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[2019] NSWCCA 160
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Roach v R [2019] NSWCCA 160 (19 July 2019)
Last Updated: 19 July 2019
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Court of Criminal Appeal
Supreme Court
New South Wales
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Case Name:
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Roach v R
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Medium Neutral Citation:
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Hearing Date(s):
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23 April 2019
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Date of Orders:
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19 July 2019
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Decision Date:
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19 July 2019
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Before:
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Bathurst CJ, Bell P, Johnson J at [1]
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Decision:
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(1) Pursuant to r 4 Criminal Appeal Rules (NSW), grant the
applicant leave to raise ground 3(b) of the amended grounds of appeal
filed on
30 November 2018;
(2) Refuse the applicant leave under r 4
Criminal Appeal Rules (NSW) to raise grounds 1(a)-(d), 2(a)-(e) and 3(a) and
(c);
(3) Refuse the applicant leave under s 5(1)(b) Criminal
Appeal Act to rely upon ground 4;
(4) Appeal against
conviction dismissed;
(5) Leave to appeal against sentence
refused.
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Catchwords:
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CRIME – Fraud – Conspired dishonestly to obtain financial
advantage by deception – $1 million advance from Commonwealth
Bank of
Australia for purpose of acquiring shares in company – Applicant used
advance to repay personal debt - s 192E Crimes Act 1900
(NSW). CRIME – False information – Supply misleading
information as director to the Australian Securities Exchange – Two
false
or misleading announcements - ss 1309 and 1311 Corporations Act 2001
(Cth). CRIME – Falsification of books – Relating to the
affairs of company – ss 1307 and 1311 Corporations Act 2001
(Cth). CRIME – Appeals – Appeal against conviction
– Conspiracy – Verdict on duplicitous basis – Directions
given
to jury – suggested three alternative agreements which might prove
conspiracy - Gave rise to latent duplicity or latent
ambiguity – No
miscarriage of justice – Applicant did not lose a real chance of
acquittal. CRIMINAL PROCEDURE – Appeals – Appeal
against conviction – Joinder of State offence with Commonwealth offences
–
“Out of the same set of circumstances” – s 29 Criminal
Procedure Act 1986 (NSW). CRIMINAL PROCEDURE – Appeals
– Appeal against conviction – Joinder of substantive offences to
conspiracy count in
same indictment – Open to the Crown to charge
applicant with conspiracy – Crown did not obtain any forensic
advantage. CRIME – Appeals – Appeal against conviction
– Falsification of books – Falsification of company minutes –
Falsification of correspondence between solicitor and company –
Falsification of correspondence between bank and company -
Documents are
“books” of the company - s 1307 Corporations Act 2001
(Cth). CRIMINAL PROCEDURE – Appeals – Appeal against
conviction – Tender and use of exhibit – Two volumes of documents
– Extended evidence of applicant during trial – No realistic
prospect of prejudice – Limited duplication of documents
that related to
prior conviction – Applicant elected to give evidence – Detailed and
thorough evidence-in-chief and cross-examination
– No unfairness to
applicant. CRIME – Appeals – Appeal against conviction
– Incompetence of counsel – Applicant not denied a fair trial
– Applicant not deprived of a fair chance of acquittal. CRIME
– Appeals – Appeal against sentence – Manifest excess –
Overall sentence not manifestly excessive –
Reasonable exercise of
discretion of sentencing judge. CORPORATIONS – Meaning of
“books of the company” considered – s 1307 Corporations Act
2001 (Cth) |
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Legislation Cited:
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Cases Cited:
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Category:
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Principal judgment
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Parties:
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Peter David Roach (applicant)
The Crown (respondent)
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Representation:
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Counsel:
J Glissan QC with D Brezniak (applicant)
M McHugh SC with K
Curry (respondent)
Solicitors:
Raihani Lawyers
(applicant)
Commonwealth Director for Public Prosecutions (respondent)
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File Number(s):
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2014/235474
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Publication Restriction:
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Nil
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Decision under appeal:
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Court or Tribunal:
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District Court of New South Wales
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Jurisdiction:
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Criminal Law
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Citation:
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Nil
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Date of Decision:
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12 October 2017
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Before:
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Judge D Yehia SC
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File Number(s):
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2014/200046
2014/200047
2014/235474
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HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Peter David Roach (the applicant) was charged on indictment with nine
offences under both Commonwealth and New South Wales law
that related to the
affairs of Healthzone Ltd (Healthzone). The applicant was the Executive Chairman
and Chief Executive Officer
of Healthzone, an ASX listed company.
Count 1 alleged that the applicant conspired dishonestly to obtain a
financial advantage, namely a $1 million loan contrary to s 192E
Crimes Act
1900 (NSW). Counts 2 and 3 alleged that the applicant as a director of
Healthzone supplied misleading information concerning its affairs
to the
Australian Securities Exchange Ltd (ASX), contrary to ss 1309(1)(c), (d) and
1311(1) Corporations Act 2001 (Cth). Counts 4-9 related to alleged
conduct by the applicant that resulted in the falsification of books relating to
the affairs
of Healthzone contrary to ss 1307(1) and 1311(1) Corporations
Act.
The conspiracy alleged in Count 1 involved an agreement between the applicant
and Mr Ge Wu, an Executive Director of Healthzone, to
obtain a $1 million
advance from the Commonwealth Bank of Australia Ltd (CBA) by dishonestly
informing both the board of Healthzone
and the CBA that the funds were to be
used to acquire shares in Healthzone. However, the funds were ultimately
advanced to the applicant
and used to repay a $900,000 debt owed by the
applicant. The Crown alleged in relation to Counts 2 and 3 that the applicant
and Mr
Wu entered into an agreement to give the false appearance that the
applicant had purchased shares in Healthzone. It was alleged that
the applicant
caused two announcements to be lodged on the ASX stating that the applicant had
purchased Healthzone shares that were
false or misleading because, at the time
of lodgement, the applicant had not purchased Healthzone shares. In relation to
Counts 4-9,
it was alleged that the applicant falsified books affecting or
relating to the affairs of Healthzone, namely, altering an email sent
by
Healthzone’s solicitor to Mr Wu, email correspondence between Mr Wu and
the CBA, and Healthzone board minutes that were
sent as an email attachment.
Following a trial by jury, the applicant was convicted of all counts in the
indictment. The applicant was sentenced to a total term
of imprisonment of four
years and three months with an effective minimum term of two years and three
months.
Mr Roach sought leave to appeal against his conviction and sentence. There
were seven main issues on appeal:
(1) Whether the trial judge erred in permitting the prosecution to advance the
case of conspiracy in Count 1 on alternative bases
which were duplicitous and/or
inviting a verdict on a duplicitous basis?
(2) Whether there was an error in the joinder of a State offence in Count 1 with
Commonwealth offences in Counts 2-9?
(3) Whether there was an error in the joinder of substantive offences to a
conspiracy count in the same indictment?
(4) Whether the documents the subjects of Counts 4-9 were not books of
Healthzone?
(5) Whether the tender and use of documents which became Exhibit 1 and/or the
extended evidence of the applicant gave rise to any
unfairness to the
applicant?
(6) Whether the applicant was denied a fair trial or deprived of a fair chance
of acquittal due to the incompetence of his trial
counsel?
(7) Whether the overall sentence imposed on the applicant was manifestly
excessive?
Whether the trial judge erred in permitting the
prosecution to advance the case of conspiracy in Count 1 on alternative bases
which
were duplicitous and/or inviting a verdict on a duplicitous basis?
(a) The Court held that the additional directions given to the jury in the
summing up by the trial judge which suggested the possibility
that there were
three alternative agreements which might prove the offence of conspiracy in
Count 1 gave rise to a problem of latent
duplicity or latent ambiguity. The
Court refused leave to appeal as it found that there was no miscarriage of
justice in the sense
that the applicant lost a real chance of acquittal from the
remarks by the trial judge or by the Crown: [58]-[72].
Johnson
v Miller (1937) 59 CLR 467; [1937] HCA 77; S v The Queen (1989) 168
CLR 266; [1989] HCA 66; Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA
26; Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8; ARS v
R [2011] NSWCCA 266; Picken v R; R v Picken [2007] NSWCCA 319
referred to.
Whether there was an error in the joinder of Count 1 with Counts
2-9?
(b) The Court refused leave to appeal and held that there was no error in the
joinder of a State offence in Count 1 with Commonwealth
offences in Counts 2-9.
The Court found that the Commonwealth statutory offences charged in Counts 2-9
arose “out of the same
set of circumstances” as Count 1 pursuant to
s 29(1)(b) Criminal Procedure Act 1986 (NSW), and that there was no
reasonable basis for the Court to form an opinion that the matters ought to have
been “heard and
determined separately in the interests of justice”
pursuant to s 29(3) Criminal Procedure Act: [79]-[90];
[198].
Francis Travel Marketing Pty Ltd v Virgin Atlantic
Airways Ltd (1996) 39 NSWLR 160; Osman v R [2006] NSWCCA 196;
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; R v
McCready (1985) 20 A Crim R 32; Pearce v The Queen (1998) 194 CLR
610; [1998] HCA 57 referred to.
Whether there was an error in the joinder of substantive offences to a
conspiracy count in the same indictment?
(c) The Court refused leave to appeal and found that there was no error in the
joinder of substantive offences to a conspiracy count
in the same indictment.
The Court found that it was open to the Crown to charge the applicant with
conspiracy and the Crown did not
obtain any forensic advantage from charging the
applicant with conspiracy: [91]-[98].
The Queen v Hoar
(1981) 148 CLR 32; [1981] HCA 67 considered.
Whether the documents the subjects of Counts 4-9 were not books of
Healthzone?
(d) The Court granted leave to appeal however held that the documents the
subject of Counts 4-9 fell within the definition of “books”
in s
1307 Corporations Act. The Court found that s 1307 Corporations Act
is limited to books forming part of the records of the company or any
securities belonging to the company, and that there must be
a connection between
these books and the company’s affairs. The Court found that the
falsification of the minutes fell within
s 1307 Corporations Act as it is
a falsification of a document required to be kept by the company pursuant to s
251A Corporations Act and made available to members pursuant to s 251B
Corporations Act. The Court found that, having regard to the identity of
the parties who brought the documents into existence, the subject matter
and
their purpose, the remaining documents, that is advice from Healthzone’s
solicitor and correspondence between Healthzone
and CBA, also fell within the
definition of “books” in s 1307 Corporations Act:
[109]-[127]; [197].
Australian Securities and Investments
Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 considered.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)
(2009) 239 CLR 27; 
[2009] HCA 41 
; Tooheys Ltd v Commissioner of Stamp
Duties (NSW) (1961) 105 CLR 602; [1961] HCA 35; Travelex Ltd v Federal
Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33; Airservices
Australia v Canadian Airlines International Ltd (2000) 202 CLR 133; [1999]
HCA 62; Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168
ALR 211; [1999] NSWCA 416; Residues Treatment and Trading Co Ltd v
Southern Resources Ltd [1989] SASC 1397; (1989) 52 SASR 54; Tubby Trout Pty Ltd v Sailbay
Pty Ltd (1992) 42 FCR 595; Sheahan v Northern Australia Land and Agency
Co Pty Ltd (1994) 176 LSJS 257; The Duke Group Ltd (in liq) v Pilmer
(1994) 63 SASR 364; Valoutin Pty Ltd v Furst [1998] FCA 339; (1998) 154 ALR 119;
Caratti v R [2000] WASCA 279; (2000) 22 WAR 527; R v Turner (No 17) (2002) 10 TasR
388; [2002] TASSC 18 referred to.
Whether the tender and use of documents which became Exhibit 1 and/or the
extended evidence of the applicant gave rise to any unfairness
to the applicant?
(e) The Court refused leave to appeal and held that there was no unfairness to
the applicant in the tender and use of Exhibit 1 which
comprised two volumes of
documents or the extended evidence of the applicant during the trial. The Court
found that the use of Exhibit
1 during the trial did not give rise to any
unfairness to the applicant. The Court held that there was “no realistic
prospect”
of prejudice to the applicant because of the “very limited
duplication of tendered documents” and that the inclusion
of a small
number of documents that related to a prior conviction of the applicant did not
give rise to any detriment or cause any
prejudice to the applicant. The Court
found that the applicant elected to give evidence and his “detailed and
thorough”
evidence-in-chief and cross-examination did not indicate
unfairness to the applicant: [142]-[151].
R v Petroulias (No.
34) [2007] NSWSC 1462 referred to.
Whether the applicant was denied a fair trial or deprived of a fair chance
of acquittal due to the incompetence of his trial counsel?
(f) The Court refused leave to appeal and held that an examination of the events
during the trial did not, when taken separately
or together, support a
conclusion that the applicant was denied a fair trial or deprived of a fair
chance of acquittal because of
the conduct of his trial counsel: [152]-[166];
[198].
TKWJ v The Queen [2002] 212 CLR 127; [2002] HCA 46;
Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8; Nudd v The Queen
(2006) 80 ALJR 614; [2006] HCA 9; Davis v R [2017] NSWCCA 257;
Ahmu v R [2014] NSWCCA 312; Vella v R [2015] NSWCCA 148;
Langelaar v R [2016] NSWCCA 143; Alkhair v R (2016) 255 A Crim R
419; [2016] NSWCCA 4; Moustafa v R [2019] NSWCCA 89 referred to.
Whether the overall sentence imposed on the applicant was manifestly
excessive?
