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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ARDREY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 154

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 13 MAY 2016

DELIVERED : 1 SEPTEMBER 2016

FILE NO/S: CACR 109 of 2015

BETWEEN: WILLIAM JAMES ARDREY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :LEVY DCJ
File No  :IND 1392 of 2012

Catchwords:

Criminal law - Appeal against conviction - Indictment containing 19 counts of fraud - Appellant convicted after trial of 18 counts - State's case run on the basis of six alternative particulars of deceit or fraudulent means - Jury unanimity - Unanimity required on all essential elements or ingredients of each offence - Jurors required to agree unanimously as to the particular deceit or fraudulent means that was used by the appellant and that caused the alleged detriment - Trial judge failed to give the required directions - New trial ordered

Criminal law - Appeal against conviction - Additional evidence on appeal - Whether verdicts of guilty were unreasonable or could not be supported having regard to the evidence adduced at trial and the additional evidence

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a) , s 30(4), s 39, s 40
Criminal Code (WA), s 409(1)(d)

Result:

Leave to appeal granted on the ground of appeal
Appellant's application for leave to adduce additional evidence and to add a proposed additional ground of appeal dismissed
Appeal allowed
Judgments of conviction on counts 2 to 19 set aside
New trial ordered on counts 2 to 19

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr S W O'Sullivan

Solicitors:

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

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

Brown v The Queen (1984) 79 Cr App R 115
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
DPJB v The State of Western Australia [2010] WASCA 12
Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Infirri v The Queen (1981) 5 A Crim R 132
Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Loone v The State of Tasmania [2008] TASSC 7; (2008) 17 Tas R 378
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Magnus v The Queen [2013] VSCA 163; (2013) 41 VR 612
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
More v The Queen (1988) 86 Cr App R 234
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Pratten v The Queen [2014] NSWCCA 117
R v Dale [2012] QCA 303
R v Lake [2007] QCA 209; (2007) 174 A Crim R 491
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299
Rinaldi v The State of Western Australia [2007] WASCA 53
Sio v The Queen [2016] HCA 32
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Table of Contents

Buss P's reasons........................................................................................................................ 5
Overview of the State's case at trial
Overview of the appellant's case at trial
The particulars of the counts in the indictment
The ground of appeal
The appellant's application for leave to adduce additional evidence and to add a ground of appeal
The appellant's orders wanted
The trial judge's directions
The ground of appeal: relevant legal principles
The ground of appeal: the State's submissions
The ground of appeal: its merits
The appellant's application for leave to adduce additional evidence: relevant legal principles
The proposed additional ground of appeal: relevant legal principles
The appellant's application for leave to adduce additional evidence and add the proposed additional ground of appeal: the appellant's submissions
The appellant's application for leave to adduce additional evidence and add the proposed additional ground of appeal: their merits
The outcome of the appeal
Interim bail applications
The State's application in the appeal dated 21 June 2016
Mazza JA's reasons................................................................................................................. 36
Mitchell JA's reasons.............................................................................................................. 38

Ground 1

Proviso

Ground 2
New trial

Particulars
State's opening
Evidence of Mark Richardson
Evidence of Paul Wright
Evidence of George Baumanis
Evidence of Henri Nemorin
Evidence of Richard McCloskey
Evidence of Detective Sergeant Reynolds
Evidence of the appellant
Evidence of Susan Ardrey
Assessment of State's case
Matters personal to the appellant
Conclusion as to new trial

Interim bail applications

BUSS P: This is an appeal against conviction.
The appellant was charged on indictment with 19 counts of fraud, contrary to s 409(1)(d) of the Criminal Code (WA) (the Code). Each count alleged that on a specified date, 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. The appellant pleaded not guilty.
On 3 March 2015, after a five‑week trial before Levy DCJ and a jury, the appellant was convicted of 18 counts (counts 2 to 19) and acquitted of one (count 1).
The total amount involved in the fraud offences of which the appellant was convicted was $394,759.38.
On 29 May 2015, the appellant was sentenced to a total effective term of 4 years' immediate imprisonment with eligibility for parole. The sentence was backdated to 3 March 2015. A compensation order in the sum of $394,759.38 was made in favour of Phoenix.
On 1 June 2016, this court granted the appellant bail pending the determination of the appeal.
I would grant leave to appeal on the ground of appeal, allow the appeal, set aside the judgments of conviction and order a new trial. My reasons are as follows.

Overview of the State's case at trial

The State's case at trial was that, on multiple occasions over an eight‑month period in 2006, the appellant defrauded Phoenix, a small biotech health sciences company.
A director of Phoenix, Tom McArthur, had previously invented a chemical process which, when applied to any fruit or vegetable, produced a product that was thought to have a therapeutic effect on skin complaints. Between 2005 and 2007 Phoenix was actively seeking to develop its intellectual property in the process by entering into licensing packages with major pharmaceutical companies (Big Pharma).
In 2005, Mark Richardson, the managing director of Phoenix, attended a conference at which the appellant spoke on the commercialisation of intellectual property. The appellant represented himself as a person who could produce a licensing package for Phoenix more quickly and less expensively than Phoenix had contemplated. The appellant was appointed a non‑executive director of Phoenix with a view to his implementing that objective.
The appellant purported, on behalf of Phoenix, to engage Franklin Chen Associates of Washington DC and Silicon Valley Pharmaceutical Partners of Oakland (the Consultants) to assist in implementing Phoenix's objective.
As to each count in the indictment, the State alleged that the detriment suffered by Phoenix was an amount of money it had paid in settlement of a particular invoice which the appellant had presented to it for payment. The invoices purported to have been raised by the Consultants for work they had performed pursuant to their engagement by the appellant on behalf of Phoenix. The State asserted that, when he used the alleged deceit or fraudulent means, the appellant had an intention to defraud because he intended to cause economic loss to Phoenix.
The State's case, as ultimately left to the jury, was that the appellant had caused Phoenix to suffer the detriment pleaded in each count in the indictment by using one or more deceits or fraudulent means in connection with the issuing of the invoice and Phoenix's payment of that invoice.
The State's evidence at the trial was relevant primarily to the bona fides of the Consultants, the value of the work purportedly performed by them (if they existed) and the redirection of Phoenix's money, intended for the Consultants, to the appellant.

Overview of the appellant's case at trial

The appellant's case at trial was that he did not use deceit or fraudulent means, Phoenix did not suffer any financial disadvantage and, in any event, he did not have an intention to defraud.
According to the appellant, he was, in effect, a scapegoat for Phoenix and its managing director, Mr Richardson, and any financial disadvantage which Phoenix had suffered was attributable to the appellant's advice having been consistently ignored.
It was argued on behalf of the appellant that:
(a)The Consultants, who had raised the invoices, existed and the work particularised in the invoices had been done. In any event, the evidence adduced by the State could not satisfy the jury beyond reasonable doubt that the Consultants did not exist. Further, the evidence established that the work had been done, regardless of who had done it.
(b)The appellant had disclosed his relationship with the Consultants to Mr Richardson before the Consultants were engaged.
(c)Estimates the appellant had given to Phoenix about the time it would take for him to assist Phoenix in securing licensing arrangements with Big Pharma were based on what he had been told by Mr Richardson and others. However, Phoenix's true position (and other significant information) had not been disclosed to him. In particular, he was led to believe that Phoenix was far more advanced in the development of its intellectual property than was in fact the case.
(d)The appellant had suffered a forensic disadvantage as a result of a delay in the State commencing the prosecution.
(e)Mr Richardson's evidence, on which the State relied significantly, was not credible having regard to inconsistencies in his evidence compared to a version of events he had previously given and the terms of various documents.
(f)The evidence adduced by the State did not establish that the appellant had set up a system whereby he procured Phoenix to make payments in relation to the invoices in circumstances where he was the ultimate beneficiary of those payments.
(g)The jury should determine whether the appellant had lied during a video recorded interview with the police, and whether that affected his credibility, by having regard to:
(i)the time that had elapsed between the alleged commission of the offences and the conducting of the interview;
(ii)the time of the day when the interview took place;
(iii)the appellant's inexperience in dealing with the police; and
(iv)the fact that the questions put to the appellant by the police were focused on only one aspect of the State's case (namely, that money paid in satisfaction of the invoices appeared, ultimately, to have been deposited in the appellant's accounts).

The particulars of the counts in the indictment

Each of the 19 counts in the indictment alleged that the appellant, with intent to defraud, by deceit or fraudulent means caused a detriment to Phoenix. The detriment was a specified amount of money.
Each count was based on allegations that the appellant had claimed to have engaged the Consultants and had procured an invoice to be issued to and paid by Phoenix for work purportedly done by the Consultants.
However, the indictment did not particularise the deceit or fraudulent means allegedly used by the appellant. No particulars were sought by the appellant's legal representatives or provided by the State before the trial.
In his opening address, the prosecutor did not formally particularise the deceit or fraudulent means alleged by the State. He merely outlined, in general terms, the appellant's alleged acts and representations which constituted that element of each offence (ts 639 ‑ 647).
Prior to closing the State's case, the prosecutor gave the trial judge and defence counsel a draft document and, later, another document which set out details of the deceit or fraudulent means allegedly used by the appellant. The documents were relied on by the trial judge in directing the jury.
The State's particulars, as set out in the documents given by the prosecutor to his Honour and defence counsel, were as follows:
(a)first particular: the appellant, well knowing that a level of science not possessed by Phoenix was necessary to achieve an effective licensing package, represented to Phoenix that he could, with the employment of consultants, produce such a package within varying, but short, time frames;
(b)second particular: the appellant continued to reassure Phoenix that it was on track to have a licensing package when he well knew that an effective licensing package could not be produced and that the work the Consultants were producing and being paid for was not suitable for incorporation into such a package;
(c)third particular: the work claimed for in respect of each of the invoices had not been done;
(d)fourth particular: the appellant caused Phoenix to make the payments particularised in each of the counts in the indictment for material which could never have fulfilled the purpose for which he had been granted access to budgeted money, namely the production of a licensing package;
(e)fifth particular: the appellant presented the invoices to Phoenix and sought payment of them well knowing that the payees did not exist, as he had represented them to be, because they did not exist, were not appropriately qualified or did not actually do the work; and
(f)sixth particular: the appellant set up a system whereby he procured payment of the invoices by Phoenix to the Consultants, in circumstances where he was ultimately the beneficiary of the money, by knowingly and wilfully disguising the true nature of his relationship with the Consultants.

The ground of appeal

The ground of appeal alleges that a miscarriage of justice was occasioned by the trial judge's failure to direct the jury that, in relation to each count, they must agree unanimously as to the particular deceit or fraudulent means that was used by the appellant and that caused the detriment.
On 29 November 2015, Mazza JA ordered that the appellant's application for leave to appeal on that ground be referred to the hearing of the appeal.

The appellant's application for leave to adduce additional evidence and to add a ground of appeal

By an application in the appeal filed 18 April 2016, the appellant applied for leave to adduce additional evidence in the appeal and to add a ground of appeal.
The proposed additional ground alleges, in effect, that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence adduced at trial and to the additional evidence sought to be adduced in the appeal, the verdicts of guilty are unreasonable or cannot be supported.
On 4 May 2016, Mazza JA ordered that the appellant's application be referred to the hearing of the appeal.

