Jovanovic v R [2007] TASSC 56

Jovanovic v R [2007] TASSC 56 - TASSC 2007 case summary — Zoe

[16]

1 The appellant was found guilty of three counts of stealing, being counts 1, 2 and 4 on an indictment. He was found not guilty of a stealing charge in count 3. The indictment charged him jointly with Ian Maxwell Tapping, who was a principal witness for the Crown following his plea of guilty to the charges against him. It alleged that in each case, they contravened the Criminal Code, s234, which declared stealing to be a crime.

2 The first count charged the appellant with being a director of D W & I M Tapping Pty Ltd ("Tappings") and between 16 and 19 August 1996, stealing $30,000 of monies that were the property of persons who had deposited the monies with the company, with a direction that they were to be applied only to loans secured by registered first mortgage to persons purchasing real estate, by applying the $30,000 to the appellant's own purposes, contrary to that direction. The Crown's case was that in July 1996, the appellant asked his fellow director, Mr Tapping, if he could have $30,000 from Tappings with which to pay rates that were owing by the appellant and his wife with respect to his business and her professional offices at 95 - 97 Elizabeth Street, Hobart. Tappings had received money from clients on trust for investment on first mortgages. The money had been lent to borrowers. Mr Tapping informed the appellant that the company had insufficient funds available with which to pay him the $30,000. However, it then transpired that a borrower called Dare was to repay $30,000 of investor's money that had been lent to Dare, the loan being secured by way of a mortgage from Dare. Mr Tapping's evidence was that the appellant said that he would have that. Mr Tapping requested the borrower to repay what was owing with two cheques payable to Tappings, one for the principal sum of $30,000 and the other for an interest and management fee component of $2,352. The appellant and Mr Tapping signed the discharge of mortgage and the two cheques were received from the borrower's solicitor. Mr Tapping endorsed the $30,000 cheque, which was dated 16 August 1996, so as to make it payable to the Hobart City Council and he gave it to the appellant, who used it to pay the rates. It was the Crown's case that the money was investor's funds that should have been deposited into the company's trust account with Tasmanian Trustees. That accorded with Mr Tapping's evidence, which included that the investor to whom the $30,000 belonged was a Mrs Dawson.

3 It was Mr Tapping's evidence that right from the beginning he told the appellant that they were not allowed to make loans to directors and that the loan would have to be secured by way of first mortgage over the appellant's home at 68 Doyle Avenue, Lenah Valley, which he owned jointly with his wife. The $30,000 was lent to the appellant without such a mortgage. Mr Tapping recorded the loan in the company's books as having been made to a client whose name was recorded as "Doyle". His explanation for not ensuring that a mortgage from the appellant and his wife was obtained before passing on the $30,000 cheque to the appellant, was that the person who prepared the mortgage was overseas and he trusted the appellant. Subsequently, in November 1996, a mortgage document over the Doyle Avenue property from the appellant and his wife was sealed by the company, signed by Mr Tapping and given to the appellant to have his wife sign as co-mortgagor, but it was never registered. The responsibility for arranging that would have rested with the appellant's wife, who was a legal practitioner and performed legal services for Tappings.

4 Some years later, during the course of civil proceedings between Tappings, when in liquidation, and the appellant, he produced a copy of a mortgage document signed by him, but not by his wife. It was not executed by the company. It was dated 16 August 1996 and was drafted so as to secure a loan of $30,000 to the appellant and his wife. It was Mr Tapping's evidence that it contained a clause that was not in the mortgage document he had signed. It was cl 35, the final clause, and it stated that interest on the loan was to be paid out of the appellant's entitlement to monies otherwise due to him from the company, and that while any such entitlement remained unpaid there would be no default under the mortgage.

5 It was the Crown's case that the $30,000 was the property of the company's investors and that any loan of the funds could only be for the purpose of financing a purchase of real estate, secured by a registered first mortgage. At the trial, it was the appellant's case that it had not been proved that the money belonged to investors and that it was not a loan but funds due to him from the company as management fees. However, at the time there was some uncertainty about what fees were due to him and to show his bona fides, the mortgage was created, but it was not to be registered or enforced unless it was found that money was owed by him.

6 The second count charged the appellant with being a director of Tappings and between 9 and 22 November 1996, stealing $8,940.05 of monies that were the property of persons who had deposited the monies with the company, with a direction that they were to be applied only to loans secured by registered first mortgage to persons purchasing real estate, by applying the $8,940.05 to the appellant's own purposes, contrary to that direction. The Crown's case, based on Mr Tapping's evidence, was that in November 1996, the appellant approached Mr Tapping with a request for $9,000 with which he wished to purchase shares. Mr Tapping agreed and said that he would add the amount to the $30,000 loan that already existed, with which the appellant agreed. Because the appellant wanted $8,940.05 for a stockbroker, J B Ware & Sons, Mr Tapping wrote out a cheque payable to that firm in that sum and a separate cheque for the balance of $59.95, recording them both under the name of "Doyle loan". In fact the so-called Doyle loans were recorded by Mr Tapping in the company's journal as "Doyle 7 Charles Street Moonah". His evidence was that the address was fictitious and the false entry was created because Mrs Tapping, his wife, "would have hit the roof" if she had known that he had made a loan to the appellant. On the same day as the loan was made, 20 November 1996, Mr Tapping sent a letter to the appellant's wife, requesting that the $30,000 loan mortgage be updated to include the further $9,000.

7 At the time of the so-called loans totalling $39,000, Mr Tapping was preparing the appellant's income tax returns and the $39,000 was not disclosed as income, which on the appellant's case, it was. When Tappings was wound up in 1999, the appellant had paid nothing towards interest or principal on the loan. In 2002 or 2003, the appellant requested Mr Tapping to amend his taxation returns so as to bring in the $30,000 amount as income. That was after Mr Tapping and the appellant had been interviewed by the police.

8 The Crown's case, as it was with count 1, was that the $8,940.05 was the property of investors of Tappings and that any loan of the funds could only be made for the purpose of financing a purchase of real estate, secured by registered first mortgage. On both counts 1 and 2, it was the Crown's case that the funds were stolen by the appellant and Tapping in that they were provided to the appellant as a loan which was not secured by a registered first mortgage and which was contrary to the directions of, and undertakings to, investors. The appellant's case on count 2 was that it had not been proved that that the money belonged to investors and that it was not a loan but funds due to him by way of management fees.

9 Count 4 charged the appellant with being a director of Tappings and on or about 13 January 1997, stealing $100,244 of monies that were the property of persons who had deposited the monies with the company, with a direction that they were to be applied only to loans secured by registered first mortgage to persons purchasing real estate, by lending the $100,244 to G W Stanton & Associates Pty Ltd without securing the loan with a registered first mortgage, contrary to the direction.

10 The Crown's case on count 4 was as follows. Harold Adams was a director of Coal River Processing Pty Ltd ("Coal River") operating at 77 Chapel Street, Glenorchy. Those premises were the subject of a first mortgage to Tasmanian Trustees to secure a loan of $900,000. The appellant and Mr Tapping arranged to lend $150,000 of investor's funds to Coal River. It was agreed with Tasmanian Trustees that the loan would be secured over 77 Chapel Street by a mortgage that would rank in equal standing with the first mortgage held by Tasmanian Trustees over that property. In fact, the loan of $150,000 was secured by a second mortgage over the property. No blame for that was attributable, in any material sense, to the appellant or Mr Tapping.

