The learned judge's finding that it was not proved that the appellant was indigent was challenged on the appeal. The only evidence, however, placed before the judge was that of the appellant and that was not accepted. There was no basis for a finding that the appellant lacked the means to fund his trial. It follows that there was no basis for a finding that the appellant was unable to obtain legal representation. Mr Wells QC complained that the judge confused the issues of indigence and fault. But they were intertwined. The failure of the appellant to call evidence from the financiers and to authorize Legal Services Commission to obtain information from them reinforced the judge's misgivings about the appellant's credibility.

To the extent that the appellant's ability to obtain legal representation depended upon legal aid, it was necessary for him to prove that his inability to obtain legal aid was without fault on his part. The learned judge found that it was not proved that the inability was without fault because it was not proved that he had complied with the reasonable requirements of the Commission. Mr Wells QC for the appellant contended that that was not sufficient to constitute fault in the relevant sense. He contended that to amount to relevant fault the appellant's conduct would have to go so far as to indicate that he did not really desire representation.

Mr Wells' contention cannot, in my view, be sustained. A person may desire legal representation but be unwilling to take the necessary and proper means to obtain it. The basic reason why lack of representation may lead to a stay is that it may deprive the accused of a fair trial. A person cannot be said to be deprived of a fair trial by reason of lack of legal representation if he refuses to take reasonable steps which are necessary to obtain it. He thereby deprives himself of the opportunity to obtain legal assistance. His conduct must be regarded as fault in the relevant sense. An alternative way of looking at the matter, is that he is not really unable to obtain representation because he has unreasonably omitted to use the necessary means to obtain it.

I am satisfied that in order to discharge the onus of establishing that he was unable to obtain legal assistance and that that was not due to fault on his part, it was necessary for the appellant to prove that he had complied with all reasonable requirements of the Commission. That follows from the fact that the Commission is the instrument through which legal aid is dispensed in this State. It has the responsibility of protecting the public funds entrusted to it to provide legal aid to persons who are indigent in the relevant sense and of ensuring that they are used only for the purpose for which they are provided. A person who refuses or neglects to comply with the reasonable requirements of the Commission cannot be said to be unable to obtain legal assistance without fault on his part.

The requirements of the Commission in this case were entirely reasonable. The appellant, although bankrupt since 1981, was to all appearances actively engaged in business activities carried on by companies. While in receipt of legal aid, he became the transferee of a house the consideration for which was shown as $230,000. He executed mortgages to three financiers to secure loans to a total of $270,000. It was encumbent on the Commission to ascertain the full facts surrounding those transactions in order to satisfy itself as to the appellant's continued eligibility for legal aid. It was necessary to insist on full disclosure and on verification of the facts by access to the loan applications and supporting information. The apparent incongruity between the appellant's alleged indigence and his capacity to raise finance clearly called for investigation, and for a comparison of the information as to his means which he supplied to the financiers in support of his applications for finance and the information supplied to the Commission in support of his application for legal aid. The Commission's duty to protect public funds required no less.

The appellant's attempted justification of his stance, namely that he believed that an official of the Commission had undermined his ability to raise finance by inquiries from and a damaging statement to a financier, was said by the judge to be unconvincing. The Commission's letter quoted above denied any such activity and there was no evidence that it had occurred. I have the strong impression that the appellant was engaged in a spurious attempt to explain why he would not comply with the Commission's proper and reasonable requirement that he authorize it to inspect the material put before the financiers in support of the loan applications.

R v Dietrich supra has established that the opportunity of legal representation, irrespective of means, is a necessary incident of a fair trial on a charge of a serious offence. It is, however, the responsibility of an accused person to arrange his own legal representation. He is not deprived of a fair trial if the lack of legal representation is due to the accused's failure to take the appropriate measures to obtain legal representation. Those measures include utilization of his own financial resources or, if they are insufficient to fund the trial, taking the necessary steps to obtain legal aid. If legal aid is sought the accused must comply with the reasonable requirements of the legal aid authority. R v Dietrich should not be applied in a manner which would undermine the proper procedures of the Legal Services Commission for ensuring that it is not imposed upon and that it is provided with all necessary information and means of verifying it. In the end, of course, the decision as to whether it would be fair to force the accused to trial unrepresented is for the Court. If aid is refused for a trial of a charge of a serious offence on the ground of perceived lack of merit or of lack of funds available for legal aid, the Court may well stay the trial until legal representation is arranged. The Court may, if it sees fit, review the Commission's assessment of indigence. It may review and assess for itself the reasonableness of the Commission's requirements. Where, however, the reason for the lack of representation is the accused's refusal or neglect to comply with the reasonable and proper requirements of the Commission, he deprives himself of representation and to force him to trial unrepresented cannot be regarded as a denial of a fair trial.

Mr Wells argued that the application for a stay on Dietrich grounds miscarried because the appellant was obliged to submit to cross-examination in the belief that his evidence could be used against him at trial. The belief was said to have been confirmed by the trial judge. In fact, as the transcript shows, the judge merely indicated that any attempted use of the evidence would be subject to all proper objections as to admissibility and that such questions would be decided at the trial. This was the proper course.

Mr Wells also complained that the trial judge should have adjourned the application as the appellant requested to enable the appellant to obtain a report as to his means by an independent accountant. The history which I have recounted above, demonstrates that the appellant had had ample time to procure any report or evidence which he desired. The judge was right not to permit the trial to be further delayed.

In my opinion the appellant failed to bring himself within the Dietrich principle and his lack of legal representation did not in the circumstances warrant a stay of the proceedings or an adjournment of the trial.

Mr Wells contended that the trial was rendered unfair by reason of the appellant's ill health which hampered him in the conduct of his case.

The appellant was not in good physical condition. He suffered from hypertension caused or contributed to by his lifestyle and particularly excessive tobacco and alcohol intake. He also suffered from a condition known as "sleep apnoea" which causes interrupted sleep, excessive fatigue, headache and difficulty in concentrating.

When the trial judge delivered his ruling on the Dietrich application on 17th June 1993, Mr Abbott QC and Mr Kerin withdrew, having been briefed to appear only on that application. Thereafter the appellant conducted his various preliminary applications in person. When they had been disposed of and the trial was at length ready to start before the jury, Mr Lister, of counsel, appeared for the appellant to seek an adjournment of one month to enable the appellant to bring his hypertension under control. This was granted. At the resumption on 28th September, Mr Lister again appeared and sought a further adjournment. One ground of this application that there was some prospect of the appellant raising sufficient funds to enable him to be represented at trial. The judge rejected this ground as it did not appear that there was any immediate prospect of representation being arranged and the position as to representation had not materially changed. The second ground was the appellant's ill health. No medical evidence was called and it was not suggested that evidence was available to establish that the appellant's health would be seriously impaired by conducting his defence. There was no evidence that his health precluded him from conducting his defence. The learned judge properly rejected that ground also. An application to the Supreme Court for judicial review of the ruling was dismissed. The jury was finally empanelled and the prosecution's opening address begun on 30th September.

During the final address of counsel for the prosecution on 13th December the appellant sought an adjournment on the ground that he was vomiting blood. His general practitioner told counsel for the prosecution that the symptoms were consistent with a peptic ulcer and that a barium X-ray was required. Arrangements were made for that examination by the appellant's doctor under the supervision of a specialist engaged by the Director of Public Prosecutions. The appellant did not attend claiming that he had not received the written notification of the arrangements. The judge refused the adjournment and informed the appellant that he was at liberty to apply for adjournment on medical grounds at any time but that any such application would have to be supported by oral medical evidence.

The learned judge had the responsibility of holding a balance between difficulties created by the appellant's ill health and the interests of the community in ensuring that offenders are brought to justice. He was in the best position to judge the bona fides of the appellant and the extent of any impairment of his capacity to conduct his case. A perusal of the transcript shows that the appellant conducted his case with vigor and a considerable degree of skill. There is no apparent indication of being hampered by ill health.

Mr Wells argued that the combination of the complexity of the case, the lack of legal representation and the appellant's ill health, resulted in the trial miscarrying thereby depriving the appellant of a chance of acquittal which would have been fairly open to him. The case was undoubtedly complex, but I doubt whether the appellant's health impaired his performance. It was a complex trial and it was unfortunate that it had to proceed with the appellant unrepresented. If he had been unable to obtain legal representation through no fault on his part, I would not have hesitated in holding that he had not had a fair trial due to lack of representation. The appellant, however, deprived himself of representation by his own actions. The community is entitled to insist that a person accused of crime faces trial. An alleged offender cannot be permitted to escape trial by not taking the appropriate steps to obtain legal representation. The learned judge conducted the trial with exemplary patience and consciousness of his responsibility to the unrepresented accused. He afforded him every courtesy and assistance. He gave the appellant considerable latitude and significant indulgences. There was a "lay day" each sitting week to assist him and many of the sitting days were not full days. Regular adjournments were granted at the request of the appellant to give him time for reflection and preparation. The judge gave him helpful and appropriate advice as required. The trial was conducted with conspicuous fairness and consideration for the unrepresented accused. The trial judge did everything possible to ensure a fair trial despite the lack of representation. The only disabilities which the appellant suffered were those which he imposed on himself by depriving himself of the opportunity for legal representation. The trial was as fair as it could be in the circumstances created by the appellant's conduct. He has no justifiable complaint about the fairness of the trial.

The appellant, before the jury was empanelled, sought a permanent stay of the proceedings on the ground of delay, misuse of warrants and bad faith on the part of the prosecution. The learned judge, after many days of evidence and argument, dismissed the application.

Mr Wells' first argument on this issue was that the hearing miscarried because the judge should have disqualified himself. On 20th August the appellant in fact asked the judge to disqualify himself on the ground that a series of adverse rulings and the judge's assessment of the appellant's credibility had indicated bias. The judge declined to do so and gave written reasons. Mr Wells argued that the adverse view which the judge formed of the appellant's evidence on the Dietrich application required the judge to disqualify himself from hearing and determining the stay application. I think that that point is concluded against the appellant in this Court by the case of R v Hutchison (1993) 171 LSJS 364 applying R v Masters and Ors (1992) 26 NSWLR 450 esp at p472.

It is established that delay in bringing a prosecution is not of itself a ground for a stay; Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23. There must be other factors which would render the continuation of the proceedings unfair or oppressive. "The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial." Per Mason CJ at p33. Nothing has been put forward in the present case which could be regarded as rendering the trial unfair or oppressive by reason of such delay as there has been in investigating, initiating and prosecuting this case arising out of the involved affairs of Mr Hodby.

The appellant pursued with vigor the allegation that the prosecution was not brought in good faith but for an improper purpose. The hearing of the appellant's application commenced on 25th June 1993 and proceeded for 10 sitting days. The appellant gave evidence and called numerous witnesses. He was given every opportunity to formulate and present his case. As the hearing progressed the appellant's case became more confused. It consisted of vehement statements and allegations which were unsubstantiated and many of which were patently incapable of substantiation. At one stage, in order to endeavour to introduce some order and focus into the proceedings, the judge directed the appellant to formulate particulars of his allegations. Many of the particulars when furnished were so obviously in conflict with known facts or incapable of substantiation that the judge struck them out. The appellant never approached substantiation of his allegations against the Australian Securities Commission and the Director of Public Prosecutions.

On the appeal Mr Wells made the following submission. "The appellant's case was, therefore, that the prosecution was an abuse of process because: . the purpose of the prosecution was to protect the arrangement between the CAC and Hodby; . the long delay before the charge was laid was explained by the circumstances outlined above and was not only, therefore, unjustified, but prevented a fair trial because documents, including privileged documents, illegally seized under search warrant, were either in the hands of the prosecution, or no longer available to the appellant." Mr Wells submitted that the appellant had been prevented from presenting this case. It is by no means clear to me that that was the case which the appellant sought to present. I am satisfied that he was given every opportunity to present any reasonable case and was prevented only from abusing the processes of the Court by making wild allegations and compelling the attendance of witnesses for no legitimate forensic purpose.

Three incidents arose in the course of the trial which, in the submission of Mr Wells, should have led to a juror being excused or to the discharge of the jury, for apparent bias. The test to be applied in each case is whether the circumstances might create in the mind of a fair minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror or jury; Webb and Hay v R [1994] HCA 30; (1994) 122 ALR 41.

The first incident occurred on the second day of the trial. A juror sent the following note to the judge: "I have concerns with this trial. I work for a department that has had dealings with Mr Karounos in regards to industrial matters. I do not wish to jeopardize the trial and would like to discuss this matter." The juror was questioned by the judge in the absence of the jury. She said that she was employed by the Department of Labour. The following questions and answers then occurred. "Q. Are the dealings that you say that department has had with Mr Karounos such that you would find it difficult to discharge your duty as a juror in this trial. A. I think I might have trouble with that. I wasn't aware of this before. I apologise. Q. You don't need to apologise. Of course, jurors can't be aware of everything. We do our best to eliminate potentially difficult problems. What would the difficulty be because of your awareness of these dealings with Mr Karounos. Would you not be able to be unprejudiced in your approach to your task. A. I didn't really discuss the case. When the Plympton Park Centre came up, it is an area that my region deals with, and I just wanted to make sure whether any of the members at my work place were involved with any dealings with Mr Karounos. All I mentioned was Mr Karounos's name, and they told me that they had visited Plympton Park Centre for award matters. I didn't say any more, but they also brought in Mr Hodby, and it has concerned me whether I should be siting on this trial or not. Q. I understand your concern, and, quite correctly, you have raised the matter. Could I ask a question from another point of view. Is there any information that has come into your possession whilst working with the Department of Labour that relates to Mr Karounos and his dealings with the department. A. I didn't know about Mr Karounos beforehand. There is nothing that relates to this particular trial. Q. The information that has come to your possession, does that embarrass you as a juror who is expected to bring an unbiased, unprejudiced and open mind to their task as a member of the jury. A. I don't think it is as such, no. Q. Now being aware of these dealings and this contact between Mr Karounos and the department, you still feel that you can bring an open mind to your task as a juror. A. I think I could, yes." After discussion with counsel there were further questions and answers. "Q. I want to ask this question in a general sort of way. When people have expressed opinions about somebody else, they often fall into one of three categories: They said something adverse, positive, or they may have said something which is quite neutral. Turning your mind to those three sorts of categories, did these comments fall within one of those three categories. A. It wasn't neutral, and it wasn't a positive response.

