Regina v GIAM [1999] NSWCCA 53 | Case summary

1 SPIGELMAN CJ: The Appellant appeals against his conviction on six counts of offences against s178BB of the Crimes Act 1900 of making a false statement with intent to obtain a financial advantage. At his trial the Appellant was also convicted on a seventh count of an offence against s176A of the Crimes Act 1900, namely, that as a director he did cheat and defraud. No appeal is brought from the conviction on the seventh count. 2 There are two grounds of appeal. First, that each of the six indictments for offences against s178BB of the Crimes Act 1900 was duplicitous. Secondly, with respect to each of these convictions the Appellant invokes what has customarily been described as the "unsafe and unsatisfactory" ground of appeal. 3 The basic facts of the criminal conduct can be briefly stated. The Appellant was in a position to control the conduct of a group of companies that were involved in the business of the development of property. The modus operandi of the group was that a central management company would put together particular projects. Each separate project would be undertaken by a special purpose corporate vehicle. 4 The corporate group had arrangements with its bankers to the effect that the various accounts of the different companies could be treated by different members of the group in an integrated manner. Surplus funds in one account would be offset against the overdrawn state of an account of any other company, so long as the overall balance was in accordance with the arrangements. 5 The critical criminal act was the addition to the list of companies entitled to this offset arrangement of a range of companies and individuals that were not, in fact, part of the corporate group but represented private interests associated, particularly, with the appellant. 6 The Appellant exploited his access to this finance for a range of personal purposes including a gambling addiction of considerable scale. During the period of time before the practice was detected and ceased, something of the order of $13,000,000 was paid on his behalf to bookmakers. In total the Appellant drew on an amount of almost $26,000,000. There was a shortfall, including an amount of approximately $6,000,000 as a result of the Appellant overdrawing this account, directly or indirectly, to his own benefit. 7 The Crown case was described by his Honour Judge McGuire in his reasons on sentence as "a particularly strong Crown case". Some further detail of the evidence in the case will need to be set out in the context of considering the second ground of appeal. 8 It was common ground before this Court that nothing turned on any difference amongst the six charges. In each case the conduct was the same. In each case the alleged legal defect of duplicity was the same. It is therefore convenient to concentrate on the first count before the trial Judge which was in the following terms: "For that he on or about 22 September 1988 at Sydney in the State of New South Wales, with intent to obtain for Jason Property Management Pty Limited & Ors a financial advantage, namely a facility with the State Bank of New South Wales, did make a false statement, namely, that he, Tony Giam, was secretary of Jason Property Management Pty Limited and Fibodi Pty Limited, and that he had been authorised to enter into such an arrangement with the bank to obtain such a facility, which he knew to be false and misleading in a material particular." 9 Each of the other five counts referred to different facilities with respect to different companies obtained on various dates thereafter. 10 On 22 September 1988, the relevant date with respect to count one, the State Bank entered into what was called a set-off arrangement which, in effect, pooled the money in a number of accounts enabling any account to go into overdraft provided that the net balance in the pool was in credit. The Appellant signed on behalf of each of the relevant companies as secretary of those companies. The Appellant's brother also signed the documents as a director of each of the companies. 11 The verdict of guilty by the jury necessarily meant that the jury was satisfied beyond reasonable doubt of each of the essential elements of the offence including that the statement that the Appellant "was secretary (of the identified companies) and that he had been authorised to enter into such an arrangement" was false and that the Appellant had made the statement or statements with intent to obtain a financial advantage for the persons identified in each count. 12 What is not known is whether or not the jury were satisfied of one or other of the two statements contained in the count. The first of the statements being the statement that he was the secretary of the identified company. The second of the statements being that he was authorised to enter into those arrangements. In the present case, the fact that the matter was left to the jury on the basis that it was, meant it could come to the conclusion that it did on the basis of one or other of the statements being false. That is made clear in the summing-up by his Honour of the relevant charges. 13 During the course of his summing-up in respect of the first count his Honour said this: "Let me take you to the first charge. What the Crown has to prove is that on or about 22 September 1998 the accused made a false statement: (a) that being the secretary of J P M and/or (b) that he had been authorised to enter into an arrangement with the State Bank to obtain an overdraft facility and that at the time he made such statements he knew that it was false or misleading in a material particular. That is to say it was false in that he was not the secretary of those companies and/or that he had no such authority ... So the Crown has to prove that he knew he was not the secretary of those companies and/or that he knew he had not been authorised to enter into that arrangement ... These statements are of two different types. Firstly, he says 'I am the secretary of those companies', that is one statement. The second statement is 'I have the authority to enter into the overdraft arrangements, the set-off arrangements'. You might feel both of them were false statements or he knew they were false, or you might feel