DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   The defendant has been charged with one count of fraud as an employee to a value in excess of $30,000 and one further count of fraud as an employee. The offences are both said to have occurred between September 2010 and 30 June 2011. The first is said to have involved her forging and uttering a number of cheques from the account of an elderly woman, Ms Swan. The second involved her allegedly forging withdrawal slips relating to another account of Ms Swan.

3. [3]
   The defendant has applied pursuant to s. 590AA of the Criminal Code to exclude from evidence at trial:

1. (i)
   The opinion of Daniel Clemesha as to the identity of the writer of disputed handwriting and signatures on a number of cheques and withdrawal forms on the defendant’s former employer’s cheque and savings account with the Commonwealth Bank of Australia.

2. (ii)
   Evidence of prior convictions of fraud, three charges of forgery and three of uttering of which the defendant was convicted on her own plea of guilty in the Magistrates Court on 19 January 2012.

Background

4. [4]
   The defendant had, from about 2007 or 2008, known of her former employer, Mary Swan. At that time the defendant had commenced caring for Ms Swan’s aunt, Palmerin Clemesha. Mrs Clemesha had two children – Daniel Clemesha and Honora Seccull. Ms Swan was born in 1931, Ms Seccull in 1934 and Mr Clemesha in 1947. The defendant cared for Mrs Clemesha until her death in 2009. Subsequently she cared for Mr Clemesha’s mother-in-law and then for Ms Swan who was herself ill in 2010 and who eventually died on 10 April 2012.

5. [5]
   Although Ms Swan was the cousin of Ms Seccull and Mr Clemesha she was very close to them. Her own mother had died when she was a child and from a time well before Mr Clemesha’s birth in 1947 she lived with Mrs Clemesha and her family. Mr Clemesha says he regarded her as an older sister rather than a cousin.

6. [6]
   They were an educated family and Mr Clemesha became very familiar with Ms Swan’s handwriting. Throughout the course of his life he read letters, cards, instruction lists and recipes in Ms Swan’s handwriting. He also saw university assignments she had written. Ms Swan was a dentist, indeed a specialist orthodontist. While she spent some years overseas in the mid 1970s training, she returned to Australia and recommenced living with Mrs Clemesha. She continued to reside there until January 2011 having in fact inherited the house from her aunt. It was thus her family home for all of her life and for most of it, apart from the period when she was overseas studying and a short period when she worked in North Queensland for the flying dentist, she lived with Mrs Clemesha. At the time Ms Swan returned from overseas Mr Clemesha was married. He lived next door to his mother and Ms Swan for a short period. After he moved he and his family maintained close contact – generally at least weekly – with his mother and Ms Swan. She continued to write documents that he saw from time to time – Christmas cards, birthday cards, shopping lists, cheques and other documents. He remained familiar with her handwriting throughout all of her life.

7. [7]
   When Ms Swan’s health declined each of Mr Clemesha, Ms Seccull and the defendant were engaged in her care and with the administration of her affairs to varying extents. The defendant was her regular carer and was employed to assist her with day-to-day activities. It seems she was paid generally by cheque drawn on Ms Swan’s cheque account. Mr Clemesha and Ms Seccull were given Power of Attorney over Ms Swan’s affairs by a Power of Attorney executed on 11 March 2011. An earlier similar document had been executed in mid 2010 but had not been witnessed. Mr Clemesha said he was present when Ms Swan executed both of those documents. In addition, over the last years of his life he saw her signature on a number of cheques that she had written, some of which she signed in blank for Mr Clemesha to fill out the details.

8. [8]
   Mr Clemesha said that Ms Swan, although ill, was generally competent to conduct her own affairs except for a short period – perhaps a number of weeks – in January or February 2011 (prior to the execution of the Power of Attorney on 11 March). She was ill and had been admitted to the Prince Charles Hospital with a bowel obstruction. From mid 2010 Mr Clemesha and Ms Seccull assisted Ms Swan writing out cheques for her to sign and on occasions having her, as I have said, execute blank cheques. It is possible that Ms Swan also had the defendant assist her with similar matters but the defendant did not give evidence before me and I can therefore know nothing of any such arrangements. They remain, as Mr Clemesha conceded in evidence, a theoretical possibility.

