DISTRICT COURT OF QUEENSLAND

1. [1]
   There is presently an indictment before the Court charging the defendant Jean Anne Illingworth with a total of 10 offences. Counts 1 to 5 on the indictment allege the obtaining a financial advantage by deception contrary to s 134 of the Commonwealth Criminal Code, count 6 is a charge of fraud under s 408C of the Queensland Criminal Code, counts 7 and 8 are charges of forgery and counts 9 and 10 are charges of attempting to pervert the course of justice.

2. [2]
   By way of pre-trial argument pursuant to s 590AA of the Criminal Code the defendant now seeks orders for:

1. (a)
   a permanent stay on counts 9 and 10 on the indictment;

2. (b)
   further and better particulars on each count of the indictment;

3. (c)
   to quash count 6 on the indictment;

4. (d)
   in the alternative to quashing count 6 that it be amended pursuant to s 596(2) of the Criminal Code;

5. (e)
   separate trials upon counts 1-5, 6, 7-8 and 9-10;

6. (f)
   an exclusion of certain evidence disclosed.

3. [3]
   The charges against the defendant all relate to her employment as school principal at Djarragun College near Cairns. The College was operated by Djarragun College Ltd and, as I understand it, there were two school sites involved – Djarragun College and Wangetti, which was essentially a boarding facility. The College was a non-profit making body, operated for indigenous students and funded by both the Commonwealth and State governments. Funding was determined according to claims made to the relevant government agency and was calculated according to the number of students claimed as having attended during a relevant period. In the case of Commonwealth funding, the claim, or census as it is termed, was submitted in August of each year and in the case of State funding, in February of each year.

4. [4]
   The allegation against the defendant in counts 1 to 6 is essentially a simple one. It is that, from the Commonwealth August Census Submission in 2008, up until the State Census in February 2011, she deliberately overstated the number of eligible students and thereby obtained funding to which the school was not entitled. The forgery charges in counts 7 and 8 relate to alleged attempts by the defendant to create false attendance rolls in order to disguise her fraud. The first such attempt, as alleged in count 7, is said to have occurred after auditors first became involved in 2011. Count 8 relates to false rolls said to have been found on the defendant’s home computer and supplied by her to a new governing body to conceal her unlawful activities. The final two counts relate, in general terms, to the defendant having allegedly attempted to improperly influence the evidence of a material witness concerning the false attendance rolls.

5. [5]
   Against this general background I now turn to a consideration of the particular issues raised in this application:

Joinder

6. [6]
   It is contended for the defendant that the indictment should be severed to allow separate trials for counts 1-5, count 6, counts 7 and 8 and counts 9 and 10. The essence of the argument seems to be that the joinder of all counts is not proper in law and that further, evidence of the post offence conduct in counts 7 and 8 represents an attempt to embarrass the defendant in her defence.

7. [7]
   The joinder of charges here is founded in s 567(2) of the Criminal Code. In R v Navarolli [2009] QCA 49 the appellant was charged with an offence against the Bankruptcy Act 1966 (Cth) (Count 1) as well as offences under the Criminal Code of fraud and forgery (Counts 2, 3 and 4). It was argued on appeal that the joinder of Count 1 with the other charges gave rise to a miscarriage of justice. Referring to s 567(2),  Chesterman JA said:-

“[137]From this case (Phillips v The Queen (2006) 225 CLR 303) the appellant reasons that the only basis for a joinder of charge on the one indictment is that the evidence relevant to each charge is admissible as evidence supporting the others.

[138]This is not what the section says. It provides for three bases for joinder: charges founded on the same facts; charges which form part of a series of offences of the same or similar character; charges which constitute a series of offences committed in the prosecution of a single purpose.

[139]The appellant’s proposition was rejected in R v Kray [1970] 1 QB 125 in which Widgery LJ said (for the Court) (130-131):

‘… offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases. …  All that is necessary .. is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together.’

