Young v The Queen [2021] HCATrans 45 (12 March 2021)

Last Updated: 16 March 2021

[2021] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B51 of 2020

B e t w e e n -

BRADLEY WENDELL YOUNG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2021, AT 2.01 PM

Copyright in the High Court of Australia

MR S.C. HOLT, QC: May it please the Court, I appear with MS A.R. HUGHES for the applicant. (instructed by Jasper Fogarty Lawyers)

MR L.K. CROWLEY, QC: May it please the Court, I appear with my learned friend, MS P. KINCHINA, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL CJ: Yes, thank you, Mr Holt.

MR HOLT: May it please the Court. We need leave to proceed out of time and seek that leave, may it please the Court.

KIEFEL CJ: Is there any objection?

MR CROWLEY: Not opposed, your Honours.

KIEFEL CJ: You have that extension.

MR HOLT: May it please the Court. If the Court pleases, I propose to start with what is proposed ground 2 in the application. The reason for that is that all three grounds which reflect what we respectfully submit are clear errors that were made in the Court of Appeal all flow, to some extent, from that which is captured in ground 2, which is the changing nature of the prosecution case.

What occurred here, in our respectful submission, and the reason why there has been both a.....specific injustice done here as well as raising matters of general and public importance is that we had a Crown case that was so complex and large that in order for a jury to properly understand it – in order for the defendant to receive a fair trial – it required careful particularisation, both as to the legal basis for criminal liability and to the acts and omissions, the conduct which was said to make good all of the counts but in particular here count 1, or the Westpac fraud charge, if I can put it that way.

As the Court knows, it was a 70‑day trial with 4,000 documents tendered, but only 1,700 of which approximately were referred to overtly in the course of the evidence. As the application book shows, the jury was provided with a database of those 4,000 documents at the beginning of its deliberations and returned verdicts only five hours later.

In terms of the changes that happened to the prosecution case against that background, they were significant, in our submission. The first is, of course, that the entire legal basis for criminal liability in respect of count 1 changed on day 54 of the trial. May I take the Court very briefly to application book page 196, where the particulars – because here they were given at the beginning of the trial, are set out at paragraphs [94] and following.

At paragraph [95], the Court will see that the case, in terms of dishonesty in terms of conduct, was framed at the outset, under paragraph (a), by reference to three defendants, four of whom were said to be:

complicit in concealing –

from Westpac certain matters, and to save time later, can I note in respect of (i) that that included concealing the:

nature of the relationship between EDIS and –

what are called:

the Orchard group companies –

In particular, can I focus the Court’s attention there on the word “interdependent”, but complicity was clear and that evoked at least section 8 of the Criminal Code (Qld), a joint enterprise case. Yet, as it is set out there by the Court of Appeal on day 54 of the trial, that all changed. As those subsequent paragraphs show, and with the greatest of respect to the prosecutor below, it became clear that the Crown did not know, in effect, what the legal basis for the case was at that point, such that, as we see in paragraph [98], on day 54 prior to lunch, it was – the indication was:

the reliance is almost solely on section 8 of the Queensland Criminal Code –

and the prosecutor correctly noted:

the case has ensued, essentially, it has focused on the joint purpose –

as it would have if it were a complicity case. Yet, after lunch, a difficulty being pointed out with that mode of liability by the learned trial judge, it was then said that the prosecution case was now one of section 7(1)(a), or, in the old language, principal liability, which of course required actual conduct on the part of Mr Young, not a focus on a joint agreement, and the nature of that which was done complicit to the agreement.

It cannot, in our submission, be underestimated, the extent of that change, a fundamental change in criminal liability at that point. Were it to be a sustainable change against the background of a trial as complex and difficult as this one, at the very least the acts and omissions of the conduct which reflect the – form the basis for the case needed to be known and needed to be very precisely and clearly known so as to avoid the kind of vices of unparticularised charges in complex cases which have emerged historically.

Those acts and omissions in fact, as it turned out, were not in any sense nailed down, if I can use the vernacular, until the prosecution closing address. It is a significant feature of this matter that the prosecution closing address followed the defence closing because of the rule in Queensland that where the defence goes into evidence the orders of closing address is reversed.

