Ardrey v The State of Western Australia

[2019] WASCA 211

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ARDREY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 211

CORAM:   BUSS P

MAZZA JA

PRITCHARD JA

HEARD:   1 APRIL 2019

DELIVERED          :   30 DECEMBER 2019

FILE NO/S:   CACR 96 of 2018

BETWEEN:   WILLIAM JAMES ARDREY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SWEENEY DCJ

File Number            :   IND 1392 of 2012

Catchwords:

Criminal law - Practice and procedure - Court's power to grant an adjournment to offender appealing against conviction - Whether offender established proper basis for court to exercise its discretion - Whether adjournment necessary to ensure appellant given a reasonable opportunity to properly present his case on appeal

Criminal law - Practice and procedure - Application for extension of time within which to appeal - Whether court should exercise its discretion to extend time - Factors relevant to the exercise of the court's discretion

Criminal law - Practice and procedure - Whether leave to appeal should be granted - Whether grounds of appeal have reasonable prospect of success

Criminal law - Practice and procedure - Appellant's applications for leave to adduce evidence on appeal - Court's power under s 40(1)(e) of Criminal Appeals Act 2004 (WA) to admit evidence for purposes of dealing with an appeal - Whether court is of the opinion that verdict of guilty should be set aside

Criminal law - Appellant convicted after trial for 18 counts of fraud under s 409(1)(d) of Criminal Code (WA) - Appeal against conviction - Whether miscarriage of justice due to alleged interference with jury - Whether miscarriage of justice due to alleged intimidation of witnesses and potential witnesses - Whether miscarriage of justice due to alleged failure of prosecution to disclose information and evidence - Whether learned trial judge erroneously excluded evidence - Whether miscarriage of justice due to alleged failure of appellant to be able to adduce fresh evidence at trial - Whether miscarriage of justice due to method of collection of evidence by overseas authorities which appellant contended was erroneously admitted at trial

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 40(1)(e)
Criminal Code (WA), s 409(1)(d)
Criminal Procedure Act 2004 (WA), s 42, s 45(3), s 95(9), sch 3 cl 7(1)(b)
Rules of the Supreme Court 1971 (WA), O 43 r 16
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(a)

Result:

Application for an extension of time within which to appeal refused
Applications in the appeal refused
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	L M Fox

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Ardrey v The State of Western Australia [2016] WASCA 154

Franchina v The State of Western Australia [2017] WASCA 56

Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199

MMC v The State of Western Australia [2018] WASCA 52

Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130

Smith v The State of Western Australia [2013] HCA 33; (2014) 250 CLR 473

Subasinghe v The State of Western Australia [2016] WASCA 217

The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

JUDGMENT OF THE COURT:

1. This is an appeal against the appellant's conviction in the District Court of Western Australia for 18 counts of fraud.  He advances seven grounds of appeal. 

2. The appellant requires leave to appeal.  The appellant also requires an extension of time within which to appeal.  Both applications were referred to the hearing of the appeal.[1]

   [1] Orders of Mazza JA dated 21 October 2018, White Appeal Book (WAB) 6.

3. On 22 March 2019, the court heard two applications described by the appellant as Application X in an appeal (Application X) and Application Z in an appeal (Application Z), both dated 15 March 2019.  The court dismissed those applications and indicated that reasons would be provided at a later date.  We have set out below our reasons for dismissing Application X and Application Z.

4. The appellant also made five further applications in the appeal, dated 25 September 2018, 4 November 2018, a further application dated 4 November 2018, an application dated 28 March 2019 (March  2019 Application), and an application described as Application C in an appeal, dated 10 January 2019 (Application C).  All of those applications were referred to the hearing of the appeal.[2]  Application C was, in substance, no different from the application in the appeal dated 28 March 2019, and we dealt with it at the hearing of the appeal as part of the latter application.

   [2] Orders of Mazza JA dated 4 March 2019, WAB 31; orders of Mazza JA dated 6 March 2019, WAB 91; order of Buss P dated 29 March 2019. 

5. For the reasons which follow, we would refuse each of the applications in an appeal.  We would refuse an extension of time within which to appeal, and we would refuse leave to appeal on each of the grounds of appeal.  The appeal should therefore be dismissed.

Factual background

1. The 18 counts of fraud of which the appellant was convicted were each in almost identical terms, namely that on a specified date between 1 February 2006 and 4 October 2006, at Perth, the appellant, with intent to defraud, by deceit or fraudulent means caused a detriment to Phoenix Eagle Pty Ltd (Phoenix), namely the payment of a specified amount of money, contrary to s 409(1)(d) of the Criminal Code.[3]The various payments totalled $394,759.38.

   [3] Combined Blue and Green Appeal Book (BGAB) 1.

2. The appellant was first tried for these offences, together with an additional count of fraud, in July 2014, before Sweeney DCJ and a jury (July 2014 trial).  The July 2014 trial was aborted on the fifth day of the trial.

3. The appellant was then tried in the District Court in early 2015.  On 3 March 2015, he was convicted of 18 of the 19 charges against him, and acquitted of the remaining charge.  The convictions were set aside by this court, following an appeal against conviction, in September 2016.[4]  A retrial was ordered.

   [4] Ardrey v The State of Western Australia [2016] WASCA 154.

4. That retrial took place between 29 May 2017 and 23 June 2017 before Sweeney DCJ and a jury (June 2017 trial).  The appellant was convicted of all 18 counts in the indictment.  He was sentenced to a total term of imprisonment of 4 years, backdated to 17 March 2016, to reflect the time he had spent in custody prior to that point. 

5. Following his release on parole, the appellant was deported by immigration authorities.  At the date of the appeal he was living in Canada, and he appeared at the appeal via audio‑link.

Overview of the cases advanced by the State and by the appellant at trial

1. For the purposes of the issues raised by this appeal, it is not necessary to outline in detail the evidence against the appellant at trial.  However, it is necessary to have an understanding of the nature of the case advanced by the State, and by the appellant, at trial.  It is convenient to do so by reference to the learned trial judge's summing up to the jury.[5]

The State's case

[5] See trial ts 5089 - 5110; 5112 - 5155.

1. The State's case was that on multiple occasions over an eight month period in 2006, the appellant defrauded Phoenix, which was a small biotechnology company.  One of Phoenix's founders, Mr Tom McArthur, was an inventor who had developed a chemical process which, when applied to vegetables or fruits, such as pawpaw, produced a product that was thought to have a therapeutic, in addition to a cosmetic, effect on skin conditions (Product).  The founders of Phoenix wanted to exploit any such potential in the Product by securing a licensing deal with a major pharmaceutical company for that purpose.  They established Phoenix as the corporate vehicle through which to pursue that objective, including by raising capital. 

2. The directors of Phoenix did not have expertise in licensing pharmaceutical products, and so began to look around for experts who could be engaged to assist them.  Early enquiries by the directors of Phoenix led them to believe that achieving a deal with a major pharmaceutical company would take over two years and would cost about $2.5 million. 

3. At the time, the appellant had become known for his association with an Australian company which had managed to license a product to a large pharmaceutical company.  One of the directors of Phoenix, Mr Mark Richardson, met the appellant in September 2005.  The State's case was that the appellant represented himself to Mr Richardson as someone with the 'know-how' and contacts to assist Phoenix to put together a licensing package for the Product which would attract the interest of a big pharmaceutical company (licensing package). 

4. Mr Richardson's evidence at trial was that the appellant told him about the team of people with whom he had worked in the past to put together a licensing package which attracted the interest of a big pharmaceutical company.  The State's case was that the appellant represented that he could put together a licensing package for the Product in a much shorter time frame and more cheaply than Phoenix had thought possible. 

5. The State contended that the appellant was aware that Phoenix was engaged in capital raising, understood that it would have to spend in excess of $2 million to put together the licensing package, that the directors had no expertise in what was required to do so, and that the appellant set out to make as much money from Phoenix as he could, and that he was prepared to engage in fraud to do so.

6. The appellant was appointed as a non‑executive director of Phoenix, and was offered an annual fee of $40,000.  In addition, he was given a budget, over which he had sole control, and authority to engage other people to undertake the work necessary to develop the licensing package for the Product. 

7. The State's case was that the appellant saw a means of steadily supplementing his income from Phoenix by engaging consultants to undertake vague, unspecified tasks, for which they would issue invoices.  The appellant would send those invoices to Mr Richardson, whose wife would arrange payment.  However, it was the appellant who confirmed that the work was done, and approved the payment of the invoices.

8. The persons purportedly engaged by the appellant to assist in developing the licensing package were Mr Franklin Chen, and an entity called Silicon Valley Pharmaceutical Partners (SVPP) or something similar.  (The State's case was that SVPP did not actually exist.)  Another person, Mr Michael Hillmeyer, was also purportedly engaged by the appellant as a consultant to assist in developing the licensing package.  Neither his role, nor the money paid to him, was in issue in the trial, and he was not called as a witness. 

9. The State's case was that Mr Chen and SVPP produced very little of value for the money paid to them, and apart from a couple of modest reports early on, which the State contended were calculated to confirm that they were producing something, the only 'work' they performed was to search for academic articles relating to the healing of wounds, to make lists of the articles, and to print them out, but without any summary or analysis.  Moreover, the State tendered documents to demonstrate that there was an obvious doubling up in the articles collated by Mr Chen and SVPP.

10. Mr Chen was the appellant's brother-in-law.  The State's case was that the appellant had represented to Phoenix's directors that Mr Chen was a medical researcher at the University of Washington, but that that was not, in fact, the case.  The State led evidence to show that a large proportion of the total payments made to Mr Chen was subsequently paid to the appellant. 

11. The State did not contend that it was fraudulent for the appellant simply to engage his brother-in-law.  Rather, the State's case was that, as the director of Phoenix, and the person who was authorised to engage experts on behalf of Phoenix, the appellant was under an obligation to disclose his familial relationship with Mr Chen to Phoenix's board of directors, to disclose the extent of Mr Chen's qualifications and why the appellant considered him suitable to be engaged to work on the licensing package, and to disclose that the appellant would derive a financial benefit from engaging Mr Chen, so that the board could make an informed decision as to whether Mr Chen should be engaged by Phoenix.  The State's case - based on the evidence of Phoenix's directors, and on documentary evidence relating to meetings of the board of directors - was that the appellant made no such disclosures.

12. The State also relied on the appellant's record of interview with police, in which the State contended that the appellant was obviously evasive about Mr Chen, and initially tried to give the impression that he could not recall whether he had dealt with Mr Chen in relation to developing the licensing package.[6]

    [6] Trial ts 5141.

13. As we have already noted, the State's case was that SVPP was a fictional entity, and that all of the money Phoenix paid to SVPP was in fact received by the appellant.  The State's case was that all of the documentation which the appellant had produced concerning SVPP's existence was fictional.  Furthermore, Mr Richardson's evidence was that in August 2007, and again in September 2008, he travelled to the United States, and visited SVPP's address, and found it to be an apartment building, and that there was nothing to indicate that any business activity was being undertaken at the premises.  In addition, the State pointed to the fact that payments to SVPP were directed to a bank account in a name identical to the first names of the appellant's parents‑in‑law.  The State contended that it could be inferred that that account was not opened in their full names, because the name 'Chen' may have raised a question as to a connection between SVPP and Mr Chen.

