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[2015] WASCA 126
Court of Appeal (WA)
2015-06-19
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DUNN -v- THE QUEEN [2015] WASCA 126
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Conspiracy with the intention of dishonestly causing a loss to a Commonwealth entity - Alleged coconspirator pleaded guilty to the conspiracy charge and was sentenced prior to the appellant's trial - Alleged coconspirator a Crown witness at the appellant's trial - Whether the trial judge failed adequately to direct the jury in relation to the alleged coconspirator's evidence - Whether the trial judge failed adequately to direct the jury in relation to the alleged coconspirator's plea of guilty to the conspiracy charge - Whether a substantial miscarriage of justice
Evidence Act 1906 (WA), s 50
Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632
Bou-Elias v The Queen (No 1) [2012] VSCA 61
Burnett v The Queen (1994) 76 A Crim R 148
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344
Connell v The Queen (No 6) (1994) 12 WAR 133
Cowell v The Queen (1985) 24 A Crim R 47
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497
Evans v The State of Western Australia [2012] WASCA 13
Ferris v The State of Western Australia [2007] WASCA 69
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Moloney v The State of Western Australia [2006] WASCA 193
Napier v The State of Western Australia [2007] WASCA 248
O'Connell v The State of Western Australia [2012] WASCA 96
Power v The Queen [2014] VSCA 146
R v Fountain [2001] VSCA 200; (2001) 124 A Crim R 100
R v Fowler (1985) 39 SASR 440
R v Gallagher [1986] VicRp 25; [1986] VR 219
R v Golding [2008] SASC 68; (2008) 100 SASR 216
R v May [1984] 13 CCC (3d) 257
R v Moore (1956) 40 Cr App R 50
R v Ormond [2012] SASCFC 130
R v White [2003] VSCA 174; (2003) 7 VR 442
R v Windsor [1953] NZLR 83
Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215
Romeo v The Queen [1988] WAR 304
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
White v The Queen [2006] WASCA 62
1 BUSS JA: This is an appeal against conviction.
2 On 8 November 2013, after a trial in the Supreme Court before EM Heenan J and a jury which began on 2 September 2013, the appellant was convicted on one count of conspiracy. He was sentenced to 7 years' imprisonment with a non-parole period of 4 years.
3 The count alleged that between about 15 August 2002 and 17 July 2004, at Perth and elsewhere, the appellant, Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace conspired with each other and with Trevor Neil Thomson, with the intention of dishonestly causing a loss to a Commonwealth entity, contrary to s 135.4(3) of the Criminal Code (Cth) (the Code). The relevant Commonwealth entity was the Federal Commissioner of Taxation.
4 The appellant, Mr Bartlett, Mr Sayers and Ms Grace were tried together in a joint trial. The jury found Ms Grace not guilty. The jury was unable to reach a verdict in the cases of Mr Bartlett and Mr Sayers. As I have mentioned, the appellant was convicted.
5 The appellant was self-represented at the trial. The other accused were separately represented by senior and junior counsel.
6 The fifth co-conspirator nominated in the count, Mr Thomson, pleaded guilty on 6 May 2010 to a charge of conspiracy similar to that pleaded in the trial indictment. The charge against Mr Thomson alleged that between about 15 August 2002 and 30 June 2003, at Perth, Mr Thomson conspired with the appellant and 'divers others', with the intention of dishonestly causing a loss to the Commonwealth, contrary to s 135.4(3) of the Code.
7 On 13 May 2010, McKechnie J sentenced Mr Thomson to a term of imprisonment for the offence to which he had pleaded guilty.
8 The Crown called Mr Thomson as a witness at the trial of the appellant, Mr Bartlett, Mr Sayers and Ms Grace.
9 An overview of the Crown's case at trial is as follows.
10 At all material times, the appellant was a businessman with very substantial knowledge of and practical experience in taxation law and accounting. He did not have any formal qualifications. The appellant promoted taxation schemes which he largely designed. The purpose of the schemes was to avoid or reduce the incidence of taxation.
11 Each of Mr Bartlett and Mr Sayers was a very successful and wealthy businessman. They jointly controlled and operated a mining resources company, Barminco Pty Ltd, which later became a public company, Barminco Ltd (Barminco). The company acted as trustee of the Barminco Unit Trust (BUT). Fifty per cent of the beneficial interest in BUT was held directly by a company, Bremerton Pty Ltd (Bremerton), controlled by Mr Bartlett. The other 50% of the beneficial interest was held indirectly by a company, Nebraska Pty Ltd (Nebraska), controlled by Mr Sayers. Bremerton acted as trustee for a discretionary trust, the PM Bartlett Family Trust (the Bartlett Family Trust). Nebraska also acted as trustee for a discretionary trust, the RG Sayers Family Trust (the Sayers Family Trust).
12 Mr Bartlett and Mr Sayers were concerned about the amount of taxation payable on the profits of BUT. Barminco distributed the profits equally to Bremerton as trustee of the Bartlett Family Trust and Nebraska as trustee of the Sayers Family Trust. Each of Bremerton and Nebraska distributed its share of the profits to the ultimate beneficiaries.
13 Mr Thomson was an accountant who acted for Mr Bartlett and Mr Sayers and various entities they controlled.
14 Ms Grace was an accountant who was employed by Mr Thomson's firm, Thomson Fisher & Co.
15 Mr Thomson introduced Mr Bartlett and Mr Sayers to the appellant who claimed to be a specialist in taxation affairs.
16 The appellant advised that an arrangement, which became known as the 'Appointor Arrangement', was capable, if implemented, of reducing significantly the amount of taxation payable on the profits of BUT that were ultimately distributed to various beneficiaries of the Bartlett Family Trust and the Sayers Family Trust. After taking independent legal advice on the matter, Mr Bartlett and Mr Sayers decided to implement the Appointor Arrangement. They did so. The Appointor Arrangement involved the appellant, through entities he controlled, participating in a distribution of the profits of BUT. The Appointor Arrangement related to the taxation years ended 30 June 2000 and 30 June 2001.
17 The Crown did not allege, as part of its case, that the Appointor Arrangement was illegal, fraudulent or dishonest. The Appointor Arrangement was, however, subsequently disregarded by the Federal Commissioner of Taxation pursuant to pt IVA of the Income Tax Assessment Act 1936 (Cth). Neither the Appointor Arrangement nor its subsequent treatment by the Federal Commissioner constituted or was an element of the offence with which the appellant was charged and convicted.
18 The offence with which the appellant was charged and convicted related to an agreement to implement, and the implementation of, an arrangement which at trial was called the 'False Interest Scheme' (FIS). The FIS involved, in essence, a false and fraudulent pretence that a particular transaction had been entered into in June 1999 in relation to BUT and that the transaction related to the taxation year ended 30 June 1999.
19 The transaction involved the issue of 79.9 million special units in BUT to Bremerton and Nebraska as beneficiaries of BUT. According to the FIS, these special units were $1 units paid to 0.01 cent per unit with the unpaid amount (that is, 99.99 cents) being payable at a later date or dates. Interest was payable to Barminco on the unpaid amount at the rate of 9% per annum. The interest was payable in advance in respect of the 1999 taxation year. However, by the terms of issue of the special units and under the accounting arrangements for BUT, that interest was receivable by BUT, and therefore part of its assessable income, only in the next year, namely the 2000 taxation year.
20 The purported effect of the FIS was to create allowable deductions, namely interest payments, in the aggregate amount of about $7.19 million, which deductions were shared equally between Bremerton and Nebraska.
21 At trial, the evidence revealed that, in fact, no part of the FIS (including the issue of the special units) had occurred before 30 June 1999.
22 The Crown case was that a number of documents were prepared between July 2002 and September 2002 which falsely recorded that the issue of the special units had been made, and the related payments (including the interest payments) had occurred or should be treated as having occurred, in the 1999 taxation year.
23 Documents which created the false record were presented at a meeting allegedly attended by the appellant, Mr Thomson, Mr Bartlett, Mr Sayers and, possibly, others in September 2002. The documents were signed as if they were true.
24 In the result, amended income tax returns were filed for BUT, Bremerton, Nebraska and a number of other beneficiaries of the Bartlett Family Trust and the Sayers Family Trust. The other beneficiaries of the Family Trusts received, through Bremerton and Nebraska, amounts in respect of the non-existent issue, before 30 June 1999, of the special units. The consequence was to achieve a substantial reduction in the income tax liability of the ultimate beneficiaries for the 1999 taxation year.
(a) who was present at the meeting or meetings when the documents relating to the FIS were signed; and
(b) whether the signatures on the documents, which appeared to be those of Mr Bartlett and Mr Sayers, were in fact their signatures.
(a) whether, if the documents relating to the FIS were in fact signed by Mr Bartlett and Mr Sayers, either of them signed the documents without realising their contents or significance, but merely on the assurance of the appellant, further or alternatively Mr Thomson, that the documents were accurate and appropriate for them to sign; and
(b) whether, if the documents relating to the FIS were in fact signed by Mr Bartlett and Mr Sayers, either of them signed the documents because of a false representation by or assurance from the appellant, further or alternatively Mr Thomson, that the documents were merely replacements of original documents that were in fact signed in June 1999, but had subsequently been lost accidently.
27 The Crown's case at trial was that the appellant had devised the FIS in August 2002 as a means of fraudulently reducing the declared income of the Bartlett Family Trust and the Sayers Family Trust for the 1999 taxation year and that the appellant procured Mr Thomson to prepare false backdated minutes of meeting evidencing the issue in June 1999 of the special units in BUT.
28 The Crown further alleged that the appellant explained the FIS to Mr Bartlett and Mr Sayers and the perceived necessity for the FIS to 'protect' the Appointor Arrangement which had already been implemented.
29 It was also alleged that the appellant enlisted Mr Bartlett and Mr Sayers to participate in the FIS and that Ms Grace had knowingly assisted in the implementation of the FIS.
30 The Appointor Arrangement involved the 'sale' of the office of Appointor under each of the Bartlett Family Trust and the Sayers Family Trust to an entity controlled by the appellant. The appellant was to receive 10% of the sale price as a commission for his role in creating and implementing the scheme. The appellant was to pay any taxation assessed in connection with the arrangement.
31 According to the Crown, in late 1999 or early 2000, the appellant had the first of a number of meetings with Mr Thomson, Mr Bartlett and Mr Sayers. At the first meeting, the appellant explained to Mr Bartlett and Mr Sayers the features of the Appointor Arrangement.
32 The initial proposal was for the offices of Appointor to be sold for a total of $27 million with an additional $3 million being payable to the appellant as a commission. The 'sale' was to be for a period of two years. Later, the total amount of the sale price was increased from $30 million to $50 million.
33 The appellant promised to pay $500,000 from his commission of $5 million into a 'fighting fund' to be established for the purpose of defending any action taken by the Federal Commissioner of Taxation in respect of the Appointor Arrangement.
34 Solicitors acting for Mr Bartlett and Mr Sayers, and relevant entities controlled by each of them, sought advice from Mr RK O'Connor QC in connection with the Appointor Arrangement. In a written opinion dated 24 March 2000, Mr O'Connor described the Appointor Arrangement as follows:
Essentially, the proposal is as follows. Mr P M Bartlett and Mr R G Sayers have been, and are, the Appointors of the two family trusts, respectively. [Namely the P M Bartlett Family Trust of which Bremerton Pty Ltd is the trustee and the R G Sayers Family Trust of which Nebraska Pty Ltd is the trustee.] Both those trusts were created on 4 September 1985, before capital gains tax became effective on 20 September 1985. What is under contemplation is that Messrs P M Bartlett and Sayers will resign their offices as Appointors of the two family trusts in consideration for payment of $27 million. By virtue of the reasons discussed below, including that Messrs P M Bartlett and Sayers have been Appointors since before the enactment of the capital gains tax legislation, it is suggested that that $27 million will not be taxed. The New Appointor (Timebase Investments as trustee of the Corpex Trust) to both family trusts will pay the $27 million to Messrs P M Bartlett and Sayers as the cost price of attaining those offices as part of a profit-making undertaking or plan so that that cost should be deductible in the calculation of the profit on realisation in the profit-making undertaking or plan. It is proposed that the New Appointors will have distributed to it from the P M Bartlett Family Trust and the R G Sayers Family Trust, over a period of two years, an amount of $30 million. Under the documentation, that New Appointor/beneficiary of the two family trusts will then irrevocably cease to have any entitlement to further income from the two family trusts and that cessation is to be the realisation or finalisation of the profit-making undertaking or plan in which the $27 million should be able to be deducted. Thus, the $27 million received by Messrs P M Bartlett and Sayers is sought to be received as a non-taxable amount, yet that $27 million paid by the New Appointor/beneficiary is sought to be allowed as a deduction against the $30 million income received under the profit-making undertaking or plan.
35 Mr Bartlett and Mr Sayers agreed to enter into the Appointor Arrangement.
36 A deed of appointment was prepared by which Mr Bartlett and Mr Sayers, in their capacity as the existing Appointors and in exercise of powers conferred on them under the trust deeds, appointed Timebase Investments Pty Ltd (Timebase) as trustee of the Corpex Trust, a company controlled by the appellant, as Appointor of their respective Family Trusts. The deed also set out that Mr Bartlett, Mr Sayers, Bremerton and Nebraska anticipated that the net income of BUT would be $50 million and that Timebase (as, in effect, the appellant's nominee) would receive a commission of $5 million. The parties to the deed were Mr Bartlett, Mr Sayers, Timebase, Bremerton and Nebraska. The deed was dated 16 May 2000 and was executed by the parties.
37 The transfer or distribution of funds under the Appointor Arrangement was effected by the drawing, endorsement and delivery of promissory notes. The appellant and his entities were not actually to pay or receive any money under the Appointor Arrangement, except for the receipt of the commission.
38 In 2001, Mr Thomson was contacted by officers from the Australian Taxation Office (ATO) in relation to the Appointor Arrangement. In early October 2001, the appellant and Mr Thomson met with the ATO officers. The appellant told them that he had legal opinions which verified the efficacy of the Appointor Arrangement. At that time, the ATO decided not to proceed with an investigation.
39 According to the Crown, the appellant and Mr Thomson were alarmed by the interest of the ATO officers in the Appointor Arrangement. If the Federal Commissioner of Taxation disregarded the Appointor Arrangement for taxation purposes, there would be very serious financial consequences for Mr Bartlett and Mr Sayers or entities they controlled.
40 The Crown alleged that in late October 2001 there was a meeting at Mr Thomson's office attended by the appellant, Mr Thomson, Mr Bartlett and Mr Sayers. It was alleged that at the meeting there was a discussion about the inquiries by the ATO officers and distributions under the Appointor Arrangement.
41 The Crown alleged that, as a result of the inquiries by the ATO officers, the appellant decided that the promissory notes should be 'protected'. The appellant suggested to Mr Bartlett and Mr Sayers that they acquire an overseas company and arrange for that company to hold the promissory notes. In November 2001, the appellant, Mr Thomson and Mr Sayers met with Philip Egglishaw, a principal of a company called Strachans SA, in Melbourne in connection with the acquisition of a suitable overseas company. In February 2002, the appellant, Mr Thomson and Mr Bartlett met with Mr Egglishaw in Perth. In May 2002, the appellant, Mr Bartlett and Mr Sayers travelled to Singapore to make arrangements for the acquisition of the overseas company. Mr Bartlett and Mr Sayers then acquired the overseas company, Crossline Overseas Ltd (Crossline).
The deterioration of relations between Mr Thomson on the one hand and Mr Bartlett and Mr Sayers on the other
42 According to the Crown, between 10 April 2000 and 16 May 2000, the appellant told Mr Thomson that he would pay Mr Thomson's firm 20% of the $5 million commission he was to receive under the Appointor Arrangement. The appellant proposed that he would contribute 70% and Mr Thomson 30% of the $500,000 to be deposited in the 'fighting fund'. Mr Thomson agreed to the appellant's proposal.
43 The Crown alleged that in May 2002 relations between Mr Thomson, on the one hand, and Mr Bartlett and Mr Sayers, on the other, deteriorated. During the trip to Singapore, the appellant informed Mr Bartlett and Mr Sayers that he had given some of his commission to Mr Thomson. Mr Bartlett and Mr Sayers had not previously been aware of that fact or of the agreement between the appellant and Mr Thomson in relation to the commission.
44 According to the Crown, the appellant also revealed to Mr Bartlett and Mr Sayers, while they were in Singapore, that Mr Thomson had not lodged an income tax return for Barminco for a lengthy period, apart from the return for the taxation year ended 30 June 1998 which had been finalised by Ms Grace and lodged on 21 February 2002.
45 The Crown alleged that after they returned to Perth from Singapore, Mr Thomson and his partner, James Fisher, attended a meeting at the offices of Barminco. There was discussion about, amongst other things, the delay in the preparation and lodgement of income tax returns. Mr Bartlett and Mr Sayers told Mr Thomson they were dissatisfied with his performance.
The identification of Barminco's profit for the 1999 taxation year and the 'problem' it presented
46 In about June 2002, Ms Grace was seconded from Thomson Fisher & Co to Barminco for the purpose of bringing all taxation matters relating to Mr Bartlett and Mr Sayers, and the entities they controlled, up to date. One of Ms Grace's first tasks was to prepare Barminco's income tax return for the 1999 taxation year. At the time Mr Thomson believed, erroneously, that there was no profit to be distributed for that year.
47 The culmination of Ms Grace's work in preparing Barminco's income tax return for the 1999 taxation year was the preparation of a taxation reconciliation. This revealed that Barminco had in fact derived a net profit of $7,084,170. Mr Thomson saw the taxation reconciliation when he returned to work from leave in late August 2002.
48 The Crown alleged that, after being given details of the taxation reconciliation carried out by Ms Grace, the appellant told Mr Thomson that the net profit may cause a 'problem' with the Appointor Arrangement because of the 'pattern of distribution'. The appellant conceived of the FIS as a method of eliminating the 'problem' by reducing the net profit to nil.
The documentation of the 'issue' of the special units in BUT pursuant to the FIS
49 The documents of importance at trial in relation to the FIS included undated handwritten notes entitled 'Special Units' (exhibit 12), undated typewritten notes entitled 'Special Units' (exhibit 13), a typewritten document setting out a purported resolution of unitholders of BUT at a meeting purportedly held on 14 June 1999 (exhibit 95) and a typewritten document setting out a purported resolution of unitholders of BUT at a meeting purportedly held on 16 June 1999 (exhibit 96).
50 The typewritten notes reproduced, with minor variations, the handwritten notes.
52 The documents setting out the purported resolutions were signed on behalf of Nebraska, Bremerton and another company, Laurinay Pty Ltd as trustee of the AP Bartlett Family Trust. One resolution purported to evidence the allotment of 100,000 fully paid special units and the terms of the allotment. The other resolution purported to evidence the allotment of the 79.9 million partly paid special units and the terms of the allotment.
Ms Grace's resignation as an employee of Thomson Fisher & Co
53 On or about 24 September 2002, Ms Grace resigned her employment with Thomson Fisher & Co. In a letter dated 24 September 2002 (exhibit 15) she said her decision to resign was 'as a result of what seems to be deviations from accepted accounting and taxation practices that appear to have been used by Thomson Fisher & Co'.
54 Mr Thomson cooperated with the authorities in their investigations. He admitted that the documents relating to the FIS were, in fact, false and backdated. They had not been executed or signed in June 1999. Mr Thomson provided full details of his knowledge of the FIS, including the appellant's alleged activities, to the authorities. He agreed, if required, to give evidence for the Crown at the trial of others charged or to be charged.
55 When he was sentenced by McKechnie J, Mr Thomson's past and promised future cooperation were taken into account and resulted in a substantial sentencing discount.
56 Neither the appellant nor any of the other accused disputed at trial that the FIS was in fact fraudulent.
57 Neither the appellant nor any of the other accused gave evidence at trial.
58 The appellant did not adduce any evidence (ts 3232).
59 The appellant's case at trial has to be deduced from his opening and closing addresses to the jury and his cross-examination of witnesses.
So before, about a month and a half, two months before this so-called alleged conspiracy, I had sacked Mr Thomson as my accountant for incompetence and we were barely on speaking terms. So what the prosecution needs to prove to you beyond a reasonable doubt is I intended to and did enter into a conspiracy with a man I had just recently sacked, I was barely on speaking terms with him, and then I'm supposed to have got him to prepare all the conspiracy paperwork, most of which he never showed me, and I'm supposed to have trusted him to do this notwithstanding the reason I sacked him was incompetence. That's what they've got to prove to you (ts 1003).
61 The appellant did not expressly contend, either in his addresses to the jury or in his cross-examination, that he did not devise the FIS. Nor did the appellant expressly suggest that it was Mr Thomson who devised the FIS.
62 Rather, the appellant disputed Mr Thomson's evidence that the appellant had given Mr Thomson drafts of the false backdated minutes of meeting, containing the purported resolutions, which Mr Thomson had instructed his secretary, Sherryl Paternoster, to type.
63 At the hearing of the appeal, the court requested counsel for the appellant to summarise concisely the nature of the appellant's defence at trial (appeal ts 9).
64 Initially, counsel for the appellant said that 'the heart of [the appellant's] case' was 'probably best articulated' in three questions the appellant put to Mr Thomson in cross-examination (appeal ts 9). The relevant passage in the trial transcript reads:
I put it to you that you attended a meeting after 4 September 2002 but before 30 September 2002 with at least yourself, myself, Mr Bartlett, Mr Sayers and Ms Grace in attendance. What do you say about that?---I recall a meeting with yourself, myself, Mr Bartlett and Mr Sayers but I'm not sure whether Ms Grace attended that meeting.
Thank you, Mr Thomson. I put it to you that at that meeting you presented two executed photocopies of the unit holder resolutions that you have said in testimony were typed by [your secretary, Ms Paternoster]. What do you say about that?---At no stage did I present photocopied minutes to that meeting.
Do you recall stating at that meeting, unit holder resolutions had been lost or misplaced by you at the same time you lost four promissory notes made by the Barminco Unit Trust?---No. I did not make that statement (ts 1928).
65 Next, counsel for the appellant told this court that the appellant's defence at trial was that 'the documents relied upon, the resolutions, weren't created by him' (appeal ts 10). They were created by Mr Thomson and Ms Paternoster (appeal ts 10).