[140]There was a commonality of facts between counts 1, 3 and 4. It was a necessary part of the proof of counts 3 and 4 that the boat had been mortgaged to Prendale. That fact was necessary to prove that the appellant’s assertion to Mr Milostic that the boat was his, was unencumbered, was dishonest. The forgery of the letter was part of the misrepresentation and was given as corroboration for it. In order to prove the assignment of the boat to Prendale it was necessary to explain the transaction pursuant to which the boat was given as security. This involved explaining that the appellant had borrowed money. That transaction is the factual origin of counts 1, 3 and 4 so that those offences were ‘founded on the same facts’. Moreover it is apparent that all offences were committed by the appellant in order to obtain funds for his restaurant business which appears to have been chronically short of money. The four counts involved obtaining money by unlawful means to prop up the business. That is sufficient to establish the offences were a series in the prosecution of a single purpose.

[141]The question was discussed in R v Collins ex parte Attorney- General [1966] 1 Qd R 637 at 636-7 by McPherson JA and Lee J. Their Honours said:

‘It has long been accepted that the basic criterion for the joinder of counts … is the existence of some connection or nexus between them, each limb of a sub-section being illustrative of the circumstances giving rise to the nexus … . In defining in broad terms what connection is sufficient … examination of the cases demonstrates that an appropriately liberal reading be given to the text of the section, consistent with its underlying policy. That policy, it was stated in Kray, is to enable the joinder of charges which may be ‘properly and conveniently’ dealt with together … . It is obviously desirable both in the interests of the due and expedient administration of criminal justice and in the interests of finality of litigation in relation to the particular accused, that there be a single and final inquiry into matters which arise out of or which essentially involve common issues of law or fact. Any injustice which such a course has the potential to produce is adequately catered for by the discretion to sever provided for in s 597A. If nothing else, consistency in decision making would dictate that the one tribunal resolve such questions, little being gained from a fragmented approach. The simple means which the legislature has provided for giving effect to this policy is to allow the joinder of multiple counts … in an appropriate case ‘so that the whole of the facts can be adjudicated upon by one jury’:… . Indeed so extensively has this policy been recognised, that the courts have laid down the general rule that matters which can be joined without prejudice to an accused ought generally to be …’.

8. [8]
   There is in this case a clear commonality of facts. Counts 1 to 6 each allege the falsification of student numbers and they are clearly of a similar nature being distinguishable only because of the dates involved and because some claims relate to the Commonwealth funding entity and others to the State entity. The forgery charges allege conduct intended to conceal those frauds, and counts 9 and 10 allege conduct designed to excuse the defendant of any involvement in fraudulent activity – conduct which, if accepted by the jury, is clearly capable of showing a consciousness of guilt. All offences here have their core or source of origin in the fraudulent making of the funding claims. This may in itself be sufficient to constitute them as being “founded on the same facts” in the sense spoken of by Chesterman J in the passage from Navarolli set out above. See also R v Liddy (2002) SASR 19, paragraphs 121 to 125 per Mulligan J. In any event, just as in Navarolli, the charges here involve a series of offences committed in the prosecution of a single purpose.

9. [9]
   In R v Bradley [2013] QCA 163, the Court of Appeal upheld the joinder of charges of attempting to pervert the course of justice with the substantive charges against the provisions of the Drugs Misuse Act 1986 (Qld). De Jersey CJ, with whom Muir and Fraser JJA agreed said:

“[3]Under paragraph 567(2) of the Criminal Code, charges may be joined if they constitute ‘a series of offences committed in the prosecution of a single purpose.’

[4]The charges of attempting to pervert the course of justice involved, for count 3, an attempt to have Ms Main accept responsibility for drugs discovered by police at the appellant’s house on 4 December 2008 (being the drugs involved in count 2); and for count 7, an attempt to have Mr Janezic accept responsibility for drugs discovered at the appellant’s residence on 5 February 2009 (being the drugs involved in counts 4, 5 and 6). Count 12 concerns possession of the appellant’s weapon at an address where drugs, money and drug associated items were located, found in counts 9, 10 and 11.