that the first statement was not false or the second one was and if the other elements were proved and you find he made one false statement that was sufficient to provide a conviction ... So it is no use six of you saying this statement was false and other six saying this was false and the other was not. So there must be a unanimous decision in relation to any false statement whether it be one or both ." (Emphasis added) 14 The issues associated with the question of duplicity have been the subject of recent authoritative reconsideration by the High Court in Walsh v Tattersall (1996) 188 CLR 77. In an extensive review of the relevant principles and the history of the doctrine, Kirby J indicates the basis of its continuing validity at pages 104-112. Gaudron and Gummow JJ, who made up the majority with Kirby J, referred generally to a number of the points made in the analysis by Kirby J, but focused in particular on the provisions of the statute, in the course of concluding that the Appellant in that case was not charged with an offence known to the law and stated at p 87: "The question upon which the appeal turns is not whether in a single count the appellant was charged with more than one offence. It turns upon an anterior question. This is whether the appellant was charged with any offence created by the Workers Rehabilitation and Compensation Act (1986) (SA) [the Act]. In our view, the appellant was not so charged and his appeal succeeds." 15 Section 178BB provides: "Whosoever with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years". 16 It was submitted in this case, as it was in Walsh v Tattersall, that s8(b) of the Interpretations Act 1987 stating that the use of the singular will include the plural may be applicable in this case, so that the word "statement" in s178BB of the Crimes Act shall be understood to mean "statements". In my view that submission should not be accepted. 17 The first reason for that is this is a criminal statute and it should be construed strictly. The second reason is that the word immediately preceding the word "statement" is the word "any", which points to a degree of singularity. Thirdly, the conclusion is reinforced by the crucial sub-element of the same element in the section, namely the definition of the nature of the statement. The statement has to be a statement which a person knows to be false or misleading "in a material particular", or which is in fact false or misleading "in a material particular" and which is "made with reckless disregard as to whether it is true or false or misleading", again, "in a material particular". 18 The reference to the definite article in these crucial references to "material particularity" is such as to identify the fact that a single statement is being referred to on the proper construction of s178BB. 19 There is a category of cases in which a single statement can be constituted from more than one utterance or representation. Indeed, the second of the two statements in the charges under consideration in this case, namely whether or not a person had authority to enter into a contract, is characteristically a "statement" which can be so described. It is a "statement" which on many occasions is an inference to be drawn from a number of utterances and a course of conduct. 20 In Stanton v Abernathy (1990) 19 NSWLR 656 at 662 Gleeson CJ said: "As King CJ observed in R v Traino (1987) 45 SASR 473 in the context of perjury, a number of utterances made on oath by an individual concerning a given subject may or may not, depending upon the circumstances, constitute a single false statement or a number of false statements or, of course, a number of statements some of which are false and some of which are not. Each false statement involves a separate crime of perjury. Considerations of commonsense and fairness enter into a judgment on the question of how many statements ought to be taken to have resulted from a number of utterances." 21 His Honour returned to this matter in the second of the cases Stanton v Abernathy & Anor (No 2) (1991) 53 ACrimR 241 at 242 when his Honour said: "For the reasons given in Stanton v Abernathy it is open to the prosecution in a case such as the present to seek to establish that one or a number of particular answers or groups of answers given in evidence amounted to a single false statement: See Traino (1987) 45 SASR 473. Of course, when the Crown charges according to that method it necessarily raises for consideration an issue of fact as to whether or not the particular answers in question do in there combined effect amount to a single statement of the kind alleged in the charge. If that issue of fact is resolved against the Crown that means the charge will fail." 22 As can be seen from the summing-up by his Honour, which I have quoted extensively above, the Crown did not pursue a case of that character. The case was conducted on the basis and left to the jury on the basis, that the jury could make a finding that either of the statements was false and that with respect to the statement they found to be false the Appellant knew it to be false in a material particular. 23 Whilst the doctrine of duplicity has been subject to some criticism over recent years, its reaffirmation in Walsh v Tattersall is such that plainly this Court would apply it. 24 With respect to the matter before this Court, however, there is no reason to be hesitant in doing so. The doctrine of duplicity plays a number of different roles and performs a number of different functions. With respect to the case before this Court, the relevant role performed by the doctrine of duplicity is that of ensuring that a sentencing judge has before him or her a clear indication as to the facts that have been found on the elements of the crime. 25 In the present case there may have been a difference, with respect to sentencing for this offence, if the representation found to be false by the jury, and to have been known to have been false in a material particular, was, on the one hand, the occupancy of the office of secretary, which appears to me to be lower on the level of criminality, or on the other hand they could have found that the statement that was false, and knowingly so in a material particular, was the question of authority. The latter statement being higher on the level of criminality, in my opinion. 