11 In the latter part of 1996, Coal River was in financial difficulties and Tasmanian Trustees, as mortgagee in possession, gave notice of intention to sell 77 Chapel Street. The appellant, Mr Tapping and Mr Adams formed a company, G W Stanton & Associates Pty Ltd ("Stantons"), which purchased 77 Chapel Street in an attempt to protect the $150,000 of investors funds secured by the second mortgage. Following negotiations, Stantons acquired a transfer of the first mortgage from Tasmanian Trustees. The appellant and Mr Tapping resolved that they would lend $100,244 of investors' funds to Stantons to assist it with running expenses, a lot of it being applied to pay arrears of rates and land tax. Tasmanian Trustees would only proceed with the transfer of the mortgage if those arrears were paid. The approval of investors was not obtained. The loan was secured by a second mortgage from Stantons. It was the appellant's case that two solicitors, Mr Wallace and Mr Barry, gave advice approving the securing of the loan by way of second mortgage. It was the Crown's case that no such advice was given by the solicitors and that the appellant (and Mr Tapping) had stolen the $100,244. It was also the appellant's case that it had not been proved that the money belonged to investors. On all counts, it was his case that he did not act dishonestly.

[20]

14 The ground concerns only the first count in the indictment. It relates to the evidence that in the course of civil proceedings between Tappings, when in liquidation, and the appellant, he produced a copy of an unregistered mortgage document bearing 16 August 1996 as its date, which was signed by him, but not by his wife, which was not executed by Tappings, which purported to secure a loan to him and his wife in the sum of $30,000, and which contained a final cl 35 stating that interest on the loan was to be paid out of his entitlement to monies otherwise due to him from the company and that while any such entitlement remained unpaid there would be no default under the mortgage.

15 In his closing address, counsel for the Crown only referred to the document briefly. He drew to the attention of the jury that according to a transcript of Federal Court proceedings in 1999, the appellant said in evidence that he and his wife signed a mortgage for the loan and that ASIC had the document. Counsel then pointed out to the jury that there was evidence that ASIC did not have the document. It was also pointed out that in the course of further questioning in the Federal Court about the loan and what the appellant may have owed by way of interest on it, he made no mention of a clause containing provisions such as those in cl 35, but said in evidence simply that "I was under the impression that it was understood that my liability would be reduced as a result" (of fees due to him). Counsel for the Crown then said to the jury that it did not matter and that it was a clear case of stealing because the appellant knew that the funds belonged to investors, that there had to be a first mortgage, that he knew that he could not provide a first mortgage because there was already a first mortgage on his home and in any event, the mortgage document relied on by the appellant was never registered. Counsel for the Crown concluded: "So a clear case of stealing and I suggest a clear case of actual dishonesty."

16 Counsel for the appellant, in his closing address, put his case concerning the creation of the document on the following basis. At the time he received the $30,000, he believed that Tappings owed fees to him and that the payment came from outstanding fees. He trusted Mr Tapping in that regard. However, as his counsel said to the jury, the reason for the mortgage document was:

[24]

18 It is the appellant's case that the learned judge should have directed the jury in accordance with Edwards v R [1993] HCA 63; (1993) 178 CLR 193 about the dangers of using the evidence in question as evidence of a consciousness of guilt on the part of the appellant and, because no such direction was given, a miscarriage of justice occurred.

19 During a break in the summing up, counsel for the appellant raised the subject, but he did not seek the direction that it is maintained by the ground of appeal should have been given. Counsel said that "the way your Honour directed it sounded a little bit like it was put as a consciousness of guilty type argument, a covering up later, but I don't think that's the way the Crown put it when they were closing and I don't think that's what your Honour was intending either but it just sounded to me like ...". Counsel said that it was his understanding "that the Crown was not saying to the jury that you can use that as a consciousness of guilt". No directions were sought or given about the matter.

20 Counsel for the Crown did not submit to the jury that it should conclude that the mortgage document containing cl 35 was a false one and that the appellant deliberately created it, conscious of his guilt, in an endeavour to provide exculpatory evidence. It was submitted to this Court that what was implicit in the Crown's case was that if the appellant was guilty, it followed that he had concocted the document. That is correct and it was conceded by counsel for the appellant that the closing address by counsel for the Crown did not give rise to a need for an Edwards direction. It was what was said by the learned judge that required the direction, it was submitted, particularly references by his Honour to the Crown's case being that the document "was invented after the fact"; "a concocted document − that's their primary case"; "it didn't exist it comes into existence as a construct, is how the Crown put it, way after the investigators have moved in"; and "it's fixing your defence".

21 Edwards' case requires a direction, in an appropriate case, that before a jury can consider a lie by the accused person as probative of guilt, they must be satisfied that it was a deliberate lie relating to a material issue, told in circumstances that reveal a knowledge of the crime and told by the accused person out of fear for the truth or a realisation of his or her guilt. Other associated directions are also required in the usual case. However, as a general rule, an Edwards-type direction should only be given if the prosecution contends that the lie was told because of a consciousness of guilt, in the sense that it was told because the accused knew that the truth would implicate him in the commission of the offence and if, in fact, the lie in question is capable of bearing that character. Zoneff v R (2000) 200 CLR 234 at 244. It is not necessary to give the direction every time it is suggested, in cross-examination or argument, that the accused person said something that was untrue or otherwise reflected adversely on his or her credibility. Where, as was the case here, the prosecution does not contend that a lie is evidence of guilt, then unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Dhanhoa v R [2003] HCA 40; (2003) 217 CLR 1 at 12.

22 It is not merely evidence of the telling of lies after the alleged commission of an offence that may require a direction of the kind being considered. For example, in R v Chang [2003] VSCA 149; (2003) 7 VR 236, the Court of Appeal considered whether evidence was capable of demonstrating consciousness of guilt and required the direction, where it included evidence of flight, the assault of a police officer, the laying of a complex false trail and the concealment of a body and preparation of a grave, in addition to a large number of alleged lies.

23 The question that arises here is whether an Edwards-type was required because, in the light of what was said by the learned judge to the jury, and in the context of the evidence and the closing addresses, there was a real danger that the jury might resolve that the appellant constructed a false document and then reason that, because he did so, he committed the crime charged. I am not persuaded of that. It was not part of the Crown's case and it was not a process of reasoning encouraged by the learned judge. What his Honour highlighted to the jury was that the defence case was that the document demonstrated that he had acted in good faith when he received the sum of $30,000, whereas the Crown's case was that it did not do so because it was a later reconstruction and, in any event, it did not matter. Further, the appellant's counsel did not seek the direction. A miscarriage of justice has not been demonstrated.

[30]

"Well, the Crown case, in essence, relies upon the evidence of Mr Tapping. So we'll go to Mr Tapping's evidence, but before we do that if you could just bear with me and go back to the memorandum. When I said it relies on Mr Tapping, it's his account that we need to be concerned with. He's an accomplice. 3.1, although a jury might convict on the evidence of an accomplice it is dangerous to do so unless that evidence is corroborated. Now the Crown says there's heaps of corroboration of his evidence here. The documentation itself is corroboration. The transfers themselves are corroborations. The evidence of the solicitors is corroboration. But in any event, he's an accomplice; so when you come to consider some parts of his evidence you just need to be careful, or cautious. That need for caution and corroboration is the danger that an accomplice might minimise his or her role in the crime and exaggerate that of the accused, or the person might have purpose of his own or her own to serve. For example, in a joint trial, for example, when an accomplice is called as a witness he might say, it was the fellow in the dock was the one who hit him with the iron bar and I saw him do it, etcetera, etcetera, and you think, well I wonder who did hit him with the iron bar; in other words, you've got to be careful because it's in this man's interest to point the finger elsewhere - that's the point. Here, the Crown say that Tapping has pleaded. The defence have suggested he may have done so, he may have - how shall we put it, enhanced his evidence against Mr Jovanovic, either because he thought he'd get a better deal in own pleas, that was one way I think it was put by counsel in questioning, or, if I'm going to go down I may as well take you with me. So that's the sort of thing that accomplices have in - sometimes have in their minds when we're - when they're giving their evidence. So you just need to be careful.

