R v Portese[2024] QCA 117

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 2 August 2022, Ms Portese was convicted after a 12 day trial in the District Court before a jury of one count of fraud, to the value of $30,000 or more committed between 6 August 2018 and 1 January 2020 (the offending period) by dishonestly causing a financial detriment to the named complainant (count 1) and one count of fraud that on 6 May 2019 Ms Portese dishonestly caused a financial detriment to the same complainant (count 2).  Ms Portese was sentenced to imprisonment for five years for count 1 and imprisonment for two years for count 2.
2. [2]
   Ms Portese’s case at the trial was that, in respect of each count, the jury would not be satisfied beyond reasonable doubt that she had the requisite dishonest intention when she withdrew the funds from the complainant’s bank accounts.
3. [3]
   In her notice of appeal, as originally filed, Ms Portese sought to appeal against the conviction on the ground that the jury’s verdicts were unreasonable and could not be supported having regard to the evidence and the sentence imposed was manifestly excessive.
4. [4]
   Ms Portese was represented at the trial by counsel and a firm of solicitors.  She is self-represented on this appeal.  She applied for leave to amend her grounds of appeal for the conviction and was given leave to add grounds to the following effect:

   1. there was a miscarriage of justice when the learned trial judge refused to adjourn the trial;
   2. a grossly unfair outcome determined by ineffective assistance and inadequate defence strategies by trial counsel; and
   3. lack of opportunity for the appellant to view the evidence in the prosecution brief which the appellant asserts she should have been given.
5. [5]
   Ms Portese confirmed at the hearing of the appeal that she had not waived legal professional privilege in respect of the communications she had with her lawyers in relation to their representation of her for the trial.
6. [6]
   Ms Portese filed an outline of argument dated 9 August 2023 in support of her appeal against conviction and sentence.  She filed a further document on 11 October 2023 entitled “Affidavit to amend appeal against Conviction and Sentence”.  She refers in the affidavit to providing an additional six pages of statement of argument to support the addendum grounds of appeal and six additional appendices to the addendum.  The only part of the affidavit which is sworn is the formal paragraphs, including the paragraphs which merely identify the documents Ms Portese provided with the affidavit.  The attached statement of argument asserts facts about the conduct of the trial by Ms Portese’s lawyers and about her capacity throughout the trial most of which were neither the subject of sworn evidence nor reflected in the record of the proceedings of the trial.  Ms Portese was informed during the hearing of the appeal that this Court in dealing with the appeal would not consider submissions she made (orally or in writing) to the extent they asserted factual matters that were not in evidence at the trial, not reflected in the record of the proceedings of the trial or otherwise not before the Court as sworn or affirmed evidence.

The course of the trial

7. [7]
   The indictment was presented in June 2021 when Ms Portese was legally represented.  Those lawyers were given leave to withdraw on 22 February 2022.  Ms Portese made a Legal Aid application and by the review of the matter on 31 May 2022, the solicitors’ firm which acted for Ms Portese at the trial had been engaged and her trial counsel had been briefed.  The trial had been listed at that stage to commence on 18 July 2022 before the trial judge.
8. [8]
   On 14 July 2022 the trial judge reviewed the matter by telephone and the counsel who appeared were the trial prosecutor and Ms Portese’s trial counsel.  The transcript of the hearing on 14 July 2022 is not available.  It appears from the inquiries undertaken by the respondent that the review was a late listing and no audio or transcript of the hearing was available and any backup recording would have been disposed of on transition to the Court’s new Recording and Transcription Services.  The respondent relies on its internal sittings report for the hearing before the trial judge on 14 July 2022 and an affidavit of the trial prosecutor.  The appellant relies on the affidavit prepared by her former solicitor about what occurred in open court on the application for the adjournment of the appellant’s trial.  This material shows that counsel on behalf of Ms Portese applied for an adjournment of the trial due to Ms Portese’s sore foot and relied on three letters under the hand of orthopaedic surgeon Dr Pozzi dated 8, 11 and 13 July 2022 and the adjournment was opposed by the prosecutor.
9. [9]
   Dr Pozzi’s letter of 8 July 2022 stated:

“This lady is currently a patient of mine with a complex foot and ankle problem post traumatic that has seen her operated on five months ago under a workcover claim. She has had a protracted course of pain and inability to weight bear. She has been unable to return to work over an extensive period of time.

There is a significant ongoing pain requirement and there is an associated psychological disturbance that would currently have some effect on her general cognition. Very specifically, she has recently had a deterioration in her foot that is currently being investigated as to the possible infection around her surgical repair site. It currently leaves her with an inability to load bear comfortably on this leg. There is a chance that over the next few weeks we may need to look at further surgical intervention.”

10. [10]
    Dr Pozzi’s letter of 11 July 2022 was prepared as an addendum to the letter of 8 July 2022.  It explained that Ms Portese had sustained “a significant traumatic injury to her left ankle in June of 2021 with the rupture of her spring ligament which failed to be managed with conservative treatment”.  Dr Pozzi recorded that Ms Portese had “significant pain and disability requiring medication to manage it” and, in February 2022, she had an open repair of her spring ligament with a subtalar arthrodesis and for the last five months had been in the post-operative period.  Dr Pozzi then stated:

“This operation is often associated with pain and slow mobility and it has been complicated by a persistence of significant post operative pain including some neuropathic pain requiring the use of nerve stabilising agents and Lyrica. This medication does have a recognised cognitive effect and is often only prescribed at night due to that.”

11. [11]
    Dr Pozzi concluded the letter of 11 July 2022 by observing:

“… it would be fair to say that this lady is certainly still undergoing medical treatment for a complex problem that certainly has both a mobility issue, a still persisting significant pain issue, a medication issue as stated above, and the usual attended psychological disturbance that comes with these issues now that it has persisted through to the two year mark.”

12. [12]
    The third letter from Dr Pozzi was to clarify the issues and stated:

“She still has a significant, ongoing, post medical disability that means long periods of sitting and being expected to tolerate even five hours per day in court under the stress and duration of this, would I think be difficult for this lady. The rest of the reasons behind this medically, I have included in my previous correspondence.

There has been a recent flare up of her medical condition requiring increasing medication and decreased tolerance of her ability to ambulate. The exact progression of her condition over the next period of time while, I believe, she is attending court is difficult to predict. She is certainly a fair way post surgery and I am not anticipating surgery in the next little while, but she is still struggling through this period.”

13. [13]
    The prosecution notes show (as was endorsed on the indictment) that the trial was to remain as listed to commence on 18 July 2022.  The notes also record:

“The Court will endeavour to accommodate the defendant with additional breaks and perhaps sit for 4hrs instead of 5hrs.  Def may also give further suggestions to help the defendants comfort.”

14. [14]
    The accuracy of those notes is confirmed by the affidavit of Ms Portese’s former solicitor who made a file note of the hearing before the trial judge by telephone on 14 July 2022.  The affidavit states that counsel for Ms Portese made submissions based on the content of the three letters from Dr Pozzi as justifying an adjournment and that the trial judge expressed concern that the appellant was charged with fraud which made her self-reported symptoms, such as pain, unreliable, expressed a suspicion that Ms Portese’s condition was manufactured, and noted that Dr Pozzi did not seem to be able to articulate why Ms Portese could not proceed to trial.  The affidavit states that the trial judge also noted there was no evidence that Ms Portese was taking her medication and the trial judge indicated that arrangements would be made to accommodate Ms Portese’s health.
15. [15]
    The first day of the trial commenced at 11.05 am on 18 July 2022.  Ms Portese’s counsel raised matters that were “touched upon” during the adjournment application the preceding week.  He produced the prescriptions for Tramadol and Pregabalin (for which Lyrica is a brand name) and informed the Court that Ms Portese was taking one Tramadol in the morning and one at night and two tablets of Pregabalin at night and the combination of the two drugs impacted on her attention span and had given her “a heightened state of emotion at some occasions”.  He requested that the Court sit for four hours per day and that Ms Portese be granted breaks when required.  He also informed the judge that as the medication had given Ms Portese a dry mouth, she required access to her own water.  He also requested on Ms Portese’s behalf that her foot be raised and that a small table be placed next to her for her to put her foot up.
16. [16]
    Ms Portese pleaded not guilty to counts 1 and 2.  Before the arraignment, the trial judge explained to the panel that Ms Portese had a sore foot and that Ms Portese would not need to stand for the arraignment.  After the jury had been empanelled, the trial judge mentioned Ms Portese’s sore foot again and that she would have to take some breaks as well through the trial.  Consistent with sitting for four hours each day, on most days the trial adjourned at 3.30 pm or soon after.
17. [17]
    Ms Portese was called upon at the commencement of the seventh day of the trial.  She commenced giving her evidence at 10.21 am.  There was an adjournment for 20 minutes at 11.10 am.  There was another adjournment for 12 minutes.  The Court resumed at 12.45 pm, adjourned for lunch at 1.03 pm and resumed for an hour at 2.00 pm.  That pattern of regular breaks continued as Ms Portese gave evidence on the eighth, ninth and 10^th days of the trial.  Her evidence was completed at 11.20 am on the 10^th day of the trial.

