Campbell, Robert George v The Queen Barker, Terence Francis v The Queen

[1996] FCA 809

CATCHWORDS

CRIMINAL LAW AND PROCEDURE - appeal against convictions - unsafe and unsatisfactory verdicts - assessment of evidence and weight of evidence.

EVIDENCE - reliance on and use of documents tendered during course of trial - no objections taken at trial - no complaint of prejudice - no miscarriage of justice.

JURY - allegation of possible theft of money from a locker in the juryroom - whether ground for discharge of jury.

BIAS - allegation of bias and prejudice against trial judge - no complaint made during course of trial.

SENTENCE - appeal against - retrial - lesser number of charges and effect thereof on length of sentence - time spent in prison as a result of convictions on first trial.

Barker v The Queen (1994) 54 FCR 451
M v The Queen (1995) 69 ALJR 83
Chidiac v The Queen (1990-1991) 171 CLR 432
R v Allsop (1976) 64 Crim App R 29
Wai Yu-tsang v The Queen [1992] 1 AC 296
Webb v R; Hay v R (1994) 122 ALR 41
Vakauta v Kelly (1989) 167 CLR 568
Dickason v Edwards (1910) 10 CLR 243
Wakefield Local Board of Health v West Riding & Grimsby   Railway Co 122 ER 1386
R v Sarek [1982] VR 971
R v Nardella [1971] VR 217
Balic (No2) (1994) 75 A Crim R 515
Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879
Davison v Vickery's Motors Ltd (In Liquidation) (1925)    37 CLR 1
The Queen v Morse (1979) 23 SASR 98
R v Tait and Bartley (1979) 24 ALR 473
Elliott v Harris (1976) (No2) 13 SASR 516
The Queen v Hunter (1984) 36 SASR 101
Gilmore [1979] 1 A Crim R 416

No. ACT G 19 of 1996

ROBERT GEORGE CAMPBELL  Appellant
-and-
THE QUEEN  Respondent

-AND-

No ACT G 18 of 1996

TERENCE FRANCIS BARKER  Appellant
-and-
THE QUEEN  Respondent

O'Loughlin, Finn and Madgwick JJ
Canberra
11 September 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )    No ACT G 19 of 1996
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE SUPREME COURT OF
             THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

ROBERT GEORGE CAMPBELL
  Appellant
  - and -

THE QUEEN
  Respondent

Coram:    O'Loughlin, Finn and Madgwick JJ
Place:    Canberra
Date:     11 September 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

That the appeal be dismissed.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )    No ACT G 18 of 1996
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE SUPREME COURT OF
             THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

TERENCE FRANCIS BARKER

Appellant
  - and -

THE QUEEN

Respondent

Coram:    O'Loughlin, Finn and Madgwick JJ
Place:    Canberra
Date:     11 September 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

That the appeal be dismissed.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )    No ACT G 19 of 1996
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE SUPREME COURT OF
             THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

ROBERT GEORGE CAMPBELL
  Appellant
  - and -

THE QUEEN
  Respondent

IN THE FEDERAL COURT OF AUSTRALIA )
  )   
AUSTRALIAN CAPITAL TERRITORY     )
  )    No ACT G 18 of 1996
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE SUPREME COURT OF
             THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

TERENCE FRANCIS BARKER

Appellant
  - and -

THE QUEEN

Respondent

Coram:    O'Loughlin, Finn and Madgwick JJ
Place:    Canberra
Date:     11 September 1996

INDEX

Background   1

Mr Campbell's defence   6

Mr Campbell's Grounds of Appeal   6

The fifth and sixth grounds of appeal -

Unsafe and Unsatisfactory verdicts -
     Convictions against the weight of the evidence       7

Count 1 - The Teckvest agreements   9  

Count 2 - The pink Argyle diamonds transaction  26

Count 4 - The conspiracy charge  31

Count 3 - The September meeting  33

The amount of the Chaplins' tax liability                36

Teckvest's retention of the programs  38

Dispatch of documents  39

First Ground of Appeal - Documentary Evidence            41

Second Ground of Appeal - The jury-room incident             52

Third Ground of Appeal - The Restaurant Incident             58

Conclusion

Mr Barker's appeal against sentence  70

REASONS FOR JUDGMENT

The Court

Background

Appeals against conviction by Robert George Campbell and against sentence by Terence Francis Barker.

On 16 October 1995, Robert George Campbell and Terence Francis Barker were arraigned on the one indictment.  The charges that had been laid against them arose out of the manner in which they had, during 1989, conducted themselves in their capacity as professional advisers to Ellen Elizabeth Chaplin and her husband Christopher John Chaplin.  Mr Campbell had acted as their solicitor and Mr Barker, a chartered accountant, had given them accounting and taxation advice.

Mr and Mrs Chaplin, who had for several years up to 1989 conducted a jewellery business in Canberra, had made a practice of lodging false income tax returns.  They consulted Mr Barker in December 1988 when they learned that the Australian Taxation Office ("the ATO") had commenced an investigation into their affairs.  The Crown case was that Mr Barker formulated a plan whereby the Chaplins would enter into agreements ("the Teckvest Agreements") with a United Kingdom company, Teckvest Pty Ltd ("Teckvest").  Under two agreements they would acquire, at a total cost of $3.5m, computer programs for use in foreign currency trading.  The

plan, on the Crown case, was a sham and a device to remove the Chaplins' money from the jurisdiction and out of the reach of the ATO.  Although the computer programs existed, they were of little value.

Teckvest was controlled by a man named Hillsdon, a friend of Mr Barker, who offered, for a fee, to hand back the money to the Chaplins upon their arrival in the United Kingdom.  Mr Hillsdon collected the money but refused to hand it over to the Chaplins on their arrival in the United Kingdom.  Mrs Chaplin, understandably upset, decided to return to Australia and confess to the ATO.  Mr Chaplin, not sharing his wife's change of heart, stayed in England.  He has not been charged; his whereabouts are apparently unknown.

Mrs Chaplin was charged with and pleaded guilty to five counts of defrauding the Commonwealth, two counts of imposition and one count of conspiracy to pervert the course of public justice.  The first seven charges related to the lodgment of false income tax returns and the charge of conspiracy covered her involvement in the fraudulent activities that were said to have been orchestrated by her solicitor and accountant.  Mrs Chaplin freely co-operated with the authorities without benefit of immunity.  She secretly tape-recorded conversations with her alleged conspirators and gave evidence at their trials on behalf of the prosecution.  Mrs Chaplin received a suspended sentence of imprisonment.

Messrs Campbell and Barker were first tried, together with Mr Campbell's wife, Janice Harper, in February 1994.  There was a total of nine charges in the indictment; all three pleaded not guilty to all charges.  Mr Campbell faced, jointly with Mr Barker, two charges (count 1 and 2) of defrauding the Commonwealth; those charges related to or arose out of the Teckvest agreements and another transaction which, for identification, can be referred to as "the pink Argyle diamonds transaction".

Mr Barker was convicted on both counts but the jury failed to agree on verdicts with respect to Mr Campbell.  Mr Campbell separately faced a third charge of defrauding the Commonwealth.  That charge related to his alleged involvement in misrepresenting to officers of the ATO at a meeting with them on 4 September 1989 the financial ability of the Chaplins to pay their assessed tax and penalties ("the September meeting").  But once again, the jury could not agree.

In the fourth count Messrs Campbell and Barker were jointly charged with perverting the course of public justice.  This charge arose as a result of their alleged involvement in the presentation or use of a false affidavit in the name of Mrs Chaplin in proceedings in the Supreme Court of the Australian Capital Territory ("the conspiracy charge").  Mr Barker was convicted but the jury could not agree with respect to Mr Campbell.

Mr Campbell and his wife were the subjects of the fifth count.  It concerned their sham purchase of the Chaplin's business, "Precious Jewellers".  Both were convicted and their subsequent appeals were dismissed.  Counts six, seven and eight referred to Mr Barker alone.  Counts six and seven dealt with the contents of his income tax returns for the 1990 and 1989 financial years; it was alleged that each was false in a material particular.  The jury failed to agree on count six but  a conviction was recorded on count seven.  Counts 8 and 9 were charges of organised fraud against Mr Barker and Mr Campbell respectively.  Mr Barker was convicted on this charge but the jury were unable to reach a verdict in respect of Mr Campbell.

Mr Barker successfully appealed against all convictions when it was ascertained that copies of some records of interviews (that had been marked for identification during the course of the trial but had not been received as evidence in the trial) had been made available to the jury during the course of their deliberations:  Barker v The Queen (1994) 54 FCR 451. A new trial was ordered and Mr Barker was duly re-arraigned. Mr Campbell was also re-arraigned in respect of the four charges where the jury had been unable to reach verdicts.

In presenting the second indictment with five counts (as compared with the previous nine) the Crown chose not to charge Mr Barker and Mr Campbell with the offence of organised fraud (the former counts eight and nine).  The Crown also decided not to charge Mr Barker with respect to his 1990 income tax return (the former count six).  The remaining count that was not reproduced in the new indictment was that on which convictions had earlier been recorded against Mr Campbell and Ms Harper.

On the retrial the jury returned their verdicts on 6 December 1995.  Messrs Campbell and Barker were convicted on counts one and two relating to the Teckvest agreements and the pink Argyle diamonds.  Mr Campbell was convicted on count three and both men were convicted on count four.  Those counts dealt respectively with the September meeting and the conspiracy charge.  The fifth and remaining count related to the contents of Mr Barker's 1989 income tax return; on this count the jury could not agree.

Both Mr Campbell and Mr Barker were sentenced on 26 February 1996.  Mr Campbell was sentenced to three years imprisonment on each of the first three counts and four years imprisonment on the conspiracy charge.  Mr Barker was sentenced to four years imprisonment on each of the first two counts and three years imprisonment on the conspiracy charge.  All sentences were to be served concurrently as from the date of sentencing and a non-parole period of eighteen months was fixed from that day.  The learned sentencing judge ordered that Mr Barker serve his term of imprisonment in a minimum security gaol without hard labour.  In determining the length of Mr Barker's

non-parole period, his Honour had regard to the fact that Mr Barker had served somewhat in excess of five months in prison as a result of his convictions on his first trial.