14. The State's case was that the appellant was obliged to disclose to the directors of Phoenix that by engaging SVPP, the appellant would derive a financial benefit from that arrangement, so that Phoenix could make an informed decision as to whether SVPP should be engaged to develop the licensing package for the Product, but that the appellant made no such disclosure. 

15. The appellant had claimed that SVPP was an entity which was in partnership with his own company.  The State contended that even if that was true, then the appellant was under an obligation to disclose the relationship, and his financial benefit from it. 

16. The State's case was that the directors of Phoenix simply trusted the appellant, that they were blinded by his reputation and their belief in what he could achieve for Phoenix, so that it was not until about September 2006 that they became concerned about what work was actually being done in return for the payments being made to the consultants purportedly engaged by the appellant to develop the licensing package.  When they made enquiries at that point, the appellant responded defensively and evasively.  It was not until some time in 2007, when the appellant handed over a large number of documents, purportedly produced by Mr Chen and SVPP, that the directors realised that the 'work' done was simply the compilation of a large number of academic articles that could have been identified by an internet search.  Moreover, Mr Richardson's evidence was that once he received those articles, he realised there was an obvious doubling up in the work purportedly done by each of Mr Chen and SVPP. 

The appellant's case

1. The appellant's case was that Mr Richardson wanted the appellant to join Phoenix, and to engage the same team who had worked with the appellant in the past, including Mr Chen, and the staff of SVPP.  The appellant's evidence was that he and Mr Richardson discussed the literature and technical work which would need to be done to develop the licensing package and they talked specifically about Mr Chen. 

2. The appellant's evidence was that he told Mr Richardson that Mr Chen was his brother-in-law, that he had been part of the team who had successfully developed a licensing package for his Australian company, and that he had done some of the literature review and background work for that project.  The appellant's evidence was also that he and Mr Richardson discussed SVPP, that he showed Mr Richardson SVPP's website, and that he told Mr Richardson that he had a financial interest in SVPP.  With that knowledge, Mr Richardson had still insisted that Phoenix engage the same consultants the appellant had used before, including SVPP, because of their proven track record. 

3. The appellant claimed that he had also disclosed his familial relationship with Mr Chen to members of Phoenix's board of directors at a dinner on 19 January 2006, the night before a board meeting.  He said that Phoenix's directors, and the wives of some of the directors, were present at that dinner.  The appellant claimed that he and his wife had discussed Mr Chen with Mr McArthur and his wife, that they discussed some research he had done, and that the appellant's wife told them that Mr Chen was her brother. 

4. Mr McArthur made a statement to the police in which he attributed that conversation to a board meeting at which the directors of Phoenix were present (McArthur police statement).  The appellant's case was that Mr McArthur's recollection was consistent with the appellant having openly talked about his brother-in-law within earshot of the whole board. 

5. The State pointed to the fact that the board minutes contained no record of such a significant issue being discussed.  Furthermore, the State contended that Mr McArthur received emails sent by Phoenix's lawyers to the directors, containing a proposed brief of evidence for referral to the police, which alleged that the appellant had failed to disclose to the board his relationship with Mr Chen.  The State contended that, at the time, Mr McArthur did not suggest that that disclosure had in fact been made.  In light of that other evidence, the State contended that the McArthur police statement was unreliable to that extent.[7]

   [7] Trial ts 5138.

6. The appellant also pointed to the evidence of another of Phoenix's directors who recalled that Mr Chen was mentioned in other early discussions with the appellant, although he denied that he had been told that Mr Chen was the appellant's brother-in-law.

7. As for the payments made by Mr Chen to the appellant, the appellant claimed that he did not ask for these payments, and did not even notice at the time that they were being made into his account.  However, he was aware that Mr Chen would be sending him money to contribute to the upkeep of the appellant's parents-in-law, and that this was to be expected, given that they had come to live in Australia, but as foreign citizens, faced expensive bills for medical treatment.  The appellant contended that it was simplistic to accuse him of receiving the money that Phoenix paid to Mr Chen.  The appellant contended that what Mr Chen transferred to him was Mr Chen's money, which he had earned.

8. The appellant's case was that the State's contention that SVPP did not exist was based on inadequate and unsatisfactory evidence.  The appellant pointed out that Mr Richardson visited SVPP's address in the United States in 2007 and 2008, whereas SVPP was working for Phoenix in 2005 and 2006.  In addition, the fact that SVPP's address was a residential building was said to be explicable on the basis that its staff worked from home, as they were retired professionals.

9. As for his record of interview, the appellant contended that that took place some years after he was involved with Phoenix, that he had no advance warning of the interview, that he was shocked to be in the situation where police wished to interview him, was surprised by their allegations, including their allegation that SVPP did not exist, and that consequently he did not recall many relevant facts in the course of that interview.  However, his evidence was that since the interview, he had had the chance to look at documents and refresh his memory, and had a much better recollection of the events.

1. The appellant also contended that much of the State's case depended on the jury accepting the evidence of Mr Richardson, but that he was not a credible witness.  He also contended that the evidence of other key witnesses could not be accepted as reliable, given the passage of time since the events in question. 

2. The appellant also relied on his prior good conduct, the fact that he held shares in Phoenix (so that it was in his interests that the company should prosper), and the fact that the alleged fraud was unsophisticated, and readily linked to him, which militated against his having planned and given effect to that fraudulent scheme.  The appellant also pointed out that some aspects of the allegedly fraudulent scheme were authentic, including the fact that Mr Chen had collated the articles and provided those documents to him.  In addition, the appellant pointed to evidence that the directors had met Mr Hillmeyer, one of the consultants he had engaged, and he had been invited to speak with the other consultants by telephone. 

3. The appellant's case was that the directors of Phoenix had sought to make him a scapegoat for Phoenix's failure to attract the interest of a big pharmaceutical company.  He contended that the delays in producing the licensing package were due to the absence of any scientific evidence for the efficacy of the Product, and delays in securing patent protection for it.  He contended that in order to maintain the confidence of Phoenix's investors, Mr Richardson sought to blame him, and, separately, the inventor of the Product, Mr McArthur, for the failure to secure a licensing arrangement for the Product.  The State's response to those contentions was that the efficacy of the Product had nothing to do with why the appellant received all of the money paid to SVPP and much of the money paid to Mr Chen.

The appellant's applications in an appeal - heard and determined before the hearing of the appeal

1. In the months leading up to the hearing of the appeal on 1 April 2019, the appellant filed numerous applications in connection with the appeal.  As we have mentioned, two of these were dealt with on 22 March 2019. 

Applications X and Z

The relief sought in Applications X and Z

1. In Application X the appellant sought:

   •Adjournment of  April 1 2019 hearing of Appeal, 'to provide further and better particulars about 'tampering' as it led to miscarriage of justice';

   •'Leave to adduce Affidavit of Michael Hillmeyer, Phoenix Eagle's '"US Representative"' to the Appeals Court, dated [15 March 2019]. 

2. In Application Z the appellant sought:

   •Amended application to adduce only 1 witness, Michael Hillmeyer;

   •Leave to adduce affidavit of Michael Hillmeyer, Phoenix Eagle's 'US Representative' to the Appeals Court dated [15 March 2019];

   •Brief adjournment to organise 'fresh' evidence provided to investigators, not adduced at district court.

The appellant's evidence and submissions in support of Applications X and Z

1. In support of Application X, the appellant filed a copy of an affidavit he had sworn on 15 March 2019.  In addition, the appellant filed a copy of an affidavit sworn by Mr Hillmeyer dated 15 March 2019 (Hillmeyer affidavit), which was the affidavit the subject of Application X.

2. In support of Application Z, the appellant filed a copy of a further affidavit he swore on 15 March 2019, and another copy of the Hillmeyer affidavit.

3. According to the appellant's affidavit of 15 March 2019, filed in support of Application X, he sought an adjournment of the appeal hearing to give him more time to prepare.  He referred to the following matters as reasons for why more time was required:

   (i)the 'logistics' of obtaining documents relevant to the appeal had delayed his preparation.[8]  He deposed that he had only recently received a copy of orders which had been made by this court on 4 March 2019, as those documents were sent to a post office box in Queensland[9] (which the appellant had nominated as his address for service) when he in fact resided in Montreal in Canada;

   [8] Appellant's affidavit sworn 15 March 2019 [2]; ts 22 March 2019 (Buss P, Mazza and Pritchard JJA), 10.

   [9] Appellant's affidavit sworn 15 March 2019 [2].

   (ii)to enable him to arrange for Mr Hillmeyer to attend the hearing to give evidence, which he thought would take some time to organise;[10]

   (iii)to enable him to re-apply to the court to adduce evidence from Mr Hillmeyer, as '[i]t was not clear why the prior Applications were refused';[11]

   (iv)because he needed more time:

   to better organize the Tampering evidence [which] establishes probable cause that [Phoenix] violated the witness-tampering statute both through his direct outreach to Hillmeyer and via his intermediary';[12]

   (v)to review 'a further … 477 page plus 15‑page affidavit of Mark Richardson, dated 29 November 2018, received in Canada in early January 2019, [and] filed with the Supreme Court Registry in WA' (Richardson affidavit);[13] and

   (vi)he needed a period 'of no less than 30 days to tidy up further filings, organize and present'.[14] 

The Hillmeyer affidavit

[10] Appellant's affidavit sworn 15 March 2019 [3].

[11] Appellant's affidavit sworn 15 March 2019 [5].

[12] Appellant's affidavit sworn 15 March 2019 [42].

[13] Appellant's affidavit sworn 15 March 209 [29].

[14] Appellant's affidavit sworn 15 Mach 2019 [23].

1. In the Hillmeyer affidavit, Mr Hillmeyer deposed that he felt 'uncomfortable'[15] testifying at the appellant's criminal trials.  He claimed that he had been:

   contacted around the time of [the appellant's] first criminal trial by a private investigator … who said that he had been tasked by Mark Richardson to set up a conversation between Richardson and myself, adding that it was in my best interests to do so.  After some time, I finally agreed.[16] 

   [15] Affidavit of Michael Hillmeyer sworn 15 March 2019, 1.

   [16] Affidavit of Michael Hillmeyer sworn 15 March 2019, 1.

2. Mr Hillmeyer stated that he spoke with Mr Richardson by telephone in June of 2015 and that Mr Richardson 'made many accusations against me, none of which are true.  He finished by saying that he would '"come after me"' once he finished with Ardrey'.[17] 

   [17] Affidavit of Michael Hillmeyer sworn 15 March 2019, 1.

3. Mr Hillmeyer deposed that in 2009, the Federal Bureau of Investigation (FBI) interviewed him in relation to Phoenix, Mr Richardson and the appellant, and that he 'truthfully gave them all of the information that I had about that matter to their satisfaction'.[18] 

   [18] Affidavit of Michael Hillmeyer sworn 15 March 2019, 2.

