District Court New South Wales Medium Neutral Citation: R v L Schneider & J Pydde [2012] NSWDC 169 Hearing dates: 10/05/12, 11/05/12, 14 - 18/05/12, 05/06/12, 08/06/12, Decision date: 08 June 2012 Jurisdiction: Criminal Before: S Norrish QC DCJ Decision: Verdict - Each accused not guilty Catchwords: CRIMINAL LAW: Judge alone trial, dishonestly obtain a valuable thing, deception, joint criminal enterprise Legislation Cited: Criminal Procedure Act 1986 Crimes Act 1900 Cases Cited: Fleming v The Queen (1998) 197 CLR 250 Category: Principal judgment Parties: Director of Public Prosecutions L Schneider (Offender) J Pydde (Offender) Representation: Mr E Balodis (Crown) Mr I McLachlan (Mr Schneider) Mr C Watson (Mr Pydde) Director of Public Prosecutions Bilias & Associates - Mr Schneider Pope & Spinks - Mr Pydde File Number(s): 2009/8830 2010/232515 Publication restriction: Nil Judgment Introduction 1On 10 May 2012 Lindsay John Schneider and Joachim Gerhard Pydde were arraigned on a charge alleging that they, "Between 1 February 2006 and 1 May 2006 at Coffs Harbour and elsewhere in the State of New South Wales by deception, dishonestly obtained a valuable thing, namely a bank cheque in the sum of $140,000." 2To that charge the two accused pleaded 'not guilty'. 3The charge in the indictment is brought pursuant to s 178BA Crimes Act 1900 (now repealed). 4The elements of the charge brought against each of the accused are that: i) each of the accused by deception, ii) dishonestly obtained for himself, iii) a valuable thing, namely a bank cheque in the sum of $140,000. The Crown case and the meaning of the charge 5In the conduct of the trial there was no dispute as to the basic legal issues or the admissibility of evidence. The prosecution relied upon conduct of each of the accused and representations they made, after 1 May 2006 as evidence relevant to establish either that the deceptions alleged were made and/or the accused acted dishonestly. The deception(s)were allegedly made to Winifred McKercher, who passed the valuable thing, a bank cheque, to Mr Schneider who obtained it in furtherance of ,or as a result of, a joint criminal enterprise with Mr Pydde. 6In opening its case the Crown said that the relevant "deceptions" were: (1)Pydde said he was able to assist Mrs McKercher to obtain finance to enable (them) to buy the property when he first met Mrs McKercher when that was not his intention or that he was reckless as to whether he could do that (2)When Mrs McKercher told Pydde and Schneider on 1 May 2006 at Coffs Harbour how she wanted her money dealt with Pydde and Schneider acted in a way that acknowledged that they understood and would do as she wished when that was not their intention or that they were reckless as to whether they could do that (3)At the same meeting Pydde told Mrs McKercher that the two amounts of $60 000 and $80 000 would be invested at 2% per month when that was not his or Schneider's intention or that they were reckless as to whether they could do that (4)That Pydde and Schneider together represented to Mrs McKercher that a bank cheque for $140 000 was needed rather than two for separate amounts making up $140 000. 7The deception(s) employed were representations by word or conduct on or before 1 May 2006. The deceptions were either intentional or reckless. The meaning of the charge 8The prosecution sought to prove that either the accused practised deception(s) that caused her, or induced in the mind of Mrs McKercher an intention, to pass the valuable thing. A "deception", whether deliberate or reckless, may be words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception, or of any other person. Here there was no issue that the matters alleged were not relevant 'deceptions'. 9As to the issue of "dishonesty", whether a person is acting dishonestly at any given time depends upon his or her state of mind. It is the actual state of mind of the accused person at the time of the alleged "obtaining", which is in question, when an allegation is made that a person acted dishonestly. I am required to decide whether the accused were relevantly acting dishonestly at the given time by applying the ordinary standards of what is regarded as "dishonest" by ordinary decent members of our community. 10The Crown alleges that the deceptions were evidence of dishonesty, obtaining a bank cheque that they were not entitled, or which they would not have obtained had the deceptions alleged had not been practised. 11As earlier indicated the Crown alleges either intentional or "reckless" deception. The prosecution alleges either recklessly or intentionally the accused, in pursuit or furtherance of the joint criminal enterprise, used such words or conduct that might induce Mrs McKercher to part with the "valuable thing" that was handed over. As to recklessness the prosecution must prove that the accused were reckless as to the effect on the mind of the deceived person (of the deceptions) in that the accused knew that the relevant words or conduct might induce Mrs McKercher to part with the valuable thing. A bank cheque is a 'valuable thing'. Joint Criminal Enterprise 12When two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. 13A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime is committed. 14The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. 15If the agreed crime is committed by one or other of the parties to that joint criminal enterprise, or if all played some part in committing that crime, all parties are equally guilty of the crime regardless of the part played by each in its commission. 16The critical issue in the case was whether the accused at the relevant time of the obtaining of the valuable thing acted "dishonestly" in that, in pursuit of a joint criminal enterprise, deliberately or recklessly, by words and/or conduct, they practised deception(s) upon Winifred McKercher, so that one or other or both of them could obtain the "valuable thing", to wit the subject cheque for $140,000. Onus and standard of proof of guilt 17The prosecution bears the burden of proving the guilt of the accused. That burden or onus rests with the prosecution throughout the trial in respect of matters regarding proof by the prosecution. The accused bears no onus of proof. The accused is presumed to be innocent until such time as the prosecution can prove his guilt. 18The prosecution must prove each and all essential ingredients of a relevant charge for consideration 'beyond reasonable doubt'. Those words are to be given their ordinary, everyday meaning. The accused bears no onus in relation to any matters requiring proof by the prosecution. If any reasonable doubt exists in relation to matters which the prosecution must prove, then I must acquit the accused. In this matter neither accused gave evidence. They were under no obligation to give evidence, or prove anything. No inference of guilt can be drawn from their silence. Trial by judge alone 19The trial is a trial by judge alone in accordance with the provisions of the Criminal Procedure Act (see s 132, 133 Criminal Procedure Act 1986). The election was made by the accused, consented to by the prosecution, before the date for trial. A trial by judge alone in accordance with the relevant provisions of s 132, 133 Criminal Procedure Act 1986 requires the trial judge not just to state bare principles of law that are applied and findings of fact that are made, but also to expose the "reasoning process" justifying the findings of fact and ultimately the verdict. 20All principles of law which are relevant and required to be applied and considered should be identified in the judgment, including any necessary warnings that the trial judge is required to apply in the assessment of the evidence. Where particular warnings are applied a judge must state why, if appropriate and applicable and notwithstanding the appropriate warnings or the consequences of it, a particular verdict has been reached (Fleming v The Queen (1998) 197 CLR 250 (at 261-264)). 21The case against each accused must be considered by me separately. I am required to return a separate verdict in respect of each individual accused, subject to consideration of the issue of joint criminal enterprise. Inferences 22The Crown case for "dishonesty" and "joint criminal enterprise" is largely based upon inferences that it invites the Court to draw from what it submits are the relevant deceptions, the conduct of each of the accused up to 1 May 2006, and representations and conduct subsequently. 23I am entitled to draw inferences from facts that I decide are established by the evidence. 24An inference is a conclusion or conclusions drawn from the existence of a combination of facts. 25I must not draw an inference unless it is a reasonable inference that can be rationally drawn from the evidence that I accept. 26In a criminal trial one must be careful about drawing inferences. Especially where the inference is about guilt of the existence of an element of the offence. When drawing inferences about guilt or the existence of an element, that is an inference or conclusion adverse to the accused, I must not draw that inference unless it is the only reasonable inference that can be drawn beyond reasonable doubt. 27There may be a number of inferences that can be reasonably drawn, some adverse to the accused and some not adverse to the accused (ie: inconsistent with guilt or the existence of an element). In such a situation one must not draw the inference adverse unless you are satisfied of two things: 28I am to be satisfied beyond a reasonable doubt that all inferences favourable to the accused can be excluded; and the only inference that can be drawn beyond a reasonable doubt is the one, or ones, adverse to the accused. 29So long as there remains an inference reasonably open that is favourable to the accused (that cannot be excluded beyond a reasonable doubt) I cannot find the element not made out and find the accused not guilty. 30I am are only entitled to find the accused guilty or the element made out if and only if you are satisfied beyond reasonable doubt that the only inference(s) to be drawn are those adverse to the accused and that all inferences inconsistent with guilt of the existence of the element can be excluded, beyond a reasonable doubt. General background of the charge from the evidence 31In early 2006 Winifred McKercher, lived in suburban Brisbane. She was a widow, approximately 80 years of age who owned her own accommodation. Her daughter, Christine Jennifer Wheeler ("the daughter"), was a pensioner who was desirous of buying a property on the mid north coast where she could live with her mother, running various businesses including agistment and training of horses, selling primary produce available form the property and other related activities. Christine Wheeler's son, Jonathan Wheeler, "the grandson" lived in the Brisbane area as well and until approximately 13 May 2006 was in employment. 32During the early part of 2006 Christine Wheeler found a property at the hamlet of Missabotti, between Bowraville and Bellingen, on the mid New South Wales north coast which suited her needs. She did not have any assets, and her only income was from her pension. She suffered some disabilities from a motor vehicle accident some years before. She needed her mother's financial assistance to purchase the property. Her mother's financial assistance extended to her providing a proportion of the proceeds of any sale of her residence in Brisbane. Mrs McKercher herself was a pensioner and apparently had no other sources of income. In order to purchase the property, the property was to be purchased by the grandson who could make some contribution through a 'first home buyers' grant of $7,000. He would have to take a mortgage in order to make up the balance of the purchase monies. When the property was purchased Ms Wheeler and Mrs McKercher were to live on the property and were to meet such mortgage payments, as they were required to pay. They could not purchase the property in their names otherwise they would prejudice their pension rights. The grandson was merely a conduit for their aspiration. 