R v Lees[2014] QDC 9

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the defendant in a criminal trial to permanently stay the indictment. The defendant has been charged with dishonestly obtaining money from her father’s business to a value of more than $50,000.

2. [2]
   The complainant, Lester Boyle, owned a business, A & B Bobcat Hire. He was the sole worker in that business which he had operated from 1992. A bookkeeper, Karen Drew, performed tasks such as completing information for the Australian Tax Office including BAS information. He also utilised an accountant. From Easter 2007 he obtained work in Mackay. To facilitate the running of the business while he was in Mackay he came to an arrangement with his daughter, the defendant, for her to collect mail of the business from a PO Box number and to pay the accounts. He arranged for her to be given internet access to both his business account and GST account. Both accounts had chequebook facilities and she was made a signatory to them.

3. [3]
   The complainant says in his statement that she was to receive a tank of petrol each week in payment. It was, according to the complainant, also discussed that the complainant would pay the defendant’s phone and internet bills as well as a small wage once he “got on his feet”.

4. [4]
   The complainant says that the defendant was to pay all business accounts, but also personal expenses of the complainant – rent on his unit at Nerang, telephone, electricity and gas bills, credit card payments and other payments. He says there was no reason whatsoever that she would need to make out cheques for cash.

5. [5]
   It is said to be relevant to my deliberations that the defendant functions at a very low intellectual level. The Crown obtained a report from Dr Shelley Keane of 1 November 2012 relating to whether the defendant had sufficient intellectual capacity to be put on trial. She referred in that report to an IQ test conducted by another neuropsychologist Lynda Troy which assessed her as meeting the diagnostic criteria of mild intellectual retardation. Dr Keane referred also to a report of Dr Jonathan Lichter of 15 October 2009 which concluded she was of unsound mind at the time of the alleged offences caused by her borderline intellectual retardation exacerbated by a depressive illness. It is not necessary now for me to examine that question but it is clear from the whole of those reports, which were put in evidence before me, that the defendant has a significantly mental capacity.

6. [6]
   Dr Keane concluded that the defendant was not deprived of capacity but did have a level of functioning within the mild mental retardation range, also described by her as “extremely low range”. Nevertheless Dr Keane noted that the defendant lives independently and is her mother’s official carer. She had herself set up internet banking for the complainant. She appeared to be able to follow and understand the police record of interview. Dr Keane concluded that whilst her capacity was impaired, she was not deprived of capacity. That issue is not for me to determine. Rather the reports were put before me on the basis that they establish she functioned at a very low level. I accept that to be so.

7. [7]
   The complainant initially told police that there were some 79 allegedly unauthorised transactions by the defendant on his account, using cash cheques. He himself said he did not have access to a chequebook in Mackay by had EFT access to the accounts. The complainant says each of the unauthorised transactions was effected by making cheques out to “cash” which, as I have said, he says the complainant said that the defendant had no reason to do.

8. [8]
   Some bank records and reconciliation reports prepared by Mrs Drew were provided at that time to police but no other business records were then provided. It seems also that only one of the relevant cheques have ever been able to be located. There seems to be a dearth of business invoices. It is possible to determine which cheques were drawn to “cash” by reference to that in the bank statement.

9. [9]
   Because of problems the Crown foresaw in proceeding with the claim in circumstances where there were significant problems with disclosure, the Crown case has been recast. Rather than relying on the specific cheques drawn to cash, the Crown instead relies on admissions the defendant made in her record of interview with police. Details of these are set out in a document headed “Particulars” which became Exhibit 1 before me. Some of them set out the defendant’s estimates of the amount of particular personal items of expenditure, for example, a new bed for her mother costing $700 for a mattress and $300-400 for a frame and a new bed for herself costing about $800. There is also said to be a $1,000 lounge suite (of which the business paid $500) and a number of cupboards costing $300 and $350 respectively. It is also said that the complainant drew $200 per week for a period of about 12 to 14 months for groceries, and $300 every three months for electricity, together with $148 for internet expenses for her boyfriend. Other items of personal expenditure which the complainant admitted to having made, contain no estimate of amount. Such items include DVD recorders, DVDs, underwear, treatment for a sick dog, ANZ credit card payments and new tyres, seat covers and paint works for her boyfriend’s car. On the basis of those matters, the Crown alleges that the property was of a value of more than $5,000.

10. [10]
    The defendant denied any wrongdoing when asked about the cashed cheques by police although she later admitted to the wrongdoing the subject of the particulars in a further record of interview conducted later on the same day.

11. [11]
    The defendant's counsel submits that the terms of the defendant’s authority to use the account remains a central issue at the trial and that in order to consider that question it is necessary that all business records including invoices and cheques which have not been disclosed need to be available.

12. [12]
    Why that is so was not made clear to me. Insofar as the defendant’s expenditure on drawings from the company account might have been for personal use, it is not likely that the business bookkeeper or accountant were ever given invoices by the defendant. The company very probably was never in possession of such invoices and so could not disclose them. There is no evidence that the defendant provided them to the company. There are likely to be invoices for business transactions paid by the defendant from the business account which are missing but it is not clear to me how their production would not assist a jury in determining what the terms of the retainer were. It seems most, if not all, of the cheque butts are available, as are all statements. Insofar as the defendant’s pattern of use of the account for personal expenses might throw light on the terms of the retainer whereby she was authorised to use the account, I do not think the absence of invoices is relevant.

