Barker v The Queen - [1996] FCA 809 - FCA 1996 case summary — Zoe

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Barker v The Queen

[1996] FCA 809

Federal Court of Australia|1996-09-11|Before: Madgwick JJ

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Source facts

Court

Federal Court of Australia

Decision date

1996-09-11

Before

Madgwick JJ

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

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Background 1 Mr Campbell's defence 6 Mr Campbell's Grounds of Appeal 6 The fifth and sixth grounds of appeal - Unsafe and Unsatisfactory verdicts - Convictions against the weight of the evidence 7 Count 1 - The Teckvest agreements 9 Count 2 - The pink Argyle diamonds transaction 26 Count 4 - The conspiracy charge 31 Count 3 - The September meeting 33 The amount of the Chaplins' tax liability 36 Teckvest's retention of the programs 38 Dispatch of documents 39 First Ground of Appeal - Documentary Evidence 41 Second Ground of Appeal - The jury-room incident 52 Third Ground of Appeal - The Restaurant Incident 58 Conclusion Mr Barker's appeal against sentence 70

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REASONS FOR JUDGMENT The Court Background Appeals against conviction by Robert George Campbell and against sentence by Terence Francis Barker. On 16 October 1995, Robert George Campbell and Terence Francis Barker were arraigned on the one indictment. The charges that had been laid against them arose out of the manner in which they had, during 1989, conducted themselves in their capacity as professional advisers to Ellen Elizabeth Chaplin and her husband Christopher John Chaplin. Mr Campbell had acted as their solicitor and Mr Barker, a chartered accountant, had given them accounting and taxation advice. Mr and Mrs Chaplin, who had for several years up to 1989 conducted a jewellery business in Canberra, had made a practice of lodging false income tax returns. They consulted Mr Barker in December 1988 when they learned that the Australian Taxation Office ("the ATO") had commenced an investigation into their affairs. The Crown case was that Mr Barker formulated a plan whereby the Chaplins would enter into agreements ("the Teckvest Agreements") with a United Kingdom company, Teckvest Pty Ltd ("Teckvest"). Under two agreements they would acquire, at a total cost of $3.5m, computer programs for use in foreign currency trading. The

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Messrs Campbell and Barker were first tried, together with Mr Campbell's wife, Janice Harper, in February 1994. There was a total of nine charges in the indictment; all three pleaded not guilty to all charges. Mr Campbell faced, jointly with Mr Barker, two charges (count 1 and 2) of defrauding the Commonwealth; those charges related to or arose out of the Teckvest agreements and another transaction which, for identification, can be referred to as "the pink Argyle diamonds transaction". Mr Barker was convicted on both counts but the jury failed to agree on verdicts with respect to Mr Campbell. Mr Campbell separately faced a third charge of defrauding the Commonwealth. That charge related to his alleged involvement in misrepresenting to officers of the ATO at a meeting with them on 4 September 1989 the financial ability of the Chaplins to pay their assessed tax and penalties ("the September meeting"). But once again, the jury could not agree. In the fourth count Messrs Campbell and Barker were jointly charged with perverting the course of public justice. This charge arose as a result of their alleged involvement in the presentation or use of a false affidavit in the name of Mrs Chaplin in proceedings in the Supreme Court of the Australian Capital Territory ("the conspiracy charge"). Mr Barker was convicted but the jury could not agree with respect to Mr Campbell. Mr Campbell and his wife were the subjects of the fifth count. It concerned their sham purchase of the Chaplin's business, "Precious Jewellers". Both were convicted and their subsequent appeals were dismissed. Counts six, seven and eight referred to Mr Barker alone. Counts six and seven dealt with the contents of his income tax returns for the 1990 and 1989 financial years; it was alleged that each was false in a material particular. The jury failed to agree on count six but a conviction was recorded on count seven. Counts 8 and 9 were charges of organised fraud against Mr Barker and Mr Campbell respectively. Mr Barker was convicted on this charge but the jury were unable to reach a verdict in respect of Mr Campbell. Mr Barker successfully appealed against all convictions when it was ascertained that copies of some records of interviews (that had been marked for identification during the course of the trial but had not been received as evidence in the trial) had been made available to the jury during the course of their deliberations: Barker v The Queen (1994) 54 FCR 451. A new trial was ordered and Mr Barker was duly re-arraigned. Mr Campbell was also re-arraigned in respect of the four charges where the jury had been unable to reach verdicts. In presenting the second indictment with five counts (as compared with the previous nine) the Crown chose not to charge Mr Barker and Mr Campbell with the offence of organised fraud (the former counts eight and nine). The Crown also decided not to charge Mr Barker with respect to his 1990 income tax return (the former count six). The remaining count that was not reproduced in the new indictment was that on which convictions had earlier been recorded against Mr Campbell and Ms Harper. On the retrial the jury returned their verdicts on 6 December 1995. Messrs Campbell and Barker were convicted on counts one and two relating to the Teckvest agreements and the pink Argyle diamonds. Mr Campbell was convicted on count three and both men were convicted on count four. Those counts dealt respectively with the September meeting and the conspiracy charge. The fifth and remaining count related to the contents of Mr Barker's 1989 income tax return; on this count the jury could not agree. Both Mr Campbell and Mr Barker were sentenced on 26 February 1996. Mr Campbell was sentenced to three years imprisonment on each of the first three counts and four years imprisonment on the conspiracy charge. Mr Barker was sentenced to four years imprisonment on each of the first two counts and three years imprisonment on the conspiracy charge. All sentences were to be served concurrently as from the date of sentencing and a non-parole period of eighteen months was fixed from that day. The learned sentencing judge ordered that Mr Barker serve his term of imprisonment in a minimum security gaol without hard labour. In determining the length of Mr Barker's

