R v Teys [2001] ACTSC 29

CRIMINAL LAW AND PROCEDURE - evidence - hearsay evidence under s 67 of the Evidence Act - whether admissible - it was.

CRIMINAL LAW AND PROCEDURE - application to quash indictment and/or order permanent stay of prosecution - whether open to prosecution to proceed on indictable charges of false accounting when summary charges of stealing were statute-barred - it was.

CRIMINAL LAW AND PROCEDURE - application to quash indictment and/or order permanent stay of prosecution - whether open to prosecution to proceed on indictable charges of false accounting when summary charges of stealing were statute-barred - it was.

CRIMINAL LAW AND PROCEDURE - application to reserve question of law to Full Court under ss 428, 470 of the Crimes Act 1900 - procedure obsolete - surpassed by Federal Court of Australia Act 1976, s 24 and possibly Supreme Court Act 1933, s 20(1)(a).

Crimes Act 1900, 99, 99A, 108, 135C, s 428, s 470

Crimes Act 1914 (Cth),

Crimes Act 1900 (NSW)

Unemployment, Sickness and Benefits Act 1944 (Cth).

Criminal Appeal Act 1912 (NSW)

Supreme Court Act 1933 s 20

Seat of Government Acceptance Act 1909 (Cth), s 8

Service and Execution of Process Act 1992 (Cth)

Evidence Act 1995 (Cth), s 67, s 81 s 97(1), s 98, s 101(2)

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1

R v Chalak (1983) 47 ALR 600

R v Bankowski (1971) 18 FLR 179

McDermott v The King (1948) 76 CLR 501

R v Amad [1962] VicRp 75; [1962] VR 545

Conway v R, McFie v R [2000] FCA 461, 172 ALR 185

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

1. Before and during the trial I made rulings on various matters of law and said that I would give reasons later. These are the belated reasons.

2. On 11 September 2000 the Director of Public Prosecutions presented an indictment containing 23 counts of false accounting contrary to s 108 of the Crimes Act 1900 (the Crimes Act). Before the accused was required to plead, Mr Bellanto QC for the accused, moved the Court for the following orders:

i. That the indictment save as to counts 4 and 14 be quashed as an abuse of the processes of the Court;

ii. In the alternative, that the proceedings on the indictment, save as to proceedings on counts 4 and 14, be permanently stayed;

iii. In the further alternative a question of law be reserved for the consideration of the Judges of this Court, namely whether it is competent for the Director of Public Prosecutions to charge an offence or offences pursuant to s 108 when the factual matter or material upon which that charge or those charges is or are based would also support the charge or charges pursuant to s 99A, which charge or charges is or are strictly summary matters and statute barred by virtue of s 31 of the Magistrates Court Act 1931.

3. There were two broad grounds on which orders (i) and (ii) were sought, first, that as a matter of law it is not open to the Director of Public Prosecutions to prosecute on indictment an offence under s 108A when the facts support an offence under s 99A of the Crimes Act, and secondly, that it would be oppressive for the accused to have to stand trial on those facts and therefore an abuse of the process of the Court.

"A person who, with a view to gain for himself or herself or another person... dishonestly -

(a) ...falsifies any ... document made or required for any accounting purpose; or

...

is guilty of an offence punishable, on conviction, by imprisonment, for 7 years."

"A person who steals property the value of which does not exceed $1,000 is guilty of an offence punishable on conviction, by imprisonment for 6 months or a fine not exceeding 50 penalty units, or both."

6. Although the two grounds on which the orders are sought are distinct, the background to the case is instructive as to how the indictment comes to be framed as it is, and on the question of abuse of process.

7. I shortly outline the background. On 16 May 1997 the accused was charged with some 200 offences contrary to s 135C of the Crimes Act, that is to say, offences of forgery. On 26 September 1997 he was charged with a similar number of offences contrary to s 99 of the Crimes Act, that is to say, offences of stealing. All of those matters came before a magistrate on 22 February 1998 when the accused was committed for trial on all charges.

8. On 28 September 1999 a directions hearing took place before Higgins J. A draft indictment was put before his Honour. It contained 445 counts, being all the charges on which the accused had been committed for trial. Counsel for the Director of Public Prosecutions indicated to his Honour that it was intended to proceed only on 22 of those counts, all being charges of stealing under s 99, but only two of them being in respect of property of a value exceeding $1,000. Argument took place on the indictment the following day.

9. On 8 October 1999 Higgins J expressed the view that the 20 counts alleging stealing property not exceeding $1000 in value were not allegations of indictable offences and cannot be prosecuted on indictment. It is to be observed that there was nothing before his Honour which enlivened the jurisdiction of the Court to make an order or give judgment, and that what his Honour called a ruling was no doubt intended to assist the parties to arrive at a decision as to the real issues that could and would be prosecuted.

