Monk v R [1999] WASCA 27

Crimes Act 1914 (Cth) s23V(1), s5(1), s29(D)

Customs Act 1901 s234(1)(a)

Proceeds of Crime Act 1987 (Cth) s83(1)

Respondent : Commonwealth Director of Public Prosecutions

Barendse v Comptroller General of Customs (1996) 93 A Crim R 210

Chidiac v R [1991] HCA 4; (1991) 171 CLR 432

Gallagher v Cendak [1988] VicRp 70; [1988] VR 731

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292

Kahatapitye v R, unreported; CCA SCt of WA; Library No 980232; 1 May 1998

Khan [1971] WAR 44

Markovina (1996) 93 A Crim R 149

Peters v The Queen [1998] HCA 7; (1998) 151 ALR 51

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

Pizzata and Others v The Queen, unreported; CCA SCt of WA; Library No 930596; 29 October 1993

R v Baskerville [1916] 2 KB 658

R v Dos Santos (1995) 80 A Crim R 350

R v Ireland [1970] HCA 21; (1970) 126 CLR 321

R v Power, unreported; CCA SCt of SA; Library No 1783; 19 September 1989

Raso (1993) 68 A Crim R 495

Russell v The Queen, unreported; CCA SCt of WA; Library No 970234; 19 May 1997

Sutton v R [1984] HCA 5; (1984) 152 CLR 528

Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1

1 MALCOLM CJ: This was an application for leave to appeal against conviction. There were originally 13 grounds for the application but these were reduced to eight by way of amendment made at the hearing on 15 March 1999. I agree with Wallwork J that the only ground upon which the applicant is entitled to succeed is ground 5 which contended that the learned trial Judge failed properly to identify for the jury the evidence capable of corroborating evidence of the witness, Ms Sadik, in relation to count (2) on the indictment. In respect of all of the other grounds I agree with Wallwork J that none of grounds 1 to 4 or 6 and 7 succeed. It follows that ground 8 which contended that there had been a miscarriage of justice due to the accumulation of errors by the learned trial Judge referred to in grounds 1 to 7 also fails.

2 For the reasons to be published by Wallwork J I would grant leave to appeal, allow the appeal in respect of ground 5, quash the conviction in relation to count (2) and order a new trial in respect of that count.

3 IPP J: I have read the reasons to be published by Wallwork J. I agree with them and his Honour's conclusions. I have nothing further to add.

4 WALLWORK J: On 12 November 1998 the applicant was convicted of two offences of being knowingly concerned in the commission of organised fraud contrary to s5(1) of the Crimes Act 1914 (Clth) and s83(1) of the Proceeds of Crime Act 1987 (Clth). He appeals against those convictions on a number of grounds.

5 The two offences were allegedly committed by two different companies, the first being Laran Holdings Pty Ltd and the second being Waylen Enterprises Pty Ltd. Both companies were importing tyres from the UK. In short, the applicant was alleged to have been a prime mover in defrauding the revenue by being part of a scheme by which the two companies evaded duty on the imported tyres. This was done by the UK supplier providing to Customs an invoice for each shipment. The invoice showed a lower purchase price for the tyres than was the true position. The true price for the tyres was paid to the UK supplier on different invoices which were for approximately three times the purchase price shown on the bogus invoices sent to Customs.

6 Mr Mastrangelo, an officer employed by the Australian Customs Service said in evidence that at the relevant time he had been an investigation officer attached to the Australian Customs Service in Fremantle. About late April of 1994 he had commenced an investigation into the importation of tyres by F and M Tyre Services which was a business name of Laran Holdings. Mr Mastrangelo ascertained the amount of customs duty paid by F and M Tyre Services between 8 November 1989 and 18 July 1994. He also investigated the amount of sales tax paid by the same firm. He carried out the same investigations with respect to another firm, Harland Tyres WA, an associated firm which was concerned with the second count in the indictment.

7 Mr Mastrangelo said that when he commenced his investigation into the tyre importations he did not know the applicant. He knew F and M Tyres had as its parent company Laran Holdings. A search of the Australian Security Commissions records had indicated that the directors of Laran Holdings were Mr Peter Monk and Mrs Eileen Monk. Mr Mastrangelo and other officers extracted from the customs computer entries going back to 1989 which was when F and M Tyres commenced importing. Mr Mastrangelo found 68 importations. He made a similar investigation with respect to Harland Tyres WA. The investigators then compared their records with financial records which were held by the Austrack System. That system recorded the transfer of funds overseas. As a result of the comparison it appeared that there was a large discrepancy between the amount of money being sent overseas in payment for the tyres and that being declared for Customs purposes.

8 Mr Mastrangelo said that it was reasonable to assume that perhaps there was something wrong in the documentation. He had then sworn an information in front of a Justice and obtained a notice to produce documents. Mr Mastrangelo and other officers had then attended at F and M Tyres business premises on 2 August 1994. Their intention was primarily to collect documents.

9 At the trial a voir dire was held to determine whether any of the alleged admissions made by Mr Monk to the officers on their first visit to the business premises and his home were admissible in accord with s23V of the Crimes Act 1914. That section provides that if a person being interviewed as a suspect makes a confession or an admission to an investigating official, the confession or admission is not admissible as evidence against that person unless, if the confession or admission was made in circumstances where it was reasonably practical to tape record the confession or admission, anything said by that person during the questioning was tape recorded. Alternatively, in any other case, at the time of the interview or as soon as practicable afterwards, a record in writing must be made and as soon as practicable after that, it must be read to the person and the person given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or admission.

10 Because the charges brought against the applicant depended to some extent upon what occurred at the first meeting between the customs officers and the applicant, I will discuss Ground 3 of the appeal first.

11 Ground 3 is that the learned trial Judge erred in law on the voir dire in admitting into evidence the alleged conversations between customs officers Mastrangelo and Colgan and the applicant on their first contact with him..