4. Mr Hillmeyer also deposed that he had kept records relevant to certain events and meetings which were disputed by Phoenix, including records of a meeting with the appellant and Mr  Chen:

   at the offices of Stanford Professor James Fries, Chairman of [Phoenix's] medical and scientific advisory board.  I also stayed with the inventor of [Phoenix's] intellectual property, Mr Tom Macarthur (sic) and his wife at their home in 2006, and have records and time stamped photographs.[19]

Disposition of Applications X and Z

[19] Affidavit of Michael Hillmeyer sworn 15 March 2019, 2.

1. On 22 March 2019, the court dismissed Applications X and Z, and indicated that reasons would be published in due course. 

2. As there was a considerable degree of overlap in the orders sought in Application X and Application Z, it is convenient to deal with those applications together.  In short, the appellant sought an adjournment of the hearing of the appeal, and leave to rely on the Hillmeyer affidavit in the appeal.  We turn, first, to explain why we were not persuaded that the hearing of the appeal should be adjourned.

The appellant's application for an adjournment of the hearing of the appeal

1. The nature of the court's power to grant an adjournment to an offender who is appealing against a conviction was considered by Buss JA (as his Honour then was) in The State of Western Australia v Silich.[20] We respectfully agree with his Honour's observations.  It is not necessary to set them out here.  While the court's discretion is broad and flexible, the offender must establish a proper basis for its exercise, and cogent reasons will ordinarily be required before an adjournment is granted.[21] 

   [20] The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [111].

   [21] The State of Western Australia v Silich [113] (Buss JA).

2. Four factors will usually be relevant in determining whether to grant an application for an adjournment by an offender who is appealing against conviction.  These are the nature and extent of the delay if the adjournment is granted, the reasons for the adjournment, the prejudice (if any) to the offender if the adjournment is not granted, and the prejudice (if any) to the State or the public interest if the adjournment is granted.  This list of factors is not exhaustive, and other factors may be relevant in the circumstances of a particular case.[22] 

   [22] The State of Western Australia v Silich [112] (Buss JA).

3. In the present case, we joined in the order to dismiss Applications X and Z, in so far as the appellant sought an adjournment of the hearing of the appeal, for the following reasons.

4. First, the appellant did not identify cogent reasons for the adjournment.  In so far as the appellant had experienced logistical difficulties in obtaining documents relevant to the appeal, those difficulties appear to have been of his own making.  The appellant nominated the address at which documents relevant to the appeal should be served on him.  It was incumbent on him to ensure that documents sent to that address came to his attention promptly.  In so far as the adjournment was sought to enable the appellant more time to present arguments relating to Mr Hillmeyer's evidence, that reason fell away in view of our conclusion that leave to adduce Mr Hillmeyer's evidence should be refused. 

5. In so far as the appellant sought more time in order to review the Richardson affidavit, that affidavit appears to have been filed in civil proceedings in the general division of the court, and it was not demonstrated that that document had any bearing on this appeal.  In any event, the appellant indicated that he had received that affidavit in January 2019, which was sufficient time for him to read and digest its contents in advance of the appeal. 

6. Secondly, the appellant did not demonstrate that he would suffer any real prejudice if the adjournment application were refused.  In so far as the appellant sought an adjournment to enable him to organise and present his appeal, he had had ample time to prepare for the appeal. 

7. Thirdly, the appellant sought an adjournment of at least another month.  Such an adjournment would likely have resulted in a delay of some months, having regard to the court's heavy listings. 

8. The significance of that delay needs to be viewed in the context of the protracted history of this matter.  The events the subject of the charges in the indictment occurred in 2005 and 2006.  The appellant was charged in November 2011.  A trial was listed for July 2013 but was adjourned because of the late disclosure of an expert report obtained by the State.  The trial was then relisted for hearing in November 2013.  That trial was adjourned because of the appellant's ill health.  It was relisted for hearing in July 2014.[23]  On the fifth day of that trial, the trial was aborted.  The appellant was then tried in early 2015 and the appellant was convicted on 18 of the 19 counts on the indictment.  Those convictions were set aside on appeal to this court and a retrial was ordered.  That retrial took place in May to June 2017.  The present appeal was commenced in May 2018, which was about 4½ months out of time.  In those circumstances, the public interest in the timely disposition of criminal cases, including appeals, was a weighty consideration against the adjournment of the appeal. 

   [23] Trial ts 24 July 2014, 586.

9. Fourthly, having regard to the matters raised by the appellant, we were satisfied that an adjournment was not necessary to ensure that the appellant was given a reasonable opportunity to properly present his case on appeal.

The appellant's application for leave to adduce the Hillmeyer affidavit

1. This court has the power, under s 40(1)(e) of the Criminal Appeals Act 2004 (WA) (CA Act), to admit evidence for the purposes of dealing with an appeal. The principles in relation to the exercise of the court's discretion to admit evidence on an appeal were set out in detail in Gibson v The State of Western Australia.[24] It is not necessary to repeat all that was said in that case. It suffices to say that in the context of an appeal against conviction under s 30(3) of the CA Act, the power in s 40(1)(e) must be exercised, having regard to, amongst other things, whether the Court of Appeal is of the opinion that the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported, or because of a wrong decision on a question of law by the judge, or because there was a miscarriage of justice.

   [24] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [51] - [64].

2. The appellant submitted that Mr Hillmeyer would be able to give evidence as to a number of matters.  In summary, those matters were: 

   (i)the evidence that Mr Hillmeyer gave to the authorities in the United States, which the appellant submitted was not disclosed to him by the State at his trial;[25] 

   (ii)evidence as to Mr Hillmeyer's involvement and interaction with Mr Chen, including that he had attended a meeting with Mr Chen, and his knowledge of Mr Chen's work.[26]  The appellant submitted that Mr Hillmeyer:

   was in the room when Mr Franklin Chen presented his credentials independently.  Mr Hillmeyer was the … US representative of [Phoenix], not appointed by me, appointed by Mr Mark Richardson.  Mr Hillmeyer was working for Mr Richardson … and for Mr McArthur;[27]

   (iii)evidence that, as is stated in the Hillmeyer affidavit, Mr Hillmeyer stayed with Mr McArthur and his wife, and with Mr Richardson and his wife;

   (iv)evidence to 'explain why [Mr Hillmeyer] did not come forward earlier'.[28]  The appellant claimed that the reason Mr Hillmeyer had not come forward to give evidence at the trial was:

   specifically the interference with and by investigators paid by [Phoenix] and also Mark Richardson, the managing director, threatening him himself.[29]

   [25] ts 22 March 2019 (Buss P, Mazza and Pritchard JJA) 11.

   [26] ts 22 March 2019 (Buss P, Mazza and Pritchard JJA) 13, 17.

   [27] Appeal ts 31.

   [28] ts 22 March 2019 (Buss P, Mazza and Pritchard JJA) 17.

   [29] Appeal ts 16.

3. We concluded that the appellant's application for leave to adduce the Hillmeyer affidavit in the appeal should be refused.  Our reasons for joining in orders dismissing Application X and Application Z in that respect were as follows.

4. First, the evidence in the Hillmeyer affidavit does not establish that the appellant should not have been convicted.  Having regard to the manner in which the State's case was put, the evidence in the Hillmeyer affidavit was not relevant to whether the appellant had defrauded Phoenix in the manner alleged by the State.  It appears that the appellant's view was that Mr Hillmeyer's evidence would assist to establish that Mr Hillmeyer and Mr Chen had in fact been undertaking work for Phoenix, and that the directors of Phoenix knew that Mr Hillmeyer had been engaged as a consultant for Phoenix.[30]  It was part of the appellant's case that Mr Hillmeyer met with some of the directors.  The State did not dispute that Mr Hillmeyer was a consultant engaged for Phoenix.  Whether Mr Hillmeyer had undertaken any work in connection with the licensing package, and if so, the nature of that work, was not in issue. 

   [30] Appeal ts 36 - 37.

5. Further, nothing in the Hillmeyer affidavit provides any basis for concluding that Mr Hillmeyer could have given evidence relevant to: whether the appellant had disclosed his familial relationship with Mr Chen to Phoenix's board of directors; whether he had disclosed the extent of Mr Chen's qualifications and the reasons why the appellant considered him suitable to be engaged to work on the licensing package; and whether the appellant had disclosed that he would derive a financial benefit from engaging Mr Chen, so that the board could make an informed decision as to whether Mr Chen should be engaged by Phoenix.  Similarly, nothing in the Hillmeyer affidavit provides any basis for concluding that Mr Hillmeyer could have given evidence bearing on whether the appellant had disclosed his relationship with SVPP to the directors of Phoenix, or whether the appellant had disclosed to them that, by engaging SVPP, he would derive a financial benefit from that arrangement, so as to enable Phoenix to make an informed decision as to whether SVPP should be engaged to develop the licensing package. 

6. As for the appellant's contention that Mr Hillmeyer had had a conversation with Mr Richardson and an investigator, and that he felt 'uncomfortable' about giving evidence at the appellant's trials, that evidence, of itself, is irrelevant to whether the appellant was guilty of the charges against him. 

7. Furthermore, the evidence in the Hillmeyer affidavit is vague and lacks any particularity.  In so far as Mr Hillmeyer deposed that he had records of meetings with the appellant and Mr Chen at the office of Professor Fries, or records that he (that is, Mr Hillmeyer) had stayed with Mr McArthur and Mr Richardson, that evidence was neither annexed to his affidavit, nor described with any particularity in the affidavit.  In so far as the appellant contended that Mr Hillmeyer would be able to provide the evidence he had given to the authorities in the United States, that evidence was not set out, or even described, in the Hillmeyer affidavit.  There was no basis on which to conclude that such evidence would have any relevance to whether the appellant had defrauded Phoenix in the manner alleged by the State. 

8. Secondly, the evidence in the Hillmeyer affidavit is properly characterised as 'new' evidence.  Although the appellant submitted that Mr Hillmeyer would be able to give evidence to 'explain why he did not come forward earlier',[31] there was no evidence - either from Mr Hillmeyer or from the appellant - to the effect that, at the time of his trial, the appellant was unaware of the evidence Mr Hillmeyer may have been able to give.  On the contrary, the appellant clearly was aware of the evidence that Mr Hillmeyer would have been able to give, at least in so far as that evidence might have addressed a meeting which Mr Hillmeyer and the appellant attended at Stanford University.  The appellant himself gave evidence that he and Mr Hillmeyer went to that meeting.[32]  There was nothing to support the conclusion that the appellant could not have ascertained Mr Hillmeyer's likely evidence with reasonable diligence, such as by taking steps to locate and speak with him, particularly as the evidence adduced at the trial left no doubt that the appellant and Mr Hillmeyer were well acquainted.[33]  

   [31] ts 22 March 2019 (Buss P, Mazza and Pritchard JJA) 17.

   [32] Trial ts 4446.

   [33] See, eg, trial ts 3630, 3695, 3791, 3931, 3948, 3987, 4117-4118, 4167, 4308, 4442, 4446, 4447, 4602, 4635, 4795, 4830, 4865, 4873.

