Doja v R - [2009] NSWCCA 303

No judgment structure available for this case.

Reported Decision: 198 A Crim R 349

New South Wales

Court of Criminal Appeal

CITATION: Doja v R [2009] NSWCCA 303

HEARING DATE(S): 18 September 2009

JUDGMENT DATE:
18 December 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 62; Grove J at 181

DECISION: 1. Appeal against conviction dismissed.
2. Leave to appeal against sentence granted but the appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal - conviction appeal - defective indictment - failure to aver to the mental element of the offence - whether the defect was such as to render the indictment invalid - whether the defect has been cured by the jury verdict - whether the defect has been waived - whether the proviso should be applied - indictment not invalid - whether jury was misdirected by the trial judge - appeal against conviction dismissed - CRIMINAL LAW - appeal - sentence appeal - whether trial judge erred in his findings - little difference in criminality involved in an offence constituted by knowing falsehood as opposed to reckless disregard to the truth in this case - appeal against sentence dismissed

LEGISLATION CITED: Corporations Act 2001 (Cth)
Corrupt and Ilegal Practice Prevention Act 1883.
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Act 1968 (UK)),
Criminal Justice Amendment Act (1853)
Criminal Law Act 1977 UK
Criminal Law Amendment Act 1883
Criminal Procedure Act 1986
District Court Act 1973
Justices Act 1902 (NSW)

CATEGORY: Principal judgment

CASES CITED: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Boujaoude v The Queen [2008] NSWCCA 35; (2008) 72 NSWLR 85
Broome v Chenoweth (1946) 73 CLR 583
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Chanthaboury v The Queen [2007] NSWCCA 290; (2007) 176 A Crim R 438
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Glennon v The Queen (1993) 179 CLR 1
Heymann v The Queen (1873) LR 8 QB 102
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
Kahatapitiye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542
Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366
Lodhi v R (2006) NSWCCA 121; (2006) 199 FLR 303
Lodhi v R [2006] NSWCCA 101; (2006) 65 NSWLR 573
Mackrell v Western Australia [2008] WASCA 228; (2008) 190 A Crim R 43
Pollard v DPP (1992) 28 NSWLR 659
Quartermaine v The Queen (1980) 143 CLR 595
R v Aspinall (1876) LR 2 QBD 48
R v Ayres [1984] 1 AC 447
R v Gervaise; R v Preece (NSWCCA, 13 November 1997, unreported)
R v Grant (1986) 82 Cr App R 324
R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
R v Mai (1992) 26 NSWLR 371
R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407
R v McVitie (1960) 2 QB 483
R v Molyneux (1981) 72 Cr. App. R 111
R v Morris (NSWCCA 25 November 1996, unreported)
R v Pickford [1995] QB 203
R v Searle [1995] 3 CMLR 196
R v Stroulger (1886) 17 LR QBD 327
R v Tonner [1985] 1 WLR 344
R v Zemmel (1985) 81 Cr App R 279
Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7
Strano v R [2002] NSWCCA 531
Swansson v The Queen [2007] NSWCCA 67; (2007) 69 NSWLR 406; 168 A Crim R 263
Taylor v The Queen [1895] 1 QB 25
The Queen v Rebecca Goldsmith (1873) Law Rep 2 Cr 74
Traveland Pty Ltd v Doherty (1982) 6 A Crim R 181
Wilde v The Queen (1987) 164 CLR 365

TEXTS CITED: 14th edition of Archbold’s Pleading & Evidence in Criminal Cases
The History of Pleas of the Crown (1736) vol 2 at 193
Principles of Penal Law, 2nd ed (1771) at 181-182
A Practical Treatise on the Criminal Law (1816) vol 1 at 169-170)

PARTIES: Tunde Doja (Appellant)
The Crown

FILE NUMBER(S): CCA 2006/15415

COUNSEL: J I Ghabrial (Appellant)
W J Abraham QC (Crown)

SOLICITORS: O'Connor Legal (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0707

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 28 March 2008

2006/15415

SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J
FRIDAY, 18 DECEMBER 2009

DOJA, Tunde v R

Judgment

1 SPIGELMAN CJ: I have had the advantage of reading the judgment of McClellan CJ at CL in draft. His Honour sets out the relevant facts, statutory provisions and submissions. I agree with his Honour’s reasons with respect to the sentence appeal. I agree with his Honour on Ground 3. I wish to state my own reasons with respect to Grounds 1 and 2.

2 As McClellan CJ at CL indicates, counts 13 and 14 failed to expressly state the mental element of the offence under s 178BB of the Crimes Act 1900. The Crown submitted that this Court should reject Grounds 1 and 2 in the Notice of Appeal a number of alternative bases:

(i) The defect was not such as to render the indictment invalid;

(ii) The defect has been cured by the verdict;

(iii) The defect has been waived;

(v) There was no substantial miscarriage of justice and the proviso to s 6(1) of the Criminal Appeal Act 1912, should be applied .

A Fundamental Principle

3 It is important to state at the outset that it is a fundamental principle of the criminal law that an indictment must, to adopt the terminology of Hunt CJ at CL in R v Mai (1991) 26 NSWLR 371 at 377, “disclose an offence punishable by law”. This is a longstanding principle. (See, eg, Broome v Chenoweth (1946) 73 CLR 583 at 594-595, 600-601; Johnson v Miller (1937) 59 CLR 467 at 486; Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261; Traveland Pty Ltd v Doherty (1982) 6 A Crim R 181 at 188.) Accordingly, statutory provisions which permit defects to be overlooked have not been interpreted to “enable a magistrate to convict of an offence upon an information which discloses no offence”. (Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 173.)

4 To give one, directly relevant, example, the failure to plead the mental element of the offence was one of the defects identified in the indictment considered by this court in Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 at [91]. The normal result of a defect of this character is a finding that there has been no trial. It is convenient to describe such a trial as a nullity. (See, eg, R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 esp at [52] per Bell J with whom Simpson and Buddin JJ agreed.) However, that word must be used with care and should be understood to signify that there has been no trial in accordance with the law. (See Swansson v The Queen [2007] NSWCCA 67; (2007) 69 NSWLR 406 at [60]-[66].)

5 There is no doubt that the law takes a different view of technicalities in the criminal law than it once did. Nevertheless, an indictment performs a number of important functions in the administration of criminal justice. See R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [52]-[53], [205]:

(i) Informing the court of the precise identity of the offence with which it is required to deal.

(ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients.

(iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law.

(iv) Determining the availability of a plea of autrefois acquit and autrefois convict.

(v) Investing the trial court with jurisdiction to hear and determine the prosecution.

6 There is a discernable tendency to focus on the role of an indictment as a step in the process of ensuring an accused is given procedural fairness. It is, however, important not to lose sight of the other functions of an indictment.

7 The relevant function for the present case is the role to confer jurisdiction upon the Court. (John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519; Janceski supra at [53].)

8 Pursuant to s 166(1) of the District Court Act 1973, that court has the jurisdiction conferred by the Criminal Procedure Act 1986. Section 46(2) of the latter Act confers jurisdiction on the District Court in respect of indictable offences. Section 5(1) of the Criminal Procedure Act requires any proceedings that are not identified as summary to be “dealt with on indictment”. There is no statutory definition of “indictment” applicable to s 5. The word bears the same meaning that it has at common law.

9 There are circumstances in which a document which purports to be an indictment will be held not to be such. It is convenient to speak in terms of a “valid” indictment as the relevant requirement of the statutory regime. In many circumstances such validity is jurisdictional.

10 Chapter 3 Pt 3 Div 2 of the Criminal Procedure Act provides for the commencement of criminal proceedings which, subject to the regulations and rules for which s 127 provides, requires a valid indictment. Sections 16(1) and 17(2), to which I will refer, modify the circumstances which, at common law, would prevent a document answering the description of an indictment. Furthermore, sections 17(2), 20 and 21 permit amendment of an indictment in circumstances which would not have been permitted at common law.

11 Subject to the operation of these sections, an indictment remains open to challenge on what may be regarded as technicalities. In Janceski supra, Howie J (with whom Hunt AJA and Johnson J agreed), commented on what he described as “the technical nature of the defect” in the indictment there under consideration at [224]:

“If the conviction is quashed as a result of this defect, it will not be the first or last time that such a result has followed what, on any view, is a highly technical objection raised after what has apparently been a fair trial. Even accepting, as I do, that there has in more recent times been a relaxation of some of the technicalities that plagued the administration of the criminal justice system in past centuries, there is still a rigorous approach taken by this and other courts to the fundamental requirements of a criminal trial regardless of the consequences.”

12 His Honour went on to identify cases in which strict observance of the technicalities of a criminal trial had been insisted upon. He indicated that the purpose of the statutory provision under consideration in Janceski, namely that the person signing the indictment was formally authorised to do so, had not been served. (See eg at [263].)

13 To similar effect were my own observations at [98]:

“… The courts have always insisted on punctilious compliance with legal formalities which have any substantive purpose, before the State imposes the stigma of a criminal conviction on any citizen.”

14 Procedural requirements, such as the requirement of authority for signature (considered in Halmi and Janceski and subsequently modified by the addition of s 16(1)(i) to the Criminal Procedure Act), turn on the intention of Parliament with respect to the effect of non-compliance with the procedure it has imposed. However, there has never, to my knowledge, been a statutory modification of the fundamental principle that a Court has no jurisdiction to hear a criminal trial which has not been instituted by a pleading that alleges an offence known to the law. Indeed, any attempt to do so could raise constitutional considerations.

The Submissions on Appeal

15 The appellant contends that the omission of an essential legal element from counts 13 and 14 – namely the failure to refer to knowledge or recklessness with respect to falsity – renders the indictment invalid. This omission, if accepted, is to the effect that the indictment fails to disclose an offence known to the law. The appellant specifically submitted that it is not possible to determine which of the alternative mental elements in s 178BB Crimes Act – knowledge or recklessness – was relied on.

