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[2013] NSWSC 28
Supreme Court of NSW
2013-02-01
Fullerton J
Original judgment source is linked above.
Judgment 1HER HONOUR: On 3 March 2011 the first defendant, John Elias, was arrested and charged with having attempted on 19 August 2010 to dishonestly obtain a financial advantage by deception from Tabcorp contrary to s 192E(1)(b) of the Crimes Act 1900. Put simply, the prosecution alleged that a particular betting option operated by Tabcorp, namely which team would score first and by what means in a scheduled National Rugby League ("NRL") game between the North Queensland Cowboys ("the Cowboys") and the Canterbury-Bankstown Bulldogs ("the Bulldogs"), was manipulated by at least one Bulldogs player, Ryan Tandy, who was to cede a penalty goal to the Cowboys early in the game. The prosecution case was that the first defendant, knowing that this was the arrangement, dishonestly structured a series of cash bets with TAB betting agencies at Rozelle and Haberfield in the total amount of $5100 in the expectation of securing winnings in the amount of $98,455. An attempt to commit the offence was charged because although the Cowboys, the team the first defendant nominated as the first team to score, did score the first goal, it was not by means of a penalty goal (as was the intended outcome of the manipulated play) but by a try and, as a consequence, the bet failed. 2On 24 November 2011, after a five-day summary hearing in the Local Court before Miszalski LCM, his Honour heard final submissions from the parties, after which he dismissed the information on the basis that the prosecution had failed to prove guilt beyond reasonable doubt. He delivered his reasons ex tempore. 3In February 2012 the Director of Public Prosecutions (NSW) took over conduct of the proceedings and on 28 February 2012 filed a summons in this Court seeking an order, pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001, that the order of the magistrate dismissing the information be set aside and that the matter be remitted to the Local Court to be dealt with according to law by a magistrate other than Miszalski LCM. A challenge to an order of acquittal is limited to a question of law. The plaintiff contended that the magistrate erred in law in failing to provide adequate reasons for his decision to dismiss the proceedings and in failing to inform himself of the substance of a document sought to be tendered by the prosecution through one of its expert witnesses before rejecting it. 4In the alternative, prerogative relief under s 69 of the Supreme Court Act 1970 was sought requiring that the Local Court be joined as the second defendant. In accordance with the usual practice the Local Court filed a submitting appearance. At the hearing the alternate relief sought in the Summons was not pressed. Counsel for the plaintiff accepted that if legal error of the kind contended for was demonstrated, the relief under s 59 of the Crimes (Appeal and Review Act was the effective and convenient remedy, and that being the case, consistent with Avery v Registrar of Births, Deaths and Marriages; Avery v State of NSW (Attorney-General's Dept) [2010] NSWCA 72; 79 NSWLR 354 at [117], prerogative relief would be refused.
The Local Court hearing 5A large volume of documentary evidence was relied upon by the prosecution, including statements by witnesses not required for cross-examination and detailed charts and summaries of evidence. Sixteen witnesses were called to give evidence and were cross-examined, two of whom were expert witnesses. They gave their evidence over objection. The first defendant did not give evidence and did not call any evidence. 6It was submitted by the plaintiff that the detailed and, in some important respects, contentious nature of some of the evidence and the issues of fact and law raised by it obligated the magistrate to clearly identify the evidence upon which he relied for the purposes of determining whether the offence had been proved and to undertake an analysis of that evidence both for what it proved, or failed to prove, of the constituent elements of the offence. This was submitted to be of fundamental importance where, as here, the evidence in proof of guilt was circumstantial. 7Quite apart from whether I am persuaded that his Honour's reasons were inadequate as a matter of law, such references as he made to the evidence in his reasons can best be described as brief and discursive. For that reason I have found it necessary to rely on counsels' detailed summary of the evidence referable to what I understand to be the various categories of evidence in the prosecution case and the issue to which that evidence was directed in proof of guilt.
