The directions of the trial judge
24As will be seen subsequently a number of the grounds of appeal relate to the directions given in respect of Count 2 in the context of the way in which the parties put their respective cases. In these circumstances it is necessary to have regard to the manner in which the parties opened their respective cases on that count.
25In opening address the Crown stated that its case on Count 2 was that at the meeting of 3 December between the appellant and Mr Sowaid $2,000.00 was handed over as an inducement to Mr Sowaid to process the loan. Subsequently in opening, the Crown described what it had to prove to establish the offences in the following terms:
"In relation to conspiracy, that is, we have to prove that two or more persons - and we say that this conspiracy involved three persons, that is, these two accused and a third person Mohamad Diab who by his own evidence will say I am the person that made up the resume. I am not the person who made up the financials. We have to prove two or more persons. If you were satisfied that, for example, beyond reasonable doubt you would have to be so satisfied that there were only two persons involved but they were different persons. So for example if you said you found beyond reasonable doubt Diab and Cornell so conspired, but Mehajer wasn't part of that conspiracy, then you would be able to deliver a verdict in relation to Cornell; or if you were satisfied that it was only Cornell and Mehajer that were involved in the conspiracy, then you would be able to deliver a verdict. But I will just make you aware of that, but we say it's a three person - as long as you were satisfied in relation to each of these accused, and you are satisfied beyond reasonable doubt that they were involved in a conspiracy, that is, two person, then you can so deliver a verdict.
So essentially we have to prove that they agreed to use dishonest means, in this case the documents with the falsities, to prejudice another person's economic right or interest in this case; that is, to make the NAB hand over money which they wouldn't have handed over if they knew of the falsities.
In relation to the corrupt commission offences, we have to prove that the accused Mehajer corruptly - that is, with the relevant intention of influencing Mr Sowaid in the performance of his duties, gave to Sowaid who we have to prove technically is an agent of the National Australia Bank - agent includes employee - that he gave him a benefit, in this case the $2,000 as an inducement, it's another element; and that the inducement was to do something in relation to his principal's business, namely, process the loan."
26The appellant's case was opened briefly. Senior counsel for the appellant put his client's case as follows:
"The two major issues that you will hear ventilated at least for my client relate, firstly, to the false documents that were alleged to be part of the conspiracy. What is in dispute with the Crown case, the way it was put to you in opening, is the authorship and participation of Mr Mehajer in those documents. It was put to you that Mehajer had given Diab false documents and they were passed on to the National Bank. That is in dispute. The fact that the documents were passed on to the National Bank by Diab is not in dispute. The fact that they were false when they were given to him is in dispute.
The second point is the payment of the corrupt commission that is alleged. Mr Mehajer does not dispute that he made the payment of $2,000. What is in dispute is the purpose of it. What I would hope that you would do is keep those two areas of dispute in your mind because it will, apart from anything else, explain to you why I'm asking some of the questions of witnesses that I do ask and know the reason for it. That's all I have to say for you at this stage."
27In his closing address the prosecutor put the case against the appellant in the following terms:
"So ladies and gentlemen we have the meeting on 3 December 2008 and this goes to both the second count in relation to Mr. Mehajer and the conspiracy count in relation to each of the accused. We know from Mr. Sowaid and Mr. Diab that Mr. Sowaid and Mr. Mehajer go into another office and Mr. Mehajer closes the door. He thrusts a white envelope into Sowaid's pocket. It was put to Mr Sowaid that it was an overtime payment yet in no call is such a topic mentioned. Mr Sowaid denies it. He's pleaded guilty to it on the basis that he received it in those circumstances and Ms. Cornell says there was a commitment fee yet she does not use that word to describe the payment in the calls to Mr. Diab on the 8th or Mr. Mehajer on 7 December."
28Thereafter the following interchange took place in the absence of the jury:
"HIS HONOUR: Mr Crown, do I understand you to be saying that if the jury thinks it's reasonably possible that Mr Mehajer intended the money to be as an overtime payment, that the jury would find Mr Mehajer not guilty on count 2?CROWN PROSECUTOR: No.
HIS HONOUR: I must have misunderstood then.CROWN PROSECUTOR: Sorry, no all I'd say is on the evidence that -
HIS HONOUR: Okay. Do you push for the possibility being, for a possibility being that the jury might find beyond reasonable doubt that the payment was described as for overtime but nevertheless Mr Mehajer could be found guilty?CROWN PROSECUTOR: Yes, yes.