16 The respondent Crown submits that not every defect in an indictment with respect to a legal element of an offence is necessarily fatal. It submits that, in the circumstances of this case, the particular defect upon which the appellant relies should not be regarded as fatal on one of the four alternative bases set out at [2] above.

17 The Crown relied, in part, on the fact, which in my view is established in the present case, that counts 13 and 14 were not treated in any different way from the other s 178BB counts. It was clear, the Crown submitted and I accept, that the Crown relied throughout upon the same mental element in each case, namely recklessness.

18 The Crown’s primary contention is that counts 13 and 14 of the indictment were not, in all the circumstances, invalid, notwithstanding the omission of words in those counts. In this respect the Crown relies, alternatively, on s 16 of the Criminal Procedure Act, set out by McClellan CJ at CL, and on s 17(1) which provides:

“17(1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn.”

19 The Crown’s written submissions referred to par (b) of s 16(1), relating to “want of an averment of any matter unnecessary to be proved or necessarily implied”. It was not, and could not be, suggested that the mental element of the offence under s 178BB of the Crimes Act answered the description “unnecessary to be proved”. As I understand its submission, the Crown relies on the proposition that the mental element was “necessarily implied”. The Crown, alternatively, expressly submits that the omission from the pleading of the mental element was a “formal defect” within s 17(1).

20 The respondent Crown further submits that, even if s 16 and s 17 had no application, they should not be treated as exhaustive of the circumstances in which a defective indictment is nonetheless treated as valid. In this regard reference was made to my own observations on the breadth of s 16 and s 17 in Janceski at [79] and to the further observations of Campbell JA (with whom Mason P and Tobias JA agreed) in respect of s 21 in Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366 at [50] and of Giles JA in Boujaoude v The Queen [2008] NSWCCA 35; (2008) 72 NSWLR 85 esp at [35] and [46].

21 I accept that s 16 and s 17 are not exhaustive. The effect of non-compliance with specific requirements of an indictment will require a process of statutory interpretation of the character undertaken in Janceski. That is a different process to the issue raised in the present case as to whether the document is capable of answering the description of an indictment at all.

22 I note the acceptance by Giles JA in Boujaoude supra at [40] of the existence of an important distinction between the case of an indictment which did not allege an offence known to the law and the imperfect formulation of a known offence. His Honour referred with approval to the observations of Lord Bridge of Harwich in the House of Lords in R v Ayres [1984] 1 AC 447, to which I will refer below in the context of applying the proviso.

23 Although the distinction between an indictment which is a “nullity” and one which is merely “defective” is not, as Lord Bridge suggested, always a helpful distinction, (see also [4] above), his Lordship’s clear statement, which I will quote below, about the need for an indictment to disclose a criminal offence, remains good law. I do not understand that anything said in the cases, upon which the Crown relies, doubts this essential requirement of a criminal pleading.

24 The Crown also submits that the powers to amend a defective indictment, found in ss 17(2), 20 and 21 of the Criminal Procedure Act, are such that an indictment remains valid, notwithstanding any defect, until such time as it is quashed. For the reasons I have already given above, this submission is too broad. It overlooks the role of an indictment in conferring jurisdiction on a court. There are limits to the range of defects capable of being the subject of a power to amend. (See, eg, Broome v Chenoweth supra at 601.)

25 The Crown also relies on the reasoning of Basten JA, with whom Mason P agreed, in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7. McClellan CJ at CL refers to these observations and, whilst acknowledging that they were made in the context of summary proceedings to which s 16(2) of the Criminal Procedure Act applied, a section which has no application in the present case, his Honour states that the observations are “of more general application”.

26 I note particularly Basten JA’s conclusion at [123] of his judgment, set out in its context by McClellan CJ at CL, to the effect that the failure to properly plead the elements of an offence does not ‘necessarily render the information invalid’. The use of the word “necessarily” is significant. Basten JA focused on the role of a court attendance notice with respect to procedural fairness. His Honour was not considering the jurisdictional role of an indictment.

27 In Rockdale Beef supra, Basten JA went on to conclude, at [125], that the “failure to allege an essential legal element of the offence” did not, in the circumstances of that case, “involve a fundamental issue going to the fairness of the prosecution”. His Honour said that the complaint should be characterised as technical. Significantly, his Honour said that parts of the charge could be understood as referable to the omitted element. This approach is, in my opinion, also applicable to the indictment presently under consideration.

28 As Basten JA said at [130], it is not the case:

“ … that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for purposes of s 16(1)(b).”

Validity of the Indictment

29 The form of the indictment is of central significance in the present case. The indictment contained eight counts for an offence, described on the back as “Make false statement to obtain financial advantage (8 counts) under s 178BB Crimes Act 1900 (NSW)”. The first six such counts expressly stated that each statement was “false in a material particular and was made with reckless disregard as to whether it was true or was false or misleading in a material particular”. Counts 13 and 14, respectively, however, plead only that the accused “did make a false statement” or “did concur in making a false statement”.

30 I note that there are in fact two points of distinction between the first six and the last two counts. As indicated, the latter do not allege the mental element of, relevantly, recklessness. Furthermore, the latter simply assert the making of a “false statement” not following, in this respect also, the words of the section, ie, ‘made a statement false in a material particular’, which words do appear in the first six counts. Nothing was submitted to turn on the latter difference.

31 The Crown submits that counts 13 and 14 should be understood to allege an offence under s 178BB Crimes Act in the same terms as the other six counts. In my opinion, the alternative routes to the conclusion for which the respondent Crown contends are substantially the same.

32 Whether an averment can be said to be “necessarily implied” for purposes of s 16(1)(b), whether a “defect” can be said to be “formal” for purposes of s 17(1) and whether or not it can be said that the indictment does in fact disclose a criminal offence, are each to be determined, in the present case, by reference to the same matter. The relevant focus is upon the structure of the indictment, which states that eight counts of making a false statement, contrary to s 178BB Crimes Act, are contained therein. Six such counts set out all of the requisite elements of the offence in full. Two such counts do not.

33 In my opinion, the indictment properly understood, to use the terminology of s 16(1)(b), ‘necessarily implies’ in counts 13 and 14 the words which refer to the mental element of the offence as set out in full in the earlier six counts. On the same basis, properly understood, the “defect” can be said to be “formal” and /or the indictment does allege an offence known to the law.

34 The indictment in the present case is similar to the pleading considered by the English Court of Criminal Appeal in R v McVitie (1960) 2 QB 483. In that case the “Statement of Offence” charged the accused with possessing explosives contrary to a specific provision of a statute. However, the particulars did not expressly refer to the statutory requirement of “knowingly” possess. The Court concluded that this omission did not affect the validity of the indictment. The Court said at 495:

“In our opinion this did not make the indictment a bad indictment, but simply a defective or imperfect one. A bad indictment would be one disclosing no offence known to the law, for example, where it was laid under a statute which had been repealed and not re-enacted. In the present case the indictment described the offence with complete accuracy in the ‘Statement of Offence.’ Only the particulars, which merely elaborate the ‘Statement of Offence,’ were incomplete. The question of applying the proviso is to be considered, therefore, not upon the basis that the indictment disclosed no known offence but that it described a known offence with incomplete particulars.”

35 McVitie is authority for the proposition that reference to the statutory provision creating an offence may implicitly plead the element contained in the section. (See supra at 496.) The relevant English Act, and subsequently rules (see R v Molyneux (1981) 72 Cr. App. R 111), expressly required an indictment to describe the offence and to refer to the section of the statute. However, the same approach is applicable to the interpretation of the word “indictment” in statutory provisions conferring criminal jurisdiction on a court.

36 Whether or not the reference to the statute would have been sufficient, of itself, need not be decided. It plainly will not be sufficient if the section gives rise to alternatives from which the Crown must choose. (See Traveland v Doherty supra at 188.) In the present case the choice between the relevant alternatives with respect to the mental element – knowledge and recklessness – is implied from the pleading of the first six counts. It is the combined effect of the back sheet, referring to eight counts under s 178BB Crimes Act, and the detailed pleading of six of the counts, which is determinative in the present case. It is unnecessary to go further.

The Effect of the Verdict

37 In the alternative, the Crown relies on the doctrine that a defect in the indictment is cured by the verdict. This submission would not, in my opinion, turn on any different considerations to those already discussed.

38 The Crown relied on a number of 19^th century English cases including Heymann v The Queen (1873) LR 8 QB 102; The Queen v Goldsmith (1873) LR 2 CC 74; R v Aspinall (1876) LR 2 QBD 48; R v Stroulger (1886) 17 LR QBD 327 and Taylor v The Queen [1895] 1 QB 25.

39 As James J, with whom Harrison J agreed, noted in R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407 at [26], this line of authority may not have been referred to in recent times because occasion for its application has not arisen by reason of the statutory power to amend an indictment and the provisions that defects of a certain character will not invalidate an indictment. His Honour could have added the inclusion of an express power of appeal to a Court of Criminal Appeal, subject to the well-known proviso, which was also adopted after this line of cases. James J concluded (at [26]) that the statutory provisions to which he referred did not impliedly overrule the case law with respect to an indictment being cured by verdict.

40 It is, however, significant to note a distinction between the kinds of defects that are capable of being cured by verdict and those which are not. In Aspinall supra, Brett JA emphasised that the formulation in Heymann supra at 105 applied the doctrine to a situation where an averment in a pleading was “imperfectly stated”. His Lordship went on to say at 58:

“[T]he averment spoken of is ‘an averment imperfectly stated’ ie an averment which is stated but which is imperfectly stated. The rule is not applicable to the case of the total omission of an essential averment. If there be such a total omission, the verdict is no cure.”

