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[2008] WASCA 128
Court of Appeal (WA)
2008-06-17
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SMITH -v- THE QUEEN [2008] WASCA 128
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Trial - Co-accused - Arraignment - Indictment amended to split some of the counts on the indictment - New charges as expressed in the amended indictment in essence the same as the original charges - Accused not prejudiced - Amendment to the indictment did not require rearraignment
Criminal law - Breaches of s 232(2) and s 243ZF of the Corporations Law - Whether convictions unreasonable or could not be supported having regard to the evidence - Accused were directors of public companies - Resolutions proposed at general meetings of the companies to confer a financial benefit on the directors or their associates - Allegation that the accused 'exercised a power to vote' in favour of the resolutions at the general meetings - Allegation that the accused 'allowed proxy votes to be counted' in relation to the resolutions - Whether essential that the prosecution prove beyond reasonable doubt that the power to vote was exercised on a poll called in relation to the resolutions at the general meetings and that the accused allowed the proxy votes to be counted on such polls - Whether sufficient for the prosecution to prove beyond reasonable doubt that the power to vote was exercised and the accused allowed the proxy votes to be counted informally in determining whether the resolutions had been passed
Criminal law - Trial - Judge's comments to the jury on factual issues - Judge failed to inform the jury that they were not bound by the comments and they may accept or reject them as they think fit - Whether judge's comments were materially prejudicial to the defences of the accused - Whether judge's comments occasioned a miscarriage of justice - Whether 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied
Criminal law - Trial - Application by accused to recall prosecution witness - Judge declined to order the recall of the witness - Whether judge's decision was vitiated by error or occasioned a miscarriage of justice
Criminal law - Warnings - Prosecution witness admitted backdating documents, destroying documents and engaging in misleading conduct, but asserted she acted on instructions from the accused - Witness received a 'letter of comfort' from the prosecution authorities - Witness's evidence of critical importance in the case against the accused - Judge gave the jury a warning in relation to the evidence of the witness - Whether the warning given was adequate
Criminal law - Evidence - Post-offence conduct of accused - Whether judge erred in describing evidence of the postoffence conduct as evidence of consciousness of guilt - Relevance of the postoffence conduct - Whether judge gave adequate directions to the jury in relation to the postoffence conduct
Criminal law - Evidence - Admissibility of unsigned and undated letter - Whether copy letter admissible under s 73A(1) of the Evidence Act 1906 (WA) - Whether copy letter admissible under s 73C(2a) of the Evidence Act
Criminal Procedure Act 2004 (WA) s 85(1), s 112, s 132, cl 2(4) of Sch 1
Evidence Act 1906 (WA) s 50, s 73A, s 73C(2a)
Convictions on counts 2B, 3B, 4B, 5B and 8B quashed and verdicts of acquittal entered
Convictions on counts 6, 9, 26, 27, 28, 29, 30, 32B and 34 quashed and a retrial ordered
Convictions on counts 2A, 3A, 4A, 5A and 8A quashed and verdicts of acquittal entered
Convictions on counts 1, 7, 10, 11, 23, 24, 25, 31, 32A and 33 quashed and a retrial ordered
Ayles v The Queen [2008] HCA 6; (2008) 82 ALJR 502
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Beamish v The Queen [2005] WASCA 62
Broadhurst v The Queen [1964] AC 441
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Cavill v The State of Western Australia [2008] WASCA 108
Cecez v The State of Western Australia [2007] WASCA 260
Collard v The State of Western Australia [2008] WASCA 47
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 261
Davies v Director of Public Prosecutions [1954] AC 378
Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Ex parte Graham; Re Dowling [1969] 1 NSWR 231
Fernando v The Queen [2000] WASCA 289
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Foo v The Queen [2001] WASCA 406; (2001) 126 A Crim R 486
Gassy v The Queen [2008] HCA 18
Gately v The Queen [2007] HCA 55; (2007) 82 ALJR 149
Go v The Queen [1990] NTSC 40; (1990) 73 NTR 1
Green v The Queen [1971] HCA 55; (1971) 126 CLR 28
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Khan v The Queen [1971] WAR 44
Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Maher v The Queen [1987] HCA 31; (1987) 163 CLR 221
Mahmood v The State of Western Australia [2008] HCA 1; (2008) 82 ALJR 372
Martinez v The State of Western Australia [2007] WASCA 143
Masters, Richards and Wunderlich (1992) 59 A Crim R 445
McKay v The State of Western Australia [2007] WASCA 196
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Milne v The State of Western Australia [2005] WASCA 38
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Napier v The State of Western Australia [2007] WASCA 248
R v B [1999] SASC 403
R v Boykovski & Atanasovski (1991) 58 A Crim R 436
R v Hally [1962] Qd R 214
R v Heron [2000] NSWCCA 312
R v Honey [1973] 1 NZLR 725
R v Jackson [1992] Crim L R 214
R v Kolomrjyc [1926] 2 WWR 126
R v Macbeth [2008] SASC 71
R v Mason (1925) 18 Cr App R 131
R v Mawson [1967] VicRp 23; [1967] VR 205, 209
R v R (1989) 18 NSWLR 74
R v Saffron (1988) 17 NSWLR 395
R v Zorad (1990) 19 NSWLR 91
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Reid v Readdy [1999] WASCA 208
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Stanton v Abernathy (1990) 19 NSWLR 656
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
White v The Queen [2006] WASCA 62
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Winning v The Queen [2003] WASCA 245
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
1 BUSS JA: Brian Millwood Smith and Stuart Adrian Corp were tried in the District Court, before Fenbury DCJ and a jury, on an indictment containing 35 counts alleging breaches of Commonwealth laws. The trial occupied almost 9 weeks. Verdicts were returned on 4 October 2007.
2 At all material times, Mr Smith and Mr Corp were directors of, and substantial shareholders in, two public companies, Welcome Stranger Mining NL (WSM) and Hallmark Gold NL (HLM). Each company was engaged in mining exploration and listed on the Australian Stock Exchange (ASX). Mr Smith was the Chairman and Mr Corp the Chief Executive Officer.
3 At all material times, Mr Smith and Mr Corp worked together in West Perth at a company which they controlled, called BMS Consultants Pty Ltd (BMS). Each of them was a director of BMS. It provided management services to WSM between 1987 and 1998 and to HLM between 1985 and 1998.
4 The charges in the original indictment against Mr Smith and Mr Corp were as follows:
(a) Counts 2, 3, 4, 5, 8 and 32 alleged breaches of director's duties by Mr Smith and Mr Corp pursuant to s 232(2) of the Corporations Law arising out of their conduct at general meetings of WSM and HLM.
(b) Counts 15, 16, 17, 18, 20, 21, 26 and 27 alleged breaches by Mr Smith of s 243ZF(6) of the Corporations Law, the conduct giving rise to these counts being an allegation that at general meetings of WSM and HLM a vote was cast on behalf of Mr Smith by nominee companies on resolutions which permitted a financial benefit to be given to him.
(c) Counts 12, 13, 14, 19, 24 and 25 alleged breaches by Mr Corp of s 243ZF(6), the conduct giving rise to these counts being an allegation that at general meetings of WSM and HLM a vote was cast on behalf of Mr Corp by nominee companies on resolutions which permitted a financial benefit to be given to him.
(d) Counts 6, 9, 28, 29, 30 and 34 alleged breaches by Mr Smith of s 1308(2) of the Corporations Law (in the case of counts 6, 9, 28, 29 and 30) and a breach by Mr Smith of s 1309(1) (in the case of count 34), constituted by the omission by Mr Smith, in documents lodged with the Australian Securities Commission (ASC) and the ASX, of certain of his relevant interests in shares in WSM and HLM.
(e) Counts 1, 7, 10, 11, 22, 23, 31 and 33 alleged breaches by Mr Corp of s 1308(2) (in the case of counts 1, 7, 10, 11, 22, 23 and 31) and a breach by Mr Corp of s 1309(1) (in the case of count 33), constituted by the omission by Mr Corp, in documents lodged with the ASC and the ASX, of certain of his relevant interests in shares in WSM and HLM.
(f) Count 35 alleged a breach by Mr Corp of s 67(1)(a) of the Australian Securities and Investments Commission Act 2001 constituted by his procuring another to destroy books relating to a matter that the ASC was investigating.
5 During the trial, the learned trial judge, on the application of the respondent, made after it had closed its case, amended counts 2, 3, 4, 5, 8 and 32 to sever each count in relation to each accused. The counts against Mr Smith were re-numbered 2B, 3B, 4B, 5B, 8B and 32B. The counts against Mr Corp were re-numbered 2A, 3A, 4A, 5A, 8A and 32A.
6 Mr Smith and Mr Corp did not give evidence at the trial.
7 Mr Smith was found guilty on counts 2B, 3B, 4B, 5B, 6, 8B, 9, 26, 27, 28, 29, 30, 32B and 34. He was acquitted on counts 15, 16, 17, 18, 20 and 21. Mr Corp was found guilty on counts 1, 2A, 3A, 4A, 5A, 7, 8A, 10, 11, 23, 24, 25, 31, 32A and 33. He was acquitted on counts 12, 13, 14, 19, 22 and 35.
8 The learned trial judge imposed sentences of immediate imprisonment in respect of each count on which Mr Smith and Mr Corp was convicted. Each of them received a net effective head sentence of 3 years imprisonment, commencing on 11 October 2007, with a recognisance release order to take effect after 16 months, that is, on 10 February 2009, in the sum of $20,000.
9 Mr Smith and Mr Corp appeal to this court against conviction and sentence. On 12 February 2008, Miller JA ordered that the applications for leave to appeal be heard together with the appeals.
10 The respondent alleged, in essence, that Mr Smith and Mr Corp accumulated 'relevant interests' (as defined in Division 5, other than s 44, of Pt 1.2 of the Corporations Law) in various shares in WSM and HLM, and failed to disclose those relevant interests as required from time to time under the Corporations Law. The respondent also alleged, in essence, that at general meetings of WSM and HLM, each of Mr Smith and Mr Corp caused proxies he held in respect of the shares in question to be voted in favour of resolutions which conferred a financial benefit on him or his associates.
11 It was alleged, in relation to Mr Smith, that he was a potential beneficiary under a discretionary trust called the Gold Coast Trust. At all material times, Centurion Trust Company Ltd (Centurion), a company with its central management and control in Jersey, Channel Islands, was the trustee of that trust, and the trust property held by Centurion or its nominees included shares in WSM and HLM. According to the respondent, at all material times Mr Smith had a relevant interest in those shares.
12 It was alleged, in relation to Mr Corp, that at all material times he had a relevant interest in shares in WSM and HLM which were held by three companies incorporated in the British Virgin Islands, namely, Davenrite Limited (Davenrite), Happle Limited (Happle) and Courtenay Investments Limited (Courtenay) or their nominees.
13 Mr Smith disputed that he had ever had a relevant interest in any of the shares in WSM and HLM held by Centurion as trustee of the Gold Coast Trust or its nominees. Similarly, Mr Corp disputed that he had ever had a relevant interest in any of the shares in WSM and HLM held by Davenrite, Happle or Courtenay or their nominees.
14 The respondent asserted that when Mr Smith or Mr Corp was required to lodge documents with the ASC or the ASX, each untruthfully failed to disclose his relevant interest in the shares in question, although each disclosed his relevant interest in other shares in WSM and HLM. The respondent also asserted that each of Mr Smith and Mr Corp improperly used proxies he held in respect of the shares in question (given to him by or on behalf of Centurion, Davenrite, Happle or Courtenay, or their nominees, as the case may be) to vote in favour of resolutions at general meetings of WSM or HLM which conferred a financial benefit on him or his associates.
15 The amended indictment contained charges alleged to have been committed on or about specified dates between 1991 and 1998. All proxies given by Centurion or its nominees to Mr Smith, and all proxies given by Davenrite, Happle and Courtenay or their nominees to Mr Corp, during that period, were allegedly voted by the recipient favourably to his interests.
16 The Gold Coast Trust was created in Jersey on 21 March 1986. The trustee, Centurion, was formerly known as Steeple Trust Company Ltd. Two charities (the British Heart Foundation and the Imperial Cancer Fund) were named in the trust deed as beneficiaries. As at the trial, Centurion had not made any distribution of any of the trust property.
17 The respondent relied on the evidence of James Hardcastle and John Ellis, including documents they produced, to establish that Mr Smith had a relevant interest in the shares in WSM and HLM held by Centurion or its nominees. At all material times, Mr Hardcastle was a director of Centurion and responsible for decision-making in relation to the operation of the Gold Coast Trust. At all material times, Mr Ellis was an employee of Centurion Management Services Ltd (CMS), of Jersey, which provided administrative services to Centurion. Neither Mr Hardcastle nor Mr Ellis was willing to travel to Australia to appear as a witness at the trial.
18 In February 2007, pursuant to a supplementary application made on behalf of the Attorney-General for the Commonwealth under the Mutual Assistance in Criminal Matters Act 1987 (Cth), each of Mr Hardcastle and Mr Ellis gave evidence via a video-link from Jersey. Mr Smith was represented by counsel at the hearing. His counsel cross-examined Mr Hardcastle and Mr Ellis. The proceedings were recorded in Jersey on video.
19 On 11 June 2007, the respondent applied, pursuant to s 24 of the Foreign Evidence Act 1994 (Cth), to adduce foreign material, namely, the video of the evidence of Mr Hardcastle and Mr Ellis and the documents which they produced. Mr Smith opposed the application. On 14 June 2007, the learned trial judge decided that the foreign material could be adduced.
20 The evidence of Mr Hardcastle and Mr Ellis established, relevantly:
(a) A Swiss resident, Jutta Suess, who died in 1988, was the settlor of the Gold Coast Trust.
(b) An unsigned and undated letter (referred to as a 'letter of wishes') was located on the files of Centurion, which named four potential beneficiaries of the Gold Coast Trust, including Mr Smith. The copy letter of wishes set out a percentage against the name of each potential beneficiary. In Mr Smith's case, it was 20%.
(c) Centurion retained Mr Smith as an adviser to the Gold Coast Trust for which he was remunerated from time to time by the payment of credit card expenses and the issuing of traveller's cheques.
(d) The trust property of the Gold Coast Trust included, amongst other assets, shares in WSM and HLM.
(e) By letter dated 9 September 1997, Mr Smith wrote to CMS, expressing the wish that during his lifetime he be entitled to the income and capital of the trust property. Mr Hardcastle understood that this wish related to Mr Smith's 20% potential share in the trust property as set out in the copy letter of wishes.
(f) Mr Ellis, at CMS's office in Jersey, received correspondence from Mr Smith from time to time in which Mr Smith gave investment advice concerning the shares in WSM and HLM. Mr Ellis identified correspondence from Mr Smith to Centurion in relation to the voting by proxy of the shares in WSM and HLM at general meetings of those companies. Five of the letters in question related to meetings the subject of the counts in the amended indictment. In the correspondence, Mr Smith suggested how the proxy forms should be completed.
(g) The proxy forms which were completed and signed by or on behalf of Centurion or its nominees were voted in the manner suggested by Mr Smith.
(h) In 1995 and 1998, the ASC sent notices to Centurion, requesting it to inform the ASC of the name of any person who had a relevant interest in the shares in WSM and HLM held by the Gold Coast Trust. Mr Hardcastle and Mr Ellis concluded, upon receipt of those requests, that Mr Smith did not have a relevant interest. Mr Hardcastle gave evidence that Centurion acted independently pursuant to its fiduciary duty, it took its responsibilities seriously, and it 'would not simply act on the directions, instructions or wishes of a third person'.
21 Abacus London Limited (Abacus), an accountancy entity controlled by Susan Wickerson, with its management and control in London, arranged for the incorporation of Davenrite, Happle and Courtenay. Abacus also managed the companies. Dawn Dodd (née Sawyer) was Mrs Wickerson's assistant. At all material times, a company called Ciaga Investments Limited (Ciaga) was the sole director of Davenrite, Happle and Courtenay. Atticus Trust Company Limited (Atticus), a brokering entity, controlled Ciaga.
22 The respondent relied on the evidence of Mrs Wickerson and Mrs Dodd, and documents they produced, to establish that Mr Corp had a relevant interest in the shares in question.
23 Mrs Wickerson and Mrs Dodd gave evidence before the trial, in Jersey. The proceedings were recorded in Jersey on video. As with the evidence given by Mr Hardcastle and Mr Ellis, the procedure for Mrs Wickerson and Mrs Dodd to give evidence was initiated and undertaken by the Commonwealth in co-operation with Jersey authorities pursuant to the Mutual Assistance in Criminal Matters Act, with the evidence being admissible, subject to discretionary exclusion, under the Foreign Evidence Act.
24 Mrs Dodd was examined by counsel for the respondent in Jersey in June 2006. Mr Corp did not appear in person or by counsel and, as a result, there was no cross-examination. Mrs Wickerson was examined by counsel for the respondent in Jersey in February 2007. Mr Corp appeared by counsel on this occasion, and an extensive cross-examination was undertaken.
25 Mrs Wickerson said in evidence that she first met Mr Corp in Perth and, subsequently, on two or three occasions. On Mr Corp's instructions, and as his accountant, she arranged for the incorporation of Davenrite, Happle and Courtenay and the engagement of Atticus and Ciaga. She said that Ciaga was a corporate director in a nominee capacity only in that all decisions were carried out at her request and she, in turn, acted only on Mr Corp's instructions. Mrs Wickerson said that she carried out extensive administrative and accounting work on behalf of Mr Corp in relation to Davenrite, Happle and Courtenay. Each of the companies held shares in HLM and WSM, and she arranged for proxies to be completed, signed and lodged for general meetings of HLM and WSM.
26 Geoffrey Norway was a director of Atticus and Ciaga. He gave evidence at the trial that he acted solely on Mrs Wickerson's instructions in completing and signing any documents on behalf of Davenrite, Happle or Courtenay. Before 10 January 1997, he did not know the identity of the beneficial owner of the shares in Davenrite, Happle and Courtenay. On that date Mrs Wickerson informed him that Mr Corp was the beneficial owner.
27 Mrs Wickerson gave evidence that she lodged notices with the ASC setting out particulars of relevant interests in the shares in WSM and HLM held by Davenrite, Happle and Courtenay, but she falsely omitted to disclose Mr Corp's relevant interest. See ss 717 - 719, 722 of the Corporations Law. By letter dated 12 July 1995 from Mrs Wickerson to the ASC, she falsely informed the ASC that shares in HLM held by Davenrite were held and administered for the benefit of the family of Alex Pereira. She said in evidence that Mr Corp had drafted the letter and she had sent it to the ASC on his instructions.
28 Mrs Wickerson said in evidence that all of her actions in relation to Davenrite, Happle and Courtenay were as a result of instructions from Mr Corp. She never acted independently. She and Mrs Dodd created documents on his instructions and, on occasions, she had been instructed to backdate documents.
29 Mrs Wickerson identified documents which Abacus had prepared and sent to instructing brokers between 1991 and 1998 in relation to the exercise of options in WSM and HLM, and the completion and lodgement of proxies, on behalf of Davenrite, Happle and Courtenay. She prepared and sent these documents in accordance with Mr Corp's instructions.
30 Mrs Wickerson said, in evidence-in-chief, that in 1994 Mr Corp asked her to destroy facsimile instructions which he had sent her and, in response to those instructions, she destroyed the documents. However, when asked in cross-examination when it was that Mr Corp asked her to destroy the facsimile instructions, Mrs Wickerson said she did not remember.
31 Deanna Soares, a filing clerk employed by Abacus, gave evidence that she was requested in June 1997 to shred documents from Abacus's files relating to Davenrite, Happle and Courtenay. She added that all she remembered was she had shredded the documents when Abacus carried on business at an address at Lancaster Mews in London, 'just before' it moved to Bromley in Kent. Other evidence proved that Abacus was still carrying on business at Lancaster Mews in 1998.
32 Mrs Wickerson gave evidence that, in late 1997 or early 1998, Mr Corp contacted her and requested that she locate new beneficial owners for Davenrite, Happle and Courtenay. She was to 'give them away'. She contacted Mr Pereira, a taxation consultant who undertook work for Abacus from time to time, and believed that he spoke to some friends about accepting beneficial ownership of the companies. The respondent's case at trial was that Mr Pereira became the beneficial owner of Davenrite, John Rump became the beneficial owner of Happle, and Eugene Wollschlager became the beneficial owner of Courtenay. Mrs Wickerson said in evidence that in late 1997 or early 1998 she informed Mr Corp that new beneficial owners had been found for the companies.
33 The respondent adduced evidence which established that between 28 November 1995 and 14 January 1998, 48 facsimile transmissions were sent from the offices of BMS in Perth to Abacus in London, and that between 9 December 1993 and 9 February 1998, 79 facsimile transmissions were sent from Abacus in London to the offices of BMS in Perth. There was also evidence as to the number of telephone calls during the 4-year period in question between the offices of BMS in Perth and Abacus in London.
34 Mrs Dodd's evidence substantially corroborated Mrs Wickerson's evidence to the effect that the incorporation and administration of Davenrite, Happle and Courtenay had been undertaken in accordance with Mr Corp's oral and written instructions.
35 An aspect of Mr Corp's case at trial was that at all material times Mr Pereira, Mr Rump and Mr Wollschlager were the true beneficial owners of Davenrite, Happle and Courtenay respectively.
36 Mr Pereira said in evidence that Mrs Wickerson approached him in late 1997 or early 1998 to take an interest in Davenrite. He said that he did so, in a nominee capacity. He was paid ₤10,000 for his services.
37 Mr Rump gave evidence that he was a personal friend (and, subsequently, the partner) of Mrs Wickerson. He said that Mrs Wickerson requested him to play a role in a company. After checking with Mrs Wickerson that he would not incur any liability or responsibility, he agreed to become involved with Happle and was paid ₤10,000 for his services.
38 Mr Wollschlager died before the trial. His written statement was read into evidence. The statement was to the effect that when he was first asked by Mr Pereira to provide his signature to Abacus, he did not ask for, and was not given, an explanation for the request, and 'took no notice of what [he] signed'. Subsequently he became aware, in June 1999, that he had signed documents relating to Courtenay.
39 The respondent relied on the evidence of Mr Corp gifting the companies (including their assets, which were worth hundreds of thousands of dollars) to Mr Pereira, Mr Rump and Mr Wollschlager, in combination with his instructions that documents should be destroyed, as evidence that 'he knew he had done wrong' and of a 'general consciousness of guilt'. Mr Corp's case, in this respect, was that it was most unlikely he would simply 'give away' companies with such significant assets.
40 Michael Ruane gave evidence that he was a director and shareholder of WSM between January 1994 and October 1996. He said that when he joined the company it shared offices in West Perth with other companies managed by Mr Smith and Mr Corp. In about 1994, Mr Corp had introduced him to Mrs Wickerson at those offices.
41 Mr Ruane said in evidence that WSM and HML operated from the West Perth premises, and shared a facsimile machine and facsimile telephone number. It was his habit to examine facsimile transmissions which had been received for the purpose of collecting correspondence relevant to his 'situation in the company'. He noticed that, quite often, there were facsimile transmissions to Mr Smith and Mr Corp including in relation to WSM. He said that he made copies of some of the original facsimile transmissions from time to time, and later gave those copies to the ASC. Mr Ruane was not cross-examined at the trial. Copy facsimile transmissions from Abacus to Mr Corp which Mr Ruane produced were relied on by the respondent as demonstrating that Mrs Wickerson 'look[ed] to [Mr Corp] for instructions' when it was necessary for payments to be made on behalf of Davenrite, Happle or Courtenay. Also, those copy facsimile transmissions showed that Mrs Wickerson had informed Mr Corp of the 'beneficial ownership' notices which Abacus had lodged with the ASC and which omitted to disclose his relevant interest in the shares in question.
42 Mr Ruane was not examined about the procedure at general meetings of WSM and HML, including whether resolutions were passed on a show of hands, whether a poll was demanded or whether the proxies were taken into account.
43 Tanya Sly (nèe Reinikka) gave evidence that she was the receptionist/secretary with BMS between 1991 and August/September 1994. One of her responsibilities, in relation to the general meetings of WSM and HLM, was to compile details of the proxies as they arrived at the office. She tallied the proxies and checked them against the register of shareholders. Ms Sly said she could not remember attending any of the general meetings of WSM or HLM. She conceded in cross-examination that she was unaware of the procedure adopted at the general meetings in relation to the passing of resolutions. Ms Sly prepared the minutes of each general meeting. For that purpose, she was given the agenda of the meeting, with some handwritten notations.
44 Keeli Robson was called as a witness. She was employed by BMS as an accountant between October 1993 and January 1997. She attended one general meeting of either WSM or HLM, but did not have much recollection of it.
45 Lee Ann Maxfield gave evidence that she was employed by BMS as an accountant/office manager between January 1997 and September 1998. In January 1998, she became aware of an attempt by Mr Ruane to change the composition of the board of directors of WSM. She said Mr Corp's demeanour before the meeting was 'quietly confident of having enough proxies'. She said he looked at the proxies as they arrived at the office.
46 Kerrie Papamihail, an investigator with the Australian Securities and Investments Commission (ASIC), gave evidence and produced documents which had been lodged with the ASC by Mr Corp in his capacity as a director of WSM or HLM. This evidence was not in dispute.
47 Mr Smith and Mr Corp relied on evidence of good character. It was contended that the allegations made by the respondent required each of them to act entirely out of character, and was motiveless. There was nothing to suggest that Mr Smith and Mr Corp had obtained benefits, from voting the proxies in respect of the shares in question, that they would not otherwise have received had the resolutions been passed by a show of hands.
Appeals against conviction: grounds of appeal
48 Before the hearing of the appeals, each of Mr Smith's and Mr Corp's appeal against conviction comprised 11 grounds. At the hearing, however, Mr Smith abandoned his grounds 2, 3, 4 and 6, and Mr Corp abandoned his grounds 1, 2 and 3. There is substantial overlap between the grounds relied on by them, and it is therefore convenient, where there is overlap, to consider the relevant grounds together.
Appeals against conviction: Mr Smith's ground 5 and Mr Corp's ground 4
By reason of [Mr Smith] not being arraigned upon the new counts 2B, 3B, 4B, 5B, 8B and 32B that were added to the indictment, the trial of [Mr Smith] on these counts was a nullity as the jury were not sworn to try the issues joined between the Crown and [Mr Smith] upon them.
Mr Corp's ground 4 is in similar terms. It alleges that:
By reason of [Mr Corp] ... not being arraigned upon the new, individual counts 2A, 3A, 4A, 5A, 8A and 32A following the 'amendment' of the joint counts, the trial from that point on those counts became a nullity.