12 When the officers arrived at the business premises of F and M Tyres, Mr Mastrangelo was accompanied by officer Colgan. Two other officers stayed in the car outside the premises. Mr Colgan said that he took notes during the conversation with the applicant. He recorded those notes on a clipboard he had with him. The officers did not have a tape recorder. When asked why not, Mr Mastrangelo said, "At the time we didn't think tape recording was necessary as we were - on these types of actions which were basically a collection of documents, it wasn't common practice to take tape recorders with us." He said that they had gone there specifically under the Customs Act believing at that stage that they had a series of false statements. He had not gone there with the intention of possibly arresting anyone. He did not believe he was investigating an arrestable offence. He did not consider it was necessary to give a caution at the beginning of the conversation with Mr Monk. He said they really had no idea of how the people at the premises fitted into the day to day running of the business. There were a series of clarification questions. Mr Mastrangelo asked the applicant whether he was in a position to speak on behalf of the company. He received an affirmative answer to that question.

13 The officers entered the premises just before 10am and left there to go to the applicant's home around 11.30am. They returned to the Customs offices at about 3.30pm or 3.40pm. Mr Mastrangelo then sat down with Mr Colgan and transposed the notes that Mr Colgan had taken into the official notebook. Mr Mastrangelo countersigned Mr Colgan's notebook and the notes which were taken off the clipboard.

14 During the first conversation at the premises no caution was given to Mr Monk. Mr Mastrangelo said that was because the questions which were asked and the answers given were basically clarifying certain things, "and at that stage I still wasn't completely sure in my mind that Mr Monk may have actually committed any offences or in fact whether anybody else may have also committed offences."

15 In the original information which had been sworn before the visit to the premises Mr Mastrangelo had alleged that an offence may have been committed by F and M Tyre Services. There was no allegation then that any particular individual had committed an offence. This was said to be because the importer was F and M Tyre Services. That was the entity on the Customs import entries. If any false statement was alleged to have been made, it had been made by F and M Tyre Services.

16 Mr Mastrangelo said that from the information which he then had he thought it could have been one of several individuals who could have been involved in the alleged making of a false statement.

17 At the applicant's house on the first visit officers Wales and Hannay had collected documents whilst Mr Mastrangelo and Mr Colgan stayed with the applicant. Mr Colgan said that he was writing notes of any conversation between Mr Mastrangelo and the applicant.

18 At the house the applicant was asked whether he would give a letter of authorisation to his bank for information concerning the payments he had sent overseas. He was also asked: "When you ring the bank up do you authorise payment for both invoices." The applicant replied, "Either Global or Crown Sterling." Mr Mastrangelo then cautioned him. He said he did that:

"Because it was at that stage that some of the documents I had scanned and some of the documents that had been brought to my attention at the house indicated - it was the first time that I had seen the actual telegraphic transfer docket and it was attached to two entries and other documentation. That's the first time I had actually seen it and on some of the ones I scanned there were notations that payment was authorised by various people including Mr Monk. When I asked him that question, it confirmed from what I had seen of the documents in front of me - it confirmed in my mind that perhaps Mr Monk was the person that had basically physical and total control over the remitting of funds back to the UK."

19 Mr Mastrangelo said he had cautioned the applicant at that stage because that is when he thought that he had personally committed an offence. At that stage it was still false statements he was concerned with. He said:

"Basically the Customs entry was false and the transfer of the funds indicated that obviously there was an amount of money that should have been declared to Customs and it wasn't. So at that stage it was basically still a false statement."

20 Mr Mastrangelo said that at that stage he was still looking at possible evasion of duty - "That's probably the other offence that may have been committed. There were no arrest provisions for those two offences." In fact, the applicant was never arrested. The relevant proceedings before the Court were initiated by way of summons.

21 At the time Mr Mastrangelo first went to the business premises he was also in possession of a warrant to secure the documents if they were not voluntarily given up. That warrant had been obtained from the Collector of Customs based on the sworn information that had been put before the Justice of the Peace to obtain the notice to produce the documents.

22 The information sworn before the Justice of the Peace had contained allegations of two s234 offences under the Customs Act concerning primarily false statements which had led to the evasion of Customs duty under s234(1)(a). The information in the warrant was that the goods had been unlawfully undervalued.

23 In cross-examination Mr Mastrangelo agreed that in general terms they were looking at an unlawful undervaluing of tyres. He agreed that such conduct might give rise to "any number of offences". He had investigated the structure of Laran Holdings and the relationship of F and M Tyre Services with the Australian Customs Service. He had also investigated the structure of Harland Tyres Ltd in the UK and the structure of Crown Sterling in the United Kingdom and a company called Gloworld Ltd in the United Kingdom. Gloworld had changed its name to Global Tyres in July 1993.

24 Before Mr Mastrangelo obtained the notice to produce and the warrant he had made a comparison between the values declared to Customs for the tyres and the amounts paid for them overseas. He had come to the conclusion there had been an unlawful undervaluation. Mr Mastrangelo admitted that by the time he had gone to the business premises he had reached a belief that offences involving undervalue had been committed by the company. He also said that there were statutory provisions which make people involved in the decisions of a company liable for them. He conceded that if someone was knowingly concerned in such an unlawful undertaking, then they are not only criminally liable, but civilly liable as well. He said that when the officers went to the premises there were still gaps in the information they had. He said there were payments "which we needed to ascertain what they were, who they went to and what they involved, before we could basically proceed any further." He did not believe he needed to have cautioned the applicant as soon as he arrived. He said that he was clarifying certain things as they arose. He had been at the office for about an hour and a half and had then gone to the applicant's home.

25 Mr Colgan said he did not think that s23V applied because he had no power of arrest for the offences which they were looking at at that time. It was his opinion that at that time he had no power of arrest.

26 At the hearing on the voir dire the applicant said that neither of the officers had taken any notes of the conversation as it had developed between him and them. He denied that Mr Colgan had been making notes of the conversation on a clipboard or a file with papers inside it. He said he was not aware that his conversation with the officers was being recorded in any way. He denied saying that there were no documents kept at his business premises. He said he told the officers that there were some downstairs and some upstairs. He denied telling the officers that the documents referred to sales figures for the factory. He said that the figures were expense figures for the factory which was being developed or had been developed. He said that the officers had started searching through the documents. They had taken the lot of them. They were there for about an hour and a quarter. There was really no conversation between himself and the officers. The officer in charge had told him that he had to go to the house. He said they were going there to search for other documents. They had searched the house. "They went right through the house." He said they had concentrated their search on the spare room where they had got all of the documents. The applicant said there had been no conversations about banking and shipping while they were searching and locating documents in that room.

