IN THE FULL COURT OF THE COURT OF CRIMINAL APPEAL OF TASMANIA

Criminal Law and Practice - Lengthy fraud trial - Whether refusal of change of venue due to pre-trial publicity caused miscarriage - Whether failure to discharge jury after attempts by unknown person(s) to suborn jury caused miscarriage. R v Zampaglione (1982) 6 A Crim R 287, R v Glennon [1992] HCA 16; (1992) 173 CLR 592, referred to.

Joinder of counts - Whether failure to sever stealing counts from Companies Code charges of improper use of officer's position caused miscarriage. R v Smart [1983] VicRp 22; (1983) VR 265, distinguished.

Evidence - Admission of part of records of casino in proof of extent of appellant's gambling habits - Reliability of records partially incomplete and containing some admitted errors. Evidence Act, 1910, s40A. Albrighton v The Royal Prince Alfred Hospital (1980) 2 NSWLR 542, referred to.

No case to answer submissions - Whether dominance of accused over affairs of company defrauded negatived ingredient that funds taken without its consent. R v Roffel [1985] VicRp 51; (1985) VR 511, distinguished.

HOBART, 23-25 August, 27-29 October 1993, 1 March 1994

Solicitors for appellant: Butler McIntyre and Butler

Solicitors for respondent: Director of Public Prosecutions

COX, UNDERWOOD AND WRIGHT JJ The appellant was presented for trial in Hobart upon an indictment containing 168 counts of stealing contrary to the Criminal Code and 237 counts of improper use of his position as a corporate officer contrary to the Companies (Tasmania) Code, s229(4). He was convicted on 165 counts of stealing and on 71 counts alleging the Companies Code offences. It was a very long trial commencing with his arraignment on 3 August 1992 and the delivery of verdicts on 11 February 1993.

2. Ground 1 of the notice of appeal is as follows:

"The learned Trial Judge erred in law in refusing an

Application to transfer the trial venue from Hobart to

Launceston."

3. Prior to arraignment an application was made on 27 April 1992 to the judge who eventually presided at the trial for a change of venue to either Launceston or Burnie. The crimes charged arose out of the appellant's conduct as the managing director of Paragon 2000 Pty Ltd, a company engaged in the assembly and sale of ergonomic chairs from premises at Moonah. The Crown case was that between April 1987 and October 1988 the appellant had stolen more than $1,000,000 from the company and from two investors who were induced to part with money on the pretext that it was a loan to the company, and that he had mis-used his position as a director by borrowing, without authority, over $200,000 from the company. The money was alleged to have been stolen or misused to support a lavish lifestyle and extensive gambling activities.

4. The company sold its assets to a subsidiary of a company named Tas Equity Ltd in December 1988 and the subsidiary thereafter carried on the business of assembling and selling ergonomic chairs under the name Paragon Industries Pty Ltd until its operation ceased in March 1990. Paragon 2000 Pty Ltd changed its name to Nogarap Pty Ltd. The appellant was never a director of Paragon Industries Pty Ltd but was employed by it after the sale of the business until about May 1989.

5. In March 1990 Paragon Industries Pty Ltd closed the Moonah factory formerly run by Paragon 2000 Pty Ltd and sacked the workforce on very short notice. Some publicity surrounded this incident and workers conducted a "sit in" to protest their dismissal and the alleged inadequacy of their redundancy payments. There was also publicity to the effect that the company had failed to forward superannuation fund contributions and the like. This publicity occurred on 8 and 9 March 1990 in the Hobart Mercury and on 10 March that paper contained a report headed "Paragon Director to Face 150 Stealing Charges". The report claimed that "a former director of Paragon Industries at Moonah faces charges of stealing $220,000 from the recently-collapsed furniture manufacturer". He was identified as the appellant then living in Melbourne and the report concluded by saying that the "$220,000 allegedly was stolen during the first seven months of 1988 when Durovic was a director". A report to the same effect appeared in the Launceston Examiner of the same day, but a correction was published in that paper on 13 March 1990 to the following effect:

"THEFT DENIED

It was incorrectly reported in The Examiner on Saturday,

March 10, that Mr George Durovic, of Melbourne, is to face

charges in connection to (sic) failed Hobart furniture

manufacturer Paragon Industries Pty Ltd.

Mr Durovic is to deny charges of stealing $220,000 from

Nogarap Pty Ltd (formerly Paragon 2000). Nogarap Pty Ltd

and Paragon Industries are entirely separate companies."

6. The Mercury did not publish a similar correction. Reports of the collapse of Paragon Industries Pty Ltd and of the charging of the appellant also appeared in television bulletins at this time.

7. It was claimed that by reason of the bad publicity generated by these reports, or at least by those that went uncorrected, there existed a real likelihood that the appellant would not receive a fair trial unless the venue were changed from Hobart to Launceston. Before us it was claimed that his Honour, having failed to accede to that request and the trial having proceeded in Hobart, there was a miscarriage of justice.

8. The Criminal Code does not contain an express provision empowering a judge to change the venue for trial, although the existence of that power is acknowledged by s307. In Nicholas v The Queen (63/1990) Underwood J referred to some of the authorities and said at 2-3:

"The applicant carries the onus of making out sufficient

grounds for the order sought. See R v Phillips, Chambers J

79/70. It is 'no doubt a heavy one', per Holmes J in R v

Cattell (1968) NSWR 156 at p159. See also R v Dorrington

(1969) 1 NSWR 381; Lemon v Attorney-General (1932) 50

WN(NSW)19.

9. In R v L [1989] NTSC 25; (1989) 43 A Crim R 51, Kearney J surveyed the relevant authorities and said at p54 :-

'This brief survey of some of the cases on change of venue

illustrates that only when good cause is shown should the

basic approach that trials be held where the crime is

alleged to have been committed, not be followed.'"

10. In R v Glennon [1992] HCA 16; (1992) 173 CLR 592 the High Court was concerned with the possibility of ineradicable prejudice from wide and sensational publicity given to an earlier conviction for child molestation by a priest suspended from the active ministry upon his trial for further counts of indecency against young people. Mason CJ and Toohey J in their joint judgment said, at 605-606:

"... a court of criminal appeal, before it will set aside a

conviction on the ground of a miscarriage of justice,

requires to be satisfied that there is a serious risk that

the pre-trial publicity has deprived the accused of a fair

trial. It will determine that question in the light of the

evidence as it stands at the time of the trial and in the

light of the way in which the trial was conducted, including

the steps taken by the trial judge with a view to ensuring a

fair trial."

11. In the present case the reports had made it clear that the appellant was alleged to have stolen money from the company in a period which concluded some 20 months before the publicised collapse of Paragon Industries Pty Ltd, that he was no longer a director of it and by that stage was a resident of Melbourne. The trial did not commence for a further 27 months. It was no part of the Crown case that the appellant had contributed to the collapse of Paragon Industries Pty Ltd and in the course of the lengthy trial it was made clear that the appellant's dealings had been with Paragon 2000 Pty Ltd, that he had been an officer of that company and that the business had been sold long before the Moonah factory had closed. If any member of the jury had any recollection of the publicity concerning the collapse in March 1990 and of the erroneous linking of the appellant with the company which collapsed, we find it inconceivable that such a juror would have been influenced in the slightest by it. Such recollection, if it existed at all at the commencement of the trial, would almost certainly have been overtaken by the volume of evidence which showed the true relationship. In any event, unlike the situation in R v Glennon (supra) where highly prejudicial and inadmissible material not shown to be untrue had been given wide notoriety, or that in R v Pepperill (1981) 54 FLR 327 where inflammatory editorial comment on the accused had been made prior to trial, these reports at worst merely hinted at a possible connection between the collapse of the company and some wrong doing by the appellant.