Q. Are you telling me that these comments were critical of Mr Karounos. A. They said it in a joking manner, but they weren't like pointing the finger or anything, but it was in a joking manner that they were critical, yes. Q. You say that, despite those comments, you still feel that you can discharge your duty as a juror and bring an unprejudiced mind to your responsibilities. A. Yes, I do. Q. But, in doing so, you would have to put out of your mind, or put into the basket for rejection, any such critical comments that you have heard, is that what you are saying to me. A. Yes."

The appellant, after consideration, asked that the juror be excused. The learned judge decided to allow the juror to continue. He placed weight, no doubt based on his assessment of the juror, on her assurance that she could bring an unprejudiced mind to her responsibilities as a juror.

I think that courts should be slow to attribute to the reasonable observer an apprehension that a juror will be influenced by things heard outside the court. Jurors nowadays are free to lead their ordinary lives when not sitting in court. They are rarely locked up during a trial. They are exposed to media reports and to ordinary social intercourse. They will inevitably hear comments about the case and the persons involved. Such exposure may be minimized by the usual warnings to avoid discussing the case with persons other than fellow members of the jury, but it will often be impossible to avoid hearing some comment from family, friends and fellow workers. In most instances the reasonable observer would be prepared to accept that a juror will heed the directions to ignore anything seen or heard outside the court and to decide the case according to the evidence. Most jurors are sensible enough to realize that comments outside the court may not be soundly based and that the only safe guide is the evidence in the case. If juries or jurors were discharged every time a juror were sufficiently candid as to disclose that a comment had been made outside the court, few trials would be safe. I suspect that jurors simply ignore anything heard outside the court and do not report it.

The unusual feature of this incident is that the juror was sufficiently conscientious to report it. I get the impression from the transcript that she did so not because she doubted her own capacity to bring an impartial mind to bear, but because she feared that her continued presence on the jury might jeopardize the trial. There is considerable reassurance in her possession of such a highly developed sense of responsibility. The fair minded observer would take all those matters into account and would also be influenced by "the opinion of the judge - the person on the spot - that the juror would be able to approach the issues dispassionately" and "would assume that the juror would do her best to follow the judge's direction ..."; Webb and Hay v R supra per Mason CJ and McHugh J at p51. The learned judge gave the following direction: "You must weigh and consider the evidence without being affected by sympathy or prejudice. You should adopt a dispassionate view of the evidence, and you should decide the case on the evidence, and the evidence alone. You should put out of your minds anything that you may have seen or heard outside this courtroom. You should ignore anything that you may have heard by way of comment by members of your families, your friends, your acquaintances. You should apply the law to the facts in this case. You should decide the case on the evidence, and the evidence alone." I think that the judge's decision was correct.

During the course of the trial on 2nd December 1993, the appellant raised concerns about a juror by the name of Paul Thomas Haskett. He said that he understood that the juror's brother Peter was Deputy Director of the Legal Services Commission and that the juror's sister was employed by the Police Complaints Authority which considered a complaint by Barbara Hunt, the alleged co-conspirator, about police conduct with respect to this matter. He also said that among the victims of the Hodby frauds were a Ronald Sylvester Haskett who is a first cousin of the juror's father, and Margaret Jean Haskett his wife.

Peter Haskett attended on 3rd December in response to a subpoena issued by the appellant. He was represented by counsel. I quote two passages from the transcript of what his counsel told the judge. "In relation to the matters, I can briefly tell your Honour that, firstly, Mr Haskett is the deputy director of the Legal Services Commission; that he has had some involvement with the legal aid application of Mr Karounos, and the withdrawal of aid; that Mr Haskett's sister, Christine, was employed at the Police Complaints Authority, but is currently working and living in Sydney; that Mr Haskett's brother, Paul, is a serving member on the jury; and that, lastly, I am instructed that, while Mr Haskett does know of a Mrs Jean Haskett, he does not know to whom she is married, that is the name of the person to whom she is married, nor the relationship to him or to any other member of his family, and nor does he have any knowledge of any member of his family being a Hodby victim." ...... "My instructions are that some time in November, certainly after the Melbourne Cup day, which is the date by which my client can recall, a conversation with his brother took place casually, and the content of the conversation was to do with family arrangements for Christmas. In the course of that conversation, there might have been some discussion about whether or not Mr Haskett's brother would be available at Christmas time, and in the course of that conversation the length of this particular trial was mentioned. Other than that, my instructions are that at all times Mr Haskett has not discussed the trial, or the Karounos matter, at all, with anybody, including his brother, I mean outside the Legal Services Commission."

Peter Haskett was sworn to enable the appellant to ask questions. It emerged that the appellant had met a Jean Haskett at family reunions. He did not know whether she was identical with a Marguerite Jean Haskett, a Hodby victim.

Christine Haskett, the juror's sister was living and working in Sydney. The judge admitted an affidavit from her in which she deposed to a vague recollection that a Mrs Barbara Hunt made a complaint to the Police Complaints Authority and that she had no recollection of the date of the complaint, the name or names of the police officer or officers involved or of the substance of the allegations. She stated that she had never communicated anything to her brother Paul, the juror, about the complaint or complaints by Mrs Hunt.

Peter Haskett was bound by the prohibition against communication in s31a(2) of the Legal Services Commission Act. There were no grounds for supposing that he had acted in breach of that prohibition by communicating information about the appellant to his brother. Likewise there was no reason to suppose that Christine Haskett would have made any such communication and every reason to accept her sworn statement. The references to Hodby victims were so unsubstantial and so lacking in prejudicial capacity as not to warrant further inquiry. Matters of this kind arising during a trial have to be handled with prudence and delicacy to avoid any prejudice arising from the inquiries themselves. The judge wisely decided that there was insufficient substance in the concerns expressed by the appellant to justify questioning the juror. I think that the judge handled the matter wisely and that there were no grounds requiring that the juror be excused or the jury discharged.

On 9th October, a juror disclosed that she had been employed at the Torrensville branch of the National Bank and thought that the appellant may have been a customer. It transpired that she had vague recollection of the name Karta Pty Ltd but did not know whether she had met the appellant or had dealings with him. She had no knowledge of anything which would affect her ability to discharge her duties as a juror. The appellant made no application.

In my opinion no criticism could attach to the judge for the way in which he handled these matters. There was nothing in the facts and circumstances disclosed which could cause a fair minded observer to apprehend that the jurors concerned or the jury generally might not bring a fair and impartial judgment to the case.

The appellant seeks leave to appeal on a ground in respect of which leave was refused by a single judge, namely that the judge should have stayed the proceedings because leading counsel for the prosecution, Mr Simon Lane, declined to withdraw from the case.

The facts upon which reliance is placed are that Mr Lane was at relevant times Deputy Commissioner and Acting Commissioner for Corporate Affairs and as such responsible for and involved in the investigations undertaken by the Corporate Affairs Commission into the financial affairs of Mr Hodby and his companies and of the appellant and the companies with which he was associated. In that capacity he was responsible for and involved in civil litigation with the appellant, Mrs Hunt and their associated companies arising out of the operation of those companies and the investigation of them.

Mr Wells sought to apply the test which is applicable to the disqualification of a judge or juror, to the position of counsel for the prosecution. He contended that if a fair minded observer, knowing of Mr Lane's involvement, might reasonably apprehend that Mr Lane might not act, or have acted, consistently with his duties as counsel for the prosecution, the trial should have been stayed until Mr Lane withdrew. No authority was cited for such a novel proposition and I can see no warrant in principle for applying the test for judicial disqualification by analogy to prosecuting counsel.

The responsibilities of a judge or juror are different in kind from the responsibilities of prosecuting counsel. A criminal trial is an adversarial proceeding and prosecuting counsel is in an adversarial relationship with the accused. Prosecuting counsel is not expected to be free of partisanship in the same way as is a judge or juror. His partisanship should be tempered by his duty to act with fairness and detachment, to endeavour to establish the whole truth and to ensure that the trial is fair; Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 per Deane J at 663-4; R v Berens and Ors [1865] EngR 42; (1965) 176 ER 815. Nevertheless counsel's duty is to present the case for one side, namely the prosecution, in the adversarial contest, not to adjudicate impartially upon the issues between the parties.

Pre-trial involvement in the case should not disqualify a barrister from appearing as counsel for the prosecution at trial. It is entirely appropriate, for example, that legal officers on the staff of the Director of Public Prosecutions who have advised the police or other investigators during the investigation process, should appear as counsel at the trial. The same applies to independent counsel who have given such advice. It may be seen as an advantage in the case of complex cases for counsel who is to prosecute at trial to be involved at an early stage in advising, and indeed in supervising the process of investigation and securing of evidence. The role of prosecuting counsel is not compromised by such involvement because prosecuting counsel is not required to be free of suspicion of bias in the same way as a judge or juror.

The fair trial of an accused person may be prejudiced by the conduct of counsel for the prosecution to such an extent as to cause a miscarriage of justice; Richardson v R [1974] HCA 19; (1974) 3 ALR 115 at p120; Hall v US 419 Fed Rep (2d) 582; Boucher v The Queen (1955) 110 CCC 263. In this case Mr Lane had left the Corporate Affairs Commission and was practising at the Bar when he was briefed for the prosecution. No criticism was made of his conduct during the trial. On the contrary the transcript demonstrates that he conducted the prosecution with restraint and fairness and due respect for the difficulties of an unrepresented accused. No case has been made for impugning the judge's ruling on this point and no miscarriage of justice has resulted from Mr Lane's discharge of the role of prosecuting counsel. Leave to appeal on this ground should be refused.

Leave to appeal was also refused by the single judge on a ground which asserts that the jury should have been discharged when a bailiff improperly served a process unconnected with this case, on the appellant at the bar table in the present of the jury. The appellant seeks leave from this Court. Although on the bench, the judge was unaware of what had occurred. It is unlikely that the jury would have been more aware. In any event, there was nothing in the circumstances to indicate that the appellant could have suffered prejudice in the minds of the jury. Leave to appeal on this ground should be refused.

Mr Wells challenged the ruling whereby the learned trial judge permitted counsel for the prosecution a final address, the accused being unrepresented. Mr Lane addressed the jury at the conclusion of the evidence and the appellant then addressed the jury. Mr Wells contended that a final address by counsel for the prosecution where an accused person is unrepresented is contrary to the established practice in this State and he referred to R v Turner (1977) 16 SASR 444 at 445-6. He referred also to the Victorian cases of R v Ginies [1972] VicRp 43; (1972) VR 394 at 401 and R v Marijancevic [1982] VicRp 94; (1982) VR 936 at 939. That this was by no means an invariable practice is made clear by the High Court's judgment in Varley v R [1906] ArgusLawRp 84; (1976) 12 ALR 347 esp at pp350-51. Be that as it may, the position has been altered in this State by the enactment of Statutes Amendment (Right of Reply) Act 1992 which came into operation on 1st January 1993.

Prior to the enactment of that Act s288(2) of the Criminal Law Consolidation Act provided: "(2) If any accused person is defended by counsel, but not otherwise, it shall be the duty of the judge, at the close of the case for the prosecution, to ask the counsel for each accused so defended whether he or they intend to adduce evidence, and in the event of none of them thereupon announcing his intention to adduce evidence, the counsel for the prosecution shall be allowed to address the jury for a second time for the purpose of summing up the evidence." This subsection established the right of counsel for the prosecution to a final address notwithstanding that the accused did not call evidence, where the accused was represented by counsel. It made no provision for the case in which the accused was unrepresented whether or not the accused called evidence. The order of addresses was dealt with by subsection (4) and by section 20 of the Evidence Act, and was made to depend on whether the defence called evidence in addition to that of the accused.

These provisions were repealed by the Act which came into force on 1st January 1993 and a new section 288b was introduced into the Criminal Law Consolidation act as follows: "288b (1) At the conclusion of the evidence, the prosecutor and the defendant are entitled to address the Court on the evidence. (2) The address for the prosecution is to be made before any address for the defence." This new section, in my opinion, does two things. First it establishes a clear right to a final address by counsel for the prosecution irrespective of whether the accused is represented. Second, it fixes the order of addresses irrespective of whether the accused calls evidence.

Mr Wells argued that the section did no more than confer on the Court a discretion to permit a final address by the prosecution. If it did no more than that it would achieve no more than is established by Varley's case. The section confers in the plainest language an entitlement on the prosecutor. Mr Wells contended that there was sufficient ambiguity to justify the Court in looking at the second reading speech to identify the mischief which was aimed at. I find no ambiguity in the section. I have nevertheless looked at the second reading speech. There is some ambiguity in the speech but nothing to cast doubt upon the intention to confer on the prosecution a right to a final address.

Mr Wells contended that the trial was vitiated by a number of non-directions and misdirections.

He complained that the judge should have warned the jury against acting on any impressions they may have formed about the accused's character and demeanour through observing him in difficult and unnatural circumstances as a lay advocate in his own cause. I see no need for such a warning. A jury is entitled to make its own observations of an accused person in Court and to draw deductions from those observations. That is an inevitable part of the forensic process. It would be impossible and undesirable for juries to ignore what they see and hear in the courtroom. No doubt the fact that the appellant was conducting his own case increased the jury's opportunities for observation of him, but there is no reason why they should not take advantage of those opportunities. No particular direction was called for.

Mr Wells complained about the learned judge's directions as to the use the jury might make of what the appellant said when first approached by the police. The appellant said: "On the advice of my solicitor, I do not intend to answer any questions. I understand that, irrespective of what answers I give to your questions, it is your intention to lay charges against me and that you will not review that decision. I understand that the matters to which your questions relate are now over 43 months old and, notwithstanding that you have had ample opportunity to do so, at no time throughout those 43 months have you, or any other person, directed any questions or enquiries to me in respect of those matters. I, of course, deny any charges. I believe that the decision to charge me is politically and otherwise motivated, and that the laying of charges against me are an abuse of process. Accordingly I repeat, on the advice of my solicitor, I don't wish to answer any of your questions." The learned judge clearly directed the jury that the appellant in declining to answer questions was exercising a legal right and that no inference adverse to him was to be drawn from the exercise of that right. His Honor then went on: "However, the accused, according to Detective Sergeant Gibb's evidence, elected to make a statement, whilst at the same time indicating that he declined to answer any questions. You are entitled to draw whatever inferences are reasonably open from that response by way of statement that he made; for example, that he was seeking to divert the focus of the prosecution away from the real

issue of his guilt, that he was seeking (unreasonably) to adopt a policy of 'attack being the best form of defence' by suggesting political and other motives to the prosecuting authorities, or to adopt other diversionary tactics inconsistent with his innocence. So it is that I explain to you that it is the law that the mere refusal by an accused to answer police questions relating to the alleged commission of an offence, or to advance an innocent explanation of the circumstances which cast suspicion upon him, affords no basis for an inference of his guilt. But it is also the law that, if an accused does not exercise his right of silence in an unreserved fashion, and chooses to respond selectively to questions asked or allegations made (which was not the case here) or chooses (as was the case here) to make a statement at the same time as exercising his right to decline to answer questions, his conduct (and, specifically, what he does choose to say) is evidence to which you may have regard and from which, according to the circumstances as you find them to be on the evidence, an inference may be drawn that he had a consciousness of guilt."

