R v Jones[2024] QDC 144

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The Director of Public Prosecutions applies to reopen the sentence.

2. [2]
   On 5 September 2023, the respondent pleaded guilty to one count of dishonestly obtaining a pecuniary benefit for himself of a value of $30,000 or more. He gave an undertaking to testify in the prosecution of Michael Bosscher in accordance with his sworn statement. His sentence was reduced to reflect the future cooperation pursuant to s 13A of the Penalties and Sentences Act 1992 (‘the Act’). He was ordered to perform 200 hours of unpaid community service and to pay a fine of $15,000. But for the undertaking, a term of imprisonment for 2 years, wholly suspended for 2 years, would have been imposed instead of the community service component of the sentence.

3. [3]
   A few months later the respondent did testify in the Bosscher trial. He gave contradictory answers.

4. [4]
   The application to reopen was brought under s 188 (2) of the Act for a partial failure to cooperate in accordance with the undertaking.

The submissions

5. [5]
   The prosecutor, Mr Cummings, argued that the respondent had deliberately changed his evidence to subvert the prosecution case and did not earn the reduced sentence. Mr Copley KC (as His Honour then was), contended that the respondent had substantially earned the benefit and should retain it; he had corrected the main inconsistency before cross examination, and any other differences were inconsequential, being explicable as either a mere difference in expression or the vagaries of memory.

The discretion

6. [6]
   If the court is satisfied that an offender has partly failed to cooperate, without reasonable excuse, it may, pursuant to s 188 (4) (b) of the Act, replace the reduced sentence with the sentence it considers appropriate, not exceeding the sentence that would have been imposed if the undertaking had not been given.

7. [7]
   The defence fairly conceded the partial failure to cooperate. No reasonable explanation has been offered for it. Accordingly, the discretion to reopen is enlivened. It calls for an assessment of the value of the cooperation provided against that which was promised. It is not an opportunity to punish for untruthful evidence or to reassess the respondent’s conduct in the commission of the original offence.^[1]

Assessment of the respondent’s cooperation at sentence

8. [8]
   The respondent and Bosscher had been jointly charged with fraud against Bosscher Lawyers Pty Ltd. Shortly before the trial was due to commence, a fresh indictment for fraud was presented against the respondent. He pleaded guilty on the basis he had not declared cash payments in his tax returns and thereby dishonestly obtained a pecuniary benefit. He made a sworn statement and gave an undertaking to cooperate with law enforcement in criminal proceedings. The only matter on foot was the trial of Bosscher.

9. [9]
   The primary value of the evidence offered by the respondent was its tendency to confirm the allegation of the principal prosecution witness (Meehan) that Bosscher was the initiator and controller of an off the books cash arrangement. At sentencing, I informed the respondent the reason he was to be released on a community service order, rather than a suspended term of imprisonment, was his promise to testify to Bosscher’s initiation and control of the joint scheme and his apparent credibility on those issues.

10. [10]
    The respondent’s credibility was especially important because of perceived weaknesses in the evidence of other witnesses. The prosecution had submitted: “In short Jones is likely to present as a credible witness capable of providing the support needed.” The respondent’s own counsel emphasised the respondent was “likely to be the most credible witness they have…”

The prosecution case

11. [11]
    The prosecution case was that, for 4 years, Michael Bosscher presided over a dishonest scheme to keep legal fees paid in cash out of the business records of Bosscher Lawyers Pty Ltd for the private purposes of himself, the respondent and Meehan. The three men received cash payments from clients directly, and indirectly through junior staff and each other. Bosscher’s liability was framed both as principal offender and party to an unlawful plan.^[2]
12. [12]
    Central to the prosecution case was Meehan. He had been in a partnership with Bosscher that ended with a voluntary liquidation. The pair established Bosscher Lawyers Pty Ltd before declaring bankruptcy and then practiced as employed solicitors. According to Meehan, Bosscher remained in control of the practice, notwithstanding the named practice manager was Mrs Bosscher. Bosscher devised a plan for the three principal solicitors, Bosscher, Meehan and the respondent, to take undocumented cash. The scheme ran for about 4 years (until Meehan was dismissed). Clients were encouraged to pay their fees in cash and the solicitor would withhold some, or all of it, from the company. Monies withheld were dispersed amongst the three of them.

