Caratti v The Queen

[1999] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P25 of 1998

B e t w e e n -

JOHN MICHAEL CARATTI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 1999, AT 12.10 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant. (instructed by Davies & Co.)

MR W.S. MARTIN, QC: If the Court pleases, I appear with MR S.D. HALL for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

GAUDRON J:   Yes, thank you, Mr Grace.

MR GRACE:   Your Honours, the issue for the jury in this case was whether the applicant knew that when the forms in question were being signed and when the claims were being made, that the forms were false and the company in question was not entitled to the rebates claimed.

The Crown case, essentially, was that the applicant devised a scheme to obtain the rebates unlawfully and that he well knew that false claims were being made when he signed the forms. 

The defence case was that the applicant had given instructions to a bookkeeper named Ellison to be careful in preparing the forms in question and not include a claim for a rebate for fuel used on the subject tip site at Mindarie which is a northern suburb of Perth.  Further, that he signed claim forms in blank and he had left it to Ellison to complete the forms correctly and trusted him to do so.  He gave evidence that he had never read any of the five forms that were submitted, although he had signed and initialled them at Ellison’s request, and that he did not know and never intended the false claims for rebates would be made.  Ellison was never called by either the Crown or the defence.

In the circumstances of the case, the credibility of the defendant was, not one of the paramount, the paramount question for the jury to determine and so much was recognised by the learned trial judge in his summing up to the jury and just, for example, could I refer your Honours to page 10 of the application book at paragraphs E and F where his Honour highlights that particular issue and I will not read that extract out.

At no time during the course of the Crown case was it alleged by the Crown Prosecutor nor was any attempt made to allege that at the relevant time, which was February and March 1993, the company, Mine Exc Pty Ltd, which was the company the subject of counts 2, 3 and 5, was not operating and therefore not a user of diesel fuel.  The allegation made by the Crown Prosecutor had simply been that the fuel had been used for non-eligible purpose, and the ‑ ‑ ‑

GAUDRON J:   How would such evidence have been relevant in the Crown case, how would it?

MR GRACE:   The evidence would have been relevant to prove that here you had a claim being made by a company for fuel which was not trading, so Mr ‑ ‑ ‑

GAUDRON J:   The issue was knowledge?

MR GRACE:   Yes.  If Mr Caratti signed a claim form on behalf of a company that was not trading, it flew in the face of the annual returns that were tendered as a result of cross‑examination of Mr Caratti at a later stage of the trial.

HAYNE J:   But it all emerged when Mr Caratti said that there was an arrangement for lending of equipment?

MR GRACE:   It was not lending, it was hiring of equipment.

HAYNE J:   Hiring, yes, and had that case or that suggestion emerged in the course of the trial until Caratti gave evidence of it?

MR GRACE:   There had been clear evidence in the trial as to the invoicing arrangements, but the cross-hiring arrangements had not emerged, yes, that is correct.

HAYNE J:   And the cross‑examination by putting the annual return of the company to Caratti appears, on at least one view of events, to have been provoked by the emergence of this story of cross-hiring.

MR GRACE:   We take issue with that, but certainly, that was the Crown justification for doing it.  But the submission is that the impact of this evidence at such a late stage of the trial was very prejudicial, if not devastating.

HAYNE J:   Devastating and prejudicial in the sense that it did not help the accused.  That is a bit different from prejudice as it is known in the law, is it not?  The things that convict accused tend to be a tad prejudicial, do they not?

MR GRACE:   Yes, of course, they are prejudicial, but the use of the documentation in this way created the unfairness.  It prevented the applicant from having foreknowledge of what the Crown case would be in relation to this particular issue.  It was relevant, not only to credibility but also to a fact in issue.  It was relevant to, as I said earlier, the actual signing by him of forms in the name of that company of which he agreed he signed in relation to legitimate fuel rebate application.  So that if this company was not trading during the years in question, the inference can clearly be drawn that the forms were false and false to his knowledge.  So that was the impact of it and it was argued that the use by the Prosecutor in this way was tactical.  There was support from the learned trial judge as to that particular submission.  He commented as to the tactical nature of what had been occurring and the submission made by counsel at the time and throughout the period that this issue came to the fore in the trial was that the trial had irretrievably become unfair and there ought to have been a discharge of the jury.  Of course, that submission was not adhered to or, certainly, consented to by the judge.

HAYNE J:   But the narrow point is was there a splitting of the case?

MR GRACE:   Yes, and could I ‑ ‑ ‑

HAYNE J:   That is, was the Crown proving in cross‑examination material that it ought to have proved as part of its case?

MR GRACE:   Yes.

HAYNE J:   And why was it part of its case to prove this?

