Ahern v The Queen

[1988] HCATrans 67

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B48 of 1987

B e t w e e n -

JOHN WAYMOUTH AHERN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

DEANE J

DAWSON J

Ahern

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 19 APRIL 1988, AT 11.59AM

Copyright in the High Court of Australia

C2T23/l/AC 1 19/4/88

MR R.A. MULHOLLAND, QC:  May it please the Court, I appear

with my learned friend, MR A.J.H. MORRIS, for the

applicant. (instructed by G1lshenan & Luton)

MR J.A. GRIFFIN, QC: If the Court pleases, I appear with

my learned friends, MR P. FLANAGAN and MR J. SHEAHAN,

for the respondent. (instructed by the Director

of Prosecutions)

MASON CJ:	Yes, Mr Mulholland.
MR MULHOLLAND:	Your Honours, before commencing perhaps I can hand up our outline.

MASON CJ:  Yes. We have read the judgments in the Court

of Criminal Appeal and we are, therefore, familiar
with the issues which arise in the case, Mr Mulholland.

But there ii, perhaps, one question we ought to ask you at the outset and that is this: is your

client still serving the sentence imposed on him

or has he been released?

MR MULHOLLAND:  He has been released, Your Honour. He was

released on 28 July last on a home detention.

He was then placed on parole on 29 September and he remains on pars~e at the moment.

MASON CJ:	Thank you.
MR MULHOLLAND:	Your Honours, the applicant was charged with

conspiracy to defraud the Commonwealth; his trial lasted three months and he was convicted. At the

conclusion of the Crown opening the defence admitted
that the three persons named in the indictment,

Maher, Donnelly and Hurley, named there as fellow conspirators had conspired with one another. The

only question at Ahern's trial was whether or not

the jury was satisfied beyond reasonable doubt

that he was a party to the conspiracy.

(Continued on page 3)

C2T23/2/AC	2	19/4/88
Ahern

MR MULHOLLAND (continuing):  The charge involved a so-called

bottom of the harbour scheme and it is possible for

u~ to deal, particularly in view Your Honour the

Chief Justice's remarks, quite briefly with the facts.

There were 32 companies and 17 transactions. Each

of the companies was described in evidence as "target

companies," and had current year profits which, in

the ordinary course of events, would have led, after

the close of the relevant financial year, to a tax

assessment and tax liability'. Except for the activities

alleged to have constituted fraud on the Connnonwealth,

each of the target companies would have had assets

with which to satisfy any such tax debt when it became

due and payable.

It was not in dispute that Mr Ahern was involved

in those of the activities which produced the result
that the companies could not pay their tax debts when
they arose. But also, so were many other people, who

were accepted as innocently involved in varying

degrees and in various stages of those activities,

namely, solicitors, accountants and their clients;

the vendor's shareholders were all involved. The

critical additional element here which made this a

fraud was that, instead of any further steps believed

to prevent the tax liabilities arising being taken

by Maher and his associates, the companies were

simply disposed of, or, in the language of the trial,

instead of being treated, they were dumped.

That was done by a transfer of shares in the

target companies' two straws, as they were called:

straw purchases, straw directors, straw shareholders,

or simply straws; persons and companies of no

connnercial substance, and that is where the companies

went to. Those straws were obtained by Maher and

his associates through a person called Lloyd Faint

and through other persons procured by Faint,

a Mr John Stoneham Lane in New South Wales and a
Graham Spence in Victoria, Spence himself. being used

as a purchaser in the first two transactions.

(Continued on page 4)

C2T24/l/VH	3
Ahern
MR MULHOLLAND (continuing):	The prosecution case, then,

was to establish beyond reasonable doubt that
Ahern did not believe the target companies would

not come under tax liabilities, that Ahern knew that the companies were being dumped, these for

all intents and purposes being treated as the same.

The existence of the conspiracy between Maher,

Donnelly and Hurley was admitted and the only

issue for the jury - this is what it came down to -

was whether Ahern knew that the Maher organization was dumping the companies without treating them in

order to remove their liability to taxation.

Maher, of course, had his own organization.

Ahern was an accountant, practising in Brisbane

and also, as well as being an accountant in private

practice, operated through a company called Rocklea

Industries Pty Ltd which he used to promote and effect tax schemes which he devised and from which

he acquired certain knowledge. They had their

separate businesses and it was, we should add,

never seriously in dispute at the trial that the

prevailing atmosphere at the time in the 1970s

was that valid and successful schemes were

possible.

Ahern, who gave evidence at the trial, claimed

that that was the belief, namely, that some valid

scheme was being used that he held during the

relevant period.

Your Honours, in deciding the question as to whether or not Ahern had the requisite knowledge, the jury was invited to consider evidence not

admissible for that purpose.

(Continued on page 5)

C2T25/l/SH	4	19/4/88
Ahern

MR MULHOLLAND (continuing):  This, as we say, resulted from

a direction given at the conclusion of the Crown

prosecutor's opening speech and before any evidence

was called and again in the surmning up. There is

no room to question that the evidence the subject

of the direction was highly prejudicial to the

accused, .. as it was evidence of the fraud itself.

The Court of Criminal Appeal of Queensland, following

earlier authority in Queensland, unanimously held that

that amounted to a misdirection in law. However,

by a majority, Justices Thomas and Ambrose, with

Hr Justice Matthews, the presiding judge, dissenting,

dismissed the appeal on the ground that there had

been no substantial miscarriage of justice.

In summary, the Court of Criminal Appeal held

that the misdirection consisted in the trial judge

telling the jury that they should perform a two-stage analysis of the evidence; first they should consider

Ahern's acts and declarations, together with any

acts and declarations which he had authorized or

adopted, in deciding whether they were satisfied

prima facie that he was connected to the conspiracy.

MASON CJ:  Mr Mulholland, how was it that the trial judge

came to give a direction in terms of Victorian

authority rather than Queensland authority?

MR MULHOLLAND:  Your Honour, I think the be.st way of

putting it is that His Honour thought that the Victorian

authority and the Queensland authority could be

reconciled.

MASON CJ:  By adopting the Victorian authority?

MR MULHOLLAND:  Yes, Your Honour, but I think it is fair to

say that His Honour regarded - and indeed, as we

understand it, this has always been the contention on the other side - that they are not in conflict. The Victorian authority and the Queensland authority

are not in conflict. So His Honour, having been

referred to both Victorian authority and to Queensland

authority in effect believed himself to be applying

both, but in doing so the Court of Criminal Appeal held

that he was in error because they could not be

reconciled and that he should have followed the

Queensland authority.

(Continued on page 6)

C2T26/l/HS	5	19/4/88
Ahern

MR MULHOLLAND (continuing):  The second part of this two-

stage analysis, Your Honour, was that the direction

went on to tell the jury that assuming they were

so satisfied they should then go on to consider

the acts and declarations of other conspirators

done or·said in furtherance of the conspiracy,

though not authorized or adopted by Ahern, in

order to determine whether or not they were

satisfied beyond reasonable doubt as to his guilt.

This evidence, it was said, could be used

to decide whether or not Ahern was a "knowing

participant", was the way His Honour put it in

his dtrection: in other words, a member of the

conspiracy.

Your Honours, we would propose that the

applicant having succeeded in establishing that

there was a misdirection, to look at the way

Their Honours in the Court of Criminal Appeal

in Queensland, applied the proviso. The respondent

has, of course, raised by notice of contention

the question whether the Court of Criminal Appeal

was correct in its decision that it was a

misdirection. We would propose, subject, of

course, to Your Honours' wishes and to where

our submissions now take us, to deal with anything

said by the Crown by way of reply, if that is

needed.

MASON CJ:  Yes, that course is satisfactory.

MR MULHOLLAND:  Thank you. Your Honours, it was held

by Matthews and Thomas, Justices - see particularly

Mr Justice Matthews' judgment at the foot of

page 16 and the top of page 17 and Mr Justice Thomas

at the foot of page 27 and the top of page 28,

that the acts and declarations of other persons

which were neither authorized nor adopted by

nor known to the applicant, were not logically

probative that the applicant was a party to the

conspiracy and were not available to be used

by the jury to infer that the applicant had the

knowledge relied on by the prosecution to implicate

Ahern in the conspiracy.

However, Mr Justice Thomas held that the very circumstances that made the trial judge's

direction a misdirection, namely that the acts

and declarations of the other persons were not

logically probative - that the applicant knew

of such activities - meant that there had been

no substantial miscarriage of justice. This

was and, we submit, importantly, not a case in

which His Honour Mr Justice Thomas nor, for that

matter, Mr Justice Ambrose, found that the case

was an overwhelmingly strong one or that the

applicant's case was an overwhelmingly weak one

and so applied the proviso.

C2T27/l/SDL	6	19/4/88
Ahern

We would like to take Your Honours to

that part of Justice Thomas' judgment dealing with
tne proviso and it commences at page 536 of

volume 3. We can start with the second paragraph

under the "Proviso" heading:

This case was conducted so that at

all relevant stages the evidence of the

accused's own acts and acts authorised by

him were separately identified from evidence

of the acts and declarations of the co-

conspirators. It was not a case in which
declarations had been made by the other

conspirators implicating the appellant.

He goes on then to refer to a few pieces of evidence

which the Court of Criminal Appeal had been referred

to but accepts the fact and, indeed, this was

conceded on the appeal, that none of that was

relevant in order to prove Ahern's knowledge.

(Continued on page 8)

C2T27/2/SDL 7 19/4/88

Ahern
MR MULHOLLAND (continuing): His Honour then goes on, at

page 28:

Perusal of the record confirms that the

appellant's knowledge of the unlawful
ac~ivities of the other conspirators was the

true issue in the case. The jury could have

been under no misapprehension as to this

issue or as to the evidence that bore on

it. Any suggestion that the invitation to the jury to consider the issue of the accused's

participation in stages, and eventually

consider whether they were satisfied of it

beyond reasonable doubt might have caused

a different result to be reached by the jury

in this particular case is in my view fanciful.

He then refers to the the Victorian case of MINUZZO

and said, without stating at this point any reason:

the directions given in the present case
required at the end of the day the jury be

satisfied beyond reasonable doubt as to each

issue before convicting.

Then, at the foot of the page, His Honour says,

in the sentence which commences, "The vice":

The vice in the direction was that it did

not expressly direct the jury a?ainst using
evidence of the co-conspirators acts as
evidence that the appellant was a party to

the conspiracy.

In our submission, the vice is rather that the

jury was told that it could so use the evidence

and we would refer Your Honours particularly - - -

DAWSON J:  What sort of evidence are we talking about?

Can you give me some examples?

MR MULHOLLAND:  Your Honour, the best way of doing it is

to refer to the witnesses in the second category.

(Continued on page 9)

C2T28/l/ND	8	19/4/88
Ahern
MR MULHOLLAND (continuing): His Honour put to the jury	two lists.	we can take Your Honours to the

suunning up, which is at page 412 of volume 3, page 2906

of the record at the trial. His Honour gives the jury

_ a list of two ~roups of witnesses. The first group

of witnesses who spoke of the acts and declarations of

Ahern, and the second group who did not. In that

second group: Greta Spence, Scholtz, Brown,

Graham Spence, Rhonda Spence, Keidan and O'Keefe

were all straws - straw purchasers and straw secretaries.

Now, those witnesses gave evidence of having been

recruited; recruited by Faint and having come to

Queensland;there met Maher and Donnelly, having gone to the Gold Coast,where Maher's organization was based

and there signing a great many documents without knowing what they were signing. Not having met -

apart from Spence, not having met Ahern, but having

gone ther~ having met these alleged conspirators and

themselves being of no coIImlercial substance. That

is the evidence they gave: that they knew nothing

about what they were doing.

DAWSON J:  They signed documents.

MR MULHOLLAND: Just signed documents - a document signing

exercise, I think, is the way it was described,

Your Honour.

WILSON J:  Mr Mulholland, who did you say recruited them?

(Continued on page 9)

C2T29/l/JM	9	19/4/88
Ahern

MR MULHOLLAND:  They were recruited by Lloyd Faint in the

first instance and he, apparently, acted through

an intermediary in New South Wales - a man named

Lane, and in Victoria he acted through a man called

Spence and Spence, himself, was used as a purchaser

for the first two transactions. That is the sort

of evidence that they gave.

DAWSON J:  And do you say that was not admissible against

the applicant?

MR MULHOLLAND:  No, Your Honour, not admissible in order

to prove him to be a member of the conspiracy.

DAWSON J: Well, it was admissible to prove a conspiracy

MR MULHOLLAND:	Yes, Your Honour.
DAWSON J:	- - - and if he was found to be a member of that

conspiracy then the evidence would be admissible

against him in that sense.

MR MULHOLLAND:  Your Honour, the conspiracy was admitted.

At the commencement of the trial the conspiracy

alleged by the Crown was admitted by the defence.

That being so there was ever only one question

for the jury to determine: whether or not they

were satisfied beyond reasonable doubt that Ahern

was a party to the conspiracy.

