Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Allan (1965) 1 QB 130

Anetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Armitage v The Queen [2000] WASCA 197

Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576

Brennan v The King [1936] HCA 24; (1936) 55 CLR 253

Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432

Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Giorganni v The Queen [1985] HCA 29; (1985) 156 CLR 473

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590

HG v R [1999] HCA 2; (1999) 160 ALR 554

Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993

K v R, unreported; CCA SCt of WA; Library No 980276; 22 May 1998

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108

Mickelberg v The Queen (No 2) (1989) 4 WAR 497

Mill v The Queen (1988) 166 CLR 59

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Olbey v The Queen (1980) 1 SCR 1008

Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580

Pfenning v The Queen [1995] HCA 7; (1995) 127 ALR 99

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Beck [1990] 1 Qd R 30

R v Charles (1976) 68 Cr App Rep 334

R v Clarkson (1971) 55 Cr App Rep 445

R v Conley (1982) 30 SASR 226

R v Courtney-Smith (No 2) (1990) 48 A Crim R 49

R v Everett & Lewis (1980) 2 A Crim R 60

Rv GP [1997] 93 A Crim R 351

R v Guldur (1986) 8 NSWLR 12

R v Ireland [1970] HCA 21; (1970) 126 CLR 321

R v Kerekes (1951) 70 WN (NSW) 102

R v Lars (aka Larsson) (1994) 73 A Crim R 91

R v Oliver (1994) 57 ALR 543

R v Osenkowski (1982) 30 SASR 212

R v Patel [1981] 3 All ER 94

R v Perera [1986] 1 Qd R 211

R v Solomon [1959] Qd R 123

R v Torney (1983) 8 A Crim R 437

R v Veverka [1978] 1 NSWLR 478

R v Wing Keong Chan (1983) 38 A Crim R 337

Republic of Costa Rica v Erlanger (1876) 3 Ch D 62

Rogers v The Queen (1994) 181 CLR 251

RPS v R [2000] HCA 3; (2000) 168 ALR 729

Saunders v The Queen [1980] WAR 183

Sikaloski v The Queen [2000] WASCA 63

Ward v The Queen (1997) 19 WAR 68

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

1 PIDGEON J: I agree with the reasons to be published by Parker J and with the orders proposed.

2 WALLWORK J: I agree with Justice Parker's very comprehensive reasons for judgment in this case. There is nothing I wish to add.

3 I also agree to the orders which are proposed by his Honour.

4 PARKER J: The applicants are husband and wife. Between 1 and 16 March 2000 they were jointly tried before Charters DCJ and a jury in the District Court on an indictment which alleged against both applicants 10 counts of gaining a pecuniary benefit by fraud, contrary to s 409(1)(c) of the Criminal Code. The offences were alleged to have been committed at Cannington on various dates between May 1994 and February 1995.

5 Both applicants were acquitted by direction on count 10, because of a problem with the prosecution evidence. Mrs Schokker was acquitted by direction on count 3, the material prosecution witness having identified Mr Schokker but failed to identify Mrs Schokker as the woman who was with Mr Schokker on the relevant occasion. Verdicts of guilty were returned against Mr Schokker on count 3 and both applicants on the remaining counts.

6 On 24 March 2000 Mr Schokker was sentenced in respect of his nine convictions to be fined a total of $17,000. Mrs Schokker was sentenced in respect of her eight convictions to be fined a total of $16,000.

7 The applicants seek leave to appeal against their convictions and against the sentences imposed.

8 At the trial the applicants were each separately represented by counsel. On these applications for leave to appeal, however, they are not represented. Very extensive written submissions have been prepared by the applicants and these were supplemented by oral submissions which were made on behalf of both applicants by Mr Schokker. At many points in the submissions, however, the applicants make factual assertions which are not grounded in the evidence led at the trial. These applications will be determined, of course, on the evidence before the jury.

9 With respect to the nine counts in the indictment which resulted in convictions the essence of the Crown case on the indictment was that the applicants had, on nine distinct occasions over some eight months, bought a second hand car, usually at auction, and then quickly advertised and resold the car at a higher price from their home. On the resale false representations were made which induced the purchaser to buy. In the case of each of the nine vehicles it was the Crown case that, between the purchase of the vehicle by the applicants and the resale, the odometer was wound back so that in every count, except count 1, it was the Crown case that the offering of the vehicle for sale with a false odometer reading constituted a false pretence by conduct. The purchaser in count 1 had not relied on the odometer. In respect of counts 4 and 9 there was also evidence that there was a false oral representation by Mr Schokker as to the kilometres the vehicle had travelled as shown on the odometer. In the case of counts 1, 2, 5, 6, 8 and 9 it was the Crown case that false representations were also made concerning the length of time the vehicle had been in the possession of the applicants. The Crown also led evidence of what it alleged were further false representations made in respect of a number of the counts although these were not relied on for the purpose of constituting the offence charged.

10 It was the Crown case, however, that these further representations were relevant to demonstrate inter alia guilty knowledge by the applicants of the rewinding of the odometers, that the applicants were acting together whether as principal or aider in the commission of the offences, and fraudulent purpose.

11 The Crown adduced evidence as to the odometer reading at the time of the purchase of each vehicle and of the lower reading at the time of its resale. There was no direct evidence, however, of the means by which the odometers were wound back or to directly connect either of the applicants with the winding back.

12 It was the Crown case that the vehicles the subject of counts 1 and 3 were purchased in the name of Mr Schokker when they were acquired and that the vehicle the subject of count 9 was, by Mr Schokker's direction at the time of purchase, purchased in the name of a relative. The other vehicles were purchased in the name of Mrs Schokker although Mrs Schokker was not present when the vehicle, the subject of count 6 was purchased and Mr Schokker actually signed the acquisition papers for that vehicle and some of the other vehicles. It was the Crown case that both applicants attended the motor auction or saleyard when the vehicles were purchased, except for count 6 when Mr Schokker acted alone, and that, except for count 3, both applicants dealt with the purchasers when the vehicles were resold.

13 In the absence of direct evidence the Crown relied on inference to establish or to support its case that each of the applicants was a party, whether as principal or aider, in the commission of the offences charged, except of course for count 3, and in particular to establish that each of them was aware that the odometers had been wound back after the vehicles had been acquired and before they were resold. It was the Crown case that when the circumstances of all counts over some eight months were taken into account it was open to the jury to be satisfied beyond reasonable doubt of the guilt of each of the applicants of each of the offences being considered by the jury, ie to the extent that inferences consistent with innocence might be open on the evidence relating to a particular count, the circumstances of the other offences in combination were such that the jury might properly be satisfied beyond reasonable doubt that competing inferences consistent with innocence had been displaced, and so be left with guilt as the only reasonable inference.

14 Mr Schokker gave evidence at the trial but Mrs Schokker did not. It may generally be said that it was the defence case of each applicant at trial that the Crown had failed to establish that the odometers were rewound during the periods between the acquisition of the vehicles and their resale, or that either of the applicants had any part in the rewinding of the odometers or knowledge that this had occurred. Further it was the case of each of the applicants that nothing shown to be said by them was false, and nothing done by them constituted a false representation, and that in respect of each count it had not been established that the purchaser had placed reliance on, ie had been induced by, the matters relied on by the Crown as the material representation or representations.

15 More particular issues were also raised in respect of the various counts.

16 A 1981 Ford Fairlane with country number plates was acquired at auction in the name of Mr Schokker on 5 May 1994. It was the Crown case that the odometer reading was 292,422 kilometres at the time of acquisition. The Fairlane was then advertised for sale. The purchaser went to the applicants' home with her husband and son and met Mr and Mrs Schokker on 19 May 1994. Mrs Schokker did most of the talking. The purchaser was told a number of things. The applicants needed to sell the car to buy a smaller one. Mrs Schokker had hurt her back and found it difficult to drive the Fairlane because it was big. They had recently moved to the city and only needed a smaller car for getting around town. Mrs Schokker also said that the Fairlane was a good comfortable car, "Its been a good family car", and "It's a good car for country use". It was the evidence of the purchaser that the effect of what was said to her was to lead her to believe that the applicants had had the car for a number of years. This, in her evidence, was a determining factor in her decision whether or not she bought the car. Had she known that the applicants had owned the car for only 14-15 days she would not have bought it. In respect of count 1 while it was the Crown case that the odometer had been wound back it was not relied on as a material inducement because of the evidence of the purchaser as to her reasons for buying the car. It was the case for Mrs Schokker, who did not give evidence at the trial, that nothing she said to the purchaser induced the purchaser to buy the vehicle as she relied on her husband and son. Further, that nothing said by Mrs Schokker was actually false. It was the case for Mr Schokker that he made no representations to the purchaser himself, the evidence did not establish that he heard anything said by his wife, and the evidence did not establish that he had any knowledge of a false odometer reading. It was his evidence that while the vehicle had been registered in his name that was a mistake and it had in truth been purchased by his wife and he had not signed any papers. It was also Mr Schokker's case that the purchaser relied on her husband and son not on anything said. It was also the case advanced for both applicants at trial that if the purchaser had gained any false impression as to the length of time the applicants had had the Fairlane, this was due to a comment made by Mrs Schokker after the sale had been concluded, not to anything said during the negotiations.

17 A 1983 Holden Camira was acquired at auction in the name of Mrs Schokker on 21 May 1994 at which time it was the Crown case that the odometer read 178,502 kilometres. When the purchaser went with her father to the Schokker's home on 29 May 1994 in response to an advertisement the odometer reading was about 142,000 kilometres. It was the purchaser's evidence that she asked Mr Schokker how long they had had the car and he replied he had had it for a fair while and that it was mainly his wife that drove the car. He was only selling it because his wife was giving up work and they were going on a holiday. It was the purchaser's evidence that Mrs Schokker told her that they had had the car from new and that they were selling it because they were going on a holiday; although she really liked the car and didn't want to get rid of it they were going on a boating holiday and were selling everything. It was the Crown case that both the odometer reading and the representations as to the time the vehicle had been owned induced the purchase of the vehicle. An offer for purchase was made following a test drive during which Mr Schokker accompanied the purchaser and her father. The sale papers were completed by Mrs Schokker. It was the case for Mrs Schokker at trial that it had not been established that she had any knowledge of the false odometer reading and that the purchaser had not relied on the odometer or anything said by Mrs Schokker. It was Mr Schokker's evidence that he had not made the representation ascribed to him in the evidence. Further, it was his case that there was no proof that he had knowledge of the false odometer reading and that the Crown had not established that the purchaser relied on the representations alleged. It was Mr Schokker's evidence that he had actually said to the purchaser and her father that they couldn't rely on an odometer reading in a car of that age.