66 Later, counsel for the appellant referred this court to the following passage in the appellant's closing address:
Now, ladies and gentlemen of the jury, from the little bit that you've observed of me through this trial, do you believe beyond a reasonable doubt that I would enter into any meaningful agreement with Mr Thomson at all, let alone enter into an agreement to create false unit holder resolutions or be part of a criminal conspiracy when I just terminated his services, I was unhappy and angry with him and our relationship was cold. I terminated his services for conduct that wasn't illegal. And then it's alleged that I almost immediately entered into illegal conduct with him. I suggest to you, ladies and gentlemen of the jury, that's just not believable at all. Let alone believable beyond a reasonable doubt (ts 3914).
67 Counsel for the appellant said that passage was 'probably a distinct summary of [the appellant's] defence, if I can put it that way' (appeal ts 12).
69 Ground 1 alleges that a miscarriage of justice occurred at the trial because his Honour failed adequately to direct the jury 'as to the special scrutiny with which to consider Mr Thomson's evidence, Mr Thomson being an alleged co-conspirator'.
70 Ground 2 alleges that a miscarriage of justice occurred at the trial because his Honour failed adequately to direct the jury 'as to the use they could make of Mr Thomson's guilty plea'.
71 On 15 June 2014, Mazza JA referred the application for leave to appeal on these grounds to the hearing of the appeal.
Ground 1: counsel for the appellant's submissions
(a) As an alleged co-conspirator, Mr Thomson was, by analogy to an accomplice, within 'a traditionally suspect class of witness'.
(b) Mr Thomson had a strong incentive to implicate the appellant, as well as the other accused, in the offending.
(c) Mr Thomson, in giving evidence as a Crown witness, was fulfilling his promise of future cooperation.
(d) In the circumstances, Mr Thomson's evidence required a corroboration warning.
(e) The trial judge's directions to the jury 'did not address the risk that the jury might not appreciate the danger in finding the appellant guilty based on Mr Thomson's evidence alone, especially having regard to the fact that it was Mr Thomson's evidence that went to establish that the appellant had explained the concept of the offending at a meeting with the co-accused and that the appellant had falsified draft minutes relating to the offending for Mr Thomson to finalise'.
(f) Although his Honour gave a 'general direction' to the jury regarding Mr Thomson's evidence, the jury should have been warned against convicting the appellant or any of the other accused based on Mr Thomson's evidence alone.
Ground 1: counsel for the Crown's submissions
73 Counsel for the Crown submitted that Mr Thomson's position, as a convicted person, was made clear to the jury from the commencement of the trial, and the trial judge's directions to the jury in his summing up about how it should approach Mr Thomson's evidence were 'clear, more than adequate and in accordance with the approach agreed to by all parties'.
74 The appellant told the jury in his opening address that:
(a) the Crown's case 'revolve[d] almost entirely around one person's version of the conspiracy', namely Mr Thomson (ts 1000);
(b) if Mr Thomson had not agreed to give evidence at the trial, none of the accused 'would be here today' (ts 1000);
(c) Mr Thomson had previously pleaded guilty to the conspiracy charge and had received 'a reduced gaol sentence on the basis that he would give evidence in this trial' (ts 1000); and
(d) Mr Thomson alleged that the appellant, Mr Bartlett, Mr Sayers and Ms Grace conspired with him to defraud the Commonwealth (ts 1000).
75 Counsel for the other accused did not give an opening address at the trial.
76 At the beginning of Mr Thomson's evidence-in-chief, counsel for the Crown asked him questions about his plea of guilty and his reduced sentence:
I think, Mr Thomson, on 6 May 2010 you pleaded guilty in the Supreme Court to an offence related to your part in the matters that are the subject matter of this trial; is that correct?---Yes.
And you were sentenced to a term of imprisonment; is that correct?---Yes.
And you were given a reduction in your sentence pursuant to a particular section of the Commonwealth Crimes Act; is that correct?---Yes.
And that was by reason of your agreeing to give evidence in any trial or proceeding relating to the subject matter of the offence to which you pleaded guilty?---Yes (ts 1503 - 1504).
77 On 18 October 2013, the trial judge raised with the appellant and counsel for the other accused, in the absence of the jury, whether there were any issues they wished to raise about the directions ultimately to be given to the jury. The following exchange occurred as to whether an accomplice direction should be given in relation to Mr Thomson:
HEENAN J: I think Mr Hill, you raised the question of an accomplice warning?
HILL, MR: Yes. It may have come from further down the Bar table, your Honour, but we would be submitting that this is not the case where such a direction is necessary.
HEENAN J: Is the reference to be taken to the evidence of Mr Thomson?
HILL, MR: Yes, your Honour.
HEENAN J: Well, there will be a number of reasons to scrutinise Mr Thomson's evidence closely.
HILL, MR: That's so, your Honour.
HEENAN J: Is any party pressing specifically for an accomplice warning to be given in relation to Mr Thomson?
ZICHY-WOINARSKI, MR: Your Honour, we were going to raise that matter this morning. We would be submitting, your Honour, and I'll hand up a copy of the case to your Honour, that an appropriate form of direction is that contained in the decision - and one for Mr Dunn - in the decision of the Court of Criminal Appeal of this State in Foo v The Queen [2001] WASCA 406, your Honour the history of [corroboration] warning section 50 is set out there and the particular form of the warning is set out that was given in the trial and which was approved in that case, is set out at paragraph 23.
And a simple position, your Honour, is that a warning to that effect is what is required in this case ...
HEENAN J: Yes, thank you.
ROBERTS, MR: Your Honour, we did rely on the authority which is far more recent of Santos v The State of Western Australia [No 2] [2013] WASCA 39 (ts 3385 - 3386).
Mr Hill QC appeared for Ms Grace, Mr Zichy-Woinarski QC appeared for Mr Bartlett and Mr Roberts SC was the prosecutor.
78 On 22 October 2013, his Honour said, in the absence of the jury:
The whole question of what warning, if any, should be given to the jury about the credit of Mr Thomson, having regard to individual attacks upon his reliability and credit made in cross-examination and presumably to be developed in final addresses, and whether a formal accomplice warning is needed, I think should await the outcome of the content of the addresses. And again I would be prepared to hear submissions on that once addresses have been concluded and before I direct the jury (ts 3461).
79 Counsel for Mr Sayers submitted, in his closing address, that:
(a) Mr Thomson was, by his own admission, a dishonest man because 'he's agreed by his plea of guilty that he did dishonest acts or intended to do them or did them with the intention of dishonestly causing a loss to the Commonwealth' (ts 3637);
(b) apart from the circumstances of his plea of guilty, Mr Thomson accepted that he was a greedy man: a man who had misled his clients about the commission which he had received from the appellant or his share of the commission (ts 3637);
(c) Mr Thomson was 'unreliable and incompetent and lazy' (ts 3639);
(d) Mr Thomson was 'obviously a person whose word could not be relied on in relation to things that he was doing' (ts 3640); and
(e) Mr Thomson's work for Mr Bartlett and Mr Sayers and their entities was 'slack, negligent [and] self-interested' (ts 3652).
80 Counsel for Mr Sayers argued that Mr Thomson had a very powerful reason, by virtue of the sentencing outcome following his plea of guilty, 'to look for ways that he might be able to provide assistance to the authorities, both before he was sentenced and after [he was sentenced]' (ts 3664). Counsel added that Mr Thomson's subjective belief (which counsel said was 'not quite correct at law') was that if he did not give evidence at the trial 'he might get sent back to gaol' (ts 3664 - 3665). Counsel then said:
So can it possibly be that that sort of thing did not bear heavily on [Mr Thomson's] mind as he went through the process of confessing his role, as he said it was apparently to the authorities, and looking to see what advantage he could get from talking about others?
Part of that must have been, in the context of this case, that while [Mr Thomson] had to concede as it turned out his role up to a point, he had to paint himself in the best possible light so that when he came up for sentence, he'd be able to say, 'Look, it wasn't me, it was Mr Dunn [that is, the appellant]. I didn't do it for my own benefit, I did it for the benefit of my clients', and so forth, and to present the kind of picture that the authorities found credible and attractive and that led to the prosecution of other people, including the people who are here.
So when you consider all these things in relation to him, you would take into account the fact that he has been sentenced in a way which has given him a benefit for assisting the authorities, both in the past and in the future, and that he's a man who's accepted the loss of his own integrity and the loss of honesty and the loss of professional propriety that went with all of his conduct in this matter.
And as a result, I'd suggest you'd find his evidence of what happened at the meeting, just looking at it, as a delivery by the person of a set of circumstances to be so flawed and so incapable of being relied upon that you wouldn't be able to rely upon it for the purposes of your consideration in this case or you would discount it (ts 3665). (emphasis added)
81 The closing address of counsel for Mr Bartlett was generally consistent with the closing address of counsel for Mr Sayers. Counsel for Mr Bartlett referred to 'the vulnerability ... of Mr Thomson's memory' and said that counsel for Mr Sayers had made 'a lot of comments ... and quite a number of criticisms' about Mr Thomson and his memory. Counsel for Mr Bartlett 'adopt[ed] those criticisms' (ts 3768). He then added:
[T]here can be no doubt that Mr Thomson's testimony is based on what is best described as a flawed memory. And you may well think that it's not simply flawed, but it also demonstrates some degree of self-interest to try and play down his role (ts 3768 - 3769).
82 The appellant said, in his closing address, that:
(a) Mr Thomson was 'a man who had something to gain from saying to the Australian Crime Commission [that] "The handwritten versions of these documents [that is, exhibits 95 and 96] were Greg Dunn's"' (ts 3901).
(b) It was unbelievable that he (the appellant) would enter into the alleged conspiracy with Mr Thomson when he had terminated Mr Thomson's services, he was unhappy and angry with Mr Thomson and their relationship was 'cold' (ts 3914).
83 On 30 October 2013, after completion of the closing addresses and in the absence of the jury, counsel for Mr Sayers submitted that his Honour should include in his summing up a warning in relation to Mr Thomson's evidence:
Can I turn to the two points which I raised beforehand which have been left unresolved, and I can deal with them briefly, your Honour. On the earlier occasion, I think there were a bundle of cases including Foo from the Court of Appeal in this State and Jenkins in the High Court were handed up to your Honour in relation to the question of what if anything should be said about Mr Thomson's reliability, given his part in the offence.
And all I would seek to refer to, your Honour, Mr Woinarski [counsel for Mr Bartlett] previously submitted that a direction along the lines of that which ... the learned trial judge gives in Foo, which is extracted in a Court of Appeal decision [2001] WASCA 406, could be adapted to the circumstances of this case, being basically an expression of the factual circumstances of what had happened to the accused taking into account - and there was no accomplice warning in the sense of a corroboration warning, ... the necessity for which has been abolished by section 50 of the Evidence Act of course, but in Foo at paragraph 21, the court quoted Kendrick, a Victorian case saying this:
'The reason which underlies the requirement for the warning - '
- that in [that] case was a discussion of a corroboration warning -
' - stems from the natural tendency for the accomplice to diminish his own responsibility for the crime and offload that responsibility on to other participants in the crime.'
And that's the passage which we say grounds the applicability of a caution given to the jury in this case, not about the need to find corroboration but about the circumstances and the content and the credibility of Mr Thomson's evidence.
Secondly, in Jenkins, there's a passage which if I didn't have due respect for the High Court judges appears to plagiarise Kendrick. It says at paragraph 30, [2004] HCA 57, paragraph 30. I won't read all of it:
'The principal source of unreliability is what is regarded as the natural tendency of an accomplice to minimise the accomplice's role in a criminal episode and to exaggerate the role of others including the accused.'
And that's the kind of warning - caution should I say which in my submission would be applicable to Mr Thomson's evidence in this case in your Honour's summing up (ts 3945 - 3946).
84 The trial judge responded by explaining how he proposed to direct the jury:
As to the so-called Shepherd direction and warnings about the credit of Mr Thomson, by reason of section 50 of the Evidence Act and generally I do not propose to direct that any part of Mr Thomson's evidence requires corroboration.
I will, however, as part of my direction to the jury, give a direction about the need to scrutinise the evidence of all witnesses carefully, and in this case, because of the [attacks] on [the] credit and the [reliability] of Mr Thomson which have been made by many counsel and by [the appellant] of the need to examine his evidence with particular care having regard to the fact that he is a sentenced prisoner whose sentence may possibly be reviewed, that there may be some human tendency to minimise his role and divert responsibility to others and that having regard to particular criticisms which have been made, there is a need to examine his evidence with care. I would also point out countervailing factors which I consider should be taken into account.
The fact of Mr Thomson's early admission of backdating resolutions in discussion with an officer of the tax department, I think it was Mr Stone although I'm not certain, of his cooperation with the authorities of his plea of guilty and his cooperation in this case, all being an indication of his acceptance of responsibility and his desire to make amends, but warning the jury that his evidence will obviously need to be examined with care. But that it is ultimately for them to decide what weight and credence to attribute to it (ts 3955 - 3956).
85 On 31 October 2013, at 10.29 am, his Honour commenced his lengthy summing up (ts 3964). On 6 November 2013, at 3.16 pm, the summing up was completed and the jury retired to consider its verdict (ts 4276).
86 Early in his summing up, on 31 October 2013, the trial judge directed the jury in relation to Mr Thomson's evidence:
Now, the other witness who I wish to mention briefly at this stage is Mr Trevor Thomson whose evidence has been the subject of much criticism, attack and challenge by counsel for each of the accused and by [the appellant]. All of whom have suggested to you in various ways, that he is a witness who is unworthy of credit and is also independently unreliable and whose evidence ought not be accepted. I have to say something about the position of Mr Thomson.
First of all, as you know, he is a convicted criminal who has pleaded guilty to this very charge and has been sentenced to a term of imprisonment by a judge of this court and he has served at least part of that sentence and is presently on release. It is the case that when he was sentenced the sentence which was imposed by the judge who sentenced him was reduced pursuant to statutory powers because of assistance which he had provided to the authorities up to that point and for assistance which he promised he would continue to give to the authorities in the future, including giving evidence in this particular case if it ever got to court, as it has. For both those reasons, including the latter, there was a reduction in the term of his sentence.
There is provision ... under State [sic] law which provides that where a person's sentence is reduced for those reasons, including because of the assurance of ... future cooperation, the court may recall the order imposing the sentence and impose a sentence based on the full sentence, if the offender subsequently fails, wholly or in part, to fulfil his undertaking of cooperation. So although it has not been pursued in any detail, there was always the possibility, strong [or faint] as you may consider, that if Mr Thomson did not maintain his assurance of cooperation with the authorities, he may be recalled and his sentence revised to the extent that it had been reduced because of his assurance of future assistance to the authorities. Whether that is a factor affecting the credibility of his evidence or truthfulness, is a matter for you to bear in mind. It may be, it may not be, it will be for you to decide but it is a factor which needs to be taken into account.
[Mr Thomson] was variously suggested to be dishonest, greedy, incompetent, lazy and by [the appellant] a cunning man. It was submitted that there was a natural tendency on his part to displace or dilute the importance or gravity of his own conduct onto others, onto the co-accused. Whether that is a matter to cause you to doubt or undervalue his evidence, again, is a matter for you to consider.
It is the fact that he has cooperated with the authorities. You will remember that he said when first asked by his friend and colleague of the Australian Taxation Office, I think the officer's name was Mr Jones, whether these particular resolutions had been backdated, he immediately answered that they had been. And he then made a variety of statements, pleaded guilty to the charge at the first opportunity and was given concessional punishment because of his cooperation. Whether this rehabilitates him to any extent in your eyes is, again, a matter for consideration but it would be open for you to conclude that he is, at least in part, a man who has made some very serious mistakes, has been punished severely for them and is attempting now to make amends. Whether that is so and what effect that may have on his testimony is for you to decide.
What it does mean is that because of the criticism made against him, you should evaluate [Mr Thomson's] evidence closely, as indeed you will evaluate ... the evidence of all the other witnesses, but if you are satisfied that his evidence is truthful or consistent with other evidence, or that certain parts of it are, then you are free to act on his evidence. But bearing in mind the need to scrutinise it as I have already said (ts 4000 - 4002). (emphasis added)
87 Later in his summing up, his Honour reminded the jury of particular criticisms of Mr Thomson's evidence which had been made by the appellant, counsel for Mr Bartlett and counsel for Mr Sayers.
88 On 5 November 2013, the trial judge said, in the course of summarising the evidence of the witnesses:
The next witness and a very important witness is Mr Trevor Neil Thomson. And he gave evidence and was cross-examined over many days and the significance of his evidence is an important matter for you to consider and estimate.
I don't propose even to attempt to summarise Mr Thomson's evidence because I have said so much about it already and various aspects of it have been identified by counsel and [the appellant] as deserving of either acceptance or rejection and pointing to features associated with Mr Thomson's character which may affect its reliability.
It's also been asserted that Mr Thomson had a pecuniary interest to serve by attempting to maximise the profits for Barminco and hence the two trusts for the 2000 and 2001 years because of the shares that he and Mr Fisher would derive from the commission payable to them by [the appellant].
I don't in any way wish to suggest or imply that Mr Thomson's evidence is not of importance in this case. It's simply inappropriate for me to attempt to summarise it at this point because so much has already been said about it (ts 4203).
89 Although numerous complaints were made about his Honour's summing up, no complaint was made by the appellant or counsel for any of the other accused about his Honour's directions or comments in relation to Mr Thomson's evidence.
90 Section 50 of the Evidence Act 1906 (WA) provides:
(1) In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2) On the trial of a person on indictment for an offence -
(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.
91 Section 50 was inserted by the Criminal Law Amendment Act 1988 (WA) and subsequently amended by the Acts Amendment (Evidence of Children and Others) Act 1992 (WA). Section 50 superseded s 36BE(1) of the Evidence Act.
92 In White v The Queen [2006] WASCA 62, Wheeler JA (with whom McLure & Pullin JJA agreed in relation to the ground of appeal which is relevant for present purposes) said:
[Section 50] is in almost identical terms to the former s 36BE(1), save that it now extends to encompass all of those witnesses in respect of whom there was formerly a rule of law or practice which required the giving of a 'corroboration warning'. In relation to any such witness, the trial judge is now positively forbidden to give to the jury a warning to the effect that it is dangerous to convict on the evidence of a category of witness because the witness falls into some suspect 'category'. The judge may comment upon the evidence of a witness, provided that the judge makes it clear that it is for the jury alone to evaluate the evidence of that witness, in the light of common experience. Where, however, there is a particular danger in acting upon the evidence of a witness which a jury might not otherwise appreciate, a warning should be given. It may be that the need to warn is not confined to 'hidden' dangers, but that is the most usual case in which a need to warn is said to arise: Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 319, 325 and see R v Johnson [2004] SASC 241 at [44] - [47], where some examples are discussed [70].
...
Authority in this Court has not been as clear as it might have been in relation to the relevance of s 50 in the past. There has perhaps in some cases been a tendency to analyse a direction to see if it was 'good enough' in traditional terms, with s 50 regarded almost as a provision which excuses a failure to give 'full' direction in traditional terms in some cases. For example, in Lambley v The Queen [[2001] WASCA 38] at [17], the Court appears to have suggested that a warning will be both justified and required whenever the circumstances show some intrinsic lack of reliability in the witness. However, in the particular circumstances of that case, it may well have been common ground that the witness was in a category 'similar to' a prison informer, so that a jury would not, unassisted, appreciate what the dangers of the witness's evidence might be. A case which is often cited in this Court is Foo v The Queen [2001] WASCA 406 at [30] in which Parker J, with whom Steytler J and Olsson AUJ agreed, said:
'Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters.' (emphasis supplied)
I quoted that passage myself in Hoy v The Queen [2002] WASCA 275 at [18], and at [19] expressed the view that such a warning may also be appropriate even where the dangers are apparently obvious. However, having regard to the authority which I have discussed, it now seems to me that only if the words which I have emphasised in Foo, relating to 'hidden' dangers, are given their full effect, should that passage be regarded as accurate. The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 604 per Brennan J), it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given [77] - [78].
See also Moloney v The State of Western Australia [2006] WASCA 193 [9] - [14] (Wheeler JA, McLure JA agreeing), [22] - [30] (Robert-Smith JA, McLure JA agreeing); Evans v The State of Western Australia [2012] WASCA 13 [41] - [51] (Mazza JA, McLure P & Buss JA agreeing); Santos v The State of Western Australia [No 2] [2013] WASCA 39 [46] - [48] (McLure P, Buss & Mazza JJA agreeing).
93 In Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344, I reviewed a number of decisions of the High Court in relation to corroboration warnings. See, in particular, Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250; and Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161. I also reviewed the decision of the Court of Criminal Appeal of Victoria in Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497.
94 In Cecez, I concluded (Miller JA agreeing) that:
(a) the High Court authorities and the decision in Faure do not hold that, as a matter of course, a trial judge must instruct or warn the jury as to the need for careful scrutiny of the evidence of a prosecution witness whose evidence is significant (or even critical) to the prosecution case if the witness is of bad character or has his or her own interests to serve; and
(b) the necessity or desirability for such an instruction or warning will depend, in each case, on the particular circumstances, including whether there is a risk that the jury may be unable to appreciate without assistance, or may overlook, some deficiency or danger associated with the witness or his or her evidence [109].
95 Cases in which accomplice evidence is given by a co-accused fall into a very special category. See Moloney [13]; Ferris v The State of Western Australia [2007] WASCA 69 [40] (Steytler P & McLure JA); Evans [49]; Santos [No 2] [47].
96 Apart from s 50 of the Evidence Act, a judge is bound to give an instruction or a warning to the jury if, in the circumstances of the particular case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr (324 - 325) (Brennan J); Longman (86) (Brennan, Dawson & Toohey JJ); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J). This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).
97 In my opinion, the trial judge was not bound, in the circumstances, to give the jury a corroboration warning in relation to Mr Thomson's evidence. In particular, his Honour was not bound to give the jury an instruction or warning in the terms contended for in ground 1 of the appeal. In the circumstances, such an instruction or warning was not required to avoid a perceptible risk of a miscarriage of justice in relation to the assessment of Mr Thomson's evidence. His Honour's omission to give a corroboration warning or an instruction or warning in the terms contended for in ground 1 was not an error of law and did not occasion a miscarriage of justice.
