Briggs v The Queen

No judgment structure available for this case.

~

~ ;;~~~

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Perth No P4 of 1988
B e t w e e n -
PETER BRIGGS
Applicant

and
THE QUEEN
Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J

Briggs
DEANE J
TOOHEY J
GAUDRON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 10 FEBRUARY 1989, AT 10.20 AM
Copyright in the High Court of Australia

C2T3/l/SH 1 10/2/89

MR M. McCUSKER, QC:

May it please the Court, I appear with

my learned friend, MR H. McLERNON, for the applicant.
(instructed by Robinson Cox)

MR R.J. DAVIES, QC: If the Court pleases, with

Mr S.D. HALL, I represent the Crown in this matter.
(instructed by Director of Public Prosecutions).

MR M. McCUSKER:

May it please the Court, this is an application

for special leave to appeal against a decision of the
Court of Criminal Appeal of Western Australia which
dismissed an appeal unanimously by the applicant from
his conviction for conspiracy to defraud the Commonwealth.
The indictment appears in volume 1, page 1. It is dated 4 May 1987. Perhaps by way of explanation, there was an earlier indictment which laid two charges
but that was later replaced by the one which appears
in the appeal book.

Particulars of the overt acts on which the prosecution relied appear at page 30 through to, I
think, page 101. As Your Honours will see, there are

many of them. Most, I think the overwhelming majority,
were the subject of admissions at the trial. There
was a trial which took place in May 1987, commenced
then and was aborted after approximately five weeks

and a second trial commenced in September 1987 and
concluded in December 1987 when the applicant was
convicted and sentenced to a term of imprisonment of
18 months with eight months minimum.

(Continued on page 3)

C2T3/2/SH	2	10/2/89
Briggs

MR McCUSKER (continuing): There was an appeal immediately brought

before the Court of Criminal Appeal, an application
for bail, but that application was refused, from which

Your Honours will have deduced that the applicant has,
in fact, now served the term of imprisonment, the

minimum term, and has been released. In view of that,
Your Honours, perhaps I could just mention that in
volume II at page 368, where the orders sought - or following
page 368 which is the application for special leave -
the orders which are sought or proposed on the special
leave application are that the conviction be quashed
and that there be a new trial. In view of what has
transpired since the application was first made, we
will be pressing upon Your Honours that if the
application for special leave is allowed and the appeal
allowed, that there be not a new trial but the
conviction simply be quashed with no order for a new
trial, which would seem, in the circumstances perhaps

pointless. However, I say that by way of preface.
Your Honours, the facts in this matter are summarized

in volume II at pages 247 to 258. Their Honours commence about half-way down page 247 to refer to:
in the judgment of Mr Justice Wallace and

some details concerning the trial.

P...nd after some ex pl.anatory detail, at page 250 and following, Their Honours set out the Crown case and
the various facts, evidence of which was adduced in
the trial. At some stage in the course of the trial
mention was made of ''bottom of the harbour" - - -

MASON CJ:	Now, you can take it, Mr Mccusker, that we have read
the relevant passage in the judgment which sets out the facts.

(Continued on page 4)

C2T4/l/VH	3	10/2/89
Briggs

MR McCUSKER: Thank you, Your Honour. I mentioned
that there was some mention in the course of
the trial, inadvertently perhaps, of "bottom of
the harbour", as the phrase was sometimes used
in application to certain types of taxation
avoidance matters. This was different in an
important respect from what are commonly
referred to as "bottom of the harbour cases" in
that there was no dumping of the companies
in the sense in which that term was applied.
In the applicant's case, Briggs, he became,

together with his wife on many occasions, a
director of the companies which were acquired
and returns were prepared in respect of both
the COMPANIES ACT and also the TAXATION ACT

in relation to those companies. I will .adumbrated
a little further on those important differences.

Unlike WILDE's case, this is not a

case where the Court of Criminal Appeal upheld
the essential ground of appeal but then applied

the proviso. The judgments of Their Honours
Justices Wallace and Olney failed to uphold any
of the grounds but did criticize, I think it is
fair to say, the learned trial judge's direction
regarding the onus and standard of proof. That
criticism appears at pages 305 to 307 in
volume II of the appeal book. At page 305
Their Honours observed, about one-third of the way down the page, having quoted part of the learned
trial judge's direction to the jury:
Whilst at first sight it might be said, and
is said, that his Honour reversed the onus
in his reference to "any reasonable
hypothesis consistent with innocence",
these words cannot be taken out of their
context, which quite clearly and correctly
contained a direction consistent with PLOMP.

Towards the foot of the page: Despite the same criticism that may be
directed at the use of the words "any
reasonable hypothesis consistent with
innocence" it is clear that on this occasion
the judge immediately corrected himself.
(Continued on page 5)

C2T5/l/JM 4 10/2/89
Briggs
MR McCUSKER (continuing): At page 306 towards the foot of the
page Their Honours referred to a redirection which
the learned trial judge was asked to give with
respect to tI:ie standard and onus of proof and commented:
The redirection, insofar as it was to provide
assistance to the jury, leaves a great deal to
be desired.

He went on to explain why. And at page 307, half-way
down the page, he further said in the second paragraph
that:
the final sentence of the redirection is
open to criticism in that it equates an
inference which 'points to the guilt of
the accused' with one which is not consistent
with innocence. This may have suggested to
the jury that it was their duty to make a
positive enquiry as to innocence rather than
to be satisfied beyond reasonable doubt as to
the guilt of the accused.

Their Honours, apparently, in expiation of that
criticism said:
There were however some aspects of the judge's
charge which were unduly harsh on the

prosecution - ·

and proceeded to explain why that was so. Essentially,
Their Honours appear to have taken the view that the
case, though described by His Honour as a circumstantial
case, was one of where there was direct evidence of
the matter in issue.

(Continued on page 6)

C2T6/l/BR 5 10/2/89
Briggs

MR McCUSKER (continuing): With respect, that was a wrong

view. Both the prosecution and the defence were of
the same view in that it was clearly a circumstantial
case. Although there was direct evidence of the fact
on which the prosecution relied in order for the
inference to be drawn, which they sought to be
drawn, there was no direct evidence of the
conspiratorial agreement as such.
At page 317, again in their joint reasons,

Their Honours said, under the heading
"Conclusion":
The comments made in dealing with ground 23
of Briggs' appeal acknowledge that there are
inadequacies in his Honour's charge in
relation to some aspects of his directions
dealing with the onus of proof but apart
from that matter neither appellant has made

good any of the grounds of appeal. So far
as ground 23 is concerned we are of the firm opinion that despite the degree of confusion demonstrated in the charge, the jury was not
left unaware of the overriding obligation
of the Crown to establish every element of
its case beyond reasonable doubt nor can it
be said that as a result of the judge's
directions the verdict is unsatisfactory
or unsafe.

Their Honours however, went on to say-_that lest it be
thought that they were in error in the view that they
took as to the significance of the confusion
inherent or contained in the learned trial judge's
directions as to onus of proof, they would in any
event have applied the proviso.
His Honour Mr Justice Kennedy upheld some of

the grounds. He said that the directions were
inadequate in a number of respects and this appears
at page 365 towards the foot of the page.

take Your Honours a little later to the respects I will
in which he said that they were inadequate, but
in -summary he said:

(Continued on page 7)

C2T7/l/HS 6 10/2/89
Briggs
MR McCUSKER (continuing):
As I have indicated in the course of these reasons, I am of the view that, in
a number of respects, his Honour's charge
to the jury was less than adequate, and
a question as to the exercise by the Court
of its power under the proviso ..... must
therefore arise.
So His Honour Mr Justice Kennedy was of the view
that this was a case which called for consideration
of the exercise of the proviso.
His Honour then considered the application

of the proviso and though not without some
misgivings thought the case one appropriate for

the application of the proviso. The applicant's
submission is that in this regard in relation to the joint judgment of Justices Wallace and
Olney, Justice Kennedy was right in the view
that he took, this is, that the directions were
inadequate and such as to give rise to a consideration
of the proviso failing the application of which
the appeal should have been upheld.
It is further submitted, in relation to

their joint judgmen~ that the inadequacies were
not such as could be redressed by pointing to
a perceived harshness, as Their Honours did,
within the learned trial judge's directions on
the prosecution with respect to some aspects

of the case. That was, as it were, put by
Their Honours, with respect, in terms of a balance
and the submission of the applicant is that in
that sense, that is, balancing harshness on the
prosecution against inadequacies in important
respects of the directions, particularly concerning onus of proof, that kind of balance is not tenable.

failed to take into account, that is. they failed Further, it is submitted that they wrongly to uphold other grounds with respect to important
matters s~ch as failure to direct the jury as
to the issues for their determination and admission

of what will be submitted were clearly irrelevant

and pre j u d i c i a 1 ma t t er s not re 1 e van t to the issues.

MASON CJ:

You have given us a conspectus of the matters that you want to raise by way of appeal.

You
first have to satisfy us that you should get
special leave to appeal.

C2T8/l/ND 7 10/2/89
Briggs

MR McCUSKER:	Yes, Your Honour.
MASON CJ:	Now would you direct your attention to the matters

that you say should attract the grant of special
leave to appeal, in particular, matters of principle
that would attract a grant of special leave?

MR McCUSKER:

Yes, Your Honour.

First, as a matter of principle,

it is submitted that no application of the proviso
is appropriate where a judge's direction is
perceived to be inadequate and confusing on the

question of onus and standard of proof. Second,
that if that be wrong then the inadequacy in that
regard cannot be viewed as being redressed or
balanced by a perceived harshness contained within
the judge's direction against the prosecution which was the view taken by Their Honours Justices Wallace and Olney. Third, inaI1 important respect the
question of the essential ingredients in a charge
of conspiracy to defraud fall for consideration
by this Court because it is submitted, with respect,
that the judgments of Their Honours in the Court
of Criminal Appeal all betrayed a fundamental
misconception of what is meant by the term nhonesty"
which is so often used when defining"conspiracy
to defraud" or ,rdefraud'~.
On that latter point, it· is submitted, that this is a matter which has not hitherto received the direct attention of this Court, the question of what the term "honesty" or "dishonesty", the
counterpart, means in relation to such a charge.