12. The balance of convenience undoubtedly suggested that Hobart was the proper venue, as the Crown called over 50 witnesses from the Hobart area including 5 practising accountants, a senior practising solicitor, senior bankers and a number of small business proprietors. Unlike the case of R v Cattell (supra) where the issue of a fraudulent prospectus by a company which carried out the majority of its activities in Newcastle may well have affected the families or acquaintances of potential jurors drawn from that area and where the venue was accordingly changed to Sydney, there were not absent from the case:

"... those considerations which are usually regarded as

requiring or making it desirable that a trial for crime

should take place in a particular locality, notwithstanding

that that course may involve certain disadvantages to the

accused person such as those flowing from local discussion

of the crime or local publicity given to the committal

proceedings, which disadvantages, it is thought, are met by

a just expectation that the jury will perform their duty in

accordance with their oaths." (Per Sugerman JA at 157).

13. In our view there is no substance in the complaint that his Honour erred in refusing the change of venue or that his decision to do so has resulted in a miscarriage of justice.

refusing an Application to sever the indictment.

3 The learned Trial Judge erred in law in holding that

counts pursuant to S229(4) of the Companies (Tasmania) Code

1981, were available as alternative charges to counts under

S234 of the Criminal Code.

4 The learned Trial Judge erred in law in failing to grant a

permanent stay of the indictment on the grounds inter alia

that by virtue of the number of counts charged it was

oppressive, a violation of civil rights, a violation of the

due process of the law, and a denial of natural justice."

15. All the crimes were alleged to have been committed between April 1987 and October 1988. As already noted, the appellant was the managing director of Paragon 2000 Pty Ltd, a company that assembled and sold ergonomic chairs at premises in Moonah, Tasmania. In general terms, it was the Crown case that over the period covered by the indictment, the appellant stole in excess of $1,000,000 from Paragon 2000 Pty Ltd. In all but three of the counts of stealing, the Crown case against the appellant was that he dishonestly cashed, or credited to an account to his, or his wife's use, approximately 165 company cheques each made payable to a creditor of the company. In each of the three excepted counts of stealing, the Crown case was that the appellant dishonestly stole money obtained from persons whom he persuaded to make a loan to Paragon 2000 Pty Ltd for the purpose of its lawful business.

16. Each count of stealing from the company, was matched by a count of improper use of the appellant's position as a corporate officer contrary to the Companies (Tasmania) Code, s229(4). Although not pleaded in the indictment as alternatives, that was the basis upon which the case was conducted from the beginning. In addition to the alternative counts, there were a further 71 counts of improper use of his position as a corporate officer, contrary to the Companies (Tasmania) Code, s229(4). The Crown case on each of these counts was that the appellant improperly utilised a director's loan facility he had with the company.

17. Again in general terms, the defence case with respect to all the Companies (Tasmania) Code counts and all the counts of stealing from the company, was that the monies were used by the appellant to pay creditors of the company, often in cash, and to pay building expenses incurred in the construction of company premises at Gormanston Road, Moonah. A part of the defence case was that the operations of the company during the relevant period generated insufficient funds for the appellant to have committed the crimes charged.

18. Before the trial began, an application was made on behalf of the appellant for an order severing the stealing counts from the Companies (Tasmania) Code counts. On this application, Counsel for the appellant drew no distinction between the Companies (Tasmania) Code counts that were alternatives to stealing counts, and those that were not. Counsel expressly put the appellant's argument on the basis that if all the Companies (Tasmania) Code counts were not severed from the indictment, it should be left as drawn. The learned trial judge refused the application (Slicer J B32/1992). In refusing the application, the learned trial judge reserved leave to the appellant to make a further application during the course of the trial for severance with respect to the Companies (Tasmania) Code counts that were not alternatives to counts of stealing. No such further application was made.

19. Grounds 2, 3 and 4 allege in substance that the learned trial judge erred in refusing to sever the indictment in accordance with the application made on behalf of the appellant, and in result there was a miscarriage of justice. Counsel for the appellant conceded that the counts were properly joined on the indictment in accordance with the Code, s311(2) which provides:

"Except as provided in subsection (3), charges of more than

one crime may be joined in the same indictment, if those

charges arise substantially out of the same facts or closely

related facts, or are, or form part of, a series of crimes

of the same or a similar character. In any other case an

indictment shall charge one crime only."

20. The appellant's complaint on grounds 2, 3 and 4 is that parts of the evidence were admissible only on the Companies (Tasmania) Code counts and the nature of that evidence was such that its admission created a risk of impermissible prejudice on the trials of the stealing counts so high that the end result was a miscarriage of justice.

21. It is clearly established that if there is to be evidence, admissible on the trial of some counts but inadmissible on the trial of others, the indictment should be severed if there is a risk of impermissible prejudice to the accused in the conduct of a single trial on all the counts. In Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 Brennan J said at 541-542:

"When two or more counts constituting a series of offences

of a similar character are joined in the same information, a

real risk of prejudice to an accused person may arise from

the adverse effect which evidence of his implication in one

of the offences charged in the indictment is likely to have

upon the jury's mind in deciding whether he is guilty of

another of those offences. Where that evidence is not

admissible towards proof of his guilt of the other offence,

some step must be taken to protect the accused person

against the risk of impermissible prejudice. Sometimes a

direction to the jury is sufficient to guard against such a

risk; sometimes it is not. Where a direction to the jury is

not sufficient to guard against such a risk, an application

for separate trials should generally be granted."

See also De Jesus v The Queen [1986] HCA 65; (1986) 68 ALR 1; Hoch v The

Queen [1988] HCA 50; (1988) 165 CLR 292 at 298 and, for an application of

this principle to a case involving dishonesty, Armstrong v

The Queen (1990) 48 A Crim R 358.

22. Counsel for the appellant identified the prejudicial evidence that he claimed was inadmissible on the trials of the counts of stealing, as part of the evidence given by three witnesses, Messrs Ludeke, Curtain and Gourlay. Mr Ludeke was an accountant employed by Paragon 2000 Pty Ltd. He gave evidence about the precarious financial position of Paragon 2000 Pty Ltd in general terms and told the jury that the cash flow situation deteriorated quite quickly. He gave evidence of the company exceeding its overdraft limits and attempts that were made to borrow more money from the bank. Mr Ludeke said that a lot of creditors could not be paid, and that sometimes the bank threatened not to pay company cheques. Mr Ludeke also gave evidence about Paragon Compute Pty Ltd, a company that manufactured office desks and shelving. This company was formed about the time the Crown alleged that the crime referred to in count 1 was committed. It took over an existing furniture manufacturing business. The appellant, a Mr Caccavo (also a director of Paragon 2000 Pty Ltd) and another, were the directors of Paragon Compute Pty Ltd. The idea was that this company would complement the business of Paragon 2000 Pty Ltd. In substance it too, was managed by the appellant. Mr Ludeke said that at the direction of the appellant, Paragon 2000 Pty Ltd started to pay creditors of Paragon Compute Pty Ltd. He also said that sometimes, money would be transferred at the request of the appellant from Paragon 2000 Pty Ltd to Paragon Compute Pty Ltd other than for the purpose of paying creditors but he was not aware of any transfers of money in the opposite direction. Mr Ludeke also gave evidence with respect to a particular creditor of Paragon 2000 Pty Ltd. He said that this creditor's debt gradually grew to over $33,000 and that the creditor's manager, Mr Clarke was frequently on the telephone asking for money, requests that the appellant refused more often than not.