33Mr Pydde was known to Ms Wheeler as a "finance broker". He, Ms Wheeler and Mrs McKercher at various times, inspected the property in February, March and/or April 2006. Mrs McKercher placed her property in Brisbane on the market in about February and eventually sold it, settling on 27/28 April 2006, receiving approximately the sum of $188,500 as proceeds of the sale, which she deposited in her 'Suncorp Bank' account. 34At about that time Mr Schneider, for the first time, was introduced to Ms Wheeler and Mrs McKercher. On 1 May 2006, Mrs McKercher, Ms Wheeler and the two accused attended upon the Real Estate agent acting for the vendor, "Ros" Gaul, who was the Manager of a Real Estate agency at Bowraville (Kanda Real Estate). By this time, or at this time, the vendors agreed upon the sale of the property for the sum of $570,000. The sale price on the 'Contract for Sale' for the property was $725,000. The 'purchaser' was also paying for "chattels, stock" and other incidentals, valued by the vendors at $36,850. 35On the same day, after a meeting with Ms Gaul, Ms Wheeler, Mrs McKercher and the two accused travelled to Coffs Harbour and met at a coffee shop in the commercial centre of Coffs Harbour. Ms McKercher and Mr Schneider attended upon the Suncorp Bank branch at Coffs Harbour and three cheques were drawn from Mrs McKercher's account, from the proceeds of the sale of her former home in Brisbane. One cheque was for $80,000 payable to "Snow Line Pty Ltd" ("Snow Line"), a corporation associated with Mr Schneider. A second cheque was drawn in the sum of $60,000 payable to "Jonathan Wheeler" and a third cheque was drawn in the sum of $30,000 payable to "Kanda Real Estate Trust Account", as "deposit" on the purchase of the Missabotti property. The cheque payable to "Jonathan Wheeler" was representative of a wish to put $60,000 "in trust" for the grandson. No "trust" existed at that time. Mr Schneider and Mrs McKercher returned to the coffee lounge where her daughter and Mr Pydde were present and after a discussion Mrs McKercher returned to the Suncorp Bank with Mr Schneider, cancelled the three cheques, and authorised the drawing of two further cheques. One cheque was for $30,000 payable to "Kanda Real Estate Trust Account", the second was a cheque for $140,000 payable to "Ramsden Faes Solicitors Trust Account" in the sum of $140,000. Ramsden Faes were a firm of solicitors in Queensland, who acted for Mr Schneider and Snow Line. 36The prosecution relied upon representations and conduct of Pydde and Schneider to prove the relevant deceptions identified in its opening.. 37Mr Schneider deposited the cheque for $140,000 in the trust account of his solicitors on 2 May 2006. He and Mr Pydde took the cheque for $30,000 back to Bowraville to give to the agent on 1 May 2006. 38Contracts were exchanged approximately a month later on the Missabotti property. However the purchase of the property was not settled. Mrs McKercher (and Ms Wheeler) received some payment of "interest" to her (up to $12,900, including $4,300 paid to Ms Wheeler), but not with the regularity or in the amounts Mrs McKercher understood were due. She continued to have contact with Mr Schneider throughout the rest of the year in various ways, however, the $140,000 was never repaid to her notwithstanding demands made by her for the return of the money. The Crown case was in essence that at the time that the bank cheque for $140,000 was handed over by Mrs McKercher to Mr Schneider, neither he nor Mr Pydde had any intention of investing the money as understood or requested by Mrs McKercher and/or honouring any purported agreement that existed between them as to the use to be made by Mr Schneider of Mrs McKercher's money contained within the "valuable thing", or were reckless as to the truth of those representations, and the effect of agreements made as to the subsequent treatment of Mrs McKercher's money contained in the "valuable thing". The course of the evidence 39The prosecution called Mrs McKercher, Ms Wheeler and Jonathan Wheeler to give evidence as to matters relating to relevant events concerning the sale of Mrs McKercher's property, the attempted purchase of the Missabotti property, the drawing of the cheques at Coffs Harbour on 1 May, the agreement as to the use to be made of the cheques and subsequent and related events. The prosecution also called evidence from the real estate agent, Ros Gaul, Andrew Jantke, a solicitor who acted for Jonathan Wheeler on the purchase of the Missabotti property and Milne Jurisich, a person apparently known to Mr Pydde, but who was approached by Ms Wheeler and Mrs McKercher in about July 2006, concerning the "investment" of the sum of $140,000. 40The 'Officer in Charge' of the investigation, Detective Rutledge, also gave evidence, and various documents, contemporaneous to various transactions and events were exhibited, as were statements from John Woudwyk, a solicitor in Queensland who acted for the vendors of a property which Snow Line Pty Ltd contracted to purchase from the vendors on 14 March 2006 and Shanan Ramsden, Managing Partner of Ramsden Bow Lawyers, which previously traded as Ramsden Faes Lawyers, in Broadbeach, Queensland. His statement referred to his contact with the accused Schneider who he understood was the "controller or manager" of Snow Line Pty Ltd on the purchase of a property contracted to be purchased by the corporation and gave details of the receipt and disbursal of funds from the "valuable thing" the subject of the indictment. There was some other evidence to establish the character of the signature of Mr Schneider. 41Neither accused gave or called evidence. No inference can be drawn adverse to the accused from their election not to give evidence, nor can their silence be used to fill "gaps" that may be perceived to exist in the prosecution case, if any. Mr Schneider, at the time of the alleged commission of the offence, had no prior criminal convictions. I take this matter into account as "limited" evidence of good character relevant to the issue of the likelihood of him acting dishonestly and deceptively as alleged by the Crown. 42There was a great deal of evidence of events leading up to 1 May that is not in dispute given the character of the documentary exhibits and the oral evidence, and the absence of evidence from the accused. The primary evidence of events leading up to 1 May comes from Mrs McKercher, with some related evidence from Ms Wheeler, and also from Ms Ros Gaul, the Real Estate Agent, whose evidence of events on 1 May is of particular importance. The Crown in its helpful written submission in closing, summarises evidence (putting aside particular submissions) which discloses the relationship of Mr Pydde with the early inspections of the property, the circumstances of Mr Schneider to meet Mrs McKercher and related matters. There is no controversy as to that outline so far as it restates the detail of the evidence not in dispute. 43There is no doubt that Mr Pydde was introduced to Mrs McKercher as the person who was going to "arrange the mortgage monies" or with some kind of "finance advisor or broker". 44So far as the negotiations that critically occurred on 1 May 2006 Mrs McKercher and Ms Gaul provide the most direct evidence, as Ms Wheeler for various reasons claims not to be a party to conversations occurring between her mother, Ms Gaul and Mr Pydde at Bowraville and Coffs Harbour on 1 May 2006. As is pointed out in the submissions Ms Wheeler is contradicted by Ms Gaul in relation to representations Ms Wheeler made concerning the financing of the property. 45It is clear from the evidence of Mrs McKercher that she was anxious to assist her daughter to place a roof over her head, and otherwise, at some time in the future, provide for her grandson. Commensurate with this she put her property that she occupied in the Brisbane area on the market about February and that sale was completed, for which she ultimately received $188,500 (approximately). This money was deposited in her Suncorp Banking account on or about 28 April 2006. Mr Pydde had, at best, a very limited role in that transaction, probably no role at all. Mrs McKercher was a pensioner, as was her daughter. Neither had any notable source of income other than their pensions before 27 April 2006. 46There is no doubt the evidence of Mrs McKercher establishes that she first met Mr Schneider, in company with Mr Pydde on 27 April 2006 as she was preparing to go back to Bowraville with her daughter. The evidence of Mrs McKercher establishes that there was agreement to meet at Bowraville on 1 May 2006. Whilst Ms Wheeler claimed that she had already made an offer to the owners of the Missabotti property before the meeting at Bowraville on 1 May, the evidence satisfies me that the finalisation of any offer did not occur until the meeting at the offices of Ms Gaul, the real estate Agent, either in the late morning or the early afternoon of 1 May 2006. 47Mrs McKercher said that when they met at Ms Gaul's office, she was told that Mr Schneider to keep Mr Pydde "company". Mr Schneider was accompanied by his daughter. Mrs McKercher denies knowledge of Mr Schneider's reasons for being present. 48Mrs McKercher in her evidence claimed not to know the details of the conversations at the real estate agent in relation to the agreement as to the purchase price. Ms Wheeler claimed to have missed relevant parts of it by not being present. Both of these versions of what happened are contradicted by Ms Gaul, particularly given Ms Wheeler's claim of having previously made an offer to the vendors and given Mrs McKercher's obvious keen interest in the transaction. Ms Gaul's evidence on the meeting of 1 May I prefer where it is in conflict with Ms Wheeler and/or Mrs McKercher. This is so because of her independent and better, recollection of detail and her involvement in discussions. She said that the property at Missabotti was on offer for $590,000, Mrs McKercher or Ms Wheeler made an offer (on behalf of the nominal purchaser Jonathan) for $570,000 and that the vendors ultimately accepted this offer. An offer was made, or agreement was reached, that in addition $36,850 would be paid for a range of chattels (furniture etc), stock (a small number of steers) and other items that need not be detailed at this point, but which were disclosed to the purchasers by the vendor's solicitor. These details were conveyed with a 'Notice of Sale' from the Agent to the vendors' solicitor. The vendors agreed to that offer, at least by that meeting. However, there were discussions at the office about the issue of financing the purchase. The precise detail of the discussions that occurred at the Bowraville office is not possible to discern, even from the evidence of Mrs McKercher and Ms Gaul. But as the Crown has submitted, I accept that it was Mr Pydde that suggested that the sale price on the Contract be for $725,000, on condition that the agent hold "in escrow", so to speak, a cheque for $118.150, drawn on "Snow Line's" account, being the difference between $725,000 and $606,850, the real purchase price. He suggested that the vendors would, in effect, give the purchaser a nominal "rebate" in the sum of $118,150 for the purchase price. Although Ms Gaul did not understand the arrangement, she accepted on behalf of the vendors with the suggestion, again from Mr Pydde, that only $30,000 be provided by the purchasers for the deposit, although the contract for sale ultimately would provide for a 10% deposit to be paid. In fact, subsequently when demands were made by the vendors' solicitors, one demand requiring completion by the purchasers was for the payment of the balance of the deposit. 