Barker, T.F. v. The Queen [1994] FCA 1041

Federal Court of Australia|1991-07-17|Before: O'Loughlin JJ

The appellants Janice Doreen June Harper and Robert George Campbell were convicted of a count of defrauding the Commonwealth. On five other counts in the same indictment, three of defrauding the Commonwealth and one of engaging in organised fraud and one count of perverting the course of public justice, the jury were unable to agree on a verdict concerning Mr. Campbell. The appellant Terence Francis Barker was charged with Mr. Campbell in two of the three counts of defrauding the Commonwealth and also an the count of perverting the course of public justice. Mr. Barker was convicted on those counts and on a further count of defrauding the Commonwealth and on a count of engaging in organised fraud. Concerning a further count against Mr. Barker of defrauding the Commonwealth the jury were unable to agree on a verdict. Each appellant appealed against his or her conviction on each count on which a verdict of guilty was given against him or her. The appeals were heard successively

The counts arose out of the affairs of Ellen Elazabeth Chaplin and her husband Christopher John Chaplin who had conducted a jewelry business in the Australian Capital Territory. For several years before 1989 they had lodged false aiuncome tax returns. When they learned of the investigation of their affairs by officers of the Australian

Taxation Office they consulted Mr. Barker, an accountant

= - 3 _ employed in Canberra by Touche Ross who had rendered them accountancy services in the course of his employment and with whom they were on friendly terms. According to the Crown case at trial, Mr. Barker advised them of means to transfer money and other property of theirs to persons in England under an arrangement that later, when they went to England, the money and property, less a fee for those persons' services, would be returned to them. Mr. Barker further advised them, as the Crown alleged, that those transfers be represented to the Australian Taxation Office as having been made in performance of commercial transactions quite different from the arrangements they would in fact make in accordance with Mr. Barker's advice. The purpose, according to the Crown case, was not merely to get the money and property to England, but to induce officers of the Australian Taxation office ("the A.T.O.") to believe that the assets of Mr. and Mrs. Chaplin available to satisfy their ampending taxation liabilities were of much less value than they were in fact. To that end, the Crown alleged, Mr. Barker advised Mr. and Mrs. Chaplin to pretend to make with Teckvest Pty. Ltd., a foreign company said to be controlled by a resident of Great Britain, Vincent Anthony Hillsdon, a written contract for the sale by Teckvest Pty. Ltd. (""Teckvest") to Mr. and Mrs. Chaplin of a computer program for use in currency trading for a pretended price of more than $3,000,000. When the computer program proved to be worth on the market much less than the price pretended to be paid for it, the A.T.O. would believe that Mr. and Mrs.

Chaplin's assets (as earlier known to them) had lost in value

-4- the amount by which the market value of the computer program fell short of the price they had, as the A.T.O. would believe, paid for it. According to the Crown case, Mr. Barker assisted Mr. and Mrs. Chaplin to implement that scheme by helping to create documents by which the pretended transaction with Teckvest appeared to have been effected, and by arranging that Mr. Halisdon and Teckvest should play their pretended as well as their real parts in the scheme. Mr. Campbell was a solicitor who, according to the Crown case, was made privy to the scheme and helped both to prepare the pretended contract for sale of the computer program and to represent the contract to the A.T.O. as what it pretended to be : a bone fide commercial transaction. In respect of those allegations the farst count of the indictment was laid, alleging that Mr. Campbell and Mr. Barker, together with Mr. and Mrs. Chaplin (who were not the subject of this indictment) "between 1 February 1989 and 31 October 1989 defrauded the Commonwealth by deceiving the Australian Taxation Office as to the financial circumstances of Ellen Elizabeth Chaplin and Christopher John Chaplin and in particular as to the true circumstances of the agreement entered into between the said Ellen Elizabeth Chaplin, Christopher John Chaplin, Teckvest Pty. Ltd. and Style Investments Pty. Ltd. on or about 5 May 1989 and the payment of a total sum of $A3,358,737.00 to Vincent Anthony Hillisdon between 1 April 1989 and 30 June 1989". Mr. Barker was convicted on that count. The jury

failed to agree on a verdict in respect of Mr. Campbell.

Mr. and Mrs. Chaplin bought some pink Argyle diamonds and, as the Crown contended, caused them to be delivered to Mr. Hillsdon under an arrangement between them and him that he would later return the diamonds to the Chaplins in England, whence they planned to go. The second count of the indictment alleges that Messieurs Campbell and Barker were parties, together with Mr. and Mrs. Chaplin, to

the defrauding of the Commonwealth by deceiving the A.T.0O. "as to the true circumstances of the arrangements between Ellen Elizabeth Chaplin, Christopher John Chaplin and Vincent Anthony Hilisdon as to the transfer to Vincent Anthony Hillsdon of a quantity of pink Argyle diamonds and their return to the said Ellen Elizabeth Chaplin and Christopher John Chaplin". The Crown case was that the A.T.O. was told that the diamonds had been sold to Teckvest at a loss. On this count Mr. Barker was convicted, but the jury failed to agree on a verdict in respect of Mr. Campbell, as they did also with respect to the third count. In that count he was charged alone with defrauding the Commonwealth on or about 4 September 1989, being an occasion other than those referred to in counts 1 and 2, by deceiving the A.T.O. as to the financial circumstances of Mr. and Mrs. Chaplin and the ability of each of them to pay the required taxation and penalties due under

The fourth count charged Mr. Barker and Mr. Campbell with perverting the course of public justice. Having served

on Mr. and Mrs. Chaplin notices of amended assessments to

6 - income tax in amounts aggregating more than $3,000,000, the A.T.O. sought and was granted by the Supreme Court of the Australian Capital Territory an injunction restraining removal by the Chaplins of assets out of the jurisdiction. In support of applications by the Chaplins for discharge or variation of the injunction an affidavit by Mrs. Chaplin was filed in that "proceeding. The Crown case was that some of the content of the affidavit was, to the knowledge of Mr. Barker and of Mr. Campbell, false and that each had assisted Mrs. Chaplin to draw the affidavit, knowing that it would be sworn and filed in the proceeding and with intent to pervert the course of justice in the proceeding. Mr. Barker was convicted. The

jury failed to agree on a verdict concerning Mr. Campbell.

