost invariably whenever charges are joined, it is incumbent on the trial judge to direct the jury to consider each charge separately and evaluate the evidence in relation to that charge to decide whether each juror is satisfied beyond reasonable doubt that the prosecution has proved the elements of the charge.[32]
  3. [147]
    The Bench Book sets out the following direction for when a jury has to consider separate charges:

“Separate charges are preferred. You must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved its essential elements. You will return separate verdicts for each charge.

The evidence in relation to the separate offences is different, and so your verdicts need not be the same.”[33]

  1. [148]
    In this case, the trial judge did not give this direction and neither party sought it.
  2. [149]
    The appellant’s submissions on this issue at the appeal were scant, did not address the relevant issues, and are of little or no assistance.  The respondent did not address this issue at all until the Court specifically asked for submissions on the issue.
  3. [150]
    The respondent submits that a separate consideration of each charge is a standard direction where there is a risk of a miscarriage of justice from a jury impermissibly considering the case against an accused globally (i.e. reasoning that conviction on one count leads to guilt in relation to all counts).[34]
  4. [151]
    However, the respondent submits that the suggested formulation of the separate consideration direction suggested in the Bench Book is not mandatory.[35]  The respondent submitted that R v Ngwira (“Ngwira”)[36] demonstrates that the magnitude of the risk of impermissible reasoning informs the nature and content of the directions required.  In Ngwira, the offender was charged with three offences in relation to the same complainant: rape; in the alternative to rape, indecently interfering with a dead human body; and murder.
  5. [152]
    The offender in Ngwira did not dispute that his actions caused the death of the deceased.  His evidence was that, after consensual sexual foreplay between himself and the deceased, he made a comment about her body and she became angry and attacked him.  His evidence was that, in response to her attack, he restrained her using a chokehold around her neck.  The offender said that, because of his restraint around her neck, the deceased went limp and stopped breathing.  Realising that he caused her death, the offender panicked and staged the scene to make it appear that the deceased had committed suicide.  He then lied to police, telling them that he was not involved in her death.  The jury rejected his evidence and convicted him of rape and murder.[37]
  6. [153]
    On appeal, it was submitted that the trial judge failed to give the jury a separate consideration of charges warning in accordance with the Bench Book; they were not given a direction that they must consider counts one and two separately from count three, and it was open for them to deliver different verdicts for the two sets of offences.[38]
  7. [154]
    Flanagan J (with whom Sofronoff P and Philippides JA agreed) determined that, in the circumstances, the trial judge adequately directed the jury as to the relevant aspects of the separate consideration direction.  It was noted that, not only were the elements of the offence different, the issues were also different, and the danger of the jury engaging in impermissible reasoning did not arise.  Further, unlike in the present case, the evidence was admissible on all counts, as the offences arose out of one continuous course of conduct.  In such circumstances, there was no real possibility for the jury to engage in impermissible reasoning.[39]
  8. [155]
    As the evidence was admissible on all counts, the jury were entitled to take into account the evidence of the rape in considering the issue of motive for the murder count.  It was not suggested that a propensity direction was required in the circumstances, as it was “almost impossible to see that there was any danger of propensity reasoning”.[40]
  9. [156]
    Flanagan J stated that any danger of the jury impermissibly reasoning that a person who committed rape was more likely to commit murder was sufficiently addressed by the directions given by the trial judge.  When the structure and content of the summing up was properly analysed, it was apparent that the trial judge communicated the essence of the separate consideration direction (i.e. the jury was left in no doubt that each charge had to be considered separately and that they had to return separate verdicts for each charge).  The directions also made it clear that their verdicts need not be the same.  The summing-up was structured in such a way that there was no danger of the jury using a conviction on one count to impermissibly reason guilt on the other.[41]
  10. [157]
    Flanagan J accepted that it would have been obvious to the jury that their verdict on the rape or interference charge need not have been the same as the murder or manslaughter charge.[42]
  11. [158]
    The respondent submits that, in the context of the issues in the appellant’s trial, the summing up, taken as a whole, effectively brought each of these matters home to the jury.  The trial judge:
