Caratti v the Queen P86/2000

[2001] HCATrans 537

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P86 of 2000

B e t w e e n -

JOHN MICHAEL CARATTI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 3.28 PM

Copyright in the High Court of Australia

MR P.V. BATROS:   May it please your Honours, I appear for the applicant in this matter.  (instructed by Davies & Co) 

MR D.J. BUGG, QC:   If your Honours please, I appear with MS C.A. FLETCHER, for the respondent.  (instructed by Director of Public Prosecutions (Commonwealth)) 

GAUDRON J:   Yes, Mr Batros. 

MR BATROS:   Your Honours, in addressing you briefly and to the point by way of oral submissions in amplification or in support of the written material, but not repeating it, I have had put before the Court - and I trust you have received them – four volumes of ancillary material to which I will be referring.

GAUDRON J:   Four volumes? 

MR BATROS:   There are four bound volumes that were filed at the Registry last Friday. 

GAUDRON J:   Yes, thank you. 

MR BATROS:   If your Honours have not seen them, I will take you directly to them. 

KIRBY J:   We do not normally read through the cases unless they are significant and particular to the matter. 

MR BATROS:   No, your Honour.  I do take that point.  That was simply a courtesy.  But the cases went in, in as book 1, but I can tell you book 2 is the statute law of the various States in the Commonwealth of Australia, to give the Court the comparable statutes, and so that I can explain to you the broad comparable position, which is relevant, of course, to any special leave application as to an indication of how widespread and how important these points are that I will be able to give that to you in brief summary.  Most importantly of all, however, is book 4, and book 4, if I could take your Honours to it, does have an index and summary to it.  Why I have, particularly, had book 4 prepared is to show to the Court, from the actual trial transcript itself - which you do not have amongst the appeal papers ‑ the degree of impact that this Navratil statutory declaration that I am going to be addressing in just a brief moment – the impact that it had.  Because it is so hard, from a lofty higher court position, to ever really evaluate what happened. 

GAUDRON J:   Yes, but the issue must be, in the end, on that question, must it not, whether, assuming it to be inadmissible – and it does not seem to me that that is a matter that has to be addressed, really, unless you come to the conclusion – and this is the question – that the trial judge was virtually obliged, in the circumstances, to discharge the jury.  On the assumption that it was inadmissible. 

MR BATROS:   Quite, your Honour.  I quite accept that, and that is why it is so important to see what the trial judge himself said about the Navratil document at the relevant times during the trial – not only what he said, but what the prosecutor said.  That is why there is the index.  The first five pages of this volume 4 give you an index to it.  I do not suggest that they are a substitution for actually going to check, but the index is correct.  If your Honours looked at it, just for the moment, and, in fact, possibly it is best to look at the actual statutory declaration itself, of Navratil.  These Navratil papers have been put into book 3, a separate book, so that if ever the Court needs to go to look at transcript, for example, it is not tied up in the same book. 

KIRBY J:   We do not have a lot of time.  I think you should just tell us what your point is.  What do you say is the significance of it?  Why did it demand the discharge of the jury…..his Honour’s discretion? 

MR BATROS:   Quite, your Honour.  The reason is that the impact of the admission of this Navratil statutory declaration on this trial was enormous.  It has to be seen and understood, with respect, in the context of the trial.  This was a trial which had reached the eighth week of the Crown case ‑ ‑ ‑

GAUDRON J:   How long did it go for? 

MR BATROS:   The Crown case went another four weeks; the whole trial went four months. 

GAUDRON J:   Yes, well, there you go. 

MR BATROS:   And the accused himself gave evidence in the witness‑box, and rebutted all of the evidence against him, successfully or not, called on his own behalf.  I mention that point because that took up most of the last week, and, of course, the application of the proviso – it becomes relevant to that factor.  But if I come back to this Navratil evidence.  This was an allegation of a conspiracy to defraud the Commonwealth of tax.  The way the case was led by the Crown for the first eight weeks was of an entirely circumstantial and documentary nature.  The Chief Justice says that in his judgment.  So all the jury had heard, up till the time Navratil was brought in, was very boring documentary evidence from a taxation officer, Sheila Rajan, giving certain evidence as to how the tax system worked.  There was very long and tedious evidence from a sergeant of police who had seized an enormous amount of documents from the Caratti offices, and all of these were laboriously tendered. 

