Dunn v The Queen - [2015] WASCA 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DUNN -v- THE QUEEN [2015] WASCA 126

CORAM: BUSS JA
NEWNES JA
MAZZA JA

HEARD: 14 NOVEMBER 2014

DELIVERED : 19 JUNE 2015

FILE NO/S: CACR 45 of 2014

BETWEEN: GREGORY JOHN DUNN
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
File No  :INS 107 of 2012

Catchwords:

Criminal law - Appeal against conviction - Conspiracy with the intention of dishonestly causing a loss to a Commonwealth entity - Alleged coconspirator pleaded guilty to the conspiracy charge and was sentenced prior to the appellant's trial - Alleged coconspirator a Crown witness at the appellant's trial - Whether the trial judge failed adequately to direct the jury in relation to the alleged coconspirator's evidence - Whether the trial judge failed adequately to direct the jury in relation to the alleged coconspirator's plea of guilty to the conspiracy charge - Whether a substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (Cth), s 135.4(3)
Evidence Act 1906 (WA), s 50

Result:

Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr P Roberts SC & Mr A L Troy

Solicitors:

Appellant: Lewis Blyth & Hooper
Respondent: Director of Public Prosecutions (Cth)

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

Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632
Bou‑Elias v The Queen (No 1) [2012] VSCA 61
Burnett v The Queen (1994) 76 A Crim R 148
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344
Connell v The Queen (No 6) (1994) 12 WAR 133
Cowell v The Queen (1985) 24 A Crim R 47
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Director of Public Prosecutions v Faure [1993] 2 VR 497
Evans v The State of Western Australia [2012] WASCA 13
Ferris v The State of Western Australia [2007] WASCA 69
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Moloney v The State of Western Australia [2006] WASCA 193
Napier v The State of Western Australia [2007] WASCA 248
O'Connell v The State of Western Australia [2012] WASCA 96
Power v The Queen [2014] VSCA 146
R v Fountain [2001] VSCA 200; (2001) 124 A Crim R 100
R v Fowler (1985) 39 SASR 440
R v Gallagher [1986] VR 219
R v Golding [2008] SASC 68; (2008) 100 SASR 216
R v May [1984] 13 CCC (3d) 257
R v Moore (1956) 40 Cr App R 50
R v Ormond [2012] SASCFC 130
R v White [2003] VSCA 174; (2003) 7 VR 442
R v Windsor [1953] NZLR 83
Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215
Romeo v The Queen [1988] WAR 304
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
White v The Queen [2006] WASCA 62

Table of Contents

BUSS JA.................................................................................................................................... 5
Overview of the Crown's case at trial
Aspects of the Appointor Arrangement
The deterioration of relations between Mr Thomson on the one hand and Mr Bartlett and Mr Sayers on the other
The identification of Barminco's profit for the 1999 taxation year and the 'problem' it presented
The documentation of the 'issue' of the special units in BUT pursuant to the FIS
Ms Grace's resignation as an employee of Thomson Fisher & Co
Mr Thomson's sentencing
The appellant's case at trial
The grounds of appeal
Ground 1: counsel for the appellant's submissions
Ground 1: counsel for the Crown's submissions
Ground 1: its merits
Ground 1: conclusion
Ground 2: counsel for the appellant's submissions
Ground 2: counsel for the Crown's submissions
Ground 2: the case law
Ground 2: a trial judge's role in relation to an unrepresented accused
Ground 2: the course of the trial: the trial judge's remarks to the jury at the commencement of the trial
Ground 2: the course of the trial: the prosecutor's opening address
Ground 2: the course of the trial: the appellant's opening address
Ground 2: the course of the trial: the evidence
Ground 2: the course of the trial: counsel for Mr Sayers' closing address
Ground 2: the course of the trial: counsel for Mr Bartlett's closing address
Ground 2: the course of the trial: counsel for Ms Grace's closing address
Ground 2: the course of the trial: the appellant's closing address
Ground 2: the course of the trial: the trial judge's summing up
Ground 2: its merits
Ground 2: conclusion
Ground 2: the proviso

Conclusion
NEWNES JA........................................................................................................................... 93
MAZZA JA.............................................................................................................................. 93

BUSS JA: This is an appeal against conviction.
On 8 November 2013, after a trial in the Supreme Court before EM Heenan J and a jury which began on 2 September 2013, the appellant was convicted on one count of conspiracy. He was sentenced to 7 years' imprisonment with a non‑parole period of 4 years.
The count alleged that between about 15 August 2002 and 17 July 2004, at Perth and elsewhere, the appellant, Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace conspired with each other and with Trevor Neil Thomson, with the intention of dishonestly causing a loss to a Commonwealth entity, contrary to s 135.4(3) of the Criminal Code (Cth) (the Code). The relevant Commonwealth entity was the Federal Commissioner of Taxation.
The appellant, Mr Bartlett, Mr Sayers and Ms Grace were tried together in a joint trial. The jury found Ms Grace not guilty. The jury was unable to reach a verdict in the cases of Mr Bartlett and Mr Sayers. As I have mentioned, the appellant was convicted.
The appellant was self‑represented at the trial. The other accused were separately represented by senior and junior counsel.
The fifth co‑conspirator nominated in the count, Mr Thomson, pleaded guilty on 6 May 2010 to a charge of conspiracy similar to that pleaded in the trial indictment. The charge against Mr Thomson alleged that between about 15 August 2002 and 30 June 2003, at Perth, Mr Thomson conspired with the appellant and 'divers others', with the intention of dishonestly causing a loss to the Commonwealth, contrary to s 135.4(3) of the Code.
On 13 May 2010, McKechnie J sentenced Mr Thomson to a term of imprisonment for the offence to which he had pleaded guilty.
The Crown called Mr Thomson as a witness at the trial of the appellant, Mr Bartlett, Mr Sayers and Ms Grace.

Overview of the Crown's case at trial

An overview of the Crown's case at trial is as follows.
At all material times, the appellant was a businessman with very substantial knowledge of and practical experience in taxation law and accounting. He did not have any formal qualifications. The appellant promoted taxation schemes which he largely designed. The purpose of the schemes was to avoid or reduce the incidence of taxation.
Each of Mr Bartlett and Mr Sayers was a very successful and wealthy businessman. They jointly controlled and operated a mining resources company, Barminco Pty Ltd, which later became a public company, Barminco Ltd (Barminco). The company acted as trustee of the Barminco Unit Trust (BUT). Fifty per cent of the beneficial interest in BUT was held directly by a company, Bremerton Pty Ltd (Bremerton), controlled by Mr Bartlett. The other 50% of the beneficial interest was held indirectly by a company, Nebraska Pty Ltd (Nebraska), controlled by Mr Sayers. Bremerton acted as trustee for a discretionary trust, the PM Bartlett Family Trust (the Bartlett Family Trust). Nebraska also acted as trustee for a discretionary trust, the RG Sayers Family Trust (the Sayers Family Trust).
Mr Bartlett and Mr Sayers were concerned about the amount of taxation payable on the profits of BUT. Barminco distributed the profits equally to Bremerton as trustee of the Bartlett Family Trust and Nebraska as trustee of the Sayers Family Trust. Each of Bremerton and Nebraska distributed its share of the profits to the ultimate beneficiaries.
Mr Thomson was an accountant who acted for Mr Bartlett and Mr Sayers and various entities they controlled.
Ms Grace was an accountant who was employed by Mr Thomson's firm, Thomson Fisher & Co.
Mr Thomson introduced Mr Bartlett and Mr Sayers to the appellant who claimed to be a specialist in taxation affairs.
The appellant advised that an arrangement, which became known as the 'Appointor Arrangement', was capable, if implemented, of reducing significantly the amount of taxation payable on the profits of BUT that were ultimately distributed to various beneficiaries of the Bartlett Family Trust and the Sayers Family Trust. After taking independent legal advice on the matter, Mr Bartlett and Mr Sayers decided to implement the Appointor Arrangement. They did so. The Appointor Arrangement involved the appellant, through entities he controlled, participating in a distribution of the profits of BUT. The Appointor Arrangement related to the taxation years ended 30 June 2000 and 30 June 2001.
The Crown did not allege, as part of its case, that the Appointor Arrangement was illegal, fraudulent or dishonest. The Appointor Arrangement was, however, subsequently disregarded by the Federal Commissioner of Taxation pursuant to pt IVA of the Income Tax Assessment Act 1936 (Cth). Neither the Appointor Arrangement nor its subsequent treatment by the Federal Commissioner constituted or was an element of the offence with which the appellant was charged and convicted.
The offence with which the appellant was charged and convicted related to an agreement to implement, and the implementation of, an arrangement which at trial was called the 'False Interest Scheme' (FIS). The FIS involved, in essence, a false and fraudulent pretence that a particular transaction had been entered into in June 1999 in relation to BUT and that the transaction related to the taxation year ended 30 June 1999.
The transaction involved the issue of 79.9 million special units in BUT to Bremerton and Nebraska as beneficiaries of BUT. According to the FIS, these special units were $1 units paid to 0.01 cent per unit with the unpaid amount (that is, 99.99 cents) being payable at a later date or dates. Interest was payable to Barminco on the unpaid amount at the rate of 9% per annum. The interest was payable in advance in respect of the 1999 taxation year. However, by the terms of issue of the special units and under the accounting arrangements for BUT, that interest was receivable by BUT, and therefore part of its assessable income, only in the next year, namely the 2000 taxation year.
The purported effect of the FIS was to create allowable deductions, namely interest payments, in the aggregate amount of about $7.19 million, which deductions were shared equally between Bremerton and Nebraska.
At trial, the evidence revealed that, in fact, no part of the FIS (including the issue of the special units) had occurred before 30 June 1999.
The Crown case was that a number of documents were prepared between July 2002 and September 2002 which falsely recorded that the issue of the special units had been made, and the related payments (including the interest payments) had occurred or should be treated as having occurred, in the 1999 taxation year.
Documents which created the false record were presented at a meeting allegedly attended by the appellant, Mr Thomson, Mr Bartlett, Mr Sayers and, possibly, others in September 2002. The documents were signed as if they were true.
In the result, amended income tax returns were filed for BUT, Bremerton, Nebraska and a number of other beneficiaries of the Bartlett Family Trust and the Sayers Family Trust. The other beneficiaries of the Family Trusts received, through Bremerton and Nebraska, amounts in respect of the non‑existent issue, before 30 June 1999, of the special units. The consequence was to achieve a substantial reduction in the income tax liability of the ultimate beneficiaries for the 1999 taxation year.
The critical issues at trial included:
(a)who was present at the meeting or meetings when the documents relating to the FIS were signed; and
(b)whether the signatures on the documents, which appeared to be those of Mr Bartlett and Mr Sayers, were in fact their signatures.
Other critical issues at trial included:
(a)whether, if the documents relating to the FIS were in fact signed by Mr Bartlett and Mr Sayers, either of them signed the documents without realising their contents or significance, but merely on the assurance of the appellant, further or alternatively Mr Thomson, that the documents were accurate and appropriate for them to sign; and
(b)whether, if the documents relating to the FIS were in fact signed by Mr Bartlett and Mr Sayers, either of them signed the documents because of a false representation by or assurance from the appellant, further or alternatively Mr Thomson, that the documents were merely replacements of original documents that were in fact signed in June 1999, but had subsequently been lost accidently.
The Crown's case at trial was that the appellant had devised the FIS in August 2002 as a means of fraudulently reducing the declared income of the Bartlett Family Trust and the Sayers Family Trust for the 1999 taxation year and that the appellant procured Mr Thomson to prepare false backdated minutes of meeting evidencing the issue in June 1999 of the special units in BUT.
The Crown further alleged that the appellant explained the FIS to Mr Bartlett and Mr Sayers and the perceived necessity for the FIS to 'protect' the Appointor Arrangement which had already been implemented.
It was also alleged that the appellant enlisted Mr Bartlett and Mr Sayers to participate in the FIS and that Ms Grace had knowingly assisted in the implementation of the FIS.