(g) The Court refused leave to appeal and held that the overall effective
sentence imposed on the applicant was not manifestly excessive.
The sentences
imposed upon the applicant “lay comfortably” within the reasonable
exercise of the discretion of the sentencing
judge in the circumstances of the
case: [179]-[185]; [198].
Obeid v R (2017) 96 NSWLR 155;
[2017] NSWCCA 221 referred to
JUDGMENT
- THE
COURT: The applicant, Peter David Roach, was charged on indictment dated 9
July 2015 with nine offences relating to what might be described
generally as
the affairs of Healthzone Ltd (Healthzone). The applicant seeks leave to appeal
against conviction and sentence arising
from his conviction by a jury for
offences of conspiracy to dishonestly obtain a financial advantage by deception
(a State offence),
two counts of authorising the making available to an operator
of a financial market of information relating to the affairs of a corporation
that was knowingly false or misleading in a material particular, contrary to ss
1309(1)(c), (d) and 1311(1) Corporations Act 2001 (Cth) (Corporations
Act) and six counts of engaging in conduct that resulted in the
falsification of books relating to the affairs of a corporation contrary
to ss
1307(1) and 1311(1) Corporations Act.
- The
indictment charged offences under Commonwealth and New South Wales law and was
prosecuted at trial and on appeal by the Commonwealth
Director of Public
Prosecutions with the authority of the Director of Public Prosecutions for New
South Wales.
- Count
1 of the indictment was in the following terms:
“The Director of Public Prosecutions for the State of New South Wales, who
prosecutes in this behalf for Her Majesty, charges
on 9 July 2015 that
PETER ROACH
1. Between about 18 March 2011 and about 17 November 2011, at
Sydney in the State of New South Wales, and elsewhere, conspired
with Ge Wu to
commit a criminal offence, namely the offence of, by deception, dishonestly
obtaining a financial advantage, namely
a $1 million loan
a common law conspiracy to commit an offence contrary to s 192E of the Crimes
Act 1900 (NSW) (Law Part Code: 62277).”
- Counts
2 and 3 of the indictment alleged that the applicant as a director of Healthzone
supplied misleading information concerning
its affairs to the Australian
Securities Exchange Ltd (ASX), contrary to ss 1309(1)(c),(d) and 1311(1)
Corporations Act. It is unnecessary to set out the terms of the charge in
detail.
- Counts
4-9 of the indictment related to conduct resulting in falsification of books
relating to the affairs of Healthzone. Those counts
are in the following
terms:
“And the said Director of Public Prosecutions further charges that
PETER ROACH
4. Between about 3 May 2011 and about 12 May 2011, in China,
and elsewhere, being an officer, namely a director, executive chairman
and chief
executive officer of Healthzone Ltd, engaged in conduct that resulted in the
falsification of books relating to the affairs
of Healthzone Ltd.
Particulars
Peter Roach altered the email sent by Bill Fuggle of Baker & McKenzie to Ge
Wu on 3 May 2011 at 5:04 pm, which resulted in a
false book, being a purported
email sent by Bill Fuggle to Ge Wu on 28 April 2011 at 5:04 pm, that Peter Roach
emailed to Mary Ann
Harper on 12 May 2011 at 9:46 + 1000
contrary to s 1307(1) and s 1311(1) Corporations Act 2001 (Cth) (Law Part Code:
44331).
And the said Director of Public Prosecutions further charges that
PETER ROACH
5. Between about 4 May 2011 and about 12 May 2011, in China,
and elsewhere, being an officer, namely a director, executive chairman
and chief
executive officer of Healthzone Ltd, engaged in conduct that resulted in the
falsification of books relating to the affairs
of Healthzone Ltd.
Particulars
Peter Roach altered an email sent by Ge Wu to Ruth Chan of the Commonwealth Bank
of Australia (‘the CBA’) on 4 May 2011
at 4:46 pm, which resulted in
a false book, being a purported email sent by Ge Wu to Ruth Chan of the CBA on
28 April 2011 at 7:16
pm, that Peter Roach emailed to Mary Ann Harper on 12 May
2011 at 9:46 + 1000
contrary to s 1307(1) and s 1311(1) Corporations Act 2001 (Cth) (Law Part Code:
44331).
And the said Director of Public Prosecutions further charges that
PETER ROACH
6. Between about 4 May 2011 and about 12 May 2011, in China,
and elsewhere, being an officer, namely a director, executive chairman
and chief
executive officer of Healthzone Ltd, engaged in conduct that resulted in the
falsification of books relating to the affairs
of Healthzone Ltd.
Particulars
Peter Roach altered an email sent by Ruth Chan of the CBA to Ge Wu on 4 May 2011
at 6:46 pm, which resulted in a false book, being
a purported email sent by Ruth
Chan of the CBA to Ge Wu on 2 May 2011 at 10:45 + 1000, that Peter Roach emailed
to Mary Ann Harper
on 12 May 2011 at 9:46 + 1000
contrary to s 1307(1) and s 1311(1) Corporations Act 2001 (Cth) (Law Part Code:
44331).
And the said Director of Public Prosecutions further charges that
PETER ROACH
7. Between about 10 May 2011 and about 12 May 2011, in China,
and elsewhere, being an officer, namely a director, executive chairman
and chief
executive officer of Healthzone Ltd, engaged in conduct that resulted in the
falsification of books relating to the affairs
of Healthzone Ltd.
Particulars
Peter Roach altered an email sent by to Ge Wu to Ruth Chan of the CBA on 10 May
2011 at 12:59 pm with a blind copy to Peter Roach,
which resulted in a false
book, being a purported email sent by Ge Wu to Ruth Chan of CBA on 2 May 2011 at
3:05 pm, that Peter Roach
emailed to Mary Ann Harper on 12 May 2011 at 9:46 +
1000
contrary to s 1307(1) and s 1311(1) Corporations Act 2001 (Cth) (Law Part Code:
44331).
And the said Director of Public Prosecutions further charges that
PETER ROACH
8. On about 12 May 2011 and about 12 May 2011, in China, and
elsewhere, being an officer, namely a director, executive chairman
and chief
executive officer of Healthzone Ltd, engaged in conduct that resulted in the
falsification of books relating to the affairs
of Healthzone Ltd.
Particulars
Peter Roach altered an email sent by Ruth Chan of CBA to Ge Wu on 12 May 2011 at
8:32 + 1000, which resulted in a false book, being
a purported email sent by
Ruth Chan of CBA to Ge Wu on 2 May 2011 at 12:32 pm, that Peter Roach emailed to
Mary Ann Harper on 12
May 2011 at 10:17 + 1000
contrary to s 1307(1) and s 1311(1) Corporations Act 2001 (Cth) (Law Part Code:
44331).
And the said Director of Public Prosecutions further charges that
PETER ROACH
9. Between about 10 May 2011 and about 12 May 2011, in China,
and elsewhere, being an officer, namely a director, executive chairman
and chief
executive officer of Healthzone Ltd, engaged in conduct that resulted in the
falsification of books relating to the affairs
of Healthzone Ltd.
Particulars
Peter Roach altered the Healthzone Ltd board minutes dated 10 May 2011 which
resulted in a false book, being purported Healthzone
Ltd board minutes dated 2
May 2011, that Peter Roach emailed to Mary Ann Harper on 12 May 2011 at 9:46 +
1000 as an attachment
contrary to s 1307(1) and s 1311(1) Corporations Act 2001 (Cth) (Law Part Code:
44331).”
- Following
a trial by a jury, the applicant was convicted of all the counts in the
indictment. On Count 1, he was sentenced to a term
of imprisonment of three
years and six months commencing on 24 August 2018 and expiring on 23 February
2022, with a non-parole period
of 18 months to expire on 23 February 2020.
- On
Counts 2 and 3, he was sentenced to nine months’ imprisonment commencing
on 24 November 2017 and expiring on 23 August 2018,
whilst on Counts 4-9 he was
sentenced to three months’ imprisonment commencing on 24 November 2017 and
expiring on 23 February
2018. It can thus be seen that the sentences for Counts
4-9 inclusive were made wholly concurrent with the sentences for Counts 2
and
3.
Grounds of Appeal
- The
applicant has appealed against his conviction and sentence. Amended grounds of
appeal were filed by the applicant on 30 November
2018. The amended grounds of
appeal state:
“1. The Indictment Grounds
(a) The trial judge erred in permitting the prosecution to
advance the case of conspiracy on alternative bases which were duplicitous
(b) the accused was deprived of a fair trial according to law
and of a fair chance of acquittal by the impermissible joinder of
the first
count in the Indictment with counts 2-9 thereof, permitting the trial on an
indictment for conspiracy mixing State and
Commonwealth matters as joint counts.
The accused was thereby precluded from trial by judge alone and thereby lost a
chance of acquittal.
(c) the accused was denied a fair trial by the joinder of
substantive offences to a conspiracy count in the same indictment,
contrary to
law and accepted practice.
(d) counts in the indictment numbered 4-9 inclusive did not on
the evidence disclose an offence known to law.
2. The Course of Trial Grounds
(a) The prosecution should not have been permitted to
introduce in opening the jury book of 1200 pages. This overly long ‘Court
Book’ was admitted without objection and presented to the jury as a global
exhibit. It was then used by the prosecutor in opening,
mixing address and
evidence. This course was not the object of objection.
(b) The manner in which the conspiracy charge was opened and
presented to the jury rendered a fair trial of the conspiracy count
impossible.
(c) The accused was deprived of a fair trial according to law
by the volume and complexity of the documentary material presented
to the jury,
and thereby lost a fair chance of acquittal.
(d) The trial miscarried by reason of the tender into evidence
of documents and material relating to the prior conviction of the
accused and
otherwise inadmissible and prejudicial to the appellant.
(e) The evidence of the accused extending over 7 days and in
excess of 700 pages of transcript, including more than 440 pages
of
cross-examination rendered the trial unfair.
3. The Summing-Up Grounds
(a) The trial judge erred in leaving the conspiracy count to
the jury in a manner that invited a verdict on a duplicitous basis.
(b) There was a miscarriage of justice by reason of the trial
judge leaving counts 4-9 to the jury without adequate direction
as to the
elements thereof, in particular as to the documents said to be the books
described in Corporations Act s 1307.
(c) There was a miscarriage of justice by reason of the
admission into evidence of documentary material identifying the fact of
a
previous conviction of the appellant.
4. The Competence of Counsel Ground
The appellant was denied fair trial or deprived of a fair chance of acquittal
due to the incompetence of his counsel.
5. The Appeal Against Sentence
The aggregate sentences imposed in relation to the conspiracy and Corporations
Law counts were too severe and exceeded a proper exercise
of the sentencing
discretion.”
The Crown Case on Count 1 - Conspiracy to
Dishonestly Obtain a Financial Advantage by Deception
- During
2011, the applicant was the Executive Chairman and Chief Executive Officer of
Healthzone, an ASX listed company. Mr Ge Wu (otherwise
known as Michael Wu) was
an Executive Director of Healthzone.
- The
conspiracy alleged involved an agreement between the applicant and Mr Wu that
they would obtain a $1 million advance from the
Commonwealth Bank of Australia
Ltd (CBA) by dishonestly informing both the board of Healthzone and the CBA that
the funds which were
ultimately to be advanced to the applicant were to be used
to acquire shares in Healthzone, whereas, in fact, they were to be used
to repay
a $900,000.00 debt owed by the applicant to his sister, a Ms Mary Ann
Harper.
- The
Crown alleged that it was recognised by the board of Healthzone that it was
important for the applicant as Chief Executive Officer
to be seen as having his
interests aligned with that of Healthzone, which could be achieved by the
applicant acquiring more shares
in it.
- The
Crown alleged that in early 2011, the applicant approached a Ms Ruth Chan of the
CBA to discuss a personal line of credit or a
margin loan to enable the
applicant to obtain funds to purchase shares in Healthzone. The CBA was
not prepared to make the loan to the applicant.
- The
Crown alleged that in about April 2011, the applicant approached Mr Wu and urged
him to commence discussions with Ms Chan about
the CBA loaning Healthzone $1
million which would then be on-lent by Healthzone to the applicant, ostensibly
for the purpose of purchasing
shares in Healthzone.
- It
was alleged by the Crown that to ensure the CBA and the board’s
approval the applicant and Mr Wu agreed that they would not inform the CBA or
Healthzone that the true purpose
of the loan was to enable the applicant to meet
his indebtedness to Ms Harper.
- On
11 May 2011, the Healthzone board met in Shanghai and approved a $1 million loan
to the applicant for the specific purpose of increasing
his shareholding in
Healthzone. The minutes recorded that the directors took the view that
Healthzone’s ability to raise capital
in the future would be facilitated
by increasing the applicant’s shareholding in the company. The Crown
alleged that the applicant
knew that if his fellow directors had known about the
true purpose of the loan, they would not have approved the proposal.
- In
order to create the false appearance that the applicant was in fact purchasing
Healthzone shares, the applicant and Mr Wu entered
into an arrangement to give
the appearance that the applicant had purchased shares from two of Mr Wu’s
relatives. The applicant
did not pay Mr Wu’s relatives for the shares,
although a share transfer form was executed and signed in June 2011. The
transfer
of the shares was a sham.
- On
17 May 2011, the CBA advanced $1 million to the Healthzone loan account. Later
the same afternoon, the $1 million was transferred
to a CBA account in the name
of the applicant and his wife.
