MARTINCIC -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 134 (30 August 2019)

(1) Exhibit 68, entitled 'Reimbursement of start up costs', comprised a schedule of 94 payments, totalling $377,685.70. The appellant[9] and Mr Martincic[10] gave evidence that Mr Marusco and Mr Martincic agreed that Mr Martincic should be paid $30,000 per month for his services in starting up M3, and that Mr Marusco directed the appellant to make payments accordingly. The additional $17,000-odd (beyond 12 payments of $30,000) was to reimburse the appellant and Mr Martincic for various expenses they had incurred on behalf of M3.[11]

(2) Exhibit 72, entitled '[Mr Marusco's] commissions paid in error to [Mr Martincic's] [account]', comprised a schedule of 20 payments made, in fact, to one of the appellant's accounts. The appellant gave evidence that she caused these payments, by mistake, to be paid into her account when they were intended to be Mr Marusco's commissions.[12]

(3) Exhibit 79, entitled '[Mr Marusco's] [payments] for his house build', comprised a schedule of nine payments paid into one of the appellant's bank accounts. The appellant gave evidence that Mr Marusco had instructed her to pay various invoices issued by private suppliers for his home build, on account of his director's fees.[13] In that context, she was told that payments made to Mr Marusco, and his suppliers, on account of his director's fees, should then be equalised by the making of payments to Mr Martincic.[14] The payments in exhibit 79 were made for this purpose. Exhibit 78 was her calculation of payments that had been made to each director, which then needed to be equalised.[15] The appellant's evidence on this topic was of conversations she had with Mr Marusco,[16] although she mentioned Mr Martincic once.[17] When the process was complete, she told Mr Marusco she had 'had a gutful' of trying to balance the payments and would not continue to do it, given how difficult the process had been.[18]

(4) Exhibit 75, entitled '[Mr Martincic's] site supervision [payments]', comprised a schedule of 28 payments. The appellant[19] and Mr Martincic[20] gave evidence that, in the appellant's presence, Mr Marusco (1) requested Mr Martincic to provide site supervision services, as M3 had incurred excessive costs in relation to site supervision, and (2) agreed that Mr Martincic would be paid $12,000 per month. The appellant did not make payments at $12,000 per month, but 'in random amounts'.[21] Both the appellant[22] and Mr Martincic[23] gave evidence that Mr Marusco instructed the appellant to enter false payment descriptions so as to avoid tax and superannuation obligations.

(5) Exhibit 73, entitled '[Mr Martincic's] car running costs reimbursement', comprised a schedule of nine payments. The appellant[24] and Mr Martincic[25] gave evidence that, in a discussion in the appellant's presence, Mr Marusco and Mr Martincic agreed that Mr Martincic should be reimbursed his car running costs, given that he was using the car to attend at sites in order to provide site supervision services to M3.

(6) Exhibit 86, entitled '[Mr Martincic] and [Mr Martincic's son Jesse] [payment] for cabinetry', comprised a schedule of two payments made to Mr Martincic's account. The appellant[26] and Mr Martincic[27] gave evidence that these two payments were payment for Mr Martincic and his son's labour in installing, at Mr Marusco's request, some cabinetry at a house M3 was building. The appellant gave evidence that Mr Marusco instructed her to process the payments under fictitious invoices.[28]

(7) Exhibit 74, entitled '[Payment] for Hummer', comprised a schedule of one payment made to the account of the vendor of the vehicle. The appellant[29] and Mr Martincic[30] gave evidence that, because Mr Martincic was to provide site supervision services to M3, Mr Marusco agreed, in discussions in the appellant's presence, that Mr Martincic would be given a 'car bonus', which Mr Martincic ultimately used to buy the Hummer.

(8) Exhibit 71 comprised a schedule of 22 payments made to one of the appellant's accounts. The appellant[31] and Mr Martincic[32] gave evidence that it was agreed between Mr Marusco and Mr Martincic that the appellant should be paid for her accounting and bookkeeping services to M3 by the making of these payments.

1. Another aspect of the defence case was that the (admittedly) false payment descriptions that the appellant entered in the accounts for each payment were done at the direction of the directors, whose purpose was tax evasion.[33] As outlined above, it was the evidence of both the appellant and Mr Martincic that Mr Marusco, not Mr Martincic, so instructed the appellant. Defence counsel described the narration of false invoices as 'a core practice of M3'.[34]
2. We will say more as to the defence case, as articulated in defence counsel's closing address to the jury, in dealing with ground 1 of the appeal.

1. The trial judge began with directions of general application, including as to legal principles. No issue was taken with those directions and nothing need be said about them.
2. The judge then gave a number of directions about the law relating to, and the elements of, the charges set out on the indictment. His Honour also provided the jury with a document entitled 'jury handout', to be used in conjunction with, and not as a substitute for, his oral directions.[35] The terms of the handout reflect things said in the oral directions.
3. The judge told the jury that it was not in doubt that the property identified in the count was the property of M3, and that the appellant admitted, for each count, that she was responsible for the transfer of the relevant amount.[36] The judge told the jury that the third element - that the appellant took the money fraudulently - was the critical issue. In that respect, the judge told the jury they must be satisfied that the money was taken without the consent of the owner and that the taking was done fraudulently.[37]
4. We will detail the judge's direction concerning whether the money was taken without consent in the course of dealing with ground 2.
5. As to whether the taking was fraudulent, the judge told the jury that it was sufficient for them to be satisfied beyond reasonable doubt that the appellant took the money with an intention of (1) permanently depriving the owner of all or part of it or (2) using it at her will, although she may have intended afterwards to repay the money to M3.[38]
6. The judge directed the jury concerning the question of whether the appellant had acted under an honest claim of right and without an intention to defraud in relation to the eighth group of charges, the 22 counts referred to in exhibit 71.[39] There was no complaint concerning the content of that direction. The appellant's complaint, by ground 2, is that a like direction should have been given in relation to all counts.
7. The judge then turned to providing the jury with 'a brief summary' of the competing cases.[40] Before beginning the summary, his Honour commented:[41]

Please bear in mind that when I provide you with a summary of the case you have to decide I'm, obviously, not attempting to repeat everything that [counsel for the State and the defence] said to you in closing, nor am I going to go through all the evidence. Rather my intention is to assist your decision making by giving you a concise summary of the case that you have to decide.

