Parker v The Queen P16/1995 [1995] HCATrans 373 (25 October 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P16 of 1995

B e t w e e n -

DAVID CHARLES PARKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 1995, AT 2.18 PM

Copyright in the High Court of Australia

MR G.R. JAMES, QC: May it please the Court, I appear with my learned friend, MS M.J. WATSON, for the applicant. (instructed by Messrs Dwyer Durack)

MR J.R. McKECHNIE, QC: If your Honours please, with my learned friend, MR A.R. BEECH, I represent the Crown. (instructed by Director of Public Prosecutions (WA))

BRENNAN CJ: Yes, Mr James.

MR JAMES: Your Honours have the benefit of the statement filed in support of the application for special leave and also the applicant's written summary of argument. I would not seek to reiterate what appears in writing in those documents unless your Honours would wish me to take you to any particular portion of them for the moment.

A matter arises, however, in respect of the respondent's reply in which it might appear that the Court of Criminal Appeal of Western Australia, when dealing with ground 15(d), disposed of that ground as it was argued. In fact, what was argued on that ground was that - - -

GAUDRON J: What was ground 15(d)?

MR JAMES: Ground 15(d) was that the convictions were unsafe and unsatisfactory in that on a proper accounting on each charge, not one penny of the named owner could be shown beyond reasonable doubt to have been the subject of the taking.

GAUDRON J: But there were named owners in respect of each count, were there not?

MR JAMES: That is right.

GAUDRON J: There was a named owner and others in respect of each count?

MR JAMES: That is right, your Honour. Thus it boiled down on appeal to the issue: could it be shown that at least one dollar or one cent of the money of the person named in respect of that count was the subject of the taking? In that regard we had on the appeal prepared and handed up the accounting, a copy of which has been supplied to my learned friend, showing that not one dollar in each count could be attributed to the named person.

GUMMOW J: I am not sure what you mean by accounting.

MR JAMES: Of course, your Honour.

GUMMOW J: In a way that is at the heart of the matter.

MR JAMES: That is precisely the heart of the matter. Indeed, the resort had by the Court of Criminal Appeal to presumptions relating to apportionment and the equitable doctrines was in order to deal with this very point. That is, if one could have resort to those doctrines for the purposes of ascertaining who was the owner of any particular amount in the mixed fund at any particular point of time, one could thereby seek to support the case the Crown sought to make, though of course that was not the way in which the Crown put its case at trial and it was not the way the Crown put its case on appeal. Indeed, in our submission, it was entirely necessary to resort to those doctrines, otherwise there would have to have been an acquittal. Section 689(1) of the Western Australian Criminal Code provides for the functions and duties of the Court of Criminal Appeal on allowing the appeal:

The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence -

and, in our submission, we are entitled to that relief -

or that the judgment of the court before whom the appellant - - -

BRENNAN CJ: This is a familiar form, is it not?

MR JAMES: It is. It differs slightly, however, from the other forms when one comes to subsection (2):

Subject to the appeal provisions of this chapter the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or order a new trial.

In New South Wales at least a new trial if it might better remedy the problem.

BRENNAN CJ: That might be in New South Wales, I do not think it is elsewhere.

MR JAMES: I appreciate that, your Honour, but the principles, in our submission, are entirely the same throughout Australia. To crystallise the matter down, it came to the point where, for the court to order a new trial, it had to be satisfied not as it was that the accused had a fair chance of acquittal on each of the counts - and the court was of that view - but further that there was a case that could go to the jury. The court held there was cogent evidence but it held that on the basis that the accounting could be done in the way that I have referred to in terms of the appropriation and the doctrines of tracing.

GAUDRON J: That would then work on the basis, would it, leaving aside the question of presuming, as it were, that undirected moneys are first being spent by - - -

MR JAMES: Yes.

GAUDRON J: That would work though, would it not, at least to this extent, that you may well get a different sum charged with stealing and it would then have to be proved to be the property of each person who had contributed with a direction up until that time?

MR JAMES: No, your Honour, not each person. It was never a case of pooling; it was never a case of co-ownership, as their Honours point out. It was a case in which the Crown quite definitely pleaded that some of the money at a time of any taking was the money of a named person.

GAUDRON J: Yes, but they charged you with stealing X amount, the property of a named person.

MR JAMES: Yes, and others. So that yes, if the figures altered, we could still be in trouble.

GAUDRON J: No, but if the figures altered, you would have different counts.

MR JAMES: That is of course so.

GAUDRON J: And the directions would have to be proved in the case of - you would have to prove, on the Court of Appeal's view, the undirected moneys in the fund - - -

MR JAMES: Could not be attributed to the takings.

GAUDRON J: You would have to prove what sum was directed moneys and what sum was not directed moneys before you could make out the count.

MR JAMES: Not only that; you would have to prove what the direction was in each case in order to ascertain whether it fell within the legal description of direction rather than doing as the Crown chose to do at the end of the day in the trial by saying, "Anything for his personal use is outside a direction".

BRENNAN CJ: Can you try to keep the various points that you wish to make discrete.

MR JAMES: Yes, if your Honour pleases. As to those doctrines, they are doctrines of equity, of considerable antiquity, essentially dealing with presumptions of apportionment and essentially dealing with claims by various beneficiaries, if I could call them that, upon a mixed fund and dealing with, amongst other things, adjusting the rights between those beneficiaries rateably and in accordance with the principles of equity.

BRENNAN CJ: Under the Criminal Code what way do you say the Code operates?