41 This passage was referred to with approval by Gleeson CJ in R v Morris (NSWCCA 25 November 1996, unreported) at p 11.

42 In R v Gervaise (NSWCCA 13 November 1997, unreported), Smart J with whom Grove and Studdert JJ agreed, referred to Heymann in a context very similar to the present. A charge under s 178BB of the Crimes Act did not allege that the accused knew that the statement was false and misleading in a material particular. No reference was made to the distinction between a charge “imperfectly stated” and a “total omission”, emphasised by this Court in Morris, to which the Court did not refer. It does not appear that there was any challenge to the validity of the indictment in that case. (See the grounds of appeal set out at pp 12-13.) The reference in Gervaise to this line of authority should be regarded as made per incuriam.

43 The same distinction was also drawn in a passage from the 14^th edition of Archbold’s Pleading & Evidence in Criminal Cases quoted, albeit not with reference to this particular matter, by Hunt CJ at CL in Mai supra at 378.

44 The authors of that learned text stated, with respect to statutory offences:

and with the intent mentioned in the statute

The defect will not be aided by verdict

Archbold’s Pleading and Evidence in Criminal Cases

^th

45 This distinction remains, in my opinion, a good one. A verdict does not cure every defect in an indictment. If I had come to the conclusion that the mental element of the offence had not been pleaded, then I would not have concluded that the defect was cured by verdict.

Waiver

46 As to the reliance by the Crown on an alleged waiver, arising from the failure to invoke the statutory power to amend, it does appear that all parties proceeded at the trial on the basis that counts 13 and 14 pleaded the same reckless disregard element as was pleaded in the indictment for each of the other counts under s 178BB Crimes Act. There was no denial of procedural fairness, nor any other prejudice to the appellant.

47 Nevertheless, as Bell J said in Halmi supra at [52], the absence of prejudice “cannot cure a defect that goes to the root of the trial”. Where the jurisdiction of the Court is conditional on the existence of a valid indictment, the Crown cannot, in my opinion, rely on waiver. (See Janceski supra at [55], [209].)

48 As Howie J said in Janceski supra at [277]:

“… I do not understand how the invalidity of an indictment can be waived. Invalidity goes to the very operation of the indictment to give the court jurisdiction.”

49 Accordingly, the issue of waiver in this case turns on the same considerations as the issue of validity. If I had come to the conclusion that the mental element had not been pleaded, the alleged waiver would not have availed the Crown.

The Proviso

50 The final basis upon which the Crown seeks to uphold the conviction in the present case is the application of the proviso. The reasoning of Lord Bridge of Harwich in R v Ayres, clearly states that the distinction I have already made is applicable in the context of applying the proviso.

51 His Lordship said in Ayres at 460-461:

“If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant.”

52 This reasoning is a specific manifestation of the general principle that the proviso cannot be deployed to correct fundamental errors in criminal proceedings. (See, eg, Quartermaine v The Queen (1980) 143 CLR 595 esp at 601-612; Wilde v The Queen (1987) 164 CLR 365 esp at 372-374; Glennon v The Queen (1993) 179 CLR 1 at 8, 12-13.) Although the formulation of whether or not the defect goes to the “root of the trial” has often been deployed, recent case law in the High Court has emphasised that it is important not to be distracted from the statutory language of whether there has been a “substantial miscarriage of justice”. (See Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521, [39]-[43]; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [54]-[55]; Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293, [32]-[34] and [60]. See also the helpful summary of the case law in Mackrell v Western Australia [2008] WASCA 228; (2008) 190 A Crim R 43 esp at [135]-[163] per Murray AJA.)

53 In my opinion, when a court reaches the conclusion that the indictment does not allege an offence known to the law, I cannot conceive of circumstances in which a court would find that there was no substantial miscarriage of justice. This appears to me to be a “radical” error (see AK supra at [54] per Gummow and Hayne JJ), or a “flaw in a fundamental respect” (Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 at [88] per French CJ).

54 The application of the proviso to alleged defects in an indictment has arisen on a number of occasions, where the approach of the House of Lords in R v Ayres supra has been applied. (See Kahatapitiye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542; Chanthaboury v The Queen [2007] NSWCCA 290; (2007) 176 A Crim R 438.)

55 I have noted above that the indictment under consideration is equivalent to that in McVitie, which was a proviso case and which was approved in R v Ayres. The Australian case with the closest resemblance to the present is Kahatapitiye which involved an indictment containing 11 counts of alleged sexual assault. One count of alleged sexual penetration stated that that act had occurred without the consent of the complainant. Three other charges, also alleging penetration, failed to include the words “without her consent”. As here, each count referred to the section of the Criminal Code (WA), which clearly stated that it applied only to sexual penetration without consent.

56 Templeman J, with whom Wheeler and Miller JJ agreed, referred to the observations of Lord Bridge in R v Ayres. His Honour noted that the directions to the jury made it clear that the absence of consent was an essential part of each charge and that, at the trial, no issue of consent was raised. The issue at trial was that no sexual conduct occurred at all. In this context his Honour concluded that, notwithstanding the omission, the case was of the second kind identified by Lord Bridge, ie, that the charge “can … be seen fairly to relate to and be intended to charge a known and subsisting criminal offence” (R v Ayres supra at 461). His Honour accordingly applied the proviso.

57 In Kahatapitiye, the Full Court went beyond the terms of the indictment and reviewed the way in which the trial was conducted. I note that the Full Court did not address the role of an indictment as a basis for jurisdiction. The same is true of the approach of this Court in Chanthaboury. (See at [27] and c/f Janceski at [53] and [277].)

58 It is unnecessary to adopt this approach in this case. For present purposes it is sufficient to focus on the indictment as a whole. Again I do not think any different issue arises with respect to the proviso than that which I have considered above with respect to the Crown’s submission that the indictment was not invalid.

59 The indictment, properly understood, did charge an offence known to the law. The proviso was, in principle, available on the basis that there was no substantial miscarriage of justice. It is unnecessary to determine whether the proviso is applicable with respect to proceedings that can be described as a “nullity” or whether the Court, in such a case, has power to order a new trial, both of which divided the Court in Swansson v The Queen.

60 In any event, for the reasons given by McClellan CJ at CL it is appropriate for this Court to apply the proviso on the facts of the case.

Conclusion

61 I agree with the orders proposed by McClellan CJ at CL.

62 McCLELLAN CJ at CL: The appellant was tried on an indictment containing 14 counts relating to his role in various financial transactions. He was acquitted of counts 1 to 6 inclusive but convicted of counts 7 to 14.

63 Counts 1 & 2 alleged a breach of s 911B(1) of the Corporations Act 2001 (Cth) in that the appellant provided advice about financial products which he was not authorised to do under s 911B(1)(a)(e) of the Corporations Act (Cth). The Crown alleged that the appellant gave such advice on behalf of two companies, Progressive Investments Securities Pty Ltd and Capital Investment Group Pty Ltd, and that neither he nor either of the companies held an Australian Financial Services Licence (AFSL) authorising such advice to be given. The Crown also alleged that the appellant was not an authorised representative of any other company.

64 Counts 3-6 inclusive alleged a breach of s 1041 of the Corporations Act (Cth) in that the appellant induced a number of people to invest in financial products by making forecasts about the likely costs of the investments, being reckless about whether those forecasts were misleading, false or deceptive.

65 Counts 7-12 alleged a breach of s 178BB of the Crimes Act 1900 in that the appellant made false statements to certain investors with reckless disregard as to whether the statements were true, false or misleading, with intent to obtain a financial advantage; being commission on the transactions.

66 Counts 13 & 14 alleged breaches of s 178BB of the Crimes Act in that the appellant made false statements to two companies, (Man Investments Australia Limited and Capital Guaranteed Investments Limited), that he held valid licences and Corporations Act authorisation to sell each of their investment products, with the intent to obtain the opportunity to earn commission (financial advantage) for himself or either of his two companies (Progressive Investments Securities Pty Ltd or Capital Investments Group Australia Limited). These charges were related to counts 1 and 2, the shared ingredient being that neither the appellant nor the companies Progressive Investments Securities Pty Ltd and Capital Investment group Pty Ltd held an AFSL during the relevant times on the indictment.

67 The appellant has appealed his conviction with respect to counts 13 and 14. He submitted that the indictment was defective in that it failed to plead the necessary mental element of the offences and the trial judge’s directions with respect to the mental element were erroneous. He also seeks leave to appeal his sentence.

The Crown case – counts 1 - 12

68 The Crown case at trial was set out in the appellant’s submissions which I have utilised in the following summary.

69 During 2004, the appellant provided financial services to various clients. This included giving advice about two financial investment products, named “ORB Yields” and “OMP-IP 15 Seven”. He also assisted clients to complete the application forms for these investments, and obtain finance to enable the investors to buy the products.

70 At that time the appellant operated a business that provided financial advice and financial services. There were a number of companies involved with the business including Progressive Investments Securities Pty Limited, Capital Investments Group Australia Pty Limited. Progressive Investments Mortgage Pty Limited was also associated with these companies, but was not directly involved with the provision of the services and advice. The Crown maintained that the appellant effectively owned and controlled these companies.

71 In late 2003 the appellant appointed Nellie Anaris as the director of Progressive Investment Securities Pty Ltd. He also appointed his daughter Alicia Doja and a male named Vickram Bir as the directors of Capital Investments Group Australia Pty Ltd. Although these persons were appointed, the Crown maintained that the appellant was the person in effective control of these companies.

72 ORB Yields was a management fund controlled by Capital Guaranteed Investments Pty ltd. It invested in global equities and paid a quarterly dividend. It had a target rate of return of 12%, although this was not guaranteed. However, Citigroup provided a capital guarantee for the product which meant that provided monies were invested for the full term of 6 years, the initial capital was guaranteed.