- The
CBA approved the loan and advanced the funds, believing that the funds were to
be on-lent to the applicant to purchase Healthzone
shares.
- On
18 May 2011, $901,750.08 was withdrawn from the applicant’s bank account.
An email was sent from the applicant to Mr Wu to
give a false impression that
the funds were to be used to pay for the shares, whereas the bulk of it was in
fact paid to Ms Harper.
On the same day, Ms Chan sent an email to the applicant
indicating that the CBA was awaiting the public announcement to confirm that
the
applicant had used the loan funds to purchase shares in Healthzone.
- As
we have indicated, the Crown alleged that the loan was obtained as a result of a
conspiracy between the applicant and Mr Wu to
deceive both the board of
Healthzone and the CBA as to the true purpose for the loan.
The
Crown Case on Counts 2-3 - Authorising the Making Available of Information
Relating to the Affairs of a Corporation that was Knowingly
False or Misleading
in a Material Particular
- Following
the email sent by Ms Chan to the applicant on 18 May 2011 (see [19] above), the
Crown alleged that it became clear to the
applicant that Ms Chan was monitoring
the situation and awaiting an announcement with respect to the applicant’s
purchase of
shares with the loan funds.
- The
applicant forwarded the email of 18 May 2011 to Mr Wu who suggested that the
applicant prepare an Appendix 3Y Notice.
- On
14 June 2011, the applicant caused two announcements to be made - a Healthzone
market update and an Appendix 3Y Notice to be published
on the ASX. Both
announcements stated that the applicant had purchased 813,131 Healthzone shares
at $0.40 per share. Each announcement
was drafted by the applicant and then sent
to Mr Guy Robertson, the company secretary, with instructions to lodge each
announcement
on the ASX immediately.
- It
was the Crown case that the announcements were false or misleading in a material
particular because, at the time of lodgement,
the applicant had not purchased
813,131 Healthzone shares.
- On
21 June 2011, Mr Robertson emailed the applicant stating that the Appendix 3Y
Notice had been lodged, but that the current share
registry did not reflect the
share acquisition that had been announced. The applicant replied to Mr Robertson
that he would lodge
the necessary documents.
- In
June 2011, the applicant took steps (as noted at [16] above) to create the false
impression that the applicant was purchasing Healthzone
shares.
- It
was the Crown case that the arrangements between the applicant and Mr Wu were a
sham to give the false appearance that the applicant
had purchased the
Healthzone shares, thereby concealing his misappropriation of the $1 million
director’s loan.
The Crown Case on Counts 4-9 –
Falsification of Books Affecting or Relating to the Affairs of
Healthzone
- On
12 May 2011, the applicant sent an email to himself from his Healthzone email
address to another email address which included the
following chain of
legitimate emails:
- (a) An email
from Mr Fuggle of Baker & McKenzie to Mr Wu dated 3 May 2011, sent at
5.04pm. A copy of this email is Attachment
A1.
- (b) The second
email was an email from Mr Wu to Ms Chan dated 4 May 2011, sent at 4.46pm. A
copy of this email is Attachment A2.
- (c) The third
email was one from Ms Chan to Mr Wu dated 4 May 2011, sent at 6.45pm. A copy of
this email is Attachment A3.
- (d) The fourth
email was an email from Mr Wu to Ms Chan dated 10 May 2011, sent at 1.00pm. A
copy of this email is Attachment A4.
- On
12 May 2011, at 9.46am, the applicant forwarded to Ms Harper amended copies of
the emails A1, A2, A3 and A4. Attachment B1 is the
amended copy of Attachment
A1. The red marking indicates deletions from the original, whilst the purple
typescript shows additions.
That email was the subject of Count 4.
- Attachment
B2 is the amended copy of the email which is Attachment A2. Once again, the
amendments are shown by the red deletions and
the purple inclusions. This email
was the subject of Count 5.
- Attachment
B3 is the altered copy of Attachment A3. This document was the subject of Count
6.
- Attachment
B4 is the altered copy of Attachment A4. This was the subject of Count 7.
- Attachment
B5 is an amended version of minutes of a telephone directors’ meeting of
Healthzone resolving to provide financial
assistance to the applicant. Although
we have not included the original as an attachment, the amendments are evident
in the altered
document. This document was the subject of Count 9.
- On
12 May 2011, the applicant sent an email to Ms Harper attaching a document which
was an altered version of an email from Ms Chan
to Mr Wu and others at 12.32pm
on 2 May 2011. A copy of the document forwarded is Attachment B6. The
alterations and additions are
apparent from the document. It was this document
which was the subject of Count 8.
Rule 4 Criminal Appeal Rules
(NSW)
- As
will be seen, of the 13 grounds of appeal against conviction, 12 of them
(grounds 1(a)-(d), 2(a)-(e) and 3(a)-(c)) contain propositions
which were not
advanced by counsel who appeared for the applicant at trial.
- This
Court determines grounds of appeal, whether relied upon as of right or by leave,
in accordance with ss 5 and 6 Criminal Appeal Act 1912 (NSW) (Criminal
Appeal Act). Rule 4 Criminal Appeal Rules (NSW) requires the
leave of the Court for a ground of appeal to be taken with respect to a
direction, omission to direct, or decision as
to the admission or rejection of
evidence unless objection was taken at the trial to the direction, omission, or
decision by the
party appealing.
- The
Crown submitted that r 4 applied with respect to the applicant’s
conviction grounds.
- Mr
Glissan QC, for the applicant, submitted that r 4 has no real role to play in
this case because of ground 4 which alleged incompetent
representation of the
applicant at trial. It was submitted, as well, that a number of the grounds did
not fall squarely within the
parameters of r 4 so that the provision was not to
be applied in any event.
- Accordingly,
the application of r 4 will play a major part in the determination of the
applicant’s appeal.
- With
respect to r 4, McHugh J said in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR
297 at 319; [1999] HCA 37 at [72]:
“There is no case for the grant of leave under r 4 unless the Court of
Criminal Appeal is satisfied that the appellant has
an arguable case that the
trial judge has made an error of law or is satisfied that the appellant’s
conviction is otherwise
a miscarriage of justice. Satisfying the Court that
there is an arguable case is extremely difficult where the appellant has failed
to object to evidence or failed to ask for a direction concerning evidence. In
such cases, the trial judge has made no error of law
because he or she has not
been asked for a ruling. Consequently, an appeal can only succeed if the Court
of Criminal Appeal is satisfied
that the admission of the evidence or the
failure to give the direction has caused a miscarriage of justice, proof of
which lies
on the appellant.”
- This
and other authorities in relation to r 4 were collected by Heydon JA (as he then
was) in R v Button; R v Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242 at 253-255;
[2002] NSWCCA 159 at [31]- [35]. It is also worth repeating the observations of
Mahoney JA (as he then was) in R v Jeffrey (Court of Criminal Appeal
(NSW), 16 December 1993, unrep):
“In my opinion, this principle plays an important part in the criminal
trial process. It is important that any objection to
the summing-up or that any
defect or omission at the trial which can be cured or mitigated by steps taken
at the trial, be raised
at the time of the trial. The judge should be asked to,
and should have the opportunity to, correct any error or deficiency of this
kind. ... But it is important that, if a citizen is to be tried, he be tried
once and for all. The evil both of objections ‘held
in reserve’ and
raised only on appeal and of second and subsequent trials is great.
Errors will occur and r 4 provides for them. But unless there be a convincing
reason why the matter was not raised at the trial and
unless the possibility of
real injustice appears, an accused should be held to what was done by or for him
at trial level. Not infrequently
this Court is asked to act under r 4 when the
reason why the defect was not dealt with at the trial has not been established
and
where it is at least possible that there were tactical reasons why it was
not. It is not easy for the court on appeal to satisfy
itself that the reason
why the matter was not raised was error rather than choice. In such
circumstances, the court should be slow
to act under r 4. In the end, the court
must exercise the power given to it by r 4 according to the merits of the
individual case.
However, in my opinion, in exercising that power, the court
should keep steadily in mind the function which r 4 performs in the criminal
trial process.”
- In
ARS v R [2011] NSWCCA 266, the Court (Bathurst CJ, James and Johnson JJ
agreeing) referred to McHugh J’s statement in Papakosmas v The Queen
and then continued at [148]:
“Subsequent cases have established that the following matters are
important in considering the operation of r 4:
The requirements of r 4 are not mere technicalities. The Criminal Appeal Act
does not exist to enable an accused who has been convicted on one set of issues
to have a new trial under a new set of issues which
could or should have been
raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R
340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123
A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].
The appellant must establish that he or she has lost a real chance (or a chance
fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at
[20]- [21].
A failure by counsel to take objection or to raise an issue on summing-up may be
explicable by the fact that counsel said nothing
hoping to gain an advantage at
a later stage, or that counsel took no objection as, in the atmosphere of the
trial, counsel saw no
injustice as to what was being done: Germakian v R
[2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]- [13]; Sanchez v R [2009]
NSWCCA 171; (2009) 196 A Crim R 472 at [58]- [61].
An unexplained failure to take the point at the trial is usually a reasonably
reliable indicator of the fairness and adequacy of
the summing-up: Tekely v
R [2007] NSWCCA 75 at [88], [130].”
Grounds 1(a) and
3(a) – The Duplicity Grounds
- In
considering these grounds, it is necessary to pay some regard to the manner in
which the Crown put its case. The Crown opened on
the basis that the agreement
between the applicant and Mr Wu was to obtain the loan by deceiving both the CBA
and Healthzone. Thus,
the following remarks were made during the course of
opening the Crown case:
“i. ... the Crown case in summary in relation to count 1
is that the accused conspired with Michael Wu ... to obtain a financial
advantage, namely a million dollars ... the Crown allegation is that the million
dollars had been lent by the Commonwealth Bank to
Healthzone, the company, for a
specific purpose. The directors of Healthzone, the company, then on lent the
money, that is a corporate
loan, to Mr Roach, one of their directors, again for
a specific purpose. That purpose was to enable Mr Roach to buy shares in
Healthzone.
The Crown alleges that the accused conspired with Mr Wu, that is
they entered into an agreement, an illegal agreement, to instead
– that is
not to buy shares, but instead for Mr Roach to use that money to give to his
sister so that she could purchase a
family home for her, her husband and their
children;
ii. It is in effect a financial fraud through a conspiracy in
agreement with another to use this money for a dishonest purpose;
iii. The Crown case is that Mr Wu and the accused in fact
reached an agreement to deceive the bank, to deceive the board for the
money to
be used for a purpose other than buying shares in
Healthzone.”
- At
the conclusion of the evidence, the Crown made the following submissions to the
trial judge in the absence of the jury concerning
the need for a unanimity
direction:
“... it probably does not arise because the Crown case, I think, is that
it is either both or neither. That is that either
the board and the bank were
deceived or neither of them were deceived and either there was an agreement in
relation to both or there
was not. It seems the two rise and fall together but
just to curtail any argument at some later stage, if there is to be one, the
Crown position is this: that the jury must be unanimous in relation to the
particular of the conspiracy. That is they have to either
unanimously agree that
both the board and the bank were deceived or unanimously agree that either the
bank was deceived or the board
was deceived. We can’t have six deciding
the bank was deceived but not the board and six deciding the other way because
that
would not amount to a conspiracy.”
- After
this discussion, the Crown said the following in the closing address to the jury
in respect to Count 1:
“But the real thing you have to decide for count 1 is, were the board and
the bank deceived – was there a conspiratory
agreement to deceive the
board and the bank ... as long as you’re satisfied of one of those things,
that is, either the bank
was deceived, or the board was deceived. You’ll
notice there’s only one count – conspiracy count, count 1, and
that
count doesn’t say deceive the board, or deceive the bank. The Crown case
is – and this probably won’t come
as any surprise to you –
that the result of the agreement between Mr Wu and the accused was not to tell
anyone the truth. That’s
why there aren’t two counts. We’re
not saying there’s a separate conspiracy to deceive the bank, and a
separate
conspiracy to deceive the board. The Crown says this is one count. And
the Crown says, on the evidence, the effect of that agreement
– which was,
the Crown says, put in place by these two men, Mr Wu and Mr Roach – was
that nobody was told the truth.
So one conspiracy acted on by these two gentlemen, the effect of which, both the
board and the bank was deceived. Now, I’m
telling you all that for this
reason; the Crown says you’ll either be satisfied both were deceived or,
on the evidence you
wouldn’t be satisfied that either were deceived.
It’s a little difficult to envisage in the circumstances of this case
you’d be satisfied that Ruth Chan was deceived, but not the board –
or that the board was deceived and not the bank.
It would seem to me, and
it’s a matter for you, that it either has to be both or neither.
If, though, you reach a different view, and for some reason you’re
satisfied that the bank was deceived, but not the board
– or the board was
deceived and not the bank – so if amongst the 12 of you you’re not
satisfied both were deceived
... then I suggest to you – and I expect your
Honour will direct you about this – you have to be unanimous in relation
to your verdict.
And for count 1 you have to be unanimous, because for count 1 the agreement was
that nobody was to be told the truth, can I suggest
to you, you have to be
satisfied unanimously as to who was deceived. So, for example, six of you
can’t say, ‘He’s
guilty of count 1 because he deceived the
board,’ and the other six of you can’t say, ‘He’s guilty
of count
1 because he deceived the bank’. All 12 of you have to agree in
relation to the particular body that was deceived, if any.