Now, the Crown did not call either of the two accountants who had produced these various documents, because one was dead, and because they did not want to call the other one, who was available.  Raffael was dead; Ellison was available, but not called.  The point I am making, though, is that up until this eighth week, when this Navratil declaration was brought in, the case was boring the jury, it was going nowhere, it was purely circumstantial against the applicant, and it did not incriminate him directly.  The only viva voce person of any contact with these books that the Crown had called to that point – and, indeed, called at all – was a receptionist bookkeeper, and she specifically did not associate the applicant with these books.  She associated his father, the patriarch, Sergio Caratti – he acting in close concert with his two accountants, neither of whom were called by the Crown. 

So what the Crown case lacked, and what, unfortunately, this Navratil evidence supplied to them, was some tangible, hands-on, “alive”, if you like, evidence, incriminating John Caratti, the applicant, with being actually involved in this – if it was a scheme, or in this deception of the Commonwealth.  Because up to that point, the defence had successfully cross-examined witnesses to the point where, whilst the books themselves had glaring inconsistencies, and probably falsifications, there was no one who would get up in court and who was able to say, “and John Caratti, the applicant, had to do with it.”  Rather, the evidence was all the other way. 

This Wendy Bottcher, the receptionist bookkeeper to whom I have referred, she was in the witness-box, called by the Crown, for not less than five days – it might well be more than that – because they were relying on her as the person to identify the handwriting of the accountants.  She identified her handwriting, under their direct direction; she expressly said, John Caratti had nothing to do with directing her as to what to put in those books; and the case was going very well for the applicant until Hudson‑Taylor, a tax investigator, was brought in.  It was this evidence, of this Navratil declaration, which gave life to the Crown case.  Not only did it give life to it, but like a drop of ink in a glass of water, it coloured all the evidence that had gone before, the Crown’s way ‑ ‑ ‑

GAUDRON J:   I am not too sure that you are not underestimating the intelligence of jurors, but go on.  I mean, the real issue in this case is whether it can be said that the jurors would not have followed the trial judge’s direction. 

MR BATROS:   Of course, I take your Honour’s point, but when you look at the degree of impact – you see, one cannot evaluate that, with respect, properly until you first get an appreciation of how ‑ ‑ ‑

KIRBY J:   Yes, but as you told her Honour, the trial went on for a considerable time after that, and then there was the charge at the end of it.  The judge told the jury to disregard it; he ruled it inadmissible.  Apart from everything else, some recent empirical research tends to show that jurors do just that.  They do listen very carefully and they obey what judges tell them, as one would hope, expect and hold that they do. 

MR BATROS:   In this case, your Honour, it is not quite that simple, because there another ‑ ‑ ‑

KIRBY J:   You do really have to posit a fact that, patriarch and all, that your client, who was working there, was completely ignorant of the fact that tax was not being paid.  It is a very unlikely scenario, is it not? 

MR BATROS:   He was not ignorant of that, your Honour, but he was not involved in the decision-making of it, and indeed, he believed that it was proper.  He believed that, in the circumstances of the nature of the contracts of employment or the terms of engagement, he, a young man then, believed his father’s representation to him - and that was his evidence - that it was quite proper.  But may I take you to a most important factor which really exacerbates the gross injustice of this case.  What happened was that the jury, having heard what is, in my respectful submission, very florid evidence, and they have absorbed that, it is a counsel of perfection to think that they can then be told to forget it, but worse than that, the judge’s direction was that nobody else ever mentions it again – even though he himself touched on it only, in his final direction.  So he effectively gagged the applicant from replying to this material, on the basis, of course, that if we had raised it again – and we were all told not to – then it would have been revived in the jury’s mind, and that would have defeated the very purpose ‑ ‑ ‑

KIRBY J:   That was done for the protection of your client.  If you had not agreed with that as a protective measure, then it would have been open to you to say, “Well, we would rather have the opportunity to deal with it”. 

MR BATROS:   I would respectfully suggest to your Honour that, in the whole context of this trial, and in the way the judge addressed counsel at the relevant time – and I will take you to his respectful interchange with Mr Rozenes, QC, on this very point – the judge made it clear to us all that we were not to touch the area.  Thus, the accused, now applicant, was not examined in-chief on it, nor was he cross-examined on it, nor did anyone ‑ ‑ ‑

KIRBY J:   But that order of the judge was for your client’s protection, was it not? 

MR BATROS:   We did not ask for that, your Honour.  We asked for a discharge of the jury. 

