They now appeal against those convictions. In addition the Director of Public Prosecutions appeals against the sentences imposed on Doube on the grounds of their inadequacy. An application for leave to appeal is also brought against the sentences imposed on the company. A similar application on the part of Doube for leave to appeal against the sentences imposed on him was withdrawn, and was dismissed at the hearing of the appeal. All of the appeals and applications were heard together, Mr D.F. Jackson Q.C. appearing with Mr Herbert Q.C. for Doube, and Mr Glynn of counsel for the company. Mr Hanson Q.C. and Mr Flanagan appeared for the Director.

In the case of the appeals against conviction, the notices of appeal set out grounds which are common to both appellants. There are five grounds, although in the way in which they were presented on appeal it is possible to regard grounds 2, 3 and 4 as aspects of a single complaint, which is that the trial judge's summing up lacked balance and so deprived the appellants of a fair trial. In addition, ground 1 complains of the admission at trial of evidence of a conversation between witnesses Laffey and Schmidt and another witness named Nash. Ground 5 is directed to the form in which the prosecution was permitted at the trial to give particulars of count 17 against Doube, which was the charge against him of attempting to pervert the course of justice.

We begin by considering the complaint of lack of balance in the summing up, which was the main focus of Mr Jackson's submissions. In doing so, we bear in mind that, in summing up, the interests of justice require that the defence should be "clearly and fairly presented to the jury": R. v. Schmahl [1965] VicRp 95; [1965] V.R. 745, 748-749, applied in R. v. Ververka [1978] 1 N.S.W.L.R. 478-479, 480; which does not mean that every single observation must be repeated; but that "the substantial defence must be put to the jury; but not every part or particular of it": Trueman (1913) Cr.App.R. 20, 24. Nor does it mean that:

"an accused person is entitled to have his case presented to the jury in the summing up as an identifiable entirety to an extent equal to that employed in the presentation of the case for the Crown. It is obvious that in many cases the prosecution case may be complex and require lengthy explanation whereas the defence case may be simple so that a concise explanation of it is neither inadequate nor unfair ... The question in every case is whether the terms of the summing up itself taken as a whole contain sufficient presentation of the defence case to enable the jury to understand what it is."

See Dominguez v. R. (1985) 63 A.L.R. 181, 187 (Evatt, Sheppard, Miles JJ.)

Exceptionally for these times, the appellants do not complain that the jury verdict is "unsafe". However in assessing the complaint that the summing up lacked balance, it is necessary to say something about the course of the trial itself, and the relative strengths and weaknesses of evidence adduced on behalf of the prosecution and the defence.

The course of the trial. The trial occupied 22 sitting days, in the course of which some 38 witnesses gave evidence and were cross-examined, and 137 written exhibits were tendered. The transcript of testimony extends over some 1200 pages which, however, include the record of extensive submissions by counsel and rulings on the admissibility of evidence, given in one instance after hearing lengthy statements by witnesses taken on voir dire. The summing up began shortly before lunch on day 18 (which was a Friday) and continued after lunch for only about another 15 minutes, when a juror became ill. It was resumed on Monday 3 October 1994 (which was day 19) and concluded at 3 pm. on Wednesday, 5 October 1994. At 4.50 p.m. on that day, the jury returned and asked that the evidence of two witnesses Poole and Crust (which, like all proceedings at the trial, had been tape-recorded) be replayed to them. By the time that was done, it was 6.20 p.m. and the proceedings were adjourned to Thursday 6 October 1994. At midday the jury returned with an application for a redirection, which was given. They retired again at 12.20 p.m., returning their verdicts shortly after lunch at 2.36 p.m. on the same day.

These times are given because one of the particulars of complaint in the notice of appeal is that the summing up was "so long, complex and .... random as to obfuscate and frustrate the jury's task rather than clarify and assist". There is no doubt that the summing up was lengthy. It extends over some 350 pages of transcript, although about 100 of those pages are taken up with submissions on applications for redirections by counsel and redirections given in response to the jury's request. His Honour's approach to matters was characteristically unhurried. As was pointed out by Mr Hanson, the judge adopted a practice of adjourning for about 15 minutes of every hour during summing up, a course which may have been not unwelcome to the jury and prompted no complaint from them. The fact that they asked for few redirections, and that about two hours after first retiring they requested that the evidence of two witnesses be replayed, may be thought to suggest that they were well seized of the issues at the trial. After hearing that evidence replayed, they deliberated for another four or five hours before returning their verdicts, which, as has been noted, differentiated between the first five charges (as to which the appellants were found not guilty), and the other counts in the indictment.

The "upgrading" counts. The differences in the verdicts fairly reflected the relative strengths and weaknesses of the prosecution case against the appellants. The first five counts of applying a false trade description identified five separate dates in early February 1992 on which the false trade description K1 was applied to quarters of beef slaughtered and processed by the company at its meatworks at Grantham. The designation K1 is, or ought to be, applied only to beef destined for export to Korea that is the product of cattle which have been grain-fed for 100 days before slaughter. Grain-fed beef is considered superior to grass-fed beef. If the beef comes from grass-fed cattle it is graded and marked P1 for the Korean export market, and as such attracts a lower price. The beef quarters in question had, as appeared from statutory declarations given by the suppliers or growers, been obtained from grass-fed cattle, and so should not have been marked K1.

On these five counts, the question for the jury was whether the instruction to grade and mark the beef as K1 could on the evidence be sheeted home to the appellant company and its managing director Doube. The employee responsible for carrying out the grading was a worker in the production line named Lacey Crust. He was one of the two witnesses whose evidence was replayed to the jury at their request. His evidence and the "kill sheet" records which he maintained showed that gradings of grass-fed beef quarters had been entered or altered to K1 on several occasions in February 1992. This may have amounted to some evidence against the company on counts 1 to 5, but it was far from being evidence against Doube as managing director. Gregory Laffey, the company's production manager, said that on a later occasion in 1982 Doube admitted to him that it was he (Doube) who had given the instruction for this to be done (406). On the other hand, Crust himself said he had received an instruction to grade the beef K1 from a man named Ronald Schmidt. He had previously been the company's production manager, but in late January or early February 1992 he had reverted or been demoted to the position of coldroom foreman after the return to work of another employee named Kelvin Samuelson.

Apart from Crust's evidence and the admission to Laffey, there was nothing to show the origin of the instruction to "upgrade" the beef quarters to K1 in the first five counts in the indictment. Laffey's account of it was not corroborated by other evidence. In the circumstances it is perhaps not surprising that the jury were left with a reasonable doubt whether the instructions given to Crust emanated from Doube or the company itself, which would explain why they acquitted on each of the first five counts.

The "rebagging" counts. The evidence for the prosecution on the remaining counts was very much stronger. As regards the further count of applying the false trade description "packed on 12 March 1992", the evidence was that on Saturday 21 March 1992 a group of employees were surreptitiously assembled at the Grantham plant under the supervision of Schmidt and Laffey. No one was supposed to enter the coldroom outside normal working hours, and after the close of work the coldroom doors had been sealed with the official seal of the Department of Primary Industries at 1.45 a.m. on Saturday 21 March. However, later on that Saturday one of the assembled workers made his way into the coldroom through what is called a pophole, which had been deliberately left unlatched on the previous Friday afternoon, and let the other workers in. They set about rebagging and relabelling the beef in the coldroom or freezing chamber to make it look as if it had been slaughtered only on 12 March 1992, when in fact it had been slaughtered on dates in February 1992.

Preparations to carry out this rebagging had been made during working hours on Friday 20 March. Beef packaged for the Korean export market is wrapped in a stockinette and then covered in hessian bags bearing a label which shows the date on which it was slaughtered. On Friday 20 March one of the company's employees named Nathan Bugg had been employed to manufacture a set of new labels bearing the false slaughter date 12 March 1992. To do this he had, without authority and contrary to s.14 of the Export Control Act 1982, used the official stamp or mark of the Australian Quarantine and Inspection Service with which such labels are impressed. It was this action that gave rise to the charge in the indictment of being in possession of an official marking device. The next step was to substitute the false labels for those already on the hessian bags on the beef in cold storage. That is what the men were engaged in doing on Saturday 21 March.

The work of replacing the labels, or the hessian bags with new labels on them, was not completed on Saturday and the men returned on Sunday 22 March. While they were so engaged, a Department inspector Ivan Bachmann drove past the Grantham meatworks. He saw a truck parked directly outside the coldroom and, on investigating it, discovered what was happening. Laffey and Schmidt concocted a story which sought to explain away the activities that were taking place. Eventually, however, they were in about June 1993 themselves charged with offences under the Export Control Act. At first they continued to maintain their original story but in about October 1993 they decided, as they said, to tell the truth. On 25 February 1994 they pleaded guilty and were sentenced in the District Court. The prison sentences imposed were suspended on account of the assistance they were providing to the prosecuting authorities. At the trial of the charges which resulted in the present appeal, Laffey and Schmidt were the principal witnesses on behalf of the prosecution.

The prosecution evidence. The account they and other prosecution witnesses gave at the trial was as follows. In early March 1992 the company had contracted to supply 196 tonnes of K1 beef for export to Korea. It was the function of the livestock manager Glen Poole to buy in the livestock from which to fill orders for beef. In this instance it could be expected to take some six to eight weeks, and early in March of that year he was given instructions, which were never revoked, to begin buying the stock. Poole, it may be noticed, was the second of the two witnesses whose evidence the jury asked to have replayed to them.

Meanwhile the company's stocks on hand of frozen beef were increasing to such an extent that the coldroom was overcrowded and could accommodate no more. According to Laffey's evidence, on Thursday 19 March 1992 Doube asked him to come to the conference room at the Grantham meatworks. After they arrived there, Doube said to him "Laff, that meat down the back will need a facelift". Laffey inquired if that was the meat that Nash had been telling Schmidt there was supposed to be a contract number for, to which Doube replied Yes. Kevin Nash was the assistant general manager and shipping manager for the company. At that moment Schmidt came into the conference room and Doube repeated that the meat at the back would need a facelift, and asked if there were any problems with that. Schmidt said that they would have to rebag it and change all the dates, adding that, with the DPI around, it could never be done during normal working hours but would have to be done after work or at a weekend. Doube's response, according to Laffey, was : "I don't care what youse do as long as it's done, or nobody will have a job". Schmidt's evidence of the conversation was substantially the same as Laffey's, except that he said he told Doube there was 60 tonnes of it to do. He confirmed he knew what Doube was referring to when he spoke of the meat "down the back". He meant the meat in the coldroom. It was the same meat (the beef quarters) that Crust had been instructed to upgrade to K1.