98 His Honour reminded the jury during his lengthy summing up, commencing on 31 October 2013 and concluding on 6 November 2013, of particular criticisms of Mr Thomson's evidence made by the appellant and counsel for the other accused. At trial, no complaint was made about this aspect of his Honour's summing up by the appellant or counsel for any of the other accused.
99 There is no doubt that the jury would readily have appreciated from the evidence and from the trial judge's summing up that:
(a) The Crown's case against the appellant and the other accused relied, to a substantial extent, upon the truthfulness and reliability of Mr Thomson's evidence.
(b) Mr Thomson had previously pleaded guilty to a charge of conspiracy similar to that alleged in the trial indictment.
(c) Mr Thomson had been sentenced to a term of imprisonment for the offence.
(d) Mr Thomson's past and promised future cooperation with law enforcement agencies were taken into account by the judge who sentenced him, and resulted in a substantial sentencing discount.
(e) The appellant and counsel for the other accused had subjected Mr Thomson and his evidence to significant and sustained criticism and attack. The appellant and counsel for the other accused suggested that Mr Thomson was dishonest, greedy, incompetent, lazy and (according to the appellant) cunning. They also suggested that his evidence was unworthy of credit: it was unreliable and should not be accepted.
(f) According to the appellant and counsel for the other accused, Mr Thomson had his own interests to serve; in particular, a tendency to dilute the importance or seriousness of his own misconduct and, at least in part, to project his own misconduct onto the appellant and the other accused.
(g) It was necessary for the jury to scrutinise Mr Thomson's evidence, and evaluate it closely, in deciding whether his evidence was truthful and reliable.
100 I am satisfied that there was no hidden danger in relation to Mr Thomson's evidence which the jury might have been unable to appreciate without the assistance of an instruction or warning from his Honour. It is not apparent, on my examination of the trial record, that Mr Thomson had any attractive features, or that any other circumstances existed, which gave rise to a risk that the jury might overlook his status as a convicted criminal who had, on the case of the appellant and the other accused, his own interests to serve.
101 It is apparent from the different verdicts returned by the jury in relation to the appellant and the other accused that the jury carefully evaluated the evidence of Mr Thomson which inculpated, or tended to inculpate, each of the accused. As I have mentioned, although the jury found the appellant guilty, it returned a verdict of not guilty in relation to Ms Grace and was unable to reach a verdict in the cases of Mr Bartlett and Mr Sayers.
Ground 2: counsel for the appellant's submissions
104 Counsel for the appellant submitted to this court that the trial judge should have given the jury a direction that 'obviated the aura of criminality introduced by Mr Thomson's plea of guilty to a conspiracy offence'. It was argued that the jury should have been directed that 'Mr Thomson's plea did not preclude them from acquitting all of the accused and should not be used as evidence of the guilt of any of the accused, except insofar as it went to Mr Thomson's credibility'.
105 Counsel for the appellant also submitted that his Honour was required to direct the jury that Mr Thomson's plea of guilty to conspiracy 'did not mean [that] one of the accused at [the] trial must have been Mr Thomson's co-conspirator'. It was argued that, absent such a direction, there was a danger the jury would reason that 'because Mr Thomson had pleaded guilty to a conspiracy, at least one of the four co-accused must have been guilty of being a party to [the] conspiracy'.
Ground 2: counsel for the Crown's submissions
106 Counsel for the Crown submitted to this court that it would have been inappropriate for the trial judge to have given the direction contended for by counsel for the appellant. In particular, it was argued that:
(a) during the trial there was no focus on the fact that the charge to which Mr Thomson had pleaded guilty was similar to the charge in the trial indictment;
(b) it was not suggested that Mr Thomson's plea of guilty had any necessary consequences for any of the accused; and
(c) the giving of the suggested direction could have been disadvantageous to all of the accused 'as it could have had the opposite effect on the jury from that implicitly contended for' by counsel for the appellant.
107 In R v Windsor [1953] NZLR 83, Windsor and Boock were jointly charged in the Magistrates Court with conspiracy to defeat the course of justice. Depositions were taken. Boock pleaded guilty and was committed for sentence. Windsor pleaded not guilty and was committed for trial.
108 Windsor was tried on an indictment containing two counts. The first alleged he conspired with Boock to defeat the course of justice. The second alleged that he and Boock wilfully attempted to defeat the course of justice. Windsor was convicted on the first count. No verdict was taken on the alternative count. Windsor appealed. His grounds of appeal included the contention that evidence given by Boock at Windsor's trial to the effect that Boock had pleaded guilty to the charge of conspiring with Windsor was wrongly admitted and that, having regard to the admission of this evidence and notwithstanding the corroboration warning given by the trial judge to the jury, the verdict should be set aside because it was unsatisfactory and it would be dangerous to let it stand.
109 Finlay J, who delivered the judgment of the Court of Appeal, said:
Whether, therefore, the plea of 'guilty' be regarded as an act or a declaration, evidence of it was not admissible against the appellant on his trial. If it be regarded as a confession, then it was still inadmissible, for a prisoner can be affected only by confessions of himself, and not by those of accomplices: R v Turner ((1832) 1 Mood CC 347; 168 ER 1298), Reg v Gardner and Humbler ((1862) 9 Cox CC 332), and R v Dibble ((1908) 72 JP 498); unless, of course, made in his presence otherwise than in a judicial proceeding, or assented to by him. None of those conditions was satisfied here, for the plea of 'guilty' was made in a judicial proceeding, and the appellant never assented to it. If the evidence of a plea of 'guilty' was neither a declaration admissible against the prisoner nor an admission or confession of which evidence could be given against him, then it is difficult to imagine on what ground it could be received. Its real purpose was, we should imagine, to reinforce the evidence of Boock by informing the jury that she herself had acted to her detriment upon the truth of the matters alleged in her testimony. But evidence of that could scarcely be admissible against the appellant, for what Boock said or did when a common purpose had ceased to exist was not admissible against the appellant (90).
110 The Court of Appeal refused to apply the proviso. Although the trial judge gave a corroboration warning he did not refer to the inadmissible evidence. The Court of Appeal held that the inadmissible evidence 'might have had considerable weight with the jury, which might well have asked itself why Boock should have pleaded "guilty" if there was not such a conspiracy as was alleged' (91). Their Honours concluded that they could not say that 'a reasonable jury would, without doubt, have convicted' (91). Accordingly, the appeal was allowed, the conviction quashed and a new trial ordered.
111 In R v Fowler (1985) 39 SASR 440, Hart and Fowler were jointly charged with having murdered Mr and Mrs Ashby. Hart pleaded guilty to murdering Mr Ashby and was convicted, after a trial, of the manslaughter of Mrs Ashby. Fowler pleaded not guilty to both charges. Fowler was convicted, after a trial, of murdering Mr Ashby but was acquitted of having murdered Mrs Ashby. He appealed against the conviction.
112 The trial judge failed to direct the jury that:
(a) if they were satisfied beyond reasonable doubt that Fowler had unlawfully killed Mr Ashby, but had a reasonable doubt about whether the Crown had proved that he intended to kill him or to do grievous bodily harm because of possible intoxication by drugs and alcohol, the jury should convict of manslaughter; or
(b) Hart's plea of guilty was not evidence against Fowler.
113 The Full Bench of the Supreme Court of South Australia held that, in consequence of the trial judge's failure to give those directions, the appeal should be allowed, the conviction quashed and a new trial ordered.
114 Matheson J (King CJ & Johnston J relevantly agreeing) said:
[T]he learned trial Judge omitted to tell the jury that Hart's plea of guilty was not evidence against the appellant (see The Queen v Moore (1956) 40 Cr App R 50).
In at least four places in his direction, his Honour reminded the jury that Hart had pleaded guilty to murdering Mr Ashby. In one place he said: 'You should not treat that admission as in any way necessarily reflecting on Fowler. It may, but it does not necessarily reflect on Fowler, the admitted fact that Mr Ashby was murdered by the accused Hart'. In my opinion, the law is clear that his admission did not reflect on the appellant at all. His Honour's omission to direct the jury accurately in this respect was more serious in a context where his Honour was at pains to tell the jury that what one accused said to the police is not evidence against the other. This omission also bears on the appellant's criticism of the direction on the doctrine of joint enterprise 'as it applied or possibly applied to the charge relating to the murder of Mr Ashby'. Clearly the Crown could not use Hart's plea of guilty to murdering Mr Ashby in support of their argument that Fowler was involved in a joint enterprise to murder Mr Ashby (448- 449). (original emphasis)
115 In Cowell v The Queen (1985) 24 A Crim R 47, Cowell and Burn were charged with indecent assault. Burn pleaded guilty and Cowell not guilty. Burn entered his plea before Cowell was tried for the offence. At Cowell's trial the prosecutor said in his opening address that Burn had been charged with an offence arising out of his own acts in relation to the victim and he had pleaded guilty. Defence counsel did not object at that stage but, after the close of the defence case, defence counsel applied to the trial judge for the discharge of the jury on the basis that the Crown had not called evidence that Burn had been charged and convicted on his plea of guilty. Burn was not a witness at Cowell's trial. The trial judge dismissed the application. Cowell was convicted. His appeal against conviction was allowed.
116 Cowell's challenge to his conviction was based on three matters. First, the prosecutor's statement in his opening address that Burn had pleaded guilty to an offence with which he was charged. Secondly, the manner in which the prosecution sought to link Cowell, through Burn, with criminal responsibility for what occurred in the victim's bedroom on the night in question. Thirdly, the contention that the trial as a whole had miscarried so as to render Cowell's conviction unsafe and unsatisfactory.
117 In the Court of Criminal Appeal of New South Wales, Street CJ (Lee & Wood JJ agreeing) reproduced the following statement by Lord Goddard in R v Moore (1956) 40 Cr App R 50:
When two people are indicted together for a criminal offence and one pleads Guilty and the other does not, it is the commonest thing in the world to tell the jury, as was done in this case, 'You must not pay any attention to the fact that the other man has pleaded Guilty'. Even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded Guilty, but the fact that he has pleaded Guilty is no evidence against his co-prisoner. That was laid down by both Hale, Pleas of the Crown, vol 1, p 585n and Hawkins, Pleas of the Crown, Bk 2, c 46, s 34 and also in Tonge (1662) 6 St Tr 225, the accepted principle being that a man's confession is evidence only against himself and not against his accomplices. If a prisoner pleads Guilty, it does not affect his co-prisoner (53 - 54).
118 His Honour said that the principle enunciated by Lord Goddard had always been recognised in the criminal courts of New South Wales. His Honour elaborated:
When, in the course of a trial, one of a number of co-accused pleads guilty, that fact is, of course, inevitably known to the jury who must be invited (but not directed) to return a verdict in consequence of that plea. At the same time, trial judges are astute to ensure that juries are made plainly aware that a plea of guilty by a co-accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury.
Lord Goddard comments that, even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded guilty. This is by no means always the case. It is only permissible to tell the jury that another person has pleaded guilty if that is a necessary part of the overall material that the jury must have before them (50).
119 Street CJ observed that 'it [was] not easy to see how the Crown justified telling the jury that Burn had pleaded guilty' (50). Significantly, the jury was not told what offence Burn had been charged with; that is, whether it was an offence he had jointly committed with Cowell, or an offence of a several and different character from that with which Cowell was charged. His Honour continued:
Plainly enough, it was a highly significant and, as I would regard it, potentially prejudicial piece of information to put before the jury albeit that upon close analysis it may be that Burn's own criminal activity that night would not have necessarily involved any ultimate prejudice to the appellant in the eyes of the jury.
It would, however, have been necessary to ensure that the jury fully understood that Burn's plea of guilty should not be regarded by them as creating an aura of criminality surrounding the events of that night within which the question of the appellant's guilt fell for determination. Even accepting, as I must say I hesitate to accept, that it could be regarded as permissible to have opened it, plainly enough it would have been desirable for the jury to be very specifically informed of the limited use - or one might say non-use - that the jury was entitled to make of this piece of information.
... There was nothing said in the summing up which would have assisted the jury to place aside, as it should have done, any prejudicial significance affecting the appellant by reason of this statement in the Crown's opening address (50 - 51).
120 His Honour said it was unnecessary to consider whether the trial judge's failure to direct the jury that Burn's plea of guilty was not evidence against Cowell 'should be regarded as having brought about a miscarriage' (51). His Honour was of the view that the failure to direct on that matter, combined with Cowell's other complaints on appeal, created 'an overall situation in which ... the conclusion is inevitable that the trial miscarried' (51).
121 In R v Gallagher [1986] VicRp 25; [1986] VR 219, the appellant was charged with 43 counts of receiving secret commissions. He pleaded not guilty. After a trial, the jury returned verdicts of guilty on 20 counts. The appellant appealed against his conviction.
122 During his opening address, the prosecutor told the jury that the 'givers of corrupt gifts' (who were described on appeal as 'the developers'), in relation to the transactions forming the basis of the charges against the appellant, had pleaded guilty and been dealt with. The prosecutor also told the jury, in the course of opening, that such evidence was not capable of being used against the appellant. Defence counsel did not object when the prosecutor intimated his intention to call evidence that the developers had pleaded guilty and been dealt with.
123 On appeal, junior counsel for the appellant (who had been defence counsel) admitted that he did not object because he judged it was in the appellant's interest that the evidence of the guilty pleas be led (232). Defence counsel believed that cross-examination of the developers in relation to the circumstances in which they pleaded guilty was likely to yield material favourable to the appellant (232). Defence counsel anticipated extracting from some or all of the developers that a 'deal' had been made in which each developer had been assured that if he pleaded guilty he would be dealt with in a way in which no conviction was recorded (232 - 233).
124 The prosecutor was permitted to adduce evidence at the appellant's trial of the developers being charged, brought before the court, pleading guilty and being dealt with.
125 On appeal, one of the grounds of appeal alleged that the trial judge had erred in failing to discharge the jury, in circumstances where inadmissible evidence was opened, notwithstanding defence counsel's failure to object.
126 In the Full Court of the Supreme Court of Victoria, Young CJ, Kaye and Gray JJ held that the evidence in question was irrelevant to any issue in the trial and, accordingly, none of the evidence should have been opened or given (235 - 236). The fact of a plea of guilty might have become relevant to the issue of a particular witness's credit, depending upon how the issue was raised, but until that happened the evidence of the developers' pleas of guilty, and the manner in which a particular developer was brought before a court and dealt with, was inadmissible (235). The prosecutor's statement to the jury, in his opening address, that the evidence of the pleas of guilty could not be used against the appellant was a correct statement of the law, and demonstrated that the evidence should not have been opened or given (236). However, no miscarriage of justice was occasioned by the trial judge's failure to discharge the jury on that account because defence counsel deliberately refrained from objecting to the evidence for legitimate tactical or forensic reasons (236 - 237).
127 In Romeo v The Queen [1988] WAR 304, the three appellants, together with Ian Murray, were presented in the District Court upon an indictment which charged that between specified dates at Mount Magnet they conspired with each other to cultivate cannabis with intent to sell or supply it to another. Murray pleaded guilty to the charge and he was convicted upon his plea. Each of the appellants pleaded not guilty but they were convicted after trial. The appellants appealed against their convictions. The appeals were allowed, their convictions quashed and a new trial was ordered.
128 At the material time Murray held a pastoral lease of land at Mount Magnet. The property was known as Iona Station. The Crown case was that the appellants had occupied accommodation on Iona Station, and the appellants together with Murray had established a cannabis plantation and had harvested the crop and taken it away.
129 Murray made a full confessional statement to the police in an interview. He gave evidence at the trial of the appellants as a Crown witness. Although Murray admitted that he had been convicted of the offence, he claimed that he had changed his plea from not guilty to guilty upon wrong advice. Murray denied the truth of the confessional statement. The trial judge permitted Murray to be treated as a hostile witness. The confessional statement was put to him. He claimed that it was a concoction and denied that he had grown cannabis.
130 The Crown case against the appellants was circumstantial. The critical question in relation to each appellant was whether, upon the evidence admissible against him, it could be held beyond reasonable doubt that he was a member of the group which cultivated and harvested the crop.
131 Each appellant gave evidence in his own defence denying involvement in the alleged conspiracy and denying that he had been associated with the growing of the cannabis crop on Iona Station.
132 One of each appellant's grounds of appeal was that the trial judge's directions were inadequate in that, relevantly, he failed to direct the jury adequately on the effect of Murray's plea of guilty.
133 In the Court of Criminal Appeal of Western Australia, Burt CJ held that it was necessary for the trial judge in his direction to the jury (307):
To make it clear that the fact that Murray had pleaded guilty and that he had been convicted upon that plea was not admissible against any of the appellants in proof of the fact that he (the appellant) had been party to the alleged agreement: R v Moore (1956) 40 Cr App R 50 and R v May [1984] 13 CCC (3d) 257.
134 His Honour concluded that the directions given by the trial judge did not adequately cover that matter.
135 Brinsden J said in relation to the trial judge's directions concerning Murray's plea of guilty:
What his Honour said, however, in relation to Murray's evidence on oath that he had pleaded guilty, though on wrong advice, is at best ambiguous but at worst could have left the jury with the impression that they were entitled to assume that as he had said on oath he had been convicted of the offence that was evidence the three appellants had conspired with him to commit on their part the offences (310).
136 The appeal in Romeo was allowed, the convictions quashed and a new trial ordered because of a number of inadequacies in the trial judge's directions. That is, the inadequacies were not limited to the trial judge's directions on the effect of Murray's plea of guilty.
137 I will now examine the decisions in Moore and R v May [1984] 13 CCC (3d) 257, which were cited with approval by Burt CJ in Romeo.
138 In Moore, the appellant was indicted together with Rynn on a charge of housebreaking and larceny at a country inn. Rynn pleaded guilty and the appellant not guilty. The appellant did not give evidence at his trial. No evidence was called for the defence. Rynn was not a witness at the appellant's trial. The jury convicted the appellant. His appeal was allowed.
139 Lord Goddard, who delivered the judgment of the Court of Criminal Appeal, recounted the relevant facts:
The premises, a public house, were broken into some time after 2.30 am, but no one really knows the exact time. Evidence was given, which we must assume the jury accepted, that the appellant was in the public house on the previous night with Rynn. There was evidence that the next morning about 6.30 am he and Rynn were at a bus stop about a mile away. So we get the two things: first, there was evidence, which the jury must have accepted, that the appellant was a customer in the public house the night before about closing time, and, secondly, that he was still in the neighbourhood of the village about 6.30 am next morning. Those two things, taken either separately or in conjunction, prove nothing as far as this offence is concerned.
Then there comes this further point. Later, when the police interviewed the appellant, they asked him whether he had any objection to going with them to the public house. He said that he had no objection and they took him there. When they got there, he said: 'I have never been in this public house before in my life.' We must assume for the purposes of the case that that was a lie (53).
140 It was argued, on behalf of the prosecution, that the importance of the appellant's lie was that the appellant was with Rynn in the public house, and Rynn had pleaded guilty.
141 After making the statement quoted by Street CJ in Cowell (see [117] above), Lord Goddard said:
What was said in this case was that, if the appellant was in company on the night before the crime with a man who pleaded Guilty, that was evidence on which a jury could find the appellant equally guilty, especially as there was some evidence by a soldier that the appellant was seen walking with the other man during the night in the neighbourhood of the public house.
Rynn was brought up during the case for identification, and naturally the jury got it very much into their minds that Rynn had pleaded Guilty and that, if the appellant was with Rynn that night, he must be guilty (54).
142 His Lordship concluded that there was not enough evidence to go to the jury and the appellant's conviction was therefore quashed.
143 In May, the appellant, who was tried before a judge sitting without a jury, was convicted on a count in an indictment which alleged that the appellant and numerous other persons specified in the count had unlawfully conspired together, and with another person or persons unknown, to wilfully attempt to obstruct, pervert or defeat the course of justice by interfering with the lawful disposition of informations and summonses. He appealed from his conviction.
144 One of the grounds of appeal was that the trial judge, in part, appeared to have used the fact that others charged with the conspiracy had pleaded guilty or had been convicted as an item of proof of the existence of the conspiracy as distinct from the appellant's participation in it. Martin JA, who delivered the judgment of the Ontario Court of Appeal, said the approach of the trial judge in that respect was erroneous. The pleas of guilty for the conviction of other alleged co-conspirators 'was not admissible against the appellant to prove the existence of a conspiracy' [11]. However, the Court of Appeal dismissed the appeal because in its view the evidence properly admissible as to the existence of a conspiracy was overwhelming.
145 In Burnett v The Queen (1994) 76 A Crim R 148, the Court of Criminal Appeal of Western Australia (Nicholson, Owen & White JJ) said that it was 'certainly the case that where evidence of a plea of guilty of a co-offender is admitted the jury must be very specifically informed of the limited use that they are entitled to make of that piece of information' (152).
146 In Connell v The Queen (No 6) (1994) 12 WAR 133, the appellant was tried in the District Court on an indictment containing two counts of conspiracy. Count 1 alleged that the appellant had conspired with Meyers, Hobby and others to defraud a person or persons having a financial interest in the result of a horse race, the AHA Cup, at Bunbury by not allowing a horse, 'Strike Softly', to run on its merits. Count 2 alleged that the appellant conspired together with Meyers, Hobby and others to prevent or pervert the course of justice, namely a possible prosecution of the appellant and others arising out of the defrauding of a person or persons having a financial interest in the result of the AHA Cup by arranging payments for Hobby to remain outside Australia and, further or alternatively, to refrain from providing information to any person in furtherance of an official police investigation, thereby deflecting or preventing the institution of such a prosecution. The appellant was acquitted on count 1 but convicted on count 2. He appealed against his conviction.
147 Ground 3 of the appellant's appeal alleged that the trial judge erred in refusing to discharge the jury after the prosecutor told the jury in her opening address that Meyers and Hobby, with whom the appellant was alleged to have conspired, had pleaded guilty in respect of such conspiracy and had been dealt with. Ground 3 failed. Malcom CJ, Pidgeon and Nicholson JJ said:
In our opinion, this was a case in which it was necessary for the jury to be informed that Meyers and Hobby had pleaded guilty and had been dealt with. These were facts which it was inevitable that the jury would need to know. Counsel for the Crown made it clear to the jury at the time of making the disclosure in her opening that no adverse inference should be drawn against the appellant because of the fact that they had pleaded guilty and had been dealt with. There was no suggestion at any stage that the fact that Meyers and Hobby had been convicted of the offence was any part of the evidence against the appellant that they had conspired with him: cf Romeo v The Queen [1988] WAR 304 at 309 - 310, per Brinsden J.
