Dailakis v The Queen [2018] VSCA 101

Court of Appeal (Vic)|2018-04-24|Before: Mr J, Kaye JA, Niall JA, Hargrave JA

DPP v Dailakis (Unreported, County Court of Victoria,

CRIMINAL LAW - Appeal - Conviction - Appellant convicted of 38 charges of theft - Prosecution alleged joint criminal enterprise involving appellant and co-accused - Judge directed jury necessary to find common verdict for Appellant and co-accused - Whether direction erroneous - Whether substantial miscarriage of justice - No substantial miscarriage of justice - Appeal dismissed - Criminal Procedure Act 2009

1 The appellant, together with his co-accused, Timothy Brosnan ('Brosnan'), was jointly charged on the one indictment with 38 counts of theft of moneys, totalling $1,822,783.53, from MCA Insurance Brokers ('MCA') between 10 August 2010 and 5 October 2011. It was alleged that the appellant and Brosnan committed the thefts pursuant to a joint criminal enterprise between them. In addition, Brosnan was also charged, on the same indictment, with four further counts of theft from MCA Insurance Brokers in the same time period, totalling an additional sum of $87,363.39.

2 After a trial in the County Court, the jury convicted the appellant and Brosnan on each of the charges brought against them. The judge sentenced the appellant to a total term of seven years' and seven months' imprisonment, with a minimum non-parole period of five years and seven months. Brosnan was sentenced to a term of eight years' imprisonment, with a minimum non-parole period of six years.

3 The appellant, by leave of a single judge of this Court, appeals against his convictions on one ground, namely:

The conviction is unsafe in that the learned Judge erred in his direction to the jury that the jury could not find separate verdicts for the accused and the co accused (Timothy James Brosnan).

Particulars

Shortly after retiring to consider their verdict the jury returned and asked His Honour whether it was open to the jury to find that there was not a joint criminal enterprise and to find separate verdicts for each defendant, that is could one be acquitted and one convicted.

In response His Honour directed the jury that they had to find a common verdict for both defendants. His Honour directed that if they found one guilty they must find both guilty and if they found one not guilty they must find both not guilty.

4 In June 2008, Brosnan commenced employment with MCA Insurance Brokers as its financial controller and administration manager. At that time, Brosnan and the appellant were acquainted with each other. The appellant had a business entitled 'Melton Chicken Bar'. During the period of Brosnan's employment with MCA, the appellant made two insurance claims through MCA.

5 On the commencement of his employment with MCA, Brosnan established an electronic banking system with the National Australia Bank ('NAB') on behalf of MCA, the purpose of which was to enable Brosnan, on behalf of MCA, to remit payments to insurance underwriters by means of electronic funds transfer. Brosnan had the sole responsibility for the payment of premiums and other moneys to the insurance underwriters.

6 In order to initiate, or countersign, an electronic funds transfer, the NAB issued to MCA four security dongles. One of the dongles was assigned to Brosnan, one was assigned to John Christoffelsz, the proprietor of MCA, one was assigned to his son Mark Christoffelsz and one was assigned to another employee. Each dongle had its individual PIN. In order to effect an electronic funds transfer, it was necessary for a transfer to be initiated on the system by inserting the bank account number, the payee, and the amount of the payment. It was also necessary for another member of staff, to whom a dongle had been assigned, to countersign the transfer.

7 The evidence at the trial established that, in respect of each of the 42 unauthorised transfers undertaken by Brosnan (including the 38 transfers that were the subject of the charge against the appellant), Brosnan initiated the transfer, or countersigned it. On each of the 42 unauthorised electronic funds transfers, the name of the payee, inserted in the system, was a legitimate insurance underwriter commonly used by MCA. However, the bank account numbers, that were entered into the system by Brosnan, were not the bank account numbers belonging to the insurance underwriters to whom MCA was indebted. Instead, they were bank account numbers belonging, in 38 cases, to a company controlled by the appellant, and, in respect of the remaining four charges against Brosnan (which were not against the appellant), to other persons who were associated with Brosnan.

8 The frauds effected by Brosnan were revealed in early February 2012, when the proprietor of MCA, Mr John Christoffelsz, received a telephone call from a representative of one of the insurance underwriters used by MCA. Subsequent examination of the records of MCA revealed the 42 unauthorised transactions undertaken by Brosnan. It also revealed that, of those transactions, 38 deposits, totalling $1,822,783.53, were made into the account of IT Solutions Pty Ltd - the company owned and controlled by the appellant. Each of those deposits were the subject of separate charges brought against the appellant on the indictment.

9 An analysis was undertaken of each of the 38 deposits that had been made into the account of IT Solutions. The analysis revealed that shortly after the MCA funds were credited to the bank account of IT Solutions, they were transferred out of that account either on the same day or within the next few days. When that occurred, the funds were moved through other accounts controlled by the appellant, or, in some instances, they were almost immediately withdrawn in cash, or applied to clear the existing overdrawn balance on the account to which they were transferred.

10 At the trial, the prosecution contended that the movements of the funds through the accounts of the appellant demonstrated a deliberate course of conduct by the appellant that was designed to make it difficult to track the funds, and also to create a veneer of commerciality about the dealings. The prosecution tendered in evidence a table (exhibit A) that demonstrated the transfer of the funds, that are the subject of the charges, from the account of MCA to the account of IT Solutions. In addition, the prosecution also tendered a document entitled 'Summaries of Disbursements' (exhibit M), which set out, in detail, the movements of each of the 38 payments that had been made into the account of IT Solutions, after their deposit into that account.

11 The sole ground of appeal is concerned with a direction given by the judge to the jury after it had retired to consider its verdict. In order to understand the direction complained of, it is necessary to set out, briefly, the issues that were agitated at trial. I shall return to those matters later in these reasons. However, for present purposes, it is sufficient to indicate that the matters, put in issue on behalf of Brosnan, and on behalf of the appellant, fluctuated quite considerably at trial.

12 Most of the witnesses at the trial gave evidence concerning the circumstances in which Brosnan effected the 42 payments, that were the subject of the charges against him. In cross-examination by counsel for Brosnan, questions were directed to some of the witnesses suggesting that Brosnan had not, in fact, initiated a number of the payments that were the subject of the charges. I interpolate that that line of cross-examination was singularly unsuccessful. Ultimately, in final address, counsel for Brosnan's main submission was that the jury could not be satisfied that the payments, effected by Brosnan, were made dishonestly by him. It was put that Brosnan had acted with conspicuous incompetence, but not dishonestly, in acting on instructions as to who to make the payments, and to what accounts they should go. By its verdicts, the jury rejected that suggestion.

13 By contrast, in his opening submission to the jury, counsel for the appellant contended that the appellant had received the payments into his firm's account, believing that they were legitimately loaned to him. That line of defence was hardly addressed in cross-examination of witnesses, or in evidence. In final address, counsel sought to put in issue that the appellant may not have been the person who actually received the funds that had been remitted to the account of IT Solutions by Brosnan. Ultimately, after an exchange with the judge, to which I shall later refer, counsel did not press that argument, but, instead, he fell back on the submission that the prosecution had failed to prove beyond reasonable doubt each of the elements of the charges brought against his client.

