Court of Appeal (WA)|2004-05-10|Before: Mr J, Barker J

Clark v The Queen [2004] WASCA 91 (10 May 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CLARK -v- THE QUEEN [2004] WASCA 91

Bail application - Appeals pending - Bail Act 1982 (WA) - Clause 4, Pt C, Sch 1 Bail Act - "Exceptional reasons"

Respondent : Commonwealth Director of Public Prosecutions

Corporate Affairs Commission v Papoulias (1990) 20 NSWLR 503

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Eastley v The Queen [2001] WASCA 227

In re Smith & Fawcett Ltd [1942] Ch 304

R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738

R v Kamleh [2003] SASC 269

1 BARKER J: On 25 March 2004, the appellant Clark was convicted after trial in the District Court of six offences involving conduct in contravention of the provisions of s 232(6) of the Corporations Law of Western Australia as taken to be included in the Corporations Act 2001 (Cth) by s 1401 of that Act by knowingly making improper use of his position as an officer of Hallmark Gold NL, dishonestly and intending to gain, directly or indirectly, an advantage for Davis Samuel Pty Ltd in a number of respects which do not at this point require elaboration. The appellant Clark was sentenced to a term of imprisonment of 18 months on each count to be served concurrently and was ordered to be released after 9 months upon entering into a recognizance.

2 On the same date, the appellant Forge, who was tried jointly with Clark, was convicted of nine offences of like nature. He was sentenced to a term of imprisonment of 21/2 years concurrently on all counts to be released after 12 months upon entering into a recognizance release for the period in the sum of $10,000.

3 Each appellant has appealed against conviction and sentence.

4 It is accepted by each appellant and the respondent that the appeals are most likely to be heard on the present hearing schedule of this Court in August this year, that is to say, some three months from now. Each appellant now seeks bail pending the hearing of the appeal.

5 Each appellant says that this is an appropriate case in which to grant bail, for two reasons:

1. That if the appeal is not heard until August 2004, the appellant will have served, a substantial period of the term of imprisonment imposed on him, in addition to which there may be an additional period during which the judgment of the Court may be reserved and the appellant will suffer irreparable prejudice in the event that his appeal is successful and he is not granted bail pending his appeal.

2. The majority of the grounds of appeal against conviction are likely to succeed.

6 It is well understood that the application for bail must be dealt with in accordance with cl 4 of Pt C of Sch 1 of the Bail Act 1982 (WA). Thus, the Court may only grant bail to the appellant if it is satisfied that there are exceptional reasons why the appellant should not be kept in custody and the Court is satisfied that it is proper to grant bail, having regard to the provisions of cls 1 and 3.

7 I should observe immediately that, so far as each appellant is concerned, there is nothing to suggest that, by reason of the principles governing grant or refusal of bail referred to in cls 1 and 3, bail should be refused in this particular case. From the date upon which each appellant was first charged with the offences the subject of the indictment, he was on bail and at all times complied with the terms of bail. Counsel for the respondent did not suggest either was a flight risk. The question therefore is whether there are exceptional reasons why the appellant should not be kept in custody.

8 While the exceptional reasons consideration as set out in the Act does not specify particular criteria the Court should regard in exercising its discretion, it is often stated that exceptional reasons may include such reasons as:

1. The appellant has a strongly arguable case on appeal.

2. The appellant's liberty is required for instruction of solicitors in complicated civil proceedings.

3. The appellant's personal circumstances and history while on bail indicate there can be little risk of his not appearing.

4. There is a risk that a substantial part of the non-parole period of sentence will have been served before the appeal comes on for hearing.

: see for example Caratti v R [1999] WASCA 91 at [6] per Miller J.

9 Indeed, it has been held in a number of cases that in a case where a substantial portion of a custodial part of a sentence will be served before an appeal is disposed of that fact alone can be a proper basis for a Court granting bail: see, for example, R v Bernt (1994) 70 A Crim R 1 (Scott J); Tran v R, unreported; SCt of WA (Scott J); Library No 990117; 11 March 1999 and Caratti v R (supra) at [7].