So that’s the
long-winded way of saying, for count 1, you have to be unanimous not just in
relation to a deception, and an
agreement – the elements I’ll come
to in a moment – but you have to be unanimous in relation to the
particular,
that is, who in particular was deceived.
Can I suggest to you again that the Crown’s submission is that 12 of you
would unanimously decide on the evidence that both
the board and the bank, and
indeed, everybody else was deceived because that was the agreement – not
to tell anyone the truth.”
- The
trial judge gave written directions as to the elements of the
offence:
“The Crown must prove the following elements beyond reasonable doubt:
1. The accused and at least one other person conspired to
dishonestly obtain a financial advantage, namely a $1 million loan, by
deception;
2. The accused intended that an unlawful act would be carried
out.
‘Conspiracy’: is an agreement between two or more persons to
do an unlawful act.
To establish a conspiracy the Crown has to prove beyond reasonable doubt:
1. That there was in fact an agreement between the accused and
at least one other (here Ge Wu) to dishonestly obtain a financial
advantage
(namely a $1 million loan) by deception; and
2. That the accused participated in that agreement in the sense
that:
(a) he agreed with Mr Wu that the
unlawful objective of the conspiracy should be carried out; and
(b) at the time of agreeing to this, he intended that objective
should be carried into effect.
As to the first of these matters, namely, whether there was an agreement of the
kind alleged by the Crown: an agreement does not
have to be reached by any
formal means. It does not have to be in writing or even someone saying ‘I
agree’ for there
to be an agreement. As you will know from your own
experience, many agreements are made informally and people often enter into
agreements
without there being any express statements to that effect between
them.
The form of the agreement does not matter. In this area of the law, what is
necessary for there to be an agreement is for two or
more persons to concur
either by words or by conduct in a common design, each having the intention to
bring about the unlawful object
of the agreement. If you are satisfied beyond
reasonable doubt that there was an agreement to dishonestly obtain a financial
advantage
by deception, then that is, in law an agreement to do an unlawful
act.
As to the second of the matters which the Crown has to prove – in order
for the accused to have participated in the agreement,
he must have known what
was proposed as the objective of the agreement and must have intended to carry
that objective into effect.
The Crown must satisfy you beyond reasonable doubt of these matters.
It is not necessary for the Crown to prove that the agreement was carried into
effect, but it is necessary for the Crown to prove
that the accused intended
that it be carried into effect.”
- Thereafter
her Honour, referring to the written directions, gave the following additional
directions in her summing-up:
“So let us pause there, and there is something that I want to say to you
that is not on this document, and that is this –
the unlawful act alleged
in count one is dishonestly obtaining a $1 million loan by deception. The Crown
case is that the agreement
was to deceive the bank and the board of directors.
If you are satisfied beyond reasonable doubt that the Crown has established the
element of count one – that is, elements one and two set out there on p 1
– you will also have to be unanimous as to
the entity or entities
deceived.
You would have to either be unanimous that the agreement was to deceive the
board and the bank, or unanimous that there was an agreement
to deceive the
bank, or unanimous that there was an agreement to deceive the board. So what I
am explaining to you that it is most
important that not only are you unanimous
in relation to the elements that are set out at one and two, but that you are
unanimous
in relation to the particular as to the agreement to deceive the Board
and bank, or unanimous that the agreement was to deceive the
bank, or unanimous
that the agreement was to deceive the Board. It is not sufficient if six of you,
for instance, decided that there
was an agreement to deceive the Board, and then
six of you decided well, no, there was an agreement to deceive the bank. So you
have
to be unanimous in relation to that aspect – that is, the particular.
On the Crown case, as I say, the Crown case is that you
would be unanimous that
the agreement was to deceive both the bank and the Board, but if you are not
unanimous about that, you would
have to be unanimous that it was either one or
the other, or that the agreement related to deceiving one or the
other.”
The Parties’ Submissions
a The applicant
- Apart
from generally criticising the conduct of counsel in the Court below and
submitting that the applicant should not have been
charged with conspiracy
rather than the underlying offence proscribed by s 192E Crimes Act 1900
(NSW), senior counsel for the applicant made no substantive submission on these
grounds other than to say it is a case of “latent
duplicity”.
- In
the written submissions filed on behalf of the applicant, it was submitted that
the case was opened on a number of alternative
bases by the Crown. He submitted
that the first involved an allegation that the applicant deliberately misled the
CBA and obtained
a loan on the basis of that deception. He suggested for that
case to succeed, the Crown needed to establish that the applicant obtained
the
loan and assumed the associated debt, and that could not be established because
the loan was a “non-recourse loan”.
It is by no means clear why it
was necessary to assume the debt as distinct from receiving the funds to obtain
a financial advantage,
nor is it an element of the offence that the conspiracy
be successful or that an overt act be performed in furtherance of it. In
any
event, that proposition is not the subject of any ground of appeal.
- It
was submitted that the Crown suggested as an alternative that the applicant and
Mr Wu conspired to defraud Healthzone by misleading
the board into borrowing
from the CBA on a false basis. It was submitted that formulation excluded the
CBA transaction and evidence
would need to have been limited to that relating to
the applicant’s conduct in relation to the board.
- It
was also submitted that the Crown sought to rely on a third formulation, namely,
that both the CBA and Healthzone were duped. It was submitted that this
did “not withstand critical analysis” and in any event contained
“inherent
latent duplicity as to the victim of the alleged
conspiracy”. It was not made clear why it did “not withstand
critical
analysis”. The reference to the victim of the conspiracy
presumably referred to the person who was deceived, be it either the
board of
Healthzone, the CBA or both.
- The
applicant submitted that the remarks of the Crown to which we have referred at
[45] above, demonstrated that the Crown was aware
of the duplicity problem. He
also referred to the fourth and fifth sentences of the passages from the
summing-up which we have extracted
at [47] above, but stated that no reference
to these matters was made in the written statements of the elements of the
offence. That
submission ignores the fact that the trial judge’s remarks
were made in the context of explaining the elements set out in the
written
direction to the jury.
b The Crown
- The
Crown submitted that its case, as clearly articulated, was that the applicant
conspired with Mr Wu by entering into a single agreement,
the purpose of which
was to dishonestly obtain a single advantage of a $1 million loan by deception.
The overt acts involve the deception
of both the CBA and Healthzone. The Crown
referred to the passages in opening which we have extracted at [43] above.
- The
Crown submitted that the Crown case was that the applicant and Mr Wu agreed that
the loan funds obtained would not be used to
purchase Healthzone shares as
represented but, rather, for the purpose of enabling the applicant to pay his
personal debts.
- The
Crown submitted that for the applicant to achieve this purpose, both the board
of Healthzone and the CBA had to be deceived. There
was no question of duplicity
as the Crown was relying on a single offence which involved the deception of
both the CBA and Healthzone.
- The
Crown accepted that in dealing with the documentary evidence, reference was made
from time to time to deceiving Healthzone and
on other occasions to deceiving
the CBA. The Crown submitted that this was in the context of individual pieces
of evidence which
dealt with deception of the board of Healthzone on the one
hand, and the CBA on the other.
- The
Crown submitted that it raised the need for the unanimity direction (see [44]
above) “out of abundant caution”. It
referred to the decision of
this Court in Pratten v R [2014] NSWCCA 117 which stated at [36] that
“the question of ‘unanimity can arise when only one offence is
charged and only one offence
is proved but the jury is presented through the
evidence led with more than one route to determine guilt’”. The
Crown
submitted that it was plain from the subsequent address that the Crown
case was that both the CBA and the board of Healthzone were
deceived.
Consideration
- The
indictment on its face is not duplicitous in the sense that it does not charge
the applicant with more than one offence (see Walsh v Tattersall [1996] HCA 26; (1996)
188 CLR 77 at 84; [1996] HCA 26). The offence charged is a single offence of
conspiracy to, by deception, dishonestly obtain a $1 million loan.
- The
applicant contended that there were in effect two conspiracies, one to deceive
the CBA and the other to deceive Healthzone. However,
as the indictment was
framed, there was only one agreement to obtain a financial advantage by
deception, although theoretically only
the CBA or Healthzone may have been
deceived in the course of carrying out the conspiracy. In this context, it must
be remembered
that the elements of a common law conspiracy are an agreement to
do the unlawful act with the intention that the common design be
carried out.
The actual commission of an overt act is not an element of the offence (see
The Queen v LK (2010) 241 CLR 177 at 205-208, 228; [2010] HCA 17 at [57],
[62]-[65], [117]). As French CJ pointed out in The Queen v LK (at [57])
citing The Queen v Rogerson [1992] HCA 25; (1992) 174 CLR 268 at 281; [1992] HCA 25,
“the commission of an overt act was ... a basis from which the criminal
agreement could be inferred”.
- However
the applicant also contended that this was a case of latent duplicity, the
latent duplicity emerging in the summing-up when
it was suggested that it would
be open to the jury to find that the agreement was to deceive the CBA and
Healthzone, or an agreement
to deceive the CBA or an agreement to deceive
Healthzone.
- The
written direction given by the trial judge to the jury correctly identified the
elements of the offence, stating, as we have pointed
out, that it was not
necessary for the Crown to prove that the agreement was carried into effect, as
distinct from proving that the
conspirators intended it to be carried into
effect. However, it is correct, as the applicant pointed out, that ultimately
she left
the matter to the jury on the basis of three alternative agreements
(see [47] above).
- The
concept of latent duplicity or latent ambiguity was explained by Dixon J in
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 486; [1937] HCA 77 as referring to
circumstances where “the facts or the alleged facts disclosed a latent
ambiguity in the complaint”. In
such a case, his Honour said at 489 that
the prosecutor “should be required to identify the transaction” on
which he
or she relies.
- In
S v The Queen (1989) 168 CLR 266; [1989] HCA 66, Dawson J stated at 277
that “where there is real ambiguity and the point is taken ... failure to
correct the ambiguity means
that the accused has not had a proper trial and
there is, for that reason, a substantial miscarriage of justice”. Gaudron
and
McHugh JJ explained the rationale for the rule in the following terms at
284-285 (citations omitted):
“The rule against duplicitous counts in an indictment originated as early
as the seventeenth century. See, e.g., Smith v. Mall; R. v.
Stocker. It may be, as suggested by Salhany in ‘Duplicity — Is
the Rule Still Necessary?’, Criminal Law Quarterly, vol. 6 (1963)
205, at pp. 206-207, that the rule grew out of the strict formalities associated
with criminal pleadings at a time
when the difference between misdemeanour and
felony was the difference between life and death. However, the rule against
duplicitous
counts has, for a very long time, rested on other considerations.
One important consideration is the orderly administration of criminal
justice.
There are a number of aspects to this consideration: a court must know what
charge it is entertaining in order to ensure
that evidence is properly admitted,
and in order to instruct the jury properly as to the law to be applied; in the
event of conviction,
a court must know the offence for which the defendant is to
be punished; and the record must show of what offence a person has been
acquitted or convicted in order for that person to avail himself or herself, if
the need should arise, of a plea of autrefois acquit
or autrefois convict.
...
The rule against duplicitous counts has also long rested upon a basic
consideration of fairness, namely, that an accused should know
what case he or
she has to meet.
...
The matters which go to the orderly administration of justice are not unrelated
to the consideration that a duplicitous count may
be productive of prejudice. If
the matter proceeds to trial, there is the possibility that evidence will be
wrongly admitted or that
incorrect directions will be given to the jury. There
is also the possibility that a jury, no matter how carefully directed, may
reason from the number of offences charged that the accused must be guilty of at
least one. However, it may be going too far to equate
prejudice with the
difficulty of raising a defence of autrefois acquit or autrefois convict, and,
in any event, such problems as
there are in that area may be of less
significance in those jurisdictions where the criminal law is codified than in
common law jurisdictions.
See, in relation to s. 17 of the Criminal Code
(W.A.) (‘the Code’), O’Halloran v. O’Byrne,
especially per Wickham J.”
See also Walsh v Tattersall
at 105-107 per Kirby J.
- Related
to this issue is the requirement that the precise nature of the conspiracy be
carefully analysed prior to the commencement
of the proceedings and the count
must comply with the general rule of charging one offence only (Gerakiteys v
The Queen [1984] HCA 8; (1984) 153 CLR 317 at 333; [1984] HCA 8).
- In
the present case, the Crown opened and closed its case on the basis that the
agreement between the alleged co-conspirators was
to deceive both the CBA and
Healthzone. The trial judge gave the direction because of the concern that the
jury might form the view
that the offence was made out whilst not agreeing as to
who was deceived.
- With
respect, it would have been more desirable to have informed the jury that for
the case put by the Crown to be made out it was
necessary for them to be
satisfied beyond reasonable doubt that the agreement was to deceive both the CBA
and Healthzone and that
it was the intention of the applicant to give effect to
this agreement. The summing-up, suggesting the possibility that there were
three
alternative agreements which might prove the offence, gave rise to a problem of
latent duplicity or ambiguity.
- Nonetheless,
no objection was taken at the trial, either at the time the issue was raised by
the Crown, nor to the portion of the
summing-up to which we have referred. In
these circumstances if r 4 of the Criminal Appeal Rules (NSW) applies, it
is necessary for the applicant to obtain leave to raise this ground.