49The evidence of Ms Gaul is that Mrs McKercher and Ms Wheeler appeared to agree with Mr Pydde's suggestions. There is no evidence that Mr Pydde did not know that the cheque, drawn on the Snow Line Pty Ltd account at the "Heritage Building Society" could not be met, other than the fact that banking records show that if presented on 1 May there were insufficient funds in the account. Mr Pydde told the agent not to bank the cheque at that time and only on instruction, which ultimately the agent did not do. Mrs McKercher and Ms Wheeler's claims of ignorance of the arrangements agreed upon in their presence and with their agreement were entirely unconvincing. 50Christine Wheeler told Ms Gaul that there was to be, seemingly in the context of the reasons for the increased purchase price, a need for "one mortgage to cover the business plan". She indicated to Ms Gaul that this would mean a "better interest rate" if everything was "bundled together". Ms Gaul gave evidence that at relevant times the various parties were talking together and communicating. Although I regard Ms Wheeler as an unimpressive, unreliable witness, one thing that she was adamant about was that she did have a "business plan" for the property, which involved developing its commercial potential one way or another. Of this I have no doubt as it is supported by Ms Gaul's recollection. 51The evidence of Mrs McKercher reveals that she was no stranger to legal transactions and conveyancing, albeit that her experience was in Tasmania. She had worked for at least 15 years, in a working life of 43 years, as a private secretary to a solicitor who did conveyancing in Tasmania. She obviously had knowledge of the operation of trust accounts. She agreed in cross examination that loans etc ordinarily would be documented, but she said that she subsequently handed over the $140,000 without any documentation. 52After the negotiations through the agent were completed, and it had been agreed that the purchase price would be $725,000, Mrs McKercher and Ms Wheeler went to Coffs Harbour. The purpose was to go to the nearest Suncorp Bank branch. There they met the accused at the "Gloria Jeans" coffee shop, not far from where a number of bank branches were located, including the Suncorp Bank. Mrs McKercher's evidence is that she was involved in discussions with Mr Pydde, again which Ms Wheeler claimed she was not involved in, as she was discussing matters relating to horses with Mr Schneider. 53The product of these various discussions which, by reference to the bank records, took more than an hour, can be established upon the most direct evidence being the banking records and the cheques drawn and the hand written note made by Mr Pydde, either before or during this meeting. This is Exhibit B in the trial. The relevant banking records are Exhibit C & D. Exhibit B confirms Mrs McKercher's assertion that she had a plan ultimately to provide $60,000 for Jonathan's trust account, $80,000 for payment to Snow Line Pty Ltd, at least in the short term, and $30,000 for the deposit required on the Missabotti property. As the Crown has conceded, the surrounding circumstances demonstrate that Exhibit B was most probably created during the course of the meeting. Certainly in its terms it contains information that must have come from Mrs McKercher by and large, with details of monies paid to settle Jonathan's debt to "GE" the finance company the settlement monies from her previous sale, and reference to Jonathan's "trust account". 54Exhibit B, however, in its terms does indicate calculations, whatever be the ultimate destination of the total $140,000 including the $60,000 for "Jonathan's Trust fund", that show that the sum was to be invested for Mrs McKercher to receive interest payments as disclosed in the document. No trust fund or account existed for Jonathan at the time. Mr Pydde had already organised the payment of $3,300 to GE, to enable Jonathan to borrow the money that was necessary to purchase the Missabotti property. 55The evidence of Mrs McKercher contains a number of conflicts or variations upon her purposes as at 1 May. It also establishes that she voluntarily, by reason of requests made to her by Mr Pydde, made two visits to the Suncorp Bank, firstly to draw three cheques, one payable in sum of $30,000 to Kanda Real Estate Trust Account, $80,000 to "Snow Line Pty Ltd", the company connected to Mr Schneider and in the view of his own solicitor, managed by him as of that date, and $60,000 payable to "Jonathan Wheeler". 56Mrs McKercher says that Mr Schneider took two of the cheques away once they were returned to Mr Pydde to "bank them", returning sometime later to say that it would take three or five days to clear the cheques. Whatever be the details of the conversation, Mrs McKercher voluntarily went back to the bank to redraw all the cheques, including $30,000 for the vendor's agent's trust account, with a cheque for $140,000 payable to "Ramsden Faes Solicitors". This second event, on the evidence available to this Court, occurred approximately an hour after the first cheques were drawn. Ramsden Faes were solicitors of Mr Schneider, acting on behalf of Snow Line Pty Ltd on a purchase of properties at "Norman Park", with a combined value of $1,250,000. Mr Schneider first gave instructions to his solicitors in relation to this purchase on behalf of that company in February 2006 and contracts were exchanged on 14 March 2006. 57Subsequently the cheque for $140,000 was deposited in the trust account of Mr Schneider's solicitors on 2 May 2006. The proceeds from that cheque were dispersed, most probably on the instructions from Mr Schneider, in the following ways: i) $33,769 to the solicitors for the vendor, Woudwyk Solicitors, in consideration for extension of the settlement date of the contract (according to the vendors' solicitors). ii) $50,000 to the bank account of Snow Line Pty Ltd on 8 May 2006. iii) $49,000 to the account of Snow Line Pty Ltd on 11 May 2006, iv) $3,000 to the account of Snow Line Pty Ltd on 17 May 2006, v) and towards "costs and disbursements on the conveyance". 58A 'flow chart' of the dispersal of the funds beyond these deposits show payments by either cash withdrawals, transfer, or payments to various third parties, including a 'bloodstock' company, "Nanette Schneider" and "Bayloco Holdings Pty Ltd". These various transactions were completed by and large by 19 May 2006. There is little evidence about these third parties, although Mrs Schneider is clearly connected to the accused Schneider. 59This conveyance was terminated on 28 June 2006 by the vendors when the purchaser (Snow Line) failed to complete. The purchasers forfeited the sums paid, which apparently included the $33,769 and a deposit on the two transactions, in each property, $1,000. 60Mrs McKercher confronted with the bare facts of what the bank documentation revealed asserted that her reasons for acting the way she did may have been explained by her medication, which she had been taking throughout the year and beyond 1 May. This medication was "Coversyl". There is little evidence apart from what Mrs McKercher asserts, about the effect of the medication. She said she had not been told about "Snow Line" and also that she was "not aware of what she was doing because of her medication", she said in her evidence that she had been this way throughout the early part of 2006 and beyond 1 May 2006 and that it was only some months after 1 May 2006 that her daughter brought to her attention that she was affected by the medication. As the Crown concedes, Mrs McKercher gave conflicting evidence as to her understanding of the purpose of the cheque for $140,000, agreeing at one point that it was to be 'lent' to Snow Line to pay a high interest rate to meet the interest rate for any mortgage, then immediately denying the proposition. 61After the meeting on 1 May Mr Pydde and Mr Schneider took the cheque for $30,000 to the agent for deposit in the agents trust account. Mrs McKercher, whose evidence is absolutely critical to the issue of whether there were deceptions practised by Mr Pydde, in furtherance of the joint criminal enterprise, gave varying evidence about her knowledge of "Snow Line". 62The evidence establishes that the preparations for the exchange of contracts for the purchase continued, with the exchange occurring on 1 June 2006. The Contract for Sale is Exhibit G. Jonathan Wheeler, as the purchaser, attended upon the solicitors acting for him before the exchange at the offices of Stacks Lawyers at Macksville. The solicitor acting for the purchaser was Andrew Jantke, an employed solicitor with Stacks. He was inexperienced in conveyancing. He met with Jonathan and Mrs McKercher and Ms Wheeler the day before exchange. He gave evidence that there was a "question mark" about whether there was sufficient funds with no finance in place at the time of exchange. In fact, Jonathan Wheeler gave evidence that on 13 May 2006 he lost the employment that he had held as at 1 May 2006. There is evidence that Mr Pydde was upset when found out after the event, probably later in May, that he had lost employment as it would jeopardise arrangements for finance and that he would try and "fix" the situation. Ultimately, this led to Jonathan going to a mortgage broker, or representative of a prospective mortgagee, to swear a false declaration as to his financial circumstances. He, at about this time, signed a blank mortgage document, the mortgagee being described as "Permanent Mortgages Pty Ltd" (also known as La Trobe Home Loans of Australia). 63The evidence is a little unclear as to whether this was organised by Mr Schneider, or by Mr Schneider with assistance from Mr Pydde. Prior to exchange an offer was made by "Southland Securities Pty Ltd", on 31 May 2006 the date the corporation was registered, offering Jonathan Wheeler the amount of $525,000 at 7.2% for twelve months to purchase the property. This corporation was related to Mr Schneider. Mr Jantke had Jonathan sign an acknowledgement that as at 31 May 2006 he had been advised that the rebate of $118,150 was "irregular" and that he "indemnify" "Stacks Nambucca" (sic) against any liability arising from litigation in relation to that sum. Mrs McKercher was present at that conference on that date. Mr Jantke gave evidence about his concern at the irregular rebate and was adamant that Ms Wheeler that she had advice from another lawyer in Sydney (a "QC" or some such person) that it was proper. Ms Wheeler denied she made this assertion. The evidence of Mr Jantke underlines that Ms Wheeler was very adamant that the purchase should go ahead, whatever be the risks and notwithstanding his advice about an "irregularity" in the contract, ie the rebate. 64Contracts were exchanged on 1 June 2006. However, a 'notice to complete' was issued by the vendors' solicitors dated 19 June 2006, when the date for completion on the contract of 16 June 2006 was not met. 65The contract required payment of the balance of the deposit ($42,500) on completion or on termination of the contract for failing to complete. The contract, falsely as the evidence reveals, identified the purchase price as "apportioned" as "$100,000 for Plant and Equipment and Improvements" and "$625,000 for land and buildings". There can be no doubt that Mrs McKercher was aware of the terms of the contract, as was Jonathan Wheeler. 