50 At the commencement of the trial, Mr Smith and Mr Corp were arraigned on counts 2, 3, 4, 5, 8 and 32. Count 2 is representative of those counts. It provided:
On or about 21 August 1991 at Perth in the State of Western Australia Stuart Adrian CORP and Brian Millwood SMITH failed to act honestly in the exercise of their powers and the discharge of the duties of their office as directors of Welcome Stranger Mining Company NL with intent to deceive Welcome Stranger Mining Company NL and its members and thereby did commit an offence by virtue of subsection 1311(1) of the Corporations Law in that they contravened subsection 232(2) of the Corporations Law as taken to be included in the Corporations Act 2001 by section 1401 of that Act.
Particulars of Resolution
The Directors be empowered to grant at their discretion up to 1,000,000 31 December 1994 options to subscribe to fully paid ordinary shares of $0.20 each to BMS Consultants Pty Ltd, a company providing management services to the Company. The exercise price to be 80% of the market value of the Company's fully paid shares at the date of issue.
Note: Those persons associated in accordance with Division 2 of the Corporations Law with BMS Consultants Pty Ltd will abstain from voting on this resolution.
51 The respondent provided detailed particulars in relation to each of the counts. The particulars of count 2 (which are representative of the particulars of counts 3, 4, 5, 8 and 32) are these:
2.1 On or about 8 August 1991 WSM lodged a 'Notice of Annual General Meeting & Proxy Form' with Australian Stock Exchange (Adelaide) Ltd.
2.2 The document was signed by Corp as company secretary of WSM and was dated 24 July 1991.
2.3 The document read, in part:
'Notice is hereby given that an Annual General Meeting of the Shareholders of Welcome Stranger Mining Company NL will be held at Level One, 57 Havelock Street, West Perth, Western Australia on Wednesday 21 August 1991 at 9.00 am [...]
Special Business
To be proposed as Special Resolution:
5. The Directors be empowered to grant at their discretion up to 1,000,000 31 December 1994 options to subscribe to fully paid ordinary shares of $0.20 each to BMS Consultants Pty Ltd, a company providing management services to the Company. The exercise price to be 80% of the market value of the Company's fully paid shares at the date of issue.
Note: Those persons associated in accordance with Division 2 of the Corporations Law with BMS Consultants Pty Ltd will abstain from voting on this resolution'
2.4 In or about August 1991 Corp instructed Abacus London Ltd that all WSM shares held on behalf of Davenrite Ltd were to be voted in favour of Special Resolution 5 at the WSM Annual General Meeting ('AGM') to be held on 21 August 1991.
2.5 As at 21 August 1991 the 800,000 WSM shares registered to National Nominees Ltd were held on behalf of Davenrite Ltd.
2.6 As at 21 August 1991 the 800,000 WSM shares registered to Bank of New South Wales Nominees Ltd were held on behalf of Davenrite Ltd.
2.7 On 21 August 1991 at the WSM AGM 800,000 shares registered to National Nominees Ltd and 800,000 registered to Bank of New South Wales Nominees Pty Ltd voted in favour of Special Resolution 5.
2.8 On or about 21 August 1991 Corp exercised a power to vote in relation to WSM shares held on behalf of Davenrite Ltd, despite being an associate of BMS Consultants Pty Ltd, and stating that those persons associated with BMS Consultants Pty Ltd would abstain from voting on the resolution.
2.9 As an officer of the company, Corp allowed the proxy votes to be counted in circumstances where he knew that his interest in the shares held on behalf of Davenrite Ltd had not been disclosed, thereby intentionally deceiving the company and its members. In doing so, Corp acted in circumstances where his personal interests were in conflict with his duty to the company. In allowing the votes to be counted in these circumstances, Corp used his position for the purpose of gaining an advantage for himself and Brian Millwood Smith (Smith).
52 None of the particulars was amended as a result of the splitting of each of counts 2, 3, 4, 5, 8 and 32 into two separate counts.
53 The arraignment on count 2 (which was representative of the arraignment on counts 3, 4, 5, 8 and 32) was in these terms:
THE CLERK OF ARRAIGNS: And further, that on or about 2 August 1991 at Perth in the State of Western Australia you and each of you failed to act honestly in the exercise of your powers and the discharge of the duties of your office as directors of Welcome Stranger Mining Co NL with intent to deceive Welcome Stranger Mining Co NL and its members and thereby did commit an offence by virtue of subsection 1311(1) of the Corporations Law in that you and each of you contravened subsection 232(2) of the Corporations Law as taken to be included in the Corporations Act 2001 by section 1401 of that Act. How say you, Stuart Adrian Corp: Are you guilty or not guilty?
THE ACCUSED CORP: I am not guilty.
THE CLERK OF ARRAIGNS: How say you, Brian Millward Smith? Are you guilty or not guilty?
THE ACCUSED SMITH: I am not guilty (ts 1214 - 1215).
54 The learned trial judge's reasons for allowing the respondent's application to amend the indictment (made after the respondent had closed its case) to split each of counts 2, 3, 4, 5, 8 and 32 into two separate counts, were as follows:
Counts 2, 3, 4, 5, 8 and 32 in the indictment are, as we all know, charges against both accused people where they are charged jointly. As I understood, however, the evidence of the prosecution, much of which was prerecorded, suggests that each accused committed an offence in his own right, not in the context of joint criminal enterprise where both commit the one offence, thus it is that each count alleges two offences, one against each accused, and it is therefore not in compliance with the Criminal Procedure Act as I have already found. Consequently the prosecution applies to split the counts, which is obviously to amend the indictment.
...
Given the issues that have been raised during this trial by the defence as can be gleaned from the cross examination of witnesses that have been called and the opening, I don't think the amendment prejudices the accused's defence. I am not satisfied that it prejudices the accused's defence. ...
... I am not satisfied the amendment is material to the merits of the case, therefore I am going to allow the amendment, the charges can be split and the trial will go on on those as well as the balance of the counts (ts 3010).
55 Counts 2A and 2B (which are representative of counts 3A, 3B, 4A, 4B, 5A, 5B, 8A, 8B, 32A and 32B) read:
Charge 2A On or about 21 August 1991 at Perth in the State of Western Australia Stuart Adrian CORP failed to act honestly in the exercise of his powers and the discharge of the duties of his office as a director of Welcome Stranger Mining Company NL with intent to deceive Welcome Stranger Mining Company NL and its members and thereby did commit an offence by virtue of subsection 1311(1) of the Corporations Law in that he contravened subsection 232(2) of the Corporations Law as taken to be included in the Corporations Act 2001 by section 1401 of that Act.
Particulars of Resolution
The Directors be empowered to grant at their discretion up to 1,000,000 31 December 1994 options to subscribe to fully paid ordinary shares of $0.20 each to BMS Consultants Pty Ltd, a company providing management services to the Company. The exercise price to be 80% of the market value of the Company's fully paid shares at the date of issue.
Note: Those persons associated in accordance with Division 2 of the Corporations Law with BMS Consultants Pty Ltd will abstain from voting on this resolution.
Charge 2B On or about 21 August 1991 at Perth in the State of Western Australia Brian Millwood Smith failed to act honestly in the exercise of his powers and the discharge of the duties of his office as a director of Welcome Stranger Mining Company NL with intent to deceive Welcome Stranger Mining Company NL and its members and thereby did commit an offence by virtue of subsection 1311(1) of the Corporations Law in that he contravened subsection 232(2) of the Corporations Law as taken to be included in the Corporations Act 2001 by section 1401 of that Act.
Particulars of Resolution
The Directors be empowered to grant at their discretion up to 1,000,000 31 December 1994 options to subscribe to fully paid ordinary shares of $0.20 each to BMS Consultants Pty Ltd, a company providing management services to the Company. The exercise price to be 80% of the market value of the Company's fully paid shares at the date of issue.
Note: Those persons associated in accordance with Division 2 of the Corporations Law with BMS Consultants Pty Ltd will abstain from voting on this resolution.
56 Counsel for Mr Corp submitted to this court that the only issues which the jury was sworn and empanelled to try were those raised by Mr Corp's pleas to the counts in the original indictment. It was not open, as a matter of law, to replace counts 2, 3, 4, 5, 8 and 32 with new counts (namely, counts 2A, 3A, 4A, 5A, 8A and 32A) without Mr Corp being re-arraigned on the new counts. Although amendment of the indictment was permissible, the amendment did not dispense with 'the fundamental requirement that the jury be sworn to consider the issues before them'.
57 According to counsel for Mr Corp, counts 2, 3, 4, 5, 8 and 32 of the original indictment alleged joint offences. In particular, those counts alleged that Mr Smith and Mr Corp committed each offence pursuant to a common purpose. The form of counts 2, 3, 4, 5, 8 and 32, and the manner in which each of them was put to the jury by counsel for the respondent in opening, alleged that each of Mr Smith and Mr Corp had breached his duties as a director not only by permitting proxies for shares in which he had an undisclosed relevant interest to be voted on specific resolutions at general meetings of WSM and HLM, but also in permitting proxies for shares in which the other of them had an undisclosed relevant interest to be counted. Those were the issues which the jury was sworn to try following the arraignment. By contrast, the new counts (that is, counts 2A, 3A, 4A, 5A, 8A and 32A) did not involve an allegation of joint criminality against Mr Smith and Mr Corp pursuant to a common purpose.
58 Counsel for Mr Corp submitted that the amendment of the original indictment was an amendment of a substantial character, and the new counts introduced a new element into the trial. The failure to re-arraign on the new counts made the trial a nullity in relation to those counts. Alternatively, the failure to re-arraign gave rise to a serious miscarriage of justice which requires the convictions on the new counts to be quashed, and a re-trial ordered on those counts.
59 Mr Smith made submissions in relation to his ground 5 which are not materially different from the submissions made in relation to Mr Corp's ground 4.
Appeals against conviction: Mr Smith's ground 5 and Mr Corp's ground 4: the merits of the grounds
60 Section 85(1) of the Criminal Procedure Act 2004 (WA) provides that Sch 1 to the Act has effect in relation to indictments and charges in them. By cl 2(4) of Sch 1, a charge must allege one offence only, unless cl 8 or another written law permits otherwise. In the present case, the exceptions to the general rule in cl 2(4) are not relevant. The term 'charge' means a written allegation in a prosecution notice or indictment that a person has committed an offence: s 3(1) of the Act.
61 Section 132(3) of the Criminal Procedure Act provides that a court, on the application of the prosecutor, may amend a charge. By s 132(5):
If one charge alleges 2 or more offences and a court is satisfied that the one charge is not permitted by Schedule 1 clause 8, it may amend the prosecution notice or indictment containing the charge so that each of the offences is the subject of a separate charge.
62 Section 132(8) provides that if a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused's defence of the prosecution notice or indictment or of a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires.
63 Section 132(9) provides that if a court amends a prosecution notice or indictment to include a separate charge and at the time of the amendment a trial of the prosecution notice or indictment is in progress, the court:
(a) may discontinue the trial of all of the charges in, and adjourn, the prosecution notice or indictment; or
(b) may continue with the trial of any charge in the prosecution notice or indictment, other than the charge that has been included, and adjourn that charge.
64 Section 132(10) provides that a court may refuse to amend a charge, prosecution notice or indictment if it is satisfied:
(a) the amendment is material to the merits of the case;
(b) the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and
(c) an adjournment would not overcome the prejudice.
65 The statutory power of amendment in s 132 of the Criminal Procedure Act displaces the common law rule that an indictment could not be amended. See Maher v The Queen [1987] HCA 31; (1987) 163 CLR 221, 230 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ). In Maher, the accused pleaded not guilty to 19 counts originally in the indictment. He also pleaded not guilty to two further counts added to the indictment after the jury had been sworn. The trial judge had the accused re-arraigned on the new counts. The High Court held that there was no statutory provision authorising an amendment of the indictment by adding the further counts and, in consequence, the issues which the jury were to try could not include issues raised by a plea of not guilty to those counts. Re-arraigning the accused on the new counts and giving him in charge of the jury on the new counts did not alter the issues which the jury had been sworn to try. The original jury oath did not extend to issues which could not be lawfully added to the issues then raised by the pleas of not guilty to the 19 counts originally in the indictment.
66 In Go v The Queen [1990] NTSC 40; (1990) 73 NTR 1, the appellant was charged and pleaded not guilty to three counts. On the sixth day of the trial the Crown applied for and was given leave to amend the first count. After the amendment the appellant was not re-arraigned. The appellant was convicted on the first and third counts. She appealed against her convictions on several grounds, including that the amendment to the first count should not have been allowed and that she should have been re-arraigned after the amendment. The Court of Criminal Appeal of the Northern Territory dismissed the appeal. Asche CJ (with whom Gallop and Angel JJ relevantly agreed) said that the ultimate test in relation to a failure to re-arraign an accused after an amendment to the indictment is whether there was any injustice to the accused from the failure to re-arraign. His Honour held that, on the facts of the case before him, the appellant and her counsel and the jury were fully aware of the terms of the amended charge, and the prosecution had not been and was not thereafter conducted in any different way and, as a result, no injustice to the appellant had occurred, and there was no basis on which it could be said that a miscarriage of justice had been occasioned from the failure to re-arraign.
67 In R v B [1999] SASC 403, the appellant was convicted of two counts of indecent assault and one count of unlawful sexual intercourse with his daughter. The second count was amended in the course of the trial. The offence originally the subject of the second count was a statutory offence created by s 49(1) of the Criminal Law Consolidation Act 1935 (SA), in which the age of the victim was an element. The second count was amended to allege a different offence, namely, the offence created by s 49(3) of the Criminal Law Consolidation Act. Section 49(4) provided a defence to a charge under s 49(3) which was not available to a charge under s 49(1). The appellant was not re-arraigned on the new charge under s 49(3) after the amendment. No point was taken in relation to that failure. In the Court of Criminal Appeal of South Australia, Lander J (with whom Millhouse and Duggan JJ agreed) held that the appellant was right not to complain of the failure to re-arraign because no prejudice was caused by the failure [121]. His Honour added that neither the appellant nor his counsel could have been under any misapprehension as to the charge on the second count. Further, his Honour observed:
The amendment to count 2 did not cause the appellant any embarrassment or prejudice. The evidence as to when this incident occurred was all to the same effect; the day Dianne B went to stay at the Lonsdale Hotel was in April 1997. The complainant, the appellant and his witnesses all addressed that event.
The amendments did not cause any prejudice or any injustice to the appellant [122] - [123].
68 Recently, in Ayles v The Queen [2008] HCA 6; (2008) 82 ALJR 502, Kiefel J (with whom Gleeson CJ agreed and Heydon J agreed generally) observed that re-arraignment is usually required where the amendment is of real significance to an accused, but not where the new charge is essentially the same [83].
69 In my opinion, counts 2, 3, 4, 5, 8 and 32 in the original indictment did not allege that Mr Smith and Mr Corp engaged in a joint criminal enterprise whereby they agreed to commit one offence and that then one of them, or both between them, did all the things necessary to commit the one offence. It is apparent, from the terms of the charges (which alleged Mr Smith and Mr Corp had failed to act honestly in the exercise of 'their powers and the discharge of the duties of their office' as directors), the particulars of the charges (which alleged each of Mr Smith and Mr Corp acted in respect of only the undisclosed shares in which he had a relevant interest) and the opening address of counsel for the respondent that the respondent's case in relation to counts 2, 3, 4, 5, 8 and 32 was that Mr Smith and Mr Corp had each committed the offences in question in his own right. In other words, the respondent's case in relation to counts 2, 3, 4, 5, 8 and 32 was that each of Mr Smith and Mr Corp breached his individual duty as a director of WSM and a director of HLM. The respondent contended that Mr Smith and Mr Corp acted with the knowledge of what the other was doing and in furtherance of a common purpose or aim, namely, to ensure that the outcome of the vote on the relevant resolutions would benefit each and both of them. It did not follow from the allegation that each of Mr Smith and Mr Corp committed individual offences, in the knowledge and expectation the other would act in a similar way and with the same aim, that the respondent's case was that they jointly committed the one offence; that is, the one breach of director's duty.
70 The clerk of arraigns, in arraigning Mr Smith and Mr Corp on the charges in question in the original indictment, put to each of them that 'you and each of you failed to act honestly in the exercise of your powers and the discharge of the duties of your office as directors ...' The words 'and each of you' indicate that the respondent alleged each of Mr Smith and Mr Corp breached his individual duty as a director of WSM and a director of HLM.
71 The splitting of the counts did not result in any additional evidence being adduced, or any different allegation being made, against Mr Smith or Mr Corp after the respondent had closed its case. Also, the splitting of the counts did not introduce a new element to the trial.
72 In my opinion, the amendment to the indictment did not require re-arraignment. The new charges as expressed in the amended indictment were in essence the same as the original charges. No prejudice was caused to Mr Smith or Mr Corp. Neither Mr Smith and Mr Corp nor the jury could have been under any misapprehension concerning the new charges consequent upon the amendment to the indictment. Although the amendment was made late in the proceedings, it is apparent that Mr Smith and Mr Corp did not suffer any relevant prejudice. No miscarriage of justice has occurred.
73 Mr Smith's ground 5 and Mr Corp's ground 4 fail.
Appeals against conviction: Mr Smith's ground 9 and Mr Corp's ground 5
The verdicts of guilty on counts 2B, 3B, 4B, 5B, 8B, 26 & 27 are unreasonable or cannot be supported having regard to the evidence.
PARTICULARS
It was not open to the jury to be satisfied beyond reasonable doubt that the shares that were represented by the relevant proxy forms actually voted on the resolutions that were the subject of each count.
Mr Corp's ground 5 is in identical terms in relation to the corresponding counts applicable to him, namely, counts 2A, 3A, 4A, 5A, 8A, 24 and 25.
75 Count 2A against Mr Corp is representative of the charges against him in counts 3A, 4A, 5A and 8A. Count 2B against Mr Smith is representative of the charges against him in counts 3B, 4B, 5B and 8B. I have set out counts 2A and 2B at [55] above, and the particulars of count 2 at [51] above.
76 Counts 2A, 2B, 3A and 3B relate to a general meeting of WSM held on 21 August 1991. Counts 4A, 4B, 5A and 5B relate to a general meeting of HLM held on 28 August 1991. Counts 8A and 8B relate to a general meeting of WSM held on 19 August 1992.
77 Count 24 against Mr Corp is representative of the charge against him in count 25. Count 26 against Mr Smith is representative of the charge against him in count 27. There is no material difference, for present purposes, between counts 24, 25, 26 and 27. Each of them relates to a general meeting of HLM held on 23 October 1996.
On or about 23 October 1996 at Perth in the State of Western Australia Stuart Adrian CORP, being a related party of a public company, namely Hallmark Gold NL, contravened subsection 243ZF(6) of the Corporations Law, in that at a general meeting of the said Hallmark Gold NL, a vote was cast on behalf of the said Stuart Adrian Corp by Barclays Australian Custodian Services Ltd on a resolution under Division 5 of Part 3.2A (as particularised below) that was passed and that would permit a financial benefit to be given to the said Stuart Adrian Corp, contrary to subsection 1311(1) of the Corporations Law, as taken to be included in the Corporations Act 2001 by section 1401 of that Act.
Particulars of Resolution
Resolution 5 - Grant of Options to Stuart Adrian Corp, Executive Director
'That subject to the passing and coming into effect of Special Resolution 3 specified in this Notice of Annual General Meeting and in accordance with Part 3.2A of the Corporations Law and Listing Rule 10.11 of Australian Stock Exchange Ltd, the Company be authorised to grant 1 million unlisted options to Stuart Adrian Corp or his nominee for no consideration, each option entitling the holder to subscribe for one fully paid ordinary share of 5 cents par value in the Company at a price of 20 cents on or before 31 January 2000 and otherwise on the terms and conditions set out in the Explanatory Memorandum that forms part of this Notice of Annual General Meeting.'
24.1 On 23 October 1996 an AGM of HLM was held in Perth.
24.2 The following special resolution was passed at the HLM AGM on 23 October 1996:
'Resolution 5 - Grant of Options to Stuart Adrian Corp, Executive Director
That, subject to the passing and coming into effect of Special Resolution 3 specified in this Notice of Annual General Meeting and in accordance with Part 3.2A of the Corporations Law and Listing Rule 10.11 of Australian Stock Exchange Ltd, the Company be authorised to grant 1 million unlisted options to Stuart Adrian Corp or his nominee for no consideration, each option entitling the holder to subscribe for one fully paid ordinary share of 5 cents par value in the Company at a price of 20 cents on or before 31 January 2000 and otherwise on the terms and conditions set out in the Explanatory Memorandum that forms part of this Notice of Annual General Meeting.
Voting Exclusion Statement
The Company disregarded any votes cast on any of resolutions 4, 5 or 6 by:
Brian Millwood Smith, Stuart Adrian Corp or Kevin Ernest Judge; and an associate of that person (or those persons). However the Company did not disregard a vote if [sic]:
If it was cast by a person as proxy for a person who was entitled to vote in accordance with the directions on the proxy form; or
It was cast by the person chairing the meeting as proxy for a person who was entitled to vote in accordance with a direction on the proxy form to vote as the proxy decides.'
24.3 On or about October 1996 Corp instructed Abacus London Ltd that proxy forms were to be lodged with HLM and that all HLM shares held on behalf of Happle Ltd were to be voted in favour of all resolutions at the HLM AGM on 23 October 1996.
24.4 As at 23 October 1996 970,946 HLM shares registered to Barclays Australia Custodian Services Ltd were held on behalf of Happle Ltd and voted in favour of Special Resolution 5 at the AGM.
24.5 At all material times Corp had the power to control the exercise of the right to vote attached to the shares held on behalf of Happle Ltd and thus the votes were cast on behalf of Corp.
80 Counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B alleged, relevantly, contraventions of s 232(2) of the Corporations Law.
81 Section 232(2) provided:
An officer of a corporation shall at all times act honestly in the exercise of his or her powers and the discharge of the duties of his or her office.
82 Counts 24, 25, 26 and 27 alleged, relevantly, contraventions of s 243ZF(6) of the Corporations Law.
(1) At a general meeting, a vote on a proposed resolution under Division 5 must not be cast (in any capacity) by or on behalf of:
(a) a related party of the public company to whom the resolution would permit a financial benefit to be given; or
(b) an associate of such a related party.
(2) Subsection (1) does not prevent the casting of a vote if:
(a) it is cast by a person as a proxy appointed by writing that specifies how the proxy is to vote on the proposed resolution; and
(b) it is not cast on behalf of a related party or associate of a kind referred to in subsection (1).
...
(6) If a vote is cast in contravention of subsection (1), the related party or associate, as the case may be, contravenes this subsection, whether or not the proposed resolution is passed.
(7) For the purposes of this section, a vote is cast on behalf of an entity if, and only if, it is cast:
(a) as proxy for the entity; or
(b) otherwise on behalf of the entity; or
(c) in respect of a share in respect of which the entity has power to vote as defined in section 30.
84 Section 30(2) of the Corporations Law provided that power to vote in respect of a share is power to exercise, or to control the exercise of, the right to vote attached to the share. By s 30(4), relevantly, a reference to power includes a reference to power that is direct or indirect or is, or can be, exercised as a result of, by means of, in breach of, or by revocation of, trusts, relevant agreements and practices, or any of them, whether or not they are enforceable. Section 31(1) provided that, except for the purposes of ss 234, 235 and 236, a person who has power to vote in respect of a voting share in a body corporate has a relevant interest in the share. Section 32 provided:
Where a body corporate has, or is by this Division deemed to have:
(a) power to vote in respect of a share; or
(b) power to dispose of a share;
a person shall be deemed for the purposes of this Division to have in relation to the share the same power as the body has, or is deemed to have, if:
(c) the body is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person in relation to the exercise of the power referred to in paragraph (a) or (b); or
(d) the person has a controlling interest in the body.
85 Section 243ZB of the Corporations Law was concerned with voting on a proposed resolution of a public company in general meeting to permit a financial benefit to be given to a related party of the public company. It provided:
(1) If any votes on the resolution are cast in contravention of subsection 243ZF(1), it must be the case that the resolution would still be passed even if those votes were disregarded.
(2) If a poll was duly demanded on the question that the resolution be passed, subsections (3) and (4) apply in relation to voting on the poll.
(3) In relation to each member of the public company who voted on the resolution in person, the public company must record in writing:
(a) the member's name; and
(b) how many votes the member cast for the resolution and how many against.
(4) In relation to each member of the public company who voted on the resolution by proxy, or by a representative authorised under subsection 249(3), the public company must record in writing:
(a) the member's name; and
(b) in relation to each person who voted as proxy, or as such a representative, for the member:
(i) the person's name; and
(ii) how many votes the person cast on the resolution as proxy, or as such a representative, for the member; and
(iii) how many of those votes the person cast for the resolution and how many against.
86 By s 250(2) of the Corporations Law, a proxy appointed to attend and vote instead of a member had the same right as the member to speak at the meeting but, unless the articles otherwise provided, a proxy was not entitled to vote except on a poll.
87 Section 253(5) of the Corporations Law provided that at a meeting at which a special resolution was submitted, a declaration of the chairman that the resolution was carried was, unless a poll was demanded, conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. By s 253(7), in computing the majority on a poll demanded on the question that a special resolution be passed, reference was required to be had to the number of votes cast for and against the resolution and to the number of votes to which each member was entitled by the Law or the articles of the company.
88 For present purposes, there is no material difference between the articles of association of WSM and the articles of association of HLM.
89 Clause 12.8 of the articles of association set out the voting rights of the members. Relevantly, for present purposes, cl 12.8 provided:
(a) each Shareholder entitled to vote may vote in person or by proxy, attorney or Representative;
(b) on a show of hands, every person present who is a Shareholder or a proxy, attorney or Representative of a Shareholder has one vote; and
(c) on a poll, every person present who is a Shareholder or a proxy, attorney or Representative of a Shareholder shall, in respect of each fully paid Share held by him, or in respect of which he is appointed a proxy, attorney or Representative, have one vote for the Share, but in respect of partly paid Shares, shall have such number of votes as bears the same proportion to the total of such Shares registered in the Shareholder's name as the amount of the issue price thereof paid up bears to the total issue price.
90 Clause 12.9 provided that a resolution put to the vote of the general meeting shall be decided by a show of hands unless a poll was demanded in accordance with cl 12.11.
91 By cl 12.11, a poll may be demanded immediately upon or before the declaration of the result of a show of hands by:
(a) the chairman of the General Meeting;
(b) at least five shareholders present in person or by proxy, attorney or Representative; or
(c) any one or more shareholders holding not less than 10% of the total voting rights of all shareholders having the right to vote on the resolution.
92 Clause 12.12 provided, relevantly, that if a poll was duly demanded, it shall be taken in such manner and either at once or after an interval or adjournment or otherwise as the chairman directs, and the result of the poll shall be the resolution of the general meeting at which the poll was demanded.