10 Where the question of the prospects of success of the appeal are raised as an exceptional reason, it is generally accepted that the appellant must show something more than a merely arguable ground of appeal or a ground that has a reasonable prospect of success. Rather, it is suggested it must be shown, without detailed argument, that the appeal is most likely to succeed; that there are strong prospects of success: see Stalker v The Queen [2002] WASCA 364 at [40] per Roberts-Smith J, where this test was stated following a careful consideration of relevant authority in this State and elsewhere.

11 In Stalker, Roberts-Smith J considered a number of decisions not only of this State but also of the High Court and other State courts in coming to his considered view. These included Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514 where Brennan J at 519 - 520 suggested that to grant bail pending an appeal from a conviction is to whittle away from the finality of the jury's verdict and to invest it with a provisional quality thus attacking the central feature in the administration of criminal justice. For these reasons, the common law required an appellant to demonstrate special or exceptional circumstances in order to obtain bail pending his appeal. It is that requirement which is, of course, now enshrined in the Bail Act 1982.

12 In United Mexican States v Cabal [2001] HCA 60; (2001) 183 ALR 645, Mr Cabal was made the subject of a committal to prison following a request for his extradition to Mexico. He sought bail and was refused. Ultimately, the matter came before the High Court. Gleeson CJ, McHugh and Gummow JJ in a joint judgment dealt with the power of the Court to give bail in criminal cases. Their Honours stated at [39] as follows:

"In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in Ex parte Maher [1986] 1 Qd R 303 at 310, to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned:

• makes the conviction appear contingent until confirmed;

• places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;

• undermines respect for the judicial system in having a "recently sentenced man walking free";

• undermines the public interest in having convicted persons serve their sentences as soon as is practicable."

13 Their Honours noted, at [40], that as a consequence, the doctrine of the Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances. In so stating, their Honours referred to a number of authorities, including Robinson v R (1991) 65 ALJR 519 as well as Caratti v R (supra).

14 Their Honours then indicated at [41] that the history of decisions of the Court shows that ordinarily it will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. Second, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined.

15 Their Honours pointed out that, because in the High Court an application for bail will only be considered where an appellate court has already considered the case, the occasions on which the Court will grant bail will be rare: at [42] and Peters v R (1996) 71 ALJR 309 at 310 per Dawson J.

16 While to some extent it may be said that the joint judgment sets these two conditions on the understanding that an appellate court will have considered a case before an application for bail is heard in the High Court, it is also plain enough, having regard to the authorities referred to in the joint judgment, that the same conditions should be considered generally relevant to the consideration of the Court under the Bail Act 1982 before deciding that exceptional reasons exist to justify the grant of bail, as Roberts-Smith J suggested in Stalker (supra).

17 In this case, while it is true to say that if Mr Clark's appeal were to be heard in August, one-half of the fixed period of imprisonment would have expired by the time of the hearing, and in Mr Forge's case, a little less than half of the fixed period would have expired, it is also recognised by counsel for each appellant that if the appeals were to be expedited, there is a prospect they may be heard earlier than August, thus ameliorating to some extent the prejudice each appellant might suffer if his appeal were to be successful and he not be granted bail at this point.

18 In this case, I do not consider that the risk that a substantial part of the period of the sentence of imprisonment will be served is sufficient, on its own, especially given the prospect of expedition of the hearing, to justify the granting of bail. The prospects of success of each appeal must also be considered.

19 However, if it can be demonstrated that the prospects of success of the appeal are strong, then I consider each would be an appropriate case in which to conclude exceptional reasons have been made out sufficient to justify the grant of bail.

20 I turn, then, to the question of the prospects of success of each appeal.

21 As counsel for each appellant says, the majority of the grounds of appeal, and indeed the only ones I consider relevant for the purposes of this application, pertain to the contention that the learned trial Judge erred in admitting into evidence and leaving to the jury evidence of an alleged enterprise between three persons (Endresz, Muir and Cain) of which the Crown alleged that each appellant subsequently joined. The evidence in question was that given by the witnesses McCartney and Yannopoulos.

22 Counsel for each appellant drew attention to what the Crown prosecutor said in opening the trial (at transcript 71) to the following effect:

"A great deal of the evidence that you will hear in this case will relate to things that were said or done prior to 23 October. Indeed, much of it may relate to things on occasion done or said by Endresz or Cain or Muir in the absence of either Forge or Clark. The relevant of this evidence, the Crown says, will be to show the character of the enterprise that we say Forge and Clark joined, to show the nature of the plan and that it was truly as we assert designed to achieve a benefit for others."