Mr Campbell has appealed against his convictions but not against sentence.  Mr Barker has not appealed against his convictions but has appealed against sentence.  The appeals were heard consecutively but it is convenient to deal with both matters in the one set of reasons commencing with Mr Campbell's appeal against convictions.

Mr Campbell's defence

Mr Campbell's defence was one of lack of knowledge of any criminal conduct on the part of the Chaplins and Mr Barker.  His position can be simply stated:  he received his clients' instructions and acted in accordance with them.  Those instructions were to the effect that the Teckvest agreements and the pink Argyle diamonds were genuine commercial transactions.  Hence his involvement in the presentation or use of the affidavit in the Supreme Court proceedings (the conspiracy charge) and his statements to the ATO officers at the meeting of 4 September 1989 were made innocently and without knowledge of any falsity.

Mr Campbell's Grounds of Appeal

There were six grounds of appeal in Mr Campbell's Notice of Appeal.  The first concerned certain documents; it complained about the evidence that dealt with the date on which and location from which those documents were seized by the police.  The second related to an incident that occurred in the juryroom during the course of the trial which, claimed the appellant, should have caused the trial judge to discharge the jury and order a mistrial.  The third ground alleged bias and prejudice on the part of the trial judge.  The fourth ground was abandoned.  The fifth and sixth grounds can be dealt with together.  They alleged that the verdicts were against the evidence and the weight of the evidence and that they were unsafe and unsatisfactory.  Because of the need to set out the material facts in greater detail, it is convenient to deal first with these last mentioned grounds.

The fifth and sixth grounds of appeal -

Unsafe and unsatisfactory verdicts - Convictions against the
weight of the evidence -

The most recent High Court authority on this subject is M v The Queen (1995) 69 ALJR 83. It shows that these two grounds of appeal are, in effect, alternative forms of the same complaint. In their majority judgment Mason CJ, Deane, Dawson and Toohey JJ commented that:-

"(w)here a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently

does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory.  Other terms may be used such as "unjust or unsafe", or "dangerous or unsafe". (p85)

The principles upon which this Court must act in considering these grounds of appeal are clearly set out in the joint majority judgment in M v The Queen (supra).  Their Honours observed that in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced:-

"It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above." (p86)

In order to assess the four verdicts it is necessary to analyse the evidence that was available for the jury's consideration.  This is best done by taking each verdict in turn.

Count 1 - The Teckvest agreements

The case for the Crown with respect to this count was that Mr Campbell knew and understood the falsity of the Teckvest agreements and helped in the preparation of the sham documentation.  Mrs Chaplin had spoken to Mr Barker of her fear that she and her husband would lose substantial assets and possibly face incarceration as a result of the income tax investigation the Chaplins faced.  She gave evidence that some time in February 1989 Mr Barker told her of his friend in the United Kingdom, Vincent Hillsdon.  Mr Barker's plan was to send an amount of money out of the country to Mr Hillsdon so that he and the Chaplins could test whether such a remittance would evoke any reaction from the ATO.  It was an essential part of this plan that Mr Hillsdon would, for a fee, return the money to the Chaplins in due course.  These were said to be the circumstances in which $33,000.00 was remitted to the United Kingdom on 20 February 1989 on behalf of the Chaplins.

The events of 5 May 1989 were critical to the case for the Crown as it was said to be the commencement of Mr Campbell's criminal involvement.  Until then, the Crown accepted that his conduct had been that of a legal adviser acting legitimately in the interests of his clients.  By May the Chaplins had amassed substantial amounts of cash as a result of their sales of various parcels of real estate.  It was on 5 May that Mr Barker put the plan for the Teckvest agreements to Mrs Chaplin and obtained her approval in principle subject to her seeking Mr Campbell's advice.  The matter was becoming urgent as the ATO was continuing its investigation and Mrs Chaplin was anxious to obtain Mr Campbell's advice.  On the same day she attended at Mr Campbell's office and, according to her evidence, Mr Barker explained the details of the Teckvest agreements to Mr Campbell in her presence.  Her evidence in chief on the disclosure of the details of the scheme to Mr Campbell was:-

"That Terry [Barker] said that he had a friend, the name of Vin Hillsdon, who's been a long time friend, who has a computer that operates currency trading ... and that it was possible for us to come up with a contract for the Chaplins to buy this computer program, this currency trading program, and they could -the money would be sent to Hillsdon and for a fee he would then return that money to us when we went to England and that the contract would be - it would look a legitimate commercial contract."

Mrs Chaplin continued in her evidence with a summary of the matters that were discussed with Mr Campbell in his office on that occasion.  For example, she claimed that Mr Barker and Mr Campbell agreed that it would be necessary to create "historic records".  When asked to explain what she meant, she replied:-

"Because it was necessary to show some history with this negotiations, I mean, the fact that we had agreed to make the contract on that day, it was necessary to have negotiations before that date, leading up to that date, so files were made-or it was agreed that files should be made."

Detailed evidence was then led through Mrs Chaplin about the file of papers and notes that was allegedly compiled.  These records went back as far as 19 September 1988 presumably to give an air of authenticity and commerciality to the transaction.

There was, in addition, evidence that pointed to Mr Campbell having prepared false file notes for inclusion in his office papers.  For example, it was common ground that Mr Barker accompanied Mrs Chaplin on 5 May 1989 when she called on Mr Campbell at his office and first instructed him with respect to the Teckvest agreements.  Yet there was a file note of that date which referred to the conference but made no mention of Mr Barker being present and a second file note of the same date referring to a phone conversation between Mr Campbell in which he told Mr Barker of the conference and Mrs Chaplin's instructions as if Mr Barker had not been present.  This note read in part:-

"Attend on Mr Barker on telephone advising him of Ellen Chaplin's instructions.  He was concerned about the possible appearance of divestment of assets...  We informed him that Ellen had assured us that that was not the case and it was a legitimate business transaction..."

According to the Crown case Mr Campbell suffered a lapse of memory about Mr Barker's presence at the conference when, at some later date, he concocted these false entries.  It is a legitimate question to ask why Mr Campbell would have had a need to ring Mr Barker with this information if, as was the fact, Mr Barker had been present when Mrs Chaplin gave her instructions to Mr Campbell.

In addition to the exercise of allegedly preparing a false trail of documents to support a history of negotiations, the Crown alleged that Mr Campbell, also on 5 May, commenced preparing agreements relating to the sale and purchase of the computer programs.  An amount of $500,000.00 was telegraphically transferred to Mr Hillsdon as part of the overall scheme.  This payment was required as a deposit pursuant to the first of the agreements that Mr Campbell was preparing.  Later, on 19 May, Mr Campbell sent a further $210,000.00 out of his firm's trust account to Mr Hillsdon.

It is, of course, patently clear that the evidence of Mrs Chaplin was central to the Crown case.  She was trenchantly attacked by the defence.  It was put to her, for example, that she was spurred on to give evidence against Mr Campbell because he and his wife had not paid her all the moneys that they owed on the purchase of the jewellery business.  She admitted that she had not received all her money but denied that she was motivated out of spite.

There were areas in her evidence where, so it was claimed, her memory was deficient.  She was tested about the vital meeting with Mr Campbell at his office on 5 May 1989 when, on the Crown case, Mr Barker laid out the details of the Teckvest agreements.  Mrs Chaplin said that she did not remember the exact details of the conversation, only "the gist" of it.  This, so it was said, made her evidence unreliable.

There is no doubt that occasions arise "when a jury proceeds to a conviction when the Crown case rests on oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree":  Chidiac v The Queen (1990-1991) 171 CLR 432 at 444 per Mason CJ. It was in Chidiac's Case (supra) where members of the High Court said that an appellate court will not discharge its responsibility by finding that there was evidence sufficient to entitle the jury to convict, because a verdict may be unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted:  see Mason CJ at 445 and McHugh J at 461.

But the Crown case was not limited to the evidence of Mrs Chaplin alone; there was other evidence mostly in the form of various documents, from which corroborative support could be obtained.  In addition, there were events, such as the preparation by Mr Campbell of the Teckvest agreements. Taken alone, that exercise contained no sinister overtones. But, claimed the Crown, it took on a different complexion when assessed within the whole framework of the Crown case.  The Crown queried how a Canberra solicitor, with no knowledge of the base details of the computer programs, would prepare contracts involving $3.5m without detailed consultation with the vendor and the vendor's legal advisers.  In such circumstances might not one have expected the vendor to have submitted a draft contract to the purchasers for their consideration and that of their advisers?  The Crown also questioned whether it was normal business practice to remit a deposit of $500,000.00 before the contracts were signed.

The Crown relied heavily upon a letter from Mrs Chaplin to Mr Campbell dated 18 August 1989.  It amounted, according to the Crown, to confirmation that Mr Campbell knew of an arrangement whereby the Chaplins were expecting substantial sums of money to be available to them in the United Kingdom.  Although this letter did not mention Teckvest or Hillsdon by name, other correspondence confirms that it could only be referring to them.  At that stage, Mrs Chaplin was still in Australia but her husband, Chris, was then in the United Kingdom.  The first section of that letter read as follows:-

"Chris phoned this morning.  He says that it appears that his funds are still not in the account he was expecting it to be in.  He is furious and says that he has to make payment for something and has no funds to do so.  As well as the fact that he still has not got access to the funds he expected to.

What I am unclear about is where is the balance of the monies after approximately $500,000 - has been taken out to convert to US400,000 - to trade with."

The reference to "trade" was acknowledged by the Crown as a reference to the fact that as part of the sham, and in order to cloak it with commercial reality, Teckvest or Mr Hillsdon would carry out some currency trading on behalf of the
Chaplins.  This therefore explained the reference to the amount of $500,000.00.  In fact clause 7 of each of the contracts for sale that comprised the Teckvest agreements authorised "Teckvest Limited to deposit the equivalent of AUS $250,000 into a trading account "and" to apply these funds to currency trading transactions" using the computer programs.  These most unusual clauses do not stand up to scrutiny.  Each contract was expressed to be a contract for the sale and purchase of computer programs.  Each contract stipulated a price and a method for the payment of that price.  Neither contract called upon the purchasers to place additional funds in the hands of the vendor for the purpose of trading.  Rather each contract, read literally, required the vendor to apply $250,000.00 of its sale price to a trading account for the benefit of the purchaser.  At best these are examples of very inadequate drafting; at the worst they are evidence of a false transaction in which documents were prepared with reckless disregard for the truth.