DAWSON J:  But you could only determine that by looking at

what liis co-conspirators did - or in part, what

his co-conspirators did and said.

MR MULHOLLAND:  No, with respect. The matter never went

to the jury on the basis of an approach of deciding
whether or not there was a conspiracy by reason

of looking at the separate acts of the conspirators.

His Honour expressly did not put it to the jury

on that basis because he said, quite early in the

case, that it was not that sort of case. It was

not the sort of case, in order to decide whether	or not there was a conspiracy, that you look at
the separate acts of the individuals and decide
by looking at them whether there was such a coincidence
of time, character and so on as to enable one to
infer a conspiracy, so it was never put to the
jury oh that basis.

(Continued on page 11)

C2T30/l/AC	10	19/4/88
Ahern

DAWSON J:  I find that - perhaps it is my fault - hard to

understand. The applicant said he was not a party to this conspiracy because, in the end, he did not

know what it was all about.

MR MULHOLLAND:  Yes, Your Honour.

DAWSON J: Well, to find out what it was all - the first step

is to find out what it was all about and then to look

at whether he knew about it, is it not?

MR MULHOLLAND:	Yes, certainly, but in -
DAWSON J:	You can only find out what it was all about by

looking at what these people did and said.

MR MULHOLLAND:  Yes, Your Honour. There was not dispute that the

evidence was admissible in order to show the nature or the terms and the existence of the conspiracy but not to show that Ahern was a party in the conspiracy.

DAWSON J:  Why not, if that is the inference that one draws

from all of the evidence.

MR MULHOLLAND:  Your Honour, can I answer that by saying that

it was never put to the jury on that basis.

DAWSON J: Well, it may not be but I am just trying to discover

where we are.

MR MULHOLLAND:  Yes, well, Your Honour - - -

DAWSON J: Perhaps I should not interrupt you at this date

but sometime you might tell us what you say should

have been put to the jury.

MR MULHOLLAND:  Well, the only use that it could be put was in

order to show the existence of the conspiracy which

was admitted between Maher, Donnelly and Hurley and

the terms of it, the sort of fraud that it was.

WILSON J:  But that statement that you make is based on the

fact that, knowing the evidence, there was nothing

in it that did yield an inference adverse to your

client. If it did yield an inference that Mr Ahern

was involved, then surely it would be admissible for

that purpose.

MR MULHOLLAND:  If one is able to conclude that, Your Honour,

from it.

WILSON J: Yes. In a sense, I think, you are at cross-purposes

because your assumption in answering my brother's

question is that - and it may well be right - there
was nothing adverse to Ahern in the evidence that you

have related about the conspiracy.

C2T31/l/SH	11	19/4/88
Ahern
MR MULHOLLAND:·	Yes.	I suppose there are really two

aspects to it:  whether theoretically one is able

to look at the acts of others in order to decide whether the accused is a party to the conspiracy and the other aspect to it is that evidence must,

of course, be logically probative which, in this

case, there was no dispute about, it not being suggested

that it was logically probative in order to prove

that Ahern was a knowing participant.

DAWSON J:  I am not sufficiently familiar with the way in which

or was it not put somewhat like this, 11 Now, look,	the case was put but would not it have been put
here is what happened. It was obvious to anyone
of intelligence what was going on. The applicant
was a man of intelligence, you must infer that
he knew enough of what was going on to implicate
him in the conspiracy." Is not that the way the case was put?

MR MULHOLLAND:  No, Your Honour. What His Honour did was,

His Honour said -

DAWSON J: No, I am talkin~ about the prosecution. Is not

that way they said?

MR MULHOLLAND:  The prosecution took the lead from the

direction given by the trial judge which allowed

a prima facie connection to be established and

then this other evidence to be considered in
determining whether or not Ahern was a party to

the conspiracy.

DAWSON J:  The prima facie connection was put on the basis

that this man must have known, having regard to

all of these events, what was going on, was it

not?

MR MULHOLLAND:  Put on the basis that he must be prima facie

connected to the conspiracy by reason of what -

DAWSON J:  Because he must have known. I mean, the only

connection that was required was knowledge on his

part. So it was put that from all of this that

was going on he must have known, is that what was

put? To establish a prima facie connection?

(Continued on page 13)

C2T32/l/ND	12	19/4/88
Ahern

MR MULHOLLAND:  In order to establish the prima facie connection,

membership being equated to whether or not he was a

knowing participant, the jury was able to look at

only what he said and did and only what he otherwise

authorized or adopted. That is the way it was put,

Your Honour. But perhaps at this point it is only

necessary to say that further, in relation to what

Your Honour has said, that the evidence was accepted

as being not logically probative- this body of

evidence that I have referred to, in the second group

of witnesses, not logically probative in order to

show that Ahern was a knowing participant, ie a

party to the conspiracy.

Your Honours, I was dealing with Mr Justice Thomas'

direction, and we submit then that the vice was not

in the way that His Honour put it at the foot of page 28

of his judgment, but rather the fact that the jury was

told that it could so use the evidence, and we would

refer Your Honours to the direction that was given

which appears at pages 49 to 52 of volume 1 and in

the sunnning up at page 2900 and 2901 of the trial

record.

WILSON J:  I think, from the point of view of following the

transcript of your argument, should that be

necessary, it is convenient to stick to the appeal

book page references.

MR MULHOLLAND:  Thank you, Your Honour. I will try to keep

to that.

WILSON J:	We can find it from what you say, but it is - - -
MR MULHOLLAND:	Unfortunately, I have got used to thinking of

it in terms of the trial page numbers.

WILSON J:  2900 is 406.

MR MULHOLLAND:  Thank you. Then His Honour goes on at page 538,

having said that the critical point was whether he

knew of tthe unlawful acts of others, and said:

I cannot see how the above directions could

have led the jury into any error in the

present case, when·the issue of knowledge

was so clearly and comprehensively put.

Knowledge was in this case a decisive step

in proof that he was party to the conspiracy

and it was connnon ground that his earlier

admitted steps of participation of the
process involving the companies were conceded
by the prosecution to be innocent steps without

the necessary proof of knowledge.

He goes on:

C2T33/l/VH	13	19/4/88
Ahern

As pointed out above, the evidence of the co-conspirators; acts in this case could not properly implicate the accused as a party to the conspiracy.

This is the second group of witnesses, if one likes:

(Continued on page 15)

C2T33/2/VH	14	19/4/88
Ahern

MR MULHOLLAND:

The point of departure in the appellant's

submissions is that the jury might have

thought that it did.

Then His Honour goes on to say that the scheme, of

course, itself was indefensible and indeed that the

defence had admitted the conspiracy aspect.

His Honour, at the foot of that paragraph says:

But all were of the one mind when it came to the Maher scheme that involved

the 'dumping' of the companies. It was

simply indefensible -

and he quotes from one witness. In our submission,

this makes it worse for the appellant, that is to say

the direction worse, because this is the sort of

evidence in the second group of witnesses and the jury

were being told that that evidence, no matter the

fact that it was not logically probative, could

be used in order to determine that Ahern was a knowing

participant.

DAWSON J:  Again, the scheme was, of cours~, that the

companies were sold for a price which was very much

above their value if the tax was going to be paid, is

that right?

MR MULHOLLAND:	They were sold at a discount.
DAWSON J:	Yes, and was there evidence that Ahern, in

introducing people with companies of this sort knew

of that, or on which you could infer that?

MR MULHOLLAND:	Knew of the - he received - - -
DAWSON J:	The price for which the companies were going to

be sold.

MR HULHOLLAND:  He received half the discount, Your Honour.

(Continued on page 16)

C2T34/1/HS	15
Ahern

DAWSON J: Yes, well, how could you infer that he had no

knowledge of it or say that there was no probative
val-ue in that?

MR MULHOLLAND: No, Your Honour, this is a further stage

that is one is speaking of at this point. This is
the stage when the companies are sold on to the

straws.

DAWSON J:  But it is part of a whole scheme; it is an essential

part. All I am asking is a question, I am ignorant.

MR MULHOLLAND: Your Honours, there is no doubt that Ahern

was involved in the point up to the stage when the

companies were sold into the Maher organization.

But all of - there were a lot of people who knew

up to that point as to what had occurred and the fact
that the companies were being sold at a discount:

the vendor shareholders, for example, their accountants,

and so on, solicitors who were advising them. And it

was never contested that if, after the companies

had passed into the Maher organization, they could,

in the language of the trial - or they had, in the

language of the trial, been treated so that no tax

liability would have arisen. that there would have been no fraud. What made this a fraud was that in

fact there was no treatment, no losses or no schemes introduced into the companies, the companies being sold before the end of the financial year, but rather

the companies were simply sold on to people who did

not know anything about them and were unable to do

anything about them.

DAWSON J:  But they were sold at a price which could only be

payable if the tax were not going to be paid, or

am I wrong in that?

(Continued on page 17)

C2T35/l/JM 16 19/4/88

Ahern
MR MULHOLLAND (continuing): Or if no tax arose, Your Honour.

DAWSON J:	Or if no tax?
MR MULHOLLAND:	No. tax arose.

DAWSON J: Yes, but they were profitable companies and it is

clear that tax would be payable on the profits, was it

not?

MR MULHOLLAND:  Oh no, Your Honour, because it was - the evidence

at the trial was clearly to this effect: that there

were plenty of schemes by which those companies could
have been treated as a result of which no liability to
tax would arise and that is why this further evidence

assumes such importance in the trial.

DEANE J: From paragraph 3 of your submission, does one draw the

inference that it was corrnnon ground that your client

was party to an arrangement that involved the stripping

of the companies of their assets, the question being

left whether at some subsequent stage, the final thing

would be that tax was avoided as distinct from the

companies being dumped.

MR MULHOLLAND:	Yes, Your Honour.
DEANE J:	I follow.

MR MULHOLLAND: Yes. Well, then His Honour Mr Justice Thomas,

having referred to the evidence of the dumping of the

companies, goes on to mention the sort of person that

the applicant was and puts the whole point of the

trial, at the·top of page 539:

(Continued on page 18)

C2T36/l/SH	17	19/4/88
Ahern
MR MULHOLLAND (co_ntinuing):

The case was clearly litigated so that the

decisive question was addressed to the jury:

"Did the accused know that the companies were

not Roing to be treated?" If the answer was

"yes , no-one could, and apparently no-one

did, suggest that he should be acquitted. It was a short manageable jury point, and

there is no doubt that that was the central

point in the case which proceeded over

fifty-nine sitting days.

His Honour then goes on to say that:

Plainly the jury rejected the appellant's

explanation and concluded that he knew what

Mr Maher was doing.

Now, we would, with respect, question how that

conclusion could be reached by His Honour as the

jury may equally have reasoned - and one has no

way of telling - that they could not decide whether

or not to accept Ahern and resolved the issue by

saying that the judge had told them that they could

use this material, not logically probative, and

it contains within it overwhelming evidence of

the fraud - it being admitted - and, therefore,

convict him in that way.

So the fact that Ahern gave evidence for many

days and was subject to cross-examination, the

whole problem about the direction was that it resulted

in the jury never considering what they should

have considered: whether or not they were satisfied

beyond reasonable doubt that Ahern was a party

to the conspiracy and decide that question by reference
to what Ahern had said and done and what he had

authorized or adopted. Then His Honour goes on

to say, in the next paragraph, half-way down page 539:

The co-conspirator's acts clearly did not	bear on the appellant's knowledge, and it
was not suggested that they had any bearing on the question of knowledge.

That makes the point again - the fact that this

was not logically probative.

(Continued on page 19)

C2T37/l/AC	18	19/4/88
Ahern
MR MULHOLLAND (continuing):

The relevant categories of evidence were

clearly separated and the jury was

directed to use only that evidence that

related to his own actions. In these

circumstances it is impossible to think that

evidence which plainly did not demonstrate

knowledge might have been used by the jury.

to demonstrate knowledge and contribute to

a finding of guilty.

And we would add despite the fact that the trial

judge told them that they could so use it. And

finally, at page 540, in the paragraph in the centre

of the page, His Honour says:

In the present case the clear

differentiation between the two classes of

evidence mentioned throughout the trial, the

accurate presentation to the jury of the

criticial question of knowledge and the

adequacy of the evidence for this purpose

all assist to satisfy me that no miscarriage

of justice could have resulted from the

directions given by the learned trial Judge.

Presumably His Honour meant no substantial

miscarriage of justice resulted, having already

found a misdirection.

Can we then take Your Honours to the judgment

of Justice Ambrose.and his discussion of the

proviso?

(Continued on page 20)

C2T38/l/ND	19
Ahern

MR MULHOLLAND·(continuing): It is after the first paragraph

on that page that His Honour then moves into

aiscussing the proviso and in the second paragraph

says:

In the present case, there was no

evidence whatever placed before the jury
of declarations of the alleged co-conspirators
with the appellant either in his presence
or out of his presence containing assertions
of fact which could conceivably be regarded

as logically probative of the only real

issue before the jury - whether he knew

of the unlawful purpose of the transactions

in which he and his alleged co-conspirators

were involved.