So, at paragraph [102] of the Court of Appeal’s judgment below, which is on page 198 of the application book, the Court of Appeal ultimately effectively forgave the change of case and its effect, at the end of paragraph [102], on the basis that:

As the case was argued to the jury, the acts and omissions of the appellant were fairly and sufficiently identified, as we have set them out above at [40] -

raising the obvious point that the case was argued to the jury by the prosecutor after the defence had closed, at the conclusion of the entire case, and indeed paragraph [40] on page 182 on the application book makes that clear because it is a summary of what are said to be the five acts or omissions which formed the basis for liability at that point.

KIEFEL CJ: Mr Holt, I take it that defence counsel did not ask for the trial judge to clarify anything?

MR HOLT: No, your Honour is absolutely correct and that was the basis upon which we proceeded below. Our submission ultimately in respect of that is that the risk here of – well, the reality of an unfair trial is palpable by virtue of what occurred, quite apart from the question of whether or not – quite apart from the absence of an objection or a seeking of redirection on that point. The change in essence was – and it becomes even clearer, in our submission, in relation to the factual matters which changed in the prosecution closing address, but the notion that in any trial, let alone a trial that was lengthy in complexity, a change of criminal liability and then a particularisation of conduct only in a prosecution address after a defence closing, quite apart from ‑ ‑ ‑

KIEFEL CJ: In relation to a change in criminal liability and the movement away from the Tripodi basis, surely that could be dealt with by the trial judge in summing up when the questions of law are put. Up until then, the jury probably would not clearly understand the basis in any event. In relation to, which seems to be the central question, of whether or not the jury could understand the way the prosecution was putting its case, the Court of Appeal really relies on what it sets out at paragraph [40] about what was squarely put by the prosecutor as to the acts of the appellant relied upon. I realise there are two questions there.

MR HOLT: No, I understand that, and I will probably try to run both of them together if I may. The difficulty there is that that was all well and good for the relationship between the prosecutor and the jury, but it did not assist the defendant who had dealt with a case on the basis of complicity, which has an entirely different factual foundation for the course of the entire trial and not knowing what specific acts or omissions the Crown was ultimately going to close on until after his own counsel had closed. So I accept what your Honour ‑ ‑ ‑

KIEFEL CJ: Do you refer to how the defence counsel put the matter in their submissions as showing some wrong premise upon which they were proceeding?

MR HOLT: It is difficult with the constraints of the application book, but there is an example of that which falls more neatly into the next topic I was going to raise on this ground.

KIEFEL CJ: Well, leave it until then. I will not take you out of order.

MR HOLT: Thank you, your Honour. In fact, I am relatively close to it now but, as I say, the critical issue from our perspective is not that the jury might have been blind to all of this that was going on behind the scenes. The jury was necessarily blind to all of that; we accept that. It is that the case, as complex as this one was, ultimately was not crystallised for the defence until the prosecutor’s closing address and following circumstances where the entire basis for criminal liability had changed on day 54.

KIEFEL CJ: Why do you say it is a complex case? It might have had a lot of documents and transactions but the essential case surely was not very complicated.

MR HOLT: No, and with respect, your Honour is absolutely right, and that is part of the problem here. The essential case got obscured by the sheer volume of material and the complexity of the way in which the prosecution case was put.

KIEFEL CJ: That would not be the first time it has happened in a criminal trial. That is why counsel and the trial judge have to assist the jury to see the wood from the trees.

MR HOLT: No doubt, and the wood here was particularly enormous, the trees particularly hard to spot. In essence, our submission is it was an extreme example of that phenomenon which of course one sees regularly, but it was an extreme example in circumstances where, as we say, the acts and omissions, the conduct that forms the offence as it is defined in section 2 of the Code, was not even particularised or known effectively properly until the prosecution closing address.

Your Honours, I am not sure whether the Court can hear me. The connection seems to have done some strange things, I apologise.

KIEFEL CJ: We can hear you - can you hear us?