In my opinion that was a proper direction. It did not in any way diminish the force of the direction that no adverse inference was to be drawn from silence. The appellant chose to go on the attack and make allegations which the jury might well have concluded to have been a smokescreen to conceal his guilt. Minds may differ as to what inference is to be drawn from his conduct but that was a matter for the jury. It was proper for the judge to direct them on the point; indeed it would have been difficult to refer intelligibly to the significance of his refusal to answer without also referring to the allegations which accompanied it and the jury's right to draw such inferences as it saw fit from the making of those allegations.

The learned trial judge gave the jury a lengthy direction as to what he described as "the co-conspirator's rule of evidence", permitting use against the accused of acts and declarations of co-conspirators outside his presence. He identified the evidence under consideration as follows: "The Crown says that there is reasonable evidence given by Mr Hodby which has the effect of bringing into play the co-conspirator's rule of evidence, which, as I explained to you yesterday, allows you to use against the accused, George Karounos, the otherwise inadmissible evidence of documents signed by Mrs Hunt, including the Campbell Park contract of sale and purchase (Exhibit P78) - which you may conclude, by a consideration of it, bears the signature of Mrs Hunt - the Campbell Park transfer (Exhibit P77B), and the Campbell Park mortgage (Exhibit P77A), the document which, according to the evidence of Mr Hodby in particular, was signed at 30 Chesser Street on 29 August 1986, each of those documents, according to the undisputed evidence, being signed by Barbara Hunt, or bearing her signature." His Honor told the jury that that evidence could be used against the accused only if there was other reasonable evidence of his complicity in the alleged conspiracy. He then directed them as follows: "I tell you, ladies and gentlemen, that there is reasonable and independent evidence (if you accept it as true and reliable) in the form of Mr Hodby's evidence of the so-called 'secret meetings' and in the form of the evidence of Mr Doubell, which provides some independent support for the evidence that Mr Hodby and the accused were together alone in the Gold Members' Room on the occasion of one of the alleged 'secret meetings'. There is further reasonable evidence in the form of Mr Hodby's evidence, supported, as that is, by the evidence of Mr McGlashan and Mr Opie, to a degree, evidence which is independent of the acts or statements of the alleged co-conspirator, Mrs Hunt, that the accused was present at the office in Chesser Street when various documents were executed, from which, in conjunction with the evidence of the alleged 'secret meetings', it could be inferred that the accused participated in the alleged conspiracy."

In the passage just quoted, the learned judge made the use of acts and declaration by others in furtherance of the conspiracy, against the accused depend upon the jury's acceptance of certain evidence. That was an incorrect direction. The question of admissibility was for the judge and not the jury. If the question arose as to the use against him of acts and declarations outside the appellant's presence, it was the judge's responsibility to decide whether a foundation had been laid of reasonable evidence, other than those acts and declarations, of the appellant's participation; Ahern v R [1988] HCA 39; (1988) 165 CLR 87. If that required some provisional assessment of the credibility of witnesses, it was the judge's responsibility to make that assessment.

I do not see, however, how the direction given could have operated to the detriment of the appellant. The notion of reasonable evidence could not, as Mr Wells suggested, confuse the jury as to onus of proof. The question of the reasonableness of the evidence was not left to the jury but only its acceptability. The judge directed that, if accepted, it amounted to reasonable evidence. The directions as to onus of proof of the charge were clear and emphatic and left no room for confusion.

The evidence to which the learned judge related "the co-conspirator's rule" was clearly admissible against the appellant. It was admissible as evidence of facts establishing the existence of the conspiracy and for that purpose did not depend upon the co-conspirator's rule; Ahern v R supra at p93. This was a case in which proof of the existence of the conspiracy necessarily proved the appellant's participation in it; Ahern v R supra at p94. The appellant and Hodby were the principal parties to the alleged conspiracy. If the appellant was not a participant, there was no conspiracy. The acts of Mrs Hunt to which the judge referred, are referable to proof of the existence of the conspiracy and its implementation, rather than the appellant's participation in it as a separate issue.

So far as the acts referred to might be thought to tend to prove the appellant's participation, as an issue apart from the existence of the conspiracy, they were clearly admissible against the appellant on that issue. The evidence which the judge told the jury amounted to reasonable evidence, if accepted, was uncontradicted and must inevitably have been accepted by the judge as amounting to reasonable evidence of the appellant's participation. The learned judge's mistake in leaving the question of the acceptability of that evidence to the jury could not have operated to the detriment of the appellant. The mistake therefore did not give rise to a miscarriage of justice.

Mr Wells complained of a remark in the course of the judge's reference to certain documents that "sometimes documents speak louder than words." There is no substance in that complaint.

The appellant, in the course of his cross-examination of Mr Hodby and in his final address made suggestions which were not substantiated by evidence. The appellant did not give evidence. It was therefore necessary for the learned judge to direct the jury that suggestions made in that way were not evidence. He did so in three passages in the summing up to which Mr Wells took exception. The first such passage is as follows: "The accused put to Mr Hodby in cross-examination that none of the things he had testified to having been said in relation to Exhibits P128 and P129, the letters that you looked at just a little while ago, were said. The accused suggested to Mr Hodby that his evidence appertaining to those letters was untrue. He suggested that Mr Hodby's evidence was false when he (Mr Hodby) had said in evidence in chief that he signed those letters, P128 and P129, in the presence of Mr Hunt, Mrs Karounos, Mr McGlashan and the accused.

Mr Hodby denied those suggestions. This leads me to tell you that there is no evidence before you from any witness either to support the suggestion put by the accused or to controvert the denials. You ought not to treat such suggestions as if they were evidence." The learned judge commented upon statements by the appellant in his final address that Hodby was lying about the alleged dishonest agreement and the meetings at which it was allegedly arrived at and the implication that no such agreement or meetings took place. He said: "I must tell you that there is no evidence to the effect that 'the secret meetings' did not take place, or to the effect that no agreement was reached. The prosecution evidence to the effect that they did take place, and that an agreement was reached, has simply not been contradicted or explained." He further said: "In so far as that assertion might suggest to you that there was some evidence to support an alternative scenario of the events said to have taken place in the Gold Members' Room during the two 'secret meetings' consistent with innocence, namely that such meetings were not held, that nothing was agreed, and that Mr Hodby was necessarily telling lies, I think, ladies and gentlemen, that the accused went further than he should have, because he was purporting to introduce new evidence in his Address to you. I tell you that the suggestion made by the accused in his Address to the effect that Mr Hodby was telling lies, in particular about the alleged 'secret meetings' and the agreement reached at the second 'secret meeting', is not evidence that the meetings did not take place, and that no agreement was reached. There was simply no evidence to the effect that the 'secret meetings' were not held, or to the effect that, to suggest that they were held and that an agreement was reached, was a lie. Mr Hodby's evidence, and that given by Mr Doubell, and that contained in the Domitix minutes (the Agenda) remains uncontradicted and unexplained." His Honor also commented on a submission to the jury by the appellant that "if there is anything sinister about the making of that loan of $520,000 then Mr Hodby, and Mr Hodby alone, knew about it." His Honor said: "The implication from this submission, ladies and gentlemen, is that neither the accused nor Mrs Hunt knew about it. For reasons given elsewhere in my summing up, I am obliged to tell you that there is no evidence that neither the accused nor Mrs Hunt knew about it, and it is legitimate for you to have regard to the fact that the accused has given no evidence or explanation of the Crown case, apart from what he told the police, as a consideration in making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise appear to be. I tell you that there is no evidence to support the alternative scenario that neither the accused nor Mrs Hunt knew that there was something sinister about the making of the $520,000 loan in the sense that the security offered was inadequate. The prosecution scenario to the effect that the conspirators knew that they were parties to an agreement for the performance of a dishonest act or course of conduct, that they knew that their involvement was part of a larger dishonest scheme, that they were acting dishonestly, and that they knew that the scheme or act might result in economic prejudice to the alleged victims, has simply not been contradicted or explained."

Mr Wells argued that the effect of those passages was to reverse the onus of proof and to remove from the jury the function of determining whether Hodby's evidence should be believed and acted upon.

There is to my mind no question of reversal of onus of proof. The learned judge was required to explain to the jury that suggestions made in cross-examination and statements made in the course of the address, possessed no evidentiary force. He quite properly pointed out to the jury that the evidence of prosecution witnesses as to dealings with the appellant was uncontradicted. That is not a reversal of onus. It is legitimate to assess evidence according to the power of a party to contradict it and that party's failure to do so. That process does not impinge upon the ultimate onus of proof. The learned judge gave clear and emphatic directions as to the onus of proof.

If these passages were considered in isolation there might be a question whether the jury would sufficiently understand that notwithstanding the absence of contradiction, they were required to decide whether or not to accept the evidence of Hodby and other prosecution witnesses. The summing up, however, must be considered as a whole and that was made plain in other passages.

The learned judge gave a clear and proper direction as to the significance of the appellant's failure to give evidence. It would have been clear to the jury from a number of passages in the summing up that part of their responsibility was to assess and decide upon the acceptability of the evidence of Hodby and of other witnesses. It is sufficient to quote the very last direction given to the jury before retirement: "If you disbelieve Mr Hodby's evidence, in particular, regarding the facts appertaining to the alleged 'secret meetings', or that they took place when and where they are alleged to have taken place, if you disbelieve Mr Hodby as to what was agreed, then you should bring in a verdict of not guilty. If you conclude that it is reasonably possible that Mr Hodby was not

telling the truth when he testified as to what was agreed at the so-called 'secret meetings', then you should find the accused not guilty. If you, as reasonable men and women, think that the evidence you have heard is open to any other reasonable conclusion (or rational explanation) than that the accused is guilty, then he should be acquitted; that is to say, found not guilty. If you are not satisfied that the inference of guilt is the only inference open to you upon a consideration of all the proven facts in the case, then he should be acquitted and found not guilty. If you have a reasonable doubt about any of the elements of the crime charged, then, of course, you should give the accused the benefit of the doubt and find him not guilty. But if you believe and accept the evidence of the Crown witnesses (in particular, Mr Hodby) and if you are satisfied beyond reasonable doubt to draw the inferences from the proved facts which the Crown invites you to draw, then it is open to you to find the accused guilty."

Finally it is necessary to turn to the submission that the conviction is not supportable in law or is unsafe or unsatisfactory.

The appellant is an experienced businessman. He became bankrupt in 1981. Nevertheless he continued business activities through companies. It emerges from the evidence that he was the controlling and directing force in those companies. In the early 1980's he planned and partially implemented a major development at Plympton known as the Plympton Super Centre. There was an associated development involving the erection of 13 motel units. He also had plans for a tourist development at Campbell Park. The appellant's companies were able to borrow certain amounts from financial institutions, but a large part of the money needed for the project came from loans of funds which had been placed by clients with Mr Hodby for investment.

Mr Hodby carried on business as a land and finance broker. Clients entrusted money to him for investment on adequate first mortgage security with regular payments of interest. He lent large sums of money to the appellant's companies to finance the abovementioned project. The status of the security obtained varied from time to time, but at times there were second mortgages or unregistered mortgages in respect of land over which there was a first mortgage to other mortgagees. The interest paid by the appellant's companies was often less than Hodby had to pay to his clients and payments by the appellant's companies were irregular. Hodby used money entrusted to him by clients to keep payments of interest going to his clients. The cumulative effect of these defalcations eventually led to his bankruptcy. He confessed his defalcations to the police in October 1986. He was in due course sentenced to imprisonment. He gave evidence at this trial under an immunity against prosecution for his part in the alleged conspiracy.

Hodby explained the nature of his business to the appellant. In the course of their dealings there was much discussion about security for the monies advanced. The jury would have had no difficulty in inferring that the appellant was well aware that it was Hodby's duty to obtain adequate security over real estate for the protection of his clients. This awareness must have been reinforced by the events of May to August 1986.

In May 1986 Hodby made known to the appellant that there was a shortfall of clients' monies and that he could no longer continue the business. The appellant obviously wanted continued access to the monies of Hodby's clients. He proposed that Hodby's business be acquired by a company Domitix Pty Ltd of which Barbara Hunt, Sophia Karounos and Hodby would be directors. The transfer took place. The appellant attended all Board Meetings of the company. Hodby was instructed that he was not to sign cheques without the authorization of the other directors. He was also instructed that all clients' monies were to be invested in the motel unit project referred to above.

There was an examination of the books of the Hodby business by auditors employed by Domitix. They reported on the state of the business and advised that all clients should be asked in writing to state the amounts which they had invested and the securities for their loans. Hodby greeted this recommendation with dismay as it must result in the exposure of his breaches of trust. The auditors insisted and indicated that they would resign if the recommendation was not acted upon. The appellant obviously did not want the source of his funds to dry up but the auditors' resignation would be disastrous. He therefore proposed that the business be transferred back to Hodby. This was finally done on 29th August. This episode must have deepened the appellant's awareness of Hodby's duty to obtain adequate first mortgage security for investments of clients' monies and of the losses facing the clients in consequence of the loans to the appellant's companies.

At about this time the transaction occurred which is the subject of the charge. Hodby lent to Karta Pty Ltd, one of the appellant's companies, Barbara Hunt and Sophia Karounos the sum of $520,000. Karta Pty Ltd used $300,000 of this money to purchase a property at Campbell Park. The only security for the loan was a mortgage to Hodby's clients over the Campbell Park property. There was evidence that the true value of the property did not exceed the price paid. The date of the mortgage was 12th September 1986. At the same time Hodby lent a further sum of $240,000 of his clients' money to the same borrowers. Forty thousand dollars of that sum was used to purchase a property at Moana which was the only security given for the loan.