23. Mr Curtain was a manager of Paragon 2000 Pty Ltd's bank. He gave general evidence about the company's borrowings. He said that it was heavily in debt to the bank and that the appellant frequently sought extensions to the borrowing facilities. He said that at one stage, the overdraft limit was $200,000 and that the appellant requested an extension. He said that it was only upon one of the other directors giving the bank security that the bank agreed to increase the bill facility the company had from $150,000 to $350,000 leaving the overdraft at $200,000. Mr Curtain said that notwithstanding those arrangements, from time to time the overdraft limit was exceeded.

24. Mr Gourlay was another bank manager. He was employed by the Trust Bank and at the relevant time was at the Moonah Branch of the bank. In that position he had dealings with the account maintained at the bank by Paragon Compute Pty Ltd. He said that most of his dealings with respect to this account were with the appellant. He gave evidence about Paragon Compute Pty Ltd having an overdraft of $100,000 and substantially exceeding it.

25. Counsel for the appellant relied upon R v Smart [1983] VicRp 22; (1983) VR 265. In that case the indictment contained 63 counts.

Misappropriation 24

Theft 20

Fraudulent Conversion 4

Obtaining Execution of a Valuable Security by Deception 2

Obtaining a Financial Advantage by Deception 5

Obtaining Property by Deception 1

Fraudulently Inducing Persons to Invest Money 7

Total 63

26. Of those 63 counts, four were alternatives. The learned trial judge refused to sever any of the counts on the indictment. The trial lasted 73 days. The Full Court of Victoria held that the failure to sever the counts on the indictment resulted in a miscarriage of justice. The basis of the decision was that the evidence and the issues in the case were so complex the court could not be satisfied that "the jury must only have had regard to evidence properly admissible in respect of each count in reaching their verdict on that count" (289).

27. The degree of complexity of the facts in Smart's case bears no resemblance to the degree of complexity in this case, and the application of the principles in Smart do not assist the appellant. Although the indictment in the present case contained a large number of counts and the trial took a long time, the Crown case was quite straight forward as has been described. Apart from an alternative charge of dishonestly obtaining a financial advantage on three counts, the whole indictment put to the jury concerned two different crimes only, the directions for which were not complex. As encapsulated during submissions on the appeal, counsel for the appellant put his argument on grounds 2, 3 and 4 on the basis that evidence of the general state of the accounts of Paragon 2000 Pty Ltd and, to a lesser extent those of Paragon Compute Pty Ltd was inadmissible on the stealing counts, and so prejudicial to the trial of those counts that a failure to sever the indictment resulted in a miscarriage of justice. Much of the evidence claimed to be inadmissible and prejudicial on the trials of the stealing counts was in fact admissible, at the least as part of the matrix of facts in respect of which the crimes of stealing were alleged to have been committed. Most, if not all of it, was made relevant by the conduct of the defence. The evidence of the financial affairs of Paragon Compute Pty Ltd was admissible on the Crown case to establish that the appellant transferred monies to hide defalcations from Paragon 2000 Pty Ltd. Counsel for the appellant made no complaint about the directions given the jury with respect to which evidence was relevant upon a consideration of each count, nor did he point to any part of the summing up to demonstrate that this was a case where "a direction to the jury (was) not sufficient to guard against (the) ... risk" of "impermissible prejudice," per Sutton at 542. The learned trial judge gave the jury this written direction:

"Each count contained in the indictment constitutes a

separate crime. Normally evidence of the commission of

other crimes (the other counts contained in the indictment)

is not admissible on the trial of the particular count. In

the circumstances of this case use may be made of the

evidence relating to other counts (with the exception of

counts 376A and B, 377 and 378 (stealing from persons other

than the company))

- if the jury considers that there is such a striking

similarity between the facts alleged to constitute another

or other crimes and the count being considered that

- either alone or

- in combination with other factors

- they indicate beyond reasonable doubt that the crime was

committed."

28. In our view grounds 2, 3 and 4 have not been made out.

29. "5 The learned Trial Judge erred in law and fact by failing

to take effective steps or any reasonable steps to ensure

the jury was not unlawfully contacted.

6 The learned Trial Judge erred in law and fact in failing

to discharge the jury having regard to the fact that an

unknown person or persons unlawfully and maliciously

attempted communication with members of the jury in an

attempt to corrupt and influence their deliberations.

7 The learned Trial Judge erred in law and fact in

permitting the trial to continue, after several juror's

spouses received an unlawful and corrupt communication, by

accepting an undertaking from those spouses that they would

refrain from divulging the receipt of and the contents of

the unlawful and corrupt communication."

30. These grounds may be considered together as they arise out of a single incident. Ground 5 was, however, withdrawn and needs no separate consideration.

31. During the morning of 10 September 1992 after the trial had been in progress for nearly six weeks, counsel for the appellant received a letter addressed to him care of the Supreme Court. It contained a photostat copy of a document purporting to be a printout of a list of previous convictions of the appellant and had typed thereon a gratuitous comment. During the course of the morning the spouse of one of the jurors contacted the court and advised of the receipt of a similar document which was then delivered to the court. The jury was not permitted to separate whilst inquiries were conducted. During the course of the day seven similar envelopes, all addressed to jurors, were recovered unopened. A further envelope had been received and opened by the spouse of another juror. No envelopes were recovered from five of the addresses. The jury was advised that impermissible material had been forwarded to their addresses but that such did not constitute a threat to the safety of them or their families. An examination was conducted of the two spouses as to whether they believed that they could maintain confidentiality with respect to the contents of the correspondence. The learned trial judge recorded that he was impressed by their understanding of the issue involved, their frankness and sense of propriety and that he accepted without reservation their assurance that they would not find it difficult to maintain confidentiality. The jurors whose spouses had been examined by the learned trial judge were informed by him that it was their respective wives who were to be examined and were told that if either such juror felt that to continue with the trial knowing that his wife had information she was not permitted to reveal that would impose a strain on their relationship, his Honour would be prepared to discharge them. Neither juror sought to be discharged.

32. On the morning of 11 September a further envelope (unopened) was handed to the Sheriff by one of the jurors. On 15 and 17 September the foreman of the jury advised the court that no juror had received any additional material. On 18 September a juror delivered to the Sheriff a further envelope identical to the ones previously recovered. That juror had changed his address and it had been redirected. The envelope delivered to that juror contained a number of markings and stamps, including a "return to sender" sticker addressed to Tasmania Police, Post Office Box 308, Hobart. The learned trial judge conducted a further inquiry and determined that at the "Dead Letter Office" an official had opened the envelope and seeing the photostat record of convictions headed "Tasmania Police" had concluded that the Tasmanian Police Force had been the sender. How the envelope, if returned to Tasmania Police, came to be redirected to the new address of the juror was not the subject of a finding; but his Honour did find that upon delivery, that juror had not opened it but had delivered it to the Sheriff.