9. [9]
   The family home which Ms Swan inherited from Mrs Clemesha was in need of significant repair. In May 2010 Mr Clemesha organised for Ms Swan to open a line of credit account with the Commonwealth Bank of Australia. Credit up to $220,000 was available. Money could be withdrawn by cheque or by personally attending the bank. In addition Ms Swan had a savings account and money could be withdrawn by means of signed withdrawal slips, and the production of a passbook.

10. [10]
    In April 2011 Mr Clemesha ascertained that $88,956.27 had been spent from that account since it had been opened. He says that review of the account shows that half was spent on legitimate house renovations but the balance was largely unaccounted for. In particular he says there were a large number of cheques made to ‘cash’ and one to the defendant in her own name which are, in his opinion, not in Ms Swan’s handwriting nor her signature. There are other circumstances which also aroused his suspicion. A number of cheques are said to have been drawn during time Ms Swan was in hospital, indeed in palliative care in February 2011 and had no need for significant sums of cash.

11. [11]
    Examination of Ms Swan’s bank books and records show:

1. (i)
   A number of stubs had been removed from the cheque book;

2. (ii)
   One butt had been left blank;

3. (iii)
   Cheques had been removed from the back of the cheque book with cheques earlier in sequence remained unused; and

4. (iv)
   The first cheque and butt from one book had been removed despite earlier books not having being fully used.

12. [12]
    Mr Clemesha says this is not consistent with Ms Swan’s usually ordered approach to matters.

13. [13]
    The defendant has also admitted her guilt to forging and uttering three cheques drawn on Ms Seccull’s account. Ms Seccull became aware in about June 2011 that three cheques were drawn on her account in May and June of that year that she had not issued. When Ms Seccull ascertained that these cheques had been drawn which she had not signed, she went to the Commonwealth Bank. She was shown copies of the three cheques. Her statement says she told the bank officer:

‘The signature on each cheque is a brilliant forged signature. However the rest of the writing on the three suspect cheques filling in the dates and amounts is nothing like mine.’

CCTV confirmed it was the defendant who had cashed these cheques. I conclude from this that the defendant, who, as I said, subsequently pleaded guilty to the offences involving those cheques, was familiar with Ms Seccull’s signature and very probably had a copy of it at the time she forged those documents. Otherwise Ms Seccull’s view that the signature was ‘a brilliant forged signature’ would be nonsensical.

14. [14]
    In the circumstances it is in my view beyond doubt that the defendant was familiar with the signature of both Ms Swan and Ms Seccull.

Signatures on cheques

15. [15]
    Mr Clemesha has carefully considered all of the cheques drawn on Ms Swan’s account and as I have said concluded that Ms Swan’s signature was often forged. It must however be remembered:

1. That his suspicions were aroused before giving consideration to the validity of the signature by the large number of cash withdrawals which caused him to doubt their authenticity.

2. That he was aware by about the end of June 2011 that the defendant had forged the three cheques on his sister’s account in May and June of 2011. Such a matter was irrefutably proven to his satisfaction by his knowledge that CCTV footage showed her cashing the three forged cheques drawn on his sister’s account.

16. [16]
    In making the assessment that the signature of Ms Swan was forged, Mr Clemsha must therefore, at least subconsciously, have been influenced by the irrefutable knowledge that the defendant had been guilty of fraud in respect of his sister’s bank account, and by his belief that unauthorised cheques had been drawn on Ms Swan’s account.

17. [17]
    In considering the reliability of Mr Clemesha’s evidence (as opposed to his veracity, which in my opinion is not in doubt) one must therefore be conscious that he has every reason to strongly believe the defendant was guilty of forgery in respect of Ms Swan’s account. One must be conscious of the effect of his subconsciousness in forming this belief when assessing the reliability of his opinion that the signatures on the cheque were not those of Ms Swan. There was, in my view, because of his belief of the defendant’s guilt a strong natural inclination for him to express the opinion he does.