14 In his final directions, the judge told the jury that, in the case of Brosnan, one element of the charges was in issue, namely, whether the prosecution had proven that Brosnan had acted dishonestly when he created and authorised the transfers of funds that were the subject of the charges against him. The judge also told the jury that in the case of the appellant, each of the elements of the charges were in issue.

15 The judge then instructed the jury on each of the elements of the charges against both Brosnan and the appellant. He stated that the first element (that the accused appropriated property belonging to another) was not in issue for Brosnan, but that it was in issue for the appellant. The judge, in that respect, stated that the prosecution alleged that each appropriation was constituted by the transfer of MCA funds into and out of the account of IT Solutions. His Honour noted that counsel for the appellant contended that the jury could not be satisfied that the appellant was the person who appropriated the funds. The judge further told the jury that the second element of the charge (intention to permanently deprive) was not in issue for Brosnan, but that it was in issue for the appellant. In particular, the judge noted that the appellant's counsel had contended that the evidence was not sufficient to make out that the appellant had the necessary intention to permanently deprive MCA of the funds. The judge stated that the third element of the charge of theft (that the accused appropriated the property dishonestly) was in issue for both Brosnan and the appellant. The judge made a comment, in respect of the contention made on behalf of the appellant relating to that element, namely, that there was no evidence of what expectation the appellant could have had in respect of the moneys that were paid into the IT Solutions account.

16 The judge then directed the jury on the elements of a joint criminal enterprise, namely, first, that there must be an agreement between the parties to commit the offence charged, secondly, that each of the parties participated in the joint criminal enterprise in some way, thirdly, that between them they performed all the acts necessary to commit the theft that was charged, and, fourthly, that the particular accused had the state of mind necessary to commit the theft at the time of entering into the agreement.

17 Having outlined those four elements, of the concept of joint criminal enterprise, to the jury, the judge then said the following:

Before you can find each accused guilty of theft by joint criminal enterprise, you must be satisfied that the prosecution has proven all of these four elements beyond reasonable doubt. ... Unless the Crown prove, in respect of those 38 counts, that there was just such an agreement of joint criminal enterprise, and each of these four elements are made out in respect to each of the 38 charges of theft, then each man will be found not guilty.

But if you were so satisfied beyond reasonable doubt that there was a joint criminal enterprise, that these four elements have been made out when you are considering the counts, then the proper verdict would be that each man is guilty, so long as the elements of theft are made out, all right? You cannot have a not guilty and a guilty because the Crown put the case on the basis of an agreement. No agreement; not guilty. Find an agreement and if the elements of theft are made out, the appropriate verdict is guilty.

18 The judge then elaborated on each of the four elements on the concept of joint criminal enterprise. Having done so, he gave the jury a break. During that break, counsel for Brosnan stated to the judge that, from the manner in which the case had been opened, she had not understood 'that the only necessary way out of the case was "all or none".' She said that she had not understood that the only possible outcome in the trial was that the two accused persons must necessarily be found not guilty or guilty. She said that Brosnan's case had focused solely on his part in the enterprise, and that one possible outcome was that he had nothing to do with it, but that there may have been some other scheme in place in which he was not involved, but which did involve the appellant.

19 The judge responded by stating that, if that were the case, it was 'lost' on him. The judge said that the prosecution case was that the two accused persons had committed the offences by way of joint criminal enterprise, so that if the enterprise was not proved, the verdict would be not guilty for each accused; but if the enterprise was proven, the verdict would be guilty for each. To that, Brosnan's counsel responded, 'I don't take it any further than that, just to point out ... that ... I hadn't understood that that was the way the case was being run'. The judge again reiterated that the case was put on the basis of the joint criminal enterprise, so that one accused could not be found guilty, while the other was found not guilty. The judge then asked counsel if there was any exception as to how he had directed the jury as to how the Crown case was put '... and how the effect of the joint criminal enterprise operates on verdicts in this case'. In response to that question, both the prosecutor, and, significantly, counsel for the appellant, each answered 'no, your Honour'.

20 The judge then resumed his charge to the jury. He directed the jury that it must consider the cases against each accused separately. Having completed his charge, and asked the jury to retire to consider its verdicts, the judge then asked counsel if there were any exceptions, to which each counsel responded 'no'.

21 Shortly after the jury had retired to consider its verdict, the jury sent a note to the judge in the following terms:

Confirmation: in the event the jury cannot find a joint criminal enterprise then a verdict of not guilty is arrived at by definition for both accused on all 38 counts.

22 The judge convened the court, and suggested to counsel that the answer to the jury question was 'yes'. The prosecutor responded 'correct', and there was no response (recorded in the transcript) by counsel for either accused. The jury then entered the court. The judge read the question to the jury, and responded as follows:

23 The judge then asked the jury to return to the jury room to further consider its verdicts. No exception was taken by any counsel to the further direction thus given by the judge to the jury. At the conclusion of that day, the judge permitted the jury to separate.

24 On the following day, during the morning, while the jury was deliberating, the judge convened court again in relation to a request by the jury to be provided with a calculator. After conferring with counsel, the judge gave the jury a direction relating to that matter. Again, counsel did not raise any exception concerning the direction given to the jury on the previous day, which is the subject of this appeal.

25 On behalf of the appellant, it is submitted that the answer given by the judge, to the question asked of him by the jury, was erroneous. In particular, it is submitted that it was open to the jury to return separate verdicts against each accused. Counsel noted, in that respect, that the question posed by the jury indicated that the jurors had considered the possibility of separate verdicts being returned by it against each accused. Counsel submitted that the direction given by the judge, that the jury must find common verdicts in respect of each accused, meant that the jury was prevented from judging the case against each accused solely on the evidence that was admissible against that accused.

26 In response, counsel for the respondent accepted that, in a case in which a joint criminal enterprise is alleged against more than one accused person, as a matter of theory, it is open to the jury to convict one of the accused, but to acquit one or more of the other accused persons. That is because the cases against each accused may be different, and may be based on different evidence admissible against each accused person. Thus, counsel conceded that, 'as a matter of legal theory', the fact, that two or more accused persons are alleged to have participated in a joint criminal enterprise, will not operate to preclude the jury from returning different verdicts in respect of each accused person. To that extent, it was accepted, there may be substance to the complaint made by the appellant. However, counsel for the respondent proceeded to submit that, if there was an error by the judge in his direction to the jury, it could not have caused any unfairness to the accused or made any difference in the result. By that submission, counsel contended that in the circumstances of the case, the direction given by the judge to the jury, that is complained of, did not result in a substantial miscarriage of justice, if it was in fact erroneous.