13. [13]
    Meehan’s clients included those associated with organised crime. He described collecting bags of cash off site in amounts of $50,000 to $250,000, with substantial amounts shared with Bosscher and the respondent under the joint arrangement. The Crime and Corruption Commission (‘the CCC’) began investigating Meehan’s biggest client during the last year of his employment at Bosscher Lawyers. At Bosscher’s direction, Meehan falsified the business records in response to a notice to produce.

14. [14]
    Bosscher and the respondent dismissed Meehan on grounds of stealing. Meehan went to the CCC. He initially sought an indemnity, then undertook to give evidence against the others in exchange for a reduced sentence. He volunteered extensive admissions about his own involvement in the fraudulent scheme, but he also lied to hide any involvement by his then wife and his then girlfriend. Soon after, he pleaded guilty to aggravated fraud and falsifying documents.

15. [15]
    The depth of Meehan’s past dishonesty offered fertile ground for cross examination. There was, however, a reasonable body of circumstantial evidence to support the existence of an off the books scheme involving all three solicitors.

16. [16]
    Strofield had worked as a law clerk for Jones and then Bosscher. From time to time, he was tasked with collecting fees. Clients paid him in cash, on and off the premises. He had arranged meetings to collect cash payments in and around the city, coffee shops, under a bridge, at a worksite in Toowoomba, at the Hyperdome, at a client’s home and at his own unit. Several times a client transferred cash into Strofield’s private banking account. Strofield admitted to occasions of skimming and pleaded guilty to six counts of stealing. He provided a statement to the CCC in exchange for a reduced sentence. He had gambling and substance issues as well as memory problems. His evidence was that he was instructed to pursue clients for the cash and he had passed on most of the money, although his specific memory was limited.

17. [17]
    The Bosscher family bank accounts had received deposits totalling $100,000 that could not be sourced. The unsourced deposits in Meehan’s bank accounts were much larger. The respondent was found with a substantial amount of cash in his home safe. The financial records of Bosscher Lawyers Pty Ltd showed substantial shortfalls in the payments recorded compared to the legal services certain clients received. Some of those clients could recall what they actually paid. In addition, messages about payments made, or due for collection, were found. The banking records did not correspond. Meehan claimed he, Bosscher and the respondent, would distribute the proceeds of the scheme by leaving cash under each other’s keyboard. Numerous messages saying “keyboard” were recovered from the phones. There were also messages from junior staff receiving cash on Bosscher’s behalf, indicating they had left the money in his office (contrary to the company’s payment processing procedures). For example, there was a chain of messages from Bosscher to Strofield, chasing $10,000 from his client Tatt. Strofield drove Tatt to his bank where Tatt withdrew $15,000 in cash. Bosscher subsequently handled Tatt’s sentence hearing. Yet no money ever went into the company accounts. Similar circumstances were identified for some of the respondent’s cases.

The respondent’s statement

18. [18]
    Much of the respondent’s statement concerned what might otherwise be deduced from the circumstantial evidence. The three solicitors had an arrangement to take cash. The respondent referred to the records concerning 15 or so of his own clients, as instances where cash was, or probably was, or possibly was, shared between them. Based on the records with the CCC, he estimated his total share was between $30,000 and $40,000. He indicated his participation had been naïve and reckless rather than dishonest. He maintained as far he was concerned the scheme was limited to general monies and only “small” amounts.

19. [19]
    The most valuable part of the respondent’s statement was the small portion that went beyond the ambit of the circumstantial evidence. It concerned Bosscher’s leadership of the scheme. The respondent swore that Bosscher was the de facto head of the law practice and had purported to authorise the cash scheme on behalf of the company. Bosscher was the one who made decisions about where the cash would go. According to the statement, the three of them had meetings where Bosscher would decide how much cash was withheld, how much went into the trust account and the distribution of the balance.

The importance of the respondent’s promised cooperation

20. [20]
    Of the fraudulent transactions particularised by the prosecution, most of the payments had been made by Meehan’s clients to Meehan. That is not overly surprising given that this was a scheme based on the omission of records. Meehan was also the one to expose his own actions to investigators. He also appeared to retain the most lucrative clients. Those clients had access to, and a preference for, cash. They were involved in major organised crime and brought in a lot of business.