The fifth count charged Mrs. Harper and Mr. Campbell, who was her husband, with defrauding the Commonwealth by deceiving the A.T.O. concerning an agreement for the sale to a company owned by them of a jewelry business the Chaplins had carried on at Manuka in the Australian

Capital Territory. Each was convicted on that count.

Each of the sixth and seventh counts charged Mr. Barker with defrauding the Commonwealth by furnishing an income tax return in which he omitted to include his total income, in the sixth count in respect of the year ended 30 June 1990 and in the seventh count in respect of the year ended 30 June 1989. He was convicted on the seventh count.

The jury failed to agree on a verdict in respect of the sixth

7J- count. The omission alleged in respect of the seventh count was of a payment to Mr. Barker of $45,000 by the Chaplins. The Crown case was that the money was a reward for services rendered to the Chaplins by Mr. Barker. He contended that it was a gift, unrelated to any service he had rendered, and therefore not assessable income for the purposes of the income

The e2zghth count charged Mr. Barker with having engaged in organised fraud, an offence created by s.83 of the

"(1) A person who engages in organised fraud is guilty of an offence against this section punishable, upon conviction, by:

(a) aif the offender is a natural person - a fine not exceeding $250,000 or umprisonment for a period not exceeding 25 years, or both; or

(b) if the offender 1s a body corporate - a fine not exceeding $750,000.

(2) A person shall be taken to engage in organised fraud if, and only if, he or she engages, after the commencement of this Act, in acts or omissions:

(a) that constitute 3 or more public fraud offences; and

(b) from which the person derives substantial benefit.

(3) Where a person 1S charged with an offence against subsection (1) in relation to a number of public fraud offences and the jury is not satisfied that the person is guilty of the offence against subsection (1) but is satisfied that the person 1s guiity of one or more of the public fraud offences, the jury shall acquit the person of the offence against subsection (1) and may find the person guilty of that

-~ 8 - public fraud offence or those public fraud offences and the person 1s punishable accordingly.

'public fraud offence' means an offence under any of the following provisions:

(b) sections 5, 6, 7 and 8 of the Crimes (Taxation Offences) Act 1980."

Counts 1, 2 and 7 charged each an offence by Mr. Barker under s.29D of the Crimes Act and convictions resulted. He was

The inclusion in the indictment of both the count of organised fraud by Mr. Barker and the public fraud offences charged against him in counts 1, 2, 6 and 7 was said to be impermissible. Sub-section 83(3) aundicates a legislative intention, it was submitted, that the public fraud offences proposed to be proved in support of a charge of organised fraud, as satisfying the requirement of paragraph 83(2)(a), be not made the subjects of separate charges, but be the subjects of conviction under the authority conferred by sub-section 83(3) in the event that the jury is not satisfied of the guilt of the accused on the organised fraud charge but 1s satisfied of the accused's guilt of one or more of the public fraud

sub-section 83(3) for conviction of the public fraud offences

-9- notwithstanding that those offences are not the subjects of separate counts in the indictment. If the public fraud offences are the subjects of separate counts, the provision made by sub-section 83(3) seems to be otiose. Joinder in the one indictment against a person of several charges of public fraud offences might attract the exercise of the power conferred by State and Territory statutes to order separate trial of one or more of those charges. The legislature may have considered that provision ought to be made to deny practical effect to such an order for separate trials in a case where there 1s also charged in the indictment against that person an offence against s.83(1) and where any of the charges ordered to be separately tried is of a public fraud offence to be ~ and which is in fact - proved as an element of the charge under sub-section 83(1) and where the person ais acquitted of that latter charge. Whatever was the legislative concern which led to the enactment of sub-section 83(3), we do not find expressed or implied a legislative intention that joinder of counts in the one indictment, which sub-section 365(2) of the Crimes Act 1900 (A.C.T.) contemplates, be precluded in respect of counts charging public fraud offences and a count of an offence against sub-section 83(1) in relation to which the public fraud offences are offences proposed to be proved in satisfaction of the requirement

public fraud offences with the charge of organised fraud

10 - deprived, or might have deprived, Mr. Barker of that separate consideration of each charge by the jury which the law requires. It is difficult to conceive that the required separate consideration of each charge in those circumstances was any less likely than that separate consideration would have been accorded each constituent element of the charge of organised fraud, including the constituent elements which paragraph 83(2)(a)° creates, if none of the public fraud offences had been included in the indictment. In either case the law requires that the jury be persuaded beyond reasonable doubt of each of those constituent elements. Literally understood, the words in sub-section 83(2), "1f ... he or she engages ... in actsS or omissions ... that constitute 3 or more public fraud offences", convey no sensible meaning. The constituent elements of the public fraud offences specified in sub-section 83(4) can be constituted only by one or more voluntary acts or omissions and one or more further specified states of mind. Each of the offences specified in the definition of "public fraud offence" in s.83(4) are of that character. In order to give meaning to the sub-section it is necessary to construe it as if there were inserted after the words "acts or omissions" the words "having the intentions knowledge and beliefs". It is also necessary to understand that sub-section as requiring, not that each act or omission be a constituent element of all three or more offences, but that each be a constituent element of one of the three or more public fraud offences. The jury must be satisfied beyond

reasonable doubt of the occurrence of all the acts or

-11- omissions and of the existence of all the mental states "that constitute" each of the "3 or more public fraud offences" contemplated by any charge of an offence against sub-section 83(1). This will be so whether or not the trial of that charge 1s the contemporaneous trial also of charges of those

It was submitted by counsel for Mr. Barker that "a properly instructed jury could arrive at the absurd result where they found the appellant not guilty of counts 1, 2, 6 and 7, not guilty of count 8, but, by virtue of the statutory alternative, guilty of all or any of counts 1, 2, 6 and 7". This submission seems to rest on an assumption that a properly anstructed jury might fail of satisfaction beyond reasonable doubt when considering each of counts 1, 2, 6 and 7, but would thereafter embark on a further consideration of the charges in those counts in order to determine whether or not to convict the accused of the charge in count 8. It also assumes that upon that further consideration the jury might reach satisfaction beyond reasonable doubt of his guilt of one or more of those charges of which they had previously resolved to acquit him. Why that should occur we do not understand. The assumptions attribute irrational conduct to the jury. The learned trial judge's charge to the jury naturally indicated that they would not need, when considering count 8, to give further consideration to the requirements of paragraph 83(2)(a) 1£ they had previously reached a conclusion as to the

