ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :MARTINO DCJ
File Number            :  IND 1153 of 2002

Catchwords:

Criminal law and procedure - Knowingly making improper use of position as officer of a company - Corporations Law of Western Australia, s 232(6) - Evidence - Admissibility of acts and declarations of others - Criminal enterprise - Whether evidence that appellants had joined such an enterprise - Whether admission of evidence of criminal enterprise a miscarriage of justice - Whether verdict of jury could be supported having regard to evidence - Adequacy of trial Judge's directions - Whether jury properly directed as to the use to which evidence of criminal enterprise appellant said to have joined could be put - Whether sufficient direction as to the particular knowledge, belief or intent alleged to have made the actions of the appellants dishonest - Whether evidence sufficiently separated and singled out in relation to each accused person

Criminal law - Sentence - Whether sentences manifestly excessive - Whether sentence of imprisonment only disposition open in each case

Legislation:

Corporations Act 2001 (Cth), s 1401(2)

Corporations Law of Western Australia, s 232(6), s 1317FA(1)

Result:

Appeals against conviction dismissed
Applications for leave to appeal against sentence refused

Category: A

Representation:

CCA 37 of 2004

CCA 38 of 2004

Counsel:

Appellant: Mr W S Martin QC & Mr S G Scott
Respondent: Mr S D Hall SC & Ms E Needham

Solicitors:

Appellant: Stables Scott
Respondent: Commonwealth Director of Public Prosecutions

CCA 41 of 2004

CCA 84 of 2004

Counsel:

Appellant: Mr M T Trowell QC, Mr J A Davies & Mr S D Freitag
Respondent: Mr S D Hall SC & Ms E Needham

Solicitors:

Appellant: Peter Marks
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Ahern v R (1988) 165 CLR 87
Chew v R (1992) 173 CLR 626
Festa v R (2001) 208 CLR 593
He Kaw Teh v R (1985) 157 CLR 523
Hoy & Ors v R [2002] WASCA 275
Krakouer v R (1998) 194 CLR 20
Lowndes v R (1999) 195 CLR 665
M v R (1994) 181 CLR 487
Mraz v R (1955) 93 CLR 493
Peters v R (1998) 192 CLR 493
R and Attorney‑General (Cth) v Associated Northern Collieries (1911) 14 CLR 387
R v Bilick & Starke (1984) 36 SASR 321
R v Byrnes & Hopwood (1995) 183 CLR 500
R v Byrnes (1995) 183 CLR 501
R v Davidovic (1990) 51 A Crim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark & Forge v The Queen

Details

AGLC: Clark & Forge v The Queen [2004] WASCA 217
Case: [2004] WASCA 217
Decision Date: 29 SEPTEMBER 2004

CaseChat Overview and Summary

The appeal was against their convictions and sentences by the District Court of Western Australia. The appellants were convicted of various counts of dishonestly making improper use of their position as officers of a company in contravention of section 232(6) of the Corporations Law of Western Australia and of obtaining a financial advantage by a dishonest act in contravention of section 1317FA(1) of that law. They were sentenced to imprisonment. The appellants contended that the trial judge erred in admitting evidence of a criminal enterprise to which they were not shown to be connected. They also contended that the trial judge failed to direct the jury properly as to the use to which evidence of the criminal enterprise could be put and as to the particular knowledge, belief or intent alleged to have made the actions of the appellants dishonest. They also contended that the evidence was insufficient to support the verdict and that the sentences imposed were manifestly excessive.

The appeal against conviction turned on whether evidence of the criminal enterprise was admissible and, if so, whether there were errors in the trial judge's directions to the jury as to the use to which such evidence could be put and as to the particular knowledge, belief or intent alleged to have made the actions of the appellants dishonest. The appeal against sentence turned on whether the sentences were manifestly excessive. The Court concluded that evidence of the criminal enterprise was admissible. There were no errors in the trial judge's directions to the jury. The evidence was sufficient to support the verdict. The sentences were not manifestly excessive.

The appeal against conviction was dismissed. The appeal against sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MILLER J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