We should, perhaps, at this point say, Your Honours,

that what was said in the affidavit supporting

the application for special leave, in paragraphs

20 and 21, should be read in the light of this

passage because His Honour rather does seem to

suggest here that the evidence was not logically

probative.

MASON CJ: In other words, taking the same view as

Mr Justice Thomas?

MR MULHOLLAND:  Yes, he seems to at this passage.

Your Honour, the trouble we have with it is to

reconcile it with a passage later in His Honour's

judgment, at page 576 and 577. Perhaps if I

can just read it - it is at the foot of page 576:

(Continued on page 21)

C2T39/l/SDL	20	19/4/88
Ahern
MR MULHOLLAND (continuing):

While I am of the view that the direction given to the jury by the learned trial

judge following that suggested in

MINUZZO V WILLIAMS may have placed an

unnecessary and indeed unrewarding

burden upon the jury in considering

relevant evidence against the appellant

in two separate stages, the absence in my
view of any inadmissible evidence in the

category of evidence the jury was told

it might consider if satisfied after its

threshold consideration of evidence

"directly admissible against the appellant"

in effect prevented any miscarriage of

justice. Had there been, in the second

category of evidence, anything tending

relevantly to establish the appellant's

guilty knowledge which was at law

inadmissible for that purpose as hearsay

evidence, then it might well be the case

that the appellant would not have

received justice according to law.

MASON CJ:  What is the difference between that.passage and

the earlier passage?

MR MULHOLLAND:  The earlier passage seems to suggest that it

was not logically probative.	This seems to suggest,
in stating that there was no	inadmissible evidence,
that it was, Your Honour.

DAWSON J:  But what His Honour is doing is treating the

evidence in two categories. What he is talking about

on page 574 is hearsay evidence, actual statements by

the witnesses that the applicant was involved, but there was a whole body of evidence as to what they did, what the other witnesses did, which was logically

probative in relation to the applicant.	That is all
he is saying.

MR MULHOLLAND:  Your Honour, it would all, in our submission,

be hearsay in the sense that it is witnesses speaking

of matters which did not occur in the applicant's

presence.

DAWSON J:  What the witnesses said about your client would be

hearsay, but what they did would be just evidence of

what they did.

MR MULHOLLAND:	In any event, that does - - -
DAWSON J:	And there was no evidence of any sort of what the witnesses said about your client's involvement.
MR MULHOLLAND:	No, that is correct, Your Honour.

C2T40/l/HS	21	19/4/88
Ahern

J:1R MULHOLLAND:  No, that is correct, Your Honour.

DAWSON J: All that had to be done, if it could be done, was

to draw an inference from what the witnesses did as

to the involvement of your client.

J:1R MULHOLLAND: 

Your Honour, that is, however, in our submission,

only one way in which an accu~ed may suffer under a
direction like this because whilst - and a good exarrple of
it is, I suppose, the case of MOORE which is mentioned

in the list where there was a conspiracy to connnit
sexual offences upon a boy and a co-conspirator was

said to have made comments about the accused like the

fact he is a homosexual, he is a raving maniac and

that he had connnitted acts of indecency with notable

persons who were mentioned. Now, if a statement was made about Ahern that he was in on the conspiracy or knew all about it that~• of course, would be one way

in which the applicant could suffer if a direction

occurred like this.

DAWSON J: 

But it is that sort of thing that His Honour is

referring to in the second last paragraph on 574

but he said there was nothing of that sort in this

case and the other sort of evidence that there was

would have been admissible in any event. You did

not need to get to a prima facie case for that and,

therefore, there is no miscarriage of justice.

J:1R MULHOLLAND:  Yes. The trouble, however, is that the jury

was told they could use it.

DAWSON J:  But they could have used it in any event. That is

what he is saying.

J:1R MULHOLLAND:  Yes, Your Honour, but the jury was told they

could use it in order to show that Ahern was a

knowing participant.

DAWSON J: If they could draw that inference from that evidence.

What is wrong with that?

J:1R MULHOLLAND: 

Because the evidence which constituted a very

large body of evidence was not logically probative
of that.

(Continued on page 23)

C2T41/l/SH	22
Ahern

DAWSON J: Well then, they could not draw that inference.

That is the answer to that.

MR MULHOLLAND:  But they were told they could, Your Honour.

DAWSON J: If it proved that fact.

MR MULHOLLAND:	But they were not told - it was not explained to them: "These witnesses have said this; now
you can't use that obviously in order to decide
that the applicant was a member of the conspiracy."
DAWSON J:	But you can, if the jury decide that that inference

can be drawn from that evidence.

MR MULHOLLAND:  But there was not any evidence of that sort,

Your Honour.

DAWSON J:  I think we are at cross purposes. There was

evidence of the acts of people which demonstrated

the nature of the conspiracy and the extent of
the conspiracy, and that was the only evidence that

there was. There was no evidence of statements of

your client's involvement.

MR MULHOLLAND:  Yes.

DAWSON J: And it is from that evidence that the inference

can be drawn, if it can be drawn at all. The Crown

said that you could draw the inference; no doubt

the defence said you could not.

MR MULHOLLAND:  Your Honour, the Crown conceded that you could

not draw the inference of knowledge from those other

activities.

DAWSON J: Well, I do not know how else you could do it.

MR MULHOLLAND:  Well, that is the vice, Your Honour. The

jury were told that you could, when in fact there

was no - it was not logically probative and it

was conceded not to be logically probative.

MASON CJ: It may be convenient to adjourn now, Mr Mulholland.

MR MULHOLLAND:	Thank you.
MASON CJ:	The Court will resume at 2.15 om.

AT 12.49 PM LUNCHEON ADJOURNMENT

C2T42/l/JM	23	19/2/88
Ahern

UPON RESUMING AT 2.19 PM:

MASON CJ:	Yes, Mr Mulholland.
MR MULHOLLAND:	Your Honours, may I, in further answer to

Your Honour Justice Dawson, say this: there are

two distinct purposes for which evidence is adduced

in a conspiracy case. First, to establish the

existence and nature of a conspiracy and, second,

to prove membership. That is to say, knowing

involvement in the conspiracy. Obviously, evidence

of acts on the part of co-conspirators in the
absence of the accused is relevant and admissible

for the first purpose. In the present case
that aspect does not loom large given that the
existence of the conspiracy, the nature of it
as charged in the indictment was admitted by

the defence.

The second aspect of it, proof of knowing

participation, primary evidence there will ordinarily

be acts and conduct of the accused himself. What,

perhaps, Your Honour has in mind is that in cases of

a certain character the very nature of the conspiracy

is such as to support an inference that the accused

must have known what was going on. For example, a

conspiracy to rob a rank or to commit sexual

misconduct will generally, if proved, involve actions

which are incapable of innocent explanation and

therefore support the inference that the accused

knew what was going on.

That, however, is quite a different thing from which Ahern was personally involved, that is what here. Here it is common ground that the conduct in

may be described in the current parlance as the

asset stripping exercise, was capable of innocent
explanation, although it was also explicable as

an element of the conspiracy such as that which is

admitted to have occurred in the present case. In

probative force as establishing here that Ahern	that sense, the nature of the conspiracy had no
was knowingly involved in the conspiracy, and that
was unanimously held by the Court of Criminal Appeal.

What made the scheme a conspiracy to defraud

was that after the asset stripping stage, there was

a further stage and in that stage the companies

were dumped or sent to the bottom of the harbour.

(Continued on page 25)

C2T43/l/VH	24
Ahern

MR MULHOLLAND·(continuing): This was what made the scheme

criminal in nature and the prosecution here needed

to prove beyond reasonable doubt that Ahern knew

of this second stage and the error of the learned
trial judge was telling the jury that they could

use evidence only admissible to prove the existence

and terms of the conspiracy.

DAWSON J:  I would doubt that it was the dumping that made

the act criminal. It was conspiracy to defraud

the Commonwealth, was it not?

MR MULHOLLAND:	Yes.
DAWSON J:	The dumping was just a sequel of what happened before

a sequel to; as it were, disguise what had happened.

It was the stripping of the assets, was it not,

which made the companies unable to pay their

tax and was a criminal element?

MR MULHOLLAND:  No, Your Honour. The case was always fought

on the basis and, indeed, ruled upon by His Honour
on the basis that it was the dumping stage which

made it criminal in nature.

DAWSON J:  I must say for my part I find that hard to

understand.

MR MULHOLLAND:  Your Honour, I suppose the only further

thing that we can say about it is that the short

answer is the companies could have been treated

rather than dumped.

DEANE J:	But if you take all the companieef assets, surely
it is incumbent upon you to make sure that there
are not any liabilities?  I mean. it strikes
me, as Mr Justice Dawson says, strange
that an agreement to deprive a company of all
its assets has no criminal element if you say,
"Who knows what will happen to the creditors?"

MR MULHOLLAND:  Your Honour, if that in itself was criminal

then the vendor/shareholders would also have

been guilty of that conspiracy and the path taken

throughout this case was to say that Ahern knew

what those people knew. If he only knew that

then he was not a participant in the conspiracy.

(Continued on page 26)

C2T44/l/SDL	25	19/4/88
Ahern

DEANE J:	I suppose a lot depends on how it was done.
MR MULHOLLAND:	Yes, Your Honour.
DEANE J:	I have not directed my mind to that.

MR MULHOLLAND:  Yes: The case was always fought upon that

basis. Your Honours, can I come back to

Mr Justice Ambrose's judgment at page 576, volume 3,

and the penultimate paragraph having referred to

MRAZ - - -

TOOHEY J: Just before you do, Mr Mulholland, could you go

back, for a moment, to page 574 - the paragraph
that you read us before lunch that begins, "In

the present case".

MR MULHOLLAND:	Yes, Your Honour.
TOOHEY J:	Do you have any quarrel with what is said in that

paragraph?

MR MULHOLLAND:	That there was no such evidence?
TOOHEY J:	Yes.
MR MULHOLLAND:	No, Your Honour, that was conceded,- that

there was no evidence which could be regarded as

logically probative of the only real issue in the

case.

DAWSON J:  But that paragraph is more restricted than that.

It is talking about hearsay evidence - assertions -

out of the mouths of witnesses, which would implicate

your client. It is not all the evidence, it is

only that sort of evidence which is said to be

absent.

MR MULHOLLAND:  Yes, there is that limitation upon what His Honour has said although Mr Justice Thomas

does not so limit it.	But in so far as it goes,
Your Honour, it was conceded by the Crown that

there was no such evidence. His Honour - - -

TOOHEY J:  I was not thinking of it so much in terms of a

concession but rather what it was that was placed

before the jury, if anything, or what the jury

was told that it might properly use by way of

evidence.

(Continued on page 27)

C2T45/l/AC	26	19/4/88
Ahern
MR MULHOLLAND:	Yes.	Your Honour, that was rather the

trouble, if we might say so, that the jury was

simply given a list of witnesses who could be

considered on what His Honour termed "the

threshold stage" and a list of witnesses that

His Honour said could be looked at then after the threshold stage was reached but His Honour never

told them how that evidence could be used except

that they could use it in order to decide whether

or not Ahern was a party to the conspiracy.

TOOHEY J:  But if there were no evidence by way of statements

then your complaint presumably is aimed at conduct

by those whom it was accepted had participated

in the conspiracy from which some inference might

be drawn adverse to your client.

MR MULHOLLAND:	When I say no - I think I will probably follow better now what Your Honour was getting
to a moment ago. When I say that there were no
declarations, there were no statements. The straw
witnesses that I have referred to gave evidence
of coming to Queensland and speaking to people
within the Maher organization at the time that
they were signing the documents and before returning home again and gave evidence, for example, that
they were told that they just needed these documents
signed without being given any sensible reason as to why the documents needed to be signed when they were persons of no commercial substance.

So there were those sort of discussions that

were referred to by those straw witnesses in relating
what occurred when they came to Queensland.

TOOHEY J:	Was there anything in that evidence that was said
to involve your client?  I do not ask you to take

us to the detail of it.

MR MULHOLLAND:  No, Your Honour. Those persons - if I can

just an example of it, one of the persons, Goode,

who was a straw purchaser, gave evidence that he

had been recruited from Wollongong by Faint

through Lane and he was met at the Brisbane airport

by Faint who took him to Southport where he met

Maher and Donnelly and there he signed hundreds

of documents over the course of a number of days.

(Continued on page 28)

C2T46/l/ND	27
Ahern
MR MULHOLLAND (continuing):	Donnelly had told him thar there

was a stuff-up in the system - to use the words that

were used - and that he would have to be a director

of his company so that his firm could act on their

behalf in Wollongong. He was paid $1000

by Faint at the airnort and later he received~

room full of documents and was told by Lane, "Don't

worry, it's company law. Just retain the documents."

TOOHEY J: Well, on the face of it, there is nothing in that

that touches your client.

MR MULHOLLAND:  No, Your Honour.