18 A 1984 Holden Camira was acquired at auction in the name of Mr Schokker on 7 June 1994. It is the Crown case that the odometer reading was then 208,896 kilometres. The purchaser went to the applicant's home on 19 June 1994 where he met Mr Schokker and a lady whom he did not identify. It was the effect of his evidence that he looked at the odometer and saw it was in the low 100,000 kilometres, it seems less than 122,634 kilometres. Although he had asked how long the vehicle had been owned he was not able to recall at trial the answer given. The Crown relied on the odometer reading as the inducement. It was Mr Schokker's evidence and case at trial that he had no knowledge of the odometer having been rewound or of the odometer reading when the vehicle was purchased. It was his evidence that Mrs Schokker had acquired the vehicle but it had been transferred to him in error. For that reason he in turn transferred the vehicle to the purchaser on resale. It was also Mr Schokker's case at trial that it had not been established that the purchaser relied on the odometer reading, in particular because he was not able to say what the actual odometer reading was.

19 A Laser Ghia was acquired in the name of Mrs Schokker at auction on 18 June 1994 at which time it was the Crown case that the odometer read 202,603 kilometres. The vehicle was resold on 25 June 1994, the purchaser having answered an advertisement and spoken first to Mr Schokker on the telephone. In response to a question he was told by Mr Schokker the odometer read one hundred and something thousand kilometres. He then went to the home of the applicants and dealt with both of them. One or other of the applicants said they were selling the car because they were moving house and he noted that the odometer read between 100 and 120,000 kilometres. It was Mr Schokker's evidence that he had no knowledge of any rewinding of the odometer and he had not known of the odometer reading at the time of the acquisition of the vehicle. It was also the case for both applicants that the purchaser's evidence was not reliable because of his character, that reliance had not been established especially as the purchaser was in effect a regular dealer in vehicles and would not have placed any reliance on an odometer reading, and that it had not been established that either applicant had knowledge of the odometer being wound back.

20 It was the evidence that a 1983 Nissan Pulsar was purchased in the name of Mrs Schokker at auction on 21 July 1994. It was the Crown case that at that time the odometer reading was 227,929 kilometres. The purchaser went to the home of the applicants in response to a newspaper advertisement on 1 August 1994. He spoke to Mrs Schokker who made a telephone call and Mr Schokker arrived. When the purchaser asked if there was anything wrong with the car Mrs Schokker replied "No, we bought it from a young girl a year or so ago". The purchaser noted the odometer read between 128,000 and 129,000 kilometres. After agreeing to buy the car he paid a deposit that day and the balance the following day to Mr Schokker. It was the case for Mrs Schokker that the evidence of the purchaser was unreliable and insufficient to establish either the alleged representation or reliance and there was no evidence that she knew of a false odometer reading. It was the case for Mr Schokker and his evidence that he had no idea of the odometer reading when the car was purchased or that the odometer had been rewound. It was his wife who had sold the car. He made no oral representation and that there was no evidence of his knowledge that anything false was said by his wife and that the evidence of the purchaser was unreliable and inadequate for the reasons relied on by Mrs Schokker. In this last respect there was also evidence adduced of a statement made by the purchaser to a private enquiry agent retained by the applicants which differed in some material respects from the purchaser's evidence at trial. But the statement was written in English by the enquiry agent and the purchaser had only recently arrived in Australia and had little knowledge of English. Thus there was a clear issue for the jury's consideration as to the credibility and reliability of the purchaser's evidence but the issue was well explored during the evidence and in submissions so there is no reason to think that the jury were not able adequately to resolve this issue..

21 This concerned a Ford Falcon which was acquired at auction by Mr Schokker on 11 August 1994 but in the name of Mrs Schokker. On the Crown's case the odometer then read 202,418 kilometres. It was sold two days later after the purchaser had answered an advertisement and gone to the home of Mr and Mrs Schokker where he dealt with both of them. It was the purchaser's evidence that the odometer reading was then between 143,000 and 145,000 kilometres. It was his evidence that Mr Schokker had told him earlier on the telephone that the car had been used for family purposes travelling to and from shops. It was also the purchaser's evidence that Mr Schokker had said the vehicle was too big for them and that was their reason for selling it. Mr Schokker signed the transfer documents but Mrs Schokker had signed the receipt when the balance of the purchase money was paid. It was the case for Mrs Schokker that she had made no oral representation and there was no evidence that she was aware of anything said by her husband and that it was not shown that she had any knowledge of the rewinding of the odometer. It was the evidence of Mr Schokker that he had made no representations at all and he denied the evidence of the purchaser. Further, he knew nothing of the odometer reading on purchase or of any rewinding of the odometer. He did, however, accept in the course of his evidence that he may have said something to the effect "Its Jacquie's car", "She had it a while" and "She took it to and from the shops." But it was his evidence that none of those statements was false as she had had the car for two days and she had driven it to the shops. It was denied that anything said could amount to a representation that the car had been hers for a significant period of time.

22 A Holden Commodore station wagon was acquired in the name of Mrs Schokker from a used car yard on 24 September 1994. Mr Schokker was present when the vehicle was acquired. It was the evidence of the salesman who sold the car that he had noted the odometer that day and recorded it at 295,390 kilometres and entered this figure on the sales contract before it was signed by Mrs Schokker. The purchaser telephoned in response to a newspaper advertisement on 9 October 1994 and having spoken to Mrs Schokker he then inspected the vehicle, meeting both the applicants. After a test drive he noted and recorded the odometer reading as 156,017 kilometres. It was the purchaser's evidence that Mrs Schokker signed an exhibited form which recorded that reading. It was the case for Mrs Schokker that the evidence did not reveal she knew of any falsity in the odometer reading or that she had made any false representations as to the odometer reading and did not reveal that she had any knowledge of any rewinding of the odometer. It was the case of both applicants that the purchaser had not relied on the odometer reading, despite his evidence, as the purchaser was a car dealer and would have known that odometers were not reliable in vehicles of that age. It was the evidence of Mr Schokker that the form signed by Mrs Schokker on the resale was blank when she signed it and he questioned the evidence of the purchaser and its reliability as to the odometer reading at the time of sale. It was also Mr Schokker's evidence that he had no knowledge of the odometer reading at the time the vehicle was acquired and he knew of no change to the odometer reading.

23 A Mitsubishi Sigma sedan was purchased in the name of Mrs Schokker at auction on 12 November 1994 at which time, on the prosecution evidence, the odometer read 168,299 kilometres. The purchaser had answered an advertisement for another vehicle but came to be shown the Sigma by the applicants. It was the purchaser's evidence that Mrs Schokker had told her they had had the car for 18 months to 2 years and it was being sold as she was no longer going to work so they were going to try having only one car. The odometer reading was about 139,000 kilometres when it was resold on 25 November 1994. Mr Schokker made out a receipt for the deposit and Mrs Schokker gave the receipt when the balance of the purchase money was paid. It was the case for Mrs Schokker at trial that the jury should not be satisfied that she knew of the odometer reading at the time the vehicle was acquired or that she had any knowledge that the odometer had been rewound at the time of resale and that the jury should not be satisfied that the purchaser had relied on the odometer reading or any oral representation. It was the evidence of Mr Schokker that apart from being there and giving the receipt he had no part in any representations and that the evidence did not show he had any knowledge of anything said by his wife. It was also his evidence that the purchaser had in truth relied on the opinion of a friend who was with her, rather than on anything that might have been said or on the odometer reading, and that her real concern was as to the safety of the vehicle. It was also the case for Mr Schokker that it had not been shown he had any knowledge of the odometer reading at the time of acquisition or that it had been rewound.

24 Another Sigma sedan was purchased at auction on 12 January 1995 at which time it was the prosecution evidence that the odometer read 196,925 kilometres. At the time of acquisition Mr Schokker directed the car auction yard that the vehicle be transferred to a Dion Shillito, a relative of the applicants. The purchasers telephoned in response to a newspaper advertisement on 15 January 1995 and spoke to a male and when asked he was told that the car had done 137,000 kilometres which he wrote down on the advertisement. The purchasers then went to the applicant's home where Mr Schokker said that it was Mrs Schokker's car and she used it mostly for shopping. It was the purchaser's evidence that Mrs Schokker said the car had been in the family for a while. The purchaser confirmed the odometer reading. It was the case for Mrs Schokker that she made no false representation and there was no evidence that she knew of any representation made by her husband or that she knew of the odometer reading at the time of acquisition or of any change to the odometer reading. It was Mr Schokker's evidence that he had purchased the car in the name of his son-in-law but the son-in-law did not like the car so it had been resold. It was his evidence that he had no knowledge of the odometer reading at the time the car was acquired. He accepted that he may have told the purchaser that the odometer read 137,000 kilometres and he did not dispute that that was the reading at the time the vehicle was resold. It was his evidence that he had no knowledge of the odometer having been rewound. It was the case for Mr Schokker that the jury should not accept that anything said as to Mrs Schokker's use of the vehicle was material to the decision of the purchaser to buy the vehicle or that anything said had been shown to be false as the vehicle had been in the family for a while, ie 3 days, and had been used by his wife to go to the shops and his wife had been the real purchaser. It was also the case for Mr Schokker that the jury should not accept that he had any knowledge of the rewinding of the odometer and further the difference between the two readings was relatively small and the jury should not accept that that difference would have been material to the purchaser's decision to buy the vehicle. It was Mr Schokker's evidence that the purchaser had expressed some doubt about the odometer reading which was another reason for doubt that reliance was placed on the odometer reading.