HIS HONOUR: Right, okay."
29Following that interchange the Crown addressed the jury in the following fashion:
"I will just summarise the Crown's position about the events of 3 December. To determine whether you can infer that there was a corrupt intent, look at all the circumstances of what happened in the lead up to and on 3 December. But I want to make the Crown's position quite clear, ladies and gentlemen. It's the intent that's important in the tendency as outlined; that is, that the receipt of the money would in any way tend to influence Mr. Sowaid and in that sense it doesn't matter what the money handed over may or may not have been called. That is, even if you were satisfied that Mr. Mehajer did call it overtime, you can still be satisfied beyond reasonable doubt that it was a - that the offence is proven, because of the elements. So I'll want to make that quite clear to you, ladies and gentlemen, but we rely on inference. Mr. Mehajer says he had no such corrupt intent. We would ask you to reject his evidence about this, except the evidence about Mr. Sowaid and the telephone intercept material on the 8th in particular, and to infer that he had the relevant corrupt intent."
30The trial judge supplied the jury with written directions. As they are relatively brief it is convenient to set them out in full:
"Count 1
Before you can convict Mohamad Mehajer you must be satisfied beyond reasonable doubt that:
1. Mr Mehajer entered into an agreement with at least one other person (either Mr Diab, or Ms Cornell, or both), to cheat and defraud the National Australia Bank Ltd of a sum of money and
2. At the time he entered into the agreement he intended that the National Australia Bank Limited would be cheated and defrauded.
Notes:
To cheat and defraud someone is to intentionally use dishonest methods to deprive another person of their property,
In deciding whether something is dishonest you should apply the current standards of ordinary decent people.
The offence can still be committed even if those involved in it intended that the National Australia Bank Limited would get the loan repaid.
Count 2
Before you can convict Mr Mehajer you must be satisfied beyond reasonable doubt that:
1. Mr Mehajer gave Mohamad Sowaid $2,000, and
2. at the time, Mr Sowaid was an employee of the National Australia Bank Limited, and
3. the receipt of the money would in any way tend to influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank Limited, and
4. the payment was made corruptly which means that Mr Mehajer intended that it would influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank Limited.
Notes
The Crown does not need to prove that the receipt of the money actually influenced Mr Sowaid to show favour to Mr Mehajer, only that receipt of the money would tend to influence him to show favour."
31Early in his summing-up the trial judge gave the following directions concerning Count 2:
"One of the very big areas of dispute is the purpose of the payment to Mr Sowaid. The reason that Mr Mehajer gave that money to Mr Sowaid is disputed. The Crown says that Mr Mehajer did that because he wanted Mr Sowaid to show favour to him in considering what to do with his loan. Mr Mehajer said it is just a gift, because Mr Mehajer would have to work overtime, over the weekend, that was the reason he gave him that gift, and he said that as he handed it over he said, 'This is not a bribe', so there is that dispute. What was the purpose of that $2,000 payment?
When you look at the elements that go to make up count 2 on the indictment you might say to yourself, it does not matter. You do not need to look at it now, members of the jury, but you might say to yourself it does not matter whose version is correct. You might decide that even on Mr Mehajer's version the Crown has proved that he is guilty on count 2; or, you might decide that even on the Crown version, he is not guilty. So you might say, I do not need to resolve that dispute, because whichever side I accept the verdict is either guilty or not guilty. Do you understand that? Even though it is a very big area of dispute as to what the purpose of that payment was when you look at the elements it might be that you say to yourselves, I do not need to decide that, I do not need to resolve that dispute because even if I accept the Crown's version he is not guilty or, even if I accept Mr Mehajer's version he is guilty."