MR JAMES: If I might take your Honours to section 373 - - -

BRENNAN CJ: Which we have read.

MR JAMES: Your Honours will see that that section - - -

GUMMOW J: That is a deeming section, is it not?

MR JAMES: It is, your Honour, and what it is to deal with is the situation which caused a problem at common law where both possession and title had passed to the recipient. It provides that in such a case the money - and "money" is given a very wide definition in the Act in section 1, as is "property", but it is given an even wider definition - - -

GUMMOW J: And "valuable security" as well.

MR JAMES: That is so, but in addition it is given the wider definition when one comes to look at the parts dealing with stealing, so that in effect it works its own tracing by virtue of the Code and it provides that it shall be deemed to be the property of the person from whom the money was received - not the owner, not the person holding the equitable title, but the person from whom the money was received who may or may not have been the agent, may have had any particular relationship.

So that, in our submission, to pray in aid the doctrines as to apportionment or as to tracing in order to define both the sum and the owner in these circumstances is to seek to utilise that material contrary to the construction of the ordinary words of the Code, it being a Code, and in a way which would in any event not accord with the normal principles for construing a statute which provides not only for criminal liability but for an additional liability in the sense of an aggravated sentence for an accused person found guilty of stealing money under a direction.

BRENNAN CJ: I do not understand what you have just said. What are you saying this does?

MR JAMES: Your Honour, essentially section 378 provides not only to sentence for stealing as a general crime - - -

BRENNAN CJ: We are not concerned about the question of aggravation. We are concerned with the question of whose property it is at the time that there is a conversion.

MR JAMES: Your Honour, we are in fact concerned with whether the Crown could show beyond reasonable doubt that it was the property of any of the persons it nominated at the time of a conversion.

BRENNAN CJ: You have given us a piece of paper; you have got count (1) on that. Would you like to tell us what you are talking about in the context of count (1).

MR JAMES: If your Honours go to count 1 your Honours will see that the charge essentially is stealing from Aerodata and others.

BRENNAN CJ: This was in fact examined by the Court of Criminal Appeal, was it not, count (1)?

MR JAMES: It was.

BRENNAN CJ: What page is that?

MR JAMES: The transcript we handed up and put the argument at pages 123 to following. It is not in the appeal book, but the Court of Criminal Appeal refers to it.

BRENNAN CJ: That might be the argument, but what the Court of Criminal Appeal did was to analyse count (1), was it not?

MR JAMES: Not in their judgment, your Honour, not from this viewpoint.

BRENNAN CJ: Page 143.

MR JAMES: At page 143 what his Honour Mr Justice Ipp did at that point was to examine the individual counts to see if the Crown could extract from that a case that Parker had employed a system to receive the moneys such that they each would have been accompanied by a direction and such that he would have known of the nature of the direction. Your Honour will see at the bottom of page 143 he sets out the balances and the deposits and then turns at page 144 to each of the deposits on the question of whether there was a request and a thank you letter and a receipt, just above line 20. He then concludes at page 145 in respect of those deposits, just above line 15:

It was critical for the jury to determine, therefore, whether, merely because Parker would have known that Kraft's cheque had been paid into the campaign account, it could be said that he also knew that the cheque was to be used for election campaign purposes.

His Honour then goes on to deal with each - - -

GUMMOW J: I am sorry, where are you reading from, Mr James?

MR JAMES: Page 145, lines 15 to 19.

BRENNAN CJ: But he deals with each of the payments in.

MR JAMES: But in terms of whether or not there was an accompaniment for the relevant named donation by a direction.

BRENNAN CJ: But the reason why he does that is to see the state of the evidence relevant to the payments in which must be attributed to the withdrawal.

MR JAMES: Yes, your Honour.

BRENNAN CJ: Is that not your point?

MR JAMES: No, the way in which his Honour attributed it to the withdrawal was by utilising the equitable doctrines and, in our submission, falling into the very error that causes us to be here.

BRENNAN CJ: Take pages 143 to 144 where it seems that you say he is applying equitable doctrines. You have your piece of paper here in relation to count (1). What is the difference between what his Honour has done and what you say should have been done in relation to count (1)?

MR JAMES: Does your Honour see that the balance is then $4,945.38?

BRENNAN CJ: Yes.

MR JAMES: Therefore, without resorting to Clayton's Case since the Aerodata withdrawal, the Aerodata amount is 1,000, it cannot be proved that $1 of Aerodata's money was used in the withdrawal because there was 4,900 still there.

BRENNAN CJ: I see.

MR JAMES: On a straight accounting without going into the question of any appropriation or without going into the question of applying any of the equitable principles of tracing.

BRENNAN CJ: Now, for the purposes of the question of whether there should be a retrial on count (1), would it not be necessary to see whether in relation to the $9,000 it was withdrawn there is evidence fit for consideration by the jury with proper directions that some or all of that amount was not to be used for the purpose for which it was used?

MR JAMES: And was the money of Aerodata.

BRENNAN CJ: Or others.

MR JAMES: No, the charge, your Honour, was "Aerodata and Others". The reason for that was, relying on one of the pleading provisions of the Criminal Code, the Crown working on the basis that the whole fund was in co-ownership utilised section 584(6):

In an indictment in which it is necessary to mention any co-owners of property it is sufficient to name one of such persons, adding the words "and another" or "and others", as the case may be, and to state that the property belonged to the person so named and another or others, as the case may be.