The provisions of s 1317FA(1) and 232(6) of the Corporations Law are incorporated into the Corporations Act 2001 (Cth) by reason of the provision of s 1401(2) of that Act, which is in the following terms:"1401(2) [New corporations legislation taken to include provisions of old corporations law] For the purposes of subsections (3) and (4), the new corporations legislation is taken to include:(a)the provision of the old corporations legislation (with such modifications (if any) as are necessary) under which the pre‑commencement right or liability was acquired, accrued or incurred; and(b)the other provisions of the old corporations legislation (with such modifications (if any) as are necessary) that applied in relation to the pre‑commencement right or liability." Sections 1317FA(1) and 232(6) of the Corporations Law read:"1317FA(1) [When contravention an offence] A person is guilty of an offence if the person contravenes a civil penalty provision:(a)knowingly, intentionally or recklessly; and(b)either:(i)dishonestly and intending to gain, whether directly or indirectly, an advantage for that or any other person; or(ii)intending to deceive or defraud someone.232(6) [No gain by improper use of position] An officer or employee of a corporation must not, in relevant circumstances, make improper use of his or her position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the corporation." The appellants were tried before Martino DCJ and a jury between 8 and 25 March 2004. At the conclusion of the trial they were each convicted of all counts that they jointly and separately faced on the indictment. They were sentenced by Martino DCJ on 25 March 2004. Clark was sentenced to 18 months' imprisonment on each count, to be served concurrently. An order was made that he be released after 9 months, upon entering into a recognisance release order in the sum of $10,000. The recognisance release order was for a period of 12 months. Forge was sentenced to 2 ½ years' imprisonment on each count, to be served concurrently. An order was made that he be released after 12 months upon entering into a recognisance release order in the sum of $10,000. This order was for a period of 12 months. Clark's grounds of appeal against conviction as amended and after abandonment of some grounds, are:"1.The learned Trial Judge erred in law in admitting evidence of an enterprise ('enterprise') between Allan Endresz, David Muir and Peter Cain when there was no evidence to connect the Appellant to the enterprise whereby there was a miscarriage of justice at trial.2.In the alternative to ground 1, having admitted the evidence of the enterprise into evidence the learned Trial Judge erred in not withdrawing that evidence from the jury at the close of the Crown case whereby there was a miscarriage of justice at trial.3.…4.The conviction was unsafe and unsatisfactory by reason that there was no evidence or any inference available against the Appellant that he was a member of the enterprise and no other evidence capable of supporting a conviction.5.The Crown case being entirely based on circumstantial evidence, the verdict of the jury could not be supported having regard to the evidence.6.…7.…8.In the alternative, if evidence of a criminal enterprise was admissible, the Trial Judge erred in admitting:(a)the evidence of McCartney and Yannopoulos (and associated exhibits), because their evidence related to a different enterprise - namely, the enterprise pertaining to the borrowing of funds to acquire shares in Hallmark;(b)the evidence of Corp, Bunting and Woodhouse (and associated exhibits) as to their opposition to the transactions, because such evidence was not evidence relating to the furtherance of the criminal enterprise and, if and to the extent admissible against Forge, should have been the subject of a direction by the Trial Judge to the effect that it was not admissible against Clark.9.In the further alternative, if evidence of a criminal enterprise was admissible, the Trial Judge erred in failing to direct the jury adequately or at all as to:(a)the particular evidence that was evidence of the enterprise which the Appellant was said to have joined and which could not be used for the purpose of deciding whether the Appellant had in fact joined the enterprise;(b)the evidence to which the jury should have regard in deciding whether the Appellant had joined the alleged enterprise;(c)the particular knowledge belief or intent which was said to render the Appellant's actions dishonest."

Actions

Citations

Clark & Forge v The Queen [2004] WASCA 217

Most Recent Citation

S a J v The Queen [2012] VSCA 243

Cases Citing This Decision

Pesec v Consolidated Builders Ltd [2019] ACTSC 142
Citation 1 (Para 1)

…any, avoiding conflicts of interest and not improperly using the position of director to obtain a personal advantage. Cases such as Clark v The Queen [2004] WASCA 217; 50 ACSR 592; Gerard Cassegrain & Co Pty Ltd (in Liq) v Cassegrain [2013] NSWCA 455; 97 ACSR 283; and, Holyoake Industries (Vic) Pty Ltd v V-Flow Pty…
Commissioner of the Australian Federal Police v Courtenay Investments Ltd (No 4) [2015] WASC 101
Citation 2

…ion) [1998] HCA 26; 192 CLR 557 Chapman v Brown (1801) 6 Ves Jun 404; 31 ER 1115 Chew v The Queen [1992] HCA 18; (1992) 173 CLR 626 Clark & Forge v R [2004] WASCA 217 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Commissioner of Australian Federal Police v Fysh [2013] NSWSC 81…
S a J v The Queen [2012] VSCA 243
Citation 3 (Para 1)

…In Clarke & Forge v The Queen ,[57] the Western Australian Court of Appeal held that ‘dishonestly’ in s 1317FA(1) had the Peters meaning. [57](2004) 50 ACSR 592.…
Australian Securities and Investments Commission v Forge [2007] NSWSC 1489
Citation 4

…ng, 2nd ed, 1979 Rahme v R (1989) 43 A Crim R 81 Australian Securities and Investments Commission v Loiterton (2004) 58 ACSR 693 Clark v R; Forge v R (2004) 50 ACSR 592 Briginshaw v Briginshaw (1938) 60 CLR 336 PARTIES: Australian Securities and Investments Commission v William Arthur Forge & 5 Ors FILE NUMBER(S): SC…
Kwok v R [2007] NSWCCA 281
Citation 5

