Hill v R

AN OVERVIEW OF THE CASE

1. In or about late 2004 the appellant met Daryl Ladd ("Ladd") who at that time was engaged in promoting the construction and sale of homes in Queensland. During 2005, the appellant and Ladd discussed creating a business together which involved the construction and sale of new homes in south east Queensland, to be funded by a combination of funds from "low doc" construction loans obtained through a company called Diverse Financial Solutions Pty Limited, and funds provided by investors who were otherwise known to, or introduced by, the appellant. For these purposes, the appellant and Ladd registered a company in December 2005 named Lynlad-Hill and Associates Pty Limited ("LHA").
2. During the period of the offending, the appellant carried on the business of a financial adviser with Mr Aaron Stephens, through Hill Stephens and Associates Pty Limited ("HSA"), a company based in Bathurst. In the course of that business, the appellant provided financial advice concerning the financing of investment properties, and refinancing existing home loans. At some time in 2005, Mr Stephens became bankrupt and ceased his involvement in the conduct of the business of HSA. However, the appellant continued to provide advice. Some of the persons to whom he provided that advice were those who invested the money which was the subject of the various counts in the indictment.
3. It was the Crown case that in furtherance of the business of LHA, the appellant encouraged and assisted some of his existing clients from HSA, as well as other persons, to establish self-managed superannuation funds, into which their existing superannuation entitlements could be transferred, following which that money could be used to invest in house and land projects being conducted by LHA in Queensland. Initially, the appellant instructed investors to deposit money into the account of HSA (counts 1 to 5). Later, he established a company called International Finance Consortium (Aust.) Pty Limited ("IFC") which operated an account into which the appellant instructed investors to deposit money (counts 6 and 7).
4. It was the Crown case that in each of the 7 counts, the appellant received the money on terms that it would be invested in house and land packages in Queensland. The Crown alleged that contrary to those terms, the appellant misappropriated part of the money he received by using it to meet personal expenses, including the repayment of credit card debt. On the Crown case, of the total amount of $468,000.00 which the appellant received from investors, a total of $281,000.00 was misappropriated.
5. In order to prove the appellant's receipt of the money in each case, and its misappropriation, the Crown relied upon various documents as well as the evidence of various investors. The Crown relied particularly on the investors to establish the terms to which the money was paid to the appellant.
6. The appellant did not dispute the fact that he received the money in each case. The principal (and in reality, only) issue in the trial concerned the terms on which it was so received. The appellant rejected the Crown's allegation that the money was paid for the specific purpose of being invested in house and land packages in Queensland. In summary, it was the appellant's case that: 1. he was given money to invest at his discretion, and absent any term(s) requiring him to pay it to a particular person (which, it was argued, was an element of the offence); 2. he had preferred to invest the money received in property developments in Melbourne, that this was within the discretionary terms upon which the money was received, and that it was done with the knowledge of the relevant investors; 3. the terms on which he received the money did not require him to separate it from his other (personal) funds; 4. his dealing with the money was entirely consistent with the discretionary terms on which he had received it, provided an equivalent amount which was applied for the nominated investment purpose(s); and 5. in respect of count 1, he was given authority, and was entitled, to receive money as reimbursement for his expenditure on the house and land project.
7. It is evident from their verdicts that the jury overwhelmingly rejected the appellant's case.

THE GROUNDS OF APPEAL

1. I turn to address the individual grounds in the terms in which they appear in the notice of appeal.

GROUND 1 - Allowing the amendments to counts 3, 4 and in 5 of the Indictment:

(a) so as to substitute for individual investors the names of corporate investors;

(b) in the case of counts 3 and 4, in addition to those substituted investors were trustees of self-managed superannuation funds;

(c) in circumstances where the Crown had expressed an intention not to call and did not call directors of the corporations, substituted in counts 3 and 4;

(d) where in each case the Crown had not sought or obtained or disclosed to the appellant statements of documents from the accountants for those entities; and

(e) where in each case the Crown had neither obtained nor produced to the appellant records of those entities which would in the normal course of business reflect the terms of the transactions the subject of the counts in the indictment including minute books, financial statements, taxation returns and auditor's reports of the self-managed superannuation funds.

The amendments to counts 3 and 5

1. To the extent that this ground encompasses the decision of the trial judge to allow amendments to counts 3 and 5, it is necessary to set out some of the procedural history of the matter in the Court below.
2. An indictment (at AB 3475-3478) dated 3 July 2015 was filed in the District Court on 10 July 2015 ("the first indictment"). In that indictment: 1. count 3 pleaded that the money was received by the appellant from Prudence Hannan; 2. count 4 pleaded that the money was received by the appellant from Julie Anne Hollitt; and 3. count 5 similarly pleaded that the money was received by the appellant from Julie Anne Hollitt.
3. In a letter to the appellant's solicitor dated 11 February 2016 (AB3479-3480) the Crown advised that an application would be made to amend the first indictment: 1. in respect of count 1, by omitting the words "$34,000 from the Kruit Family Superannuation Fund" and inserting in lieu thereof the words "$28,000 from Asthore Pty Ltd as trustee for the Kruit Family Superannuation Fund, $6,000 from Rick and Joanne Kruit"; 2. further in respect of count 1, by inserting the words "as trustee for" immediately before the words "the Findlay Family Superannuation Fund"; 3. in respect of count 3, by omitting the words "Prudence Hannan" and substituting in lieu thereof the words "Hannan Cowley Pty Limited as trustee for the Hannan Cowley Super Fund"; and 4. in respect of count 5, by omitting the words "Julie Anne Hollitt" and substituting, in lieu thereof "Julie Hollitt Psychologist and Associates Pty Limited".
4. An indictment incorporating these amendments dated 11 February 2016 (at AB3481-3484) was filed in the District Court on 12 February 2016 ("the second indictment").
5. When the matter came before Acting Judge Garling on 17 February 2016, the Crown sought to arraign the appellant on the second indictment. Counsel for the appellant expressly stated (at AB3494 L6) that no issue was raised in respect of the proposed amendments of counts 1 and 5, but that there was an objection to the amendment of count 3.
6. It was the Crown's position (at AB 3495 L1 and following) that the amendment to count 3 caused no prejudice to the appellant, and simply "married up" the terms in which count 3 was pleaded with the documentary evidence upon which the Crown relied in support of it.
7. His Honour accepted the Crown's position and allowed the amendment (AB3496 L24-29), although he did not give formal reasons for his decision. The appellant was then arraigned on the second indictment, and entered pleas of not guilty to all counts. It was on the second indictment that the appellant went to trial.

The amendment to count 4

1. Count 4 in the second indictment pleaded that the money was received from "Julie Anne Hollitt". Ms Hollitt was one of the investors called in the Crown case. She gave evidence (commencing at AB327 L43) that she was provided with a receipt from HSA on 16 October 2006 in a sum of $88,000.00. However the receipt was not issued in her name, but in the name of "J A Hollitt Pty Limited trustee for Julie Hollitt Superannuation Fund" (at AB921).
2. In light of this evidence, an issue was raised (commencing at AB339) regarding the terms of count 4. The Crown explained to the trial judge that the assertion in count 4 that money was received from "Julie Anne Hollitt" was not correct in light of the evidence of Ms Hollitt and the terms of the receipt. In these circumstances, the Crown applied to amend count 4 by substituting, for the words "Julie Anne Hollitt", the words "J A Hollitt Pty Ltd as trustee for the Julie Hollitt Superannuation Fund". That application was opposed by counsel for the appellant. In responding to that objection, the Crown (at AB339 L40-47) rejected the proposition that the substituted party was a "new identity", and pointed out that the fundamental factual basis of the Crown case on count 4 would remain the same even if the amendment were permitted. At that point, counsel for the appellant indicated to his Honour (at AB340 L17) that he was content to continue with Ms Hollitt's evidence with a view to resolving the matter at some later stage. In doing so, counsel asserted that there were "real disclosure issues" as a consequence of the amendment sought by the Crown.
3. When Ms Hollitt's evidence was completed, the Crown again raised (at AB418 L5) the proposed amendment of count 4. The following exchange then took place between counsel for the appellant and the trial judge (commencing at AB418 L29): Counsel: Your Honour will recall the evidence Ms Hollitt gave as to the documents which exist which have not been produced, she has not been asked to produce them, they haven't been produced to defence. His Honour: What documents are these? Counsel: Records of the superannuation fund, records of the company. Your Honour those, documents, we're dealing with witnesses who have been asked to recall matters about ten years ago and those documents are if not contemporaneously closest to contemporaneous one is going to get and, your Honour, if there is one thing that will assist in getting the truth to the truth of a matter it is contemporaneous documents. His Honour: Hang on, I'm a little confused. Has there ever been any dispute that the sum of $88,000 was paid by one of the Hollitt's entities? Was that an issue? I didn't believe those to be issues. Counsel: Your Honour, from the defence point of view inevitably every element of the indictment is an issue, it has to be. His Honour: What I was asking, perhaps I didn't put it properly, is it an issue that either Ms Hollitt, this trustee or someone else paid $88,000 into Hills Stephens & Associates' account at some stage? Counsel: It's clear the company did your Honour, not her personally, it's clear the company did and from the evidence, it's clear that the company did it as trustee of the superannuation fund. The accused in being asked to defend a case where an abundance of contemporaneous documents of the outmost materiality have not been produced. His Honour: I'm still struggling a little I must say to you. If its not in issue that $88,000 was paid, and I didn't think it was, it then comes down to did she pay it personally or did this company pay it? Counsel: The issue is the terms your Honour. His Honour: I just ask you this - I'm sorry to interrupt you, but whether its her personally or the trustee, have the terms changed? Counsel: Your Honour, the records may cast great light on what the terms were because they will be a contemporaneous - - His Honour: I follow what you're saying and that's always been an issue whether it's her personally or the company, that's an issue. So how does changing the name change that? It was an issue and is an issue? Counsel: Because, your Honour, when the indictment is in her name the indictment must fail when it is a name of a company then we have - - His Honour: I understand that, but you follow what I am asking for, it's about the amendment. Counsel: Yes, but once it's amended, your Honour, one has a live case and one has a live case where documents about most materiality have not been sought to be produced or produced.
4. In response, the Crown drew his Honour's attention (commencing at AB419 L39) to the relevant provisions of the Criminal Procedure Act 1986 (NSW) ("the CPA") and submitted that the only circumstance in which an amendment of the kind which was sought would not be allowed would be where there was some prejudice to the accused. In submitting that no such prejudice had arisen, the Crown categorised the amendment as "simply the change of a name". The Crown pointed out that there was no additional evidence which would be called in support of count 4, and that the amendment sought did not, in any way, alter the substance of the Crown case. In response to the submissions of counsel for the appellant regarding disclosure, the Crown submitted that documents relating to the superannuation funds themselves were immaterial because on the Crown case, the significant facts were that money was received by the appellant, and was then misappropriated in contravention of the terms on which it was received. It was submitted by the Crown that in those circumstances, whether the money had been paid by a corporate entity or an individual was of no consequence.
5. In reply, counsel for the appellant submitted that it had always been apparent that the money the subject of count 4 had been received from a corporate entity and not an individual. Counsel then said (commencing at AB420 L24): It was a glaring error but from the defence point of view the defence is entitled to say this will fail. But there was always going to be an unfairness on the defence by not presenting these documents to have as available to them but the unfairness rises to the surface as a real and present prejudice if that amendment is allowed.
6. That submission appeared to be tantamount to the proposition that the appellant was prejudiced by the amendment because it would, if allowed, deprive him of the opportunity of having count 4 withdrawn from the jury's consideration.