The appellant's orders wanted

The appellant's orders wanted in relation to the ground of appeal and the proposed additional ground of appeal are that leave to appeal be granted, the appeal be allowed, the judgments of conviction be set aside and a new trial be ordered.

The trial judge's directions

The trial judge identified the particular acts and omissions relied on by the State as the deceits or fraudulent means the appellant had allegedly used to cause financial detriment to Phoenix, as follows:
The first is that Dr Ardrey [that is, the appellant], well knowing that a level of science not possessed by the company [that is, Phoenix] was necessary to achieve an effective licensing package, represented to the company that he could, with the employment of consultants, produce such a package within varying but short time frames.
…
The second is that Dr Ardrey, throughout his employment by the company, continued to reassure the company that they were on track to have a licensing package when he well knew that an effective licensing package could not be produced and that the work his consultants were producing and being paid for was not suitable for incorporation into such a package.
…
The third is that the work claimed for in respect of each of the invoices had not been done. That's simple enough. The work had simply not been done. And you'll remember that both Mr O'Sullivan [that is, the prosecutor] and Mr Massey [that is, defence counsel] went through that in quite some detail. The State's case is that the work had not been done.
The fourth is that Dr Ardrey … having achieved the budget allocations of $165,000 and later $500,000 from the company, proceeded to cause the company to make the payments particularised in each one of the separate counts on the indictment for material which could never have fulfilled the process for which he had been granted access to the budgeted money, namely the production of a licensing package, thereby deceiving the company into acting to its detriment. The State says that what was produced was unsuitable for incorporation into the promised licensing package.
…
The fifth thing is that Dr Ardrey represented the invoices to the company; that's Phoenix Eagle, and sought payment of them well knowing that the payees; that is, Franklin Chen and Associates or Franklin Chen, Silicon Valley Pharmaceuticals and so forth - so the payees did not exist as he had represented them to be because in relation to Silicon Valley that the consultants did not exist, or were not appropriately qualified, or did not actually do the work, and in relation to the Franklin Chen invoices, leaving aside Franklin Chen, that the consultants did not exist; that is, the consultancy Franklin Chen and Associates didn't exist, or any other person supposed to be associated with it didn't exist, although - and this is a matter for you, it's a matter of comments - it seems that the State doesn't dispute that there was a person called Franklin Chen. But the State disputes that Franklin Chen was appropriately qualified or that, in fact, Franklin Chen or Franklin Chen and Associates had done the work. So I'll say that again.
…
The sixth is that Dr Ardrey set up a system whereby he procured payment of the invoices by Phoenix Eagle to the consultants in circumstances where he was ultimately the beneficiary of the moneys, namely knowingly and wilfully disguising the true nature of his relationship with the consultants; and in the case of Franklin Chen by failing to disclose his proper qualifications and the family relationship, and in the case of Silicon Valley the fact that the moneys were being paid to his parents-in-law and not to Silicon Valley. For short summary you could refer to that generally as being the system of payment that the State says that Dr Ardrey set up (ts 3183 ‑ 3185).
The directions that his Honour gave to the jury, as to the deceits or fraudulent means particularised by the State, can be summarised as follows:
(a)The State did not need to prove all of the particularised deceits or fraudulent means in order to prove that the appellant was guilty in relation to each of the counts. His Honour told the jury that if 'you' were satisfied beyond reasonable doubt of one of the particularised deceits or fraudulent means then that would be sufficient, provided that the other elements of the offence in question were also proved beyond reasonable doubt (ts 3185 ‑ 3186) (emphasis added).
(b)His Honour reminded the jury, when summarising 'globally' the State's case, of a direction he had given them earlier in his summing up (ts 3185 ‑ 3186). He reiterated that 'the State relies upon each one of the separate deceits but is not required to prove all of them to satisfy you beyond reasonable doubt that [the appellant] is guilty on any one of the particular counts' (ts 3191) (emphasis added).
(c)His Honour, in the course of dealing separately with each count in the indictment, again summarised the particular deceits or fraudulent means relied on by the State (ts 3273 ‑ 3276). As to the third and fourth particulars, he gave the jury a detailed summary of some of the more significant evidence that had been adduced from the State's principal witness, Mr Richardson (ts 3276 ‑ 3313).
(d)His Honour, after referring to the evidence specifically relevant to the third and fourth particulars, again summarised all of the deceits or fraudulent means relied on by the State and repeated his earlier directions that '[t]he State [does not] need to prove every one of those in relation to each count' and that '[i]f you were satisfied beyond reasonable doubt that any one of those applied to a count, that would be enough to prove the fourth element [of the offence in question] and only the fourth element' (ts 3317 ‑ 3318) (emphasis added).
(e)His Honour then dealt specifically with the fifth and sixth particulars (ts 3318 ‑ 3320).

The trial judge directed the jury that it was necessary for them to arrive at unanimous verdicts (ts 625 ‑ 626, 3162, 3326). However, those directions related only to their verdicts; that is, whether the appellant was guilty or not guilty of each count in the indictment.
The directions about unanimous verdicts were given at the commencement of the trial, before the State had opened its case and before any evidence had been adduced, and at the end of his Honour's summing up, well after he had dealt with the particulars of deceit or fraudulent means.
On Friday, 27 February 2015, at 12.35 pm the jury retired to consider their verdicts. The trial judge adjourned the court and the jury ceased their deliberations at 3.02 pm on that day.
When the trial resumed on Tuesday, 3 March 2015, at 9.37 am (after a long weekend), the jury sent his Honour a note containing some questions about the six particulars of deceit or fraudulent means. Those questions sought clarification of the particulars, including clarification about whether they were relevant to the element of intent to defraud or the element of deceit or fraudulent means (ts 3334).
The trial judge, in answering the jury's questions, redirected them about the six particulars of deceit or fraudulent means (ts 3337 ‑ 3341, 3344 ‑ 3345).
His Honour said the State's case was that the six particulars of deceit or fraudulent means do not 'all necessarily relate to every single count' (ts 3337). His Honour instructed the jury that it was 'a matter for you as to whether they relate to a count or not' (ts 3337). However, his Honour then went on to inform the jury, for the first time and by way of comment, of his view on that issue (ts 3337 ‑ 3338).
The trial judge said towards the conclusion of his redirection:
Now, again I make it clear to you, ladies and gentlemen, that you need to be satisfied of each one of the elements beyond reasonable doubt. It would not be enough for example if you were satisfied that there was deceit in relation to count 1 but were not satisfied of each of the other elements beyond reasonable doubt. They must exist.
However, when it comes to the fourth point, deceit or fraudulent means, you do not have to be satisfied that each and every one of the six points exists to be satisfied of that element.
So if you were satisfied that the first of them existed in relation to count 1, that is that anecdotal evidence was enough, that point, if you were satisfied of that beyond reasonable doubt, you wouldn't need to be satisfied of all six of those in relation to count 1, but you would still need to be satisfied of the other elements, one, two, three and four, all four of those elements beyond reasonable doubt.
That would only satisfy you beyond reasonable doubt of the fourth one if A [sic] existed. But you don't need to be satisfied that all six existed on each count to be satisfied with that element beyond reasonable doubt. One or more will be sufficient (ts 3344 ‑ 3345). (emphasis added)