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non-parole period, his Honour had regard to the fact that Mr Barker had served somewhat in excess of five months in prison as a result of his convictions on his first trial. Mr Campbell has appealed against his convictions but not against sentence. Mr Barker has not appealed against his convictions but has appealed against sentence. The appeals were heard consecutively but it is convenient to deal with both matters in the one set of reasons commencing with Mr Campbell's appeal against convictions. Mr Campbell's defence Mr Campbell's defence was one of lack of knowledge of any criminal conduct on the part of the Chaplins and Mr Barker. His position can be simply stated: he received his clients' instructions and acted in accordance with them. Those instructions were to the effect that the Teckvest agreements and the pink Argyle diamonds were genuine commercial transactions. Hence his involvement in the presentation or use of the affidavit in the Supreme Court proceedings (the conspiracy charge) and his statements to the ATO officers at the meeting of 4 September 1989 were made innocently and without knowledge of any falsity. Mr Campbell's Grounds of Appeal There were six grounds of appeal in Mr Campbell's Notice of Appeal. The first concerned certain documents; it complained about the evidence that dealt with the date on which and location from which those documents were seized by the police. The second related to an incident that occurred in the juryroom during the course of the trial which, claimed the appellant, should have caused the trial judge to discharge the jury and order a mistrial. The third ground alleged bias and prejudice on the part of the trial judge. The fourth ground was abandoned. The fifth and sixth grounds can be dealt with together. They alleged that the verdicts were against the evidence and the weight of the evidence and that they were unsafe and unsatisfactory. Because of the need to set out the material facts in greater detail, it is convenient to deal first with these last mentioned grounds. The fifth and sixth grounds of appeal - Unsafe and unsatisfactory verdicts - Convictions against the weight of the evidence - The most recent High Court authority on this subject is M v The Queen (1995) 69 ALJR 83. It shows that these two grounds of appeal are, in effect, alternative forms of the same complaint. In their majority judgment Mason CJ, Deane, Dawson and Toohey JJ commented that:- "(w)here 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. Other terms may be used such as "unjust or unsafe", or "dangerous or unsafe". (p85) The principles upon which this Court must act in considering these grounds of appeal are clearly set out in the joint majority judgment in M v The Queen (supra). Their Honours observed that in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced:- "It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above." (p86) In order to assess the four verdicts it is necessary to analyse the evidence that was available for the jury's consideration. This is best done by taking each verdict in turn. Count 1 - The Teckvest agreements The case for the Crown with respect to this count was that Mr Campbell knew and understood the falsity of the Teckvest agreements and helped in the preparation of the sham documentation. Mrs Chaplin had spoken to Mr Barker of her fear that she and her husband would lose substantial assets and possibly face incarceration as a result of the income tax investigation the Chaplins faced. She gave evidence that some time in February 1989 Mr Barker told her of his friend in the United Kingdom, Vincent Hillsdon. Mr Barker's plan was to send an amount of money out of the country to Mr Hillsdon so that he and the Chaplins could test whether such a remittance would evoke any reaction from the ATO. It was an essential part of this plan that Mr Hillsdon would, for a fee, return the money to the Chaplins in due course. These were said to be the circumstances in which $33,000.00 was remitted to the United Kingdom on 20 February 1989 on behalf of the Chaplins. The events of 5 May 1989 were critical to the case for the Crown as it was said to be the commencement of Mr Campbell's criminal involvement. Until then, the Crown accepted that his conduct had been that of a legal adviser acting legitimately in the interests of his clients. By May the Chaplins had amassed substantial amounts of cash as a result of their sales of various parcels of real estate. It was on 5 May that Mr Barker put the plan for the Teckvest agreements to Mrs Chaplin and obtained her approval in principle subject to her seeking Mr Campbell's advice. The matter was becoming urgent as the ATO was continuing its investigation and Mrs Chaplin was anxious to obtain Mr Campbell's advice. On the same day she attended at Mr Campbell's office and, according to her evidence, Mr Barker explained the details of the Teckvest agreements to Mr Campbell in her presence. Her evidence in chief on the disclosure of the details of the scheme to Mr Campbell was:- "That Terry [Barker] said that he had a friend, the name of Vin Hillsdon, who's been a long time friend, who has a computer that operates currency trading ... and that it was possible for us to come up with a contract for the Chaplins to buy this computer program, this currency trading program, and they could -the money would be sent to Hillsdon and for a fee he would then return that money to us when we went to England and that the contract would be - it would look a legitimate commercial contract." Mrs Chaplin continued in her evidence with a summary of the matters that were discussed with Mr Campbell in his office on that occasion. For example, she claimed that Mr Barker and Mr Campbell agreed that it would be necessary to create "historic records". When asked to explain what she meant, she replied:- "Because it was necessary to show some history with this negotiations, I mean, the fact that we had agreed to make the contract on that day, it was necessary to have negotiations before that date, leading up to that date, so files were made-or it was agreed that files should be made."

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Detailed evidence was then led through Mrs Chaplin about the file of papers and notes that was allegedly compiled. These records went back as far as 19 September 1988 presumably to give an air of authenticity and commerciality to the transaction. There was, in addition, evidence that pointed to Mr Campbell having prepared false file notes for inclusion in his office papers. For example, it was common ground that Mr Barker accompanied Mrs Chaplin on 5 May 1989 when she called on Mr Campbell at his office and first instructed him with respect to the Teckvest agreements. Yet there was a file note of that date which referred to the conference but made no mention of Mr Barker being present and a second file note of the same date referring to a phone conversation between Mr Campbell in which he told Mr Barker of the conference and Mrs Chaplin's instructions as if Mr Barker had not been present. This note read in part:- "Attend on Mr Barker on telephone advising him of Ellen Chaplin's instructions. He was concerned about the possible appearance of divestment of assets... We informed him that Ellen had assured us that that was not the case and it was a legitimate business transaction..." According to the Crown case Mr Campbell suffered a lapse of memory about Mr Barker's presence at the conference when, at some later date, he concocted these false entries. It is a legitimate question to ask why Mr Campbell would have had a need to ring Mr Barker with this information if, as was the fact, Mr Barker had been present when Mrs Chaplin gave her instructions to Mr Campbell. In addition to the exercise of allegedly preparing a false trail of documents to support a history of negotiations, the Crown alleged that Mr Campbell, also on 5 May, commenced preparing agreements relating to the sale and purchase of the computer programs. An amount of $500,000.00 was telegraphically transferred to Mr Hillsdon as part of the overall scheme. This payment was required as a deposit pursuant to the first of the agreements that Mr Campbell was preparing. Later, on 19 May, Mr Campbell sent a further $210,000.00 out of his firm's trust account to Mr Hillsdon. It is, of course, patently clear that the evidence of Mrs Chaplin was central to the Crown case. She was trenchantly attacked by the defence. It was put to her, for example, that she was spurred on to give evidence against Mr Campbell because he and his wife had not paid her all the moneys that they owed on the purchase of the jewellery business. She admitted that she had not received all her money but denied that she was motivated out of spite. There were areas in her evidence where, so it was claimed, her memory was deficient. She was tested about the vital meeting with Mr Campbell at his office on 5 May 1989 when, on the Crown case, Mr Barker laid out the details of the Teckvest agreements. Mrs Chaplin said that she did not remember the exact details of the conversation, only "the gist" of it. This, so it was said, made her evidence unreliable. There is no doubt that occasions arise "when a jury proceeds to a conviction when the Crown case rests on oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree": Chidiac v The Queen (1990-1991) 171 CLR 432 at 444 per Mason CJ. It was in Chidiac's Case (supra) where members of the High Court said that an appellate court will not discharge its responsibility by finding that there was evidence sufficient to entitle the jury to convict, because a verdict may be unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted: see Mason CJ at 445 and McHugh J at 461. But the Crown case was not limited to the evidence of Mrs Chaplin alone; there was other evidence mostly in the form of various documents, from which corroborative support could be obtained. In addition, there were events, such as the preparation by Mr Campbell of the Teckvest agreements. Taken alone, that exercise contained no sinister overtones. But, claimed the Crown, it took on a different complexion when assessed within the whole framework of the Crown case. The Crown queried how a Canberra solicitor, with no knowledge of the base details of the computer programs, would prepare contracts involving $3.5m without detailed consultation with the vendor and the vendor's legal advisers. In such circumstances might not one have expected the vendor to have submitted a draft contract to the purchasers for their consideration and that of their advisers? The Crown also questioned whether it was normal business practice to remit a deposit of $500,000.00 before the contracts were signed. The Crown relied heavily upon a letter from Mrs Chaplin to Mr Campbell dated 18 August 1989. It amounted, according to the Crown, to confirmation that Mr Campbell knew of an arrangement whereby the Chaplins were expecting substantial sums of money to be available to them in the United Kingdom. Although this letter did not mention Teckvest or Hillsdon by name, other correspondence confirms that it could only be referring to them. At that stage, Mrs Chaplin was still in Australia but her husband, Chris, was then in the United Kingdom. The first section of that letter read as follows:- "Chris phoned this morning. He says that it appears that his funds are still not in the account he was expecting it to be in. He is furious and says that he has to make payment for something and has no funds to do so. As well as the fact that he still has not got access to the funds he expected to. What I am unclear about is where is the balance of the monies after approximately $500,000 - has been taken out to convert to US400,000 - to trade with." The reference to "trade" was acknowledged by the Crown as a reference to the fact that as part of the sham, and in order to cloak it with commercial reality, Teckvest or Mr Hillsdon would carry out some currency trading on behalf of the Chaplins. This therefore explained the reference to the amount of $500,000.00. In fact clause 7 of each of the contracts for sale that comprised the Teckvest agreements authorised "Teckvest Limited to deposit the equivalent of AUS $250,000 into a trading account "and" to apply these funds to currency trading transactions" using the computer programs. These most unusual clauses do not stand up to scrutiny. Each contract was expressed to be a contract for the sale and purchase of computer programs. Each contract stipulated a price and a method for the payment of that price. Neither contract called upon the purchasers to place additional funds in the hands of the vendor for the purpose of trading. Rather each contract, read literally, required the vendor to apply $250,000.00 of its sale price to a trading account for the benefit of the purchaser. At best these are examples of very inadequate drafting; at the worst they are evidence of a false transaction in which documents were prepared with reckless disregard for the truth. Mr Campbell acknowledged in cross-examination that he had received Mrs Chaplin's letter of 18 August 1989. His evidence about its significance was most unsatisfactory:- "Well, you must have been beside yourself, Mr Campbell, when you read that?...Why would I be beside myself? Well, things were obviously going wrong, weren't they?...Mr Chaplin obviously wanted to get hold of some funds, yes. He had a large bill apparently. And no-one knew where the money was, it would appear?...I don't think that's correct.