23 To put the matter shortly, the evidence against Clark was that he was appointed a director of Hallmark Gold NL on 22 October 1998 and then participated in a telephone meeting of directors on 23 October 1998 at which the resolutions the subject of the charges preferred against the appellant were dealt with. He was not said to be and there was no evidence to show that the appellant was a party to the earlier enterprise alleged to have been pursued by Endresz, Cain and Muir.

24 Counsel for Clark says (and for the purposes of this application this was not in issue) that the state of the evidence at trial was as follows:

(2) There was no mention of Clark by two witnesses McCartney or Yannopoulos who gave evidence of conversations well prior to 23 October 1998 with Endresz, Muir and/or Cain.

(3) The evidence was that interests associated with Endresz, Muir and Cain took a controlling interest in Hallmark in late September 1998 at which time Clark was not a director of nor contemplated to be in the future a director of Hallmark.

(4) The first occasion upon which there was any evidence that Clark was contemplated to be a director of Hallmark was on 22 October 1998 and he was invited to be a member of the board as a result of the sudden and unexpected resignation from the board of Hallmark of a director named Adrian Corp.

(5) There was no evidence that Endresz, Muir or Cain, or any person on their behalf, had any discussion with Clark at any time with respect to the enterprise alleged by the Crown.

(6) There was no evidence from any person either in Clark's absence or otherwise in which the appellant was named as a participant in the enterprise.

(a) was appointed to the board of Hallmark late in the morning (Sydney time) on 23 October 1998;

(b) was made aware of the resolutions which were proposed to be put at the Hallmark meeting during the course of that day;

(c) was in Albury, New South Wales, when the Hallmark meeting took place in Perth in the early evening Perth time and joined by telephone;

(d) voted in favour of the resolutions which were proposed;

(e) there was no evidence that the appellant was aware of any disharmony between members or former members of the Hallmark board with respect to the business the subject of the resolutions and no evidence that any person indicated to the appellant that there was any opposition to those resolutions being passed then or earlier.

25 The evidence concerning the involvement of Mr Forge in the affairs of Hallmark was more extensive than that concerning Clark. He was involved earlier and, on the face of it, in a more extensive way than Mr Clark. He was also a director of CTC, which held shares and options in the company Kanowna Lights NL. There was evidence that, as of 24 September, Mr Forge was award of the Davis Samuel retainer agreement in a earlier draft than that ultimately executed. Other evidence led to the contention of the Crown that Mr Forge was appointed as an associate of Endresz and Cain. Mr Forge was also a director of Hallmark when Mr Corp, still a director, raised concerns concerning the proposed resolutions that were ultimately passed on 23 October.

26 Counsel for each appellant says the learned trial Judge:

(1) Allowed evidence of the enterprise to be led over objection.

(2) Left to the jury the evidence of the enterprise and the issue as to whether the appellant as a participant in that enterprise voted in favour of the resolutions and subsequently executed documentation in furtherance thereof.

27 The appellants say the learned trial Judge was wrong to allow any evidence of the enterprise to be led and to leave that evidence to the jury and relies on well-known authorities to that effect in Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 and Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1.

28 Counsel for each appellant contends that Ahern and Tripodi are authorities for the proposition that acts done or words uttered otherwise in the presence of an accused by a person (in this case) alleged to be part of an enterprise will only be admissible to prove the participation of the accused in the enterprise where it is established:

(1) That there was a combination of the type alleged.

(2) That the acts were done or the words were uttered by a participant in the furtherance of its common purpose.

(3) That there is reasonable evidence, apart from the acts or words, that the accused was a participant (see Ahern at 100).

29 Thus, each appellant contends that, in his case, there was no act done or words spoken by Endresz, Muir or Cain which made any reference to him or pointed to him and there was no evidence that he was at any time a participant in the enterprise of those persons, if such an enterprise were made out.