Was the game manipulated by Ryan Tandy? 8On 21 August 2010 the scheduled game between the Cowboys and the Bulldogs was played in Townsville. The composition of the teams was announced the Tuesday before the match. Jonathon Thurston captained the Cowboys but did not play in Townsville because of an injury. Aaron Payne took his place. Anthony Watts was to play for the Cowboys as a replacement for an injured player on that team. 9Within minutes of the start of play a Bulldogs player, Ryan Tandy, tackled a Cowboys player in front of the Bulldogs goal posts a short distance from the try line, and was penalised for excessive holding down. Anthony Watts took the penalty. However, rather than electing to kick for goal, he took a quick tap and passed the ball to Ty Williams, who scored a try. 10A DVD recording of the match was tendered by the prosecution and evidence called from a number of players (excluding Tandy), the Bulldogs coach and the on field referees as to the state of play at that time. 11Jason Robinson was the head referee. He had refereed in excess of a hundred first grade games over 24 years. In his view, the game was routine. He said that although there were two Bulldogs players involved in the tackle, the penalty was awarded against Tandy because Mr Robinson considered that he was the "main culprit", having taken too long to get off the tackled player and because the tackle involved impermissible "wrestling". In answer to a question asked by the magistrate he said he believed any first grade referee would have awarded a penalty against Tandy in the circumstances. He went onto say that Tandy's actions appeared to be deliberate but was unable to say whether that was to deliberately give away a penalty or to slow the play down, neither of which were, of themselves, indicative of a manipulated play. 12Mr Robinson stated that usually a player given the ball as a result of a penalty has three options: (a) kick for touch (b) attempt a try or (c) kick a penalty goal. However, given the position of the players at the time the penalty was awarded, the options available to the Cowboys were reduced to two, a kick for touch being realistically out of the equation, there being no field advantage. He gave the following evidence: The team can kick the ball out on the full or on the bounce, but in general play if they kick the ball out on the full, they actually lose ground. On a penalty they can kick the ball forward and into touch, so out of play, which gives them an extra 20, 30, 40 metres down the field. Given that this was near the goal line, they'd have to kick it further across the field than down the field to gain any advantage. So there's no reason for that. Depending on - the different teams have different tactics. Some teams elect to take any points that are on option. So they would take a kick for goal. In that situation, given the way the defence was set up, a tap was probably a fair option as well. 13Of Tandy's offending play generally he gave evidence as follows: I can say that I recall that Ryan Tandy dropped the ball in the first 'play the ball' of the game. As a result of that happening I awarded a 'scrum' with a Cowboy's "feed". The Cowboys gained possession of the ball as a result of that play and during that set of six tackles, Tandy and two other bulldog players were involved in a tackle. The Bulldogs players took a long time to get off the tackled player. As a result I awarded a penalty to the Cowboys. How a penalty is taken is an option for the team awarded the penalty. At the time the Cowboys were in about the 10m range from the Bulldogs goal line and just to the left of the goal posts. I think it was Anthony Watts from the Cowboys side who had the ball at the time the penalty was to be taken. I saw that he elected to tap the ball with his foot and play on. As far as I can recall there was no liaising between the team members prior to Anthony playing on. As a result of this play, the Cowboys retained possession and made ground, enabling them to score a try. This was the first score of the game. Cowboys eventually scored further points during the game but were defeated by the Bulldogs 22 points to 20 points. 14Gavin Reynolds was second of the two on-field referees for the game. In cross-examination he said that he believed that Tandy was "working" the tackled player to slow the game down, which would have been in the interests of the Bulldogs at that time. 15Michael Hodgson, a Bulldogs player, gave evidence that at the time he simply thought that Tandy was not having a good night and that there was nothing untoward or unusual about the game. 16Michael Ennis, the other Bulldogs player who was involved in the offending tackle, gave evidence that he had no knowledge of any players being involved in a betting scandal relating to the first scoring play of the game. He said there was no exchange between him and Tandy in the scrum or the tackle. As to that aspect of the play he said: I remember being involved in a tackle against a Cowboys player in the middle of the field a short distance out from our try line. I am pretty sure that I was the first defensive player involved in the tackle and I think Ryan Tandy came in to assist in the tackle. I recall starting to get off the tackled player and getting ready to defend at marker and hearing the referees whistle blow. The Cowboys were given a penalty. The penalty was given for holding down in the tackle for to long. Once I heard the penalty was given I went back to our line to defence. Ryan Tandy also came back to the line to defend". 17Anthony Watts' statement was tendered. He said that he made the decision to take the quick tap because the Bulldogs players were slow in getting back to their line. He said the decision whether to take the penalty goal or to convert it rested with either the hooker (and he was playing in that position in this game) or the captain. He said he had no knowledge of a scandal relating to the first scoring play of the game. 18Neil Henry was the Cowboys' coach. He also gave evidence that the decision to take a penalty goal was usually left to the player and/or captain and in this case he did not make any call as to what should be done following the penalty. He said there was no "game plan" to take a penalty goal early in the game. He went onto say at paragraph 19 of his statement: At the Cowboys generally the decision when we are awarded a penalty that is in kicking range to either take the shot at goal, a quick tap or kick for touch is left with the player's on the field at the time. There are circumstances when we coaches and trainers) will get a message out that may influence that decision. There was no call made by me or any other coach or trainer I can recall that could have influenced the decision of Anthony Watts to take the quick tap following that penalty. The decision made by Anthony Watts to take a quick tap following that penalty does not surprise me at all. That is usually what would occur under those circumstances so early in a game. 19Mr Henry said that Watts' decision to take a quick tap following the penalty did not surprise him because of the type of player Watts was: ... an impulsive player that is hard to coach, and he makes some rash decisions on the field, and for him to grab the ball and do that he would seize an opportunity. He's quite an opportunistic player. 20In order for the charge to be made out, the prosecution was obligated to prove to the criminal standard that Tandy manipulated the play with the intention of the first score being a Cowboys' penalty goal and that the first defendant knew that was his intention at the time he placed the multi bets on 19 August 2010. 21It was the prosecution case that despite the fact that nobody thought the tackle by Tandy (or when and where it occurred) was out of the ordinary or inexplicable, the DVD, coupled with the evidence of players, coaches and referees, and the betting patterns of the first defendant and his associates in the days leading up to the football game, was sufficient to prove that Tandy deliberately held down the Cowboys player to force the awarding of a penalty in front of the goal posts, a manoeuvre which was intended to result in a penalty goal by the Cowboys, and that the first defendant knew at the time he placed his bets with Tabcorp that Tandy would be manipulating the game to bring about that particular result.