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One of the most important pieces of evidence on the Crown case was a two page memorandum in Mr Barker's handwriting.(pp178-179) It set out particulars of the moneys that had been remitted to Mr Hillsdon on the Chaplins' behalf and the dates of those remittances. It then listed all "costs" "fees" and "commissions" and concluded with an entry:- "Balance to be accounted for $2,948,613." As the Crown submitted, if in truth, the Chaplins were making a commercial acquisition of computer programs for a sum of $3.5m (of which, according to this memorandum, $3,359,000.00 had already been remitted) there would be no "balance to be accounted for". This memorandum constituted tangible documentary evidence supporting Mrs Chaplin's evidence that the Teckvest agreements were a sham. Although he denied any contemporaneous knowledge of this memorandum, there was evidence that it had been sent by facsimile transmission to Mr Campbell's office. There was also evidence that a copy of the transmission had been seized by the police when they executed a search warrant at Mr Campbell's office premises. Mr Campbell was cross-examined at length about Mr Barker's memorandum. Although the passage is lengthy, it goes to the heart of the matter and warrants reproduction:- "But you surely looked at it, Mr Campbell?...No I did not. Well, it came to your office?...Yes, it apparently did, yes. It's got your client's name on the top of it, Mr and Mrs Chaplin?...That's correct. And it's in the handwriting of Mr Barker, who was the accountant in the matter?...Yes, it appears to be his writing. And it's a summary of remittances to the United Kingdom?...Well, that's what you're telling me, and that's something I've heard in these proceedings, but this document came to our office, and it's on the file, and as I understand it, and I'm only giving an opinion so it may not go any further, it was something that we run the post office box for. Did you not read this document?...No, I did not, even now. ... Just let me understand?...Yes. This is a document compiled by your client's accountant about transactions that your clients had been involved in. Am I right so far?...Well, it's a document . . . Is that right so far?...No, I don't know if that's totally correct. When I received this document at our office, I don't have a recollection that I was invited to comment or it had any significance to me. I'd provided some information to the Chaplins, as I understand it, in relation to funds that had been telegraphically transferred to the United Kingdom, and our office was regularly used as a post office box for Mrs Chaplin or their accountant, and it's my view that this is material that came through our office at some stage, but it wasn't material that was for my attention or my involvement. But it contains a breakdown, as I was starting to put to you, of a total of $3.3 million, which is the money that went out of your trust account to Hillsdon?...That's what it - on reading it, yes, that's what it appears to contain, yes. And it's a document from, with the printed letterhead at the top, Touche Ross?...I think it's a document from Mr Barker. Yes, but there's no doubt about who created this document?...I don't have any doubt about it, no. And it was on your file?...That's correct. And you say you didn't run your eye over it?...No, I did not. It's none of my business. It's not to do with me. I'm not involved in their trading, I'm sorry."

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This reaction from Mr Campbell is not one that would be expected from a legal adviser who is discussing a transaction that he regarded as authentic. There was an abundance of supporting evidence to corroborate the direct testimony of Mrs Chaplin. The record of interview contains reactions from Mr Campbell that are inconsistent with the role of a legal adviser who has acted innocently. Putting to one side the letters from Mrs Chaplin, his own letters to her are wholly consistent with her oral testimony that he knew that she and her husband were to receive substantial moneys through Mr Hillsdon. If the jury then accepted her evidence that she had transmitted her letters and rejected his evidence (when he denied receiving them) and it would have been quite reasonable for the jury to do this, a conviction became inevitable. Count 2 - The pink Argyle diamonds transaction The second count in the indictment alleged that Messrs Campbell and Barker were parties, together with Mr and Mrs Chaplin, to the defrauding of the Commonwealth by deceiving the ATO "as to the true circumstances of the arrangements between Ellen Elizabeth Chaplin, Christopher John Chaplin and Vincent Anthony Hillsdon 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". Between February and May 1989, Mr and Mrs Chaplin bought some pink Argyle diamonds at a cost of $542,628.22. The Crown contended that the Chaplins delivered the diamonds to Mr Hillsdon under an arrangement whereby he would later return them to the Chaplins upon their arrival in the United Kingdom. The Crown case was that the diamonds were intended to be part of the Chaplins' asset protection scheme. Under that scheme the diamonds were to be supposedly sold overseas (once more utilising the services of Mr Hillsdon) and the sale would be effected at an apparent loss. The truth of the matter, according to the prosecution, was that Mr Barker, acting as a courier, took the diamonds to the United Kingdom in June 1989 and handed them over to Mr Hillsdon. Mr Hillsdon gave the diamonds to Mrs Chaplin when she arrived in the United Kingdom in September of that year. The Crown case was that the ATO was subsequently falsely told by both Mr Campbell and Mr Barker that the diamonds had been sold at a loss and that the proceeds of sale had been invested in the currency trading program. Mrs Chaplin said in her evidence that the information given to the ATO was all false; she confirmed that she had retrieved the diamonds from Mr Hillsdon for a fee. The Crown conceded that there was no evidence of Mr Campbell being involved in any plan to take any diamonds out of the country. However, it was submitted that there was evidence that he subsequently became aware of the scheme and that he was thereafter a party to deceiving the ATO about the circumstances of their alleged disposal. The case against Mr Campbell on count 2 commenced with a memorandum from Mrs Chaplin to Mr Campbell dated 18 May 1989; it listed the assets that she and her husband were prepared to sell to raise cash to pay their liabilities to the ATO. Item 6 on the list was an entry styled "Diamonds".(p130) They were given a value of $520,000.00 but there was an endorsement "these wont be for sale". Next there was the conference on 4 September 1989 with officers of the ATO when Mr Campbell allegedly participated in knowing and falsely representing that the diamonds had been sold. (The circumstances of that meeting are discussed in more detail under count 3). Once again, Mrs Chaplin's evidence was central to the issue. But, as with count 1, it did not stand alone. In a letter dated 12 September Mrs Chaplin wrote Mr Campbell:-