The ground of appeal: relevant legal principles

In Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434, the appellants, Mitchell and Fermanis, were tried with a third man, O'Connor, on six counts of fraud, contrary to s 409(1)(c) of the Code. Mitchell and Fermanis were convicted on all counts. O'Connor was acquitted on all counts.
Each of the charges alleged that Fermanis, Mitchell and O'Connor, with intent to defraud, by deceit or fraudulent means gained a benefit, namely an amount of money from a specified investor or complainant for a company, Pridecrest Pty Ltd.
The counts in the indictment did not identify any particular form of deceit or fraudulent means. However, at the trial, the State gave particulars.
The particulars identified a number of different deceits or fraudulent means, proof of any one of which would suffice to satisfy that essential element of the offences charged. Accordingly, there were a number of routes by which the jury could be satisfied that the accused had engaged in deceit or fraudulent means.
Steytler P (Roberts‑Smith & McLure JJA agreeing) said:
In my opinion, these routes were not merely evidentiary. Rather, the fact to be found, namely the particular form of deceit or fraudulent means used, is an essential ingredient of the offence and the jury was required to be unanimous in finding that ingredient proved. Of course, that does not mean that they had to be unanimous in their acceptance of evidence which led to that finding. So, for example, each accused could not properly be convicted in circumstances in which the deceit or fraudulent means was found by six of the jurors to be representation A, and by the other six to be representation B. They had to be unanimous in finding either or both of representations A and B proved. However, each might rely upon different evidence in finding that representation proved [69].
His Honour noted that his conclusion was 'supported by the preponderance of authority' [71]. His Honour referred, in particular, to Infirri v The Queen (1981) 5 A Crim R 132; Brown v The Queen (1984) 79 Cr App R 115; More v The Queen (1988) 86 Cr App R 234; and R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299.
Steytler P concluded that Fermanis was 'a case in which the trial judge was required to direct the jury that [in the case of each charge] each of the jurors had to base his or her decision to convict on the same route or routes' [73]. His Honour said that, because that direction was not given, it followed 'inevitably that the convictions [were] unsafe and should be set aside' [73].
In Infirri, the appellant was convicted of attempting to obtain $66,227 from a company, with intent to defraud, by falsely pretending to an agent of the company that a quantity of jewellery wholly owned by him and valued at $66,227 had been stolen.
The false pretences relied on by the Crown were misrepresentations to the effect that, first, the appellant owned a quantity of jewellery valued at $66,227 and, secondly, that the jewellery had been stolen.
Burt CJ (Wallace & Smith JJ agreeing) said:
The cases say that it is enough to sustain a conviction [by] the making of one false pretence and for the purposes of the completed offence reliance upon it be 'proved' and that, I think, in the case of a trial by jury can only mean proved to the satisfaction of the jury. If the jury at the end of the day do not join in finding a particular false pretence to have been made then the making of that false pretence, as it seems to me, has not been 'proved'. The making of the false pretence is an element of the offence charged and proof of that element has not been achieved unless all members of the jury or, in the case of a majority verdict, ten of the jury join in saying so. It is different, of course, when the fact to be proved is not an element of the offence charged (134).
In Brown, the appellant was convicted, after trial, of four counts of fraudulently inducing the investment of money and one count of attempting to do so. Each count contained particulars of a number of different statements which the prosecution relied on as constituting the inducement. The trial judge directed the jury that it was immaterial if some of the jurors were satisfied that one of the statements had been made out and the remaining jurors were not satisfied about that statement but were satisfied that another statement had been made out, provided all of the jurors were satisfied that the appellant had made a dishonest inducement which operated upon the mind of the investor to whom it was made and caused him or her to act in the way he or she did. The Court of Appeal (Criminal Division) held that the trial judge had misdirected the jury. Eveleigh and Robert Goff LJJ and Hollings J said 'it is a fundamental principle that in arriving at their verdict the jury must be agreed that every single ingredient necessary to constitute the offence has been established' and that in Brown '[t]he false statement [was] an essential ingredient' (117).
In More, Neill LJ, Jupp and Hodgson JJ expanded upon the principles enunciated in Brown, as follows:
It seems to us … that it will only be necessary to give a direction on the lines set out in Brown in the comparatively rare cases where it emerges at some stage in the course of the trial, or as the result of a question asked by the jury, that there is a risk of a disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved. In Brown itself the direction became necessary because the jury's question focussed attention on the fact that some members might be satisfied as to one of the statements alleged to have been made, whereas other members might not have been satisfied as to that statement but satisfied as to one of the other statements alleged. The Court of Appeal accordingly laid down that in such a case the jury should be directed as to the necessity of unanimity. Such a direction will also be necessary where there is a discernible risk in, for example, a case involving obtaining property by deception by a number of representations, that the jury might fail to be unanimous as to the making, falsity and efficacy of at least one of the representations (244).
On appeal in More, the House of Lords found it unnecessary to consider the correctness of the Court of Appeal's decision on that point (251 ‑ 252) (Lord Ackner; Lord Keith of Kinkel, Lord Elwyn‑Jones, Lord Brandon of Oakbrook & Lord Templeman agreeing).
In Walsh, the appellant applied for leave to appeal against his conviction, after trial, of one count of conspiracy to defraud and three counts of perverting the course of public justice. The appellant argued, relevantly for present purposes, that 'each count alleged more than one discrete act by the [appellant], that the jury were not directed sufficiently on the need for unanimity, and so the trial miscarried' [39]. The Court of Appeal of Victoria dismissed the appeal.
Phillips and Buchanan JJA (Ormiston JA agreeing) made these observations about the question of unanimity, in the sense of the need for the jurors to agree among themselves as to the route by which a verdict of guilty is reached as distinct from whether the verdict is ultimately delivered by 12 jurors or by a majority (when such is permitted):
The question of unanimity can arise when only one offence is charged and only one offence is proved but the jury is presented through the evidence led with more than one route by which to determine guilt. The question which has then arisen, in a number of cases now, is whether the jury must be directed to be unanimous, not only in the verdict, but also in the route by which that verdict is reached [43].
After reviewing numerous cases (including Brown and More), Phillips and Buchanan JJA said:
To sum up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on 'unanimity' about one or other or more of those bases, at least if they do not 'involve materially different issues or consequences' … The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend 'upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence'. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud [57].
See also Pratten v The Queen [2014] NSWCCA 117 [36] ‑ [51] (Meagher JA, Fullerton & Hamill JJ).
In R v Lake [2007] QCA 209; (2007) 174 A Crim R 491, the appellants were convicted of conspiracy to import a commercial quantity of cocaine, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The Court of Appeal of Queensland dismissed the appeals. Holmes JA (McMurdo P and Jerrard JA agreeing) noted that the need for jury unanimity has been discussed in many cases dealing with offences other than conspiracy and that a distinction has been drawn between situations in which unanimity is required and others in which it is not essential [64]. Her Honour said she was convinced that the status of the commission of an overt act, as an ingredient of the offence in question and as an essential element which the prosecution had to prove, required unanimity [67]. However, her Honour concluded that, 'in the peculiar circumstances of this case, in which there was no dispute as to the happening of any overt act relied upon by the prosecution', the failure of the trial judge to direct the jury in relation to unanimity was without consequence [68]. Her Honour added that there was 'no basis on which the jury might seriously be thought to have disagreed as to any of those acts' [68]. Accordingly, there was no reason to suppose that any miscarriage of justice was occasioned by the absence of the direction.
In Loone v The State of Tasmania [2008] TASSC 7; (2008) 17 Tas R 378, the appellants were jointly charged with 12 counts of dishonestly acquiring a financial advantage. One appellant (PL) was convicted of three counts and the other (ML) was found guilty of two counts. Both appealed on the basis that the convictions were unsafe or unsatisfactory. The Court of Criminal Appeal of Tasmania allowed the appeals. A majority of the court ordered a retrial.
Each count pleaded that PL and ML 'by means of a deception, namely by dishonestly invoicing Patrick's Tasmania Ltd for ….' and in each case there followed a few words describing the work done and materials supplied or fuel delivered, and the value of the financial advantage alleged to have been acquired.
Slicer J said:
The jury was required to consider a number of discrete acts which might have involved instructions given by the first appellant to the second, or by either to another officer or employee of the company, the request, if any, to a supplier or provider of services separately in respect of each count and to agree, not on a general verdict based on general conduct, but unanimity of conclusion of the particular event of deception (R v Brown (1984) 79 Cr App R 115; R v More [1987] 1 WLR 1578; Infirri v The Queen (1981) 5 A Crim R 132) [72].
The trial judge in Loone failed clearly to identify, in her summing up, the words or conduct alleged to have been the deception. The jury could be satisfied of the acquisition of a financial advantage by PL or ML, but was still required to find, in relation to each count, that the advantage had been acquired as a result of an identified act of deception. The absence of a direction as to the requirement for the jury to be unanimous on the particular act of deception made the convictions unsafe and unsatisfactory.
In R v Dale [2012] QCA 303, the appellant was convicted, after trial, of seven fraud‑based offences. He appealed against conviction on eight grounds. Ground 7 alleged that the trial judge erred in failing to direct the jury that, for each count, where more than one particular of dishonesty was given, in order for them to be satisfied of dishonesty, it was necessary that they be unanimous as to the particular, or particulars, of which they were satisfied.
The trial judge in Dale outlined a process for the jury to follow in the course of their deliberations. First, the jury should decide what was said by the appellant to each of the investors or complainants. Secondly, once the jury had determined that matter, the jurors should ask themselves whether the particular investor or complainant they were considering was induced to pay the moneys because of what the appellant had said to him or her. Thirdly, the jury should assess whether the prosecution had proved that what the appellant did was dishonest, and that should be done by applying the standards of ordinary, honest people. Fourthly, the jury should determine whether the appellant realised that what he had done was indeed dishonest by those standards [92].
The Court of Appeal of Queensland held that a direction of the kind required in Fermanis was unnecessary. Gotterson JA (Margaret McMurdo P & Mullins J agreeing) gave two reasons for that conclusion.
First, the trial judge's detailed directions 'substantially directed the jury that unanimity in this respect was required'. Gotterson JA elaborated:
Whilst he did not say so in terms, the requirement for unanimity underpinned the directions he did give them as to how they were to go about their task. A fair reading of the directions indicates that when he addressed the jury members as to what 'you' should do, he was referring to them acting collectively. For example, his suggestion that 'you decide firstly what was said by the defendant to each of the investors' would have been clearly understood by the jury to mean that they were to make that decision collectively as a jury decision. It is inconceivable that the jury would have understood the learned judge to be referring to decisions made individually by each jury member without discussion with the others [94].
The trial judge's meaning was clear: that they together needed to be satisfied that one particular had been satisfied to the requisite standard [95].
Secondly, the process which the trial judge outlined for the jury to follow, in the course of their deliberations, obviated the kind of risk alluded to in More in a case involving obtaining property by deception by a number of misrepresentations; namely, that the jury might convict yet had failed to be unanimous as to the making, falsity and efficacy of at least one of the representations [95].
Gotterson JA distinguished Fermanis on the basis that there were 'highly significant differences' in that case arising from the number of accused and the nature of the allegations as alternatives [96].
In Magnus v The Queen [2013] VSCA 163; (2013) 41 VR 612, the appellant was convicted, after trial, of 53 charges of obtaining financial advantage by deception arising from his conduct in soliciting investments for a private betting fund. Each charge contained, in the indictment, between three and six particulars, being different false representations which the appellant was alleged to have made to the various investors or complainants. On appeal, the appellant alleged that the trial judge had erred in failing to direct the jury that, in relation to each count, the jury had to be unanimous as to the particular statement that was materially misleading. The Court of Appeal of Victoria dismissed the appeal.
Buchanan, Ashley and Redlich JJA held that Magnus was not a case in which a direction of the kind required in Fermanis was necessary. The evidence of nine of the investors or complainants meant that the Crown case rose or fell on one representation, while the evidence of the two remaining investors or complainants meant that the Crown case rose or fell on another representation [62]. There was no prospect of the jury convicting the appellant on any charge except if it was unanimous in finding that a particular representation had been made and had been operative with respect to the particular transfer of funds [63]. The trial judge's summing up addressed the issue of operative representation in the manner in which that issue had crystallised at the trial [64].

The ground of appeal: the State's submissions

Counsel for the State accepted that, although the trial judge directed the jury on the need for a unanimous verdict on each count, his Honour did not 'specifically' direct the jury that it was necessary for them to agree unanimously as to the particular act or representation found to constitute deceit or fraudulent means.
Counsel accepted that his Honour directed the jury, appropriately, that in order to find the element of 'by deceit or fraudulent means' proved in relation to a particular count, it was not necessary for the State to prove that all of the alleged acts or representations had been made.
However, counsel conceded, correctly, that it was necessary for the jury to be unanimously agreed that the same acts or representations had been proved beyond reasonable doubt in order to establish the element of 'by deceit or fraudulent means'.
It was submitted that the trial judge's summing up did not indicate that the jury could differ as to the act or representation (if, indeed, they relied on more than one). It was also submitted that his Honour's summing up 'was such that it was made sufficiently clear to the jury that a unanimous conclusion of guilt, on a shared basis, was required'.
Counsel for the State referred to the following passages in his Honour's summing up:
(a)in instructing the jury about whether the appellant had an intention to defraud and whether he used deceit or fraudulent means, his Honour said, 'in other words, when you, the jury, look at the facts of the case that you're satisfied beyond reasonable doubt that deceit or fraudulent means were employed' (ts 3171) (emphasis added); and
(b)in instructing the jury about whether the alleged deceit or fraudulent means caused the alleged detriment to Phoenix, his Honour said, 'when you, the jury, look at the facts of the case in order to find him guilty of this element you must be satisfied beyond reasonable doubt that the deceit or fraudulent means caused the detriment' (ts 3171) (emphasis added).
See also the passages from the summing up which I have reproduced at [31], [37] and [38] above.
According to counsel, the jury would have 'clearly understood' from those and other passages in the summing up that they were 'to make their decisions collectively as a jury decision'. Counsel emphasised the word 'you' in relevant passages in the summing up and relied on the observations of Gotterson JA in Dale [94] ‑ [95].
Counsel for the State noted that the trial judge directed the jury on a number of occasions that, in order to find the element of 'by deceit or fraudulent means' proven, it was not necessary for the State to satisfy them that all of the alleged acts had occurred or the alleged representations had been made. For example, during the summing up his Honour instructed the jury:
However, the State does not need to prove each and every one of these elements of deceit and fraudulent means to prove that Dr Ardrey is guilty in relation to each one of the counts. So for example, if you were satisfied that - taking the first one, if you were satisfied on count 1 that Dr Ardrey did, in fact, know that the level of science - that the company did not have the required level of science but nonetheless represented to the company that he could, with the employment of consultants, produce such a package within varying but short timeframes, if you were satisfied of that one but you weren't satisfied of any of the others, you would still - and when I say, 'Satisfied', satisfied beyond reasonable doubt - you would still find him guilty of that if all the other elements had been proved beyond reasonable doubt (ts 3185 ‑ 3186). (emphasis added)
It was submitted that '[his Honour's] meaning in that passage was clear'. The jury was addressed by the collective pronoun 'you' and, accordingly, instructed in effect that:
(a)it was sufficient if 'they came to a united position as to one particular'; and
(b)the jury, together, not individually, needed 'to be satisfied that one particular had been established to the requisite standard'.
According to counsel, nothing in the summing up expressly or impliedly authorised the jury 'to reach a unanimous conclusion on guilt without any common basis about the particular found proven'.
The fifth particular alleged that the appellant presented the invoices to Phoenix and sought payment of them well knowing that the payees did not exist, as he had represented them to be, because they did not exist, were not appropriately qualified or did not actually do the work.
Counsel for the State argued that the deceit or fraudulent means identified by the State in the fifth particular was that the Consultants, as the appellant represented them to be, were not 'legitimate'. Counsel noted that there was evidence upon which the jury could find that the Consultants did not exist and that, in fact, the work had been done by the appellant personally (ts 3319). According to counsel, the evidence in relation to the fifth particular did not provide numerous or alternative routes to conviction. Rather, the fifth particular was directed towards establishing that the appellant induced Phoenix to believe that it was paying 'legitimate consultants for legitimate work' when, in fact, it was not. Accordingly, the fifth particular was not made up of a number of 'essential ingredients' of the offences alleged against the appellant, but was 'centred on the appellant's representation that the [Consultants] were legitimate'.