His Honour's judgment in respect of the amendment to count 4

1. On 1 March 2016 his Honour delivered the following judgment allowing the amendment to count 4 (AB 768): There is an application made by the Crown to amend the indictment which was present to the jury as far as count 4 is concerned. Count 4 referred to an amount of $88,000 from Julie-Anne Hollitt. During her evidence it became apparent it was not from Julie-Anne Hollitt but from JA Hollitt Pty Ltd as trustee for the Julie Hollitt Superannuation Fund. When that became apparent, the Crown sought to amend the indictment and that is objected to on behalf of the accused. The argument is on the transcript, so I do not need to go into it. I understand Mr Connell's concern about a lack of documents perhaps, however, whether it be Julie-Anne Hollitt or JA Hollitt Pty Ltd as trustee, as I understand the same lack of documents argument flies. I see this as a simple change of name. I know it is put to me there is prejudice, but I do not see the prejudice and I intend to allow what I regard as a fairly formal amendment to the indictment.

Submissions of the appellant

1. The written submissions originally filed on behalf of the appellant did not precisely articulate the basis of this ground. In particular, it was not clear whether counsel for the appellant asserted that the trial judge had erred in the exercise of his discretion, or whether it was said that his decision to allow the amendments gave rise to a miscarriage of justice. In oral argument, counsel for the appellant appeared to put his case on the first of those propositions, arguing that his Honour had erred in a House v The King- type sense.
2. The essence of what was put by counsel in oral submissions to this Court was that (at least in respect of the amendment to count 4) there were records pertaining to the J A Hollitt Superannuation Fund Pty Ltd (which, by virtue of the amendment, was particularised as the entity from which the appellant received the money) which had not been disclosed by the Crown and that as a consequence, the appellant was prejudiced. The oral submissions also advanced the same proposition advanced at trial (and set out at [40] above), namely that the amendment was prejudicial because it deprived the appellant of the opportunity to have count 4 withdrawn from the jury's consideration.

Submissions of the Crown

1. The Crown submitted that to the extent that this ground took issue with the decision of the trial judge to allow an amendment to count 5, counsel for the appellant had (as set out at [32] above) expressly consented to that amendment before the trial had commenced.
2. As to the amendments to counts 3 and 4, the Crown submitted that the offences alleged against the appellant were not concerned with the identity of the person from whom, or the entity from which, the money was received. Rather, the focus was upon the terms on which the money was received, and whether the appellant had breached those terms by using the money as he had done. In these circumstances, the Crown submitted that the amendments allowed to counts 3 and 4 did not alter: 1. the nature of the offences; 2. the manner in which those offences were alleged to have been committed; 3. the evidence relied upon in support of them; or 4. the basis upon which the Crown put its case in relation to them.
3. It was submitted that in these circumstances it had been plainly open to the trial judge to conclude that each amendment was a matter of form rather than substance, and that the merits of the case warranted a grant of leave to allow them.
4. It was further submitted by the Crown that it was open to the trial judge to find that there was no prejudice to the appellant as a consequence of the amendments. To the extent that counsel for the appellant asserted that prejudice arose from the fact that the Crown did not disclose relevant documentation, the Crown submitted that in light of the fact that the appellant did not dispute the receipt of the money, and given that the contents of any documentation were unknown, any asserted prejudice arising from the absence of documentation was necessarily speculative.

Consideration

1. Section 20 of the CPA is in the following terms: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.
2. Section 21(1) of the CPA is in the following terms: 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. …
3. The exercise of the power to grant leave to amend an indictment requires a trial judge to be satisfied that the proposed amendment(s) can be made without injustice or prejudice to the accused. As I have noted, counsel for the appellant in oral argument before this Court put his case in respect of this ground on the basis of a House v The King- type error. However doubts have been expressed as to whether, in a case such as this, any appeal lies on that basis. The fundamental question is whether there was a miscarriage of justice as a consequence of the amendments which were permitted. Such a miscarriage will be demonstrated if it is established that the amendments resulted in an unfair trial, bearing in mind that it is only in cases where the accused would be irreparably prejudiced in meeting the charge that leave to amend should be refused: Borodin v R [2006] NSWCCA 83 at [23]-[25] per Howie J (Sully J and Simpson J (as her Honour then was) agreeing).
4. In my view, having regard to these principles, this ground fails for a number of reasons.
5. Firstly, to the extent that this ground extends to the amendment to count 5, counsel for the appellant expressly told the trial judge (as set out at [32] above) that there was no issue as to that amendment. Having taken that position at trial, it is not open to the appellant to come to this Court and take a diametrically opposed position.
6. Secondly, the amendments to counts 3 and 4 did not alter the nature of the alleged offending, the manner in which it was said to have taken place, the evidence relied upon by the Crown in support of it, or the basis upon which the Crown put its case. Properly viewed, the amendments to counts 3 and 4 did nothing more than amend the name of the person or entity from which the appellant received the money. It is impossible to determine how, in these circumstances, the appellant could possibly have suffered prejudice amounting to a miscarriage of justice.
7. Thirdly, the submission that the amendments were prejudicial because of the absence of documentation invites impermissible speculation as to what any such documentation may have contained. The submission completely overlooks the fact that there was no issue as to the fact of receipt of the money by the appellant in each case.
8. Fourthly, to the extent that counsel submitted that the amendments deprived the appellant of the opportunity of having any count(s) withdrawn from the jury, the loss of such a tactical advantage is not prejudice of a kind which establishes a miscarriage of justice: Borodin at [25] per Howie J.
9. For all of these reasons, ground 1 is not made out.

GROUND 2 - Convicting on an indictment that does not disclose any offence/s known to law.

GROUND 3 - Refusing the application of the appellant to direct a verdict of acquittal on each count on the ground that the indictment did not disclose an offence known to law particularly in circumstances where the Crown declined to amend the Indictment or to conduct its case on the basis that as to each count the terms of receipt of payment required payment to a person, being an element of the offence under s. 178A of the Crimes Act 1901 (sic) under which the appellant was indicted.

GROUND 4 - Refusing to make an order under s. 21 of the Criminal Procedure Act 1987 (sic) requiring the amendment of the indictment so that as to each case it included the element that it was a term of receipt that the valuable security received be paid to a person, and identifying that person, that being an element of the offence under s. 178A of the Crimes Act 1901 (sic) under which the appellant was indicted.

GROUND 5 - Refusing to order that the Crown provide particulars of the Indictment identifying the person to who (sic) on the Crown case payment of the valuable security received was required to be made according to the terms of its receipt.

GROUND 6 - Refusing to direct the jury that an element of the offence as to each count was that it was a term of receipt of the valuable security that it be paid to a person, and rather directing the jury that it was sufficient to convict the appellant that receipt be on terms that the valuable security that (sic) it be paid for a purpose, namely "towards house and land packages in Queensland".

GROUND 7 - Failing to give a direction to the jury as to the element of the offences charged under s. 178A of the Crimes Act 1900 as to all counts, so as to enable it to understand each element and what was required to prove it.

1. Each of these grounds relies upon the fundamental proposition that an offence contrary to s. 178A of the Act required the Crown, in the circumstances of the present case, to prove that the terms on which the money was received required the appellant to pay the money to a specifically identified person. In these circumstances, it is convenient to deal with these grounds together.

The application for a verdict by direction

1. At the close of the Crown case counsel for the appellant submitted (commencing at AB440 L9) that the terms in which the indictment was pleaded did not disclose any offence known to the law. Counsel said (commencing at AB440 L39): Because it must be a payment to a person and the indictment doesn't allege in any count payment to a person. We can't say we suffer any prejudice by an amendment but we need to know what the Crown case is in each case because it is not always clear as to who they say that person is as required by 178.
2. At AB447 L41 and following, counsel for the appellant made an application to the trial judge for a verdict by direction. Consistent with what he had previously put to his Honour, counsel submitted that it was alleged in each case that the appellant had received valuable security "upon terms which required him to pay the whole of the valuable security…towards 'seed capital' in house and land packages in Queensland", in circumstances where s. 178A required the Crown to specify a person to whom the valuable security was to be paid. Counsel submitted that such construction was directly supported by the decision in Andrews v R (1968) 126 CLR 198; [1968] HCA 84.
3. The application was opposed by the Crown. The Crown submitted that the construction of s. 178A which had been advanced by counsel for the appellant was contrary to the decision of this Court in Sinanovic v R [2002] NSWCCA 292.