27 The applicant said he was cautioned at twenty past twelve on that day when they had finished everything. He said if he had been cautioned at any stage prior to that he would have said nothing. He said he would have done the same as he did when they raided him a second time. That is, he would have called a solicitor. He denied having pointed to different documents and having collated them for the officers. He said they had taken all the documents out of the drawers and put them all together. They had just emptied the drawers. He had just sat at the desk and watched them do that.

28 The applicant said that Mr Colgan had not been carrying anything and had taken no notes. That when the officers got to his house on that day he had sat at the kitchen table. He had no conversation with them, "none at all." They were talking between themselves and searching for papers and writing down the documents which they were taking away.

29 It was submitted on behalf of the prosecution that the officers had wanted to gather documents by way of a notice to produce procedure and then to analyse those documents to see where they took them. When the applicant had said he was involved in paying for the invoices, he had then been cautioned because he was the one who had said, "I'm the one who pays for what comes over from the UK."

30 It was conceded that at the time Mr Mastrangelo gave the caution he was speaking to the applicant as a suspect. One would have to accept that he had probably then contemplated an offence in respect of which he may have had the authority to arrest the applicant. It was conceded for the prosecution that there had been no recording or reading back. However, it was contended that the conversation which the trial Judge had permitted to be given in evidence had really had nothing in it that was in any way prejudicial to the applicant.

31 The prosecution contended that when the officers had first arrived at the premises the applicant had said that he was in a position to talk on behalf of the company. According to the officers the applicant had then read the notice to produce documents. He was said to have answered the question: "Are all the documents that relate to the entries here?" by saying, "No, at home."

33 It was said by the officers that the applicant was asked whether he was going to comply with the notice to produce the documents. He was told that the form indicated immediately. He was said to have replied that he would have a look upstairs. He had agreed to let other officers come into the building. He had then led them to an upstairs office where he was said to have commenced to collate documents which were on top of the desk. When asked, "What are those?", he is said to have replied, "Sales figures for the factory over there." There was some other conversation. The officers said they told him, "We have reason to believe that the goods are entered illegally by undervaluing." He was said to have been told that he had paid more for the goods than what he had declared. He was then said to have said, "That's okay. I understand." The officers said that some documents were handed to them by Mr Monk and that some files were located in the filing cabinet.

34 In cross-examination Mr Mastrangelo agreed that the applicant had allowed them free access to everything he had at the business premises and then later on at his house. He agreed that the investigation had been continuing for a few months prior to their visit. That they knew what Laran Holdings and Waylen Enterprises were and the directors and shareholders of those companies; also what business names were registered to them and what goods they had imported into the country and under what entries.

35 Mr Mastrangelo agreed that to a limited degree he had known what sums of money the companies had sent overseas. Also that the officers had previously caused some enquiries to be made overseas and had found out something about the companies called Gloworld Limited and Crown Sterling Direct. He conceded that he had known that the applicant had been a director of Laran Holdings for some time. He agreed that when he arrived at the premises he had asked the applicant whether he was a person who could speak on behalf of the company. That the applicant had replied, "Yes."

36 When asked whether he had thought before then that if anybody had caused anything wrong to be done, it was quite likely to be one of the two directors or both, Mr Mastrangelo replied, "quite possibly". However, he said that until he had ascertained further facts he had really needed a clearer picture of just how people fitted into the operation - the day to day running - and who was in authority for that particular company. Mr Mastrangelo agreed that if he was formally interviewing a suspect a written record would be made of the conversation and read back to the person concerned. He said that none of that had occurred in this case because, "We weren't there to interview the person."

37 Mr Mastrangelo said that they had been there to serve a notice. The intention had not been to interview the applicant. He said, "The text of the conversation, as it went, was purely for clarification purposes." That the conversation was being recorded in note form "but we weren't there to interview anybody in a formal capacity." He said, "The text of the conversation as it went basically was to further identify Mr Monk's particular role." He was not viewing it as an interview. He said, "The idea of recording the events as they unfolded was in case there was non-compliance with the notice and then if the warrant needed to be produced, we needed to be able to justify the time and the reasons why the warrant was produced." When asked why they had not played it safe and read back to the applicant what had been recorded so that there could not be any argument about what was said later, his answer was, "Well it wasn't done on this particular occasion."

38 The notice to produce was put into evidence. It was addressed to Laran Holdings Pty Ltd trading as F and M Tyres. It recorded that information had been received that certain goods had been supplied by two sets of suppliers, Harland Tyres Limited, United Kingdom and Crown Sterling Direct, United Kingdom. It had then commanded the production of the documents.

39 It was agreed by Mr Mastrangelo that some of the notes made by Mr Colgan were abbreviated at the time and that several hours later Mr Colgan had translated those notes into his note books. Mr Mastrangelo had had a look at them and said, "That's basically my memory of it." Then he had signed them. He said the notes finally produced were, "as accurate as what we could recall."

40 It was put to Mr Mastrangelo in cross-examination that Mr Colgan was not writing anything down as it was said. Mr Mastrangelo said, "He certainly was." It was suggested that the notes were a best effort at recreating what was said some hours later. Mr Mastrangelo said, "No, not at all. They were taken at the time." Mr Mastrangelo was asked, "Why didn't you cause the balance of any conversation that was had with Mr Monk during that one and a half hour period to be recorded?" He answered, "Apart from this there wasn't a great deal of other conversation. Whilst the remainder of the search was being conducted there wasn't - there wasn't hardly any conversation at all."

41 Mr Colgan said that his original notes were largely written in abbreviated form and that when he had transcribed them to his notebook he had expanded them to a degree. In cross-examination it was put to him that he had recorded a conversation taking up to two and two thirds pages and that it could not have lasted longer than fifteen minutes at the outside. He denied that. He admitted that not everything that was said had been noted. That there may have been things said that he had not seen fit to note down. He agreed it was not a comprehensive and verbatim account of everything that happened in that one and a half hours period that the officers were in the applicant's office. When it was put to Mr Colgan that what the applicant had said was, "Expense figures for factory over there" and not sales figures for factory over there, Mr Colgan said, "That's what I heard him say." Mr Colgan denied he had a tape recorder and was recording the matter surreptitiously.