21. [21]
    Bosscher could not be liable for Meehan’s expansive fraudulent acts unless proved to be a party by procuring or encouraging those frauds, or unless Meehan’s fraud was otherwise a probable consequence of the joint unlawful plan. Bosscher’s leadership of the scheme was obviously important. Bosscher’s broader management of the company was related to that. It was also relevant to his knowledge of what Meehan was doing. Bosscher’s knowledge went to the scope of the common unlawful plan.

22. [22]
    According to the respondent’s statement, Bosscher “effectively controlled BL.” If Bosscher oversaw the practice, it would seem more natural that he would assume control of the cash scheme. Further, as head of the modest sized practice, he would be less likely to miss a gross underreporting of Meehan’s recorded billings for his large cases. Yet there was no intervention until Meehan was dismissed in 2016. The failure to act sooner would be consistent with the manager’s complicity in the scale of Meehan’s fraud.

23. [23]
    Proof of Bosscher’s participation in Meehan’s large-scale fraud was in turn important to the case against Bosscher for the eight counts of falsifying documents. It was the alleged motive. The falsified records concerned cost agreements and payments from Meehan’s client, Luu, a notorious organised crime figure. The effect of the forgeries was to hide the disparity between the substantial legal work performed and the company’s records of the fees paid and payable.

The trial

24. [24]
    Bosscher never disputed the crown’s allegation that he, Meehan and the respondent had kept some cash payments. He never challenged Meehan’s evidence about Meehan taking bags of cash. His defence was that those large sums were Meehan’s lone frolic and outside of the arrangement. In contest was not only Bosscher’s knowledge of what Meehan was doing, but Bosscher’s management of Meehan.

25. [25]
    In the witness box, the respondent did not acknowledge Bosscher’s leadership of the legal practice. He said the practice ran by committee. He appeared to deliberately sidestep a question about whether Bosscher had purported to authorise the withholding of cash payments. He denied that Bosscher had made any decisions for the three of them in respect of the cash taken by Meehan or the respondent. Ultimately, he did acknowledge Bosscher made some decisions, but it was not until the end of evidence in chief, on the morning of the third day of his evidence, after an application to declare the respondent hostile and a visit to the courtroom by his counsel, Mr Holt KC. Some questions were asked again. The respondent changed his evidence, to the extent of acknowledging there had been some meetings where Bosscher would decide how much cash would be withheld. Under cross examination, he maintained that version was the correct one but offered no explanation for his earlier denial of the decision-making role. He simply agreed that he had to give the second version to avoid a harsher sentence.

26. [26]
    Appendix I sets out the evidence within the respondent’s statement on the issue of control, for which the sentencing benefit was given, against his oral testimony.

27. [27]
    On the application, Mr Cummings submitted a list of other instances where the respondent’s evidence in the witness box fell short of the statement. Some of those matters might be viewed as mere differences of expression or a genuine memory issue. Others however serve to reinforce the conclusion of a deliberate change. Appendix II sets out examples relating to the respondent’s own dealing with clients.

28. [28]
    There were other matters. The respondent’s statement had recorded that at some point Strofield had become a participant in the scheme, “at least to the extent of encouraging clients to pay cash, collecting cash and delivering that cash to me”. The respondent’s oral testimony did not mention Strofield’s participation. While he was not asked a direct question about it, some of his answers were prone to mislead by omission. For example, he distanced himself from certain payments (that he had previously admitted) by alluding to the dishonesty of Strofield. One such example was the case of Dr Bell. Bell had paid Strofield. No payment from Bell went into the company accounts. The respondent’s statement asserted Bell made payments which were then dispersed between himself, Meehan and Bosscher. In court he only said that: Bell “certainly paid cash to somebody”, implying that Strofield may have stolen it. That had wider significance because Strofield had taken the payments from Bell at locations outside of the office, as he had done with other clients. By raising suspicion in relation to the money from Bell, the respondent effectively threw suspicion upon all of Strofield’s off site collections.

