R v McLean [2000] VSCA 217

R v McLean [2000] VSCA 217 - VSCA 2000 case summary — Zoe

[13]

T1 had its genesis in about mid-June 1990 when representatives of Pro-Quip, including one C.M. Haines, a director, negotiated directly with representatives of Mobil, including McLean, on a price for the supply of jerry cans; and on 19 June 1990 Pro-Quip gave Mobil a written quotation (of which McLean was aware) for the supply direct to Mobil of 20,000 of them, specifically described, each of 20 litres capacity. The unit price quoted was $13.32 (including sales tax), "f.i.s. August 1990 Mobil warehouse Yarraville". Payment was to be made at sight against letter of credit or by agreed alternative. After some months' delay, details of which are not now important, Squires (not Mobil) placed an order on Pro-Quip for 30,000 jerry cans of 20 litres capacity "to be supplied as per specifications your letter [scil. to Mobil ] 19-6-90" at $13.32 each, to be delivered to "Mobil Warehouse Yarraville" in July and August 1991. There was no reason why Mobil could not have ordered the goods directly from Pro-Quip, to whom Squires was at that time quite unknown. The order from Squires contained no reference to terms of payment and Pro-Quip, unable to proceed with the order without some security, sought it from McLean, who authorised a letter dated 2 May 1991 to be signed over his name to say to Haines that it was "confirmation that Mobil Oil (Australia) Ltd require an order of 30,000 units of 20 litre Jerry Cans at a cost of $11.10 plus 20% sales tax [i.e. amounting to $13.32] per unit." Pro-Quip continued to press for an official order and, on 27 June 1991, McLean himself signed a letter to Haines saying "We herewith confirm that we have placed an irrevocable order for 30,000 Jerry Cans with our Mobil Merchandise Distributors, Squires Trading Company, who we understand have placed an order (No 044) with you, for delivery July/August our warehouse in Yarraville." Unsurprisingly, those informal, irregular communications were unacceptable as security and on 7 August 1991 Pro-Quip pressed urgently by fax for an official order so that a letter of credit might be raised. McLean thereupon (through a subordinate) issued an order upon Squires,[5] using a blanket order release notice, for 30,000 20-litre jerry cans at a unit price of $16.50. The notice was irregular because the blanket order under which the notice was purportedly given, although in favour of Squires, did not cover jerry cans. Moreover the value of the order exceeded what was permissible under the blanket order procedure. Nevertheless, Squires then issued to Pro-Quip a replacement order, for delivery in October, but still there was no satisfactory security for payment. Ultimately, on a pretext, Squires peremptorily cancelled the order but reinstated it on 11 October (as a result of McLean's intervention), as to 20,000 units, for delivery by 30 December. At length 19,096 units were delivered by Pro-Quip late in 1991 and early in 1992 pursuant to that order. Squires paid Pro-Quip for them at the agreed unit rate of $13.32 f.i.s. and no more - $254,358.72 in total. In the meantime Squires, on 14 October 1991, had invoiced Mobil for 20,000 jerry cans at the unit rate of $16.50 - $330,000. Despite the discrepancy between the number of units invoiced by Squires and the number delivered, payment in full of the invoice from Squires was authorised by Mobil's Marketing Director in reliance on McLean's written recommendation. Mobil's cheque for $330,000 in favour of Squires was personally collected by McLean from the appropriate paying officer on 31 January 1992 and paid. Squires also submitted five invoices to Mobil in January 1992 for what was described as "deconsolidation, receiving, temporary storage and transport" in respect of some of the jerry cans that had been supplied by Pro-Quip. Each of those invoices was individually approved for payment by McLean and a cheque for $43,448.92 to cover them was drawn by Mobil in favour of Squires on 12 May 1992 and paid. The Crown alleged that Squires had had no right to charge that sum, that in any event the services for which the charge was made were not performed, that the invoices were paid only because McLean authorised payment and that he did so knowing of their falsity. The two cheques drawn by Mobil, referable to T1, were the subjects of counts 15 ($330,000) and 18 ($43,448.92) of obtaining property by deception. The cheques, aggregating $373,448.92, exceeded by $119,090.20 what was paid by Squires to Pro-Quip for the supply of jerry cans comprised in T1, for which excess Mobil received no benefit.