Corroborative evidence is that which confirms, or some additional evidence, which renders it probable that the evidence of the accomplice is true. I think here both sides really invite you to believe some of Tapping and not the other. And then the other side say, if you believe these bits and not the other, it really was a case where he was giving evidence which seemed to cut both ways, perhaps. And perhaps, some of his evidence was to enhance his own feelings about himself - I didn't believe I was doing anything criminal. Well then you get the attack on him saying, if that's right why plead guilty? And then the defence say, well he wanted to get on with his life and in the scheme of things that was what he'd decided to do. What you don't do is take his plea of guilty and say, if he was guilty this man must be guilty - you don't work that way, it doesn't - you don't work it that way. His plea was to show, by the Crown, that his claim that the meeting with Wallace led him to believe that it was legitimate and proper to lend on second mortgage to Stantons. It was a result of what Wallace told them. And the Crown say, Wallace says he never did and if you're so convinced that your version of events is correct, why plead - that's how they used it. The defence also would say he pleaded because he was acknowledging his own guilt in criminal conduct because he was the operator and that Jovanovic was simply, although a director, was not the person with the day to day control. So they say there's a big difference. So we know he's pleaded. We now need to assess his evidence in the light of knowing he was an accomplice. He has pleaded but you don't use his plea as a direct reasoning method to say if one man's guilty the other man must be."

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27 In support of the first three paragraphs of the ground of appeal, counsel for the appellant relied on R v Small (1994) 33 NSWLR 575. In the Court of Criminal Appeal, Hunt CJ was dealing with the question of the directions that should be given, at common law, concerning the need for corroboration of a witness called by the Crown, who was criminally involved in the events and whose evidence implicated the accused person. At page 593, his Honour said that although there was no rule of law which required a trial judge to do so, it was usually preferable for a trial judge in a straight forward case to set out exhaustively each of the matters upon which the Crown relied and which might be considered by the jury as amounting to corroboration. If a trial judge did not exhaustively set out each of those matters which might be considered as amounting to corroboration, Hunt CJ said that the judge was obliged to instruct the jury as to the qualities of corroboration in such a way as to leave it beyond doubt what conditions the material had to satisfy before it could be regarded as corroboration. It would be wrong for the trial judge to simply leave it to the jury to take into account any evidence which they might consider as amounting to corroboration.

28 R v Small was decided before the Uniform Evidence Act was enacted for New South Wales and, of course, this State. The Evidence Act 2001, s164, abolished the common law requirement that it is necessary for a judge to warn a jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect, or to give a direction relating to the absence of corroboration. So far as concerns the need for a warning from the trial judge concerning the evidence of a witness who may have been criminally concerned in the events giving rise to the proceedings, the Act, s165(2), provides merely that if a party so requests, the judge is to warn the jury that the evidence may be unreliable, inform the jury of matters that may cause it to be unreliable and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. By s165(4), it is not necessary that a particular form of words be used in giving the warning or information.

29 In Stewart [2001] NSWCCA 260; (2001) 124 A Crim R 371 at 372, Spigelman CJ said that ss164 and 165 constitute reform of the law of a fundamental kind, and at 373, that a significant change in the law was intended. His Honour referred to the requirements of s165(2) as mandatory, subject only to a decision to the contrary, under s165(3), because of good reasons for not doing so. The other members of the Court of Criminal Appeal were of the same view. At 386, Howie J referred to the common law requirement for corroboration as having been abolished and like the other members of the court, he regarded s165 as containing the governing rules. At 398, he said that the common law requirement that it was necessary to inform the jury that it was dangerous to convict on the evidence of an accomplice unless it was corroborated, was no longer required. From what he said at 376, Hulme J agreed. Similarly, in C_onway v R_ (2002) 209 CLR 203 at 223 - 224, the majority of the High Court referred to s164 as abolishing the necessity for both corroboration and a warning about acting on uncorroborated evidence, although it did not forbid such a warning being given.

30 In New South Wales, an attempt was made to return to the common law and to require trial judges, certainly in some cases, to give to juries clear directions to the effect that it would be dangerous to convict an accused person upon the uncorroborated evidence of a witness who might reasonably be supposed to be criminally concerned in the events giving rise to the proceedings. See R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300 at [58] and R v Ngo [2003] NSWCCA 82 at [188]. However, the Court of Criminal Appeal in that State ultimately abandoned that attempt in Kanaan v R [2006] NSWCCA 109 at [216] and held at [217] that a judge is never under a duty to give the direction.

31 Notwithstanding that the learned trial judge was not required to warn the jury about acting on Mr Tapping's evidence unless it was corroborated in the common law way, such a warning was given in this case. In essence, his Honour instructed the jury that they should regard it as dangerous to act on the evidence of Mr Tapping unless it was corroborated by some other evidence which affected the appellant by connecting or tending to connect him with the crime. It was submitted by counsel for the appellant that once the learned judge had decided to give such a warning, it had to be correctly expressed, and in that regard reliance was placed on Conway v R (supra) at 226, where it was said that if a trial judge gives the warning but misdirects the jury about what evidence could constitute corroboration of the evidence in question, there would be a misdirection of law. In such a case the appeal should be allowed unless no substantial miscarriage of justice occurred.

32 By the ground of appeal, the appellant complains that the learned judge failed to identify with any precision the evidence that was capable of corroborating the evidence of Mr Tapping. The learned judge explained that corroborative evidence was evidence that confirmed, or some additional evidence that rendered it probable, that the evidence of the accomplice was true, and that it had to be evidence that affected the appellant by connecting or tending to connect him with the crime. His Honour referred, in general terms, to documentation, transfers and the evidence of solicitors (Mr Wallace and Mr Barry) as being evidence relied on by the Crown as corroboration. It was submitted for the appellant that those directions were inadequate and that the learned judge should have identified, in far more detail, what evidence was capable of amounting to corroboration in a technical sense. The submission should be rejected. The effect of ss164 and 165 is that no such identification was required. A misdirection as to the law would have amounted to an error of law, but a mere failure to give a direction, that the law did not require, did not amount to an error of law. For the same reason, the failure of the learned judge to direct the jury that to amount to corroboration evidence had to be independent of Mr Tapping was not an error, nor the failure to direct that it was for the jury to determine whether any evidence was in fact corroborative and to explain that the warning did not cease to have effect even if some corroboration was found to exist.

33 Paragraph (d) of the ground complains of a failure to give a sufficient warning as to the danger of acting on the evidence of an accomplice, and of the reasons for such danger. The learned judge explained to the jury that even on the Crown's case, Mr Tapping was engaged in the criminal conduct with the appellant and in the light of that, there was a need for caution and corroboration because of a danger that an accomplice might minimise his role in the crime and exaggerate the role of the accused person, or that the accomplice might have a purpose of his own to serve. It was explained that there was a need for care because it was in Mr Tapping's interest to point the finger elsewhere. Reference was made to the defence argument that Mr Tapping may have "enhanced his evidence against Mr Jovanovic" so that he could secure "a better deal" when he pleaded guilty to the crimes, or so that "if I'm going to go down I may as well take you with me".

