R v Bosscher[2024] QCA 253

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 27 November 2023, after a 28-day jury trial in the District Court at Brisbane, the appellant was convicted of one count of fraud to the value of $30,000.00 or more (Count 1) and eight counts of fraudulently falsifying a record (Counts 2 to 9).
2. [2]
   Count 1 alleged that on divers dates between 10 November 2011 and 20 September 2016, the appellant dishonestly applied to his own use or the use of another, a sum of money belonging to Bosscher Lawyers Pty Ltd (“Bosscher Lawyers”) and the property was of a value of more than $30,000.00.  Counts 2, 3, 5 and 7 alleged that on varying dates the appellant, with intent to defraud, produced costs agreements that he knew were false in a material particular.  Counts 4, 6, 8 and 9 made the same allegations but in relation to four separate invoices.
3. [3]
   The appellant was sentenced to seven years’ imprisonment for Count 1 and three years’ imprisonment for each of Counts 2 to 9.  The sentences of three years for each of Counts 2 to 9 were ordered to be served concurrently with each other, but cumulatively with the sentence of seven years for Count 1.  One hundred and seventy-nine days spent in pre-sentence custody was declared.
4. [4]
   The appellant appeals against his convictions on the following seven grounds:

5. [5]
   The appellant, an experienced criminal solicitor, represented himself in the course of the trial.  On 24 May 2024, some six months after the verdict and just prior to sentencing the appellant, the trial judge recorded a number of observations.  These included that when the appellant was acting for himself he conducted his defence from the Bar table with an assistant, Ms Jenkins.  She was professionally dressed and sat beside the appellant with a laptop.  The appellant, who wore a suit, looked no different from any other solicitor-advocate.^[1]

The Crown case

6. [6]
   On 19 April 1994, the appellant commenced as an employed solicitor for a partnership of lawyers engaged in a criminal law practice.  On 20 April 1995, the partnership became known as Ryan & Bosscher Lawyers.  The appellant became a partner on that date and the managing partner on 1 July 1995.  He held this position as managing partner until 4 December 2007.  Timothy Meehan (“Meehan”) commenced as an employed solicitor with Ryan & Bosscher Lawyers on 6 July 2000.  He became a partner on 19 February 2003, and replaced the appellant as managing partner on 5 December 2007.
7. [7]
   Alexander Jones (“Jones”) commenced as an employed solicitor of Ryan & Bosscher Lawyers on 1 July 2009.
8. [8]
   Ryan & Bosscher Lawyers ceased operation between 2010 and 2011 as a result of the partners’ inability to service debts that were owed to creditors of the partnership.
9. [9]
   Bosscher Lawyers was registered as a company under the Corporations Act 2001 (Cth) on 11 November 2011.  Upon registration, the wife of the appellant, Mrs Bosscher, was the sole shareholder of the company.  Between the registration date and 19 September 2016, Mrs Bosscher was the sole director and secretary of the company.
10. [10]
    On 14 November 2011, Bosscher Lawyers commenced engaging in legal practice.  Solicitors and clerks were employed to provide legal services in criminal law matters on behalf of the company.  All employees of the company were paid a salary.
11. [11]
    The appellant, Meehan and Jones commenced as employed solicitors of Bosscher Lawyers on 28 November 2011.  Meehan’s employment, for reasons outlined below, was terminated on 16 August 2016.
12. [12]
    Thomas Strofield (“Strofield”) commenced as an employed clerk of Bosscher Lawyers in February or March 2014, and resigned from his employment on 31 August 2016.
13. [13]
    A reason for the incorporation of Bosscher Lawyers was that because of the financial difficulties of the previous law firm Ryan & Bosscher, both the appellant and Meehan had become bankrupt.  The appellant became insolvent on 14 March 2012 and was declared bankrupt on 2 May 2012.  He was discharged from bankruptcy on 3 May 2015.  Meehan was declared bankrupt on 19 March 2013, and discharged from bankruptcy on 20 March 2016.  Both were subject to the provisions of the Bankruptcy Act 1966 (Cth) during their respective periods of bankruptcy.
14. [14]
    The Crown’s case in relation to Count 1 was that there was an agreement or arrangement between the appellant, Meehan and Jones to divert cash payments made by clients for legal services provided by Bosscher Lawyers, away from the company.  This resulted in some or all of these cash payments not being deposited into either the general or trust accounts of Bosscher Lawyers.  Instead, cash payments were applied to the participants’ own use or the use of another for their own personal ends.  The Crown’s case was that it was the appellant who proposed this agreement or arrangement.
15. [15]
    Meehan’s evidence as to the agreement or arrangement was that after he and the appellant became bankrupt, the appellant suggested an arrangement that for clients who paid in cash, these payments would either be split equally between the appellant, Meehan and Jones, or that only a part of the payment would be deposited into the accounts of Bosscher Lawyers.  The person who would ordinarily determine the ratio of any split was the appellant.  According to Meehan, it was also the appellant who determined how much, if any, of the cash payments would be paid into the accounts of Bosscher Lawyers.  Meehan’s evidence was that Jones was involved in this arrangement from the beginning.
16. [16]
    It was up to the individual practitioner as to which clients would be selected for the purposes of making cash payments.  Meehan’s understanding was that if cash was retained by the appellant, it would not be placed into either the general account or the trust account of Bosscher Lawyers, and there would be no payment of GST.
17. [17]
    Jones’ evidence was that he was introduced into the arrangement by the appellant and Meehan.  His evidence of the arrangement differed from Meehan.  Initially, Jones’ evidence was that it was explained to him the arrangement only related to general account monies which would be dispersed as Bosscher Lawyers saw fit.  The cash payments were in the nature of a cash bonus.  The cash would be divided between the appellant, Meehan and himself.  Jones believed that the arrangement was legitimate and that there was no process of encouraging clients to pay cash.  He understood that the cash distributed under the arrangement would never appear in the accounts of Bosscher Lawyers.  Ultimately, he accepted that not all the monies under the arrangement were general account monies.  He believed that Meehan was taking trust monies.  According to Jones, he would not have participated in the arrangement if he believed it was trust money, because if it was trust money it should have been paid into the trust account of Bosscher Lawyers pursuant to the provisions of the Legal Profession Act 2007 (Qld).
18. [18]
    When the topic of the arrangement was revisited, Jones recalled that there were meetings where cash payments gathered under the arrangement would be discussed.  The appellant would decide what would happen to those funds, namely whether or not they would be deposited into the trust account, and if so, how much was to be deposited into the trust account.  The appellant would also decide how much each person would receive.
19. [19]
    The Crown relied on 81 transactions in relation to Count 1.  The Crown opened 81 separate transactions, which occurred between 10 November 2011 and 20 September 2016, involving cash payments that were made to either the appellant, Meehan or Jones, and/or their agents.  In the course of the Crown’s opening, the jury were provided with a folder containing the indictment and the particulars concerning the criminal liability of the appellant pursuant to s 7(1)(a) and s 8 of the Criminal Code.  The particulars also contained the details of the 81 transactions, identifying the date of the transaction, the relevant client, the responsible/supervising solicitor, and the quantum of the cash payment.^[2]  The folder also contained admissions in relation to the client or other parties involved in the cash payment.  These admissions concerned facts regarding the legal representation provided to the client and the payment for that legal representation.  These admissions related to approximately 35 persons who were involved in the 81 transactions.
20. [20]
    In the Crown’s opening these 81 transactions were referred to as “specific instances of fraud”.^[3]  On Day 14 of the trial, the Crown abandoned six of these “specific frauds” and the jury were informed that those six transactions were “no longer part of the Crown case”.  After the close of the Crown’s evidence but before the appellant addressed the jury,^[4] the appellant submitted in the absence of the jury, that several of the transactions said to constitute specific frauds could not be maintained.  The Crown subsequently abandoned a further 16 specific frauds.  This resulted in the jury being given a document marked MFI-“R” in the trial, which crossed out 22 of the 81 transactions.  When given MFI-“R”, the jury were informed by the Crown prosecutor that it contained “transactions the prosecution concedes cannot be proved”.  On Day 27 of the trial, in the course of the appellant’s closing address, the Crown abandoned a further two transactions.  The jury were instructed by the learned trial judge to cross out transactions 64 and 66 on the basis that it was “conceded that the evidence … is not sufficient … to prove fraud … in respect of those two transactions”.^[5]  For present purposes, it should be noted that some of the transactions abandoned by the Crown included large amounts of cash in which Meehan was the solicitor who dealt with the client.  For example, two of the transactions which were abandoned, 7 and 39, each involved amounts of $10,000.00.  In relation to abandoned transaction 39, the evidence was that Meehan had directed Ms Larcombe-Weate to have the client deposit his fees directly into an account associated with Meehan and not an affiliated account of Bosscher Lawyers.^[6]  It should also be noted that of the 54 transactions that remained, those transactions which involved Meehan consistently concerned the largest amounts of cash.  For example, transaction 3 involved $15,000.00 to $30,000.00; transaction 11, $30,000.00; transaction 13, $50,000.00; transaction 26, $70,000.00 to $80,000.00; transaction 38, $22,000.00; transaction 47, $80,000.00; transaction 51, $20,300.00; transaction 52, $30,000.00; and transaction 62, $20,000.00.  A number of those larger amounts were in relation to a client Mr Luu, who mainly dealt with Meehan.  Mr Luu, along with a number of other clients, were called as witnesses at trial.
21. [21]
    The Crown relied on the evidence of Meehan, Jones, Strofield and Luu as providing some direct evidence of the agreement or arrangement.  The respondent, in its written submissions, accepts that Jones did not come up to proof.^[7]  The Crown also relied on text messages exchanged between Jones and Meehan and between Jones and others, consistent with the existence of the agreement or arrangement.  The Crown also relied on text messages to and from the appellant.
22. [22]
    By reference to this evidence, the respondent submits that the Crown’s case was neither built nor centred on Meehan’s evidence.^[8]  Meehan’s evidence was however, as discussed below, central to the Crown’s case in relation to Counts 2 to 9.  It was also of considerable significance in relation to the Crown establishing Count 1 and, in particular, the proving of the alleged agreement or arrangement.
23. [23]
    The Crown relied on three other bodies of evidence aside from Meehan, Jones, Strofield, Luu, the text messages and the clients who made the cash payments; namely, junior employees of Bosscher Lawyers, two financial analysts and limited police evidence.  There was evidence which related to the general processes for payments at Bosscher Lawyers.  This evidence came from administrative staff, law clerks and other junior solicitors.  Some of these witnesses also gave evidence of the alternative process for payments and that there was a general preference for clients to pay cash.  Another category of evidence was from two financial analysts.  This evidence showed that where payments were made by clients using cash, these payments were not accurately or at all recorded  in the accounting records of Bosscher Lawyers.  A further miscellaneous category of evidence included the evidence of Mr Edwards from the Queensland Legal Services Commission in relation to the appellant’s knowledge of the requirements of the Legal Profession Act 2007.
24. [24]
    As already observed, in relation to the criminal liability of the appellant, the Crown relied on both s 7(1)(a) and s 8 of the Criminal Code.  This was particularised as follows:

3. “2.
   Section 7(1)(a): In relation to one or more amounts of cash received from one or more of the persons described under the ‘Client’ column of Annexure A, Michael Frederick Bosscher dishonestly applied:

3. a.
   a sum of trust money to his own or another's use by withholding, or agreeing to withhold, or causing to be withheld, some or all of that trust money from entering the general trust account of Bosscher Lawyers Pty Ltd and joining in sharing that sum of money with another or others; or

3. b.
   a sum of money, that was the property of Bosscher Lawyers Pty Ltd, to his own use or another's use by withholding, or agreeing to be withheld, or causing to be withheld, some or all of that money from the business account of Bosscher Lawyers Pty Ltd and joining in sharing that sum of money with another or others.