[15]

T2 concerned a quantity of 10 litre jerry cans in respect of which Pro-Quip, having learned of Mobil's interest in a further shipment, had tendered a quotation to Mobil on 11 May 1992 for their supply at a unit price of $10 or $10.15, depending on colour. As I have noted[7] the business of Squires was sold before T1 was completed, and McLean had assured the new management of Squires that the existing "promotional deal" would continue for the foreseeable future. McLean nevertheless arranged that an order for 10 litre cans be placed initially not with Squires (under its new ownership) but with a company named Tanbros Nominees Pty. Ltd. Tanbros was a defunct nominee company having no connection with importing or the automotive industry. Its proprietor was one Boon Tan, a travel agent known to Penfold. The latter was senior purchasing officer at head office, until he left Mobil's employment in mid-May 1992, and had arranged with Boon Tan to use Tanbros in the transaction in return for payment of a commission. About two months before Penfold left Mobil there was a meeting between McLean, Penfold, Haines and others at which McLean told Haines that Penfold would be acting as a consultant in respect of T2 and should be contacted for payments. Pro-Quip's quotation of 11 May, prepared in ignorance of Penfold's impending departure, was therefore marked for his attention. After receiving Pro-Quip's quotation of 11 May Mobil received a forged document on the letterhead of Tanbros, bearing the same date, purporting to be a quotation for the supply by Tanbros of 50,000 10-litre jerry cans at a unit price of $14.40. Mobil's order, to a value of $720,000, was given on 14 May to Tanbros upon that quotation. The order was amended on 4 November 1992 by reduction of the quantity to 35,000 units. Meanwhile, on 2 June 1992 Haines sent a further quotation to McLean for the supply of 50,000 jerry cans at a unit price of $9.85, excluding sales tax. On 6 July 1992 McLean prepared in his own handwriting, on a printed Mobil Requisition Purchase Order form, a request to Pro-Quip for supply of the 50,000 jerry cans for T2 specifying a unit price, including sales tax at 20%, of $11.82. The form McLean used was not appropriate and, since an order number for the transaction had already been committed to the order given to Tanbros, McLean later provided one by telephone to Haines, who wrote it on the document himself. The order to Pro-Quip was evidently also amended by reduction to 35,000 units.

[36]

The submission for the applicant repudiated absolutely the notion that there was any system to be discerned in his relevant conduct, and also that the joined counts were for offences that in any relevant sense were founded on the same facts or formed or were part a series of offences of the same or a similar character. It was suggested, for example, that the only essential point of similarity between the counts of obtaining property by deception was that they related to jerry cans, which was no more relevantly significant than to say, for example, that all the objects of a series of art frauds were pictures. While it was conceded that, in all cases, the applicant was an employee of Mobil, that was said to be no more than an inessential or co-incidental feature. These asseverations appear to me to ignore without justification the several matters relied on by the Crown that I have summarized in paragraph [21]. Sequential operations need not necessarily be executed identically before one may fairly infer that they were done according to a system; and they may have a common foundation of fact - a common factual basis - or be or form part of a series, in the relevant sense, without necessarily exhibiting many obviously common characteristics, provided that they have, for example, a common genesis or, on some other basis, may fairly be treated for the purposes of the trial as linked or associated, rather than separate or discrete. I do not purport to be exhaustive, and it would be idle to try. No formula or precept can set out with unerring particularity a means of determining what will, and what will not, satisfy the requirements of the Presentment Rules for permissible joinder of counts. As Winneke, P. observed in R. v. Renzella,[12] the Rules were designed to have a flexible and not a not rigid operation. It could not be otherwise: the Rules were, after all, intended to apply across the board, sensibly and serviceably and with practical adaptability. They were manifestly designed to be interpreted and applied primarily on the spot and in the field, not by a court of appeal. In this case, as it happens, the Rules were interpreted and applied, not by the trial judge, but without evident reservation by counsel on either side. I should not be prepared, at this distance, to say that both counsel were wrong. In my opinion the Rules are readily capable of accommodating a conclusion at least that the four counts specifically referable to T2 and T3 might be joined with the two counts specifically referable to T1, irrespective of the answer to the evidentiary problem that the judge was asked to decide, on the footing that they were or formed part of a series of offences of the same or a similar character.