73 OMP-IP Seven was a managed fund which invested in domestic markets. It was sponsored by Man Investments Australia. It accepted investments for a term of 7 years but paid no regular dividends. It had a target of 15% growth per annum over the life of the investment. The National Australia Bank provided the capital guarantee in relation to this product.

74 Macquarie Bank provided loans for 100% of the investments. In some cases it also provided loans for the first year’s loan interest. The investor was required to pay interest to Macquarie Bank during the term of the loan.

75 The companies that owned ORB Yields and OM-IP (Capital Guaranteed Investment and Man Investments Australia respectively), paid a commission to a licensed financial advisor who sold their products. Macquarie Bank also paid a commission to the financial advisor who arranged for a client to obtain a loan.

76 Section 911B of the Corporations Act 2001 (counts 1 and 2) requires financial advisors to hold an AFSL or be an authorised representative of a company that holds a licence. The Crown maintained that neither the appellant nor Progressive Investments Securities Pty Ltd nor Capital Investments Group Australia Pty Ltd ever held a licence. It also alleged that the appellant was not an authorised representative of a company that held an appropriate licence during the relevant periods in 2004. The appellant had held authorities from other companies at other times.

77 In 2002 New World Financial Services had a dealer’s licence and gave the appellant authority to act on its behalf. A dealer’s licence was the licence required by s 781 of the Corporations Act 2001 and was the predecessor of an AFSL.

78 In March 2002, when the AFSL was created, a two year period of grace was given to financial advisors to change over from a dealer’s licence to an ASFL. The Crown maintained that New World revoked the appellant’s licence in July 2003 and that in 2004, when New World obtained an AFSL, they did not appoint the appellant as one of their authorised representatives.

79 In about August 2004 a company called Aurora Financial Services gave a limited authority to the appellant. It only related to insurance products, Aurora Financial Services did not give advice about financial products. The Crown alleged that neither New World nor Aurora had given the appellant authority to provide financial advice in the relevant periods of 2004 during which he allegedly gave advice.

Counts 13 and 14

80 The conviction appeal is concerned with counts 13 and 14 and ultimately the application of the proviso. I have considered the facts relating to these counts in detail. The first issue was the appellant’s knowledge of the statutory requirements.

81 Mr Rabaud, a director of Aurora Financial Services Pty Limited, gave evidence that it was widely known in the industry that the transitional period from the former licensing scheme to an AFSL ended in March 2004. From that time the former licence was of no utility. There was evidence that the appellant had been involved in the finance and financial advising industry since 1995. The Crown submitted that a person in the appellant’s position must have been well aware of the changes to the scheme. Mr Rabaud said that Aurora obtained an AFSL for insurance and superannuation products. He said that he made the appellant an authorised representative of the company in August 2004 but made it clear to him that he was only authorised to provide advice on risk and superannuation. He was not otherwise authorised to give financial advice.

82 Mr Lyton was the sole director of New World Financial Services. He gave evidence that the appellant was an authorised financial representative for the company up until July 2003. He said that he spoke with the appellant on the phone and told him that before he could be appointed as an authorised representative under the new scheme he must comply with the education requirements, known as PS 146. Mr Lyton followed up this conversation by a letter which said that the appellant must become compliant with PS 146 by completing further courses.

83 Mr Bir, an employee of the appellant, gave evidence that he and Mr Lyton exchanged emails regarding the education requirements of the new statutory regime. In those emails Mr Lyton outlined the courses the appellant had to take so as to become compliant with the legislation. Mr Bir said that he passed this information on to the appellant.

84 Mr Lyton also gave evidence that notwithstanding the telephone call to the appellant, the letter and his emails with Mr Bir he did not receive any evidence of further courses being completed by the appellant. Mr Lyton said that when he had not heard from the appellant he proceeded to send him a letter which said: “After many assurances by yourself that you’ve completed the necessary courses to be compliant with the ASIC policy statement 146 I’ve still not received confirming documentation. … Please contact me within the next five days to discuss this matter as without evidence to contradict the above I will cancel your proper authority next week.” A final letter sent by Mr Lyton to the appellant advised the appellant that his proper authority had been revoked. The Australian Security and Investment Commission’s records show that Mr Lyton revoked the licence in July 2003.

85 Mr Lyton said that after he revoked the appellant’s licence he ceased sending him invoices for the service fee which he had previously sent monthly. He said that the appellant did not inquire as to why the invoices had stopped. The Crown submitted to the jury that the reason the appellant did not make any inquiries was because he knew that his authority had been revoked.

86 The appellant’s counsel challenged Mr Lyton. He put to him that the appellant’s clients were important to Mr Lyton’s business. He was asked

87 Mr Lyton gave evidence that rather than lose the appellant’s clients he travelled down to Sydney and spoke with each of them to give them the necessary advice.

88 There was evidence that Mr Lyton sent a copy of the New World AFSL to the appellant in July 2004. It was put to Mr Lynton that he was in effect telling the appellant that he was authorised to act under the New World AFSL. Although Mr Lyton confirmed that he sent the appellant a copy of an AFSL, he said that he made it very clear that the appellant could not give advice to clients.

89 It is unclear why Mr Lyton sent the New World AFSL. However, the appellant’s name was not on the document and it would have been apparent that he was not an authorised representative of New World.

90 The appellant did not give evidence at his trial.

With respect to count 13

91 Mr Gerstle was the managing director of Man Investments, the wholesaler of a financial product known as OM-IP 15seven. He said that the company paid commission to financial advisers who sold the product. However before Man Investments would pay commission the company required financial advisors to provide a copy of their authorization or licence. The evidence indicated that the appellant’s company had received in excess of $300,000 from Man Investments by way of commission.

92 A statement by Ms Kwok, a marketing and sales assistant of Man Investments, was read to the court without objection. Ms Kwok said:

still valid

93 Following her conversation with the appellant Ms Kwok made an entry in the Man Investments database. This entry recorded that the appellant was a dealer licensed with New World Financial Services. A copy of New World’s dealer’s licence, a licence under the old statutory regime was sent to Ms Kwok. At the time the licence was sent it was no longer current.

94 Mr Bir gave evidence that when the appellant obtained a copy of New World’s Australian Financial Services Licence (AFSL) of February 2004 from Mr Lyton he sent it to Ms Kwok. The Crown case was that the representation made by the appellant was either knowingly false or reckless as to the truth.

95 To my mind the evidence in relation to this count was overwhelming. There can be no doubt that the appellant represented to Man Investments in May 2004 that he held a valid licence allowing him to give advice about financial products. This representation was false and the appellant either knew it to be false or was reckless as to the truth. The representation was made in order to obtain financial advantage for the appellant.

With respect to count 14

96 Ms Ibbotson from Capital Guaranteed Investments, the wholesaler of a financial products known as ORB Yields, said that she saw the appellant in about July 2004 to discuss with him the possibility of his advising clients about their products. She gave evidence that at this meeting she gave the appellant a pro-forma version of Capital Guaranteed Investments’ agency agreement. This agency agreement contained a clause indicating that the financial adviser had to be licensed under the Corporations Act. Ms Ibbotson said that she told the appellant that Capital Guaranteed Investments would need a copy of a current dealer’s licence before any commission was paid.

97 Mr Bir gave evidence that he filled out the agency agreement. However, he said that for parts of the agreement he sought instructions from the appellant. Mr Bir said that he asked the appellant what dealer’s licence number should be used. He said that the appellant instructed him to use New World’s dealer’s licence number and that the authorised representative should be named as ‘Tunde Doja’. The document was witnessed by the appellant and forwarded to Capital Guaranteed Investments. Capital Guaranteed Investments paid commissions to the appellant of nearly $700,000.

98 I am in no doubt that the appellant concurred in making a statement that represented to Capital Investment Group that the appellant was an authorised representative to sell their financial products and he did so with the intention of obtaining for himself or for his companies financial advantage.

99 There are three grounds of appeal against the relevant convictions. It is convenient to consider grounds 1 and 2 together:

Ground 1: Counts 13 and 14 in the indictment were defective and the verdicts entered in relation to those counts were not in accordance with the law and thus invalid.

Ground 2: The failure of counts 13 and 14 to aver the mental element relied on by the Crown to prove the charges, gave rise to a miscarriage of justice warranting intervention by the Court of Criminal Appeal.

100 Section 178BB of the Crimes Act reads as follows:

knows

made with reckless disregard

…”

101 The indictment included a cover sheet which indicated that there were two counts under s 911(b)(1) of the Corporations Act (Cth), four counts under s 1041F Corporations Act (Cth) and eight counts under s 178BB Crimes Act. Counts 13 and 14 were two of the counts under s 178BB. Although counts 7 to 12 were correctly pleaded counts 13 and 14 omitted any reference to the mental element of the offence.

102 Count 13 was pleaded as follows:

“… with intent to obtain for himself or another person, namely Progressive Investments Securities Pty Limited or Capital Investments Group (Aust) Pty Limited, a financial advantage, namely the opportunity to earn commission by selling financial products offered by [the wholesaler], did make a false statement to [the wholesaler], namely that he, or companies associated with him, held a valid and operative licence or authorisation under Corporations Act that permitted him to sell those financial products.”

103 Count 14 followed the form of count 13 but pleaded, “did concur in making a false statement” rather than “make a false statement.”

104 Accordingly, the pleading for counts 13 and 14 did not include any reference to the “knowledge” of the appellant or his alleged “reckless disregard” of the truth of the statement made. The omissions were plainly an oversight which was not appreciated by the judge or counsel at the trial. The other six counts under s 178BB were pleaded as “reckless disregard” by the appellant as to the truth or falsity of the relevant statements. Although not pleaded in this form counts 13 and 14 were addressed by counsel and the trial judge in similar terms to counts 7 –12. No one at the trial was under any misapprehension as to the charges the appellant actually faced or the case presented by the prosecution in support of those charges. However, on appeal it was submitted that the defect rendered the indictment void with respect to counts 13 and 14 and the trial on those counts a nullity and for that reason the convictions on counts 13 and 14 should be quashed.