The available betting options 22At the relevant time there were a number of different betting options available through agencies operated by the Totalisator Agency Board ("the TAB") in relation to betting on an NRL game. Those options included:
Relationship between the first defendant and Sam Ayoub 28Sam Ayoub was Ryan Tandy's manager. On 21 August 2010 he was in Townsville for the football game. The first defendant and Sam Ayoub were customarily in contact with one another on a fairly regular basis sharing a mutual interest in a Lebanese rugby league team. Jai Ayoub is Mr Ayoub's son. Brad Murray was a friend of Sam Ayoub. He gave evidence that he placed a number of multi bets in a form identical to those placed by the first defendant on Mt Ayoub's behalf at different agencies on 19 August. Although Brad Murray's evidence was relevant to the prosecution case on appeal, it was the agreed position of counsel that his evidence in the lower court that Mr Ayoub told him that the game would be set up for the Cowboys to score a penalty goal should be ignored.
The analysis of the bets placed by the first defendant and other persons on 19 August 2010 29The charge concerned only the multi bets placed by the first defendant on 19 August 2010 with the TAB. Documentary evidence in the form of spreadsheets prepared from Tabcorp records identified 11 cash bets (in the form of five leg multi bets with a Cowboys penalty goal incorporated with Geelong, Hawthorne, St Kilda and Collingwood nominated to win their respective AFL matches) totalling $5050 being placed between the 2.35pm and 6.35pm on that date at two different agencies. The first six multi bets were placed at the Rozelle agency over a period of three minutes. All six bets were for $500. Approximately 40 minutes later, and wearing different clothing, he placed an identical bet for $50 at the Haberfield agency followed half an hour later by a further four $500 multi bets. 30Mr Phillips, a betting analyst, gave expert opinion for the prosecution. He reviewed the first defendant's betting behaviour on 19 August in the context of his betting profile over a period of seven months (both before and after 19 August) as revealed by credit betting accounts he held with Tabcorp and other betting agencies. Mr Phillips described him as a "big punter", having staked over $400,000 in the seven months between March and October 2010 with his usual pattern of betting being the placement of large single bets on horse or greyhound racing. He regarded the marked dissimilarity in the structure of the 11 multi bets placed on 19 August, and the fact that they were placed at different agencies within a very short time, as "highly suspicious". 31Mr Phillips also reviewed the betting accounts and cash bets of Sam and Jai Ayoub with Tabcorp and other agencies, including multi bets of the same or similar structure to those placed by the first defendant, from which he concluded that the three men were either operating as a team or as individuals with the same information. He based that opinion on a number of factors:
32Mr Murrihy was also called by the prosecution as an expert in analysing betting patterns. He was general manager of the Integrity/Chairman with Racing New South Wales. He analysed the records from all betting entities utilised by the three men in the lead up to the Cowboys/Bulldogs game and concluded that the betting patterns: ... inextricably pointed to evidence of an attempt to defraud betting operators by manipulation of the Cowboys versus Bulldogs NRL fixture on 21 August 2010. 33In cross-examination Mr Murrihy agreed that although he did not enquire into the results of the four AFL legs on the first defendant's multi bets placed on 19 August (or any of the other two, three, four, five, six and nine leg multi bets he placed on other sports events) the common factor in each head to head wager on the AFL games was that they were very short priced favourites. He also gave evidence that the incorporation of short priced sports events in the multi bets placed by the first defendant effectively meant that betting limits that might otherwise have been triggered with a single bet were not triggered. 34Mr Murrihy also offered the following comment: In my experience, for a betting "sting" involving a first score penalty goal to be successful it requires the acquiescence of a player from the side bet against to give away the penalty close to goal and ideally the acquiescence of the play maker of the side wagered on to elect to take the penalty kick". To give absolute certainty to the success of the "sting" it would also be desirable to have the acquiescence of the captains of both teams to ensure from the kick-off the ball is at the right end of the ground and in the right position in proximity to goal [sic] for the team bet upon to score from a penalty kick. 35Mr Murrihy said that this was not the product of expert enquiry or investigation, rather it was a matter of common sense in that: If you want to improve your odds, if you had the playmaker on board, I suspect that that enhances your odds further. 36Later, in response to a question from his Honour, he explained: What I've spoken of there is in general terms of how you would enhance the odds and the likelihood of getting away with betting on an option like this, if you were trying to manipulate it ...What I'm talking about there is stages. If you want to enhance your odds of collecting a bet, to make it an absolute certainty, you have everyone involved. 