30 Counsel for each appellant thus says that, before evidence of the prior independent acts of Endresz, Muir or Cain can be admissible against him, there must be real independent evidence connecting the appellant to those men in the enterprise, that is, evidence that the appellant was a party to it. In this regard, counsel relies on what was said in Ahern (supra) at 95:

"That is where the dilemma lies in cases of conspiracy because, to assume the participation of the latter in order to admit the evidence on the basis of implied authority is to assume the very fact which is sought to be proved by that evidence."

Counsel also refers to what the Court said in Ahern at 95:

" ... if there were no prerequisites to the admission of such evidence hearsay would lift itself by its own bootstraps to the level of competent evidence."

31 Counsel for each appellant says that if the evidence relating to the enterprise were excluded from the jury's consideration, then the jury would only have been able to consider whether the evidence relating to the appellant and his involvement in relation to the resolutions as of 23 October 1998, would have been available and that that evidence was insufficient to justify the conviction.

32 Counsel for each appellant says the Crown's case was that the decision to pass the resolutions was entirely uncommercial and that from the very act of the making of the resolutions, when considered with other facts, the elements of the offences against the appellant could be made out.

33 However, counsel for Clark says that a number of other reasonable inferences would have been open on such evidence, such as (at least) the naivety of the appellant, the carelessness of the appellant, each falling short of dishonesty and consistent with innocence. Counsel for Forge also suggests the bare facts, absent the enterprise evidence, raised inferences consistent with innocence. In other words, it is said if the evidence of the enterprise were excluded from the jury's consideration, then in a circumstantial case such as that before the Court, depending on the proper inferences to be drawn, an acquittal should have resulted, given that inferences consistent with innocence were or should have been available.

34 In short, counsel for each appellant says the trial was irretrievably tainted by the admission into evidence of the enterprise and there was an inevitable miscarriage of justice.

35 Senior Counsel for the respondent (who was also the Crown prosecutor at trial) appeared on behalf of the respondent to oppose the granting of bail.

36 In relation to the appellant's submission that there were strong prospects of success in the appeal in relation to the ground concerning the enterprise evidence, Senior Counsel submitted that the appellant's case and submissions misrepresented the way in which the Crown presented its case and adduced the evidence in question.

37 Senior Counsel for the respondent was at pains to make plain that the Crown did not allege or seek to use the evidence concerning the enterprise of Endresz, Muir and Cain to promote that they acted with the implied authority of the appellant. Rather, Senior Counsel said that the Crown's case was that each appellant, at a certain point prior to the 23 October meeting joined the enterprise of these others. Thus, he contended, the Crown never sought to use the enterprise evidence as "pre-concert" evidence, but merely to explain the nature of that enterprise.

38 In this regard, Senior Counsel for the respondent referred to R v Dinh [2000] NSWCCA 536 (14 December 2000) in which the Court ultimately ordered the joint trial of persons including Dinh and revoked an earlier order the Dinh be tried separately. The New South Wales Court of Criminal Appeal accepted the principle that, where two or more persons are engaged in a common enterprise, it is generally proper that they be tried together. At an earlier stage when a separate trial for Dinh was ordered, there was no evidentiary basis for a view that Dinh was engaged in a common enterprise with others with whom he might have been tried jointly. Subsequently, after those others had given evidence, the Crown was able to demonstrate that Dinh was engaged in a common enterprise with them. Simpson and Howie JJ at [32] acknowledged what Dunford J had stated, in the court below, to the following effect:

"It follows that the acts and declarations of the other alleged participants in the common enterprise are admissible to prove the nature of the enterprise, though not the accused's Dinh's participation in it: R v Masters (1992) 26 NSWLR 450 at 461, R v Chai (1992) 27 NSWLR 153 at 191, R v Louden (1995) 37 NSWLR 683, R v Nguyen (CCA 23 September 1998)."

Not only is the evidence admissible against Dinh on this basis, but although some of it may be excluded under sections 135 and 137, or its use limited under section 136 of the Evidence Act 1995, a lot of it will be necessary to enable the Crown to paint a complete picture of what it claims is its case against Dinh, including motive or reason for his involvement, the purchase by Tran and/or Nguyen of the weapon used in the shooting at the behest of Ngo, and with funds to which Ngo had access through the Mekong Club, the presence of Ngo in the Camry near the scene at the time of the shooting, his involvement in the relevant telephone calls on mobiles at the time, including the call by Dinh to Ngo shortly after the shooting, and Ngo's alleged subsequent disposal of the murder weapon; also the botched previous attempts explain the need to recruit another shooter. These are all surrounding circumstances which it would appear are admissible in the trial against Dinh."