25 As mentioned earlier Mrs Schokker did not give evidence at the trial. In his evidence, Mr Schokker asserted that the car trading was a therapeutic hobby of his wife. While he had driven her to buy each of the cars, except for count 6 when she was not present, he did so merely as a chauffeur and in truth she had purchased all of them although he accepted that he may have offered her advice. While he had been recorded as the purchaser for two of the vehicles and became registered as the owner that was due to error on the part of the vehicle auction house as he had helped out his wife with the paper work. It was his evidence that he had not know the odometer reading of any of the vehicles when they were purchased, even though in some cases he had signed statutory forms which recorded the odometer reading. He said he had signed in a hurry and had not noticed the odometer readings. He had not altered any of the odometers or arranged for that to be done and he was not aware of his wife having altered any odometer or having arranged for that to be done. He added that while it was possible it was not probable that his wife could have wound back the odometers or arranged for that to happen without his knowledge.

26 The arguments advanced for the applicants pursuant to these grounds are that there was no evidence capable in law of supporting the verdicts of guilty and that alternatively the verdicts are unsafe and unsatisfactory.

27 At the hearing the argument primarily advanced is that the evidence led at the trial was not sufficient to establish that the odometers were altered after the vehicles were acquired, whether acquired by one or other or both of the applicants, and before the vehicles were resold. In this respect the case concerning count 7 differed from the other counts. The vehicle, the subject of count 7, had been acquired from a car salesyard whereas the other vehicles were bought at car auctions. With respect to count 7 there was evidence from the salesman at the car yard that he checked the odometer reading on the day of the sale and recorded it from the odometer reading. That reading was recorded on the purchase contract which was completed on a proforma and then signed by Mrs Schokker. Mr Schokker was present. There was also evidence from the person who purchased the vehicle when it was resold by Mrs Schokker. The purchaser was a car dealer and it was his evidence that he checked the odometer after test driving the vehicle and recorded the reading on a statutory form which was then signed by Mrs Schokker. As has been noted earlier the reading recorded at the time of acquisition of the vehicle by Mrs Schokker was 295,390 kilometres and that recorded at the time of resale by Mrs Schokker was 156,017 kilometres. At trial this evidence was disputed on oath by Mr Schokker and in particular it was his evidence that on the resale Mrs Schokker had signed a blank statutory notice. The evidence of both of these witnesses was extensively tested in cross-examination at trial. Nevertheless, there was clearly direct evidence on which the jury could have been satisfied that the odometer of the vehicle, the subject of count 7, was rewound after the vehicle was acquired by Mrs Schokker and before it was resold. It was a matter within the province of the jury to determine what weight if any they should attach to this evidence and to the various matters raised by way of defence about it and to the evidence of Mr Schokker.

28 The remaining vehicles were purchased at auctions conducted by car auction establishments. The statutory system established pursuant to the Motor Vehicle Dealers Act 1973 in respect of such sales provides for a statutory notice, which is a pink coloured form, to be displayed on the vehicle at the time of auction. The statutory notice has provision for two odometer readings to be recorded, the odometer reading when the vehicle was first acquired by the auction establishment from the previous owner and the odometer reading at the time of the sale by auction. These statutory notices are in evidence and in most cases the two readings are the same. The Act requires the dealer to have the purchasers sign this notice after the auction sale. The notice is in a multiple copy form and the dealer is required to hand one copy to the purchaser. The dealer must retain one copy. In most cases the exhibits have been apparently signed by the purchaser but that is not so in every case and in his evidence Mr Schokker disputed that he had actually signed at least one of the forms which appears to bear his signature. It was also the evidence of Mr Schokker at trial that even though seven of the nine statutory notices had been apparently signed by one or other of the applicants neither he nor Mrs Schokker had ever received the purchaser's copy of the statutory notice for any of these vehicles. Hence, he insisted in his evidence, that he did not know and had no means of knowledge of the odometer reading asserted by the auction establishment at the time of sale. He persisted in this evidence even though he had personally signed some of the statutory notices, sometimes using Mrs Schokker's name, as it was his evidence that there was such a time pressure in a busy auction that he had not read the notices he signed.

29 Even though it was Mr Schokker's evidence that he had no knowledge of the odometer reading of any of the vehicles at the time they were acquired at auction, he did assert in his evidence that the odometers must have been rewound before the vehicles were purchased at auction by his wife, or himself for his wife in the case of count 6. He also asserted that they might have been rewound after the vehicles had been resold by Mrs Schokker. These matters were advanced by way of mere assertion or contention in the course of his evidence. Even though this was done without any foundation based in the personal knowledge of Mr Schokker the submissions on appeal rely heavily on these assertions and on further factual assertions made in the course of the submissions.

30 At trial witnesses were called from each of the car auction establishments concerned. In respect of every vehicle there was direct evidence of the odometer reading recorded on the statutory notice being taken from the actual odometer reading of the vehicle. The evidence of the witnesses as to the recording of the readings of the odometers of the vehicles in the car auction establishments was tested extensively at trial as to honesty and reliability and as to the system followed. The evidence indicates that at least some of the vehicles had been put up for auction at more than one sale before the vehicle was acquired by one or other or both of the applicants. That might occur, of course, because a reserve price had not been reached or because there was no bid for the vehicle at an auction. While there was evidence of the odometer reading being taken from the car and recorded on the statutory notice and that this occurred on the day of the sale, in those cases where the auction establishment's records appear to indicate that the vehicle may have been put up at more than one auction, the statutory notice was not always dated on the date of the eventual purchase by one or other or both of the applicants. That is to say that the evidence is capable of supporting the view that the statutory notice was filled in on the day of an earlier auction. The evidence does not indicate, however, that in such circumstances the vehicles were moved in between auction sales. Further, the evidence may well have been accepted by the jury as establishing that the odometer reading was checked on each sale date whether or not a fresh statutory notice form was made out. While the auction establishment's records revealed in the case of some of the vehicles that more than one lot number had been allocated to the vehicle, ie indicating it may have been offered at more than one auction sale, and in the case of the vehicle the subject of count 4 a reserved price had been noted but crossed out and the eventual sale was at a figure less than the noted reserve, in respect of the other vehicles there was nothing in the evidence to indicate even the possibility that they had been offered at more than one auction.

31 The yard manager of one of the auction establishments, Mr Swaine, accepted at one stage in cross-examination that it was possible that at an auction a vehicle could be sold "internally" and then resold at a subsequent auction, although the same witness also gave evidence that he did not think that happened. From this evidence the view was open to the jury that it was possible that a staff member of the auction establishment had bid in the course of an auction and that one or more of the eight vehicles may have been knocked down to a staff member, in which event the vehicle would then be put up for sale again at the next auction. The evidence from Mr Swaine did not take this possibility any further, however, nor did any other evidence save, that is, for some assertions by Mr Schokker as to what may have or would have occurred.

32 On the foundation of this evidence of Mr Swaine and the fact that some of the vehicles appeared to have been offered at more than one auction before being acquired by one or other or both of the applicants, it is submitted for the applicants that the evidence establishes or gives rise to the reasonable possibility that individual staff members of the auction establishments purchased vehicles in their own right and thereby had both the motive and the opportunity to rewind the odometers so that the vehicles, when put up at for sale at a later auction, might fetch a higher price to the financial advantage of the staff member. There are a number of problems with this. The evidence simply does not go as far as the submission would take it. While the evidence could support the possibility of an internal or dummy sale, there is no evidence at all that it was a genuine sale to the staff member, or that the staff member actually paid for the vehicle, or that the vehicle was actually transferred to or became the property of the staff member, or that a staff member would be able to remove the vehicle from the auction premises or by some other means have an opportunity to rewind the odometer. The statutory and other records of the auction establishments do not record any such sale, or payment, or transfer to a staff member, and despite extensive cross-examination of Mr Swaine and other witnesses from the auction establishments their evidence provides no foundation for there having been a genuine sale to a staff member or for a staff member having any opportunity, or personal interest, to rewind an odometer. Further, the "possibility" relied on has the rather glaring difficulty that it involves the vehicle then being offered for sale at auction with a lower odometer reading than that shown on the statutory notice displayed on the vehicle at the time of sale as being the odometer reading when the vehicle was acquired by the auction establishment from the previous owner, and of the vehicle being sold at auction with an odometer reading lower than the other reading shown on the statutory notice as the odometer reading at the time of the sale by auction. Given that this statutory notice is to be expected to be sighted and signed by the purchaser at the ultimate auction sale and a copy retained by that purchaser, in my view, it beggars belief that this did occur or could have occurred on any one of the eight separate occasions with which this trial was concerned. In my view it was properly open to the jury not to entertain a reasonable doubt in respect of any one of the eight relevant occasions that the odometer may have been rewound before the vehicle was acquired at auction. The assertions or unsupported contentions of Mr Schokker at trial take the matter no further, nor do the many further assertions or unsupported contentions which were advanced in the course of the submissions.

33 In my view, the evidence as to the odometer readings of each of the eight vehicles purchased at auction was well capable of being accepted by the jury as establishing that each of the vehicles had the odometer readings shown on the statutory notice at the time each was acquired by one or other or both of the applicants at auction sale. And the evidence as to the odometer reading of the vehicle the subject of count 7 purchased from a car dealer's yard was well capable of being accepted by the jury as establishing that the vehicle had the odometer reading shown on the contract of sale at the time of its acquisition by Mrs Schokker.

34 There was also an adequate evidentiary foundation provided by the evidence, in particular of the purchasers, upon which the jury may properly have been satisfied that in the case of each of the nine vehicles the odometer reading of the vehicle was lower when it was resold by one or other or both of the applicants than when the vehicle was acquired a matter of days earlier. That being so, it was well open to the jury in respect of each count to conclude that one or other of the applicants had rewound the odometer or was responsible for the odometer being rewound before the vehicle was resold.