42 The applicant denied that Mr Colgan had been present during a conversation between him and Mr Mastrangelo and that Mr Colgan had taken a note on a clipboard or folder of what was said. He denied that Mr Colgan had been taking any notes of what was happening. Mr Monk denied that he had said that all the documents which related to entries were at his home and that he had said there were none at the office. He said he had told Mr Mastrangelo that they were upstairs and had mentioned that there were some at home. He denied certain other conversation about Global having sent an invoice for processing and Crown Sterling having sent an invoice for the purchase of casings.

43 At the hearing of this appeal it was submitted for the prosecution that the learned trial Judge had correctly concluded that until the time the applicant had made the admission that he had authorised payment on the invoices and the officers had seen a telegraphic transfer, he was not a suspect within the meaning of s23V. It was submitted that in any event, when the learned Judge had said that she would have exercised her discretion to allow the relevant part of the conversation into evidence even if she was wrong in her ruling, she was having regard to the entire circumstances, which were a very low key attendance by Customs officers executing a notice.

44 On the voir dire the learned trial Judge accepted the evidence of Mr Mastrangelo that initially the applicant was not a suspect within the meaning of s23V(1) of the Crimes Act. That the officers were investigating declaratory offences which may have resulted in a pecuniary penalty and that a company could be guilty of such an offence. The learned Judge held that the information (Exhibit F on the voir dire) which had been sworn to ground the notice supported Mr Mastrangelo's evidence in that regard. Further that the whole tenor of the conversation between Mr Mastrangelo and the applicant made it clear that the applicant was not being interviewed as a suspect. The officers were therefore not required to comply with s23V. The evidence which was allowed to be given to the jury was of the conversation between the officers and the applicant up to the time when the caution was administered.

45 The question of whether a person is a suspect within the meaning of s23V(1) was considered by the Court of Criminal Appeal of Victoria in Raso (1993) 68 A Crim R 495. At p506 of the reasons in that decision Phillips CJ and Marks J said:

"As was observed by Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 at 303, there is a clear distinction between a reason for suspicion that a person has committed an offence and a reason for investigating whether a person has done so: see also Walsh v Loughnan [1991] VicRp 75; [1991] 2 VR 351; George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112-113; [1990] HCA 26; 48 A Crim R 246 at 251; Heaney [1992] VicRp 85; [1992] 2 VR 531 at 548; [1992] VicRp 85; (1992) 61 A Crim R 241 at 258. The circumstances which obtained up to the time of finding the white powder suggest the latter rather than the former, that is, that there was reason for investigating whether the toy turtle contained a prohibited import rather than a reason for suspecting that a prohibited import was in the baggage of the applicant."

46 In my view it has not been shown that the learned trial Judge erred in her conclusion that the applicant was not being interviewed as a suspect.

In Raso at p507 Phillips CJ and Marks J said:

"Even if such a point (where she became a 'suspect') is thought to have been reached before that time, it is far from clear that s23v(5) did not apply and that a discretion would not have been exercised in favour of admission of the evidence. A court would be entitled to consider that there were special circumstances and that the admission of the evidence would not be contrary to the interests of justice. It is likely that there was a degree of impracticality about recording the subject conversation in the course of the search and an added difficulty of identifying some point before actual discovery of the white powder at which the applicant was a 'suspect' within the meaning of s23v(1) and thus at which it was necessary to commence tape-recording."

"In the event that I am wrong about that (ie the applicant not being a suspect), I do have a discretion in this matter as set out in subsection (5). I accept as truthful the evidence of the customs officers. Given the nature and content of the conversation, the maturity of Mr Monk, the nature of most of his complaints about the conversation, the fact that in no sense of the word could he be said to be in custody or constrained in any way, I am satisfied in the circumstances the admission of the evidence would not be contrary to the interests of justice up to the point where the caution is given." (My words in brackets)

47 In my view it has not been demonstrated that the trial Judge was wrong in her appreciation of all the circumstances surrounding the visits of the officers to the business premises and the applicant's home. The Judge also accepted as truthful the evidence of the customs officers. There has been no error shown.

49 The first ground of appeal is that the learned trial Judge erred in admitting into evidence the evidence of Mr Gould concerning certain events and conversations which occurred sometime after the conclusion of the commission of the alleged offences.

50 It was contended for the applicant that Mr Gould had in effect said that when he was about to purchase the business in question, he had had a conversation with the applicant, in which the applicant had told him that there was a dual invoicing system. That conversation was said to have taken place in about August 1995 which was after the relevant periods alleged in the two counts in the indictment.

51 The events the subject of the indictment were said to have occurred between 8 November 1989 and 18 July 1994. The conversation between the applicant and Mr Gould was more than a year after the last of the alleged events.

52 It was contended for the applicant that it was never made clear by the learned Judge in her charge to the jury, what use the jury should make of Mr Gould's evidence. Further, that the conversation had been fairly limited in its extent. It was submitted that it was simply not open for the jury to find that double invoicing must have been happening a year or more earlier in relation to count 1 and with respect to count 2, four years beforehand. It was submitted that the danger was that the jury could have concluded: "He was doing it in 1995, therefore he must have been doing it or something like it, between 1989 and 1994."

53 Counsel for the applicant submitted that leaving the relevant evidence to the jury was fraught with danger. It was submitted that the trial Judge should have said that if there was no other inference consistent with innocence, then the jury could draw an inference against the accused.

54 During the summing up the learned trial Judge made it clear that all the relevant shipments had occurred before Mr Gould became involved in 1995. Her Honour said that it followed that Mr Gould was not talking directly about the periods alleged in the indictment. Her Honour told the jury that Mr Gould had said that the applicant had told him that to save on sales tax, one document was to go to the shipping agent and the other one was to be destroyed. That Mr Gould was told to submit one document to Customs and to destroy the other one "and that's how they did it."

55 Her Honour warned the jury that if it decided that it was satisfied that the accused man had done something wrong in 1995 or at any period outside the period specified in the charges, it did not follow that he was guilty of the offences with which he was charged. Her Honour said that if the jury was satisfied that what Mr Gould had said was the truth, then it was evidence that the accused man had in effect made admissions to Mr Gould that he knew that there were two invoices at that stage, and that he knew that only one invoice went to the Customs Department to make a saving on duty and that that was the system that he had in place. Her Honour told the jury that this evidence went to the question of the accused's knowledge of what was happening and his participation in it. Her Honour pointed out that the applicant had said it was not correct that he had said those things to Mr Gould.