37At the conclusion of his evidence Mr Murrihy was again questioned by his Honour about the multi bets and the fact that he had focussed his analysis only on the leg involving the Cowboy penalty goal as the first score. 38Evidence was given by a police intelligence analyst, Senior Constable Burgess, who analysed the telephone records and betting records of Tandy, Sam Ayoub, the first defendant and a number of other people who placed bets on the Cowboys penalty goal as first scoring play. He also produced various charts summarising and depicting the timing of bets and telephone calls by the first defendant, Sam Ayoub and others. In addition to showing the direct links between Sam Ayoub and the first defendant at the time he placed his multi bets with the TAB on 19 August 2010, there was telephone contact between Tandy and Sam Ayoub (and others) around the time bets were placed as well as up to and after the game on 21 August 2010. 39The Crown also relied upon what was said to be an indirect link between the first defendant and Tandy on the basis that the first defendant had telephone contact in the period between 10 to 31 August 2010 with a number of people, in addition to Sam Ayoub, who were also in direct telephone contact with Tandy on a regular basis and who also placed bets on the first scoring option being a Cowboys penalty goal. 40The following is a brief chronology taken from Senior Constable Burgess' detailed comparative charts of the timing of various bets and calls made by the first defendant, Sam Ayoub and others in combination with other evidence relied upon by the prosecution. In bold type and italicised are the bets placed by the first defendant at the TAB agencies at Rozelle and Haberfield the subject of charge. The first defendant also placed other multi bets, which included the Cowboys scoring a penalty goal as the first score with Luxbet, another betting agency. They are noted in bold type only). 18.8.10 8.47pm Jai Ayoub places a $200 three leg multi bet through his Luxbet account. 19.8.10 12.22pm Jai Ayoub places a $20 six leg multi bet and a $300 stand alone bet at the Riverwood TAB. 12.36pm Brad Murray places a $300 three leg multi bet at a Hotel in Homebush (on Mr Ayoub's behalf as with all bets placed by him). 1.04pm Brad Murray places a $250 five leg multi bet at a hotel in Flemington. 1.14pm Brad Murray places a $250 four leg multi bet back at the hotel at Homebush 2.33pm The first defendant calls Sam Ayoub but appears not to have connected. 2.35pm the first defendant places six $500 five leg multi bets at the Rozelle TAB. 2.45pm The first defendant calls Sam Ayoub and is connected for 47 seconds. 2.46pm The first defendant places a bet of $100 with Luxbet. 2.49pm The first defendant places $100 nine leg multi bet with Luxbet. 3.15pm The first defendant places $100 bet. 3.20pm The first defendant places $100 bet. 3.21pm The first defendant places a $50 five leg multi bet at Haberfield TAB. 3.53pm Sam Ayoub calls the first defendant and is connected for 31 seconds. Between 4pm and 4.30pm Sam Ayoub sends a text message to Ryan Tandy. 4.57pm Sam Ayoub places a stand alone bet for $90 through his TAB account. 6.01pm The first defendant places two $500 five leg multi bets at Haberfield TAB. 6.05pm Sam Ayoub places a bet of $300 and $200 stand alone bet with UniTab in Townsville. 6.12pm Hassan Saleh places a $400 two leg multi bet at a hotel in Randwick. 6.33pm The first defendant places two $500 five leg multi bets at Haberfield TAB. 7.41pm Liam Ayoub (Sam Ayoub's son) places a $200 two leg multi bet and a $200 single bet. 7.54pm The first defendant makes a 60 second call to Sam Ayoub. 20.8.10 Jai Ayoub placed a $20 bet through his TAB account. 6.02pm Sam Ayoub places two $200 stand alone bets through UniTab in Townsville. Some time after 8pm Tandy contacts Sam Ayoub. 10.31pm The first defendant places a $50 bet with the TAB at the Sackville Hotel in Rozelle. (This bet did not form part of the charge.) 21.8.10 The first defendant places two $100 bets. 2.16pm The first defendant makes a 107 second call to Sam Ayoub. 4.49pm Sam Ayoub contacts the first defendant. 5.36pm Sam Ayoub contacts the first defendant. 5.39pm Sam Ayoub contacts the first defendant. 7.34pm The first defendant makes a four second call to Sam Ayoub. 7.34pm 30 seconds later the first defendant again calls Sam Ayoub and call connects for six seconds. 7.46pm The first defendant sends Sam Ayoub a text message. 7.49pm The first defendant sends Sam Ayoub a text message. 8.17pm Jai Ayoub places a $200 three leg multi bet with Luxbet. 8.35pm The first defendant sends Sam Ayoub a text message. 8.42pm The first defendant sends Sam Ayoub a text message. 41Between 10.23pm on 21 August 2010 and 12.08am on 22 August 2010 there is contact between Tandy's phone and Sam Ayoub's phone five times, each connection lasting less than 15 seconds. Between 10.15pm on 21 August 2010 and 3.05am on 22 August 2010 Tandy places calls and sends text messages to various people, including Hassan Saleh, the second most regularly contacted person in his telephone records. Saleh's phone records reveal that he was in telephone contact with Tandy daily from 8 August 2010 to 2 September 2010. The first defendant also contacted Saleh on 13, 18, 21 and 30 August 2010 and Saleh contacts the first defendant on 22 August 2010 at 3.53pm with the call lasting approximately three and a half minutes. There are other persons in addition to Hassan Saleh (also involved in placing bets on the first scoring points being a Cowboys penalty goal) who are in direct telephone contact with Tandy during this time and who are also in direct telephone contact with the first defendant and each other.