Mr Campbell acknowledged in cross-examination that he had received Mrs Chaplin's letter of 18 August 1989.  His evidence about its significance was most unsatisfactory:-

"Well, you must have been beside yourself, Mr Campbell, when you read that?...Why would I be beside myself?

Well, things were obviously going wrong, weren't they?...Mr Chaplin obviously wanted to get hold of some funds, yes.  He had a large bill apparently.

And no-one knew where the money was, it would appear?...I don't think that's correct.

Well, did you respond to this?...No, I don't believe I did.

Why not?...I don't know what response would be there for me to make, it's not something that I'm involved in."

That letter of 18 August and Mr Campbell's admission that he received it was direct evidence that he knew, at least on or shortly after that date, that the Chaplins were asserting some claim to moneys under the Teckvest agreements.

There were a number of transmissions that Mrs Chaplin said she sent to Mr Campbell after her arrival in the United Kingdom.  Most dealt with the difficulties she was having in retrieving her funds from Mr Hillsdon; some also referred to the diamonds.  According to the evidence of Mrs Chaplin, her form of communication was mainly typed letters that were sent by facsimile transmission.  She retained copies of her correspondence and those copies were tendered in evidence through her.  Despite the execution of search warrants at the offices of Mr Campbell's firm, Scott Campbell Shiels and elsewhere, the counterparts of the greater number of these facsimile transmissions were not located.  What follows is a summary of relevant extracts from some of those transmissions.  Their worth is to be assessed upon Mrs Chaplin's evidence that they were transmitted to Mr Campbell on or about the dates appearing on them and upon Mr Campbell's denials that he received them.

In making that assessment there are however, three letters from Mr Campbell to Mr & Mrs Chaplin that should be mentioned.  The date of the first of them is not reproduced in the Appeal Book.  It commences with the words "Thank you for your recent fax's".  It then refers to "Vin's entrenched attitude" thereby suggesting, having regard to Mrs Chaplin's transmissions, that it was written sometime in the latter part of the period that is covered by Mrs Chaplin's letters and to which reference is made below.  The second was transmitted on 20 October 1989 in which he said that he had not been keeping records for "obvious reasons". Then again, on 15 November 1989 Mr Campbell wrote to Mrs Chaplin:-

"One would expect that now Vin has moved the funds from his personal account they should have flowed onto you as per your instructions. It's cute that he does not say when the moneys went to Teckvest."

In a letter to Mr Campbell dated 12 September 1989 Mrs Chaplin wrote that Mr Hillsdon was "polite" but "hard to budge".  She said that she might have to get Mr Campbell to "play the hard line".(p182)  It was in that letter that she also made mention of the fee of $450,000.00 "paid to him "(i.e. Mr Hillsdon)" for this transaction".  One may well wonder why the purchaser of a product would pay the purchase price to the vendor and then refer to part of it as a "fee".  Subsequent transmissions on 13 and 14 September from Mrs Chaplin to Mr Campbell reported on Mr Hillsdon's explanations:-

"I asked him where the first 3 sums money are (refer to Terry's financial breakdown) 500,000 + 85,000 + 210,000.  He said some was used to convert to US$ for trading ($520,803) & some Teckvest fees.  He said Terry told him to take his fees from the initial funds sent.

...

I asked him what he considered his fee was for.  He said for creating the service to transfer funds for us."

Perhaps the clearest disclosure comes in the form of a letter of 21 September 1989 from Mrs Chaplin to Mr Campbell:-

"Vin says it seems very likely that he will be liable for tax for the 3 1/2m that went into his account and it is a real possibility that he may need to leave the country, which his wife is against.

I told him that we are very stressed over this matter.  Everyone has had their commissions but we still haven't got our funds.  He said he too was stressed."

If Mr Campbell was an innocent pawn in a plan concocted by Mr Barker and implemented by Mr Barker and the Chaplins with the connivance of Mr Hillsdon how would a person in Mr Campbell's position react to such a correspondence?  Putting to one side the proposition that Mr Hillsdon might have to pay tax (which was probably his excuse for failing to hand over funds to the Chaplins) how would Mr Campbell react to the statement "...but we still have not got our funds"?  What funds?  As purchasers, the Chaplins were not entitled to any funds.  It is unlikely, because of the reference to "the 3 1/2m", that Mrs Chaplin would have been referring to moneys the in the currency trading account.

One of the most important pieces of evidence on the Crown case was a two page memorandum in Mr Barker's handwriting.(pp178-179)  It set out particulars of the moneys that had been remitted to Mr Hillsdon on the Chaplins' behalf and the dates of those remittances.  It then listed all "costs" "fees" and "commissions" and concluded with an entry:-

"Balance to be accounted for $2,948,613."

As the Crown submitted, if in truth, the Chaplins were making a commercial acquisition of computer programs for a sum of $3.5m (of which, according to this memorandum, $3,359,000.00 had already been remitted) there would be no "balance to be accounted for".  This memorandum constituted tangible documentary evidence supporting Mrs Chaplin's evidence that the Teckvest agreements were a sham.  Although he denied any contemporaneous knowledge of this memorandum, there was evidence that it had been sent by facsimile transmission to Mr Campbell's office.  There was also evidence that a copy of the transmission had been seized by the police when they executed a search warrant at Mr Campbell's office premises.  Mr Campbell was cross-examined at length about Mr Barker's memorandum.  Although the passage is lengthy, it goes to the heart of the matter and warrants reproduction:-

"But you surely looked at it, Mr Campbell?...No I did not.

Well, it came to your office?...Yes, it apparently did, yes.

It's got your client's name on the top of it, Mr and Mrs Chaplin?...That's correct.

And it's in the handwriting of Mr Barker, who was the accountant in the matter?...Yes, it appears to be his writing.

And it's a summary of remittances to the United Kingdom?...Well, that's what you're telling me, and that's something I've heard in these proceedings, but this document came to our office, and it's on the file, and as I understand it, and I'm only giving an opinion so it may not go any further, it was something that we run the post office box for.

Did you not read this document?...No, I did not, even now.

...

Just let me understand?...Yes.

This is a document compiled by your client's accountant about transactions that your clients had been involved in.  Am I right so far?...Well, it's a document . . .

Is that right so far?...No, I don't know if that's totally correct.  When I received this document at our office, I don't have a recollection that I was invited to comment or it had any significance to me.  I'd provided some information to the Chaplins, as I understand it, in relation to funds that had been telegraphically transferred to the United Kingdom, and our office was regularly used as a post office box for Mrs Chaplin or their accountant, and it's my view that this is material that came through our office at some stage, but it wasn't material that was for my attention or my involvement.

But it contains a breakdown, as I was starting to put to you, of a total of $3.3 million, which is the money that went out of your trust account to Hillsdon?...That's what it - on reading it, yes, that's what it appears to contain, yes.

And it's a document from, with the printed letterhead at the top, Touche Ross?...I think it's a document from Mr Barker.

Yes, but there's no doubt about who created this document?...I don't have any doubt about it, no.

And it was on your file?...That's correct.

And you say you didn't run your eye over it?...No, I did not.  It's none of my business.  It's not to do with me.  I'm not involved in their trading, I'm sorry."

It was a matter for the jury to consider whether Mr Campbell's evidence about his lack of knowledge of this document might conceivably be the truth.  If the jury rejected his evidence and were satisfied that he not only read it but read it and digested its contents, it became very incriminating evidence against Mr Campbell.

The jury were aware of Mr Campbell's defence.  They were aware that he denied receiving incriminating items of correspondence from Mrs Chaplin; they were also aware that he denied seeing Mr Barker's memorandum until some time after the police commenced their inquiries.  They had the opportunity to assess the possibility that he might have been an innocent party and that his correspondence to and from the Chaplins was capable of an innocent explanation.  Having regard to Mr Campbell's role as the Chaplin's legal adviser, to the contents of the letters that he had written and to the contents of the letters from Mrs Chaplin which he acknowledged having received and read, and without having regard to the disputed correspondence, there would have been ample evidence to justify the jury's verdict.  It could not be suggested that such a verdict was unsafe or unsatisfactory, or that it was against the evidence and the weight of the evidence.  The jury would also have been justified if they had come to the conclusion that they were satisfied that Mr Campbell had, in fact received the disputed correspondence.

In addition, consideration must also be given to the contents of the taped recording of the conversation that Mrs Chaplin had with Mr Campbell at his office on 8 April 1991.  In considering the weight to be attached to this conversation it must be remembered that Mrs Chaplin did not, at any stage, make any direct or specific reference to criminal conduct - either on her part or on the part of Mr Campbell or anyone else.  Furthermore, she talked to Mr Campbell as one who was totally familiar with the history of the matter.  In that context and against that background, the members of the jury had to make their assessment of the following items of conversation:-

"Mrs Chaplin: "...And I mean Vin's got all our money.  Um"

Mr Campbell:  "Did Terry come up with any suggestions?"

...

Mrs Chaplin:  "... there is no way in the world that I will write and say it was a, you know that was the actual agreement when in fact it wasn't the actual agreement"

Mr Campbell:  "What, what's he saying, what is Terry saying now?"

...

Mrs Chaplin:  "Yeah I mean in the last, you know few weeks or so, Chris seems to think that he's moved from that place.  But, but what

I want to know what can we do to get our money, you know the actual agreement, you know."

Mr Campbell:  "Well I have, I don't have any answers for you in relation to that, Teckvest have gone into  correspondence as you know."

Mrs Chaplin:  "Mm."

Mr Campbell:  "And Terry would know from his own association, cause he's clearly had an association with them, in the past whether they are genuine or not in terms of wanting to even resolve it, but it seems to me that, at least I've heard it one other person that's been involved with this Teckvest crowd that hasn't got anything back."

...

Mrs Chaplin:  "Yeah, but I mean Robert, you know what the actual agreement was and Terry knows what the actual agreement was I mean I'm I'm coming to you as, you know as knowing what the actual situation is or what our actual agreement was, and you know and I know that he is hiding behind the Teckvest and behind the whole contract, but but I I want to do something about him honouring our actual agreement, giving us our money back."

Mr Campbell:  "Well your agreement, the difficulty I've got is that the agreement had a particular character, and the character of it has changed and the people that were involved in, clearly have changed their views about what was going on, Teckvest, have adopted a particular view, that they're not going to ...."