9. As the new evidence in the Hillmeyer affidavit does not establish that the appellant should not have been convicted, it cannot be said that a miscarriage of justice arose from the fact that it was not led at the trial.  Accordingly, the appropriate course was to refuse the appellant's application for leave to adduce the Hillmeyer affidavit. 

10. In any event, even if the evidence in the Hillmeyer affidavit is properly characterised as 'fresh' as distinct from 'new' evidence, there is not a significant possibility that, on the basis of all of the admissible evidence (that is, the evidence in the Hillmeyer affidavit, the other evidence the appellant seeks to have admitted in the appeal and the evidence given at the retrial), a jury, acting reasonably, would have acquitted the appellant of any of the charged offences.

The appellant's applications in an appeal - heard in the course of the appeal hearing on 1 April 2019

1. The appellant made a further five applications in an appeal, which were referred to in the course of the appeal hearing on 1 April 2019.  They were:

   (i)Application in an appeal dated 25 September 2018.  This application related to grounds 3 and 4 of the grounds of appeal, and is dealt with below in the discussion of those grounds;

   (ii)Application in an appeal dated 4 November 2018;

   (iii)Further application in an appeal dated 4 November 2018.  This application related to ground 5 of the grounds of appeal, and is dealt with below in the discussion of that ground;

   (iv)March 2019 Application and Application C.  The March 2019 Application itself referred to, and was said to be in support of Application C, and the two applications did not appear to be substantively different.  It is convenient to deal with them together.

   We turn, first, to deal with the application in an appeal dated 4 November 2018. 

Application in an appeal dated 4 November 2018

1. In this application,[34] the appellant applied for:

   •Leave to adduce Supreme Court Consent Orders, signed after Verdicts, July 10, 2016;

   •Leave to adduce July 24, 2014 selected transcript pages, contradictory to Consent Orders.

   [34] WAB 35.

2. According to the 'Minutes of Orders Sought' filed by the appellant,[35] the orders he sought were:

   1.Leave be given to adduce the Consent Orders, especially Paragraph 1, which were prepared by the company submitted and signed by the company and its lawyers (Williams and Hughes), signed by the Appellant, and approved by the Supreme Court of WA, July 10 2017…;

   2.Leave be granted to cite selected brief Transcript sections of prior District Court 'Abandoned' Trial (July 24, 2014) which are relevantly also contrary to Paragraph 1 of Order 1, signed July 17, 2016.

   [35] WAB 52.

3. The Consent Orders to which the appellant referred were orders made by Kenneth Martin J in a civil action, CIV 3072 of 2011, between Phoenix (the plaintiff in the action) and the appellant (the defendant in the action).[36]  There was no evidence before this court as to the nature of that action. 

   [36] WAB 54.

4. The Consent Orders were made by the consent of the parties, on 10 July 2017, pursuant to O 43 r 16 of the Rules of the Supreme Court 1971 (WA). The orders made were:

   1.The Court declares that the Appointment Agreement made  between the plaintiff and the defendant on or about 20 January 2005, in terms set out at paragraph 12(c) of the plaintiff's amended statement of claim dated 20 July 2016 is void ab initio.

   2.Order that the 6 ordinary shares in the plaintiff which were issued to the defendant on or about 8 March 2009, pursuant to the Appointment Agreement referred to in paragraph 1 above are forfeited.

   3.Order that the defendant pay to the plaintiff forthwith the sum of $394,759.38, being the sum of the amounts claimed in paragraphs 23 ‑ 41 inclusive of the plaintiff's amended statement of claim… .

   4.Order that other than as to the matters dealt with in paragraphs 1 ‑ 3 above, judgment be entered for the plaintiff against the defendant for damages to be assessed … .

   5.The Defendant pay the Plaintiff's costs of the action … .

5. The appellant's contention was that this evidence was fresh evidence, which was not available through the exercise of 'normal diligence' at his trial[37] but which:

   significantly changes essential facts and testimony by State Prosecutor, State witnesses (especially Mark Richardson) and the Time Line heard by the Jury and learned judge.[38]

   [37] Appellant's affidavit sworn 4 November 2018 [5], WAB 39.

   [38] Appellant's affidavit sworn 4 November 2018 [5], WAB 39.

6. In support of the application, the appellant filed an affidavit he swore on 4 November 2018.[39]  Doing the best that we can, the thrust of that affidavit, and of this application for leave to adduce evidence, appears to be that the appellant regarded Phoenix's consent to the Consent Orders as fundamentally inconsistent with the position advanced by the State in the appellant's trial.  The appellant's reasoning appeared to be that the case advanced by the State at his trial was that the appellant was a director of Phoenix and owed it duties as a director, yet Phoenix's consent to the Consent Orders indicated that Phoenix's view was in fact that the appellant 'is not and was not a Director of [Phoenix], and that any contract or implied contract never existed from the beginning'.[40]  The appellant thus contended that Phoenix had adopted a position in the litigation which was contrary to the evidence given by its officers at the trial.[41]  It also appears that the appellant regarded the Consent Orders as having the effect that '[t]he directorship, and its duties, not only disappear, after verdicts they never existed, from the beginning'.[42]

   [39] WAB 38.

   [40] Appellant's affidavit sworn 4 November 2018 [4], WAB 38.

   [41] cf Appellant's affidavit sworn 4 November 2018 [4], WAB 38.

   [42] Appellant's affidavit sworn 4 November 2018 [10], WAB 40.

7. The appellant's contentions as to the relevance of the Consent Orders are devoid of any proper legal foundation. 

8. The appellant has not established that the Consent Orders are relevant to the question of his guilt of the charges in the indictment.  In  our opinion, the appellant could, by the exercise of reasonable diligence, have obtained the Consent Orders before the retrial.  The Consent Orders are 'new' as distinct from 'fresh' evidence.  There is no basis on which it could be said that, in light of the Consent Orders, the appellant should not have been convicted.  In any event, even if the Consent Orders are properly characterised as 'fresh' evidence, there is not a significant possibility that, on the basis of all of the admissible evidence (that is, the Consent Orders, the other evidence the appellant seeks to have admitted in the appeal and the evidence given at the retrial), a jury, acting reasonably, would have acquitted the appellant of any of the charged offences.  Accordingly, it cannot be said that a miscarriage of justice arose from the fact that the Consent Orders were not led at the trial.  Leave to adduce the Consent Orders should be refused.

9. In so far as the appellant sought leave to adduce into evidence copies of parts of the transcript of the July 2014 trial, those parts were not produced, nor were any particular parts of those transcripts identified, by the appellant for the purposes of the application for leave to adduce them in the appeal.  It was not clear how any part of the transcript of the July 2014 trial would have been admissible in the June  trial, or would be admissible if a retrial were ordered.  This part of the application to adduce evidence on the appeal should be refused.

10. The application in an appeal dated 4 November 2018 should be dismissed.

11. We turn, next, to deal with the March 2019 Application, together with Application C.

March 2019 Application and Application C

1. In the March 2019 Application, the appellant applied for:

   •Leave to adduce referenced affidavit of Michael Hillmeyer, Phoenix Eagle's 'US Representative' and Email of Mark Richardson, Letter of Mr LM Fox … in support of Application C, tampering… .

2. In Application C, the appellant applied for:

   •Leave to adduce testimony, about 'tampering';

   •Leave to adduce additional documents from after verdicts;

   •Leave to seal the proceedings.

3. The orders sought by the appellant in Application C were, relevantly:

   1.To call Michael Hillmeyer as a witness (per Summons…) to testify at the Hearing of the Appeal how he was intimidated in the USA, contrary to 18 US Code S 1512.  …

   2.To call Michael Hillmeyer as a witness at Hearing of Appeal (per Summons …) to confirm the meeting among himself and Prof James Fries of Stanford University, March 2006 … ;

   3.That leave to adduce the Affidavit of Prof Peter Smith be given for the Appeal hearing;

   4.If the Respondent requires, that Prof Peter Smith be summoned to testify at the Appeal hearing.

4. In support of Application C, the appellant swore an affidavit dated 10 January 2019 (January 2019 affidavit).[43] 

   [43] WAB 95.

5. In the January 2019 affidavit the appellant claimed that this court had granted leave to adduce the decision in Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd[44] (McArthur decision).  The appellant also claimed that this court had granted leave to adduce the 'Constitution of [Phoenix] (2005)' and:

   leave to refer [to] the decision by Jaffe J in the Supreme Court of New York, the Judge noting that Phoenix fails to obey its own commercial agreements (Phoenix Eagle [Company] Pty Ltd v Ardrey [2016] NY Slip Op 3116(U) June 20, 2016. 

   [44] Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130.

6. None of those claims were true. 

7. In so far as the orders sought in Application C extended to leave to adduce evidence by a witness identified as Professor Peter Smith, it appears that the appellant contemplated that that evidence would be relevant to the safety of the Product developed by Phoenix.  In the January 2019 affidavit, the appellant deposed that he sought to adduce the evidence of Professor Smith in order 'to adduce testimony that the products [made by Phoenix] were completely unsafe, based on further fresh evidence…'.[45]  The safety of the Product was irrelevant to the question of whether the appellant defrauded Phoenix in the manner alleged by the State.

   [45] January 2019 affidavit [31], WAB 117.

8. In any event, the appellant indicated that he did not pursue any application in respect of the evidence of Professor Smith.  On 4 March 2019, Mazza JA refused an application by the appellant for a witness summons to be issued to 'Dr Peter Smith'.[46]  In the course of the hearing on 22 March 2019, the appellant indicated that he 'did not question at all' the decision made by Mazza JA in respect of Dr Peter Smith.[47]

   [46] Order 4 of the orders made by Mazza JA dated 4 March 2019, WAB 31.

   [47] ts 22 March 2019 (Buss P, Mazza and Pritchard JJA) 12.

9. Finally, in so far as the appellant again sought leave, in the March 2019 Application and Application C, to adduce evidence from Mr Hillmeyer in the appeal, the basis for those applications was no different from that advanced by the appellant in Applications X and Z, to which we have already referred.  In the January 2019 affidavit, the appellant claimed that:

   Mr Hillmeyer was bullied, threatened a number of times in NYC, directly and by telephone, and thus thwarted from testifying at the Appellant's prior criminal trials.  An affidavit can be provided to the Court if required.  … He was especially bullied around his sharing of a view with Mr Tom McArthur, precisely per [McArthur decision].[48]

   [48] January 2019 affidavit [4], WAB 96.

10. For the reasons given above in respect of Applications  X and Z, we would refuse leave to the appellant to adduce the Hillmeyer affidavit, or oral evidence from Mr Hillmeyer, in the appeal.

11. The March 2019 Application and Application C should be dismissed.

The application for an extension of time within which to appeal

1. The appellant was sentenced on 21 December 2017.  The appellant was required to file the Notice of Appeal within 21 days thereafter.[49]  The Appeal Notice was filed on 29 May 2018.[50]  The appellant thus requires an extension of time within which to appeal.

   [49] Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) r 26(2).

   [50] WAB 1.