56 My conclusions on this Ground are expressed after the discussion of Ground 2.

57 Ground 2 was allied with Ground 1 in that it was said that if the evidence of Mr Gould was correctly admitted, the learned trial Judge had erred in not limiting its relevance to count 1 in the indictment, and within that count to the period between October 1993 and July 1994 covering shipments S48-68.

58 It was said that the witness Gould had purchased the business, F and M Tyres, in 1995. He had spoken to the applicant in August/September of that year concerning the business. The holding company which operated F and M Tyres was Laran Holdings Pty Ltd, the subject of the first count in the indictment. That Mr Gould's evidence was irrelevant to the operations of Waylen Enterprises, the subject of the second count in the indictment and that the learned trial Judge had failed to adequately direct the jury as to the specific and limited relevance of that evidence. The conversation with Mr Gould had not referred to the company the subject of the second count in the indictment. That company, Waylen Enterprises Pty Ltd, had been set up for Ms Sadik and her husband. Her husband had separated from Ms Sadik at some stage in 1990 and from then on her father, the applicant, had gone over to that company's premises and opened the doors and things like that. It was said that the learned trial Judge should have carefully separated the evidence as to the two companies. That Mr Gould had never had anything to do with Waylen Enterprises. That there were different suppliers to each company and it would have been dangerous for the jury to have simply drawn an open ended inference.

59 I note at this time that there was considerable evidence from other witnesses that the applicant had played a big part in the operations of Waylen Enterprises.

60 It was also submitted that if the jury could not find that there was continuous conduct, whether by inference or otherwise, then the evidence of Mr Gould could not be used as corroboration of other evidence.

61 The prosecution view was that the illegal scheme had successfully operated for at least five years, from 1989 through to 1994. That it had been operated with the full knowledge of the applicant. The prosecution alleged that the applicant had initiated the scheme with the Tarry family in the UK and that it had continued after Mr Stavrinides had acquired the business in October 1989. It was said that the entire thrust of the applicant's defence had been that he had had no knowledge of the scheme. That he had not been aware of the different invoices supplied to the Customs or the companies by the supplier or that duty was being assessed on the lower amount in the Customs invoices. Additionally, there was evidence that the applicant had been a shareholder in the supplier of the tyres in the UK. When two invoices had arrived in relation to a particular shipment Mr Gould had asked the applicant about them. He had told Mr Gould that he had an arrangement with that supplier. The applicant had accepted in his evidence that he had been challenged by Mr Gould. Mr Gould's evidence had been that the applicant had told him to send one invoice to the shipping agent and then to keep the other in his brief case or to destroy it, because that would save tax.

62 It was submitted for the respondent that the evidence from Mr Gould had been highly relevant to the question of the applicant's knowledge of the double invoicing scheme. That it was entirely reasonable for the jury to draw an inference that if the system had been successfully operating for the preceding five years, it was continuing to operate when Mr Gould was told that that was how to make a profit on the tyres.

63 Mr Gould's evidence was said by the prosecution to be relevant to the Crown's allegation that the applicant had a full knowledge of the scheme; also to his anticipated defence, which was in fact his defence, that he had had no knowledge of the scheme.

64 It was said that the same company, F and M Tyres had operated throughout the relevant period and that a supplier, being a company called Global Tyres, of which the applicant was a director and shareholder, had operated during some of the relevant period. It had not been denied by the applicant at the trial that there had been a double invoice scheme operating. The applicant had said that he had had no knowledge of this scheme and that it must have been initiated by Mr Aldworth, his daughter's husband. The respondent contended that this did not sit with the applicant explaining to Mr Gould that this was how to save on tax and to make a profit.

65 The learned trial Judge told the jury that Mr Gould's evidence had a limited purpose. The purpose of it was directed towards the question of the applicant's knowledge.

66 The respondent contended that Mr Gould's evidence had to be considered along with all the evidence as to the applicant's dealing with the suppliers in the UK, and his admissions that he had ordered the tyres and had paid for them or authorised the payments to be made. The applicant had admitted paying on the commercial invoices. That was proved by the telegraphic transfers. He must have known about the commercial invoices. The Crown had to prove he knew about the Customs invoices which were the false ones. They were the ones upon which the duty was being assessed. The applicant had said that he had worked in the shop fitting tyres and had had nothing to do with any paper work. However, the applicant had been controlling the company over a period of five years and dealing with all the commercial invoices. The evidence was that the applicant had ordered the tyres from the UK and had authorised the payments for the importations. He had made admissions to Mr Gould that he was aware of the double invoice scheme, and that he had a special arrangement with Global Tyres and "that's how you save sales tax." Further the ex-husband of the applicant's daughter, Mr Aldworth, had not been working for the companies for all of the relevant period during which the system of falsifying the invoices had operated. The applicant's conversation with Mr Gould was relevant to his knowledge of the scheme and was also a direct admission that he was involved in the operation. He had admitted paying the duty on the lower custom invoices. The suppliers were his contacts. The fact that he admitted to Mr Gould that he had a special arrangement with Global Tyres and that's how you save tax showed not only his knowledge, but his attitude. The applicant was the only person who had known the Tarrys in the UK. The Tarrys had organised some of the double invoices at the UK end.

67 The first count in the indictment relates to the period 8 November 1989 to July 1994. Within that period there was a shorter period which related to the importations by the second company.

68 In my view the admitting into evidence of the evidence of Mr Gould was consistent with the reasons of Kennedy J in the decision in Russell v R, unreported; CCA SCt of WA; Library No 9702345; 19 May 1997. In that case evidence was led of a scheme which had operated at a time preceding the period of the offences; also of conversations between the accused and other persons. It was held that the disputed evidence was relevant, particularly on the question of knowledge. Kennedy J said at p19 of his reasons:

"The facts may be compared with those in Blake v Albion Life Assurance Society (1878) 4 CPD 94, in which a principal's plea that he was unaware of the fraudulent practices of his agent was held to be rebuttable by proof of similar conduct of the agent on other occasions from which the principal invariably benefited.