Mrs Chaplin:  "But we never had an agreement with Teckvest I mean we we had."

Mr Campbell:  "Well."

Mrs Chaplin:  "We had a written contract that was written up to serve a purpose, right but

our actual, I'm talking about our actual agreement with HILLSDON."

Mr Campbell:  "Well what ever that was, it was clearly something between Terry and HILLSDON, if that's the case, it seems to be that the contact in relation to the business connection that you developed"

Mrs Chaplin:  "Yeah"

Mr Campbell:  "Was Terry and HILLSDON, wasn't it?"

Mrs Chaplin:  "Well it was Terry's idea to do, to transfer the funds out of the country in this way, right."

Mr Campbell:  "But they."

Mrs Chaplin:  "It was Terry's idea and he had his friend over in England to do it, right, you know the that fitted in, it seemed to fit in quite well, but you know our actual agreement was that you know for his extortionate fee of four hundred thousand and you know and then his, Terry's fee of forty five and then your fee of seventy nine."

Mr Campbell:  "Well hang on, hang on a moment there were some fees that we got paid."

Mrs Chaplin:  "Mm."

Mr Campbell:  "We were told that you um um, a Taxation issue at the time."

Mrs Chaplin:  "Yeah."

Mr Campbell:  "Both fees were consumed in relation to that, they, those figures were involved in urgent representation of counsel, expenses you remember, we, counsel was paid."

Later in the interview, Mrs Chaplin referred to "my affidavit" in the context that someone had told her that she had committed perjury.  According to the transcript she added:-

"...I almost fell off the chair, because perjury means something to me."

It may have been Mrs Chaplin's solicitor in the United Kingdom who gave her advice about perjury and the advice may have related to Mrs Chaplin's affidavit that was used in the Supreme Court proceedings.  Neither fact is clear.  What is clear however is that Mr Campbell responded in a most unusual
manner.  He expressed no concern, no shock and no surprise.  Rather, he gave her an explanation about affidavits, telling her how they were treated as evidence:-

"...it's all given under oath whether it's, if it's oral and it's given from the dock it's sworn on the bible and you hold the bible up and take the oath, if it's in an affidavit it's sworn on an affidavit, in much the same way and that carries the same responsibility, what they've told you is correct."

Later in the conversation Mrs Chaplin referred to the risk of the police wanting to question her.  Mr Campbell firmly advised her that she was under no obligation to answer any questions and that it would be in her best interest not to answer any questions.  That was conventional legal advice and no sinister overtones would be attached to it.  However, towards the end of that particular subject Mrs Chaplin asked:  "What am I going to say about Teckvest"?  Mr Campbell's reply moved away from conventional legal advice that she should say nothing.  Instead he replied:-

"I I have no idea you know what you're going to say, I think there are inherent dangers in you saying anything.

This reaction from Mr Campbell is not one that would be expected from a legal adviser who is discussing a transaction that he regarded as authentic.  There was an abundance of supporting evidence to corroborate the direct testimony of Mrs Chaplin.  The record of interview contains reactions from Mr Campbell that are inconsistent with the role of a legal
adviser who has acted innocently.  Putting to one side the letters from Mrs Chaplin, his own letters to her are wholly consistent with her oral testimony that he knew that she and her husband were to receive substantial moneys through Mr Hillsdon.  If the jury then accepted her evidence that she had transmitted her letters and rejected his evidence (when he denied receiving them) and it would have been quite reasonable for the jury to do this, a conviction became inevitable.

Count 2 - The pink Argyle diamonds transaction

The second count in the indictment alleged that Messrs Campbell and Barker were parties, together with Mr and Mrs Chaplin, to the defrauding of the Commonwealth by deceiving the ATO  "as to the true circumstances of the arrangements between Ellen Elizabeth Chaplin, Christopher John Chaplin and Vincent Anthony Hillsdon as to the transfer to Vincent Anthony Hillsdon of a quantity of pink Argyle diamonds and their return to the said Ellen Elizabeth Chaplin and Christopher John Chaplin".

Between February and May 1989, Mr and Mrs Chaplin bought some pink Argyle diamonds at a cost of $542,628.22.  The Crown contended that the Chaplins delivered the diamonds to Mr Hillsdon under an arrangement whereby he would later return them to the Chaplins upon their arrival in the United Kingdom.  The Crown case was that the diamonds were intended to be part of the Chaplins' asset protection scheme.  Under that scheme the diamonds were to be supposedly sold overseas (once more utilising the services of Mr Hillsdon) and the sale would be effected at an apparent loss.

The truth of the matter, according to the prosecution, was that Mr Barker, acting as a courier, took the diamonds to the United Kingdom in June 1989 and handed them over to Mr Hillsdon.  Mr Hillsdon gave the diamonds to Mrs Chaplin when she arrived in the United Kingdom in September of that year.  The Crown case was that the ATO was subsequently falsely told by both Mr Campbell and Mr Barker that the diamonds had been sold at a loss and that the proceeds of sale had been invested in the currency trading program.  Mrs Chaplin said in her evidence that the information given to the ATO was all false; she confirmed that she had retrieved the diamonds from Mr Hillsdon for a fee.

The Crown conceded that there was no evidence of Mr Campbell being involved in any plan to take any diamonds out of the country.  However, it was submitted that there was evidence that he subsequently became aware of the scheme and that he was thereafter a party to deceiving the ATO about the circumstances of their alleged disposal.  The case against Mr Campbell on count 2 commenced with a memorandum from Mrs Chaplin to Mr Campbell dated 18 May 1989; it listed the assets that she and her husband were prepared to sell to raise cash to pay their liabilities to the ATO.  Item 6 on the list was an entry styled "Diamonds".(p130)  They were given a value of $520,000.00 but there was an endorsement "these wont be for sale".  Next there was the conference on 4 September 1989 with officers of the ATO when Mr Campbell allegedly participated in knowing and falsely representing that the diamonds had been sold.  (The circumstances of that meeting are discussed in more detail under count 3).

Once again, Mrs Chaplin's evidence was central to the issue.  But, as with count 1, it did not stand alone.  In a letter dated 12 September Mrs Chaplin wrote Mr Campbell:-

"Can you also get Terry to prepare correspondence for my file relating to the diamond sale, at a loss."

She wrote him in similar terms on 21 September 1989:-

"Would you chase Terry to make sure that he gets the draft letters to Vin for our files relating to the diamond sale."

Mr Campbell denied receiving these letters but on 21 October he wrote Mrs Chaplin saying, among other things that he "will follow up the Teckvest diamond letters".

Perhaps the most damaging evidence was a bundle of letters found by the police at Mr Campbell's home.  The bundle comprised a letter from Mrs Chaplin to Mr Campbell dated 27 November 1989 which said, in part, "I am returning diamond letters with my comments ...".  Attached to her letter were drafts of letters dated 23 June, 12 July and 9 August 1989,
each of which was addressed to "Mrs E Chaplin, Precious Jewellers Pty Ltd, Style Arcade, Manuka ACT Australia" and each purported to have been written by "V A Hillsdon".  The first and third of the letters contain annotations which Mrs Chaplin acknowledged were hers. She said in evidence that the letters were needed to create a false trail in the event of the ATO pursuing their investigations.  The first letter, that of 23 June, commenced with the words:  "Following a recent meeting with Mr Chaplin ...".  Those words were the subject of the following annotation by Mrs Chaplin:  "Chris arrived London 29 June, so date (of) letter wrong, maybe needs rethinking".  The remaining annotations are not so dramatic but they are all consistent with the Crown case that a file of false correspondence with respect to the diamonds had been concocted.

Mr Campbell acknowledged that these letters had been seized at his home but claimed that he did not see them until long after their arrival.  He acknowledged that someone at Scott Campbell Shiels had opened the envelope and placed a stamp with the date "5 Dec" on the first page of Mrs Chaplin's letter.  He then said in his evidence that it was his belief that the enclosures were then returned to the envelope but that the envelope and its enclosures were not placed on the relevant file and were not shown to him.  He explained that he had ceased to be a partner of Scott Campbell Shiels shortly after the police searched the premises on 19 July 1991 and thereafter, that, someone in the office had boxed up some documents and delivered them to his home.  He claimed that he had learned of the existence of this bundle of letters sometime after he received the box of documents at his home and examined the contents.  However, this explanation does not explain why Mrs Chaplin would have written such a letter to him unless it was part of a plan orchestrated by her to involve her legal adviser falsely in her criminal conduct.  This is highly unlikely as it would have required, on Mr Campbell's version, a measure of co-operation on the part of someone in Mr Campbell's office.

There was evidence from which the jury could conclude that Mr Campbell, at some stage, became aware of this charade and knowingly participated in it.  Such a conclusion could not be regarded as being unsafe or unsatisfactory or against the weight of the evidence.  It seems evident that the jury was prepared to accept the evidence of Mrs Chaplin notwithstanding her unsavoury conduct.  They were entitled to do that and the attention of the Court has not been directed to any part of the transcript that would justify this Court's interference.

It is timely at this stage to summarise the appellant's situation.  By their verdict of Guilty on count 1 the jury were satisfied beyond reasonable doubt that Mr Campbell knew that the Teckvest agreement was a sham and that it was intended that, after deduction of his fee, Mr Hillsdon would return the balance of the money to Mr & Mrs Chaplin.  The jury must have been likewise satisfied that Mr Campbell knew that the sale of the pink Argyle diamonds and the dispersal of the proceeds of their sale was also a sham:  hence the verdict of Guilty on count 2.

After finding Mr Campbell Guilty on counts 1 and 2 the jury merely had to be satisfied that he had some meaningful part to play in the presentation or use of the affidavit in the proceedings in the Supreme Court to return a verdict of guilty on count 4.  Similarly, to find Mr Campbell Guilty on count 3 the jury just needed to be satisfied he had some meaningful part to play in the presentation of the false information to the ATO officers at the conference on 4 September 1989.  In other words if the Crown can sustain the convictions on counts 1 and 2 the state of evidence would leave no room for doubt about the convictions on counts 3 and 4.  Conversely, if this court had come to the conclusion that the convictions on counts 1 and 2 had to be set aside, it would follow that the convictions on counts 3 and 4 would be unsafe.

