Giourtalis v The Queen

[2014] HCATrans 80

[2014] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S207 of 2013 ‑ S263 of 2013

B e t w e e n -

ANGELOS GIOURTALIS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2014, AT 11.40 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with MS G.A. BASHIR.  (instructed by Sydney Criminal and Family Lawyers)

MR P.W. NEIL, SC:   May it please your Honours, I appear for the respondent with my learned friend, MR P.R. McGUIRE.  (instructed by Director of Public Prosecutions (Cth))

MR GAME:   We are out of time by a short time and we seek an extension.

KIEFEL J:   Is there any difficulty with the extension?

MR NEIL:   Not opposed, your Honour.

KIEFEL J:   Yes, you have the extension, Mr Game.

MR GAME:   Your Honours, we are newcomers to this case - I will not say more about that but - if I could take your Honours to application book No 1 at page 92 we see first what are described as the mistakes.  Now, it is part of our case that what was ultimately encompassed by mistake was, as it were, the whole of the defence case or, to put it another way, that the fraud was proved by showing that none of the things that the applicant did could have been mistakes.  I will show how that plays out shortly, your Honours.

The court then upheld in principle grounds 1 and 2 and we see page 99, ground 1 upheld.  Page 101, ground 2 is upheld.  Now, a little later in the judgment it is suggested that, as it were, the Browne v Dunn error could be limited to the counts on which that submission was made but because it is a submission about credibility and the Crown Prosecutor actually said it showed that the accused was making it up as he was going along, that is the submission he put about these Browne v Dunn points to the jury.  It goes to his credibility generally.  It is not limited to particular counts. 

Then, your Honours, in respect of mistake, if we come then to pages 104 and 105, we see a ground of appeal that was dismissed and I am going to that ground to draw out how the mistake was actually used.  You see on the top of page 105 in respect of tendency, the name of those three companies.  So what is actually happening is that the mistake about the identity of the companies is being used, shall I say, offensively to establish tendency and coincidence.  So it is not as though it is co‑lateral.  It is actually sitting as part of the case.  So the honest mistake feeds into the tendency and coincidence directions. 

If you see at the top of page 106, the coincidence is said to include taxpayers containing false information.  We will see shortly that the very fact of false information the Crown sought to negative that as not being capable of being a mistake.  We can just see that at 112 to 113.  We see how the coincidence and tendency is being used to show that the entries in respect of those employers is not the result of an honest mistake - 113 top of the page.

Then the effect of the misdirections is dealt with at 114 and we say it cannot be limited in that way.  Then we come to an important part of the judgment at 122.  Now, 122, paragraph 91 his Honour the Chief Justice says, well, if these directions had stood alone he would have been satisfied – but he could not have been satisfied there was no substantial miscarriage of justice notwithstanding the satisfaction at paragraph 90.  The test in Baiada Poultry is actually whether it is open to acquit but never mind that in terms of the application. 

Page 123, his Honour refers to what the Crown Prosecutor said and that little passage there puts it neatly because what the Crown Prosecutor is saying is we have to prove that Mr Giourtalis deprived the Commonwealth of that money and he did so intentionally, that is this was not an accident or, to use his words “it’s an honest mistake”.  So, everything is being put is being negatived as not being an honest mistake.  We can see that and I will take your Honours to – if we just go back now to page 28 in the application book – 28 to 29, bottom of the page, talking about the errors, about the wrong taxpayers:

He says, and Mr Ramos addressed you yesterday in relation to this, that he made an honest mistake –

and then the Crown Prosecutor – it goes on:

You have heard over the period of cross‑examination several propositions being put to him about other mistakes that he said he has made –

Then all of those mistakes are listed and they go right down to the end of that paragraph ‑

it was the detail of the document itself, the inclusion of incorrect details with respect to money earned –

and so there we have the very subject of the fraud.  If you go to page 250, just to give your Honours one example of it, there at 763 we see how the prosecutor drives the negativing honest mistakes in relation to the entire substance of the fraud.  That is a mode of cross‑examination he used.  It could not be the mistake.  Defence counsel in his address that he made a mistake about the entries of the employer and that led to the other mistakes, that was the defence case.  So the Crown is using it offensively and the defence is also relying on it. 

If I just go back to what is said at 29, there is no way in which you can collateralise the mistakes because negativing the mistakes is at the heart of the way – the possibility of mistake is at the heart of the way at which the Crown puts its case.