Laffey and Schmidt knew the seriousness of what they were being instructed to do, which could jeopardise their livelihoods if they were caught doing it. On the following morning they went to Helidon, where Nash had his office, and told him of it, and expressed their concern at the risk involved. According to their evidence, the response from Nash was that there was nothing he could do about it. It is the admission of evidence of this conversation with Nash that forms the subject of ground 1 of the notice of appeal. Laffey then went on to see George McKnight, who was the financial controller and paymaster for the company. He asked McKnight how payment could be arranged for the men doing the rebagging on Saturday without the paysheets revealing what was happening. He was told to tack the hours on to their normal weekday working times. Objection to the evidence of this conversation, which was also the subject of ground 1, was abandoned on appeal.

The perversion of justice count. After the rebagging activities were discovered by Bachmann of the DPI on Sunday 22 March 1992, Doube was informed of what had happened. According to Laffey, who telephoned him with the news, Doube said he had already sent Schmidt there to do some sorting out, and that it would be better if he (Doube) stayed "on the outside" and did some organising. A conference was held at 3 p.m. that day, in the course of which Doube said he would suspend Laffey and Schmidt on full pay, but "you'll want to come up with a real good reason to get us out of this if you can". Letters of suspension were typed and handed to them by Doube, who said "I'm suspending you. You're on full pay but I'll look after you". On the following day (Monday) Laffey and Schmidt stayed away from the works, but at 7.30 p.m. went to Doube's place where another conference too place. Laffey put forward a story which they had concocted to tell the DPI, which was approved by those present, who included Doube and his brother and co-director Robin Doube. Doube arranged for Laffey and Schmidt to leave early next day for the Gold Coast, in order to keep them out of the way of the DPI investigators.

From that time Laffey and Schmidt stayed away from the meatworks. They continued, however, to work for the company. At his home at Gatton Laffey had a garage or room, which was thereupon fitted out as an office with a fax machine and computers. He and Schmidt worked there daily, the company courier calling to deliver or take away documents. Laffey looked after transport arrangements for the company, and pursued a number of claims which it had in relation to fat arising out of exports of meat. In May 1992 Laffey was sent by the company to the United States on a trip, of which an official report (ex. 77) was later prepared and provided to the company. The itinerary (ex. 76) for the trip was arranged and all expenses were paid for by the company. Schmidt went overseas with Laffey, although the business of investigating the claims which Laffey was sent to do was beyond the scope of Schmidt's normal duties.

On their return from the United States, Laffey and Schmidt were allowed to go back to the company premises at Grantham but were kept away from the abattoir. From time to time Doube sent them encouraging words to the effect that they should stick to their story and they would soon get their old jobs back. So matters continued until August 1992, when they were called in by Doube and told that he would have to dismiss them as he was being put under pressure to do so by the DPI or AQIS (cf. ex. 125). Both Laffey and Schmidt were dismissed on about 28 August 1992 although even after that Laffey was sent on another trip, paid for by the company, to the U.S.A in November 1992, for which he received a fee of $2,000. In September 1993 they were given a trip to the Gold Coast, where they stayed at a motel at company expense. Until they were dismissed they were paid their normal salaries and in due course received group certificates in respect of it (ex. 79). Thereafter they were both out of work. On several occasions in mid-1993 Doube offered to set them up in a butchering business. From about July 1993, they began receiving $300 a week in cash, which came from Doube's private resources and used to arrive in brown manilla envelopes sometimes with their names written on the front of the envelope in Doube's handwriting (ex. 86). On one occasion in July 1993, after they had been charged with offences under the Act, Laffey sent the money back with a note to Doube saying "My good name ... cannot be bought for $300" (ex. 82). After that, Doube telephoned and said he was trying to help and was not asking for favours. He came to Laffey's home a few nights later and gave them envelopes with $300 saying he was trying to look after them. He also gave them each a cheque for $5,000 from the company accompanied by a pay slip saying "Portion of holiday and termination pay" (exs. 83 to 85).

It is these acts on the part of Doube that were identified and relied on by the prosecution as particulars of Doube's attempts to pervert the course of justice. The making of the payments and the provision of other benefits were not contested at the trial. What was disputed was Doube's motive or purpose in making or authorising them. It was, Doube said in his evidence, done because Laffey and Schmidt were, to use their phrase, "doing it hard"; they had, he said, been loyal workers and he felt sorry for them. The payments stopped in late October 1993, just before the first mention date on 2 November of the hearing of the charges against Laffey and Schmidt. According to their account of it, there was an angry meeting one Friday evening between them and Doube shortly before that date, in the course of which Schmidt said he had been "set up" and was going to tell the truth. In cross-examination Doube said he remembered "something to that effect" being said on that occasion; but he did not know what Schmidt was really talking about, and he didn't take much notice of ramblings of people when they had had a lot to drink.

The jury plainly did not accept Doube's evidence that his motive for providing the payments and other benefits to Laffey and Schmidt after 22 March 1992 was entirely altruistic. They found him guilty of the charge of attempting to pervert the course of justice. Such an outcome is not at all surprising when the undisputed objective facts are considered. There was evidence that, after being rebagged and labelled as K1 and slaughtered on 12 March 1992, the 60 or so tonnes of beef would, taken at face value, have been worth about $130,000. The cost of rebagging it was a little over $5,000. The company had a huge annual turnover running into many millions of dollars, but its profit margin was, according to the evidence, very narrow indeed. It and Doube, as one of the only two effective shareholders, stood to gain financially from the illegal enterprise, while as mere employees Laffey and Schmidt did not. It is difficult to see what they could have hoped to gain personally from it, knowing as they did the risk it entailed for their own future in the industry. The suggestion put forward in the defence case at trial was that the exercise was undertaken in order to cover up Schmidt's action in February 1992 in instructing Crust to upgrade the beef quarters. However, the jury may well have thought it would have been quite impossible for the rebagging operation to be carried out at the meatworks without other officers of the company becoming aware of it and reporting it to the managing director. The conversations with Nash and McKnight were contrary to what one would expect if an attempt was being made to hide Schmidt's conduct from higher management. In fact, Bachmann's uncovering of the rebagging exercise had adverse consequences for the company and its cash flow at the time. Its export licence was suspended, which would scarcely have endeared Laffey and Schmidt to a managing director who was trying to maintain the company business. In the circumstances Doube's forgiving attitude, as expressed in his testimony at the trial that it was impracticable to dismiss employees simply for making mistakes, was unlikely to have been viewed by the jury as convincing. The most obvious explanation for his subsequent generosity to Laffey and Schmidt was, the jury may have thought, that he hoped to dissuade them from informing the DPI of what had really happened, or of giving evidence against him and the company.

Principal complaint on appeal. The broad outline which has so far been given of the evidence at the trial helps to put in context the appellants' complaint that the summing up was unfair. It would be a mistake to start with the assumption that any apparent lack of balance in it was necessarily due to a preference on the part of the judge for the prosecution case rather than to the inherent strengths and weaknesses of the evidence. The problem for the defence was to destroy the evidence of the principal Crown witnesses Laffey and Schmidt. Like counsel, the judge has nothing but the material at the trial to work with. The difficulties confronting the judge in summing up the defence case in this instance are to some extent reflected in the way counsel for Doube went about cross-examining Laffey and Schmidt:

"MR HERBERT: Mr Laffey, you're not an inveterate liar. You're pathological, I'd suggest? --- My memory is right ---

You are, aren't you? --- My memory might not be the best, but at least I --- I tell the truth as I recall it.

You're just a liar. You, I suggest, you made the blue and got this bagged as K1 because you're incompetent? --- No, I didn't want it bagged. Why would I want to get it bagged for?"

To devise a summing up capable of accurately conveying to a jury a case of that nature calls for judicial skill or ingenuity of an unusual kind.

On behalf of the appellant Doube, Mr Jackson Q.C. submitted that there were four major areas of concern in relation to the summing up. One, which was its length and obscurity, has already been partly accounted for by reference to the duration and conduct of the trial as a whole. Another was its sequence, meaning particularly the order in which the trial judge approached the issues and the time he took to arrive in summing up at the critical questions in the case. Related to this was the contrast which it was said he was at pains to emphasise between the respective roles of counsel for the prosecution and the defence. Overall, it was said that the summing up showed a marked tendency to subject the evidence of witnesses to detailed scrutiny if they were helpful to the defence (as with Crust and Doube), but not if they were essential to the prosecution case, like Laffey and Schmidt, with the consequence, so it was submitted, that the defence case had been downgraded in the eyes of the jury.

The DPI seals. It cannot be denied that it took some time for his Honour in summing up to arrive at the principal questions in the case. He began by discussing a matter raised by Mr Glynn for the company, who had addressed the jury last. It was whether or not the coldroom doors had been sealed and remained sealed while the rebagging exercise was being carried out on Saturday 21 and Sunday 22 March.

There was evidence from Bachmann that he had sealed the doors at 1.45 early on the morning of Saturday 21 March 1991, and attached numbered official tags. In the end, the evidence at the trial does not seem to have disclosed specifically whether the seal on the doors was broken in order to let the employees in to carry out the rebagging on Saturday, or whether they too entered through the pophole, or in some other way. In the course of cross-examination, Doube agreed that the rebagging exercise had been carried out without breaking the seals. He later said he did not know enough about the coldroom to be able to say whether or not this was capable of being done. Objection was taken to his admission that the seals had not been broken having regard to the fact that he was not there on the Saturday in question. On the other hand, there was in evidence a handwritten instruction (ex. 75) from Doube which disclosed a detailed knowledge on his part of boning operations in the meatworks and also showed the extent to which in practice he involved himself in matters of that kind. In the end it was, as his Honour pointed out in summing up, a matter for the jury to assess the effect of the evidence before it, the detail of which was read to them from the transcript in the course of the summing up.

