Gould v R

[2021] NSWCCA 92

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gould v R; R v Gould [2021] NSWCCA 92

Hearing dates:

7-8 April 2021

Decision date:

10 May 2021

Before:

Bathurst CJ at [1]; Davies J at [30]; Adamson J at [35]

Decision:

In respect of the application for leave to appeal against conviction

(1) Refuse leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of each of grounds 2(a), (b) and (c).

In respect of the application for leave to appeal against sentence

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

In respect of the Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 (NSW)

(1)   Allow the Crown appeal.

(2)   Quash the sentence imposed in the District Court on 17 December 2020 and in lieu, sentence the respondent, Vanda Russell Gould, to a total term of imprisonment of 6 years, commencing on 11 May 2020 and expiring on 10 May 2026, comprising a non-parole period of 3 years and 6 months and a balance of term of 2 years and 6 months.

(3)   The respondent will become eligible for release on parole upon the expiry of the non-parole period on 10 November 2023.

Catchwords:

CRIME — Appeals — Appeal against conviction — Application of rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to grounds — Adequacy of direction that evidence be considered as a whole — No proper basis for a Murray direction — Whether the trial judge should have directed the jury about matters relating to credibility — Matters quintessentially within the province of the jury require no direction

CRIME — Appeals — Appeal against sentence Application for leave to appeal successful — Whether the sentencing judge erred in failing to sentence in accordance with the principles in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 — Whether the sentencing judge was entitled to sentence in accordance with Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 — Whether principles in Chiro v The Queen apply wherever extended unanimity direction given or only for omnibus offences which require proof of facts which themselves amount to offences – Alleged failure to take into account delay

CRIME — Appeals — Crown appeal against sentence — Whether sentence imposed was manifestly inadequate – relevance of respondent’s age – need for general deterrence – objective seriousness of criminal conduct

Legislation Cited:

Crimes (Sentencing Procedure) Act 1990 (NSW), s 11

Crimes Act 1914 (Cth), ss 16A, 35, 42, 43

Criminal Appeal Act 1912 (NSW), s 5D

Criminal Code (Qld), ss 210, 229B

Criminal Law Consolidation Act 1935 (SA), ss 49, 50, 58, 74

Criminal Procedure Act 1986 (NSW), s 294AA

Evidence Act 1995 (NSW), ss 50, 165

Income Tax Assessment Act 1936 (Cth), s 6

Statutes Amendment (Attorney-General’s Portfolio No 2) Act 2017 (SA), s 9

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Attwater v R; Maris v R [2021] NSWCCA 17

Burr v R [2020] NSWCCA 282

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37

Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Ewan v R [2020] NSWCCA 85

Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Gregg v R [2020] NSWCCA 245; (2020) 355 FLR 348

Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38

Hassan v R [2018] NSWCCA 213

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hua Wang Bank Berhad v Federal Commissioner of Taxation [2014] FCA 1392; (2014) 100 ATR 244

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24

Kaddour v R [2017] NSWCCA 294

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7

KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54

Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72

KMC v Director of Public Prosecutions (2020) 267 CLR 480; [2020] HCA 6

Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28

Magnus v R (2013) 41 VR 612; [2013] VSCA 163

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Pratten v R [2014] NSWCCA 117

Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; (2018) 275 A Crim R 400

R v Beach (1994) 75 A Crim R 447

R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198

R v D (1997) 69 SASR 413

R v Donald [2013] NSWCCA 238

R v Isaacs (1997) 41 NSWLR 374

R v Klamo (2008) 18 VR 644; [2008] VSCA 75

R v Murray (1987) 11 NSWLR 12

R v N, SH [2010] SASCFC 74

R v Ocek [2018] NSWDC 349

R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98

RGM v R [2012] NSWCCA 89

Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

Texts Cited:

Criminal Trial Courts Bench Book (NSW)

Marie Shaw SC and Ben Doyle, “The Age of Statutes and its intersection with Fundamental Principles: An Illustration” (2019) 40 Adelaide Law Review 353

Sentencing Bench Book (NSW)

The Hon Justice Geoffrey Nettle, “The Jurisprudence of the High Court of Australia on Sentencing”, National Judicial College of Australia Conference, “Sentencing: New Challenges” (2018)

Wigmore on Evidence, vol 9 (Chadbourn Rev. 1981)

Category:

Principal judgment

Parties:

Vanda Russell Gould (Appellant / Respondent)
Regina (Crown)

Representation:

Counsel:
H Dhanji SC / D Barrow (Appellant / Respondent)
J Single SC / T Epstein (Crown)

Solicitors:
Webb Henderson (Appellant / Respondent)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2016/278181

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17 December 2020

Before:

Wilson SC DCJ

File Number(s):

2016/278181

Judgment

1. BATHURST CJ: I have had the advantage of reading the judgment of Adamson J in draft. I gratefully adopt her summary of the facts giving rise to the conviction the subject of the appeal, her summary of the sentencing judgment and her summary of the parties’ submissions on the appeal.

The conviction appeal

2. I agree with Adamson J that the conviction appeal should be dismissed and, subject to one relatively inconsequential matter, her Honour’s reasons.

3. Contrary to the view taken by her Honour, I do not think that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies to ground 2(a). As her Honour pointed out at [120] below, r 4.15 does not apply to the first part of the ground. However, it seems to me that the amendment raising the second part of the ground is merely consequential on the first part. In these circumstances, I do not think that r 4.15 applies to ground 2(a).

4. Nonetheless, for the reasons given by Adamson J, the ground has not been made out.

The sentence appeal

5. I agree with Adamson J that leave to appeal should be granted and the appeal dismissed. I agree with her Honour’s reasons on ground 2, but would prefer to express my own views on ground 1.

Ground 1 – Alleged error in sentencing on the basis that particulars (1)-(4) have been proved

6. This ground really depends on two issues. First, was an extended unanimity direction required. Second, if such a direction was required, did the sentencing judge err in failing to sentence in accordance with the principles in Chiro v R (2017) 260 CLR 425; [2017] HCA 37 (“Chiro”).

a   Was an extended unanimity direction required

7. Both parties accepted that such direction was required. They were correct in doing so.

8. The offence was charged under s 43(1) of the Crimes Act 1914 (Cth). The section is in the following terms:

“43   Attempting to pervert justice

(1)   A person commits an offence if:

(a)   the person attempts to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and

(b)   the judicial power is the judicial power of the Commonwealth.

Penalty: Imprisonment for 10 years.”

9. The physical element of the offence is the act which is said to constitute the attempt to obstruct, prevent, pervert or defeat the course of justice. The mental element is that the act was carried out with that purpose or intention.

10. In the present case, four discrete acts, albeit carried out over the same period of time, were said to constitute the physical element. It was accepted that the jury had only to be satisfied that one act was carried out with the requisite intention to constitute the offence.

11. The case thus is not one where the prosecution advanced two legal formulations of its case, the alternative formulations depending on the same facts. An example of such a case is the decision of this Court in R v Cramp (1999) 110 A Crim R 198; [1999] NSWCCA 324 (“Cramp”) where manslaughter was left to the jury on the basis of unlawful and dangerous acts, gross negligence or both. An appeal on the basis that the jury should have been instructed that they had to be unanimous on one or other of those bases was rejected. Justice Barr, with whom Sully and Ireland JJ agreed, distinguished between cases predicated on alternative legal foundations of liability based on the same facts (such as the one before his Honour), and liability based on alternative factual bases (see Cramp at [63]–[66]).

12. In R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98 (“Walsh”), the same distinction was drawn. Justices Phillips and Buchanan made the following remarks at [57]:

“[57]   The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts [are] relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend ‘upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence’. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.”

See also Magnus v R (2013) 41 VR 612; [2013] VSCA 163 at [32], [46]–[47]; Pratten v R [2014] NSWCCA 117 at [45]–[47]; Ewan v R [2020] NSWCCA 85 at [34]–[38]; Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30 at [76]–[83].

13. In Lane v R (2018) 265 CLR 196; [2018] HCA 28 (“Lane”), alternative counts of murder and manslaughter were left to the jury on two factual bases. The accused and the deceased had been involved in an altercation during which the deceased twice fell to the ground and struck his head. The Crown contended that the accused had struck or punched the deceased before each of the falls, and that the accused’s action before each fall could found his liability for murder or manslaughter. The trial judge directed the jury that it was open to it to find that a deliberate act by the accused had caused the death of the deceased if it found that either fall was caused by the accused.

14. The Court of Criminal Appeal held that the trial judge erred in failing to direct the jury that they were required to be unanimous as to the factual basis on which they might convict the accused of murder or manslaughter. However, the majority applied the proviso, reasoning that it was not open to the jury to have any reasonable doubt that the deceased’s second fall was caused by a punch thrown by the accused.

15. The High Court agreed that an extended unanimity direction was necessary. In reaching that conclusion, the plurality cited the passage from Walsh to which I have referred at [12] above with approval. However, the High Court concluded that the majority of the Court of Criminal Appeal were in error in applying the proviso. In that context, their Honours made the following remarks at [42] and [50]:

“[42]   It must be accepted, of course, as the respondent argues, that it is to be assumed that the jury followed the trial judge's directions. But to say this is to accept the force of the appellant's submission. The absence of a specific unanimity direction in relation to the actus reus that caused the death of the deceased, coupled with the trial judge's direction that it was open to the jury to convict on the basis that a deliberate act of the appellant caused the death of the deceased if it found that either fall was caused by the appellant, means that it cannot be assumed that the jury was unanimous that it was the appellant's actions leading up to the second fall that established his guilt beyond reasonable doubt. As Fagan J said, it is quite possible that some jurors might have been satisfied that a voluntary act of the appellant caused the first fall and did not trouble to consider the circumstances of the second. And the jurors who found the actus reus made out in respect of the second fall may have pooled their conclusions with those who found the actus reus made out in respect of the first fall to reach their verdict. For a juror to reason in that way would not be to depart from the directions the jury had been given.

…

[50]   To dismiss the appeal as the majority did is to disregard the requirement of a unanimous verdict on the part of the jury and to ‘substitute trial by an appeal court for trial by jury.’ Such an error is apt to deny the application of the proviso because it means that it cannot be said that no substantial miscarriage of justice has actually occurred.”