KEANE J:   But is it not the point that the Chief Justice makes at 97 that however you cut it these are of almost no significance at all in relation to the question of fraudulent intent.  These are mistakes that are just so minor in the scheme of things that ‑ ‑ ‑

MR GAME:   Well, it looks like that could be said but once you examine it you see that it is actually going to the heart of the entire case.  Those passages I just – if it was just restricted to the employer that might be a reasonable proposition but the passage I just took you showed that the mistake – negativing the mistake is the way in which the Crown puts its case.  It is saying it could not be a – and as I said before, they are also putting it offensively, I mean, assertively, in respect of tendency and coincidence. 

KIEFEL J:   The critical fact was that the figures were false.

MR GAME:   That is right, your Honour.

KIEFEL J:   So how are these mistakes said to feed into that important fact?

MR GAME:   Because the Crown is saying that they cannot be mistakes about the incorrect figures and the defence is saying I made a mistake about the name of the employer and that led to the other mistakes.

KIEFEL J:   How could that be so?

MR GAME:   That is what he put.  That is how he put the argument.  Can I just take your Honours to the directions?  If you look at the directions on the subject at 33, one sees – the point, if I could come back to your Honour Justice Keane, the point is what is caught by the directions on mistake not what does one stepping back, one as lawyers think could be honest mistakes that he identified.  What is caught by the direction is the substance of the defence.  If one goes to 33 it is said in the middle of the page:

mistake is a very relevant issue, and I have referred to it briefly already in relation to the mistakes Mr Giourtalis gave evidence of making mistakes ‑ ‑ ‑

KIEFEL J:   But when the Chief Justice is referring to these mistakes as not really bearing upon the central issue as to the falsity of the figures, his Honour is talking about the application of the proviso, not the effect that the directions might have on the jury.

MR GAME:   No, but my point is that what he is saying is that the directions did not affect the verdict because the issue of mistake was collateral.  I am saying that the issue of mistake gets in the way of the directions, the very directions on the elements of the offence because the onus then sits on the accused to establish honest mistake in respect of everything that he says.  Those directions I just showed you on 33 say in relation to spreadsheets and mistakenly transferring information from one taxpayer to the other, that is the figures.  If I just go over the page, again, in terms of what the jury would understand, if you look at – this is all out of the bench book, about 10 lines in:

A mistake can apply where an accused is under a mistaken but reasonable belief about certain facts, which, if true, would render his conduct non criminal.

Now, that is Bergin v Stack applied in CTM but what that means is you would have to be talking about the figures because it could not be the name of the employer so the very directions themselves pick up the things that go – because of the way in which directions on – in a totally different field of discourse, errors of fact, in strict liability offences, only strike if they exculpate you, that direction picks up the matters that go to the substance of the defence. 

So if I go back to what the Chief Justice said – sorry, that passage I just showed you at page 123, one can see the way in which the Crown Prosecutor is putting it or to use his words, “it’s an honest mistake”, i.e. the honest mistake is the reverse of the defraud.  The Crown’s case is showing fraud by showing they are not mistakes so that the onus, the incorrect ‑ ‑ ‑

KEANE J:   Or that they are not mistakes that matter in any way.

MR GAME:   No, no, your Honour, they are – what the Crown is saying is the Crown says you say you made a mistake about the employer but it is not just that mistake, it is this mistake and this mistake and this mistake and the figures and then the accused has to say, yes, it is those mistakes, so that the Crown negatives the defence by showing none of those things could be mistakes.  So, the two really do meet, your Honour, in my submission.  You can see that by the very directions that the judge gave on the topic that I just went to. 

KEANE J:   No one is disputing that the directions that the judge gave, in one respect – those directions were erroneous and the Court of Criminal Appeal accepted that there was a serious mistake.  The Chief Justice then goes on to say at 97, page 124:

The only type of mistake which the appellant said he made was that he misdescribed the name of the employer of various taxpayers.

So his Honour is looking at what sort of case of mistake that was raised on the evidence and says:

In each case where he stated that that misdescription arose, he contended that the other information in the taxation returns was correct.  For fraud or attempt to defraud to be established it was necessary for the Crown to prove beyond reasonable doubt that those figures which the appellant said were true were in fact false and known by the appellant to be false.  It would not be enough for it to be established simply that the wrong employer was inserted in the returns.

This is really the sentence or the couple of sentences that, I think, you really need to deal with:

The critical material in the returns were the figures which led to the refunds or the assertion of an entitlement to a refund.  The appellant did not suggest these figures were inserted in returns as a result of a mistake and the directions made it clear that their falsity and the appellant’s knowledge of such falsity had to be proved beyond reasonable doubt.