Count 4 - The conspiracy charge

As the events that gave rise to this count occurred before the events dealing with count 3, it is appropriate to mention the facts dealing with this count so that the chronological sequence is maintained.  The fourth count charged Mr Campbell and Mr Barker with perverting the course of public justice.  Having served on Mr and Mrs Chaplin notices of amended assessments to income tax in amounts which, with penalties, exceeded more than $3m, the ATO on 26 May 1989 obtained certain interim ex parte orders from the Supreme Court of the Australian Capital Territory restraining the Chaplins from disposing of their assets.  The matter was listed for further hearing on 2 June 1989.

It was Mrs Chaplin's evidence that she wanted those orders set aside.  At that particular stage, the diamonds had been bought but they were still in the country and although in excess of $700,000.00 had been sent to Mr Hillsdon, there was still a further $2.7m or thereabouts in cash that the Chaplins wished to remove from the jurisdiction.  In her attempt to obtain a discharge of the Supreme Court's orders, Mrs Chaplin swore an affidavit in which she deposed to the details of the Teckvest agreements, falsely asserting their authenticity.  This affidavit was prepared by one of Mr Campbell's partners as he was then absent on holidays.  But he returned on 1 June 1989 and resumed control of the conduct of the matter.

It was the case for the Crown that, in participating in the presentation or use of that affidavit in the Supreme Court proceedings, well knowing that its contents were false in material particulars, both Mr Campbell and Mr Barker conspired to pervert the course of justice.  The ploy was successful.  Counsel for the ATO and the Chamber Judge expressed their satisfaction with Mrs Chaplin's explanation about the Teckvest agreements and the purchase of the computer programs.  The order restraining the Chaplins from disposing of their assets was discharged.  The diamonds, which had been deposited with the Court were returned to the Chaplins.

On 6 June 1989 Mr Barker left Australia with the diamonds and on 8 June approximately $2.5m was transmitted from the trust account of Mr Campbell's firm to Mr Hillsdon.  On 28 June 1989 Mr Chaplin left Australia.

There was evidence of Mr Campbell's involvement in the Supreme Court proceedings.  The fact that his partner prepared the affidavit was immaterial.  It was the use to which the affidavit was put that constituted the gravamen of the charge.  The jury had earlier satisfied themselves that Mr Campbell knew the Teckvest agreements were a sham and they were satisfied that Mr Campbell knew of the contents of the affidavit.  With this knowledge Mr Campbell participated in using the affidavit obtain from the Supreme Court a discharge of its earlier orders.  It followed that a conviction on this count was the only logical conclusion.

Count 3 - The September meeting

In the third count, Mr Campbell alone was charged with defrauding the Commonwealth.  The particulars were that on or about 4 September 1989, he deceived "the Australian Taxation Office as to the financial circumstances of Ellen Elizabeth Chaplin and Christopher John Chaplin and the ability of ... [each of them] ... to pay the required taxation and penalties pursuant to an assessment issued by the Australian Taxation Office to the said Ellen Elizabeth Chaplin and Christopher John Chaplin on about 16 May 1989".  At a meeting with officers of the ATO on 4 September 1989 a compromise was reached about the objections to the Chaplins' amended income tax assessments.  Mr Campbell attended the meeting on behalf of the Chaplins:  Mr Barker did not attend.

Under the compromise the Chaplins were to withdraw their objections and the ATO would issue further amended assessments to reflect the compromise.  The object of the conference had been to agree the amounts of the Chaplin's liabilities for income tax and penalties.  The case for the Crown was that at that conference Mr Campbell knowingly lied to officers of the ATO about the Chaplins' ability to pay the assessments and penalties.  The evidence of the officers from the ATO was that they were primarily interested in ascertaining whether the assessments could be maintained; but independently of the accuracy of the assessments they were also concerned about the ability of the Chaplins to pay.  They explained that it would not be commercially expedient to pursue taxpayers for amounts which were beyond their capacity to pay.

The Taxation officers claimed that they were deceived because they were not told the truth about the Teckvest agreements.  It was their evidence that during the course of the conference Mr Campbell told them that the computer programs, as pieces of software, had no value to anyone but the Chaplins and that they had no value to the ATO as an asset.  The evidence in chief of a Mr Twigg, an officer of the ATO about the conference of 4 September was as follows:-

"Mrs Chaplin dealt with the sale of the Argyle pink diamonds and she advised us that they had been sold overseas and that the proceeds had gone into the Teckvest program - the computer program known as the Teckvest program.  Mr Campbell dealt with the - well, from my recollection Mr Campbell dealt with the Teckvest program and basically told us that it - the Chaplins had the program, that they had been operating it for a short period of time, it had not produced the results that they had expected and that in the short term it wasn't an asset that could be relied on as security for payment of the tax debt."

The officers of the ATO were further misled at this conference with respect to the sale of the Chaplins' jewellery business "Precious Jewellery".  The Crown case was that the business had been sold to a company controlled by Mr Campbell's wife for about $239,000.00 when, in truth, its value was in excess of $900,000.00.  The ATO did not know at the time that this sale was a sham.  The circumstances of the sale of "Precious Jewellery" led to Mr Campbell and Mrs Harper being convicted at the first trial.

The Crown presented its case upon the premise that these deliberately false statements moved the officers of the ATO to believe that the Chaplins would not have the financial ability to pay the tax and penalties in the amended assessments dated 16 May 1989.  In other words, the ATO was induced to believe that the Chaplins no longer had the value of the assets that were previously represented by the value of the diamonds and
the moneys that had been paid under the Teckvest agreements.  The Crown alleged that it was because of these factors that agreement between the Chaplins and the ATO was reached on a figure of approximately $1.9m, the ATO believing that was the best result that it could achieve.

Before moving to the next ground of appeal, mention should be made of some additional complaints that were raised, without objection, by Mr Campbell during the course of his oral submissions.  None of them, however justifies this Court interfering with the jury's verdicts.

The amount of the Chaplin's tax liability

Mr Campbell complained that the learned trial judge, in his summing up to the jury, fell into error when he discussed the amounts of the Chaplins' liabilities for income tax and penalties.  There is a suggestion from a perusal of the transcript that he may have abandoned this point; he said "I do not pursue the submission further at this stage".  In case there was not a total withdrawal, the matter should be mentioned.  On 16 May 1989, the ATO had issued amended assessments against the Chaplins and some of their companies for amounts totalling in excess of $3.8m.  The Chaplins had lodged objections and, on the Crown case, had made submissions to the ATO that, in any event, they did not have assets to meet assessments of that size.  The negotiations between the Chaplins and the officers of the ATO culminated with the meeting of 4 September 1989 when Mr Campbell, on the Crown case, deliberately gave the ATO officers false information about the value of the Chaplins' assets.

It is a fact that subsequent to the conference further amended assessments were issued in the names of the Chaplins in amounts totalling about $1.9m.  In that context his Honour said to the jury:-

"...[O]n the evidence whatever the assessments would have been if the whole matter had been fully debated the evidence seems to be that 1.9 was a bottom figure and it really should - and based upon ability to pay, but subject to the objections 2.8 was the minimum figure that the amended assessments of 16 May 1989 could have been reduced to."

Mr Campbell complained about his Honour's reference to $2.8m claiming that the correct amount for income tax and penalties was "a matter of some conjecture amongst the various witness ...".  That is true, but it is equally true that his Honour's remarks were an accurate reflection of the evidence of a Mr Harvey, an officer of the ATO, who gave evidence in the trial on behalf of the prosecution.  In any case, the answer to Mr Campbell's complaint is that it was not necessary for the Crown to prove the actual loss that the ATO had suffered or was likely to suffer.  His Honour correctly directed the jury that in order to establish that the Commonwealth was defrauded, the Crown did not have to demonstrate that actual loss was suffered.  If the deceit or concealment that was employed by an accused person imperilled the economic interest of the Commonwealth, it would be sufficient:  R v Allsop [1976] 64 Cr App R 29; Wai Yu-tsang v The Queen [1992] 1 AC 269; and Barker v The Queen (supra) at p483.

The gravamen of the charge is the conduct of the accused, not the reaction of the representee.  His Honour's directions to the jury were accurate and clear; his reference to the figure of $2.8m was unnecessary but it would not have diverted the jury from its deliberations.  There is no substance in this complaint.

Teckvest's retention of the programs

Mr Campbell further submitted that his Honour fell into error, first, by failing to make clear to the jury that the contractual arrangements subsisting between the Chaplins and Teckvest entitled Teckvest to retain possession of the currency trading computer programs, and secondly by not informing the jury that the Chaplins had not paid the last $141,000 to Teckvest and that Teckvest was therefore treating the Chaplins as defaulting purchasers.  Mr Campbell submitted that these were issues to which the attention of the jury should have been directed because they tended to show that the Teckvest agreements were not a sham but a genuine commercial arrangement.

There are two responses to the second of these complaints:  neither counsel for Mr Barker nor counsel for Mr Campbell asked the learned trial judge to direct the jury on the subject and the subject does not have any apparent relevance to the issues in the trial.  Retention by Teckvest of the computer programs might have been seen as inconsistent with the Chaplins' ownership but his Honour, at the request of counsel, drew the jury's attention to the relevant clauses in the Teckvest agreement which permitted Teckvest to retain the software and manage the operation of the currency trading program on the Chaplins' behalf.  The perceived error by the learned trial judge, in Mr Campbell's submission was his Honour's failure to explain that Teckvest was also entitled to retain the programs under a management arrangement in the event of trading having ceased.  Mr Campbell did not identify how this omission might have had any adverse effect upon his defence.  There is no substance in these complaints.

Dispatch of documents

The next challenge that Mr Campbell raised was a submission that his Honour, during the course of his summing up, incorrectly told the jury that Mr Campbell had agreed that certain important documents, including the Teckvest agreements had been sent by Mr Campbell to Teckvest on 18 May 1989.  This assertion had been made by the Crown as part of its case.  In cross-examination it had been put to Mr Campbell that he dispatched the documents on 18 May prompted by the issue of the income tax assessments on 16 May 1989.  Mr Campbell recognised a costing record from his office file for an international postage charge of $29.50 on that date and an International Express Post Form from his firm to Mr Hillsdon dated 18 May 1989 describing the contents of the envelope as "documents".  After referring to that fact, his Honour then read to the jury a passage from the cross-examination of Mr Campbell:-

"You see, what I suggest to you is that these documents - the letter of 5 May, the letter of 10 May and all the agreements - were all sent at the same time on 10 May? (sic: this reference to 10 May is obviously a mistake; it should have been 18 May) ... That's not my understanding.