- Although
there has been some debate as to whether r 4 has application in a case of latent
duplicity (see the cases cited in ARS v R at [152]), in our opinion it
does have application in the circumstances of the present case. The problem did
not arise from the indictment
itself, or from the way the Crown put its case,
but rather from the direction which was given because of the concern for a
unanimous
verdict. In these circumstances, r 4 which expressly deals with
failure to object to directions by the trial judge does have application.
- In
the present case, we do not think that there was a miscarriage of justice. The
case was framed from beginning to end as an agreement
to obtain an advance from
the CBA to Healthzone, and then to the applicant, by deceiving both the CBA and
Healthzone as to the purpose
of the advance. Further, the fraudulent transaction
could only succeed if both the CBA and Healthzone were deceived and there was
no
evidence to suggest that either Healthzone or the CBA were aware of the true
purpose of obtaining the loan. The fact that each
was deceived of itself
provides evidence that that was what was intended by the parties to the
agreement.
- Further,
even in the passage complained of in the summing-up, the trial judge emphasised
on two occasions that the Crown case was
that there was an agreement to deceive
both the CBA and Healthzone.
- For
these reasons, it does not seem to the Court that the remarks by the trial
judge, or for that matter those of the Crown, led to
a miscarriage of justice in
the sense that the applicant lost a real chance of acquittal. In these
circumstances, leave to raise
this ground should be refused (Picken v R; R v
Picken [2007] NSWCCA 319 at [19]- [22]; ARS v R at [146]-[148]).
- We
would only add that this conclusion does not depend on an assessment of trial
counsel’s competence but rather on an evaluation
of whether what occurred
gave rise to a miscarriage of justice. That being said, there is nothing to
suggest that the applicant was
not represented at the trial by competent trial
counsel.
Ground 1(b) – Complaint Concerning Joinder of
Offences in the Indictment
- Counts
2-9 all related to offences under various provisions of the Corporations
Act. The first (conspiracy) count, was a charge of a common law conspiracy
to commit an offence contrary to s 192E Crimes Act.
- By
ground 1(b), the joinder of these charges was said to be
“impermissible” and the applicant was said to have been deprived
of
a “fair trial according to law and of a fair chance of acquittal” by
the joinder. This ground of appeal continues
by asserting that the joinder meant
that the applicant was “thereby” precluded from trial on the
conspiracy count by
judge alone and therefore lost the chance of acquittal.
- The
applicant submitted that each of the Commonwealth statutory offences could have
been dealt with summarily and that each of them
was “for a technical
breach of the law, unrelated to the conspiracy or to the co-conspirator who gave
evidence for the prosecution”.
- Interpolating
here, to the extent that the expression “technical breach of the
law” may be thought to connote a breach
which was trivial or of some
diminished importance, we disagree. As will be seen when considering grounds
1(d) and 3(b) relating
to the books of the company, any characterisation of
those offences which seeks to trivialise them is wholly inapt and unjustified.
Further, as shall also be seen, the critical assertion by the applicant that the
Commonwealth statutory offences were “unrelated”
to the conspiracy
or to the co-conspirator who gave evidence for the prosecution is also
flawed.
- The
applicant submitted, based on the flawed premise that there was no relationship
between the falsified records of the company and
the conspiracy charge, that the
joinder of the Commonwealth and State offences meant that there was introduced
voluminous and confusing
material relating to the Commonwealth offences which
affected the fairness of the trial in essence because, so the applicant
contended,
the volume and nature of the material effectively meant that it was
too complex for a jury to comprehend. This argument also lies
at the heart of
grounds 3 and 4 which are considered below.
- The
applicant submitted that the proper course to have been taken would have been
for the indictment to be severed and for the trial
on the conspiracy count to
have been separately heard and determined from the Commonwealth statutory
offences. The applicant was
forced to concede, however, that counsel for the
applicant did not take any point in relation to this at trial.
- Any
such objection to the joinder of the offences, had there been a valid basis for
it, should have been taken before the trial. In
this context, s 29(1)
Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act)
provides that:
“A court may hear and determine together
proceedings related to 2 or more offences alleged to have been committed by the
same
accused person in any of the following circumstances:
(a) the accused person and the prosecutor consent,
(b) the offences arise out of the same set of
circumstances,
(c) the offences form or are part of a series of offences of
the same or a similar character.”
- Section
29(1) is an important provision designed to promote and facilitate the fair and
efficient disposition of criminal justice. It affords the
court a broad power to
hear and determine related offences. In this regard, as Mr Glissan QC accepted,
the expression “arise
out of” in subsection (b) is of particularly
broad ambit. It is an expression which is used in other contexts to promote the
efficient resolution of related disputes: Francis Travel Marketing Pty Ltd v
Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165.
- Section
29(3) Criminal Procedure Act is also important:
“Proceedings related to 2 or more offences or 2 or more accused persons
may not be heard together if the court is of the opinion
that the matters ought
to be heard and determined separately in the interests of
justice.”
- In
the context of s 29(3), this Court has observed that the interests of justice
extend beyond the interests of an accused person, with the interests of the
Crown, witnesses and the public to be considered as well: Osman v R
[2006] NSWCCA 196 at [22]. In a different context, the High Court of
Australia has observed that the interests of justice will often pull in
different directions,
involving consideration of the interests of an appellant
(an accused person) as well as the interests of the Crown and the community:
Kentwell v The Queen (2014) 252 CLR 601 at 614; [2014] HCA 37 at
[32].
- In
addition to the broad power given to the court to hear and determine proceedings
relating to two or more offences which arise out
of the same circumstances, the
Crown has a very broad discretion to decide upon what offences an accused is to
be brought to trial
by way of indictment: R v McCready (1985) 20 A Crim R
32 at 39. In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 620; [1998] HCA 57
at [30], McHugh, Gummow and Hayne JJ said that (footnote
omitted):
“The decision about what charges should be laid and
prosecuted is for the prosecution. Ordinarily, prosecuting authorities will
seek
to ensure that all offences that are to be charged as arising out of one event
or series of events are preferred and dealt with
at the one time. Nothing we say
should be understood as detracting from that practice”.
- This
observation in Pearce v The Queen, together with the terms of s 29
Criminal Procedure Act, provides a complete and powerful answer to the
applicant’s submission that the joinder of Commonwealth and State charges
was
in some way “impermissible”. The applicant cited no authority in
support of that contention and it is clearly wrong as
a matter of law.
- There
is no doubt, in our opinion, that the Commonwealth statutory offences charged
arose out of the same set of circumstances as
the conspiracy count. As submitted
by the Crown, the conduct in Counts 2 and 3, being the provision of misleading
information to
the ASX directly related to Count 1 and was undertaken to ensure
that neither the Healthzone board nor the CBA detected that the
applicant did
not or would not use the loan funds for the purposes for which they were,
ostensibly, borrowed. These market releases
were calculated to create the false
appearance that the applicant had purchased shares in Healthzone with the loan
funds and, as
the learned trial judge noted in her remarks on sentence, Counts 2
and 3 were committed in an attempt to avoid detection of the misappropriation
of
the $1 million loan.
- The
Crown also submitted, correctly in our opinion, that Counts 4 to 9 related to
the other Counts on the indictment, involving as
they did the falsification of
documents to give the misleading appearance that the applicant had obtained
financial approval from
the CBA supported by Healthzone’s board for a
personal loan, which he could use to pay the debt he owed to his sister.
- The
Crown also submitted that it would have been completely impracticable for Count
1 to have been tried or dealt with separately
from the balance of the charges as
all of the evidence in relation to Count 1 would have to be led in any trial for
Counts 2-9 in
any event. It is precisely to avoid such impracticability and to
promote efficiency, including in the use of limited judicial resources,
that s
29(1) Criminal Procedure Act permits the joinder of charges such as
occurred in the present case. Nor was there any reasonable basis for the Court
to form an
opinion that the matters ought to have been “heard and
determined separately in the interests of justice” under s 29(3)
Criminal Procedure Act.
- The
Crown’s submission in this regard was reinforced by the unchallenged
affidavit of Mark Dennis who appeared for the applicant
at trial. Mr Dennis said
in his affidavit that:
“I did not demur to Counts 4 to 9
inclusive as I considered the evidence in relation to them to be also relevant
and admissible
as to Count 1. It thus made sense that those counts (and also
Counts 2 and 3) be tried together. I considered that there was no prospect
of
severance of the indictment.”
- In
the absence of any challenge, and based upon our own analysis of the matter,
there is no basis to question the correctness of the
approach taken.
- There
was no error and ground 1(b) should be rejected.
Ground 1(c) -
Complaint Concerning Joinder of Counts Alleging Conspiracy and Substantive
Offences
- Ground
1(c) contends that the applicant was denied a fair trial by the joinder of
substantive offences to a conspiracy count in the
same indictment,
“contrary to law and accepted practice”.
- This
ground, as amplified in written submissions, was largely repetitive of the
complaint contained in grounds 1(b) and 2, namely
that the joinder rendered the
trial longer and more complex than it otherwise would have been, including by
leading to the introduction
of prejudicial evidence, the effect of which was
said to be disproportionate to any evidentiary value it may have had.
- An
aspect of the applicant’s submission was that the joinder violated what a
majority of the High Court in The Queen v Hoar (1981) 148 CLR 32 at 38;
[1981] HCA 67 described as “a practice, if not a rule of law, that a
person should not be twice punished for what is substantially the same
act”, the Court noting that it had “long been established that
prosecutions for conspiracy and for a substantive offence
ought not to result in
a duplication of penalty”. Their Honours were speaking of a very different
circumstance, in our opinion,
to the present case, and the applicant’s
submission was wholly at odds with the submission made under ground 1(b) that
the
Commonwealth charges that had been joined were wholly unrelated to the
conspiracy count.
- The
fact that there was, as we have found, a sufficient nexus for the purposes of s
29(1) and (3) Criminal Procedure Act to permit them to be joined did not
attract whatever principle might otherwise be thought to derive from The
Queen v Hoar, it being recalled that the majority was in that case only
referring to a “practice” and the decision at most stands
for the
Court’s observation (at 38) that “[g]enerally speaking, it is
undesirable that conspiracy should be charged when a substantive offence
has been committed and there is a sufficient and effective charge that
this
offence has been committed” (emphasis added).
- The
applicant also submits that the decision to include a charge of conspiracy was
“clearly a decision made improperly by the
[Commonwealth Director of
Public Prosecutions (CDPP)] for a forensic advantage, which had the effect of
depriving the applicant of
a fair trial”.
- No
application was made by the applicant in the District Court seeking to challenge
the appropriateness of a conspiracy charge in
this case. The Crown referred to
the affidavit of Mr Dennis who said he specifically considered this issue prior
to the trial but
did not consider the applicant would suffer any forensic
disadvantage given the central issue in the trial. Mr Dennis’ approach
was
understandable. The Crown case alleged an agreement between the applicant and Mr
Wu. It was open to the Crown to charge the applicant
with conspiracy. Further,
this was not a case where the Crown obtained any forensic advantage by charging
conspiracy in that statements
of Mr Wu made in furtherance of the conspiracy
would be admissible against the applicant in a manner which may disadvantage the
applicant.
Here, the Crown called Mr Wu to give evidence in the Crown case and
the applicant had the opportunity to challenge his evidence if
he saw fit to do
so.
- Mr
Dennis was not challenged on this evidence and, in the absence of any
application being made at the trial concerning the charging
of conspiracy, we
would reject this ground of appeal which required leave pursuant to r 4 Criminal
Appeal Rules (NSW).
- Subject
to the competence of counsel ground considered below, the applicant should be
held to the way the trial was conducted on his
behalf. A case for the grant of
leave pursuant to r 4 has not been made out and ground 1(c) must be
rejected.
Grounds 1(d) and 3(b) – The Emails the Subjects
of Counts 4-9 in the Indictment were not Books of Healthzone
The parties’ submissions
a The applicant
- Senior
counsel for the applicant submitted that the altered documents did not satisfy
the definition of “books of the company”,
submitting that “the
mischief that’s intended to be addressed [was] ... making some alteration
in relation to the affairs
of the company properly so-called”. He rejected
the proposition that one of the purposes of the provision was to prevent people
altering the records of company and using those altered records to conceal the
true position in relation to the company, submitting
that the aim is “to
preserve inviolate the records of the company from the company’s
perspective”.
- Senior
counsel for the applicant recognised that it had been conceded in the Court
below that the documents were in fact “books
relating to the
company”. He submitted that this concession should not have been
made.
- In
his written submissions, the applicant submitted that the “books”
relied upon were private emails passing between him
and his sister. He referred
to what was said on this issue by Austin J in Australian Securities and
Investments Commission v Rich (2005) 216 ALR 320; [2005] NSWSC 417.
That case, so far as relevant, concerned the admissibility into evidence of
certain records under s 1305(1) Corporations Act which provided as
follows:
“1305 Admissibility of books in evidence
(1) A book kept by a body corporate under a requirement of this
Act is admissible in evidence in any proceeding and is prima facie
evidence of
any matter stated or recorded in the book.”
- In
Australian Securities and Investments Commission v Rich, Austin J, after
reviewing the conflicting authorities on s 1305, came to the conclusion at [265]
that he should approach the application
of s 1305 in the case before him on the
basis that the word “kept” meant “retained or
held”.
- The
passages in his Honour’s judgment at [244]-[245] relied upon by the
applicant contained part of the analysis of earlier
cases reviewed by his Honour
in the course of reaching his conclusion at [265]. The other passages relied
upon at [293]-[296] concerned
the question of whether the documents sought to be
tendered were in fact “financial records” of the company. His
Honour’s
conclusion on that issue has no relevance to the present
case.
