CASSELL v DIRECTOR OF PUBLIC PROSECUTIONS & ORS

LEGISLATION CITED : Criminal Appeal Act 1912 Independent Commission Against Corruption Act 1988 R v Cassell (1998) 45 NSWLR 325 CASES CITED: Cassell v The Queen (2000) 74 ALR 535 May v O'Sullivan (1955) 92 CLR 654 DECISION : Summons for prerogative relief dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40417/00 DC 92/12/1-52 HANDLEY JA SHELLER JA FOSTER AJA

CASSELL v DIRECTOR OF PUBLIC PROSECUTIONS & ORS JUDGMENT

1 SHELLER JA: This application comes before the Court in the form of an amended summons by the claimant, Barry John Cassell, for, amongst other things, an order that his Honour Judge Downs QC hear and determine according to law an application by the claimant pursuant to s5B of the Criminal Appeal Act 1912 that the questions of law arising on an appeal before his Honour from the Local Court be submitted to the Court of Criminal Appeal for determination. 2 Relevantly, s5B(2) of the Criminal Appeal Act provides that at the request of a person who is a party to such an appeal a question of law may be submitted under subs (1) to the Court of Criminal Appeal for determination. 3 The background of this application can be stated shortly as follows. On 6 and 7 September 1989 the claimant purportedly gave evidence before the Independent Commission Against Corruption ("ICAC"). On 25 July 1991 four Informations were laid in the Local Court against the claimant alleging that part of this evidence was false. The Informations were laid under s87 of the Independent Commission Against Corruption Act 1988 ("the Act"). 4 Each Information alleged the claimant gave false evidence in a material particular. In the first Information the allegedly false evidence was that Thomas Edward Paul Hogan did not participate in the business, nor share in the profits, of Consultants Corporation (Holdings) Australia Pty Limited, in the second, that the claimant did not have business dealings with Thomas Edward Paul Hogan, a councillor of Tweed Shire Council, in the third, that Michael John Ross did not participate in the business, nor share in the profits, of Consultants Corporation, and in the fourth, that the claimant did not have business dealings with Michael John Ross. In each case such evidence was alleged to have been false to the knowledge of the claimant. The claimant pleaded guilty and was convicted and sentenced in the Local Court on all four Informations. 5 From those convictions the claimant appealed to the District Court. The appeal came before his Honour Judge Downs in November 1994. His Honour indicated that he intended to uphold all four appeals and refused the Crown application to state a case to the Court of Criminal Appeal. After a successful application by the Crown to the Court of Appeal against this refusal, on 24 July 1996 the Court of Criminal Appeal held on the stated case that Downs DCJ had erred in finding that the four Informations were insufficient in law. 6 In June 1997 the prosecution case on appeal from the Local Court again came before Downs DCJ. Both parties addressed on whether there was a prima facie case. Upon his Honour's finding that there was a prima facie case, the claimant's counsel requested his Honour to state a case to the Court of Criminal Appeal on a number of points of law. On 6 November 1998 the Court of Criminal Appeal answered all the questions stated by Downs DCJ in the negative finding no error in his Honour's determination; R v Cassell (1998) 45 NSWLR 325. The claimant obtained special leave to appeal to the High Court from that part of the decision which dealt with the presumed regularity of the proceedings before the ICAC. On 10 February 2000 the High Court by a majority upheld the decision of the Court of Criminal Appeal and dismissed the appeal; Cassell v The Queen (2000) 74 ALJR 535. 7 On 23 May 2000 the proceedings resumed before Downs DCJ. No further evidence was called beyond that dealt with in June 1997 on the argument about whether there was a prima facie case. Both parties addressed on written submissions about whether the prosecution case had been proved beyond reasonable doubt. His Honour stood the matter over to the following day for judgment. 8 On 24 May 2000 Downs DCJ found all four Informations proved beyond reasonable doubt and made orders dismissing all the appeals. Counsel for the claimant then asked his Honour to state another case to the Court of Criminal Appeal. His Honour held the application to be frivolous and refused it. This application for prerogative relief is directed to that refusal by his Honour. 9 The claimant has handed up to the Court a document headed "Questions of Law" in the proposed stated case by Downs DCJ which raises five matters on which Downs DCJ is said to have erred in law: "1. In not requiring that evidence be given independently of the transcript of evidence of the ICAC hearing to prove that - (a) Thomas Edward Paul Hogan was a Councillor of the Tweed Shire Council; and (b) Michael John Ross was a public official within the meaning of Section 3 (1) of the ICAC Act 1988? 2. In finding that the evidence of the Appellant on pp 2748 and 2737 and elsewhere in the transcript was admissible to prove (a) and (b) in Question 1? 3. In finding that the only rational inference available from the facts was that there was a determination by the Commissioner as required under Section 30(2) of the Act? 4. In not finding that there was no evidence to support the offences under Section 87 of the act in respect of Michael John Ross? 5. In not finding that there was no evidence that the evidence by the Appellant was false in a material particular in each information?" 