GREENAWAY -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 166 (16 December 2022)

Count 34: On 9 March 2017 at Geraldton, the appellant stole $1,461,800.33, the property of the beneficiaries of the YNP Trust.

1. On 4 November 2021, the appellant was sentenced to a total effective sentence of 6 years 4 months' imprisonment from that date. He was made eligible for parole, and a compensation order in the amount of $2,179,533.58 was made in favour of the YNP Trust.
2. The appellant now appeals against his convictions on five grounds. Ground 1 contends that the trial judge made a wrong decision on a question of law by refusing to admit a document into evidence under s 79C of the Evidence Act 1906 (WA). Ground 2 contends that a miscarriage of justice was occasioned when material evidence, which was admitted at the appellant's trial, was never drawn to the jury's attention. Ground 3 challenges the adequacy of the trial judge's directions in relation to count 2. Ground 4 challenges the adequacy of the trial judge's directions in relation to counts 1 and 3 ‑ 34. Ground 5 contends that the guilty verdicts were unreasonable or cannot be supported by the evidence.
3. As the appeal notice was filed one day late, the appellant requires an extension of time in which to appeal. The applications for an extension of time, and for leave to appeal on the above grounds, were referred to the hearing of the appeal.
4. On 31 October 2022, the court granted the appellant bail pending the determination of the appeal or further order.
5. For the following reasons, an extension of time in which to appeal and leave to appeal on all grounds should be granted. Grounds 3 and 4 are established. Grounds 1 and 5 are not established in relation to the stealing counts. It is unnecessary to determine ground 2. It follows that the appeal should be allowed and the convictions on all counts set aside. We would enter a judgment of acquittal on the fraud offence charged in count 2 on the basis that the prosecution case at trial was fundamentally misconceived. We would order a new trial on the stealing offences charged in counts 1 and 3 ‑ 34 of the indictment.

1. The following facts were not contentious either at trial or on appeal.

1. The YNP Trust was established by the YNP Trust Deed dated 26 May 2004. Ronald Eric Shay was the settlor of the YNP Trust and the appellant was the original sole Trustee[1] of the YNP Trust.[2] The terms of the YNP Trust Deed were varied by a Deed of Variation dated 10 October 2008.[3]
2. The YNP Trust Deed, as varied by the Deed of Variation, contained the following relevant provisions.
3. The Beneficiaries of the YNP Trust were the Yugunga-Nya People (a native title claim group), their spouses and children and any persons of Aboriginal descent living (permanently or temporarily) in the Shire of Meekatharra or the Shire of Cue.[4] The YNP Trust was a discretionary trust, and no individual Beneficiary or group of Beneficiaries had any vested interest in, or entitlement to, any of the Trust Fund.[5]
4. The Trust Fund was defined to be the settlement sum of $10 and 'all moneys, investments and other property from time to time paid, or transferred to and accepted by the Trustees from any person as additions to the Trust Fund', together with income added to the Trust Fund and accretions to the capital of the Trust Fund.[6] The Trustee declared that the Trust Fund was held on trust subject to the powers and provisions contained in the YNP Trust Deed.[7]
5. Subject to the Trustee's entitlement to retain and receive reasonable professional costs and reasonable expenses in undertaking trust activities, no part of the Trust Fund was to be held or applied for the personal benefit of the Trustee.[8]
6. The primary object and purpose of the YNP Trust was the relief of 'aged, poverty, sickness, suffering, distress, misfortune or destitution of the Beneficiaries'. The secondary objects and purposes included the advancement of education of the Beneficiaries, the advancement of the culture and religion of the Beneficiaries and other purposes beneficial to the community of the Beneficiaries. The objects of the YNP Trust were to be carried out without purpose of private gain.[9]
7. The Trustee was to hold the Trust Fund in perpetuity and apply the capital and income amongst the Beneficiaries for the above objects and purposes.[10]
8. Specific powers of the Trustee included:
   1. investing any of the Trust Fund in any form of investment other than investments which are speculative in accordance with the YNP Trust Deed and any agreement between the Trustee and any other person;[11]
   2. acquiring and holding personal property for the purposes of the Trust;[12]
   3. acquiring any real or personal property which the Trustee considered necessary or convenient for achieving the objects and purposes of the Trust;[13] and
   4. lending or advancing money or giving credit to any person or company on prudent and commercial terms with adequate security.[14]
9. The Trustee had the ultimate decision-making power in all matters relating to the YNP Trust.[15] An Advisory Committee of not more than 10 members was established to advise the Trustee.[16] The Trustee was required to consult with and obtain the recommendation of the Advisory Committee on matters which included the investment and distribution of the Trust Fund.[17] However, the Trustee was not bound to act on any recommendation or advice of the Advisory Committee.[18]
10. The Initial Advisory Committee comprised nine individuals named in the YNP Trust Deed (including Mr Ron Shay).[19] Subsequently, members of the Advisory Committee were to be elected at community meetings of the Yugunga-Nya People which the Trustee was required to organise at least once a year.[20] If a quorum of 15 adult Yugunga‑Nya People were not present at a community meeting, the existing members of the Advisory Committee would serve a further 12 months as members of the Advisory Committee.[21]
11. The Advisory Committee had the power, by a three-quarter majority decision of all Advisory Committee members, to terminate the appointment of a person as Trustee and to appoint a person or persons as a replacement Trustee.[22]
12. The income of the YNP Trust primarily came from payments under agreements between the native title claimants and companies undertaking mining on the claim area. The revenue of the YNP Trust increased significantly in 2013, as indicated in the following table:[23]

YNP Trust Income for Financial Years ending 30 June 2010 to 30 June 2017

1. West Harbour Pty Ltd (West Harbour) was incorporated in 1994 and was the trustee of the West Harbour Unit Trust. A Unit Holder's Agreement of 2007 identified the following unit holders of the West Harbour Unit Trust at that time:[24]

Ian Douglas Wheatland and Norene Patricia Mazzuchelli as Trustees for the I & N Investment Trust

Terence Roy Edwards as Trustee for the Edwards Family Trust

1. Mr Wheatland, Mr Edwards, Mr Beardman and Mr North were all directors of West Harbour around the time the Unit Holder's Agreement was executed.
2. West Harbour, as trustee for the West Harbour Unit Trust, held a lease over the site of, and operated the business of, the Freemasons Hotel in Geraldton.[25]

Loan agreement between appellant and Fawrkt dated 10 March 2010

1. A loan agreement dated 10 March 2010 was executed between the appellant (as lender) and Fawrkt (as borrower).[26] The loan agreement recorded that the appellant had lent $75,002 to Fawrkt. The purpose of the loan was to enable Fawrkt to purchase 56 units in the West Harbour Unit Trust and two shares in West Harbour as trustee of the West Harbour Unit Trust.[27]
2. The loan was required to be repaid on or before 30 April 2021 at latest, subject to the appellant's discretion to require only partial repayment of the loan.[28] Fawrkt could repay the loan at any time,[29] and was not required to pay interest on the loan.[30] Fawrkt was required to pay all outgoing costs of the Freemasons Hotel, maintain sufficient insurance on the Freemasons Hotel and maintain the Freemasons Hotel.[31]
3. The appellant signed the 10 March 2010 loan agreement for both borrower and lender. The execution panel for the borrower was in the following terms:

SIGNED BY Thomas Graham Greenaway as Trustee for the Yugunga‑Nya People's Trust, Director Fawrkt Pty Ltd[.]

1. Fawrkt was registered as a proprietary limited company on 22 March 2010. On registration, the appellant was the sole director and secretary of Fawrkt. He also held the only issued share in Fawrkt.[32]
2. The company registration form was lodged with the Australian Securities and Investments Commission (ASIC) on 22 March 2010 by ACN Direct Pty Ltd and signed by Rodney John Hinchcliffe. The letter 'Y' was typed in the section of the form which asked whether shares were beneficially owned. The ASIC Current & Historical Company Extract for Fawrkt also indicated that the appellant held the share in Fawrkt beneficially.[33]

Acquisition of 56 units from Mr North on 25 March 2010

1. On 25 March 2010, Phillip McLaren North transferred his 56 units in the West Harbour Unit Trust to Fawrkt for $75,000.[34]
2. Mr North ceased to be a director of West Harbour on 23 March 2010. The appellant was appointed as a director of West Harbour on 23 March 2010.[35]

Loan agreement between Beachcroft and Fawrkt dated 17 June 2010

1. A loan agreement dated 17 June 2010 was executed between Beachcroft Holdings Pty Ltd (Beachcroft) (as lender) and Fawrkt (as borrower).[36] Beachcroft was a company controlled by the appellant and used as the corporate vehicle for his financial planning business.[37] The loan agreement recorded that Beachcroft had lent $25,000 to Fawrkt and may lend further moneys to Fawrkt. The purpose of the loan was to enable Fawrkt to operate the Freemasons Hotel.[38]
2. The loan was required to be repaid on or before 30 April 2021 at latest, subject to Beachcroft's discretion to require only partial repayment of the loan.[39] Fawrkt could repay the loan at any time,[40] and was not required to pay interest on the loan.[41] Fawrkt was required to pay all outgoing costs of the Freemasons Hotel, maintain sufficient insurance on the Freemasons Hotel and maintain the Freemasons Hotel and its surrounds.[42]
3. The appellant signed the 17 June 2010 loan agreement for both borrower and lender. The execution panel for the lender indicated that the appellant was a director of Beachcroft. The execution panel for the borrower was in the following terms:

SIGNED BY Thomas Graham Greenaway as Trustee of Yugunga-Nya Peoples [sic] Trust as Director Fawrkt Pty Ltd[.]

Acquisition of 84 Units from Mr Edwards on 25 August 2010

1. On 25 August 2010, Terence Edwards as Trustee for the Edwards Family Trust transferred his 84 units in the West Harbour Unit Trust to Fawrkt for $120,000.[43]
2. Mr Edwards ceased to be a director and secretary of West Harbour on 26 August 2010. The appellant was appointed as the sole secretary of West Harbour on 26 August 2010.[44]

1. At some time in 2012 (the evidence does not reveal the precise date), Mr Ian Wheatland and Ms Norene Mazzuchelli as trustees for the I & N Investment Trust transferred their 84 units in the West Harbour Unit Trust to Fawrkt for $35,360.18.[45]
2. Mr Wheatland ceased to be a director of West Harbour on 10 October 2012.[46]

1. The relevant entities operated the following bank accounts at all material times:[47]
   1. The appellant, as Trustee for the YNP Trust, operated a National Australia Bank (NAB) business management account with an account number ending in 8192 (YNP Trust Account).
   2. Fawrkt operated a NAB business cheque account with an account number ending in 7796 (Fawrkt Account).
   3. West Harbour, as trustee for the West Harbour Unit Trust, operated a NAB business cheque account with an account number ending in 6495 (West Harbour Account).
2. When the appellant (as opposed to his bookkeeper) caused a transfer to be made he would put his initials 'tgg' in the description of the transaction to 'track who was doing things'.[48]

Transfers from Fawrkt Account to West Harbour Account in early 2013

1. On various dates from 27 February 2013 ‑ 11 April 2013, amounts totalling $100,000 were transferred from the Fawrkt Account to the West Harbour Account. The payments were designated as 'loan for tax fawrkt tgg', 'loan from Fawrkt Fawrkt tgg' and 'loan to freemasons fawrkt'.[49]

Count 1: transfer of $72,000 from YNP Trust Account on 24 June 2013

1. On 24 June 2013, $72,000 was transferred from the YNP Trust Account to the Fawrkt Account, designated as 'loan t fawkt pl tgg'. Also on 24 June 2013, $100,000 was transferred from the Fawrkt Account to the West Harbour Account.[50]

1. A loan agreement dated 26 June 2013 was executed between the appellant as Trustee of the YNP Trust (as lender) and Fawrkt (as borrower).[51]
2. The loan agreement acknowledged that the appellant as Trustee of the YNP Trust had lent the sum of $72,000 to Fawrkt, and that further amounts may be lent to Fawrkt. The agreement stated that the loan was secured against the 100 units of the West Harbour Unit Trust owned by Fawrkt, which owned a lease over the business known as the Freemasons Hotel until 30 April 2021. The stated purpose of the loan was to 'establish a business'.[52] Clause 1.1 of the loan agreement defined the term 'Loan', and provided for payment of interest, as follows:[53]

The Borrower acknowledges that the Lender has lent to the Borrower the sum of $72,000 (the 'Loan') at 6% interest only that would occur on borrowing such funds. The Loan was made to the Borrower on an interest only basis.

1. Clause 2.1 of the agreement provided that all monies lent to Fawrkt must be repaid:

2.1.1. on or before 30th April 202l; or

2.1.2. the sale of the 100 Units in the West Harbour Unit Trust

2.1.3. the termination of the lease by West Harbour Unit Trust over the Freemasons Hotel, 79 Marine Terrace Geraldton.

2.1.4. upon any default by the Borrower; or

2.1.5. upon any other event referred to in this Loan Agreement that entitles the Lender to require repayment of the Loan.

2.2. If the loan becomes repayable then the Lender may at the Lender's discretion require only partial repayment of the Loan, in which event the balance of the Loan not repaid continues to be immediately due and owing and the terms of this Loan Agreement apply.

2.3. The Borrower will repay the Loan by instalments from profit of the business operations to be determined on the presentation of audited accounts after the end of each financial year, 1st July to 30th June each year.

1. Clause 3 of the loan agreement gave Fawrkt the right to repay the whole or any part of the Loan at any time even though no demand had been made for repayment and even though the term of the Loan had not expired. Clause 4.1 required Fawrkt to pay interest on the Loan on the basis as set out in cl 1.1 of the loan agreement.
2. The loan agreement provided for Fawrkt to 'provide the Units of the West Harbour Unit Trust owned by Fawrkt ... as security against this loan'. If security was not provided after 90 days on terms satisfactory to the appellant as Trustee of the YNP Trust, the appellant could demand repayment of the whole loan sum.[54]
3. Fawrkt agreed to 'maintain relevant business insurance' and to:[55]

Payment of annual interest within seven days of the determination of profit sufficient to pay the outstanding interest by Fawrkt Pty Ltd must be met without any default.

1. The loan agreement was signed by the appellant for both the lender and the borrower. The execution panel for the lender was in the following terms:

SIGNED BY Thomas Graham Greenaway, Trustee of the Yugunga-Nya People's Trust[.]

1. The execution panel for the borrower was in the following terms:

SIGNED BY Thomas Graham Greenaway, Trustee of the Yugunga-Nya People's Trust as FAWRKT Pty Ltd Director[.]

1. The appellant's signatures on the loan agreement were both witnessed by Mr Ron Shay.

Acquisition of 56 units from Mr Beardman in December 2013

1. On or about 6 December 2013, Brian Beardman transferred his 56 units in the West Harbour Unit Trust to Fawrkt for no or nominal consideration.[56] At this point, Fawrkt held all units in the West Harbour Unit Trust.
2. Mr Beardman ceased to be a director of West Harbour on 6 December 2013. From this point, the appellant was the only director of West Harbour.[57]

Counts 3 ‑ 33: transfers from YNP Trust Account to Fawrkt Account

1. On various dates from 7 November 2013 ‑ 21 February 2017, funds the subject of counts 3 ‑ 33 on the indictment were transferred from the YNP Trust Account to the Fawrkt Account. The amounts transferred on each occasion ranged from $10,000 to $150,000. They were generally designated as loans to Fawrkt in the transaction description. One of the transfer designations ended with the appellant's name and all other designations ended with 'tgg'. Equivalent amounts were transferred from the Fawrkt Account to the West Harbour Account, often (but not always) on the same day.[58]

Resolutions removing appellant as Trustee on 9 March 2017

1. A purported community meeting of the Yugunga-Nya People was held at Meekatharra on 9 March 2017. At that meeting, it was resolved to remove the existing members of the Advisory Committee and appoint a new Advisory Committee. The new Advisory Committee immediately resolved to remove the appellant as Trustee of the YNP Trust and appoint Bulhari Holdings Pty Ltd (Bulhari) as Trustee of the YNP Trust.[59]

Count 34: transfer of $1,461,800.33 on 9 March 2017

1. On 9 March 2017, $1,461,800.33 was transferred from the YNP Trust Account to the Fawrkt Account. The transfer was designated 'Investment tgg'.[60]

Subsequent transfers from Fawrkt Account to West Harbour Account

1. On various dates from 10 March 2017 ‑ 17 July 2017, transfers totalling $234,000 were made from the Fawrkt Account to the West Harbour Account.[61] On 17 July 2017, the appellant ceased to hold office as a director of Fawrkt (see [62] below).