TOOHEY J: But are you suggesting that nevertheless the jury

•	was told expressly or impliedly that they might use
that sort of evidence to link your client with the conspiracy?

MR MULHOLLAND:  Yes, Your Honour. I will be coming to the

summing up shortly.

TOOHEY J: All right. Thank you.

MR MULHOLLAND:  Your Honours, at page 576, volume 3, His Honour,

having referred to those two decisions, goes on to

say:

In the present case, I am not persuaded

that although there was, in my view, a significant

departure from the proper course of a trial for

conspiracy it h~d the sort of consequences

which led the majority of the court in

QUARTERMAINErs case to hold that the proviso did not justify a dismissal of the appeal.

That case, of course, of QUARTERMAINE,was one in which

the jury had been misdirected as to the essential

elements of the charge and it does appear from the

passage that His Honour is rather putting the onus

the wron~ wav round, the way he expresses himself.

Well then, I have previously referred to the

passage at the foot of page 576 and on to 577. Can

I come to the penultimate paragraph on that page and

the second sentence:

At the end of the day, the jury was

directed to consider the whole of the evidence,
categorised as it was by the learned trial judge,
and to convict the appellant only if satisfied

beyond reasonable doubt that the onlv inference

thAt could be drawn from rho~e £~ct~ was thAt

hA ha~ thA requisitA knowledge of the unlawful

purpose of the transactions in which he was

involved with his alleged co-conspirators.

C2T47/l/JM	28	19/4/88
Ahern

MR MULHOLLAND (continuing): What we say is that the point

really is that the jury was told that they could

draw the inference of knowledge from evidence that

was not logically probative. It only remains in
relation to Their Honours' judgments for us to
point out that Mr Justice Matthews at page 509 of
the record felt that he was unable, applying the

proviso - His Honour said that if the jury had

been properly directed, he was:

Unable to feel confident that, in such case,

their verdict would have been guilty.

In the time-honoured way, having expressed himself

in that form, he went on to say that, having applied
the proviso in the particular circumstances of the

case, he proposed that there be no new trial.

Your Honours, it is submitted that the proviso

was in this case incapable of application for two

reasons. First, that the error was a fundamental
one and the evidence the subject of the misdirection

was of extreme significance in the context of the

trial and we particularly refer to the recent

decision of this Court of WILDE in the joint

judgment of His Honour Mr Justice Brennan and

Your Honours Justice Dawson and Justice Toohey at

pages 574 to 576 as well as the cases there cited.

Can we just, before leaving that case, indicate

or repeat that that was a case, of course, in which

the Court of Criminal Appeal found that:

The evidence supporting the conviction of the

applicant was overwhelming.

That is at line 4, page 573.

(Continued on page 30)

C2T48/l/SH	29	19/4/88
Ahern

At page 575, at the top of the

MR MULHOLLAND (continuing):  page:

The.question whether the jury would

inevitably have convicted falls to be

determined by the Court of Criminal Appeal.

It. is a question which the Court of

Criminal Appeal must answer according

to its assessment of the facts of the
case. In this case the Court of Criminal

Appeal answered it adversely to the applicant, and there is nothing to show

that the answer was wrong.

Then the judgment goes on to refer to the question

as to whether or not it was a fundamental

misdirection and from line 42:

There is no rigid formula to determine

what constitutes such a radical or

fundamental error. It may go either to the

form of the trial or the manner in which it

is conducted.

It recognizes that there are cases, and we submit

that this is one of them. The second aspect to

our submissions is that it was impossible to conclude

that a reasonable jury properly instructed would,

without doubt, have convicted the applicant and in

order to decide that it is really necessary to go to

the summing up. The particular part of the summing
up which we wish to refer to commences at page 406. I

will seek to not read all of this, Your Honours, but,

without leaving out any relevant part, mention

those which are material here. Line 27, His Honour

says, having referred to the question of the accused's

knowledge:

You will not find the accused guilty

on this charge unless you are satisfied

beyond reasonable doubt of each element

of the offence.

Page 406, Your Honour.

MASON CJ:  Thank you.

MR MULHOLLAND: Line 27 - this is in relation to the question

of the ·accused's knowledge:

You will not find the accused guilty

on this charge unless you are satisfied

beyond reasonable doubt of each element

of the offence which includes being

satisfied beyond reasonable doubt that

he believed that these target companies

or any of them were not going to be

treated.

C2T49/l/HS	30	19/4/88
Ahern

Then if I can take Your Honours to the last

paragraph, line 50, His Honour identifies here three

steps in the disposal of the companies:

Now, what you might regard as to the

first two steps in the overall

conspiracy - identifying target

companies and preparing them for sale -

have not been shown to be inherently

dishonest. The evidence shows that

schemes of a similar nature have been

used in respect of various companies

and in fact have been found to be

effective schemes by the courts in

reducing taxation. It is the third

step, the passing on of the shares to

persons known to be straw or dummy

purchasers which is alleged to be the
dishonest step. It must be shown by the

Crown that the third step was to the

knowledge of the accused one which did
not contemplate any treatment, that he
knew that the third step was a step in the

general scheme, that he was not acting under

some other scheme; that he knew that this

dishonest course of conduct related to a

scheme to deprive the Commonwealth of

taxation to which it might otherwise

have been entitled.

Then line 29, His Honour goes on to identify the

two major concerns in the case:

The first is that the Crown must prove

that there was a conspiracy on foot,

and in this case you won't have much

difficulty with that because the fact of

a conspiracy between Maher, Donnelly and

Hurley has been admitted. A jury must take

into account things done and said by

co-conspirators as well as general evidence of the origin of the conspiracy in order to

determine the existence and nature of

the conspiracy alleged.

(Continued on page 32)

C2T49/2/HS	31	19/4/88
Ahern

MR MULHOLLAND (continuing):

The second concern is that the Crown must

prove that the accused whose case you are
considering, Mr Ahern, was a party to the
alleged conspiracy, that he had agreed to

the ·dishonesty involved in the overall

scheme. In considering the question of

whether the accused was a knowing participant,

there are two stages. You look, in the

first or threshold stage, in the context

of the case, only at the evidence that

relates to his own acts and declarations;

any acts or declarations of others which

he adopted or what others did at his

directions, and you look at those to see

whether you are satisfied to a significant

degree of his participation in the

agreement.

Then, at line 10:

All other acts or declarations of the co-conspirators done in furtherance of the

conspiracy are to be excluded from your

consideration at the threshold stage.

Line 40, commencing at the beginning of that sentence:

When evidence is adduced of that accused's

acts and declarations

that should be the -

accused's acts and declarations or

of those acts and declarations authorised

or adopted by him to establish that he was

a party to the conspiracy alleged, at the

first stage, the acts of the co-conspirators

done in furtherance of the common purpose

may not be relied upon in satisfying yourselves

yourselves at the threshold stage, as to the	of the accused's participation. careful to go about the task of satisfying You must be	accused's knowing participation in the
conspiracy, in a correct manner and have
regard only to the body of evidence upon which
you may draw. This is because once you are
satisfied on .the evidence directly relating
to the accused that the connection between
him and the conspiracy is established,
satisfied that is to say that the body of evidence directly admissible on the issue amounts to prima facie proof of his connection,
then you are at liberty to take into account in
addition, all the proven acts and declarations
of persons you find to be co-conspirators in deciding exactly what the plan was in which

C2T50/1/VH	32
Ahern

the accused was involved and in deciding

the ultimate issue of his guilty participation

beyond a reasonable doubt.

Then to line 40 of the same page:

Because it is a significant level of

satisfaction as to the connection between

the accused and the conspiracy that is

required on this threshold question and

because of the consequences that follow

your reaching that degree of satisfaction

are that the acts and declaration of
co-conspirators done in pursuance of the
conspiracy become evidence in the case of
the accused going to the precise nature of

the conspiracy and the question of guilty

participation in the agreement, it is important

that I do three things to help you. First of

all I must tell you that you must decide

the threshold question as a deliberate step.

Second, to tell you that the degree of

satisfaction of the accused's connection with the

conspiracy at the threshold stage, which has been

described as prima facie proof, must be

achieved by each of you before you can go on

past the threshold stage and consider guilt

beyond reasonable doubt. Whether there is

sufficient evidence directly admissible against

the accused connecting him with the conspiracy
so as to make the acts and declarations of
co-conspirators done or made in pursuance of

the combination admissible against him on the

ultimate question of guilt is for the jury to

decide. After looking only at the evidence

directly admissible in the case of the accused

in order to decide whether you are satisfied

of his connection in the relevant sense with

the conspiracy revealed on the evidence you

should ask yourselves, each of you, whether on

that evidence alone, without more, you could

be, not that you are but that you could be

satisfied beyond reasonable doubt that he

was a party to the agreement.

(Continued on page 34)

C2T50/2/VH	33	19/4/88
Ahern

MR MULHOLLAND·(continuing):  We need hardly say, Your Honours,

that in relation to that it is something that

is, at first blush, quite striking, that a jury

is going to be asked to put to themselves the

question:  "Could we be satisfied beyond reasonable

doubt", ·and having decided that question then

ask the further question as to, "Whether we

are in fact satisfied beyond reasonable doubt?"

His Honour then, at page 412, says:

The witnesses who did, you might

think, depose to acts and declarations

of the accused done, adopted or directed

by him were these -

and he names them. Then he says:

Be careful, ladies and gentlemen, in so

far as those witnesses or any of them may

have deposed to such acts or declarations

of co-conspirators, don't forget their

evidence in that regard has to be ignored

on the threshold question. Take into

account only what they said of acts and

declarations of the accused.

The witnesses who did not, you might

think, depose to acts and declarations done,

adopted or directed by the accused were -

and he names them.

In particular, you will be careful to

exclude from your deliberations on the

threshold question any evidence from the

latter group in so far as it related to

acts and declarations of co-conspirators

done in furtherance of the conspiracy.

But, as I say, you might think none of the

witnesses I just called in the latter group

deposed to acts or declarations done or

directed or adopted by the accused at all.

Then there is a break and that is where the

matter is left. The only further passages which

we submit do not in any way alter the sense of

what we have referred to are at page 428, line 43
to page 429, line 16, and page 440, line 44,

to page 441, line 13.

Your Honours, accepting what was the view

of the Court of Criminal Appeal of Queensland

as to the lack of probative value of that evidence,

can Isa~ apart from the evidence in relation

to the straws - mention only that Mr Jorgensen,

who is referred to in that second group of witnesses,

C2T51/l/SDL	34	19/4/88
Ahern

was an Australian tax office official who gave

evidence that none of the companies had submitted

returns or paid tax in relation to the financial

years in question. Mr Lefranchi, an accountant

with the Victorian Corporate Affairs office,

gave evidence which consisted of the tender -

this is largely the effect of it - of his financial

analyses in relation to all of the companies.

Those analyses trace the transaction from their

commencement when in control of the vendor's

shareholders, till their end, after passing into

the hands of the straw purchasers.

He agreed that at no stage did he attempt

to analyse the transactions from the point of

view of what Mr Ahern would have seen. We submit,
Your Honours, that the misdirection was of extreme

significance in this trial in view of the fact

that it related to the fraud itself and the sole

issue being whether or not Ahern had attached

himself to the illegal activities described by

those witnesses or, as it was put, had knowledge

of such activities.

The misdirection assumed considerable importance during the course of the trial. It was given

at the conclusion of the opening speech of the

Crown prosecutor; formed a prominent part of

the summing up and, in our submission, must have

appeared so to the jury.

(Continued on page 36)

C2T51/2/SDL	35	19/4/88
Ahern

MR MULHOLLAND (continuing):  The defence had urged upon the

trial judg~ at every poin½ that he direct the jury

in accordance with Queensland authority; done

that before the Crown opening, at the end of the

prosecution case and, again, in applications for

redirections and at every point the Crown had supported

the direction of His Honour.

We repeat, Your Honours, that this is not

a case where it was possible to say that the prosecution

case was overwhelmingly strong and the defence

weak, nor was that said by the Court of Criminal Appeal.

Much of the criminal jurisdiction involves carefully
keeping from the jury matters which should not

go before it for the very reason that they might

be prejudicially influenced by those matters which

are, on strict analysis, irrelevant. It is a

fundamental misdirection of law, as held by the

Court of Criminal Appeal, and we submit that the

jury should be assumed to have observed and applied

the directions that were given to them.

It is, in our submission, impossible to conclude

that the jury would have, without doubt, convicted

despite the misdirection for the reason that they

were told that they could use it. We submit it

is simply conjecture what use they, in fact, made

of it but not unimportant is the prominence given
to it during the course of the trial and the reality
being, the jury may well have thought not only

that they were being told that they could use but

that they should use it. The fact that they had

been told that at the so-called threshold stage

it could use this body of evidence meant that it

was more likely at the final stage that they would

make use of it; that they could not use it at the

initial stage made it more likely that at the final

stage they would, in fact, make use of it.

