R v Mill

SUPREME COURT OF QUEENSLAND

CITATION: R v Mill [2007] QCA 150

PARTIES: R v MILL, Darren Lindsay (appellant)

FILE NO/S: CA No 255 of 2006 / DC No 2021 of 2006

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Cairns

DELIVERED ON: 11 May 2007

DELIVERED AT: Brisbane

HEARING DATE: 20 April 2007

JUDGES: de Jersey CJ, Keane JA and Lyons J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Appeal allowed in part / 2. In relation to count 1, conviction set aside and a new trial ordered. Otherwise, appeal dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of fraud – where appellant unrepresented at trial – where during trial Crown suggested that analysis of forensic accounting report commissioned by appellant disclosed further offences – where appellant claimed not to have had access to report – whether appellant was thereby induced not to call or give evidence – whether appellant was denied opportunity to tender report or call witness – whether Crown was obliged to tender report or call witness – whether appellant lost fair chance of acquittal / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where defence arguably available under s 22(2) of the Criminal Code Act 1899 – whether jury sufficiently directed in this regard / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AVERMENTS – UNCERTAINTY, DUPLICITY AND AMBIGUITY – where more than one offence charged in count one of indictment – whether indictment bad for duplicity / Criminal Code 1899 (Qld), s 22(2), s 408C(1), s 441, s 567(3), s 568(3) / Lawless v The Queen (1979) 142 CLR 659, applied / MWJ v The Queen (2005) 80 ALJR 329, cited / National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68, cited / Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd's Rep 379, cited / R v Katsidis; ex parte A-G (Qld) [2005] QCA 229; CA No 47 of 2005, 24 June 2005, applied / R v Lawrence (1996) 138 ALR 487, applied / R v Stafford*; ex parte A-G (Qld)* [1997] QCA 333; CA No 40 of 1997, 23 September 1997, applied / Richardson v The Queen (1974) 131 CLR 116, distinguished / RPS v The Queen (2000) 199 CLR 620, considered / The Queen v Apostilides (1984) 154 CLR 563, applied / Van Den Hoek v The Queen (1986) 161 CLR 158, applied / Whitehouse v Jordan [1981] 1 All ER 267, cited

COUNSEL: R J Clutterbuck for the appellant / M J Copley for the respondent

SOLICITORS: Mylne Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the orders proposed by His Honour, and with his reasons.

KEANE JA: On 2 August 2006, the appellant was convicted upon the verdict of a jury of two counts of aggravated fraud and one count of fraudulently falsifying a record. On 1 September 2006, the appellant was sentenced to concurrent terms of imprisonment, the longest being five years to be suspended after a period of 18 months with an operative period of five years.

The trial occupied 12 days. At the outset, the appellant was represented by Senior Counsel. At the beginning of the sixth day of the trial, the appellant's legal representatives withdrew. The appellant did not seek an adjournment to arrange legal representation when the learned trial judge invited him to say whether he wished to seek other legal representation. The appellant conducted his own defence and did not, thereafter, seek an adjournment to obtain legal assistance. On the appeal, the appellant has had the benefit of legal representation.

The appellant challenges his convictions on a number of grounds and seeks to adduce further evidence in support of some of those grounds. Originally, the appellant also sought leave to appeal against his sentence, but that application was abandoned.

The appellant's grounds of appeal arise largely from what are said to be irregularities in the manner in which the trial proceeded. The principal issue agitated on the hearing of the appeal was an attempt to show that the trial miscarried because the appellant failed to give evidence himself and to call evidence from a forensic accountant, Mr McKinnon. In order to put the appellant's arguments in their proper light, it is necessary first to summarise briefly the evidence at the trial.

The Crown case

Count 1

The appellant was charged in count 1 of the indictment with a contravention of s 408C(1)(a)(i) of the Criminal Code 1899 (Qld). Because the appellant now seeks to raise an objection to the terms in which count 1 was framed, some attention must be paid to its terms. Count 1 charged "that between the first day of April 1998 and the thirtieth day of June, 2001 at Cairns in the State of Queensland [the appellant] dishonestly applied to his own use or the use of another sums of money belonging to Suga Pty Ltd and Seiko Suga". Count 1 also alleged two circumstances of aggravation, namely, that the appellant was a director of Suga Pty Ltd, and that the money dishonestly applied was of a value of more than $5,000. At trial, the evidence supporting the Crown case was to the effect that the amount was $130,021.53.

The appellant was, during the period of the charge in count 1, the accountant for Suga Pty Ltd and Mrs Seiko Suga. The name of his firm was Mill Partners. In 1996, the appellant commenced a sexual relationship with Mrs Suga's daughter, Ms Reo Jenna. The appellant became a director of Suga Pty Ltd. Originally, the other director of Suga Pty Ltd was Mr Osami Suga, Mrs Suga's husband. Mr Osami Suga died on 26 January 1999. Thereafter, during the period in question, the appellant was the only director of Suga Pty Ltd and the sole signatory on its bank accounts.

From April 1997, Suga Pty Ltd established and operated a restaurant or restaurants under the trading name "Mikaku". The appellant's company, Mill Corp Pty Ltd, held a 20 per cent shareholding in Suga Pty Ltd, and the trustee of the Suga Family Trust held a 70 per cent shareholding in Suga Pty Ltd, with the remaining 10 per cent being held by an unrelated third party.

Mrs Suga was an important witness for the Crown as was her daughter, Reo Jenna. Mrs Suga said that, on 1 December 1999, at the appellant's request, Mrs Suga wrote out a cheque for $50,000 in favour of Suga Pty Ltd which she gave to the appellant. Mrs Suga said she gave the appellant the cheque because she understood that the restaurant business was in financial difficulties. She believed the money would be repaid in monthly instalments of $10,000, beginning in 2000.

The Crown called evidence from a Mr Philip Bennett, a forensic accountant, who gave evidence of the "paper trail" relating to these and other transactions. Between 30 November 1999 and 5 January 2000, Suga Pty Ltd paid Mill Corp a total of $45,000 by six cheques. At trial, there was no issue as to whether these payments, or indeed any of the transactions referred to in the three counts on the indictment, had occurred. The real question in issue was whether the appellant's role in the transactions had been dishonest.

Mr Bennett also gave evidence of the absence from the appellant's records of documentation which might support the proposition that the payments by the appellant to himself, his firm or company were made by way of payment for services rendered by him, or reimbursement for expenses incurred.

On 22 February 2000, the appellant paid $2,000 for work at one of the restaurants using Mrs Suga's Visa Card. Mrs Suga said that the signature in question was not hers. She did not remember authorising anyone to use her Visa Card to make the payment.

On 27 February 2001, Mrs Suga transferred $10,634 from her bank account to the account of Mill Partners. Mrs Suga's recollection was that she made this transfer at her daughter's request to enable Suga Pty Ltd to pay a tax debt owed by it. Only $5,634 was paid by the appellant to the Australian Taxation Office ("ATO").

On 3 May 2001, the sum of $9,000 was transferred from Mrs Suga's bank account to the account of Mill Partners. Mrs Suga was overseas at this time. Reo Jenna gave evidence that she organised the transfer because the appellant told her that Suga Pty Ltd was indebted to the ATO and had been for two years. She also obtained a further $1,000 from her mother's accounts using an EFTPOS machine. The total of $10,000 was applied by the appellant to meet the debts of Mill Partners.

Early in 2001, the appellant arranged for a line of credit to the extent of $130,000 to be established in favour of Mrs Suga with the ANZ Bank. Mrs Suga said that she drew on this line of credit to make a deposit of $80,000 into the account of Mill Partners because the appellant told her that, unless she made the payment, they would lose the restaurant. The deposit into the account of Mill Partners was made on 2 February 2001. The remainder of the $130,000 was deposited to Mrs Suga's account with the ANZ on the same day. It was this $50,000 which provided the liquidity to enable the payment of the $10,634 referred to in paragraph [13] above and the $10,000 referred to in paragraph [14] above. A further $5,000 from this deposit was used to repay a debt owed by the appellant to a Mr Blackman.

