Court of Appeal (WA)|2016-09-01|Before: Buss P, Mazza JA, Mitchell JA

ARDREY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 154 (1 September 2016)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ARDREY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 154

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Indictment containing 19 counts of fraud - Appellant convicted after trial of 18 counts - State's case run on the basis of six alternative particulars of deceit or fraudulent means - Jury unanimity - Unanimity required on all essential elements or ingredients of each offence - Jurors required to agree unanimously as to the particular deceit or fraudulent means that was used by the appellant and that caused the alleged detriment - Trial judge failed to give the required directions - New trial ordered

Criminal law - Appeal against conviction - Additional evidence on appeal - Whether verdicts of guilty were unreasonable or could not be supported having regard to the evidence adduced at trial and the additional evidence

Appellant's application for leave to adduce additional evidence and to add a proposed additional ground of appeal dismissed

Judgments of conviction on counts 2 to 19 set aside

Brown v The Queen (1984) 79 Cr App R 115

Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627

DPJB v The State of Western Australia [2010] WASCA 12

Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

Infirri v The Queen (1981) 5 A Crim R 132

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Loone v The State of Tasmania [2008] TASSC 7; (2008) 17 Tas R 378

Magnus v The Queen [2013] VSCA 163; (2013) 41 VR 612

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

More v The Queen (1988) 86 Cr App R 234

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Pratten v The Queen [2014] NSWCCA 117

Rinaldi v The State of Western Australia [2007] WASCA 53

Sio v The Queen [2016] HCA 32

1 BUSS P: This is an appeal against conviction.

2 The appellant was charged on indictment with 19 counts of fraud, contrary to s 409(1)(d) of the Criminal Code (WA) (the Code). Each count alleged that on a specified date, at Perth, the appellant, with intent to defraud, by deceit or fraudulent means caused a detriment to Phoenix Eagle Pty Ltd (Phoenix), namely the payment of a specified amount of money. The appellant pleaded not guilty.

3 On 3 March 2015, after a five-week trial before Levy DCJ and a jury, the appellant was convicted of 18 counts (counts 2 to 19) and acquitted of one (count 1).

4 The total amount involved in the fraud offences of which the appellant was convicted was $394,759.38.

5 On 29 May 2015, the appellant was sentenced to a total effective term of 4 years' immediate imprisonment with eligibility for parole. The sentence was backdated to 3 March 2015. A compensation order in the sum of $394,759.38 was made in favour of Phoenix.

6 On 1 June 2016, this court granted the appellant bail pending the determination of the appeal.

7 I would grant leave to appeal on the ground of appeal, allow the appeal, set aside the judgments of conviction and order a new trial. My reasons are as follows.

8 The State's case at trial was that, on multiple occasions over an eight-month period in 2006, the appellant defrauded Phoenix, a small biotech health sciences company.

9 A director of Phoenix, Tom McArthur, had previously invented a chemical process which, when applied to any fruit or vegetable, produced a product that was thought to have a therapeutic effect on skin complaints. Between 2005 and 2007 Phoenix was actively seeking to develop its intellectual property in the process by entering into licensing packages with major pharmaceutical companies (Big Pharma).

10 In 2005, Mark Richardson, the managing director of Phoenix, attended a conference at which the appellant spoke on the commercialisation of intellectual property. The appellant represented himself as a person who could produce a licensing package for Phoenix more quickly and less expensively than Phoenix had contemplated. The appellant was appointed a non-executive director of Phoenix with a view to his implementing that objective.

11 The appellant purported, on behalf of Phoenix, to engage Franklin Chen Associates of Washington DC and Silicon Valley Pharmaceutical Partners of Oakland (the Consultants) to assist in implementing Phoenix's objective.

12 As to each count in the indictment, the State alleged that the detriment suffered by Phoenix was an amount of money it had paid in settlement of a particular invoice which the appellant had presented to it for payment. The invoices purported to have been raised by the Consultants for work they had performed pursuant to their engagement by the appellant on behalf of Phoenix. The State asserted that, when he used the alleged deceit or fraudulent means, the appellant had an intention to defraud because he intended to cause economic loss to Phoenix.

13 The State's case, as ultimately left to the jury, was that the appellant had caused Phoenix to suffer the detriment pleaded in each count in the indictment by using one or more deceits or fraudulent means in connection with the issuing of the invoice and Phoenix's payment of that invoice.

14 The State's evidence at the trial was relevant primarily to the bona fides of the Consultants, the value of the work purportedly performed by them (if they existed) and the redirection of Phoenix's money, intended for the Consultants, to the appellant.

15 The appellant's case at trial was that he did not use deceit or fraudulent means, Phoenix did not suffer any financial disadvantage and, in any event, he did not have an intention to defraud.

16 According to the appellant, he was, in effect, a scapegoat for Phoenix and its managing director, Mr Richardson, and any financial disadvantage which Phoenix had suffered was attributable to the appellant's advice having been consistently ignored.

(a) The Consultants, who had raised the invoices, existed and the work particularised in the invoices had been done. In any event, the evidence adduced by the State could not satisfy the jury beyond reasonable doubt that the Consultants did not exist. Further, the evidence established that the work had been done, regardless of who had done it.

(b) The appellant had disclosed his relationship with the Consultants to Mr Richardson before the Consultants were engaged.

(c) Estimates the appellant had given to Phoenix about the time it would take for him to assist Phoenix in securing licensing arrangements with Big Pharma were based on what he had been told by Mr Richardson and others. However, Phoenix's true position (and other significant information) had not been disclosed to him. In particular, he was led to believe that Phoenix was far more advanced in the development of its intellectual property than was in fact the case.

