R v Walsh [2002] VSCA 98

R v Walsh [2002] VSCA 98 - VSCA 2002 case summary — Zoe

[82]

To sum up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on "unanimity" about one or other or more of those bases, at least if they do not "involve materially different issues or consequences". (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales[53] - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend "upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence". When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.

[89]

In our opinion, however, the submission misunderstands the charge which was laid. Count 1 alleges a conspiracy to defraud the victim "by dishonestly inducing the said Trust to invest money in a purported investment scheme proposed by" the alleged co-conspirators. As the case was presented by the Crown, the Trust, having been induced by dishonest means to invest in the scheme afoot, was then to be at risk of suffering loss in either of two ways: either by the conspirators themselves taking what was not theirs to take (which happened) or more simply by the Trust's attempting to make the "investment" to which the conspirators led them. Either way, the risk was obviously not one that the Trust would have even contemplated, let alone taken, had it not been for inducement by the conspirators. The essence of the scheme alleged by the Crown lay in cheating the Trust out of its funds by inducing it to invest funds in a manner which exposed it to twin dangers: that the conspirators would divert money to their own use and that money would be lost because of the risks inherent in attempting to purchase from unregulated bodies in distant lands what was not capable of being sold. There was none the less but one conspiracy to defraud the Trust by dishonestly inducing it to invest its funds in the scheme being advocated by conspirators, to its prejudice. As we see it, the alternatives identified by Mr. Croucher were no more than particulars, as disclosed by the evidence presented to the jury, of what was but the one offence, the agreement to defraud the Trust. As seen in Hancock, the essential element of such an offence is the agreement to act dishonestly to the prejudice of the Trust. That was what was charged; it was charged as one offence and there was no duplicity. Nor did that form of pleading lead to uncertainty in the verdict. Indeed it might be that the judge's direction as to the need for unanimity among the jury if they chose between the two ways in which the Trust might have been defrauded was not necessary, but if that was error it was an error in favour of the applicant.

[101]

It is particularly significant in this regard that no such submission as is now made to us was made at the trial; in particular no objection was taken below to the form of count 1 because of the statutory provisions. It was not submitted to the trial judge that the charge should have been, not of conspiracy at common law, but of conspiracy under s.321 of the Crimes Act. Mr. Croucher submitted that the failure of counsel to mention s.321 to the trial judge reveals oversight on his part, but we are not certain. Trial counsel was quite senior and very experienced, a specialist in the area of criminal law and practice, and, given that there had been a deliberate move before the trial away from the presentment containing more than 70 counts of some particularity to four counts of a more comprehensive kind, it might well have been that counsel saw forensic advantage in the way in which the offending was in the end being pleaded. Even one count of conspiracy at common law might well have appealed as being preferable to two counts of a statutory offence (even if the latter did cover the field). That is of course mere speculation on our part, but we would be loath to attribute oversight to such experienced counsel merely from the fact that no express reference was made, at any stage in the trial, to s.321 of the Crimes Act. Moreover, the submission of unfairness in the framing of the presentment is pre-eminently a submission that ought to have been made below (where it might have been cured before the start of the trial) and not now for the first time after the conclusion of the trial. Trial counsel might have had good reason for not making the submission, especially as the trial augured well to be complicated enough, but the decision was essentially for him. Trial counsel remaining silent on this issue, we do not think that on this appeal we should now entertain for the first time, and at the instance of new counsel, the submission that the framing of count 1 was unfair to the accused. In short we are not prepared to find error below on that account.

[112]

