Court of Appeal (Qld)|2009-03-13|Before: Muir JA and Chesterman JJA and Fryberg J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Muir JA and Chesterman JJA and Fryberg J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR
INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL
DISMISSED –
where appellant was convicted of obtaining credit in breach of s 269 of the
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE ORINSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEALDISMISSED –where appellant was convicted of obtaining credit in breach of s 269 of theBankruptcy Act 1966 (Cth) – whether the jury could have beensatisfied beyond reasonable doubt that the appellant did not inform the personwhohe obtained credit from that he was an undischarged bankrupt – whetherappellant reasonably believed that he had done soCRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE– PARTICULAR CIRCUMSTANCE NOT AMOUNTING TO MISCARRIAGE– OTHERIRREGULARITIES – where there was a joinder of multiple charges on the oneindictment – whether the joindergave rise to a miscarriage ofjusticeCRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE– JOINDER OF PERSONS OR COUNTS – where joinderof multiple counts onone indictment – whether trial judge adequately warned jury against
propensity reasoning
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
– PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
– OTHER
IRREGULARITIES – where Crown failed to obtain and tender original cheque
which was subject of forgery charge
– where facsimile copy was tendered in
lieu – whether use of copy gave rise to a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
– PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
–
MISDIRECTION OR NON-DIRECTION – where trial judge misdirected jury on the
mistake of fact test by using the Criminal Code 1899 (Qld) rather than
the Criminal Code Act 1995 (Cth) – where proviso exists in
s 668E(1A) to find that no substantial miscarriage of justice occurred
– whether
proviso applied in this case
Bankruptcy Act 1966
(Cth), s 269(1)(a), s 269(2), 304A
Criminal Code 1899 (Qld), s
24, s 408C(1), 488(1)(a), s 567(2), s 597A, s 668E(1A)
Criminal Code Act 1995 (Cth), s 3.1, s 4.1(1), s 4.1(2), s 5.1, s
5.6(1), s 5.6(2), s 6.1, s 6.2, s 9.1(1), s 9.1(2)
Evidence Act
1977 (Qld), s 116
Alford v Magee (1952) 85 CLR 437, [1952] HCA 3,
considered
Allied Pastoral Holdings P/L v Federal Commissioner of
Taxation (1983) 44 ALR 607
[1983] 1 NSWLR 1, considered
Browne
v Dunn (1893) 6 R 67 (HL), applied
Commercial Union Assurance
Company of Australia Ltd v Ferrcom P/L (1991) 22 NSWLR 389,
cited
Darkan v The Queen (2006) 227 CLR 373
[2006] HCA 34,
cited
Dyers v The Queen [2002] HCA 45
(2002) 210 CLR 285 at 292
[2002] HCA
45, cited
Edwards v The Queen (1993) 178 CLR 193
[1993] HCA
63, applied
Fabre v Arenales (1992) 27 NSWLR 437,
considered
Fingleton v The Queen (2005) 227 CLR 166
[2005] HCA
34, cited
Hobbs v Tinling [1929] 2 KB 1,
distinguished
Jones v Dunkel (1959) 101 CLR 298
[1959] HCA 8,
applied
MWJ v The Queen (2005) 80 ALJR 329
[2005] HCA 74,
cited
Phillips v The Queen (2006) 225 CLR 303
[2006] HCA 4,
cited
R v Birks (1990) 19 NSWLR 677, considered
R
v Collins, ex parte Attorney-General [1996] 1 Qd R 631
[1994] QCA
467, considered
R v Cranston [1988] 1 Qd R 159,
considered
R v Dunrobin [2008] QCA
116, cited
R v Foley [2000] 1 Qd R 290
[1998] QCA
225, cited
R v Kray [1970] 1 QB 125, applied
R
v Lucas [1981] 1 QB 720, cited
R v Manunta [1989] SASC 1628
(1990) 54 SASR
17, considered
R v MAP [2006] QCA
220, cited
R v Owen [1951] VicLawRp 57
[1951] VLR 393
[1951] ALR 852,
distinguished
R v Robinson [2007] QCA
099, cited
R v Wurch (1932) 58 CCC 204,
considered
R v Zorad (1990) 19 NSWLR 91,
considered
Weiss v The Queen (2005) 224 CLR 300
[2005] HCA 81,
applied
West v Government Insurance Office of NSW (1981) 148
CLR 62
[1981] HCA 38, considered
Judgment (384 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE - APPEAL DISMISSED - where appellant was convicted of obtaining credit in breach of s 269 of the Bankruptcy Act1966 (Cth) - whether the jury could have been satisfied beyond reasonable doubt that the appellant did not inform the person who he obtained credit from that he was an undischarged bankrupt - whether appellant reasonably believed that he had done so
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCE NOT AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES - where there was a joinder of multiple charges on the one indictment - whether the joinder gave rise to a miscarriage of justice
[3]
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - JOINDER OF PERSONS OR COUNTS - where joinder of multiple counts on one indictment - whether trial judge adequately warned jury against propensity reasoning
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES - where Crown failed to obtain and tender original cheque which was subject of forgery charge - where facsimile copy was tendered in lieu - whether use of copy gave rise to a miscarriage of justice
[5]
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - where trial judge misdirected jury on the mistake of fact test by using the Criminal Code 1899 (Qld) rather than the Criminal Code Act 1995 (Cth) - where proviso exists in s 668E(1A) to find that no substantial miscarriage of justice occurred - whether proviso applied in this case
Commonwealth Director of Public Prosecutions for the respondent
[38]
[1] MUIR JA: I am in general agreement with the reasons of Chesterman JA and gratefully adopt his statement and analysis of the facts. I agree with the order he proposes. However, as I arrive at the same conclusions in relation to count 1 by a slightly different route, it is necessary for me to give additional reasons of my own.
[39]
[2] What is known as the Rule in Jones v Dunkel[1] is summarised in Cross on Evidence Australian edition[2] as follows:
[40]
"First, that unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may, not must, in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted the party's case."
[41]
[3] The circumstances in which the principle or rule can be applied and the limits to its application were explored by Mahoney JA, with whose reasons the other members of the Court agreed, in Fabre v Arenales:[3]
[42]
"The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness. He may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him. The reason why the witness is not called may have no relevant relationship to the fact in issue: it may be related to, for example, the fact that the party simply does not know what the witness will say. A party is not, under pain of a detrimental inference, required to call a witness 'blind'."
[43]
[4] The Rule extends to a failure by a litigant to question a friendly witness who can reasonably be expected to have knowledge of the existence or non-existence of "the vital facts in issue".[4]
[44]
[5] As the following passage from the reasons of Stephen, Mason, Aickin and Wilson JJ in West v Government Insurance Office of New South Wales[5] makes plain, any inference able to be drawn from the absence of a witness a party could have been expected to call, cannot fill a gap in the evidence:
[45]
"In Jones v. Dunkel[1959] HCA 8; (1959) 101 CLR 298, 312 per Menzies J., speaking of what should, in such circumstances, be a trial judge's directions to a jury, said that three things should be made clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.'"
[46]
[6] There is, however, little scope for the application of the Jones v Dunkel principle in criminal proceedings. In Dyers v The Queen,[6] Gaudron and Hayne JJ pointed out that the reasoning in Jones v Dunkel "depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so."[7] Their Honours went on to say:
[47]
"The conclusion that an accused could shed light on the subject-matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary they were overruled."[8]
[48]
[7] Their Honours went on to say that the reasoning in RPS and Azzopardi as to why Jones v Dunkel was generally inapplicable where the accused failed to give evidence, applied "with equal force to the accused calling other persons to give evidence." The reason for this being that "it cannot be said that it would be expected that the accused would call others to give evidence." It was also said that any conclusion about who would be expected to call a person to give evidence must take into account the obligation on the prosecution to call "all available material witnesses unless there is some good reason not to do so."[9]
[49]
[8] Kirby J, relevantly agreed with the reasons of Gaudron and Hayne JJ and also with those of Callinan J.[10] Callinan J said:[11]
[50]
"The principles stated in Jones v Dunkel presuppose that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial. This is not an exceptional case of the kind referred to by their Honours in RPS. There is no feature of it that takes it outside the general rule."
[51]
[9] The rule in Browne v Dunn[12] was explained as follows by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation:[13]
[52]
"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1893) 6 R 67."
[53]
[10] The Rule applies in criminal cases,[14] but as Gleeson CJ, with whose reasons McInierery J agreed, said in R v Birks:[15]
[54]
"There are some obvious difficulties concerning the operation of the rule in criminal trials. The notion of fairness, whilst it has relevance to criminal as well as to civil proceedings, may have a somewhat different practical content in a criminal trial."
[55]
[11] Dealing with the circumstances in which breach of the Rule may lead to the drawing of inferences adverse to the party in breach, Gleeson CJ said:[16]
[56]
"It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, eg, R v Robinson [1977] Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution."
[57]
[12] Later in his reasons, Gleeson CJ adopted the following views expressed by King CJ in R v Manunta:[17]
[58]
"It seems to me that the failure of counsel to cross-examine the police officers on the topic left open the inference that the challenge to the notes was an afterthought on the part of the appellant and was simply a lie told in cross-examination because he thought it would serve his interests. The cogency of such an inference might be open to question. It is possible that the idea that the police were referring to notes other than those made at the time might not have occurred either to the appellant or to his legal advisers. The appellant may have realised it only when the notes were placed in his hands during cross-examination. No such explanation, however, was elicited in re-examination. I think that the point was open for the consideration of the jury; its weight was for them to determine.
[59]
I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing-up. It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds."
[60]
[13] In MWJ v The Queen,[18] Gummow, Kirby and Callinan JJ said of the application of the Rule:
[61]
"[38] . . . The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.
[62]
[39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non- compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination.
[63]
[41] . . . The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country."[19]
[64]
[14] It does not appear to me that any adverse inference can or should be drawn from the appellant's failure to call Mrs Glatzel as a witness in his case. It is not known if Mrs Glatzel was considered by the appellant to be hostile to him or if the appellant knew the evidence Mrs Glatzel would give if called as a witness.
[65]
[15] Mr O'Donnell was called as a witness and much of his evidence was adverse to the appellant's interests. The appellant explained his counsel's failure to put various matters to Mr O'Donnell by saying, in effect, that as Mr O'Donnell was consistently untruthful, "Why would we waste our time asking him any more questions ...". He also claimed to have kept up a flow of instructions to his counsel which were not always followed.
[66]
[16] Considerations such as this illustrate why it is necessary to approach the drawing of adverse inferences against an accused in a criminal trial by reference to the rule in Browne v Dunn with great circumspection. Additionally, there are the usual difficulties in determining the reason or reasons for non-compliance with the Rule. Even the most proficient of advocates make occasional mistakes. And, perhaps more significantly, there is often inadequate opportunity for counsel and solicitors for that matter to obtain, review and question an accused's instructions.
[67]
[17] It is certainly very curious that the telephone conversation the appellant claims to have had with Mr Lee whilst, according to him, Mrs Glatzel and Mr O'Donnell were seated at the breakfast table, wasn't put to Mr O'Donnell. The asserted conversation wasn't put even though the appellant's counsel, having finished his cross-examination immediately before the luncheon adjournment on 27 March 2008, sought and was granted permission on resumption of proceedings to put a number of matters to Mr O'Donnell in order to comply with the rule in Browne v Dunn.
[68]
[18] The following exchange occurred in the course of the further cross-examination:
[69]
"Now, Mr Navarolli will say that the decision to borrow the money from Crown & Gleeson was a decision by you and Christine Glatzel?-- Incorrect.
[70]
He will say that on the Monday, that the decision was - he will say the decision was taken, that the loan had been identified on the Saturday by him; I put that to you. But he will say that on the Monday you saw him and said that the loan had been approved subject to documents being provided?-- Don't recall that at all.
[71]
He says that you told him that Warren Lee of Crown & Gleeson head office had spoken to you?-- Don't recall that.