105 An indictment is defective at common law and liable to be quashed if objection is taken before trial, if it fails to identify an essential factual ingredient of an offence. Contemporary Australian statements of the relevant principles can be found in John L Pty Ltd v The Attorney General for the State of NSW (1987) 163 CLR 508 at 519-520 and Lodhi v R [2006] NSWCCA 101; (2006) 65 NSWLR 573.

106 In R v Mai (1992) 26 NSWLR 371; Hunt CJ at CL said (at 377):

“… the indictment … must identify the nature of the offence and the manner in which it had been committed. Like an information, the indictment at common law must disclose an offence punishable by law, and it may be quashed if it does not, for it is the indictment which founds the jurisdiction of the court to which it is presented.

…

R v Saffron

Lodhi v The Queen

107 However, the common law has long accepted that in some circumstances the jury’s verdict will cure a defect in the indictment. Before the trial process was addressed in any detail by the Parliament the courts recognised that, although there may be a deficiency in an indictment and for that reason an injustice may have occurred, if the elements of the offence were correctly identified during the trial and after proper instruction the jury returned a verdict of guilty, that verdict would not be quashed on appeal.

108 In Heymann v The Queen (1873) LR 8 QB 102 the indictment alleged a conspiracy to breach the Debtors Act. The offence was complete if the defendant had agreed with another to remove his goods in contemplation that he may be declared a bankrupt. The indictment, although pleading a breach of the Debtors Act, did not plead that the asserted agreement was made in contemplation of a declaration of bankruptcy.

109 The court held that the guilty verdict cured the defect. Although finding that a demurrer to the indictment may have been upheld Blackburn J speaking for the court said at p 105:

“Where an averment which is necessary for the support of the pleading is imperfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found on this issue without proof of his averment, then, after verdict, the defective averment, which might have been bad on demurrer, is cured by the verdict.”

110 The Queen v Rebecca Goldsmith (1873) Law Rep 2 Cr 74 was a case in which it was alleged that the defendant obtained goods by false pretences. The indictment did not set out the alleged false pretence. The pleading followed the form of the statutory offence and for that reason it was held that the conviction was sound. However, the court accepted that the common law as expressed in Heymann would also cover the situation.

111 Bramwell B said:

Stennel v Hogg

Rex v Mason

Heymann v The Queen

We must take it that the objection raised at the trial was made with a continuando, so as to be available as a motion after verdict in arrest of judgment; otherwise we should have no jurisdiction. My ground of decision is that the defect, if any there be, is cured by verdict. If the matter were one in our discretion I should not arrest the judgment.” (citations omitted)

112 In The Queen v Stroulger (1886) LR 17 QBD 327 the defendant was charged with corrupt practices in relation to a general election. It was proved at the trial that he had promised money to two voters to induce them to vote. The proven facts constituted a breach of the Corrupt and Ilegal Practice Prevention Act 1883. However, beyond alleging that the defendant was guilty of corrupt practice no particular offence was pleaded.

113 The majority of the court (Lord Coleridge CJ, Denman, Day and Mathew JJ) agreed that the pleading was defective. If objection had been taken before trial it would have been quashed. However, Lord Coleridge CJ, Field and Mathew JJ held that the defect was cured by the verdict. The Chief Justice said:

Stennel v Hogg

114 The Queen v Aspinall (1876) 2 QBD 48 also involved an alleged conspiracy. The conspiracy proved at trial was to defraud persons buying shares in a company. However, the indictment contained no averment of an intention to injure anyone beyond an intent to deceive the Stock Exchange.

115 Brett JA (with whom Mellish LJ concurred) applied Heymann and held that the verdict cured the defective averment in the indictment. However, he emphasised that it was only an averment that was imperfectly stated which would be cured:

“The rule is not applicable to the case of the total omission of an essential averment. If there be such a total omission, the verdict is no cure. And when it is said that the verdict could not have been found without proof of the averment, the meaning is, the verdict could not have been found without finding this imperfect averment to have been provided in a sense adverse to the accused.

Another rule is, that in considering an indictment on a writ of error, and, therefore, after verdict, it is not necessary for, and it is not open to, the Court to inquire what facts were proved at the trial. The question is, whether assuming the facts which are accurately alleged in the indictment to have been proved as alleged, and the facts which are imperfectly alleged to have been proved in a sense adverse to the accused, the charge would be supported. If it could, the indictment, on error after verdict, is sufficient. But if, assuming both the above-mentioned allegations of facts, the perfect and imperfect allegations, to be proved respectively as before stated, the charge would not be supported for want of the existence of some other allegation, affirmative or negative, which has been totally omitted, then the indictment is bad notwithstanding the verdict. The verdict is only to be taken as conclusive evidence that the facts alleged in the indictment accurately and inaccurately were proved in a sense adverse to the accused. If those facts so proved would not support the charge, the indictment is bad on a writ of error.”

116 Heymann was considered and applied in this Court in R v Morris (NSWCCA Gleeson CJ, McInerney and Ireland JJ, 25 November 1996, unreported) where Gleeson CJ said (at p 12) “the test is whether or not the verdict which the jury reached must have included a finding on the element which the Crown failed to allege”.

117 Heymann was also applied without discussion by this Court in R v Gervaise; R v Preece (NSWCCA, Smart, Grove and Studdert JJ, 13 November 1997, unreported).

118 The English cases were again considered by this Court in R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407 where the jury returned a verdict of guilty in respect of a number of counts on an indictment alleging that the appellant had sexual intercourse with a person above the age of 10 years and under the age of 14 years. For at least part of the period in which the offences were allegedly committed the offence was defined as having intercourse with a person above the age of 10 years and under the age of 16 years. The Crown alleged that at any relevant time the complainant was aged less than 14 years.

119 The Crown relied on the English cases in support of a submission that any defect pleaded in the counts had been cured by the verdicts of guilty, because the jury must have been satisfied on each of the counts that all the elements of the offence charged had been proved. This Court held that because the counts pleaded the actual age of the complainant, which was always less than 14 years, the pleading was not defective. However, the court also accepted that the jury’s verdict could cure any defect in the indictment because the jury must have been satisfied that all the elements of the offence had been proved (at [25]).

120 The common law adopted a strict attitude to the pleading of both civil and criminal cases. The harshness of the common law was exemplified by the lack of any capacity to amend an indictment (see Sir Matthew Hale, The History of Pleas of the Crown (1736) vol 2 at 193; William Eden, Principles of Penal Law, 2^nd ed (1771) at 181-182; Joseph Chitty, A Practical Treatise on the Criminal Law (1816) vol 1 at 169-170).

121 However, the common law approach has been significantly ameliorated by statute. Statutory provisions allowing the amendment of defective indictments in New South Wales were first introduced by the Criminal Law Amendment Act 1883. It followed legislation enacted in England in 1853, referred to as the Criminal Justice Amendment Act (1853). In New South Wales similar provisions are now found in Part 2 of the Criminal Procedure Act 1986 (“the Act”). Section 16 of the Act confines the deficiencies in a pleading which may void an indictment. Subsection (1) is concerned with all criminal proceedings, subsection (2) is limited to those dealt with summarily. The section is in the following terms:

“(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:

(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

Note.

122 Section 16(2) is the statutory re-enactment of s 65(1) of the Justices Act 1902 (NSW) which was in turn taken from the Juries Act in England which was designed to limit the objections which could be taken to the initiating process in a summary criminal trial. It is not of present relevance.

123 The statute confines the opportunity for a formal objection to be taken to an indictment where there will be trial by jury (s 17). It also provides that an indictment may be amended (s 20). Provided it can be amended without injustice “the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case” (s 21). The order for an amendment may be made at any stage during the trial (s 21(4)).

124 There are some circumstances in which a defect in an indictment is such that it cannot be cured by an amendment or the jury’s verdict. These issues were discussed by this Court in R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 and subsequently in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10. In both cases the appellant had been convicted on an “indictment” which had not been signed by a person holding the relevant authority as required by s 126 of the Criminal Procedure Act. This Court on each occasion held that the “indictment” was invalid. The requirement in s 126 that an indictment be signed by a person holding the appropriate authority is an essential element of the validity of every indictment in that it invests the relevant court with its jurisdiction. The requirements of s 126 are strict: Halmi at [2]; Janceski at [98].

125 Two members of the court in Janceski considered whether the doctrine of waiver was available to save the conviction. Janceski had pleaded not guilty and without objection was tried on the “indictment”. Wood CJ at CL and Howie J held that waiver was not available “where the court’s jurisdiction was conditional on the existence of a valid indictment” (Wood CJ at CL [209]). Invalidity of an indictment cannot be waived (Howie J at [277]).

126 In Rockdale Beef Pty Ltd v The Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 the Court of Appeal considered the situation where charges were laid under s 10(2) of the Occupational Health and Safety Act 2000 but the charge failed to allege all of the essential matters relevant to the offence. The charge was said to be defective in that it failed to assert a critical element of the offence, namely that the plant was controlled by the defendant “in the course of a trade, business or other undertaking” (s 10(3)(d)). The critical issue was whether this defect in the pleading invalidated the proceeding.