93 Counsel for the respondent argued, in his closing address, that the jury should infer that the proxies in question had been 'taken into account' given 'the efforts that were gone to to have these proxies completed and submitted. Would they go to those sorts of efforts unless they wanted those proxies taken into account and why would they need those proxies taken into account at the meeting?' (ts 3098).
94 The learned trial judge directed the jury that they could not convict Mr Smith of the offences the subject of counts 2B, 3B, 4B, 5B, 8B, 26 and 27 or Mr Corp of the offences the subject of counts 2A, 3A, 4A, 5A, 8A, 24 and 25 unless they were satisfied beyond reasonable doubt that the proxy votes in question were cast, 'in the sense of taken into account, considered, voted' (ts 3367). Later, his Honour directed the jury, in response to questions from them after they had retired, that in order to convict Mr Smith and Mr Corp of the relevant offences they had to be satisfied beyond reasonable doubt that the shares represented by the proxy forms in question were voted at the relevant meetings, in the sense that they were 'taken into account in determining whether the resolution was passed' (ts 3444 - 3445).
95 Counsel for the respondent submitted to this court that whether the procedures specified in the articles of association of WSM and HLM in relation to voting on resolutions at general meetings were followed or not is not determinative of whether the proxies in question were in fact voted; that is, 'taken into account' in determining whether the resolutions were passed. According to counsel, the mere fact that there had been no vote by a show of hands and the mere fact that no poll had been called (assuming the jury were not satisfied beyond reasonable doubt that one or other of those events occurred) were simply two of a number of factors that the jury could assess in determining whether they were satisfied beyond reasonable doubt that the proxies were in fact voted. Counsel for the respondent asserted that the evidence established beyond reasonable doubt that the undisclosed shares represented by the proxies in question had been 'taken into account' in determining whether the relevant resolutions were passed. The reasoning and evidence relied on by the respondent are as follows:
(a) The proposed resolutions conferred significant potential financial benefits on Mr Smith and Mr Corp. This was the rationale for the statutory prohibition against Mr Smith and Mr Corp and their respective associates voting. Mr Smith and Mr Corp had powerful reasons for wanting the proxies to be taken into account, namely, that if the proxies were taken into account in deciding whether the resolutions had been passed, there would be the appearance that the relevant resolutions had been passed easily on the vote of a large number of independent shareholders.
(b) Mrs Wickerson and Mrs Dodd gave evidence that Abacus only gave instructions to the brokers who held shares in WSM or HLM on behalf of Davenrite, Happle and Courtenay as to the voting of the shares at general meetings of WSM and HLM if Mr Corp had instructed Abacus to issue such instructions.
(c) Mr Ellis gave evidence that Centurion only gave instructions to the brokers who held shares in WSM or HLM on behalf of Centurion as trustee of the Gold Coast Trust as to the voting of the shares at general meetings of WSM and HLM if Mr Smith made a request or recommendation to Centurion to issue such instructions.
(d) Given that Mr Smith and Mr Corp went to the trouble of requesting that proxies in respect of the shares in question be completed and submitted in time for use at the particular general meeting of WSM or HLM, it is inconceivable that they did not ensure that the proxies were taken into account at the meetings.
(e) The evidence of Ms Sly did not demonstrate that the minutes of the meetings of WSM and HLM between 1991 and 1994 were not a record of proxies that were in fact voted. Ms Sly said in evidence that all of the relevant proxies were, on the instructions of Mr Smith and Mr Corp, received, checked against the register of members, and found to be valid. It can therefore be inferred from her evidence that Mr Smith and Mr Corp knew that the proxies had been received and were available to be used at the meeting. Ms Sly also said in evidence that after the minutes were typed they would 'go back to the bosses to review to make sure they were correct' (ts 2360). She added that the figures in the minutes of the meetings referred to 'the proxies, the voting from the proxies received' (ts 2361).
(f) The proxies and proxy lists were tabled at the meetings. The fact that the proxies had been checked against the register of members and tallied meant that to take the proxy votes into account after tabling them at the meetings required no effort at all.
(g) The minutes of the meetings the subject of counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B do not expressly record that there was a poll. Nor do they record, however, that there was a vote by a show of hands. The fact that the minutes do not record that a poll was taken does not preclude the inference being drawn that the proxy votes were counted. To the contrary, the 'voting figures' recorded in the minutes are consistent only with the inference that the proxies had been taken into account, formally or informally, in determining whether the resolutions were passed.
(h) The minutes of the meetings the subject of counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B may be compared to and contrasted with the minutes the subject of counts 15, 16, 17, 18, 20 and 21 in respect of which Mr Smith was found not guilty and the minutes the subject of counts 12, 13, 14 and 19 in respect of which Mr Corp was found not guilty. The minutes for this second group of counts, which relate to the meetings held on 16 February 1994 and 24 October 1994, record only that the relevant resolutions were passed. No 'voting figures' are recorded. The absence of a record of the 'voting figures' explains the not guilty verdicts returned on these charges.
(i) The minutes of the meeting held on 23 October 1996 (counts 24, 25, 26 and 27) expressly record in respect of the relevant resolution that Mr Smith, in his capacity as chairman, called for a poll.
(j) The minutes of the meetings held on 21 August 1991 (counts 2A, 2B, 3A and 3B) and 23 October 1996 (counts 24, 25, 26 and 27) were signed by Mr Smith, in his capacity as chairman, as a true and correct record of the meetings.
(k) Mr Smith's and Mr Corp's contention that the fact that the 'voting figures' in the minutes replicated the 'voting figures' in the proxy spreadsheets and the agendas for the meetings demonstrates the minutes were not evidence that the proxies were actually voted, does not account for the settling of the minutes by Mr Smith and Mr Corp or the signing of some of the minutes by Mr Smith as a true and correct record. The figures may well be the same because that was the accepted outcome. The contention by Mr Smith and Mr Corp ignores differences which exist, in the case of the meeting held on 21 August 1991, between the 'voting figures' recorded in the proxy spreadsheets and the 'voting figures' for the relevant resolutions as recorded in the minutes.
(l) The concession of Ms Papamihail to the effect that, on the face of the minutes, she could not say whether a poll had been taken or not, is of little significance. It was made solely on the basis of the document shown to her during cross-examination. Moreover, in re-examination she clarified, in effect, her evidence on this issue and made reference to other documents which, in her view, were relevant to the issue of whether or not the proxies were in fact voted and counted on the resolutions.
Counsel for the respondent submitted that, on the basis of the reasoning and evidence which I have recounted, the verdicts the subject of Mr Smith's ground 9 and Mr Corp's ground 5 were reasonable and supported by the evidence.
Appeals against conviction: Mr Smith's ground 9 and Mr Corp's ground 5: the merits of the grounds
96 By s 30(3) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
97 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. Also see Jones v The Queen (1997) 191 CLR 439, 450.
98 In M (523), McHugh J said that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. In Jones (450), Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just.
99 In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that:
upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).
[T]he 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 (493).
Their Honours explained the application of the test:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, 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 to 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 (494 - 495).
Also see Jones (450 - 451). The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones (452); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [25].
100 In Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493[1994] HCA 63; , 69 ALJR 83). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (emphasis in original)
Also see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
101 I will consider, first, the merits of Mr Smith's ground 9 and Mr Corp's ground 5 in relation to counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B. I will then consider the merits of those grounds in relation to counts 24, 25, 26 and 27.
102 A determination of whether the verdicts of guilty on counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B are unreasonable or cannot be supported having regard to the evidence requires an analysis of each count including its particulars, in the context of the statutory provision alleged to have been contravened, for the purpose of determining the alleged conduct of Mr Smith or Mr Corp (as the case may be) on which the respondent relied in relation to those counts. It is convenient to undertake that analysis by reference to count 2A which, as I have mentioned above, is representative of counts 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B.
(b) in the exercise of his powers and the discharge of the duties of his office as a director of WSM;
(c) with intent to deceive WSM and its members; and
(d) thereby contravened s 232(2) of the Corporations Law.
Count 2A then sets out particulars of the resolution passed at the general meeting of WSM on 21 August 1991, namely, that the directors be empowered to grant at their discretion up to 1,000,000 31 December 1994 options to subscribe to fully paid ordinary shares of $0.20 each to BMS with the exercise price to be 80% of the market value of WSM's fully paid shares at the date of issue.
104 The particulars of count 2 allege, relevantly, that:
(a) On or about 21 August 1991, Mr Corp 'exercised a power to vote in relation to WSM shares held on behalf of Davenrite Ltd', despite being an associate of BMS and stating that those persons associated with BMS would abstain from voting on the resolution. See particular 2.8 at [51] above.
(b) As an officer of WSM, Mr Corp 'allowed the proxy votes to be counted' in circumstances where he knew that his interest in the shares held on behalf of Davenrite had not been disclosed, thereby intentionally deceiving WSM and its members. Further, in 'allowing the votes to be counted' in the circumstances alleged, Mr Corp used his position for the purpose of gaining an advantage for himself and Mr Smith. See particular 2.9 at [51] above.
105 The function of particulars is to inform the accused of the legal nature of the offence charged and the particular acts, omissions, matters and things (as the case may be) which are the foundation of the charge. See Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489, 497; R v Saffron (1988) 17 NSWLR 395, 445; Stanton v Abernathy (1990) 19 NSWLR 656, 670 - 671. An accused is not able to plead to the charge unless he or she knows the precise case which is the basis for the charge preferred against him or her. See Ex parte Graham; Re Dowling [1969] 1 NSWR 231, 241; Saffron (447); Stanton (666). The Crown, in criminal proceedings, will normally not be permitted to go outside its particulars, in the interests of a fair trial, but the trial judge has a discretion to permit a departure from the particulars when appropriate. See Saffron (447 - 449, 464).
106 In the present case, the respondent did not seek leave from the learned trial judge to amend or otherwise depart from its particulars.
107 What meaning is to be ascribed to the allegation in particular 2.8 that Mr Corp 'exercised a power to vote' in relation to WSM shares held on behalf of Davenrite?
108 In my opinion, the alleged 'power to vote' referred to in particular 2.8 is the power conferred on Mr Corp by the relevant proxies. This is apparent from particular 2.8 read with particular 2.9, and the manner in which the respondent ran its case at trial. The documents appointing Mr Smith and Mr Corp the proxies of the entities that held the shares in which it was alleged they had a relevant interest were in common form. Each proxy form appointed Mr Smith or Mr Corp (as the case may be) the entity's proxy 'to attend and on a poll vote instead of me/us' at a specified general meeting. None of the proxy forms appointed Mr Smith or Mr Corp (as the case may be) the entity's proxy to vote on a show of hands. The articles of WSM and HLM did, as I have mentioned, specify that on a show of hands on a resolution at a general meeting, every person present who was a member or a proxy, attorney or representative of a member, had one vote. See cl 12.8(b). The respondent's case at trial was, however, that each of the relevant proxies was voted on the basis of one vote in respect of each fully paid share the subject of the proxy.
109 The power to vote conferred on Mr Corp by the proxies was the power to vote the shares in question on a poll demanded at the relevant general meeting and conducted in relation to the resolution identified in count 2A. The alleged 'power to vote' referred to in particular 2.8 does not include 'taking into account' the relevant shares in some informal manner (which is not authorised by the relevant proxies or, indeed, by the articles of association or the Corporations Law) in determining whether the resolution was passed.
110 What meaning is to be ascribed to the allegation in particular 2.9 that Mr Corp 'allowed the proxy votes to be counted'?
111 At a general meeting of WSM or HLM, a member (present in person or by proxy, attorney or representative) was entitled to one vote when a resolution was put to the vote of the general meeting on a show of hands. That right to vote arose by virtue of the member's status as a member, irrespective of the number of shares the member held in the issued capital. See cls 12.8(b) and 12.9 of the articles of WSM and HLM.
112 At a general meeting of WSM or HLM, a member (present in person or by proxy, attorney or representative) was entitled, relevantly, to one vote in respect of each fully paid share held by the member where a resolution was put to the vote of the general meeting on a poll. See cls 12.8(c) and 12.11 of the articles.
113 In my opinion, the allegation that Mr Corp 'allowed the proxy votes to be counted' refers to Mr Corp, in his capacity as a director of WSM, permitting the votes attributable to the proxies the subject of count 2A to be counted on a poll that was demanded at the relevant general meeting and conducted in relation to the resolution identified in count 2A.
114 Neither the articles of association of WSM and HLM nor the Corporations Law prescribed a procedure for conducting a poll. If a poll was demanded in accordance with cl 12.11, then cl 12.12 provided, relevantly, that the poll must be taken in such manner as the chairman directed. No doubt, the procedure may be formal or informal, but it must enable persons with a right to vote to cast their voting entitlement in favour of or against the resolution in question, and for the votes cast to be tallied and the result of the poll ascertained.
115 In my opinion, Mr Smith's conviction of the offences the subject of counts 2B, 3B, 4B, 5B and 8B, and Mr Corp's conviction of the offences the subject of counts 2A, 3A, 4A, 5A and 8A, depended, relevantly, on the respondent proving beyond reasonable doubt that the proxies in question were actually voted on polls demanded at the relevant general meetings in relation to the resolutions the subject of those counts. It was not sufficient for the proxies merely to be 'taken into account' in determining whether the resolutions in question were passed, unless they were taken into account as a result of having been voted on polls demanded at the relevant general meetings.
116 I have previously referred to Ms Sly, who was employed as a receptionist/secretary with BMS between 1991 and August/September 1994. Her evidence was, relevantly, as follows:
(a) She sometimes typed the agendas for the general meetings of WSM and HLM (ts 2350).
(b) She compiled details of the proxies for the general meetings of WSM and HLM. She tallied the proxies and checked them against the register of shareholders (ts 2330).
(c) She prepared a spreadsheet in relation to the proxies for the purposes of each general meeting. The spreadsheet indicated the proxies that could be taken into account if a poll was demanded at the meeting (ts 2346). The spreadsheet did not differentiate between each proxy given to each proxy holder. Rather, it collated and expressed, in relation to each person appointed as a proxy, the total number of votes in favour of each resolution, the total number of votes against each resolution and the total number of votes which were open or undirected (ts 2332 - 2333).
(d) She could not remember attending any of the general meetings of WSM or HLM (ts 2345, 2350).
(e) She did say, however, that the general meetings of WSM and HLM were short (sometimes no longer than 15 minutes) and that sometimes it was difficult to obtain a quorum (the quorum was three and at most of the meetings there were no more than about five or six people present) (ts 2350 - 2351).
(f) After the general meetings of WSM and HLM, she would type the minutes (ts 2350).
(g) For the purpose of preparing the minutes, she was given the agenda for the general meeting which she had previously typed, with some handwritten notations on it (ts 2351).
(h) The details in the spreadsheets as to the total number of proxies in favour of or against the resolutions were, in some cases, identical with the 'Voting Details' in the agenda for the meeting and the minutes of the meeting (ts 2352 - 2354).
(i) She was never asked to record in the minutes that a poll was taken at a general meeting of WSM or HLM (ts 2358).
(j) She did not suggest that, having typed the minutes, anything in the minutes represented or recorded the result of a poll (ts 2354).
(k) After she typed the minutes, they were sent to 'the bosses' (that is, Mr Smith or Mr Corp) to review for the purpose of ensuring that they were correct (ts 2360).
(l) She said, in relation to some minutes which included 'Voting Details', that those details represented:
The proxies, the voting from the proxies received (ts 2361).
117 Counts 2A, 2B, 3A and 3B relate to the general meeting of WSM held on 21 August 1991. That meeting was attended by Mr Smith, Mr Corp, Kevin Judge (another director of WSM) and four other people (one of whom was an observer). The agenda in relation to the meeting was not tendered in evidence. The minutes, which were signed by Mr Smith as chairman, state in relation to the resolutions in question:
(4) The Directors be empowered to grant at their discretion up to 1,000,000 31 December 1994 options to subscribe to fully paid ordinary shares of $0.20 each to BMS Consultants Pty Ltd, a company providing management services to the Company. The exercise price to be 80% of the market value of the Company's fully paid shares at the date of issue.
Note: Those persons associated in accordance with Division 2 of the Corporations Law with BMS Consultants Pty Ltd abstained from voting on this resolution.
Proposer: K E Judge
Seconder: P Woods
Voting Details
For: 6,308,297
Against: 4,000
(5) The Directors be empowered to allot at their discretion up to 2,000,000 31 December 19[9]4 options to subscribe to fully paid ordinary shares of $0.20 each to the Company's consultants, employees, officers and prospectors, with not more than 1,000,000 in whatever proportions they see fit, being divisable [sic] amongst the Directors, i.e. B M Smith, K E Judge, S A Corp. The exercise price to be 80% of the market value of the Company's fully paid shares at the date of issue.
Note: The Directors and entities in which the Directors have an associated interest in accordance with Division 2 of the Corporations Law abstained from voting on this resolution.
Proposer: R Kirou
Seconder: P Woods
Voting Details
For: 6,310,297
Against: 2,000
118 The 'Voting Details' recorded in the minutes in relation to resolutions 4 and 5 are different from the totals of the proxy votes in favour of and against those resolutions as set out in Ms Sly's spreadsheet. In the spreadsheet, Ms Sly recorded a total of 7,815,472 proxy votes in favour of resolution 4 and 7,817,472 proxy votes in favour of resolution 5 (which were misdescribed in the spreadsheet as resolutions 5 and 6), 4,000 proxy votes against resolution 4 and 2,000 proxy votes against resolution 5. At trial, counsel for Mr Smith, in his closing address, explained the discrepancy between the 'Voting Details' in the minutes and the totals in the spreadsheet as follows (ts 3240 - 3243). The proxy votes recorded in the spreadsheet in relation to resolutions 4 and 5 include votes in two proxy forms signed and lodged by members who were entitled to vote on other resolutions being considered at the general meeting on 21 August 1991, but were not entitled to vote on resolutions 4 and 5 because those members were related parties of Mr Smith or Mr Corp. The proxy forms in question were signed and lodged by Ecrofete Pty Ltd in respect of 1,309,175 shares and BMS in respect of 500,000 shares. The spreadsheet wrongly recorded the proxy signed and lodged by Ecrofete Pty Ltd as being in respect of 1,007,175 shares instead of 1,309,175 shares. The spreadsheet did not record the 'missing' 302,000 shares (being the difference between 1,309,175 and 1,007,175). The proxy votes, as recorded in the spreadsheet, in respect of the proxies signed and lodged by Ecrofete Pty Ltd and BMS total 1,507,175. When this amount is deducted from the total of 7,815,472 recorded in the spreadsheet as being in favour of resolution 4, the result is 6,308,297 (being the amount recorded in the 'Voting Details' of the minutes as being in favour of resolution 4). Similarly, when the amount of 1,507,175 is deducted from the total of 7,817,472 recorded in the spreadsheet as being in favour of resolution 5, the result is 6,310,297 (being the amount recorded in the 'Voting Details' of the minutes as being in favour of resolution 5). Counsel for Mr Smith submitted at the trial that the discrepancy between the minutes and the spreadsheet therefore did not indicate that a poll was demanded and conducted at the meeting on 21 August 1991 in relation to each of resolutions 4 and 5.
119 Counts 4A, 4B, 5A and 5B relate to the general meeting of HLM held on 28 August 1991. The meeting was attended by Mr Smith, Mr Corp, Mr Judge and at least two other people. The agenda in relation to the meeting was not tendered in evidence. The minutes, which are unsigned, state in relation to the resolutions in question:
Note: Those persons associated in accordance with Division 2 of the Corporations Law with BMS Consultants Pty Ltd will abstain from voting on this resolution.
PROPOSER: K E JUDGE
SECONDER: J P BOLAND
VOTING DETAILS: FOR AGAINST
Resolution No. 6 817,688 11,233
Note: The Directors and entities in which the Directors have an associated interest in accordance with Division 2 of the Corporations Law will abstain from voting on this resolution.
PROPOSER: I GREEN
SECONDER: J P BOLAND
VOTING DETAILS: FOR AGAINST
Resolution No. 7 817,688 11,233
120 The 'Voting Details' recorded in the minutes in relation to resolutions 6 and 7 are identical to the totals of the proxy votes in favour of and against those resolutions as set out in Ms Sly's spreadsheet.
121 Counts 8A and 8B relate to the general meeting of WSM held on 19 August 1992. The agenda for the meeting read, relevantly:
Note: Those persons associated in accordance with Division 2 of the Corporations Law with BMS Consultants Pty Ltd will abstain from voting on this resolution.
PROPOSER: KEJ
SECONDER: CS
VOTING DETAILS: FOR AGAINST
Resolution No. 5 9,590,371 2,000
The meeting on 19 August 1992 was attended by Mr Smith, Mr Corp, Mr Judge and one other person. The minutes, which were signed by Mr Smith as chairman, state in relation to the resolution in question:
(5) The Directors be empowered to grant at their discretion up to 500,000 contributing shares to BMS Consultants Pty Ltd, a company providing management services at a 15 cent discount to fully paid shares, paid to 0.5 cent with the balance of 4.5 cents uncalled capital to be called at the Directors discretion.
Note: Those persons associated in accordance with Division 2 of the Corporations Law with BMS Consultants Pty Ltd abstained from voting on this resolution.
Proposer: K E Judge
Seconder: C E Shenton
Voting Details
For: 6,132,696
Against: 2,000
122 The 'Voting Details' recorded in the minutes in relation to resolution 5 are identical to the totals of the proxy votes in favour of and against that resolution as set out in Ms Sly's spreadsheet. The 'Voting Details' in the minutes and the totals in the spreadsheet are, however, different from the 'Voting Details' in the agenda. At trial, counsel for Mr Smith, in his closing address, explained the discrepancy as follows (ts 3245 - 3247). The difference between the amount of 9,590,371 in favour of resolution 5 (as set out in the agenda) and the amount of 6,132,696 in favour of that resolution (as set out in the minutes and the spreadsheet) is 3,457,675. The 'Voting Details' recorded in the agenda in relation to resolution 5 include votes in four proxy forms signed and lodged by members who were entitled to vote on other resolutions being considered at the general meeting on 19 August 1992, but were not entitled to vote on resolution 5 because those members were related parties of Mr Smith or Mr Corp. The four proxies in question were Ecrofete Pty Ltd in respect of 1,229,175 shares, HML in respect of 938,500 shares, BMS in respect of 890,000 shares and Cardinal Resources NL in respect of 400,000 shares. The total of the proxy votes in those four proxies is 3,457,675. Counsel for Mr Smith submitted at the trial that the discrepancy between the 'Voting Details' in the minutes and the totals in the spreadsheet on the one hand, and the 'Voting Details' in the agenda on the other, therefore did not indicate that a poll was demanded and conducted at the general meeting on 19 August 1992 in relation to resolution 5.
123 In my opinion, the conviction of Mr Smith on counts 2B, 3B, 4B, 5B and 8B and Mr Corp on counts 2A, 3A, 4A, 5A and 8A, to the extent that it was necessary for the respondent to prove beyond reasonable doubt that the proxies in question were in fact voted on polls demanded at the relevant general meetings in relation to the relevant resolutions, does not turn wholly or substantially upon questions involving the credibility of witnesses or on competing inferences where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt which this court may experience. The minutes of the meetings relating to the counts presently under consideration do not state whether the resolutions were passed on a show of hands or on a poll. Counsel for the respondent accepted, properly in my opinion, that in order for the prosecution to make out its case in relation to counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B it was necessary to infer that the proxy votes had been 'taken into account'. According to counsel, the 'voting figures', as recorded in the minutes, are consistent only with the inference that the proxies had been taken into account, formally or informally, in determining whether the relevant resolutions were passed.
124 As I have mentioned, in my opinion, in order for the respondent to make out its case in relation to counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B it was necessary for the jury to be satisfied beyond reasonable doubt that the proxies in question were voted on polls demanded at the relevant general meetings in relation to the resolutions the subject of those counts. It was not sufficient, as the learned trial judge appears to have directed the jury, for the jury merely to be satisfied beyond reasonable doubt that the proxies in question were 'taken into account in determining whether the resolution was passed' (ts 3444 - 3445). His Honour appears to have suggested that it was not necessary for the prosecution to establish that the proxies in question were voted on polls demanded at the relevant general meetings. Similarly, it was not sufficient, as counsel for the respondent submitted, for the jury merely to be satisfied beyond reasonable doubt that the proxies had been taken into account 'informally' in determining whether the resolutions were passed.
125 In my opinion, on a consideration of the whole of the evidence (including the evidence relied on by the respondent: see [95] above) in the context of each of the charges the subject of counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B and, most importantly, the particulars in respect of those charges, an inference that Mr Smith or Mr Corp voted the proxies on a poll demanded at one or more of the relevant general meetings on a poll or polls conducted in relation to one or more of the relevant resolutions was not the only inference that could reasonably be drawn from the evidence.
126 In my opinion, it was reasonably open, on the whole of the evidence in the context of the relevant charges and particulars, to infer that the relevant resolutions were passed on a show of hands. The evidence of the respondent's witness, Ms Sly, and the documents analysed by counsel for Mr Smith in his closing address, appear to explain the discrepancies between the minutes and the spreadsheet relating to the general meeting on 21 August 1991, and the discrepancy between the minutes and the spreadsheet on the one hand and the agenda on the other relating to the meeting held on 19 August 1992. See [116] - [118], [121] - [122] above. As to the reasoning and evidence relied on by the respondent (see [95] above):
(a) It is true that the proposed resolutions conferred significant potential financial benefits on Mr Smith and Mr Corp, that Mrs Wickerson and Mrs Dodd said in evidence they only gave instructions to the brokers who held shares in WSM or HLM on behalf of Davenrite, Happle and Courtenay to sign and lodge proxy forms in accordance with Mr Corp's instructions, and Mr Ellis said in evidence he only gave instructions to the brokers who held shares in WSM or HLM on behalf of Centurion as trustee of the Gold Coast Trust to sign and lodge proxy forms in accordance with Mr Smith's instructions. On the prosecution's case, those facts and that evidence establish a motive but they do not prove (either by themselves or in combination with other facts or evidence) that the proxies were voted on polls demanded at the relevant general meetings in relation to the relevant resolutions. Even if, as the respondent asserted, at all material times Mr Smith and Mr Corp had relevant interests in the undisclosed shares and knew they had those interests, they may have obtained the proxies for use at the general meetings if their use was necessary to ensure the passing of the relevant resolutions; that is, the proxies were a form of 'insurance' to be 'kept up their sleeves' for use if required.