[5]The joinder was justified because the alleged offences were committed in the prosecution of a single purpose, namely trafficking in dangerous drugs. It was open to inference that the attempts to pervert the course of justice were motivated by a wish on the part of the appellant to avoid detection, and the possession of the weapon by a perceived need for protection, both regular features of trafficking operations.”

10. [10]
    Even if counts 7 to 10 were not joined on this indictment, evidence of them would properly be admissible on the fraud charges – and vice versa – as evidence capable of showing an awareness or consciousness of guilt - the Crown allegation being that having been discovered engaging in fraudulent conduct, the defendant had created false documents in an attempt to cover up her activities and had then attempted to undermine the reason for creating those documents by interfering with a witness whom she had procured to create some of that documentation. If used in this way the evidence would no doubt require a careful direction by the trial judge in accordance with cases such as Edwards v R (1993) 178 CLR 193. However, in my view, the joinder here is a proper one and  given the level of factual interation involved I find no prejudice or embarrassment in the relevant sense, which should result in the order for separate trials pursuant to s 597A of the Code.

Count 6 – motion to quash

11. [11]
    Count 6 on the indictment represents, in effect, a so-called “rollup charge” in that it reflects claims made for State funding for the census periods 2008 to 2011. There is no legislative provision for the charges under the Commonwealth legislation to be similarly combined and for that reason, counts 1 to 5, relating as they do to claims for Commonwealth funding, are charged as individual offences.

12. [12]
    Count 6 is framed in accordance with s 568(3) of the Code, a provision considered by the Court of Appeal in R v Mill [2007] QCA 150. In that case, Keane JA, with whom de Jersey CJ and Lyons J agreed, said:-

“[68]… Now it is argued on the appellant’s behalf that count 1 is duplicitous in that two (or more) offences are charged in one count on the indictment. The appellant argues that count 1 was bad for duplicity in that it alleged defalcations involving both Mrs Suga and Suga Pty Ltd.

[69]When the trial commenced, the appellant was represented by Senior Counsel and this point was not argued. That is because even a passing familiarity with the Criminal Code would have revealed that there was nothing in the point.

[70]In general, as s 567(3) of the Criminal Code provides: ‘Where more than 1 offence is charged in the same indictment, each offence charged shall be set out in the indictment in a separate paragraph called a ‘count’ ...’ In cases of fraud, however, s 568(3) of the Criminal Code provides:

‘(3)In an indictment against a person for fraud the person may be charged and proceeded against on 1 charge even though –

1. (a)
   any number of specific frauds of the same type has been committed, whether or not each specific act of fraud can be identified; or

2. (b)
   the frauds have extended over any space of time; or

3. (c)
   property applied belongs to different persons, and has come into the possession or control of the accused person at different times and subject to different trusts, directions, conditions, or duties to account; or

4. (d)
   the property, benefit, detriment or inducement belongs to or is caused to different persons.’

[71]The appellant's argument in relation to ground 1 cannot be maintained in the light of s 568(3)(c) of the Criminal Code.”

13. [13]
    Senior counsel for the defendant accepts that s 568(3) allows the framing of count 6 in its present form but has placed some reliance on the comments of Thomas J and Williams J in R v Baynes [1989] 2 Qd R 431 at pages 436 and 438 respectively. In essence their Honours in that case urged caution as to the desirability of charging separate offences on an indictment when it was sought by the Crown to take advantage of s 568(6) of the Code. Baynes however was concerned with different offences committed by different offenders being charged in the one count. It concerned a factual situation quite unlike that in the present case and it does not deal with the express statutory authorisation for joinder contained in s 568(3).

14. [14]
    The offending encompassed in count 6 involves the same complainant, that is the State Government, and the same repeated methodology. Each incident involves the alleged obtaining of a monetary payment in excess of $30,000.