32Shortly thereafter he dealt with the character evidence called by the accused:
"But let's get back to Mr Mehajer. His character is a matter which you should take into account in determining your verdict. How? How do you take it into account? Well you are entitled to take it into account in a couple of ways. The first way is this. You might think that a person who has not done this sort of thing in the past, and is described as honest by those who know him, is less likely to have committed this offence or either of these offences than a person who has a history of such conduct. That is a matter of common sense really. The fact that Mr Mehajer who is a person who has no history of offending of this kind, or of any kind for that matter, that entitled you to consider the improbability of him having committed those offences the Crown alleges against him. So you are entitled to take the character of Mr Mehajer into account in deciding whether he is guilty or not of the offences he is charged with. Now the second way you can take Mr Mehajer's character into account is this. Mr Mehajer has given evidence in this trial, and the fact that he has not been convicted of any criminal offence and the fact that people are prepared to come along to court and say that they regard him as honest, and he has a reputation for honesty, well that evidence supports his credibility. In other words, people of good character that have never been convicted of a criminal offence, there are people that describe them as honest, are generally less likely to lie in court than people of bad character who do have criminal convictions. So Mr Mehajer's character should be taken into account by you in deciding whether or not you accept the evidence he gave in court. Of course he denied committing the offences and so when you say to yourselves do I accept what he said, you take into account that he is a man with no previous convictions who is described as honest by those people who know him.
Now, or [sic] course, the character of Mr Mehajer is just one of the many matters you take into account in deciding your verdict. People without criminal convictions are not incapable of committing offences. After all everyone that has ever been convicted of a criminal offence has at some stage been able to say I have no previous convictions. Nor are people with no convictions, nor are people who are described as honest incapable of lying. And I have just suggested to you - the Crown says that even on Mr Mehajer's version when he handed over that $2,000 he was doing it dishonestly. But, of course, I do not want to undermine in any way the direction I have given you."
33On the second day of the summing-up the following direction was given in respect of Count 1:
"So there is that first element, Mr Mehajer entered into an agreement with at least one other person, either Mr Diab, Ms Cornell or both to cheat and defraud the National Australia Bank of a sum of money. And under the notes there I have got to cheat and defraud someone is to intentionally use dishonest means to deprive another person of their property. And of course in this case the Crown says that the dishonest means that the people had agreed to use was that NAB was to be deceived into thinking that Mr Mehajer was a better loan risk than he really was by the use of those two false documents, false financials or the false resume or both of those."
34His Honour then directed the jury that in considering Count 1 it was not necessary to find that the appellant did not intend to repay NAB:
"And of course the Crown does not suggest that Mr Mehajer was going to take the $3 million and never pay it back but I remind you it does not matter. Everyone seems to have had the view that Mr Mehajer was going to be able to service the loan and ultimately of course no money was lent. So ultimately the NAB did not suffer any loss. And if the loan had been granted and Mr Mehajer had paid the interest and paid the principal back at the end, it would not have suffered any loss either.
But the offence can still be committed even if those involved in it intended that the National Australia Bank would get the loan repaid."
35The trial judge then proceeded to give detailed directions on Count 2:
"Well once again there are elements that have to be proved in count 2 before the Crown can prove Mr Mehajer's guilt to your satisfaction and I have written them down for you there. The first is that Mr Mehajer gave Mohamad Sowaid $2,000. The second is that at the time Mr Sowaid was an employee of the National Australia Bank Limited. Now I do not think you will have much trouble with those. Both Mr Mehajer and Mr Sowaid say that Mr Mehajer gave Mr Sowaid $2,000. So I think you will find that proved beyond reasonable doubt fairly quickly. Mr Sowaid told you he was employed by the National Australia Bank and it was never suggested to him that he was not and so I think you would tick that one off as well. And move onto the third one.
The third thing the Crown has got to prove is that the receipt of the money would in any way tend to influence Mr Sowaid to show favour in relation to the affairs or business of the National Australia Bank Limited. Well once again members of the jury, I do not think it was suggested by Mr McKeand that you would not find that proved. It appears that Mr McKeand accepts on behalf of his client the receipt and [sic] the money would tend in some way to influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank. And as I have made clear in that note underneath the elements members of the jury, the Crown does not have to prove that the receipt of the money would actually influence Mr Sowaid, that the receipt of the money actually influenced him to show favour to Mr Mehajer. Only that the receipt of the money would tend to influence him to show favour. And I say I might be wrong but I did not get the impression that Mr McKeand was asking you to find in favour of his client as regards that element. The focus of his submissions on this count was the fourth element and that is what I will look at now.