(b) Ms Sly's evidence in relation to the preparation of the agendas, the spreadsheets and the minutes does not form an adequate foundation (either alone or in combination with other evidence) for inferring, as the only reasonable inference, that the proxies were voted on polls or even that they were 'taken into account' in an informal way in determining whether the resolutions were passed. Her evidence that the figures in the minutes referred to 'the proxies, the voting from the proxies received' is, in the context of the whole of her evidence, equivocal.
(c) The fact that the preparation of the spreadsheets and the tabling of the proxies at the general meetings meant that voting the proxies on polls, or even 'taking them into account' in an informal manner in determining whether the resolutions were passed, required 'no effort at all', does not form an adequate foundation (either alone or in combination with other facts or evidence) for inferring, as the only reasonable inference, that the proxies were voted on polls or even that they were 'taken into account' in an informal way in determining whether the resolutions were passed.
127 It follows that the convictions on counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B should be quashed. The nature of the successful challenge to the convictions on these counts precludes a retrial. Verdicts of acquittal should be entered. Generally, see Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [79] - [83] (Kirby J).
128 I turn now to the merits of Mr Smith's ground 9 and Mr Corp's ground 5 in relation to counts 24, 25, 26 and 27.
129 Counts 24, 25, 26 and 27 relate to the general meeting of HLM held on 23 October 1996. Mr Smith, Mr Corp, Mr Judge and eleven other people attended the meeting. The agenda in relation to the meeting was not tendered in evidence. Ms Sly's evidence is not relevant to these counts. She ceased her employment with BMS in August/September 1994. The minutes, which were signed by Mr Smith as chairman, state in relation to the resolutions in question:
Resolution 4: Grant of options to Brian Millwood Smith, Chairman
'That, subject to the passing and coming into effect of Special Resolution 3 specified in this Notice of Annual General Meeting and in accordance with Part 3.2A of the Corporations Law and Listing Rule 10.11 of Australian Stock Exchange Limited, the Company be authorised to grant 1 million unlisted options to Brian Millwood Smith or his nominee for no consideration, each option entitling the holder to subscribe for one fully paid ordinary share of 5 cents par value in the company at a price of 20 cents on or before 31 January 2000 and otherwise on the terms and conditions set out in the Explanatory Memorandum that forms part of this Notice of Annual General Meeting.'
Proposed S A Corp
Seconded D Porter
The chairman called for a poll:
For 11,790,253
Against 221,904
The resolution was declared passed
Resolution 5: Grant of options to Stuart Adrian Corp, Executive Director
'That, subject to the passing and coming into effect of Special Resolution 3 specified in this Notice of Annual General Meeting and in accordance with Part 3.2A of the Corporations Law and Listing Rule 10.11 of Australian Stock Exchange Limited, the Company be authorised to grant 1 million unlisted options to Stuart Adrian Corp or his nominee for no consideration, each option entitling the holder to subscribe for one fully paid ordinary share of 5 cents par value in the company at a price of 20 cents on or before 31 January 2000 and otherwise on the terms and conditions set out in the Explanatory Memorandum that forms part of this Notice of Annual General Meeting.'
Proposed B M Smith
Seconded K E Judge
The Chairman called for a poll:
For 11,770,253
Against 221,904
The resolution was declared passed
...
Voting Exclusion Statement
The Company disregarded any votes cast on any of resolutions [4 or 5] by:
Brian Millwood Smith, Stuart Adrian Corp or Kevin Ernest Judge; and an [sic] associate of that person (or those persons)
However the Company did not disregard a vote if:
it was cast by a person as proxy for a person who is entitled to vote in accordance with the directions on the proxy form; or
it was cast by the person chairing the meeting as proxy for a person who is entitled to vote in accordance with a direction on the proxy form to vote as the proxy decides.
130 The evidence in relation to counts 24, 25, 26 and 27 is materially different from the evidence in relation to counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B. The minutes of the meeting on 23 October 1996, concerning counts 24, 25, 26 and 27, expressly record in relation to the relevant resolutions that Mr Smith, as the chairman of the meeting, called for a poll. The minutes record, relevantly, in relation to each relevant resolution:
The chairman called for a poll:
For 11,790,253
Against 221,904
The Resolution was declared passed
Mr Smith, as chairman of the meeting, signed the minutes.
131 The features of the minutes of the meeting on 23 October 1996 which I have mentioned were powerful evidence against Mr Smith and Mr Corp.
132 In my opinion, the convictions on counts 24, 25, 26 and 27 were not unsafe or unsatisfactory as a result of the issues raised on behalf of Mr Smith and Mr Corp. My examination of the record does not require the conclusion that the jury must have entertained a doubt about Mr Smith's or Mr Corp's guilt on those counts. The verdict of the jury was not unreasonable, and it is a verdict which is supported by the evidence.
133 Mr Smith's ground 9 and Mr Corp's ground 5 succeed in relation to counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B, but fail in relation to counts 24, 25, 26 and 27.
Appeals against conviction: Mr Smith's grounds 7 and 8 and Mr Corp's ground 10
The trial miscarried as a result of the failure of the learned trial judge to adequately direct the jury that they were not bound by any comment or opinion he expressed in relation to the facts, nor relieved thereby of the responsibility of forming their own view.
The trial miscarried as a result of a number of comments or opinions on the facts that were expressed by the learned trial judge in the course of his summing up all of which were adverse to the fair trial of the applicant.
PARTICULARS
In particular his Honour told the jury:-
(a) 'You might think it would be simple for a person who wished to give an appearance of being separated from shares to place them in a discretionary trust...'
(b) It is unlikely all companies strictly follow their own rules and regulations on all occasions.........what happened at meetings of Welcome Stranger and Hallmark needs to be assessed I think bearing these factors in mind'.
(c) 'If you find the accused had a relevant interest, you might have little difficulty in drawing the inference in all the circumstances that the accused knew the document was misleading'.
The issues in Mr Smith's grounds 7 and 8 are also raised in Mr Corp's ground 10, which provides:
The learned trial judge erred by failing to advise the jury, sufficiently or at all, that should they conclude from what is said during the summing up that he has formed a certain view about the case (or matters alleged during the case), they must however remember that it is their views about the facts which count and if their views turned out to be different from those of the trial judge it is not only their right but also their duty to give effect to their views. That omission of itself, and also in the context of numerous comments made by the learned trial judge upon the facts adverse to the appellant, gave rise to a substantial miscarriage of justice.
135 On 28 September 2007, shortly after the commencement of his charge, the learned trial judge told the jury:
I'm the judge of the law ...
I will be telling you what the law is. It's important you be reminded what your function is. You are the judges of the facts. You have heard all of the evidence and done your best to listen to it and follow it, and it is up to you what you make of what you have heard and seen in this trial.
Each of the lawyers has, as is their responsibility, urged you to take a particular view of things, to look at the facts from their point of view and you can either accept that or not but what you need to realise is that you don't have to agree with what has been put to you. It is a matter for you because you are the sole judges of the facts (ts 3259).
136 On 2 October 2007 (being the next sitting day after 28 September 2007) the learned trial judge told the jury:
I think on Friday, firstly, I dealt with this question of - I told you about our various functions. Just a very brief reminder, you are the judges of the facts, I'm the judge of the law.
It is entirely up to you what you make of what you have heard in this trial. You can accept or reject the urgings of each of the counsel. Obviously one is a prosecutor and has tried to persuade you to his point of view. The other two are defence counsel and they have tried to persuade you to their point of view. You have had the benefit of that (ts 3276).
137 It is plain, therefore, that the learned trial judge directed the jury that he was the judge of the law and they were the judges of the facts. Also see his Honour's observations to the jury at the commencement of the case (ts 1446 - 1447).
138 On some occasions during his charge, when making comments about the facts, his Honour told the jury that 'it's a matter for you'. See, for example, ts 3361, 3363, 3364 and 3384.
139 Although the learned trial judge instructed the jury in relation to the comments of counsel, his Honour did not give the jury a similar (or any) direction in relation to his own comments.
140 Counsel for the respondent submitted to this court that the learned trial judge was obliged, relevantly, to make clear to the jury two matters. First, it was his function to give them directions on the law and they were to apply those directions in reaching their verdicts. Secondly, they were the sole judges of the facts and it was for them to decide what evidence to accept and what evidence to reject. It was submitted that his Honour complied with his obligation in relation to those matters. Further, on several occasions during his charge, his Honour told the jury that whether or not they made a particular finding or drew a particular inference depended on their view of the evidence (see, for example, ts 3259, 3276, 3361). According to counsel for the respondent, on a fair reading of his Honour's charge as a whole, the jury could not have been left in any doubt that it was for them alone to form views as to the evidence and to make findings of fact. His Honour did not err as alleged in Mr Smith's grounds 7 and 8 and Mr Corp's ground 10. Alternatively, if his Honour did err as alleged, the error did not occasion a substantial miscarriage of justice.
141 The first comment by the learned trial judge was:
As was pointed out, I think, at the beginning of the trial, you might think it would be simple for a person who wished to give an appearance of being separated from shares to place them in a discretionary trust and say that he is only the beneficiary of the trust and that the person who can make the decisions about the shares is the trustee, not me, and I do not have any interest in the shares (ts 3292).
His Honour's reference to this point having been made at the beginning of the trial was to a submission made by counsel for the respondent in opening (ts 1480).
142 Counsel for the respondent submitted to this court that the first comment was made in the context of the learned trial judge explaining to the jury the purpose of s 32 of the Corporations Law. Shortly before making the comment complained about, his Honour told the jury that the respondent's case against Mr Smith was that:
[I]n practice Mr Smith had the power to buy and sell the shares and had the power to vote in respect of those shares although he did not own them and they were not held in his name. I emphasise it is alleged. That is what the prosecution allege of course. It is a matter of dispute obviously (ts 3291).
Also, immediately after making the comment complained about, his Honour told the jury that:
Of course you know it is hotly disputed by Mr Smith but it is alleged that the trustee of the Gold Coast Trust that Mr Smith used invariably acted in accordance with Mr Smith's wishes and that, therefore, according to the prosecution, Mr Smith had the relevant power in respect of the Welcome Stranger Mining and Hallmark shares held by the trust and this gave rise to obligations he is alleged not to have met (ts 3292).
Later in his charge, his Honour dealt in more detail with the specific provisions of s 32 of the Corporations Law and other associated provisions of the Law (ts 3299 - 3304).
143 According to counsel for the respondent, it cannot reasonably be contended that the learned trial judge's first comment was adverse to Mr Smith.
144 The second comment made by the learned trial judge was:
You would appreciate that as a generalization, given the human factors, it is unlikely all companies strictly follow their own rules and regulations on all occasions. It might depend upon what is at stake, how many people there are at the meeting, how efficient their systems were, etcetera. Slackness and slipshod practices, you might think, can creep into any organisation. What happened at the meetings focused upon by this trial, that is, the meetings of Welcome Stranger and Hallmark Gold, needs to be assessed bearing those factors in mind. The prosecution asserts that the proxy votes were cast at the relevant meetings whatever strict procedural rules were followed or not (ts 3293 - 3294).
145 Counsel for the respondent submitted to this court that in making the second comment the learned trial judge did no more than draw the jury's attention to the types of factors they should bear in mind in determining what actually happened in relation to voting at the general meetings. It was a comment on a factual issue which his Honour was entitled to make. Immediately after the remark, his Honour told the jury what the prosecution and the defence had said in relation to the issue (ts 3294). Further, it is not the case that there was nothing in the evidence that suggested neither WSM nor HLM had failed to comply with its articles of association. According to counsel for the respondent, his Honour's second comment was appropriate and was not adverse to the fair trial of Mr Smith or Mr Corp.
146 The third comment made by the learned trial judge was:
If you do find an accused person had a relevant interest in the particular charge you are considering, as I have explained, and given it was obviously omitted from the document, you would then go on to consider whether he knew the document was misleading. If you find that the accused had a relevant interest, you might have little difficultly - it's a matter for you - in drawing the inference in all the circumstances that the accused knew the document was misleading because of the omission of mention of that relevant interest (ts 3361).
147 Counsel for the respondent submitted to this court that in making the third comment the learned trial judge was explaining to the jury that it was a matter for them to decide whether they were willing to draw the inference that Mr Smith and Mr Corp each knew that he had a relevant interest in the shares in question. His Honour's comment was a permissible comment on the evidence which was not adverse to the fair trial of Mr Smith or Mr Corp. In any event, shortly after making the third comment, his Honour, in response to a request made by Mr Smith's counsel in the absence of the jury, returned to the issue and told the jury that while he may have given the impression that the drawing of the inference of knowledge was 'not really a worry', whether or not Mr Smith or Mr Corp knew he had a relevant interest was 'also very much in dispute' (ts 3377 - 3378). His Honour told the jury that he should 'emphasise that to you, so if you can apply that retrospectively to the comments that I have made to you about the matter' (ts 3378). According to counsel for the respondent, if, contrary to their submission, his Honour's earlier comments concerning the drawing of an inference as to knowledge unfairly prejudiced the defence of Mr Smith or Mr Corp, his Honour's subsequent statements to the jury on that issue removed any such prejudice.
Appeals against conviction: Mr Smith's grounds 7 and 8 and Mr Corp's ground 10: the merits of the grounds
148 In Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, Barwick CJ explained the essence of the Australian criminal trial process:
It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not (517).
149 In Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, Dawson J noted that there are aspects of the trial procedure by which criminal justice is administered which operate to circumscribe the extent to which a trial judge may intervene in the interests of preventing injustice (675). In R v R (1989) 18 NSWLR 74, Gleeson CJ (Maxwell and Wood JJ agreeing) referred to those observations of Dawson J and added, to the aspects mentioned by his Honour, the role of the jury as the tribunal of fact (85).
150 A judge sitting with a jury in a criminal trial is entitled to express his or her view as to the facts, subject to qualifications. In R v Zorad (1990) 19 NSWLR 91, Hunt, Enderby and Sharpe JJ said:
A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury's function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts: Hoger v Ellas (1962) 80 WN (NSW) 869 at 875 - 876; [1963] NSWR 1033 at 1042 - 1043; cf R v Stranger (Court of Criminal Appeal, 28 June 1989, unreported at 10 - 12) (106 - 107).
151 In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 and Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, the High Court referred to the respective functions of judge and jury in a criminal trial and the restrictions upon a judge's right to make comments to the jury on factual issues.
152 Gaudron A-CJ, Gummow, Kirby and Hayne JJ emphasized in RPS that judicial instructions in criminal trials must not be permitted to obscure the division of functions between judge and jury [42]. Their Honours added:
It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues (See, eg, Tsigos v The Queen (1965) 39 ALJR 76 (n)). But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel [42].
153 In Azzopardi, Gaudron, Gummow, Kirby and Hayne JJ referred to the distinction between a direction and a comment by a trial judge [49] - [52]. This distinction reflects the fundamental division of functions in a criminal trial between the judge and the jury. See Mahmood v Western Australia [2008] HCA 1; (2008) 82 ALJR 372 [16] (Gleeson CJ, Gummow, Kirby and Kiefel JJ). In Azzopardi, Gaudron, Gummow, Kirby and Hayne JJ reiterated that the judge's task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning [50]. Their Honours accepted that the judge may comment on the evidence that has been given and comment about the facts that the jury might find to be established [50], but, a little later in their reasons, they sounded this cautionary note:
as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties. Unnecessary or extensive comments on the facts carry well-recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury [52].
154 Section 112 of the Criminal Procedure Act provides, relevantly, that in a criminal trial before a judge and jury, the judge may make any observations about the evidence that the judge thinks necessary in the interests of justice.
155 It is well-established in the authorities that if a trial judge makes any comments to the jury on factual issues, then he or she must inform the jury to the effect that the comments are for their consideration as a suggestion only, the jury are not bound by the comments and may accept or reject them as they think fit, and it is their right and duty to discard the comments if they have a different opinion of the relevant factual issues. In Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573, Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ, after referring to s 638 of the Criminal Code (WA), which was the precursor to s 112 of the Criminal Procedure Act, held:
That provision distinguished between instructions as to the law applicable to the case, which were mandatory, and observations upon the evidence, which were discretionary. The discretion, of course, was to be exercised in accordance with established principles. One of those principles is that observations upon the evidence must be fair and balanced, but a judge is not prohibited from making an observation which is favourable to one side or the other if it is made clear that it is for the jury, and the jury alone, to decide the facts. Trial judges commonly make observations, sometimes forcefully, about the strength or weakness of particular aspects of the evidence in a case, but they should also make it clear that those observations are not intended to bind the jury, that the jury may or may not agree with them, and that the jurors are the sole judges of all factual issues bearing upon the ultimate verdict [6]. (emphasis added)
Also see Zorad (106 - 107); R v Heron [2000] NSWCCA 312 [74]; Azzopardi [87] (McHugh J, who dissented in the result, but whose reasoning on this point is consistent with the majority); R v Macbeth [2008] SASC 71 [79] - [80] (Doyle CJ, Bleby and Gray JJ agreeing). Recently, in Mahmood, Gleeson CJ, Gummow, Kirby and Kiefel JJ, in discussing a comment which a trial judge had made to a jury, said:
Because it is comment it may be ignored by the jury, a matter about which the jury should be told [16].
156 There are numerous authorities in which appellate courts have allowed an appeal by an accused, quashed his or her conviction, and ordered a retrial where the trial judge has commented on factual issues, but has failed to instruct the jury in the terms or to the effect I have mentioned; that is, the jury are not bound by the comments, etc. The authorities include, for example, R v Mason (1925) 18 Cr App R 131, 132; R v Kolomrjyc [1926] 2 WWR 126; Broadhurst v The Queen [1964] AC 441, 464; R v Mawson [1967] VicRp 23; [1967] VR 205, 209; R v Honey [1973] 1 NZLR 725, 729; R v Boykovski & Atanasovski (1991) 58 A Crim R 436, 443; R v Jackson [1992] Crim L R 214, 214 - 215. In Boykovski, Crockett and Teague JJ said, in relation to a trial judge's observations on the facts in his charge to the jury:
His Honour was, of course, free to make such comments as he thought it was proper for him to make. Moreover, it was within the rightful exercise of his judicial authority to offer to the jury comments that might be very strongly critical of the applicants or their defence. However, he may only exercise such authority provided that he makes it perfectly clear to the jury that they are the judges of the facts and, accordingly, that they are free to accept or reject his comments as they saw fit: see the remarks of the Court in Kerr (No 2) [1951] VicLawRp 31; [1951] VLR 239 at 247. Unfortunately his Honour gave no such instruction to the jury.
This of itself would, we think, probably be sufficient to require that a new trial be ordered despite the fact that no specific request for a further direction was sought by counsel at the conclusion of the charge. The failure to warn the jury of its right - indeed, its obligation - to disregard the judge's comments if they did not appeal to the jury was in all the circumstances such a fundamental error as to lead us to conclude that a substantial miscarriage of justice has occurred (443).
157 In the present case, although the learned trial judge made it clear to the jury that they were the judges of the facts and he was the judge of the law, his Honour did not tell the jury in effect that any comments which he made on factual issues were not binding on them, that they may or may not agree with them, and that it was their right and duty to disregard his comments if they had a different opinion on the relevant factual issues.
158 The critical question, for the purposes of Mr Smith's grounds 7 and 8 and Mr Corp's ground 10, is whether, on a fair reading of the learned trial judge's charge as a whole and in context, any of the comments complained about by Mr Smith and Mr Corp created any material prejudice to them or either of them and, if so, whether the jury must have appreciated that they were not bound by the comments, etc.
(a) The respondent's case against Mr Smith was that the directors of Centurion as trustee of the Gold Coast Trust were accustomed to act in accordance with his wishes and, as a result, by virtue of s 32 of the Corporations Law, he had a 'relevant interest' in the shares in WSM and HLM held by Centurion or its nominees.
(b) Counsel for the respondent contended, in opening, that Mr Smith set up the Gold Coast Trust. The evidence did not make good that contention. Counsel for the respondent said, in closing, that, although it was a possibility, the real issue was the manner in which the Gold Coast Trust was used, this being material to whether Mr Smith had a relevant interest within s 32 or not.
(c) There was no evidence that the shares in WSM and HLM held by Centurion or its nominees had ever been the property of Mr Smith.
(d) Mr Smith's case was that he did not have a relevant interest in the shares in question and merely gave advice to Centurion in connection with investing the trust fund of the Gold Coast Trust including investing in shares in the issued capital of WSM and HLM.
160 In my opinion, the first comment was a comment which the jury was entitled to ignore, and the learned trial judge should have told them of their entitlement. The comment was adverse to Mr Smith in that it appeared to support the thrust of the respondent's case that Mr Smith was not merely an adviser to Centurion. Also, the comment appeared to endorse the submission of counsel for the respondent in opening (ts 1480); see [141] above. His Honour's comment suggested that Mr Smith may have arranged for the shares in question to be transferred to Centurion as trustee of the Gold Coast Trust as a façade for the purpose of enabling Mr Smith, as the ultimate beneficiary or controller of the shares, to avoid revealing his interest in and power over them. In my opinion, the first comment, unaccompanied by the necessary qualification and explanation to the jury, materially prejudiced Mr Smith's defence in relation to all of the counts against him.
161 The first comment related in terms to Mr Smith, but not to Mr Corp. The respondent's case against Mr Smith related to his alleged relevant interest in shares in WSM and HLM held by Centurion as trustee of the Gold Coast Trust or its nominees, whereas its case against Mr Corp alleged that he had a relevant interest in shares in WSM and HLM held by companies of which he was the beneficial owner, namely, Davenrite, Happle and Courtenay. However, in my opinion, in the context of the first comment, this point of difference is one of form rather than substance. A fundamental aspect of the respondent's case against each of Mr Smith and Mr Corp was that each arranged for shares in WSM and HLM in which he had a relevant interest to be held by entities that would act in accordance with his wishes in relation to the shares and that would hide his interest in and control over them. I am therefore of the opinion that the first comment, unaccompanied by the necessary qualification and explanation to the jury, also materially prejudiced Mr Corp's defence in relation to all of the counts against him.
162 As to the learned trial judge's second comment:
(a) A crucial question at the trial was how the resolutions the subject of, relevantly, counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A, 8B, 32A and 32B were voted on at the relevant general meetings of WSM and HLM. There was no direct oral evidence on this point. Ultimately, the jury were required to determine the point primarily by reference to the documents which had been tendered.
(b) Clause 12.9 of the articles of association of WSM and HLM provided that a vote on a resolution put to a general meeting shall be by a show of hands unless a poll is demanded in accordance with cl 12.11.
(c) By s 180 of the Corporations Law, each of WSM and HLM was bound to act in accordance with its articles.
(d) There was no evidence that, in any material respect, either WSM or HLM had failed to act in accordance with its articles.
(e) Mr Smith's and Mr Corp's case at trial was, relevantly, that the jury could not be satisfied beyond reasonable doubt that the proxies in question had been voted on a poll demanded at the relevant general meetings in relation to the relevant resolutions. In other words, the jury could not reasonably exclude the possibility that the resolution were passed on a show of hands.
Counsel for Mr Smith at the trial objected to the second comment, but his Honour declined to redirect.
163 Once again, in my opinion, the second comment was a comment which the jury was entitled to ignore, and the learned trial judge should have told them of their entitlement. There was no evidence that general meetings of WSM or HLM were usually, or, indeed, on any occasion, conducted in a fashion which could properly be described as 'slack' or 'slipshod'. His Honour's comments suggested, consistently with his direction in relation to what the respondent had to prove in relation to the casting of the proxy votes and with the respondent's stance on that point (see [94] - [95] above), that the proxy votes in question may have been 'taken into account' at the relevant meetings, in an informal way and without a poll being conducted, in determining whether the relevant resolutions were passed. In my opinion, the second comment, unaccompanied by the necessary qualification and explanation to the jury, materially prejudiced Mr Smith's defence in relation to counts 2B, 3B, 4B, 5B, 8B and 32B, and Mr Corp's defence in relation to counts 2A, 3A, 4A, 5A, 8A and 32A.
(a) A critical element of the offences alleged against each of Mr Smith and Mr Corp was whether he knew, at material times, that he had a relevant interest. In other words, a critical element was whether each of Mr Smith and Mr Corp knew that the controllers of the entity or entities which held the shares in question were accustomed or under an obligation to act in accordance with his directions, instructions or wishes in relation to the exercise of the power to vote in respect of the shares.
(b) Mr Ellis and Mr Hardcastle gave evidence that although Mr Smith was an adviser to Centurion as trustee of the Gold Coast Trust, Centurion, in its capacity as trustee, acted independently and in accordance with its fiduciary duties, and did not merely act upon 'the instructions, directions or wishes' of Mr Smith.
(c) Mr Ellis's evidence and Mr Hardcastle's evidence in this respect was relevant to the jury's consideration of Mr Smith's knowledge or intention. They had to be satisfied beyond reasonable doubt that, notwithstanding the views of Mr Ellis and Mr Hardcastle, the controllers of Centurion were, in fact, accustomed or under an obligation to act in accordance with the directions, instructions or wishes of Mr Smith in relation to the exercise of the power to vote in respect of the shares, and Mr Smith knew of that fact.
(d) Counsel for Mr Smith at the trial objected to his Honour's third comment. His Honour did not withdraw the comment, but told the jury:
With respect to Mr Smith, I said - and I think also the same with Mr Corp, but this is really particularly with respect to Mr Smith's case - I said to you that if you found that he did have a relevant interest, then it's a matter for you but you might pretty easily conclude that he knew that he had a relevant interest; that is, you can draw an inference fairly easily and I might have given the impression that it's not really a worry.
With respect to Mr Smith's case, that is also very much in dispute. Firstly, it is disputed that he had a relevant interest; it's disputed that if he did, that he knew he did. And I should emphasise that to you, so if you can apply that retrospectively to the comments that I have made to you about that matter (ts 3378).
165 In my opinion, the third comment was also a comment which the jury was entitled to ignore, and the learned trial judge should have told them of their entitlement. Each of Mr Smith and Mr Corp defended the charges against him on the basis that he did not, at any material time, have a relevant interest in any of the shares in question. Each of them also defended the charges on the basis that if, contrary to his contention, he did have a relevant interest in any of the shares, he did not know that he had such an interest; that is, he did not know that the entity or entities which held the shares were accustomed or under an obligation to act in accordance with his directions, instructions or wishes in relation to the exercise of the power to vote in respect of the shares. His Honour's comment suggested that if the jury concluded that Mr Smith or Mr Corp did have a relevant interest, then they were likely to have little difficulty in drawing an inference (adverse to Mr Smith or Mr Corp, as the case may be) that he knew of the existence of the interest. Although the comment was made in the context of Mr Smith or Mr Corp knowing that a document which omitted disclosing details of Mr Smith's or Mr Corp's alleged relevant interest in the shares in question was misleading (that is, counts 1, 6, 7, 9, 10, 11, 22 (on which Mr Corp was acquitted), 23, 28, 29, 30, 31, 33 and 34), the comment may well have been understood by the jury as a process of reasoning that was applicable to all of the counts in the amended indictment. His Honour's statement to the jury, after counsel for Mr Smith at the trial objected to the third comment, did not cure the problem. The statement merely emphasised that whether Mr Smith or Mr Corp had a relevant interest and, if so, whether they knew of the existence of that interest, was seriously disputed. His Honour did not, unfortunately, instruct the jury that they were not bound by his comments, etc. The third comment materially prejudiced Mr Smith's and Mr Corp's defence in relation to all counts.