It was a ground of Mr. Barker's appeal that there had been misdirection by the learned trial judge as to one of the elements of the offence charged 1n count 8. Counsel for Mr. Barker contended that what 1S required by paragraph 83(2)(b) 1s a derivation of a substantial benefit from each of the three or more public fraud offences commission of which had satisfied the requirement expressed in paragraph 83(2)(a). A substantial benefit which derived from fewer than three of the offences did not, ain his submission, satisfy the requirement expressed by paragraph 83(2)(b). The "substantial benefit" to which paragraph 83(2)(b) refers was said by the Crown to be the receipt by Mr. Barker of $45,000 from Mr. and Mrs. Chaplin. A letter concerning that sum signed by Mr. and

Mrs. Chaplin and sent to Mr. Barker, was in these terms:

As you know our present difficulties with the Taxation office are causing us, particularly Chris, a great deal of anguish. You advised that our tax commitment would be a large one and we decided to progressively sell most of our assets to meet the bill rather than wait to the last minute and be forced to sell, probably for lower prices.

When this is over and we have met our tax obligations Chris and I will take a long holiday probably back to England. We are anticipating that the currency dealing will be successful and that this will give us a comfortable income to live on. Will thas be subject to tax in Australia? JI suppose it will if we still reside here.

that Chris and I have been thinking about your family's situation and the huge loss of about $245,000.00 that you lost in that hotel business through your family trust company, Firmat Holdings Pty Ltd. We know that you cannot accept professional fees for these would have to go to Touche Ross and we wouldn't want to cause you any embarrassment by offering fees to you. Touche Ross will get all of their fees paid in full, in advance if they like.

So Chris and I would like to help your family by making a contribution of $45,000.00 to Firmat Holdings to help ease the financial strain imposed upon you and your family. This

1s a gift pure and simple. It is a 'thank you' for all your help and pleasant company, both business and personal in the past. We can

afford it for even after paying the Taxation Office its money and buying the currency trading programmes we will still be moderately comfortable.

We shall send Robert Campbell a copy of this letter with instructions to pay your company the sum shortly.

The evidence of Mrs. Chaplin was that the $45,000 was paid to Mr. Barker as a fee for his services in devising and implementing what according to her evidence was the fraudulent scheme, and that the letter was a copy of a draft given to her by Mr. Barker with a request that she and her husband have it typed on their business stationery because, as she swore Mr. Barker said, it was necessary that he "somehow account for this $45,000". In his unsworn statement to the jury Mr. Barker denied that he prepared a draft : he said he suggested some amendment of her draft of the letter. He said that the

$45,000 was a gift and that he was pleased to have a letter by

14 - means of which he could demonstrate to his employer that the

The learned trial judge did not direct the jury that the offence charged in count 8 was constituted only by the derivation of a substantial benefit from each of the three public fraud offences. He stated the requirement as derivation of "substantial benefit from those three or more public fraud offences". An alternative submission was advanced by counsel for Mr. Barker that a single "substantial benefit" derived from only one of the three offences would Satisfy the requirement of paragraph 83(2)(b), but only if that benefit be "linked with a pattern of conduct common to all three ox more offences". The learned trial judge's charge did not include any direction propounding that alternative

Counsel for the Crown, as well as counsel for Mr. Barker, suggested that s.83 contemplated some nexus, additional to that which sub-section 83(4) effects, between the three or more instances of criminal activity which paragraph 83(2)(b) requires. So much 1s perhaps suggested by the name which the legislature chose for the offence created by the section. That suggestion is, perhaps, confirmed by some of the observations by the Attorney-General when he moved the second reading of the Bill for what was enacted as the Proceeds of Crime Act 1987. The Attorney-General said

"Its purpose 1s to strike at the heart of major organised crime by depriving persons involved of the profits and instruments of their crimes. By so doing, it will suppress criminal activity by attacking the primary motive - profit - and prevent the re-investment of that profit in further criminal activity."

"The legislation also creates a new offence of organised fraud which 1s constituted by acts and omissions which constitute three or more public fraud offences from which the person has derived substantial benefit. Public fraud offences are breaches of sections 29D and 86A of the Crimes Act 1914 and sections 5, 6, 7 and 8 of the Crimes (Taxation Offences) Act 1980. This offence is specifically designed for persons who have been engaged in a pattern of conduct, over a period of time, from which they have benefited to the detriment of society. The Government has not followed the American precedents which centre around concepts of sophisticated methods, organisation or planning and specific monetary limits. Some of the most effective fraudulent activity has resulted from schemes of utmost simplicity."

The Explanatory Memorandum circulated with the Bill included

"The organised fraud offence is not directed at persons who commit a number of social securaty frauds from which they gain a relatively small monetary benefit. Rather, it is directed at persons who organise their affairs in such a way as to significantly defraud the revenue through unlawful activity amounting to fraud. The expression substantial benefit has been left undefined as the monetary amount involved in the fraud should not be taken as the determinant of guilt but should be considered together with the degree of planning, organisation, and persistent unlawful conduct in assessing culpability."

Sections 29D and 86A create indictable offences of,

16 - respectively, defrauding and conspiring to defraud the Commonwealth or a public authority under the Commonweaith. An extraordinary diversity of circumstances are comprehended by each of those offences. Sections 5, 6, 7 and 8 of the Crimes (Taxation Offences) Act 1980 on the other hand create a number of indictable offences relating solely to sales tax. In striking contract with ss. 29D and 86A, these sections define the offences they create in long sentences of complex structure, but they are all concerned with conduct and purpose directed to bring about the result that a person liable to pay sales tax is unable to pay that tax, "having regard to other debts" of that person. The conflation of the six sections specified in sub-section 83(4) does not seem to provide an

However suggestive the name of the offence may be, there 1s nothing in the statement of its constituent elements to suggest that the offence has been specifically designed for persons who have been engaged in a pattern of conduct, over a period of time, from which they have benefited to the detriment of society, except the pattern which may be discerned in a series of offences all of which involve an attempt to defraud the Commonwealth or "a body or authority constituted by or under a law of the Commonwealth or of a Territory" and from one or more of which the offender derives substantial benefit. The Commonwealth may be defrauded in ways that involve no economic prejudice, nor any intention to

cause economic prejudice to the Commonwealth : see Welham v.