[57]

Notably, all the offences with which the applicant was charged are constituted under Division 2 of Part 1 of the Crimes Act, which Division bears the heading "Theft and Similar or Associated Offences"; and the statutory law with respect to "Secret Commissions Prohibition" is set out in an unnumbered subdivision of that Division in ss.175 - 186. Without rehearsing their terms it is sufficient to state thus the combined effect of ss.176, 177 and 186(2), so far as the applicant was concerned, in the circumstances of this case: proof by the Crown of receipt by the applicant or his wife of money given by Phayre or Squires, without the assent of Mobil, cast the burden on the applicant to prove, on the balance of probabilities, that the money was not received corruptly in contravention of s.176(1).[34] The matters requiring such proof by the Crown were not in serious contest, and the judge duly instructed the jury upon the burden of proof to be assumed by the applicant in the event that the Crown had satisfied them of those matters. By comparison, the onus of proof in respect of the six offences of obtaining property by deception, charged against the applicant under s. 81(1) of the Crimes Act (found in another unnumbered subdivision of Division 2 of Part 1 and headed "Fraud and Blackmail") lay conventionally on the Crown throughout, and not at all on the applicant. Basing herself on the distinction, counsel for the applicant submitted that joinder of counts in respect of some of which the onus of proof differed, or might potentially differ, from the onus in respect of another or others of them was either impermissible or, at least, should not have been permitted; and that, because it had occurred, there had been a mis-trial. The basis for the contentions was not made entirely clear but, so far as I understood, it was twofold. First, it was said that the joinder of counts in respect of which the accused bears or might bear an onus, and counts in respect of which he does not, requires separate directions to the jury as to categories of onus such as would be likely to generate misunderstanding or confusion on the part of the jury. Secondly, it was said that an accused who bears or potentially bears an onus of proof in relation to some counts only will be inexorably or practically forced to go into the witness box and give evidence in relation to those, thereby submitting himself to cross-examination generally, and thus losing the option of remaining silent which he might choose if faced only with the counts in respect of which he bears no onus. Hence, as it was argued, any such joinder should be regarded as impermissible under the Presentment Rules or should, at least, necessarily have been disallowed as a matter of discretion or should now be regarded as having produced a mis-trial. I think that there is no substance to these contentions.

[59]

A case in which a count where the accused bears no onus of proof is joined with a count where the accused does (or might) bear an onus should not necessarily present any greater obstacle to the jury's comprehension of "the great distinction" than cases[40] where there is but one charge. I can see no reason in principle why a count alleging an infringement of s.176(1) of the Crimes Act can not, as a matter of technicality, be joined with a count in respect of which the accused bears no onus. The section derives from s. 2 of the Secret Commissions Prohibition Act 1905 of this State, which Act contained from the outset, as s.14, a "reverse-onus " provision that was reproduced identically in material respects in succeeding consolidations of the Crimes Act down to s.186(2) of the Crimes Act 1958.[41] Sooner or later all the other States and the Commonwealth enacted counterparts of the Victorian Act of 1905; and the comparable legislation of all the other States, save New South Wales, contained a "reverse-onus" provision similar to that in the Victorian Act. Section 2 of the Victorian Act of 1905 was in material respects replicated in s.1(1) of the Imperial Prevention of Corruption Act 1906, which was amended in 1916[42] to add a "reverse-onus" provision[43] of the kind that was originally enacted in the Victorian Act of 1905. In R. v. Carr[44] the accused had been charged, as an officer in the British army, with two offences: one of improper disposal of stores under s.40 of the Army Act and the other under s. 1(1) of the Prevention Of Corruption Act 1906_._ The "reverse-onus" provision was applied in the case of the latter charge, on which there was a conviction by court -martial, but it could not apply to the former. It does not appear to have occurred to anyone in the course of the unsuccessful appeal that the two charges were on that account improperly joined. Indeed, so far as I can find there has been no suggestion, in the 95 years of the existence of s.186(2) and its numerous predecessors and counterparts, here or elsewhere, that a count to which they might have applied should not be joined with a count to which they could not be applied; and I can find no similar suggestion flowing from any other statutory "reverse onus" provision. Of course that is not conclusive, but if the point now taken had merit one might expect it to have been taken before now. So here, I should not be prepared to say that there was improper joinder simply because s.186(2) was capable of application to some counts against the applicant and not to others. If the joinder was otherwise authorized I cannot see that it could become unauthorized merely because the accused might be induced to give evidence for fear of the application of s.186(2). There was no submission at the trial, at any stage, that the application or possible application of s.186(2) should result in the non-joinder or severance of the secret commission counts. Nor was it ever suggested that the applicant was induced to give evidence only because of the joinder of counts which had been made. The submissions that s.186(2) precluded the joinder of the secret commission counts with other counts, or that its application produced a mis-trial, should be rejected.

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Judgment (122 paragraphs)

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