Barnes v The Queen
[2001] WASCA 86
•22 MARCH 2001
BARNES & ANOR -v- THE QUEEN [2001] WASCA 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 86 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:219/1996 | 6 SEPTEMBER 2000 | |
| Coram: | WALLWORK J PARKER J WHEELER J | 22/03/01 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeals dismissed | ||
| PDF Version |
| Parties: | JENNIFER MAY BARNES JOHN TERENCE CHAMBERLAIN THE QUEEN |
Catchwords: | Criminal law Appeals against conviction Secret commission, false pretences, stealing as a servant Failure to order separate trial of offences Honest claim of right Whether verdicts unsafe and unsatisfactory No new principles |
Legislation: | Nil |
Case References: | Barnes & Anor v The Queen, unreported; District Ct of WA (Barlow DCJ); Library No 5141; 12 November 1996 Beck & Smith v R [1984] WAR 127 De Jesus v R (1986) 68 ALR 1 Ludlow v R [1971] AC 29 M v The Queen (1994) 181 CLR 487 Phillips v The Queen, unreported; CCA SCt of WA; Library No 960639; 8 October 1996 R v Kray [1969] 3 WLR 831 R v Pollard [1962] QWN 27 Rex v Sims [1946] KB 531 Seiler v R [1978] WAR 27 Sutton v R (1984) 152 CLR 528 K v R, unreported; CCA SCt of WA; Library No 980276; 22 May 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BARNES & ANOR -v- THE QUEEN [2001] WASCA 86 CORAM : WALLWORK J
- PARKER J
WHEELER J
- CCA 221 of 1996
- JOHN TERENCE CHAMBERLAIN
Applicants
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeals against conviction - Secret commission, false pretences, stealing as a servant - Failure to order separate trial of offences - Honest claim of right - Whether verdicts unsafe and unsatisfactory - No new principles
Legislation:
Nil
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Result:
Leave to appeal granted
Appeals dismissed
Representation:
Counsel:
Applicants : In person
Respondent : Mr B Fiannaca
Solicitors:
Applicants : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Barnes & Anor v The Queen, unreported; District Ct of WA (Barlow DCJ); Library No 5141; 12 November 1996
Beck & Smith v R [1984] WAR 127
De Jesus v R (1986) 68 ALR 1
Ludlow v R [1971] AC 29
M v The Queen (1994) 181 CLR 487
Phillips v The Queen, unreported; CCA SCt of WA; Library No 960639; 8 October 1996
R v Kray [1969] 3 WLR 831
R v Pollard [1962] QWN 27
Rex v Sims [1946] KB 531
Seiler v R [1978] WAR 27
Sutton v R (1984) 152 CLR 528
Case(s) also cited:
K v R, unreported; CCA SCt of WA; Library No 980276; 22 May 1998
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1 WALLWORK J: I agree with the reasons for judgment of Parker J and to the orders proposed by his Honour. There is nothing I wish to add.
2 PARKER J : The applicants for leave to appeal against conviction, Mrs Barnes and Mr Chamberlain, were jointly tried on an indictment in the District Court before Barlow DCJ and a jury. The trial was conducted between 11 - 28 November 1996. The indictment had charged six offences but verdicts of not guilty were returned by the jury in respect of counts 5 and 6 so that no issue arises on these applications with respect to those counts.
3 Counts 1 - 4 in the indictment were as follows:
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- Counts 5 and 6 were similar to counts 1 and 2 although alleging an offence on or about 29 December 1990 concerning $3,175.
4 In accordance with the verdicts returned by the jury, Mr Chamberlain was convicted on count 1 of giving a secret commission, Mrs Barnes was convicted on count 2 of receiving that secret commission, and both applicants were convicted on count 3, false pretences, and count 4, stealing as a servant. With respect to counts 3 and 4 it was the Crown case that Mrs Barnes was the principal offender although Mr Chamberlain may have been a principal or an aider with respect to count 3.
5 While the applicants were represented by experienced counsel at the trial they were unrepresented before this Court. Following the convictions in 1996 both applicants sought leave to appeal against conviction and leave to appeal against sentence. At their request their applications for leave to appeal against sentence were heard and determined in the ordinary course. Leave was refused to both applicants. These applications for leave to appeal against conviction were, however, adjourned sine die at their request. It seems to have been their hope that they might be able to arrange legal representation at a later time. That has not proved possible so that the applications were eventually pursued before us without representation. The submissions they wished to place before the Court were quite extensively documented and these were supplemented by oral submissions which Mr Chamberlain made on behalf of both applicants. There were also further written submissions in reply presented by leave after the conclusion of the hearing.
6 While the issues which the applicants wish to raise were clearly identified it should be observed that in a number of respects the applicants' submissions have sought to introduce matters of factual detail which were not in evidence at the trial and have sought to re-canvas issues relevant to the sentences imposed and to make observations about official enquiries into the affairs of the Shire of Boddington. Necessarily, these applications will be considered and determined on the basis of the evidence led at the trial and it is not for this Court to give further consideration to the sentences which were imposed or to make any observations with respect to the official enquiries.
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7 The grounds of appeal of both applicants as amended by leave at the hearing are:
1. The trial Judge erred in law in failing to order separate trials.
2. The trial Judge erred in refusing to direct the jury with respect to the defence of honest claim of right in relation to counts 3 and 4.
3. The trial Judge erred in law in failing to adequately instruct the jury with respect to the burden of proof on the accused.
4. That the verdicts were unsafe and unsatisfactory. Particulars were detailed of this ground which will be dealt with in the reasons that follow.
Ground 1. Separate trial of offences
8 At the commencement of the trial counsel for the applicants sought an order pursuant to s 585 of the Criminal Code that the trial of counts 3 and 4 be had separately from the trial of counts 1, 2, 5 and 6. The trial Judge refused to order separate trials and delivered written reasons for his decision; Barnes & Anor v The Queen, unreported; District Ct of WA (Barlow DCJ); Library No 5141; 12 November 1996. The appellants now contend that the trial Judge erred in law in dismissing the application.
9 It is to be noted that the application made was for there to be two trials, each concerning both of the applicants, rather than one. It was not contended that there should be separate trials of the two applicants, or that each of the six counts should be the subject of a separate trial.