Also bear in mind that I've referred to the position of [the appellant] or the case as she does not have to prove anything. So she does not have a case that she has to prove. It's the State that bears the burden of proving that she's guilty of each offence charged, and doing so beyond a reasonable doubt.

1. The trial judge directed the jury as to the State case in the following terms:[42]

The State's case is that [the appellant] felt entitled to take money out of M3 and did so at a rate of $50,000 a month over the duration of the offences covered in the indictment.

[The prosecutor] invited you to find that Mr Marusco's evidence was honest, accurate and reliable. And he went through a number of reasons why you might come to this conclusion, which I don't need to summarise.

[The prosecutor] invited you to find that there were no conversations between Mr Marusco, Mr Martincic and [the appellant] authorising [the appellant] to make the false payments set out in the indictment. Nor did he authorise [the appellant] to make those transfers using false descriptions.

He invited you to find that there was no discussion by Mr Marusco about evading tax or superannuation. And he reminded you that Mr Marusco is not the one who's on trial in this case.

[The prosecutor] then invited you to find that [the appellant's] evidence was practiced and rehearsed but not true. And he went into the reasons why you might come to that conclusion and, again, I don't need to summarise that. And he went through a number of the payments in detail.

Now, [the appellant] has admitted that she was the author of the payment descriptions in each case. And the State draws your attention to the fact that the description did not match the destination of the funds. And the destination account was either one of [the appellant's] personal accounts, that of Mr Martincic and, as I've said, in one case the Hummer motor vehicle with the description being Jackson McDonald.

So the State places an emphasis on the false payment descriptions. [The prosecutor] described this falsity as being a significant piece of evidence on the issue as to whether the transactions were fraudulent. So using the framework, which I've set out in the jury handout, the State's case has ample evidence from which you can conclude that each payment was not authorised and that each payment was taken fraudulently.

[The prosecutor] also drew your attention to the fact that all the benefit of the transactions in the indictment went to [the appellant] and Mr Martincic, and that Mr Marusco did not receive any benefit from them.

1. The trial judge then directed the jury as to the defence case in the following terms:[43]

Now, the defence case is that [the appellant] had lawful authorisation from Mr Marusco and Mr Martincic to make each and every payment and to do so in the manner in which she did. Now, as I've said a number of times now, [the appellant] does not have to prove anything. So the defence case is more accurately expressed to be that the State has not proven beyond a reasonable doubt that she made each transfer without authorisation and fraudulently.

Now, [defence counsel] went into some detail as to why you should accept the evidence of [the appellant] and Mr Martincic and why you should reject the evidence of Mr Marusco. Now, I don't need to summarise these submissions. Rather, I think, it would be most helpful if I went through the eight groups into which [defence counsel] has divided the counts in the indictment. And they're set out in the various exhibits and I'll give you the exhibit numbers as I go through. But that would seem to me to be the way to summarise the case that would be of most assistance to you.

Now, the first group is the reimbursement of start-up costs to Mr Martincic. And that's set out in exhibit 68 and relates to 94 counts totalling $377,685.70. Now, the first group is the reimbursement of the start-up costs, exhibit 68. Now, both [the appellant] and Mr Martincic gave evidence that, after some negotiation, Mr Martincic and Mr Marusco agreed that Mr Martincic would be paid $30,000 per month to compensate him for the time he spent in setting up the company. So that's the first group.

The second group relates to exhibit 72. That's a number of payments which [the appellant] said comprised commission due to Mr Marusco which she, in error, transferred into Mr Martincic's account. So if we look at exhibit 22 [sic], you'll see that that relates to 20 counts and the amounts total $119,917.30.

The third group relates to exhibit 79. And this is a number of payments which [the appellant] made - or evidence that she made to equalise payments made to Mr Marusco being directors fees paid out under the cover of invoices of Mr Marusco's own house build. So exhibit 79 sets out the nine counts which total $89,739.60.

[Defence counsel] also drew your attention to exhibit 78 and which sets out the payments made to Mr Marusco which, on [the appellant's] evidence, these payments in exhibit 78 were made to attempts to equalise.

The fourth group relates to exhibit 75 and this concerns the site supervision payments to Mr Martincic. Now, [the appellant's] evidence is that Mr Marusco and Mr Martincic agreed - on the evidence of both [Mr Martincic and the appellant -] that Mr Martincic would be paid $12,000 a month for taking over the site supervision role. So the payments relating to that group, as set out in exhibit 75, relate to 28 counts totalling $194,307.33.

The fifth group is set out in exhibit 73 and this relates to reimbursements to Mr Martincic for his car expenses associated with his work supervising sites. So exhibit 73, you'll see that there's nine counts and it totals $11,432.13.

The sixth group arises out of exhibit - or it's summarised in exhibit 86 and it relates to payments to Mr Martincic and his son, Jesse, for carpentry work for the house with the SIPS panel. So exhibit 86 identifies two counts totalling $14,704.42.

The seventh payment is set out in exhibit 74 and this relates to the Hummer. So both [the appellant] and Mr Martincic gave evidence that Mr Marusco and Mr Martincic agreed that the company would pay for a new car to Mr Martincic. And as set out in exhibit 74, this relates to count 107 and is the amount of $41,000.

And the final series of payments - the payments that [the appellant] says she made, pursuant to the two contracts of engagement with M3 and they're exhibits 15 and 16.

Those payments are set out in exhibit 71 and relate to 22 counts, with the total value of $204,000. So that's exhibit 71, relating to 22 counts with a total value of two thousand - $204,000.