166 In my opinion, the first, second and third comments, unaccompanied by the necessary qualification and explanation to the jury, occasioned a miscarriage of justice. His Honour's error had a tendency to impact significantly on the jury's approach to and findings on factual issues that were important and in contest. The error may well have affected the outcome of the trial in relation to one or more of the counts on which Mr Smith and Mr Corp were convicted.
167 Mr Smith's grounds 7 and 8 and Mr Corp's ground 10 have been made out.
168 I turn now to consider whether the appeal should be dismissed under s 30(4) of the Criminal Appeals Act, notwithstanding that Mr Smith's grounds 7 and 8 and Mr Corp's ground 10 have been made out, on the basis that no substantial miscarriage of justice has occurred. Recently, in Gassy v The Queen [2008] HCA 18, Gummow and Hayne JJ referred to the 'proviso' in s 353(1) of the Criminal Law Consolidation Act 1935 (SA) and to the observations of Brennan, Dawson and Toohey JJ in Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. Gummow and Hayne JJ said:
Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test. That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not. And what was said in Wilde v The Queen ((1988) [1988] HCA 6; 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ; [1988] HCA 6) about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language.
Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used. The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred' (Criminal Law Consolidation Act 1935 (SA), s 353(1)). In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [33] - [34].
169 In the present case, s 30(4) of the Criminal Appeals Act should not be applied. After making my own independent assessment of the evidence, and making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, I am unable to conclude beyond reasonable doubt that each of Mr Smith and Mr Corp was guilty of the counts alleged against him. The respondent's case against Mr Smith depended, to a significant extent, on the credibility of Mr Hardcastle and Mr Ellis and the reliability of and weight to be attached to their evidence concerning whether they were accustomed or under an obligation to act in accordance with the directions, instructions or wishes of Mr Smith in any relevant respect. The respondent's case against Mr Corp depended on the credibility of Mrs Wickerson and the acceptance, in all material respects, of her evidence as truthful and reliable. I am unable, from the transcript, to make a satisfactory determination of the factual issues with which the evidence of Mr Hardcastle, Mr Ellis and Mrs Wickerson was concerned, including their credibility and reliability. I am therefore unable to conclude that no substantial miscarriage of justice has occurred within s 30(4).
Appeals against conviction: Mr Smith's ground 10 and Mr Corp's ground 9
The learned trial judge erred in directing the jury that in considering the evidence before them 'you should put out of their [sic] mind any concern you might have about witnesses you might have thought you would hear from and you haven't heard from'.
PARTICULARS
This issue is also raised in Mr Corp's ground 9, which provides:
The learned trial judge erred by directing the jury that they must put aside and not speculate on what a person or a potential witness might have said if that person had been called, where the Crown case depended upon the drawing of inferences adverse to the accused.
171 The learned trial judge gave directions to the jury in relation to potential witnesses who had not been called by the prosecution:
On another topic, something has been said in this trial from time to time about witnesses you haven't heard from, witnesses that haven't been called, people who have been mentioned who may have had something to say or knew something but had not been called as witnesses to give evidence.
It has been suggested perhaps, at varying degrees of enthusiasm or firmness, but that you should take some dim view about this and be concerned about the non calling of this witness or that witness. As to this, I must tell you that your job is to decide these cases on the evidence that you do have before you and you must put aside and not speculate what a person or a potential witness perhaps might have said if that person had been called.
I mean basically, who knows? Who knows what the witness would have said or not? Really you should just put out of your mind any concern about witnesses who ... you might have thought you should hear from and you haven't heard from (ts 3336 - 3337).
Counsel for Mr Smith at the trial objected to the directions (ts 3344), but his Honour declined to redirect (ts 3345).
172 It was submitted on behalf of Mr Smith and Mr Corp to this court that the learned trial judge's directions on the absence of evidence from persons whom the jury might have expected to have been called was of particular relevance in consequence of the respondent's failure to adduce any evidence from any persons who were present at general meetings of WSM or HLM concerning whether resolutions were passed on a show of hands or on a poll at which the proxies were voted (except for the general meeting on 23 January 1998). According to counsel for Mr Smith and Mr Corp, although 'a Jones v Dunkel direction was not needed in the circumstances', his Honour should have told the jury that, in a case in which the respondent was inviting the jury to draw inferences adverse to the accused, they could be less inclined to draw those inferences when they had not heard from persons whose evidence they may have considered relevant in the circumstances.
173 Counsel for Mr Smith and Mr Corp also submitted to this court that although the learned trial judge was correct in directing the jury that they should consider only the evidence that was before them, and not speculate about what a person who was not called as a witness might have said, his Honour was in error in telling the jury to put out of their minds any concern they may have had about witnesses 'you might have thought you should hear from' (ts 3337). The respondent's failure to adduce evidence from persons who attended the relevant general meetings of WSM or HLM was part of the evidentiary material before the jury. They were entitled to have regard to that failure as a fact in a circumstantial case in which they were being asked by the respondent to draw inferences adverse to Mr Smith and Mr Corp. It was argued that his Honour's directions were in error and caused a miscarriage of justice in relation to grounds 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A, 8B, 24, 25, 26 and 27.
Appeals against conviction: Mr Smith's ground 10 and Mr Corp's ground 9: the merits of the grounds
174 In RPS, Gaudron ACJ, Gummow, Kirby and Hayne JJ held that where a witness who might have been expected to be called and to give evidence on a matter is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the accused's guilt [27] - [29]. Also see Dyers [13] (Gaudron and Hayne JJ), [120] - [123] (Callinan J); Mahmood [27] (Gleeson CJ, Gummow, Kirby and Kiefel JJ, Hayne J agreeing).
175 In the present case, the learned trial judge instructed the jury that they were required to decide the issues only on the evidence adduced at the trial and that they should not speculate about what a person who was not called might have said if he or she had been called. See Dyers [4] - [15] (Gaudron and Hayne JJ); Winning v The Queen [2003] WASCA 245 [3] - [7], [110] - [113], [255] - [258]; Mahmood [26] - [28]. Also, his Honour instructed the jury that they could only draw an inference adverse to Mr Smith or Mr Corp if it was the only inference that could reasonably be drawn from the facts which they found to be proved on the evidence adduced at the trial. See Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578 (Dawson J, Gaudron and Toohey JJ agreeing). Also see his Honour's charge at ts 3259, 3261 - 3262, 3278 - 3280, 3280 - 3282, 3336 - 3337.
176 The learned trial judge, in giving directions on a second occasion in relation to the drawing of inferences, highlighted that the jury were being asked by the respondent to draw an inference that the proxies in question were voted by Mr Smith and Mr Corp at the relevant general meetings of WSM and HLM. His Honour said:
You are of course, as has been mentioned to you, entitled to draw inferences. I think I really should just briefly visit that again with you because it is very important I think, in this trial. The prosecution here in this case is asking you to draw inferences in this case. For example, the prosecution is asking you to draw an inference that Mr Corp had a relevant interest in shares held by Davenrite, Happle and Courtenay in Welcome Stranger and Hallmark.
The prosecution is asking you to draw an inference that Mr Smith had a relevant interest in shares held by Centurion Trust Company as trustee for the Gold Coast Trust, amongst others. So very important inferences are being - you are being asked to draw very important inferences about matters in this trial. So - another one is that you are being asked to draw an inference that the proxy votes were voted at the meetings. It is therefore I think critically important that you don't have any doubt about how you do that in a criminal trial (ts 3280).
Also, his Honour reminded the jury on two occasions that Mr Smith's and Mr Corp's case was that the evidence adduced by the respondent did not prove that the proxies in question were voted at the relevant general meetings; in particular, the respondent had not adduced evidence in that respect from any witness who attended those meetings (ts 3294, 3409).
177 In my opinion, the learned trial judge adequately explained to the jury the connection between:
(a) his instruction not to speculate about what a person who was not called as a witness might have said if he or she had been called;
(b) his instruction concerning the drawing of inferences adverse to Mr Smith and Mr Corp; and
(c) Mr Smith's and Mr Corp's case that the evidence adduced by the respondent failed to prove that the proxies in question were voted on the relevant resolutions at the general meetings; in particular, the failure of the respondent to adduce evidence from any witness who attended those meetings.
178 In my opinion, the learned trial judge did not make an error in directing the jury in the manner complained about in Mr Smith's ground 10 and Mr Corp's ground 9. In any event, the directions did not, in the context of his Honour's charge to the jury considered as a whole and in context, give rise to a miscarriage.
179 Mr Smith's ground 10 and Mr Corp's ground 9 fail.
Appeals against conviction: Mr Corp's ground 6
The learned trial judge erred in refusing an application made by the appellant on 6 September 2007 for Wickerson to be re-called for further cross-examination, thereby giving rise to a substantial miscarriage of justice.
181 Mrs Wickerson gave evidence, relevantly, as follows:
(a) In late 1997 or early 1998 Mr Corp contacted her and asked her to find new beneficial owners for Davenrite, Happle and Courtenay.
(b) As a result of Mr Corp's request, she spoke to Mr Pereira and asked him if he knew anyone who would like to take the companies.
(c) Mr Pereira told her that he did not know anyone who would like to take the companies, but he agreed to endeavour to find people who might like to have them.
(d) In the event, Mr Pereira became the beneficial owner of Davenrite.
(e) Mr Pereira suggested that Robert Norton might like to take Happle. However, Mr Pereira subsequently told her that Mr Norton was very ill and did not want the company.
(f) She could not remember if Mr Pereira ever told her that Mr Norton was prepared to take Happle.
(g) In the event, Mr Rump became the beneficial owner of Happle.
182 Mr Pereira travelled from the United Kingdom to Australia to give evidence at the trial. His evidence commenced on 3 September 2007 and was completed at about 10.20 am on 4 September 2007.
183 Mr Pereira's evidence was, relevantly, as follows:
(a) Mrs Wickerson asked him if he would 'take an interest' in Davenrite (ts 2006).
(b) He asked Mrs Wickerson if it was lawful for him to take an interest in Davenrite, she told him it was lawful, and he then told her that he would take an interest in the company (ts 2006).
(c) At about the time Mrs Wickerson put to him the proposal concerning Davenrite, he had a discussion with her about whether Mr Wollschlager might be interested in taking an interest in Courtenay and he introduced Mr Wollschlager to Mrs Wickerson (ts 2013 - 2014).
(e) He never discussed with Mrs Wickerson the possibility of Mr Norton taking an interest in Happle (ts 2014).
(f) He never had a discussion with Mr Norton about him (Mr Norton) taking an interest in Happle (ts 2014).
(g) Mrs Wickerson's relationship with Mr Norton was such that if she had wanted Mr Norton to take an interest in Happle, she would have spoken to him herself (ts 2014).
184 On 5 September 2007, counsel for Mr Corp applied to the learned trial judge for an order that Mrs Wickerson be recalled for further cross-examination. After hearing submissions, his Honour reserved his decision on the application to the morning of 6 September 2007.
185 On the morning of 6 September 2007, before the learned trial judge commenced handing down his decision, counsel for the respondent informed his Honour that if it was reasonably practicable to recall Mrs Wickerson, the respondent should do so, that the respondent was endeavouring to locate Mrs Wickerson in order to ascertain her availability to give evidence by video-link within a period that was reasonably appropriate to the determination of the trial proceedings, and that if it proved impossible to recall Mrs Wickerson the respondent maintained its position that the trial would not be unfair and should proceed in any event without her recall. After receiving this information, his Honour decided to defer delivering his decision on Mr Corp's application.
186 On 10 September 2007, counsel for the respondent informed the learned trial judge that contact had recently been made with Mrs Wickerson and that she was willing to give evidence voluntarily from the United Kingdom by video-link on Wednesday, 19 September 2007. Counsel for the respondent informed his Honour that the respondent maintained the position advanced in submissions on 5 September 2007, namely, that the interests of justice did not require Mrs Wickerson's recall. Counsel for Mr Corp informed his Honour that he had made his submissions on the application and did not resile from them.
187 On the morning of Tuesday, 11 September 2007, the learned trial judge delivered his decision on Mr Corp's application. His Honour dismissed the application and gave reasons, relevantly, as follows:
Since this application was made on 5 September and since I was advised to delay my decision because the prosecution had decided to try and locate Ms Wickerson, there have been some developments. On Monday, 10 September I was advised she had been located and had indicated preparedness to be recalled but was not available until Wednesday, 19 September. It seems therefore that she could be recalled but not without the trial being adjourned for a week or more.
She last dealt with these matters over many hours by video six months ago. There's no doubt in my view that practical considerations intrude into this matter. I include the undesirability of such a lengthy adjournment, especially insofar as a jury is concerned. I shall just address those difficulties first.
I'm told the prosecution case will conclude today, Tuesday, 11 September. It may briefly go over to tomorrow, Wednesday. Ms Wickerson is unable to be recalled until after lunch on Wednesday, 19 September. Thus if the application to recall is successful and the case adjourned meantime, the jury will be disbanded for seven days, returning to court on the eighth day in the afternoon.
In a case like this they are likely to lose much of their familiarity with the issues and evidence. However, however [sic] one describes it, they are likely to go off the boil and not only will they not be in court, they will not be with each other.
Another factor that arises, that has potential to go either way, depending upon what she would say, is the risk of over emphasis of the matter and issues covered with her because of the delay and the fuss required to have the witness recalled and the long break they will have before they hear the evidence.
It is highly likely Ms Wickerson won't recall - it seems to me it is highly likely she won't recall what it was she said to Pereira, or she will say that at least, and cross examining her on specifics based upon Pereira's understandings is unlikely to be fruitful. In any event, forensically the defence case raise unfairness in any event and are likely generally to do so extensively. It doesn't seem to me to be significant forensic disadvantaged [sic] by not cross examining Wickerson again as to this. The point can still be made, if it is to be made, about the extent of and effect of Pereira's changed evidence, upon his own evidence and upon her evidence.
...
Counsel for Mr Corp wishes to cross-examine Ms Wickerson and attack her credit on information that came to light in Pereira's second statement, which is evidence for the purpose of the discussion that he did give.
Pereira's evidence included his describing what he understood to be the arrangements with Ms Wickerson. He did not assert facts about what Ms Wickerson said to him, such as to be material that could form the basis of challenge or contradiction of Ms Wickerson's evidence it seems to me.
Given that the fact Wickerson got or tried to get Pereira to take the company seems uncontestable, but the prosecution - and Pereira was certainly paid 10,022 pounds and in fact hoped for more; and given that Wickerson's evidence involves her admitting to destroying documents, to knowing an investigation was being conducted by authorities, to backdating documents and to trying to obstruct any investigation by gifting relevant entities away to strangers and creating untrue documents to do so, she is personally vulnerable to adverse comment by ... counsel for the accused, as to her credit.
I would be very surprised if there wasn't - indeed, she might even, could even be, and I express no concluded view obviously, but she could even be described as an accomplice about whom a direction might be required.
Against all that rather sketchy background I have to weigh up whether it is warranted that she be recalled and tackled about the evidence of Pereira as to what he knew or did and what she said to him etc, or understood with respect to the three entities.
Again I repeat, this is when there seems little doubt about the dominant fact alleged; that is, that Ms Wickerson gifted - gifted or tried to gift the three companies away. How she did it, and as to the detail, seems to be by the by.
In all the circumstances I don't think the recall of Ms Wickerson to cross-examine her on evidence of Pereira is warranted in all the circumstances and I have to judge the case in all of the circumstances (ts 2428 - 2429, 2432).
188 Although it was contemplated, when the learned trial judge delivered his decision on 11 September 2007, that the respondent's case would be completed on that day or the next day, it continued until Friday, 14 September 2007. Counsel for Mr Corp did not, however, then renew his application to recall Mrs Wickerson.
189 It was submitted on behalf of Mr Corp to this court that it was reasonable and proper that Mrs Wickerson be recalled and that the learned trial judge should have granted the application. Mrs Wickerson was central to the respondent's case against Mr Corp. The significance of the failure to order her recall was, in the context of Mr Corp's case, that she was a witness who had received a 'letter of comfort' from the respondent, an admitted accomplice and a discredited person. According to counsel for Mr Corp, trial counsel should have been permitted to explore in cross-examination of Mrs Wickerson on her recall that she might have told lies or might have been mistaken in her evidence (that evidence having been given many months before the commencement of the trial). It was submitted that, in the circumstances, a substantial miscarriage of justice occurred.
Appeals against conviction: Mr Corp's ground 6: the merits of the ground
190 A trial judge should, in general, permit a witness to be recalled for further cross-examination if a matter of substance has not been cross-examined on, unless the recall would occasion some real, incurable, prejudice to the trial process or the party who called the witness. See Masters, Richards and Wunderlich (1992) 59 A Crim R 445, 473; Reid v Readdy [1999] WASCA 208 [10] - [14]; Fernando v The Queen [2000] WASCA 289 [49] (Murray J, Parker and Heenan JJ agreeing).
191 In January 1998, the ASC commenced its investigation into who controlled Davenrite, Happle and Courtenay. The respondent's case, at trial, was that Mr Corp knew the investigation had commenced and that, shortly after acquiring this knowledge, he disposed of the companies. Also, it was the respondent's case at trial that, in all the circumstances, the only inference reasonably open from Mr Corp's conduct in giving away the companies was that he knew he had a relevant interest in the shares in question and he knew that he had not disclosed that relevant interest as required by law. In other words, the respondent asserted that the giving away of the companies was, in essence, post-offence conduct which demonstrated a 'consciousness of guilt' (as it was expressed at the trial) on Mr Corp's part. The evidence of Mrs Wickerson and Mr Pereira in relation to the giving away of the companies was relevant to this issue. The respondent also relied on their evidence, in combination with the evidence from Mr Rump and the written statement of Mr Wollschlager, to prove that Mr Corp had given away the companies.
192 It is necessary to determine whether the learned trial judge made an error in failing to order that Mrs Wickerson be recalled (and whether, in consequence, a miscarriage occurred) by reference to the facts and circumstances before his Honour when he made the ruling on the morning of 11 September 2007.
193 There was nothing in Mr Pereira's evidence which cast doubt on Mrs Wickerson's evidence that she sought to dispose of Davenrite, Happle and Courtenay on Mr Corp's instructions. The relevant inconsistency between Mrs Wickerson's evidence and Mr Pereira's evidence is that Mrs Wickerson said that Mr Pereira raised with her the possibility of Mr Norton taking Happle, whereas Mr Pereira said that he had never mentioned that possibility to Mrs Wickerson and he had never made any attempt to arrange for Mr Norton to take Happle. The inconsistency did not relate to whether Mrs Wickerson in fact arranged for the companies to be given away, but rather to the detail of the means by which this was achieved.
194 Counsel for Mr Corp at trial, in his closing address, made use of the relevant inconsistency between the evidence of Mrs Wickerson and the evidence of Mr Pereira concerning the involvement of Mr Norton for the purpose of attacking Mrs Wickerson's credit. If Mrs Wickerson had been recalled, Mr Corp would have been unlikely to have obtained a material forensic advantage in addition to the advantage he had already achieved as a result of the inconsistency.
195 When the learned trial judge made the ruling on the morning of 11 September 2007, it was apparent, by reference to the facts and circumstances which then existed, that if Mrs Wickerson were to be recalled to give evidence on 19 September 2007, it would be necessary to adjourn the trial for about seven days (it being anticipated, at the material time, that the respondent's case would be completed on 11 September 2007 or the next day). Given the nature and subject matter of the trial, it is inevitable that the jury would have lost some familiarity with the issues and the evidence during an adjournment of that length. There was also the risk that, on the resumption, the jury would place undue emphasis on the further evidence of Mrs Wickerson concerning the inconsistency between her evidence and Mr Pereira's evidence. As Gibbs J (with whom Mansfield CJ agreed) noted in R v Hally [1962] Qd R 214, 220, as a general rule, once a jury has been empanelled and the hearing of evidence has commenced, it is most undesirable that there should be any prolonged adjournment of a criminal trial.
196 In my opinion, in all the circumstances, the learned trial judge did not make any error in ruling against Mr Corp's application to recall Mrs Wickerson, and his ruling did not, in any event, occasion a miscarriage.
Appeals against conviction: Mr Corp's ground 7
The learned trial judge erred in failing to give the jury an accomplice warning, or alternatively a Faure warning, in relation to the witness Wickerson, when she was a witness who had received a 'letter of comfort', an admitted accomplice, a discredited person, and her evidence was central to the Crown case against the appellant.
199 During his closing address, counsel for Mr Corp at the trial argued that Mrs Wickerson's admitted involvement in unsavoury and illegal business practices was highly relevant to the jury's assessment of her character. It was argued that inconsistencies in Mrs Wickerson's evidence also undermined her character. Counsel told the jury:
[S]he is simply someone who is always prepared to tell an untruth if it suits her (ts 3158).
200 Plainly, Mrs Wickerson was central to the respondent's case against Mr Corp, and if her evidence was not accepted by the jury they would have been bound to acquit Mr Corp on all counts.
201 The learned trial judge gave the jury this direction:
Can I make some mention to you about Mrs Sue Wickerson? You will remember that she was the first witness in the trial. She was a MACMA witness whose evidence was pre recorded. The prosecution relies on her evidence heavily in its case with respect to Mr Corp and without her, really, there is no case against Mr Corp. She proves documents and system but she also implicates or allegedly implicates Mr Corp by saying it was he and only he who gave her instructions with respect to Davenrite, [Happle] and Courtenay in trading in Welcome Stranger and Hallmark Gold shares.
She provides the evidence the prosecution relies on to show that Mr Corp had a relevant interest in those companies Davenrite, Happle and Courtenay. She is supported, the prosecution says, by other witnesses. She gave evidence of other instructions she alleges that Mr Corp gave her. She says she backdated documents, destroyed documents, gifted companies away. She says she sent letters that she knew to be misleading.
On analysis you might think she might be said to have engaged in unlawful conduct herself with respect to these matters. She apparently agreed to talk but only on receiving assurance that she was not personally at risk of prosecution. It is a notorious fact, ladies and gentlemen, that sometimes people go to lengths to deflect attention away from themselves when they have done something wrong and are concerned about getting into difficulties personally.
You need to assess her evidence carefully or extra carefully if you like. There is no suggestion she stood to gain personally in the alleged business activities she describes other than by normal company accounting fees that Abacus rendered. You know that she was told she was not the target of the investigation. Could I just ask you to bear those matters in mind in your deliberations and your consideration of her evidence? (ts 3339 - 3340).
202 It was submitted on behalf of Mr Corp to this court that although the learned trial judge gave the jury 'some warning' in relation to Mrs Wickerson, the warning was inadequate. His Honour should have conveyed to the jury, in clearer terms, the possible danger of convicting Mr Corp on Mrs Wickerson's evidence unless it was confirmed by other evidence. His Honour failed to convey that danger adequately. Instead, his Honour enhanced Mrs Wickerson's credibility by his observation that there was no suggestion she stood to gain personally in the alleged business activities. In the circumstances, his Honour's warning was inadequate and, as a result, a substantial miscarriage of justice occurred.
Appeals against conviction: Mr Corp's ground 7: the merits of the ground
203 In Khan v The Queen [1971] WAR 44, Burt J formulated a number of propositions in relation to the common law concerning the evidence of accomplices and the giving of a warning to the jury of the danger of convicting on the uncorroborated evidence of an accomplice. His Honour said:
(1) The uncorroborated evidence of an accomplice is admissible in law.
(2) It is the duty of the trial judge to warn the jury of the danger of convicting upon the uncorroborated evidence of an accomplice.
(3) And having been so warned, the jury may, none the less, convict on the uncorroborated evidence of an accomplice.
(4) When a question arises as to whether a particular witness is or is not an accomplice the answer to which is not foreclosed by a confession by the witness concerned or by his conviction and there being evidence upon which a reasonable jury could find that he was, the answer to that question is to be left to the jury and it is to be decided by the jury in the affirmative only if they so find on the balance of probabilities: Wigmore on Evidence, vol. 7, para. 2060 (e).
(5) Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.
(6) The evidence of one accomplice cannot corroborate the evidence of another accomplice.
(7) If the occasion arises for a direction as in para. 2, it is the duty of the trial judge -
(a) to explain to the jury what is meant by corroboration as in para. 5: R. v. Clynes (1960), 44 Cr. App. Rep. 158; and
(b) to give to the jury a broad indication of the evidence which the jury, if they accept it, may treat as corroboration: R. v. Goddard & Goddard, [1962] 1 W.L.R. 1282; [1962] 3 All E.R. 582.
(8) The rule as it appears in the preceding paragraphs is 'a modern rule of caution devised by judges and hardening within living memory into a rule of practice as imperative as a rule of law': Tripodi v. R. [1961] HCA 22; (1961), 104 C.L.R. 1, at p.9; [1961] HCA 22; [1961] A.L.R. 780. It is none the less a rule of practice: R. v. Teitler, [1959] VicRp 54; [1959] V.R. 321, at p. 329.
(9) If the warning is not given the conviction should be quashed unless there exists corroboration of such a convincing cogent and irresistible character that a reasonable jury if they had received the proper warning must have come to the same conclusion. It is only in such a case that the Court of Appeal will be able to hold that there has not been a substantial miscarriage of justice within the meaning of the proviso to s. 689 (1) of the Criminal Code: R. v. Lewis, [1937] 4 All ER. 360; 26 Cr. App. Rep. 110.
Authority for these propositions in addition to the cases as cited is to be found in the well-known cases of R. v. Baskerville, [1916] 2 K.B. 658; [1916-17] All E.R. Rep. 38, and Davies v. Director of Police Prosecutions, [1954] A.C. 378; [1954] 1 All E.R. 507 (53).
His Honour also considered the definition of the word 'accomplice' in the context of the decision of the House of Lords in Davies v Director of Public Prosecutions [1954] AC 378 (54).
204 Section 50 of the Evidence Act 1906 (WA) was inserted in 1988 and amended in 1992. It provides:
(1) In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2) On the trial of a person on indictment for an offence -
(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.