BRENNAN CJ: There was no necessity to mention co-owners in this indictment, was there?

MR JAMES: No, and, indeed, the argument the Crown put was that - - -

GUMMOW J: But they did.

MR JAMES: I am sorry, your Honour.

GUMMOW J: They did. It says "and Others". The counts say "and Others".

MR JAMES: That is so.

GUMMOW J: But why?

MR JAMES: The argument the Crown put was that by, in effect, paying the money for campaign purposes it would all go into one account and it would become, as it were, more or less Communist Party Case property in all portions of the money would then reside in everybody who had paid in.

GUMMOW J: But everyone talks about "the money". There were not any ducats. There were cheques paid into this bank account at the Commonwealth Bank.

MR JAMES: That is so. There was a chose in action or a credit in the bank.

GUMMOW J: Those cheques were not collected and that produced a credit in the bank account which was a debt owed by the bank to the owner of the account. That is the legal situation.

MR JAMES: Yes, and your Honour is essentially putting to me the analysis in Re Diplock.

GUMMOW J: But the question then is in what way does the Code operate on that to change that situation?

MR JAMES: In our submission, it does not operate by way of a presumption of what is in the mind of the accused by way of appropriating the withdrawal to particular amounts and that is the essence of what, in our submission, is the error into which the Court of Criminal Appeal fell in that applying those doctrines in that way what they have done is to apply presumptions and equitable doctrines contrary to the express wording or, alternatively, reinterpreting or construing the express wording of the section.

GAUDRON J: For my part, Mr James, I am not immediately enthusiastic with the notion that the Court of Appeal erred in treating it that way. Am I right in thinking that there were directed funds and undirected funds in the account?

MR JAMES: Yes. Your Honour, there were funds that were paid in subject to differing directions and undirected funds and funds subject to wider purposes and some to narrower purposes. In some cases the jury acquitted the later charges.

GAUDRON J: Is it necessary in view of the acquittals to treat at least the money from the named donor as being undirected money?

MR JAMES: Not necessarily. What one has left is a credit balance in a bank account and a withdrawal from it. The question is whether one can attribute that withdrawal to any particular payment in by any person who paid the money.

GAUDRON J: That was the question that went to the jury, as I understand it.

MR JAMES: Yes.

GAUDRON J: But I do not even understand why that was so. You were charged in each case with stealing $9,000 and it does not seem to me to have been to the point to have proved that 1,000 of it was subject to a direction.

MR JAMES: Your Honour, it was essential in each case for each account to show that the payment was accompanied by an unambiguous direction which was found by the jury to apply to the moneys such that the section could operate because otherwise Parker had the possession and title and he could not be guilty of stealing at all.

BRENNAN CJ: Mr James, you have another 20 minutes.

MR JAMES: Thank you, your Honour.

GAUDRON J: What I am suggesting to you is that it was necessary say for count (1), where $9,000 is charged, to have proved not that 1,000 of it was subject to a direction by Aerodata but that the entire 9,000 was subject to a direction.

MR JAMES: Yes. Your Honour, the Court of Appeal proceeded on a narrower basis, that is, that if the Crown could prove beyond reasonable doubt that $1 of that 9,000 was subject to a direction and was the property of Aerodata, that was enough to support the count.

GAUDRON J: Yes. I do not understand how that can be.

MR JAMES: Your Honour, for the purposes of the point that we raised it was our contention that not $1 could be so shown and it follows that it is our contention that $9,000 certainly could not be shown, but the way in which the trial was conducted by the choice of the Crown was to adopt a broad brush systems approach that your Honour presiding, the Chief Justice, has taken me to saying, "Look, here is the system of payments in. He took moneys out for personal expenses. There must have been directions of a sort inconsistent with personal expenses. Therefore, he is guilty of the lot." The jury did not accept that and acquitted on certain counts.

GAUDRON J: I go back to the question I asked before: was the only issue, live issue, in effect, that the particular money of the named donor was not subject to a direction as matters went to trial?

MR JAMES: No, there were two issues, your Honour. The first one that the particular money was not subject to a direction in law and the second one variously expressed as claim of right or mistake was that, "I didn't realise the money I was taking out was money I wasn't entitled to take out". Now, that is as it went to trial and the Court of Criminal Appeal looked at that second and said it does not really fall in the category of claim of right or mistake, the question arises as to what was Parker's knowledge of the direction in any particular case at the time of the withdrawal and that is the analysis your Honour Justice Brennan took me to by Mr Justice Ipp.

So that it is our submission that a retrial has been ordered, not only on a different basis to the basis on which the Crown presented its case at the trial, not only on a different basis to that in which the Crown ended up putting its case at the trial, not only on a different basis to the basis on which the Crown put its case on appeal, but on still another basis which would require the utilisation of the apportionment and equitable principles in order for there to be any evidence cogent enough to warrant a conviction on any of the counts.

GAUDRON J: As I read the Court of Appeal's judgment, it seems to me on that approach the Crown must prove what is the sum of undirected funds at any time at which there is a withdrawal which is the subject of a charge. Is that as you understand it?

MR JAMES: That is so and that is the basis on which this accounting is prepared. That is what we have tried, in essence, to do because it gets rather complicated. If the jury acquit on count (1) then the pool grows in each case.

GAUDRON J: Yes. It follows that there may be different charges, may there not?