10. I was told that on 11 October 1999, the date that had been fixed for a two week trial, the accused was remanded to a date to be fixed owing to the illness of a principal Crown witness who has since died. No indictment was presented but apparently there was some inconclusive discussion about what the indictment was to contain.

11. On 22 and 28 August 2000 a directions hearing was held by me. There was no indication that there would be any application for an adjournment of the trial, although I was told that there would be a challenge to the indictment. For that reason, 11 September 2000, which would have otherwise been the first day of the trial, was set aside for dealing with the notice of motion which was subsequently filed, and the jury was summoned for 12 September 2000, the rest of the week being set aside for the trial.

12. The nature of the prosecution case was summed up by Higgins J as follows. The accused was employed by the alleged owner of the property alleged to be stolen, as a manager of a rural business. He had authority to operate a bank account of his employer for the purpose of the business. He drew cheques for his own purposes, contrary to his authority.

13. From what I was told before the trial commenced, that remained an essential part of the Crown case on the indictment presented on 11 September 2000. However, it was further alleged, for the purpose of the counts under s 108, that the accused falsified receipts for the purpose of concealing the true purposes of his drawing on the cheques.

14. I reserved the question overnight. Even so, it was not possible to fully canvass the various issues that were raised, and I mention only the matters which I found decisive. Before proceeding to do that, however, I observe that the question of whether or not the ruling or expression of opinion by Higgins J is correct did not fall to be determined by me, although it was part of the prosecution's submissions before me that his Honour was incorrect and fell into error in his expression of opinion.

15. On the first question, on which a quashing of all or part of the indictment is sought, reliance was placed on the decision of the High Court in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1. In that case, the High Court resolved a conflict on the authorities in Australia relating to prosecution for certain sexual offences. Under direct consideration was the Crimes Act 1900 (NSW), which imposed a time limit for prosecuting an offence of unlawful carnal knowledge of a person under 16 years, and also for assault with an act of indecency. In contrast, there was no time limit for the offence of committing an act of indecency with or towards a person under the age of sixteen years. It was held by a majority that a charge alleging the latter could not be brought when the conduct relied on was one or other of the former. McHugh J, with whom Toohey J agreed, said that as a matter of statutory construction, the creation of the offence of committing an act of indecency with a person under 16 years was not intended to deal with cases which constituted an assault or carnal knowledge. Gaudron J came to a similar conclusion for similar but not identical reasons.

16. McHugh and Toohey JJ considered further that, in providing for an offence of committing an act of indecency with a person under 16 years without a limited period in which to prosecute, Parliament did not intend to provide a way of circumventing the limitation periods for prosecuting for assault with an act of indecency or for carnal knowledge.

17. In my view, the ratio in Saraswati is limited to the proposition that the prosecution could not proceed on a charge of committing an act of indecency if the evidence compelled a conclusion that that conduct constituted carnal knowledge or indecent assault without any severable act of indecency. Saraswati in my view, does not apply to a situation where the conduct relied upon as constituting the offence charged is not co-extensive with or included or merged in another offence which is not charged.

18. The prosecution under s 108, as laid in the present case, requires proof of the following elements:

(i) falsifying a document, namely, as charged, a receipt;

(iv) that the document was made for an accounting purpose.

None of these elements is necessarily involved in proving an offence of stealing under s 99 or s 99A of the Crimes Act, except the dishonesty of the conduct.

19. Proof of a charge of stealing, if pursued in the present case, might involve evidence of the false receipt, but a charge of stealing involves an element of appropriation of property, in this case money, which is not an element of the offence of false accounting. Further, I doubt whether appropriation of the property is proved simply by evidence of the false receipt, although a receipt may be some evidence of appropriation.

20. Conduct alleged to constitute false accounting, that is to say, making out a false receipt as charged in the present case, is not co-extensive with stealing the amount shown on the receipt, and is not merged with the offence of stealing the amount which the false receipt is designed to conceal.

21. The prosecution, in my view, might allege both offences if it were not oppressive to do so. In the event of conviction the Court would be careful to impose sentences appropriate to the facts as they relate to each count, and not to impose double punishment. But there is no obstacle in law to alleging both offences.

22. There is an associated question concerned with implied repeal of s 108, which was introduced into the Crimes Act by s 99A, on 18 June 1996. In my view, there is no such repeal, and no inconsistency which gives s 108 a limited operation subject to s 99A. It is not necessary to address the retrospective operation, if any, of s 99A.