KIRBY J:   I realise that, but having had that refused, it would have been open to you to say, “Well, now, the matter having come out, respectfully, we ask for the opportunity to deal with it”.  If you do not, and go along with this embargo, and with the judge’s instruction to put it out of mind, it should not have admitted – well, that is the way the trial was conducted. 

MR BATROS:   With great respect, your Honour, my submission is that counsel were in the judge’s hands at that point.  He made it very clear to us that we were not to mention it, and we simply did what we were told.  Could I take you to the actual trial transcript of it, and if I can just mention this interchange between the judge and Mr Rozenes to illustrate to the Court how firmly the judge had this matter in mind.  If I could take you to volume 4, at page 88.  If your Honours have that book, book 4 ‑ ‑ ‑

KIRBY J:   Yes, read on. 

MR BATROS:   At line 16, he says: 

As I say, I remain of the view that the direction in those terms should be given to the jury now and the matter left entirely alone thereafter and that if I was to repeat the direction in the final charge to the jury it could only have the effect of reinforcing –

et cetera.  He goes on to say – in fairness, it goes on: 

it could only have the effect of reinforcing and reminding the jury of the presence of the inadmissible material in the evidence as originally led.  I would, of course, hear counsel if a contrary view was sought to be put to me.  That is my ruling in relation to the matter. 

Now, we go over the page, and at line 10, I, on the basis that this was to be the end of the matter, wanted to get a final, clear statement from the judge, asked: 

just to ensure that I did hear your Honour correctly, is your Honour proposing to say to the jury that they should treat this alleged statement of Mr Caratti as never having been said – affirmatively never having been said? 

And he said:  “Yes”.  Then, Mr Rozenes, who was representing Allen Caratti, a brother and a co-director of Mine Exc ‑ ‑ ‑

KIRBY J:   Who was acquitted. 

MR BATROS:   Who was acquitted by direction. 

KIRBY J:   The mother died, the father died, Allen was acquitted and your client was convicted. 

MR BATROS:   Mother has not died, your Honour. 

KIRBY J:   I am sorry.  I am not sorry, I am happy. 

MR BATROS:   I understand, of course. 

KIRBY J:   She was acquitted, was she? 

MR BATROS:   She was acquitted by the jury. 

KIRBY J:   Yes, I see.  Mr Allen and the mother were acquitted. 

MR BATROS:   Allen Caratti had been acquitted by direction of the judge at the end of the Crown case, on Mr Rozenes’ submission.  But at this point, we had not got to that point, yet.  The point Mr Rozenes was really saying to his Honour was, “Look, I am uncomfortable”.  He did not say this, because he is too polite, but he is really saying:  I am uncomfortable with not being able to refer to this document again, because I have Allen Caratti here, that I am acting for.  He is a co-director of Mine Exc with John Caratti, here is some nice Navratil evidence that has come along and has pointed the finger right at John Caratti and does not mention my client at all.  He, obviously – he had indicated earlier, quite properly, he wanted to use that.  So he says, at line 21: 

Your Honour, I should record a slight dissatisfaction with your Honour’s ruling – not to encourage your Honour to revisit it but only this:  there was some benefit in the statement for Allen Caratti.  The words were chosen carefully and the case for Allen Caratti is the –

He is interrupted then by the judge: 

You mean the words said to have been stated by John Caratti to Navratil? 

Mr Rozenes:  “Yes”.  The judge: 

Mr Rozenes, I don’t see what you could do about that. 

And being there at the time, it was said with finality, and Mr Rozenes took it that way, because he says: 

I will think of some other way, your Honour. 

Meaning, he accepted he was stymied, and we all took that view.  The judge said: 

I suppose it is the old forensic problem, isn’t it, of things that pull different ways? 

Now, there was a finality to his ruling.  It was not open to us, as we saw it, to challenge it, and indeed, the damage was done. 

GAUDRON J:   Well, he did say, he would hear counsel. 

MR BATROS:   I am sorry? 

GAUDRON J:   His Honour did say, he would hear counsel on it. 

KIRBY J:   He did ‑ ‑ ‑

GAUDRON J:   “I would, of course, hear counsel if a contrary view was sought to be put to me.”  Line 23, 24.  Did you seek to put a contrary view? 

MR BATROS:   No, we did not.  Mr Rozenes sought to, and he got short shrift, because it was a courtesy, but the judge’s mind was made up on the matter.  But even if we had said to him, what could we do, what you have is inadmissible evidence that has gone in, and what ‑ ‑ ‑

GAUDRON J:   Well, that is really, as I said to you, the question that you, so far, have not addressed, albeit that your time is running out.  I mean, you have to establish that that document having gone in, your client could never get a fair trial, either that, or that document having gone in and the directions given as they were, there was not a fair trial. 

