Criminal law and procedure - Appeal by reference from Attorney-General s 140(1)(a) Sentencing Act 1995 - Charges of fraud and conspiracy arising out of sale of salted gold tenement - Failure by prosecution to disclose report into share trading which may have revealed an arguable defence - Evidence of persons/parties who may have profited from fraud not disclosed to appellants - Direction as to lies - Fresh/new evidence
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Easterday v The Queen [2003] WASCA 69
Case
[2003] WASCA 69
Decision Date
CaseChat Overview and Summary
The appeal, Easterday v The Queen, involved the appellants challenging their convictions for fraud and conspiracy related to the sale of a salted gold tenement. The High Court of Australia considered the appeal by reference from the Attorney-General under section 140(1)(a) of the Sentencing Act 1995. The appellants argued that their convictions were unsafe and unsatisfactory due to undisclosed evidence and new evidence that emerged after the trial. They contended that the prosecution failed to disclose crucial reports and evidence, and that certain persons or parties who may have profited from the fraud were not disclosed to them.
The primary legal issues before the court were whether the convictions were compromised by the undisclosed and new evidence, and if the trial judge's direction to the jury regarding the lies made by the appellants was appropriate. The appellants argued that the undisclosed evidence, including the Australian Stock Exchange Surveillance Report and other reports, along with new evidence regarding share trading and the "salting" of samples, should have been disclosed to them. They also claimed that the trial judge did not correctly direct the jury on the criteria for drawing adverse inferences from the appellants' statements, which might have been lies.
In its decision, the court found that the undisclosed evidence was indeed significant and should have been disclosed to the appellants. The court held that the failure to disclose this evidence compromised the fairness of the trial and rendered the convictions unsafe and unsatisfactory. The court further noted that the new evidence provided additional context that could have affected the jury's assessment of the appellants' guilt. Regarding the direction to the jury, the court agreed that the trial judge did not adequately instruct the jury on the criteria for drawing adverse inferences from alleged lies, which was a misdirection that could have influenced the jury's verdict. The court concluded that the misdirection, in conjunction with the undisclosed evidence, meant that the convictions could not stand.
The court ordered the convictions be quashed and remitted the matter to the Court of Criminal Appeal of Western Australia for further consideration in light of the new findings. The High Court emphasized the importance of full disclosure of evidence and the necessity for accurate jury directions in criminal trials.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The appellants rely upon three grounds of appeal, namely:1.The convictions were unsafe and unsatisfactory having regard to evidence that was not disclosed to the Appellants, their solicitors or counsel by the Prosecution prior to or at the time of the trial or the original Appeals to the Court of Criminal Appeal of Western Australia.Particulars of Non-Disclosed Evidence(a)Australian Stock Exchange Surveillance Report No 54/90;(b)The first Karpa Spring Report of Freeman made on or prior to 8 April 1991;(c)The Karpa Spring Investigation Supplementary Report, Michael John Freeman and Hugh Keith Herbert dated 16th April 1992;(d)47 pages of handwritten notes made by G J Horsley between 12th February 1993 and 10th May 1993;(f)Evidence in the possession of the Western Australian Police Service as at December 1990 indicating that there had been undisclosed major share trading in Perilya Mines NL in or about June/July 1990;(g)Evidence in the possession of the Western Australia Police Service as at December 1990 identifying persons and share trading worthy of further investigation.2.The convictions were unsafe and unsatisfactory having regard to the fresh/new evidence that has become available since the hearing of the Trial which evidence was not known, disclosed or reasonably available at the time of the Trial or the original Appeals to the Court of Criminal Appeal of Western Australia.Particulars of Fresh/New Evidence(a)Evidence of previously undisclosed major share trading in Perilya Mines NL by parties other than and unrelated to the Appellants in or about June/July 1990;(b)Evidence that prior to the purchase of the tenements, Perilya Mines NL, through its officers, received notice that the samples from the tenements had been "salted";(c)Evidence that in or about June/July 1990, the market in Perilya Mines NL shares was affected and substantially promoted by representations made by officers of Perilya Mines NL;(f)Evidence of a new analysis of the scientific data confirming that the "salting" of the sample material from the tenements took place through the drill rig rather than after the sample material left the drill rig;(g)Evidence of a new analysis of the data from the Phase 4 drilling carried out by Perilya Mines NL in or about July/August 1990 establishing:(i)That the Phase 2 and 3 samples from the tenements had been "salted";(ii)The background value of gold for the tenements; and(iii)That the "salting" had taken place through the drill rig.(k)Evidence that the "Blue Bag" samples referred to at the Trial:(i)Were not the samples stolen from Wangara Storage; and(ii)They were in fact Phase 4 sample material to which foreign gold had been added.3.In the light of the non‑disclosed evidence and the fresh/new evidence, the "lies" direction given to the jury by the learned Trial Judge was not correct and not in terms required by the High Court of Australia in Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234.Particulars(a)The learned Trial Judge failed to draw to the attention of the jury the specific passages of evidence said by the Prosecution to have been lies and to give the jury a balanced summary of that evidence;(b)The learned Trial Judge failed to direct the jury that in respect of each statement said to have been a lie they could only draw an adverse inference where they were satisfied that:(i)The statement related to a material issue;(ii)The statement was, to the knowledge of the maker, false; and(iii)The only explanation for the making of the statement was a realisation of guilt;(c)The learned Trial Judge failed to direct the jury that the telling of an untruth inadvertently could not be indicative of guilt.