16. In the present case, the particulars furnished provide four alternative acts by which the jury could conclude that the applicant committed the offence, provided he had the requisite intention. It was appropriate to give the extended unanimity direction. However, the result was that it could not be discerned from the jury’s verdict which of the acts particularised they were satisfied beyond reasonable doubt that the applicant had carried out.

b   Chiro

17. Justice Adamson has set out at [217] below the relevant legislation under which the applicant in Chiro was charged. The offence was essentially duplicitous in that a finding of guilt involved proving that the applicant had committed more than one offence over a period of not less than three days. It was in that context where a number of offences were alleged to have been committed for the purpose of establishing the charged offence, that the Court concluded that for the purpose of sentencing and in the absence of any inquiry of the jury of what offences they had found proved, the applicant should be sentenced on the most favourable view of the facts found against the offender. In that context, the plurality made the following remarks at [44]–[45]:

“[44] It is true, as the Crown contended, that an offence under s 50(1) is but one single offence, albeit constituted of two or more underlying acts of sexual exploitation separated by not less than the requisite number of days, and it is also true that, despite the allegation of a multiplicity of alleged acts of sexual exploitation, the jury need be satisfied of no more than that the accused committed two of those acts separated by a period of three days. If the accused is convicted, however, the sentence to be imposed is to be determined by reference to each sexual offence which the alleged acts of sexual exploitation would constitute if charged separately, as if the accused had been convicted of each of those offences. For that reason, the principle laid down in R v De Simoni is instructive. Plainly, an accused is not to be sentenced for an offence which the jury did not find the accused to have committed. Insofar as R v N, SH held to the contrary, it should no longer be followed.

[45]   The passage in Cheung to which the Court of Criminal Appeal referred does not gainsay that. In that case, it was noted that there had been some discussion in the course of oral argument about whether the trial judge could or should have questioned the jury as to the process of reasoning by which they came to their verdict. But the point assumed no importance in the reasoning on the appeal. The trial judge had not been asked to do so and it was not suggested that he should have done so of his own motion. Gleeson CJ, Gummow and Hayne JJ merely remarked that there would be very few cases in which it would be appropriate to do so, for the reasons given in Isaacs. So understood, Cheung does not stand as authority for the proposition that questions should not be asked of a jury and in any event Cheung did not concern an offence such as that arising under s 50(1) of the CLCA.”

18. Importantly, the Court did not overrule either R v Isaacs (1997) 41 NSWLR 374 (“Isaacs”) or Cheung v R (2001) 209 CLR 1; [2001] HCA 67 (“Cheung”), although stating that the considerations which informed the conclusions in each of those cases did not apply to the particular offence in respect of which the applicant was charged (in relation to Isaacs, see the plurality in Chiro at [36]–[42] and Bell J at [64]; in relation to Cheung, see the plurality in Chiro at [52] and Bell J at [71]–[72], cited by Adamson J in her judgment at [226]–[227] below).

19. It follows that the principles laid down in Isaacs and Cheung that, generally speaking, a judge is not required to sentence on a view of the facts most favourable to the offender and should make his or her own findings as to the aggravating and mitigating circumstances of the offence consistent with the verdict of the jury, remains good law. The question is whether the modification in Chiro to statutorily sanctioned duplicitous counts which, when sentencing could attract the principles in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (“De Simoni”), extends to cases where a single charge is presented in the terms of alternate acts and the jury verdict does not identify the particular act on which the conviction was based.

20. There are matters which tend to point in that direction. First, in Isaacs, in the passage approved by Cheung at [14], the Court emphasised that the primary constraint upon the judge’s power of decision-making is that the view of the facts adopted by the judge must be consistent with the verdict of the jury (Isaacs at 377–378). That is difficult where there are a number of different acts which could constitute the physical element of the offence.

21. Second, Cheung was decided on the basis that the jury’s verdict decided the issues presented by the plea to the indictment, and not all facts of possible relevance to sentencing (Cheung at [7]–[10]). In a case such as the present where there are a number of alternative factual pathways by which the jury could reach its verdict, the sentencing judge in forming his or her own view of the facts could potentially do so in a manner inconsistent with the manner in which the jury determined those issues.

22. Third, there are suggestions in Chiro itself that the principle may extend beyond offences of the nature of that considered in that case (Chiro at [64]–[70] per Bell J).

23. Fourth, in Lane, a case where an extended unanimity direction was required, the Court concluded that it was not appropriate to apply the proviso because to do so was to decide a matter essentially for the jury and to usurp its functions (see the plurality at [49]; Gageler J at [54]). It may be said that in concluding for the purpose of sentencing that one or more of a series of acts constitutes an offence, the sentencing judge similarly was usurping the function of the jury.

18. Notwithstanding these considerations, I agree with Adamson J that the sentencing judge did not fall into error in sentencing in accordance with the approach in Cheung. First, the ratio of Chiro was confined to offences of the nature of those in question in that case. Second, in contrast to Chiro, there was in the present case no De Simoni problem in sentencing on the basis that one or more of the particularised acts occurred. Third, and most importantly, there was no inconsistency with the jury’s verdict in the sense of sentencing for a different or more serious offence than that which the jury found was committed. Fourth, the need for extended unanimity directions has been recognised in particular areas for a lengthy period of time and it has not been suggested that a different approach to sentencing is required in such cases. It is not appropriate for an intermediate appellate court to mandate a different approach.

19. In these circumstances, ground 1 of the grounds of appeal has not been made out.

The Crown appeal

26. I agree with Adamson J for the reasons given by her that the Crown appeal should be allowed, and the applicant be sentenced in the manner her Honour proposes.

27. The sentencing judge was correct in concluding that the offending was well within the mid-range, if not in the high range of offences of this type. It is an offence which strikes at the heart of the administration of justice in this country.

28. One of the objects of the Crown appeal is to lay down principles for the governance and guidance of courts having the task of sentencing convicted persons. Accordingly, this case will provide guidance to sentencing courts that offences of the present nature and seriousness warrant condign punishment.

Orders

29. I would make the following orders:

a   The conviction appeal

1. Refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 2(b) and (c).

   (2)   Otherwise dismiss the appeal.

b   Leave to appeal against sentence

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

c   Crown appeal

(1)   Appeal allowed.

(2)   Quash the sentence imposed in the District Court on 17 December 2020 and in lieu, sentence the respondent, Vanda Russell Gould, to a total term of imprisonment of 6 years, commencing on 11 May 2020 and expiring on 10 May 2026, comprising a non-parole period of 3 years and 6 months and a balance of term of 2 years and 6 months.

(3)   The respondent will become eligible for release on parole upon the expiry of the non-parole period on 10 November 2023.

30. DAVIES J: I have had the considerable advantage of reading the reasons of Adamson J in draft. I agree with those reasons and the orders she proposes, and would add the following.

31. The matter of significance resulting from legislation such as s 50 of the Criminal Law Consolidation Act 1935 is that an offence (the over-riding offence) is created which, in substance, consists of a number of individual offence, not all of which are the same as each other. As the plurality judgment in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 makes clear at [44], if the accused is convicted of the over-riding offence, the offender is sentenced by reference to each of the individual offences for which he or she would have been sentenced if those offences were separately tried.

32. It is easy to understand why, when it is not known which of the individual offences have been found by the jury to have been committed, it is necessary to sentence on the most favourable view to the offender in order to avoid offending the De Simoni principle. It is that principle which the plurality said at [44] was instructive.

33. The contrast with the present case is clear. There are no underlying offences. There are simply particulars providing various bases for the ways that the offence of attempting to pervert the course of justice has been committed. No particular is, in that sense, more serious than the other. Proof of any one of them is proof of the offence. Unlike in Chiro, there are no different offences or maximum penalties. Unlike in Chiro, each particular, if proved, contains the whole and not "an element" (Chiro at [42]) of the actus reus of the offence.

34. The result is that the sentencing judge is only required to sentence consistently with the jury's verdict, and not on the view most favourable to the offender. In that way, the present matter does not differ in principle from a manslaughter verdict which was capable of being reached on more than one basis.

35. ADAMSON J: Vanda Gould (the appellant) was tried on indictment of one count of attempt to pervert the course of justice pursuant to s 43 of the Crimes Act 1914 (Cth). The first trial ended in a hung jury. At the conclusion of the second trial, before Wilson SC DCJ, the jury returned a unanimous verdict of guilty. On 17 December 2020, Judge Wilson sentenced the appellant to a term of imprisonment of 3 years and 4 months with a non-parole period of 1 year and 8 months to commence on 11 May 2020.

36. The appellant seeks leave to appeal against his conviction and his sentence. The Crown appeals against the sentence on the single ground of manifest inadequacy. It is convenient to address the application for leave to appeal against conviction first.

Application for leave to appeal against conviction

37. The appellant abandoned the first ground of appeal in his notice of appeal filed on 28 July 2020 and sought leave in the course of the hearing of the appeal to amend ground 2(a). Ultimately, the appellant sought leave to rely on the following grounds of appeal against his conviction:

“2.   A miscarriage of justice was occasioned as a result of the directions given to the jury with respect to the evidence of Peter Borgas in that the trial judge:

a)    failed to direct the jury that they would need to be satisfied beyond reasonable doubt of the evidence of Peter Borgas in relation to any particular of the charge before they could accept that that particular was proved beyond reasonable doubt and in doing so left open to the jury a path of reasoning that permitted a finding of guilt based on the documentary material alone;

b)    directed the jury on the basis that Peter Borgas was a witness who was or who might have been involved in the alleged crime which assumed, contrary to the appellants case, that the offence was committed; and

c)    failed to direct the jury as to the real reasons for exercising caution before accepting the evidence of Peter Borgas which were that he was a person who:

i.    on any view of the matter, was prepared to lie on oath;

ii.    had given inconsistent accounts in relation to key matters; and

iii.    had a very strong motive to give false evidence in this case.”

[Emphasis added to indicate amendment sought, and granted, in the oral hearing.]

38. It is necessary to set out in some detail the background to, and the course of, the trial in so far as they bear on the grounds.

Background facts

39. The appellant, who was born in 1948, is a chartered accountant by training and qualification. He lived and worked in Australia. He was associated with several companies of which other people were directors and shareholders.