…cluded the phrase “dishonestly” and that has been construed as incorporating the approach set out in Peters [ Clark and Forge v The Queen (2004) 50 ACSR 592].…
R v Braysich [2006] WASCA 220
Citation 6 (Para 1)

…In Clark & Forge v The Queen [2004] WASCA 217; (2004) 50 ACSR 592, the prosecution case against each of the appellants was to the effect that they had each belatedly, and at different times, become participants in a common and unlawful enterprise to obtain control of a company and use its cash resources for an ulte…
Harmer v The Queen [2005] WASCA 101
Citation 7

…Dinsdale v The Queen (2000) 202 CLR 321 Lowndes v The Queen (1999) 195 CLR 665 R v Chan (1989) 38 A Crim R 337 Clark v The Queen; Forge v The Queen (2004) 50 ACSR 592 R v Greenburg (1993) 68 A Crim R 392 R v Barrick (1985) 81 Cr App Rep 78 R v Wilkinson (1996) 85 A Crim R 353 R v Thomson [2003] VSCA 164…

See all citing cases →

Cases Cited

R v Masters [2021] NSWDC 315
Citation 1 (Para 17)

…s a participant in the enterprise to which I have referred. I would, in that regard, be of the view expressed by the Court in the case of R v Masters (1992) 26 NSWLR 450 at 463, and in R v Gouroff (1979) 1 A Crim R 367 at 373.…
Galea v Galea [2015] NSWCCA 215
Citation 2 (Para 2)

…id, apart from the blemishes to which I have referred, essentially comply with the requirements of a Judge's charge to a jury as set out in R v Zorad (1990) 19 NSWLR 91 at 105: "A summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an…
The Queen v Shane Edmund Johnson [2003] ACTSC 78
Citation 3 (Para 5)

…In Hoy & Ors v R [2002] WASCA 275 at [46] ‑ [48], I made reference to the more recent observations of members of the High Court in Festa v R (2001) 208 CLR 593, to the following effect: "46 In Festa v The Queen (2001) 76 ALJR 291, McHugh J considered this passage in considerable detail. His Honour concluded (at [120]…
R v Frank John Fischetti and R v Avinash Bhardwaj Sharma [2003] ACTSC 10
Citation 4 (Para 5)

…nce to the more recent observations of members of the High Court in Festa v R (2001) 208 CLR 593, to the following effect: "46 In Festa v The Queen (2001) 76 ALJR 291, McHugh J considered this passage in considerable detail. His Honour concluded (at [120]) that what had been said by Barwick CJ in Driscoll v The Queen…
Hoy v The Queen [2002] WASCA 275
Citation 5 (Para 5)

…In Hoy & Ors v R [2002] WASCA 275 at [46] ‑ [48], I made reference to the more recent observations of members of the High Court in Festa v R (2001) 208 CLR 593, to the following effect: "46 In Festa v The Queen (2001) 76 ALJR 291, McHugh J considered this passage in considerable detail. His Honour concluded (at [12…
Festa v The Queen [2001] HCA 72
Citation 6 (Para 5)

…48], I made reference to the more recent observations of members of the High Court in Festa v R (2001) 208 CLR 593, to the following effect: "46 In Festa v The Queen (2001) 76 ALJR 291, McHugh J considered this passage in considerable detail. His Honour concluded (at [120]) that what had been said by Barwick CJ in Driscoll…
Lowndes v The Queen [1998] HCATrans 376
Citation 7 (Para 1)

…can be properly argued that the sentences were excessive in any way. The case is a classic application of the principle clearly stated in Lowndes v R (1999) 195 CLR 665 at [15]: "The principles according to which an appellate Court may interfere with such a discretionary judgment by a sentencing judge are well establ…
Krakouer v The Queen [1998] HCA 43
Citation 8 (Para 6)

…A statement to similar effect is to be found in Krakouer v R (1998) 194 CLR 202 per Gaudron, Gummow, Kirby and Hayne JJ at [23] ‑ [24].…
Peters v the Queen [1998] HCA 7
Citation 9 (Para 4)

…, and, in addition, as these appellants were indicted, their conduct was required to be established to be dishonest, within the meaning of Peters v R (1998) 192 CLR 493, where it was held that, in relation to the offence of conspiracy to defraud under the Crimes Act 1914 (Cth), the concept of dishonesty imported a ju…
M v the Queen [1994] HCA 63
Citation 10