On 7 December 2000, Mr Blackman, a friend of the appellant, gave the appellant $5,000 in cash by way of a loan. On 31 January 2001, the appellant repaid the loan by a cheque in Mr Blackman's favour drawn on the account of Suga Pty Ltd. Mr Blackman said that the appellant told him that the appellant needed the $5,000 to pay the wages to staff at the restaurants. It was established that all wage payments at this time were made by cheques drawn on the bank account of Suga Pty Ltd. On 14 January 2000, AGC Limited lent $74,219 to Suga Pty Ltd. By four cheques dated between 11 January 2000 and 14 January 2000, Suga Pty Ltd paid a total of $50,000 to Mill Corp.

On 16 March 2000, AGC Limited lent a further $25,967 to Suga Pty Ltd. On 17 March 2000, the appellant drew a Suga Pty Ltd cheque in favour of Mill Corp for $10,000.

According to Mr Bennett, between January 1999 and 23 April 2001 payments totalling $137,621.53 from transactions which were not adequately recorded in the financial records of Suga Pty Ltd or the appellant were made by Suga Pty Ltd to Mill Corp or Mill Partners. In August 2001, a payment of $7,600 by Mill Corp to Suga Pty Ltd reduced the debt to $130,021.53. The prosecution case in relation to count 1 on the indictment was that the appellant dishonestly obtained this sum from Suga Pty Ltd.

Count 2

In relation to count 2, the appellant was charged with a contravention of s 408C(1)(c) in that, between 1 January 2001 and 5 February 2001, he dishonestly induced the ANZ Bank to deliver property, namely credit in the amount of $130,000, to Seiko Suga.

The application for the line of credit referred to in count 2 was made on 5 January 2001 by Mr John Watts, a mortgage broker. The application was prepared by Mr Watts, and was supported by documentation provided to Mr Watts by the appellant. This documentation included a group certificate for the year ended 30 June 2000 which showed Mrs Suga's income to be $52,000. Another document showed her income for this period as $52,698. There was another document which purported to calculate Mrs Suga's income for the year ended 30 June 1999 at $43,609. Mrs Suga said that her income was only $200 per week. Mrs Suga also said that she thought that the appellant was arranging to refinance her existing mortgage with a different bank, ie effectively transferring her mortgage from Westpac to the ANZ but not creating new indebtedness. According to Mr Watts, the appellant provided him with a letter which asserted that Mrs Suga was the General Manager of Suga Pty Ltd and that she had an annual income of $62,400. The Crown case was that both of these assertions were false, and that if the bank had known the truth of these matters, it would not have agreed to give Mrs Suga the line of credit for $130,000.

Count 3

In count 3, the appellant was charged with a contravention of s 441 of the Criminal Code in that, between 1 November 2000 and 5 February 2001, he fraudulently made use of tax returns which he knew to be false in that they overstated Mrs Suga's income. These returns were used for the purposes of the application to the ANZ for the line of credit.

The Crown also relied upon a record of interview dated 3 December 2001 between investigating police and the appellant in which he was queried about these transactions. He seemed to suggest that he had arranged with Mr Suga to be paid $10,000 per annum for his services to Suga Pty Ltd in relation to the operation of the restaurants. His responses were rambling and, it might be said, evasive.

The appellant's case at trial

The appellant did not call evidence or give evidence on his own behalf. The appellant's case was that the payments made to his firm or company were payments of fees for his services or reimbursement for services rendered or payments made by him on behalf of Suga Pty Ltd as the operator of the restaurants. He also contended that, to the extent that he signed documents as Mrs Suga, that was consistent with a practice within the family where one family member would sign the name of another in business transactions.

Because the appellant was unrepresented, the Crown Prosecutor did not address the jury. The appellant thus had the advantage of the sole address to the jury.

The arguments on appeal

On the hearing of the appeal, affidavits by the appellant, by his solicitor and by Mr Ian McKinnon of the firm Vincents were tendered in support of an application to adduce further evidence. The further evidence upon which the appellant sought to rely was evidence of Mr McKinnon, including a forensic accounting report made by him on 15 March 2007. This report annexed an earlier forensic accounting report by Mr McKinnon ("the first Vincents' report") which had been prepared by Mr McKinnon in relation to the trial. The relevance of this further evidence can only be understood in the context of a discussion of grounds 4, 5 and 6 in the appellant's notice of appeal. I will, therefore, proceed to discuss these grounds of appeal.

Grounds 4, 5 and 6

The argument for the appellant in relation to the further evidence was advanced under the rubric of these grounds. It is convenient to deal with them together.

These grounds are in the following terms:

"4.The learned trial judge permitted the Crown (without particularisation) to represent that should the appellant (when unrepresented) conduct his case in a particular manner, in reliance upon forensic evidence that contradicted the Crown case, that the appellant would be doing so at his peril as:

(a)The prosecution analysis of the forensic report commissioned by the appellant revealed the alleged commission by the accused of other criminal offences;

(b)The Crown had not adduced rebuttal evidence in chief, to negative any defence of the appellant, as the forensic report was not before the Court in circumstances it would not have been so before the Court in any event.

The appellant was prevented from or persuaded against cross-examining a witness on the strength of the defence commissioned forensic report, the appellant having then not elected to call or give evidence.

In the premises, the unrepresented appellant was dissuaded or likely to have been dissuaded from calling or giving evidence."

These grounds of appeal emerged from an exchange which occurred between the appellant, the Crown Prosecutor and the learned trial judge while the appellant was cross-examining the arresting officer, Detective Sergeant Heaton. The appellant was asking Detective Sergeant Heaton questions about the course of her investigation and a suggestion that statements had been obtained from some 20 witnesses other than those to be called by the Crown at the trial. The following exchange took place:

"… Look, do you believe the police have a duty to the community that someone is charged correctly - investigated, sorry, before they’re charged?-- Yes.

In this case that hasn’t occurred, has it?-- I believe it was - it occurred sufficiently to have the matter committed and put into the hands of the DPP where it can - could be then taken further.

It didn’t happen until four years later. Don’t you think the community is owed some responsibility from police officers to fully investigate a matter? Otherwise we’d have everyone accusing everyone of any little bit of fraud, credit card fraud, whether they’re family living together or what have you. Isn’t it your responsibility to the citizens of Cairns to investigate these things properly before bringing any charge whatsoever?-- I believe it is, yeah, I believe we investigated to our level––

I suggest, detective––?-- ––to the best of our ability.

––that you’ve spent five years pursuing charges against me. Is that correct?-- I haven’t spent five years. It’s been out of my hands since committal.

You haven’t had anything to do with - I believe there’s a statement that you have obtained statements from some 20 further people. Would that be correct?-- Certainly Mr Bennett would ask me to obtain things and I would’ve obtained them.

So that contradicts with your previous statement, doesn’t it? You just said you had nothing to do with the investigation but, really––?--No, I said I––

––you’ve been pursuing it for five years. That’s correct, isn’t it?-- I have been continuing to conduct inquiries on behalf of Mr Bennett, yes.

At least twenty or so other people that you’ve interviewed, obtained statements from, where are they?-- The people––

What evidence have you adduced against me from those witnesses?

MR COWEN: Your Honour, again I’m reluctant to interject at this stage, but this officer doesn’t conduct the prosecution. And it may well be that the answers to these questions will become inappropriate as regards Mr Mill.

HIS HONOUR: Yes, I’m inclined to the view that’s a proper objection, Mr Mill.

ACCUSED: I’ll restate my question. Has there been any further evidence from your continued activities that point to the dishonesty of myself?-- Yes.

And what’s that?

MR COWEN: Your Honour, it may well be that this could be proceeded with in the absence of the jury.

HIS HONOUR: Yes, all right. Ladies and gentlemen, would you mind retiring for a few minutes while we sort this out?

…

MR COWEN: My objection is for Mr Mill’s benefit. There were, as your Honour would appreciate, other inquiries conducted post the involvement of Mr Bennett. There was a forensic accountant report received on behalf of Mr Mill from a firm called Vincents. Prosecutions analysed that report, further statements were obtained and there was a variety of dishonest actions discovered in the analysis of that report. That evidence has not been adduced in the prosecution case in-chief because the defence report is not before the court, so the evidence would be relevant to rebuttal, potentially. And secondly it also reveals criminality which is not subject of these charges. An example would be obtaining the AGC loan by fraudulent means. I point this all out for the record, that if Mr Mill persists with this line of questioning, he might get an answer that is of substantial detriment to his case.