[72]
And you told him that you were preparing the paperwork and sending them to the head office?-- Once again I don't recall that."
[73]
[19] Earlier in the cross-examination the appellant's counsel had put that there had been a meeting between Mr O'Donnell, the Glatzels and the Navarollis at Mr O'Donnell's unit on the Saturday before the loan documentation was signed in which "the finances in the restaurant were discussed." Mr O'Donnell responded, "That's possible". He was then asked, "And it's during that meeting that Mr Navarolli seeings (sic) the advertisement in the Cairns Post about Crown & Gleeson, isn't it?" The response was, "I'm not aware of that sir".
[74]
"MR O'MEARA: Certainly. You're not aware of the advertisement about the Cairns Post?-- No, I'm not.
[75]
So it's not - so you're not aware at that meeting of Mr Navarolli saying that there was an opportunity to get a loan from Crown & Gleeson?-- No.
[76]
No. Is it your evidence that the first you know of Crown & Gleeson is when you turn up at the restaurant for the documents to be signed?-- No, Mr Navarolli had discussed Crown & Gleeson in his office a day, two days prior to the signing of the documents."
[77]
[21] At no time was it suggested to the witness that there was a breakfast meeting attended by the appellant, Mr O'Donnell and the Glatzels during which the appellant telephoned Mr Lee and informed him of his bankruptcy before discussing a prospective loan.
[78]
[22] A reading of the cross-examination of Mr O'Donnell shows an awareness by the appellant's counsel of the necessity to put his client's case to Mr O'Donnell and it appears that he attempted to do so in a comprehensive way. It is therefore unlikely that counsel had been informed by the appellant of the alleged breakfast telephone conversation with Mr Lee. Had he been informed, it is highly probable that the contents of the alleged conversation would have been put to Mr O'Donnell. What was put was little more than background for the conversation which emerged in the appellant's evidence-in-chief. Similarly, if counsel had been instructed, as the appellant later claimed in evidence-in-chief, that the appellant had signed the Crown & Gleeson loan documents under duress, it is highly unlikely that this would not have been put to Mr O'Donnell.
[79]
[23] I consider it most doubtful that, in the circumstances I have outlined, counsel's failure to raise these matters with Mr O'Donnell are explicable by inadvertence or mistake on counsel's part. I doubt also that the failure was the product of incomplete instructions but that possibility is more difficult to rule out.
[80]
[24] The consequences of a breach of the rule in Browne v Dunn depend on the circumstances in which the breach occurred. For example, if counsel for a party breached the Rule through inadvertence and the matter omitted to be raised with a witness was of substance, normally the appropriate course would be to recall the witness and give him or her the opportunity of addressing the matter.
[81]
[25] In this case, it was or ought to have been apparent, once the evidence of the breakfast conversation was given, that Mr Lee could be an important if not critical witness. The same may be said of Mrs Glatzel. On the face of things, the appropriate course was for the prosecutor to ask for the matter to be stood down with a view to his enquiring into the availability and likely evidence of these potential witnesses. The prosecutor however elected to proceed without seeking to re-open the prosecution case. It is not suggested that Mr Lee and Mrs Glatzel were unavailable. In those circumstances it seems to me that what little scope there was for drawing adverse inferences as a result of a breach of either or both Rules was further diminished.
[82]
[26] But no matter how the rules in Browne v Dunn and Jones v Dunkel are applied, their application does not establish the converse of the appellant's evidence that he told Mr Lee of his bankruptcy. That gap in the evidence, if it can be filled, must be filled by other means.
[83]
[27] On the appellant's version of events in evidence-in-chief, the borrower was to be Arkzel Pty Ltd, a company of which Mrs Glatzel was a director. The loan was for the purpose of the restaurant business in which the appellant had no equity. He was not to be a borrower but, on his evidence he volunteered to Mr Lee in his first conversation with him on behalf of Mrs Glatzel, that he had been declared bankrupt in 2002. That does not make sense. There was no point in imparting the information and it should have been apparent that to reveal to a prospective lender that the person negotiating the loan who had a role in the conduct of the business for which the loan was required was a bankrupt, may have been harmful to the prospects of the application. His asserted intervention in contacting the prospective lender makes even less sense when considered in the light of his evidence to the effect that he signed the loan documentation under duress and had been pressured into making his interest in a boat and a car security for the loan.
[84]
[28] If the appellant's evidence can be believed, he was not even participating in a conversation between Mr O'Donnell and the Glatzels about the obtaining of a loan when he chanced upon an advertisement by Crown & Gleeson in the newspaper. The telephone being next to him, he picked it up and "just made the call". I agree with Chesterman JA's conclusion that the evidence of the appellant in relation to this aspect of the matter "reeks of mendacity" and is "irrational".
[85]
[29] There is evidence which strongly supports the conclusion that Mr Lee was not informed of the appellant's bankruptcy. The unchallenged evidence is that Mrs Paronella was never informed. If Mr Lee had been informed and if he had been proceeding on the basis that the borrower would be the appellant, it is highly unlikely that he would have proceeded with the transaction or that he would not have communicated this information to Mrs Paronella. The way in which the loan documentation was made out plainly reflects the substance of the instructions made by the appellant to Mr Lee and Mrs Paronella. The fact that the appellant was giving security for the loan also demonstrates, if further proof be needed, that he was the borrower. As is usually the case, the instruments by which a transaction is implemented are surer guides to the true nature, purpose and effect of the transaction than what is said about it by one or both of the parties.
[86]
[30] Perhaps the most telling reason why it should be accepted that the appellant did not inform any relevant person of his bankruptcy is that he was anxious to obtain the loan and quite prepared to go to dishonest lengths in order to obtain it. He would have been well aware that to inform a prospective lender of his bankruptcy would be to ensure the rejection of his application. That was not something which he would have contemplated.
[87]
[31] The evidence reveals the appellant to be a shrewd individual who would have been most unlikely to have signed loan documentation showing him as a borrower in the belief that he was signing on behalf of a corporation as manager of its restaurant business. Although this Court has not enjoyed the advantage of seeing and hearing the witnesses, a perusal of the transcript leaves one in little doubt that the appellant's evidence cannot be accepted unless satisfactorily corroborated.
[88]
[32] These matters and those additionally referred to by Chesterman JA point overwhelmingly to the conclusion that neither Mr Lee nor Mrs Paronella were informed of the appellant's bankruptcy.
[89]
[33] Having regard to "the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record"[20] I am satisfied that the appellant's guilt in relation to count 1 has been proved beyond reasonable doubt.
[90]
[34] CHESTERMAN JA: On 25 March 2008 the appellant was arraigned in the District Court at Brisbane on an indictment containing four counts:
[91]
(1) being an undischarged bankrupt obtaining credit from Prendale Pty Ltd to the extent of $3,972.97 or more on or about 25 November 2003 at Port Douglas without informing it that he was an undischarged bankrupt.
[92]
(2) forging a cheque drawn on an account in the name of W P O'Donnell with attempt to defraud on or about 8 July 2004 at Port Douglas.
[93]
(3) dishonestly obtaining property namely a sum of money more than $5,000 from Alan Milostic on or about 8 July 2004 at Port Douglas.
[94]
(4) forging a document, namely a letter, purporting to be from Crown and Gleeson Securities Cairns with attempt to defraud between 8 July and 2 September 2004 at Port Douglas.
[95]
[35] After a nine day trial the appellant was, on 4 April 2008, convicted on all four counts. On 14 July 2008 the appellant was sentenced to two years' imprisonment on the first count to be released after 12 months on a recognisance in the sum of $4,000 to be of good behaviour for four years. On each of the other three counts he was sentenced to two years' imprisonment with an order that he be released on parole after serving 12 months. Pre-sentence custody of 101 days was declared to be time already served under the sentences. The sentences were to be served concurrently.
(a) ...obtain credit to the extent of $3,000 or more from a person without informing that person that he ... is an undischarged bankrupt;
[98]
(2) This section has effect subject to section 304A.
[99]
[37] Section 304A allows the monetary amounts specified throughout the sections of the Bankruptcy Act to be increased in accordance with inflation. It accounts for the difference between the amount fixed by s 269 and the amount specified in the indictment.
[100]
[38] The second and fourth charges on the indictment were brought pursuant to s 488(1)(a) of the Criminal Code (Qld) ('the Qld Code'). The third charge was brought pursuant to s 408C(1) of the Qld Code.
[101]
[39] The appellant has appealed against his convictions. On the hearing of the appeal he was given leave to amend his notice of appeal by substituting the following grounds:
[102]
The conviction on count 1 is unsafe because it was not open for a reasonable jury to be satisfied beyond reasonable doubt that the appellant did not inform the person from whom he obtained credit that he was an undischarged bankrupt or, alternatively, that he did not believe that he had done so.
[103]
The joinder on the indictment of count 1 with counts 2, 3 and 4 gave rise to a miscarriage of justice.
[104]
The learned trial judge did not adequately warn the jury against impermissible propensity reasoning arising from the joinder on the indictment of count 1 with counts 2, 3 and 4.
[105]
The failure of the Crown to obtain and tender in evidence the original cheque, the subject of count 2 of forgery, gave rise to a miscarriage of justice.
[106]
The learned trial judge misdirected the jury on the issue of mistake of fact in that his Honour directed the jury on the test under the Criminal Code (Qld) rather than the Criminal Code Act 1995 (Cth).'
[107]
[40] The appellant became bankrupt on 2 August 2002 and remained an undischarged bankrupt until at least 4 April 2005. He was a qualified chef. In 2003 he moved from Perth to Port Douglas to take up employment in a restaurant called Quattro which occupied premises in the local golf clubhouse. Between the earliest and latest dates in the indictment the appellant called himself John Storey. He said it was because he cohabited with a woman whose surname was Storey. She had two children who went by that name. The appellant and Ms Storey had their own child. To avoid confusion, he explained, he adopted the name Storey which he also gave to his child. He had an unconvincing explanation of trying unsuccessfully to change his name by deed poll.
[108]
[41] The appellant was friendly with one Warren O'Donnell who also lived with his family in Perth. After the appellant moved to Port Douglas he contacted Mr O'Donnell and suggested he join him at Quattro in Port Douglas. After making some preliminary inquiries Mr O'Donnell, too, made the move. He was initially an employee in the restaurant but later (the time is not clear) became a business partner in the restaurant business with the appellant. Later still Mr O'Donnell moved to Cairns and established another restaurant, also called Quattro. The evidence is not clear but appears to establish that the appellant was an owner, or part owner, of Quattro. He was reluctant to admit his ownership, presumably because of his bankruptcy and the potential risk of facing other charges brought pursuant to s 269. The appellant preferred to describe himself as manager or executive chef of the restaurant but his conduct in dealing with the restaurant's property, and his own, and his attempt to obtain money to pay the restaurant's debts point firmly to the conclusion of the appellant's ownership. The appellant's conduct will be described presently.
[109]
[42] Mr O'Donnell said in his evidence that he did not know that the appellant was a bankrupt, nor that his real name was Navarolli.
[110]
[43] On or about 25 November 2003 the appellant borrowed $33,008 from Prendale Pty Ltd ('Prendale'). The loan is the subject of count 1, it being alleged that the appellant did not disclose his bankruptcy to Mrs Wendy Paronella or her husband who were Prendale's only directors and shareholders.
[111]
[44] The appellant and Mr O'Donnell jointly owned a Sea Raider half cabin cruiser outboard motor boat ('the boat'). The loan from Prendale was secured by a bill of sale over chattels used in the restaurant and some additional items of property. One of them was the boat.
[112]
[45] On 8 July 2004 the appellant who was experiencing financial difficulty, approached Mr O'Donnell who had moved to Cairns, and asked him for a cheque for $5,000 to pay a local tradesman's invoice. Mr O'Donnell wrote out a cheque on his business account but refused to sign it, fearing there was insufficient monies in the account to pay it. Mr O'Donnell was the only person authorised to sign cheques on the account. The appellant took the cheque, forged Mr O'Donnell's signature on it, and obtained the proceeds. A photocopy of the cheque, not the original, was tendered in evidence. This fact is the basis for ground 3 in the amended notice of appeal.