The role of Peter Borgas

40. Peter Borgas was a citizen of Belgium who qualified as a solicitor in England. He provided corporate services, including providing nominee directors and other corporate officers, from Neuchatel, Switzerland, where he lived with his wife, Winny, who also acted as a director of various companies to which Mr Borgas provided corporate services.

The share structure of the relevant companies

41. Mr and Mrs Borgas were directors of various companies associated with the appellant, including Chemical Trustee Ltd (C), Derrin Brothers Properties Ltd (D) and Bywater Investments Ltd (B). C and D were incorporated in England and B was incorporated in the Bahamas. The shares in each of these companies were ultimately held by either or both of JA Investments Limited (JA) and MH Investments Limited (MH) (the parent companies) through three nominee companies: Guardheath Securities Ltd (G), Lordhall Securities Ltd (L) and Anglore SARL (A) (the nominee companies). Both of the parent companies were incorporated in the Cayman Islands.

42. G and L were UK companies controlled by Lubbock Fine, a firm of chartered accountants in London, who provided accounting services to B, C and D. Hasmukh Vara was the principal point of contact. A was based in Switzerland and was operated by Mr and Mrs Borgas.

The articles of association of the parent companies

43. The articles of association of the parent companies were materially the same. Article 1(b) defined “the Appointor” as the “person or persons nominated as such by instrument in writing signed by the members and deposited at the Registered Office of the Company”.

44. Article 3 provided as follows:

“The subscribers to the Memorandum of Association and such other persons as are admitted to membership in accordance with these Regulations shall be members of the Company. No person shall be admitted as a member of the Company unless he is nominated in writing by the Appointor or, after the death of the Appointor, his legal personal representatives (and the survivors and survivor of them) at the date of his death but the Appointor shall not be entitled to nominate himself. Every person who wishes to become a member of the Company shall deliver to the Company an application for membership in such form as the Directors may require signed by the applicant and accompanied by the requisite nomination, and on receipt of same by the Company the applicant shall be admitted to membership.”

45. Article 81 provided that on a winding up of the company, each of the members would be entitled to US$100 but would have no further right to participate in the surplus assets of the company, which would be distributed in accordance with a written instrument signed by “the Appointor”.

46. There were documents which the Australian Taxation Office (ATO) obtained from the Cayman Islands which indicated that the appellant was the appointor of both the parent companies.

The taxation audit

47. In 2009 the ATO commenced an audit into offshore entities connected with the appellant; clients of his accounting firm, Gould Ralph; and associated entities. The audit included five companies incorporated in foreign jurisdictions: C, D and B, as well as Hua Wang Bank Berhad (H) and Southgate Investment Funds Ltd (S).

48. As a result of the audit the Deputy Commissioner of Taxation (the Commissioner) considered that B, C and D were residents of Australia within the meaning of s 6 of the Income Tax Assessment Act 1936 (Cth) because they were controlled by the appellant. On this basis, the Commissioner, in August 2010, issued assessments of income tax to B, C and D, as well as H and S, on the basis of profits derived from sales of shares in Australia (the ATO assessments). The total amount of tax assessed was in the order of $14.3m.

Commencement of proceedings in the Federal Court of Australia

49. On 16 May 2011, B, C and D commenced proceedings in the Federal Court to challenge the ATO assessments. They argued that Mr Borgas controlled them and that, as he was resident in Switzerland and was a citizen of Belgium, the ATO assessments ought be set aside. Although B, C and D accepted that the appellant provided advice and recommendations to their directors, including Mr Borgas, they contended that he did not exercise control over them.

50. Mr Borgas swore an affidavit on 7 February 2012 in the Federal Court proceedings in which he deposed that he was the sole shareholder of JA and MH and was, and had always been, the beneficial owner of those companies since they were established in the 1990’s. He deposed that he did not hold the shares in either company as a nominee or fiduciary. He acknowledged that the appellant provided him with advice and recommendations but denied that the appellant controlled the companies or directed their operation.

51. In about April 2013 (about a year after he had sworn his affidavit) it became apparent that Mr Borgas would have to come to Australia since his affidavit was to be relied upon by B, C and D and the Commissioner required him for cross-examination.

The Q & A documents and the preparation of Mr Borgas for cross-examination

52. From about April 2013, the appellant sent to Mr Borgas various iterations of a document which set out questions which he might be asked in cross-examination in the Federal Court proceedings, and the suggested answers to those questions (the Q & A document).

The June 2013 Q & A document

53. The first iteration of the Q & A document in evidence bore the footer “PB - April 2013 – Grouped – 20 June 2013” (the June 2013 Q & A document). It contained 305 questions and answers, which included the following:

No.	Question	Answer
Personal background/Association with Vanda Gould & John Leaver
1	Are you a wealthy man?	Yes, the net worth of my corporate group is more than CHF 100,000,000.
2	(a) Please tell us the names of the companies that you, personally, own? …	(a) [A], [JA] and [MH]. These companies control approximately 30 other companies. …
…
5	How wealthy would you say you were in 1980? How wealthy would you say you were in 1990? In 2010?	I don’t know. It is hard to say. In 1980 I was essentially a solicitor employer by J H Heinz in the UK and in 1983/84 by Fairburn & Kwok in Hong Kong. The value of my investments evolved exponentially, not from trading but capital growth …
6	As a matter of personal style, why do you conduct your business through so many different companies in all these different jurisdictions?	To limit liability and based on legal advice from Bishop & Sewell. It is best to have smaller holdings of a particular share as it is easier to sell a small parcel.
…
9	Please describe for this court how many cars you own.	I have the use of a BMW owned by Anglore.
…
64	Do you think the central management and control is in Australia?	No, no more than it exists in Malaysia with Normandy Nominees. I am too far away not to rely on local knowledge and an overview of what is happening. But I make all the major decisions concerning administration, particularly financial commitment.
…
C]/[D]/[B]/Russell Associates
…
107	… (b) Isn’t it the case that you administer [C] for [the appellant, and [D] for John Leaver?	… (b) I do not administer [C] for [the appellant] nor do I administer [D] for John Leaver.
…
[JA] and [MH]
…
185	Is it true that there exists a Power of Appointment for [JA]?	Yes
186	Who holds the Power of Appointment for [JA]?	Vanda [the appellant] presently holds that position.
187	What do you know about the Appointer’s powers?	It only becomes relevant in the event of my death as he potentially would be able to protect the interests of people who have loaned money to [JA] and the companies it controls.
188	Has [the appellant] ever used his Power of Appointment?	To my knowledge, never. But [the appellant] has discussed FCM issues with me from time to time.
…
Questions you don’t know the answers to
●   I would be guessing. ●   I have no present recollection. ●   Please ask my lawyers. ●   Please ask Hasmukh, he may know. ●   Your best answers are: - Yes - No - I don’t recall

54. The Australian Federal Police obtained a warrant to intercept the appellant’s telephone. Recordings of conversations were played to the jury and transcripts were marked for identification for use as an aide-memoire. As a consequence, the evidence of the conversations did not depend on Mr Borgas’s oral evidence.

55. On 6 June 2013, the appellant phoned Mr Borgas and told him that he needed to go through “these questions” to “try to get some practise [sic] on them”. It was common ground that the questions were those in one of the Q & A documents provided to Mr Borgas. A transcript of the call was admitted in the Crown case in the District Court.

56. On 9 July 2013, the appellant provided further questions and answers to Mr Borgas under cover of a letter which said:

“The critical thing to see is that your best answer will usually be ‘Yes’ or ‘No’. The more elaboration opens the door for more questions. In fact, it is better to say ‘I don't know’ or ‘I don't recall’ than to open the door. You are not required to guess. Sometimes you could say ‘I don't know - I would only be guessing.’

Please understand that the ATO wants to believe you are just a puppet for me. They are frustrated by the lack of documents to prove their case and they will lean on you. Keep saying ‘You have everything Both Hasmukh and I have provided everything.’ This is true and ultimately the Judge will get fed up with them hectoring you. In fact the ATO has many boxes of correspondence so it is all there, but the fact you were so involved as the correspondence shows destroys their puppet theory.”

57. On 24 June 2013, the appellant phoned Mr Borgas, who told him that an envelope had arrived that morning but that he had not had an opportunity to look at it. The appellant said, “when you’re ready that’s just a further updated you know story you can throw out the other ones.” The appellant referred to Mr Borgas’s cross-examination in the Federal Court as an “exam”.

58. On 1 August 2013, the appellant phoned Mr Borgas again to arrange a time to “give [Mr Borgas] some practice on the questions”. The appellant suggested that they have a “practice run” the following Thursday and asked Mr Borgas to “flick” through his “notes” in preparation.

59. On 8 August 2013 (which was the following Thursday), the appellant phoned Mr Borgas on Skype to rehearse the questions and answers by reference to the Q & A document (which is relevantly extracted above). Mr Borgas recorded the call on his dictaphone to help him remember what the appellant had told him. The following exchange occurred between them concerning the answer to question 1(a) (see above extract from Q & A document):

“BORGAS:   Do I have to learn these - these companies by heart so that I can recite them by heart?

GOULD:   No, no, no. Look at A. So basically you personally own. Now listen to the question. Most of the companies you don't personally own.

BORGAS:    No, because they are -- they are owned by JA Investments, MH Investments and they’re cojoint.

GOULD:   Correct. So basically but in terms of ones you personally own, look at A [(a)]. Look at answer A.

BORGAS:   Yes. It's JA and MH and I- I don't -I don't actually own Anglore. Ifs Winny who owns Anglore. But anyway, that's - - -

GOULD:   Okay. Well, that- that's fine. So, basically, we'll say the only ones I [Borgas] personally own are JA and MH.”

60. The following exchange occurred between them concerning the answer to question 5 (see above extract from Q & A document):

“GOULD:   Five. How wealthy would you say you were in nineteen eighty? And how wealthy would you say you were in nineteen ninety, two thousand and two thousand and ten?

BORGAS:   Yes. In, you know, this is - this is difficult to say. In nineteen eighty I was, essentially, a solicitor employed by HJ Heinz in the UK and then in eighty three, eighty four, by Fairburn and Kwok in Hong Kong. And the value of my Investments evolved ex-pon-ent-ialy (laughs) - I'm not quite sure what that means to be honest - - -

GOULD:   Yeah. It compounded it just - it just grew from nothing.