13. [13]
    Suppose for example that the defendant regularly drew a sum for weekly grocery expenses as alleged. It is not reasonable to think that the business was given a copy of such grocery bills. It is not asserted by the defendant that she did so. What appear to be missing, which the business may well have had at one time, are copies of business invoices. These may prove payments of a particular sum were in payment of such an invoice. If so, such payment would not be relevant to a determination of the terms of the defendant’s retainer or relevant to consideration of her authority to draw on the account for personal expenditure.

14. [14]
    I fail to see how the business’s inability to produce the invoices or other documents undermines the defendant’s capacity to prove the terms of the retainer. Ultimately it is likely that will be proved by oral evidence from the complainant including his answers during cross-examination and, if she were to give evidence, the defendant. The fact that regular payments for a particular sum may have been made – for example, for groceries or electricity – may perhaps be used to ground an argument that such payments, not being questioned by the complainant who had access to his bank account over a lengthy period, were part of the defendant’s retainer. It is unrealistic to think that invoices in respect of such matters would have been provided to the business or its bookkeeper. Certainly the defendant does not assert that that is what occurred.

15. [15]
    The defendant’s counsel submits that the circumstances of disclosure in this case would undermine confidence the complainant has met its obligations in that regard. The original quantum of the alleged criminal conduct of the defendant was, as I have said, determined by consideration of the bank statements and perhaps cheque butts, although these records are not complete. There are gaps in these business records.

16. [16]
    On 19 December 2013 the Crown nevertheless specifically advised the defendant’s solicitors that all of the records of the business had been disclosed. That statement was against a background of ongoing disputes about disclosure. Indeed, an earlier trial of this matter on 9 August last year had been adjourned due to late disclosure by the Crown. Despite that assertion of 9 December, further financial records of relevance were disclosed on 16 January 2014. It is in that circumstance that the defendant’s counsel submits that the applicant “apprehends that disclosure remains incomplete or selective”.

17. [17]
    The applicant does not demonstrate what documents she asserts the business may have had, but has not disclosed, and of how they may be relevant to her defence or why. She does not demonstrate, in my view, why the absence of any document might prejudice the conduct of the trial.

18. [18]
    Rather, the applicant’s submission appears to be that because of the manner in which the complainant has effected disclosure – in a somewhat piecemeal and haphazard fashion – that the court cannot have sufficient confidence that the complainant has properly met its obligations of disclosure. It is submitted that the applicant is now unable to conduct a proper forensic analysis of the complainant’s records to ascertain whether the applicant’s admissions in the record of interview are true and accurate. Why that is so or what documents might be expected to be adduced and how they might assist that process are not identified. The applicant submits that the inability or alleged unwillingness of the complainant to provide full disclosure amounts to an abuse of process being such a serious breach of a fundamental basis of a fair trial as to undermine confidence in its outcome.

19. [19]
    In my view, as the Crown case is presently cast, the applicant has failed to demonstrate to me how that is so.

20. [20]
    Whilst the respondent accepts that the complainant is unable to provide the full financial records of the business, that is not, in my view, determinative of the issue. In my view, the absence of such records has not caused me to conclude there is a significant risk of unfairness to the trial in circumstances where it is not shown how such records might be of relevance.

21. [21]
    No doubt the defendant's intellectual incapacity may present some difficulties for a jury in the assessment of her defence at trial. In my view, that problem would not be overcome by the provision of original cheques in circumstances where cash cheques are, I was told by the applicant’s counsel, noted as such in bank statements or by the provision of all invoices related to valid business payments. The jury will, I have no doubt, be warned of the need to scrutinise the complainant’s evidence and the defendant's record of interview (and her evidence if she gives evidence) with care, being mindful of her intellectual deficits. They may well be advised of the risks associated with the absence of relevant documents if that becomes an issue upon a full examination of the facts at the trial. I have no doubt that the trial judge will ensure the jury is given such warnings as are necessary to protect the defendant’s interests, having regard to her intellectual disability.

22. [22]
    Whether the admissions the defendant made in her record of interview were made and were true is a jury question. I do not think the applicant has demonstrated that the course of disclosure – despite its shortcomings – is such to determine that issue.

23. [23]
    The applicant relied on a decision of the High Court in R v Edwards (2009) 83 ALJR 717. In that case the court allowed an appeal from a judge’s decision granting a permanent stay of an indictment on the basis of lost evidence and its prejudicial effect of delay in prosecution of the case.

24. [24]
    The High Court held that the correct test is whether the continuation of proceedings would (rather than could) involve unacceptable injustice or unfairness or whether continuation of the proceedings would be “so unfairly and unjustifiably oppressive” as to constitute an abuse of process.

25. [25]
    In my view the applicant has not established that its case meets that test for the reasons I have set out.

26. [26]
    The application is dismissed.