34 Section 165(2) required the learned judge, if one of the parties so requested, to warn that the evidence of Mr Tapping that was in question might be unreliable and to inform the jury of matters that might cause it to be unreliable. By s165(4), no particular form of words was required in giving the warning or information. Counsel for the appellant submitted that the directions of the learned judge were inadequate because his Honour failed to instruct the jury that "the law's experience is that the evidence of accomplices is frequently unreliable". In its terms, s165(2), did not require an instruction in those terms. All it relevantly provided was that the jury be informed of matters that might have caused the evidence in question to be unreliable. Those matters, or some of them, may have formed the basis of the law's experience, to which counsel referred, and s165(2) required the learned judge to refer to them, but there was no requirement of the kind for which counsel argued. It was also submitted that the learned judge ought to have directed the jury's attention to the fact that Mr Tapping had provided, in the course of the sentencing process involving him in which he pleaded guilty to the crimes, an undertaking that he would give evidence for the Crown at the trial of the appellant, in return for a promise, or in the hope, of gaining a more lenient sentence than he would have received otherwise. However, there was no evidence that was in fact the case. Counsel was only able to point to evidence from Mr Tapping that he pleaded guilty to the crimes because he wanted to get matters over and done with and get on with his life and that "I was quite happy to give evidence because as far as I'm concerned, I've been saying this all along, what I've been saying here". If there had been evidence that when sentencing Mr Tapping, the sentencing judge had taken into account, as a matter of significance, that he had undertaken to cooperate with the authorities and give evidence against the appellant, it would have been necessary for that to be mentioned by the learned judge in his summing up as one of the matters that might have caused Mr Tapping's evidence to be unreliable. See Conway v R [2000] FCA 461; (2000) 98 FCR 204 at 254; Stewart [2001] NSWCCA 260; at 375, 377 and 403. The jury would have had to be informed of that as part of the learned judge's duty, under , to inform them of matters that might cause Mr Tapping's evidence to be unreliable. But there was no evidence that could form the basis of such information in this case and therefore, no error of the kind claimed by counsel. As was pointed out by Howie J in at 387, the content of the warning will depend upon the circumstances of the particular case, including any aspect of the trial, such as cross-examination and counsel's addresses.

35 Finally in support of this ground, it was submitted for the appellant that the warning given by the learned judge "was very much undermined by the repetition without criticism, of the prosecutor's argument that Mr Tapping had pleaded guilty". What was said by the learned judge about the matter is set out earlier in these reasons. It did not undermine the warning that had just been given. The learned judge was merely pointing out to the jury how both sides of the case had sought support from the fact that Mr Tapping pleaded guilty.

36 The ground of the appeal fails. I comment that the direction of the learned judge went further than s165 required and for that reason, it was favourable to the appellant. Before leaving the ground, I express my agreement with the view of Howie J in Stewart at 397, with which Spigelman CJ agreed at 375, that it is preferable that trial judges avoid using the word "accomplice" when giving the required warning to juries. The use of the word may convey that the trial judge believes that the witness was an accomplice of the accused person in a conspiratorial sense and, therefore, that the judge had formed the view that the accused was guilty. Section 165(1)(d) refers to a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding" and not to a witness who was an accomplice. See also the reaffirmation of Spigelman CJ's view in R v Saltan [2002] NSWCCA 423 at [15].

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37 Ground 4 was abandoned. In the summing up, the learned judge made it clear that a necessary element of the crimes charged was that the appellant was acting dishonestly when he took, converted or applied the money which was the subject of the respective charges. The jury were instructed that the issue concerned the state of mind of the appellant when he was receiving the money and was to be judged by the jury, in their capacity as representatives of the community, in accordance with current standards of ordinary, reasonable people. It is the appellant's case that error occurred because the jury should have been instructed, but was not, that the test for dishonesty was a purely subjective one in accordance with a Victorian line of authority of R v Salvo [1980] VicRp 39; [1980] VR 401, R v Brow [1981] VicRp 75; [1981] VR 783 and R v Bonollo [1981] VicRp 63; [1981] VR 633.

38 The instructions of the learned judge were in accordance with settled practice in this State and in particular, with R v Fitzgerald [1980] Tas R 257, Peters v R [1998] HCA 7; (1988) 192 CLR 493 and Macleod v R [2003] HCA 24; (2003) 214 CLR 230. In Fitzgerald at 262 and 264, Crawford J held that for the purposes of the crime of stealing under the Criminal Code, a jury should be instructed that the question of dishonesty goes to the state of mind of the accused person, that the jury should apply the current standards of ordinary decent people and that it was not a question of whether or not the accused person believed that he was being honest or dishonest. In dealing with the meaning of dishonesty in Peters, Toohey and Gaudron JJ at 501 - 502, considered the tests in R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053 and R v Salvo (supra) and affirmed a test in line with that of Fitzgerald. They agreed with the first part of the Ghosh test, which required the jury to be satisfied that the acts in question were dishonest according to current standards of ordinary decent people, but rejected the second part, which required that the accused must have realised that the acts were dishonest by those standards. They regarded the test in Salvo as arising out of an interpretation of a statutory provision which used the word "dishonest" in a special sense. The provisions of the Criminal Code of this State are different from those of the Victorian legislation. In Macleod (supra) at 245, Gleeson CJ, Gummow and Hayne JJ adopted the reasoning of Toohey and Gaudron JJ in Peters. They said:

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39 Legislation may use the word in a special sense, one that is different than the usually preferred one. There is no justification for thinking that the word is used in a special sense in the Code. This Court should affirm the direction settled for this State by Fitzgerald and which is in accordance with Peters and Macleod. No error was made by the learned trial judge when he applied it.

40 In reminding the jury of Mr Tapping's evidence, the learned judge referred to his evidence about investors' funds generally being held by Tappings and about how, at first, they were applied by way of loans secured by specific mortgages, but later the funds were pooled and loans were made out of mixed funds. His Honour touched on Mr Tapping's evidence that some of the money the company controlled was investors' funds and some of it represented management fees to which the appellant and Mr Tapping had an eventual entitlement. The learned judge then said, concerning the Crown's case: "No doubt that Mr Jovanovic, I think on both sides, was owed money by the company, he was owed his management fees, no doubt about that. But you're not entitled to go and use your investors' money to repay a debt, you stand in the queue, you don't touch their money, you take it from profits not from their money. That's the purpose of his evidence we've been given here." That statement was not specific to any count, but was part of a summary of Mr Tapping's evidence about the operations of the company, the application of investors' funds and the recovery of management fees out of funds held by the company.

41 It was submitted by counsel for the appellant that by saying what he did, the learned judge "totally undermined the direction on dishonesty" because whatever the consequences may have been under civil law, it would not have been dishonest on the part of the appellant or Mr Tapping to apply funds held by the company under a belief that there was an entitlement to the money by way of management fees owing by the company to them. This aspect of the ground of appeal is based on a misunderstanding of what the learned judge was saying to the jury. His Honour was not directing the jury on matters of law. He was merely summarising aspects of Mr Tapping's evidence and explaining why the Crown had called it and relied on it. What was said in no way undermined the directions about the need for proof of dishonesty on the part of the appellant.

42 It was argued for the appellant that an error occurred by reason of the failure of the learned judge to direct the jury that if they could not exclude the reasonable possibility that the appellant believed he was entitled in law to deal with funds in the manner in which he dealt with them, his conduct would not have been dishonest and he would have to be acquitted. There is no merit in the argument. Concerning counts 1 and 2, the learned judge made it clear to the jury that the defence case was the appellant was not acting dishonestly because he believed he was owed management fees and did not realise that the monies in question belonged to investors. Concerning count 4, the learned judge made it clear to the jury that the defence case was that there was no dishonesty, that the appellant was acting with the interests of the investors at heart and on the best advice he had, which included that it was not inappropriate to lend investors' funds on a second mortgage. Further, the appellant did not seek the direction at the trial.