27 The concession made by the respondent, relating to the direction given by the judge to the jury, is well founded. In a case in which two or more persons are charged on the basis that they participated in a joint criminal enterprise to commit an offence, it is necessary that the jury assess the case against each accused separately, based on the evidence that is admissible against that accused. In those circumstances, ordinarily, it is quite feasible that a jury may be able to return different verdicts against each accused. Indeed, it is not uncommon that, in such a case, a jury may acquit one or more accused person, while convicting another or others who were allegedly parties to the same joint criminal enterprise.

28 That principle has been discussed in cases involving a charge of conspiracy to commit an offence. A case based on a joint criminal enterprise to commit a crime is, of course, significantly different to a case in which a conspiracy is charged, but in each case it is necessary that the prosecution prove an agreement between two or more persons to commit an offence. It is well established that, ordinarily, where two or more persons are tried together on a charge of a conspiracy to commit an offence, the conviction of one conspirator may stand as valid, notwithstanding that an alleged co-conspirator is acquitted.[1] Nevertheless, there may be cases where there is no material distinction between the evidence admissible against each conspirator, so that the judge may direct the jury that it should either convict, or acquit, both accused.[2] An instance of such a case was the decision of this Court in Rolls v The Queen; Sleiman v The Queen.[3] That case was quite unusual, in that the alleged conspiracy was principally established by the proof in evidence of recorded intercepted telephone conversations between each of the two accused persons. In the unusual circumstances of that case, the Court held that the trial judge was correct to instruct the jury that it had to be satisfied as to the guilt of both accused before it could find either of them guilty of the offence charged.[4]

29 In a case (such as the present case) in which two or more accused are charged with the commission of an offence, on the basis that they were joint parties to a joint criminal enterprise to commit that offence, it would be even more unusual, if not quite exceptional, for it to be correct to instruct a jury that it must either convict, or acquit, each of the accused on the charge before it. The essence of the crime of conspiracy lies in the formulation between the parties of an agreement to commit a crime. On the other hand, the liability of an accused person for a criminal offence, on the basis that the accused has been a party to a joint criminal enterprise to commit that offence, depends on the proof by the prosecution of four essential elements. They were described by this Court in McEwan v The Queen[5] as follows:

It is now settled that complicity under a joint criminal enterprise will arise if the prosecution establishes the following:

(1) That the accused has reached an agreement or understanding with one or more other persons to pursue a joint criminal enterprise that remained in existence at the time the offence was committed.

(2) That the accused participated in that joint [criminal] enterprise in some way.

(3) That in accordance with the agreement, one or more parties to the agreement performed all of the acts necessary to commit the offence charged, in the circumstances necessary for the commission of that offence.

(4) That at the time of entering into the agreement the accused had the state of mind required for the commission of the relevant offence.[6]

30 In such a case, ordinarily it would be open to a jury, on the evidence adduced before it, to convict one or more parties to an alleged joint criminal enterprise, while acquitting one or more other accused persons who are charged on the basis that they also were a party or parties to the joint criminal enterprise. In particular, notwithstanding that the prosecution might have evidence to establish the existence of the first element - the agreement between the accused persons - it might not have sufficient evidence to establish, against one of the accused, that that accused participated in the enterprise, or that that accused had the requisite state of mind at the time of entering into the agreement.

31 To that effect, Dawson J, in King v The Queen[7] stated:

Even where two persons are tried jointly upon the one charge as participants in the same degree, it does not inevitably follow that both must be convicted or both must be acquitted. ... An indictment charging two persons on the one count is both joint and several ... The evidence may be sufficient to prove the case against one accused beyond reasonable doubt, but be insufficient to prove the case against the other. In that event, the conviction of the one and the acquittal of the other involves no inconsistency. Of course, where there is no material distinction in the evidence admissible against each accused to establish an element to be proved against both, different verdicts may be inconsistent. Inconsistency appears only if the acquittal and the conviction of the other is to be accounted for by the making of different findings as to the common element.[8]

32 In the present case, the issues, agitated by each accused, altered substantially during the case. However, as the judge noted to the jury in his final directions, in the upshot, Brosnan only placed in issue one element of the charges against him, namely, that, in transmitting the funds to the account of the appellant, Brosnan had acted dishonestly. On the other hand, in the end, as the judge noted, counsel for the appellant had put in issue each of the four elements of the charges against him. It follows that, on the face of it, the direction, given by the judge to the jury, that it must either acquit both accused, or convict both of them, was erroneous. In theory, based on the elements that remained in issue between the prosecution and Brosnan on the one hand, and between the prosecution and the appellant on the other hand, it was open to the jury to acquit one of the accused, while convicting the other.

33 However, that proposition does not conclude the appeal. The critical question is whether as a result of the error contended for by the appellant, there has been a substantial miscarriage of justice, for the purposes of s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).

Whether there was a substantial miscarriage of justice: submissions

34 In relation to that issue, counsel for the appellant submitted that the question, asked by the jury, indicated that it entertained a doubt about the proof by the prosecution against one of the accused persons of the existence of the joint criminal enterprise. It was submitted that the incorrect answer, given by the judge to that question, had the potential to deprive the appellant of the opportunity of an acquittal in circumstances in which the jury might have been minded to acquit him, but to convict Brosnan. In particular, it was submitted that the direction given by the judge to the jury had the effect that the jury might not have given separate consideration to the strength of the prosecution case against the appellant.

35 In response, senior counsel for the respondent contended that the alleged error, identified by the appellant, could have caused no unfairness or substantial miscarriage of justice to the appellant. In the first place, it was contended, the judge's direction could have made no difference to the position of the appellant, because, in order that the appellant be liable, through complicity, for Brosnan's act of appropriation, it was necessary for the jury to make a finding against the appellant, of an agreement to undertake a joint criminal enterprise with Brosnan. It was submitted that such a finding of a joint criminal enterprise would result in the finding of guilt against the appellant, whereas the absence of such a finding would necessarily lead to his acquittal.

36 Secondly, it was submitted, the conviction of the appellant was inevitable. The appellant, in his counsel's opening, admitted that he had received the money transferred to the account of IT Solutions from MCA, and that he, in turn, had transferred the money out of his own account. Ultimately, his defence was that, despite those concessions, the prosecution was unable to prove its case. In those circumstances, it was submitted, the satisfaction by the jury that Brosnan had misappropriated the funds of MCA, that were paid into the appellant's account, had the effect that a verdict against the appellant was inevitable.

37 Thirdly, counsel for the respondent noted that, at trial, counsel for the appellant had taken no exception to the judge's charge, or to the manner in which the judge had responded to the jury's question. The fact that the appellant's counsel took that course, notwithstanding that Brosnan's counsel initially raised a query relating to the judge's direction, indicated that the appellant's counsel may have chosen to remain silent for tactical purposes. In particular, it was submitted, it was in the appellant's interests that the judge not distinguish between the case against Brosnan and the case against the appellant.