    1. (a)
      identified the differing issues for determination in relation to each charge; and
    2. (b)
      made it clear separate verdicts had to be returned for each charge.
  12. [159]
    The respondent submits that the following directions made it clear that the jury had to consider each charge separately:
    1. (a)
      in respect of each charge the jury must reach a unanimous verdict;
    2. (b)
      the jury must reach their verdict in respect of each charge based on the evidence which is the witness’ evidence and the exhibits tendered;
    3. (c)
      the appellant is presumed innocent and may only be convicted if the prosecution establishes that she is guilty, beyond a reasonable doubt, of the offence under consideration;
    4. (d)
      each and every element that makes up the charge must be proven beyond reasonable doubt;
    5. (e)
      it is upon the whole of the evidence that the jury must be satisfied beyond reasonable doubt that the prosecution has proved the case in respect of each charge;
    6. (f)
      if the jury found that the appellant is credible and reliable and provided a satisfying answer to the prosecution case, then their verdict would be not guilty in respect of the charge under consideration;
    7. (g)
      the jury did not have to be satisfied that the appellant was telling the truth before she could be acquitted of any count;
    8. (h)
      if the jury found that the defence evidence was not convincing and left them in a state of reasonable doubt as to the true position, then their verdict would be not guilty; and
    9. (i)
      if the jury found the appellant’s evidence should not be accepted, then they should be careful not to jump from that view to an automatic conclusion of guilt. The jury should then go back to the rest of the evidence and ask whether, on a consideration of the evidence that is accepted, they are satisfied beyond reasonable doubt that the prosecution has proved each of the elements in question.
  13. [160]
    In this case, the respondent submits that the risk of impermissible global reasoning was barely existent considering how the appellant chose to litigate her case.  That is, there was no dispute that each complainant had paid monies to the appellant’s company in the amounts testified to by each complainant and that each complainant had suffered financial loss of all or some of those monies.  The crucial issue was how that loss had been occasioned and whether the appellant had been proven to have dishonestly caused that loss.
  14. [161]
    The respondent submits that the trial judge’s directions made it clear, in determining this crucial issue, that different evidential considerations arose in relation to each count.  Those considerations were whether the prosecution had proved:
    1. (a)
      in relation to count one, that Mr and Mrs McBean had not given the appellant permission to use their money to pay her dead freight bills;
    2. (b)
      in relation to count two, that Mr Hill had not given the appellant permission to use his money to pay her freight bills;
    3. (c)
      in relation to count three, that Mr Ross’ money had not been paid to Mr Holden through administrative error; and
    4. (d)
      in relation to counts four to eight, that the funds received from each complainant had not been appropriately applied to pay for freight or buy trailers.
  15. [162]
    The respondent submits that the trial judge did identify these issues in his summing up and that the identification of these issues and this evidence by the trial judge effectively precluded impermissible global reasoning.  The respondent submits that the more obviously discreet the factual issues for determination between the charges are, the less explicit the directions need to be.
  16. [163]
    In this case, as in Ngwira, the respondent submits that the issues in relation to each count were separate.  Although the counts were of similar legal character, the factual circumstances giving rise to each of the eight charges were so disparate that the jury could not engage in inappropriate global reasoning.
  17. [164]
    In the circumstances of this case, the respondent submits that express directions to consider the evidence in support of each charge separately would have been bound to confuse and confound the jury, as the appellant’s credibility was relevant to all counts.  The trial judge avoided this complexity by focusing the element of dishonesty in relation to each count and giving standard directions as to credit.
  18. [165]
    The respondent submits that it would be wrong for the jury to simply silo the appellant’s evidence in relation to each charge and not consider the entirety of her evidence when assessing her credit.  The respondent posed this proposition: if the jury thought that the appellant was not being honest in relation to count one, then they were surely entitled to have regard to that in relation to count two.
  19. [166]
    The respondent acknowledges that the trial judge’s directions could have gone further, but submitted that once the jury decided that things happened in a particular way, then:

“…there was really only one logical conclusion they could reach and it wouldn’t have been driven by not considering the counts separately.  It would’ve been driven by, well, there’s this overhang of dishonesty or this overhang of behaviour in relation to these funds which satisfies that in each case, that it was dishonest.”

  1. [167]
    The trial judge’s directions, the respondent submits, read in the context of the trial issues, were adequate to preclude any miscarriage of justice.
  2. [168]
    The jury were required to consider the eight charges of fraud alleging that the appellant dishonestly caused pecuniary loss to a named person on divers dates.  Each charge had a different complainant and the evidence founding each charge was not cross-admissible with the other charges.  However, it was alleged that all offences occurred against the background of the appellant being in financial trouble and the prosecution case was that the appellant was using the funds provided by one complainant to meet her own immediate needs.  There was some connection between the charges; in relation to count three, it was alleged that the funds she received from Mr Ross were used to pay the 30 per cent deposit required for shipping the complainants’ boats for counts four to eight.  As the Crown prosecutor told the jury in his address:

“MR FINCH: She’s, in effect, using money from one client given to her for one purpose to meet her other immediate needs here and hoping to get more money in from another source to replenish the first client’s funds and you might think that’s exactly what’s happened to Allan Ross. His money was used for some other purpose without his knowledge and it was lost to him.

Now, that, ladies and gentlemen, is dishonest, even more so when you think about the chronology in this case, what has already happened with the McBeans and Clifford Hill. $640,000-odd, if you accept the evidence you had heard in respect of those counts, which has already been used. The financial position by the time you get into June and July when this is occurring – Ms Lyons must have known before she has embarked on all of these transactions the position was hopeless. There was no way that she was going to be able to make good on her commitments and meet her end of these bargains.”

  1. [169]
    Ordinarily, every criminal charge should be charged and tried separately.  Joinder of charges is permitted when, as in this case, the offences are of the same or similar character.[43]  However, the fact remains that, although the counts were properly joined, the trial effectively consisted of eight trials, each involving one count.  The appellant was entitled to have the jury consider the evidence on each count separately and return separate verdicts.
  2. [170]
    The trial judge did not give the separate charge direction pursuant to the Bench Book.  This direction has important work to do in framing the jury’s consideration of the case against an accused for each charge.  The separate consideration of charges direction is necessary where there is a risk a jury may undertake impermissible reasoning in considering the case globally; i.e. by not considering each charge separately, and using a conviction on one count to impermissibly lead to a guilty verdict in relation to other counts.[44]
  3. [171]
    The trial judge did not direct the jury in those terms and the failure to do so was an error.
  4. [172]
    When considering the content and structure of the summing up it is clear that the trial judge did direct the jury about:
    1. (a)
      the different issues for determination in relation to each charge; and
    2. (b)
      the fact that separate verdicts were required for each charge.
  5. [173]
    As in Doolan, nowhere did the trial judge tell the jury to consider each count separately and to consider only the evidence relevant to each count, nor did he tell them that they could return separate verdicts, and that if they convicted on one count, they should not take that into account in considering the other counts.  In my view, the failure to do so, in the circumstances of this case, was an error.
  6. [174]
    The appellant disputed different aspects of each complainant’s evidence.  However, in general terms, the effect of her evidence can be divided into three broad categories of claims about why her actions were not dishonest:
    1. (a)
      in relation to count one and two, she had the complainants’ permission to use their money to pay dead freight;
    2. (b)
      in relation to count three, there was an administrative error; and
    3. (c)
      in relation to counts four to eight, she provided each of the complainants’ funds to Mr Holden.
  7. [175]
    The appellant’s credibility was relevant to all counts and, when assessing her evidence in relation to each charge, the jury were entitled to consider her credibility as to her explanations, by reference to the entirety of her evidence.  However, the fact that the appellant’s credibility was relevant to all counts, did not absolve the trial judge from directing the jury in accordance with the Bench Book about separate charges.  Such a direction would not, as the respondent contends, confuse and confound the jury.  Indeed, because the appellant’s credibility was relevant to all counts, it was even more important for the jury to be directed that “the evidence in relation to the separate offences is different, and so your verdicts need not be the same”.  To not provide such a direction left open the risk of impermissible global reasoning.
  8. [176]
    The absence of directions from the trial judge as to how to correctly approach their deliberations concerning the eight counts in the one trial left open the real possibility that the jury may have considered that, because they found the appellant was guilty on one count and did not find her evidence credible in relation to that count, that she must also have been guilty on the other counts.  The absence of such a direction left the risk that the jury could use a conviction on one count, with a concertina effect, to impermissibly lead to a guilty verdict in relation to other charges.