Aspects of the Appointor Arrangement

The Appointor Arrangement involved the 'sale' of the office of Appointor under each of the Bartlett Family Trust and the Sayers Family Trust to an entity controlled by the appellant. The appellant was to receive 10% of the sale price as a commission for his role in creating and implementing the scheme. The appellant was to pay any taxation assessed in connection with the arrangement.
According to the Crown, in late 1999 or early 2000, the appellant had the first of a number of meetings with Mr Thomson, Mr Bartlett and Mr Sayers. At the first meeting, the appellant explained to Mr Bartlett and Mr Sayers the features of the Appointor Arrangement.
The initial proposal was for the offices of Appointor to be sold for a total of $27 million with an additional $3 million being payable to the appellant as a commission. The 'sale' was to be for a period of two years. Later, the total amount of the sale price was increased from $30 million to $50 million.
The appellant promised to pay $500,000 from his commission of $5 million into a 'fighting fund' to be established for the purpose of defending any action taken by the Federal Commissioner of Taxation in respect of the Appointor Arrangement.
Solicitors acting for Mr Bartlett and Mr Sayers, and relevant entities controlled by each of them, sought advice from Mr RK O'Connor QC in connection with the Appointor Arrangement. In a written opinion dated 24 March 2000, Mr O'Connor described the Appointor Arrangement as follows:
Essentially, the proposal is as follows. Mr P M Bartlett and Mr R G Sayers have been, and are, the Appointors of the two family trusts, respectively. [Namely the P M Bartlett Family Trust of which Bremerton Pty Ltd is the trustee and the R G Sayers Family Trust of which Nebraska Pty Ltd is the trustee.] Both those trusts were created on 4 September 1985, before capital gains tax became effective on 20 September 1985. What is under contemplation is that Messrs P M Bartlett and Sayers will resign their offices as Appointors of the two family trusts in consideration for payment of $27 million. By virtue of the reasons discussed below, including that Messrs P M Bartlett and Sayers have been Appointors since before the enactment of the capital gains tax legislation, it is suggested that that $27 million will not be taxed. The New Appointor (Timebase Investments as trustee of the Corpex Trust) to both family trusts will pay the $27 million to Messrs P M Bartlett and Sayers as the cost price of attaining those offices as part of a profit-making undertaking or plan so that that cost should be deductible in the calculation of the profit on realisation in the profit-making undertaking or plan. It is proposed that the New Appointors will have distributed to it from the P M Bartlett Family Trust and the R G Sayers Family Trust, over a period of two years, an amount of $30 million. Under the documentation, that New Appointor/beneficiary of the two family trusts will then irrevocably cease to have any entitlement to further income from the two family trusts and that cessation is to be the realisation or finalisation of the profit-making undertaking or plan in which the $27 million should be able to be deducted. Thus, the $27 million received by Messrs P M Bartlett and Sayers is sought to be received as a non-taxable amount, yet that $27 million paid by the New Appointor/beneficiary is sought to be allowed as a deduction against the $30 million income received under the profit-making undertaking or plan.
Mr Bartlett and Mr Sayers agreed to enter into the Appointor Arrangement.
A deed of appointment was prepared by which Mr Bartlett and Mr Sayers, in their capacity as the existing Appointors and in exercise of powers conferred on them under the trust deeds, appointed Timebase Investments Pty Ltd (Timebase) as trustee of the Corpex Trust, a company controlled by the appellant, as Appointor of their respective Family Trusts. The deed also set out that Mr Bartlett, Mr Sayers, Bremerton and Nebraska anticipated that the net income of BUT would be $50 million and that Timebase (as, in effect, the appellant's nominee) would receive a commission of $5 million. The parties to the deed were Mr Bartlett, Mr Sayers, Timebase, Bremerton and Nebraska. The deed was dated 16 May 2000 and was executed by the parties.
The transfer or distribution of funds under the Appointor Arrangement was effected by the drawing, endorsement and delivery of promissory notes. The appellant and his entities were not actually to pay or receive any money under the Appointor Arrangement, except for the receipt of the commission.
In 2001, Mr Thomson was contacted by officers from the Australian Taxation Office (ATO) in relation to the Appointor Arrangement. In early October 2001, the appellant and Mr Thomson met with the ATO officers. The appellant told them that he had legal opinions which verified the efficacy of the Appointor Arrangement. At that time, the ATO decided not to proceed with an investigation.
According to the Crown, the appellant and Mr Thomson were alarmed by the interest of the ATO officers in the Appointor Arrangement. If the Federal Commissioner of Taxation disregarded the Appointor Arrangement for taxation purposes, there would be very serious financial consequences for Mr Bartlett and Mr Sayers or entities they controlled.
The Crown alleged that in late October 2001 there was a meeting at Mr Thomson's office attended by the appellant, Mr Thomson, Mr Bartlett and Mr Sayers. It was alleged that at the meeting there was a discussion about the inquiries by the ATO officers and distributions under the Appointor Arrangement.

The Crown alleged that, as a result of the inquiries by the ATO officers, the appellant decided that the promissory notes should be 'protected'. The appellant suggested to Mr Bartlett and Mr Sayers that they acquire an overseas company and arrange for that company to hold the promissory notes. In November 2001, the appellant, Mr Thomson and Mr Sayers met with Philip Egglishaw, a principal of a company called Strachans SA, in Melbourne in connection with the acquisition of a suitable overseas company. In February 2002, the appellant, Mr Thomson and Mr Bartlett met with Mr Egglishaw in Perth. In May 2002, the appellant, Mr Bartlett and Mr Sayers travelled to Singapore to make arrangements for the acquisition of the overseas company. Mr Bartlett and Mr Sayers then acquired the overseas company, Crossline Overseas Ltd (Crossline).

The deterioration of relations between Mr Thomson on the one hand and Mr Bartlett and Mr Sayers on the other

According to the Crown, between 10 April 2000 and 16 May 2000, the appellant told Mr Thomson that he would pay Mr Thomson's firm 20% of the $5 million commission he was to receive under the Appointor Arrangement. The appellant proposed that he would contribute 70% and Mr Thomson 30% of the $500,000 to be deposited in the 'fighting fund'. Mr Thomson agreed to the appellant's proposal.
The Crown alleged that in May 2002 relations between Mr Thomson, on the one hand, and Mr Bartlett and Mr Sayers, on the other, deteriorated. During the trip to Singapore, the appellant informed Mr Bartlett and Mr Sayers that he had given some of his commission to Mr Thomson. Mr Bartlett and Mr Sayers had not previously been aware of that fact or of the agreement between the appellant and Mr Thomson in relation to the commission.
According to the Crown, the appellant also revealed to Mr Bartlett and Mr Sayers, while they were in Singapore, that Mr Thomson had not lodged an income tax return for Barminco for a lengthy period, apart from the return for the taxation year ended 30 June 1998 which had been finalised by Ms Grace and lodged on 21 February 2002.
The Crown alleged that after they returned to Perth from Singapore, Mr Thomson and his partner, James Fisher, attended a meeting at the offices of Barminco. There was discussion about, amongst other things, the delay in the preparation and lodgement of income tax returns. Mr Bartlett and Mr Sayers told Mr Thomson they were dissatisfied with his performance.

The identification of Barminco's profit for the 1999 taxation year and the 'problem' it presented

In about June 2002, Ms Grace was seconded from Thomson Fisher & Co to Barminco for the purpose of bringing all taxation matters relating to Mr Bartlett and Mr Sayers, and the entities they controlled, up to date. One of Ms Grace's first tasks was to prepare Barminco's income tax return for the 1999 taxation year. At the time Mr Thomson believed, erroneously, that there was no profit to be distributed for that year.
The culmination of Ms Grace's work in preparing Barminco's income tax return for the 1999 taxation year was the preparation of a taxation reconciliation. This revealed that Barminco had in fact derived a net profit of $7,084,170. Mr Thomson saw the taxation reconciliation when he returned to work from leave in late August 2002.
The Crown alleged that, after being given details of the taxation reconciliation carried out by Ms Grace, the appellant told Mr Thomson that the net profit may cause a 'problem' with the Appointor Arrangement because of the 'pattern of distribution'. The appellant conceived of the FIS as a method of eliminating the 'problem' by reducing the net profit to nil.

The documentation of the 'issue' of the special units in BUT pursuant to the FIS

The documents of importance at trial in relation to the FIS included undated handwritten notes entitled 'Special Units' (exhibit 12), undated typewritten notes entitled 'Special Units' (exhibit 13), a typewritten document setting out a purported resolution of unitholders of BUT at a meeting purportedly held on 14 June 1999 (exhibit 95) and a typewritten document setting out a purported resolution of unitholders of BUT at a meeting purportedly held on 16 June 1999 (exhibit 96).
The typewritten notes reproduced, with minor variations, the handwritten notes.
The typewritten notes (exhibit 13) read:

Special Units

80,000,000

allotted 1999 tax year

100,000

fully paid

79,900,000

7,990

paid to [0.01] cents

79,892,010

uncalled amount

7,190,281

Interest on uncalled amount prepaid 30.06.99 at 9%

1 days interest = 1/365 x $7,190,281

19,699

Add to Barminco 99 profit

7,084,170

7,103,869

Add interest to Barminco 2000 profit

364/365 x $7,190,281

7,170,582

Bremerton Deduction in 99 year 50%

3,595,141

Bremerton No 2 Deduction in 99 year 50%

3,595,141

The documents setting out the purported resolutions were signed on behalf of Nebraska, Bremerton and another company, Laurinay Pty Ltd as trustee of the AP Bartlett Family Trust. One resolution purported to evidence the allotment of 100,000 fully paid special units and the terms of the allotment. The other resolution purported to evidence the allotment of the 79.9 million partly paid special units and the terms of the allotment.

Ms Grace's resignation as an employee of Thomson Fisher & Co

On or about 24 September 2002, Ms Grace resigned her employment with Thomson Fisher & Co. In a letter dated 24 September 2002 (exhibit 15) she said her decision to resign was 'as a result of what seems to be deviations from accepted accounting and taxation practices that appear to have been used by Thomson Fisher & Co'.

Mr Thomson's sentencing

Mr Thomson cooperated with the authorities in their investigations. He admitted that the documents relating to the FIS were, in fact, false and backdated. They had not been executed or signed in June 1999. Mr Thomson provided full details of his knowledge of the FIS, including the appellant's alleged activities, to the authorities. He agreed, if required, to give evidence for the Crown at the trial of others charged or to be charged.
When he was sentenced by McKechnie J, Mr Thomson's past and promised future cooperation were taken into account and resulted in a substantial sentencing discount.