The evidence in the present case is clearly to the effect that the company was the only pecuniary beneficiary of the fraudulent practices adopted at the abattoir. The appellant was in overall charge of the operations and he and his family were the shareholders."

69 In this case the applicant and his wife were the shareholders in the company the subject of the first count in the indictment. The applicant was the active director who was in charge of the operations. He authorised the relevant payments, and had at one time been a director and shareholder of a company in the United Kingdom which was assisting in the scheme. The inference was open on the evidence that the applicant had seen and authorised the payment of the commercial invoices and knew of the lesser amounts of the Customs' invoices on which the amount of duty payable was assessed.

70 With respect to the second count, evidence was given by the applicant's daughter, Ms Sadik, that the applicant had directed her how to pay the invoices.

71 In my view Mr Gould's evidence was relevant and the learned trial Judge's direction was sufficient to direct the jury's mind to the correct questions involved in the consideration of Mr Gould's evidence.

72 Grounds 1 and 2 of the appeal have not been made out.

73 The fourth ground of appeal was that the learned trial Judge erred in ruling that the prosecution did not have to prove that the value of the goods which had been declared to the Australian Customs Service was not the correct value for the purpose of the assessment of Customs duty.

74 It was submitted for the applicant that the prosecution had decided to prove the case without making any valuations. It was said that one cannot get to a situation where the Commonwealth was defrauded until it is known what the specific values were.

75 In this case pursuant to s83 of the Proceeds of Crime Act 1987 when combined with s29D of the Crimes Act 1914, the alleged offences required the proof of three or more fraud offences from which the company in each instance derived a substantial benefit. The allegation in each count was that the dishonest underdeclaration to Customs of the real value of each importation defrauded the Commonwealth by putting the Customs Service on behalf of the Commonwealth in a position in which it made a gross under assessment of the value of the imports.

76 In my view the gross undervalue of the customs was obvious, as the customs' invoices were for much lesser amounts - about one third - than the true price of the goods imported. The Barendse decision (1996) 93 A Crim R 210 is to be distinguished. That decision relates to different legislation.

78 The fifth ground of appeal is that the learned trial Judge failed to properly identify for the jury the evidence which was capable of corroborating the evidence of the witness, Ms Sadik, who was an indemnified Crown witness.

79 It was also contended that the learned trial Judge had not been specific enough in indicating which areas of Mr Gould's, Mr Stavrinides' and Mr Vassiliou's evidence were capable of corroborating the evidence of the witness Ms Sadik.

80 The question of corroboration was comprehensively discussed by Malcolm CJ in Markovina v The Queen (1996) 16 WAR 354 commencing at 364. The Chief Justice there quoted from the judgment of the Court of Criminal Appeal of five Judges in R v Baskerville [1916] 2 KB 658 at 667 where it was said that the nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. The Judges said:

"It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused."

81 It is sufficient if corroborative evidence which implicates the accused in an offence is circumstantial evidence of that person's implication in the crime. It is not necessary that corroborative evidence standing alone should establish any proposition beyond a reasonable doubt.

82 In Markovina Chief Justice Malcolm quoted Burt J (as he then was) in Khan v The Queen [1971] WAR 44 at 53 where his Honour said:

"In the present context propositions (II), (V), (VII), and (IX) are relevant. They are:

'(II) It is the duty of the trial Judge to warn the jury of the danger of convicting on the uncorroborated evidence of an accomplice.

(V) Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with a crime.

(VII) If the occasion arises for direction as in paragraph (II), it is the duty of the trial Judge

(a) to explain to the jury what is meant by corroboration as in paragraph (V): R v Clynes (1960) 44 Cr App R 158 and

(b) to give to the jury a broad indication of the evidence which the jury, if they accept it, may treat as corroboration: R v Goddard and Goddard [1962] 1 WLR 1282; [1962] 3 All ER 582.

(IX) If the warning is not given the conviction should be quashed unless there exists corroboration of such a convincing cogent and irresistible character that a reasonable jury if they had received the proper warning must have come to the same conclusion. It is only in such a case that the Court of Appeal will be able to hold that there has not been a substantial miscarriage of justice within the meaning of the proviso to 689(1) of the Criminal Code: R v Lewis [1937] 4 All ER 360."

83 Chief Justice Malcolm in Markovina said that in Medcraft v The Queen [1982] WAR 33Burt CJ, with whom Kennedy J agreed, had repeated that a trial Judge should tell the jury what corroboration means and give a broad indication of the evidence which, if accepted, affords corroboration.

84 Malcolm CJ referred to the judgment of the Lord Chief Justice in R v Reeves (1978) 68 Cr App R 331 at 332 where his Honour said:

"The reason for that is that an identification of evidence which is capable of corroboration is not always easy. Even lawyers find it difficult sometimes, and it is, therefore, quite vital that the trial Judge should not dispose of the matter as this Judge did merely by describing the dangers of acting on uncorroborated evidence unless he produces the backup direction which tells the jury what evidence can be regarded as corroborative for this purpose."

85 Malcolm CJ said that the trial Judge having given a corroboration warning, should tell the jury what is meant by corroboration. His Honour said he considered that the extent to which a trial Judge should indicate what evidence may be treated as corroboration would depend on the nature of the evidence relied upon.

86 It was contended for the applicant that this case had similarities to the situation in Markovina in that in this case there were two English witnesses, Mr Stavrinides and Mr Vassiliou who were obviously accomplices. They had given evidence as to the dual invoicing system. They had also participated in the scheme from the English end. Further there was the witness, Ms Sadik, who was the applicant's daughter. Ms Sadik had received an immunity from prosecution prior to the trial.

87 When directing the jury the learned trial Judge said:

"Now, from the accused's point of view, and again I say this with respect to Mr Luckman, I don't want to gloss over his best points and I'm only doing this very briefly, but his client says, 'Well, look, I wasn't in the office. I didn't set up the system. The invoices were sent from the United Kingdom to the Customs Department. I didn't know there were two invoices and I didn't know anything about it because I'm really a worker with my hands and I don't do these sort of things and there was an office system set up.'