And I suggest to you the reason for that was that by 18 May you knew the Tax Office had issued assessments to Mrs Chaplin?...They'd issued assessments, yes, that's correct.

And you suddenly realised that these documents needed to be signed?...No, that's not correct.

And a day or so after the assessments were issued you sent them off to Mr Hillsdon?...No, that's not correct, certainly not to my knowledge.  As far as I knew they'd already been sent.

Do you now have some doubt about when you sent these letters?...I believe they were sent on the days or approximately the days - certainly the one for the 5th, I would have expected that to be sent on the 5th, and the one for the 10th around the 10th."

His Honour after reading other selected passages from Mr Campbell's evidence then went on to tell the jury that Mr Campbell:-

"... agreed that he was being asked to act urgently and the quickest was to act urgently was by courier, and he agrees that that is apparently what happened on 18 May"

In other words his Honour was putting even handedly, the case for the Crown and the case for Mr Campbell.  The Crown asserted that all documents were sent on 18 May.  Mr Campbell acknowledged that some documents were sent on that day as evidenced by the Post Form and the charge of $29.50 but he did not accept that the agreements or that the letters of 5 and 10 May were included in those documents sent on 18 May.  Mr Campbell was quite wrong when he suggested that the trial judge has misstated the facts.

The first ground of appeal - Documentary Evidence

The appellant complained in these terms:-

"That the evidence of Detective Sergeant Pattenden at pages 1014, 1015 and 1016 in relation to the seizure of a substantial number of documents from the offices of Scott Campbell Shiels on 19 July 1991 pursuant to S10 warrant was in fact in error and that a substantial proportion of those documents tendered through various Crown witnesses was not seized on that date from those premises."

It was common ground that the appellant was, at all times material to the issues in the trial, a partner in a firm of solicitors called Scott Campbell Shiels and that on 19 July 1991 officers of the Australian Federal Police lawfully entered upon the premises of that firm and seized many thousands of documents.  In general terms it can be said that the seizure extended to any document that was or might be relevant to the affairs of the Chaplins.

Leave was granted to Mr Campbell in these proceedings to file an affidavit in his name dated 15 June 1996 and to read a document styled "Property Seizure Record" annexed to that affidavit.  It was a document compiled by the Australian Federal Police and it should have listed each document that was seized on 19 July 1991 from the premises of Scott Campbell Shiels.  However, the Property Seizure Record was not completed accurately; it was not a detailed inventory of the documents that were seized.  Exhibit AA in the trial contained a short identification of the many sources from which documents had been seized.  That exhibit included a reference to the premises of Scott Campbell Shiels with a notation "10,000-13,130" indicating that 3,130 separate items had been seized from that source and that identifying numbers, commencing with the number 10,000 had been given to those items.  The Property Seizure Record commenced with the following entries:-

Item No.	Description of Item seized
10000	1 x Original Photocopy Paper with writing on by Det Sgt Young  Re. Sample of Photocopier
10001-11	10 x Pieces of Photocopy Paper with writing - Sample of Photocopier at offices of Scott Campbell & Shiels Fri 19/7/91 B>R> Young Det Sgt 1188
10012	1 x Brown Coloured Computer Printer

Thereafter there were a further four pages containing additional entries (but without identification numbers).  Those additional entries contained mere general endorsements such as "44 x Yellow Index Cards Re:  Clients Style Investments P/L and Chaplin C & E" and "1 x Yellow File No 890 Chaplin".  (Style Investments Pty Ltd was a company that was owned and controlled by Mr and Mrs Chaplin).  No further attempt was apparently made by the authorities to compile a more informative inventory.

Mr Campbell submitted that the documents that were seized on 19 July 1991 by the police when they executed a search warrant at the offices of his firm were inadequately recorded on the Property Seizure Record.  That assertion is correct, but it is questionable whether it supports Mr Campbell's complaint in his first ground of appeal, that "a substantial proportion of those documents  tendered through various crown witnesses was not seized on that date from those premises".

Out of these circumstances, the appellant has complained that the jury might have been misinformed about the sources of the documents that were tendered in evidence during the course of the trial.  The nature of his complaints is very difficult to comprehend.  At one stage Mr Campbell stated that certain documents (being documents that presumably were relied on by the Crown in the trial) would have originated from his firm's office but as they were not listed on the Property Seizure Record, it would have been inaccurate to have informed the jury that they were the subject of seizure by the Australian Federal Police on 19 July 1991.  Having regard to the inadequacy of the Property Seizure Record, that is not necessarily the truth of the matter.  The Crown's case did not depend upon the accuracy or the contents of the Property Seizure Record.

The evidence of Detective Sergeant Pattenden to which reference was made in the first ground of appeal was given when he was being asked by the Crown Prosecutor to describe police procedures with respect to the execution of search warrants.  The witness first explained that the police executed search warrants in relation to this matter at various locations on 19 July 1991 and that as a result "probably thousands" of documents were seized.  Detective Sergeant Pattenden then said:-

"... I prepared each search warrant execution team and advised them of a prefix which would be utilised for stamping each document.  So, what would occur is at each individual location they would be allocated a prefix that may start at 10,001 and go through to 20,000 and then each document they would receive would be individually stamped with a number within that prefix range on a consecutive basis which would then enable anybody at a later date to identify where that document was located from.  And this was done for each of the individual premises that was - where warrants were executed on that day.

Was the idea of that that each document would be individually identified?...That' correct.

And it would be permanently stamped with a number?...Yes, that's correct.

And a record thereby kept?...That's correct.

At the point of search and seizure, was the individual document noted in any particular way, other than by stamping on the document?...Yes, at, all bar the offices of Scott Campbell Shiels, each document would be stamped, provided with a number and then the details of the document and its identification prefect would be recorded on an Australian Federal Police property seizure sheet, which clearly identified the number, the contents and the time located, whom located by and whereabouts."

His evidence continued:-

"You did make reference to Scott Campbell Sheils.  Ultimately, not particularly on that day, but at a later time, was that exercise also performed?...Yes, at a later date, on receipt of the documentation, a number of the documents were stamped.  However, not all documents were stamped because some were obviously not relevant to the proceedings and a decision was made not to stamp those documents, although they were retained and are present in court today."

The subject was taken up in cross-examination by counsel for the appellant:-

"At all the other places, as each document was found it was stamped and recorded on a property seizure sheet.  Is that right?...Yes, that's correct.

But a different procedure was followed at Scott Campbell Sheils, no doubt because of the enormous volume of documents that ...?...No, you've ...

... might be relevant?...No, not because of that, because of the injunction application."

There are other passages in the evidence where reference is made to the methods and procedures of the police and the execution of search warrants but they do not carry the matter any further.  Mr Campbell, during the course of his oral submissions, sought to challenge the accuracy of Detective Sergeant Pattenden's evidence concerning the subject of an injunction.  But the issue was not ventilated at the trial and it is now too late to inquire into it.  Mr Campbell's
complaint was to the effect that Detective Sergeant Pattenden was wrong when he said that a different procedure was followed at Scott Campbell Sheils "because of the injunction application".  According to Mr Campbell the "injunction application" occurred much later in the day and well after the commencement of the search.  This fact, if it has been accurately stated, was not put to Detective Sergeant Pattenden and so he was deprived of the opportunity to give an explanation.  Perhaps, for example, he was told shortly after he attended at the premises that an application for an injunction would be made.

Mr Campbell further complained that the Crown had failed to record or disclose all documents that had been seized by the police.  He instanced the file of papers that had been used in the Supreme Court proceedings on 2 June 1989 when Mrs Chaplin applied to discharge the injunction that had been obtained by the ATO.  He submitted that some, but not all of those documents had been recorded.  This complaint suffers from lack of substance.  It fails to disclose the nature and detail of the missing documents and, more importantly, it fails to disclose how their absence might have caused a miscarriage of justice.  Mr Campbell nominated seven documents which he claimed were or should have been in the possession of the prosecuting authorities and which were not produced at trial.  The first of these was his file note of his telephone conversation with Mr Hillsdon on 5 May 1989.  He had given his evidence in chief about that conversation without referring to the fact that he had made notes if it.  It was only in cross-examination that he said that he had made notes.  In the relevant passage of his cross-examination which is set out below Mr Campbell had every opportunity to complain that his notes were missing as a result of the police seizure.  No such complaint was made:-

"And then at some stage during the day you had a telephone conversation with Mr Hillsdon?...Yes, that's correct.

You have not notes, no doubt, of that conversation?"... Yes, I did take notes.

Do you have them now?...No, I don't have them now and I have looked for them.

Did you make a file note?...I took notes of it, I don't know whether you could call it a file note but there were notes taken at that meeting.

I asked you about the notes.  Did you make a file note?...I cannot recall if I made a file note as such.

Well, you were being presumably careful about this I take it?...I was trying to be careful, yes.

...

And you have taken to the file notes?...Yes, I have.

And I think you have said, in effect, that they accurately reflect what occurred, that's right, isn't it?...The essence of what occurred, yes, that's correct.

Well, I think you were actually - never mind, we will come back to that.  Now, your conversation with Mr Hillsdon then is totally dependent on your recall?...Yes, it is.

You have no note and you are not aware of any file note that records that conversation?...I am aware of notes but they are not available for me to look at."

It is apparent from this passage of his evidence that neither Mr Campbell nor his legal advisers attached any importance to the conduct of the police or the prosecution so far as the notes of the telephone conversation with Mr Hillsdon was concerned.  No complaint, such as that now made on appeal, was made at the trial.

The same observation might be made about the second document that was said to be missing.  This document was a file note referrable to his original instructions .  In cross-examination he gave this evidence:-

"And is the documents that we have just been looking at, that is the file notes, the three file notes that I asked you questions about before we took a short break, are they the extent of your instructions?...They are probably not the extent of the full instructions because I sat down with Mr Barker and actually started to map out what I thought the instructions were.  That material is not here unfortunately.

That material is not here either?...No.

It is not in the file?...No, it is not.

You've never seen it since?...No.  It is not here, it's - my handwritten notations and things were on note paper, on pad paper.  And it would be very obvious if - well, I have looked for it and I cannot see it."