It would, in our submission, simply be ignoring

the realities of the matter to assume that they

would not use the evidence having been told that

they could. It is scarcely possible, in our submission,
that the jury would have decided that the two-stage
direction had been given for no purpose when the
simple question that they had to determine was

whether or not they were satisfied beyond reasonable

doubt that Mr Ahern was guilty of the conspiracy

in relation to which they should only look at his

own acts and declarations together with those which

he had authorized or adopted.

We submit that, in these circumstances, it

is not possible to say that there has been no substantial

miscarriage of justice where the jury has been

invited to consider, notwithstanding objection,

matters which should not have been submitted to them.

C2T52/l/AC	36	19/4/88
Ahern

In the result, we submit that the misdirection

in this case rendered the trial a farce. The

existence and nature of the conspiracy was admitted;
the fact that illegal activities were engaged in
in Ahern's absence without his knowledge, without
his direction or authority by both the persons

named in the indictment as alleged co-conspirators

and other persons, namely the straws, was accepted

by the defence. That evidence was admissible to

establish both what was admitted, namel½ the existence

of the conspiracy and the nature of it.

The jury must really have wondered what they

were doing there for three months when, in the

light of those admissions that there was a conspiracy

and the fact that these other persons were a party

to it, when being told that all of those activities
of the alleged co-conspirators, not just those

named in the indictment but, indeed, any person

who was found to be a co-conspirator by them, could

be considered; the straws and anybody else. But

those people - or that evidence - was relating

to activities in the absence of Ahern and without

any suggestion that he authorized them or directed

them.

In these circumstances, we submit finally,

Your Honours, that the trial was a futility and

that the practical result was that the jury was

required to be satisfied of nothing more than that

there was a prima facie case against Ahern.

(Continued on page 38)

C2T52/2/AC	37	19/4/88
Ahern
MR MULHOLLAND (continuing):	Once they had reached that

stage they would, in our submission, have, without

doubt, come to the view that he vas guilty

because the other activities which they were then

able to consider related to the fraud itself which

had been admitted. May we ultimately, Your Honours,

refer to - it is unnecessary for us to read this

but to refer to paragraph 14 of the outline of

submissions.which, it is our submission, is a result

of the Court of Criminal Appeal decision being allowed to stand. Those are our submissions,

Your Honours.

MASON CJ:  Thank you, Mr Mulholland. Yes, Mr Griffin.

MR GRIFFIN: In our submissions on the proviso, we proceed

upon the footing that the trial judge was wrong

in giving the jury a direction in accordance with

the MINUZZO decison. As Your Honours have seen

from our proposed notice of contention, we do wish

to contend that the trial judge's direction was,

in fact, correct.

MASON CJ:  Yes. Now, you have an outline of submissions

that you want to hand to us?

MR GRIFFIN:	Yes, I do, if the Court pleases.
MASON CJ:	Thank you.

MR GRIFFIN: If the Court pleases. It is submitted that

properly analysed the proposed grounds of appeal
proviso. What they say, in effect, is that because the trial judge, through the MINUZZO

do not complain of any error of principle by the the

directio~ wrongly invited the jury to take into

account on the issue of participation a body of evidence which did not, in fact, bear upon that issue, the proviso could not have been applied

and this suggests that there is a rigid formula

to the effect that if a judge tells the jury that

certain evidence can be available for purposes

X, Y and Z, in circumstances in which it is in

fact only _avail.s-r:le for purposes X and Y, that the proviso

cannot be applied.

One only really needs to consider the

instances in which the proviso has been applied

to realize that there are no hard and fast rules
about its application. Instances are incorrect

instructions to the jury to take into account

inadmissible evidence and WILDE's case, which has

already been referred to, would be an example of

that; the incorrect characterization of evidence

as corroboration; the incorrect weighing up of

C2T53/l/ND	38
Ahern

evidence by the trial judge; misstatements of

fact by the trial judge and Your Honours will recall

the case of SIMIC V REG where there was a

misstatement as to fingerprints on the murder weapon;
the judge's comment on the silence of the accused;
inadequacy of the judge's directions of the use

to be made of particular evidence s~ch as

intoxication; misdirections as to the onus of proof,

of which the decision of this Court in LIBERATO could be seen as an example; even the incorrect allowing of cross-examination of the accused on

his previous convictions has in certain circumstances

been held within the ambit of the proviso, although

generally the proviso would not be appropriately

applied in such circumstances but it is still a

matter of weighing up the effect of the

introduction of the conviction.

It is submitted that the majority of the Court of Criminal Appeal, having found that there was

a misdirection and having identified it, correctly

addressed the issue, whether the appellant may

thereby have fairly lost a chance open to him of

acquittal, and in relation to the general

application of the MRAZ test there is, so far as

we can see, no complaint.

(Continued on page 40)

C2T53/2/ND	39	19/4/88
Ahern

MR GRIFFIN (continuing):  The proposed ground of appeal B

is also factually incorrect in that it suggests

that the judge instructed the jury to take into

account a body of evidence which was not logically

probative on the participation issue. Now, this

is, in fact, not the way the trial judge expressed

it in the passage to which our learned friend has

referred at page 408 where he used the words "at

liberty":

You are at liberty to take into account the

whole of the evidence.

And, my learned friend today has not put it as highly as to say that the trial judge directed the

jury to take that evidence into account on the issue

of participation but he has implied that the trial

judge told the jury that the evidence was, in fact,

probative on that issue when it was not and even

that is to overstate what the trial judge did, in

our submission.

Your Honours, it is necessary for us to give

Your Honours a brief sununary of the kind of evidence

that was involved in this case in order for

Your Honours to know the sort of evidence that the

trial judge was referring to in this direction.

There was a lot of evidence as to what the applicant

himself did. For example, he personally received tax notices showing that these companies were not filing returns and had not complied otherwise with

their income tax obligations. This was very strange

if a legitimate form of treatment, if I could use that

term, of the companies was being carried out by Maher.

One would have expected that if he was treating the companies he would have been lodging tax returns

because the whole object of the exercise, of course,

would have been a tax minimization exercise. That is

the first thing and in the appeal book there are a

large number of these tax notices which kept coming

to the applicant and to his firm.

to have personally arranged a number of transactions Then he was shown

which were not conunercially viable except on the

assumption that the companies were being dumped and

one of these transactions was a transaction referred

to as the Iraci transaction and in that transaction
the company in question had a tax obligation in respect

of a prior year which in correspondence the applicant

had described as inevitable. That was a tax obligation

in the amount of about $60,000.

Now, this company was acquired on the basis of a

discount or commission which was equally split between Maher and the applicant and they received $46,000 each.

Now, on the applicant's case, Maher was the person who

always·attended to the tax problems. He was the one who

C2T54/l/SH	40	19/4/88
Ahern

treated the companies. This particular obligation

was, of course, an obligation in respect of a prior

year. It was not something in respect of which

treatment could be offered and, accordingly, the

transaction which the applicant arranged was one

which was cormnercially not viable for Maher except

in the circumstance that the company was going to

be dumped and no one was going to pay any tax,

whether in respect of the current year or in respect

of prior years.

There were also -

MASON CJ:	Now, is that evidence in the appeal book?
MR GRIFFIN:	The evidence, as such, is not in the appeal book

but Your Honours, there are references to the letters

that the applicant wrote. I will give Your Honours

the references to them in a moment. There are

letters that he wrote in which he described this

prior year's tax as inevitable and the correspondence
that the applicant entered into in relation to the

transaction which, I might say, was entirely his

transaction. It had nothing to do with Maher at all.

He arranged it and the only involvement of Maher was

that at the ultimate stage, the companies were dumped

but the transaction was organized and totally arranged

by the applicant.

Then, another form of evidence was in relation to conversations with the applicant. There was evidence

of two conversations which a witness, Hurley, who was
a member of the Maher organization had with the

applicant in which Hurley made reference to Faint's

purchases and of Maher having decided that for one

reason or another certain companies would have to go direct to one of Faint's purchases. Now, Faint

was the person who supplied the straw purchases and

the evidence was that the applicant asks for no

elaboration of what Hurley meant by one of Faint's

purchases.

(Continued on page 42)

C2T54/2/SH	41	19/4/88
Ahern

MR GRIFFIN (continuing):  Then there was evidence which

showed that the applicant received invariably a

50 per cent conunission, along with Maher. And

the evidence also was that of all the people who
supplied companies in this way to Maher, the

applicant-was the only person who received a

conunission as high as 50 per cent. In all the

transactions the conunission,as between the applicant

and Maher,was split on a 50:50 basis. The evidence

also showed that in dealings with vendors, and

their accountants and solicitors, the applicant

did not disclose that he was receiving conunission

and it also showed that he failed to disclose his

association with Maher and Maher's company, Conunercial

Securities.

Although the dumping process was the responsibility

of Maher, the applicant was shown to be involved in it

to a certain extent. The usual modus operandi was

for the shares in the target company to go to a

Maher company first and then for Maher to dump the

company and when that happened the applicant was

not involved in the second, or dumping, stage. But

there were occasions, for one reason or another, this

procedure was bypassed.and the sale which took place

or the transaction which took place was in fact a

transaction in which the old shareholders transferred

their shares to the straw purchasers. Now, in those

circumstances, as he was involved in that part of
the transaction, the applicant was involved with the
passing on of the company to the straw purchasers

personally, and he had close contact with at least

one of the straw purchasers. And there was evidence

that he assisted that particular person to write,

or in the most simple transfer tasks, as one of the judges	described it, by helping him to write out transfer
forms for shares; a very strange thing if this man
was, as the applicant claimed to believe, a member of
the Maher organisation.

Then the applicant also lodged companies office

forms in respect of these straw companies, often,	so it would seem, putting the names of the straw
purchaser on the outside of the document and being careful not to put the name of his firm,
Ahern & Macrossan,on the outside of the document. There was the fact that these straw purchasers were
people from Victoria and New South Wales and time
and time again the applicant saw documentation that
demonstrated that these people were from Victoria
and New South Wales and were not from Queensland,
whereas Maher had his operation at Southport on
the Gold Coast. Why were these companies going to
people in Victoria and New South Wales if they were
in fact going to Maher for the purpose of a legitimate
tax scheme being introduced. So, all that sort of

C2T55/l/JM	42	19/4/88
Ahern

evidence was evidence of the applicant's

own involvement in this matter and it was by that

sort of evidence that his knowledge of the dumping

process was demonstrated.

Now,_ in addition to all that evidence there

was evidence which did - - -

DEANE J:  Was the evidence confined to companies with which
the applicant was associated at the preliminary
stages?

MR GRIFFIN: It was, yes. All of the companies except one

had in fact been introduced by the applicant. That

other company, which was the second company in

question, was Finance and Transport Holdings, and

there is a schedule in the appeal record which shows
these transactions. The evidence showed that in
all the cases, apart from Finance and Transport,

the transaction was introduced by Ahern, but in the

case of Finance and Transport, although Ahern was

very closely involved in the transaction, the

transaction was in fact introduced by Maher.

Your Honours, the transactions are set out in

a schedule at pages 53 and 54. . They are set out,

with one exception, chronologically. The exception

is that Finance and Transport Holdings, which is given

the number 135 was, in fact, the second transaction and
it is the last on the list, but for some reason that
got out of place. The other transactions, however, are

all chronologically in order.

(Continued on page 44)

C2T55/2/JM	43	19/4/88
Ahern

MR GRIFFIN (continuing):  The first two transactions were

done by means of a Norfolk Island scheme whereby
the companies were simply denuded of their funds by

means of a series of preferential dividends with

the final company making gifts to a trust of the

initial vendor shareholders and also of Ahern and

Maher .. There is a diagram which shows what happened

in those transactions which I will take Your Honours

to shortly, but looking at this schedule one sees

that, in the case of H.Q. Estates, the first

transaction, that was a direct sale. The shares

went direct to the straw acquisition company which

is seen in the third last column, Ahegogo Pty Ltd,

the straw person there being Spence.

Now, the next group of companies went initially

to a Maher acquisiton company, Tradfern Investments

Pty Ltd. On 25 June 1974, one sees the acquisition

date - it is in the column on the left-hand side - and
then on the very same date Maher transferred the shares

to a company, Anihuna Pty Ltd, which was the company of

the straw person Kelden. So that was not a direct

sale. That was a sale to the Maher company first

and then the company was dumped on the straw purchaser.

In the next company, 106, which was actually

a client of the applicant's, that belonged to
a Mr London who was his client, that was a direct

sale. It went, as Your Honours see, it went direct

to the company Anihuna Pty Ltd. Of the next two,

one went intially to a Maher company and then the

other one direct.

DEANE J:  Mr Griffin, can I interrupt you again?

The target company sells its assets and at one stage
ends up with a debt owing to it by Mr Maher's

company.

MR GRIFFIN:	That is right.
DEANE J:	Now, at the end of the story what is the asset that would ordinarily remain with the
target company?

MR GRIFFJN1 At the end of the process one straw company - things

w~re so arranged that one straw company owed a debt

to another straw company and the evidence showed that,
of course, these debts, even when they were owed by
the Maher company, were never intended to be recovered,
and, of course, the whole of the transaction was

COIIllllercially not viable if those debts were ever to

be recovered.