MR BATROS:   Your Honour, when one looks at the document which is in volume 3, it is so florid in its terms, it is so identifying and damning of John Caratti and associating him with a hands-on management of Mine Exc, and the issuing or not issuing of group certificates, and the paying or not paying of group tax, that when you have a document like that that goes in, that cannot be cross-examined on – because the man is dead – and the jury ‑ ‑ ‑

GAUDRON J:   You keep saying, it went in.  It did not go in.  At the end of the day, it did not go in.  The evidence was given; the jury was told it was inadmissible evidence, they were to pay no regard to it. 

MR BATROS:   But it was read to the jury.  I mean, it does not have to go in.  When the prosecutor tried to tender it, the judge said:  I would rather you marked it for identification, but read it out.  And it was read out to the jury several times.  Once that happens, if it is an inadmissible document which, in my respectful submission, it is ‑ ‑ ‑

GAUDRON J:   Now, when you say, “several times”, what do you mean by that? 

MR BATROS:   The judge himself, at page 271 of the application book, he himself held that it was inadmissible, being prohibited from being put in under section 79C ‑ ‑ ‑

GAUDRON J:   Yes, I am familiar with what the trial judge did.  I am just questioning your statement that it was read to the jury several times. 

MR BATROS:   It was certainly read to the jury.  I will look up the reference to it. 

GAUDRON J:   Well, I know it was read to them once.  I am querying your statement that it was read several times. 

MR BATROS:   I am sorry, your Honour.  It was referred to, the vital part about not paying:  “one fucking cent in tax” – “how can I give you” – that was gone over several times in the course of the examination of Hudson‑Taylor. 

KIRBY J:   So this is a half-page statement by Mr Navratil, in a trial of many, many months, that you say was the fatal blow to your client. 

MR BATROS:   It was pivotal, your Honour.  It brought the Crown case to life.  If it had never been there, as Justice Murray eventually held that it should not be there, then the Crown case would have kept meandering along without a focal point.  Even worse, once it came in, it then cast a shadow over the credibility ‑ ‑ ‑

GAUDRON J:   Again, you seem to be talking only in terms of forensic manoeuvres, and not addressing the question whether there was a fair trial, which is ultimately the question that has to be considered. 

MR BATROS:   My submission, your Honour, is that when that inadmissible evidence went in, and should not have gone in, it changed the colour of the Crown case against Caratti, but it also put him in the shade when it came to his turn to give evidence as to rebutting what was said against him, because it not only enlivened the Crown allegations but when he could not, in fact, rebut it – and I respectfully emphasise that point – that was how the trial was conducted by the trial judge – that no one was to refer to it ‑ ‑ ‑

KIRBY J:   Your time is nearly up.  I think we understand that point.  You raise a constitutional question.  Have you given notice of this? 

MR BATROS:   Yes, your Honour. 

KIRBY J:   And this is not something that you have raised before, is it?  Either at trial, or in the Court of Criminal Appeal. 

MR BATROS:   No, that is true, and the reason for that is, simply, we did not think of it until recently.  That is the truth of the matter. 

GAUDRON J:   But that question only arises if it were on the basis that the Navratil declaration was admissible, does it not? 

MR BATROS:   No, it does not, your Honours, and if you will just give me two more minutes.  Having gone through all the Evidence Acts of Australia, this sort of evidence, not being a business record, could not be admitted.  This is the constitutional point:  it could not be admitted in the courts of any other State or any Commonwealth court, other than Western Australia or the ACT. 

GAUDRON J:   We are still talking about the Navratil declaration. 

MR BATROS:   Yes. 

GAUDRON J:   And it was not admitted.  At the end of the day, it was not admitted.  That is what you have to deal with. 

MR BATROS:   At the end of the day, it was not admitted, but it was effectively put before the jury by reading it to them. 

GAUDRON J:   So the constitutional question only arises on the basis that it was admitted and it was admissible. 