(d) The appellant had suffered a forensic disadvantage as a result of a delay in the State commencing the prosecution.

(e) Mr Richardson's evidence, on which the State relied significantly, was not credible having regard to inconsistencies in his evidence compared to a version of events he had previously given and the terms of various documents.

(f) The evidence adduced by the State did not establish that the appellant had set up a system whereby he procured Phoenix to make payments in relation to the invoices in circumstances where he was the ultimate beneficiary of those payments.

(g) The jury should determine whether the appellant had lied during a video recorded interview with the police, and whether that affected his credibility, by having regard to:

(i) the time that had elapsed between the alleged commission of the offences and the conducting of the interview;

(ii) the time of the day when the interview took place;

(iii) the appellant's inexperience in dealing with the police; and

(iv) the fact that the questions put to the appellant by the police were focused on only one aspect of the State's case (namely, that money paid in satisfaction of the invoices appeared, ultimately, to have been deposited in the appellant's accounts).

The particulars of the counts in the indictment

18 Each of the 19 counts in the indictment alleged that the appellant, with intent to defraud, by deceit or fraudulent means caused a detriment to Phoenix. The detriment was a specified amount of money.

19 Each count was based on allegations that the appellant had claimed to have engaged the Consultants and had procured an invoice to be issued to and paid by Phoenix for work purportedly done by the Consultants.

20 However, the indictment did not particularise the deceit or fraudulent means allegedly used by the appellant. No particulars were sought by the appellant's legal representatives or provided by the State before the trial.

21 In his opening address, the prosecutor did not formally particularise the deceit or fraudulent means alleged by the State. He merely outlined, in general terms, the appellant's alleged acts and representations which constituted that element of each offence (ts 639 - 647).

22 Prior to closing the State's case, the prosecutor gave the trial judge and defence counsel a draft document and, later, another document which set out details of the deceit or fraudulent means allegedly used by the appellant. The documents were relied on by the trial judge in directing the jury.

23 The State's particulars, as set out in the documents given by the prosecutor to his Honour and defence counsel, were as follows:

(a) first particular: the appellant, well knowing that a level of science not possessed by Phoenix was necessary to achieve an effective licensing package, represented to Phoenix that he could, with the employment of consultants, produce such a package within varying, but short, time frames;

(b) second particular: the appellant continued to reassure Phoenix that it was on track to have a licensing package when he well knew that an effective licensing package could not be produced and that the work the Consultants were producing and being paid for was not suitable for incorporation into such a package;

(d) fourth particular: the appellant caused Phoenix to make the payments particularised in each of the counts in the indictment for material which could never have fulfilled the purpose for which he had been granted access to budgeted money, namely the production of a licensing package;

(e) fifth particular: the appellant presented the invoices to Phoenix and sought payment of them well knowing that the payees did not exist, as he had represented them to be, because they did not exist, were not appropriately qualified or did not actually do the work; and

(f) sixth particular: the appellant set up a system whereby he procured payment of the invoices by Phoenix to the Consultants, in circumstances where he was ultimately the beneficiary of the money, by knowingly and wilfully disguising the true nature of his relationship with the Consultants.

24 The ground of appeal alleges that a miscarriage of justice was occasioned by the trial judge's failure to direct the jury that, in relation to each count, they must agree unanimously as to the particular deceit or fraudulent means that was used by the appellant and that caused the detriment.

25 On 29 November 2015, Mazza JA ordered that the appellant's application for leave to appeal on that ground be referred to the hearing of the appeal.

The appellant's application for leave to adduce additional evidence and to add a ground of appeal

26 By an application in the appeal filed 18 April 2016, the appellant applied for leave to adduce additional evidence in the appeal and to add a ground of appeal.

27 The proposed additional ground alleges, in effect, that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence adduced at trial and to the additional evidence sought to be adduced in the appeal, the verdicts of guilty are unreasonable or cannot be supported.

28 On 4 May 2016, Mazza JA ordered that the appellant's application be referred to the hearing of the appeal.

29 The appellant's orders wanted in relation to the ground of appeal and the proposed additional ground of appeal are that leave to appeal be granted, the appeal be allowed, the judgments of conviction be set aside and a new trial be ordered.

30 The trial judge identified the particular acts and omissions relied on by the State as the deceits or fraudulent means the appellant had allegedly used to cause financial detriment to Phoenix, as follows:

The first is that Dr Ardrey [that is, the appellant], well knowing that a level of science not possessed by the company [that is, Phoenix] was necessary to achieve an effective licensing package, represented to the company that he could, with the employment of consultants, produce such a package within varying but short time frames.

...

The second is that Dr Ardrey, throughout his employment by the company, continued to reassure the company that they were on track to have a licensing package when he well knew that an effective licensing package could not be produced and that the work his consultants were producing and being paid for was not suitable for incorporation into such a package.

...

The third is that the work claimed for in respect of each of the invoices had not been done. That's simple enough. The work had simply not been done. And you'll remember that both Mr O'Sullivan [that is, the prosecutor] and Mr Massey [that is, defence counsel] went through that in quite some detail. The State's case is that the work had not been done.