The appellant's case at trial

Neither the appellant nor any of the other accused disputed at trial that the FIS was in fact fraudulent.
Neither the appellant nor any of the other accused gave evidence at trial.
The appellant did not adduce any evidence (ts 3232).
The appellant's case at trial has to be deduced from his opening and closing addresses to the jury and his cross‑examination of witnesses.
The appellant said in his opening address:
So before, about a month and a half, two months before this so-called alleged conspiracy, I had sacked Mr Thomson as my accountant for incompetence and we were barely on speaking terms. So what the prosecution needs to prove to you beyond a reasonable doubt is I intended to and did enter into a conspiracy with a man I had just recently sacked, I was barely on speaking terms with him, and then I'm supposed to have got him to prepare all the conspiracy paperwork, most of which he never showed me, and I'm supposed to have trusted him to do this notwithstanding the reason I sacked him was incompetence. That's what they've got to prove to you (ts 1003).
The appellant did not expressly contend, either in his addresses to the jury or in his cross‑examination, that he did not devise the FIS. Nor did the appellant expressly suggest that it was Mr Thomson who devised the FIS.
Rather, the appellant disputed Mr Thomson's evidence that the appellant had given Mr Thomson drafts of the false backdated minutes of meeting, containing the purported resolutions, which Mr Thomson had instructed his secretary, Sherryl Paternoster, to type.
At the hearing of the appeal, the court requested counsel for the appellant to summarise concisely the nature of the appellant's defence at trial (appeal ts 9).
Initially, counsel for the appellant said that 'the heart of [the appellant's] case' was 'probably best articulated' in three questions the appellant put to Mr Thomson in cross‑examination (appeal ts 9). The relevant passage in the trial transcript reads:
I put it to you that you attended a meeting after 4 September 2002 but before 30 September 2002 with at least yourself, myself, Mr Bartlett, Mr Sayers and Ms Grace in attendance. What do you say about that?---I recall a meeting with yourself, myself, Mr Bartlett and Mr Sayers but I'm not sure whether Ms Grace attended that meeting.
Thank you, Mr Thomson. I put it to you that at that meeting you presented two executed photocopies of the unit holder resolutions that you have said in testimony were typed by [your secretary, Ms Paternoster]. What do you say about that?‑‑‑At no stage did I present photocopied minutes to that meeting.
Do you recall stating at that meeting, unit holder resolutions had been lost or misplaced by you at the same time you lost four promissory notes made by the Barminco Unit Trust?---No. I did not make that statement (ts 1928).
Next, counsel for the appellant told this court that the appellant's defence at trial was that 'the documents relied upon, the resolutions, weren't created by him' (appeal ts 10). They were created by Mr Thomson and Ms Paternoster (appeal ts 10).
Later, counsel for the appellant referred this court to the following passage in the appellant's closing address:
Now, ladies and gentlemen of the jury, from the little bit that you've observed of me through this trial, do you believe beyond a reasonable doubt that I would enter into any meaningful agreement with Mr Thomson at all, let alone enter into an agreement to create false unit holder resolutions or be part of a criminal conspiracy when I just terminated his services, I was unhappy and angry with him and our relationship was cold. I terminated his services for conduct that wasn't illegal. And then it's alleged that I almost immediately entered into illegal conduct with him. I suggest to you, ladies and gentlemen of the jury, that's just not believable at all. Let alone believable beyond a reasonable doubt (ts 3914).
Counsel for the appellant said that passage was 'probably a distinct summary of [the appellant's] defence, if I can put it that way' (appeal ts 12).

The grounds of appeal

The appellant relies on two grounds of appeal.
Ground 1 alleges that a miscarriage of justice occurred at the trial because his Honour failed adequately to direct the jury 'as to the special scrutiny with which to consider Mr Thomson's evidence, Mr Thomson being an alleged co‑conspirator'.
Ground 2 alleges that a miscarriage of justice occurred at the trial because his Honour failed adequately to direct the jury 'as to the use they could make of Mr Thomson's guilty plea'.
On 15 June 2014, Mazza JA referred the application for leave to appeal on these grounds to the hearing of the appeal.

Ground 1: counsel for the appellant's submissions

Counsel for the appellant submitted that:
(a)As an alleged co‑conspirator, Mr Thomson was, by analogy to an accomplice, within 'a traditionally suspect class of witness'.
(b)Mr Thomson had a strong incentive to implicate the appellant, as well as the other accused, in the offending.
(c)Mr Thomson, in giving evidence as a Crown witness, was fulfilling his promise of future cooperation.
(d)In the circumstances, Mr Thomson's evidence required a corroboration warning.
(e)The trial judge's directions to the jury 'did not address the risk that the jury might not appreciate the danger in finding the appellant guilty based on Mr Thomson's evidence alone, especially having regard to the fact that it was Mr Thomson's evidence that went to establish that the appellant had explained the concept of the offending at a meeting with the co‑accused and that the appellant had falsified draft minutes relating to the offending for Mr Thomson to finalise'.
(f)Although his Honour gave a 'general direction' to the jury regarding Mr Thomson's evidence, the jury should have been warned against convicting the appellant or any of the other accused based on Mr Thomson's evidence alone.

Ground 1: counsel for the Crown's submissions

Counsel for the Crown submitted that Mr Thomson's position, as a convicted person, was made clear to the jury from the commencement of the trial, and the trial judge's directions to the jury in his summing up about how it should approach Mr Thomson's evidence were 'clear, more than adequate and in accordance with the approach agreed to by all parties'.

Ground 1: its merits

The appellant told the jury in his opening address that:
(a)the Crown's case 'revolve[d] almost entirely around one person's version of the conspiracy', namely Mr Thomson (ts 1000);
(b)if Mr Thomson had not agreed to give evidence at the trial, none of the accused 'would be here today' (ts 1000);
(c)Mr Thomson had previously pleaded guilty to the conspiracy charge and had received 'a reduced gaol sentence on the basis that he would give evidence in this trial' (ts 1000); and
(d)Mr Thomson alleged that the appellant, Mr Bartlett, Mr Sayers and Ms Grace conspired with him to defraud the Commonwealth (ts 1000).
Counsel for the other accused did not give an opening address at the trial.
At the beginning of Mr Thomson's evidence‑in‑chief, counsel for the Crown asked him questions about his plea of guilty and his reduced sentence:
I think, Mr Thomson, on 6 May 2010 you pleaded guilty in the Supreme Court to an offence related to your part in the matters that are the subject matter of this trial; is that correct?---Yes.
And you were sentenced to a term of imprisonment; is that correct?---Yes.
And you were given a reduction in your sentence pursuant to a particular section of the Commonwealth Crimes Act; is that correct?---Yes.
And that was by reason of your agreeing to give evidence in any trial or proceeding relating to the subject matter of the offence to which you pleaded guilty?---Yes (ts 1503 ‑ 1504).
On 18 October 2013, the trial judge raised with the appellant and counsel for the other accused, in the absence of the jury, whether there were any issues they wished to raise about the directions ultimately to be given to the jury. The following exchange occurred as to whether an accomplice direction should be given in relation to Mr Thomson:
HEENAN J: I think Mr Hill, you raised the question of an accomplice warning?
HILL, MR: Yes. It may have come from further down the Bar table, your Honour, but we would be submitting that this is not the case where such a direction is necessary.
HEENAN J: Is the reference to be taken to the evidence of Mr Thomson?
HILL, MR: Yes, your Honour.
HEENAN J: Well, there will be a number of reasons to scrutinise Mr Thomson's evidence closely.
HILL, MR: That's so, your Honour.
HEENAN J: Is any party pressing specifically for an accomplice warning to be given in relation to Mr Thomson?
ZICHY-WOINARSKI, MR: Your Honour, we were going to raise that matter this morning. We would be submitting, your Honour, and I'll hand up a copy of the case to your Honour, that an appropriate form of direction is that contained in the decision - and one for Mr Dunn - in the decision of the Court of Criminal Appeal of this State in Foo v The Queen [2001] WASCA 406, your Honour the history of [corroboration] warning section 50 is set out there and the particular form of the warning is set out that was given in the trial and which was approved in that case, is set out at paragraph 23.
And a simple position, your Honour, is that a warning to that effect is what is required in this case …
HEENAN J: Yes, thank you.
ROBERTS, MR: Your Honour, we did rely on the authority which is far more recent of Santos v The State of Western Australia [No 2] [2013] WASCA 39 (ts 3385 ‑ 3386).
Mr Hill QC appeared for Ms Grace, Mr Zichy‑Woinarski QC appeared for Mr Bartlett and Mr Roberts SC was the prosecutor.
On 22 October 2013, his Honour said, in the absence of the jury:
The whole question of what warning, if any, should be given to the jury about the credit of Mr Thomson, having regard to individual attacks upon his reliability and credit made in cross-examination and presumably to be developed in final addresses, and whether a formal accomplice warning is needed, I think should await the outcome of the content of the addresses. And again I would be prepared to hear submissions on that once addresses have been concluded and before I direct the jury (ts 3461).
Counsel for Mr Sayers submitted, in his closing address, that:
(a)Mr Thomson was, by his own admission, a dishonest man because 'he's agreed by his plea of guilty that he did dishonest acts or intended to do them or did them with the intention of dishonestly causing a loss to the Commonwealth' (ts 3637);
(b)apart from the circumstances of his plea of guilty, Mr Thomson accepted that he was a greedy man: a man who had misled his clients about the commission which he had received from the appellant or his share of the commission (ts 3637);
(c)Mr Thomson was 'unreliable and incompetent and lazy' (ts 3639);
(d)Mr Thomson was 'obviously a person whose word could not be relied on in relation to things that he was doing' (ts 3640); and
(e)Mr Thomson's work for Mr Bartlett and Mr Sayers and their entities was 'slack, negligent [and] self‑interested' (ts 3652).
Counsel for Mr Sayers argued that Mr Thomson had a very powerful reason, by virtue of the sentencing outcome following his plea of guilty, 'to look for ways that he might be able to provide assistance to the authorities, both before he was sentenced and after [he was sentenced]' (ts 3664). Counsel added that Mr Thomson's subjective belief (which counsel said was 'not quite correct at law') was that if he did not give evidence at the trial 'he might get sent back to gaol' (ts 3664 ‑ 3665). Counsel then said:
So can it possibly be that that sort of thing did not bear heavily on [Mr Thomson's] mind as he went through the process of confessing his role, as he said it was apparently to the authorities, and looking to see what advantage he could get from talking about others?
Part of that must have been, in the context of this case, that while [Mr Thomson] had to concede as it turned out his role up to a point, he had to paint himself in the best possible light so that when he came up for sentence, he'd be able to say, 'Look, it wasn't me, it was Mr Dunn [that is, the appellant]. I didn't do it for my own benefit, I did it for the benefit of my clients', and so forth, and to present the kind of picture that the authorities found credible and attractive and that led to the prosecution of other people, including the people who are here.
So when you consider all these things in relation to him, you would take into account the fact that he has been sentenced in a way which has given him a benefit for assisting the authorities, both in the past and in the future, and that he's a man who's accepted the loss of his own integrity and the loss of honesty and the loss of professional propriety that went with all of his conduct in this matter.
And as a result, I'd suggest you'd find his evidence of what happened at the meeting, just looking at it, as a delivery by the person of a set of circumstances to be so flawed and so incapable of being relied upon that you wouldn't be able to rely upon it for the purposes of your consideration in this case or you would discount it (ts 3665). (emphasis added)
The closing address of counsel for Mr Bartlett was generally consistent with the closing address of counsel for Mr Sayers. Counsel for Mr Bartlett referred to 'the vulnerability … of Mr Thomson's memory' and said that counsel for Mr Sayers had made 'a lot of comments … and quite a number of criticisms' about Mr Thomson and his memory. Counsel for Mr Bartlett 'adopt[ed] those criticisms' (ts 3768). He then added:
[T]here can be no doubt that Mr Thomson's testimony is based on what is best described as a flawed memory. And you may well think that it's not simply flawed, but it also demonstrates some degree of self‑interest to try and play down his role (ts 3768 ‑ 3769).