[113]
[46] At about the same time the appellant approached Alan Milostic and asked him for a short-term loan to assist with the financial problem the appellant was experiencing at his restaurant. Mr Milostic agreed to lend the appellant $20,000. By way of security the appellant agreed that he would assign the boat to Mr Milostic, who would reassign it on the repayment of the loan. The appellant had represented to Mr Milostic that the boat was unencumbered, though in fact it was mortgaged to Prendale. On 9 July 2004 Mr Milostic ascertained that the boat was mortgaged. He had already advanced the money. The appellant, when asked about the mortgage, repeated the assurance that the boat was not mortgaged.
[114]
[47] Some weeks later he gave a letter to Mr Milostic. It was undated and addressed to Mr John Storey. It read:
[115]
'With regards to letter of demand ... I have informed the office of fair trading ... to the Removal of listing of bill of sale. As you are aware the finance for the goods did not proceed and the bill of sale should not have been listed.
[116]
It is with our deepest apology that this was done and I will in contact with the office of fair trading that this is done A s a p.
[117]
There followed an indecipherable signature which was not Mrs Paronella's. The letter was a forgery and was the subject of count 4.
[118]
[48] Before turning to consider the grounds of appeal it is necessary to describe in more detail the business operations of Prendale. As mentioned its only directors and shareholders were Mr and Mrs Paronella. On 2 December 2003 they, in their capacity as shareholders of Prendale, resolved that the name of the company be changed to Crown & Gleeson Securities Cairns Pty Ltd. Nine months later, on 2 September 2004, the company registered 'Crown & Gleeson Securities Cairns' as a business name.
[119]
[49] The nature of the business which Prendale (as I shall continue to call it) carried on was short-term, bridging, business and investment lending. It did so as a franchisee from a company located on the Gold Coast, Crown & Gleeson Securities Pty Ltd ('Crown Securities').
[120]
[50] Money lending was a new venture for the Paronellas. They bought a franchise from Crown Securities and attended a course at the Gold Coast to learn about the business and its administration. They intended to trade under the name 'Crown & Gleeson Securities Cairns' and to utilise their existing company, changing its name as I described.
[121]
[51] The lending business was structured so that initial inquiries from prospective borrowers were directed to Crown Securities' office at the Gold Coast. Telephone calls to the advertised number were answered at head office. An initial appraisement of an application was made by an employee at the Gold Coast who determined whether the application was for a business or investment loan and whether the security offered was adequate. If those criteria were satisfied the information was passed to a franchisee, no doubt in the borrower's locality, for the franchisee to make contact with the applicant.
[122]
[52] The appellant was Prendale's first customer. He must have rung Crown Securities about a loan. The fact that he wished to borrow money and his contact details were passed to Mrs Paronella by one Warren Lee who was described by Mrs Paronella as the 'franchisor'. He was a director and shareholder (he may have been the only one) of Crown Securities and ran the training course which the Paronellas attended.
[123]
[53] Following that intimation Mr and Mrs Paronella went to see the appellant at his house in Port Douglas on 23 or 24 November 2003. The principal reason for their visit was to inspect the items of property to be taken as security for the loan, to ascertain its existence and value, and to photograph it so as to have proof of identity. Mrs Paronella was told by the appellant that he was the lessee of the Quattro Restaurant and that the boat was his property and was available as security for the loan. He described Mr O'Donnell as his business partner. The decision whether or not to lend was Prendale's and it decided to lend $30,000 to the appellant in part on the strength of the security offered which included the boat. Mrs Paronella testified that the appellant identified himself to her in their conversations as John Storey and did not reveal that his name was Navarolli, nor that he was an undischarged bankrupt. She would not have made the loan, she said, had she known his status.
[124]
[54] Mrs Paronella was not challenged in cross-examination on her assertion that the appellant had not told her he was an undischarged bankrupt.
[125]
[55] The advance was made on 25 November. Prendale had not by then changed its name. Mrs Paronella obtained the necessary documents to record the loan, and some advice, from employees at the franchisor's office on the Gold Coast.
[126]
[56] Because its internet banking arrangements had not been established, Prendale remitted the amount of the advance to Crown Securities which advanced the money to the appellant by way of loan on behalf of Prendale.
[127]
[57] The loan documentation reflects the state of disorganisation described by Mrs Paronella at the inception of Prendale's money lending. The documents are all dated 25 November 2003, six days prior to Prendale's change of name. The face page of the bill of sale carries the name 'Crown & Gleeson Securities Cairns Pty Ltd'. A schedule to it identified 'John Storey' as the grantor and Crown & Gleeson Securities Cairns Pty Ltd as the lender. The bill of sale operated as a mortgage, not a hypothecation. The grantor, the appellant, assigned the chattels described in the schedule to the bill of sale to Prendale who promised to reassign them when the loan and interest were repaid in full. The legal title in the boat passed to Prendale. The appellant was left with an equity of redemption. One of the items of property described in the schedule was the boat.
[128]
[58] There was a deed of loan which also had the 'Crown & Gleeson Securities Cairns Pty Ltd.' It identified Prendale as the lender. The amount of the loan is shown to be $33,308 lent for the purposes of 'cash flow'. The borrower is identified as John Storey. Another document which also carried the 'Crown & Gleeson Securities Cairns Pty Ltd' name was a guarantee. This document identifies 'Prendale trading as Crown & Gleeson Securities Cairns' as the lender and John Storey as the guarantor. This document would appear to be completely unnecessary and, indeed, otiose. John Storey was the lender and principal debtor. A guarantee by him of his own primary obligation is of doubtful effect.
[129]
[59] By another document signed by him on 25 November 2003 the appellant authorised the National Australia Bank at Mossman to make monthly periodic payments of $3,330 from his account to Prendale's agent by way of repayment of the loan and interest.
[130]
[60] The appellant signed the bill of sale, deed of loan, guarantee, and bank authority. The signatures are in each case a scribble and bear some similarity to the signature on the forged cheque, the subject of count 2.
[131]
[61] The appellant gave evidence. He said that one Saturday morning he was having breakfast at Mr O'Donnell's house. Mr O'Donnell had recently become a part owner of the restaurant. The appellant himself was employed as executive chef. A part owner, or previous part owner, Mrs Christine Glatzel, was also present. There had been instability in the ownership of Quattro: one owner had sold out, the new owner had abandoned his interest after a brief involvement and 'the decision had to be made whether we were going to continue running the business or sell out.' While Mr O'Donnell and Mrs Glatzel were having breakfast, the appellant noticed an advertisement for business loans in a newspaper. The telephone number was Crown Securities', but the advertisement did not reveal that. When he rang the telephone was answered by Warren Lee who asked the appellant for his name. The appellant replied that his 'married name was John Storey (and his) maiden name was John Navarolli.' He also said that he personally was not applying for the loan because he 'was declared bankrupt in 2002 and that it wasn't due to expire until 2005.'
[132]
[62] It is against this background that the grounds of appeal must be considered. The first ground is that the conviction on count 1 is unsafe because the jury could not reasonably have been satisfied that the appellant did not inform Prendale of his bankruptcy, or that he did not believe that he had told Prendale, by revealing his bankruptcy to Mr Lee.
[133]
[63] The point, shortly put, is that Mr Lee was not called as a witness for the prosecution and it was established from Mrs Paronella's evidence that there must have been some contact between Mr Lee and the appellant as the appellant said. This follows from the fact that it was Mr Lee who provided Mrs Paronella with the information that the appellant wished to borrow the money, and gave her the appellant's name, or at least the one he then went by, and his address and telephone number.
[134]
[64] The appellant submits that, in the absence of evidence from Lee controverting his evidence, the Crown had not proved an element of the offence; that he had not informed Prendale of his bankruptcy.
[135]
[65] The appellant relied upon the authority of R v Owen [1951] VicLawRp 57; (1951) VLR 393 at 403. Owen was an undischarged bankrupt who obtained credit by way of an overdraft from the National Bank. The overdraft existed between 1947 and 1950. The manager of the branch who granted the overdraft testified that Owen had not told him of his bankruptcy. However, the evidence revealed that on three occasions during the currency of the overdraft a relieving manager was at the branch and that an accountant was at the branch throughout the period and that any of the relieving managers or the accountant had authority to extend the overdraft or receive information about his bankruptcy. None of those were called to testify. There was no evidence that those officers had been instructed that a bank regulation prohibited the granting of overdraft accommodation to bankrupts, nor was it proved that such officers had an obligation to report to the manager on his return the fact that an overdraft had been extended to a bankrupt, if that information came to their attention. In these circumstances Sholl J held that the Crown had not discharged the onus of proving non-communication of the required information.
[136]
[66] Before dealing with this argument it is convenient to address ground 4 which is that the trial judge misdirected the jury on the question of mistake by reference to the Qld Code and not the Criminal Code Act 1995 (Cth) ('Commonwealth Code').
[137]
[67] The question of mistake would have been relevant if Mr Lee were not an officer of Prendale nor its agent for the purposes of receiving information about the status of borrowers; and if the appellant told him of his bankruptcy. In those circumstances the appellant would not have informed the lender, the credit provider, Prendale, that he was bankrupt but he might have been entitled to believe that by informing Mr Lee he had informed Prendale.
[138]
[68] The terms of the franchise agreement between Crown Securities and Prendale were not proved. It was not established whether or not Mr Lee was in fact an officer or agent of Prendale for the purpose of making loans or receiving communications from prospective borrowers. The evidence tends to suggest he may have been such an agent. The business was structured so that initial inquiries were directed to Mr Lee, who, after an initial examination put the inquirer in contact with a local franchisee. In the circumstances someone like the appellant who rang to inquire about a loan and spoke to Mr Lee would have good grounds for believing that the communication with Mr Lee was a communication with the franchisee/lender even if it were not.
[139]
[69] Section 269 of the Bankruptcy Act is, of course, a law of the Commonwealth which imposes criminal responsibility. Chapter 2 of the Commonwealth Code codifies 'the general principles of criminal responsibility under laws of the Commonwealth.' Section 3.1 provides that an offence consists of physical elements and fault elements. Fault elements are by s 5.1 intention, knowledge, recklessness or negligence, each of which is separately defined. Section 5.6 provides that:
[140]
'(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
[141]
(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.'
[142]
Section 6.1 and s 6.2 respectively provide that if a Commonwealth law which creates an offence provides that it is one of strict or absolute liability there are no fault elements for any of the physical elements of the offence created by the law.
[143]
[70] For those unfamiliar with them, these concepts are not straightforward in their application. It is clear that s 269 does not specify a fault element but nor does it provide that it creates an offence of strict or absolute liability so that s 5.6 of the Commonwealth Code makes either intention or recklessness the appropriate fault element. It was common ground before the trial judge and on appeal that recklessness was the appropriate fault element on the basis that s 5.6(2) applied. For that to be so the physical element of the offence must consist of a circumstance or result. One can see that obtaining credit is a result, but one can also see that not informing the credit provider of the bankruptcy is an omission. Omissions fall within the definition of conduct found in s 4.1(2) of the Commonwealth Code. By s 4.1(1) conduct is a physical element of an offence. Section 5.6(1) might therefore apply to s 269. But one can see why recklessness is the more appropriate fault element: it is easy to imagine cases in which a bankrupt failed to disclose his status when applying for credit through inadvertence rather than deceit. The mischief which s 269 aims at would not be properly addressed if an offence were committed only on those occasions when the information was intentionally withheld.
[144]
[71] It is not necessary to consider the matter further. The present point does not depend upon whether intention or recklessness was the appropriate fault element. Section 9.1 of the Commonwealth Code provides:
[145]
'Mistake or ignorance of fact (fault elements other than negligence)
[146]
(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
[147]
(a) at the time of the conduct ... the person is under a mistaken belief about ... facts; and
[148]
(b) the existence of that mistaken belief ... negates any fault element applying to that physical element.