The trial judge’s conduct during the trial

  1. [177]
    The appellant makes a number of outrageous allegations against the trial judge, including, for example that his Honour:

“… made many statements that were plainly wrong and times obnoxious about the appellant’s cross examination and defence which can be shown in the remaining pages of the transcript that were missed by [the trial judge] when he caused them to be edited 860 times with 20 hours 2 minutes 12.39 seconds edited and deleted from the audio files and trial transcripts.”

  1. [178]
    Such an egregious, unfounded allegation reflects a common flavour of complaints made by the appellant about the trial judge; all without any substance.
  2. [179]
    The appellant alleges that the trial judge was abrupt, terse and discourteous towards her during the trial.  She alleges that he bullied and belittled her, including by interrupting her excessively, and threatening her with contempt and a longer jail sentence.  In addition, the appellant submits that the Court should make a finding of actual or apprehended bias on behalf of the trial judge.  In particular, the appellant makes allegations including that:
    1. (a)
      the trial judge spoke 4,476 times, talking over the appellant 1,576 times and telling the appellant that civil matters had nothing to do with the criminal charges a further 942 times;
    2. (b)
      the trial judge interrupted the appellant during her cross-examination of prosecution witnesses;
    3. (c)
      the trial judge was disparaging of the accused’s evidence, telling her to “get on with her story” during her evidence; and
    4. (d)
      the trial judge made a joke at the appellant’s expense in front of the jury when she attempted to show a witness a document, saying the document “could introduce Donald Duck for all I know”, which prompted derisive laughter from the jury.
  3. [180]
    The appellant submits that the trial judge’s conduct hampered her ability to mount a defence, was prejudicial to the jury and caused a miscarriage of justice.
  4. [181]
    The appellant also submits that the trial judge erred in refusing to present a number of documents to the jury on the basis that they were not admissible and witnesses in criminal trials must give their evidence orally.  The documents that she submitted should have been left to the jury included charts showing transactions that allegedly proved her innocence, and documents concerning related civil proceedings.
  5. [182]
    During the trial, the appellant continually disregarded instructions by the trial judge about what constituted admissible evidence.  For example, the appellant repeatedly tried to tender documents referring to related civil proceedings, including statement of claims and defences filed in those matters.  None of these documents were admissible in the appellant’s criminal trial.  It appears that the appellant misunderstood the rules relating to the admissibility of evidence.  The trial judge explained basic principles concerning the admissibility of evidence to the appellant on a number of occasions, including the process for tendering a document as an exhibit, the need for documents to be relevant, the need for the witness to have personal knowledge of the document, and the rule against hearsay.
  6. [183]
    The trial judge correctly informed the appellant about how the appellant could, and could not, use any documents relating to other civil proceedings:

“HIS HONOUR: Ms Lyons, I just wanted to mention to you, you seem to be under some misapprehension that just because something else happened in another courtroom on another date, whatever happened there becomes evidence in this trial, and that is not the case. Any document that arose in that matter may be something about which you can cross-examine on, but it would depend upon the witness. If it was the document of a particular witness, then you would cross-examine or could cross-examine that witness. If it was a statement made in proceedings, then cross-examination of that witness might be able to occur.

HIS HONOUR: If a witness heard somebody else say something, perhaps that would be admissible, depending upon circumstances. But just because it happened in another courtroom does not make it evidence in this trial. Do you understand that?”

  1. [184]
    Despite such instruction, and the trial judge informing the appellant on many other occasions about the rules of admissibility of evidence, the appellant continually persisted in raising reference to these civil proceedings in an improper way.  At one stage, when giving evidence, the appellant told the jury that a default judgment had been entered against her by Mr Hill.  The trial judge had to then direct the jury in the following terms:

“Ladies and gentlemen, the fact that there was a civil proceeding and there might have been a judgment or a default judgment that was entered does not form part of the evidence before you that would be relevant for your considerations. Civil proceedings are entirely [different] creatures to criminal proceedings. They involve different standards of proof. You have no idea what the allegations were, what the evidence was. It is evidence that really should not be before you, because it is of absolutely no relevance to anything in this trial. So you can simply disregard that evidence. You do not draw an adverse inference against Ms Lyons because the default judgment was entered. You do not draw any inference because of that evidence. It is simply not relevant to anything in this matter?”