[40]

45 The point in issue was not raised at the trial. The jury were directed, in the terms of s231(1), that a person who receives any money with an express or implied direction that it shall be applied to a particular purpose, in violation of good faith and contrary to that direction, dishonestly applies the money, or any proceeds of it, to any other purpose, is guilty of stealing. In light of that direction, it may be said that on each count, the learned judge left for the jury's consideration whether the appellant was guilty of stealing because he received money from investors, with the direction that it be applied to loans secured by first mortgage, and in violation of good faith and contrary to that direction, he dishonestly applied the money to another purpose. His Honour did not expressly direct the jury that if Tappings received an investor's money, and the appellant was a director of Tappings, he also received the money for the purposes of s231(1). However, his Honour gave that direction implicitly when he instructed: "Any person - well we know that Mr Jovanovic was a director of a company - who receives any money ..., well we know that money was paid in, with a direction ...".

46 It was submitted for the appellant that the direction was flawed because on the evidence, it was the company that received investors' funds within s231(1) and not him. It was argued that while he, as a director of the company, may have had certain duties with respect to investors' funds, a finding that he received the money with a direction, as required by s231(1), was not open and that the monies he relevantly received were received by him from the company without the required direction and not from investors. In the case of count 1, the allegedly misapplied monies were in the form of a cheque from a borrower who was repaying a loan to the company that had been made out of investors' funds. In the cases of counts 2 and 4, the allegedly misapplied monies were in the form of cheques drawn by Mr Tapping on the company's bank account. Counsel for the appellant submitted that s231(1) is directed at embezzlement and would apply if an employee or director of a company received money with a direction to pay it to the company but instead dishonestly applied it to some other purpose, such as his or her own.

47 On the other hand, counsel for the Crown submitted that the word "received" in s231(1) should be interpreted as having a wider connotation than physical receipt, that funds received by the company were also received by the two directors, the appellant and Mr Tapping, and that the appellant received the monies in question by virtue of them coming under his control. It was further submitted that the relevant receipt need not take place at the same time as the giving of the required direction concerning the application of the monies and that the required direction need not be given to the receiver. For example, it was submitted relevantly to count 1, that at the time the appellant received the $30,000 cheque the original investors' directions applied to the funds it represented.

48 It was held by the Court of Criminal Appeal in R v Grubb [1915] 2 KB 683 at 689 - 690, that a person may receive property for or on account of another person, within the meaning of a statutory provision equivalent to the Code, s229, notwithstanding that the property is not delivered to him directly by the owner and that in fact the owner does not know of his existence and has no intention of entrusting the property to him. In that case an appeal against conviction was dismissed in circumstances where an accused person had once been a director of a share broking company and he had controlled its day to day operations at all material times. Clients had sent monies to the company with directions that they be applied in the purchase of stock for the clients. The monies were paid into the company's bank account and were then misapplied. There was abundant evidence that the material acts relative to the monies were done by the direction of the accused. One of his defences was that the monies were received by the company and not by him and that they were fraudulently converted by the company and not by him. The defence was rejected. The court said that if an accused person obtained or assumed control of the property of another person under circumstances whereby his receipt became the receipt for or on account of another person, and he fraudulently converted it or its proceeds, then he had committed the offence. The statutory provision that the accused must have received the property might cover the receipt at any time by a person who receives the property for or on account of another. At 690 the court said that "if the company was used by his directions as the instrument to enable him in the name of the company to become possessed of the property and by means of the company to convert it fraudulently to his own use or benefit, he would be guilty of an offence". What was said in Grubb may be applied equally to the provisions of s231(1), which requires the receipt of money or other property by the accused person with a direction for its application to any purpose and a dishonest misappropriation of it.

49 Grubb's case was applied by the Court of Appeal in R v Prast [1975] 2 NZLR 248, which involved a statutory provision equivalent to that of s231(1). The charges concerned investors who, upon reading a company's advertisement and receiving a letter from the company, paid monies to the company with a direction that they be applied by payment into the company's investment account until they had been secured by way of motor vehicle lease assignments. A particular attraction for investors was a promise by the company of 10 per cent per annum interest. The accused was a director and principal shareholder of the company and was alleged to have misappropriated the proceeds of cheques sent in by investors. At 252 - 253, the court said:

[42]

50 Grubb's case was also considered a sound authority by the High Court in Stephens v R [1978] HCA 35; (1978) 139 CLR 315, a case that concerned a charge under a statutory provision similar to the Code, s229(1)(a), and in which the indictment alleged that the accused person had been entrusted with the money of other persons, rather than that he had received them, in order that he apply or pay the proceeds in accordance with an agreement. At 318, Barwick CJ noted that the accused was one of two directors and shareholders and he had the capacity to exercise the powers of the company. His Honour continued: "No distinction has been sought to be raised either at the trial or in the appellate proceedings between the company and the applicant. He has been treated as completely identified with the company. But, in any case, the distinction between the company and the applicant would in the circumstances of the case have no consequence: see R v Grubb (supra); Reg v Prast (supra)." At 332 - 333, Gibbs J also indicated approval of Grubb. See also Morter (1927) 20 Cr App R 53.

51 The particulars to each of the charges in the indictment allege that both the appellant and Mr Tapping, being directors of Tappings, stole monies that were the property of persons who had made deposits of monies to them and the company with the direction that those monies were only to be applied by way of loans secured by registered first mortgages to persons purchasing real estate, by dishonestly applying the monies, in the case of counts 1 and 2, for the purposes of the appellant, and in the case of count 4, for the purpose of a loan to Stantons, without securing a loan by registered first mortgage.

52 Relevant to all counts, the evidence included the following. The appellant and Mr Tapping were the directors of the company. The investors came from Mr Tapping's tax clients and from advertisements placed by the company that sought investors. The appellant assisted in attracting investors by placing advertisements in a newspaper. Initially the advertisements contained his telephone number as a point of first contact, but subsequently it was replaced by Mr Tapping's telephone number because he ultimately dealt with all of the investors. Having them deal first with the appellant was deemed unnecessary. Presumably, some of the earlier investors came to Mr Tapping and the company after making their first contact with the appellant. All of the borrowers were introduced to the company by the appellant. He made some form of preliminary assessment of them and then referred them to Mr Tapping, who made a more comprehensive assessment of their capacity to service the intended loans and of the value of the properties that were proposed as securities for the loans. The appellant was paid a fee for introducing borrowers. When investors' funds were received, Mr Tapping initially deposited them in an account with Tasmanian Trustees. Early on, a particular investor's funds would be lent to a particular borrower, but at some time the investors' funds were pooled. Mortgages were prepared by the appellant's wife, who was a solicitor. The company was named as the mortgagee and not individual investors. When a borrower repaid a loan the funds were paid back into the Tasmanian Trustees account with a view to lending them to another borrower. The company also had an account with the Trust Bank, into which were deposited payments of interests by borrowers. Interest was paid by borrowers at a greater rate than investors received. For example, at one time borrowers paid 13 per cent per annum interest but investors were paid only 8 per cent per annum. The difference was treated as a management fee and, after expenses and other allowances, was divided equally between the appellant and Mr Tapping. If a borrower defaulted or delayed in making a payment of interest, the company would nevertheless pay investors their interest entitlement. That caused financial difficulties to be suffered by Tappings and it arranged a bank overdraft which was secured by way of floating charge over its assets. Those financial difficulties also brought about the appellant and Mr Tapping not being able to receive income from the company, either in the form of director's fees or management fees.

53 Most of the operations of the company were handled by Mr Tapping. He dealt with the investors and interviewed all of the borrowers. He obtained valuations of properties. He personally attended to the company's bookwork. He was the accountant. He was the only signatory on the company's accounts. It seems likely that he attended to all of the banking. He worked in the company's office, whereas the appellant worked out of a separate office of his own, from which he conducted his own finance or mortgage broking business. He only helped Mr Tapping occasionally with administrative work when, in Mr Tapping's words, "I got bogged under".