10 In essence, it is contended that, at least substantially, the evidence relating to counts 1 and 2 and counts 5 and 6 was not relevant to counts 3 and 4. Hence, it is submitted, that the trial of counts 3 and 4 should have been held separately from the trial of the other four counts. As I understand the submission this is advanced both on the basis that s 585 does not authorise the joinder of these counts in the indictment and prejudice from joinder. Further, as counts 1, 2, 5 and 6 allege contraventions of Chapter LV of the Criminal Code, s 543 has the effect of casting an onus on the applicants to show that any valuable consideration given or received was not given or received in contravention of Chapter LV, ie in this case, corruptly. The applicants did not have any onus to discharge with respect to counts 3 and 4. This consideration, it is submitted, should also have required the trial of counts
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- 3 and 4 to be separate from the trial of the other counts as the operation of s 543 and the shift of the burden of proof might have obliged the applicants to give evidence in relation to counts 1, 2, 5 and 6 in which event they would be prejudiced by being denied effectively their right to silence in relation to counts 3 and 4. In this last respect, the applicants effectively renewed the submissions that were put at the commencement of the trial. It is to be noted, however, that in fact neither applicant gave evidence at the trial.
11 The notion of what comprises a series of offences of the same or a similar character in s 585 owes much in its derivation to Sch 1, r 3 of the Indictment Act, 1915 (UK). The discussion of the notion in that context by Lord Pearson, Lords Hodgson, Donovan, Wilberforce and Diplock concurring, in Ludlow v R [1971] AC 29, in particular at 38 - 41, offers revealing insight into, and provides considerable assistance in applying, the notion. It is regularly referred to in decided cases by this Court, eg Seiler v R [1978] WAR 27, 32, Beck & Smith v R [1984] WAR 127, 133, Phillips v The Queen, unreported; CCA SCt of WA; Library No 960639; 8 October 1996, and by the High Court when s 585 of the Criminal Code was considered in De Jesus v R (1986) 68 ALR 1.
12 In Ludlow, Lord Pearson at 38 accepted from the decision in R v Kray [1969] 3 WLR 831 that two offences could constitute a series. Turning to the words "of a similar character", Lord Pearson at 39 - 40 said:
" … I think the proper conclusion to be drawn from the judgments as a whole is that both the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.
In my opinion, however, it is important to notice that there has to be a series of offences of a similar character. For this purpose there has to be some nexus between the offences. Counsel criticised the wording of passages in judgments appearing to say that there cannot be similarity of character without a nexus. But I think this criticism, if it has any validity, applies only to the wording, and not to the substance, because when regard is had to the requirement of a series of similar offences it is right to look for a nexus. Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.
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- In the Kray case the Court of Appeal said, at p 836:
'… offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.'
They referred to the facts of Rex v Clayton-Wright [1948] 2 All ER 763, and cited a passage from the judgment of Lord Goddard CJ in that case where he said, at p 765:
'One test which the learned judge applied was to consider whether or not the evidence with regard to the mink coat could be given in evidence on the other charges. He came to the conclusion that it could, and, in the opinion of the court, he came to a right conclusion … That was one ground, but the main ground on which the court holds that there was no misjoinder is the following. The charge contained in the first three counts … in substance was that the appellant fired the yacht with the idea of swindling underwriters. The charge with regard to the mink coat was a similar charge of swindling underwriters, and, therefore, one gets what I may call the nexus of insurance, the nexus of fraudulent acts to the prejudice of the underwriters.'
In my opinion, there was in the present case a sufficient nexus between the two offences to make them a 'series of offences of a similar character' within the meaning of the rule. They were similar both in law and in fact. They had the same essential ingredient of actual or attempted theft, and they involved stealing or attempting to steal in neighbouring public-houses at a time interval of only 16 days.
Another point dealt with in the Court of Appeal's judgment in the Kray case is relevant for the present case also. They said [1969] 3 WLR 831, 836-837:
'It is not desirable, in the view of this court, that rule 3 should be given an unduly restricted meaning, since any risk of injustice can be avoided by the exercise of the judge's discretion to sever the indictment. All that is necessary to satisfy the rule is that the offences should exhibit such
- similar features as to establish a prima facie case that they can properly and conveniently be tried together.'
- That last sentence is not a construction of the rule, but I think it is helpful practical advice for those applying the rule. The view that rule 3 should not be given an unduly restricted meaning derives support from authority: Rex v Ailes (1918) 13 Cr App R 173. When it is available it should be used: Rex v Taylor (1924) 18 Cr App R 25; Rex v Tyreman (1925) 19 Cr App R 4; Rex v Smith (1926) 19 Cr App R 151; Connelly v Director of Public Prosecutions [1964] AC 1254, 1296, 1312-1313, 1351, 1367."
13 As with s 585 of the Criminal Code, the Indictments Act 1915 also provides for the trial Judge to be able to order separate trials of offences properly joined in the one indictment. Lord Pearson, at 40-41 of Ludlow, gave consideration to the exercise of that discretion by the trial Judge in that case. Near the foot of p 41 of the report he gave some useful illustrations of the circumstances when separate trials should be ordered, although care should be exercised about the phrase he used that "some special feature of the case" should require separate trials in view of the decision of the High Court in De Jesus v R. At 40-42 Lord Pearson went on to cite with approval a passage in the judgment of Lord Goddard CJ in Rex v Sims [1946] KB 531 at 536 where the Lord Chief Justice said:
"We do not think that the mere fact that evidence is admissible on one count and inadmissible on another is by itself a ground for separate trials: because often the matter can be made clear in the summing-up without prejudice to the accused. In such a case as the present, however, it is asking too much to expect any jury when considering one charge to disregard the evidence on the others, and if such evidence is inadmissible, the prejudice created by it would be improper and would be too great for any direction to overcome."
14 Somewhat similar views were expressed by Brennan J in Sutton v R (1984) 152 CLR 528 at 541-2:
"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences.
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- Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."
