New South Wales Court of Criminal Appeal CITATION : Regina v Van Tongeren [2000] NSWCCA 522 FILE NUMBER(S) : CCA 60070/00 HEARING DATE(S) : 21 August 2000 JUDGMENT DATE : 11 December 2000 PARTIES : Regina v Cornelia Elizabeth Van Tongeren JUDGMENT OF : Heydon JA at 1; Smart AJ at 2; Ireland J at 49 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 92/21/1109 LOWER COURT JUDICIAL Backhouse DCJ OFFICER : COUNSEL : (A) T Molomby (R) R D Cogswell SC SOLICITORS : (A) D J Humphreys (R) S E O'Connor CATCHWORDS : Criminal Law - dishonestly obtaining money or an advantage - verdicts not inconsistent - no miscarriage - need to consider each count and facts relating to it separately. LEGISLATION CITED : Nil CASES CITED: Nil DECISION : Appeal against convictions dismissed. , IN THE COURT OF CRIMINAL APPEA L CCA 60070/00 HEYDON AJ SMART AJ IRELAND AJ Monday, 11 December 2000 REGINA v CORNELIA ELIZABETH VAN TONGEREN JUDGMENT 1 HEYDON JA: I agree with Smart AJ. 2 SMART AJ: Cornelia Elizabeth Van Tongeren appeals against her conviction on one count of by deception dishonestly obtaining money for herself, namely $10,000 on 15 July 1997 and on two counts of by deception dishonestly obtaining a financial advantage for herself namely $20,000 on 14 July 1997 and $6,000 on 4 August 1997 being counts 2, 6 and 7 of the indictment. In each instance she presented a document to the paying bank thereby representing that she was authorised to withdraw the particular funds from the account of her mother-in-law, Catherine Van Tongeren, the complainant. The sum of $10,000 cash was withdrawn from the complainant's account with the National Bank of Australia (National) Emu Plains by the appellant. At her instigation the sums of $20,000 and $6000 were transferred from the complainant's account at Advance Bank (Advance) Penrith into the account of the appellant and her husband, Hank Van Tongeren at the same branch of that bank. The complainant was an elderly lady who was in hospital. As the various events occurred against a tragic background and there were mitigating circumstances, the appellant was given a concurrent and lenient sentence on each count of 50 hours community service. 3 The appellant was acquitted on counts 1, 3, 4, 5, 8 and 9, being the counts of dishonestly obtaining an advantage or money by deception. 4 The appellant contends that the convictions represent a miscarriage of justice as the jury should have had a reasonable doubt and that the verdicts of guilty on the three counts were inconsistent with the verdicts of not guilty on the other counts. 5 Count 1 was based on a form of National headed "Change of Specimen Signatures" and dated 8 July 1997 which authorised the appellant to operate the complainant's account with National. The signature "C. Van Tongeren" was not that of the complainant although it purported to be so and was so represented to National. That signature was placed there by the appellant who said that she had the complainant's authority to sign her name. 6 Count 5 was based on a form of Advance headed "Authority To Operate" and dated 14 July 1997 which authorised the appellant to operate the complainant's account. Again the signature "C. Van Tongeren" was not that of the complainant although it purported to be so and was so represented to Advance. It was placed there by the appellant who said that she had the complainant's authority to do so. In both instances the appellant contended that the complainant intended that she should operate the account of the complainant. The complainant left it to the appellant to pay the complainant's debts and accounts out of her money. 7 Count 3 related to a withdrawal by the appellant from the complainant's account with National of $2200 cash on 9 October 1997 and count 4 to one of $290 cash on 6 February 1998. Count 8 related to a withdrawal by the appellant from the complainant's account with Advance of $1000 cash on 8 October 1997 and count 9 to one of $600 cash on 19 March 1998. 8 These four withdrawals took place after 4 September 1997 being the date of a General Power of Attorney from the complainant to the appellant and of the will of the complainant leaving the whole of her estate to the appellant. The amounts so withdrawn were relatively small and could have been for the purpose of assisting to maintain the complainant. The Crown accepted that it would be hard pressed to secure convictions in respect of the withdrawals after 4 September 1997. The judge in her summing-up quoted the Crown Prosecutor as submitting "if you were to look at all the evidence, the Crown was confronted with the power of attorney from 4 September 1997 and from that point she may have had a legal (sic) belief that she could access the funds but before 4 September there was no such document". 