MR HOLT: I can hear you, your Honours, but the screen is doing strange things ‑ ‑ ‑

KIEFEL CJ: All right. Certainly, the audio is fine, but if it causes you a problem please let me know.

MR HOLT: Thank you. If I appear not to be looking at the screen, it is only because it is distracting ‑ ‑ ‑

KIEFEL CJ: The visual that we are getting here is fine as well.

MR HOLT: Thank you. If I can then take the Court to one of the other key matters that occurs in the prosecution closing in terms of the change in the prosecution position, and that is again, by reference back to the particulars which overtly talked about the concealing from the Westpac Bank of what was said to be interdependence between the EDIS group of companies and the Orchard group of companies. At paragraph [110] of the judgment below, which is at application book 200, the learned prosecutor is recorded there by the Court of Appeal as noting that:

“the bank always knew that there was interdependence and no one in this case has ever suggested, to the contrary, that the bank didn’t know.”

That was an extraordinary submission considering that interdependence was within the particulars which had always been part of the case. Before I come to the point that I foreshadowed with your Honour the Chief Justice a moment ago, at paragraph [74] of the Court of Appeal’s judgment at application book 191, what we see there is the Court of Appeal acknowledging that – about three sentences down:

The defence case at the trial was that there was an interdependence, and that this was well known to Westpac, so that there was no concealment of it.

So the defence case, as the Court of Appeal correctly acknowledged, was run on the basis, unsurprisingly, of the particulars. Yet at paragraph [72] of the Court of Appeal judgment the court records that it was not the prosecution case ultimately that an interdependence between the two groups was concealed, rather it was that the two groups were not independent.

At some length that distinction was explained by the prosecutor in his closing address to the jury. Again, the difficulty, of course, with that being explained to the jury in its closing address is that all of the evidence by then had been given, the defence had closed and the very basis upon which it had closed was changed by the prosecutor in closing and then, as we have noted in the outline, picked up by the learned trial judge and put to the jury as the Crown case.

KIEFEL CJ: How had the defence counsel put it to the jury?

MR HOLT: As is recorded in [74] in accurate summary that:

there was an interdependence, and that this was well known to Westpac –

In other words, the defence had taken on the Crown case as it was particularised. No change to those particulars had been foreshadowed and then suddenly in closing the prosecution says this case is in fact an entirely different one from that based on some distinction which, bluntly, is difficult to discern between interdependence and independence or dependence. The net result of all of that is a profound ambiguity and difficulty for anyone to ascertain precisely what the prosecution case was.

KIEFEL CJ: Well, for lawyers, the distinctions between associated companies being interdependent and one being independent of the other are meaningful. I am not so sure that that would be the case with a jury where, once it is made clear to them that the matter is about independence from the other company, that the reference to interdependence would have confused them at all.

MR HOLT: The difficulty, your Honour, again is that whilst that may be so from the jury’s perspective, from the perspective of the defence case it had been run on the basis, as the Court of Appeal notes, by understanding interdependence being known to Westpac and that was what was focused on, and ‑ ‑ ‑

KIEFEL CJ: What was the unfairness, or what was lost by the defence not being able to refer to “independence” rather than “interdependence”?

MR HOLT: The unfairness, your Honour, is that there was no capacity in those circumstances to understand that the Crown was putting its case on the basis that there was some distinction between those two things, and to therefore be able to focus on those matters which were either said to be indicative of interdependence or indicative of dependence or independence.

Part of the problem here again ultimately is the Crown – at its most fundamental level, the Crown opens its case, runs its case, defends its case on the basis that there is – interdependence was concealed, and then the prosecutor stands up and says interdependence was always known to Westpac, that is fine, our case is actually something different.

Now, quite how different it was, or what it was, or what difference it would have made, in large.....is speculative, but it must have made a significant difference, in our submission, that the case as particularised was disavowed in that fashion after the defence had run its trial on that basis.

Part of the difficulty then, of course ‑ and perhaps this practicalises my answer to your Honour the Chief Justice in a way that my earlier answer probably did not - in this way. The practical problem here, of course, was this. We know that there was evidence from Westpac employees, Mr Gupta in particular, which we set out in the submissions, both in our primary submissions and our reply submissions, both oral evidence and an important memorandum at the time.....was being considered to Westpac, where Mr Gupta records that EDIS and controlled entities are dependent on Kleenmaid Proprietary Limited, which was another name for Orchard.