The fourth is that Dr Ardrey ... having achieved the budget allocations of $165,000 and later $500,000 from the company, proceeded to cause the company to make the payments particularised in each one of the separate counts on the indictment for material which could never have fulfilled the process for which he had been granted access to the budgeted money, namely the production of a licensing package, thereby deceiving the company into acting to its detriment. The State says that what was produced was unsuitable for incorporation into the promised licensing package.

...

The fifth thing is that Dr Ardrey represented the invoices to the company; that's Phoenix Eagle, and sought payment of them well knowing that the payees; that is, Franklin Chen and Associates or Franklin Chen, Silicon Valley Pharmaceuticals and so forth - so the payees did not exist as he had represented them to be because in relation to Silicon Valley that the consultants did not exist, or were not appropriately qualified, or did not actually do the work, and in relation to the Franklin Chen invoices, leaving aside Franklin Chen, that the consultants did not exist; that is, the consultancy Franklin Chen and Associates didn't exist, or any other person supposed to be associated with it didn't exist, although - and this is a matter for you, it's a matter of comments - it seems that the State doesn't dispute that there was a person called Franklin Chen. But the State disputes that Franklin Chen was appropriately qualified or that, in fact, Franklin Chen or Franklin Chen and Associates had done the work. So I'll say that again.

...

The sixth is that Dr Ardrey set up a system whereby he procured payment of the invoices by Phoenix Eagle to the consultants in circumstances where he was ultimately the beneficiary of the moneys, namely knowingly and wilfully disguising the true nature of his relationship with the consultants; and in the case of Franklin Chen by failing to disclose his proper qualifications and the family relationship, and in the case of Silicon Valley the fact that the moneys were being paid to his parents-in-law and not to Silicon Valley. For short summary you could refer to that generally as being the system of payment that the State says that Dr Ardrey set up (ts 3183 - 3185).

31 The directions that his Honour gave to the jury, as to the deceits or fraudulent means particularised by the State, can be summarised as follows:

(a) The State did not need to prove all of the particularised deceits or fraudulent means in order to prove that the appellant was guilty in relation to each of the counts. His Honour told the jury that if 'you' were satisfied beyond reasonable doubt of one of the particularised deceits or fraudulent means then that would be sufficient, provided that the other elements of the offence in question were also proved beyond reasonable doubt (ts 3185 - 3186) (emphasis added).

(b) His Honour reminded the jury, when summarising 'globally' the State's case, of a direction he had given them earlier in his summing up (ts 3185 - 3186). He reiterated that 'the State relies upon each one of the separate deceits but is not required to prove all of them to satisfy you beyond reasonable doubt that [the appellant] is guilty on any one of the particular counts' (ts 3191) (emphasis added).

(c) His Honour, in the course of dealing separately with each count in the indictment, again summarised the particular deceits or fraudulent means relied on by the State (ts 3273 - 3276). As to the third and fourth particulars, he gave the jury a detailed summary of some of the more significant evidence that had been adduced from the State's principal witness, Mr Richardson (ts 3276 - 3313).

(d) His Honour, after referring to the evidence specifically relevant to the third and fourth particulars, again summarised all of the deceits or fraudulent means relied on by the State and repeated his earlier directions that '[t]he State [does not] need to prove every one of those in relation to each count' and that '[i]f you were satisfied beyond reasonable doubt that any one of those applied to a count, that would be enough to prove the fourth element [of the offence in question] and only the fourth element' (ts 3317 - 3318) (emphasis added).

(e) His Honour then dealt specifically with the fifth and sixth particulars (ts 3318 - 3320).

32 The trial judge directed the jury that it was necessary for them to arrive at unanimous verdicts (ts 625 - 626, 3162, 3326). However, those directions related only to their verdicts; that is, whether the appellant was guilty or not guilty of each count in the indictment.

33 The directions about unanimous verdicts were given at the commencement of the trial, before the State had opened its case and before any evidence had been adduced, and at the end of his Honour's summing up, well after he had dealt with the particulars of deceit or fraudulent means.

34 On Friday, 27 February 2015, at 12.35 pm the jury retired to consider their verdicts. The trial judge adjourned the court and the jury ceased their deliberations at 3.02 pm on that day.

35 When the trial resumed on Tuesday, 3 March 2015, at 9.37 am (after a long weekend), the jury sent his Honour a note containing some questions about the six particulars of deceit or fraudulent means. Those questions sought clarification of the particulars, including clarification about whether they were relevant to the element of intent to defraud or the element of deceit or fraudulent means (ts 3334).

36 The trial judge, in answering the jury's questions, redirected them about the six particulars of deceit or fraudulent means (ts 3337 - 3341, 3344 - 3345).

37 His Honour said the State's case was that the six particulars of deceit or fraudulent means do not 'all necessarily relate to every single count' (ts 3337). His Honour instructed the jury that it was 'a matter for you as to whether they relate to a count or not' (ts 3337). However, his Honour then went on to inform the jury, for the first time and by way of comment, of his view on that issue (ts 3337 - 3338).

38 The trial judge said towards the conclusion of his redirection:

Now, again I make it clear to you, ladies and gentlemen, that you need to be satisfied of each one of the elements beyond reasonable doubt. It would not be enough for example if you were satisfied that there was deceit in relation to count 1 but were not satisfied of each of the other elements beyond reasonable doubt. They must exist.

However, when it comes to the fourth point, deceit or fraudulent means, you do not have to be satisfied that each and every one of the six points exists to be satisfied of that element.

So if you were satisfied that the first of them existed in relation to count 1, that is that anecdotal evidence was enough, that point, if you were satisfied of that beyond reasonable doubt, you wouldn't need to be satisfied of all six of those in relation to count 1, but you would still need to be satisfied of the other elements, one, two, three and four, all four of those elements beyond reasonable doubt.