35 It is then submitted for the applicants that even on the hypothesis that the jury might be satisfied that one or other of the applicants was responsible for the rewinding of the odometers it was not open on the evidence for the jury to find, in respect of any of the 9 counts, which of the applicants was the person so responsible. There was of course no direct evidence as to when or how or by whom any of the odometers was rewound. Nor is there any evidence of conduct by either of the applicants which could constitute aiding the other applicant to rewind an odometer or to arrange for that to be done. Nor is there direct evidence that either applicant was told by the other that the odometer of any of the vehicles had been wound back or otherwise knew that this had occurred. Thus, it is submitted, even on the hypothesis being considered, while one of the applicants may have been responsible for the odometer being wound back, in each case one inference open on the evidence is that the other applicant was not told that this had occurred and acted without knowledge that the vehicle being resold had a rewound odometer. Such knowledge was essential if that applicant was to be guilty of the offence charged, whether as a principal or as an aider. That being so, and as the evidence did not directly identify which of the applicants was responsible for winding back each of the odometers, it necessarily follows, in the submission of the applicants, that neither applicant could be convicted on the evidence in respect of any count in which a false odometer reading was relied on as a material representation.

36 The submissions for the applicants fail, however, to have due regard to the overall evidence. This was well capable of demonstrating the joint participation of the applicants in the process of acquisition of eight of the vehicles, (only Mr Schokker for count 6 though in the name of Mrs Schokker) and their joint participation in the process of resale of eight of the vehicles (only Mr Schokker for count 3). It was also well capable of satisfying the jury that the odometer reading of each of the vehicles was lower at the time of resale than acquisition and therefore that the rewinding occurred in the days between acquisition and resale. The jury may also have been satisfied that other false representations were made, variously by one or other or both of the applicants, when some of the vehicles were being sold, and that some of these representations, made by each of the applicants, had a clear tendency to suggest a limited domestic use by the applicants and therefore support the lower odometer reading on the vehicle. Also relevant to the jury's assessment of knowledge, despite Mr Schokker's denial of knowledge, was the signing in most cases by one or other of the applicants of the statutory notice or a contract of sale which showed the higher odometer reading at the time of acquisition. The jury may also have considered it to be highly unlikely that in each case the odometer reading was ignored at the time of acquisition when, as the jury may well have been satisfied despite some contrary evidence in respect of some counts from Mr Schokker, each acquisition was made with a view to a quick resale.

37 In my view, having regard to all of this, it was properly open to the jury to be satisfied in each case that one or other of the applicants was responsible for the odometer having been wound back, and that this occurred with the knowledge of the other, and that in each case whichever of the applicants was actually effecting the resale of the vehicle that applicant then knew of the false reading of the odometer, and the other of the applicants knew also. The overall circumstances of the nine sales was such that, in my view, it was well open to the jury to be satisfied that there was a pattern or system of conduct involving the active and knowing participation of both applicants in all counts (although Mr Schokker acting alone in the actual resale in count 3) so as to displace, as a reasonable possibility, that one of the applicants may have acted in ignorance of the rewinding of the odometers.

38 It is next submitted that it had not been shown that the applicants made any representation about any odometer readings. I have already indicated that there was some evidence of direct representations as to the odometer readings by Mr Schokker in respect of counts 4 and 9, it being a matter within the competence of the jury to assess the force and reliability of that evidence. That being left aside, however, the point of this submission seems to be that in the absence of direct oral representations there could be no act of deceit or of fraudulent means, ie no false representation, to satisfy that element of the offences charged. In respect of this submission it need only be said that fraud or deceit may be practised by conduct not involving any oral representation, and that to knowingly offer a vehicle for sale with a rewound odometer so that it reads significantly less than the true reading is well capable of being accepted by the jury as constituting the element of deceit or fraudulent means, ie as being a false pretence for the purposes of the offences charged. A false odometer reading may constitute a constant false representation to a prospective purchaser as to the amount of use the vehicle has had.

39 It is next submitted that given the age of the cars in question it was not open to the jury to accept that any of the purchasers would expect the odometer reading to be reliable. It is said that the condition of the vehicle not the odometer reading would determine whether a prospective purchaser would decide to buy the vehicles in question. On this basis it is contended that it was not open to the jury to have been satisfied in respect of any count that the necessary element of reliance or inducement was established. Views of this nature were advanced at trial, both in the course of Mr Schokker's evidence and by way of defence submissions. The short answer to such contentions is that the jury had the evidence of the individual witnesses as to their reasons for deciding to buy the vehicles and as to the relevance to them of the odometer reading. That evidence was tested by cross-examination and it was the province of the jury to evaluate the force and reliability of that evidence in the light of the various considerations which had been advanced, including the point now being considered. There is no reason to conclude that it was not open as a matter of law to the jury to be satisfied on the evidence that the odometer reading in each relevant case was relied on and was a material inducement in the relevant sense, and there is no basis in my view of the evidence for having any misgiving as to the jury's capacity to deal properly with this issue, or to consider that the jury ought to have entertained a reasonable doubt on this basis in respect of any of the counts.

40 Much the same submission seems to be advanced in respect of the other representation relied on by the prosecution in respect of a number of the counts, ie as to the length of ownership of the vehicle in question. The views I have just expressed apply equally to the evidence as to this representation.

41 Particular submissions are advanced in respect of each count variously to contend that there was no representation, that anything said was not shown to be false, and that reliance or inducement had not been established. In part, these particular submissions go over ground dealt with elsewhere in these reasons and I will try to avoid unnecessary repetition when considering the submissions.

42 Submissions were also advanced which seek to isolate each applicant from any representations made by the other, although principally to isolate Mr Schokker from representations made by Mrs Schokker. This issue has been sufficiently dealt with elsewhere in these reasons. It is sufficient to note my view that on the evidence as to each count except count 3, the jury might properly have found that the applicants were acting together at the time of resale, whether as joint principals or as principal and aider.

43 In part, the submissions seek to deny on a factual basis evidence of conduct by each of the applicants which evidence was relevant to the questions of falsity and of reliance or inducement. Where this was the subject of contrary evidence by Mr Schokker at the trial that gave rise to a factual issue to be determined by the jury who had the rather essential advantage, in this context, of seeing and hearing Mr Schokker and the other witnesses. The submissions seek to advance that much evidence against the applicants of this nature was of little weight, but that was a matter of the jury's evaluation.

44 I will now turn to other particular submissions with respect to each count.

45 With respect to count 1 it is particularly submitted that any representations made had not been shown to be false, nor that they were relied on by the purchaser. There was a factual issue whether the purchaser's belief that the applicants had the vehicle for a quite a time was in truth founded in a comment made after the purchase had been concluded, in which event of course it could not have been an inducement for the purposes of the offence. That factual issue was fully canvassed in evidence and submissions at the trial and the matter was clearly put to the jury in his charge by the trial Judge. It is further submitted that apart from this comment made after the sale there was no other evidence capable of being accepted by the jury as constituting a representation as to the length of ownership. In my view that is not the case. It was the evidence of the purchaser, of course, that she was never told specifically how long the applicants had had the car. That is not the end of the issue however. The vehicle had country registration plates. The purchaser spoke to both applicants when she went to inspect the vehicle. It was the purchaser's evidence that when she asked why they were selling the vehicle she was told by Mrs Schokker they had recently moved up from the country and it wouldn't fit in the garage. It was also said that the applicants had two sons who were growing up, and that Mrs Schokker had hurt her back and found it difficult to drive the Fairlane because it was a big car. Thus, Mrs Schokker wanted a smaller car for getting around town and they needed to sell the Fairlane to buy a smaller car. There was also evidence that Mrs Schokker said to the purchaser at different times as the Fairlane was being inspected to the effect that "It has been a good family car", "It was a good comfortable car", and "It's a good car for country use". A tilt in the driver's seat was also explained as having been caused by Mr Schokker getting in and out, he being a big man. The evidence disclosed that the Fairlane had been acquired only 14 or 15 days earlier in the name of Mr Schokker, the applicants had not moved from the country, and that while Mrs Schokker had been injured in a road accident, this was in 1968. In his evidence, Mr Schokker did assert that Fairlanes had a notoriously weak seat frame, apparently to support the possibility that his getting in and out of the car in the 14 or 15 days may have bent the frame and caused the seat back to tilt, although he did not say this had actually occurred. It was obviously a matter for the jury to determine whether they were satisfied that the things set out in the evidence of the purchaser had been said, but if the jury was satisfied of this it appears to me to have been well open to the jury to conclude from the general effect of what was said that the vehicle had been falsely represented to the purchaser as having been owned by the applicant as their family car for quite some time. This view is open in particular having regard to the comments that it had been a good family car, that it was being sold because the applicants had recently moved from the country and it wouldn't fit in the garage, and that it was being sold because Mrs Schokker needed to sell it because she wanted a smaller car for getting around town. There was explicit evidence from the purchaser that the period of ownership was a factor in her decision to buy and she would not have purchased had she known the vehicle had been owned by the applicants for only 15 days. This matter of reliance was also fully explored in cross-examination and in particular whether the purchaser had relied on her husband and son who were with her rather than on anything said by Mrs Schokker. In my view, it was open to the jury on the evidence to be satisfied as to the element of reliance or inducement despite the various matters raised at trial and now again in submission. It seems to me that these issues raised in respect of count 1 were entirely matters for factual determination by the jury according to their assessment of the witnesses and the evidence.

46 With respect to count 2 it is submitted the purchaser relied on her father's advice not on any representations. This is true in part according to the evidence, but the submission overlooks that it was the prosecution case, which is well supported by the evidence, that father and daughter looked over the car together and that while the oral representations relied on were made to the father by Mr Schokker their effect was to persuade the father who accordingly advised the daughter to buy and she acted substantially on his advice. It is further submitted that the statements which the evidence indicates were made by Mr Schokker to the father that he'd had the car a fair while, his wife mainly drove it, and (in response to a question about the relatively low kilometres) the statement that he hadn't driven it much and it was mainly driven just to and from work by his wife, were not shown to be false. With respect to falsity the submission seeks to limit the meaning and affect of what was said extremely literally and narrowly and to ignore the natural import of what was said. There was also a statement by Mrs Schokker to the daughter that they had the car since new. The evidence is well capable of establishing, however, that in fact the vehicle had been purchased in Mrs Schokker's name only eight days earlier and in that time the odometer had been rewound nearly 40,000 kilometres. Even though Mr Schokker in his evidence denied saying some of these things and asserted that different things had been said it was, in my view, properly open to the jury to accept that these statements were made and that they their intended effect constituted false representations as to the length of time the vehicle had been owned by Mrs Schokker and to support the false odometer reading. The issue of inducement while not necessarily clear cut appears to me to have been one properly for the jury it being open, in my assessment of the record, to the jury to be satisfied that it was substantially by virtue of the representations made by Mr Schokker to the father that the daughter decided to buy, and that this was the foreseen and intended purpose of Mr Schokker's representations.