3. Conjointly or alternatively

3. 3.
   Section 8: Michael Frederick Bosscher, with another or others, formed a common intention to prosecute the unlawful purpose of dishonestly withholding monies from Bosscher Lawyers Pty Ltd.

3. 4.
   One or more amounts of cash received from one or more of the persons described under the ‘Client’ column of Annexure A was money belonging to Bosscher Lawyers Pty Ltd and was dishonestly applied to the use of Michael Frederick Bosscher or another or others by Michael Frederick Bosscher, Timothy Vincent Charles Meehan or Alexander Ralston Jones, which was an offence of such a nature that its commission was a probable consequence of the prosecution of that purpose.”

25. [25]
    It is apparent from these particulars that central to the Crown case was proof of the agreement or arrangement between the appellant, Meehan and Jones.  As Jones did not come up to proof, this evidence primarily came from Meehan.  This was confirmed by the Crown prosecutor in the following exchange with the trial judge:^[9]

“HER HONOUR: I asked – I think I asked if you would do a summary of the evidence in relation to the common purpose. Do you have that or do you just want to give me the references to that at the moment?

MR CUMMINGS: Your Honour, the evidence in support of that comes essentially from Mr Meehan and his description of the arrangement; that is, that [monies] would be withheld and then [the appellant] would control what would happen to that money after that event. And that, in essence, is where the evidence of the common purpose comes from, and that arrangement, on Mr Meehan’s evidence, was with [the appellant] and Mr Jones right from the start.”

26. [26]
    Her Honour then queried how the withholding of $100,000.00 in cash by Meehan could constitute a probable consequence of the common purpose.  The Crown prosecutor’s response further demonstrates the importance of Meehan’s evidence, including the large amounts involved in transactions where Meehan was the relevant legal representative:^[10]

“Yes, it can [constitute a probable consequence].  Because as … Mr Meehan described the arrangement, once the arrangement was in place – and this is very clear in his evidence – what was contemplated by the arrangement was that each of them would scout for whichever matters they considered appropriate to invite payments of cash.  So it was up to the individual participants to decide which clients they would target without any supervisory input from Mr Bosscher at that stage.  Once the money was withheld after a client had been selected, then Mr Bosscher would control what happened to the money from there.  So the initial scope of the criminal purpose was, ‘We will have this arrangement, money will be withheld.  It’s up to the three of us to decide which clients we’ll select for this arrangement, but after that, Mr Bosscher controls what happens to the funds.’”

27. [27]
    In light of this explanation by the Crown prosecutor, it may be readily understood why transaction 39 was abandoned.  Where there was direct evidence that Meehan had instructed that the $10,000.00 cash be paid into his own account (and it therefore was not available to be shared in accordance with any agreement or arrangement), the transaction could not constitute evidence of a common unlawful purpose.  This was reflected in the trial judge’s direction to the jury that where there was evidence that a client had made a bank transfer into an account controlled by Meehan, or that Strofield, for example, had kept the whole of the cash payment for himself, the appellant was not criminally liable.  This was because there was no evidence that the cash was withheld by the appellant personally or that the cash was withheld as a probable consequence of the appellant, Meehan and Jones carrying out their common unlawful purpose to withhold cash payments.^[11]
28. [28]
    As to Meehan’s termination on 16 August 2016, his evidence-in-chief was that he was called into the appellant’s office where, apart from the appellant, Mrs Bosscher and Jones were also present.  He was handed a document.  The appellant told him that he had been stealing from Bosscher Lawyers and that he was sacked.  His employment was terminated immediately.^[12]  In cross-examination, Meehan could not recall exactly what he said at this meeting.  He recalled being given a document.  He did not recall apologising or saying the words “I’m really sorry”.^[13]  He did not recall being informed by the appellant that the meeting was being recorded.  He did not recall the appellant saying to him that he had been stealing from Bosscher Lawyers and that the Law Society had to be informed.  Meehan did not recall raising any objection about his employment being terminated.  He believed that the specific reason he was sacked was because of an allegation that he had been stealing.^[14]
29. [29]
    This evidence was given by Meehan on 25 October 2023, which was Day 8 of the trial.  When Meehan’s cross-examination resumed on 7 November 2023,^[15] after a 12-day hiatus which is explained below, he was questioned by the appellant about the conversation which occurred when his employment was terminated.  Meehan agreed that he had in fact apologised more than once.^[16]  Meehan did not accept however, that his apology constituted an admission to stealing.^[17]  When reminded of his evidence at the committal hearing, Meehan ultimately accepted that when terminated he had confessed to stealing from Bosscher Lawyers:^[18]

“And I put to you that is you admitting to stealing from the firm?---It’s not.

It’s not. And then I asked you whether or not you’d given – you recall giving evidence previously in a matter, this matter?---Yes.

At a preliminary hearing?---Yes.

And you were cross-examined by Mr Walsh?---Yes.

Do you recall that?---I do.

And before you gave your evidence, you went through the same process as you did here before this jury where you took the oath?---Yes.

And promised to tell the truth?---Yes.

And I suggest to you that during the proceeding you were asked this question:

All right. And in that interview you confessed to stealing from the firm, did you not?

And you replied:

Yes.

?---I don’t recall that.

And then I suggest to you further words were said where you were asked this question:

And that’s a conversation where you admit to having stolen from the firm, correct?

And you say:

Yes.

?---I don’t recall.

So you don’t recall ever saying those words before?---No, I don’t recall that, no.

Somewhere in your material you suggest that you’re concerned that I can manufacture documents?---Yes.

Yes. Do you have any suspicion that I’ve manufactured this transcript?---No.

So do you accept you said those words?---I do.

You accept you said them on oath?---Yeah.

Yes. And so therefore you accept, I take it, that on oath you have admitted – you’ve accepted that you’ve admitted to stealing?---Yeah.

And you accept then that what you said to this jury not more than five minutes ago wasn’t true?---No, I don’t.

You don’t accept that?---No.

So even though you accept you said those words and that you accept that you made an admission to stealing and you told this jury that you, that did not constitute an admission, you don’t accept that that is contradictory with each other?---Oh, no, I certainly accept it is contradictory.”

30. [30]
    Despite having accepted that he had confessed to stealing from Bosscher Lawyers, Meehan sought to withdraw this admission in the following exchange in re-examination:^[19]

“Okay. Now, my - Mr Bosscher asked you if you had agreed to having confessed to stealing, at the preliminary hearing?---Yes.

And do you recall if you did?---I don’t. No.

If you had confessed, would that be true in your mind?---No.”

31. [31]
    The events following Meehan’s termination were the subject of the following admissions:^[20]

3. “(a)
   On 17 August 2016, [the appellant] informed the Queensland Law Society that Meehan’s employment had been terminated for cause.

3. (b)
   On 17 August 2016, … Meehan surrender[ed] his practising certificate to the Queensland Law Society.

3. (c)
   On 13 September 2016, … Meehan attended the Queensland Law Society and participated in an interview.

3. (d)
   On 14 September 2016, … Meehan attended the Crime and Corruption Commission and participated in an interview.

3. (e)
   On 22 June 2017 at the Brisbane Supreme Court, … Meehan pleaded guilty to one count of fraud and eight counts of producing false records.  He was sentenced to imprisonment on 14 July 2017.”

32. [32]
    During his cross-examination on Day 8 of the trial, Meehan had accepted that one of the reasons he went to the Crime and Corruption Commission (CCC) was to provide a statement to be used for the purposes of considering whether he could be granted an indemnity.^[21]  Although Meehan did not receive an indemnity against prosecution, he did undertake to give truthful evidence against the appellant.^[22]
33. [33]
    The Defence case was that there was no agreement or arrangement, and that the jury should reject Meehan’s evidence of the existence of any such agreement or arrangement.  An important aspect of the Defence case was to establish, through the cross-examination of Meehan, his admission to both the appellant and Jones that he had been stealing from Bosscher Lawyers.  As already observed, there were instances where Meehan had lied about cash being split in accordance with the agreement or arrangement, when in fact Meehan had caused the cash to be deposited directly into an account of his former wife, or an account associated with his apparel business.^[23]
34. [34]
    In relation to Counts 2 to 9, Meehan’s evidence was central to the Crown’s case.  The Crown’s case as opened was that Mr Luu, a client of Bosscher Lawyers who mainly dealt with Meehan, had paid over $500,000.00 in cash to Bosscher Lawyers for his own legal representation, as well as representation for his sister Ms Luu and a Mr Kruithof.  Meehan’s evidence was that this amount of cash was withheld from Bosscher Lawyers pursuant to the agreement or arrangement.  These transactions were not evidenced by either costs agreements or invoices.  The CCC commenced an investigation in relation to Mr Luu in late 2015.  As part of that investigation, the CCC issued notices to Bosscher Lawyers on 13 November 2015 concerning Mr Luu, Ms Luu and Mr Kruithof.
35. [35]
    In response to these notices, Meehan’s evidence was that he met with the appellant because there were no costs agreements or invoices.  According to Meehan, the appellant directed him to create false costs agreements and invoices.
36. [36]
    Meehan’s evidence-in-chief was that when he received the notices, he sought the appellant’s advice as to how best to deal with the matter.  The appellant told Meehan that he should open a document that had already been created for the relevant date range, so that the new document would look like it had been created for the appropriate date.  This involved opening an old document, saving it as a PDF, then printing and scanning it.  Meehan’s recollection was that he instructed Ms Larcombe-Weate to create the documents.^[24]  Ms Larcombe-Weate remembered that there could have been approximately eight documents, three of which were costs agreements.  Any instructions she received in relation to the creation of these documents came from Meehan.
37. [37]
    In cross-examination on Day 8 of the trial, Meehan accepted that the CCC notices first went to reception at Bosscher Lawyers and that after the initial correspondence, the CCC would direct its correspondence to him directly.  When he discussed the notices with the appellant, Meehan could not recall whether he had printed copies of the notices or had them on his laptop.  He could not recall sending the notices to the appellant.  While Meehan’s evidence was that he brought the CCC notices to the attention of the appellant because of the agreement or arrangement, he had no recollection of ever informing Jones of these notices.^[25]
38. [38]
    On 8 November 2023, which was Day 15 of the trial, the appellant in cross-examination of Meehan revisited his evidence in relation to Counts 2 to 9.  Meehan rejected the suggestion that his evidence – that he had created the documents at the direction of the appellant – was a fabrication.  He accepted that it was possible that Ms Larcombe-Weate had assisted him in creating the documents.^[26]
39. [39]
    Issues concerning Meehan’s credibility in relation to Count 1 and Counts 2 to 9 were interlinked.  This was because Meehan’s explanation for seeking the appellant’s advice concerning the CCC notices was his concern that an investigation would uncover the agreement or arrangement:^[27]

“… it sought information and material in relation to funds paid on behalf of [Mr Luu] and [Mrs Luu].  And of course some sums of money had been paid in cash and not deposited into the trust account.  So I was immediately concerned, having received those, that they were asking some sticky questions that could potentially unravel what we were doing.”