26 The fact that sentencing is a relevant consideration was indicated in the joint judgment of Gaudron and McHugh JJ in the case of S v The Queen (1989) 168 CLR 266 at 284 where their Honours said: "However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: A Court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a Court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict". 27 This principle was applied by Kirby J in his reasons in Walsh v Tattersall (supra) at pages 101 to 102 and in this respect the joint judgments of Gaudron and Gummow JJ specifically agreed with Kirby J (see p90). 28 The fact that this was a relevant consideration in the present case was highlighted in his Honour's reasons on sentence delivered on 29 May 1998 where at p4 his Honour said: "To find the prisoner guilty on the first six counts it was necessary for the jury to make a unanimous finding that he either falsely represented that he was the secretary of the various companies when he wasn't or that he had authority to enter into the transactions into which he entered, or both. I don't know exactly what the jury determined, however I would be amazed if they did not find that he was guilty in relation to both of those matters." 29 This is not a matter that a sentencing judge should have left to him on the basis of speculation. I mention this as one specific practical application of the doctrine of duplicity in the particular circumstances of this case. 30 There are other reasons for the application of the doctrine of duplicity referred to in the authorities I have mentioned. It is not necessary to go into other reasons for the doctrine. The doctrine exists. As a matter of law the indictment presented in the present case was not in accordance with the law. For that reason the appeal with respect to the conviction on counts one to six should be allowed. 31 The next issue that arises is the question of whether or not this Court should direct a verdict of acquittal. The second ground of appeal is described in accordance with what has become customary in this State as the "unsafe and unsatisfactory" ground. This terminology is no longer appropriate. 32 As the High Court recently said: "The fundamental point is that close attention must be paid to the language of s6(1) of the Criminal Appeal Act. Use of the potentially confusing phrase 'unsafe and unsatisfactory' to cover the several different elements in the subsection is liable to mislead. There is no substitute for giving attention to the precise terms in which s6(1) is expressed." ( Fleming v The Queen [1998] HCA 68; (1999) 73 ALJR 1; (1998) 158 ALR 379, at [12]). 33 The provisions of the Criminal Appeal Act 1912 commence with s5(1) which provides: "(1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone,..." And there are other subparagraphs which it is not necessary to set out. 34 Section 6(1) provides: "The court on any appeal under s5(1) against conviction shall allow the appeal if it is of the opinion that 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, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; ...". The section goes on to set out the proviso which is not presently material. 35 Subsection 6(2) is: "Subject to the special provisions of this Act, the court shall, if it allows an appeal under s5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered." 36 The provision of particular relevance for present purposes is s8 which provides in s8(1): "On an appeal against conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make." 37 It can be seen, subject to the proviso, s6(1) states that a court shall allow an appeal if it forms the opinion that the verdict of the jury should be set aside on any one of four grounds: (i) it is unreasonable; (ii) it cannot be supported having regard to the evidence; (iii) on the ground of a wrong decision of any question of law; (iv) on any other ground whatsoever there was a miscarriage of justice. 38 The issue that falls to be determined in this case is whether or not s6(2) should be permitted to operate in accordance with its terms. 39 As I indicated in R v Johnson NSWCCA 31 July 1998: "Considering what order should be made the Court must have in mind the interconnection between s6 and s8 of the Criminal Appeal Act 1912. Subsection 6(2) states that the Court 'shall' direct a judgment and verdict of acquittal, but this is 'subject to the special provisions of the Act'. Section 8 is a 'special provision' and provides that a new trial may be ordered if the miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order, relevantly, a verdict of acquittal". 40 Much of what has hitherto been identified under the "unsafe and unsatisfactory" ground of appeal is encompassed within the formulation in s6(1) of "on any other ground whatsoever there was a miscarriage of justice". 41 Frequently this ground of appeal has relied upon other grounds for their cumulative effect. It is not necessarily the case that any such basis for allowing an appeal will lead to the Court directing a verdict of acquittal. However, in the way submissions in this Court have hitherto been structured, the subheading "unsafe and unsatisfactory" ground has been regarded as a code word for such a submission. 42 The form of the Criminal Appeal Act 1912 is to provide for a verdict of acquittal as the default order, subject to the operation of what is described in s6(2) as the "special provisions of this Act". 43 "Unsafe and unsatisfactory" is not, as such, a separate ground of appeal acknowledged in those terms by the legislative scheme. It has been convenient to use this formulation in the past for the purposes of separately identifying a ground of appeal, usually drawing on other grounds of appeal in a cumulative way, which is said to justify a verdict of acquittal rather than an order for a new trial. 44 It will be preferable in future to identify the ground of appeal as "miscarriage of justice" or the other terminology in accordance with s6, with an appropriate degree of particularity in any heading. However, a distinct section of the submission should refer to the nature of the order sought on a successful appeal, perhaps under the heading "Verdict of Acquittal", if that is what the Appellant contends should be the result of success in the appeal. 