The appellant said, in his closing address, that:
(a)Mr Thomson was 'a man who had something to gain from saying to the Australian Crime Commission [that] "The handwritten versions of these documents [that is, exhibits 95 and 96] were Greg Dunn's"' (ts 3901).
(b)It was unbelievable that he (the appellant) would enter into the alleged conspiracy with Mr Thomson when he had terminated Mr Thomson's services, he was unhappy and angry with Mr Thomson and their relationship was 'cold' (ts 3914).
On 30 October 2013, after completion of the closing addresses and in the absence of the jury, counsel for Mr Sayers submitted that his Honour should include in his summing up a warning in relation to Mr Thomson's evidence:
Can I turn to the two points which I raised beforehand which have been left unresolved, and I can deal with them briefly, your Honour. On the earlier occasion, I think there were a bundle of cases including Foo from the Court of Appeal in this State and Jenkins in the High Court were handed up to your Honour in relation to the question of what if anything should be said about Mr Thomson's reliability, given his part in the offence.
And all I would seek to refer to, your Honour, Mr Woinarski [counsel for Mr Bartlett] previously submitted that a direction along the lines of that which … the learned trial judge gives in Foo, which is extracted in a Court of Appeal decision [2001] WASCA 406, could be adapted to the circumstances of this case, being basically an expression of the factual circumstances of what had happened to the accused taking into account ‑ and there was no accomplice warning in the sense of a corroboration warning, … the necessity for which has been abolished by section 50 of the Evidence Act of course, but in Foo at paragraph 21, the court quoted Kendrick, a Victorian case saying this:
'The reason which underlies the requirement for the warning ‑ '
‑ that in [that] case was a discussion of a corroboration warning ‑
' ‑ stems from the natural tendency for the accomplice to diminish his own responsibility for the crime and offload that responsibility on to other participants in the crime.'
And that's the passage which we say grounds the applicability of a caution given to the jury in this case, not about the need to find corroboration but about the circumstances and the content and the credibility of Mr Thomson's evidence.
Secondly, in Jenkins, there's a passage which if I didn't have due respect for the High Court judges appears to plagiarise Kendrick. It says at paragraph 30, [2004] HCA 57, paragraph 30. I won't read all of it:
'The principal source of unreliability is what is regarded as the natural tendency of an accomplice to minimise the accomplice's role in a criminal episode and to exaggerate the role of others including the accused.'
And that's the kind of warning ‑ caution should I say which in my submission would be applicable to Mr Thomson's evidence in this case in your Honour's summing up (ts 3945 ‑ 3946).
The trial judge responded by explaining how he proposed to direct the jury:
As to the so-called Shepherd direction and warnings about the credit of Mr Thomson, by reason of section 50 of the Evidence Act and generally I do not propose to direct that any part of Mr Thomson's evidence requires corroboration.
I will, however, as part of my direction to the jury, give a direction about the need to scrutinise the evidence of all witnesses carefully, and in this case, because of the [attacks] on [the] credit and the [reliability] of Mr Thomson which have been made by many counsel and by [the appellant] of the need to examine his evidence with particular care having regard to the fact that he is a sentenced prisoner whose sentence may possibly be reviewed, that there may be some human tendency to minimise his role and divert responsibility to others and that having regard to particular criticisms which have been made, there is a need to examine his evidence with care. I would also point out countervailing factors which I consider should be taken into account.
The fact of Mr Thomson's early admission of backdating resolutions in discussion with an officer of the tax department, I think it was Mr Stone although I'm not certain, of his cooperation with the authorities of his plea of guilty and his cooperation in this case, all being an indication of his acceptance of responsibility and his desire to make amends, but warning the jury that his evidence will obviously need to be examined with care. But that it is ultimately for them to decide what weight and credence to attribute to it (ts 3955 ‑ 3956).
On 31 October 2013, at 10.29 am, his Honour commenced his lengthy summing up (ts 3964). On 6 November 2013, at 3.16 pm, the summing up was completed and the jury retired to consider its verdict (ts 4276).
Early in his summing up, on 31 October 2013, the trial judge directed the jury in relation to Mr Thomson's evidence:
Now, the other witness who I wish to mention briefly at this stage is Mr Trevor Thomson whose evidence has been the subject of much criticism, attack and challenge by counsel for each of the accused and by [the appellant]. All of whom have suggested to you in various ways, that he is a witness who is unworthy of credit and is also independently unreliable and whose evidence ought not be accepted. I have to say something about the position of Mr Thomson.
First of all, as you know, he is a convicted criminal who has pleaded guilty to this very charge and has been sentenced to a term of imprisonment by a judge of this court and he has served at least part of that sentence and is presently on release. It is the case that when he was sentenced the sentence which was imposed by the judge who sentenced him was reduced pursuant to statutory powers because of assistance which he had provided to the authorities up to that point and for assistance which he promised he would continue to give to the authorities in the future, including giving evidence in this particular case if it ever got to court, as it has. For both those reasons, including the latter, there was a reduction in the term of his sentence.
There is provision … under State [sic] law which provides that where a person's sentence is reduced for those reasons, including because of the assurance of … future cooperation, the court may recall the order imposing the sentence and impose a sentence based on the full sentence, if the offender subsequently fails, wholly or in part, to fulfil his undertaking of cooperation. So although it has not been pursued in any detail, there was always the possibility, strong [or faint] as you may consider, that if Mr Thomson did not maintain his assurance of cooperation with the authorities, he may be recalled and his sentence revised to the extent that it had been reduced because of his assurance of future assistance to the authorities. Whether that is a factor affecting the credibility of his evidence or truthfulness, is a matter for you to bear in mind. It may be, it may not be, it will be for you to decide but it is a factor which needs to be taken into account.
[Mr Thomson] was variously suggested to be dishonest, greedy, incompetent, lazy and by [the appellant] a cunning man. It was submitted that there was a natural tendency on his part to displace or dilute the importance or gravity of his own conduct onto others, onto the co-accused. Whether that is a matter to cause you to doubt or undervalue his evidence, again, is a matter for you to consider.
It is the fact that he has cooperated with the authorities. You will remember that he said when first asked by his friend and colleague of the Australian Taxation Office, I think the officer's name was Mr Jones, whether these particular resolutions had been backdated, he immediately answered that they had been. And he then made a variety of statements, pleaded guilty to the charge at the first opportunity and was given concessional punishment because of his cooperation. Whether this rehabilitates him to any extent in your eyes is, again, a matter for consideration but it would be open for you to conclude that he is, at least in part, a man who has made some very serious mistakes, has been punished severely for them and is attempting now to make amends. Whether that is so and what effect that may have on his testimony is for you to decide.
What it does mean is that because of the criticism made against him, you should evaluate [Mr Thomson's] evidence closely, as indeed you will evaluate … the evidence of all the other witnesses, but if you are satisfied that his evidence is truthful or consistent with other evidence, or that certain parts of it are, then you are free to act on his evidence. But bearing in mind the need to scrutinise it as I have already said (ts 4000 ‑ 4002). (emphasis added)
Later in his summing up, his Honour reminded the jury of particular criticisms of Mr Thomson's evidence which had been made by the appellant, counsel for Mr Bartlett and counsel for Mr Sayers.
On 5 November 2013, the trial judge said, in the course of summarising the evidence of the witnesses:
The next witness and a very important witness is Mr Trevor Neil Thomson. And he gave evidence and was cross-examined over many days and the significance of his evidence is an important matter for you to consider and estimate.
I don't propose even to attempt to summarise Mr Thomson's evidence because I have said so much about it already and various aspects of it have been identified by counsel and [the appellant] as deserving of either acceptance or rejection and pointing to features associated with Mr Thomson's character which may affect its reliability.
It's also been asserted that Mr Thomson had a pecuniary interest to serve by attempting to maximise the profits for Barminco and hence the two trusts for the 2000 and 2001 years because of the shares that he and Mr Fisher would derive from the commission payable to them by [the appellant].
I don't in any way wish to suggest or imply that Mr Thomson's evidence is not of importance in this case. It's simply inappropriate for me to attempt to summarise it at this point because so much has already been said about it (ts 4203).
Although numerous complaints were made about his Honour's summing up, no complaint was made by the appellant or counsel for any of the other accused about his Honour's directions or comments in relation to Mr Thomson's evidence.
Section 50 of the Evidence Act 1906 (WA) provides:
(1)In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2)On the trial of a person on indictment for an offence -
(a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.
Section 50 was inserted by the Criminal Law Amendment Act 1988 (WA) and subsequently amended by the Acts Amendment (Evidence of Children and Others) Act 1992 (WA). Section 50 superseded s 36BE(1) of the Evidence Act.
In White v The Queen [2006] WASCA 62, Wheeler JA (with whom McLure & Pullin JJA agreed in relation to the ground of appeal which is relevant for present purposes) said:
[Section 50] is in almost identical terms to the former s 36BE(1), save that it now extends to encompass all of those witnesses in respect of whom there was formerly a rule of law or practice which required the giving of a 'corroboration warning'. In relation to any such witness, the trial judge is now positively forbidden to give to the jury a warning to the effect that it is dangerous to convict on the evidence of a category of witness because the witness falls into some suspect 'category'. The judge may comment upon the evidence of a witness, provided that the judge makes it clear that it is for the jury alone to evaluate the evidence of that witness, in the light of common experience. Where, however, there is a particular danger in acting upon the evidence of a witness which a jury might not otherwise appreciate, a warning should be given. It may be that the need to warn is not confined to 'hidden' dangers, but that is the most usual case in which a need to warn is said to arise: Bromley v The Queen (1986) 161 CLR 315 at 319, 325 and see R v Johnson [2004] SASC 241 at [44] - [47], where some examples are discussed [70].
…
Authority in this Court has not been as clear as it might have been in relation to the relevance of s 50 in the past. There has perhaps in some cases been a tendency to analyse a direction to see if it was 'good enough' in traditional terms, with s 50 regarded almost as a provision which excuses a failure to give 'full' direction in traditional terms in some cases. For example, in Lambley v The Queen [[2001] WASCA 38] at [17], the Court appears to have suggested that a warning will be both justified and required whenever the circumstances show some intrinsic lack of reliability in the witness. However, in the particular circumstances of that case, it may well have been common ground that the witness was in a category 'similar to' a prison informer, so that a jury would not, unassisted, appreciate what the dangers of the witness's evidence might be. A case which is often cited in this Court is Foo v The Queen [2001] WASCA 406 at [30] in which Parker J, with whom Steytler J and Olsson AUJ agreed, said:
'Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters.' (emphasis supplied)
I quoted that passage myself in Hoy v The Queen [2002] WASCA 275 at [18], and at [19] expressed the view that such a warning may also be appropriate even where the dangers are apparently obvious. However, having regard to the authority which I have discussed, it now seems to me that only if the words which I have emphasised in Foo, relating to 'hidden' dangers, are given their full effect, should that passage be regarded as accurate. The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 604 per Brennan J), it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given [77] - [78].
See also Moloney v The State of Western Australia [2006] WASCA 193 [9] ‑ [14] (Wheeler JA, McLure JA agreeing), [22] ‑ [30] (Robert‑Smith JA, McLure JA agreeing); Evans v The State of Western Australia [2012] WASCA 13 [41] ‑ [51] (Mazza JA, McLure P & Buss JA agreeing); Santos v The State of Western Australia [No 2] [2013] WASCA 39 [46] ‑ [48] (McLure P, Buss & Mazza JJA agreeing).
In Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344, I reviewed a number of decisions of the High Court in relation to corroboration warnings. See, in particular, Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250; and Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161. I also reviewed the decision of the Court of Criminal Appeal of Victoria in Director of Public Prosecutions v Faure [1993] 2 VR 497.
In Cecez, I concluded (Miller JA agreeing) that:
(a)the High Court authorities and the decision in Faure do not hold that, as a matter of course, a trial judge must instruct or warn the jury as to the need for careful scrutiny of the evidence of a prosecution witness whose evidence is significant (or even critical) to the prosecution case if the witness is of bad character or has his or her own interests to serve; and
(b)the necessity or desirability for such an instruction or warning will depend, in each case, on the particular circumstances, including whether there is a risk that the jury may be unable to appreciate without assistance, or may overlook, some deficiency or danger associated with the witness or his or her evidence [109].
Cases in which accomplice evidence is given by a co‑accused fall into a very special category. See Moloney [13]; Ferris v The State of Western Australia [2007] WASCA 69 [40] (Steytler P & McLure JA); Evans [49]; Santos [No 2] [47].
Apart from s 50 of the Evidence Act, a judge is bound to give an instruction or a warning to the jury if, in the circumstances of the particular case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr (324 ‑ 325) (Brennan J); Longman (86) (Brennan, Dawson & Toohey JJ); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J). This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).
In my opinion, the trial judge was not bound, in the circumstances, to give the jury a corroboration warning in relation to Mr Thomson's evidence. In particular, his Honour was not bound to give the jury an instruction or warning in the terms contended for in ground 1 of the appeal. In the circumstances, such an instruction or warning was not required to avoid a perceptible risk of a miscarriage of justice in relation to the assessment of Mr Thomson's evidence. His Honour's omission to give a corroboration warning or an instruction or warning in the terms contended for in ground 1 was not an error of law and did not occasion a miscarriage of justice.
His Honour reminded the jury during his lengthy summing up, commencing on 31 October 2013 and concluding on 6 November 2013, of particular criticisms of Mr Thomson's evidence made by the appellant and counsel for the other accused. At trial, no complaint was made about this aspect of his Honour's summing up by the appellant or counsel for any of the other accused.
There is no doubt that the jury would readily have appreciated from the evidence and from the trial judge's summing up that:
(a)The Crown's case against the appellant and the other accused relied, to a substantial extent, upon the truthfulness and reliability of Mr Thomson's evidence.
(b)Mr Thomson had previously pleaded guilty to a charge of conspiracy similar to that alleged in the trial indictment.
(c)Mr Thomson had been sentenced to a term of imprisonment for the offence.
(d)Mr Thomson's past and promised future cooperation with law enforcement agencies were taken into account by the judge who sentenced him, and resulted in a substantial sentencing discount.
(e)The appellant and counsel for the other accused had subjected Mr Thomson and his evidence to significant and sustained criticism and attack. The appellant and counsel for the other accused suggested that Mr Thomson was dishonest, greedy, incompetent, lazy and (according to the appellant) cunning. They also suggested that his evidence was unworthy of credit: it was unreliable and should not be accepted.
(f)According to the appellant and counsel for the other accused, Mr Thomson had his own interests to serve; in particular, a tendency to dilute the importance or seriousness of his own misconduct and, at least in part, to project his own misconduct onto the appellant and the other accused.
(g)It was necessary for the jury to scrutinise Mr Thomson's evidence, and evaluate it closely, in deciding whether his evidence was truthful and reliable.