205 Section 50 of the Evidence Act abrogates the common law rule of practice that existed before its enactment. It is established, however, that notwithstanding the effect of s 50, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. It will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not that evidence is corroborated. These matters may well affect the form of the direction. See Foo v The Queen [2001] WASCA 406; (2001) 126 A Crim R 486 [30] (Parker J, Steytler J and Olsson AUJ agreeing). A warning will be required whenever it is necessary to avoid a perceptible risk of a miscarriage of justice in relation to the assessment of the evidence of the accomplice which arises from the circumstances of the case. See Milne v The State of Western Australia [2005] WASCA 38 [43] - [52] (Roberts-Smith JA, Malcolm CJ and Steytler P agreeing); White v The Queen [2006] WASCA 62 [77] - [78] (Wheeler JA); McKay v The State of Western Australia [2007] WASCA 196 [74] - [77] (Miller JA, Buss JA and Le Miere AJA agreeing).
206 In Cecez v The State of Western Australia [2007] WASCA 260, I reviewed s 50 of the Evidence Act and a number of authorities (including several decisions of the High Court) in connection with the circumstances in which a trial judge is required to give a warning to the jury, in the context of a prosecution witness who is not an accomplice, but who is of bad character and has his or her own interests to serve, and whose evidence is significant (or even critical) to the prosecution case. The authorities I reviewed included Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 261; Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314; White; Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497. It is unnecessary, in these reasons, again to review the authorities. Also see, in a different context, the more recent decision of this court in Collard v The State of Western Australia [2008] WASCA 47.
207 In my opinion, the authorities do not hold that, as a matter of course, a trial judge must instruct or warn the jury as to the need for careful scrutiny of the evidence of a prosecution witness whose evidence is significant (or even critical) to the prosecution case if the witness is of bad character or has his or her own interests to serve. The necessity or desirability for such an instruction or warning will depend, in each case, on the particular circumstances, including whether there is a risk that the jury may be unable to appreciate without assistance, or may overlook, some deficiency or danger associated with the witness or his or her evidence.
208 The credibility of Mrs Wickerson as a witness was affected adversely by several factors. For example, on her own evidence, she prepared false documents on Mr Corp's instructions; she destroyed documents on Mr Corp's instructions; she backdated documents on Mr Corp's instructions; she refused to provide any information to the ASC until she had received a letter from the ASC informing her that she was not a target of its investigation. All of these factors and their adverse impact upon Mrs Wickerson's credibility as a witness must have been obvious to the jury. They were not factors which the jury, in the absence of an instruction or a warning from the learned trial judge, might have failed to recognise as giving rise, in combination, to some deficiency or danger associated with her evidence.
209 In the circumstances, the instruction or warning which the learned trial judge in fact gave to the jury in relation to Mrs Wickerson's evidence was adequate. In particular:
(a) his Honour told the jury that without Mrs Wickerson the respondent had no case against Mr Corp (ts 3339);
(b) his Honour identified for the jury the factors which had an adverse impact on her credibility (ts 3339);
(c) his Honour told the jury that she might have engaged in unlawful conduct herself (ts 3339);
(d) his Honour explained that it was a 'notorious fact' that sometimes people go to lengths to deflect attention away from themselves when they have done something wrong (ts 3339);
(e) his Honour instructed the jury that they needed to assess Mrs Wickerson's evidence 'carefully or extra carefully' (ts 3339); and
(f) his Honour instructed the jury to bear in mind the factors he had identified in relation to Mrs Wickerson in their deliberations on and consideration of her evidence.
210 Counsel for Mr Corp at the trial did not request the learned trial judge to re-direct or give any further directions in relation to Mrs Wickerson or her evidence (ts 3340). As to the significance of the failure in this respect, see Gately v The Queen [2007] HCA 55; (2007) 82 ALJR 149 [76] - [77] (Hayne J, Heydon and Crennan JJ agreeing); Napier v The State of Western Australia [2007] WASCA 248 [32] - [33].
Appeals against conviction: Mr Corp's ground 8
The learned trial judge erred in his directions to the jury about the appellant's alleged consciousness of guilt in relation to all counts, thereby giving rise to a substantial miscarriage of justice.
213 The learned trial judge gave a direction to the jury in these terms:
I would now like to deal with another area entirely and it relates to evidence that was adduced through Wickerson and one or two other witnesses in relation to Mr Corp. It is only with respect to Mr Corp that this evidence is led and the evidence is led to suggest that he did things during the relevant time towards the end that showed he was conscious of having broken the law so it is, if you like, consciousness of guilt type evidence.
The evidence I refer to - and again reiterate these are the allegations, they are not - they are disputed. The evidence I refer to is, firstly, that of Wickerson, Dodd and perhaps Soares to the effect that Mr Corp gave instructions that faxes he had sent and copies of those sent to him be removed from the files of the companies Davenrite, Happle and Courtenay and shredded or destroyed.
There is also the evidence that alleges that in 1998 Mr Corp called in to the offices of Abacus in London and checked files to see if it was done and the prosecution also asserts that Mr Corp gifted the companies Davenrite, Happle and Courtenay away to people he didn't know to distance himself from those companies.
Finally the prosecution alleges that he instructed Wickerson to backdate documents relating to authorities given to brokers of Davenrite, Happle and Courtenay to deal with Mr Corp direct, again, the prosecution said, an attempt to distance himself. With respect to the allegations of instructions to Wickerson to destroy faxes, of course that is also the subject of count 35 against Mr Corp alone and it is alleged in that count that he did that in 1998.
I shall deal with that separately tomorrow but for the purposes of my present remarks, we are not so concerned with whether it was 98 or not but with whether it was done.
The prosecution alleges that Mr Corp was a very experienced accountant and businessman familiar with trading and the stock exchange and the laws and rules and regs that apply in the industry, and the prosecution says that you should draw an inference as to that. The prosecution alleges that Mr Corp knew what the term 'relevant interest' meant; that he wrote a letter or letters that are in evidence showing that he knew, and that anyway, being an accountant and trading in shares and being a careful company director, he would be likely to know, and the prosecution says you should find that he knew.
In other words, the prosecution says Mr Corp knew of the significance of documentary evidence that might show he controlled Davenrite, Happle or Courtenay; documents that could suggest those companies were accustomed to acting according to his wishes such as facsimiles. The prosecution says knowing that, Mr Corp's efforts to do the acts I have mentioned has significance and show that you can infer that he had - shows that he had a consciousness of guilt.
With respect to these matters, your first task, ladies and gentlemen, is to decide whether you are satisfied the alleged acts were done. That is the fundamental key finding. If you're not, then you can forget about this part that I'm dealing with: do you find beyond reasonable doubt that the alleged things were done? Did he give instructions to destroy faxes? Did he check that it was done? Did he instruct backdating of documents? Did he direct that companies be given away?
You have heard from prosecution witnesses that he did these things - mainly Wickerson, Dodd, Soares as to destruction. You have an asserted absence of written evidence of communications from Mr Corp - or to Mr Corp, save for the Ruane documents. As to the gifting of companies, you have the material from Pereira, Rump and Wollschlager, you have heard evidence to the contrary. However, submissions have been made - and argument has been made to the effect that you should not accept the evidence of Wickerson and it has been submitted that the assertion that Mr Corp instructed that the companies be gifted away is inherently unlikely given their value at the time being more than $2 million.
So if you are not satisfied any of those things happened, then you can put the issue of them aside and think no more about it, but if you are satisfied any of those things occurred and you find as a fact that it occurred, then you need to know what can be made of that - what use you would make of that. You need to consider whether Mr Corp did the act you find that he did if you do; that is, he gave the instructions as alleged because he had a consciousness of guilt. This requires the drawing of an inference, as I have explained earlier, remembering you can consider this in the light of all the evidence.
The question is: are you satisfied beyond reasonable doubt Mr Corp did the act because of a consciousness of guilt? If it could have been done out of panic or fear he would be wrongly accused if investigators discovered these matters or some other reason you think possible, then it wouldn't be done out of a consciousness of guilt but would be done for another reason.
If you find Mr Corp did the act out of a consciousness of guilt, then you need next to consider whether that was a consciousness of guilt concerning the offences alleged, and more particularly, whether he was conscious in doing the act that he had a relevant interest in the mining companies, shares held by Davenrite, Happle and Courtenay and that he had not disclosed when required by law to do so.
If you were to find that he did have a consciousness of guilt of that, then you are able to consider whether that supports a conclusion of guilt of the offences alleged or any of them. I re-emphasise, none of this type of evidence has been led with respect to Mr Smith at all. This type of evidence is only led with respect to Mr Corp and can only be considered in your deliberations about the case relating to Mr Corp alone (3340 - 3342).
214 Mr Corp's trial counsel objected to the direction. It was contended, relevantly, that a Zoneff direction, rather than an Edwards direction, should have been given. The learned trial judge declined to re-direct or give any further directions (ts 3349 - 3353).
215 Before this court, three complaints were made in relation to the learned trial judge's direction.
216 First, it was submitted that his Honour should have avoided using the term 'consciousness of guilt' in that it was potentially misleading. More neutral language such as 'evidence of post-offence conduct' should have been employed. It was argued that the point was of significance because one aspect of the conduct relied on by the respondent as evidencing 'consciousness of guilt' was the subject of a separate count, namely count 35, on which the jury acquitted. The jury may well have acquitted in consequence of Mrs Wickerson's evidence deviating substantially from the date specified in the count. Nevertheless, his Honour directed the jury, relevantly, to the effect that 'we are not so concerned with whether it was 98 [the year 1998 was specified as the date of the alleged commission of the offence in count 35] or not, but with whether it was done' (ts 3340). Accordingly, the jury was instructed that they could use the allegation concerning the destruction of documents to reason towards guilt in relation to one or more of the offences, even if they were not satisfied to the requisite standard that Mr Corp was guilty of the charge alleged in count 35.
217 Secondly, it was submitted that it would have been difficult for the jury to reconcile the direction on 'consciousness of guilt' with the learned trial judge's direction that they must consider each count against each of the accused separately (ts 3260).
218 Thirdly, it was submitted that the learned trial judge's direction on 'consciousness of guilt' failed to comply with the requirements of an Edwards direction (adapted to the circumstances of post-offence conduct other than lies). His Honour directed the jury:
You need to consider whether Mr Corp did the act you find that he did if you do; that is, he gave the instructions as alleged because he had a consciousness of guilt. This requires the drawing of an inference, as I have explained earlier, remembering you can consider this in light of all the evidence (ts 3341 - 3342).
Counsel for Mr Corp submitted to this court that his Honour should have directed the jury that they had to be satisfied that the post-offence conduct related to a material issue on one or more of the other counts on the amended indictment, and that Mr Corp engaged in the conduct because he knew of the offences or some aspect of them and feared revelation of implication in their commission.
219 According to counsel for Mr Corp, the learned trial judge's direction as to post-offence conduct was fundamentally flawed.
Appeals against conviction: Mr Corp's ground 8: the merits of the ground
220 Before this court, counsel for the respondent said that the learned trial judge 'could have refrained' from describing the evidence of Mr Corp's relevant conduct as 'consciousness of guilt type' evidence. Counsel did not accept, however, that his Honour's use of this phrase constituted an error of law.
221 In Martinez v The State of Western Australia [2007] WASCA 143, this court referred to Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 and the criticisms of Kirby J, in the context of lies as distinct from other post-offence conduct, of the notion of 'consciousness of guilt' [62] - [64]. Martin CJ, Steytler P and Miller JA noted:
Kirby J also agreed (at [63]) with the view expressed by the Supreme Court of Canada in R v White [1998] 2 SCR 72 at 85 that the 'label is somewhat misleading and its use should be discouraged'. The Canadian Supreme Court thought it preferable to use a more general and neutral description such as 'evidence of post-offence conduct' (although cp R v Franklin [2001] VSCA 79; (2001) 3 VR 9 at [121] per Ormiston JA). One of the reasons Kirby J gave for his agreement with these comments was that the words 'consciousness of guilt' suggest a conclusion about the conduct in question which tends to undermine the presumption of innocence (at [63]). He also regarded the phrase as being 'extremely opaque' (at [64], [89]; see also Franklin at [118], [121], [127] per Ormiston JA) [283].
222 Although the use of the phrase 'evidence of consciousness of guilt' is to discouraged, and the use of the phrase 'evidence of post-offence conduct' is distinctly preferable, at least in the context of post-offence conduct not involving lies, the use of the phrase 'evidence of consciousness of guilt' by a trial judge in his or her charge to the jury does not necessarily, of itself, constitute an error of law or give rise to a miscarriage of justice. In the present case, the learned trial judge's reference to 'consciousness of guilt type' evidence was not, in the circumstances, an error of law, and it did not occasion a miscarriage.
223 The evidence of documents being destroyed on Mr Corp's instructions was not the only evidence relevant to proof of his guilt of the other offences on the amended indictment than count 35. Also, that evidence was not an indispensable link in the chain of proof of the other counts than count 35. See Shepherd (578 - 579, 585).
224 In my opinion, the evidence of documents being destroyed on Mr Corp's instructions shortly after he allegedly became aware of the ASC investigation was part of the combination of facts and circumstances to be considered by the jury in determining whether they were satisfied beyond reasonable doubt that Mr Corp had committed any of the offences with which he was charged.
225 In the circumstances, it was unnecessary for the learned trial judge to direct the jury that if they were not satisfied beyond reasonable doubt that Mr Corp was guilty of the offence charged in count 35 as particularised, they could not rely on the evidence of the alleged destruction of documents on his instructions as evidence of post-offence conduct that was part of the combination of facts and circumstances from which an inference of guilt on one or more other charges may be drawn. See Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 209 - 210 (Deane, Dawson and Gaudron JJ).
226 Nevertheless, the learned trial judge did in fact direct the jury that before they could rely on the evidence in question as evidence of consciousness of guilt, they had to be satisfied beyond reasonable doubt that Mr Corp had engaged in the relevant conduct (ts 3341). This direction was favourable to Mr Corp.
227 The learned trial judge's direction was not inconsistent with the direction he gave at the commencement of his charge that the jury must consider separately each of the counts in the amended indictment (ts 3260). Also, there is no reason to believe that the jury would not have understood that, although the evidence of the alleged destruction of documents on Mr Corp's instructions was relevant, in combination with all of the facts and circumstances, to their consideration of whether an inference of guilt should be drawn on any of the charges against Mr Corp, they still had to consider each charge separately and decide whether, on the whole of the facts and circumstances, they were satisfied to the requisite standard that Mr Corp was guilty of the charge.
228 The learned trial judge was obliged to direct the jury that before they could rely on the alleged post-offence conduct of Mr Corp as a fact or circumstance which, together with all other relevant facts and circumstances, might support an inference of guilt on any of the charges against him, they had to be satisfied beyond reasonable doubt as to the following:
(a) The conduct in question related to some circumstance or event connected with the offences with which Mr Corp was charged; in other words, it related to a material issue. See Edwards (208, 209); Martinez [276] - [277].
(b) The conduct was engaged in by Mr Corp as a result of a realisation of guilt and in order to avoid being implicated in the commission of the offences. See Edwards (209); Martinez [278].
(c) Mr Corp did not engage in the conduct for any other reason than a realisation of guilt. See Edwards (211); Martinez [279] - [285].
229 In my opinion, the relevant post-offence conduct relied on by the respondent against Mr Corp related to a material issue, namely, whether Mr Corp knew he had a relevant interest in the shares in question and whether he knew he had not disclosed that relevant interest as required by law.
230 The learned trial judge, in directing the jury in relation to the alleged post-offence conduct relied on by the respondent, said:
(a) The respondent's case was that Mr Corp knew he had a relevant interest in the shares in question and knew of the significance of the documents which might show that he controlled Davenrite, Happle or Courtenay (ts 3341).
(b) If the jury was satisfied beyond reasonable doubt that Mr Corp engaged in the relevant conduct then, before they could make any use of that fact, they had to be satisfied beyond reasonable doubt that the conduct was engaged in because of a consciousness of guilt and not out of panic or fear that he would be wrongly accused if investigators discovered these matters 'or some other reason you think possible' (ts 3341 - 3342).
(c) If the jury was satisfied that Mr Corp engaged in the relevant conduct out of a consciousness of guilt then it was necessary for them to consider whether that was a consciousness of guilt relating to the offences alleged against him 'or more particularly whether he was conscious in doing that act that he had a relevant interest in the mining companies shares held by Davenrite, Happle and Courtenay and that he had not disclosed when required by law to do so' (ts 3342).
(d) If the jury was satisfied that Mr Corp did have a consciousness of guilt 'of that' (that is, of his knowledge of his relevant interests and his failure to disclose those interests as required by law) then they were able to consider whether that consciousness of guilt supported a conclusion of guilt of the offences alleged against him or any of them (ts 3342).
231 Although the learned trial judge's direction did not replicate precisely the terms used in Edwards, the direction did not deviate substantially from its requirements. It conveyed adequately to the jury that before they could use the evidence of the relevant post-offence conduct against Mr Corp they had to be satisfied beyond reasonable doubt that the conduct was concerned with some circumstance or event connected with the offences with which he was charged (that is, that it related to a material issue), and that it was engaged in out of a realisation of guilt in relation to those offences or any of them, and not for any other reason. See Edwards (210 - 211).
Appeals against conviction: Mr Smith's ground 1
The learned trial judge erred in permitting the Crown to adduce foreign material being an unsigned and undated document (referred to as a 'letter of wishes' - P00230838) and the testimony of John Ellis and James Hardcastle concerning it.
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.ii). that 'it is typical of a copy document found on a file'.
The Directors
Steeple Trustee Company Limited
7 Library Place
St Helier
Jersey
I wish to create a Discretionary Settlement and would like to appoint Steeple Trustee Company Limited of 7 Library Place, St Helier, Jersey as Trustees. I am domiciled in Switzerland and am to be the sole Settlor. I enclose ₤100 representing the settled property of the Trust which I should like to be known as the 'Gold Coast Trust'.
The Trustees are to have fully discretionary powers. These discretionary powers will extend to the beneficiaries of the settlement but I would like the Trustees to consider the following.
Christine Ann Schoephoester
C/O 365 Alma Road
Caulfield North
Victoria
Australia 20%
Bruce Cozens
20 Hillcrest Avenue
Kew
Victoria, 3101
Australia 40%
Brian Millwood Smith
C/O PO Box 194
South Perth
Western Australia, 6151
Australia
20%
George James McMaster
C/O PO Box 6555
St Kilda Road Central
Melbourne
Victoria 3004
Australia 20%
In the event of the death of any [sic] the above beneficiaries then I would also like the Trustees to consider their immediate family.
I appreciate that the Trustees have absolute discretion in this matter and have a right to disregard my wishes, but I would expect them to consult with me during my lifetime before making major decisions affecting or [sic] its property.
235 The document produced at the trial was unsigned and undated. It is to be noted that the persons whom it is said the writer of the letter would like the trustees of the Gold Coast Trust to consider include Mr Smith as a beneficiary of '20%' of the trust property. As I have mentioned, Centurion was formerly called Steeple Trustee Company Ltd.
236 Mr Ellis gave evidence, recorded before the trial, relevantly, as follows:
(a) The settlor of the Gold Coast Trust was Jutta Suess who was domiciled in Switzerland.
(b) He had not seen a signed and dated version of the letter of wishes in the records of the Gold Coast Trust.
(c) He did not know why there was no signed and dated version of the letter of wishes in the records of the trust.
(d) When a discretionary trust is constituted, a letter of wishes is usually prepared by the settlor and the letter is usually signed and dated.
(e) A signed letter of wishes is a fundamental document in the establishment of a discretionary trust.
(f) When a signed letter of wishes is provided to Centurion in relation to a proposed discretionary trust, it is placed with the permanent records of the trust.
(g) It was 'certainly a possibility' that, because of its fundamental value to the trustees, there was in fact a signed letter of wishes relating to the Gold Coast Trust which was originally on Centurion's files but which is no longer on those files.
(h) He did not know why any original signed version of the letter of wishes may have been removed from Centurion's files.
(i) He could not say whether the letter of wishes relating to the Gold Coast Trust had ever been signed. It was possible that the copy letter of wishes produced at the trial was not a copy of the original. It was speculation that it was a copy of the original.
(j) It was likely that there was a signed letter of wishes in relation to the Gold Coast Trust, but he could not speculate as to why it no longer existed.
237 Mr Hardcastle gave evidence at the trial, relevantly, as follows:
(a) He had previously seen the copy letter of wishes in Centurion's files.
(b) It was usual practice for Centurion to obtain a signed and dated letter of wishes when a discretionary trust was established.
(c) Jutta Suess was the settlor of the Gold Coast Trust.
(d) The copy letter of wishes was Jutta Suess's letter.
(e) He did not recall seeing an original signed and dated version of the copy letter of wishes.
(f) A copy of an original signed letter of wishes is normally placed on Centurion's permanent file and the original of the letter is 'invariably' placed in safe custody with the bank.
(g) To the best of his knowledge, Mr Ellis had attempted unsuccessfully to locate the original letter of wishes relating to the Gold Coast Trust.
(h) It was normal procedure for a copy of an original signed and dated letter of wishes to be placed on Centurion's file because it enabled Centurion to have immediate access to it given that the original was lodged with the bank.
(i) Although he could not recall seeing the original letter of wishes relating to the Gold Coast Trust on Centurion's files, he did 'know that there was one - we wouldn't complete our files without it'.
(j) He could not say what had happened to the original signed and dated letter of wishes relating to the Gold Coast Trust.
238 Mr Ellis gave evidence at the trial concerning a meeting which he had with Mr Corp in Jersey 'several years ago'. He said that during the meeting Mr Corp requested a copy of the letter of wishes relating to the Gold Coast Trust. Subsequently, under cover of a letter dated 17 June 1998 sent by facsimile transmission to Mr Corp, he provided Mr Corp with a copy of that letter of wishes and a copy of a letter dated 9 September 1997 from Mr Smith to 'Centurion Management Services Ltd acting as Trustee for the Gold Coast Trust'.
239 In his letter dated 9 September 1997, Mr Smith stated that, although under the terms of the Gold Coast Trust the trustee had a wide and unfettered discretion in the distribution of the trust fund, he 'wish[ed] to record' that during his lifetime he was 'entitled to both income and capital of the Trust Fund', and that more generally during his lifetime the trustee was to follow his instructions as to 'the remuneration of the trust and management and distribution of income and capital of the Trust Fund'. As to this letter, Mr Hardcastle said in evidence that it was an important document because it gave 'further instructions or guidelines to the trustees in respect of [Mr Smith's] 20% holding'. Mr Hardcastle's reference to Mr Smith's 20% holding was a reference to the potential 20% interest specified in the copy letter of wishes.
240 Mr Hardcastle authenticated in his evidence the minutes of a meeting of the trustees of the Gold Coast Trust held on 4 June 1986. The minutes record a resolution to accept the sum of ₤100 in cash, which had been received from Jutta Suess, the settlor of the Gold Coast Trust, as the trust's settled funds. The minutes are consistent with the terms of the copy letter of wishes which state, relevantly, that 'I enclose ₤100 representing the settled property of the Trust which I should like to be known as the "Gold Coast Trust"'.
241 At trial, counsel for Mr Smith objected to the admissibility of the copy letter of wishes and the evidence concerning it. The objection was based on the proposition that the copy letter of wishes was not admissible under s 73A(1) of the Evidence Act. Section 73A provides, relevantly:
(1) A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document, whether or not that other document still exists.
(2) In determining whether a particular document accurately reproduces the contents of another, a court is not bound by the rules of evidence and -
(a) may rely on its own knowledge of the nature and reliability of the processes by which the reproduction was made;
(b) may make findings based on a certificate in the prescribed form signed by a person with knowledge and experience of the processes by which the reproduction was made;
(c) may make findings based on a certificate in the prescribed form signed by a person who has compared the contents of both documents and found them to be identical; or
(d) may act on any other basis it considers appropriate in the circumstances.
242 The learned trial judge ruled that the copy letter of wishes was admissible under s 73A. His Honour held, relevantly, that:
(a) the document had the appearance of being a copy of an original;
(b) the document was typical of a copy document found on an office file;
(c) by reference to the events and alleged business conduct, the original of the document must have existed and must have been utilised or relied upon; and
(d) it was highly likely that the document accurately reproduced the contents of the original.
243 Counsel for Mr Smith submitted to this court that in making these findings and concluding that the document was admissible, his Honour fell into error. In particular, it was submitted:
(a) There is nothing about the appearance of the copy letter of wishes that suggests it is a copy of a signed original document. The copy letter is addressed to the directors of Steeple. No sender is named. An original letter received by Steeple from the settlor of the trust would name the sender and would be signed and dated. A copy would reproduce these features. There is nothing in the appearance of the copy letter which suggests it was created by the settlor and sent to Steeple. If the copy letter of wishes was from Steeple to a third party, its presence in Steeple's files would be typical of a copy document from that company. It is, however, addressed to Steeple and is therefore atypical.
(b) Although the evidence of Mr Ellis and Mr Hardcastle established that a signed and dated letter of wishes is an important document in the creation of a discretionary trust, their evidence fell well short of permitting a finding that if one existed in relation to the Gold Coast Trust, then the copy letter accurately reproduced it.
(c) For s 73A to be engaged, it is not sufficient that the document is 'highly likely' to reproduce the contents of an original document. The court must determine that the copy document does in fact accurately reproduce the contents of an original. The genesis of the copy letter of wishes is unknown. It is mere speculation that it may accurately reproduce the contents of an original letter.
244 Counsel for Mr Smith asserted that the copy letter of wishes was a critical document in the respondent's case against Mr Smith in that it named him as a potential beneficiary of the Gold Coast Trust. The admission of the copy letter, together with the evidence of Mr Ellis and Mr Hardcastle in relation to it, caused the trial to miscarry.
Appeals against conviction: Mr Smith's ground 1: the merits of the ground
245 In oral argument before this court, I put to counsel for Mr Smith that, irrespective of the merits of his argument as to whether the copy letter of wishes was admissible under s 73A of the Evidence Act, the copy letter was admissible under the business records provision in s 73C(2a) of the Evidence Act. The business records provision was considered by this court in Beamish v The Queen [2005] WASCA 62 and Cavill v The State of Western Australia [2008] WASCA 108. It is unnecessary to reproduce in these reasons the analysis and conclusions in those authorities. Counsel for Mr Smith conceded, in oral argument, that the copy letter of wishes was admissible under the business records provision. That concession was properly made. It is not material that at the trial the respondent did not rely on s 79C(2a) in tendering the document or that the learned trial judge did not rely on that provision in ruling on the copy letter's admissibility. The critical point is that the copy letter was tendered and admitted into evidence, and it was admissible according to law. The matters complained of by Mr Smith in his ground 1 are therefore inconsequential.