66On 7 June 2006 Mrs McKercher wrote to Mr Pydde (Exhibit E) after failing to get interest payments as promised of "$2,800 due and owing as at 1 June 2006" on "$60,000 which (was) part of $140,000 drawn from my Suncorp account". Noting other matters she demanded "the return of the $60,000 drawn in favour of Jonathan Victor Wheeler" ... "personally" ... "within 12 hours". This letter is said to be an important piece of evidence reflecting her state of mind as at 1 May, being representations made by her when relevant events were "fresh in the memory". Clearly this is so, serving a hearsay purpose. 67She went on to state in the letter that the "payment of $2,800 interest money to be handed to Jonathan". She also requested the documents relating to the sale of her Queensland property be forwarded to the vendors' real estate agent. Mrs McKercher said in evidence that Mr Pydde did not contact her again after that letter. 68In the meantime mortgage negotiations were still on foot because, as at 28 June 2006, "La Trobe Home Loans" through its solicitors "Mountfords", on the Sunshine Coast Queensland, notified the terms of the then loan application made by Jonathan Wheeler. Mr Jantke organised Mr Wheeler to swear a statutory declaration as to the purchase on 30 June 2006, as did Mrs McKercher on the same date. They both swore these documents in the presence of Mr Jantke. They both swore that there were sufficient funds to purchase the Missabotti property. This was not correct, at the very least. A draft statutory declaration was prepared to this effect by Christine Wheeler, but not signed by her. 69On that date a demand was made by Mr Jantke to Mr Schneider (spelt 'Snyder' in the letter), requesting him to release the sum of $80,000. The money was not released. In fact Mrs McKercher gave evidence that although this was a request of Mr Jantke, she after meeting with Mr Jantke rang Mr Schneider, telling him NOT to release the funds. 70The vendors' solicitors notified on 3 July 2006 an extension of the settlement date up to 25 July 2006, but only on payment of the balance of the deposit monies and the immediate release to the vendors of all deposit monies already paid. Notice of termination of the contract was given to the purchasers' solicitors by letter dated 6 July 2006. 71On 4 July 2006 under the letterhead of "Snow Line Pty Ltd", a letter was sent to Mr Jantke, signed purportedly on behalf of Mr Schneider, confirming that the company "holds $80,000 invested which will be available to assist in the purchase of the abovementioned transaction" ... "Accordingly, steps will be taken for the balance of the funds (to be released) as soon as possible". There were no such funds in the bank records available to the Court. The purchase of Missabotti "fell over" and I understand litigation ensued. From this time Mrs McKercher, her daughter and grandson, had no contact with Mr Pydde but continued contact with Mr Schneider. The detail particularly of Mrs McKercher's contact with Mr Schneider is set out in the Crown's closing submission and, putting aside comments, the bare chronology is not in dispute. 72There was evidence from Jonathan of meeting a Gold Coast finance broker called Michael Houlahan, who did not give evidence, but his evidence was said to neither help the Crown nor the defence. Jonathan admitted filling in documents that were false at that time as to his personal circumstances to secure lending. 73The evidence establishes that in total $12,900 was paid by Mr Schneider either to Mrs McKercher, or her daughter (who received $4,300, some date after 1 May 2006, but from a source that is not identified with precision). Mrs McKercher received two payments of $2,800 and one payment of $2,000 as "interest" on the monies she had provided to Snow Line, or Schneider. She received another $1,000 in December 2006. 74Evidence was also given by a person known to Mr Pydde called Milne Jurisich, described as a "property developer and financier". He met Mr Schneider through Mr Pydde and came to know Christine Wheeler, through whom he met Mrs McKercher. He had an office situated at Labrador, on the Gold Coast. In June or July 2006 he met Mrs McKercher and Ms Wheeler to discuss matters, as I understood, it relating to the whereabouts of Mr Pydde and related matters. Mr Jurisich later contacted Mr Pydde on his mobile phone and told him that he had spoken to Ms Wheeler and her mother. The accused Pydde said "Why have you been talking to her? What did you want to talk to her for?" He replied "I will speak to anyone I want and for your information she came to my office because she could not find you and Schneider". He went on to say to Mr Pydde "So why don't you call her and clean up your own mess. She doesn't need to speak to me". Pydde said "What she going on about; she got some of the money as well". He believed this conversation was approximately a month after he had spoken with Ms Wheeler and Mrs McKercher at his office. This conversation the Crown relies upon as an "admission" of matters relating to the course of the events after 1 May 2006. 75At sometime later in the year, after Mrs McKercher had leased premises in Brisbane, she found another place she wished to purchase at a location described as "Edens Landing". Mr Schneider wrote out a document (Exhibit F23) which was a hand written proposal for "his company" to buy a property, sell it on to Jonathan for an inflated price, but for Jonathan to be given a discount when he purchased it. In the mean time she was to move in and rent it before the purchase was completed. She said that it was at this time that she was told by Lindsay Schneider about a company called "Yen Elad". This was the first she heard of this corporation and she thought it was an overseas company and that it meant that her investment was "offshore". ASIC records show that Mr Schneider was a director and secretary of that corporation (Yen Aled Pty Ltd) as at 18 August 2006, the corporation having been registered on 18 August 2006 and deregistered on 25 January 2009. Those records show also that the accused Schneider was a director and secretary of Snow Line Pty Ltd as at 29 September 2006. Snow Line was first registered on 17 November 2005 and was deregistered on 29 March 2008. Mr Schneider was also a director of "Southland Securities Pty Ltd" as at 11 July 2006, the company being first registered on 31 May 2006. 76Mrs McKercher said that on 15 September 2006 Mr Schneider brought two documents, one for her one for Jonathan, to sign which were purportedly "loan contracts", providing for each of them to loan sums of money to Snow Line Pty Ltd. The document she purportedly sign and the document her grandson signed at the same time, were for respective loans of $80,000 and $60,000 to Snow Line Pty Ltd. Their signatures were purportedly dated 1 May 2006, but the "offer" of the loans was not accepted until 15 September 2006, by Mr Schneider on behalf of Snow Line Pty Ltd with no fixing of the company seal. Mrs McKercher, who may be said in many respects to be a more reliable witness than her grandson on dates, was adamant that the document which she signed was not produced at Coffs Harbour on 1 May 2006 and not signed by her on that date. She said it was in fact "backdated" on 15 September 2006. Mr Wheeler is of no assistance in relation to this matter, beyond the fact that he cannot confirm what Mrs McKercher states as to dates and related details. 77Subsequently Mrs McKercher sought legal advice in November 2009 about the Missabotti purchase and particularly Mr Jantke's conduct, although apparently no advice in relation to matters relating to her "investment" and payment of interest. On 15 December 2006 Mrs McKercher received the last payment of "interest", the sum of $1,000 from Mr Schneider. On 19 December 2006 she had her last direct contact with Mr Schneider, when he rang her to tell her that "Yen Aled" had lost money and that the corporation needed money for solicitors fees. It was during this conversation that Mr Schneider claimed that he too had lost money. 78Mrs McKercher wrote a letter of demand to Mr Schneider on 10 January 2007 requesting Snow Line Pty Ltd repay "$144,600" being "principal and interest owing as at 31 January 2007". She received a letter on 28 January 2007 from Mr Schneider, without a postmark, stating that he was in Vietnam and that his father was gravely ill. She never heard from him again and never received any further interest payments nor any of the principal of $140,000. She never received any documents showing any account for the moneys passed to Mr Schneider on 1 May nor any reconciliation records. She went to police shortly afterwards in March 2007. Submissions 79The prosecution provided extensive written submissions, supplementing them with essentially 10 "points". The Crown case closed in the following terms: "1) The Crown alleges that Mrs McKercher gave a bank cheque to Schneider because of his and Pydde's deception. 2) The accused pursuant to a joint criminal enterprise obtained the cheque for $140 000 from Mrs McKercher by deception and dishonestly. 3) The deception that they employed was the representations by word and conduct on or before 1 May 2006. The Crown relies alleges the deception was intentional or alternatively reckless. The deceptions were: Pydde said he was able to assist Mrs McKercher to obtain finance to enable them to buy the property when he first met Mrs McKercher when that was not his intention or that he was reckless as to whether he could do that. When Mrs McKercher told Pydde and Schneider on 1 May 2006 at Coffs Harbour how she wanted her money dealt with Pydde and Schneider acted in a way that acknowledged that they understood and would do as she wished when that was not their intention or that they were reckless as to whether they could do that. At the same meeting Pydde told Mrs McKercher that the two amounts of $60,000 and $80,000 would be invested at 2% per month when that was not his or Schneider's intention or that they were reckless as to whether they could do that. That Pydde and Schneider together represented to Mrs McKercher that a bank cheque for $140,000 was needed rather than two for separate amounts making up $140,000". 80The Crown's submissions then seek to chronologically trace various transactions with detail from the evidence which is largely uncontroversial up until at least 1 May 2006. 81The Crown supplements the recitation of the facts by some of the following observations. It submits that Mr Pydde told Ros Gaul that "the finances were OK" in circumstances where "they could not have been", submitting that this was "a method of getting the sale to progress to a point where funds could be obtained from Mrs McKercher". 82The Crown also relies upon a 'representation' by Mr Pydde that Ros Gaul gave evidence about that Pydde had told her office on 1 May that he was going to invest "the rest of her money" other than the deposit of $30,000, stating that "(This) is as close to an admission of what was intended by Pydde as there is in this case". 83The Crown further submitted that the increase of $118,150 of the purchase "may have been a method to make sure the contract for sale fell over to ensure that the $140,000 was not needed on settlement". It submits that the increase of the purchase price "to allow the business to start up" was not consistent with allowing the purchase price to be borrowed, rather than 85% of the original purchase price. 84The Crown in its submissions does not place much weight on Christine Wheeler's evidence, although seeks to resurrect her credibility by saying that her versions of her involvement in the discussions as to this extra amount may be "wholly inconsistent" with Gaul's on the issue and that the conflict with Jantke about getting counsel's opinion suggests that "Jantke may not have accurate on this issue". 85The Crown further submits that Mr Pydde telling Gaul not to bank the cheque from Snow Line Pty Ltd for $118,150, shows that Pydde knew Snow Line to have been unable to pay the amount on the cheque. 