As can be gathered from what was said in this part of the summing up, the point being made by Mr Glynn in his address (which was not transcribed) was that if the seals were broken in order to enable the rebagging to be carried out there was no prospect of avoiding an inquiry by the DPI. Hence, or so it was submitted, the jury would be disposed to conclude that Doube or his company would never have given a direction for the rebagging to be done when it was known that an investigation was bound to follow; if that was so, the jury would be justified in acquitting the appellants altogether. The submission was, however, in a sense a two-edged sword; for if, as the defence contended, it was really Laffey and Schmidt who had organised the rebagging on their own initiative in order to cover up the earlier upgrading of the beef quarters, breaking the seals would equally have led to their operation being discovered. It is therefore difficult to see how the point could be regarded as critical in either direction. His Honour seems to have dealt with it as and when he did simply because it was the last submission in Mr Glynn's final address and one that was put to the jury as possibly decisive in favour of the appellant. It may be that another reason for discussing it so soon was that the summing up began shortly past noon on Friday. His Honour may have been hoping to make use of the weekend to prepare the main thrust of his summing up, which he planned to defer until the following week. It cannot be regarded as evidence of a deliberate resolve on his part to point up weaknesses in the defence case.

The tape recording issue. When a juror unexpectedly became ill on Friday afternoon and the summing up had to stop, his Honour had been preparing to deal with an earlier request by the juror for directions "on the rules governing tape-recordings of conversations". In cross-examination Laffey agreed that he had a habit of tape recording conversation with others, and that he often carried a tape recorder with him for that purpose. He denied he had tape recorded any conversations with Doube, or that he had ever claimed to have done so. The defence later produced a witness named Biddle, who said that in 1993 he had come upon Laffey and Schmidt, with whom he was acquainted, in the Club Hotel in Gatton. His evidence was that, after an exchange of pleasantries, Laffey had said that Schmidt had been charged with three extra offences; but that they had had a meeting with Doube "and we have got him on tape". Under cross-examination Biddle explained that he later began to worry about the fact that a conversation had been taped because he thought "you weren't allowed to tape people". He said he went to "a lot of trouble" trying to arrange for Doube to get in touch with him, and, when at last he did, Biddle told him about the taped conversation. Much later he gave a statement about what he had heard at the hotel to a Mr Munt, who was a private detective hired by the company in preparation for the trial.

The learned judge said he understood the jury to be asking how, if it was against the law or improper to tape record a conversation, Laffey as a witness could have admitted to having done so, or how he could have been required to present the tape at the trial. His Honour's explanation was that, even if it was unlawful, Laffey would not have been entitled to tell a lie about it; the proper course would have been for him to claim privilege in relation to the question about the tape. The judge concluded his directions on the point by explaining that Laffey had sworn in evidence that he had not taped the conversation, adding;

"The question ends there as to that aspect of it. What you do is you go on and you assess the accuracy and credibility and reliability of Laffey's evidence, and the question of his being embarrassed by an illegal tape or an improper tape just does not arise here for the reason I have outlined"

The matter was taken up by Mr Glynn on his application for redirections and responded to by Mr Hanson in his submissions on the matter. It cannot be said that his Honour's response to the jury's inquiry expressed the legal position as regards tape recording of conversations with great clarity. As a party to the supposed conversation with Doube, Laffey would not have been precluded from recording it, but only from publishing the recorded conversation to someone else (Invasion of Privacy Act 1971, s.45(1)), which was not something he had tried to do. However, the point Mr Glynn said he wished to make was that it was wrong for the judge to tell the jury that "the question ended there". They might nevertheless have inferred that there was a tape of a conversation, but that it had not been produced because it was inconsistent with Laffey's evidence at the trial. The jury, Mr Glynn said in his submission in support of the redirection, "may not draw that inference, I readily concede, but it is open to them".

The way in which his Honour had directed the jury was, however, essentially correct. Biddle's evidence was admissible at the trial pursuant to s.17 of the Evidence Act 1977 as tending to prove a prior inconsistent statement on the part of Laffey, which went only to his credit. As such, Laffey's assertion that he had never taped the conversation with Doube was final, leaving it, as the judge said, simply as a factor to be considered in the jury's assessment of his credit as a witness. In Queensland, the common law rule has been qualified in s.101 of the Evidence Act. However, no reliance was placed on that provision in Mr Glynn's submission or on this appeal. It is, in consequence, not possible to regard it as demonstrating any lack of balance or partiality on the part of the trial judge in summing up.

Roles of counsel. Having referred to the matter of Laffey's and Biddle's testimony about the conversation in the Club Hotel, the trial judge went on to discuss the jury's function of assessing the credibility of witnesses, emphasising in doing so that any comment that he as the judge might make on the subject was not binding on the jury, who were expected to reach their own conclusion on matters of credibility. The judge was there, his Honour told them, to provide "assistance but without influence". On this topic his directions to the jury were stated in conventional terms. No exception could be or has been taken to them. What is complained of on appeal are his Honour's directions to the jury concerning the respective roles of prosecuting counsel and defence counsel. In expounding the jury's function of assessing credit, his Honour went on to draw a distinction between counsel for the accused and counsel for the prosecution. The former he said had one duty only, which was the professional duty of representing to the best of his ability his lay client by doing all that the client himself could legitimately do if he had the skills of counsel. With respect to prosecuting counsel, their duties were "quite different from what you might expect if you followed some T.V. shows ... to guide you on the point". In the first place, counsel for the Crown must observe the public interest in the general maintenance of law and order, and must bear that in mind in conducting the case. Secondly, the interest they must represent was the legitimate interest of the community in proving, to the proper standard and upon proper evidence, the guilt of those who offended against our laws. The third distinct interest was that, in representing the community as they did, counsel for the Crown had no interest in securing a dishonest finding or an inappropriate verdict of guilt. That, his Honour added, "is the vast difference between us and the USA system where the District Attorney goes out for the kill".

It is difficult to discover in this or any of the other matters mentioned by his Honour in the same context anything that is capable of sustaining the submission on appeal that defence counsel's role was being represented to the jury as "untrustworthy", or which suggested that the conduct or submissions of prosecuting counsel were more likely to assist the jury or provide a safer foundation for their decision than those of defence counsel. What his Honour said on the subject was accurate enough, even if it was pursued at undue length. As often happens, however, the digression in question was apparently prompted by some remarks made by counsel in addressing the jury. In opening the defence case, Mr Herbert Q.C. had made the claim that the prosecution was pressing the case against Doube "very very hard", and elsewhere that the prosecution was "out for a kill". To this, Mr Hanson informed us, he responded by saying that his opponent's behaviour resembled something seen on American television shows, and the histrionics that go with it. It was evidently these remarks that led to his Honour's unflattering reference to the American legal system. The case itself was, as Mr Hanson acknowledged before us, one that was certainly "hard fought".

Crust's evidence. His Honour also used his account of the respective roles of counsel to explain why Lacey Crust had been called but not cross-examined by the Crown, even though his evidence in chief was inconsistent with the prosecution case that it was Doube rather than Schmidt who had given instructions to "upgrade" the beef quarters to K1. The Crown, he said, was under a duty to produce all relevant evidence at trial, and that was "exactly the position with Crust". In assessing his evidence, his Honour said it would be proper for the jury to bear in mind that his testimony had not been tested under searching cross-examination. Mr Herbert and Mr Glynn had no interest in detracting from Crust's evidence that it was Schmidt who was the author of the upgrading instruction, and, having called him as a witness, Mr Hanson had no right to cross-examine him.

Whatever may be thought of the appellants' complaint that this involved belittling the evidence of Crust, it seems to have had little, if any, impact on the verdicts that resulted. Both appellants were acquitted of the first five charges, to which Crust's evidence was relevant, of applying the false trade description K1 to the beef quarters. The trial judge had been careful to introduce his remarks on Crust's evidence with the explicit caution that what he was saying was "in the area of comment". It was possibly because of this that the jury asked for his evidence to be replayed in full before returning their verdicts. Bearing in mind that they then heard the whole of his testimony again, it is difficult to give much weight to the argument that in this part of the summing up the trial judge had somehow pre-empted the jury's use of Crust's evidence for the purpose of assessing the credibility of Laffey and Schmidt on other issues at the trial.

Doube's evidence. The other witness whose evidence was said to have been disproportionately scrutinised in summing up, compared to the way in which Laffey and Schmidt were treated, was Doube himself. The judge read to the jury a passage from the transcript after suggesting that they should ask themselves whether it showed he was prevaricating or evading the question put to him. The passage itself seems relatively innocuous, and it is possible that his Honour mistakenly chose the wrong one. It was, as it happens, by then the end of the day (which was a further subject of complaint by the appellants), and on resuming next morning the judge read out some other passages of Doube's evidence. It must be said that these and other parts of Doube's evidence leave the distinct impression that he was not always prompt or direct in answering questions in cross-examination, from which in several instances he was fortuitously rescued by timely objections by his counsel.

The passages which the judge chose to read out were pertinent and useful aids to the jury in assessing Doube's credibility. It is not, we think, correct to say that the evidence of Laffey and Schmidt was dealt with so much more leniently. Cross-examination of Laffey covered some 150 pages of transcript extending to a variety of matters such as the names he used for Doube; his close friendship with Schmidt; his retention of the money received from Doube and the company; the concoction of the story originally told to the DPI; his practice of making tape recordings; and his general predilection for telling lies (of which a sample of the questioning has been given). Schmidt's cross-examination was shorter but covered a comparable range of matters. We were not taken on appeal to particular passages in the evidence of these witnesses that might have been used to demonstrate a tendency to prevaricate or evade; but his Honour spent some time emphasising to the jury the potential weaknesses in the testimony of Laffey and Schmidt arising from the possibility of "memory contamination" and concoction, an art in which he suggested they had become practised performers. There was, he pointed out, the initial fabrication in March 1992; followed possibly in June 1992 by some further statements to the DPI investigator Woods; then their evidence before the committing magistrate; and subsequently the whole process of cross-examination about their prior statements. He reminded the jury that by the end of June 1993 they were under financial pressure at the time when they were talking to Woods, but simultaneously began accepting money in the brown manilla envelopes delivered by Doube. Both Laffey and Schmidt, his Honour advised the jury to reflect, "were well capable of telling lies then, and manufacturing them. You may think this important when you come to assess the accuracy and reliability of their evidence now".