Ground 4: There was a miscarriage of justice by reason of the trial judge’s failure to discharge the jury pursuant to s 60 of the Jury Act

40. [40]
    On 13 November 2023, which was Day 18 of the trial, the appellant applied to have the jury discharged pursuant to s 60 of the Jury Act 1995 (Qld).
41. [41]
    For the purposes of applying to have the jury discharged, and only for that purpose, the appellant was represented by Ms O'Gorman KC, instructed by Mackenzie Mitchell Solicitors.
42. [42]
    As the Court is of the view that the trial judge’s refusal to discharge the jury occasioned a miscarriage of justice, it is appropriate to deal first with Ground 4.
43. [43]
    As a preliminary observation, in determining whether the refusal to discharge the jury occasioned a miscarriage of justice, ordinarily, the trial judge will be in a better position than an appeal court to assess whether, having regard to the course and atmosphere of the trial, any prejudice could be dispelled by a clear warning to the jury.  The present case is not one, however, where the two primary bases for the application to discharge the jury could have been adequately overcome by any directions from the trial judge.^[28]
44. [44]
    Before considering the relevant principles further, it is first necessary to outline the course of the trial, both prior to and after the application for discharge, and the context in which the application was advanced.

(a) The course of the trial

45. [45]
    The Crown’s opening occupied most of Day 1 (i.e. 16 October 2023).  Meehan’s evidence in relation to the agreement or arrangement was opened as follows:

“Now, what Mr Meehan will tell you – and this will be confirmed by Mr Jones – is that when [the appellant] was setting up Bosscher Lawyers Proprietary Limited, he suggested an arrangement, proposed an arrangement. And under that arrangement, on an ad hoc basis, instead of paying money to Bosscher Lawyers, clients would be encouraged to pay cash, and that cash would not be paid to Bosscher Lawyers Proprietary Limited. It wouldn’t go into the trust account. Rather, it would be … held by [the appellant] here in so much of it as he thought should be withheld. Some of it might go to the trust account. But that part that was withheld would then be shared between he and Mr Meehan as income that wouldn’t attract income tax, wouldn’t attract GST, would not go to Bosscher Lawyers for paying its accounts, and there was another benefit as well, and that was that [the appellant], whilst he was bankrupt, was effectively limited to a gross income of $70,000 a year, and what do I mean by that?

Mr Meehan will explain that he was subject to the same limitation and that any amount he earned above about that, that $70,000 a year, would be available to the creditors of Ryan and Bosscher because they hadn’t been paid. So it was with that state of knowledge and with those intentions that this money was withheld on these – in these 81 transactions. Now, you have to be careful about that last topic I mentioned to you because [the appellant] came out of bankruptcy on the 5^th of May 2015, so that only applies to transactions before that date. So the prosecution case is that by withholding that money from Bosscher Lawyers with that knowledge and with those intentions … that rendered the withholding and application of those funds … dishonest. So that’s where the prosecution says each of these 81 specific instances of fraud is proved.”

46. [46]
    From Day 2 (i.e. 17 October 2023) to partway through Day 6 (i.e. 23 October 2023), the Crown called 37 witnesses who were either clients, or friends and relatives of these clients.  These witnesses gave evidence in relation to a number of the 81 transactions.  This included evidence in relation to 13 transactions which the prosecution subsequently abandoned.  Admission documents were tendered in relation to these transactions.  The appellant’s cross-examination of these witnesses was relatively brief.
47. [47]
    The most significant witness, Meehan, was called on Day 6.  His evidence-in-chief commenced at 12.47 pm on Day 6 and was completed by 12.39 pm on Day 7.  The appellant then cross-examined Meehan for the balance of Day 7 and into Day 8.  The relevant aspects of Meehan’s cross-examination are dealt with above.
48. [48]
    At 3.05 pm on Day 8, which was a Wednesday, the appellant made a request of the trial judge in the following exchange:^[29]

“DEFENDANT: Your Honour, I’ve gone as far as I can with him in a structured way. I still have some more things to do. There’s some financial records, as well as I want to make a list to ensure I don’t offend Browne v Dunn and - - -

HER HONOUR: So you’re asking … for an overnight adjournment; is that what you’re … asking for?

DEFENDANT: Thank you, your Honour. Could I – and I’ll be guided by your Honour … I would suggest it would be preferable for him to come back on Friday. I’m happy to do other witnesses tomorrow, whatever witnesses my friend wants to call. But then there’d be no risk of him having to be recalled another day.

HER HONOUR: I would prefer to do it in the ordinary way.

DEFENDANT: Okay.

HER HONOUR: And so we’ll adjourn early today.

DEFENDANT: Thank you, your Honour.

HER HONOUR: And resume tomorrow. If you can bring the jury in, please.

BAILIFF: Yes, your Honour.

MR CUMMINGS: And your Honour, … if Mr Bosscher requires perhaps some extra time tomorrow morning to finish his preparation, I don’t oppose that course.

HER HONOUR: All right. Well, I won’t get the jury in before 10 o’clock and we’ll see – you can let me know how you’re going.

DEFENDANT: Yes, your Honour. I don’t think I have much left for him.

HER HONOUR: All right.

DEFENDANT: And I’m just concerned – and your Honour’s probably picked up on it, that I’m starting to lose my way a little bit. So - - -

HER HONOUR: I – it seemed to me that you’re doing it – a very good job at representing yourself, but certainly, take the time this afternoon and tomorrow morning.”

49. [49]
    The following day, on 27 October 2023 (which was Day 9 of the trial), the appellant appeared by telephone and informed the court that he was physically unwell.  A medical certificate from a general practitioner was produced.^[30]  In spite of the medical certificate stating that the appellant would be unfit for court for both 26 October 2023 and 27 October 2023, the appellant thought that he would be fine by 27 October 2023.  The Crown prosecutor, however, suggested that the matter should be adjourned to Monday 30 October 2023.  The appellant indicated that he was ready to proceed with the cross-examination of Meehan.  The Crown prosecutor gave an estimate that the Crown case would have concluded, but for the delay of two days, on Tuesday 31 October 2023.  With the two-day delay, the Crown prosecutor considered that the Crown case would conclude by Thursday 2 November 2023.  The trial judge noted, however, that the jury panel had been informed that the trial would take four weeks.^[31]  For reasons explained below, the Crown prosecutor’s time estimate for the remainder of the Crown case proved to be overly optimistic.
50. [50]
    No evidence was heard on 26 and 27 October 2023.
51. [51]
    On Monday 30 October 2023, which was Day 10 of the trial, the appellant appeared and informed the trial judge that he did not believe he was in a position to continue with the trial and to adequately defend or represent his interests.  The appellant informed the court as follows:

“I have suffered from depression for about a decade, and I’ve been medicated for it for that entire time.  I’ve also been under the treatment of various psychiatrists and psychologists over the course of that time.  I’m currently under the treatment of a psychologist.

Since I became ill on Wednesday – which I’m not convinced, but nor am I a doctor, that the two aren’t necessarily connected – I haven’t been able to – and I should say, I’ve had no symptoms since Saturday, physical symptoms, other than being in a constant state of sweat, but that could easily be attributed to my girth as opposed to anything else.  But I haven’t been able to eat.  I have not been able to sleep.  I have not worked.  The only time over those – that four day period that I even sat at my desk was when I had previously arranged for Ms Jensen to come over, so on – yesterday, for three or four hours, to do some filing, so it at least gave the impression that I was working.  But I couldn’t.  I literally read – well, not read the papers, I literally stared at my computer screen.

I have already prepared before I became unwell, the rest of Mr Meehan’s cross-examination, but I have not prepared anything in advance of that.  And I made contact with – well, I messaged my psychologist and asked for an urgent appointment … The situation is not one that seems to be improving.  In fact, if anything, it is deteriorating.”^[32]

52. [52]
    The trial judge’s initial reaction to receiving this information from the appellant, prior to the receipt of any expert psychiatric evidence, was as follows:

“Well, being tried for a serious offence is not likely to help anybody’s mental health.”^[33]

53. [53]
    The trial was adjourned so the appellant could obtain material.
54. [54]
    On 31 October 2023, which was Day 11 of the trial, the appellant appeared by telephone.  The court had received a short one-page letter from the appellant’s psychiatrist, Dr Khoo, dated 31 October 2023.^[34]  Dr Khoo referred to the appellant being a patient since June 2021.  The appellant had been treated for a major depressive disorder dating back to 2012.  For this disorder he was treated with antidepressant medication and, as required, outpatient psychiatric review.  Dr Khoo referred to the appellant representing himself in his criminal trial.  Dr Khoo opined:

“On the background of multiple other significant life stressors and in the context of dealing with his [court case], his symptoms have not surprisingly deteriorated such that he now presents with an acute relapse of his [major depressive disorder].  It is my opinion that he will further deteriorate if required to continue with his [court case].  Additionally, I do not feel that currently he is able to sufficiently fulfil his role in representing himself as legal counsel.”

55. [55]
    Dr Khoo’s recommendation was that the appellant appoint a lawyer to represent him.
56. [56]
    Having considered Dr Khoo’s letter, the trial judge observed that it fell well short of addressing the issue of fitness for trial.  The appellant’s response was that it was not a question of fitness that was being raised, but rather a question of fairness.^[35]
57. [57]
    The appellant indicated that he was still awaiting a psychologist report.
58. [58]
    The Crown prosecutor repeated his estimate that the Crown’s evidence would be completed in three or four days.
59. [59]
    The trial was adjourned to Wednesday 1 November 2023.
60. [60]
    On this day, which was Day 12 of the trial, the appellant was represented by Ms O'Gorman KC.  In circumstances where Ms O'Gorman KC had not received all the material, she apprehended that the appellant’s application would be for the trial judge to discharge the jury pursuant to s 60 of the Jury Act, rather than an application for a finding that the appellant was unfit for trial.  As matters transpired, the Crown preferred to have the appellant assessed by an independent psychiatrist, Dr Kovacevic.
61. [61]
    When informed of this independent assessment of the appellant’s psychiatric condition, her Honour expressed the following reservation:^[36]

“I’m just concerned about the length of time that this is taking, such that your client might get his way by default, rather than by the proper application of the principle and the law.”