His Honour's judgment on the application

1. His Honour rejected the application and delivered an ex-tempore judgment immediately after following submissions. Having set out various aspects of the Crown case, as well as the terms of s. 178A of the Act, his Honour said (commencing at AB770): It is submitted that the Crown's indictment does not provide for the paying of the money to any person and that they are required to do that. Therefore, the Crown cannot prove beyond reasonable doubt the elements of the offence. The Crown disagree and submit that the indictment is in the correct form. They rely upon the decision of the NSW Court of Criminal Appeal in Sinanovic v R [2002] CCA 292 (sic). Their argument is that this case is totally on point and that the same submission was made on behalf of the accused and rejected.
2. Commencing at AB771, his Honour cited various passages from the judgment of this Court in Sinanovic, as well from the judgment in Andrews. Having done so his Honour said: The Crown in this case rely totally on that decision (in Sinanovic). The Crown have also provided draft elements which have not been discussed in full, although I understand there will be a submission on behalf of the accused that there needs to be a further ingredient inserted in that document to the effect of what has been argued before me. I have not as yet settled on the ingredients. It seems to me that, as in the case of Sinanovic, the Crown case here is that each of the persons named in the indictment paid various sums of money into one of two bank accounts under the control of the accused, that they paid them in there after the accused had assured them that the moneys were to be used for the purchase of land and construction of homes in Queensland on the basis those homes would be sold and each of the persons name would make a considerable profit. Those persons named in the indictment were then, certainly in most cases, not aware as to whom the money was then to be paid to complete what the accused had assured them was to happen. I am satisfied in the decision Sinanovic the Crown do not have to take that next step and that the indictment in its present state may go before the jury, and I refuse the application for a directed verdict.

Submissions of the appellant

1. Counsel for the appellant submitted that the words "pay to any person" as they appeared in the opening paragraph of s. 178A expressly supported a conclusion that it was necessary for the Crown to establish that the terms on which the money was paid in each case required the appellant to pay it to a specified person. It was submitted that in rejecting the application for a verdict by direction, there had been a failure on the part of the trial judge to have regard to the decision in Andrews, and that such failure was reflected in the fact that his Honour had permitted the Crown to proceed upon an indictment which omitted to specify an essential element of the offence.
2. Counsel further argued that his Honour's reliance on the decision of this Court in Sinanovic reflected further error because: 1. that case involved a trial before a judge alone, and not before a jury; 2. there was no question in that case of the person(s) to whom the money was required to be paid; 3. "the rule propounded" in Sinanovic was confined to the proposition that the persons did not have to be named, providing they were identifiable; 4. the decision in Andrews "did apply and naturally prevailed over the decision of the inferior Court in Sinanovic to the extent of any inconsistency"; and 5. Sinanovic was an unreported decision that has "never been otherwise followed or considered as far as research has been able to disclose".
3. In oral submissions, counsel for the appellant squarely put that the decision of this Court in Sinanovic was plainly wrong, and should not be followed.
4. When asked in oral submissions to nominate those passages in Andrews which were relied upon in support of this ground, counsel turned firstly to the following passage at p. 205 of the judgment of the Court (Barwick CJ, McTiernan, Taylor, Windeyer and Owen JJ): To make out the counts of the indictment, it was necessary to establish that the applicant received the moneys there particularized upon terms requiring him to account to Payne or to him and his wife as the case may be. It had then to be established that at a time when he was bound to account according to those terms, he fraudulently omitted to do so. Because of the precise concepts involved in this particular statutory offence, great care is called for on the part of the trial judge to ensure that the ingredients of the offence are lucidly and accurately explained to the jury. It cannot be said, in our opinion, that the summing-up in the present case measured up even approximately to what was required. In fact, in relation to the counts of the indictment, we cannot think the jury could have obtained any real assistance from it: they certainly could not have gathered from it what was the precise nature of the offence charged and in one respect, at least, it clearly misdirected them.
5. Counsel then took the Court to the following passage (at p. 207): In the first place, it is to our minds plain to demonstration that in any case the convictions of the applicant cannot stand as the summing-up did not instruct the jury at all as to crucial matters to which the indictment gave rise; and in fact they were misdirected in a vital respect. We refer in particular to that passage in the summing-up in which his Honour said: " thirdly that he acted fraudulently, that is to say that he induced the Paynes to part with the money"…
6. Counsel then took the Court to the following passage (at p. 209): It is not pedantry to insist that an accused be tried for the crime for which he is charged: and the function of the proviso to s. 6 of the Criminal Appeal Act, 1912 is not to provide a Court of Criminal Appeal with a refuge from the performance of the exacting duty imposed in the interests of the due administration of the law of close analysis of the sufficiency of the evidence led to support the essential ingredients of the precise charges laid and of the manner in which a presiding judge has instructed the jury as he should in the elements of the offence and the relevance of the evidence thereto. In our opinion, the Court of Criminal Appeal in this case did not perform this task.
7. Finally, counsel drew attention to the following (at p. 211): As we have already pointed out, there is no provision for regarding s. 178A as providing a series of alternative verdicts. Consequently, without amendment at the trial, the fact that the evidence would support a different charge is of no avail.

Submissions of the Crown

1. The Crown submitted that on a proper construction of s. 178A, and upon a consideration of the relevant authorities, the fundamental basis of grounds 2 to 7 was untenable. It was submitted that s. 178A contemplated two broad categories of terms upon which money or valuable security might be collected or received by an accused, namely: 1. terms requiring the accused to deliver up, or account, for the whole or any part of the money (which was the factual position in Andrews); and 2. terms requiring the accused to pay the whole or any part of the money to any person (that being the allegation in the present case).
2. It was submitted that nothing in the wording of s. 178A required that the terms upon which the money was collected or received be written or expressed, as opposed to implied. It was further submitted that in the circumstances of the present case, it was neither necessary nor appropriate for the Crown to specify the identity of any person(s) to whom the money was required to be paid. This, it was submitted, was because many of the investors had never even heard of LHA, but had paid the money on the understanding that it would be invested in house and land packages in Queensland from which they would ultimately derive a profit. It was submitted that in the context of the present case, it was sufficient for the Crown to prove that the terms upon which the money was received by the appellant required him to pay that money to some other person engaged in the house and land packages project, regardless of whether the identity of that other person could be established, and/or was known either to the appellant or the relevant investor.

Consideration

1. Prior to its repeal in 2010, s.178A of the Act was is in the following terms: 178A Fraudulent misappropriation of moneys collected or received Whosoever having collected or received any money or valuable security upon terms requiring him or her to deliver or account for or pay to any person the whole or any part of: (a) such money or valuable security or the proceeds thereof, or (b) any balance of such money, valuable security or proceeds thereof after any authorised deductions or payments have been made thereout, fraudulently misappropriates to his or her own use or the use of any other person or fraudulently omits to account for or pay the whole or any part of such money, valuable security, or proceeds, or the whole or any part of such balance in violation of the terms on which he or she collected or received such money or valuable security, shall be liable to imprisonment for seven years.
2. The position advanced by counsel for the appellant as to the proper construction of s. 178A was based upon three fundamental propositions, namely that: 1. on a proper construction of s. 178A, the words "on terms requiring him or her to …. pay to any person" as they appeared in s. 178A meant, in effect, "on terms requiring him or her to … pay to a particular person; 2. as a consequence, the Crown was required to prove, as an element of the offence, the identity of the person to whom the money was required to be paid; 3. the decision in Andrews supported that construction; and 4. the decision in Sinanovic was plainly wrong and should not be followed.
3. As to the first proposition, the width of the phrase "to any person" as it is used in this section tends completely against the construction advanced by counsel for the appellant. Moreover, it has the capacity to bring about a result which, in my view, could not possibly have been intended by the Parliament. In the present case, the Crown alleged that in light of the discussions which had taken place between the appellant and each of the individual investors, the relevant terms required the appellant to pay the money towards a particular venture, namely house and land packages in Queensland. The pursuit and completion of such a venture would necessarily require the involvement of many persons, not just one. The adoption of the construction advanced on behalf of the appellant would mean that in such a case, no offence could ever be committed against s. 178A absent the Crown somehow being able to prove who of those many persons was to receive the money.
4. As to the second proposition, the section was intended to encompass conduct in which valuable security was received on terms which required the recipient to pay it to someone else, rather than keep it himself. The section does not have, as its focus, the identity of the person to whom the money is to be paid. As this case demonstrates, the identities of the various persons engaged in the project in Queensland are likely to have been completely unknown to the investors.
5. As to the third proposition, and leaving aside the fact that Andrews was a case in which the Crown alleged that the accused had failed to account according to the terms on which money was paid, the passages of that decision to which this Court was taken in oral argument speak of (inter alia) the need to take care to ensure that the ingredients of an offence are properly explained to the jury, the need to ensure that an accused be tried for the crime with which he or she is charged, and the fact that s. 178A does not allow for alternative verdicts. None of those passages provide direct (or for that matter, any) support for the construction of s. 178A advanced on behalf of the appellant. In my view, the decision in Andrews has little bearing upon the present case at all.
6. As to the fourth proposition, this Court in Sinanovic expressly rejected a submission to the same effect of that advanced on behalf of the appellant, in circumstances where the material facts closely resembled those of the present case. In Sinanovic, the indictment brought against the accused alleged that he received a sum of $27,800.00 upon terms which required him to "pay the same by investing in the acquisition … of an interest in a restaurant". On the same basis as that adopted by counsel for the appellant in the present case, the appellant in that case asserted that pleaded in those terms, the indictment did not disclose the commission of any offence under s. 178A and accordingly was bad.
7. In rejecting that proposition, O'Keefe J (with whom Stein JA and Buddin J agreed) said (at [27]): The inclusion of the names of the three partners in the indictment was not a necessary ingredient of the charge under s178A of the Crimes Act 1900. Although it is highly desirable that the person (or persons) to whom the money the subject of a charge under that section is to be paid should be named, the actual name (or names) of such person (or persons) is in essence a particular rather than an averment essential to the validity of the indictment.
8. Importantly, as to the effect of the decision in Andrews, his Honour said (at [30]): The effect of Andrews v The Queen (supra) is that on a charge of fraudulently omitting to account contrary to s178A of the Crimes Act 1900 the Crown has merely to establish that the monies the subject of the charge were received by an accused on terms requiring such accused to account for them and that at the time when the accused was bound to account for such money in accordance with such terms he fraudulently omitted to do so.
9. His Honour concluded by reiterating the following (at [33]): As I have already said, in my opinion, the elements of the offence for which the appellant was tried were correctly stated …
10. For the reasons set out by O'Keefe J in Sinanovic, the appellant's reliance upon the decision in Andrews in the circumstances of the present case is misconceived. There is no basis upon which to conclude that the decision in Sinanovic is plainly wrong and should not be followed. None of the matters relied upon by the appellant at [64] above regarding the decision of this Court in Sinanovic are of any substance.
11. It follows that none of these grounds are made out.

GROUND 8 - Failing to relate the evidence in the case to the jury in a way that explained its potential significance as to whether the elements of the offence had been proved.