Telephone intercept transcripts 42The prosecution relied upon a number of transcripts of telephone calls involving the first defendant between 3 December 2010 and 4 February 2011. It is not necessary to extract the transcript of the calls in any detail. Relevantly, so far as the prosecution case was concerned, he denied in a number of calls that he was a person who had placed bets on 19 August or that he went to the TAB a number of times to place the same bet. In one call he offered the opinion that a man changing his clothing to go to the TAB has "got something to hide" and he was keen to find out who this person was. (It was not in dispute at the hearing that he was that person.) He also gave different versions across the body of calls as to why he placed multi bets on the first points scored being a Cowboys penalty goal. At first he agreed with the caller he had a "tip"; then he said he heard that the player Jonathon Thurston was not playing and the bet was made because of the potential for this to impact upon the game; then he said that he had heard the game plan for the Cowboys included that they would take a shot for goal if a penalty was awarded early in the game and had placed his bets for that reason. (Mr Henry, the Cowboys' coach, gave evidence that he had no set game plan to include an early penalty goal.) 43The telephone calls were also relied upon by the defence on the basis that they were not only entirely exculpatory but they supported an alternate hypotheses consistent with the first defendant's innocence, namely that he structured the multi bets the way he did not because he was acting on the knowledge that Tandy would set up a penalty goal in front of the Cowboys scoring area, but that he had a "tip" that if a penalty were to be awarded, the game plan was to take a shot at goal. In one phone call he said, "I get tips everywhere. I got a tip and had a bet ...".
Ground 1 - failure to provide adequate reasons for dismissing the information 44There is an abundance of authority that a judicial officer is obligated to provide adequate reasons for a decision and that the failure to do so will constitute an error of law. As Basten JA observed in Workers Compensation (Dust Diseases) Board of NSW v Smith, Munro and Seymour [2010] NSWCA 19 at [136]-[138] this obligation derives from the nature of judicial power and the proper means of its exercise. In Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449, Santow JA (with whom the other judges of the Court of Appeal, Mason P and Sheller JA agreed) said (at [41]): It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings. 45In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 Johnson J cited the paragraph from Stoker extracted above and went on to say: [18] One of the conventional functions of the requirement to give reasons is that a statement of reasons may be necessary to enable a party to exercise a right of appeal or such other rights as the party may have to contest the decision: Pettitt v Dunkley (1971) 1 NSWLR 376, 387, 388; Donges v Ratcliffe (1975) 1 NSWLR 501 at 507; Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 386. The defendant and the prosecutor have a statutory right of appeal to this Court under the Appeal and Review Act arising from the determination of criminal proceedings in the Local Court. [19] It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination: R v Pham [2005] NSWCCA 94 at paragraph 11; R v Thompson (2005) 156 A Crim R 467 at 474-5 (paragraph 32). The provision of concise reasons as required by law will avoid this circumstance occurring. It is necessary that magistrates keep in mind the obligation to provide reasons when determining summary proceedings under s.202 Criminal Procedure Act 1986. 46The collected authorities were considered by Schmidt J in Director of Public Prosecutions (DPP) v Abouali [2011] NSWSC 110 from [5] to [8] and the relevant principles and the rationale underlying the requirement for adequate reasons were most recently reviewed by Johnson J in Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713 at [54] to [65]. 47In summary, the plaintiff submitted that not only did the magistrate's reasons suffer fundamentally from a failure to identify the constituent elements of the offence and the evidence the prosecution relied upon in establishing them, they failed to identify with any clarity the factual and legal issues raised in the proceedings or the legal principles he applied in resolving them. Because of the combined effect of these defects, neither the legal or factual basis of the decision to dismiss the charge was capable of being distilled with sufficient certainty to enable the prosecution to consider whether there was a basis to exercise its statutory right of appeal to challenge the acquittal on substantive legal grounds. 48The critical factual findings that the plaintiff submitted were neither addressed or resolved by the magistrate included: (a) Whether Tandy's actions were deliberate and whether, in combination with other evidence, this allowed for a finding that it was his intention to set up the "exotic" bet option; (b) Whether the first defendant had any knowledge that Tandy was intending to manipulate the game at the time he placed the bets, on 19 August 2010; (c) Whether the unusual spike in betting on the first score penalty goal option which resulted in the NRL market being closed indicated that a group of punters (including the first defendant) had prior knowledge that the game would be manipulated by Tandy; (d) Why the first defendant placed structured multi bets in the manner that he did given he had rarely used multi leg bets before and had not been a person who placed "exotic" bets in the past; (e) The significance, if any, of the first defendant placing bets in different locations in different clothes on the afternoon of 19 August 2010; (f) The significance, if any, of similar (and in most cases) identical bets placed by Jai Ayoub, Brad Murray (on behalf of Sam Ayoub), and the first defendant, in light of the evidence of Mark Phillips (apparently accepted by the magistrate) that the odds of Jai Ayoub, Sam Ayoub,and the defendant all coming to separate conclusions which led them to place these bets were "astronomical"; and (g) the reasons why Mr Murrihy's evidence to the same effect was apparently rejected. 