9 The withdrawals of $10,000, $20,000 and $6000 were in quite a different category. They all took place well prior to 4 September 1997 and they were for the appellant's purposes. The transfers of $20,000 and $6000 from the complainant's account to that of the appellant and her husband made it even harder to accept that the moneys of the complainant were being used for her purposes. The complainant was a pensioner. It is one thing for her to arrange for the appellant to pay her debts out of her moneys while she was ill and recovering. It is quite another for the appellant to denude the complainant of her assets for different purposes. The appellant had no authority to do that. In her summing-up the judge noted that counts 1 and 5 were based on the authorities earlier mentioned and that the other counts were based on withdrawals in the amounts mentioned (in the indictment). 10 Prior to June 1997 the complainant, lived in a "granny flat" at the rear of the home occupied by her son and the appellant. The husband of the complainant had died earlier in 1997 and the appellant's husband was admitted to hospital with a serious illness. The complainant, who was born on 3 March 1918, developed heart problems and on 24 June 1997 she underwent by-pass surgery. She expected to be away from home for about a fortnight. Complications arose after the surgery and she had to stay in hospital and have further surgery. Her stay in hospital became a long one and that depressed her. Because of her prolonged stay she had to make arrangements for her financial affairs to receive attention. 11 The appellant said that she visited the complainant in hospital every day and sometimes twice a day. She also visited her husband in hospital. The appellant stated that when the complainant realised that she would be in hospital longer than expected she asked her to collect a parcel from the National. The appellant said that she went to the bank and was told that she would need a letter. She returned to the complainant and advised her accordingly. She told the appellant to "get some paper and write it out". The appellant said that she went to the nurse's desk in the hospital and was given some Westmead Hospital letterhead. The appellant wrote out at the bedside "This is to say that I give my daughter-in-law permission to pick up my sealed package and operate my account as I am still in hospital. Her name is Cornelia Van Tongeren". The complainant signed it. The appellant stated that she said "You can't take that to the bank Nan it's got, it's very scrawly that writing". The complainant allegedly replied "Well do another one and you just sign it" and added "Can you now pick up my bank books and get my pension put in." The appellant stated that she said "Well I won't be able to operate your account because it doesn't state this on it". 12 She stated that she then wrote out another note and asked the complainant to sign it. She replied "No you sign it because it's no good anyway. My signature is no good anyway". The complainant had swollen hands and was quite ill. The appellant said that she wrote out the document at the hospital in the presence of the complainant but signed the complainant's name at home. This document was taken to the National. It is dated 6 July 1997 and reads: "This is to say that I give my daughter-in-law Cornelia Van Tongeren permission to pick up my sealed package as I am still in hospital. She has permission to operate my account." The National gave the appellant the complainant's parcel which contained two bank books and some other papers which bear the writing of the complainant. 13 The appellant stated that at each bank she was given a form to complete She filled out the National form at the hospital. The complainant said "You just do it. I can't do it". The appellant said that she copied the complainant's signature from her pension card and took the form to National. The appellant further stated that the complainant also told her to fill out the form from Advance. The appellant filled out the form at her home, signed the complainant's name and took the form to Advance. 14 At the trial the appellant formally admitted that the signatures "C. Van Tongeren" which appear on the National form and the Advance form just mentioned in each case effectively caused the respective banks to allow her to operate the accounts in the name of the complainant. 15 About 12 July 1997 or a little before, while still in hospital the complainant became nervous and anxious about some further impending surgery and asked the nurse looking after her to telephone the appellant and ask her to talk to the doctors about the seriousness of such surgery. The Intensive Care Unit Registrar has stated that on the day of the operation, Saturday 12 July 1997, the risks of and necessity for the operation were explained to the complainant. She was alert and orientated and able to understand that there was a significant risk of dying from the operation. She also understood that if she did not undergo the operation and her wound was not cleaned she would die of "certain sepsis from her wound infection". 