Submissions of the appellant

1. The written submissions filed in support of this ground were essentially limited to the assertion (at para. 15) that "just as the all (sic) elements were not put to the Jury, neither were the missing elements or indeed any other element explained to the Jury so as to relate it to the factual issues in the trial". The first part of that submission appeared to be predicated on the proposition that grounds 2-7 succeeded. For the reasons set out, they do not.
2. Beyond that, the written submissions (and for that matter, the oral submissions made by counsel for the appellant before this Court) did not explain, with any real specificity, how it was said that the trial judge had failed to "relate the evidence …. in a way which explained its potential significance to the jury". Importantly, and as previously noted, counsel for the appellant accepted that at the conclusion of the summing-up to the jury, the trial judge (at AB 763) specifically gave him the opportunity to raise any further matters before asking the jury to commence their deliberations. Counsel accepted that when given that opportunity, he raised no issue and that as a consequence, rule 4 applied to this ground.
3. When asked in the course of oral submissions before this Court why the matters which are the subject of this ground were not raised before the trial judge, counsel responded: We accept - we considered it to be incurable, your Honour, we considered that that the only thing for us was a discharge. I took the view that it was an impossible request to ask the judge to re-sum-up…
4. However, counsel then conceded that having apparently formed a view that the position was incurable, he did not in fact make an application that the jury be discharged.
5. In support of the proposition that leave should nevertheless be granted in respect of this ground, counsel for the appellant submitted that the fundamental deficiencies in the summing-up amounted to a deficiency which went to the root of the proceedings: Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]-[13] per Giles JA; Wong v R [2009] NSWCCA 101 at [143].

Submissions of the Crown

1. Noting the absence of any particularity in the submissions of counsel for the appellant, and having regard to the application of rule 4, the Crown submitted that this ground should be rejected and that leave to rely upon it should be refused.

Consideration

1. Accepting what counsel told this Court, it is apparent that he had formed a view at the time of the trial that the summing-up was deficient. In those circumstances, consistent with the authorities discussed at [14]-[18] above, counsel had an obligation to raise the matter at the time. As Bathurst CJ pointed out in ARS (at [148]), the Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could, or should, have been raised at the first trial. If, as this Court was informed, counsel had determined by the conclusion of the summing-up that its deficiencies were such as could not be overcome by further directions, he could (and should) have made an application that the jury be discharged. The failure to make that application was not explained.
2. In terms of the issue raised by the ground itself, a trial judge is obliged to explain the issues to the jury in a way which clearly states the legal principles against which factual questions are to be considered: R v Williams (1990) 50 A Crim R 203 at 214. Moreover, there is a positive obligation on a trial judge to put the defence case accurately and fairly to the jury, and in a way which makes it clear that the onus of proof remains on the Crown: Wong at [141].
3. However, those obligations do not mean that the trial judge must put to the jury every argument advanced on behalf of the accused. Whether a trial judge is bound to refer to a particular evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the members of the jury have sufficient knowledge and understanding of the evidence to be able to discharge their duty to determine the facts. Accordingly, the way in which the case is conducted by the parties will necessarily bear upon the extent to which a trial judge is bound to comment upon, or discuss, the evidence. Discussion or comment which is justified or required in one case, may not be required in a similar case which is conducted in a different way: Domican v R (1992) 173 CLR 555; [1992] HCA 13 at 561. The manner and detail of the summing-up will depend upon the circumstances of the case: Aravena at [109] citing R v Malone [1994] NSWCCA 28 April 1994 (unreported); Cleland v R (1982) 151 CLR 1; [1982] HCA 67 at 10.
4. Ultimately, the question is whether the trial judge has put an accused's case in such a way as to allow a jury to properly consider the issues raised on his behalf. There is no standard formula against which the summing-up of a trial judge in a particular case may be measured.
5. An examination of the summing-up in the present case demonstrates that whilst it was brief, the trial judge discharged his obligations. Bearing in mind that there was really only one issue for the jury's determination, his Honour (commencing at AB 761) fairly summarised the defence case having earlier summarised the salient parts of the evidence. This is not a case in which the summing-up was deficient in the manner suggested on behalf of the appellant.
6. For all of these reasons, leave to rely upon this ground should be refused.

GROUND 9 - Failing to direct the jury that it could not rely on the evidence in one count in support of its case as to any other count in circumstances where the Crown had not issued a tendency notice so that s. 97 of the Evidence Act 1995 (NSW) applied.

The proceedings before the trial judge

1. In the present case, the Crown did not seek to rely upon tendency evidence and did not serve a tendency notice. Notwithstanding that, counsel for the appellant raised with the trial judge the issue of a direction being given to the jury as to the use of tendency evidence (at AB617 L1-19): Counsel: …We want directions on tendency because there's been no tendency notice. His Honour: What direction on tendency do you want if there's no tendency notice? Counsel: You can't take into account your conclusions in relation to one count in order to decide whether the elements are met in another. His Honour: It's not alleged that you want me to say that to them, even though it's not alleged? I'll think about that. They may never have thought about tendency if it is not raised. It is a matter for you. I am not arguing with you. Sometimes with a jury you raise a problem, it's not a problem and suddenly it becomes one in their mind. Counsel: It is the way that my learned friend cross-examined yesterday as to the accumulation of what he said as to various investors raised the issue. I will take instructions on that.
2. Counsel's suggestion that a direction as to tendency evidence was warranted because no tendency notice had been served was something of a non-sequitur but in any event, the issue was not revisited. No further application for a direction as to tendency evidence was made. No complaint was made by counsel for the appellant regarding anything said by the Crown in his closing address to the jury.
3. In his directions to the jury, the trial judge said the following (at AB703): When you come to consider each of these charges you must remember that each charge has a different set of facts. They very similar elements, and I will be giving you a document in a minute setting out the elements, but you still have to look at each charge individually. You will be asked to return a verdict on each charge individually. It does not follow that because you may find the accused guilty or not guilty of one charge, that he is guilty or not guilty of the other charges, or of any other charge. You look at each one individually. Be careful not to be prejudice because there are a number of charges. You can see why they are all brought together, because the evidence relates generally to those charges, so do not be prejudiced in any way about that.
4. Further, after summarising the defence case, the trial judge said (at AB 762): Do not forget you have to look at each charge separately because they do have separate facts relating to them.

Submissions of the appellant

1. Counsel for the appellant submitted that in circumstances where the Crown alleged that the appellant committed the offences in similar circumstances "there was necessarily great pressure on the jury…to rely on tendency". It was submitted that such pressure was "exacerbated by the failure of the trial judge" to correct what was said to have been an "offending submission" made by the Crown which appears in the bolded part of the following passage (at AB638 L40-43) : The submission the Crown makes about that is very simple. These witnesses have not colluded. The reason they tell a similar story is because they were all told similar things by the accused. They are all told where there money is going and it did not get there. The accused encouraged them…
2. Counsel for the appellant took no issue with that submission at the time that it was made.

Submissions of the Crown

1. The Crown accepted that the various counts in the indictment had similar features. The Crown also accepted that there were similarities between the evidence given by the investors, including the fact that the appellant: 1. encouraged each of them to establish a self-managed superannuation fund, and roll over their existing superannuation into such a fund; 2. introduced each of them to a solicitor, a Mr Herat, to assist them with establishing such a fund; 3. suggested that each of them invest money towards house and land developments in Queensland; and 4. with the exception of counts 6 and 7, instructed them to deposit the money into the HSA account.
2. However, the Crown submitted that such similarities did not lead to a conclusion that the Crown relied on tendency evidence. The Crown emphasised that no tendency notice had been served because the Crown did not adduce evidence from the investors for the purpose of proving that the appellant had a tendency to act in a particular way. The Crown further submitted that the evidence of each of the investors did not become relevant because of a reliance upon tendency reasoning, but became relevant because it was direct evidence of the facts surrounding the commission of the offences.
3. Finally, the Crown submitted that the directions given to the jury by his Honour set out at [97]-[98] above were entirely appropriate in the circumstances.

Consideration

1. This ground, to which rule 4 applies, proceeds on two fundamental misconceptions. The first is that the Crown relied upon tendency evidence. That was not so. The second is that the evidence of the investors was tendency evidence. It was not. The evidence given by the investors was evidence of the fact of the appellant's conduct in each case. Consistent with that position, the Crown's address did not invite the jury to engage in any process of tendency reasoning. In all of these circumstances, a direction as to tendency evidence would have been entirely inappropriate.
2. Moreover, when asked by the trial judge to outline the terms of the direction sought, counsel for the appellant responded to the effect that he sought a direction that the jury could not rely upon "conclusions in relation to one count in order to decide whether the elements are met in another". Directions to that very effect (set out at [97] and [98] above) were given by the trial judge. No doubt assisted by that direction, the jury found the appellant not guilty in respect of count 6. The overwhelming inference in those circumstances is that the jury understood, and applied, the directions they were given which, as I have noted, were essentially in the very terms sought by counsel for the appellant.
3. Leave to rely upon this ground should be refused.

GROUND 10 - Failing to give a warning to the jury in terms of R v Murray (1987) 11 NSWLR 12, that as to each count the Crown was relying on one witness only so that before relying or acting on the evidence of that witness, the jury must scrutinise the evidence of that witness with great care, in circumstances where the Crown did not issue a tendency notice so that it could not rely on tendency or coincidence as a basis of corroborating each charge with evidence as to the other charges. In failing in summing-up to correct the submission by the Crown as T615.41-.43 "the reason they (the witnesses) tell a similar story is because they were all told similar things by the appellant".

The proceedings before the trial judge

1. Towards the end of his final address to the jury, counsel for the appellant (at AB670 L26-35) sought what he referred to as "the Murray direction where the Crown relies on one witness". When the trial judge pointed out that the Crown relied on a number of witnesses in order to prove its case, counsel responded (at AB670 L35): "But it is to each count."
2. At that point, the trial judge expressed a number of misgivings about directing the jury in the terms which were sought. He repeated those misgivings immediately before the commencement of the summing-up (at AB700 L21).
3. Counsel for the appellant returned to the issue in the course of his Honour's summing-up (at AB724) when the following exchange took place: Counsel: The first is the question of the Murray direction and its on the basis of transcript 615 where it is said "the witnesses have not colluded. The reason they tell a similar story is because they were all told similar things by the accused". His Honour: How does that fit into a Murray direction which is given where there is just one witness? Counsel: Because the charges need to be considered separately, and when you look at the evidence of the agreement as to terms in each case, there's only one witness for the Crown as to each conversation. That's why. It's a short point. His Honour: I'm not giving a Murray in this case. I have thought about it. I don't think its an appropriate case. Counsel: You know the law, we've made the submission.