86The Crown submits that Mrs McKercher did not understand how the amount of $725,000 was agreed, however, concedes that Jonathan Wheeler implies that Mrs McKercher did know and that Christine Wheeler may have known more than she was prepared to admit in her evidence. 87With regard to the events at Coffs Harbour, the Crown concedes that Exhibit B (or F4) might reasonably have been written at the table, although Mrs McKercher's evidence is in conflict with her statement on this matter, as the Crown concedes. 88The Crown reiterated the evidence of Mrs McKercher as to what occurred at the meeting at Coffs Harbour, including the assertion by Mrs McKercher that she had no knowledge "Snow Line", or what connection Mr Schneider had with arranging finance for the property purchase. 89It relied upon the evidence of Mrs McKercher that the claim that the cheque for $140,000 was to be banked with the Commonwealth Bank is not supported by the evidence showing that it was directly delivered to Ramsden Faes Solicitors, in Queensland, to be deposited in its firm's trust account where is was allocated as "settlement funds". 90The Crown summarised the records of that trust account and the dispersal of the funds. It also referred to the transfer of $4,300 to Christine Wheeler's bank account, suggesting that there was a possibility that this money came from the Ramsden Faes 'trust account' monies, again relying upon the evidence of Ms Wheeler. 91The Crown further referred to the 'Offer of Mortgage Finance' from Southlands Securities Pty Ltd on 31 May 2006, the date that the corporation was registered, Schneider becoming a director on 11 July 2006. The capacity of the company to lend money was said to be "doubted". 92Reference was also made to the inquiries made of Mr Jurisich, Mrs McKercher's conversations with him bolstering her credibility, and that Mr Pydde's supposed concern about Jurisich's interest in Mrs McKercher, "a concern that could be seen as one that was not borne out of a legitimate business relationship". 93The Crown relied upon her letter of 7 June 2006 (Exhibit E) as showing that Mrs McKercher "was not able to look after herself legally and financially", because of her reference to the return of specific funds for a cheque that she herself had cancelled. But it also relies upon that document as reflecting what she believed to be the arrangement as at 1 May 2006. 94The Crown then summarised the course of events afterwards, the payments of monies to Mrs McKercher, including her protests at the payment of $4,300 to Christine, her continued contact with Schneider and the like. 95The Crown submitted that the "Offer of Loan" document (F22), could not have been signed on 1 May by Mrs McKercher and a few days later by her grandson, and that in fact it was prepared and ultimately signed by Mrs McKercher on 15 September 2006, the date she asserted. So far as her suspicions concerning the alteration of the document, the Crown submitted that "they are quite well founded but could be inaccurate". As for Jonathan Wheeler, noting his vagueness of evidence concerning this document, the Crown submits that this, "merely indicates the position he took throughout 2006 with respect to all the transactions he was involved in". 96So far as the contention, put through cross examination, that the sum of $140,000 was lent to "Snow Line" in order to pay a high rate of interest, which in turn could pay the interest on the loan, the Crown notes that that "appears to have been accepted by Mrs McKercher", but she then contracted that by shortly afterwards "denying the same proposition". 97The Crown submitted that Mrs McKercher (and Jonathan Wheeler) lent money to Snow Line Pty Ltd at a rate of 2% per month is not "credible", the rate of "2% was merely a lure for Mrs McKercher ... the loan documents were a way to later cover up a crime". 98The Crown referred to the evidence of Jonathan Wheeler about amounts that were to be lent by him, the "calculations" of Christine Wheeler on servicing the loan were "never put to the test", and in any event, showed that the parties were an "easy mark". Further, the Crown, by reference to Mrs McKercher's claims of being affected by medication, asserted that "may be an ex post facto explanation" but perhaps the reality was she could not understand how she was "deceived". 99As for the "joint criminal enterprise" the Crown referred to the instruction of Pydde as to the drawing of the cheques on 1 May that shows the two accused were "working together", as with the representations by Pydde as to interest to be paid, summarising Mrs McKercher's evidence at the conclusion of the written submissions as to the drawing of the cheques, and what she believed was going to happen to the money at pp 39 - 40. 100The Crowns made "10 points" in summary of its position in oral submissions, which, in fairness, developed into other submissions. Those points may be summarised as follows: i) Mrs McKercher, her daughter and her grandson were an "easy mark". ii) Mr Pydde was claiming to obtain finance and give advice in relation to the purchase. iii) Mr Pydde made the relevant representations that led to obtaining of the cheque for $140,000 from Mrs McKercher and that as the cheque was given to Mr Schneider this shows that the two accused "clearly acted together". iv) Pydde's activities with Mrs McKercher were designed to give the relationship an appearance of "regularity". v) one accused took the role at the "beginning" (Pydde), one seems to have taken the role at the "end" (Schneider). Whilst it might appear as "broker and lender", the ultimate lender was not a corporation associated with Mr Schneider. vi) Mrs McKercher's actions on 1 May may have been affected by the medications she took at the time and being tired from the drive down. vii) Essentially, the agreed sale price of $725,000, enabling a 100% loan to buy the property, was at odds with the later figures of mortgages proposed, such as $525,000 or $375,000. viii) The cheque for $118,150 was a "sweetener" to ensure the proposal for a $725,000 purchase price. ix) The Crown case was not dependant upon the evidence of Mrs McKercher alone, but also relied upon two exhibits, "Exhibits B & E." x) The loan document (F22) was not drawn up on 1 May. 101The Crown conceded in the course of the submissions that no evidence of direct benefit to Pydde had been established. 102It was also submitted that there may have been breaches, "administrative, moral, civil" by "these parties" (including, one assume based upon their evidence, McKercher and at least her grandson), but this did not detract from the fraud committed upon Mrs McKercher. 103The Crown concluded its submissions on the evidence essentially by saying that with the wisdom of hindsight, or "in retrospect", someone should have asked more questions "perhaps the persons themselves involved" (Mrs McKercher and her daughter) "Can we probably pay this loan that we're going to need to take out to buy this property?" However, this was not done. 104In discussion the Crown conceded that there were events after 1 May 2006 that were not consistent with Mr Pydde being interested in the deal "going through at any stage", reiterating the submission that the "$118,000 cheque" came into existence to ensure that the deal "fell over". The Crown also conceded that Mr Schneider's post offence conduct can "cut both ways". The Crown submitted "We accept that ... looking at that we can say afterwards what seems to be occurring here is an attempt to extricate himself from the commission of the offence". 105Counsel for the accused Schneider submitted that it was the case that Mr Pydde was advising on the purchase of the Missabotti property, ultimately advising that the sale of Mrs McKercher's unit be invested in a "high interest earning investment", with the interest payments meeting the interest on the "standard loan" to be taken out with respect to the Missabotti property. To this end Mr Pydde introduced Mrs McKercher and her family to Mr Schneider and essentially it was agreed to "loan monies to a company named Snow Line", submitting that the loan contracts were signed on 1 May, by Mrs McKercher and a little later by Jonathan Wheeler, notwithstanding the fact that his loan agreement (F22) was dated 1 May. It was pointed out that Mrs McKercher's version of how the contracts were signed and dated by Mr Schneider is not borne out by the physical evidence on the documents. He resisted the suggestion made by the Court that the "acceptance of the offer", if it occurred on 15 September, was a "sham". 106It is submitted that one could not draw conclusions adverse to Mr Schneider from the "dissipation" of the funds provided by Mrs McKercher because the Court did not have the complete banking records, nor details that are available from the "flow chart" as to the corporate and individual personalities identified in the flow chart, or otherwise identified from the banking records. 107It is submitted that the evidence of the transaction involving Snow Line at Norman Park set out in Mr Woudwyk's statement (Exhibit J) was entirely legitimate, the fact that it fell over reflected upon commercial realities not Mr Schneider's criminal conduct. 108Mr McLachlan then sought to analyse the various "versions" in Mrs McKercher's evidence as to precisely what she understood to be the effect of the discussions on 1 May 2006 at Coffs Harbour, (that summary of the evidence appearing at pages 472-476 transcript). 109He also analysed her evidence of what she understood to be the purpose of the deposit in the trust account and her knowledge of what was going on in relation to not only the investment of her money, but the very nub of the events, the agreement to purchase the property at Missabotti for $725,000, bearing in mind her background as a legal secretary. Reference was made also to Ms Gaul's and Jonathan Wheeler's evidence, on the topic as to the excess price on the purchase. He explained it in these terms, "I knew there was a loan, plus there was a little bit extra on top to cover - I think it was the first 12 months of the farm so the farm could get up and operational and start making the money back to pay off the loan". 110It was submitted that Ms Gaul's evidence contradicted Ms Wheeler and Mrs McKercher materially as to their understanding of the character of the transaction. Likewise Mr Jantke contradicted Mrs McKercher, and it was submitted that her account of her dealings with Mr Jantke could not be believed. Reference was also made to the conflict between Ms Wheeler and Mr Jantke concerning the supposed advice from a lawyer in Sydney to justify the arrangement concerning the "rebate" with which Mr Jantke believed was "irregular". 111Reference was made to the evidence of Ms Gaul concerning the need to get one loan, not separate loans including a business loan, and the fact that Ms Gaul gave evidence that Ms Wheeler wanted money for other business interests apart from buying the property (TP 264). 112Reference was also made to Mr Schneider's continuing contact with Mrs McKercher, his representations late in 2006 that he himself had lost thousands of dollars, "submitting that this representation was true and reflected his "bona fides". 113He submitted that there were several "indicia" that were "consistent with the existence of an agreement to loan monies, earn a high interest rate and which would in turn be used to pay a loan with respect to the Missabotti property". 114The first matter he referred to was the difficulties in servicing the loans, and the concessions made by Ms Wheeler that even a relatively small business loan of $10,000 would cause her some concern. 115Further, Ms Wheeler's plans for serving the loan from her own business activities on the property, were unrealistic, and she was not a person who was qualified or skilled enough to develop a business that could turn over sufficient funds of themselves to meet loan repayments. 