15. [15]
    The charge here is properly framed in a manner permitted by law. It occasions, in my view, no undue prejudice to the defendant and presents no difficulty that cannot be cured by appropriate direction from the trial judge as to the need for jury unanimity. I find no basis for the quashing of count 6 or for its further amendment.

The stay application in respect of counts 9 and 10

16. [16]
    It is argued for the defendant that I should now order that proceedings in respect of counts 9 and 10 should be permanently stayed. As indicated, these charges are related to an alleged attempt by the defendant to improperly influence the potential testimony of a material, and, as I understand it, indemnified, Crown witness. The particulars of those charges are as follows:-

“Count 9 This count covers all acts pertaining to the creation and delivery of the letter commencing “Dear John” delivered to Vimal Shankaran by Luitzen Kuipers on Thursday Island in anticipation of its use in criminal proceedings.

Count 10 This count pertains to the request of the witness Susan Mary Bailetti to provide a false account to claim authorship of the “Dear John” letter referred to in count 9, in anticipation of the use of such account in criminal proceedings.”

17. [17]
    Following the committal proceedings in this matter on 19 December 2013 the defendant pleaded guilty to an offence of breach of bail for which she was fined the sum of $500. The breach of bail was constituted by the defendant having, contrary to her bail conditions, made contact with Mr Shankaran by causing a letter to be delivered to him. It is common ground that that letter is the so-called “Dear John” letter referred to in the particulars. It is now submitted for the defendant that she has already been punished for the same act which gives rise to charges 9 and 10 and that the continued prosecution of her on those counts would be in contravention of s 16 of the Code and constitute an abuse of process.

18. [18]
    Section 16 was considered by the then Court of Criminal Appeal in R v Gordon ex parte Attorney-General [1975] Qd R 301 a case in which the driver of a motor vehicle was charged with an offence of dangerous driving causing grievous bodily harm. He had previously been dealt with in the Magistrates Court for an offence of driving whilst under the influence of liquor or a drug arising from the same incident and involving the same facts as the dangerous driving charge. In dealing with the dangerous driving charge, the Judge had ordered that the offender be convicted but held that, because of s 16, he could not be punished for the offence. In considering the application of s 16 in the circumstances of that case, Hanger CJ said at pages 306 to 307:

“Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omissions would constitute two different offences. It is to those cases that the section is directed … . If this construction of s 16 is right, then the section would have no application to the circumstances of the present case. The punishable act or omission which had already been dealt with by the Magistrate being in charge of a motor vehicle whilst under the influence of liquor or a drug – was not the punishable act or omission before his Honour – dangerous driving causing grievous bodily harm. His Honour therefore proceeded on a wrong footing in taking the course which he did.”

19. [19]
    The test of punishable act or omission articulated by Hanger CJ was adopted and applied most recently by the Court of Appeal in R v Dibble ex parte Attorney- General Queensland [2014] QCA 8.

20. [20]
    It is accepted that at the sentence proceeding in the Magistrates Court the following exchange occurred between the presiding Magistrate and counsel then representing the defendant:-

“Bench: So, yes. You’ve got instructions to enter pleas of guilty to the three of those.

Mr Kimmins: In relation to the three counts of breaching bail your Honour.

Bench: Now, I take it that’s on the basis of the breaches of bail being established by mere contact ---

Mr Kimmins: Yes, your Honour.

Bench: --- rather than any of the substance that then forms the basis ---

Mr Kimmins: That’s really covered by the other offences.”

21. [21]
    It is clear from the above that the punishable act for which the defendant was dealt with in the Magistrates Court was the act of “contact” with the witness contrary to the bail undertaking. As Mr Cowen for the Crown has submitted in these proceedings, the relevant punishable act for the purposes of the indictable offences relates to the creation and intended use of the letter to persuade a witness to alter his account or, in the case of count 10, to undermine that witnesses testimony. In the circumstances, this is a factual situation quite unlike that which existed in Dibble and not a case to which s 16 of the Code has application.