Corroboration. The difference in the verdicts returned on the first five charges and the other counts in the indictment are an indication that the jury were fully aware of their task. On any view Laffey and Schmidt were accomplices, and his Honour warned the jury in terms of s.632 of the Code (which he read to them on three occasions) of the danger of acting on their uncorroborated testimony. Specifically, he told the jury they should scrutinise the evidence of persons who were accomplices "very, very closely and carefully because it is suspect evidence ...". The directions on the subject extend over many pages of manuscript. In the notice of appeal the complaint made is simply that "the learned trial Judge failed to direct the jury in accordance with s.632 of the Code". The point does not receive specific mention in the appellants' written outlines of argument. On the hearing of the appeal it was refined to saying that the jury ought to have been warned in specific terms of the need for independent evidence that implicated the appellants in the particular offences charged. It is not clear that the matter was ever put as precisely as that in the course of the application for re-directions at the trial.

In any event, the circumstances which his Honour identified in summing up were plainly capable of being considered as corroborative not only of prosecution testimony that the offences had been committed but also that the two appellants were involved in committing those offences. Reference was made to the activities that were needed and undertaken in order to carry out the rebagging operation. "The evidence of these many matters", his Honour told the jury:

"may, if you see fit, tend to support an inference, drawn rationally and reasonably and without speculation, that Laffey and Schmidt were acting on the instructions of their superior rather than on their own initiative in going about this re-bagging exercise. And who are the possible superiors on the evidence? Well, on part of the evidence, it is Nash and Doube. There is a body of evidence there, apart from Laffey and Schmidt, that deals with all of those matters. You may regard that as corroborative if you see fit, on the basis that it tends to support the evidence of particularly Laffey and Schmidt."

As regards count 17 (attempting to pervert justice), his Honour referred the jury to the payments and benefits received after 22 March 1992, and the documentary exhibits associated with them, as capable of supporting Laffey's and Schmidt's account. There was plainly a considerable body of evidence, independently of their oral testimony, that could be considered as confirming what they said in material particulars, and of implicating the company and Doube in the illegal activities that were carried out.

The Roma evidence. The corroborative material was circumstantial, but it was not for that reason less cogent. A central question was whether Doube gave the instruction attributed to him by Laffey and Schmidt in the conference room at Grantham before the rebagging operation commenced. The strength of the Crown case was the difficulty of supposing that the operation would have taken place, as well as the improbability that Laffey and Schmidt would have involved themselves in it, without having received some instruction from the managing director. The defence sought to undermine the inference to that effect by adducing evidence that Doube was in Roma on the day (which was Thursday 19 March) nominated by Laffey and Schmidt as the day on which the instruction was given.

The company conducted meatworks not only at Grantham but also near Maryborough and at Roma. To attend to this business it possessed four aircraft and had three pilots available to fly staff from place to place. Doube testified that on the Thursday in question he and others had flown to Roma, where they conducted a training course and then stayed the night, before returning at some time on the following day. His father Rex Doube and other executives of the company who were with him testified to his being in Roma at that time, and documentary evidence was presented, in the form of a bankcard voucher and an automatic teller docket, to support this testimony. After what seems to have been a protracted struggle between counsel, the logbooks of two of the three pilots were also put in evidence.

What resulted was described by Mr Hanson as a trial within a trial. In Piddington v. Bennett & Wood Pty. Ltd. [1940] HCA 2; (1940) 63 C.L.R. 533, 553-554, 557-558, 567, there are passages in the majority judgments that condemn the admission of affirmative evidence of collateral matters with a view to discrediting the testimony of a person claiming to have been an eye witness of the event in issue. No objection was taken at the present trial to the admission of the Roma evidence. It seems in any event to have partaken of the character of alibi evidence, although, so far as can be gathered, no notice of alibi was given in conformity with s.590A of the Code. No objection was raised to the admission of the evidence on the ground of absence of any such notice.

In summing up the learned judge referred to the evidence of the witnesses, the bank documents and the aircraft logs; but, after saying that the jury might see this evidence as important, he commented that there was a danger of their losing sight of the question they had to decide. "You are not", he instructed them:

"engaged in a contest about Thursday or Friday; that is part of it certainly; but the ultimate question is whether the Crown has proved on the evidence, or failed to prove, beyond reasonable doubt that Doube gave the facelift instruction at Grantham to Laffey and Schmidt. That's the question...".

On appeal the appellants argued that by the manner in which the judge had approached the Roma evidence his Honour had "trivialised" the issue to the jury. It was not, however, suggested that he was wrong in directing the jury that the question whether it was a Thursday on which the instruction had been given was not the ultimate issue; on the contrary, it was acknowledged that it was a correct statement of the position, but that closer and more detailed attention should nevertheless have been devoted in the summing up to the Roma evidence.

It is, we think, impracticable if not impossible to have it both ways. If the judge was correct in directing the jury that the ultimate question was whether they were satisfied that the instruction had been given, rather than the precise date of it, it would have served only to distract the jury if he had then proceeded to a detailed scrutiny of the Roma evidence, which in some respects was not by any means conclusive in favour of the appellants. Having regard to the time and effort it absorbed at the trial, the jury must have been well aware of the difficulty it posed for the prosecution. More detailed attention to it would not have solved what Mr Hanson described as "a mystery", or strengthened the effect it had presumably already made on the minds of the jury. The judge was, in our opinion, correct in treating the issue as he did.

The chronology. On appeal another and separate complaint, which does not seem to have found its way into any of the appellants' written material, was levelled at the judge's action at the end of the summing up in presenting the jury with an oral summary of events arranged in chronological sequence. The obvious risk in summarising matters in that way is that a judge may commit the error of treating evidence as proof of an event that is very much in dispute. In the present case his Honour guarded against that possibility by repeatedly warning the jury, both generally and with respect to particular events, that matters he was referring to were in dispute. He concluded his chronological summary by saying that, in order to compile it, it had been necessary to make assumptions that pieces of evidence particularly dates were accurate; but added:

"All questions of fact are for you. That I have included a date in this summary or chronology does not disguise from you for a moment that you must go behind and examine the evidence for yourself, for the accuracy of the date. Please heed that warning. To do otherwise is to desert your function, as it were."

In view of this and the other such directions given by his Honour, it is not easy to grasp the point of the appellants' criticism. Its essence, as stated in the submissions on appeal, was that the effect of compiling the chronology was "in effect [to] put together strands which perhaps the jury might not otherwise have put together ...". There is, however, no vested right in an accused person to insist that the case against him be left in such a state of disorder or confusion that the jury feel compelled to acquit because of inability to grasp the sequence of events. The complaint here does not sit comfortably with the appellants' earlier claim that the summing up was "so long, complex and random as to obfuscate and frustrate the jury's task, rather than to clarify and assist". There is nothing in his Honour's use of a chronological sequence capable of justifying the appellants' claim that the summing up was unfair, or lacking in balance, or weighted in favour of the Crown. If, as the appellants suggest, the summing up was long, tedious and obscure, the chronological summary at the end of it went a long way to curing those defects.

Redressing the balance. In what we have said so far, we have considered the specific matters of complaint put forward to support the appellants' claim that the summing up lacked balance. A number of other criticisms are mentioned in the notice of appeal, but are stated in terms that are simply assertive or argumentative rather than specific. Examples are that the summing up "consisted principally of an attack on the defence case"; that it "largely followed, to the extent possible, the structure of the Crown address, consisting primarily of an attack on the appellant"; and that it "grossly favoured the Crown in a way which did not reflect the strength and weaknesses of the respective cases". Generalisations as broad as these are for the most part capable of being answered only by equally broad assertions to the contrary. Having read the summing up and critical portions of the evidence, we can in the end only say we do not share the view of the author of the notice of appeal that the summing up was defective or deficient in the respects mentioned in the notice of appeal. Throughout his directions to the jury his Honour was punctilious in reminding them that matters of fact and credibility were for their determination, and that they were not bound by any comments that he might make on the evidence before them.

There is, however, a final matter that merits special attention. It arises out of an affidavit by the corporate appellant's solicitor, Mr Scattini, which was produced at the hearing of the appeal. In it Mr Scattini, who was present at the trial, deposes to having a specific memory of a comment by the trial judge in response to a submission by Mr Glynn that the summing up had been "unbalanced and unfair". According to the affidavit, his Honour said that anyone who had been in the court room for the duration of the trial would have been able to sense what had been going on, and, further, that he was "redressing the balance".

The matter is made the subject of ground 3 in the notice of appeal, although it was not specifically addressed to in the oral submissions of Mr Jackson Q.C. in this Court The first question is whether the remark ascribed to the judge was made at all. Mr Scattini points out that it does not appear in the transcript, saying that he would have expected to find it at about p.1565 of the record. While not agreeing that it was said, Mr Hanson Q.C., speaking from the bar table acknowledged that when he read the reference to "redressing the balance", it rang "a vague bell" with him, although he did not know whether or not he had imagined it. It is not clear precisely where, in point of proof, the matter now rests. Section 10(2) of the Recording of Evidence Act 1962 provides that a certified transcription of a record under the Act is to be received by a court as evidence of anything recorded in it. The provision has been amended since it was considered in Savanoff v. Re-Car Pty. Ltd. [1983] 2 Qd.R. 219, 230. At that time s.10 spoke of a certified transcript being "prima facie" evidence of anything recorded, although the provision in its present form may perhaps lead to the same result where no evidence to the contrary is adduced. In the present instance, however, what is in question is not what is recorded in the transcript, but what is not recorded. One would have thought that, if it was not in the transcript, the first place to search for the missing words would be in the tape recording of the proceedings itself; but nothing like that seems to have been done here.