- Further,
it must be remembered that the wording of s 1307 Corporations Act is
different to that of s 1305. Section 1305 deals with books kept by a company,
whilst s 1307(1) refers to books affecting or relating to the affairs of the
company. The section is in the following terms:
“1307 Falsification of books
(1) An officer, former officer, employee, former employee,
member or former member of a company who engages in conduct that results
in the
concealment, destruction, mutilation or falsification of any securities of or
belonging to the company or any books affecting
or relating to affairs of the
company is guilty of an offence.
(2) Where matter that is used or intended to be used in
connection with the keeping of any books affecting or relating to affairs
of a
company is recorded or stored in an illegible form by means of a mechanical
device, an electronic device or any other device,
a person who:
(a) records or stores by means of that
device matter that the person knows to be false or misleading in a material
particular; or
(b) engages in conduct that results in the destruction, removal
or falsification of matter that is recorded or stored by means
of that device,
or has been prepared for the purpose of being recorded or stored, or for use in
compiling or recovering other matter
to be recorded or stored by means of that
device; or
(c) having a duty to record or store matter by means of that
device, fails to record or store the matter by means of that
device:
(i) with intent to falsify
any entry made or intended to be compiled, wholly or in part, from matter so
recorded or stored; or
(ii) knowing that the failure so to record or store the matter
will render false or misleading in a material particular other matter
so
recorded or stored;
contravenes this subsection.
(3) It is a defence to a charge arising under
subsection (1) or (2) if the defendant proves that he, she or it acted
honestly and
that in all the circumstances the act or omission constituting the
offence should be excused.”
- In
his written submissions, the applicant submitted that the emails did not affect
or relate to the affairs of Healthzone as they
were “misrepresentation[s]
to a non-commercial unrelated third party for purposes not involving the affairs
of the company
and certainly not affecting
them”.
b The Crown
- The
Crown referred to what it described as the expansive definition of affairs of
the company in s 53 Corporations Act. He submitted that each of the
documents the subject of the charge related to the affairs of Healthzone and the
fact that the applicant
“disseminated them by emailing them to his
sister”, did “not deprive the documents of their essential nature,
namely
relating to the affairs of the corporation”.
- The
Crown submitted that the documents in question “directly related to the
affairs of the company as they related to shareholding,
financial dealings by
the company with the bank and expenditure by the company”.
- It
was submitted that “[t]he alterations and the subsequent dissemination ...
gave the false appearance that the bank had agreed
to give the [applicant] a
personal loan of $1 million and that the board had resolved to approve that
arrangement”.
Consideration
- The
construction of s 1307, like any other statutory provision, must begin with a
consideration of the text itself which may require consideration of the context,
including the general purpose and policy of the provision, in particular the
mischief that it is seeking to remedy (Alcan (NT) Alumina Pty Ltd v
Commissioner of Territory Revenue (NT) [2009] HCA 41 ; (2009) 239 CLR 27 at 31 (French CJ)
and 47-47 (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41 at [4] ,
[47]).
- The
term “relating to” is an expression which has been described as
“extremely wide but ... also vague and indefinite”
and “all
that a court can do is to endeavour to seek some precision in the context in
which the expression is used” (Tooheys Ltd v Commissioner of Stamp
Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 at 620 per Taylor J; see also Kitto J at
618; [1961] HCA 35).
- In
Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510;
[2010] HCA 33, in dealing with the phrase “in relation to”, French
CJ and Hayne J stated at [25] that it was “a phrase that can
be used in a
variety of contexts, in which the degree of connection that must be shown
between the two subject matters joined by
the expression may differ”. They
also “accepted that ‘the subject matter of the inquiry, the
legislative history,
and the facts of the case’, are all matters that will
bear upon the judgment of what relationship must be shown” (see
also
Airservices Australia v Canadian Airlines International Ltd (2000) 202
CLR 133 at 219 (McHugh J); [1999] HCA 62 at [242]; see also the cases cited by
Fitzgerald JA in Oceanic Life Ltd v Chief Commissioner of Stamp Duties
[1999] NSWCA 416 at [56]; [1999] NSWCA 416; (1999) 168 ALR 211 at 224-225).
- The
legislative history provides little assistance. The section originated in s 83
Larceny Act 1861 (Larceny Act), 24 and 25 Vict, c 96 which
was in the following terms:
“83 Whosoever, being a Director, Manager, Public Officer,
or Member of any Body Corporate or Public Company, shall, with
Intent to
defraud, destroy, alter, mutilate, or falsify any Book, Paper, Writing, or
valuable Security belonging to the Body Corporate
or Public Company, or make or
concur in the making of any false Entry, or omit or concur in omitting any
material Particular, in
any Book of Account or other Document, shall be guilty
of a Misdemeanour, and being convicted thereof shall be liable, at the
Discretion
of the Court, to any of the Punishments which the Court may award as
herein-before last mentioned.”
- A
provision in somewhat similar terms was contained in s 166 Companies Act
1862, 25 and 26 Vict, c 89. However, the section only applied to a
“Director, Officer or Contributory of any Company wound-up”
under
that Act.
- The
Larceny Act provision was adopted in New South Wales by s 183 Criminal Law
Consolidation Act 1883 (NSW) (Criminal Law Consolidation Act), whilst
the Companies Act 1862 provision was adopted in s 217 Companies Act
1874 (NSW).
- The
Criminal Law Consolidation Act provision was inserted into the Crimes
Act 1900 (NSW) (s 175) but repealed in 2009. The Companies Act
1862 provision was adopted in successor legislation, but was amended in 1971
to exclude its limitation to the companies being wound-up.
Its present form,
subject to irrelevant amendments, can first be found in s 560 Companies (NSW)
Code 1981 (NSW).
- Such
Explanatory Memoranda as there are in relation to the provision and its various
amendments do not provide any assistance to the
question of construction which
arises in the present case.
- The
applicant placed some reliance on cases interpreting s 1305 and in particular
the reference in s 1305(1) to a “book kept
by a body corporate under a
requirement of this Act”. There are two difficulties with this
approach.
- The
first is that the width of the expression “kept by the company” or
“kept by a body corporate” has been
the subject of a degree of
judicial debate. In some cases, a narrow construction has been preferred. Thus
in Residues Treatment and Trading Co Ltd v Southern Resources Ltd [1989] SASC 1397; (1989)
52 SASR 54, Perry J in dealing with the equivalent section in predecessor
legislation (s 550(1) of the Companies (SA) Code) stated at 77 that
“it should be in the nature of a document or record which is in some way
maintained by the corporation in
a systematic or periodic fashion”. A
similar view was expressed by the Federal Court in Tubby Trout Pty Ltd v
Sailbay Pty Ltd (1992) 42 FCR 595 at 599-600, whilst a decision of the Full
Court of the Supreme Court of South Australia limited the section to books
“brought
into existence, by or on behalf of a company, and maintained in
its custody by virtue of an express obligation to do so imposed by
the [then]
Corporations Law itself” (Sheahan v Northern Australia Land and
Agency Co Pty Ltd (1994) 176 LSJS 257). On the other hand, a number of other
decisions have given the word “kept” what is described as its
“ordinary meaning”,
namely, to maintain and retain (The Duke
Group Ltd (in liq) v Pilmer (1994) 63 SASR 364; Valoutin Pty Ltd v Furst
[1998] FCA 339; (1998) 154 ALR 119; Caratti v R (2000) 22 WAR 527; [2000] WASCA 279;
R v Turner (No 17) (2002) 10 TasR 388; [2002] TASSC 18). The decisions
are summarised in Australian Securities and Investments Commission v Rich
(at [242]-[252]) and there is no need to consider them in any greater detail
in this judgment).
- The
second difficulty is that as referred to above, s 1307 does not use the
expression “kept or prepared by the company”
but rather
“affecting or relating to affairs of the company”. The expression
“affairs of a body corporate”
is defined in s 53 Corporations
Act so far as relevant in the following terms:
“53 Affairs of a body corporate
For the purposes of the definition of examinable affairs in
section 9, section 53AA, 232, 233 or 234, paragraph 461(1)(e),
section 487, subsection 1307(1) or section 1309, or of a
prescribed provision of this Act, the affairs of a body corporate
include:
(a) the promotion, formation,
membership, control, business, trading, transactions and dealings (whether alone
or jointly with any
other person or persons and including transactions and
dealings as agent, bailee or trustee), property (whether held alone or jointly
with any other person or persons and including property held as agent, bailee or
trustee), liabilities (including liabilities owed
jointly with any other person
or persons and liabilities as trustee), profits and other income, receipts,
losses, outgoings and expenditure
of the body”.
It can be seen that this definition extends in its terms to the expression
“affairs of the company” in s 1307(1).
- The
documents the subject of the charges prior to alteration contain advice to
Healthzone concerning the legality of Healthzone providing
financial assistance
to the applicant (the document the subject of Count 4), the email forwarding the
advice to Ms Chan of the CBA
(the document the subject of Count 5), the email
from Ms Chan to Mr Wu setting out the CBA’s further requirements (the
document
the subject of Count 6), a response from Mr Wu to Ms Chan supplying the
information (the document the subject of Count 7), a document
from Ms Chan to Mr
Wu recording the basis on which the CBA would be prepared to provide the loan to
Healthzone (the document the
subject of Count 8) and minutes of a
directors’ meeting of Healthzone approving the loan (the document the
subject of Count
9). The documents concerned transactions and dealings of
Healthzone and thus fall within s 53 Corporations Act.
- However,
it does not necessarily follow that the falsification of any document which
considers or refers to the affairs of the company
will be a document relating to
the affairs of the company within the meaning of s 1307. Section 1307 falls
within Pt 9.3 which deals with books of the company. The purpose of the division
is to make books that are required by the Corporations Act to be kept by
the company readily available and available for inspection (s 1300-s 1304), to
provide that the books kept by the company are admissible in evidence (s 1305),
to preserve the safety and physical integrity of books required to be kept by
the company (s 1306(3)) and to prohibit falsification of books affecting or
relating to affairs of the company (s 1307).
- It
follows from the context in which the provision appears that although s 1307 in
its terms extends beyond books which are required to be kept by the
Corporations Act, the section, in our opinion, is limited to books
forming part of the records of the company or any securities (defined in s 92
Corporations Act) belonging to the company, and there must be a
connection between those books and the company’s affairs.
- The
falsification of a record required to be kept by the company relating to its
affairs would clearly fall within the section, whilst
falsification of
correspondence between the company and third parties would not do so unless it
affected or related to the affairs
of the company as defined. Between these
extremes, it is necessary to consider individual books to ascertain whether they
fall within
the prohibition or not. There is no doubt that in the present case
the documents are “books”. “Books” are
defined in s 9
Corporations Act to include “a document”. Further, the
falsification of the minutes the subject of Count 9 is a falsification of a
document
required to be kept by the company by virtue of s 251A of the
Corporations Act and made available to members by virtue of s 251B. It
clearly falls within s 1307.
- The
remaining documents, advice from Healthzone’s solicitor and correspondence
between Healthzone and the CBA, were brought
into existence by Healthzone
or its banker for the purpose of the proposed loan by the CBA to Healthzone
and the subsequent loan to the applicant. Having regard
to the identity of the
parties who brought the documents into existence, the subject matter and their
purpose, the Court considers
that they fall within the definition of
“books” the subject of the prohibition in s 1307(1).
- It
follows that the grounds of appeal relating to Counts 4-9 have not been made
out.
Grounds 2(a)-(e) and 3(c) - Complaints About the
Crown’s Reliance Upon Substantial Documentary Evidence at the Trial and
the
Evidence of the Applicant
- A
theme which permeated submissions advanced for the applicant concerned the
approach which ought be taken by the prosecution and
defence in a jury trial for
alleged white-collar crime involving a substantial volume of documents.
- Grounds
2(a)-(e) and 3(c) complain in various ways about the conduct of the trial and
the Crown’s reliance upon a substantial
volume of documentary
evidence.
Conduct of Criminal Trials Involving a Substantial
Volume of Documents
- Before
moving to the particular complaints made, it is appropriate to make some general
observations concerning the conduct of criminal
trials involving substantial
documentary evidence.
- In
R v Milne (No. 1) [2010] NSWSC 932; (2010) 260 FLR 166 at 171; [2010] NSWSC 932 at [9], the
Court observed:
“A criminal trial in Australia is an accusatorial and adversarial process
and is essentially an oral process: Gately v The Queen [2007] HCA 55; 232
CLR 208 at 235 [88]. However, there will be criminal trials involving a
substantial volume of documentary evidence where the trial is not essentially
an
oral process.”
- It
is a common feature in criminal trials for offences of the present type, where a
substantial volume of documentary evidence is
to be tendered, for folders
containing those documents to be prepared (usually in chronological order) for
tender at the trial and
with that tender occurring at an early point in the
trial. In addition, courts have recognised the assistance which a jury may
derive
from the provision of appropriate summary documents, including charts and
chronologies, as well as the use of s 50 Evidence Act 1995 (NSW)
for proof of voluminous or complex documents.
- The
importance of the orderly presentation of documentary evidence was emphasised in
R v Milne (No. 1) at 171-172 [11]:
“That provision [s.50 Evidence Act 1995] sits well with the
purposes identified in the abovementioned authorities, which have as their focus
the provision of practical assistance
to a criminal jury so that the jury may
understand the evidence for the purpose of the discharge of its fact-finding
function. These
processes also serve the purpose of promoting efficient use of
court time with a jury present, so as to allow the jury to understand
the
contents of documents, and the inferences which may be drawn from those
documents, together with the relevance of those inferences
to the elements of
the offences charged in the indictment.”