-17- D.P.P. [£1961] A.C. 103 and Reg. v. Scott [1975] A.C. 819 at 839, 841. A literal construction of sub-section 83(2) does not in our opinion disclose a legislative intention that the three or more public fraud offences must manifest a pattern in the conduct comprehended by those offences. When regard is had to the context which the Proceeds of Crime Act 1987 as a whole supplies it may be permissible to construe' the references to offences specified in paragraph 83(4)(a) as limited to those offences under ss. 29D and 86A of the Crimes Act in which there is sought either economic detriment to the Commonwealth or the public authority or economic advantage to those in whose interest the offence is committed. But we are unable to discern a legislative intention that there be any other connection between the offences which satisfy the requirement expressed in paragraph 83(2)(a). The requirement of any pattern or nexus beyond the common characteristic of an attempt to defraud involving economic advantage to the offender or to another whom he seeks to benefit or economic detriment to the entity defrauded would inhibit achievement of that which the terms of s.83 suggest to us is the legislative intention in enacting it : to render liable to condign punishment those who repeatedly seek to gain economic advantage by public fraud offences and who in fact succeed in deriving substantial benefit therefrom. The supposed case was put by counsel for Mr. Barker of a doctor, charged with defrauding the Commonwealth by concealing the greater part of his very large income from the Australian Taxation Office, who

1s found during the investigation of that offence to have also

18 - defrauded the Commonwealth years before by obtaining on several occasions a small sum of money from the Health Insurance Commission in respect of false Medicare claims. It was submitted that the substantial benefit derived from the income tax offence was obtained by conduct totally unrelated to the conduct constituting the earlier offences. But in our opinion the repetition of conduct designed to gain economic advantage by fraud is what s.83 can be seen as directed to make a distinct offence if out of those repeated attempts a substantial benefit has been derived. We do not think ourselves justified in limiting the application of the section by reason of the use of the label "organised". Undefined concepts of "pattern" and "nexus " are in our opinion unsuitable constituent elements of a criminal offence. While it 1S sometimes found necessary to commit a normative judgment to the tribunal of fact, as for example in negligent manslaughter, the criminal law is in our opinion best served by excluding, so far as possible, from the definition of a criminal offence circumstances incapable of precise description. The vague connotations with which vernacular usage has invested expressions such as "organised crime" and "organised fraud" ought not to anfluence the construction of paragraph 83(2) to the extent suggested by counsel, in our opinion. The use of the word "organised" 1s in our opinion justified, as a label, by the requirements of repetition and success, to the extent of "Substantial benefit". No more is required, as we think. Nor do we consider that it is a

requirement of paragraph 83(2)(b) that success, to the extent

19 - of "substantial benefit", attend the commission of each set of "acts or omissions" that constitute one of the required public fraud offences. We are, as we think, compelled to understand paragraph 83(2)(a) as if it had read : "he or she engages ...

un acts or omissions that in the aggregate constitute 3 or

more public fraud offences", in order to avoid an absurd conclusion. But we find no such a compulsion to understand paragraph 83(2)(b) as if it had read : "he or she engages ...

in acts or omissions that constitute three or more public {fraud offences from the commission of each of which offences

It was a ground of Mr. Barker's appeal that the evidence could not sustain a verdict of guilty on count 1. it was submitted that, because the acts alleged to have constituted the offence charged had all been committed before amended income tax assessments had brought into existence debts due by Mr. and Mrs. Chaplin and companies owned by them, no detriment had been caused to the Commonwealth. The Commonwealth was said to have had no "interest capable of being asserted" in the assets of Mr. and Mrs. Chaplin until 18 June 1989. The debts came into existence on 18 June 1989. If 1t be assumed - without expressing an opinion - that, as counsel for Mr. Barker submitted, the evidence did not disclose any act by Mr. Barker committed on or after that day and having a tendency to deceive the Commonwealth into misapprehending "the true circumstances" of the agreement and

of the payment specified in count 1 and by reason of that

20 - misapprehension to act or omit to act to ats detriment, yet there was evidence that after that date others specified in count 1 as parties to the offence charged did so act. And there was evidence to support an inferred finding that what Mr. Barker did in advising and implementing the scheme before 18 June 1989 he did in the expectation that the debts would soon become due and that acts of the kind in fact done by those others would be done after the debts had become due. Upon those findings a verdict of guilty on count 1 against Mr. Barker was not precluded by his inaction on and after 18 June

1989 : see fripodi_v. The Queen (1961) 104 C.L.R. 1. In those

circumstances it 1s unnecessary to examine the validity of the submission that the offence would not have been committed 1f no constituent element of the offence charged had occurred on or after 18 June 1989 except the Commonwealth's action, or omission to act, to its detriment. (Cf. Vereker v. Rodda

It was submitted on behalf of Mr. Barker that, because the money paid purportedly in performance of the agreement specified in count 1 had been lent to Mr. and Mrs. Chaplin by Style Investments Pty. Ltd., an amount recovered by the Chaplins from Mr. Hillsdon in respect of that payment would not be available in their hands to satisfy their income tax liabilities because any such an amount would be repayable by them to Style Investments Pty. Ltd. These submissions were said to support the conclusion that no defrauding of the

Commonwealth within the ambit of count 1 had, or could have,

It was common ground that Mr. and Mrs. Chaplin were the only shareholders of Style Investments Pty. Ltd. and that Style Investments Pty. Ltd. had at material times no significant liabilities, except perhaps income tax liabilities. In those circumstances the assets of Style Investments Pty. Ltd., including the money and later the indebtedness of the Chaplins in an equivalent amount, were available to satisfy the income tax liabilities of Mr. and

In developing the argument with which we have just dealt counsel for Mr. Barker directed the court's attention to evidence, given under cross-examination, by officers of the Australian Taxation office which was said to support the submission. Some of this evidence included the opinions of the witness on matters of Australian municipal law relevant to the issues being tried. It may sometimes be convenient to permit a jury or other tribunal of fact to be informed about a relevant matter of law through the mouth of a witness. But that 1s permissible only 1f it is obvious beyond all doubt to the judge and to the legal representatives of all parties that the law is as the witness states it. Here witnesses were led into making statements, the correctness of which depended on the correctness of the witness's understanding of the law, which were incorrect and misleading. That should not have