[149]
(2) In determining whether a person was under a mistaken belief about ... facts, the tribunal of fact may consider whether the mistaken belief ... was reasonable in the circumstances.'
[150]
[72] The trial judge said this in his summing up:
[151]
'Our law is that a person who does something or omits to do something under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for that act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
[152]
A mere mistake is not enough. Mistaken belief must have been both honest and reasonable. An honest belief is one which is genuinely held by the defendant and you have heard what he has told you in that regard. We will come to that evidence about his contact with Crown & Gleeson Securities and saying in that conversation he had with Mr Lee that he was a bankrupt ... and the defence case is that he honestly and reasonably believed that he had informed the creditor who he thought was the creditor of the fact that he was a bankrupt. And therefore he complied with the section. Therefore he is not guilty of the offence.
[153]
The reasonable belief is one that in the circumstances in which the defendant found himself, a reasonable person in that position could have also held, so reasonable belief is one that in the circumstances in which the defendant found himself a reasonable person in the defendant's position could have also held.'
[154]
[73] That direction is predicated upon s 24 of the Qld Code being the applicable law with respect to mistake of fact exonerating an accused from criminal responsibility. The first part of the direction is taken, almost word for word, from s 24. The relevant section was, of course, s 9.1 of the Commonwealth Code. The two sections differ though the underlying concept is very similar. Section 9.1 does not expressly require the mistaken belief to be honest though of course it must be. A dishonest belief is a contradiction in terms. More importantly it is not an express requirement of s 9.1 that the mistaken belief be reasonable though the reasonableness of what was believed can be taken into account in determining whether an accused actually had a mistaken belief. Still a jury applying s 9.1 might consider that an accused had a mistaken belief though the belief was unreasonable. An unreasonable belief would not afford a defence under s 24.
[155]
[74] Accordingly the trial judge misdirected the jury on an important question of law.
[156]
[75] There is another complaint about the summing up which did not find expression in a separate ground of appeal but which should be noticed.
[157]
[76] As the evidence fell out, unless the jury were convinced beyond reasonable doubt that the appellant had not told Mr Lee of his bankruptcy, it had to consider whether the accused might have mistakenly believed that the revelation of bankruptcy to Mr Lee was a revelation to Prendale. The jury had to understand that if Mr Lee was not an officer of Prendale or its agent for the purpose of receiving communications of the type under discussion the appellant might nevertheless have believed he was and the operation of s 9.1 would have negated recklessness in the appellant's dealings with Prendale. This analysis would then call for a rehearsal of the evidence relevant to Mr Lee's relationship with Crown Securities and Prendale for the jury's benefit.
[158]
[77] The trial judge did not attempt anything like this exercise. His Honour's fleeting reference to the appellant's 'contact with Crown & Gleeson Securities and saying in that conversation ... with Mr Lee that he was a bankrupt' and the 'defence case ... that he honestly and reasonably believed that he had informed the creditor or who he thought was the creditor of the fact that he was a bankrupt' is all that was said by the judge on the application of the law as to mistaken belief and its effect on criminal responsibility.
[159]
[78] In the course of a lengthy summing up the trial judge referred to the evidence given by the principal witnesses and he read the appellant's evidence of his conversation with Mr Lee. The trial judge also summarised the address of counsel for the appellant (who did not appear on the appeal) and said that:
[160]
'He reminded you that, with regard to the first charge ... that he spoke to Warren Lee and he dealt with Warren Lee of Crown & Gleeson in that initial contact. He also said that you must be satisfied that Prendale ... was the credit provider and the prosecution must negative that the accused honestly and reasonably believed that he was not dealing with Crown & Gleeson, and if he establishes that he had an honest and reasonable belief that he was dealing with Crown & Gleeson then he must ... be acquitted of the charge.
[161]
... he took you through what the Crown prosecutor had said in his opening about the defendant contacting Crown & Gleeson in the first place... He reminded you that the issue so far as charge 1 is concerned is surrounded with confusion and when you look at the documents you think you are dealing with Crown & Gleeson Securities. ... it is the brand. It is on the documents. ... the telephone number you are directed to head office. Head office deals with it.
[162]
He asked you to consider what evidence is there of his dealing with Prendale Pty Ltd. So far as he is concerned, he is dealing with Crown & Gleeson Securities. ... If you had those documents would you be dealing with Crown & Gleeson Securities or Prendale. Is it a reasonable belief on the defendant's behalf?
[163]
He reminded you that you can't find Prendale without there being any link to Crown & Gleeson Securities. You look at all of those documents. You make your own minds up there. He reminded you that the transaction happened quickly, that Prendale Pty Ltd are fast money specialists. ...
[164]
... . Mrs Paronella agreed the letter of offer came from head office, rushed transaction. ... He submitted ... it was reasonable ... for the defendant to believe that he was dealing with Crown & Gleeson Securities...
[165]
He reminded you that the accused says that he told Mr Lee ... . It is not surprising that there is confusion. It was reasonable for the defendant to be confused. He reminded you about the registration and the business name not taking place until 1st of 2nd of December '03.
[166]
He asked you to look at the documents carefully and it was reasonable for the accused to consider that he was dealing with Crown & Gleeson Securities ... and that he told Warren Lee of the fact that he was a bankrupt.'
[167]
[79] This is, with respect, totally confusing. Trial counsel appeared to have little understanding of the principles of the law of corporations or of contracts. The appellant's trial counsel seems to have made much of the fact that on the loan documents one finds reference to Prendale Pty Ltd, Crown & Gleeson Securities Cairns Pty Ltd and Crown & Gleeson Securities Pty Ltd. He appears to have argued that the loan was advanced by Crown Securities, or Crown Gleeson Securities Cairns Pty Ltd, or that it was reasonable for the appellant to believe he was dealing with Crown Securities. The prosecution seems to have run this part of the case on the basis that the loan came from Prendale and that its directors were not informed by the appellant of his bankruptcy. It seems to have been asserted that any communication between the appellant and Mr Lee and/or Crown Securities was irrelevant because Prendale and Crown Securities were separate companies.
[168]
[80] The facts were quite straightforward and the trial judge should have explained them to the jury. Prendale was about to become Crown & Gleeson Securities Cairns Pty Ltd when the loan was made. It had not then changed its name so that the lender was, in truth, Prendale Pty Ltd, but it was a franchisee from Crown Securities and the appellant's business came to it because of its contract with the franchisor, Crown Securities. The inconsistency in nomenclature was no more than a consequence of the transaction occurring before the change of name had been formally accomplished, the speed of the transaction and Mrs Paronella's unfamiliarity with the documentation. It was not possible, as the prosecution attempted, to separate Prendale from Crown Securities. The summing up, if not the addresses, had to come to grips with the question of Mr Lee's agency and the possibility of a mistaken belief about it. It did not do so.
[169]
[81] In R v Zorad (1990) 19 NSWLR 91 the Court of Criminal Appeal said at 105:
[170]
'A summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: ... . It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically ... . The idea of a summing up is to present for the jury the issues of fact which they have to determine.'
'[38] ... None of the three parts of the summing-up which deal or purport to deal with mistake attempts to provide a factual context for the judge's directions. At least as a general proposition " ... the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case".'
[173]
[83] The quotation comes from Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466. In Fingleton v R [2005] HCA 34; (2005) 227 CLR 166 at 196, McHugh J referred to s 620 of the Qld Code which provides that 'it is the duty of the court to instruct the jury as to the law applicable to the case ...' and said:
[174]
'The key term is "instruct". That requires the Court to identify the real issues in the case, the facts that are relevant to those issues and an explanation as to how the law applies to those facts.'
[175]
'[70] ... (The trial judge) then turned to the elements of the charges. He dealt ... with the elements of indecent assault ... and the elements of rape ... . He dealt with these matters as pure issues of law without relating them to the evidence in the case or placing the facts in the relevant context. He then dealt with mistake of fact in respect of sexual offences. Save to the extent already described, he again did so without referring to the evidence.
[176]
[72] That ... meant that the summing up failed to comply with the requirements identified in the cases cited by Muir JA. Those requirements would have been satisfied had the judge referred to the evidence and the submissions of counsel in the context of each instruction on the law. ... The essence of the judicial task is to rearrange the evidence from the serial, chronological ... form in which it was given into a categorised form which places it in the context of the relevant law.'
[177]
[85] The trial judge did not comply with these requirements. The issue of mistake was left, at the conclusion of the summing up and the addresses of counsel, in a state of hopeless confusion. To make the confusion worse the trial judge instructed the jury by reference to the wrong legal test, s 24 of the Qld Code, not s 9.1 of the Commonwealth Code.
[178]
[86] Notwithstanding these criticisms, counsel for the respondent submitted that the appeal against the conviction on count 1 should be dismissed because the appellant's evidence of his revelation of bankruptcy to Mr Lee could not be accepted by any tribunal of fact: it was, literally, incredible.
[179]
[87] If this contention be made out it would be an appropriate case for the application of the proviso found in s 668E(1A) which provides that:
[180]
'However, the Court may, notwithstanding that it is of the opinion that the point ... raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.'
[181]
[88] Given the evidence of the franchise and the connection in fact between Crown Securities and Prendale, a statement to Mr Lee that the appellant was bankrupt was either a statement to Prendale or the circumstances gave rise to a wholly reasonable belief that the statement had been made to Prendale. The proviso can only apply if the evidence excludes the communication as being a reasonable possibility.
[182]
[89] In the present context the proviso can have no application unless the evidence that the appellant spoke to Mr Lee in the terms recounted must be rejected. Putting it in positive terms, the evidence must establish that the appellant did not reveal his bankruptcy to Mr Lee.
[183]
[90] The principles governing the operation of the proviso were explained in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. At 314 the Court said:
[184]
'The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical jury) would or might do. Rather, in applying the proviso, the task is to decide whether a "substantial miscarriage of justice has actually occurred".'
[185]
'That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence ... and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record ..., the accused was proved beyond reasonable doubt to be guilty of the offence ... . ... But recognising that there will be cases where the proviso does not apply does not exonerate the Appellate Court from examining the record for itself.
[186]
It is neither right nor useful to attempt to lay down absolute rules ... beyond the three fundamental propositions ... . (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.).
[187]
[91] It is necessary to consider some more of the evidence and to start with the first relevant reference to Mr Lee. It occurred in the cross-examination of Mrs Paronella. It must be remembered that until the appellant's case was opened and the appellant testified, there was no intimation of the assertion that the appellant had told Mr Lee that he was an undischarged bankrupt. Mrs Paronella was asked:
[188]
'Do you know a Mr Lee? - Mr Lee? I don't believe so.
[189]
Mr Warren Lee? - Warren Lee, yes he is our franchisor. He began the franchise ... .
[190]
He is the person you ... did the training with. Did you have any discussions with Mr Lee about this matter? - Only in the initial stages when he ran through the details of the loan application. We probably would have discussed the pros and cons of it because I was very inexperienced and double-checking with Warren certain things I needed to know.
[191]
He was involved in it in the sense that ...? - Advice, yes.'
[192]
[92] It is noteworthy that the cross-examiner did not ask Mrs Paronella directly whether Mr Lee had told her that the appellant, who was applying for a loan, was bankrupt. One would think that would be one of the fairly obvious 'cons' of the transaction which a lender, particularly an inexperienced one, would be concerned about. The penultimate answer given by Mrs Paronella appeared to give rise to an appropriate occasion to put that direct question. It was not asked there, or elsewhere, in the cross-examination. Had the question been put and an affirmative answer given the case against the appellant on count 1 would have disappeared. A negative answer would not have diminished the appellant's case which was of a belief that communication to Mr Lee was communication to the lender. Putting the question however might have alerted the prosecution to the importance of Mr Lee as a potential Crown witness. Indeed it appears to have been the appellant's tactic to prevent that discovery. In re-examination the prosecutor asked Mrs Paronella some questions about Mr Lee. She was asked who he was and she replied that he had established the Crown Securities franchise. She was then asked if he was a director and shareholder of the franchisor and she answered yes. When asked what was 'his function in a transaction like this' there was an objection:
[193]
'Well ... I'm not sure that that's - if that's re-examination, your Honour.'