47 With respect to count 3 it is submitted in particular that the evidence is not capable of establishing that the false odometer reading induced the purchaser to buy. It was his evidence that there were four important considerations in his mind as he looked at the vehicle. One of these was that there had to be a reasonable kilometre reading. The odometer showed some 122,000 kilometres. There was evidence on which the jury could have been satisfied that it had read 208,896 kilometres when purchased in Mr Schokker's name. It was the evidence of the purchaser that he would not have bought the vehicle if it had not been what he expected, and that this vehicle had what he required. He had sold a car earlier that day with an odometer reading of 180 - 185,000 kilometres. In my view, it was well open to the jury from this evidence to be satisfied that the purchaser regarded the odometer reading of 122,000 kilometres as reasonable in the sense he indicated, and that had the vehicle not had a reasonable odometer reading he would not have agreed to buy it. It was also open to them to conclude that an odometer reading in excess of 208,000 kilometres would not have been regarded as reasonable by the purchaser. In my view, it was well open to the jury from this evidence to be satisfied that the false odometer reading was relied on by the purchaser and induced him to buy and he would not have parted with his money had the odometer read over 208,000 kilometres.

48 With respect to count 4 it is submitted there was no evidence that the purchaser had placed any reliance on the precise odometer reading at the time he decided to buy the vehicle. It was open to the jury on the evidence to be satisfied that the odometer had been rewound from a reading of 202,603 kilometres, when it was purchased in the name of Mrs Schokker, to a reading between 100,000 and 120,000 kilometres at the time the vehicle was inspected and the purchaser agreed to buy it. The purchaser was unable to remember the precise reading but it was his evidence that it was between 100,000 and 120,000 kilometres and it was also his evidence that before inspecting the vehicle he was told by Mr Schokker on the telephone that the odometer reading was a hundred and something thousand kilometres. In my view, it was very much a matter of fact for decision by the jury whether or not they were satisfied that the purchaser had a sufficiently reliable recollection of the odometer reading when he inspected the vehicle and whether it was, as he indicated, a reading between 100,000 and 120,000 kilometres. It was also the evidence of the purchaser that he would not have purchased the vehicle with an odometer reading of 202,603 kilometres unless, inter alia it had a new motor. That was not the case. While Mr Schokker disputed the evidence of the purchaser and both at trial and on appeal had much to say against his credibility, it remains the case, in my view, that on this evidence it was open to the jury to be satisfied as to the materiality of the false odometer reading to the purchaser's decision to buy the vehicle and part with his money.

49 With respect to count 5 the evidence was capable of establishing that the vehicle was sold less than two weeks after it was acquired in Mrs Schokker's name and that in that time the odometer had been rewound from 227,929 kilometres to some 128 - 129,000 kilometres. There was evidence that when the purchaser went to the home of the applicants in response to a newspaper advertisement he met Mrs Schokker. She called Mr Schokker who came. It was the evidence of the purchaser that he asked if there was anything wrong with car and Mrs Schokker said "No we bought it from a young girl a year or something ago". It was the evidence of the purchaser that he was interested in buying the car because of the odometer reading and because of what had been said; if he had known the car had done 227,929 kilometres he did not think he would have bought it as it would have done too many kilometres, and if he had known the applicants had owned the car for only 11 days he said "You think there is something wrong with the car and that's why they are selling". It was open to the jury to be satisfied on that evidence, despite its caution, that the purchaser relied on the odometer reading and on what was said about length of ownership when he made his decision to buy the car and part with his money. This is a case where the jury's advantage in having seen and heard the purchaser would have been of significant value in their assessment of the force and effect of the evidence as to reliance and inducement. Notwithstanding the contrary submissions for the applicants, in my view, there was sufficient evidence to support the verdict.

50 With respect to count 6 there was evidence that the car was sold two days after it was purchased by Mr Schokker in Mrs Schokker's name and it was open to the jury to conclude that in that time the odometer had been wound back some 60,000 kilometres from 202,419 kilometres. It was the evidence of the purchaser that he was told by Mr Schokker that the car had been used for family purposes, running to and from the shops and general purposes. There is no reality or substance in the submission that these statements had not been shown to be false as it has not been shown by evidence that this was not what the car was used for during the two days it was in the applicants' possession. The purchaser's evidence was that he would not have bought the car if he had known the odometer read 202,418 kilometres because that was a higher kilometrage than he was looking for. It was also his evidence that he would not have bought the car if he had known the applicants had it for only two days as he would find that highly suspicious. Much is made in submissions about aspects of the purchaser's evidence, including its credibility and its reliability, and of differences between it and the evidence of the purchaser's stepfather who was with him. These were matters for the jury to assess. It is also submitted that other matters weighed with the purchaser and this has some support in the evidence. Nevertheless, it was open to the jury on the evidence to be satisfied that the oral representation and the odometer reading were false and that either or both induced the purchaser to buy the vehicle and part with his money.

51 As to count 7 the only other particular issues raised in respect of this turn on the credibility of the purchaser's evidence which was a matter well canvassed at the trial.

52 With respect to count 8 there was evidence capable of establishing the vehicle was sold 12 or 13 days after it was acquired in the name of Mrs Schokker, and that in that time the odometer had been rewound from 168,299 kilometres to some 139,000. It was the evidence of the purchaser that she had set a limit of 150,000 kilometres for the odometer reading as she looked for a car. It was also her evidence that she was told by Mrs Schokker that she had had the car for some eighteen months to two years and as she was no longer going to work they were going to try having one car. It was the evidence of the purchaser that it was very important to her that Mrs Schokker had had the car for such a time and that she would not have bought the car had she known Mrs Schokker had owned it for only 13 days. She would not even have considered it. In her evidence the purchaser also stressed the importance to her of the odometer reading. She stressed she had set a limit. She definitely would not have bought the car if she had known the odometer reading was not accurate and Mrs Schokker had owned it for only a short time. In my view, this is evidence well capable of being accepted by the jury as establishing the element of reliance or inducement in respect of either or both the length of ownership and the odometer reading, notwithstanding the submissions to the contrary.

53 With respect to count 9 there was evidence which the jury might properly have accepted as establishing that the vehicle was resold three days after it was purchased by the applicants in the name of a relative, and in that three days the odometer had been rewound from 196,925 kilometres to some 137,000. It was accepted by Mr Schokker in his evidence that he had told the purchaser's father on the phone that the odometer reading was some 137,000 kilometres and that he may have said the car had been in the family for "a while". There was evidence from the purchaser's father that when asked Mr Schokker said the car had been in the family about 12 months and that it was his wife's car and they had moved recently so he could walk to work and they didn't need the car. The daughter also recalled Mr Schokker saying that his wife had used the car mostly for shopping and things like that. The vehicle was inspected by the father and daughter together and the vehicle was purchased by the daughter. It was her evidence that she was looking for a car with less than a 150,000 kilometres on the odometer and that the odometer reading had a bearing on her decision although she could not say she wouldn't have bought the car had she known the true reading was 196,925 kilometres. It was also her evidence that it would have affected her decision to buy if she'd known the applicants had only owned the vehicle for three days as she'd have thought they were selling for a profit or that it wasn't a good vehicle. Her evidence was clear that she would not have bought the vehicle had she known the true kilometres and that the applicants had only owned it for three days. The applicants' point to some differences between her evidence and that of her father as to what each saw to be material in her decision to buy, although in this regard the father also said that he thought they'd have walked away had they known the true odometer reading and that the Schokkers had had the car for three days. It is submitted that the evidence is too equivocal as to reliance or inducement. While the evidence gave rise a number of factual issues to be weighed by the jury it was, in my view, open to the jury to accept from this evidence that the daughter would not have purchased the vehicle had it not been for the representations as to the odometer reading and the time the vehicle had been owned.

54 For these reasons it was, in my view, open to the jury to be satisfied of the guilt of each of the applicants in accordance with the verdicts returned and in particular that the material representations relied on by the Crown in respect of each count were made, that they were false, that the applicants were acting together whether as joint principals or as principal and aider, and that the element of reliance or inducement was established in respect of each count.

55 Thus, insofar as it is submitted that the evidence was not capable of supporting the verdicts returned by the jury, in my view that ground has not been made out. It will be more convenient to consider the further question whether the verdicts are unsafe or unsatisfactory after I have dealt with the other grounds.

56 It is submitted that the trial Judge allowed questions to be put in a prejudicial form. Typically, for example, having had a witness give evidence as to what was noted about the odometer reading and what had been said by the applicants when a car was inspected, and as to the decision to buy the vehicle and the reasons for the decision, prosecuting counsel would then focus again on the material representation or representations relied on and ask a question such as - "If you had known the true odometer reading would you have bought the car?" and "If you had known the Schokkers only had the car for three days would you have bought the car?" It is submitted the proper question was "What induced you to part with your money?" Reliance is placed on observations of Ipp J in Carden v The Queen (1992) 8 WAR 296 at 323, and the cases there cited of R v Grail (1944) 30 Crim App Rep 81 and R v Laverty [1970] 3 All ER 432. Each of these cases, however, was concerned with the failure of counsel to have the witness identify why the witness had parted with his money, ie what was the inducement. The question "What induced you to part with your money?" ensures there is evidence directly on that essential issue. The cases referred to do not hold, however, that this is the only form of question that may properly be put. Indeed, as Caldecote LCJ, Humphreys and Oliver JJ said in R v Grail at 83:

" ... Counsel for the prosecution ... entirely omitted to ask her the all-important question 'Why did you part with your money?' He had elicited from her the fact that she had been told by the applicant that he had been for a considerable time in one of the Ministries. If he had asked the one other question, 'Did you believe that?', it might have been sufficient, though a better question would have been 'Why did you part with your money?' ..."

Alternatively, of course, the inducement may sufficiently appear as a matter of inference even though no specific question and answer deals with the point. That was the position for most counts in Carden v The Queen. In the present case the questions of the type objected to overcame the problem being considered in the decisions referred to.