Summary of the relevant evidence

18. [18]
    In April 2018, Ms Portese was working for a disability services provider (the disability services provider) in Cairns and commenced undertaking shifts as a support worker for the complainant who suffered from a rare degenerative mitochondrial condition that confined her to a wheelchair.  The complainant was aged between 33 and 34 years during the period of offending.  The complainant required significant assistance with daily tasks for herself and her two children.  The complainant received a disability support pension and family tax benefits and had savings of between $25,000 and $30,000 when the appellant commenced as one of her support workers.  Their professional relationship developed into a friendship.  On 7 August 2018 the complainant received an amount of $25,000 which was the first payment on account of the inheritance from her mother’s estate.  On 10 August 2018, Ms Portese resigned her job with the disability services provider to become the unofficial guardian/carer for the complainant.  Ms Portese was not employed by the complainant who continued to receive care through the disability services provider funded by the NDIS.  In October 2018, the complainant received a second payment of $55,000 on account of the inheritance from her mother’s estate.
19. [19]
    From August 2018, Ms Portese took control of the complainant’s finances and withdrew $60,185 from ATMs in 118 transactions in the period particularised for count 1.  The prosecutor at trial had tendered with the consent of Ms Portese’s counsel (exhibit 1) a jury book that identified the 118 transactions and relevant supporting documents.  There were 119 transactions listed in the index to the jury book but transaction number 63 was separately the subject of count 2.  Ms Portese at first conceded that she had made all the cash withdrawals between 23 February 2019 and 24 December 2019 which were the subject of some of the transactions particularised for count 1 (transaction numbers 26-119, excluding transaction number 63).  She ultimately conceded she made all the cash withdrawals that were the subject of count 1 (even though she asserted she had the complainant’s authority for every transaction).  The relationship between Ms Portese and the complainant was close during the offending period.  The complainant would frequently telephone Ms Portese for help in dealing with matters that were outside the carers’ responsibilities, paying bills and ensuring that there was sufficient petty cash available for the carers.
20. [20]
    The jury book included the relevant bank statements for the complainant’s two accounts and the statements for her son’s account.  The complainant had an Everyday account from which the cash withdrawals were made.  She also had a Saver Reward account from which transfers of funds were made from time to time to the Everyday account.  From September or October 2018, Ms Portese did all the complainant’s transfers from the Saver Reward account to the Everyday account online on Ms Portese’s computer.  An officer of the complainant’s bank identified the account statements for the complainant in the jury book and explained some of the entries on the statements.  The officer explained the transactions that occurred after hours were shown on another date and not the date on which the transaction was made.  The complainant’s Everyday account showed she was in receipt of a Centrelink pension during the offending period.  The jury book included the complainant’s bank statements from January 2017 until July 2018, so that the rate of spending in that period could be compared with the rate of spending during the offending period.  The jury book also contained bank statements for Ms Portese’s accounts between July 2018 to January 2020.
21. [21]
    On 24 January 2019, the complainant’s two children who were aged seven and nine years were taken into care, as the complainant did not have the capacity to continue to care for them.  On 23 February 2019, the complainant moved from her first address in Cairns to the second address.
22. [22]
    Neurologist Dr Wilson took over the care of the complainant from 30 March 2016 and had seen her approximately every six months from then until 25 May 2022.  Her condition manifested itself in seizures, progressive weakness of the muscles and also caused degeneration in the brain which resulted in cognitive impairment and dysfunction of memory over time.  When the complainant was first assessed at the hospital in 2014 and 2015 her cognitive ability was in the bottom one to five per cent relative to the general population and Dr Wilson’s observation over the years was that her cognition had decreased.  Dr Wilson’s assessment of the complainant during 2018 and 2019 was that her memory was operating at “a very low level” and he would find that the carer who accompanied her would be able to give a more accurate recollection of the events she was asked to recall, such as the number and severity of seizures she had experienced.  Dr Wilson had noted deficiencies in the complainant’s short and long-term memory.  In cross-examination, Dr Wilson accepted that the complainant had capacity during the period 7 August 2018 to 24 December 2019 to make decisions for herself.  There had been no assessment made that she did not have capacity but she may not have made good decisions during that period of time and would have been “very vulnerable to making bad decisions”.  In re-examination, Dr Wilson clarified that it would have been clear to anyone that spent time with the complainant during that period that there were deficiencies in her memory and cognitive function.
23. [23]
    Many of the carers who were engaged by the disability services provider gave evidence at the trial.  They included Ms Piggott, Ms Dermody, Ms Roche, Ms Marsland, Ms Darmanin, Ms Wood, Ms Greenleaf, Ms Hickey, Ms Clark and Ms Rai.  It was the practice for each carer to complete a case note at the end of her shift as to what happened during the shift.  The prosecutor had matched case notes to dates and times of the alleged fraudulent transactions in the complainant’s bank account, so that the relevant carer was able to be questioned about the specific transaction by reference to that case note.  The petty cash logs that were in the possession of the disability services provider were tendered as exhibits 12 and 12b.  The petty cash logs covered the period 24 June 2019 to 6 January 2020.
24. [24]
    Ms Piggott cared for the complainant between August 2018 until January or February 2019 and attended at the complainant’s home four to five times per week.  Sometimes it was an afternoon shift of 12 noon until 4.00 pm or a sleepover where she would be there the night before from 3.00 pm until 10.00 pm, then go to sleep, get up at 6.00 am and leave by 9.00 am.  A case note would be completed at the conclusion of each shift.  There was a petty cash tin in the kitchen at the first address that usually had about $100 in it.  Ms Piggott would use that to buy bread or milk or other groceries and put the receipt into the petty cash tin.  No petty cash log was kept.  Ms Portese controlled the petty cash tin.  Ms Piggott would see Ms Portese caring for the complainant approximately twice per week when she would visit for half an hour to an hour.  Ms Portese put money into the petty cash tin.  The tin contained the complainant’s bank card which Ms Piggott used once to buy $60 worth of groceries with the complainant’s authority by tapping the card.  The complainant did not give Ms Piggott the PIN for that card.  Ms Piggott looked after the complainant’s children regularly as part of her role with the disability services provider and took them to school and brought them home.
25. [25]
    Ms Piggott did not know how much money was put into the petty cash tin by Ms Portese.  The card in the petty cash tin could have been accessed by other people, as there was no requirement to fill out a record when the card was used.  Ms Piggott saw a new grey couch at the first address that looked like it was leather with one or two recliners.  She also saw a new dining room table and chairs.  Ms Portese acted as a mother figure to the complainant.  Ms Piggott also developed a close relationship with the complainant.  From Ms Piggott’s observations, the complainant made her own financial decisions.  The complainant was a generous person and would purchase presents such as jewellery for other people.  The complainant purchased a Pandora charm bracelet with charms for Ms Piggott’s birthday for which she got into trouble with her employer.  It was against the disability services provider’s policy for carers to accept gifts from clients.  After Ms Piggott had left the provider, the complainant gave $500 to Ms Piggott and got Ms Portese to purchase a cheap pre-paid mobile phone for Ms Piggott, so that the complainant could contact her.  Ms Piggott believed that the complainant had the capacity to give her the phone and the money.  Ms Portese spoke on the complainant’s behalf to the disability services provider.  Ms Piggott took the complainant shopping once or twice when she made her own decisions to buy little things such as a shirt, tablecloth or cushion.  Ms Portese took the complainant on outings on five occasions.  A new washing machine was delivered to the house.  The complainant did not have a boyfriend or partner whilst Ms Piggott was the carer.  The complainant used to buy presents for her children and spend money on looking after her two dogs.  The complainant had her own purse in which she kept money that was separate from the petty cash.  The complainant’s pink book in which she kept internet passwords and bills was left in the kitchen on the bench next to the refrigerator.  Ms Piggott saw Ms Portese pay some of those bills.  Ms Piggott never took money for herself from the petty cash tin.  Ms Piggott was questioned about dates on which it was said fraudulent transactions were conducted by the appellant, namely 22 October 2018, 15, 24 and 29 November 2018 and 12 January 2019 and Ms Piggott denied conducting any of the identified transactions.
26. [26]