MR GAME:   Your Honour, first of all, I do not think that is actually correct when one looks at what I just took your Honours to at 250, paragraph 763, because the mistake then is he has to assert that the figures are incorrect and that is the point that the cross‑examiner cross‑examines him into.  But also, when you look at the direction at pages 33 and 34, it is in no way restricted in the way in which the Chief Justice said and it could not be.

KIEFEL J:   The Chief Justice is applying the proviso.  You can see that at paragraph 99. 

MR GAME:   I know, your Honour.  I understand ‑ ‑ ‑

KIEFEL J:   He has already dealt with the question of the directions being ‑ ‑ ‑

MR GAME:   Yes, but what he is saying is it is marginal and what I am saying is it is not marginal, it is central and one can see that straight away.  What it is saying is that his case has to be – that everything he did was a mistake and we saw that just in the passage that I went to, one mistake and a series of mistakes including the figures.  It cannot be anything else.  So that that direction at 33 is a direction that picks up everything that he says, even though he commences by saying that the name of the employer was incorrect. 

So, what you have, in my submission, in this case is a direction on mistake that countermands the direction on defraud.  That is the answer that I give to – what I have been saying almost from the moment I stood up is an attempt to answer that which appears in paragraph 97. 

Now, what I say also is this that – I say, first of all, the mistake fed into the coincidence tendency directions.  Secondly, the mistake went to the entirety of the defence case because that is how the Crown negatived the case and that is how we cross‑examined on it and that is how we put it to the jury.  Third, and this is new, the Court said at paragraph 96 that the directions on fraud were correct. 

Now, if you go back to the directions at pages 27, 28 and 29 – sorry, 27 – sorry, start at 25, those directions at 25, lines 15 to 20, those directions are Ghosh directions, same at page 27, lines 40 to 50.  What has happened is and the origin of this was the Crown Prosecutor’s address, so what has happened is that the Ghosh direction on dishonesty is erroneously - has sat at the heart of the directions on fraud. 

KEANE J:   Was this a point that was taken in the appeal at the CCA?

MR GAME:   No, it was not.  Not only was it not taken, nobody pointed it out to the court but it is – but I am saying that the court should not have exercised the proviso and I am saying there is no joy to be found in saying that the other directions were correct because they were not.  Your Honour, Peters v The Queen put this to rest in the late 1990s, whenever it was.  These are Code directions directed to other offences not to defraud so that this introduces an objective standard to his belief and not only that, if one reads – if one applies Peters to this situation you probably would not talk about dishonest means at all in this context. 

What you would talk about is depriving, knowing that there is no right to deprive because the means is not really the question but what it means is that when you have got these directions at 26 to 27, they segue straight into the directions on mistake.  So there is no comfort.  Those are misleading directions and they suggest that you apply an objective standard

to the state of mind of the accused once he has – as I have said in determining whether the conduct of the accused was dishonest.  Now, no point was taken but everybody had to – one cannot have a case where the parties do not point out to the court that the very legal basis on which the elements of the offence are directed is incorrect.  It is at the heart of the whole thing. 

So we say this to put it shortly.  We say this shortly, the mistake directions, they did go to the heart of the case and one can see that both from the directions and the way in which the Crown put the case.  They fed into the coincidence and tendency directions and there is no joy to be found in the suggested correctness of the directions.  Then, when it comes to the credibility point, we say it cannot be the case that the credibility point only applies to some things and not others.  It applies to credibility and his believability across the board. 

We say then this case does raise a question of general importance.  Is it possible to get to the proviso in circumstances such as this?  In Krakouer, the majority went one way.  Justice McHugh said it was a fundamental defect to have an error that went to the onus in respect of deemed supply, but secondly, there is still no authoritative decision on whether or not or what amounts to an error that goes to the root of the proceedings and we say these errors do go to the root of the proceedings properly understood.  Those are proper special leave questions.  If the Court pleases.

KIEFEL J:   I will ask Justice Keane to give the reasons of the Court.

KEANE J:   The point which the applicant seeks to agitate in this Court is whether it was open to the New South Wales Court of Criminal Appeal to apply the proviso, notwithstanding the errors which that court identified.  In this regard no question of principle arises for determination.  The question is one essentially of the sufficiency of the evidence of the guilt of the applicant.  The Court of Criminal Appeal scrutinised the evidence carefully before concluding that the evidence was overwhelming that the applicant’s conduct could not be excused as an innocent mistake.  The applications for special leave are refused.

AT 12.01 PM THE MATTERS WERE CONCLUDED