15 As was observed by Brennan J at 541 the facts to be taken into account by the trial Judge in determining whether charges are properly joined in an indictment are the facts alleged by the Crown. As his Honour noted it is immaterial that those facts are disputed by the defence. In the present case there was a connection alleged by the Crown between counts 3 and 4 on the one hand and counts 5 and 6 on the other, in that it was the Crown's case that following and by virtue of receipt of money by Mr Chamberlain as a consequence of the transactions the subject of counts 3 and 4, Mr Chamberlain paid to Mrs Barnes and she received the further secret commission the subject of counts 5 and 6. It was the case, however, that for the most part the evidence relating to counts 3 and 4 would not have been directly relevant on the separate trial of counts 5 and 6, or vice versa. Nor was this a case where the principles applicable to similar fact or propensity would justify the admission of the evidence relating to counts 1 and 2, or 3 and 4, or 5 and 6, on the separate trial of either of the other two pairs of those offences. The issue for the purposes of joinder was, therefore, whether the offences charged formed or were part of a series of offences of a similar character within the sense of that notion in s 585 as discussed in the authorities.
16 During the period covered by the indictment Mrs Barnes was the Assistant Shire Clerk, and at the times material to counts 3 and 4 the Acting Shire Clerk, of the Shire of Boddington. She and Mr Chamberlain were personal friends. Mr Chamberlain had acted first as a consultant to the Shire as it developed plans for and decided to construct a swimming pool in Boddington and then as the contractor to construct that pool after he was awarded the contract by the Shire Council in June 1990.
17 As was well known to all parties the Ministry of Sport and Recreation of the State of Western Australia had agreed to meet one third of the cost incurred by the Shire in the construction of the pool.
18 The Crown case was that without the knowledge or permission of the Shire and corruptly Mrs Barnes had taken advantage of her position as
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Acting or Assistant Shire Clerk to assist Mr Chamberlain in relation to the pool contract.
19 In particular it was the Crown case that Mrs Barnes had introduced Mr Chamberlain to the Shire Council as someone able to advise on building the pool, had put forward a plan by which Mr Chamberlain was to be consulted re the pool project, and had prepared documents relating to the pool project for Mr Chamberlain.
20 Counts 1 and 2, and 5 and 6, concerned two occasions where in the Crown's case Mr Chamberlain, having been paid money by the Shire for his work on the swimming pool project, then corruptly paid Mrs Barnes $4,000 on or about 5 July 1990, and $3,175 on or about 29 December 1990, for the assistance she had provided.
21 Counts 3 and 4 concerned an account which Mr Chamberlain submitted under his business name to the Shire detailing purported variations under the contract so as apparently to justify the payment to him of an additional sum of $51,400. It was the Crown case that there was no entitlement under the contract for additional payment for any of the items the subject of this account and further that payment of the $51,400 or any similar sum to Mr Chamberlain had not been authorised by the Council. It was the Crown case that even though Mrs Barnes knew that Mr Chamberlain's account was not for genuine variations and that payment had not been authorised, she then completed a Shire cheque which had been signed in blank by two Councillors, making it payable to Mr Chamberlain for $51,490 and signed it herself. That cheque was paid to Mr Chamberlain and banked by him in his firm's account. This was the subject of count 4 which alleged the theft of that $51,490. (The evidence offers no explanation of the $90 payment above the amount of the account). With respect to count 3 it was the Crown case that by her conduct Mrs Barnes effectively represented to the Ministry that the account for $51,400 was for authorised variations to the swimming pool and so induced the Ministry to pay $17,163 to the Shire (it will be noted that $17,163, which was the amount paid, is actually a third of $51,490 the amount of the Shire cheque paid to Mr Chamberlain). It was the Crown case that Mr Chamberlain benefited from this $17,163 and then paid Mrs Barnes the money charged in counts 5 and 6. There was much more to these transactions the subject of counts 3 and 4 which will be considered later in these reasons.
22 Thus it can be seen that the six counts joined in the indictment are each offences which are similar in nature in the sense discussed in the
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authorities. They each allege dishonesty. The circumstances in which the offences charged were alleged to have being committed were such that each of the counts involved conduct by the two applicants, in connection with the swimming pool project, over a period of some six months, and for the purpose of one or other of the applicants benefiting financially by fraudulent or corrupt means, from or through the Shire. In my view, in these circumstances the offences joined in the indictment clearly constituted a series of a similar character for the purposes of s 585.
23 The trial Judge correctly directed himself as to the applicable legal principles and properly reached the conclusion that the joinder in the indictment was authorised.
24 His Honour then went on to consider whether a separate trial of counts 3 and 4 should be ordered as sought by the applicants. In this respect he directed himself in accordance with the passage cited earlier in these reasons from the decision of Brennan J in Sutton v R. He concluded, however, that in this case the applicants could be adequately protected from the risk of impermissible prejudice by appropriate direction to the jury so that he refused to order the separate trial of counts 3 and 4.
25 As was pointed out by this Court in Phillips v The Queen (supra) at 5:
" … the question of propriety of joinder is procedural. Error in this regard will not constitute a ground for quashing a conviction unless it is seen that as a result of the joint trial following improper joinder, a miscarriage of justice has occurred."
- These words necessarily embrace both joinder in the indictment and a decision not to order separate trials as the determinative issue is whether a joint trial has caused a miscarriage of justice.
26 In a detailed and comprehensive charge the trial Judge stressed to the jury that there were in effect eight entirely separate trials so that they should approach the consideration of their verdicts on that basis. Further, his Honour not only directed the jury with care as to the need to consider each charge against each of the applicants separately, with appropriate directions against having regard to a verdict of guilty on one count or against one applicant when considering other counts or the other applicant, but in dealing with each count he meticulously spelt out what the Crown must establish to prove its case. He did this with respect to
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each applicant and each count separately. He reminded the jury several times of the need to consider each charge and each applicant separately. His Honour carefully identified the different issues to be considered where Mrs Barnes in counts 3 and 4 was charged as a principal and Mr Chamberlain as an aider or procurer. The directions dealt with particular care as to the circumstances in which the onus would fall on the applicants on counts 1, 2, 5 and 6 by virtue of s 543, and as to the issue which was the subject of that special onus. His Honour clearly and repeatedly directed the jury that for counts 3 and 4 the onus remained at all times on the Crown and that s 543 had no application to counts 3 and 4. This was further reinforced by the directions his Honour gave, separately in respect of each applicant, as to what must be proved by the Crown before a verdict of guilty could be returned in respect of each count. Neither applicant gave evidence at the trial and it is to be noted that the jury returned verdicts of not guilty on counts 5 and 6 notwithstanding that s 543 applied to those counts. This was not a case in which the nature or circumstances of any of the offences charged gave rise to a particular risk of prejudice, nor were the number and circumstances of the offences such as to give rise to a real risk of confusion.