57 If there is an issue it is whether the questions were too suggestive of the answer to be fair. In this regard, while the evidentiary pattern of each witness varied, the questions were asked in a usual context in which the witness had identified the odometer reading, what he or she had been told, and generally why they had decided to buy. The issue to which the question was usually directed was, therefore, the degree of materiality to the decision to buy of the particular false pretence or pretences relied on by the prosecution, it or they having already been identified as bearing on the decision to buy.

58 Although it is sometimes said that a question which calls for a Yes or No answer is necessarily leading, the discussion by Burt CJ in R v Saunders (1985) 15 A Crim R 115 at 118 is enough to refute that view. As his Honour there noted, a leading question (a) suggests the answer desired, or (b) assumes the existence of disputed facts. As his Honour said at 118:

"But a question can, I think, be formulated so as to call for a Yes or No answer which makes no assumption of fact and without the slightest implication that Yes rather than No is the hoped for answer. I cannot see how it can be said that such a question is leading. See Cockle's Cases and Statutes on Evidenc_e_ (7th ed, 1946), p 292. And in a rape case, upon the element of consent, I find it difficult to see how the question could be otherwise formulated than by asking, 'Did you consent?' or perhaps by putting in the alternative, 'Did you or did you not consent?'

For these reasons I am of the opinion that the question asked in this case 'Did his penis penetrate you?' was not a leading question but that is not to say that if objected to the trial Judge would not have required counsel to reformulate it by asking a question or a series of questions directed to what happened in fact ... to ensure a fair trial ..."

59 In the circumstances of the present case the questions made no assumption of fact and although capable of a Yes or No answer they did not imply the desired answers. It is to be noted, indeed, that a review of the answers of the witnesses to the questions of that nature indicates that there was a variety of responses. The nature of the questions and their evidentiary purpose was, however, quite different from the question in a rape trial "Did his penis penetrate you?" when there was not yet evidence of that issue before the jury. Thus, while the matter may have been approached differently during the trial, I am not persuaded that in the circumstances of this case questions of the type now being considered were improper or have led to unfairness or miscarriage of justice.

60 It is also objected that an aide memoire was used by the jury during its deliberations. This was in the form of a simple chart which set out in respect of each of the counts the prosecution allegation as to the type of vehicle, the date purchased, the odometer reading at purchase, the date sold, the number of days owned, the purchaser's name and the odometer reading at sale. It is contended that this is equivalent to allowing into the jury room a disputed unsigned record of interview, see Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517. The analogy does not hold good, however, both as to the nature of the document and its purpose, and also as to the risk that it might have an improper influence on the deliberations of the jury. In this case the jury had to consider nine distinct counts and it was well open to the trial Judge, in my view, to take the view that the use of the aide memoir would guard against the possibility of confusion between the different counts. It is further submitted that in respect of some of the odometer readings the chart contained inaccuracies but this turns on some precise detail as to the evidence of the readings and does not affect in any material way the import of the evidence as to each count. It is also submitted that there was prejudice to the applicants in that odometer information was included as to count 1 when the prosecution did not rely on the odometer reading as a representation which induced the sale. As is considered elsewhere in these reasons the odometer readings for count 1 were relevant to other issues and the main point of the aide memoire was to avoid possible confusion between counts. The inclusion of the odometer information for count 1 is not open to valid criticism.

61 There were clear and adequate directions by the trial Judge as to the purpose of the aide memoire, the basis of the information it contained, and express directions that its content was not evidence or fact. Further, his Honour reminded the jury of the actual evidence as to the matters set out in the aide memoire.

63 In support of this ground a number of what are submitted to be errors or omissions in his Honour's charge to the jury are advanced.

64 The only omission of a matter of law raised is the lack of a direction in accordance with Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 in respect of the failure to call persons who inspected the vehicle with the purchaser and who offered some advice to the purchaser. This is limited to counts 1 and 8. This does not appear to be a case, however, where a Jones v Dunkel direction was called for. In Jones v Dunkel a widow sued for the death of her husband who died when a truck he was driving collided head on at night with another truck on a winding country road. There were no witnesses to the collision. The driver of the other truck did not give evidence and the evidence revealed no reason for his absence from the witness box. In those circumstances it was held that a direction was required that any inference available on the evidence favourable to the plaintiff might be more confidently drawn when a person presumably able to put the true complexion on the facts relied upon as the ground for the inference is not called and the evidence provides no sufficient explanation of his absence. In this case the trial Judge took the view in respect of the facts as to counts 1 and 8 that as it was not contended by the prosecution that there had been, and as there was no evidence of, a representation to the witnesses in question, there was no need to call them. That negated any basis for a Jones v Dunkel direction. In each case the purchaser was called.

65 Insofar as omissions with respect to matter of fact are relied on in support of this ground, it is important to bear in mind the observations of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 560 - 561:

"In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 (NSW) which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarize 'the evidence given in the trial' if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence."

66 In this case his Honour's charge followed on three final addresses by counsel in which the facts had been well canvassed and, in particular, the facts, issues and arguments relevant to the facts which were material to the defence of each of the applicants had been well canvassed by their respective counsel. In summarising the facts for the jury, therefore, the trial Judge might properly have regard to the addresses of counsel in assessing whether further reference to a matter or argument was necessary to ensure that the jurors had a sufficient knowledge and understanding of the evidence to discharge their duty.

67 A reading of the transcript of the charge in this case reveals that his Honour conscientiously applied himself to the task of reminding the jury, in respect of each count, of the material evidence and to outlining the prosecution case and the defence cases. His Honour also dealt with particular issues applicable to various of the counts. There is no apparent lack of balance or want of attention to material factual issues or arguments. In the result it appears to me that the jury would have had a sufficient knowledge and understanding of the evidence to perform their task. His Honour did not attempt to deal exhaustively with every factual matter or argument raised. He did, however, set out to identify and deal with the more material factual issues and arguments. It is submitted in particular that his Honour failed to mention sufficiently Mrs Schokker's full health problems, the cautioning of some witnesses by the police investigators in 1995, the fact that Mrs Schokker had owned other cars in the period covered by the indictment, that forensic examination of some of the vehicles had not identified the fingerprints of either applicant on the odometer mechanism and instrument clusters, the evidence of Mr Schokker that Mrs Schokker signed a blank form when dealing with the purchaser in count 7, or that having reminded the jury that there was no evidence that any of the statutory notices were ever given to either of the applicants he failed to remind them that there was a statutory obligation on the auction establishment to do so. There are a number of other matters raised. In my view, these were matters that were not sufficiently material for it to be necessary for them to be dealt with by the trial Judge, or in particular to do so in addition to the treatment of such issues in the addresses of defence counsel.

68 It is also contended that the trial Judge failed to highlight to the jury that the auction establishment documents indicated, or were consistent with the view, that some of the vehicles were put up at more than one auction using the same statutory notice before they were purchased by the applicants or one of them, and of the acknowledgment by Mr Swaine of one of the auction establishments that there was a possibility that a car could have been sold "internally", ie to a member of the auction establishment staff at an earlier auction before the eventual sale to the applicants or one of them. It is submitted that this evidence is most material as it provides foundation for the view that the odometers may have been wound back by a member of the staff of the auction establishment who with a view to gaining personal profit had bought the vehicle at an earlier auction and then resubmitted it for sale after winding back the odometer. I have already indicated my view as to the inadequate foundation in the evidence for such a factual possibility. In my view, it was unnecessary and it would have been undesirable for the trial Judge to have gone into exhaustive detail in respect of this issue. In addition to the submissions during the addresses of counsel, however, his Honour did remind the jury of the contentions to this effect advanced by Mr Schokker in the course of his evidence and of his conjecture that the winding back may have taken place before Mrs Schokker (on his evidence) bought at auction. The jury also had as exhibits the auction establishment documents relied on.

69 I am not persuaded that any more detailed reference to the evidence as to this issue was necessary to adequately remind the jury of the evidence to enable them to fulfil their task. The submissions for the applicant depends essentially on conjecture which was without adequate evidentiary foundation. On appeal the applicants seek to reinforce this conjecture by further factual assertions made in the course of the submissions, which assertions have no foundation in the trial evidence. I am not persuaded that any deficiency in his Honour's treatment of the facts has been demonstrated in this respect or that there is reason to think that the jury may not have had an adequate appreciation of the evidence in this regard to fulfil their task.

70 It is also contended that his Honour made a reference to ownership by Mr and Mrs Schokker of the vehicle the subject of count 1 despite the evidence of Mr Schokker that, although the vehicle came to be registered in his name, this occurred by mistake and in truth the vehicle was purchased by Mrs Schokker. The reference complained of was, however, to the evidence as to the belief of the purchaser of the car. Further, his Honour expressly noted that it was Mr Schokker's case that he did not buy the car, the signature on the statutory notice was not his, and although the car was registered in his name that was a mistake.

71 It is also submitted that when dealing with count 8 the trial Judge referred to the vehicle having been purchased by Mr Schokker rather than Mrs Schokker. His Honour did say this, but he also reminded the jury that the statutory notice was not in Mrs Schokker's possession and that the documentary exhibits showed Mrs Schokker as the purchaser. As count 8 concerned a representation as to the length of time Mrs Schokker had owned the vehicle, and most of his Honour's direction dealt with that issue, there is no reason to think that the one reference to Mr Schokker could have misled the jury. It is further contended that his Honour also referred to Mr and Mrs Schokker owning that vehicle, but that was an express quotation from a question asked of a witness.

72 With respect to count 2 his Honour reminded the jury that it was the evidence of Mr Schokker that while the vehicle was being inspected by the purchaser and her father he had commented that the odometer could not be relied on given the age of the vehicle, and that it was for the Crown to prove that this was not said. It is contended, however, that his Honour erred by saying that this was said to the daughter when it was Mr Schokker's evidence that it was said to the father, and by failing to go on and note that there was no direct contradiction of this evidence. In this last respect it was, however, contrary to the evidence of both father and daughter as to what had been said. The reminder contended for would have been inappropriate in those circumstances. It was not critical whether the comment was made to the father or the daughter. The important issue was whether such a comment was made, or may have been made, and his Honour's reminder brought this to the jury's attention.