BORGAS:   Oh I see. Okay. Yeah.

GOULD:   Not from trading but capital growth.

BORGAS:   Yeah.”

61. In the discussion about question 6 (extracted above), the following exchange occurred:

“GOULD:   So basically by spreading the parcels around It, sort of, it actually doesn't distort the market That's actually the big advantage. It just sort of minimises market distortion. Whereas If you had everything in one parcel, the moment you start to sell, if you're a big shareholder, everyone knows and wonder what on earth's going on.

BORGAS:   Yes.

GOULD:   Whereas a small shareholder can sell and no one cares less.

BORGAS:   Yep.

GOULD:    So that's a - It's quite a powerful point.

BORGAS:   Yep. Okay. So small parcels do not have a distorting effect.

GOULD:   It- It's easier to sell a small - - -

BORGAS:   Yeah.

GOULD:   - - - a you know, and it doesn't distort the market because if you own twenty percent you've gotta keep the (indistinct) ... keep advising the market as you sell down.

BORGAS:   Yes.

GOULD:   … (indistinct) ... what on earth is going on [be]cause you actually destroy your ability to sell … (indistinct) … why shouldn't we get out. Those sorts of Issues.

BORGAS:   Yeah. So small parcels don't have a distorting effect on the - on the market. There's the reporting needed to the ASX and um, generally um, um easier to sell a small parcel.

GOULD:   Yep generally, generally you know, just slip it through without anything ... (indistinct) ...

BORGAS:   Yes.”

62. On 16 August 2013, the appellant rang Mr Borgas to tell him about an “updated sort of question list” which the appellant had sent to him.

63. On 13 September 2013, the appellant rang Mr Borgas and referred to further questions which he had sent the previous day. The appellant explained to Mr Borgas that the Commissioner’s case was that he (Mr Borgas) was a “complete idiot”, to which Mr Borgas responded, “Well of course I am.” The appellant proposed that they “have another go at it” on Monday or leave it until later in the week.

64. On 16 September 2013, the appellant rang Mr Borgas and told him that he had done a few more questions and answers for his consideration.

65. On 8 October 2013, Mr Borgas rang the appellant. The call included the following exchange:

“PB [Mr Borgas]:   Yes yeah and now the other thing … that was said ah and … finger wagging you and I are not to talk um (Laughing)

VG [the appellant]:   Forget that. So basically [be]cause otherwise how do you basically know anything?”

The hearing in the Federal Court

66. The Federal Court proceedings were heard by Perram J in September, October and November 2013. Ms Seiden SC, who appeared with Mr Hyde-Page for B, C and D in the Federal Court, read Mr Borgas’s affidavit of 7 February 2012.

Mr Borgas’s evidence on 10 October 2013

67. On 10 October 2013, Mr Borgas gave brief oral evidence in chief and between 10 and 15 October 2013 was cross-examined about decisions made by him in his capacity as a director of B, C and D.

68. On 10 October 2013, in his evidence in chief, Mr Borgas confirmed that he was the beneficial owner of JA and MH. He was asked about article 3 of the Articles of Association of JA and MH and, in particular, why there was an “Appointor” mentioned in article 3, to which he responded:

“[T]here are a group of companies … which hold money for third parties. Now, the appointor: his role is to step in in the event of my death so as to ensure that the parties who are owed money, or have other assets that are held on a nominee basis, receive those assets back in the administration of my estate, and the appointer is responsible for ensuring that nominee assets don’t go with my estate but go back to the party for whom they’re held on a nominee basis.”

69. Mr Borgas identified the appellant as the appointor for JA and MH. When he was cross-examined about the effect of article 3 (set out above), he asked for time “to consider and to consult”. Before the afternoon adjournment, Perram J directed Mr Borgas not to discuss his evidence as he remained under cross-examination. The transcript recorded that Mr Borgas “withdrew” at 4.20pm on 10 October 2013.

Mr Borgas’s consultation with the appellant after court on 10 October 2013

70. At 4.32pm on 10 October 2013 the appellant rang an unknown male who said:

“… things didn’t go so well this afternoon there’s a lot of things that PETER [Mr Borgas] needs to discuss with you I think.”

71. Mr Borgas came on the line and told the appellant that “they’ve gone for the jugular … on the question of the appointor in relation to JA and MH … and they’ve raised a couple of questions which I think um we we really need to sit together and discuss.” The appellant arranged to meet Mr Borgas at his hotel.

72. At 5.38pm, Mr Vara phoned the appellant, who reported that he was with “the young man” (Mr Borgas). Later, at 6.35pm, the appellant rang John Leaver, a stockbroker associated with B, C and D, to discuss what had occurred in court that day. The appellant told Mr Leaver that he had “worked through” the issue with “him” (Mr Borgas). Mr Leaver said to the appellant that he thought Mr Borgas’s “other answer in the sense of not remembering or not knowing it was quite a good answer as a stop gap sort of thing”, to which the appellant responded, “correct correct absolutely absolutely”.

Mr Borgas’s evidence on 11 October 2013

73. When the Federal Court resumed at 10.13am the following morning, 11 October 2013, Mr Fagan SC, who appeared for the Commissioner, asked Mr Borgas about article 3. Mr Borgas responded by referring to article 1(b).

74. Mr Borgas purported to withdraw the concession he had made the previous day that the appellant was the appointor and said that he was not aware of any document which complied with article 1(b). Mr Borgas described the appellant’s role as a “protector”, rather than an appointor.

The determination of the Federal Court proceedings

75. At the conclusion of the Federal Court proceedings, Perram J reserved his decision, which was published on 19 December 2014: Hua Wang Bank Berhad v Federal Commissioner of Taxation [2014] FCA 1392; (2014) 100 ATR 244. His Honour did not believe Mr Borgas’s evidence and found that B, C and D were controlled by the appellant. The judgment was referred to in the sentence proceedings but was not before the jury, as the Crown did not need to prove that the evidence had actually perverted the course of justice.

The charging of Mr Borgas and the appellant

76. On 15 October 2013, Mr Borgas was arrested at Sydney airport. There was a version of the Q & A document in his possession, dated 3 October 2013, which was seized. It was the Crown case that this was the final version of the Q & A document and had been used by Mr Borgas in the proceedings.

77. The appellant was also arrested on 15 October 2013. He was charged with tax evasion and money laundering offences. He was released on conditional bail on 17 October 2013.

78. On 13 May 2014, the Commonwealth Director of Public Prosecutions (the DPP) withdrew the charges against the appellant. On 15 September 2016 the appellant was charged with conspiracy to pervert the course of justice contrary to s 42 of the Crimes Act. On 4 April 2017 he was committed for trial in the District Court, following waiver of the committal hearing.

79. On 26 June 2017, the DPP filed and served an indictment charging the appellant with two offences: count 1, giving false testimony (s 35(1) of the Crimes Act); and count 2, attempt to pervert the course of justice (s 43 of the Crimes Act).

The first trial

80. The appellant’s first trial commenced before Norrish QC DCJ and a jury on 31 July 2018. Mr Dhanji SC appeared for the appellant. What occurred in the first trial is relevant only because the warning given in the second trial (which is the subject of ground 2(b)) derived from the warning sought on behalf of the appellant in the first trial.

81. On 13 August 2018, in the absence of the jury, Mr Dhanji confirmed that the appellant would seek a warning pursuant to s 165 of the Evidence Act 1995 (NSW), which relevantly provides:

“165   Unreliable evidence

(1)     This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence—

…

(d)     evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

…

(2)     If there is a jury and a party so requests, the judge is to—

(a)     warn the jury that the evidence may be unreliable, and

(b)     inform the jury of matters that may cause it to be unreliable, and

(c)     warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3)     The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4)     It is not necessary that a particular form of words be used in giving the warning or information.

(5)     This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

…”

82. Mr Dhanji identified various bases on which a warning was required: first, that Mr Borgas was a person who might reasonably be supposed to have been criminally concerned in the events giving rise to counts 1 and 2; that he was a person who admitted telling lies while on oath in other proceedings; and that he had obtained an undertaking from the DPP that he would not be charged. Judge Norrish proposed the following direction:

“[Mr Borgas’s] evidence for these various reasons must be scrutinised with great care because of the circumstances in which the witness has come forward. His evidence may be unreliable. He may well be trying to exculpate himself from the relevant events to minimise his part by fabricating the role or exaggerating the role of others.

Further, he may fabricate or exaggerate allegations out of spite, revenge or antipathy towards the accused or for reasons which are not known. There may be other reasons for him to falsely implicit [scil. implicate] the accused that are not readily apparent or more importantly incapable of exposure. A person who wishes to shift blame will falsely implicate another for his own benefit may be persuasive and be capable of pretending that they are truthful in their recounting of events. You need to scrutinise his evidence with great care, considering any evidence independent of him that supports his version of events.”

83. Mr Dhanji also sought a direction that it would be dangerous to convict based on Mr Borgas’s evidence alone, which the trial judge refused to give because the evidence of Mr Borgas was supported by other evidence.

84. Judge Norrish gave the following direction under s 165 of the Evidence Act:

“In respect of the evidence of Peter Borgas, he is a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to [the charge]. He is also an informer and a person who admits telling a number of lies whilst under oath in other proceedings.

Mr. Borgas has been given an undertaking that he will not be prosecuted for offences admitted by him about which he gives evidence in these proceedings, except in respect of the falsity of his evidence.

I warn you that [Mr Borgas’s] evidence for these various reasons must be scrutinised with great care. Because of the circumstances in which the witness has come forward his evidence may be unreliable. He may well be trying to exculpate himself from the relevant events, or minimise his part, by fabricating the role or exaggerating the role of others. Further, he may fabricate or exaggerate allegations against the accused for reasons which are not known to the accused or his legal advisors. There may be other reasons for him to falsely implicate the accused that are not readily apparent or, more importantly, incapable of exposure. The person who wishes to shift blame or falsely implicate another for his own benefit may be persuasive and be capable of pretending that they are truthful in their recounting of events.

These warnings are given not because of any personal views held in relation to Mr. Borgas. They are given because experience of the Courts has been over the years that in appropriate cases juries should be warned as to matters that may render particular evidence or evidence from particular witnesses unreliable and/or require special care in its consideration.”