62. [62]
    The trial was adjourned to 6 November 2023.  The court did not sit on Thursday 2 November 2023, nor Friday 3 November 2023.
63. [63]
    On Monday 6 November 2023, which was Day 1 of the application but Day 13 of the trial, her Honour heard the application for the jury to be discharged.  Both Ms O'Gorman KC and the Crown prosecutor accepted, on the basis of the evidence, that no submission would be made that the appellant was unfit for trial.  In support of the discharge application, Ms O'Gorman KC read the appellant’s affidavit sworn 6 November 2023, the report of Dr Khoo dated 31 October 2023, a supplementary report of Dr Khoo dated 1 November 2023, and a report of a psychologist, Donna Ward, dated 31 October 2023.  The Crown read the report of Dr Kovacevic.  The Crown did not require Dr Khoo or Ms Ward for cross-examination and Ms O'Gorman KC did not require Dr Kovacevic for cross-examination.  The Crown prosecutor did, however, cross-examine the appellant in relation to his affidavit.
64. [64]
    Ms O'Gorman KC identified the two bases for the discharge application:

“My submission is that it (the delay) would now be prejudicial on that basis alone, and certainly in conjunction with Mr Bosscher’s current impairments, for the trial to continue … the earliest that the evidence in the trial will resume is tomorrow, Tuesday the 7^th of November.

By that time, it will have been some 12 days since the jury last heard any evidence in this matter.”^[37]

(b) The appellant’s evidence on voir dire

65. [65]
    According to the appellant, at the time that he made the decision to represent himself he believed he would be able to conduct the trial to conclusion.  He was not suffering any symptoms of depression over and above those which he had lived with for a decade.  He did not apply for Legal Aid prior to the trial, as he did not believe he would meet the “means test”.^[38]
66. [66]
    On Saturday 21 October 2023, the appellant was able to work for six to eight hours productively.  However, he described that on Sunday 22 October 2023, his mood “plummeted”.  He was unable to do any work.  By Thursday 26 October 2023, he was physically ill.  Over the course of that Friday, Saturday and Sunday his mental health deteriorated “drastically”.^[39]  He could not concentrate on anything, he could not work, and he had no appetite.
67. [67]
    He undertook a number of steps to obtain both psychiatric and psychological assistance.  He was finally able to see Dr Khoo and Ms Ward on Tuesday, 31 October 2023.
68. [68]
    As to the appellant’s history of depression, he was first diagnosed with a major depressive disorder in about 2010.  He commenced seeing Dr Khoo in 2021.  He confirmed on oath that the symptoms he reported to Dr Khoo, Ms Ward and Dr Kovacevic were correct.
69. [69]
    In cross-examination, the appellant accepted that he had been aware of his depression since 2012 but had been able to conduct a busy legal practice since at least 2017.  While he could recall that his depression affected him coming to work on occasions, he did not recall any occasion where he was unable to appear in court.  He had in the past taken approximately six months off work to ensure the medication for his depression was correct, and that any improvement to his mental health condition was maintained.  This was in 2021.
70. [70]
    The appellant decided to represent himself in July 2023, although he had the assistance of a solicitor, Mr McKenzie.  While he had never applied for Legal Aid, he was intending to do so if the discharge application was granted.  He was uncertain whether he would be granted Legal Aid for the purposes of being represented at any future trial.  In cross-examination, the appellant accepted that he would have been eligible to apply for Legal Aid at least one month before the trial commenced.  He had, however, by that stage made the decision to represent himself.^[40]
71. [71]
    When he made the decision to represent himself, he considered that he was capable of doing so.  He was still of this view until the previous week.  He had been able to prepare the cross-examination of Meehan and considered that he had a further half day of cross-examination to go.
72. [72]
    The appellant was shown a list of witnesses to be called by the Crown.^[41]  This list showed that, apart from Meehan, there remained 31 witnesses to be called, including Jones, Strofield, Luu, both financial analysis, Ms Larcombe-Weate and Mr Edwards.  The appellant accepted that he had prepared at least some of the cross-examination for these witnesses.  He had conducted a Basha inquiry in relation to Strofield and Luu.
73. [73]
    In re-examination, the appellant estimated that he would be more than half a day cross-examining Meehan, “a better part of a day” for Jones, a couple of hours for Mr Luu and approximately half a day for Mr Strofield.  He thought he would be at least a day with Ms Watson, and two to three hours with Ms Beckett.
74. [74]
    As to any future application for Legal Aid, he considered that he would meet both the “means” and “merits” tests.
75. [75]
    It was not suggested to the appellant in cross-examination that he was malingering or had exaggerated his symptomatology.

(c) The medical evidence

76. [76]
    As already observed, Dr Khoo, in his report of 31 October 2023, diagnosed the appellant as suffering from an acute relapse of his major depressive disorder.
77. [77]
    In his supplementary report of 1 November 2023, Dr Khoo noted that the appellant presented with depressed mood, persistent negative/pessimistic/anxious rumination, deteriorating neurovegetative status and a deepening sense of hopelessness.
78. [78]
    Dr Khoo opined:

“With regard to his ongoing involvement [in] self-representing in court at this time, I have notable concerns that should he be compelled to continue, his current condition will deteriorate further resulting in worsening hopelessness, suicidal ideation and the emergence of more significant risk to self.  Additionally, I do not feel that at the present moment, given described increasing difficulties with attention, concentration, focus and short-term memory, Mr Bosscher will do his situation justice as a legal representative – in terms of being able to maintain focus on the evidence as it is given, planning, organising, and structuring his questions and submissions.”^[42]

79. [79]
    Ms Ward, in her report, noted the appellant’s description of a progressive decline in his mood over recent months, and that he “fell in a heap” about ten days prior to the interview on 31 October 2023.  The appellant considered that he had been coping reasonably well in public but had been returning to his residence and finding himself “sitting excessively, crying and completely unable to concentrate on his preparation and computer tasks”.^[43]  Based on the available information and assessment results, Ms Ward concluded that the appellant presented with current and acute symptoms of a depressive disorder, the extent and severity of which required further clinical assessment.^[44]
80. [80]
    Dr Kovacevic examined the appellant by video link on 1 November 2023 for approximately 1 hour and 45 minutes.
81. [81]
    As to the appellant’s presenting history, Dr Kovacevic noted that the appellant made the critical decision to represent himself, which was a decision he came to regret.  The appellant explained to Dr Kovacevic that this decision was primarily driven by financial necessity, as he was not eligible for Legal Aid.
82. [82]
    The appellant told Dr Kovacevic that the trial proceedings had, up to that stage, involved a number of former clients; namely, approximately 30 short witnesses that were able to be examined at the rate of six or seven per day.  The trial was about to enter the second stage where several former employees were about to give evidence against the appellant.  The appellant anticipated the cross-examination of those witnesses was going to be considerably longer.  These witnesses included two co-accused that he was expecting to cross-examine.  He was also anticipating cross-examining a number of former staff members, two forensic accountants, and half a dozen miscellaneous witnesses.  The appellant estimated that there were five or six days of evidence that remained.  He appreciated that his estimate was different to that of the Crown prosecutor.  He informed Dr Kovacevic that the most important evidence was still to be presented at trial and was going to be “the most challenging” for the appellant in terms of the amount of preparation and the cross-examination itself.  The appellant was also required to present his closing argument.
83. [83]
    The appellant informed Dr Kovacevic that he appreciated the “scepticism” of the Crown, and why it might seek to “raise the issue of malingering”.^[45]  This was why the appellant readily agreed to be being assessed by an independent psychiatrist.  While Dr Kovacevic’s opinion was sought by the Crown specifically in relation to the appellant’s fitness for trial, Dr Kovacevic also made a number of relevant observations as to the genuineness of the appellant’s underlying condition.  He considered that the symptomatology that the appellant presented with was consistent with the way that a major depressive disorder presents itself in a clinical context.  He noted that the appellant had a strong biological disposition which had to be taken into consideration, and that this weighed in favour of mental illness, as opposed to a simple reaction to stress that a criminal defendant would be expected to endure in his situation.  Dr Kovacevic considered that his mental state examination of the appellant was supportive of the appellant’s claim that he had suffered a decline in mood over the past week or so.  He agreed with Dr Khoo that the appellant had in fact suffered a relapse of his non-psychotic major depressive disorder, characterised with neurovegetative impairments, including in particular, sleep, concentration, appetite and energy levels.  He considered that the appellant’s condition overall was more than just a mere anxiety response associated with the stress of the trial proceedings.  This conclusion was supported by the appellant’s history of depression, as well as a heavy genetic loading for mental illness.
84. [84]
    The above opinions of Dr Kovacevic were consistent with his implicit conclusion that the appellant was not exaggerating his symptomatology or malingering.  These opinions were expressed in direct response to a number of questions the Crown had asked Dr Kovacevic to address concerning malingering and the truthfulness and accuracy of the appellant’s self-reporting to both Dr Khoo and Ms Ward.
85. [85]
    Dr Kovacevic could not rule out the possibility of the appellant’s mental state continuing to deteriorate if the trial was to continue.  While he thought that the applicant fulfilled the majority of the Presser^[46] criteria for fitness to stand trial, Dr Kovacevic opined that the appellant’s ability to conduct his own defence was “compromised to a moderate degree by the re-emergence of his depressive symptomatology”.  Dr Kovacevic therefore opined:

“I would expect that for the rest of the trial, even if there is no further deterioration in his mental state, his performance and effectiveness would decrease at the level of somewhere between 30-50%.  In other words, his trial effectiveness might be potentially reduced to almost a half of where he would have been expected to function in his full capacity.”^[47]

86. [86]
    As to Dr Khoo’s opinion that the appellant’s condition may further deteriorate should the trial continue, Dr Kovacevic acknowledged that Dr Khoo had the benefit of a “more longitudinal knowledge”^[48] of the appellant and was arguably better able to predict the appellant’s reactions.  He considered, however, that Dr Khoo’s letters contained limited information to substantiate his opinion.
87. [87]
    With respect to the factors that Dr Kovacevic considered had contributed to the compromise of the appellant’s ability to conduct his own defence, he opined that the primary impact came from the relapse of the appellant’s major depressive disorder.
88. [88]
    Dr Kovacevic considered that certain accommodations may eliminate or substantially reduce that compromise, such as shorter hearing days and more time for preparation.  Ultimately, he agreed with Dr Khoo that the appellant’s mental state had deteriorated, and that it was possible that his mental state may deteriorate further if he was required to continue with the trial.^[49]