- It
will usually be necessary for the Crown to tender the actual documents to
demonstrate the course of events and communications,
including (as in this case)
alterations which are said to have been made to documents by the accused person.
The tender of documents
allows the jury, as the judges of the facts, to make
findings concerning the contents of documents and to draw inferences which arise
from all of the evidence in the trial.
- It
is important, however, that an appropriate selection of documents be undertaken
by the Crown well before the trial so that the
documents to be tendered are
those necessary to be placed before the jury. The selection of documents to be
tendered should be based
upon an assessment of the real issues in the trial.
This is a process which involves defence counsel as well as the Crown. It would
be wrong for the Crown to tender indiscriminately a large volume of documents
when it is likely that a narrower selection of documents
will bear upon the real
issues in the trial. The case management provisions in the Criminal Procedure
Act are intended to facilitate a process whereby the real issues in the
trial are identified with a consequence, amongst others, that
only pertinent
documents may need to be tendered and certain witnesses called.
- Adherence
to case management requirements is of considerable importance. As Beech-Jones J
observed in R v Dickson; R v Issakidis (No. 6) [2014] NSWSC 1368 at
[30]:
“The entire point of the pre-trial disclosure regime is to avoid complex
trials going off the rails by additional material
being adduced which catches
the accused by surprise.”
- Division
3 of Pt 3 Criminal Procedure Act (ss 134-149F) contains case
management provisions which are intended to reduce delay in proceedings on
indictment. Those provisions are of particular
use in trials which involve a
substantial volume of documents. The purpose of these provisions is made clear
in s 134 with the case management procedures including s 140 pre-trial
conferences. The purpose of the pre-trial conference is to determine whether the
accused person and the Crown are able
to reach agreement regarding the evidence
to be admitted at trial: s 140(4). Where agreement has been reached, a pre-trial
conference certificate is to be prepared indicating the areas of agreement and
disagreement
regarding the evidence to be admitted at trial, with the
certificate to be signed by the legal representatives for the parties: s 140(9).
Except with the leave of the court, a party may not object to the admission of
any evidence at trial which was the subject of agreement:
s 140(10). The court
is not to grant leave under s 140(10) unless it is of the opinion that it would
be contrary to the interests of justice to refuse leave: s 140(11).
- A
trial judge is entitled to expect that prosecution and defence counsel will
facilitate the way in which evidence is adduced at trial,
in discharge of the
obligations of the prosecutor and defence counsel under the provisions in ss
134-149F Criminal Procedure Act and r 58 Legal Profession Uniform Conduct
(Barristers) Rules 2015 (NSW): Commonwealth Director of Public Prosecutions v
Burrows [2017] NSWCCA 105 at [69].
- In
Commonwealth Director of Public Prosecutions v Burrows, the Court noted
at [72]:
“...the obligations upon both prosecuting and defence counsel under Clause
58 Legal Profession Uniform Conduct (Barristers)
Rule 2015 which states:
‘58 A barrister must seek to ensure that work which the
barrister is briefed to do in relation to a case is done so as to:
(a) confine the case to identified issues which are genuinely
in dispute,
(b) have the case ready to be heard as soon as
practicable,
(c) present the identified issues in dispute clearly and
succinctly,
(d) limit evidence, including cross-examination, to that which
is reasonably necessary to advance and protect the client’s
interests
which are at stake in the case, and
(e) occupy as short a time in court as is reasonably necessary
to advance and protect the client’s interests which are at
stake in the
case’.”
The Trial of the Applicant
- A
s 140 pre-trial conference (attended by trial counsel) took place in this case
on 28 July 2017, leading to the issue of a certificate
dated 31 July 2017 signed
by the parties for the purpose of s 140(8). The certificate included the
following:
“2 The purpose of the pre-trial conference was to
determine whether the Accused and the Crown were able to reach agreement
regarding the evidence to be admitted at the trial starting on Monday, 7 August
2017.
3 The result of the pre-trial conference is that the Accused
does not object to, and consents to the tender at the trial of the
following:
a. The Crown's proposed tender bundle, which comprises two
volumes of documents.
b. The document entitled $1 Million Loan Summary Funds Flow
Diagram. Annexed and marked ‘A’ is a copy of that document.
c. The documents prepared by the Crown and entitled mark-up
count 4, mark-up count 5, mark-up count 6, mark-up count 7, mark-up
count 8 and
mark-up count 9 (attached).”
- Exhibit
1 at the trial comprised the two volumes of documents tendered by the Crown,
without objection, in the course of the Crown
opening address. These documents
had been made available to the applicant’s legal representatives some time
before trial. It
is unsurprising that the s 140 procedure was utilised in this
case, in a manner which allowed the trial to unfold with the jury receiving
the
two folders of documents at an early stage of the trial. The flow diagram
referred to in paragraph 3(b) of the certificate constituted
a good example of
the use of a summary document to assist the jury in the trial. The marked-up
documents referred to in paragraph
3(c) of the certificate were those referred
to at [29]-[34] above, copies of which are annexed to this judgment. Clearly,
these documents
were useful exhibits for the purpose of the trial.
- It
is appropriate to note paragraph 38 of the affidavit of Mr Dennis, where he
said:
“Shortly before the commencement of the trial I considered a request from
the Crown Prosecutor to tender Exhibit 1 at the commencement
of his opening
address. I agreed to this course. I did so because I considered it was an
efficient way in which to conduct the matter
and consistent with my obligation
to the Court to assist in ensuring that the litigation was conducted efficiently
and such that
the parties could come to the heart of the issues at hand. I did
not consider that the appellant would suffer any forensic disadvantage
in the
circumstances.”
- In
our view, the approach adopted by trial counsel for the applicant was
appropriate and complied with his statutory and ethical obligations.
- The
flavour of grounds 2(a)-(d) is that the jury was, in some way, overwhelmed by
the documentary evidence in a manner which was unfair
to the applicant. With
respect to this general complaint, it is important not to underestimate the
intelligence and common sense
of jurors as to whether material is likely to have
an undue or inappropriate impact upon the jury’s thought processes: R v
Petroulias (No. 34) [2007] NSWSC 1462 at [64]- [66].
- Before
the trial commenced, there was agreement concerning the tender of documents
which became Exhibit 1. Those documents were furnished
to the jury early in the
trial and were referred to constantly during the evidence of witnesses and in
addresses. The schedule contained
in Attachment A to the Crown Supplementary
Submissions dated 22 April 2019 demonstrates that virtually all of the documents
contained
in Exhibit 1 were referred to in evidence at the trial. This is not a
case where Exhibit 1 contained a large volume of documents
tendered in an
indiscriminate manner by the Crown, with only some being referred to as being of
importance to the issues in the trial.
- It
is the case that a limited number of pages were duplicated in Exhibit 1, but
this was explained largely by the tender of email
chains and different
iterations of documents. This was not a case of unnecessary duplication of
documents. There is no realistic
prospect that prejudice resulted to the
applicant because of the very limited duplication of tendered documents which
occurred in
this case.
- A
small number of documents relating to market manipulation were included in
Exhibit 1 which, as the trial progressed, attracted attention
from counsel. Both
the Crown and trial counsel for the applicant took steps to lead evidence from
witnesses in ways which passed
over these documents in an innocuous way without
any prejudicial consequences for the applicant. The affidavit of Mr Dennis
explains
in some detail (at paragraphs 42-62) what occurred with respect to this
material.
- Although
it may have been preferable for certain pages to have been removed from Exhibit
1 before it was tendered, the inclusion of
those pages did not give rise to any
detriment to the applicant, or cause prejudice to his case, in a manner which
could lead to
a conclusion that a miscarriage of justice resulted or that there
was a risk of a miscarriage of justice. Accordingly, the particular
complaint
contained in grounds 2(d) and 3(c) ought be rejected.
- It
has not been demonstrated that the use of Exhibit 1 throughout the trial gave
rise to any unfairness to the applicant, let alone
that it constituted a
miscarriage of justice.
- It
should be observed that, in response to a question from the Court, Mr Glissan QC
did not articulate expressly what alternative
course ought to have been taken at
the trial with the documents in Exhibit 1. A theoretical alternative may have
been for individual
documents, or multiple bundles of documents, to have been
tendered at different points during the course of the trial rather than
the use
of a single exhibit containing documents ordered in a chronological and logical
order. This approach would have burdened
the jury with multiple exhibits which
would undermine the efficient, orderly and fair trial of the applicant as well
as extending
the length of the trial for no good purpose. Such an approach would
have been quite contrary to the statutory regime for pre-trial
and trial
management in the Criminal Procedure Act and also the professional and
ethical obligations residing in both prosecution and defence counsel.
- The
approach adopted in this trial concerning the tender and use of Exhibit 1 did
not give rise to any injustice to the applicant.
Grounds 2(a), (b) and (c)
should be rejected.
- Ground
2(e) complains about the extended evidence of the applicant and contends that it
rendered the trial unfair. There is no substance
in this complaint. The
applicant elected to give evidence and his evidence-in-chief and
cross-examination were detailed and thorough.
His evidence extended over a wide
range of topics raised by the various counts in the indictment. An examination
of the transcript
of this evidence does not indicate unfairness to the
applicant. Ground 2(e) is rejected.
- In
summary, each of the complaints contained in grounds 2(a)-(e) and 3(c) is
rejected. Leave to rely upon each of these grounds should
be
refused.
Ground 4 - The Competence of Counsel Ground
- Ground
4 asserts that the applicant was denied a fair trial or deprived of a fair
chance of acquittal due to the incompetence of his
trial counsel.
- No
affidavit of the applicant was relied upon in support of the incompetent counsel
ground. Without objection by the applicant, the
Crown relied upon affidavits of
the counsel and solicitor who appeared for the applicant at trial, being the
affidavit of Mr Dennis
affirmed 4 February 2019 and the affidavit of Robert
Ibrahim Daoud affirmed 15 April 2019. Neither Mr Dennis nor Mr Daoud was
cross-examined
at the hearing in this Court.
- To
make good a ground of appeal based upon alleged incompetence of trial counsel,
it is necessary for an applicant to establish that
what did or did not occur at
trial occasioned a miscarriage of justice: TKWJ v The Queen [2002] 212
CLR 127 at 149-150; [2002] HCA 46 at [79]; Ali v The Queen [2005] HCA 8
at [18]; [2005] HCA 8; (2005) 79 ALJR 662 at 665.
- In
Davis v R [2017] NSWCCA 257, Price J (Hoeben CJ at CL and Schmidt J
agreeing) summarised the relevant principles at [59]:
“In order to establish a miscarriage of justice, the applicant must do
more than ‘simply point to some failing, even
a gross failing, of the
legal representative who appeared...’: John Wayne Tsiakas v R
[2015] NSWCCA 187 at [44]; Younan v R [2016] NSWCCA 248 at [96]. The
applicant must demonstrate that there is a significant possibility that the acts
of which she complains affected the outcome
of the trial: TKWJ v The
Queen (2002) 212 CLR 124; [2002] HCA 46 (‘TKWJ’); Nudd
v The Queen [2006] HCA 9; (2006) 80 ALJR 614.”
- It
has been said that, to the extent that it is reasonably possible, the focus of
attention in determining an incompetent counsel
ground should be the objective
features of the trial process: Nudd v The Queen [2006] HCA 9 at [10];
[2006] HCA 9; (2006) 80 ALJR 614 at 619 (Gleeson CJ). The admissibility of an affidavit of
trial counsel has been considered by this Court on a number of occasions
with
differing outcomes: Ahmu v R [2014] NSWCCA 312; Vella v R [2015]
NSWCCA 148; Langelaar v R [2016] NSWCCA 143 at [73]- [80].
- In
Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4, after referring to
relevant authorities, Macfarlan JA (Rothman and Bellew JJ agreeing) said at
427-428 [31]:
“I draw from these authorities the following principles relevant to the
present case:
(1) To the extent possible, an appellate court should determine
an appeal involving complaints about a trial counsel’s conduct
of a case
by examining the record of the trial to determine from the objective
circumstances whether the accused has had a fair trial.
(2) Ordinarily, an affirmative answer to this question is
required where the impugned conduct is capable of being rationally explained
as
a step taken, or not taken, in the interests of the accused. This is so even if
the accused alleges on appeal that he or she did
not authorise the conduct
because the nature of the adversarial system means that the client is bound by
the manner in which the
trial is conducted on his or her behalf.
(3) Only in exceptional circumstances will an appellate court
find it necessary to resort to subjective evidence concerning the
appellant’s legal representatives’ reasoning at trial or to evidence
as to communications between the appellant and those
representatives.
(4) The ultimate question for an appellate court is whether the
appellant has established that what occurred at the trial gave
rise to a
miscarriage of justice in the sense that the appellant lost a chance of
acquittal that was fairly open.”
- The
approach outlined in Alkhair v R has been applied recently by Payne JA
(Wilson and Ierace JJ agreeing) in Moustafa v R [2019] NSWCCA 89 at
[40]- [58].
- In
the present case, it was pertinent that strong allegations were made against
trial counsel on a range of topics so that it was
reasonable to allow counsel an
opportunity to respond to those allegations. These constituted exceptional
circumstances where reference
to trial counsel’s evidence was necessary
and appropriate.