HIS HONOUR: Yes, you might be opening a can of worms.

ACCUSED: I take that on board from Mr Cowen and yourself. I guess my intention is just to show that I have been pursued a long period of time and - despite my own efforts to clear the air and just explain things.

HIS HONOUR: That point, it’s well made before the jury already. Of course, you can address on that to the extent––

ACCUSED: Yes.

HIS HONOUR: ––to emphasise to the jury that being the position, the original investigation, five years have now gone by and so on.

ACCUSED: Certainly.

HIS HONOUR: Do you have anything more of the witness?

ACCUSED: Just one moment.

HIS HONOUR: Yes, certainly, yes.

ACCUSED: Your Honour, I’m satisfied that I’ve covered all the necessary points in relation to the detective.

HIS HONOUR: All right.

ACCUSED: If I may, I’d appreciate a short time.

HIS HONOUR: A short break? The reason I asked that question was to discover whether this might be a convenient time to take a short break so I’ll do that…" (emphasis added)

Obviously the first Vincents' report was not in evidence at the time this exchange occurred. It was not put into evidence. The appellant now seeks to rely upon the further report by Mr McKinnon dated 15 March 2007. Mr McKinnon's further report seeks to negative the proposition that the first Vincents' report revealed dishonest actions by the appellant beyond those with which he was charged at his trial.

The appellant's evidence on appeal

The appellant, in his affidavit dated 13 April 2007, deposed that at his trial he intended to give evidence himself, and to call Mr McKinnon, to have the right of last address, but that, because of the remarks of the Crown Prosecutor set out above and the learned trial judge's response, he "did not press those matters".

On the appellant's behalf, it was said that (as it was put in the appellant's written submissions), because of the Crown Prosecutor's remarks, he "operated on the premise at least in whole or in part" that the first Vincents' report disclosed the commission by him of criminal offences, that it was inaccurate, that it ought not be used in evidence, and that the prosecution was providing legal advice to the appellant. These submissions of the appellant were not supported by the affidavit which was put before this Court. The appellant now swears that:

"at no time was I aware that the Vincents' Report disclosed other alleged offences by me, nor was I aware or informed of what the likely nature of those alleged offences may be. I continue to maintain that I have committed no offences."

The first point to be made here is that the appellant's submission mis-states the relevant observations of the Crown Prosecutor who did not say the first Vincents' report disclosed further offences but that further analysis by the DPP consequent upon the receipt of that report disclosed criminality with which the appellant had not been charged.

The next point to be made here is that the appellant did not say in his affidavit that he ever believed that the first Vincents' report disclosed other offences by him. In other words, the appellant has not directly sworn that he held the belief which he now seeks to argue informed the conduct of his case at trial. In argument on the hearing of the appeal, reliance was placed upon assertions recently made by the appellant in a letter to his solicitor which was exhibited to his solicitor's affidavit. I will discuss these assertions further in due course; but at this point it is sufficient to record the absence from the record of the trial, and from the appellant's affidavit, of any statement by the appellant that he conducted his case on the basis of a belief that the first Vincents' report disclosed offences by him.

The third point to be made here is that it is hardly likely that the appellant would have been unaware of whether or not the first Vincents' report disclosed offences by him. He was, after all, a qualified accountant. It must also be said that there is no suggestion in the record of the trial that the first Vincents' report was not available to the accused at trial. As will be seen, the appellant now disputes the position in this regard, but whether or not the first Vincents' report was physically in the appellant's possession at trial, Mr McKinnon was clearly available to the accused to advise him in relation to the Crown Prosecutor's observations should he have sought that advice.

There is no evidence of the extent to which the appellant consulted with Mr McKinnon at trial, but it seems to be clear that the appellant was not prevented from consulting with Mr McKinnon before deciding whether or not to call Mr McKinnon or to give evidence himself. In this regard, on 26 July 2006, the following exchange occurred between the learned trial judge and the appellant after the exchange set out above, and before the appellant decided not to give or call evidence:

"HIS HONOUR: Once - once the evidence is closed, it’s closed. You’ll be entitled to address the jury on the evidence including the material - the matters you’ve cross-examined on, the answers that you’ve obtained, and so on. You can address the jury on those and submit to them that they would treat that in particular way. That’s the purpose of an address you’ll appreciate. But you couldn’t say, for example – just to give a simply example – 'Well now, take this cheque – now what really happened with that was this: I sent it off to there', and so on and so forth, if that’s not already in the evidence you see.

ACCUSED: Okay.

HIS HONOUR: So - so just keep that in mind. I think I hadn’t explained––

ACCUSED: Sir, is it possible to have the use of a whiteboard in order of explaining items to the jury?

HIS HONOUR: Do you know if there’s - there’s a whiteboard that can be made available? Yes, we’ll make one of those available.

ACCUSED: I was just thinking it might be very helpful––

HIS HONOUR: All right. Yes.

ACCUSED: ––given the nature of the transaction.

HIS HONOUR: It could be set up somewhere. Well we’ll see what the size of it is tomorrow. Might be able to be set up behind you. I don’t know whether it attached to the wall, or––

BAILIFF: No. It’s a mobile one, your Honour.

HIS HONOUR: It’s a mobile one, so it’s some sort of a stand I guess. So we can - we can probably set it up in front of the dock there and you could come around there if you wanted to. You think for the purpose - for the purpose of addressing the jury?

ACCUSED: Yeah. I - I think so because of the complexity of the transactions––

HIS HONOUR: That’s all right, yes.

ACCUSED: ––and - and companies. I think it’s extremely important that they get a thorough understanding.

HIS HONOUR: That’s all right. We can have that put in place for - for the start time tomorrow morning. And do you wish to give or call any evidence?

ACCUSED: Sir, I - I - I still not can advise on that matter at this stage. One of my witness - potential witnesses is located in Brisbane**. I need to get in contact with him today and - and also I need to assess the implications of calling defence.**

HIS HONOUR: Yes.

ACCUSED: I believe one of those implications is that my summation is followed by the prosecutions.

HIS HONOUR: Yes, yes.

ACCUSED: Whereas otherwise I’m - I’m given the last opportunity of a summation.

HIS HONOUR: Yes, yes, that’s right, and the Crown doesn’t address––

ACCUSED: Yes.

HIS HONOUR: ––in - in those circumstances.

ACCUSED: And so that's a - that - that’s a difficult decision and I need to assess the latest evidence––

HIS HONOUR: All right. Yes, all right." (emphasis added)

The appellant's evidence in this Court, when he was cross-examined on his affidavit, established that the "witness … located in Brisbane" was Mr McKinnon.

Not only did the appellant have the opportunity to give mature consideration to his position and to seek the benefit of Mr McKinnon's advice, but it is apparent from the record of the trial that the appellant clearly understood that the decision he was to make was not a matter in respect of which he looked to the Crown Prosecutor or the judge for advice. It was not a matter of which he sought advice from the court or from his opponent. In this regard, on 27 July 2006, the appellant made a submission to the learned trial judge that he had no case to answer. After that submission had been made and the Crown Prosecutor had responded, the following exchange occurred:

"ACCUSED: I do wish to reply, your Honour.

HIS HONOUR: Yes.

ACCUSED: But before I do so, I must request additional time to prepare that response.

HIS HONOUR: Yes.

ACCUSED: The prosecution’s submission has been extremely lengthy and fast in pace. It has failed to ignore – still failed to ignore the major issues of evidence or onus of proof. He has also quoted, or indeed even misquoted, from a large number of documents which need further analysis by myself. He has also included a large number of assertions and allegations regarding the element of dishonesty that I was previously unaware of. Most importantly, he relies on the admission - or absence of material that could’ve been sought or provided by the prosecution during their case. I have to examine and prepare an ordered response to the prosecution’s allegations, but in addition I need to assess whether I have to call a defence in order to answer those allegations and introduce the omitted documents that I’m referring to.

HIS HONOUR: Yes.