In our opinion, the learned judge was right not to discharge the jury. In any event, having regard to the conduct of the trial and the fact that it was accepted for the defence case that there were conspiracies of the kind alleged in counts 1 and 2 involving at least Meyers, Hobby and Franchina, but not the appellant, there was no miscarriage of justice as a result of the refusal to discharge the jury: cf R v Harvey [1993] 2 Qd R 389 at 452, per Lee J. That the jury did not draw any adverse conclusions against the appellant as a result of Meyers' and Hobby's pleas of guilty is demonstrated by the fact that the jury acquitted the appellant of the charge in count 1 on the indictment. It is true, however, that the learned judge did not specifically direct the jury that they should not take into account the pleas of guilty by Meyers and Hobby in determining the guilt of the appellant. That is the subject of ground 50 of the Grounds of Appeal to which we will return in due course (170).
148 Ground 50 of the appellant's appeal alleged that the trial judge erred in failing to give a 'clear direction' to the jury in his summing up that the jury 'should ignore entirely the fact that both Meyers and Hobby had pleaded guilty to each of the two conspiracies with which the appellant was charged'. The trial judge did not give a direction of the kind referred to by Street CJ in Cowell (50 - 51) and Burt CJ in Romeo (306 - 307) despite such a direction being specifically requested by defence counsel upon the judge completing his summing up. Malcolm CJ, Pidgeon and Nicholson JJ said it was 'clearly desirable' for the trial judge to have given the direction which was sought, but it was 'not necessary for him to do so' or, if it was necessary, there had been no miscarriage of justice as a result of the omission. Ground 50 failed. Their Honours explained:
The unusual feature of this case was that, as has been seen, it was accepted on the part of the defence that there were conspiracies of the kind alleged in counts 1 and 2 to which Meyers, Hobby and Franchina and others were parties, but it was contended that the appellant was not a party. In opening, counsel for the Crown told the jury that they could not draw any conclusions adverse to the appellant from the fact that Meyers and Hobby had pleaded guilty and had been dealt with. The learned trial judge specifically warned the jury that they should not convict the appellant on the uncorroborated evidence of Meyers and Hobby (T16114). The jury acquitted the appellant of the offence the subject of count 1 on the indictment, from which it can be inferred that the jury did not place any significance on the fact that Meyers and Hobby had pleaded guilty to the offences (272).
149 In R v Fountain [2001] VSCA 200; (2001) 124 A Crim R 100, the Court of Appeal of Victoria applied Cowell and Burnett. The appellants in Fountain, who were mother and son, were presented for trial in the County Court on a presentment charging each of them with one count of recklessly causing serious injury (count 1), false imprisonment (count 2) and attempting to pervert the course of justice (count 3). Two co-offenders, Luckman and Ryan, had previously pleaded guilty, in Ryan's case to the same three counts, and in Luckman's case to charges of recklessly causing serious injury and attempting to pervert the course of justice.
150 Ryan and Luckman gave evidence at the appellants' trial as prosecution witnesses [20]. Both Ryan and Luckman gave answers in cross-examination which supported the view that the appellants had acted in self-defence in the relevant interaction with the complainant [27]. Accordingly, the prosecutor led evidence in re-examination to the effect that both Ryan and Luckman had pleaded guilty to the same offences upon which the appellants were being tried [27]. Counsel for the appellants accepted in the appeal that in light of the evidence given by Ryan and Luckman under cross-examination, the evidence led in re-examination concerning their pleas of guilty was admissible [27]. In any event, defence counsel did not object to the evidence [27].
151 The prosecutor, in his closing address to the jury, attacked the credibility of Luckman and Ryan and then said:
But the bottom line is, is that all those men gave evidence on oath about and two of them have pleaded guilty in relation to these offences. What, pleaded guilty to nothing, if it was justified? The fact that they pleaded guilty can't be used against these respective accused people because everybody is entitled to an individual trial. You have to assess the evidence against each particular person. But nevertheless the significance is that these two men admitted their guilt in unlawful behaviour and gave evidence of it. So really the scenario is that even in cross-examination, particularly in relation to Luckman who you might well think was almost ashamed to be in the witness box and admit what had happened on that particular night. That he was quite prepared almost to say, well, yes, the actions were justified but that was totally inconsistent with his behaviour leading up to this trial and his admissions and pleas of guilty in relation to these matters [27].
152 Charles JA (Buchanan & Chernov JJA agreeing) noted that both the prosecutor and defence counsel told the jury that the fact that Luckman and Ryan had pleaded guilty could not be used against the appellants because everybody was entitled to an individual trial [27]. However, the trial judge did not mention these matters in his summing up, and no point about the absence of any warning was taken by counsel [27].
153 After referring to Cowell and Burnett, Charles JA said:
There was, I think, plainly a possibility that the jury would make improper use of the evidence that Luckman and Ryan had pleaded guilty to the same offences. The prosecutor's submission to the jury certainly did not make it clear that the pleas of guilty by Luckman and Ryan could only be used to rebut any contention by the defence that pressure had been placed by the investigating police officers upon these witnesses to make a statement in support of the prosecution case or to undermine the concessions made by the witnesses under cross-examination in favour of the case of self-defence made by the [appellants]. On the contrary it seems to me that the prosecutor's words invited the jury to treat the pleas of guilty as evidence tending to establish the guilt of the [appellants]. On this basis the evidence clearly had the potential to be prejudicial to the [appellants] who were being alleged to be co-offenders of the persons who had pleaded guilty. In these circumstances the judge should have warned the jury appropriately, as stated in Cowell and Burnett [30].
154 The Court of Appeal allowed the appeal, quashed the convictions and ordered a new trial. The basis for making those orders was the trial judge's failure to give an accomplice warning and the judge's failure to warn the jury concerning the guilty pleas entered by Ryan and Luckman.
155 In Napier v The State of Western Australia [2007] WASCA 248, the appellant and two others, namely Dawson and Hintz, were convicted, after trial, of conspiring together and with another or others to commit an indictable offence, namely forcibly rescuing from lawful custody an offender who was undergoing a sentence of strict security life imprisonment. A co-accused, Anderson, who was named in the indictment, pleaded guilty in the absence of the jury before the commencement of the appellant's trial.
156 During the trial the sheriff's officer improperly informed the jury that Anderson had pleaded guilty to the offence.
157 Ground 2 of the appellant's appeal alleged that the trial judge erred in not allowing an application by defence counsel to discharge the jury as a result of the conduct of the sheriff's officer. It was submitted that although the trial judge had given a direction to the jury in relation to the disclosure of Anderson's plea, the disclosure was 'prejudicial to the appellant to the extent that it could not be corrected by [a] direction'.
158 In the Court of Appeal, Pullin JA (Wheeler JA & Le Miere AJA agreeing) dismissed the ground of appeal. His Honour said that although the jury was improperly informed about Anderson's plea of guilty, the trial judge directed the jury 'in very clear terms ... that Anderson's plea of guilty was irrelevant' [39]. This was 'the correct course to take' [39]. Later, Pullin JA said that 'in most cases any prejudice to the accused on trial [will be] sufficiently overcome by a clear direction to the jury not to take information about a co-offender's plea of guilty into account' [40]. In Napier, the requisite direction was given and 'it was sufficient to neutralise any prejudice to the appellant' [40]. See also R v Golding [2008] SASC 68; (2008) 100 SASR 216 [17] - [24] (Gray J, Doyle CJ agreeing in substance & David J agreeing).
159 In Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537, the appellants were convicted, after trial, of several offences. At the trial the prosecutor told the jury, without objection, that a co-offender had pleaded guilty. The co-offender was a prosecution witness. Ground 1 of the appeal by Jovcic alleged that there was 'an error of law when the prosecution, in opening, led inadmissible evidence regarding the conviction of [the co-offender] and then improperly impugned his credit'.
160 On appeal, the State submitted that because the co-offender was an accomplice of the accused, it was 'necessary for the prosecutor to mention his convictions even if the accused had objected' [63].
161 In the Court of Appeal, Pullin JA (Owen JA & Jenkins J relevantly agreeing) reiterated that 'where the jury does properly learn that a co-offender pleaded guilty, the jury must be specifically informed of the limited use that they are entitled to make of that piece of information' [68]. His Honour said the prosecutor in Carney had 'expressly made it clear to the jury that [the co-offender's] plea of guilty was not being referred to for the purpose of indicating that [Jovcic] adopted the facts admitted by [the co-offender's] plea of guilty' [69]. His Honour then said that it was not 'necessary' for the jury to have been informed by the prosecutor that the co-offender had pleaded guilty [70]. However, the ground of appeal based on the prosecutor's disclosure to the jury of the co-offender's plea of guilty failed because defence counsel did not object to the provision of the information and, further, defence counsel did not object for rational forensic reasons. His Honour was of the view that 'what was said by the prosecutor was what Jovcic wanted the jury to hear, and the jury did hear the evidence subsequently' [72]. The Court of Appeal decided that no substantial miscarriage of justice had occurred.
162 In R v Ormond [2012] SASCFC 130, the appellant, Ormond, was jointly charged with Mannix and Melbourne with the murder of Rankine and with aggravated causing serious harm with intent to cause serious harm. Mannix pleaded guilty, in the absence of the jury, to both offences. Ormond and Melbourne pleaded not guilty to both charges. Ormond was convicted by the jury of both offences. Melbourne was acquitted by the jury of both charges.
163 At the trial, Ormond's defence counsel requested that Mannix's pleas of guilty be led in evidence. The prosecutor agreed. The pleas were the subject of the prosecutor's opening address and also an agreed fact.
164 On appeal, counsel for Ormond (who was not his defence counsel at trial) complained that Mannix's pleas of guilty were irrelevant and inadmissible at Ormond's trial and, when viewed with other complaints made by counsel for Ormond, gave rise to a miscarriage of justice.
165 In the Court of Criminal Appeal of South Australia, Gray J expressed his agreement with the observations of Street CJ in Cowell [84]. His Honour then said that the evidence as to Mannix's pleas of guilty 'came with a forensic advantage for Ormond on the charge of murder'. On Ormond's case at trial, Mannix's pleas could be seen by the jury to be consistent with Ormond's case at trial that Ormond had not inflicted the fatal blow [86]. His Honour also said that 'the risk of misuse was as significant in the case of Melbourne as it was in the case against Ormond' [86]. However, the jury did not use the pleas of guilty to reason to guilt with respect to Melbourne because he was acquitted on both counts. The trial judge gave directions to the jury that Mannix's pleas of guilty could not be used in any way against Ormond. Gray J was of the opinion that the trial judge's directions ensured that there was no risk of a miscarriage of justice.
166 Peek J agreed with Gray J that there was no risk of a miscarriage of justice [92]. Peek J also said, relevantly, in his reasons [99]:
I would simply add that in the light of certain decisions of the High Court, including the recent decision in Baker v The Queen, I would wish to reserve my position on the question of the strict admissibility of the particular items of evidence in this case and as to the precise status of cases such as R v Moore ((1956) 40 Cr App Rep 50) and R v Cowell ((1985) 24 A Crim R 47).
167 White J said that, subject to the qualifications contained in Peek J's reasons, he agreed with the reasons of Gray J.
168 In Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632, the appellant and LM were arraigned in the Supreme Court of Victoria on a presentment charging them jointly with the murder of Snowball. The Crown's case was that the deceased fell to his death while he was being attacked by the appellant and LM. The appellant made no admissions as to any involvement in the incident. Neither the appellant nor LM gave or adduced any evidence at the trial. The trial judge ruled that certain out of court statements by LM were not admissible in the appellant's trial because there was no relevant exception to the hearsay rule. The jury acquitted LM, but convicted the appellant, of the deceased's murder.
169 The appellant's application for leave to appeal against his conviction was dismissed by the Court of Appeal of Victoria.
170 On appeal to the High Court, the appellant claimed that the trial judge had erred by failing to direct the jury that admissions by LM in his out of court statements could be used in exculpation of the appellant and that it was appropriate to modify the common law to recognise an exception to the hearsay rule in the case of third party confessions.
171 The High Court dismissed the appeal. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held, relevantly:
(a) where the Crown is in possession of credible evidence which tends to establish A's complicity in the commission of an offence for which B has admitted sole guilt, there will ordinarily be no unfairness in the prosecution of A and B at a joint trial, nor in the tender of B's confession against B alone [52];
(b) in the appellant's case, the assertions in LM's out of court statements did not provide unambiguous support for the appellant's case at trial [53]; and
(c) in the circumstances, there was no unfairness in the exclusion of those statements in the appellant's trial [53].
172 The decisions in Moore and Cowell, and the line of authority based on those decisions, was irrelevant to the matters in issue in Baker. Accordingly, Moore, Cowell and other cases which have followed or applied the observations of Lord Goddard or Street CJ were not referred to by the High Court.
173 In Bou-Elias v The Queen (No 1) [2012] VSCA 61, the appellant was convicted, after a trial in the County Court before a judge and jury, of aggravated burglary, affray, two counts of causing injury recklessly and two counts of threat to kill. The appellant appealed against conviction. He alleged that the trial miscarried by reason of:
(a) the jury's having been told that an accomplice, Murat, had pleaded guilty and been 'dealt with' for the very offending the subject of their consideration; and
(b) the trial judge's failure to direct the jury in terms sufficient to guard against their impermissible use of Murat's plea and disposition.
174 The salient facts of the alleged offending were these. Four men entered a nightclub. They began shouting at, threatening and abusing other patrons. Murat assaulted a patron, Bekir. Murat was restrained by another patron, Karakas, and pushed onto a billiard table while the other three men became involved in a fight with other patrons. One of the men struck Karakas with billiard balls. This man had brandished a shotgun on entry into the nightclub and made threats to kill Bekir and Ezedin, another patron. For about 40 seconds, this man terrorised the patrons and the owners of the nightclub. After the shotgun was brandished and the assaults had occurred, the four men left the premises.
175 The appellant was tried with a number of alleged co-offenders. However, Murat, having earlier pleaded guilty to one count of intentionally causing injury and one count of aggravated burglary, gave evidence for the prosecution. In his initial evidence at the appellant's trial, Murat denied that the appellant was present at the nightclub and also denied having seen any gun. The prosecutor was granted leave to cross-examine Murat as a hostile witness. During the prosecutor's cross-examination it was established that in a statement made by Murat to the police, and in an interview with police, Murat had said that the appellant had entered the nightclub with him and had a gun. Murat claimed in cross-examination that these statements were untrue.
176 During her summing up, the trial judge gave the jury an accomplice warning in relation to Murat. This warning was not criticised on appeal.
177 The Court of Appeal of Victoria dismissed the appellant's appeal. Mandie JA (Neave JA & Cavanough AJA agreeing) explained why the appeal must be dismissed:
[T]he defence did not contest that someone entered the premises that night armed with a gun, or what then occurred as alleged. Rather, the appellant's case was that he was not present at the premises and was not the man with the gun. Thus, there was no tangible risk that Murat's plea or pleas of guilty, whereby he accepted his involvement in the events at the night club that evening, would be used by the jury as tending to establish the guilt of the appellant on any of the charges against him. To find the appellant guilty, the jury had to accept the evidence of Murat (and/or Ezedin, the other identification witness) that the appellant was present at the premises and wielded the gun. Murat's guilty plea could not have assisted the jury and there was no real risk that it would have been used by the jury to establish or as tending to establish the appellant's guilt. The failure by defence counsel to take any exception, or to request the direction that the appellant now argues should have been given, must be taken as a recognition that this was so. In addition, the vagueness of the evidence concerning Murat's guilty plea [or pleas] would have made it counter-productive for the appellant to seek a direction drawing attention to it - no doubt another reason for not seeking such a direction. Finally, if such a direction had been sought, there is no reason to think that the judge would not have given it [26].
178 In Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659, the appellant was arraigned in the County Court upon an indictment containing 85 charges of theft. He pleaded not guilty and represented himself at the trial. The appellant was convicted on each charge. He appealed against his conviction.
179 The appellant was employed to collect money from parking meters. Collectors worked in pairs. Three other collectors gave evidence as prosecution witnesses at the appellant's trial. Many of the appellant's alleged thefts were said to have been committed with one of these other collectors. Two of them, Kalia and Tatnell, had previously pleaded guilty and been sentenced for thefts from parking meters. The prosecutor adduced evidence-in-chief from Kalia and Tatnell that they had pleaded guilty to offences of a like nature to those alleged against the appellant.
180 Ground 1(a) of the appellant's appeal complained that the prosecutor had impermissibly adduced evidence from the appellant's co-offenders, Kalia and Tatnell, regarding their pleas of guilty and that, in the circumstances of the case, this had led to a miscarriage of justice.
181 In the Court of Appeal of Victoria, Maxwell P, Weinberg and Priest JJA said it was important to note that the prosecutor did not adduce evidence from Kalia or Tatnell that he had received a discount on his sentence for his cooperation or that he stood to be resentenced on appeal by the Crown to the Court of Appeal if he did not swear up to his statement [35].
182 Their Honours said that the evidence from Kalia and Tatnell had been led by the prosecution for the primary purpose of bolstering their credit by showing that they now had no motive falsely to incriminate the appellant [39].
183 Their Honours also noted, in the context of the appellant being unrepresented at his trial:
In light of [R v Ristic, unreported, Court of Criminal Appeal, Starke, Murphy and Marks JJ, 7 October 1991] and [R v Gallagher [1986] VicRp 25; [1986] VR 219], it was arguable that, in the circumstances of this case, the fact that Kalia and Tatnell had pleaded guilty was inadmissible. The issues surrounding the admissibility of those pleas were not brought to the appellant's attention. He was not invited to question their admissibility. Nor was the issue brought to his attention after that evidence been put before the jury, and the possibility of requesting a discharge raised [46].
184 Ground 1(b)(i) of the appellant's appeal alleged that the trial judge's failure, properly or at all, to direct the jury against impermissibly using Kalia's and Tatnell's pleas of guilty against the appellant occasioned a miscarriage of justice.
185 Maxwell P, Weinberg and Priest JJA held that, irrespective of whether ground 1(a) was made out, there was 'obviously considerable force' in ground 1(b)(i) [47]. Their Honours elaborated:
Evidence of the pleas of guilty by Kalia and Tatnell having been adduced by the Crown, it was necessary, in our view, for the trial judge to direct the jury as to what use, if any, they could make of that material. That was so even though the appellant did not seek any such direction [47].
186 After referring to and discussing Fountain, their Honours said:
There is no basis for distinguishing Fountain ... in the circumstances of this case. We consider that the jury ought to have been instructed not to use the fact of Kalia and Tatnell's pleas of guilty as tending to establish the guilt of the appellant. As in Fountain ... the presence of the appellant at the scene with the co-offenders was never in dispute (cf Bou-Elias v The Queen (No 1) [2012] VSCA 61 [25] (Mandie JA)). Kalia and Tatnell's guilty pleas, in relation to incidents that occurred in the same circumstances as those allegedly committed by the appellant, may well have been viewed as highly significant by the jury in the absence of appropriate direction [52].
187 The appellant in Andelman also made out other grounds of appeal. It is unnecessary to mention them. The Court of Appeal allowed the appeal, quashed the convictions and ordered a retrial.
188 In Power v The Queen [2014] VSCA 146, the appellant was convicted, after a trial in the County Court before a judge and jury, of numerous offences including aggravated burglary, armed robbery, false imprisonment, recklessly causing injury and possessing an unregistered general category handgun. He appealed against his conviction.
189 The Crown case at trial was that the appellant had committed the offences with co-offenders including Salisbury. Salisbury pleaded guilty and was sentenced on the basis that he had acted in concert with Kirkwood and the appellant.
190 Salisbury was an important prosecution witness at the appellant's trial. In a record of interview and in a statement to police, Salisbury had implicated the appellant in the commission of the offences. However, when called to give evidence at the appellant's trial, Salisbury gave a very different version of events. The trial judge permitted Salisbury to be treated as a hostile witness and cross-examined by the prosecutor.
191 The appellant relied on two grounds in his appeal to the Court of Appeal of Victoria. The first alleged that the trial judge erred in admitting into evidence Salisbury's pleas of guilty. The second alleged that the trial judge erred by failing to direct the jury that it could not use Salisbury's pleas as evidence of the appellant's guilt.
192 The Court of Appeal, by majority (Redlich JA & Robson AJA; Priest JA dissenting) dismissed the appeal.
193 Redlich JA and Robson AJA said that although evidence of a co-offender's bare plea of guilty may not be used as evidence of the guilt of the accused, such evidence may be relevant to the co-offender's credit and therefore admissible [19]. In the circumstances of the trial, the appellant's contention that 'the bare evidence of Salisbury's plea was inadmissible', could not be sustained [42].
194 Their Honours decided that the Evidence Act 2008 (Vic) enabled the facts elicited from Salisbury in cross-examination by the prosecutor, as to the content of the prosecution's summary of facts that was read at Salisbury's sentencing hearing, to be treated as a representation that the appellant was one of the offenders [60]. Their Honours also decided that Salisbury's pleas of guilty and the prosecution's summary of facts were admissible as proof of the appellant's guilt [75].
195 Redlich JA and Robson AJA were of the view that the appellant's case was not within the circumstances in which a trial judge is bound to instruct the jury that a bare plea of guilty by a co-offender is not to be taken into account in determining the question of the accused's guilt [78]. The critical issue in Power, in this context, was whether the appellant was present when the crime was committed by the co-offenders. It was not suggested that none of the alleged offences had been committed by anyone [78] - [79]. In these circumstances, 'the admission of a co-offender's plea of guilty will not by itself ordinarily give rise to the need for ... a direction' [80]. Their Honours said there was no perceptible risk that Salisbury's bare plea would give rise to reasoning that 'the appellant was one of the other men who was there' [80].