I am satisfied that there was no hidden danger in relation to Mr Thomson's evidence which the jury might have been unable to appreciate without the assistance of an instruction or warning from his Honour. It is not apparent, on my examination of the trial record, that Mr Thomson had any attractive features, or that any other circumstances existed, which gave rise to a risk that the jury might overlook his status as a convicted criminal who had, on the case of the appellant and the other accused, his own interests to serve.
It is apparent from the different verdicts returned by the jury in relation to the appellant and the other accused that the jury carefully evaluated the evidence of Mr Thomson which inculpated, or tended to inculpate, each of the accused. As I have mentioned, although the jury found the appellant guilty, it returned a verdict of not guilty in relation to Ms Grace and was unable to reach a verdict in the cases of Mr Bartlett and Mr Sayers.
Ground 1 is without merit.

Ground 1: conclusion

I would refuse leave to appeal on ground 1.

Ground 2: counsel for the appellant's submissions

Counsel for the appellant submitted to this court that the trial judge should have given the jury a direction that 'obviated the aura of criminality introduced by Mr Thomson's plea of guilty to a conspiracy offence'. It was argued that the jury should have been directed that 'Mr Thomson's plea did not preclude them from acquitting all of the accused and should not be used as evidence of the guilt of any of the accused, except insofar as it went to Mr Thomson's credibility'.
Counsel for the appellant also submitted that his Honour was required to direct the jury that Mr Thomson's plea of guilty to conspiracy 'did not mean [that] one of the accused at [the] trial must have been Mr Thomson's co‑conspirator'. It was argued that, absent such a direction, there was a danger the jury would reason that 'because Mr Thomson had pleaded guilty to a conspiracy, at least one of the four co‑accused must have been guilty of being a party to [the] conspiracy'.

Ground 2: counsel for the Crown's submissions

Counsel for the Crown submitted to this court that it would have been inappropriate for the trial judge to have given the direction contended for by counsel for the appellant. In particular, it was argued that:
(a)during the trial there was no focus on the fact that the charge to which Mr Thomson had pleaded guilty was similar to the charge in the trial indictment;
(b)it was not suggested that Mr Thomson's plea of guilty had any necessary consequences for any of the accused; and
(c)the giving of the suggested direction could have been disadvantageous to all of the accused 'as it could have had the opposite effect on the jury from that implicitly contended for' by counsel for the appellant.

Ground 2: the case law

In R v Windsor [1953] NZLR 83, Windsor and Boock were jointly charged in the Magistrates Court with conspiracy to defeat the course of justice. Depositions were taken. Boock pleaded guilty and was committed for sentence. Windsor pleaded not guilty and was committed for trial.
Windsor was tried on an indictment containing two counts. The first alleged he conspired with Boock to defeat the course of justice. The second alleged that he and Boock wilfully attempted to defeat the course of justice. Windsor was convicted on the first count. No verdict was taken on the alternative count. Windsor appealed. His grounds of appeal included the contention that evidence given by Boock at Windsor's trial to the effect that Boock had pleaded guilty to the charge of conspiring with Windsor was wrongly admitted and that, having regard to the admission of this evidence and notwithstanding the corroboration warning given by the trial judge to the jury, the verdict should be set aside because it was unsatisfactory and it would be dangerous to let it stand.
Finlay J, who delivered the judgment of the Court of Appeal, said:
Whether, therefore, the plea of 'guilty' be regarded as an act or a declaration, evidence of it was not admissible against the appellant on his trial. If it be regarded as a confession, then it was still inadmissible, for a prisoner can be affected only by confessions of himself, and not by those of accomplices: R v Turner ((1832) 1 Mood CC 347; 168 ER 1298), Reg v Gardner and Humbler ((1862) 9 Cox CC 332), and R v Dibble ((1908) 72 JP 498); unless, of course, made in his presence otherwise than in a judicial proceeding, or assented to by him. None of those conditions was satisfied here, for the plea of 'guilty' was made in a judicial proceeding, and the appellant never assented to it. If the evidence of a plea of 'guilty' was neither a declaration admissible against the prisoner nor an admission or confession of which evidence could be given against him, then it is difficult to imagine on what ground it could be received. Its real purpose was, we should imagine, to reinforce the evidence of Boock by informing the jury that she herself had acted to her detriment upon the truth of the matters alleged in her testimony. But evidence of that could scarcely be admissible against the appellant, for what Boock said or did when a common purpose had ceased to exist was not admissible against the appellant (90).
The Court of Appeal refused to apply the proviso. Although the trial judge gave a corroboration warning he did not refer to the inadmissible evidence. The Court of Appeal held that the inadmissible evidence 'might have had considerable weight with the jury, which might well have asked itself why Boock should have pleaded "guilty" if there was not such a conspiracy as was alleged' (91). Their Honours concluded that they could not say that 'a reasonable jury would, without doubt, have convicted' (91). Accordingly, the appeal was allowed, the conviction quashed and a new trial ordered.
In R v Fowler (1985) 39 SASR 440, Hart and Fowler were jointly charged with having murdered Mr and Mrs Ashby. Hart pleaded guilty to murdering Mr Ashby and was convicted, after a trial, of the manslaughter of Mrs Ashby. Fowler pleaded not guilty to both charges. Fowler was convicted, after a trial, of murdering Mr Ashby but was acquitted of having murdered Mrs Ashby. He appealed against the conviction.
The trial judge failed to direct the jury that:
(a)if they were satisfied beyond reasonable doubt that Fowler had unlawfully killed Mr Ashby, but had a reasonable doubt about whether the Crown had proved that he intended to kill him or to do grievous bodily harm because of possible intoxication by drugs and alcohol, the jury should convict of manslaughter; or
(b)Hart's plea of guilty was not evidence against Fowler.
The Full Bench of the Supreme Court of South Australia held that, in consequence of the trial judge's failure to give those directions, the appeal should be allowed, the conviction quashed and a new trial ordered.
Matheson J (King CJ & Johnston J relevantly agreeing) said:
[T]he learned trial Judge omitted to tell the jury that Hart's plea of guilty was not evidence against the appellant (see The Queen v Moore (1956) 40 Cr App R 50).
In at least four places in his direction, his Honour reminded the jury that Hart had pleaded guilty to murdering Mr Ashby. In one place he said: 'You should not treat that admission as in any way necessarily reflecting on Fowler. It may, but it does not necessarily reflect on Fowler, the admitted fact that Mr Ashby was murdered by the accused Hart'. In my opinion, the law is clear that his admission did not reflect on the appellant at all. His Honour's omission to direct the jury accurately in this respect was more serious in a context where his Honour was at pains to tell the jury that what one accused said to the police is not evidence against the other. This omission also bears on the appellant's criticism of the direction on the doctrine of joint enterprise 'as it applied or possibly applied to the charge relating to the murder of Mr Ashby'. Clearly the Crown could not use Hart's plea of guilty to murdering Mr Ashby in support of their argument that Fowler was involved in a joint enterprise to murder Mr Ashby (448‑ 449). (original emphasis)
In Cowell v The Queen (1985) 24 A Crim R 47, Cowell and Burn were charged with indecent assault. Burn pleaded guilty and Cowell not guilty. Burn entered his plea before Cowell was tried for the offence. At Cowell's trial the prosecutor said in his opening address that Burn had been charged with an offence arising out of his own acts in relation to the victim and he had pleaded guilty. Defence counsel did not object at that stage but, after the close of the defence case, defence counsel applied to the trial judge for the discharge of the jury on the basis that the Crown had not called evidence that Burn had been charged and convicted on his plea of guilty. Burn was not a witness at Cowell's trial. The trial judge dismissed the application. Cowell was convicted. His appeal against conviction was allowed.
Cowell's challenge to his conviction was based on three matters. First, the prosecutor's statement in his opening address that Burn had pleaded guilty to an offence with which he was charged. Secondly, the manner in which the prosecution sought to link Cowell, through Burn, with criminal responsibility for what occurred in the victim's bedroom on the night in question. Thirdly, the contention that the trial as a whole had miscarried so as to render Cowell's conviction unsafe and unsatisfactory.
In the Court of Criminal Appeal of New South Wales, Street CJ (Lee & Wood JJ agreeing) reproduced the following statement by Lord Goddard in R v Moore (1956) 40 Cr App R 50:
When two people are indicted together for a criminal offence and one pleads Guilty and the other does not, it is the commonest thing in the world to tell the jury, as was done in this case, 'You must not pay any attention to the fact that the other man has pleaded Guilty'. Even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded Guilty, but the fact that he has pleaded Guilty is no evidence against his co‑prisoner. That was laid down by both Hale, Pleas of the Crown, vol 1, p 585n and Hawkins, Pleas of the Crown, Bk 2, c 46, s 34 and also in Tonge (1662) 6 St Tr 225, the accepted principle being that a man's confession is evidence only against himself and not against his accomplices. If a prisoner pleads Guilty, it does not affect his co‑prisoner (53 ‑ 54).
His Honour said that the principle enunciated by Lord Goddard had always been recognised in the criminal courts of New South Wales. His Honour elaborated:
When, in the course of a trial, one of a number of co‑accused pleads guilty, that fact is, of course, inevitably known to the jury who must be invited (but not directed) to return a verdict in consequence of that plea. At the same time, trial judges are astute to ensure that juries are made plainly aware that a plea of guilty by a co‑accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury.
Lord Goddard comments that, even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded guilty. This is by no means always the case. It is only permissible to tell the jury that another person has pleaded guilty if that is a necessary part of the overall material that the jury must have before them (50).
Street CJ observed that 'it [was] not easy to see how the Crown justified telling the jury that Burn had pleaded guilty' (50). Significantly, the jury was not told what offence Burn had been charged with; that is, whether it was an offence he had jointly committed with Cowell, or an offence of a several and different character from that with which Cowell was charged. His Honour continued:
Plainly enough, it was a highly significant and, as I would regard it, potentially prejudicial piece of information to put before the jury albeit that upon close analysis it may be that Burn's own criminal activity that night would not have necessarily involved any ultimate prejudice to the appellant in the eyes of the jury.
It would, however, have been necessary to ensure that the jury fully understood that Burn's plea of guilty should not be regarded by them as creating an aura of criminality surrounding the events of that night within which the question of the appellant's guilt fell for determination. Even accepting, as I must say I hesitate to accept, that it could be regarded as permissible to have opened it, plainly enough it would have been desirable for the jury to be very specifically informed of the limited use ‑ or one might say non‑use ‑ that the jury was entitled to make of this piece of information.
… There was nothing said in the summing up which would have assisted the jury to place aside, as it should have done, any prejudicial significance affecting the appellant by reason of this statement in the Crown's opening address (50 ‑ 51).
His Honour said it was unnecessary to consider whether the trial judge's failure to direct the jury that Burn's plea of guilty was not evidence against Cowell 'should be regarded as having brought about a miscarriage' (51). His Honour was of the view that the failure to direct on that matter, combined with Cowell's other complaints on appeal, created 'an overall situation in which … the conclusion is inevitable that the trial miscarried' (51).
In R v Gallagher [1986] VR 219, the appellant was charged with 43 counts of receiving secret commissions. He pleaded not guilty. After a trial, the jury returned verdicts of guilty on 20 counts. The appellant appealed against his conviction.
During his opening address, the prosecutor told the jury that the 'givers of corrupt gifts' (who were described on appeal as 'the developers'), in relation to the transactions forming the basis of the charges against the appellant, had pleaded guilty and been dealt with. The prosecutor also told the jury, in the course of opening, that such evidence was not capable of being used against the appellant. Defence counsel did not object when the prosecutor intimated his intention to call evidence that the developers had pleaded guilty and been dealt with.
On appeal, junior counsel for the appellant (who had been defence counsel) admitted that he did not object because he judged it was in the appellant's interest that the evidence of the guilty pleas be led (232). Defence counsel believed that cross‑examination of the developers in relation to the circumstances in which they pleaded guilty was likely to yield material favourable to the appellant (232). Defence counsel anticipated extracting from some or all of the developers that a 'deal' had been made in which each developer had been assured that if he pleaded guilty he would be dealt with in a way in which no conviction was recorded (232 ‑ 233).
The prosecutor was permitted to adduce evidence at the appellant's trial of the developers being charged, brought before the court, pleading guilty and being dealt with.
On appeal, one of the grounds of appeal alleged that the trial judge had erred in failing to discharge the jury, in circumstances where inadmissible evidence was opened, notwithstanding defence counsel's failure to object.
In the Full Court of the Supreme Court of Victoria, Young CJ, Kaye and Gray JJ held that the evidence in question was irrelevant to any issue in the trial and, accordingly, none of the evidence should have been opened or given (235 ‑ 236). The fact of a plea of guilty might have become relevant to the issue of a particular witness's credit, depending upon how the issue was raised, but until that happened the evidence of the developers' pleas of guilty, and the manner in which a particular developer was brought before a court and dealt with, was inadmissible (235). The prosecutor's statement to the jury, in his opening address, that the evidence of the pleas of guilty could not be used against the appellant was a correct statement of the law, and demonstrated that the evidence should not have been opened or given (236). However, no miscarriage of justice was occasioned by the trial judge's failure to discharge the jury on that account because defence counsel deliberately refrained from objecting to the evidence for legitimate tactical or forensic reasons (236 ‑ 237).
In Romeo v The Queen [1988] WAR 304, the three appellants, together with Ian Murray, were presented in the District Court upon an indictment which charged that between specified dates at Mount Magnet they conspired with each other to cultivate cannabis with intent to sell or supply it to another. Murray pleaded guilty to the charge and he was convicted upon his plea. Each of the appellants pleaded not guilty but they were convicted after trial. The appellants appealed against their convictions. The appeals were allowed, their convictions quashed and a new trial was ordered.
At the material time Murray held a pastoral lease of land at Mount Magnet. The property was known as Iona Station. The Crown case was that the appellants had occupied accommodation on Iona Station, and the appellants together with Murray had established a cannabis plantation and had harvested the crop and taken it away.
Murray made a full confessional statement to the police in an interview. He gave evidence at the trial of the appellants as a Crown witness. Although Murray admitted that he had been convicted of the offence, he claimed that he had changed his plea from not guilty to guilty upon wrong advice. Murray denied the truth of the confessional statement. The trial judge permitted Murray to be treated as a hostile witness. The confessional statement was put to him. He claimed that it was a concoction and denied that he had grown cannabis.
The Crown case against the appellants was circumstantial. The critical question in relation to each appellant was whether, upon the evidence admissible against him, it could be held beyond reasonable doubt that he was a member of the group which cultivated and harvested the crop.
Each appellant gave evidence in his own defence denying involvement in the alleged conspiracy and denying that he had been associated with the growing of the cannabis crop on Iona Station.
One of each appellant's grounds of appeal was that the trial judge's directions were inadequate in that, relevantly, he failed to direct the jury adequately on the effect of Murray's plea of guilty.
In the Court of Criminal Appeal of Western Australia, Burt CJ held that it was necessary for the trial judge in his direction to the jury (307):
To make it clear that the fact that Murray had pleaded guilty and that he had been convicted upon that plea was not admissible against any of the appellants in proof of the fact that he (the appellant) had been party to the alleged agreement: R v Moore (1956) 40 Cr App R 50 and R v May [1984] 13 CCC (3d) 257.
His Honour concluded that the directions given by the trial judge did not adequately cover that matter.
Brinsden J said in relation to the trial judge's directions concerning Murray's plea of guilty:
What his Honour said, however, in relation to Murray's evidence on oath that he had pleaded guilty, though on wrong advice, is at best ambiguous but at worst could have left the jury with the impression that they were entitled to assume that as he had said on oath he had been convicted of the offence that was evidence the three appellants had conspired with him to commit on their part the offences (310).
The appeal in Romeo was allowed, the convictions quashed and a new trial ordered because of a number of inadequacies in the trial judge's directions. That is, the inadequacies were not limited to the trial judge's directions on the effect of Murray's plea of guilty.