[194]
The point of the objection presumably was that the question did not arise out of cross-examination. It did in fact, and Mr Lee's involvement in the transaction had a particular relevance, as counsel for the appellant knew, but counsel for the prosecution did not. The objection was improper but served its purpose. The trial judge asked the prosecutor whether his questions about Mr Lee had some relevance, to which he frankly replied that he did not know, and indicated he would ask no further questions.
[195]
'... I was approached by Peppers to open up a restaurant. I informed Peppers ... I couldn't ... because ... financially I wasn't in a position to but, more importantly, I had filed for bankruptcy. They then asked me to find somebody in town who could open a restaurant or if they knew somebody they would put me in touch with them and they would open up the restaurant ... . Peppers approached Klaus and Christine Gatzel, they then took the lease ... of the restaurant. They took the licence ... . I was ... in March ... 2003 ... only employed as the executive chef. In June, July of 2003, Christine said that (they) had decided ... to retire and ... wanted to sell. They approached Paul ... Irving to take on their control of the restaurant. Paul decided then, and without my knowledge, that on taking control of the restaurant my name was put on the trading name of the business and only the trading name. I had no control of the licence, the lease, bank accounts or anything. After a few weeks of arguing ... Paul decided to pull out. That is when Warren O'Donnell invested ... $30,000 and became a shareholder in Arksel which was the lease holder and licence holder ... for the restaurant. My name, unbeknownst for me for a few months later, was left on the trading name of the business. Leading up to the loan, on the Saturday morning we were having breakfast at Warren's house. A decision had to be made because we had a lot of forward bookings for weddings and functions ... whether we were going to continue running the business or sell out. As we were all sitting there having breakfast ... Warren and Christine were going through the books and I saw an ad in the paper for business loans from Crown and Gleeson. ... I rang ... and a gentleman by the name of Warren Lee answered ... . I told him who I was. He said, "We only do business loans." I said, "I realise that." He said, "Is the business in your name?" At that stage I wasn't aware the trading name was in my name. I said, "No, the business name is not in my name. It is in the name of Christine Glatzel, under the name of Arksel." He said, "What is your name". I told him my married name was John Storey, my maiden name was John Navarolli and I also informed him there and then that I wasn't applying for the loan and I couldn't be seen to be applying for the loan because I was declared bankrupt in 2002 and that wasn't due to expire until 2005.'
[196]
[94] I interpolate to mention that a company search tendered in evidence showed that a company, Arkzel Pty Ltd, was incorporated in February 1997 with two shareholders, Klaus and Christine Glatzel, who were directors of the company until August 2006.
[197]
[95] The appellant explained that Mr Lee had said he needed 'a brief outline' of what property could be offered as security, and told the appellant to make a written list. He said he would ring back in half an hour. He did so and the appellant read to him the contents of the list. Mr Lee said that he would 'think about it' and ring back on Monday morning.
[198]
[96] The appellant was asked if Mr Lee had said anything in response to his intimation that he was an undischarged bankrupt. The appellant said that Mr Lee replied:
[199]
'Mate, at 120 per cent per year interest I don't give a shit who borrows the money. ... We are lending the money for business. I will do a search on Arksel and make sure they have the lease there. If they have I need permission from them to take the loan over the equipment.'
[200]
'He wasn't lending the money to me, he was lending the money to Arksel via Quattro Port Douglas' assets.'
[201]
'... that he had representatives or some staff in Cairns. He never told me ... he had a franchise up there. He just said he had some staff up there and he had an office up there himself. ... He just said ... if he approved the loan and got all the documents prepared he would hand it over to staff to sign it off.'
[202]
[97] He testified that on the following Monday he was in the restaurant when he received a call from Mr Lee who said that the 'loan was approved subject to documents being verified by his staff in Cairns.' About an hour later, the appellant said, he received another telephone call from a woman who identified herself as Wendy Paronella. She described herself as 'a representative of Crown & Gleeson Securities in Brisbane.'
[203]
[98] It was not put to Mrs Paronella that she had identified herself as a representative of Crown Securities in Brisbane. Apart from that omission, it is extremely unlikely that Mrs Paronella would have described her role falsely.
[204]
[99] The appellant also said that after Mr and Mrs Paronella had come to his house and the restaurant and taken photographs of the chattels to be given as security for the loan he was about to return to work in the kitchen when Mr O'Donnell said to him:
[205]
'... you need to sign some paperwork. ... you are the manager of the restaurant you need to sign the documents.'
[206]
The appellant said he protested and asked why he should sign the loan documents. According to the appellant Mr O'Donnell replied:
[207]
'You are the manager, it is a business loan and Christine and me discussed it and you need to sign it.'
[208]
'... was basically given no choice and ... just signed it.'
[209]
[100] Some observations should be made about the appellant's evidence. It is apparent from it that he told Mr Lee in the presence of Christine Glatzel and Warren O'Donnell that he was bankrupt. There were therefore two witnesses to the making of the statement. One of them, Mr O'Donnell, testified at the trial for the prosecution. As I mentioned, Mr O'Donnell had denied ever knowing of the appellant's bankruptcy. He was not asked in cross-examination about the conversation nor was it put to him that he had heard the appellant admit his bankruptcy. The appellant gave evidence and called two witnesses. Mrs Glatzel was not one of them.
[210]
[101] The appellant said this in cross-examination:
[211]
'... the first contact that I made with Warren O'Donnell before he moved up there, he said, "What's your involvement in the business?", I said, "I'm managing it, with a share that I'm going to take in 2005", and he said, "You can't hold a business, you're a bankrupt". ... Warren O'Donnell knew I was bankrupt. He was an officer in my church, ... a senior officer in my church, both the church and him were informed, while we were in Brisbane, that we filed for bankruptcy, and the church has got a record that I was bankrupt in 2002, and he was the most senior officer in my church in Perth. So, he was informed both in writing and verbally by myself, and the church, that I was bankrupt; that he knew I was bankrupt.'
[212]
[102] Mr O'Donnell was not asked about these assertions when cross-examined by the appellant's counsel. It will be noted that Mr O'Donnell was said to have been informed in writing of the appellant's bankruptcy. That fact was not put to Mr O'Donnell and no attempt appears to have been made to obtain the writing to put to O'Donnell or to tender.
[213]
[103] It should also be noticed that it was not put to Mr O'Donnell that he had insisted or importuned the appellant to sign the loan document in place of an officer of Arkzel Pty Ltd.
[214]
[104] The appellant's version of his conversation with Mr Lee is nonsensical. When asked if he owned the business which was to borrow the money the appellant said he did not, and explained that it was owned by Arkzel Pty Ltd. He then said that he was not applying for the loan, and could not do so, because of his bankruptcy. The appellant's bankruptcy was irrelevant if the borrower was Arkzel Pty Ltd or Mr and Mrs Glatzel.
[215]
[105] The appellant's evidence did not begin to come to grips with the fact that he was the borrower, not Arkzel Pty Ltd. It was he who signed the documents, all of which describe him personally as the borrower, as well as an authority to debit his own bank account with repayment of the loan. It is obvious that he did apply for the loan and to suggest that he told Mr Lee that he was not and could not be the borrower is nothing short of absurd.
[216]
[106] There are other difficulties. In addition to the restaurant's chattels being given as security for the loan the appellant's own motor vehicle and the boat were assigned. It is beyond belief that the appellant would mortgage his own property to secure a loan to someone else, just as it is beyond belief that he would have signed the loan documents when he was an employee of the borrowing company and its directors were on hand and could themselves have signed. The explanation that he was compelled to sign is unconvincing on its face and rendered unworthy of any credence by the failure to put the proposition to Mr O'Donnell.
[217]
[107] The appellant's evidence leaves completely unexplained the extraordinary circumstance that Mr Lee organised the preparation of loan documents showing the appellant to be the borrower when he had been told the appellant could not borrow because he was a bankrupt and that the borrower was Arkzel Pty Ltd.
[218]
[108] These points did not escape the prosecutor's attention. He asked the appellant:
[219]
'Do you agree that you obtained a loan from ... Prendale? - No, I don't agree ... . Sorry, this is coming back to me. As far as I'm aware, I was borrowing money from Crown & Gleeson. ... as far as I knew I was signing documents on behalf of the restaurant as the manager. I was not aware that I was actually, personally, borrowing the money, or responsible for it.
[220]
So who did you think was responsible for the - ? - Well I was told by Warren Lee that it was a business loan. He needed a signature ... . ... It wasn't until the time the documents arrived that Warren ... O'Donnell told me that I had to sign ... .
[221]
Who do you think was responsible for the repayment of the loan? - The business ... Arkzel.
[222]
So can you point out where Arkzel's name appears on the documents? - As I said ... I was told it was a business loan. ... how can I explain this. ... I have been a chef all my life. I've never done administration. I was told it was a business loan and I was signing it as the manager of the business ... .'
[223]
'Mr Navarolli, seeing that Arkzel would have borrowed the money from Crown & Gleeson ... why was it necessary for you to disclose to Warren Lee that you were a bankrupt? - I disclosed it at the start of the conversation ... and during the conversation when I said to him about Arkzel, he said, "Are you a director of Arkzel?", and my reply was no, as a discharged bankrupt I can't be a director.
[224]
Why did you have to mention it at all, because you would not have been the borrower? - Why did I mention it at all?
[225]
Yes? - Because he asked me at the outset what my role was and why I wasn't a partner and why I wasn't a director.
[226]
The directors of Arkzel and Warren O'Donnell ... were the people that were discussing the obtaining of a loan; is that correct? - That's correct.
[227]
Why did you call Crown & Gleeson? - Because I was reading the morning paper and the ad was there.
[228]
Why didn't you ask one of them to call Crown & Gleeson? - They were halfway through their breakfast and they were eating. I wasn't having breakfast and I was just reading the paper. The phone was next to me and I just made the call.
[229]
On your version of events it actually had nothing to do with you? -As the manager of the restaurant and my responsibility to my staff, keeping them employed and keeping the business going ... yes, it had a lot to do with me, it was my responsibility. ... also - Pepper's approached me initially and wanted me to set up a restaurant and I gave them my word as executive chef I would do everything in my power to uphold Pepper's name.'
[230]
[110] Not only does this reek of mendacity, it is irrational. A man inquires about borrowing money for a business he does not own in the presence of the owners and tells a lender why he is not qualified to borrow, or to speak on behalf of the business, and in the process conveys information about his personal status to the lender likely to discourage it from making an advance.
[231]
[111] Enough has been said to show that no credence whatsoever could be attached to the appellant's evidence. Critical parts emerged for the first time in his evidence in chief. They were clearly inventions, resort to which was had on the spur of the moment. Any tribunal of fact acting reasonably must have rejected the evidence, and been satisfied that the appellant had lied about his conversation with Mr Lee. This Court performing the review required by the proviso, should do so.
[232]
[112] A question remains: does the conclusion that the appellant lied about revealing his bankruptcy to Mr Lee mean that there is evidence that he did not tell Mr Lee of the bankruptcy; or does the rejection of his evidence mean that there is no evidence on the point, so as to leave a lacuna which, as in Owen, means that the Crown did not prove that the appellant had not informed Crown Securities or Prendale of his bankruptcy?
[233]
[113] Professor Heydon (as his Honour then was) wrote in Can Lies Corroborate? 1973 89 LQR 552:
[234]
'The principle is that a lie on some material issue by a party indicates a consciousness that if he tells the truth he will lose, and ... "matters which otherwise might be ambiguous or colourless are rendered suspicious and corroborative by reason of the false denial." The rules based on that principle are that the statement must be material, attributable to a sense of guilt and clearly and independently proved to be a lie.'
[235]
'The rules about lies are simply the most commonly applied parts of a much wider doctrine that any lying, fraud, fabrication or suppression of evidence, or interference with the normal course of justice by a party is evidence against him as an implied admission by conduct of the weakness of his case.'