73 It is also contended in respect of count 3 that his Honour failed to remind the jury that the purchaser could not recall what the odometer reading was. But it was the purchaser's evidence that the odometer read in the low 100,000's and his Honour expressly reminded the jury that this was his evidence. This evidence was, of course, to be contrasted with the other evidence that at the time the vehicle was acquired in the name of Mr Schokker at auction the odometer read 208,896 kilometres.

74 It is also highly relevant, though of course not necessarily determinative, that none of the points now raised in respect of his Honour's charge were raised at trial by counsel for either of the applicants. There were matters raised by counsel for Mrs Schokker, and for the Crown, and his Honour gave a brief further direction to the jury to deal with those, but the matters now relied on were not seen by either defence counsel at the time to warrant further direction despite the close familiarity of those counsel with the material issues alive in the evidence.

75 I am not persuaded that any of the matters now advanced in respect of Ground D has resulted in a miscarriage of justice. The charge appears to have fairly and adequately reminded the jury of the relevant issues, evidence and arguments to enable the jury to discharge its function properly.

76 Separate trials of the two applicants were sought and refused by the trial Judge. It is now contended on two bases that this has resulted in a miscarriage of justice because of the prejudice to each applicant, particularly to Mr Schokker. The view is advanced for each applicant that the evidence as to the conduct and statements of the other of the applicants when dealing with those who purchased the vehicles was such that a warning to the jury was an insufficient protection to either applicant. Further, it is submitted that by virtue of Mrs Schokker's medical condition at the time of the trial Mr Schokker suffered "impossible prejudice" from a joint trial.

77 In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 the High Court considered a case where a separate trial had been sought by the appellant because in three records of interview with the co-accused assertions were made that the appellant had engaged in a violent and sadistic attack on the deceased. It was contended that a direction could not cure the overwhelming prejudice to the appellant of these assertions which were led in evidence on the joint trial. As Toohey J said at 88 - 89, Mason CJ and McHugh J concurring,

"The justification, indeed the alleged necessity, for separate trials lies in the fact that in three records of interview with Webb, which could be expected to be and were adduced in evidence by the prosecution, Webb made assertions that Hay had engaged in a violent and sadistic attack on the deceased. And, it was said, although the trial judge warned the jury that this evidence was not admissible against Hay, such a direction could not cure the overwhelming prejudice inevitably caused to Hay,

King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other.' What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in Reg v Collie. I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.

In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused.

In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed: 'That is a common feature of a joint trial and does not of itself render separate trials necessary." Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred."

78 There were no special features of this case such as the assertions of the co-accused in Webb v The Queen. While it is possible that individual aspects of the evidence might not have been admitted on the separate trial of one accused, there is no reason to consider that any risk of misuse of any such evidence would not have been adequately obviated by appropriate directions. There were no pre-trial admissions by either accused. In the event, Mrs Schokker did not give evidence but that is a common enough feature of joint trials. While, in his evidence, Mr Schokker was careful to insist that he was not the purchaser of any of the vehicles, that he had not made any false representations, and that he was not aiding his wife, to a significant degree his evidence was directed to demonstrating that she too was not guilty of any of the offences. In my view, adequate directions were given by the trial Judge to obviate the danger for each accused from a joint trial and there is no reason to think the jury were not capable of properly appreciating the directions and applying them. It is not been shown that a miscarriage of justice is likely to have occurred.

79 The question of Mrs Schokker's health and its potential effect on the trial, and any prejudice likely to arise for Mr Schokker because of it, were matters, which of necessity, required evaluation by the trial Judge at the time separate trials were sought and, of course, as the trial proceeded, as it was open to his Honour at any stage of the trial to order separate trials if it appeared that unfairness would result from the joint trial continuing. As the record reveals, an adjournment of two days during the trial became necessary because Mrs Schokker was affected, it appears, by anxiety because of the trial process. On the original application for separate trials a medical practitioner qualified in the field of psychiatry who had treated Mrs Schokker for some five years, ie since the charges were laid of these offences, gave evidence that she suffered from anxiety and depression relating to the charges and had a chronic history of physical and emotional ill health. It was his evidence that since being charged she had presented with an unstable disthymic mood disorder and under stress her anxiety was likely to cause her to be withdrawn or quieter or to become very agitated. No question arose of insanity within the meaning of the Code. It was the evidence of the psychiatrist, however, that prior to the trial Mrs Schokker had no trouble understanding what would be involved. In relation to the adjournment the medical evidence was that, depending on the length of the proceedings, it was possible she could cope with the continuation of their trial if there was a few days gap. The trial only continued after counsel for Mrs Schokker indicated there was no objection and the trial Judge made it clear that Mrs Schokker should indicate if, at any time, she was unable to proceed. That did not occur.

80 It is submitted on appeal that an answer she gave to an enquiry of the trial Judge during the trial that she understood the proceedings "sometimes" revealed she was affected by her emotional and mental state and that she was "mentally impaired" so as to be unable to conduct her defence. This is not supported by the medical evidence and the answer is well explained, as his Honour viewed it, as reflecting an inability to understand aspects of the legal argument that was occurring. It is significant that there was no application for separate trials or with respect to the continuation of the trial by either applicant during the hearing.

81 While these events were unfortunate, emotional and nervous disorder by an accused during a trial is not unusual and there is no reason to conclude that by virtue of them Mrs Schokker was not able to conduct her defence adequately. Nor is there reason to conclude that Mr Schokker suffered "extreme" or "serious" prejudice because her condition "by association created the false impression of his guilt", as he submits. Indeed, if anything, Mrs Schokker's condition may well have evoked some sympathy. It is not been shown that a miscarriage of justice has resulted from the joint trial of the applicants.

82 It is contended by this ground that the trial Judge erred in failing to order the separate trial of each of the counts.

83 There can be no doubt that joinder of all of the counts in the one indictment was justified by s 585 of the Criminal Code, they being a series of offences of the same or a similar character, and evidencing a clear nexus: Ludlow v R [1971] AC 29 at 38 - 41, Seiler v R [1978] WAR 27 at 32, Beck & Smith v R [1984] WAR 127 at 133, and De Jesus v R [1986] HCA 65; (1986) 68 ALR 1.

84 As to the exercise of the discretion to order separate trials, Brennan J in Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 541 - 2 said:

"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."

85 It is submitted that in the present case none of the evidence concerning the other counts would have been admissible on the trial of any one of the 9 counts so that a real risk of prejudice arose to each applicant from the adverse effect of the evidence as to their implication in the circumstances raised by the other counts. It is not apparent, however, that the evidence would be inadmissible. It is not permissible, of course, for the prosecution to seek to prove an accused guilty by showing the accused to have a propensity to commit a particular type of offence or that an accused is the sort of person likely to have committed the offence charged. It is necessary, therefore, to guard against the risk that a jury will infer that a person who has been guilty of misconduct of a particular kind on one occasion is likely to be responsible where similar misconduct occurs on another. There is also the risk that by virtue of the multiplicity of counts and the evidence relating to them the jury may fail to consider separately the evidence as to each count.

86 With respect to admissibility in Director of Public Prosecutions v Boardman [1975] AC 421 at 453 Lord Hailsham said:

"What is not to be admitted is a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning be the only purpose for which the evidence is adduced as a matter of law, the evidence itself is not admissible. If there is some other relevant probative purpose than the forbidden type of reasoning, the evidence is admitted, but should be made subject to a warning from the judge that the jury must eschew the forbidden reasoning."

In the present case, however, there were other relevant probative purposes which would justify the admission of evidence concerning the other counts even on the separate trial of one count, ie the question of knowledge by each of the applicants of the winding back of the odometers as well as the issues of aiding and fraudulent purpose: Also see Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294. On the separate trial of one of these offences it would have been open to the trial Judge to allow the admission of evidence of the other counts.

87 In this case the question is whether appropriate directions to the jury were sufficient to guard against the risk of impermissible prejudice. In his directions the trial Judge stressed that effectively the jury were dealing with 17 separate trials and that they were required to consider each count and each accused separately and independently and must not convict by a process of reasoning by association. The jury were clearly directed that a verdict of guilty on one count should not be carried forward to another count or that a verdict of guilty against one accused should not be carried forward to the other accused on the same count. It was also clearly spelt out that while the elements of each of the offences were the same, the evidence in respect of each was very different. Further, the trial Judge dealt separately with each count and canvassed the case for the prosecution with respect to that count distinguishing, where appropriate, the case against each of the applicants and he separately identified the defence case of each applicant with respect to that count. Not only did this offer valuable assistance to the jury but it served to underline the need to distinguish the case on each count against each accused and the appropriate approach to be followed by the jury in its deliberations. By these means, and by the express and repeated directions, the jury in my view, were given adequate directions by the trial Judge as to the use they might make of the evidence so far as it concerned each accused and so as to guard against improper reasoning and prejudice. Given the directions, the nature of the case and the issues to be determined there is no good reason for concern that the jury did not approach their task with a proper appreciation of their task and the use they might properly make of the evidence as against each of the applicants on each count.

88 I am not persuaded that there is reason to think that a miscarriage of justice is likely to have occurred by virtue of the joint trial of all counts in the indictment.

89 It is contended that delays during the trial prejudiced the applicants. It is submitted that by virtue of the delays the evidence of witnesses was either forgotten by the jury or affected by confusion. It seems to be the submission that the trial ought to have been stayed as an abuse of process by virtue of these delays although no such submission was made to the trial Judge during the trial.

90 There were a number of delays of limited duration during the trial for a variety of reasons, the longest of which was the two day adjournment because of Mrs Schokker's health. The trial extended from 1 March to 16 March. It seems to be advanced that the delays prejudiced the applicants as aspects of the evidence of witnesses favourable to the defence, particularly the cross-examination of prosecution witnesses, must have been "either forgotten or confused in relation to the required inferences", although no factual basis is advanced for such an assertion. The submission appears to be without any substance. The trial was not particularly long. Even though there were some delays the conduct of the trial was not disrupted in any significant way. The jury had the benefit of three quite detailed addresses by counsel and quite a detailed charge to remind them of the material evidence.