116He attacked Mrs McKercher's credibility, stating that her claim of the effects of the medication she was taking did not stand with the other evidence of her understanding of what was going on, and the fact that Christine Wheeler would not interfere with her mother's domination of the negotiations because she was "handling things quite well". 117It was pointed out that on 30 June 2006, when she swore the "false statutory declaration" in the presence of Mr Jantke, she contacted Mr Schneider to tell him not to release the $80,000, and agreed in cross examination that she was "thinking very, very clearly at that point of time". 118It was also pointed out that there was paid $12,900 in "interest payments" over a period of months after 1 May. This was said to be inconsistent with dishonesty on the part of Mr Schneider. 119Mr Watson for the accused Pydde, submitted there was "no criminal enterprise at all", submitting that in order to prove guilt one would need to draw the inference dishonesty from all the circumstances. 120He pointed to the fact that Mrs McKercher sold her property in Brisbane without any assistance from Mr Pydde, Mr Pydde had been involved in advising them in relation to the Missabotti property and obtaining finance, but had at all times said that nothing could be done until after Mrs McKercher had sold her property. 121He pointed to the fact too that the parties agreed that she could not obtain finance from a bank, because Jonathan was purchasing the property and there were difficulties with the limited means of her and her daughter to service loan. 122He pointed to Mrs McKercher's statement that her biggest concern was to make sure that she could "make payment on a loan". 123It was submitted that the investment of $140,000 with a "high return, unsecured and with a higher risk", meant that repayments on the loan for the property at Missabotti could be serviced. He pointed to the fact that Mrs McKercher was concerned to put a roof over her daughter's head and assist her with her aspirations. 124It was submitted that Christine Wheeler's proposals were "unrealistic" and the only realistic way of purchasing the property was to invest the $140,000 to obtain interest. 125He pointed out that the initial drawing of the cheques on 1 May, including the $60,000 cheque for the Jonathan Wheeler trust account, was not consistent with a joint criminal enterprise on the part of Pydde and Schneider to use their influence and act deceptively and dishonestly. The Jonathan Wheeler trust account did not exist, and if there was a deception at play Mr Pydde would not have "permitted" the initial cheques to be draw. There is no evidence of either man trying to talking her out of that cheque being draw when it was initially drawn 126It was also submitted that the initial cheque for $80,000 payable to Snow Line Pty Ltd was inconsistent with the claimed lack of knowledge of that company. 127Mr Watson addressed the relationship between Pydde and Schneider, the circumstances of their first meeting with Mrs McKercher on 27 April and that it was a legitimate situation of Pydde facilitating the introduction to Schneider to assist the McKercher 'group'. 128It was submitted that Mrs McKercher was free to accept the advice given to her by Mr Pydde, that Exhibit B reflects previous discussions had and that the advise given about the disposal of the $140,000 was designed to enable Mrs McKercher to service future mortgage payments. 129It was submitted that there was nothing to show Mr Pydde had received any benefit. His reaction to learning that Jonathan Wheeler was not working spoke to the contrary of the critical Crown submission in relation to Mr Pydde, that his presentation of assisting Mrs McKercher was a deception. Consideration 130A critical issue in this trial is determining whether the Crown has proven the intentions of the two accused at the time of the passing of the cheque for $140,000 and whether the passing of the cheque arose from relevant "deceptions" of one or other of the accused, principally Pydde, as actions and statements made in furtherance of a "common criminal enterprise". The Crown has made it clear that the evidence of "dishonesty" is intimately bound up with the claimed "deceptions", although it also relies upon subsequent conduct of the accused, principally Schneider, but to a lesser extent Pydde, as reflecting upon the true state of each mind of the accused as at 1 May 2006. 131In that latter regard the prosecution relies upon a number of matters summarised above, including: i) the dissipation of funds in various ways from the trust account of Ramsden Faes, at the direction of Mr Schneider. ii) The "offer of mortgage" finance through Mr Schneider on 31 May by a corporation that had only been registered that date. iii) The obfuscation and avoidance of Mr Pydde and Mr Schneider in relation to the payment of interest monies and the whereabouts of the principal (principally Mr Schneider). iv) The circumstances of the execution of the "offer of loan", that the Crown asserts was backdated, so far as the execution of relevant documents by Mrs McKercher and Jonathan Wheeler, amongst other matters. v) Mr Pydde "washing his hands" of the matter, particularly failing to reply to Exhibit E. 132The critical prosecution witnesses to prove guilt, primarily Mrs McKercher, and to a lesser extent Ms Wheeler and her son Jonathan, were unsatisfactory witnesses in differing, but a number of respects. Jonathan was without any clear recollection of detail and was generally unreliable. He was also a witness who knowingly swore a false declaration, underlining the use of him as a "cipher" or a mechanism, for obtaining finance which neither Mrs McKercher and/or her daughter, could ordinarily raise for the purchase of the Missabotti property. Ms Wheeler was contradicted in material respects by a number of witnesses, not just her mother, but by perhaps the most independent witness in the proceeding, Ros Gaul, the vendor's real estate agent for the Missabotti property. She too had a poor memory of detail. She also had a self serving interest in the purchase of the property with very little regard for her mother's financial security or interests. Her purchase of the property, her plans for the property, were entirely unrealistic proposals in a range of ways, but she had a great degree of self interest in getting her way, irrespective of her mother's financial welfare. When convenient she claimed lack of knowledge of matters that occurred in her presence during the discussions at Bowraville and Coffs Harbour on 1 May 2006. 133Mrs McKercher was a very adamant witness, but was inconsistent on important matters of detail, particularly the events of 1 May 2006, contradicted in part by Ms Gaul as well, who really could not explain events that were inconsistent with the tenor of the Crown case, that she had been mislead, and/or not fully informed of matters relevant to the purchase of the Missabotti property and the drawing of the cheques on 1 May. It is realistic to accept that she may not have been provided with all relevant details of the use to be made of her funds and that the arrangement that she had with Mr Schneider, through Mr Pydde, was a poorly "framed" and researched (let alone documented) arrangement. In her evidence she did not fully expose her understanding and knowledge of the fundamental events surrounding the use of her money which she must have had to permit the cheque for $140,000 to be drawn. I am prepared to accept a degree of naivety on her part, notwithstanding considerable experience working in a solicitor's office in Tasmania with legal, particularly conveyancing matters. I also accept that with her advanced age may have played some role in her judgment. But her claims that the affect of medication deprived her of basic understanding of relevant events, particularly events occurring on 1 May, I cannot accept. There is no independent evidence of this. There are many events of which she gives evidence that are inconsistent with a lack of mental clarity or acuity. The evidence of Ms Gaul showed Mrs McKercher actively participating in negotiations at her office on 1 May, the redrawing of the cheques at Coffs Harbour is consistent with her acting voluntarily. She had clear memory of where people sat and other details, but seemed not to remember critical conversations that must have occurred. Her contact with Mr Jantke, swearing of a statutory declaration that was not true and her instruction to Schneider not to release "$80,000" is inconsistent with a lack of mental facility. It is clear from her evidence, and to a lesser extent the evidence of her daughter to the extent it seeks to support her on this matter, that her explanation for doing what would otherwise appear unfathomable has the hallmark of an ex post facto reconstruction. That she made unwise decisions, particularly on 1 May, before hand and afterwards, I have no doubt. But those unwise decisions appear to have been motived by her then self-interest in obtaining the Missabotti property for herself and her daughter, trying to ensure that she maximised the return on the moneys she had made available for investment. 134The evidence establishes that Mrs McKercher was very desirous of assisting her daughter and her grandson. She was prepared to contribute to the purchase of the property at Missabotti, but she was also aware that she had to structure her contribution to ensure she kept her pension and that her daughter could keep her pension. She was aware up to and beyond the 1st May, that she could not have a legal interest in the property and that she also needed to have a source of income to maintain the mortgage payments of the property to supplement her pension, which she knew she could only retain by a limited investment in the Missabotti property. Neither her daughter, nor her grandson, could make any capital contribution to the purchase of the Missabotti property (beyond his "first home buyer" allowance), although the daughter, but not the grandson, in due course could make some contribution to the payment of mortgage repayments. 135The property had to be mortgaged to be purchased. The original purchase price as agreed was $570,000, plus $36,850 for stock, chattels and other additional items. However, it is quite clear from the evidence, both documentary and from Mrs McKercher herself, as well as "independent" witnesses such as Ms Gaul and the purchaser's solicitor, that the contract price at exchange was to be $725,000.00. This was an artificial price, suggested by Mr Pydde, in his role as a finance broker or adviser to achieve the aim of enabling Jonathan, as a front for the transaction, most likely to borrow more money as against the property, than would have been the case if the contract price was $606,850, which represents approximately 83% of the inflated price. 136Mr Schneider's knowledge of these events is illustrated by the fact that he drew a cheque on Snow Line Pty Ltd's bank account for $118,150, which at the time of drawing (1 May 2006) could not be met, but which also was not intended to be negotiated at that time. It appears to have been signed by Mr Schneider, given other material containing his signature (Exhibit L). 137Mrs McKercher was and remains a canny person, who had a clear understanding of the simple facts of the purchase and the related aspects of the transaction. She was aware of the fact, at least in the short term after the exchange of contracts and beyond the completion date, that she needed to have a regular stream of income above her pension to make a proper contribution to mortgage payments and to meet her living expenses. She was prepared to take a number of steps, after the passing of the "valuable thing" to Schneider, to keep the transaction of the Missabotti property on foot, even signing a declaration that was reckless with the truth. She also knew that although ultimately she would wish to provide Jonathan with $60,000, on trust, it was not realistic as at 1 May 2006, or even immediately afterwards, because there was no trust fund, or trust deed in existence. 