(a) defence counsel did not request the trial judge to give a direction of the kind which was contended for on appeal [81];
(b) plainly, defence counsel perceived no risk of unfairness to the appellant in relation to the evidence of Salisbury's bare plea [81];
(c) the prosecutor, in his closing address, sought only to use the pleas of guilty as bearing upon Salisbury's credit in a limited way [81];
(d) there were obvious forensic reasons why defence counsel chose not to ask the trial judge to limit the prosecution's summary of facts to Salisbury's credit [84]; and
(e) the appellant could not now assert that there was any unfairness arising from the absence of a direction, where attention to the evidence in question was 'studiously avoided' during the trial [86].
197 In any event, Redlich JA and Robson AJA were of the opinion that no substantial miscarriage of justice had occurred even if, contrary to their view, the evidence in question was inadmissible or the trial judge should have confined the use of that evidence to Salisbury's credit, and the appellant's forensic decisions at trial did not preclude him from complaining on appeal that a direction as to Salisbury's bare pleas of guilty and the prosecution's summary of facts should have been given [87].
198 Their Honours said that the case against the appellant was very compelling. His account was inherently implausible. When examined against the undisputed circumstantial facts, the appellant's account was unbelievable. The appellant's conviction was inevitable [89] - [99].
199 In the present case, the only decisions cited by counsel for the appellant in his written submissions on ground 2 were Cowell and Romeo. At the hearing of the appeal, counsel also referred to Moore. Counsel for the Crown did not cite any authorities in their written submissions on ground 2. At the hearing of the appeal, counsel referred to Fountain and Power. Both counsel for the appellant and counsel for the Crown were apparently content to avoid the burden of locating and analysing all relevant appellate decisions.
Ground 2: a trial judge's role in relation to an unrepresented accused
200 In R v White [2003] VSCA 174; (2003) 7 VR 442, Chernov JA (Charles JA relevantly agreeing) said that when an accused is unrepresented at his or her trial 'the judge must ensure that the accused is fully aware of the legal position in relation to the substantive and procedural aspects of the case without effectively advising him or her of what course should be followed, or unduly interfering in the Crown's case as if the judge was the accused's counsel' (original emphasis) [34].
201 In O'Connell v The State of Western Australia [2012] WASCA 96, Mazza JA (Martin CJ & Buss JA agreeing) observed [106]:
A criminal trial is an adversarial process. It is not the role of the trial judge, when faced with an unrepresented accused, to play the part of his or her advocate and give the advice, guidance and representation which counsel would have provided: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 334 - 335 (Deane J). However, consistent with a trial judge's duty to ensure a fair trial, he or she is under an obligation to give an unrepresented accused such information and advice as is necessary to ensure that he or she has a fair trial: MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 534 (Mason J). There is no limited category of matters of which a judge must advise an unrepresented accused: MacPherson v The Queen (524) (Gibbs CJ and Wilson J). The scope of the assistance to be given depends on the particular litigant and the nature of the case. The touchstones are fairness and balance: Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 [14] (Bell J).
Ground 2: the course of the trial: the trial judge's remarks to the jury at the commencement of the trial
202 At the commencement of the trial, before the prosecutor's opening address, the trial judge gave the jury some initial directions about its role and made some remarks about the charge of conspiracy faced by all of the accused.
203 After referring to the count, as pleaded in the trial indictment, his Honour said:
The immediate thing to notice is that the prosecution alleges that there was a conspiracy between five people; not just the four who are presently charged, but a fifth person as well, a Mr Trevor Neil Thomson. Now, Mr Thomson will be a witness for the prosecution in this case. And you will hear what has happened to him because of his involvement in the conspiracy. But the important point to realise is that this case involves a conspiracy said to have been constituted by five people; the four accused and Mr Thomson. Whether at the end of the case you are satisfied that that has been proved or not will be entirely a matter for you.
It is possible, although I expect the prosecution will urge you otherwise, that you may conclude that there is only a conspiracy of four, not five. And if that was your conclusion, it would be important that you're agreed upon who the four were.
It is also possible that you might consider that it has only been proved that there was a conspiracy of three. And in that case, it would be essential that you're agreed unanimously upon the identity of the three involved.
And it is also possible that you might conclude on all the evidence that you are only satisfied that there was a conspiracy of two, in which case you would need to be agreed as to who the two were.
I mention that as underlying the possible permutations and combinations of what might eventuate in this case (ts 903).
204 The trial judge did not inform the jury in his initial remarks that it might possibly conclude that none of the accused had been involved in a conspiracy with Mr Thomson or anyone else.
205 His Honour went on to tell the jury, in his initial remarks, that:
(a) for a person to be guilty of the offence of conspiracy, he or she must have entered into an agreement with one or more other persons (ts 903 - 904);
(b) that is why, in the present case, it was alleged in the charge against each accused that he or she entered into an agreement 'with the other four, including Mr Thomson' (ts 904);
(c) it was necessary for the prosecution to prove that 'the person charged and at least one other party to the agreement, one of the so-called co-conspirators, one of the five, each intended ... dishonestly to cause a loss to a Commonwealth entity' (ts 904);
(d) it was essential for the prosecution to prove that 'the person charged or at least one other party to the agreement, one of the other five, must have committed an overt act pursuant to the agreement' (ts 904); and
(e) in the present case, 'the conspiracy alleged is said to have been agreed between these five people, including Mr Thomson [and] the unlawful element of it is the intention of dishonestly causing a loss to a Commonwealth entity' (ts 904).
So in this present case [for] the offence to be proved, it would be necessary for the prosecution to establish to your satisfaction beyond reasonable doubt that there was an agreement between two or more of the accused, the prosecution says between five persons, that each accused knowingly entered into that agreement realising what its purpose and object was and that each agreed to implement the conspiracy by carrying that purpose into effect. And as I said previously, it is also necessary that the prosecution prove that at least the accused or one of the co-conspirators committed an overt act pursuant to the agreement (ts 905).
Ground 2: the course of the trial: the prosecutor's opening address
207 The prosecutor informed the jury in his opening address that a conspiracy requires at least two persons to be party to it and it was necessary to determine on an individual basis whether each accused was guilty or not guilty in relation to the count in the indictment:
In no case, including a charge of conspiracy, is it the situation that because one accused is guilty then necessarily another one must be, or vice versa; not guilty, therefore they're all not guilty. You have to determine the matter individually, and, of course subject to what his Honour has told you, a conspiracy requires at least two persons to be engaged in it in order for there to be a conspiracy. You can't have a conspiracy on your own, by definition (ts 910).
208 The prosecutor referred to the appellant's relationship with Mr Thomson and to Mr Thomson's plea of guilty:
[The appellant] was considered by many people to be an expert in taxation law, although, in fact, he held no formal qualifications in either law or accountancy. And in late 1999 and early 2000, [the appellant] was marketing tax avoidance or minimisation schemes to wealthy individuals. Now, [the appellant] was an acquaintance of a Perth accountant called Trevor Thomson, who's the person named in the charge. Now, I'll tell you this. As you will learn from Mr Thomson himself when he gives evidence, Mr Thomson has pleaded guilty to his part in these matters and has been sentenced by a court. And he will be called by the Crown as a witness. And you'll get various directions in due course about that (ts 916).
209 The prosecutor said that, on the Crown's case, the appellant saw 'the problem' with the unanticipated amount of about $7 million of assessable income (ts 958). The appellant explained 'the problem' to Mr Thomson initially (ts 958). They 'toss[ed] various ideas around ... and eventually [the appellant] [came] up with the idea' (ts 958). The prosecutor said 'this is where the charge comes in' because it was the appellant's idea 'which [was] adopted' and which became 'the subject matter of the conspiracy' (ts 958).
210 The prosecutor said the appellant's idea, if implemented, would mean that 'no income tax is paid on that seven million dollars, which is the essence of the charge' (ts 960). He continued:
But you see the motivation behind it is not just the saving of or the non-payment of income tax on seven million dollars, the main motivation for this was to try and preserve the efficacy of the Appointor [Arrangement] and to try and make the facts fit in with the advice that was received from Robert O'Connor. Because far more money was involved in that than paying income tax on seven and a half million dollars. Although, of course, no income tax is to be paid under this scheme. And that is the subject matter of our charge. The motivation for it is a different matter. So in essence this is what this case is about because that scheme was adopted and document[ed] in 2002 (ts 960 - 961).
211 The prosecutor said that 'people [joined] the plan, including Bartlett and Sayers' (ts 961). He elaborated:
It starts off with [the appellant], it's his idea. Thomson is the first to get in there because he knows about it and has to formulate some of these documents, get them typed up. Typed up on typewriters and old paper and what have you used. Bartlett and Sayers have put to them this and they obviously agree, we say, and they're signing the documents, all these backdated documents. They're the ultimate beneficiaries I suppose of the plan. And Ms Grace joins in in the way I will explain to you in due course. So that is the genesis of the conspiracy, the plan, and that is the order ... - so it starts off with ... [the appellant's] great [idea] in order to clearly save the Appointor [Arrangement]. And it obviously is intended that no income tax be paid on this seven million that Grace has identified as being the profit. And Thomson is the first to be told of the plan and he assists and then Bartlett and Sayers go along with it and sign these backdated documents. But they're the main beneficiaries of the plan, the conspiracy, which is charged in the indictment (ts 961).
212 At the end of his opening address, the prosecutor said that '[e]ventually, 27 February 2009, Thomson was charged with an offence for his part in this matter and he pleaded guilty on 6 May 2010 and was sentenced' (ts 982). The prosecutor added that 'these four accused were charged with the present offence in 2011 and here we are now' (ts 982).
Ground 2: the course of the trial: the appellant's opening address
213 The appellant was the only accused who gave an opening address at trial.
214 The appellant said it appeared to him that the Crown's case '[revolved] almost entirely around [Mr Thomson's] version of the conspiracy' (ts 1000).
215 The appellant then said in relation to Mr Thomson:
Now, Mr Thomson has changed his version of what happened in the conspiracy on a number of occasions. If Mr Thomson had not agreed to give testimony in this trial, I don't believe any of us would be here today. Mr Thomson previously pleaded guilty to the conspiracy charge. He received a reduced gaol sentence on the basis that he would give evidence in this trial. And he's now back in the community. Mr Thomson alleges that I, Mr Bartlett, Mr Sayers and Ms Grace conspired with him to defraud the Commonwealth or the Tax Department of tax on an amount of approximately seven million, the tax on that amount being just over $3 million. Like me, Mr Bartlett, Mr Sayers and Ms Grace have pleaded innocent to the charge (ts 1000).
Ground 2: the course of the trial: the evidence
216 Mr Thomson said in evidence-in-chief in relation to his plea of guilty and his sentencing:
I think, Mr Thomson, on 6 May 2010 you pleaded guilty in the Supreme Court to an offence related to your part in the matters that are the subject matter of this trial; is that correct---Yes.
And you were sentenced to a term of imprisonment; is that correct---Yes.
And you were given a reduction in your sentence pursuant to a particular section of the Commonwealth Crimes Act; is that correct---Yes.
And that was by reason of your agreeing to give evidence in any trial or proceeding relating to the subject matter of the offence to which you pleaded guilty---Yes (ts 1503 - 1504).
217 During cross-examination by the appellant, Mr Thomson confirmed details of his plea of guilty and his sentencing (ts 1695 - 1696).
218 The appellant put to Mr Thomson in cross-examination that 15 August 2002 was 'the date of the commencement of the conspiracy to which you pleaded guilty' (ts 1879). Mr Thomson responded that he was 'not sure of the date' (ts 1879).
219 Counsel for Mr Sayers cross-examined Mr Thomson about his plea of guilty and his sentencing. Mr Thomson agreed with the following propositions:
(a) he had pleaded guilty 'to what was described as an offence related to [his] part in the matters that are the subject matter of this trial' (ts 2087); and
(b) he had received a reduction in his sentence 'by reason of [his] agreeing to give evidence in any trial or proceeding relating to the subject matter of the offence to which [he had] pleaded guilty' (ts 2087).
Ground 2: the course of the trial: counsel for Mr Sayers' closing address
220 Counsel for Mr Sayers said in his closing address that the case against Mr Sayers '[depended] entirely upon the account given by Mr Thomson' (ts 3637).
221 Counsel said that Mr Thomson 'by his own admission [was] a dishonest man because [he had] agreed by his plea of guilty that he did dishonest acts or intended to do them or did them with the intention of dishonestly causing a loss to the Commonwealth' (ts 3637).
222 Counsel argued that Mr Thomson had a very powerful reason, by virtue of the sentencing outcome following his plea of guilty, 'to look for ways that he might be able to provide assistance to the authorities, both before he was sentenced and after [he was sentenced]' (ts 3664).
Ground 2: the course of the trial: counsel for Mr Bartlett's closing address
223 Counsel for Mr Bartlett, in his closing address, adopted the criticisms made about Mr Thomson and his memory by counsel for Mr Sayers (ts 3768).
Ground 2: the course of the trial: counsel for Ms Grace's closing address
224 Counsel for Ms Grace, in his closing address, focused upon the paucity of evidence against Ms Grace in relation to her alleged participation in the conspiracy.
225 Counsel did not refer to Mr Thomson's plea of guilty or his sentencing.
Ground 2: the course of the trial: the appellant's closing address
226 The appellant said in his closing address that Mr Thomson acknowledged, in cross-examination by counsel for Mr Sayers, that 'he received a reduction in his prison sentence for giving past statements to the [Australian Crime Commission] about all of us accused, and a further reduction in his prison sentence for agreeing to give evidence in this trial in relation to us' (ts 3900 - 3901). The appellant continued:
Now, I suggest to you, ladies and gentlemen of the jury, Mr Thomson is a man who had something to gain from saying to the Australian Crime Commission 'The handwritten versions of these documents [that is, exhibits 95 and 96] were Greg Dunn's.' He got something to gain, I suggest to you. Don't forget - and again it's my suggestion - that we're dealing in Mr Thomson with a cunning and calculating man (ts 3901).
227 The appellant also said in his closing address:
It is the prosecution who had to prove to you beyond a reasonable doubt I'm guilty of the charge. Let's just quickly go back to that charge if we may, which is in tab 1 of your jury book. Now, what do we know about this? What we know is that Mr Thomson pleaded guilty to this charge ...
And another Supreme Court [judge], McKechnie J sentenced Mr Thomson and he said: I would normally start at eight years. That's how serious - that's how serious this offence is. Serious. Eight years. And your decision - it's your decision - you don't sentence people, that's the job of his Honour if people are found guilty but it's your decision that determines whether his Honour has to play that role. Eight years the starting point. What's my position? You'll see here the judge's associate. The judge's associate at the start of the trial doubles as what's called the clerk of arraigns. And shortly after you'd been empanelled, this charge, the charge that you have in the jury book, tab 1, was read out to me. I stood up and I pleaded. It's only two words. I pleaded not guilty. Not guilty, it's what I pleaded (ts 3931 - 3932).
Ground 2: the course of the trial: the trial judge's summing up
228 The trial judge told the jury in his summing up that Mr Thomson was 'a convicted criminal who has pleaded guilty to this very charge and has been sentenced to a term of imprisonment by a judge of this court and he has served at least part of that sentence and is presently on release' (ts 4001).
229 His Honour said the 'real and essential question' for the jury was this: 'has the prosecution proved beyond reasonable doubt that one or more of the four accused, on the evidence admissible against him or her ... was knowingly participating in an agreement to create and implement a false interest scheme with ... a dishonest intention of avoiding or [reducing] the tax payable by the beneficiaries receiving profit distributions from the Sayers and Bartlett Family Trusts for the 1999 tax year?' (ts 3964). His Honour said that was the 'essential question' which the jury would need to decide in relation to the cases against each of the four accused (ts 3964).
230 The trial judge noted that each member of the jury had a copy of the indictment (ts 3966). His Honour read the count, as pleaded in the indictment, and told the jury that it was hearing 'four distinct cases, one against each accused' and that it was necessary for the jury 'to consider the cases presented against each accused individually and separately and to reach and return a verdict separately against each of the four accused' (ts 3967). His Honour added that, when considering the cases against each of the accused in succession, the jury would only be entitled to consider the evidence admissible against each accused individually (ts 3967).
231 A little later, the trial judge re-stated the 'ultimate issue' in the cases against each accused:
Now, the ultimate issue in each of these four cases, as I said at the very outset, is whether between about 15 August 2002 and 17 July 2004 at Perth and elsewhere, the particular accused conspired with any one or more of the other accused and/or with Trevor Neil Thomson with the intention of dishonestly causing a loss to a Commonwealth entity, namely the Commonwealth by itself through its officer, the Federal Commissioner of Taxation.
To establish this, there are a number of sub elements or issues which must be proved by the prosecution.
First, it must be proved that the particular accused entered into an agreement with one or more of the other alleged four conspirators, that's including as one of the other alleged conspirators, Mr Trevor Thomson.
Secondly, the prosecution must prove that the person charged meant to conspire with one or more of the other specified persons with the intention of dishonestly causing a loss to a Commonwealth entity. To do this, the prosecution must establish that that accused entered into an agreement with one or more of the other specified persons and that he or she and at least one other party to the agreement intended dishonestly to cause a loss to the Commonwealth entity.
And finally, there must be at least one overt act committed by the accused or at least one other party to the agreement, pursuant to the agreement. That is, an act done in or towards the implementation of the agreement (ts 3975).
232 His Honour instructed the jury that, as each of the four cases had to be decided separately, 'it is possible that you may decide to convict one or more or all of the accused or to acquit one or more or all of them' (ts 3981). His Honour added that '[t]he fate of any one will not determine the fate of any others because each case has to be decided separately' (ts 3981). The correct starting point in relation to each accused was that he or she is innocent (ts 3981). All the evidence which the jury considered had to be approached on the basis that, from the commencement, each accused was presumed to be innocent (ts 3981).
233 The trial judge said there were 'two points which the prosecution must prove to [the jury's] satisfaction', namely that 'each particular accused had a specific intention' (ts 3982). In particular, for the crime of conspiracy to be proved, as alleged, the prosecution must establish that 'the particular accused intended to agree with one or more of the other alleged co-conspirators knowing that the agreement involved a particular feature, namely an intention dishonestly to cause a loss to a Commonwealth entity, in this case the Federal Commissioner of Taxation' (ts 3982 - 3983).
234 His Honour reiterated that the prosecution must prove the following elements beyond reasonable doubt in the case of each accused, namely:
(1) that there was a conspiracy, that is an unlawful agreement between two or more of the alleged five conspirators. (2) that the conspiracy was accompanied by an intention of dishonestly causing a loss to a Commonwealth entity. And (3) that at least one overt act was done by the person charged or another co-conspirator in furtherance of the agreement.
As to the second component, namely that the conspiracy was accompanied by the intention of dishonestly causing a loss to a Commonwealth entity, there are two further components to that. Namely, [first], proof that the accused conspirator intended to enter into an agreement dishonestly to cause a loss to a Commonwealth entity. That is that the accused actually intended to enter into the conspiracy. And, secondly, proof that the accused conspirator intended that the conspiracy would be carried out or performed, even if that, in fact, did not occur (ts 3986 - 3987).
235 The trial judge said the agreement to act in concert to achieve the object of dishonestly causing a loss to the Commonwealth 'need not be formal or documented or recorded, but can be tacit or implicit so long as there is a real agreement between the conspirators to act together to do that thing or to achieve that object' (ts 3988). The existence of the agreement can be inferred from 'the statements or conduct of the parties but the actions needed to establish such an agreement must be sufficient to show knowing participation in the agreement to achieve ... the unlawful object of dishonestly causing a loss to the Commonwealth' (ts 3988).
236 His Honour instructed the jury that 'with respect to that part of the charge which asserts that each accused conspired with one or more of the others and/or Thomson with the intention of dishonestly causing a loss to a Commonwealth entity, this requires the prosecution to prove that the particular accused meant to bring about or was aware that a loss would be caused to a Commonwealth entity if the conspiracy was carried into effect' (ts 3990).
237 The trial judge said the offence was 'the agreement' and the offence was 'complete as soon as [the agreement] is formed ... by the accused and at least one other of the named conspirators' (ts 3991).
238 His Honour told the jury that the appellant, unlike Mr Bartlett and Mr Sayers, had not given an out of court statement, before being charged, to the authorities who were investigating the FIS. His Honour said that the appellant was not under any obligation to give a statement and, in any event, the appellant was 'out of the country and in Thailand until comparatively recently and was not interviewed by the authorities in relation to this matter during the periods when interviews were sought from others' (ts 4194). The appellant, as was his right, did not give evidence at the trial. His Honour emphasised that, in these circumstances, although it was necessary to glean the appellant's defence from the questions he asked of the witnesses and his addresses to the jury, what the appellant said in his submissions was not evidence (ts 4194).
239 The trial judge outlined the Crown's case against the appellant, as follows:
Now, the prosecution case against [the appellant] is essentially this: that he was regarded as having very considerable knowledge and experience in taxation affairs and in accounting and had acquired a reputation for advising people about legitimate ways of minimising or avoiding income tax by arranging their affairs in various ways, including by entering into schemes such as the Appointor [Arrangement], which is likely to have a major effect upon the taxable income which might otherwise be assessable in the hands of the individual taxpayers.
And it's now very well accepted and common ground in this case how [the appellant], through his acquaintance with Mr Thomson, was introduced to Messrs Bartlett and Sayers in 1999 or 2000, early 2000, and how he proposed the Appointor [Arrangement]; how opinions were sought from legal counsel about its legitimacy; how he agreed to set up a fighting fund; and how once the Appointor [Arrangement] was established he participated in a series of meetings involving distributions by way of cheques and promissory notes; and how this led on to associations with Mr Egglishaw, Crossline and the endorsement of promissory notes through to Crossline. All this is now common ground. It is not contentious in the case.
We know that in May of 2002, [the appellant] went with Messrs Bartlett and [Sayers] to Singapore and met Mr Egglishaw where various matters were discussed and how on that occasion, [the appellant] told Messrs Bartlett and Sayers about the failure by Mr Thomson to lodge income tax returns for any period since 1997 and of the payment of what has been called a commission, part of [the appellant's] fee for involvement in the Appointor [Arrangement], to Mr Thomson. And how afterwards, when all three returned to Australia, there was a meeting with Mr Thomson in which he was effectively called to account for his neglect and delay in the accounting affairs of Barminco and the associated entities, and how Mr Thomson was embarrassed about [his] share in the commission or reward that [the appellant] was receiving from the implementation of the Appointor [Arrangement].