Substantial miscarriage of justice: principles

38 The principles relating to the correct application, of s 276(1)(b) of the Criminal Procedure Act, were considered by the High Court in Baini v The Queen,[9] and have since been summarised in this Court.[10] The principles, discussed in Baini, that are applicable in this appeal, include the following:

(1) A miscarriage may occur where the Court of Appeal cannot be satisfied that the error or irregularity, in the trial, did not make a difference to the outcome of the trial.[11]

(2) A Court of Appeal's satisfaction that a finding of guilt, against an appellant, was inevitable, notwithstanding the error or defect in the trial, may lead to the conclusion that there has not been a substantial miscarriage of justice.[12]

(3) In such a case, the question is not whether a guilty verdict was open to the jury. Rather, the essential enquiry is whether such a verdict was inevitable.[13]

(4) Thus, where a respondent to an appeal seeks to establish that the verdict was inevitable, an appellant may successfully meet that point, by demonstrating no more than that, had there been no error, the jury 'may' have entertained a doubt as to his or her guilt.[14]

(5) In considering whether a guilty verdict was inevitable, notwithstanding an error or defect in the trial, the court must act on the written record of the trial, but taking into account the natural limitations that may exist in undertaking such an analysis.[15]

Whether substantial miscarriage of justice: analysis

39 Having reviewed the evidence in the trial, and the course taken by counsel for the appellant in the trial, we are satisfied that the theoretical error, relied on by counsel for the appellant, did not constitute, or result in, a substantial miscarriage of justice.

40 We have reached that conclusion for two, interrelated, reasons. First, in the particular circumstances of this case, there was an abundance of evidence that the appellant was a party to an arrangement by which Brosnan was to transmit to his accounts funds belonging to MCA, and he was to receive those funds so transmitted to his account by Brosnan, and that he participated in that arrangement. There was no basis on which it could be maintained that there was a reasonable possibility that that transfer to his account of the funds, and his receipt of those funds, was not dishonest. Nor was there a basis on which it could be considered that there was a reasonable possibility that he did not intend to permanently deprive MCA of them. Ultimately, on the directions given by the judge, the guilt of the appellant, on each of the 38 charges, depended on the prosecution proving the guilt of Brosnan. More particularly, it depended upon the prosecution satisfying the jury that Brosnan was party to the arrangement or joint enterprise, to move the funds from the account of MCA to the account of the appellant. The second reason, why there was no miscarriage of justice, is related to those propositions, namely, that, on a review of the evidence, we are well satisfied that it was inevitable that the appellant be convicted of each of the charges against him.

41 In order to explain those conclusions it is necessary to summarise, in a little detail, evidence at the trial, and the course taken by the appellant at the trial.

42 After the prosecutor opened the case to the jury, counsel for each accused made a short opening.

43 In his opening address, counsel for the appellant told the jury that the appellant was a heavy gambler. He said that the appellant had engaged Brosnan as his accountant. When the appellant's Melton shop burnt down, he made a claim on the insurers. In doing so, he requested that he be treated as the contractor who was to repair the premises. Subsequent to making that request, the appellant received a phone call from someone calling himself 'Mark' from MCA, stating 'We can do this for you. We're also in the business of lending a bit of money, we hear you're a bit of a gambler, would you like to borrow some money?', to which, the appellant's counsel told the jury, the appellant had replied 'Yeah, okay'.

44 The appellant's counsel then told the jury that the first cheque from MCA was paid to the appellant's company, IT Solutions. Counsel told the jury:

As to the balance, he was a bit sceptical until unusual amounts of money kept appearing in his account which was designated as from MCA Insurers and which he then understood, 'Well these guys are serious they can lend the dough.'

45 Counsel told the jury that the arrangement was that the appellant would borrow the money, and repay it with interest at the rate of 10 per cent. Thus, each time the appellant would receive the money into his account from MCA, he understood it was pursuant 'to this loan agreement because he was meeting these people every month and effecting the repayments'. Counsel further told the jury that the appellant dealt with two people from MCA, namely one by the name of 'Mark', and another by the name of 'Keith'. Counsel said that the appellant was happy with the arrangement, because he was a gambler. Counsel concluded his opening by stating that the appellant did not appropriate the money, and that 'he had nothing to do with it leaving the MCA Insurer's account'. Counsel submitted that his client did not intend to permanently deprive the insurer of funds, because 'he was paying them back'. He also contended that the appellant was not acting dishonestly, because the persons who were paying the funds to him 'identified themselves as MCA'.

46 Pausing there, no evidence, at all, was adduced at the trial, whether by way of cross-examination, or by way of evidence by the appellant or any other witness, to substantiate any of the matters put by counsel in his opening. However, what is particularly relevant is that counsel, in his opening, on behalf of the appellant, admitted that the appellant knowingly received the amounts of moneys that were deposited into the IT Solutions account from the account of MCA, and that he did so pursuant to an arrangement with two other persons.

47 It is important to bear in mind the significance of the admissions so made by counsel for the appellant in his opening to the jury. Section 225 of the Criminal Procedure Act 2009 (Vic) provides that where an accused is represented at a trial, counsel must present to the jury a response to the prosecution opening. Further, it is required that the opening response by defence counsel identify and define the matters which the accused intends to place in issue, and the basis upon which they are to be put in issue in the trial.[16] It is in that context that it is significant that, at no time during the trial did counsel for the appellant seek to retract, correct, qualify or explain, in any way, the admissions which were made to the jury on behalf of his client at the commencement of the trial.

48 As mentioned earlier, with the exception of one witness, most of the evidence in the trial, was directed to proving that Brosnan was the person who had been responsible for initiating and effecting the transmission of the MCA funds, not to the persons nominated in the transfers (that is, the insurance underwriters), but to the account of IT Solutions, controlled by the appellant.

49 Belinda Massey was the first witness in the trial. She was an accountant employed by MCA from 2012. In her evidence, she explained the electronic banking system that had been established by Brosnan. After Brosnan left the employment of MCA, she became aware that a number of suppliers were claiming that their accounts had not been paid. As a consequence, she developed a spreadsheet (which formed part of Exhibit A) identifying those payments.

50 In cross-examination by counsel for Brosnan, Ms Massey stated that Brosnan made the payments whenever he was asked to do so. She also agreed that he was quite chaotic in the manner by which he made the payments. She was then cross-examined as to who could authorise or generate the particular payments. Ms Massey stated that only Brosnan, John Christoffelsz and herself could generate a payment, and 'the other people' could only authorise a payment. She said that those other persons did not have access to the payment screen. Ms Massey disagreed with the proposition that there were other employees of MCA who could generate, but not authorise payments. She said that one of her responsibilities was to reconcile bank statements against the company's records. However, Brosnan did not keep that up to date. After Brosnan left, and insurance underwriters were asking for their money, she tried to reconcile their claims against the accounts. That was a difficult task because the reconciliation had not been conducted properly for a long time, and the records of MCA were 'a big mess'. Ms Massey also agreed that there had been less control over the brokers, employed by MCA, before she started. She had endeavoured to introduce new procedures in order to improve the process.

