Collie v Director of Public Prosecutions for the Commonwealth of Australia

[1994] HCATrans 192

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M3. of 1993

B e t w e e n -

IAN DAVID STAFFORD COLLIE

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

FOR THE COMMONWEALTH OF

AUSTRALIA

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J

MCHUGH J

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TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 FEBRUARY 1994, AT 10.15 AM

Copyright in ·the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my

learned friend, MR J.R. WEBB, for the applicant.

(instructed by Cleary Hoare Hart Grant)

MR M.S. WEINBERG, QC: If the Court pleases, I appear with

my learned friend, MR P.A. COGHLAN, on behalf of

the respondent. (instructed by M. Rozenes, QC,

Director of Public Prosecutions (Commonwealth))

DEANE J: Yes, Mr Jackson.

MR JACKSON:  Your Honours, the applicant's submissions are

set out in the written submissions which the Court

will have seen. There are several matters which I

wish to mention by way of oral submissions.

This is, of course, an interest of justice

case, if I can put it shortly, and may I make some

submissions in relation to particular aspects

appearing from the written submissions; they are

these.

Your Honours, the applicant's case is that the central issue at the trial was whether the accused, including the applicant, had no belief in the

lawfulness of the relevant scheme.

Could I refer in that regard to our written

submissions, to annexure E, to them, which sets out

part of the charge to the jury, the relevant page

number at the bottom of the page being 1850. The

document is about half-way through the book that

has been prepared.

Your Honours will see in the paragraph in the

middle of that page that His Honour sets out what

he describes at the start of the next paragraph as

being the central issue in the case. I will not

read it out but I would invite Your Honours to read

that paragraph.

In support of that case the Crown contended,

amongst other things, first that the accused had

not attempted to obtain advice on the efficacy of

the scheme. And secondly, that it was obvious to

any educated professional person that the scheme

was inefficacious, or bogus. There is a summary in

paragraph 12 of our written submissions. May I

take Your Honours to the documents there referred
to. First, if I may do so, to annexure D to our

submissions, to two passages in the opening to the

jury, and I propose after that to come to the

charge to the jury. Annexure D has a page

numbered 129 and Your Honours will see at page 129,

the end of the second paragraph, in the opening on

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behalf of the Crown to the jury, Mr Baker, whose

activities were the genesis of the scheme:

Mr Baker apparently does not want to know

whether the magic works, because he does not
seek any advice about it.

Then, Your Honours, a few pages on, the one

numbered 133 at the bottom of the page, the
penultimate paragraph:

It is significant that neither

Stone James nor Forsyth are asked to advise on

the sales tax liability of A, Band C -

Your Honours, so far that is the opening. May

I come then to the charge to the jury to show that the matter was elaborated upon and its importance

emphasized. Your Honours, annexure D contains the
charge to the jury. First, page 1883 where at the

top of the page Mr Fitzgerald's submissions are

referred to:

he put that the scheme was a fraudulent, bogus

scheme whose ineffectiveness to legally avoid

tax was perfectly apparent to educated

professional persons such as the present

accused.

Then, Your Honours, the next page 1884, the passage

commencing about ten lines down the page, if I

could pick it up mid-sentence:

and he submitted that it was apparent to

anybody, that on any view -

and, Your Honours, that goes through to the end of

that paragraph:

apparent to any intelligent, educated,

professional man that the A, B, C operations

did not eliminate sales tax.

On the same page about eight lines from the bottom

of the page:

The scheme was a patently bogus scheme and you

should be satisfied that it was understood as

such by each of the accused men.

If I could move then to page 1886, the second

half of the paragraph commencing about the middle

of the page:

Accordingly, Mr Fitzgerald submitted the

persistence and careful refusal to get an

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opinion upon the efficacy of the A, B, C

transactions makes it apparent -

and so on.

Finally, Your Honours, at the bottom of the

next page 1887, Your Honours will see the same

thing being said and throughout the paragraph to the remainder of that paragraph to half-way down

page 1888, including both the second aspect in the

last sentence of that paragraph:

It is significant according to the Crown -

et cetera.

The material before the Court of Criminal

Appeal, but not at the trial, was relevant to both

those matters.	Your Honours, may I mention two
aspects of it.