22. [22]
    I have indicated above my finding that the joinder in this case is properly authorised under s 567 of the Code. However, even if that were not so and even if counts 9 and 10 formed no part of the indictment, the evidence relating to those charges would in my view be admissible as potential proof of a consciousness of guilt. In the circumstances I would refuse the defendant’s alternative submission that a separate trial should be granted in respect of counts 9 and 10.

23. [23]
    It was submitted that the evidence given by the witness Kuipers at the committal hearing may have the effect of weakening the Crown case in respect of these counts, but that in my view is a matter for the jury’s consideration and not a matter which bears upon the issues which I must now determine.

Particulars

24. [24]
    It is submitted for the defendant that the particulars supplied by the Crown in respect of each count on the indictment are inadequate.

25. [25]
    The entitlement of an accused person to proper particulars of a criminal charge is well established. As Dixon J said in Johnson v Miller (1937) 59 CLR 467 at 489, an accused person “is entitled to be appraised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.”

26. [26]
    In the Queen v Rogers unreported CA numbers 445 of 1997 and 17 of 1998 delivered 6 May 1998, a case, unlike the present, which involved multiple charges with no particularisation to distinguish one alleged incident from any other Dowsett J said:

“In general, as a minimal requirement, it is necessary that there be sufficient particularity in the allegations to demonstrate one identifiable transaction which meets the description of the offence charged, distinguishable from any other similar incidents suggested by the evidence. I cannot see how there can be a trial in the absence of that degree of particularity. Of course, this requirement does not exclude multiple charges of substantially similar events, provided the evidence demonstrates separate identifiable transactions which can be related to counts in the indictment. I do not imply that this minimal standard will always be sufficient. The nature of the offences in question and the circumstances of the complaint will be relevant in determining the extent to which further particulars should be required. In cases of the present kind it will, for instance, often be difficult for a very young complainant to give particulars of dates although, as this case demonstrates, particulars of place may not be so difficult. A specified period may be sufficient, although the longer the period the less satisfactory is the degree of particularity so offered. The age of the complainant at the time of the alleged offence and at the time of trial may affect any decision as to the adequacy of the particulars. I mean by this only that a Court will be more easily convinced that the Crown cannot further particularise a count where the complainant is a young child than in other cases. However the ultimate question will be whether the particulars are reasonably sufficient for the purposes of the administration of justice and for the accused to make a proper defence. The less satisfactory the particulars, the more important will be an adequate direction as to the difficulties created for the accused in answering the charges and the need for care in scrutinising the Crown case. As with so many other aspects of a criminal trial, the adequacy of particulars is very much a matter of judgment.”

27. [27]
    Rogers was referred to by McKenzie J with whom McMurdo P and Helman J agreed in R v S [1998] 1 Qd R 445. His Honour said at page 452:-

“There are two aspects of the need for particularity. One is the need to eliminate the risk of duplicity. The occasion on which the offence is alleged to have occurred must be sufficiently identified so that it may be differentiated by the jury as a separate event upon which they must focus. There must ultimately be adequate directions that the jury must be satisfied beyond reasonable doubt of guilt of that particular offence and no other and as to the use which may be made of the evidence of other unparticularised acts of the same character in the process of reaching a verdict.

The second purpose of particulars is to give the accused person a sufficient indication of what is alleged against him on the occasion when he is said to have committed the offence.”

His Honour went on to say at page 445:-

“For my part I doubt whether it is possible or helpful to attempt to lay down absolute rules in this area. Once the sufficiency of particulars falls to be decided in the context of the particular circumstances of the individual case, each case must be decided on its merits. Cases which are insufficiently particularised may have common characteristics. So may sufficiently particularised cases. However, in the end, it may be a matter of judgment and impression whether a case falls on one side of the line or the other, given the wide variety of circumstances which may exist.”