Hodby gave evidence of the circumstances in which these transactions occurred. On Tuesday evening the 26th August 1986, after it had been arranged that the business would be transferred back to Hodby, the appellant told Hodby at a private meeting that he wanted a further $400,000 in addition to the existing loans. On the morning of Wednesday 27th August the appellant again met Hodby privately. He told him that the $400,000 could be made available by Hodby lending $520,000 of his clients' money on the security of the Campbell Park property which would be purchased for $300,000, leaving a surplus of $220,000, and lending $240,000 on the security of the Moana property which would be purchased for $40,000, leaving a surplus of $200,000. A total of $420,000 would thereby become available for the appellant's purposes.

Hodby's evidence was that he disagreed with this proposal. The appellant then said that they were the terms that he wanted and that "if they weren't agreed to, he would suggest that the auditors proceed with their recommendation of advising my clients of their true position." Faced with exposure Hodby "reluctantly agreed."

The learned trial judge correctly directed the jury that it was necessary for the prosecution to prove that the parties to the alleged conspiracy knew that they were participating in a dishonest act and that their conduct might result in economic prejudice to members of the public; R v Allsop (1977) 64 Cr App R 29. The prejudice relied upon by the prosecution was the diminished protection resulting from only partial security as distinct from full and adequate security.

Mr Wells argued that the verdict could not be supported having regard to the evidence and that the case ought not to have been left to the jury. The flaw in the prosecution case, in his contention, was the failure to prove that the co-borrowers Barbara Hunt and Sophia Karounos lacked the means to meet the debt. In my opinion the existence of economic prejudice to the lenders did not depend upon the extent of the means of the borrowers. A secured loan is inherently a sounder investment than an unsecured loan irrespective of the financial position of the borrowers. Individuals of apparent financial soundness are sometimes found to be lacking in substance. The financial soundness of people can change quickly and unexpectedly. The inherent virtue of full and adequate security is that the lender can have recourse to an asset of adequate value and is not dependent upon the solvency of an individual or the difficulties of obtaining and enforcing a personal judgment. It was Hodby's duty to ensure that his clients had full and adequate first mortgage security. Knowing this, the appellant agreed with Hodby, indeed put pressure upon Hodby, to apply the client's money to a loan with only partial security. Instead of being fully secured creditors, the lenders were left in the position of being partially unsecured and were thereby exposed to the risks inherent in being an unsecured creditor. That was a dishonest agreement to use the lenders' monies in breach of Hodby's duty to his clients in a way which exposed them to the economic prejudice of becoming partially unsecured creditors instead of fully secured creditors. That, in my opinion, was an agreement to defraud, irrespective of the financial capacity of the borrowers to meet the obligations of the personal covenant in the mortgage.

The case for the prosecution depended to a substantial extent on the evidence of Hodby. That evidence came, of course, from a tainted source but it received cogent corroboration from the incontrovertible facts. The documents proved that a loan of $520,000 was made, that the only security was the mortgage on the Campbell Park property and that that property was purchased for $300,000. The valuation evidence, which was not contradicted, proved that the property was not worth more than that. That incontrovertible evidence established the misuse of the monies entrusted to Hodby by its loan on other than adequate security. Hodby's evidence merely supplied supplementary information as to the origin negotiation and motivation of the scheme.

There was cogent evidence of a deliberate scheme, not only agreed to but instigated by the appellant, to defraud the lenders by furnishing security, in breach of Hodby's duty to them, of far less value than that needed to provide adequate security to them. The appellant gave no evidence contradicting the incriminating evidence produced by the prosecution, despite the learned judge's clear advice as to the possible consequences of taking that course.

To my mind the evidence clearly proved that the appellant and Hodby agreed - I make no comment on Mrs Hunt who is still to stand trial - on a plan by which Hodby would lend $520,000 of his clients' monies on the inadequate security of land acquired for $300,000. The motive was to provide $220,000 towards the $400,000 which the appellant required for business purposes. It was a deliberate scheme devised and instigated by the appellant with knowledge that it involved a breach of Hodby's duty to his clients. The appellant and Hodby deliberately defrauded the lenders by enabling the borrowers to obtain their money without providing adequate security. In my opinion the verdict was fully supported by the evidence. He was properly convicted after a trial which was conducted fairly despite the difficulties created by the appellant's conduct.

I consider that all grounds of appeal fail and that the appeal should be dismissed.

JUDGE3 OLSSON J This is an appeal against the conviction of the appellant, by verdict of a jury, of the common law offence of conspiracy to defraud. It arises from a prosecution which has had a long and unfortunate history.

2. The specific charge proffered against the appellant was that he and Barbara Joy Hunt ("Hunt"), between 1 August 1986 and 31 October 1986, at Adelaide and other places, conspired together with Ross Daniel Hodby ("Hodby") to defraud those members of the public who had invested moneys with Hodby for the purpose of those moneys being lent on adequate security to third parties by Hodby, by causing moneys in the sum of $520,000, to which those members of the public who had so invested with Hodby were entitled, to be lent to Karta Pty Ltd, Sophia Karounos and Hunt, when they knew that the said loan was not adequately secured.

3. It is unnecessary, for present purposes, to embark upon a detailed analysis of the factual history, as to which evidence was led at trial. The salient features may be summarised as under:- . Hodby was a well known land and finance broker. As an adjunct to his broking practice he had, from time to time, received considerable sums of moneys from members of the public for investment on their behalf. It was the Crown case that all of these moneys were received on the express or implied basis that they were to be on-lent to third parties on the security of adequate mortgage securities over real property. . Over a period of some years up to mid 1986 certain of these funds were lent to companies involved in what was known as the "Super Centre" project on Marion Road. Such loans included mortgage advances to Krakat Pty Ltd ("Krakat") and Vimited Pty Ltd ("Vimited"), secured over Super Centre properties. The appellant, Sophia Karounos (his sister-in-law) and Hunt were all associated with those companies, either directly or indirectly. . At the relevant times the appellant was an undischarged bankrupt. Nevertheless he continued to conduct business operations, including the development of the Super Centre, through various corporate entities, including the above companies, of which Hunt and Sophia Karounos were directors. . In June 1986 a company associated with the appellant called Domitix Pty Ltd ("Domitix"), of which Hunt was, at some point, made a director, acquired Hodby's businesses. This seems to have been a conditional acquisition. Domitix caused an accountant to look into the businesses immediately after takeover, with the result that it rapidly became apparent that Hodby had been guilty of serious financial irregularities in the conduct of them -indeed they were in a parlous state, due to defalcations and improper conduct on his part. . In August 1986 the businesses were retransferred by Domitix to Hodby, at a point at which the appellant, Hunt and Hodby were all well aware of the situation related to and the irregularities associated with them. . This occurred at a time at which large sums of money had already been made available by Hodby, on behalf of his clients, to Krakat and Vimited. However, the appellant told Hodby that a further $420,000 or thereabouts was urgently required for the Super Centre project. . After discussion of the fact that the appellant could not offer alleged, hatched by the appellant and his alleged co-conspirators, at a private meeting at the Super Centre, whereby two separate advances could be made on mortgages in respect of land at Meningie ("Campbell Park") and Moana respectively, acquired by a company associated with the appellant and known as Karta Pty Ltd ("Karta"), the loans being inflated well beyond the purchase prices of those properties; so as not only to provide funds for the purchases, but also to produce surpluses aggregating $420,000. . According to Hodby the appellant virtually threatened him with exposure in relation to his admitted earlier unlawful conduct with moneys entrusted to him unless he went along with the scheme. He said that he therefore reluctantly agreed to the proposal. . In the event a mortgage loan of $520,000 was arranged in respect of the Meningie property (which Karta purchased for $300,000) and a like loan of $240,000 was made available in respect of the Moana land (which was purchased for $40,000). However, both Sophia Karounos and Hunt also personally signed the mortgages as principal debtors. The charge against the appellant specifically focuses upon the Campbell Park property transaction. . Settlement in respect of these transactions took place on 12 September 1986 and 29 August 1986 respectively. About a month later Hodby voluntarily went to the police and confessed to his misdeeds in respect of his businesses. He later became bankrupt. In the course of Hodby's examination by the Official Receiver, the above transactions came to light and were reported by the latter to the appropriate authorities. . Hodby was duly prosecuted and sentenced to a custodial term in respect of various offences to which he had confessed. He was, however, granted immunity from prosecution in respect of his part in the Karta transactions, upon undertaking to give evidence against the appellant. He thus became a principal witness for the Crown at the appellant's trial. . In giving evidence Hodby asserted that, at the time of the transaction the subject of the charge, the appellant, Sophia Karounos and Hunt all well knew that the funds being lent to Karta were funds to which members of the public were entitled and that

they should not have been lent on the security of property worth far less than the amounts being advanced - that they all knew that the transactions were in breach of Hodby's instructions from (and obligations to) those who had placed money with him for investment.

4. The information against the appellant was presented to this Court on 11 October 1991, following substantial committal proceedings. The committal thus occurred some five years after the alleged offence, a point heavily relied on by the appellant in relation to certain pre trial applications, to which I shall shortly come. It was said by the Crown that significant time was necessarily taken in investigating this matter, in the context of much wider investigations related both to Hodby and the corporate entities with which the appellant had been involved.

5. Following presentation of the information, the charge against the appellant was assigned for trial before Wilson DCJ in the District Court. What thereafter transpired can only be characterised as a trial judge's nightmare.

6. It should be said that, as originally presented, the information jointly charged the appellant, Sophia Karounos and Hunt with conspiracy to defraud. A nolle prosequi was entered in respect of Sophia Karounos on 3 July 1992 and, on 26 August 1993, an order was made for a separate trial in relation to Hunt.

7. Wilson DCJ first became seised of the matter on 3 July 1992 and the trial of the appellant eventually concluded on 5 January 1994, when the jury returned a unanimous verdict of guilty.

8. In the meantime, pre trial applications of various types had occupied 46 sitting days up to 30 September 1993 (for all but 12 days of which the appellant had no legal representation). The trial itself proceeded, in a somewhat staccato fashion, over some 49 sitting days, during the whole of which period the appellant conducted his defence without legal representation. In total the transcript of all of the proceedings aggregated some 4,889 pages, in addition to which a large volume of documentary exhibits was tendered. The summing up occupied well nigh two whole days. Interestingly, the jury returned its verdict after a retirement of only one hour.

9. Pre trial there were in excess of 20 status conference hearings, two "Dietrich" applications and a major application for a stay of proceedings on the ground of abuse of process. The trial itself was punctuated by a variety of interruptions and applications related to the health of the appellant, and applications touching on evidentiary matters and various specific issues raised by the appellant, some of which are the subject of grounds of appeal.

10. All in all it was a monumental undertaking with which the learned trial judge coped with considerable patience and calm perseverance.

11. Against that background the appellant raised a substantial number of issues on this appeal. I now proceed to deal with them in turn, although not necessarily in the order in which they were pleaded.

The "Dietrich" Issues 12. The first Dietrich application was made on 7 June 1993 and the second on 28 September 1993. Both were refused.

The appellant consistently claimed that he was unable, adequately, to conduct his defence in person and that the problem was compounded and exacerbated by continuing ill health, which, in turn, was precipitated - at least in part - by the stress of having to cope without counsel. It has also been argued before this court that those handicaps also permeated and contributed to other matters of complaint arising on the appeal.

The first Dietrich hearing extended over some four sitting days and involved the taking of oral evidence. In reasons published by him the learned trial judge concluded, on the material then before him, that it had been shown that the appellant stood charged with a serious offence and, assuming his veracity and credibility, that he was indigent. However, he considered that the appellant had failed to prove that he was unable to obtain legal representation "through no fault on his part". He held that "The fault must be real and blameworthy. It is not doing what is reasonable under the circumstances, or doing something which ought not to be done".

Wilson DCJ found that the inability of the appellant to continue to qualify for legal representation which, up to that time, had been made available to him by the Legal Services Commission ("LSC") was due to the fault of the appellant, in that legal aid had been terminated because the appellant had:- (1) failed to supply appropriate information and documentation to the LSC with respect to his financial resources and circumstances; (2) raised moneys of unknown origins and amounts and committed some of them towards the acquisition of a property at Panorama and building renovations; (3) demonstrated an ability to borrow substantial sums of money.

It should be said that these findings were, at least in part, prompted by a failure or refusal of the appellant to waive privilege and supply relevant information to the court itself.

In short Wilson DCJ concluded that the LSC had been reasonable in its requirements of the appellant and that the appellant had inappropriately declined to meet them. The termination of further legal assistance had therefore been justified. In later written reasons the learned trial judge said that, in relation to the oral evidence given by the appellant at the first Dietrich application, he found him evasive, lacking in memory of matters which he could fairly be expected to recollect and, at times, prevaricating. Indeed, he said that the appellant appeared to exhibit what appeared to be paranoid or quasi-paranoid delusions. He found the evidence unconvincing and held that the appellant's performance "was the conduct of a liar, rather than an indication of naivete". He rejected his testimony on a number of important questions.

At the end of the day the learned trial judge, not surprisingly, found that the appellant had failed to discharge the onus which rested on him of demonstrating that his asserted situation existed - if it did truly exist - through no fault on his part. A stay was refused.

The second application, made on 28 September 1993, was coupled with an application based on the then medical condition of the appellant. In essence it was for a stay for three months, on the basis that the estranged wife of the appellant was said to have been attempting to raise some funding to enable the appellant to have legal representation. This application was made, literally, on the eve of empanelment of the jury.

The learned trial judge was not satisfied as to either basis for the application. He considered that, on the material before him, there was no evidence of immediate prospect of legal representation; and that the situation remained unchanged from that which existed at the time of the first application. He also rejected the application, insofar as it was based on ill health, because no sufficient medical evidence had been advanced to justify it.

There can be no doubt that, in considering the applications, the learned trial judge correctly directed his mind to the relevant dicta in The Queen v Dietrich [1992] HCA 57; (1992) 177 CLR 292. However, Mr Wells QC, of counsel for the appellant, contended that the learned trial judge misdirected himself as to the "through no fault" test.