2. In support of his application for an extension of time, the appellant swore an affidavit dated 24 May 2018.[51]  In that affidavit, and in his oral submissions,[52] the appellant identified five reasons for the delay in his filing the appeal:  he had had difficulty obtaining copies of the transcript of the trial, and relevant documents, while he was in prison and in immigration detention; that in the course of a number of transfers from one prison to another, he lost various documents relevant to his appeal; his access, whilst in prison, to the resources necessary to prepare his appeal was limited; he had experienced a number of medical issues which prevented him from focusing on the preparation of his appeal; and he had no legal assistance to prepare the appeal.

   [51] WAB 8.

   [52] Appeal ts 11 - 14.

3. The appellant submitted that it would cause him an injustice if he were denied an extension of time within which to appeal. 

An extension of time should be refused

1. A single judge of the court has power to extend or refuse the time within which the appeal can be commenced, or can refer that question to the hearing of the appeal (as occurred in this case).[53]  Factors relevant to the exercise of the court's discretion to extend time include whether the delay is satisfactorily explained,[54] the length of the delay and any prejudice to the respondent if the extension is granted,[55] and the merit of the grounds of appeal.[56]

   [53] Court of Appeal Rules r 43(2)(a).

   [54] See, eg, Franchina v The State of Western Australia [2017] WASCA 56 [21].

   [55] MMC v The State of Western Australia [2018] WASCA 52 [90]; Subasinghe v The State of Western Australia [2016] WASCA 217 [5].

   [56] Subasinghe v The State of Western Australia [5].

2. In the present case, there was a lengthy delay, the appellant's difficulties in marshalling his appeal were, in essence, no different from those of any appellant who is in prison, and who is unrepresented on his or her appeal, and, for the reasons set out below, the appeal is without merit.  An extension of time in which to appeal should be refused.

The grounds of appeal

1. The appellant's grounds of appeal, and the lengthy particulars thereto, are set out in full in Annexure A to these reasons. 

2. The appellant filed written submissions, much of which was not readily comprehensible.  The appellant also made oral submissions at the hearing of the appeal.  In the discussion of the grounds below, we have endeavoured to discern the thrust of the appellant's contentions. 

Ground 1 of the grounds of appeal

1. In ground 1, the appellant contends that:

   a miscarriage of justice occurred, in that there was interference with Jurors in the District Court and the jury process during the trial (as indicated in the Transcript). 

2. In his particulars of this ground, the appellant asserted that:

   a member of the jury disclosed to the trial judge that she had been approached during the first days at trial … .  Although she was the only juror to advise the court of this approach by an external party, and she was excused … , there should have been an investigation by the court, a polling of other jurors, and re-affirmation by jurors. 

3. In addition, the appellant contended that 'there remains a reasonable apprehension that other jurors could have been similarly approached'.

4. The appellant submitted that:

   third parties approached a juror … which means they came into possession of information that identified, or is likely to identify, a person as, or as having been, a juror in particular proceedings, contrary to law.[57] 

   [57] Appellant's submissions dated 25 September 2018 [13], WAB 142 - 143.

5. The thrust of his concern appeared to be that this indicated that a third party knew of the identity of the juror in question, and that this raised a suspicion that that third party knew of the identity of other jurors, and may have been able to interfere with those other jurors also.[58] 

   [58] Appellant's submissions dated 25 September 2018 [14], WAB 143.

6. In his oral submissions, the appellant submitted that 'the composition of my jury changed, and there was no investigation'.[59]

Leave to appeal on ground 1 should be refused

[59] Appeal ts 15.

1. There was no basis for the sinister characterisation which the appellant sought to give to the events surrounding the discharge of the juror.

2. On day two of the June 2017 trial, the learned trial judge discharged one of the jurors (juror 103).  The circumstances in which juror 103 was discharged were as follows.  On the morning of day two of the trial, juror 103 reported to the sheriff's officer that the night before, her partner (who appeared to have some knowledge of the trial underway before the court) asked her if she was a member of the jury on the trial of the appellant, and proceeded to tell her that he knew the appellant and one of the key witnesses in his trial.  Juror 103 was clearly aware (no doubt because of the trial judge's directions the previous day[60]) that jurors should not discuss the case with anyone outside the jury.  Juror 103 reported the conversation she had had with her partner to the sheriff's officer, in private.[61]  Juror 103 then recorded what had occurred in a note to the trial judge.[62]  The learned trial judge made enquiries of the juror in question, and confirmed that the juror had not communicated what her partner had told her to any of the other jurors.[63]  In the circumstances, the learned trial judge concluded that the juror should be discharged.[64]

   [60] Trial ts 3613 - 3614.

   [61] Trial ts 30 May 2017, 3652 May.

   [62] Trial ts 30 May 2017, 3654 May.

   [63] Trial ts 30 May 2017, 3654 May.

   [64] Trial ts 30 May 2017, 3654 May.

3. Both counsel were present when the learned trial judge questioned juror 103.  Counsel for the appellant agreed with the trial judge's view that juror 103 should be discharged.  Neither counsel submitted that the remainder of the jury should be discharged.[65]

   [65] Trial ts 30 May 2017, 3653 May.

4. In a case where it is alleged that a miscarriage of justice has occurred because there has been a serious breach of the presuppositions of the trial, the test to be applied is whether the circumstances give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the members of the jury did not discharge their task impartially.[66] 

   [66] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 53 (Mason CJ and McHugh J); Smith v The State of Western Australia [2013] HCA 33; (2014) 250 CLR 473 [55].

5. There is nothing in the circumstances surrounding the discharge of juror 103 which gives rise to such a reasonable apprehension or suspicion.  There is no basis to conclude that any information given to juror 103 by her partner about the appellant or any witness in the trial may have been disclosed by her to any other member of the jury.  The trial continued with the remaining[67] jurors. 

   [67] 16 jurors were empanelled: see trial ts 3601.

6. As ground 1 has no reasonable prospect of success, leave to appeal in respect of ground 1 should be refused.

Ground 2 of the grounds of appeal

1. In ground 2, the appellant contends that 'a miscarriage of justice occurred during the Trial process through intimidation of witnesses and potential witness' (sic). 

2. Among the particulars of this ground, the appellant asserted that:

   'witnesses, after verdicts, disclosed that they had been approached by Directors of Complainant, and purported "investigators" of Complainant, which was not the normal behaviour', [and that] 'witnesses that the Appellant had approached to be a defence witness at the trial were approached and intimidated and they refused to appear in court and refused to give evidence which would have assisted the Appellant in his defence,' [and that] 'there is reasonable apprehension that other Defence witnesses were also approached just prior to the 2017 criminal trial'.

3. The appellant submitted that after his conviction:

   it became clear that Directors of the Complainant, and their paid Investigators, had been in direct contact with witnesses in the USA, intended to be called by the Defense.  It was, as a result of this contact and intimidation, not possible to gain director oral testimony at trial.[68] 

   He also submitted that:

   the defense at trial suffered due to witness tampering contrary to Sections 338A and B of the Criminal Code Compilation Act 1913 (WA).  As the Transcript also records, only two witnesses appeared for the Defense, Dr Philip Penfold and Dr Ian Anderson …; no US witnesses appeared.  … The relevance of these [other witnesses] would be to prove that the Appellant was not the sole conduit to Consultants, that at material times other Phoenix executives had open and unrestrained access … .  It follows that any conclusion that the Appellant was sole conduit to contact with Consultants, and that consultants had no particular qualifications were essential steps on any path to conclude that the Appellant was guilty of, nor [sic] intended to undertake, any fraudulent conduct.[69]

   [68] Appellant's submissions dated 25 September 2018 [19], WAB 146.

   [69] Appellant's submissions dated 25 September 2018 [20], WAB 146 ‑ 147.

1. No particulars were provided of the witnesses said to have been interfered with.  The only evidence the appellant sought to adduce in relation to this ground of appeal was the Hillmeyer affidavit.  We have concluded that leave to adduce that affidavit should be refused. 

2. There was no evidence whatsoever that 'other Defence witnesses were also approached just prior to the 2017 criminal trial', or of interference with other witnesses.

3. As the appellant's contentions are unsupported by any evidence, this ground of appeal has no reasonable prospects of success.  Leave to appeal on ground 2 should be refused.

Grounds 3 and 4 of the grounds of appeal

The grounds of appeal and the appellant's submissions

1. It is convenient to deal with grounds 3 and 4 together.  In ground 3, the appellant contends that:

   a miscarriage of justice occurred through the failure of the Prosecution to disclose to the Court the Supreme Court Decision, [McArthur decision], which related to both facts at trial and the Constitution of Phoenix Eagle (2005) [Phoenix's Constitution] regarding Directors.

2. In his particulars, the appellant contended, amongst other things, that that case was heard on 'parallel allegations of Fraud against Mr Tom McArthur [which] were found groundless' and that the evidence referred to in that decision supported the version of events the appellant had given to the police. 

3. In ground 4, the appellant contends that:

   a miscarriage of justice occurred through the failure of the Appellant's counsel to disclose to the Court the Supreme Court decision in [the McArthur decision] and adduce evidence from that to assist the defence of the Appellant. 

4. In his particulars, the appellant contends that his trial counsel:

   failed to identify and address evidence disclosed in this trial [that is, in the hearing which preceded the McArthur decision] which would have assisted the appellant in his defence. 

5. The appellant submitted that that failure was 'likely inadvertent'.[70]

   [70] Appellant's submissions dated 25 September 2018 [24], WAB 150.

6. The appellant also submitted that the prosecution should have disclosed a copy of the McArthur decision, but did not do so.  He also acknowledged that 'maybe the prosecution wasn't aware of it'.[71] 

   [71] Appeal ts 19.

7. The appellant submitted that the McArthur decision:

   … by a higher Court in WA, is relevant to all essential elements of criminal charges, especially at [12], [25], [29(7); (8)]; [50]. It changes the timeline and the facts as presented by the State. … Leave to adduce this [Decision] would let the Court see the [complainant] could not safely make any commercially available quantity of product.[72]

   [72] Appellant's submissions dated 25 September 2018 [22]-[23], WAB 148-149.

8. The appellant submitted that the McArthur decision was significant because 'there's material things in that particular document … that [Phoenix] was never able to commercially make a  product, any product'.[73]  He also submitted that the McArthur decision would have helped him to 'make a strong claim to have the second statement of Tom McArthur adduced'.[74] 

   [73] Appeal ts 19.

   [74] Appeal ts 22.

9. The appellant also submitted that Mr McArthur had been accused of fraud, and:

   the court, in making its decision in favour of McArthur and against fraud… relied  on statutory declarations [that] they had lost the evidence.[75]

   [75] Appeal ts 19.

10. The appellant submitted that because he had not been given a copy of the McArthur decision:

    we did not have the opportunity to cross-examine Mr Richardson or others.  Mr Richardson knew about the decision when he was testifying.  We didn't get to test the evidence with that.[76]

    [76] Appeal ts 24.

11. Grounds 3 and 4 thus boiled down to complaints by the appellant that:

    (i)He was not made aware of the McArthur decision prior to his trial, and that that gave rise to a miscarriage of justice, because the decision itself was evidence relevant to whether he was guilty of the charges against him, or because it could have been used to cross-examine Mr Richardson;

    (ii)Prior to his trial, he was not made aware of evidence discussed in the McArthur decision, and that that gave rise to a miscarriage of justice, because that evidence would have been relevant to whether he was guilty of the charges against him.