Now, the defence counsel [sic] is that the State has not proven that these payments were not authorised, pursuant to the two employment contracts.

Even if the State does prove this, the defence case is that the State has not proven beyond reasonable doubt, that the payments were not made in the exercise of honest claim of right and without an intention to defraud.

1. The trial judge concluded his directions by instructing the jury as to how they may use the transcript of evidence provided to them, and how they may go about their deliberations and verdicts.[44]

Ground 1

There was a miscarriage of justice when His Honour failed to adequately sum-up the defence case and direct the jury as to matters relevant to the defence.

Ground 2

There was a miscarriage of justice when, in relation to the convictions entered (other than the 22 counts the subject of exhibit 71), His Honour failed to leave for the jury's consideration the defence of honest claim of right pursuant to section 22 of the Criminal Code.

1. The question of leave to appeal was referred to the hearing of the appeal.[45]
2. We begin with ground 1.

Ground 1: did the judge's summing up cause a miscarriage of justice? Appellant's submissions

1. Ground 1 asserts that the judge's failure to adequately sum up the defence case gave rise to a miscarriage of justice.
2. The appellant submits that a miscarriage of justice arose from the judge's failure to mention, in his summing up, the following aspects of the defence case:[46]

(1) The mistakes that the appellant made in the course of her work and the amount of transactions and multitude of accounts she was dealing with.

(2) Mr Marusco's lies and poor memory, recollection or recall when it suited him.

(3) The use of the 'slush account' by Mr Marusco to evade tax, which was out of the appellant's control.

(4) The appellant challenged the assertion by Mr Marusco that she deleted the Google Drive when she was locked out on 6 May 2016.[47] Instead, she stated that she deleted all her personal files remotely, which defence counsel said any reasonable sensible person who wanted to protect their personal information when leaving an organisation would do.

(5) The appellant properly handed over the outstanding invoices and passed along information to another employee of M3 after she was locked out from M3.

(6) According to Mr Martincic's evidence, it was always intended that the appellant would be paid.

(7) Mr Martincic received a car, used his personal car to visit building sites and was reimbursed for these running costs. The appellant admitted she made a mistake with this reimbursement and coded it with the payment description 'Officeworks', at which point Mr Martincic told her not to worry about it.

(8) When Mr Marusco became late with payments to his suppliers for his private build, who were also Ambrey suppliers, it had a domino effect on Ambrey.[48] Mr Marusco started to ask the appellant to pay some of the suppliers in lieu of director's payments. The appellant says she tried to equalise the payments but because there were dribs and drabs of supplier invoices, she was doing the best she could to try and equalise what Mr Marusco was receiving to be equal with what Mr Martincic should be receiving.

(9) In relation to the unpaid invoices at the crux of it all, they were related to Mr Marusco's home build and a particular employee of M3, Ms Alicia Compton, was not told about the details in order to protect Mr Marusco's privacy.

(10) Ultimately, the appellant was instructed to put fake invoices through bills, which was a scheme cooked up by Mr Marusco and acquiesced to by Mr Martincic.

1. Consideration of the merits of these submissions requires attention to exchanges between defence counsel and the judge before and after the judge's summing up.

Discussions between defence counsel and the judge, concerning the judge's direction, in the course of the trial

1. Towards the end of the trial, the trial judge discussed with defence counsel, Ms Chong, the way he planned to direct the jury with respect to the defence case. The following exchange took place:[49]

GETHING DCJ:

... I'm conscious in a case like this in terms of summarising it to try and respect the forensic approaches that counsel have taken. And the way I approach summing up the jury is it will be a very concise summary.

So what would assist me is if I can get from both counsel a page, perhaps just a bit more than a page, of the major points that they would like me to highlight and summarise in the case.

Now, Ms Chong, in terms of the defence, my current draft tacks the defence into the exhibits because that seems to me the way it was presented and that seems to be the way the jury will understand it. That if they look at the - that the defence group[s] the charges into, I think eight different categories and each with an exhibit, and so that's the way I've structured the summary.

CHONG, MS: Yes. Yes.

GETHING DCJ: So assume that I'll do that.

CHONG, MS: Yes.

GETHING DCJ: It's just really a question of anything else you want around that.

CHONG, MS: All right. (emphasis added)

1. The following day, the judge asked defence counsel if she had a page of major points which she would like to provide to him for the purpose of summing up the defence case to the jury:[50]

GETHING DCJ: So what I'd do, Ms Chong, is invite you to give me some bullet points.

CHONG, MS: My bullet points?

GETHING DCJ: Your bullet points direct to the court. Well, you don't have to if you don't want to but it's just a question of what I - if you want to give me some bullet points as to the way I summarise the defence case over and above what I talked about yesterday then I'm happy to receive them and I'm also happy in the circumstances for you to provide them without copying them to [the prosecutor].

CHONG, MS: I prefer not to only because your Honour may have gathered from my previous closing addresses I tend to be a bit flowery in my language and I find it - - -

GETHING DCJ: As I'm not. Okay, well, what I'll flag then is that I will, and I'm probably at the other end of the spectrum, I'm naturally quite surgical, I will summarise the defence case around the schedules.

CHONG, MS: Yes.

GETHING DCJ: And I will say that the defence, and obviously with (indistinct) right being dealt with slightly differently, to say, well, the defence case is in essence summed up in the schedules and that there are seven - the response to the charges are grouped, I think it's about eight grounds, in relation to - and they're set out, they parallel the schedules, so in relation to exhibit 5, this is the place, the defence case may, and frame it like that and just summarise the defence case like that.

CHONG, MS: Yes, I'm commenting on the evidence of the witnesses.

GETHING DCJ: Yes, and then leave you to do the colour light and flourish.

CHONG, MS: Yes.

GETHING DCJ: And just do it like that.

CHONG, MS: Thank you.

GETHING DCJ: And that seems to me okay.