54 As to count 1, on the evidence it was open to the jury to find that the cheque for $30,000 was a repayment of principal by a borrower, Dare; that the sum, or at the very least some of it, belonged to investors (a Mrs Dawson according to Mr Tapping's evidence); that as the appellant well knew, investors entrusted their funds with the company upon an agreed basis that they would be applied only to loans secured by first mortgages; that in all the circumstances (and applying the wording of s231(1)) the funds of the investor or investors to whom the $30,000, or part thereof, belonged, had been received by the company with a direction, express or implied, that they be applied only to such loans; and that in violation of good faith and contrary to that direction, the appellant (and Mr Tapping) dishonestly applied the money to the appellant's own purposes.

55 If all of those questions were answered in those ways then, for the purposes of this ground of appeal, the question remains, was it open to the jury to find, in the terms of s231(1), that the appellant received whatever part of the $30,000 belonged to investors, with that direction. Having regard to the authorities to which I made reference earlier, it was open to the jury to make that finding. The jury would have been entitled to conclude that the fact that the investors in question may not have known the appellant and may have had no intention of trusting their funds with him, did not assist the appellant, and that it made no difference that the "direction" concerning the application of the funds was made to the company and not to him personally. It was open to the jury to think that the distinction between the company and the two directors had no consequence, in the circumstances of the case. Investors' funds were subject to the control of the directors and by their joint decision the cheque for $30,000 was made over to the appellant and applied by him for his own purposes.

56 It was therefore open to the jury, as a matter of law, to find the appellant guilty of count 1 and, for similar reasons, of counts 2 and 4.

57 However, it was also submitted by counsel for the appellant that the summing up was erroneous and inadequate to convey to the jury the issues they had to decide and, with respect to the learned judge, I agree. On all of the counts a number of factual issues arose, which included whether the appellant received the funds in question with a direction, express or implied, that they be applied for the intended purpose. What the learned judge instructed the jury about that issue was: "Any person - well we know that Mr Jovanovic was a director of a company - who receives any money ..., well we know that money was paid in, with a direction ...". Far more instruction than that was needed, having regard to the authorities to which I referred. It was erroneous merely to make the jury believe that because he was a director of a company that received money, he also received it.

58 The judgment of the Court of Appeal in R v Reisterer [1962] NZLR 1040 amply explains that it was a question of fact for the jury whether the appellant had relevantly received the funds in question, in the sense required by s231(1). That case concerned a statutory provision, the Crimes Act 1961 (New Zealand), s242, which was similar to s231(1) in that it required that to be guilty of theft the accused person must have received money. It differed, but not materially for the purposes of this appeal, in that it required the receipt to be on terms requiring payment of the money to some other purpose and a fraudulent omission, on the part of the accused person, to make that payment. The Court of Appeal discussed the effect of Grubb's case and at 1044 said:

[46]

60 The ground is relevant to count 4 which concerned the making of an advance of $100,244 to Stantons on or about 13 January 1997. It was the Crown's case that some or all of that amount belonged to investors.

61 It was Mr Tapping's evidence that the company did not have enough funds, apart from investors' funds, to lend that amount to Stantons. His evidence was that a man called Luck had borrowed capital sums totalling $290,000 which were secured by mortgages over four titles. Mr Luck was substantially in arrears with payments due under the mortgages and a solicitor's services were needed to recover what he owed by way of capital and also interest. Mr Tapping's evidence was that on 5 December 1996 Luck paid $300,000 to Tappings and in exchange three of the titles were released from their mortgages. A mortgage on the remaining title was retained. Presumably more than $300,000 must have been owing from Luck at the time.

62 A statement of Tappings' account with Tasmanian Trustees shows that the $300,000 was deposited into the account on 5 December 1996. There had been only $953.46 standing to the credit of Tappings immediately before that deposit and the payment by Luck increased the credit to $300,953.46. The appellant's counsel put to Mr Tapping in cross-examination that in fact Luck paid $390,000 and not merely $300,000. As I understand it, counsel was suggesting that $100,000 in interest and fees was paid by Luck, over and above the capital amount of $290,000 that he had borrowed, which resulted in sufficient funds becoming available for the payment of the loan to Stantons of $100,244 on 13 January 1997 without resorting to funds that belonged to investors. Because of the company's practice of paying interest to investors, whether or not borrowers had paid interest to Tappings, all of that $100,000 might have been money to which Tappings was entitled and not the investors. Mr Tapping disagreed about the payment of a further $90,000 and was firm that the amount paid by Luck at the time was only $300,000. He was supported in that by the Tasmanian Trustees statement of account which recorded the deposit of $300,000 exactly and by an entry in a receipt journal kept by Tappings which recorded the deposit in the amount of $300,000. Counsel then drew attention to the borrower's journal kept by the company, which recorded for 5 December 1996 "701021 Luck Sundry Credit 93025.65", and put to Mr Tapping that it represented a payment by Luck that was additional to the $300,000 he had paid the same day. (If that was so, surely it would have been expected that counsel could point to a separate entry in that journal for the $300,000, but he did not do so.) The learned judge then intervened and drew to counsel's attention an entry, a few lines further down the journal, that recorded for the same date "701022 Luck Sundry Credit 206974.35" and pointed to the fact that the two amounts, 93025.65 and 206974.35' added up to 300,000 exactly. His Honour then added "I thereby rule". Counsel and Mr Tapping accepted that his Honour's addition was correct. Mr Tapping repeated that Luck had paid $300,000 and not $390,000, adding that "it was $10,000 more than the original loan". The appellant's counsel did not take the matter further with Mr Tapping.

63 It was initially submitted to this Court by counsel for the appellant that the learned judge erred in saying what he did and in making his "ruling". Counsel for the Crown submitted that his Honour was merely being flippant and the appellant's counsel conceded that was probably so and that par(a) of this ground must fail. Nevertheless, he submitted that the learned judge erred by failing to draw to the jury's attention two other pieces of evidence that supported the attempt by the appellant's counsel when cross-examining Mr Tapping to show that Luck repaid an additional $90,000. The first was a note made in the journal immediately after those credits for 5 December in terms "Bal 93223.10 1st mortge loan 67000 bal 2nd mtge" and the second was the following page of the journal for January 1997 which recorded "701022 Sundry Credit Bal H/L 93233.10" followed in the next line by "701021 Sundry Debit Int Rate 13¾% 93233.10". It was also submitted that the learned judge should have left as an issue of fact, for the determination of the jury, whether Luck repaid $300,000 or $390,000, but failed to do so.

64 An obvious weakness in the submission is that there was no evidence that any amount other than $300,000 was paid by Luck into an account of Tappings, and certainly not $93,223.10, which could have been a source of the subsequent payment to Stantons of $100,244. Further, my reading of the journal entries for January 1997 is that borrower's account number 701022 in the name of Luck was credited with $93,233.10 which was taken by way of journal transfer from borrower's account number 701021 in the name of Luck. They were journal entries recording transfers between internal accounts of the company and not records of payments by Luck.

65 No errors were made by the learned judge when he failed to deal with these matters in his summing up. The appellant's counsel did not raise them in his closing address either, no doubt because it was not the appellant's case that they could assist him.

[55]

72 The learned judge then instructed the jury that they were not a committee and continued: "You should arrive at your own decision, you should each arrive at your own verdict, so therefore the testing of any doubt lies within your own conscience, your own heart and your own mind."

73 At par19 Cox CJ, with whom Evans J agreed, criticised the direction because it breached the established rule forbidding a direction that jurors should subject a doubt that they may have to a process of analysis or evaluation in order to determine whether it is reasonable. R v Pahuja (1988) 49 SASR 191 at 195; Krasniqi v R (1993) 61 SASR 366 at 373. His Honour held that "the learned trial judge's charge in this case unfortunately did, in my view, invite analysis by the jury of any doubt they might entertain" and, in the words of King CJ in R v Wilson (1986) 42 SASR 203 at 207, that it had "a dangerous tendency to produce in the minds of the jurors an impression that a view held by them that there is a doubt about guilt is to be disregarded unless it passes some further test; that there must be some particular degree of doubt or even that a slight doubt is to be disregarded". Cox CJ continued: "The subjection of any doubt they entertained to a process of testing for its reasonableness was further invited by his Honour's observation that 'a reasonable doubt is something which you must examine' and by the admonition that as each juror should arrive at his or her own verdict 'the testing of any doubt lies within your own conscience, your own heart and your own mind'."