33. The learned trial judge was satisfied that none of the jurors had seen the contents of the envelope. The record revealed that the appellant had been convicted in New South Wales in 1973 on two charges of robbery and had been sentenced to ten years' imprisonment with a non-parole period of three years, while a year later he had been convicted there of two charges of false pretences and one of attempted false pretence and had received concurrent sentences of two years' imprisonment. There were also six charges of speeding in 1983 and 1984 and one of driving without a licence in 1985, all the subject of fines. His Honour found that the jury were aware that the households of ten of their number had received material which had been improperly sent to them and that if it were read, it could prejudice the continuation of the trial; that the spouses of two of the jurors had seen the offending material; and that assuming the tenth juror had communicated the "return to sender" sticker to the others, the sender was someone within the Tasmanian Police Force. He said that taking the view most favourable to the appellant, it would be reasonable to accept that the jury believed that the contents were adverse to the defence comprising material critical of him or favourable to a Crown witness and that it would be reasonable to assume that they believed that their reception of the contents could affect the continuation of the trial.

34. On 21 September the appellant's counsel submitted that the jury should, in the circumstances, be discharged. There was considerable discussion as to whether, in the light of the appellant's conduct of the case thus far, he had put character in issue so that, as the Crown argued, no harm would be done by the premature revelation of his antecedents to the jury. His Honour declined to discharge the jury, but did not find it necessary to determine whether character had by then been put in issue. Thereafter (and after time for consideration) counsel for the appellant announced that in view of the defence's perception that the jury would be likely to have concluded that the material in the envelope sent to them contained information on his antecedents, he intended to conduct the case on the basis that character was in issue and that at the first available opportunity the appellant's antecedents would be made known to them.

35. On 23 September 1992 the learned trial judge addressed the jury and reminded them of their oaths to try the issues in accordance with the evidence and to maintain confidentiality concerning the trial. He also told them of the provision of the Code, s367 enabling him to discharge a juror who was not indifferent as between the Crown and the accused person. In part he said:

"I tell you those things because if at any time any of you

believe in your own conscience that you have received

information - you may have been approached or for whatever

process (sic) - that you are unable to properly fulfil your

oath you must let me know and if that occurs you should not

disclose to another juror and the essence of what I am

saying is that if there is an approach made or information

or something which occurs which would cause you within your

own conscience to have doubt about whether you could

properly continue as a juror - if that occurs you should

come to court and do not go into the jury room with your

colleagues but go to the jury assembly room that you know so

well by now and advise the Sheriff's officer who will advise

me and I can deal with the matter there and then."

"In relation to the material forwarded to some of your

households, I can tell you that I have seen the contents and

they comprise nothing which would assist you in your

deliberations at this stage. The document purports -

purports means it says on its face but it may or may not be

but it purports to be a copy of some prior record of the

accused that is all. I have had discussions with counsel

and the accused has requested that I make known to you that

fact. This is done despite the, how should I put it,

knowledge of any such matters of a past of a citizen is not

permitted in a trial unless and until certain circumstances

occur. So the accused has requested that I make known to

you that fact. Now this is done to avoid any speculation on

your part and to avoid your being distracted from you task

which is to determine the case on the basis of what you have

seen and heard in this Court. Whether a citizen has a past

or not is not the basis on which the criminal justice system

determines the guilt or innocence of any citizen. So that

is the end of it. You may not speculate further. You are

to decide the case on the basis of the evidence presented in

this Court and no where else."

37. With a view to neutralising the effect of the "return to sender" sticker purporting to identify the Tasmania Police as the sender of the material, his Honour observed that the sticker had been placed on the envelope "by an employee of Australia Post who did so as a result of a matter of procedure in an attempt to ascertain the identity of the sender of the piece of mail, that is all". Thereafter the trial continued and at one stage some of the antecedents of the appellant were made known to the jury, but the convictions for robbery were not revealed to them.

38. In Maric v The Queen (1978) 20 ALR 513 Gibbs J (with whose reasons for judgment both Mason and Jacobs JJ concurred) held at 520 that where an accused has been convicted after an unsuccessful application for discharge, the appeal is against the conviction not the refusal to discharge; and the issue for determination on the appeal is similar to the inquiry whether a substantial miscarriage of justice occurred. The learned trial judge found that the material was not in fact communicated to any member of the jury, although as has been noted, he did, at the express request of the defence, tell them without elaboration that it purported to be a copy of some prior record of the appellant. The fact that an attempt was made by an unknown person to convey prejudicial and inadmissible material to the jury cannot of itself be sufficient to justify a conclusion that a miscarriage of justice has occurred. In R v Boland [1974] VicRp 100; (1974) VR 849 a juror disclosed in the course of the trial that she had the previous evening received an anonymous telephone call from a man who claimed to be speaking on behalf of the police and who told her she must find the applicant "guilty" and that if she did she would receive $5,000. Adam J, delivering the judgment of the Full Court, said at 866:

"Mr Beach suggested that in this State juries are invariably

discharged if an approach of this nature is made to a juror.

To our knowledge there is no such practice. Indeed, to have

adopted any such practice would, no doubt, have encouraged

attempts by or on behalf of accused persons to abort

criminal trials."

39. A similar problem arose in R v Zampaglione (1982) 6 A Crim R 287 where an anonymous caller had threatened a juror and sought to compel his vote in favour of an acquittal. In their joint judgment, Young CJ and Murray J said at 294 in respect of the ground that the trial judge erred in failing to discharge the jury after this activity had been disclosed to the court:

"In our opinion it must be summarily rejected. There is not

the slightest basis for suggesting that the calls had any

effect on the juror concerned or upon other members of the

jury when they were informed of what had occurred. On the

contrary, the juror concerned demonstrated by his conduct

that he treated the calls as they deserved to be treated.

The administration of justice would come to a standstill if

this Court were to hold that a criminal trial could be

aborted by the simple device of making an anonymous

telephone call to a member of the jury."

40. It was submitted that the undertakings of the two spouses who were aware of the contents of the envelopes delivered to their households not to disclose them to their husbands were insufficient to ensure that this would not occur and that as a matter of objective fact there was a real likelihood that the information would be passed on to them. This flies in the face of his Honour's assessment of the two women concerned and of the members of the jury itself whom he described in later giving his reasons for refusing the application as having impressed as a conscientious group of citizens committed to the performance of a public duty. He said:

"The outcome of discussions with the jury concerning

possible hardship caused by the length of the trial is

illustrious of this conclusion. On many occasions the jury

assembled as a group before the time of commencement of the

hearing and retired collectively to the jury room after it

was sworn out. The statement of the foreman concerning the

wish of the jury to continue was a statement of honesty and

respect for the oath. I was satisfied that no juror was

aware of the nature of the material nor would any juror seek

to become so aware during the trial."

41. In our opinion there is no reason to suppose that this jury was the least bit influenced by the events precipitated by the attempted communication or that any miscarriage of justice has occurred as a result of them. The learned trial judge took all reasonable and practicable precautions to avoid detriment being caused to the appellant thereby and the discharge of the jury would not, of course, have prevented whoever was responsible from repeating the exercise had a new jury been empanelled. In R v Glennon (supra), Brennan J said at 615:

"If the courts were not able to place reliance on the

integrity and sense of duty of jurors, not only would

notorious criminals or heinous crimes be beyond the reach of

criminal justice but there would have to be a change in

venue for many trials now held in circuit cities or towns

where knowledge of the crime and of the alleged criminal

easily acquires a wide currency outside the courtroom. Our

system of protecting jurors from external influences may not

be perfect, but a trial conducted with all the safeguards

that the court can provide is a trial according to law and

there is no miscarriage of justice in a conviction after

such a trial."