27 In all the circumstances I am not persuaded that, by virtue of his Honour's decision not to order the separate trial, there is reason to think that he erred in the exercise of his discretion or that there has been a miscarriage of justice.
28 Ground 1 has not been made out.
Ground 2. Honest claim of right
29 It is contended that the trial Judge erred in not directing the jury as to honest claim of right. This ground is confined to counts 3 and 4.
30 The second paragraph of s 22 of the Criminal Code provides:
"But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."
31 Neither applicant gave evidence and neither expressly raised an honest claim of right when interviewed by investigating authorities before trial although it was the defence case at trial that this was the effect of
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what Mr Chamberlain had said to the police. It is accepted by the Crown, however, that the issue of an honest claim of right may be left to the jury even though the accused person has not given evidence that he or she had the requisite state of mind; R v Pollard [1962] QWN 27 at 29 per Gibbs J as he then was.
32 The facts leading to counts 3 and 4 were as follows.
33 Evidence was led of a meeting with Mr Allen of the Ministry, which Mrs Barnes and Mr Chamberlain attended in September 1990, at which cost overruns on the swimming pool project were explained to Mr Allen and Mrs Barnes was advised by him, it seems, to submit an account or claim so that the Shire might be reimbursed one third of the extra costs from the Ministry. This she did by letter dated 7 November 1990 which attached Mr Chamberlain's account for $51,400 which she described as "in line and in accordance with the contract terms for the construction of the Boddington Swimming Pool Complex". She also corrected an omission to make a claim on the Ministry in respect of the purchase price of the land on which the pool was constructed which was $28,761. When Mr Allen received that letter which included the account for $51,400 on 7 November 1990 he requested Mrs Barnes to forward voucher numbers which would support the actual payment by the Shire of the sums claimed. The account signed by Mr Chamberlain for $51,400 had described its contents as for "variations in additional works (sic) carried out on the Boddington Swimming Pool Complex". By letter dated 9 November 1990 Mrs Barnes forwarded copies of vouchers to satisfy Mr Allen's request. One of these vouchers, which had been prepared by Mrs Barnes and dated 6 November 1990, was in favour of J Chamberlain for "swimming pool payment" for the sum of $51,490. Her covering letter to Mr Allen at the Ministry said:
"Please find attached the final vouchers pertaining to the expenditure on the Boddington Swimming Pool Complex."
- The effect of the evidence was that the Ministry's officers accepted from this that the $51,490 had been paid by the Shire for the swimming pool complex inter alia for the authorised contractual variations detailed in the account of Mr Chamberlain. By cheque dated 14 December 1990, received by the Shire on 18 December 1990, the Ministry paid to the Shire $27,417 of which $17,163 was the Ministry's one third share of the $51,490.
34 It is to be noted that while the Shire's cheque for $51,490 was dated by Mrs Barnes on 6 November 1990, which was the same date as the
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voucher she had prepared for this amount, that cheque was not deposited into his firm's account by Mr Chamberlain until 19 December 1990. This was the day after the Shire received the Ministry's cheque.
35 The applicants in their submissions contend that Mr Chamberlain was entitled to payments for variations additional to the contract sum of $380,000 for the swimming pool or as they were sometimes and misleadingly described in the evidence, "cost overruns". It was the defence case at trial, which was advanced by cross-examination and submissions, that Mr Chamberlain was entitled to $12,800 for variations. It was not the defence case at trial or on this appeal that the account for $51,400 was genuine, nor was that suggested to the investigating police, and the Crown led uncontradicted evidence that most of the items in that account were without substance. There was a live issue at trial, however, whether Mr Chamberlain had an entitlement to claim extra payment in respect of two items said to be variations, the connection to the main sewerage system and additional paving. Included in the account for $51,400 there were claims for $12,600 for the sewerage connection and $600 for the paving. While the evidence did not directly connect these two items totalling $13,200 with the figure of $12,800, it was the defence case at trial that in respect of these items there was an entitlement to at least $12,800.
36 When interviewed by the police Mr Chamberlain referred to an exchange of cheques. He said he had given back a cheque for some $38,000 at the time he received the cheque for $51,490. He also said to the effect "mine was only for $12,000". The Shire's cheque for $51,490 was deposited by Mr Chamberlain on 19 December 1990. The evidence discloses that he drew a cheque for $38,690 dated 19 December 1990 in favour of the Shire and a receipt was issued by the Shire on that date for that amount to Mr Chamberlain. The difference between these two cheques is $12,800. The evidence provides no explanation for the cheque for $38,690 other than what might be inferred from Mr Chamberlain's comments to the police. It is the submission of the applicants, on this evidentiary basis, that the question should have been left to the jury whether Mrs Barnes and Mr Chamberlain acted in respect of counts 3 and 4 in the exercise of an honest claim of right and without intention to defraud within the meaning of s 22 of the Criminal Code.
37 There are obvious difficulties with this contention.
38 Count 3 alleged a false pretence on the Ministry relying on the account of Mr Chamberlain's firm for $51,400 for variations. It was not
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the applicants' case at trial and the evidence did not support the view that Mr Chamberlain had a claim or entitlement pursuant to the contract for variations amounting to $51,400 or any such sum or that he or Mrs Barnes believed he had any such claim.
39 Nevertheless, he prepared signed and submitted the account which Mrs Barnes then sent to the Ministry knowing, from his earlier visit with her to the Ministry, that the account would be submitted to the Ministry by Mrs Barnes. Further, the case against the applicants was that by falsely pretending to the Ministry that the account for $51,400 was for authorised variations to the contract, Mrs Barnes as principal induced the Ministry to pay to the Shire $17,163 being one third of the extra costs. The evidence at trial does not provide any foundation for the view that the Shire then had a genuine claim to $17,163 or that either of the applicant's believed that it did, or that either applicant believed that Mr Chamberlain had a claim or entitlement pursuant to the contract for variations amounting to $51,400 or $51,490 or any such sum. Mrs Barnes herself had no possible claims or entitlement to any money from the Ministry. The evidence led at trial, therefore, did not provide a factual basis on which the view was open that either applicant had an honest claim of right, or that they were acting in furtherance of a claim of right of the Shire, to the money the subject of count 3.