Submissions of the appellant

1. The effect of the submission of counsel for the appellant was that a Murray direction was required because the Crown relied on the evidence of a single investor in respect of each count.

Submissions of the Crown

1. The Crown submitted that the primary reason why a Murray direction was not appropriate was because the evidence of the investors was not the only evidence upon which the Crown relied to establish the commission of each offence. For example, the Crown pointed out that none of the investors were in a position to give evidence as to how the money was misappropriated by the appellant in each case, and that this key element of the Crown case was established by relying upon independent banking records.
2. In the course of oral submissions to this Court the Crown sought to support that position by taking the Court to some of the documentary evidence upon which it relied to prove its case at trial. That evidence went to (inter alia) establishing that the appellant had applied part of the money he received to the payment of personal expenses.
3. It was submitted in all of these circumstances that the trial judge did not fall into error in refusing to give the direction sought.

Consideration

1. In R v Murray (1987) 11 NSWLR 12, Lee J said the following (at 19): In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable. There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case.
2. A Murray direction is not uncommon in cases of sexual offending. Although the giving of such a direction is not restricted to such cases, it would have been completely unwarranted in the appellant's trial. Properly understood, the Crown did not rely upon the evidence of a single witness to support its case against the appellant in respect of any count. There were a large number of documents relied upon, not only to support the specific transactions, but also to support other evidence given by some investors as to representations made to them by the appellant, including (inter alia) representations that they would receive a 30% return on their investment.
3. For these reasons this ground is not made out.

GROUND 11 - Failing to give the jury a direction as to the lack of evidence of the accountants for the person providing to the appellant the valuable security alleged to be on terms as to each count, and as to the failure of the Crown to put into evidence records including board minutes, financial statements, order's reports, tax returns and communications with accountants.

The proceedings before the trial judge

1. Towards the close of the Crown case (commencing at AB444 L4) counsel for the appellant said to his Honour: There is obviously an issue in this case from the point of view of the accused of the failure to call witnesses and failure to lead evidence and documents. I have read and re-read Dyers v R (2002) 210 CLR 285, which seems to be the authority on what one says or doesn't say to the jury. One of the things I observed in it and in some respects it is a little impenetrable with respect to their Honours. One of the things I see it in is (sic) that it envisages the trial judge may wish to ask the Crown to explain why certain evidence is not being placed before the Court. It seems to be a discretion in the trial judge as far as I can ascertain, because it may affect the comments the judge makes to the jury, not the direction but the comments.
2. In the exchange that followed, the trial judge indicated to counsel that there was a "standard direction to the jury for failure to call" which counsel said he would "look up". The matter was not raised any further. At no time did counsel identify, with any particularity, the direction which was sought and the issue was not revisited.
3. In the course of his summing-up, the trial judge said the following (commencing at AB 713): Members of the jury, when you get it, you will find it starting at 630 and it goes back for a few pages, and I will give you the direction of law. You have heard that a number of witnesses who names are set out in counsel's address, starting at p 630, have not been called by the Crown to give evidence. You can take the fact that there was no evidence from that witness into account when you decide whether the Crown has proved the guilt of the accused. I am not inviting you to guess what the witnesses would have said had they been called. You must not do that at all. But in a criminal trial where the Crown must prove that the accused is guilty beyond reasonable doubt, a jury is entitled to take into account that there was no evidence from a particular person or persons in deciding whether or not there is a reasonable doubt about the accused's guilt. I will not read it out to you because you will have it, but particularly at p 631, and I think for the next few pages, you will see where Mr Connell sets out those matters, and you will take that into account in accordance with that direction of law I have given you.
4. The references by the trial judge to "630" and "631" were references to what was said by counsel for the appellant in his final address (a transcript of which was with the jury). Counsel's address included the following (commencing at AB653 L49): I want to deal with the question of the witnesses in this case. I would suggest to you that at the end of the day you have to decide whether the elements of each offence are proven or not. In one sense you've got to keep your eye on the ball of that ultimate question. But you are entitled to look at what evidence is before you and what evidence is not before you. Now, that doesn't mean you speculate as to what might or might be in a document, but in terms of being satisfied beyond reasonable doubt that each element is established, you are entitled to bear in mind what has been put before you and what evidence hasn't been put before you. It will be no surprise to you, ladies and gentleman, that the defence says that the case that was put before you is utterly unsatisfactory because the selection process or the lack of selection process of witnesses is highly unsatisfactory. You've got witnesses' conversations which are essential to the Crown case which was simply not called because the Crown has made some decision as to who may or may not be a satisfactory witness. Ladies and gentleman, it's your job to decide who is a satisfactory witness or not, it's not the Crown's, it's your job. Also with the documents, my learned friend says how could any of these documents be relevant, contemporaneous documents, we have given you all the documents. Ladies and gentleman, we have transactions by superannuation funds and by companies who are supposed to keep minutes, who are supposed to file tax returns, who are supposed to have financial statements. All of these record the contemporaneous transactions and also, for example, file notes by their accountants, correspondence to their accountants. All of these things are the sort of documents which would assist you in deciding whether the Crown had made out its case. But the Crown didn't even call the evidence, didn't even ask any of the accountants, didn't even bother to go to them.
5. No direction over and above that which was given (set out at [119] above) was sought. Accordingly, rule 4 applies to this ground.

Submissions of the appellant

1. The written submissions of the appellant did not address this ground at all. However, the ground appeared to encompass a complaint that the direction given was insufficient, and that the Crown had breached its duty in failing to disclose relevant documents.

Submissions of the Crown

1. The Crown submitted that the appellant had not identified what direction it was said that the trial judge ought to have given to the jury, over and above that which was given. The Crown further submitted that what had been said by the trial judge was consistent with the direction generally given in respect of such an issue and that in addition, the trial judge had taken the step of specifically reminding the jury (by reference to the transcript) of the submissions which had been made on behalf of the appellant in this respect.

Consideration

1. The trial judge directed the jury, in the terms set out at [119] above, that they were entitled to take into account the fact that witnesses were not called in determining whether they were satisfied, beyond reasonable doubt, of the counts in the indictment. That direction was given with specific reference to the submissions which had been made by counsel for the appellant. No further direction was sought.
2. Further, and as noted when considering ground 1, the appellant's repeated complaint concerning the failure on the part of the Crown to provide relevant documentation involves impermissible speculation about the contents of any such documentation. Given the issue in the case, it is impossible to see how the documents to which counsel for the appellant referred in his final address could ever have been material. In any event, counsel was given the opportunity to put the submission to the jury, and did so. Clearly, the jury rejected it, as was open to them to do.
3. In circumstances where the trial judge gave the direction set out, and where no further direction was sought, rule 4 applies. In the circumstances, leave to rely upon this ground should be refused.

GROUND 12 - Failing to give a direction to the jury in relation to count 3 as to the failure of Daryl Ladd, though called to give evidence, to corroborate the Crown's case as to there being a meeting at the offices of Bruce Herat at which on the Crown's case he was present, when the alleged terms of the receipt were alleged to have been imposed on the appellant.

The evidence of Prudence Hannan in respect of count 3

1. The terms of count 3 in the indictment are set out at [3] above. In respect of that count, the Crown alleged that the appellant received a sum of $70,000.00 from HannanCowley Pty Ltd as trustee for the HannanCowley Super Fund, upon terms which required him to pay the whole of it towards house and land packages in Queensland. The Crown alleged that in breach of those terms, the appellant had misappropriated a total of $68,000.00 of the $70,000.00 received.
2. In support of count 3, the Crown called evidence from Prudence Hannan who told the jury (commencing at AB298 L1) that the appellant was recommended to her by a work colleague as someone who could assist her in establishing a self-managed superannuation fund. She said that having contacted the appellant, she met with him and discussed establishing such a fund, with a view to investing in house and land packages (at AB298 L35-36). She said that the appellant had told her that she could expect a better return by setting up her own fund, and that she would be able to avail herself of more taxation benefits. Mrs Hannan said that the only investment about which the appellant spoke was that of property development (at AB298 L38-47).
3. Mrs Hannan gave evidence (at AB299 L2-15) that she and her husband made a decision to establish a self-managed fund and that for that purpose, she met with a solicitor, Mr Herat, in the presence of the appellant and Ladd. Following this meeting, the HannanCowley Superannuation Fund Pty Limited was incorporated (AB299 L12-15). Mrs Hannan said that in the course of that meeting an entity referred to as "Safe House 1" was discussed. She explained (commencing at AB299 L41) that she understood that Safe House 1 was the name of a company being managed by Ladd, through which land in Queensland was being purchased upon which houses were to be built and then sold after a period of time, generating an expected return to those who had invested. Following the meeting $70,000.00 was transferred from amounts in the existing superannuation funds held by her and her husband into the HannanCowley superannuation fund, and then transferred to the account of HSA which was operated by the appellant (at AB300 L1-23).
4. Mrs Hannan described (commencing at AB301 L33) her contact with the appellant after the transfer of the monies as "on and off". She said that the appellant gave her advice about investment properties as a consequence of which she and her husband purchased an investment property in Browns Plains, Queensland, for which the appellant had arranged the finance for a fee of $5000.00 (AB301 L37-49). She also said (commencing at AB302 L10) that the appellant talked about other investments, including a market garden in Victoria in which an amount of $5,000.00 was invested from the HannanCowley superannuation fund.
5. Mrs Hannan also told the Court (at AB302 L25-29) that she and her husband "kept asking" about the earlier investment of $70,000.00 but that the appellant "sort of put (her) off and would say that he'd been really busy and that he was catching up on administrative - the administrative side, that we would get our paperwork shortly". Mrs Hannan confirmed that she received no document from either the appellant or Ladd (at AB302 L31-35). She also said (at AB302 L37-41) that she did not sign any documents in respect of the $70,000.00 provided to the appellant and that when such documents were sought the appellant responded that he would "get back to (her) with them". She also said (AB302 L43-44) that she was never given a receipt for that investment.
6. In addition to the investment in the market garden, Mrs Hannan discussed "the Powerhouse development in Melbourne" with the appellant who had told her that investing in that development would generate a better return (at AB303 L3-11). She explained (commencing at AB303 L13) that she and her husband were nevertheless under the impression that the money was being invested in house and land packages. She expressed that this was what they had wanted, and that they had not wanted any money to be invested in the Powerhouse development. She said that she told the appellant this but could not recall his response. She confirmed (commencing at AB303 L34) that she did not receive a return on any part of the $70,000.00 paid to the appellant, nor any return of the capital investment in the market garden.
7. In cross-examination, Mrs Hannan agreed (at AB307 L8-17) that Mr Herat had explained to her some aspects of the conduct of a self-managed superannuation fund. It was put to her (at AB307 L30-34) that she had not had a meeting in the presence of Herat and Ladd and that she was confusing it with another meeting, which she denied. She said (at AB307 L49-50) that Ladd had used a whiteboard in the meeting at which investment in Safe House 1 was discussed.
8. Mrs Hannan agreed (commencing at AB308 L17) that in the course of making a statement to investigators, she had made reference to a conversation with the appellant in which she had inquired as to the progress of the investment in the house and land packages, and in which the appellant had informed her that he had invested some of her money into the Powerhouse development because it was a good opportunity to do so. In that same statement, Mrs Hannan said that upon being so informed she had asked the appellant what had become of the investment in house and land packages in Queensland, to which the appellant responded that the Powerhouse was a better investment. She agreed (at AB308 L42 to AB309 L1) that to the best of her knowledge, she did not, upon being so informed, raise any issue about the change of investment and that this was the end of the conversation.
9. In his closing address to the jury counsel for the appellant said the following (at AB 677 L41): Now, it is against that background that I come to the evidence of Mrs Hannan. At page 286.11 she said she had very little independent recollection of events and relies on her statement. At 275.1 she says that Mr "Findlay recommended a self-managed…invested in Stephen Hill", which you might think was an interesting turn of phrase and a familiar one with the evidence on behalf of the accused. Now, Mr Ladd was called by the Crown but Mr Ladd gave no evidence of the meeting at Mr Herat's offices between Mr and Mrs Hannan, Mr Herat, Mr Ladd and Mr Hill that Mrs Hannan gives evidence of. He was there in the box, the Crown examined him. He wasn't even asked about it. Mr Herat wasn't called, Mr Hill says no such meeting took place. I suggested to her that she might have got mixed up and she denied that.