MR JAMES: Yes, and what the court has done is simply to direct a new trial and that leaves the accused in the situation where he is met case after case albeit in circumstances in which on the way in which the Crown put it and on the way it conducted its case below the court held that that was certainly in error and led the trial judge into error in the summing up and notwithstanding that the Full Court had, in a previous decision on appeal from the committal, set out exactly how the Crown could put its case and the Crown saw fit to put it differently so that one of the grounds on which we won was that the Crown put its case differently to the Full Court and led the trial judge into error in the summing up.

BRENNAN CJ: Mr James, for my part I am having difficulty along this line: that the issues that fell for determination under count (1) on the first trial, however the Crown conducted the case and whatever errors might lead the Court of Criminal Appeal rightly or wrongly to have set aside the conviction on that count, those issues must necessarily be the same on the second trial as they were on the first. Now, I will come to third count in a moment, but if that be right then it seems to me that the sole question for our determination on the argument that you wishing to raise on count (1) is whether or not the Court of Criminal Appeal was right or arguably wrong in saying that the way in which you determined the ownership of the moneys that were withdrawn as to the $9,000 is the way in which they indicated it.

For my part, I do not think that it is a question of equitable principles, but I would have thought that the presumption of innocence meant that in the first place any withdrawal is to be accounted for innocently, that is, that you take out whatever you are entitled to take out as the first withdrawal and then if what is left is what you are not entitled to take out and you take it out then you are guilty.

MR JAMES: Your Honour, that is very attractive.

BRENNAN CJ: Let me finish, so that you can deal with the lot. If you come to count (2) then the jury on the first trial must have considered those facts before proceeding to count (3). When you come to count (3) the jury on the retrial must consider the same facts relevant to count (2) as the jury in the first trial considered count (2). Now, that is my problem, so answer it as you wish.

MR JAMES: May I deal with the presumption of innocence first, your Honour? The presumption of innocence is a presumption of innocence of the offence charged. It is not necessarily a presumption of general innocence that can be prayed in aid by the prosecution to prove their particular offence and that is, in our submission, the defect in reasoning which applies in Re Hallett's Estates to these exercises. He may be guilty of stealing someone else's money, he may be guilty of stealing Aerodata's, but if you cannot say beyond reasonable doubt that he committed the crime charged, he is entitled to an acquittal and not to have the matter remedied by the Crown at a new trial by some amendment to the pleading if it should be sought or anything of that order.

On the figures as we see them, if it had not been put to the jury as a broad brush approach in the way in which the Court of Criminal Appeal criticised and in the way in which it was done, he was entitled on a proper direction to an acquittal on count (1). From there on the picture grows more and more complicated with each count because the more money that is in the pool, the more certain it is that the Crown cannot succeed beyond reasonable doubt on each count as you work your way down the balance sheet. In those circumstances, for the Court of Criminal Appeal to have done no more than without detailed analysis of these conclusions to say, "We don't need to look at this", which is what implicitly they said, "because we can utilise the equitable principles, interpret the statute in that way, end up with the conclusion that on that basis, although he lost the fair chance of acquittal at trial if the case had gone ahead on proper directions and in the manner in which we had set out when we had sat as the Full Court, nonetheless he should go to trial again and the basis on which he might be convicted is that very question of law that brings us here".

BRENNAN CJ: If the jury on the first trial was satisfied that directions had been given by everybody except Sabemo and Hancock No 1, would they have been entitled to return the verdicts which they did?

MR JAMES: I am sorry, I cannot answer that, your Honour. I am trying to recall the accounting in my mind but, in my submission, it is not possible to say that the jury could have been satisfied of the directions in the light of the way the trial was conducted and the summing up. Indeed, that was the conclusion that was reached by that analysis of each one of the transactions by Mr Justice Ipp commencing at page 170 where he analysed every one of the counts and every one of the withdrawals to see whether Parker could have been acquitted of each count and held in respect of each one that he could have been and, indeed, in some cases was more likely to have been than others.

Now, your Honours, it comes down then to that passage at page 189 of the appeal book which summarises the problem, as it were, for the whole of the court. Each has more or less referred to the same point. Commencing at line 14:

The question, in this case, whether there has been a substantial miscarriage of justice in accordance with the ordinary test involves two issues. Firstly, there is the issue whether there was a fair chance of a properly instructed jury finding that the donation made by each person specifically identified in each particular count was not subject to s 373 directions. That is relevant as, if the donation concerned - - -

GAUDRON J: Can I take you back there? I have great difficulty there. Why did they not have to prove directions for the $9,000?

MR JAMES: Your Honour, we accept that on that basis the Court of Criminal Appeal was clearly in error, but even on the basis on which they reasoned they were clearly in error and I am merely seeking to go further and say that accepting the basis on which the Court of Criminal Appeal reasoned there was that flaw by applying these doctrines which essentially meant that there was no room for a new trial either because we were entitled to an acquittal or because it involved the presentation of a different case. His Honour identifies in accordance with those two propositions he sets out there that on each count - and he deals with that from page 190 onwards - Parker had a fair chance of acquittal which was lost, even on the basis of applying the principles as to appropriation or presumptions as to appropriation and the equitable principles. So that, your Honours, in our submission, this is a matter of great importance to the interpretation of the Code, great importance for the Code States utilising provisions similar to section 373.

GUMMOW J: Are there such provisions?