16 The complainant declined to proceed with the operation until she had made a new will. As the nurse was unsuccessful in her attempts to obtain a solicitor, she spoke with a social worker. She was also unable to obtain a solicitor. The social worker attended on the complainant with a printed will form and filled it out in accordance with the complainant's wishes. The complainant stated that one of her sons was brain damaged due to a brain tumour and that the other was an alcoholic. Accordingly, she wanted to leave her estate to the appellant. The will was signed and witnessed. Apparently an informal power of attorney was also signed at this time. The operation was performed. The complainant was transferred to the Geriatric Team. It is to be noted that the withdrawals of $20,000 and $10,000 took place on 14 and 15 July 1997 just a few days after the operation of 12 July 1997 and when it was anticipated that the complainant would be in hospital and a nursing home for some time. To procure the withdrawal and transfer of $20,000 on 14 July 1997 the appellant signed a Record of Transaction for Advance, that was the activating document. Similarly the appellant signed a withdrawal for National on 15 July 1997 for $10,000. That enabled the transaction to proceed. On the Crown case and according to the complainant, the appellant had no authority to sign documents withdrawing or transferring moneys for the appellant's own purposes. 17 On 4 August 1997 the appellant in order to procure the withdrawal and transfer of $6000, signed a Record of Transaction for Advance. 18 The complainant had a fixed term deposit of about $9000 with National. The appellant said the complainant was very insistent that the term deposit be placed in the appellant's name. The National advised her that the existing authority was not sufficient and that changing over the deposit had to be done by a separate piece of paper. The appellant said that she obtained some Westmead Hospital letterhead. The appellant said that the complainant wrote and signed a document bearing date "8/8/97" in these terms: "I Catherine Van Tongeren want my Term deposit to be cancelt (sic) and put in my Daugher (sic) in Law Cornelia Van Tongeren name". The appellant placed reliance on this asset being put in her name by the complainant. 19 About 8 August 1997 the complainant underwent further procedures in Westmead Hospital. She was subsequently transferred to Nepean Hospital about 12 August 1997. According to the appellant, while the complainant was there a social worker recommended to both of them that a power of attorney and a new will should be prepared and signed. The social worker gave the appellant the names of some solicitors. The appellant contacted Lamrocks, Solicitors. In due course a power of attorney and a will were prepared. The solicitor certified that he explained the effect of the power of attorney before it was executed. The solicitor witnessed the complainant execute the power of attorney and her will. 20 The appellant said that while the complainant was in Nepean Hospital for rehabilitation the complainant said to her "Go and get your new kitchen in. At least I can see where the money's gone". The appellant said that she was spending money on the poker machines at the time the new kitchen was being installed. 21 On 14 October 1997 the complainant was transferred from Nepean Hospital to a nursing home and from there to a second nursing home, Nyora Gardens Nursing Home at Smithfield. She was discharged from that establishment in April 1998. Prior to being discharged, the Director of Nursing told the complainant that the appellant was over $1700 in arrears for nursing home fees. 22 The complainant believed that the appellant was attending to everything including paying the fees of the nursing home. The complainant asked that her bank books be brought and the appellant brought them to her. 23 In the course of examining the bank books the complainant discovered that most of her money had gone. The complainant asked the appellant what she did with the money to which the appellant replied "I put it in the poker machines". 24 The appellant's case was that the complainant, having originally authorised the transactions, had decided to deny having done so because she had discovered that the appellant, as the latter had admitted, had wasted most of the money withdrawn on gambling in poker machines. The appellant attributed this to the unusual and extreme pressure at the time. I have already referred to some of the appellant's evidence as to the circumstances in which the various documents were signed. 25 In cross-examination the appellant agreed that there were three conscious decisions on her part to deliberately deceive two banks. The appellant asserted that she was, in effect, asked to do so by the complainant. The appellant also agreed that the power of attorney did not give her carte blanche to spend all the complainant's money on the poker machines. 