92 I now will return to the question whether by virtue of any of the matters raised, either alone or in combination, there is reason to conclude that the verdicts or any of them were unsafe and unsatisfactory.

93 The approach which this Court should take to a ground of appeal that the verdict of the jury is unsafe or unsatisfactory was considered by the High Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 where at 493 Mason CJ, Deane, Dawson and Toohey JJ said:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

With respect to the advantage which the jury enjoyed of having seen and heard the witnesses their Honours added at 494-495:

" ... where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (emphasis added)

94 As indicated elsewhere in these reasons there was in my view, evidence capable of supporting the verdicts returned by the jury. The applicants' submissions in support of this ground overlap with their submissions that the evidence was not capable of supporting the verdicts and I have dealt with many of their particular submissions elsewhere in these reasons. Many matters are raised which go to the credibility of individual witnesses and to the weight which ought to be attached to their evidence and to the question of the inferences open to the jury. These were all alive in the trial and fell to be assessed by the jury as they considered the evidence in light, in particular, of the clear advantage the jury had in having seen and heard the witnesses, including Mr Schokker, as the evidence was given.

95 Even though the Crown case depended in material respects on inference, and therefore on the jury being satisfied beyond reasonable doubt that competing inferences consistent with innocence were disproved, the extensive submissions which have been made have not identified any feature of the evidence or any issue which ought to have given rise, in my assessment, to a reasonable doubt as to any of the verdicts, nor is any such feature or issue apparent on a reading of the record of the trial itself. While there are discrepancies and inadequacies as to some individual aspects of the evidence these are by no means unusual for a trial such as this, and their significance and their relevance to the real issues in the case was well able to be assessed adequately by the jury. None of the matters gives rise, in my view, to a significant possibility in respect of any of the 17 verdicts that an innocent person has been convicted.

96 It is my view, having regard to the whole of the evidence, that it was well open to the jury as the body entrusted with the primary responsibility to determine guilt or innocence to come to the verdicts which were returned.

97 One issue raised is that the verdicts are unsafe and unsatisfactory as the jury only deliberated for a relatively short time. Contrary to the submission it is not surprising, in my view, that the jury were able to reach verdicts without extensive deliberations. The Judge charged on the last day of the trial. The jury had heard the addresses of counsel on the previous day. It is for a jury to regulate its own deliberations. It is not required that the jury together meticulously deliberate over each evidentiary and legal issue. In the event that when this jury retired to consider its verdict, all jurors had the same clear view about each verdict in light of the Judge's charge, there would have been no need at all for any deliberation. In such circumstances it would have been quite proper for the jury to return to the courtroom immediately to deliver the verdicts. That did not happen in this case of course and although the jury did not deliberate for an extensive time, the length of time taken by the jury to reach its verdict in this case does not provide any reason to think the verdict is unsafe or unsatisfactory.

98 It is submitted that the fines totalling $17,000 imposed on the applicant Mr Schokker, and $16,000 imposed on Mrs Schokker, were excessive.

99 It is contended the fines are excessive compared to recent similar cases and by comparison with the profit made from the sale of the cars in question. It is also contended the sentence fails to provide a discount for assistance given to the Crown. In the case of Mr Schokker it is also submitted that there was a failure to take into account the loss of financial benefits from his employment which would be consequential on conviction.

100 At the time of the offences Mr Schokker was in permanent employment as an investigator or inspector with the Australian Tax Office and was earning an annual salary in excess of $50,000. He had been born in Holland in 1950 and arrived in Australia in 1955. He had a tertiary qualification in accounting. Mrs Schokker was born in the United Kingdom in 1950 and arrived in Australia in 1961. She was educated to the New South Wales Intermediate examinations level. She was not employed at the time of the offences but owned assets, including a house, and was in receipt of family and disability allowances and maintenance payments. The applicants had married in 1985. For each of them this was their second marriage. Each had children from their first marriages, the youngest being 13 and 17 in early 1995 when they were charged. Neither applicant had previous convictions involving dishonesty or otherwise of real relevance to these offences. The sentencing Judge had before him references favourable to the applicants, although generally relating to some community activities of the applicants during the period between their being charged and the trial being conducted.

101 The comments of the trial Judge reveal that he correctly appreciated the personal circumstances of the applicants and of the offences. His Honour took the view, which was rather inevitable in the circumstances, that the offences were calculated and devious and were committed over a period of months between May 1994 and January 1995. His Honour concluded from everything he'd heard and the manner in which the defence was conducted that neither applicant was at all remorseful. His Honour noted that all but two of the victims of the fraudulent conduct had limited funds and were persons to whom the money spent to acquire the vehicles was likely to be significant even though the vehicles were not in themselves expensive vehicles.

102 In all the circumstances His Honour was persuaded that deterrent sentences were warranted and it is apparent from the sentencing comments that his Honour gave serious consideration to custodial dispositions. In the end, however, his Honour was persuaded that fines would be a sufficient penalty. In this respect the decision in Guilbert v The Queen, unreported; CCA SCt of WA; Library No 970450; 13 August 1997 weighed heavily with his Honour.

103 The fines for each applicant were determined on the basis of $2,000 per offence, although a reduction of $1,000 was allowed in the case of Mr Schokker as he had spent 7 days in custody awaiting sentence.

104 The maximum sentence provided by the Code for each of the offences for which the applicants were sentenced is 7 years imprisonment.

105 The applicants rely on two cases which, in their submission, reveal that a fine of $2,000 for each offence is excessive. In the case of Guilbert v The Queen (supra) this Court reduced a sentence of 21/2 years imprisonment to fines totalling $95,000 in a case where a hire fleet operator had wound back the odometers of 49 of his fleet vehicles before selling them to purchasers in the motor vehicle trade. Guilbert had, however, served 3 months imprisonment pending appeal which was taken into account in arriving at the fine of $95,000. While Guilbert was a commercial dealer and his offences were over a more prolonged period and involved a much greater total value of vehicles, it is also apparent that the totality principle was a relevant factor in that case given the number of offences involved. Even so, the decision in Guilbert would support fines well in excess of $2,000 per offence.

106 In the other case, another hire fleet operator was fined a total of $66,000 when he pleaded guilty to 66 counts involving the sale of vehicles of his fleet with wound back odometers. Once again the totality principle and the pleas of guilty to these offences appear to have weighed significantly and offer at least some explanation for what was nevertheless a lenient sentencing disposition.

107 Each of these cases are entirely distinct from the present sentences. They are not sentences passed on co-offenders. It cannot be said that they establish or reflect a tariff or pattern of sentencing for this type of offence. The two cases reveal quite different sentencing dispositions, although both involve fines.

108 The applicants submit that their offences are less serious as they are not in the motor vehicle trade, their offences are fewer in number, and they dealt in cars that were older and cheaper so that their profit return was lower. With respect to profit they submit that even though the nine vehicles were sold for over $10,000 more than was paid for them, their net profit was far less as they incurred repair and other costs. It is submitted that the total of the fines imposed on them should not exceed their net profit.

109 While there are far fewer offences and they did deal in older and cheaper cars, this line of submission confuses material considerations. The gravamen of the offences is not the amount of profit made, although it is of course a relevant consideration. The offence is concerned with the fraudulent depriving of others of their money. Each of the two applicants was personally involved in this conduct over many months. They dealt directly with members of the public who answered the advertisements. It was an obvious strategy followed, as his Honour stated when sentencing, to create the impression of domestic genuineness about the ownership and sale of the vehicles. In that setting the representations of the odometer readings and as to the length of time the vehicles had been owned were likely to be more effective. On each occasion the applicants were motivated solely by financial gain.

110 Given the circumstances, it was well open to his Honour to be satisfied that fines rather than terms of imprisonment were appropriate, especially having regard to the lack of relevant previous record and the sentences imposed by this Court in Guilbert. It was also well open to his Honour, however, to be persuaded that the fines imposed were appropriate given the circumstances and numbers of the offences and the lack of genuine remorse. No question of a reduction in penalty for pleas of guilty arose, there was justification for his Honour's concern for deterrence, and the persistent, calculated and devious pattern of conduct well supported a fine in each case of $2,000. The total amount of the fines imposed on each applicant for the 8 and 9 offences respectively is not such as to give rise to the totality principle and his Honour was able to be satisfied that funds would be available to the applicants to enable the fines to be paid.

111 The sentencing comments make express reference to the consequences of conviction for Mr Schokker's income from his employment and to his co-operation with authorities. The prospective loss of income, which would have an effect for both husband and wife, weighed in the eventual decision of his Honour not to impose sentences of imprisonment. The assistance to the authorities is certainly not of the type which would come within the established principles. What is relied on is a complaint made to authorities late in 1995 which led to unrelated unlawful conduct by one of the purchasers becoming the subject of investigation. It is to be noted, however, that this appears to have been directed, in part at least, to discrediting that purchaser with a view it seems to establishing that it was the applicants who were victims of a conspiracy and innocent of the present offences. Again, following their being charged, the applicants wrote to the Minister for Police in part proposing that as a means of lessening the fraudulent winding back of odometers the statutory transfer papers should be modified to include the odometer reading at the time of sale. It was also proposed that vehicle auction establishments should be required to verify the identity of purchasers. While this may well be commendable as an initiative, it is not apparent that this conduct should require or warrant a reduction in the appropriate sentences imposed for their earlier unlawful conduct in these offences. Indeed the applicants may be seen to have made some use of the absence of a requirement for odometer readings to be recorded on vehicle transfers between non-trade persons to pursue the fraudulent conduct the subject of these 9 offences. It is not demonstrated that in failing to allow some specific reduction for this "assistance" to the authorities his Honour erred in principle or that the fines imposed are excessive.

112 It has not been shown that there are reasons to consider the fines imposed are excessive or that they should be varied. The exercise of the sentencing discretion has not been shown to be defective.

113 I would grant leave to each applicant to appeal against their convictions but I would dismiss the appeals. I would refuse leave to each applicant to appeal against their sentences. I would also remove the stays ordered by Miller J on 31 March 2000 on the enforcement of the unpaid balance of the fines imposed by Charters DCJ on 24 March 2000.