12. The appellant sought leave to adduce, as evidence in the appeal, the McArthur decision, the evidence filed in the general division of the court in respect of the proceedings concerning that decision, and a copy of Phoenix's Constitution.  That application for leave was the subject of his application in an appeal dated 25 September 2018.  We turn to deal with that application before determining whether leave to appeal should be granted in respect of grounds 3 and 4.

Application in an appeal dated 25 September 2018

1. The appellant sought leave to adduce:[77]

   Phoenix Eagle Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130 in the Appeal proceedings which was not adduced at trial and relevant [s]ections 54 and 53 of Phoenix Constitution (2005);

   And documents filed with the Supreme Court registry relevant to Particulars of the State's case.

   [77] WAB 32.

2. In support of his application, the appellant swore an affidavit[78] in which he deposed that:

   I have tried very hard to obtain proper disclosure, yet after Verdicts a parallel Decision, by a higher Court, about fraud by Mr Tom McArthur co founder and former director at material times of Phoenix Eagle, who was accused of fraud in Civil Courts, was published.  This Decision references documents not disclosed at trial to Appellant.

   …

   This Decision is directly relevant to the Appellant's testimony at trial, and the acceptance of statutory declarations from Mr McArthur and other facts, the Appellant's defence lost the obvious forensic advantages of having this disclosed.

   [78] Appellant's affidavit sworn 25 September 2018, WAB 34.

3. The McArthur decision was a decision in a civil action heard in the general division of the court (Phoenix civil action).  It was published shortly before the June 2017 trial.  In our opinion, the appellant could, by the exercise of reasonable diligence, have obtained a copy of the McArthur decision before the retrial.  For the purposes of this appeal, the McArthur decision constitutes new, as opposed to fresh, evidence. 

4. The application for leave to adduce the McArthur decision should be refused, for the following reasons. 

5. First, the McArthur decision is irrelevant to whether the appellant defrauded Phoenix in the manner alleged by the State.  The Phoenix civil action was brought by Phoenix against four defendants for the breach of various duties including an alleged breach of confidence in the use of confidential information.  The first defendant was a company established by Mr McArthur, and of which Mr McArthur had been a director.  Phoenix contended that the defendants to the action, together with Mr McArthur, invented a product, using information obtained by Mr McArthur by virtue of his position as a director and employee of Phoenix, and in disregard of the fact that he had assigned all of the intellectual property in his future inventions to Phoenix. 

6. The McArthur decision dealt with a number of interlocutory applications brought by the defendants, including an application to strike out the statement of claim.  In addition, the defendants made an application to restrain Phoenix's solicitors from continuing to act in the proceeding, because in preparing the statement of claim they had used information, which the defendants claimed was subject to an obligation of confidence, and thus acted in breach of that obligation of confidence.  In the end, the application to restrain Phoenix's solicitors from acting in the Phoenix civil action became the focus of the hearing before Allanson J, and of the McArthur decision.  Unlike the other applications before the court at that stage, which were interlocutory, the defendants' application to restrain Phoenix's solicitors from further acting was an application for final relief.[79] 

   [79] McArthur decision [38].

7. Justice Allanson held that the defendants had established that Phoenix's solicitors had used information, which was the subject of an obligation of confidence owed to the defendants, to draft the statement of claim.  He concluded it was not appropriate to restrain Phoenix's lawyers from acting in the Phoenix civil action generally, but his Honour was satisfied that Phoenix should be restrained from using the confidential information provided to it in preparing its statement of claim.  His Honour struck out the entirety of the statement of claim, but gave Phoenix leave to re-plead.

8. In the course of the McArthur decision, Allanson J outlined the nature of Phoenix's pleading and summarised the evidence set out in the affidavits relied upon by the parties for the purposes of the interlocutory applications.[80]  He made no factual findings about most of that material, save in so far as those affidavits which pertained to Phoenix's alleged use of confidential information to plead its statement of claim.  In that respect, the defendants relied on an affidavit sworn by the third defendant, which his Honour found to be relevant and admissible, to the extent that it dealt with the question of the provenance and ownership of the information said to be confidential.[81]  That part of the third defendant's affidavit evidence was not challenged by Phoenix.[82]

   [80] McArthur decision [26] ‑ [35].

   [81] McArthur decision [42] ‑ [44].

   [82] McArthur decision [44].

9. In so far as the appellant relied, in particular, on what he contended were findings in par [12], [25], [29(7)], [29(8)], [32] and [50] of the McArthur decision, those paragraphs do not contain findings of any kind. In par [12] and [25], his Honour merely referred to parts of Phoenix's statement of claim. In par [29(7)] and [29(8)], Allanson J recited the contents of an affidavit made by Mr McArthur, which itself was attached to an affidavit sworn by the third defendant. In those paragraphs, Mr McArthur claimed that from 2003, the relationship between he and his wife, and Mr Richardson, deteriorated, that the dispute concerned the financial returns from production of the product, and that Mr McArthur was 'forced to resign' as a director of Phoenix until May 2008. His Honour did not make any findings about those matters. In par [32] Allanson J referred to an affidavit sworn by Phoenix's solicitors which stated that in preparing the statement of claim, Phoenix's solicitors had had regard to a statutory declaration made by Mr McArthur, which was attached to that affidavit, but offered no explanation as to how Phoenix came into possession of that declaration. Paragraph [50] of the McArthur decision contains a discussion by Allanson J of a submission made by Phoenix, later rejected by his Honour,[83] as to what findings could be made, relevant to the restraint of the use of confidential information. 

   [83] McArthur decision [53].

10. Contrary to the submission made by the appellant, the McArthur decision was not 'heard' on, nor did it contain any determination of, 'parallel allegations of Fraud against Mr Tom McArthur [which] were found groundless' nor can it be said that the evidence referred to in that decision supported the version of events the appellant had given to the police.  The appellant's contention that the time line of the facts set out in the McArthur decision casts doubt on the time line established by the evidence at his trial was without merit. 

11. Further, in so far as the appellant seeks to rely on the McArthur decision to establish that the Product developed by Phoenix had no therapeutic value (so that the pursuit of a licensing package would be futile), that issue was also irrelevant to the question of whether the appellant had defrauded Phoenix in the manner alleged by the State. 

12. The McArthur decision does not constitute evidence of any fact relevant to whether the appellant defrauded Phoenix in the manner alleged by the State.  The McArthur decision establishes nothing more than the fact that a judge of the Supreme Court dealt with an application by the defendants to the Phoenix civil action to restrain the use of confidential information by Phoenix and to restrain Phoenix's solicitors from acting in the Phoenix civil action; found that there had been a use by Phoenix of information subject to an obligation of confidence; restrained Phoenix from using the confidential information; did not restrain Phoenix's solicitors; and struck out Phoenix's statement of claim with leave to re-plead. 

13. The McArthur decision does not establish that the appellant should not have been convicted.  In any event, even if the McArthur decision is properly characterised as 'fresh' as distinct from 'new' evidence, there is not a significant possibility that, on the basis of all of the admissible evidence (that is, the McArthur decision, the other evidence the appellant seeks to have admitted in the appeal and the evidence given at the retrial), a jury, acting reasonably, would have acquitted the appellant of any of the charged offences.  No miscarriage of justice arose from the fact that it was not led at the trial.  Leave to adduce the McArthur decision as evidence in the appeal should be refused.

14. In so far as the appellant sought leave to adduce the documents filed in the Phoenix civil action, as evidence in the appeal, those documents were not identified in the application.  The appellant did not establish that any of the documents filed in the Phoenix civil action (whatever they were) would themselves have constituted evidence relevant to whether he had defrauded Phoenix in the manner alleged by the State.  There is no basis for concluding that any miscarriage of justice arose from the fact that none of those document were adduced as evidence at the June 2017 trial.  The application for leave to adduce any such material should be refused. 

15. In so far as the appellant sought leave to adduce Phoenix's Constitution as evidence in the appeal, he did not annex a copy of Phoenix's Constitution to his affidavit.  Phoenix's Constitution was clearly in existence at the time of the trial.  In our opinion, the appellant could, by the exercise of reasonable diligence, have obtained Phoenix's Constitution before the retrial.  Phoenix's Constitution is 'new' as distinct from 'fresh' evidence.  The appellant did not establish any basis for concluding that he should not have been convicted in view of the content of Phoenix's Constitution.  In any event, even if Phoenix's Constitution is properly characterised as 'fresh' evidence, there is not a significant possibility that, on the basis of all of the admissible evidence (that is, Phoenix's Constitution, the other evidence the appellant seeks to have admitted in the appeal and the evidence given at the retrial), a jury, acting reasonably, would have acquitted the appellant of any of the charged offences.  It therefore cannot be said that a miscarriage of justice arose from the fact that that document was not adduced into evidence at the trial.  In so far as the appellant sought leave to adduce Phoenix's Constitution as evidence in the appeal, the application should be refused.

16. We would therefore dismiss the application in the appeal dated 25 September 2018.

Leave to appeal on grounds 3 and 4 should be refused

1. Having concluded that leave should be refused to adduce into evidence the McArthur decision, the documents filed in the Phoenix civil action, and Phoenix's Constitution, there is no evidentiary foundation for grounds 3 and 4, and leave to appeal in respect of grounds 3 and 4 should therefore be refused.

2. The appellant submitted that the McArthur decision referred to evidence not disclosed at the trial which was not available to him prior to the trial.  He submitted that that evidence was:

   relevant to the issue of proper disclosure, and to the issue of 'sole conduit' as fresh evidence shows genuine business records Consultants corresponding directly with University of Queensland Phoenix advisors … and with proper disclosures of related party matters, as per Constitution of Phoenix Eagle.[84] 

   [84] Appellant's submissions dated 25 September 2018 [26], WAB 151 ‑ 152.

3. In so far as the appellant contended that the State failed to disclose the McArthur decision to the appellant, there was no evidence to suggest that the State's prosecutors 'had the McArthur decision in their possession but failed to disclose it, contrary to their obligations of disclosure.[85]

   [85] Criminal Procedure Act 2004 (WA), s 42, s 45(3) and s 95(9).

4. For completeness, we note that in the course of his submissions, the appellant contended that other evidence was not disclosed to him.  By way of example, he referred to the Richardson affidavit, which he claimed to have received in January 2019, which he submitted proved that Mr Hillmeyer had taken Mr Chen to meet other associates of the appellant.[86]  There was no evidence to suggest that the State's prosecutors had obligations of disclosure on any application.  The Richardson affidavit was not in evidence on the appeal, nor was that affidavit the subject of an application for leave to adduce it into evidence on the appeal. 

   [86] Appeal ts 18.

5. The appellant submitted that he had been receiving documents:

   which seem to be held by [Phoenix] and their lawyers, not by the police [who] dealt like cards in a poker game whenever it suits rather than what I believe the rules of criminal procedure are.[87] 

   [87] Appeal ts 20.