Appeals against conviction: Mr Smith's ground 11 and Mr Corp's ground 11
247 Mr Smith's ground 11 and Mr Corp's ground 11 allege that by reason of an aggregation of errors, his trial miscarried.
248 It was submitted to this court that if the court were to conclude that none of the individual grounds led to a substantial miscarriage of justice, the combination or aggregation of the errors revealed by the several grounds resulted in such a miscarriage.
Appeals against conviction: Mr Smith's ground 11 and Mr Corp's ground 11: the merits of the grounds
249 I have decided that Mr Smith's grounds 7, 8 and 9 and Mr Corp's grounds 5 and 10 have been made out. It is unnecessary, in the circumstances, to consider Mr Smith's ground 11 and Mr Corp's ground 11.
250 I would grant leave to appeal on each of the grounds relied on by Mr Smith and Mr Corp.
251 Mr Smith's ground 9 and Mr Corp's ground 5 have been made out in relation to counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B. I would allow the appeals in relation to the convictions on those counts, quash the convictions and enter verdicts of acquittal.
252 Mr Smith's grounds 7 and 8 and Mr Corp's ground 10 have been made out in relation to all of the counts on which they were convicted. I would allow the appeals, quash the convictions and order a retrial of Mr Smith on counts 6, 9, 26, 27, 28, 29, 30, 32B and 34, and a retrial of
Mr Corp on counts 1, 7, 10, 11, 23, 24, 25, 31, 32A and 33. Although Mr Smith's grounds 7 and 8 and Mr Corp's ground 10 have also been made out in relation to counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B, for the reasons I have given, I would not order a retrial on those counts.
253 The court has decided unanimously that the appeals against conviction should be allowed and the convictions quashed in relation to some counts, and by a majority that the appeals against conviction should be allowed and the convictions quashed in relation to the balance of the counts. It is therefore unnecessary and, in circumstances where verdicts of acquittal are to be entered on some counts and a retrial is to be ordered on other counts, undesirable to deal with the appeals against sentence.
254 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Buss JA. I agree with those reasons and with the conclusion reached by his Honour that:
(1) leave to appeal should be granted in relation to each ground argued by each appellant;
(2) the appeals of each appellant should be allowed on ground 9 (Smith) and ground 5 (Corp), so that the convictions on counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B should be quashed and verdicts of acquittal entered on each of those grounds;
(3) the appeals of each appellant should be allowed on grounds 7 and 8 (Smith) and ground 10 (Corp), so that the convictions of Smith on counts 6, 9, 26, 27, 28, 29, 30, 32B and 34 and of Corp on counts 1, 7, 10, 11, 23, 24, 25, 31, 32A and 33 should be quashed and a new trial ordered;
(4) the other grounds of appeal of each appellant should be dismissed.
255 I agree that it is unnecessary and undesirable to deal with the appeals against sentence.
256 I wish to say only something about the grounds of appeal which relate to the trial judge's failure generally to direct the jury that any comment made by him about the facts of the case was only personal comment of the judge and a matter which could be ignored by the jury. I shall refer also to three particular comments made by the trial judge. In relation to each of these, there was also a failure to direct the jury that they were observations that could be ignored by them if they wished.
257 The grounds of appeal of each of the appellants which raise these issues are grounds 7 and 8 (Smith) and ground 10 (Corp).
258 There are two grounds of appeal formulated on behalf of the appellant Smith. The first relates to the failure of the trial judge generally to direct the jury that they were not bound by any comment he made, and the second identifies the three specific comments about which complaint is made:
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In particular his Honour told the jury:-
(a). 'You might think it would be simple for a person who wished to give an appearance of being separated from shares to place them in a discretionary trust...'
(b). 'It is unlikely all companies strictly follow their own rules and regulations on all occasions... what happened at meetings of Welcome Stranger and Hallmark needs to be assessed I think bearing these factors in mind'.
(c). 'If you find the accused had a relevant interest, you might have little difficulty in drawing the inference in all the circumstances that the accused knew the document was misleading'.
259 The ground of appeal formulated on behalf of the appellant Corp is as follows:
Ground 10:
The learned Trial Judge erred by failing to advise the jury, sufficiently or at all, that should they conclude from what is said during the summing up that he has formed a certain view about the case (or matters alleged during the case), they must however remember that it is their views about the facts which count and that if their views turned out to be different from those of the trial Judge it is not only their right but also their duty to give effect to those views. That omission of itself, and also in the context of numerous comments made by the Learned Trial Judge upon the facts adverse to the Appellant, gave rise to a substantial miscarriage of justice.
260 The trial of the appellants occupied the period 6 August to 4 October 2007 in the District Court at Perth. It was a major 'white collar' criminal trial. The facts were complex.
261 The trial judge's directions to the jury began on 28 September 2007. That was a Friday, and it was late in the afternoon that the instructions began. Preliminary matters only were discussed on that day. The trial judge began by saying:
It has been a lengthy trial. It has had moments when it has been very tedious and boring and everybody has been in the same boat, as I have tried to empathise with you, during the course of it but you have just got to do the best you can. Can I just say to you, I know I mentioned one or two of these matters to you before but I just want to remind you of them. I'm the judge of the law, as I have just explained.
I will be telling you what the law is. It's important you be reminded what your function is. You are the judges of the facts. You have heard all of the evidence and done your best to listen to it and follow it, and it is up to you what you make of what you have heard and seen in this trial.
Each of the lawyers has, as is their responsibility, urged you to take a particular view of things, to look at the facts from their point of view and you can either accept that or not but what you need to realise is that you don't have to agree with what has been put to you. It is a matter for you because you are the sole judges of the facts.
262 In the concluding paragraph, the trial judge told the jury that each of the 'lawyers' had urged a particular view of matters, but that the jury could either accept or reject what they put to them. The 'lawyers' were eminent senior counsel representing both the prosecution and the defence.
263 The fact that the trial judge stressed that any views expressed by counsel could be either accepted or rejected by the jury made it incumbent upon him to make the same observation about any comments he made himself. This was not done at this preliminary stage.
264 The trial judge's charge to the jury resumed on the morning of 2 October 2007. His Honour again drew attention to the observations of counsel, pointing out to the jury that they could either accept or reject the 'urgings of each of the counsel':
It is entirely up to you what you make of what you have heard in this trial. You can accept or reject the urgings of each of the counsel. Obviously one is a prosecutor and has tried to persuade you to his point of view. The other two are defence counsel and they have tried to persuade you to their point of view. You have had the benefit of that.
265 This was an opportune moment for the trial judge to tell the jury that any comment made by the judge himself on any matter of fact was simply the comment of the judge and a matter which could either be accepted or rejected by the jury. This was not done.
266 The trial judge's charge to the jury proceeded for the whole of the day of 2 October 2007 and for a substantial part of the day of 3 October. It seems almost inconceivable that in a summing up that proceeded over a period of three days, experienced senior counsel (of whom there were three in the court) could have missed the absence of direction by the trial judge of a fundamental requirement of a criminal trial.
267 It is also difficult to understand how an experienced District Court trial judge could himself have overlooked the need to direct the jury that any comment made on his part was merely that, and not binding upon them. The requirement to make this observation to the jury is fundamental and is a feature of most Bench Books in use in the different Australian States. An example is the Victorian Criminal Charge Book. The model direction in this Charge Book (as at 9 May 2008) is in the following terms:
It is my role, as the judge, to explain to you the principles of law that you must apply to make your decision. You must accept and follow all of those directions.
I want to emphasise again that it is not my responsibility to decide this case - that is your role. The verdict that you return has absolutely nothing to do with me. So while you must follow any directions I give you about the law, you are not bound by any comments I may make about the facts.
If I happen to express any views upon questions of fact, you must disregard those views, unless they happen to agree with your own independent assessment of the evidence. That is what I mean when I say that you alone are the judges of the facts in this case. [3.2.1]
268 Another example is the Western Australian District Court Bench Book, where the following model direction is to be found:
My first direction is that you must - as judges obviously must - decide the case according to the evidence, not according to prejudice, bias, sympathy, gossip or anything else. [Special prejudice].
The evidence is what you hear on oath from the witnesses, what you observe of their demeanour and personality and what exhibits are admitted into evidence for you to look at. You consider all the evidence in the case, give each part of it the importance which you as a judge think it should be given - accept what you believe is true and should be accepted, reject what you disbelieve - and, in accordance with the weight you give to such evidence as you accept, you determine what in your judgment are the true facts.
My second direction is that the comments and arguments of counsel are, of course, not evidence. You should consider them as arguments to see if they help you. If they don't, then it is your duty to reject them from further consideration.
And my third direction is that any comment or argument which I might put to you about the facts - as distinct from these directions of law - is in the same position as those put by counsel. It is your judgment which is required and you must allow no one to usurp it. [1-1.31]
269 As the trial judge was a member of the District Court of Western Australia, it can safely be assumed that he had access to the Court's Bench Book.
270 There is good reason for trial judges to follow the accepted format of jury directions, particularly those that relate to the role of the judge. In R v Sinclair (1989) 44 A Crim R 449, Vincent J at 452 emphasised the importance of trial judges following the 'signposts' that have been laid down over the years for trial judges in charging juries. His Honour said:
There will, of course, of necessity be adaptation of the form and method of delivery required from time to time in individual cases. However, it must be appreciated that a departure from the generally accepted form of a judge's charge carries with it the danger that the absence of the various signposts which remind judges of the necessity to provide appropriate instructions concerning relevant matters of law may lead, through inadvertence, to no or no adequate instructions being given on important matters. It is also possible that in such circumstances the charge may become confusing to the jury, or difficult to follow. If the judge decides that it is appropriate to depart from the normal method of charging the jury, then it appears to me that it would be necessary for particular care to be exercised by him to ensure that the dangers to which I have adverted cannot arise. (452)
The impact of a trial judge's comment on the facts
271 In Broadhurst v The Queen [1964] AC 441, Lord Devlin at 465, delivering the advice of Viscount Radcliffe, Lord Morton and himself in the Privy Council, said:
The opinions of the presiding judge on issues of fact can often be of great assistance to the jury. But it is very important that the jury should be told that they are not bound by them nor relieved thereby of the responsibility for forming their own view. Nevertheless, a jury is likely to pay great attention to them: and even in a case where a proper warning is given, an appellate court may still intervene if it considers them far stronger than the facts warrant. (464)
272 This passage underlines the impact that the opinions of the trial judge are likely to have when expressed by way of comment before the jury. It may be that this is more particularly so in a very long white collar trial.
The obligation to direct the jury in relation to comments by the trial judge
273 There are numerous cases in which the High Court has made it clear that it is a fundamental obligation of a trial judge to direct the jury that any comment or opinion made by the trial judge represents purely the view of the trial judge and is not to be taken by the jury as binding on them. In Green v The Queen [1971] HCA 55; (1971) 126 CLR 28, Barwick CJ, McTiernan and Owen JJ said:
He [the trial judge] presented his own view which was frequently, though not always, unfavourable to the accused. He was of course entitled to express his opinion of the facts as long as he made it clear to the jury that they were not bound by his views. But, although at several points the jury were reminded that the facts were for them, we have come to the conclusion that this summing up transcends anything that a trial judge was entitled to do in the circumstances. (34)
274 This passage is particularly applicable to the present case. Although the trial judge cannot be said to have presented a view which was frequently unfavourable to the accused, his Honour did not make it clear that the jury were not bound by his views. He did remind the jury on several occasions that the facts were for them, but omitted to stress the fact that any opinion he expressed was his own and not binding upon them.
275 In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ warned of the potential dangers of judges making comment on the facts of a case:
... [nothing should] obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. (See, eg, Tsigos v The Queen (1965) 39 ALJR 76 (n)). But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel. [42]
276 In Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, Gaudron, Gummow and Hayne JJ made clear the distinction between judicial direction and comment. Their Honours said:
The distinction between a matter for comment and a matter for judicial direction reflects the fundamental division of functions in a criminal trial between the judge and the jury. It is for the jury to decide the facts of the case. It is for the judge to explain to the jury so much of the law as they need to know in deciding the real issue or issues in the case. In the course of directing the jury, the judge must give the jury such warnings as may be called for by the particular case, not only against following impermissible paths of reasoning, but also about the care that is needed in assessing some types of evidence such as evidence of identification.
It is, however, not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt. That is the province of the jury. The judge's task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning. That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established. But the distinction between comment and direction is important. [49] - [50]
277 In Mahmood v The State of Western Australia [2008] HCA 1; (2008) 82 ALJR 372, Gleeson CJ, Gummow, Kirby and Kiefel JJ stressed the need for trial judges to tell juries that they may ignore any comment made by judge:
The distinction between a direction and a comment by a trial judge is referred to in Azzopardi v The Queen. It reflects the fundamental division of functions in a criminal trial between the judge and the jury. The distinction is important. Telling a jury that they may attach particular significance to a fact, or in this case suggesting that other evidence may be considered of greater weight, is comment. Because it is comment it may be ignored by the jury, a matter about which the jury should be told. A direction, on the other hand, may contain warnings about the care needed in assessing some evidence or the use to which it may be put. A direction is something which the law requires the trial judge to give to the jury and which they must heed (Azzopardi v The Queen at [50]). [16]
278 In Azzopardi, McHugh J dissented as to the outcome of the case, but in the course of his judgment made it clear that it is mandatory for a trial judge to make clear to the jury that they may disregard any comments he might make on the facts. His Honour said:
The judge is entitled to suggest to the jury any line of reasoning that the jury may use in its deliberations. The judge may even express an opinion as to the verdict that the jury should give [R v Dee (1985) 19 A Crim R 224, 227]. If the judge comments on the facts, however, he or she must make it clear that the jury can disregard those comments. [87]
279 The comments about which particular complaint is made occurred when the trial judge was summarising for the jury the facts of the case. Each of the comments made by the trial judge must be considered in the context of the charge as a whole.
280 The words complained of occurred in the following passage:
[T]he law is concerned about whether a person is in a position to determine how shares would be held, purchased or sold and how shares would be voted at meetings, did Mr Smith have the power to deal with the shares in that way given that the shares of course were held by the trustee?
In relation to the case against him, obviously, that is an issue in this trial and I will come to that again shortly. As was pointed out, I think, at the beginning of the trial, you might think it would be simple for a person who wished to give an appearance of being separated from shares to place them in a discretionary trust and say that he is only the beneficiary of the trust and that the person who can make decisions about the shares is the trustee, not me, and I do not have any interest in the shares.
The law requires that that would be an undesirable situation and there are provisions in the statutes, the effect of which is that even though there is a trust, the question is whether the trustee invariably seeks and acts in accordance with the wishes of another person. That is the alleged situation to have existed here. Of course you know it is hotly disputed by Mr Smith but it is alleged that the trustee of the Gold Coast Trust that Mr Smith used invariably acted in accordance with Mr Smith's wishes and that, therefore, according to the prosecution, Mr Smith had the relevant power in respect of the Welcome Stranger Mining and Hallmark shares held by the trust and this gave rise to obligations he is alleged not to have met. (Emphasis added)
281 The primary complaint made about this passage is that the trial judge effectively endorsed the prosecutor's contention.
282 The prosecution case against the appellant Smith was that the directors of the trustee of the Gold Coast Trust were accustomed to acting on the wishes of the appellant Smith, with the result that, by virtue of the operation of s 32 of the Corporations Law the appellant Smith had a deemed 'relevant interest'. A very live issue at trial was whether the appellant Smith gave advice to the trustees in relation to the investment of the trust's property in various securities. The complaint is that the trial judge was suggesting to the jury that the appellant Smith adopted the simple procedure of giving the appearance of being separated from certain securities by placing them in a discretionary trust and claiming that he was only a beneficiary of that trust, not the person who could make any decisions about the property of the trust.
283 The appellant Smith did not give evidence at trial, but his case advanced through cross-examination of witnesses was that his interest in the discretionary trust was legitimate, not a relevant interest within the meaning of s 32 of the Corporations Law and any advice that he gave to the trustees was in his capacity as a paid adviser and not by way of instruction.
284 The contention made on behalf of the appellant Smith is that the comment of the trial judge was too strong and prejudicial to his interests. It is complained that it suggested that it was easy for him to hide his 'relevant interest' in shares by placing them in a discretionary trust in the way in which the prosecution contended that he had done.
285 The comment made by the trial judge affected the case against the appellant Smith. As Buss JA has pointed out at [159] - [160], it appeared to support the thrust of the prosecution case that the appellant Smith was not merely an adviser to Centurion Trust Company Ltd, trustee of the Gold Coast Trust, but somebody who was the ultimate beneficiary or controller of the shares in Welcome Stranger Mining NL (WSM) and Hallmark Gold NL (HLM), being shares in which the Gold Coast Trust had invested. I agree with Buss JA's observation at [161] that the point of difference between the two appellants in this respect is a point of form rather than substance. Although the comment related in terms only to the appellant Smith, it was also relevant to the case against the appellant Corp. He was alleged to have had a relevant interest in shares in WSM and HLM held by companies of which he was the beneficial owner.
286 The trial judge was entitled to make comment on the facts and, indeed, make strong comment (RPS [42]), but any comment made by him had to be accompanied by a clear direction that the jury was not bound to accept what he said.
287 The comment was one which favoured the prosecution's contention. Although the trial judge said that it was 'an issue in the trial', the jury might reasonably have thought that the trial judge was endorsing the prosecution contention.
288 The second comment complained of came very shortly after the first. It was a comment that had application to the cases against both appellants.
289 The context in which the comment was made was as follows:
You will recall some of these alleged offences relate to 1991. Probably you can safely assume those provisions or the gist of them applied at all relevant times in 1991 even. You will recall there was reference to decisions being made by a show of hands, that is, one vote, one hand, but that a poll could be called and the conducted and this would require counting of votes by reference to shares held and proxies received.
This procedure is consistent with time honoured law and practice in these things. You would appreciate that as a generalisation, given the human factors, it is unlikely all companies strictly follow their own rules and regulations on all occasions.
It might depend upon what is at stake, how many people there are at the meeting, how efficient their systems were, et cetera. Slackness and slipshod practices, you might think, can creep into any organisation. What happened at the meetings focused upon by this trial, that is, the meetings of Welcome Stranger and Hallmark Gold, needs to be assessed, I think, bearing those factors in mind. The prosecution asserts that the proxy votes were cast at the relevant meetings whatever strict procedural rules were followed or not.
The defence asserts there is no sufficient proof of that for you to be convinced beyond reasonable doubt, especially given no persons who attended the meetings were asked in or gave evidence in this case about those matters. (Emphasis added)
290 The appellants complain that a critical issue at trial was the way in which certain resolutions were voted at relevant meetings of Welcome Stranger and Hallmark Gold. A number of counts on the indictment went to this issue. It was an issue to be determined primarily by reference to available documentary material. No witnesses gave oral evidence about the circumstances in which voting occurred at the relevant meetings. A live issue was whether any poll had been called at relevant meetings.
291 Counsel for the appellants complain that there was no evidence at trial that there had been any failure on the part of the appellants to follow the proper requirements of the articles of association relating to general meetings of the relevant companies. The observations were said to undermine the case of the appellants by suggesting (in the absence of evidence) that within corporations 'slackness and slipshod practices' might mean that the proper requirements of meetings, laid down within the articles of association of the relevant companies, had not been followed.
292 In my opinion, there is substance in the contention of the appellants. There was no evidence about 'slackness and slipshod practices' in relation to the companies in question, or any companies. The observations appear to be the trial judge's idiosyncratic view of corporate life. In the absence of a clear direction to the jury that such comments were his, and his alone, and not to be taken as binding upon them in any way, they were dangerous.
293 The third comment complained of was made in the following context:
[I]f you did not find the accused person whose case you are considering had relevant interest in the shares allegedly held then no such disclosure was omitted from the document and, therefore, the document would not be misleading and the verdict must be not guilty.
If you do find an accused person had a relevant interest in the particular charge you are considering, as I have explained, and given it was obviously omitted from the document, you would then go on to consider whether he knew the document was misleading. If you find the accused had a relevant interest, you might have little difficulty - it's a matter for you - in drawing an inference in all of the circumstances that the accused knew the document was misleading because of the omission of mention of that relevant interest.
Obviously that initial finding is critical. If you don't make it: not guilty. If you do make that initial finding about relevant interest then you go on to consider other matters. (My emphasis).
294 The complaint made about this comment is that a critical element in proof of the prosecution case against the appellants was whether they knew that they had a relevant interest. The contention made on behalf of the appellant Smith is that, in this comment, the trial judge effectively foreclosed the question of the appellant Smith's knowledge. It is complained that he suggested that if it was proven that the appellant Smith had a relevant interest, the jury might have little difficulty in drawing an inference that the appellant Smith knew that in any declaration relating to the question of relevant interest his omission to mention the relevant interest constituted an offence.
295 Counsel for the appellant Smith raised this matter with the trial judge after the jury had retired for a break on the morning of 3 October 2007. Complaint was made about what had been said (although no complaint was made that the trial judge had failed to inform the jury that what he had said was his personal view and not one which was binding upon the jury). The trial judge accepted that there was a need to redirect the jury. He told them that the question was one which was in issue and that it was disputed by the appellant Smith not only that he had a relevant interest, but that he knew he had a relevant interest. The redirection was in the following terms:
With respect to Mr Smith, I said - and I think also the same with Mr Corp, but this is really particularly with respect to Mr Smith's case - I said to you that if you found that he did have a relevant interest, then it's a matter for you but you might pretty easily conclude that he knew that he had a relevant interest; that is, you can draw an inference fairly easily and I might have given the impression that it's not really a worry.
With respect to Mr Smith's case, that is also very much in dispute. Firstly, it is disputed that he had a relevant interest; it's disputed that if he did, that he knew he did. And I should emphasise that to you, so if you can apply that retrospectively to the comments that I have made to you about that matter.
296 Counsel for the appellant Smith contends that the redirection was entirely inadequate because the trial judge did not withdraw the comment that he had made, but simply pointed out that the matter was 'in issue'. In my opinion, there is substance in this complaint.
297 The comment had relevance to the appellant Corp, as the case against him alleged commission of the same offences in the same circumstances.
Conclusion on grounds 7 and 8 (Smith and ground 10 (Corp)
298 In my opinion, the trial judge failed to comply with a fundamental requirement of a criminal trial. He failed to tell the jury that any comment that he made on the facts was a matter of comment which they were free to accept or reject, and in no way was any such comment binding upon them.
299 The distinction between directions on law and matters of comment by a trial judge has been made clear in the cases. A jury is bound to follow directions on law, but is not bound to accept the judge's comment (RPS [42]).
300 In my opinion, the three comments complained of by counsel for the appellants were unfair to both appellants. The most serious of the three comments was that which related to so-called 'slackness and slipshod practices' which the trial judge considered might 'creep into any organisation'. There was no warrant for this comment. It seems to me that, in the circumstances of the case, it, in combination with the other two comments complained of, meant that the trial judge went too far in revealing his own views in relation to the case. There had been no warning that his views were views which the jury could accept or reject, and the problem was compounded. In Broadhurst, Lord Devlin put it this way:
In the present case no warning was given; and their Lordships consider also that, even had there been a warning, the Chief Justice went too far in revealing his views, so far that there was a danger of the jury being overawed by them. Their Lordships appreciate that the Chief Justice was anxious only to help the jury to take a true view of the case as he saw it, but unfortunately, in their Lordships' opinion, he saw it wrongly. (464)
301 These observations are apposite to the present case. In the absence of a warning, the comments made by the trial judge were dangerous for the appellants, particularly the appellant Smith.
See also Mears v The Queen (1993) 1 WLR 818, where Lord Lane, delivering the judgment of the Privy Council said:
Their Lordships realise that the judge's task in this type of trial [a murder trial] is never an easy one. He must of course remain impartial, but at the same time the evidence may point strongly to the guilt of the defendant; the judge may often feel that he has to supplement deficiencies in the performance of the prosecution or defence, in order to maintain a proper balance between the two sides in the adversarial proceedings. It is all too easy for a court thereafter to criticise a judge who may have fallen into error for this reason. However, if the system is trial by jury then the decision must be that of the jury and not of the judge using the jury as something akin to a vehicle for his own views. (822)
302 The trial judge did not here make the case 'a vehicle for his own views', but I consider that he stepped over the line of impartiality in making the observations that he did.
303 The comments went to all counts on the indictment of which the appellants were convicted. At the hearing of the appeal, counsel for the appellant Smith presented a schedule which showed the relevant counts affected by the three comments of the trial judge. In the case of Smith, they were as follows:
First comment: All counts, but especially counts 2B, 3B, 4B, 5B, 8B and 32B (Failing to act honestly in discharge of duties as a director).
Second comment: Counts 6, 9, 28, 29, 30 and 34 (Making a document misleading in a material particular).
Third comment: Counts 26 and 27 (Being a related party, permitting a vote to be cast so as to give a financial benefit).
304 In the case of appellant Corp, similar counts were affected. Because the case against the appellant Corp mirrored that against the appellant Smith, the comments were equally applicable to the offences with which he was charged. They were:
First comment: All counts, but especially counts 2A, 3A, 4A, 5A, 8A and 32A (Failing to act honestly in discharge of duties as a director).
Second comment: Counts 1, 7, 10, 11, 23, 31 and 33 (Making a document misleading in a material particular).
Third comment: Counts 24 and 25 (Being a related party, permitting a vote to be cast so as to give a financial benefit).
Did the error go to the root of the proceedings?
305 In my opinion, the failure of the trial judge to inform the jury that any comment made by him was something they could either accept or reject was such an error as to constitute a serious breach of the presuppositions of the trial process. As such, I consider it denied the application of the proviso: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46] and Criminal Appeals Act 2004 (WA) s 30(4). In the
circumstances of the case, it is impossible to assess the impact of the irregularity which occurred on the fairness of the trial (Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309 [46] (Kirby and Callinan JJ) (in dissent in the case, but not on the principles to be applied)).
306 Should it be necessary to consider whether s 30(4) of the Criminal Appeals Act should be applied, I would agree with Buss JA, for the reasons given at [168] - [169], that it should not. The nature of the error made by the trial judge was such that, in my opinion, there was a significant denial of procedural fairness (Libke per Kirby and Callinan JJ [46]), and the only possible outcome of the appeals is to quash the verdicts of conviction and order a new trial on counts, 6, 9, 26, 27, 28, 29, 30, 32B and 34 (Smith) and on counts 1, 7, 10, 11, 23, 24, 25, 31, 32A and 33 (Corp). By reason of the quashing of the verdicts of conviction and the substitution of verdicts of acquittal on counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B, there is no need to make any other orders in relation to those counts.