138She and her daughter knew Mr Pydde was a "finance broker" and was to assist them to organise finance, including advising them as to how the purchase may be structured to achieve this aim. They took his advice. However, they also knew that he was required to arrange finance outside bank or building society sources, for the simple reason that the three members of the family could not afford the property without special arrangements for borrowing and special arrangements for interest payments from any investment to meet mortgage payments. They could not borrow money from a bank or building society. Mrs McKercher also understood, given her grandson was acting as her agent, that the mortgage was to be a fixed term 'interest only' mortgage. 139It is clear also from the evidence that Mr Pydde could make no arrangements until Mrs McKercher had sold her home, receiving on 27 April $188,506. The submission of the Crown that Mr Pydde had lured her and Ms Wheeler into the transaction initially and then acted to ensure it 'fell over' has no foundation in my view. The statement made to Ms Gaul on 19 April at best was "small talk" given his other statements that nothing could be done until Mrs McKercher sold her property in Brisbane. 140Ms Gaul's evidence shows Mr Pydde's involvement in the purchase discussions and inspections of the property from February through to May and Ms Wheeler's representations to her on 19 March confirmed the fact that Mr Pydde could not make any concrete plans until the settlement of Mrs McKercher's Queensland home took place later that month. 141It was reasonably possible, in fact quite probable, that the reason Mr Schneider first appeared "on the scene" in company with Mr Pydde, was because Mr Pydde had introduced him as a person who could provide the means for achieving the ends that Mrs McKercher wished to achieve. That was the purchase of the Missabotti property, which she and her daughter had known about since February that year, to raise the finance which ordinarily they could not raise, preserve their pension rights and to have income to meet the needs arising from the purchase. 142Even with an agreed purchase price of $606,850, with an exchange of contracts and the requirement to pay 10% deposit which would be paid by Mrs McKercher because she was the only person in the family who had the money, that left insufficient funds from which Mrs McKercher could reap the benefit of interest payments to her to provide her with the money for the payment of the inevitable mortgage required to purchase the Missabotti property. The payment of a deposit less than 10% of the purchase price (very close to 5% of the actual purchase price) freed up more money for investment, as would borrowing close to 95% of the actual purchase price, or more. 143Whilst I accept the evidence of Mrs McKercher that ultimately she intended that Jonathan would have the benefit of $60,000 in trust, no mechanism was in place for that to happen as at 1 May, or at any time throughout the rest of 2006. This was an ultimate aim on her part, but which would flow from the benefits of the purchase of the property at Missabotti as she understood them. As at the critical date 1 May 2006, the purchase of the Missabotti property was paramount and in fact was the most urgent objective so far as she, and her daughter were concerned. 144Although Ms Wheeler had plans to sell stock feed or hay, agist horses, sell timber and other proposals, she clearly lacked the means both physically and intellectually to give effect to her "business plan" and the plans she had were, it seemed, poorly researched or "half baked". At the very least, her plans expressed in her evidence given her experience, were overly optimistic, in many respects unrealistic, and were subject to many variables that she had not thought through properly. Her evidence revealed that she had a number of medical issues as at 2006 and had not been involved in business associated with horses for some years before. 145At the office of Ms Gaul at Bowraville, in her presence, on 1 May it was agreed at least between Pydde and Mrs McKercher, that the contract price would be increased. Ms Gaul did not understand why this was so, it did not make much sense to her, but she did not appreciate the issues that were at large in relation to finance, the protection of Mrs McKercher's pension, her need for income and the lack of real means for the purchaser and his mother and grandmother to afford the property. She was the vendors' agent in any event, and none of these matters were within her knowledge, or really her business. The purpose of the meeting at the agent's premises was in effect to "seal the deal" with the vendors agent, subject to the formal exchange of contracts which was to occur a month later. Pydde, with Mrs McKercher's approval, negotiated the payment of $30,000 as the "real" deposit to enable Mrs McKercher to have more money available to "invest", in the short term at least so that she could have more interest payable to her. 146It may be that Mrs McKercher, at least, had not thought through the stamp duty implications of this arrangement, but these problems were overcome by the enthusiasm of the daughter to purchase the property, which was a clear influence on Mrs McKercher. Although Mrs McKercher was more astute and more involved in the relevant discussions and negotiations, than her daughter, she was still trusting of her daughter's judgment. 147As at 1 May 2006 Mr Pydde had taken the steps that he could take to clear the way for the purchase proposed. He had been told about Jonathan's debt to a finance company ("G E") in the sum of $3,300 and, in fact, had organised to settle that debt, with Mrs McKercher's money, before 1 May. 148In respect of the events at the real estate agency preceding the passing of the "valuable thing", the subject of the charge, Ms Gaul is the most independent witness available as to the circumstances in which the discussions took place to increase the purchase price as I earlier observed. Her evidence establishes clearly, contrary to the evidence of Ms Wheeler, and to some extent the evidence of Mrs McKercher, that Christine wheeler made it clear at the estate agent that she wanted one mortgage, to cover not just the cost of buying the property with the chattels, stock and like, but also to finance her "business plan" which required a substantial amount of capital up front, none of which the participants had. This "contemporaneous" representation of affairs supports the "hypothesis" advanced on behalf of the accused as to the events of 1 May, including the events at Coffs Harbour. 149The cheque drawn on Snow Line Pty Ltd's account for $118,150 given to Ms Gaul was provided on the condition that she not "bank it". This was because the cheque represented nominal "collateral" for the related mechanism to bump up the price to obtain more finance. 150This cheque was ultimately banked in early June without instruction, after exchange of contracts, in circumstances where there were no funds to meet it. There is no evidence that this action was anticipated either by Mr Pydde or Mr Schneider. This act of the agent in part precipitated the collapse of the purchase, along with the failure of the purchaser to obtain sufficient finance, or any finance at all. 151The events at Bowraville are closely related of course to the subsequent events at Coffs Harbour. I have no doubt that the respective withdrawal of funds from Mrs McKercher's account was done with her consent, in her presence, on her "instruction", on the advice of Mr Pydde, with no coercion or duress. Mrs McKercher knew, by the time of the passing of the relevant "valuable thing", that the cheque was going to Mr Schneider and that Mr Schneider was associated with Snow Line Pty Ltd, which had offered the nominal "collateral" for the price negotiation, which would enable in due course more money to be borrowed than even the property was worth. She also knew that Lindsay Schneider was to invest the $140,000 to provide her with a rate of interest far and above normal commercial sources. There is no evidence that it was explained to her as to the risks involved, or what the investment involved. But then again Mrs McKercher is not reliable as to the detail of the conversations at Coffs Harbour, by her own account. I accept that she trusted Mr Pydde's judgment, at least. But she must have suspected, given the very healthy rate of interest, that it ran greater risk than an investment in a more conservative source. 152Whilst she may have not been told whether the funds were to be invested "in" Snow Line Pty Ltd, or "by" Snow Line Pty Ltd, she was prepared to do this without any documentation save for some hand written notes on a sheet of paper which she was permitted to keep. Exhibit B was most probably prepared during the discussions at the coffee shop. Her agreement that this "valuable thing" be passed to Mr Schneider, without documentary confirmation of what was to be done with it was foolish on her part, but not the result of any mental capacity on her part particularly given her mental acuity as demonstrated six years later in her evidence in the trial. Ms Wheeler's claimed lack of knowledge of relevant discussions at the real estate office, through absences and the like is not true. Her failure to be involved, or understand discussions at the coffee shop at Coffs Harbour is likewise convenient and likely to be false. She had a keen interest in the purchase and the surrounding discussions and negotiations, because of her great enthusiasm in purchasing the property and her own claims of what has been called a "business plan" for the property. 153Mrs McKercher gave contradictory evidence as to the circumstances in which the relevant cheques were drawn on 1 May and her reasons for agreeing to do what she now cannot explain. I am satisfied that she provided the cheque for $140,000 to Mr Schneider for him to "invest", whether as a loan or otherwise, knowing that he was involved with "Snow Line". At that time Snow Line was in the process of purchasing properties at Norman Park and it is, in all the circumstances, a reasonable possibility that he believed that he could achieve a return for Mrs McKercher as promised, and as evidenced in Exhibit B. She certainly knew of "Snow Line" well before she handed over this cheque, having authorised the cheque for "Snow Line Pty Ltd' for $80,000 beforehand. 