42. In our view these grounds have not been made out.

43. "8 The learned Trial Judge erred in law and fact

in failing to discharge the jury having regard to the fact

that an unknown person or persons unlawfully and maliciously

communicated, with various degrees of success, to members of

the jury in an attempt to corrupt and influence their

deliberations.

9 The learned Trial Judge erred in law and fact by failing

to discharge all jurors after one juror, (subsequently

discharged), assembled and remained with the other jurors

after receiving and reading the contents of an unlawful and

corrupt communication.

10 The learned Trial Judge erred in law by making enquiries

from jurors, in isolation, as to the contents of their

discussions with other jurors within the Jury Room."

44. These grounds raise a similar problem due to a further attempt by an unknown person to communicate through the post with members of the jury. Ground 10 was withdrawn.

45. On 21 October 1992 letters postmarked Launceston were posted some time prior to 6.00pm. The jury had sat on Thursday 22 October (Show day) in order to have the benefit of a long week-end commencing Friday. The timing of the posting was such that the receipt of the letters was likely to be on the day members of the jury were at home. His Honour found that such was either coincidental or a result of particular knowledge of the progress of the trial. On the morning of Friday 23 October a person who occupied the same household as one of the jurors contacted the Sheriff's officer and advised the receipt of the improper material. Arrangements were immediately made for the collection of envelopes addressed to jurors and for each juror to be alerted to the possibility that his or her mail may contain similar material. During the course of the day a number of jurors attended the court delivering envelopes delivered to their households. On Monday 26 October it was ascertained that six jurors had returned to the court envelopes unopened, two had received no improper communication, three had received the communication and had read nothing or only the first line of the contents and one juror had read the communication. The juror who had read the communication had immediately forwarded the same to the court with an accompanying letter in which such juror indicated a lack of effect of the communication and stated that there was no consequent loss of impartiality. The offending material was a typed single sheet of paper to the following effect:

"Dear Jury Person,

I wanted you to know what kind of person

George Jurovic is.

He has a criminal record

He is a liar and a cheat

He is a member of the Communist party of

Yugoslavia

He has criminal friends

and drug connections

He hurts people

He owes good people lots of money

He must be convicted

Tasmania is relying on you

CONCERNED TASMANIAN"

46. Following an examination of four jurors and the co-occupant with a juror of the same household, the learned trial judge was satisfied that only one juror had read the above letter and that there existed no likelihood that there would be any communication of its contents to the jury. From what he described as an abundance of caution, his Honour discharged the juror who had seen the contents of the letter but who had regarded it merely as the work of a "crank". There remained, however, a reserve juror empanelled pursuant to the Jury Act 1899, s39 so that the verdicts in due course were delivered by a full jury of 12. Applying the same principles to the circumstances set out in these grounds, it is our opinion that there is no possibility of a miscarriage of justice having occurred and that his Honour in no way erred in refusing a further application by the appellant for the discharge of the jury.

47. "The learned trial judge erred in law in permitting the

admission of 'Casino documentary records', into evidence."

48. During the course of the trial, the Crown sought to adduce evidence of the appellant's gambling activities at both the Hobart and Launceston casinos during 1987 and 1988. Oral evidence was given by both Mr Steven Ray Dakin, then employed as manager at the Launceston casino and Mr Louis Jaeger, who was employed as manager of the Hobart casino. Both gentlemen were also asked to produce documentary records of the two casinos in which entries had been made indicating the appellant's attendance on numerous occasions and amounts won or lost by him on such occasions. In summary, the evidence of Mr Dakin was that between May 1988 and August 1988 the appellant engaged in numerous gambling transactions at the Launceston casino on various dates during that period which resulted in a nett loss to the appellant of approximately $63,000. Mr Jaeger's evidence was to the effect that between March 1987 and December 1988, the appellant engaged in numerous gambling transactions at the Hobart casino on at least 276 different days during that period and that the records compiled in respect of his attendances on those occasions showed that he had sustained a nett total loss of approximately $390,000.

49. The principal documentary material from each casino consisted of:

(a) Table Information Sheets; and

(b) Win/Loss Books.

50. In addition, in respect of the Hobart casino, the Crown sought to introduce into evidence a summary of the Win/Loss Books and a "special tours" list, which is a schedule containing details of the gambling activities of selected customers who have been accorded special privileges by the casino management from time to time. The Crown sought to tender these documents on the basis that they were business records of the respective casinos pursuant to the Evidence Act, 1910, s40A. The Crown claimed that such material was relevant on three alternative bases. Firstly, that it was capable of showing that the appellant had a motive for committing the crimes alleged in the indictment, secondly, that he actually committed those crimes and thirdly, to show the ultimate destination of moneys which the appellant obtained as a result of the financial transactions particularised in the indictment.

51. The appellant's objection to the reception of this material into evidence was based upon the proposition that the documentary records contained errors and were incomplete and were therefore not "trustworthy" as required by the Evidence Act, s40A(1)(b). Alternatively it was submitted that as a matter of discretion the learned trial judge should have excluded the documents from evidence because they were inaccurate and incomplete and therefore likely to be prejudicial and unfair to the appellant, thus giving rise to a miscarriage of justice. It was not submitted that the various documents were not business records within the meaning of the Evidence Act s40A, nor was it argued that they did not fall within s40A(1)(a).

52. So far as we are aware, the concept of "trustworthiness" embodied in s40A(1)(b) has not been the subject of prior judicial pronouncement. In our opinion, having regard to the context in which it appears in the section, the word has a dual connotation. In the first place the writing in question must come from a source which obviates any reasonable suspicion that the document may have been prepared for the ulterior purpose of assisting the case for the party on whose behalf the document is tendered. Secondly, the nature and source of the information recorded must provide a basis for positively inferring that the recorded material is reasonably reliable and accurate.

53. Records may fail this secondary aspect of the threshold test if it is apparent that they were compiled a long time after the relevant event or the recording procedure is so devoid of system or consistency as to create an inevitable lack of confidence in what is recorded. It should be noted however, that s40A does not apply only to a continuous or running record. Sometimes a litigant may wish to tender only part of such a record. In such a case the test must then be applied to the particular document or documents which he seeks to put in evidence. Such material does not necessarily fail this threshold test simply because other comparable documents, whether forming part of a series or a sequence or not, are unavailable. In the present case each Table Information Sheet and each Win/Loss entry was capable of being admitted as a separate record of each event which it purported to record. In addition to recording details of the appellant's dealings, these documents recorded many other irrelevant facts and matters but no objection was based on this consideration.

54. It is plain that the documents were tendered collectively and were thereafter referred to collectively but this convenient and practical method of dealing with the material should not be allowed to obscure the fact that each sheet, indeed up to a point, each entry on each sheet, had effectively been considered by the learned trial judge to see if it fell within s40A(1).

55. The appellant is asking this Court to consider "untrustworthiness" principally from the perspective of the absence of similar entries or records relating to the appellant which may be assumed to exist in respect of other dates and occasions when he was present at the casino. It seems to us however that the fact that such other records could not be found and had presumably been misplaced or lost could not of itself undermine the trustworthiness of those documents which were available. In short, it is appropriate to examine the material which the Crown sought to have admitted in evidence and to ask whether that material fell within the criteria for admissibility contained in s40A(1) rather than asking whether other documents not produced might also have been admissible and, as a consequence may have produced a clearer picture of events over a more extended period of time.