MR GRACE:   Because the applicant’s credibility was crucial to the jury’s acceptance or otherwise of his explanation.

GAUDRON J:   But was the Crown to be a mind-reader, or did it have advance notice of the account that the precise that this man was going to give for his overlooking this difficulty?

MR GRACE:   Your Honour is perhaps, with respect, glossing over – there are two issues:  the first issue is the actual signing of the forms.

GAUDRON J:   Yes.

MR GRACE:   The second issue was why it was that the fuel was being invoiced to this particular company that had its name on these forms, or three of the accounts, at least.  He said, in his explanation at to the latter point, that there was a cross-hiring arrangement and it was appropriate that there be an invoice sent to each of the companies that were involved in hiring the equipment to the Mindarie tip site.

HAYNE J:   But why was it part of the Crown case to prove that his company was inoperative, or not operating?

MR GRACE:   Because if it was not operating, then it had no business in filling out forms for any form of diesel fuel rebate.

GAUDRON J:   So be it.  So be it, but the Crown did not have to prove that.  It had to prove knowledge.

MR GRACE:   Yes, and the inference of the knowledge of falsity would be that much stronger by proving that the company was non-operative at the time.  The Crown had possession of this material well prior to the trial.  The Crown also had possession of material including a document in its possession, which the trial judge commented upon, dealing with an issue about propriety.  They had possession of a document, but had not tendered, suggesting that the company concerned was trading during the period in question, and that document was inconsistent with the line of cross‑examination and with what the annual return had said.  Could I take your Honours to page 361 of the trial transcript.  It is a separate documentation.  Do your Honours have page 360?

GAUDRON J:   Yes.

MR GRACE:   This is in discussion with the Prosecutor with the learned trial judge.  At about point 7 on the page his Honour says:

That’s what we’re talking about, aren’t we?  You put it to the witness that Mine Exc was non –operative for the tax years of 92 and 93.

and over the page, top of the page, 361:

Well, let’s look at 92.  That’s one of the propositions you put.

Mr Hall, Prosecutor:

Well, it would appear from that, that there were claims made in 92, whether that means there was work done then or not, I don’t know.  It would certainly seem to be inconsistent with the annual returns submitted for the company.

His Honour:

Be consistent or inconsistent?

HALL, MR:  Inconsistent; it’s inconsistent.

Then jumping a few lines, His Honour:

So you had in your hand a document that was contrary to what you were putting to the witness…...on its face.

Then down the page about point 8:

Why did you put the 92 one in at all then?

HALL, MR:  Well, because I assumed that the company hadn’t been operating for some time because of the face of the annual returns.

Then in the ruling at page 363, at point 4, his Honour says:

I do not intend to comment on the propriety or otherwise of how the matter has been proceeded with save to confirm that there was and is in existence a document which tends to be inconsistent with what the annual returns say.

And that was a ruling in relation to a request discharge and also as to what his Honour ought to direct the jury in relation to this particular issue.

Could I emphasise also that at page 368 his Honour said at point 3:

This case has been characterised by a variety of tactical moves and I have been required to make a number of rulings all of which have been made to ensure the prosecution is able to put its case properly and with propriety and for the accused to be given a fair trial.

These were as a result of complaints by senior counsel for the applicant in relation to not just this issue but in relation to other issues.

So we say that if the Crown was intending to rely upon this material, it should have been part of the Crown case.  It should have been notified to the accused as additional it intended to rely upon, and by proceeding in the manner it did, it has impermissibly split its case, contrary to the principles enunciated in Chin by this Court which, of course, applied previous cases decided by this Court of Shaw, Killick and Lawrence.

HAYNE J:   The real bite in this evidence was that it devastated your client’s credit, was it not.

MR GRACE:   Yes, and ‑ ‑ ‑

HAYNE J:   Not that it proved an element of the offence, but it destroyed his credit before the eyes of the jury.

MR GRACE:   Yes.

HAYNE J:   Destroying an accused’s credit does not seem to me to be splitting the case.

MR GRACE:   Well, in circumstances where it is done by ambush, which we say occurred in this case ‑ ‑ ‑

HAYNE J:   Most destructions of credit are done by ambush, are they not, Mr Grace?

MR GRACE:   Often, but in this case it was done in a way which we say was improper and resulted in impermissible splitting contrary to the principles enunciated in Chin.  Those are the matters on behalf of the applicant.

GAUDRON J:   Yes, thank you, Mr Grace.  Mr Martin, we need not trouble you. 

We are of the view that the Court of Criminal Appeal was correct in not allowing the appeal to that court on the ground advanced in the present application.  Accordingly, special leave is refused.

AT 12.24 PM THE MATTER WAS CONCLUDED