That would only satisfy you beyond reasonable doubt of the fourth one if A [sic] existed. But you don't need to be satisfied that all six existed on each count to be satisfied with that element beyond reasonable doubt. One or more will be sufficient (ts 3344 - 3345). (emphasis added)

The ground of appeal: relevant legal principles

39 In Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434, the appellants, Mitchell and Fermanis, were tried with a third man, O'Connor, on six counts of fraud, contrary to s 409(1)(c) of the Code. Mitchell and Fermanis were convicted on all counts. O'Connor was acquitted on all counts.

40 Each of the charges alleged that Fermanis, Mitchell and O'Connor, with intent to defraud, by deceit or fraudulent means gained a benefit, namely an amount of money from a specified investor or complainant for a company, Pridecrest Pty Ltd.

41 The counts in the indictment did not identify any particular form of deceit or fraudulent means. However, at the trial, the State gave particulars.

42 The particulars identified a number of different deceits or fraudulent means, proof of any one of which would suffice to satisfy that essential element of the offences charged. Accordingly, there were a number of routes by which the jury could be satisfied that the accused had engaged in deceit or fraudulent means.

43 Steytler P (Roberts-Smith & McLure JJA agreeing) said:

In my opinion, these routes were not merely evidentiary. Rather, the fact to be found, namely the particular form of deceit or fraudulent means used, is an essential ingredient of the offence and the jury was required to be unanimous in finding that ingredient proved. Of course, that does not mean that they had to be unanimous in their acceptance of evidence which led to that finding. So, for example, each accused could not properly be convicted in circumstances in which the deceit or fraudulent means was found by six of the jurors to be representation A, and by the other six to be representation B. They had to be unanimous in finding either or both of representations A and B proved. However, each might rely upon different evidence in finding that representation proved [69].

44 His Honour noted that his conclusion was 'supported by the preponderance of authority' [71]. His Honour referred, in particular, to Infirri v The Queen (1981) 5 A Crim R 132; Brown v The Queen (1984) 79 Cr App R 115; More v The Queen (1988) 86 Cr App R 234; and R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299.

45 Steytler P concluded that Fermanis was 'a case in which the trial judge was required to direct the jury that [in the case of each charge] each of the jurors had to base his or her decision to convict on the same route or routes' [73]. His Honour said that, because that direction was not given, it followed 'inevitably that the convictions [were] unsafe and should be set aside' [73].

46 In Infirri, the appellant was convicted of attempting to obtain $66,227 from a company, with intent to defraud, by falsely pretending to an agent of the company that a quantity of jewellery wholly owned by him and valued at $66,227 had been stolen.

47 The false pretences relied on by the Crown were misrepresentations to the effect that, first, the appellant owned a quantity of jewellery valued at $66,227 and, secondly, that the jewellery had been stolen.

The cases say that it is enough to sustain a conviction [by] the making of one false pretence and for the purposes of the completed offence reliance upon it be 'proved' and that, I think, in the case of a trial by jury can only mean proved to the satisfaction of the jury. If the jury at the end of the day do not join in finding a particular false pretence to have been made then the making of that false pretence, as it seems to me, has not been 'proved'. The making of the false pretence is an element of the offence charged and proof of that element has not been achieved unless all members of the jury or, in the case of a majority verdict, ten of the jury join in saying so. It is different, of course, when the fact to be proved is not an element of the offence charged (134).

49 In Brown, the appellant was convicted, after trial, of four counts of fraudulently inducing the investment of money and one count of attempting to do so. Each count contained particulars of a number of different statements which the prosecution relied on as constituting the inducement. The trial judge directed the jury that it was immaterial if some of the jurors were satisfied that one of the statements had been made out and the remaining jurors were not satisfied about that statement but were satisfied that another statement had been made out, provided all of the jurors were satisfied that the appellant had made a dishonest inducement which operated upon the mind of the investor to whom it was made and caused him or her to act in the way he or she did. The Court of Appeal (Criminal Division) held that the trial judge had misdirected the jury. Eveleigh and Robert Goff LJJ and Hollings J said 'it is a fundamental principle that in arriving at their verdict the jury must be agreed that every single ingredient necessary to constitute the offence has been established' and that in Brown '[t]he false statement [was] an essential ingredient' (117).

50 In More, Neill LJ, Jupp and Hodgson JJ expanded upon the principles enunciated in Brown, as follows:

It seems to us ... that it will only be necessary to give a direction on the lines set out in Brown in the comparatively rare cases where it emerges at some stage in the course of the trial, or as the result of a question asked by the jury, that there is a risk of a disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved. In Brown itself the direction became necessary because the jury's question focussed attention on the fact that some members might be satisfied as to one of the statements alleged to have been made, whereas other members might not have been satisfied as to that statement but satisfied as to one of the other statements alleged. The Court of Appeal accordingly laid down that in such a case the jury should be directed as to the necessity of unanimity. Such a direction will also be necessary where there is a discernible risk in, for example, a case involving obtaining property by deception by a number of representations, that the jury might fail to be unanimous as to the making, falsity and efficacy of at least one of the representations (244).

On appeal in More, the House of Lords found it unnecessary to consider the correctness of the Court of Appeal's decision on that point (251 - 252) (Lord Ackner; Lord Keith of Kinkel, Lord Elwyn-Jones, Lord Brandon of Oakbrook & Lord Templeman agreeing).