The ground of appeal: its merits

The State relied on a number of different deceits or fraudulent means. The trial judge directed the jury, in accordance with the State's case, that proof beyond reasonable doubt of any one of the different deceits or fraudulent means in relation to a count would be sufficient to prove the element of the offence that the appellant had engaged in deceit or fraudulent means.
In the circumstances, there were a number of routes by which the jury could be satisfied that the appellant had engaged in deceit or fraudulent means. These routes were not merely evidentiary. The fact to be found in relation to each count, namely the particular form or forms of deceit or fraudulent means used by the appellant, was an essential ingredient of the offence. The jury was required to be unanimous in finding that the ingredient in question had been proved beyond reasonable doubt. Although the jury had to be unanimous in finding that at least one (and the same one) of the various deceits or fraudulent means, as particularised in his Honour's summing up, had been proved, each juror might rely on different evidence in finding that such deceit or fraudulent means had been proved.
The trial judge did not expressly direct the jury that, when considering in relation to each count whether the appellant had used deceit or fraudulent means, the jury had to be unanimously agreed that the appellant had used at least one (and the same one) of the various deceits or fraudulent means that had been particularised.
Although his Honour did give directions to the jury about the need for them to arrive at unanimous verdicts, those directions related only to their verdicts; that is, whether the appellant was guilty or not guilty of each count.
In my opinion, the directions which the trial judge actually gave to the jury did not, either substantially or by necessary implication, instruct the jury that in relation to each count unanimity about at least one (and the same one) of the particular deceits or fraudulent means was required. There was a discernible risk that the jury might fail unanimously to agree that the appellant used at least one (and the same one) of the particular deceits or fraudulent means, in relation to each count, as alleged by the State in its particulars. My reasons for those opinions are as follows.
First, on a fair reading of his Honour's summing up as a whole, it cannot safely be concluded that the directions which his Honour actually gave to the jury would have been understood by them as requiring their unanimous agreement, in relation to each count, about at least one (and the same one) of the particular deceits or fraudulent means. On a fair reading of the summing up as a whole, there was a real risk that the jury may have understood that if they were unanimously of the view, in relation to each count, that at least one of the particular deceits or fraudulent means had been proved beyond reasonable doubt, it was open to them to convict the appellant even if they were not unanimously agreed about the same particular.
Secondly, the fifth particular of deceit and fraudulent means, and the trial judge's directions on it, underscored the necessity for a clear and unambiguous instruction from his Honour to the effect that the jury must agree unanimously, in relation to each count, about at least one (and the same one) of the particular deceits or fraudulent means.
The fifth particular alleged that the appellant presented the invoices to Phoenix and sought payment of them well knowing that the payees did not exist, as he had represented them to be, because they did not exist, were not appropriately qualified or did not actually do the work.
After the jury retired to consider their verdicts, they sent a note to his Honour seeking clarification. The note read:
Please assist us with clarifying if the six points mentioned as in the State's case is for satisfying point 3, 'intent to defraud', or point 4, being 'deceit or any fraudulent means' (ts 3336).
The trial judge discussed the jury's note with the prosecutor and defence counsel and then directed the jury, relevantly, as follows:
Then we come to the fifth of the points which relates to the consultants themselves. And that is the case, you'll remember, that the State says that Dr Ardrey presented invoices to the company and sought payment of them well knowing the payees did not exist as he had represented them to be, because in the case of Silicon Valley the consultants did not exist, or they were not appropriately qualified, or they did not actually do the work.
Now, the State doesn't need to prove every one of those. For example, if you were satisfied that the consultants didn't exist that would be enough. If you're satisfied beyond reasonable doubt that would be enough to satisfy you of this aspect of the deceit or fraudulent means. But the State says that if you weren't satisfied that they didn't exist, you could still be satisfied that they were not appropriately qualified or that they hadn't done the work.
In relation to the Franklin Chen invoices, the State says that consultants did not exist, leaving aside Franklin Chen, because there was mention of another female and so the State - it's a matter for you, but the State seem to be conceding the fact that Chen existed, but they say that the other consultants did not exist.
The State in this regard relies upon that Franklin Chen was not appropriately qualified or that they did not actually - they, being the consultants, didn't actually do the work. So that's the fifth point (ts 3339 ‑ 3340). (emphasis added)
It is apparent from this passage that in relation to the fifth particular the State relied on the following:
(a)As to invoices issued by the consultants connected with Franklin Chen Associates, the consultants (other than Franklin Chen) did not exist, or Franklin Chen was not appropriately qualified, or Franklin Chen did not actually do the work.
(b)As to invoices issued by the consultants referred to as Silicon Valley Pharmaceutical Partners, the consultants did not exist, or they were not appropriately qualified, or they did not actually do the work.
Accordingly, particular 5 comprised a number of different alternative deceits or fraudulent means. The real risk that the jury may have understood that if they were unanimously of the view, in relation to each count, that at least one of the particular deceits or fraudulent means had been proven beyond reasonable doubt, it was open to them to convict the appellant even if they were not unanimously agreed about the same particular, was especially acute in the context of particular 5.
Thirdly, there was ambiguity in his Honour's direction to the jury on 3 March 2015 that 'you [do not] need to be satisfied that all six [particulars] existed on each count to be satisfied with that element [namely, that the appellant used deceit or fraudulent means] beyond reasonable doubt … [o]ne or more will be sufficient' (ts 3345). There is a distinction between directing the jury that 'you must all be satisfied beyond reasonable doubt of one or more of the particulars', on the one hand, and directing the jury that 'you must be satisfied beyond reasonable doubt of one or more of the particulars', on the other. The second formulation leaves open the possibility that different jurors may be satisfied beyond reasonable doubt about different particulars. His Honour's direction did not clearly fall within the first formulation.
His Honour's use of the word 'you', in the passages relied on by counsel for the State and in the context of the summing up as a whole, was attended by ambiguity. There was a real risk that the word 'you' would not have been understood by the jury as referring to the jury acting collectively and unanimously, in relation to each count, about at least one (and the same one) of the particular deceits or fraudulent means.
Fourthly, unlike in Dale, the trial judge did not outline a process for the jury to follow, in the course of their deliberations on the factual issues, which obviated the kind of risk alluded to in Fermanis.
As I have mentioned, in Dale Gotterson JA distinguished Fermanis on the basis that there were 'highly significant differences' in Fermanis arising from the number of accused and the nature of the allegations as alternatives [96]. In the present case, there was, of course, only one accused, but the appellant's trial was lengthy and reasonably complicated, there were 19 counts, there were six particulars of the deceits or fraudulent means relied on by the State and, within the fifth particular, there were three sub‑alternatives. There were some reasonably subtle variations as between some of the particulars. See, for example, the second particular read with the second sub‑alternative of the fifth particular and the third particular read with the third sub‑alternative of the fifth particular. Fermanis is not relevantly distinguishable from the present case.
Fifthly, against the background of the numerous possibilities in relation to the application of the six particulars (and the three sub‑alternatives within the fifth particular), his Honour directed the jury that on the State's case those possibilities did not 'necessarily relate to every single count' (ts 3337) and that it was a matter for the jury 'as to whether they relate to a count or not' (ts 3337). So, the prosecutor was not required to assign specific particulars to each count in the indictment. The jury was left to work it out for themselves. This was unsatisfactory in the context of a lengthy and reasonably complex trial with 19 counts and numerous possibilities in relation to the deceits or fraudulent means relied on by the State.
Sixthly, unlike in Magnus, the State's case did not rise or fall on one representation.
It is, of course, relevant that the appellant's experienced defence counsel did not seek any additional directions or redirections from the trial judge in relation to the point raised by the ground of appeal. However, despite the point being of significance, it was overlooked by the prosecutor as well as by his Honour and defence counsel. It was not suggested by counsel for the State (and it could not reasonably have been suggested) that there was any forensic advantage to the appellant's case in defence counsel not seeking an additional direction or a redirection from his Honour on the point.
In the circumstances, I am satisfied that a miscarriage of justice was occasioned by his Honour's failure to direct the jury that, in relation to each count, they must agree unanimously as to the particular deceit or fraudulent means that was used by the appellant and that caused the detriment.
The ground of appeal has been made out.

The appellant's application for leave to adduce additional evidence: relevant legal principles

The appellant's application for leave to adduce additional evidence in the appeal is supported by three affidavits, each sworn by him on 14 April 2016.
The proposed additional evidence is substantial. The additional evidence includes numerous documents filed or discovered in pending civil proceedings in the General Division of the Supreme Court, namely CIV 3072 of 2011 between Phoenix as plaintiff and the appellant as defendant. The evidence also includes numerous business records and publicly available documents. The pending proceedings relate to the detriment which the appellant caused to Phoenix, as alleged in the criminal proceedings the subject of this appeal.
Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Criminal Appeals Act. Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence.
In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 ‑ 302 (Toohey & Gaudron JJ).

In the present case, some of the proposed additional evidence is 'new' evidence and some of it is 'fresh' evidence.

The proposed additional ground of appeal: relevant legal principles

By s 30(3)(a) of the Criminal Appeals Act, in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
See also Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439, 450 (Gaudron, McHugh & Gummow JJ).
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court's task is not to consider, as a question of law, whether there was sufficient evidence to sustain a conviction. See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ); M (492 ‑ 493); SKA [20].
Rather, the appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the evidence (in particular, the competing evidence). See SKA [22], [24].
However, an appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].