39 Senior Counsel for the respondent also drew attention to what was said by King CJ in the Supreme Court (in Banco) of South Australia in The Queen v Bilick and Starke (1984) 36 SASR 321 at 331. There, the Chief Justice stated:

"I turn to Starke's appeal. A number of the grounds of appeal complain of the wrongful admission against Starke of evidence of Bilick's guilt and of the failure of the trial Judge to direct the jury properly as to the evidence which was inadmissible against Starke. I think that many of these complaints result from a misconception. The case for the prosecution was that Starke adhered in Adelaide to a criminal enterprise of trading in drugs which Bilick had undertaken in collaboration with the two women. On the case for the prosecution the four of them engaged in a common enterprise of trading in heroin. There was evidence of concert between Bilick and Starke and the women. Evidence of acts done and statements made in furtherance of the common purpose by Bilick and the women were therefore admissible against Starke. Evidence of things done and said before Starke's adhesion to the enterprise, were admissible against him for the purpose of showing the character of the enterprise to which he adhered."

40 However, to understand fully the relevance of this statement by the Chief Justice, it is helpful also to note what his Honour then further stated at 331 - 332:

"The case for the prosecution against Bilick was that Bilick was trading in heroin in Adelaide and that there was sufficient evidence of association with and collaboration with Bilick by Starke to justify the conclusion that Starke was a participant in the trading. There were therefore two major steps in the process of reasoning by which the prosecution sought to prove the case against Starke; the first was the proof that Bilick was engaged in trading and the second was the evidence of Starke's association and collaboration with him. All evidence which tended to prove that Bilick was engaged in trading in heroin was therefore admissible against Starke as well as against Bilick, unless its admissible would infringe a particular rule of exclusion. The evidence of Karen James and of another witness, Koning, as well as the evidence of the articles found in the motel room and grounds and in Bilick's car, was therefore admissible either as indicative of the character of the enterprise to which Starke adhered, or as evidence of things done or used in furtherance of the joint enterprise. This disposes of a number of the grounds of appeal."

41 Senior Counsel for the respondent therefore contended that the enterprise evidence was admitted by the learned trial Judge, and properly so, for the limited purpose of identifying the nature of the enterprise entered upon by Endresz, Muir and Cain which the appellant later joined.

42 Senior Counsel for the respondent drew the attention of the Court to some of the other evidence directly concerning each appellant which was before the jury to support a finding that the appellant acted dishonestly and in other respects that satisfied the elements of the relevant offences when he participated as a director of Hallmark in passing the resolutions on 23 October 1998. In respect of all this evidence, Senior Counsel submitted that, on its own, the conduct of each appellant, in all the circumstances, in authorising the taking-up of options, purchase of shares and related resolutions was so far outside normal commercial practice that it was plainly open to the jury to find each appellant joined or participated in the enterprise of the other three named persons.

43 I note that at the trial Senior Counsel, in submissions (transcript 126 - 128) to the learned trial Judge, submitted:

"There was an enterprise between Endresz and Cain and Muir. Forge may have joined it at some stage and Clark joined it at some stage. We say it's quite clear that there must have been an enterprise as at 23 October because it's the only explanation for what was achieved on that day but as to when they joined it we don't know and that's the point that is made I think by my friend Mr Glisson and indeed by Mr Davies that there's no enterprise as at the time that these - as regards these two accused and I accept that that may well be the case but that's not why we are leading it.

We are leading it to show what the nature of the enterprise that they ultimately joined was because the acts of Muir and Cain and Endresz and the things that they say show the nature of what it was that they were trying to achieve ...

We say that's material because that shows that they had an objective to get control of the company for, we would say, the purpose of passing the resolutions that were passed on 23 October to extract the money from the company. If the jury doesn't hear what Muir and Cain and Endresz say at this meeting, and indeed on other occasions prior to 23 October the actions on 23 October may seem inexplicable, other than by a dishonest common purpose, that the actual content of the enterprise would not be clear to them. The content is explained, the nature of the enterprise is explained by these actions."