51 In Walsh, the appellant applied for leave to appeal against his conviction, after trial, of one count of conspiracy to defraud and three counts of perverting the course of public justice. The appellant argued, relevantly for present purposes, that 'each count alleged more than one discrete act by the [appellant], that the jury were not directed sufficiently on the need for unanimity, and so the trial miscarried' [39]. The Court of Appeal of Victoria dismissed the appeal.

52 Phillips and Buchanan JJA (Ormiston JA agreeing) made these observations about the question of unanimity, in the sense of the need for the jurors to agree among themselves as to the route by which a verdict of guilty is reached as distinct from whether the verdict is ultimately delivered by 12 jurors or by a majority (when such is permitted):

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 by which to determine guilt. The question which has then arisen, in a number of cases now, is whether the jury must be directed to be unanimous, not only in the verdict, but also in the route by which that verdict is reached [43].

53 After reviewing numerous cases (including Brown and More), Phillips and Buchanan JJA said:

To sum up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on 'unanimity' about one or other or more of those bases, at least if they do not 'involve materially different issues or consequences' ... The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend 'upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence'. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud [57].

See also Pratten v The Queen [2014] NSWCCA 117 [36] - [51] (Meagher JA, Fullerton & Hamill JJ).

54 In R v Lake [2007] QCA 209; (2007) 174 A Crim R 491, the appellants were convicted of conspiracy to import a commercial quantity of cocaine, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The Court of Appeal of Queensland dismissed the appeals. Holmes JA (McMurdo P and Jerrard JA agreeing) noted that the need for jury unanimity has been discussed in many cases dealing with offences other than conspiracy and that a distinction has been drawn between situations in which unanimity is required and others in which it is not essential [64]. Her Honour said she was convinced that the status of the commission of an overt act, as an ingredient of the offence in question and as an essential element which the prosecution had to prove, required unanimity [67]. However, her Honour concluded that, 'in the peculiar circumstances of this case, in which there was no dispute as to the happening of any overt act relied upon by the prosecution', the failure of the trial judge to direct the jury in relation to unanimity was without consequence [68]. Her Honour added that there was 'no basis on which the jury might seriously be thought to have disagreed as to any of those acts' [68]. Accordingly, there was no reason to suppose that any miscarriage of justice was occasioned by the absence of the direction.

55 In Loone v The State of Tasmania [2008] TASSC 7; (2008) 17 Tas R 378, the appellants were jointly charged with 12 counts of dishonestly acquiring a financial advantage. One appellant (PL) was convicted of three counts and the other (ML) was found guilty of two counts. Both appealed on the basis that the convictions were unsafe or unsatisfactory. The Court of Criminal Appeal of Tasmania allowed the appeals. A majority of the court ordered a retrial.

56 Each count pleaded that PL and ML 'by means of a deception, namely by dishonestly invoicing Patrick's Tasmania Ltd for ....' and in each case there followed a few words describing the work done and materials supplied or fuel delivered, and the value of the financial advantage alleged to have been acquired.

The jury was required to consider a number of discrete acts which might have involved instructions given by the first appellant to the second, or by either to another officer or employee of the company, the request, if any, to a supplier or provider of services separately in respect of each count and to agree, not on a general verdict based on general conduct, but unanimity of conclusion of the particular event of deception (R v Brown (1984) 79 Cr App R 115; R v More [1987] 1 WLR 1578; Infirri v The Queen (1981) 5 A Crim R 132) [72].

58 The trial judge in Loone failed clearly to identify, in her summing up, the words or conduct alleged to have been the deception. The jury could be satisfied of the acquisition of a financial advantage by PL or ML, but was still required to find, in relation to each count, that the advantage had been acquired as a result of an identified act of deception. The absence of a direction as to the requirement for the jury to be unanimous on the particular act of deception made the convictions unsafe and unsatisfactory.

59 In R v Dale [2012] QCA 303, the appellant was convicted, after trial, of seven fraud-based offences. He appealed against conviction on eight grounds. Ground 7 alleged that the trial judge erred in failing to direct the jury that, for each count, where more than one particular of dishonesty was given, in order for them to be satisfied of dishonesty, it was necessary that they be unanimous as to the particular, or particulars, of which they were satisfied.

60 The trial judge in Dale outlined a process for the jury to follow in the course of their deliberations. First, the jury should decide what was said by the appellant to each of the investors or complainants. Secondly, once the jury had determined that matter, the jurors should ask themselves whether the particular investor or complainant they were considering was induced to pay the moneys because of what the appellant had said to him or her. Thirdly, the jury should assess whether the prosecution had proved that what the appellant did was dishonest, and that should be done by applying the standards of ordinary, honest people. Fourthly, the jury should determine whether the appellant realised that what he had done was indeed dishonest by those standards [92].

61 The Court of Appeal of Queensland held that a direction of the kind required in Fermanis was unnecessary. Gotterson JA (Margaret McMurdo P & Mullins J agreeing) gave two reasons for that conclusion.

62 First, the trial judge's detailed directions 'substantially directed the jury that unanimity in this respect was required'. Gotterson JA elaborated:

Whilst he did not say so in terms, the requirement for unanimity underpinned the directions he did give them as to how they were to go about their task. A fair reading of the directions indicates that when he addressed the jury members as to what 'you' should do, he was referring to them acting collectively. For example, his suggestion that 'you decide firstly what was said by the defendant to each of the investors' would have been clearly understood by the jury to mean that they were to make that decision collectively as a jury decision. It is inconceivable that the jury would have understood the learned judge to be referring to decisions made individually by each jury member without discussion with the others [94].