Now, essentially, the case is that on discovery of the greater than expected profit for Barminco for the '99 year in ... August 2002, Mr Thomson was away, he came back from his holiday, Ms Grace explained this to him and there were discussions about what to do with the increased profit or the profit.
And it's Mr Thomson's evidence that there were a series of meetings between him and [the appellant] and on occasion others at which it was discussed [how], if at all, this profit was to be dealt with. And no solutions were immediately forthcoming, but it was necessary to do something about this because of the effect which it might have on the Appointor [Arrangement] having regard to the pattern of distributions.
...
And it is, according to Mr Thomson, the case that it was [the appellant] who came up with the idea of the issue of the special units, 79.9 million of which would be partly paid, the unpaid component bear interest, the interest would be arranged in such a way that most of it would be receivable by Barminco in the 2000 year and only 19,000-odd in the '99 year, but that the interest be payable in advance by Bremerton and Nebraska, and hence deductible by them in the '99 year and would offset the greater profit emerging in the distributions to them from Barminco.
All this you understand very well now and how it was Mr Thomson's evidence that when this solution was identified, [the appellant] produced drafts of the proposed resolutions to give effect to it and instructed Mr Thomson to have them typed up and shown to him.
According to Mr Thomson, the drafts were in [the appellant's] handwriting and were handed directly by Thomson to his secretary, Ms Paternoster. She typed them up, handed them back to Thomson who ... handed them to [the appellant] and they came back with a number of corrections. They were given again to Ms Paternoster for typing up in their final form and were then ready for adoption and implementation.
Now, I'm sure you realise that within that brief description, a number of controversial points have quickly been glossed over.
First of all, it is the case that Mr Thomson has said and maintained that the handwritten draft notes of the resolutions which became [exhibits] 95 and 96 were in [the appellant's] handwriting, not his own. Yet Ms Paternoster has said that the notes as given to her were in Mr Thomson's handwriting and she did not swerve from that. We are of course speaking about events 11 years ago and as with this and all other evidence, some regard has to be made for the passage of time and the accuracy of memory, but neither of these two witnesses seem to be in much doubt about the identity of the handwriting on the particular document. So there is an issue there about that.
The next point which emerges is that it was some time between the delivery of the documents to Ms Paternoster for typing and handing back on the one hand and the corrected documents being returned to her for final [typing] on the other. According to her, it was a matter of weeks and not days and this is of course important when one looks at the time slot in which various persons were present in Perth and available to participate at the meeting or meetings as alleged or as sworn to by Mr Thomson. We have the situation that Mr Thomson was away until late August, not returning from an overseas holiday with his wife until then. And then we have the situation that [the appellant] was away in Thailand at various points so that over the period from late August to late September, there's only a period of about - it varies according to the estimate, 17 or 10 days within which all parties were or could have been present at the meeting said to have taken place. And all that has to be squared into the estimate by Ms Paternoster that it may have been two or three weeks between the first and second version of the documents which were given to her.
But whatever you choose to make of that, and it is very much [a matter] for your decision, the essential conclusion is that according to Mr Thomson, the documents, exhibits 95 and 96 were prepared. There was a meeting between himself, [the appellant], Mr Bartlett, Mr Sayers. It took place ... where [the appellant] explained the transactions on a whiteboard to the gentlemen present. There was agreement to the course recommended and the documents were signed and Mr Thomson saw them signed. Now, of course ... that version is challenged by more sources than [the appellant] alone and many attacks on the credibility of Mr Thomson have been made and are put before you as reasons for distrusting his testimony or not accepting it fully. But these are questions for you and they will be made on all the evidence as a whole (ts 4194 - 4197).
240 Next, his Honour turned to the appellant's defence. After noting that the appellant's defence had to be gleaned from his questions to the witnesses and his addresses to the jury, his Honour said:
Well, not necessarily in the order in which [the appellant] presented them, but I think his essential propositions go this way.
First of all, he had a reputation for being fastidious and precise, he would say pedantic and insistent on observance of all the formalities and proprieties and had a skill in drafting and on legal matters. He elicited from a number of witnesses who had been present on occasions where he had been involved in meetings for distributions and so on, that he was punctilious in following the format of the meetings, that he would insert the date and time of a particular meeting on the document in front of him. He would systematically go through it insisting that everybody understood what was occurring. The procedure followed would be observed to the letter. Cheques, promissory notes and other documents would be circulated and then he would move on to the second meeting and similar procedures would be followed and so on. He maintained and the witnesses whom he asked this question confirmed that he had never asked anybody to backdate a document or propose the backdating of a document or anything like that, by implication putting before you that he would not be involved in anything involving a backdating.
Secondly, he maintained that the particular documents used to implement the false interest transaction, exhibits 95 and 96, were incongruous and did not reflect strict observance of the legal formalities. And in this regard, he instanced the presence of Nebraska as being a party to both of those resolutions when Nebraska was not, as we have seen, strictly speaking or indeed formally, a unit holder in Barminco. And the implication in his questions and in his submissions to you is that he would never have drafted a document of that kind or have overlooked the fact that Nebraska, being a party to this deed, was not a unit holder.
Well, those are matters for you to evaluate but I pointed out to you some days ago now that there are and were substantial legal reasons which would justify Nebraska being included in the parties who entered into legal obligations in each of those documents because of the obligation to take up units and pay for them.
Next, it was part of the prosecution case that exhibit 12, the manuscript document which is in your jury book after folio number 15 and which is confirmed to be in [the appellant's] handwriting, is an explanation entirely consistent with what Mr Hewitt said was put up on the whiteboard at the meeting that he attended and that Mr Thomson said independently was essentially the substance of the explanation ... [the appellant] put on the whiteboard, although on a different occasion. Now, as to that document, it has been proved to have been in [the appellant's] handwriting but he points out quite justifiably that it has no date, and neither it does. And accordingly, he submits to you that it is open to conclude that this was a note which he prepared for or used at the meeting in December of 2002 with Ms Grace and Mr Watson and Mr Hewitt to discuss how the issue of the special units should be accounted for within the books of Barminco, and for that matter, Bremerton and Nebraska, when it was brought to light by Ms Grace, that being a matter of some uncertainty or unusual experience for them at the time. Now, as to that particular matter, you would of course give it such consideration as you think fit. But the possibility of that document being produced at that meeting was not put by [the appellant] to Mr Hewitt or to Mr Watson when they gave their evidence. And as a consequence, you have been deprived of any answer which they might have given as to whether they remember any such document being used or produced or written up as a result of that meeting.
I have already explained to you the reliance which the prosecution makes on the almost exact correspondence, indeed, ... the actual exact correspondence between the figures for interest and deductions in this document, exhibit 12, and the contents of exhibits 95 and 96 and the amounts returned as income from Barminco in the '99 and 2000 years and received [as] distributions by Bremerton and Nebraska and the deductions claimed by Bremerton and Nebraska, which you are very familiar with now in that pyramid chart diagram that we have looked at many times.
Now, the next thing that [the appellant] says is that Mr Thomson made a statutory declaration in January 2003. It's exhibit 116 and we might just put that up on the screen, if possible. And that document declares under the provisions of the Evidence Act, which I explained to you, that on or about 1 May 2002, he discovered that he'd: Lost or misplaced the documents listed in the declaration along with a number of other important documents held on behalf of several clients ... and associated entities. And if you scroll down the list, you come to exhibits 95 and 96, the resolutions of 14 and 16 June, copies of which are attached and which are in the annexures.
Now, what [the appellant] submits to you is that if those resolutions have been lost by Mr Thomson [on] or before 1 May 2002, they could not have been used at a meeting in September and that they were brought into existence presumably at some time before May. The consequence if that were to be correct would be that somehow or other, there was anticipation by Mr Thomson of the need for some false interest scheme or maybe it's just not possible to conclude what might have been the position if that were true. But Mr Thomson, as you will remember, says that this was a clumsy declaration and that it was erroneous, and notwithstanding the obligations placed on anybody making the statutory declaration, this was a mistake or an error on his part. And although the promissory notes, he'd discovered they had been lost in May, he didn't discover that the resolutions had been lost until later, much later, and that they ... certainly had come into existence in or about September. Now, [the appellant] fastens on this point and says this is just one of many reasons to disregard Mr Thomson as a reliable witness and that his account of these meetings and the sequence is not reliable.
Well, again, those submissions carefully prepared and put to you by [the appellant] deserve careful attention and consideration and I'm sure you will ... give that attention to them but essentially his case is that he would not draw a document of the kind in exhibit 95 and 96 [and] that Mr Thomson's evidence is unreliable. That the document, exhibit 12, is not dated and because it's not dated it cannot be concluded that it was used as a basis for any explanation by him in relation to the events or alleged events of September 2002.
[The appellant] also emphasises that so far as compliance with the taxation law and tax obligations are concerned, his companies, Timebase, Keyworld Nominees and the Corpex Trust, all filed income tax returns and paid tax when due and that there was no suggestion that he was or ever had been in arrear[s] or in default in complying with the obligation to file income tax returns for those companies.
Essentially, he says to you that the prosecution has not proved the case alleged against him and how could it, when he was on such cold terms with Mr Thomson after mid-2002 when he, as he says, sacked Thomson and had this brisk meeting with him in the waiting lounge of the Bangkok Airport when they came across each other by coincidence and that he would not be a person with whom he would enter into any such enterprise, whether legal or illegal.
The case for the prosecution in relation to that, however, is that Mr Thomson was essentially following and complying with a design and instructions originating from [the appellant] who was the tax expert, who did have the influence at that time ... in suggesting or advising what steps should be made or taken in relation to taxation affairs of Barminco and that Mr Thomson simply was doing as he was asked and putting into effect a strategy designed by [the appellant] (ts 4197 - 4201).
241 After reviewing the evidence given by the witnesses, the trial judge directed the jury as to the evidence that was not part of the Crown's case against the appellant:
I direct you that it is no part of the evidence for the prosecution in the case against [the appellant] to use any part of the contents of the statements given by Mr Bartlett to the ACC or the statement, that's exhibit 196 or the accompanying letters from Mallesons Stephen Jaques to the ATO or to the ACC. Nor is it any part of the evidence in the case against [the appellant] to use either of the statements given by Mr Sayers to the ACC or the letters from Mallesons Stephen Jaques to the ACC or to the ATO contained in those statements, exhibits 193 and 195. Nor is it any part of the evidence in the case against [the appellant] [to use] any ... of exhibit 200, the tax settlement deed, because that was a matter negotiated solely between the ATO and the Bartlett and Sayers personnel. Nor is it any part of the case against [the appellant] to use so much of exhibit 15, Ms Grace's retirement letter as suggests reasons or motives by her for retirement. The fact of the retirement and its date and the delivery of the letter is part of the case but not the reasons given by Ms Grace. Similarly, the annexure on Grace's computer containing more reasons dealing with Kookynie for her resignation is not part of the case against [the appellant]. Nor is the letter exhibit 194 from Mallesons Stephen Jaques to the Australian Taxation Office on 1 December 2005 or the letter from Mallesons Stephen Jaques to the ACC on 19 August 2005, exhibit 191. And although it is part of the evidence in the case against [the appellant] in relation to the filing and amending of all the various tax returns, the evidence makes it plain that he was not actually involved in the preparation, drafting or filing of those various returns, although of course the prosecution contend that the idea behind the scheme which led to the special units being issued and the consequent deduction being claimed, originated with him (ts 4269 - 4270).
242 The trial judge canvassed, in the course of his remarks to the jury at the commencement of the trial, 'the possible permutations and combinations of what might eventuate in [the] case' (ts 903). After noting that the trial indictment alleged a conspiracy between five people, namely the four accused and Mr Thomson, his Honour said it was possible that the jury may conclude that there was only 'a conspiracy of four, not five'; alternatively 'a conspiracy of three'; or alternatively 'a conspiracy of two' (ts 903). His Honour did not tell the jury in his initial remarks that it might possibly conclude that none of the accused had been involved in a conspiracy with Mr Thomson or anyone else.
243 Counsel for the Crown informed the jury in his opening address that:
(a) a conspiracy requires at least two persons to be party to it (ts 910);
(b) it was necessary to determine on an individual basis whether each accused was guilty or not guilty of the charge of conspiracy alleged in the trial indictment (ts 910); and
(c) Mr Thomson was charged with an offence for his part in the matter and he had pleaded guilty and been sentenced (ts 982).
244 At the commencement of Mr Thomson's evidence-in-chief, counsel for the Crown led evidence from Mr Thomson that he had previously pleaded guilty in the Supreme Court 'to an offence related to [his] part in the matters that are the subject matter of this trial' and he was sentenced to a term of imprisonment (ts 1503).
245 Neither the appellant nor counsel for any of the other accused objected to the statements by the prosecutor in his opening address, or to Mr Thomson's evidence-in-chief, about Mr Thomson's plea of guilty and his sentencing.
246 His Honour did instruct the jury, in his summing up, that 'it is possible that you may decide to convict one or more or all of the accused or to acquit one or more or all of them', but that instruction was given in the context of the requirement for the jury to decide each of the four cases against the accused separately (ts 3981). The instruction was not given in the context of or by reference to Mr Thomson's plea of guilty.
247 In my opinion, it was necessary for the jury to be told that Mr Thomson had pleaded guilty and been sentenced for, in essence, his part in the matters the subject matter of the trial of the appellant and the other accused. In particular:
(a) the lengthy and extensive dealings between Mr Thomson and the appellant (including, but not limited to, dealings in relation to the Appointor Arrangement);
(b) the lengthy and extensive professional and business relationship between Mr Thomson, on the one hand, and Mr Bartlett and Mr Sayers, on the other;
(c) the ongoing involvement of each of Mr Thomson and the appellant in the taxation and accounting affairs of Barminco, Mr Bartlett and Mr Sayers;
(d) the employer/employee relationship between Mr Thomson and Ms Grace;
(e) the deterioration in the relationship between Mr Thomson, on the one hand, and each of the appellant, Mr Bartlett and Mr Sayers, on the other;
(f) the express naming of Mr Thomson in the trial indictment;
(g) Mr Thomson's status as a Crown witness and not an accused; and
(h) the complex factual matrix underpinning the Crown's case (including, but not limited to, the complexity of the Appointor Arrangement and the FIS),
made it inevitable that the jury would have to be told about Mr Thomson's plea of guilty and his sentencing.
248 However, the jury was not informed at any stage by counsel for the Crown or (more importantly) by his Honour that the fact that Mr Thomson had pleaded guilty and had been convicted upon his plea was not admissible against the appellant (or any of the other accused) in proof of the fact that he (or any of them) had participated in the conspiracy pleaded in the trial indictment.
249 Counsel for the Crown did not rely upon Mr Thomson's plea of guilty and his sentencing as factors which bolstered his credit.
250 However, the plea of guilty and the sentencing (and other material) were used by counsel for Mr Sayers to launch a rigorous attack on Mr Thomson's honesty and reliability. Counsel for Mr Bartlett supported counsel for Mr Sayers' attack on Mr Thomson.
251 The appellant referred to Mr Thomson's plea of guilty and sentencing in his cross-examination of Mr Thomson and in his opening and closing addresses.
252 Counsel for Ms Grace did not attempt to advance her case by reference to those matters.
253 It is true that neither the appellant nor counsel for any of the other accused requested the trial judge to direct the jury as to what use, if any, it could make of the plea of guilty.
254 In my opinion, it is apparent, on an objective appraisal of the trial record, that counsel for Mr Bartlett, counsel for Mr Sayers and counsel for Ms Grace made a rational decision, for the purpose of obtaining a forensic advantage, not to request his Honour to direct the jury on this issue. The Crown's case against the appellant was stronger than its case against Mr Bartlett and Mr Sayers, and was significantly stronger than its case against Ms Grace. Mr Thomson had pleaded guilty and been sentenced for, in essence, his part in the matters the subject of the trial of the accused. Mr Thomson maintained in his evidence that there had been a conspiracy as alleged in the trial indictment, but his evidence inculpated the appellant to a greater extent than Mr Bartlett and Mr Sayers, and to a much greater extent than Ms Grace. In these circumstances, the failure of counsel for Mr Bartlett, counsel for Mr Sayers and counsel for Ms Grace to request his Honour to direct the jury as to what use, if any, it could make of Mr Thomson's plea of guilty is capable of reasonable explanation on the basis that:
(a) Mr Thomson had, in essence, pleaded guilty to the conspiracy alleged in the trial indictment;
(b) the Crown had a strong case against the appellant, a materially weaker case against Mr Bartlett and Mr Sayers, and a relatively weak case against Ms Grace;
(c) counsel for Mr Sayers had directly, and counsel for Mr Bartlett had indirectly, used the plea of guilty and the sentencing to impugn Mr Thomson's honesty and reliability;
(d) the existence of a conspiracy between Mr Thomson and the appellant, but not the other accused, was consistent with his Honour's remarks at the commencement of the trial and with his Honour's summing up, and was not inconsistent with the manner in which counsel for Mr Bartlett, counsel for Mr Sayers and counsel for Ms Grace had fought their cases at trial; and
(e) in the circumstances, the absence of a direction to the jury in relation to the impermissible use of Mr Thomson's plea of guilty was likely to be significantly more damaging to the appellant than any of the other accused.
255 The appellant was self-represented at the trial. He did not have any legal qualifications. There was no evidence that he had any experience in criminal law or practice. In these circumstances, and after an objective appraisal of the trial record, there is no basis for deciding that the appellant made a rational decision not to request the trial judge to direct the jury as to what use, if any, it could make of the plea of guilty or to impute to the appellant the rational decision apparently made by counsel for the other accused. The appellant's reference, in his cross-examination of Mr Thomson and in his opening and closing addresses, to Mr Thomson's plea of guilty and his sentencing did not, in the circumstances, remove the necessity for an appropriate direction from the trial judge in relation to the impermissible use of Mr Thomson's plea.
256 I am satisfied that, in the circumstances, there was a real (as distinct from a fanciful) risk that, absent an appropriate direction from his Honour, the jury may attach some weight to Mr Thomson's plea of guilty in evaluating whether the appellant had conspired with Mr Thomson as alleged in the trial indictment and as maintained by Mr Thomson in his evidence. In particular, there was a real (as distinct from a fanciful) risk that, absent an appropriate direction, the jury may reason, in part, that, Mr Thomson having pleaded guilty in essence to the serious offence of conspiracy alleged in the trial indictment, it was likely that he had in fact agreed with at least one of the accused to carry out the alleged unlawful purpose. A direction from his Honour, to the effect that Mr Thomson's plea was not admissible against the appellant in proof of the fact that the appellant had been a party to the alleged conspiracy, was required to avoid a perceptible risk of a miscarriage of justice in relation to the impermissible use by the jury of the plea.
259 Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
261 In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:
As this Court's decision in AK v Western Australia ((2008) [2008] HCA 8; 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].
See also Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] - [51] (French CJ, Crennan, Bell & Keane JJ).
262 I will now recount various parts of the evidence given at the trial.
(a) Prior to 1999, the appellant had arranged for Mr Bartlett and Mr Sayers to acquire an entity which had some available losses for taxation purposes (ts 1509 - 1510).
(b) In early 2000, there was a meeting in Mr Thomson's office between the appellant, Mr Thomson, Mr Sayers and Mr Bartlett. At this meeting the appellant explained the Appointor Arrangement including the 'tax ramifications' of the arrangement for the appellant, Mr Bartlett and Mr Sayers (ts 1515 - 1516).
(c) In late March or early April 2000, there was a meeting between the appellant, Mr Thomson, Mr Bartlett and Mr Sayers. At this meeting the appellant summarised the legal opinion of Mr RK O'Connor QC in relation to the efficacy, for taxation purposes, of the Appointor Arrangement. There was discussion at the meeting as to whether another legal opinion should be obtained. The appellant suggested that a barrister, Dr John Hockley, should be retained (ts 1531 - 1532).
(d) On 16 May 2000, there was a meeting at Solomon Brothers, solicitors, who had instructed Mr RK O'Connor QC and Dr Hockley to provide legal opinions in relation to the Appointor Arrangement. This meeting was attended by Paul Fletcher, who was a partner of Solomon Brothers, the appellant, Mr Thomson, Mr Bartlett and Mr Sayers. The appellant brought to the meeting a document entitled 'Transactions 16 May 2000, phase 1' (exhibit 5). The appellant 'walked' the other people at the meeting 'through the document'. Also, the appellant brought to the meeting a document entitled 'Transactions 16 May 2000, phase 2' (exhibit 6). The appellant told the other people at the meeting that it would be necessary to implement the Appointor Arrangement in accordance with the procedure set out in the documents. In addition, the appellant provided other documents at the meeting that were relevant to the Appointor Arrangement (exhibits 80 and 81) (ts 1536 - 1540).
(e) On 25 October 2001, the appellant and Mr Thomson met with officers from the ATO who were investigating the Appointor Arrangement (ts 1233 - 1234, 1288). Shortly after that meeting, the appellant and Mr Thomson had a meeting with Mr Bartlett and Mr Sayers at which the appellant explained to Mr Bartlett and Mr Sayers what had happened at the meeting with the ATO officers. Later in 2001, the appellant recommended to Mr Thomson, Mr Bartlett and Mr Sayers that promissory notes which had been issued in connection with the Appointor Arrangement should be 'protected' from potential creditors (ts 1571 - 1576).
(f) In 2002, Mr Thomson received a copy of a legal opinion dated 25 June 2002, prepared by Mr RK O'Connor QC, in relation to the Appointor Arrangement. In 2002, Mr Thomson discussed the opinion with the appellant (ts 1592).
(g) In mid-2002, Mr Bartlett or Mr Sayers or both of them expressed some dissatisfaction with the services Mr Thomson had provided. The dissatisfaction related to the late preparation of accounts and taxation returns. At a meeting Mr Thomson had with the appellant, Mr Bartlett and Mr Sayers, after the appellant, Mr Bartlett and Mr Sayers had returned from a visit to Singapore, 'it was made very clear they were unhappy with [Mr Thomson's] work'. At about this time it was arranged that Ms Grace would be, in effect, seconded to Barminco with a view to completing the accounts and taxation returns for various entities within the Barminco group. She commenced work at Barminco's office in about May or June 2002 (ts 1593 - 1594).