In the course of my judgment in State of South Australia v Russell and Craig [1994] SASC 4491; (1993) 71 A Crim R 497 I expressed the view that, in my opinion, what had been in contemplation by the High Court "was a test which focused on the reasonableness of the conduct of an accused in all the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune". I do not take the majority in that case to have dissented from such a proposition. The difference which arose between the members of the court essentially related to its application to the particular facts and broader issues of legal principle related to prerogative relief.

Mr Wells QC sought to contend that the "no fault" concept bore on conduct on the part of an accused resulting in a failure to obtain legal aid, which conduct demonstrated a desire not to have representation. So it was, he argued, that, in the case at bar, the motivation of the appellant, in adopting the stance which he did adopt, related not to a desire not to have representation, but to a desire to avoid prejudice to his situation with a financier, which would probably have resulted from enquiries made of it by the Legal Services Commission if he had disclosed the details sought from him.

Quite apart from the fact that no suasive information as to precisely what prejudice was likely to accrue was ever placed before the learned trial judge (or, for that matter, this Court) I can discern nothing in the judgments in Dietrich v The Queen which provides justification for the line of reasoning espoused by Mr Wells QC. It is, in my view, not a question of there being a demonstrated desire not to have representation, but, rather, a consideration of the necessary practical consequences of what, in the circumstances, ought to be characterised as unreasonable conduct on the part of an accused which has the end result that he will not be represented.

No doubt, what constitutes unreasonable conduct will necessarily require consideration of the motives and reason for particular conduct under consideration, but, in the end, what is in issue is an objective appraisal of specific conduct and the circumstances which gave rise to it, including the motivation of the accused person.

Tested in that way, it seems to me that, on the information before him, the ultimate decisions of the learned trial judge were both predictable and inevitable. The appellant simply did not discharge the onus which was upon him of satisfying all elements of the "Dietrich" test.

I therefore turn to the matters argued in relation to the more general application for a stay of proceedings on the ground of the ill health of the appellant.

There can be no doubt that, at times, the appellant was afflicted with symptoms of high blood pressure, a possible peptic ulcer and the effects of sleep apnoea. These led to a number of adjournments of the trial, and, at the proper insistence of the learned trial judge, the calling of some medical evidence. It was urged upon this court that the learned trial judge did not adequately recognise the impact of the appellant's medical problems upon him and his practical capacity to conduct the defence adequately.

I have considered all of the material identified on behalf of the appellant in that regard, but do not find his argument suasive. It is, I think, unnecessary to recite it in detail. Suffice it to say that the learned trial judge structured the sitting days of the trial both to meet this and the other practical needs of the appellant, he did grant significant adjournments to accommodate the apparent medical needs of the appellant and he gave due recognition of such medical evidence as was forthcoming.

It must be said that, at times, the learned trial judge, quite justifiably, appears to have evidenced apparent scepticism concerning some of the health related assertions on behalf of the appellant, although he did grant him considerable indulgence. The fact of the matter was that, at times, the available medical evidence was considerably more equivocal than the appellant's assertions, as to the potential impact of such medical problems as he had, upon his ability to conduct his defence.

On an objective review of this aspect of the case I can perceive no proper criticism of the actions of the learned trial judge.

It was further contended that the proceedings against the appellant ought to have been stayed as an abuse of process and also that the learned trial judge had inappropriately denied the appellant an opportunity of calling Mr Lane, who prosecuted for the Crown, and certain other proposed witnesses, to demonstrate that the prosecution had been launched for an improper, collateral purpose.

In essence it was claimed that it had been the intention of the appellant to seek to attempt to demonstrate that the Corporate Affairs Commission, of which Mr Lane had respectively been Assistant Commissioner and Acting Commissioner, had been guilty of "negligence and gross mismanagement" of the investigation of the Hodby group of companies and that, to cover up that situation, it had made an arrangement with Hodby whereby he, personally, would accept blame for the loss of investor funds - so that investors could nevertheless be indemnified out of the relevant statutory guarantee fund and certain of his associates could be exonerated. The appellant claimed that he also sought to demonstrate that such a situation explained the long delay for his prosecution and the fact that he had been prejudiced by reason of the further fact that documents, including documents said to have been privileged, had been illegally seized under a search warrant and were no longer available to the appellant.

In fact the appellant himself gave evidence on certain of those aspects and a number of other witnesses were called. This court was told that the learned trial judge required the appellant's contentions to be argued and dealt with in two parts, namely, first, those aspects related to alleged bad faith and misuse of warrants and, second, those aspects bearing on delay and prejudice.

Quite apart from the merits, Mr Wells QC challenged the propriety of the lastmentioned approach because, he said, it had the effect of seriously impairing the understanding by the learned trial judge of the appellant's case on the stay application; and prevented him from perceiving the legitimate forensic purpose behind two subpoenas which were directed to Mr Lane, but set aside. It also, so Mr Wells QC submitted, denied the learned trial judge the ability to consider "the united force of all the circumstances taken together ... for the purpose of testing them against the relevant legal principles".

As appears from the reasons for ruling on the abuse of process application published by the learned trial judge on 2 August 1993, the application initially commenced on a very general basis. However, after some evidence had been taken, the appellant was called upon, by order, to provide specific particulars of what it was that he alleged.

This prompted the production by the appellant of a 42 page document, followed by a further summary document (exhibits S67 and S68), the key contents of which were summarised by the learned trial judge in his ruling. To say the least, certain of the assertions made were couched in somewhat extravagant terms.

In the course of his ruling the learned trial judge pointed out that the witnesses called did not support the appellant's assertions and that he had simply not made good the many allegations proffered. He also concluded that there was no substance, on the evidence, in the allegation relating to misuse of warrants.

In several, separate rulings published in July and August 1993, the learned trial judge set aside a number of subpoenas (both testificandum and duces tecum) directed to a variety of proposed witnesses, including Mr Lane (who had provided a proof of that evidence which he might have been able to give).

Having regard to authorities such as R v Saleam (1989) 33 A Crim R 406 and Hunt v Wark (1985) 40 SASR 489, the learned trial judge concluded that, on the material advanced by him, the appellant had fallen short of demonstrating a legitimate forensic purpose in issuing the subpoenas and/or that some subpoenas were no more than "fishing". With particular reference to the attempt to subpoena Mr Lane, Wilson DCJ said that he had not been satisfied that "it is 'on the cards' that either Mr Lane's evidence or the documents would materially assist the accused in his defence".

It should be noted that the proceedings related to the foregoing issues extended over a lengthy period of time, in the course of which the learned trial judge had ample opportunity of appreciating the issues involved and assessing the detailed arguments advanced before him. So convoluted were the oral and written submissions made by the appellant that the learned trial judge was driven to the expedient of directing a particularisation of the contentions being advanced and of ordering that they be dealt with in an orderly manner. I do not doubt for a minute that he was fully appreciative of the overall flavour and weight of the basis of the appellant's arguments and evidence.

Moreover there is considerable force in the respondent's contention that the precise case now sought to be identified by Mr Wells QC, in his written and oral submissions, is different, in significant respects, from the thrust of that which was relied on by the appellant at first instance, and was, in important respects, not put to the witnesses.

Having considered the material advanced on this appeal I remain totally unconvinced that the learned trial judge erred in his refusal to grant a stay, on the grounds which were advanced before him. Even given due allowance for the appellant's lack of legal representation, the learned trial judge correctly assessed that what was put to him was essentially rhetoric and surmise, rather than substance.

It was also complained that Wilson DCJ ought to have disqualified himself as trial judge, having first heard and determined the Dietrich application, on the ground of apparent bias.

Mr Wells QC contended that the learned judge, having heard the appellant give evidence on oath and having rejected his evidence "as lies, prevarications, evasions and lacking in credit-worthiness", ought not to have proceeded to deal with the subsequent, multifaceted application for a stay on the ground of abuse of process.

This was put to the learned trial judge but, for reasons later expressed by him on 20 August 1993, he declined to disqualify himself. The application for him to do so was not made until an advanced stage of the application for a stay and was, in reality, proffered on the basis of the appellant's expressed perception of "the trend of rulings" against him - a ground which was patently unsustainable as a basis of the request for disqualification, at least taken alone.

In addressing the application the learned trial judge correctly identified the applicable authorities such as R v Watson: ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, R v Simpson; ex parte Morrison [1984] HCA 25; (1983) 154 CLR 101, In re Renaud: ex parte C.J.L. [1986] HCA 39; (1986) 60 ALJR 528, R v Garrett (1988) 50 SASR 392, Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 and R v Hutchinson (Court of Criminal Appeal, 30 July 1993, unreported).

Inter alia, he had this to say:- "... I am unaware of any grounds for supposing, let alone establishing, that it might reasonably be apprehended by fair-minded people that I might resolve the questions before me otherwise than with an impartial and unprejudiced mind. I have emphasized the word

'reasonably'. Suggestions of the appearance of bias have been made, but I know of no proper foundation for such suggestions nor am I aware of reasons why I should accede to such suggestions. The mere expression of the apprehension of bias does not establish that it is reasonably held. The mere fact that a trial judge makes rulings contrary to the interests or expectations of an accused person per se is not evidence of bias. The belief held by the applicant, however genuinely held, is not enough; the fact that the applicant has become concerned and frustrated is not enough."

Having so expressed himself, he went on to examine a series of detailed bases which had been articulated by the appellant as the warrant for his application. After examining each in turn he concluded that these related to nothing more than normal incidents of pre-empanelment processes and was unable to discern any proper basis for desisting from further hearing such processes. In this regard it is of interest that he did not publish written reasons as to his conclusions concerning the credibility of the appellant until 20 January 1994, when requested by the appellant to do so.

In my opinion the application was patently ill founded, on the basis on which it was prosecuted. The mere fact that certain rulings given had been against the appellant (and were, in fact, well founded) constituted no basis for disqualification. The grounds now advanced are quite different from those relied upon at the time and seem to me to seek to derive ex post facto validity from the reasons published at a much later stage.

As I understand the present submission of the appellant it is, in part, to the effect that the learned trial judge failed to appreciate the real basis of the application and proceeded upon the assumption that the Dietrich related application and the broader stay applications were simply applications in the course of the trial which, as trial judge, it was his duty to hear and determine; whereas each application was a discrete pre trial application and the determination of one by another judge was not incompatible with Wilson DCJ continuing as trial judge in due course.

As was pointed out in R v Masters and Ors (1992) 26 NSWLR 450 at 472, there would appear to be little or no practical distinction in the two situations. Moreover, it may be a moot point, having regard to the mode of expression employed in section 285a of the Criminal Law Consolidation Act, as to whether the assumption implicit in the submission by Mr Wells QC is in fact correct. Be that as it may, it is certainly plain that, as Mr Wells QC himself contended, the appellant was clearly out of his legal depth and that he made out no valid ground for Wilson DCJ to disqualify himself, merely on the basis that a series of rulings had, as he saw the situation, been adverse to him.

More importantly, even given that questions of degree may sometimes arise, the reasoning in cases such as Fitzgerald v Director of Public Prosecutions and Ors (1991) 56 A Crim R 262 and R v Masters and Ors (supra) renders it abundantly plain that the mere fact that, in the course of some preliminary application, a trial judge expresses adverse views concerning the reliability or credit of an accused does not automatically lead to a proper and reasonable apprehension of bias in relation to that judge. In the latter case the Court of Criminal Appeal went so far as to suggest that the contrary proposition "makes nonsense of the judicial system".

In the instant case it must be kept firmly in mind that the findings made related solely to credibility regarding a particular issue and that such issue was quite discrete and different from the issues which were to arise at trial.

There is simply no suasive reason for impugning the conclusion expressed by Wilson DCJ on this point.

I proceed, then, to a consideration of the submission of Mr Wells QC to the effect that the learned trial judge fell into error in permitting Mr Lane to continue as prosecutor in the case and in refusing the appellant adequate opportunity of advancing argument in that regard, notwithstanding what was said to have been Mr Lane's apparent bias and the possibility of the jury developing a perception that he had developed (and was exhibiting) a personal belief in the guilt of the appellant.

In this regard, it was submitted that the peculiar and well known responsibilities of a prosecutor to discharge his duties in an independent and objective manner clearly precluded Mr Lane from adopting the mantle of Crown Prosecutor, because of his earlier role as Assistant Commissioner and then Acting Commissioner for Corporate Affairs. It was argued that, in that respect, the principles as to apparent bias were no less applicable to Mr Lane than to a judicial officer.

I do not consider that there is any basis for contending that the appellant did not have proper opportunity to ground and prepare a submission in this regard. He knew of Mr Lane's situation from an early stage and his attempt to challenge Mr Lane's status in the proceedings smacked of a belated attempt to clutch at straws, so as to cause obstacles for the prosecution.

Even if it be accepted that at least the same legal concept of bias as is applicable to judicial officers was equally pertinent to the Crown Prosecutor, such evidence as ultimately emerged at trial indicated that he had not, in fact, had any significant nexus with the appellant's case in his former official capacities, save that he had occasion to swear an affidavit in bankruptcy proceedings. Moreover his conduct at trial did not, at any stage, exhibit other than a proper approach to his duties.

There was simply no substance whatsoever, to which the appellant was able to point, which made good any allegation of bias, or apparent bias, on the part of Mr Lane. In my view Perry J was, with respect, amply justified in refusing leave to appeal on such a ground.

I next turn attention to the challenge mounted by Mr Wells QC to the rejection by the learned trial judge of the appellant's submission, at the close of the Crown case, that there was no case to answer. Some attempt was also made to criticise the refusal of the learned judge to give a "Prasad" direction to the jury. All that need be said in the latter regard is that the decision as to whether or not to give such a direction is entirely a matter for the exercise of judicial discretion by the presiding judge. (The Queen v Prasad (1979) 23 SASR 161.) It is virtually impossible to perceive how a refusal to give such a direction could ever constitute a proper ground of appeal.

As I understand the primary contention of the appellant, it is to the effect that the further particulars of the offence charged given by the Crown rendered it apparent that the core of the facts relied upon, as to the appellant's alleged conduct, was that, together with his alleged co-conspirators, he knew that the relevant conduct might result in (and would create the risk of infliction of) economic prejudice to those members of the public who were minded to place funds with Hodby for investment.