The trial judge's meaning was clear: that they together needed to be satisfied that one particular had been satisfied to the requisite standard [95].

63 Secondly, the process which the trial judge outlined for the jury to follow, in the course of their deliberations, obviated the kind of risk alluded to in More in a case involving obtaining property by deception by a number of misrepresentations; namely, that the jury might convict yet had failed to be unanimous as to the making, falsity and efficacy of at least one of the representations [95].

64 Gotterson JA distinguished Fermanis on the basis that there were 'highly significant differences' in that case arising from the number of accused and the nature of the allegations as alternatives [96].

65 In Magnus v The Queen [2013] VSCA 163; (2013) 41 VR 612, the appellant was convicted, after trial, of 53 charges of obtaining financial advantage by deception arising from his conduct in soliciting investments for a private betting fund. Each charge contained, in the indictment, between three and six particulars, being different false representations which the appellant was alleged to have made to the various investors or complainants. On appeal, the appellant alleged that the trial judge had erred in failing to direct the jury that, in relation to each count, the jury had to be unanimous as to the particular statement that was materially misleading. The Court of Appeal of Victoria dismissed the appeal.

66 Buchanan, Ashley and Redlich JJA held that Magnus was not a case in which a direction of the kind required in Fermanis was necessary. The evidence of nine of the investors or complainants meant that the Crown case rose or fell on one representation, while the evidence of the two remaining investors or complainants meant that the Crown case rose or fell on another representation [62]. There was no prospect of the jury convicting the appellant on any charge except if it was unanimous in finding that a particular representation had been made and had been operative with respect to the particular transfer of funds [63]. The trial judge's summing up addressed the issue of operative representation in the manner in which that issue had crystallised at the trial [64].

The ground of appeal: the State's submissions

67 Counsel for the State accepted that, although the trial judge directed the jury on the need for a unanimous verdict on each count, his Honour did not 'specifically' direct the jury that it was necessary for them to agree unanimously as to the particular act or representation found to constitute deceit or fraudulent means.

68 Counsel accepted that his Honour directed the jury, appropriately, that in order to find the element of 'by deceit or fraudulent means' proved in relation to a particular count, it was not necessary for the State to prove that all of the alleged acts or representations had been made.

69 However, counsel conceded, correctly, that it was necessary for the jury to be unanimously agreed that the same acts or representations had been proved beyond reasonable doubt in order to establish the element of 'by deceit or fraudulent means'.

70 It was submitted that the trial judge's summing up did not indicate that the jury could differ as to the act or representation (if, indeed, they relied on more than one). It was also submitted that his Honour's summing up 'was such that it was made sufficiently clear to the jury that a unanimous conclusion of guilt, on a shared basis, was required'.

71 Counsel for the State referred to the following passages in his Honour's summing up:

(a) in instructing the jury about whether the appellant had an intention to defraud and whether he used deceit or fraudulent means, his Honour said, 'in other words, when you, the jury, look at the facts of the case that you're satisfied beyond reasonable doubt that deceit or fraudulent means were employed' (ts 3171) (emphasis added); and

(b) in instructing the jury about whether the alleged deceit or fraudulent means caused the alleged detriment to Phoenix, his Honour said, 'when you, the jury, look at the facts of the case in order to find him guilty of this element you must be satisfied beyond reasonable doubt that the deceit or fraudulent means caused the detriment' (ts 3171) (emphasis added).

See also the passages from the summing up which I have reproduced at [31], [37] and [38] above.

72 According to counsel, the jury would have 'clearly understood' from those and other passages in the summing up that they were 'to make their decisions collectively as a jury decision'. Counsel emphasised the word 'you' in relevant passages in the summing up and relied on the observations of Gotterson JA in Dale [94] - [95].

73 Counsel for the State noted that the trial judge directed the jury on a number of occasions that, in order to find the element of 'by deceit or fraudulent means' proven, it was not necessary for the State to satisfy them that all of the alleged acts had occurred or the alleged representations had been made. For example, during the summing up his Honour instructed the jury:

However, the State does not need to prove each and every one of these elements of deceit and fraudulent means to prove that Dr Ardrey is guilty in relation to each one of the counts. So for example, if you were satisfied that - taking the first one, if you were satisfied on count 1 that Dr Ardrey did, in fact, know that the level of science - that the company did not have the required level of science but nonetheless represented to the company that he could, with the employment of consultants, produce such a package within varying but short timeframes, if you were satisfied of that one but you weren't satisfied of any of the others, you would still - and when I say, 'Satisfied', satisfied beyond reasonable doubt - you would still find him guilty of that if all the other elements had been proved beyond reasonable doubt (ts 3185 - 3186). (emphasis added)

74 It was submitted that '[his Honour's] meaning in that passage was clear'. The jury was addressed by the collective pronoun 'you' and, accordingly, instructed in effect that:

(a) it was sufficient if 'they came to a united position as to one particular'; and

(b) the jury, together, not individually, needed 'to be satisfied that one particular had been established to the requisite standard'.

75 According to counsel, nothing in the summing up expressly or impliedly authorised the jury 'to reach a unanimous conclusion on guilt without any common basis about the particular found proven'.

76 The fifth particular alleged that the appellant presented the invoices to Phoenix and sought payment of them well knowing that the payees did not exist, as he had represented them to be, because they did not exist, were not appropriately qualified or did not actually do the work.