So, there was plenty of evidence, in effect. There was evidence which entirely countered this new prosecution case theory, and we know the prosecution here says – or the respondent here says that that material was indicating knowledge of historical dependence, but that is not how it reads, with respect, and we set that out in the reply submissions.

So, there was unquestionably a practical issue here. Indeed, in fact an identifiable roadblock to the prosecution case is now put, fundamentally something which was of the essence of the allegation that was made by the prosecution and particularised at the beginning of this trial suddenly disappeared at a later point.

Our respectful submission is that overall – and I obviously for time reasons have not taken the Court to all of the matters in our outline ‑ but it is that overall, where a prosecution case in a trial like this one, the context is obviously important, changes both the premise of its allegation of criminal liability, which in turn changes that which it has to prove and that which the evidence focuses on, and only particularises the acts and omissions which is the very conduct that it alleges is criminal to rely on in its closing after the defence has closed, and with one of the key propositions.....is changed so fundamentally that that has given rise to a miscarriage.

This was always going to be an impossible case to attempt to deal with in 20 minutes, your Honours, so I will deal, if I may, with ground 3, which is the jurisdiction by locality question and it has a clear relationship to the difficulty with the change of case in the sense that the five acts and omissions, at least one of which had to have occurred in Queensland for section 12 of the Criminal Code to apply, again, came about really late in the case which probably explains why the issue was not live as a raised issue at trial.

There was an obligation, in our submission, where the question of jurisdiction or location/locality was live for the trial judge to direct on it, quite apart from it being raised and that is what the Court of Appeal accepted. It should have been put to the jury and our complaint here and the question of general public importance that arises is that the appellate court instead took it upon itself to decide on the balance of probabilities whether at least one of those acts occurred in Queensland.

Our respectful submission is that the failure to direct on something which was live on the evidence and which effectively it was an irregularity or error not to direct on, or apart from it not being raised, could not then be remedied by the Court of Appeal making its own assessment because that was to replace trial by jury with trial by an appellate Court.

As the Court will have seen, the Court of Appeal here deployed the language of “lost chance of acquittal”.....which this Court has since confirmed in GBF v Queen recently has no part to play in a miscarriage of justice ground as this was. So, it is a clear error, in our submission, and one which ought to have resulted in proper application of appellate principle.....appeal on count 1 being allowed.

The verdict was unreasonable ground – in the very short time I have left, obviously I will rely on the written outline. Our friends rely on the comment that the Court of Appeal made that it is not enough to point to exculpatory evidence, and that of course is tried and true, but what matters is the nature of the exculpatory evidence. The respectful submission that we make here for the reasons that we have set out, is that on each of the key
aspects in respect of count 1 there was evidence that Westpac knew, unequivocal evidence that Westpac knew of each of the things that were said to have been kept from it.

One piece of evidence, unchallenged in effect, or of sufficient weight to demonstrate that Westpac knew of those things is enough to destroy any number of pieces of evidence that on other occasions Westpac was not told. That is the logical corollary of the nature of the allegation that is made.

GLEESON J: Mr Holt, where did the Court of Appeal find that the issue was raised on the evidence – that the issue of locality was in fact raised on the evidence?

MR HOLT: Your Honour, it was – I will find that reference, your Honour, but – can I put it this way. By itself determining that the preponderance of evidence in respect of one of those five categories meant that it concluded that it came – that it occurred in Queensland, it necessarily recognised there was an issue in relation to it.

In addition, of course, the jury does not need to be satisfied of all five of the acts or omissions in order to find Mr Young guilty. So the fact that the Court of Appeal said the others effectively – one was definitely in New South Wales, the other three were ambiguous and the fourth we find on the balance of probabilities, leaves absolutely open as a matter of logic to the jury based on the other matters.....could have convicted Mr Young on the basis of not having concluded that one part of the offence was at least committed in Queensland.