18. [18]
    Because of his familiarity with Ms Swan’s writing and signature, I would be inclined to allow such opinion evidence to be given but for the possibility of change in Ms Swan’s writing and signature as a result of her developing ill health. This view is reinforced by consideration of the evidence of a handwriting expert, Mr Hettiarachchi.

19. [19]
    Although Ms Swan’s medical records were not put into evidence it is clear her strength and wellbeing declined over the period of the alleged offences, from September 2010 to 30 June 2011 and up to her death on 10 April 2012. She had given Mr Clemesha and Ms Siccull Power of Attorney over her affairs. That document was executed in March 2011 as had the earlier Power of Attorney executed in mid 2010. In about January 2011 when she was admitted to the intensive care unit at Prince Charles Hospital with a bowel obstruction she was not expected to live but did, in fact, recover somewhat without surgery.

20. [20]
    It is in such circumstances that the statement of Mr Hettiarachchi must be considered. He is a forensic document examiner with over 27 years experience in that field. He is an experienced expert witness with respect to handwriting and allegations of forgery. He was briefed by the Queensland Police Service to provide an opinion in this case and has provided two statements which were put before me.

21. [21]
    In the first he sets out details of 22 Commonwealth Bank cheques and non-original Commonwealth Bank withdrawal slips with respect to Ms Swan’s account. All but three of the cheques are the subject of the allegations of forgery. Although the other three are not the subject of such charges, that is not to say they are accepted as having been signed by Ms Swan. Rather it is possible that Mr Clemesha was not satisfied to the requisite degree of certainty that they were forged by the defendant, and so they were not the subject of a charge. In addition Mr Hettiarachchi was provided with the three cheques drawn on Ms Seccull’s account which were the subject of the defendant’s admitted fraud. He was also provided with a number of specimen documents, two documents, comprising five ruled sheets which contained specimen handwritings of the defendant, seven ruled sheets of paper executed by Ms Swan in circumstances that I will shortly recount and a red and black notebook used as a diary which contained some limited specimens of the handwriting of both Ms Swan and Ms Seccull.

22. [22]
    The seven ruled sheets of paper that I referred to were in fact completed by Ms Swan sometime after June 2011. She wrote them in the course of a single day. The contents thereof were dictated to her by Mr Clemesha and reflect the contents of a number of cheques. Essentially, he was asking her to rewrite the contents of a series of cheques so that comparisons could be made between her handwriting on the seven pages and that on the cheques the subject of allegations of fraud. Mr Hettiarachchi was asked to provide an opinion as to whether or not the writer of the specimen of Ms Swan’s handwriting and signatures was also the writer of the cheques and withdrawal slips including the signatures thereon.

23. [23]
    With respect to the cheques and withdrawal slips which are said to have been completed by the defendant, Mr Hettiarachchi says that the body writing of some of those documents displays a wide range of variations in writing speed and fluency. Importantly, with respect to the Swan specimen handwriting in the seven ruled sheets of paper that she wrote as Mr Clemesha dictated the contents, he says that they are mostly in uppercase disconnected letters with some lower case letters. He says they are written ‘with lack of speed and fluency’. He says the specimen in the diary (identified as Item 29a) is mostly in uppercase disconnected letters with some lowercase letters and numerals, freely and fluently written. By comparison he says the specimen handwriting in the diary (item 29b) in Ms Swan’s writing is mostly in lowercase connected letters with some uppercase letters and numerals which have been written with lack of speed and fluency. With respect to the Swan specimen handwriting, he concludes that:

‘They are not adequate to properly study the handwriting features of the specimen writer during the period of the questioned handwriting being written.’

The fact that some of the writing of Ms Swan’s was free and fluent and other writing lacked speed and fluency suggests that at that time of her life her writing style was variable.