40 Count 4 concerned the Shire cheque for $51,490 drawn by Mrs Barnes in favour of Mr Chamberlain and banked to his firm's account. The Crown case was that Mrs Barnes used her position and authority as Acting Shire Clerk to draw and pay this cheque when she knew Chamberlain had no entitlement to be paid that sum and even though there had not been compliance with the Shire's procedures for approval of the payment. Mr Chamberlain was charged as an accessory by procuring Mrs Barnes' conduct. As has been indicated it was not the defence case that Mr Chamberlain had an entitlement to receive $51,490 from the Shire or any such sum. As a matter of law, even though it may have been contemplated that as a consequence of an exchange of cheques he would repay to the Shire $38,690 of the $51,490, it remains the case that neither Mr Chamberlain nor Mrs Barnes believed he had any lawful claim to be paid $51,490 by the Shire. It is to be noted that the bank statement of Mr Chamberlain's firm's account reveals that without the prior credit of the proceeds of the Shire's cheque for $51,490, there were not sufficient funds in the account to meet the cheque to the Shire for $38,690.
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41 There was a very live issue at trial whether Mr Chamberlain had a genuine entitlement to $12,800 or to any such sum for variations pursuant to the contract. It was submitted by the applicants on this appeal that the contract provided for a septic tank and leach drain system, not for connection to the main. There was conflicting evidence as to whether the sewerage connection was part of the works the subject of the contract. The original specifications which formed original tender documents were in evidence and these, in s 2 item B 2.4, contemplated the construction of a septic tank and leach drain system rather than a sewerage connection. However, in s 2 item D 2.9 there was a specific requirement for connection to the sewerage system by the contractor. Further, an addenda was issued to the specification which expressly provided for connection to sewer as required by the Water Authority of WA. It was the evidence that this addenda had been issued before Mr Chamberlain presented and supported his quotation at a meeting of the Council in June 1990, following which the contract was let to Mr Chamberlain.
42 There was a further contention, albeit involving some inconsistency in the applicants' submissions, that the original expectation was that a sewerage main would be run up Pollard Street, not at Mr Chamberlain's expense, to which he could make a relatively easy connection, but after the pool contract was let the Shire did not proceed with the Pollard Street main extension because of cost. This obliged Mr Chamberlain to effect a much more extensive and expensive connection over the top of a creek to another main pipe. A third version alive in the evidence was that Mr Chamberlain and his plumber, who was his son-in-law, planned to make the connection to the main on the other side of the creek by running the pipe under the creek, but Mr Chamberlain had failed to make due enquiries or had misunderstood the depth of the main to which that connection was to be made so that it became necessary to run a cast iron pipe over the top of the creek, rather than a standard pipe under the creek, because the main was not deep enough to allow a pipe under the creek. This was a far more expensive connection.
43 There was also evidence that during a site inspection by members of the Council extra paving had been proposed by Council members although this had not been confirmed in writing.
44 There was also a live issue whether Mr Chamberlain had submitted any claim in accordance with the contract procedures to be paid for these items, the sewerage connection and the paving, and whether there had been approval by the Council for the payment to Mr Chamberlain of any sum for variations above the contract price of $380,000. None of the
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evidence was capable of supporting the view that there had been formal approval by the Council. There was varying evidence of a discussion of a "cost overrun" for the sewerage connection at a meeting of the Council, or by some Councillors before or after a Council meeting. This evidence is capable of disclosing that the members of Council accepted it would be fair for the Council to meet the extra cost of this item but that was not the subject of a formal resolution. This evidence also revealed that the recollections of councillors varied between $12,000 and $20,000 as to the possible extent of this cost overrun.
45 It will be apparent from this, however, that the question whether there was an entitlement to claim or to be paid $12,800 or some such sum as a variation under the contract, and whether there had been approval by the Council to pay some such sum, or perhaps whether its members were aware of and approved some such payment, was the subject of differing evidence at the trial. There was evidence well capable of supporting the Crown's case that there was no entitlement to be paid any sum for variations and there had been no authorisation of the payment of any sum for variations. There was also evidence capable of supporting the view that Mr Chamberlain had an entitlement to be paid $12,800 or approximately that sum for variations and that he, and perhaps Mrs Barnes, understood that payment of such a sum had been sufficiently approved. These matters of fact were therefore live issues for decision by the jury. Contrary to what may be the hope or expectation of the applicants it is not open to this Court on appeal to try or re-try those matters of fact and make findings about them.
46 If it be accepted in favour of the applicants, however, for the purpose of considering this ground of appeal, that there was evidence capable of supporting the view that Mrs Barnes and Mr Chamberlain believed that Mr Chamberlain had an entitlement to receive from the Shire $12,800 for variations and that Mrs Barnes acted in the understanding that there had been a sufficient approval for that payment to be made to Mr Chamberlain by the Shire, it does not follow in the circumstances of this case that the trial Judge erred in failing to direct the jury as to honest claim of right.
47 The only explanation provided by either accused for the payment of $51,490 was Mr Chamberlain's reference to the investigating police about an exchange of cheques and that his part was $12,000. The undisputed evidence reveals that by cheque he paid $38,690 to the Shire so that, if it be accepted that the two cheques related to the one transaction, his net gain was $12,800. No other explanation is open on the evidence for either cheque and that was the defence case at trial. That being so, as the trial
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Judge noted, the only view open on the evidence was that these payments were a fraudulent subterfuge, in which both Mrs Barnes and Mr Chamberlain were knowing participants, by which it could be made to appear that the Shire had paid Mr Chamberlain the amount of the account for $51,400 so that Mrs Barnes could make the false pretence charged in count 3. By this means, between them, Mrs Barnes and Mr Chamberlain were setting the stage to enable the Shire to obtain over $17,000 from the Ministry even though they knew the Shire had no lawful entitlement or expectation to that sum at the time. By that means they were enabling Mr Chamberlain to receive $12,800 above the contract price for the swimming pool. I note that what, if anything, was intended with respect to the $4,363, which is the difference between the amount the Shire received from the Ministry and the $12,800, is not the subject of any explanation provided by either of the applicants at any stage and is not disclosed by the evidence at the trial.
48 Count 4 charges the stealing of $51,490. In this case that involved Mrs Barnes fraudulently converting that sum to Mr Chamberlain's use. Mrs Barnes had no entitlement to that sum. It is not contended that Mr Chamberlain had a genuine entitlement to that sum or for the amount of the bogus account for $51,400. As the trial Judge correctly discerned, there was no evidentiary foundation whatever for the view that either applicant acted with an honest claim of right and without intention to defraud in respect of the cheque for $51,490.