While these appeals were be1ng heard it was realised that, when the jury was considering their verdicts, transcript of parts of recorded conversations which had not been admitted into evidence was probably in the jury room. One of the recorded conversations was between an investigating police officer, Sergeant Pattenden, and Mr. Barker (exhibit BQ) and the others were between Mrs. Chaplin and Mr. Barker (exhibit KK), and Mrs. Chaplin and Mrs. Harper (exhibit LL). In each instance parts of the recorded conversation were ruled inadmissible by the learned trial judge. When the recording of the conversation was played to the jury the operator of the equipment ensured that the excluded parts were not heard by the jury. The transcript of the conversation which had been prepared was in each instance tendered in evidence and copies of the transcript were made avazrlable to the jurors : one copy for a pair of jurors. The six copies made available to the jury contained none of the excluded parts of the conversation

each copy had been edited. MThese edited copies the jurors retained in their custody until the jury was finally discharged. Thereafter those edited copies were destroyed, in accordance with normal practice. When the jury retired to consider their verdicts all the actual or, as they are often called, original exhibits were taken into the jury room so that they would be available for inspection by the jury. No means was available to the jury of playing the recordings of conversations, although they had in the jury room as actual exhibits the audio tapes on which the conversations were

recorded. The learned trial judge had informed the jury that

23 - any recording they washed to hear during their deliberations would be played for them on request. The trial had concluded on 16 April 1994 and none of those concerned in the handling of the actual exhibits during the trial and their delivery to the jury when the jury retired to consider their verdicts had any occasion to recall to mind his performance of those functions until late October 1994. Questioning then of all of those persons provided no basis for supposing that any of the Original exhibits BQ, KK and LL had not been delivered to the jurors with the other original exhibits when the jury retired to consider their verdicts. Exhibits BQ, KK and LL are now all intact, unedited, and they were found to be with the other Original exhibits when those exhibits were examined during the hearing of the appeals. The evidence before this court leads us to find that exhibits BQ, KK and LL were in the jury room during the jury's deliberations on their verdicts and that each of them included the parts which had been ruled

The presence in the jury room of material relating to a subject of the jury's deliberations and not in evidence

constitutes an irregularity : 2. C. Domican (No. 3) (1990) 46

A.Cr.R. 428 at 447-448; R. v. Rinaldi (1993) 30 N.S.W.L.R. 605. Each verdict of that jury must be set aside unless the court is satisfied that the jury would have returned that same verdict if the irregularity had not occurred : Reg. v. Marsland (unreported; Supreme Court of New South Wales;

judgment 17 July 1991); R. v. Rinaldi, supra. And "(ijt is

_ 24 = for the Crown to make it clear that there is no real possibility that justice has miscarried" : Mraz v. The Queen

The farst question which the facts found raise is whether any member of the jury examined any one or more of the three original exhibits to which we have referred. If that question be answered in the affirmative, the question arises as to whether any of the jurors read any of the excluded parts. It may perhaps be thought that enquiry now of the jurors to obtain answers to those questions would not violate the principle that enquiry be not made after verdict into the deliberations which resulted in that verdict. But if an affirmative answer to both questions were obtained from one or more of the jurors, any further enquiry as to what the juror thought, or as to what he did, in relation to what he read would be likely to result in contravention of that principle. Counsel for the Crown informed the court that they had given earnest consideration to the question whether enquiry should be made of the jurors, having regard to the reasoning of the New South Wales Court of Criminal Appeal in R. v. Emett (1988) 14° N.S.W.L.R. 327 and to the authorities cited in that case, but that they had decided not to submit that such an enquiry should be undertaken. No submission was made on behalf of any of the appellants that such an enquiry should be made. We consider that in those circumstances the court should not request or require questioning of the jurors. (Cf. R. v.

After they had been deliberating for six hours they were brought into court. The transcript records the following:

"HIS HONOUR: Mr Foreman, ladies and gentlemen, you retired to consider your verdicts in this matter, according to our records, at 11.35 am. That means that six hours have elapsed since you retired. It is appropriate, therefore, to inquire and I inquire from you, Mr Foreman, for a start, as to whether you are likely to reach agreement about the various counts.

THE FOREMAN: I think that the answer to your question is, yes, your Honour. It will take some time.

HIS HONOUR: Well, that puts us into the area of, first of all, a meal break. Obviously, you

have to have a meal break. You cannot, sort of, deliberate without any break for refreshment. You probably need some sort of a

break. So what I normally do is I indicate and I should have said, of course, counsel and those involved in the case, the accused and those supporting them need some respite as well. So what I normally do is indicate that I will not take a verdict before a certain hour and my usual practice is to say 7.30. So unless you have any view to the contrary, we will send you away for a meal or whatever, I am nor sure how it is done, and I will say that I will not take any verdicts before 7.30.

Now, as to the rest of your deliberations, this has been such a long trial and you have so much to consider and three accused that I think it is appropriate for your deliberations in the absence of reaching verdicts to continue until a reasonable hour this evening say, 10 o'clock and then continue tomorrow which means that accommodation has got to be provided for you overnight. That is what I propose to do. I would not think it appropriate to, especially in view of what you have just told me, to

discharge you as a jury that cannot reach agreement until you have had a decent go at it tomorrow as well.

THE FOREMAN: I think the main delay 1s going through a vast amount of documents - - -

HIS HONOUR: It 1s a big case, Mr Foreman. It 1s a big case.

THE FOREMAN: - - - which takes a long time and some of us just want to do just that.

HIS HONOUR: Certainly. Well, all right, I will say I will not take a verdict before 7.30. You depart, Mr Foreman, ladies and gentlemen, and of course, I will not bring you into court at 7.30. You will just come back and continue your deliberations and we will be available if you happen to reach a verdict before 10 o'clock but if you do not before 10 o'clock, I will bring you back in then and say, well, I might make the same inquiry of you to decide whether we send you to a motel or not. Thank you."

Shortly before the court adjourned at about 10 p.m. the following dialogue between the foreman and the learned trial

"HIS HONOUR: Well, Mr Foreman, you obviously have not reached verdicts in all these matters.