23. In this respect, the situation is similar to that described by Street CJ in R v Chalak (1983) 47 ALR 600, where his Honour said, at 603, that:

"The question is simply one of seeing whether or not within the well-established principles it can be seen that the 1944 Statute in its operation discloses a sufficient element of inconsistency to yield the inference that the legislature intended that the earlier provision (that is to say, 29B), should be excluded in its operation in respect of facts such as those alleged in the present indictment."

"One can readily envisage the necessity of having access to a court of summary jurisdiction for the purpose of visiting some comparatively minor departure from the requirements of the Act with a corresponding minor punishment. It would clearly enough be an encumbrance to the administration of criminal justice to contemplate that every infringement of a provision such as s 49 should require trial on indictment and I see every reason to understand the legislature as having intended to create a parallel system of summary justice to be invoked in circumstances not justifying the more solemn procedure of trial on indictment. The summary nature of the penal scheme enshrined within ss 49 and 50, and in ss 138 and 139 of the current statute, in my view, can readily stand together with the general indictable offence constituted under s 29B."

24. I should add that his Honour was talking about provisions of the Crimes Act 1914 (Cth), as they might have been affected by provisions of the Unemployment, Sickness and Benefits Act 1944 (Cth).

25. In my view, s 99A exists to provide a parallel system of summary justice which may be invoked when the prosecuting authority considers that the circumstances do not justify trial on indictment. But the prosecuting authority is not bound to prosecute summarily, and is not restricted to the summary procedure because the circumstances fall within the provisions authorising summary procedure, as well as within the scope of one or more indictable offences.

26. I turn to the submission based on abuse of process. In short, it is submitted that, on the events which have unfolded, the Director of Public Prosecutions has gained an unfair advantage, in effect obtaining judicial advice as to the inadequacy of the draft indictment, and acting on that advice, whilst at the same time maintaining that Higgins J was in error in his conclusions that the draft indictment was, in relation to 20 counts, bad.

27. It was submitted by Mr Bellanto that if the Director of Public Prosecutions maintained that his Honour's approach was wrong, then the Director should have insisted on his right to present an indictment in the form of the draft, thus giving the Court jurisdiction to rule determinatively on the adequacy or fairness of the indictment, and to either quash the indictment in whole or in part. It was submitted that such a ruling, if adverse to the Director, would have constituted a judgment of the Court, on which the Director could have appealed or at least sought leave to appeal, under s 24 of the Federal Court Act 1976 (the Federal Court Act).

28. I agree that the Director might have taken that course, although it is not entirely clear that the Director would have had a right to appeal, or even to seek leave: see R v Carruthers (unreported, Full Court of the Federal Court, 28 October 1988). I also agree that, in proceeding under s 108, the Director was attempting to gain a more favourable position, vis-á-vis the accused, than he would have had if he had insisted on presenting the indictment in the draft form which Higgins J had before him.

29. However, I do not see that there is any unfair advantage. The Director has the right at any time, up to the presentation of the indictment, to choose the charges on which to proceed, and even to present an ex officio indictment, subject only to the right of the accused to a fair trial. If the charges are not those on which the accused was committed for trial, or raise issues not dealt with at committal, there are various ways of avoiding unfairness, such as adjournment, furnishing of particulars and witnesses' statements not already furnished, affording an opportunity to cross-examine or further cross-examine prosecution witnesses in the absence of the jury, and so forth.

30. In the present case, there is an unresolved conflict in what I have been told from the Bar table about the extent to which the defence team was informed about the decision to prosecute under s 108. Ms Cronan for the Director of Public Prosecutions, said that this was made known to the accused's solicitors within a few days of 8 October 1999. However, it is tolerably clear that it was not until 28 August 2000, the date of a further directions hearing before me, or at least a date shortly before that, that a copy of the proposed indictment in its present form was served on the accused's present solicitors. No complaint was made at the directions hearing about late service. Be that as it may, the charges under s 108 do not, to my mind, constitute an abuse of process of the Court.

31. In addition, it was submitted that framing the indictment under s 108 was an impermissible or unfair way of avoiding the consequences of the indication by Higgins J that charges of stealing on the indictment were impermissible unless the value of the property exceeded $1,000, because it meant that the prosecution could avoid the consequences of being statute barred on the summary charges under s 99A.

32. However, it follows from my previously expressed view, that the counts under s 108 are lawful, and that unless there is some other factor to justify a stay, none should be ordered. I have not found any such factor.

33. The remaining matter was whether the issues of quashing the indictment or ordering a stay on the grounds relied upon, raise a question which should have been referred to the Full Court of the Federal Court under s 26A of the Federal Court Act, and the trial postponed in the meantime. Mr Bellanto at that stage disavowed any intention to have the question referred to the Full Court of this Court under s 428 of the Crimes Act.