So, the fact that the Court of Appeal itself felt it had to make a finding on the balance of probabilities itself indicates that, in our respectful submission. I have noted the second bell, your Honours, so I am ‑ ‑ ‑

KIEFEL CJ: Thank you, Mr Holt. Yes, Mr Crowley.

MR CROWLEY: Your Honours, at the outset our submission is that none of the grounds that are proposed raise any particular matter of general importance to the administration of criminal justice, particularly grounds 1 and 2. Ground 3 is the only one, in our submission, which may have a glimmer that there could be something in that that might be of general importance but, in our submission, the way in which this case presents that issue - and it is in paragraph 7 of the application for special leave where the special leave question is posed - the circumstances here do not give rise to the foundation for that question to be answered, and it is a case where this is not a suitable case for the general premise as put, which would be of importance to be the subject of a grant of special leave.

KIEFEL CJ: Is that because the issue never arose between the parties?

MR CROWLEY: It is that, your Honour, as well as the other complications of it. Can I go to ground 3, your Honour, and expand upon that? In terms of ground 3, the way in which the question is put in the special leave application for the proposed ground and the special leave question, in our submission overstates the position. At application book page 245, your Honours will see that the proposed ground of appeal at paragraph 3 has within it the assumption that the court has:

determined that it was a matter of jurisdiction that should have been left to the jury.

In our submission, the court did not do that. That overstates the position. Can I take your Honours then to the special leave question while we are on the same page – at paragraph 7? The way in which the special leave question is posed again, has within it the assumption that this was a matter of:

a foundation for jurisdiction, is an intermediate appellate court able to determine this issue for itself, or must it be determined by a jury -

where there has been a wrong or a failure to direct. Your Honours, the way in which it comes about – if I could take your Honours to the relevant portion of the court’s judgment dealing with this? It is in the application book, your Honours, from page 203, commencing at paragraph [121] through to [135] are the relevant paragraphs.

The circumstances in which this complaint in the court below arose, as your Honour the Chief Justice has pointed out, there was no direction sought. The issue was not raised. It was not agitated or argued by the applicant or through the applicant’s counsel in the trial and it was not a trial issue. The trial issue really, in simple terms, was on all of the counts had the prosecution established beyond reasonable doubt that the applicant was dishonest in what he did, dealing particularly with count 1, was he dishonest in the doing of any of those matters which are set out at paragraph [129] on the next page, page 205, of the application book.

In terms of what the court actually determined, if I can take your Honours then to paragraph [125] on page 204. That is the court’s conclusion with respect to a submission that was put by the respondent Crown below about how his Honour Justice Brennan’s judgment – or an excerpt from it in Thompson v The Queen – which is referred to in the preceding paragraph – should be considered.

The Crown below sought to defend this ground of appeal on the basis that the matter had not been raised below because it had not been argued below. The court at paragraph [125] rejected that submission and concluded that it could be raised if it is:

raised by the evidence –

but then went on, as your Honours will see:

such that there was a real, and not merely a theoretical question, as to the locality –

So, it is not simply a matter of saying after the event that there was some evidence about that. Importantly, what the court then went on to consider, at page 205 of the application book, following the enumeration of the acts that were relied upon by the prosecution in [129] – the court then went to consider those at paragraph [130]. Of those matters, we can put aside point 1 because that was the point which was an act which occurred in Sydney. It is points 2, 3, 4 and 5 which then are the matters considered by the court.

What one sees in paragraph [130] and paragraph [131] is that the court concludes that there is no real possibility, only a theoretical one in respect of matters 2, 3, and 5, such that they are not matters that, in the court’s conclusion, were to be required to be the subject of some direction or request for a special verdict from the jury. The only matter that might fall into that category would be number 4, which is the signing of the business finance agreement.

That being so, your Honours, our submission is that the premise for the proposed ground of appeal and the special leave question wrongly assume that the court has determined the issue. The court did not determine the issue because three of those four matters were matters that the court decided did not raise a real possibility and therefore there was no question to be left to the jury. The only matter then that remains is number 4.