THE FOREMAN: Quite right. HIS HONOUR: Do you think you are likely to

THE FOREMAN: We have made progress. It has been quite slow and tiring, and I think we should probably get nothing tonight and we will have to go through the remaining areas that we are looking at tomorrow.

HIS HONOUR: Yes, all raight. Well, in that case, we will retire for the evening and I suggest we all come back at 9.30 in the morning."

The deliberations of the jury continued throughout Saturday 16

April until verdicts were returned after 5.30 p.m. that day.

The foreman's reference to "a vast amount of documents" was not hyperbole. In all the circumstances we cannot be satisfied that use was not made by one or more jurors of the original exhibits during their deliberations. The copy exhibits BQ, KK and LL each had to be shared between two jurors. Use of an original exhibit, if only for ease of

Tf a discrepancy between the content of an original and a copy exhibit had been noticed by a juror, one would have expected that to have been reported by the foreman to the trial judge, or a request to have been made that the recording be played to the jury. It 1s possible that a juror read aloud an inadmissible part of an original exhibit to the other jurors, who did not seek to read that part themselves on the copies as he spoke. In those circumstances the discrepancy may not have been noticed. Or a juror may have been anfluenced by his reading of an inadmissible part of an original exhibit, but not have said to another juror anything which led to discovery of a discrepancy, nor recognised a

Exhibit LL is a transcript of a recording made of a conversation between Mrs. Chaplin and Mrs. Harper in Canberra on 8 April 1991. Mrs. Chaplin wore a device, supplied by the

Australian Federal Police, by which the conversation was

28 - transmitted to recording equipment operated by members of the Australian Federal Police. Mrs. Harper was unaware that the conversation was being recorded. In that part of the conversation which was ruled inadmissible Mrs. Chaplin, after discussing the failure of Mr. Hillsdon to acknowledge and perform what Mrs. Chaplin called "our actual agreement", as distinct from what she called "this Teckvest agreement",

replied to Mrs. Harper's observation that "it just seems like

a real con" with the words : "Yeah, don't you think that Terry knew about it in the very beginning?" Mrs. Harper replied :; "I wouldn't have a clue". A little later the following was said:

HARPER And he could do no more, he can only advise he can't demand you to do something a certain way and but I think I don't know what I can gather and what I believe since Terry does have problems and always has had.

CHAPLIN Yeah well that's what Jan said that he gamble, I mean you see [I didn't know that then.

HARPER Oh right. All I got told was I happened to mention accountants Terry BARKER once with some people and they went oh bad news and I said shit oh dear, and this is when you faxing me telling me that things weren't working out, oh gosh and I said what

do you mean and they said oh he's just bad news and that was it and that's all I heard so, I don't know perhaps he did, perhaps he did know, a friend of, as I said to you and I faxed you a friend of mine from the Tax office just going through writing off losses and she was saying that there's a couple that she, two cases where she knew the people had invested in a computer company.

Same kind of thing and they'd lost of their money because what they do is they apply for a, what did they apply for it, 1t's got a name for it, when you, when you've lost all your money and you know you've lost all your money, right you apply for some kind of a tax relief or something.

Something like that and she said look two people in different States.

No this was in England, no, no not in the ACT they had anvested in a computer company in England.

Because you see that's what I would like I'd like to if there are other people who have had dealings with Terry you know I'd be very interested in knowing.

You know, because I mean if they've had the same experience that we've had, you know, I mean maybe together we can just put a bit more pressure on Terry, you know because I mean Terry is the person who's got that contact, you know, with Vin, you know unless he's in cahoots with Vin, you see, now you see and that's what I,

that's why I've got a big well I mean it's a lot of money isn't it.

Well it 1s yes, but people can gamble that sort of money away and then where do they get it from.

Yeah, you remember that Terry went across to England

when that money was transferred he went across to England

to make sure that the money was there and then he, and then Chris went afterwards, Chris went at the end of the June, the money went at the beginning of June I think, and he went across there and

Oh yeah I didn't know he went across then I remember you saying he'd come across to sort things out, and he'd met ..

Oh that was in, that was later, that was in December when yeah, and he was flying, yeah, no but, when the whole transaction went,

went through right he went, he went over and his excuse was I'll go and check and make sure the monies arrived, a large sum of money and you wanta be sure that it's there and it arrived okay and then when Chris actually got there, you know, he was rushing off to go to Hong Kong or somewhere.

That's right, that's right, yes that's right, that's right, because

He was rushing off to go to Hong Kong and, and, and so what I think, I mean 1f he was part of this, this con then he was arranging with Vin at that time what to do with those funds, right and maybe set up his own bank

account or whatever or he already had his own bank, because I, I don't believe we're the first. I think there are other people that have been involved before right and I think he's already had.

HARPER The comment that I've got about Terry BARKER when I mentioned his name ina group of people I get the feeling that he's lost people money before.

HARPER People have lost money with Terry, he's a bad name as far as accounting goes and be crooked investments or something. Surely I mean to say it seems incredible that all the money, you know does it really even if they say look we'll give you half now we sort of fob you off with the rest but

CHAPLIN Well I think, I think also that Terry would've said something like you know, oh well you know you play with Ellen because she's a bit of a softee or you know, and you talk with Ellen because I remember that meeting that

I had with Vin he insisted that Chris not go to it."

"Vin" is Mr. Hillsdon, "Terry" 1s Mr. Barker, "Robert" is Mr.

Campbell, "Ellen" is Mrs. Chaplin and "Chris" is Mr. Chaplin.