Settlement of Supreme Court proceedings on 25 May 2017

1. The appellant challenged the validity of his purported removal as Trustee of the YNP Trust in Supreme Court proceedings, which were settled at mediation on 25 May 2017. Consent orders declared the appellant to be Trustee of the YNP Trust on his undertaking to:[62]
   1. by no later than 26 June 2017, convene a community meeting of the Yugunga-Nya People for the purposes of electing an Advisory Committee;
   2. within three days of the community meeting being held, convene a meeting of the Advisory Committee, to be facilitated by an independent person, for the purpose of electing a Trustee of the YNP Trust; and
   3. resign as Trustee of the YNP Trust at the Advisory Committee meeting.

1. On 23 June 2017, the following transfers were made out of the Fawrkt Account:[63]
   1. $182,109.61 designated 'Repay Martransfer TGG' to Yugunga‑Nya People Pty Ltd (from which the appellant had also transferred funds to the Fawrkt Account on 9 March 2017).
   2. $206,000 designated 'Repay loan to TGG TGG' to the appellant in repayment of the amount he had lent Fawrkt.
   3. $278,259.19 designated 'Repay loan Ynpt tgg' to the YNP Trust Account.
   4. $574,348.14 designated 'Repay Loan Beachc TGG' to Beachcroft in repayment of amounts it had lent Fawrkt.
2. This left the Fawrkt Account with a balance of $134,737.65, which was transferred to Bulhari as the new Trustee of the YNP Trust on 18 July 2017.[64]

Resignation of the appellant as Trustee of YNP Trust on 5 July 2017

1. The appellant resigned as Trustee of the YNP Trust by letter to the Advisory Committee dated 5 July 2017. The letter stated that his resignation took effect upon the execution of the Deed of Appointment for the new trustee.[65]

Replacement of the appellant as YNP Trustee by Bulhari on 10 July 2017

1. By Deed of Appointment dated 10 July 2017, between two Advisory Committee representatives, the appellant as outgoing Trustee and Bulhari, Bulhari replaced the appellant as sole Trustee of the YNP Trust.[66]

Appellant's resignation from Fawrkt and West Harbour on 17 July 2017

1. On 17 July 2017, the appellant ceased to be a director and secretary of Fawrkt and West Harbour. The appellant also ceased to be a shareholder in Fawrkt and Fawrkt ceased to be a shareholder in West Harbour.[67]

Replacement of Bulhari as Trustee of the YNP Trust on 24 April 2018

1. At a meeting on 24 April 2018, the Advisory Committee resolved to remove Bulhari as Trustee of the YNP Trust and appoint ISPL Y‑N Pty Ltd (ISPL) as Trustee of the YNP Trust. Annexure C to the Deed of Assignment and Assumption, which gave effect to that transfer of the role of Trustee, identified the following as assets of the YNP Trust:[68]

Shares in FAWRKT Pty Ltd and related corporate entities Including West Harbour Pty Ltd and West Harbor Unit Trust[.]

Various loans and accounts including those relating to FAWRKT Pty Ltd and related entities[.]

1. The transfers from the YNP Trust Account to the Fawrkt Account, which are the subject of counts 1 and 3 ‑ 34, totalled funds of $2,909,300.33.
2. The total amount returned from the Fawrkt Account to the YNP Trust Account was $350,259.19.
3. The total amount transferred from the Fawrkt Account to the West Harbour Account from 27 February 2013 ‑ 17 July 2017 was $2,266,800.
4. The amounts transferred from the Fawrkt Account to repay loans from the appellant and Beachcroft totalled $780,348.14.
5. The amount transferred from the Fawrkt Account to Bulhari on 18 July 2017 was $134,737.65.

1. Financial reports for the YNP Trust for the financial year ending 30 June 2013 to the financial year ending 30 June 2016, and balance sheets as of April 2017 and 31 May 2018:[70]
   1. recorded funds transferred from the YNP Trust Account to the Fawrkt Account, which were the subject of counts 1 and 3 ‑ 33 on the indictment, as a current asset, described as 'Loan to FAWKT [sic]' or 'Loan to FAWRKT'; and
   2. did not record the share in Fawrkt or any interest in the business operating the Freemasons Hotel as an asset of the YNP Trust.

The transfer of $1,461,800.33 on 9 March 2017 does not appear in the balance sheet as of April 2017 but is accounted for in the balance sheet as of 31 May 2018.

1. Financial reports for Fawrkt for the financial year ending 30 June 2013 to the financial year ending 30 June 2017 showed:[71]

1. a loan to the West Harbour Unit Trust as a current asset; 2. shares in West Harbour (valued at $8 or $10) and units in the West Harbour Unit Trust (valued at $95,791.86) as non‑current assets; and 3. loans from:

(a) Beachcroft (ranging from $163,396 in the year ended 30 June 2013 up to $361,348.14 in the year ended 30 June 2016 and reducing to zero in the year ended 30 June 2017);
>
> (b) 'Svanos Trust'[72] (in the amount of $206,000 until the year ended 30 June 2016, reducing to zero in the year ended 30 June 2017); and
>
> (c) the appellant as Trustee for the YNP Trust.

The amounts of the loan from the YNP Trust do not correspond with, and are in excess of, the amounts shown in the financial statements for the YNP Trust. There is also an apparent typographical error in Fawrkt's financial reports up to the year ended 30 June 2016, which refer to the loan being from the appellant 'ATF Wyuganga-Nya Peoples Trust'.[73]

1. Financial reports for the West Harbour Unit Trust showed that, in the financial year ended 30 June 2012, the business made a before tax profit of $241,555.02. The business made the following losses before tax in the following financial years:[74]

1. At trial, the prosecutor framed the State's case against the appellant in the following way.

1. In relation to counts 1 and 3 ‑ 33, the State's case was that the appellant stole money from the YNP Trust Account when he transferred the money to the Fawrkt Account on various occasions. The prosecutor referred to the transfer of funds between the accounts as the taking or conversion of money. He contended that the accused was deemed to have taken or converted the money fraudulently on the basis that he took it with the intent of using it at his own will.[75]
2. The State's case was that the appellant was using the YNP Trust funds to support the running of the Freemasons Hotel which, on the State's case, was the appellant's 'own business' and was failing.[76]
3. At the beginning of his closing submissions, the prosecutor observed:[77]

[I]n reality, this trial boils down to this one simple issue: was the Freemasons Hotel [the appellant's] own business[?] The answer to this question will lead you to your verdict in each and every charge on the indictment.

The prosecutor observed that there was no dispute that the appellant transferred the funds referred to in the indictment or that, if the appellant were taking the money with the intention of using the money to run his own business (the Freemasons Hotel), he would be stealing that money. The prosecutor identified the real issue as being whether the appellant took or converted the money with intent to use the money at his own will, which turned on the single issue of whether the Freemasons Hotel was the appellant's 'own business'.[78]

1. The prosecutor contended that the only rational inference that could be drawn from all the factual circumstances, considered as a whole, was that the Freemasons Hotel was the appellant's 'own business'.[79] The combination of circumstances on which the State relied was:[80]
   1. The ASIC Current & Historical Company Extract for Fawrkt recorded that the appellant owned the share in Fawrkt beneficially.
   2. The name 'Fawrkt' was made up of the initials of the appellant's family members.
   3. The appellant used his own money to enable Fawrkt to purchase the units in the West Harbour Unit Trust and continued to use his own money to run the Freemasons Hotel (totalling about $700,000), both before and after he started using the YNP Trust Fund for that purpose.
   4. The appellant made no mention of the YNP Trust in his business dealings with other unit holders of the West Harbour Unit Trust.
   5. There was a lack of disclosure about the Freemasons Hotel business to the Advisory Committee.
   6. The appellant amended the minutes of the Advisory Committee in an attempt to avoid both criminal and civil liability for money he took from the YNP Trust Account.
   7. There was no objective evidence to support the appellant's contention that he purchased the Freemasons Hotel on behalf of the YNP Trust for the purpose of training or employing Yugunga‑Nya People.
2. The prosecutor contended that the appellant invested in the Freemasons Hotel for himself, and that he had taken funds from the YNP Trust Account on each charged occasion to support the running of his 'own business'.[81]
3. In relation to count 34, the prosecutor accepted that the appellant may have used a portion of the $1.4 million transferred from the YNP Trust Account to the Fawrkt Account on 9 March 2017 to continue operating the YNP Trust. However, the 'vast majority' of those funds were used for the appellant's 'own purposes' - either to fund the operation of the Freemasons Hotel or to 'pay himself back' money loaned by the appellant and Beachcroft to Fawrkt.[82] As the amount stolen was only a particular, the appellant could be found guilty of count 34 if he intended to use at least some of $1.4 million that he transferred on 9 March 2017 at his own will.[83]

1. The State's case in relation to count 2 was that, with fraudulent or dishonest intent, the appellant gained a benefit for his company, Fawrkt, by entering into the 26 June 2013 loan agreement. The State contended that the loan agreement was a device used to disguise what was in fact theft of money from the YNP Trust, and that it was never intended to be an enforceable agreement.[84]
2. The State contended that the conditions of the loan were 'highly favourable' to the borrower and extremely detrimental to the YNP Trust, including because the loan amount was only repayable if the Freemasons Hotel made a profit.[85]
3. The prosecutor contended:[86]

So the State says this loan agreement was an attempt by [the appellant] to make an illegitimate transaction appear to be legitimate. So that's the $72,000. It demonstrates that [the appellant's] fraudulent intent ‑ because he ‑ so obvious ‑ obviously bias in favour of the borrower, a company controlled by [the appellant], and some of the terms in this agreement are so bizarre that it shows that the loan agreement was not intended to be enforceable, and, in reality, it was just for show to an unsophisticated audience.

[The appellant] would have ‑ well, he would have known that the Freemasons Hotel was not making a profit when he executed the loan agreement, and there was no realistic expectation of the hotel being profitable in the short to medium-term. He was the person running the hotel, so he knew about the business more than anyone else, so, therefore, [the appellant] was fully aware that there was no income to support the loan repayment, and the loan was not adequately secured, so we say the loan agreement was a sham to mask [the appellant's] real intent which was to use the money from [YNP Trust] to prop up his failing business.

Now, given [the appellant's] professional background and extensive financial experience, we say there was just no way he would have entered into such an agreement if he was acting [honestly] and genuinely looking after the interest of the beneficiary, not to mention that this ‑ you know, this represents a fundamental breach of the trust that he was not to gain a personal benefit from the distribution of the trust fund. So the State says his fraudulent intent is apparent.

1. In closing, the prosecutor said that the case was 'not really about deceit' but was about 'using fraudulent means'. He said that 'fraudulent' meant 'dishonest'. The prosecutor said:[87]

The fraudulent means, in this case, is the signing of the loan document itself. The State case is that the loan agreement was a sham that was intended to disguise theft from the trust as loans.

1. The prosecutor argued that the 26 June 2013 loan agreement was a 'sham' on the basis that:[88]
   1. The agreement was signed by the appellant on behalf of both the lender and borrower, indicating that the agreement 'was not intended to be taken seriously or as an enforceable contract'.
   2. The repayment obligation is not clearly defined other than to say repayments would be from business profits, in a context where the Freemasons Hotel was struggling, meaning that 'no profits [meant] no repayment'.
   3. The loan was said to be secured by 100 units in the West Harbour Unit Trust, which was clearly inadequate in the circumstances.
2. The prosecutor concluded this aspect of his submission as follows:[89]

So we say the loan agreement was drafted in a way that favours heavily the borrower to the detriment of [YNP Trust]. This loan agreement doesn't work as [a] real contract because it was not intended to be a real contract. It was just for show to an unsophisticated audience. It is plainly not a prudent or commercial contract, having regard to the terms that I've just referred to and the adequacy of security.

1. The prosecutor submitted, in effect, that the appellant's alleged intent to defraud was to cause economic loss to the Yugunga-Nya People by signing a 'bogus' loan agreement to enable him to take money from the YNP Trust Account. The prosecutor contended that the appellant's intent to defraud was to be inferred from his conduct in signing what the State said was a 'fraudulent document'.[90]

1. The defence case was that the appellant held the share in Fawrkt on trust for the YNP Trust at all material times and that he was not the beneficial owner of the share in Fawrkt. Fawrkt was the vehicle by which the YNP Trust invested in the Freemasons Hotel, which was done with the knowledge of members of the Advisory Committee at the time. The appellant himself loaned money to the YNP Trust interest-free. He received nothing from the YNP Trust other than the fees he was entitled to charge for his services as trustee.[91]
2. Defence counsel denied that, under the terms of the 26 June 2013 loan agreement, the loaned amount was only ever repayable if the Freemasons Hotel made a profit. He contended, in effect, that the agreement provided for the loaned funds to be repaid on or before 30 April 2021 irrespective of whether the Freemasons Hotel made a profit.[92]

1. The following is a summary of the prosecution evidence led at trial, omitting some of the non-contentious matters summarised at [7] ‑ [71] above.

1. The prosecution called evidence from four members of the Advisory Committee, who gave evidence to the effect that they were not aware of any investment by the YNP Trust in the Freemasons Hotel.

1. Leonie Gentle was a member of the Advisory Committee from either 2005 or 2006[93] until 2015.[94] She did not know about the purchase of the Freemasons Hotel until after the appellant was removed as Trustee of the YNP Trust in 2017. The appellant did not discuss the purchase of the Freemasons Hotel at any of the Advisory Committee meetings she attended.[95] However, she accepted that she and other Advisory Committee members did not attend all meetings.[96] The appellant or his secretary took the minutes of the meetings that she did attend.[97]
2. When Ms Gentle was elected to the Advisory Committee, Ron Shay and Mavis Curley were on the Committee. Ron Shay died on 11 February 2019 and Ms Curley died in March or April 2010.[98]

1. Audrey Shar was not able to say exactly when she was on the Advisory Committee. She thought was on the committee for 8 ‑ 9 years. She was not on the Advisory Committee when the YNP Trust was established. She started on the Committee at most 10 years after the YNP Trust was established. She was voted on and off the Committee at certain times and had ceased being a member about 2 ‑ 3 years before she gave evidence (in August 2021).[99]
2. The appellant or his secretary took notes of the Advisory Committee meetings. As meetings progressed, members asked to see minutes of the meetings and financial statements.[100]
3. Ms Shar accepted that she did not attend all meetings of the Advisory Committee when she was a member.[101] Upon inspection of YNP Trust financial reports, she noticed a loan of about $750,000 to Fawrkt, which was not a name that she had heard of before. She assumed that the loan had something to do with an earthmoving project.[102] The appellant did not tell her that Fawrkt was an entity owned by the YNP Trust Fund.[103]
4. Ms Shar recalled going to court in Perth and afterwards attending a community meeting at Meekatharra, which was the appellant's last meeting as Trustee. He told the attendees of the community meeting that he was resigning as Trustee. At that meeting, the appellant also said that the YNP Trust had acquired the Freemasons Hotel, which was the first time that Ms Shar had heard anything about the acquisition.[104]
5. Ms Shar said that Ron Shay, who was deceased at the time of the trial, was keen to get involved in training young people in the hospitality industry.[105]

1. Evelyn Gilla is a senior elder of the Yugunga People. She is Ron Shay's sister and was 79 years old at the time of the trial.[106] Her evidence was somewhat disjointed. She said that the appellant did not ever speak about the Freemasons Hotel at any of the meetings she attended. She did not know anything about the Freemasons Hotel other than that there was a Freemasons Hotel in Geraldton.[107]
2. Ms Gilla was asked questions about a meeting of the Advisory Committee on 13 June 2018 at Meekatharra attended by Rod Carter, who was an officer of the trustee of the YNP Trust at that time. She recalled being at the meeting but could not recall Mr Carter saying anything about the YNP Trust owning the Freemasons Hotel.[108] The minutes of the meeting were marked as MFI 1.[109]