As Mr. Croucher pointed out (and indeed this was the burden of his complaint in paragraph f), there were extensive discussions between Bench and Bar in the course of the charge over the question of dishonesty, resulting in more than one re-direction. Not surprisingly, a great deal of the discussion centred on the High Court's discussion of dishonesty and conspiracy to defraud in Peters v. R.[61], and particularly in the joint judgment of Toohey and Gaudron, JJ., with whom, despite his own inclination, Kirby, J. agreed for the sake of providing clear guidance to trial courts. Mr. Croucher contended that the reasoning of the majority was substantially qualified in its application to the present case by reason of the operation of ss.321(2) and 321D in particular of the Crimes Act, sections to which no reference had been made in the course of the discussions at trial - another instance, he claimed, of oversight by trial counsel. In short, Mr. Croucher's point was this: s.321D applied s.321(2) to a common law conspiracy to defraud and in substance s.321(2) insisted that, if the accused was to be guilty, intention to defraud must be established. (Although s.321(2)(a), in the context of the statutory crime of conspiracy to commit "a particular offence", refers to intention "that the offence the subject of the agreement be committed", s.321D expressly applied this particular provision to the common law offence, albeit with such adaptations as were necessary, and so it was common ground that s.321(2) must be taken to require in the present context an intention to defraud.) Such an intention, Mr. Croucher submitted, was necessarily to be judged subjectively, not objectively, making more relevant to the position here the approach preferred by Kirby, J. than that adopted by Toohey and Gaudron, JJ. Indeed Mr. Croucher maintained that, whatever the significance of the discussion in Peters, in this instance subjective intention to defraud had to be established and the jury had not been so directed.

[183]

So far as cumulation is concerned, Mr. Croucher made an earnest plea that there should have been substantial concurrency among counts 2, 3 and 4 in that the misconduct in question "wholly or substantially overlapped in time; the actions alleged in support of those counts were interwoven and directed at the same end; and the behaviour alleged in count 3 was in a sense the continuation of the corruption of Mr. Dougall" (who, of course, is mentioned in count 1). And then, he submitted, there should have been complete, or nearly complete, concurrency between count 1 on the one hand and counts 2, 3 and 4 on the other. But none of these submissions should be accepted. The offences of attempting to pervert the course of justice were serious offences and, though perhaps committed in an effort to avoid discovery of the offending in count 1, merited condign punishment. On count 2, the Crown relied upon the making and use of 23 documents between 1 December 1992 and 31 December 1993: count 3 was the attempt, between 8 July 1993 and 15 December 1993, to persuade Mr. Dougall to provide false information, either to the police or to the court should judicial proceedings follow; and count 4 was the attempt between 1 October 1993 and 31 January 1994 to persuade Mr. Boyle to do likewise. We should have thought that orders for cumulation in respect of one year only of each of the three year sentences imposed on counts 2, 3 and 4 were proper and we see no reason why there should have been "complete, or nearly complete, concurrency [with] count 1". An argument about cumulation does not bear much elaboration and, in all of the circumstances, we do not see error in the orders that were made for cumulation. Certainly we reject the argument that in some way the proper process was inverted by his Honour when sentencing: this is not a case like DPP v. Grabovac[89], where inappropriate sentences were imposed on individual counts in order to accommodate a pre-determined total effective sentence.

[187]

There remains the question of disparity, an argument, it seems, raised nowadays whenever co-accused are sentenced for what is in substance joint offending. Mr. Croucher carefully set out in a table the sentences imposed respectively upon the applicant, Nair and Powles for this matter involving the Nauru Trust, and also, in respect of the applicant and Nair, the Cuda matter, and in respect of Powles' embezzlement of clients' funds. The argument that there was in this case disparity giving rise to a justified sense of grievance is made the more difficult for the applicant because, while all three men were charged with conspiracy to defraud the Trust, only the applicant was charged with attempting to pervert the course of justice. Nair was charged over secret commissions and the use of a false document and Powles was charged over secret commissions. The common charge of conspiracy to defraud drew for the applicant a term of imprisonment of seven years, for Nair a term of four years and for Powles a term of two years and six months which was wholly suspended. Mr. Croucher argued, of course, that the differences were altogether unjustified, the differences between the offenders falling far short of explaining the great differences that existed in sentencing. But again, we are not persuaded. Mr. Coghlan emphasised the significant distinctions between the three offenders which, he submitted, were properly reflected in the different sentences imposed. Thus, the applicant had a prior conviction for a serious dishonesty offence; he could not receive any discount for pleading guilty, showing remorse or for undertaking to give evidence for the Crown; he did not suffer from a psychiatric illness as did Powles; nor was he entitled to the same sort of reduction as Powles, by reason of the principles in Mill. Further, submitted Mr. Coghlan, the critical difference in any comparison of the total effective sentences and the non-parole periods lay in the fact that the applicant was convicted on three attempts to pervert the course of justice, in addition to the conspiracy to defraud. Nair's sentence on the charge of using one false document, moreover, fell far short of the offence in count 2 on which the applicant was convicted. These submissions should, we think, be accepted and in the result we reject the argument based upon parity.

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