26 The appellant, when asked why she had transferred $20,000 out of the complainant's account into her account said at T24 of 2/2/00: "A. My mother-in-law said 'Transfer as much money out as you can' because there was talk of nursing home and at the time there was an entry fee to nursing homes or the government was talking about bringing it in. Q. Why did you stop at twenty? A. Because you could have a certain amount in the bank without it being touched." 27 The cross-examiner then asked a series of questions challenging the appellant's explanations and suggesting that they were incredible. The appellant was unable to be precise about the day on which the complainant gave her the alleged instructions. On her evidence it would seem that it was sometime after the bypass operation on 24 June 1997and before the further operation on 12 July 2000. 28 Later in cross-examination when it was put to the appellant that there was no discussion about her being authorised to do anything with the complainant's money the appellant insisted that there was such a discussion. She also gave this evidence (T35-36 of 2/2/00): "Q. Furthermore, that by virtue of the deceptions, that you obtained a financial advantage at least in respect to your being able to withdraw money out of her account to your account on two occasions. A. Right. Q. Being twenty thousand dollars and six thousand dollars and that certainly occurred before there was any power of attorney. A. Yes. Q. You were also able as a result of those deceptions, to withdraw money, cash? A. Yes. Q What I'm putting to you is this; that you undertook those deceptions and operated the accounts and withdrew money, on your evidence, because she told you to do it? A. That's right. Q. Not because you thought you were legally entitled --- A. No." 29 In re-examination the appellant said that in relation to each of the individual transactions on the complainant's accounts she believed that she had the complainant's authority to do so. 30 Appeal Ground 2 reads: "The verdicts of guilty in relation to counts 2, 6 and 7 are inconsistent with the verdicts of not guilty in relation to counts 1, 3, 4, 5, 8 and 9". 31 The appellant relied upon the surprise expressed upon the return of the guilty verdicts by counsel and the judge. The appellant complained that there had been no cross-examination as to counts 2 and 7 but some of the general cross-examination covered these counts. Further, the thrust of the cross-examination as to count 6 dealing with the withdrawal of $20,000 and the general cross-examination made it clear that there was a real contest as to the big withdrawals, namely that they were unauthorised and used for the appellant's own purposes. They were substantial round sums and appeared quite unrelated to the needs of the complainant. 32 The appellant contended that the prosecution had been brought principally on counts 1 and 5 and that the prosecution really depended on whether counts 1 and 5 were proved. The forms of authority enabling the appellant to operate the bank accounts of the complainant received much attention but the judge made it clear to the jury that they had to consider the counts based on the authorities and also those based on the withdrawals from National and Advance. Each member of the jury had a copy of the indictment and could follow the differences between the counts as the judge pointed them out. 33 The transcript of the final speeches of counsel reveals that the key issue at the trial was whether the appellant had acted dishonestly (T.4 of 3/2/00). The Crown Prosecutor when speaking of "dishonestly" said "the Crown sets out to show or prove to you that at the time of each access of the account and at the times of obtaining the advantage she did not have a belief that she had a legal right to access the account (emphasis added). (T.5.10f of 3/2/00). At T10.30 of 3/2/00 the Crown Prosecutor said: "The Crown perceives that the major issue relates to dishonestly obtaining. Now in other words what the Crown seeks to prove to you beyond reasonable doubt is that the accused did not believe that she had a legal right to access the accounts and withdraw funds from them at those various times" (emphasis added). 34 The Crown Prosecutor drew attention to the different counts and the advantage or money allegedly received in respect of each count; as to counts 1 and 5 this was access to and operation of the accounts; as to counts 6 and 7 the actual transfer of money from the complainant's account to the appellant's account; and as to the other counts - cash withdrawals. 35 At T.8.40-9.27 of 3/2/00 the Crown Prosecutor was critical of the evidence of the appellant that the complainant had authorised the withdrawal of $20,000. 36 At T.10.40 of 3/2/00 the Crown Prosecutor referred to the appellant's assertion that she believed she had a right to draw on the account. He contrasted her evidence with the denial by the complainant of the assertion. He added: "Look at the timing of the alleged verbal giving of the authority, the timing about when it was and where Mrs Tongeren was at the time and also take into account the dates, the amounts of the withdrawal; 14 July 1997 $20,000 transferred out of Mrs Van Tongeren's account and into the account of the accused; 15 July $10,000 cash; and 4 August$6000 transferred out of the Advance Bank account into the accused's Advance Bank account. When you look at the evidence in … … respect of the matter you might consider and wonder (or ponder?) on the basis of the evidence who was the major beneficiary of those transactions. It might seem to be more the accused than Mrs Van Tongeren Senior." 