Then Senior Counsel referred the learned trial Judge to Dinh (supra) and the passages to which I have already referred. Senior Counsel for the respondent then concluded his submission, at transcript 129, to the learned trial Judge by saying:

"That's what the Crown says is the situation here. Mr Clark in all probability joined this common enterprise at a very late stage and we say that was in all likelihood because the others, Corp and Bunting, resigned and left the enterprise with the problem that there was only going to be two directors they needed to recruit another one. But the nature of the enterprise he was joining is explained and revealed by this evidence of what Muir, Endresz and Cain did beforehand."

44 There is, on one view, a difficulty with this submission of Senior Counsel for the respondent. One can readily understand, as in the case of Bilick (supra), that where the case for the prosecution is that the accused "adhered" to a criminal enterprise which another had undertaken in collaboration with others at an earlier stage, evidence going to that earlier criminal enterprise may be admitted "for the purpose of showing the character of the enterprise" to which he adhered. But at all times there needs to be evidence which can support the finding that the accused adhered to that earlier common enterprise. If there is not, then there must be a serious risk that evidence as to the earlier enterprise may result in a finding that the other evidence against the accused is given a significance it does not deserve.

45 Senior Counsel directly put it to the learned trial Judge that enterprise evidence was admissible and important because the jury was entitled to know about the nature of the enterprise that the appellant was joining. The question is whether there was evidence to support the case that the appellant joined or adhered to some earlier common enterprise and whether the jury understood the relevance of the enterprise evidence and the use it could be put to.

46 If there were an enterprise, it was a generally stated one. The evidence of McCartney and Yannopoulos suggested that Endresz, Muir and Cain were prepared to use the assets of Hallmark to achieve other impermissible ends, even though the particular proposal discussed with McCartney and Yannopoulos was not, in fact, effectuated. Senior Counsel for the respondent says that this evidence, however, showed that Endresz, Muir and Cain were prepared to act in a particular way and were, indeed, engaged on an enterprise to strip Hallmark of its assets by one means or another.

47 However that may be, the question remains in relation to the appellant whether they, on the evidence, could be shown to have joined that enterprise, at some point.

48 It is one thing to say, as Senior Counsel for the respondent did, that the evidence of the involvement of each appellant on its own was sufficient to justify the conviction on each of the offences; it is another to establish that, by his acts or words prior to the meeting on 23 October, each thereby joined or adhered to an enterprise or one or other of those other persons.

49 In that regard, counsel for each appellant says that the independent evidence upon which the Crown relied that the appellant was a participant in the enterprise was that that was the only reasonable inference to draw because the appellant supported the resolutions and put into effect what were said, by the Crown prosecutor, to be "ludicrously" uncommercial transactions. Counsel submits that it must be the case that it is not open to use the evidence of the appellant's acts in voting for the resolutions and executing the documentation as independent evidence of the joinder by the appellant to that enterprise. To do so assumes guilt.

50 In my view, the submission of counsel for each appellant is arguable. It is reasonable to submit that, to the extent that it has been laid out before me, the conduct of each appellant prior to and on 23 October can support various inferences, including inferences consistent with innocence. If that is the case, then the only way that position can be altered is by the introduction of evidence, which does not involve or implicate the appellant in any way, of what other directors of Hallmark or persons associated with it had planned - that is to say, the introduction of the enterprise evidence. If the only role the enterprise evidence could play is to help the jury determine the dishonesty or otherwise of the appellant in passing the resolutions on 23 October, then, in my view, it would be strongly arguable that that evidence has not been admitted and used for the limited purpose of showing the character of the common enterprise which the appellant has otherwise been shown to have adhered to.

51 In my view, the distinction to be drawn becomes evidence on closer examination of Bilick (supra). The reason why the Court allowed the evidence of the earlier common enterprise in for the purpose of showing the character of the enterprise against Starke, was because there was evidence to show that he had adhered to that earlier common enterprise. In the passage quoted above from 332, King CJ emphasised that Bilick was trading in heroin in Adelaide and that there was sufficient evidence of association with and collaboration with Bilick by Starke to justify the conclusion that Starke was a participant in the trading. There were therefore two major steps in the process of reasoning by which the prosecution sought to prove the case against Starke: the first was the proof that Bilick was engaged in trading and the second was the evidence of Starke's association and collaboration with him. Thus, evidence as to the earlier common enterprise was relevant to show the character of the enterprise Starke joined in.