The summing-up of the trial judge

1. Commencing at AB735, the trial judge summarised the evidence of Mrs Hannan, including aspects of her cross-examination by counsel for the appellant. When given the opportunity to do so at the conclusion of the summing-up, counsel for the appellant did not seek the direction upon which this ground is based. Accordingly, rule 4 again applies.

Submissions of the appellant

1. This ground of appeal was not squarely addressed in the appellant's written submissions. In oral submissions, counsel emphasised that it was the appellant's case that the monies received by him were able to be invested at his discretion, and that it had been put to Mrs Hannan (inter alia) that her evidence in relation to the meeting was mistaken. The essence of the submission put on behalf of the appellant was that in those circumstances, the direction ought to have been given.

Submissions of the Crown

1. It was submitted on behalf of the Crown that contrary to what had been put to the jury in counsel's final address, it had never been suggested to Mrs Hannan that the meeting at Mr Herat's office did not take place, that she was confused about it, or that Ladd had been in attendance. It was submitted that in these circumstances, and leaving aside the fact that no direction had been sought at the time, the purported inconsistency was not such as to warrant a specific direction by the trial judge.

Consideration

1. At no stage of Mrs Hannan's cross-examination was it ever directly put to her that Ladd was not at the meeting, nor was it ever directly put to her that the terms upon which the money was paid allowed the appellant to invest it at his discretion. The omission, by Ladd, of any reference to the meeting when he gave evidence was drawn to the jury's attention. A submission was made in relation to it. It was a matter for the jury what they made of that evidence. The issue did not warrant any specific direction from the trial judge and in any event, no direction was sought.
2. In those circumstances, leave to rely upon this ground should be refused.

GROUND 13 - Failing to direct the jury that it should disregard that portion of the address by the Crown at T604.16-24 in the context of the Crown's accusation of the appellant at T545.40-45 that he and Ms Kruit caused the documents described as Acknowledgments of Investments in Exhibits 7,10 and 11 to be produced and backdated in order to mislead investors and potentially ASIC, on the bases that, first, there was no evidence to support the submission and secondly, on the failure of the Crown, in breach of the rule in Browne v Dunn (1893) 6 R 67 as explained in the State of NSW v Hunt (2014) NSWLR 226; [2014] NSWCCA 47 at [1], [42]-[43] and [75], to put that proposition to Ms Kruit who had been called by the Crown.

The proceedings before the trial judge

1. Joanne Kruit was one of the investors called by the Crown to give evidence. Her evidence was relevant to (inter alia) count 1. In the course of cross-examination, Ms Kruit was asked questions about three documents which subsequently became Exhs. 7, 10 and 11. Exh. 7 comprised a bundle of documents relating to Mrs Hannan. Ms Kruit gave evidence (AB271 L21-37) that she had sent the documents to Mrs Hannan in a draft form and they had been returned to her having been completed by Mrs Hannan and her husband.
2. Exh. 10 (AB3165 and following) comprised similar documents issued by IFC to Mr Long and Ms McGuire (whose evidence went to count 6 in respect of which the appellant was acquitted). Ms Kruit identified these documents as those which she had sent for completion and which has been returned to her (at AB270 L48 - AB271 L17).
3. Exh. 11 (at AB3181 and following) comprised similar documents relevant to count 7. Again, Ms Kruit identified these documents as those sent to Ms Sloane and which were returned to her having been executed (at AB270 L12-44).
4. In the course of re-examination by the Crown (commencing at AB274 L17) Ms Kruit confirmed that documents within Exhs. 7, 10 and 11 had been back dated and that she had been instructed to prepare those documents by the appellant. In particular Ms Kruit said (at AB276 L11-13): Q: And on whose instruction did you prepare those documents with the earlier dates, 2006, 2007? A: I decided to date them after discussing with (the appellant) that they must be dated the date the moneys were initially lent.
5. It was specifically put to the appellant in cross-examination (at AB568 L41) that the documents were deliberately backdated to mislead investors, a proposition which the appellant denied. It was then put to the appellant (at AB568 L44) that they were backdated with the intention of misleading the Australian Securities and Investments Commission in the event that it ever investigated the matter. The appellant "totally disagreed" with that proposition. However he did agree (at AB568 L47) that the documents in question were not generated on the dates they bore.
6. In the course of his final address to the jury, the Crown said (at AB627 L16-24): This was not a case of simple poor management by Mr Hill. It is not a case of a man who didn't know what he was doing. It was instead a deliberate and dishonest use of funds. We can see that, if nothing else, with the documents that became Exh. 7, 10 and 11. These are the back dated documents given to McGuire, Sloane and Hannan. All documents which sought to re-write history to say their investments had gone to Melbourne when all the witnesses came to court and said the investment was in Queensland. The Crown says those documents are really important, not because of what they say, but because of why they were written and I will come back to that again later.
7. In respect of Exh. 7, the Crown addressed the jury in the following terms (commencing at AB634 L48): Now one of the documents that you have, exhibit 7, is the document that was generated in March 2008, a costs agreement for all intents and purposes, between IFC and the HannanCowley Superannuation Fund. It was the exhibit that Ms Kruit explained she produced and she did that herself but in consultation with the accused. The important part of that document and I mentioned it earlier was that it annexes a back dated document which purports to explain when Prue Hannan and Superfund invested the money. It refers to the investment going to Melbourne, which just was not the case. It is a backdated document generated purely to explain where this money went. When, on the Crown case the accused knew the money was supposed to go to Queensland. Mrs Hannan said she did not see that document at the time; it was shown to her until much later, sometime in 2008. Mrs Hannan's evidence was that she did not receive any documents from the accused with the exception of a receipt.
8. As to exhibit 10, the Crown addressed the jury in the following terms (commencing at AB636 L10): That was (Ms McGuire's) evidence, money going to the Queensland development in Brisbane, and the Crown says that this is what she was told and Mr Long was told by the accused. I will just read some cross-examination about this as well because its important to understand that at one point in time Ms McGuire believed she perhaps had invested in Melbourne because she received exhibit 10, the backdated document which says here's the costs agreement and here is where you have invested. Mr Connell asked her this question at page 352: 'I suggest there was a telephone call with Ms Wren…Melbourne projects do you recall that? Do you recall saying that? A:Yes' What's important is she didn't remember it because that's what happened, she remembered it for this reason. I will read this out. This is at page 361: 'Now, you were asked some questions about an interview…investment in Melbourne through Mr Hill. There was an objection that was ruled on. I asked the question again: 'Did you make an investment in Melbourne through…investment in Melbourne until August 2008'. That's really important because when she gave the answer to ASIC she was relying on those backdated documents we now know have no credibility whatsoever. She was not given that information at the time of making the investment. McGuire's evidence was very clear, the money from her and her husband was invested for Queensland purposes. She was never given any documents about the investment apart from receipts. She was told the money was going to Queensland and never got there.
9. As to Exh. 11, the Crown put to the jury (commencing at AB637 L9): And that's the reality, that Ms Sloane had never heard of the Melbourne developments and the minutes of the meeting at exhibit 11, it is like the documents in exhibit 7 and exhibit 10. When there's a reference to money going to Melbourne its simply wrong. It cannot be relied upon because the document was backdated and not shown to Ms Sloane at the relevant time and it certainly does not reflect her understanding of where she had invested her money. Those documents, 7, 10 and 11, were all created on the instructions, or to use Mr Hill's word yesterday, consultation with Ms Kruit. She did not prepare them all by herself, she prepared them with Mr Hill's blessing and they were done purely to mislead the investors and perhaps ASIC. That's the Crown's submission.
10. No objection was taken by counsel for the appellant to the Crown's cross-examination of the appellant. Moreover, at least at the time of the Crown's address to the jury, no issue was taken with what the Crown had put.
11. Counsel for the appellant addressed the jury on this same issue at some length (commencing AB643 L11). The essence of counsel's submissions is encapsulated in the following passage (at AB643 L11-17): At the very end of the case the Crown decided to run the line that the accused and Ms Kruit had tried misleading the various investors by getting them to sign documents where they acknowledged their investments were in Melbourne investments. Aside from the sheer implausibility that you can mislead people who think they've invested in Queensland house and land packages, you can mislead them by telling them they've invested in Melbourne; the proposition is absurd, they would simply say, no, you've got it wrong.
12. During the summing-up, counsel for the appellant took issue (commencing at AB725 L1) with what the Crown had said in his final address about Exhs. 7, 10 and 11 and sought that the jury be directed to disregard the submissions which had been made. Counsel argued (inter alia) that the Crown's submission conveyed the suggestion that Ms Kruit was involved in a serious impropriety, in circumstances where that proposition had not been put to her. Counsel further submitted (at AB726) that the Crown's address was tantamount to putting to the jury that the backdating of documents was evidence of the dishonesty of the accused.
13. At the conclusion of these submissions the trial judge said (at AB729): The simple answer I think to this last matter which was raised is that it forms part of the evidence, which went before the jury, and it forms part of the submission of each counsel to the jury. I do not intend to do anything further other than to put counsel's position in relation to that evidence to the jury in my summing, to remind them of it. I believe that it is a matter entirely for jury, and I will not be doing anything other than that.
14. In the course of his summing-up (at AB758) the trial judge reminded the jury of the Crown's cross-examination. There was no further reference to the issue and counsel for the appellant did not seek any further direction at the conclusion of the summing-up.