24. [24]
    He says that the questioned handwriting in the cheques and withdrawal slips disclose some similarities and some dissimilarities in writing features when compared the specimen Swan handwriting. He says the observed dissimilarities could not be properly be evaluated due to the limitations of the available specimen handwriting. He concluded that he was unable to express an opinion as to whether or not the writer of the specimen handwriting (that is, Swan) was the writer of the questioned handwriting in the bank cheques and withdrawal slips.

25. [25]
    With respect to signature examination, he said that the Swan signatures in the cheques and withdrawal slips were in both uppercase and lowercase letters in connected and disconnected styles. He says that some letters of those signatures had been written with attention to the writing process and some written with reasonable fluency. He says the documents which Swan wrote as Mr Clemesha dictated, contained specimen Swan signatures. He says those signatures had been written on one occasion with lack of speed and fluency and says that ‘the available specimen signatures are not adequate to properly study the handwriting features of the specimen writer during the period of the questioned signatures being written’.

26. [26]
    He says that the questioned Swan signatures in the cheques and withdrawal slips display some similarities and some dissimilarities in handwriting features when compared to the specimen Swan signatures which had been written by her as Mr Clemesha dictated. He says that the observed dissimilarities could not be properly evaluated due to limitations of the available specimen signatures. He therefore concluded that he was unable to express an opinion as to whether or not the writer of the specimen Swan signatures that he had been given was the writer of the Swan signatures in the cheques and withdrawal slips.

27. [27]
    Later he was provided with further documentation, a black 2011 diary. In that diary notations on particular dates, namely 15, 17, 18, 19 and 21 January 2011, were said to be specimen handwriting of Ms Swan for the purposes of comparison. The diary also contained handwriting over the same period between 16 and 31 January 2011 in the handwriting of the defendant. In respect of the consideration of all of the Swan handwriting used as a specimen, namely the diary and the earlier documents that I have referred to, he concluded:

‘The available specimen Swan handwriting… displays a wide range of variation in speed and fluency, indicating deterioration or fluctuation of writing quality. They are not adequate to properly study as to when the variation in writing quality occurred. Furthermore, they are not fully representative materials for full comparison with the questioned handwriting. When compared to the specimen Swan handwriting, the questioned handwriting (the cheques and withdrawal slips) display some similarities and some dissimilarities in handwriting features wherever the comparable materials are available. The observed dissimilarities could not be properly evaluated as differences or variations, additional features, etc due to the limitations of the available specimen handwriting’.

28. [28]
    He concluded therefore that he was unable to express an opinion as to whether or not the writer of the specimen handwriting was the writer of the cheques and withdrawal slips.

29. [29]
    In my view these opinions, expressed by a forensic document examiner, must cast some doubt upon the reliability of Mr Clemesha’s own opinion that the signatures on the cheques and withdrawal slips are not that of Ms Swan. In particular, Mr Hettiarachchi’s observation that the specimen handwriting of Ms Swan displays a wide range of variation in speed and fluency indicating deterioration or fluctuation of writing qualities causes me to doubt the reliability of Mr Clemesha’s opinion. I reiterate that I am not concerned, when expressing his opinion, that his view is honestly held. My concern is that in circumstances in which he understandably and genuinely believes the defendant is guilty (as I previously explained), that he might be subconsciously too inclined to come to a conclusion that the signatures are not those of Ms Swan.

30. [30]
    In my view, in circumstances where an expert forensic document examiner is unable to draw such conclusions, it is difficult to think that much weight should be attached to the opinion of a non-expert, even one familiar with Ms Swan’s customary handwriting and signature. This is, as I have said, particularly so because it appears from Mr Hettiarachchi’s opinion that there was deterioration in Ms Swan’s handwriting and signature at that time, no doubt due to her ill health. In my opinion it is possible, perhaps even likely, that Mr Clemesha has not given that factor due weight.