  1. [185]
    The trial judge was correct to do so.
  2. [186]
    The trial judge made many rulings which affected the conduct of the appellant’s case.  In my view, the appellant has not referred to any errors made by the trial judge in relation to the admissibility of evidence or the conduct of her case.
  3. [187]
    The appellant was self-represented, and the trial judge appropriately and correctly gave her assistance to properly conduct her case.  It is fair to say that the appellant’s conduct tested the trial judge’s patience at times.  However, in my view, the trial judge’s conduct was in no way inappropriate.  The appellant’s repeated attempts to adduce inadmissible evidence, ask objectionable questions in examination and cross-examination, and her fundamental misunderstanding of a number of court procedures put the trial judge in the difficult position of having to interrupt her on a number of occasions in the presence of the jury.  Despite this, the trial judge exercised a great deal of patience with the appellant.
  4. [188]
    In my view, the appellant’s allegations about the trial judge’s conduct are unfounded.

Conduct of the prosecution case

  1. [189]
    The appellant makes several serious allegations about the conduct of the prosecution case, particularly the behaviour of the prosecutor.  Again, these allegations are all without foundation.  In particular, the appellant alleges that the prosecutor:
    1. (a)
      made inflammatory remarks, was derisive and laughed at her;
    2. (b)
      zealously pursued a conviction at any cost rather than attempting to establish the truth;
    3. (c)
      failed to call all material witnesses, including the appellant’s ex-partner, BBC Charters and HWL Ebsworth Lawyers;
    4. (d)
      acted improperly in his cross-examination of the appellant, including by putting it to her that she was brazenly dishonest; and
    5. (e)
      raised “technical” points about the admissibility of the appellant’s evidence and “fancy defences”.
  2. [190]
    In R v Smith,[45] McMurdo P set out the role and obligations of a Crown prosecutor:

[38] The role of prosecuting counsel is one of institutional significance in the criminal justice system. It differs from that of an advocate representing an accused person in a criminal matter or a party in civil litigation. A prosecutor represents the state. They should make any evidence which could be in the interests of an accused person available to the accused person or their counsel. Their duty is not to obtain a conviction by all or any means. It is to fairly and impartially place before the jury all relevant reliable evidence. They should then address the jury as to how to use this evidence according to law when they deliberate to consider their verdict so that the jury can carry out their function of administering justice according to law and reaching a true verdict on the evidence: see R v Hay and Lindsay, cited more recently with approval by this Court in R v M. Prosecuting counsel must not adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused person. That does not mean that in properly carrying out the role the prosecutor's cross-examination and jury address must be bland, colourless and lacking in the advocate's flourish: R v Roulston; R v M and R v Daye. (citations omitted)”

  1. [191]
    In this case, the prosecutor acted consistently with his professional obligations and the standards as set out in R v Smith at all times.  He maintained adequate standards of courtesy and was not overly zealous in his prosecution.  He was entitled, and in fact required by the rule in Browne v Dunn, to put allegations to the appellant that she had acted fraudulently or was lying.  He was also entitled to object to the appellant raising inadmissible evidence.  The appellant’s allegations about the prosecutor’s conduct are unfounded.

Conclusion

  1. [192]
    In my view, the trial judge’s directions to the jury were deficient in two respects:
    1. (a)
      they failed to identify the relevant aspects of the appellant’s knowledge on which the prosecution case for dishonesty was based; and
    2. (b)
      they failed to give the separate charges direction.
  2. [193]
    The failure to give these directions means that, under section 668E(1) of the Criminal Code, the appeal against conviction must be allowed, unless under section 668E(1A) this Court considers that no substantial miscarriage of justice has actually occurred.
  3. [194]
    In my view, the evidence against the appellant on all counts was strong, but this case falls into the category of cases discussed in Weiss v The Queen:[46]

[45] Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.”

  1. [195]
    As in Doolan, the failure to give the direction as to how to approach their deliberations on a trial of multiple counts has denied the appellant a procedurally fair trial according to law, such that section 668E(1A) of the Criminal Code can have no application.  This also applies to the failure to give a direction in accordance with Peters in relation to dishonesty.
  2. [196]
    It follows that I would allow the appeal against conviction, set aside the guilty verdicts, and order a retrial on all counts.

Footnotes

[1]  (2001) 206 CLR 221 at 234; [2001] HCA 11 at [36].

