Braysich v The Queen

[2010] HCATrans 189

[2010] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P45 of 2009

B e t w e e n -

JEFFREY JOSEPH BRAYSICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 30 JULY 2010, AT 12.18 PM

Copyright in the High Court of Australia

MR G.R. DONALDSON, SC:   If your Honours please, I appear with MR S.J. LEMONIS for the applicant.  (instructed by Ainslie van Onselen – Lawyer)

MR W.B. ZICHY‑WOINARSKI, QC:   If the Court pleases, I appear with MS W.F. GILLAN for the respondent.  (instructed by Director of Public Prosecutions (Cth))

HAYNE J:   Yes, thank you.  We might be assisted first, Mr Donaldson, by hearing from the respondent in this matter.

MR DONALDSON:   If your Honour pleases.

MR ZICHY‑WOINARSKI:   If your Honour pleases.  Your Honours, in our outline of submission in paragraph 1 we have identified why special leave should not be granted.  Paragraph 1, as I say, sets out those matters.  To that should be added one further matter so far as a question of general importance and general application is concerned, that the corresponding provision is now to be found in section 1041B of the Act, and there is no defence contained within section 1041B, or any of the other provisions of the Act, in relation to section 998(6) as it then was, your Honours.

BELL J:   What of the administration of justice in this case?

MR ZICHY‑WOINARSKI:   I was going to turn to that next if I may, your Honours.  Your Honours, we take, will have received a supplementary submission that has been filed of behalf of our friends.  It does raise matters in a way that was not argued in the court below and, in particular, the issue that is particularly raised by the supplementary submission relates to the evidence given by the applicant together with other evidence which went to the question of whether there had been a change in the beneficial ownership of the shares.  That, in our submission, really advances the matter no further, and I will come to that in a moment if I may.

The case that was run below was clearly, in our submission, one where the applicant sought to run a case that the Crown could not establish the deeming provision under section 998(5) because it would not be able to establish knowledge in the applicant that he knew there was no change in the beneficial ownership.  The verdict of the jury was clearly one that accepted the Crown’s case and necessarily, therefore, rejected the applicant’s specific evidence in relation to his belief.  Without that there could have been no verdicts of guilty so far as the applicant was concerned. 

Now, that that was the real defence that was being run below, in our submission, is further demonstrated by the fact that the co‑accused at the trial, the man called Mr Scook, actually gave evidence before the applicant and, as is clear from the decision of the Court of Appeal, openly raised his subjective intention so far as his purpose in being involved in the relevant transactions was concerned and yet the applicant, when he gave evidence after Mr Scook, in no way raised that issue himself at all.

BELL J:   He did say that he did not believe the transactions were intended to create, did create, or were likely to create the relevant appearance, did he not?  That is at least the way it was summarised by Justice Buss at application book page 194 in paragraph 112.

MR ZICHY‑WOINARSKI:   Your Honour, with respect, paragraph ‑ ‑ ‑

BELL J:   Paragraph 112.  It is on page 194 of the application book.

MR ZICHY‑WOINARSKI:   Sorry, your Honour, I went to the wrong page, with respect.  What his Honour Justice Buss does in paragraph 112 is to identify, by reasons of the submissions that were made below, those matters which the applicant says went to his purpose, and he lists them out seriatim from (a) through to ‑ ‑ ‑

BELL J:   In addition to that, his Honour summarised, as I understood it, answers given by the applicant in cross‑examination in which he expressed his belief that the transactions were not intended to create the relevant impression.

MR ZICHY‑WOINARSKI:   Can I just deal with that point directly, if I may, your Honour?

BELL J:   Yes.

MR ZICHY‑WOINARSKI:   Your Honour identified the passage where it is stated in – the best way to pick it up, if I may, is in the applicant’s summary of argument in paragraph – I am just trying to pick up the passage, your Honour.

BELL J:   I think it is at paragraph 22 which is on page 254 of the application book.

MR ZICHY‑WOINARSKI:   Yes, paragraph 22.  Your Honour, that is, in our submission, an overstatement of the evidence that has been relied upon at that passage.  If one goes to – I just have to pick ‑ ‑ ‑

BELL J:   It seems to me that it mirrors the summary of the relevant evidence of Justice Buss at paragraph 112.

MR ZICHY‑WOINARSKI:   Your Honour might not have quite understood what I am saying.  That is not what his Honour is summarising the evidence at.  What his Honour is saying is:

Counsel for the appellant submitted that although the appellant did not expressly state . . . According to counsel, that, of itself, was clear evidence that that was not his purpose.  It was submitted there was other evidence to support a conclusion that, on the balance of probabilities, he did not have the proscribed purpose –

Now, their submissions ‑ ‑ ‑

BELL J:   I am sorry, is the transcript reference not to the evidence that the applicant gave?  Well, you see, in paragraph 112, after his Honour refers to the evidence said to have been given by the applicant, he gives a transcript reference.  Is that to counsel’s submission and not the evidence?