The appellant's application for leave to adduce additional evidence and add the proposed additional ground of appeal: the appellant's submissions

Prior to the hearing of the appeal, the appellant filed written submissions in support of his application for leave to adduce additional evidence and add the proposed additional ground of appeal. The submissions were prolix and difficult to understand.
On 13 May 2016, at the conclusion of the hearing, this court ordered the appellant to file and serve written submissions which stated concisely in numbered paragraphs:
(a)each piece of additional evidence sought to be relied on by the appellant with a cross reference to the place in the yellow appeal book where the piece of additional evidence may be found;
(b)whether the appellant contended that the piece of additional evidence is inconsistent with evidence given at the trial and, if so, a cross reference to the transcript page and line numbers where the evidence at trial was given; and
(c)the relevance and significance of the piece of additional evidence, and any inconsistency, to the counts in the indictment and the issues at the trial.
On 1 June 2016, the appellant filed a document which purported to comply with that order. Regrettably, the document was not a material improvement on the written submissions filed prior to the hearing.
The appellant made this submission as to the additional evidence sought to be relied on by him:
[The proposed additional ground of appeal] fills both gaps in Respondent's Answer, by correcting the facts, and asserting that the jury verdicts on Counts 2 ‑ 19 were unreasonable and unsupported, having regard to additional (new/fresh) evidence and created a miscarriage of justice. 'All of the evidence' includes evidence at trial and additional evidence, for example Affidavits submitted by [Phoenix], after Verdicts, in new avenues of litigation against Appellant; documents appended to Affidavits were not seen at trial, they contradict sworn testimony by State witnesses. Appellant submits that Jury, acting reasonably, would have acquitted if they were adduced at trial. Voluminous business records and government documents, not disclosed to investigators, submitted after Verdicts, contradict key aspects of State's [case].
The appellant also submitted that a document he annexed to his written submissions showed 'mathematically, a significant departure from what the key State witness Richardson said under oath about material financial transactions, payments to himself, and indebtedness, which also contradicts other filings before other Courts'.
I will not reproduce or set out in summary form the appellant's other submissions. In the circumstances, it is sufficient to note that I have read and endeavoured to understand, in the context of the trial record and the proposed additional evidence, the points which the appellant has sought to make.

The appellant's application for leave to adduce additional evidence and add the proposed additional ground of appeal: their merits

I have set out earlier in these reasons an overview of the State's case at trial and the appellant's case at trial.
The essence of the State's case, and the evidence adduced in support of it, was that from February 2006 the appellant established bogus consultants and he created false invoices and arranged for them to be paid by Phoenix. The amount paid to the bogus consultants, or a very substantial proportion of it, was remitted subsequently to the appellant's personal accounts.
Further, the State's case, and the evidence adduced in support of it, was to the effect that what was produced, purportedly by or on behalf of the bogus consultants, was unsuitable for the production of a licensing package, being the outcome which Phoenix had engaged the appellant to secure. The State relied on evidence from Dr Mark Woolley, an expert in the development of and the obtaining of regulatory approval for drugs in the pharmaceutical industry. He gave evidence to the effect that the work the Consultants were apparently producing, and for which they were being paid by Phoenix, was not suitable for incorporation into a licensing package.
The essence of the appellant's case, and the evidence adduced in support of it, was that everything he did pursuant to his retainer by Phoenix was legitimate and in the company's best interests. The Consultants were legitimate and appropriately qualified. The appellant gave evidence to the effect that Mr Richardson had directed him to engage the Consultants. The appellant had retained them successfully in connection with work he had performed previously for Regenera Ltd (Regenera).
The appellant said in evidence that he had disclosed to Phoenix all relevant information about the Consultants and other people, including:
(a)that Franklin Chen was his brother‑in‑law;
(b)that Franklin Chen had assisted him in the successful venture with Regenera;
(c)his relationship with Silicon Valley; and
(d)information about the people he was allegedly in partnership with, including Graham Toner (who the State asserted did not exist) and Gale Martin.
Mr Richardson gave evidence that the appellant did not disclose to Phoenix any of that relevant information. Mr Richardson's evidence about the appellant not having disclosed his relationship with the Consultants was supported by the evidence of other witnesses called by the State, namely George Baumanis and Paul Wright, each of whom was a director of Phoenix at material times.
The appellant's explanation at trial for the amount paid by Phoenix to Franklin Chen and Silicon Valley, or a very substantial proportion of it, having been remitted subsequently to his personal accounts, was that:
(a)the moneys remitted by Franklin Chen were received without his knowledge; and
(b)the moneys remitted by Silicon Valley were a loan.
On the appellant's case, the moneys remitted by Franklin Chen were received into his personal accounts pursuant to an arrangement between Franklin Chen and the appellant's wife, Susan Ardrey. The purpose of the arrangement was to enable financial assistance to be given to Mrs Ardrey's parents, Simon and Lillian Chen, who were at that time residing in Australia.
Also, the appellant's case was that Mrs Ardrey was having a secret affair with a man in Hawaii. About $50,000 had been lent to her by her brother, Franklin Chen, so that she could pursue the relationship with the man in Hawaii without the appellant's knowledge. Mrs Ardrey gave evidence to that effect at the trial.
During the trial a substantial quantity of evidence was adduced as to the extent to which Phoenix had developed the chemical process invented by Mr McArthur and the extent to which Phoenix had developed its intellectual property in the process. It was the State's case that the appellant knew, at all material times, that Phoenix did not have the appropriate level of science but, nevertheless, he represented to Phoenix that he could manufacture the licensing package for Phoenix. By contrast, it was the appellant's case that Phoenix had deliberately withheld from him important information about its level of science. The appellant claimed that if he had known the level of science which Phoenix had actually attained he would not have made the representations that he did. Numerous documents were tendered in relation to Phoenix's level of science.
In my opinion, the State had a strong case in relation to the fifth and sixth particulars of deceit or fraudulent means. Notably, it had a strong case that, apart from Franklin Chen, the Consultants did not exist and that Franklin Chen was not a legitimate consultant. Further, in my opinion, the State had a strong case that the appellant established a system by which he would benefit financially as a direct consequence of the payments which the appellant procured Phoenix to make in reliance on his representations and in the belief that the Consultants were legitimate.
My impression is that Mrs Ardrey's evidence about her affair with the man in Hawaii, and the arrangement with Franklin Chen to support her parents, was implausible.
I am satisfied, after examining the trial record and weighing the evidence at trial, that it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on each of counts 2 to 19.
A jury, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant on each of counts 2 to 19. A jury, acting reasonably, was entitled:
(a)to accept Mr Richardson's and Dr Woolley's evidence in all material respects; and
(b)to reject the appellant's and Mrs Ardrey's evidence to the extent that their evidence sought to exculpate, or tended to exculpate, him or sought to create a doubt, or tended to create a doubt, about his guilt.
Also, a jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of the evidence as a whole, that the appellant committed each of counts 2 to 19.
The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on all or any of the counts on which he was convicted. The verdicts of guilty were not unreasonable. They were supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on any of counts 2 to 19 or as to the correctness of his conviction on any of those counts.
As I have mentioned, the proposed additional evidence comprises some new evidence and some fresh evidence. It is unnecessary, in the circumstances, to deal with each category of evidence separately.
I am satisfied, on my examination of the proposed additional evidence, in the context of the evidence adduced at the trial, that it is not reasonably arguable that:
(a)the additional evidence, when evaluated with the evidence adduced at the trial, establishes the appellant's innocence on all or any of counts 2 to 19 or raises such a doubt as to require the conclusion that the appellant should not have been convicted on all or any of those counts; and
(b)the additional evidence, when evaluated with the evidence adduced at the trial, establishes a significant possibility that a jury, acting reasonably, would have acquitted the appellant on all or any of counts 2 to 19.
The appellant's application for leave to adduce additional evidence and to add the proposed additional ground of appeal should be dismissed.

The outcome of the appeal

As I have mentioned, the ground of appeal has been made out. I am not persuaded that no substantial miscarriage of justice has actually occurred. Counsel for the State did not submit otherwise. The proviso in s 30(4) of the Criminal Appeals Act is not engaged.
In my opinion, the appropriate orders in relation to counts 2 to 19, consequent upon the ground of appeal having been made out, are to grant leave to appeal on the ground of appeal, allow the appeal, set aside the judgments of conviction on counts 2 to 19 and require that there be a new trial on those counts. I would hear from the parties in relation to the setting aside of the compensation order in favour of Phoenix.
The interests of justice favour an order for a new trial and not an order that there be judgments of acquittal. The appellant did not submit otherwise. I am not satisfied, on my examination of the trial record, in the context of the proposed additional evidence, that the State has no reasonable prospect of success at a new trial. On my assessment, the State has at least reasonable prospects of successfully persuading a properly instructed jury that, on the evidence adduced at trial in the context of the proposed additional evidence, the jury should be satisfied beyond reasonable doubt as to the appellant's guilt on each of counts 2 to 19. The facts and circumstances of the case do not render it unjust to make the appellant stand trial again on counts 2 to 19. See Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630 (Gibbs CJ, Murphy, Wilson, Deane & Dawson JJ).

Interim bail applications

As I have mentioned, on 1 June 2016 this court granted the appellant bail pending the determination of the appeal. The bail was granted on a number of conditions. We said that our reasons for granting bail would be published later. I joined with the other members of the court in granting bail because I was satisfied that exceptional reasons existed why the appellant should not be kept in custody and that it was otherwise an

appropriate case for the grant of bail. In particular, I was satisfied that the ground of appeal had strong prospects of success and that, subject to the imposition of conditions, the appellant would not abscond and, having regard to the length of the term of imprisonment imposed on the appellant and the period he has already served in custody, it was in the public interest to grant bail pending the determination of the appeal.

By applications dated 16 June 2016 and 22 June 2016, the appellant applied for a variation of the conditions of his bail; in particular, the conditions that the appellant not leave the State of Western Australia and not approach within 100 m of any airport or other place of departure from Western Australia. He sought the variation to enable him to travel to Queensland, for two weeks, for business and medical reasons. On 23 June 2016, this court dismissed the applications. We said that reasons for our decision would be published later. I joined in the decision to dismiss the applications because I was of the opinion that it was not essential that the appellant travel to Queensland for the purposes he had indicated and that it was not otherwise in the interests of justice that he be permitted to leave this State, even temporarily, prior to the determination of the appeal.

The State's application in the appeal dated 21 June 2016

By application dated 21 June 2016, the State applied for, relevantly, leave to provide copies of certain documents to Phoenix's lawyer for the purpose of assisting the State in preparing written submissions in response to the document filed by the appellant on 1 June 2016 in purported compliance with the orders made by this court on 13 May 2016. See [113] ‑ [115] above. On 23 June 2016, this court rescinded the orders it made on 13 May 2016 to the extent, relevantly, that they required the State to file written submissions in response. The rescission of the relevant orders rendered the State's application dated 21 June 2016 redundant. Accordingly, the application was dismissed.
MAZZA JA: I have had the advantage of reading in draft the reasons of Buss P and Mitchell JA. I agree with the orders they propose. For the reasons given by Buss P (with whom Mitchell JA agrees), leave to appeal on ground 1 should be granted and the ground upheld.
I too would refuse the appellant's application for leave to adduce additional evidence and to add proposed ground 2. I agree with Mitchell JA that proposed ground 2 elides the concepts of the verdicts being unreasonable or unsupported on the evidence (s 30(3)(a) of the

Criminal Appeals Act 2004 (WA)) and whether a miscarriage of justice occurred by reason of fresh or new evidence (s 30(3)(c) of the Criminal Appeals Act). The appellant's particulars and submissions in support of proposed ground 2 are prolix and are largely incomprehensible. The appellant was given ample opportunity by this court to clarify his arguments. Nothing he did improved the situation. I acknowledge, with respect to the applications to adduce additional evidence and to add proposed ground 2, that the appellant appears to have had no assistance from a legal practitioner, but it must be said that the material that has been provided by the appellant to this court and his oral arguments were of no assistance.