The first concerns the evidence of Mr Forsyth

given at a later civil trial when sued by the

applicant. Your Honours, may I note in passing

that that evidence has been described in our
learned friend's submissions, without further
elaboration of the proposition, as being

selectively quoted. However, the reason for the selectivity or something to demonstrate that has

not appeared yet.

Mr Forsyth's evidence showed that he, an

educated lawyer, was not of the view that the

scheme was fraudulent. We have referred to the

detail of that in our written submissions and,

Your Honours, I shall not go through it. But may I

say in relation to it that the Court of Criminal

Appeal did not refer at all to that evidence except

in the introductory way referred to at page 233 of

the appeal book. Your Honours will see the first

10 or 12 lines on the page in which what is said,

about line 15: 

in the course of that trial Forsyth gave sworn

evidence during the course of which he

produced or identified a number of documents.

The appellant has contended that those

documents constitute fresh evidence.

The way in which the matter was dealt with by the

Court of Criminal Appeal, apart from the very end
of its reasons, was to go through the documents one

by one. There is no reference, apart from the

passage to which I have just referred, to

Mr Forsyth's evidence specifically. It is

clear - - -

Collie 4 4/2/94

DEANE J: But is there not a bit of a gap between the

question whether A, Band C were liable for sales

tax, and Mr Forsyth's stated view that he did not

think that the scheme was fraudulent?	I mean, are
they not different questions?

MR JACKSON:  Your Honour, those two questions, I would

accept immediately, are. Could I just say however

that the Crown case in the passages to which I

referred earlier and including particularly, of

course, that recorded in the the judge's charge to

the jury, were based on the proposition that any

educated lawyer looking at it would treat the

scheme as being one that was obviously bogus,

fraudulent -.various adjectives of that kind used

in relation to it.

DEANE J:  But in the sense that A, B or C were going to be

liable for sales tax and that your client

presumably would be aware that the sales tax would

not be paid.

MR JACKSON:  Your Honour, his case that he sought to put

before the jury was that Mr Forsyth had given an opinion upon which he relied and that if Forsyth

had regarded the scheme as one which had anything

wrong with it, he would have said so.

DEANE J:  I thought that the basis of Forsyth's view was not

that he thought A, B or C would not be liable for

sales tax, but either that he thought if there was

such liability it would be paid or he somehow

thought that what concerned A, Band Chad nothing

to do with the other players involved.

MR JACKSON:  Your Honour, if one accepts that as being the

correct view of it. Could I just say in relation

to it that the ultimate question of course was what

was the state of mind of the applicant. And in

relation to the applicant's state of mind -

Your Honour, it depends a little on how the case

was run, and the case being run for the Crown was

one that said, the view should be taken by the jury

that the state of mind of the applicant was the

guilty state of mind, because any educated person

would take the view that the scheme was no good and

so on and should have known that it was a

completely bogus scheme.

Your Honour, the point I was just seeking to

make simply, in relation to Forsyth's evidence, was

to say that if one looks at his evidence it seems

apparent enough that it would be open to a jury to

take the view that the contention being advanced on

behalf of the Crown was not right, because he was

someone who did not express the view that this

scheme was fraudulent and necessarily efficacious.

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DEANE J: Yes, I follow that, but simply so that I can make

sure you appreciate what is troubling me about your

submissions is, it does not seem to me that

Forsyth's evidence says much to the matters that

you have referred us to, which seem to me to be

directed to whether anyone would have known that A,

B or C was going to be liable for sales tax under

this scheme.

MR JACKSON:  Your Honour, I am sorry. There are two

aspects, of course. That is one aspect. The other
aspect is the one that I was referring to in the

last reference that I gave, and that was the

question - it was said to be significant - that:

Mr Fitzgerald submitted you should infer that

the accused refrained from seeking advice

because they well understood that the scheme

did not legally avoid tax.

And the point that I was seeking to make was that

the evidence of Forsyth, combined with what had

been said by the accused, would be that he relied

on what Forsyth said and Forsyth's evidence would
have been that, if he had had any view that the

scheme involved any fraud, he would have said so.