BRENNAN J:

What is the suggestion as to its meaning?

MR McCUSKER:

The submission of the applicant, Your Honours - and it is a fairly simple proposition - that where

there is a charge of conspiracy to defraud the
honesty or dishonesty is related to a state of mind
or belief of the accused so that in relation

So that when it is said that a conspiracy or a to the property the subject of the deprivation.

defrauding involves a deprivation by dishonesty

the dishonesty is directed to a knowledge or belief
that the property being deprived is being unlawfully

or wrongfully deprived.

(Continued on page 9)

C2T9/l/MB	8
Briggs

MR McCUSKER (continuing): Put it in the context of this case,

the simple question was, in our submission, whether
or not the accused when he made the alleged
conspiratorial agreement, knew or believed that the

companies would have a taxation liability. They
had no such liability at the time that they were required

but they had a potential taxation liability. So
the question was whether he knew or believed that
they would have such a liability and his agreement
was directed towards ensuring that the cormnissioner
would not be paid the amount of taxation which would
become due to him.

GAUDRON J:

Mr Mccusker, how does that third point really arise

in this case because there is no doubt that the trial
judge directed that if there was any reasonable doubt
that your client believed that there would be no
taxation liability, then he should be acquitted?

MR McCUSKER:

Your Honour, that gives rise to what we say is

a further special leave point.

GAUDRON J: Well, does it not go directly to your honest point

because - - -

MR McCUSKER:

No, Your Honour, with respect. If I could explain

why: the learned trial judge, in our submission, clearly

did not so direct, although he was asked to do so. He
quoted at the end of his directions to the jury from
defence counsel's closing remarks to the jury which,

indeed, did contain that proposition. He quoted from
them without comment and, furthermore, attempted
wrongly, with respect, to sunnnarize the crux, as he

put it, of what was being put. I say the summary
itself was incorrect and in itself tended to reverse
the onus of proof but, Your Honour, in the context of
a trial where this issue had been hotly debated, for
His Honour to have simply quoted from defence counsel's
proposition and left it at that was not good enough
and that is the proposition we advance as a further

special leave point; whether it is sufficient to
simply quote from defence counsel's submission.
(Continued on page 10)

C2T10/l/SH	9	10/2/89
Briggs

GAUDRON J: Well, so far as he did, His Honour seems to
have left an aspect of dishonesty more favourable
to the defence than would be left by application,
say, of KAMARA.

MR McCUSKER: We would not accept that, with resriect,
Your Honour, but the "so far as he did' really begs the question: is it sufficient as a
direction to the jury to simply quote from
what defence counsel said? It was certainly
not perceived to be so in the context of that
trial and, as Your Honour would have seen,
after the jury had retired His Honour was
specifically asked to not leave it at that,
but to direct the jury as to the result of
their not being satisfied beyond reasonable
doubt that Briggs had no belief, that the applicant
had no belief that the companies would be
lawfully treated so as to cease to have a taxation
liability. So the matter was put to him, asking
him to direct the jury and put his weight behind

what was simply a quotation. As it was put to
the learned trial judge, to leave it on that
basis with the jury, without telling them that that was correct, in the context of that trial
and having regard to the other directions where he was summarizing the various propositions and
counter propositions., was not of itself a direction
at all.

GAUDRON J: The pr9blem is, of course, it may not be correct as
a matter GYf law.

MR McCUSKER: Well, it may not, Your Honour, but perhaps
even if one takes a step back from the proposition
advanced for the applicant on the question of
honesty, His Honour left it very much at large.
Coming back - - -

BRENNAN J: Mr Mccusker, that was not the view that was

taken of that direction by the Court of Criminal
Appeal, was it?

MR McCUSKER: No, it was not, Your Honour.
BRENNAN J: Well then the question of special leave that is being raised is whether on the view of that
direction taken by the Court of Criminal Appeal
the direction was erroneous or not.
(Continued on page 11)

C2Tll/l/JM 10 10/2/89
Briggs

MR McCUSKER:

The question is whether - it is a matter of law,

in my respectful submission - where the view taken
by the Court of Criminal Appeal was that it was
sufficient to simply leave the jury with a quotation
from defence counsel's closing submissions.

BRENNAN J:

Does that give full effect to what Their Honours said?

Did they not distinuish the cases in which the trial
judge has simply quoted counsel's submission in the
present case?

MR McCUSKER:	I think not, Your Honour.
BRENNAN J: Well then,	no doubt in due course you will take us

to it.

MR McCUSKER:

If I could take Your Honour perhaps to that in due

course. But this question of honesty raises another
issue, quite apart from the question of whether
His Honour correctly directed or directed the jury
at all in relevant terms on the question of honesty.
It was seen by the learned trial judge - this question
of honesty was perceived by him - to raise other
questions not directed to a belief as to whether or
not there was going to be a tax liability or perhaps
a clear risk that there was going to be a taxation
liability. His Honour saw it, as indeed the prosecution
clearly saw it, as allowing the prosecution to
introduce evidence of dishonesty in the course of
acquisition of these companies and two issues in
particular were introduced into the trial which
occupied a great deal of both time and argument.
The first of those issues was the question of

whether the method of acquisition involved a breach
of what was then section 67 of ~COMPANIES ACT,
the prohibition, of course, against a company using
its funds for the purpose of enabling shares in that
company to be acquired. Now, the means by which the shares were acquired was described, I think, fairly, as a round robin. It involved, according to the

defence contention, a "daylight overdraft facility"
from the bank. According to the prosecution contention,
it was not a "daylight overdraft facility."
(Continued on page 12)

C2Tl2/l/VH	11	10/2/89
Briggs

MR McCUSKER (continuing): Whichever contention was correct
is irrelevant focthe present issue. The real
problem was in the trial that this was perceived
by the prosecution to enable it to contend before
the jury, as it did, that the accused had committed
a series of breaches of section 67 of the COMPANIES

ACT and that was referred to, both in opening and
closing, as an element of dishonest conduct on which
the jury could rely for the purpose of determining
whether or not there had been a conspiracy to

defraud. In our submission, the introduction of
that issue was the introduction of an irrelevant
and prejudicial issue which the jury had placed
before it with the direction from the learned trial
judge, a repreated direction, that the question
of whether section 67 of the COMPANIES ACT had
been breached was an issue for their determination.
What the trial judge did not explain was how,

if they determine that issue favourably or
unfavourably for or against the accused, they were

then to use such a determination. The second issue
which was introduced and was introduced on the
basis of identical reasoning, that is directed towards
the question of honesty or dishonesty, was whether
or not Briggs, the applicant, had acquired and/or
had used without lawful authority a company called

W.F. Services Pty Limited; Now, there was no
question, it was common ground that that company
was a company which was used for the purpose of
acquisitions of companies in the 1978 year.

DEANE J: Mr Mccusker, we are trying to identify here
whether there is any point which would attract
leave.

MR McCUSKER: Yes, Your Honour.

DEANE J: Can you not point to statements in the judgments
in the Court of Criminal Appeal which you say are

wrong in a way which raises a question of special leave? I would have thought it would only take a
couple of minutes to explain to me the points of

general importance involved. At present you have not
done that, as far as I am concerned.

MR McCUSKER: Your Honour, I will take Your Honour to those
statements but they are something lengthy in relation
to section 67 and the W.F. Services issue and what
I was attempting to do, and obviously not well - I am
sorry for that - is to explain why the question of
honesty in relation to conspiracy to defraud is
an important question for this Court to determine
and to illustrate the importance by reference to the
line of reasoning adopted by the trial judge and

the Court of Criminal Appeal. The Court of Criminal
Appeal considered that dishonesty in the context
of a definition of conspiracy to defraud entitled

C2Tl3/l/HS 12 10/2/89
Briggs
the prosecution to introduce evidence of other
dishonest conduct, that other dishonest conduct
being, it was alleged, breaches of section 67 and
unauthorized use of a company.

DEANE J:

I still do not follow why that indicates a mistake in defining honesty.

It may be a mistake in terms
of admissible evidence, but I mean can you not point
us to the definition of honesty which you say is
wrong and identify precisely why you say it is wrong?

MR McCUSKER:

I will endeavour to do so, Your Honour. It 1s a bit out of sequence, but I will certainly - - -

DEANE J: I am not trying to take you out of sequence.

MR McCUSKER: No, I understand that.

DEANE J: I am just trying to help you identify a problem
I have.

MR McCUSKER: My problem at the moment, Your Honour, is being
readily able to come to that passage, but I
certainly will do so.

DEANE J: Well, you deal with it your way.

MR McCUSKER: If I could explain just a little further,
that the essential point which we say is a special
leave point relates to the question of what is meant
by dishonesty in the definition of conspiracy to
defraud, and that here we say the approach which
was taken was to see any dishonest conduct engaged in in the course of the alleged conspiracy or the agreement as constituting evidence of dishonesty for the
purpose of establishing conspiracy to defraud and
the applicant's proposition is that that is a
misconception of what is meant by dishonesty in
this context and that dishonesty is directed, or
should be directed and directed only to the question

of whether there was a knowledge or belief that the
deprivation or proposed deprivation would be
unlawful, that is a deprivation of property to
which the commissioner was, or would be, entitled.
Your Honours, the grounds appear at page 413.

(Continued on page 14)

C2Tl3/2/HS 13 10/2/89
Briggs

MASON CJ: We have three special leave points that you are
putting forward.

MR McCUSKER: They are the main special leave points,
Your Honour. There are others. There is the special
leave point directed to the question of the failure
of the prosecution to give particulars of the divers
other persons.

MASON CJ: How can that really be a special leave point,
Mr Mccusker?

MR McCUSKER:
Your Honour, it is a matter which is frequently
the cause of problems and difficulty in prosecutions
of this nature, to include the words
"divers other persons" and to speci.fy a very broad
period of time over which it is alleged that the
conspiracy occurred.

MASON CJ: But did not the prosecution make clear throughout
this trial that it was not asserting as part of its
case that there were other parties to the conspiracy
apart from the two accused?