    Ms Dermody had been a carer for the complainant for about four years from 2018.  She commenced doing the same three shifts each week with each shift lasting about six hours.  That changed over time with Ms Dermody working less frequently with the complainant.  When the complainant lived at the first address, Ms Dermody would shop for groceries or any food or drinks that the complainant wanted.  Sometimes the complainant would accompany her.  Ms Dermody used the petty cash or the complainant’s bank card.  Ms Dermody always kept the receipt and logged all money that had been spent.  Ms Dermody would generally spend around $100 at the grocery store.  The complainant never asked her to withdraw cash on her behalf.  The complainant gave her PIN for her bank card to Ms Dermody, so that Ms Dermody could withdraw, say $200, to top up the petty cash, as most of the time the groceries were bought with cash.  There was also a petty cash system in place at the second address and also a bank card.  Ms Portese was very close with the complainant.  Ms Dermody saw her quite a lot as she would stop in when Ms Dermody was on shift.  She would stay for no more than an hour.  Ms Portese did not take the complainant out too often.  Ms Dermody was referred to the case notes for the specific dates of 24 November, 7 and 29 December 2018, 12, 19 and 26 January 2019, 16, 23 and 27 February 2019, 2, 8, 9, 16, 22 and 29 March 2019, 3, 5, 6, 12, 14, 16 and 26 April 2019, 3 and 31 May 2019, 21 and 22 June 2019, 3, 10 and 17 August 2019, 14 September 2019, 12 and 19 October 2019 and 15 and 16 November 2019.  She denied withdrawing cash using the complainant’s card on any of those dates.
27. [27]
    Ms Dermody’s memory about what happened during 2018 and 2019 was not very good but what happened whilst she was caring for the complainant was recorded in her case notes.  Not every single detail of what occurred was entered in the case notes.  There were no instances when she used the bank card that was not recorded in the case notes.  The impression that Ms Dermody got from the complainant was that Ms Portese handled the complainant’s money and finances.  The relationship between Ms Portese and the complainant was almost like a mother-daughter relationship.  Ms Dermody saw the new couch, dining room table and chairs, Balinese television cabinet and washing machine come into the house.  There were occasions that Ms Portese would arrive to take the complainant out.  There were occasions when the complainant returned with new items.  No money or groceries were left on the kitchen bench.  Ms Dermody did not recall a pink book on the kitchen bench.  The complainant offered gifts to her which she never accepted.  The complainant never offered her cash.
28. [28]
    Ms Roche provided care to the complainant at the start of 2019 for a couple of weeks or a month.  She never went shopping or withdrew cash for the complainant.  She did not use the complainant’s card to withdraw $1,000 on 24 January 2019 or $400 on 13 February 2019 from Redlynch Shopping Centre.
29. [29]
    Ms Marsland provided care to the complainant from about October 2018 until 2020.  She did three or four shifts per week.  She went shopping for the complainant and also withdrew money for her.  There was a safe at the second address which had petty cash in it that Ms Marsland used for shopping.  Ms Portese who was the complainant’s friend controlled the petty cash.  It was generally at $300.  There was a log started as to money taken out and money put in.  Ms Marsland never used the complainant’s bank card.  Ms Marsland saw Ms Portese visit the complainant at the first address three or four times for half an hour or an hour.  The visits were quicker at the second address and occurred once every two or three weeks.  Ms Portese topped up the petty cash, if needed, and had a quick chat with the complainant.  The complainant never offered money or gifts to Ms Marsland.  Ms Marsland gave evidence by reference to her case notes for multiple dates between 27 March 2019 and 24 December 2019.  There were occasions when Ms Marsland was looking after the complainant when the complainant asked her to contact Ms Portese or asked for Ms Portese to purchase small things such as DVDs for her.  A gardener attended to do work.  Ms Marsland had the PIN for the safe at the second address.  There were occasions when sums of money were left on the kitchen bench for petty cash with a note from Ms Portese.  On occasions Ms Portese also left items of shopping on the bench.
30. [30]
    Ms Darmanin provided care for the complainant two or three times per week for about one year from sometime in 2018 up until February 2019 at the first address.  The complainant gave Ms Darmanin her bank card to do shopping for the complainant and on occasions gave her cash for that purpose.  The complainant looked after her own funds.  When Ms Darmanin shopped for groceries, she generally spent no more than $50.  Ms Portese was “really good friends” with the complainant.  Ms Darmanin did not withdraw $500 cash on 7 August 2018 nor $2,100 on 29 August 2018 with the complainant’s card.  The complainant’s boyfriend lived at the first address but was not there when the children were there.  The boyfriend had his own key to the house.  Ms Darmanin did not see the complainant give money to the boyfriend.
31. [31]
    Ms Wood provided care to the complainant between October 2018 and January 2019 for two shifts per week at the first address.  She did a weekly grocery shop for the complainant at Coles at Redlynch.  Apart from one occasion when Ms Wood took the complainant to the shops, Ms Wood was never accompanied by the complainant.  Ms Wood paid for the groceries by using the complainant’s card.  The maximum that she spent at any one time was $200.  Ms Wood always gave the complainant the receipt.  Ms Wood was questioned about the case notes she had made on 12 October 2018, 24 and 29 November 2018, 7 and 29 December 2018 and 7 January 2019.  Ms Wood did not make any of the withdrawals of cash from the complainant’s bank account on those respective dates.  Ms Wood met Ms Portese on one occasion.  The complainant and Ms Portese had a close relationship.  Ms Wood observed the complainant telephoning Ms Portese.  The boyfriend attended at the first address when Ms Wood first started shifts caring for the complainant but he was not living at the house when she finished caring for the complainant.
32. [32]
    Ms Greenleaf provided care for the complainant from August 2018 until July 2021 and resumed providing care to her in May 2022.  During the period August 2018 and until December 2019, she did several shifts each week.  Ms Greenleaf did grocery shopping for the complainant.  There was usually $100 to $200 or sometimes $300 in petty cash.  Ms Greenleaf wrote up a petty cash log, if she took money from petty cash.  She did not use the complainant’s card.  The complainant never asked her to withdraw cash for her.  Ms Greenleaf met Ms Portese at the first address.  Sometimes she saw Ms Portese there once a week and sometimes once a couple of weeks.  Sometimes Ms Portese dropped in to say “hello” to the complainant but sometimes she stayed for a while.  Sometimes Ms Portese brought petty cash.  Ms Greenleaf logged that petty cash every time.  Sometimes Ms Portese took the complainant out of the house.  Ms Greenleaf was asked about 43 dates between 11 October 2018 and 24 December 2019 on which alleged fraudulent transactions were conducted on the complainant’s bank account.  Ms Greenleaf denied she had conducted those transactions or that she took the complainant to do so.  Ms Greenleaf acknowledged that her evidence based on the case notes related only to the time periods for which she was providing care for the complainant.
33. [33]
    On 8 February 2019 at about 1 pm, Ms Portese arrived “with some shopping stuff” and Ms Portese, the complainant and Ms Greenleaf discussed packing and preparing for the move from the first address to the second address, then Ms Portese left and the complainant who was feeling unwell went to bed (exhibit 77).  On 1 March 2019, Ms Portese fixed the gap in the backyard fence at the second address.  When the Webster pack for the complainant’s medication was short, Ms Greenleaf messaged Ms Portese to pick up the new Webster pack from the chemist.  An example of that was recorded on the case note for 2 March 2019 (exhibit 80).  On 15 March 2019, Ms Portese dropped in a television cabinet (exhibit 82).  Ms Greenleaf contacted Ms Portese to top up the petty cash when the complainant needed groceries.  The complainant and Ms Portese were good friends.  There was a pink notebook in which the complainant recorded her password and account details that was kept on the kitchen bench at the first address.  Ms Greenleaf never saw cash on the kitchen bench at the second address.  If the complainant asked Ms Greenleaf to get something (such as purchasing a dog lead), Ms Greenleaf texted Ms Portese and asked her to get the item.  On one occasion Ms Portese bought new clothes for the complainant.
34. [34]
    Ms Hickey provided care for the complainant between November 2018 and sometime in 2020.  In the beginning Ms Hickey worked two to three shifts per week for the complainant and they were usually afternoon shifts.  Ms Hickey reduced her shifts at the second address to one shift per week which was usually on a Sunday.  Ms Hickey bought bread and milk at the local grocery store, if there were none left, using the petty cash.  There was not a ledger at the first address, but she used the communication book to keep track of the purchases and the receipts were put in with the petty cash.  A ledger was eventually used at the second address.  If the petty cash was running low, the complainant contacted Ms Portese.  When Ms Hickey worked on a Sunday, she did grocery shopping for the complainant.  Ms Hickey used cash from the petty cash.  It was never more than $100.
35. [35]
    Ms Hickey met Ms Portese in her first month as the complainant’s carer.  Because Ms Hickey was doing mostly afternoon shifts, she only saw Ms Portese a couple of times at the first address.  At the second address, Ms Hickey saw Ms Portese every couple of weeks.  The visit was often “a very quick interaction”.  Ms Hickey gave evidence in respect of 13 dates between 25 November 2018 and 18 August 2019 and Ms Hickey confirmed that she did not conduct the alleged fraudulent transactions on those dates and did not take the complainant out to do so.  On 9 March 2019, Ms Hickey’s shift between 6.00 pm and 11.00 pm was carried out at the Cairns Base Hospital where the complainant was being treated for seizures she had that day.  The key to enter the second address was hidden somewhere around the front door in a lock box.  The complainant did not eat a lot.  She had a high fat diet, including bacon, avocado, rice puddings and butter.  There were numerous occasions on Ms Hickey’s shifts when the complainant wanted to speak to Ms Portese.  When Ms Hickey first started, the complainant’s boyfriend was not allowed to be at the first address but later at the second address they re-engaged their relationship and he came to the second address, when Ms Portese no longer visited the complainant.  The complainant sometimes had a haircut which included dyeing her hair.  Ms Hickey observed that the complainant on occasion had had her nails done.
36. [36]