51 In cross-examination by counsel for the applicant, Ms Massey agreed that 'things were fairly loose' in terms of the accounting practices when she commenced to work with MCA. Counsel put to Ms Massey, but she denied, that John Christoffelsz (the owner of the business) was the person who created and initiated the payments that were the subject of charge 35 and charge 41.

52 Pausing there, it is to be noted that, at that stage, counsel for both Brosnan and the appellant directed their cross-examination of Ms Massey, first, to the issue whether Brosnan was the person who had initiated the relevant payments that are the subject of the charges, and, secondly, to the issue whether Brosnan's participation in the transmission of the funds to IT Solutions was due to his incompetence, rather than intentional dishonesty.

53 The next witness was Eric John Christoffelsz, the managing director of MCA. Mr Christoffelsz stated that during 2011 Brosnan was falling behind in his work, and he was replaced in early 2012 by Ms Massey. At that time, Mr Christoffelsz received a telephone call from an underwriter claiming that MCA owed the underwriter over $1 million. Mr Christoffelsz then described how the electronic payment system worked. He said that it was Brosnan who would 'set up' the payment details electronically, and would authorise the payment. He would then ask one of the other signatories to the bank account (himself, his son Mark, or another employee, Rhonda Dolphin) to be the second authoriser of the payment. Mr Christoffelsz stated that the appellant was a client of the firm, that he had a business insured through MCA, and that he had made two claims in respect of that business. Finally, Mr Christoffelsz gave evidence as to how he had learnt of the transactions that are the subject of the charges. He denied that he had initiated the payments in charges 35 and 41.

54 In cross-examination by counsel for Brosnan, Mr Christoffelsz stated that the audit that was conducted on 30 June 2011, did not cause anything untoward to be brought to his attention. However, after the payments, that were the subject of the charges, were brought to his attention, Ms Massey suggested improvements to the payment procedures of MCA. Mr Christoffelsz said that when Brosnan was employed by MCA, it was expected that he would pay the insurers once each month. Normally, if there was a payment issue relating to an insurer, he would refer it to Brosnan. Mr Christoffelsz agreed that IT Solutions was a customer of MCA. Counsel cross-examined Mr Christoffelsz suggesting that IT Solutions had made a claim in respect of Melton Chicken Bar, but the witness had no knowledge of that claim. He said that his business did not pay claims, rather, it acted as a 'post box' in respect of any such claim. Mr Christoffelsz agreed that in the period between August 2010 and December 2011, his firm had a turnover of approximately $12 million. The amount that was missing in the end was about 20 per cent of that sum, but he did not notice in the meantime that anything was wrong. He agreed that, as a director, it was his responsibility to make sure that the funds, which were held on trust for the insurers, were looked after.

55 When counsel for the appellant commenced his cross-examination of Mr Christoffelsz, he took up that line of questioning. In response, Mr Christoffelsz accepted that he had failed in his duty as a holder of the trust account. He agreed that the accounting system of MCA was ineffective for a period of 16 months, and that that deficiency had been missed by the auditors.

56 Mr Christoffelsz agreed that in the period 2009 and 2010, he was absent from the business ill for some time, and his son Mark took over some of the administration of the business. He said that he was not aware that the insurers had made any telephone calls to his son Mark about unpaid accounts. Counsel then asked Mr Christoffelsz if anyone had been employed or engaged in his business by the name of 'Keith'. Mr Christoffelsz responded 'No'.

57 Counsel for the appellant then embarked on a line of cross-examination about an amount of $9,695 received by one M King from MCA. When the prosecutor objected to that line of questions, counsel for the appellant responded that it was relevant to show 'there is a whole series of withdrawals from the trust account that are not proper'.

58 After the appellant's counsel finished cross-examining Mr Christoffelsz, counsel for Brosnan further cross-examined him. Mr Christoffelsz said that IT Solutions was a client, which was introduced to MCA by Brosnan. He agreed that Brosnan had his own accounting firm, and that he had been concerned that Brosnan was spending too much time, when working at MCA, dealing with his own accounting clients.

59 It seems that the cross-examination, by counsel for both accuseds of Mr Christoffelsz, was directed to demonstrating that the accounting systems of MCA were deficient. Again, it is to be noted that that line of questioning could only have been relevant to the issue of dishonesty on behalf of Brosnan.

60 The third witness in the trial, Mark Christoffelsz, was an insurance broker employed by MCA from 2003 to 2011. He stated that he had never been responsible for creating a payment to an insurer, but he had authorised transactions that had been initiated by Brosnan. For that purpose, Brosnan would ask him to authorise transactions that had been prepared by Brosnan. After a few such transactions, Mark Christoffelsz thought that it was prudent to ask Brosnan to send him an email each time he required an authorisation. When he authorised a payment, he could see, on the computer screen, that the money was being paid to an insurance company, but he did not check any other details contained on the screen.

61 Counsel for Brosnan cross-examined Mark Christoffelsz relating to the practice, that he had initiated, of requiring Brosnan to send him emails whenever he needed to have a payment authorised. Mark Christoffelsz also stated that, from time to time, refunds were issued to clients, if they changed their minds about the insurance they were effecting through MCA. The witness was then cross-examined (in some detail) about the reimbursement to him, from MCA, at the cost of a lunch at a restaurant in the sum of $541.

62 Counsel for the appellant cross-examined Mark Christoffelsz about where he kept his dongal, and whether his user ID was taped to the back of it. Counsel then pursued a line of questioning directed whether the witness had created or initiated any payments himself. In response, Mr Christoffelsz said that he did not have the ability to create a payment, his role was as a 'second authoriser' of payments. He said that all payments were created by the financial controller, Brosnan. He said that, at one stage when his father was ill, he had assumed responsibility for running the business, but he was not responsible for the financial side of the business.

63 Counsel for the appellant then cross-examined Mark Christoffelsz as to whether he knew 'anyone who's got the first name of Keith'. The witness denied that he knew anyone who had that name. He was asked 'Are you sure about that?', to which the witness responded 'Absolutely'.

64 Counsel for the appellant then cross-examined the witness about a previous conviction he had incurred on a drink driving charge. He then completed his cross-examination of Mr Christoffelsz. When he did so, the judge, in the absence of the jury, asked counsel whether he was going to put to Mark Christoffelsz that he was the person, to whom he had referred in his opening as 'Mark', and who the appellant was said to have met at cafes and was connected with his gambling. Counsel responded that he was not going to allege that the witness was 'the Mark'. He said that it was not his instructions that Mr Mark Christoffelsz was the 'Mark' referred to in his opening.

65 Again, it would seem that in cross-examining Mark Christoffelsz, counsel for the appellant pursued the same two principal lines of questioning, namely, whether Mark Christoffelsz (and not Brosnan) had initiated the payments that were the subject of the charges, and, secondly, that the payments and accounting systems of MCA were deficient. Each of those issues were directed to the implication of Brosnan in the alleged joint criminal enterprise.