Your Honours, perhaps I should say, in

relation to this, just two more things; the first,

Your Honours, is this, that if one looks at the

document which is annexure F to our written

submission, which is a document handed up towards

the conclusion of a case in the Court of Criminal

Appeal, there was a summary of what ultimately was being said, and you will see, if you look - said on

our behalf, because the applicant was representing

himself - particularly in paragraphs 3, 5 and 6

that there was specific reliance by him on

Forsyth's evidence.

Your Honours, all that was said by the Court

of Criminal Appeal in relation to the issues to

which I have referred is what appears at page 256

in the passage commencing at about line 46 and
going on to the top of the next page. Our

submission is that that court should have dealt

with the matter.

Could I move then to the second aspect I

wanted to mention particularly. The additional

written material was relevant on the question

whether advice had been sought about the efficacy

of the scheme. Could I go back for just a moment

to annexure E, the charge, at page 1884, and

Your Honours will see that it said, for example, it

was apparent to anybody that it was patently bogus,

and so on.

Collie 6 4/2/94

The documents showed that the whole scheme had

been disclosed and the justification for it and

that there was no such comment made about anybody

concerned with it. It had been disclosed to both Forsyth and O'Connor. Your Honours will see that

from the documents, if I could go very briefly to

them.

At page 105 of the application book, FEl,

Your Honours will see particularly paragraphs 1),

4) .and 5). The document which is FE3, at

page 108 - and Your Honours will see the request at

the start of the document and then the reasoning

lying behind the scheme is set out on the

succeeding pages. Then FE4, which was the brief

given to Mr Forsyth, at page 113.

Your Honours, in circumstances where the case

against the applicant was mounted in the way I have
indicated, in our submission, the presence of this
material must have been of significance because

what it showed was that the material had been given

to those who were the educated professional people

and no one of them made any comment to the effect

that the scheme was one that was, for example,

patently bogus, to use those words.

Your Honours, the Court of Criminal Appeal, in

dealing with those documents, did not, in our

submission, give them any proper significance.

Could I go to page 248 where they deal with FEl, in

a heading at about line 12. Your Honours will see

at line 20:

Advice was sought as to any possible

liability ..... This letter standing alone

cannot take matters further. It is O'Connor's

answer that alone might assist the appellant.

Your Honours, with respect, that is not correct because the request detailing the matter indicated

disclosed, and it was not just O'Connor's answer	the fact that advice had been sought, the scheme
that was material. Then if one goes, in relation
to the document FE3 on the next page at about line 36, Your Honours will see discussion of it, and
then at the top of the next page, about line 7, it

said, commencing the sentence:

At most the pursuit ....• establishes that

Mr Fitzgerald was wrong in claiming in his

opening of the Crown case to the jury that

"Baker didn't want to know about fraud".

Your Honours, of course it went far beyond just the

opening to the jury, there was the whole charge to

Collie 7 4/2/94

the jury by the judge dealing with this.

Similarly, FE4,·at the bottom of the page, line 41:

Beyond supporting the claim -

et cetera, and it went, again, beyond that.

Your Honours, there are some other matters which I

wish to mention arising from the respondent's
written submissions, and I shall endeavour to do

those quickly.	The first arises from paragraph 19
at page 9.	It said in the second sentence:

The case against him was strong.

Your Honours' views, no doubt, differ about the weight of cases and they can have a partisan

aspect, but even if it were a strong case at the trial, the question before the Court of Criminal

Appeal on the hearing of the petition was a quite

different matter. And if it were strong, all the

more relevant potentially was the additional

material. Your Honours, a similar observation may

be made about what appears in paragraph 16, in the

concluding sentence. Could I also say that the

reference in paragraph 15, in the last sentence, to

use of the supplementary opinion was, in fact, use

on behalf of another accused.

Your Honours, the last thing I wish to say is

that the statement in paragraph 16, in the second
and third sentences, should be read, in our

submission, as reflecting what was summarized by

the Court of Criminal Appeal at page 231,

commencing at line 20 and following.	Your Honours,
those are our submissions.

DEANE J: Thank you, Mr Jackson. The Court need not trouble

you, Mr Weinberg.

Having read the written material in this

application, and notwithstanding the oral

submissions of Mr Jackson, QC, the Court does not

consider that an appeal in this matter would enjoy

sufficient prospect of success to warrant the grant

of special leave to appeal.

Accordingly, the application is refused.

AT 10.37 AM THE MATTER WAS ADJOURNED SINE DIE

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