ACCUSED: Obviously I’m at a disadvantage. Perhaps if I still had a QC here, he may be able to respond within a shorter period of time. But in my assessment I would need the rest of today to analyse those records and provide an adequate response. This is such a critical matter to be addressed.

HIS HONOUR: Yes. Let’s see, this is an application, of course, to be decided that there’s no case - it’s a no case submission at this stage - and I am obliged of course, to give you every opportunity to reply to what’s been put. The other thing, I suppose, is even apart from that, you’ve heard the Crown’s position put clearly and succinctly - in some detail, I should say.

ACCUSED: I would need a transcript.

HIS HONOUR: Yes. Are you being provided with one at the moment?

ACCUSED: Yes, I have, at the end of the day."

On 27 July 2006, the trial adjourned at 12.48 pm until the following day when the appellant replied to the submissions of the Crown Prosecutor in relation to the appellant's "no case" submission. The learned trial judge rejected that submission. At 11.28 am on Friday, 28 July 2006, the following exchanged occurred:

"The Crown’s case having now closed, it’s my duty to inform you of the options that are open to you as to the course of the balance of the trial. I have already adverted to these, but I need to make them clear in a formal way to you. First of all, you would be entitled to give evidence yourself without more; or as a further alternative you could give evidence yourself as well as calling other evidence; or you could without giving evidence yourself call other evidence. But you are not obliged to undertake any of those courses, so another option is that you could indicate that you don’t wish to give or call evidence. I will need you to indicate, if you’re ready to at this stage, what you propose to do.

ACCUSED: Sir, if I may, I would like to proceed with further submissions of the matter discussed.

HIS HONOUR: Before making a decision?

ACCUSED: Before making further––

HIS HONOUR: Well, perhaps that’s not unreasonable. I had hoped to get some indication, for the jury’s purposes and our own, but I can understand that you may want to consider these other matters and you have indicated you want to make some further submissions, so subject to what you have to say, Mr Cowen, I would be inclined to give the accused the opportunity of deliberating over the weekend.

MR COWEN: As your Honour pleases.

HIS HONOUR: I think that’s only fair. So I won’t require an answer at this stage, but you will need to give some consideration to that, do you follow, over the weekend?

ACCUSED: Certainly.

HIS HONOUR: I know you say you want to make some other submissions, but we need to - you need to plan ahead and decide whether––

ACCUSED: Yes.

HIS HONOUR: ––beyond those submissions and decide the alternatives that you need to consider.

ACCUSED: Certainly.

HIS HONOUR: All right. In other words, I’d be expecting a decision on Monday. I know you've got submissions to make, but then once that’s decided the trial is to continue, then we will need to get a decision as soon as possible. Well, all right, ladies and gentlemen, we’ll adjourn until Monday at 2.30, as I indicated to you before. Again, sorry to keep harping on this, but it’s important that you don’t discuss the case outside of your 12 jury members, only discuss it with [the] 12 of you together in private. All right, we will adjourn until Monday next at 2.30."

On the following Monday, 31 July 2006 at 2.32 pm, the following exchange occurred:

"HIS HONOUR: Yes. Thank you. Yes, well we’ve left the jury out just to see what position you’re in Mr Mill. Do you––

ACCUSED: Yes.

HIS HONOUR: Do you either wish to make further submissions or be called upon in relation to the evidence or not?

ACCUSED: Your Honour, I personally wish to advise my position in relation to the no case submission.

HIS HONOUR: Yes, yes, righto.

ACCUSED: I’ve taken the opportunity to contact two separate legal representatives but both are in Court this week and while they indicate they may be available, were unable to provide any further advice whatsoever.

I’ve sought to examine the case all myself, but without legal knowledge, for example, to analyse the relevance or the reasoning behind the decisions of the cases mentioned, I am unable, at this time, to recommence that no case submission. However, I am extremely desirous of ending the matter as soon as possible and I have a number of submissions that must be dealt with firstly in any case and I believe these will assist with the speedy resolve of the matter before the Court.

There's in fact five submissions and they will involve your ruling, so I might just as a courtesy, suggest that the jury may not need to remain for the day."

The appellant then made some further submissions about the conduct of the trial which are not of any present relevance save that it may be noted that the appellant sought a ruling that the transcript of his record of interview with the police be ruled inadmissible, and to renew his no-case submission. These submissions were rejected. Thereafter, the following exchange occurred:

"ACCUSED: Sir, can I just clarify?

HIS HONOUR: Perhaps just - yes.

ACCUSED: Just with your ruling there, was that ruling actually denying any further adjournment––

HIS HONOUR: Yes.

ACCUSED: ––that was required to consult legal counsel?

HIS HONOUR: Yes.

ACCUSED: So there’s no further opportunity for me to––

HIS HONOUR: No. Yes, bring the jury back.

…

HIS HONOUR: Yes, thank you, Mr Bailiff. Yes, stand up, Mr Mill, thank you. I reiterate what I said last Friday: The Crown’s case having now closed, it’s my duty to inform you of the options that are open to you as to the course of the balance of the trial. First of all, you would be entitled to give evidence yourself without more. A further alternative is that you could give evidence yourself, as well as calling other evidence. You could, without giving evidence yourself, call other evidence but you’re not obliged to undertake any of those courses, so another option is that you could indicate that you don’t wish to give or call evidence. I need you to indicate now what you propose to do.

ACCUSED: Sir, I previously indicated that I am awaiting––

HIS HONOUR: No, no, I’m asking you to indicate which of the options you propose to adopt. I’ll go through them again. One is you can give evidence yourself without more. Two is you can give evidence yourself, as well as calling other evidence. Three is, without giving evidence yourself, you may call other evidence. Four is you need adopt none of those courses and simply indicate that you do not wish to give or call evidence. I want you to respond to that query.

ACCUSED: Sir, under the circumstances I will not call evidence.

HIS HONOUR: Yes.

ACCUSED: And in so doing, my understanding is that I have last summation to the jury.

HIS HONOUR: Yes, that’s so. So, you’ve decided neither to give nor call evidence; neither give evidence yourself nor call any evidence?

ACCUSED: That’s correct. And in so doing, in the interests of this Court and a speedy resolution––

HIS HONOUR: That’s all right, that’s your choice."

It is apparent from these excerpts from the record of the trial that the appellant was extended every opportunity to consider his position, and that he availed himself of that opportunity. When the appellant said that "I previously indicated that I am awaiting …", he was clearly referring to legal advice in relation to the furtherance of his no-case submission, a submission on which the learned primary judge had ruled. The decision the appellant made thereafter not to call or give evidence was, as is apparent from the record, his own choice. It is also apparent from the record that the prospect of having the sole address to the jury was the consideration which was decisive in the appellant's choice.

This appeal came on for hearing on 20 April 2007. The solicitor engaged by the appellant on the appeal filed an affidavit sworn 19 April 2007 which exhibited a handwritten letter said to have been sent by the appellant to his solicitor on 17 April 2007. That letter was entitled "Further Appeal Issues". The material assertions in this letter may now be dealt with in turn.