66 Rhonda Dolphin was the senior account manager of MCA. In that capacity she had a portfolio of insurance clients. She also was the holder of an NAB dongal. Ms Dolphin described how she would use the dongal to authorise a payment that was created in the system. In cross-examination by counsel for Brosnan, Ms Dolphin said that she had never created a payment, but that she had authorised payments on Brosnan's computer. Ms Dolphin was not cross-examined by counsel for the appellant.

67 Hemanthi Junaideen was an account manager of MCA. After Mark Christoffelsz left MCA, Ms Junaideen was issued with a NAB dongal for the purpose of authorising transactions. When Brosnan asked her to do so, she would go to his office. Brosnan would set up the payment, and she would give him her pin number, and authorise the payment. She said that she had never created or initiated any of the payments. Ms Junaideen was cross-examined by counsel for Brosnan as to how many times she had authorised payments. She was not cross-examined by counsel for the appellant.

68 Ms Mary Valenchi gave evidence relating to charge 39, and Ms Dana Wood gave evidence concerning charge 37. Neither of those charges were against the appellant. In short, the witnesses gave evidence as to the receipt by them of moneys from MCA Insurance, each at the request of the person with whom they were in a relationship. They gave evidence that those moneys were subsequently removed from their accounts and paid to another person.

69 Mr David Kneipp, was the claims manager of QBE Insurer. That company had insured Melton Chicken Bar through a policy of insurance obtained through MCA. In his evidence Mr Kneipp said that two claims were made on QBE in 2010 under the policy in relation to malicious damage to the shop. The claim was settled with the proprietor of the business, Mr Leigh Nomarkas, by payment of a sum of $66,000. In cross-examination by counsel for the appellant, Mr Kneipp said that the property was not reinstated, so the insurer negotiated an indemnity settlement, that was equivalent to the depreciated value of the business.

70 The informant, Matthew De Boer, who at the time was a detective senior constable stationed at Monash CIU, gave evidence, in which he produced a number of different documents that were tendered in evidence. In particular, he produced the bank statements of IT Solutions for the relevant period, the call charge records relating to Brosnan's mobile telephone for that period (Exhibit K) and the call charge records relating to the appellant's telephone for that period (Exhibit L). Relevantly, Mr De Boer had marked the call charge records to identify telephone calls that had taken place between Brosnan and the appellant.

71 In cross-examination by counsel for Brosnan, Mr De Boer confirmed that Brosnan's accounting practice was located in Glen Waverley, and that the appellant was a client of that firm. He said that there was no record of Brosnan being a shareholder or director of IT Solutions. In cross-examination by counsel for the appellant, the witness also produced an extract of call charge records (Exhibit S), which had been derived from call charge records of the landlines of both Brosnan and the appellant. He then went through the call charge records correlating the dates of the telephone calls, between the two men, with the dates of the charges. Finally, Mr De Boer produced a chart of telephone calls made by each accused at about the time of each of the charges in the indictment (Exhibit T).

72 The final witness in the trial was Margot Saliba, a forensic accountant. Her evidence was directed to the involvement of the appellant in the payments, that were the subject of the charges against him.

73 Ms Saliba had traced the moneys, that were the subject of each of the charges, and compiled the results in the document that is Exhibit M. She said that the account of IT Solutions, into which the funds were deposited, was an account of the appellant. She explained that the other accounts, referred to in Exhibit M, and that commenced with the initials 'ED', were also associated with the appellant. In Exhibit M, she had recorded the initial credit of funds from MCA into the IT Solutions account with the ANZ Bank, and then traced the movements of those funds through other accounts that were also associated with the appellant. She also produced a further document (Exhibit O), in which she had set out a compilation of the cash withdrawals from the relevant accounts referred to in Exhibit M, and also the cash cheques that were withdrawn from those accounts during the relevant period.

74 In cross-examination by counsel for the appellant, Ms Saliba agreed that Exhibit M did not identify the person who might have withdrawn from the IT Solutions account, the amounts, that were noted in the document, or which Visa card was used for those withdrawals. She said that she did not know who withdrew the amounts of cash set out in Exhibit O. She agreed that there were many instances in which there were multiple withdrawals of cash from the accounts on the same day.

75 Ms Saliba agreed that she had examined transactions in the accounts of IT Solutions, Complete Grinding Services (another entity connected with the appellant) and the appellant in the dates that are not captured on Exhibit M and had compiled a chart depicting each withdrawal and each credit in those accounts. She was cross-examined about the transactions on that document, which was not put before the jury. She said that in respect of the cash cheques referred to, she did not know who wrote them. She did not know whose signatures were on those cheques.

76 After that line of questioning had proceeded for a little time, the prosecutor objected to the cross-examination, being undertaken by counsel for the appellant. In the absence of the jury, the prosecutor pointed out that the line of cross-examination, undertaken by counsel, seemed to be contrary to the manner in which counsel had opened the case to the jury, namely, that the appellant had knowingly received the funds transferred to his account from the account of MCA. The prosecutor pointed out that, hitherto, there had been no issue raised by the appellant that he had received the money, but, rather, the case had been opened on the basis that he had legitimately received it as a loan in order he could gamble it, and on the basis that he would subsequently repay the money.

77 In response to that objection, the judge asked counsel for the appellant if he was resiling from his defence. Counsel for the appellant responded 'No your Honour'. The judge then stated:

I daresay there's a forensic point in the cross-examination and we'll hear about it in the final address.

78 When the jury returned to the Court, Ms Saliba was further cross-examined by counsel for the appellant concerning a document containing a full list of deposits and withdrawals in relation to the appellant's accounts during the relevant period (Exhibit 7). She agreed that money had gone into those accounts from various sources, including MCA.

79 In re-examination, Ms Saliba stated that, apart from transfers from other accounts related to the appellant, there was no other source of funds, deposited into the appellant's IT Solutions account during the relevant period, except the money sourced from MCA, and some payments from Brimbank City Council.

80 After the prosecution closed its case, counsel for Brosnan, and counsel for the appellant, each announced that they did not propose to call any evidence on behalf of their client. In discussions with the judge in the absence of the jury, counsel for the appellant accepted as correct the proposition stated by the judge, namely, that there was 'not a skerrick of evidence' adduced before the jury as to the arrangement foreshadowed by counsel in his opening, namely, that the appellant had entered into an arrangement to receive the funds by way of loan from MCA with two men who purported to be from MCA.

81 It is next necessary to refer, briefly, to the final addresses of counsel for Brosnan and counsel for the appellant.

82 In his final address, counsel for Brosnan stated that the critical issue concerning his client was that of dishonesty. Counsel told the jury that there was no dispute that Brosnan was the person, who set the payments up, and, in most cases, first authorised them. He then referred to the evidence of Ms Massey that things were chaotic when she took over, and to the evidence that the system was accessible 'to everyone or almost everyone in the business'. Counsel submitted that the jury could not exclude the reasonable possibility that Brosnan was doing no more than responding to instructions, that he had received, to make the payments in the form that they were made. Counsel noted that the auditors did not pick up any deficiency at 30 June 2011. In those circumstances, she submitted that the jury could not be satisfied that Brosnan must have known about it, when other people did not. Counsel emphasised that Brosnan was poor at his job and that he lacked professionalism. However, it was submitted that 'being absolutely hopeless in your job even doesn't make you criminally responsible'.