With that matter, your Honours, it was complicated by the fact that, as your Honours will see in paragraph [126] on page 204 of the application book, the argument below by the applicant was twofold. Firstly, it was a complaint of a miscarriage of justice because of a failure to direct on an issue which had not been raised, but nevertheless, relying upon Justice Brennan’s comment in Thompson that if it had been raised, in terms of the evidence, it should have been left to the jury, but secondly, as your Honours will see, the:

argument goes further, contending that the prosecution was unable to prove, on the balance of probabilities, that the offending did take place in Queensland –

therefore, the verdict:

was unreasonable and a verdict of acquittal should be entered –

So the applicant was not simply seeking to make out a case that there had been a miscarriage of justice by a failure to give a direction or to leave to the jury a request for a special verdict, but was going further to suggest that there should in fact be an acquittal because this court, that is, the Court of Appeal, looking at the whole of the record, would not be satisfied that the evidence was sufficient such that it would be open for the jury to find the charge proven.

Now, in terms of what that meant on this issue, your Honours, unlike the case generally for the ground 1 point on unreasonable verdict, here the standard of proof, of course, is balance of probabilities, so the court undertook the exercise in the same fashion as required of reviewing the record and considering the evidence in respect of that assertion that was put below, that the evidence was not sufficient such that it would be open for the jury to have convicted the appellant.

In those circumstances then the question of looking at act number 4 had two aspects to it. One was, was it something that was raised on the evidence, but secondly, was it a matter which the court, in assessing the record, could conclude that it was open for the jury to be satisfied on the balance of probabilities? That is why, in our submission, your Honours, the court does go on in the next sections, at page 206, in paragraph [132], to refer to it being:

more probable than not that –

act 4, the signing of the business finance agreement, happened in Queensland. Just while I pause on that, your Honours, if I could take your Honours back then in the judgment to the earlier reference that the court is making - it is at paragraph [67] of the judgment, at page 189 of the application book, where the court had, after assessing at some length the evidence on the issue, reached a conclusion of it being:

more probable than not that the Business Finance Agreement was not signed by the appellant in Sydney -

and that the likelihood was that it happened in Queensland, in the place where he usually lived and work, in a timeframe which flowed from the evidence.

What the court was doing there at paragraph [67] was the task it had been asked to do and in fact, in our submission, compelled to do by the way in which the complaint in respect of the failure to direct on this issue of locality had been argued below in the Court of Appeal by the applicant. The Court was required to then undertake the task which it did.

Now, when one then comes to look at the balance of the section on page 206 of the application book on the court’s reasons for rejecting the ground of appeal, a further point of distinction here, your Honours, is in paragraph [134]. What the court was actually considering in terms of whether there had been a miscarriage was, as set out there:

a failure by the trial judge to request from the jury a special verdict on the question –

of locality. Of course, in this case a general verdict was returned on the indictment which did plead in the particularised date, time and place that count 1 happened at Maroochydore. A special verdict was not sought on locality and, your Honours, that point, in our submission, is quite important in terms of the way in which the applicant puts the case here as being an irregularity and something that was by law required to have been done. That is not so.

In our submission, your Honours, in Thompson v The Queen, both Chief Justice Mason and Justice Dawson as well as Justice Brennan each indicated that it may be a matter for a jury to consider and it was a matter which, if it did arise, it would be desirable for a special verdict to be requested, but not mandatory. Because it is not a mandatory matter, in our submission, that does have consequences in this case.

In particular, your Honours, we refer to Kalbasi v The Queen, and at paragraph [58] of the majority judgment we make the point that as the court noted there - this is dealing with the proviso issue – but as the court noted there in a trial where there is no issue as to proof of a particular element and the accused through their counsel consents to the removal of that element from the jury’s consideration, that it may be no miscarriage of justice at all will have occurred because of that removal.

Now, your Honours, in our submission, that is precisely the case here. What the applicant has sought to do below and again seeks here through the special leave question to do, is to after the event when no issue was raised and no point was argued below, to then seek to make out a case of miscarriage of justice on the basis of a question which was never posed, an issue which never arose at the trial and then to say that this is a case of general importance because what it shows is that the appellate court has usurped the role of the jury in deciding a critical question.