It does not seem altogether fair to treat the trial judge as having made the remark attributed to him without his having the opportunity of being heard on the subject himself. A course that is open to this Court would be to ask him for a report on the matter under O.1X, r.15(a) of The Criminal Practice Rules. The positive recollection of the trial judge stated in such a report is generally regarded as final in relation to such a matter. See R. v. Tucker [1915] NSWStRp 69; (1915) 15 S.R. (N.S.W.) 504, 509. Here, however, the question was never drawn to his attention before his report in standard form was furnished to this Court. By the time of the hearing on appeal his Honour was recuperating from a severe illness.

In the circumstances it seems preferable to proceed on the assumption that the remark was made without finally deciding whether or not it is the fact. Even on that footing, it is not easy to see how it could be said to affect the outcome of the trial or the appeal. It is not suggested that anything to the effect alleged was said in the presence or hearing of the jury, rather than in the course of an application for redirections in the absence of the jury. Admittedly the accused Doube would have been present, and we have recently stressed that trial judges should avoid saying anything that arouse in the accused suspicions of bias on the part of the judge. See R. v. Montgomery (C.A. 400 of 1994). In the end, however, it is not easy to see the relevance of such a remark on this appeal. If the summing up were found in fact to be lacking in balance, it would not be necessary to resort to the remark attributed to the judge here; if the opposite conclusion were reached, the fact that the remark had been made would no more affect the summing up than if it had not been made at all. It follows that the matter is not one that is capable of influencing the result of this appeal and we need not consider it further.

Ground 1 raises a question that is considerably more difficult to resolve than the matters so far considered. It concerns the admissibility of the conversation which Laffey and Schmidt had with Nash at Helidon soon after receiving Doube's instruction to rebag the meat. It will be recalled that they were worried about doing what Doube had told them to do, and on the next morning went to see Nash at his Helidon office to tell him about it. There is evidence that they hoped he would countermand the order, but in the result they said he told them there was nothing he could do about it. His evidence was that he told them not to do it.

Nash was the company's assistant general manager. He was he said also the shipping manager with responsibility for ensuring that the company "would package and load the product as much as possible in accordance with the contracts we had with customers". In that capacity he had an obvious interest in an instruction or proposal which, if carried into effect, would at once have placed the company in breach of its contract with those who had ordered the consignment of 186 tonnes of K1 beef of recent slaughter date for export to Korea. According to the evidence of Doube himself, Nash had authority to tell Laffey and Schmidt not to rebag the meat.

In these circumstances there is every reason to suppose that the conversation, in which Laffey and Schmidt informed Nash that they had been told to rebag the meat, was admissible under the principle in Tripodi v. The Queen [1961] HCA 22; (1961) 104 C.L.R. 1, 7, as an act done in furtherance of a conspiracy or joint enterprise, involving Doube, Laffey and Schmidt, to falsely describe the meat that was to be rebagged. See also Ahern v. The Queen [1988] HCA 39; (1988) 165 C.L.R. 87 at 94, 95, 99. Telling Nash by what means or from what source the export order was to be fulfilled was a step in carrying out that enterprise. It would be difficult to imagine how an oral instruction given by the senior executive of an organisation could be proved to have been passed down the line except by evidence that successive employees repeated it to the other individuals in the same enterprise: cf. Trade Practices Commission v. Allied Mills Industries Pty. Ltd [1931] ArgusLawRp 29; 37 A.L.R. 225, 236-238, 249-250. If on that footing it was admissible against the company, it must also have been admissible against Doube as the managing director who initiated it.

This was one of the bases on which Mr Hanson relied in tendering the evidence and on which it was admitted at the trial. While not abandoning it, Mr Hanson also elected on appeal to live more dangerously by submitting, as he had also done at the trial, that evidence of the conversation with Nash was admissible primarily as original evidence of the intention of Laffey and Schmidt to carry out rebagging of the meat. On this footing, it was said to be admissible, not as having been conveyed to Nash as information about an instruction which they had received from Doube, but of something that was going to happen in the future. Once admitted in evidence, it would then be for the jury to work out, as a matter of inference, whether Laffey and Schmidt would voluntarily and openly have disclosed their intention to Nash if they had been acting on their own initiative rather than relying on an instruction from someone higher in the management chain, who in the circumstances could only have been the managing director Doube.

The doctrine that a person's own statements of intention to do a particular act are admissible evidence of the existence of a design or plan to do the act in question is well established in the United States. See Wigmore on Evidence s1725, vol. VI, at pp.129 et seq. (Chadbourne revd. ed.). An illustrative example is afforded by _United States v. Annunziat_o [1961] USCA2 490; 293 F. 2d 373 (1961), where Annunziato, a union organiser in Connecticut, was convicted of receiving money from an employer contrary to the Taft-Hartley Act (the Labor Management Relations Act of 1947). Evidence was received of a conversation between one Mayhew, the project manager of Terry Contracting Co. Inc., and Harry Terker, who was its corporate president, in which Terker asked Mayhew to deliver a manilla envelope at New Haven saying it was for a commitment he had made. Mayhew in due course delivered it to Annunziato. There was also evidence of another conversation between Terker and his son Richard, in which Terker said he had agreed to send some money to Connecticut for Annunziato. Harry Terker having died by the time of the trial, the admission of evidence of the two conversations was confirmed in the Court of Appeals, Friendly J. adopting the principle in Wigmore that the plan or design may be evidenced by a person's own statements as to its existence, and that "here the declarant accompanied his statement of future plan with an altogether natural explanation of the reason, in the very recent past, that had prompted it" (at 373). The Court's opinion contains references (at 378) to the English decisions in Sugden v. St. Leonards (1876) L.R 1 P.D. 154, 251, concerning the reception of declarations to prove state of mind, and Lloyd v. Powell Duffryn Steam Coal Co. [1914] A.C. 733.

The question here is whether any such doctrine forms part of the law in Australia. In Walton v. The Queen [1989] HCA 9; (1989) 166 C.L.R. 283, a statement by the victim of a murder that she was going to meet the accused was held to be relevant and rightly admitted as evidence of the victim's state of mind, Wilson, Dawson and Toohey JJ. saying (at 305) that the probative value of such statements "lay in the fact of their having been made rather than in the truth of any assertion or implied assertion contained in them". Mason C.J., who agreed, said (at 288-289) that statements by a person about his intentions or state of mind are often admitted into evidence; and that the better view was that they are original evidence, and not hearsay, where those intentions are a fact in issue. In the course of his reasons, his Honour referred to Sugden v. St. Leonards, Lloyd v. Powell Duffryn, the passage from Wigmore, and the leading American case of Mutual Life Insurance Co. v. Hillman [1892] USSC 186; (1892) 145 U.S. 285, which was also considered in U.S. v. Annunziato.

The other Australian decision particularly relied on by Mr Hanson was Pollit v. The Queen [1992] HCA 35; (1992) 174 C.L.R. 558, in which the High Court confirmed that statements made out of court are admissible to prove the state of mind, including intention, of the maker of the statement, provided it is a fact in issue or tends to prove a fact in issue; but a majority of their Honours held that the state of mind of the maker of the statement in question there was not a fact in issue nor did it tend to proof of a fact in issue in that case, and so was not admissible in evidence [1992] HCA 35; (174 C.L.R. 558, 564-565, 585, 593, 609, 623).

The question is to decide on which side of the line the statements fall here. The statements by Laffey and Schmidt to Nash were that "we were supposed to rebag this product" (Laffey's version); or (Nash's version) that Schmidt said "he was told to rebag the grain-fed beef because it was too old". These statements are, we think, to be considered not merely narrative of past events, but demonstrative of an intention on the part of Laffey and Schmidt to carry out the rebagging operation in the future. In cross-examination Schmidt agreed that he had gone to Nash as his immediate superior to try to get him to talk Doube out of the rebagging; that is, to try to "stop it happening". If anything, this serves to confirm the inference that their intention was to go on with the rebagging unless they were able to persuade Nash to intercede with Doube to put a stop to it.

We therefore consider that the evidence of the Nash conversation was admissible to show the intention of Laffey and Schmidt expressed to Nash of carrying out the operation unless they were successful in having it countermanded; and that their intention was relevant to proof of a fact in issue, namely that they had been instructed to carry out that operation. It was a matter for the jury to decide whether these facts were capable of supporting the further inference that the instruction came from Doube. It is difficult to identify anyone else from whom it might have come. The statements to Nash were of a kind and were made in circumstances in which there was some objective assurance of their reliability. They were relatively contemporaneous with, or not far removed in time from, the event that prompted them; and there was a degree of spontaneity about them. Laffey remembered Schmidt telling Nash, "If we get busted doing this, we'll never pack another rib finger in the place". All the parties to the conversation gave evidence and were subjected to cross-examination at the trial. Although that does not itself provide a basis for admitting statements of this kind, it affords some justification for not excluding them as being unreliable. See Pollit v. The Queen [1992] HCA 35; (1992) 174 C.L.R. 558, 566-567, 602-603.

Count 17 was the charge that between 22 March 1992 and 29 October 1993 Doube had attempted to pervert the course of justice by seeking to influence, bribe, and by other means persuade Laffey and Schmidt to give false information to DPI and AQIS officers for the purpose of preventing a proper investigation of alleged breaches of the Export Control Act 1982 by the company and others. In the course of the trial counsel for Doube asked counsel for the prosecution to provide particulars of the charge. The precise terms in which the request was made do not appear from the record, but on 14 September 1994 Mr Hanson read into the trial record a series of eight items which he said were the particulars.