[236]
By contrast lies on matters which go to credit only are not evidence of the contrary of what is asserted. The case usually relied upon for this proposition is Hobbs v Tinling [1929] 2 KB 1 at 21 where Scrutton LJ said:
[237]
'If by cross-examination to credit you prove that a man's oath cannot be relied on, and he has sworn that he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; there is simply no evidence on the subject.'
[238]
Professor Heydon (89 LQR 552) regards these cases as lies 'on trivial matters'.
[239]
[114] The circumstances in which a lie may operate as an implied admission of fact contrary to what the lie asserted were described by Deane, Dawson and Gaudron JJ in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 208-9. Their Honours said:
[240]
'At one time it was thought that only a lie told out of court could amount to an implied admission ..., but the distinction is not logically supportable and is no longer drawn ... . When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt" ... .
[241]
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him ... . ... It must be a lie which an innocent person would not tell. ... the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. ... It is to say that the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him" ... .'
[242]
[115] One of the preconditions to the admissibility of a lie for the purpose of proving the contrary of what was asserted, or an admission against interest which would implicate the liar in the commission of an offence is that the untruthfulness of the relevant statement be clearly established. This may occur, of course, in a number of ways. According to Byrne and Heydon Cross on Evidence Australian edition (para 15220):
[243]
'A statement can be proved to be a lie on a particular point without direct evidence of the truth on that point. The inference that it is a lie may be drawn from its inherent improbability.'
[244]
A case cited as authority is R v Wurch (1932) 58 CCC 204. Wurch was charged with shop-breaking with intent to commit an indictable offence. The evidence against him came from an accomplice and the discovery by police of a number of safe-breaking articles in his room about which Wurch had, according to the head note, 'a fantastic explanation.' The Manitoba Court of Appeal held that the possession of the implements was not corroboration of the accomplice's testimony but the lies about their possession was corroboration, and the nature of the explanation itself proved that it was a lie.
[245]
'He admitted ownership of the hammer and 2 chisels but did not know anything about the battery found under the bed ... and it was a surprise to him to find in his trunk, when he opened it for the policeman, the revolver and the black-jack of which he also knew nothing. As to the dynamite and detonators, his explanation is as follows: When visiting his brother ... a few days before ... as he was going out ... to see a neighbour who used dynamite in drilling wells, his brother asked him to procure for him a couple of sticks of the explosive, which he did. He put the dynamite in his pocket, but so completely forgot about it that he did not give it to the brother on his return to the latter's home, went to church on Sunday still carrying it in his pocket and, still forgetting, brought it to his room in Winnipeg where he put it in his trunk. That four sticks, and not a couple, were found ... of course makes his story still more absurd and unbelievable.'
[246]
'The appellant lied ... in his attempt to explain how he came in possession of the dynamite and detonators. It is true that the mere possession of these articles does not of itself connect them sufficiently with the crime; but the connection is established by his lying about them.'
[247]
[117] The fact that the appellant lied when giving evidence rather than out of Court makes no difference to the use to which the lies can be put. This was noted by the judges in Edwards in the passage quoted and was also established in R v Lucas [1981] 1 QB 720.
[248]
[118] At trial the prosecution did not rely upon the appellant's lies as constituting evidence against him in the sense explained in Edwards. Nevertheless on the objective reappraisal of the evidence which this Court must undertake when considering whether to apply s 668E(1A) it is permissible to have regard to that use of the appellant's dishonest testimony. Applying the principles described in Edwards it can be seen that the lie, that the appellant had told Mr Lee that he was bankrupt, relates to a material issue, an element in the offence charged in count 1. It was clearly deliberate. The only sensible conclusion is that the appellant told the lie because, without it, he would be implicated in the commission of the offence.
[249]
[119] Quite apart from the appellant's testimony the circumstances proved in evidence gave rise to an inference that Mr Lee had not been told of the appellant's bankruptcy. It was proved that he did not tell Mrs Paronella who testified to her ignorance of the bankruptcy and the fact that Prendale would not have lent the money had she known of it. It is, to say the least, unlikely that Mr Lee would not have told her if he knew of it. The reasons are obvious. It was as much in the franchisor's interests as Prendale's not to lend to bankrupts. It was in the franchisor's interests not to damage the business of a franchisee both because of the need for continuing good business relationships and because the franchisor received a percentage of the interest payments. To involve its franchisees in the making of irrecoverable loans could only damage the reputation of the franchisor and damage the business relationship with franchisees.
[250]
[120] The inference is strengthened by the fact that the appellant was the borrower. I have mentioned the relevant indications. His name appears on the documents as borrower, assignor and, indeed, guarantor. He mortgaged his own property to secure the loan. He made the approach to Crown Securities for the loan. It is extremely unlikely that he would have mentioned a fact, his bankruptcy, which would have discouraged a potential lender from making the advance.
[251]
[121] The inference may not have been sufficient to prove, beyond reasonable doubt, that the appellant had not informed Mr Lee of his bankruptcy in the absence of evidence from Mr Lee. Whatever doubt may have attended the inference was completely dispelled by the appellant's attack on it.
[252]
[122] The inference is also strengthened by the appellant's failure to include Mrs Glatzel among the witnesses he called in his case, and to put to Mr O'Donnell, in cross-examination, the terms of the conversation the appellant claimed occurred in his presence. In Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Windeyer J (at 321) thought the statement in Wigmore on Evidence 3rd ed vol s 285 p 162:
[253]
'The failure to bring before the tribunal some ... witness, when ... the party himself ... claims that the facts would thereby be elucidated, serve to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the ... witness, if brought, would have exposed facts unfavourable to the party'
[254]
[123] Menzies J (at 312) listed three propositions concerning the failure by a party to call a relevant witness. The third was:
[255]
'... that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.'
[256]
[124] It must, of course, be accepted that the principle described in Jones has limited application to criminal cases. The reasons were explained in Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285. The fullest explanation appears in the joint judgment of Gaudron and Hayne JJ (292-3). Three reasons were given for the proposition that the principle will not 'ordinarily' apply, or will apply only in 'exceptional' cases.
[257]
[125] The first is that the reasoning underpinning the principle is that the person concerned, who does not call the witness, would ordinarily be expected to do so. But:
[258]
'... given the accusatorial nature of a criminal trial, it cannot be said that ... the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt.'
[259]
This consideration holds true both for an accused giving evidence himself and calling witnesses. So the expectation that an accused would call the witness does not arise from the fact that he elects to give evidence.
[260]
[126] The second reason is that the prosecution is required to call all available material witnesses unless there is some good reason not to do so, and such a reason is not afforded by the fact that the witness would give an account 'inconsistent with the prosecution case'. There is therefore no scope for the expectation: if the 'missing' witness was to be called the prosecution should have done so.
[261]
[127] The third reason is that the principle described in Jones is concerned with 'the drawing of inferences from proved facts and the confidence with which such inferences could be drawn.' In a case where the particular issue for a jury is whether a particular event occurred, or whether the accused committed a particular act, and there are witnesses to the events or acts inferential reasoning will have no part to play.
[262]
[128] Accepting that the Jones principle will only rarely apply in criminal prosecutions and that there are compelling reasons why it is inappropriate, in most cases, this case does appear exceptional. The appellant elected to give evidence, and to call witnesses. Having made that choice it can, I think, be fairly said that one would expect him to call a witness who, on his evidence, could offer critical corroboration for his defence. Secondly, the failure of the prosecution to call Mrs Glatzel is explained by the fact that her relevance as a witness was only revealed when the appellant gave evidence. Thirdly, the manner in which the appellant conducted his case meant that it was one in which inferences played a part. Even had Mr Lee been called so that the issue depended on a contest of word against word the absence of Mrs Glatzel whom the appellant claimed to be a material witness would have affected the assessment of credit where one party knew of her importance, the other did not, and the one who did neglected to call her.
[263]
[129] I would therefore conclude that the appellant's failure to call Mrs Glatzel as a witness adds some weight to the evidence from which I infer that the appellant did not reveal his bankruptcy to Mr Lee.
[264]
[130] The same is true of the appellant's failure to put to Mr O'Donnell in cross-examination that he was present when the appellant spoke to Mr Lee and overheard him say he was an undischarged bankrupt.
[265]
[131] Accordingly I would accept the lie about what was said to Mr Lee as an implied admission of guilt, or an admission that he did not reveal his bankruptcy to Mr Lee.
[266]
[132] I am satisfied that the evidence establishes beyond reasonable doubt that the appellant did not inform Prendale that he was an undischarged bankrupt when he obtained the loan from it. Accordingly, despite the misdirection, there has been no miscarriage of justice and the appeal against the conviction on count 1 should be dismissed.
[267]
[133] The next ground of appeal is that the joinder on the indictment of count 1 with the other counts gave rise to a miscarriage of justice or, alternatively, the trial judge did not adequately warn the jury against improper propensity reasoning.
[268]
'Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.'
[269]
[135] The appellant's counsel submitted that 'the test for the application of s 567' was found in Phillips vThe Queen [2006] HCA 4; (2006) 225 CLR 303 at 307, in which the Court said:
[270]
'It was not in controversy that if the evidence of each complainant were admissible on the charges relating to incidents narrated by other complainants, there would be a "nexus or connection" between the charges sufficient to make them a series within the meaning of s 567; and if the evidence were not admissible, there would not be a series, and unacceptable prejudice would arise ...'.
[271]
[136] Phillips was a case in which the accused was charged with eight offences, six of rape, one of assault with intent to rape and one of indecent assault. The charges arose out of separate incidents involving six complainants. The eight counts were charged on the one indictment. As the passage quoted shows it was only if the evidence led in support of each charge was admissible on each of the others as similar fact or propensity evidence that there was any connection at all between the offences. The High Court ruled that the evidence was not so admissible.
[272]
[137] From this case the appellant reasons that the only basis for a joinder of charges on the one indictment is that the evidence relevant to each charge be admissible as evidence supporting the others.
[273]
[138] This is not what the section says. It provides for three bases for joinder: charges founded on the same facts; charges which form part of a series of offences of the same or similar character; charges which constitute a series of offences committed in the prosecution of a single purpose.
[274]
[139] The appellant's proposition was rejected in R v Kray [1970] 1 QB 125 in which Widgery LJ said (for the Court) (130-131):
[275]
'... offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases. ... All that is necessary ... is that the offences should exhibit such similar features as to establish a prima facia case that they can properly and conveniently be tried together.'
[276]
[140] There was a commonality of facts between counts 1, 3 and 4. It was a necessary part of the proof of counts 3 and 4 that the boat had been mortgaged to Prendale. That fact was necessary to prove that the appellant's assertion to Mr Milostic that the boat was his, or was unencumbered, was dishonest. The forgery of the letter was part of the misrepresentation and was given as corroboration for it. In order to prove the assignment of the boat to Prendale it was necessary to explain the transaction pursuant to which the boat was given as security. This involved explaining that the appellant had borrowed money. That transaction is the factual origin of counts 1, 3 and 4 so that those offences were 'founded on the same facts'. Moreover, it is apparent that all offences were committed by the appellant in order to obtain funds for his restaurant business which appears to have been chronically short of money. The four counts involved obtaining money by unlawful means to prop up the business. That is sufficient to establish that the offences were a series in the prosecution of a single purpose.