52 The question of evidence going to the apparent enterprise agreed upon by Endresz, Cain and Muir was objected to by counsel for the appellants at various stages during the trial. For example, at transcript 123, counsel for Mr Clark objected to the reception of evidence to be given by Mr Smart concerning a meeting involving Endresz, Cain, Muir and himself. The Crown prosecutor then made it clear to the Judge in the absence of the jury (at transcript 125) that the Crown proposed to lead such evidence not as evidence of the adhesion of the accused to the pre-concert or the common purpose at that stage, but to explain the nature of it. That was said to be a recognised exception to the hearsay rule. It was further contended by the Crown prosecutor (at transcript 126 - 127) that:

"There must have been an enterprise as at 23 October because it's the only explanation for what was achieved on that day but as to when they (Clark and Forge) joined it we don't know and that's the point that is made ... that there's no enterprise as at the time that these - as regards these two accused and I accept that that may well be the case but that's not why we are leading it. ... we're leading it to show what the nature of the enterprise that they ultimately joined was ... ."

53 Then, later, a no case submission was made and the relevance of the so-called enterprise evidence was again raised. The Crown prosecutor, at transcript 659 - 660, noted that:

"Whilst we say that the enterprise was in existence in a broader sense from at least early September the evidence cannot establish that the accused were parties to it until some time later. That has always been the Crown's position. The acts of other parties, however, can be admissible - well, firstly I should say the acts of other parties are only admissible on the Ahern principle on what in effect is an implied agency basis only after they have joined.

So we don't say the acts before 23 October are admissible because the two accused were parties to a joint enterprise at an earlier stage. What we do say of course is that rather the earlier acts are admissible to show the nature or character of the enterprise which the accused ultimately joined and that of course in reliance on cases of Bilick and Dinh ... ."

54 After hearing extensive submissions concerning that evidentiary point which was closely related to the no case submission, the learned trial Judge made his ruling in the absence of the jury at transcript 708 - 711. He noted, at 708, that the evidence in question was "led to prove the nature of the enterprise". His Honour expressly noted that:

"Matters prior to 23 October 1998 are led on the basis that the Crown case that there was a joint enterprise to take control of Hallmark Gold NL to extract cash from it and that the accused men each later joined that enterprise."

55 At transcript 710, the learned trial Judge, having summarised and referred to salient aspects of the evidence stated:

"I am satisfied that the evidence I have summarised that there is reasonable evidence that from the acts of each Mr Forde and Mr Clark that they were participants in a joint enterprise to take control of Hallmark and force it to pay out money."

56 At transcript 710, the learned trial Judge added:

"In relation to pre 23 October 1998 evidence and to the submission of no case to answer I am satisfied that taking the Crown case at its highest the jury could make the necessary findings and inferences to convict the accused men. I therefore dismiss the defence application."

57 In the course of summarising the evidence, the learned trial Judge, at transcript 710, noted that the evidence established that on 14 September 1998 Endresz, Cain and Muir met Yannopoulos and that Endresz, Cain and Muir were taking control of Hallmark and securing it entering into expensive long-term management contracts. He also noted the meeting of 15 September 1998 involving Endresz, Muir, Cain and Smart and Corp.

58 Having regard to his Honour's comment at transcript 708 that the pre-23 October 1998 evidence could be led to prove the "nature of the enterprise", it may be assumed for present purposes that the learned trial Judge did not intend to allow the so-called enterprise evidence to be used for any less limited purpose. However, the fact that the learned trial Judge also referred to some of that enterprise evidence in his summary of the offences in an apparently non-limited way may tend to cast some doubt on that assumption.

59 Ultimately, the evidence objected to by counsel for the appellants was before the jury. The question is whether, in the summing up of the learned trial Judge, he made it clear to the jury that the so-called enterprise evidence which had been objected to and which the Crown prosecutor said could and would only be used for a limited purpose, was the subject of a direction that it should only be used for the limited purpose of assessing the character or nature of the enterprise, if the accused were found to have joined that enterprise; but not for the purpose of deciding if they in fact joined.