MR McCUSKER: No, Your Honour, it did not, with respect. The
prosecution asserted that the jury was asked to find
that both of the accused were party to the conspiracy
but it refused to delete from the indictment the words
"and divers other persons". And then at the end of
the trial, in the course of the sunnning up by the
prosecutor who had the last word, advantage was taken
of the retention of the description "divers other
persons" by addressing the jury in terms which
implied that various witnesses who had given evidence
for the prosecution might be viewed as falling within
the category of conspirators. And our submission is
that used in that way, the use of the tag "divers
other persons" is unfair and resulted in unfairness

in the trial itself. So our submission, Your Honour,

is that - -

GAUDRON J: I wonder how that can be if most of the overt acts
were admitted?

MR McCUSKER: It still leaves, Your Honour, the question of
whether - the overt acts were of a fairly mundane
nature in the sense that they were acts which were
procedural, the signing and filing of forms and so on,
matters of that nature for the main, and that does not
of itself assist the prosecution - or it does not
entitle the prosecution, at least, to refer to various
witnesses at the end of the trial as being witnesses -
implied I should say rather than expressly - refer to
them as witnesses whom the jury might regard as
co-conspirators.
This matter was raised at the outset on an

application for particulars. Particulars were refused.

C2T14/1/BR 14 10/2/89
Briggs
In the course of the trial the point was raised again
seeking that the Crown either particularize the
"divers other persons" or else delete that term from

the indictment. The Crown refused to do either.
At the end of the prosecution case the application was again made and refused that the particulars be
given or the indictment be amended. In our
submission, Your Honours, at the very outset of the
trial the learned prosecutor responded to the
application for particulars by saying that it may
emerge in the course of the trial that there were
others and in that case the indictment could be
amended.
So the prosecution certainly did not, with

respect, simply say that it was a conspiracy

between these two and no others. The prosecution

was keeping its options open and at the end took
unfair advantage of that tag to enable it to invite
the jury to consider that there were others.

(Continued on page 16)

C2Tl4/2/BR	15	10/2/89
Briggs

BRENNAN J: What is the ambiguity or uncertainty in the
prosecution case which particulars were designed
to avoid or cure?

MR McCUSKER: In respect of the divers other persons point,
Your Honour, as to simply between whom the
conspiracy was alleged to have taken place - - -

BRENNAN J: The allegation was that it was between the
two accused and, query, other people.

MR McCUSKER: And that query raises the ambiguity. The
prosecution asserts a conspiratorial agreement
and the submission is that an agreement between
A, Band C is a different agreement from that
between A and B. Even though the purpose of each
of those two agreements may be the same they
are still different agreements. The further
ambiguity involved is the ambiguity in time here. the net wide, over a period of time, it should
not be forgotten that here there were two separate
so-called treatments of these companies; one

in 1978 and one in 1979. And the questions was:
when is it alleged that the agreement took place?
Was it an agreement that occurred in 1978 or was it one that occurred in 1979?
If it was one that occurred in 1979, then,

of course, the events prior to it could not be
relied upon as overt acts, it was, indeed, the
events prior to it may have pointed to some other

agreement. Those two matters, in our submission,
resulted in the approach of the prosecution in
a charge which has been aptly described as
amorphous, in any event, being more amorphous
than was necessary and to the prejudice to this
advantage of the applicant.

Your Honours, in terms of the special points, at page 372, and following, that being the affidavit
which contains - in support of the application
for special leave, the various grounds relied
upon by the applicant are referred to, an explanation
is given and the propositions relied on by the
applicants as being special leave points are
summarized.

(Continuing on page 17)

C2T15/l/ND 16 10/2/89
Briggs

MASON CJ:	But these are not all special leave points surely, are they, Mr Mccusker? They take up all the grounds
that were argued in the Court of Criminal Appeal?
MR McCUSKER:	In our submission, with respect, yes, they are.

Each one of them taken individually, we would

submit, is a special leave point. We would further
say that the cumulative effect of these matters,
if these matters are - or, indeed, even a portion
of these matters - are correctly described as defects
in trial process should be viewed as such as to
negate the operation of application of the proviso
and that is - I hestitate to say it - but yet a
further special leave point and, that is, whether
the Court of Criminal Appeal has correctly applied
the proviso in this case.

DEANE J:

Well, now, what you say highlights the absolute

necessity in this case for you to precisely identify
the nature of what you say are special leave points
and to take great care not to em.bark the Court
into a morass of detail before we are able to look
at whether the case does raise some and, if so,
which points which are appropriate for special leave?
I mean, otherwise we could here for two or three days before we really understand the precise nature of what you say are the special leave points.

MR McCUSKER:

Could I take Your Honours then to grounds 4, 5 and 7 at page 414.

(Continued on page 18)

C2Tl6/l/MB	17
Briggs
MR McCUSKER (continuing):	I think they may conveniently be

read together but, in particular, ground 5 is the
ground on which we place great emphasis. Now,

Your Honour, dealing with ground 5, if I could
take Your Honour, first, to the trial judge's

directions. They appeared at page 146 to 148

where, as I have already mentioned to Justice Gaudron, His Honour simply read part of the defence submissions
but then failed to direct the jury either whether that

was correct in law or, if not, what was correct in
law in terms of the question of belief.

GAUDRON J: You did not want him to do that, Mr Mccusker,

did you, surely?

MR McCUSKER:

Yes, Your Honour, most certainly.

GAUDRON J: Well, a little later the Crown put to the trial

judge that the defence you were putting was not
a defence to the claim.

MR McCUSKER:

That is so.

GAUDRON J: Yes.

MR McCUSKER:

A proposition with which, as I apprehend it, the

Court of Criminal Appeal disagreed.

GAUDRON J: Well, I am not too sure about that but what

precisely did you ask for by way of further direction?

MR McCUSKER:

That His Honour direct the jury that - in fact,

it appears at page 161, half-way down that page.
His Honour was asked to direct the jury that:
If they are not satisfied beyond reasonable
doubt that Mr Briggs did not believe that
there would be a treatment and tax liability

would be removed, then they must acquit.

That was what was being sought. His Honour
Mr Justice Kennedy in his reasons at page 351 agreed
with the conclusion of Justices Wallace and Olney: That the charge -
given -
should not be regarded as being deficient,
as contended in this ground, for the reason
that the jury would have understood that
the learned trial judge was adopting the terms
of the defence submission.
Now, implicit in that - I will come to where he

expressly agreed - of course, is

C2Tl7/l/SH	18	10/2/89
Briggs

the view that the defence submission was a correct
statement of the law and that it was sufficiently
put to the jury by simply quoting from the defence
statement.

GAUDRON J: Well, in this Court, do you have to make out that

it is a correct statement - that the defence position
is a correct statement of the law?

MR McCUSKER:

Well, if that were in dispute, Your Honour. At

this state, we are approaching it on the basis that
the Court of Criminal Appeal has taken the view that
it is a correct statement of the law.

BRENNAN J: And being a correct statement of the law, was it

put to the jury by the trial judge?

MR McCUSKER:

No, Your Honour.

We say that, quite clearly,

the learned trial judge did not put it to the jury.

BRENNAN J: Perhaps it is a

question of the construction of

what he said but the view that was taken in the
Court of Criminal Appeal was that it was put to the
jury by the trial judge.

MR McCUSKER:

Yes, Your Honour, but that is not a view which

is simply a scrutiny of the facts, as it were,that is -
if one puts it in terms of construction, it is simply
still a question of law and the short point is whether
or not it is sufficient for the judge to simply quote
from defence counsel's submission.

BRENNAN J: Well, that is why I asked you earlier was it not the

fact that the Court of Criminal Appeal distinguished
the cases where judges simply put defence counsel's
submission ~nd to not adopt it and the present case
where they took the trial judge who had adopted the
submission.

(Continued on page 20)

C2Tl7/2/SH	19	10/2/89
Briggs

MR McCUSKER: In that sense, yes, Your Honour, they did
seek to distinguish it, but - - -

BRENNAN J: So the special leave point - - -

MR McCUSKER: Is whether there is any distinction.

BRENNAN J: The special leave point is whether, if that
is what the trial judge did as the Court of
Criminal Appeal said he did, bears any error
of law.

MR McCUSKER: The error of law, we say, Your Honour, lies
with the Court of Criminal Appeal's construction
of what the trial judge did as being a sufficient
direction, that is, did the trial judge give,
as has sometimes been said, a direction to the
jury which put his own weight, the weight of his
own authority behind the direction.

BRENNAN J: That requires us then to look at what was said
by the trial judge?

MR McCUSKER: It does, Your Honour.

BRENNAN J: And to construe it?

MR McCUSKER: That is so, Your Honour.
BRENNAN J: Is that a special leave point?

MR McCUSKER: Yes, our submission is that it is. For a
trial judge in a trial where there are competing
propositions to simply refer to the competing
propositions, refer even to one of the competing
propositions without comment is, in our submission,
insufficient particularly in a case where the
particular point is crucial. That really is the
essential point: the relevance of the belief or
intention because it goes directly to purpose

and to leave it on the basis the trial judge
did of quoting and saying nothing about what was
quoted is not a direction and we would say that
that is a special leave point. This Court should
make it quite clear that that approach to a
direction to the jury on an important question of
law is inadequate.

Justice Kennedy, still at page 351,

expressed his disquiet, about two-thirds of
the way down the page~
at the lack of clarity in the direction as to
significance of any belief on the part of
Brigg£ -

and concluded that the charge fell -

C2Tl8/l/JM 20 10/2/89
Briggs
rather short of what was required in this
case.
Going back to a point made earlier by
Justice Gaudron, at page 339 Mr Justice Kennedy
referred to the way in which His Honour had
dealt with this matter and said:
His Honour's sunrrnary statement of the
"thurst of the defence of Briggs" has

caused me some concern. Mr McCusker's
submission had been that, if the jury
were not satisfied beyond reasonable doubt
that Briggs did not have the belief that
Cornelius would in some manner remove the tax liability of the companies, then they

should acquit. His Honour, in his sunrrnary
statement of the defence case, failed to point
out that it raised a defence which the Crown
had to negative and that if, ultimately, the
jury were left with a reasonable doubt, it
was their duty to acquit.