85. On 13 August 2018, Judge Norrish directed a verdict of not guilty in respect of count 1. On 23 August 2018, the jury was discharged as it was unable to reach a unanimous verdict on count 2.

The second trial

86. On 18 February 2019, the DPP informed the appellant that she had determined to proceed to a retrial of the appellant on a single count (which had formerly been count 2) which charged that between 1 January 2012 and 20 November 2013 the appellant attempted to pervert the course of justice in relation to the Federal Court proceedings between H, C, D, B, S and the Commissioner, being a judicial power of the Commonwealth.

The particulars

87. The particulars of the charge were that between about April 2013 and 15 October 2013:

1. The appellant encouraged Mr Borgas to assert or confirm in evidence that he made decisions for C, D and B on the appellant’s advice but not at his direction.

2. The appellant encouraged Mr Borgas to say that he was the beneficial owner of C, D and B.

3. The appellant encouraged Mr Borgas to assert or confirm that he was the beneficial owner of JA and MH.

4. The appellant encouraged Mr Borgas to assert or confirm that he, not the appellant, controlled and managed the affairs of C, D and B.

5. The appellant offered Mr Borgas an unspecified inducement to give evidence.

88. The Crown contended that proof of any one of the particulars would suffice for proof of the charge.

The Crown case

89. The trial commenced before Wilson SC DCJ on 29 October 2019. The Crown case comprised documentary evidence, which included summaries pursuant to s 50 of the Evidence Act; business records; material obtained from the Cayman Islands, recordings of telephone intercepts; and oral evidence.

90. Mr Borgas was the principal Crown witness and was called on 29 October 2019 immediately after opening addresses and the tender of agreed facts and a s 50 summary. He remained in the witness box until the eleventh day of the trial. His evidence in chief was completed on the seventh day (7 November 2019). He was cross-examined from 7 November 2019 until 13 November 2019. There was no re-examination. The only other witness in the Crown case was Phyllip Chapman, a Federal Agent, through whom documents associated with the investigation (such as s 50 summaries) were tendered.

91. Mr Borgas was asked about documents in the Crown’s tender bundle (which was marked Exhibit C). The documents in Exhibit C included his affidavit in the Federal Court proceedings (referred to above). Mr Borgas gave evidence in chief that this affidavit “contain[ed] lies” which he told because the affidavit said what he believed the appellant wanted him to say. He said that it became apparent in about April 2013 (about a year after he had sworn his affidavit) that he would have to come to Australia (from Switzerland) to be cross-examined in the Federal Court proceedings. He gave evidence that he was prepared to allow himself to be induced to give false evidence.

92. Mr Borgas’s understanding was that “it was decided” that the best way of preparing him to give evidence was to send him (by post) “a Q & A document which set out the evidence that [he] was to give … in the hope that that would defeat the … claim of the Tax Office”. His evidence was that he received no more than six or seven versions of the Q & A document between April and October 2013. His usual practice was to throw away the previous version when he received a subsequent version so that he was “only looking at one version at a time”.

93. The documents in Exhibits C and D were tendered by the Crown to show the falsity of the matters in particulars (1) to (4). It is unnecessary, for present purposes, to set out all of the Crown’s evidence on each particular. It is sufficient to note that the documents relied on in support of particular (1) (that to the extent to which Mr Borgas purported to make decisions for C, D and B he did so at the appellant’s direction) included documents in the following categories:

1. Written communications from the appellant to Lubbock Fine instructing them as to investments by B, C, or D or informing them that they would shortly be receiving instructions from Mr Borgas to effect transactions on behalf of B, C or D;

2. Written communications from Mr Borgas or Mr Vara to the appellant when decisions needed to be made by B, C or D;

3. Written communications from Mr Borgas to the appellant forwarding transactional documents or informing him about transactions entered into by B, C and D (which, on the Crown case, were inconsistent with his purported role of advising on share purchases or Australian accounting matters);

4. Documents which evidenced the appellant’s involvement in routine matters concerning B, C and D, including consolidation of shareholdings and changes of address on company registers;

5. Minutes of meetings of B, C and D which were attended by Mr Borgas and his wife which lacked any detail about the transactions entered into by the companies;

6. Documents which showed that the audited accounts of C and D were not finalised until the appellant approved them;

7. The frequency with which documents concerning B, C or D contained the footer “Van.doc” or “v.doc”, which was associated with the appellant;

8. References in communications between the appellant and Mr Borgas to “the mutual client”, which, on the Crown case, was a reference to the appellant but was designed to obscure his involvement;

9. Intercepted telephone communications in which the appellant gave Mr Borgas directions about transactions to which B, C, and D were parties; and

10. The circumstance that A’s business was to provide nominee directors and shareholders.

94. The evidence to establish particular (5) was Mr Borgas’s oral evidence as to statements made to him by the appellant, which was not supported by any documentary evidence.

95. The Crown case closed on 13 November 2019. There was no case for the appellant.

The Crown address

96. Madam Crown commenced her address on 15 November 2019. She told the jury that the Crown relied on the evidence of Mr Borgas as well as the documentary evidence and urged the jury to consider all of the evidence, as is evident from the following extract from its address:

“Mr Borgas has come to this Court and has given evidence before you to assert that he’s telling the truth in this trial and that he lied in the Federal Court proceedings. It’s a matter for you to determine whether to accept Mr Borgas’ evidence that he lied in the Federal Court at the encouragement or inducement of the accused. You heard cross-examination that Mr Borgas has a motive to lie in this Court and that the undertaking itself provides him with the motive to lie. The question is, in this Court was Mr Borgas telling the truth or was he throwing the accused under the bus in order to get a benefit to himself. In order to get himself off potential charges.

I anticipate a submission from the defence that you should find that Mr Borgas lied in this Court and that he had a specific motive to lie and that was to protect himself, to give himself a benefit. As I said in my opening address you must be cautious when you’re assessing Mr Borgas’ evidence. You will no doubt hear submissions with some force from the defence in relation to potential inconsistencies in Mr Borgas’ evidence, between what occurred in his police interview, in the Federal Court proceedings, in this trial, and I anticipate a submission from the defence that Mr Borgas lied to you.

The Crown does not hide from the fact that Mr Borgas has lied. That he lied in the Federal Court proceedings. Now when you think about it Mr Borgas has lied somewhere. Because the two don’t sit together. In the Federal Court proceedings Mr Borgas gave evidence that he was the beneficial owner of Chemical Trustee, Derrin Brothers Bywater, JA and MH, and that he controlled and managed those companies. In this Court Mr Borgas has said that those statements were lies and in this Court he has said to you that he did not control those companies and that he was not in reality the beneficial owner of JA, MH and the three companies that fall underneath those parent companies, Chemical Trustee, Derrin Brothers and Bywater.

You can see the two don’t fit together. Either his evidence in the Federal Court is a lie or his evidence here is a lie. They can’t both be the truth. It is a difficult task that you face, trying to figure out what is a lie and what is the truth. I don’t envy you. But what the Crown says in this case, and this is why I come back and why I said actually on the Crown’s case the three most important documents are the Q & A document, the Skype recording, and the telephone intercepts, is because the Crown does not rely solely on Mr Borgas’ evidence in this trial.

What the Crown submits is that you can look at all of the other evidence in the Crown case. The answers given in the question and answer. How the accused coached Mr Borgas in the Skype recording, and also all of the documents and exhibits say it’s going to be a little tiresome but I’m going to have to take you through every single one of those documents, for the reason that there are still some documents in exhibit C which you haven’t seen yet, the reason being that Mr Borgas was not a party to some of the correspondence, and it’s the Crown’s case that when you consider all of the evidence together, including the objective evidence, the documents which were actually sent, the Articles of Association of the companies, what the accused actually said himself in telephone intercepts, that you will conclude that Mr Borgas was in fact telling the truth in this Court when he said he lied in the Federal Court and that he lied in the Federal Court as a result of the accused encouraging him to give false or misleading evidence about these matters in the Federal Court proceedings.”

97. Madam Crown submitted to the jury that “[o]n paper, it does look like Mr Borgas was the person controlling the companies”, before proceeding to take the jury through the documentary evidence which indicated that it was the appellant and not Mr Borgas who controlled them. She told the jury that the documents in Exhibit C demonstrated that the appellant was intimately involved in the transactions of B, C, D, JA and MH and was giving instructions directly to Lubbock Fine over a period of years. She also relied on the Q & A documents and the dictaphone recording of the Skype conversation between the appellant and Mr Borgas in which they went through the questions and answers in preparation for Mr Borgas’s cross-examination in the Federal Court.

98. Madam Crown returned to the topic of Mr Borgas’s evidence at the conclusion of her address and said:

“It’s the Crown’s case, now having taken you through, in quite some detail, exhibit C and the telephone intercepts and the Skype recording and the Q & A document, together with Mr Borgas' evidence in this court that you can be satisfied that when Mr Borgas said to you in this court that he is not the beneficial owner of JA, MH, Chemical Trustee, Derrin Brothers and Bywater that he was telling you the truth and that he did lie in the Federal Court.

And then when Mr Borgas told you that he did not control those companies that he was telling you the truth and he did lie in the Federal Court. And you can take comfort from that from the objective evidence. The documents in exhibit C and the telephone intercepts. But as I have to remind you again, this case is not about what Mr Borgas thought or didn't think, this case is about whether or not the accused intended to attempt to pervert the course of justice.”

The defence closing address

99. The appellant’s counsel at the second trial, Mr Smith SC, also emphasised the importance of the appellant’s belief and told the jury in closing address, “when you get down to the nitty-gritty what we’re really concerned with is the personal belief of Mr Gould.”

The directions sought and given in the summing up

The directions sought

100. The argument on proposed directions took place in the absence of the jury at appropriate junctures throughout addresses as well as after the close of addresses before the summing up.

101. Before the Crown address, the appellant’s trial counsel sought a direction in the summing up that the jury would have to accept Mr Borgas’s evidence beyond reasonable doubt before it could convict on the sole count. As referred to above, such a direction had also been sought (and refused) at the first trial. In this trial this request was referred to as a Murray direction, so named because it derives from R v Murray (1987) 11 NSWLR 12 where Lee J said at 19E:

“In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.”