DEANE J:  So the fraud is achieved not through the dealings

in the target company shares, but through the series

of transactions which end with the target company's

only asset being a worthless debt?

C2T56/l/HS	44	19/4/88
Ahern
MR GRIFFIN:	Yes.	I might say that in the first two

transactions the target companies did not even end

up with a debt. If Your Honours would look at

page 101 you will see what happened with this and
the - and I might say a similar procedure was
undertaken with respect to finance and transport -

Your Honours see that the H.Q. Estates started off

with $261,000 and by a series of transactions the

Ahegogo, which was the straw company, of $256,000. That company then made a preferential dividend to Waymouth Limited, which was a - and I might say that	H.Q. Estates paid a preferential dividend to company was set up in Norfolk Island to receive these
dividends; then that company made a preferential
dividend to another company, Promenade Pty Ltd, and
then that company finally made gifts, one to the
Hales Family Trust - and Hales was the vendor shareholder -
and one to the Waymouth Trust of $21,690, and one
to the Maher Family Trust of $21,690. ·

Now, following that procedure H.Q. Estates Pty

Ltd of course had no funds and yet H.Q. Estates, the evidence showed, in the year in question had a current year profit of some $200,000.

(Continued on page 46)

C2T56/2/HS	45	19/4/88
Ahern

MR GRIFFIN (continuing):  So it was quite unable, of course,

to pay its tax once this procedure was gone through

and, in the case of this company and in the case of

Finance and Transport, it can be seen that those

companies do not end up with even a worthless debt

from a Maher company at the end of the day. In fact,

the only asset that HQ Estates had at the time it

was supposedly sold to Spence for $4 was the amount

which Spence paid for the shares, namely, $4.

DEANE J:	$256,565 going from Ahegogo to Waymouth: how was
that done?
MR GRIFFIN:	That was by means of a preferential dividend.

Waymouth Limited applied for preference shares in
Ahegogo Pty Limited; Ahegogo issued those shares

and then paid a dividend of $256,000 on those shares.

DEANE J:	And would the same apply to the payment from
HQ Estates to - - - -
MR GRIFFIN:	Yes, that applied all the way through. There

were a series of meetings, of course, allotting

shares and declaring dividends, and the applicant

was shown to be the person,as between Maher and

himself - he was the person very heavily involved

in that aspect of the matter. Another feature

that I should mention, whilst we are looking at that

diagram, is that, according to the applicant, his

case was that he thought that Ahegogo was a Maher

company. Now, one will note that on the way

through in this procedure an amount of $5000 was

left in Ahegogo Pty Ltd. Now, the evidence

showed that that was done in accordance with a

procedure that Maher had of leaving a relatively

small amount in the straw company to cover the
expenses of Faint and the expenses of the straw

in coming up to Queensland and signing all the

various documents. That was the way it was done.

One of the points made by the Crown in the

Ahern trial was would not he have found it suspicious

that $5000 was left in Ahegogo Pty Ltd if

Ahegogo was a Maher company? After all,

what Maher was getting out of the transaction was

the $21,690 shown at the bottom right-hand side

of the diagram. So most the the evidence,

Your Honours, was in that category, of what the

applicant himself did and as is pointed out in the

Court of Criminal Appeal judgment, the overt acts

were put in the form of the applicant's own acts

and declarations, and they are to be found starting

at page 2. They are all acts and statements of the

applicant himself.

DEANE J:	Mr Griffin, on this chart, what relationship was
there between the $21,690 and the amount of tax
C2T57/l/VH	46
Ahern

which HQ Estates would have been liable to pay

if no steps were taken?

MR GRIFFIN:  Your Honour, the amount which went to the

applicant and Maher was always calculated by

a percentage of the current year profit.

DEANE J:	I see.
MR GRIFFIN:	Now, the exact percentage varied according

to the transaction, but it was usually in the region

of 15 per cent. In the earlier stages, it was higher.

DEANE J: Well, this one looks as if it would be 21.6 per cent.

·MR GRIFFIN:  No, the total discount or commission here is

$42,000. The discount was not measured by reference

to the company funds which sometimes did not equate
exactly with the current year profit. It was

measured by reference to the current year profit.

DEANE J:	I thought you said it was $200,000.
MR GRIFFIN:	Roughly, $200,000, so it was - - -

DEANE J: Well, then, it would have been 21.6 per cent.

MR GRIFFIN:  Oh yes, I am sorry, Your Honour, that is so.

Now, Your Honours, as against that type of evidence

there was evidence which did not constitute evidence

of the applicant's own acts. For example, two

people were called who were what were referred to

as straw secretaries, people called Brown and Schultz.

(Continued on page 48)

C2T57/2/VH	47	19/4/88
Ahern

MR GRIFFIN (continuing): Part of this scheme of sending

these companies to the bottom of the harbour

was not only to give them straw purchasers who

knew nothing about company law or the activities

of the company, but it was also to give them
straw secretaries who knew nothing about the

persons who had been appointed directors.

There were two straw secretaries

involved in these companies that the applicant

introduced to Maher and they gave evidence.

But their evidence was to the effect that they never met the applicant. Their involvement was

arranged through this man, Faint, who in turn was receiving instructions from Maher, not from

• the applicant.

So these straw secretaries gave no evidence as to what the applicant did.

DAWSON J:	What was the purpose of their evidence?
MR GRIFFIN:	The purpose of their evidence was simply to

show what the nature of the conspiracy was;

that that was part of the conspiracy to appoint

straw secretaries. There was the additional
feature that those - although this did not depend

on their evidence - straw secretaries again had

addresses that were not Gold Coast addresses

and one would have thought that the applicant

would have been suspicious about the address

of these people if they were supposed to be secretaries

of a company that was carrying on a ligitimate

tax minimization business from Southport.

Then, Your Honours, there were some straw

purchasers who had:never met the applicant and

again whose appointment was arranged by Faint,

again.to show the nature and extent of the

conspiracy.

So this was evidence of what might be described

as aspects of the dumping process in which the

Crown was not able to show the applicant was

actually involved, as compared with other aspects

in which the Crown showed that he was involved.

So, what it did was it proved that all these

companies were, in fact, dumped. All these companies

that had been introduced by the applicant were,

in fact, dumped but, in some instances - and

no tax was paid and that was the purpose of

Mr Jorgensen being called, that in none of these cases was tax in fact paid on the current year

profit.

But that evidence was really quite neutral

on the question of whether the applicant knew that Maher was dumping the companies. It was

C2T58/l/SDL	48	19/4/88
Ahern

simply evidence to show that the companies were,

in fact, dumped and that no tax was, in fact,

paid. What showed that the applicant knew of

the dumping of the companies was the evidence

to which I have referred. The evidence of the

50 per cent commission; the evidence of his own

involvement with straw purchasers; the evidence

relating to his entry into uncommercial transactions

except on the footing that the companies were being dumped; the evidence of the receipt by him of tax notices showing that the companies
were not lodging tax returns, and so on. It

is really impossible to think that on the knowledge

issue the jury looks to aspects of this dumping

process in which the applicant was not involved

when so much of the evidence focused on the acts

in which he was involved.

It is our submission, and we adopt the reasoning of the Court of Criminal Appeal on this point,

that it is unthinkable that the jury would have

used this evidence on the knowledge issue or

the participation issue because, in this case,

participation depended upon knowledge. It is

unthinkable that the jury would have considered

that evidence in determining whether the applicant,

in fact, did have the knowledge that the Crown

alleged that he had.

Your Honours, might I come back to the proposed grounds of appeal. The proposed ground of appeal C,

in our submission, is also factually inaccurate

inasmuch as it suggests that the reason that

the Court of Criminal Appeal applied the proviso

was that the direction complained of did not,

in fact, point to any evidence which was logically

probative on the issue of participation.

(Continued on page 50)

C2T58/2/SDL	49	19/4/88
Ahern

MR GRIFFIN (continuing): This, however, understates the

reason why the majority applied the proviso and
in addition to that reason Mr Justice Thomas and

Mr Justice Ambrose in effect said, first of all, that the applicant's knowledge was the true issue

in the case and that critical issue was correctly

presented to the jury; secondly, that the trial

judge correctly indicated to the jury that before

convicting it had to be satisfied of each element
of the offence, including knowledge beyond reasonable
doubt; thirdly, that the trial judge also properly
gave the CHAMBERLAIN direction requiring the jury

to be satisfied beyond reasonable doubt of each fact upon which it relied for the conclusion of

guilt; fourthly, that the trial judge had ensured

that during the course of the trial the acts and

declarations of the accused were distinguished from the other evidence in the case. The jury

clearly knew, therefore, which acts and declarations

were those of the applicant.

And these considerations, in our submission,

led the majority to hold, in effect, that it was

logically impossible for the jury to have reached

a different verdict had the MINUZZO direction not

been given.	And that was the approach that the
Court of Criminal Appeal took.	The main references

to the part of the summing up in which the trial
judge instructed the jury that they could only

convict if they were satisfied of the applicant's

knowledge of the dumping process and that such

satisfaction was on a beyond reasonable doubt basis

are first of all at page 406, starting at line 26 to

line 46, and it reads as follows - and our learned

friend did read part of this:

In regard to the question of the accused's

knowledge, you will consider all the evidence

going to the issue of the accused's knowledge,

not overlooking any piece of evidence which

you consider favourable to him. You will

not find the accused guilty on this charge

unless you are satisfied beyond reasonable

doubt of each element of the offence which

includes being satisfied beyond reasonable

doubt that he believed that these target companies
or any of them were not going to be treated.

Now, in that regard knowledge is equivalent

to belief. Your merely being satisfied that

he suspected as much or that he had a "pretty

good idea" that the companies or any of them

were not going to be treated is not enough. He must have believed that the companies or any of them were not going to be treated.

And, again, Your Honours, at page 428, starting

at line 39, he said:

C2T59/l/AC	so	19/4/88
Ahern

You might think that this trial is really

about knowledge. Knowledge or lack of it
in the mind of the accused, acquired or not

acquired over a period of time, some four

years.

Remembering that a person could join

a conspiracy at any time during its existence,
a vital question is whether the accused acquired

the knowledge that the companies, or any of

them, had not been treated or were not to

be treated. If you are satisfied on all

the evidence beyond reasonAblP rl0ubt that

the accused acquired that knowledge and then

went on to perform acts and declarations in

furtherance of the unlawful object, then it

would be open to you to regard his conduct

as dishonest and to be satisfied of his guilt.

The only way you could determine what the

accused knew and believed and what he didn't

know is to examine the evidence of what he

himself did and said, what he adopted of what

others did and said and what he had others

do on his behalf. You would also have regard

to the information which the evidence shows

came to his attention. You should remember

the important question of time. You would

do well to keep in mind the true order of

events, the events which occurred after pieces

of information were known.

DEANE J:	Mr Griffin, is not the real problem on this aspect
of the case this: if the evidence satisfied the
jury beyond reasonable doubt that the applicant
knew what was going o~ the evidence of the dumping
would have been admissible against him on the state
of his knowledge. In other words, it identified
what he knew was going on.  But if the evidence
only satisfied the jury on the probabilities that the applicant knew what was going on, the evidence
what he knew because there was that great gap in of the dumping was not admissible or did not prove the chain. Well, now I have not read all the summing
up but it seems to me that there may be something to be said for the view that there was a danger that
the effect of the trial judge's summing up was
to camouflage that problem when he said to them:
if you are satisfied of the threshold question
on probabilities, you can then look at what happened
to ascertain the applicant's knowledge.

(Continued on page 52)

C2T59/2/AC	51	19/4/88
Ahern

MR GRIFFIN:  He certainly did do it in a two-stage process,

Your Honour. There is no doubt about that.

DEANE J: What I am suggesting is if there are some passages

in the summing up which make quite clear that you

could no-t say, "The threshold question is answered

on the probabilities the applicant knew what was

going on,therefore we can look at what happened

to identify the content of his knowledge."

MR GRIFFIN:  Yes. There are many passages, of course, where

the judge makes it quite plain that the ultimate

issue is to be decided on a beyond reasonable doubt

basis. There is no doubt that he approached the

participation question on a two-stage basis.	But
he also said, in that passage to which I have
referred, he made it plain that the question of
participation was dependent in this case on the

issue of knowledge and that the issue of knowledge

itself had to be proved beyond reasonable doubt.

DAWSON J: That is a bit misleading, is it not, really?

The issue is common purpose not knowledge because a very little knowledge may demonstrate common

purpose which permeates the whole of the activities.

MR GRIFFIN: Oh yes, but, Your Honour, in this case there was no

doubt and all of the evidence showed that the

applicant was in fact acting in concert with Maher.

The question really was, "Was he doing so in the

knowledge that these companies were being dumped?"

He was involved in - - -

DAWSON J: That is another purpose, whether it was the

illegal purpose, but once he knew of the illegal

purpose, perhaps with only one company, that would

be enough.