So despite His Honour's, with respect, correct observations as to the inadequacy of that approach,
His Honour nevertheless at the end of the day
trought - or held that there was. a sufficient direction
given merely by quoting from defence counsel's
closing remarks on the basis that the jury would
have thought that by so quoting the judge was
adopting those remarks. There are two problems

with that approach. The first is that merely
to quote from defence counsel's remarks can
rarely be a sufficient direction because it
simply fails to put the trial judge's weight
behind it, particularly in a case where it is

on an important, indeed central issue. The second
is that in this particular case not only did the
trial judge merely quote, he went further and
stated incorrectly what he perceived to be the

thrust of it and even there failed to put a
direction to the jury as to whether that was
correct or not.
His Honour went on to say:
Briggs, however, does not appeal upon this
ground -

With respect, there was an appeal on that ground
because the whole question of the trial judge's
direction was thoroughly canvassed and that point
in particular was raised -

C2Tl8/2/JM 21 10/2/89

Briggs (Continued on page 21A)
although Mr Mccusker made some reference in
argument to the unsatisfactory nature of
the way in which his Honour summarised the

defence. In the end, I have concluded
that, his Honour's observation, following as
it did immediately upon the reading of the
passage, would not have been understood by
the jury as derogating from Mr McCusker's
entirely correct approach to his clients'
defence, expressed in terms of the onus and
standard of proof.

(Continued on page 22)

C2Tl8/3/JM 21A Mr McCUSKER, QC 10/2/89
Briggs

MR McCUSKER (continuing): In our submission, Justice Kennedy

was right in the view that he took, that it was a defence that was referred to, which the Crown had

to negative, but with great respect, wrong in saying that it was sufficient to assume that the jury would
have accepted that the quoted remarks were remarks
which the trial judge was endorsing, particularly
where the trial judge had said what he understood
to be the thrust of the defence and incorrectly
stated the thrust of it.

GAUDRON J:

I must say, it is probably not relevant, but I am

lost at that point; that it was a defence that the

Crown had to negative. Does it not simply go to
vm.ether or not the_ question of dishonesty has been made
out? Whether or not they are satisfied beyond
reasonable doubt as to dishonesty?

MR McCUSKER:	The dishonesty in terms of - the difficulty - - -
GAUDRON J: It is not an	honest claim of right type defence,

is it?

MR McCUSKER:

It is very close to that, Your Honour.

GAUDRON J: Is it?

MR McCUSKER:

Yes, but it is one which the - the Crown proposition

was - - -

GAUDRON J: It could go to two things: it could either to the

existence of the dishonesty or it could go to the
agreement to defraud, but it does not seem to me it
is like the situation where, for example, a conspiracy
to trespass, and the defence is, "I thought I had a right
to be there."

MR McCUSKER: Well, if one could take that parallel, a conspiracy

to trespass,.:" if the facts relied on by the prosecution
were that the accused person went on to - or both

accused went on to property which was not theirs

and they were the bare facts adduced, the Crown would
ask the jury to infer that there had been a prior
agreement to trespass.

DEANE J:

It is a bit like saying that Mr Micawber could never

be guilty of a conspiracy to defraud, is it noty because at the
back of his mind there would always be the thought
that something will turn up.

(Continued on page 23)

C2Tl9/l/VH	22	10/2/89
Briggs

MR McCUSKER: No, it is not, Your Honour. In the end the
question was clearly one for the jury and the
jury must sensibly have regard to all of the
evidence and the complaint that we make is that the jury was not directed to have regard to all of the evidence and from that to determine whether
the only inference that could reasonably be drawn
was that there was a dishonest agreement; that
is, an agreement based on the belief that there
would be a tax liability and the intention was
that the commissioner would not get his due.

MASON CJ: But it is clear, is it not, from page 148 and
the top of page 149, later going on to 150 and
151, how the trial judge was putting it to the
jury? He was treating it, the claim of the honest
belief, as something that went to the issue of
dishonesty and he was at pains to point out that
the real issue was dishonesty.

MR McCUSKER: Yes, Your Honour, but when His Honour said
the real issue was dishonest and, indeed, we
agree it was, the use that he made of that term in other respects must have left the jury quite
confused as to what the real issue was that was
raised by the term - - -

MASON CJ: That is another point, is it not? That is
another point. It is not dealing with the point
that you are currently on.

MR McCUSKER: It is in this sense, Your Honour, with respect,
that when one takes in isolation what His Honour
said at pags 148 through to 150, one might say,
"Well, he is there seeing the question of belief
that there would be a tax liability as the issue
going to dishonesty." But when one looks at the remainder of his directions to the jury, it can
be seen quite clearly that that was simply a

proposition, at 148 to 150, which he was saying
was advanced by the defence and elsewhere in

.
indeed, what the prosecution put as being assential
terms of dishonesty he quotes from -adopta, of dishonesty was described as the deliberate
breaches, the flagrant breaches, of section 67
of the Code.
Now, how that can be relevant to the question

of dishonestyin the context of - - -

MASON CJ: But that is another point, is it not? That is another matter you complain of, not this
one.

MR McCUSKER: It is a different matter, Your Honour, but
it has to be borne in mind as being the backdrop

C2T20/l/ND 23 10/2/89
Briggs
against which one considers what he said at 148
and following. If His Honour had said no more
about dishonesty than is contained at 148 to
150 we would still be complaining because we would say that is not sufficient, he has not
adopted, he has not directed the jury, he has
simply quoted from what was said by the defence.
But there is more to it than that. Dishonesty
being the central issue His Honour, in his directions
to the jury, equated dishonesty - or invited
them to find relevant dishonesty by reference to
other material, the section 67 breaches and the
unauthorized use of a company.
So that the jury, in our submission, were

left at large to look at any act that was put
before them in terms of the evidence of the
prosecution and to conclude from that that there

was a dishonest disagreement. The Court of Criminal

Appeal has endorsed that approach. Although
it has said that the proposition advanced for
the defence as to what dishonesty meant was correct
they have, at the same time, said that it was
legitimate to introduce other acts of dishonesty
and, in that lies inherent confusion because,
if it be the case, if I could take, perhaps by
way of example, going back to the neat example
of conspiracy to trespass, if the Crown case
were that the two accused had conspired to trespass
and it was shown that they had indeed trespassed,
the jury was invited to infer from that that
there had been a dishonest agreement to trespass,
would it be open to the Crown to show that for
the purpose of trespassing the accused had stolen a car or engaged in some other dishonest conduct.

(Continuing on page 25)

C2T20/2/ND 24 10/2/89
Briggs

BRENNAN J: It depends on the facts, surely.

MR McCUSKER:
Well, on those bare facts, in our submission,
the trespass alleged not being trespass to the car
as a bald proposition,in our submission, it would
be untenable to suggest that the dishonesty which is
relevant there to that charge, if there be - enable
the introduction of evidence of that nature.
In the present case, suppose it were the fact
that beyond any argument, money from an outside
source, perhaps that of the applicant himself, had
been used for the purpose of purchasing the shares
in these target companies, so that there were no
breaches of section 67 at all, that the money was
later taken from the companies, let us say, by the

distribution of dividends. The fact that there were
no breaches of section 67, in our submission, would
not deter the prosecution from proceeding and it
would be irrelevant that there were no breaches
of section 67, and conversely our submissions is
that the fact that there were breaches of section 67
was an issue which the jury were invited to
determine which was totally irrelevant to the
question of what dishonesty meant or means.

BRENNAN J: In that example, would. it be relevant to show

that profits were being paid, now that dividends
were being declared,out of something other than
profits?

MR McCUSKER: No, Your Honour. That would be relevant, 1n
our submission, if the charge were a breach of
the COMPANIES CODE.

BRENNAN J:

Is it not relevant to show the circumstances under which the company's assets were evacuated?

MR McCUSKER: The fact that the companies' assets were

evacuated, that bald fact is itself sufficient to

establish the deprivation. The question is, "Has
the commissioner been deprived?", the answer is,
"Yes, of tax to which he would have been entitled

or ultimately became entitled". Now, that
deprivation is established by the simple fact that
the companies' money has gone in one way or another,
but what the prosecution sought to do was to
establish that the deprivation was dishonest by
referring to breaches of the COMPANIES CODE, instead
of directing the jury's attention to the real
question of dishonesty, that is the belief that
either the companies would have a tax liability
or perhaps stepping back a pace even, that there
was a belief that there was a real risk that
the companies would have a tax liability.

C2T21/l/HS 25 10/2/89
Briggs
MR McCUSKER (continuing): But neither a belief that the
companies would have a tax liability nor a belief that
there was a real risk are matters to which breaches of
section 67 of the COM:!?ANIES CODE, an unauthorized
use of a company,are at all relevant. It may be
relevant, in our submission, if the charges were
conspiracy to breach section 67 of the Code or
substantive allegations of breaches or conspiracy
or substantial allegations with respect to breaches
of the CONPANIES CODE by improper use or holding out
oneself as director of a company.
So, Your Honours, the major special leave point

on which we rely is the question of definition of
dishonesty in relation to a conspiracy to defraud
and we say that the Court of Criminal Appeal here
has adopted the same approach as was espoused by
the prosecution and the trial judge, and that is
that any kind of dishonest conduct connnitted in the
course of the conspiracy or the deprivation of itself
may be looked to as the relevant dishonesty for the
purpose of conspiracy to defraud.

MASON CJ: Can you point us to any passage in the judgments

that specifically says that?

MR McCUSKER:

Yes, Your Honour. At page 309 there appears

this passage in the joint reasons of Justices Wallace

and Olney dealing with W ._.F Services Pty Limited
where Their Honours say.- this is dealing with one
of these two ingredients, alleged ingredients of
dishonesty.

MASON CJ: This is the unlawful use of W.F. Services?

(Continued on page 27)

C2T22/l/BR

26

10/2/89

Briggs
MR McCUSKER, QC: That is so, Your Honour. Their Honours

say:
It was the prosecution's argument that the manner in which Briggs opened a bank
account in the name of W.F. Services
Pty Ltd and used that company's name was
relevant to the determination as to
whether his agreement with Cornelius was
dishonest.