6. The documents to which the appellant referred appeared to be documents in civil proceedings. There was nothing to suggest they were relevant to whether the appellant defrauded Phoenix in the manner the State alleged or to the appellant's defence.

7. Neither grounds 3 nor 4 have any reasonable prospect of success, and leave to appeal on both grounds should be refused.

Ground 5 of the grounds of appeal

1. In ground 5, the appellant contends that the trial judge:

   wrongly excluded the further Statement of Tom McArthur, the provenance and content of which is most helpfully read into the transcript of the (2014) Abandoned Trial, at [ts 581] and which takes the Statement of Police by Mr McArthur much further in terms of relevant Particulars, Essential Elements, and Video evidence to Police.

2. The appellant also submitted that the learned trial judge erred in excluding the further statement of Mr McArthur when the same statement 'was accepted in prior trials before this same learned Judge', and that the learned trial judge 'previously ruled differently, in analogous situations'[88] about the admissibility of that statement in the course of the July 2014 trial. 

   [88] Appellant's submissions dated 25 September 2018 [25], WAB 151.

3. The further application in an appeal dated 4 November 2018 pertained to ground 5 of the appeal.  We turn to deal with that application at this point.

Further Application in the appeal dated 4 November 2018

1. In this application,[89] the appellant applied for:

   Leave to adduce Second Statement of Tom McArthur, as read into Abandoned Trial Transcript with consent of prosecution at that time …

   [89] WAB 56.

2. The reference to the Abandoned Trial appears to be a reference to the July 2014 trial.

3. In support of this application, the appellant swore an affidavit dated 4 November 2018.  No document identified as the Second Statement of Mr Tom McArthur (Second Statement) was annexed to the appellant's affidavit.

4. Again, the appellant deposed that he had been 'given leave to adduce [the McArthur decision]'.[90]  That was not correct. 

   [90] Appellant's affidavit sworn 4 November 2018 [35], WAB 44.

5. The appellant also deposed that:

   the Second Statement of Tom [McArthur], and indeed the Trial Transcript section from [the abandoned trial] leave no doubt as to the Second Statement document's validity and provenance which was discussed at length and read into the transcript of the Abandoned trial, but the (same) learned judge, DCJ Sweeney, did not permit it to be shown at the District Court trial.  A miscarriage of justice occurred by the combination of the jury not being able to see (a) this Second Statement of Tom [McArthur], nor (b) this Supreme Court [2017] Decision 130.[91]

   [91] Appellant's affidavit sworn 4 November 2018 [3], WAB 59.

1. The Second Statement, to which the appellant referred, appeared to be a reference to a statement, or proof, obtained by the appellant's counsel, from Mr McArthur, in the course of counsel's preparation for the July 2014 trial.  A copy of the Second Statement was not before this court on the appeal.

2. The Second Statement was not in evidence in the June 2017 trial. 

3. The position in respect of Mr McArthur's evidence in the July 2014 trial of the appellant was as follows.  Mr McArthur was named as a witness for the State.[92]  At the commencement of the July 2014 trial, it emerged that Mr McArthur was unwell and not in a position to give evidence at that time.  After the trial had progressed for several days, it became clear that Mr McArthur would not be in a position to give evidence for the duration of the trial.[93]  The appellant's counsel then made an application that the jury be discharged.[94]  The trial judge heard lengthy submissions about what could be done in the circumstances.  In the course of argument, counsel referred to the McArthur police statement, which Mr McArthur had signed.[95]  Counsel for the State indicated that, for the purposes of the July 2014 trial (but not for any future trial, if instead the jury was discharged) he would not object to the McArthur police statement being read into evidence.[96]  In the course of his submissions at the July 2014 trial, counsel for the appellant indicated that Mr McArthur had provided a statement to him, which Mr McArthur had signed.[97]  It appears that that statement was the Second Statement.  In the July 2014 trial, it was not suggested that that statement should be read into evidence, and there was no indication by counsel for the State that the State would consent to that course.[98]  The trial judge concluded that the proper course was for the jury to be discharged.[99]  Accordingly, the position was that neither the McArthur police statement, nor the Second Statement, were read into evidence in the course of the July 2014 trial, prior to the jury being discharged.

   [92] Trial ts 24 July 2014, 456, BGAB 76.

   [93] Trial ts 24 July 2014, 510, BGAB 130.

   [94] Trial ts 24 July 2014, 507, 509, BGAB 127, 129.

   [95] Trial ts 24 July 2014, 519 - 524, BGAB 139 - 144.

   [96] Trial ts 24 July 2014, 518, BGAB 138.

   [97]  Trial ts 24 July 2014, 519, 521, BGAB 139, 141.

   [98]  Trial ts 24 July 2014, 587.

   [99]  Trial ts 24 July 2014, 588.

4. In the course of the June 2017 trial, Mr McArthur did not give evidence.  The State's position by then was that it had declined to call Mr McArthur on the basis that the State regarded him as an unreliable witness.  Nevertheless, the State had summonsed Mr McArthur to make him available should the appellant wish to call him.  The appellant's counsel submitted that Mr McArthur's health was such that Mr McArthur was not in a position to give evidence by the time of the trial.

5. The trial judge acceded to an application by the appellant's counsel, pursuant to sch 3 cl 7(1)(b) of the Criminal Procedure Act 2004 (WA) (CP Act), for the McArthur police statement to be read into evidence. That statement was read to the jury in full.[100]

   [100] Trial ts 4973 - 4975 June. 

6. Counsel for the appellant did not make any application that the Second Statement should be read to the jury in the June 2017 trial.  Contrary to the appellant's assertion, it was not the case that the learned trial judge refused an application by the appellant's counsel to read the Second Statement into evidence.  The appellant acknowledged that his counsel at the June 2017 trial did not ask the trial judge to read the Second Statement to the jury.[101]  

   [101] Appeal ts 24.

7. The Second Statement was clearly in the possession of the appellant at the date of his trial.  It does not constitute fresh evidence. 

8. A copy of the Second Statement was not provided to this court.  There was nothing to support the conclusion that that statement contained evidence which was materially different from the McArthur police statement. 

9. Furthermore, it cannot be assumed that the Second Statement would be admissible pursuant to sch 3 cl 7(1)(b) of the CP Act. There is reason to think that it would not meet the requirements of that clause (in particular, compliance with sch 3 cl 4 of the CP Act). In the course of the 2017 trial, counsel for the appellant referred to the Second Statement and observed that it 'doesn't meet the requirements of the [CP Act] and so we're not seeking to rely on that'.[102]

   [102] Trial ts 4921. 

10. No basis has been established on which this court could conclude that, having regard to the Second Statement, the appellant should not have been convicted.  Consequently, it cannot be said that a miscarriage of justice arose from the fact that the Second Statement was not adduced in evidence at the June 2017 trial. 

11. Accordingly, we would refuse the application for leave to adduce the Second Statement in evidence in the appeal. 

Leave to appeal on ground 5 should be refused

1. The appellant's contention that the trial judge 'wrongly excluded the further Statement of Tom McArthur' was not correct.  There was no application to adduce that Statement into evidence in the June 2017 trial, and the learned trial judge made no ruling on any such application.

2. In so far as the appellant submitted that the learned trial judge erred in that the Second Statement 'was accepted in prior trials before this same learned Judge', and that her Honour 'previously ruled differently, in analogous situations' about the admissibility of that statement,[103] those submissions were also wrong.

   [103] Appellant's submissions dated 25 September 2018 [25], WAB 150 - 151.

3. Counsel for the State invited us to conclude that if counsel for the appellant had read Mr McArthur's Second Statement, it would have disadvantaged the appellant, or at the least would not have added to the evidence that was read in, so that it could be inferred that a forensic decision was made not to adduce it into evidence.[104]  It is unnecessary to consider those submissions given our conclusion that leave to adduce the Second Statement in evidence in the appeal should be refused.

   [104] Appeal ts 34.

4. The appellant has not established that ground 5 has reasonable prospects of success, and leave to appeal on ground 5 should therefore be refused.

Ground 6 of the grounds of appeal

1. In ground 6, the appellant contends that 'a miscarriage of justice occurred through the failure of the appellant to be able to adduce fresh evidence at trial that supported his defence'. 

2. In his particulars, the appellant contended that that fresh evidence:

   shows in particular the allegation the Appellant was 'sole conduit' for communications with Consultants at issue is incorrect in fact, takes away all allegations related to Particular 1 at trial, and Counts 1 - 7 and 11 - 18 are unsupportable.

3. The 'fresh evidence' was not identified by the appellant, nor was a copy of it annexed to any application for leave to adduce that evidence on the appeal. The appellant was asked to identify the fresh evidence which he sought to adduce. He pointed to an affidavit sworn by Mr Richardson dated 8 October 2018, which was used in the proceedings before Kenneth Martin J referred to at [74] above. The appellant claimed that that affidavit contradicted the evidence Mr Richardson gave in the course of the trial, to the effect that the appellant was the sole conduit between Phoenix and the consultants engaged to put together the licensing package.[105]  A copy of the affidavit of Mr Richardson dated 8 October 2018 was not provided to the court. This court expressly drew to the appellant's attention that the court only had before it material adduced into evidence on the appeal.[106]

   [105] Appeal ts 26.

   [106] Appeal ts 27.

4. The appellant then referred[107] to documents annexed to his affidavit dated 28 March 2019.  The first of those was a copy of correspondence between the court and the Director of Public Prosecutions, the second was an email chain 'about computers crashing' and evidence being lost, while the third was the Hillmeyer affidavit.[108]  Those did not appear to be the 'fresh evidence' which was the subject of the appellant's submissions.

   [107] Appeal ts 28 - 29.

   [108] Appeal ts 29 - 30.

5. The appellant submitted that in the Hillmeyer affidavit Mr Hillmeyer stated that he had given the FBI all the information he had in relation to the appellant.  The appellant contended that such information was never disclosed to him.  He claimed that he had 'a right of disclosure of all the evidence, whether it's for me or against me, whether it's in the United States or whether it's elsewhere'.[109]  The appellant did not adduce any evidence to suggest that the evidence given by Mr Hillmeyer to the FBI was in the possession of the State's prosecutors at the time of the June 2017 trial, so as to support the conclusion that they were under an obligation to disclose it to the appellant.  There was nothing to indicate what the nature of that evidence was, or why it was relevant to whether the appellant had defrauded Phoenix in the manner alleged by the State or why it was relevant to the appellant's defence.

   [109] Appeal ts 30.

6. The appellant also submitted that other documents had been produced to him in civil proceedings in the Supreme Court, but were not in evidence in the appeal or his criminal trial.[110]  These included the Richardson affidavit.  The appellant claimed that the Richardson affidavit was not disclosed to him prior to his criminal trial.[111] 

   [110] Appeal ts 29 - 30.

   [111] Appeal ts 29 - 30.