[277]
[141] The question was discussed in R v Collins, ex parte Attorney-General [1996] 1 Qd R 631 at 636-7 by McPherson JA and Lee J. Their Honours said:
[278]
'It has long been accepted that the basic criterion for the joinder of counts ... is the existence of some connection or nexus between them, each limb of the subsection being illustrative of the circumstances giving rise to that nexus ... . In defining in broad terms what connection is sufficient ... examination of the cases demonstrates that an appropriately liberal reading be given to the text of the section, consistent with its underlying policy. That policy, it was stated in Kray, is to enable the joinder of charges which may be "properly and conveniently" dealt with together ... . It is obviously desirable both in the interests of the due and expedient administration of criminal justice and in the interests of finality of litigation in relation to the particular accused, that there be a single and final inquiry into matters which arise out of or which essentially involve common issues of fact or law. Any injustice which such a course has the potential to produce is adequately catered for by the discretion to sever provided for in s 597A. If nothing else, consistency in decision making would dictate that the one tribunal resolve such questions, little being gained from a fragmented approach. The simple means which the legislature has provided for giving effect to this policy is to allow the joinder of multiple counts ... in an appropriate case "so that the whole of the facts can be adjudicated upon by one jury": ... . Indeed so extensively has this policy been recognised, that the courts have laid down the general rule that matters which can be joined without prejudice to the accused ought generally to be ...'.
[279]
[142] Section 597A provides that before or during a trial if the Court is of the opinion that the accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence on the same indictment the Court may order a separate trial of any count or counts. No application was made to the trial judge for separate trials and no complaint was made about the joinder until after conviction. No prejudice or embarrassment to the appellant in his defence of any of the counts was identified by his counsel.
[280]
[143] In R v Cranston [1988] 1 Qd R 159 Macrossan J (with whom McPherson and de Jersey JJ agreed) said (165-6):
[281]
'The question immediately arises whether, even though an erroneous joinder may have been permitted, any miscarriage of justice to the accused occurred. In Dearnley v The King ... the Court of Criminal Appeal seemed to regard the fact that no injustice resulted from an improper joinder as a sufficient answer to any later complaint although it must be acknowledged that in that case no objection to misjoinder had been taken at the trial ... . Further cases are collected and a similar view is expressed ... in R v Phillips and Lawrence. In R v Bedington ... the Court again stated that an improper joinder was not a ground for setting aside a verdict unless there had been a miscarriage of justice.'
[282]
[144] This ground has not been made out. The alternative ground is that the trial judge did not adequately warn the jury against 'impermissible propensity reasoning.' His Honour in fact gave this direction:
[283]
'Now, the other factor I want to mention to you is that the defendant has been charged with four specific offences set out in the indictment. What that really means is that we have four separate trials going on here at the same time. You consider each element on each count separately and on its merits so that involves putting the evidence into four compartments, considering the evidence of each one and when doing that you exclude all other evidence from that compartment so you go through that exercise separately in relation to each count. I also remind you, if you have a reasonable doubt in respect of any one count then you should take that fact into account when you are considering any other of the charges or counts on the indictment.
[284]
Another matter to consider is the fact that there are four offences included in the one indictment does not mean you jump to any conclusion that because there are four charges against that person he must therefore be guilty of any one of them or some of them. I have already told you how more than one offence can be included in the one indictment, which was done on this occasion. I refer you to this: even if you are satisfied beyond reasonable doubt that he is guilty in respect of one offence that does not, of course, mean you have to convict him on any of the others or you must use that to cover your thinking in that regard. To convict him on that basis would be to convict him because of your opinion (of) his character and tendencies. The law insists that people are convicted on the basis of the relevant evidence placed before the Court at trial in respect of each of the charges, not on the basis of their character or because they may have committed or are alleged to have committed other offences.'
[285]
[145] This is a clear warning against reasoning that because the appellant may have committed one or more acts of dishonesty he was likely to have committed the remaining acts charged on the indictment. The jury was warned explicitly to consider the charges separately by reference only to the evidence relevant to each charge. The trial judge accurately identified the elements of each offence and referred the jury to the particular evidence relevant to each charge.
[286]
'Even if you are satisfied ... that he is guilty ...of one offence that does not ... mean you have to convict him of any of the others ...'.
[287]
[147] The submission was that the direction informed the jury that they did not have to reason that way but did not tell them in terms that they might not reason that way because the law forbade it. The submission is right as far as it goes but the error, if it amounted to such, was immediately cured by his Honour's direction that to reason in such a way would be to convict the accused on the basis of his character and tendency; and the instruction that the law insists that accused are convicted only on the basis of the evidence placed before them relevant to the commission of a particular offence, 'not on the basis of their character or because they may have committed or are alleged to have committed other offences.' That warning was quite explicit and adequate in the circumstances to overcome any misunderstanding that may have arisen from the infelicitous sentence.
[288]
[148] The alternative ground has not been made out.
[289]
[149] The last ground is that the Crown's failure to tender the original cheque in support of count 2 gave rise to a miscarriage of justice.
[290]
[150] A number of things should be said at once. Despite being pressed, counsel for the appellant could identify no particular injustice or prejudice occasioned by reason of the tender of the copy rather than the original. The copy was tendered without objection. Mr O'Donnell, who was the only signatory to the bank account on which the cheque was drawn, identified the exhibit as a copy of the cheque drawn by him, on that account. There was proof that the original cheque was presented for payment to the drawer's bank, and paid. The document put into evidence was a photocopy of the cheque taken prior to its presentation to the Bendigo Bank for payment. This fact emerges from the absence of a teller's stamp on the cheque made when the cheque is delivered to the drawer's bank. No evidence was led to explain by whom, why or when the photocopy was made but the omission is of no moment. It was proved that a cheque bearing the identifying numbers which appeared on the photocopy was presented for payment and paid. The bank statement was tendered. The proceeds of the cheque, $5,000, was debited to Mr O'Donnell's account. He was the only signatory to that account and he did not sign the cheque. Proof that it was the appellant who forged Mr O'Donnell's signature came from the facts as mentioned, that Mr O'Donnell did not sign it, and that the appellant asked Mr O'Donnell for the cheque and took possession of it. There was also evidence from Mr O'Donnell that he had asked the appellant if he signed the cheque and he replied 'Yes'. No reliance was made upon the actual signature to establish that it was in the appellant's hand though, as I mentioned, there is some similarity between that signature and the appellant's signature on the loan documentation.
[291]
[151] A complete answer to the appellant's complaint is afforded by s 116 of the Evidence Act 1977 (Qld). It provides:
[292]
'Notwithstanding any other provision of this part, where a document has been copied by means of a photographic or other machine which produces a facsimile copy of the document, the copy is, upon proof to the satisfaction of the court that the copy was taken or made from the original document by means of the machine, admissible in evidence to the same extent as the original document would be admissible in evidence without -
[293]
(a) proof that the copy was compared with the original document; and
[294]
(b) notice to produce the original document having been given.'
[295]
[152] The pre-conditions were satisfied. The copy itself proved that it was a facsimile copy made by a machine. Mr O'Donnell identified the photocopy as a copy of the original cheque. The section made the copy admissible 'to the same extent as the original ...'.
[296]
[153] There is no substance in the ground. The appellant has not shown any basis for challenging the convictions save for that on count 1 with respect to which the application of the proviso means that the conviction on that count, too, should stand.
[297]
[155] The appellant also applied for leave to appeal against sentence on the basis that, if his appeal against the conviction on Count 1 succeeded there should be a reduction in the sentences imposed on Counts 2, 3 and 4 to reflect the diminished extent of criminal behaviour. In the event the appeal has been unsuccessful and the application for leave to appeal against sentence should be refused.
[298]
[156] FRYBERG J: In relation to the second and third grounds of appeal, I agree with the reasons for judgment written by Chesterman JA. Those reasons demonstrate why the appellant's convictions on counts 2-4 should stand.
[299]
[157] I also agree with what his Honour has written on the additional complaint about the summing up.[21] I add some further comments.
[300]
[158] The structure of the summing up was as follows:
[301]
First, general instructions;
Second, directions as to the elements of each offence in turn, including in relation to the first and third counts, directions as to mistake;
Third, general directions on circumstantial evidence;
Fourth, a summary of the evidence of each witness in turn, quoting extensively from the transcript and referring to exhibits, and indicating to which count the evidence related;
Fifth, a summary of the addresses of each party.
[302]
[159] It cannot be said that adopting such a structure amounts to an error of law. It is however to be discouraged, because it does not give the jury the assistance to which they are entitled. Sitting on a jury can be a very confusing experience. Trial judges should sum up in a way which best avoids confusion. In most cases that will not be achieved by separating the second, fourth and fifth sections described above. It will usually be preferable for the judge (after dealing with matters the subject of general instructions) to deal with each count in turn, and within each count, each element in turn. The law relating to the element should be described, and while that is fresh in the jurors' minds, the parties' submissions about the element and the evidence relating to it (for and against) should be summarised. Elements of any available defence should be dealt with in the same way. Often evidence will be relevant to more than one element and some incorporation by reference may be necessary. In some situations the structure may need to be different; it is impossible to prescribe a model for every case.
[303]
[160] That is not intended to encourage an academic exposition of elements of an offence or defence which are not in issue in a particular case. Where elements are undisputed, it may be possible to bundle them or include them as an undisputed portion of another element. How they are identified and dealt with always calls for an exercise of judgment; and there is no single correct answer.
[304]
[161] The substance of the directions regarding mistake is set out in the reasons for judgment of Chesterman JA.[22] I agree with his Honour that those directions were erroneous in that they did not reflect the provisions of s 9.1 of the Commonwealth Criminal Code and that the misdirection was important. It follows that the appeal must be allowed unless the case falls under s 668E(1A) of the Queensland Criminal Code ("the proviso").
[305]
[162] It is important in this case to identify some of the issues alive at the end of the trial. One was the identity of the credit provider. The Crown contended it was Prendale Pty Ltd. The defence contended it was Crown & Gleeson Securities Pty Ltd. The identity of the provider was particularised in the indictment. Had the defence contention turned out to be correct it would not have followed automatically that the appellant was entitled to be acquitted; although an amendment to the indictment may have been necessary. But the identity of the provider was important because of the way the defence case was conducted. That case was that the appellant told Mr Lee, an employee of Crown & Gleeson Securities Pty Ltd, of his bankruptcy. Either that company was the lender or the appellant believed it was the lender. Either way, if the appellant said what he claimed to Mr Lee (or more accurately, if the Crown failed to prove that he did not disclose his bankruptcy to Mr Lee), he was entitled to an acquittal. Either the physical element of failing to inform the lender that he was an undischarged bankrupt was negated or the fault element relating to that physical element was negated.[23]
[306]
[163] The appellant's evidence was that he did believe that the loan came from Crown & Gleeson Securities Pty Ltd. It was neither his case nor his evidence that he believed Mr Lee was acting as agent for Prendale Pty Ltd, for the receipt of information or for any other purpose. As far as he was concerned, both Mr Lee and the Paronellas were representatives of Crown & Gleeson Securities Pty Ltd.
[307]
[164] These issues were reflected in the manner in which Tutt DCJ directed the jury on the law relating to count 1:
[308]
"In respect of count 1, the elements of that offence are that the prosecution must prove that (1) on or about 25 November 2003 at Port Douglas, the accused John Navarolli was (2) an undischarged bankrupt and that he (3) obtained credit to the extent of $3,972.97 or more from Prendale Pty Ltd and obtained such credit (4) without informing Prendale that will he, John Navarolli, was an undischarged bankrupt.
[309]
... how does the prosecution prove its case in respect of count 1? The prosecution must prove beyond reasonable doubt that (1) the accused was an undischarged bankrupt at the relevant time. Well, now, that has been admitted, so that won't cause you much problem.
[310]
(2) that the accused intentionally obtained credit to the extent of $3,972.97 or more from Prendale Pty Ltd. Now, the amount in question here, as we know, is more than that, it's $30,000, but the creditor, that is from whom he obtained or from which he obtained credit is very much in dispute on the defence case. The amount is not in dispute but the creditor is in dispute.
[311]
(3) the accused was reckless in his failure to inform Prendale Pty Ltd that he was an undischarged bankrupt. I will come to recklessness in a minute. So that's the third item.