127 Basten JA with whom Mason P agreed concluded that the defect did not deny the court jurisdiction.

128 Spigelman CJ was of a different view. His Honour held that because the charge omitted an essential legal element of the offence the proceedings were not proceedings for “an offence against the relevant Act and the Industrial Court accordingly had no jurisdiction to hear and determine the charge: Rockdale [34]. The Chief Justice relied on this Court’s decision in Lodhi v R (2006) NSWCCA 121; (2006) 199 FLR 303. Lodhi was concerned with a challenge to an indictment brought before the jury was empanelled. Although Lodhi had entered a plea of not guilty the trial had not proceeded and no verdict had been entered.

was of course a summary proceeding and s 16(2) of the Criminal Procedure Act was engaged. However, the majority reasoning is of more general application. Of particular significance for present purposes is the conclusion Basten JA expressed at [123] to the effect that a failure to plead the elements of an offence does not always make an information invalid and the proceedings may not be a nullity. His Honour said (from [122]):

Criminal Procedure Act

Taylor

Ex parte Thomas; Re Otzen

Justices Act

Ex parte Lovell

Justices Act

As to the first of these points, however, the section relied upon does not warrant a conviction for an offence that does not exist and the magistrate stated the effect of his order in the precise terms of the information: Ex parte Lovell … . If it had really been intended to rely upon proof of a sale, there should have been an amendment and then if desired by the defendant an adjournment to enable him to raise his defence completely to that charge.”

Street J agreed with the Chief Justice.

Boral Gas

130 In my opinion the indictment in the present case was not invalid or the proceedings a nullity. The indictment could have been amended during the course of the trial. The appellant did not contend otherwise. It follows that if the verdicts on counts 13 and 14 could not have been found without the jury being satisfied to the relevant standard that the Crown had proved “knowledge” or “reckless disregard” the verdicts will cure the defect in the indictments.

The proviso

131 Apart from the common law the Criminal Appeal Act now controls appeals with respect to a conviction for a criminal offence. The Crown submitted that the proviso in s 6(1) was engaged and should be applied by this Court.

132 The various provisions of the Criminal Procedure Act which confine the objections which can be made to and which allow amendment of the pleadings in a criminal trial reflect the policy of the common law with respect to a guilty verdict in a trial with a defective pleading. The law rejects reliance on excessive or unnecessary technicalities and is primarily concerned to ensure that justice is done. Section 6(1) of the Criminal Appeal Act reflects that policy.

133 An appeal court must consider the “proviso” when on any ground whatsoever there has been a miscarriage of justice. It allows the court to dismiss an appeal “if it considers that no substantial miscarriage of justice has actually occurred.” There are decisions both in England and Australia which confirm that the “proviso” may be engaged when an indictment has been defectively pleaded.

English cases in relation to the proviso

134 The leading case in England is Ayres v R (1984) AC 447 where the House of Lords considered an indictment which charged that the defendant was guilty of common law conspiracy. As it happened the relevant facts constituted the statutory offence of conspiracy to obtain property by deception which, by operation of s 5(1) of the Criminal Law Act 1977 UK, could not be charged as a common law offence. The defendant was convicted. The House of Lords applying the proviso (as it then appeared in s 2(1) Criminal Appeal Act 1968 (UK)), upheld the conviction.

135 The proviso was in the following terms:

(a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or

(c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal;

136 Lord Bridge of Harwich delivered the leading speech. His Lordship concluded that the indictment was defective because it did not charge the accused accurately with the only offence (which was the statutory offence) for which he could be properly convicted (at 460C). It followed that there was a material irregularity in the course of the trial. The offence with which the defendant was actually charged was the common law offence and there was no other offence on the indictment of which the defendant could have been found guilty.

137 However, Lord Bridge adopting the language of the common law following a verdict of conviction said this (from 460H):

“In a number of cases where an irregularity in the form of the indictment has been discussed in relation to the application of the proviso a distinction, treated as of crucial importance, has been drawn between an indictment which is ‘a nullity’ and one which is merely ‘defective.’ For my part, I doubt if this classification provides much assistance in answering the question which the proviso poses. If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant.

138 Lord Bridge continued with a discussion of authorities of significance in the present context:

“Your Lordships were referred to a number of authorities on this aspect of the case but I do not think it would serve any useful purpose to embark on a comprehensive view of them and I propose to refer to only two which seem of particular importance in the present context. The foundation of the modern law is the decision of the Court of Criminal Appeal under the Criminal Appeal Act 1907 by a five judge court (Lord Parker CJ, Stable, Donovan, Ashworth and Salmon JJ) in Reg v McVitie [1960] 2 QB 483. The defendant had been indicted for ‘possessing explosives contrary to section 4(1) of the Explosive Substances Act 1883.’ At the arraignment of the accused this statement of offence was not read out but only the particulars. The particulars of the offence omitted the word ‘knowingly’ in relation to the alleged possession, knowledge being an essential ingredient of the offence. The court decisively rejected the contention, which appeared to derive some support from earlier decisions, that the accused had never been arraigned for any offence known to the law so as to preclude the court from upholding the appellant’s conviction under the proviso. Giving the judgment of the court, Donovan J expressed the essential principle in the following passage, at p 497:

‘In the present case it is clear that no embarrassment or prejudice was caused to the appellant by the omission of the word ‘knowingly’ from the particulars, or from the arraignment. He had been properly charged in the first place, and properly committed for trial, and the Attorney-General’s fiat was in proper form. If the word ‘knowingly’ had been in the particulars and the chairman had said to the jury: ‘You must be satisfied that McVitie knew that there were explosive substances in the paper bag in the car,’ he would inevitably have gone on to say – as, indeed, he did – ‘but McVitie admits he had this knowledge.’ This essential ingredient of the offence was therefore established, despite the omission of the word in question. The present case is, therefore, a clear case where no substantial miscarriage of justice has occurred.’

A decision directly in point on the issue raised by the instant case is Reg v Molyneux (1980) 72 Cr App R 111, decided by Shaw LJ, Park and Anthony Lincoln JJ. There, as here, the appellant had been convicted of conspiracy to defraud when the true offence proved against him had been conspiracy to rob. On the substantive point, the court there followed Reg v Duncalf [1979] 1 WLR 918. Having decided that the indictment though defective was not a nullity (perfectly correctly), the court went on to examine the circumstances and to decide that the misnomer in the statement of offence in the light of the particulars and the summing up led to the conclusion that there had been no actual miscarriage of justice.”

139 Lord Bridge concluded that “the proviso” should be applied. He said:

“My Lords, in the instant case I reach the same conclusion for essentially similar reasons though without pausing to consider the nullity point. The particulars of offence in this indictment left no one in doubt that the substance of the crime alleged was a conspiracy to obtain money by deception. The judge in summing up gave all appropriate directions in relation to that offence. The co-accused Westbrook having pleaded guilty, the evidence amply proved that offence against the present appellant. The jury in returning a verdict of guilty must have been sure of his guilt of that offence. The judge passed a modest sentence comfortably below the maximum for that offence. The misdescription of the offence in the statement of offence as a common law conspiracy to defraud had in the circumstances not the slightest practical significance. Even the persuasive arguments advanced by Mr Rawley on the appellant’s behalf on this aspect of the case failed to persuade me that in these circumstances there can possibly have been any actual miscarriage of justice.”

140 The dictum of Lord Bridge in Ayres has subsequently been applied in England where an indictment has been found to be defective. This has often been in the context of common law and statutory offences of conspiracy, where the former is charged on the indictment but it is the statutory offence which is proved by the facts: R v Tonner [1985] 1 WLR 344; R v Zemmel (1985) 81 Cr App R 279; R v Grant (1986) 82 Cr App R 324; R v Pickford [1995] QB 203. The principle established in Ayres was also applied in R v Searle [1995] 3 CMLR 196 where the indictment to which the offender pleaded guilty incorrectly alleged a breach of an Act rather than the relevant European Community Regulation.

has been applied in Australia. In Kahatapitiye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542 the Western Australian Court of Criminal Appeal dismissed an offender’s appeal where the indictment was found to be defective in respect of three counts relating to sexual offences. The indictment omitted reference to the essential element of the absence of consent. Templeman J concluded that the trial judge gave an “entirely appropriate direction to the jury in relation to the offence of sexual penetration without consent” and “It was clear from the summing up that the jury had been directed they had to be satisfied beyond reasonable doubt that the actions of the appellant were without the complainant’s consent.” He noted that the offender was represented at trial by an experienced counsel who took no objection to the form of the indictment. Being satisfied that in the circumstances of the case the appellant was neither prejudiced nor embarrassed the court applied the proviso and upheld the conviction. Templeman J stated (at [17]):

“… it seems to me one need point only to decisions of the High Court to the effect that juries are taken to have followed faithfully the directions given by the trial judge when considering their verdict. In other words, what the judge said takes priority over the indictment or carries the weight which in this case the indictment may not have done.”

142 Later, he said (at [22]):

Ayres

143 In Chanthaboury v The Queen [2007] NSWCCA 290; (2007) 176 A Crim R 438, a decision of this Court, the Court Attendance Notice charged that the appellant was the accessory to a completed offence although it was intended that he should be charged as an accessory to an attempted offence. The defendant pleaded guilty. The circumstances made plain that his plea was entered in relation to “attempt” and not a “completed act”. This Court applied the proviso and upheld the conviction.

144 In the course of the reasons in Chanthaboury reference was made to the discussion of the proviso in Swansson v The Queen [2007] NSWCCA 67; 168 A Crim R 263 where this Court divided over the question as to whether the proviso could be applied to uphold a conviction where the indictment was a nullity. Spigelman CJ and I held that it could. Sully, Simpson and Howie JJ held that it could not.

The course of the trial

145 The applicant did not object to the form of indictment at the trial and the trial was conducted so that the jury could have been in no doubt that “knowledge” or at the least “reckless disregard” were essential elements of the offences which the Crown must prove.

146 When opening the Crown case the prosecutor said in relation to counts 13 and 14 that the appellant had misled the relevant companies into believing that “he or his companies were licensed to provide financial services.” That submission followed the earlier discussion of the pleaded elements of counts 7 to 12.

147 In his final address to the jury the prosecutor, when discussing with the jury the relevant elements of the offences said:

“… the accused, knew that none of those conditions had been complied with or was at least reckless about that fact.

…

… just to remind you the sixth element is that Mr Doja either knew or was reckless about the fact that none of the conditions in section 911(b) had been complied with. So he either knew that or was reckless about it.