Ms Paternoster was shown exhibit 14 (which was identical to exhibit 96) and exhibit 95, being the typewritten documents setting out the purported resolutions of unitholders of BUT, one at a meeting purportedly held on 14 June 1999 and the other at a meeting purportedly held on 16 June 1999. She gave this evidence‑in‑chief in relation to the creation of the typewritten documents:
Could you tell us, please, your role in relation to what happened in the creation of these documents?---Yes. I was given pages of handwritten notes and requested to type up these minutes on old style minute paper as it is on the exhibit, not on the computer but on a type ‑ electric typewriter.
And who requested you to do that?---Trevor Thomson.
Now, in relation to the handwritten notes, were they written ‑ who's handwriting was that?---In my memory they were Trevor Thomson's handwriting.
All right. And did you type the document from the handwritten notes?---I did, the first time, yes.
And then what happened?---I handed both sets back to Trevor Thomson and then two to three weeks later they were given back to me with handwritten amendments on these, the ones I'd typed, and I was requested to immediately retype them again in exactly the same format with just ‑ incorporating the amendments.
All right. And when you originally received the handwritten document to type, do you recall whether or not the handwritten documents had dates on them?---Only the dates of 'held on 14 June 1999' and 'held on 16 June '99'.
It has those dates?---It had those dates on them, yes.
Right. Did you - did you say anything to Mr Thomson in relation ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑
‑ ‑ ‑ to this?---Sorry. I queried as to why they had to be done [on] a typewriter ‑ ‑ ‑
Yes?---- ‑ ‑ ‑ rather than being done on the computer which, as you would understand, if it's done on the computer if you make a mistake you can, you know, backtrack and sort of correct it.
And what did Mr Thomson tell you?---That it had been Mr Dunn's instructions they were to be done ‑ they didn't want records kept. That's why they had to be done on a typewriter, not on a computer where it could be held, you know, further on down the track on the hard disk.
And was anything said about the paper that was to be used for the typing?‑‑‑Just had to be the old style minute paper which we had in the office in ‑ on corporate files anyway. Had to ensure that the sections lined up with 1999 (ts 2265 ‑ 2266).
Ms Paternoster was cross‑examined by the appellant in relation to the creation of exhibits 95 and 96. The following exchange, as to the amendments to the first typewritten drafts of exhibits 95 and 96, occurred:
And when was the next occasion that you saw those two resolutions that you'd typed up for him?---I would say probably three to four weeks later.
Okay?---I could not be exactly sure on the time span, but it was a matter of weeks.
Yes. It certainly wasn't days. It was weeks?---Well, it wasn't days, no.
Yes?---Wasn't days. Two to three weeks. Maybe three to four, but it was not just days, it was weeks.
Thank you. Now, when they came back to you were they already signed or not signed?---No, the ‑ no, from memory the ‑ no, they weren't signed, because they needed to be amended. I understood ‑ no, go on.
And Mr Thomson had made amendments on them, had he?---From my memory it was you who'd made the amendments on them, Mr Dunn.
Why do you ‑ why do you say that it was me?---Because I understood that once I'd given them back that I was doing them on your instructions to Mr Thomson.
That was - - ‑ ?---That was ‑ ‑ ‑
‑ ‑ ‑ did you ever discuss these resolutions with me?---Did I?
Yes?---No, no way.
And there was no - was there any contact between you and I in relation to the typing or production of these?---No, there wasn't, no.
So the ‑ ‑ ‑ ?---Was all through Mr Thomson.
‑ ‑ ‑ the only reason that you would assume that the corrections were mine is because Mr Thomson said that. Is that correct?---Yes, yes, they'd been submitted to you.
So other than Mr Thomson having said that to you, you ‑ you would have no idea as to who made those corrections?---True (ts 2284).
The appellant asked Ms Paternoster some questions about her evidence that Mr Thomson told her to type exhibits 95 and 96 on a typewriter rather than a computer:
I take it that Thomson Fisher & Co had an old typewriter in 2002, did it?‑‑‑They did. It was an electric golf ball typewriter.
…
And why did Thomson Fisher & Co actually have an old typewriter?---It was used for typing envelopes.
No other reason?---There was odd - odd things typed up on it, but it was not ‑ not used very often, that's for sure.
And when Mr Thomson asked you to type the two resolutions on a typewriter, did you consider that that was a strange request?---I did and I queried it with him.
And can you just elaborate on your 'queried it with him'. Can you be more specific than that?---I queried the fact I was having to do it on the typewriter and to find old minute paper within the office and his comment, of which I have sworn in my statement is that you did not - you yourself, Mr Dunn, did not want any record kept around - around the place.
Once again, that was Mr Thomson telling you that?---That was Mr Thomson telling me that, yes. And that was his explanation when I queried why I was typing these ‑ these documents on a typewriter and documents of a few years previously (ts 2286).
Mr Fisher, a chartered accountant, was in partnership with Mr Thomson between 1996 and 2006 (ts 2298). Mr Fisher said, in cross‑examination by counsel for Mr Bartlett, that he considered the appellant to have 'far more experience in tax work than [he] had' (ts 2321). Mr Fisher also said, in cross‑examination by counsel for Mr Sayers, that the appellant was 'extremely bright', 'extremely meticulous' and 'a lot more knowledgeable' than he was in the taxation area (ts 2321).
Sandra Amaranti‑Smith was employed from time to time between about 1986 and about 2005 as the appellant's secretary. Counsel for the Crown showed Ms Amaranti‑Smith the undated handwritten document entitled 'Special Units', being exhibit 12. The undated typewritten version of exhibit 12, with minor variations, was also entitled 'Special Units', being exhibit 13. I have reproduced exhibit 13 at [51] above. Ms Amaranti‑Smith said the handwriting in exhibit 12 was the appellant's (ts 2353). The appellant's cross‑examination did not relevantly and materially weaken or undermine her evidence on that point.
Jillian Saint was an assistant commissioner of international tax at the ATO between 1994 and 2002. She has a Bachelor of Laws degree and a Master of Laws degree. In early 2003 she applied for employment with Irdi Legal, solicitors, the successor to Irdi & Associates (ts 2364). She met with Mr Irdi and was offered a position by him (ts 2365). The offer was subject to the agreement of the appellant, with whom she would be working (ts 2365). Mr Irdi told her that the appellant 'did a lot of his tax work for his clients and [she] had to get on with [the appellant] before [Mr Irdi] would engage [her]' (ts 2365). Subsequently, Ms Saint met with the appellant who told her that he (rather than Mr Irdi) wanted to employ her (ts 2365). She accepted the appellant's offer of employment and subsequently entered into a written employment agreement with his associated entity, Misty Mountain Pty Ltd (ts 2365, 2376). Ms Saint and the appellant signed the agreement (ts 2376). After commencing work with the appellant, Ms Saint ascertained that the appellant's work for his clients was 'basically tax schemes' (ts 2365). She worked on particular tax schemes including the Appointor Arrangement (ts 2365). Her instructions in relation to the Appointor Arrangement were 'to prepare the case ready for trial in the event that the arrangement was challenged by the Tax Office' (ts 2365 ‑ 2366).
Mr Hewitt gave evidence that in about July 2002 the appellant had told him that he was not 'happy' with Mr Thomson, 'specifically, in the role that [Mr Thomson] was supposed to be doing for [the appellant]' (ts 2394 ‑ 2395). Mr Hewitt agreed to become the new accountant and tax agent for the appellant and his associated entities (ts 2395).
Mr Hewitt said that in September 2002 he attended a meeting where the appellant made a presentation using a whiteboard (ts 2392). The people at the meeting comprised the appellant, Mr Thomson, Ms Grace, Mr Watson (who was then the financial controller of Barminco), Mr Bartlett, Mr Sayers and Mr Hewitt. The meeting was at Barminco's office (ts 2392). Mr Hewitt gave the following account of the appellant's presentation:
And can you tell us, please, what occurred in relation to this presentation? There's a whiteboard there. Mr Dunn's giving a presentation. Is that right?‑‑‑Yes.
And what ‑ what did it relate to? What ‑ what was said?---My recollection, it was related to outlining on the whiteboard a ‑ a matter of issuing units in a unit trust, being Barminco Unit Trust, and there being a ‑ interest on a loan that would be an expense in relation to that transaction. I recall then after it was explained about the only other thing at that meeting that I recall was Greg came to sit back down or turn to - and turned to Trevor, who was sitting opposite me, Trevor Thomson - that, 'Trevor, you'll need to find that minute - that relate[s] to the transaction.'
'You'll need to find that minute,' and - and was there any stress of any word said in relation to the - this - what was said?---No, there was no stress. I don't recall any response by Trevor or anyone else to - to that comment. It was along the lines that, 'You'll need to find - you can find that minute,' or, 'You'll need to find that minute.'
Would you have a look, please, at exhibit 12? You have a look at that document. Do you recall whether any of the figures written on that document appeared on the whiteboard that you saw at Barminco?---Sir, I can't specifically say that I recall these figures, no, but it certainly seems to be the - the matter - the - the same matter that I'm - I've just described, the issue of special units or units for - unit trust and an interest expense related to it (ts 2392 ‑ 2393).
Mr Hewitt accepted, in cross‑examination by the appellant, that the appellant's financial records were 'meticulous and well kept'; the appellant was a 'stickler for meetings and drafting up minutes for meetings and conducting meetings correctly'; Mr Hewitt had never been in a meeting attended by the appellant 'where there was even the suggestion of backdating minutes'; and Mr Hewitt had never been at a meeting attended by the appellant where backdated minutes were presented (ts 2396).
Mr Hewitt reiterated in cross‑examination by the appellant his earlier evidence about the appellant's whiteboard presentation:
As I said earlier when shown [exhibit 14], had I seen it before, I don't recall the figures that were placed on the board so the subject matter was all that I recall. The subject matter was in relation to the issue of units and an interest expense. Other than that, I can't be more specific as to figures that were put on the board (ts 2398).
Ian Cochrane, a solicitor, had performed legal work on behalf of Mr Sayers since 1993 and for Mr Bartlett since about 1996 (ts 2436 ‑ 2437). He met the appellant in around 2001 (ts 2437). At that time there was discussion about a merger between the businesses of Ausdrill Ltd, a public company of which Mr Sayers was the managing director, and Barminco (ts 2437 ‑ 2438). As at 2001, when Mr Cochrane met the appellant, the appellant was providing advice to Mr Bartlett in connection with the possible merger (ts 2438).
In October 2001, Mr Sayers gave Mr Cochrane the legal opinions of Mr RK O'Connor QC and Dr Hockley in relation to the Appointor Arrangement, and asked him to review and comment on the opinions (ts 2438). Mr Cochrane undertook that task and advised Mr Sayers that he 'thought it was pushing the boundaries and that they were aggressive structures; that [he] wasn't entirely comfortable with them' (ts 2438).
In early November 2002, Mr Cochrane was provided with a copy of a letter dated 5 November 2002 from Irdi Legal to Barminco in relation to Crossline (exhibit 53). In the letter, Irdi Legal said it acted for Crossline and that Crossline was the holder of various promissory notes in the total amount of $32,400,000 issued by Barminco. Irdi Legal demanded that Barminco provide a bank cheque for $32,400,000 payable to Crossline in exchange for the delivery of the original promissory notes. Barminco instructed Mr Cochrane to deal with Mr Irdi and respond to that letter (ts 2439).
Mr Cochrane gave evidence about a meeting he had with the appellant and Mr Watson in early November 2002 (ts 2439). They told him that Crossline was 'a structure set up … in Jersey' by a firm called Strachans and that Crossline was 'ultimately controlled by two trusts, the beneficiaries of which were the Bartlett family and the Sayers family' (ts 2439).
On 11 November 2002, Mr Cochrane attended a meeting at the offices of Irdi Legal. The meeting was attended by Mr Irdi, Mr Cochrane, Michael Lundberg (a lawyer who worked with Mr Cochrane) and Mr Watson. After the meeting Mr Cochrane received instructions from Mr Bartlett and Mr Sayers to enable him to 'understand the structures that had been put in place', including the Appointor Arrangement and Crossline (ts 2442 ‑ 2443).
By letter dated 18 November 2002 from Irdi Legal to Mr Cochrane (exhibit 54), Irdi Legal on behalf of Crossline made a proposal to resolve the dispute relating to the promissory notes. The proposal by Crossline included the provision of security over assets owned by Barminco and by Mr Bartlett and Mr Sayers for the purpose of securing the amounts payable under the promissory notes.
On 22 November 2002, Mr Cochrane had another meeting with the appellant. At the meeting the appellant 'continued to explain' to Mr Cochrane 'the background to the structures' (ts 2444). The appellant told Mr Cochrane that the promissory notes were issued for the purpose of capitalising BUT because Barminco's auditor had said there was a deficiency (ts 2459).
By letter dated 13 May 2003 (exhibit 186), Barminco sent Mr Cochrane copies of various documents, including copies of the purported resolutions of unitholders of BUT at the meetings purportedly held on 14 and 16 June 1999 (exhibits 95 and 96).
In November 2004, Mr Cochrane travelled to Singapore (ts 2452). The appellant, Mr Bartlett and Mr Sayers also went to Singapore at that time (ts 2452). Mr Cochrane had a meeting with Mr Egglishaw from Strachans in connection with Crossline (ts 2452 ‑ 2453). The appellant introduced him to Mr Egglishaw (ts 2453). While he was in Singapore, Mr Cochrane had separate discussions with the appellant 'concerning the various structures that [had] been put in place for Bartlett and Sayers for the various years, 2000 through to … 2004' (ts 2454). Mr Bartlett and Mr Sayers were present during some of those discussions (ts 2454).
On or about 17 June 2005, Mr Cochrane had a meeting with the appellant and the appellant's lawyer, David Shaw, in Bangkok (ts 2458). At the meeting Mr Cochrane raised with the appellant the issue of the 79.9 million special units in BUT (ts 2458). Mr Cochrane made a note of the appellant's explanation in relation to the issue of the special units, which reads: 'Trevor [Thomson] produced … a 1999 resolution he told me [amended] the unit trust which allowed Barminco to issue partly paid units. [The appellant] will check this' (ts 2458).
Mr Cochrane said, in cross‑examination by the appellant, that he had a conversation with the appellant in June 2005 in Bangkok. During this conversation the appellant told him that there was a '1999 resolution' in relation to the allotment of 79.9 million special units in BUT which Mr Thomson had prepared (ts 2524).
Mr Cochrane was recalled to give further evidence. The trial judge clarified with Mr Cochrane the following matters:
(a)when he was in Singapore in November 2004, Mr Cochrane had only one meeting with Mr Egglishaw but a number of meetings with the appellant (ts 3000); and
(b)Mr Cochrane visited Bangkok on two separate occasions in June and August 2005 and, on both occasions, met with the appellant and his lawyer, Mr Shaw (ts 3000).
Jonathan Young is a chartered accountant. He works in the stockbroking industry. Since 1996 he has been a director of Barminco (ts 2603).
Mr Young said, in cross‑examination by the appellant, that, to the best of his memory, Mr Thomson was a director of Barminco during the 1998, 1999 and 2000 taxation years (ts 2616).
Mr Young recalled seeing the appellant at Barminco's office in 2002 (ts 2616). He said the appellant was at Barminco's office 'in relation to advice that [the appellant was] giving on taxation planning and structuring' (ts 2617).
Mr Watson joined the Barminco group in January 1998. In October 1999 he became the financial controller of the Barminco group. In June 2001 he was appointed the finance director of the Barminco group. At the time of the trial he continued to hold that office (ts 2651 ‑ 2652).
Mr Watson said, in cross‑examination by the appellant, that:
(a)between 1998 and 2003 Mr Thomson was the director of Barminco who was responsible for 'strategic planning and tax compliance issues' (ts 2687);
(b)at the 'board level of Barminco', if there were any issues in relation to tax planning and tax compliance then the board would refer those matters to Mr Thomson (ts 2688);
(c)he was present at a number of meetings where agreements were made to distribute the profits of BUT; these meetings were called 'distribution meetings'; typically, these meetings were attended by the appellant, Mr Thomson, Mr Watson, Mr Bartlett and Mr Sayers; and at some of the distribution meetings promissory notes were issued or endorsed (ts 2690);
(d)the appellant collected the diagrams, and Mr Thomson collected the minutes and the promissory notes, at the end of the meetings, there was never any suggestion of backdating any documents and the appellant was 'pedantic' (ts 2693, 2695);
(e)he recalled attending meetings with the appellant where the appellant used a whiteboard (ts 2694 ‑ 2695); and
(f)he could not recall attending a meeting at which the appellant suggested that a document be backdated (ts 2695).
Mr Watson said, in cross‑examination by counsel for Ms Grace, that on 11 December 2002 he attended a meeting with the appellant, Mr Hewitt and Ms Grace (ts 2936 ‑ 2937). Ms Grace had previously shown Mr Watson the minutes, being exhibits 95 and 96 (ts 2934 ‑ 2935). At the meeting there was a discussion as to 'the appropriate and proper way to account for the transaction' referred to in exhibits 95 and 96 (ts 2936 ‑ 2937).
Mr Watson confirmed in re‑examination that the first occasion on which he saw the purported resolutions dated 14 and 16 June 1999 was shortly prior to November 2002 (ts 2937). The purported resolutions were shown to him by Ms Grace (ts 2938). Subsequently, Mr Watson had a meeting with the appellant in order to deal with the transactions recorded in the purported resolutions (ts 2938).
It is unnecessary to reproduce any of the evidence given by the other witnesses called by the Crown, namely Carol Hancock, Cristy‑Ann Shore, Robin Romero, Aaron Ashboth and Robert Philp.
Also, it is unnecessary to reproduce any of the evidence given by the witnesses called by the counsel for Mr Bartlett and counsel for Mr Sayers.
Ms Grace elected not to adduce any evidence (ts 3301).
I am satisfied, on my examination of the trial record and after weighing the evidence, that the Crown proved beyond reasonable doubt that the appellant conspired with Mr Thomson, with the intention of dishonestly causing a loss to a Commonwealth entity (namely, the Federal Commissioner of Taxation), contrary to s 135.4(3) of the Code, as alleged in the trial indictment. I am satisfied to the criminal standard of proof that the appellant agreed with Mr Thomson, and intended to agree with him, dishonestly to cause a loss to the Federal Commissioner and that the appellant intended that the conspiracy would be carried out or performed. Also, I am satisfied beyond reasonable doubt that the appellant devised the FIS in August 2002 as a means of fraudulently reducing the declared income of the Bartlett Family Trust and the Sayers Family Trust for the 1999 taxation year and that the appellant procured Mr Thomson to prepare false backdated minutes of meeting evidencing the issue in June 1999 of the special units in BUT. Further, I am satisfied to the criminal standard of proof that the preparation and use of the false backdated minutes of meeting was an overt act committed by each of the appellant and Mr Thomson pursuant to their agreement and intention dishonestly to cause a loss to the Federal Commissioner. My reasons are as follows.