29. [29]
    At times the respondent appeared evasive in the witness box. There were unusually long pauses for seemingly straight forward questions. He gave a number of farcical explanations^[3] for objective evidence that would otherwise reflect more badly on Bosscher or himself.

Partial compliance without reasonable explanation

30. [30]
    The contradictions about Bosscher’s leadership and control could not be an innocent mistake. Control of the scheme was fundamental. The respondent had given a sworn version just 10 weeks earlier. He knew the importance of it. It had even been emphasised at his sentence. Furthermore, while that was the most striking change, it was not the only point of demonstrable unreliability. The nature and extent of the respondent’s departure from his statement, the tendency of those changes to be adverse to the prosecution, the apparent absence of any prior attempt to amend his statement, and his other improbable answers, combine to exclude an innocent explanation for the contradictory evidence on the issue of control. The remediation of his evidence was limited to a begrudging acknowledgment of Bosscher’s leadership at some meetings.

31. [31]
    During the hearing to reopen, Mr Copley referred to the stress of the original serious charges shadowing the respondent for years and his concern for his family. As counsel acknowledged, that is not a reasonable explanation for failing to comply with the undertaking. Many informants would face similar stressors. Most of them would not have had the benefit of legal advice from senior counsel before, during and after the making of the statement the subject of the undertaking and none of those informants would be likely to grasp the importance of good faith and compliance better than a criminal lawyer of the respondent’s experience.

Reopening the sentence

32. [32]
    The respondent only partially complied with his undertaking. He gave a contrary version of Bosscher’s role and control. He partially revised his evidence, but in doing so exposed himself as an unreliable witness. It was clear that one of his versions was false. Untruthful evidence does not advance the administration of justice. The value of the respondent’s evidence was substantially reduced. He presented as the least credible of the witnesses from the company. He ought not be permitted to retain a sentencing benefit he did not earn.

33. [33]
    The sentencing benefit for the undertaking was the removal of a sentence of imprisonment and the recording of a conviction. The nominal sentence of 2 years imprisonment, wholly suspended for 2 years with a fine of $15,000 was reduced to an order to perform 200 hours of unpaid community service, with the same fine of $15,000, but without a conviction recorded.

34. [34]
    The Probation and Parole Office regards the order for unpaid community service as satisfied. If the court were to now replace the community service order with a different penalty, the substituted sentencing order would (in practical effect) be cumulative on the community service already completed. Therefore, the community service performed under the reduced sentence must be considered on the reopening.

35. [35]
    The respondent completed 100 hours under the usual supervision of the probation service. The other 100 hours for which he was credited fall into a different category.

Community service

36. [36]
    The respondent requested approval to complete community service through legal work. On an unknown date, he was given that approval. That was surprising given that his criminal offending involved taking cash payments without declaring them. I asked for evidence that the pro bono work was performed. When it was not forthcoming, I set the matter down for today.

37. [37]
    An affidavit was received this morning. It had been emailed after hours last night. The affidavit was sworn not by the respondent, or anyone supervising the pro bono work, but by the respondent’s solicitor. The solicitor could only attest to what the respondent told him, namely that the respondent performed the community service hours through work on a pro bono murder trial with two counsel. The affidavit exhibited a copy of the document the respondent forwarded to the Probation and Parole Office as the proof he had done the unpaid work. It bears the letterhead of the respondent’s law firm, the date of “issue” and the anonymised name of a trial. The body of the document is a table with columns for date, work, time and “author”. There is no reference to the pro bono scheme and no assertion of unpaid work. The entries in the “author” column are typed initials. The entries in the “work” column include vague terms such as “general work” and extend to counting 6 minute intervals for emails. The document does not identify the purpose for which the table was created. Three signatures are at the bottom of the last page. They are bare of any express declaration or averment.