Mr Wells QC submitted that a critical feature to be addressed was that both Sophia Karounos and Hunt, were, as earlier recited, personally and directly liable on their covenant in the instrument of mortgage over the Meningie property. So it was, he said, that:- "4.4 Whatever the value of the security (as to which the Crown sought to prove in evidence that it was worth no more than $300,000), it could not be concluded that the appellant knew that the borrowing of the $520,000 'might result in economic prejudice to

the public' unless there was evidence that both the mortgagor (Karta Pty. Ltd.) and the joint borrower(s) (Ms. Karounos and Mrs. Hunt) were lacking in funds, or without access to funds, sufficient to enable the mortgagee to cover the balance of its debt out of the net proceeds of sale out of Campbell Park."

He went on to contend that, although evidence was called by the Crown for the purpose of proving that Karta lacked such funds, or access to them, there was simply no evidence to establish a similar position with respect to the personal covenantors. The onus was, he asserted, on the Crown to exclude the availability of such funds, in absence of which it had failed to establish that the co-conspirators knew that the loan was not adequately secured.

There is, in my assessment, no substance in the primary submission of the appellant on this topic. The Crown led evidence, as portion of its case, that it was known to the alleged conspirators that the moneys proposed to be lent to Karta, Sophia Karounos and Hunt were held by Hodby on trust to be invested on the security of adequate real estate mortgages - a requirement which was pitched at the adequacy of the value of any real estate, vis a vis the sum secured by a mortgage in respect of it. (As to this the agreement for the sale of Hodby's banking business to Domitix and Hodby's Statutory Declarations given on 29 August 1986, coupled with evidence related to the subsequent investigations of the business caused to be made by him, his whole course of dealing with Hodby and Hodby's own direct testimony, constitute clear evidence that Karounos must have been well aware of that situation.)

The learned trial judge was plainly correct when he rejected such a submission.

It is timely, in this context, to recall that the essence of the charge against the appellant is that he agreed with others to mount a scheme, the purpose of which was to defraud others. The common law offence of conspiracy to defraud necessarily focuses on an agreement dishonestly to do something which will or may cause loss or prejudice to another (R v Landy (1981) 1 All ER 1172 at 1181). If the action embarked upon imperils the economic interest of the victim, that is enough to constitute fraud, even though, in the event, no actual loss may be suffered and loss may not even be intended (R v Allsop (1976) 64 Cr App R 29 at 31). As Shaw LJ said in Allsop:- "... Interests which are imperilled are less valuable in terms of money than those same interests when they are secure and protected. Where a person intends by deceit to induce a course of conduct in another which puts that other's economic interests in jeopardy he is guilty of fraud even though he does not intend or desire that actual

loss should ultimately be suffered by that other in this context."

The notion of dishonesty is, of course, that enunciated in the well known case of R v Ghosh [1982] EWCA Crim 2; (1982) 1 QB 1053. There are two successive processes of reasoning involved. The jury must first be satisfied whether, according to the ordinary standards of reasonable and honest people, what was done was dishonest. If it was dishonest by these standards then the jury must also be satisfied that the accused must have realised what he was doing was, by those standards, dishonest. (See also Cheatle and Anor v Director of Public Prosecutions (Court of Criminal Appeal, 2 July 1992, unreported).)

In the instant case the appellant was an experienced businessman who well knew the difference between a secured and an unsecured loan and the basic commercial concept of the lending of moneys on adequate first mortgage security. The obvious, compelling and only rational inference which arose on the Crown evidence was that the appellant must have been well aware that what was being done necessarily exposed the owner of the moneys being advanced to an economic risk, to the extent that the loan was only partially secured. In this case there was no evidence given by the appellant, or any other witnesses, to rebut that inference.

It is, in my opinion, no answer to say, as Mr Wells QC sought to do, that it remained a reasonable possibility that the appellant considered that the personal covenant of Sophia Karounos and Hunt provided adequate security to the lender.

There are two short ripostes to such a proposition.

First, even assuming that these persons were persons of substance - an aspect which, in all of the circumstances, seems a most unlikely situation - a risk necessarily arises. As the Chief Justice so pithily put the point in the course of argument:- "... The problem ... is, of course, that a secured loan is secured precisely because the lender can have recourse to the secured asset for the full amount of his loan. If he has to depend on a personal covenantor, no matter how wealthly the covenantor might be, there is

a risk ... That is the difference between a secured loan and an unsecured loan, why people in the position of Mr Hodby are required to fully secure their clients loans. ... I am simply putting to you that it is not the beginning and the end of the matter that the personal covenantor might have ample assets at that time. It is still a less satisfactory security than a full security by way of mortgage on real estate."

Second, the evidence led by the Crown clearly demonstrated that the appellant and the alleged co-conspirators deliberately entered into the impugned transaction as part of a scheme designed, specifically, to create a facade that a proper mortgage loan had been made in accordance with Hodby's instructions, when they well knew that those instructions were being breached.

Particularly in the absence of a contrary explanation on oath by the appellant, it is impossible, as a matter of commonsense, to perceive how the jury could rationally have concluded other than that the Ghosh tests had amply been satisfied. With all due respect to Mr Wells QC, it is stretching credulity to an unacceptable extent seriously to suggest that, at the end of the day, there remained a reasonable possibility of innocent intention, which the Crown had failed to negative - because it had not demonstrated that the personal covenantors were not persons of substance.

I next pause briefly to refer to the proposed ground of appeal which seeks to aver that, during the course of the Crown case, a process server committed a contempt of court by serving on the appellant at the bar table, whilst the jury were in court, a bundle of Investigation Summonses issued at the instance of five separate creditors. It is said that this was seriously prejudicial to the appellant and should have led to a mistrial.

The appellant sought a mistrial some five days after the event, but the learned trial judge refused to grant it. Wilson DCJ indicated that the incident, if it occurred as alleged, was certainly inappropriate, but he pointed out that it was so unremarkable, at the time when it was said to have occurred, that he himself had been totally unaware of it.

There is absolutely no evidence that the jury were aware of what was said to have occurred, or its significance and no actual prejudice was ever demonstrated. It is small wonder that Perry J declined leave to appeal on this ground. He was, with respect, plainly correct in doing so.

It is also convenient, at this point, briefly to refer to the ground of appeal which asserts that, in the circumstances, the Crown Prosecutor had no right of final address to the jury (because the appellant was unrepresented) and that the learned trial judge erred in permitting such an address.

Section 288b of the Criminal Law Consolidation Act stipulates as under:- "288b (1) At the conclusion of the evidence, the prosecutor and the defendant are entitled to address the court on the evidence. (2) The address for the prosecution is to be made before any address for the defence."

Mr Wells QC valiantly sought to contend in his submission that, properly construed, the section does no more than confer on the court a discretion to permit such addresses; and that "the effect of the word 'entitled' is simply to remove the traditional bar to a closing address by the Crown where the accused is unrepresented: in effect, 'the Crown is no longer disentitled'". So it was, he submitted, that the learned trial judge retained a discretion, which he ought to have exercised against the Crown. Alternatively, it was said that he ought at least to have "invited" the Prosecutor to "waive" any right of final address, having regard to long established practice.

It is difficult to conceive of a statutory provision being couched in less unambiguous terms. The word "entitled", applies, in the section, to prosecution and defence alike. According to its normal usage the word "entitle" means to give "a right". There is simply no scope for implying any residual discretion and, having regard to the relatively recent enactment of the provision against the background of long established prior practices, I consider that there was no duty whatsoever upon the learned trial judge to attempt to dissuade the prosecutor from exercising what was his statutory right. The statute clearly contemplates that such an address will normally take place.

I now come back to issues of somewhat greater substance.

The grounds of appeal make complaint that problems arose at trial in relation to two of the jurors, namely Lucy Stacharski and Paul Thomas Haskett. I shall discuss each in turn.

In the course of the trial, on 6 October 1993, the learned trial judge received a note from Ms Stacharski which was couched in these terms:-

"I have concerns with this trial. I work for a department that has had dealings with Mr Karounos in regards to industrial matters. I do not wish to jeopardise the trial and would like to discuss this matter."

Wilson DCJ caused the juror to be brought into the courtroom in absence of the other jurors, prior to resumption of the trial.

She told him that she was employed by the Department of Labour. The following dialogue then ensued:- "Q. Are the dealings that you say that department has had with Mr Karounos such that you would find it difficult to discharge your duty as a juror in this trial. A. I think I might have trouble with that. I wasn't aware of this before. I apologise. Q. You don't need to apologise. Of course, jurors can't be aware of everything. We do our best to eliminate potentially difficult problems. What would the difficulty be because of your awareness of these dealings with Mr Karounos. Would you not be able to be unprejudiced in your approach to your task. A. I didn't really discuss the case. When the Plympton Park Centre came up, it is an area that my region deals with, and I just wanted to make sure whether any of the members at my work place were involved with any dealings with Mr Karounos. All I mentioned was Mr

Karounos's name, and they told me that they had visited Plympton Park Centre for award matters. I didn't say any more, but they also brought in Mr Hodby, and it has concerned me whether I should be sitting on this trial or not. Q. I understand your concern, and, quite correctly, you have raised the matter. Could I ask a question from another point of view. Is there any information that has come into your possession whilst working with the Department of Labour that relates to Mr Karounos

and his dealings with the department. A. I don't know about Mr Karounos beforehand. There is nothing that relates to this particular trial. Q. The information that has come to your possession, does that embarrass you as a juror who is expected to bring an unbiased, unprejudiced and open mind to their task as a member of the jury. A. I don't think it is as such, no. Q. Now being aware of these dealings and this contact between Mr Karounos and the department, you still feel that you can bring an open mind to your task as a juror. A. I think I could, yes. HIS HONOUR: Mr Lane, would you urge me to enquire any further? MR LANE: No. One question that might be available to you is to ask this lady whether, and she has said she has had very brief discussions with her working colleagues, in the course of those brief discussions any of her colleagues expressed any view or opinion about Mr Karounos. HIS HONOUR Q. You have heard what Mr Lane said. Have any of your colleagues with whom you might have discussed this question expressed any view. Don't tell me what the view might have been. Have they expressed any view about Mr Karounos. A. Yes, they have. HIS HONOUR: Mr Lane, do you ask me to pursue this matter further to ascertain whether that view is favourable or unfavourable? MR LANE: I think your Honour is obliged to. HIS HONOUR: If it were unfavourable, you would say that, regardless of what assurances this juror might give me, there is a risk of

prejudice to her role in the trial. MR LANE: Yes. That's why we suggested your Honour ask that particular question.

HIS HONOUR Q. I want to ask this question in a general sort of way. When people have expressed opinions about somebody else, they often fall into one of three categories: They said something adverse, something critical, they said something perhaps praising and positive, or they may have said something which is quite neutral. Turning your mind to those three sorts of categories, did these comments fall within one of those three categories. A. It wasn't neutral, and it wasn't a positive response. Q. Are you telling me that these comments were critical of Mr Karounos. A. They said it in a joking manner, but they weren't like pointing the finger or anything, but it was in a joking manner that they were critical, yes. Q. You say that, despite those comments, you still feel that you can discharge your duty as a juror and bring an unprejudiced mind to your responsibilities. A. Yes, I do. Q. But, in doing so, you would have to put out of your mind, or put into the basket for rejection, any such critical comments that you have heard, is that what you are saying to me. A. Yes.

HIS HONOUR: Do you want me to pursue this any further with the juror, Mr Lane? MR LANE: No. HIS HONOUR: Is there anything you would like me to pursue? ACCUSED: I wonder whether you could ask the juror whether this subject has been discussed with any of the other jurors prior to her coming into court this morning. HIS HONOUR Q. I think that's a sound point. Have you discussed your concerns, that have brought you into court to speak to me know, with other members of the jury. A. No. I just handed the note to the foreman. Q. This awareness of the department's dealings with Mr Karounos you haven't discussed with the jury either. A. No.

HIS HONOUR: Mr Sheriff's officer, is there somewhere private where you can take this juror for a moment while I have discussions with the Crown and Mr Karounos? SHERIFF'S OFFICER: Yes, there is. JUROR STACHARSKI LEAVE COURTROOM HIS HONOUR: Mr Karounos, it seems to me that this problem that has arisen with reference to this juror would entitle you to suggest that this juror be released from further involvement in the trial which would have the effect of the trial continuing with 11 members of the jury instead of 12. You would also have the right to submit to me that the whole jury should be discharged, that I should do what we lawyers call abort the trial. A more formal and correct expression is for me to discharge the jury and bring the trial to an end and direct that it recommence at some other stage. Having regard to what the juror has said, and in particular with reference to the last matter of enquiry which I followed through at your suggestion, it seems to me to be unlikely, although I would want to hear from you and Mr Lane, that I would abort the trial and discharge the jury. It is possible, and I could hear from you on that subject and hear from Mr Lane. What seems to me is more likely is that I could be persuaded that that particular juror should be excused from further involvement in the trial, which would have the

effect of the trial proceeding with 11 as opposed to 12 jurors. Do you have any applications to make to me? ACCUSED: It is a matter that obviously catches me by complete surprise."

The Crown Prosecutor intimated that he did not see any impediment to the juror continuing to sit, she having, for the time, been segregated from the other jurors.

The appellant sought and was granted a short adjournment to consider his position.

After the adjournment the appellant had this to say to the learned trial judge:- "ACCUSED: There are a number of concerns. Perhaps if I can raise them with your Honour. The comments obviously made from the juror appear to be less than favourable to myself. However, the seed of negative nature has been planted in the mind of the juror and my concern is that seed may surface or germinate at a later stage, particularly as these comments seem to relate to Mr Hodby and issues that would normally have some difficulty in understanding what it would have to do with departmental relations, in any event. Whilst the juror feels she may not be influenced by what she has heard, she may, I emphasise the word 'may', upon hearing evidence from Mr Hodby, form a view that colours her understanding of that evidence. There also remains the risk that subconsciously she may let slip through the duration of this trial comments made to her from other jurors. In the time I have had to consider the matter, because of all these concerns, I believe the juror should be discharged. If your Honour is mindful of discharging the juror I would ask that she be instructed not to make any comments to any other jurors about this subject for the duration of this trial. As to the balance of the jury, if it is your view the trial can proceed with the 11 remaining jurors, I will be content to be guided by you on that."

The learned trial judge then ruled that the trial proceed with the twelve jurors, subject to him first cautioning Ms Stacharski not to discuss the topic which had been ventilated with her. He said that, whilst he appreciated the appellant's concern, he felt that he could place weight upon her assurance that she could discharge her duties in accordance with her oath. He commented, "I do not see, in the circumstances, that there is any real risk that she will not be able to discharge her responsibility as a juror in this trial".