83 Counsel for Brosnan submitted that the contacts between her client and the appellant were innocent. The two men knew each other, there was a lot of contact between them, but there was nothing unusual about that. She noted that the appellant and IT Solutions were clients of MCA. Counsel concluded her submissions by submitting that the jury could not exclude the possibility that someone else in the business was able to access the details of IT Solutions and set up the scheme.

84 It is to be noted that although counsel for Brosnan, and indeed also counsel for the appellant, had, in cross-examination, sought to establish that employees of MCA, other than Brosnan, might have generated the payments that were the subject of the charges, counsel for Brosnan realistically abandoned that line of defence in his address.

85 In his final address, counsel for the appellant submitted that the fact that money went into the account of a company with which the appellant was associated, and the fact that the money was moved out of that account, did not mean that he was the person who was orchestrating those matters. Counsel noted that there were a number of withdrawals of cash from the IT Solutions account and from related accounts. He said:

We know the money was withdrawn, we don't know by whom. We know the money was moved around, but we don't know by whom. Ultimately you're being asked to find Mr Dailakis guilty of being the person who actually did that. There is no evidence of it ... .

86 The judge then interrupted the appellant's counsel's submissions. In the absence of the jury, the judge reminded the appellant's counsel of the objection, taken by the prosecutor in the course of his cross-examination of Ms Saliba and that counsel had replied that he was not resiling from the defence he had opened to the jury at the commencement of the trial. The judge asked defence counsel, 'How is it what you're putting to the jury is anything other than resiling what your reply was to this jury?'

87 In response, the appellant's counsel made a confusing response to the following effect:

I'm not saying that I'm saying nothing about it, I mean I'm still in the middle of my address, but I will come to it. I will put it, your Honour.

88 The judge responded (correctly) that there was no evidence adduced in the trial in relation to the defence foreshadowed in the opening by counsel for the appellant, but that counsel was now raising, in contradistinction to that opening, that the prosecution had not proven any connection between the appellant and the moneys paid into his account. Counsel replied by saying that he had been making a preliminary reply, but that as the case ran, the matter had transformed. The judge responded that defence counsel could have opened the case to the jury by simply telling them to keep an open mind. Defence counsel stated he had proposed to call defence witnesses, but he was left to make a forensic judgment.

89 The jury then returned to the court. The appellant's counsel continued his address. He said that there were a number of bank accounts and cash withdrawals. He said there had never been any dispute that the appellant was responsible for some of the cash withdrawals. He also said that the appellant did not resile from the fact that he knew that moneys were going into his accounts, and he did not resile from the fact that he withdrew cash from the accounts. But, he submitted, the issue was whether or not the appellant had actually appropriated the money from the insurance company. He asked, rhetorically, in respect of each appropriation, did the appellant do it on his own or with knowledge? Counsel submitted that that matter had not been proven, and that also it had not been proven that the appellant had intended to deprive MCA of the funds permanently. He said that the appellant was living his life independently of Brosnan, save that there were a number of telephone calls between them, but that there was no evidence as to what those calls were about. He submitted that the prosecution had not proven its case, and, on the issue of dishonesty, there was no evidence that the appellant had enriched himself with the proceeds of the deposits.

90 The foregoing review of the evidence and the course of proceedings in the trial, dictates the conclusion that the error, complained of by the appellant, did not result in any substantial miscarriage of justice in the case. There are two related reasons for that conclusion. First, it was inevitable, on the evidence adduced at trial, that the appellant, be found guilty of each of the charges against him. Secondly, the direction given by the judge to the jury, that is the subject of the appeal, was not in any way unfair to the appellant, as it was, if anything unduly favourable to him.

91 As we outlined earlier, in order that the appellant be found guilty of the charges against him on the basis that he was a party to a joint criminal enterprise with Brosnan to commit the theft charge against him, the prosecution was required to prove:

(1) The appellant was a party to an agreement or understanding with Brosnan to commit each of the thefts charged in the indictment.

(2) The appellant participated in that joint enterprise in some way.

(3) In accordance with the agreement or understanding, one or more of the parties to it (that is Brosnan and the appellant), between them, performed all of the acts necessary to commit the thefts that were charged. That is, one or more of the parties appropriated the moneys, belonging to MCA, that were the subject of each of the charges;

(4) At the time that he entered into the agreement or understanding with Brosnan, the appellant had the state of mind necessary for the commission of the offences charged; that is, he dishonestly intended to permanently deprive MCA of the funds that were the subject of each of the charges.[17]

92 In the present case, it is clear that the evidence established, beyond doubt, that the appellant was a party to an arrangement to receive the moneys transmitted to his account from the account of MCA and that were the subject of the charges. Counsel for the appellant, in his preliminary opening to the jury, admitted that the appellant was a party to such an arrangement. Further, it is clear that the arrangement that the appellant entered into, for the receipt of those funds, was made with Brosnan. The evidence was that the appellant was acquainted with Brosnan. The funds were remitted to the account of IT Solutions by Brosnan. The telephone records evidenced numerous telephone conversations between the two men at around the time of the payments. Notwithstanding the arrangement referred to by counsel in the preliminary opening, no evidence, at all, was led to support the proposition that the appellant had entered into the arrangement, to receive the moneys, with some other person or persons connected with MCA.

93 It was not suggested at the trial, or on this appeal, that the evidence, adduced by the prosecution in respect of the first element, was not cross-admissible against each of the two accuseds at the trial. The concession made by counsel for the appellant, in his preliminary opening to the jury, mentioned above, was not admissible, and could not be used by the jury, against Brosnan. To that extent, the prosecution case against the appellant, on the first element of the charges, was stronger than the prosecution case against Brosnan. Nevertheless, it is plain, from the facts referred to in the preceding paragraph, that it was inevitable that the jury be satisfied beyond reasonable doubt that both the appellant and Brosnan were party to the joint criminal enterprise alleged against each of them.

94 As to the second element, outlined above, there was ample evidence of the participation by the appellant in the transmission to him, via the account of IT Solutions, of the amounts alleged in each of the charges. The moneys were paid to his account. In his opening to the jury, counsel for the appellant admitted that the appellant knew that the funds were being deposited into his account. As already mentioned, at no time during the trial did counsel for the appellant seek to retract, correct or qualify that admission that he made on behalf of the appellant, notwithstanding that the judge reminded counsel of the content of his opening at the conclusion of his cross-examination of Mark Christoffelsz, and notwithstanding that further reference was made to it when counsel for the prosecution objected to questions directed to Ms Saliba in cross-examination by counsel for the appellant. While, in cross-examination of Ms Saliba, and in final address, defence counsel sought to put in issue whether the appellant was the knowing recipient of those funds, he resiled from that approach when it was made plain to him that he was thus contradicting the basis upon which he had opened the case to the jury. Further, and in any event, the only evidence, relating to the account of IT Solutions, was that it was the account of the appellant, and that it was he who was authorised to operate it. In addition, the evidence of Ms Saliba, and, in particular, exhibit M that was produced by her, demonstrated, more than amply, that the appellant had participated in the enterprise, not only by receiving the moneys transmitted to him by Brosnan, but by moving them within his accounts, and withdrawing cash from those accounts.