(d) The trial judge’s reasons for dismissing the application

89. [89]
    In considering her Honour’s Reasons, the task of this Court is not confined to examining the reasons so as to ensure that the correct principles were applied.  Rather, it is for this Court to decide whether the refusal of the application to discharge the jury occasioned a miscarriage of justice.^[50]
90. [90]
    As to the issue of fitness for trial, her Honour did not consider that the evidence, and in particular Dr Kovacevic’s report, supported this as an issue to be tried by the jury.
91. [91]
    In relation to the discharge application, her Honour referred to the following matters:^[51]

    1. the appellant had suffered a major depressive disorder since 2012.  From mid-2022 there had been a sustained, systemic remission of this disorder;
    2. up until August 2023, the appellant had been represented by solicitors;
    3. the appellant made a decision to represent himself in July 2023, with the trial to commence on 16 October 2023;
    4. the appellant considered that he became eligible for Legal Aid a month before the trial commenced but did not apply for Legal Aid;
    5. on Day 6 of the trial, in the context of an earlier application for mistrial on the grounds of an online publication, the appellant had expressed serious doubts about his capacity to continue to represent himself and finish the trial;
    6. by Day 10 of the trial, 30 October 2023, the prospect of future representation appeared to be conditional upon a grant of Legal Aid.  Meehan remained under cross-examination, which, as at 6 November 2023, was 12 days ago;
    7. both psychiatrists had diagnosed a relapse of the appellant’s major depressive disorder;
    8. Dr Kovacevic’s assessment of the appellant’s ability to conduct his defence was noted as being compromised to a “moderate degree”;
    9. Dr Kovacevic’s opinion that the appellant’s performance and effectiveness would be impaired by 30 to 50 per cent of his full potential was based on only seeing the appellant on a single occasion;
    10. the appellant “continues to show the training, experience and knowledge of a long-standing practice in criminal law.  If operating at half capacity he remains at a high level”;^[52]
    11. the relevant question was the fairness of the trial;
    12. the time left with witnesses was controversial, with the Crown prosecutor suggesting three or four days and the appellant suggesting a few weeks.  Her Honour considered that a better estimate was that it could be “as much as five days, but that it [was] unlikely to be weeks”;
    13. while critical witnesses were yet to be called, her Honour considered most of them “unlikely to be controversial”;
    14. it was clear that the appellant had prepared for those witnesses;
    15. Her Honour accepted that the 12-day hiatus was “a relatively long time and weighs against the continuation of the trial”;^[53]
    16. this hiatus, however, had to be considered in the circumstances, and her Honour could not identify any real prejudice to the Defence;^[54]
    17. the delay that had ensued was due to the appellant’s predicament;
    18. Meehan’s evidence could be replayed to the jury and they could be given the transcript of Meehan’s evidence if the appellant agreed;
    19. the appellant had chosen to represent himself and was “in a better position than many to know there were pitfalls in self-representation”; and
    20. the appellant knew of his long-standing mental health vulnerability.
92. [92]
    Her Honour concluded as follows:

“I am not persuaded that the continuation of the trial would be unfair to Mr Bosscher.  On the other hand, an adjournment of the trial would not necessarily resolve his difficulties.  There is no guarantee of future representation.  The major risk to Mr Bosscher’s health seems to be the Prosecution itself.  The best way to address that, in my view, is to bring the matter to a resolution.  The Court will continue to make accommodation if and when it is needed.”

93. [93]
    In addition to these Reasons, her Honour made further observations on 24 May 2024, when the appellant was sentenced:

“As regards his application to discharge the jury for unfitness, there was a dramatic difference between Mr Bosscher’s presentation in the witness box for that application and, indeed, more generally during the application as against his presentation the next day when he resumed cross-examination of Mr Meehan, that was an energetic cross-examination.”^[55]

94. [94]
    It is difficult what to make of this observation.  One possible inference is that the appellant’s change in presentation suggested exaggeration of his symptomatology.  Such a suggestion, however, would be inconsistent with the unchallenged evidence of the prosecution’s own independent psychiatrist, Dr Kovacevic, that there was little to suggest that the appellant was deliberating feigning or exaggerating his symptomatology.  It is convenient at this stage to consider the respondent’s application to adduce evidence.

(e) The respondent’s application to adduce evidence

95. [95]
    In relation to Ground 4, by application filed 11 October 2024, the respondent sought to adduce further evidence.  This evidence consisted of the following audio recordings of the trial:

    1. 24 October 2023, in particular the first 20 minutes;
    2. 30 October 2023, 15 minutes; and
    3. 14 November 2023, in particular 20 minutes from 20:30.
96. [96]
    The evidence is sought to be adduced to counter the following written submission made by the appellant:^[56]

“It was unfair for the Appellant’s trial to continue.  Not only had 12 days elapsed since the jury had heard evidence but that first portion of the trial was where the Appellant had been operating at full cognitive capacity.  The balance of the evidence involved four 13A witnesses and complex financial, expert evidence where the Appellant’s functioning was significantly compromised.  The initial cross-examination of Mr Meehan and the Appellant’s more capable performance ‘had long receded from the jury’s focus as they went about their daily lives.’…”

97. [97]
    The respondent invited the Court to listen to the appellant’s conduct of his case before and after the discharge application.  The difficulty with this proposition is that there was unchallenged evidence from the Crown’s own forensic psychiatrist that the appellant was not exaggerating his symptomatology.  This Court is not in a position, by simply listening to parts of the audio of the trial, to assess for itself whether the appellant was or was not operating at reduced capacity.
98. [98]
    Paragraph 1(a)(i) to (iii) of the respondent’s application to adduce evidence filed 11 October 2024 is refused.^[57]

(f) Relevant events upon the continuation of the trial

99. [99]
    The trial resumed on 7 November 2023, which was Day 14.  The trial judge had sent an email to the Crown prosecutor and the appellant for the purposes of identifying what evidence either party wished to be replayed to the jury.  The Crown prosecutor identified a number of passages from the evidence-in-chief of Meehan.  The appellant had not seen the relevant email and required 15 minutes to consider the matter.  Ultimately, the appellant had no issue with the parts of Meehan’s evidence-in-chief identified by the Crown being replayed to the jury.  The appellant did not require any cross-examination to be replayed as he considered that he had to “put everything to him anyway”.^[58]
100. [100]
     The passages of Meehan’s evidence-in-chief that were replayed to the jury included the evidence concerning the incorporation of Bosscher Lawyers, the bankruptcy of Meehan and the appellant, the arrangement or agreement, the targeting of clients to pay cash and the operation of the trust account.  The jury were not reminded of the appellant’s cross-examination of Meehan in relation to Counts 2 to 9.  This included Meehan’s evidence that he had not informed Jones of receiving the notices from the CCC even though Jones was part of the alleged agreement or arrangement.  The evidence also included Meehan’s recollection that Ms Larcombe-Weate was instructed by him to create the relevant documents.  While the appellant revisited some of this cross-examination in relation to Counts 2 to 9 on Day 15 of the trial after the 12-day hiatus, it is apparent that this was formulaic and aimed at fulfilling the appellant’s obligations with respect to Browne v Dunn.  Further, the jury were not reminded of Meehan’s initial responses to the appellant’s cross-examination concerning Meehan’s termination.  The relevance of his previous answers, before the 12-day hiatus, gave context to Meehan ultimately accepting that he had previously stated on oath that he was terminated because he stole from Bosscher Lawyers.
101. [101]
     Although the appellant had informed the trial judge that he did not require any of the cross-examination of Meehan to be replayed to the jury, this was in circumstances where the unchallenged medical evidence was that the appellant had suffered a relapse of a major depressive disorder and was functioning at a reduced capacity.  In the result, after the 12-day delay, the jury were only reminded of parts of Meehan’s evidence-in-chief, including in relation to the agreement or arrangement.
102. [102]
     At no stage was any enquiry made of the jury as to which evidence they wished to have replayed after the 12-day delay.
103. [103]
     As discussed in relation to Ground 6, it cannot be said that any prejudice to the appellant which arose from the 12-day delay was alleviated by the trial judge fully dealing with Meehan’s evidence in the summing up.  As discussed below, Ground 6 alleges a miscarriage of justice by reason of the trial judge’s failure in the summing up to refer to evidence of a recording where Meehan apologised, upon his termination, for stealing from Bosscher Lawyers.
104. [104]
     When the trial resumed following the hiatus, prior to reminding the jury of parts of Meehan’s evidence-in-chief, her Honour repeated a number of the usual introductory directions.  These included directions in relation to the standard of proof, deciding the case on the whole of the evidence and the requirement that they return verdicts on each charge separately.^[59]
105. [105]
     In addition, her Honour reminded the jury that the fraud in Count 1 was particularised by the schedule of 81 transactions, but that the prosecution accepted that in light of the evidence of a number of clients, some of those transactions could not be proved.  Her Honour reminded the jury of the Crown’s case in relation to all counts in the following terms:^[60]

“Count 1 is – the fraud is particularised by that schedule of 81 transactions, you’ll recall that. That is an aid for you to follow the evidence relevant to a transaction. The 81 individual sums are alleged to be the amounts of the legal fees paid by clients and withheld from the company, Bosscher Lawyers. The prosecution alleges that some of that money was handed to Bosscher in person by the client, … but in most cases, the Crown’s allegation is that the money was handed to another employee and that, subsequently, it was kept off the books of Bosscher Law under an ongoing agreement that the defendant had with others at the company.

…

The other charge of falsifying the records requires proof that the – the Crown case in that respect is that Mr Bosscher directed Meehan to produce the particular invoice or costs agreement or to forge the particular document. And the Crown must prove that he did do the act … either by directing or in some other way procuring Meehan to produce that document, and that he knew it was false in a significant way or a material way, and that he did it [with an] intention to defraud.”

106. [106]
     Her Honour also made reference to Meehan being under cross-examination:^[61]

“Currently, Mr Bosscher’s former partner and colleague Meehan is under cross-examination. From memory, he is the only witness so far whose honesty has been challenged. There has been no – I don’t recall an attack upon those witnesses who were clients or relatives who paid fees for the firm.”

107. [107]
     When the trial resumed after the 12-day delay, there was a further 10 days of evidence before the Crown closed its case.  The appellant addressed the jury for part of Day 25, the whole of Day 26 and part of Day 27, which was approximately nine hours.

(g) Consideration of Ground 4

108. [108]
     Section 60(1) of the Jury Act provides:

“If a jury can not agree on a verdict, or the judge considers there are proper reasons for discharging the jury without giving a verdict, the judge may discharge the jury without giving a verdict.”