307 MURRAY AJA: In relation to these appeals I have had the great benefit of access in draft to the reasons published by Buss and Miller JJA. Those reasons relieve me of the need to do more than express shortly my views, particularly where I find myself in agreement with their Honours. As will be seen, in respect of one aspect of the case I have the misfortune to take a different view. In the end, even on the view I take, a minority view though that be, it would be unnecessary to deal with the appeals against sentence. I shall mention again, in due course, the particular reasons why that is so.
308 I shall deal with the matters at issue raised by the various grounds of appeal in the order in which they are discussed by Buss JA.
Amendment of the indictment and the failure to re-arraign
309 Mr Smith's ground 5 and Mr Corp's ground 4 raise the same point concerning the counts on the indictment which were originally 2, 3, 4, 5, 8 and 32. In the circumstances described by Buss JA, at the very end of the prosecution case the trial judge permitted amendment of the indictment in a manner which effectively split each of these counts into counts 2A, 3A, 4A, 5A, 8A and 32A against Mr Corp and the corresponding counts 2B, 3B, 4B, 5B, 8B and 32B against Mr Smith. The grounds assert that the failure to arraign the two appellants on those substituted counts constituted such an irregularity in the trial process as to make the trial of those counts 'a nullity'.
310 I think, however, that this is merely a point of criminal pleading. The original counts were bad because they were duplex. They did not each allege the commission of an offence by the two appellants acting jointly to commit the one offence. Each count alleged the commission of two offences, a breach by each of the appellants of his duty to act honestly in the exercise of his powers and the discharge of his duties as directors of the companies in question. The substitution of the new counts simply split those allegations apart, but otherwise added nothing in the way of the issues before the jury.
311 The course taken at trial is, in my view, authorised by the Criminal Procedure Act 2004 (WA), s 132, specifically by s 132(5), which provides for the amendment, not of a charge, but of an indictment, effectively by deleting the charge which is not permitted, as these were not permitted because they were duplex, and substituting separate charges. There was no reason under s 132(10) for the court to refuse to amend the indictment because there was no suggestion that an adjournment was required, that the amendment was material to the merits of the case or that the amendment would in any way prejudice the defence of either accused person; nor was an adjournment required upon making the amendment, under s 132(8) or s 132(9).
312 As to the suggestion that the trial was rendered a nullity by the failure to re-arraign the appellants on the new charges, I note that no such course was sought at trial and there was therefore no debate about the necessity to take such a course. In the latest pronouncement of the High Court on the topic, Ayles v The Queen [2008] HCA 6; (2008) 82 ALJR 502, at 519 [83] Kiefel J, with the apparent agreement of other members of the court, took the pragmatic view that re-arraignment will be required where the circumstances suggest that it is necessary because of its significance in the context of the trial.
313 One example of that which immediately springs to mind would be where an offence was added by a pleading which expressed that charge in the alternative to one already contained in the indictment. Clearly in those circumstances there ought to be re-arraignment so that the issue is joined in respect of the alternative charge, or the accused is offered the opportunity to plead to it and thereby to dispose of the original charge. Here, however, the issue had been joined by the pleas of not guilty originally made by each appellant. In my opinion, procedurally in this regard there was no error at the trial, even of a technical kind.
314 Mr Smith's ground 9 and Mr Corp's ground 5 raise the same point in respect of counts of which they were convicted, either of dishonesty in the discharge of their duties as directors, supported by the particulars given in relation to those charges, or, in respect of counts 24, 25, 26 and 27, of the contravention of s 243ZF of the Corporations Law by the casting of votes on behalf of the particular appellant at a general meeting of the company in question in circumstances which would permit a financial benefit to be given to the appellant. The breach of duty offences arose out of precisely the same conduct. The factual circumstances concerning the charges of breach of the duty to act honestly in the exercise of their duties as directors, and permitting a vote to be cast where the accused would benefit from that, are the same and have been completely canvassed by Buss JA.
315 It is material therefore to all of these charges to note the terms of s 243ZF(1) of the Corporations Law which provides that at a general meeting, 'a vote on a proposed resolution ... must not be cast (in any capacity) by or on behalf of (a) a related party of the public company to whom the resolution would permit a financial benefit to be given'.
316 As has been seen, here the allegation was that the votes impugned were cast by proxy on behalf of corporate entities related to the public companies to which the resolutions would permit a financial benefit to be given and that, under s 32 of the Corporations Law, Smith and Corp were persons deemed, in relation to the shares so voted, to have the same power as the relevant corporations had in relation to the casting of the votes because those corporations or their directors were accustomed, under informal obligations, to act in accordance with the directions, instructions or wishes of the appellants.
317 Under s 243ZB of the Corporations Law there were various requirements in relation to recording the votes of those members who voted on resolutions both in person and by proxy, the latter mode of voting arising if a poll was called.
318 Consistently with those provisions, cl 12 of the articles of association of the companies in question provided procedures for voting in person or by proxy. In person voting was by a show of hands, one vote per shareholder present. Voting by proxy occurred on a poll, in which case there was one vote per share, if a poll was demanded.
319 I have nothing to add to the views expressed by Buss JA in relation to the evidence in this case. It is clear that proxies were obtained. They were provided in a timely manner and held against the need to use them to secure the passage of the special resolutions at issue in the case. Of enormous significance was the evidence of Ms Sly which has been fully discussed by Buss JA. But neither her evidence nor that of Mr Ruane, also discussed by Buss JA, to the extent that that was probative in relation to the meetings the subject of the charges in question, showed what the voting procedure was in relation to the relevant resolutions. Ms Sly's evidence explained generally the votes that were available on a demand for a poll, both for and against the particular resolutions, but it did not establish that a poll was demanded or that the votes were cast, which, in my opinion, was the crucial and central issue in relation to all the charges identified.
320 In those circumstances, I respectfully agree with Buss JA that, except in those cases where the record of the meeting, the minutes, show that a poll was demanded, there is no evidence that the votes were cast.
321 As Buss JA notes, the prosecution case at trial referred to the proxies in question being 'taken into account' and that terminology was adopted by the trial judge in his directions, originally to the jury and upon a request for redirection when his Honour said that the prosecution was required to establish beyond reasonable doubt that the shares were voted at the relevant meetings in that they were 'taken into account in determining whether the resolution was passed'.
322 I agree that that was insufficient to meet the requirements of the law and the way in which the prosecution framed its case that there had been a failure to comply with the duties imposed on the appellants as directors. It was a misdirection because it suggested to the jury that the relevant breach of duty could be established beyond reasonable doubt and the contravention of s 243ZF could be established merely on the ground the proxies were 'taken into account'.
323 That might mean merely that the voters upon a show of hands might be influenced to vote in a particular way by the fact that, if necessary, the chairman of the meeting could call for a poll, in which case proxies sufficient to secure the passage of the resolution were held and would be voted.
324 In the result, I agree that these grounds succeed in relation to the offences which were counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B. However, the fatal error in relation to those counts was, as Buss JA has explained, not present to adversely affect the jury's verdicts in relation to counts 24, 25, 26 and 27. On these grounds of appeal I would not disturb those convictions.
Comments on the facts by the trial judge: did a miscarriage of justice occur?
325 Grounds 7 and 8 raised by Mr Smith and Mr Corp's ground 10 all raise complaints that a miscarriage of justice arose out of comments adverse to the cases of the appellants made by the trial judge during the course of his summing up to the jury. I note that Mr Corp's ground 10 does not complain that a miscarriage of justice arose out of the adverse comments in themselves, but out of the fact that the trial judge, it is alleged, erred by failing to advise the jury or to make sufficiently clear to them that the views expressed by the trial judge when commenting on the facts were simply comments designed to assist, but did not bind the jury or relieve them of the obligation to form their own views about the facts to be found, upon the evidence they accepted. On the other hand, although Mr Smith's ground 7 makes that complaint, ground 8 focuses on particular comments and raises the contention that they caused a miscarriage in themselves because they were 'adverse to the fair trial' of the appellant.
326 I may say at the outset that, as will appear, I do not think that ground may have merit and I will focus attention upon the question whether the comments by the trial judge shall be held to have occasioned a miscarriage of justice because they may have confused the jury as to the respective roles of the trial judge and the jury and because the directions failed to make that clear generally and in respect of the particular comments upon which the grounds focus attention.
327 The law is clear. The starting point is s 112 of the Criminal Procedure Act 2004 (WA) which is in the following terms:
After addresses have been made in accordance with section 145 and before the jury retires to consider its verdict, the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice.
328 The observations made about the evidence should be those required in the interests of justice in the particular case being dealt with by the trial judge. Those observations may, in themselves, involve directions of law which will be binding upon the jury, eg, as to how a particular body of evidence is to be approached, as to how the jury may reason in respect of it, as to the dangers that may be perceived to be inherent in the evidence which the jury, unguided by directions of the judge, may not appreciate.
329 So it may be the case that in dealing with a particular question of fact or body of evidence the trial judge may both give warnings or directions of law and make comments on the evidence. Where that occurs it will usually be imperative that at that time the trial judge should make clear to the jury where in relation to those observations the essential division of functions falls; where the judge is giving directions of law which the jury must accept and follow, and where, on the other hand, a mere comment is made which may be ignored by the jury in performing their essential task of deciding the facts.
330 There are many cases which make the essential point that a miscarriage of justice will arise where the trial judge fails to make clear to the jury the essential division of function between the judge laying down the law applicable to the case in directions which the jury must accept, and the jury applying that law to the evidence to decide what are the facts. A number of the relevant authorities have been cited by Buss and Miller JJA. Particularly in those cases where, in relation to a body of evidence, the observations of the judge involve both directions of law and comments on the evidence, it will generally be necessary at that time for the judge to make clear to the jury which of the observations involve directions of law and which are comments which may be ignored.
331 The case of Mahmood v Western Australia [2008] HCA 1; (2008) 82 ALJR 372 is an example of such a case, although there the case turned on the failure of the trial judge to make clear in relation to a particular body of evidence that she was doing more than merely comment upon the evidence and the arguments presented by counsel and was in truth making an observation in the nature of a direction, a warning which the law would require the jury to follow. The judge erred because her Honour's observations were couched in terms which may have wrongly conveyed to the jury that they were mere comments which could be ignored. The error was an error of law falling within s 30(3)(b) of the Criminal Appeals Act and the case was remitted to the Court of Appeal of this State to determine whether, pursuant to s 30(4), the appeal should be dismissed on the ground that no substantial miscarriage of justice had occurred.
332 In my opinion, in relation to the comments at issue, no such problem arose in this case. The comments or observations were not of a kind which involved the need to carefully distinguish between that part of the observations which constituted a direction which the jury were obliged to follow and that part which was a comment upon the evidence which the jury might ignore. This was a case therefore, in my view, where all that was required in charging the jury was that the judge should make clear that the facts were for their decision solely, and that whatever submissions, arguments and observations were made by the trial judge, and indeed anybody else in addressing them, it was the jury which bore the sole obligation to decide the facts in the context of the directions of law that they were given.
333 Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 was a case which concerned a trial, coincidentally before the same trial judge as in this case, and a jury. The case concerned observations by the trial judge in charging the jury as to the weight they might attach to exculpatory assertions made by the appellant out of court. The observations were held to involve no error, viewed as an observation about the weight which the jury might place upon the evidentiary material in question.
334 The High Court stated the general rule by reference to the then applicable precursor to s 112 of the Criminal Procedure Act, the Criminal Code (WA), s 638. At 1575 [6] their Honours said:
That provision distinguished between instructions as to the law applicable to the case, which were mandatory, and observations upon the evidence, which were discretionary. The discretion, of course, was to be exercised in accordance with established principles. One of those principles is that observations upon the evidence must be fair and balanced, but a judge is not prohibited from making an observation which is favourable to one side or the other if it is made clear that it is for the jury, and the jury alone, to decide the facts. Trial judges commonly make observations, sometimes forcefully, about the strength or weakness of particular aspects of the evidence in a case, but they should also make it clear that those observations are not intended to bind the jury, that the jury may or may not agree with them, and that the jurors are the sole judges of all factual issues bearing upon the ultimate verdict.
335 In that case the trial judge had given the jury general instructions by way of an introductory statement at the commencement of the trial. At that time he told the jury that at the end of the case it would be his job to sum up the law, to tell the jury what the law was and give them instructions in that regard which they must apply. He told the jury that they also were judges, but it was for them to judge the facts and decide what the facts were. His Honour concluded:
It's entirely up to you what you make of the facts and what facts you decide exist in the case, so we are each judges but in different areas.
It could scarcely have been made more clear that the jurors were the sole judges of the facts, to the exclusion of the trial judge.
337 In the course of the summing up, before reminding the jury of the arguments of opposing counsel, the trial judge reminded them about what he had said at the commencement of the trial, that:
... it's entirely up to you what you make of the facts. It's entirely up to you how you view the evidence. The findings that you make about the facts are entirely your business and each of the counsel has put a point of view to you that you can entirely accept or not.
338 This was a long trial. The jury were empanelled on 6 August 2007. They were then excused and not required to attend the trial again until 13 August. Again his Honour made some opening remarks before inviting the prosecutor to give an opening address. Relative to the points at issue in these grounds, his Honour said:
... we are both judges in a sense. I am the judge of the law and it is my job to ensure that the trial is a fair trial during the running of it, a bit like acting like a referee or an umpire, and then to tell you what the law is at the end of the trial. You are the judges of the facts. So you are the facts, I am the law. As a group you are the judges of the facts and our areas of responsibility are very different obviously (t 1446).
339 His Honour went on to tell the jury that if during the trial they were excluded from the courtroom while proceedings continued, they could assume that matters of law were being discussed and resolved, matters which were not their concern but the concern of the judge because, 'your job is big enough as it is, dealing with the facts and the evidence without worrying about the law ...' His Honour then made some observations about the trial process, in the course of which he said that the jury were concerned with the evidence which came before him and what the lawyers involved in the case said was not evidence. That was a theme taken up by senior counsel prosecuting when he made his opening address (t 1455) in observations which would no doubt have served to reinforce the remarks made by the trial judge as to the general division of responsibility for the decision of the case between judge and jury.
340 The argument before us focused attention upon three comments during the course of the trial judge's summing up. This was commenced on the afternoon of Friday 28 September 2007, immediately following the last of counsel's addresses. On that afternoon his Honour's summing up was limited to general matters. In the course of his observations the judge returned to the theme that he was the judge of the law and the jury were the judges of the facts. As his Honour put it, 'you have heard all of the evidence and done your best to listen to it and follow it, and it is up to you what you make of what you have heard and seen in this trial.' His Honour referred to the arguments of counsel and expressly told the jury:
... each of the lawyers has, as is their responsibility, urged you to take a particular view of things, to look at the facts from their point of view and you can either accept that or not, but what you need to realise is that you don't have to agree with what has been put to you. It is a matter for you because you are the sole judges of the facts (t 3259).
After such introductory observations, the trial was adjourned for the weekend.
341 It resumed on Monday 2 October 2007. His Honour commenced his address by reminding the jury what had been said on the Friday. He did not specifically refer to this issue again, although in commenting about matters of evidence, from time to time his Honour would use the phrase, 'it's a matter for you' when talking about the facts which would need to be found.
342 In my view, although his Honour's observations might have been usefully expressed at greater length, the essential instruction that the jury were bound to accept his directions in relation to matters of law, but the decision of the facts was exclusively their province, in relation to which they were not bound to accept anyone else's views, made appropriately clear the essential division of responsibility. In my opinion, in those circumstances, if these grounds are to succeed it must be because the particular comments of which complaint is made were couched in terms which may have confused the jury into thinking that they were bound to accept the observations made by the judge, effectively as directions of law.
343 The first comment at which criticism is levelled was that a person who wished to give an appearance of being separated from shares might place them in a discretionary trust and say that the person is only a beneficiary of the trust, not the trustee, who can make decisions about the shares; and therefore that person has no interest in the shares (t 3292). This observation referred to a submission made both in opening and closing addresses by prosecuting counsel. The judge said, 'As was pointed out, I think, at the beginning of the trial, [by senior counsel prosecuting] you might think it would be simple ... '.
344 I would make two observations. What was said was not couched in terms of a firm view held by the trial judge, but was more a reference to what had been put in argument by counsel. Secondly, it was a clear comment on matters of evidence involving no legal content and must therefore, in my view, have been understood by the jury as being an argument to be evaluated by them. If the jury considered the judge was telling them what he thought about the evidence, they cannot, I think, have been confused into thinking that they were obliged to adopt that view themselves, having regard to the general directions they had been given.
345 The second comment which is criticised concerned an argument between the parties in relation to the evidence relied upon by the prosecution to establish that the proxies were voted, at least to the extent that they were taken into account at the relevant general meetings because, the prosecution asserted, properly understood, that was the only reasonable inference to be drawn from the way in which the minutes were expressed. On the other hand, defence counsel argued that although the articles of association laid down a procedure to be followed when a vote was to be taken, not by a show of hands but by calling a poll and counting the votes, including those recorded by proxy which attached to the shares held, it should not be assumed that because the minutes appeared to be written consistently with voting on a poll that that was in fact what had occurred.
346 The trial judge commented upon these arguments and the procedures laid down in the memorandum and articles of association before saying:
You would appreciate that as a generalisation, given the human factors, it is unlikely all companies strictly follow their rules and regulations on all occasions. It might depend upon what is at stake, how many people there are at the meeting, how efficient their systems were, etcetera. Slackness and slipshod practices, you might think, can creep into any organisation. What happened at the meetings focused upon by this trial, that is, the meetings of Welcome Stranger and Hallmark Gold, needs to be assessed, I think, bearing those factors in mind. The prosecution asserts that the proxy votes were cast at the relevant meetings, whatever strict procedural rules were followed, or not. The defence asserts there is no sufficient proof of that for you to be convinced beyond reasonable doubt, especially given no persons who attended the meetings were asked in or gave evidence in this case about those matters (t 3293 - 3294).
347 Much of this seems to me to be no more than a reference to the opposing arguments of counsel, although no doubt to say that the jury's decision about what in fact happened at the relevant meetings was to be made against the background of the arguments presented by the defence, expresses a view by the trial judge about the fact-finding process. But I can see nothing in the remark made which is adverse to the appellants or in any way would leave the jury with the impression that their decision-making was foreclosed by the view expressed by the judge. In any event, it is clear that the jury must have relied upon what the relevant minutes showed as to the votes cast, albeit in the context of what I agree should be held by this court to be a misdirection as to what was required to be established to show that the votes submitted by proxy were cast.
348 As to that I should not leave this matter of complaint without referring to questions asked by the jury during the course of their retirement on 4 October 2007 (t 3444 - 3445). They asked firstly in relation to the charges relevant to this issue:
Subject to us finding that an accused had a relevant interest in the shares, is it open to us to reach a guilty verdict without us being satisfied beyond reasonable doubt that the shares, or at least some of them in each instance, were actually voted at the meeting in question?
The trial judge said that the answer to that was no. He continued reading the question:
That is, does the act required 'to have been done by the accused' have to extend beyond procuring the completed proxy voting forms, allowing them to be listed and counted for the purpose of tabling them at the meeting and allowing them to be tabled?
It is worth again setting out the answer given by the trial judge:
The answer to that is 'yes'. The shares represented by the proxy forms: you need to consider whether you are satisfied beyond reasonable doubt that the shares represented by the proxy forms under consideration were voted; that is, taken into account in determining whether the resolution was passed.
349 The purpose of referring to that again is not to again refer to what seems to me to be the fatal error in stating the legal framework in which the relevant charges were to be decided, but because the questions make it clear that the jury were firmly seized of the fact-finding process in relation to the issue about what occurred in the way of voting the shares at the general meetings in question.
350 Finally in support of these grounds, the appellants raise a comment made by the trial judge in the course of discussing with the jury the elements of those charges, of which there were a number against each appellant, which alleged that in documents of an official character they omitted to disclose their relevant interest in shares, without which disclosure the documents were, to the knowledge of the appellants, misleading in a material respect.
351 In the course of that discussion the trial judge said:
Obviously, if you did not find the accused person whose case you are considering had a relevant interest in the shares allegedly held, then no such disclosure was omitted from the document and, therefore, the document would not be misleading and the verdict must be not guilty. If you do find an accused person had a relevant interest in the particular charge you are considering, as I have explained, and given it was obviously omitted from the document, you would then go on to consider whether he knew the document was misleading. If you find the accused had a relevant interest, you might have little difficulty - it's a matter for you - in drawing an inference in all of the circumstances that the accused knew the document was misleading because of the omission of mention of that relevant interest. Obviously that initial finding is critical. If you don't make it: not guilty. If you do make that initial finding about relevant interest then you go on to consider other matters.
352 I can see nothing wrong with this. A comment is made, but it is made by reference to what the jury might consider to be the case and there is reinforcement of the proposition that it was a matter for them. The way in which the discussion by the trial judge is couched makes it abundantly clear, in my respectful opinion, that the jury was to decide the issue and find the facts unfettered by the observation or comment made by the trial judge.
353 Shortly after this was said, the jury retired for their morning tea break. As soon as they did so, senior counsel for Mr Smith (who did not appear before us) objected to the comment. Counsel intemperately described the comment as 'outrageous'. Counsel then compounded the impropriety by saying, 'I say that, your Honour, because I mean it.' Counsel later withdrew that observation.
354 When the jury returned to the courtroom and the trial judge resumed his charge, he reminded the jury that the question of what knowledge it might be inferred was possessed by the particular appellant whose case was under consideration was very much in dispute. Speaking about Mr Smith, the judge said, 'Firstly, it is disputed that he had a relevant interest; it's disputed that if he did, that he knew he did.' Again, in my opinion, those further observations, although unnecessary, were calculated to reinforce in the mind of the jury that it was their task to determine this issue of fact and they were not bound by any observation made by the trial judge to the effect that, 'you can draw an inference fairly easily, and I might have given the impression that it's not really a worry'.
355 In the final analysis then, in my respectful opinion, these grounds of appeal should not be upheld. The trial judge gave general instruction as to the division of function between judge and jury. He told the jury, in general terms, that the decision of the facts was exclusively their province. He contrasted that observation with the instructions that in relation to matters of law the jury were bound to accept the judge's direction. The clear implication was, in my view, that in relation to matters of fact they were not so bound, and the judge told the jury they were not bound to accept the arguments of counsel.
356 There was in my opinion at that point no misdirection which might have caused the jury to think that in relation to any part of the fact-finding process they were bound to accept and act upon observations by the trial judge. Nor was any such thing conveyed to them in relation to the matters of which specific complaint is made. To the extent that they amounted to comments by the trial judge it was clear that they were no more than comments which left within the province and obligation of the jury the decision of the relevant facts. There was, in my view, no blurring of the lines of demarcation and no miscarriage of justice is established in the context of these grounds. It follows that I have no need to consider the application of the proviso, pursuant to s 30(4) of the Criminal Appeals Act, and no need to consider whether a retrial should be ordered in relation to the affected counts.
The remaining grounds of appeal against conviction
357 As to the discussion by Buss JA of the remaining grounds of appeal against conviction, I need only say that I respectfully agree with his Honour's conclusion for the reasons he gives, that none of these grounds are made out. In the result, I would only grant leave to appeal in relation to ground 9 advanced by Mr Smith and ground 5 advanced by Mr Corp. I would allow the appeal in relation to those grounds and I agree that in the circumstances the convictions of the offences in counts 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 8A and 8B should be set aside. In lieu thereof, I too would enter judgments of acquittal of those offences rather than ordering a retrial.
358 In Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, the question was the directions required when persons who were potential witnesses were not called. Upon the High Court appeal, the question arose whether it was appropriate to order a new trial. Kirby J dissented upon that issue, but, usefully, at 314 - 315 [82] - [83] his Honour referred to a number of considerations generally accepted as being upon the question when a new trial should be ordered when a guilty verdict has been set aside and a conviction quashed.
359 I have had regard to that discussion and consider that, of particular relevance in this case in relation to the convictions which I agree should be quashed, are the facts that on the view which this court takes, the evidence at trial in relation to the casting of the proxy votes in respect of the counts in question could not, as a matter of law, prove the offences charged. In my view, that evidence could not establish that the votes were cast and that was the whole basis of the prosecution case.
360 At least to some extent, Mr Ruane having been called, evidence might have been led of what actually occurred at one of the meetings in question, and on a retrial it might be the case that other evidence would be available from persons who were present at the time. But if that evidence were to be adduced, it would be to support a prosecution case that the votes were actually cast rather than that they were simply taken into account because the proxy votes had been gathered and were available. Such a situation would, in my view, be tantamount to giving the prosecution an opportunity to supplement a defective case by presenting a case which was not that presented at trial. Having regard to those considerations, in my view it would not be proper that a new trial should be ordered, hence my conclusion that in lieu of the convictions set aside, judgments of acquittal should be entered.
361 I would otherwise not interfere with the judgments of conviction recorded upon the verdicts of the jury.
362 I agree that on the view in relation to conviction taken by the majority, and having regard to the fact that their Honours would order a retrial in relation to each of the counts other than those mentioned above, of which originally each appellant was convicted, it is both unnecessary and undesirable that the appeals against sentence should be considered.
363 It would, however, have been necessary, if the final judgment of the court was as I propose, for those appeals to be considered and I think it would not simply be the case that the court would be obliged to consider whether the sentences for the remaining offences should be varied pursuant to s 30(6) of the Criminal Appeals Act. The trial judge adopted a complex sentencing structure, dating from 11 October 2007, involving partial accumulation of the sentences imposed for groups of like offences. The result for each of the appellants was an aggregate term of 3 years imprisonment dating from 11 October 2007, with a recognisance release order being available to be entered into on 2 February 2009. In the circumstances, I need express no view about the sentences imposed or the structure of the sentencing overall. Having regard to the orders to be made as a consequence of the view expressed by the majority in relation to conviction, I would suggest that the appeals against sentence should be dismissed.
(2001) 205 CLR 50
(2002) 210 CLR 285
(1993) 178 CLR 193
(1971) 126 CLR 28
(1937) 59 CLR 467
(1990) 19 NSWLR 91
(2000) 199 CLR 620
(1990) 170 CLR 573
(1990) 19 NSWLR 656
(2001) 3 VR 9
(1994) 181 CLR 487
(1987) 163 CLR 221
(2005) 79 ALJR 1573
(1988) 17 NSWLR 395
(1983) 152 CLR 657
(1988) 164 CLR 365
(2000) 200 CLR 234
(1965) 39 ALJR 76
(2008) 82 ALJR 502
(1988) 165 CLR 314
(2000) 206 CLR 261
(1998) 197 CLR 250
(2007) 82 ALJR 149
(1997) 191 CLR 439
(2007) 81 ALJR 1309
(1989) 168 CLR 79
(2008) 82 ALJR 372
(2002) 213 CLR 606
(1989) 18 NSWLR 74
(1974) 131 CLR 510
(2005) 224 CLR 300