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Mr Campbell denied receiving these letters but on 21 October he wrote Mrs Chaplin saying, among other things that he "will follow up the Teckvest diamond letters". Perhaps the most damaging evidence was a bundle of letters found by the police at Mr Campbell's home. The bundle comprised a letter from Mrs Chaplin to Mr Campbell dated 27 November 1989 which said, in part, "I am returning diamond letters with my comments ...". Attached to her letter were drafts of letters dated 23 June, 12 July and 9 August 1989, each of which was addressed to "Mrs E Chaplin, Precious Jewellers Pty Ltd, Style Arcade, Manuka ACT Australia" and each purported to have been written by "V A Hillsdon". The first and third of the letters contain annotations which Mrs Chaplin acknowledged were hers. She said in evidence that the letters were needed to create a false trail in the event of the ATO pursuing their investigations. The first letter, that of 23 June, commenced with the words: "Following a recent meeting with Mr Chaplin ...". Those words were the subject of the following annotation by Mrs Chaplin: "Chris arrived London 29 June, so date (of) letter wrong, maybe needs rethinking". The remaining annotations are not so dramatic but they are all consistent with the Crown case that a file of false correspondence with respect to the diamonds had been concocted. Mr Campbell acknowledged that these letters had been seized at his home but claimed that he did not see them until long after their arrival. He acknowledged that someone at Scott Campbell Shiels had opened the envelope and placed a stamp with the date "5 Dec" on the first page of Mrs Chaplin's letter. He then said in his evidence that it was his belief that the enclosures were then returned to the envelope but that the envelope and its enclosures were not placed on the relevant file and were not shown to him. He explained that he had ceased to be a partner of Scott Campbell Shiels shortly after the police searched the premises on 19 July 1991 and thereafter, that, someone in the office had boxed up some documents and delivered them to his home. He claimed that he had learned of the existence of this bundle of letters sometime after he received the box of documents at his home and examined the contents. However, this explanation does not explain why Mrs Chaplin would have written such a letter to him unless it was part of a plan orchestrated by her to involve her legal adviser falsely in her criminal conduct. This is highly unlikely as it would have required, on Mr Campbell's version, a measure of co-operation on the part of someone in Mr Campbell's office. There was evidence from which the jury could conclude that Mr Campbell, at some stage, became aware of this charade and knowingly participated in it. Such a conclusion could not be regarded as being unsafe or unsatisfactory or against the weight of the evidence. It seems evident that the jury was prepared to accept the evidence of Mrs Chaplin notwithstanding her unsavoury conduct. They were entitled to do that and the attention of the Court has not been directed to any part of the transcript that would justify this Court's interference. It is timely at this stage to summarise the appellant's situation. By their verdict of Guilty on count 1 the jury were satisfied beyond reasonable doubt that Mr Campbell knew that the Teckvest agreement was a sham and that it was intended that, after deduction of his fee, Mr Hillsdon would return the balance of the money to Mr & Mrs Chaplin. The jury must have been likewise satisfied that Mr Campbell knew that the sale of the pink Argyle diamonds and the dispersal of the proceeds of their sale was also a sham: hence the verdict of Guilty on count 2. After finding Mr Campbell Guilty on counts 1 and 2 the jury merely had to be satisfied that he had some meaningful part to play in the presentation or use of the affidavit in the proceedings in the Supreme Court to return a verdict of guilty on count 4. Similarly, to find Mr Campbell Guilty on count 3 the jury just needed to be satisfied he had some meaningful part to play in the presentation of the false information to the ATO officers at the conference on 4 September 1989. In other words if the Crown can sustain the convictions on counts 1 and 2 the state of evidence would leave no room for doubt about the convictions on counts 3 and 4. Conversely, if this court had come to the conclusion that the convictions on counts 1 and 2 had to be set aside, it would follow that the convictions on counts 3 and 4 would be unsafe. Count 4 - The conspiracy charge As the events that gave rise to this count occurred before the events dealing with count 3, it is appropriate to mention the facts dealing with this count so that the chronological sequence is maintained. The fourth count charged Mr Campbell and Mr Barker with perverting the course of public justice. Having served on Mr and Mrs Chaplin notices of amended assessments to income tax in amounts which, with penalties, exceeded more than $3m, the ATO on 26 May 1989 obtained certain interim ex parte orders from the Supreme Court of the Australian Capital Territory restraining the Chaplins from disposing of their assets. The matter was listed for further hearing on 2 June 1989. It was Mrs Chaplin's evidence that she wanted those orders set aside. At that particular stage, the diamonds had been bought but they were still in the country and although in excess of $700,000.00 had been sent to Mr Hillsdon, there was still a further $2.7m or thereabouts in cash that the Chaplins wished to remove from the jurisdiction. In her attempt to obtain a discharge of the Supreme Court's orders, Mrs Chaplin swore an affidavit in which she deposed to the details of the Teckvest agreements, falsely asserting their authenticity. This affidavit was prepared by one of Mr Campbell's partners as he was then absent on holidays. But he returned on 1 June 1989 and resumed control of the conduct of the matter. It was the case for the Crown that, in participating in the presentation or use of that affidavit in the Supreme Court proceedings, well knowing that its contents were false in material particulars, both Mr Campbell and Mr Barker conspired to pervert the course of justice. The ploy was successful. Counsel for the ATO and the Chamber Judge expressed their satisfaction with Mrs Chaplin's explanation about the Teckvest agreements and the purchase of the computer programs. The order restraining the Chaplins from disposing of their assets was discharged. The diamonds, which had been deposited with the Court were returned to the Chaplins. On 6 June 1989 Mr Barker left Australia with the diamonds and on 8 June approximately $2.5m was transmitted from the trust account of Mr Campbell's firm to Mr Hillsdon. On 28 June 1989 Mr Chaplin left Australia. There was evidence of Mr Campbell's involvement in the Supreme Court proceedings. The fact that his partner prepared the affidavit was immaterial. It was the use to which the affidavit was put that constituted the gravamen of the charge. The jury had earlier satisfied themselves that Mr Campbell knew the Teckvest agreements were a sham and they were satisfied that Mr Campbell knew of the contents of the affidavit. With this knowledge Mr Campbell participated in using the affidavit obtain from the Supreme Court a discharge of its earlier orders. It followed that a conviction on this count was the only logical conclusion. Count 3 - The September meeting In the third count, Mr Campbell alone was charged with defrauding the Commonwealth. The particulars were that on or about 4 September 1989, he deceived "the Australian Taxation Office as to the financial circumstances of Ellen Elizabeth Chaplin and Christopher John Chaplin and the ability of ... [each of them] ... to pay the required taxation and penalties pursuant to an assessment issued by the Australian Taxation Office to the said Ellen Elizabeth Chaplin and Christopher John Chaplin on about 16 May 1989". At a meeting with officers of the ATO on 4 September 1989 a compromise was reached about the objections to the Chaplins' amended income tax assessments. Mr Campbell attended the meeting on behalf of the Chaplins: Mr Barker did not attend. Under the compromise the Chaplins were to withdraw their objections and the ATO would issue further amended assessments to reflect the compromise. The object of the conference had been to agree the amounts of the Chaplin's liabilities for income tax and penalties. The case for the Crown was that at that conference Mr Campbell knowingly lied to officers of the ATO about the Chaplins' ability to pay the assessments and penalties. The evidence of the officers from the ATO was that they were primarily interested in ascertaining whether the assessments could be maintained; but independently of the accuracy of the assessments they were also concerned about the ability of the Chaplins to pay. They explained that it would not be commercially expedient to pursue taxpayers for amounts which were beyond their capacity to pay. The Taxation officers claimed that they were deceived because they were not told the truth about the Teckvest agreements. It was their evidence that during the course of the conference Mr Campbell told them that the computer programs, as pieces of software, had no value to anyone but the Chaplins and that they had no value to the ATO as an asset. The evidence in chief of a Mr Twigg, an officer of the ATO about the conference of 4 September was as follows:-

[24]

The officers of the ATO were further misled at this conference with respect to the sale of the Chaplins' jewellery business "Precious Jewellery". The Crown case was that the business had been sold to a company controlled by Mr Campbell's wife for about $239,000.00 when, in truth, its value was in excess of $900,000.00. The ATO did not know at the time that this sale was a sham. The circumstances of the sale of "Precious Jewellery" led to Mr Campbell and Mrs Harper being convicted at the first trial. The Crown presented its case upon the premise that these deliberately false statements moved the officers of the ATO to believe that the Chaplins would not have the financial ability to pay the tax and penalties in the amended assessments dated 16 May 1989. In other words, the ATO was induced to believe that the Chaplins no longer had the value of the assets that were previously represented by the value of the diamonds and the moneys that had been paid under the Teckvest agreements. The Crown alleged that it was because of these factors that agreement between the Chaplins and the ATO was reached on a figure of approximately $1.9m, the ATO believing that was the best result that it could achieve. Before moving to the next ground of appeal, mention should be made of some additional complaints that were raised, without objection, by Mr Campbell during the course of his oral submissions. None of them, however justifies this Court interfering with the jury's verdicts. The amount of the Chaplin's tax liability Mr Campbell complained that the learned trial judge, in his summing up to the jury, fell into error when he discussed the amounts of the Chaplins' liabilities for income tax and penalties. There is a suggestion from a perusal of the transcript that he may have abandoned this point; he said "I do not pursue the submission further at this stage". In case there was not a total withdrawal, the matter should be mentioned. On 16 May 1989, the ATO had issued amended assessments against the Chaplins and some of their companies for amounts totalling in excess of $3.8m. The Chaplins had lodged objections and, on the Crown case, had made submissions to the ATO that, in any event, they did not have assets to meet assessments of that size. The negotiations between the Chaplins and the officers of the ATO culminated with the meeting of 4 September 1989 when Mr Campbell, on the Crown case, deliberately gave the ATO officers false information about the value of the Chaplins' assets. It is a fact that subsequent to the conference further amended assessments were issued in the names of the Chaplins in amounts totalling about $1.9m. In that context his Honour said to the jury:-