77 Counsel for the State argued that the deceit or fraudulent means identified by the State in the fifth particular was that the Consultants, as the appellant represented them to be, were not 'legitimate'. Counsel noted that there was evidence upon which the jury could find that the Consultants did not exist and that, in fact, the work had been done by the appellant personally (ts 3319). According to counsel, the evidence in relation to the fifth particular did not provide numerous or alternative routes to conviction. Rather, the fifth particular was directed towards establishing that the appellant induced Phoenix to believe that it was paying 'legitimate consultants for legitimate work' when, in fact, it was not. Accordingly, the fifth particular was not made up of a number of 'essential ingredients' of the offences alleged against the appellant, but was 'centred on the appellant's representation that the [Consultants] were legitimate'.

78 The State relied on a number of different deceits or fraudulent means. The trial judge directed the jury, in accordance with the State's case, that proof beyond reasonable doubt of any one of the different deceits or fraudulent means in relation to a count would be sufficient to prove the element of the offence that the appellant had engaged in deceit or fraudulent means.

79 In the circumstances, there were a number of routes by which the jury could be satisfied that the appellant had engaged in deceit or fraudulent means. These routes were not merely evidentiary. The fact to be found in relation to each count, namely the particular form or forms of deceit or fraudulent means used by the appellant, was an essential ingredient of the offence. The jury was required to be unanimous in finding that the ingredient in question had been proved beyond reasonable doubt. Although the jury had to be unanimous in finding that at least one (and the same one) of the various deceits or fraudulent means, as particularised in his Honour's summing up, had been proved, each juror might rely on different evidence in finding that such deceit or fraudulent means had been proved.

80 The trial judge did not expressly direct the jury that, when considering in relation to each count whether the appellant had used deceit or fraudulent means, the jury had to be unanimously agreed that the appellant had used at least one (and the same one) of the various deceits or fraudulent means that had been particularised.

81 Although his Honour did give directions to the jury about the need for them to arrive at unanimous verdicts, those directions related only to their verdicts; that is, whether the appellant was guilty or not guilty of each count.

82 In my opinion, the directions which the trial judge actually gave to the jury did not, either substantially or by necessary implication, instruct the jury that in relation to each count unanimity about at least one (and the same one) of the particular deceits or fraudulent means was required. There was a discernible risk that the jury might fail unanimously to agree that the appellant used at least one (and the same one) of the particular deceits or fraudulent means, in relation to each count, as alleged by the State in its particulars. My reasons for those opinions are as follows.

83 First, on a fair reading of his Honour's summing up as a whole, it cannot safely be concluded that the directions which his Honour actually gave to the jury would have been understood by them as requiring their unanimous agreement, in relation to each count, about at least one (and the same one) of the particular deceits or fraudulent means. On a fair reading of the summing up as a whole, there was a real risk that the jury may have understood that if they were unanimously of the view, in relation to each count, that at least one of the particular deceits or fraudulent means had been proved beyond reasonable doubt, it was open to them to convict the appellant even if they were not unanimously agreed about the same particular.

84 Secondly, the fifth particular of deceit and fraudulent means, and the trial judge's directions on it, underscored the necessity for a clear and unambiguous instruction from his Honour to the effect that the jury must agree unanimously, in relation to each count, about at least one (and the same one) of the particular deceits or fraudulent means.

85 The fifth particular alleged that the appellant presented the invoices to Phoenix and sought payment of them well knowing that the payees did not exist, as he had represented them to be, because they did not exist, were not appropriately qualified or did not actually do the work.

86 After the jury retired to consider their verdicts, they sent a note to his Honour seeking clarification. The note read:

Please assist us with clarifying if the six points mentioned as in the State's case is for satisfying point 3, 'intent to defraud', or point 4, being 'deceit or any fraudulent means' (ts 3336).

87 The trial judge discussed the jury's note with the prosecutor and defence counsel and then directed the jury, relevantly, as follows:

Then we come to the fifth of the points which relates to the consultants themselves. And that is the case, you'll remember, that the State says that Dr Ardrey presented invoices to the company and sought payment of them well knowing the payees did not exist as he had represented them to be, because in the case of Silicon Valley the consultants did not exist, or they were not appropriately qualified, or they did not actually do the work.

Now, the State doesn't need to prove every one of those. For example, if you were satisfied that the consultants didn't exist that would be enough. If you're satisfied beyond reasonable doubt that would be enough to satisfy you of this aspect of the deceit or fraudulent means. But the State says that if you weren't satisfied that they didn't exist, you could still be satisfied that they were not appropriately qualified or that they hadn't done the work.

In relation to the Franklin Chen invoices, the State says that consultants did not exist, leaving aside Franklin Chen, because there was mention of another female and so the State - it's a matter for you, but the State seem to be conceding the fact that Chen existed, but they say that the other consultants did not exist.

The State in this regard relies upon that Franklin Chen was not appropriately qualified or that they did not actually - they, being the consultants, didn't actually do the work. So that's the fifth point (ts 3339 - 3340). (emphasis added)

88 It is apparent from this passage that in relation to the fifth particular the State relied on the following:

(a) As to invoices issued by the consultants connected with Franklin Chen Associates, the consultants (other than Franklin Chen) did not exist, or Franklin Chen was not appropriately qualified, or Franklin Chen did not actually do the work.