The first assertion was that the appellant did not have access to "a final copy" of the first Vincents' report at trial. This assertion is without substance. The appellant at no time raised with the learned trial judge that he was experiencing any difficulty in conducting the trial because he did not have a copy of the report. In cross-examination of the appellant, it emerged that, to the extent that it was the case that, as he asserted, his former lawyers had not left him a copy of that document, he did not seek to obtain a copy of the document from his former lawyers, or from Mr McKinnon. It also emerged that he had seen the report in draft and had sent a corrected copy of the draft to Mr McKinnon before Mr McKinnon "signed off" on the report;

The next relevant assertion in the appellant's letter was that, "I now know that the Vincents Report contained significant and original documentation, including computerised accounting records, invoices, and handwritten timesheets of my accounting firm". On this basis, the appellant asserts that the Crown Prosecutor actively misled the judge by responding to the appellant's no-case submission with the contention that there were no documents which "could substantiate my claims for fees etc owed". But not only is it clear that the Crown Prosecutor was speaking of the evidence as it stood at the close of the Crown case, it is also clear that the documents annexed to Mr McKinnon's report were well-known to the appellant because he had supplied these documents to Mr McKinnon in the first place. The accuracy of those documents was, as he must have understood, not accepted by the Crown. The appellant had every opportunity to attempt to establish the authenticity and accuracy of these documents;

The appellant's next assertion was that, "Most importantly, I was unable to refer to the Vincents files for validation, and was therefore left to conclude that the Prosecutors contentions re absent documentation were correct, or at the very least the Vincents evidence was insufficient as defence rebuttal or proof." It is clear that this assertion involves a large degree of exaggeration in terms of the extent of the appellant's real "disability", but, in any event, to the extent that the appellant reached the conclusion he alleges, it is clear that it was made in the light of the appellant having every opportunity to consider the value of the first Vincents' report to his case;

The appellant went on to assert that, "In this sense, the no-case response elevated my concerns regarding calling Vincents. That is not only could it expose further illegality, according to [the Crown Prosecutor], but at any rate would be unsuccessful in proving innocence because it lacked the records, according to [the Crown Prosecutor] who had the only copy". This assertion is the closest the appellant comes to an assertion that the appellant actually believed that the first Vincents' report itself revealed further criminal acts by him. This assertion is distinctly less than compelling. Not surprisingly, the appellant refrained from a frank statement that he truly believed that the first Vincents' report itself revealed any acts of criminality on his part. The assertion now sought to be made is quite inconsistent with the record of the trial, which does not suggest that the submissions of the Crown Prosecutor had anything to do with the appellant's decision not to call Mr McKinnon. It has nothing to do with his failure to give evidence himself; and

Finally, the appellant asserted that the Crown Prosecutor "was forewarned about" the no-case submission. The appellant seems to be asserting some dishonest collusion between the Crown Prosecutor and the appellant's former lawyers. Such an assertion was not taken up as the subject of a submission by the appellant's legal representatives on the appeal. There is no basis in the evidence for this assertion.

Mr McKinnon's evidence

It is necessary now to say something about Mr McKinnon's evidence. The first Vincents' report was dated 19 September 2005. In that report, Mr McKinnon recorded that he was instructed to "provide an opinion on the accounting evidence grounding Indictment (1) and Indictment (3)". In relation to count 1, which had at that stage been particularised as involving the misapplication of $188,000 by the appellant from Suga Pty Ltd, Mr McKinnon expressed the "comment":

"1.1Suga P/L consented to the payment of $188,000 to Mill and or in the alternative;

1.2the Crown has failed to consider that during the Analysis Period Mill either repaid amounts, and or incurred costs, or supplied professional services to Suga P/L in the amount of $231,326. The alleged dishonestly misappropriated amount of $188,000 was a repayment by Suga P/L to Mill for these incurred costs and or supplied professional services. At the start of the Analysis Period, Mill was owed $10,000 by Suga P/L. At the end of the Analysis Period, Mill was owed $53,326 by Suga P/L."

In relation to count 3, Mr McKinnon opined that the income of Mrs Seiko Suga was accurately stated in her income tax return for the year ended 30 June 2000, but overstated in her income tax return for the year ended 30 June 1999.

In the first Vincents' report, Mr McKinnon noted that he had "not been instructed to verify the information furnished to" him including information provided by the appellant. When Mr McKinnon was cross-examined in this Court, it emerged that the differences of opinion between him and Mr Bennett were based principally upon Mr McKinnon's use of the MYOB system set up by the appellant to record the dealings of Suga Pty Ltd and Mr McKinnon's willingness to act upon information provided to him by the appellant in relation to the transactions in question. It was made clear in Mr McKinnon's evidence in cross-examination that, only if the evidence of the appellant was accepted as to the occurrence and authenticity of various dealings, for which contemporaneous records were lacking, could Mr McKinnon's evidence throw doubt on the proposition that the appellant had applied moneys obtained from Suga Pty Ltd and Mrs Suga in an amount in excess of $5,000 as charged against the appellant in count 1 of the indictment.

It is, therefore, clear that the first Vincents' report would have been quite useless to the appellant unless the appellant gave acceptable evidence of primary facts to support the opinions expressed by Mr McKinnon. Further, there is, I think, real doubt as to whether the first Vincents' report would have been admissible in evidence at all insofar as it purported to express an opinion as to the reliability of the appellant's assertions as to the true state of accounts as between the appellant and Suga Pty Ltd and Mrs Suga. In contrast to the evidence of Mr Bennett, which was apt to establish the effect of accounting records he was shown and the absence of other accounting records which might support the appellant's claims, Mr McKinnon seemed to be giving evidence that assertions made by the appellant to him, for example, in relation to the level of fees charged to Suga Pty Ltd, were true, or at least credible. That kind of opinion is, I think, beyond the scope of Mr McKinnon's expertise. It was not a legitimate subject of comment by him.

Mr McKinnon, in his report of 15 March 2007, sought to do a number of things. First, Mr McKinnon offered a comment upon the Crown Prosecutor's reference at trial to the first Vincents' report. Mr McKinnon says that the first Vincents' report does not "detail further 'dishonest actions' or 'criminality' by [the appellant]". Mr McKinnon may well be correct in his summary of the effect of the first Vincents' report. The short point for present purposes, however, is that the Crown Prosecutor at trial did not make the statement which Mr McKinnon's comment would attribute to him. Mr McKinnon set up a "straw man" and then proceeded to demolish it.

Secondly, Mr McKinnon commented that "the Crown's Expert Accountant relies (in a number of instances) on the [first] Vincents Report and therefore in my view the Crown and not [the appellant] was obliged to table the Vincents Report at trial". This comment is, of course, upon a matter entirely outside the proper scope of Mr McKinnon's legitimate function as an expert. That he would take it upon himself to state authoritatively what is clearly a matter of law for determination by the Court is something which does him little credit. As is well-known, the role of an expert witness is to give independent assistance to the court by the provision of impartial opinion within the area of his or her expertise.¹ In Whitehouse v Jordan,² Lord Wilberforce said:

"While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating."

It is evident, both from the content of Mr McKinnon's reports, and his evidence in cross-examination, that Mr McKinnon exceeded his area of expertise to pursue a partisan role as an advocate for the appellant's cause.

In any event, Mr McKinnon's comment proceeds upon an erroneous understanding of the nature of the Crown's "reliance upon" the first Vincents' report. To the extent that the first Vincents' report led those investigating the appellant to improve the Crown's case against the appellant, that is not the kind of reliance which obliges the Crown to tender the report.

The same observations may be made in relation to Mr McKinnon's suggestion that:

"in a significant number of instances the Crown's financial evidence and/or the Crown's interpretation of the financial evidence is, and should have been at trial, subject to contrasting opinion by an accounting expert called by Mr Mill. Opinion financial evidence (and whether or not it is accepted) is ultimately a question to be placed before the tribunal of fact. I am aware that at trial Mill was deterred by the Crown's Address [sic] from placing before the tribunal of fact expert accounting evidence."

In offering these comments, Mr McKinnon has once again passed beyond the boundary which separates the expert witness from the partisan advocate. Insofar as Mr McKinnon's report of 15 March 2007 went on to dispute the evidence given by Mr Bennett at trial, it emerged clearly from Mr McKinnon's evidence that, at the best for the appellant, the differences of opinion between Mr McKinnon and Mr Bennett could be resolved only by evidence from the appellant himself which might support the inference drawn in the appellant's favour by Mr McKinnon.

In summary, Mr McKinnon's report of 15 March 2007 is an edifice built on the false foundation of the baseless assumption that the appellant was deterred from using the first Vincents' report by the remarks of the Crown Prosecutor. It is also tainted by the erroneous legal opinion that the Crown was obliged to call Mr McKinnon as a witness for the Crown to prove the first Vincents' report.