Now, that is quite so, that epitomizes the prosecution's
argument. Their Honours go on to say:
The trial judge so ruled and in our opinion
did not thereby fall into error.

GAUDRON J:	Well, was it not a fact related to the execution of the admitted agreement from which a jury might,
in combination with other facts, be entitled to infer either the terms of the agreement, that is,
to deprive the taxation commissioner of that which
he was or would be entitled or to infer, which may
really be exactly the same thing, dishonesty?
MR McCUSKER:	Well, the inference of dishonesty, Your Honour,

is the difficulty which we raise as a special leave
point. Certainly if the jury concluded that the
use of W.F. Services Pty Limited was unauthorized
they could clearly infer from that, or conclude
from that, that Briggs was dishonest, that he had

used without the authority of the directors that
company, and that is dishonest. But how is that
relevant? To reach that conclusion of dishonesty
does that conclude the question of conspiracy to
defraud or does it even assist the jury to reach
that conclusion? At page 311 Their Honours, still
dealing with this point, said:
The appellant Briggs criticises his Honour

for failing to direct the jury as to how the
above evidence could be used. It is argued
that his Honour virtually directed the jury to
find that the use was unauthorised, and then
left it open to the jury to conclude that
it was a basis for finding guilt of the charge
(of conspiracy to defraud) - as an element
of dishonest conduct, as the prosecution put it.
That after all was clearly the case and we can
find no error in his Honour's direction thereon.
(Continued on page 28)

C2T23/l/MB	27
Briggs

BRENNAN J: And what is the error that you point to? Is

a special leave error here?

MR McCUSKER:	Yes, Your Honour, because it - - -
BRENNAN J:	What is it?

MR McCUSKER: I am sorry. That is the view that the meaning of conspiracy

or the definition of conspiracy to defraud and the use
of the term "dishonesty" entitles the prosecution
to introduce evidence of dishonest conduct as distinct
from evidence which points to the accused's knowledge
or belief here that the commissioner would be entitled
to tax or that there was a clear risk once - takes it
a little lower that the commissioner would be entitled
to tax.

BRENNAN J: Admissibility depends on whether the challenged

piece of evidence tends to make more likely or not the
ultimate fact for proof and so the question is: if this
was an unauthorized use of a company, does that tend to
show that it is more likely than not that the exercise
on which they were engaged was a dishonest one in the
rele, ant sense.

MR McCUSKER:

The relevant sense being a knowledge that the companies

would have a taxation liability because it is the
dishonest - - -

BRENNAN J: That may be so but I mean, if the charge is being in

possession of housebreaking implements by night, and
they prove that the man has got a jemmy in his hand,
your argument would say that you cannot prove that he
has got a blackened face.

MR McCUSKER:

No, Your Honour, no, certainly not. If I could put

it this way: suppose the charge were to conspiracy to
cultivate cannibis and there was evidence that one of
the accused had, at some stage, stolen a tractor or, at

least, that was the issue, whether a tractor which was

used on the property was a stolen tractor. Now, it may
well be said, "Well, if he stole the tractor, he is,
therefore, likely to be engaged in a dishonest enterprise
such as cultivating cannibis." That may be well said by
a jury, at least, that the likely assumption - - -

BRENNAN J: But the question is

was the tractor found on the

cannibis plantation and here was the company involved
in the exercise which was impuned.

MR McCUSKER:

In such a charge, Your Honour, my submission would

be that it would be open to the prosecution to prove
the cultivation, prove the participation by the accused
in the cultivation and so on as acts pointing to the
conspiracy but to, in the course of that, show that
some of the equipment found on the property was stolen

C2T24/l/SH	28	10/2/89
Briggs

property is really to introduce evidence of something
entirely irrelevant to that issue. It may well be
proof of conspiracy to steal the property or, indeed,
the substantive theft.
(Continued on page 30)

C2T24/2/SH 29 10/2/89
Briggs

BRENNAN J: Well, your point is one of relevance or non-relevance,

is that right?

MR McCUSKER:	No, Your Honour. Well, the point is more important than that. It raises the whole question of what is
meant by dishonesty in a conspiracy to defraud charge,
and the court here has clearly taken it to be the case that the dishonesty need not be directed to the question of the character of the deprivation but rather
any dishonest: conduct along the way to the deprivation. jury what the charge was, expounding on that, it was
described by the prosecution as "the first element of dishonest conduct" on the part of the accused. It was described by His Honour the learned trial judge,
at page 128, as being - at the top of that page -
having canvassed the evidence relating to yJ. F~ Services
as:

A question for you to decide.
Now, neither in respect of that question nor the question
of whether what was done constituted breaches of
section 67, did His Honour explain to the jury what
use they were to make of such a determination, although
perhaps I should put in these terms that he i.nplied to
the jury that determinations on those issues would
enable them to determine whether or not there had been
a conspiracy to defraud the commissioner.

TOOHEY J:	Mr Mccusker, was the evidence itself challenged?
MR McCUSKER:	The evidence as to?
TOOHEY J:	The opening of this account and the operations on it.

MR McCUSKER:

Oh yes, Your Honour.

That is the introduction of

such evidence.

TOOHEY J: Yes.

MR McCUSKER:

It was not only challenged, but it was at the very

outset, when the question of breaches of section 67
was raised in the particulars given, it was challenged
at the very outset of the trial as being the introduction
of Han irrelevant, distracting and prejudic·ial issue,"
one likely to prolong the trial, as indeed it did.

(Continued on page 31)

C2T25/l/VH	30	10/2/89
Briggs

MR McCUSKER (continuing): Both of these issues were
challenged at the outset and the evidence relating
to them was challenged on a broad front as being
simply based on a misconception as to what
dishonesty meant in terms of conspiracy to defraud.

DEANE J: Mr McCusker, in identifying the questions, can
I take you back to your starting point, and that
is onus of proof? I follow what is said about
the direction being confusing. ls there anything
in the directions relating to onus of proof that
you say was wrong as distinct from inadequate?

MR McCUSKER: Whether one can distinguish "inadequate" from "wrong"
in this context, but I understand the point
Your Honour is making.

DEANE J: I mean, for example, there was a full and accurate
direction on onus of proof at at least one stage
of the directions.

MR McCUSKER: There was, Your Honour, yes.
MR McCUSKER: And the complaint identified is at the end
when further directions were given at the request of the Crown, what was said was either inadequate or confusing?

MR McCUSKER: Yes.
DEANE J: But what I was asking you, is there anything
on onus of proof that is said to have been plain
wrong?

MR McCUSKER: I think in the outline, Your Honour, I have

identified the various passages. Starting at
page 16 of the outline - this is ground 9. It
is conceded that the learned trial judge correctly
put the onus in standard proof as he did at page 105.

That is at the outset of his directions. Then,

at page 117 - that is a typographical error there - the judge referred to matters being prudent 11 to

the standard I have just talked to you about." reasonable people so it is in a different context.

That, perhaps, can only be categorized as tending to confuse.
At page 121, His Honour said, in the second-

last paragraph:
if there is any reasonable hypothesis consistent
with innocence, it is the duty of the jury
to acquit -

which would seem, in our submission, to be reversing
the onus.

C2T26/l/ND 31 10/2/89
Briggs

DEANE J: I do not understand that. I mean, would not
any jury, before they were persuaded guilt beyond
reasonable doubt, have to ask themselves, is
there any reasonable hypothesis consistent with
innocence?

MR McCUSKER:

Yes, in mental processes, I accept that that is so, Your Honour, but it is a question

whether that is seen as the task or whether the task is primarily a task of determining whether the proven facts point to the inference sought
to be drawn by the Crown as being the only
inference that could reasonably be drawn.
DEANE J: I cannot see anything wrong with that, I am
sorry. If it is to be interpreted as saying,
"Don't bother about proof beyond reasonable doubt
but concern yourself only with, 'Is there a reasonable

hypothesis consistent with innocence?"', I can see the force in what you say but unless it is that it seems to me to be a completely proper
direction.

MR McCUSKER: The cavil which we have with it, Your Honour,

is that it appears to invite the jury to embark
on an inquiry as to innocence rather than to
remind them that what has to be established by
the prosecution is proof of guilt beyond reasonable
doubt.

(Continuing on page 33)

C2T26/2/ND 32 10/2/89
Briggs

BRENNAN J:

Mr Mccusker, in my day that was the call, the catch-cry of defence counsel and I thought it
came from PEACOCK's case.

MR McCUSKER: I will not pursue that point as it is not the
main one on which we rest our case, Your Honour.
He did the same at page 124.

DEANE J: But reading through all those, it does seem to come
down to the confusing and inadequate rather than
plain wrong, does it not?

MR McCUSKER: Yes, Your Honour. I think that is the main
thrust of it, that the directions which His Honour
gave were essentially of a confusing nature, and the
redirection was perhaps the major aspect of the
confusion.

Bfill-~TAN" J: What was the precise confusion about the redirection?

MR McCUSKER:
His Honour at page 163, having been asked by the
prosecution to direct the jury on the question of a
standard of proof, referred in the first paragraph to
this and said:
"In all the circumstances", of course,
must be subject to the standard of proof
and I will go over that' again.
And then having said that said:
Before you can draw any inferences as to circumstances, as I have said, you must be
satisfied to that standard of proof that I
have just mentioned of all the facts
before you draw any inference.

(Continued on page 34)

C2T27/l/BR 33 10/2/89
Briggs

MR McCUSKER (continuing): Well, His Honour did not just mention

any standard so it left it completely confusing,
we would say, as to what he was talking about there.

BRENNAN J:

But the issue between the parties here was a question

of the intent or state of minds of the accused, was
it not?

MR McCUSKER:	Yes, it was.
BRENNAN J:	And that was to be derived largely, if not entirely,

on the events that had occurred and thus it was a
question of inference subject to any explanation
of innocence that might be found elsewhere in the evidence and at the end of that passage the judge
told them that they must - looking at circumstantial
evidence there can be only one inference that can be
drawn before they can convict and otherwise they
would be bound to find him - not only acquit him

but virtually to find him innocent. Now, where is
the error?