34. I note that the notice of motion sought to refer the question to a Full Court of this Court. It appeared to me at the time that if s 26A of the Federal Court Act applied, then a Full Court of this Court was deprived of jurisdiction under s 428 of the Crimes Act. However, those matters do not need resolution because, in my view, whilst it may well be that the accused would see his interest better served by having the trial postponed and the question referred to a Full Court, I did not accept that it was in the interest of justice to do so, for the following reasons.

35. The offences were alleged to have occurred during the period between 26 July 1994 and 31 September 1996. The accused first came before this Court on 15 September 1998 following his committal for trial. A two week trial was set down for 11 October 1999. I am not aware of the reasons for the delay to that date. However, on that date that trial had to be vacated owing to the illness of a principal prosecution witness. A week was set aside for the present trial, although, as I have said, the first day was taken up with the notice of motion.

36. At neither of the directions hearings before me on 22 and 28 August 2000 was the possibility raised that there might be an application to postpone the trial. In my view, it was not shown on behalf of the accused that the ordinary course of criminal proceedings should not be followed. I considered that the trial should take place without further delay, by a jury, to be empanelled from those summoned.

37. Objection was taken to the admissibility of the contents of a typed record of interview between the accused and Constable Francis Jamieson conducted at the Winchester Police Centre on 8 January 1997. However, during the course of submissions it transpired that the objection was based not on inadmissibility but on discretionary grounds. Nevertheless, it may be necessary to state expressly that, having read the record of interview, watched the playing of a video tape of the interview and considered the oral evidence on the voir dire, including the evidence of the accused himself, I concluded that the prosecution established, as the accused himself agreed, that the answers to the questions were given voluntarily and in the exercise of free will.

38. The first objection was that the interview was tainted by what had been said and done by Constable Jamieson at an earlier meeting between the two men on 20 December 1996. Evidence was taken on the voir dire on that issue. It established that the meeting took place at the rural property owned and occupied by the accused at 2 Karinya Plains Road, near Michelago, New South Wales. At the request of the Australian Federal Police, the New South Wales Police had obtained a warrant to search the premises. The warrant was to be executed by Constable Jamieson or by the New South Police under the Service and Execution of Process Act 1992 (Cth) with Australian Federal Police in attendance.

39. Constable Jamieson was accompanied by other plain clothes officers, some from the Australian Federal Police and some from the New South Wales Police. They were driving unmarked cars. They were also accompanied by a uniformed constable from the Michelago Police Station driving a four-wheel drive vehicle.

40. It was not clear at what time the police party first arrived at the property, but it was certainly in the morning and after 8 o'clock. Their access to the property was blocked by a gate across the road secured by a lock and chain. The house and a nearby shed on the property were located no more than a kilometre past the gate and along a drive which presumably led from the road. The police party was observed by the accused who had been working in the shed.

41. Whilst the police were considering what to do about getting past the locked gate, Mr Miguel Gonzales arrived in his utility. He was a son-in-law of the accused and had come to deliver mail. The locked gate was freed by police with a bolt cutter used, at the suggestion of Mr Gonzales, not to cut the lock but the chain.

42. The police then approached the house and were met by the accused. One of the New South Wales Police produced the search warrant and made its contents known to the accused. All or some of the other officers then searched the premises. A conversation or conversations between the accused and Constable Jamieson then followed as the search proceeded over the next two hours or more. The evidence was in conflict about what was said in those conversations. The major conflict was whether a caution was given by Constable Jamieson. Constable Jamieson said that Detective Wilson gave a caution in the usual terms after the contents of the search warrant were made known, and that he (Constable Jamieson) gave a similar caution during the conversation with the accused. The accused claimed that no such caution was given at any time by either officer.

43. Constable Jamieson said in his evidence-in-chief that during the search the following exchange occurred:

"ACCUSED: I take it that I'm in a bit of trouble.

JAMIESON: A lot of trouble."

44. He said that it was immediately after that exchange that he administered the caution. He said that there was then general conversation about matters not connected with the search, such as the price of rural properties, rural livestock and the like, and then:

"ACCUSED: What should I do?

JAMIESON: I can't give you legal advice. You should get a solicitor.

ACCUSED: What if I was to confess to $20,000 worth of theft?

JAMIESON: I have an indication of a high theft of $300,000. You'd be best off getting a solicitor. Would you be willing to take part in a taped record of interview?"

45. The accused's evidence on the voir dire was that neither police officer gave a caution at any stage. His account about what was said otherwise did not conflict greatly with that of Constable Jamieson, except that he claimed that a lot more was said than Constable Jamieson was able to remember or prepared to concede. In particular, the accused said that Constable Jamieson had put to him that he had stolen up to $300,000 and that the accused had replied that "over the years there might have been twenty grand, that was all". The latter statement is consistent with what the accused said in the interview at the Winchester Centre on 8 January 1997.