MR GRIFFIN:  Yes, because in all of the cases, particularly

in the early stages, in the case of H.Q.Estates,

Maher and the applicant attended the settlement
together.	They were together there with the straw

purchaser. That, as I said, in that case was

itself the dumping process and so he was shown

in that transaction in particular and this, of

course, coloured the later transactions, he was

shown to be acting in concert with Maher.

DAWSON J:  I am not J?Utting somethin~ tbaLyou-_disagree::

with, it 1s just that it 1s common purpose and

the purpose has to be an illegal purpose but once

you have established that then it may be that what

is done in the furtherance of the conspiracy is

outside or often is outside his knowledge but he

is still stuck with that.

MR GRIFFIN:  Yes. So, Your Honours, there are some other

points we wish to make about the direction. They

C2T6O/l/ND	52	19/4/88
Ahern

are these: first of all, the direction did not
cause any evidence to be wrongly introduced into

the case; all the evidence that was before the

court was, in fact, admissible an~ indeed, all

the evidence to which our learned friend has referred, the evidence of the dumping of the companies in which it was not shown that the

applicant was involved, that was evidence which

went in without objection. That is the first point.

Secondly, whether evidence demonstrates knowledge,

in our submission, is really a matter of common

sense. Where the jury has been directed in general

terms that it may have regard to a large body of

evidence in considering a question as simple as

knowledge, it, in our submission, can be safely

relied upon to perform the common-sense function

of deciding which parts of the evidence bear on

that issue and which do not.

A similar situation arose in the Victorian

of cannabis on a farm, he was not shown to have

case of CLARKE AND JOHNSTONE, which is on our list

of authorities. In that case, the relevant appellant,

cultivated any cannabis but he was shown to have

been involved in other aspects. For instance,

he was shown to have participated in the purchase

of the farm and it was shown that he purchased
a number of items for the farm and his complaint

about his conviction was that in circumstances

in which the case against him was a knowledge case

the trial judge had not identified the evidence

which was directly admissible against him.

(Continued on page 54)

C2T60/2/ND	53	19/4/88
Ahern

MR GRIFFIN (continuing): Now, that is, of course, a complaint

which is not made here. But, in holding that there
be no substantial miscarriage of justice, the
Full Court of the Supreme Court of Victoria gave

the same reason as did the Full Court in the present

case, that is that, as a matter of logic, the

particular accused's knowledge could be proved only
by his own acts and declarations and, accordingly,
this direction was not important. If I could read

from the judgment of the Court at page 656, the

second full paragraph, starting at line 12:

The Judge in his charge stressed that

the prosecution case, whether based on the
existence of a joint enterprise or based on

aiding and abetting, in order to succeed must

prove that the accused whose case was being

considered knew the cannabis was being grown

on the farm. He several times told the jury

of the need to be satisfied that a particular
accused knew that cannabis was being grown on

the farm before convicting that accused. The

Judge emphasized that if the jury concluded

that the applicant knew the cannabis was being

grown there they might readily take the further

step and conclude that he was in agreement with

that being done and that the same applied to the

other accused.

If I could go down to about line 30:

The evidence that indicated that the applicant

knew the cannabis was being grown was evidence
directly admissible against him. This was

primarily the evidence of the close relationship between all the persons charged; the applicant's frequent presence at the farm, involvement in its

activities and purchases of supplies and stock

for it; his purchase of a rotary hoe in a name and

address other than his own and his unsworn

statement to the effect that he was a party to

an agreement or arrangement which placed Clarke

on the farm (to engage, the applicant said, in
ordinary farming activities).

If I could go down to line 42:

The evidence which Mr Faris submits should have been the subject of a direction as to its

admissibility was evidence which tended to show

the existence of the alleged agreement or

arrangement and was admissible for that purpose.

It was, however, evidence which was neutral as

to whether the agreement or arrangement was one
to engage in legitimate enterprise or to grow

cannabis. It did not, for example, include

C2T61/l/SH	54
Ahern

evidence of statements made in the absence

of the applicant which indicated that he knew

that cannabis was being grown. In addition,

of course, the Judge had told the jury that statements of an accused person made out of court could not be evidence against another

accused person. The evidence which is the

subject of this ground was no more than

neutral evidence against the background of which

the evidence directly admissible against the applicant could be considered by the jury in

deciding whether he knew that cannabis was

being grown.

Now, we would say precisely the same thing here;

that this other evidence, in the circumstances, was

neutral as to the involvement of the applicant and it

was simply evidence which could be considered by the

jury as background evidence in determining whether or

not the applicant knew that the companies were, in fact,

being dumped. Just to continue with that quotation:

In the circumstances of this case, on the issues which actually arose upon the prosecution

case as put in reliance on the alleged agreement

or arrangement, there was no disadvantage to the

applicant in the Judge's not giving a direction

as to what evidence was directly admissible

against the applicant. If the Judge had given

that direction, as he no doubt would have done

if requested, it would in this case have been of

no benefit to the applicant. The issue as to

whether the applicant was a party to an agreement

or arrangement to grow cannabis was put to the

jury as depending on their being satisfied that he

knew cannabis was being grown. On all the evidence

before them, that issue depended on evidence which

was directly admissible against him. No

miscarriage of justice therefore flowed from

the absence of the direction. (Continued on page 56)

C2T61/2/SH	55	19/4/88
Ahern

MR GRIFFIN (continuing):  Your Honours, the parallel between

that case and the present is obvious, and the lack

of the probative value of this other evidence in
the circumstances is particularly - is underlined in
the light_ of the fact that the acts and declarations
of the accused were so carefuly identified. And

the case from the outset was conducted on the footing

that they were the central facts in issue and, as I

said, the trial judge gave the jury the clearest

of directions on the issue of knowledge.

Another point we wish to make about the direction

is this: it needs to be recognis€d· that a co-conspirators

rule direction - i£ I can use that term at this stag:e had to be given

there was evidence as to what co-conspirators had done,

particularly, as I have said, by way of dumping the

companies on straws, and the jury at least had to be

told that such evidence was available to establish

the nature and extent of the conspiracy. It was not

as if a direction did not have to be given on this

The defence admii::sinn only T.rent to the fact of a	topic of what use the jury was to make of the evidence.
conspiracy between Maher, Donnelly and Hurley. It
did not go to its nature, save to the extent that it was admitted to be a conspiracy to defraud the
revenue. The admission was in terms of the offence,
that is to say,that between certain dates Maher,
Donnelly and Hurley conspired to defraud the
Connnonwealth. That was the extent of the admission.

So that the prosecution still had to call

evidence as to both the nature and the extent of the

conspiracy and, as I said before, it was admitted

without objection. So that even if the true rule is

as stated in FINN & NIBLOCK, the Queensland case

which the Court of Criminal Appeal said that the

trial judge should have followed, that evidence was

available to the jury on the issue of the nature and
extent of the conspiracy.

(Continued on page 57)

C2T62/l/JM	56	19/2/88
Ahern

MR GRIFFIN (continuing):  And if the true statement of the

rule is that such evidence may be used to prove the

nature of the conspiracy,as well as participation,

it was encumbent upon the trial judge to so state

the rule even though, as would be evident from

other directions he gave that the participation
of the applicant in this case could only be proved

by showing that he had the knowledge of the dumping

process. So, on any footing, the co-conspirators'

rule had a role to play in the case and, that being

so, it was necessary for the trial judge to seek to

state it correctly. He sought to state it in terms

of the MINUZZO direction.

Now, in so far as the trial judge may have been

incorrect in saying that such evidence could be used

on the issue of participation, as well as on the

nature and extent issue, it is submitted that the

direction was,at worst,superfluous. It was

superfluous for two reasons; first in this case, whether the applicant was a party to the conspiracy

depended upon and only upon it being shown that he

had the requisite knowledge, and that knowledge had

to be proved by reference to his own acts and

declarations; and secondly, as the Court of Criminal

Appeal said, there was no significant evidence amongst

that body of evidence which, in the circumstances,

went to proving that knowledge.

DEANE J:	But that, in one sense,supports what you put.
MR GRIFFIN:	Yes.
DEANE J:	In another sense it could be said to make it worse.

I mean, you could almost hear,on what you are now

putting a trial judge saying to the jury, "And don't

forget, where there's smoke there's fire", or "You

can judge a man by the company he keeps." You need

somehow to erect some sort of barrier between the

prima facie direction and an unqualified direction that

they can take account of the events, and so on, in

which the applicant was not directly involved.

MR GRIFFIN:  Yes. Well, I rely first and foremost in that

respect on the clear direction in relation to knowledge

and the clear direction that knowledge had to be proved

beyond reasonable doubt and, if that did not occur,

then the applicant could not be convicted even though,

on the effect of the co-conspirators'rule, the trial

judge did approach the matter in a two-stage fashion.

(Continued on page 58)

C2T63/l/HS	57	19/4/88
Ahern

MR GRIFFIN (continuing): Assuming that it is a misdirection,

it is our submission that the direction in the

circumstances is not nearly as serious as, for
example, the LIBERATO direction, which arguably

reversed or at least failed to apply the criminal

standard of proof. Nor was the jury, by this

direction, invited to give any particular legal
significance to this evidence, as opposed to

factual significance. It was not like cases in

which the judge has told the jury what corroboration

is, for example, and has then said that particular evidence might be regarded as corroboration, which

has a legal significance. Nor is it like the

similar fact situation in WILDE's case, where by

characterizing evidence as evidence which is

limited, legitimately received by way of the

similar fact doctrine, the trial judge gives the

evidence a legal significance.

This was nothing more than saying you are at liberty to look at this evidence, and one has to assume

that the jury is jury of·,··reasonable men, and if, by

looking at that evidence, they do not see anything

that demonstrates the applicant's knowledge, one must

assume that they so find. So the final outcome is,

as I have indicated, very similar to CLARKE AND JOHNS'IDNE,

and-:a,.similar result indeed applied in Filili AfID NIBIDCK

itself, where the jury, so the court held, should

n'"'t h~"'-"'e been i!).vited to t.ak~ into acc.ount a ci;~tain body	of evidence against one of the accused on the issue
of participation, and an examination of the evidence revealed that it did not go to that issue and it
was held that the proviso should be applied. The
passage to which we would refer the Court starts at the bottom of page 220, about line 43, where
His Honour Mr Justice McPherson said:

(Continued on page 59)

C2T64/l/VH	58
Ahern

MR GRIFFIN (continuing):

The present case is not one where

evidence strictly inadmissible has been

wrongly admitted at the trial. The evidence

was admissible but some of it may have been

available, on the issue of participation

in the alleged conspiracy, against only

one of the accused. The case is therefore

one in which on a joint trial of two or

more accused for what is essentially a single

offence the jury may have been left to consider

evidence against one accused in arriving

at their verdict against another.

And then he cites two previous decisions in which

the proviso had been applied in similar circumstances.

In short, as the majority in the Court of Criminal

Appeal held, the direction in so far as it embraced

participation was, in our submission, superfluous

in the circumstances and we adopt the reasoning

of the majority on this aspect of the matter.

Might I now pass to the notice of contention,

if the Court pleases.

MASON CJ: Might I ask you on that, how long do you estimate

that it would take you to present your case in

support of the notice of contention?

MR GRIFFIN:	I would think at least an hour, Your Honour.
MASON CJ:	And how long would it take you to reply,

Mr Mulholland?

MR MULHOLLAND:	Approximately an hour, Your Honour.
MASON CJ:	On that point?
MR MULHOLLAND:	On that point, yes.
MASON CJ:	Our concern is that having regard to the estimate

of time for the argument that would arise on

your notice of contention that the case would

go well beyond its alloted span today and that

it would throw into some degree of doubt the

remainder of the listings for this week. That

being so we are minded at this stage to confine

the argument to the debate that has thus far

taken place in relation to the proviso and that

would mean, of course, that Mr Mulholland would

reply at this stage to the argument that you

have advanced thus far and the matter would then

stand adjourned pending our consideration of

the argument that has so far been presented.

It would stand adjourned to the next sitting.

C2T65/l/SDL	59	19/4/88
Ahern

MR GRIFFIN: If the Court pleases.

MASON CJ: That concludes all you wish to put other than the

notice of contention?

MR GRIFFIN:  On the notice of appeal, yes, Your Honour.

MASON CJ:  Yes, very well. Now, would you reply at this

stage, Mr Mulholland?

MR MULHOLLAND:  Your Honours, there are only really two

matters that we would seek to address Your Honours

on in reply. The first is that it was never

in dispute that there was sufficient evidence

fit to go to the jury.

(Continued on page 61)

C2T65/2/SDL	60	19/4/88
Ahern

:t1R MULHOLLAND (continuing):  Your Honours, it was never

disputed that there was sufficient evidence fit
to go to the jury and the Court of Criminal Appeal
did not determine the appeal on the basis of whether

or not there was more evidPnCP in favour nf tne

prosecution, or overwhelming evidence in favour

of the prosecution and that the defence was a weak

case. And the Court of Criminal Appeal, not having

emb~rkPd unon ~uch a process, we submit that this

Court should not either.