10 In the Court of Criminal Appeal on the second stated case, Smart J, who gave the principal judgment with which the other members of the Court agreed, addressing question 1, "Did I err in holding that the Crown had supplied with the appellant with proper and adequate particulars in the circumstances of the case?", and dealing first with the counts concerning Ross and then with those concerning Hogan, observed that within these two sections there was no differentiation between the material relied on as to each count. At 329 Smart J said: "As to Ross, the particulars contain a synopsis of the appellant's statements. Those on 6 September 1989 included that Michael Prince was the recipient of company memos (from Consultants Corporation (Holdings) Australia Pty Ltd) and a consultant in company projects from January 1983 to March 1985, Mr Cassell said that he met Prince at lunch in Sydney. He could not recall what Prince looked like but remembered commissioning a report from him and contacting him by telephone. He later gave a description of Prince and thus contradicted his earlier evidence. Mr Cassell denied that 'Michael Prince' was a pseudonym for someone else. On 7 September 1989, the statements on oath of Cassell included that his recollection now was that from looking at files he was able to identify some projects on which Michael Prince worked in conjunction with other consultants. Cassell on being referred to a document prepared in his office referring to 'Michael Prince or nominee silent, 13.5 per cent profit distribution nil voting' (his shareholding in the company) stated that his evidence regarding his relationship with Prince was not entirely false. Cassell confirmed that Prince did have a shareholding in the company. Cassell admitted that he knew Michael Prince by the name of Michael Ross. Cassell acknowledged that there was reference to further payments to Michael Prince in an amount representing 13.5 per cent of the total distribution. Michael Prince is described as 'Subcont Consultant'. Mr Cassell admitted that Michael was referred to as Michael Prince because he was a public official. Ross was able to give advice on departmental thinking. Cassell admitted that his earlier statements that he had lost contact with Michael Prince was part of a scheme of concealment and that Michael Ross was a lifelong friend. Cassell admitted that when he described Michael Prince as a contractor engaged by Dr Munro he knew it was false. He admitted that the decision to include Prince as a shareholder was made by September 1982 and after discussion with Vince and Tom Hogan. Cassell admitted that he asked Ross to join Consultants Corporation and made the agreement with him. Cassell thought that he made the suggestion to use a name other than Michael Ross because of the sensitivity of the situation. Cassell said that he knew it was improper and possibly dishonest for a public official to be working for a private development consultant company. Cassell admitted Ross was to get shares from the consultancy business but because his involvement was improper he was to be concealed by using the name Michael Prince. Cassell admitted that Ross had supplied information of commercial advantage. There was evidence of confidential ministerial documents being faxed by Ross to Cassell. Unexplained, that material is capable of establishing the offences alleged." 11 Dealing with the counts concerning Hogan Smart J said at 329-330: "As to Hogan, the particulars contain a synopsis of the appellant's statements. Those on 6 September 1989 included that Vincent Hogan had a 40 per cent shareholding in Consultants Corporation (Holdings) Pty Ltd, was a director and introduced several projects to the company. Payments to Vince Hogan were consultancy expenses and director's expenses as a working director but most payments were to him as a shareholder by way of end of year distribution. Cassell denied any business or professional dealings with Councillor Tom Hogan and said that he was not involved in any project with him or any dealings other than on the Industrial Development Board. Cassell claimed that any dealings with Tom Hogan were entirely personal, social and quasi political. Cassell said that payments of over $4,000 were made by Consultants Corporation to Tom Hogan between July 1983 and June 1986. Some payments were contributions to Hogan's political campaign. Payments to Tom Hogan would benefit the company's business and be an expense to goodwill. There was payment to T Hogan as expenses for introducing people for the purpose of Cassell's business. Cassell confirmed that there was no business relationship with Tom Hogan. Those business documents of Cassell sent to Thomas Edward Paul Hogan were for transmission to Vince Hogan who was on holidays. Cassell denied that memos were sent to Tom Hogan because he was involved in business deals with Cassell. Cassell denied that Tom Hogan had anything to do with the shareholding of Consultants Corporation and confirmed that Tom Hogan was neither a shareholder nor a director. Cassell was referred to a document containing the statement 'Vincent Hogan (anors silent)' and confirmed 'anors' referred to others. Cassell said that the reference to the silent partner is to Tom Hogan. Cassell said that Tom Hogan was to get shares from the consultancy business but because Tom Hogan was a Tweed Shire councillor his involvement had to be covered by the use of his brother Vince. Cassell stated that he was aware that part of the payment of money to Vince Hogan went to Tom Hogan. He helped in respect of matters before Tweed Shire Council by giving planning advice in relation to Merrifield and Sea Ranch projects. The company received fees from developers which formed part of the company's profits and which were distributed inter alia to Vince Hogan. Cassell confirmed that Vince was in the company to cover up for Tom Hogan. Again, this material, if unexplained, is capable of establishing that Cassell had committed the offences alleged." . 12 When Smart J came to stated case question 2(b) which was: "Did I err in holding that the informations were good in that the Crown was not required to prove the appellant's knowledge of the materiality of the particular?", his Honour observed that the claimant had submitted that materiality under s87 was a question of fact and not a question of law to be decided by the Judge. The Crown contended that materiality was a question of law to be decided by the Judge. It was common ground that if materiality was a question of law for the Judge, the Crown did not have to prove that the claimant knew that the matter on which he gave false evidence was material. 13 At 334 his Honour said that he was of the view that the question of materiality in a prosecution under s87 was one of law but that, if he were wrong in that view, he would hold as a matter of the construction of s87 and taking the objects of the Act into account that the Crown did not have to prove that the accused knew that he was making statements on material matters. 14 The matter on which special leave was granted to appeal to the High Court concerned the question whether Downs DCJ erred in holding that the evidence before him was sufficient to prove that there had been a valid hearing by the ICAC under the Act in which evidence had been given by the claimant sufficient to support a conviction for an offence under s87 of the Act. 15 In the High Court the majority said at 538 para [22]: "The inference that the Assistant Commissioner was conducting the hearing because the Commissioner had determined that he should do so was clearly available."