(h) Ms Grace's work revealed that during the 1999 taxation year Barminco had a net profit of $7,084,170. Mr Thomson believed that Ms Grace informed the appellant of Barminco's net profit. There was a meeting at Barminco's office attended by Mr Thomson, at least initially by the appellant, and a number of other people including Charles Watson (Barminco's in-house accountant) and, possibly, Geoffrey Hewitt (an accountant who had previously worked for the appellant). Mr Thomson believed that the appellant had arranged for Mr Hewitt to assist Ms Grace in the work she was carrying out at Barminco's office. At the meeting there was discussion about various methods of reducing the profit. The appellant pointed out to Mr Thomson that Barminco's net profit 'may jeopardise the Appointor Arrangement' (ts 1599 - 1601).
(i) Mr Thomson had a number of meetings with the appellant in which they discussed ways in which Barminco's net profit of $7,084,170 could be reduced to nil so that it would not be necessary to distribute the profit to anyone (ts 1600).
(j) After the meetings referred to in pars (h) and (i) above, Mr Thomson, at the request of the appellant, attended a meeting at Barminco's office where the appellant said 'we had to sort that problem out and he proposed an arrangement whereby an interest claim would be incurred such that it would effectively wipe out the profit that was flowing to the trusts'. No-one was present at this meeting apart from the appellant and Mr Thomson. The appellant explained to Mr Thomson that there would be 'an issue of units that were partly paid, interest would be charged on those and that the Family Trust[s] would be able to claim that interest in the '99 year, whereas Barminco would only have to return that interest in the 2000 year'. The appellant said it would be necessary to create minutes evidencing the issue of the units. There would need to be a meeting and the minutes would have to be signed by the relevant parties. Mr Thomson believed that, at that stage, the appellant gave him 'some draft minutes' which Mr Thomson was 'required to have typed up'. The draft minutes were handwritten. Mr Thomson said he thought there were three draft handwritten sets of minutes but, in cross-examination, agreed that it appeared there were only two. The appellant told Mr Thomson that he wanted the minutes typed on 'old minute paper so that they looked authentic'. Mr Thomson took the handwritten documents and gave them to his secretary, Ms Paternoster. He instructed her that they were to be 'typed up on old minute paper' and with an old typewriter he had at his office. Ms Paternoster produced the typewritten minutes. Mr Thomson gave them to the appellant. The appellant made some amendments to the typewritten minutes and returned them to Mr Thomson. Mr Thomson arranged for Ms Paternoster to make the amendments. Mr Thomson then gave the final typewritten documents to the appellant (ts 1623 - 1625, 1922).
(k) In late August or September 2002, there was a meeting at Barminco's office attended by the appellant, Mr Thomson, Mr Bartlett and Mr Sayers. At the meeting, the appellant explained that a problem had arisen because Mr Thomson had underestimated the profit of Barminco for the 1999 taxation year and, as a result, if the ATO challenged the legality of the Appointor Arrangement, the profit arising out of the 1999 taxation year may cause a problem because of the 'pattern of distribution'. The appellant explained the purpose of the issue of the units and the creation of an interest deduction which would in effect 'negate' the profit for the 1999 taxation year. The appellant set out figures and words on a whiteboard. The appellant said that the minutes containing the purported resolutions of the unitholders of BUT at the meetings purportedly held on 14 and 16 June 1999 had been prepared to evidence the issue of the units. Mr Bartlett and Mr Sayers signed the minutes at the meeting and the appellant took custody of the signed minutes (ts 1635 - 1638).
264 Mr Thomson was cross-examined extensively by the appellant (ts 1695 - 1931). During that cross-examination, Mr Thomson said:
(a) The appellant, and not Mr Thomson, was advising Mr Bartlett and Mr Sayers in connection with the Appointor Arrangement (ts 1739).
(b) Prior to 25 or 26 October 2001, Mr Thomson had not told the appellant, Mr Bartlett or Mr Sayers that he was neglecting the Barminco group's work (ts 1837).
(c) In May 2002, Mr Bartlett told Mr Thomson that he was not happy that Mr Thomson was receiving part of the commission payable to the appellant in connection with the Appointor Arrangement and that he was not happy that Mr Thomson had been charging for work done which was not up to date (ts 1865 - 1866).
(d) Mr Thomson did not recall the appellant telling him that he was 'sacked', but he did recall that in 2002 he ceased to be the accountant and tax agent for the appellant and his entities, and Mr Hewitt took over that work (ts 1828 - 1829).
(e) Mr Thomson disagreed that, after the appellant, Mr Bartlett and Mr Sayers returned from Singapore, Mr Thomson and the appellant were 'barely speaking to each other'. Mr Thomson said they were on reasonable speaking terms. They had mutual clients, namely Mr Bartlett and Mr Sayers. The appellant was advising Mr Bartlett and Mr Sayers on a number of matters (ts 1871 - 1872).
(f) Mr Thomson agreed that the appellant terminated his services, and the services of Thomson Fisher & Co, prior to Mr Thomson's departure on holiday on 3 August 2002 (ts 1898 - 1899).
(g) In late August 2002, Mr Thomson saw a document entitled 'Review of Barminco's Profit and Loss Statement' dated 15 August 2002 (exhibit 93.1) (ts 1879). This document was on the letterhead of Thomson Fisher & Co and had been prepared by Ms Grace in respect of BUT. It revealed that in the 1999 taxation year there had been a profit of $7,534,471. The taxation reconciliation prepared by Ms Grace (exhibit 93.2) identified a net profit of $7,084,170.
(h) Mr Thomson's relationship with the appellant between 25 August 2002 and 30 September 2002 comprised very brief conversations. The conversations were very business-like, there was no 'idle chit chat' and no 'friendly banter'. During this period they passed each other, coincidentally, in the departure lounge at Bangkok Airport. Their encounter was 'cold' (ts 1900).
(i) Mr Thomson agreed that in 1999 all accounting records at Thomson Fisher & Co, including minutes and resolutions, were computer-generated. Mr Thomson nevertheless confirmed that the handwritten minutes relating to the FIS were typed on 'old minute paper' using a typewriter (ts 1923).
(j) Mr Thomson said he was 'not positive' whether the appellant attended Thomson Fisher & Co's office to collect the typewritten minutes that were prepared from the handwritten drafts given to him by the appellant or whether he gave them to the appellant at Barminco's office. However, Mr Thomson reiterated that the initial typewritten minutes were returned to the appellant for his review (ts 1886).
(k) Mr Thomson denied having presented photocopied minutes to a meeting after 4 September 2002 but before 30 September 2002 attended by, at least, the appellant, Mr Thomson, Mr Bartlett and Mr Sayers. Mr Thomson also denied stating at the meeting that unitholder resolutions had been lost or misplaced by him at the same time as he lost four promissory notes relating to the Appointor Arrangement (ts 1928 - 1929).
(l) Mr Thomson agreed that he had lost or misplaced the promissory notes. He had prepared and made statutory declarations in relation to the loss or misplacement of the notes and other documents. Mr Thomson thought he had consulted the appellant about the matter (ts 1838).
(m) In a statutory declaration dated 15 January 2003 (exhibit 116.1), Mr Thomson declared that, on or about 1 May 2002, he discovered that he had lost or misplaced the documents listed in the declaration, together with a number of other important documents. The alleged lost or misplaced documents included exhibits 95 and 96.
(n) Mr Thomson was cross-examined about the fact that, on his evidence, exhibits 95 and 96 did not come into existence until August or September 2002 and that could not be the case if his statement in the statutory declaration to the effect that he discovered in May 2002 that he had lost or misplaced them was true. Mr Thomson said the statutory declaration was badly drawn or mistaken. The statement may have been true in relation to the promissory notes, but it was not true in relation to exhibits 95 and 96 and, accordingly, that part of the declaration was an error (ts 1929 - 1930).
265 Counsel for Mr Sayers suggested to Mr Thomson in cross-examination, in effect, that:
(a) Mr Thomson had prepared exhibits 95 and 96 himself to replace earlier minutes which he had lost; and
(b) Mr Thomson had surreptitiously produced exhibits 95 and 96 and had them signed by Mr Bartlett and Mr Sayers so as to replace the lost documents which had been prepared and signed at an earlier time when the transaction had occurred.
266 Mr Thomson rejected the suggestion. He stated that either the appellant or him took the signed minutes away from the meeting with Mr Bartlett and Mr Sayers. However, irrespective of who took away the originals, Mr Thomson came into possession of them shortly afterwards (ts 2059). At some stage Mr Thomson obtained copies of the originals. He did not deliberately lose the originals (ts 2061).
267 On 13 September 2002, Ms Grace sent a memorandum to the appellant (exhibit 102), by facsimile transmission, which reads:
Please find attached a draft [Ultimate Beneficiary] Statement on behalf of Barminco Unit Trust for the year ended 30th June 1999. I have spoken to the ATO (Gary Schubert) and confirmed the following:
...
In the case of both R G Sayers Family Trust and P M Bartlett Family Trust it can be clearly shown that the deduction for interest is greater than the distribution received and therefore no residual needs to be shown.
I now request that you review the statement and advise if you are happy for it to be lodged.
(a) Mr Fletcher was acquainted with the appellant. He first met him in 1984. At that time both Mr Fletcher and the appellant were employed by Lavan Solomon, solicitors. The appellant was undertaking work within the taxation practice of the firm. At some stage the appellant left the employ of Lavan Solomon and commenced working for Irdi & Associates, solicitors (ts 1087 - 1088).
(b) After he commenced working for Irdi & Associates, the appellant occasionally referred clients to Mr Fletcher who was a taxation specialist (ts 1089).
(c) On 14 February 2000, the appellant had a conference with Mr Fletcher and Mr RK O'Connor QC, at Mr O'Connor's chambers, in connection with the Appointor Arrangement (ts 1090 - 1093; exhibit 19).
(d) The appellant prepared a first draft of a 'deed of appointment of new appointor' in connection with the Appointor Arrangement. Mr Fletcher 'tidied the draft up'. Mr Fletcher was 'partially responsible' and the appellant was 'partially responsible' for the document (ts 1098 - 1099).
(e) On 16 May 2000, there was a meeting at the offices of Solomon Brothers attended by Mr Fletcher, the appellant, Mr Thomson, Mr Bartlett and Mr Sayers. At the meeting, documents were signed in connection with the appointment of new Appointors to the Bartlett Family Trust and the Sayers Family Trust (ts 1138).
269 Mr Fletcher was cross-examined by the appellant. During that cross-examination, Mr Fletcher said:
(a) When Mr Fletcher commenced working at Lavan Solomon in 1984, the appellant was working with a taxation partner at the firm and, on Mr Fletcher's understanding, the appellant was 'an article[d] clerk doing five-year articles' (ts 1140).
(b) The appellant was 'involved in research, drafting for the partner to settle, letters of advice ... opinions or parts of opinions, objections' (ts 1142).
(c) The appellant appeared to Mr Fletcher to be 'very familiar with the Income Tax Assessment Act' (ts 1142).
270 Paul Dodds was employed by the ATO in about January 1988 and at all material times afterwards (ts 1218 - 1219).
271 In about October 2001, Mr Dodds spoke to the appellant. The appellant told him that he was the author of the Appointor Arrangement. The appellant said that he had initially drafted the deeds relating to the arrangement and the drafts were then 'vetted by counsel' (ts 1225 - 1226).
272 Mr Dodds was cross-examined by the appellant. During cross-examination, Mr Dodds said that, on 25 October 2001, he attended a planned meeting at Thomson Fisher & Co. Those present at the meeting were Mr Dodds, another ATO officer (Michael Ogden), the appellant and Mr Thomson. Mr Dodds was of the opinion that the appellant was 'partially cooperating' with the ATO's inquiries in relation to the Appointor Arrangement, but the appellant had not provided all of the documents which had been requested (ts 1251 - 1252).
273 Mr Ogden gave evidence. His evidence did not relevantly and materially add to or detract from the evidence given by Mr Dodds.
274 Mr RK O'Connor QC said in his evidence-in-chief that in mid-February 2000 he was approached by the appellant in relation to the Appointor Arrangement (ts 1317). Mr O'Connor confirmed that, on 14 February 2000, there was a meeting at his chambers attended by the appellant, Mr Fletcher and him (ts 1317). Mr Fletcher instructed Mr O'Connor to prepare a written opinion in relation to the taxation implications of the Appointor Arrangement (ts 1317 - 1318).
275 Agostino Irdi, a solicitor, gave evidence that between 1987 and 1996 the appellant was employed by his firm, Irdi & Associates, as a taxation consultant (ts 1366 - 1367).
276 Mr Irdi explained the arrangement between the appellant and Irdi & Associates as follows:
[The appellant] worked in our office and he had the full facilities available to him. He employed his own secretary and ... he would then pay me 50 per cent of whatever fees he generated on his clients (ts 1367).
277 Although the appellant was a taxation consultant 'working with or at [Mr Irdi's] firm', the appellant 'very much' had his own clients (ts 1368). Mr Irdi believed that when the appellant ceased working as a taxation consultant at Irdi & Associates, he set up his own consultancy business (ts 1368). However, Mr Irdi and the appellant remained friends (ts 1368). Each of them referred clients to the other (ts 1368). The appellant informed Mr Irdi about the Appointor Arrangement (ts 1368). Mr Irdi understood that the appellant was the author of the arrangement (ts 1368). In about late September or early October 2002, the appellant contacted Mr Irdi in connection with the preparation by Irdi & Associates of security documents relating to loans to be made by an 'overseas party', namely Crossline, to the Barminco group (ts 1377). The appellant told Mr Irdi that he was advising the Barminco group in relation to 'restructuring options and also for a possible sale of the group' (ts 1379 - 1381).
278 Mr Irdi said, in cross-examination by the appellant, that the work the appellant undertook while he was a consultant at Irdi & Associates was 'tax advice, structuring, advice on trusts, creating trusts' (ts 1450).
279 Mr Irdi agreed, in cross-examination by counsel for Mr Bartlett, that in the past he had expressed the following views, which he genuinely held, in relation to the appellant:
He is one of these geniuses that has a thorough understanding of the Tax Act. He has always impressed me and certainly ... the clients, of his knowledge of the cases, the sections ... He could recite sections almost verbatim. He lived and breathed tax. He was just phenomenal to watch (ts 1481).
280 Ms Paternoster said in evidence-in-chief that she was employed as a secretary with Thomson Fisher & Co between 1993 and 2006 (ts 2262). She identified her handwriting on the promissory notes issued in connection with the Appointor Arrangement (ts 2263). She had printed 'Crossline Overseas Ltd' on each of the notes (ts 2263). She was in Mr Thomson's office when she printed those words (ts 2263). Mr Thomson gave her the name and asked her to print it on the notes (ts 2263).
281 Ms Paternoster was shown exhibit 14 (which was identical to exhibit 96) and exhibit 95, being the typewritten documents setting out the purported resolutions of unitholders of BUT, one at a meeting purportedly held on 14 June 1999 and the other at a meeting purportedly held on 16 June 1999. She gave this evidence-in-chief in relation to the creation of the typewritten documents:
Could you tell us, please, your role in relation to what happened in the creation of these documents?---Yes. I was given pages of handwritten notes and requested to type up these minutes on old style minute paper as it is on the exhibit, not on the computer but on a type - electric typewriter.
And who requested you to do that?---Trevor Thomson.
Now, in relation to the handwritten notes, were they written - who's handwriting was that?---In my memory they were Trevor Thomson's handwriting.
All right. And did you type the document from the handwritten notes?---I did, the first time, yes.
And then what happened?---I handed both sets back to Trevor Thomson and then two to three weeks later they were given back to me with handwritten amendments on these, the ones I'd typed, and I was requested to immediately retype them again in exactly the same format with just - incorporating the amendments.
All right. And when you originally received the handwritten document to type, do you recall whether or not the handwritten documents had dates on them?---Only the dates of 'held on 14 June 1999' and 'held on 16 June '99'.
It has those dates?---It had those dates on them, yes.
Right. Did you - did you say anything to Mr Thomson in relation - - - ?--- - - -
- - - to this?---Sorry. I queried as to why they had to be done [on] a typewriter - - -
Yes?---- - - - rather than being done on the computer which, as you would understand, if it's done on the computer if you make a mistake you can, you know, backtrack and sort of correct it.
And what did Mr Thomson tell you?---That it had been Mr Dunn's instructions they were to be done - they didn't want records kept. That's why they had to be done on a typewriter, not on a computer where it could be held, you know, further on down the track on the hard disk.
And was anything said about the paper that was to be used for the typing?---Just had to be the old style minute paper which we had in the office in - on corporate files anyway. Had to ensure that the sections lined up with 1999 (ts 2265 - 2266).
282 Ms Paternoster was cross-examined by the appellant in relation to the creation of exhibits 95 and 96. The following exchange, as to the amendments to the first typewritten drafts of exhibits 95 and 96, occurred:
And when was the next occasion that you saw those two resolutions that you'd typed up for him?---I would say probably three to four weeks later.
Okay?---I could not be exactly sure on the time span, but it was a matter of weeks.
Yes. It certainly wasn't days. It was weeks?---Well, it wasn't days, no.
Yes?---Wasn't days. Two to three weeks. Maybe three to four, but it was not just days, it was weeks.
Thank you. Now, when they came back to you were they already signed or not signed?---No, the - no, from memory the - no, they weren't signed, because they needed to be amended. I understood - no, go on.
And Mr Thomson had made amendments on them, had he?---From my memory it was you who'd made the amendments on them, Mr Dunn.
Why do you - why do you say that it was me?---Because I understood that once I'd given them back that I was doing them on your instructions to Mr Thomson.
That was - - - ?---That was - - -
- - - did you ever discuss these resolutions with me?---Did I?
Yes?---No, no way.
And there was no - was there any contact between you and I in relation to the typing or production of these?---No, there wasn't, no.
So the - - - ?---Was all through Mr Thomson.
- - - the only reason that you would assume that the corrections were mine is because Mr Thomson said that. Is that correct?---Yes, yes, they'd been submitted to you.
So other than Mr Thomson having said that to you, you - you would have no idea as to who made those corrections?---True (ts 2284).
283 The appellant asked Ms Paternoster some questions about her evidence that Mr Thomson told her to type exhibits 95 and 96 on a typewriter rather than a computer:
I take it that Thomson Fisher & Co had an old typewriter in 2002, did it?---They did. It was an electric golf ball typewriter.
...
And why did Thomson Fisher & Co actually have an old typewriter?---It was used for typing envelopes.
No other reason?---There was odd - odd things typed up on it, but it was not - not used very often, that's for sure.
And when Mr Thomson asked you to type the two resolutions on a typewriter, did you consider that that was a strange request?---I did and I queried it with him.
And can you just elaborate on your 'queried it with him'. Can you be more specific than that?---I queried the fact I was having to do it on the typewriter and to find old minute paper within the office and his comment, of which I have sworn in my statement is that you did not - you yourself, Mr Dunn, did not want any record kept around - around the place.
Once again, that was Mr Thomson telling you that?---That was Mr Thomson telling me that, yes. And that was his explanation when I queried why I was typing these - these documents on a typewriter and documents of a few years previously (ts 2286).
284 Mr Fisher, a chartered accountant, was in partnership with Mr Thomson between 1996 and 2006 (ts 2298). Mr Fisher said, in cross-examination by counsel for Mr Bartlett, that he considered the appellant to have 'far more experience in tax work than [he] had' (ts 2321). Mr Fisher also said, in cross-examination by counsel for Mr Sayers, that the appellant was 'extremely bright', 'extremely meticulous' and 'a lot more knowledgeable' than he was in the taxation area (ts 2321).
285 Sandra Amaranti-Smith was employed from time to time between about 1986 and about 2005 as the appellant's secretary. Counsel for the Crown showed Ms Amaranti-Smith the undated handwritten document entitled 'Special Units', being exhibit 12. The undated typewritten version of exhibit 12, with minor variations, was also entitled 'Special Units', being exhibit 13. I have reproduced exhibit 13 at [51] above. Ms Amaranti-Smith said the handwriting in exhibit 12 was the appellant's (ts 2353). The appellant's cross-examination did not relevantly and materially weaken or undermine her evidence on that point.
286 Jillian Saint was an assistant commissioner of international tax at the ATO between 1994 and 2002. She has a Bachelor of Laws degree and a Master of Laws degree. In early 2003 she applied for employment with Irdi Legal, solicitors, the successor to Irdi & Associates (ts 2364). She met with Mr Irdi and was offered a position by him (ts 2365). The offer was subject to the agreement of the appellant, with whom she would be working (ts 2365). Mr Irdi told her that the appellant 'did a lot of his tax work for his clients and [she] had to get on with [the appellant] before [Mr Irdi] would engage [her]' (ts 2365). Subsequently, Ms Saint met with the appellant who told her that he (rather than Mr Irdi) wanted to employ her (ts 2365). She accepted the appellant's offer of employment and subsequently entered into a written employment agreement with his associated entity, Misty Mountain Pty Ltd (ts 2365, 2376). Ms Saint and the appellant signed the agreement (ts 2376). After commencing work with the appellant, Ms Saint ascertained that the appellant's work for his clients was 'basically tax schemes' (ts 2365). She worked on particular tax schemes including the Appointor Arrangement (ts 2365). Her instructions in relation to the Appointor Arrangement were 'to prepare the case ready for trial in the event that the arrangement was challenged by the Tax Office' (ts 2365 - 2366).
287 Mr Hewitt gave evidence that in about July 2002 the appellant had told him that he was not 'happy' with Mr Thomson, 'specifically, in the role that [Mr Thomson] was supposed to be doing for [the appellant]' (ts 2394 - 2395). Mr Hewitt agreed to become the new accountant and tax agent for the appellant and his associated entities (ts 2395).
288 Mr Hewitt said that in September 2002 he attended a meeting where the appellant made a presentation using a whiteboard (ts 2392). The people at the meeting comprised the appellant, Mr Thomson, Ms Grace, Mr Watson (who was then the financial controller of Barminco), Mr Bartlett, Mr Sayers and Mr Hewitt. The meeting was at Barminco's office (ts 2392). Mr Hewitt gave the following account of the appellant's presentation:
And can you tell us, please, what occurred in relation to this presentation? There's a whiteboard there. Mr Dunn's giving a presentation. Is that right?---Yes.