38. [38]
    Mr Boddice appeared for the respondent today. He advised it was the respondent and the defence barristers in the pro bono case who had signed the document. He had verified their signatures with the counsel involved. He also confirmed that the document was not contemporaneous. It was signed sometime after the last of the times recorded. The column “author” was a misnomer. The initials typed in that column were meant to be the initials of Counsel in the case, but were not placed there by them. In fact, wrong initials were entered in the column nine times.^[4] Furthermore, an entry of 15 hours work should have been 5 hours. The respondent advised Mr Boddice of that particular error after an adjournment.^[5]
39. [39]
    On its face the document was prepared at a time when this application to reopen the sentence was on foot. The document must have been prepared by the respondent, or at his direction by someone who worked for him. The respondent was the subject of the supervision order. It is concerning that the Probation and Parole Office would accept a piece of paper like this from an offender to finalise 100 hours of a court order. It is very surprising that a solicitor of the respondent’s experience would produce as proof something in such ambiguous and careless form, even omitting any assertion that the work recorded was firstly, performed by the offender and, secondly, free of charge, much less a sworn declaration.

40. [40]
    Some contribution through pro bono work is a common but important part of legal practice. The respondent’s contribution through pro bono work was referenced in mitigation at his sentence hearing. It was part of the antecedents considered in the fixing of the nominal sentence on 2 September 2023. In fact, the timing of activities included in the respondent’s table suggests the murder case was a pre-existing commitment. The very first entry is not preparation, but a pretrial hearing, two days after the sentence. It also predates the request for approval to use legal work as community service.

41. [41]
    For these reasons I have placed less emphasis on the pro bono component of the community service hours credited by the probation and parole service.

The order

1. The application to reopen the sentence is allowed.
2. The order for 200 hours community service is set aside, and imprisonment for 16 months wholly suspended for an operational period of 16 months substituted
3. The fine of $15,000 is affirmed.

APPENDIX I

The respondent’s evidence about management and control (emphasis added)

1. A.
   Bosscher Lawyers Pty Ltd

1. i.
   The respondent’s statement, paragraph [19]:

• “as far as I…could observe, the decision making of the firm was essentially in the hands of Bosscher. Mrs Bosscher was the practice manager on paper, but Mr Bosscher effectively controlled BL… At least on a day to day basis he acted in a managing partner capacity”.^[6]

1. ii.
   The trial: T 16. 94

• Bosscher being, the more senior & having I would say, more sway over decisions. …I technically had a vote…there wasn’t any deadlock….

• Q …who was making the decisions running the organisation..? ---it’s a difficult question to answer. I mean …it wasn’t a dictatorship. ..it was by committee but I always took my lead from Mr Bosscher because…he was my mentor and I respected him far – and his opinion far more than any else’s”

1. B.
   “Authorisation”

1. i.
   The statement paragraph [29]:

• “As initially explained to me by Mr Bosscher that money could, with the lawful permission of BL, then be applied as “directed” by the company. I understood from Mr Bosscher that permission of BL could be given by him because he was essentially running the BL. Mr Meehan, who was very senior, was obviously accepting of the arrangement.”

1. ii.
   The trial: T 16.99

• Q. And that was purportedly being authorised by Mr Bosscher on behalf of Bosscher Lawyers?--- Well, my understanding was it was author – it was understood by both Bosscher, Meehan and, I understand, Mrs Bosscher. I thought everyone knew.

1. C.
   Decisions about where the cash went

1. i.
   The statement paragraph [31]:

• “Mr Bosscher would decide at these meetings how much, if any, of the cash would be deposited in the BL trust account and what proportions of the remainder of the cash would be divided between us”^[7]

1. ii.
   The trial:

1. a.
   T16.99: As to who decided how much cash they would each receive: “it wasn’t really a decision to be made. It – there was – I don’t quite understand. There’s three of us. It just – that was equitable.”
2. b.
   T16.102: A little later he was asked if there were ever situations where some cash was put into the trust account. “I can’t think of an example, but I wouldn’t dispute that. I suspect that’s right.” He was then asked who would make that decision. “That was a decision for the person whose client it was.”
3. c.
   The second day he was again questioned about any meeting about dividing the cash and who made the decision:

1. i.
   T 14.6 “no formal meetings about it no.” “It may have happened” that the three of them divided the cash, but not at a “formal sit-down meeting.”
2. ii.
   T14.7: It was discussed at meetings, but it was not the focus of meetings and Bosscher was not always present.
3. iii.
   T14.8: He was asked about those meetings when Bosscher was present: “Well the decision was in the hands of the person whose client it was”^[8]
4. iv.
   T14.8: He was asked if it wasn’t Bosscher deciding in every one of those meetings. He said “no”. As to whether he was clear about that? “Yes”. He repeated that was “no real decision to be made as far as I was aware” as to the split. He repeated it was a three way division and the person with carriage of the file would decide if some of it was paid into trust.