CHONG, MS: Thank you. (emphasis added)

1. It can be seen from these passages that the trial judge foreshadowed the approach he intended to take in summarising the defence case. He told defence counsel that he would 'summarise the defence case around the schedules', being a reference to the schedules prepared by the defence and tendered in evidence which set out the eight groups of payments made by the appellant. His Honour informed defence counsel that if she wished him to include 'anything else', it would assist him if defence counsel provided a dot‑point summary of any 'major points'. Defence counsel neither voiced any objection to his Honour's foreshadowed approach nor provided a summary.

Defence counsel's objections as to the judge's summary of the defence case

1. After the jury retired to consider their verdict, defence counsel raised concerns with the judge about the way in which the judge had summarised the defence case to the jury. There was a lengthy exchange between defence counsel and the judge.[51] The exchange may be broadly summarised as follows:

(1) Defence counsel expressed concern that, whereas the judge made comment specifically about Mr Marusco's evidence and the State case, his Honour failed to mention, as elements of the defence case, the honesty, reliability and accuracy of the appellant and Mr Martincic's evidence.[52]

(2) The judge observed (correctly) that, as to both parties' submissions, he had referred to the submissions concerning witnesses' honesty and reliability without summarising them.[53] When asked what else defence counsel would have wished the judge to have said, defence counsel said there should have been reference to at least what the appellant and Mr Martincic had said as to how the payment the subject of each category came to be made.[54] The judge suggested that the defence case had been put at its highest and strongest by providing the explanation, by the defence, of the making of each category of the payment, by reference to the various schedules.[55]

(3) When the judge observed that he was struggling to work out what he should have said, defence counsel observed that she supposed that what she was thinking should have been said were the matters deliberately not raised by the court, evidently the matters going to witnesses' credibility.[56]

(4) Agreeing with this suggestion, the judge observed that if he was going to summarise the defence case as to credibility of witnesses, he would need to do the same in summarising the State case.[57]

(5) The judge observed that, given that the jury's deliberations had just begun, and would be resuming in the morning, defence counsel could draw to the judge's attention anything specific about the nature of the defence case that had not been captured in the judge's summary.[58] Defence counsel responded, 'I will'.[59]

1. Defence counsel did not raise anything further the following day.

1. Section 112 of the Criminal Procedure Act 2004 (WA) provides, relevantly, that in a criminal trial before a judge and jury, 'the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice'.
2. The principles relevant to whether a judge's summary of the defence case gives rise to a miscarriage of justice are well‑known. They were recently summarised in Ruthsalz v The State of Western Australia as follows:[60]

In Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ held that, in a criminal trial before a judge and jury, the judge is not bound, in his or her summing up, to discuss all the evidence or to analyse all the conflicts in the evidence and, by itself, the failure of a trial judge to undertake that task does not mean that a miscarriage of justice will have occurred (560). Their Honours emphasised, nevertheless, that fairness means that ordinarily the respective cases advanced by the State and the defence must be accurately and fairly put to the jury (561). Their Honours then said:

But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused (R v Lowery [No 3] [1972] VicRp 109; [1972] VR 939, at p 948) ... Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (R v Matthews and Ford [1972] VicRp 1; [1972] VR 3, at pp 15 ‑ 16). Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence (R v Davies and Cody [No 2] [1937] VicLawRp 47; [1937] VLR 226, at pp 236 ‑ 237; R v Melville (1956) 73 WN (NSW) 579). Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way (561).

In RPS v The Queen, Gaudron ACJ, Gummow, Kirby and Hayne JJ noted that the fundamental task of a judge in a criminal trial is to ensure a fair trial of the accused [41]. Their Honours then elaborated:

That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case (Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues (Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). It will require the judge to put fairly before the jury the case which the accused makes [41]. (emphasis added)

The adequacy of a trial judge's summing up to the jury will depend on all the circumstances of the case. Those circumstances include the manner in which the State and the defence have conducted the trial and the content and length of the addresses by the prosecutor and defence counsel. A trial judge is bound to refer to and explore the evidence only to the extent necessary in order to ensure a fair trial. A summing up will not be inadequate unless there is a real risk that the trial judge's omission or approach has resulted in a miscarriage of justice. See Carroll v The State of Western Australia; Walsh v The State of Western Australia; Pezzino v The State of Western Australia. (citations omitted)