56. Once this question is answered in the affirmative, one must turn to the discretionary question which may arise under s40A(2). Considerations of how the prima facie admissible material may be distorted or otherwise be rendered valueless by the unavailability of comparable entries or documents should be considered at this stage of the process.

57. Mr O'Doherty, counsel for the appellant, submitted that because a number of specific errors could be identified in the Table Information Sheets and Win/Loss records for the Hobart casino, and because some of the Table Information Sheets for the periods March 1987 to mid-July 1987 and November 1987 to December 1987 could not be produced because they were either lost or misplaced, the material even if capable of satisfying the threshold test provided by s40A(1)(b), was both inaccurate and incomplete, and it would be prejudicial to the appellant to allow it to go into evidence. Counsel for the Crown, whilst conceding that the documents were deficient in some respects, submitted that such errors as were either conceded by Mr Jaeger in his evidence on the voir dire or otherwise demonstrated by analysis of the documents, were not of such magnitude or frequency as to cast doubt upon the basic integrity and overall accuracy of the information recorded in the documents or the manner in which the information was recorded. The records in question covered transactions in respect of 276 individual days on which the appellant was gambling at the Hobart casino, of which 149 were in 1987 and 127 were in 1988. There were 418 entries in the Win/Loss Books in respect of the appellant which could be compared directly to available Table Information Sheets. Within these 418 entries, there were 22 identified errors which resulted in an adjustment to the overall win/loss position of the appellant so as to effectively increase his calculated nett losses by a sum of $9,150 in excess of the estimated loss suggested by the uncorrected material. Crown counsel pointed out that the movement of moneys represented by the win/loss figures in relation to the transactions in which the appellant was involved over the period in question, totalled approximately $1,840,000 and thus, it was submitted, the error rate within the documentation was very low indeed. A schedule was prepared by counsel giving details of each identified error and, we think it fair to say after examining that document, that many of the so called "errors" are more properly characterised as omissions rather than mistakes. Some of the so called errors consist of either a missing Table Information Sheet (three examples) or betting details recorded on a Table Information Sheet which have been left out of account in the total produced for the relevant day in the Win/Loss Book (five examples). Included in the overall errors are three occasions on which the wrong date has been inserted on the Table Information Sheet but an error of this kind has no effect upon the overall win/loss position depicted.

58. The method of compilation of both the Table Information Sheets and the Win/Loss Books was exhaustively discussed by both counsel for the appellant and counsel for the Crown. It appears that, in basic terms, the Table Information Sheet is a financial record of the casino compiled in and used for the normal purposes of the casino business. From one perspective, and, from the casino point of view the most important perspective, it indicates whether any particular gambling location within the casino is running at a profit or loss at any given time. The sheets are compiled by inspectors employed by the casino and these inspectors operate in three separate shifts at each location during the course of any day on which the casino is in operation.

59. As part of their duties the inspectors are required to note the activities of any high profile gamblers who are operating at their location at any given time. There was no dispute that Mr Durovic was a very high profile gambler and that it would have been part of an inspector's duty to record his activities on any occasion that he was in attendance at the casino. It was agreed that his activities in respect of Keno would not be recorded by Table Information Sheets but, if he attended any other gambling activity, a Table Information Sheet would be in existence and his participation in respect of that activity would be recorded. There was a good deal of discussion between counsel and the bench as to the capacity of an inspector to accurately record the bets won or lost by a patron during any particular gambling session. It seems clear however, that although the inspectors were not expected to comply with any rigid system of recording individual bets, they were expected by their employer to produce an overall accurate compendium of a high profile gambler's wins or losses on any occasion on which he frequented their table during a particular shift. We are left in no real doubt that due to their experience and training in this type of activity inspectors could reasonably be expected to compile fairly accurate details of the kind described. We are therefore satisfied that insofar as he did so, the learned trial judge was entitled to conclude, as we have done, that nearly all of the documents satisfied the requirements of the Evidence Act, s40A(1)(b). In those very few instances where it could be said a particular entry was untrustworthy due to a specific error, the wrongful admission of that document could not possibly have affected the outcome of the trial either as a whole or in respect of any individual count, and for that reason the proviso must apply. As we have already said, in our opinion, the fact that some of the documents were unavailable does not impinge upon the operation of the statutory test. Once the statutory test has been fulfilled the question then becomes whether or not as a matter of general discretion the available documents, or any of them, should have been excluded. Section 40A(2) gives the court a discretion to exclude admissible material where "the interests of justice would not be served by the admission thereof". Furthermore, there is a general common law discretion to exclude material, the probative value of which is outweighed by its prejudicial quality. In our opinion an application of either or both of these tests did not oblige the learned trial judge to exclude the casino material. As already mentioned, it was plainly relevant. It did not give a complete picture of the accused's financial transactions at the casino over the relevant period, but of itself this is no basis for excluding it. We think the learned trial judge was correct when he said that such considerations went to the weight of the material admitted rather than to its complete exclusion from the trial (compare R v Gordon (1993) 2 NZLR 209 per Williamson J at 216). In our opinion the jury were quite capable of appreciating the point which was made by the defence, and in no way controverted by the Crown, that the records did not cover the whole of the period during which the appellant frequented the casino and furthermore, the records did not cover any transactions which he undertook on the Keno game. Obviously it was open to the jury to accept the argument based on the accused's evidence and cross-examination of the casino employees that he had won considerable amounts of money which were not reflected in the records produced and that, although sustaining an overall nett loss in respect of gambling transactions during the relevant period, these losses had been in the order of $150,000 rather than something well over $400,000 as an uncritical acceptance of the documentary evidence may tend to suggest.

60. We think that the documentary material produced was important evidence and capable of having a considerable influence on the outcome of the trial generally. It established that the appellant was a heavy gambler over an extensive period of time and that, so far as the evidence enabled a pattern to be discerned, he had an overall tendency to lose rather than to win. There was additional evidence which indicated that his known financial resources, other than those which may have come from his misappropriations, were not really capable of sustaining a gambling pattern of this magnitude or consistency, the low water mark of which occurred during a so called "special tour" one weekend when, having been provided with free facilities at the casino, the appellant apparently lost a total of $63,000 during his visit. Mr Jaeger also described the appellant as being "our largest roulette player" during the period over which the alleged defalcations occurred.

61. In Albrighton v The Royal Prince Alfred Hospital (1980) 2 NSWLR 542, the New South Wales Court of Appeal was dealing with the admissibility of hospital records. Although it may be conceded that in some respects different considerations apply to the reception of such records, the observations of Hope JA at 549 are worth mentioning:

"No doubt mistakes may occur in the making of records, but I

would think they occur no more, and probably less often,

than in the recollection of persons trying to describe what

happened at some time in the past. When what is recorded is

the activity of a business in relation to a particular

person amongst thousands of persons, the records are likely

to be a far more reliable source of truth than memory. They

are often the only source of truth."

62. In our opinion the challenged casino records were admissible and it has not been shown that the learned trial judge failed to exercise his discretion appropriately by declining to exclude them. This ground of appeal must fail.

63. "The learned Trial Judge erred in law in failing

to uphold a no case submission in respect of the stealing

charges."