49Senior counsel for the first defendant did not submit that the reasons for decision were structured so that the constituent elements of an attempt to obtain a financial advantage by deception were obvious or the admissible evidence bearing upon proof of those elements identified. On any reading of the reasons for decision that much is gainsaid. Counsel also accepted that the magistrate did not set out in any structured or logical way the evidence bearing upon proof that the game was in fact manipulated by Tandy, or make clear whether he was satisfied that fact was proved to the criminal standard as an intermediate fact indispensible to reasoning towards an inference of guilt (see Shepherd v R [1990] HCA 56; 170 CLR 573). On my reading of his Honour's reasons, the closest he came to a finding on that issue was a series of qualified comments as follows: The Prosecutor, when he opened to me on Monday, said that this case was going to be a circumstantial case. That, in effect, it looked like some form of match fixing and that somebody, and we don't know who that somebody was, had organised for a betting spree of some sort would occur in relation to a penalty that was going to be awarded and that the Cowboys would convert or kick a goal and that was the plan, supposedly. (Emphasis added) He went on to say: What happened of course is that the penalty was awarded and, contrary to what was supposedly happening, and I use that term "supposedly" in inverted commas, instead of a penalty goal in front of the posts this man Watts, who wasn't located for the course of being presented as a witness but eventually he was found and, by consent, his statement went into evidence, and his coach I think described him as an impulsive player, somebody hard to control but instead of the goal he did a tap and the Cowboys scored a try... (Emphasis added) 50Finally, counsel accepted that the magistrate did not set out in any structured or logical way the evidence relevant to proof of the defendant's knowledge of the fact that the game was "fixed" or whether that element of the offence was proved beyond reasonable doubt. 51In criminal proceedings dealt with summarily a magistrate's failure to identify the elements of an offence; to deal with the issues in dispute and to articulate the legal principles by which disputes about the evidence have been considered and resolved, would ordinarily constitute an error of law undermining the integrity of an order either dismissing the charge or finding it proved. The magistrate's failure in this case to structure the reasons for decision by reference to the elements of the offence and/or the evidence relied upon in proof of them might not, of itself, have rendered the reasons inadequate if the basis upon which he dismissed the information was otherwise adequately revealed by his reasons for decision and if the specific findings critical to that decision were pellucid (see Stoker). 52The question is whether the magistrate's reasons meet that minimum standard. 53Counsel for the first defendant sought to defend the adequacy of the magistrate's reasons on the basis that on a fair reading of them it was clear that although his Honour did not address the question whether the first defendant's placement of bets on 19 August 2010 constituted acts towards the commission of the offence going beyond mere preparation (see the authoritative formulation for an attempt in R v Mai (1992) 26 NSWLR 371 at 381), he apparently accepted the proposition, advanced by defence counsel in final submissions, that there could be no attempt to commit the offence of obtaining a financial advantage by deception unless the first defendant not only won the first leg of the multi-bet but also each of the other four legs. In the result, in reasoning to the conclusion that in the absence of any evidence of the result of the other legs, let alone any evidence that the defendant had inside knowledge of or influence over those results, he was justified in concluding that the prosecution must fail. 54The following passages were relied upon by counsel as reflecting that process of reasoning. After noting that the first leg of the multi bet failed (because of the impulsive play of Watts in tapping the ball and a try resulting, outlined in [9] above). The magistrate said: ...So the first leg of the betting that was put on by Mr Elias, and it was a multiple bet, didn't eventuate. As I am told by the experts who I've heard from and Mr Phillips is the one that I am relying upon, he says that a multiple bet or a multi bet is a bet where more than one selection is nominated, all selections must win for the bet to be a winner. Here of course the whole of this evidence, the evidence that's before me, has focused wholly and solely on this first incident - on this first leg of the bet. The other four legs of the bet are there as part of the proceedings but no one, absolutely no one, has put before me anything that faintly resembles what the outcome of that was going to be. 55Later in his reasons, after reflecting upon the first defendant's betting activities and offering the comment that the amount wagered on 19 August 2010 was not unusual (but without making any finding as to whether the form and structure of the multi bets were unusual) he said: ...A concern that I have with this particular case is this. There is a good reason why the police proceeded against Mr Elias but the reality is, at the end of the day when you look at the situation, the bet itself was a multiple. There were a number of contingencies that had to be played out. The first leg didn't eventuate and there is no evidence whatsoever to support anything as to what was going to happen with the other legs. Now in the absence of anything that would suggest that he was on a winner for the rest of those, or did in fact get up on those, that becomes a problem for the prosecution. I have heard of a number of other individuals who were involved in this venture, if I could use that term, Mr Ayoub and Mr Tandy. Ideally, it seems to me, from what I know of this particular case now, the matter would have been run a lot better, a lot easier and probably more successfully had they been charged with conspiracy. All the evidence against the others would have been admissible. At the end of the day, what I have in front of me is evidence that's been put before this Court and notwithstanding there is a link between Ayoub, Tandy, Watts because Ayoub was the manager of both of them, the reality is the first leg didn't eventuate, I know nothing of the other legs. In those circumstances I think Mr Driels is right in putting the argument that he has and going back to where we started with the prosecutor on Monday. 56He then concluded by saying: As a circumstantial case I have to be certain beyond a reasonable doubt that there is no other reasonable hypothesis. I think the prosecution has to fail in the circumstances. 57In responding to the submission that on this analysis the magistrate's reasons for decision were adequate, the plaintiff's counsel was conscious of the need to resist prosecuting the appeal by reference to flawed reasoning or factual findings unsupported by the evidence (of which he submitted there were many), even if they might amount to errors of law susceptible to review under the Act. That said, he submitted that irrespective of the fact that there was evidence of the composition of the multi bets and the result of each leg, and irrespective of his Honour's suggestion that the actions of the first defendant fell short of an attempt on the grounds that the other four legs of the multi bet were not the subject of manipulation (which the plaintiff submitted was wrong as a matter of law in any event), because the magistrate made no reference to the law of attempt or how it applied in the context of the charge as particularised, it was a matter of speculation as to whether this was the reason the charge was dismissed. Because his decision was ultimately expressed to be on the basis that there was another reasonable hypothesis for the first defendant's activities (although, again, there was no identification of what it was and how it was left unanswered by the evidence) there was an additional source of ambiguity in his Honour's reasons for dismissing the information. 