MR JAMES: Yes, your Honour. Further, it is a matter going deeply to the interpretation and construction of a Criminal Code in itself. Your Honours, I have neglected to hand up and I mentioned to my friend that I would, simply by way of further research - the Criminal Code is also accompanied by the Criminal Code Compilation Act 1913 and section 4 of that Act provides that:

No person shall be liable to be tried or punished in Western Australia as for an indictable offence, except under the express provisions of the Code, or some other statute law of Western Australia, or under the express provisions of same statute of the Commonwealth of Australia, or of the United Kingdom which is expressly applied to Western Australia -

and so forth. Your Honours - - -

BRENNAN CJ: That is a standard Code provision.

MR JAMES: It is but it has some significance and its significance is to rule out the common law crimes and to rule out, in our submission, doctrines of equity that would otherwise define the person who might be the victim of a crime where the statute itself provides for the person in whose favour the property is to be held.

GAUDRON J: You do have a problem though, do you not? You have virtually got to apply those doctrines to determine who owns what in the fund, do you not?

MR JAMES: You might have to for a civil action. You might even reach - - -

GAUDRON J: How do you determine it on your argument?

MR JAMES: There is no problem, of course, where he takes the lot or no problem where, on an accounting, he has taken so much of the money that he must have taken some of the named victim when one looks at the balance, but where he has not - - -

GAUDRON J: I think there is a problem in that you see.

MR JAMES: Your Honour, there may well, but all of that goes to show this provision, which could not have been enacted without some knowledge of doctrines such as the ruling in Clayton's Case and in Re Hallett's Estate, notwithstanding In re Diplock comes much later. But this provision which expressly deems the property to remain in the person who gave it has real significance and, further, of course, it is a deeming that, in our submission, is limited to the purposes of the Criminal Code stealing by direction.

GUMMOW J: Yes, but section 371(7) has a definition of "property", does it not?

MR JAMES: Yes, your Honour.

GUMMOW J: Which seems to include notions of substitution.

MR JAMES: It does and, indeed, it is our submission that the Code does its own tracing, in effect, by virtue of such provisions as that and the definition of "money" and "property" and "special property". All of that is a clear indication from the Code - - -

GUMMOW J: "Property in which or for which it has been converted or exchanged".

MR JAMES: That is right, yes, your Honour.

BRENNAN CJ: That is because what the Code does is to allow you to charge under the Code the crime of stealing even though there has been no asportation. You can have a conversion and once you bring money into the area of conversion, or allow the conversion of money to be charged to stealing, you have then got to have some provision to make the money the property of somebody so as to achieve that element of the crime of stealing. The sole problem then is that if you have - let us forget, as it were, the complications of this case - three directions as to money given to the accused and the accused takes each of those amounts of money and puts them into a bag or into a bank account and then takes money out. Now, the question is, if he only takes out one-third, assuming they are equal, and takes them out one by one, can he ever be convicted of anything?

MR JAMES: Yes, your Honour.

BRENNAN CJ: What?

MR JAMES: He can be convicted of stealing under the Code, stealing money subject to a direction "the property of person or persons unknown", and the pleading section specifically allows for that..

BRENNAN CJ: Let us take it one by one. If A, B and C are the ones who contributed this money subject to a direction and the first count is that he took the money belonging to A and others, what is the verdict?

MR JAMES: Not guilty.

BRENNAN CJ: The second one, B and others?

MR JAMES: Not guilty.

BRENNAN CJ: And the same with C and others?

MR JAMES: Yes, your Honour.

BRENNAN CJ: So what do you have to do? Do you have to say A for the first?

MR JAMES: The property of A or B or C, or the property of persons unknown, but if you pin your flag and your case to the proposition that he has stolen the money of a named person because that is the way you want to put it to the jury, and you pin your flag to that the entire way through, and you cannot really use the Court of Criminal Appeal for an advisory opinion as to how to go back and do it right the next time.

BRENNAN CJ: If, contrary to your view as to the construction of the indictment, A and others is construed distributively as meaning A, B and C, then there can be a conviction.

MR JAMES: No, your Honour. Then you get into the co-ownership pool question. You get into the difficult question of whether what the intention of the individuals were when they produced the money, to give it to him or to pool it with everyone else, and that leads to our argument about why we should be entitled to get from them the evidence of what was their intention when they passed the money over. That is the basis of the argument, if your Honours please.

BRENNAN CJ: Yes. Mr McKechnie.

MR McKECHNIE: If your Honour please, I will only address the matters that my friend has argued and rely on my written submissions for the other points. To answer in advance, I hope, your Honour Justice Gaudron's point, one would have thought that the Crown would have to prove that in respect of all the moneys that were converted, that those moneys were the subject of a direction. It would not be sufficient to prove that just one of them was. Obviously, all of them would have to be. Indeed, that was the basis upon which Justice Ipp proceeded at page 170. Having quoted from Justice Murray in the earlier matter, he really proceeds.

GAUDRON J: But that was not proved at the trial. It was not attempted to be proved at the trial apparently.

MR McKECHNIE: In my submission, it was, but whether or not it was proved it certainly was an attempt. I would say that contrary to my friend's submissions, one would have thought that on a retrial the Crown would not be seeking to change its case either as to the indictment or to the evidence. One can see, frankly, the question, and the sole question is whether one reads "Aerodata and Others" as distributive or not, but - - -

GUMMOW J: Distributive in what sense?

MR McKECHNIE: In Aerodata or someone else, and Aerodata and another. I am not - - -

GUMMOW J: What, A or B or C, or A or B plus, or A plus B?

MR McKECHNIE: It would have to be A plus B in relation to the amount converted.

GUMMOW J: Or A or B?