Submissions of the appellant

1. Counsel for the appellant submitted that the Crown had cross-examined the appellant in a way which suggested that he had caused documents to be backdated in order to mislead investors and ASIC, and had made it plain that such an accusation was made against Ms Kruit as well. It was submitted that the cross-examination of the appellant, and the Crown's reliance on this evidence generally, served to mount a prejudicial attack on the appellant's credit.

Submissions of the Crown

1. The Crown submitted that no impropriety had been suggested to Ms Kruit and that in those circumstances, this ground effectively fell away. It was further submitted that what was put to the jury by the Crown was entirely proper, and based on inferences which were open to be drawn.

Consideration

1. This ground is based upon a false premise, namely that the Crown had put to the jury that the appellant and Ms Kruit had backdated documents in order to mislead investors and potentially ASIC. No such proposition formed part of the Crown case. No such proposition was ever put to Ms Kruit.
2. Moreover, there was no dispute that the documents were backdated. In light of the Crown case, it was entirely proper for the Crown to put to the appellant that he had deliberately engaged in backdating the documents for the purposes of misleading both investors and ASIC. The acceptance or rejection of that denial was a matter for the jury. There was nothing whatsoever improper in what the Crown put to the jury in his closing address. Moreover, the Crown's address was squarely the subject of a response by counsel for the appellant, all of which simply highlighted the fact that the issue was one for the jury's determination.
3. For those reasons, this ground is not made out.

GROUND 14 - Giving a summing up which while addressing evidence supporting the Crown case against the appellant, failed to adequately address the evidence in support of the defence case.

1. This ground particularises that the trial judged failed to: 1. address the defence case generally; 2. refer to particular evidence relevant to count 1; 3. advert to particular evidence contained in Exh. 4; 4. advert to particular evidence from Mr Findlay in respect of count 1; 5. refer to specific parts of Exh. 18 which, it was said, were inconsistent with the Crown case; 6. refer to the absence of evidence from Ladd regarding the meeting referred to by Mrs Hannan (which, it is noted, was the subject of ground 12); 7. direct the jury that Exhibits 7, 10 and 11 were inconsistent with the Crown case; 8. refer to contemporaneous notes of ASIC investigators which were said to be inconsistent with the evidence given by various Crown witnesses; 9. refer, in respect of count 7, to a statement of claim which had been verified by Ms Sloane, and which contained assertions which were said to be inconsistent with her evidence before the jury; 10. refer to the case of the appellant in respect of Exh. 19 as it related to counts 2, 4 and 5; 11. advert to the fact that the Crown was required to prove that the terms required payment of the valuable security to a particular person (which, it is noted, was the basis of grounds 2-7); 12. advert to the defence case that the terms on which the money was paid in each case envisaged that the monies received be used to a particular end; 13. advert to the defence case that the terms on which the money was paid in each case allowed for the possibility that other funds of the appellant, or funds of a company controlled by him, might be applied in the manner directed; 14. advert to the defence case that the application of funds to investments in Melbourne was evidence of the fact that the appellant did not misappropriate funds or act dishonestly in using the funds that he had received; 15. refer to the evidence of Mr Stephens as to the viability of the Melbourne investments; 16. advert to the fact that there was no evidence to support the Crown allegation that the appellant caused Exhs. 7, 10 and 11 to be backdated in order to mislead investors and officers of the Australian Securities and Investments Commission; 17. comment upon the "contamination of the evidence of witnesses proofed in the company of other witnesses.
2. Not one of these matters was the subject of any application by counsel for the appellant at the conclusion of the summing-up of the trial judge. Accordingly, rule 4 again applies.

Submissions of the appellant

1. Counsel for the appellant submitted that the summing-up of the trial judge represented little more than a summary of the Crown case. It was submitted that the summing-up "didn't explore the defence case at all in any meaningful way" and that the appellant was "entitled to have the trial judge give his judicial imprimatur to the existence and substance of the defence case".

Submissions of the Crown

1. The Crown submitted that the summing-up was neither unbalanced nor unfair, pointing out that no complaint had been made to the trial judge at the time. It was submitted that the appellant had failed to identify how it was that the asserted failures on the part of the trial judge rendered the summing-up unbalanced. The Crown also drew attention to the fact that the jury had been provided with a copy of the transcript of the evidence of all witnesses, along with the closing addresses of the Crown and counsel for the appellant.

Consideration

1. I have already made reference in considering ground 8 (at [90]-[92] above) to the fundamental obligations of a trial judge when summing-up to a jury. In one sense, the matters raised by this ground are little more than an expansion of those relied upon by the appellant in support of ground 8. However, because the gravamen of the complaint is that the summing-up of the trial judge amounted to little more than a summary of the Crown case, one additional observation should be made. The fact that a summing-up deals principally with evidence led in the Crown case, does not, of itself, bespeak error. Whether or not a party's case has been adequately put to the jury is not to be measured in minutes spent, or the number of words spoken, nor can it be assessed, by direct comparison, with the attention given by the trial judge in his or her summing-up of the case brought by the opposing party. Fairness and balance are not achieved, and cannot be gauged, by such means. This is particularly the case where the opposing party is the Crown. It is almost axiomatic that in a criminal trial, the Crown case will constitute the vast majority, if not the whole, of the evidence placed before the jury. Necessarily in such a case, the trial judge, in giving the jury directions as to how to approach the evidence, will devote greater time and attention to the Crown case than to any case called for the accused: Aravena at [104]-[106].
2. For the reasons expressed in relation to ground 8, the trial judge complied with his various obligations. Significantly, not one of the litany of complaints now made was raised at the trial, in circumstances where counsel for the appellant informed this Court that he formed a view as to the purported shortcomings of the summing-up at the time that it was given. If the view were taken at the time of the that the summing-up was as unbalanced as is now suggested, it is frankly inexplicable that the matter was not raised at the time. Moreover, it is no answer to say that the shortcomings were so great that they were incapable of being remedied. As I have already pointed out in considering ground 8, if that were the case a discharge of the jury should have been sought.
3. Leave to rely on this ground should be refused.

GROUND 15 - Having regard to the evidence referred to in particulars (ii) to (ix) of paragraph 13 (sic) above, the verdict of the jury as to counts 1, 2 (sic) and 7 was unsafe and unsatisfactory as the evidence in each case must have raised a reasonable doubt as to the guilt of the appellant of each of those charges.

1. Before dealing with the evidence relevant to this ground, two matters should be noted. Firstly, the reference to "paragraph 13" in this ground should be a reference to ground 14. Secondly, given that none of the particulars in paragraphs (ii) to (vix) in ground 14 relate in any way to count 2, I have proceeded on the assumption that the reference to count 2 should in fact be a reference to count 3.

The evidence before the trial judge

1. In respect of count 1, Ms Kruit and Mr Findlay gave evidence as to the circumstances of their investment of the money. That evidence, which included evidence that they arranged for money to be paid into the HSA account on the instruction of the appellant, on the understanding that the money would be applied towards seed capital in house and land packages in Queensland, was not the subject of any direct challenge by counsel for the appellant.
2. In her evidence, Ms Kruit told the Court (commencing at AB237) that the appellant had spoken to her in 2004 or 2005 about investing in house and land packages in Queensland. She also gave evidence (commencing at AB238 L18) that she had loaned the appellant a total of $169,000.00 for personal expenses. Such expenses included costs of completing renovations to the appellant's home, and the payment of legal fees for "different matters concerned in Melbourne". Ms Kruit told the Court that none of that money was repaid.
3. Commencing at AB239 L10, Ms Kruit gave evidence that the appellant had suggested to her that she should incorporate a self-managed superannuation fund. She said (at AB240 L46-49) that it was about this time that the appellant had approached her about investing in land and property developments in Queensland. She said (at AB242 L28 and following) that she had attended a meeting at which Ladd was present, and at which she was informed that investments were available in house and land packages which would generate a return of 10 percent over each 3 month period. Ms Kruit gave evidence (commencing at AB244 L3) that ultimately she and her husband invested an amount of $100,000.00 in what she understood to be the "Seed Program", that being a term which the appellant had always used when requesting the money. According to Ms Kruit (at AB247 L46-49) the appellant had informed her that such money, once received, would be transferred for investment in house and land packages in Queensland.
4. Mr Findlay said (commencing at AB285 L41) that he understood that the money was to be invested in house and land packages. In particular, Mr Findlay was asked the following: Q. All right, just thinking about the meeting in December when there was discussion between Mr Ladd and the potential investors did Mr Ladd go into any detail as to where the house and land packages would be? A: I am struggling to recall the exact answer, but I think it was Balgowan or somewhere like that in Queensland. We didn't take a huge amount of notice of that because we were investing with him and his company, and it was just nice to know that they were going to use it for house and land packages. Q: When you say 'him' you mean Mr Hill? A: Yes.
5. In the course of the appellant's cross-examination, he was taken to aspects of Ms Kruit's evidence (commencing at AB529 L27). He maintained that such evidence was "not right" and that witnesses had been "well coached".
6. In terms of count 3, I have already made reference (at [128] and following above) to the evidence of Mrs Hannan. Her husband was not called to give evidence. The trial judge gave the jury a direction in relation to the issue of witnesses who were not called (set out at [119] above).
7. In terms of count 7, Lynette Sloane gave evidence (commencing at AB388 L8) that she had had discussions with the appellant regarding the incorporation of a self-managed superannuation fund through which monies could be invested. Her evidence included the following (commencing at AB389 L1): Q: And once you did that did Mr Hill talk to you about investing those moneys? A: The money was rolled over in February at some stage and - - Q: February of what year? A: 2007, and basically what the investment strategy was for the money I was led to believe that it was going into land and house packages up in Queensland. Q: Let me just stop you there? Did you have a conversation with Mr Hill about that investment? A: We did have a conversation about that investment, yep, prior to - - Q: Do you remember, to the best that you, what he said to you about that? A: To the best of my knowledge it was to invest land and house development packages where funds were invested into building houses and it rolled into building other houses, and basically at the end of like a five year period you get outright own a house as such. Q: Did he say anything about paying interest payments to you while the money was invested? A: If there was any interests or anything like that yeah you could get an interest fee at the end of the year sort of thing, yep. Q: And when Mr Hill explained that to you do you remember saying anything to him about it? A: I don't remember saying anything to him, but it sound like an attractive thing at the time.