1. The judge's summing up of the defence case was short. The same is true of the judge's summing up of the State case. In a case involving 186 charges, many judges would have provided a more detailed outline of both parties' cases. However, the question is whether more was required in order to ensure a fair trial, including to ensure that the jurors had the knowledge and understanding of the evidence necessary to discharge their duty. For the reasons that follow, we are not persuaded that the judge's failure to include the matters outlined at [24] above in his summary of the defence case occasioned a miscarriage of justice.
2. Defence counsel's closing address was lengthy, extending over a period of almost two hours. It is, with respect, not easily summarised. The essence of the defence case, reflected in defence counsel's introductory remarks and conclusion, was that the appellant was authorised by the directors of M3 to transfer the sums of money that she did.[61] That essence was captured in the judge's summary. In her closing address, defence counsel made reference to each of the eight groups of offences. As the judge had foreshadowed, without objection, the judge adopted the defence's grouping of the offences, and explained the defence case in relation to each of the eight groups. That was an appropriate approach; the appellant does not suggest otherwise. In our respectful opinion, the judge's summary of the defence case on each group of offences, based on the evidence of the appellant and Mr Martincic and the exhibits, had a clarity and logical structure that was not readily apparent from defence counsel's closing address.
3. There is one aspect of the defence case, not mentioned in the judge's summary of the defence case, that, in our respectful view, it would have been preferable to mention. One plank of the State case, mentioned by the judge in his summary of it, was that the false payment descriptions entered by the appellant, admitted by her in relation to each payment, were strong evidence of her fraudulence. In response, it was the defence case that the false payment descriptions were done at the direction of Mr Marusco. That feature of the defence case, put in answer to a plank of the State case, would, in our respectful view, have appropriately been included in the summary of the State case. However, in our opinion, the failure to so mention this aspect of the State case did not give rise to a miscarriage of justice. In our view, there is no perceptible risk that the jury would have overlooked, or failed to understand, this simple idea, which was a central feature of the defence case and was referred to repeatedly in the addresses of both defence counsel[62] and the prosecutor.[63]
4. Otherwise, defence counsel's closing address canvassed a wide range of disparate considerations. Some explained the defence case for each category of payment, while many others bore on the credibility of the key witnesses and the versions of events they had given. In our view, having read defence counsel's address many times, the selection, among the numerous points made, of which points should have been mentioned by the judge is by no means obvious.
5. The matters outlined in [24] above bear upon the credibility of the respective witnesses, or the credibility of the competing versions of events the witnesses had given. When the judge addressed the jury, they had just heard defence counsel's detailed submissions as to credibility. At the outset of his summary, the judge told the jury that he proposed no more than a conc[64]e summary.64 The judge referred to that aspect of defence counsel's address, reminding the jury of that feature of the appellant's case, while observing that it was not necessary to repeat it. We respectfully agree with his Honour - in our view, it was not necessary to repeat or summarise those aspects of defence counsel's submissions.
6. Both before and after the summing up, the jury invited defence counsel to identify particular points for mention as part of the defence case. On both occasions, defence counsel did not do so. In this regard, what occurred after the summing up is of particular significance. When defence counsel complained of the absence of mention of her submissions concerning the honesty and reliability of the appellant and Mr Martincic, the judge observed that, if this were to be part of a summary of the defence case, a similar summary would need to be given of the corresponding aspects of the State case.[65] No criticism is, or reasonably could be, made of this approach. The judge invited defence counsel to identify, overnight, any particular aspect of the defence case that had not been captured in the judge's summary. The next day, defence counsel did not raise anything further. It must be inferred that, bearing in mind that if a matter the subject of further direction bore upon credibility, the judge would, correspondingly, give similar directions as to the State case, defence counsel was unable to identify any particular aspect(s) of the defence case that had not been, but which should be, referred to by the judge. Generally, parties are bound by their counsel's conduct of the case.[66] Moreover, defence counsel's failure to identify any particular matter for mention is significant given that, as already noted, selection of the matters for highlighting was by no means obvious.
7. For these reasons, while we would grant leave to appeal in relation to ground 1, the ground is not made out.
8. We turn to ground 2.

Ground 2: honest claim of right Appellant's submissions

1. The appellant's submissions concerning ground 2 were put in two ways.
2. The essence of the appellant's written submissions in support of ground 2 is captured in the following introductory paragraphs of those submissions:[67]

Mr Martincic, himself a director of the company, testified for the defence to the effect he authorised certain payments. His Honour told the jury that an authorisation by a director for the purpose of stealing from the company is not a lawful authorisation. His Honour instructed the jury this meant that if Mr Martincic had instructed [the appellant] to transfer the money, and his intention was to steal the money, this would not be lawful (ts 713E). However, it is trite to note that what was relevant to the appellant was her intention, belief and knowledge, and not those of Mr Martincic[.]

In this regard, the appellant notes the jury were not instructed that if Mr Martincic had authorised the transfers for what [the appellant] believed was a legitimate purpose, such as the reimbursement of company expenditure or payment for works conducted, this would have been a lawful authorisation.

Had the jury been instructed to consider whether the appellant herself (looking at her intention and knowledge) was acting under an honest claim of right that Mr Martincic was lawfully authorised to instruct her to transfer money for the requested purpose, it would have been reasonably open for the jury to consider this claim as a real and not fanciful proposition, even if they found that Mr Martincic was not so authorised.

Put another way, the appellant opines it was open to the jury to find that whilst Mr Martincic himself was potentially acting unlawfully, the State had not established beyond reasonable doubt [the appellant] did not believe she was acting in relation to an honest claim of right.

1. As can be seen, the essence of these submissions is that it was open to the jury to find that:

(1) even if, in instructing the appellant to make the payment, Mr Martincic was acting unlawfully for the purpose of stealing the money, the appellant may not have been aware that he was acting unlawfully;

(2) the appellant may, therefore, have honestly believed that Mr Martincic lawfully authorised her to make the transfers that she made; and

(3) this means the appellant was acting under an honest claim of right that she was entitled, on the basis of what she perceived to be Mr Martincic's lawful authority, to make the transfers.

We will refer to this as the appellant's first argument.

1. In support of the first argument, the appellant further submits that:

(1) she gave evidence that she believed she had lawful authority to make the transfers that she made;[68]

(2) she and Mr Martincic both gave evidence that she was authorised to make each payment and that these payments were the subject of discussions between the directors;[69] and

(3) this evidence provided an evidential platform capable of supporting the defence of honest claim of right in relation to all of the charges on the indictment.[70]

1. In oral submissions, counsel for the appellant developed ground 2 in a somewhat different manner, which may be summarised as follows:[71]

(1) The appellant gave evidence that she believed that she was entitled to money, or believed that Mr Martincic was entitled to money, and acted on these beliefs in paying the money the subject of the charges.

(2) The evidence of that belief made s 22 applicable. Money paid by the appellant on the basis of a belief that Mr Martincic was entitled to such money, is an act done 'in the exercise of an honest claim of right' within the meaning of s 22.

(3) Thus, even if neither Mr Marusco nor Mr Martincic had given the appellant authority to make a payment, if the appellant believed that Mr Martincic was entitled to the money, that was sufficient to mean that s 22 applied, and should have been the subject of a direction.

We will refer to this as the appellant's second argument.