45 Insofar as the alternative is seen to be an exercise of the discretion of the Court under s8 of the Act, the submissions of the Appellant should address the proposition as to why it is not the case that the miscarriage of justice would be "more adequately remedied by an order for a new trial". It is clear that the reference to "miscarriage of justice" in s8 refers to each of the four separate matters referred to in s6(1) as I have summarised them above. 46 The exercise of the discretion of the Court under s8(1) is considered in such authorities as Director of Public Prosecutions (Naru) v Fowler (1984) 154 CLR 627 especially 630; King v The Queen (1986) 161 CLR 423 especially 426-427,433. 47 As I have said above, a verdict of acquittal was pressed in this case. 48 Reference was made to an absence of evidence as to whether or not the Appellant was proven not to have been a secretary of the relevant corporation. In my view there was evidence of a character which could be accepted. Reliance was placed on an assertion that there was an absence of evidence as to knowledge of material particularity. It is not necessary to go over the evidence but in my view there was evidence of a character open to be accepted by the jury on that issue. 49 More significantly in this case, it would be a travesty of the legal process if this Court failed to order a new trial in view of the way the trial Judge approached sentencing with respect to the seventh count, from which there is no appeal. It is understandable there is no appeal in view of the sentence for this, the more serious of the charges being a sentence of a bond. 50 The first six counts, as I have mentioned, were for breach of s178BB of the Crimes Act for which the maximum penalty was five years, however the seventh count was for contravention of s176A of the Crimes Act for which the maximum penalty was ten years. 51 The count from which there is no appeal relates to the entry on 19 February 1991 of the document entitled "Security Over Deposit Agreement", with the State Bank. The Crown case was that the Appellant had deceived the Bank by pretending he had the relevant authority. This put the Bank at risk of loss sufficient, on the Crown case, to satisfy the element of "cheat or defraud" in the offence. 52 When his Honour came to sentence his Honour concluded with respect to all counts as follows: "The crimes were separate and distinct and deserving of individual punishment. I will not, however, accumulate the sentences. I propose to deal with the matter by the imposition of concurrent fixed terms and a lengthy bond. In relation to the prisoner's convictions on the first six counts he is sentenced to imprisonment for a fixed term of two years and nine months. That sentence is to commence on 22 May 1998 and is to expire on 21 February in the year 2001. In relation to his conviction on the seventh count, I defer passing sentence upon him. I order that he be bound over on recognisance himself in the sum of $1000 to be of good behaviour during the period of five years from today, and to appear to receive sentence if called upon to do so at any time in respect of any breach of the said period ... That recognisance will offer him the opportunity for rehabilitation and will alleviate the necessity to fix an additional term". 53 It is plain that his Honour took into account the totality of the criminality. The Appellant appeals from counts one to six only in circumstances where it is plain that his Honour has fashioned the sentence in a particular way to achieve a particular result. It is inconceivable that his Honour would have sentenced the Appellant to a recognisance only on the seventh count, if that had been the only charge. 54 It may appear at first impression that this is a classic case for the Court to invoke its powers under s7(1) of the Criminal Appeal Act 1912 which provides: "7(1) If it appears to the court that an appellant on an appeal under s5(1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefore as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted." 55 It is accepted by both counsel appearing in this case that by reason of the decision of the High Court in Ryan v R (1981) 149 CLR 1 it is not open on the view of the majority in that case to apply s7(1) in the present case. Some reference was made by the Crown to the view of his Honour Brennan J but this did not represent the majority view as laid down in that case. There are certain exceptional circumstances in which provisions equivalent to s7(1) have been applied but it is not suggested that that is such a circumstance here. 56 The view of the majority in Ryan was that in circumstances where the Court of Appeal does not have before it for consideration the conviction on the other count, it would not be appropriate for the Court to be satisfied that the Appellant was "properly convicted" within the meaning of s7(1). The view was expressed that the fact that there was no appeal from that count was not a sufficient basis for any assumption to that effect. I agree with the submission that it is not open to the Court to exercise the power under s7(1) in cases of that character. 57 The only way that the considerable inconvenience associated with a retrial could conceivably be avoided in such cases is if the Crown were to lodge an appeal against the sentence with respect to the count on which a conviction was entered, but no appeal is brought. 58 In the present case his Honour was entirely entitled to shape the nature of the sentence in the way that he did applying the principle of totality. However, it is not open to this Court to review that sentence with a view to deciding whether or not all the parties should be put through the difficulties of a further trial. 59 In my view the appropriate order for the Court is to allow the appeal and in accordance with s8 of the Criminal Appeal Act 1912 order that a new trial be conducted. 60 ABADEE J: I agree. 61 ADAMS J: I also agree. 62 SPIGELMAN CJ: The orders of the Court are as I have indicated. The appeal is allowed, the conviction is quashed on the six counts, a new trial is ordered.

Regina v GIAM

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