The relevance of the evidence of the appellant and Mr McKinnon on the appeal

Mr Copley of Counsel, who appeared for the respondent, submitted that this Court may only admit, and act upon, the evidence of Mr McKinnon, which challenges the evidence of Mr Bennett, if the evidence of Mr McKinnon is apt to establish the innocence of the appellant or to show that the jury, if it had been aware of that evidence, would not have been satisfied of the appellant's guilt beyond reasonable doubt.³

The submission of Mr Clutterbuck of Counsel, who appeared for the appellant, was that Mr McKinnon's evidence had a dual relevance on the appeal: first, it tended to assist the appellant's claim that he had been led not to call or give evidence by an erroneous assertion by the Crown Prosecutor about the content of the first Vincents' report; and, secondly, it tended to demonstrate that opportunity to give and call evidence which was lost to the appellant was an opportunity of some significance in terms of the outcome of the trial. Mr Clutterbuck relied upon the statement of Fitzgerald P in R v Stafford*; ex parte A-G (Qld)*⁴ in favour of the reception of new evidence on appeal where that is necessary to prevent a miscarriage of justice. Fitzgerald P said:

"A conclusion of miscarriage of justice is not necessarily foreclosed by an appeal court’s opinion that a convicted person is guilty. The question whether there has been a substantial miscarriage of justice is to be answered by determining whether an appellant lost a chance of acquittal which was fairly open to him."

It is convenient for present purposes to accept this statement of the law as accurate. For the reasons set out above, I consider that the evidence of the appellant and Mr McKinnon adduced on appeal did not demonstrate that the appellant lost a fair chance of an acquittal. For the reasons set out above, I did not find the evidence of the appellant and Mr McKinnon so compelling that it should alter the understanding of the course of the trial which is to be gained objectively from the transcript of the proceedings at trial. As the record of the trial shows, the appellant "lost" nothing in the way of the fair prospect of an acquittal. To the extent that he decided not to call or give evidence, that was not an opportunity denied him by any ruling by the trial judge or misconduct by the Crown Prosecutor, but a choice made by him for an apparently good reason. The record of the trial is inconsistent with a conclusion that the appellant's choice was affected by a false appreciation of the effect of the first Vincents' report induced in him by the Crown Prosecutor; and to the extent that the appellant did not give evidence and call Mr McKinnon to prove the first Vincents' report, it cannot be said that this evidence would have been more apt to achieve an acquittal than the advantage to the appellant of the sole address to the jury.

While it is "the duty of a trial judge to take special pains to ensure that an accused person who is not legally represented receives a fair trial",⁵ an unrepresented accused person is not denied a fair trial because he or she conducts his or her case on the basis of errors of judgment which arise because of the accused person's imperfect appreciation of his or her situation. Nor does a miscarriage of justice occur because an accused person chooses to pursue a flawed strategy at trial. The subjective judgments of an accused person cannot afford a reliable gauge as to whether a trial has been conducted fairly to the accused or has resulted in a fair outcome. Some accused persons may be quite unreasonable; some may not be honest. Apart from the special safeguards involved in the accusatory character of a criminal trial, an unrepresented accused, like any other party to litigation, is entitled to a sufficient opportunity "for everything to be said that could be said in his (or her) favour".⁶ An unrepresented party's entitlement to a fair hearing must be measured by reference to what is necessary to enable that party to have a reasonable opportunity to present his or her case in its best light. An accused is not denied a fair trial simply because he or she is left with a subjective sense of grievance that his or her conduct of the trial was not crowned with success.

The appellant was not denied the opportunity to tender the report of Mr McKinnon and to call him to give evidence. Nor was he denied the opportunity of giving evidence himself. He simply made a choice not to call or give evidence. I do not accept that his choice was induced by anything said by the Crown Prosecutor. As is apparent from the record of the trial, the appellant made the decision he made for another reason altogether – that is, to obtain the benefit of the sole address to the jury.

The question whether the appellant lost a chance of acquittal which was fairly open to him also invites attention to the forensic detriment the appellant is said to have suffered. It is impossible to say that the opportunity of giving evidence and of calling Mr McKinnon to give evidence was a greater forensic advantage than the opportunity to have the only address to the jury.

It may be said with some force that the appellant did not make the most of his opportunity to give the sole address to the jury. The arguments which he put before the jury concluded with the following peroration:

"Lastly, I turn to the interview that you viewed with the detective in the previous days. I - I just want to quickly redirect that I was unaware of any allegations or complaint against me from the start. I was only informed of these as the interview unfolded. My lack of recollection is – is evident throughout and I - I - I stated that I need to consult records and it is, indeed, the effort in - in the - in the evidence submitted to the Court that from Lao Suga, on instruction, the detective access to my belongings and records was to be withheld.

Just quickly, I had a medical disorder at the time of the interview, suffering from depression and anxiety, medication is essentially to promote forgetfulness and has a side effect with alertness and basically with events sort of caused me extreme grief.

Also in relation to that I think it’s also clear that the interview involved a significant element of deception. I don’t want to harp on about this, but, you know, it’s clear as black and white you can - you can put the video in slow motion and see how many pages I turn and compare it to the actual bank statements, you know, it - it’s just something that shocked me, really, because I had such trust in the police until that time. I - I never realised that, you know, someone could be duped to that extent and - and - and - and that – it - the - the fact that I didn’t realise these weren’t all the bank statements, well, that’s probably got something to do with my medication and my level of - of alertness at the time.

So, in answering those questions in the transcript, I - I just would suggest the - the jury take those matters into consideration, particularly, you know, the four hours and recalling incidents six years old.

The Prosecutor has stated in his opening address, the criminality in count 1 and 2 is the element of dishonesty and he says that dishonestly is to be assessed by the standards of ordinary, honest people. He goes on to say you then have to consider whether the accused must have realised that what he was doing was dishonest. In relation to count 3, the test is that (a) did he have an intent to defraud, and (b) were they false in the material particular, namely, the overstated income. And, finally, and when the prosecution brings its case, it must prove the case beyond all reasonable doubt.

My submission is that no dishonesty can realistically or objectively be applied to any of my actions. And it is the onus of proof for the prosecution to exclude beyond reasonable doubt that this has actually occurred. There is evidence that records were tampered with or - or even omitted. Yes, I am a bankrupt, but it’s not a crime. It results in loss of all property and records. I’ve lost my family, my house, my car, my business. Excuse me for a second I - look, I don’t expect sympathy, but I might suggest that bankruptcy is – is not such an uncommon thing and it can happen to the best of people and - and you probably know quite a few and it’s often the case that it - it’s not a result of their own misdemeanour, it might be that a large corporate or - or - such as HIH or a large customer has defaulted and that’s often happening to Cairns and - and it’s like a stack of cards going over. I - I’ve seen it before in - in past years in Cairns and it’s horrific.

But I’m - I am able to hold my head high because I did make that effort to pay all clients and small business any debts and, yes, large corporates that are funded or - or provided services did - did suffer and I took the fall for that and I lost my career as well as CPA and tax agent.

Getting back to the actual case at hand, it’s a matter of dishonesty that - and I - I just do not believe that anything I’ve done in this Court - any evidence - except for maybe a - the mistake of - of - you know, us as a family using each other’s signature is - is - is - forms an element of dishonesty.

And I’m - I’m sad - extremely sad that my ex-de facto and my ex-mother-in-law chose a certain path, and it was devastating, but you know, I’ve had to fight for five years now to defend that, and I will keep fighting because at heart they were my family, and Osami I - I love so much.

I think also there is becoming an attitude in - in the bureaucracy that they were to pursue people with impunity, and evoke so many rules that run our lives. I - I feel that it’s - it’s - your verdict, ladies and gentlemen, will never be a victory for me because mud sticks and it’s cost me and my family so much.

But your verdict, ladies and gentlemen, will be a victory for the people of Cairns, to maintain our indivually - individuality - our - our own specific character and to resist the - the activities that perhaps a - perhaps an errant police and prosecution. Thanks for your time. Sorry to be slow. It’s been a long night. Thank you, your Honour."

Whether or not the jury were familiar with Dr Johnson's remark that "Patriotism is the last refuge of the scoundrel", it is difficult to suppress the suspicion that the jury to whom the appellant directed his concluding remarks may have decided that they had been listening to a scoundrel taking refuge in parochialism. The appellant's plea to the jury in the name of some supposed Far North Queensland exceptionalism may well have produced the same reaction as it would have produced in any jury sitting in any town or city. The appellant might have produced the same reaction in the jury if he had given evidence. But the question is not whether the appellant made the best use of the right of sole address. The question to which the appellant's submission invites attention is whether the forensic advantage of the sole address outweighed the advantage of the appellant's calling of Mr McKinnon or giving evidence himself. Whether the appellant would have been better off to give evidence and to call Mr McKinnon is entirely speculative. It cannot be said that the appellant's choice of a course which allowed him the sole right of address was itself disadvantageous.