The appellant has failed to persuade me that any of the additional evidence he proposed to adduce gives rise to a miscarriage of justice in respect of the offences for which he was convicted.
As to the question of whether the convictions were unreasonable or unable to be supported on the evidence, Mitchell JA, between [171] and [208] of his reasons, has helpfully and accurately summarised the salient features of the evidence. So too, has Buss P at [121] to [130]. Like Buss P, I am satisfied, after examining the trial record and weighing the evidence at trial, that it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on each of counts 2 to 19. The verdicts of guilty were not unreasonable and were supported by the evidence. It has not been established that the jury must have entertained a doubt about the appellant's guilt. On my assessment of the sufficiency and quality of the evidence, it would not be dangerous to permit the verdicts to stand.
I now turn to the question of whether this court should order a retrial. For the reasons given by both Buss P and Mitchell JA, the appropriate order in this case is for a retrial.
Finally, I will deal with the appellant's application for bail pending appeal and the later application he brought to vary the terms of bail. At the conclusion of the hearing of the appeal, I was satisfied that ground 1 had sufficiently strong prospects of success to constitute exceptional reasons why he should be released on bail pending judgment and it was otherwise appropriate for him to be released on bail: cl 4A of pt C of sch 1 to the Bail Act 1982 (WA).
After the grant of bail, the appellant applied to vary the conditions of his bail, essentially to enable him to travel to Queensland for two weeks to

attend a conference and medical appointments in that State. On 23 June 2016, I joined in the court's decision to dismiss the applications. I did so primarily because the evidence in support of the applications showed that there was no necessity for the appellant to travel to Queensland.

MITCHELL JA: For the following reasons I agree with Buss P that the appeal should be allowed, the judgments of conviction set aside and a new trial ordered.

Ground 1

I agree with Buss P, for the reasons which he gives, that the appeal must be allowed on ground 1. In the circumstances of this case, the trial judge was required to direct the jury that they had to be unanimous in finding that at least one (and the same one) of the particularised deceits or fraudulent means had been proven. The six particulars were presented to the jury as independent and separate bases on which they could convict the appellant of the charged fraud offences. The need for such a direction in such a case was established by Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434. The failure to give such a direction in the present circumstances constituted a miscarriage of justice for the reasons Buss P has explained.

Proviso

Further, the matters to which Buss P refers at [82] ‑ [98] give rise to a discernible risk that the jury may have convicted the appellant without being unanimously satisfied that he employed any one of the six particularised deceits or fraudulent means. In those circumstances the proviso cannot be applied as the absence of the required direction may have deprived the appellant of a fair chance of acquittal: Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [15]. The direction left it open to the jury to convict the appellant even if all of the jurors were not satisfied of any one of the particulars or sub-elements of the fifth particular. The appellant would not have properly been found guilty of the relevant offence in that circumstance on the basis that different jurors may have found different particulars to have been established. I therefore accept the State's concession that the court cannot dismiss the appeal, applying the proviso, on the basis that it is satisfied that no substantial miscarriage of justice has actually occurred.

Ground 2

It follows from the above conclusions that the appeal must be allowed and the appellant's convictions of counts 2 to 19 on the indictment set aside.
In those circumstances it is unnecessary to resolve proposed ground of appeal 2, which asserts in effect that, having regard to the evidence adduced at trial and to additional evidence sought to be adduced in the appeal, the verdicts of guilty are unreasonable or cannot be supported by the evidence.
Proposed ground 2 elides two concepts which are distinctly identified in s 30(3) of the Criminal Appeals Act 2004 (WA). The first is whether the court is of the opinion that the verdicts of guilty should be set aside because, having regard to the evidence, the verdicts are unreasonable or cannot be supported (s 30(3)(a)). This requires the court to consider the whole of the evidence led at trial and determine whether the trial record left it open to the jury to be satisfied of guilt beyond reasonable doubt. The second is whether a miscarriage of justice was occasioned by the absence of fresh evidence or new evidence (s 30(3)(c)). Where evidence is properly characterised as fresh, a miscarriage of justice will be established where there is a significant possibility that, on the basis of all relevant evidence, the jury would have acquitted the accused. Where evidence is properly characterised as new, a miscarriage will arise if the evidence establishes the accused to be innocent or raises such a doubt about his or her guilt that the appellate court is satisfied he or she should not have been convicted.
The appellant's particulars and submissions in relation to proposed ground 2 are very difficult to understand. Many of the submissions refer to the additional evidence which the appellant seeks to adduce. That is, it seems that the substance of the appellant's argument asserts a miscarriage of justice by reason of the absence of additional evidence, rather than a verdict which, having regard to the evidence led at trial, is unreasonable or cannot be supported.
The appellant was given the opportunity to present two sets of written submissions (the second according to a structure designed by the court's orders but not followed by the appellant) and oral submissions. I have found the submissions he advanced in relation to ground 2 to be incomprehensible. It appears that the appellant, who is unrepresented, had professional assistance in preparing ground 1 and the written submissions relating to ground 1. It is clear that he did not have that assistance in preparing his proposed ground 2 and submissions relating to that ground.
Given that the appeal must be allowed in any event and the perplexing nature of the appellant's submissions, it is better not to attempt to determine ground 2 when it is not necessary to do so in order to dispose of the appeal. The appellant's convictions must be set aside in any event, and the arguments on the proposed ground depend on an assessment of the significance of additional material which the appellant will be able to have admitted at a new trial so far as it is relevant and admissible. There is little to be gained in attempting to understand and deal with the appellant's incoherent arguments in relation to the impact of the additional material in these circumstances. I therefore do not propose to determine ground 2, but will consider the adequacy of the State's case when considering whether a new trial should be ordered.

New trial

The appellant did not contend that this court should substitute a judgment of acquittal on any of counts 2 - 19, or submit that there should not be a new trial on those counts. However, in light of the fact that the appellant is unrepresented, it is appropriate for this court to consider whether a new trial is appropriate.
The principles governing the exercise of the discretion to order a new trial were stated in Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630 and applied in Fermanis:
The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making a order for a new trial to give the prosecution an opportunity to supplement a defective case … Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused [190] ‑ [196].
Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of the charge has been set aside but there is evidence to support the charge: Sio v The Queen [2016] HCA 32 [75].

Particulars

The appellant was charged with offences against s 409(1)(d) of the Criminal Code (WA). That section makes a person who 'with intent to defraud, by deceit or any fraudulent means, causes a detriment, pecuniary or otherwise, to any person' guilty of a crime. In this case the detriment alleged in the charges of which the appellant was convicted was the pecuniary loss of $394,759.38 in payments made by Phoenix in respect of the relevant invoices. There was no real controversy about the appellant having caused Phoenix to suffer a detriment by making the payments pleaded in the indictment. The contentious issue at trial was whether the appellant dishonestly caused that detriment by deceit or fraudulent means.
The State's particulars of fraud are set out in Buss P's reasons at [23]. I doubt whether all of those particulars are truly allegations of fraud. The first to fourth particulars allege conduct which, at least arguably, is consistent with the behaviour of an officer who is incompetent rather than fraudulent. Those particulars in effect assert that the appellant said he could achieve an effective licensing package while armed with knowledge which indicated that this could not be achieved within the promised timeframe, and procured payments for unsuitable material.
While conduct of that kind may constitute a dereliction of duty by an employee or officer of a company, it need not reflect the dishonest use of deceit or fraudulent means. The making of unachievable predictions and obtaining of unsuitable goods or services may occur without fraud. Not all of the particulars describe conduct that necessarily signifies fraud. I also note that the evidence led in support of those grounds did not satisfy the trial judge at sentence of the matters alleged in the first to third particulars beyond reasonable doubt.
As Buss P has noted, the fifth particular has a number of sub-elements. One of those elements was that the appellant presented invoices to Phoenix purportedly issued by SVPP, well knowing that this entity did not exist. Another was that the appellant presented invoices to Phoenix purportedly issued by Franklin Chen well knowing that he was not 'appropriately qualified'. I understood the State to allege not only that the appellant knew that Franklin Chen lacked qualifications which were in fact appropriate, but that the appellant knew he lacked qualifications of a kind which the appellant had related to Mr Richardson as appropriate qualifications. To this extent at least, the fifth particular does allege conduct which is capable of being regarded as fraudulent.
The sixth particular does clearly allege fraudulent conduct. It asserts that the appellant set up a system whereby he procured payment of the relevant invoices by Phoenix to the consultants, in circumstances where he was ultimately the beneficiary of the money, by disguising the true nature of his relationship with the consultants.
In these circumstances, I will focus on the cogency of the State's case in relation to the fifth particular, so far as it alleges that SVPP did not exist and that Franklin Chen did not hold the appropriate qualifications which the appellant represented him to hold, and the sixth particular.

State's opening

In opening, prosecuting counsel indicated that, after he was engaged as a director of Phoenix to prepare the licensing package, the appellant told the company board that he had recruited Franklin Chen, said to be a medical researcher at the University of Washington, and a body identified as SVPP to provide assistance in the preparation of the licensing package (ts 640 ‑ 641).
The prosecutor said that the appellant presented invoices which led to AU$244,146.95 being paid into Franklin Chen's account and AU$159,278.37 (relating to SVPP invoices) being paid into an account of Simon and Lillian Chen (ts 646). The prosecutor alleged that Franklin Chen was the brother, and Simon and Lillian Chen the parents, of the appellant's wife. The prosecutor said that the payments equated to US$179,378.26 to Franklin Chen and US$117,240.50 to Simon and Lillian Chen. Of those amounts, it was alleged that US$157,145.70 was paid to the appellant from Franklin Chen's account and US$116,436.50 was paid to the appellant from Simon and Lillian Chen's account (ts 647).