Submissions of the appellant

1. Counsel for the appellant submitted that it was not open to the jury to be satisfied beyond reasonable doubt of any of these three counts. In advancing that submission, counsel took the Court to a schedule of evidence given by the relevant witnesses which, it was said, demonstrated various inconsistencies.

Submissions of the Crown

1. The Crown submitted that in each case, it was open to the jury to be satisfied beyond reasonable doubt that the appellant had committed the offence. The essence of the Crown's submission was that to the extent that there were inconsistencies between the evidence of each of the investors on the one hand and the appellant on the other, those inconsistencies were matters which were the province of the jury to assess.

Consideration

1. In R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 the test to be applied by an appellate Court when it is asserted that a verdict was unsafe and unsatisfactory was put in this way (at [65]-[66], citations omitted): [65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a Court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. [66] With those considerations in mind, a Court of criminal appeal is not to substitute trial by an appeal Court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal Court "must always be whether the [appeal] Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
2. I have observed on a number of occasions that the issue in the present trial revolved around the terms upon which the appellant had received the valuable security in each case. In respect of each of these three counts, the respective investors gave evidence of those terms. The appellant's case was that that evidence should not be accepted. The responsibility for determining that fundamental factual issue was that of the jury. The jury evidently accepted the evidence of the investors, and rejected that of the appellant. The fact that there may have been inconsistencies in aspects of the evidence does not lead to a conclusion that it was not open to the jury to convict the appellant in respect of any of counts 1, 3 and 7.
3. It follows that this ground is not made out.

GROUND 16 - The Court should over turn the decision as to the grounds of unfairness of the conduct of the case against the Appellant arising from:

a) The failure to produce apparently credible witnesses and documents whose evidence was essential to the complete unfolding of the Crown case or was otherwise material to the proceedings; R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279, and specifically;

vii) The accountants for the depositors as to each count;

b) Minute books, financial statements, auditors, reports and taxation returns of the depositors in each case, and particular those by trustees of self-managed self-superannuation funds;

c) The contamination of witnesses by proofing them in the company of other witnesses or potential witnesses;

d) The failure to give adequate disclosure of documents to the defence.

Submissions of the appellant

1. To some extent, the submissions advanced by counsel for the appellant in support of this ground were the same as those relied upon in respect of grounds 1 and 11, at least in so far as this ground relied upon a failure by the Crown to call certain witnesses, or a failure by the Crown to comply with its disclosure obligations. These matters have already been canvassed when dealing with those other grounds in which they arise.

Submissions of the Crown

1. The Crown submitted that no miscarriage of justice had arisen in respect of any of the matters raised on behalf of the appellant. It was submitted, in particular, that none of the witnesses whom the Crown was said to have been obliged to call had provided any statement or proof of evidence, such that it was entirely speculative to conclude that their evidence would have been unfavourable to the Crown and favourable to the appellant, to the extent giving rise to a miscarriage of justice.
2. The Crown further submitted that rather than voice any substantive objection at the trial, or make any application(s) to the trial judge, counsel for the appellant had made a tactical decision to pursue the matter by cross-examining the principal investigator regarding (inter alia) an asserted failure to obtain statements from relevant witnesses.

Consideration

1. The Crown has a responsibility for deciding what witnesses are to be called in a criminal trial, bearing in mind its obligation to properly present the Crown case conformably with the dictates of fairness to the accused: R v Soma (2003) 212 CLR 299; [2003] HCA 13 at [29]; Richardson v R (1974) 131 CLR 116; [1974] HCA 19 at 119.
2. What any of the witnesses named in this ground would have said had they been called to give evidence is a matter of pure speculation. It could not be said in those circumstances that the evidence of any one of them was essential to the unfolding of the case for the Crown: R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 at 577-578.
3. Moreover, other than to the extent already canvassed, the matter was not raised by counsel for the appellant at the trial. In particular, no application was made for a stay of proceedings on the basis that the Crown had breached its disclosure obligations. The appellant received the benefit of the direction set out at [119] above regarding witnesses who were not called.
4. It follows that this ground is not made out.

GROUND 17 - The appellant was not charged for some years after the offences in question although it was made plain to him he was being investigated and he was not brought to trial for many years after that. He went to trial in 2016 in respect of events occurring in 2006. The trial judge failed to give adequate consideration to this factor in determining sentence. It is apparent that the threat of incarceration hung over the head of the appellant for many years. The authorities on the issue of delay re sentence were reviewed in Sabra v R [2015] NSWCCA 38.

The evidence on sentence

1. Before the Court on sentence was a report of Dr Glen Smith, Psychiatrist, (commencing at AB 3584) who had examined the appellant on 1 April 2016 following the verdicts of the jury. Dr Smith expressed the view that the appellant was suffering from symptoms consistent with a major depressive order, and a panic disorder of moderate severity (at AB 3594). The general tenor of his opinion was that those conditions pre-dated the commission of the offences. The report did not address, directly or otherwise, the delay which had occurred in bringing the appellant to trial. However, there was no dispute that the offending took place in 2006, and that it was not until 2016 that the appellant came to trial.
2. In the course of the latter part of his evidence in chief before the jury, the appellant was asked (AB 511 L16-18): Q: What is your financial position as things stand? A: I'm a disability pensioner and … I lost everything, I lost my assets, the whole lot.
3. Counsel for the appellant submitted to the sentencing judge (at AB 3545 L15-22) that delay was a strong factor in mitigation "particularly where there's evidence of the offender rehabilitating himself or herself in the meanwhile." Counsel submitted that the delay in the present case was "very, very long" and that "in those very unusual cases the Court of Appeal says the Court is entitled to be extremely flexible". Although not specifically put, the effect of counsel's submission was that the personal and financial losses that the appellant had sustained and about which he had given evidence had been brought about as a consequence of the delay in bringing the proceedings.

The findings of the sentencing judge

1. At AB 778, the sentencing judge said the following in relation to the issue of delay: The offender must be punished in such a way that he understands that he cannot offend in this way but it is very important that others in the community realise if they offend in this type of way then they will be sentenced quite often, usually, to terms of imprisonment. There is no doubt there was significant delay between the commission of the offences and the charging. The offences were in 2006 and 2007 and in 2013 as I understand he was charged. It was not his fault and he may well have been left in uncertain suspense during that time. I will take that into account on sentence.

Submissions of the appellant

1. Counsel pointed to the fact that the appellant had not been charged for some years after the offences had been committed (in circumstances where it had been made plain to him that he was being investigated) and that he had not been brought to trial for many years after that. It was submitted that in these circumstances the sentencing judge had failed to give adequate consideration to the fact of delay in determining sentence. It was submitted that the threat of incarceration had hung over the head of the appellant for many years, and that the sentencing judge should have concluded that the consequences of the delay to which the appellant had been subject included the loss of personal assets to which he referred at the conclusion of his evidence in chief.

Submissions of the Crown

1. The Crown submitted that there was no doubt that the sentencing judge had given consideration to the question of delay. The Crown also pointed to the fact that the appellant had not given evidence on sentence, as a consequence of which there was no evidence before the sentencing judge as to any particular effect(s) of the delay. It was submitted that in all of the circumstances, there was nothing which warranted any significant reduction in sentence on the grounds of delay and that in any event, his Honour had taken it into account.

Consideration

1. Delay will ordinarily be a mitigating factor on sentence where (inter alia) it has resulted in significant stress for an offender, or left him or her, to a significant degree, in uncertain suspense: Scook v R [2008] WASCA 114 at [57] and following per Buss JA, cited by Bathurst CJ in Giourtalias v R [2013] NSWCCA 216 at [1787]-[1788]. Because delay is a mitigating factor, there is an onus upon an offender to establish that the consequences of such delay are as he or she asserts: Sabra v R [2015] NSWCCA 38 at [47] per Bellew J (Meagher JA and Schmidt J agreeing).
2. In the present case, the appellant gave no evidence on sentence. There was, as a consequence, no evidence to support the proposition that the losses he had suffered, and to which he referred at the conclusion of his evidence in chief before the jury, were brought about by the delay in coming to trial.
3. At the same time, the length of the delay in the present case was such that his Honour was entitled to find (as he did) that the appellant had been left in a state of uncertain suspense for a period of time. Clearly, his Honour took that into account. Contrary to the submission advanced on behalf of the appellant before this Court, the sentence itself does not indicate a failure on the part of the sentencing judge to give the issue of delay appropriate weight. It is also noted that the appellant has made no complaint of manifest excess.
4. Finally, it should be noted that the oral submissions of counsel for the appellant before this Court suggested that the sentencing judge should have applied a specific and discrete discount to reflect delay. Such an approach, had it been adopted, would have been erroneous: Chung v R [2017] NSWCCA 48 at [63]-[65] per the Court (Beazley P, RA Hulme and Bellew JJ).
5. In these circumstances, leave to appeal against sentence should be refused.

Conclusion

1. For the foregoing reasons, I proposed the following orders: 1. The appeal against conviction is dismissed. 2. Leave to appeal against sentence is refused.

Amendments 06 March 2020 - Correction to formatting DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2020