102. On 15 November 2019 the appellant’s trial counsel set out the directions sought in writing (MFI #31). He pressed the appellant’s request for a Murray direction:

“As indicated in open Court the defence submits that a direction requiring the jury to be satisfied of his evidence beyond reasonable doubt, before a verdict of guilty could be returned, should be given. The Crown opposes this direction and the argument has been left in abeyance.”

103. Also in MFI #31, the appellant’s trial counsel contended that the same direction under s 165 of the Evidence Act as had been given by Judge Norrish in the first trial ought be given and said:

“A section 165(1)(d) warning would be given comprising the mandatory requirements set out in section 165(2) and emphasising that the warning is given in the ‘context of the experience of the Courts’. The direction that was given in the last trial is attached to this document.

Further to it:

-   The direction should incorporate a specific part that explains that should the witness not comply with his undertaking he is at risk of it being withdrawn and prosecuted for serious offences.

-   The Bench book direction at [4-385] may be of assistance generally in this area and has also been attached to this document.”

104. On 18 November 2019, the Crown responded in writing to MFI #31. It agreed that the direction under s 165 of the Evidence Act should follow the script in the Criminal Trial Courts Bench Book (the Bench Book), including as to Mr Borgas’s “motive to lie” (as set out in the Bench Book at [3-625] at [1]-[2]).

105. His Honour circulated a draft summing up to the parties and also asked the parties to exchange summaries of their cases and provide the summary to the Court.

106. The trial judge’s draft summing up contained the standard directions concerning s 165 of the Evidence Act. It also contained the following paragraph:

“Your task is to consider that evidence and to determine whether you are nevertheless satisfied that Mr Borgas’ evidence is true. The Accused bears no onus to prove a motive for Mr Borgas to lie. Additionally, a rejection of the motive asserted by the Accused does not necessarily mean that the evidence of Mr Borgas is truthful.”

107. In response to this draft the appellant’s trial counsel sought to substitute for the last sentence, the following:

“Further, even if you were not to find that Mr Borgas was motivated to falsely implicate the accused by reason of his desire to gain the benefit of the undertaking, this does not necessarily mean that the evidence of Mr Borgas is truthful.”

108. The appellant’s trial counsel reiterated his request for a Murray direction in accordance with [3-610] of the Bench Book and said:

“The Crown case is based largely on the evidence of a single witness, Mr Borgas. Accordingly a direction in the terms outlined at Benchbook [3-610] (which is attached) should be given to the effect that, unless they are satisfied beyond reasonable doubt that the Mr Borgas is both an honest and accurate witness in the account he has given, the jury cannot find the accused guilty.”

109. The Crown responded by identifying the several documents on which it relied, in addition to the evidence of Mr Borgas. It submitted:

“The Crown submits that the defence submissions on the need for a Murray direction proceed on a misconception of the Crown case. The Crown case is not based largely on the evidence of Mr Borgas. The mere fact that Mr Borgas is the principal witness called by the Crown does not mean that his evidence is the essential evidence in the Crown case. As indicated in closing address, the Crown places greater reliance upon the documentary evidence, the Skype recording and the telephone intercepts than that of Mr Borgas. It cannot be said that Mr Borgas’ evidence is uncorroborated, nor that it is an essential link in the chain of reasoning, with the exception of the particular relating to the inducement.”

110. On 21 November 2019, when Mr Smith had finished his closing address, the trial judge, in the absence of the jury, returned to the question of the directions to be given in the summing up. Mr Smith confirmed that he was no longer pressing a Shepherd direction (arising from Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56) but was still pressing a Murray direction. His Honour expressed the tentative view that a “version of the Murray direction ought be given.” When the Crown asked what the trial judge had in mind, his Honour answered that he did not know. The Crown opposed such a direction on the basis that the Crown case did not substantially depend on the jury accepting Mr Borgas as a reliable witness.

111. Before adjourning on 21 November 2019, his Honour indicated that a draft direction would be prepared and emailed to the parties. The following morning, in the absence of the jury, there was further discussion about the directions. His Honour marked the summaries of the cases prepared by the parties (to which there had been no objection by the other party). His Honour then provided the final version of the summing up and indicated that he would say, after giving the s 165 warnings in respect of Mr Borgas’s evidence:

“14.5   That is not to say that you cannot convict the Accused upon the evidence of Mr Borgas. Clearly you are entitled to do so, but only after you have given careful consideration to the evidence. In considering the evidence of Mr Borgas and whether it does satisfy you of the Accused's guilt, you must also turn your mind to whether Mr Borgas' evidence is supported by other evidence.

…

14.7.    In respect of particular 5 (the inducement), unless you accept the evidence of Mr Borgas beyond a reasonable doubt, you cannot convict the Accused.”

112. Mr Smith did not wish to be heard further. The Crown accepted that a Murray direction was appropriate with respect to particular (5) as this particular depended solely on    Mr Borgas’s evidence.

The summing up

113. The trial judge provided the jury with a document which set out the elements of the offence (the elements document), which had been agreed between the parties in advance of the summing up. It relevantly set out the charge and the particulars relied on (set out above) and continued:

“The elements of the offence are as follows:

1.    the Accused attempted to pervert the course of justice in relation to a judicial power;

2.    the Accused intended to pervert the course of justice in relation to a judicial power; and

3.    the judicial power is the judicial power of the Commonwealth.

DEFINITIONS:

A.    To attempt to do something, one must intentionally do an act or acts, which is, or are, not merely preparatory towards the commission of a particular objective. A person can commit this offence even if it is impossible to commit the offence or the actual offence was committed. In this context, conduct will amount to attempt if the act has the tendency to pervert the course of justice.

B.    Intention is concerned with the belief of the Accused as to the existence of a particular circumstance. A person intends to do something if he or she means to bring about a particular outcome.

C.    The purpose of the acts or conduct constituting the offence must be intended to pervert, or deflect, the administration of public justice. That is, intended to divert the Federal Court from the proper determination of the issues required to be considered by it and having the tendency to do so. Here it is alleged that the Accused intended by his conduct to prevent the Federal Court from having truthful evidence from Mr Borgas.

D.    The relevant conduct must be established to be directed at the determination of issues by a court exercising jurisdiction in relation to matters concerned with the law of the Commonwealth or in the course of proceedings in a federal court.”

114. The trial judge summarised the Crown case substantially in accordance with the draft provided by the Crown (to which the appellant’s trial counsel took no exception) and said:

“25   I will, however, give you a summary of their respective cases and this is a summary which they have agreed upon. That is, separately have agreed upon as being a general statement as to what are their respective cases.

26    The Crown, first of all, submitted that you would be satisfied beyond reasonable doubt of particulars 1 through 5 and you are familiar with those. In respect of particulars 1 through 4, the Crown submitted that you would be satisfied the accused was involved in preparing the Q and A documents, provided Mr Borgas with the Q and A documents, practised his answers in Skype calls, encouraged Mr Borgas to learn the answers in the Q and A documents and gave advice on how to answer questions in the Federal Court proceedings. The Crown submitted that you would be satisfied that through that process the accused encouraged Mr Borgas to give certain evidence in the Federal Court as set out in the particulars 1 through 4 of the elements document.

27    The Crown relies upon Exhibit F, that is, the Skype recording and you will receive that in the form of a disc which you will have the facility to play in the jury room. Exhibit G, again, that is a disc of telephone intercepts which you will have access to play it in the jury room and Exhibit L which were the transcripts of the telephone intercepts formally known as MFI 11 now known as Exhibit L.

…

29.   … I have just said the Crown relied upon Exhibit F, that is, a Skye recording, Exhibit G, Exhibit L, the telephone intercepts, the Q and A documents themselves, as well as the evidence of Mr Borgas. The Crown further submitted that you will be satisfied that the evidence that shows the accused encouraged Mr Borgas to give evidence that was false or misleading to the accused’s knowledge. The Crown took you through the documents in Exhibit C including the transaction documents as well as Exhibit A, that are the Agreed Facts. Exhibit B is the s 50 summary in relation to the companies. You will recall there were two s 50 summaries, one was in relation to the companies, in fact, there were three, the others are in relation to minutes of meetings, that is Exhibit D and the third was in relation to a summary of the telephone warrants (Exhibit K).

30    But just returning, the Crown took you through the documents in Exhibit C including the transaction documents and you will recall that the Crown referred to the various transactions in the course of her address as well as Exhibit E the agreed facts, Exhibit B the s 50 summary, Exhibit D the summary again in relation to the minutes of meeting and Exhibits G and L being, the telephone intercepts. The Crown also relies upon the evidence given by Mr Borgas in this Court.

31    In respect of particular 5, that is, the inducement, the Crown submitted that you would accept Mr Borgas’s evidence that the accused said to him, ‘You say what we want you to say and you will be looked after.’”

115. The trial judge summarised the defence case in accordance with the draft provided by the appellant’s trial counsel. His Honour identified documents on which the defence relied as relating to the appellant’s “personal belief at a time when he was acting as a litigation agent for the companies involved in the Federal Court proceedings.” His Honour also reminded them that the defence case was that Mr Borgas had lied to them about “fundamental matters”.

116. The trial judge directed the jury that they needed to be unanimous about at least one of the particulars in the elements document.

117. The trial judge gave the following warnings about the evidence of Mr Borgas, as had been canvassed in the discussion referred to above in the absence of the jury. It is necessary to set them out in full as they are the subject of appeal ground 2(b):

“57    The following two directions relate to Mr Borgas and it will become apparent why I need to give you these directions. The first arises because he is a witness who might reasonably be supposed by you to have been criminally involved in some of the events that took place. The Crown relies upon the evidence of Mr Borgas. The Crown also asserts that Mr Borgas is a person who was or might have been involved in the alleged crime[, that is,] the giving of the false evidence.

58    The law requires me to give you certain warnings and directions concerning his evidence. They are given in every case in which the Crown relies upon the evidence of a witness who has or who might have been involved in the alleged crime.