28. [28]
    In the present case one of the principal complaints in respect of counts 1 to 6 so far as the adequacy of particulars is concerned is that they do not identify the particular fraudulent act upon which the Crown relies. If there was any uncertainty in that regard it is now made clear that the criminal act identified and relied upon by the Crown is the submission of the claim in each case – as Mr Cowen put it, a “set of paperwork submitted on a given day”. The claim in each case referred to a number of pupils that is, it was a numerical claim, and the Crown alleges that the number provided was in each case inflated. The allegation is that the fraudulent inflation of those claims led to the payment of monies by the government authority over the period identified in each charge.

29. [29]
    So far as the forgery charges are concerned the Crown particularises that the defendant created, or alternatively in the case of count 7, procured others to create, attendance rolls which were false. The allegedly false rolls have been identified and disclosed. These charges have been further particularised in these proceedings in paragraphs 29 to 34 of Mr Cowen’s outline of argument. I attach those passages as an annexure to these reasons.

30. [30]
    In my view the particulars that have been provided here, including those with respect to counts 9 and 10, are sufficient to identify not only the legal nature of each charge brought against the defendant but also to identify the particular acts or matters which are relied upon as the foundation of those charges.

31. [31]
    For the above reasons this application in so far as it involves paragraphs (a), (b), (c), (d) and (e) of the application filed on 10 August 2014 is dismissed. The application in respect of paragraph (f) is with the consent of the parties adjourned to a date to be fixed.

ANNEXURE

“[29]  Count 7 concerns the creation of false attendance rolls when the auditors first arrived in March 2011. Class attendance rolls are accountable documents marked contemporaneously by an individual teacher, in the presence of the child, or noting the child’s absence on the day it is marked. It is the source document which proves a child was in school on a given day (or at least present during marking). The auditors recovered from the school a large number of original legitimate class attendance rolls. Count 7 concerns a number of such rolls that the defendant either personally, or by procuring the witnesses surname Chigeza, surname Carong and Shankaran (who are indemnified), completed at the school in March 2011. For the sake of clarity they are forged in that each attendance roll purports to be completed by a person contemporaneously on each day marked therein with actual knowledge of the facts it attests to and are therefore not true records of attendance. The creation of them meets the definition of all of the ways “forge” is defined in s 1 of the Criminal Code. Count 8 concens the same process except created by the defendant and found on her own computer.

[30] The respondent accepts the particulars in count 7 could be more detailed. The class rolls in question are those attached hereto as Annexure E. They have already been disclosed together with the Addendum Statements taken post committal.

[31] A legitimate attendance roll is to be marked everyday on each date contained in it and to record on each day contained therein whether a child is present or absent. It is to be completed each day on the date in question, not retrospectively. The rolls are forged in that they purport to be legitimate class attendance rolls completed each day and on each date therein by the named teacher with actual knowledge of the respective presence or absence of a child. They are made so that the whole or material part:

1. (a)
   purports to be what, or of an effect that, in fact it is not in that it purports to be completed by a person contemporaneously on each day marked therein with actual knowledge of the facts it attests to and are therefore not true records of attendance,

2. (b)
   or it purports to be made by a person who did not make it or deal with it,

3. (c)
   or it purports to be made by someone who did not give that authority,

4. (d)
   or otherwise purports to be made or dealt with in circumstances in which it was not made or dealt with in that it is not a legitimate class roll accurately recording a child’s attendance on a given day marked daily on a given day in class whilst in the actual presence of the child, or marked on a given day noting the child’s absence on that day so marked by a person with actual knowledge of the child’s attendance or absence on each day in question.

……………………………………………………………………

[34] The intent to defraud is to be derived by inference; by the fact that the documents were created to falsely purport them to be legitimate class attendance rolls. This is to be inferred from all of the circumstances surrounding their creation. … The simple fact of creation of the forged class rolls is sufficient to infer the intent.”