49 This ground has not been made out.
Ground 3. Burden of proof
50 His Honour's charge to the jury necessarily dealt with two onuses of proof. There was the usual onus on the Crown in a criminal trial, and the special onus on the defence which could arise in this case in respect of counts 1, 2, 5 and 6 to show that money received by Mrs Barnes from Mr Chamberlain was not given or received corruptly in contravention of Chapter LV. As indicated earlier this special onus arose by virtue of s 543 of the Criminal Code. It had no application to counts 3 and 4. This special onus on the defence was required to be satisfied on the balance of probabilities whereas the onus on the Crown required proof beyond reasonable doubt.
51 His Honour's charge to the jury dealt with all of these matters and did so clearly and correctly. He not only dealt with them as a matter of general direction but he reinforced this with specific directions as he dealt
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with each count alleged against each of the appellants and he also summarised the position again.
52 A question was addressed to his Honour by the jury which asked:
"If the items 1 and 2 are to be proven, does each element have to be proved at the balance of probability level or is it only the corruption issue which is treated at this level, element 4?"
- In this question the reference to items was clearly enough intended as a reference to counts 1 and 2, and corruption was the fourth element identified by his Honour as he charged the jury about these two offences.
53 Having said that the short answer was "yes" to the question whether only the corruption issue is treated at this level, his Honour added:
"Let me repeat, members of the jury. If in relation to those counts 1 and 2, and of course that also applies to 5 and 6, if you are having regard to the whole of the evidence, the Crown has satisfied you beyond reasonable doubt of those elements I have spoken of, then you turn to consider whether the accused Barnes and the accused Chamberlain have on the balance of probabilities satisfied you that the moneys were not received corruptly."
- The answer given by his Honour to the question correctly set out the position and appears sufficient to clarify the point raised by the jury.
54 In my view there was no reason to think that the jury were not given clear and adequate directions with respect to the onus and standard of proof, including and especially directions that no onus lay on the defence in respect of any aspect of counts 3 and 4.
55 While the directions necessarily had to deal with two standards of proof and the circumstances in which each arose that is not an unusual situation in criminal trials. It is the position, of course, in every trial where the issue of insanity is raised.
56 There has not been shown to be any merit in ground 3.
Ground 4. Unsafe and unsatisfactory verdicts
57 The approach which this Court should take to a ground of appeal that the verdict of the jury is unsafe or unsatisfactory was considered by the
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High Court in M v The Queen (1994) 181 CLR 487 where at 493 Mason CJ, Deane, Dawson and Toohey JJ said:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
- With respect to the advantage which the jury enjoyed of having seen and heard the witnesses their Honours added at 494-495:
" … where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (emphasis added)
59 To a considerable extent the appellants have approached the particulars advanced in support of this ground by seeking to re-argue the merits of factual issues as to which there was differing or conflicting
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evidence at the trial, which differences or conflicts were ventilated before the jury and as to which it was clearly within the proper role of the jury to make factual findings according to the views formed by the jury of the credibility of the witnesses and the weight of the evidence. It is not for this Court to seek to re-try those matters of factual dispute. Further, the applicants have sought in their submissions, in particular in their written submissions in reply, to introduce further matters of fact and evidence to counter Crown submissions which were based on the actual evidence at the trial. This appeal is to be determined on the basis of the evidence before the jury. Much attention has been directed by the applicants to identifying aspects of the evidence which would support findings contrary to observations made by his Honour when passing sentence. These observations were made after the jury had returned its verdicts, of course, so that they cannot have affected the verdicts. They are irrelevant, therefore, to the issue whether the verdicts are unsafe or unsatisfactory. The observations by the Judge when sentencing may have been relevant when the applications for leave to appeal against sentence were argued, but that occurred some years ago and those applications have long been dismissed. There is no justification for those observations to be brought into question again on the present applications. For these reasons the merit of many of the matters raised by the applicants will not be considered in these reasons.
60 The first particular of the ground relates to an issue which has no relevance to any element of any of the offences being tried. The contract for the construction of the swimming pool provided for a 10 per cent deposit. The contract was signed by Mr Chamberlain and the then Shire Clerk, Mr Fitzgerald, on 29 June 1990 but the deposit cheque of the Shire was dated 25 June 1990. It was not deposited, however, until 2 July 1990. In his opening the prosecutor noted that the cheque of $38,000 for the deposit was made out by Mrs Barnes on 25 June 1990 four days before the contract was signed and only a short time after the Council had resolved to grant the contract. When sentencing, the Judge noted this matter. It was submitted the prosecutor sought to portray that there was something odd about this cheque. Insofar as counsel treated it as an example of administrative anomalies in the Shire which he submitted had enabled the offences charged to be committed, that is so. But the facts relevant to the deposit cheque were clearly established in the evidence and this matter did not become a focus of attention during the evidence or closing addresses or in the Judge's charge to the jury. This matter does not provide reason for concern that the verdict may be unsafe or unsatisfactory.
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61 Secondly, it is contended there was no specific evidence that the payment of the $4,000 to Mrs Barnes, the subject of counts 1 and 2, was corrupt. The general nature of the Crown case which has been indicated earlier was clearly outlined to the jury in opening and was maintained throughout the trial. The evidence adduced by the Crown was capable of giving rise to the operation of s 543. That is, there was evidence that Mrs Barnes was an employee of the Shire, hence an "agent" of the Shire, and that without the assent of the Shire she received $4,000 paid to her by Mr Chamberlain who had business relations with the Shire. That being so, the burden was on the two applicants of proving that the $4,000 was not received by Mrs Barnes and given by Mr Chamberlain in contravention of the provisions of Chapter LV, ie in this case corruptly. While they did not give evidence themselves it was their case in this regard that the money was paid and received in respect of services provided by Mrs Barnes to Mr Chamberlain which did not relate to the Shire or the pool project.
62 There was evidence of assistance being provided to Mr Chamberlain by Mrs Barnes which was not connected with the pool project or the Shire. There was also a clear body of evidence which the jury might properly have accepted that Mrs Barnes had assisted Mr Chamberlain in connection with the pool project. It was open to the jury on the evidence to conclude that the $4,000 was wholly or in part in respect of her assistance with the pool project.