59    The direction is not given in this case because I have formed any view concerning the evidence of Mr Borgas. It is not my role to do that, that is your job as members of the jury and judges of the fact. The need to give the direction which I am giving arises because the Courts have, over the years, a great deal of experience concerning the reliability of evidence given by a witness who was or who might have been involved in the alleged crime. That experience has shown that the evidence given by such a witness may be unreliable. I do not intend to suggest, as I have stated, that such evidence is always unreliable.

60    My purpose in giving you these directions concerning Mr Borgas is only to warn you that the evidence of such a witness may be unreliable and, for that reason, you must approach that evidence with considerable caution in the way in which I will outline shortly.

61    There are many reasons why the evidence of such a person may be unreliable, and this is not intended to be a full list of any such reasons, but possible reasons are or include the following.

62    First, it is only natural, you might think, that a person who was or might have been involved in the alleged crime may want to shift the blame from himself or herself onto others and to justify his or her own conduct. In the process, the witness may construct untruthful stories which tend to play down his or her own part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people.

63    Secondly, persons who are or might have been involved in alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility as well as to ensure that, in this case, Mr Borgas is not prosecuted for his involvement in the alleged offence.

64    Thirdly, there may be other reasons or motives why false evidence may be given or has been given by such a witness. It is not for the accused to establish what they might be. Remember that the Crown has to prove the essential ingredients of the offence, the essential aspects of its case and the accused does not have to prove anything.

65    Fourthly, experience has shown that once such a witness has given a version to the police which incriminates or blames another person, the accused, he or she may feel locked into that version even if it contains inaccuracies or even if it were substantially untrue.

66    Fifthly, in relation to the evidence of Mr Borgas the evidence establishes that Mr Borgas agreed to participate in an interview with the police, the Australian Federal Police on 2 December 2013 on the understanding that:

1.    nothing he said in that interview could be used against him in relation to criminal proceedings, and

[Footnotes omitted and emphasis added.]

227. Bell J, who wrote separately, described Cheung, at [70], as “an illustration of a common category of case in which the jury’s verdict does not imply a finding on an issue which is nonetheless highly material in sentencing.” In Cheung, as her Honour explained at [70], “[t]here was one importation of heroin and issue was joined on Cheung’s knowing involvement in it.” When addressing C’s conviction under s 50(1) of the CLC Act, her Honour said:

“[71]    By contrast, the offence with which the appellant was charged was constituted by the commission of more than one act of sexual exploitation over an interval of not less than three days. The acts on which the prosecution relied to establish the offence were particularised in the Information and issue was joined as to the commission of each. The verdict establishes conclusively that the appellant engaged in the sexual exploitation of AB by the commission of at least two of the particularised acts over a period of not less than three days, and no more. To sentence the appellant on the basis that he committed all of the particularised acts upon which issue was joined is to deprive the requirement of consistency with the verdict of practical content.

[72]    … The principles enunciated in De Simoni and Kingswell cannot stand with acceptance of the respondent’s submission that, absent knowing which acts of sexual exploitation were found by the jury to have been proved, it was open to the judge to sentence the appellant upon her assessment that he engaged in all of them.”

[Emphasis added.]

228. Her Honour also took into account the circumstance that the jury had been directed that they could find C guilty if they were satisfied that he kissed the complainant in circumstances of indecency on more than one occasion during the relevant period (no less than three days) and concluded that, since the jury was not asked which acts had been found proved (and it was too late to do so, the jury having been discharged), the trial judge was obliged to sentence on the basis of the acts of indecent kissing (they being the least serious of the underlying offences).

Hamra v The Queen

229. Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38 (Hamra) was heard and decided at the same time as Chiro. In Hamra, there had been a trial by judge alone. The trial judge had found that it was not possible, from the generalised evidence of the complainant, to identify two or more acts of sexual exploitation by the accused (H). Accordingly, at the close of the Crown case, the trial judge directed a verdict of acquittal on the basis that there was no case to answer. The South Australian Court of Criminal Appeal allowed the appeal. The High Court unanimously (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) dismissed H’s appeal. It held that s 50(4) of the CLC Act did not require the occasions to be particularised other than as to the period and the conduct. The complainant’s evidence, taken at its highest, demonstrated that there was a case to answer in respect of the alleged acts of sexual exploitation during the period when the complainant was under 17 years of age. The Court accepted that, while a lack of specificity might make it difficult for a jury to agree on two or more of the same acts, there was a possibility that the jury might agree that all of the alleged acts occurred, which would be sufficient for a conviction. Thus, there was a case to answer.

DL v The Queen

230. In DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, the High Court considered whether a conviction following a trial by judge alone could stand when the trial judge’s reasons failed to identify two or more acts of sexual exploitation upon which the conviction was based. The majority construed the trial judge’s reasons as amounting to an acceptance of the complainant’s evidence and therefore a finding that all of the alleged acts had been committed. The finding of guilt was therefore supported on the basis postulated by the High Court in Hamra.

Subsequent consideration of Chiro

231. Chiro was decided on 13 September 2017. It is noteworthy that it has been cited almost exclusively in the context of offences such as s 50(1) of the CLC Act or like provisions. It was referred to in H’s application for special leave to appeal (which led to the appeal being heard together with C’s appeal). It was also referred to in the special leave application in DL v The Queen (referred to above).

232. Chiro was cited by the High Court in KMC v Director of Public Prosecutions (2020) 267 CLR 480; [2020] HCA 6 (KMC) where it was noted by the Court (Kiefel CJ, Bell, Gageler, Nettle, Gordon and Edelman JJ) at [9] that, shortly after Chiro was handed down, the South Australian Parliament had purported to amend s 50 of the CLC Act with retrospective effect: s 9 of the Statutes Amendment (Attorney-General’s Portfolio No 2) Act 2017 (SA) (the Amending Act). The Full Court of the Supreme Court of South Australia held that s 9 of the Amending Act was invalid as contrary to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 61; [1996] HCA 24: Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; (2018) 275 A Crim R 400; see, for a helpful discussion of the legislative history of these provisions and the relevant decisions, including Chiro, Marie Shaw SC and Ben Doyle, “The Age of Statutes and its intersection with Fundamental Principles: an Illustration” (2019) 40 Adelaide Law Review 353.

233. The High Court decided that the trial judge had neither asked the jury in KMC’s trial what acts it had found to be proved nor sentenced him on the basis of the most favourable version of the facts (that the two least serious underlying offences had been made out). However, the Court found that s 9 of the Amending Act did not apply in terms because the sentencing judge had not in fact made findings of the underlying offences beyond reasonable doubt (as required by the terms of s 9). Thus, the Court found that s 9(1) of the Amending Act was not engaged. Accordingly, the appeal was allowed and the matter was remitted to the trial judge so that KMC could be sentenced according to law.

234. Chiro has, so far as my research has indicated, not been cited in other any applications for special leave to appeal to the High Court.

235. Chiro has been cited by Nettle J, extra-judicially, in a paper entitled, “The Jurisprudence of the High Court of Australia on Sentencing” for the National Judicial College of Australia Conference, “Sentencing: New Challenges”. Nettle J summarised the facts and ratio of Chiro and concluded, at page 38:

“The application of Chiro to the offence of persistent sexual exploitation has since been abrogated by retrospective legislation. But the principle is of broader application than that.”

236. The footnote to this statement said:

“See and compare Kalbasi v Western Australia [(2018) 264 CLR 62; [2018] HCA 7].”

237. It was common ground in this Court that Kalbasi v Western Australia did not bear on the operation of Chiro. Extra-judicial statements have no authoritative effect.

238. At [1-445] of the Sentencing Bench Book (NSW), the authors said:

“In Chiro v The Queen [2017] HCA 37, the Court held that the approaches taken in Cheung v The Queen (2001) 209 CLR 1 and R v Isaacs (1997) 4 NSWLR 374 were not intended to govern sentencing for a persistent sexual offence charge.”

239. Chiro has been cited in passing by this Court in Kaddour v R [2017] NSWCCA 294 at [4] (Leeming JA); Hassan v R [2018] NSWCCA 213 at [251] (Bathurst CJ, Johnson and Price JJ agreeing) and Ewan v R [2020] NSWCCA 85 at [38] (Macfarlan JA, R A Hulme and Button JJ agreeing) and by the Land and Environment Court of New South Wales: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [152] (Pepper J). It has been applied in the District Court to sentencing for an offence of persistent sex abuse: R v Ocek [2018] NSWDC 349 at [72] (Tupman DCJ) and considered by this Court in the same context: Burr v R [2020] NSWCCA 282 at [102]-[103] (Johnson J, Leeming JA and Rothman J agreeing).

240. The only occasion, as far as research has revealed, on which Chiro has been applied in support of the broader proposition for which the appellant contended was in R v Gregg, in which Lakatos SC DCJ imposed a sentence for two counts of falsification of books. The first count had two particulars. At [86], his Honour said that the principle in Chiro applied “given the way the case was left to the jury”. However, his Honour also found that the differences between the two particulars were not material to the objective gravity, having regard to the size of the company (Leighton Holdings). Although there was an appeal to this Court against Gregg’s conviction (Gregg v R [2020] NSWCCA 245; (2020) 355 FLR 348), there was no appeal against sentence. For the reasons which follow, I regard the approach taken by the sentencing judge in R v Gregg as anomalous and wrong.

The effect of Chiro

241. What Chiro established is that, for offences such as s 50(1) of the CLC Act, where an omnibus offence depends on the proof of underlying particulars which themselves constitute single offences of different types, with different maximum penalties, the sentencing judge must sentence the offender on the basis of the most favourable version of the facts (that is proof of the least serious underlying offences) unless the jury has identified the particulars (referable to underlying offences) of which it was satisfied beyond reasonable doubt (the Chiro principle). The reasons for this are that the underlying offences constitute the actus reus of the omnibus offence and the offender is to be sentenced by reference to the gravity and maximum penalty of the underlying offences, albeit that the conviction is for the omnibus offence. To do otherwise would risk breaching the De Simoni principle.

242. What Chiro did not establish (and which did not arise) is that, in all circumstances where an extended unanimity direction is required and the jury has not been asked as to the basis of its verdict, the offender is to be sentenced on the basis of the most favourable view of the facts.