64. It will be noted at the outset that the appellant does not claim that during the course of the trial there was no evidence upon which a reasonable jury, properly instructed, could have convicted him upon the stealing charges. Such a submission would be totally untenable because the appellant, through his counsel Mr O'Doherty, made it quite clear towards the conclusion of the trial, both by the conduct of his defence and by specific concessions, that he did not claim that the company consented to his taking company monies for his own purposes.

65. The foundation for the unsuccessful "no case" submission was that the Crown case did not establish, and could not establish, that any monies taken by Mr Durovic had been taken by him without the company's consent and thus could not constitute the crime of stealing under the Code, ss226 and 234.

66. Mr O'Doherty submits that the question whether or not the no case submission has resulted in a miscarriage of justice to his client must be determined on the basis of the evidence as it stood at the conclusion of the Crown case, ie at the time when the submission was made, rather than at the conclusion of the defence case.

67. We are prepared to assume, without deciding, that this proposition is correct, although we note that there is no judicial unanimity as to the appropriate method of approach in a case of this kind.

68. The English position is summarized in Halsbury's Laws of England 4th edn, VolII, par290 in the following terms:

"... if a submission of no case is wrongly rejected by the

trial judge, the Court of Appeal will not look at evidence

adduced subsequently in order to support a conviction for

that particular offence."

69. This view was accorded tentative support by Rowland J in Praskar v The Queen (1988) 1 WAR 190 at 198-199.

70. On the other hand, Neasey J, sitting as a member of the Court of Criminal Appeal in Riseley v The Queen (1970) Tas SR 41 at 61 said:

"If a submission of no case is made unsuccessfully, and the

defence then calls evidence, the question whether the jury

could reasonably convict will be considered on the whole of

the evidence." (presumably the whole of the evidence taken

at the trial including any defence evidence). His Honour

cites R v Power (1919) 1 KB 572 as authority for this

proposition, but oddly enough the same case is cited by

Halsbury as one of the authorities for the contrary view.

An examination of the text of Power reveals that Neasey J's

interpretation was correct.

71. Nonetheless there is much to be said for the view that, as a matter of logic, the proposition stated in Halsbury is to be preferred and thus an appellate court considering the sufficiency of the evidence should conclude that there has been an appealable error if a no case submission is wrongly rejected at the trial. But we are also of the provisional view that if the appellate court then upholds the relevant ground of appeal, it is entitled to, and should, examine the whole of the evidence given at the trial, including the defence evidence, for the purpose of deciding whether or not the proviso should be applied and the appeal dismissed. Normally, we would think, the provision of incriminating evidence by the accused or his witnesses would justify the appellate court in dismissing the appeal if no other substantial grounds of appeal could be sustained.

72. Happily, however, we are able to resolve Ground 12 in the present case without reaching a concluded view on the interesting problem just mentioned.

73. Mr O'Doherty relied principally upon R v Roffel [1985] VicRp 51; (1985) VR 511. That was a decision of the Victorian Full Court which decided, by a majority, that the applicant's convictions upon a presentment for five counts on the crime of theft under the Crimes Act 1958 (Vic) could not stand because, although the legislation contained no specific requirement that an appropriation by an alleged thief must be without the consent of the owner, there was implicit in the legislation a requirement of proof that there had been some adverse interference with or usurpation of the rights of the owner. The facts of that case, as summarized in the headnote of the report, were as follows:

"The applicant and his wife were the sole shareholders and

directors of a small proprietary company. The company had

been established by the applicant in 1977. He had formerly

conducted his clothing manufacturing business in partnership

with his wife. Upon the formation of the company, it

purchased the partnership assets. The purchase price

remained unpaid. In 1979 the premises occupied by the

company were destroyed by fire and the insurance proceeds

were paid into the company's bank account. The company had

a number of trade creditors and the insurance proceeds were

insufficient to meet all claims by these creditors.

The applicant drew five cheques upon the company's account

of which four were payable to cash and the fifth was payable

to a travel agency. As managing director and secretary of

the company he was entitled to draw cheques on the company's

account. It was open to the jury to infer that he had used

the proceeds of the cheques for his own purposes."

"That a company is a legal entity separate from its

corporators has been trite law at least since Salomon v

Salomon and Co Ltd (1897) AC 22. Thus there is no doubt

that a natural person can steal from a company. Nor is

there any reason in logic or in legal theory why a person

should not be guilty of stealing from a company of which he

was the dominant shareholder and director, although it will

not often be possible to prove that he has done so. It is

also true that a company which gives property to one of its

shareholders or to one of its directors does not by that act

alone, without more, commit any offence against the criminal

law. Nor is a person who receives a gift from a company by

that act alone, without more, guilty of theft from the

company even if he owns almost all of the shares and is the

governing director with plenary powers.

In the present case it is necessary to ask upon what act of

appropriation the Crown relies to prove the theft. Since it

is, in the four counts presently under consideration, the

theft of money that is alleged, the Crown doubtless relies

upon the receipt of the money from the company's bankers as

the act of appropriation. But where is the element of

usurpation of the company's rights in the act of receiving

the money? The cheque was the company's cheque, made

payable to cash and in the possession of the applicant who

was the de facto controller of the company. There was no

evidence to suggest that the company did not intend the

applicant to have the money and to use it for his own

purposes. If the company decided to give the money to the

applicant in order to defeat its creditors, that would be

quite irrelevant. The motive of the company in making the

gift could not convert the applicant's act in receiving the

money into a usurpation of the company's rights."

"The company was in truth, if strictly not in law, no more

than a family partnership business carried on by the

applicant within a corporate shell. If the directors held a

meeting and resolved that cheques be drawn on the company's

funds as in fact they were drawn, and the resolution was

duly minuted together with an acknowledgment that the course

adopted was with the object of defeating the claims of the

company's trade creditors, it was said that it could

scarcely be maintained that the payee of the cheques had

stolen them or their proceeds from the Company. Can it be

any different if the company has followed such a course, not

formally, but informally? If done informally, it means

merely that the evidentiary question might arise in a more

acute form. For instance there may be no direct evidence

that the applicant's wife, as a co-director, approved the

payments. But if the circumstances of the transaction

suggested that she did, it would be for the prosecution to

prove that she did not; not for the applicant to prove

expressly that she did.

...

In my opinion the evidence in the present case can admit of

no finding other than that the applicant was to be

identified with the company. If ever there were a case in

which a natural person could be said to be the embodiment of

a corporate entity then this is that case. Once that

conclusion is reached then his actions in relation to the

company's affairs must be treated as being the company's

actions. The cheque dealings were thus 'transactional'.

Does this conclusion prevent the dealings from forming the

foundation for charges of theft.?"

76. His Honour then went on to deal with Attorney-General's Reference (No 2 of 1982) (1984) 2 All ER and decided that it had no relevance to the matter then before the Court.

77. Brooking J took the view that a company had no unfettered right to dispose of its assets as it wished, particularly if the apparent purpose in doing so was to denude the company of capital to the detriment of its creditors. He therefore tended to the conclusion that notwithstanding the apparent complicity of both the applicant and his wife in the questioned transaction, there could be said to be an adverse interference with the company's rights. However he dissented from the majority on other grounds.