46. On the central issue whether a caution was given, I accepted the evidence of Constable Jamieson. On some aspects I thought that his evidence was shown to be wrong, for instance, on gaining access to the property. However, I accepted that he was at the premises essentially for the purposes of the search warrant, not to question the accused, and that it was the willingness, if not the eagerness, of the accused to broach the possibility of pleading guilty to an offence involving $20,000 or thereabouts that led to the accused raising the subject of being in "a bit of trouble" and the need as Constable Jamieson then saw it, to administer a caution.

47. The accused, in cross-examination, said that he did not remember the absence of a caution, or tell anyone about it, until 24 or 48 hours before he gave his evidence on the third day of the voir dire. He said that he had not realised that it was "such an interesting item" until he had been asked about it recently by his counsel, Mr Pappas. There were other matters which he claimed were said to him by Constable Jamieson which were not put to Constable Jamieson in cross-examination, for instance that Constable Jamieson refused to allow him to telephone his solicitor and that at one time when the telephone rang, Constable Jamieson lifted and replaced the receiver, with the inference that the accused was being prevented from answering the telephone and, in effect, being treated as if he were under arrest.

48. Whilst Constable Jamieson conceded that he considered that he had "sufficient evidence" in the way of cheques, receipts and other documents to charge the accused, I think that it was likely that he did not wish to do so at that stage. He was after all in New South Wales in connection with a search to locate evidence for an Australian Capital Territory offence. His primary object was, he said, to see that the New South Wales Police conducted the search calmly and efficiently and, if possible, to follow it with an interview at the police station where the accused might have a solicitor present. Once the accused started to talk about being in trouble, it was timely and proper that a caution be given by Constable Jamieson, and I find that it was, in fact, given.

49. Thus the submission that the later interview at the police station was tainted by unfairness because of previous impropriety during the search at Michelago failed.

50. The next objection to the record of interview was that so much of the questioning was improper and over-bearing that none of the contents should be permitted to go to the jury. However, in my view, and except in the sense and to the extent indicated below, the questioning was not improper or over-bearing. In particular, the audiovisual tape of the interview shows positively that the questioning was conducted in a restrained non-aggressive manner in the presence of the accused's solicitor. The accused is shown to be under some stress, but that is explicable by the fact that he was being interviewed in a police station about offences, some of which he was prepared to admit to then, and as he had done on the previous occasion at Michelago. The solicitor, who was not called to give evidence on the voir dire, made no attempt to intercede on his client's behalf during the interview, except on one occasion when he unsuccessfully attempted to have the police allow his client to clarify the answer to one of the questions. I note the evidence given by the accused in the trial that the solicitor was suffering from a hangover and interested only in coffee. Even if it were true, it would not have affected my assessment of the evidence for the purposes of the ruling.

51. Significantly, the accused made no complaint on the voir dire about being over-borne or confused or otherwise affected by the manner of questioning, although he did so later in the trial.

52. After taking the foregoing into account and also what appears immediately below, I reached the conclusion that there was no reason to exclude the whole of the record of interview from the consideration of the jury.

53. The alternative submission was that if the record of interview was not to be totally excluded, then parts of it should be. The principal point taken was that some of the questioning was, on the face of it, in the nature of cross-examination and that the authorities establish a general principle that it is improper or unfair for a police officer to ask questions in the nature of cross-examination when interviewing a person in custody or at a police station, and that questioning of that nature, and the answers given, should not be permitted to be given in the trial.

54. In my view, the authorities do not establish such a broad principle, although it must be said immediately that there are decisions to be found which appear to assume such a principle. An example par excellence, perhaps, is to be found in the judgment of Smithers J in this Court in R v Bankowski (1971) 18 FLR 179. His Honour there stated at 182 in broad terms that "[it] is quite improper to cross-examine an accused person in custody". However, in my respectful view, the principle is not so broad. Questioning which would not be allowed in court in examination-in-chief, but which is allowed by way of cross-examination, is not necessarily unfair. If it is unfair it will be disallowed. A question may not be prefaced in-chief by the words "I put it to you"; on the contrary those words are a classic introduction to a question in cross-examination. They are also a classic example of cross-examination which is ineffectual. They are asked to avoid unfairness in the light of the so-called rule in Browne v Dunn (1893) 6 R 67. Thus, it appears to me that questions which in a trial would be regarded as cross-examination are not necessarily regarded as improperly put by a police officer questioning a suspect.