243. If the appellant’s argument in the present case is accepted, it would extend the Chiro principle to all offences where an extended unanimity direction is required, including the following:

1. where there is more than one act relied upon by the Crown as constituting an unlawful and dangerous act for the purposes of manslaughter: R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [77] (Maxwell P, Vincent JA agreeing), approved in Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [34] (Kiefel CJ, Bell, Keane and Edelman JJ);

2. where the Crown case on manslaughter has gone to the jury on the basis of gross negligence and unlawful and dangerous act: R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198;

3. where the offence is culpable driving causing death and the factual alternatives are gross negligence or intoxication: R v Beach (1994) 75 A Crim R 447; and

4. where the offence requires the Crown to prove that the financial advantage was obtained by intentional deception, which is said to be constituted by the deliberate non-disclosure of assessable income for a particular year, the jury must be directed that they need to be unanimous as to at least one of the misrepresentations and that it resulted in the obtaining of the financial advantage (by reason of the income not being assessed): Pratten v R [2014] NSWCCA 117 at [53]-[54] (Meagher JA, Fullerton and Hamill JJ).

244. There are statements by the High Court in Chiro which could be read as applying to cases where an extended unanimity direction is required, whether or not the subject of that direction is an underlying offence in the context of an omnibus offence. However, the ratio of the decision appears from [44] of the plurality’s reasons. Their Honours were careful to say that it was for the reason that the sentence to be imposed was to be determined by reference to the underlying offences, that it was for the jury at trial, and not the judge on sentence, to determine what the underlying offences were. If the jury did not do so, then the principle in De Simoni applied, as explained in Chiro (by the plurality at [44] and Bell J at [72]) that is, the offender would have to be sentenced on the most favourable basis (the two least serious offences) to guard against the possibility that the offender would be sentenced for a crime which was more serious than that for which he had been convicted by the jury.

245. To extend the Chiro principle beyond offences such as those in s 50 of the CLC Act, would be a significant extension of the law as it is presently understood and is not authorised by the ratio in Chiro or by any of the few subsequent decisions of the High Court where it has been cited. In these circumstances, it is for the High Court and not an intermediate appeal court to extend the principle: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134]-[135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

246. By sentencing the appellant on the basis that particulars (1)-(4) had been made out, the sentencing judge was not in breach of the De Simoni principle (which formed the basis for the decision in Chiro). His Honour was sentencing the appellant for a single offence, that of attempt to pervert the course of justice.

247. For these reasons, although I would grant leave to appeal to the appellant to rely on ground 1 of his application, the ground has not been made out.

Ground 2: alleged failure to take into account delay

248. The appellant’s argument that the sentencing judge had failed to take into account delay was based on the proposition that his Honour had failed to take into account the period of delay from 23 August 2018. Mr Dhanji submitted that it was not sufficient that his Honour had addressed this period under the heading “Commencement date” because it ought to have been under the heading “Delay”. He submitted that its absence from the reasons under the appropriate heading, indicated that it had not been taken into account on the question of delay and that therefore there had been a House v The King (1936) 55 CLR 499; [1936] HCA 40 error in the exercise of the sentencing discretion.

249. The reasons of sentencing judges are to be read fairly as a whole. In Kaddour v R, an application for leave against sentence was based on the proposition that a factor unrelated to objective seriousness of an offence was in the same paragraph as the factors which were germane to the assessment of objective seriousness. The ground was rejected by this Court on the basis that the words used by the sentencing judge had to be read and understood in context: at [10]-[11] (Leeming JA, Fullerton J agreeing) and [24] (myself, Fullerton J agreeing): see also Attwater v R; Maris v R [2021] NSWCCA 17 at [454]-[460] (Bathurst CJ, Davies and Wilson JJ). The question is whether there is error in the discretion, not whether the reasons of the sentencing judge could have been expressed differently.

250. In the present case, the sentencing judge was plainly alive to the passage of time from 23 August 2018 until the sentence was imposed on 17 December 2020. The three periods set out under the heading of “delay” in the reasons were taken directly from Mr Smith’s written submissions. The matters referred to under the heading, “Commencement date” covered the balance of the period. The total delay was considerable, as his Honour found. The Crown accepted that there was no specific reference in his Honour’s reasons to the six-month period between the end of the first trial and the decision to proceed with the second trial. I am not persuaded that this concession was properly made since his Honour extracted from Mr Smith’s written submissions the three periods which are set out above, the third of which relates to that six-month period.

251. I discern no error in his Honour’s reasons or in the exercise of the discretion. I am not persuaded that anything less than the full period of delay was taken into account by his Honour. The latter period of delay was taken into account generally in the fixing of the sentence as well as specifically in relation to the commencement date. There was no evidence of the effects of delay although the Crown accepted that some stress could be inferred from delay of itself. The sentencing discretion does not miscarry simply because the sentencing judge does not refer to every piece of evidence or every detail, as long as relevant factors were taken into account. The sentencing judge took into account delay. The structure of his Honour’s judgment was influenced by the way in which submissions were put on behalf of Mr Gould but the substance of the judgment made it clear that his Honour was cognisant of the total length of delay which was, in any event, apparent from the material before his Honour.

252. Although I would grant leave for this ground, I am not persuaded that it has been made out. Accordingly, I would propose that the application for leave to appeal against sentence be granted but that the appeal be dismissed.

The Crown appeal against sentence

253. The Crown submitted that the sentence imposed was manifestly inadequate and that the residual discretion ought not be exercised. The Crown contended that the sentence was so lenient as to be “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). In substance, the Crown submitted that there was a lack of correspondence between the finding of the sentencing judge and his Honour’s assessment of the objective seriousness of the offending (that it was very serious and that, because of its seriousness, there was no comparable case) on the one hand and the sentence imposed on the other.

254. The Crown catalogued his Honour’s findings as to the subjective matters in the respondent’s favour (prior good character, age, delay, hardship in prison, extra-curial punishment) and noted that his Honour had indicated qualitatively the weight given to such factors. The Crown also listed the factors that were not in the respondent’s favour, such as lack of contrition or remorse and that his health issues could be treated in gaol.

255. The Crown submitted that, having regard to the relatively few ameliorating matters affecting the respondent’s subjective case, the findings about objective seriousness and the need for general and specific deterrence, the sentence was plainly too lenient and indicated that there had been an error of principle. The Crown submitted that the findings were incongruous with the sentence actually imposed.

256. Mr Dhanji submitted that the factors of delay and age were more than sufficient to ameliorate the objective seriousness of the offending and there was no basis on which the sentence could be regarded as manifestly inadequate in all the circumstances.

257. I am persuaded that the respondent’s conduct, as found by the sentencing judge and as demonstrated by the incontrovertible evidence before this Court, warranted a much more severe sentence than the one imposed. His Honour’s assessment of objective seriousness (based in part on the sustained, sophisticated, deliberate acts of the respondent), the lack of comparable cases (because the present case was so serious, see [215] of the sentencing judgment extracted above), the need for general and specific deterrence and the relative paucity of factors in the respondent’s favour (age and delay) was not reflected in the sentence imposed, which I regard as manifestly inadequate. I accept the Crown’s submission that the findings were incongruous with the sentence imposed and that a more significant penalty was required in order to maintain confidence in the criminal justice system.

258. I am persuaded that the residual discretion not to intervene ought not be exercised in favour of Mr Gould. The Crown appeal was filed expeditiously. The purposes of general deterrence will not be served by non-intervention.

253. In my view the Crown appeal ought be allowed and Mr Gould re-sentenced. It is necessary to consider the further material adduced on his behalf on re-sentence, if it became relevant. I note that the Crown did not seek to rely on its further affidavit evidence on the Crown appeal.

254. The additional evidence is contained in an affidavit of Bronwen Peberdy of 24 March 2021, who deposed as to the conditions of the respondent’s custody. He spent two weeks in isolation at Parklea from 18 December 2020 (which was, in effect, quarantine as a consequence of the COVID-19 pandemic). Subsequently he was housed in a protection area within maximum security at Parklea Gaol. On 7 January 2021, he was classified as a C2 inmate and, on 14 January 2021 he was transferred to Long Bay Correctional Centre (Long Bay) when he was held in maximum security as there were no vacancies in minimum security. The respondent was thought by younger inmates to be a paedophile because of his position in the gaol. There were plumbing problems in the wing which led to putrid conditions. His conditions of custody improved when, on 2 February 2021, he was transferred to the minimum security area at Long Bay. He works in the prison print shop between 6am and 1.30pm. He shares a cell which is said to be infested with cockroaches. He has weekly access to a library.

255. After some delay, the respondent has been able to access medication for high blood pressure and dry eyes. His family brought a CPAP (continuous positive airway pressure) machine for him to use to ensure continuous supply of oxygen when he is asleep. However, he does not use this as the cell is small and his cellmate is deaf and untroubled by snoring. There is some delay obtaining dental treatment for the build-up of plaque as the waiting period is of the order of four months.

256. As his Honour’s only error was in fixing the sentence, I respectfully adopt the findings and reasons of the sentencing judge who, in my view, appropriately assessed objective seriousness and all other relevant factors associated with the sentencing discretion. His Honour was correct to appreciate the substantial need for general deterrence for offending conduct as egregious as the present. I have taken into account the respondent’s conditions in custody, including the medical treatment available, as referred to above, as established by Ms Peberdy’s affidavit.

257. In my view, the appropriate sentence is a term of imprisonment for a period of 6 years with a non-parole period of 3 years and 6 months.

Proposed orders

264. I propose the following orders:

In respect of the application for leave to appeal against conviction

1. Refuse leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of each of grounds 2(a), (b) and (c).

In respect of the application for leave to appeal against sentence

1. Grant leave to appeal.

2. Dismiss the appeal.

In respect of the Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 (NSW)

1. Allow the Crown appeal.

2. Quash the sentence imposed in the District Court on 17 December 2020 and in lieu, sentence the respondent, Vanda Russell Gould, to a total term of imprisonment of 6 years, commencing on 11 May 2020 and expiring on 10 May 2026, comprising a non-parole period of 3 years and 6 months and a balance of term of 2 years and 6 months.

3. The respondent will become eligible for release on parole upon the expiry of the non-parole period on 10 November 2023.

**********

Amendments

10 May 2021 - paragraph [31] - changed "over-offence" to "over-riding offence"

12 May 2022 - paragraph [120] - "[5]" replaced by "[37]"

Decision last updated: 12 May 2022