In Reg v Gough [1993] UKHL 1; (1993) AC 646 Lord Goff expressed the view that the test to be applied in assessing any question of potential bias in relation to a jury was whether the circumstances gave rise to a real likelihood that a juror, or the jury, might be biased. At page 670 of the report His Lordship seems to equate that formulation with the formulation of whether the circumstances were such that a reasonable person would think that there was a real likelihood that the juror or jury would not fairly determine the relevant question on the basis of the evidence and arguments adduced. He opined that the two formulations were consistent, provided that the expression "real likelihood" is understood as meaning a real likelihood, or real danger, of bias. Gough was, of course, a case in which an undesirable situation had become apparent after a verdict had been returned and an accused sentenced.

This question was revisited by the High Court in Webb and Hay v The Queen [1994] HCA 30; (1994) 122 ALR 41. The English test was rejected by the High Court in favour of the formulation that the true test is whether the relevant circumstances give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or jury will not discharge his, her or its task impartially. "It is the court's view of the public's view, not the court's own view, which is determinitive."

In the present case it seems to me that the initial concerns articulated by the appellant to the learned trial judge fairly expressed the view which would inevitably have been come to by any fair minded and informed member of the public. The essential problem was that prejudicial statements concerning the appellant had been planted in the mind of the juror by other persons with whom she worked - who were, themselves, responsible public service officers involved with the enforcement of industrial prescriptions. I find it impossible to dismiss the obvious possibility that, even subconsciously, this could well have influenced the thinking of the juror in a manner impermissibly adverse to the appellant. Indeed it is apparent that, despite her ultimate assurance to the learned trial judge, the juror initially raised the matter because she, herself, entertained misgivings. It seems to me that the inherent problem was well summed up by the appellant himself in his submission to Wilson DCJ, which I have above reproduced.

I am of opinion that the juror ought to have been excused from further participation in the case.

That difficulty was, of itself, of considerable importance, but it was compounded by the further problem that, later in the trial, it became apparent that the juror Haskett had three potentially embarrassing relationships. It emerged that his brother Peter was a senior officer of the LSC who had been involved with the Karounos file when legal aid was terminated, his sister Christine was employed within the Police Complaints Authority to whom Hunt had made complaints related to the police investigations into the very matter the subject of the trial, and a more distant relative (a Mrs Jean Haskett) was said both to have been a Hodby "victim" and also a witness named on the Hodby information. There was some further suggestion that the juror Haskett had been seen outside the court, separately from the jury, at a time when his brother was also in the general vicinity.

These matters were raised by the appellant with the learned trial judge on 30 November 1993, when the former sought to subpoena Peter Haskett. The point arose incidentally when an issue was debated as to whether the subpoena ought to be set aside. The appellant told the learned trial judge that he had been making enquiries over the then last three weeks and had finally pieced together the scenario as I have above recited it.

The following dialogue took place between the appellant and Wilson DCJ:- "HIS HONOUR: It may be that I would want to know some further

information about all that and it may be that Mrs Simpson would also. When do you say this information first came to your notice? ACCUSED: In snippets and only in snippets recently and in what little time I have had available over the last few weeks I have tried to make inquiries to either dispense with or substantiate that and it was only recently that I have had enough confidence to believe that the information may be true and correct that I am raising it now with your Honour. HIS HONOUR: When do you say it first came to your notice that Mr Haskett's brother is a serving member of this jury? ACCUSED: I first heard of it possibly three weeks ago, when the name Haskett rang a bell. It was at that time that I first heard of it and in what little time I have had in between, given the rate of progress of this trial, I have tried to make my own inquiries to confirm or deny various connections. HIS HONOUR: There is nothing further you can tell us at this stage? ACCUSED: There is nothing more I can say."

To some extent the debate which ensued was complicated by and intertwined with a wider issue as to the desire of the appellant to subpoena Peter Haskett and have him produce LSC documents.

On 3 December 1993 Peter Haskett attended at court with his counsel. He was not initially called as a witness, but his counsel intimated, inter alia, that he conceded that:- . his brother was a juror . he had had some involvement with the appellant's legal aid file . his sister Christine had been employed within the Police Complaints Authority . he did know of a Mrs Jean Haskett as a relative, but did not know whether she was a "Hodby victim" . he had had a casual conversation with his juror brother, some time in November, concerning family Christmas arrangements, in the course of which some mention was made of the length of the trial. However, nothing further had been discussed about the trial.

The learned trial judge permitted Peter Haskett to be called and he was cross examined by the appellant. That process did not elicit any relevant information beyond the above summary.

The appellant sought to subpoena the Commissioner of Police, inter alia, to verify the relevant employment of Christine Haskett, but he was out of the State. The Crown Prosecutor sought to dismiss that attempt as being a "fishing expedition".

After some discussion arrangements were made for Christine Haskett to swear an affidavit, she then being employed in Sydney. Such an affidavit was later received. In it Ms Haskett said that she had a vague recollection of a complaint being received by the Authority from Hunt, but she professed no further recollection of it and said that she had not communicated anything concerning it to her brother, the juror.

When asked by the appellant for advice as to the test for a mistrial the learned trial judge essentially referred the appellant to the notes on that topic contained in Lunn, "Criminal Law - South Australia". He concluded by observing:- "I may be now alluding to the particular circumstances of the Haskett matter, but it is one thing for it to be a fact that one Mr Haskett is with the Legal Services Commission, when may have had dealings with you and applications made by you. It is another thing to establish that Mr Haskett's brother is on the jury. It is another thing to establish that a Miss Haskett, the sister of the two Haskett men, is on the Police Complaints Authority committee which may have received a number of complaints, considered to be genuine or mischievous, by you or people associated with your companies, criticising police personnel and persons associated with the prosecution. It is quite another thing to say that there is a reasonable possibility or reasonable apprehension on the part of right-thinking members of the community that a juror has been biased or has been unable to discharge their proper function. It might be

otherwise if there were some evidence or some apparent likelihood that the Haskett brothers communicated, one with the other, improperly, in breach of a statutory obligation that may rest with Mr Peter Haskett. It might be otherwise if it was likely that, or could be said to be reasonably possible, that Miss Haskett would breach her oath of secrecy and disclose to her lay-brother, that is her non-legal practitioner brother, the juror, information that she has received when she was apparently a member of the tribunal. I haven't reached any concluded views on that matter. I am not called upon to do so as yet. It is over to you to decide whether you are making any application for a mistrial, and maybe it is premature, it probably is, to make any final decision about that until the question of an affidavit or statutory declaration has been determined and until you and prosecuting counsel and I have had an opportunity to read the affidavit or statutory declaration that is produced."

The matter again arose for consideration on 7 December 1993.

At that time the appellant sought an adjournment both because of his alleged health situation and also so that he could retain counsel to make applications in relation to "the Haskett matter". The Crown Prosecutor opposed the adjournment.

After hearing some argument the learned trial judge refused the adjournment and directed the defence case to proceed. A facsimile copy of the Christine Haskett affidavit was received on 8 December 1993. On 10 December 1993 the appellant tendered a written submission concerning the Haskett issue. This, in effect, purported to ask questions of the learned trial judge and sought to ascertain whether there was some aspect known to him (to which it was said that he had made earlier oblique reference) which could be revealed to those at the bar table. The appellant reiterated his request for an opportunity to have a proper submission put by counsel.

The appellant protested that the matter had arisen at a late stage, he did not understand the "intricacies of law involved" and he was unable to cope. He drew attention to the presence of both Haskett brothers outside the court on the preceding Friday. He applied, in effect, for a mistrial, but said that it was beyond his competence to put detailed arguments. The Crown opposed both the application and any suggestion that the juror Haskett be questioned - a possibility tentatively raised by the learned trial judge. Wilson DCJ mused aloud that such a course might prove counter productive, in the event that the juror felt that he was being accused of inappropriate conduct. The Crown Prosecutor supported that view.

The learned Judge thereupon refused the application and declined to respond to the appellant's request that he indicate what had earlier been exercising his mind in that connection.

One must, of course, studiously avoid resort to wisdom borne of hindsight; and also make due allowance for the impact of the problems which, seemingly, were arising with the trial almost from day to day. However, on a careful appraisal of the evidence, it seems to me that the learned trial judge permitted his growing frustration in relation to the trial generally to cloud his judgment.

As he himself initially recognised when the Haskett situation was first identified, that situation necessarily begged important questions and put in issue the appropriateness of proceeding with the trial with the empanelled jury. To say the least, the situation revealed was, on its face, highly undesirable. It seems to me that, having become aware of it and the objections of the appellant, the learned trial judge was bound himself to take the initiative, investigate the problem and, as best he could, ascertain the extent of any potential prejudice to the person accused.

In my opinion, he ought to have questioned the juror. I remain quite unconvinced that this could not have been done without prejudicing the appellant. The failure to pursue such a course necessarily gave rise to a conclusion that a fair and informed member of the public would necessarily apprehend or suspect that the situation identified would result in the jury, or a juror, not discharging its or his task impartially.

This, either taken alone, or combined with what transpired with the juror Ms Stacharski, clearly gave rise to a mistrial. It was an unacceptable mistake to attempt to salvage a trial which could not properly be salvaged, however great was the temptation to do so.

In my view, that consideration seals the fate of this appeal.

However, lest I be considered incorrect in that assessment, it is desirable that I advert to some other issues raised by Mr Wells QC. I will not refer to all of them.

He sought to attack certain specific directions given by the learned trial judge as constituting significant errors of law. I will advert to them successively.

First, it was complained that, although the usual direction was given as to the right of the accused to remain silent, nevertheless the learned trial judge did not stress the problems which beset the appellant as an unrepresented accused and the fact that they ought not to attempt to assess his character and demeanour from their observations of him at the bar table. To do so would, in an important respect, tend to negate his right to silence.

What the learned trial judge did say was:- "The accused did not give sworn evidence in his defence, and the accused called no witnesses for the defence. He did, you will remember, tender a number of documents during the prosecution case. It was the accused's legal right not to give sworn evidence. It is the law today that an accused person has the right to do one of two things at his trial. First, he may remain completely silent, leaving it up to the prosecution to prove the case against him, if they can. There is no obligation upon an accused person to enter the witness box and give evidence. Secondly, an accused can choose to go into the witness box and give evidence on oath, and be subject to cross-examination; and an accused, whether or not he gives evidence on oath, can call witnesses in his defence, and/or tender exhibits. This accused, George Karounos, chose to take the first course. He remained silent. By doing so, he exercised a right which the law has given him. You should bear steadfastly in mind that the accused is not required to prove his innocence. His silence can never displace the onus (or burden) which is on the prosecution to prove his guilt beyond reasonable doubt. A failure to offer an explanation does not, of itself, prove anything. Nor does it, in any strict sense, corroborate or support and confirm other evidence, but the failure of an accused person to contradict, on oath, evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true, that is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies, or plug up the gaps in it. To explain this another way; when, as in this case, an accused fails to accept the opportunity to place before the court evidence of facts within his knowledge which, if they exist at all, would explain or contradict the evidence against him, you may more readily accept that evidence which is against him. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. It is because doubts about the reliability of witnesses, or about the inferences to be drawn from the evidence, may be more readily dispelled in the absence of contradictory evidence from the accused, if he could be expected to give or call it. Hypotheses (or explanations) consistent with innocence may cease to be rational or reasonable, in the absence of evidence to support them, when that evidence, if it exists at all, must be

within the knowledge of the accused. Of course, you should remember that the accused may have reasons for not giving evidence other than that the evidence would not assist his case. You should bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. When there are facts peculiarly within the accused's

knowledge - and you may well consider that there are in this case, such as whether the alleged 'secret meetings' were held, and what was said at them, whether an agreement was entered into with Mr Hodby or not, what the terms of the agreement were, whether the terms of that agreement were communicated to and accepted by Barbara Hunt, what the accused knew when the mortgage over Campbell Park to the extent of $520,000 was executed, and whether he knew he was being dishonest, and what his motive may have been - you may take into account the failure of the accused to give evidence, because that failure is capable of assisting you in the evaluation of the circumstantial evidence before you from which you are asked to infer that the accused was party to an agreement (or plot) that was part

of a larger dishonest scheme, that he knew that he and his co-conspirators were acting dishonestly, and he knew that their

conduct might result in economic prejudice to the lenders, members of the public - Hodby clients. There is a fine line of distinction between drawing the inference of guilt from silence (which is not permissible) and drawing an inference otherwise available more safely (which is permissible) because the accused had not supported any hypothesis (or explanation) consistent with innocence from facts perceived to be within his knowledge. In determining whether the prosecution has discharged the onus (or burden) of proof to the requisite standard (beyond reasonable doubt), I tell you that it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis (or explanation) which is consistent with innocence. So it is that the failure of the accused to give evidence is not, of itself, evidence. It is not an implied admission of guilt by conduct. It cannot be an admission of guilt by conduct, because it is the exercise of a legal right which the accused has; namely, to put the prosecution to its proof. When, as here, the accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course, and it is not evidence of either guilt or innocence. Silence on the part of the accused at this trial cannot fill in any gaps in the prosecution case. It cannot be used as a makeweight. It is only when the failure of the accused to give evidence (for example, as to whether or not an agreement was entered into, and as to his state of mind) is a circumstance which may bear upon the probative value of the direct and circumstantial evidence which has been adduced by the Crown, and which you are required to consider, that you may take the accused's failure to give evidence into account. You may take it into account only for the purpose of evaluating the evidence. The accused, if anyone, can have explained what, if anything, occurred in the Gold Members' Room, and what was in his mind at the relevant times. He was in a position to deny, explain or answer the evidence against him. His failure to give evidence is capable of being seen as strengthening the prosecution case by enabling you, in the absence of any explanation by the accused, to accept more readily the inferences which the prosecution contended as the only rational inferences from the evidence. I repeat that the accused is not bound to give evidence, and that the onus of proof remains on the prosecution to prove guilt beyond reasonable doubt. What I am saying to you is that, recognising those basic principles, it is nevertheless legitimate for you to have regard to the fact that the accused has given no evidence (or explanation) of the Crown case, apart from what he told the police, as a consideration to be taken into account making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear. The only version of the facts before you is that proved, if proof it be, by the prosecution witnesses and the documents. There is no evidence to support other scenarios."