Uncontradicted evidence had been adduced of Mr. Barker's good character. The suggestions in the conversation I have quoted that he had been "a terrible gambler" and that he had been connected with other instances of dealings with "a computer company" in England which resulted in heavy financial

loss by Australian taxpayers and that "he's a bad name as far

32 - as accounting goes and be crooked investments or something" and that he might himself have retained some of the money sent to Hillsdon, in collusion with Hillsdon, are highly prejudicial. Counsel for the Crown relied on an observation by Kirby A.C.J., in which Campbell and Studdert JJ. agreed,

that "the extracurial information must be on a 'vital' or at

least important issue before discharge is required" (f.C. Domican (No. 3) 46 A.Cr.R. 428 at 448). It was submitted

that, because the Crown case was that Mr. Hillisdon had retained the money which the Chaplins had put under his control and that Mr. Barker had not expected or desired that outcome, there was no 21ssue concerning Mr. Barker's involvement in the failure of the Chaplins to recover their money. It was further submitted that, because in documents which were in evidence Mrs. Chaplin had suggested that Mr. Barker was co-operating with Mr. Hilisdon to prevent the return of the money to the Chaplins, the suggestions to that effect in exhibit LL would not have significantly influenced the jury. In the same way it was said that Mr. Barker's gambling proclivities and his involvement in other transactions in which losses had been sustained did not bear Significantly on the jury's resolution of the issues joined

, These submissions cannot be accepted. Mr. Barker's good character, particularly in relation to his professional activities, was likely to be of substantial weight in the

jury's deliberations. To have that character impugned, in

33 - relation only to the transactions the subjects of the charges he faced, by Mrs. Chaplin, a confessed criminal with an obvious motive to impugn his character, was a relatively minor disadvantage. To have his character impugned by apparently disinterested strangers, according to the statements made by another accused to Mrs. Chaplin, was a very grave disadvantage, and one likely to have an influence on the jury's resolution of each issue joined between him and the Crown. In respect of each verdict of guilty against Mr. Barker we cannot be satisfied that the jury would have returned the same verdict if the conversation we have quoted had not been brought to the jury's attention. And we cannot be satisfied that the conversation was not brought to their attention. Accordingly we are of the opinion that those

Exhibit BQ is a transcript of a recording of questioning of Mr. Barker by an investigating police officer. The parts ruled inadmissible - and therefore edited out of the jurors' copies of the transcript - contain questions which might be thought tendentious and connotative of the questioner's disbelief of some of Mr. Barker's answers. But an the context of the whole of the evidence those excluded parts could not, we are satisfied, have affected a juror's

No party suggested, nor could it be thought, that a

juror's verdict might have been affected by his reading the

In the case of Mr. Campbell and Mrs. Harper we are Satisfied that the same verdict against each of them would have been returned if the jurors had seen none of the excluded Material. Accordingly there was in our opinion no miscarriage of justice in relation to either verdict by reason of the presence of the excluded material in the jury room. It was submitted that, Mrs. Harper and Mr. Campbell being man and wife, the excluded part of exhibit LL suggested that they both knew that Mr. Barker's reputation was flawed when Mr. Campbell was co-operating with Mr. Barker in the preparation of the agreement with Teckvest. But the statements of Mrs. Harper in the excluded part of the exhibit indicate that she first heard remarks denigratory of Mr. Barker's reputation after the

With each of the appellants separately Mrs. Chaplin had a conversation which was recorded without the knowledge or consent of the appellant. At the time of each conversation the appellant had not been charged with any offence and had not been warned that he or she was under no oblagation to answer questions relating to any of the transactions concerning which the counts in the indictment were subsequently laid. During each conversation Mrs. Chaplin sought to elicit from the appellant statements tending to show that appellant's complicity in one or more of the offences

subsequently charged against that appellant. On each occasion

35 - Mrs. Chaplin had concealed in her clothing a device, supplied by members of the Australian Federal Police, which transmitted signals to nearby equipment by which the conversation was recorded. The equipment was operated by members of the Australian Federal Police. The recording of each conversation was admitted into evidence and was played to the jury. A transcript of each recording was admitted into evidence. At the time of each recording the following provisions of the

"12F. (1) It is unlawful for an official to use, for the purposes of general offence inquiries that are being made by members, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless:

(a) the official is the speaker of the words or 1S a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or

(b) the official listens to or records the words with the consent, express or implied, of a person who is permitted by paragraph (a) to listen to or record the words; or

in accordance with a warrant under section 12G and the provisions of this Division.

(2) It is unlawful for a person acting by arrangement with an official to use, for the purposes of general offence inquiries that are being made by members, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless the first-mentioned person is the speaker of the words or 1s a person, or is included in a class or group of persons, by whom the speaker

of the words intends, or should reasonably expect, the words to be heard.

(3) It 1s the duty of the Commissioner to take reasonable steps to ensure' that subsections (1) and (2) are not contravened by

(a) an official does not act unlawfully merely because the official uses a listening device as mentioned in subsection (1) un circumstances to which paragraph (1) (a), (b) or (c) as

(b) a person acting by arrangement with an official does not act unlawfully merely because the person uses a _ listening device as mentioned in subsection (2) in circumstances in which the use of the

device is not declared to be unlawful by that subsection."

Section 12F was in Division 2 of Part II of the Act. The word "official" was defined in s.12B to comprehend, an that Division, a member of the Australian Federal Police. The expression "general offence" was defined in s.12B to mean, in

"(a) an offence against a law of the Commonwealth that is not a customs narcotics offence; or

(b) an offence against a law of the Australian Capital Territory."

The expression "general offence enquiries" was defined in

that has been committed or 1S reasonably suspected of having been committed; or

(b) if there are circumstances reasonably giving rise to the suspicion that a general offence is likely to be committed

aunquiries in relation to the likely commission of the offence."

The expression "listening device" was defined in s.12B to

"any instrument, device or equipment capable of being used, whether alone or in conjunction with any other instrument, device or equipment, to record or listen to spoken words."

The expression "class 1 general offence" and the expression "class 2 general offence" were given by s.12B meanings, in the Division, within which none of the offences charged in the andictment fell. Section 12G empowered certain judges to authorise by warrant members of the Australian Federal Police and certain staff members of the Australian Federal Police to use a listening device in relation to a particular person or particular premises if satisfied of specified circumstances relating to a class 1 general offence or to a class 2 general offence suspected of having been committed, or of being likely

The use by members of the Australian Federal Police of the equipment which recorded the words spoken by each appellant was in our opinion unlawful, by reason of the

operation of sub-section 12F(1). The official using the

38 - recording equipment to which the device used by Mrs. Chaplin was transmitting was using, for the purposes of general offence inquiries that were then being made by members of the Australian Federal Police, equipment capable of being used, in conjunction with another device, to record spoken words for the purpose of recording words while they were being spoken by the appellant. The official was neither the speaker of the words nor a person by whom the appellant intended, or should reasonably have expected, the words to be heard, nor was the official included in a class or group of persons the subject of any such an intention or expectation. And the official did not record the words with the consent of a person who was permitted by paragraph 12F(1)(a) to listen to or record the words. The official had Mrs. Chaplin's consent. But she was not an official. Paragraph 12F(1)(a) operates only to permit an official to listen to or record words. Paragraph 12F(1)(c) did not apply : none of the general offences the subject of inquiry was a class 1 general offence or a class 2 general