…001) 208 CLR 593 He Kaw Teh v R (1985) 157 CLR 523 Hoy & Ors v R [2002] WASCA 275 Krakouer v R (1998) 194 CLR 20 Lowndes v R (1999) 195 CLR 665 M v R (1994) 181 CLR 487 Mraz v R (1955) 93 CLR 493 Peters v R (1998) 192 CLR 493 R and Attorney‑General (Cth) v Associated Northern Collieries (1911) 14 CLR 387 R v Bilick &…
QUESTION of LAW RESERVED on ACQUITTAL PURSUANT to SECTION 350(1a) CRIMINAL LAW CONSOLIDATION ACT (No 2 of 1993) No. 4152 Judgment No. SCCRM 93/90 Number of Pages - 10 Criminal Law and Procedure - Constitutional Law... [1993] SASC 4152
Citation 11 (Para 8)

…erprise are admissible against the accused to show the nature of the enterprise the accused joined. The authority for that is R v Bilick and Starke (1984) 36 SASR 321 at 331. The letter of 14 September 1998 and the forwarding of it to Mr McCartney shows that Messrs Endresz, Muir and Cain planned at that date to acqui…
Chew v The Queen [1992] HCA 18
Citation 12 (Para 7)

…The approach taken was that authorised by the High Court in relation to the earlier state uniform Companies Codes , s 229(4): Chew v R (1992) 173 CLR 626, and R v Byrnes (1995) 183 CLR 501. In those cases it was made clear that the test of impropriety is objective. But as I have pointed out, in respect of the offence…
Ahern v The Queen [1988] HCA 39
Citation 13 (Para 2)

…arned trial Judge clearly admitted evidence of common enterprise on the basis of the principles set out in Tripodi v R (1961) 104 CLR 1 and Ahern v R (1988) 165 CLR 87. In Tripodi v R the prosecution case was that in the commission of a crime, a number of persons had acted in preconcert. The question was whether, on…
He Kaw Teh v The Queen [1985] HCA 43
Citation 14 (Para 3)

…on of the offence by s 1317FA because the contravention must occur knowingly, intentionally or recklessly (as to which see generally He Kaw Teh v R (1985) 157 CLR 523) and, relative to the way in which these appellants were indicted, dishonestly and intending to gain, directly or indirectly, an advantage for any pers…
R v Storey [1978] HCA 39
Citation 15 (Para 5)

…ur concluded (at [120]) that what had been said by Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517 at 524 - 525 and before that in R v Storey (1978) 140 CLR 364 at 376, contained the correct principles to be applied to the interpretation of the proviso. In the first of those cases Barwick CJ said: 'It is notice…
Driscoll v The Queen [1977] HCA 43
Citation 16 (Para 5)

…ugh J considered this passage in considerable detail. His Honour concluded (at [120]) that what had been said by Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517 at 524 - 525 and before that in R v Storey (1978) 140 CLR 364 at 376, contained the correct principles to be applied to the interpretation of the provi…
Tripodi v the Queen [1961] HCA 22
Citation 17 (Para 2)

…The learned trial Judge clearly admitted evidence of common enterprise on the basis of the principles set out in Tripodi v R (1961) 104 CLR 1 and Ahern v R (1988) 165 CLR 87. In Tripodi v R the prosecution case was that in the commission of a crime, a number of persons had acted in preconcert. The question was whet…
Mraz v The Queen [1955] HCA 59
Citation 18 (Para 4)

…In Mraz v R (1955) 93 CLR 493 at 514, in a judgment generally regarded as authoritative on the meaning of the proviso to s 689(1) of the Criminal Code (although the provision was s 6(1) of the Criminal Appeal Act 1912 (NSW)), Fullagar J said: "It is very well established that the proviso to s 6(1) does not mean that…
Jenyns v Public Curator (Qld) [1953] HCA 2
Citation 19 (Para 7)

…as that authorised by the High Court in relation to the earlier state uniform Companies Codes , s 229(4): Chew v R (1992) 173 CLR 626, and R v Byrnes (1995) 183 CLR 501. In those cases it was made clear that the test of impropriety is objective. But as I have pointed out, in respect of the offence charged in these ca…
Alford v Magee [1952] HCA 3
Citation 20 (Para 2)

…evidence: Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497 at 522-523: Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 323 and Alford v Magee (1952) 85 CLR 437 at 466. This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant pa…
Mowlds v Fergusson [1940] HCA 38
Citation 21 (Para 2)

…ef outline of the arguments which have been put in relation to that evidence: Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497 at 522-523: Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 323 and Alford v Magee (1952) 85 CLR 437 at 466. This is a rule which appears increasingly to be ignored by trial judges. It is no…
R v Associated Northern Collieries [1911] HCA 73
Citation 22 (Para 7)

…ed by the same evidence. It quoted with approval the following passage of Isaacs J in R and Attorney‑General (Cth) v Associated Northern Collieries (1911) 14 CLR 387 at 400: "… though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of ti…

Legislation Cited

Corporations Act 2001 (Cth) 1401(2)
2 mentions (from Para 2)
Crimes Act 1914 (Cth)
1 mention (from Para 4)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 4)