    Ms Clark started caring for the complainant in April 2019 and continued for almost three years.  She started off doing one shift per week and it increased to three shifts per week.  Ms Clark first met Ms Portese after a couple of shifts.  Ms Portese was the complainant’s friend who was trying to get her children back for her.  Ms Clark did not see Ms Portese every week.  She would drop off a bit of cash to top up petty cash for shopping and things like that.  She would stay five or 10 minutes.  The petty cash was in a safe and Ms Clark would write down what she had spent if she had been shopping and return the change.  At first the information about spending was recorded in the case notes and communications and then there was a spreadsheet that was completed with the information and put in the safe.  The petty cash generally was topped up to around $200 and that happened every week or sometimes twice a week.  There was not a bank card of the complainant in the safe to use.  If Ms Clark needed more money than was in the petty cash, she called Ms Portese.
37. [37]
    Ms Clark did food shopping on behalf of the complainant such as sugar, bacon and eggs for breakfast, avocado on toast, butter, rice pudding and yoghurt.  Ms Clark purchased small gifts for the complainant’s children from Kmart when the complainant told her the children were coming.  She also paid veterinary bills and purchased a dog lead and dog food for the complainant’s dogs.  Ms Portese took the complainant to her neurology appointments a couple of times and then Ms Clark took over taking the complainant to the neurology appointments.  Around Christmas 2019, Ms Clark found the loan agreement (exhibit 7) after the complainant told her something.  Ms Clark took a screen shot and emailed it to Mr Wright.  The complainant wanted to buy Ms Clark something for her birthday but Ms Clark refused as it was against the disability services provider’s policy.  Ms Clark was questioned by reference to her case notes in respect of 12 specific dates between 10 May 2019 and 8 December 2019 and Ms Clark denied that she had either withdrawn cash or assisted the complainant to withdraw cash from the complainant’s account on the respective dates.  On 25 September 2019, Ms Portese gave Ms Clark $250 to top up the petty cash which Ms Clark recorded in the log.  On 10 October 2019, Ms Portese arrived at the second address, bringing money for the gardener and a tray of donuts.  The money for the gardener was logged in the petty cash ledger by Ms Clark.
38. [38]
    Ms Rai provided care for the complainant from early 2019 for a few months.  She did one fairly long shift per week and also did some fill-in shifts.  The complainant was living at the first address and then moved to the second address.  Ms Rai took the complainant once to Cairns Central Shopping Centre when the complainant purchased a Pandora charm for a charm bracelet.  Ms Rai did grocery shopping for the complainant or shopping for the complainant’s pets.  Ms Rai paid with cash from the petty cash.  She never used the complainant’s bank card and the complainant never asked Ms Rai to withdraw cash on her behalf.  Ms Rai spent no more than $200 when she bought groceries for the complainant.  She mostly went to Redlynch Shopping Centre or the pet shop in Smithfield.  Ms Rai met Ms Portese once during early 2019.  Ms Rai was questioned about the shifts that she worked on 23 and 26 January 2019, 2 and 27 February 2019, 22 and 27 March 2019 and 5 April 2019.  On none of those dates did she take the complainant to the place where cash was shown on the complainant’s bank statement as having been withdrawn from her account.
39. [39]
    Mr Wright who was the direct supports supervisor with the disability services provider had been the complainant’s support coordinator since August 2018.  He regularly met the complainant between fortnightly and monthly to review the services.  He met Ms Portese shortly after he became involved in the complainant’s care when Ms Portese was no longer employed by the disability services provider.  Ms Portese had taken on the responsibility at the first address for maintaining the petty cash, as it was not the responsibility of the disability services provider.  It was the same arrangement at the second address.  There was a cash ledger kept for the petty cash at least at the second address.  Prior to the cash ledger book, transactions in respect of petty cash were recorded in the communication book.  Ms Portese sent emails to Mr Wright regarding the complainant’s care.  Ms Portese took on the responsibility of organising the complainant’s hydrotherapy.  In 2018/2019, the complainant had the authority to make her own financial decisions.
40. [40]
    Ms Fendley was the owner of the business Leading Support Solutions which was a training organisation based in Logan in south-east Queensland.  Her evidence included the following.  Ms Portese had commenced working for Leading Support Solutions during 2018 as the administrative assistant to Ms Fendley.  That business provided training courses for disability support workers.  It conducted training courses in Cairns at the Red Beret Hotel.  Ms Fendley met the complainant when she was in Ms Portese’s car in the carpark of the Red Beret towards the end of 2018.  Ms Fendley also was with Ms Portese on two occasions when Ms Portese went to the complainant’s house for a brief visit.  The business began to have financial problems at the beginning of 2019.  Ms Fendley told Ms Portese that she required a loan of $20,000 for the business to stay afloat, as otherwise she could not continue to employ Ms Portese.  A few days later Ms Portese informed Ms Fendley that the complainant would lend her the money.  Ms Fendley did not speak directly to the complainant about the loan.
41. [41]
    Ms Fendley prepared a document dated 4 May 2019 that recited that the complainant agreed to loan the amount of $20,000 to Ms Fendley which was to be paid back within three months starting from the end of June and Ms Fendley agreed to the terms and conditions on receipt of the moneys (exhibit 7).  The document was signed by Ms Fendley with her electronic signature and emailed to Ms Portese.  Ms Fendley did not see the document after she emailed it.  Exhibit 7 shows initials for the complainant’s signature and that Ms Portese was the witness.  Ms Fendley received into her personal account the sum of $20,000 a day or days later.  Ms Fendley transferred $8,000 into the business account of Leading Support Solutions that was used immediately to pay wages owed to Ms Portese.  Ms Fendley used the balance of $12,000 for her home loan.
42. [42]
    On 6 May 2019, Ms Portese had transferred $20,000 from the account in the name of the complainant’s seven year old son to Ms Fendley’s personal account.  It is this transfer that is the subject of count 2.
43. [43]
    Ms Fitzgerald became the complainant’s NDIS support coordinator at the disability services provider in September 2018.  At that stage NDIS funded 50 per cent of the complainant’s support needs and the Department of Child Safety funded the other 50 per cent, so that the complainant was able to keep her children.  Ms Fitzgerald met Ms Portese soon after when Ms Fitzgerald organised a meeting with the complainant.  A new NDIS plan was approved for the complainant around March 2019.  Ms Fitzgerald considered that the complainant required greater funding and dealt with the complainant to pursue that.  Around December 2019, one of the support workers found exhibit 7 and provided it to Ms Fitzgerald.  Ms Fitzgerald supported the complainant to go to her bank to obtain her bank statements and as a result of the excessive transactions on those statements, Ms Fitzgerald’s manager contacted the police and Ms Fitzgerald attended at the police station with the complainant.  The complainant had the capacity to make day to day decisions.
44. [44]
    Detective McManus commenced a fraud investigation on 7 January 2020 in respect of the complaint.  The preliminary amount that Detective McManus calculated for a fraud charge against Ms Portese was $37,859 and the search warrant specified that the offence being investigated was fraud in the amount of $37,859.  Detective McManus executed a search warrant at Ms Portese’s home on 8 April 2020 and a copy of the search warrant was given to Ms Portese.  An audio recording was made of the search (exhibit 4) that was played at the trial.
45. [45]
    A tax invoice dated 15 April 2020 was issued by Leading Support Solutions to the complainant (exhibit 10) seeking payment of $37,198.37 for hours provided by Ms Portese as an employee of Leading Support Solutions to the complainant between 13 August 2018 and 6 January 2020 and travelling costs.  Ms Fendley’s evidence was to the effect that she created that false invoice at the request of Ms Portese from information provided to her by Ms Portese.  Ms Fendley also stated that she prepared the letter dated 15 April 2020 to the complainant on the letterhead of Leading Support Solutions that was marked “Without Prejudice” (exhibit 9) in the terms dictated to her over the phone by Ms Portese.  Ms Fendley stated that Leading Support Solutions never provided the services to the complainant that were the subject of exhibit 10.  Ms Fendley sent that letter to Ms Portese together with the invoice of the same date.  Ms Fendley stated that she did not insert her electronic signature into that letter.  The envelope in which exhibits 9 and 10 were sent to the complainant was also tendered at the trial (exhibit 11) and showed that it was posted on 22 April 2020 from Smithfield which is a suburb in Cairns.  Ms Fendley said that it was not her handwriting on the envelope.
46. [46]
    Ms Fendley acknowledged in her evidence that she had only repaid to the complainant the sum of $5,500 in respect of the loan of $20,000.
47. [47]
    The prosecutor at the trial focused on the patterns of spending revealed in the complainant’s bank statements during the offending period.  By way of example, between 10 February and 1 March 2019 which covered the move to the second address, there were six purchases at Bunnings and purchases at Robins Kitchen, Spotlight and Kmart which demonstrated that there was no need for cash to be withdrawn to pay for the things the complainant needed.  Even where there was a purpose for the cash withdrawal, there was a pattern of more cash being withdrawn than required for the stated purpose.  By reference to both the complainant’s bank statements and Ms Portese’s bank statements, the prosecutor could point out cash withdrawals from the complainant’s account that coincided with cash deposits to Ms Portese’s account.
48. [48]
    The prosecutor focused the jury’s attention on the following ATM withdrawals that were made when there was evidence otherwise that the complainant was not present with Ms Portese at the time of the withdrawal and where the prosecution argued there was significance in the place of withdrawal:

49. [49]
    Detective McManus gave evidence that there was a TAB and gaming section at the Red Beret Hotel and that there were also restaurant and gaming facilities at Holloways Beach Sports Club and the Parkview Hotel.  Almost all the withdrawals at the Red Beret Hotel and at the licensed premises were made on Fridays, Saturdays or Sundays.
50. [50]
    Ms Portese gave evidence at the trial which included the following.  One of the reasons Ms Portese resigned from the disability services provider was that she was getting too busy also working for Leading Support Solutions.  After Ms Portese had resigned from disability services provider, her relationship with the complainant became “very close”.  She had access to the complainant’s online banking from September or October 2018.  In the latter part of 2018, Ms Portese was at the complainant’s home all the time.  There were many times she transported the complainant’s children to and from school and took the complainant on outings.  When the complainant engaged a lawyer privately to have her children returned to her, Ms Portese accompanied the complainant to every consultation with her lawyer and court appearance.  Ms Portese agreed with the opinion expressed in an email dated 2 August 2018 about the complainant by Ms Gorell who was the client services coordinator of the disability services provider (exhibit 65).  That email stated that the complainant “has the capacity to make decisions regarding the activities she would like to engage in and about making decisions about her life and living conditions”.  Ms Portese took the complainant to her appointments with the neurologist and sometimes to her general practitioner.  The general practitioner wrote a letter dated 1 April 2019 (exhibit 128) that reported on her review of the complainant on 29 March 2019 in which she observed some improvements in her condition, noting that her seizure frequency had reduced and she had less photophobia.  Ms Portese agreed with these observations.
51. [51]
    Ms Portese had got her certificate in disabilities through Ms Fendley and they kept in contact and Ms Portese became quite close to her.  Ms Portese denied drafting exhibit 7.  Ms Fendley had financial troubles and had been unsuccessful in applying for a bank loan of $20,000.  She asked Ms Portese whether she could think of anybody who would assist Ms Fendley.  Ms Portese suggested the complainant and approached the complainant on behalf of Ms Fendley.  The complainant agreed to assist Ms Fendley by lending her $20,000.  Ms Portese was present with the complainant to effect the transfer, as a security code was sent to the complainant’s phone for the transfer.  The complainant did not object to the transfer.  The money was paid to Ms Fendley’s account and Ms Portese did not receive any of those moneys (but conceded her arrears of wages were paid by Ms Fendley).
52. [52]
    In relation to exhibits 9 and 10, it was Ms Fendley’s idea to send an invoice to the complainant for the hours that Ms Portese had spent with the complainant.  It was Ms Fendley who asked Ms Portese to calculate the relevant hours and prepared the invoice and letter.  Ms Fendley asked Ms Portese to print these documents and send them to the complainant.
53. [53]
    Ms Portese ensured that the complainant’s need for a high fat diet was met.  Ms Portese was a mother figure to the complainant.
54. [54]
    Ms Portese gave explanations for some of the transactions that were alleged to be fraudulent.  Ms Portese was with the complainant when she withdrew $500 cash at Cairns Central on 7 August 2018 (transaction number 1).  The cash withdrawals of $1,600 and $800 on 29 August 2018 (transaction numbers 2 and 3) coincided with the complainant’s purchase of a new washing machine for $1,299 and extended warranty for $195 (exhibit 129).  Ms Portese paid for the washing machine and the extra warranty and the complainant reimbursed her with the cash that she withdrew on that day.  Ms Portese was with the complainant when she withdrew a total of $1,600 from the ATM outside the branch of her bank on 11 October 2018 (transaction numbers 4 and 5).  Ms Portese was with the complainant on 12 October 2018 when she withdrew $500 (transaction number 6) of which she used $200 cash and an additional $100 via an EFTPOS transaction to pay for the deposit for a new leather lounge and a dining table and chairs at Amart Furniture (exhibit 130).  The outstanding amount for the furniture was $2,617.95 and Ms Portese was with the complainant on 22 October 2018 when she withdrew $4,100 in cash (transaction number 7) at the branch of her bank to pay the outstanding amount.  Ms Portese did not know what the complainant did with the balance of $1,500 after she put it in her purse.  Ms Portese was cross-examined on the deposit of $1,000 to her account on 22 October 2018 at Australia Post at Redlynch.  She denied it was from the cash withdrawn by the complainant and asserted it was given to her by her friend who was the owner of the Red Beret Hotel.
55. [55]
    The complainant’s bank statement shows a cash withdrawal of $1,500 on 15 November 2018 (transaction number 8) about which Ms Portese had no recollection.  Ms Portese was with the complainant when she withdrew $600 from her account at the ATM at Cairns Central on 24 November 2018 (transaction number 9).  They then went shopping for the complainant’s children’s birthday presents.  There was a withdrawal of $1,000 from the complainant’s account on 25 November 2018 (transaction number 10) but Ms Portese had no memory of that particular withdrawal.  There was a cash withdrawal of $500 from Redlynch shopping centre on 29 November 2018 (transaction number 11).
56. [56]
    There was a cash withdrawal of $1,000 from the ATM at McLeod Street, Cairns on 7 December 2018 (transaction number 12) which Ms Portese could not remember.  There was a cash withdrawal of $500 on 11 December 2018 (transaction number 13) which occurred when Ms Portese took the complainant to do some Christmas shopping at Cairns Central.  It was on this occasion that the complainant bought Ms Piggott a Pandora bracelet.  Ms Portese went shopping with the complainant on 29 December 2018, when the complainant made a withdrawal of $700 at Cairns Central (transaction number 14).  On this occasion, the complainant purchased a bracelet for herself and a silver ring for Ms Portese for Christmas.  On 7 January 2019 $400 was withdrawn from an ATM at Redlynch shopping centre (transaction number 15) which Ms Portese at first asserted was not done by her, as she did not have the complainant’s card, but ultimately conceded that it was done by her.  On 10 January 2019 at the same ATM another $700 was withdrawn (transaction number 16) about which Ms Portese had no knowledge.  Ms Portese also had no knowledge of $500 withdrawn from the same ATM on 12 January 2019 (transaction number 17).  Ms Portese withdrew $400 on 19 January 2019 at Cairns Central (transaction number 18), as she had the complainant’s daughter with her and she had been asked by the complainant to buy both children clothing for school and she gave the change to the complainant.
57. [57]
    Ms Portese had no knowledge of the withdrawal of $1,000 from an ATM at the DFO Cairns on 23 January 2019 (transaction number 19) nor the withdrawal the next day of $1,000 from an ATM at Redlynch shopping centre (transaction number 20).  Ms Portese attended the first address on 24 January 2019 as that was the date that the Department of Child Safety took the complainant’s children into care.  The complainant gave her bank card to Ms Portese to enable her to withdraw $500 at the Red Beret Hotel on 26 January 2019 (transaction number 21) to reimburse herself for about $410 that Ms Portese had spent on the complainant’s children’s uniforms, books, shoes and socks.  Ms Portese had no knowledge about the withdrawal of $700 at Australia Post at Redlynch on 2 February 2019 (transaction number 22).  In respect of the withdrawal of $300 at the Red Beret Hotel on 8 February 2019 (transaction number 23), Ms Portese was not sure whether that was an occasion on which she had taken the complainant to the Red Beret for lunch when the complainant herself had used the ATM to withdraw cash which she could do with assistance.  (The fact that the complainant did not go out that day is confirmed by the case note that is exhibit 77.)  Ms Portese had taken the complainant shopping, including at Redlynch shopping centre, on 13 February 2019 when $400 was withdrawn from the ATM at Redlynch (transaction number 24).  Ms Portese had no knowledge about the withdrawal of $500 from the ATM at the Red Beret Hotel on 16 February 2019 (transaction number 25).
58. [58]
    There was a withdrawal of $1,000 on 23 February 2019 (transaction number 26) which was the day that the complainant moved from the first address to the second address and for which the complainant authorised Ms Portese to meet the costs of the removal.  Ms Portese organised the move, including organising a removalist, the skip bin and an exit cleaner.  The complainant gave Ms Portese her card to pay for the bills that needed to be paid in connection with the move.  She then told Ms Portese to keep the card, as that was more convenient.  Ms Portese organised so that every time money was withdrawn from the complainant’s account there was a notification to the complainant’s phone.  She never made any withdrawals without the complainant’s permission.
59. [59]
    Ms Portese started paying for all the complainant’s bills.  The skip bin was about $500.  The removalist charged $180 plus GST per hour and it took them seven hours for the removal.  Ms Portese also organised for the repairs that had to be undertaken at the first address to put the house back into the appropriate condition.  The exit clean at the first address was close to $600.  Ms Portese bought paint, new mesh for the screens and new curtains for the first address.  There was a second withdrawal of $600 on 23 February 2019 (transaction number 27) which the complainant authorised Ms Portese to do, as she had not drawn out enough for the removalist.  There was a third withdrawal on 23 February 2019 of $400 at the Red Beret Hotel (transaction number 28) which Ms Portese did with the complainant’s permission to pay for the removalist.  There was a cash withdrawal at the ATM at the Red Beret Hotel of $400 on 24 February 2019 (transaction number 29) which Ms Portese did with the complainant’s authority to pay for the skip bin.
60. [60]
    Ms Portese was replacing her Balinese TV cabinet and coffee table in her own home and the complainant wanted to buy it.  Ms Portese sold it to the complainant for $800 and that was the purpose of the withdrawal in that amount from Australia Post at Redlynch on 27 February 2019 (transaction number 30).  There was a corresponding credit of $800 to Ms Portese’s bank account on 27 February 2019 in which the transaction is also shown as being undertaken at Australia Post at Redlynch.
61. [61]
    The withdrawal of $1,000 on 1 March 2019 (transaction number 31) was done by Ms Portese for the complainant.  Ms Portese did not know what the money was used for.  Ms Portese speculated that the cash withdrawal of $400 at Coles at Redlynch on 2 March 2019 (transaction number 32) was used to do a “big shop” for the complainant.  There were three transactions at the ATM at the Red Beret Hotel on 8 March 2019 (respectively for $200, $200 and $250) (transaction numbers 33-35) where the transactions went through the complainant’s account on 9 March 2019.  Ms Portese could not recall what the money was for and suggested there were multiple transactions because of a transaction limit at the Red Beret Hotel.
62. [62]
    Ms Portese paid the complainant’s final electricity account for the first address that was issued by Ergon Energy on 8 March 2019 for $1,227.41 (exhibit 131) in cash.  In cross-examination, it was pointed out to Ms Portese that there was an entry in the complainant’s Saver Reward account for payment by BPAY to Ergon Energy for $1,227.06 on 16 April 2019.  It was put to her that she paid the account by BPAY from the complainant’s account and then told the complainant that she had paid for it in cash and that the complainant had to repay the cash to Ms Portese.  Ms Portese disagreed with that proposition.  Ms Portese paid $720 on account of the complainant’s electricity account for the second address for which the invoice issued on 16 May 2019 was for an amount of $660.94 (exhibit 132).  Ms Portese identified further electricity accounts for the second address (exhibits 133 and 134) which she paid for through her own bank account respectively for $336.03 and $522.15.
63. [63]
    Ms Portese was with the complainant when $700 was withdrawn from the complainant’s branch at Cairns Central on 9 March 2019 (transaction number 36).  (Ms Dermody and Ms Hickey’s evidence was that the complainant had seizures that day and was hospitalised.)  There were two withdrawals of $250 made on 15 March 2019 by Ms Portese that were recorded on the complainant’s account on 16 March 2019 using the ATM at the Red Beret Hotel (transaction numbers 37 and 38).  It was to meet expenses finalising the tenancy at the first address.  There were two withdrawals on 16 March 2019 at the Red Beret Hotel ATM each for $200 that were processed through the complainant’s account on 17 March 2019 (transaction numbers 39 and 40).  Ms Portese was owed money by the complainant for purchases that Ms Portese had made for the second address.
64. [64]
    The withdrawal of $1,000 at Cairns Central on 17 March 2019 (transaction number 41) was for a television purchased at JB Hi-Fi and the complainant was with Ms Portese when the purchase was made.  (This is inconsistent with the entry in the complainant’s bank statement that shows a purchase was made using the card at JB Hi-Fi at Cairns Central for $995 that was processed on 19 March 2019.)  Ms Portese could not identify the expenses she had incurred in buying things for the second address for which she was being reimbursed by the two withdrawals of $250 each at the Red Beret on 21 March 2019 (transaction numbers 42 and 43).  A further $250 was withdrawn at the Red Beret on 22 March 2019 (transaction number 44) followed by another $500 withdrawn at the Red Beret on 22 March 2019 that was processed against the complainant’s account on 23 March 2019 (transaction number 45).  Ms Portese could not remember whether the complainant was with her on 27 March 2019 when $200 was withdrawn at the ATM at the Bluewater Bar and Grill (transaction number 46).  Although Ms Portese could not recall where the withdrawal of $1,000 on 29 March 2019 (transaction number 47) was made, the complainant was with her that day.  There was $650 withdrawn on 3 April 2019 from Earlville Stocklands (transaction number 48).  Ms Portese had taken the complainant out to Target (at Earlville shopping centre) and the complainant withdrew the cash to buy things at Target.  (This is inconsistent with the case notes which are exhibits 27 and 46 that show the complainant was unwell on that day and at home.)