1. Sharon McDonald was a member of the Advisory Committee for one year from 2015 ‑ 2016.[110] She attended two Advisory Committee meetings and two community meetings in total.[111] There was no discussion of the Freemasons Hotel at the Advisory Committee meetings which she attended as a member.[112] The first she heard of the Freemasons Hotel was at an Advisory Committee meeting in Perth in 2017.[113]
2. Ms McDonald produced minutes of a community meeting held in Victoria Park on 25 June 2016, which the appellant had sent her and on which she had made handwritten notes. This was the only version of the minutes she recalled receiving.[114]

Evidence of former unit holders of West Harbour Unit Trust

1. Brian Beardman was the manager of the Freemasons Hotel, relevantly from 2001 until 2014.[115] Mr Beardman's evidence made it clear that he had a limited understanding of the business structure of the hotel. He said that he was gifted a 5% 'share of the Freemasons Hotel business' and later purchased another 15%.[116] When he bought in to the hotel business, the other unit holders of the West Harbour Unit Trust were Terence Edwards and Ian Wheatland. Phillip North subsequently bought a 20% interest.[117]
2. Mr Beardman understood that the appellant 'bought into the hotel' upon the purchase of Mr North's units in the hotel in around 2010.[118] Mr Beardman also understood that the appellant subsequently purchased Mr Edwards' and Mr Wheatland's shares. Towards the end of 2013, Mr Beardman and the appellant were the only two 'shareholders'.[119]
3. Mr Beardman gave evidence that there were monthly meetings of the unit or shareholders at which the business of the Freemasons Hotel was discussed. Mr Beardman knew that the appellant had a position in 'an Aboriginal trust' but could not recall the appellant ever bringing up the subject of the trust in any of their business meetings.[120] Mr Beardman could not recall the appellant discussing the creation of traineeships or employment opportunities for Aboriginal people.[121]
4. At the point when they were the only 'shareholders', the hotel business was not going 'as well as it had been', and this created friction between Mr Beardman and the appellant.[122]
5. At the end of 2013 or early 2014, Mr Beardman transferred his units to Fawrkt 'for free' as he was keen to be away from the business.[123] He thought that he finished in the first week of February 2014.[124] He was aware that Fawrkt was a company that owned the units which the appellant had acquired.[125]

1. Phillip North purchased 56 units in the Freemasons Hotel in 2007 for about $120,000. At that time, Ian Wheatland, Brian Beardman and Terence Edwards were the other 'shareholders'.[126] He relinquished his 'share' to the appellant in early-to-mid 2010 for $75,000.[127]
2. While Mr North said in his evidence that he believed that the appellant was purchasing the units for himself, he accepted that this was purely speculation on his part.[128] At the time of sale of Mr North's units, the appellant did not mention an Aboriginal trust or that he was buying the Freemasons Hotel for an Aboriginal trust. The appellant did not say that he was buying shares in the Freemasons Hotel so that he could provide training and employment to Aboriginal people.[129]

1. Terence Edwards was an accountant who gave evidence that he acquired shares in the 'freehold' and 'leasehold' of the Freemasons Hotel in 1995. The 'leasehold' of the Freemasons Hotel traded under West Harbour Pty Ltd as Trustee for the West Harbour Unit Trust.[130]
2. Mr Edwards transferred his 84 units to Fawrkt for $120,000 on 25 August 2010.[131] While Mr Edwards was aware that the appellant was acting as Trustee for the YNP Trust, the appellant had never mentioned the YNP Trust to him in the context of the Freemasons Hotel. The appellant never mentioned to Mr Edwards that he had purchased the Freemasons Hotel on behalf of the YNP Trust.[132] Mr Edwards could not recall the appellant mentioning that he would like to have traineeships for young Aboriginal people at the Freemasons Hotel.[133]

1. Georgia Lewis was the managing director of Bulhari at the time of the trial, which had a business of acting as trustee for Aboriginal groups.[134]
2. Towards the end of 2016, Ms Lewis was approached by Ms Gentle to see if she could assist in removing the appellant and appointing Bulhari as Trustee of the YNP Trust.[135] After consulting Ms Gilla and her brother, Rex Shay,[136] Bulhari obtained legal advice and convened a community meeting of the Yugunga-Nya People on 9 March 2017. At the meeting on 9 March 2017, the Advisory Committee members were replaced, and the Committee resolved to remove the appellant as Trustee of the YNP Trust and substitute Bulhari. Notice of his removal as Trustee was served on the appellant either that day or the next.[137] Documents removing the appellant as Trustee were provided to the bank operating the YNP Trust Account with a request to freeze the account.[138]
3. The appellant challenged the validity of his purported removal as Trustee in Supreme Court proceedings. The Supreme Court proceedings were settled at mediation on 25 May 2017 by consent orders that declared the appellant to be Trustee of the YNP Trust and recorded his agreement to resign at an Advisory Committee meeting to be convened no later than 10 August 2017. During the proceedings, Ms Lewis received notification of the appellant's intention to resign as Trustee of the YNP Trust. The Deed recording the appellant's resignation and appointing Bulhari as Trustee of the YNP Trust was signed in July 2017.[139]
4. Ms Lewis received two different versions of the following minutes of two Advisory Committee meetings.

1. The following text was included in minutes of a meeting of the Advisory Committee on 23 August 2010 received from the appellant's office as part of the transfer:

Trustee had investigated and proceeded with the purchase of a 20% interest in the Freemasons Hotel Geraldton. The Trustee will attempt to recruit Yugunga-Nya youth for enrolment in the Hospitality Course at Geraldton TAFE.

This text did not appear on the version of the minutes marked 'Original', which was received from the appellant's solicitors during discovery in the Supreme Court proceedings.[140]

1. The following text was included in minutes of a meeting of the Advisory Committee on 18 November 2011, received from the appellant's office as part of the transfer, in discussion of a proposed project:

The project would work in with our other hospitality venture at the Freemasons Hotel.

This text did not appear on the version of the minutes marked 'Original', which was received from the appellant's solicitors during discovery in the Supreme Court proceedings.[141]

1. Ms Lewis also produced a bundle of minutes of Advisory Committee and community meetings, received from the appellant's office, from 7 September 2012 until the date of his resignation. There was no mention of the Freemasons Hotel in any of those minutes, and the first mention of Fawrkt was in minutes of a meeting held on 24 June 2017.[142]
2. The appellant provided documents to Ms Lewis when she attended his office a few days after 10 July 2017, which included a signed transfer for the share in Fawrkt and transfer forms for units in the West Harbour Unit Trust signed by the appellant.[143] Bulhari did not transfer the units in the West Harbour Unit Trust to itself, which led to the loss of the liquor licence for the Freemasons Hotel and the need to apply for a new liquor licence.[144]

1. Detective Sergeant Tony Vesperman was the investigating officer, who gave evidence at trial and produced a number of documents. He was allocated the investigation file in November 2017.[145]
2. On 21 February 2018, Detective Sergeant Vesperman spoke to Mr Ron Shay at Mr Shay's home. Mr Shay, who was deceased at the time of trial, was willing to speak to the police but was not willing to provide a written statement.[146] He gave evidence that police executed a search warrant on the premises of the appellant's financial planning business on 20 February 2018 and arrested the appellant on 16 December 2019.[147]

1. Jason Sim was a senior forensic accountant employed by the Western Australia Police Force. He gave evidence of his analysis of bank statements, financial statements and the transactions referred to elsewhere in these reasons.

1. The following is a summary of evidence given or adduced by the appellant at trial, omitting some of the non-contentious matters summarised at [7] ‑ [71] above.

1. The appellant was 70 years old at the date of the trial and had lived in Geraldton for most of his life. He had worked as a financial planner since 1990 and had established a business, which his daughter had taken over.[148] He was not 'financially struggling, personally' between 2010 and 2018.[149] He was not an accountant or lawyer.[150]
2. The appellant said that he did not prepare financial statements for the YNP Trust or Fawrkt but rather engaged a bookkeeper and an accountant who worked together to prepare the results.[151]

1. The appellant accepted that 'Fawrkt' was an acronym of the initials of his wife, himself and their children and grandchildren, which he and his wife had used for a self-managed superannuation fund. He said that the Yugunga-Nya People have a link to the emu and the YNP Trust used a logo of an emu foot to represent that engagement. The logo of the three-pronged emu foot looked like a fork, so he tried to register the company in the name 'Forked'. When that name was not available, he used 'Fawrkt' which was phonetically the same.[152]

1. The appellant said that he held the share in Fawrkt as Trustee for the YNP Trust. He set the company up when Mavis Curley and Ron Shay, as founding members of the Advisory Committee, wanted to train young Yugunga-Nya People in hospitality. Ms Curley wanted the YNP Trust to buy the Royal Mail Hotel in Meekatharra, but that was difficult to entertain. The appellant had been told by his friend, Mr Beardman, that Mr North wanted to 'get out', so he pursued that opportunity on behalf of the Yugunga-Nya People.[153]
2. The appellant's evidence was that he discussed the Freemasons Hotel with the initial Advisory Committee - Mavis Curley, Ron Shay, Evelyn Gilla, Russell Little, Hazel Little and 'Mrs King'.[154] The appellant's evidence was that:[155]

And they expressed a concern to me about the antisocial behaviour of some of the Yugunga-Nya people would be detrimental if everybody in ‑ and everybody knew about the hotel ownership. They expressed concern to me that there would be pressure on the staff of the hotel from Yugunga-Nya people when they visited Geraldton or for those people who were Yugunga-Nya living in Geraldton.

What sort of pressure?---Demands for money. Demands for food. Demands for alcohol.

So what was the decision?---Decision was to basically keep it inhouse in the advisory committee level not to disseminate that out to the general Yugunga-Nya group. There was no benefit for the Yugunga‑Nya to be known as the owners in the general community either. So I agreed for their suggestion.

1. The appellant knew that some 'shares in the Freemasons Hotel' were available, and approached a lawyer who advised that, if he was going to start a business enterprise, it was better to do so through a company. The appellant asked his accountant to set up a proprietary limited company with one shareholder, being the appellant as Trustee for the YNP Trust. The appellant said that he did not have anything to do with filling out the registration forms and did not know of ACN Direct Pty Ltd or Rodney Hinchcliffe (who signed the form referred to at [[27 Myself as Graham Greenaway and myself as trustee of the Yugunga-Nya Peoples' Trust and then myself as director shareholder of Beachcroft and myself as trustee of YNPT.

1. The appellant downloaded loan agreements from a legal database and used these to prepare the loan agreements referred to at [23] ‑ [25] and [30] ‑ [32] above. He did not obtain legal advice in relation to the form of the loan agreements. The 17 June 2010 loan agreement was made when the appellant was preparing to purchase Mr Edwards' shares. The loan agreements were witnessed by his administrative assistant. The reason the money was repayable on 30 April 2021 was because the lease of the Freemasons Hotel ended on that date. The appellant did not charge Fawrkt interest on the loans as he thought that would be earning a benefit through his activities as Trustee of the YNP Tr[161] contrary to the terms of the YNP Trust Deed.161

1. By the time the 26 June 2013 loan agreement between Fawrkt and the appellant as Trustee of the YNP Trust was made, the appellant had been lending money to keep the Freemasons Hotel trading. The appellant had personally loaned Fawrkt about $206,000 and Beachcroft had loaned Fawrkt about $500,000 for Fawrkt's contributions to the operating expenses. By that time, Fawrkt had acquired 56 units from Mr North, 84 units from Mr Edwards and 84 units from Mr Wheatland and had an 80% interest in the West Harbour Unit Trust. As majority unit holder, Fawrkt could secure an amendment to the West Harbour Unit Trust deed to remove a restriction on the units being used as collateral, so that the YNP Trust could lend money to Fawrkt.[162]
2. The appellant signed each page of the 26 June 2013 loan agreement for Fawrkt and for the YNP Trust. His signature was witnessed by Mr Ron Shay.[163]

1. The appellant heard about the 9 March 2017 meeting of the Yugunga‑Nya community on that day. Someone called the appellant and told him that a 'breakaway group' were chasing the money and were going to write to NAB to shut down his access to the YNP Trust accounts. The appellant said that he moved about $180,000 from an account held by Yugunga‑Nya People Pty Ltd and about $1.4 million from the YNP Trust Account into the Fawrkt Account so the YNP Trust could keep operating. After that time, until his resignation as Trustee of the YNP Trust, he used the funds in the Fawrkt Account to pay operating expenses of the YNP Trust.[164]

1. The appellant's evidence was that his usual procedure for taking minutes of Advisory Committee and community meetings was to go to the meeting with a laptop, iPad, and phone. He recorded the meeting on the iPad and phone. After the meeting, he drafted some 'preliminary minutes' in the evening. He emailed the preliminary minutes to his office, where staff would promulgate the minutes out to the members of the Advisory Committee. When he got back to his office in Geraldton, he wrote out some 'full minutes' from the recordings, which ended up in the book of minutes.[165]
2. The appellant said that this process was followed for the minutes of the Advisory Committee meeting of 23 August 2010, referred to at [114] above. The app[166]ant said:166

There's also, you know, the challenge that Ron Shay and Mavis Curley gave me, that they would like to have not allowed the general group of Yugunga-Nya people, especially the ones that were notorious for their anti-social behaviour, knowing about the Freemasons Hotel purchase. So in respect to that, the minutes that were sent to the attendees at the meeting were a redacted section. The full minutes that were given to Bulhari at the handover is the second lot of minutes, which incorporates that. Bulhari was at the ‑ at the changeover, was the new, incoming trustee. They were given those minutes.

So which ones did you give to your lawyers?---The first section. Because at that stage, I was still trustee.

Is that the one with or without the reference to the Freemasons?---It's the redacted version, so without.

And the ones with the Freemasons Hotel mentioned, they were kept at your office, were they?---They were kept in the book of minutes, yes.

In the book of minutes which you handed to Bulhari?---Correct.

1. The appellant also said that the passage quoted at [115] above was redacted from the minutes of the Advisory Committee meeting on 18 November 2011 that were produced to members of the Advisory Committee at the next meeting. This was because of 'concern about the antisocial behaviour of some of the members and the Yugunga-Nya [P]eople if they knew that the hotel was owned by' th[167]NP Trust.167

1. The appellant maintained his account under cross-examination. He denied that Fawrkt was his company created for his own investment in the Freemasons Hotel.[168] The appellant denied that the 26 June 2013 loan agreement was just a device or sham to enable him to take money from the YNP Trust whenever he wanted and label it as a loan.[169]
2. During cross-examination, the appellant accepted that he knew that using the YNP Trust fund to run his own business would be a serious breach of the Trust. He also accepted that he knew that he had a duty to act prudently and commercially when exercising his power to lend money. He knew that he could not invest money from the YNP Trust fund without consulting the Advisory Committee as required by the YNP Trust Deed.[170] He agreed that, if he had been a beneficial owner of Fawrkt, the 26 June 2013 loan agreement would represent a serious breach of the trust.[171]
3. The appellant said that one of the reasons Fawrkt was established was to protect the YNP Trust from losing the tax advantage of its charity status by operating a commercial business.[172]
4. The appellant accepted that he had put in approximately $700,000 of his own money to support the running of the Freemasons Hotel and did so because he believed in the project.[173] The appellant explained that he believed the system was right for the training of the Yugunga-Nya People to 'broaden their outlook on life and give them a training to take themselves elsewhere away from their current predicament'.[174] However, he later said that none of the Yugunga-Nya People had been employed or trained during the time he operated the Freemasons Hotel.[175]
5. The appellant accepted that he had never mentioned anything in relation to the YNP Trust to other unit holders in the West Harbour Unit Trust.[176]
6. The prosecutor put to the appellant that the reason the 26 June 2013 loan agreement referred to the purpose of the loan as the establishment of a business, without mentioning the Freemasons Hotel, was that he did not want Ron Shay (who witnessed the appellant's signatures on the agreement) to know about the Freemasons Hotel. The appellant said that Ron Shay did know about the Freemasons Hotel.[177]
7. The appellant accepted that, in retrospect, the 26 June 2013 loan agreement did not provide adequate security for the ultimate loan amount of $2.9 million and was not a prudent or commercial agreement. However, this was not his view at the time of signing the 26 June 2013 loan agreement. He accepted that his view at the time of signing the agreement was based on his understanding that the 'lender and borrower had the same ownership as the trust' and that he would take a different view if Fawrkt was owned by a different person.[178] The appellant said that no repayments were made under the 26 June 2013 loan agreement up to the point he resigned as Trustee of the YNP Trust and director of Fawrkt.[179]

1. The appellant called David Watt, a chartered accountant, who gave evidence as to the transfers of funds between the different entities shown in accounts. Generally, his evidence did not contradict the evidence of Mr Sim as to those matters.
2. Mr Watt did give evidence that it was possible to reconcile the different amounts owing under the 26 June 2013 loan agreement shown in the financial statements for the YNP Trust and Fawrkt.[180]

1. The appellant called four witnesses who gave evidence as to his general good character: Phillip Cooper, Jim Chown, Gregory Eastman and Adam Murszewski.