And what - what did it relate to? What - what was said?---My recollection, it was related to outlining on the whiteboard a - a matter of issuing units in a unit trust, being Barminco Unit Trust, and there being a - interest on a loan that would be an expense in relation to that transaction. I recall then after it was explained about the only other thing at that meeting that I recall was Greg came to sit back down or turn to - and turned to Trevor, who was sitting opposite me, Trevor Thomson - that, 'Trevor, you'll need to find that minute - that relate[s] to the transaction.'
'You'll need to find that minute,' and - and was there any stress of any word said in relation to the - this - what was said?---No, there was no stress. I don't recall any response by Trevor or anyone else to - to that comment. It was along the lines that, 'You'll need to find - you can find that minute,' or, 'You'll need to find that minute.'
Would you have a look, please, at exhibit 12? You have a look at that document. Do you recall whether any of the figures written on that document appeared on the whiteboard that you saw at Barminco?---Sir, I can't specifically say that I recall these figures, no, but it certainly seems to be the - the matter - the - the same matter that I'm - I've just described, the issue of special units or units for - unit trust and an interest expense related to it (ts 2392 - 2393).
289 Mr Hewitt accepted, in cross-examination by the appellant, that the appellant's financial records were 'meticulous and well kept'; the appellant was a 'stickler for meetings and drafting up minutes for meetings and conducting meetings correctly'; Mr Hewitt had never been in a meeting attended by the appellant 'where there was even the suggestion of backdating minutes'; and Mr Hewitt had never been at a meeting attended by the appellant where backdated minutes were presented (ts 2396).
290 Mr Hewitt reiterated in cross-examination by the appellant his earlier evidence about the appellant's whiteboard presentation:
As I said earlier when shown [exhibit 14], had I seen it before, I don't recall the figures that were placed on the board so the subject matter was all that I recall. The subject matter was in relation to the issue of units and an interest expense. Other than that, I can't be more specific as to figures that were put on the board (ts 2398).
291 Ian Cochrane, a solicitor, had performed legal work on behalf of Mr Sayers since 1993 and for Mr Bartlett since about 1996 (ts 2436 - 2437). He met the appellant in around 2001 (ts 2437). At that time there was discussion about a merger between the businesses of Ausdrill Ltd, a public company of which Mr Sayers was the managing director, and Barminco (ts 2437 - 2438). As at 2001, when Mr Cochrane met the appellant, the appellant was providing advice to Mr Bartlett in connection with the possible merger (ts 2438).
292 In October 2001, Mr Sayers gave Mr Cochrane the legal opinions of Mr RK O'Connor QC and Dr Hockley in relation to the Appointor Arrangement, and asked him to review and comment on the opinions (ts 2438). Mr Cochrane undertook that task and advised Mr Sayers that he 'thought it was pushing the boundaries and that they were aggressive structures; that [he] wasn't entirely comfortable with them' (ts 2438).
293 In early November 2002, Mr Cochrane was provided with a copy of a letter dated 5 November 2002 from Irdi Legal to Barminco in relation to Crossline (exhibit 53). In the letter, Irdi Legal said it acted for Crossline and that Crossline was the holder of various promissory notes in the total amount of $32,400,000 issued by Barminco. Irdi Legal demanded that Barminco provide a bank cheque for $32,400,000 payable to Crossline in exchange for the delivery of the original promissory notes. Barminco instructed Mr Cochrane to deal with Mr Irdi and respond to that letter (ts 2439).
294 Mr Cochrane gave evidence about a meeting he had with the appellant and Mr Watson in early November 2002 (ts 2439). They told him that Crossline was 'a structure set up ... in Jersey' by a firm called Strachans and that Crossline was 'ultimately controlled by two trusts, the beneficiaries of which were the Bartlett family and the Sayers family' (ts 2439).
295 On 11 November 2002, Mr Cochrane attended a meeting at the offices of Irdi Legal. The meeting was attended by Mr Irdi, Mr Cochrane, Michael Lundberg (a lawyer who worked with Mr Cochrane) and Mr Watson. After the meeting Mr Cochrane received instructions from Mr Bartlett and Mr Sayers to enable him to 'understand the structures that had been put in place', including the Appointor Arrangement and Crossline (ts 2442 - 2443).
296 By letter dated 18 November 2002 from Irdi Legal to Mr Cochrane (exhibit 54), Irdi Legal on behalf of Crossline made a proposal to resolve the dispute relating to the promissory notes. The proposal by Crossline included the provision of security over assets owned by Barminco and by Mr Bartlett and Mr Sayers for the purpose of securing the amounts payable under the promissory notes.
297 On 22 November 2002, Mr Cochrane had another meeting with the appellant. At the meeting the appellant 'continued to explain' to Mr Cochrane 'the background to the structures' (ts 2444). The appellant told Mr Cochrane that the promissory notes were issued for the purpose of capitalising BUT because Barminco's auditor had said there was a deficiency (ts 2459).
298 By letter dated 13 May 2003 (exhibit 186), Barminco sent Mr Cochrane copies of various documents, including copies of the purported resolutions of unitholders of BUT at the meetings purportedly held on 14 and 16 June 1999 (exhibits 95 and 96).
299 In November 2004, Mr Cochrane travelled to Singapore (ts 2452). The appellant, Mr Bartlett and Mr Sayers also went to Singapore at that time (ts 2452). Mr Cochrane had a meeting with Mr Egglishaw from Strachans in connection with Crossline (ts 2452 - 2453). The appellant introduced him to Mr Egglishaw (ts 2453). While he was in Singapore, Mr Cochrane had separate discussions with the appellant 'concerning the various structures that [had] been put in place for Bartlett and Sayers for the various years, 2000 through to ... 2004' (ts 2454). Mr Bartlett and Mr Sayers were present during some of those discussions (ts 2454).
300 On or about 17 June 2005, Mr Cochrane had a meeting with the appellant and the appellant's lawyer, David Shaw, in Bangkok (ts 2458). At the meeting Mr Cochrane raised with the appellant the issue of the 79.9 million special units in BUT (ts 2458). Mr Cochrane made a note of the appellant's explanation in relation to the issue of the special units, which reads: 'Trevor [Thomson] produced ... a 1999 resolution he told me [amended] the unit trust which allowed Barminco to issue partly paid units. [The appellant] will check this' (ts 2458).
301 Mr Cochrane said, in cross-examination by the appellant, that he had a conversation with the appellant in June 2005 in Bangkok. During this conversation the appellant told him that there was a '1999 resolution' in relation to the allotment of 79.9 million special units in BUT which Mr Thomson had prepared (ts 2524).
302 Mr Cochrane was recalled to give further evidence. The trial judge clarified with Mr Cochrane the following matters:
(a) when he was in Singapore in November 2004, Mr Cochrane had only one meeting with Mr Egglishaw but a number of meetings with the appellant (ts 3000); and
(b) Mr Cochrane visited Bangkok on two separate occasions in June and August 2005 and, on both occasions, met with the appellant and his lawyer, Mr Shaw (ts 3000).
303 Jonathan Young is a chartered accountant. He works in the stockbroking industry. Since 1996 he has been a director of Barminco (ts 2603).
304 Mr Young said, in cross-examination by the appellant, that, to the best of his memory, Mr Thomson was a director of Barminco during the 1998, 1999 and 2000 taxation years (ts 2616).
305 Mr Young recalled seeing the appellant at Barminco's office in 2002 (ts 2616). He said the appellant was at Barminco's office 'in relation to advice that [the appellant was] giving on taxation planning and structuring' (ts 2617).
306 Mr Watson joined the Barminco group in January 1998. In October 1999 he became the financial controller of the Barminco group. In June 2001 he was appointed the finance director of the Barminco group. At the time of the trial he continued to hold that office (ts 2651 - 2652).
307 Mr Watson said, in cross-examination by the appellant, that:
(a) between 1998 and 2003 Mr Thomson was the director of Barminco who was responsible for 'strategic planning and tax compliance issues' (ts 2687);
(b) at the 'board level of Barminco', if there were any issues in relation to tax planning and tax compliance then the board would refer those matters to Mr Thomson (ts 2688);
(c) he was present at a number of meetings where agreements were made to distribute the profits of BUT; these meetings were called 'distribution meetings'; typically, these meetings were attended by the appellant, Mr Thomson, Mr Watson, Mr Bartlett and Mr Sayers; and at some of the distribution meetings promissory notes were issued or endorsed (ts 2690);
(d) the appellant collected the diagrams, and Mr Thomson collected the minutes and the promissory notes, at the end of the meetings, there was never any suggestion of backdating any documents and the appellant was 'pedantic' (ts 2693, 2695);
(e) he recalled attending meetings with the appellant where the appellant used a whiteboard (ts 2694 - 2695); and
(f) he could not recall attending a meeting at which the appellant suggested that a document be backdated (ts 2695).
308 Mr Watson said, in cross-examination by counsel for Ms Grace, that on 11 December 2002 he attended a meeting with the appellant, Mr Hewitt and Ms Grace (ts 2936 - 2937). Ms Grace had previously shown Mr Watson the minutes, being exhibits 95 and 96 (ts 2934 - 2935). At the meeting there was a discussion as to 'the appropriate and proper way to account for the transaction' referred to in exhibits 95 and 96 (ts 2936 - 2937).
309 Mr Watson confirmed in re-examination that the first occasion on which he saw the purported resolutions dated 14 and 16 June 1999 was shortly prior to November 2002 (ts 2937). The purported resolutions were shown to him by Ms Grace (ts 2938). Subsequently, Mr Watson had a meeting with the appellant in order to deal with the transactions recorded in the purported resolutions (ts 2938).
310 It is unnecessary to reproduce any of the evidence given by the other witnesses called by the Crown, namely Carol Hancock, Cristy-Ann Shore, Robin Romero, Aaron Ashboth and Robert Philp.
311 Also, it is unnecessary to reproduce any of the evidence given by the witnesses called by the counsel for Mr Bartlett and counsel for Mr Sayers.
312 Ms Grace elected not to adduce any evidence (ts 3301).
313 I am satisfied, on my examination of the trial record and after weighing the evidence, that the Crown proved beyond reasonable doubt that the appellant conspired with Mr Thomson, with the intention of dishonestly causing a loss to a Commonwealth entity (namely, the Federal Commissioner of Taxation), contrary to s 135.4(3) of the Code, as alleged in the trial indictment. I am satisfied to the criminal standard of proof that the appellant agreed with Mr Thomson, and intended to agree with him, dishonestly to cause a loss to the Federal Commissioner and that the appellant intended that the conspiracy would be carried out or performed. Also, I am satisfied beyond reasonable doubt that the appellant devised the FIS in August 2002 as a means of fraudulently reducing the declared income of the Bartlett Family Trust and the Sayers Family Trust for the 1999 taxation year and that the appellant procured Mr Thomson to prepare false backdated minutes of meeting evidencing the issue in June 1999 of the special units in BUT. Further, I am satisfied to the criminal standard of proof that the preparation and use of the false backdated minutes of meeting was an overt act committed by each of the appellant and Mr Thomson pursuant to their agreement and intention dishonestly to cause a loss to the Federal Commissioner. My reasons are as follows.
314 First, neither the appellant nor any of the other accused disputed at trial that the FIS was, in fact, fraudulent. It was not in contest that the documents relating to the FIS were, in fact, false and backdated. They had not been executed or signed in June 1999. Each of the appellant and Mr Thomson was involved in the preparation of the false and backdated documents. Also, to the knowledge of the appellant and Mr Thomson, those documents were used in the preparation of materially misleading and deceptive taxation returns for the 1999 taxation year that were lodged with the Federal Commissioner of Taxation by Mr Thomson's firm, Thomson Fisher & Co. Each of the appellant and Mr Thomson intended that the documents should be used in that manner, even though the appellant was not actually involved in the preparation or filing of the relevant taxation returns.
315 Secondly, at all material times the appellant had a reputation for having very considerable knowledge of and experience in taxation and accounting matters, including a reputation for giving advice about the manner in which the incidence of taxation could legitimately be minimised or avoided. The skill, experience and reputation of the appellant in taxation and accounting matters was demonstrated by the evidence of Mr Thomson, Mr Fletcher, Mr Irdi, Mr Fisher and Ms Saint, including evidence as to the appellant's employment at Lavan Solomon, his consultancy arrangement with Mr Irdi and his ongoing role in relation to taxation schemes. Further, the appellant's continuing involvement in the taxation affairs of Barminco, the Sayers Family Trust and the Bartlett Family Trust was revealed by the terms of Ms Grace's memorandum of 13 September 2002 to the appellant (exhibit 102: see [267] above), and the evidence of Mr Hewitt, Mr Cochrane, Mr Young and Mr Watson.
316 Thirdly, the formulation (in particular, the content) of the FIS, in the context of the complex business and financial affairs of Mr Bartlett and Mr Sayers and their associated entities, required some intellectual skill and sophistication and a detailed knowledge of taxation law and practice. There is no doubt that, at all material times, the appellant had the requisite skill, sophistication and knowledge. The evidence shows that the appellant's skill, sophistication and knowledge in relation to taxation schemes substantially exceeded any skill, sophistication and knowledge that Mr Thomson may have had. Also, at all material times, Mr Thomson was disorganised and dilatory, and had failed properly to attend to the work he was obliged to carry out for Mr Bartlett and Mr Sayers and their associated entities.
317 Fourthly, it was not disputed at trial that in late 1999 or early 2000 the appellant, through his acquaintance with Mr Thomson, was introduced to Mr Bartlett and Mr Sayers. It was not in contest that the appellant devised the Appointor Arrangement and that at a meeting he explained the features of the arrangement to Mr Bartlett and Mr Sayers. The effect of the Appointor Arrangement, upon implementation, was to reduce significantly the amount of taxation payable on the profits of BUT that were ultimately distributed to various beneficiaries of the Bartlett Family Trust and the Sayers Family Trust.
318 Fifthly, it was a term of the Appointor Arrangement, as implemented, that Timebase (as, in effect, the appellant's nominee) would receive a commission of $5 million in connection with the transaction. Also, it was a term of the Appointor Arrangement, as implemented, that the appellant would pay or cause to be paid $500,000 from this commission into a 'fighting fund' to be established for the purpose of defending any adverse action taken by the Federal Commissioner of Taxation in respect of the Appointor Arrangement.
319 Sixthly, it was not in dispute at trial that the discovery by Ms Grace, in the course of preparing Barminco's income tax return for the 1999 taxation year, that Barminco had, in fact, made a net profit of $7,084,170 in that year may cause a 'problem' with the Appointor Arrangement because of the 'pattern of distribution'. Certainly, the appellant believed that the net profit may cause a 'problem' with the arrangement.
320 Seventhly, it was not in dispute at trial that the effect of the FIS, upon implementation, was to eliminate the 'problem' with the Appointor Arrangement by reducing Barminco's net profit for the taxation year ended 30 June 1999 from $7,084,170 to nil.
321 Eighthly, the appellant had a significant interest (including the commission of $5 million payable to his associated entity, Timebase) in defending the efficacy of the Appointor Arrangement from any challenge by the Federal Commissioner of Taxation as a result of the unanticipated net profit derived by BUT in the 1999 taxation year.
322 Ninthly, Mr Thomson gave direct evidence at trial, which was admissible against the appellant, to the effect that the appellant was involved in the alleged conspiracy. The evidence given by Mr Thomson in relation to that issue also constituted an admission by him of his guilt. Mr Thomson did not merely give evidence as to his plea of guilty. His evidence overwhelmingly related to the merits of the Crown's case; in particular, evidence of the appellant's criminal conduct and his own criminal conduct.
323 Tenthly, on my review of Mr Thomson's evidence, his cross-examination by the appellant and counsel for the other accused did not relevantly and materially weaken or undermine Mr Thomson's evidence-in-chief to the effect that it was the appellant (and not Mr Thomson) who devised the FIS in August 2002 as a means of fraudulently reducing the declared income of the Bartlett Family Trust and the Sayers Family Trust for the 1999 taxation year and that the appellant had procured Mr Thomson to prepare false backdated minutes of meeting evidencing the issue in June 1999 of the special units in BUT.
324 Eleventhly, Ms Amaranti-Smith gave evidence, that was not relevantly and materially weakened or undermined in cross-examination, that she recognised the appellant's handwriting in the undated handwritten document entitled 'Special Units', being exhibit 12. The handwriting set out the proposal in relation to the allotment of the 79.9 million special units in BUT, purportedly during the 1999 taxation year. Ms Amaranti-Smith had been employed as the appellant's secretary from time to time over a period of about 19 years.
325 The absence of a date on exhibit 12 does not relevantly and materially weaken or undermine the probative force of the document or Ms Amaranti-Smith's evidence that the document was in the appellant's handwriting.
326 Exhibit 12 is consistent with Mr Hewitt's evidence as to the appellant's explanation on the whiteboard at the meeting attended by, relevantly, the appellant and Mr Hewitt. Mr Thomson gave evidence to similar effect, namely about an explanation given by the appellant, on a whiteboard, on a different occasion.
327 Further, the figures for interest and deductions in exhibit 12 correspond very closely with the contents of exhibits 95 and 96 and with the amounts returned as income in Barminco's returns for the 1999 and 2000 taxation years and the amounts received as distributions by Bremerton and Nebraska and claimed by them as allowable deductions.
328 I reject the appellant's contention at trial that it was reasonably possible that the undated exhibit 12 might have been a note which he had prepared for use at or as a result of the meeting on 11 December 2002, rather than at any meeting in September 2002 of the kind alleged by Mr Thomson, where the earlier issue of the units was explained. There was no evidence from either Mr Hewitt or Mr Watson to the effect that it was possible that exhibit 12 had been produced at the meeting on 11 December 2002.
329 Twelfthly, it is true that there was a conflict between the evidence of Mr Thomson and the evidence of his secretary, Ms Paternoster, as to whether the handwritten documents setting out the purported resolutions of unitholders of BUT at the meetings purportedly held on 14 and 16 June 1999 were in the appellant's handwriting (as Mr Thomson said) or in Mr Thomson's handwriting (as Ms Paternoster said). That was a matter for the jury to resolve, if it could, based on its assessment of the relevant witnesses and their evidence. It is not a matter that I am able to resolve by reference to the transcript. However, that issue, even if resolved in favour of the appellant, does not on my review and evaluation of the trial record as a whole and my weighing of the evidence, preclude my satisfaction beyond reasonable doubt as to the appellant's guilt. I note that Ms Paternoster gave evidence, in cross-examination by the appellant, that her understanding at the material time was that the amendments she made to the initial typewritten versions of the purported resolutions were based on the appellant's instructions to Mr Thomson.
330 Thirteenthly, it is appropriate, despite the trial judge's failure to give the direction referred to in ground 2 of the appeal, to accord some limited weight to the jury's verdict of guilty as an aspect of the trial record. Mr Thomson gave evidence at the trial that was consistent with a conspiracy, as alleged in the trial indictment, between, relevantly, the appellant and him. Mr Thomson was subjected to a searching cross-examination by the appellant and counsel for the other accused. His Honour instructed the jury that it should scrutinise and evaluate Mr Thomson's evidence closely, but if the jury was satisfied that his evidence was truthful or consistent with other evidence, or that certain parts of it were, then the jury was free to act on his evidence (ts 4002). Also, his Honour reminded the jury during his summing up of particular criticisms of Mr Thomson's evidence made by the appellant and counsel for the other accused. As I have mentioned in the course of dealing with ground 1 of the appeal, it is apparent from the different verdicts returned by the jury in relation to the appellant and the other accused that the jury carefully evaluated the evidence of Mr Thomson which inculpated, or tended to inculpate, each of the accused. Although the jury found the appellant guilty, it returned a verdict of not guilty in relation to Ms Grace and was unable to reach a verdict in the cases of Mr Bartlett and Mr Sayers.
331 Fourteenthly, although there was some reference at the trial to the fact that the charge to which Mr Thomson had pleaded guilty was similar to, if not identical with, the charge in the trial indictment, there was no particular focus on that matter at the trial. Also, it was not suggested, by the trial judge, counsel for the Crown, the appellant or counsel for any of the other accused, that Mr Thomson's plea of guilty had any necessary or other consequences for the appellant or any of the other accused.
332 On my examination of the trial record and after weighing the evidence, the only inference reasonably open is one of guilt against the appellant. There is no reasonable inference open, on the evidence as a whole, consistent with the appellant's innocence.
(a) the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence;
(b) the jury's advantage in having seen and heard the witnesses; and
(c) his Honour's error in failing to direct the jury to the effect that Mr Thomson's plea was not admissible against the appellant in proof of the fact that the appellant had been a party to the alleged conspiracy,
I do not have a reasonable doubt as to the appellant's guilt on the count pleaded in the trial indictment or as to the correctness of his conviction on that count.
334 I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has in fact occurred. First, as I have mentioned, I am persuaded to the criminal standard of proof, on my examination of the trial record and after weighing the evidence, as to the appellant's guilt on the charge in the trial indictment. The jury properly rejected his defence. Secondly, I am satisfied beyond reasonable doubt that nothing at or in the conduct of the trial (including the trial judge's failure to direct the jury in the manner to which I have referred in the course of considering ground 2) precludes this court from deciding that no substantial miscarriage of justice has in fact occurred. His Honour's error was not, on the facts and in the circumstances of the present case, of a kind that precludes 'the proviso' from being engaged.
335 Leave to appeal should be refused on ground 1 and granted on ground 2. However, the appeal must be dismissed.
(2012) 245 CLR 632
(1989) 168 CLR 79
(2000) 199 CLR 620
(1992) 177 CLR 292
(1984) 153 CLR 521
(1988) 165 CLR 314
(2003) 7 VR 442
(2013) 88 ALJR 215
(2005) 224 CLR 300
(1981) 147 CLR 512
(2007) 17 VR 100
(1994) 12 WAR 133
(2000) 206 CLR 161
(1985) 39 SASR 440
(2008) 100 SASR 216
(1986) 161 CLR 315
(2012) 246 CLR 92
(2013) 38 VR 659
(2007) 35 WAR 344
(1998) 197 CLR 250
(2006) 230 CLR 234