Sub-section 12F(2) did not in our opinion make unlawful Mrs. Chaplin's use of the device she concealed about her on each occasion. On each occasion she was acting by arrangement with an official to use, for the purpose of general offence inquiries that were being made by members of the Australian Federal Police, a device capable of being used, an conjunction with other equipment, to record spoken words,

for the purpose of recording words while they were being

39 - spoken by an appellant, but she was a person by whom that appellant intended those words to be heard, by direct aural

It was a ground of the appeal by each appellant that evidence of the recording of each conversation should have been excluded, by exercise of the learned trial judge's discretionary power to exclude relevant evidence. Not only had the recording contravened s.12F(1), but also other improprieties had attended the recording of the conversations, 1t was submitted by counsel for each appellant. In each case Mrs. Chaplin had entered the premises on which the recording was made as a trespasser, it was submitted. In the case of Mr. Barker and in the case of Mr. Campbell the premises entered by Mrs. Chaplin were those in which each appellant respectively carried on his professional work. As a client of each man she had implied permission to enter the premises for the purpose of carrying on that relationship. But it was submitted that because she entered for a purpose wholly alien to the limited permission which had been given her, she stood in no better position than a person who entered with no

We do not accept the submission. The authority Mrs. Chaplin had to enter was limited to entry for the purpose of Carrying on the professional relationship between herself and her adviser. And that 1s in our opinion what she did while

she was on the premises. She discussed with each adviser

40 - aspects of transactions in relation to which advice and information by the adviser had previously been sought, and was sought again during the conversation which she was causing to be recorded. With Mr. Campbell she discussed also the commercial transaction which is the subject of the fifth count and to which Mr. Campbell was a party. Her permission to enter the premises where he worked no doubt extended to entry for the purpose of dascussing the performance of that transaction. The circumstances that she was merely pretending an interest in the adviser's advice and that she had the untention when she entered of recording a conversation which she would so guide that her interlocutor would, as she hoped, make admissions of his criminal conduct, do not in our opinion make her entry trespassory. "An entry by a person which is within the scope of a permission given by the person in lawful possession iS not a trespass. If a particular entry by a person who has a valid permission to enter is not covered by the permission, 1t must be that the permission is relevantly lamited at least to the extent necessary to exclude that entry

+++. Strang v. Russel (1905) 25 N.Z.L.R. 916 was an action for

trespass to land. The defendant claimed that he had a legal right to enter upon the plaintiff's lagoon and that he had entered upon it in pursuance of that right. He also claimed that he had the plaintiff's implied permission to enter upon the lagoon. It was held that his entry, not in pursuance of any such implied permission but in pursuance of his own asserted legal right and with the intention of contesting the

plaintiff's title, was trespassory. The case would appear to

41 - support the general proposition that, notwithstanding that a person has the general permission of the occupier to enter premises, he will enter as a trespasser if he intends to enter not 2n pursuance of that permission but in pursuance of some unfounded claim of andependent right. In our view, that general proposition is not supported by authority or principle and is not good law. We agree with Professor Street (Law of

Torts, 6th ed. (1976) p. 75) that Strang is inconsistent with

the decision in Byrne v. Kinematrograph Renters Society Ltd. [1958] 1 W.L.R. 762 - where it was held that entry by a

licensee for a purpose alien to the purpose contemplated by the licensor did not render the entry trespassory - and was wrongly decided. Unless the consent to enter is limited by reference to purpose, an entry which is otherwise lawful does not become trespassory because it is effected for a purpose of which the person giving the consent is ignorant and of which he would not have approved" : Barker _v. The Queen (1983) 153 C.L.R. 338 at 360, 358-359 (per Brennan and Deane JJ.) In that case the High Court was concerned to interpret a criminal statute which interdicted entering a building "as a trespasser". Consideration was given to the common law concept of trespass in elucidation of the phrase "as a trespasser". Mason J. observed (153 C.L.R. at 347) : "Another possible area of operation of [that phrase] is to exclude those who enter premises with intent to steal but also with another intention within the scope of their licénce to enter.

A person cannot be at the same time a trespasser and a non-

trespasser in respect of the same land (Healing (Sales) Pty.

42 - Ltd. v. Inglis Elextrix Pty. Ltd. (1968) 121 C.L.R., at p. 606, per Kitto J.: see also, per Barwick C.J. and Menzies J. (1968) 121 C.L.R., at pp. 598-599). If a person enters premises for a purpose which 1s within the scope of his authority his entry is authorized; it is not made unlawful because he enters with another and alien purpose in mind. The performance of acts with a view to the attainment of that alien purpose does not relate back to his entry so as to endow 1t with a trespassory character. It is hardly to the point to say that the licensor would not have given that licence, had he known the alien intention of the licensee. It is the effect of the licence actually given that is decisive". In Byrne v. Kinematograph Renters Society Ltd., supra investigators entered a cinema theatre as persons paying for the right to view a film, but their real purpose was to count the number of patrons present in the theatre, with a view to discovering understatement of that number by the exhibitor of the film, whose obligation of payment to the distributor of the film was proportioned to the number of persons who viewed

the film. Harman J. observed ([1958] 1 W.L.R. at 776):

"It was argued that the twenty-three visits of Pinder or Lewis and their assistants to the County Cinema which I have described were all acts of trespass because they went into the cinema not for the purpose for which alone the public was invited to enter but for a different purpose, namely, to obtain evidence against the plaintiff. I cannot think there is anything in this point. The cinema was open to the public who were invited to go in and take tickets, and this 1s what Pinder and Lewis and their assistants did. Their motives in taking the tickets are, I think, immaterial from this point of view. They did nothing they were not

43 - invited to do, and in my judgment it cannot be said that because they may not have wished to see the performance but were merely interested aun the numbers on the tackets or in counting

the number of patrons they committed acts of trespass".

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (398 paragraphs)

Legislation Cited (5)

Cases Cited (1)

Cited By (2)