37 At the start of the trial (T,.4-5, 31/1/00) the judge gave the jury the conventional direction that they had to consider each charge separately. She reiterated that point in her summing-up and added that the jury would have to return a separate verdict in relation to each count. 38 While I accept that the two authorities and the circumstances in which they were signed, including the authorisation of the appellant loomed large at the trial they were not the only issues. The three major withdrawals and especially the one for $20,000 were also plainly raised. Those withdrawals in large, round figurers were stark and spoke volumes in themselves. They were far in excess of any amounts which the complainant had authorised the appellant to obtain for her requirements whilst in hospital. They were obviously made for the appellant's own purposes. The appellant's claim that she was authorised to make them was decidedly thin. 39 I agree with the Crown's submission that, in accordance with the judge's directions a correct approach by the jury would be to consider whether in the case of each charge they were satisfied beyond reasonable doubt that the appellant did not believe that she had her mother-in-law's authority. It was clear that the complainant had authorised the appellant to pay certain amounts for her from her pension, for example, fixing her glasses; paying the nursing home. 40 The verdicts of not guilty on counts 3, 4, 8 and 9 cannot be regarded as inconsistent with the verdicts on counts 2, 6 and 7. As earlier mentioned the incidents the subject of counts 3, 4, 8 and 9 occurred after the grant of the power of attorney on 4 September 1997 and in respect of which the Crown Prosecutor virtually conceded that he would have difficulty in securing convictions by saying that the appellant "may have had a legal belief that she could access the funds once she had the power of attorney". 41 The verdicts of guilty on counts 2, 6 and 7 are also not inconsistent with those of not guilty on counts 1 and 5. The jury may not have been satisfied beyond reasonable doubt that the appellant did not believe that she had the complainant's authority to sign the complainant's name to the two authorities thus enabling the appellant to operate the complainant's accounts with National and Advance respectively. The jury may have gone even further and accepted that the complainant herself had authorised the appellant to sign the authorities in the complainant's name so that the appellant could operate the account for legitimate purposes on behalf of the complainant. 42 As the Crown pointed out it is one thing to say that the terms of the complainant's authority, so far as the Bank was concerned, authorised all withdrawals. It is another thing to say that the terms of the complainant's authority, so far as the appellant was concerned, authorised all withdrawals. 43 Appeal Ground 2 fails. 44 Appeal Ground 1 reads: "In all the circumstances of the trial, convictions in relation to counts 2, 6 and 7 represents a miscarriage of justice". 45 The appellant took the Court through the complainant's evidence and the documents which existed and submitted that her evidence was inconsistent with the documents and that the documentary material supported the appellant's case. There are serious questions about the accuracy and reliability of some of the complainant's evidence. Counsel was correctly critical of it. The deficiencies and problems with it probably led to the appellant's acquittal on most of the counts. However, the position as to counts 2, 6 and 7 was different. There the objective evidence in the form of large withdrawals in round figures applied for the appellant's own purposes was cogent. 46 The appellant's submissions fail to distinguish between her having authority to operate the accounts as far as the Banks were concerned and for proper purposes and her lack of authority to make large withdrawls for her own purposes in mid July and early August 1997. The appellant erroneously took a global approach to all counts, lumping them together although, of course, this suited her interests. The Crown had a strong case on counts 2, 6 and 7 and I would have been surprised if there had not been convictions on these counts. 47 There has been no miscarriage of justice on the evidence or in the conduct of the proceedings. It was not suggested that the judge's directions were erroneous. 48 Appeal Ground 1 fails. 49 I propose that the appeal against the three convictions be dismissed. 50 IRELAND AJ: I agree with Smart AJ **************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.