MR McCUSKER:

Well, the error at page 163 is an error in that

there is, as I say, no standard of proof which is
described at all.

BRENNAN J:	Was it not a precise application of a standard of proof to circumstantial evidence?
MR McCUSKER:	The basis on which the prosecution sought, correctly

a redirection c was that His Honour had earlier talked
about looking at all - if in all the circumstances
and that raised, or rather tended to detract from
the requirement that the jury be satisfied beyond
reasonable doubt of the facts from which the inference
was to be drawn. When telling the jury that they
were required to find, according to that standard
of proof that I have just mentioned, His Honour must have - bear in mind there was an interval, Your Honour, so it was not as if it was just simply

before. following on from something he had said immediately

BRENNAN J:

So the complaint really is that he did not give

them what is, I think, come to be understood as
the CHAMBERLAIN direction, that they should find the
primary facts beyond reasonable doubt.

MR McCUSKER:

That is so.

(Continued on page 35)

C2T28/l/MB	34
Briggs

BRENNAN J: ls there any doubt about the primary facts,
any contest?

MR McCUSKER: There was also the question of reaching a
conclusion.

BRENNAN J: That is the inference part, is not it?

MR McCUSKER: Yes, it is, and they must be satisfied, in
the end, beyond reasonable doubt of the conclusion
of guilt.

BRENNAN J: But if there is no contest as to the primary
facts and if the direction was siven was
so far as the prosecution was concerned an accurate
direction as to the drawing of interests, where
is the error?

MR McCUSKER: Your Honour, there was a dispute as to
primary facts in this respect, I suppose, or rather
there was a dispute as to the inference that could
be drawn, I should perhaps put it, from all the

primary facts. The jury had to be satisfied
beyond reasonable doubt in the end that the accused
had the relevant intention or state of mind and in
order to do that it had to draw that inference from
primary facts proven beyond reasonable doubt and
that direction was not given - when the redirection was
sought and purportedly given, it was not given.
The Court of Criminal Appeal, though it took

the view that there had not been an adequate
direction in that regard or rather, that it was
confusing in the case of the majority and inadequte
in the view of Justice Kennedy, in the view of
the majority that deficiency was remedied by a
counterbalancing harshness on the prosecution.
That, we would say, is a proposition which ought
to be rectified because no such proposition, as

confusion of a central issue, an important issue far as I am aware, has ever been advanced before in terms of rectifying a defect or inadequacy or
such as standard of proof, by saying that there has
been an undue harshness on the prosecution.

(Continued on page 36)

C2T29/l/HS 35 10/2/89
Briggs

MR McCUSKER (continuing): Your Honours, in order to fully

appreciate the proposition which we advance on the
question of honesty, I would like to take Your Honours
through some of the material which shows the way in
which this concept of honesty caused a difficulty in
the trial. The two major issues in the trial were
this use of W.F. Services, the unauthorized use, and
breaches of section 67 of the Code and throughout the
trial, right through to the end, they were taken to
be and directed as being issues for the jury's
determination by the trial judge.

MASON CJ: Yes. Well, now, we do not want to go into the materials

too deeply, Mr Mccusker, at this stage because we are
still focussing our attention on whether or not it would
be appropriate to grant you special leave.

MR McCUSKER:	Yes.
MASON CJ:	So that, if you are referring to materials of that

kind, it must be by way of illustration only, designed
to demonstrate that there is a point of general

principle raised by your submission. We are not
embarking on the hearing of the appeal.

MR McCUSKER:	I accept that, Your Honour. Perhaps, dealing with the question of the directions which were given, I
could just refer - I think, Your Honour Justice Brennan
put to me the proposition that the Court of Criminal
Appeal had distinguished this case from cases in which
there had been merely a quotation from defence counsel's
remarks.

BRENNAN J: Yes, at page 286.

MR McCUSKER:

Yes, Your Honour.

The statement in CLELAND's case,

( 1982) 151 CLR 11 is referred to, I think, at page 10
by Their Honours. In that case, His Honour
Mr Justice Gibbs, the then Chief Justice, said at page 10:

It is clear in principle that a trial judge,
when directing a jury in a criminal trial,
must hold an even balance between the cases
of the prosecution and the accused and must
fairly direct the consideration of the jury
to the matters raised by the accused in his
defence.

He went on to say:
In the present case the summing up is open to criticism, although the defence case to which the judge directed the jury's attention in a
general way had only recently been presented
to them, was not complicated and was likely to

have been fresh in the jury's minds ..... It

C2T30/l/SH	36	10/2/89
Briggs

may be added that no objection was taken
to His Honour's summing up on this ground.
Now, in this case, the case was complicated in the sense that there was a great deal of material on

which the trial judge needed to direct the jury as
to its relevance. It certainly was not the case that
the defence case had recently been presented to them.
The jury, in this case, had last heard from the
defence some 11 days before the trial judge gave

directions to the jury and that made it, as
Justice Kennedy certainly considered to be the
case, all the more imperative that a direction be
given to the jury by the judge on the matters raised
by the accused in the defence.
Your Honours, although it has been said that the

facts for the main were not in dispute, there were a
number of facts of which little, if any, mention was made although they were referred to by Their Honours
Justices Wallace and Olney in their reasons which the
defence sought to remind the jury of in order that the
jury would have before it the possibility of an
alternative inference; that is, an inference consistent
with innocence.

(Continued on page 38)

C2T30/2/SH	37	10/2/89
Briggs

MR McCUSKER (continuing): There was evidence that
Mr Cornelius had apparent expertise in taxation and accounting matters, whereas
Briggs had not. There was evidence of
access by Cornelius to expert advice from leading
counsel and advisers. There was evidence which
tended to refute the suggestion that there was
some attempt at subterfuge on the part of Briggs,
that Briggs and his wife were directors of the
acquiring companies and that returns were
lodged with the corporation affairs office showing
that they were the directors of these companies
with Briggs' .premises shown as the registered office.
There was evidence that Briggs was signatory to
all bank accounts, that he had signed cheques and
documents prepared by Mr Cornelius and allotment
of shares and so on. Importanly, there was evidence
that he had paid Cornelius and others in his office
to carry out the preparation of companies and
taxation returns in relation to these companies
and was insistent that they should be prepared.
Now, we do not say that that evidence, of course, raises an irresistible inference that
Briggs expected that the companies would be
lawfully treated and have no taxation liability,
but it is evidence which the jury should have
been reminded of, in our submission, at the end
of a very long cas~ and having not heard of these
matters for some 11 days, in the course of the
trial judge's direction to the jury, and
furthermore,that the jury ought to have been reminded of what it was that constituted the
essential element of dishonesty.
Justice Kennedy, in his observations - in

his reasons, said in particular that the thought
that the trial judge had paid insufficient
attention to the time that had elapsed since the
jury had heard from the defence. That appears at
pages 346 to 347. At the foot of page 346, it

is said that: (Continued on page 39)

C2T31/l/JM 38 10/2/89
Briggs
MR McCUSKER (continuing):
paid insufficient regard to the time which
had then elapsed since the defence addresses.
..... he should have canvassed the facts to
a greater extent and he should have reminded
the jury of the defence submissions somewhat
more extensively than he did.
But then having said that he said:
Although, however, I have reached the
conclusion that the charge fell below the
required standard, it does not appear to me
that it fell substantially below that
standard.

At page 336 His Honour made the same point, half-way down that page:
It is, in my view, an important consideration
in the present case that, at the time when the
learned trial Judge came to charge the jury,
eleven days had elapsed since counsel for the
defence had addressed. In the meantime, the
jury had listened to a detailed criticism of
the defence case. There was, I consider, a
particular need to remind the jury of the
substance of the defence and to point to the
significant evidence relied upon.

Now, although His Honour,at page 342 to 343,referred to the major defence point as stressed by counsel being that Briggs believed that Cornelius had the
competence and intention of treating the target
companies - this was put to the jury in the long extract to them by His Honour from Mr McCusker's final address - in our submission, what His Honour
Justice Kennedy failed to have regard to at that
point was Chat although that was the oa.jor defence

point, the facts relied upon as possibly raising an inference consistent with Jnnocence, was simply not

canvassed to any degree by the trial judge in his directions to the jury.

(Conti~ued on page 40)

C2T32/l/BR 39 10/2/89
Briggs

MR McCUSKER (c.ontinuing): That failure, after that long interval

coupled with the failure to direct the jury as to
what was meant by the term "dishonesty" and, indeed,
to direct the jury that it was for them to determine
as an issue, whether section 67 had been breached
and whether W.F.Services Pty Limited was unlawfully
used as being evidence of dishonesty; all of that
resulted, in our submission, in there being no fair
trial of the issues, because the jury did not have
placed before it a precise statement of the issues
and the evidence which was relevant to those issues
by the trial judge.

BRENNAN J:

Mr Mccusker, was there any suggestion in the course

of the trial that the understanding that the applicant
had of the capacity and intentions of his co-accused
was at odds with what actually happened in respect
of Rochester and Plateau? In other words, was
Rochester and Plateau entirely in accordance with

the agreement that was made or was it something
that was a new development?

MR McCUSKER: Well, Your Honour, there was no direct evidence

of what the agreement was save that it was common
ground that Briggs and Cornelius had entered into
a business of tax avoidance but, as to whether that
agreement to enter into that business encompassed
specifically Rochester and later, Plateau, there was
no evidence.

BRENNAN J:	But those were the schemes which were adopted.
MR McCUSKER:	They were the two schemes - yes, they were.
BRENNAN J:	And those were companies under the control of Briggs.

MR McCUSKER:

They were, Your Honour, yes.

But when one says

they were under the control of Briggs, that is not to
say necessarily that Briggs would have understood what
was involved in the Rochester and Plateau concepts.