Ground 3: directions as to the elements of the fraud charge

1. It is convenient to begin by considering ground 3, which challenges the trial judge's direction as to the fraud offence charged in count 2 of the indictment. Count 2 was pleaded in the following terms:

On 26 June 2013 at Geraldton [the appellant], with intent to defraud, by deceit or fraudulent means gained a benefit, namely a loan agreement with the [YNP Trust], for the benefit of [Fawrkt].

1. That is an offence against s 409(1)(c) of the Code, which provides, 'Any person who, with intent to defraud, by deceit or any fraudulent means ... gains a benefit, pecuniary or otherwise, for any person ... is guilty of a crime'.
2. In the present case, the alleged benefit charged in count 2 was the 26 June 2013 loan agreement, which was a benefit for Fawrkt. There was no issue at trial or on appeal that the 26 June 2013 loan agreement was a benefit which the appellant gained for Fawrkt. The real issues at trial were whether the appellant gained that benefit for Fawrkt by deceit or any fraudulent means, and whether he did so with an intent to defraud.

1. There are three elements to the offence created by s 409(1)(c) of the Code:[181]
   1. The accused had an intent to defraud.
   2. The accused, with that intent, engaged in deceit or employed fraudulent means.
   3. The deceit or fraudulent means employed by the accused caused a person to gain a benefit, pecuniary or otherwise.

1. The term 'intent to defraud' in s 409(1) of the Code has its common law meaning.[182] It is notoriously difficult to state exhaustively what is involved in the concept of 'intent to defraud',[183] and it is unnecessary to attempt to do so in the present case. For present purposes it is sufficient to note that an accused will have an intent to defraud where he or she intends to deprive a person of something (including money, property or some lawful right, interest, opportunity or advantage) that has actual or potential economic value by dishonest means.[184] As noted at [159] below, the trial judge in the present case directed the jury in those terms and no complaint is made about that aspect of his Honour's direction in this appeal.
2. There is no scope for the operation of s 22 of the Code, which provides for a defence of honest claim of right, in relation to an offence against s 409(1) of the Code. This is because an intent to defraud, which would negate the defence under s 22, is an element of the offence created by s 409(1) of the Code. However, a person who has an honest claim of right to the property or benefit in issue will not have an intent to defraud within the meaning of s 409(1) of the Code.[185]

1. 'Deceit' means to induce a person to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. 'Any fraudulent means' encompasses other conduct falling outside the scope of 'deceit' which can properly be stigmatised as dishonest.[186]

Third element: causes any person to gain a benefit

1. The State must prove that a person gained a benefit and that the benefit was gained by deceit or any fraudulent means.
2. This requires the State to prove that the deceit or fraudulent means employed by the accused was a factual and legal cause of the person gaining the relevant benefit. Factual causation, at least ordinarily, means that the deceit or fraudulent means were a necessary condition for the gaining of the benefit by the relevant person. That is, the State must, at least ordinarily, prove that the person would not have gained the relevant benefit but for the deceit or fraudulent means. Legal causation means that the deceit or fraudulent means substantially or significantly contributed to the person gaining the relevant benefit. It is not necessary for the State to prove that the deceit or fraudulent means was the sole cause of the person gaining the relevant benefit.[187]

1. The trial judge directed the jury that, to prove the fraud offence charged in count 2, the State had to prove the following three elements beyond reasonable doubt:[188]
   1. The appellant had an intention to defraud the YNP Trust.
   2. With that intent, the appellant engaged in deceit or employed fraudulent means.
   3. With that intent, and by that deceit or fraudulent means, the appellant gained a benefit, being the loan agreement for Fawrkt.

Directions as to first element: intent to defraud

1. The trial judge directed the jury that the first element was a subjective element that required the jury to make a finding as to the appellant's subjective state of mind. His Honour directed that whether the appellant's state of mind was reasonable or not was irrelevant, and negligence or carelessness was not sufficient. The trial judge directed the jury that:[189]

An intention to defraud includes an intention to deprive a person of something that is of actual or potential economic value by dishonest means. And the question of whether the means are dishonest is to be, again, decided by the standards of ordinary, decent people.

1. The trial judge directed the jury that the identity of the person defrauded is not an element of the offence which the State had to prove. His Honour directed that the defence of honest claim of right did not arise because an intention to defraud is an element of the offence charged. However, an honest claim of right to the property in issue could negative an intent to defraud and was still relevant. If there was an honest claim of right, there could not be any intention to defraud, and a person can have an honest belief with respect to property, even if dishonest means were used to access the property.[190]
2. The judge gave the jury a Liberato direction[191] in relation to the appellant's evidence as to his intention. His Honour also directed that the State had to prove that the only rational and reasonable inference was that the appellant had an intent to defraud.[192]

Directions as to second element: deceit or any fraudulent means

1. As to the second element of the offence charged in count 2, the trial judge directed the jury that:[193]

Deceit requires that [the appellant] engaged in conduct that induced a person to believe something to be true, which is in fact false, and to have done so knowing or believing that the thing was false. The identity of the person deceived is not an element of the offence that the State has to prove. Any fraudulent means encompasses other conduct falling outside of the scope of deceit and which can be properly stigmatised as dishonest. Again, the question of whether conduct is dishonest is to be decided by the standards of ordinary, decent people, and it includes [an] act of concealment of the true state of affairs.

Directions as to third element: causes any person to gain a benefit

1. The trial judge gave the following directions as to the third element of the fraud offence charged in count 2:[194]

The third element is that with an intention to defraud by the deceit or fraudulent means, the accused gained a benefit and in this case the State position or State case is that [Fawrkt] gained a benefit and the State position is that [Fawrkt] was [the appellant's] company.

1. The trial judge noted that the appellant accepted that Fawrkt gained a benefit but his position was that Fawrkt was an investment vehicle and the benefit was the YNP Trust's benefit and not his benefit. The trial judge then continued his direction as to the third element:[195]

The accused's deceit or fraudulent means must, in fact, have gained a benefit for another person which includes a corporate person ‑ in this case, it was alleged that it was [Fawrkt]. To establish legal causation, an accused's deceit or fraudulent act must be a substantial or significant cause of the detriment.

1. The appellant contends that the prosecution case in relation to count 2 was that the benefit gained for Fawrkt was the 26 June 2013 loan agreement, and that the fraudulent means used was the signing of the loan agreement itself. The prosecutor, in his closing submissions, did not contend that the appellant used deceit to gain the benefit of the 26 June 2013 loan agreement for Fawrkt.[196]
2. The appellant says that the prosecutor did not explain how or why the act of signing the loan agreement amounted to fraudulent means or identify the appellant's alleged state of mind that rendered that act fraudulent. Rather, the prosecutor had submitted that 'the loan agreement was a sham that was intended to disguise theft from the trust as loans'.[197]
3. The appellant says that the trial judge did not give the jury any directions that would have assisted them to identify:[198]

(a) the signing of the loan agreement as the act that the State relied on to constitute 'fraudulent means'; or

(b) the knowledge, belief or intent that the State relied on to characterise those means as fraudulent.

1. The appellant contends that there was a palpable risk that the jury would be left with the erroneous impression that the appellant would be guilty of count 2 if the 26 June 2013 loan agreement was a 'sham'. In these circumstances, a miscarriage of justice arose from the trial judge's failure to inform the jury of the issues of fact they had to determine and relate those issues to the directions of law.[199]

1. In our view, the appellant's submissions should be accepted. The trial judge's directions identified, in a generic way, the elements of the fraud offence. However, his Honour did not explain to the jury how that law was to be applied to the facts of this particular case. Given the nature of the charge and the way in which the trial was run, it was incumbent upon the trial judge to do so in order to ensure a fair trial.
2. Section 112 of the Criminal Procedure Act 2004 (WA) required the trial judge to 'instruct the jury on the law applicable to the case'. The requirement to 'instruct' the jury is not discharged by an explanation of the law given in general terms, which leaves it to the jury to apply that law to the case before them. Rather, the requirement is for the judge to identify the real issues in the case and the facts that are relevant to those issues and provide an explanation of how the law applies to those facts.[200]
3. In the present case, it was necessary for the trial judge to identify the factual issues to which his Honour's general statement of the law was to be applied. That included identifying the act that the State relied on as constituting deceit or fraudulent means and the aspect of his Honour's general directions which related to that act.
4. The act that the prosecutor identified as the offending conduct was the signing of the 26 June 2013 loan agreement, which was said to constitute fraudulent means but not deceit. The judge should have identified that act and directed the jury that the question they needed to address in considering the second element of the fraud offence was whether the act of the appellant signing the 26 June 2013 loan agreement was dishonest, so as to constitute fraudulent means.
5. The trial judge's direction at [162] above did not properly focus the jury's attention on this issue. The direction about what needed to be shown to establish that the appellant engaged in deceit was at best superfluous, given that the State did not allege that he had engaged in deceit. The direction in relation to fraudulent means simply refers to 'other conduct'.
6. The judge should also have directed that the question the jury needed to address in considering the third element of the offence was whether the appellant's act of signing the 26 June 2013 loan agreement caused Fawrkt to gain the pleaded benefit of the loan agreement. This would require the jury to ask whether the signing of the agreement was a necessary condition for Fawrkt to have gained the benefit, and whether the signing of the agreement substantially or significantly contributed to Fawrkt gaining the benefit.
7. Rather confusingly, the trial judge's direction at [164] above directed the jury in relation to legal causation of a 'detriment'.
8. Further directions were required, particularly given the way the prosecutor put the State's case, described at [81] ‑ [85] above, by contending that the 26 June 2013 loan agreement was:
   1. a 'sham';
   2. not a 'real contract';
   3. a 'bogus loan agreement';
   4. a 'fraudulent document';
   5. not a 'prudent or commercial contract';
   6. not 'intended to be enforceable'; and
   7. a document with an obvious 'bias in favour of the borrower'.
9. There is a perceptible risk that the jury would understand that the State would have proved the second and third elements of the fraud offence if one or more of these pejorative terms or phrases could be applied to the 26 June 2013 loan agreement. A direction was required to address that perceptible risk of a miscarriage of justice in three respects.
10. First, the epithets that the prosecutor sought to apply to the 26 June 2013 loan agreement were all concerned with the content and legal effect of the agreement itself, rather than why the act of signing the agreement was dishonest. The jury's attention needed to be directed to why the State said that the act of signing the agreement was dishonest, and the need to find that that act of signing involved the use of fraudulent means to gain the pleaded benefit for Fawrkt. It might have been that the State contended that signing an agreement which the appellant knew had certain features, or that he knew he had no authority to enter, was a dishonest act constituting fraudulent means. However, this was never made clear in the State's submissions. It was, in these circumstances, necessary for the judge to direct the jury that the dishonesty that they must find, before finding the appellant guilty of count 2, was dishonesty in the act of signing of the 26 June 2013 loan agreement.
11. Second, the prosecutor's contentions about the content of the 26 June 2013 loan agreement raised legal issues that required direction by the trial judge in at least the following respects.
12. It is not clear what the prosecutor meant when he referred to the 26 June 2013 loan agreement having the attributes referred to at [176] above.
13. Terms such as 'sham', not a 'real contract' and 'bogus' could be taken by the jury to mean that the 26 June 2013 loan agreement did not actually operate to create any enforceable legal obligation of Fawrkt to repay loan funds to the Trustee of the YNP Trust on the terms contained in the loan agreement. However, there does not appear to us to be any legal basis for making that contention, which was disclaimed by Senior Counsel for the State on appeal.[201] Given the submissions that had been advanced by the prosecutor, the trial judge should have directed the jury that, as a matter of law, the 26 June 2013 loan agreement did operate to create legal obligations on Fawrkt to the Trustee of the YNP Trust on the terms contained in that agreement. The trial judge should have directed the jury that they could not find the act of signing the 26 June 2013 loan agreement to constitute fraudulent means on the basis that the agreement created no enforceable obligations at all.
14. Another aspect of the prosecution case was a contention that Fawrkt's obligation to repay any of the loan funds would only arise on the terms of the loan agreement if the Freemasons Hotel made a profit. The appellant's trial counsel denied that the agreement had this effect (see [87] above). This dispute raised a legal question as to the proper construction of a commercial contract.
15. That legal dispute as to the proper construction of the 26 June 2013 loan agreement must be resolved applying well‑established general principles of contractual construction. Those principles were summarised by this court in Black Box Control Pty Ltd v Terravision Pty Ltd,[202] and include the following:

(1) The process of construction is objective. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean.

(2) The construction of a contract involves determination of the meaning of the words of the contract by reference to its text, context and purpose.

(3) The commercial purpose or objects sought to be secured by the contract will often be apparent from a consideration of the provisions of the contract read as a whole.

...

(9) An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ.

(10) An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation. (footnotes omitted)

1. In our view, having regard to the above principles and the terms of the 26 June 2013 loan agreement considered as a whole, the agreement does not allow Fawrkt to avoid any repayment obligation at all if the Freemasons Hotel did not make a profit during the term of the loan agreement. The better view appears to us to be that the provision for payment of instalments from profit of business operations in cl 2.3 concerns only the 'Loan', as defined in cl 1.1, rather than the interest on the Loan provided for in cl 1.1 and cl 4.1 of the loan agreement. It qualifies Fawrkt's obligation in cl 2.1 to repay all moneys lent to it on the occurrence of one of the events specified in cl 2.1.1 ‑ cl 2.1.5 of the loan agreement (see [42] ‑ [44] above) by introducing a requirement to repay the principal by instalments during the term of the Loan where the business makes a profit. It does not mean that the Loan is not repayable on the occurrence of one of the events specified in cl 2.1.1 ‑ cl 2.1.5 of the loan agreement if the business has not made a profit during the term of the Loan. In our view, a reasonable businessperson would not understand the terms of the agreement to provide for what would in effect be a gift to Fawrkt in the event that the business did not make a profit during the loan term.
2. The proper construction of the 26 June 2013 loan agreement was not the subject of any detailed submissions on appeal, and it is unnecessary to reach any final concluded view in relation to that question. The present point is that the jury should not have been left to resolve the dispute as to the operation of the 26 June 2013 loan agreement without any directions from the trial judge. The proper construction of a legal instrument, such as the 26 June 2013 loan agreement, is a matter of law for the trial judge rather than a question of fact for the jury.[203]
3. Another aspect of the prosecution case was that the 26 June 2013 loan agreement was not a 'prudent or commercial contract' and had an obvious 'bias in favour of the borrower'. However, the appellant would not use fraudulent means merely because he signed a commercially imprudent contract. The jury should have been directed accordingly.
4. Third, it was important that the jury's focus be on the pleaded benefit to Fawrkt. The prosecutor's submissions to the effect that the 26 June 2013 loan agreement was a sham that was intended to disguise theft from the YNP Trust as loans were directed to the benefit of the money transferred under the loan agreement. The pleaded benefit was the 26 June 2013 loan agreement itself, and not the funds that might be advanced under the loan agreement. Again, the jury should have been directed accordingly.
5. For all of the above reasons, in our view this ground of appeal is established. The respondent's submissions, which are directed to the question of whether the jury might have thought that an intention to defraud was not a separate element of the offence,[204] do not provide a basis for rejecting ground 3.