Ahern had, in relation to every allegation made

against him, an explanation. Whether the explanations

were to be accepted by the jury were matters to be
considered by the jury, but the trouble is that what
happened at the trial meant that the jury never properly

considered the matters that they should have considered,

by reason of being directed to evidence that was inadmissible

for the purpose for which it was put.

DEANE J:	But when you reach a certain stage in a case where
the issue is knowledge of the fact, evidence of the fact is admissible on the auestion of knowledge of
rhe fact, which means that once one looks at the
whole of the evidence in this case there is surely
something to be said for the view that evidence of
the dumping was, even on the view of the law for
which you contend, evidence of knowledge of the
dumping.  To put the converse, it would have been
very powerful evidence on the question of knowledge
of the dumping to prove that there was no dumping.

:t1R MULHOLLAND: Well, Your Honour, it was never put in that

way that Your Honour has put it, and I suppose -

DEANE J: Well, the fact that it was not put that way lay

beneath the questions that I was directing to Mr Griffin.

:t1R MULHOLLAND:	Yes.
DEANE J:	I mean, it was open to the jury here to say, "Well,
now, looking at everything that happened here,
he must have known what was going on." Well, now,
if you reach that stage, evidence of what was going
on is evidence of his knowledge.

(Continued on page 62)

C2T66/l/JM	61	19/4/88
Ahern

MR MULHOLLAND:	Well, I suppose, Your Honour, it rather does depend upon which basis the jury decided it on.
Did the jury decide it on the basis of it being prima facie satisfied or did it decide it on the
basis that it was satisfied beyond reasonable doubt.
And the trouble with the direction is that they
were never told to consider it as they should have
been told to consider it.  Were they satisfied
beyond reasonable doubt?

The issue, really, for the jury in this case

was a very simple one by reason of the admissions

that were made and the trouble is that the whole

trial was bedevilled by the course that it took

from the very beginning; the jury being told at the very beginning that they could look at prima

facie connection. And in answer to what Your Honour

has said, we simply say that one just does not

know what the jury has done and it is pure guesswork.

Your Honours, the only other matter that we

wish to refer to was a reference to CLARKE AND

JOHNSTONE. CLARKE AND JOHNSTON is really not much

assistance, if any, to our friends because in

CLARKE AND JOHNSTONE the jury was not told that

they could use the evidence in order to prove the

particular accused had the requisite knowledge -

that is the difference with CLARKE AND JOHNSTONE.

And, in fact, the court there said that if the

request had been made of His Honour he would have

given the direction sought but here the jury have

been told that they can use this evidence.

Those are our submissions.

MASON CJ:  I have caused inquiries to be made about the next

two cases and it does seem, having regard to the

estimates made of their duration, that if we could

finish this case tomorrow morning it would be possible

to deal with the whole of the list as it is scheduled

this week.	Now, in those circumstances, we could,
I think, hear the argument on the notice of contention,

having regard to the estimates that counsel have

given us, and Mr Griffin if you would care to commence

your argument this afternoon we can make a start.

(Continued on page 63)

C2T67/l/AC	62	19/4/88
Ahern

MR GRIFFIN: If the Court pleases.

MASON CJ: That might be the most convenient way to deal with

it,, otherwise it entails extra expense for the parties.

MR GRIFFIN:  Yes. Your Honours, as the judges below recognized,

there was a strong stream of authority which supported
the directions which His Honour gave the jury and first

might I deal with that aspect of the direction which

was to the effect that once the conditions precedent

are satisfied the acts and declarations of a

co-conspirator can be utilized on the issue of

participation.

Now, in order to test whether there is a rule

such as that stated in MINUZZO AND WILLIAMS on this

issue, it really is necessary to focus on that aspect

normally testimonial and unless the acts of the co-conspirator have circumstantial significance in

of the rule which states that, subject to the
fulfilment of the conditions precedent, the
declarations of a co-conspirator can be admitted

against the conspirator whose case is in question.

interacting or interlocking in some way with what

the accused himself has done thus making them
admissible on the basis stated in THE ASSOCIATED

NORTHERN COLLIERIES case, unless that is the

position, they would not bear upon the accused's
participation at all except in the sense of being

background against which the accused's own acts

could be viewed.

Declarations, however, are in a different

category. A co-conspirator may well make a statement

implicating the accused and this may even be capable of being described, as one Canadian judge said, as a

hearsay declaration of devastating force. I will

come to that shortly. Assuming that the statement

is made in furtherance of the conspiracy and,

assumin7 that there is other evidence of the	accused s involvement in the conspiracy, is such
a statement admissible against the accused as
evidence of the truth of the statement or is it merely
original evidence from which the fact of conspiracy
and, perhaps, its purposes may be deduced.

(Continued on page 64)

C2T68/l/SH	63	19/4/88
Ahern

DAWSON J:  That would very seldom arise, would not it, in

this context?

MR GRIFFIN:	That would very seldom arise, yes.
DAWSON J:	I mean, if you point the gun and say, "Hands up!", the statement is just part of the res gestae.
MR GRIFFIN:	Yes, that is right.
DAWSON J:	And that would be in almost every case the situation.
MR GRIFFIN:	Yes, although the notion of acts in furtherance of the conspiracy is a broader notion than res gestae.
DAWSON J:	Well, a fortiori, yes.
MR GRIFFIN:	Yes, but it is true to say that a number of

declarations which could be described as acts in

furtherance of a conspiracy would be admitted under

the res gestae doctrine. Your Honours, to go to the

authorities that support the proposition that once the

participation in a treasonous conspiracy.

conditions precedent are satisfied,
the declarations of the co-conspirator are evidence
of the truth of the statements, could we take

Your Honours first to the case of O'CONNELL, the

MASON CJ:	What is the reference to O'Connell?
MR GRIFFIN:	It is (1844) 5 Rep.St.Tr.(N.S.) 1 - it is a

rather lengthy case that starts at the beginning of the volume, Your Honour - and at his trial evidence was admitted against O'Connell consisting of reports

in the newspaper published by a co-conspirator, one

Barrett, and these reports were left to the jury by

the trial judge as evidence of the facts asserted in

them, namely that O'Connell made certain speeches in

furtherance of the conspiracy and one of the grounds

of appeal was that this direction was incorrect and

that the evidence of Barrett's declarations were not

admissible against O'Connell and that in any event it

was not admissible to prove the facts stated in

the article.

The court held that the statements in the article

were admissible for all purposes against O'Connell.

about a quarter of the way down:

Justice Crampton at page 699 said, and I take

Secondly, it is urged that the jury

were misdirected as to the effect of

the evidence. It is contended that,

though the newspapers given in evidence

were legitimately used against their

respective proprietors, yet as against

C2T69/l/HS 64 19/4/88

Ahern (Continued on page 64A)

the other defendants they were not

evidence at all, or at least were only

evidence to a certain extent, and

that this distinction was not pointed

out to the jury in the charge.

(Continued on page 65)

C2T69/2/HS	64A	19/4/88
Ahern
MR GRIFFIN (continuing):

For example, it is said that the Pilot of

the 14th of June 1843, though evidence

against Barrett, is no evidence at all
against O'Connell, or at least that it is

not evidence that he attended the meeting
at Mallar or made the speech which that

paper asserts he did make.

Now, it appears to me that this paper is as

much evidence in this case against O'Connell as

he himself had authorised the publication

of it.

And then at 701-702, starting, Your Honours, about

three-quarters of the way down 701, which is the

left-hand column:

The mistake upon which this objection rests is that the publication is a mere confession

or admission of the publisher. It is no such thing; it is a distinct act done in furtherance of the common design, according

to preconcerted arrangement; and though

primarily and properly the Act of Barrett

alone, it is, in contemplation of law, being

an act done in furtherance of the conspiracy,

the act of all the co-conspirators also.

These observations, of course, I apply only to

so much of the paper as is published to forward

the objects of the conspiracy; the other parts

of the paper cannot be evidence against any

of the defendants. When, therefore, the

Chief Justice, on the authority of this paper, told the jury that O'Connell attended the

meeting and made the speech therein ascribed

to him, he only stated that which he was

warranted in doing, since, supposing the

existence of the conspiracy, and that Barrett

and O'Connell were joint conspirators, the

acts and declarations of one in pursuance of

the common object are, in law, the acts and declarations of both, as much as the act of one member of a mercantile firm, done in the

business of the firm, is the act of all the

members of the firm.

I therefore think that the distinction

attempted to be drawn between the purposes

for which the newspaper was evidence against

O'Connell is one not found in the law of

evidence; if evidence against him at all upon this

trial, it must have its full effect as such.

Then, Burton, J., at page 705, starting four lines

down:

C2T70/l/VH	65	19/4/88
Ahern

In addition to what has been said by

my brother Crampton upon the question, and
in perfect conjunction with his opinion

upon it, I do not feel it necessary to say

mor~ than that, upon the REX V HARDY authority,

I am satisfied that the paper was properly

received in evidence against the first

traverser,of those facts.

(Continued on page 67)

C2T70/2/VH	66
Ahern
MR GRIFFIN (continuing):	And then the

Lord Chief Justice Pennefather, and I might say

that this case went to the House of Lords on a

writ of error and the appeal was allowed on the

basis of defects in the indictment but the

authoritative on these questions as is evidenced

evidentiary points were not reviewed by the

by the fact that it is cited in Wigmore - or

the judgment of the Lord Chief Justice is cited

in Wigmore and continues to be cited there, the

Lord Chief Justice said first, at page 710, that

the letter was evidence against the publishers of the newspaper and those associated with it.

Then he said that the newspaper was evidence against

the others also. He said that the statements in

the newspaper constituted more than a mere admission

by the parties directly responsible for them and

then he made the statement which is quoted in

Wigmore which is at the bottom of page 710:

When evidence is once given to the jury

of a conspiracy, against A, B, and C, whatever

is done by A, B, or C in furtherance of the

common criminal object, is evidence against

A, B, and C, though no direct proof be given

that A. B. or C knew of it, or actually

participated in it.

And then, at pages 711 to 712, the Lord Chief Justice,

starting at about the middle of page 711 said:

To represent O'Connell as present, as making these speeches, as assuming and acting in

the leadership, was evidence, to go to the

jury, of the common design; and such

representations were acts done in pursuance

of it - evidence against Barrett; evidence

also against O'Connell; Barrett publishes

the speech as if spoken by O'Connell, as an

act in furtherance of the conspiracy ..

And if I might pass to the next paragraph:

If the conspiracy be proved to have

existed, or rather if evidence be given to

go to the jury of its existence, the acts
of one in furtherance of the common design
are the acts of all; and whatever one does
in furtherance of the common design he does
as the agent of the co-conspirators. If

Barrett, in furtherance of the conspiracy, publishes a paper and represents O'Connell

to be at a great monster meeting at Mullingar
or at Tara, and represents him as making a

speech there of exasperation or excitment,

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to which Barrett gives the personal.weight

and influence of O'Connell's efforts and of

his presence in furtherance of the common

of O Connell; acting too within the scope	desi7n, he makes that statement as the agent
an~ object for which he is employed, and thus
that statement becomes evidence of the facts against himself and against all the conspirators.

(Continued on page 69)

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MR GRIFFIN (continuing): If I might pass then to the case of

WHITAKER, a decision of the Court of Criminal

Appeal, (1914) 3 KB 1283. The charge was of

conspiracy to act corruptly in the management

of a military canteen and one, Nes~ had sent a

letter to Minto, who was Whitaker's co-accused,

and that letter made reference to Whitaker -

in particular to a letter Whitaker had written

to Ness. The letter, Your Honours, is at page 1286,

and it reads:

Dear Sirs,

Colonel Whitaker writes me to-day for his six-monthly cheque stating that as he wishes the matter kept as privately

as possible, he would like me to send

the cheque as before -

and so on. The letter was held to be rightly

admitted in circumstances in which it plainly,

Mr Justice Ambrose, in the present case in the	in our submission, went to the issue of participation. to read this letter as going to the question
of whether there was a conspiracy such as that alleged but, in our submission, that is not
possible.

The Court was a strong court. It consisted

of Justice Lawrence, Justice Lush and Justice Atkin,

and if we could take Your Honours to a passage

at page 1294, starting two lines from the bottom,

this passage appears:

It was argued that this letter was not

admissible in evidence against the appellant, and no doubt there was a stage in the hearing

of the case at which it was not admissible

against the appellant as evidence of the

admissible against Minto, and the fact that statements contained in it. It was always

it was sent is one of the facts in the case

that cannot be disputed. Beyond question

it is a genuine document. It was argued

that the statements contained in it never
became evidence against the appellant.

We do not assent to that contention.

Your Honours, in the Victorian case of SORBY which

followed MINUZZO, there is a very -

MASON CJ: It may be a convenient time to adjourn now,

and we will resume at 9.45 tomorrow morning.

AT 4.20 THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 20 APRIL 1988

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