78. The facts of the present case are very different from those in Roffel. Although the prosecution clearly relied upon the proposition that the appellant was in a position of dominance within the company, particularly in relation to the administration of accounts, dealings with creditors and book keeping and that this position of dominance placed him in a very favourable position to carry out the criminal act of stealing on the occasions charged, the Crown case did not involve the suggestion that the appellant was the sole embodiment of the company or its alter ego in any relevant way. As Mr Virs pointed out to the learned trial judge and also to this Court, there were several other substantial shareholders in the company at all relevant times. There was direct evidence of their lack of consent to the appellant's appropriation of company funds to his own use and there was additional evidence as well from which an absence of consent on their part could be inferred. Furthermore, these individuals were not all passive shareholders and Mr Caccavo in particular was closely involved in the company's day to day activities and had committed significant personal and family funds to the company's operations.

79. In our view these facts alone serve to distinguish the present case from Roffel, but in any event, as pointed out by Mr Virs in the course of his very helpful submissions, even if there was evidence in the present case that the appellant could be characterized as the sole embodiment of the company, such a characterization was a jury question which could only be determined as a matter of fact by the jury. It was not a characterization which the trial judge could make himself for the purpose of giving a favourable ruling on a no case submission. Mr Virs' argument is clearly right and is supported by what the Full Court said in R v Clarkson [1987] VicRp 80; (1987) VR 962 at 979.

80. Mr Virs also argued that Roffel was wrongly decided. It is certainly true that it has been distinguished in a number of subsequent Victorian decisions. It also seems clear that insofar as the approach of the Court was based upon observations by members of the House of Lords in Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; (1972) AC 153, it may be questioned as that case was concerned with the circumstances in which a company may incur liability for a statutory offence rather than, as here, whether an officer of the company may commit an offence against the company.

81. But these factors alone would not lead to a conclusion that the result reached in Roffel was erroneous. Mr Virs, however, took us also to Attorney-General's Reference (No 2 of 1982) (1984) 2 All ER 216, Christakis Philippou (1989) 89 Cr App R 190 (in which Roffel was specifically disapproved) and the recent discussion of the House of Lords in R v Gomez [1992] UKHL 4; (1993) 1 All ER 1. In the latter case at 40 Lord Browne-Wilkinson said:

"Turning to the company cases, the dictum in Morris has led

to much confusion and complication where those in de facto

control of the company have been charged with theft from it.

The argument which has found favour in certain of the

authorities runs as follows. There can be no theft within s

1 if the owner consents to what is done: Morris. If the

accused, by reasons of being the controlling shareholder or

otherwise, is 'the directing mind and will of the company'

he is to be treated as having validly consented on behalf of

the company to his own appropriation of the company's

property. This is apparently so whether or not there has

been compliance with the formal requirements of company law

applicable to dealings with the property of a company and

even to cases where the consent relied on is ultra vires:

see R v Roffel [1985] VicRp 51; (1985) VR 511 and R v McHugh (1988) 88 Cr App

R 385.

In my judgment this approach was wrong in law even if the

dictum in Morris had been correct. Where a company is

accused of a crime the acts and intentions of those who are

the directing minds and will of the company are to be

attributed to the company. That is not the law where the

charge is that those who are the directing minds and will

have themselves committed a crime against the company: see

Attorney-General's Reference (No 2 of 1982) (1984) 2 All ER

216, (1984) QB 624 applying Belmont Finance Corp Ltd v

Williams Furniture Ltd (1979) 1 All ER 118, (1979) Ch 250.

In any event, your Lordships' decision in this case,

re-establishing as it does the decision in Lawrence, renders

the whole question of consent by the company irrelevant.

Whether or not those controlling the company consented or

purported to consent to the abstraction of the company's

property by the accused, he will have appropriated the

property of the company. The question will be whether the

other necessary elements are present, viz was such

appropriation dishonest and was it done with the intention

of permanently depriving the company of such property? In

my judgment the decision in R v Roffel and the statements of

principle in R v McHugh (1988) 88 Cr App R 385 at 393 are

not correct in law and should not be followed. As for A-G's

Reference (No 2 of 1982), in my judgment both the concession

made by counsel (that there had been an appropriation) and

the decision in that case were correct, as was the decision

in R v Philippou (1989) 89 Cr App R 290.

I am glad to be able to reach this conclusion. The

pillaging of companies by those who control them is now all

too common. It would offend both common sense and justice

to hold that the very control which enables such people to

extract the company's assets constitutes a defence to a

charge of theft from the company."

82. The tension between Morris [1984] UKHL 1; (1984) AC 320 and Lawrence [1971] UKHL 2; (1972) AC 626 arising from the provisions of the Theft Act 1968 (UK), which is in all significant respects identical to the Crimes Act 1958 (Vic), does not arise under the Tasmanian Criminal Code and there is no need to pursue it here notwithstanding Mr Virs' interesting comparative analysis of the relevant sections during argument.

83. What is significant for present purposes is what both Lord Browne-Wilkinson and Lord Lowry said as to the question of whether or not the person exercising the directing mind of the company could effectively consent to the appropriation of company funds so as to prevent his action of appropriation amounting to stealing in a case such as the present. Lord Lowry dissented from the majority in Gomez (supra) but his views upon this particular issue accord with those of Lord Browne-Wilkinson and do not conflict with any other member of the Court. At 36 he said:

"... But the fact that the Morris principle can be

misapplied to a company theft case (and that the Lawrence

principle cannot be so misapplied) is not an argument for

saying that the Morris dictum is wrong and the Lawrence

dictum is right. The mistake is to say that a 'directing

mind' accused is to be treated as having validly consented

on behalf of the company to his own dishonest taking of the

company's property. Provided that mistake is avoided, the

Morris principle poses no threat to a just outcome in

company theft cases.

The company and the person (or persons) constituting the

directing mind are two (or more) separate persons: Salomon v

A Salomon and Co Ltd (1897) AC 22, (1895-99) All ER Rep 33.

That fact should be easily appreciated when the company is

the victim of the other person (or persons). The

'directing mind', when taking the company's property, does a

unilateral act, to the prejudice of the company, which the

company does not authorise or consent to. My Lords, if I

may revert to the proposition that a person cannot consent

to the theft of property from himself, it is absurd to

suppose that a company consents to the theft of its own

property, merely because the thief is for most purposes of

the company its directing mind. The act of the directing

mind is here unilateral and not consensual and bilateral."

84. In our respectful opinion the passages quoted from the judgments of Lord Lowry and Lord Browne-Wilkinson correctly state the principle which should apply in circumstances such as arise in the present case. Nonetheless, despite the disapproval of Roffel expressed in Gomez and other English decision, we would not go so far as to say that on the question of consent it is no longer good law provided its operation is confined to its own very special factual circumstances. In our opinion, Ground 12 of the appeal fails.

85. "The learned Trial Judge failed to direct the jury

at all or adequately as to what evidence was relevant to

each count in the indictment."

86. This ground was withdrawn during the hearing of the appeal.

87. "The conviction (sic) should be set aside on the

basis that the verdicts of guilty are unsafe and

unsatisfactory and against the weight of the evidence."

88. Mr O'Doherty gave this fashionable ground a new twist. He did not argue that any reasonable jury must have entertained a reasonable doubt as to the appellant's guilt on all or any of the counts. His proposition was that the "verdicts are unsafe and unsatisfactory having regard to the totality of the grounds argued at this appeal". There is simply no substance to such a ground. If no error can be shown under any individual ground, the mere fact that there have been a multiplicity of unsuccessful grounds can scarcely render the outcome of the trial unsafe or unsatisfactory. If an error can be shown and the proviso cannot be applied in respect of that error the appeal should succeed but on the basis that there has not been a fair trial of the accused according to law; not on the basis that the result is unsafe or unsatisfactory. This ground too must fail.