74 Underwood J, with whom Evans J also agreed, held at par63 that it is not an error of law merely to elaborate on the expression beyond reasonable doubt, but it is undesirable to do so because elaboration invites error; it is for the jury to determine what is a reasonable doubt; and it is an error of law to direct the jury that they should analyse a doubt that they consider is a reasonable doubt. At par64 and 65, Underwood J had no criticism of that part of the impugned direction which instructed the jury that a doubt was something they would feel and know if they had one and that as responsible citizens they would know in their own hearts and minds what was reasonable, although with respect, such statements are unnecessary in my view. At par68, Underwood J held that fundamental errors occurred when the trial judge instructed the jury that "a reasonable doubt is something which you must examine" and that "the testing of any doubt lies within your own conscience, your own heart and your own mind". His Honour concluded that authorities made it clear that the jury must not be told that they should analyse or examine what they consider to be a reasonable doubt.

75 The subject returned to this Court in W v R [2006] TASSC 52; (2006) 162 A Crim R 264 which was decided on 30 June 2006, after the summing up in this case. The President of the Court, Slicer J, was the judge under appeal in Graham v R and this case. At par17, after considering some authorities, including the critique of Underwood J in Graham v R, the learned judge advanced the following as a model direction (once again I have numbered sentences):

[59]

77 The views of the judges in W v R that I have been discussing, were obiter dicta. Blow J's criticism of Slicer J's model was only of sentence (4): "So if you have a doubt about the guilt of the accused and you could honestly say to yourself that you consider the doubt to be reasonable in all the circumstances, then you acquit." However, the direction that was attacked in that case passed the scrutiny of all members of the Court, and it included a sentence which was open to question in the same way: "If you have considered all the evidence however and you have a doubt in your mind as to his guilt and having regard to the evidence that you've heard you believe that doubt is quite a reasonable one he's entitled to the benefit of that, there's no question about that." It is difficult to understand why that was acceptable if the President's sentence (4) was not. Further, in Graham v R (supra) at par65, Underwood J, with whom Evans J agreed, was content with a direction that said: "So if you have ... a doubt about the guilt of the accused and you can honestly say to yourself that you consider the doubt is a reasonable one in all the circumstances, then you'll acquit."

78 If judges confined their directions to the traditional formulation, that is to say that accused persons are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt, none of these problems would arise. In this case difficulty has arisen because, it is argued, the trial judge's directions suggested a two-stage process rather than one, that is to say, consideration of whether there was a doubt and then a consideration of whether it was a reasonable one. The difficulty was created not only by sentence (4) but by sentences (2) and (3) as well. In fact, if all four sentences had been omitted from the summing up, no problem would have arisen. There was no need for them at all.

79 I accept that juries should not be instructed or invited first to consider whether they have a doubt and, if so, to analyse or scrutinise that doubt and decide whether it is a reasonable one. However, the directions of the learned judge in this case did not go as far as that. There is no real difference between a reasonable doubt and a doubt that is a reasonable one. Both expressions say the same thing. The direction went close to offending settled law but did not quite do so. At other points in the summing up, the learned judge consistently referred to the need for proof beyond "reasonable doubt". On only one occasion did his Honour refer to a doubt that is a reasonable one. When considered as a whole, the directions clearly stated the standard of proof in criminal trials and did not amount to an error of law.

[83]

88 Whilst it was open to the appellant on his trial to put in issue his receipt of the money in question, he did not adopt that course. For the purposes of s231(1), a person may receive money if that person has obtained or assumed control of the money notwithstanding that it was not delivered to that person directly and that it was initially received by another entity. The authorities for this proposition relate to a number of different statutory provisions, not all of which are in similar terms to s231. See R v Grubb [1915] 2 KB 683 at 689, Stephens v R [1978] HCA 35; (1978) 139 CLR 315, Gibbs J, agreed with by Jacobs and Murphy JJ at 332 - 333, Mumford v R (1989) 61 NTR 1 at 6 - 7, R v J an unreported decision of the Court of Criminal Appeal of New South Wales, CCA 368 of 1986 dated 11 June 1987, R v Goodall (1975) 11 SASR 94 at 111 - 112, R v Prast [1975] 2 NZLR 248 at 251 - 253, R v Reisterer [1962] NZLR 1040 at 1044 - 1045, R v Gilbert [1953] SASR 163 at 167 and R v Cuffin (1922) 127 LT 564 at 565. As demonstrated by Stephens v R (supra) at 318, in cases of this nature it is not unusual for an accused to fail to raise any distinction between him or herself and the entity, usually a company, that first received the money; see also R v Cuffin (supra) at 565 - 566. The appellant in this case identified himself and Mr Tapping with D W & I M Tapping Pty Ltd, the initial recipient of the money and did not relevantly seek to distinguish himself from that company. There was a forensic reason for the course the appellant adopted. In defence of counts 1 and 2 he contended that the money paid to him that was the subject of those charges was due to him in respect of management fees derived from the investment money. The management fee was the difference between the interest collected from a borrower and the interest paid to an investor. The net difference was divided equally between the appellant and Mr Tapping. In the course of his closing address to the jury, counsel for the appellant adopted evidence from Mr Tapping which counsel summarised as follows:

[87]

89 The trust deed in fact only entitled the company to receive remuneration and made no reference to remuneration for the appellant or Mr Tapping. However, in the above passage, counsel for the appellant did not distinguish the appellant and Mr Tapping from the company and linked their entitlement to receive "their money" to their control over those funds. As to that control, counsel said that the funds were "on trust and must be protected by those men", that is, the appellant and Mr Tapping. This was a clear acknowledgment that the funds were controlled by the appellant and Mr Tapping and in consequence had been received by them.

90 Counsel for the appellant on this appeal has ably advanced the appellant's case and has provided real assistance to the Court. Nevertheless, it is fair to categorise the appeal as an "armchair appeal", that is, an appeal where counsel not involved in the trial has gone through the trial record looking for grounds of appeal, in some instances, without regard to the manner in which the trial was conducted, Fordham (1997) 98 A Crim R 359, Hunt CJ at CL at 361. It has not been suggested that the appellant's trial counsel was incompetent. Accordingly, unless there is reason to conclude otherwise, it should be inferred that he conducted the trial as he did for good forensic reasons. He did not request the learned trial judge to revise or expand on the directions his Honour gave the jury on the element of the appellant's receipt of the money in question. It is pertinent that the morning after his Honour gave the direction that is the subject of this ground, the appellant's trial counsel raised with his Honour a number of matters referable to his Honour's summation to the jury. One of these matters was the question of consciousness of guilt which is referred to in Crawford J's reason for judgment [19]. Counsel also made submissions to the learned trial judge on the interpretation of the Code, s231(1), and a direction he sought as to the jury being satisfied about whether any part of the funds that were taken as alleged in a count were investors' funds. As the appellant's counsel did not take this opportunity to query in any way the direction that had been given by his Honour in relation to the appellant's receipt of the money in question, it is reasonable to infer that the direction was consistent with the appellant's case. Of course, the acquiescence of the appellant's counsel at trial to this direction does not put an end to the contention in question if there has been a miscarriage of justice. However, the manner in which the appellant's counsel conducted the trial and his acquiescence to what transpired is relevant to whether there has been a miscarriage of justice. I adopt what was said by Eames JA, agreed with by Vincent JA and Ashley AJA in R v Ibrahim [2003] VSCA 180; (2003) 7 VR 141 [50]:

[92]

"Now I want to give you first of all some general directions in law, they're fundamental to every criminal trial. The first is called the presumption of the innocence. An accused person is deemed to be innocent unless and until you, the jury, are satisfied beyond reasonable doubt as to that person's guilt. So if you are not so satisfied, the presumption of innocence remains and that person is not guilty. You do not choose, and you are not asked to choose, between guilt on the one hand and innocence on the other. The question for you is what lawyers called a closed question, you only get half of it in a sense. Are we satisfied beyond reasonable doubt that the accused is guilty? If the answer is yes, we are so satisfied then the verdict is guilty. If the answer is no, we're not so satisfied beyond reasonable doubt the question ends. ...