The obligation to tender the first Vincents' report

Mr Clutterbuck also argued that the trial proceeded unfairly to the appellant because the Crown had not called Mr McKinnon and tendered the first Vincents' report. Reliance was placed on the observations of Gaudron A-CJ, Gummow, Kirby and Hayne JJ in RPS v The Queen⁷ that the responsibility of the Crown Prosecutor to ensure that the Crown case is presented with fairness to the accused means that "in many cases [the Crown] would be expected to call the witness in question as part of the case for the prosecution". But this passage recognises that there are witnesses who are not expected to be called by the prosecution. In The Queen v Apostilides,⁸ it was held that:

"[a] decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice … So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory."

In the present case, the evidence of Mr McKinnon in the first Vincents' report was not an essential step in the unfolding of the Crown case. Mr McKinnon's evidence was, even on the best view of it for the appellant, dependent upon evidence from the appellant to provide an admissible basis for Mr McKinnon's conclusions. The report would not be probative of anything without evidence from the appellant; and, of course, whether or not he gave evidence was a matter for him. Further, it was an essential aspect of the Crown case that such support as the first Vincents' report gave to the appellant's case was spurious because it was based on the false premise of the reliability of the appellant's explanations of his dealings with the moneys obtained from Mrs Suga and Suga Pty Ltd. There could be no expectation that the Crown would have called Mr McKinnon and tendered the first Vincents' report, the evidentiary value of which, and, indeed, its admissibility, depended upon evidence from the appellant.

It may be noted here that Richardson v The Queen,⁹ a decision of the High Court on which the appellant sought to rely, was a case in which it was held that a failure by the Crown to call an eye witness to an alleged offence did not give rise to a miscarriage of justice. The witness was an associate of the accused. The High Court said: "No dictate of fairness to the accused could properly require that she be called as a Crown witness, free from cross-examination by the Crown. Proper presentation of the Crown case required that she be called, if at all, by the defence."¹⁰ In relation to Mr McKinnon, there were, in my view, real doubts as to the admissibility of Mr McKinnon's evidence even if the appellant were to have given evidence to provide a basis for the conclusions expressed in the first Vincents' report; and, in any event, there was no reason at all why Mr McKinnon's evidence should have been allowed to be given free from cross-examination when its accuracy was disputed by the Crown.

In summary, in relation to the arguments advanced under the rubric of grounds 4, 5 and 6 of the notice of appeal, the appellant's argument stands at a point well beyond that at which "the essential accusatory character of the criminal trial in this country"¹¹ is apt to modify the adversarial character of proceedings in favour of an accused person. The appellant has failed to show that he conducted the trial on the basis that he was led to believe, and, in fact, believed, that he had no choice but to refrain from giving and calling evidence. The appellant made his own choice in this regard unconstrained by the conduct of the Crown Prosecutor or the learned trial judge.

I turn now to consider the appellant's other grounds of appeal.

Ground 1

Ground 1 of the notice of appeal was in the following terms:

"The learned trial judge:

(a)Permitted an indictment to be presented charging a count that was bad as a matter of law for duplicity;

(b)By permitting the presentation of the indictment as set out in ground l(a) above caused the charging of several offences in the one count and rendered it impossible for the jury to properly and lawfully adjudicate upon the evidence to determine what offence of several allegations was committed by the appellant, if any;

(c)By permitting the presentation of the indictment as set out in ground l(a) above caused the charging of several offences in the one count and rendered it impossible or [sic] the trial judge for [sic] the court to identify the offence upon which the jury had convicted."

The argument by which the appellant sought to support this ground of appeal was directed to count 1. It may be noted that no objection was taken to the terms of the indictment at trial. Now it is argued on the appellant's behalf that count 1 is duplicitous in that two (or more) offences are charged in one count on the indictment. The appellant argues that count 1 was bad for duplicity in that it alleged defalcations involving both Mrs Suga and Suga Pty Ltd.

When the trial commenced, the appellant was represented by Senior Counsel and this point was not argued. That is because even a passing familiarity with the Criminal Code would have revealed that there was nothing in the point.

In general, as s 567(3) of the Criminal Code provides: "Where more than 1 offence is charged in the same indictment, each offence charged shall be set out in the indictment in a separate paragraph called a 'count' …" In cases of fraud, however, s 568(3) of the Criminal Code provides:

"(3)In an indictment against a person for fraud the person may be charged and proceeded against on 1 charge even though –

(a)any number of specific frauds of the same type has been committed, whether or not each specific act of fraud can be identified; or

(b)the frauds have extended over any space of time; or

(c)property applied belongs to different persons, and has come into the possession or control of the accused person at different times and subject to different trusts, directions, conditions, or duties to account; or

(d)the property, benefit, detriment or inducement belongs to or is caused to different persons."

The appellant's argument in relation to ground 1 cannot be maintained in the light of s 568(3)(c) of the Criminal Code.

Ground 2

Ground 2 of the notice of appeal was in the following terms:

"Alternatively, the learned trial judge failed to require of the jury a special verdict(s) such as to wholly or in part identify relevant evidence upon which the jury convicted."

The learned trial judge ruled that the jury's verdict in relation to the circumstances of aggravation alleged against the appellant would enable him properly to sentence the appellant in the event of a conviction on counts 1 or 2.

There was no obligation upon the learned trial judge to request a special verdict from the jury. No miscarriage of justice could be said to flow from the trial judge's decision in this regard. No basis was shown to uphold ground 2 of the notice of appeal.

Ground 3

Ground 3 of the notice of appeal was in the following terms:

"The learned trial judge in summing up to the jury:

(a) Failed to do so in a fair and impartial manner;

(b) Erred in instructing the jury on the onus of proof;

(c) Referred to the commission by the appellant of uncharged offences in circumstances:

(i) Where no such offence was charged;

(ii) To the severe prejudice of the accused;

(iii) That caused the jury to speculate or created an environment to enable a jury to so do.

(iv) That had the effect of causing the accused to be wrongly convicted."

The principal argument advanced on the appellant's behalf under this heading concerned the absence of a direction by the learned trial judge that the jury should consider whether a defence was available to the appellant under s 22(2) of the Criminal Code. This argument went only to count 1.

The learned trial judge relevantly directed the jury in the following terms:

"Well, now, the thrust of the defence case, at least in part, appears to be that Mill, being the driving force behind the setting up of the restaurants dealt with in the evidence or at least the expansion into Earlville Stockland, was entitled to and did, in effect, pay himself back out of Suga Pty Ltd for that effort or if he hadn’t got around to paying himself out that he was entitled so to do and that a lot of what’s described as defalcations could be explained that way.

Now as to the balance of funds that the Crown alleges are the subject of fraudulent dealing it might be the case that they constituted regular loans to him or his company or Mill entities or partners and so on which were taken on a loan arrangement with the knowledge and acquiescence, in effect, of the Sugas.

Well, now, you’ll remember the test of dishonesty that I directed you about. There were the two things, dishonest according to the standards of the community and further dishonest, according to those standards, to the knowledge of the accused. So the defence case which you need to consider would be even if he wasn’t so entitled strictly speaking that is what he believed and so he would contend the Crown could not prove that second requirement that I spoke of earlier, that he knew what he was doing was dishonest by community standards. So that’s what you need to consider and decide what you make of that. If you are left with uncertainty about whether that was the position then that would seem to constitute a reasonable doubt about the element of dishonesty but it’s a matter, of course, for you to assess and apply the necessary standards.

In other words if money is taken by somebody with knowledge of the owner, be that owner a natural person or a company which is a legal entity, on the basis to the knowledge of the owner of the property it was an agreed loan or an agreed knowledge about payment for effort then one could hardly conclude that that would be dishonest according to the objective standard. That’s the standard of the ordinary, honest people let alone that an accused in that situation knew it was dishonest according to that standard, that’s the subjective test, and you would have to acquit if you are in that situation, you understand. Now it is only if you, the jury, are satisfied to the contrary of that position that I’ve just described and gone through, and satisfied of dishonesty according to the tests that I’ve directed you about that you could convict.