Orders in relation to fraud offence charged in count 2

1. A miscarriage of justice arising from the trial judge's directions in relation to the fraud offence charged in count 2 of the indictment has been established. It cannot be said that no substantial miscarriage of justice has occurred. In these circumstances, s 30 of the Criminal Appeals Act 2004 (WA) requires this court to allow the appellant's appeal against his conviction on count 2, set aside the conviction and either order a new trial or enter a judgment of acquittal on that count.
2. While ordinarily a new trial would be the appropriate order, in the circumstances of the present case we would enter a judgment of acquittal on count 2. In our view, count 2 as it was prosecuted at trial was fundamentally misconceived. That is because the benefit alleged and the fraudulent means by which that benefit was gained were in substance the same thing. The benefit was the 26 June 2013 loan agreement, while the alleged fraudulent means was the appellant's signing of the loan agreement. Obviously, there would have been no loan agreement if it had not been signed. But the signing of the agreement was the act which brought it into existence. In our view, the mere acquisition of a benefit cannot constitute the fraudulent means by which a benefit was gained within the meaning of s 409(1)(c) of the Code.
3. It might be possible to reformulate a case which alleges that the appellant's execution of the 26 June 2013 loan agreement, knowing that he was not authorised to do so as Trustee for the YNP Trust, was the fraudulent means by which he gained a benefit for Fawrkt in the provision of loan funds. On that reformulated case, the intent to defraud might be alleged as an intention to dishonestly obtain those funds for Fawrkt when the appellant knew that Fawrkt was not entitled to them and the provision of the funds to Fawrkt would be in breach of trust. However, that case (which in any event would substantially overlap with the stealing charges) was not run at trial. We would not order a new trial on count 2 to enable the State to put a case that is materially and significantly different from the case advanced at the original trial.

Ground 4: directions as to the elements of the stealing charges

1. We turn next to consider ground 4 of the appeal, which contends that the trial judge's directions in relation to the stealing offences charged in counts 1 and 3 - 34 were inadequate and occasioned a miscarriage of justice.

1. The offence of stealing is created by s 378 of the Code, which relevantly provides that:

Any person who steals anything capable of being stolen is guilty of a crime[.]

1. Stealing is defined by s 371(1) of the Code in the following terms:

A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.

1. Section 371(2) provides for the way in which a fraudulent taking or conversion may be established. Relevantly for the present case it provides:

A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say -

(a) An intent to permanently deprive the owner of the thing or property of it or any part of it;

(f) In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.

1. Section 371(3) of the Code provides that the taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment. Section 371(4) provides:

In the case of conversion, it is immaterial whether the property converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession, control or management of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property.

1. Section 371(6) provides that the act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
2. 'Property' is defined in s 371(7) of the Code to include money, debts and bank credits.

Stealing and conversion of bank credits by a trustee

1. Section 371 of the Code defines two broad kinds of stealing offences: fraudulent taking and fraudulent conversion. Fraudulent taking involves taking a thing which is capable of being stolen. Fraudulent conversion involves converting any property to the use of the accused or any other person. A person converts property for these purposes if he or she deals with that property in a way that is inconsistent with the rights of the owner of the property.[205]
2. In the present case, the relevant property alleged to have been stolen was funds standing in credit to the appellant, as Trustee of the YNP Trust, in the YNP Trust Account. Those funds constituted a chose in action, being the debt owed by the bank to the appellant as Trustee of the YNP Trust. That chose in action was property which could be stolen by the appellant dealing with the funds inconsistently with the rights of the Beneficiaries of the YNP Trust. The offence would be committed by the appellant doing a physical act which converted the funds to the use of the appellant or Fawrkt with an intent to use the funds at his will.
3. The offences alleged in the present case were of fraudulent conversion rather than fraudulent taking. There were no physical objects such as cash that were taken or moved by anyone.
4. The decision of this court, in Kingdon v The State of Western Australia,[206] establishes that the offence of stealing under s 378 of the Code will be committed by a trustee who deals with bank credits held on trust by the trustee in a manner that is inconsistent with the rights of the beneficiaries and with an intention to permanently deprive the beneficiaries of those rights, or to use the bank credits for his or her own purposes.
5. In the present case, the rights of the Beneficiaries of the YNP Trust were established by the YNP Trust Deed. In order to prove that the appellant converted funds standing to the credit of the YNP Trust Account, the State needed to prove that the funds were dealt with inconsistently with the requirements imposed on the appellant by the YNP Trust Deed. There was, for example, no conversion of funds involved in the appellant making distributions of funds to Beneficiaries in accordance with the YNP Trust Deed (as permitted by cl 6.2(b) of the YNP Trust Deed) or transferring money in payment of the Trustee's reasonable professional costs and charges for trust activity expenses (as permitted by cl 5.7 of the YNP Trust Deed).

Significance of ownership of the appellant's share in Fawrkt

1. A critical question in the present case was whether the appellant held the sole share in Fawrkt on trust for the Beneficiaries of the YNP Trust under the terms of the YNP Trust Deed. We turn to explain why that is a critical question.
2. On the uncontroversial facts of the present case, the following matters were clearly established:
   1. At all material times after December 2013, West Harbour held the assets of the Freemasons Hotel business, including the lease of the building and funds standing to the credit of the West Harbour Account, on trust for Fawrkt, as Fawrkt was the holder of all units in the West Harbour Unit Trust.
   2. West Harbour, as trustee of the West Harbour Unit Trust, was liable under obligations incurred in its operation of the Freemasons Hotel business and had a right to be indemnified against those liabilities from the assets of the West Harbour Unit Trust.
   3. Fawrkt was not a trustee and held its assets, including the units in the West Harbour Unit Trust and funds standing to the credit of the Fawrkt account, for its own benefit. (This statement would need to be qualified if Fawrkt had charged the units in the West Harbour Unit Trust with the performance of its obligations under the 26 June 2013 loan agreement. However, there is no evidence that provision of units as security, contemplated by cl 7.1 of the 26 June 2013 loan agreement, ever actually occurred.)
   4. The appellant held funds standing to the credit of the YNP Trust Account on trust under the terms of the YNP Trust Deed.
3. The contentious matter at trial was whether the appellant held the sole issued share in Fawrkt as Trustee of the YNP Trust. That question was critical in the present case because a transfer, by way of loan, of Trust Funds to a company controlled by the appellant, in which he beneficially held the only share, would contravene cl 3.3 of the YNP Trust Deed. To do so would be to apply part of the YNP Trust fund for the benefit of the Trustee. On the other hand, if the appellant held the share in Fawrkt as an asset forming part of the YNP Trust fund, then the transfer of funds to Fawrkt would not have been to the appellant's personal benefit. If Fawrkt was the corporate vehicle by which the appellant, as Trustee of the YNP Trust, chose to invest Trust Funds in the West Harbour Unit Trust then the State could not prove that the transfer was not an investment of Trust Funds authorised by cl 6.2(b) of the YNP Trust Deed.
4. Therefore, to establish any of the stealing offences charged in the indictment, the State had to prove, beyond reasonable doubt, that, at the time of the alleged stealing, the appellant did not hold the share in Fawrkt on trust under the terms of the YNP Trust Deed. That was an intermediate fact essential to establishing the funds to have been transferred inconsistently with the rights of the Beneficiaries under the YNP Trust Deed so as to constitute a conversion of those funds to the use of the appellant or Fawrkt.

Determining whether the share in Fawrkt was held on trust

1. A trust is an obligation, enforceable in equity, imposed on a person (the trustee) to hold or deal with property for the benefit of another person (the beneficiary) or a permitted purpose.[207] A trust is created when a person (the settlor) manifests a clear intention to create a trust over specific property for sufficiently identifiable beneficiaries or permitted purposes.[208]
2. The question of intention is objective. That is, the question is whether the relevant words and conduct would, in all the circumstances, convey an intention to create a trust to a reasonable person. A person's subjective understanding of what he or she is doing is irrelevant to the question of whether an express trust has been created over property.[209]
3. In the absence of any clear declaration that property is held on trust, a dispute as to the presence of the necessary intention is resolved by reference to the outward manifestation of the intention of the parties in all the circumstances.[210]
4. The need for an objectively manifested intention remains when the question is whether property is made subject to a pre-existing express trust. In such a case, the question is whether the person manifested an intention that the property would be held under the terms of the existing trust. The presence of the pre-existing trust is one of the circumstances to be taken into account when determining whether the intention that the property be held on trust has been manifested. But it remains to consider all of the circumstances to determine whether the words and conduct of the person would, in all the circumstances, convey to a reasonable person an intention that the property be held under the terms of the existing trust.[211]
5. The appellant's case at trial was that a trust over the share in Fawrkt was created in 2010, and that the appellant held the share on trust from that time. If the appellant did not manifest an intention to hold the Fawrkt share on trust in 2010, there is no evidence suggesting any subsequent manifestation, up to the date of the final transfer on 9 March 2017, of the intention to hold the share, to that point held by the appellant beneficially, on trust under the terms of the YNP Trust Deed.
6. Therefore, whether the appellant held the share in Fawrkt on trust under the terms of the YNP Trust Deed depends on whether his words and conduct in 2010 would, in all then prevailing circumstances, convey to a reasonable person an intention that the share be held under the terms of the YNP Trust Deed.
7. For the State to prove that the appellant converted the funds in the YNP Trust Account, it needed to prove that the appellant dealt with those funds inconsistently with the rights of the Beneficiaries under the YNP Trust Deed. In the particular circumstances of the present case, this required the State to prove that the appellant did not hold the Fawrkt share on trust under the terms of the YNP Trust Deed. Proof that the appellant converted the funds therefore turned on the State proving, beyond reasonable doubt, that the appellant's words and conduct in 2010, considered as a whole, would not, in all then prevailing circumstances, convey to a reasonable person an intention that the share in Fawrkt be held under the terms of the YNP Trust Deed.
8. At the hearing of the appeal, the written and oral submissions of the parties had not focussed on the proper test for determining whether the Fawrkt share was held by the appellant on trust. The court subsequently provided the parties with its provisional view in substantively the above terms and invited submissions as to the proper test and its significance for the grounds of appeal. Neither party took any issue with the above statement of principle.[212]

Significance of the appellant's subjective state of mind

1. As we have explained, the appellant's subjective understanding as to whether or not he held the Fawrkt share on trust was irrelevant to the question of whether he actually held that share on trust. However, the appellant's subjective understanding was not irrelevant to his criminal liability.
2. There were two matters relating to the appellant's subjective state of mind that the State had to prove, beyond reasonable doubt, to establish the stealing offences. First, the State had to prove that, at the time he converted the funds, the appellant intended to use the money at his own will. This was the element of intention provided for by s 371(2)(f) of the Code. Second, the State had to prove that, at that time, the appellant did not transfer the money honestly believing that he had the right to do so without an intention to defraud. This was required to negate the defence of honest claim of right, provided for in the second paragraph of s 22 of the Code, in the circumstances of this case.[213] In considering whether the State could prove those matters, the jury could take account of any honest belief by the appellant that he held the share in Fawrkt as part of the YNP Trust fund.

1. Having regard to the above matters, the jury could only find the appellant guilty of a charged stealing offence if the State proved each of the following facts beyond reasonable doubt:
   1. The appellant caused the funds referred to in the relevant count to be transferred from the YNP Trust Account to the Fawrkt Account.
   2. The transfer was inconsistent with the rights of the Beneficiaries under the YNP Trust Deed. To establish this, the State had to prove, beyond reasonable doubt, that the appellant's words and conduct in 2010, considered as a whole, would not, in all then prevailing circumstances, convey to a reasonable person an intention that the share in Fawrkt be held under the terms of the YNP Trust Deed.
   3. At the time of the transfer, the appellant intended to use the transferred funds, or some of those funds, at his own will (ie, for his own purposes and not the purposes of the YNP Trust).
   4. At the time of the transfer, the appellant did not honestly believe that he was entitled to transfer the funds to Fawrkt under the terms of the YNP Trust Deed.
2. The State had to prove the first and second matters referred to in the previous paragraph to establish that the appellant converted the funds the subject of each charge in the circumstances of this case. The State had to prove the third matter to establish that the appellant converted the funds fraudulently in the circumstances of this case. The State had to prove the fourth matter to establish that the appellant was not acting under an honest claim of right.

Trial judge's directions as to the elements of the stealing offences

1. The trial judge gave the following directions to the jury as to the elements of the charged stealing offences.
2. The trial judge directed the jury that a person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or property. The trial judge directed the jury that, on the present facts, the State had to prove three elements beyond reasonable doubt:[214]
   1. The money identified in a particular count in the indictment was the property of the YNP Trust.
   2. The appellant took the money.
   3. The appellant took the money fraudulently.
3. The trial judge gave the jury the following direction in relation to the first element:[215]

[E]very inanimate thing ‑ whatever it is ‑ which is the property of any person and which is moveable is capable of being stolen. As a matter of law, a bank credit in a bank account is property capable of being stolen.

1. The trial judge gave the jury the following directions as to the second element:[216]

[T]he act of stealing is not complete until the person taking or converting the thing actually moves it or actually deals with it by way of some physical act.

It is not necessary to prove that the taking was without the consent of the trust. In each case the particular movement alleged are the transfers which the State says took place, and the transfers themselves do not appear to be in any issue in this case, given the evidence that [the appellant] gave that he made the transfers but the transfers were for the trust, not for him. But it's something that the State must prove.

The State must prove that the transfers took place against the evidence that you heard in relation to that and hence the exhibits that you will have available to you in relation to those transfers.

1. The trial judge gave the jury the following directions as to the third element:[217]

[I]n order for a taking or a conversion to be deemed to be fraudulent and to constitute stealing, the state of mind of the accused, which the State alleges and which the State must prove beyond reasonable doubt is in the case of money an intent to use it at the will of the person who took it or converted it even though he may intend afterwards to repay the amount to the owner.

As I've already directed you, members of the jury, the property constituted by fund[s] in a bank account constitutes money and to use money at your own will is to use money as your own. And the State case in relation to the transfers is that [the appellant] had an intent to use it at his will.

1. The trial judge gave the jury a Liberato direction in relation to the appellant's evidence as to his intention. The judge directed that the State had to prove that the only rational and reasonable inference was that the appellant had an intent to defraud.[218]
2. The trial judge also directed the jury that the State additionally had to prove that the appellant did not do the relevant act in the exercise of an honest claim of right or that the appellant did not do the act without an intention to defraud. The judge in effect directed the jury that the State had to prove that the appellant did not honestly believe that he was entitled to make investments on behalf of the YNP Trust and that he did not honestly believe that the transfers of money were done by him to obtain and maintain an asset that belonged to the YNP Trust.[219]

1. The appellant contends that the trial judge's directions were inadequate for the following reasons:[220]
   1. The trial judge directed the jury that the prosecution case was that the appellant had 'taken' the money the subject of the relevant counts on the indictment, when the prosecution case was that the appellant had fraudulently converted the money.
   2. The trial judge did not give the jury any or any sufficient directions to enable them to properly understand what the prosecution had to prove in order for them to be satisfied beyond reasonable doubt that the appellant had fraudulently converted the money the subject of the counts in the indictment.
   3. The trial judge did not give the jury any or any sufficient directions to enable them to properly decide whether the appellant was guilty of count 34 on the indictment.