(b) As to invoices issued by the consultants referred to as Silicon Valley Pharmaceutical Partners, the consultants did not exist, or they were not appropriately qualified, or they did not actually do the work.

89 Accordingly, particular 5 comprised a number of different alternative deceits or fraudulent means. The real risk that the jury may have understood that if they were unanimously of the view, in relation to each count, that at least one of the particular deceits or fraudulent means had been proven beyond reasonable doubt, it was open to them to convict the appellant even if they were not unanimously agreed about the same particular, was especially acute in the context of particular 5.

90 Thirdly, there was ambiguity in his Honour's direction to the jury on 3 March 2015 that 'you [do not] need to be satisfied that all six [particulars] existed on each count to be satisfied with that element [namely, that the appellant used deceit or fraudulent means] beyond reasonable doubt ... [o]ne or more will be sufficient' (ts 3345). There is a distinction between directing the jury that 'you must all be satisfied beyond reasonable doubt of one or more of the particulars', on the one hand, and directing the jury that 'you must be satisfied beyond reasonable doubt of one or more of the particulars', on the other. The second formulation leaves open the possibility that different jurors may be satisfied beyond reasonable doubt about different particulars. His Honour's direction did not clearly fall within the first formulation.

91 His Honour's use of the word 'you', in the passages relied on by counsel for the State and in the context of the summing up as a whole, was attended by ambiguity. There was a real risk that the word 'you' would not have been understood by the jury as referring to the jury acting collectively and unanimously, in relation to each count, about at least one (and the same one) of the particular deceits or fraudulent means.

92 Fourthly, unlike in Dale, the trial judge did not outline a process for the jury to follow, in the course of their deliberations on the factual issues, which obviated the kind of risk alluded to in Fermanis.

93 As I have mentioned, in Dale Gotterson JA distinguished Fermanis on the basis that there were 'highly significant differences' in Fermanis arising from the number of accused and the nature of the allegations as alternatives [96]. In the present case, there was, of course, only one accused, but the appellant's trial was lengthy and reasonably complicated, there were 19 counts, there were six particulars of the deceits or fraudulent means relied on by the State and, within the fifth particular, there were three sub-alternatives. There were some reasonably subtle variations as between some of the particulars. See, for example, the second particular read with the second sub-alternative of the fifth particular and the third particular read with the third sub-alternative of the fifth particular. Fermanis is not relevantly distinguishable from the present case.

94 Fifthly, against the background of the numerous possibilities in relation to the application of the six particulars (and the three sub-alternatives within the fifth particular), his Honour directed the jury that on the State's case those possibilities did not 'necessarily relate to every single count' (ts 3337) and that it was a matter for the jury 'as to whether they relate to a count or not' (ts 3337). So, the prosecutor was not required to assign specific particulars to each count in the indictment. The jury was left to work it out for themselves. This was unsatisfactory in the context of a lengthy and reasonably complex trial with 19 counts and numerous possibilities in relation to the deceits or fraudulent means relied on by the State.

95 Sixthly, unlike in Magnus, the State's case did not rise or fall on one representation.

96 It is, of course, relevant that the appellant's experienced defence counsel did not seek any additional directions or redirections from the trial judge in relation to the point raised by the ground of appeal. However, despite the point being of significance, it was overlooked by the prosecutor as well as by his Honour and defence counsel. It was not suggested by counsel for the State (and it could not reasonably have been suggested) that there was any forensic advantage to the appellant's case in defence counsel not seeking an additional direction or a redirection from his Honour on the point.

97 In the circumstances, I am satisfied that a miscarriage of justice was occasioned by his Honour's failure to direct the jury that, in relation to each count, they must agree unanimously as to the particular deceit or fraudulent means that was used by the appellant and that caused the detriment.

The appellant's application for leave to adduce additional evidence: relevant legal principles

99 The appellant's application for leave to adduce additional evidence in the appeal is supported by three affidavits, each sworn by him on 14 April 2016.

100 The proposed additional evidence is substantial. The additional evidence includes numerous documents filed or discovered in pending civil proceedings in the General Division of the Supreme Court, namely CIV 3072 of 2011 between Phoenix as plaintiff and the appellant as defendant. The evidence also includes numerous business records and publicly available documents. The pending proceedings relate to the detriment which the appellant caused to Phoenix, as alleged in the criminal proceedings the subject of this appeal.

101 Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Criminal Appeals Act. Section 40(1) provides, relevantly:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

...

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence.

102 In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):

While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

103 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).

104 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 - 302 (Toohey & Gaudron JJ).

105 In the present case, some of the proposed additional evidence is 'new' evidence and some of it is 'fresh' evidence.

The proposed additional ground of appeal: relevant legal principles

106 By s 30(3)(a) of the Criminal Appeals Act, in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

107 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

See also Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439, 450 (Gaudron, McHugh & Gummow JJ).

108 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)

See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

109 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 - 493); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

110 The appellate court's task is not to consider, as a question of law, whether there was sufficient evidence to sustain a conviction. See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ); M (492 - 493); SKA [20].

111 Rather, the appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the evidence (in particular, the competing evidence). See SKA [22], [24].

112 However, an appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].

The appellant's application for leave to adduce additional evidence and add the proposed additional ground of appeal: the appellant's submissions

113 Prior to the hearing of the appeal, the appellant filed written submissions in support of his application for leave to adduce additional evidence and add the proposed additional ground of appeal. The submissions were prolix and difficult to understand.

ARDREY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 154 (1 September 2016)

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ARDREY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 154 (1 September 2016)

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