[2] KRM v The Queen (2001) 206 CLR 221 at 234; [2001] HCA 11 at [36].  That being a case of several counts of sexual offending against the same complainant on different occasions.

[3]  (2002) 213 CLR 606 at 617; [2002] HCA 53 at [34].

[4]  (2017) 260 CLR 151 at 167; [2017] HCA 17 at [53].

[5]  [2014] QCA 246.

[6] R v Doolan [2014] QCA 246 at [39].

[7]  [2017] QCA 294.

[8]  [2016] 1 Qd R 56; [2015] QCA 155.

[9] R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56 at 58; [2015] QCA 155 at [6].

[10]  (1998) 192 CLR 493; [1998] HCA 7 (“Peters”).

[11] R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56 at 64; [2015] QCA 155 at [32] per McMurdo P (Morrison JA and Dalton J agreeing).

[12] Peters v The Queen (1998) 192 CLR 493 at 503; [1998] HCA 7 [15].

[13] Peters v The Queen (1998) 192 CLR 493 at 503; [1998] HCA 7 [16].

[14] Peters v The Queen (1998) 192 CLR 493 at 504; [1998] HCA 7 [18].

[15]  Save perhaps for the first payment by Mr Bird and the first payment by Mr Rolle, each of which was made at a relatively early stage in February 2013.  That qualification, however, does not affect the reasonableness of the jury’s verdicts on those counts, having regard to the other payments made by the complainants.

[16] Criminal Code s 668E(1A).

[17]  All references to the appellant include her actions through this company unless the context otherwise indicates.

[18] R v Khan [2020] QCA 242 at [74].

[19]  [2021] QCA 126 at [19].

[20] R v Miller [2021] QCA 126 at [18].

[21] R v Miller [2021] QCA 126 at [34].

[22] R v Miller [2021] QCA 126 at [29]-[30].

[23] R v Doolan [2014] QCA 246 at [34].

[24] R v Doolan [2014] QCA 246 at [34], citing Criminal Code (Qld) s 668E(1).

[25] R v Perrin [2018] 2 Qd R 174 at [72].

[26] Peters v The Queen (1998) 192 CLR 493 at [18].

[27] Macleod v The Queen (2003) 214 CLR 230 at [37].

[28] R v Perrin [2018] 2 Qd R 174 at [72].

[29]  [2018] QCA 58 at [39].

[30] R v Orchard [2018] QCA 58 at [40]-[42].

[31]  [2014] QCA 246.

[32] R v Doolan [2014] QCA 246 at [39].

[33]  Queensland Supreme and District Court Bench Book at 34.1.

[34] R v Ngwira [2017] QCA 294 at [103]; KRM v The Queen (2001) 206 CLR 221 at 234.

[35] R v Ngwira [2017] QCA 294 at [97]-[98].

[36]  [2017] QCA 294.

[37]  See R v Ngwira [2017] QCA 294 at [24].

[38] R v Ngwira [2017] QCA 294 at [97]-[108].

[39] R v Ngwira [2017] QCA 294 at [103].

[40] R v Ngwira [2017] QCA 294 at [103].

[41] R v Ngwira [2017] QCA 294 at [104].

[42] R v Ngwira [2017] QCA 294 at [105].

[43] Criminal Code (Qld) s 567(2).

[44] R v Doolan [2014] QCA 246 at [99].

[45]  [2007] QCA 447.

[46] Weiss v The Queen (2005) 224 CLR 300.

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Editorial Notes

  • Published Case Name:

    R v Lyons

  • Shortened Case Name:

    R v Lyons

  • MNC:

    [2021] QCA 136

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Mullins JA, Wilson J

  • Date:

    25 Jun 2021

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC131/17 (No citation)22 Aug 2017Date of conviction; found guilty after trial by jury of eight counts of fraud; director of company dishonestly used monies paid by clients for unauthorised purposes, causing clients pecuniary loss; accused gave evidence at trial denying that she had acted dishonestly.
Appeal Determined (QCA)[2021] QCA 13625 Jun 2021Appeal against convictions allowed, convictions quashed, retrial ordered; trial judge erred in failing to give jury separate consideration of charges direction; trial judge’s directions on dishonesty were inadequate (per McMurdo JA only in respect of counts 4-8, not counts 1-3): McMurdo JA, Mullins JA, Wilson J.

Appeal Status

Appeal Determined (QCA)

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