109. [109]
     Where an application is made pursuant to s 60, a trial judge has a discretion whether an order discharging the jury should be made.  The discretion is exercised where the judge considers there are proper reasons for discharging the jury.^[62]  For an appellate court, the relevant question is whether the trial judge’s discretion miscarried.  The appeal, however, is not against the failure to discharge the jury but against, the conviction.^[63]
110. [110]
     In Matthews v The Queen,^[64] the Victorian Court of Appeal endorsed the following summary of the relevant principles in relation to discharge applications:^[65]

3. “•
   The discretion to discharge the jury can only be exercised when there is a ‘high degree of need for such discharge’.

3. •
   The discretion to discharge the jury is to be exercised onlywhen that course is necessary to prevent a miscarriage of justice.

3. •
   Ordinarily, a trial judge will be in a better position than an appeal court to assess whether, having regard to the course and atmosphere of the trial, any prejudice may be dispelled by a clear warning to the jury.

3. •
   An appeal predicated upon a trial judge’s failure to discharge a jury is not an appeal against that failure, but an appeal against the conviction. The applicant bears an onus of demonstrating that the exercise of his Honour’s discretion was infected by error. …

3. •
   An appellate court will not lightly interfere with the discretion to refuse an application to discharge a jury.”

111. [111]
     The test relating to the determination of applications to discharge was set out in R v Boland,^[66] where it was held that an applicant must demonstrate that there is a “a high degree of need for such discharge” before any application is granted.
112. [112]
     In Crofts v The Queen,^[67] a majority of the High Court accepted that this approach was correct, and made the following additional observations:^[68]

“It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.”

113. [113]
     In relation to the nature of an appeal against a trial judge’s refusal of a discharge application, the High Court observed that an appellate court’s task:^[69]

“… is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for [whatever is said to have rendered the trial prejudicial], the conviction was inevitable? …”.

114. [114]
     The majority in Crofts found that, in the circumstances of that case, the trial judge’s failure to discharge the jury following the introduction of inadmissible evidence during the trial occasioned the risk of a miscarriage of justice.  The majority held that one of the factors to which the court below had failed to pay proper regard was that:

“…[I]t was specially difficult in this case for the judge to fashion a direction to the jury which would help them to eradicate from their minds the highly prejudicial statement of the complainant. It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account. The difficulty in this case was that the judge could not, and did not, refer specifically to the evidence which was so prejudicial because to do so would have reinforced the prejudice. In some cases it is possible for the judge to refer to the inadmissible evidence and to explain why it must be excluded. That course was not open in this case and for that reason was not followed.”

115. [115]
     In R v Peter,^[70] this Court emphasised that when determining whether a discharge application ought to have been made, it is necessary to pay regard to the particular facts of the case.  After setting out the relevant principles and considering the traditional test that there should only be a discharge of jury where there is a “high degree of need”,^[71] the Court found that this approach was likely to distract from the “necessary anterior questions” which turn upon the particular facts of each case.  President Sofronoff, Morrison and Philippides JJA relevantly observed:^[72]

“It would be a mistake to ask, as a test to determine an application for discharge, whether there is a ‘high degree of need for discharge’. The question cannot be answered unless, in the particular circumstances of a case, the necessary anterior questions are first answered. In the case of the admission of inadmissible evidence, the question will be whether there is such improper prejudice to the accused’s chances of acquittal and such risk that the trial will for that reason be unfair, that even a strong instruction to the jury would be incapable of restoring the balance. In the case of an incident like … [the one] in this case, the question will be whether the incident gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially. In cases involving other bases for an application to discharge a jury the questions will be different yet again. An affirmative answer to the relevant question in a particular case will then admit of an affirmative answer to the question whether there is a ‘high degree of need for discharge’ but, by the time that final question is posed and answered, it has become otiose. It represents no more than a succinct conclusion for the necessary preceding analysis.

The point is that the expression ‘high degree of need for discharge’ must not be permitted to be the substitute for the substantial issue raised by such an application. In particular, the words ‘high degree’ must not be regarded as imposing some kind of severe standard to which an application must conform. The question in each case will be, rather, one that is based upon the ultimate principle that a trial must be a fair trial. Fairness might be affected in an infinite variety of ways and it is the alleged unfairness in its particular factual context that must be addressed by a trial judge.”

116. [116]
     Ultimately, as was said by the Victorian Court of Appeal in Dragojlovic v R,^[73] “[t]he fundamental question is, and must always be, whether there has been a miscarriage of justice”.^[74]
117. [117]
     Examples in the authorities, involving appeals from refused applications to discharge a jury where there has been a prolonged adjournment during a criminal trial, are sparse.  It has, however, long been recognised that adjournments which result in the fragmentation of criminal proceedings are highly undesirable.
118. [118]
     In Reg v Hally,^[75] although not dispositive of the appeal in that case, Gibbs J emphasised in relation to adjournments that occur during the course of a trial that:

“It is however right to emphasise that as a general rule once a jury has been empanelled and the hearing of evidence has commenced it is most undesirable that there should be any prolonged adjournment of a criminal trial. Usually, if it appeared that the incapacity, although temporary, of the judge was likely to extend for ten days, it would be preferable to discharge the jury than to adjourn the trial.”

119. [119]
     In R v Miller,^[76] the Queensland Court of Appeal allowed an appeal where the trial was adjourned for six weeks after all the evidence had been presented, so that the Crown had time to produce further evidence to rebut the evidence which had been presented by the defence.  During the jury’s deliberations, the trial judge allowed the jury transcripts of all the evidence that had been presented.  Justice Keane, with whom Williams JA and Philippides J agreed, observed that:

3. “[45]
   … [T]he period of delay in the trial occasioned by the adjournment was without precedent in the experience of counsel who appeared on the appeal and, for that matter, in the experience of any member of this Court. One notes that in R v Hally, Gibbs J regarded an adjournment for a period of 10 days as so long as to give rise to a real concern as to the integrity of the process of trial by jury. In my respectful opinion, in this case, the dislocation of the trial process by an adjournment of six weeks, and the likelihood that the members of the jury would be affected, so far as their recollection and appreciation of the evidence is concerned, by the lapse of time and their intervening absorption in their own affairs, is such as to oblige this Court to hold that the adjournment was an irregularity in the trial process so serious as to warrant the conclusion that the appellant did not receive a fair trial.

3. [46]
   An essential feature of criminal trial by jury is that the jury should, so far as is practicable, focus its attention on the question as to the guilt of the accused and the evidence relating to that question without extraneous distractions from the time that the accused is put in charge of the jury until they are discharged from that important constitutional function. In cases where the accusations made against an accused person fall to be determined as a contest of word on word, the jury's decision will largely depend upon the impression made by the witnesses in giving their evidence. Where there has been a gap of six weeks between the completion of the evidence and the commencement of the jury's consideration of the evidence, some deterioration in the impression made on the jury by the witnesses is inevitable.

3. [47]
   Sometimes, in long trials, adjournments of several days may be inevitable, but, even in such cases, the essential character of the jury's role in listening to the evidence uninterrupted by outside concerns and weighing the evidence, in accordance with the trial judge's instructions, is preserved. …”

120. [120]
     Justice Williams, agreeing with Justice Keane, made the following additional observations:

“Orality is a fundamental feature of a criminal trial and most, if not all, criminal trials involve at least to some extent an issue as to credibility. Where such an issue is involved it is of critical importance that the jury be in a position to resolve the matter fairly as between prosecution and defence.”

121. [121]
     Justice Philippides agreed with Keane JA’s reasons, emphasising the importance of the fact that the jurors’ impression of the witnesses must remained uncompromised.  Her Honour observed:

“…[W]hile the issue of what is appropriate in terms of an adjournment so as to ensure a fair trial is a matter to be determined on the facts of each case, I agree that in the present case, the lengthy adjournment in the circumstances that appertained inevitably had the effect of altering the essential accusatory nature of a criminal trial, with its focus on oral evidence and the impression gained of the witnesses, to one where there was a real prospect that the transcript of evidence would be resorted to in substitution of the oral evidence and that the jury's impression of the witnesses would be obscured. This is of particular concern in a case such as the present one where credibility featured prominently and had the effect that the integrity of the criminal trial process was so disrupted that a fair trial could not be ensured.”

122. [122]
     As each of the judgments in Miller emphasised, the question of whether an adjournment has deprived an accused of their right to a fair trial must be determined according to the particular facts of each case.^[77]
123. [123]
     Conversely, in Dragojlovic v R,^[78] the Victorian Court of Appeal refused an appeal from a lengthy trial which had extended over 11 months and had been subject to various interruptions resulting from the unavailability of defence counsel (due to illness and other reasons), jurors becoming ill, and the trial judge needing to undergo surgery.  Of the 219 sitting days over which the trial extended, only 117 were said to be productive, and many of those were not full sitting days.  The case is, however, readily distinguishable from the present case, as the trial judge had invited defence counsel on multiple occasions to apply for a discharge of the jury.  Defence counsel had declined all of these invitations, believing it would be more favourable to the accused for the trial to proceed to verdict.
124. [124]
     After a detailed exposition of the existing caselaw across several jurisdictions in relation to delays in lengthy criminal trials, Redlich and Weinberg JJA and Bell AJA observed:

125. [125]
     In dismissing the appeal, their Honours observed:

126. [126]
     Their Honours ended their analysis with the following conclusory remarks:

127. [127]
     While the above comments in Dragojlovic are instructive insofar as they concern the undesirability of lengthy adjournments during criminal trials, the circumstances of the present case are very different.  Most importantly, in the present case, the appellant actively sought a discharge of the jury from the trial judge.  For that application alone, the appellant engaged senior legal counsel to act on his behalf.  The fact that counsel had continually refused to apply for a discharge was central to the decision in Dragojlovic, and that alone is a sufficient basis to permit a different result in the present case.
128. [128]
     Ground 4, proceeds on the basis that the trial judge’s failure to discharge the jury occasioned a miscarriage of justice which is the third limb of s 668E(1) of the Criminal Code.  As to whether a miscarriage of justice was occasioned, the relevant enquiry is whether what occurred had “the capacity for practical injustice” or was “capable of affecting the result of the trial”.^[79]  It is for the appellant to establish that the refusal to discharge the jury occasioned a miscarriage of justice.
129. [129]
     The passage cited above at [113] from the decision of the High Court in Crofts suggests that the appellate court must decide for itself whether, in the circumstances, the result of a refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.  This is the language of the proviso in s 668E(1A) of the Criminal Code.
130. [130]
     In the recent decision of the New South Wales Court of Criminal Appeal of Ilievski v R; Nolan v R (No 2),^[80] Dhanji J (with whom Lonergan J agreed) was of the view that Crofts cannot be applied in its terms.  Rather, according to his Honour, Crofts should be considered:^[81]

“… in light of subsequent authority on the proviso.  Indeed, this court has, in cases subsequent to Hamide v R, approached appeals based on a failure to discharge through the distinct steps of miscarriage and substantial miscarriage…”.