1. Analysed by reference to each group of payments, the appellant submits that the defence of honest claim of right should have been left to the jury, in respect of each group, on the following bases, each of which substantially reflects either the first or second of the appellant's arguments:

(1) In relation to the first group of payments - on the defence case, attributable to the reimbursement of start-up costs - even if the jury found that she was not expressly authorised, the appellant might have had an honest claim of right based on the expenditure that she and Mr Martincic put into the company for start-up costs.[72]

(2) In relation to the second group of payments - on the defence case, attributable to the appellant erroneously transferring money into Mr Martincic's account rather than Mr Marusco's account - the trial judge's brevity in summing up meant the jury may not have considered the prospect that the transfers were an honest mistake on the appellant's behalf.[73]

(3) In relation to the third group of payments - on the defence case, attributable to payments made to equalise payments to Mr Marusco's private build - the appellant might have been acting under an honest claim of right based on Mr Marusco's instructions to equalise payments between him and Mr Martincic.[74]

(4) In relation to the fourth group of payments - on the defence case, attributable to Mr Martincic's site supervision payments - acting upon Mr Martincic's instructions was not ignorance of the law or for a fraudulent purpose. Rather, it was fulfilling an instruction from a director who should have been authorised to order the making of the payments.[75]

(5) In relation to the fifth group of payments - on the defence case, attributable to Mr Martincic's car expenses for his site supervision work - it would have been reasonable, based on the invoices Mr Martincic provided to the appellant for his car reimbursements, for the appellant to have had an honest belief that she was entitled to transfer the money to Mr Martincic, since it was a director asking to be reimbursed.[76]

(6) In relation to the sixth group of payments - on the defence case, attributable to payments made to Mr Martincic and his son for carpentry work - the appellant might have honestly believed that Mr Martincic had instructed her to transfer the money.[77]

(7) In relation to the seventh group of payments - on the defence case, attributable to an agreement between the directors that the company would pay for a new car - the appellant might have had an honest belief that she was acting in accordance with Mr Martincic's wishes.[78]

1. Section 371(1) of the Criminal Code provides that a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his or her own use, or to the use of any other person, any property, is said to steal that thing or that property. A person who takes or converts property is deemed to do so fraudulently if he or she does so with any of the intents set out in s 371(2)(a) ‑ (f) of the Code. These include 'an intent to permanently deprive the owner of ... the property'[79] and, in the case of money, an intent to use it at the will of the person who takes or converts it although he or she may intend to afterwards repay the money to the owner.[80] By section 378 of the Code, a person who steals anything capable of being stolen is guilty of a crime.
2. Section 22 of the Code provides:

Ignorance of law, honest claim of right

Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

1. Beyond one of the intentions described in pars (a) ‑ (f) of s 371(2) of the Code, no further state of mind is necessary in order for a taking or conversion to be deemed to be fraudulent and to constitute stealing.[81] It is not necessary to prove that the taking was without the consent of the owner.[82] However, in many or most cases, whether the taking occurred without the owner's consent will bear directly upon whether the taking was with an intent to permanently deprive the owner of the property.
2. For the purposes of s 371(2)(f) of the Code, the property constituted by funds in a bank account constitutes 'money'.[83]
3. Principles concerning s 22 of the Code have been summarised in Interim Advance Corporation Pty Ltd v Fazio[84] and Harwood v The State of Western Australia.[85]
4. Section 22 of the Code only applies if there is evidence, usually if not invariably from the accused, that raises a 'defence' under s 22.[86] If, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived a defence under s 22, the trial judge must leave the defence to the jury even if counsel has not put the defence, and even if counsel has expressly abandoned it.[87] Thus, the fact that defence counsel agreed with the judge that there was no s 22 issue in relation to seven of the eight groups[88] does not determine whether the defence should have been left to the jury. That question depends upon the evidence at trial, not the approach taken by defence counsel.
5. A claim, for the purposes of s 22 of the Code, need only be honest. It does not have to be reasonable or one that is recognised in law.[89]
6. To come within s 22 of the Code, the claim of right must be as to an entitlement 'in or with respect to property'.[90] Section 22 is not restricted to a claim to a beneficial interest in the property.[91] The claim of right must be one that, if correct, would legally entitle the person to do to the property that which he or she did.[92] In R v Waine, in a passage cited with approval in Interim Advance Corporation,[93] Keane JA said as follows:[94]

It has been said that the clearest example of the operation of s. 22(2) of the Criminal Code is the case where a person does an act with respect to property in the honest but mistaken belief that he or she is the owner of the property (R v Walsh [1984] 2 Qd R 407). But it is also clearly established on the authorities that an honest claim of right may be made, not only as a claim to a proprietary or possessory right in property, but also as a claim to be entitled to act in respect of property. What is important is the honest belief that one is legally entitled to do to the property that which one is doing. That belief as to entitlement may come equally from the consent of the owner, or from a person believed to be the owner, as well as from a mistaken belief as to one's own title (Mitchell v Norman; Ex parte Norman [1965] Qd R 587 at 594 ‑ 595; Walden v Hensler at 568; R v Williams [1988] 1 Qd R 289 at 295; R v Jeffrey & Daley [2002] QCA 429 at [21] ‑ [23]; [2002] QCA 429; (2002) 136 A Crim R 7 at 12 ‑ 13). (bolded emphasis in original)

1. In R v Waine, the court held that a person charged with wilful damage by spray‑painting cabins could raise a defence under s 22 of the Code in claiming to have dealt with the cabins in accordance with the consent of the person(s) she believed to own the cabins.[95]

1. As we have said, the judge told the jury, correctly, that it was not in doubt that the property identified in the account was the property of M3, and that the appellant admitted that for each count that she was responsible for the transfer of the relevant amount.[96] The judge told the jury that in order for them to be satisfied of the critical third element - that the appellant took the money fraudulently - they must be satisfied that the money was taken without the consent of the owner and that the taking was done fraudulently.[97]
2. In relation to the question of absence of consent of the owner of the money, the judge said as follows:[98]

Now, in this case, the owner of the money is M3, and M3's a company.

And a company is a separate legal entity from its directors and its shareholders. It has all the legal capacity and powers of the individual.