- The
applicant’s conviction appeal was conducted upon the basis that there were
almost self-evident propositions which could
be advanced to demonstrate that the
applicant had been represented incompetently at trial, and that the various
contentions contained
in the conviction grounds of appeal had been made
good.
- The
written submissions filed for the applicant included strong allegations made
against the Crown who appeared at trial as well as
counsel who appeared for the
applicant at first instance. None of the submissions advanced in writing were
withdrawn at the hearing
before this Court although senior counsel for the
applicant diluted some of them in the course of oral argument.
- There
are considerable hurdles which the applicant must clear in order to establish
his incompetent counsel ground of appeal: Langelaar v R at [64]. The
ultimate question for this Court is whether the applicant has established that
what occurred at trial gave rise to a
miscarriage of justice.
- To
establish ground 4, it is necessary for the applicant to demonstrate not just
that arguments could possibly have been put or objections
taken by his counsel
in the District Court. It is necessary for the applicant to demonstrate that
there is a significant possibility
that the acts or omissions of which he
complains affected the outcome of the trial. This involves a practical and
substantive enquiry
and not merely a theoretical analysis of possible arguments
that could have been advanced.
- An
examination of the objective circumstances revealed in the trial record does not
support the applicant with respect to ground 4.
Events during the trial about
which complaint is made (contained in grounds 1, 2 and 3) do not, when taken
separately or together,
support a conclusion that there has been a miscarriage
of justice in the sense that the applicant has lost a chance of acquittal
which
was fairly open.
- This
conclusion is fortified by the affidavit of Mr Dennis which responds in clear
and persuasive terms to criticisms made of his
conduct of the trial. Reference
has been made to parts of that affidavit in determining other grounds of
appeal.
- The
applicant has failed to establish that he was denied a fair trial or deprived of
a fair chance of acquittal because of the conduct
of trial counsel. Ground 4
should be rejected.
Ground 5 - Appeal Against Sentence
- The
applicant seeks leave to appeal against sentence in ground 5 which states
“the aggregate sentences imposed in relation to
the conspiracy and
Corporations Law counts were too severe and exceeded a proper exercise of the
sentencing discretion”.
- At
the hearing in this Court, Mr Glissan QC acknowledged that this ground of appeal
should be taken as contending that the overall
sentence imposed upon the
applicant was manifestly excessive.
- On
24 November 2017, her Honour Judge Yehia SC imposed the sentences set out
earlier in this judgment (at [6]-[7]).
- The
total effective term of imprisonment comprised a head sentence of four years and
three months with an effective minimum term of
two years and three months, with
the applicant’s non-parole period expiring on 23 February 2020.
- With
respect to Count 1, although the penalty for the common law offence of
conspiracy is at large, her Honour had regard to the maximum
penalty for an
offence under s 192E Crimes Act 1900 (NSW) of 10 years’
imprisonment in fixing sentence for the conspiracy. With respect to the offences
contained in Counts 2 and
3, the maximum penalty for each offence was five
years’ imprisonment. For the offences contained in Counts 4-9, the maximum
penalty for each offence was two years’ imprisonment.
- The
principal complaint advanced for the applicant related to the accumulation of
sentences in this case. It was submitted that the
level of accumulation was
excessive so that the total effective sentence imposed was manifestly
excessive.
- The
Crown submitted that both the individual sentences and the total effective
sentence imposed upon the applicant lay within the
proper exercise of discretion
by the sentencing judge so that the appeal against sentence ought be
dismissed.
- In
Obeid v R [2017] NSWCCA 221; (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said
at [443]:
“When it is contended that a sentence is manifestly excessive it is
necessary to have regard to the following principles derived
from House v The
King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen
(1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000)
202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584;
[2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005]
HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242
CLR 520; [2010] HCA 45 at [59].
* Appellate intervention is not justified simply because the
result arrived at in the court below is markedly different from sentences
imposed in other cases.
* Intervention is only warranted where the difference is such
that it may be concluded that there must have been some misapplication
of
principle, even though where and how is not apparent from the reasons of the
sentencing judge, or where the sentence imposed is
so far outside the range of
sentences available that there must have been error.
* It is not to the point that this Court might have exercised
the sentencing discretion differently.
* There is no single correct sentence and judges at first
instance are allowed as much flexibility in sentencing as is consonant
with
consistency of approach and application of principle.
* It is for the applicant to establish that the sentence was
unreasonable or plainly unjust.”
- The
sentencing judge explained her reasons for imposing the sentences in this case
in careful and balanced sentencing remarks.
- A
finding was made that the conspiracy offence in Count 1 fell at the middle of
the range (but not at the high end of the range) of
objective seriousness for
offences of that type. That conclusion was plainly open to the sentencing
judge.
- With
respect to Counts 2 and 3, her Honour was satisfied that the applicant’s
criminal conduct was objectively serious. Her
Honour explained why sentences of
full-time imprisonment were required for Counts 2 and 3, before concluding that
entirely concurrent
sentences were appropriate for those offences.
- The
sentencing judge found with respect to Counts 4-9 that the conduct was
objectively much less serious, and fell at the lower end
of the range for
offences of that type. Having considered all relevant factors, her Honour
concluded that sentences of full-time
imprisonment were required for those
offences, but that they should be served concurrently.
- It
was entirely open to her Honour to determine that the sentence for Count 1
should be made cumulative upon the sentences passed
for Counts 2 and 3.
- Her
Honour had regard to all relevant objective and subjective factors. It did not
assist the applicant that he had prior convictions
for market manipulation
offences committed in the period 2007 to 2011.
- To
the extent that the applicant relied at first instance and in this Court on a
limited number of sentencing decisions in other cases,
it is sufficient to
observe that none of those decisions assists the applicant in his claim of
manifest excess.
- The
sentencing judge had regard to the principle of totality and made a finding of
special circumstances with respect to the first
count, the State offence. All
relevant factors were taken into account including statutory factors contained
in s 16A Crimes Act 1914 (Cth) and the Crimes (Sentencing
Procedure) Act 1999 (NSW).
- Having
regard to principles concerning accumulation, concurrency and totality, it was
entirely open to the sentencing judge to determine
the levels of concurrency and
accumulation reflected in the sentences imposed for the different classes of
offences.
- The
applicant has not demonstrated that the overall effective sentence was
manifestly excessive. The sentences imposed upon the applicant
lay comfortably
within the reasonable exercise of sentencing discretion in the circumstances of
this case.
- The
applicant has not made good his challenge to the sentences imposed in the
District Court.
The Applicant Seeks to Make Further Submissions
After the Hearing in the Court of Criminal Appeal
- Following
the hearing of the matter in the Court on 23 April 2019, the Registrar of the
Court of Criminal Appeal received an email
from the applicant’s solicitor
indicating that the applicant personally sought to make further submissions
(over 60 pages and
three folders of material). The Registrar was informed that
these submissions had been prepared by the applicant himself and had
not been
endorsed by his counsel or solicitor.
- The
Crown opposed the applicant’s request to furnish further submissions and
material to the Court.
- The
Court determined not to receive those submissions and material and the parties
were so informed.
- The
applicant was represented at the hearing of his application for leave to appeal
against conviction and sentence by experienced
senior and junior counsel. Two
sets of written submissions were furnished to the Court by counsel on behalf of
the applicant, and
senior counsel addressed the Court at the hearing on 23 April
2019, at the conclusion of which the Court reserved judgment.
- It
is noteworthy that the applicant’s counsel and solicitor were not seeking
to make further submissions to the Court. They
were not prepared to endorse and
advance these submissions. Rather, whilst continuing to have counsel and
solicitor on the record
for the purpose of the proceedings, the applicant sought
himself to make submissions to the Court together with the provision of
additional material.
- In
refusing this application by the applicant, the Court had in mind what was said
by McHugh J in Eastman v Director of Public Prosecutions (ACT) (2003) 214
CLR 318 at 330; [2003] HCA 28 at [29]- [31]:
“29 Parties to matters before the Court need to
understand that, once a hearing in the Court has concluded, only in very
exceptional circumstances, if at all, will the Court later give leave to a party
to supplement submissions. Parties have a legal
right to present their arguments
at the hearing. If a new point arises at the hearing, the Court will usually
give leave to the parties
to file further written submissions within a short
period of the hearing - ordinarily seven to fourteen days. But a party has no
legal right to continue to put submissions to the Court after the hearing. In so
far as the rules of natural justice require that
a party be given an opportunity
to put his or her case, that opportunity is given at the hearing.
30 This is not the first time that this Court has had to
emphasise that the hearing is the time and place to present arguments.
In
Carr v Finance Corporation of Australia Ltd [No 1] [(1981) [1981] HCA 20; 147 CLR 246 at
258], Mason J said: ‘The material was submitted without leave having been
given by the Court. The impression, unfortunately
abroad, that parties may file
supplementary written material after the conclusion of oral argument, without
leave having been given
beforehand, is quite misconceived. We have to say once
again, firmly and clearly, that the hearing is the time and place to present
argument, whether it be wholly oral or oral argument supplemented by written
submissions.’’
31 Once the hearing has concluded, the workload of the Court
makes it impossible for the Court to give leave to file further submissions
-
with all the attendant delay in the Court’s business by a fresh round of
submissions. Efficiency requires that the despatch
of the Court’s business
not be delayed by further submissions reflecting the afterthoughts of a party or
- as perhaps is the
case in this appeal - some dissatisfaction with the
arguments of the party’s counsel.”
- In
Nguyen v R [2008] NSWCCA 322, this Court refused to receive an
unsolicited document from counsel containing supplementary written submissions
furnished after
the hearing of the appeal. In the course of explaining this
ruling, Tobias JA (James and Price JJ agreeing) said at
[30]-[31]:
“30 The time and place to present argument and, if
necessary, to seek leave to file supplementary submissions, is during
the
hearing of the appeal. It is inappropriate to file such submissions after the
conclusion of the hearing and to seek the Court’s
leave to do so at the
same time. Such a practice is to be discouraged and should extend to appeals in
criminal matters save in exceptional
circumstances.
31 An example of such a circumstance would be where, after
judgment was reserved, an authoritative decision of an appellate court
directly
on point is handed down. Obviously, it should be brought to the Court’s
attention and leave sought, which is likely
to be granted, to file a
supplementary submission explaining how the new decision might affect the
outcome of the appeal. In the
present case, what appears to be, with respect, an
afterthought of counsel does not so qualify.”
- In
circumstances where detailed written and oral submissions had been presented by
senior counsel appearing for the applicant, it
was not appropriate for the Court
to receive material from the applicant personally. This was especially so at a
time when he continued
to be represented by counsel and solicitor who were not
prepared to apply to the Court for them to make further submissions on his
behalf. Even if such an application had been made by the applicant’s legal
representatives, the principles to which the Court
has referred emphasise the
very high hurdle which would have stood in the way of the application.
- Even
after the applicant was informed of the Court’s refusal to receive the
submissions and material, the applicant communicated
with the Registrar of the
Court of Criminal Appeal directly on and after 17 June 2019. Nothing contained
in those communications
assists the applicant in this
appeal.
Conclusion and Orders
- It
must be said that this application has the flavour of an “armchair
appeal”, where counsel not involved in the trial have gone through the
record of the trial in minute detail looking
for error or possible arguments,
without regard to the manner in which the trial was conducted: R v Fuge
[2001] NSWCCA 208; (2001) 123 A Crim R 310 at 319-330; [2001] NSWCCA 208 at [40]- [45];
Darwiche v R [2011] NSWCCA 62; (2011) 209 A Crim R 424 at 429-430; [2011] NSWCCA 62 at
[170]. The additional step taken in the present case was the addition of a
generalised claim of incompetent representation by trial counsel
(ground 4)
which was sought to be used, without success, as a type of broad antidote to the
r 4 difficulty confronting the other
grounds of appeal. Neither the use of
“armchair appeals” nor dubious claims of incompetent representation
is to be encouraged
by this Court.
- The
applicant has failed to establish any of his grounds of appeal with respect to
conviction and sentence.
- Given
the construction issue raised by ground 3(b), leave should be granted under r 4
for the applicant to rely upon that ground,
but the ground itself should be
rejected.
- The
applicant otherwise requires leave under r 4 or s 5(1) Criminal Appeal
Act (or both) to rely upon each of the remaining grounds of appeal with
respect to conviction and sentence. In light of the conclusions
reached by the
Court concerning grounds 1(a)-(d), 2(a)-(e) and 3(a) and (c), leave under r 4
should be refused. The applicant should
be refused leave under s 5(1)(b)
Criminal Appeal Act with respect to ground 4. Leave to appeal against
sentence should be refused under s 5(1)(c) Criminal Appeal Act.
- The
Court makes the following orders:
- (a) pursuant to
r 4 Criminal Appeal Rules (NSW), grant the applicant leave to raise ground 3(b)
of the amended grounds of appeal filed
on 30 November 2018;
- (b) refuse the
applicant leave under r 4 Criminal Appeal Rules (NSW) to raise grounds 1(a)-(d),
2(a)-(e) and 3(a) and (c);
- (c) refuse the
applicant leave under s 5(1)(b) Criminal Appeal Act to rely upon ground
4;
- (d) appeal
against conviction dismissed;
- (e) leave to
appeal against sentence refused.
Roach v
R Attachments (2.68 MB, pdf)
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URL: http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2019/160.html