65. [65]
    Ms Portese could recall none of transaction numbers 49-57 that took place between 5 and 18 April 2019 (for a total of $2,950).  There were three transactions for $200, $250 and $150 respectively from the ATM at the Red Beret Hotel that took place on 5 April 2019 but were processed against the complainant’s account on 6 April 2019 (transaction numbers 49-51).  There was a further $300 withdrawn from the ATM at the Red Beret on 6 April 2019 that was processed against the complainant’s account on the same date (transaction number 52).  Ms Portese was cross-examined on the entry in her bank statement on 6 April 2019 of a deposit of $300 at Australia Post at Redlynch into her account.  She denied it was from the cash she had withdrawn that same day at the Red Beret Hotel.  There was $2,000 withdrawn on 23 April 2019 in two transactions, one for $1,200 and the other for $800 (transaction numbers 58 and 59), which Ms Portese remembered withdrawing at the Redlynch ATM at the complainant’s request.  The complainant would not tell Ms Portese the purpose for which she wanted the money.  Ms Portese handed the cash to the complainant.  There was another withdrawal of $800 on 25 April 2019 (transaction number 60) which Ms Portese recalled withdrawing at the complainant’s request and giving the money to the complainant.  There was a cash withdrawal of $1,700 on 26 April 2019 (transaction number 61) which Ms Portese did with the complainant being present.
66. [66]
    When the complainant went out with Ms Portese, Ms Portese gave the complainant her bank card and the complainant would give it back to Ms Portese at the end of the outing.  Ms Portese did not remember the withdrawal of $550 on 3 May 2019 (transaction number 62) but it could have been one of the days on which she took the complainant out.  There were four cash withdrawals at the Red Beret Hotel on 10 May 2019 for varying amounts for a total of $1,510 (transaction numbers 64-67) which were made by Ms Portese.  She was still paying the complainant’s electricity bills and paying $80 each fortnight for the gardener.  She was also still buying clothes for the complainant and things for the second address.  The cash withdrawal of $530 made by Ms Portese on 14 May 2019 (transaction number 68) was at the complainant’s request and Ms Portese gave the cash to the complainant.  Ms Portese did not recall making the cash withdrawal of $350 at Smithfield shopping centre on 22 May 2019 (transaction number 69).
67. [67]
    There were four cash withdrawals at the Mission Beach Resort on 31 May 2019 for a total of $1,760 (transaction numbers 70-73) when Ms Portese was staying there.  While she was at Mission Beach, she asked the complainant whether she could withdraw from the complainant’s account the money that the complainant owed her and the complainant agreed to each of the four withdrawals.  While Ms Portese was at Mission Beach, she used the complainant’s card at Woolworths on 27 May 2019 to purchase food for herself in the sum of $213.98 which was money the complainant owed Ms Portese.  Ms Portese conceded in cross-examination that she did not keep track of what she had spent for the complainant but she was certain that the complainant owed her money when Ms Portese used the complainant’s money to reimburse herself for expenses that she had met on behalf of the complainant.
68. [68]
    Ms Portese withdrew $200 on 15 June 2019 (transaction number 74) at the complainant’s request for the petty cash and Ms Portese gave the money to the complainant.  Ms Portese did not recall making the cash withdrawal of $400 on 21 June 2019 (transaction number 75).  She did recall making the cash withdrawal of $500 at Australia Post at Redlynch on 22 June 2019 which the complainant requested her to do to pay one of the complainant’s bills (transaction number 76).  She was cross-examined on the deposit of $300 that she made on the same date at the same place to her account and she denied that it came from the cash she had withdrawn from the complainant’s account.  Ms Portese did not recall the cash withdrawal of $1,000 on 25 June 2019 (transaction number 77).  She was cross-examined about a deposit of $700 she made to her bank account on 25 June 2019 and agreed that it came from the cash withdrawal from the complainant’s account.  (It is noted in the petty cash log (and exhibit 54) that $250 from Ms Portese was paid in on 25 June 2019.)
69. [69]
    There were six withdrawals for a total of $1,250 at the Barron River Hotel on 28 June 2019 (transaction numbers 78-83).  Ms Portese was reimbursing herself for money that the complainant owed her for payments Ms Portese had made on account of the complainant’s electricity bill and the gardener.  She conceded in cross-examination that she may have played the pokies but she “would definitely not have put that … amount of money in the pokies”.  She also had a UBet account for betting on the soccer.  She could not remember whether she bet on soccer games that day.  Her bank statement showed that she topped up her UBet account with $150 on 28 June 2019.  Ms Portese recalled making the cash withdrawal at Australia Post at Redlynch on 30 July 2019 for $300 (transaction number 84) to pay one of the complainant’s bills and then give her the balance.  (It is noted that $150 was logged in the petty cash on that date.)
70. [70]
    The Child Safety Officer who was handling the arrangements for the complainant’s children organised for the complainant with the assistance of Ms Portese to have contact with her children for four hours on each of 9-11 July 2019, as set out in the email that was tendered as exhibit 135.  Ms Portese had agreed with the complainant that the complainant would pay her $40 an hour for the transporting of the children and the supervision which was a total of $600 ($40 per hour for 15 hours).  Ms Portese took that $600 from withdrawals for a total $1,400 made on 3 August 2019 (transaction numbers 85-87).  Money that also needed for petty cash was taken from those cash withdrawals (although there was no note in the petty cash log for any addition of petty cash on 3 or 4 August 2019.)
71. [71]
    Ms Portese did not recall the withdrawal of $1,000 from Cairns Central on 5 August 2019 (transaction number 88).  (It is noted that $200 was logged in petty cash as “Budget from Jo” on 5 August 2019.)  In cross-examination, Ms Portese said that the complainant was with her when that withdrawal was made and took the $1,000.  Ms Portese did not recall the cash withdrawal of $250 made at the Red Beret Hotel on 10 August 2019 that was processed against the complainant’s account on 11 August 2019 (transaction number 89).  Although Ms Portese did not remember the cash withdrawal of $550 at Cairns Central on 16 August 2019 (transaction number 90), Ms Portese identified the withdrawal was made at the bank’s branch and stated that the complainant had to be present for the withdrawals at the branch.  (The petty cash log showed that $200 was added to the petty cash on 16 August 2019 with the notation “Budget (Jo)”.)
72. [72]
    There were three cash withdrawals at the Red Beret Hotel respectively on 16, 17 and 18 August 2019 for a total of $650 (transaction numbers 91-93).  Ms Portese gave all the cash to the complainant.  (It is noted that the petty cash log showed that Ms Portese put $45 in on 21 August 2019.)  The cash withdrawal on 16 August 2019 at the Red Beret was for $250.  Ms Portese was cross-examined on why the complainant asked Ms Portese to withdraw $800 on that day in two separate transactions and Ms Portese could not remember.  Ms Portese disagreed with the suggestion that the complainant was not with her on 16 August 2019 when $550 was withdrawn at Cairns Central.
73. [73]
    Ms Portese recalled neither the cash withdrawal of $700 on 2 September 2019 nor the cash withdrawal of $1,000 on 11 September 2019 (transaction numbers 94 and 95).  Ms Portese conceded in cross-examination that she deposited $800 from this withdrawal on 11 September 2019 into her own account on the same day and that it was for reimbursement of what Ms Portese had paid on account of the complainant’s electricity account and the gardener.  Ms Portese accepted that the only three Ergon Energy bills for the second address that were paid by Ms Portese in 2019 were those tendered as exhibits 132, 133 and 134 (which were for a total sum of about $1,579).  Ms Portese did not remember the cash withdrawal of $600 at Smithfield shopping centre on 14 September 2019 (transaction number 96).  (It is noted that the petty cash log showed that $250 was paid in by Ms Portese on 15 September 2019.)  Ms Portese withdrew $500 from the Commonwealth Bank ATM at Redlynch on 16 September 2019 (transaction number 97) which she applied to reimburse herself for money that the complainant owed her.  Ms Portese did not remember any of the cash withdrawals at Smithfield shopping centre on 17, 23 and 25 September 2019 for the total sum of $2,200 (transaction numbers 98-100).  She did not remember whether the deposit of $300 to her account on 23 September 2019 was from the cash withdrawal of $400 that she made on that date from the complainant’s account (transaction number 99).  Ms Portese did not remember the withdrawals of 29 September 2019 or 1 October 2019 each of which was for $300 (transaction numbers 101 and 102).  (It is noted that $100 was added to the petty cash on 29 September 2019 with the notation “Jo Budget”.)
74. [74]
    Ms Portese did recall the cash withdrawal of $1,100 at Smithfield shopping centre on 10 October 2019 (transaction number 103).  She gave the entire amount to the complainant as that was the day she went around and helped the complainant wax herself.  (It is noted in the petty cash log for 10 October 2019 that “money in” was $100.)  Ms Portese was cross-examined about a deposit of $750 into her account on 10 October 2019.  She disagreed that came out of the withdrawal of $1,100 and said that she “could have” got that from her friend who owned the Red Beret.  There were two withdrawals on 12 October 2019 at the Red Beret that were processed against the complainant’s account on 13 October 2019 for a total sum of $460 (transaction numbers 104 and 105) which Ms Portese gave to the complainant.  There was a cash withdrawal of $100 at Westpac Earlville on 15 October 2019 (transaction number 106) and on the same date there was also a cash withdrawal of $300 (transaction number 107).  The complainant had asked Ms Portese to withdraw the sum of $100 for the children and the cash withdrawal was for her petty cash.  (There is no entry in the petty cash log for 15 October 2019.)  There was another cash withdrawal of $300 at Smithfield shopping centre on 19 October 2019 (transaction number 108) (that coincides with the petty cash log showing a top up of $250 with the notation “Money in from Jo” on 19 October 2019).
75. [75]
    Ms Portese was on holiday on the Gold Coast when she withdrew $300 at the ATM at the Paradise Centre on 30 October 2019 (transaction number 109) to make purchases of tops and novelty toys requested by the complainant.  As the complainant still owed Ms Portese money, Ms Portese withdrew a total of $140 at the Parkview Hotel on 5 November 2019 (transaction numbers 110 and 111).  The Parkview Hotel was owned by her friend who owned the Red Beret Hotel.  Ms Portese was having lunch with this friend and she had spoken to the complainant first about making the withdrawals.  She corrected her evidence in cross-examination and said she was not having lunch with this friend but having lunch at the hotel with a girlfriend.  When it was pointed out to Ms Portese that 5 November 2019 was Melbourne Cup Day, she confirmed she was there to have lunch and was not there with anything to do with the Melbourne Cup.  The cash withdrawal of $200 at the Holloway Beach Sports Club on 8 November 2019 (transaction number 112) was made at the complainant’s request and Ms Portese gave the cash to her.  Ms Portese did not recall the withdrawal of $860 on 15 November 2019 (transaction number 113).  (It is noted that the petty cash log showed that on that date $270 was received from Ms Portese.)
76. [76]
    Ms Portese made the two withdrawals in total of $320 on 16 November 2019 at the Red Beret (transaction numbers 114 and 115) at the complainant’s request that were processed against the complainant’s account on 17 November 2019 and gave the cash to her.  Ms Portese withdrew $200 on 22 November 2019 (transaction number 116) which the complainant requested for petty cash.  (It is noted that the petty cash log showed money in from Ms Portese on 22 November 2019 of $200.)  Ms Portese withdrew $200 on 8 December 2019 (transaction number 117) which the complainant requested for petty cash (and that accorded with the petty cash log that showed money in of $200 on 8 December 2019).  Ms Portese used the cash withdrawal of $250 on 12 December 2019 (transaction number 118) for buying Christmas presents for the complainant’s children.  (It is noted that the petty cash log showed $110 as money in from Ms Portese on 12 December 2019.)  Ms Portese withdrew $300 on 24 December 2019 (transaction number 119) that was for petty cash for the complainant which she gave to her.  (It is noted that the petty cash log showed that $200 was received from Ms Portese on 25 December 2019 and also that the amounts of $50 and $300 were received into petty cash from Ms Portese on 5 and 6 January 2020 respectively.)
77. [77]
    There was never any time up to 24 December 2019 that Ms Portese thought that the complainant did not have capacity to make her own decisions.
78. [78]
    Ms Portese was cross-examined on the frequent transactions at Coles Supermarkets recorded in the complainant’s bank statements.  Ms Portese conceded that when she shopped for the complainant at Coles and was paying for groceries, there were occasions when she took cash out as well.  Ms Portese had the complainant’s permission to withdraw money at the same time as using the card to pay for groceries.