[312]
(4) the prosecution must negative beyond reasonable doubt any valid defence, for example, any reasonable and honest but mistaken belief in the mind of the accused as to the existence of a certain state of things. That is, that the funds were from Crown & Gleeson Securities and to whom, on his evidence, he told Mr Lee that he was a bankrupt, so the prosecution must negative that."[24]
[313]
In giving this direction, his Honour was reading from a document which he had handed to the jury.[25]
[314]
[165] Two aspects of the summing up on ground 1 should be mentioned. Given my finding on ground 4, it is unnecessary to express a concluded view on either. First, the summing up did not deal with the possibility that Mr Lee was authorised to receive information about prospective loans on behalf of Prendale. Notwithstanding the conduct of the defence case, if such an agency had existed, and there was a reasonable doubt as to whether the appellant had disclosed his bankruptcy to Mr Lee, the appellant would have been entitled to an acquittal. The jury were not told of this route to that result.
[315]
[166] Second the jury were directed that in relation to the physical element of failing to disclose, the relevant fault element was recklessness, an element which could be established by proving intention, knowledge or recklessness.[26] Apparently the view was taken that the physical element in question fell under s 5.6(2) of the Code, which is concerned with physical elements that consist of a circumstance or a result. It is strongly arguable that the physical element here in question was neither a circumstance nor a result. This subsection is concerned with physical elements like that created by the opening words of the present offence ("An undischarged bankrupt shall not ...") - a circumstance; and with elements comprising the consequence of proscribed conduct (to take a hypothetical example, an offence involving conduct causing death) - a result. If that is correct, the relevant fault element was intention[27], and it would have been necessary to so direct the jury.
[316]
[167] The Crown submitted that this Court should conclude that no substantial miscarriage of justice had actually occurred[28] because the direction relating to recklessness virtually covered the same ground as would have been covered by a proper direction on mistake; and because the appellant's evidence that he told Mr Lee of his bankruptcy was incredible. I would reject the first reason. The content of the direction did not cover the same ground; in any event the direction regarding recklessness was far from clear; and I am not satisfied for the reasons just discussed that recklessness was the appropriate fault element.
[317]
[168] In relation to the application of the proviso, I take the following propositions to be established by the decision of the High Court in Weiss v The Queen[29]:
[318]
1. An appellate court cannot be satisfied that no substantial miscarriage of justice has actually occurred unless it is satisfied beyond reasonable doubt that the appellant is guilty of the offence.[30]
[319]
2. The limitations on the appellate process may mean that it is impossible for the court to be so satisfied in the circumstances of the case, simply by reason of the nature of the process.[31]
[320]
3. Satisfaction of guilt beyond reasonable doubt is a necessary, but may not be a sufficient condition for the application of the proviso.[32]
[321]
4. There may be some errors or miscarriages of justice which amount to such a serious breach of the presuppositions of the trial as to deny the application of the appeal provision with its proviso.[33]
[322]
5. Section 80 of the Constitution might import a minimum requirement into the elements of a trial which in particular circumstances might not be saved by the common form provision.[34]
[323]
[169] Count one alleged an offence against the statute law of the Commonwealth. The trial therefore took place in the exercise of federal jurisdiction. It was consequently necessary that it conform to the requirements of s 80 of the Constitution. There is no suggestion in the appellant's submissions that it did not do so. Potential constitutional issues can therefore be put to one side.
[324]
[170] The most direct evidence on the question of mistake was that given by the appellant himself. It was that evidence which the Crown submitted was incredible. Other relevant evidence included the documents by which the loan was established and, possibly, a lie or lies told by the appellant which were indicative of guilt. All of the relevant evidence must be taken into account when this Court considers whether it is satisfied beyond reasonable doubt that the appellant is guilty of the offence. Contrary to the submission of the Crown, it is not sufficient simply to consider whether the appellant's evidence that he told Mr Lee of his bankruptcy was credible; although it is necessary to consider that question.
[171] If a rejection of the appellant's credibility was implicit in the jury's verdict, it would be legitimate for an appellate court to take the verdict into account.[36] In the present case it cannot be said that such a rejection was implicit in the verdict. The verdict might have been the product of applying the law in accordance with the misdirection rather than a rejection of the appellant's evidence.
[327]
[172] An important aspect of the appellant's evidence which is helpful when assessing his credibility was his evidence that he told Mr Lee of his bankruptcy. He alleged that he did so in the presence of Ms Glatzel and Mr O'Donnell. The Crown had not called Ms Glatzel in its case; the first it knew of the allegation was when the appellant gave the evidence. Can any inference be drawn from the appellant's failure to call her in his case?
[328]
[173] In Dyers v The Queen[37], Gaudron and Hayne JJ, with whom Kirby J agreed, wrote:
[329]
"5 As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence."[38]
[330]
The exceptions referred to in Azzopardi[39] have no present application. In the same case Callinan J wrote:
[331]
"121 The principles stated in Jones v Dunkel presuppose that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial. This is not an exceptional case of the kind referred to by their Honours in RPS."[40]
[332]
The present case too is not an exceptional case of the kind referred to in RPS.[41]
[333]
[174] On their face those statements would seem to preclude drawing an inference adverse to the appellant from his failure to call Ms Glatzel. However in my judgment, it is necessary to have regard to the reasons underlying the dicta. They grew out of the earlier decisions of the High Court in RPS and Azzopardi, which in turn were influenced by Weissensteiner v The Queen.[42] In Dyers, as in the other three cases, the accused did not call evidence. Gaudron and Hayne JJ expressed three principal reasons for concluding that a Jones v Dunkel direction should not have been given against him. The first related to the form of the directions, particularly in relation to the accused testifying. Their Honours observed that it would seldom if ever be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. It was for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning in Jones v Dunkel ordinarily could not be applied to a defendant in a criminal trial because he would ordinarily not be expected to give evidence. In the present case the force of this reason is considerably diminished by the fact that the appellant both gave evidence and called witnesses. The usual obstacle to the mode of reasoning in Jones v Dunkel did not arise.
[334]
"11 The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act 'with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one' (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.
[335]
If, in a particular case, the prosecution chooses, for good reason, not to call a witness (as, for example, on the basis that the evidence which would be given by that witness would be 'unreliable, untrustworthy or otherwise incapable of belief') it would be quite wrong to invite the jury to conclude that the accused could be expected to have called that person. Yet if the jury are to be invited to draw some conclusion adverse to the accused from the fact that a witness has not been called, it can only be on the basis that it would be expected that the accused would call that person unless the evidence that would be given would not assist the accused. But if the evidence was important and credible, why was it not adduced by the prosecution?"[43]
[336]
[176] In the present case the evidence did not even establish that Ms Glatzel was available to be called. There was evidence in a company search that she had resided at an address at Nerang in 1997 and it might be inferred that she continued so to reside until August 2006; but what had happened to her between that date and the trial in March 2008 was not addressed. Nor was it readily to be inferred that if called she would necessarily have been able to give relevant evidence. The appellant's evidence was that she was going through the books at the time he made the phone call. I would not assume that she would necessarily remember overhearing one end of a telephone conversation which occurred well over four years earlier.
[337]
[177] It is in my judgment significant that the Crown prosecutor made no application to call rebuttal evidence. It may be that the Crown was the subject of a carefully planned ambush, and that there was no reason for Ms Glatzel to be called in the Crown case. However the appellant's evidence implicating Ms Glatzel was given at about midday on 31 March. His case was not closed until late the following day. It was then open to the prosecution to apply to call rebuttal evidence and if necessary to seek a short adjournment to enable the attendance of the witness. It did not do so. Whether it had tried to contact Ms Glatzel or succeeded in doing so does not appear; but she does not seem to have loomed large in the prosecution's assessment of the case.
[338]
[178] The third reason expressed by Gaudron and Hayne JJ was that the direction contradicted another direction that the jury should not speculate about what evidence might have been given by persons who were not called. As such it distracted from the central issue for the jury in the case. In my judgment the same could be said about using the reasoning of Windeyer J to draw inferences in the present case.
[339]
[179] There is also a question as to the precise use to which that reasoning could be put in the present case; in particular whether it could logically impinge on a credibility finding. It is unnecessary to discuss the question. Although there are grounds for distinguishing Dyers, I am not satisfied in the present case that there existed a sufficient basis for the use of such reasoning by the jury. I note that the prosecution did not suggest otherwise.
[340]
[180] For the same reasons, this court should also decline such reasoning in assessing the appellant's guilt for the purposes of the proviso.
[181] In MWJ v The Queen[45] Gummow, Kirby and Callinan JJ wrote:
[343]
"The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country."[46]
[344]
Nonetheless, the rule is applied in a number of Australian jurisdictions, including Queensland and New South Wales. The object of the rule is to secure fairness, both to parties and witnesses. Failure to observe it can manifest itself in a variety of ways and there is variety also in the ways in which unfairness may be avoided. But the rule (or, more accurately, non-compliance with the rule) is also used in another way: to found an inference about the version of evidence which a witness has given to counsel calling him or her.[47] This court has held that that use has survived the decision in MWJ v The Queen.[48]
[345]
[182] The occasions when that can be done in a criminal trial are limited, and great care is needed in giving directions to a jury in relation to such use. That point has been made in a number of cases. It is unnecessary to canvass them here. In the present case the judge directed the jury in a way which was not challenged by the appellant. Nor did the appellant suggest that this court could not use the appellant's non-compliance with the rule to found an inference that he told lies in the course of his evidence.
[346]
[183] For these reasons I do not propose to set out an analysis of the evidence in sufficient detail to demonstrate the non-compliance and justify inferring the lies. Much of the evidence is referred to by Chesterman JA. It suffices to say that I accept the respondent's submission that the appellant's evidence of disclosure of his bankruptcy to Mr Lee was incredible. He lied.
[347]
[184] If I am to apply the proviso in the present case it is not enough that I reject the appellant's evidence. I must be positively satisfied, beyond reasonable doubt that the appellant did not disclose his bankruptcy to Mr Lee. Let it be accepted that the appellant's evidence was a lie. That lie can assist in proving the non-disclosure only if it operates as an implied admission of guilt. The circumstances in which this approach may be adopted were described by the High Court in Edwards v The Queen.[49] In the present case the prosecution did not at trial seek to use lies in this way and the trial judge gave no such direction. The appellant does not complain about the summing up in relation to lies.
[348]
[185] In the course of the appeal counsel for the respondent said:
[349]
"MS ABRAHAM: Well it [the lie] wasn't used in that way [as an implied admission of guilt]. It didn't need to be used in that way, in my submission. The Crown's not relying on it in that way and it doesn't need to [to] establish this count, in my submission."[50]
[350]
Counsel for the appellant had not addressed the issue when he made his submissions to the court, and, understandably, he did not refer to it in his reply. In these circumstances I do not think it is appropriate for me to use the appellant's lies in this way.
[351]
[186] Circumstantial and documentary evidence points to the appellant's guilt. Chesterman JA has referred to that evidence[51] and I need not repeat it. I add that to my mind it is very unlikely that a person of the appellant's character, so willing to lie under oath, would have told the truth to Mr Lee when the truth would predictably have disadvantaged him. Porcine aviation is far more probable.
[352]
[187] It must be conceded that the amount of evidence tending to establish that the appellant did not inform Prendale that he was an undischarged bankrupt is not large. In my judgment, when a fact sought to be disproved is fanciful, a large amount of evidence is not needed in order to disprove it. That applies in the present case. I am satisfied beyond reasonable doubt that the appellant did not disclose the fact that he was an undischarged bankrupt to Mr Lee. In other words, the prosecution proved that physical element to the requisite standard.
[353]
[188] It is unnecessary for me to identify the correct fault element for that physical element. I am satisfied beyond reasonable doubt that the nondisclosure was intentional. Whether the case falls under s 5.6(1) or s 5.6(2) of the Criminal Code (Cth), that element was proved to the requisite standard.[52]
[354]
[189] Consequently I am satisfied of the appellant's guilt beyond reasonable doubt. It was not submitted that there exists any discretionary reason to refuse to apply the proviso, nor that the error at first instance was so profound that it could not be applied.[53] No substantial miscarriage of justice has occurred.
[355]
[190] It follows that the appeal should be dismissed. The application for leave to appeal against sentence was contingent on the appeal being allowed at least in part. Consequently, it too should be dismissed.