131. [131]
     Both Crofts and Ilievski involved a refusal to discharge a jury where inadmissible and highly prejudicial evidence was led.  In such cases, Dhanji J observed that the two-stage process of the applicant first establishing a miscarriage of justice and secondly whether the court could be satisfied that there was no substantial miscarriage of justice involved a number of considerations.  Relevantly for present purposes, his Honour observed that when considering whether there has been a miscarriage of justice based on a failure to discharge a jury, the views of the trial judge will be entitled to significant weight.  Further, while the appeal is from the conviction, this does not preclude an appeal based on the trial judge’s decision refusing to discharge the jury.^[82]  His Honour also observed that the criterion for the exercise of the discretion is the maintenance of the fairness of the trial, and the test is one of necessity.^[83]
132. [132]
     While Beech-Jones CJ at CL (as his Honour then was) dissented in the result, his Honour was willing to adopt the two-stage process; namely, whether the appellant had established a miscarriage of justice and, if so, whether the Crown had demonstrated that there had not been a substantial miscarriage of justice.^[84]
133. [133]
     In the present case, the respondent made no submissions as to the possible application of the proviso with respect to Ground 4.  As discussed below, the respondent expressly disavowed any reliance on the proviso in relation to Ground 6.  It may be readily understood why the respondent has not sought to rely on the proviso.  The appellant’s application for the jury to be discharged was, as identified at [64] above, brought on two bases.  First, the 12-day delay occurred while the Crown’s most significant witness was under cross-examination.  Meehan’s credibility was central to the Crown establishing Counts 2 to 9, and was of considerable significance in establishing the existence of the agreement or arrangement for Count 1.  The second basis concerned the appellant suffering a relapse of his major depressive disorder.  In the circumstances of the present case, such a failure to discharge the jury amounts to the type of error that would prevent this Court being able to apply the proviso.  As was observed by Kiefel CJ, Bell, Keane and Gordon JJ in Kalbasi v Western Australia:^[85]

“Contrary to the appellant’s submission, Weiss requires the appellate court to consider the nature and effect of the error in every case.  This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard.  These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury’s consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence…”.

134. [134]
     The effect of the trial judge’s refusal to discharge the jury was that the appellant, after a 12-day delay, was required to continue with his cross-examination of Meehan, having suffered a relapse of his major depressive disorder, and while functioning at a reduced capacity.  In circumstances where the jury’s assessment of Meehan’s credibility was a central issue, this Court should not speculate as to what impact the trial judge’s decision to continue the trial had on the jury’s assessment.
135. [135]
     For the following reasons, in the particular circumstances of the present case, the trial judge’s refusal to discharge the jury occasioned a miscarriage of justice.  The refusal had both “the capacity for practical injustice” and was “capable of affecting the result of the trial”.
136. [136]
     The continuation of the trial after a 12-day delay, which occurred while the Crown’s primary witness was under cross-examination and after the appellant had suffered a relapse of his major depressive disorder, resulted in significant prejudice and rendered the trial unfair.
137. [137]
     The trial judge’s discretion fell to be exercised in the context of unchallenged medical evidence.  Her Honour’s reference to the 12-day delay being due to “the appellant’s predicament”,^[86] should be understood as being a reference to the fact that the appellant had suffered from an acute relapse of his pre-existing major depressive disorder.  This diagnosis was not only based on the appellant’s self-reporting to Dr Khoo, Ms Ward and Dr Kovacevic, but was also consistent with their clinical assessments.  Dr Kovacevic, having been requested to consider issues of the appellant malingering or exaggerating his symptomatology, found that there was little to suggest any deliberate feigning or exaggeration.  The appellant had readily consented to subjecting himself to an independent medical evaluation.  Dr Kovacevic did not gain any impression in the course of his assessment that the appellant was deliberately underperforming or overstating his psychopathology.  Dr Kovacevic also noted that there was no evidence that the trial had progressed adversely for the appellant.  There was no suggestion, for example, that the appellant was seeking to “find [a] way out of his predicament by claiming a psychiatric impairment.”^[87]
138. [138]
     Although Dr Kovacevic’s evidence was that the appellant would be impaired by 30% to 50% of his full potential, her Honour observed that this assessment was “based on  only seeing the appellant on a single occasion”.^[88]  This assessment by Dr Kovacevic was made, however, in the context of his diagnosis that the appellant was suffering from a relapse of his major depressive order, from which he had suffered since 2012.  Dr Kovacevic noted the importance of the appellant having a heavy genetic loading for depression and his strong biological disposition.  Both Dr Kovacevic and Ms Ward considered that the appellant’s symptomatology was consistent with the way that a major depressive disorder presents itself in a clinical context.
139. [139]
     The trial judge discounted Dr Kovacevic’s assessment by suggesting that, even at 50%, the appellant’s capacity “remains at a high level”.^[89]
140. [140]
     None of her Honour’s reasons for refusing the application^[90] sufficiently addressed the effect of the 12-day delay occurring while Meehan was under cross-examination.  Her Honour did, however, refer to the appellant’s earlier indication that he had almost completed his cross-examination of Meehan, and to the fact that Meehan’s evidence could be replayed to the jury.  Her Honour accepted that the delay was “a relatively long time and [weighed] against the continuation of the trial”.^[91]  Her Honour, in the direction given to the jury after the delay (as outlined at [106] above), identified that Meehan was currently under cross-examination and that he was the only witness at that stage of the trial whose “honesty has been challenged”.  As already observed, following the delay, the jury were only reminded of those parts of Meehan’s evidence-in-chief as had been selected by the Crown prosecutor.
141. [141]
     Importantly, as observed at [100] above, the jury were not reminded of any part of the Defence case that had already emerged from the cross-examination of Meehan, neither in relation to Count 1 nor Counts 2 to 9.  The jury were not reminded of Meehan’s initial responses to the appellant’s cross-examination concerning Meehan’s termination.  Further, as observed at [100] above, the relevance of Meehan’s previous answers, before the delay, gave context to Meehan ultimately accepting that he had previously stated on oath that he was terminated because he stole from Bosscher Lawyers.  As submitted by Mr Holt KC for the appellant:

“… that sequence in terms of the assessment of credit, when you’re sitting as a fact finder, watching a witness be cross-examined, is really powerful when someone’s initial position is shown to be wrong, and then shown to be wrong again, and then shown to be wrong again, and a 12-day gap in that sense, has a huge forensic impact…”.^[92]

142. [142]
     The prejudice which arose from the delay could not be addressed by the trial judge reminding the jury of select parts of Meehan’s evidence-in-chief, whilst having no reference to significant aspects of the Defence case that had emerged from his cross-examination.
143. [143]
     In assessing whether the refusal to discharge the jury occasioned a miscarriage of justice, it is also necessary to have regard to the fact that the appellant addressed the jury for approximately nine hours.  As the appellant was unrepresented and did not adduce evidence, the Crown prosecutor had no right to a final address.^[93]  In the course of his final address, the appellant dealt extensively with Meehan’s evidence, including the large amounts of cash involved with clients Meehan had represented (such as Mr Luu),^[94] and Meehan’s admission to stealing made at the meeting where his employment was terminated.^[95]  The appellant also dealt in detail with the evidence in relation to Counts 2 to 9.^[96]
144. [144]
     While the appellant’s lengthy final address would no doubt have reminded the jury of salient aspects of Meehan’s evidence, it remained the task of the jury to assess Meehan’s credibility.  In this respect, the trial judge gave the usual direction as to how the jury may assess credit, in the following terms:^[97]

“A witness may be honest but have a faulty memory or be mistaken about an issue.  So you need both honesty and reliability.  And it is up to you to decide how much or how little of any witnesses evidence you will rely on.  You have had the opportunity now to hear what each witness has said, and you have seen how they presented when answering their questions.  It is for you to judge whether the witness told the truth, whether that witness correctly recalled the facts about which he or she gave evidence.  And that process, that assessment is the kind of thing you do all the time in your day to day lives.  There is no special skill involved.  You just need to use your commonsense, your experience with people.  That is your wisdom gained through the course of your lives.  And the real value of the jury is the wisdom and commonsense that all of you together have gained as independent members of the community.”

145. [145]
     The appellant’s final address, while lengthy and detailed, could not adequately address the prejudice arising from the delay which occurred while Meehan was under cross-examination.  There was a real chance that the jury would not have appreciated both the impact of Meehan’s admission to stealing from Bosscher Lawyers and the import of the sequence of questions prior to the delay by which that admission was finally elicited.
146. [146]
     When regard is had to the importance of Meehan’s evidence, the fact that the delay occurred in the course of his cross-examination, and the fact that the unchallenged medical evidence was that the appellant would be operating at a reduced capacity upon the trial’s resumption, there was a real chance that the jury’s ability to assess Meehan’s credibility may have been compromised.  As described by Keane JA in Miller, the present case involved a trial that was largely a “contest of word on word”.  The significance of the delay, at the point at which it occurred, was fundamentally prejudicial to the appellant and affected the fairness of his trial.
147. [147]
     Other matters referred to by her Honour in her Reasons included that the appellant had chosen to represent himself; he knew of his longstanding mental health vulnerability; and that there was no guarantee of future representation.  Her Honour further observed that the major risk to the appellant’s health “[seemed] to be the prosecution itself”.^[98]  The evidence was that at the time the appellant made the decision to represent himself, he believed that he would be able to conduct the trial to conclusion.  As outlined at [51] above, it was on Day 10 of the trial that the appellant informed the trial judge that he did not believe he was in a position to continue with the trial and to adequately defend or represent his interests.  As identified at [52] above, her Honour’s initial reaction to this was that “being tried for a serious offence was not likely to help anybody’s mental health”.  This initial observation is reflected in her Honour’s Reasons in the reference to the major risk to the appellant’s health being the prosecution itself.  These observations do not sit well with the unchallenged medical evidence that the appellant was not seeking to avoid the consequences of the trial but had rather suffered a relapse of his pre-existing major depressive disorder.  It was in this context that the appellant sought the discharge of the jury, so that he could obtain legal representation.  He had not previously applied for Legal Aid as he did not believe he would meet the “means test”.  By the time he would have been eligible for Legal Aid, which was one month prior to the commencement of the trial, he had already made the decision to represent himself.  This decision was made prior to there being any evidence of him suffering a relapse.  He was intending to apply for Legal Aid if the discharge application was granted but was uncertain whether he would be granted Legal Aid in the future.  He did, however, consider that he would meet both the “means” and “merits” tests for any future application for Legal Aid.
148. [148]
     While the appellant already had a pre-existing condition prior to suffering his relapse, his evidence was that he believed he was capable of representing himself.  The fact that he did in fact go on to suffer a relapse of a pre-existing mental health condition, should not adversely reflect on his earlier decision to represent himself.  The fact that the appellant made the decision to be self-represented, even if there was a possibility that he was eligible for Legal Aid, is beside the point.