7. The appellant did not make an application for leave to adduce a copy of the Richardson affidavit as evidence in the appeal, nor did the appellant provide a copy of that affidavit to the court.  There was no evidence to support the conclusion that the Richardson affidavit was in the possession of the State at the time of the June 2017 trial, so as to support the conclusion that the State was under an obligation to disclose it to the appellant.  Furthermore, even if it is assumed, for present purposes, that the appellant was correct to contend that the Richardson affidavit demonstrated that Mr Richardson gave documents to, and authorised payments to, Mr Hillmeyer, those matters were not in issue at the June 2017 trial.  As we have already noted, it was not in dispute that Mr Hillmeyer had been engaged as a consultant and had been paid by Phoenix for working on the development of the licensing package. 

8. Finally, the appellant submitted that the 'fresh evidence' to which he referred was 'relevant to patient safety and legality of conducting animal and human trials and concerns about the ability of the company to safely manufacture Product' (sic).[112]  As we have already observed, the safety of the Product was not in issue in the June 2017 trial, and was not relevant to the question whether the appellant was guilty of the charges in the indictment. 

   [112] Appellant's submissions dated 25 September 2018 [26], WAB 152.

9. Ground 6 has no reasonable prospects of success.  Leave to appeal on ground 6 should be refused.

Ground 7 of the grounds of appeal

1. In ground 7, the appellant contends that:

   a miscarriage of justice occurred through the method of collection of evidence in the United States which violated the Appellant's USA Constitutional Right under the 4^th Amendment of the US Constitution and was wrongly admitted into evidence in the trial. 

2. The appellant did not expressly identify the evidence which he contended was wrongly admitted at his trial.  Rather, the appellant submitted that 'a large portion of the evidence presented in [the] District Court, as such, is 'fruit of the poison tree'.[113]

   [113] Appellant's submissions dated 25 September 2018 [27], WAB 154.

3. The respondent confirmed that two categories of evidence adduced at the June 2017 trial were provided to the respondent by law enforcement authorities in the United States, namely various banking records, and Mr Chen's academic transcript and employment records from the University of Washington.[114] 

   [114] Respondent's submissions [55], referring to trial ts 4385, 4393, Exhibits 84, 85, 86, 88, 89.

4. It was not at all clear what conduct is said to have constituted the violation of the appellant's rights, under the Constitution of the United States, in relation to that evidence (or any other evidence adduced at the trial).

5. Furthermore, it is not clear how a breach of any constitutionally derived right enjoyed by the appellant, under the Constitution of the United States, in relation to evidence obtained in the course of an investigation in the United States would have been relevant to the admissibility of evidence in the appellant's trial in the District Court. 

6. The appellant has not demonstrated that ground 7 has reasonable prospects of success.  Leave to appeal on ground 7 should be refused.

Conclusion

1. For these reasons, leave to appeal should be refused on all grounds.  The court should make the following orders to determine the appeal:

   1.The appellant's application for an extension of time within which to appeal is refused;

   2.The appellant's applications in an appeal dated 25 September 2018, 4 November 2018, a further application dated 4 November 2018, an application dated 28 March 2019, and an application dated 10 January 2019, are refused;

   3.Leave to appeal on all grounds of appeal is refused;

   4.The appeal is dismissed.

Annexure A

Appellant's grounds of appeal

Ground 1 of appeal                Jury Tampering

A miscarriage of justice occurred in that there was interference with Jurors in the District Court and the jury process during the trial (as indicated in the Transcript).

Particulars

1. A member of the jury disclosed to the trial judge that she had been approached during the first days at trial (see Application in an Appeal 1 for transcript pages).  Although she was the only juror to advise the court of this approach by an external party, and she was excused specifically because of advising the court about this information, there should have been an investigation by the court, a polling of other jurors, and re-affirmation by jurors.

2. There remains a reasonable apprehension that other jurors could have been similarly approached, who did not come forward with this information.

3. There should be a reasonable apprehension that the decision of the remaining jury members to convict the Appellant on counts 1-8 is tainted with doubt.

4. The High Court of Australia and WA Appeals Court authorities are cited with respect to extrinsic influences on jurors, and witnesses, in Submissions attached.

Ground 2 of appeal                Jury intimidation

A miscarriage of justice occurred during the Trial process through intimidation of witnesses and potential witness.

Particulars

1. Witnesses, after verdicts, disclosed they had been approached by Directors of Complainant, and purported 'investigators' of Complainant, which was not the normal behaviour.

2. Witnesses that the Appellant had approached to be a defense witness at the trial were approached and intimidated and they refused to appear in court and refused give evidence which would have assisted the Appellant in his defense.

3. There is reasonable apprehension that other Defense witnesses were also approached just prior to the 2017 criminal trial of Appellant.

4. It is the job of the police and investigating authorities to contact defense witnesses, the timing of the most recent contacts by Complainant to defense witnesses prior to the most recent criminal trial in 2017 is not for any other purpose but interference.

5. In the trial Transcripts of the Abandoned trial (2014) there is sworn testimony by Complainant Directors they approached witnesses directly, even trespassing, entering private premises without permission, questioning residents and neighbors, activities properly undertaken by police and investigating authorities.

6. In Sentencing comments, the learned judge commented (T5250) that the [sic] she had no confidence in the Police or investigating authorities themselves secured documents nor investigated during the 'long delays'.

Ground 3 of appeal - Failure of the Prosecution to make Full and Proper Disclosure

A miscarriage of justice occurred through the failure of the Prosecution to disclose to the Court the Supreme Court Decision, Phoenix Eagle Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130, which related to both facts at trial and the Constitution of Phoenix Eagle (2005) regarding Directors.

Particulars

1. The case of Phoenix Eagle Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130 was heard on and parallel allegations of Fraud against Mr Tom McArthur were found groundless;

2. The evidence in that recent Supreme Court case was that Tom McArthur said that Phoenix lacked the capacity to manufacture a commercially available product at all material times, Phoenix lacked proper patent protection, that payments to family and related parties at Phoenix and that allegations by Mr Richardson of fraud were unfounded.

3. It is Relevant to the Appellant's case because, in sworn testimony, the parties accepted that (a) the University of Western Australia independently assessed the Phoenix product as unsafe, (b) Directors of Phoenix internally emailed, and it was adduced at trial such emails, safety and contamination concerns as unsafe due to 'mould' growing, (c) testing on animals was forbidden, and (d) the Appellant testified that the materials handed over were components of licensing and commercial 'package' documents but without a safe product it would have been illegal and wrong to provide - or ask consultants to provide - analysis saying that the unsafe product was ready to license, (f) Mr Tom McArthur co-founder and inventor clearly produced and adduced to Supreme Court of WA material not disclosed to the Appellant at Trial about essential elements including (g) Mr McArthur was employing his own wife and daughter being paid by Phoenix and working for competing products concurrent to working with Phoenix, related also to essential elements and particulars at trial and (h) the pattern of the Chief witness Mr Richardson of Phoenix accusing parties of fraud when the company encounters problems.

4. The evidence given this trial and in the Decision supports the Appellant evidence given to police, contradicts the State's case, essential elements of particulars at trial, and facts presented to the Jury, not to mention the Decision pointing to existence of significant evidence not disclosed to the Defense at trial, helpful to Defense, related to T5250.

5. The failure to adduce the evidence disclosed also meant that the learned Judge made her own decisions on materiality of certain evidence the Jury saw, and did not see, especially when it was the State who repeatedly called Mr MacArthur, company inventor and co-founder, an 'unreliable witness' which the Jury saw, without seeing this Decision.

Ground 4 of appeal - Appellant's counsel erred in failing to identify and adduce the relevant Phoenix Eagle Pty Ltd v McArthur [2017] WASC 130 case

A miscarriage of justice occurred through the failure of the Appellant's counsel to disclose to the Court the Supreme Court Decision, Phoenix Eagle Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130 and adduce evidence from that to assist the defense of the Appellant.

Particulars

1. The Appellant's Counsel failed to identify and address evidence disclosed in this trial which would have assisted the Appellant in his defense.

2. It may be that the Appellant's Counsel, who is an experienced and respected attorney, was unaware of the existence of this Decision.

3. Nonetheless the Appellant's Defense at trial was caused a prejudice and reasonable opportunity of acquittal.

Ground 5 of appeal - Trial Judge Excluded from Evidence in the form of a sworn and proofed Statement of Tom McArthur

The trial Judge erred and wrongly excluded the further Statement of Tom McArthur, the provenance and content of which is most helpfully read into the Transcript of the (2014) Abandoned Trial, at T581 and which takes the Statement of Police by Mr McArthur much further in terms of relevant Particulars, Essential Elements, and Video evidence to Police.

Particulars

1. Tom McArthur swore a Statement of Evidence to the Police, originally intended as a Prosecution Witness.

2. The Prosecution could not bring Tom McArthur to the trial as a witness, but the State further stated he was considered not to be a witness of truth.

3. The evidence in the further Statement, which the learned Judge in 2014 stated was properly taken and proofed, and was crucial evidence in respect of the Appellants credibility in that the evidence in the statement supported and repeated the evidence that the Appellant gave at trial.

4. The materiality of this Statement was an issue for the Jury, not to be excluded, it related directly to both remaining Particulars at Trial, and to the Video interview with Police by Appellant.

5. The material in this properly proofed statement agrees with the Decision of the WA Supreme Court in Phoenix Eagle Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130, which was also withheld at Trial. The Jury never saw either of these documents.

Ground 6 of appeal - Fresh evidence has come to light since the Appellant's criminal trial, relevant to the Appellant's Defense

A miscarriage of justice occurred through the failure of the Appellant to be able to adduce Fresh Evidence at trial that supported his defense.

Particulars

1. Further fresh evidence, which supports the Appellant's defense against particulars at trial, and essential elements, has come to light;

2. Through normal diligence, it was not possible to obtain this evidence prior, most notably USA based evidence, filed with relevant authorities during material times.  The appellant's passport had been taken away since 2011.

3. Fresh evidence shows in particular the allegation the Appellant was 'sole conduit' for communications with Consultants at issue is incorrect in fact, takes away all allegations related to Particular 1 at trial, and Counts 1-7, and 11-18 are unsupportable.

4. Appellant seeks leave, through Application in an Appeal, to narrowly focus on a few key elements of fresh evidence, relevant to the Appeal.

5. Appellant understands this is a Court of Appeal, and not Court of Review.

Ground 7 of appeal - Tainted Evidence from the United States

A miscarriage of justice occurred through the method of collection of evidence in the United States which violated the Appellant's USA Constitutional Right under the 4^th Amendment of the US Constitution and was wrongly admitted into evidence in the trial.

Particulars

1. Appellant seeks leave, through Application in an Appeal, to adduce evidence about the mechanisms by which criminal charges and 'third party doctrine' material was obtained for the Prosecution.

2. Tainted evidence wrongly collected is inadmissible in the trial.

3. Phoenix Eagle is, concurrently, adducing evidence to other Courts not properly disclosed in WA Criminal matters, and the learned judge lacked 'confidence' (T5250) that all material in Appellant's criminal trial was properly secured by police and investigating authorities.

4. The wrongful admission of this evidence has prejudiced the Appellant's defense and the Appellant has lost a reasonable opportunity of acquittal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KL
Associate to the Honourable Justice Buss

30 DECEMBER 2019