Briefly stated they are: (1) on specified dates between 22 March 1992 and August 1992 counselling and procuring Laffey and Schmidt to give a version of events which omitted the involvement of Doube; (2) in May 1992 paying for a trip to the USA for Schmidt; (3) in November 1992 engaging Laffey after his dismissal to travel to U.S.A. and paying him $2,000; (4) from 23 March 1992 to August 1992 paying Laffey and Schmidt their normal salary while both of them were under suspension; (5) from 4 July 1993 to 29 August 1993 paying Laffey and Schmidt $300 per week each; (6) on 9 July 1993 paying Laffey and Schmidt $5,000 each; (7) in about June, July and August 1993 offering to set Laffey and Schmidt up in business; and (8) in September 1993 paying for a trip to the Gold Coast for Laffey and Schmidt.

Once the particulars had been given, Mr Herbert Q.C. submitted that the charge was bad in law in the light of those particulars. The submission, which was overruled, was carried into the notice of appeal, where it appears in ground 5, in the form that the trial judge was wrong in law in permitting the Crown to particularise count 17 in such a way as to : (i) render that count prolix; (ii) change the standard of proof; and (iii) permit a guilty verdict, without satisfaction to the criminal standard, of any "facts" constituting the offence. In the appellant's written outline of argument in this Court, the ground was reduced to saying that, rather than particularising the offence charged, the effect of the particulars furnished by the Crown was to create 13 separate specific acts the proof of any one of which would justify conviction. In the course of submissions before us, the point was further refined by saying that it was not open to the Crown to charge a number of separate acts of different character as constituting a single offence under s.43 of the Crimes Act 1914. Doing so would, it was said, create the risk that different jurors might reach different conclusions about each of the eight particulars, with the consequence that there would not be unanimity on any item of particulars, but only on the overall question of guilt of the offence charged. The decision in S. v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266 was relied on to support this argument.

S. v. The Queen was, however, a case of a different kind. The accused there was charged with three separate counts of carnal knowledge of his young daughter each committed on dates unknown within specified periods of 12 months. The prosecution was unable to identify, by reference to dates or other distinguishing events, any of the acts of intercourse relied as having happened within any of the periods specified. At the trial the complainant gave evidence of specific acts of intercourse, but was unable to relate them to any of the three counts or periods in the indictment. She also testified to numerous further acts saying simply that intercourse had occurred "every couple of months for a year" before a particular date. The accused was convicted on all three counts, but the High Court by a majority quashed the convictions. Their Honours' reasons for doing so were not identical, but so far as relevant here, Dawson, Gaudron and McHugh JJ. all agreed that there was a risk that different individual jurors might have identified different occasions as constituting the relevant offences; or, more likely, convicted on the basis of a general disposition on the part of the accused to have carnal knowledge with his daughter. See S. [1989] HCA 66; (1989) 168 C.L.R. 266, 276, 283, 287-288; and see also R. v. Fisher (C.A. 439 of 1994).

The cases of S. v. The Queen and R. v. Fisher are distinguishable from this in that the accused in each of those cases was charged by separate counts with having committed distinct offences, albeit of the same kind, on different dates or occasions. Unless each act of intercourse or indecency constituting an offence was identified by some distinguishing feature, there was an obvious danger that individually the jurors might have reached differing conclusions about each of the occasions and acts charged while agreeing on the same verdict. The present case did not involve that risk for the reason that only one count of attempting to pervert the course of justice was charged against Doube, and the jury were required to and did return only one verdict in respect of it. The possibility admittedly exists, even if it seems most unlikely in the circumstances of this case, that some but not all jurors may not have been unanimous about one or more of the eight particulars furnished by the Crown. However, that is a state of affairs that is capable of ensuing in any case where particulars are given of circumstances said to constitute a single offence, as well as in other cases where circumstantial evidence consisting of a number of acts or facts are relied on to prove an offence beyond reasonable doubt. Shepherd v. The Queen (1990) 170 C.L.R. 572 determines how juries are expected to approach cases of the second kind. Cases where conspiracy is charged, and particulars are given of the overt acts constituting or manifesting the res gestae of the unlawful agreement, are illustrations of the first kind. See Tripodi v. The Queen [1961] HCA 22; (1961) 104 C.L.R. 1, 7.

The question remains whether it was legitimate for the prosecution to charge a single count of attempting to pervert the course of justice, identifying eight separate acts of the accused as particulars of it, or whether each of the eight acts so particularised constituted in substance separate and distinct offences that ought to have been charged as such. By s.43 of the Crimes Act, "any person who attempts, in any way ..., to pervert the course of justice in relation to the judicial power of the Commonwealth ..." is guilty of an offence. Speaking of a similar offence in England, the Court of Appeal in R. v. Machin [1980] 1 W.L.R. 763, 767, said that the word "attempt" in this context "does no more than describe a substantive offence which consists of conduct which has a tendency and is intended to pervert the course of justice". In referring to that statement with approval, McHugh J. in R. v. Rogerson [1992] HCA 25; (1992) 174 C.L.R. 268, 298, said, "it is the tendency of the conduct which is decisive, and it is irrelevant whether the conduct did or did not bring about a miscarriage of justice".

In the present case, therefore, the Crown was bound to aver and prove conduct having the tendency referred to. The conduct in a case of this kind is obviously capable of consisting of a single act, or a series of acts whether of similar or of a different nature. Indeed, in the context the word "conduct" seems to be used synonymously with behaviour, which itself commonly carries connotations of human activity occupying more than a single moment of time. Moreover, as was pointed out in the course of the appeal, it would often be difficult to determine whether acts following each other in quick succession in point of time constituted a single instance of conduct, or a series of separate acts, which if the appellant's submission is correct, would have to be charged as separate and distinct offences.

We do not consider this to be the correct view of it. The passage from the judgment of McHugh J. in Rogerson shows that it is the tendency that is decisive, and it is that tendency on the part of the accused that the prosecution has to establish as one of the primary elements of the offence. The tendency must no doubt be manifested by conduct, which may consist of one or more or a series of acts; but it does not follow that each of those acts amounts to a separate offence. The critical tendency must be directed to a particular result, which in this case was alleged to be the perverting of justice in relation to the judicial power of the Commonwealth. Moreover, the range of conduct that may be examined in determining whether the proscribed tendency is established is necessarily constricted by the aspect of judicial power that is sought to be perverted in a particular case. Here it is identified in count 17 as the perverting of an investigation of alleged breaches of the Export Control Act by the company and others. But, within the limits imposed by that particular, any and all forms or manifestations of conduct having or alleged to have the decisive tendency may be looked at in deciding whether a single offence has been committed.

The point raised is, as it happens, covered by the decision of the Court of Appeal in England in R. v. Machin [1980] 1 W.L.R. 763, where the appellant had engaged in a series of different acts designed to deter or defeat a prosecution against him for having an uninsured vehicle in a public place. In dismissing the appeal, the Court said that "the acts alleged did have a tendency to pervert the course of justice", even though the plan was not pursued to a final successful conclusion. Likewise it is clear from Rogerson [1992] HCA 25; (1992) 174 C.L.R. 268, that a series of different acts on different dates was relied on. In neither case was the present point taken; but the question had by then already arisen and been decided in R. v. Rowell [1978] 1 W.L.R. 132. There the appellant was convicted on an indictment charging an attempt to pervert the course of justice by falsely alleging that he had been robbed and threatened with a firearm by another. One of the grounds raised on appeal was that the indictment was bad for duplicity. In disposing of it, Ormrod L.J. delivering the judgment of the Court of Appeal said it was based on a false premise concerning the word "attempt" in the context of the offence, which was a substantive offence and not merely an attempt to commit it. His Lordship went on ([1978] 1 W.L.R. 132, 138):

"Consequently all the defendant's acts, his two false statements to the police accusing the man, described but not identified by name, of robbery, the placing of the toy pistol in the bus, and the arranging that it be found by Cronin, are all part of a course of conduct, between the dates alleged, which had a tendency and, as the jury must have found, was intended to pervert the course of justice ... No question of duplicity in the indictment therefore arises. The question is quite different from that which arose in R. v. Ballysingh (1953) 37 Cr.App.R. 28, and it would be quite artificial to regard each step taken by the defendant as a separate 'attempt'."

In Ballysingh a man was charged in a single count with stealing a series of different articles at different times and in different departments of the same store. Although the Court of Criminal Appeal accepted that there ought to have been separate counts in respect of each article, it dismissed the appeal in reliance on the proviso in view of the way in which the defence had been conducted at the trial. The case was not one in which the accused was, or could properly have been, charged with a course of conduct or tendency to bring about larceny. We add that we do not consider that the appellant gains any assistance here from that decision or from Johnson v. Miller [1937] HCA 77; (1937) 59 C.L.R. 467, where, as Mr Hanson pointed out, the offence under the relevant section of the South Australian Licensing Act was that of being "a licensee ... out of whose licensed premises a person is seen coming during any Sunday ...". Particulars of the charge in that case identified some 30 different times at which different persons were alleged to have been seen coming out of the premises on Sunday 29 November 1936. The High Court held (Latham C.J. dissenting) that an offence was constituted each time a person was seen leaving the premises, and a single complaint charging 30 such offences was contrary to the statutory requirement that every complaint should be for one matter of complaint only, and not for two or more matters.

We consider that the appellant Doube was properly charged in count 17 with, and convicted of, a single offence of attempting (or "tending") to pervert the course of justice, of which the particulars of the relevant element of that offence consisted of the eight acts identified by the prosecution at the trial, and the proof of that tendency consisted of the evidence in support of any one or more of those eight acts which the jury were persuaded beyond reasonable doubt to accept.

It follows from all of this that both appeals against conviction fail, and we turn now to the matter of the sentences.