55. In McDermott v The King (1948) 76 CLR 501 at 507, Latham CJ said that cross-examination in the context of the questioning of a suspect is limited to "cross-examination about a voluntary statement which a prisoner has already made". However, that statement does not appear to be supported by other authority. A wider view of the general principle is reflected in the remarks of Dixon J in McDermott at 513:

"The abuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence. So is insistence upon questions or an attempt to break down or qualify the effect of an accused person's statement so far as it may be exculpatory. ...."

"The character of the questions, the absence of any insistence or pressure in putting them, the fact that no questions were put directed to breaking down or destroying the prisoner's answers or statements and the fact that there was no attempt to entrap, mislead or persuade him into answering the questions, still less into answering them in any particular way, these are all matters which negative such a degree of impropriety as to require the exclusion of the testimony as to the prisoner's admissions."

56. It was this general principle that I believe Smith J had in mind when he said in R v Amad [1962] VicRp 75; [1962] VR 545 at 548:

"... the questioner... is nevertheless cross-examining in the sense relevant to the matters here in question when he [sic] proceeds, ... to submit the person in custody to a searching questioning in which disbelief is repeatedly expressed in his denials of complicity, his account of his movements is challenged and checked, he is confronted with evidence of its falsity, he is accused explicitly of lying ..."

57. Further, there is a practice which has developed in recent years of excluding, in the exercise of discretion, any indication by a police officer, whether express or implied, of his belief in the guilt of the accused, or any question based on an assumption of guilt, and whilst such questions are not, in my view, necessarily unfair or improper in a general sense, the courts these days are usually astute to exclude questioning that proceeds on such a basis. For that reason I struck out certain questions and answers in the copy of the record of interview which was presented on the voir dire. It is not necessary to reproduce them in these reasons. They were excluded from the video tape of the interview which was played to the jury and excluded from the transcript of what was said at the interview which went into evidence.

58. Evidence that the prosecution proposed to call which fell into the category of tendency evidence was described in a notice accompanying a letter written by the Director of Public Prosecutions to the accused's then solicitor on 28 August 2000, pursuant to s 97(1) of the Evidence Act 1995 (Cth) (the Evidence Act). It consisted of receipts, cheques and summary notes set out in an attached chronological schedule. The period covered was from April 1994 to July 1996. There were, I believe, some 400 such documents in the schedule relating to some 200 instances of creating false receipts by the accused. I was not asked to, and I did not, examine all of the documents set out in the schedule.

59. Counsel for both parties were content to make submissions in general terms. The documents in question were generally very similar (some of them strikingly similar if that is to the point) to groups of other documents (included in the schedule) presented to prove each of the counts on the indictment. These groups consisted of, first, a cheque drawn by the accused on the JT Adamson Naas account, secondly a receipt, allegedly false, purporting to show expenditure for some or all of the proceeds of the cheque for the purposes of the JT Adamson business and, thirdly, in some cases, another receipt or an endorsement on the cheque allegedly showing the true expenditure of some or all of the proceeds of the cheque by the accused for his own purposes. In the later part of the period the allegedly false receipt was not matched by a corresponding cheque or an endorsement on the cheque.

60. It is not necessary to discuss the question of admissibility of this material at length. The question is conceptually a difficult one. It was dealt with to some extent by a Full Court of the Federal Court of Australia recently in Conway v R, McFie v R [2000] FCA 461, 172 ALR 185 at [78-84]. The Federal Court referred to the authorities and particularly to Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, where in the joint judgment of Mason CJ, Deane and Dawson JJ, it was said at 464:

"There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence."

"Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged: Boardman [1975] AC at 452, 458-459; Sutton (1984) 152 CLR at 556-557; Hoch (1988) 165 CLR at 295. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused: Hoch. Here "rational" must be taken to mean "reasonable": see Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252, and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle."

62. It is important to recognize that their Honours are saying here that the unusual task of the trial judge, to ask whether there is a rational view of the evidence consistent with the innocence of the accused, is to be carried out in the context of the whole of the evidence available in the prosecution case at the voir dire stage. It seems to me that the test is to be applied in the light of the familiar situation on a "no case" submission of looking at the prosecution case at its highest, and not in the light of any exculpatory evidence that may be included in the evidence presented by the prosecution, or which may remain to be given in the defence case before the jury. I did not see any warrant for considering, at the voir dire stage, exculpatory evidence given by, or on behalf, of the accused.

63. Pfennig was a case concerning the principles of admissibility and exclusion at common law. However, I do not understand that the principles enunciated are not to be applied to evidence which the Evidence Act categorises as "tendency" evidence under s 97 or "coincidence" evidence under s 98. The overlapping of categories of evidence of prior criminal or reprehensible conduct tendered to prove an offence or offences charged, appears to be recognized in the paragraphs quoted. As far as categorization is concerned, I think it is enough in the present case to say that, in my view, the so-called tendency evidence is not evidence which falls within s 97, nor is it relationship evidence as that term is used at common law.