63 There is no feature of the evidence which supports the Crown case, apparent on the record, which provides reason for concern as to its probative force other than the usual issues which are properly to be weighed by the jury as they determine the credibility and probative force to be attached to each aspect of the evidence.
64 It was in this connection that during its deliberations the jury posed a question to the trial Judge -
"Items 1 and 2 on the indictment refer to an amount of $4,000. If we consider that part of this amount was given/received for reasons other than alleged, does the case fail?"
- The jury were then directed inter alia that "it would be sufficient for the Crown to prove that at least some of the $4,000 was given and received on account of the accused Barnes doing an act in relation to the affairs or business of the Shire of Boddington, namely, assisting the accused Chamberlain with the pool project."
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65 This appears to be a correct direction as it is not necessary in law that the whole of the $4,000 be paid and received corruptly to satisfy counts 1 and 2.
66 The point which appears to have led to this issue being raised is an observation in the sentencing remarks of the trial Judge that he was satisfied that at least a significant portion of the $4,000 related to assistance with the pool project. The applicants seek to point up to the distinction between "at least some of" and "a significant portion". The first, of course, was in the direction to the jury as to what the Crown must prove to establish its case and justify the jury returning the verdicts of guilty. The second notes the actual finding of fact of the trial Judge relevant to sentencing. The difference does not reveal some error or defect nor does it affect the propriety either of the jury's verdicts or the sentences passed, or provide reason to consider that the verdicts are unsafe or unsatisfactory.
67 The third particular contends with respect to count 3 that there was no evidence that the applicants, together at a meeting with an employee of the Ministry, made the false pretence alleged. This submission in part misunderstands the nature of the primary Crown case with respect to count 3. This is that Mrs Barnes made the false pretence by discussions at a meeting with Mr Allen of the Ministry and by letters and enclosures she sent to him following the meeting, the effect of these being that the Shire had paid Mr Chamberlain the amount the subject of his firm's account for $51,400 for authorised variations to the contract for the swimming pool.
68 It was the Crown's case that Mr Chamberlain was a party to the false pretence demonstrated by that evidence, or indeed was a principal offender, in particular by his provision to Mrs Barnes of the false account, following their joint visit to Mr Allen, to support the false claim he knew she was making to the Ministry.
69 On this evidence it was clearly open to the jury to be satisfied to the required standard that both applicants knew there had not been authorised variations pursuant to the contract in the sum of $51,400, and that an additional payment of that sum to Mr Chamberlain had not been approved by the Council, and that in that knowledge Mrs Barnes, by her conduct, had falsely pretended to Mr Allen that the account was for authorised variations, and that the Ministry was thereby induced to pay one-third of that sum to the Shire. It was also clearly open to the jury to find that Mr Chamberlain at least aided in this false pretence.
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70 The evidence supporting such findings was clear and comprehensive and substantially uncontradicted and there is no reason apparent from the record for concern about its probative force such as persuades me that the jury ought not to have accepted it.
71 It is further submitted that this evidence reveals that if there was a false pretence the beneficiary was the Shire, not either of the applicants. That is so. That is what count 3 alleged. It is not necessary for the person or persons making a false pretence to be the beneficiaries of their fraud. In any event it is to be noted that in this case the receipt of the proceeds of the false pretence by the Shire was the trigger for the process by which Mr Chamberlain received the $12,800.
72 There is no basis arising from this particular for concern that the convictions on count 3 were unsafe or unsatisfactory.
73 The fourth particular is one which seeks to re-agitate the factual issue that the sewerage connection was not part of the contract works and further that extra paving was required to support the view that Mr Chamberlain's firm had a legitimate claim to be paid for these two items as variations pursuant to the contract, and indeed that it was entitled to receive the $12,800 from the Shire. The submissions for the applicant have extensively canvassed the evidence relevant to these issues and have sought to refer to some additional evidentiary matters. The primary facts relating to this have been canvassed sufficiently earlier in these reasons. As has been indicated earlier there was some evidence capable of supporting the applicants' case and also evidence well capable of supporting the prosecution case so that these issues were properly raised for decision by the jury.
74 While it was the Crown case that Mr Chamberlain was not entitled to any amount above the contract sum of $380,000 at the time of both counts 3 and 4, both because the sewerage connection was part of the contract and because Mr Chamberlain had not claimed under the contract procedures for a variation for either the sewerage connection or the paving and the Council had not approved extra payment for either of them, it was not essential, however, for the Crown to establish these matters to prove counts 3 and 4. For reasons already given, even if it be accepted that Mr Chamberlain was entitled to the sum of $12,800 which was the amount of the difference between the two cheques, and if it be accepted that payment to him of $12,800 had been sufficiently approved, it does not follow that there was not a false pretence practised on the Ministry as
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alleged in count 3 or that Mrs Barnes was not guilty of theft with respect to the cheque for $51,490 as alleged in count 4.
75 Once again this issue is raised because of a sentencing finding by the trial Judge that, as a matter of contract, Mr Chamberlain had been obliged to effect the sewerage connection and it was not a variation. That is a view which was open on the evidence and it may have had its relevance to the sentence, but it is not a finding on which the conviction on either count 3 or 4 depends.
76 Subject to some observations made when considering the next particular raised in support of this ground, there is no feature of the evidence revealed from the record which provides reason for concern about the probative force of the evidence on which the convictions on counts 3 and 4 depends. This issue is not one, therefore, which gives rise to reason for concern that the verdict was unsafe or unsatisfactory.
77 It is contended by the fifth particular that the evidence did not support the conviction of Mrs Barnes for stealing $51,490 as charged in count 4. As a consequence, of course, the conviction of Mr Chamberlain on count 4 would also fall as the case against him on that count was that he procured Mrs Barnes to commit the offence. Strictly, this does not raise a particular relevant to the ground that the verdict is unsafe and unsatisfactory but as the applicants are unrepresented the merits of the conviction will be considered.
78 In part, it is contended that as Mrs Barnes didn't receive any of the $51,490 she could not be guilty of stealing it, but the short answer to such concerns is that by virtue of s 371(1) of the Criminal Code it is sufficient if the $51,490 was fraudulently converted by Mrs Barnes to the use of Mr Chamberlain.