[26]

Mr Campbell complained about his Honour's reference to $2.8m claiming that the correct amount for income tax and penalties was "a matter of some conjecture amongst the various witness ...". That is true, but it is equally true that his Honour's remarks were an accurate reflection of the evidence of a Mr Harvey, an officer of the ATO, who gave evidence in the trial on behalf of the prosecution. In any case, the answer to Mr Campbell's complaint is that it was not necessary for the Crown to prove the actual loss that the ATO had suffered or was likely to suffer. His Honour correctly directed the jury that in order to establish that the Commonwealth was defrauded, the Crown did not have to demonstrate that actual loss was suffered. If the deceit or concealment that was employed by an accused person imperilled the economic interest of the Commonwealth, it would be sufficient: R v Allsop [1976] 64 Cr App R 29; Wai Yu-tsang v The Queen [1992] 1 AC 269; and Barker v The Queen (supra) at p483. The gravamen of the charge is the conduct of the accused, not the reaction of the representee. His Honour's directions to the jury were accurate and clear; his reference to the figure of $2.8m was unnecessary but it would not have diverted the jury from its deliberations. There is no substance in this complaint. Teckvest's retention of the programs Mr Campbell further submitted that his Honour fell into error, first, by failing to make clear to the jury that the contractual arrangements subsisting between the Chaplins and Teckvest entitled Teckvest to retain possession of the currency trading computer programs, and secondly by not informing the jury that the Chaplins had not paid the last $141,000 to Teckvest and that Teckvest was therefore treating the Chaplins as defaulting purchasers. Mr Campbell submitted that these were issues to which the attention of the jury should have been directed because they tended to show that the Teckvest agreements were not a sham but a genuine commercial arrangement. There are two responses to the second of these complaints: neither counsel for Mr Barker nor counsel for Mr Campbell asked the learned trial judge to direct the jury on the subject and the subject does not have any apparent relevance to the issues in the trial. Retention by Teckvest of the computer programs might have been seen as inconsistent with the Chaplins' ownership but his Honour, at the request of counsel, drew the jury's attention to the relevant clauses in the Teckvest agreement which permitted Teckvest to retain the software and manage the operation of the currency trading program on the Chaplins' behalf. The perceived error by the learned trial judge, in Mr Campbell's submission was his Honour's failure to explain that Teckvest was also entitled to retain the programs under a management arrangement in the event of trading having ceased. Mr Campbell did not identify how this omission might have had any adverse effect upon his defence. There is no substance in these complaints. Dispatch of documents The next challenge that Mr Campbell raised was a submission that his Honour, during the course of his summing up, incorrectly told the jury that Mr Campbell had agreed that certain important documents, including the Teckvest agreements had been sent by Mr Campbell to Teckvest on 18 May 1989. This assertion had been made by the Crown as part of its case. In cross-examination it had been put to Mr Campbell that he dispatched the documents on 18 May prompted by the issue of the income tax assessments on 16 May 1989. Mr Campbell recognised a costing record from his office file for an international postage charge of $29.50 on that date and an International Express Post Form from his firm to Mr Hillsdon dated 18 May 1989 describing the contents of the envelope as "documents". After referring to that fact, his Honour then read to the jury a passage from the cross-examination of Mr Campbell:-

[29]

In other words his Honour was putting even handedly, the case for the Crown and the case for Mr Campbell. The Crown asserted that all documents were sent on 18 May. Mr Campbell acknowledged that some documents were sent on that day as evidenced by the Post Form and the charge of $29.50 but he did not accept that the agreements or that the letters of 5 and 10 May were included in those documents sent on 18 May. Mr Campbell was quite wrong when he suggested that the trial judge has misstated the facts. The first ground of appeal - Documentary Evidence The appellant complained in these terms:- "That the evidence of Detective Sergeant Pattenden at pages 1014, 1015 and 1016 in relation to the seizure of a substantial number of documents from the offices of Scott Campbell Shiels on 19 July 1991 pursuant to S10 warrant was in fact in error and that a substantial proportion of those documents tendered through various Crown witnesses was not seized on that date from those premises." It was common ground that the appellant was, at all times material to the issues in the trial, a partner in a firm of solicitors called Scott Campbell Shiels and that on 19 July 1991 officers of the Australian Federal Police lawfully entered upon the premises of that firm and seized many thousands of documents. In general terms it can be said that the seizure extended to any document that was or might be relevant to the affairs of the Chaplins. Leave was granted to Mr Campbell in these proceedings to file an affidavit in his name dated 15 June 1996 and to read a document styled "Property Seizure Record" annexed to that affidavit. It was a document compiled by the Australian Federal Police and it should have listed each document that was seized on 19 July 1991 from the premises of Scott Campbell Shiels. However, the Property Seizure Record was not completed accurately; it was not a detailed inventory of the documents that were seized. Exhibit AA in the trial contained a short identification of the many sources from which documents had been seized. That exhibit included a reference to the premises of Scott Campbell Shiels with a notation "10,000-13,130" indicating that 3,130 separate items had been seized from that source and that identifying numbers, commencing with the number 10,000 had been given to those items. The Property Seizure Record commenced with the following entries:- Item No. Description of Item seized 10000 1 x Original Photocopy Paper with writing on by Det Sgt Young Re. Sample of Photocopier 10001-11 10 x Pieces of Photocopy Paper with writing - Sample of Photocopier at offices of Scott Campbell & Shiels Fri 19/7/91 B>R> Young Det Sgt 1188 10012 1 x Brown Coloured Computer Printer

[30]

Thereafter there were a further four pages containing additional entries (but without identification numbers). Those additional entries contained mere general endorsements such as "44 x Yellow Index Cards Re: Clients Style Investments P/L and Chaplin C & E" and "1 x Yellow File No 890 Chaplin". (Style Investments Pty Ltd was a company that was owned and controlled by Mr and Mrs Chaplin). No further attempt was apparently made by the authorities to compile a more informative inventory. Mr Campbell submitted that the documents that were seized on 19 July 1991 by the police when they executed a search warrant at the offices of his firm were inadequately recorded on the Property Seizure Record. That assertion is correct, but it is questionable whether it supports Mr Campbell's complaint in his first ground of appeal, that "a substantial proportion of those documents tendered through various crown witnesses was not seized on that date from those premises". Out of these circumstances, the appellant has complained that the jury might have been misinformed about the sources of the documents that were tendered in evidence during the course of the trial. The nature of his complaints is very difficult to comprehend. At one stage Mr Campbell stated that certain documents (being documents that presumably were relied on by the Crown in the trial) would have originated from his firm's office but as they were not listed on the Property Seizure Record, it would have been inaccurate to have informed the jury that they were the subject of seizure by the Australian Federal Police on 19 July 1991. Having regard to the inadequacy of the Property Seizure Record, that is not necessarily the truth of the matter. The Crown's case did not depend upon the accuracy or the contents of the Property Seizure Record. The evidence of Detective Sergeant Pattenden to which reference was made in the first ground of appeal was given when he was being asked by the Crown Prosecutor to describe police procedures with respect to the execution of search warrants. The witness first explained that the police executed search warrants in relation to this matter at various locations on 19 July 1991 and that as a result "probably thousands" of documents were seized. Detective Sergeant Pattenden then said:- "... I prepared each search warrant execution team and advised them of a prefix which would be utilised for stamping each document. So, what would occur is at each individual location they would be allocated a prefix that may start at 10,001 and go through to 20,000 and then each document they would receive would be individually stamped with a number within that prefix range on a consecutive basis which would then enable anybody at a later date to identify where that document was located from. And this was done for each of the individual premises that was - where warrants were executed on that day. Was the idea of that that each document would be individually identified?...That' correct. And it would be permanently stamped with a number?...Yes, that's correct. And a record thereby kept?...That's correct. At the point of search and seizure, was the individual document noted in any particular way, other than by stamping on the document?...Yes, at, all bar the offices of Scott Campbell Shiels, each document would be stamped, provided with a number and then the details of the document and its identification prefect would be recorded on an Australian Federal Police property seizure sheet, which clearly identified the number, the contents and the time located, whom located by and whereabouts." His evidence continued:- "You did make reference to Scott Campbell Sheils. Ultimately, not particularly on that day, but at a later time, was that exercise also performed?...Yes, at a later date, on receipt of the documentation, a number of the documents were stamped. However, not all documents were stamped because some were obviously not relevant to the proceedings and a decision was made not to stamp those documents, although they were retained and are present in court today."