64. However, I am positively satisfied that it is evidence of "related events" falling within the coincidence rule under s 98 because it tends to show that, because of the improbability of the acts charged on the indictment being committed coincidentally with the related events and without dishonesty, the receipts produced by the accused were procured or created dishonestly. The related events were substantially and relevantly similar and the circumstances in which they occurred were substantially similar.

65. Applying the test laid down in the majority judgment in Pfennig, and taking the prosecution case at its highest, I came to the view that there was no rational view of the coincidence evidence that was consistent with the innocence of the accused. Hence the evidence was not made inadmissible by the Pfennig principle.

66. I do not consider it unfair to regard the challenged evidence as coincidence evidence falling under s 98 rather than tendency evidence falling under s 97, although the notice given by the Director of Public Prosecutions relied on the latter and not on the former section. In any event, whether as coincidence evidence or as tendency evidence, it is not available to be used by the prosecution unless, in accordance with s 101 of the Evidence Act, its probative value substantially outweighs any prejudicial effect it may have on the accused.

67. The weighing of actual probative value of proposed evidence with potential prejudicial effect is always difficult and the difficulties vary according to the circumstances. Prejudice in this sense encompasses a quality of unfairness. If it simply meant damaging to the accused's case, then the more probative the evidence the more prejudicial its effect might be on the position of the accused in the trial.

68. In the present case the nature of the documentary evidence directly relating to each of 22 charges on the indictment was similar to that of most of the coincidence evidence (a cheque, a "false" receipt, a "genuine" receipt or other documentary evidence of the actual expenditure of the proceeds of the cheque). There was no cheque or "genuine" receipt in relation to the 23rd count. The documentary evidence directly relevant to the 23 counts on the indictment was, as a whole, tendered to show the improbability of the conduct, and accompanying mental element, on one charge occurring as a mere coincidence in relation to the conduct, and accompanying mental element, on any other charge. None of the directly relevant documentary evidence was objected to in that regard. It seems to me that the probative value of the direct documentary evidence to support the 23 counts one against the other was not substantially less than that of the coincidence evidence of conduct outside that constituting any one count in the indictment. Nevertheless, under s 101 the coincidence evidence had to be shown to be of significantly greater probative weight than the potential prejudicial effect on the accused.

69. Mr Bellanto submitted that it was the sheer number and mass of the acts the subject of the coincidence evidence, and the number of documents constituting that evidence, which went to constitute potential prejudice to the accused, and which was not substantially outweighed by its probative value. In short, he submitted that if the prosecution was not able to rest its case on the totality of the conduct charged on the 23 counts it had chosen to prosecute, then it would be unfair to allow it to bolster its case by some 200 other instances of similar conduct which it had chosen not to prosecute.

70. I considered that there was substance in that submission. Whilst an accused person who engages in criminal conduct of a particular pattern can hardly claim to escape the consequences by reason of the sheer number of similar acts committed, there must be a limit as to how many of them may be relied upon by the prosecution in any one case. As I have said, the circumstances vary from case to case. There is no magic one way or the other about the number of 23 counts. There are instances of cases where many more counts have been permitted, particularly in the area of fraud and other commercial crime, and other cases where fewer counts have been disallowed. There was a murder case in England recently where, as I understand it, there were counts relating to over 60 victims. However, it seems to me that in the present case to have allowed evidence of some 200 other instances of similar acts on the part of the accused, was to load the prosecution case with unnecessary ammunition. The jury were unlikely to give particular attention to each and every one of those instances. There was a consequent danger that the jury might be swayed by the number of instances of further and similar alleged criminal conduct and by the number of documents in support. This might have operated unfairly to the accused.

71. However, there was one category of coincidence evidence that I did not think would operate unfairly against the accused, and which should be permitted notwithstanding the provisions of s 101(2) of the Evidence Act. During the interview of the accused by Constable Jamieson on 8 January 1997, a number of alleged false receipts and one cheque were shown to the accused and he was asked to comment. The comments made by the accused were ruled admissible and not to be excluded from the consideration of the jury. There would have been no unfairness to the accused in allowing those documents to go to the jury since their probative weight was to be measured not only on their face (as was the remainder of the coincidence evidence) but also in the light of the accused's comments. In this respect the probative weight of the documents shown to the accused substantially outweighed any prejudicial effect that they might have had on the accused. I should add that after I had given consideration to the arguments over the objection and ruled that the receipts and cheque shown to the accused were not to be excluded, they were not tendered by the prosecution in the trial.