The evidence was that for Briggs this was a minor
part of his business activities, as it were, which he
left to Cornelius to run, albeit he was the signatory

to the various returns and ·the- director of the various

companies. But in terms of his total business
activities, as I say, this was a minor part, his
activities being concentrated on mining matters and was,
according to the evidence, frequently away.
I mention that, Your Honour, in case it be thought

that because he was director of these companies,
it could be concluded that he was privy to, and
understood, necessarily, all that was going on.
There are two views, looking at the Rochester and
Plateau schemes,and ·conceding as we do that those
schemes, on any view of them, were simply bound for
disaster.:- they were hopeless schemes - there were

two views that could be taken. One is, of course,

C2T33/l/VH	40	10/2/89
Briggs

that anyone having an understanding of taxation
matters and a reasonable understanding of what
was involved in those schemes must have been party
to an agreement to defraud the commissioner. That
is one possible view which was espoused by the
prosecution. Another, however, is that a person
in Briggs' position who had engaged a person with
apparent expertise, particularly since Briggs made
no attempt in any way to conceal his involvement
in the operation - he and his wife were both
directors - and he had specifically instructed that
there be returns filed for these companies and
lodged, there was some evidence that he was at
pains to ensure that the work was being done -
that he simply was not cognizant of - did not
understand - what was involved and simply left it
to some other person and his intention was -in terms
of the agreement, his intention was that, via
Cornelius' expertise, these companies would, in
some way. which he did not understand, lawfully be
divested, as it were, of their potential tax liability.
Now that inference was the inference which was
urged as being a competing inference, open to the
jury on the various facts which were adduced and,
in particular, reliance was placed on the openness,
so far as Briggs was concerned,and the fact that the
companies were not dumped but retained and, indeed,
one of the companies, a company called Bunburra,
which was simply one apparently selected at random
of these target companies, so-called, was retained
by Briggs and used for some other business activities. it was unlikely that Briggs would have done so had
he not believed, however wrongly, that these companies
had been lawfully treated, to use the jargon of the
time.

(Continued on page 42)

C2T33/2/VH	41	10/2/89
Briggs

MR McCUSKER (continuing): That is rather a long answer
to Your Honour's question to me.

BRENNAN J: I am indebted to you, thank you.

MR McCUSKER: So it was that kind of evidence which was
relied upon by the defence and which, the submission
is, should have been put to the jury as being
evidence from which the jury might, or might not,
draw a hypothesis which was consistent with innocence.
But overshadowing all of that, as the defence saw it, the case really could be simplified into a case
where the proposition was that the accused had
entered into an agreement with the belief or
expectation that these companies would have a tax
liability or that there was a real risk that they
would, and that that belief that they would have the
taxation liability, or that there was a real risk
that they would, was the essential question of
dishonesty, or the alternative hypothesis was that
he entered into an agreement with no such belief
but indeed with a belief that based on the expertise
of Cornelius in some way unknown to Briggs these
companies would be divested of any latent taxation
liability, and hence there would be no tax liability
at the relevant time.
That again was the question of honesty or
dishonesty, but overshadowing all this was the
argument that dishonesty in the relevant sense
extended to questions of dishonest conduct and the
breaches of section 67 were referred to as nasty
conduct, dishonest conduct, the first element of
dishonest conduct, and so on, and the question which
we say is the special leave point for this Court's
determination focuses on what is meant in terms of
SCOTT V DPP, what is meant by the term dishonesty,
because it was not simply a case, Your Honours, of
the omission of inadmissible evidence. There is
more to it than that.

(Continued on page 43)

C2T34/l/HS 42 10/2/89
Briggs

MR McCUSKER (continuing): This was a case where the admission

of the inadmissible evidence, which we say it was,
was based on a particular view, understanding of
the meaning of the term "defraud" and "dishonesty"
in that meaning. Unless corrected that approach

will continue to be adopted by the courts and by
prosecuting authorities, certainly in Western Australia,
a view that in a conspiracy to defraud case any

evidence of dishonesty engaged in in the course
of the alleged conspiracy can be adduced to satisfy
the jury that there has been a conspiracy to defraud.
That would mean, for example, that let us suppose
that the premises which are occupied by the
alleged conspirators were premises which could not

lawfully be used for that purpose. It raises a
question, "Is that dishonesty to use them for
it in the course of dealing with the vendors
some purpose other than their lawful purpose?" suppose
of shares in the target companies, the vendors
allege that misrepresentations have been made to
them regarding, perhaps, the purchase price that
they are to get for their shares.
That may well be an instance of dishonest

conduct but would that be relevant dishonesty for
the purpose of an alleged conspiracy to defraud the
Connnissioner of taxation. In our submission it
would not, it would be evidence of general
dishonesty.

MASON CJ:

Now, Mr McCusker, you indicated that ground 2.7

raises a special leave point, that is, the admissibility
of the evidence relating to artificial schemes?

MR McCUSKER:	Yes, Your Honour.
MASON CJ:	Now, you have not said anything about that to date?

MR McCUSKER:

Not as yet, no.

This was a matter which was

debated. The defence sought in the course of the
trial to introduce evidence that at the relevant
time - we are talking of some 10, 11 years ago -
there was a general understanding and belief in
the connnunity that there were various artificial
contrived and preordained schemes which though
bearing those descriptions were nevertheless schemes
which were effective for the purpose of avoidance
of tax and, indeed, the further evidence which was
sought to be adduced was that there was at those
times a thriving taxation avoidance industry based
on that understanding.

C2T35/l/MB	43
Briggs

MR McCUSKER (continuing): The purpose of seeking to
adduce that evidence again went directly
to the question of the inferences that might be drawn by the jury in particular as to the accused's belief or intention, that is the
proposition was and is that a person who is
living in a community where tax avoidance
industry is flourishing based on an understanding
of that nature is more likely to have a belief
that Mr Cornelius would be able, by some
accounting tricks, to apply a scheme which was
lawful and which would be upheld and which would
have the result that these companies would not
have a taxation liability. That climate has,
of course, changed dramatically but what was sought
to be adduced was evidence from a number of
people that that was the climate of the times,
and that it was in that context that the jury
ought to have viewed the actions of Mr Briggs
making it less improbable that he would have
had the means and the expertise to ensure that
entered into an arrangement of this nature with
the companies would have no taxation liability.
That kind of evidence was excluded by the

trial judge. I should say at once that there
was some comment made on the climate of the times
in the course of the closing address to the jury.
There was some evidence which was given in
the course. There was some evidence that indeed,
I think, came out in-chief, relating to some
aspects of what was going on at the time and
indeed, some of the vendors of shares who were
called by the prosecution in some cases said that
they assumed that the purchasers had some means
whereby the taxation liability could be obliterated -
some lawful means. But nevertheless, a great deal
of evidence which was sought to be adduced was

prevented from being adduced and furtherm:,re, the

ruling of the trial judge was that all of that
was irrelevant, and that was a ruling which was
upheld by the Court of Criminal Appeal.
Now, in the context of this kind of trial

it is important, in our submission, that this
Court give a ruling as to whether or not evidence
of that nature is indeed evidence which would be
admissible and relevant to a question of conspiracy
to defraud the Commissioner of Taxation.

(Continued on page 45)

C2T36/l/JM 44 10/2/89
Briggs
GAUDRON J: Well, you do not put it as relevant, do you, as
such? You say it is relevant to a relevant fact
in issue.

MR McCUSKER:

Yes, Your Honour. That is

GAUDRON J: So, you are really one removed.
MR McCUSKER: It is relevant to a relevant fact in issue, yes,
that is quite so, the relevant fact in issue being
the state of mind or belief of the accused.

GAUDRON J: And this, you say, is relevant without proving his
knowledge of those matters and that is - - -

MR McCUSKER:

Yes, Your Honour, it is relevant as bearing on the

likelihood of his belief.

GAUDRON J:

I do not see how it is unless you prove his knowledge.

I do not see how anything bears on the likelihood of belief in the absence of knowledge. What you are asking is, "Let us assume from this that this is
something that the accused knew".

MR McCUSKER:

Yes, well, one could readily assume that,

Your Honour. It is a question of inferences, of
course, in this case. The entire case was based on
inference and if, at the relevant time, that was the
common understanding in the community, then the jury
ought to have appreciated that, in looking at the
significance of what were described as artifical tax
schemes, pre-ordained shams. The prosecution invited
the jury, in effect, to draw the inference that no
reasonable person could have believed that the
company's taxation liability would be lawfully
obliterated.
Now, if the jury had before it evidence that there was current at that time a taxation avoidance

such schemes did exist, then that made it less likely industry and there was a current understanding that
that they would accept the prosecution's proposition

which was one only of inference or assumption. So,
it was really a case of putting two competing views,
both of those views being, in the end, assumptions.

BRENNAN J: Is there any proof of the evidence of the witness
whose evidence was rejected?
(Continued on page 46)

C2T37/l/SH 45 10/2/89
Briggs

MR McCUSKER: No, Your Honour, no there is not. The ruling
was made and thereafter no such evidence could be

adduced. The ruling was clear in its terms that no
evidence as to climate of the times could be given
and that - - -

GAUDRON J: The trial judge, though, making it clear that
evidence as to your client's - - -

MR McCUSKER: Own state of belief.

GAUDRON J: - - - own state of mind, own state by which one
assumes knowledge, as well as belief, was admissible.

MR McCUSKER:

Yes. In other words, that had the accused given evidence he, the accused, could have said what he
believed to be the case, but evidence which would support
that belief was denied him, as evidence that that was
not only his belief, but that there was a general belief
that there was abroad in the community at the time, the
commercial community, that understanding, and that there
were various taxation avoidance businesses which were
openly advertising and flourishing, all of that to be

deplored, but nevertheless that was the case. None of
that evidence was permitted to be put before the jury
in terms of it being admissible or relevant and whether

Briggs gave evidence - indeed, he did not give evidence- but whether an accused person gives evidence of his
own belief or not, evidence of that climate is surely
relevant when considering what the likely belief or
intention or purpose of the accused in a conspiracy
to defraud case was.
Now, Their Honours in the Court of Criminal Appeal
did not deal in any detail with the argument on that
proposition but simply considered that the trial
judge's ruling was correct and, Your Honours, on that
point, summarized at page 387 to page 388 are the
propositions advanced in support of the content ion

that this is a special leave point and the argument

w h i ch is put forward there, I wi 11 not re pea t i t . I t i s
essentially what I have been putting to Your Honours
a moment ago.