MR ZICHY‑WOINARSKI:   Yes.

BELL J:   I see.  All right, I understand.

MR ZICHY‑WOINARSKI:   The passage at paragraph 22 of the applicant’s submissions that your Honour identifies on page 254 of the application book is in fact an overstatement because the question that was asked at page 1109 of the transcript – and I know your Honours do not have it, there is a reference in the application book, but the question that was asked was simply, did he think that Mr Scook was a man who may be involved in transactions of this type?  It does not constitute and could never constitute evidence as is asserted in paragraph 22. 

Now, what his Honour Justice Buss did was he set out the submissions upon which the applicant said in the Court of Appeal you could form the purpose, and then at paragraph 125 his Honour dealt – this is on application book 199 at paragraph 125.  His Honour then deals seriatim with the exact points that he has raised in paragraph 112, which your Honour Justice Bell took me to, except for one thing.  He puts in the very first paragraph an addition where he says that:

The defence under s 998(6) may be available to an accused who denies knowledge that transactions within s 998(5)(a) involved no change in beneficial ownership.

He does not, as then is asserted by our learned friends, say it can only be raised if the accused gives evidence of his own subjective purposes.  His Honour clearly says ordinarily it would be necessary.  Then, your Honour, over the page on page 200 of the application book, his Honour then deals with each of the submissions that had been identified by the applicant as going to the question of purpose and, without reading them all, your Honour, he, in effect, rejects them all.  His conclusion can be seen on page 202 at paragraph 126 where his Honour says:

The evidence to which I have referred at [112] above is, at best, circumstantial evidence from which an inference could be drawn that at all material times the appellant was acting in the ordinary course of his business as a stock broker in carrying out the relevant transactions.  However, on the evidence as a whole in the present case, the absence of any direct evidence as to the appellant’s subjective purpose or purposes, including the absence of any direct evidence that he did not enter into or carry out the transactions for the purpose of creating a false and misleading appearance of active trading in the shares of Intrepid, was a critical omission.  In my opinion, the circumstantial evidence was not sufficient to require the learned trial judge to leave the defence under s 998(6) to the jury.

So that it has been dealt with in very full consideration by Justice Buss and he rejects completely that that evidence identified in paragraph 112 of the judgment does in any way set up even a circumstantial case so far as the question of 998(6) defence is concerned.  I said earlier that this was really very much a factual case, and your Honour Justice Bell raised with me the question of the administration of justice and we do understand that point, but what one can see here from the supplementary submission is that there has now been a substantial moving of ground so that it is now being said that the evidence that relates to purpose should have included the evidence concerning the evidence given by the applicant and other evidence that concerned whether or not there had been a change in the beneficial ownership of the shares. 

Now, all of that evidence was dealt with in the Court of Appeal, effectively, under grounds 4 and 5, and they are dealt with at great length, ground 4 being that the judge failed to adequately put the defence case.  That commences at application book 217, and ground 5, which is the unsafe or unsatisfactory ground, as it was drafted below, commences at application book page 232.  So that there has now been, as we say, a substantial attempt to change the way in which the case was presented below. 

Now, in our submission, if one has regard to the evidence relating to whether or not there had been a change in the beneficial ownership of the shares, that, as we have already submitted, had clearly been rejected by the jury, but even if one just puts that to one side, in our submission, that evidence cannot give rise to evidence of the subjective purpose of the applicant for the purposes of 998(6).

The onus was on the applicant to satisfy the jury on the balance of probabilities that none of his purposes included the prohibited purpose, and the mere fact that he had some belief with respect to whether or not there had been a change in beneficial ownership does not, in our submission, touch upon that question of his subjective purposes.  That must so, we say, in a case where he has clearly gone into the witness box and had the opportunity to give direct evidence about those matters.

HAYNE J:   Does that proposition amount to the proposition that if a person accused of this offence says, “I did not know there was or was not a relevant change of ownership”, the defence is necessarily off the table?

MR ZICHY‑WOINARSKI:   We accept Justice Buss saying that it can be open in those circumstances.

HAYNE J:   If it is open in those circumstances, is it open to an accused who takes this position of “I did not know” to adduce evidence from somebody suitably qualified who would say, “There are many reasons why one may engage in trades of this kind.  They are (a) to (zzz), I do not know what happened in this case, but these are available reasons that I know from my experience of the market.”?

MR ZICHY‑WOINARSKI:   No, your Honour, that would not be, because there would be no basis for which that evidence could be attached at that stage in the absence of positive evidence, I think in that case, from the applicant that he had no such purpose.  That evidence may be relevant if there was direct evidence or circumstantial evidence from which one could conclude that the applicant had the subjective purpose of not doing the prohibited action.  In the absence of that, the evidence from experts cannot go or provide any evidence of his subjective intention.  They can only go to the question of whether the jury may or may not accept his evidence or the relevant evidence about subjective purpose.

BELL J:   This case was being run on the basis of the deeming provision that these were washed sales.