1. d.
   On the third day:

1. v.
   Q: Now I just want to clarify something…Where there were meetings where monies received under the arrangement were gathered, who would decide what would happen to those funds?--- Mr Bosscher.

… when you say he would make the decision, what would he decide?--- What would occur with the monies. Whether or not they were to be placed into the trust account account or not, and if so, how much would be placed into the trust account.

In relation to those funds which weren’t placed into the trust account, who would decide…what would happen to those funds?--- That would be the same decision by Mr Bosscher.

And as to who would received what of those funds? --- whatever was decided not to place in the trust account…it was always the case that it would dispersed equally.

And who would decide that ?--- Mr Bosscher.

Would that be the case with all the funds received under the arrangement…? on occasions when the person whose file it was would just make the decision without it being consultative…But if there was ever a sit down to discuss, it was always a – the decision was always Mr Bosschers at the end, yes.

The respondent was then asked whether that approach changed. He answered that “the arrangement involved more than it sort of – further than it commenced or how I – I was introduced to it. So that sort of came in as – as it progressed. Initially it was quite easy, so it wasn’t a lot of decision making to be made. But whenever there was a decision to be made, I certainly went to Mr Bosscher…

APPENDIX II

Other examples from the respondent’s evidence (about his own clients)

According to the respondent, any cash he withheld from his clients’ payments was shared with Bosscher (and Meehan).

1. Dr Bell: A small amount of cash was deposited into the trust account for Dr Bell. The respondent’s statement asserted that Bell had paid some extra and “his cash payments were divided as per the arrangement”.^[9] At trial, not only did the respondent not identify this money as part of the “arrangement”, he hinted that Strofield may have stolen it, saying Bell “certainly paid cash to somebody”

2. Dylan Shadlow, Strofield represented Shadlow at a bail application and the respondent a committal hearing. The respondent’s statement asserted that $9970 cash went to the arrangement, comprising $2000 paid directly to the respondent; and the balance collected by Strofield who gave it to the respondent. At trial, the respondent only spoke of receiving “one or two thousand dollars”.^[10]

3. Silvestro: Text messages showed the respondent used Strofield to pursue Silvestro for $7000. Only $3,500 went into the trust account. The respondent’s statement at [71] stated Silvestro “may have paid at least $3000 more and it was divided.” At trial the respondent indicated that did not happen: “there is no way” he paid it all, but conceded he may have paid “some more”.

4. Carver : The respondent appeared for her at a sentence hearing, at about the time Meehan was dismissed. There was no record of any fee paid. In his statement the respondent accepted he had quoted $2000 to Carver’s boyfriend and “I accept her legal fees had been paid in cash …I believed the cash received was distributed under the arrangement.^[11] At trial, he implied it was unlikely he had taken any cash. He could have appeared for free. He indicated he had stopped participating in the joint scheme before that or at least 4 months earlier.^[12] In cross examination he said he did not know if the $2000 had been paid or if he had received it or even if it needed to go into the trust account.^[13]

5. Angeli: The statement admitted some payments were shared between the three of them. Angeli had “paid cash to me on several occasions. Some of it was banked and receipted, some of it was not”.^[14] He gave the example of exhibit 72 (his text messages referring to $200 given to Strofield , with a request Angeli pay the remaining 600 before the respondent went on leave). His statement went on: “I believe this sum of cash and all others which were not banked were divided under the arrangement.”^[15] At trial, the respondent said he no direct recollection of Angeli^[16] and he had “no idea” if money was paid.^[17]
6. Lennon: The only entry in the trust account was $420. It was the Legal Aid contribution. According to the respondent’s statement [59] Lennon “paid his contribution under that grant… Over a period he also paid cash for legal services…I do not know how much was received in total or how much of it I received.” At trial the respondent did not acknowledge receiving any cash. “My overwhelming recollection of the matter in its entirety, is how difficult it was to have Mr Lennon pay his fees.”