Our submission, your Honours, is that there are fundamental problems with that proposition and in particular when one comes to the circumstances of this case, none of those precepts are made out. The highest it gets is looking at the question of act number 4, the signing of the business finance agreement and, as we submit, your Honours the complicating factor there is that because it was being sought for an acquittal the court had to do the balancing – it had to look at the question of whether the evidence left it open to the jury to find so.

The other point on this issue your Honours, is, of course as the court noted, that any one of the acts could lead to a finding of guilt in finding of locality, and there being no real issue about points 3, 2 and 5. Any one of those could have founded liability in terms of the locality requirement, and therefore there could be a conviction maintained on that basis, notwithstanding anything that might be said about act number 4.

In our submission, your Honours, that has particular importance because even if one was to consider that the language used by the court in the concluding paragraphs at [135] of that section misstate - or misstate or confuse between miscarriage of justice and the proviso language, in our submission, the result is correct and this is a case where the proviso could apply and should apply to dismiss that ground of appeal. The essence of all that, your Honours, is that in our submission there is no general point arising here and no particular personal miscarriage that would justify a grant of leave.

On the other grounds, your Honours, particularly ground 1, we rely upon our response in the written submissions, which we set out in some detail. Can I just add to that one thing, your Honours? In terms of the knowledge of the applicant about the dire financial state of the Orchard group of companies, or the original Kleenmaid companies, in the application book, your Honours, at page 22 - this is in the course of his Honour’s summing‑up, but it has not been referred to by any of the parties elsewhere, from line 33 there is a passage there which refers to an exhibit and some evidence that was given by Mr Drake, who was one of the internal company accountants.

This is pre‑restructure, so pre‑count 1, the fraud, the application. As your Honours will see at the conclusion there the position that Mr Drake’s internal accountant determined was that if the business was to be sold the break‑even point that would be required would be some $66 million just to get back to zero or to break even on a sale.

Now, your Honours, that is just one part of the evidence and of course, this was a lengthy case which had a lot of pieces of evidence in it, but in terms of what the appellant’s role was and what he understood and would have known in terms of suspicion or awareness about the state of affairs before and after the restructure, we have, in paragraph 15 of our response, your Honours, set out in some detail the references to the evidence there. Your Honours will find that at page 279 of the application book.

But it must be borne in your mind, your Honours, between 2005 and 2007 the applicant was the managing director of all of the companies. He received all of the financials for all of the companies through that period of time. The applicant seeks to rely upon some evidence given by Ms King, one of the other company accountants, as being contrary to the position that he would have known something by reference to one entity’s balance sheet - one entity.

As your Honours will see if I can take your Honours to another reference, there was in the course of the summing‑up, reference made at page 84 of the application book from line 4. I will just note, your Honours, the contrasting original section dealing with Ms King’s evidence was at application book 61, but at 84 the learned trial judge went through the recall of Ms King.

When Ms King came back, she confirmed, in fact, that the applicant had more documents than simply that one group and that there was a whole range of reports which were provided, including for, as your Honours will see, Manlyvale, as well as he received for Kleenmaid Proprietary Limited, which was the original trading company.

What those documents indicate overall is entirely consistent with what the Court of Appeal found – that there were dire financial circumstances before and after the restructure and that the applicant, in his role of being the managing director, received the documents for all of these. The applicant points to the fact that there was no consolidated group accounting done and that that might be done post‑fact.

KIEFEL CJ: You might need to give yourself enough time to deal with the change of course in the prosecution case.

MR CROWLEY: Yes, your Honours. Thank you for that reminder, your Honour. I will move to that now. That ground 2 point, your Honours, we have set out in our submission in the response that there is no error in what the court concluded about any of those matters.

The question of interdependence, your Honours, can I direct you to the judgment at paragraphs [76] and [77] which your Honours will see at page 19l, following paragraph [74] which my learned friend took your Honours to – they make plain what the case was all about. This is not a case where, in our submission, the applicant could have had any misunderstanding about what was being alleged. The only misunderstanding may have come about – and we accept, your Honour, the way in which it was articulated by the prosecution ‑ ‑ ‑

KIEFEL CJ: In relation to Tripodi.