MR McKECHNIE: Can I approach it this way, your Honour? I accept that it is not a co-ownership position, contrary to the way it was argued. In our submission, the way that Justice Ipp deals with it is the correct way in relation to that matter at page 171 and 172 and, particularly, 172, where he deals with the key to the question being section 373. What he says is that, in effect, the deeming provision makes it a trust. Now, it is a trust for each particular person whose moneys are paid in as a direction.

GUMMOW J: What makes it a trust?

MR McKECHNIE: The deeming provision. I rely on Justice Ipp, and at page 172, the paragraph commencing, "Nevertheless, in my view"- - -

GAUDRON J: It does not say so. One thing that section 373 does not say is that it is held on trust.

GUMMOW J: It would be an odd sort of trust. In any case, it would be for purpose, according to the face of it. It might be a charitable purpose. It says "personal purpose".

MR McKECHNIE: What his Honour says:

The section, by deeming the moneys to be the property of "the person" who receives the moneys under the circumstances defined, in effect imposes a statutory trust on those moneys in the hands of the recipient.

BRENNAN CJ: It is not a trust, because section 373 says, if anything, that property remains in the person from whom it is received. So that what it says, in effect, is that this amount of money, put into the one account, if you like, nonetheless retains its character as the property of the several persons who contributed those several sums so that in the bank account, there are all the items of the donations severally. Now, the question is, did the Crown ever allege that and did it go to trial on that?

MR McKECHNIE: Firstly, I would not abandon Justice Ipp's reasoning.

BRENNAN CJ: There may no difference in the result, but it would be very difficult for you to uphold the reasoning that says there is a trust here.

MR McKECHNIE: Because, in my view, there is no difference in result, I will not stay to dally on the point. The Crown must prove, first of all, property in the money, and the fact that it goes into an account, in my submission, does not change its character. It proves that in a case of a direction by virtue of the direction. That then means that the money in the account, before we mix moneys, remains the property of the person until the direction is complied with. So that a conversion of that money for other purposes is a stealing of that money, or a portion of it.

Where there is a fund which contains the property of a number of persons who have been paid with the direction and, shall we say, undirected funds or the property of the accused, whether by the process of reasoning that Justice Ipp results, whether by simple principles of presumption or not, until the money which is the property of the accused is exhausted, one would not have thought you could get to a case of stealing. Beyond that, you may not be able to identify the specific amounts but you can say, at the end of the day, if all the money was there for a direction for campaign funds and none of it was used, that the money was not the property of the accused, it was the property of each person who paid in with a direction.

BRENNAN CJ: Take count (1). Let us assume that everything that was in at the time that the $9,000 was withdrawn was subject to a direction to be used for the re-election of Parker. $9,000 was taken out. The total amount available for withdrawal at that time was $13,000. The point that is made against you on this aspect of the case, as I understand it, is, "Well, you haven't proved that Aerodata's $1,000 was taken out. It might have been everybody else's, but not Aerodata's". What do you say about that?

MR McKECHNIE: That is why Justice Ipp attracts me, your Honour.

BRENNAN CJ: I can understand that answer. Let us put an alternative proposition and that is, if Aerodata's money is taken out rateably with all the other that is put in, is it sufficient to support the indictment that only part of Aerodata's money was taken out?

MR McKECHNIE: Yes, because the allegation in the indictment is in two parts. One is the total amount converted and, secondly, whose property it was, and the property rateably would be Aerodata and each person who paid in with a direction.

GAUDRON J: But to do that you must prove, must you not, what are directed funds in the account and what are undirected funds?

MR McKECHNIE: I accept that.

BRENNAN CJ: So that in relation to each conviction, there must have been evidence that the moneys in the account at the time of the withdrawal were all directed funds.

MR McKECHNIE: Or that there was - yes. I hesitate to agree before I have just worked that through, your Honour.

BRENNAN CJ: Yes, please do. It is important, I think.

MR McKECHNIE: That is why I hesitate to agree. I am not sure whether this answers your Honour's point, but I think that the answer that Justice Murray, with whom Justice Ipp agreed, appears in that passage at the top of 170.

"Once it is discovered that the relevant account contained a mix of funds, some of which were subject to a direction as to their application..... and others of which were not.....the question becomes whether payments out of the account allegedly for private purposes, were capable of being satisfied to any extent out of undirected funds."

BRENNAN CJ: Let me put an alternative question to you. If - and I move now to, say, count (3) or the subsequent accounts - the amount involved was, say, $5,000. If $5,000 was taken out and, at the relevant time, there stood to the credit of the account a sum of, say, $10,000 of which $1,000 was undirected funds, can the conviction be supported assuming that the $5,000 withdrawal is to be attributed at least as to $1,000 to the undirected funds, so that you would have proof of misappropriation of $4,000?

MR McKECHNIE: In my submission, yes, it could be supported.

BRENNAN CJ: Does the Code allow a conviction for a lesser amount than that charged?

MR McKECHNIE: The answer, of course, with respect, is, yes. It may be that in that case, the jury, for instance, might be asked for a special verdict and could return a verdict of guilty of stealing "not less than" whatever that lesser amount would be.

GAUDRON J: What is the provision of the Code which enables that to be done?

MR McKECHNIE: My junior will madly look around about 585, your Honour. It is more of a question that - I would have thought, in a sense of basic principles, that if the Crown proves an amount, the jury may convict of that amount so long as it is satisfied beyond reasonable doubt of that amount. The pleading of the actual amount in the indictment is, in that sense, a particular, and questions of fairness and otherwise to one part, if the Crown proceeded on the basis of $10,000, but could satisfy the jury beyond reasonable doubt of $5,000, it would be open to the jury to convict.