Evidence of Mark Richardson

Mark Richardson was the managing director of Phoenix at all material times from its incorporation in 2002. He described the appellant's engagement as a non-executive director of Phoenix on 1 November 2005 (ts 674). He described various discussions about the appellant's remuneration. He explained that the appellant was given authority to engage consultants to prepare documentation for a licensing package. His evidence was to the following effect.
On 28 December 2005, Mr Richardson received an email from the appellant in which the appellant indicated that he had engaged two consultants to assist with the development of a licensing package. The first was Franklin Chen, who was described as a medical researcher at the University of Washington, who was engaged for background medical and pharmacology research of the 'ulcer segments of the dermatology field'. The second was Michael Hillmeyer, who was described as a 'Merrill Lynch tech brains' who was engaged for 'commercial licensing background research germane to our company' (ts 695 ‑ 696, exhibit 7). In a subsequent discussion, the appellant told Mr Richardson that he had worked with both consultants before, but he did not provide any other background in December 2005 - January 2006 (ts 697).
Just before the January board meeting, Mr Richardson received a briefing paper from an entity called Silicon Valley Pharmaceutical Partners (SVPP). He had not previously heard of SVPP (ts 698 ‑ 699).
Through Mr Richardson, minutes were tendered which showed that, at a Phoenix board meeting on 20 January 2006, the appellant was given a budget of $165,000 for the development of a commercial licensing package for the process (ts 684 ‑ 685; exhibit 5).
Either at or shortly after the January board meeting, the appellant told Mr Richardson that SVPP were:
a group of very successful and wealthy ex-pharma biotech executives that were having fun doing this kind of thing, helping companies such as ours, and that they weren't money-driven and they were experts in this area (ts 699).
From January 2006, Phoenix started to receive invoices purportedly from the three consultants, although the names of the consultants were not always consistently described (ts 701, 771). In the case of Franklin Chen and SVPP, the invoices were always posted to Phoenix by the appellant (ts 700). Mr Richardson received and approved payment of the invoices, and his wife arranged payment (ts 708 ‑ 709).
At the March 2006 board meeting, the appellant's budget for developing a licensing package was increased to $500,000 (ts 706, exhibit 8).
In late October or early November 2006, Mr Richardson flew to Queensland and met with the appellant. At that stage no licensing package had been provided, and the appellant said it was almost ready but he didn't have the documentation at that time (ts 750). By this time Mr Richardson had stopped paying invoices and the appellant pressed for payment of his director's fees and expenses, as well as outstanding invoices from Franklin Chen, Mr Hillmeyer and SVPP (ts 750 ‑ 751). A second meeting took place in Queensland, but no licensing package was available. Mr Richardson was not paying invoices at that time because he was beginning to doubt whether Phoenix was ever going to get a licensing package (ts 752).
Mr Richardson gave evidence of the payment of the following amounts on invoices purportedly issued by Franklin Chen:

Count

Date

Invoiced US$

Paid AU$

Exhibit

1

1 Feb 06

6,464.00

8,665.94

11

3

22 Feb 06

9,375.00

12,851.39

12

5

21 Mar 06

16,004.26

22,466.93

13

7

24 Mar 06

20,000.00

28,294.56

14

8

1 May 06

20,000.00

26,585.14

15

10

23 May 06

25,000.00

33,560.04

16

11

9 May 06

25,000.00

33,997.39

17

15

24 Jul 06

25,000.00

33,546.56

18

18

27 Aug 06

17,000.00

22,592.37

19

19

4 Oct 06

15,850.00

21,586.63

20

Total

179,693.26

244,146.95

Mr Richardson gave evidence of the payment of the following amounts on invoices purportedly issued by SVPP:

Count

Date

Invoiced US$

Paid AU$

Exhibit

2

1 Feb 06

8,670.00

11,613.17

21

4

22 Feb 06

9,553.00

13,094.82

22

6

21 Mar 06

8,570.00

12,044.58

23

9

1 May 06

17,650.00

23,532.00

24

Count

Date

Invoiced US$

Paid AU$

Exhibit

12

9 Jun 06

15,000.00

20,485.48

25

13

14 Jun 06

25,000.00

34,276.58

26

14

4 Jul 06

12,000.00

16,355.20

27

16

8 Aug 06

12,000.00

15,905.52

28

17

25 Aug 06

9,000.00

11,971.02

29

Total

117,443.00

159,278.37

Bank statements showing payment of these amounts out of Phoenix's bank account were tendered as exhibit 30.
Much of the work referred to in the invoices was not reflected in material provided to Phoenix or related to material which was clearly inadequate.
During the period when these invoices were paid, the appellant was being paid director's fees of $40,000, payable quarterly in advance, fees for chairing a committee of $30,000 per annum and expenses (ts 873 ‑ 874). The appellant was also allocated shares in Phoenix (ts 1133 ‑ 1134).
The appellant resigned as a director of Phoenix by email in May 2007.
The appellant had never explained to a Phoenix board meeting that he had any relationship with Franklin Chen or with Simon Lillian (who was referred to in SVPP invoices) (ts 907).
In 2007, Mr Richardson attended the addresses indicated in Franklin Chen's and SVPP's invoices and found residential apartments with no apparent commercial businesses operating from the address and, in one case, an office block with no reference to SVPP. Mr Richardson had also unsuccessfully attempted to find reference to SVPP in internet searches (ts 884 ‑ 887, 892 ‑ 897).
In cross-examination Mr Richardson emphatically denied that the appellant told him that Franklin Chen was the appellant's brother‑in‑law during their initial meetings (ts 1039, 1040, 1041), or that the appellant had a financial interest in SVPP (ts 1396). Mr Richardson also denied working through the invoices and related documents with the appellant and withholding relevant documents (ts 1295). Mr Richardson accepted that he paid approximately $400,000 to consultants on the say-so of one person without checking (ts 1297 ‑ 1298). While he was cross‑examined as to whether Phoenix had received the product referred to in the invoices and associated material, he was not challenged as to the fact of making the payments.

Evidence of Paul Wright

In cross‑examination, Paul Wright, the non‑executive chairman of Phoenix, indicated that he had seen documents with the names of Franklin Chen and SVPP on them, but was not sure what their role was. He did not recall the appellant telling everyone at a dinner that Franklin Chen was his brother‑in‑law (ts 1527 ‑ 1528).

Evidence of George Baumanis

George Baumanis was a director and company secretary of Phoenix. He gave evidence about the appellant's appointment as a director, his authority to engage consultants to assist in the development of a licensing package and his advising of the engagement of Franklin Chen, SVPP and Mr Hillmeyer.
Mr Baumanis denied that the appellant told him at a dinner that Franklin Chen was his brother‑in‑law (ts 1670, 1677).

Evidence of Henri Nemorin

Henri Nemorin was a forensic accountant employed in the fraud squad of Western Australia Police.
The effect of his evidence was that the payments by Phoenix of Franklin Chen's invoices referred to above were made into an American bank account held in Franklin Chen's name. Payments made by Phoenix of SVPP invoices were paid into an American bank account in the name of Simon Chen. Mr Nemorin also identified payments, by transfer or cheque, from Franklin Chen's and Simon Chen's accounts into bank accounts held by the appellant in Australia or the United States (ts 1729 ‑ 1745, exhibits 107 ‑ 113). The dates of the transactions identified in his evidence were as follows:

Payments by Phoenix to Franklin Chen,

and by Franklin Chen to the appellant

Count

Date

USD paid from Phoenix to Chen

USD paid from Chen to appellant

1

1 Feb 06

               6,432.50

  -

3

22 Feb 06

               9,343.50

  -

5

22 Mar 06

             15,972.76

  -

7

24 Mar 06

             19,968.50

  -

27 Mar 06

  -

             10,000.00

27 Mar 06

  -

             19,000.00

8

1 May 06

             19,968.50

4 May 06

  -

             17,000.00

10

23 May 06

             24,968.50

  -

26 May 06

  -

             12,968.50

30 May 06

  -

             10,000.00

11

9 Jun 06

             24,968.50

  -

16 Jun 06

  -

             10,000.00

18 Jun 06

  -

             12,882.50

15

24 Jul 06

             24,968.50

  -

26 Jul 06

  -

               7,679.20

27 Jul 06

  -

             15,000.00

18

28 Aug 06

             16,968.50

  -

29 Aug 06

  -

               6,000.00

29 Aug 06

  -

               8,930.00

19

4 Oct 06

             15,818.50

  -

12 Oct 06

  -

             13,704.50

Total

            179,378.26

            143,164.70

Payments by Phoenix to Simon Chen,

and by Simon Chen to the appellant

Count

Date

USD paid from
Phoenix to Chen

USD paid from

Chen to appellant

2

1 Feb 06

               8,647.50

  -

6 Feb 06

  -

               8,000.00

4

22 Feb 06

               9,530.50

  -

24 Feb 06

  -

               9,530.00

6

21 Mar 06

               8,547.50

  -

22 Mar 06

  -

               8,547.50

9

2 May 06

             17,627.50

  -

3 May 06

  -

             17,627.00

12

12 Jun 06

             14,977.50

  -

13 Jun 06

  -

             10,000.00

15 Jun 06

  -

               4,977.00

13

15 Jun 06

             24,977.50

  -

15 Jun 06

  -

             24,800.00

14

5 Jul 06

             11,977.50

  -

7 Jul 06

  -

             10,000.00

7 Jul 06

  -

               1,977.00

16

9 Aug 06

             11,977.50

  -

10 Aug 06

  -

             12,000.00

17

25 Aug 06

               8,977.50

  -

28 Aug 06

  -

               8,977.50

Total

            117,240.50

            116,436.00

Under cross‑examination, Mr Nemorin accepted that there were other payments into and out of the relevant accounts, and that US$1,000 payments were made from the appellant's American bank account to Lillian Chen on 6 March 2006, 27 March 2006, 9 May 2006 (two payments), 8 June 2006, 2 July 2006, 5 August 2006 and 7 October 2006 (ts 1750 ‑ 1751).

Evidence of Richard McCloskey

Richard McCloskey was a private investigator in the United States who gave evidence that, despite undertaking various inquiries and searches, he was unable to find any record of Franklin Chen practising as a professional person of any sort in the United States. He also could not find any record of Franklin Chen Associates practising as a consultancy of any type (ts 1781).

Evidence of Detective Sergeant Reynolds

Detective Sergeant Reynolds gave evidence of executing a search warrant and extradition warrant at the appellant's Queensland residence on 16 November 2011. At that time the appellant's wife and children and Simon Chen were present at the house (ts 1794). He conducted a recorded interview with the appellant, which it is unnecessary to detail here other than to note that the appellant indicated that he was not able to recall SVPP or why the SVPP payments were made to Simon Chen.