58On either reading, so it was submitted, the reasoning was inadequate amounting to legal error. I accept that submission. 59While that would be sufficient to uphold the first ground of appeal, it is appropriate that I address, albeit in brief, the plaintiff's criticism of the way his Honour dealt with the expert evidence. 60The evidence of the experts was admitted provisionally over the objection of defence counsel early in the proceedings on the expectation that the question of its admissibility would be determined when the prosecution had led all its evidence. The magistrate did not, however, ultimately resolve whether the evidence of either expert would be admitted in whole or in part, still less provide any reasons for the way he dealt with their evidence in his reasons for decision. Although he said he relied expressly upon the evidence of Mr Phillips as to what constituted a multi bet and that all legs had to win before any winnings were paid, it is unclear whether he accepted, and admitted, Mr Phillips' evidence, summarised in [30] and [31] above, on the question whether the game was manipulated and whether the first defendant had knowledge of it. The failure to deal with Mr Phillips' evidence, or deal explicitly with those two issues to which his evidence was material, coupled with his treatment of the evidence of Mr Murrihy, provides an additional basis for upholding the first ground of appeal. 61In dealing with Mr Murrihy's evidence he said: Now I have heard from a number of experts. Mr Murrihy of course was objected to by Mr Driels, who appears for the defendant and, as part and parcel of his evidence, he paints a picture that is somewhat scathing I think of the game, if I could use that term, because what the allegation is, is that there was a fix of some sort here and at paragraph 16 of Mr Murrihy's statement he says this: "Traditionally with betting operators the bet option for a first score penalty goal [which is the subject of these proceedings] attracts relatively minimal interest. In the past two seasons the Cowboys fixture only on one occasion has the first score been a penalty goal. Tabcorp the holding per fixture on this bet is quite limited but it's not unknown, it has happened. In my experience ... for a betting sting involving the first score penalty goal to be successful it requires the acquiescence of the player from the side bet against, to give away the penalty close to a goal and ideally the acquiescence of the playmaker of the side wagered on to elect to take the penalty kick. To give absolute certainty to the success of the sting it would also be desirable to have the acquiescence of the captains of both teams to ensure from kick off the ball is at the right end of the ground and in the right position in proximity to the goal for the team to bet upon to score for a penalty kick." So the way Mr Murrihy sees the state of play, everybody is involved. Now from the evidence that's fallen from the respective witnesses, that hasn't been supported. That really hasn't been supported and even though Mr Murrihy's an expert in thoroughbred racing and the field of betting there, I am not sure that he can help me very much with what is here, but he has an opinion which he can keep to himself as far as I am concerned. 62Despite the magistrate's trenchant criticisms of Mr Murrihy (which the plaintiff submitted were based upon a misunderstanding of his evidence in any event), his Honour did not address the admissibility of Mr Murrihy's evidence either in whole or in part. It is entirely unclear whether in saying that Mr Murrihy "has an opinion which he can keep to himself" (a comment which was wholly inappropriate when an expert's evidence is under consideration or when its admissibility is being ruled upon) he was making a finding concerning Mr Murrihy's credibility, or that his opinion exceeded his expertise or that it lacked probative value or for some other reason. 63In Director of Public Prosecutions v Elskaf [2012] NSWSC 21 at [57] Garling J held that "[t]he mere statement that a witness' evidence was unreliable, without any analysis as to why that was so ... is not sufficient to discharge a magistrate's judicial obligation to give reasons". Although His Honour's observations at [60] as to the possible bases for rejecting a witness' evidence concern the evidence of a lay witness, with some necessary modification, they have equal application where the evidence of an expert is under consideration.
Ground 2 - Failure to inform himself of the substance of evidence before rejecting the tender of it 64This ground of appeal concerned what the plaintiff submitted was the magistrate's rejection of the tender of a document prepared by Mr Phillips which included, in a tabulated form, the composition of the multi bets placed by the first defendant on 19 August 2010 (that is, the details of each of the five legs of the multi bet). This was said to be in breach of his obligation to ensure that the prosecution, as a party to the proceedings, was afforded procedural fairness in the presentation of its case by informing himself of the content of the document before rejecting the tender of it Director of Public Prosecutions v CAD [2003] NSWSC 196 at [42]. The affidavit of Senior Sergeant Stephen Watson, the police prosecutor in the lower court, detailed the circumstances in which he sought to tender the document (annexure A to his affidavit). 65Counsel for the first defendant submitted that on one view of the exchanges with the prosecutor the magistrate admitted both of the annexures to Mr Phillips' statement over objection (albeit somewhat dismissively with the comment, "It's going to go in for what it's worth, because I've already got that before me") and accordingly the factual premise upon which the second ground of appeal depends is not made out. I am satisfied that the better view is that the tender of the document was rejected by the magistrate in the mistaken belief that the information in it was already in evidence in a document prepared by another witness. Counsel submitted that it was the responsibility of the prosecutor to make the magistrate aware of the differences between the two documents and to press the tender. In any event, so it was submitted, the difference between the two documents was marginal. 66There is some force in both submissions. For that reason, and where some doubt persists as to whether the conduct of the magistrate constituted a denial of procedural fairness (as distinct the prosecutor's submission at the point of tender lacking clarity and the magistrate failing to appreciate the somewhat subtle difference between the two documents), were the first ground of appeal to have failed I would not have allowed the appeal on this ground.