Now, so far as Mr Stavrinides and Nicolou and the daughter and Mr Gould and the customs officers are concerned, he does not accept that their evidence is the truth and he says it's not accurate - they're not correct - they're either not accurate or they're not reliable or some of the things that they have said have been untrue, and that he was not - he never said these things to his daughter or Gould and, so far as the customs officers - I think there were very minor matters in relation to the customs officers but there were disagreements there.

Now on count 2, the Crown's position is a bit different because the Crown is dependent on the daughter's evidence to turn what otherwise might be regarded as acts of fatherly concern into a criminal offence, and that is that Mr Monk knew what Waylen was doing, and in fact he was doing it. Now it's different from count 1, as I have told you, because on count 1 he admits he's a director and at one stage he was the only working director, and he admits seeing commercial invoices and he admits that he was fixing prices.

Now on count 2 again the Crown relies on the evidence of the witnesses Stavrinides, Nicolou, the daughter and Mr Gould. Now it's necessary that I give you warning about some of the evidence and this is warnings about - that you must take into account when you are deciding whether you will accept that evidence and act on it. Now much of it, I think, as one or other of the counsel said to you, is common sense ... It is simply to make it clear to you that this is something that must be done in this case in case you hadn't thought about it. The first matter is the matter of the daughter's evidence, and you will be aware of the daughter's evidence. It is a matter for you to make an assessment but you may well think that the daughter was concerned that the daughter would be seen as an accomplice and indeed, she claims to know nothing, but some people may have thought, and certainly it appears that the Federal Police thought, that she could well be an accomplice in this matter.

Whenever evidence is given by a person that you think may well be an accomplice and certainly when evidence is given by a person that you know has been given immunity from prosecution, you are warned of the dangers of convicting on that evidence alone. It doesn't mean you can't, but you are warned about the dangers of it, and unless, after scrutinising the evidence with great care and considering the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied of its truth and accuracy.

Now as I have said, in those circumstances you may if you wish, accept the evidence of a person who could be regarded as an accomplice without any corroboration, but you have been warned of the dangers of doing that. The reason is clear enough. Where one person has been caught in a crime there may be a tendency for him or her to want to involve someone else as well, and in this case you know that the daughter has been given an immunity from prosecution and you should therefore look for corroboration of the evidence of a person who might be regarded as an accomplice."

88 The learned trial Judge then went on to say what corroboration was. Having done that the learned Judge said:

"It is my function to tell you what parts of the evidence are capable of amounting to corroboration. It's your function to decide whether or not the evidence is accepted by you; that is whether it does in fact amount to corroboration.

Now, on count 1 what the Crown would say to you is - the daughter's evidence relates to count 1 as well as count 2, because she is talking about a system. The Crown would say to you on count 2, and I think that I would say to you on count 2, that if you accept it, there is a considerable amount of corroboration in relation to count 2, that is evidence which if you accept it may corroborate her evidence by - which affects the accused by connecting or tending to connect him with the crime. It must be evidence which confirms in some material particular not only that the crime has been committed but also that the accused has committed it."

89 It may be that in the passage above, the learned Judge when referring to count 2, meant to say count 1.

90 The learned Judge then continued without stating that she was referring to count 1, and said:

"The evidence there would be if you say that the only reasonable inference from the documentation and from his position in the company and from what had to happen and the arrangements that had to be made, that he was indeed doing what the daughter says that he told her he was doing. Now that would, on that, corroborate the daughter's evidence. There is other evidence on count 1, as I have told you the Crown has already referred you to. There is Mr Nicolou, etc and you may look at them as support of the daughter's evidence but not corroboration in the legal sense. Corroboration is evidence which links in the accused."

91 The learned trial Judge then referred to the evidence of Mr Stavrinides and Mr Vassiliou. The Judge said that those persons might be regarded as accomplices and that accomplices cannot corroborate each other. Further that in the learned Judge's view their evidence could not corroborate that of Ms Sadik, "but that doesn't mean you ignore their evidence." The Judge then said:

"...but so far as looking for corroboration of Miss Sadik's evidence on count 1, you look to the inferences that you can draw from running the business including the evidence of Rae Bassell and the evidence of Mr Gould."

The learned Judge then reverted to count 2 and said:

"On count 2, again there is the evidence of Miss Sadik and there is the evidence of Nicolai and Stavrinides and Gould and the evidence of Mr Monk himself that he was going over there helping out, but when it gets to the point of Miss Sadik saying to you that he was running the business for her, there is no other evidence of that and you must - there is evidence that she is telling you the truth, if you accept it, in that those other people are saying the same things as she is saying, but other than that there is no other evidence that he was an agent, other than Miss Sadik's evidence, no evidence that you could say links him in and supports her evidence in the sense that Stavrinides and Nicolai are there and they are saying similar things and you can take that into account."

It would not have been clear to the jury what the following words in the above passage meant:

"...there is evidence that she is telling you the truth, if you accept it, in that these other people are saying the same things as she is saying, but other than that there is no other evidence that he was an agent, other than Miss Sadik's evidence, no evidence that you could say links him in and supports her evidence in the sense that Stavrinides and Vassiliou are there and they are saying similar things and you can take that into account."

"I am not for one minute suggesting that you shouldn't take that into account. All I'm saying is that it's not evidence that in law is considered to be corroboration of Miss Sadik's evidence, because, as I have told you, corroboration is not evidence that points to whether she is telling the truth. Corroboration is evidence which supports her by bringing him in and if it is to support her by bringing Mr Monk in, linking him in, you want something that is not another accomplice, so it can't be regarded as corroboration."

The learned trial Judge then said that she would go back over that again and said:

"Miss Sadik - I mean it may be said in some circles that she's not even an accomplice, but I think it's safer it we deal with her as though she is an accomplice and you take this into account. You may go into the jury room and say, 'Well, look, I don't think she is. I'm not satisfied' - it's not a matter of being satisfied - 'I don't think she is an accomplice and so these warnings don't apply to me.' "

92 The learned trial Judge then told the jury that they might think Ms Sadik was an accomplice, and that if that was the case, they must look for corroboration of her evidence. The Judge said:

"...corroboration is not simply evidence that says Miss Sadik is telling the truth. It is evidence that corroborates her by connecting or tending to connect the accused with the commission of the offence."