[33]

There are other passages in the evidence where reference is made to the methods and procedures of the police and the execution of search warrants but they do not carry the matter any further. Mr Campbell, during the course of his oral submissions, sought to challenge the accuracy of Detective Sergeant Pattenden's evidence concerning the subject of an injunction. But the issue was not ventilated at the trial and it is now too late to inquire into it. Mr Campbell's complaint was to the effect that Detective Sergeant Pattenden was wrong when he said that a different procedure was followed at Scott Campbell Sheils "because of the injunction application". According to Mr Campbell the "injunction application" occurred much later in the day and well after the commencement of the search. This fact, if it has been accurately stated, was not put to Detective Sergeant Pattenden and so he was deprived of the opportunity to give an explanation. Perhaps, for example, he was told shortly after he attended at the premises that an application for an injunction would be made. Mr Campbell further complained that the Crown had failed to record or disclose all documents that had been seized by the police. He instanced the file of papers that had been used in the Supreme Court proceedings on 2 June 1989 when Mrs Chaplin applied to discharge the injunction that had been obtained by the ATO. He submitted that some, but not all of those documents had been recorded. This complaint suffers from lack of substance. It fails to disclose the nature and detail of the missing documents and, more importantly, it fails to disclose how their absence might have caused a miscarriage of justice. Mr Campbell nominated seven documents which he claimed were or should have been in the possession of the prosecuting authorities and which were not produced at trial. The first of these was his file note of his telephone conversation with Mr Hillsdon on 5 May 1989. He had given his evidence in chief about that conversation without referring to the fact that he had made notes if it. It was only in cross-examination that he said that he had made notes. In the relevant passage of his cross-examination which is set out below Mr Campbell had every opportunity to complain that his notes were missing as a result of the police seizure. No such complaint was made:- "And then at some stage during the day you had a telephone conversation with Mr Hillsdon?...Yes, that's correct. You have not notes, no doubt, of that conversation?"... Yes, I did take notes. Do you have them now?...No, I don't have them now and I have looked for them. Did you make a file note?...I took notes of it, I don't know whether you could call it a file note but there were notes taken at that meeting. I asked you about the notes. Did you make a file note?...I cannot recall if I made a file note as such. Well, you were being presumably careful about this I take it?...I was trying to be careful, yes. ... And you have taken to the file notes?...Yes, I have. And I think you have said, in effect, that they accurately reflect what occurred, that's right, isn't it?...The essence of what occurred, yes, that's correct. Well, I think you were actually - never mind, we will come back to that. Now, your conversation with Mr Hillsdon then is totally dependent on your recall?...Yes, it is. You have no note and you are not aware of any file note that records that conversation?...I am aware of notes but they are not available for me to look at."

[37]

Mr Campbell answered "I think it is what I am saying", but went on to add that he did not have this new material. It is not necessary to comment upon the remaining documents to which Mr Campbell referred. This ground of appeal suffers from the deficiency that there is nothing that points to the possibility of a miscarriage of justice. Mr Campbell's submission was that the only documents that were seized from the offices of his firm on 19 July 1991 were those referred to on the Property Seizure Record. He said that his submission was substantiated by the contents of a cassette tape but that tape was not in evidence. He considered that 99% of the documents that were referred to during the course of the trial as having come from the offices of Scott Campbell Shiels were not in fact seized on that day. However, he readily agreed that many of them would have emanated from that source in any event. He could not say how they came into the possession of the authorities. He did not know whether there had been another search on another day or whether someone in his firm had voluntarily delivered papers to the authorities. If Mr Campbell's version of the facts is accepted (and it does not appear that any of them were the subject of evidence or submissions arising out of the course of the trial) this Court is still left with the unanswered question: how might such facts, if disclosed in evidence during the trial, have affected the outcome of the trial? When pressed by the Court to address this issue Mr Campbell surprisingly answered that he did not believe that they would have any effect on the outcome. He had only raised the issue, so he said, as an example to support his complaint that he had been unfairly criticised because of his inability to produce documents (of which his file note of his telephone conversation with Mr Hillsdon on 5 May 1989 was an example). This proposition contradicted his earlier submissions and exhibited the readiness of Mr Campbell to change his submissions when he found himself in an untenable position. Mr Campbell's complaint about the seizure of documents that came from the offices of Scott Campbell Shiels was, for all practical purposes, raised for the first time on this appeal. There was no suggestion that the issue of documents had been raised in the original trial. Similarly, during Mr Campbell's retrial the question of the details of seizure of documents on 19 July 1991 was not the subject of serious comment or criticism. It is apparent that in his preparation for this appeal Mr Campbell came across the inadequacy of the information in the Property Seizure Record and sought, for the first time to use its deficiencies to his advantage. There is a measure of appeal in the submission by counsel for the Crown that Mr Campbell's complaints about the documents are a reaction to his cross-examination at the trial about his failure to produce documents that might otherwise have supported his oral evidence. The ground of appeal has no merit. It achieves nothing to establish that the Property Seizure Records were inadequately prepared unless that fact might in some way point to a miscarriage of justice. There is no suggestion that any such miscarriage occurred. One is entitled to be critical of the inadequacies of the police records but that, without more, can not help the appellant. It is for him to point to the potential for the unfair use or the unfair absence of a document. A court of appeal would be quick to inquire in circumstances where the use or absence might have led to a miscarriage of justice. But in this appeal, Mr Campbell was not able to point to any grounds that would warrant such an inquiry. This ground of appeal therefore fails. The second ground of appeal - The jury-room incident The second ground of appeal, which may for convenience be referred to as "the jury room incident" was as follows:-

[47]