The Director's appeal against Doube's sentences. The counts upon which Doube was convicted and the sentences imposed were:

* Count 14: on 21 March 1992 being knowingly concerned in the application of a false trade description to goods intended for export, s.15(1)(a)(i) Export Control Act 1982 and s.5(1) Crimes Act 1914: a fine of $9,900 with six months to pay, conviction entered;

* Count 15: on 22 March 1992 being knowingly concerned in the application of a false trade description, s.15(1)(a)(i) Export Control Act 1982 and s.5 Crimes Act 1914 on 22 March 1992: fine of $50, six months to pay, conviction entered;

* Count 16: between 16 and 21 March 1992 being knowingly concerned in Morex Meat Australia Pty. Ltd. having in its possession an official mark in contravention of the Prescribed Goods (General) Orders, s.14(a) Export Control Act 1982 and s.5 Crimes Act 1914: fine of $50, six months to pay, conviction entered;

* Count 17: between 22 March 1992 and 29 October 1993 attempting to pervert the course of justice, s.43 Crimes Act 1914: 3 years and 2 months imprisonment from 6 October 1994, not eligible for parole before 5 November 1994, conviction entered.

The maximum penalty for an offence under ss.14 and 15 of the Export Control Act 1982 as amended in 1991 for an individual is imprisonment for five years or a fine of $30,000 or both. The maximum penalty pursuant to s.43 of the Crimes Act 1914 for attempting to pervert the course of justice is imprisonment for five years.

Doube has served a period of one month imprisonment and has been released on parole pursuant to the recommendation made below. Prior to the committal and trial in this matter Laffey and Schmidt pleaded guilty to charges pursuant to ss.14 and 15 of the Export Control Act 1982 and were dealt with in the District Court by his Honour Judge Robin Q.C. They were sentenced to imprisonment for 18 months wholly suspended pursuant to s.21B of the Crimes Act and released upon entering into their own recognisances in the sum of $1,000 to be of good behaviour for two years in respect of the count of applying a false trade description which his Honour regarded as the more serious offence. On the second count of unlawfully applying an official stamp, he ordered them each to pay a fine of $1,000 with 3 months to pay. His Honour wholly suspended the term of imprisonment because of their co-operation and their continued co-operation by giving evidence for the prosecution in this trial. He indicated that he would have imposed a sentence of two years imprisonment in respect of count 1 but for their ready acknowledgment of their guilt.

Export Control Act offences. The Director bases his appeal against the leniency of the sentences imposed upon Doube for the breaches of the Export Control Act on two grounds, namely, that the sentences imposed do not reflect the seriousness of the offence and do not operate as a deterrent and, secondly, that there is an unacceptable disparity between the sentences imposed on Doube and the sentences imposed on Laffey and Schmidt.

The verdicts of the jury carry with them the implication that the offences were deliberate and carried out on Doube's instructions or with his consent. The Director has submitted that a fine simply does not reflect the distinction that should be drawn between technical breaches of the Act which may occur innocently of any attempt to mislead or defraud and those breaches which are as a result of a deliberate plan to contravene the Act.

Evidence of the importance of ensuring accuracy in trade description matters relating to exports was put before his Honour on sentence. Transgressions of the kind which occurred here were said to have the potential for the Korean authorities seriously to question the integrity of the Australian trade description system and this country's capacity to comply with their requirements, and could lead to more onerous and costly controls on meat imports being imposed. His Honour was told that Korea is the fourth largest importer of Australia beef and in 1993 the trade was worth about $200 million. Because of the serious trade repercussions which breaches of this kind might have, the Director has submitted that the imposition of a fine of $10,000 on a managing director of a large exporting company for calculated breaches of the Act does not constitute a proper deterrent. The evidence indicated that the company was experiencing a serious cash flow problem at the time the offences were committed in an industry in which, despite the large turnover, there was a very narrow profit margin. A $10,000 fine might be considered worth the financial risk involved by someone in Doube's position.

As to the question of disparity, Laffey and Schmidt were employees, as has been discussed above, and the jury verdict is consistent with them acting upon Doube's instructions or with his consent. He had a close involvement in the day to day running of the meat works and cannot be considered to be implicated only in a technical way. A sentence of a term of imprisonment even though wholly suspended upon two former employees who lost their employment because of these offences and who, no doubt, would have difficulty in obtaining similar employment in the meat industry again, bears no relationship to a fine of $10,000 imposed upon the managing director of the employer company who was found guilty of being knowingly concerned in those offences and who, on the evidence, which must have been accepted by the jury, directed or approved the conduct of those employees. There was no suggestion that the sentences imposed upon Laffey and Schmidt were excessive and indeed appear to be within a proper range. The decision whether the existence of a disparity calls for intervention is a matter which lies within the discretion of the appellate Court. Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606, per Gibbs C.J. at p.610.

Mr Herbert Q.C. who appeared for Doube on sentence submitted that the accepted rationale for parity of sentence which is to avoid a justifiable sense of grievance or to give the appearance that justice has been done, applies only in cases of an application for leave to appeal by an offender. The Director, he submitted, cannot have that sense of grievance in respect of a comparatively lenient sentence imposed on a co-offender the inadequacy of which he has appealed. That view would, we think, restrict the principle unnecessarily. There is nothing in the several judgments in Lowe v. The Queen which would so confine it. The sense of grievance will lie with the co-offender who has not appealed his sentence not from any want of diligence but because either he did not feel any sense that it was manifestly excessive or was not so advised. The community will not be conscious of the niceties of the appeal process and will perceive only the disparity and the appearance of unfairness.

The question then is whether on an appeal by the Director against Doube's sentence should be interfered with by this Court. The Director brings the appeal pursuant to s.669A of the Queensland Criminal Code. The reference to "the Attorney-General" in that section has been held to include a reference to the Commonwealth Attorney-General by virtue of s.68(2) of the Judiciary Act 1901. Peel v. The Queen (1971) 125 C.L.R. 447. Section 9(7) of the Director of Public Prosecutions Act 1983 provides that the Director may exercise such rights of appeal as are exercised by the Attorney-General of the Commonwealth in respect of a prosecution. The provisions of s.68(2) of the Judiciary Act 1901 and s.9(7) of the Director Of Public Prosecutions Act 1983 enable the Director to bring an appeal against sentence pursuant to s.669A of the Code, Rohde v. The Director of Public Prosecutions [1986] HCA 50; (1986) 161 C.L.R. 119. The principles to be applied on an appeal brought pursuant to s.669A have been considered recently by the Court in R. v. Melano C.A. No. 393 of 1994, following the decisions of the High Court in Everett v. The Queen and Phillips v. The Queen [1994] HCA 49; (1994) 68 A.L.J.R. 875. The Court held at p.7 of its reasons that:

"Unless the sentencing Judge has erred in principle either because an error is discernible or demonstrated by manifest inadequacy or inconsistency, the sentence he or she has imposed will be 'proper' ... variation by this Court will not be justified in such circumstances, unless, perhaps, in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate ... ."

The Court concluded that ordinarily an appeal under s.669A would not be allowed unless the sentence was outside the sound exercise of the sentencing Court's discretion. The Court recognised the long accepted proposition that an appeal against sentence by the Attorney-General cuts across concepts of criminal administration by putting in jeopardy for the second time freedom beyond the original sentence imposed. A matter of some concern here is that Doube has served the term imposed below in respect of the offence of perverting the course of justice and is now at liberty within the confines of his parole conditions. However, we are of the view that the seriousness of the offence to the national interest, the need for a strong deterrent and the clear disparity between the sentences imposed upon Laffey and Schmidt and that imposed on Doube, indicate that the Court ought to interfere. We think that a term of imprisonment comparable to that imposed on Laffey and Schmidt ought to have been imposed on Doube. Circumstances personal to him would dictate the period actually to be served. Mr Hanson proposed that should a term of imprisonment be substituted then the fines imposed below ought to be set aside. We would set aside the orders imposed below and in lieu thereof on each of counts 14, 15 and 16 sentence Doube to a term of imprisonment of two years, each sentence to be served concurrently. Because of his lack of previous convictions and otherwise good character if this offence stood alone we would recommend that the non-parole period be six months, but it is necessary to consider the non-parole period after dealing with the other offence, s.19AB Crimes Act 1914.

Perverting the Course of Justice. The head sentence of three years and two months imposed upon Doube for attempting to pervert the course of justice is not the subject of complaint by the Director, but it is said that there is impermissible disparity between the sentence imposed and the fixing of the non-parole period of one month. In Power v. The Queen [1974] HCA 26; (1974) 131 C.L.R. 623 it was pointed out that whilst the full term represents the period of imprisonment which the sentencing Judge considers the offence warrants, there may be a point during that period where it is appropriate to release the prisoner on parole having regard to his prospects of rehabilitation. That point is not determined by the sentencing Judge but will ultimately be determined by the relevant parole board. What is determined by the sentencing Judge is the minimum period during which, in the interests of justice, the prisoner should not be released at all having regard to the offence which he committed. See also Deakin v. The Queen [1984] HCA 31; (1984) 58 A.L.J.R. 367 and Lowe v. The Queen. In the latter case, Dawson J observed at p.625 that having regard to the purpose to be served by the fixing of a non-parole period, "it is obvious that it should not be made disproportionate to the full term", and see Gibbs C.J. at p.610. The circumstances here have already been set forth. Doube engaged in a sustained course of conduct from March 1992 to October 1993 to keep himself and the company distanced from the breaches of the Export Control Act by Laffey and Schmidt and other employees. The learned sentencing Judge recognised the seriousness of the offence and that it called for a custodial sentence but accepted counsel's submission that even a very short term of actual incarceration for one such as Doube constituted serious punishment and in recognition of his previous good conduct set the non-parole period of one month.

Mr Hanson provided the Court with a table of sentences for the offence of attempting to pervert the course of justice. They range over quite disparate circumstances and degrees of gravity, but a singular feature is that they all attracted terms of imprisonment to be actually served with the minimum non-parole period being one of six months imposed on an Attorney-General's appeal from the imposition of a fine. No case was referred to by counsel for the respondent in which a non-custodial sentence was imposed and allowed to stand. Many of the cases referred to the almost inevitable call for a custodial sentence for this offence. In Higgins v. The Queen C.C.A. No. 41 of 1990, Wallace J in the Court of Criminal Appeal of Western Australia at p.10 of his reasons, noted:

"... the offence of attempting to defeat the course of justice has consistently been treated, like perjury, as a crime that strikes at the very heart of the administration of justice and, as such, deserving of custodial punishment: R. v. Barba [1977] 2 N.S.W.L.R. 502; Dempsey v. R. (C.C.A. 32 of 1989) Library No. 7623."