1. In our view, the appellant's contentions as to the inadequacies of the direction are correct and those deficiencies gave rise to a miscarriage of justice.
2. The prosecutor often referred to a taking or conversion of the funds in the YNP Trust Account. However, those funds, as a chose in action, were not a physical thing which could be moved or 'taken' within the meaning of s 371 of the Code. Rather, the State's case could only be one of conversion of the funds.
3. We do not accept the State's submission that the distinction between a taking and conversion was irrelevant in the present case.[221] It is true that the jury would have understood the references to the appellant taking the money as being references to his causing the funds to be transferred from the YNP Trust Account to the Fawrkt Account. The jury would not have been confused as to the physical act that the prosecution had to prove. However, to prove a conversion it was not sufficient for the State merely to prove that the appellant caused the funds to be transferred.
4. To establish conversion, the State had to prove that the transfer of the funds from the YNP Trust Account involved dealing with the funds in a way that was inconsistent with the rights of the Beneficiaries under the YNP Trust Deed. As explained above at [214], that involved proving that the appellant's words and conduct in 2010, considered as a whole, would not, in all then prevailing circumstances, convey to a reasonable person an intention that the share in Fawrkt be held under the terms of the YNP Trust Deed. This would not have been apparent to the jury from the directions about 'taking' money.
5. The need for an explanation as to what the State was required to prove to establish that the appellant converted funds from the YNP Trust Account was heightened by the prosecutor's continued references to the Freemasons Hotel being the appellant's 'own business'. That was, in our view, an oversimplification of the position for which the State contended.
6. On any view of the evidence, the appellant never held any legal or equitable interest in the Freemasons Hotel business. Both West Harbour and Fawrkt were legal entities separate from the appellant, even though he controlled them by holding offices of sole director and secretary of those companies. West Harbour held the legal title to the assets of the Freemasons Hotel business on trust for Fawrkt, as the holder of all units in the West Harbour Unit Trust. Fawrkt held a beneficial interest in those assets under the terms of the West Harbour Unit Trust. But Fawrkt was not a trustee. The fact that the appellant held the only share in Fawrkt (if the share was held beneficially) would have entitled him to receive any dividends declared by Fawrkt from distributions made from the West Harbour Unit Trust. But his shareholding did not give the appellant any legal or equitable interest in the Freemasons Hotel business.
7. Contrary to the suggestion in the State's submissions,[222] these fundamental elements of company law and trust law cannot be dismissed as inconvenient legalistic technicalities. They provide the legal framework in which the legal effect of the transfers of funds from the YNP Trust Account must be assessed. Proving that the transfers constituted a conversion of the funds involved proving that the transfers were inconsistent with the rights of the Beneficiaries under the YNP Trust Deed. In the circumstances of this case, the State was required to prove that the appellant did not hold the Fawrkt share on trust for the Beneficiaries under the terms of the YNP Trust Deed. It was incumbent on the trial judge to explain to the jury what the State needed to establish in order to prove the appellant converted the funds. The absence of any direction about this matter constituted a miscarriage of justice.
8. In supplementary written submissions,[223] the State relied on directions given by the trial judge in relation to the drawing of inferences as to the appellant's state of mind.[224] However, these directions were not a substitute for proper directions as to what the State had to prove to establish a conversion of the funds, to which the appellant's subjective state of mind was irrelevant.
9. The State also submits that the appellant's evidence at trial, even if it had been accepted, was insufficient to raise the reasonable possibility that he had manifested a clear intention that the Fawrkt share was held on trust.[225] We do not accept that submission. The execution panels on the 2010 loan agreements and the appellant's account of what he had told the Advisory Committee were capable of establishing that the Fawrkt share was held on trust. As discussed below in considering ground 5, whether the evidence excluded that as a reasonable possibility was a question for the jury. The jury should have been, and were not, directed in a way that allowed the jurors to properly consider that question.
10. We also agree with the appellant's submission that a particular direction was required in relation to count 34 on the indictment, which concerned the transfer of about $1.4 million from the YNP Trust Account to the Fawrkt Account on 9 March 2017.[226] The jury should have been directed that it was this transaction, rather than the subsequent transfers of funds from the Fawrkt Account (see [56] and [58] above), which constituted the alleged fraudulent conversion. The State needed to prove that the appellant intended to use the transferred funds, or part of them, at his own will at the time of causing the transfer of the $1.4 million on 9 March 2017. Evidence of subsequent dealings with the funds transferred into the Fawrkt Account might throw light on the appellant's intention at the time of the transfer on 9 March 2017. But the question for the jury was whether the only reasonable inference open on the evidence considered as a whole was that the appellant intended to use the $1.4 million transferred to the Fawrkt Account on 9 March 2017 at his own will at the time he caused that transfer to be made. That needed to be made clear by a direction from the judge to the jury.
11. In our view, the absence of any adequate directions as to what the State had to establish in order to prove the stealing offences constituted a miscarriage of justice in relation to all of counts 1 and 3 ‑ 34 on the indictment. For all of the above reasons, in our view ground 4 of the appeal is established.

Grounds 2 and 5: execution panel on 2010 loan agreements

1. Our conclusions in relation to grounds 3 and 4 mean that it is unnecessary to resolve ground 2. Ground 2 contends that a miscarriage of justice arose because evidence of the execution panels of the loan agreements dated 10 March 2010 and 17 June 2010 (2010 loan agreements), reproduced at [25] and [32] above, was never drawn to the jury's attention. It will be for defence counsel, at any retrial of the stealing counts, to make what he or she will of that fact in submissions to the jury.
2. However, it is necessary to deal with ground 5, which contends that the verdicts of guilty were unreasonable or cannot be supported by the evidence. The basis for that contention is that, having regard to those execution panels, it was not open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. If that ground of appeal were established, then the appropriate order on appeal would be to substitute judgments of acquittal rather than order a retrial.
3. The general principles governing an appeal on the ground of unreasonable verdict delivered by a jury, derived from the decision of the High Court of Australia in M v The Queen,[227] are well established. In summary:[228]
   1. The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
   2. The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
   3. That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
   4. In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
   5. A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
   6. If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
   7. The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.

1. The particulars to ground 5 contend that, in the light of the way in which the prosecution case was presented to the jury it was necessary for the jury to be satisfied beyond reasonable doubt that:
   1. Fawrkt was an entity that had been created for, and at the relevant time was being operated for, the appellant's personal benefit; and
   2. Fawrkt was not controlled by and for the benefit of the YNP Trust.

The appellant contends that, having regard to the form of the execution panels in the 2010 loan agreements, it was not open to the jury to be satisfied beyond reasonable doubt of these matters.

1. The appellant says that it is significant that the 2010 loan agreements were entered into three years before the first transfer of funds, which is the subject of count 1 on the indictment. The 2010 loan agreements are said to unambiguously demonstrate that, at or about the time the Freemasons Hotel was acquired, the appellant signed the 2010 loan agreements as Trustee of the YNP Trust as director of Fawrkt. The appellant contends that this supports his case that he was acting as director of Fawrkt in his capacity as Trustee of the YNP Trust. That is said to indicate that, contrary to the prosecution case, Fawrkt was not the appellant's own company, and the Freemasons Hotel was not his own business.[229]
2. The appellant says that, had the jury been alerted to the execution panels, it must have acquitted the appellant of all counts on the indictment. He contends that none of the other matters referred to by the prosecution - the ASIC records, the use of family members' initials in the company name, the use of the appellant's own money to fund the purchase and operation of the Freemasons Hotel or the failure to inform other unit holders of any interest of the YNP Trust - can overcome the direct evidence of the execution panels.[230]
3. The appellant says that, in circumstances where the prosecution did not allege that the execution panels on the 2010 loan agreements were designed to create a false picture, it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The appellant therefore contends that ground 5 should be allowed and verdicts of not guilty should be substituted.[231]

1. In our view, the appellant's focus on the execution panels of the 2010 loan agreements is too narrow. The task for this court is to consider the whole of the evidence for itself and determine whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which the court cannot assuage by having regard to the advantages the trial court can be taken to have had by reason of having seen and heard the evidence at trial.[232]
2. We turn to consider whether the evidence at trial, considered as a whole, established, beyond reasonable doubt, each of the matters (referred to at [218] above) which the State had to prove in order to establish the appellant's guilt of the stealing charges.

Whether the appellant caused the transfer of the funds

1. There is no doubt that the appellant did cause the funds referred to in counts 1 and 3 ‑ 34 of the indictment to be transferred from the YNP Trust Account to the Fawrkt Account. The bank statements, accounting evidence and the appellant's own testimony established the fact of the transfers.

Whether the transfers were inconsistent with rights of the Beneficiaries

1. The execution panels on the 10 March 2010 loan agreement between the appellant and Fawrkt and the 17 June 2010 loan agreement between Beachcroft and Fawrkt were respectively in the following forms:

SIGNED BY Thomas Graham Greenaway as Trustee for the Yugunga‑Nya People's Trust, Director Fawrkt Pty Ltd

SIGNED BY Thomas Graham Greenaway as Trustee of Yugunga-Nya Peoples [sic] Trust as Director Fawrkt Pty Ltd[.]

1. Neither statement is an unequivocal declaration that the appellant held the share in Fawrkt on trust under the terms of the YNP Trust Deed. The statements relate to the capacity in which the appellant held office as a director of Fawrkt. Of course, the appellant did not hold the office of director of Fawrkt as Trustee of the YNP Trust. Further, Fawrkt did not exist at the time of the signing of the 10 March 2010 loan agreement. The statements do not themselves purport to create a trust in any property, although they may be premised on the existence of a trust. It is clear from the substantive terms of the 2010 loan agreements that the Trustee of the YNP Trust is not a party to either agreement.
2. In the absence of an unequivocal declaration of trust, it is necessary to consider whether there was an objective manifestation of the appellant's intention to hold the share in Fawrkt on trust under the terms of the YNP Trust Deed. This required the State to prove that the appellant's words and conduct in 2010, considered as a whole, would not, in all then prevailing circumstances, convey to a reasonable person an intention that the share in Fawrkt be held under the terms of the YNP Trust Deed.
3. The execution panels on the 2010 loan agreements were a circumstance pointing to the existence of an objectively manifested intention that the share in Fawrkt was an asset of the YNP Trust of which the appellant was Trustee. However, that is only one of the circumstances to be considered.
4. Other circumstances counting against the objective manifestation of such an intention were:
   1. The ASIC register, and the form for the registration of Fawrkt, indicated that the appellant beneficially held the share in Fawrkt.
   2. The financial statements of the YNP Trust did not record the share in Fawrkt, or any interest in Fawrkt or the Freemasons Hotel, as a trust asset.
   3. The minutes of the Advisory Committee (other than the minutes of at least doubtful authenticity referred to at [114] ‑ [115] and [137] ‑ [138] above) did not record the appellant consulting the Advisory Committee about a proposed investment in the Freemasons Hotel.
   4. The company name was made up of the initials of the appellant's family members.
   5. The appellant funded the operations of Fawrkt and the business in which Fawrkt had an interest by an interest-free unsecured loan of funds to which he, or a company he owned, had a beneficial interest, rather than using YNP Trust Funds.
5. The appellant gave evidence of other statements he made in 2010, which, if they were made, would objectively indicate an intention to hold the share in Fawrkt on trust. These included statements allegedly made to the Advisory Committee about the purchase of the Freemasons Hotel for the YNP Trust and the alleged instructions given to the appellant's accountant that Fawrkt should be established with one share held by him as Trustee of the YNP Trust (see [125] ‑ [127] above). However, this evidence of the appellant was not supported by any documentary or other evidence (other than the Advisory Committee meeting minutes of at least doubtful authenticity referred to at [114] ‑ [115] and [137] ‑ [138] above).
6. It would have been open to the jury, having seen and heard the appellant's evidence, to conclude that the appellant was not an honest witness whose evidence could be relied upon. Quite apart from the prospect that the manner in which the appellant gave his evidence may have led the jury to that view, there were aspects of the appellant's evidence that strained credulity. The appellant's account of how Fawrkt came to be named (summarised at [124] above) seems from our reading of the transcript to be an implausible contrivance and could reasonably have been so regarded by the jury. It seems very unlikely that the appellant would, himself or through Beachcroft, make an unsecured interest-free loan of over $700,000 over a period of around seven years to fund a business operated by the YNP Trust. It is also difficult to reconcile the appellant's evidence that the Freemasons Hotel was acquired and held for the purpose of training and employing Yugunga‑Nya People with his acceptance that no Yugunga-Nya People were ever trained or employed at the hotel (see [142] above).
7. Therefore, it was open to the jury to regard the appellant as a dishonest witness whose testimony should not be accepted without corroboration. On that basis, the jury could reasonably not have accepted the appellant's evidence about statements he made to others in 2010 which, if made, would manifest an intention that the Fawrkt share was held on trust. Although we would not reach that conclusion without having seen and heard the appellant give evidence, our review of the trial record tends to support that conclusion.
8. The question is then: Would the circumstances referred to at [252] and [253] above, considered together and putting aside the appellant's uncorroborated evidence of his statements in 2010, convey to a reasonable person an intention that the share in Fawrkt be held under the terms of the YNP Trust Deed? In our view, the answer to this question is 'no'. Of particular significance is the combination of the statement on the ASIC register to the effect that the appellant beneficially owns the share and the absence of any record of the share in the financial statements of the YNP Trust. Those are very strong objective indicators that the share was not intended to be an asset of the YNP Trust fund. A statement in the execution panel of a loan agreement between Fawrkt and the appellant or his company Beachcroft that the appellant is the Trustee of the YNP Trust is not a sufficient manifestation of a contrary intention in all of the circumstances.
9. Therefore, if the jury did not accept the appellant's evidence of his statements in 2010 to the Advisory Committee and his accountant, then it was open to the jury to be satisfied beyond reasonable doubt that the appellant did not hold the share in Fawrkt on trust under the terms of the YNP Trust Deed. That is the view which we would adopt on the evidence.
10. It would follow from this conclusion that the transfer of funds from the YNP Trust Account to the Fawrkt Account was inconsistent with the rights of the Beneficiaries under the YNP Trust Deed. On that basis, the evidence at trial was sufficient to prove, beyond reasonable doubt, that the transfers pleaded in counts 1 and 3 ‑ 34 of the indictment constituted a conversion of those funds by the appellant.

1. We are also of the view that the evidence at trial was sufficient to prove, beyond reasonable doubt, that at the time of each transfer charged in counts 1 and 3 ‑ 34, the appellant intended to use the transferred funds at his own will.
2. For the reasons explained at [254] ‑ [256] above, it was open to the jury to refuse to accept the appellant's evidence as to his subjective reasons for transferring the funds on credibility grounds. The question would then be whether the only reasonable inference open on the facts established by evidence that the jury did accept was that the appellant intended, at the time of making each transfer, to use the transferred funds, or some of them, at his own will.
3. Evidence other than that of the appellant was sufficient to establish that the appellant did not subjectively believe that he held the share in Fawrkt on trust or that Fawrkt was an investment vehicle for the YNP Trust. That is the only reasonable inference to be drawn in all the circumstances, including:
   1. The financial statements of the YNP Trust from 2010 ‑ 2017 did not include any reference to the Fawrkt share, or any interest in the business of the Freemasons Hotel, as an asset of the trust. It is implausible that the appellant would not have ensured the asset was included in financial statements if he truly believed it to be an asset of the trust.
   2. It was implausible that the appellant (himself or through Beachcroft) would have lent over $700,000 on an interest‑free, unsecured basis to fund the operations of the YNP Trust. Even if the limited income of the YNP Trust in 2010 might provide a reason for the appellant to advance funds at that time, the loan could have been repaid when the YNP Trust income increased significantly from 2013.
   3. By 2013, it could be seen that the Freemasons Hotel business was performing very poorly. It had consumed significant funds advanced by both the appellant and Beachcroft without any return on the investment. From November 2013 ‑ February 2014, the business was consuming an average of well over $100,000 a month in Trust Funds.[233] By the time of the resolution purporting to remove the appellant as Trustee on 9 March 2017, the appellant and Beachcroft had lent $780,348 to the business and $1,447,500[234] of YNP Trust Funds had been transferred to the business. The total amount paid to Fawrkt and advanced to the business was therefore $2,227,848 ($780,348 plus $1,447,500). The Freemasons Hotel business was consistently operating at a significant loss (see [71] above). Total before-tax losses of the business from the 2012/2013 financial year to the 2016/2017 financial year were $1,880,188.94. It seems inconceivable that, if the appellant genuinely believed that Fawrkt was a vehicle for the YNP Trust to invest in the Freemasons Hotel, he would not have discussed this dire situation with the Advisory Committee. Yet the minutes of the Advisory Committee meetings record no discussion of the losses being incurred.
   4. It is highly unlikely that the appellant would name an investment vehicle for the YNP Trust after the initials of his family members.
   5. A logical inference from the statement in the ASIC register that the appellant owned the share in Fawrkt beneficially is that the appellant instructed those submitting the company registration forms as such.
4. If the jury concluded that the appellant did not subjectively believe that Fawrkt was an asset of the YNP Trust or that the Freemasons Hotel was a trust business, it is a short step to conclude that the only reasonable inference is that the appellant must have intended to use the funds at his own will when he caused the funds to be transferred to the Fawrkt Account.
5. The same analysis applies to the transfer of about $1.4 million on 9 March 2017. A conclusion that the appellant understood that he beneficially owned the share in Fawrkt supports an inference that the appellant intended, by transferring funds to his own company, to use the funds, or at least part of them, at his own will. If the jury did not accept the appellant's evidence as to his reasons for transferring funds on 9 March 2017 on credibility grounds, the inference that the appellant intended to use the whole or at least some part of those funds at his own will was the only reasonable inference open on the evidence considered as a whole.

1. The above analysis also shows that the jury were not required to have a reasonable doubt as to whether the appellant may have had an honest claim of right. It was open to the jury to be satisfied, beyond reasonable doubt, that the appellant did not honestly believe that Fawrkt was a vehicle for YNP Trust investment in the Freemasons Hotel. The appellant admitted knowing that he would have no entitlement to transfer the funds if he was a beneficial owner of Fawrkt (see [140] above).