Finally, there was his Honour's clear statement to the jury that "nobody who is in this courtroom" (and that would have included both accused) "could have got access to the juryroom". The test that the learned trial judge had to apply was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of a juror: Webb v R; Hay v R (1994) 122 ALR 41 at 43 per Mason CJ and McHugh J: see also Brennan J at p51, Deane J at p62 and Toohey J at p75. In that case a juror, on the second day of the judge's summing up gave a bunch of flowers to a person with a request that they be given to the victim's mother. Mason CJ and McHugh J in their joint judgment were of the opinion that the learned trial judge should have concluded that the conduct of the juror gave rise to a reasonable apprehension of a lack of impartiality. However, as they pointed out, such a finding "is not the end of the matter" (p50). Their Honours went on to note that the fair-minded and informed observer would also consider matters such as the judge's warning and other issues relevant to the case in question. The facts in Webb and Hay (supra) were very dramatic. Unusual as the circumstances of the present case may be, they do not have the same strong emotional impact and the warning of the learned trial judge was so firm and so clear as to dispel any suggestion of lack of impartiality. Mr Campbell submitted that there was an unacceptable risk that the jury might have thought that he or Mr Barker was responsible. He also submitted that the loss of the wallet suggested evidence of dishonesty and that might have hardened the minds or attitudes of the jury to Mr Campbell and Mr Barker because of the fact that they had been presented to the jury on charges of dishonesty. These submissions are not to be dismissed arbitrarily, but they do not amount to matters of sufficient concern in the face of the judge's warning to the jury. Courts recognise that juries throughout the country competently perform their duties in accordance with the directions that are given to them by trial judges. This was not an occasion when the nature of the event was so serious that the mischief could not be undone. This ground of appeal must fail. The third ground of appeal - The Restaurant Incident The third ground of appeal was as follows:- "That the trial Judge exhibited bias and or prejudice towards Campbell when on 24 October 1995 (in the second week of the trial) he told two members of the public at Shalimar Indian Restaurant, Civic, what sentence he would give a co-accused at a point in the trial when the Crown's first witness was still giving her evidence in chief." When the appeal was called on for hearing, Mr Campbell sought the leave of the Court to file and read his affidavit that had been sworn on 15 June 1996. After hearing submissions from the parties, the Court granted Mr Campbell leave to file the affidavit and to read sections of it but refused his application to read pars 4 to 10 inclusive, they being the provisions dealing with the Restaurant incident. The Court said, in refusing the application, that it would publish its reasons in due course. What follows are those reasons. In that section of his affidavit that was not read, the appellant addressed the Restaurant incident. It transpired that the appellant was dining alone at the Restaurant and that it was the appellant who heard the alleged conversation involving the judge and the two members of the public. It was not suggested in the affidavit that his Honour had seen, or looked at, or recognised Mr Campbell. In fact, through its silence, the affidavit suggested the contrary. But in the course of his oral submissions Mr Campbell went so far as to assert that the trial judge was looking at him and must have recognised him as he made his remarks about what sentence he would give Mr Barker. The gravity of the appellant's accusation had grown, testing credulity. By the time he had concluded his oral submissions, Mr Campbell's assertions had grown to a proposition that may be summarised as follows:- the trial judge, conscious of Mr Campbell's presence and either knowing that Mr Campbell would hear him or being recklessly indifferent as to whether Mr Campbell could or could not hear him, publicly discussed an aspect of a trial in which Mr Campbell was a co-accused. That proposition does not accord with the ground of appeal. The ground of appeal did not disclose that the appellant was present in the Restaurant nor did it disclose that the judge was aware of the appellant's presence. Finally, the ground of appeal did not contain any suggestion of wilful deliberation on the part of the judge. That was presented for the first time in oral submissions before this Court. But the factor that destroyed the appellant's attack upon his Honour was his failure to make any complaint immediately upon his return to court. In his affidavit he claimed:- "I return[ed] to the court and immediately informed my solicitor, Ms A Lumsden, and my counsel, Mr B Salmon, QC, of what had occurred, expressing my extreme alarm at the prospect of a fair trial when the trial judge was telling members of the public what sentence he will impose on a co-accused being tried jointly. I also informed the Probation Office." No support for the appellant's assertion has been forthcoming from Ms Lumsden, Mr Salmon or any officer of the Probation Office. Nor has there been any explanation from Mr Campbell's legal advisers about their apparent failure to raise the Restaurant incident with the trial judge. Mr Campbell during the course of his submissions, acknowledged that he had not given instructions to his counsel to seek a discharge of the jury as a result of the Restaurant incident. At one stage during the course of his submissions, it seemed that he had made that particular decision because he was in receipt of legal aid and had the impression that if there was a mistrial he would not receive legal aid for another re-trial. However, there was nothing in the Appeal Book to support this assertion. Indeed, it is difficult to accept this submission as the issue of legal aid did not prevent Mr Campbell, on the following day, instructing his counsel to apply for a mistrial because of the juryroom incident. In any event, he later repudiated that explanation during the course of his submissions, suggesting that he had left it to his legal advisers to advise him what he should do. If something occurred in the restaurant which, in the opinion of Mr Campbell, would have constituted grounds for the learned trial judge disqualifying himself as the trial judge, the time to raise the issue was as soon as reasonably practicable after the occurrence of the incident: Vakauta v Kelly (1989) 167 CLR 568. That was a civil case dealing with damages for personal injuries as a result of road accident. During the course of the trial the learned trial judge made a number of remarks critical of three doctors who were commonly called as defence witnesses in cases such as that before the Court. The defendant's counsel took no objection to the remarks and made no application based on them. The defendant subsequently appealed against the quantum of the award for damages on grounds that included both actual and ostensible bias. In the High Court a clear line of demarcation was drawn between the remarks that his Honour made during the course of the trial and the contents of his reserved judgment. The contents of the judgment were assessed as "ostensible bias" by Toohey J at p588 whilst Dawson J said that "his Honour failed to consider the evidence in the case fairly and impartially, putting to one side his preconceived views about the G.I.O. and its witnesses" (p579). Brennan, Deane and Gaudron JJ in their joint judgment said that the trial judge's comments in his judgment fell "on the wrong side" of a line between comments that would and comments that would not be likely to "have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer" (p573). However, all members of the Court agreed that the failure of counsel to complain during the course of the trial amounted to a waiver of the right to object on appeal with respect to the remarks that were made by the trial judge during the course of the trial. In their joint judgment Brennan, Deane and Gaudron JJ said:- "Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her." (p572) Toohey J said at p587:-

[50]

However, after making that observation, Dawson J acknowledged that even in a criminal prosecution Isaacs J, in Dickason v Edwards (1910) 10 CLR 243 at 260 was clearly of the view that a party may waive the objection. Dawson J then quoted the following passage from the judgment of Isaacs J:- "So that the principle seems to me to be this - that, if the person whose presence is challenged can fairly be said to be biased, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these qualifications. Even in a public prosecution a party may waive the objection. One of the strongest examples of this is the case of Wakefield Local Board of Health v West Riding and Grimsby Railway Co 122 ER 1386. There the Statute provided that the justices should be disinterested parties, but the words were held not necessarily to prevent waiver. A distinction has been drawn between public judicial tribunals and private judicial tribunals, but I am not satisfied that that is a sound distinction." R v Sarek [1982] VR 971 is an example of the willingness of an Appeal Court to intervene and set aside a verdict notwithstanding a waiver of rights by an accused in the court below. The accused, in evidence in chief, had referred to the fact that he had certain previous convictions. The prosecutor, without first obtaining the leave of the trial judge as required by s 399 of the Crimes Act 1958 (Vic), cross-examined the accused and elicited details of additional convictions that had not been referred to by the accused during his evidence in chief. When it was realised that leave should have been obtained, the solicitor who was acting for the accused took time to consider the matter and then informed the trial judge that he did not wish to have the jury discharged because of the contravention. The trial continued and the accused was convicted. On an application for leave to appeal against conviction, the Full Court was of the unanimous view that the cross-examination without leave was irregular, that the evidence elicited as a result was inadmissible and as the jury had been called on to determine the guilt of the applicant on material that included inadmissible evidence, leave to appeal was granted and the appeal allowed. However, even with this result there were passages in the judgments of the members of the court pointing to the fact that the manner in which an accused and his advisers have conducted themselves during the course of the trial are matters that warrant much weight. For example McInerney J with whom Kaye J agreed said at p982:-

[56]