MR CROWLEY: It was wrong – the way in which it was being put, or at least, it was inaccurate for a time.

KIEFEL CJ: Yes.

MR CROWLEY: Because Tripodi was being – Tripodi is a question of an evidentiary rule, not a principle of liability. The question of liability did not really come up until the endpoint where – towards the end of the trial – one was looking at how are these things to be articulated to the jury, what is the basis? The way it actually went to the jury in the end, in our submission, is what counts and the way it was put was sufficiently clear, as the court found at paragraph [74]. So, in our submission, your Honours ‑ ‑ ‑

KIEFEL CJ: What do you say to the submission that the defence did not have an opportunity of addressing the “independent” argument?

MR CROWLEY: Your Honour, we say that is a red herring because the case was always one where, as paragraphs [75] and [76] in the judgment make plain, the Crown case was always – put aside the terminology – one where it was being put that this is not arm’s length, that it is going to be still one company trading overall, one business is running and everything is being done as the one entity, regardless of how it is structured.

KIEFEL CJ: That is what the Westpac witnesses said they understood to be the result of the restructure.

MR CROWLEY: That is so, your Honours, that nothing had changed in that respect. The question of dependency or independency, in our submission, the terminology did not prevent the defence being able to attack that point and make out the case that in fact it was a clean split. We are talking about a separate entity.

KIEFEL CJ: Yes, thank you, Mr Crowley.

MR CROWLEY: Thank you, your Honours.

KIEFEL CJ: Mr Holt, anything in reply? We do not have you on audio, Mr Holt. I think you have muted yourself, or there is a problem.

MR HOLT: Is that better, your Honour?

KIEFEL CJ: Yes, thank you.

MR HOLT: I am sorry. The system appeared to auto‑mute me, which I do not..... My learned friend uses these words in his submissions – “if we just put aside the terminology”. Well, the terminology here where the particulars of the offence which use the word “complicit” – this was not about liability – I am sorry, this was not about the Tripodi point per se. This was about an actual, obvious move from section 8 to section 7(1)(a) liability in the particulars, and the ease with which the Crown seeks to justify and moves away from the case as it was particularised, in our respectful submission, is why there was a clear miscarriage that occurred here.

The other issue – and again it raises the same question – our learned friend raises the question about dire financial position. The Crown chooses to use different words at different times. The case as particularised, as we note in our submissions, was acknowledged by Westpac – or conceded from Westpac – of the serious debt position of the Orchard group, in particular Orchard KM Proprietary Limited.

Our friend says we point to one entity – we point to the one entity which the particulars identified was actually the entity which it particularly related to, and the difficulty for the prosecution in that regard is that the only balance sheet – not some document – the only balance sheet about Orchard KM in evidence that preceded the loan and covered that period was that referred to at paragraph [83] of the Court of Appeal judgment – I am sorry.....on 1 July 2007 net assets of $3.4 million and a net profit of $4.4 million.

So, again, the Crown seeks to resile from its particulars and that is a function of the way this case worked, which was a case in which effectively there was a discovery of the best bits of a vast pool of material with an ultimate closing which had not been foreshadowed to the defence at all.

Finally, in terms of proposed ground 3, we make these submissions. The ground of appeal below was not that there was an error in not seeking a
special verdict, it was that no direction was sought on that issue and a direction is wholly different from a special verdict.

In [125] the position which the Court of Appeal adopted in terms of Justice Brennan’s statements made absolutely clear that the position was not one for the parties on the evidence. Ultimately, as we have said in our submission, what the Court of Appeal did was say the absence of evidence of something which the Crown must prove, the absence of evidence means there is not a real rather than a theoretical possibility, but the burden was on the Crown. May it please the Court.

KIEFEL CJ: Thank you. We consider that there are insufficient prospects of success on appeal to warrant a grant of special leave. Special leave is refused.

The Court will now adjourn.

AT 2.47 PM THE MATTER WAS CONCLUDED