The fourth element requires that the Crown prove beyond reasonable doubt that the payment was made corruptly. And what that means is that Mr Mehajer intended that it would influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank Limited. So the real issue as far as count 2 is concerned requires you to look at what Mr Mehajer intended at the time he handed over that $2,000. What did he intend? What did Mr Mehajer intend? Not what would someone else intend who had done that. Not what a reasonable person would intend who did that. The question is what did Mr Mehajer intend when he handed over the $2,000? Did he intend to influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank?
Now I want you to understand that the idea of showing favour does not only mean approve the loan or process the loan application. Look it can mean that but it can mean other things too. It may be and this is for you to decide and not me. It may be that by getting Mr Sowaid to do his work on the loan application faster than he would otherwise, Mr Sowaid would be showing favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank Limited. Remember yesterday I said that it may be that even on Mr Mehajer's version you could find him guilty of this charge, well that is because the idea of showing favour does not only mean show favour in processing the loan application, show favour in getting me the loan. It can also mean perhaps, this is for you to decide, working on the loan application faster than you would otherwise have done."
36His Honour then gave the example of paying a motor registry employee a fee to jump a queue. He said in these circumstances it would be up to the jury to determine whether this was done to show a favour to the person in relation to the business of the Roads and Maritime Services. He then proceeded as follows:
"You are deciding whether Mr Mehajer committed an offence. And I am not telling you that you would find Mr Mehajer guilty even on his version of events. I am not telling you that at all. All I am telling you is what the elements of the offence are and that one argument of the Crown that you may need to evaluate is that Mr Mehajer is guilty if you accept the version of events that he put forward in his evidence to you. And that is because showing favour, a thing referred to in element 4 there, showing favour does not only mean processing a loan application or having the loan granted. It might, subject to what you decide, it might mean other things as well."
37The trial judge emphasised that the payment of $2,000.00 was relevant to both charges:
"The Crown said that that meeting where the money is handed over of course is directly relevant to the charge that Mr Mehajer faces alone, the second count on the indictment, but the Crown says it is also relevant to the conspiracy charges that each face. So you do not just - because it is relevant particularly to one particular charge, you do not ignore it when you look at the other charge. The Crown then said, well this was not an overtime payment - it was suggested it was a payment for overtime, but it was not said the Crown in his submission and he had a number of reasons for that. It was not discussed like that on the phone. There was no suggestion that it was a payment for overtime on any telephone intercept. It was not described as a consultant fee on any calls despite that being what Ms Cornell thought the payment was all about.
And of course you have got to remember Mr Sowaid's evidence. He has denied that it had been referred to as an overtime payment when he gave evidence and later calls between Mr Diab and Ms Cornell show that they both knew about this $2,000 payment and they both knew that more money was to be paid to Mr Sowaid. The Crown said that in a call on 8 December that payment is not described as a consultant's fee, it is described as a present and that, says the Crown, is very significant. If it was a consultant fee he would have been described as a consultant. Then the Crown said it does not matter really what the money was called, even if it was called overtime then you could still be satisfied beyond reasonable doubt that the charge that Mr Mehajer faces alone is proved beyond reasonable doubt."
38Subsequently an objection was taken to part of the directions on Count 2:
"MCKEAND: And the second point relating to the same charge is a technical one really. The particulars that the Crown has got in terms of the inducement in relation to the business of the principal are namely process a loan application through the National Australia Bank and your Honour focused on the fact that, even if the payment was to work overtime it would still come within - in relation to the business of the principal of Mohamad Sowaid.
HIS HONOUR: I didn't say it would, I said they'd have to decide. I didn't say it would.
MCKEAND: No, no, all right, well sorry I didn't mean to misquote you.
...
MCKEAND: But nevertheless that is not within the particulars which was the processing of the loan application and the way I put it to the jury was processing a loan application means to complete that task.
HIS HONOUR: Well as you point out they're mere particulars, so particulars in a charge are not elements of the offence. Mr Crown - I mean sometimes Mr Crown might agree with you, I'll just check.
CROWN PROSECUTOR: No, no this is a classic case of the Crown, as a matter of fairness, has to provide particulars it has. If the defence provides a different set of particulars in their own case which results in a conviction, then so be it.
HIS HONOUR: Okay, Mr McKeand do you want to say anything else?
MCKEAND: Nothing further your Honour.
HIS HONOUR: I don't propose to amend what I said in this regard."