Whether the orders sought by the plaintiff should be made as a matter of discretion 67Senior counsel for the first defendant submitted that in the exercise of the overriding discretion that is enlivened by my finding of legal error, the matter should not be remitted to the Local Court for hearing when, on fresh analysis of the evidence, the charge could not be sustained on either of two alternative bases. 68The first concerns the fact that an attempt to obtain a financial advantage was charged. Counsel submitted that it was open to the magistrate to find the offence not proved because, on the prosecution case, only one of the five football games that comprised the multi bet was tainted and, since the success of the bet was contingent on the results of the remaining four legs over which he had no control or influence, the placing of the bets on August 19 was not sufficiently proximate to the commission of the offence to constitute an attempt. 69The plaintiff's counsel submitted that analysis was fundamentally flawed. Although evidence was led of the incorporation of the four other legs to the multi bet as a feature of the analysis of the bets undertaken by the experts, (options which the prosecution argued were deliberately chosen as very short priced favourites in order to conceal the first defendant's interest in the first leg), the results of those games were irrelevant to the attempt to obtain a financial advantage because the deception related solely to the first leg. Were it otherwise, so it was submitted, the prosecution case would fail even were there concrete proof (perhaps in the form of an admission) that the first defendant knew at the time of placing his bets that Tandy was going to deliberately manipulate the first score and that with that knowledge he intentionally deceived Tabcorp by failing to disclose that knowledge in the expectation of a winning bet. It was further submitted that in charging an attempt the fact that the first defendant did not obtain the financial advantage of a winning wager, for whatever reason, was irrelevant. The results of the other four multi legs could only have been relevant had the prosecution case relied upon proof of his receipt of a financial advantage. 70I am not persuaded that the relief the plaintiff seeks should be refused because the attempt could not be made out as a matter of law. As the plaintiff's counsel emphasised in oral submissions, and despite what were submitted to be factual and legal errors both in the magistrate's repeated reference to and reliance upon the other legs of the multi bet, a rehearing of the charge in the Local Court is the more appropriate forum to consider the evidence relevant to proof of the attempt charged and the applicable legal principles. 71The second basis upon which the order remitting the matter to the Local Court was resisted turns on the element of deception. In this case the question is whether the first defendant was practising a deception on Tabcorp by placing bets on the first scoring option being a penalty goal in the knowledge that Tandy intended to manipulate the play to achieve that result and whether there was a causative link between the deception and the attempt to obtain the financial advantage constituted by the anticipated winning. 72It would appear that little, if any, attention was directed to the element of deception in the lower court or to whether the prosecution could prove the necessary causal link. On the appeal, counsel for the first defendant submitted that the issue of deception is of some consderable controversy, as reflected in the attention given to it in the New South Wales Law Reform Commission Consultation Paper, Cheating at Gambling (March 2011) in Chapter 5, entitled "Review of the criminal law concerned with cheating and other forms of fraud" which preceded the passage of the Crimes Amendment (Cheating at Gambling) Act 2012 amending the Crimes Act to include in sections 193N - 193Q a range of offences directed to prosecuting offenders who seek to fix a betting outcome or to profit from a match or game that has been fixed. 73Counsel submitted that, consistent with the published views of the Law Reform Commission at 5.75 - 5.92 of the Consultation Paper, it strains the concept of deception in s 192E of the Crimes Act, as that term is commonly understood, for it to be sourced in the assumption (by Tabcorp in this case) that in accepting the wager constituted by the first defendant's multi bets, the NRL game would be played accorrding to the rules and by players honestly employing their skill and ability. This in turn, so it was submitted, raises a real question as to whether the element of deception in this case could be proved to the criminal standard. Put another way, the question might be whether in placing the bets the prosecution could prove beyond reasonable doubt that the first defendant was practicing a deception by having Tabcorp accept his wager on the false expectation or assumption that the first scoring point as a penalty goal was a chance outcome (amongst many) as distinct from a fixed result. Further, as counsel submitted, it would be neccesarily implicit in the concept of deception, however particularised, that Tabcorp would not have accpeted the wager were it to have known that the game was to be manipulated and, since there was no evidence of that fact, the prosecution case would fail. 74These are issues of some considerable complexity requiring careful analysis. I am of the view they are also best ventilated in the Local Court on a rehearing of the information, at which time the authorities and the competing arguments can be considered by a magistrate in the context of the evidence relied upon by the prosecution and tested by the defence in an adversarial setting.
Orders 75Accordingly, I make the following orders:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2013
Director of Public Prosecutions (NSW)
Elias
(1992) 26 NSWLR 371
(1987) 10 NSWLR 247
(1991) 21 NSWLR 725
(1997) 48 NSWLR 430
(1971) 1 NSWLR 376
(1975) 1 NSWLR 501
(1983) 3 NSWLR 378