79 Further, the applicant's contend that the evidence led at the trial was sufficient to show that all, or at least some, members of the council were aware of and accepted as reasonable Mr Chamberlain's claim that he should be paid $12,800 or some such sum for "cost overruns", and also that there was a deliberate ploy by the Council, or at least by some of the councillors and the former Shire Clerk, Mr Fitzgerald, to make an inflated claim on the Ministry for grant money for the pool.
80 It was the defence case at trial, and it is maintained on appeal, that the evidence also reveals that this led to Mr Fitzgerald, with the knowledge and approval of at least some councillors including the President, to arrange for the bogus account to be prepared by
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Mr Chamberlain with the assistance of Mr Hough the Shire's health and building surveyor, and for Mr Chamberlain to be paid by the cheque for $51,490 drawn and countersigned by Mrs Barnes, and for Mrs Barnes to submit the account to the Ministry to support a false claim for an additional grant of one third of that amount, from which Mr Chamberlain in the end received the $12,800.
81 The applicants in their submissions on appeal seek to advance that this represents the truth of what occurred. That being so, it is contended that Mrs Barnes was acting with sufficient authority and approval when, as directed, she drew and signed the cheque for $51,490 which was countersigned by two councillors and paid to Mr Chamberlain with the knowledge and approval of council, or at least of some councillors, as well as Mr Fitzgerald. Hence, the applicants submit she did not fraudulently convert the $51,490.
82 The submissions substantially seek to reagitate factual issues which were extensively pursued at trial. In these respects, however, the evidence is well capable of more than one conclusion. It is not the case that the only evidence supported the defence case, or that for some reason the jury must have or should have accepted that version or been left in reasonable doubt by it. Nor is there revealed from the record itself that there is reason for me to conclude on appeal that the evidence in support of the prosecution case lacks probative force such that in my view the jury ought to have entertained a reasonable doubt and returned a verdict of not guilty. Indeed, insofar as these matters can be assessed from the transcript of the trial, it is the evidence in support of the defence case that is significantly affected by deficiencies and weaknesses, rather than the prosecution case. It was, for example, well open to the jury to conclude from the evidence that the cheque had been signed in blank by the two councillors and they were not aware of and did not approve a payment to Mr Chamberlain, and to accept the evidence of them, and of the other members of council, including the President, and of Mr Fitzgerald and Mr Hough, that they had no knowledge of the account for $51,400, or of the cheques for $51,490 and $38,690, and that payment to Mr Chamberlain of the cheque for $51,490 had not been authorised, and that payment of $12,800 for the sewerage connection and the paving had not been approved. Much can be said about aspects of this evidence, for and against the applicants' case, but these issues were clearly strongly contested during the trial and it has not been shown that it was not open to the jury to resolve some or all of those disputed factual issues against the applicants sufficiently so to properly reach a verdict of guilty on count 4 against Mrs Barnes. This is so, as has been considered earlier in these reasons, even though she may
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have expected or intended that by the end of the transactions involved in the exchange of cheques Mr Chamberlain would have repaid to the Shire all but $12,800, and even if she acted in the understanding that Mr Chamberlain had an entitlement to be paid that sum for authorised variations and that payment had been authorised, and even if it was the case that Mr Chamberlain had such an entitlement.
83 It was also submitted that there is no evidence that it was the applicants who exchanged the cheques for $51,490 and $38,690. The applicants now seek to advance the factual view that this is because Mr Chamberlain dealt with Mr Fitzgerald, not Mrs Barnes. It is the case that there is no direct evidence as to who exchanged the cheques but it is well open as a matter of inference that it was the applicants. There is also a direct denial that Mr Fitzgerald was involved and there is other evidence contradicting this view of the facts for which the applicants now contend, eg the evidence of Mr Hough that he did not help Mr Chamberlain with the preparation of the account for $51,400 for Mr Fitzgerald and that he had no knowledge of that account.
84 The applicant's submissions on appeal suffer from the prevailing difficulty that there is little or no evidentiary support for some matters which they seek to assert, and there is evidence well capable of supporting a contrary view. Both at trial and on appeal their case suffers further from the dishonesty inherent in the defence case of the bogus account for $51,400.
85 There is one feature of the evidence, nevertheless, which might be thought to go some way toward providing reason to question whether the verdict with respect to count 4 may be unsafe and unsatisfactory. No such feature appears to affect the other three verdicts of guilty. This feature is the difference of $4,363 between the $17,163 received by the Shire from the Ministry and the $12,800 which it is contended was paid to Mr Chamberlain for the variations.
86 In the absence of any explanation in the evidence for this $4,363, which appears to have been absorbed without being noticed into the Shire's accounts, on one view that is open this is consistent with the defence case that the false pretence on the Ministry was a consequence of a scheme of the Council, or Mr Fitzgerald, to get as much money as possible out of the Ministry. This in turn is consistent with Mrs Barnes having been authorised to draw the cheque for $51,490. Having given this aspect of the evidence careful consideration, however, it appears to me to fall well short of providing reason for that degree of unease or
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- dissatisfaction with the evidence to which M v The Queen (supra) refers, such as to justify the conclusion on appeal from an evaluation of the whole of the evidence at trial, that the jury ought not to have been satisfied beyond reasonable doubt and ought not to have returned verdicts of guilty on count 4.
87 The evidentiary foundation for the defence case in the relevant respects at the least is affected by deficiencies, whereas the prosecution case has substantial support in the evidence and so far as the record can reveal the weight of the evidence appears to be well against the defence case. While adverse comment could be and was made during the trial against aspects of the evidence in support of the prosecution case, it is not apparent that, upon the record itself, the evidence contains such discrepancies or inadequacies, manifests taint or provides such reason to doubt its probative force, that there is a significant possibility that the applicants have been wrongly convicted on count 4. In my view, it was well open to the jury as the triers of fact, who had in this case the significant advantage of seeing and hearing those witnesses whose evidence contradicts the defence case, to reach verdicts of guilty on count 4 on the evidence before them.
88 I am not persuaded by an assessment of the whole of evidence at the trial that the jury ought not to have been satisfied beyond reasonable doubt of the guilt of each of the applicants on the charge of stealing.
Conclusion
89 For the reasons given none of the grounds of appeal have been made out.
90 I would grant both applicants leave to appeal but dismiss the appeals.
91 WHEELER J: I have had the advantage of reading in draft the reasons of Parker J, with which I agree. I would therefore grant leave to appeal to both applicants, but dismiss the appeal.
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