154I do not accept the prosecutor's submission that Mr Pydde was in some way plotting the demise of the Missabotti transaction, even before it was consummated by the agreement of 1 May at Ms Gaul's office. That his advice left Mrs McKercher and her family open to risks there is no doubt, but Mrs McKercher and her daughter, in my view, had agreed upon the basic strategy for acquiring the property as the only realistic way they could acquire the property and meet the repayment requirements, at least for the first fixed term. 155As for Mr Pydde and Mr Schneider at 1 May, I am relevantly satisfied that they were acting together in relation to matters concerning Mrs McKercher's financial affairs concerning the Missabotti purchase. Pydde handed over Schneider's cheque to Ms Gaul, Pydde directed or permitted Schneider to go to the bank with Mrs McKercher. He "allowed" Schneider to receive the cheque for $140,000. There is clear evidence of this. But the fact that initially he either directed, permitted or requested cheques to be drawn for "Jonathan Wheeler" and "Snow Line Pty Ltd", without knowing that Mrs McKercher would change her mind, or be persuaded to change her mind by him, is not in some respects consistent with him at the time acting deceptively or dishonestly as particularised by the prosecution. It could be that he was so clever, that he could engineer a "ruse" to lure her into the honey trap of handing over the $140,000 in one amount to Schneider, but the Crown case is devoid of any detail, even from Mrs McKercher, as to how this occurred. Certainly there is no evidence that her will was overborne. All that can be concluded is that she agreed to the change of arrangements without a great deal of persuasion, because with all the details she remembers of the meeting, where people sat, some details of the discussion etc, she provides no details of the persuasion at all. Further, she is either not accurate, or truthful, as to how Exhibit B came into existence and as to her knowledge of "Snow Line". 156As at 1 May 2006, I am not satisfied beyond reasonable doubt that Mr Pydde had no intention to organise finance, or that he was reckless to whether that could be done. Introducing Schneider was one aspect of organising finance. Mr Pydde advised on a mechanism to purchase the property and finance Ms Wheeler's business plan, with the limited means available to them or him. On 1 May 2006, Mr Pydde had agreement from Mrs McKercher as to the mechanism for that. I am not satisfied at that date that he acted dishonestly in that regard. There is no evidence of any direct benefit to him. He was concerned after 13 May 2006 that arrangements be made for finance to be obtained for the grandson, because he was upset that Jonathan had lost his job. That he may have washed his hands of the matter by shortly after 7 June 2006, is equally consistent with a reaction to events occurring after 1 May 2006, including difficulties with obtaining finance that he did not contemplate as at 1 May 2006. There is no evidence that he was not responsible for the affairs of "Snow Line". He never represented himself to be so responsible, even on the Crown case at its highest. There is no reliable evidence to conclude that "Snow Line" could not pay interest as agreed, or that Mr Pydde accurately understood its financial affairs. That is not to say he was reckless about that. 157Exhibit E, even if capable of representing what Mrs McKercher's intentions had been at some time during the discussions on 1 May, did not represent the reality of what actually happened as to the cheques that were ultimately drawn, or how the sum was paid to Mr Schneider. In any event the letter, either explicitly, or at least implicitly, reflects a belief that interest be payable on her monies. Although the letter reflects some of her exasperation at not being paid "interest" when she expected it, it does not reflect the payment of $4,300 to Christine Wheeler, which if not with Mrs McKercher's permission, was a payment made behind her mother's back. In its terms the letter reflects the bare detail of Exhibit B, which Mrs McKercher retained. If she used the handwritten detail of Exhibit B to refresh her memory of what happened, she was clearly mistaken. Somewhat counter indicatively, the Crown submitted it represented her state of mind on 1 May, but conceded that it was inaccurate, referring to a cheque that did not exist. 158Exhibit B does not strengthen the prosecution case. It reflects discussion to the effect that both the sum of $60,000 and $80,000 were to attract a total of $2,800 a month in interest. An astronomical rate for above standard interest rates for term deposits of banks etc at that time. Said to be perhaps 7% or thereabouts. Reference is made to "Jon" and "GE Bill" for $3,300 (which had been paid out of Mrs McKercher's account a few days before and "Jon (investment) 60,000". There is also reference to "Deposit ... 30,000", "Kanda Real Estate" and "Snowline P/L (sic)" at the bottom. Its terms are not inconsistent with ultimate provision to Mr Schneider of the cheque for $140,000 nor the investment of that sum to return $2,800 month in interest. A loan to "Snow Line" for that purpose is entirely consistent with what is written, even if it does not reflect the final form of the cheques draw. Exhibits B and E may be critical documents, but represent matters consistent with what was put to Mrs McKercher about her agreement with Pydde and Schneider as to what was to be done with her money. 159I do not accept that the cheque deposited in the "Ramsden Faes Trust Account" was expected by Mrs McKercher to attract interest from that source. Whilst she understood that there it was "safe", she also understood that it would not attract interest there. 160Subsequently, when Mr Jantke acted in good faith to overcome what appeared to be irregularities in the transaction (embraced though by the vendors) Mrs McKercher acted behind his back to undermine his best endeavours to keep the transaction on track. 161As for Mr Schneider, I cannot conclude beyond reasonable doubt that he acted dishonestly as 1 May 2006, in furtherance of a joint criminal enterprise with Mr Pydde. I am not satisfied that as at that date, he intended or acted recklessly not to do as Mrs McKercher understood or wished. Nor am I satisfied beyond reasonable doubt that the accused intended that relevant interest not be paid as agreed, or was reckless to that fact at that date. Whilst Mrs McKercher may have seen the amount of $140,000 as comprising two separate components, as at 1 May she had agreed that they be combined in the one cheque which she knew was going to a solicitor's trust account connected to Mr Schneider. 162Mr Schneider's use of the funds is of course one of the strongest aspects of the Crown case. That alone does not establish, at least on the part of Mr Schneider, dishonesty, or support a finding that relevant deceptions alleged had been practised. In the context of the alleged "joint criminal enterprise", there is no direct evidence that Mr Pydde connived, encouraged, approved or even knew of those matters reflected in the "flow chart" (Exhibit F28). Even allowing for the evidence earlier summarised of the "joint" character of their actions up until 1 May 2006, that Mr Pydde may have acted upon Mr Schneider's assurances, does not prove, in context, that he acted with the relevant intention or recklessly. In respect of those deceptions alleged concerning the purpose and/or utilisation of the "loan" or "investment" for $140,000, I am not satisfied that the relevant deceptions occurred. 163However, in the absence of any evidence as to what would be the character of the investment or any other details other than the "interest" would be paid from the "activities" of "Snow Line", I am not satisfied beyond reasonable doubt that Mr Schneider (who was responsible in this regard) intended, or was reckless, to doing what had been agreed in the short term. Had the Crown case been, even on Mrs McKercher's evidence, that as at 1 May 2006 it was expected on 1 May that the $140,000 would be dealt with in a particular detailed way, inconsistent with the transfer and expenditure of the funds as shown in the evidence, the evidence of those matters would have had greater strength. "Snow Line" was, as at 1 May 2006, endeavouring to further its purchase of property from which there was the possibility of return. Of course, Mrs McKercher was given no security, but neither was it promised. That she was persuaded to enter into a "bad deal" may be more apparent with the wisdom of hindsight, rather than an examination of an understanding of events on 1 May 2006. 164Other subsequent events relating to Mr Schneider's activities, obfuscations, delays etc, as the Crown rightly conceded, are something of a "two edged sword". They may be consistent with dishonesty, or a dishonest mind at an earlier time, or at the time of those subsequent events, but not necessarily so. The learned Prosecutor referred to certain conduct, particularly the preparation and execution of the "Offers of Loan" documents, executed on, or about 15 September 2006 and/or 1 May 2006, as in effect "covering up of a crime". Those events, identified earlier and in detail in the Crown's submissions, either individually or in combination, in conjunction with other evidence, do not establish either the relevant deceptions, or the dishonesty required to be established by the prosecution beyond reasonable doubt. They may be consistent with Mr Schneider seeking to protect himself from civil litigation, or covering up his incompetence, or his bad luck, or that of others. 165It is the case, consistent with some earlier findings, that I am satisfied that those documents were not executed by Mrs McKercher and Ms Wheeler on 1 May 2006. Mr Wheeler could not have done so because he was not there. There is no evidence (other than the date of course) that the document signed by Mrs McKercher was present at the discussions. Then again, the "accounts" given by Mrs McKercher as to the execution of the "Offer of Loan" are not consistent and/or do not accord with the physical evidence, that is the appearance of the writing. Particularly that of the signature, dates and alterations to the amounts to be lent. 166Mrs McKercher gave conflicting evidence as to whether she actually executed the document and/or initialled any changes. The use of the same pen to backdate the document is not borne out by the appearance of the relevant writing. However, I am unable to conclude when the documents were executed by Mrs McKercher or Mr Wheeler. He was very vague about when he executed the document he signed and where that occurred. Mrs McKercher was adamant that it occurred on 15 September 2006. Whether she is adamant about that date because of the date recorded by Mr Schneider I am unable to say. Certainly, Mrs McKercher gave the clear impression of having access at her home of relevant documents up until the time of giving evidence and that she had taken the opportunity to 'refresh her memory'. Of course, there is nothing wrong with that. In fact, in a case such as this, it is to be commended. But her attention to some detail did not extend to a capability to provide particular detail, or reliable detail, as to the important events of 1 May 2006. 167The prosecution has not satisfied the Court beyond reasonable doubt that the deceptions alleged were made or practised. Nor has it established that at the relevant time the accused were acting dishonestly. 168There is no doubt that one must have considerable sympathy for Mrs McKercher. She has suffered in many respects, losing her $140,000, and the money contributed to the Missabotti purchase plus costs no doubt incurred. She may have also been foolish and/or trusting when she should have been more cautious. She may have been blinded by the trust she put in her daughter's judgment, which clearly was less that reliable. But the sympathy one has for Mrs McKercher, even allowing for 'mistakes' she made along the way and failure to heed advice from Mr Jantke, if in fact that happened, is not the issue for resolution. Nor are the legal issues that arise in relation to the "commercial aspects" of the various transactions, the purchase of Missabotti, and related matters. This is not to say that this Court has made a determination of where fault lies for the failure of the Missabotti purchase. The critical issue, concerned with many events before and after 1 May 2006, is whether the prosecution has proven the guilt of each accused beyond reasonable doubt as pleaded by the prosecution. The verdicts of the Court reflect the fact that it did not in respect of each accused. ********** 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. Decision last updated: 05 October 2012