72. I should acknowledge here that at the time of the ruling I understood the evidence on the voir dire to establish that the accused was shown a group of receipts identified by serial numbers added by the police and, apart from one cheque, those receipts only. It emerged during the trial that the accused was (or may have been) shown other receipts in addition to those identified by the serial numbers. If that were so it would not have caused me to change my ruling previously made on the evidence on the voir dire, nor, might I say, if the evidence in the trial had been given on the voir dire, would I have made any different ruling at that stage. In any event, as I have said, none of the tendency evidence was in the end sought to be put before the jury, except to the extent that the evidence to support one count was relied upon to support each of the other counts.

73. The next objection was to hearsay evidence, notice of which had been given in accordance with s 67 of the Evidence Act.

74. The first item is a conversation between the late Mr JT Adamson, his son Mr David Adamson and the accused in late June 1996 concerning the accounting procedures to be adopted once Mr David Adamson took over the lease of the Naas Homestead. The second item is the statement by the late Mr JT Adamson to Mr David Adamson in September 1996 in which the former said, amongst other things, "Noel is not allowed to write cheques for himself". I need be brief only about my reasons for ruling that the evidence was admissible. First and foremost it came within the provisions of s 67 of the Evidence Act, which permits hearsay evidence to be given on notice, and I saw no unfairness in allowing it. In any event, the evidence that was eventually given in the trial as to the former occasion was limited to a conversation initiated by the accused when he spoke to Mr David Adamson alone, the other persons having left the room.

75. In the circumstances, this evidence was not hearsay in the usual sense but an admission against interest and admissible on that basis under s 81 of the Evidence Act. Further, the second item was, in my view, capable of being a representation by Mr JT Adamson of the system of accounting in the business whilst it was being run by him, and the evidence was admissible on that basis. However, when Mr David Adamson gave evidence in the trial of the conversation in question, he did not say that his father used the words in question, or made any statement to similar effect, and ultimately there was, in the evidence before the jury, nothing in that conversation which amounted to a representation which could be admitted as hearsay evidence.

Statement by the late Mr JT Adamson to Constable FJ Jamieson on 14 October 1996

76. This evidence was tendered also as hearsay under the Evidence Act. It was tendered in order to prove the arrangements between Mr JT Adamson as employer and the accused as employee for the operation of the Naas Homestead bank account. It contains the following statements:

"Noel Teys was given permission to draw cash monies or cheques against the Naas Homestead ANZ Account for the purpose of payment of costs directly resulting from the operation of the Naas Homestead.

At no time did I give permission to Noel Teys to remove money by cash or cheque from the Naas Homestead account for any other purpose."

77. In my view, the evidence was admissible as a representation and indeed the contents were not the matter of dispute. However, the question arose whether the document in which the statements are recorded was or was not admissible. I do not know of anything that makes the document admissible as such. Unlike the record of interview, it was not adopted in any way by the accused. Mr Bellanto submitted that it would be unfair to allow the written statement to go to the jury because they might give it an importance that it does not deserve. That may well be so, although the statement contains very little that is adverse to the case for the accused.

78. However, fundamentally the document was not admissible and was not admitted for that reason.

Reference of question under s 428 of the Crimes Act

79. On 13 September 2000, the day after the ruling that the question of whether to quash the indictment or order a stay of proceedings should not be referred to a Full Court of the Federal Court of Australia, Mr Bellanto handed up a document that it was submitted contained a question of law that the Court was bound to reserve for the consideration of a bench consisting of all the judges of the Supreme Court.

80. The question sought to be reserved was as follows: Where it is found that the Crown has obtained an advantage through a judicial ruling on a draft indictment and at a directions hearing and as a consequence redrafted the indictment, does this amount to an abuse of process sufficient to justify a permanent stay of proceedings on the redrafted indictment in circumstances where, had the Crown proceeded with the draft indictment, the accused would have been acquitted on some counts?

81. Section 428 of the Crimes Act provides as follows:

"428 Reserving questions of law at trial

(1) Where any question of law arises on the trial of any person, or is submitted before sentence passed on him or her, the court shall, on the application of his or her legal practitioner then made, and may in its discretion, without any application, reserve every such question for the consideration of the judges of the Supreme Court.

(2) Upon reserving any such question the court shall either admit the person to bail in accordance with the provisions of the Bail Act 1992 or commit him or her to prison.

(3) The like proceedings may be taken, so far as they are applicable, where any question of law arises on the arraignment of any person, or as to the verdict, or judgment given, or to be given."

82. Section 470 of the Crimes Act provides for the procedure to be followed after reserving a question of law. The procedure commences with the judge by whom the question of law is reserved stating a case.

83. It is usual in case stated procedures that the party requesting the question to be reserved lodge a draft case for the attention of the judge. That has not been done in the present case. It is desirable that something be done to bring the matter to finality