GAUDRON J: It may be section 594 that you want.

MR McKECHNIE: Yes. That is the alternative verdicts. I suppose if it was anything, it would be the first sentence of that, "may be convicted" of another offence. That would be by answer to your Honour.

BRENNAN CJ: It would be a novel application of the section, but it might do.

MR McKECHNIE: It might do. I would actually prefer to put it, basically, at first principles, your Honour. If the jury were satisfied as to that amount, the Crown, of course, could amend downward subject to the other things, but the jury could be satisfied of that amount and could return a verdict of what it was satisfied of, which may be of not less than something. I use that expression because I have seen that expression in relation to cases particularly of stealing from trust accounts, or one might say, with respect, other trust accounts.

GAUDRON J: But have you had experience of a jury returning a verdict of guilty in respect of a sum different from that charged?

MR McKECHNIE: Yes, your Honour, not unusually. Different in the sense of lesser. So that the Crown sets out to sustain proof of a set amount and the jury is not satisfied of that but is satisfied of a lesser amount.

BRENNAN CJ: Are there acquittals in this case to be accounted for by the jury's want of satisfaction in relation to the directions relating to the Sabemo and Hancock No 1 donations?

MR McKECHNIE: In our respectful submission, yes, your Honour, and in relation to the dates as well. The subsequent acquittal - maybe count (2). We deal with that particular point, your Honour, at paragraph 2.2(b) in our submissions.

BRENNAN CJ: Is there any similar explanation in relation to count (2)?

MR McKECHNIE: Count (2): I do think that Justice Ipp dealt with it. That was really a question of the application of the moneys, as I recollect it, and it may not be able to be proved that the application was not for election purposes.

BRENNAN CJ: The application was in accordance with the direction.

MR McKECHNIE: Yes.

BRENNAN CJ: Yes, I see.

MR McKECHNIE: Your Honours, I appreciate the force of what your Honours say in relation to the question of the trust without, in any way, abandoning Justice Ipp's reasoning but, in our respectful submission, whichever way the matter is approached, the end result is, in our respectful submission, properly dealt with by an order for retrial which the court has made.

BRENNAN CJ: Mr McKechnie, the form in which the indictment is drawn, A and others being laid as the owners of the property, certainly if there had been a case of co-ownership being made, those words would have communicated that notion, but was this put forward as a case of co-ownership?

MR McKECHNIE: It was not dealt with at trial. It was put forward in submissions in the Court of Appeal and rejected.

BRENNAN CJ: At trial though.

MR McKECHNIE: No.

GAUDRON J: You went to the jury on the basis that you only had to prove $1 referrable to the money of the named person.

GUMMOW J: That seems to appear at page 18, line 11.

MR McKECHNIE: I do not disagree with your Honours. That was certainly in the closing. One would say in a retrial, one would expect the Crown to have to particularise with greater detail, particularise the others and state its case more precisely. We would, with great respect, reject the contention that the Crown is given an opportunity to change the case in the sense that the evidence would be the same, the indictment would be the same. The way in which the Crown presented its case, of course, would now be subject to the correction which the Court of Criminal Appeal has made, but we do not, with respect, accept the contention that it is a fresh case.

GAUDRON J: Are we not speculating, though, in respect of that submission? We do not know without proof of the account from day 1, do we?

MR McKECHNIE: Know what, your Honour?

GAUDRON J: Whether the case would be the same, on the Court of Criminal Appeal's approach.

MR McKECHNIE: With respect, we do, because what we have been talking about is ownership. The Crown case in relation to the conversions could not alter. The conversions of the drawing out of certain moneys out of that fund on dates certain and on the Crown allegation for "purposes", what really is under dispute is the question of the ownership, and that, in the end, with respect to your Honour, is not a question of the alteration of the evidence but will - with the various legal matters that have gone on, may be the subject of a different legal basis upon which the Crown has put, but the case in terms of its evidence and indictment would not change. If your Honours please, those would be our submissions.

BRENNAN CJ: Thank you. Mr James.

MR JAMES: As to the latter matter, the Court of Criminal Appeal did refer to Leslie Maurice King and in the judgment of this Court where the Crown sought to put a different legal basis for conviction on the same facts and the same indictment during the summing up, and a new trial was granted. In this Court, acquittal was sought because of the nature of the change and the relevant passages appear in the judgment of the Chief Justice in the application book, but this is a different thing to Leslie Maurice King as appears from page 171 of the application book.

The way in which the Crown put its case at trial commences at the top of page 171, and reading from the last line of page 170:

Counsel for the Crown opened his case to the jury as follows -

and the opening appears at the top of page 171, and his Honour points out at page 170, when dealing with that opening, commencing at line 18:

The circumstances under which the payments were made were not uniform. Thus, it was notionally possible that the jury could find that some payments were made with directions as alleged by the Crown, but not others. That indeed, seems to have occurred in at least three of the four counts in respect of which Parker was found not guilty.

Further, it was common cause that some withdrawals were legitimately made from the campaign account in accordance with directions. Account had to be taken of these admittedly legitimate withdrawals in determining whether, in regard to each count, the nominated donor was owner of the moneys alleged to have been stolen, or part of them.