The third document to which Mr Campbell made specific reference was a handwritten authority from Mr Barker addressed to Scott Campbell Shiels to pay $45,000.00 to one of Mr Barker's companies.  There was evidence that this sum was a fee payable by the Chaplins to Mr Barker for his services and contradictory evidence that it was a gift from the Chaplins to Mr Barker.  Either way it was not directly relevant to the affairs of Mr Campbell or to the charges that had been laid against him.  Mr Campbell, however, submitted a contrary proposition.  He claimed that he was cross-examined about his failure to produce this document and that his failure to produce it cast a doubt on the veracity of his whole explanation.  In response to that submission during the course of his appeal, he was asked:-

"...are you saying that there is now material available to you which was not then available, which shows that there have been other demonstrable discrepancies in relation to the existence or production or seizure of documents which, had that information been placed before the court, might have tended to re-establish your credit?"

Mr Campbell answered "I think it is what I am saying", but  went on to add that he did not have this new material.

It is not necessary to comment upon the remaining documents to which Mr Campbell referred.  This ground of appeal suffers from the deficiency that there is nothing that points to the possibility of a miscarriage of justice.

Mr Campbell's submission was that the only documents that were seized from the offices of his firm on 19 July 1991 were those referred to on the Property Seizure Record.  He said that his submission was substantiated by the contents of a cassette tape but that tape was not in evidence.  He considered that 99% of the documents that were referred to during the course of the trial as having come from the offices of Scott Campbell Shiels were not in fact seized on that day. However, he readily agreed that many of them would have emanated from that source in any event.  He could not say how they came into the possession of the authorities.  He did not know whether there had been another search on another day or whether someone in his firm had voluntarily delivered papers to the authorities.

If Mr Campbell's version of the facts is accepted (and it does not appear that any of them were the subject of evidence or submissions arising out of the course of the trial) this Court is still left with the unanswered question:  how might such facts, if disclosed in evidence during the trial, have affected the outcome of the trial?  When pressed by the Court to address this issue Mr Campbell surprisingly answered that he did not believe that they would have any effect on the outcome.  He had only raised the issue, so he said, as an example to support his complaint that he had been unfairly criticised because of his inability to produce documents (of which his file note of his telephone conversation with Mr Hillsdon on 5 May 1989 was an example).  This proposition contradicted his earlier submissions and exhibited the readiness of Mr Campbell to change his submissions when he found himself in an untenable position.

Mr Campbell's complaint about the seizure of documents that came from the offices of Scott Campbell Shiels was, for all practical purposes, raised for the first time on this appeal. There was no suggestion that the issue of documents had been raised in the original trial.  Similarly, during Mr Campbell's retrial the question of the details of seizure of documents on 19 July 1991 was not the subject of serious comment or criticism.  It is apparent that in his preparation for this appeal Mr Campbell came across the inadequacy of the information in the Property Seizure Record and sought, for the first time to use its deficiencies to his advantage.  There is a measure of appeal in the submission by counsel for the Crown that Mr Campbell's complaints about the documents are a reaction to his cross-examination at the trial about his failure to produce documents that might otherwise have supported his oral evidence.

However, after making that observation, Dawson J acknowledged that even in a criminal prosecution Isaacs J, in Dickason v Edwards (1910) 10 CLR 243 at 260 was clearly of the view that a party may waive the objection. Dawson J then quoted the following passage from the judgment of Isaacs J:-

"So that the principle seems to me to be this - that, if the person whose presence is challenged can fairly be said to be biased, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from
these qualifications.  Even in a public prosecution a party may waive the objection.  One of the strongest examples of this is the case of Wakefield Local Board of Health v West Riding and Grimsby Railway Co 122 ER 1386.  There the Statute provided that the justices should be disinterested parties, but the words were held not necessarily to prevent waiver.  A distinction has been drawn between public judicial tribunals and private judicial tribunals, but I am not satisfied that that is a sound distinction."

R v Sarek [1982] VR 971 is an example of the willingness of an Appeal Court to intervene and set aside a verdict notwithstanding a waiver of rights by an accused in the court below. The accused, in evidence in chief, had referred to the fact that he had certain previous convictions. The prosecutor, without first obtaining the leave of the trial judge as required by s 399 of the Crimes Act 1958 (Vic), cross-examined the accused and elicited details of additional convictions that had not been referred to by the accused during his evidence in chief. When it was realised that leave should have been obtained, the solicitor who was acting for the accused took time to consider the matter and then informed the trial judge that he did not wish to have the jury discharged because of the contravention. The trial continued and the accused was convicted.

On an application for leave to appeal against conviction, the Full Court was of the unanimous view that the cross-examination without leave was irregular, that the evidence elicited as a result was inadmissible and as the jury had been called on to determine the guilt of the applicant on material that included inadmissible evidence, leave to appeal was granted and the appeal allowed.  However, even with this result there were passages in the judgments of the members of the court pointing to the fact that the manner in which an accused and his advisers have conducted themselves during the course of the trial are matters that warrant much weight.  For example McInerney J with whom Kaye J agreed said at p982:-

"Where an accused person has at his trial been defended by a legal practitioner, a Court of Criminal Appeal will attach great significance to the deliberate decision of that practitioner as to the conduct of the trial and the defences taken at the trial and it will be very reluctant to substitute its judgment for that of the practitioner who appeared for the accused at the trial."

After quoting several authorities in support of that proposition, his Honour continued:-

"In most cases the appellate tribunal will not seek to go behind a deliberate decision taken at the trial by a solicitor or counsel for the accused or even by the accused himself." (p983)

On the same subject Brooking J said:-

"A deliberate act or omission of the accused, by himself or his legal advisers, in the course of the trial may bear in different ways on whether justice has miscarried.  It is for the accused to determine how he will conduct his defence.  If the case is simply one of a decision not to call certain evidence, then, even though the evidence be of substantial importance, the omission to call that evidence will not avail him unless it shows him to be innocent or raises such doubt as to make it unjust to allow the conviction to stand." (p984)

In R v Nardella [1971] VR 217 the Full Court refused to interfere when the applicant sought to have his conviction set aside on the ground that there had been a miscarriage of justice. The applicant maintained that the miscarriage was the result of relevant evidence not being put before the jury. The applicant had raised an insanity defence to a charge of wounding with intent. He did not give evidence and he did not make an unsworn statement. After the jury had retired but before verdict, the applicant changed his instructions to his counsel. Previously he had made statements that he had no memory of the events in question. In the time before verdict, he claimed that not only did he remember but also that he did not inflict the wound. In rejecting his application for leave to appeal against his conviction, Little J who delivered the judgment of the court said at p220-221:-

"In considering whether there has been a miscarriage of justice the court should consider all the circumstances of the case.  If, for example, there being no elements of fraud, mistake or surprise, an accused person has, by himself or by his legal advisers, deliberately decided to set up a particular defence, he cannot complain of a miscarriage of justice for the sole reason that, that defence having failed, he comes to the conclusion, or a court comes to the conclusion, that he might succeed if he set up another defence.  Thus, if an accused person deliberately chooses to abstain from calling evidence which is available to him, it cannot be said that the course of justice has miscarried for the sole reason that it cannot be asserted with certainty that the result would have been the same if such evidence had been given.  There is no miscarriage in such a case."

If the trial judge had made the comments in the Restaurant that Mr Campbell attributed to him, and if Mr Campbell was  upset by those comments then, one is left wondering why no complaint was raised when his Honour resumed the trial.  No obvious answer is apparent, especially bearing in mind that both his solicitor and counsel were allegedly told of the Restaurant incident that afternoon before court resumed.  Perhaps the incident did not occur: perhaps Mr Campbell did not tell his legal advisers of it: perhaps his legal advisers were of the opinion that it was a matter of insufficient consequence to interfere with the progress of the trial.

Whatever may be the explanation, Mr Campbell was adequately represented by competent legal advisers and, on his case, they were aware of his concerns.  Yet they remained silent permitting a long trial (which was then only in its second week) to proceed to its ultimate conclusion six weeks later on 6 December 1995.  Bearing in mind the observation of Dawson J in Vakauta v Kelly (supra) it is not necessary to make a definitive statement regarding the effect of the waiver of a right in criminal proceedings.  The particular facts of each case will have to be assessed.  In the circumstances of this case, it is clear that Mr Campbell, on his own case, expressed his concern about the alleged incident to his legal advisers but elected not to instruct them to seek a mistrial.  On his own version of events he relied on his advisers to take such action as they thought appropriate.  The clear inference is that they thought it was inappropriate to raise the matter with the learned trial judge.

If that represented the truth of the matter, a deliberate decision must have been made that it was in the best interests of Mr Campbell that there should be no complaint.  The overriding test is to question whether there has been a miscarriage of justice, for if there has, it would be incumbent on a Court of Appeal to intervene.  As to this, not even the most favourable view for Mr Campbell would warrant such intervention.

The correct procedure would have been for Mr Campbell's counsel to draw the matter to the attention of his Honour so that it could have been appropriately ventilated in open court.  That is what happened in Balic (No2) (1994) 75 A Crim R 515. In that case the solicitor for the accused overheard the trial judge make a statement before the trial had commenced that he intended to revoke the accused's bail. Subsequently, the case was called on and the judge, without any application from the Crown, did revoke bail. Thereafter, an application was made to the judge that he disqualify himself. That application was supported by an affidavit from the solicitor in which he deposed to what he overheard; there were also affidavits from the accused and others to whom the solicitor had reported the incident. The purpose of those affidavits was to lay down a foundation for perceived bias. The Court of Appeal concluded that the trial judge erred when he refused to disqualify himself. The procedure that was adopted in Balic's Case (supra) could have and should have

been  adopted in this case if the incident occurred and was of concern to Mr Campbell.

Two further observations can be made about this ground of appeal.  First, in the form in which it was presented, it referred only to the issue of sentence and only to Mr Barker.  So far as Mr Campbell was concerned the alleged remarks did not address any question of his guilt or innocence (which, in any event was within the domain of the jury).  The alleged remarks also did not refer to the subject of what sentence would or might be imposed upon him.  That alone might explain why his counsel decided to take no action.  Secondly there was nothing in his Honour's summing up to the jury nor was this Court's attention drawn to any section of the transcript which would amount to any actual or perceived bias on the part of the trial judge during the course of the trial.  Whatever might have occurred in the Restaurant, neither the incident nor any part of it nor an opinion or attitude consistent with it was conveyed to the jury.  The jury's deliberations were not therefore tainted in any way so far as this ground of Appeal is concerned.