MR BATROS:   Well, it is on the basis that it was inadmissible and it was admitted, and it had a devastating effect on the case, in all likelihood, and

the constitutional point, going back to Leeth-type arguments, is that we just do not have a level playing field in respect of Commonwealth offences when State courts’ Evidence Acts are simply applied ‑ ‑ ‑

KIRBY J:   I understand that point, but her Honour’s point still remains good, that unless you can establish that it was admitted, then you do not get into the vice.  Now, you say:  all right, it was not really admitted, but it did get before the jury.  But the judge ruled that it was not admissible, he excluded it and he instructed the jury not to take it into account ‑ ‑ ‑

MR BATROS:   But only after he first ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ and he said, “I will hear counsel on anything they wish to say about my ruling that it is not to be referred to.”  Mr Rozenes said something; your side said nothing.  You made a forensic decision, which is perfectly understandable:  better to leave this thing quiet.  And I could understand that. 

MR BATROS:   We did not make that decision. 

KIRBY J:   Well, it looks like it. 

MR BATROS:   Your Honour, the evidence was admitted by the judge.  He ruled it was admissible.  Otherwise, it would never have been read to the jury.  What he did not do was to receive it as an exhibit.  I will find that reference ‑ ‑ ‑

KIRBY J:   No, I think I understand that point. 

MR BATROS:   This had a devastating effect on the case.  Thank you. 

GAUDRON J:   Yes, thank you.  Yes, Mr Bugg. 

MR BUGG:   If I could take your Honours to volume 2 of the application book, which contains the decision of the Court of Criminal Appeal.  The Navratil declaration was dealt with by the court at page 280.

KIRBY J:   Was it the only point of direct evidence that linked the present applicant to the offence? 

MR BUGG:   No, your Honour, that is why I was taking you to it.  In fact, his Honour the Chief Justice, at page 285 of this volume of the application book, dealt with some of the evidence which linked the applicant to the transactions and business affairs of the companies through which no tax was paid.  The conclusion of his Honour’s consideration of that evidence is at page 296, about halfway down the page, where his Honour says at paragraph 278: 

The problem with issuing group certificates at the end of the year was that no payments of group tax at all had been made.  He told Messrs Esselink, Morrison and Hislop –

this is the applicant –

that he just could not issue them with group certificates because “we hadn’t paid the debt”.  This, of course, is what in essence he had told Navratil, although in more colourful language. 

So to say the Navratil material was pivotal to the case, and suddenly, the Crown case lit up, really overlooks those ten pages of examination by his Honour the Chief Justice of viva voce evidence of witnesses who said, “I asked the applicant for my group certificate; he told me it was in the mail”.  A whole range of subterfuges were adopted by the applicant, which the jury was entitled to take into account and infer from that the applicant was clearly involved in the fraudulent tax-avoiding transactions that were being undertaken by his father’s companies or companies in which he had an interest, as well. 

If I could just quickly take your Honours through, for instance, at the foot of page 290, paragraph 263, a Mr D.J. Bacon gave evidence: 

that between February and June 1989 he worked at the Blue Funnel mine as an excavator operator employed by Mine Exc.  He was hired ‑ 

and at the foot of the page: 

He never received a group certificate.  He telephoned the appellant about the matter.  He was told his group certificate had been lost and another would be sent to him.  He never received one.  He telephoned the office on a number of occasions over a couple of months including Ms Wendy Bottcher, the secretary. 

Who my learned friend has mentioned.  The next paragraph, 264, talks about Mr Lindsay McFarlane.  Once again, he made contact with the applicant.  Paragraph 265 deals with Mr Orlowski ‑ ‑ ‑

KIRBY J:   And false excuses: 

“your name has been missed out and all the blank forms have been sent back to the Australian Tax Office”. 

MR BUGG:   Yes.  That is the tenor of the viva voce evidence, which lit on some lights in other rooms of the Crown case. 

KIRBY J:   And Mr Orlowski and Mr Large and Mr Esselink ‑ ‑ ‑

MR BUGG:   Mr Esselink ‑ ‑ ‑

KIRBY J:   Mr Morrison ‑ ‑ ‑

MR BUGG:    ‑ ‑ ‑ and then Mr Morrison.  They are some of the people that his Honour mentions in the passage to which I took your Honours.  That passage is at the conclusion of his Honour’s consideration of the other evidence, which linked the applicant with these fraudulent transactions, which clearly showed – outside the documentary evidence, of which there was a great volume – just precisely what the applicant was and what he was doing.  Of course, his defence was that he thought it was all right, and if he was wrong about that, his mental make-up was such –and there was expert evidence about it – he was overborne by his father, and he should not therefore be responsible for what he did. 

KIRBY J:   Is the point asked by Justice Gaudron of the applicant correct, that the constitutional question only arises in the event that the Navratil documentation ought not to have been received, because it is that which is said to come under Western Australian law, which is to create an unequal playing field. 