Now, the business of a company's managed by or under the direction of the directors, and a director may in turn lawfully authorise employees or agents of the company to undertake certain actions. And that, I suggest, members of the jury is reasonably intuitive law.

Now, in the present case, either of Mr Marusco or Mr Martincic as directors had the power to lawfully authorise [the appellant] to transfer the money the subject of each count. So the State must prove that neither Mr Marusco nor Mr Martincic lawfully authorised [the appellant] to transfer the money the subject of each count.

The State must prove that Mr Marusco did not authorise the transfer of the money the subject of each count and for the same count the State must also prove that Mr Martincic did not lawfully authorise [the appellant] to transfer the money. Now, an authorisation by a director for the purpose of stealing from the company is not a lawful authorisation. (emphasis added)

(1) the judge initially stated a requirement that the State prove that neither director lawfully authorised the appellant;

(2) however, the judge then expressed the position differently in relation to Mr Marusco and Mr Martincic: as to Mr Marusco, the State had to prove that he did not authorise; as to Mr Martincic, the State had to prove that he did not lawfully authorise;

(3) the only direction concerning the lawfulness of any authority was the statement that authorisation for the purpose of stealing from the company is not lawful.

As the appellant accepts,[99] the stealing purpose could, on the evidence, only have applied to Mr Martincic, and not to Mr Marusco.

1. The judge told the jury that the State was required to prove the absence of lawful authority for the transfers made by the appellant. The only direction concerning the lawfulness of any authority was the judge's statement that authorisation for the purpose of stealing from the company is not lawful. Given that, as already noted, one of the recurring themes of defence counsel's closing address to the jury was that the directors were engaged in the 'illicit purposes' of tax evasion and breach of directors' duties, the judge might well have told the jury that any such purpose would not have made authority given to the appellant for such purpose unlawful. In other words, authority given for the purposes of tax evasion is authority nonetheless. No ground of appeal complains of the absence of such a direction. That may be because, in the context of the trial as a whole, and given the judge's different expression of the question relating to Mr Marusco - did he authorise - and Mr Martincic - did he lawfully authorise - it was clear that an issue of the lawfulness of authority arose only in relation to any authority given to the appellant by Mr Martincic. The counsel and the judge evidently proceeded on that basis.[100] In effect, that is the understanding reflected in the appellant's written submissions.[101] In any event, as we have said, no complaint of this kind is made by any ground of appeal.
2. As already noted, the judge told the jury that:

(a) Mr Marusco did not authorise the transfer of the money the subject of each count; and

(b) Mr Martincic did not lawfully authorise the appellant to transfer the money; and

(2) an authorisation by a director for the purpose of stealing from the company is not a lawful authorisation.

1. The judge did not explain to the jury the manner in which they should determine whether any authorisation (by a director) they found to have occurred was for the purpose of stealing. However, no ground of appeal complains of this.
2. Nor did the judge say anything to the jury as to the position if they found that a director (relevantly, Mr Martincic) had given authority for the purpose of stealing from the company, but this purpose was unknown to the appellant. In substance, the appellant's first argument for ground 2 makes this complaint. In effect, it contends that, if the jury found that Mr Martincic had given authority for the making of a payment, but had done so for the purpose of stealing from M3, such purpose being unknown to the appellant, the appellant had a defence under s 22 of the Code.[102]
3. In our view, in the hypothesised circumstances, this submission should be accepted. In the hypothesised circumstances, the appellant would have believed that she was entitled to make the payment, because she had been instructed to make the payment by a person whom she knew to be a director of the company and whom she took to be acting with the authority of the company in so instructing her. In that scenario, the appellant would have had a claim that, if correct, would have legally entitled her to do to the property (namely, the money she was transferring) that which she did.[103] That is sufficient to amount to an honest claim of right under s 22 of the Code. As Keane JA explained in R v Waine, the belief as to an entitlement in relation to property may come from the consent of the owner, or from a person believed to be the owner. By parity of reasoning, the belief as to entitlement may come from the consent of a director of the owner, who is believed to be authorised to speak for the owner.
4. Thus, if there was evidence that, in making a payment, the appellant was acting on a direction given by Mr Martincic, in our view, a direction of honest claim of right under s 22 of the Code would have been required.
5. However, the appellant gave no evidence that Mr Martincic, separately from Mr Marusco, instructed her to make the payments the subject of the charges. Relevantly, the appellant's evidence was that:

(1) In relation to the first group of payments, Mr Marusco instructed her to make payments to Mr Martincic for the purposes of reimbursing his start‑up costs and to generate fictitious invoices, relating to existing building projects, that appeared to relate to those payments.[104]

(2) In relation to the third group of payments, Mr Marusco instructed her to pay various invoices issued by suppliers for his private purposes, such payments to be made on account of his director's fees.[105] In that context, the appellant was told to equalise payments of directors' fees by the making of payments to, and for the benefit of, Mr Martincic.[106]

(3) In relation to the fourth group of payments, in conversations in her presence concerning the provision by Mr Martincic of site supervision services to M3, Mr Marusco agreed that Mr Martincic would be paid $12,000 per month.[107] Mr Marusco told her to raise fictitious invoices, to avoid M3 having to pay superannuation in relation to the payments.[108]

(4) In relation to the fifth group of payments, in a discussion in her presence, Mr Marusco authorised the reimbursement of Mr Martincic's car running costs.[109]

(5) In relation to the sixth group of payments, at Mr Marusco's request, made in her presence, Mr Martincic and his son installed cabinetry at a house M3 was building.[110] The appellant's evidence was that Mr Marusco instructed her to process the payments to Mr Martincic and his son under fictitious invoices.[111]

(6) In relation to the seventh group of payments, in a discussion in her presence, Mr Marusco asked Mr Martincic to provide site supervision services to M3 and agreed that, as an incentive for doing so, he would be given a car bonus.[112] When Mr Martincic did not want the $55,000 vehicle originally discussed with Mr Marusco, Mr Marusco said (in the appellant's presence) that that was fine, and that the car would need to be chosen and then payment arranged by the appellant.[113]

Her evidence, given in general terms, that she believed that she was expressly authorised by the directors to make the payments[114] does not advance her position in this respect.