Subject always to the overriding consideration that the Appeal Court must be satisfied that there has been no miscarriage of justice, it is pertinent to note the comment of O'Connor J in Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879 at 881, a comment that was quoted with approval by

Isaacs J in Davison v Vickery's Motors Ltd (in liquidation) (1925) 37 CLR 1 at 8:-

"The question always is whether, if the point had been taken at the trial, the defect could have been remedied.  This point, if well founded, must have been fatal."

It is clear that the matter could have been resolved if Mr Campbell had instructed his counsel to raise it with the trial judge.  If Mr Campbell had made a mistake or misheard the conversation (assuming that there was some incident at the Restaurant) the trial judge could have put his mind at rest.  Even if one were to allow for the possibility that the incident did occur, the trial judge would have had the opportunity, knowing of Mr Campbell's concern, to assess the position and make a decision to abort or continue the trial.  Whatever may be the truth of the matter, it was an occasion when the defect could have been remedied if the point was taken at trial.  This ground of appeal also fails.

Conclusion

Mr Campbell has failed on each of his grounds of appeal.  His appeal against each conviction must therefore be dismissed.

Mr Barker's appeal against sentence

The appellant was found Guilty by his jury on two counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth). Those were counts 1 and 2 dealing with the Teckvest agreements and the pink Argyle diamonds. The penalty for a breach of s 29D is 1000 penalty units or imprisonment for 10 years, or both. Mr Barker was also found Guilty of the common law offence of perverting the course of public justice. That was count 4, the conspiracy charge, dealing with the presentation and use of Mrs Chaplin's affidavit in the Supreme Court proceedings. There is no limitation on the penalty that may be imposed for such an offence. His Honour imposed terms of imprisonment of four years in respect of counts 1 and 2 and three years in respect of count 4. All sentences were to be served concurrently with a non-parole period of 18 months.

In his notice of appeal the appellant claimed that the sentence "was manifestly harsh" and that his Honour erred in failing to give due weight to the following factors:-

"(1)Time already spent in prison.

(2)The circumstances under which the appellant served time in prison.

(3)The extent of the delay between the appellant's release from prison and his retrial.

(4)The appellant's age and state of health.

(5)The extent to which the appellant's rehabilitation had advanced prior to his sentencing."

The learned sentencing judge did, in fact, have regard to each of those five factors.  The question is:  did he have sufficient regard to them?  That issue can be addressed in

considering whether the sentences imposed by the learned sentencing judge were manifestly excessive.

One of the strongest submissions made on behalf of Mr Barker was based upon a comparison with his sentences on the first trial.  On that occasion head sentences of five years (as compared with four years on the retrial) were imposed with respect to the counts that dealt with the Teckvest agreements and the pink Argyle diamonds.  The same sentence of three years had been imposed on count 4, the conspiracy charge.  In addition head sentences of 2 years and 5 years were imposed on the remaining counts of defrauding the Commonwealth and organised fraud.  Neither of the last two matters are to be considered on this appeal; the jury could not agree on the first of them and the Crown elected not present Mr Barker on the second.  As a result of an inquiry from the bench, counsel for the Crown informed the court that it was not proposed to proceed against Mr Barker on these two matters.  Consideration of his appeal against sentence is therefore to be assessed upon the premise that he is no longer in jeopardy of further prosecution.

On the original sentence as a result of the first trial his Honour ordered that all sentences be served concurrently and fixed a non-parole period of two years. The comparison is therefore between head sentences on the first trial of 5 years with a non-parole period of 2 years and head sentences on the retrial of 4 years with a non-parole period of 18 months. Counsel for Mr Barker submitted that it was self evident that the sentences on the retrial were manifestly excessive because Mr Barker was sentenced only in respect of 3 convictions as against 5 convictions on the original trial. Furthermore his counsel submitted that one of the earlier convictions, organised fraud, attracted a maximum penalty of imprisonment for a period not exceeding 25 years; see s 83 of the Proceeds of Crime Act 1987 (Cth). Counsel also submitted that the reduction in the non-parole period was illusory because Mr Barker had spent in excess of 5 months in prison as a result of his convictions on the first trial before being released as a result of his successful appeal.

The appellant is now 60 years of age; he has valvular heart disease and according to one of the medical reports that was placed before the learned sentencing judge there is "a reasonable chance he will need valve surgery within the next 5 years to repair his leaking mitral valve".  During his period in prison, the appellant suffered hardships which his Honour took into account in the sentencing process.  In the report of Mr Nomchong, a Clinical Psychologist, references were made to harsh treatment, ridicule from staff and the appellant's feelings that he was being treated "like absolute dirt".  This was thought to have resulted from the learned sentencing judge expressing the wish that he "not be placed with hardened criminals" and that he not undergo hard labour.

Whilst on bail, awaiting retrial Mr Barker involved himself in charitable works and fund raising and a letter of gratitude from the High Commissioner for Nigeria was tendered in evidence on his behalf.  He also participated in a scheme to promote employment prospects for ex-offenders.  Through no fault of Mr Barker's, there was a lengthy delay of about 11 months between his successful appeal and the commencement of the second trial.  These matters were all taken into consideration by his Honour.  Furthermore, his Honour expressly stated, as he had when he first sentenced Mr Barker, that the sentences should be served without hard labour.

The power of a Court of Criminal Appeal to interfere on the ground that a sentence is manifestly excessive was concisely stated in The Queen v Morse (1979) 23 SASR 98 by King CJ with whom White and Mohr JJ agreed at p99:-

"This Court can interfere only if it is convinced that the sentence was manifestly excessive.  To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender."

At about the same time, a Full Court of this Court said on the same subject:-

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive.  It interferes only if it be shown that the sentencing
judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (p476)"

(R v Tait and Bartley (1979) 24 ALR 473.)

The learned sentencing judge implemented a material change in the sentencing pattern by reducing the effective head sentences from five years to four years.  This factor should not be overlooked nor should it be regarded as a matter of insignificance.

However, the fact that a prisoner may not have to serve out the whole of his sentence does not make it any the less a punishment.  Even a head sentence that is wholly suspended is, for reasons set out in the judgment of Bray CJ in Elliott v Harris (1976) (No 2) 13 SASR 516 at 527, properly to be regarded as a punishment. A head sentence reflects the juridical proposition that the punishment should always fit the crime. A head sentence must always be properly proportionate to the crime and, so, the imposition of a head sentence, irrespective of the length of a non-parole period, is properly to be regarded as a measure of punishment. Thus a reduction of one year (or 20% of the original term of the head sentences) was a substantial reduction and reflected the difference in the appellant's circumstances.

Viewed through the eyes of Mr Barker, there was, however, virtually no reduction in the period of time that he would spend in prison.  Admittedly, his non-parole period had been reduced from 2 years to 18 months but when the 18 months is added to the period of time that he spent in jail before his successful appeal, his total time in prison will be about 3 weeks short of two years.

If the purposes of punishment are to be served, in fixing a non-parole period a sentencing judge will always have regard to the personal circumstances of an offender and the judge must also direct his or her attention to the minimum period for which the offender must remain in prison:  The Queen v Hunter (1984) 36 SASR 101.

It seems quite clear that his Honour was aware of this slight reduction in the actual time to be spent in prison having regard to the totality of his remarks and his obvious attempts to assist the appellant.  The learned sentencing judge faced a difficult task.  He was virtually constrained to imposed lighter head sentences:  c.f. Gilmore, [1979] 1 A Crim R 416. Yet, as his Honour said of the appellant, he was "the architect " of the scheme and "his criminality was substantial and sustained".   As a result of his conduct the ATO was denied access to money to which it was entitled.  Two passages from the learned sentencing judge's remarks warrant repetition for the first emphasises the need for severe punishment whilst the second recognises his Honour's willingness to give every consideration to Mr Barker in the sentencing process.  First his Honour said:-

"Where professional people abuse their position to pervert the course of justice, public confidence in the judicial system will be lost unless it is made clear that such conduct will bring a prison sentence." (p81-82)

Later his Honour said:-

"In relation to the common law offence in Count 4, I sentence the accused to 3 years' imprisonment.  There are strong grounds for making that sentence cumulative upon the other sentences but, on balance and having considered all the factors, I think that the offence of doing a series of acts to pervert the course of justice was part of the overall scheme and, accordingly, I think it is appropriate not to make that sentence cumulative ..."

Having regard to the breadth of the sentencing discretion and notwithstanding the highly favourable subjective elements that lend support to Mr Barker's appeal, it appears that, in totality, the non-parole period imposed by the learned sentencing judge was within the range of his discretionary powers and was proportional to the appellant's criminality.

The primary necessity for the learned sentencing judge was to pronounce a sentence properly denunciatory of sustained fraud on the Commonwealth by a mature, professional man.  At the same time, the judge evidently and properly took the view that it was appropriate to reduce Mr Barker's sentence because of some diminution of the number and quality of the charges of which he had been convicted at his first trial.  The learned judge faced the practical difficulty that it was necessary to keep the reduction within bounds such that the sentence would not fail to reflect the inherent gravity of the offences.  His Honour not only did not err on the side of an excessive sentence, his approach was correct.

At the very least, it cannot be said that the sentencing judge has gone beyond the permissible boundaries of the sentencing discretion.  Mr Barker's appeal against sentence should be dismissed.

I certify that this and the preceding       pages are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:

No ACT G 19 of 1996

The appellant Robert George Campbell
     appeared in person

Counsel for the respondent           :    Mr L Lasry QC

with
  Mr J Champion

Solicitor for the respondent         :    The Commonwealth
  Director of
  Public
  Prosecutions

Hearing Dates  :    26-28 June 1996

No ACT G 18 of 1996

Counsel for the appellant

Terence Francis Barker           :    Mr N Adams

Solicitors for the appellant
     Terence Francis Barker           :    Pappas J -
  Attorney

Counsel for the respondent           :    Mr J Champion
Solicitor for the respondent         :    The Commonwealth
  Director of
  Public
  Prosecutions

Hearing Date  :    28 June 1996