MR BUGG:   Yes.  Certainly, Justice Gaudron, in my submission, is correct. 

GAUDRON J:   It would be brave of you to say otherwise. 

MR BUGG:   Well ‑ ‑ ‑

GAUDRON J:   There is no need for you to say so in those terms. 

MR BUGG:   I am a long way from home, your Honour, and I do become a little timid the further away I go. 

KIRBY J:   The Court of Criminal Appeal held that the document was admissible, anyway, under the Evidence Act of this State, but we do not have to get to that, in a sense. 

MR BUGG:   No. 

GAUDRON J:   That was just to deal with miscarriage of justice ‑ ‑ ‑

MR BUGG:   Yes. 

GAUDRON J:    ‑ ‑ ‑ to say there was no ‑ ‑ ‑

MR BUGG:   I am quite happy to make submissions in support of the position reached by the Court of Criminal Appeal on that point, your Honour, but you do not have to go to that point if the applicant does not satisfy this Court that he did not receive a fair trial.  Both the trial judge and the Court of Criminal Appeal applied correct principles.  There is no suggestion that they did not.  It is just that the applicant disagrees with the conclusion they came to. 

GAUDRON J:   Well, we do not think we need to trouble you further. 

MR BUGG:   Yes, I have no further submissions, your Honour. 

GAUDRON J:   Anything in reply, Mr Batros? 

MR BATROS:   Only to say that the evidence that the Chief Justice refers to and lists in his application of the proviso, to which my learned friend has received – those are all equivocal.  I have gone through and listed 30 of them.  They are all equivocal aspects of evidence, and they were rebutted, unsuccessfully, of course, by the accused in his oral testimony. 

KIRBY J:   But they do tend to suggest that your assertion that the Navratil affidavit was the absolutely pivotal turning point of the case is pitching the case a little high. 

MR BATROS:   I am just wanting to say one more point to dilute that, with respect, your Honour, and that is that when you analyse that evidence, those people are not talking about Mine Exc.  And this is crucial to the whole case, because the people who gave that sort of evidence – somewhat many of them had no prior dealings with John Caratti at all.  They would go up to the office; they would wander down; they are hired by another company entirely, Dyonna, usually.  They would come to John and they would ask for a group certificate, talking to him because he was there. 

He would check with the accountants, and he would simply relay back to these people about whether the group certificates were lost and were there or not, simply – and this was his evidence – on him having referred it to the accountants.  Now, it is not Mine Exc, and it does not relate, then, back to Navratil.  It is not the same thing as what he said to Navratil, because what Navratil is saying is that:  here is John Caratti, who is in command.  Whereas when John Caratti tells workers 1, 2 and 3, “Look, we have lost the group certificates or there is not one”, and when Caratti’s own

evidence, on oath, is, he got that information from the accountants, then their horse is of a totally different colour.  That is the damage that was done. 

GAUDRON J:   Mr Batros, you have not said anything about the Sutherland Schedules or the companies’ books of account. 

MR BATROS:   No, but I ‑ ‑ ‑

GAUDRON J:   I am not inviting you to.  Do I take it, you do not press those matters? 

MR BATROS:   I do press them, and they are in the written material.  I was supplementing it.  If you would give me the time, I would make a couple of comments on them, very happily. 

GAUDRON J:   I think you have had your time, have you not? 

MR BATROS:   I had seen it that way.  But I am not dropping any of these.  This is only to supplement ‑ ‑ ‑

KIRBY J:   No.  Well, we have read all that. 

MR BATROS:   The documentary nature of this case was most oppressive to the accused, and the non-producing of the people who did the writing in the books by the Crown was enormously oppressive to him.  Thank you. 

GAUDRON J:   Yes, thank you, Mr Batros. 

So far as concerns the admissibility of the various companies’ books of account and the Sutherland schedules, we are of the view that no error is to be discerned in the approach of the Court of Criminal Appeal, nor, in our view, is there any basis for an argument that the trial judge’s discretion miscarried in relation to the Sutherland schedules.

So far as concerns the Navratil declaration, the ultimate issue, assuming that that declaration was inadmissible – and that is a matter upon which we express no opinion – is whether, in the circumstances, the jury should have been discharged.  In this regard, also, there is no basis for questioning the exercise of the trial judge’s discretion.  Having come to that view, no constitutional question arises with respect to the admissibility of the Navratil declaration.

Accordingly, special leave is refused.

AT 4.03 PM THE MATTER WAS CONCLUDED