1. In this case, the jury had a very considerable advantage over this court in the assessment of the credibility and reliability of the appellant's evidence. In our view, the jury's advantage in seeing and hearing the appellant give evidence is capable of resolving any doubt that this court may have arising from the appellant's evidence.
2. In our view, the jury were entitled, after evaluating and weighing the prosecution evidence and defence evidence, including the appellant's denials, in the context of the trial record as a whole:
   1. to reject the appellant's denials in relation to the alleged offending; and
   2. to be satisfied beyond reasonable doubt that the evidence, considered as a whole, established each element of the stealing offences charged in the indictment and that the appellant was not acting under an honest claim of right.
3. The trial record does not support the conclusion that the jury must have entertained a doubt about the appellant's guilt of the stealing offences charged in the indictment. The verdicts of guilty were not unreasonable and were supported by evidence that the jury was entitled to accept.
4. Our review and assessment of the whole of the evidence does not leave us with a reasonable doubt as to the appellant's guilt of the stealing offences that cannot be assuaged by having regard to the jury's advantages in having seen and heard the evidence at trial.
5. For the above reasons, ground 5 is not established. It is not appropriate to enter a verdict of acquittal on the stealing charges. The appropriate order is that there be a new trial on those counts.

Ground 1: admissibility of documentary evidence

1. Given the above conclusions, it is strictly unnecessary to determine ground 1, which alleges that the trial judge made a wrong decision on a question of law in refusing to admit statements recorded in a document into evidence under s 79C of the Evidence Act 1906 (WA). However, it is appropriate for this court to deal with that ground, as the question of the admissibility of that evidence may arise on retrial.

1. Section 79C(1) of the Evidence Act relevantly provides:

Subject to subsection (2), in any proceedings where direct oral evidence of a fact ... would be admissible, any statement in a document and tending to establish the fact ... shall, on production of the document, be admissible as evidence of that fact ... if the statement -

(a) was made by a qualified person; or

(b) directly or indirectly reproduces or is derived from ...

(i) information in one or more statements, each made by a qualified person[.]

1. 'Statement' is relevantly defined in s 79B of the Evidence Act to include any representation of fact whether made in words or otherwise. 'Document' is relevantly defined to mean any record of information.
2. Section 79B relevantly defines the term 'qualified person' to mean a person who:

[H]ad, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement[.]

1. Section 79C(1) is expressly subject to s 79C(2) of the Evidence Act. Section 79C(2) provides, generally, that where a statement referred to in s 79C(1) is made by a qualified person, or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness. That general provision is subject to a number of exceptions, one of which is that the qualified person is dead (s 79C(2)(a)).
2. Section 79C(3) of the Evidence Act provides:

This section makes a statement admissible notwithstanding -

(a) the rules against hearsay; or

(b) the rules against secondary evidence of the contents of a document; or

(c) that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or

(d) that the statement is in such a form that it would not be admissible if given as oral evidence,

but does not make admissible a statement which is otherwise inadmissible.

1. Section 79C(4) limits the operation of s 79C(1), s 79C(2) and s 79C(2a) in criminal proceedings by providing that, notwithstanding those provisions:

[I]n any criminal proceedings a statement in a document which was made in the course of or for the purpose of -

(a) the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings; or

(b) an investigation which led to the discovery of facts constituting or being constituents of the alleged offence; or

(c) the preparation of a defence to a charge for any offence; or

(d) the preparation of the case of the prosecution in respect of any offence,

shall not be rendered admissible as evidence by this section.

1. Section 79C(5)(a) provides that, for the purposes of s 79C, a court may:

[F]or the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of [sic] contents of the document in which the statement is contained, or from any other circumstances[.]

1. Section 79C(6) gives the court a discretion to exclude a statement in a document from evidence, in the following terms:

For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -

(a) may necessitate undue consumption of time; or

(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.

1. Section 79C(2a) and s 79C(2b) of the Evidence Act make provision for the admission of statements in business records. Although this aspect of s 79C was the focus of much of the argument at trial, the ground of appeal is advanced by reference to s 79C(1) of the Evidence Act.
2. Under s 79D(1) of the Evidence Act:

In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by section 79C regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement[.]

Reference is then made to a number of specified matters that can be taken into account in assessing the weight to be given to evidence admitted under s 79C of the Evidence Act.

1. Section 79E of the Evidence Act relevantly provides:

Where in any proceedings a statement is admitted as evidence under section 79C but the qualified person is not called as a witness in the proceedings -

(a) any evidence -

(i) which, if that person had been so called, would have been admissible for the purpose of destroying or supporting his credibility as a witness shall be admissible for that purpose in those proceedings; or

(ii) tending to prove that, whether before or after that person made that statement, he made another statement (whether orally or in a document or otherwise) inconsistent therewith shall be admissible for the purpose of showing that he has contradicted himself,

but nothing in subparagraph (i) or (ii) shall enable evidence to be given of any matter of which, if the person in question had been called as a witness and had denied that matter in cross‑examination, evidence could not have been adduced by the cross-examining party[.]

1. By application in an appeal dated 7 July 2022, which was referred to the hearing of the appeal, the appellant seeks leave to adduce an affidavit sworn by Rodney Charles Carter as additional evidence in the appeal. Annexed to that affidavit, Mr Carter produces a proof of the evidence that he would have given had he been called as a witness at the appellant's trial. He was not called to give that evidence by reason of the trial judge's ruling, which ground 1 seeks to impugn.
2. At the hearing of the appeal, Senior Counsel for the appellant identified the parts of the proof of evidence on which the appellant sought to rely in support of ground 1.[235] Senior Counsel for the respondent objected to the admissibility of some parts of that proof.[236] Senior Counsel for the respondent also cross-examined Mr Carter on his affidavit.[237]
3. The following facts emerge from the parts of Mr Carter's evidence on which the appellant seeks to rely, having regard to the respondent's objections.
4. Mr Carter was the Program Coordinator of ISPL.[238] ISPL was appointed Trustee of the YNP Trust in April 2018 after Mr Carter was asked by a community meeting of the Yugunga‑Nya People and the Advisory Committee to take over from Bulhari.[239]
5. Mr Carter was asked by Andrew White, the Director of ISPL, to undertake an investigation into various matters including concerns about the diminution of funds of the YNP Trust since the appellant's resignation as Trustee on 10 July 2017.[240]
6. Mr Carter immediately met with the appellant in the appellant's office on 25 April 2018.[241] This was the first time Mr Carter had met the appellant. Prior to this meeting, Mr Carter was aware from his reading of a newspaper article that police had an interest in the affairs of the YNP Trust. Mr Carter was not otherwise aware of any police involvement prior to the meeting. During the meeting, which lasted about half a day, the appellant mentioned that his premises had been searched by police a few months earlier.[242]
7. Mr Carter met with Ron Shay a couple of days after his meeting with the appellant. Mr Carter knew Mr Shay from about the late 1980s. Mr Carter asked Mr Shay to tell Mr Carter about what he knew about the Freemasons Hotel. Mr Carter did not inform Mr Shay of what the appellant had told him. There was nothing said about police involvement in the affairs of the YNP Trust during this meeting.[243]
8. Mr Carter prepared a report for the YNP Trust which was tabled and discussed at an Advisory Committee meeting on 13 June 2018.[244] The report describes a meeting with the appellant on 25 April 2018 and the ownership structure of the Freemasons Hotel business in the following terms:

[T]he ownership is clearly with the YNPT through its 100% ownership of Fawrkt Pty Ltd, who in turn soley [sic] owns West Harbour Pty Ltd, who in turn soley [sic] owns West Harbour Unit Trust, who trades as the Freemasons Hotel.

1. The report then contains the following statements:

When asked why the Freemasons ownership was not widely known among YNPT and the Yugunga people, I was advised that in discussion with the then Trustee Advisory Committee (TAC) that while it was a good investment and would provide training and employment opportunities, general knowledge of ownership would create issues with members wanting free meals, alcohol and accommodation.

Verification with Ron Shay

I then met with Ron. I have known him for many years, and appreciate his standing in the community.

Ron advised his relationship with [the appellant] goes back to 2004 when he was the Settlor of the Trust.

Ron confirmed the legal structure and Freemasons Hotel acquisition was endorsed by the Trustee Advisory Committee. He also confirmed [the appellant's] reasons for not making the ownership widely known, though no minutes are available to confirm. (original emphasis)

1. At trial, Mr Carter's report was part of MFI 1, referred to at [98] above.

1. At trial, defence counsel anticipated producing documents which included Mr Carter's report under s 79C of the Evidence Act, relying on the business records aspect of that provision.[245] The prosecutor objected to the admission of the document under s 79C of the Evidence Act.[246]
2. In ruling on the objection, the trial judge indicated that the potentially admissible part of Mr Carter's report was confined to 'the purported statements from Mr Ron Shay who is deceased and obviously not able to give evidence'.[247] The judge said, in effect, that it was not clear from the statement in the report:[248]
   1. when and how Mr Shay spoke to Mr Carter;
   2. what Mr Shay knew; and
   3. what the 'legal structure' referred to by Mr Shay was.
3. The trial judge also raised a concern about whether the statement as to not wanting the ownership of the Freemasons Hotel to be widely known could be reconciled with the statement that the legal structure was endorsed by the Advisory Committee.[249] The judge then said:[250]

In my view, the document itself is too amorphous to establish anything that could probably be established. Even if I'm wrong, and I am not finding that the documents stand as a business record, or admissible otherwise under the provisions of section 79C, I would reject the application to tender the document on the basis that it's likely to ‑ and it's a higher finding than the test, which is it may create confusion or may mislead the jury. The statement is ambiguous.

It would require clarification and explanation and to admit the statement as evidence of its truth, as I understand this ‑ the basis upon which that statement, under the heading Verification of Ron Shay goes, would confuse the jury.

1. The trial judge adopted the following observation of McLure JA, in Cavill v The State of Western Australia,[251] that the preservation of the primacy of direct oral evidence on central issues in criminal cases should be preserved save in exceptional circumstances. The trial judge concluded:[252]

And I'm not satisfied, given the difficulty of establishing what that statement actually means, that this [is] in any way an exceptional circumstance and the application to tender MFI 1 is refused in whole or in part. And when I say in whole or in part, I mean the entirety of the document or part of the document.

1. Ground 1 of the appeal in effect contends that the trial judge erred in the exercise of the discretion conferred by s 79C(6) of the Evidence Act in refusing to admit the statement in Mr Carter's report into evidence by:

(a) concluding that the evidence should not be admitted due to the absence of exceptional circumstances;

(b) failing to engage with the balancing process that is required by s 79C(6), and failing to determine whether the probative value of the evidence sought to be adduced was outweighed by a consideration of the matters in s 79C(6)(b);

(c) failing to properly appreciate the probative value of the evidence;

(d) failing to properly appreciate the potential for the evidence to create undue prejudice, confuse the issues, or mislead the jury; and/or

(e) making a decision that was plainly unreasonable or unjust.

1. By notice of contention, the State seeks to uphold the trial judge's decision that the statement in Mr Carter's report was inadmissible because:

1.1. of the application of s 79C(4) of the [Evidence Act];

1.2. Mr Shay was not a 'qualified person' with respect to the statement; or

1.3. the statement was an inadmissible statement of conclusion rather than an otherwise admissible statement of fact.

1. As the questions raised by the State's notice of contention are logically anterior to a consideration of the exercise of the discretion under s 79C(6), we will deal with those issues first.

Application of s 79C(4) to statements in Mr Carter's report

1. The State submits that s 79C(4)(a) applies on the basis that the statement in Mr Carter's report was made in the course of, or for the purpose of, the investigation of facts constituting or being constituents of the alleged offence being dealt with in the criminal proceedings. The State says that Mr Carter was investigating the ownership of Fawrkt. The question of whether Fawrkt was a company held personally by the appellant or was held by him in his capacity of Trustee was directly relevant to whether there had been a fraudulent conversion of the YNP Trust Fund as charged in the indictment. The State contends that Mr Carter's investigation into the ownership of Fawrkt was therefore an investigation into a fact which constitutes, or is a constituent of, the stealing offences charged in the indictment.[253]
2. For the following reasons, we do not accept that submission.
3. A 'constituent' of an alleged offence, for the purposes of s 79C(4)(a), is a fact which is an element of an offence or defence.[254]
4. In this case, the relevant constituent of the offence of stealing was a conversion of the YNP Trust funds, constituted by the transfer of those funds from the YNP Trust Account to the Fawrkt Account inconsistently with the rights of the Beneficiaries under the YNP Trust Deed. There is nothing to indicate that Mr Carter was investigating the transfer of funds from the YNP Trust Account.
5. The question of whether the appellant owned the share in Fawrkt beneficially or held that share on trust under the terms of the YNP Trust Deed was certainly a fact relevant to the question of whether there was a conversion of funds. As we have discussed above, proof that the appellant did not hold the share in Fawrkt on trust under the terms of the YNP Trust Deed was an essential step in proving that the appellant had converted the funds. But the ownership of the share was not a fact constituting or an element of the offence of stealing or any defence to the stealing charges.
6. Mr Carter was not investigating the transfer of the funds out of the YNP Trust Account, which was the act of conversion that constituted an element of the stealing offences charged in the indictment. He was investigating the ownership of Fawrkt. The ownership of Fawrkt, while of critical relevance to whether there had been a conversion, was not itself a fact constituting or a constituent of the charged stealing offences.
7. Therefore, in our view the statement in Mr Carter's report was not made in the course of, or for the purpose of, the investigation of facts constituting or being constituents of the alleged offences being dealt with in the criminal proceedings for the purposes of s 79C(4)(a) of the Evidence Act. Section 79C(4) was not engaged in the manner contended for by the State so as to preclude the statement in Mr Carter's report being admissible under s 79C(1) of the Evidence Act.
8. That conclusion is not affected by the fact that, at the time Mr Carter conducted his investigation, a police investigation had commenced and Mr Carter, as well as the appellant and Mr Shay, were aware of a police investigation (see [118] ‑ [119] and [288] above). While Mr Carter may have been aware of a police investigation, he was not conducting that investigation and was not preparing his report for the purposes of that investigation.
9. At the hearing of the appeal there was debate as to whether the decision of the Court of Criminal Appeal in Caratti establishes that the reference in s 79C(4) to an 'investigation' is to an investigation for the purposes of, or in contemplation of, criminal proceedings.[255] Given the above conclusions, it is unnecessary to resolve that question in this appeal.

Application of s 79C(1) to statements in Mr Carter's report

1. The State also contends that the statement in Mr Carter's report is not admissible under s 79C(1) because Mr Shay was not a qualified person with respect to the statement and the statement was an inadmissible statement of conclusion. For the following reasons we do not accept that contention.
2. In determining the admissibility of a statement in a document under s 79C of the Evidence Act, the following questions may be considered:
   1. What is the relevant fact, of which direct oral evidence would be admissible?
   2. Does the statement in the document tend to establish that fact?
   3. Was the statement in the document made by a qualified person (ie a person who had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement)?
   4. If the answer to question 3 is 'no', does the statement in the document directly or indirectly reproduce, or is the statement directly or indirectly derived from, information in one or more statements, each made by a qualified person?
   5. Would the statement in the document be inadmissible for reasons other than those identified in s 79C(3)(a) ‑ s 79C(3)(d) of the Evidence Act?

Facts which oral evidence would be admissible to establish

1. The appellant identifies the following facts which the statement tends to establish:[256]
   1. Mr Shay, as a member of the [Advisory Committee], was at all relevant times aware of the legal structure of, and the fact that the Freemasons Hotel had been acquired by the Trust.
   2. Mr Shay, as a member of the [Advisory Committee], had 'endorsed' the acquisition of the Hotel by the Trust.
   3. The [Advisory Committee] had, in Mr Shay's presence, endorsed the acquisition.
   4. Other members of the [Advisory Committee] knew that the Freemasons Hotel had been acquired by the Trust.
   5. Mr Shay, as a member of the [Advisory Committee], had known that the Trust's ownership of the Hotel was not 'widely known', and of the appellant's reasons for not making it widely known.

The substance of the facts referred to at [a] ‑ [c] above was that the appellant had consulted with and obtained the recommendation of the Advisory Committee, or at least some of its members, in relation to an acquisition of an interest in the Freemasons Hotel at the time of the acquisition. It will be convenient to focus on that fact in these reasons.