MASON CJ: Mr Mccusker, that covers the points that you rely
on as special leave points, does it not?

MR McCUSKER: It doe~Your Honour, the major points. There
is perhaps a minor but by no means insignificant point
and that is the direction given by the learned judge
in the trial regarding the nature of the evidence
which could be adverted to by the jury.

C2T38/l/HS 46 10/2/89
Briggs

MR McCUSK.ER (continuing):

That is ground 2.

The judge's

direction appears at page 117 about half-way down
the page where His Honour was directing the jury

as to how a man's intention could be inferred and
having quoted the words which appear about two-thirds
of the way down, said:
In this case, of course, from what he said and
did - - well, the accused in this case,
of course, have not said anything, so that
you will be inferring the intention here
from what they did, from the evidence.

Now, having regard to the words which were
quoted ea!'lier,"in inferring a man's intention from
what he said and did" the jury are entitled to take
into account their experience of life and so on.
Having regard to those words the concern of the
defence expressed at the time after His Honour's
direction was that the jury would be led into
thinking that because the accused had said nothing
at the trial evidence of what the accused had said,
that is, evidence given by witnesses as to what
the accused have said at the time of these events,
could not be relied upon at all, could not be used
for the purpose of inferring their intention,

particularly Briggs' intention. The matter was
raised with the trial judge at pages 155 to 157,
starting at, perhaps, best at 156 where it was
pointed out:
your Honour said that intention may be
inferred from both words and conduct, but
here you have not heard from Mr Briggs.
He has given no evidence, so you must
simply look at the documentary material.

That was paraphrasing what was understood to be
the thrust of what His Honour had said and that
it was submitted:

that is not what is meant by inferring

intention from words and conduct. The
words ..... must be the words of the accused
according to the evidence at the time.

So that the fear was expressed, the concern was expressed that that direction would have invited
the jury to disregard evidence of what had been
said. We, as lawyers, of course, would say, "Well,
that is absurd, as a matter of law, but the jury
were being directed as laymen as to how they were

to infer a man's intention. The matter was
raised there and also at pages 160 to 161. The
point having been canvassed with the learned
prosecutor it was submitted again that a redirection
was required,that no such redirection was given.

C2T39/l/MB	47
Briggs

The Court of Criminal Appeal, at page 267
said, just above the heading Ground 3, having
canvassed what had occurred:
In our opinion his Honour's comment would
only have been understood, in the context of the
trial, as relating to the fact that the
appellants did not give evidence.

With respect, that is an interpretation of effectively what the Court of Criminal Appeal assumed the jury would make of that direction.
It is submitted that the direction was, at the
best, a confusing direction, at the worse, a clear
direction to the jury that they should disregard
evidence in drawing inferences, evidence of what
Briggs had said. Justice Kennedy at pages 329 to 330,
particularly at page 330, the third line on:
Secondly, the direction, on its face,
arguably excludes from the consideration
of the jury on the question of intent any
out of court statementsmade by the appellants
to various witnesses, including, in
particular, it was was argued, Messrs Del Piano,
Abbott and Brinklow.

(Continued on page 49)

C2T39/2/MB	48
Briggs

MR McCUSKER (continuing): This was not merely a fanciful

point, Your Honours. We provided details as
details were given to the Court of Criminal Appeal
of various out of court statements that had been
made of which evidence was given which, had the
jury adopted this direction, would have been excluded
from the jury's consideration.
His Honour Mr Justice Kennedy, however, said

half-way down that page:
I am not persuaded that this would have

been the case. I consider it far more likely
that the jury would have regarded out of
court statements by the appellants as
constituting part of "what they did", for
they could not possibly have believed that
his Honour was intending to convey to them
that, when he said that the appellants
"have not said anything", the appellants had
said nothing out of court.

With respect, what the jury may well have taken from
the direction given there by the trial judge was that
the things that were said in terms of drawing
inferences and intention were confined to things which
were said in court and since the accused had not said
anything in court, therefore the jury could only draw
inferences from the things that were done, evidence
of which was given, that is, the transactions that
took place in the documentation.
That is the problem and, with respect, to say

what is more likely in terms of a direction to a jury
in a criminal trial to say that it is more likely that
the jury would have taken one view than another is to
highlight the insufficiency of the direction that is
given to the jury which should be clear and not
one which is simply explicable or supportable in
terms of what it is likely or more likely that the

jury would have taken the direction to mean.
Your Honours, at this stage they are the special points that I wish to advance on behalf of the
applicant.

MASON CJ: Very well, Mr Mccusker, in those circumstances it
will be appropriate if we take a short adjournment and
decide what course we will take in relation to the
matter.

AT 12.23 PM SHORT ADJOURNMENT

C2T40/l/BR 49 10/2/89
Briggs
UPON RESUMING AT 12.30 PM:

MASON CJ: The Court need not trouble you, Mr Davies.

MR DAVIES: May it please the Court.

MASON CJ: We are not persuaded that the circumstances
of this case are such as to raise any question
of general principle that would warrant the

grant of special leave to appeal. The application
for special leave is therefore refused.

next Tuesday. The Court will now adjourn until 10.15 am

AT 12.31 PM THE MATTER WAS ADJOURNED SINE DIE

C2T41/l/JM 50 10/2/89
Briggs

Key Legal Topics

Areas of Law

Criminal Law
Statutory Interpretation

Legal Concepts

Appeal
Charge
Sentencing
Statutory Construction

Actions

Download as PDF Download as Word Document

Citations

Briggs v The Queen [1989] HCATrans 13

Most Recent Citation

Hill v The Queen [2003] WASCA 177

Cases Citing This Decision

3

Carr v The State of Western Australia [2016] WASCA 78

Hillstead v The Queen [2005] WASCA 116

Hill v The Queen [2003] WASCA 177

Cases Cited

0

Statutory Material Cited

0

did not so direct, although he was asked to do so.	He
quoted at the end of his directions to the jury from
defence counsel's closing remarks to the jury which,
indeed, did contain that proposition.	He quoted from

MR McCUSKER:	I will endeavour to do so, Your Honour. It 1s a bit out of sequence, but I will certainly - - -
DEANE J:	I am not trying to take you out of sequence.
MR McCUSKER:	No, I understand that.
DEANE J:	I am just trying to help you identify a problem

DEANE J:	Well, you deal with it your way.
MR McCUSKER:	If I could explain just a little further,

in the trial itself.	So our submission, Your Honour,
is that - -

BRENNAN J:	So the special leave point - - -
MR McCUSKER:	Is whether there is any distinction.
BRENNAN J:	The special leave point is whether, if that

BRENNAN J:	And to construe it?
MR McCUSKER:	That is so, Your Honour.

accused	went on to property which was not theirs
and they were the bare facts adduced, the Crown would

was a dishonest disagreement.	The Court of Criminal
Appeal has endorsed that approach.	Although

BRENNAN J:	It depends on the facts, surely.
MR McCUSKER:	Well, on those bare facts, in our submission, the trespass alleged not being trespass to the car as a bald proposition,in our submission, it would be untenable to suggest that the dishonesty which is
relevant there to that charge, if there be - enable
the introduction of evidence of that nature.

BRENNAN J:	Is it not relevant to show the circumstances under which the company's assets were evacuated?
MR McCUSKER:	The fact that the companies' assets were

evacuated, that bald fact is itself sufficient to
establish the deprivation.	The question is, "Has

least, that was the issue, whether a tractor which was
used on the property was a stolen tractor.	Now, it may

DEANE J:	I mean, for example, there was a full and accurate
direction on onus of proof at at least one stage
of the directions.
MR McCUSKER:	There was, Your Honour, yes.
MR McCUSKER:	And the complaint identified is at the end

at page 117 - that is a typographical error there -	the judge referred to matters being prudent 11 to
the standard I have just talked to you about." reasonable people so it is in a different context.
That, perhaps, can only be categorized as tending to confuse.

C2T26/l/ND	31	10/2/89
Briggs
DEANE J:	I do not understand that.	I mean, would not

MR McCUSKER:	Yes, in mental processes, I accept that that is so, Your Honour, but it is a question
whether that is seen as the task or whether the task is primarily a task of determining whether the proven facts point to the inference sought
to be drawn by the Crown as being the only
inference that could reasonably be drawn.
DEANE J:	I cannot see anything wrong with that, I am
sorry. If it is to be interpreted as saying,
"Don't bother about proof beyond reasonable doubt
but concern yourself only with, 'Is there a reasonable
hypothesis consistent with innocence?"', I can see the force in what you say but unless it is that it seems to me to be a completely proper
direction.
MR McCUSKER:	The cavil which we have with it, Your Honour,

BRENNAN J:	Mr Mccusker, in my day that was the call, the catch-cry of defence counsel and I thought it
came from PEACOCK's case.
MR McCUSKER:	I will not pursue that point as it is not the

DEANE J:	But reading through all those, it does seem to come down to the confusing and inadequate rather than
plain wrong, does it not?

confusion of a central issue, an important issue	far as I am aware, has ever been advanced before in terms of rectifying a defect or inadequacy or
such as standard of proof, by saying that there has been an undue harshness on the prosecution.

principle raised by your submission.	We are not
embarking on the hearing of the appeal.

[1989] HCATrans 13

Key Legal Topics

Areas of Law

Criminal Law

Statutory Interpretation

Legal Concepts

Appeal

Charge

Sentencing

Statutory Construction

the agreement that was made or was it	something
that was a new development?

to the various returns and ·the- director	of the various
companies.	But in terms of his total business

BRENNAN J:	I am indebted to you, thank you.
MR McCUSKER:	So it was that kind of evidence which was

prevented from being adduced and furtherm:,re,	the
ruling of the trial judge was that all of that

C2T37/l/SH	45	10/2/89
Briggs
MR McCUSKER:	No, Your Honour, no there is not.	The ruling

MR McCUSKER:	Own state of belief.
GAUDRON J:	- - - own state of mind, own state by which one

that is not what is meant by inferring
intention from words and conduct.	The

MASON CJ:	The Court need not trouble you, Mr Davies.
MR DAVIES:	May it please the Court.
MASON CJ:	We are not persuaded that the circumstances