…

What I want to suggest to you, members of the jury, is that the evidence points overwhelming to the fact that Mr Doja well knew he didn’t hold a license or an authority that covered the provision of this type of financial advice and I’m going to take you to that evidence now. But before I do so can I just say something very briefly to you about recklessness which I’ve just referred to as being one of the ways in which the Crown can make out this particular element of the offence, that is, that Mr Doja was reckless about whether he did or didn’t hold a relevant license or authority at this time.”

148 At a later point in his submissions the prosecutor said with respect to counts 13 and 14:

“… that when he made that statement and that is that he held a valid and operative licence, he, that is Mr Doja, knew the statement was false or misleading or it was made with reckless disregard as to whether it was true or false in a material particular.”

149 At a break in the proceedings and before the prosecutor had completed his address the trial judge raised with counsel the fact that the indictment, in relation to all the counts except one and two, did not allege knowledge but in each case alleged recklessness. His Honour observed that it may not matter very much if, although the indictment alleged recklessness, the jury found actual knowledge. The Crown prosecutor accepted his Honour’s observation as being correct. The transcript does not record any comment by defence counsel, the plain implication being that the issue was of no concern.

150 The trial concluded with the Crown clearly submitting that the jury could convict the appellant on the basis of the applicant’s recklessness which would be satisfied if they found actual knowledge in the appellant. When discussing counts 7-12 the prosecutor said in relation to the elements of those offences:

“… that the statement was made with reckless disregard as to whether the statement was true or false or misleading in a material particular.”

151 Later, at the close of his submissions, the prosecutor said in relation to counts 13 and 14:

“… as I suggested to you yesterday, the critical issue there is really the same critical issue as in counts one and two did Mr Doja know that he wasn’t authorised or licensed. Of course he did, members of the jury, of course he did. He well knew that because he was a man that was in this industry.”

152 Defence counsel accepted the accuracy of the issues which had been identified for the jury by the prosecutor. In relation to counts 13 and 14 counsel said to the jury:

“What’s the issue in relation to counts 13 and 14, what will it come down to? It will come down to something like this, when Mr Doja told Man Investments or when he concurred in telling Capital Guaranteed Investments that he held a valid and operative licence or authority has the Crown satisfied you beyond reasonable doubt that when he told Man Investments that or when he concurred in Capital Guaranteed Investments being told that has the Crown satisfied you beyond reasonable doubt that that statement he made to them was false and misleading and that he made it either knowing it was false and misleading or being reckless as to its falsity. That’s what the issue I think it will come down to.”

153 The trial judge gave the jury written directions. In relation to count 13 they read as follows:

“The elements of this offence are substantially the same as the offences charged in counts 7-12 above.

In order to establish the offence, the Crown must prove the following beyond reasonable doubt -

That Mr Doja made a statement that he held a valid licence or authority under the Corporations Act that permitted him to sell financial products offered by Man Investments Australia Limited,

That statement was false or misleading in a material particular, that is, that any licence or authority he held did not authorise him to sell those products; and

a financial advantage, that is, the opportunity to earn commission on the sale of the financial product.

A statement is false if it is untrue. A material particular is something that is important or significant, and not merely trivial.

reckless disregard

when Mr Doja made the statement he knew that the statement might possibly be false and

went ahead and made the statement regardless of whether it was false.”

154 The written direction in relation to count 14 was materially the same as that for count 13.

155 When discussing counts 7-12 the trial judge told the jury that:

“In each of these counts, the Crown alleges that in making the statement alleged, Mr Doja acted in a reckless disregard of the false nature of the statement, because he did not obtain the necessary details from the person named, or if he did obtain details, what he wrote in the form was different from that.

In order to establish this element of the offence, the Crown has to prove beyond reasonable doubt that when Mr Doja made the statement, he knew the statement was, or might possibly be, false, and if he was aware that it might possibly be false he went ahead and made the statement regardless of whether or not it was false.”

156 His Honour then told the jury that what he had said about reckless disregard applied to counts 13 and 14. When summarising the position his Honour said:

“If you find that he either knew that he did not have an authority to sell those products, or he was reckless about it, then you can find that the necessary element of this charge has been made out.”

157 After the jury had retired they returned with various questions. With respect to a question asked in relation to the issue of recklessness his Honour said:

“You have the written directions. You will find that Mr Doja was reckless in relation to something if the Crown has satisfied you beyond reasonable doubt that he was either actually aware, for example, that he didn’t have a licence or authority that covered the provision of a financial service, or that the forecast he made in counts 3 to 6 was falsely misleading in any material particular, or that, having regard to what he actually knew, it was – I’m sorry, he was actually aware of those matters or that he was aware of a risk that, for example, the forecast was false or misleading in a material particular, and having regard to what he knew, a reasonable person would find it unjustifiable to take the risk. ….”

Conclusion with respect to grounds 1 and 2

158 The 19^th century cases which defined the common law response to a defective indictment were decided before the contemporary statutory procedures for the laying of criminal charges and the conduct of criminal trials were enacted. However, the policy evident in the statutory regime is consistent with the common law position. Where the defect deprives the court of jurisdiction a conviction cannot save the indictment and the conviction must be quashed. So much is plain if the indictment was not signed by an authorised person or alleged an offence unknown to the law. However, provided the court has jurisdiction and it may be concluded that the jury has been properly instructed as to the elements of the relevant offence, and the accused has not been prejudiced in his trial a conviction for that offence will not be disturbed.

159 In my opinion, although defective with respect to counts 13 and 14, the indictment in the present case was not itself invalid so as to deprive the District Court entirely of jurisdiction. The considerations which led to the quashing of the conviction in Janceski are not relevant in the present case. If objection had been taken at the trial the problem could have been dealt with by amendment of the indictment which would have been granted pursuant to s 17 of the Criminal Procedure Act.

160 It is apparent from a review of the course of the trial that there was no misunderstanding as to the basis upon which the Crown asserted that the offences comprising counts 13 and 14 had been committed. The Crown case was clearly identified in his Honour’s written directions and the jury must have determined that the relevant mental element of the offences had been proved. I have previously discussed the evidence relevant to these counts which I have reviewed in its entirety. The Crown case was overwhelming. The issue now sought to be raised was not identified at the trial. Whether by reason of the common law doctrine or by the application of the proviso in my judgment the appellant was properly convicted of both count 13 and count 14. I would refuse leave to raise these grounds of appeal.

Ground 3: The trial judge misdirected the jury in relation to the mental element required to be proven in relation to counts 13 and 14.

161 It was submitted on the appeal that because counsel and the trial judge did not identify with clarity whether the Crown case depended on actual “knowledge” or “reckless disregard” the appellant lost a chance of acquittal. It was submitted that the Crown should have been required to elect one or other as the relevant element of the offence.

162 I do not accept the submission. Whether by reason of his actual “knowledge” or by his “reckless disregard” the appellant committed the offence was not material. It was the one offence. The trial judge’s written directions, which I have set out above, made plain that the case the jury was required to determine was that alleging “reckless disregard.” It is true that his Honour also referred in his oral directions, as did defence counsel in his submission, to actual knowledge. Any ambiguity in the directions was of no consequence. If the jury found actual knowledge the offence was complete.

163 This was of course the point made by the trial judge in the passage to which I have referred at [71] above. Although the applicant complained on the appeal that at various points in the prosecutor’s closing address and on occasion in his Honour’s remarks there was a reference to ”knowledge” or “reckless disregard” as alternatives – and there was – I am not persuaded that the jury would have been confused or lacked an understanding of the findings which it was required to make before the applicant could be found guilty of either count 13 or count 14.

Sentence

164 The applicant also seeks leave to appeal his sentence. Three grounds of appeal are raised being:

Ground 4: the learned trial judge erred in finding in relation to counts 7-12 that “the offender filled out this part of the application forms with information that he fabricated, in whole or in part.”

Ground 5: the trial judge erred in finding in relation to counts 7-12 12 that the applicant “was clearly aware that what he did was … deceptive towards the financial institutions ….”

Ground 6: the trial judge erred in finding that the applicant was “dishonest and inaccurate” in his commission of all of the offences in counts 7-14.

165 For each of counts 7 – 12 inclusive the applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years. The sentences were partially accumulated. For each of counts 13 and 14 the applicant was sentenced to 3 years imprisonment with a non-parole period of 18 months. The sentences for counts 13 and 14 were made wholly concurrent with each other and were partially accumulated with the sentences for counts 7 –12. The overall effective sentence was imprisonment for 5 years 3 months with a non-parole period of 3 years 9 months.

166 In his remarks on sentence the trial judge noted that although charged with 14 counts the jury had not been able to agree in relation to counts 1 to 6 inclusive. His Honour expressed the view that it was

“… not improbable that the extremely complex drafting of the Commonwealth provisions, which necessitated a full day of legal argument before I directed the jury, followed by several pages of written directions, meant that the jury may not have understood what the essential elements were. Given that the experienced counsel who appeared for both the prosecution and the defence were as confused by the language of these provisions as I was, this is hardly surprising.”

167 In the ordinary course I would not have recorded these remarks by his Honour in my reasons. However, in recent years questions about the effectiveness of the jury system in relation to complex criminal matters have been raised. There is conflicting evidence as to whether juries always understand the directions they are given. It is also apparent that there is a considerable reluctance in some members of the community to participate in juries. That reluctance is likely to increase if the tasks which juries are asked to perform are made excessively difficult by reason of the complexity of the legislation which gives rise to the relevant offence. Although the draftsman may achieve an elegant statement of an offence which satisfies an experienced criminal lawyer, unless it can be understood and applied by a jury to the facts in a particular case it will be of limited practical utility.