In my opinion these directions cannot fairly be challenged, so far as they go. Indeed they do no more than state the commonsense of the situation. They also do no more than make the points that unchallenged evidence may more readily be accepted than that which is challenged on oath; and that there was simply no evidence before the jury other than that of the Crown witnesses, i.e. that no other scenario, consistent with some different situation, had been erected as reasonable possibilities.

Mr Wells QC was, however, on sounder ground when he criticised the direction of the learned trial judge concerning the answers given by the appellant to police questions, at a time years after the relevant events. The evidence reveals the following exchanges between the appellant and Detective Sergeant Gibb:- "... I said 'My name is Detective Sergeant Gibb and this is Detective Sergeant Griffiths. We are State police officers, Mr Karounos, attached to the Corporate Affairs Commission. I must inform you that this is a police interview and it's not to be confused with a hearing under the Corporate Affairs Commission's powers. For the purpose of identification, would you please state your full name and address?' He said 'George Karounos, 59 Thomas Street, South Plympton.' I said 'Do you have a second Christian name, Mr Karounos.' He said 'I do not.' I said 'I now wish to ask you a series of questions about your business involvement with a man named Ross Hodby, your involvement with the companies Krakat Pty Ltd, Domotix Pty Ltd, Karta Pty Ltd and Vimited Pty Ltd and your involvement with the purchase of a property at Meningie called Campbell Park. I must warn you that you are not obliged to answer any of my questions and that if you do so your answers will be recorded and may be used later in evidence. Do you understand what I have said?' He said 'I do.' I said 'Do you intend to answer any of my questions?' He said 'On the advice of my solicitor, I do not intend to answer any questions. I understand that irrespective of what answers I give to your questions it is your intention to lay charges against me and that you will not review that decision. I understand that the matters to which your questions relate are now over 43 months old and notwithstanding that you have had ample opportunity to do so, at no time throughout those 43 months have you or any other person directed any question or enquiries to me in respect of those matters. I, of course, deny any charges. I believe that the decision to charge me is politically and otherwise motivated and that the laying of charges against me are an abuse of process, accordingly I repeat on the advice of my solicitor I don't wish to answer any of your questions. I said 'Thank you. Mr Karounos, I'm now reporting you for the common law offence of conspiracy to defraud in relation to the purchase of a property known as Campbell Park by Karta Pty Ltd in 1986 and the subsequent mortgage of $520,000 granted to clients of a Mr Hodby. You will receive a summons in the future to attend court. Do you understand what I have said?' He said 'I do.' I said 'That concludes the interview, however I will require some personal particulars from you after the interview. Thank you.'"

The learned trial judge commented upon that situation in these terms:- "So it is that I explain to you that it is the law that the mere

refusal by an accused to answer police questions relating to the alleged commission of an offence, or to advance an innocent explanation of the circumstances which cast suspicion upon him, affords no basis for an inference of his guilt. But it is also the law that, if an accused does not exercise his right of silence in an unreserved fashion, and chooses to respond selectively to questions asked or allegations made (which was not the case here) or chooses (as was the case here) to make a statement at the same

time as exercising his right to decline to answer questions, his conduct (and, specifically, what he does choose to say) is evidence to which you may have regard and from which, according to the circumstances as you find them to be on the evidence, an inference may be drawn that he had a consciousness of guilt."

In my opinion that was not a fair representation of the true situation and must have operated very prejudicially against the appellant. It is firmly to be borne in mind that, in reality, the appellant was simply indicating that he had been advised to exercise his right of silence and was making a formal complaint as to what he saw as the unfairness of what had occurred long after the alleged event. How it could be said that any inference of consciousness of guilt could properly and fairly be said to arise in the circumstances is impossible to see. This was, I consider, a serious misdirection, because the effect of it was to run counter to the concepts discussed by the High Court in Petty v R (1991) 173 CLR 95.

Indeed, quite a contrary proposition arises. As Mr Wells QC argued, a failure to make some appropriate indignant response in some circumstances, when one was called for, could possibly have been construed as an admission (cf R v Christie (1914) AC 545. See generally on this aspect Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217.)

Complaint was further made by the appellant in relation to the direction of the learned trial judge with regard to the so-called "co-conspirator's rule". That direction (as far as relevant for present purposes) was expressed as follows:- "The co-conspirator's rule, in its most basic form, operates by way of exception to what we lawyers know as 'the hearsay rule of evidence', which excludes hearsay evidence (that is to say, the rule of thumb which excludes oral evidence by a person of what another said or did outside of the presence of the accused or documents or things in documentary form of which the accused was not the author). The co-conspirator's rule provides that any spoken or written statement or act or document of a co-conspirator said or done or brought into existence in furtherance of (that is to say, in the transaction of) the conspiracy and during its currency is admissible (and may be received in evidence) against each other co-conspirator as evidence of the truth of any assertion or implied assertion contained in it. It may go to prove (by inference) the existence of a common plan, to prove (by inference) what was done in furtherance of the plan, and, in conjunction with other evidence (if any), to prove the accused's participation in it. This may only happen, ladies and gentlemen, if a foundation for the reception of this evidence is laid by independent proof of the participation in the conspiracy of the person against whom this evidence is sought to be admitted (in this case, the accused). The co-conspirator's rule by definition supplements the proof of conspiracy by other means. This is because the accused's complicity in a conspiracy must be established by other means before the court can reply upon evidence adduced by the co-conspirator's rule. I tell you, ladies and gentlemen, that there is reasonable and independent evidence (if you accept it as true and reliable) in the form of Mr Hodby's evidence of the so-called 'secret meetings' and

in the form of the evidence of Mr Doubell, which provides some independent support for the evidence that Mr Hodby and the accused were together alone in the Gold Members' Room on the occasion of one of the alleged 'secret meetings'. There is further reasonable evidence in the form of Mr Hodby's evidence, supported, as that is, by the evidence of Mr McGlashan and Mr Opie, to a degree, evidence which is independent of the acts or statements of the alleged con-conspirator, Mrs Hunt, that the accused was present at the office of Chesser Street when various documents were executed, from which, in conjunction with the evidence of the alleged 'secret meetings', it could be inferred that the accused participated in the alleged conspiracy. ...

To summarise the position regarding the co-conspirator's rule and applying it in this trial, it is sufficient for me to say (and emphasise) that, where an accused is charged with conspiracy, as the accused George Karounos is here, evidence in the form of acts done or words uttered or documents signed by an alleged co-conspirator (for example, Mrs Hunt or Mrs Karounos) will only be admissible to prove (and can only be used by you as proof of) the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words were uttered (or written) or the documents were signed by a participant in furtherance of its common purpose, and there is reasonable evidence, apart from the actual words or documents, that the accused was also a participant. I tell you that, if you believe the evidence of Mr Hodby about the 'secret meetings', and the evidence of Mr Doubell about the accused and Mr Hodby being in the Gold Members' Room, and if you accept what the Domitix minutes indicate, in conjunction with the evidence of Mr Hodby and Mr McGlashan about the accused being present in Chesser Street, then you can apply that principle in the manner that I have discussed."

It will at once be seen that the learned trial judge did that which the High Court said was not to be done. In Ahern v R [1988] HCA 39; (1988) 165 CLR 87 at 100-104 it was said:- "The question remains whether the trial judge or the jury should ultimately determine the existence or otherwise of reasonable independent evidence of the participation of an alleged conspirator as a ground for the use against him of evidence of the acts and declarations of other conspirators which took place in his absence. Obviously the matter must be one for the determination of the trial judge in the first instance, for the evidence of acts and declarations ought not to be admitted at all for that purpose if no basis can be shown for its admission. But controversy exists over whether, even after the evidence has been admitted, the jury should be instructed that it is for them to determine whether there is

reasonable independent evidence of participation and that if there is not, they ought not to use the evidence of the acts and declarations of the other conspirators for the purpose of deciding that issue.

In United States v Dennis, Judge Learned Hand expressed the view: 'The law is indeed not wholly clear as to who must decide whether such a declaration may be used; but we think that the better doctrine is that the judge is always to decide, as concededly he generally must, any issues of fact on which the competence of evidence depends, and that, if he decides it to be competent, he is to leave it to the jury to use like any other evidence, without instructing them to consider it as proof only after they too have decided a preliminary issue which alone makes it competent. Indeed, it is a practical impossibility for laymen, and for that matter for most judges, to keep their minds in the isolated compartments that this requires.' One might add that the difficulty for a jury is exacerbated if the standard of proof upon which they are to decide the preliminary issue differs from the standard of proof upon which they are ultimately to decide the guilt or innocence of the accused. In Carbo v United States this difficulty was referred to: 'The jury is already concerned with the evidence - weighing standards involved in proof beyond a reasonable doubt. To expect them not only to compartmentalize the evidence, separating that produced by the declarations from all other, but as well to apply to the independent evidence the entirely different evidence-weighing standards required of a prima facie case, is to expect the impossible.'"

Having referred to dicta illustrating the opposite approach, as applied in Canada, the High Court continued:- "... at the risk of repetition it is instructive to set out a passage from the judgment of Young CJ in Minuzzo and Williams (1984) VR at 431 which illustrates the complexity which must necessarily be introduced when this approach is adopted in charging a jury: 'An accused person is entitled to have his case considered upon the evidence admissible against him. In a conspiracy case such as the present there are three classes of evidence to be considered, namely (a) evidence of the acts and declarations of the accused whose case is being considered, (b) evidence of the acts and declarations of co-accused from which the conclusion that there was a combination might be drawn, and (c) acts and declarations of co-conspirators done or made in pursuance of the combination. Most evidence which falls within category (b) will also fall within category (c). Those two categories are not intended to be either co-extensive or mutually exclusive. Evidence in category (b) may be used in order to establish the conspiracy ... Evidence in category (c), which is sometimes described as evidence in furtherance of the conspiracy, may only be used against an accused whose case is being considered once there is some evidence that that accused is connected with the conspiracy. But it is not necessary that the jury should be satisfied of the guilt of the accused before they can use evidence of category (c). Satisfaction of guilt of course requires satisfaction beyond reasonable doubt. But evidence falling into category (c) can be used against an accused once prima facie proof of the accused's connection with the conspiracy has been given ... The prima facie evidence which is here referred to is evidence described as directly admissible against the accused connecting him with the conspiracy alleged. By evidence directly admissible against the accused is meant in this context evidence other than the acts and declarations of the alleged co-conspirators not in the presence of the accused. Whether there is sufficient evidence directly admissible against an accused connecting him with the conspiracy to make evidence in category (c) available to be used against him is a question for the jury.' Consideration of that carefully worded and clearly expressed passage as a whole inevitably leads one to doubt the proposition that the sufficiency of evidence of participation directly admissible against the accused is appropriately a question for the jury. Nothing is more likely to discredit and undermine the institution of trial by jury than a requirement that a trial judge explain to the jury matters of law in terms which are unlikely to be understood or retained by them. ... The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity."

What the learned trial judge did was impermissibly to leave to the jury that which it was his responsibility to determine - with the resultant potential dangers adverted to in Ahern. I agree that, apart from the confusion engendered, there was introduced to the jury, in a most undesirable manner, the concept of "reasonable doubt"; and that they might be left with the impression that - as Mr Wells QC put it - the co-conspirators rule was a threshold of proof which could give enhanced weight to any evidence that crossed the threshold. He proceeded to illustrate that point by reference to several aspects of the evidence, which need not here be reiterated.

This also, constituted a serious misdirection.

Finally, criticism was levelled at the following specific directions given by the learned trial judge:-

"The accused said in his address to you: 'I suggest to you also that it is not the case Mr Hodby could not remember, it was a case of non-existence.' That, you may think, when taken in conjunction with the later assertion that, as far as Mr Hodby was concerned, it was a case of 'out and out lying', constitutes a clear assertion to the effect that 'the secret meetings' did not take place and that no agreement was reached, whether 'reluctantly' or otherwise. I must tell you that there is no evidence to the effect that 'the secret meetings' did not take place, or to the effect that no agreement was reached. The prosecution evidence to the effect that they did take place, and that an agreement was reached, has simply not been contradicted or explained. ... I tell you that the suggestion made by the accused in his address to the effect that Mr Hodby was telling lies, in particular about the alleged 'secret meetings' and the agreement reached at the second 'secret meeting', is not evidence that the meetings did not take place, and that no agreement was reached. There was simply no evidence to the effect that the 'secret meetings' were not held, or to the effect that, to suggest that they were held and that an agreement was reached, was a lie. Mr Hodby's evidence, and that given by Mr Doubell, and that contained in the Domitix minutes (the Agenda) remains uncontradicted and unexplained."

In fairness, however, this must be read together with what the learned trial judge said some thirty pages later in his summing up, namely:- "Finally, ladies and gentlemen, I want to say some things to you which I trust may be of assistance to you in actually arriving at a verdict. These are matters for you, ladies and gentlemen, and they are for you, and for your decision only. If you disbelieve Mr Hodby's evidence, in particular, regarding the facts appertaining to the alleged 'secret meetings', or that they took place when and where they are alleged to have taken place, if you disbelieve Mr Hodby as to what was agreed, then you should bring in a verdict of not guilty. If you conclude that it is reasonably possible that Mr Hodby was not telling the truth when he testified as to what was agreed at the so-called 'secret meetings', then you should find the accused not guilty."

The vice in these directions is that, taken at face value, they can be taken both as implying the existence of an onus on the part of the accused to adduce contrary evidence and also undermining the established principle that the absence of contrary evidence does not mean that the Crown version must automatically or necessarily be accepted (R v Towner (1991) 56 A Crim R 221, Calides v The Queen (1983) 34 SASR 355).

It is true that, elsewhere in the summing up, the learned trial judge gave correct general directions as to onus of proof, but the difficulty with which I remain is that it may well be that the jury would have construed the above specific directions as some qualification of the general principle. Given their specific context I consider that they amounted to a serious misdirection.

It follows then that there were specific misdirections which, in their totality and taken alone, must inevitably lead to the conclusion that the appellant has suffered prejudice in a manner which rendered the trial unfair.

For all of the above reasons I am compelled to the conclusion that this appeal must be allowed. I arrive at it with considerable reluctance, because of the obvious considerable expense of a new trial and the problems which will inevitably beset it; and also because the Crown case against the appellant is patently very strong. However, in view of the defects attendant upon the trial, there would appear to be no alternative. The trial process patently miscarried.

I would accordingly quash the conviction of the appellant and remand him for retrial.