60 In the summing up at transcript 970, the jury was told that the Crown case on count 1, and on very count, was that each of Mr Forge and Mr Clark acted dishonestly because each of them acted consciously following a plan by Endresz, Cain and Muir, which plan Forge and Clark had joined, which was a plan to take control of Hallmark and force it to pay out moneys that it had.

61 While the learned trial Judge told the jury that each of Forge and Clark say that if there were any such agreements or plan, they knew nothing of it, they were also told it was for them to decide whether the Crown had proved beyond a reasonable doubt that each man was party to the alleged plan and was acting consciously following that plan. There does not, however, appear at that point to have been a direction concerning the so-called enterprise evidence which was adduced for a limited purpose, to the effect that it could only be used to assess the character and nature of any plan once it had been determined that the accused had, in fact, each determined to adhere to a plan. On the face of it, there was a risk that the jury might take the enterprise evidence into account in determining whether each of the accused had, in fact, decided to join that plan, as the Crown case alleged.

62 At transcript 985 in the summing up, the learned trial Judge pointed out that the Crown prosecutor submitted that the prior events strongly indicate that Endresz, Muir and Cain's plan was to get control of Hallmark to get it to pay money to Davis Samuel and its associates and that he had submitted that the speed of events on 23 October showed that Mr Forge and Mr Clark did not honestly consider the interests of Hallmark. There is again, in my view, an argument that no clear direction was given to the jury concerning the relevance of the enterprise evidence.

63 Again, at transcript 987 - 988, in the summing up the learned trial Judge referred to evidence, including matters such as evidence of a meeting on 14 September at the house of Mr Yannopoulos which was attended by Muir, Endresz and Cain, and the evidence of a meeting on 15 September in Sydney attended by Muir, Endresz, Cain and Mr Corp and Mr Smart. He told the jury that the Crown case is not that either Mr Forge nor Mr Clark knew of those meetings at the time they took place. The Crown case "is that Mr Endresz, Mr Muir and Mr Cain had joined together to take control of Hallmark Gold to force the company to pass resolutions to take money out of the company, and that Mr Forge and Mr Clark joined in that plan later."

64 However, for the first time, at transcript 988, the learned trial Judge then did direct the jury on the critical point:

"That means that the evidence of what occurred at those early stages could only be used by you for a limited purpose. The Crown led the evidence to seek to prove that there was a common plan by Mr Endresz, Mr Muir and Mr Cain to take control of Hallmark for that purpose. The evidence can be considered by you to decide whether the Crown has proved that there was a common plan by Mr Endresz, Mr Muir and Mr Cain that the Crown alleges. That evidence cannot be used by you as evidence that either Mr Forge or Mr Clark joined that common plan."

65 In the light of this direction, I am not satisfied that there is a strong case that the enterprise evidence was put before the jury for an impermissible purpose. From the very outset of the trial, and at various junctures throughout it, the Crown prosecutor made it clear that he sought to lead the enterprise evidence for the limited purpose of establishing the character and nature of an enterprise earlier entered upon which the accused later joined. The trial Judge gave a specific direction to that effect at transcript 988.

66 I recognise that the question whether the limited use to which that enterprise evidence could be put was adequately put to by the jury, having regard to the manner in which the learned trial Judge directed them generally as to the evidence and the particular context in which he gave the direction I have quoted at transcript 988, is arguable. The distinction between finding the accused joined a plan and the purpose of that plan, arguably was not adequately adumbrated in the directions to the jury. It is arguable that the jury may not have understood that the enterprise evidence only became relevant if they found, on other evidence, the accused had joined "the plan".

67 Nonetheless, in the circumstances, I am not satisfied, in light of the Judge's direction, that this ground is strongly arguable and that either appellant has made out exceptional reasons why bail should be granted on this occasion.

68 However, having regard to the likely length of the terms of imprisonment imposed on each appellant and the time that each will have spent in custody if these appeals come on for hearing in August 2004, I consider it appropriate to order expedition of the hearing of each appeal.

Clark v The Queen [2004] WASCA 91

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Judgment (127 paragraphs)

Clark v The Queen [2004] WASCA 91 (10 May 2004)

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Cases Cited (16)