16 It seems to be accepted that the first three of the questions in the document that has been handed up were questions that his Honour Downs DCJ was asked to state to the Court of Criminal Appeal. Questions 4 and 5 do not fall within that category. However, that problem, if it be a problem, can be put aside for present purposes. 17 Subject to one matter to which I will return in a moment it is abundantly plain from a reading of the passages that I have quoted from the judgment of Smart J in the Court of Criminal Appeal and the judgment of the majority of the High Court that the matters now sought to be raised were part of the material taken into account in those Courts in coming to the conclusions that the Courts did on the questions in the stated case before them. In other words, what is being sought by the questions now proposed is to re-argue matters which have already been decided unfavourably to the claimant. 18 It was submitted by counsel for the claimant that the questions were not questions that were put in the previous stated case. However that may be, they were questions which raise matters decided in the Court of Criminal Appeal and the High Court. 19 The other matter for separate consideration is in question 3, whether Downs DCJ erred in finding that the only rational inference available from the facts was that there was a determination by the Commissioner as required under s30(2) of the Act. 20 In the course of his reasons for judgment on 24 May 2000, Downs DCJ referred to a submission that he could not be satisfied to the necessary degree that there was a hearing before the Commission. His Honour referred to the judgment in the High Court setting out the whole of the penultimate paragraph of the majority judgment of which I quoted the last sentence and said: "Not only was it clearly available but in the absence of any evidence to the contrary it was the only rational inference which I could draw from the facts. Consequently, I am satisfied to the necessary degree that there was a hearing before the Commission."

21 Counsel for the claimant submitted that there was another inference open based on the failure of the Crown to call evidence that demonstrated the fact in issue. Reference was made to Jones v Dunkel (1950) 101 CLR 298. However, what his Honour was engaged in, as the passage I have quoted demonstrates, is a fact finding exercise. The High Court had held that the inference was clearly available. His Honour was satisfied that the fact was proved beyond reasonable doubt. Accordingly, in my view, question 3 in the stated case to the extent to which it goes beyond what has already been decided in the Court of Criminal Appeal and the High Court goes, not to a question of law, but to a question of fact and is not open to be raised under s5B. 22 In light of some of the written submissions and some of the oral submissions, in regard to the consequence of a finding of a prima facie case I refer to what was said by the High Court in May v O'Sullivan (1955) 92 CLR 654 at 658: "When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a 'case to answer' has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact." 23 In my opinion the application should be dismissed. 24 HANDLEY JA: I agree. 25 FOSTER AJA: I likewise agree. 26 HANDLEY JA: The Court's order is summons dismissed with costs.

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