1. Direct oral evidence of the appellant's consultation with the Advisory Committee, or a member of the Advisory Committee, could have been given by a person who was present at the time of the consultation. That evidence would have been relevant to prove conduct of the appellant in 2010 which might convey to a reasonable person an intention that the share in Fawrkt be held under the terms of the YNP Trust Deed. It would also be evidence of the appellant's conduct which could support a reasonable inference that he subjectively believed that he held the share in Fawrkt on trust under the terms of the YNP Trust Deed. Evidence of the fact of the appellant's consultation with the Advisory Committee would therefore have been directly relevant to proof of the facts referred to at [217] ‑ [218] above, which were critical to determination of the stealing charges.

Whether the statement in the document tends to prove the relevant fact

1. It is established that s 79C(1) applies to statements made by a qualified person (including statements tendered for the truth of their contents) recorded in a document by a third party.[257]
2. The relevant fact that the appellant sought to establish was that he had consulted with and obtained the recommendation of the Advisory Committee, or at least some of its members, in relation to an acquisition of an interest in the Freemasons Hotel at the time of the acquisition. The statement in Mr Carter's report which relates to that fact is:

Ron advised his relationship with [the appellant] goes back to 2004 when he was the Settlor of the Trust.

Ron confirmed the legal structure and Freemasons Hotel acquisition was endorsed by the Trustee Advisory Committee.

1. In our view, this statement does tend to prove that the appellant consulted with and obtained the recommendation of the Advisory Committee in relation to an acquisition of an interest in the Freemasons Hotel at the time of the acquisition. It is true that the statement does not say when the endorsement took place, but it may be taken to be implicit that it occurred at or about the time of the acquisition of the Freemasons Hotel. Although the statement quoted above does not state what the legal structure was, the statement can be read in the context of the previous part of Mr Carter's report which explains what the legal structure was (see [290] above).

Whether the statement in the document was made by a qualified person

1. In our view, the statement in Mr Carter's report was not made by a qualified person. The matters dealt with by the statement concern the appellant's consultation with the Advisory Committee at about the time of the acquisition of an interest in the Freemasons Hotel business. There is no basis for thinking that the author of the report was or might have been present when that consultation took place. The person who wrote the statement quoted at [314] above was not a person who had, or who might reasonably be supposed to have had, any personal knowledge of the matters dealt with by the statement. Mr Carter was not a 'qualified person' for the purposes of s 79C(1) and s 79B of the Evidence Act.

Whether the statement was derived from the statement of a qualified person

1. The statement quoted at [314] above is a statement of what Mr Ron Shay told Mr Carter at their meeting. As such, the statement in Mr Carter's report reproduces or is derived from information in statements made by Mr Shay.
2. We do not accept the State's submission that Mr Shay was not a qualified person. For the purposes of deciding that question, the court may, under s 79C(5)(a), draw any reasonable inference from the form or contents of Mr Carter's report or from any other circumstances.
3. The other evidence adduced at trial, including the minutes of the Advisory Committee meetings, shows that Mr Shay was a long‑standing member of the Advisory Committee. The minutes also show that he regularly attended Advisory Committee meetings from 2010 ‑ 2013 when Fawrkt acquired units in the West Harbour Unit Trust.[258] A reasonable inference to be drawn from the statement in Mr Carter's report is that Mr Shay had personal knowledge of the appellant's consultation with the Advisory Committee contained in that statement. At the very least, Mr Shay is a person who may reasonably be supposed to have had that personal knowledge at the time he made the statement reproduced or summarised in Mr Carter's report. Mr Shay was a qualified person as defined in s 79B of the Evidence Act in relation to the statement quoted at [314] above.
4. The State's submissions as to Mr Shay's status as a qualified person are generally focussed on the absence of other evidence that the appellant consulted the Advisory Committee about the Freemasons Hotel or on other evidence indicating that the appellant did not do so. In our view, that is a matter which goes to the question of whether the evidence should be accepted as correct, rather than whether the evidence is admissible. The application of s 79C(1) to a statement in a document is to be determined without any conclusion as to whether or not the correctness of the statement will be ultimately accepted, at least where it can reasonably be supposed that the maker of the statement was speaking truthfully.[259] That is so in the case of Mr Shay. Further, if the consultation with the Advisory Committee described in the statement occurred then Mr Shay may at least be reasonably supposed to have had personal knowledge of that fact. It could at least be reasonably supposed that Mr Shay was speaking truthfully.

Whether the statement is inadmissible for reasons not specified in s 79C(3)

1. We also do not accept the State's submission that the statement quoted at [314] above is inadmissible because of its conclusionary nature. The statement concerns a fact as to consultation with, and a recommendation of, the Advisory Committee, made by a person who may reasonably be supposed to have personal knowledge of those matters. Mr Shay, if he had been alive, could have given that evidence as direct oral evidence.
2. In our view, the statement quoted at [314] above is not inadmissible for any reason not identified in s 79C(3)(a) ‑ s 79C(3)(d) of the Evidence Act. The statement is not inadmissible because it is a conclusionary statement. It is unnecessary to consider whether a conclusionary statement would be 'in such a form that it would not be admissible if given as oral evidence' for the purposes of s 79C(3)(d) of the Evidence Act.

1. For the above reasons, in our view s 79C(1) of the Evidence Act applied to the statement quoted at [314] above. The statement in Mr Carter's report was therefore admissible under s 79C of the Evidence Act, subject to the exercise of the court's discretion to reject the statement under s 79C(6) of that Act.
2. As Mr Shay was the qualified person who had died prior to the appellant's trial, the statement in Mr Carter's report could be admitted under s 79C(2)(a) without Mr Shay being called as a witness.

Exercise of the discretion under s 79C(6)

1. Having rejected the State's notice of contention, we turn to ground 1 of the appellant's appeal, which alleges error in the exercise of the trial judge's discretion under s 79C(6) of the Evidence Act.
2. The formation of the opinion referred to in s 79C(6) is a condition for the existence of the discretion conferred by that subsection. Forming that opinion requires the court to take three steps in a jury trial where it is not suggested that the admission of the evidence or the determination of its admissibility may necessitate undue consumption of time. First, the court must assess the probative value of the statement sought to be admitted. Second, the court must identify whether the admission of the evidence may create undue prejudice, confuse the issues or mislead the jury. Third, it is necessary to assess whether the probative value of the evidence is outweighed by any undue prejudice, confusion of the issues or misleading effect which its admission may create.
3. Had we been exercising the discretion for ourselves with the benefit of the submissions made in this appeal, we would not exercise the discretion to reject the evidence under s 79C(6) of the Evidence Act. In our view, the probative value of the evidence, in its tendency to prove the critical facts referred to at [217] ‑ [218] above, is (without regard to other evidence admitted at the trial) of material weight. The contention of the State on appeal is that it is prejudiced by the vagueness of statement and the fact that it is denied the opportunity to challenge the statement of 'a potentially biased witness given his association with' the appellant about a fact that is contrary to[260]l the other evidence.260 We accept that this is a prejudice to the State. However, the State would still be able to adduce evidence to support an allegation of bias, pursuant to s 79E(a)(i) of the Evidence Act. It could still point to other evidence which it contends contradicts Mr Shay's statement. On balance, we would not be persuaded that the probative value of the evidence is outweighed by its prejudicial effect.
4. However, the first question on appeal is not how this court would exercise the discretion, but whether material error has been demonstrated in the exercise of discretion by the trial judge.
5. Allowing for the fact that the judge gave ex tempore reasons, we would infer from those reasons that his Honour did take the steps referred to at [326] above. His Honour's reasons refer to the ambiguity of the statement as robbing it of any real probative value and being likely to cause confusion or mislead the jury. His Honour implicitly found that the probative value was outweighed by the confusing and misleading nature of the evidence. Importantly, the probative value of the evidence was never explained to the trial judge in the terms described above. Given the limited submissions as to the probative value of the statement put by trial counsel (which at their highest contended that the documents added to the weight of the defence position that the Freemasons Hotel was endorsed by the Advisory Committee), we are not persuaded that the opinion formed by the trial judge on the material before him was legally unreasonable.
6. We are also not satisfied that the trial judge's reference to 'exceptional circumstances' demonstrates error in the exercise of the discretion. That may be seen to be a statement of how the discretion under s 79C(6) is to be exercised after the opinion required by s 79C(6) has been formed. It may be seen as indicating that it would be an exceptional case where evidence was not rejected after the opinion required to enliven the discretion under s 79C(6) has been formed. We would agree with that conclusion.
7. Therefore, in our view, ground 1 of the appeal is not established.
8. As the appeal will be allowed on other grounds, this conclusion that ground 1 is not established is of little practical effect. The trial judge's ruling will not be binding on the parties or the judge on retrial. It will be open to the appellant on retrial to seek to tender the statement in Mr Carter's report under s 79C of the Evidence Act. The judge presiding over the retrial should determine the exercise of the discretion under s 79C(6) for himself or herself having regard to the arguments and material which the appellant and the State then advance.

1. The State only sought to invoke the 'proviso' in s 30(4) of the Criminal Appeals Act in relation to count 34 and in relation to grounds 1, 2 and 3.[261] As ground 4 has been established, it is unnecessary to consider the State's submissions as to the proviso if that ground had failed.

1. As the appeal notice was filed one day late, the appellant requires an extension of time in which to appeal. As the very short delay has been adequately explained, an extension of time should be granted. Leave to appeal should be granted, including on the grounds which have not been established or which it has been unnecessary to consider, on the basis that they were reasonably arguable. The appellant's application to adduce additional evidence in the appeal in relation to ground 1 should be allowed in relation to the evidence referred to at [286] ‑ [291] above.
2. Therefore, we would make the following orders in the appeal:
   1. The appellant's application for an extension of time in which to appeal is granted.
   2. Leave to appeal is granted on all grounds of appeal.
   3. The appellant's application in an appeal dated 7 July 2022, seeking leave to adduce additional evidence in the appeal, is granted in relation to the evidence referred to at [286] ‑ [291] of the court's reasons.
   4. The appeal is allowed.
   5. The appellant's convictions of the offences charged in District Court of Western Australia indictment GER IND 66 of 2020 (Indictment) are set aside.
   6. A judgment of acquittal is entered for the offence charged in count 2 of the Indictment.
   7. A new trial is ordered for the offences charged in counts 1 and 3 ‑ 34 of the Indictment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The YNP Trust Deed refers to 'Trustees' in the plural although it allows for a single Trustee. As there has only ever been a single trustee of the YNP Trust at the times addressed by the evidence, it is convenient to refer to the 'Trustee', in the singular, in these reasons.

[4] Clause 3.1 of the YNP Trust Deed as varied.

[5] Clause 3.2 and cl 10.4 of the YNP Trust Deed.

[6] Clause 1.1 of the YNP Trust Deed (definition of Trust Fund).

[7] Clause 2.2(c) of the YNP Trust Deed.

[8] Clause 3.3 and cl 5.7 of the YNP Trust Deed.

[9] Clause 4.1 of the YNP Trust Deed as varied.

[10] Clause 4.2(a) of the YNP Trust Deed.

[11] Clause 6.2(b) and cl 10.3 of the YNP Trust Deed.

[12] Clause 6.2(c) of the YNP Trust Deed.

[13] Clause 6.2(f) of the YNP Trust Deed.

[14] Clause 6.2(g) of the YNP Trust Deed.

[15] Clause 6.3(a) of the YNP Trust Deed.

[16] Clause 9.1 and cl 9.8 of the YNP Trust Deed.

[17] Clause 9.3(a) and cl 9.3(b) of the YNP Trust Deed.

[19] Clause 9.2(b) of the YNP Trust Deed.

[20] Clause 9.10 of the YNP Trust Deed.

[21] Clause 9.10(d) of the YNP Trust Deed.

[53] Clause 1.1 and cl 4.1 of the loan agreement.

[59] Exhibit 8; exhibit 9; trial ts 265 ‑ 267.

[72] The appellant's evidence was that Svanos Trust was the operating trust for a bank account in his name: trial ts 446.

[73] See exhibit 27; trial ts 382 ‑ 386, 391 ‑ 392.

[74] Exhibit 27; exhibit 29; see trial ts 374 ‑ 376. It may be noted that Mr Sim, in accepting propositions put in leading questions by the prosecutor, incorrectly referred to the losses as being after tax and the total losses as being over $2 million.

[137] Trial ts 265 ‑ 268, 286; exhibit 8; exhibit 9.

[139] Trial ts 269 ‑ 270, 286 ‑ 288; exhibit 10; exhibit 16.

[146] Trial ts 348 ‑ 349, 350 ‑ 351. The transcript reference to a 'Warren' Shay at ts 348 appears to be a typographical error.

[152] Trial ts 406 ‑ 407, 504 ‑ 505, 507 ‑ 508; exhibit 31.

[181] Hunter v The State of Western Australia [2014] WASCA 184; (2014) 245 A Crim R 191 [36], [96], [109].

[182] Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215 [130], [154], [170]; Hunter [39].

[185] Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445 [27] ‑ [28], [35], [165]; Hunter [46], [114].

[186] Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221 [13] ‑ [14]; Hunter [37], [99], [110].

[187] Skelly v The State of Western Australia [2020] WASCA 3 [33] ‑ [39].

[191] See Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515.

[196] Appellant's submissions, pars 62 ‑ 63.

[197] Appellant's submissions, par 64.

[198] Appellant's submissions, pars 66 ‑ 67.

[199] Appellant's submissions, pars 68 ‑ 70.

[200] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41]; Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [77] ‑ [80]; Ruthsalz v The State of Western Australia [2018] WASCA 178 [134] ‑ [136]; Kennedy v The State of Western Australia [2021] WASCA 55 [47].

[202] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42].

[203] Hickey v The State of Western Australia [2014] WASCA 32; (2014) 238 A Crim R 237 [61].

[204] Respondent's submissions, pars 47 ‑ 55.

[205] Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110, 117, 124.

[206] Kingdon v The State of Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449 esp at [45].

[207] Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145, 165 ‑ 166, 175; Heydon JD and Leeming MJ, Jacobs' Law of Trusts in Australia (8th ed revised, 2016) [1‑01].

[208] Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86, 97.

[209] See Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 [53] ‑ [65], [105] ‑ [115].

[210] Kauter (100); Trident General Insurance Co Ltd v McNiece Brothers Pty Ltd [1988] HCA 44; (1988) 165 CLR 107, 121; Byrnes [54], [59] ‑ [60]; Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493 [119]; Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; (2015) 255 CLR 62 [3], [10], [108].

[211] See the discussion in Frigger v Trenfield [No 10] [2021] FCA 1500; (2021) 397 ALR 24 [105] ‑ [112] and cases there cited.

[212] Respondent's supplementary submissions, par 1; Appellant's supplementary submissions, par 4.

[213] As to which see Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 [74] ‑ [80]; Martincic v The State of Western Australia [2019] WASCA 134 [49] ‑ [55].

[220] Particulars (a) ‑ (c) to ground 4; Appellant's submissions, pars 74 ‑ 78.

[221] Respondent's submissions, par 57.

[222] Respondent's submissions, par 58.

[223] Respondent's supplementary submissions, pars 5 - 7.

[225] Respondent's supplementary submissions, pars 8 - 18.

[226] Appellant's submissions, par 76.

[227] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, recently reaffirmed in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 [8] ‑ [12].

[228] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] ‑ [34].

[229] Appellant's submissions, pars 51 ‑ 53, 83.

[230] Appellant's submissions, pars 84 ‑ 89.

[231] Appellant's submissions, pars 90 ‑ 91.

[232] M v The Queen (494 ‑ 495); Dansie [16]

[234] Being the total amount transferred from the YNP Trust Account to the Fawrkt Account of $2,909,300.33, less the amount of $1,461,800.33 transferred on 9 March 2017.

[238] Proof, par 6; this par was not relied upon by the appellant.

[243] Proof, par 12; appeal ts 45 ‑ 47.

[251] Trial ts 328 referring to Cavill v The State of Western Australia [2008] WASCA 108 [41].

[254] Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527 [237].

[255] See Caratti [218] ‑ [220], [224], [227], [237].

[256] Appellant's Reply to Respondent's Notice of Contention.

[257] Beamish v The Queen [2005] WASCA 62 [147] ‑ [168]; Cavill [36], [97].

[261] Respondent's submissions, par 67.