If that represented the truth of the matter, a deliberate decision must have been made that it was in the best interests of Mr Campbell that there should be no complaint. The overriding test is to question whether there has been a miscarriage of justice, for if there has, it would be incumbent on a Court of Appeal to intervene. As to this, not even the most favourable view for Mr Campbell would warrant such intervention. The correct procedure would have been for Mr Campbell's counsel to draw the matter to the attention of his Honour so that it could have been appropriately ventilated in open court. That is what happened in Balic (No2) (1994) 75 A Crim R 515. In that case the solicitor for the accused overheard the trial judge make a statement before the trial had commenced that he intended to revoke the accused's bail. Subsequently, the case was called on and the judge, without any application from the Crown, did revoke bail. Thereafter, an application was made to the judge that he disqualify himself. That application was supported by an affidavit from the solicitor in which he deposed to what he overheard; there were also affidavits from the accused and others to whom the solicitor had reported the incident. The purpose of those affidavits was to lay down a foundation for perceived bias. The Court of Appeal concluded that the trial judge erred when he refused to disqualify himself. The procedure that was adopted in Balic's Case (supra) could have and should have been adopted in this case if the incident occurred and was of concern to Mr Campbell. Two further observations can be made about this ground of appeal. First, in the form in which it was presented, it referred only to the issue of sentence and only to Mr Barker. So far as Mr Campbell was concerned the alleged remarks did not address any question of his guilt or innocence (which, in any event was within the domain of the jury). The alleged remarks also did not refer to the subject of what sentence would or might be imposed upon him. That alone might explain why his counsel decided to take no action. Secondly there was nothing in his Honour's summing up to the jury nor was this Court's attention drawn to any section of the transcript which would amount to any actual or perceived bias on the part of the trial judge during the course of the trial. Whatever might have occurred in the Restaurant, neither the incident nor any part of it nor an opinion or attitude consistent with it was conveyed to the jury. The jury's deliberations were not therefore tainted in any way so far as this ground of Appeal is concerned. Subject always to the overriding consideration that the Appeal Court must be satisfied that there has been no miscarriage of justice, it is pertinent to note the comment of O'Connor J in Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879 at 881, a comment that was quoted with approval by Isaacs J in Davison v Vickery's Motors Ltd (in liquidation) (1925) 37 CLR 1 at 8:- "The question always is whether, if the point had been taken at the trial, the defect could have been remedied. This point, if well founded, must have been fatal." It is clear that the matter could have been resolved if Mr Campbell had instructed his counsel to raise it with the trial judge. If Mr Campbell had made a mistake or misheard the conversation (assuming that there was some incident at the Restaurant) the trial judge could have put his mind at rest. Even if one were to allow for the possibility that the incident did occur, the trial judge would have had the opportunity, knowing of Mr Campbell's concern, to assess the position and make a decision to abort or continue the trial. Whatever may be the truth of the matter, it was an occasion when the defect could have been remedied if the point was taken at trial. This ground of appeal also fails. Conclusion Mr Campbell has failed on each of his grounds of appeal. His appeal against each conviction must therefore be dismissed. Mr Barker's appeal against sentence The appellant was found Guilty by his jury on two counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth). Those were counts 1 and 2 dealing with the Teckvest agreements and the pink Argyle diamonds. The penalty for a breach of s 29D is 1000 penalty units or imprisonment for 10 years, or both. Mr Barker was also found Guilty of the common law offence of perverting the course of public justice. That was count 4, the conspiracy charge, dealing with the presentation and use of Mrs Chaplin's affidavit in the Supreme Court proceedings. There is no limitation on the penalty that may be imposed for such an offence. His Honour imposed terms of imprisonment of four years in respect of counts 1 and 2 and three years in respect of count 4. All sentences were to be served concurrently with a non-parole period of 18 months. In his notice of appeal the appellant claimed that the sentence "was manifestly harsh" and that his Honour erred in failing to give due weight to the following factors:- "(1)Time already spent in prison. (2)The circumstances under which the appellant served time in prison. (3)The extent of the delay between the appellant's release from prison and his retrial. (4)The appellant's age and state of health. (5)The extent to which the appellant's rehabilitation had advanced prior to his sentencing." The learned sentencing judge did, in fact, have regard to each of those five factors. The question is: did he have sufficient regard to them? That issue can be addressed in

[57]

considering whether the sentences imposed by the learned sentencing judge were manifestly excessive. One of the strongest submissions made on behalf of Mr Barker was based upon a comparison with his sentences on the first trial. On that occasion head sentences of five years (as compared with four years on the retrial) were imposed with respect to the counts that dealt with the Teckvest agreements and the pink Argyle diamonds. The same sentence of three years had been imposed on count 4, the conspiracy charge. In addition head sentences of 2 years and 5 years were imposed on the remaining counts of defrauding the Commonwealth and organised fraud. Neither of the last two matters are to be considered on this appeal; the jury could not agree on the first of them and the Crown elected not present Mr Barker on the second. As a result of an inquiry from the bench, counsel for the Crown informed the court that it was not proposed to proceed against Mr Barker on these two matters. Consideration of his appeal against sentence is therefore to be assessed upon the premise that he is no longer in jeopardy of further prosecution. On the original sentence as a result of the first trial his Honour ordered that all sentences be served concurrently and fixed a non-parole period of two years. The comparison is therefore between head sentences on the first trial of 5 years with a non-parole period of 2 years and head sentences on the retrial of 4 years with a non-parole period of 18 months. Counsel for Mr Barker submitted that it was self evident that the sentences on the retrial were manifestly excessive because Mr Barker was sentenced only in respect of 3 convictions as against 5 convictions on the original trial. Furthermore his counsel submitted that one of the earlier convictions, organised fraud, attracted a maximum penalty of imprisonment for a period not exceeding 25 years; see s 83 of the Proceeds of Crime Act 1987 (Cth). Counsel also submitted that the reduction in the non-parole period was illusory because Mr Barker had spent in excess of 5 months in prison as a result of his convictions on the first trial before being released as a result of his successful appeal. The appellant is now 60 years of age; he has valvular heart disease and according to one of the medical reports that was placed before the learned sentencing judge there is "a reasonable chance he will need valve surgery within the next 5 years to repair his leaking mitral valve". During his period in prison, the appellant suffered hardships which his Honour took into account in the sentencing process. In the report of Mr Nomchong, a Clinical Psychologist, references were made to harsh treatment, ridicule from staff and the appellant's feelings that he was being treated "like absolute dirt". This was thought to have resulted from the learned sentencing judge expressing the wish that he "not be placed with hardened criminals" and that he not undergo hard labour.

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Whilst on bail, awaiting retrial Mr Barker involved himself in charitable works and fund raising and a letter of gratitude from the High Commissioner for Nigeria was tendered in evidence on his behalf. He also participated in a scheme to promote employment prospects for ex-offenders. Through no fault of Mr Barker's, there was a lengthy delay of about 11 months between his successful appeal and the commencement of the second trial. These matters were all taken into consideration by his Honour. Furthermore, his Honour expressly stated, as he had when he first sentenced Mr Barker, that the sentences should be served without hard labour. The power of a Court of Criminal Appeal to interfere on the ground that a sentence is manifestly excessive was concisely stated in The Queen v Morse (1979) 23 SASR 98 by King CJ with whom White and Mohr JJ agreed at p99:- "This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender." At about the same time, a Full Court of this Court said on the same subject:- "An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (p476)" (R v Tait and Bartley (1979) 24 ALR 473.) The learned sentencing judge implemented a material change in the sentencing pattern by reducing the effective head sentences from five years to four years. This factor should not be overlooked nor should it be regarded as a matter of insignificance. However, the fact that a prisoner may not have to serve out the whole of his sentence does not make it any the less a punishment. Even a head sentence that is wholly suspended is, for reasons set out in the judgment of Bray CJ in Elliott v Harris (1976) (No 2) 13 SASR 516 at 527, properly to be regarded as a punishment. A head sentence reflects the juridical proposition that the punishment should always fit the crime. A head sentence must always be properly proportionate to the crime and, so, the imposition of a head sentence, irrespective of the length of a non-parole period, is properly to be regarded as a measure of punishment. Thus a reduction of one year (or 20% of the original term of the head sentences) was a substantial reduction and reflected the difference in the appellant's circumstances. Viewed through the eyes of Mr Barker, there was, however, virtually no reduction in the period of time that he would spend in prison. Admittedly, his non-parole period had been reduced from 2 years to 18 months but when the 18 months is added to the period of time that he spent in jail before his successful appeal, his total time in prison will be about 3 weeks short of two years. If the purposes of punishment are to be served, in fixing a non-parole period a sentencing judge will always have regard to the personal circumstances of an offender and the judge must also direct his or her attention to the minimum period for which the offender must remain in prison: The Queen v Hunter (1984) 36 SASR 101. It seems quite clear that his Honour was aware of this slight reduction in the actual time to be spent in prison having regard to the totality of his remarks and his obvious attempts to assist the appellant. The learned sentencing judge faced a difficult task. He was virtually constrained to imposed lighter head sentences: c.f. Gilmore, [1979] 1 A Crim R 416. Yet, as his Honour said of the appellant, he was "the architect " of the scheme and "his criminality was substantial and sustained". As a result of his conduct the ATO was denied access to money to which it was entitled. Two passages from the learned sentencing judge's remarks warrant repetition for the first emphasises the need for severe punishment whilst the second recognises his Honour's willingness to give every consideration to Mr Barker in the sentencing process. First his Honour said:- "Where professional people abuse their position to pervert the course of justice, public confidence in the judicial system will be lost unless it is made clear that such conduct will bring a prison sentence." (p81-82) Later his Honour said:-