MR ZICHY‑WOINARSKI:   Correct, your Honour.

BELL J:   And clearly the jury were satisfied that they were washed sales, there was in fact no change in the beneficial ownership, that so?

MR ZICHY‑WOINARSKI:   That must be so, your Honour.

BELL J:   Yes.  The applicant gave evidence of his belief that the person, Mr Scook, was not engaging in any colourable form of transaction.

MR ZICHY‑WOINARSKI:   Yes.

BELL J:   There was evidence that he did not stand to benefit by more than the brokerage on the individual transactions.

MR ZICHY‑WOINARSKI:   With respect, your Honour, certainly there was that benefit, but there was, additionally, other benefits.  The applicant was involved in the underwriting of the placement shares which is dealt with in the judgment, and there was a substantial number of placement shares.  There were some other benefits that could flow through to the applicant through the stockbroking firm that he was involved in.  So it is not true to say there was simply the stockbroking fees that would come from the transactions, but we would also say the mere fact that even if one limits it to the stockbroking fees, that is really, with respect, so what, in the terms of this case where you have got the deeming provision applying.

BELL J:   I suppose one answer to that might be that that is a good contention to put to the jury, but, of course, here the applicant was denied the opportunity of having the jury draw the inference from a combination of circumstances, including the relevant lack of benefit for him.

MR ZICHY‑WOINARSKI:   But, with respect, your Honour, that really comes back to the way in which the case was run by the applicant and the evidence which was there, which comes back to – I am not going to repeat myself, that is not going to help the Court by repeating it, but it is quite clear that Justice Buss considered all the relevant evidence that was identified on the applicant’s behalf and came to the conclusion, as I have taken the Court to, that there was insufficient evidence for it to be left.  There does not appear to be any difference between us and our learned friends as to the principles that are applicable.  It is simply a question of whether the principle was applied correctly in this case.  Now, unless there is some other matter that the Court wishes to raise with me at this stage, I am not sure how much more assistance I can be at this point of time.

HAYNE J:   You have said nothing specific about the decision to exclude the evidence and there are three grounds advanced.  Is there anything particular you want to say about that last ground, about the decision?

MR ZICHY‑WOINARSKI:   May I just say this, your Honour.  In reality, all three grounds are linked to the ruling about 998(6).

HAYNE J:   It seemed to me to be so.  You do not identify some severance?

MR ZICHY‑WOINARSKI:   No, the only thing we do say about the expert evidence, again, it was not the way it was run below in the Court of

Appeal.  It was more a case there had been a miscarriage of justice because we were not able to rebut Professor da Silva’s evidence, but, of course, that was a non‑issue by the time it came to the jury.  The only other matter that we do wish to briefly take the Court to, if I may, is if I may take the Court to application book 193.  There does, in the applicant’s submissions, appear to be a suggestion that the ruling of Judge Wisbey in the District Court was simply that because you gave evidence that you believed there had been a change of beneficial ownership, you cannot raise the 998(6) defence.

We say that is not quite a fair way of putting it.  If one has a look at the application book 193 where you will see Justice Buss sets out, commencing on the other page, part of the ruling and the very last paragraph which is set out before paragraph 107 you will see that Judge Wisbey clearly came to the view that on evidence in the case, the totality of the evidence in the case, the jury would not be entitled to infer another purpose so far as the totality of the evidence is concerned.  That is the only other matter at this stage, given my time is up, your Honours.

HAYNE J:   Yes, thank you.  Mr Donaldson, we are minded that there be a grant in this matter.  Can I direct your attention to your draft notice of appeal and, in particular, the relief that you would seek.

MR DONALDSON:   Yes.

HAYNE J:   You seek quashing of the conviction and no retrial ordered.  You do not seek directed entry of a verdict of acquittal, and at least my instant reaction was that that would not seem to be open to you.  You may, perhaps, have to give some consideration to the expression of the relief which you seek in the matter.  But I take it that your grounds are stated in a form which you regard as adequate to your purposes, are they?

MR DONALDSON:   Yes, your Honour.  It might be appropriate to tinker with them a little before the matter comes on for hearing.

HAYNE J:   Well, if only to correct spelling errors.

MR DONALDSON:   Yes.

HAYNE J:   How long do you estimate the case would take?

MR DONALDSON:   Certainly no more than a day, your Honour.

HAYNE J:   I suspect somewhat less than a day, do you not?

MR DONALDSON:   I think it could be dealt with in half, your Honour.

HAYNE J:   Half to three‑quarters, yes.  Mr Zichy‑Woinarski, do you think half to a three‑quarter day?

MR ZICHY‑WOINARSKI:   I must say, I had half a day in my mind, your Honours, so we would not disagree with that.

HAYNE J:   There will be a grant of special leave to appeal in this matter.  Whether the matter can be taken in a sittings of the Court in Perth is something yet to be determined, but counsel should order their affairs on the assumption that that is at least a real possibility.

AT 12.41 PM THE MATTER WAS CONDLUDED