Evidence of the appellant

The appellant gave evidence at trial. He said that his wife's maiden name was Susan Chen, her parents' names were Lillian and Simon Chen and her brother's name was Franklin Chen (ts 1844).
The appellant's evidence was that he disclosed to Mr Richardson at an early meeting that Franklin Chen was his brother‑in‑law and that he had a partnership with a Graham Toner which was SVPP (ts 1864).
The appellant said that he understood that Franklin Chen was a researcher at the Department of Zoology at the University of Washington who had previously done literature reviews on previous projects in which the appellant was involved (ts 1896). He said that his relationship with Franklin Chen was discussed at a dinner at the time of Phoenix's January 2006 board meeting (ts 1898).
The appellant related discussions he had with various people, and indicated that he was unclear as to what he was tasked to do (ts 1916). The appellant in effect said that the general arrangement he had with consultants was to receive instructions as to the work the consultants were to do and he would send the work and invoices to Mr Richardson (ts 1991).
The appellant said that he did not have any arrangement with Franklin Chen for the payment of money into his bank accounts, but was aware of money coming into his account from Franklin Chen and other Chen family members (ts 2060). He said that money paying SVPP invoices was directed to Simon Chen's bank account because he was a 'director of my QMG company' which was in partnership with SVPP and Graham Toner's company. The appellant said that this business relationship was fully disclosed to Phoenix (ts 2061, 2131 ‑ 2132). The appellant said this partnership did not have its own bank account, and gave a rather vague and confusing explanation for why the money was paid to his account (ts 2061 ‑ 2062).
The appellant said that the work by the consultants was done, handed over and accepted by Phoenix, and that he did have a financial interest in the work which was disclosed (ts 2063).
In cross‑examination, the appellant accepted that the money had been paid into his accounts by Franklin Chen, but said he did not ask any questions about that at the time of the payments and was 'not looking very closely at my accounts at the time' (ts 2110). He said that his wife had become bankrupt and 'was not able to have her own bank accounts at that time because of a separate legal proceeding' (ts 2110). He said that he had no financial dealings with Franklin Chen and that he left 'the Asian family things to the Asian side of the family' (ts 2111). He accepted that he had not told anyone at Phoenix about payments he was receiving from Franklin Chen. The appellant accepted that he pressed for payment of Franklin Chen's invoices when Mr Richardson stopped paying them, but denied that this was because some of the money was coming back to him (ts 2117 - 2118).
The appellant's evidence was to the effect that he retained all the money paid to SVPP, because Dr Toner didn't want it for tax reasons (ts 2178 ‑ 2179). He also described the money sent from Simon Chen's bank account as a 'loan to the partnership', and said that the bank account was nominated by Dr Toner and Dr Toner did the invoicing (ts 2180 ‑ 2181, 2519 ‑ 2521). He didn't know whether Dr Toner was alive, or where he might be, at the time of trial (ts 2178).
The appellant gave evidence that he understood that Franklin Chen was working as a researcher at the University of Washington's Department of Zoology, had done consulting work in the form of literature reviews for other projects and was 'working at a drug store called Walgreens Drug Store and completing his qualifications' (ts 1896). In cross‑examination the appellant said he did not have any detailed knowledge of Franklin Chen's qualifications but understood that he subsequently qualified and was working as an assistant pharmacist (ts 2095 ‑ 2096). Documents produced from the University of Washington indicated that Franklin Chen neither worked nor studied at the University in 2005 or 2006 (exhibits 115 and 116).
In re‑examination, the appellant produced a number of documents which he said related to Franklin Chen's qualifications (ts 2621 ‑ 2626; exhibits 132 ‑ 134). The documents indicated that he was a 'pharmacy technician'. He also produced what was said to be a payslip stub relating to Franklin Chen from the University of Washington's Zoology Department in 2001. The appellant also produced a document referring to a conference paper co‑authored by the appellant and Franklin Chen, but which two witnesses called by the State in rebuttal indicated was in fact an article to which Dr Yan Chen, rather than Franklin Chen, contributed (ts 2773 ‑ 2789).

Evidence of Susan Ardrey

The appellant's wife, Susan Ardrey, gave evidence by video link from Brisbane and confirmed the family relationships described above. Her evidence was to the effect that her parents were living in Australia and that Franklin Chen would pay money into the appellant's bank account which would be used for their expenses. She also received a loan from Franklin Chen. The appellant was not a party to the dealings, and she used his bank accounts because she did not have her own.
Susan Ardrey also recalled being at a dinner after one of Phoenix's board meetings at which the appellant's relationship with Franklin Chen was discussed.

Assessment of State's case

It was open to the jury to accept Mr Richardson's evidence that the appellant did not disclose his relationships with Simon, Lillian and Franklin Chen.
The uncontroverted evidence was that all of the payments of SVPP's invoices were made to Simon Chen's account and that, within days, roughly the same amounts were transferred to the appellant's bank account.
The same pattern emerges in relation to payments to and by Franklin Chen which were the subject of counts 7, 8, 10, 11, 15, 18 and 19. Of the US$15,972.56 paid into Franklin Chen's account on 22 March 2006, which was the subject of count 3, US$10,000 was paid to the appellant's account on 27 March 2006. Although there is no confirmed payment to the appellant in respect of the US$9,343.50 paid into Franklin Chen's account on 22 February 2006, there was evidence of a 'wire transfer' to Australia, for which there was no copy of the 'wire', in the amount of US$6,000 on 27 February 2006. The only payment of which there was no evidence of the appellant receiving the ultimate benefit was the subject of count 1, of which the appellant was acquitted.
The explanations of the appellant and his wife for these transactions strained credulity in various respects and it was open for the jury to reject them. Evidence about the existence and nature of the 'partnership' with Dr Toner was vague and did not adequately explain why payments would have been made to Simon Chen's account and then passed on to the appellant. The appellant could not explain the payments from Franklin Chen into his account, and Susan Ardrey's account of the intra‑family payments was very unusual and could properly have been rejected by the jury.
It was open to the jury to be satisfied that SVPP did not exist. The evidence of Mr Richardson and Mr McCloskey was that various searches could not locate any sign of the group existing. The appellant's evidence about the group was vague and unsupported by documentary evidence. He could not say where Dr Toner might be located. The arrangements he described having with Dr Toner were highly unorthodox and made little commercial sense. The final product which Phoenix received from the group was 20 pages of rather general marketing advice purportedly prepared by Dr Toner of 'SVVP' rather than SVPP (exhibit 37.1). The only independent evidence of Dr Toner's existence was of a defence witness, Mr Penfold, who vaguely recalled having a teleconference with a Graham Toner in around 2005 (ts 2669 ‑ 2670). If SVPP did not in fact exist then the appellant, who claimed to be a partner, must have known of this.
It was common ground at trial that Franklin Chen existed. However, it was open to the jury to find that he did not have the qualifications represented by the appellant to Mr Richardson. It was uncontroversial that the appellant had described Franklin Chen as a medical researcher at the University of Washington, engaged to conduct 'background medical and pharmacology research on the ulcer program of the dermatology field' (exhibit 7). The evidence noted above was capable of satisfying the jury that the appellant knew that Franklin Chen was not appropriately qualified to do the work, in the way that the appellant had represented him to be.
There was extensive evidence, which it is not convenient to detail in these reasons, from which the jury could conclude that the value of work received by Phoenix from SVPP and Franklin Chen did not justify the amount paid by Phoenix. Although this evidence was primarily directed to the second to fourth particulars, it is also relevant to the fifth and sixth particulars. The quality and value of the work produced assists in drawing an inference that the invoicing system was established with intent to defraud, to conceal the direction of payments to the appellant.
In my view the evidence as a whole left it open to the jury to conclude that the appellant disguised his relationship with the persons who received payments of the invoices purportedly issued by Franklin Chen and SVPP and so disguised the fact that the payments were, in whole or substantial part, ultimately for his benefit. It was open to the jury to be satisfied that the invoices purportedly issued by Franklin Chen and SVPP were a sham designed to conceal the fact that the appellant was the ultimate beneficiary of the whole or a substantial part of each of the payments.
It was open to the jury to be satisfied beyond reasonable doubt that the appellant, acting with intent to defraud, caused Phoenix to make the payments by deceit or fraudulent means on the bases I have indicated. In my view, the evidence led at trial was sufficiently cogent to justify a conviction of all counts of which the appellant was convicted on the basis of the fifth particular, so far as it alleges that SVPP did not exist and that Franklin Chen did not hold the appropriate qualifications which the appellant represented him to hold, and the sixth particular.
The additional material produced in this appeal, if admitted at a new trial, would not preclude the appellant from being convicted on the basis described above.

Matters personal to the appellant

In considering whether to order a new trial, I have also taken account of the fact that the appellant has been through one lengthy trial and that an earlier trial had been aborted at an early stage due to the illness of a State witness. It is also significant that the appellant has been in custody from 3 March 2015 until his release on bail on 1 June 2016, serving a significant part of the total effective sentence of 4 years' imprisonment which must now be set aside.

Conclusion as to new trial

Having regard to the public interest in the proper administration of justice and the interests of the appellant, the appropriate exercise of this court's discretion is to order a new trial on counts 2 - 19. The charges are serious, and the State adduced evidence on which it was open to the jury to be satisfied of the appellant's guilt. The appellant has served only a little over a quarter of the sentence imposed for those offences. While the burden of a second potentially lengthy trial on the appellant is a factor which counts against exercising the discretion to order a new trial, that factor is outweighed by the other considerations to which I have referred.

Interim bail applications

I agree with Buss P's and Mazza JA's reasons for granting bail and dismissing the appellant's interim applications for variations of his bail conditions.

Count	Date	Invoiced US$	Paid AU$	Exhibit
1	1 Feb 06	6,464.00	8,665.94	11
3	22 Feb 06	9,375.00	12,851.39	12
5	21 Mar 06	16,004.26	22,466.93	13
7	24 Mar 06	20,000.00	28,294.56	14
8	1 May 06	20,000.00	26,585.14	15
10	23 May 06	25,000.00	33,560.04	16
11	9 May 06	25,000.00	33,997.39	17
15	24 Jul 06	25,000.00	33,546.56	18
18	27 Aug 06	17,000.00	22,592.37	19
19	4 Oct 06	15,850.00	21,586.63	20
Total	179,693.26	244,146.95

Payments by Phoenix to Franklin Chen, and by Franklin Chen to the appellant
Count	Date	USD paid from Phoenix to Chen	USD paid from Chen to appellant
1	1 Feb 06	6,432.50	-
3	22 Feb 06	9,343.50	-
5	22 Mar 06	15,972.76	-
7	24 Mar 06	19,968.50	-
27 Mar 06	-	10,000.00
27 Mar 06	-	19,000.00
8	1 May 06	19,968.50
4 May 06	-	17,000.00
10	23 May 06	24,968.50	-
26 May 06	-	12,968.50
30 May 06	-	10,000.00
11	9 Jun 06	24,968.50	-
16 Jun 06	-	10,000.00
18 Jun 06	-	12,882.50
15	24 Jul 06	24,968.50	-
26 Jul 06	-	7,679.20
27 Jul 06	-	15,000.00
18	28 Aug 06	16,968.50	-
29 Aug 06	-	6,000.00
29 Aug 06	-	8,930.00
19	4 Oct 06	15,818.50	-
12 Oct 06	-	13,704.50
Total	179,378.26	143,164.70

Payments by Phoenix to Simon Chen, and by Simon Chen to the appellant
Count	Date	USD paid from Phoenix to Chen	USD paid from Chen to appellant
2	1 Feb 06	8,647.50	-
6 Feb 06	-	8,000.00
4	22 Feb 06	9,530.50	-
24 Feb 06	-	9,530.00
6	21 Mar 06	8,547.50	-
22 Mar 06	-	8,547.50
9	2 May 06	17,627.50	-
3 May 06	-	17,627.00
12	12 Jun 06	14,977.50	-
13 Jun 06	-	10,000.00
15 Jun 06	-	4,977.00
13	15 Jun 06	24,977.50	-
15 Jun 06	-	24,800.00
14	5 Jul 06	11,977.50	-
7 Jul 06	-	10,000.00
7 Jul 06	-	1,977.00
16	9 Aug 06	11,977.50	-
10 Aug 06	-	12,000.00
17	25 Aug 06	8,977.50	-
28 Aug 06	-	8,977.50
Total	117,240.50	116,436.00