First, neither the appellant nor any of the other accused disputed at trial that the FIS was, in fact, fraudulent. It was not in contest that the documents relating to the FIS were, in fact, false and backdated. They had not been executed or signed in June 1999. Each of the appellant and Mr Thomson was involved in the preparation of the false and backdated documents. Also, to the knowledge of the appellant and Mr Thomson, those documents were used in the preparation of materially misleading and deceptive taxation returns for the 1999 taxation year that were lodged with the Federal Commissioner of Taxation by Mr Thomson's firm, Thomson Fisher & Co. Each of the appellant and Mr Thomson intended that the documents should be used in that manner, even though the appellant was not actually involved in the preparation or filing of the relevant taxation returns.
Secondly, at all material times the appellant had a reputation for having very considerable knowledge of and experience in taxation and accounting matters, including a reputation for giving advice about the manner in which the incidence of taxation could legitimately be minimised or avoided. The skill, experience and reputation of the appellant in taxation and accounting matters was demonstrated by the evidence of Mr Thomson, Mr Fletcher, Mr Irdi, Mr Fisher and Ms Saint, including evidence as to the appellant's employment at Lavan Solomon, his consultancy arrangement with Mr Irdi and his ongoing role in relation to taxation schemes. Further, the appellant's continuing involvement in the taxation affairs of Barminco, the Sayers Family Trust and the Bartlett Family Trust was revealed by the terms of Ms Grace's memorandum of 13 September 2002 to the appellant (exhibit 102: see [267] above), and the evidence of Mr Hewitt, Mr Cochrane, Mr Young and Mr Watson.
Thirdly, the formulation (in particular, the content) of the FIS, in the context of the complex business and financial affairs of Mr Bartlett and Mr Sayers and their associated entities, required some intellectual skill and sophistication and a detailed knowledge of taxation law and practice. There is no doubt that, at all material times, the appellant had the requisite skill, sophistication and knowledge. The evidence shows that the appellant's skill, sophistication and knowledge in relation to taxation schemes substantially exceeded any skill, sophistication and knowledge that Mr Thomson may have had. Also, at all material times, Mr Thomson was disorganised and dilatory, and had failed properly to attend to the work he was obliged to carry out for Mr Bartlett and Mr Sayers and their associated entities.
Fourthly, it was not disputed at trial that in late 1999 or early 2000 the appellant, through his acquaintance with Mr Thomson, was introduced to Mr Bartlett and Mr Sayers. It was not in contest that the appellant devised the Appointor Arrangement and that at a meeting he explained the features of the arrangement to Mr Bartlett and Mr Sayers. The effect of the Appointor Arrangement, upon implementation, was to reduce significantly the amount of taxation payable on the profits of BUT that were ultimately distributed to various beneficiaries of the Bartlett Family Trust and the Sayers Family Trust.
Fifthly, it was a term of the Appointor Arrangement, as implemented, that Timebase (as, in effect, the appellant's nominee) would receive a commission of $5 million in connection with the transaction. Also, it was a term of the Appointor Arrangement, as implemented, that the appellant would pay or cause to be paid $500,000 from this commission into a 'fighting fund' to be established for the purpose of defending any adverse action taken by the Federal Commissioner of Taxation in respect of the Appointor Arrangement.
Sixthly, it was not in dispute at trial that the discovery by Ms Grace, in the course of preparing Barminco's income tax return for the 1999 taxation year, that Barminco had, in fact, made a net profit of $7,084,170 in that year may cause a 'problem' with the Appointor Arrangement because of the 'pattern of distribution'. Certainly, the appellant believed that the net profit may cause a 'problem' with the arrangement.
Seventhly, it was not in dispute at trial that the effect of the FIS, upon implementation, was to eliminate the 'problem' with the Appointor Arrangement by reducing Barminco's net profit for the taxation year ended 30 June 1999 from $7,084,170 to nil.
Eighthly, the appellant had a significant interest (including the commission of $5 million payable to his associated entity, Timebase) in defending the efficacy of the Appointor Arrangement from any challenge by the Federal Commissioner of Taxation as a result of the unanticipated net profit derived by BUT in the 1999 taxation year.
Ninthly, Mr Thomson gave direct evidence at trial, which was admissible against the appellant, to the effect that the appellant was involved in the alleged conspiracy. The evidence given by Mr Thomson in relation to that issue also constituted an admission by him of his guilt. Mr Thomson did not merely give evidence as to his plea of guilty. His evidence overwhelmingly related to the merits of the Crown's case; in particular, evidence of the appellant's criminal conduct and his own criminal conduct.
Tenthly, on my review of Mr Thomson's evidence, his cross‑examination by the appellant and counsel for the other accused did not relevantly and materially weaken or undermine Mr Thomson's evidence‑in‑chief to the effect that it was the appellant (and not Mr Thomson) who devised the FIS in August 2002 as a means of fraudulently reducing the declared income of the Bartlett Family Trust and the Sayers Family Trust for the 1999 taxation year and that the appellant had procured Mr Thomson to prepare false backdated minutes of meeting evidencing the issue in June 1999 of the special units in BUT.
Eleventhly, Ms Amaranti‑Smith gave evidence, that was not relevantly and materially weakened or undermined in cross‑examination, that she recognised the appellant's handwriting in the undated handwritten document entitled 'Special Units', being exhibit 12. The handwriting set out the proposal in relation to the allotment of the 79.9 million special units in BUT, purportedly during the 1999 taxation year. Ms Amaranti‑Smith had been employed as the appellant's secretary from time to time over a period of about 19 years.
The absence of a date on exhibit 12 does not relevantly and materially weaken or undermine the probative force of the document or Ms Amaranti‑Smith's evidence that the document was in the appellant's handwriting.
Exhibit 12 is consistent with Mr Hewitt's evidence as to the appellant's explanation on the whiteboard at the meeting attended by, relevantly, the appellant and Mr Hewitt. Mr Thomson gave evidence to similar effect, namely about an explanation given by the appellant, on a whiteboard, on a different occasion.
Further, the figures for interest and deductions in exhibit 12 correspond very closely with the contents of exhibits 95 and 96 and with the amounts returned as income in Barminco's returns for the 1999 and 2000 taxation years and the amounts received as distributions by Bremerton and Nebraska and claimed by them as allowable deductions.
I reject the appellant's contention at trial that it was reasonably possible that the undated exhibit 12 might have been a note which he had prepared for use at or as a result of the meeting on 11 December 2002, rather than at any meeting in September 2002 of the kind alleged by Mr Thomson, where the earlier issue of the units was explained. There was no evidence from either Mr Hewitt or Mr Watson to the effect that it was possible that exhibit 12 had been produced at the meeting on 11 December 2002.
Twelfthly, it is true that there was a conflict between the evidence of Mr Thomson and the evidence of his secretary, Ms Paternoster, as to whether the handwritten documents setting out the purported resolutions of unitholders of BUT at the meetings purportedly held on 14 and 16 June 1999 were in the appellant's handwriting (as Mr Thomson said) or in Mr Thomson's handwriting (as Ms Paternoster said). That was a matter for the jury to resolve, if it could, based on its assessment of the relevant witnesses and their evidence. It is not a matter that I am able to resolve by reference to the transcript. However, that issue, even if resolved in favour of the appellant, does not on my review and evaluation of the trial record as a whole and my weighing of the evidence, preclude my satisfaction beyond reasonable doubt as to the appellant's guilt. I note that Ms Paternoster gave evidence, in cross‑examination by the appellant, that her understanding at the material time was that the amendments she made to the initial typewritten versions of the purported resolutions were based on the appellant's instructions to Mr Thomson.
Thirteenthly, it is appropriate, despite the trial judge's failure to give the direction referred to in ground 2 of the appeal, to accord some limited weight to the jury's verdict of guilty as an aspect of the trial record. Mr Thomson gave evidence at the trial that was consistent with a conspiracy, as alleged in the trial indictment, between, relevantly, the appellant and him. Mr Thomson was subjected to a searching cross‑examination by the appellant and counsel for the other accused. His Honour instructed the jury that it should scrutinise and evaluate Mr Thomson's evidence closely, but if the jury was satisfied that his evidence was truthful or consistent with other evidence, or that certain parts of it were, then the jury was free to act on his evidence (ts 4002). Also, his Honour reminded the jury during his summing up of particular criticisms of Mr Thomson's evidence made by the appellant and counsel for the other accused. As I have mentioned in the course of dealing with ground 1 of the appeal, it is apparent from the different verdicts returned by the jury in relation to the appellant and the other accused that the jury carefully evaluated the evidence of Mr Thomson which inculpated, or tended to inculpate, each of the accused. Although the jury found the appellant guilty, it returned a verdict of not guilty in relation to Ms Grace and was unable to reach a verdict in the cases of Mr Bartlett and Mr Sayers.
Fourteenthly, although there was some reference at the trial to the fact that the charge to which Mr Thomson had pleaded guilty was similar to, if not identical with, the charge in the trial indictment, there was no particular focus on that matter at the trial. Also, it was not suggested, by the trial judge, counsel for the Crown, the appellant or counsel for any of the other accused, that Mr Thomson's plea of guilty had any necessary or other consequences for the appellant or any of the other accused.
On my examination of the trial record and after weighing the evidence, the only inference reasonably open is one of guilt against the appellant. There is no reasonable inference open, on the evidence as a whole, consistent with the appellant's innocence.