93 The Judge then said that accomplices cannot corroborate each other and made some comments about that and then said:

"Now, so far as count 2 is concerned, you know what the crown says about that and that they rely on that evidence. What Mr Monk says is that it's nonsense; that his daughter is not telling the truth; that he did know Ron; that if Waylen was doing whatever it was doing, he didn't know that they were doing it. He was helping out as a fatherly concern, not helping by committing criminal offences; that he was not the agent for Waylen; that he went out and helped on occasions but he was not in a sense doing the work of the company as the agent with the consent of Miss Sadik."

94 Because of the importance of Ms Sadik's evidence concerning count 2, the directions concerning corroboration and the evidence of the accomplices with respect to that count, needed to be clearly set out for the jury and to be separated from the evidence against the applicant on the first count. In my opinion the directions concerning the second count would not have sufficiently informed the jury as to how it might view the evidence from the various witnesses which was referred to by the learned Judge and what that evidence had been. The evidence on count 2 was not sufficiently separated from that on the first count.

95 The conviction on count 2 should therefore, in my view, be quashed with a direction for a retrial on that count.

96 On a fair reading of the summing up, it is my opinion that the learned trial Judge referred the jury to the relevant evidence against the applicant on count 1 and the warnings given concerning corroboration and accomplices concerning that count were sufficient. Additionally, the Crown case against the appellant on count 1 was overwhelming. It relied primarily on the appellant's position in the company and his knowledge and actions in deceiving the Customs into assessing duty on the lesser of the two invoices in each case.

97 This ground is that the learned trial Judge erred in law in that she failed to give proper accomplice directions in respect of the witnesses Stavrinides and Vassiliou.

"One is concerned about Stavrinides and Nicolai, that whether they had a motive for saying the things that they did ... but they too in a sense may be regarded as accomplices and accomplices can't corroborate each other."

98 Her Honour then discussed the corroboration evidence concerning count 2 which is set out above. The Judge emphasised the need for corroboration of Ms Sadik's evidence and then repeated that "accomplices can't corroborate each other". She gave an example about five people robbing a bank and said again that:

"Accomplices can't corroborate each other. That's not enough ... You do have four people saying it but you keep in mind that they are all accomplices. They can't corroborate each other and while you may accept their evidence and convict on their evidence, you are warned of the dangers of doing so and corroboration is evidence, other than other accomplices, that links or tends to link the accused with the commission of the offence."

99 In my view the learned Judge gave a sufficient accomplice direction concerning the evidence on count 1. Ground 6 is not established in so far as count 1 is concerned. Count 2 has already been discussed.

100 This ground is that the learned trial Judge failed to adequately direct the jury on the question of similar fact evidence.

101 The applicant complained that the learned trial Judge had directed on similar fact evidence in a way which "does give an unnerving apprehension that the jury may well have thought that once they had convicted him of one (importation), it was sufficient for them to say, 'That's it'." (My words in brackets).

"...in relation to count 1 there are 70 shipments, that is 1 to 68 and H13 and H14. So far as the accused is concerned the Crown says to you, in effect, that if you're satisfied that this man knew and participated in one of these, then you may take that into account when you're deciding if he knew and participated in all of them, that is those that you find have taken place even innocently."

"If you say, 'There's lots there,' so you throw them all in the air, 'he must have done some,' it doesn't work like that. That's not how similar fact works."

"If you get to the stage where you say, 'Well, they're all the same. If he has done one he must have done the others,' if it happened, this is what we call similar fact evidence and it's evidence of a system but it has got to be a system and it has got to be strikingly similar ... You have got to be satisfied beyond reasonable doubt of one of them, that is that he knew and participated in one, before you can use it as similar fact evidence in relation to any other charge.

Where similar fact evidence is relied on, you must be satisfied beyond reasonable doubt that the accused did in fact commit the offence before you can use it in relation to the other counts as similar fact, that is that he knew and participated in one of these shipments, so that when you go to look at whether he knew and participated in another one of those shipments, you can take into account that you were satisfied beyond reasonable doubt that he knew and participated in the others.

I'm not saying to you, and I make this very clear, that you can, 'If he has done it once he has done it 70 times,' but if you're satisfied of one of them, then in the others where a similar system is used, it's open to you to use the similar fact evidence against Mr Monk, but you have got to firstly be satisfied of one. You can't then say, 'If he has done one, he has done 70.' But if you are satisfied of one, then in the others, where a similar system is used, it is open to you to use the similar fact evidence against Mr Monk but, as I say, that doesn't detract from the fact that you would need to determine that it actually happened, I mean even innocently, before you get to that point." (My underlining)

105 In Pfennig v R [1995] HCA 7; (1994) 127 ALR 99 at 113 Mason CJ said:

"Very often, propensity evidence is received when there is a striking similarity between different offences or between the evidence of different witnesses. (Markby (1978) 140 CLR at 117; Perry (1982) 150 CLR at 603, 607, 610; Sutton (1984) 152 CLR at 535, 549, 559, 566-7). In particular, it was recognised that the existence of such striking similarity is necessary in cases such as Sutton where the prosecution seeks to lead the evidence on the basis that the similarity between different offences founds a conclusion that they must have been committed by the one person with the consequence that evidence which would be admissible to show that an accused committed one of the offences is admissible to prove that he or she committed another or the others of them...In Hock v R [1988] HCA 50; (1988) 165 CLR 292 at 294 Mason CJ, Wilson and Gaudron JJ said:

'Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force ... That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.'"

"An important distinction is to be drawn between cases such as the present case in which the 'similar facts' are not in dispute and cases in which such facts are in dispute. Thus, their Honours said:

'Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings, evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.'"

107 The learned trial Judge's direction on similar fact evidence, in this case, was a part of a lengthy direction after a long trial which, so far as count 1 was concerned, involved 70 shipments in which the method used to escape the payment of the proper duty was the same. In my view the direction sufficiently told the jury how they could use one proven set of facts to assist in their deliberation concerning others. This ground of appeal is not made out.

108 This ground is that there has been a miscarriage of justice due to the accumulation of errors by the learned trial Judge.

109 In so far as count 1 is concerned, there is no accumulation of errors as presupposed in this Ground of Appeal. In my view it is not established.

110 The result of the appeal should therefore, in my view be that the conviction on count 1 should stand and that on count 2 should be quashed with a new trial ordered for that count.