1. Consequently, the evidentiary premise of the appellant's first argument - that in making payments, the appellant was acting on a direction given by Mr Martincic - is not established. The appellant gave no evidence to this effect. This conclusion is fatal to the appellant's first argument, outlined in [43] above, and to her contentions concerning the fourth, fifth, sixth and seventh groups, summarised in [46](4) - (7) above.
2. Asked to explain the application of s 22 of the Code to any group of payments in respect of which, on the appellant's evidence, her authority came from Mr Marusco, counsel for the appellant responded with submissions to the effect of the appellant's second argument, outlined at [45] above.
3. In support of her second argument, the appellant's counsel submits that, if she paid money on the basis of a belief that she or Mr Martincic was entitled to it, then she was acting on an 'honest belief that ... one is legally entitled to do to the property that which one is doing'.[115] This submission must be rejected. It involves an unstated and, as explained below, unfounded premise as to the effect of the appellant's evidence. The appellant's evidence was that she believed that she was entitled to make the payments because Mr Marusco, or both directors together, had authorised her to do so. See [7] and [65] above. The appellant gave no evidence of a belief, on her part, that, even if she was not expressly authorised by one of the directors, she was entitled to make the payments because she believed that (1) M3 owed money to her or to Mr Martincic and (2) she was entitled to make payments of M3's money in discharge of those debts in the absence of authority from a director of M3. Thus, taken at its highest in favour of the appellant, there was no evidence capable of leading to a reasonable doubt as to the existence of a belief, on the appellant's part, of an entitlement to make the payments in the absence of express authority of a director. In other words, the appellant did not discharge the evidential onus in relation to an honest claim of right to the effect asserted by her second argument.
4. Thus the appellant's second argument fails. Her contentions as to the first and third groups, summarised in [46](1) and (3) above, are founded on this argument. The first postulates her belief in an entitlement not founded on authority given to her by a director. As to the third, see [67] above. Consequently, the appellant's contentions as to the first and third groups fail with the rejection of the appellant's second argument.
5. That leaves only the second group of payments. On any view of the merits of ground 2, it can have no application to this group of payments. As already noted, the appellant's evidence in relation to those payments was that they comprised commission due to Mr Marusco which she, in error, transferred into Mr Martincic's account. Contrary to the appellant's submission,[116] payment made by A in a belief that B is entitled to the money which, by mistake, A pays to or for the benefit of C, is not made 'in the exercise of an honest claim of right' within the meaning of the second paragraph of s 22. Expressed in terms of Keane JA's test, A's belief (that B is entitled to the money) does not entitle her to do what she did with the money (namely, pay it to C).
6. For these reasons, while we would grant leave to appeal in respect of ground 2, the ground is not made out.

1. For the above reasons, we would make orders as follows:

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

Research Associate/Orderly to the Honourable Justice Beech

[2] ts 38 - 39, 716, 717; ts of closings 15.

[5] ts 42, 716; ts of closings 3, 11 - 12, 16.

[8] See [7](2) and (3).

[10] ts 537 - 541, 566 - 568, 579 - 580.

[33] See, for example, ts of closings 19, 24, 26 - 28, 30, 43.

[42] ts 716 - 717. It is not necessary to include the judge's summary of the State case in response to the appellant's s 22 defence on the 22 counts the subject of exhibit 71.

[45] Order of Mazza JA, 19 October 2018.

[46] Appellants' submissions [27], [44] - [46].

[47] Mr Marusco gave evidence that the appellant and Mr Martincic were locked out of the office and precluded from acting on behalf of M3 on 6 May 2016 by a Supreme Court order: ts 297.

[48] Despite referring to 'Ambrey', the appellant must be referring to 'M3'. The reference to 'Ambrey' appears to be a transcription error originating in ts of closings 32 - 33, upon which this submission is based.

[60] Ruthsalz v The State of Western Australia [2018] WASCA 178 [134] - [136]. See also McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309 [35].

[62] ts of closings 19, 24, 26 - 28, 30, 43.

[66] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9]; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [48]; Huggins v The State of Western Australia [2018] WASCA 61 [376]; MLS v The State of Western Australia [2018] WASCA 56 [121].

[67] Appellants' submissions [47] - [50].

[68] Appellants' submissions [67], relying on ts 499, 507, 531.

[81] Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110, 115; Harwood v The State of Western Australia [2016] WASCA 8 [116].

[82] Ilich (115), (123), (137 - 138). See and compare Dobson v The Queen (Unreported, WACCA, Library No 8213, 11 April 1990), as to which see R v Prosser (1993) 70 A Crim R 391, 394 - 395, 397 - 398.

[83] Kingdon v The State of Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449 [39].

[84] Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 [74] - [80].

[86] Interim Advance Corporation [80].

[87] Hayman v Cartwright [2018] WASCA 116; (2018) 53 WAR 137 [68] and cases there cited.

[89] Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 568 - 569; Harwood [118] and cases there cited; Interim Advance Corporation [79].

[90] Walden v Hensler (592); Harwood [118]; Interim Advance Corporation [76].

[91] R v Waine [2005] QCA 312; [2006] 1 Qd R 458 [29].

[92] Interim Advance Corporation [78]; Harwood [119]; both citing R v Waine [25].

[93] Interim Advance Corporation [78].

[95] R v Waine [26], applying R v Pollard [1968] QWN 13, 29.

[101] See appellant's submissions [47], set out at [42] above.

[102] See, for example, appellant's submissions [47] - [50], quoted at [42] above.

[103] R v Waine [25]; Interim Advance Corporation [78]; Harwood [119].

[115] Appeal ts 31, referring to R v Waine [25].