31. [31]
    It is of course the usual rule that evidence of laypeople as to opinions cannot be given in court. Such a rule is not generally applied with respect to handwriting issues. (See the footnotes on s 59 of the Evidence Act in ‘Evidence Law in Queensland’ by J.R.S. Forbes.)

32. [32]
    Section 59 of the Evidence Act provides:

(1) Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses and such writings and the evidence of witnesses respecting the same may be submitted as evidence of the genuineness or otherwise of the writing in dispute.

(2) A court may compare a disputed writing with any writing that is genuine and act upon its own conclusions in relation thereto.

33. [33]
    Non-expert evidence identifying handwriting is said in Mr Forbes’ book to be one of the more remarkable forms of ‘lay opinion evidence’.^[1]  It is said that the opinion of a lay person is admissible provided the witness has some significant experience of the alleged author’s writing. In circumstances where that experience is slight, the evidence can be excluded (Duke v Duke (1975) 12 SASR 106).

34. [34]
    In this case, as I have said, my concern is not that Mr Clemesha is unfamiliar with Ms Swan’s writing and signature, but that he is perhaps not sufficiently familiar with her writing at a time it was deteriorating due to her ill health and that the reliability of his identification of signatures as not hers is subconsciously affected by his knowledge that the defendant was guilty of fraud in respect of his sister and his belief that she is guilty of fraud in respect of Ms Swan.

35. [35]
    In such circumstances, even if such evidence was admissible, it would be my view that to admit it would be inherently dangerous and in the exercise of my discretion I would exclude the evidence to ensure a fair trial.

36. [36]
    I do so in circumstances where I have been told that in any case Mr Hettiarachchi is to give evidence, presumably in line with what I have indicated he has said in his statements. In such circumstances, in my view the opinion of a lay person – perhaps influenced by the matters I have referred to – should not be given much weight, and, because of the risk the jury might be unduly influenced by his opinion, to allow it to be given would be unfair.

37. [37]
    In the circumstances I exclude the evidence of the witness Mr Clemesha as to his opinion with respect to the signatures on the respective cheques and withdrawal slips.

Similar fact evidence

38. [38]
    There remains the question of whether or not I should allow evidence of the defendant’s convictions for fraud, forgery and uttering with respect to Ms Seccull’s cheque account to be admitted.

39. [39]
    The admission of such evidence is unusual.

40. [40]
    The admissibility of similar fact evidence has been considered by the High Court in Pfennig v R (1995) 182 CLR 461 and Phillips v R (2006) 225 CLR 303.

41. [41]
    In the latter case the court said in a unanimous judgment that:

‘Since at least 1995 it has generally been thought that the admissibility of similar fact evidence depends on the test stated in Pfennig v R:  it is inadmissible unless, viewed in the context of the prosecution case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused.’

42. [42]
    At pp 320 and 321 of that case the court said:

‘[53] Reliance was placed on the following statement in Pfennig v R:

“[S]triking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics”.’

‘[54] Despite that passage, and despite the reformulation of the tests stated in Pfennig v R in R v O'Keefe, neither of those cases departed from a fundamental aspect of the requirements for admissibility: the need for similar fact evidence to possess some particular probative quality. The “admission of similar fact evidence... is exceptional and requires a strong degree of probative force”. It must have “a really material bearing on the issues to be decided”. It is only admissible where its probative force “clearly transcends its merely prejudicial effect”.’

43. [43]
    In R v Gregory [2011] QCA 86 Muir JA, with whom White JA and Martin J agreed, said at [23]:

‘The principles to be applied in determining the admissibility of similar fact evidence of the nature of that under consideration were summarised in the reasons in R v Brown as follows:

“[18] Of course, the existence of ‘striking similarities’, ‘unusual features’ or an ‘underlying unity’, ‘system’ or ‘pattern’ is not an essential pre-requisite to the admissibility of such similar fact evidence. But evidence of the type under consideration is admissible only if there is no reasonable view of such evidence, considered together with the other relevant evidence in the case which is consistent with the innocence of the accused.”