Were the verdicts unreasonable?

79. [79]
    The role of an appellate court in determining the question of fact as to whether verdicts are unreasonable must be undertaken as outlined in M v The Queen (1994) 181 CLR 487 at 493–495.  As observed in M (at 493), in answering the question whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the particular charge:

“… the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.”

80. [80]
    To the extent that it can be inferred that the verdicts of guilty reflect the jury’s rejection of most, if not all, of the exculpatory evidence of Ms Portese, this Court’s assessment of whether the verdicts are unreasonable must be undertaken giving due weight to the jury’s rejection of that evidence of Ms Portese, as the jury had the benefit of seeing and hearing Ms Portese give evidence.
81. [81]
    In respect of count 1, the prosecution case at the trial was put on alternative bases.  The first alternative was that, at the time of making the cash withdrawals, Ms Portese did not have the authority to make any or all of the cash withdrawals in the amounts made and Ms Portese knew that she did not have the authority to make those withdrawals in the amounts made.  The second alternative was that, if Ms Portese obtained the authority to make any or all of the cash withdrawals, Ms Portese knew that, at the time of obtaining that authority, the complainant was vulnerable to making unsound financial decisions and Ms Portese knowingly took advantage of that vulnerability.  In respect of each alternative, the prosecution case was that Ms Portese conducted herself with that state of knowledge, belief and intent and her conduct was dishonest by the standards of ordinary honest people.
82. [82]
    Similarly, the prosecution case for count 2 was based on two alternatives.  The first alternative was that Ms Portese transferred $20,000 from the bank account of the complainant’s son into the bank account of Ms Fendley without the complainant’s authority and, at the time of transferring the money, Ms Portese knew that she did not have such authority.  The second alternative was that, if Ms Portese obtained the authority from the complainant to make the bank transfer, Ms Portese knew that, at the time of obtaining that authority, the complainant was vulnerable to making unsound financial decisions and Ms Portese knowingly took advantage of that vulnerability.  In respect of each alternative case for count 2, the prosecution case was that, because Ms Portese conducted herself with that state of knowledge and intent, her conduct was dishonest by the standards of ordinary honest people.
83. [83]
    In respect of each count, the articulation of the prosecution case conforms with the requirements for dishonesty offences re-stated in R v Mirotsos [2022] QCA 76 at [29].
84. [84]
    To assist the jury in their deliberations, the prosecutor had prepared a schedule (MFI “G”) that dealt with the details of each transaction, the references to the relevant documents in exhibit 1 relating to each transaction, the references to the relevant carer’s case notes and also transcript references of relevant evidence.  Ms Portese’s trial counsel had also prepared for the jury a defence table (MFI “H”) of accountable expenditure with relevant references to exhibits and evidence.
85. [85]
    It was open to the jury to consider the content of the carers’ case notes and the collective evidence of the carers as to the complainant’s lifestyle, including household members, grocery spending through petty cash, diet, other spending habits, ability to go out to enjoy social activities, daily wardrobe, the declining state of her general health and cognitive ability together with the evidence of Dr Wilson to reject Ms Portese’s evidence which painted a very different picture of the ability of the complainant to make sound financial decisions and exercise control over her own finances during the offending period.  The extent of the transactions and rate of withdrawals revealed in the complainant’s bank statements during the offending period was inconsistent with evidence otherwise of the complainant’s medical condition, financial position and needs.  The recitation of Ms Portese’s evidence set out above revealed numerous inconsistencies within her own evidence and when assessed against the carers’ evidence and relevant documents highlighted the implausibility of her explanations for her persistent withdrawals of cash from the complainant’s account.  The fact that Ms Portese failed to record the expenditures she said she made on behalf of the complainant so that she could match reimbursements from the complainant’s funds with those expenditures made her explanations unconvincing as to why she took the cash on many occasions for herself.
86. [86]
    The confidence Ms Portese obviously felt about her influence over the complainant and control of the complainant’s finances was reflected by her procuring the complainant who was on a pension and suffering from a degenerative condition for which she required assistance from carers on a daily basis to lend $20,000 in May 2019 to Ms Fendley who was in a precarious financial position and could otherwise not obtain a loan.
87. [87]
    It was open to the jury to prefer Ms Fendley’s evidence that the preparation of the invoice (exhibit 10) addressed to the complainant for the amount that was similar to the amount set out in the search warrant executed at Ms Portese’s address on 8 April 2020 was at Ms Portese’s request.  It did not make sense for Leading Business Solutions to render an invoice for the time spent by Ms Portese with the complainant, when Ms Portese was not doing that as an employee of that business.  The procuring by Ms Portese of Ms Fendley to prepare that invoice and accompanying letter (exhibit 9) that was posted by Ms Portese to the complainant was evidence of consciousness of guilt on Ms Portese’s part that was a circumstance pointing to her guilt in conjunction with the other evidence.
88. [88]
    Even though the prosecution case for count 1 was conducted on alternative bases, the state of the evidence was such that it was not possible to exclude that some, or parts of some, transactions may well have been authorised by the complainant.  Rather than conduct a minute examination of all the evidence relating to each transaction, it is more straightforward to consider this ground of appeal in relation to count 1 on the basis of the alternative case to lack of authority.
89. [89]
    When Ms Portese’s exculpatory evidence is put aside (as it was open to the jury to do), the prosecution case for proving beyond reasonable doubt the complainant’s vulnerability to making unsound financial decisions and that Ms Portese knowingly took advantage of that vulnerability in making cash withdrawals that were the subject of count 1 where the expenditure of that cash was not for the complainant’s benefit and procuring the complainant to make the loan that was the subject of count 2 was overwhelming.
90. [90]
    As the jury returned the verdict of guilty of count 1 with the circumstance of aggravation, the question of whether that verdict was unreasonable must also address whether it was open for the jury to find that the circumstance of aggravation that the amount of the financial detriment was more than $30,000 was proved beyond reasonable doubt.  The total figure for the 118 transactions particularised by the prosecution of $60,185 was net of the top up of petty cash that was recorded in the petty cash ledger and could be attributed to Ms Portese.  Some allowance could also be made for the top up of petty cash by Ms Portese between September 2018 and 23 June 2019 for which there was no petty cash ledger.  There were some expenses for which Ms Portese gave reasons for reimbursing herself which brought into question whether the jury could be satisfied that all or part of the related cash withdrawal amounted to fraud.  Some allowance could have been made in Ms Portese’s favour for the fortnightly payments made to the gardener each of $80 between, say, 1 March 2019 and 24 December 2019 (excluding the three payments of $80 taken from petty cash for the gardener on 22 August, 13 September and 15 November 2019).  An allowance could have been made for the sum of $600 taken by Ms Portese for supervising the complainant’s contact with her children in July 2019, $800 for the purchase of the second-hand Balinese television cabinet and coffee table and electricity payments of $1,579 for the second address (exhibits 132, 133 and 134).  Some allowance could also be made in Ms Portese’s favour for the purchase of the items for which there was independent evidence of the purchase using cash withdrawn from the complainant’s account which would extend to the Pandora bracelet for Ms Piggott, the washing machine, the lounge chairs and the dining table and chairs, but not for the excess cash that was drawn out at the same time above the cash amount required for the purchase.  Even making these allowances to the transactions that were the subject of count 1 results in cash withdrawals that significantly exceeded $30,000 in total.
91. [91]
    It was for the jury to apply their understanding of what was honest by the standards of ordinary honest people to decide whether Ms Portese’s conduct in knowingly taking advantage of the complainant’s vulnerability to making unsound financial decisions in effecting cash withdrawals that were not for the benefit of the complainant was dishonest.  A consideration of all the evidence relating to count 1 makes apt the characterisation of Ms Portese’s conduct as using the complainant as her own personal bank.  The jury’s conclusion as to Ms Portese’s dishonesty in respect of count 1 is unimpeachable.  There is absolutely no basis for challenging the jury’s conclusion as to the dishonesty of the appellant’s conduct in procuring the loan that was the subject of count 2 in the circumstances that to Ms Portese’s knowledge applied to the complainant at the time the loan was made.
92. [92]
    Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Ms Portese was guilty of counts 1 and 2.