Counsel for the Crown opened his case to the jury as follows -

and the relevant passage there is:

That is because it is the prosecution case that the funds came from the ALP David Parker for Fremantle Campaign Fund, into which all the donations were put. There was no particular significance in the name of the particular person or the company identified on any charge. All the money was mixed in the account so when those funds came in it all went into that account and it was mixed together."

Now, the Crown put that in the context of the broad-brush approach it was adopting throughout the case, and his Honour points out that:

There was however, a significance in the name of the particular person....The significance lay in the fact that it was necessary for the Crown to establish that the money the subject of each charge alleged to be stolen by Parker was at least partly owned by the donor identified.

But then, on appeal, the Crown puts the co-ownership "pool" proposition commencing at line 20 owned by all the donors "in accordance with their proportionate shares". That is a matter which, we would submit, would go squarely to the donor's intention.

BRENNAN CJ: That is what the Crown was putting. The jury were directed, however, in the terms which appear at pages 11 and following, were they not?

MR JAMES: Yes, your Honour.

BRENNAN CJ: Is there any change from that?

MR JAMES: Yes, your Honour, because what the Crown has essentially done is to say, "We've charged him with simply stealing by taking money out of this bank account".

BRENNAN CJ: But on the retrial, will there be any difference between the direction that was given on the first and the issues arising on a retrial?

MR JAMES: Yes, your Honour. The directions would have to be radically different and would have to cover each count and how one applies appropriate legal principles to the facts as the juries find them on each count. That was not done in this trial at all.

BRENNAN CJ: I am not suggesting it was but in terms of the ownership.

MR JAMES: Yes, because the jury would now have to be directed that they would have to be satisfied beyond reasonable doubt in respect of each count that he had stolen the property of the person nominated in the count, and that that would involve an examination of the question of whether there was each direction in relation to each donation, and that is exactly the complaint that the Court of Criminal Appeal upheld concerning the way in which the trial was conducted contrary to the submissions of counsel for the applicant when appearing at the trial.

His Honour deals with the further argument of co-ownership at page 172, in our submission, correctly as to that proposition, commencing at line 6. He then turns to the trust proposition as, in effect, the way around the difficulty that on a simple factual basis, without praying in aid presumptions, one comes back to our statement handed up to the Court.

Your Honours, in relation to the other questions your Honour Justice Brennan raised, there was no suggestion at the first trial of any special verdict or seeking anything other than a full verdict for the full amount claimed in respect of each count, although it was put to the jury that they could convict if they were satisfied of $1 on each count. That would obviously produce immense problems by way of direction at the trial.

As to the first question your Honour Justice Brennan asked my learned friend, the Crown did not run the case on the basis of several sums and several donors looking at each direction in each case. They were added on the basis that his Honour Justice Ipp identified. If the rateability proposition that your Honour put is to be upheld, then one can envisage that it is another way of putting to the jury the application of the presumptions and itself, in effect, puts that those who had the benefit of a direction share in the property contrary to the section but in proportion as each directed amount is applicable.

BRENNAN CJ: I think your time has expired, Mr James.

MR JAMES: And I would lastly, your Honour, say that all funds at the time of the withdrawal had to be directed funds.

BRENNAN CJ: The Court will adjourn briefly in order to consider what course it will take.

AT 3.24 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.34 PM:

BRENNAN CJ: There will be a grant of special leave to appeal in this case but, in saying that, it should be clear to counsel that there are some requirements to assist the Court in dealing with this case. The first, Mr James, is that we would require written submissions well in advance of the hearing date. Those submissions ought necessarily to be couched in terms of the precise legal principle for which the appellant contends. To the extent that there is any question of accounting, the accounts should be prepared with page and line references to the source from which any figure is taken.

For your part, Mr McKechnie, if the appeal should be successful in obtaining the setting aside of the decision of the Court of Criminal Appeal and if there should be any question of remitting the matter to the Court of Criminal Appeal to consider some question of accounting or any other matter that may arise, consideration should be given in your submissions to whatever course you might contend for.

MR McKECHNIE: If your Honour pleases.

BRENNAN CJ: It would be desirable, if there is any difficulty, to fix a time within which those written submissions should be delivered and prepared. Would you have any suggestion, Mr James, as to when that might be done on your side?

MR JAMES: If your Honour wishes me to do give that date now - - -

BRENNAN CJ: It would not be a matter of urgency because the Court's lists are fairly well committed until the February sittings.

MR JAMES: Until February sittings? So that it would not get on in February or that it might get on?

BRENNAN CJ: It is a possibility but it would not be, by any means, a surety. It is more likely to be later than the February sittings.

MR JAMES: In that case, your Honour, might I have until the beginning of February?

BRENNAN CJ: The vacation being what it is.

MR JAMES: Vacation, in my case, involving being in Scotland on a case, your Honour.

BRENNAN CJ: What date in February, Mr James?

MR JAMES: The 1st.

BRENNAN CJ: 1 February. Mr McKechnie?

MR McKECHNIE: I should not need as long to respond, your Honour, but I would need to see them. If it is unlikely that the case would be brought on in February, your Honour, perhaps 21 or 28 days. So that it would be ready to be heard in March.

BRENNAN CJ: I think the February sittings conclude on 15 February. The next sittings commences for hearing of appeals on 5 March.

MR McKECHNIE: The Court would need them at least seven days before that.

BRENNAN CJ: At least. 22 February, Mr McKechnie. Call the next application.

AT 3.36 PM THE MATTER WAS CONCLUDED