“[19] The correct approach to the determination of the admissibility of such evidence was stated by Hayne J in HML v The Queen quoting from the reasons in Phillips v The Queen:

‘In deciding the question of admissibility presented by Pfennig, the trial judge is not called on to decide whether the evidence which the prosecution intends to adduce does or does not establish the accused’s guilt.

...

the test [in Pfennig] is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v R does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.” [Emphasis added.] (Citations omitted).’

44. [44]
    In my view, the circumstances of the admitted offending and the subject offending are such that there is no reasonable view of the admitted offending, consistent with the relevant evidence in the subject matter, consistent with the innocence of the defendant with regard to that matter. In my view, the features of the similar fact evidence and subject evidence listed below indicate that the defendant was engaged in both cases in such a similar method of defrauding Ms Swan and Ms Seccull that the similar fact evidence ought be admitted. In my view the facts are such that there could not be said to be a reasonable view of the facts consistent with the innocence of the accused.

45. [45]
    Counsel for the defendant submitted that there was such a view of the similar fact evidence consistent with the innocence of the defendant, namely that Ms Swan had signed the cheques and given them to the defendant to cash, after the defendant may have herself signed the cheques. In my view that is no more than a theoretical possibility, and does not amount to a reasonable view of the similar fact evidence. I note also that one of the cheque butts indicates payment of a sum in excess of $2,000 to Guide Dogs Queensland but there is evidence that no such payment was ever made to that organisation. Furthermore, the cheque itself was made payable to cash. Defence counsel said it is possible that the cheque was cashed and the money given directly to Guide Dogs. In the absence of any receipt or other evidence of such payment such a proposition is so inherently unlikely as not to amount to a possible view of the evidence.

46. [46]
    In my view the following features are relevant to my determination that the evidence of the earlier convictions should be admitted:

1. The admitted fraud and the alleged fraud both involved allegations of dishonestly taking, forging and uttering cheque (and also withdrawal slips in respect of the second subject charge). The use of cheques was a declining feature of everyday life in the 2010/11 period and that each case involved cheques is itself somewhat unusual.

2. The offences were committed in the same general period of time. Some of the allegedly fraudulent cheques are said to have been completed in the same months as the admitted forged cheques were signed and presented for payment.

3. Each of the women whose accounts were said to have been accessed were elderly and vulnerable women who were well known to the defendant, and to one another.

4. The defendant was familiar with the handwriting and signatures of both women. It is not a case where she had come across the chequebook of an unknown woman, and forged a signature based on it, indeed if any familiarity with the account holder’s signature.

5. In each case there are reasonably close proximities of the actual signatures of Ms Swan and Ms Seccull to the allegedly fraudulent signatures.

6. Although the defendant worked for Ms Swan, but was not an employee of Ms Seccull, the work arrangement with Ms Swan was a relatively informal one involving care of Ms Swan in her own home. It could not be seen as a formal work environment where, for example, there might be formal procedures designed to overcome the possibility of fraud or other deception. Both can generally be seen as arising out of a domestic relationship.

7. Each involved an unsophisticated system of fraud which must inevitably have become known, as it did to Ms Seccull and, but for Ms Swan’s untimely death, would also have been inevitably detected by her. In each case, the only prospect of escaping detection lay in the death or mental disorder of the account holder.

47. [47]
    In those circumstances it is my view that the demands of the test referred to Pfennig v R (supra) and Phillips v R (supra) have been met.

48. [48]
    I hereby dismiss the application which seeks to exclude evidence of the defendant’s prior convictions.

Orders

49. [49]
    The orders of the court are:

1. That the opinion of Daniel Clemesha as to the identity of the writer of disputed handwriting and signatures on a number of cheques and withdrawal slips of the defendant’s former employer’s cheque and savings accounts with the Commonwealth Bank of Australia be excluded from evidence.

2. That the application to exclude evidence of the defendant’s prior convictions of fraud, three counts of forgery and three counts of uttering of which the defendant was convicted on her own pleas of guilty in the Magistrates Court on 19 January 2012 be dismissed.