Miscarriage of justice due to trial judge’s refusal to adjourn trial

93. [93]
    Ms Portese submits that a miscarriage of justice arose from the failure of the trial judge to adjourn the trial.
94. [94]
    The only reports that were placed before the trial judge on the application for adjournment of the trial on 14 July 2022 were the three letters from Dr Pozzi.  Apart from the general observation of Dr Pozzi about the recognised cognitive effect of the medication prescribed for Ms Portese, there was no expert evidence as to the effect of the medication on Ms Portese or evidence from Ms Portese as to the medication she was taking and the effect on her.  There was no evidence from an appropriately qualified health care practitioner about the “associated psychological disturbance” with Ms Portese’s ongoing pain referred to by Dr Pozzi in his letters of 8 and 11 July 2022.  Dr Pozzi’s opinion as to the psychological disturbance was not within his expertise as an orthopaedic surgeon.
95. [95]
    It is apparent from the affidavits that deal with the course of the adjournment application that the trial judge was sceptical about the request for an adjournment, particularly as Dr Pozzi’s letter of 13 July 2022 noted the “recent flare up” of Ms Portese’s medical condition that had the effect of requiring increased medication and reducing her ability to ambulate.  The trial judge noted Dr Pozzi’s concern that sitting for five hours per day in court would be difficult for Ms Portese and was prepared to address that by reducing the sitting time during the trial to four hours per day.
96. [96]
    On the material that was put before the trial judge on 14 July 2022 and in the absence of an affidavit of Ms Portese swearing or affirming to the factual matters relied on to seek the adjournment, it cannot be concluded that any error was made in the trial judge’s refusal to adjourn the trial.  There was no further application for an adjournment and accommodations were made for Ms Portese’s medical conditions in the conduct of the trial.

Incompetence of counsel and solicitors

97. [97]
    Ms Portese seeks to show that there was a miscarriage of justice due to the incompetence of her legal representation.  In support of this ground, Ms Portese particularises the failure of her lawyers to pursue vigorously the adjournment of the trial because of Ms Portese’s mobility and medication issues.  Ms Portese’s submissions in relation to this ground are limited, as she has exercised her right to claim legal professional privilege in relation to her communications with her lawyers about the conduct of the trial.
98. [98]
    The gist of the other submissions made by Ms Portese in support of this ground is that there must have been inadequacies on the part of her lawyers, as otherwise she would not have been convicted.  That is a circular argument and does not itself indicate there was a miscarriage of justice unless Ms Portese succeeded in showing that the verdicts were unreasonable which she has not.

Lack of opportunity for the appellant to view the prosecution brief of evidence

99. [99]
    Ms Portese accepted that her lawyers had been provided with the prosecution brief of evidence in advance of the trial.  Her complaint on the appeal is that she was not given the opportunity before the trial to peruse fully the prosecution brief of evidence in order to provide her lawyers with instructions.
100. [100]
     Provision by the prosecution of the brief of evidence to Ms Portese’s lawyers satisfied the prosecution’s obligation of disclosure under the Code, as s 590AG of the Code specifies that a reference in division 3 of chapter 62 of the Code to giving or disclosing a thing to an accused person or an accused person viewing a thing includes a reference to giving or disclosing the thing to a lawyer acting for the accused person or a reference to a lawyer acting for the accused person viewing the thing.  It was a matter for the lawyers representing Ms Portese, as to how they fulfilled their professional responsibilities to her in obtaining informed instructions on the prosecution brief.
101. [101]
     In re-examination at the trial, Ms Portese made the statement that she had not seen the complainant’s bank statements from 2019.  She was recalled to give further evidence on that topic.  The first three pages of the complainant’s Everyday account statement commencing on 22 July 2018 was shown on the visualiser where it was apparent that transactions included in the 118 transactions were highlighted.  Ms Portese conceded that her lawyers had shown her the statements with the highlighted transactions and another document which was a spreadsheet that showed how each entry on the spreadsheet was related to one of the highlighted transactions on the bank statements.  She agreed that her lawyers took her instructions in relation to other transactions from those bank statements that were not highlighted.  Ms Portese agreed that the spreadsheet also identified the various caseworker notes from every single day to which those transactions related.  Ms Portese agreed that she gave her lawyers instructions on every one of the transactions that were highlighted and some that were not highlighted.  Ms Portese also provided instructions in relation to every page in the petty cash ledger.
102. [102]
     This ground of appeal is in substance a complaint by Ms Portese against her lawyers when she is not prepared to waive legal professional privilege in respect of the communications she had with her lawyers without which this ground cannot be properly explored.  In consequence, the ground is doomed to fail.
103. [103]
     In any case, as is submitted by the respondent, the perusal of Ms Portese’s evidence across four days of the trial showed she gave a detailed account of her dealings with the complainant, the relevant transactions alleged against her and other matters that were the subject of the prosecution case at the trial.  Ms Portese’s trial counsel’s cross-examination of the prosecution witnesses revealed her instructions which were consistent with the evidence she gave at the trial.
104. [104]
     Ms Portese does not succeed on any of the grounds of appeal relied on to challenge her conviction.

Sentence

105. [105]
     The sentencing remarks included the following.  Ms Portese was 51 to 52 years old at the time of offending and had no prior criminal history.  She had a complete absence of remorse.  Ms Portese as a paid support worker met the complainant who was severely disabled with a condition that was incurable and the complainant was encouraged by Ms Portese to rely on her.  When the complainant came into a modest inheritance, Ms Portese quit the supervision of the disability services provider and masqueraded as the complainant’s “substitute mother and advocate” and manipulated her way into control of the complainant’s finances, so that the support workers came to defer to her.  Ms Portese used the complainant as her own banking facility and then at trial claimed much of what she had done for the complainant was on the basis of reimbursement.  The amount of supermarket spending and cash withdrawals in the complainant’s bank statements far exceeded her need for groceries especially in the latter half of the offending period.  Although the supermarket expenditure was not part of count 1, it exposed Ms Portese’s lie about the constant need to withdraw cash for petty cash for the complainant.  Of the recorded cash withdrawals, most appear to have been at taverns with gambling facilities with multiple withdrawals on the same day.  There was no doubt that a substantial majority of the $60,000 from the 118 transactions was for Ms Portese’s personal benefit.  With respect to count 2, the time Ms Portese transferred the sum of $20,000 as a loan to her employer, she must have understood there was a very real risk that it would not be repaid.  After Ms Portese learnt of the police investigation, she sent the false invoice to the complainant which was “an attempt to legitimise the amount of the fraud under investigation”.  This was “a sustained dishonesty for a significant amount of money with devastating results for [the complainant]”.  It was “a protracted and callous course of calculated dishonesty”.
106. [106]
     The trial judge noted that Ms Portese had an issue with her foot on which surgery had been performed some six months previously.  The trial judge could not tell “whether the very recent mysterious flareup of pain is genuine or another deceit”.
107. [107]
     The trial judge considered the level of criminality was not limited to the amount of the fraud, as the gravamen of Ms Portese’s offending was in the gross betrayal of trust and its consequences.  The trial judge noted that the principles of deterrence and denunciation were particularly important for offending which was difficult to detect and involved the exploitation of vulnerable people who were cared for at home and relied on the honesty of others to manage their affairs.
108. [108]
     The authorities from this Court relied on by counsel before the trial judge were R v Ward [2008] QCA 222, R v Fuller [2009] QCA 195, R v Parish (2012) 223 A Crim R 1 and R v Flint [2015] QCA 275.
109. [109]
     Ms Portese did not make any submissions by reference to the comparable authorities.  She did submit that it was speculation on the part of the trial judge in relation to her sore foot.  That observation of the trial judge reflected Dr Pozzi’s description that there had been “a recent flare up of her medical condition” leading up to the trial.  The trial judge was expressing that her Honour could not make a finding either way about the whether the developments before the trial in respect of the condition of Ms Portese’s foot were genuine or not.
110. [110]
     In any case, there was no ground of appeal in relation to any fact-finding of the trial judge on sentencing.  The issue on the sentence leave application is whether the sentences were manifestly excessive.
111. [111]
     Of the authorities put before the trial judge, the most relevant were Ward and Fuller where the respective sentences were imposed when the maximum penalty for aggravated fraud was 10 years’ imprisonment.  The respective maximum penalties for counts 1 and 2 in Ms Portese’s trial were 14 years and five years respectively.
112. [112]
     The offender in Ward was 32 to 33 years old when, as an employee, he defrauded the company owned by his sister and brother-in-law of $97,810.30 over a period of 20 months in 85 separate transactions.  He had no criminal history and pleaded guilty at the committal.  His offending was described as a gross breach of trust and put a strain on the victims’ relationships, financial position and business reputation.  It was a significant aggravating feature that he attempted to evade responsibility by further dishonest conduct when challenged about the transactions.  He was sentenced to five years’ imprisonment suspended after 20 months for an operational period of five years.  The head sentence was described as “a substantial one”, but appropriate in the circumstances of the case and not manifestly excessive.
113. [113]
     The offender in Fuller was convicted after trial of five counts of aggravated fraud involving a total sum of $217,000.  She defrauded a vulnerable 91 to 92 year old man with very poor eyesight who was infatuated with her.  The offender induced two transfers of funds for $5,000 and $123,000 respectively by falsely representing the purpose of the transfers and forged the complainant’s signature on three cheques respectively for $40,000, $29,000 and $20,000 which the offender banked to her account.  Even though it was a very strong prosecution case on each of the counts, the matter went to trial and the appellant gave evidence which was described at [82] as “manifestly implausible”.  She had not shown any remorse.  The offender had no prior convictions but had no relevant mitigating factors.  She was sentenced to imprisonment for five years with parole eligibility at the halfway point and that was held not to be manifestly excessive.
114. [114]
     Particularly when the maximum penalty for aggravated fraud is now 14 years’ imprisonment, the sentence of five years’ imprisonment imposed on Ms Portese sits comfortably with these comparable authorities.  The sentences for dishonesty offences are not calibrated solely by reference to the amount of the fraud but to all the circumstances relevant to the offending and the circumstances of the offender: see R v Dick [2022] QCA 59 at [13].  As the trial judge observed, the purposes of deterrence and denunciation in imposing sentences are particularly important in dishonesty offences which are difficult to detect and where the victims are vulnerable people who are cared for at home who rely on the honesty of others to manage their affairs.
115. [115]
     Ms Portese has not shown that the sentences imposed on her after trial for the dishonesty offences which involved a gross breach of trust against a vulnerable complainant and were committed over a period of 17 months for which she has no remorse were unreasonable or plainly unjust.

Orders

116. [116]
     It follows that the orders which should be made are:

1. Appeal dismissed.
2. Application for leave to appeal against sentence refused.

117. [117]
     MORRISON JA:  I agree with Mullins P.
118. [118]
     BOND JA:  I agree with the reasons for judgment of Mullins P and the orders proposed by her Honour.