Well, now, that as I understand it is the gist of the defence case."

Section 22 of the Criminal Code provides relevantly:

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

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

…"

The case advanced by the appellant in relation to count 1 was that he was entitled to appropriate to his own use the moneys which he obtained from Suga Pty Ltd and Mrs Suga. The appellant argues that he was entitled to have the jury instructed to consider whether excuse from criminal responsibility afforded by s 22 of the Criminal Code had not been excluded by the Crown beyond reasonable doubt.

On the appellant's behalf, it was argued that the learned trial judge's direction was not sufficient instruction in relation to the exculpatory effect of s 22(2) of the Criminal Code. Reference may be made to the remarks of Gaudron A-CJ, Gummow, Kirby and Hayne JJ in RPS v The Queen:¹²

"… The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case … No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues … It will require the judge to put fairly before the jury the case which the accused makes…"

It is apparent that the learned trial judge did not expressly advert to s 22(2) of the Criminal Code in his address to the jury. A suggestion as to an appropriate direction in relation to s 22(2) of the Criminal Code is made in the Queensland Supreme and District Courts Benchbook. While this direction is only a suggested guide for trial judges, it is important to note that its focus is upon the belief of the accused person to do that with which he or she is charged. It is in the following terms:

"Under our law, a person is not criminally responsible, for an offence relating to property, if what he did [or omitted to do] with respect to the property was done [omitted to be done] in the exercise of an honest claim of right and without intention to defraud. [Offence charged] is an offence relating to property.

[An honest claim of right may stem from a belief in a right the law does not recognize (Williams [1988] 1 Qd R 289).]

'To defraud' in this context means to do [or omit to do] something dishonestly, so the requirement that the claim of right be honest and the requirement of the absence of an intention to defraud are really two ways of saying that the defendant must have honestly believed himself to be entitled to do what he did [or omitted to do].

There is no burden on the defendant to prove that he made an honest claim of right without intention to defraud. The prosecution must satisfy you beyond reasonable doubt that he did not do so. So if the prosecution has failed to satisfy you beyond reasonable doubt that when [the defendant] [details of act or omission, e.g., took the suitcase owned by 'X'] he [did not honestly believe he was entitled to [act or omission, e.g., take it], you must find the defendant not guilty."

Mr Copley, quite rightly in my view, did not seek to dispute that an arguable case of exculpation by virtue of s 22(2) of the Criminal Code had been raised at trial by the appellant even though the appellant had not himself adverted to this provision in his address to the jury. Rather, Mr Copley argued that the direction set out above at paragraph [77] was a sufficient direction in relation to the exculpatory effect of s 22(2) of the Criminal Code.

It was essential, as a fundamental aspect of the appellant's right to a fair trial according to law, that the jury be instructed that the appellant should be acquitted unless they were satisfied beyond reasonable doubt that the appellant did not honestly believe that he was entitled to apply the moneys in question by way of payment of fees due to him or by way of reimbursement of expenses incurred by him for Suga Pty Ltd.¹³

The learned trial judge's directions to the jury explained the notion of "fraudulent application" in terms of "dishonesty", and his Honour explained that concept in terms of activity which is dishonest by the standards of ordinary people. In R v Lawrence,¹⁴ Callaway JA, with whom Southwell AJA and Smith AJA agreed, said that "[n]o one would choose that language to explain to a jury the elementary proposition that a person cannot fraudulently misappropriate property that he believes to be his own …". Callaway JA went on to explain that:

"[i]f an accused person asserts a belief that is clearly inconsistent with dishonesty, it can only confuse the jury and put the accused in uncalled-for peril to instruct it to judge that belief by reference to the ordinary standards of reasonable and honest people and whether the accused must have realised that what he was doing was dishonest by those standards … It would be absurd for a judge to instruct a jury to consider whether, in accordance with the ordinary standards of reasonable and honest people, a person may appropriate his own property or take money owing to him in a manner authorised by his debtor …"¹⁵

These observations are applicable here. Even though Callaway JA was not speaking about the provisions of the Criminal Code, his remarks encapsulate the inadequacy of the learned trial judge's direction to the jury in this case. The appellant's right to a fair trial according to law included the fundamental entitlement to have the jury instructed that if he honestly believed that he was entitled to apply the moneys the subject of count 1 to his own use, then, however unreasonable that belief may have been, he should be found not guilty of the charge in count 1 on the indictment. The jury were not directed in these terms.

In my respectful opinion, the instruction in the law given to the jury by the learned primary judge did not clearly raise for the jury's consideration the proposition that the appellant was entitled to be found not guilty of the offence charged in count 1 on the indictment if the prosecution failed to establish that the appellant did not honestly believe that he was entitled to apply the moneys of Mrs Suga and Suga Pty Ltd to his own use. Accordingly, I consider that the conviction in respect of count 1 must be set aside.

It was also argued on the appellant's behalf that the learned trial judge reversed the onus of proof of dishonesty. The appellant's argument is misconceived. The observations of which the appellant complains related to the absence of full records of the transactions in question. The appellant prepared the records in question and was responsible for the documentation of the transactions. To make the observation that these records were incomplete was to make an obvious and accurate comment on the facts: it was not apt to reverse the onus of proof of an essential element of the offences with which the appellant was charged.

The appellant also complained in his written submissions about a miscellany of comments by the learned trial judge which were said in some way to have been unfairly adverse to the appellant. This complaint was without substance. In putting the case for the prosecution and the case for the defence fairly before the jury, it was inevitable that the learned trial judge would be obliged to mention matters adverse to the appellant. A fair reading of the learned trial judge's directions to the jury shows that his Honour was scrupulous to put the case made by each side in terms which were fair to each side.

Ground 7

Ground 7 of the notice of appeal was in the following terms: "The learned judge erred in determining that there was a case to answer on each of the counts …"

There is no substance in this ground of appeal. The evidence of Mrs Suga and Reo Jenna was evidence from which the jury were entitled to infer that the appellant acted dishonestly in disposing of the moneys he obtained from Mrs Suga and Suga Pty Ltd.

Conclusion and order

The appeal should be allowed in part. In relation to count 1, the conviction should be set aside and a new trial ordered. Otherwise, the appeal should be dismissed.

LYONS J: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the reasons and the orders proposed by Keane JA.

Footnotes

¹ Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd's Rep 379 at 386; National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68 at 81.

² [1981] 1 All ER 267 at 276.

³ Lawless v The Queen (1979) 142 CLR 659 at 675 – 676; R v Katsidis; ex parte A-G (Qld) [2005] QCA 229 at [18] – [19].

⁴ [1997] QCA 333 at [27].

⁵ Love v The Queen (1983) 49 ALR 382.

⁶ South Australia v O'Shea (1987) 163 CLR 378 at 389, 405; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 660 – 661.

⁷ (2000) 199 CLR 620 at 633.

⁸ (1984) 154 CLR 563 at 575 - 578.

⁹ (1974) 131 CLR 116.

¹⁰ (1974) 131 CLR 116 at 122.

¹¹ MWJ v The Queen (2005) 80 ALJR 329 at 340 [41].

¹² (2000) 199 CLR 620 at 637 [41].

¹³ Van Den Hoek v The Queen (1986) 161 CLR 158 at 161 – 162.

¹⁴ (1996) 138 ALR 487 at 496.

¹⁵ (1996) 138 ALR 487 at 498 – 499.

Footnotes

1. Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd's Rep 379 at 386; National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68 at 81. ↩ ↩²

2. [1981] 1 All ER 267 at 276. ↩ ↩²

3. Lawless v The Queen (1979) 142 CLR 659 at 675 – 676; R v Katsidis; ex parte A-G (Qld) [2005] QCA 229 at [18] – [19]. ↩ ↩²

4. [1997] QCA 333 at [27]. ↩ ↩²

5. Love v The Queen (1983) 49 ALR 382. ↩ ↩²

6. South Australia v O'Shea (1987) 163 CLR 378 at 389, 405; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 660 – 661. ↩ ↩²

7. (2000) 199 CLR 620 at 633. ↩ ↩²