95 Further, the evidence established, beyond all doubt, the third element of the charges, namely, that one or more of the parties to the joint criminal enterprise appropriated the moneys, belonging to MCA. The evidence of Ms Massey and Ms Saliba, in combination with exhibit A and exhibit M, clearly demonstrated that Brosnan appropriated the moneys of MCA by transmitting those moneys from the account of MCA to the account of IT Solutions. As noted, in the course of the trial, counsel for Brosnan and the appellant each sought to raise a doubt as to whether it was Brosnan who had created or instigated some of the payments in question. However, that proposition was, understandably, abandoned in final address, as the uncontradicted evidence of the witnesses was that it was Brosnan alone who had been responsible for creating or initiating each of those payments.

96 We turn, then, to the fourth element, namely, that the appellant dishonestly intended to permanently deprive MCA of the moneys that were transmitted to his account. On the evidence in the trial, that element was amply proven beyond reasonable doubt. Notwithstanding the matters opened to the jury, no evidence was adduced as to an entitlement of the appellant to payments totalling more than $1.8 million from MCA. There was no basis upon which the appellant could, at any time, have considered himself to be entitled to receive those moneys. Further, and importantly, the manner in which the appellant had shuffled the moneys through his accounts, and withdrawn large sums in cash, gave rise to the irresistible inference, contended for by the prosecution, namely, that the appellant was concerned to make it difficult for the moneys to be tracked, and he was also concerned to create some veneer of commerciality about the dealings. It was also strong evidence of an intention by the appellant to permanently deprive MCA of those moneys.

97 For those reasons, we are well satisfied, on a review of the evidence, that the conviction of the appellant, on each of the charges against him, was inevitable. Further, it has not been demonstrated that the direction, given by the judge to the jury was, in any manner, unfair to the appellant. The cases against the appellant, and Brosnan, were both particularly strong. However, it is clear that the prosecution case against the appellant was stronger than that against Brosnan for two reasons. First, as noted, counsel for the appellant, in his preliminary opening, conceded on behalf of his client that the appellant was a party to an arrangement with a person or persons, connected with MCA, to receive funds of MCA for his own use. The jury was not entitled to take that concession into account in considering the case against Brosnan. Secondly, as also noted, no 'positive' defence was raised at all to the charges against the appellant. On the other hand, a defence, of sorts, was raised on behalf of Brosnan, namely, that he was an unwitting party to any enterprise to deprive MCA of its funds, and that his transmission of the funds, the subject of the charges, to the appellant, were due to gross incompetence by him, rather than dishonesty.

98 Thus, the direction given by the judge to the jury, that is the subject of this appeal, was, if anything, unduly favourable to the appellant. Nevertheless, once the jury, was satisfied, beyond reasonable doubt, of the guilt of Brosnan, it was inevitable that it would have convicted the appellant of each of the charges against him, even if the judge had not given to the jury the directions that are sought to be impugned on this appeal.

99 We should add that clearly, the jury was satisfied beyond reasonable doubt that Brosnan was an intentional party to an agreement or arrangement with the appellant to dishonestly permanently deprive MCA of the moneys that are the subject of the charges, and that Brosnan had intentionally and dishonestly remitted those funds to the appellant for that purpose. In that respect, we observe that the jury was well justified in reaching that conclusion. The number of the transactions, the amounts involved, and the multiple telephone connections between Brosnan and the appellant, constituted a strong circumstantial case as to Brosnan's dishonest intent in relation to the moneys that he transmitted to the account of IT Solutions. While the evidence revealed that Brosnan's accounting methods were, to some extent at least, disorganised, nevertheless the evidence fell far short of giving rise to a possible inference that Brosnan's transmission of the funds to the account of IT Solutions, rather than to the underwriters who were named as the payees on each of the transfers, was the result of repeated acts of incompetence by Brosnan, and not deliberate design by him.

100 For those reasons, we are satisfied that the direction given by the judge to the jury, that is the subject of the ground of appeal, did not in any way redound to the disadvantage of the appellant. Further, we are satisfied that, on the evidence adduced at the trial, and the course undertaken at the trial, it was inevitable that the appellant be convicted of each of the 38 charges against him.

101 We are fortified in that conclusion by the circumstance that the appellant's counsel at trial did not take exception to the direction given by the judge to the jury, that is now the subject of the complaint on this appeal. As we have noted, the direction was, first, given to the jury during the judge's charge itself. While counsel on behalf of Brosnan raised with the judge whether that direction was appropriate in respect of the case against Brosnan, counsel for the appellant took no exception to it, even after being asked by the judge if he wished to do so. Subsequently, when the judge responded to the question asked of him by the jury during its deliberations, counsel for the appellant (and counsel for Brosnan) did not take any exception to the response given by the judge to that question. It may be that counsel for the appellant specifically declined to take an exception, because, for the reasons that we have already outlined, the direction had the potential to redound to the advantage of the appellant,[18] particularly in circumstances in which it was plain that the prosecution case against the appellant was powerful, and that the appellant had not raised any viable defence to it.

102 For the foregoing reasons we are satisfied that, notwithstanding that the direction given by the judge to the jury, that is the subject of the appeal, was erroneous, nevertheless it did not constitute or result in a substantial miscarriage of justice to the appellant. It follows that the appeal should be dismissed.

[1] The Queen v Darby [1982] HCA 32; (1982) 148 CLR 668 ('Darby'); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 310 (Toohey and Gaudron JJ).

[6] Ibid 337 (Redlich and Coghlan JJA, Dixon AJA). See also R v Clarke & Johnstone [1986] VicRp 64; [1986] VR 643, 653 (Crockett, McGarvie and Southwell JJ); Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265, 273 [19]; R v Tangye (1997) 92 A Crim R 545, 556-7.

[8] Ibid 433-4. See also Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 323-5 [14]-[17] (Gaudron and Gummow JJ), 350 [93] (McHugh J).

[10] See, eg, Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659, 677-8 [85] (Maxwell P, Weinberg and Priest JJA).

[12] Ibid 480 [30], 481 [33]. See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 315-6 [35]; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, 106-7 [36].

[17] McEwan v The Queen [2013] VSCA 329; (2013) 41 VR 330, 336 [32].

[18] Cf R v Wright [1999] VSCA 145; [1999] 3 VR 355 [2] (Phillips CJ, Charles JA).

At a glance

Court

Decision date

Before

Source

Judgment (141 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (11)