168 The offences of which the appellant was found guilty were committed while he was carrying on business as a financial or investment advisor. The trial judge found that he was an effective salesman. He filled out various of the application forms with information that he fabricated in whole or in part. This related in particular to the statement of a client’s financial position including their assets, income or liabilities. His Honour found that what the applicant wrote on the forms was in many cases not authorised by the victims. His Honour said of the appellant:

“He was clearly aware that what he did was not only deceptive towards the financial institutions but also that it exposed the victims, his clients, to significant financial risk and obligations which they had little hope of meeting, and I make those comments knowing that he has told the Probation and Parole Service that he did not believe that anything he did was wrong.”

169 His Honour found that the offences were very serious and that the victims suffered great harm. Both Macquarie Bank and the individual clients suffered financial losses. For some of the clients those losses were significant.

170 When considering counts 13 and 14 his Honour said:

“In the case of those offences, the Crown alleged, and the jury were satisfied beyond reasonable doubt, that the offender obtained a financial benefit, namely commission on the sale of financial products, for himself or a company associated with him, by falsely representing to the company marketing the financial products that he was properly licensed to deal in products of that kind.”

171 His Honour found that the appellant was dishonest and breached a position of trust. The offences were committed for the appellant’s personal financial gain.

172 His Honour found that when sentencing the appellant both personal and general deterrence were of considerable importance. He was mindful of the fact that in the investment industry there were significant temptations for those with greater information and knowledge to exploit their position at the expense of others. Those who abuse their position must be expected to be dealt with severely. His Honour determined that a period of full time custody was appropriate.

173 On behalf of the appellant it was submitted that his Honour had made a number of errors when sentencing. It was submitted that he made findings in relation to the objective seriousness of the offences which were not justified. The appellant submitted that his Honour’s findings in relation to counts 7 to 12 that the applicant filled out the application forms with information that he fabricated was inconsistent with the indictment which averred reckless disregard as to whether the information in those applications were false and misleading. A similar submission was made in relation to his Honour’s finding that the appellant “was clearly aware” that what he did was deceptive towards the financial institutions. Finally, it was submitted that his Honour’s finding that the appellant was “dishonest and inaccurate” was not accurate because the Crown had never averred that the applicant actually knew that the figures in the loan applications were false.

174 Whether in any particular case the offence which has been committed involved actual knowledge or reckless disregard s 178BB creates an offence of which the essence is dishonesty. To my mind the difference in the criminality involved in an offence constituted by knowing falsehood as opposed to reckless disregard for the truth when a person is holding themselves out to be a financial advisor and assisting others to borrow money is minimal. If the financial details on an application for a loan are knowingly false the potential for financial problems for the person taking a loan are obvious. When the advisor does not care about the true situation the result may be just as damaging. In both cases the offence is committed without care for the ultimate fate of the applicant and for the personal financial gain of the offender. The position is similar in relation to a representation as to the holding of the relevant licence.

175 These issues have previously been considered in Strano v R [2002] NSWCCA 531 where this Court, when addressing the same argument in relation to s 178BB stated (at [64]):

“It may be accepted that, in terms of objective criminality, there can be a real difference between the making of false statements which are known to be false and the making of such statements with a reckless disregard as to whether they are true or not. That is so even though the same maximum penalty is available for each form of offence under s 178BB. Whether in any given case the difference in objective criminality is significant will, in my view, depend upon the facts of that case, and in particular upon the nature of the representations made, the degree of recklessness involved and the ambit of the loss occasioned.”

176 To similar effect is the decision of Abadee J in Pollard v DPP (1992) 28 NSWLR 659 observed (at 668-669):

“However, in relation to an offence under this section [s 178BB], I observe that the penalty is the same whichever limb is involved. Indeed, it might be reasonably thought that the conduct of a person who makes a statement with reckless disregard as to whether that statement is false or misleading should be treated as being just as blameworthy or guilty as the person who makes the statement knowing it to be false or misleading in a material particular. Each in my view could be said to be dishonest in the ordinary sense of the word. If a person knows he is making a false statement, that is a form of dishonesty. To do so with reckless disregard as to whether it is true or false appears to me capable of equally being regarded as dishonest. Indeed, someone who is prepared or willing to seek a financial advantage by making a statement without regard to whether such is true or false, without regard to what the true position might be, could well be thought to be acting dishonesty.”

177 Later, (at 672):

“Both limbs have the common characteristic of dishonesty of fraud. There is no apparent clear reason for holding that the first limb involves fraud or dishonesty, but the second does not. In my view the legislature intended the section and both limbs of it, to involve fraud or dishonesty.”

178 The respondent submitted that on any view of the matter the sentences actually imposed appropriately reflect the objective criminality of the offending. Findings were made by his Honour that the applicant abused his position of trust with respect to clients who were not sophisticated and financial institutions who trusted him. The offences were committed for financial gain and were part of a well planned and sophisticated operation continuing over a series of months. Losses were suffered both by clients and Macquarie Bank. In these circumstances it was submitted that the sentence was appropriate, both to punish the applicant, and also to deter others from committing similar offences.

179 In my judgment these submissions should be accepted. There are many persons in the community who are dependent upon financial advisors to assist them in securing their financial situation. The community must be able to trust that those who give advice are appropriately licensed and will act honestly in their dealings. In my judgment the sentences which his Honour imposed were appropriate.

180 The following orders should be made:

181 GROVE J: I have had the advantage of reading the draft judgment of McClellan CJ at CL with which I agree in substance and in the outcome which he proposes. I record that I do not consider statutory provisions or subsequent cases to detract from the authority of Heymann v The Queen (1873) LR 8 QB 102 to the effect that (absent a defect denying jurisdiction) defects, imperfections or omissions in the averments of an indictment whether in substance or in form do not result in conviction being set aside on appeal, because where issue is joined and the jury, properly instructed, must have found the necessary elements of the offence adversely to the accused, any such defect, imperfection or omission is cured by the verdict.

182 I agree with the orders proposed by McClellan CJ at CL.

**********

Citations

Doja v R [2009] NSWCCA 303

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Cases Cited

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Statutory Material Cited

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Broome v Chenoweth [1946] HCA 53

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CITATION:	Doja v R [2009] NSWCCA 303
HEARING DATE(S):	18 September 2009
JUDGMENT DATE:	18 December 2009
JUDGMENT OF:	Spigelman CJ at 1; McClellan CJatCL at 62; Grove J at 181
DECISION:	1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted but the appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal - conviction appeal - defective indictment - failure to aver to the mental element of the offence - whether the defect was such as to render the indictment invalid - whether the defect has been cured by the jury verdict - whether the defect has been waived - whether the proviso should be applied - indictment not invalid - whether jury was misdirected by the trial judge - appeal against conviction dismissed - CRIMINAL LAW - appeal - sentence appeal - whether trial judge erred in his findings - little difference in criminality involved in an offence constituted by knowing falsehood as opposed to reckless disregard to the truth in this case - appeal against sentence dismissed
LEGISLATION CITED:	Corporations Act 2001 (Cth) Corrupt and Ilegal Practice Prevention Act 1883. Crimes Act 1900 Criminal Appeal Act 1912 Criminal Appeal Act 1968 (UK)), Criminal Justice Amendment Act (1853) Criminal Law Act 1977 UK Criminal Law Amendment Act 1883 Criminal Procedure Act 1986 District Court Act 1973 Justices Act 1902 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 Boujaoude v The Queen [2008] NSWCCA 35; (2008) 72 NSWLR 85 Broome v Chenoweth (1946) 73 CLR 583 Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Chanthaboury v The Queen [2007] NSWCCA 290; (2007) 176 A Crim R 438 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261 Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 Glennon v The Queen (1993) 179 CLR 1 Heymann v The Queen (1873) LR 8 QB 102 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kahatapitiye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542 Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366 Lodhi v R (2006) NSWCCA 121; (2006) 199 FLR 303 Lodhi v R [2006] NSWCCA 101; (2006) 65 NSWLR 573 Mackrell v Western Australia [2008] WASCA 228; (2008) 190 A Crim R 43 Pollard v DPP (1992) 28 NSWLR 659 Quartermaine v The Queen (1980) 143 CLR 595 R v Aspinall (1876) LR 2 QBD 48 R v Ayres [1984] 1 AC 447 R v Gervaise; R v Preece (NSWCCA, 13 November 1997, unreported) R v Grant (1986) 82 Cr App R 324 R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v Mai (1992) 26 NSWLR 371 R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407 R v McVitie (1960) 2 QB 483 R v Molyneux (1981) 72 Cr. App. R 111 R v Morris (NSWCCA 25 November 1996, unreported) R v Pickford [1995] QB 203 R v Searle [1995] 3 CMLR 196 R v Stroulger (1886) 17 LR QBD 327 R v Tonner [1985] 1 WLR 344 R v Zemmel (1985) 81 Cr App R 279 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Strano v R [2002] NSWCCA 531 Swansson v The Queen [2007] NSWCCA 67; (2007) 69 NSWLR 406; 168 A Crim R 263 Taylor v The Queen [1895] 1 QB 25 The Queen v Rebecca Goldsmith (1873) Law Rep 2 Cr 74 Traveland Pty Ltd v Doherty (1982) 6 A Crim R 181 Wilde v The Queen (1987) 164 CLR 365
TEXTS CITED:	14th edition of Archbold’s Pleading & Evidence in Criminal Cases The History of Pleas of the Crown (1736) vol 2 at 193 Principles of Penal Law, 2nd ed (1771) at 181-182 A Practical Treatise on the Criminal Law (1816) vol 1 at 169-170)
PARTIES:	Tunde Doja (Appellant) The Crown
FILE NUMBER(S):	CCA 2006/15415
COUNSEL:	J I Ghabrial (Appellant) W J Abraham QC (Crown)
SOLICITORS:	O'Connor Legal (Appellant) Commonwealth Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0707
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ
LOWER COURT DATE OF DECISION:	28 March 2008