After paying full regard to:
(a)the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence;
(b)the jury's advantage in having seen and heard the witnesses; and
(c)his Honour's error in failing to direct the jury to the effect that Mr Thomson's plea was not admissible against the appellant in proof of the fact that the appellant had been a party to the alleged conspiracy,
I do not have a reasonable doubt as to the appellant's guilt on the count pleaded in the trial indictment or as to the correctness of his conviction on that count.
I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has in fact occurred. First, as I have mentioned, I am persuaded to the criminal standard of proof, on my examination of the trial record and after weighing the evidence, as to the appellant's guilt on the charge in the trial indictment. The jury properly rejected his defence. Secondly, I am satisfied beyond reasonable doubt that nothing at or in the conduct of the trial (including the trial judge's failure to direct the jury in the manner to which I have referred in the course of considering ground 2) precludes this court from deciding that no substantial miscarriage of justice has in fact occurred. His Honour's error was not, on the facts and in the circumstances of the present case, of a kind that precludes 'the proviso' from being engaged.

Conclusion

Leave to appeal should be refused on ground 1 and granted on ground 2. However, the appeal must be dismissed.
NEWNES JA: I agree with Buss JA.
MAZZA JA: I agree with Buss JA.

Special Units
80,000,000	allotted 1999 tax year
100,000	fully paid
79,900,000
7,990	paid to [0.01] cents
79,892,010	uncalled amount
7,190,281	Interest on uncalled amount prepaid 30.06.99 at 9%

1 days interest = 1/365 x $7,190,281	19,699
Add to Barminco 99 profit	7,084,170
7,103,869
Add interest to Barminco 2000 profit 364/365 x $7,190,281	7,170,582
Bremerton Deduction in 99 year 50%	3,595,141
Bremerton No 2 Deduction in 99 year 50%	3,595,141