Ground 6: There was a miscarriage of justice by reason of the trial judge’s failure in her summing up to refer to evidence of a recording where Meehan apologised, upon his termination, for stealing from Bosscher Lawyers

149. [149]
     Prior to the summing up, and in the absence of the jury, the appellant sought specific directions concerning aspects of the Defence case and, in particular, directions in relation to Meehan’s admission that he had been stealing from Bosscher Lawyers.  In this context, the following exchange occurred:^[99]

“DEFENDANT: … Mr Meehan made it very clear in his evidence here that – two things: (1) is he previously admitted saying sorry and that it constituted an admission to stealing. That was in his evidence.

HER HONOUR: I thought he said it didn’t.

DEFENDANT: No, no. He said here it didn’t.

HER HONOUR: Right.

DEFENDANT: But he accepted that he said previously - - -

HER HONOUR: Yes.

DEFENDANT: - - - on oath that it did, so - - -

…

HER HONOUR: I really – as I said to the prosecution, I really don’t understand that whole drama on stealing when on the Crown case, you were all stealing.

DEFENDANT: Yes. But that’s not the defence case.

HER HONOUR: I understand that. But it doesn’t – in terms of what I’m focusing on, in terms of … highlighting evidence, I don’t know that I need to descend into that.”

150. [150]
     The appellant submits that the trial judge’s failure to refer to this important aspect of the Defence case occasioned a miscarriage of justice.  The appellant submits that a confession to stealing large sums of money from Bosscher Lawyers, made to the appellant and Jones when confronted by them, was “profoundly inconsistent with the prosecution case.  It is inconceivable that he would have done so if the taking of such money was part of a joint plan with the very people he was apologising to.”^[100]
151. [151]
     In the written directions,^[101] her Honour gave the following two directions in relation to Meehan in the context of the Defence case:

• “The defendant contends that he is not guilty of fraud because … you could not be satisfied that the defendant was a party to any fraud proved against Meehan, because you could not be satisfied that Meehan acted in prosecution of the common unlawful purpose, or that his fraud was a probable consequence of the common unlawful purpose.”
• “The defendant … submits that where money was collected by Meehan, you could not exclude a reasonable possibility that Meehan kept the lot, and his retention of the whole amount would not be a probable consequence of an agreement to share cash.”

152. [152]
     The appellant submits that there needed to be real engagement with the significance of this aspect of the evidence, and that directions should have been given as to how the jury could use it.  This is particularly so, according to the appellant, given that her Honour specifically drew the jury’s attention to aspects of Meehan’s evidence but did not mention the crucial issue of the confession to stealing to the appellant and Jones on the day that his employment was terminated.  This error was exacerbated by her Honour’s lengthy reference immediately following to “a body of evidence capable of supporting Meehan’s evidence in a material way.”^[102]
153. [153]
     The relevant directions given by the trial judge in relation to Meehan were as follows:^[103]

3. (a)
   “Meehan is in a different category, because Meehan is alleged to be a party to a common unlawful purpose with the defendant. Transactions - you remember - you heard evidence of perhaps a couple of payments being made directly into Meehan’s bank accounts, so a direct transfer by the client. Those payments have been removed from the transactions that the Prosecution rely upon. You could not convict in respect of those occasions where the client deposited the money into one of the accounts selected by Meehan. Meehan’s evidence was that on other occasions - was that on some occasions he kept, or may have kept, a whole cash payment for himself, or at least part of that cash payment, before handing over the rest to be split. So in some cases, he said he was not sure if he did hand any money over.

3. Such issues are relevant to consider when you are assessing whether the nature of the fraud actually committed by Meehan was a probable consequence of the unlawful purpose he shared with the defendant. Whether it was a probable consequence will depend upon the details agreed upon, as well as what Meehan did, but upon the details agreed upon. Take into account - the evidence of Jones that that the agreement was only for small amounts. Meehan’s evidence was that the payments selected were at the discretion of the solicitor.”

3. (b)
   “Some of the witnesses made a statement and pleaded guilty to criminal offending, undertaking to give truthful evidence in the matter in accordance with their statements. Those witnesses were Jones, Meehan, Strofield and Luu. Jones, Meehan and Strofield, the three solicitors, pleaded guilty to offences of dishonesty over a period of time. You might think that a person who has been involved in sustained dishonesty is likely to be a person of questionable character. The evidence of such a person may be unreliable and untrustworthy.”^[104]

3. (c)
   “Now, in relation to Meehan, you know that Meehan was sacked.  A month later he approached the CCC and made the first statement. That was on the 14^th of September 2016. He asked for an indemnity, but was refused. At that time, the admissions he made, and the statement he gave, could not be used against him. Shortly after the indemnity was refused, Meehan returned to the CCC to make a statement that could be used against him and he offered to testify against others. He pleaded guilty to fraud in 2017. He was sentenced to five and a-half years, with 18 months in custody before being eligible for release on parole. At that time, the Judge told him but for the cooperation, his sentence would have been eight and a-half years, with three years before parole.

3. You must take into account that Meehan has accepted he engaged in dishonesty - serious dishonesty - at the company over a period of years. He admitted telling lies out of Court. He said he lied to his wife and the office about his affair. He admitted he lied to his wife about the reason he was given by [Bosscher Lawyers] for his sacking. He admitted that he undertook to tell the CCC everything but left out the involvement of his wife, whatever that was. He said about that that he wanted his children to still have one parent out of jail. In the trial, Meehan swore that Larcombe-Weate, who is now his second wife, was not involved in the falsified documents, whereas she has testified that she was. A large amount of cash went through Meehan’s bank accounts. In two instances, he had the client transfer money directly into his accounts and the Prosecution no longer relies on those transactions. There were specific instances where Meehan initially recalled receiving cash and splitting it, when the records then showed that the client had actually transferred that money to his account or, in the case of Hannah Hu, recalled paid in cash - when it was a cheque.

3. There is a body of evidence capable of supporting Meehan’s evidence in a material way. It is a matter for you as to whether you accept that evidence. If you do accept it, it is a matter for you whether you think it does support Meehan’s evidence.

3. Evidence that is capable of supporting Meehan, includes Jones’ evidence that there was an arrangement between the defendant, Meehan and Jones to take cash paid by some of their clients and keep it out of the company bank accounts. You may consider the evidence that consistently for transactions where a payment was not banked, no record of the payment was found by the financial analysts in MYOB or any other records of the company. The absence of any located record of the payment in the accounts of the company is true for the clients of Jones, the defendant and Bosscher, which - it is a matter for you, but which you might think could support Meehan’s claim that they all agreed … to keep the money withheld off the books.”^[105]

154. [154]
     In none of these passages did the trial judge address the significance of Meehan admitting to his alleged co-conspirators, the appellant and Jones, that he had been stealing from Bosscher Lawyers.  The significance of the evidence was not the mere fact that Meehan admitted to stealing, but rather the fact that the admission was made to the appellant and Jones, who Meehan alleged were the other participants in the agreement or arrangement.  Meehan’s employment having been terminated on 16 August 2016, the appellant, on 17 August 2016, informed the Queensland Law Society that Meehan’s employment had been terminated for cause.  Further, on the same day, Meehan surrendered his practising certificate to the Queensland Law Society and subsequently attended an interview with the Queensland Law Society on 13 September 2016.^[106]
155. [155]
     The appellant’s submission is that the effect of her Honour’s failure, was not a mere failure to refer to relevant evidence but rather a failure to properly put the Defence case.  While it must be accepted that the appellant dealt extensively with this aspect of the Defence case in his final address, it was not the subject of any direction by the trial judge.  The appellant further asserts that it was critical that the trial judge’s summary of Meehan’s evidence highlighted the aspect of the evidence most damaging to his credibility.  The failure to do so was an irregularity amounting to a miscarriage of justice.^[107]
156. [156]
     The respondent submits that no miscarriage of justice arose because the body of evidence concerning Meehan’s termination was “deficient in many respects”.^[108]  The respondent refers to the fact that although reference was made to a recording of the meeting, the appellant did not seek to tender the recording or have it played to the jury.  This submission, however, should be considered in the context that, at trial, the Crown was unwilling to tender evidence of the recording.  If the appellant had sought to tender the recording and have it played to the jury, this would have altered the right of the Crown prosecutor to make a final address.^[109]
157. [157]
     In the relevant exchange,^[110] the Crown prosecutor acknowledged that the appellant wished to use the recording in his cross-examination of Meehan.  The length of the recording was six minutes and 43 seconds.  The Crown prosecutor identified a number of issues in relation to the recording, including who was going to tender it.  The appellant explained the significance of the recording, in that it contained an apology which could be construed as an admission to stealing.  The Crown prosecutor’s objection to the use of the recording was that the first five minutes and 13 seconds consisted of a monologue by the appellant “making accusations and telling [Meehan] that he is caught dead to rights, and he has no chance and his time with the firm has ended … [s]o there’s [therefore] no link between the apology and any specific allegation.”^[111]  Another issue the Crown prosecutor had with the recording was some uncertainty as to what Meehan was actually apologising for.  As to the issue regarding who was going to tender the recording, the Crown prosecutor referred to it as never having being part of the prosecution brief, which “has implications for Mr Bosscher”.^[112]  The appellant stated that he was taken by surprise as the Crown would normally tender such material.  Given the consequences for the appellant, it may be readily understood why he did not seek to tender the recording and have it played to the jury.
158. [158]
     According to the respondent, the precise wording of the “so called apology” was never put to Meehan, even though the appellant purported to have a recording of it.^[113]  This is not entirely accurate, as the appellant suggested to Meehan that he said the words “I’m really sorry”.^[114]
159. [159]
     The respondent submits that the trial judge appreciated the relative unimportance of this evidence and asserts that Meehan’s admission to stealing was insignificant in the context of him having admitted to significant dishonesty.^[115]  This submission, however, fails to draw any distinction between Meehan being dismissed for stealing from Bosscher Lawyers as opposed to Meehan stealing in the context of the agreement or arrangement.
160. [160]
     As the Court is of the view that the trial judge’s failure to discharge the jury occasioned a miscarriage of justice, it is unnecessary to reach a conclusion as to whether, in the circumstances of Ground 6, a miscarriage of justice occurred.  The above consideration of Ground 6 does, however, reinforce the prejudice and unfairness arising from the 12-day delay while Meehan was under cross-examination.  Her Honour’s failure to refer to the evidence of the recording and its relevance to the Defence case, both in regard to Meehan’s admission to stealing from Bosscher Lawyers and his credibility more generally, resulted in the prejudice arising from the delay not being sufficiently addressed by the trial judge.

Disposition

161. [161]
     The following orders should be made:

1. Paragraph 1(a)(i) to (iii) of the respondent’s application to adduce evidence filed 11 October 2024 is refused.
2. Appeal allowed.
3. The convictions for Counts 1 to 9 are set aside.
4. A new trial is ordered on all counts.