Now the second direction flows from that first one. Given the presumption of innocence, it follows that the Crown or the State, has the responsibility or burden of proof, of proving the guilt of the accused beyond reasonable doubt. It's a simple proposition. If you allege something then you are required, or have the obligation to prove it. So, in a case such as this, the burden of proof lies fairly and squarely with the prosecution. Indeed, an accused person may remain completely silent, or uninvolved or unengaged in the trial, if that person chooses, it wouldn't alter the responsibility of the Crown to prove the guilt to your satisfaction. It must prove its case beyond reasonable doubt.

Now it's dangerous for me to try and explain that concept in too much detail. A doubt is something which you'll feel and know if you have one. As responsible citizens you'll know in your own heart and mind what is reasonable. So if you have a doubt about the guilt of the accused and you could honestly say to yourself that you consider the doubt is a reasonable one in all the circumstances, then you'll acquit.

Now I spoke about bringing twelve people together and sharing their collective life experiences and wisdom as part of the deliberations. But you're not a committee to reach a general feeling, you work together, you share your views, you remind a fellow juror, perhaps, of something that they've overlooked or that you regard as more significant. You might challenge in the course of your deliberations the view of another juror and say, but if you think about this etcetera, that's how you work, that's the strength. But you're not a committee. You don't just go with the majority. So the verdict is for each of you. So when you come to the question of a reasonable doubt, it's whether you have it within, not how the majority are going and they're all reasonable and good people and so on and I share, but have I a reasonable doubt within."

[116]

101 In that case [115] Blow J, with whom I agreed, disagreed with the general direction proposed by Slicer J and singled out the final sentence as inviting a jury to first consider whether it has a doubt and then, if it does, to scrutinise that doubt and decide whether or not it is a reasonable one. At [79] I said that a direction that invites a jury to analyse a doubt for reasonableness is to be eschewed. What I should have then said, and now do say, is that consistent with the authorities already referred to and the further authorities I will cite, the concept "beyond reasonable doubt" should be put to the jury without any embellishment unless something has been said by counsel, or the jury asks a question, which warrants elaboration or explanation of the concept beyond the conventional direction. The further authorities I cite are: Ho [2002] NSWCCA 147; (2002) 130 A Crim R 545 at 551, R v Collins [1999] QCA 27 at [9], Krasniqi v R (1993) 61 SASR 366 at 372, R v Neilan [1992] VicRp 5; [1992] 1 VR 57 at 71, R v Reeves (1992) 29 NSWLR 109 at 117, R v Wilson (1986) 42 SASR 203 at 207, R v Pahuja (1988) 49 SASR 191 at 194 and 220, Keil v R (1979) 53 ALJR 525 and Pryor v R (1969) 49 ALJR 388.

102 The learned trial judge having elaborated on the meaning of "beyond reasonable doubt", the determination of whether that elaboration amounts to a misdirection depends upon an examination of his summation as a whole. There can be a fine line between a direction that improperly invites a jury to analyse doubt for reasonableness and one that does not. Jurors are implicitly invited to assess whether any doubts that they have are reasonable by a direction in the traditional form that before they can convict, they must be satisfied that the elements of the crime have been established beyond reasonable doubt. Insofar as this direction requires each juror to determine whether he or she is so satisfied, it invites each juror to assess whether any doubt that he or she has is reasonable. Patently such a direction is not erroneous. I note that the suggested direction as to the concept "beyond reasonable doubt" contained in the Benchbook in Queensland includes the following sentence: "It is therefore for you, and each of you, to say whether you have a doubt you consider reasonable". I should add that the Benchbook also advises that the suggested direction should only be given where the jury indicates that it is struggling with the concept. See R v Clark [2005] QCA 483; (2005) 159 A Crim R 281 at 288. In this case, sentences [c] and [d] of the challenged direction of the learned trial judge raise the spectre of a juror assessing whether a doubt is reasonable. However, his Honour did not go further and intrude into the jury's function of making determinations beyond reasonable doubt by attributing a particular dictionary meaning to the word "reasonable". What was reasonable was left to the jury. The appropriateness of his Honour's summation ought not be judged by focusing solely upon the four impugned sentences. The summation should be considered as a whole and when that is done, I am satisfied that the jury were not misdirected on the burden of proof. They were repeatedly directed that they must be satisfied of guilt beyond reasonable doubt and the memorandum provided for their use contained two written directions to the same effect.

103 I would dismiss this ground of appeal and I would dismiss the appeal.

File No CCA 28/2005

[117]

104 I have had the opportunity of reading the detailed reasons for judgment of Crawford J in relation to all grounds of appeal and the reasons for judgment of Evans J with particular reference to grounds of appeal 7 and 12. Insofar as they deal with grounds of appeal 1, 2, 3, 5, 6, 8, 10, 11 and 12, I agree with the reasons of Crawford J. Insofar as they deal with grounds 7 and 12, I agree with the reasons of Evans J. Those reasons as to ground 7 clearly differ from those of Crawford J, although those relating to ground 12 include the same conclusion but with more detailed reasons. I would make a brief comment about ground 7.

105 By this ground of appeal the appellant asserted that the learned trial judge erred in "directing to the effect that, because the applicant was a director of the company, he was a person in receipt ...". As Evans J has done, the actual directions given by the learned trial judge needed to be examined. His Honour did refer to the fact that the appellant was a director of the company. However he did not direct that because of that position alone, the appellant had received the funds. His written and oral directions focused on the jury needing to be satisfied that the appellant did receive the funds.

106 The complaint by this ground, as has been identified by both Crawford J and Evans J, is more that the learned trial judge did not, having said what he did, highlight for the jury the factual issues referable to the question of whether the jury could be satisfied the appellant received the funds.

107 The issue now raised on this appeal about whether it was open to the jury to find the appellant had received the funds, by reference to the Criminal Code, s231(1), as opposed to their having been received by the company, was not raised at trial. Counsel on the appeal acknowledged that this may affect the success or otherwise of this ground. Were it an inadvertent failure to raise the issue or a situation where counsel tried to but was ignored, the outcome may be different. However, in this case, the appellant's case at trial was mounted in a certain way. It was not mounted on the basis that the appellant did not receive the funds in the context of s231, but on the basis that the Crown could not succeed unless it could identify that the funds received by the appellant were investors' funds.

108 The impact of that argument was addressed at length by the learned trial judge. If counsel chose not to pursue a particular issue, or not to seek further, more detailed, directions when an opportunity to do so was available, for what can be inferred to be good forensic reasons, a trial judge cannot be expected to direct the jury about that issue, when, to do so, for example, may adversely impact upon the case an accused is pursuing.

109 I do not pause to repeat reference to the authorities canvassed by Evans J in this regard. As indicated I agree with his views and the reasoning he adopted.

110 In my view ground 7 must fail.

111 In all the circumstances I would dismiss the appeal.

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Judgment (117 paragraphs)

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Cases Cited (25)