In cases of this kind courts recognise the necessity for imposing a punishment which is to be seen as deterrent both personal to the offender and to the community at large. Mr Herbert submitted that the farther away from the actual investigation and subsequent court proceedings the conduct giving rise to the charge of attempting to pervert the course of justice is the less heinous the crime. There seems to be no basis in principle for such a submission but it will be a factor to be considered. There can be no doubt that there are many worse examples of the offence than the present case. There was no evidence that the payments to Laffey or Schmidt were expressed to be conditional upon their not inculpating Doube or the company to the investigators and there was no evidence of overt or even covert threats. The appropriate range can be gathered from several of the cases: R. v. Franklin No. 126 of 1994, a decision of the Court of Criminal Appeal of Victoria, was a case of some gravity where the offender sought to persuade a complainant who had alleged rape against him to change her evidence or withdraw the complaint by bribes and threats including sending a hearse and wreath to her home. On appeal a sentence of three years was reduced to two years with a non-parole period of 18 months. R. v. Wright C.C.A. No. 1 of 1991 was a decision of the Court of Criminal Appeal of Western Australia where the offender sought to intimidate a plaintiff who had brought a civil action for damages for assault against him to discontinue his action by employing another to injure him physically or to use explosives to blow up his property. The Court on an Attorney-General's appeal did not interfere with the sentence of three years and three months. The case of Del Piano (1989) 45 A.Crim.R. 199 is closer to the present. The respondent to an Attorney's appeal had received secret commissions in return for using his company position to influence the awarding of company contracts. On being charged he counselled the person paying the commission to him to destroy and falsify the evidence of the payments. He also forged certain documents. He had no previous convictions, was aged 40 years, was a self-employed solicitor and had made substantial restitution of the secret commissions. He faced disqualification as a solicitor and company director. He was sentenced to a period of imprisonment of 12 months which was not disturbed on appeal.

Given that the maximum sentence for this offence is five years, there is room for concluding that the sentence imposed of three years and two months was manifestly excessive but Doube has withdrawn his appeal against sentence and the Director seeks to leave it undisturbed. On the other hand, the imposition of a term of one month only to be served falls far short of an appropriate condemnation of the seriousness with which such an offence must be viewed and the need to deter. Had a term of imprisonment to be actually served been imposed with respect to the Export Control Act offences followed by a short period cumulative upon that sentence in respect of this offence that would have marked it as a separate offence which requires distinct and separate punishment. When the total criminality of Doube is considered and the punishment of a fine of $10,000 together with one month only to be served of a three year term of imprisonment and the absence of other factors favourable to the offender apart from his previous good conduct, the excessive leniency of the sentence is immediately apparent and outside the range of a proper sentencing discretion. Whilst it will often be appropriate to mark the seriousness of the offence of perverting the course of justice by making it cumulative upon other sentences imposed that will not always be so. In this case a real difficulty arises in taking that course because of the lengthy sentence imposed which would lead to an altogether manifestly excessive sentence when the total punishment is considered. What we propose here is to allow the appeal to the extent of fixing a non-parole period after that for the Export Control Act offences but otherwise making the sentence imposed concurrent with the other sentences imposed by this Court. The total period to be spent in custody for this offence and the Export Control Act offences prior to release on parole ought to be 9 months bearing in mind that one month in respect of this offence has already been served.

1. The Director's appeal against the sentences imposed upon the respondent Doube in respect of Counts 14, 15 and 16 allowed.

2. Set aside the sentence imposed below and in lieu thereof impose a sentence of imprisonment of two years.

3. The Director's appeal against the sentence imposed upon the respondent Doube in respect of Count 17 be allowed to the limited extent that the non-parole period is altered.

4. Set aside the order fixing the non-parole date of 5 November 1994 and in lieu thereof impose a non-parole period of nine months in respect of Counts 14, 15, 16 and 17.

Company's Appeal against Sentence. The counts upon which the company was convicted and the sentences imposed were:

* Counts 6 and 7: On 21 and 22 March 1992 applying a false description "packed on 12 March 1992" contrary to s.15(1)(a)(i) of the Export Control Act 1982 to beef intended for export: $74,900 with 12 months to pay and $50 with 12 months to pay respectively, convictions entered in default of payment levy and distress.

* Count 8: between 16 and 21 March 1992 having in its possession by Nathan Bugg an official mark in contravention of the Prescribed Goods (General) Orders: $50 with 12 months to pay, conviction entered, in default of payment levy and distress.

His Honour took the view which was not disputed that it was appropriate to regard the offences as a whole for the purpose of sentence. The maximum penalty for a company for each offence was $150,000, ss.10 and 11 of the Export Control Act (Amendment) Act 1991, s.4B Crimes Act 1914. About one-third of the meat had been re-bagged when the unlawful activity was detected. Had the project been successfully completed it would have involved some 56 metric tonnes of meat.

The evidence revealed that the shareholding in the company was held largely by a company named Canning Investments Pty. Ltd. and the shareholders in that company were Doube and his estranged wife. Mr Glynn on behalf of the company submitted that the fine imposed would fall heavily on the innocent shareholder. The Crimes Act makes it clear that that is not a matter to which the Court should have regard, s.16A. Only two comparable cases were produced dealing with breaches of the Export Control Act 1982 by a company. Both were summary hearings in the Magistrates Court in Brisbane. On 30 April 1985 Tancred Brothers Pty Ltd pleaded guilty to 43 breaches of s.15(1) of the Export Control Act. Forty-three cartons of meat were found to contain sheep meat when the order was for goat meat. The destination was to a country the members of which had a religious objection to eating sheep. The evidence suggested a difficulty in distinguishing goat and sheep carcasses and the mix up could occur easily unless particular care were taken. In the past the company had taken some steps to endeavour to prevent this occurring. The Magistrate concluded that the defendant company should have taken extra precautions to avoid a possible mix up. There was no suggestion that there was anything deliberate in the activity. The company was fined a total penalty of $30,000. In the other case, on 25 October 1989 in the Magistrates Court at Brisbane the defendant company was charged with 37 offences of applying false trade descriptions to meat packages labelled "beef" which contained some sheep. Fines of $15,000 were imposed. There was no suggestion that the offences occurred deliberately. The charges in each case were brought at a time when the maximum penalty for each offence dealt with summarily was $5,000.

Mr Glynn submitted that the nature of the breach was not such that a fine representing half the maximum possible fine should have been imposed on a company for a first offence and that it was accordingly manifestly excessive. The comparable cases to which reference has been made would appear to have related to unintentional breaches of the Act. That could not be said of the breaches of the Export Control Act by this company. His Honour below had regard to the financial position of the company when fixing the fine. The evidence revealed that in the relevant tax year in 1992 the company had a revenue of $164 million with a profit of $407,000 before tax. There is no doubt that on those figures the fine imposed was a substantial one. Mr Hanson submitted both below and here that that level of fine reflects the deliberate nature of the offence and the need for deterrence of a significant kind in order to protect the national interest in its external trading relations. Although the fine is not a light one we think that the learned sentencing Judge took into account all appropriate factors including that the company had no previous convictions and that he imposed a fine which was not outside the permissible range. We would therefore refuse the application to appeal against sentence.

1. THE APPEALS OF BOTH APPELLANTS AGAINST THEIR CONVICTIONS ARE DISMISSED.

2. THE APPLICATION BY MOREX MEAT AUSTRALIA PTY. LTD. FOR LEAVE TO APPEAL AGAINST SENTENCE IS DISMISSED.

3. THE APPEAL BY THE DIRECTOR OF PUBLIC PROSECUTIONS AGAINST THE SENTENCES IMPOSED ON MAURICE REX DOUBE IS ALLOWED BY SETTING ASIDE THE SENTENCES IMPOSED IN RESPECT OF COUNTS 14, 15 AND 16, AND IN LIEU THEREOF:

(A) IMPOSING IN RESPECT OF EACH OF THOSE COUNTS A SENTENCE OF IMPRISONMENT FOR TWO YEARS;

(B) FIXING A NON-PAROLE DATE OF NINE MONTHS IN RESPECT OF THE SENTENCES ON EACH OF THOSE THREE COUNTS;

(C) ENTERING A CONVICTION IN THE CASE OF EACH OF THOSE COUNTS -

AND ALSO BY VARYING THE SENTENCE IMPOSED IN RESPECT OF COUNT 17 TO INCREASE THE NON-PAROLE PERIOD IN RESPECT OF THAT SENTENCE TO NINE MONTHS.

IT IS FURTHER DIRECTED THAT THE PERIOD OF IMPRISONMENT ALREADY SERVED UNDER THE SENTENCE APPEALED AGAINST IS TO BE COUNTED AS IMPRISONMENT SERVED UNDER THESE SENTENCES.

CATCHWORDS CRIMINAL LAW - Application of false trading description and possession of an official marking device contrary to the provisions of the Export Control Act 1982 (Cth) - Whether trial Judge's summing up lacked balance - Trueman (1913) Cr.App.R. 20 - Dominguez v. R. (1985) 63 A.L.R. 181 - Whether person's own statements of intention to do an act are admissible evidence of the existence of a plan to do that act - United States v. Annunziato [1961] USCA2 490; 293 F. 2d 373 (1961) Attempting to pervert the course of justice contrary to s.43 Crimes Act 1914 (Cth).

SENTENCE - Appeal by Commonwealth Director of Public Prosecutions - Whether sentence reflected seriousness of the offence and acted as a deterrent - Whether there was disparity between sentences - Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606.

Counsel: D.F. Jackson Q.C., with him S.E. Herbert Q.C., for the Appellant Doube in the appeal against conviction.

S.E. Herbert Q.C. for Doube in the Director's appeal against sentence.

R.V. Hanson Q.C., with him P.J. Flanagon, for the Crown.

Solicitors: Quinn Ryan Scattini for Morex Meats Australia Pty. Ltd. and Doube.

Commonwealth Director of Public Prosecutions for the Crown.