Greenaway v The State of Western Australia
[2022] WASCA 166
•16 DECEMBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GREENAWAY -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 166
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 15 AUGUST 2022
DELIVERED : 16 DECEMBER 2022
FILE NO/S: CACR 179 of 2021
BETWEEN: THOMAS GRAHAM GREENAWAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MACLEAN DCJ
File Number : GER IND 66 of 2020
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted of 33 counts of stealing and one count of gaining a benefit for another by fraud - Whether trial judge's directions in relation to the elements of the offences gave rise to a miscarriage of justice - Whether guilty verdicts are unreasonable or cannot be supported by the evidence
Criminal law - Evidence - Admission of documentary evidence - Whether trial judge erred in refusing to admit evidence of a statement in a document under s 79C of the Evidence Act 1906 (WA)
Legislation:
Criminal Code (WA), s 22, s 371, s 378, s 409(1)(c)
Evidence Act 1906 (WA), s 79B, s 79C, s 79D, s 79E
Result:
Appeal allowed
Convictions set aside
Judgment of acquittal entered on count 2
New trial ordered for counts 1 and 3 - 34
Category: B
Representation:
Counsel:
| Appellant | : | S Vandongen SC |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | The Defence Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Alford v Magee (1952) 85 CLR 437
Beamish v The Queen [2005] WASCA 62
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527
Cavill v The State of Western Australia [2008] WASCA 108
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Frigger v Trenfield [No 10] [2021] FCA 1500; (2021) 397 ALR 24
Gibbs v The State of Western Australia [2018] WASCA 68
Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221
Hickey v The State of Western Australia [2014] WASCA 32; (2014) 238 A Crim R 237
Hunter v The State of Western Australia [2014] WASCA 184; (2014) 245 A Crim R 191
Ilich v The Queen (1987) 162 CLR 110
Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140
Kauter v Hilton (1953) 90 CLR 86
Kennedy v The State of Western Australia [2021] WASCA 55
Kingdon v The State of Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449
Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; (2015) 255 CLR 62
Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493
Liberato v The Queen (1985) 159 CLR 507
M v The Queen (1994) 181 CLR 487
Martincic v The State of Western Australia [2019] WASCA 134
Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145
Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Ruthsalz v The State of Western Australia [2018] WASCA 178
Skelly v The State of Western Australia [2020] WASCA 3
Trident General Insurance Co Ltd v McNiece Brothers Pty Ltd (1988) 165 CLR 107
Wells v The State of Western Australia [2017] WASCA 27
Table of Contents
Summary
Non-contentious primary facts
Establishment and terms of the YNP Trust
The West Harbour Unit Trust
Loan agreement between appellant and Fawrkt dated 10 March 2010
Incorporation of Fawrkt on 22 March 2010
Acquisition of 56 units from Mr North on 25 March 2010
Loan agreement between Beachcroft and Fawrkt dated 17 June 2010
Acquisition of 84 Units from Mr Edwards on 25 August 2010
Acquisition of 84 Units from Mr Wheatland in 2012
Bank accounts
Transfers from Fawrkt Account to West Harbour Account in early 2013
Count 1: transfer of $72,000 from YNP Trust Account on 24 June 2013
Count 2: loan agreement on 26 June 2013
Acquisition of 56 units from Mr Beardman in December 2013
Counts 3 ‑ 33: transfers from YNP Trust Account to Fawrkt Account
Resolutions removing appellant as Trustee on 9 March 2017
Count 34: transfer of $1,461,800.33 on 9 March 2017
Subsequent transfers from Fawrkt Account to West Harbour Account
Settlement of Supreme Court proceedings on 25 May 2017
Transfers from Fawrkt Account on 23 June 2017
Resignation of the appellant as Trustee of YNP Trust on 5 July 2017
Replacement of the appellant as YNP Trustee by Bulhari on 10 July 2017
Appellant's resignation from Fawrkt and West Harbour on 17 July 2017
Replacement of Bulhari as Trustee of the YNP Trust on 24 April 2018
Total amounts transferred
Financial statements
The State's case at trial
Counts 1 and 3 ‑ 34: stealing
Count 2: fraud
Defence case at trial
Prosecution evidence at trial
Evidence of Advisory Committee members
Evidence of former unit holders of West Harbour Unit Trust
Evidence of Georgia Lewis
Evidence of Detective Sergeant Vesperman
Evidence of Jason Sim
Defence evidence at trial
Appellant's evidence
Evidence of David Watt
Character evidence
Ground 3: directions as to the elements of the fraud charge
Elements of the fraud offence
Trial judge's directions
Appellant's submissions
Disposition
Orders in relation to fraud offence charged in count 2
Ground 4: directions as to the elements of the stealing charges
Statutory provisions
Stealing and conversion of bank credits by a trustee
Significance of ownership of the appellant's share in Fawrkt
Determining whether the share in Fawrkt was held on trust
Significance of the appellant's subjective state of mind
What the State had to prove in this case
Trial judge's directions as to the elements of the stealing offences
Appellant's submissions
Disposition
Grounds 2 and 5: execution panel on 2010 loan agreements
Appellant's submissions
Disposition
Ground 1: admissibility of documentary evidence
Statutory context
The proposed evidence
The trial judge's evidentiary ruling
Grounds of appeal and notice of contention
Application of s 79C(4) to statements in Mr Carter's report
Application of s 79C(1) to statements in Mr Carter's report
Exercise of the discretion under s 79C(6)
Proviso
Orders
JUDGMENT OF THE COURT:
Summary
On 10 September 2021, the appellant was convicted of 33 counts of stealing, contrary to s 378 of the Criminal Code (WA), and one count of gaining a benefit for another by fraud, contrary to s 409(1)(c) of the Code. The counts on the indictment were as follows:
Count 2:On 26 June 2013 at Geraldton, the appellant, with intent to defraud, by deceit or fraudulent means gained a benefit, namely a loan agreement with Yugunga-Nya People's Trust (YNP Trust) for the benefit of FAWRKT Pty Ltd (Fawrkt).
Counts 1 and 3 ‑ 33: On various specified dates from 24 June 2013 ‑ 21 February 2017 at Geraldton, the appellant stole specified amounts ranging from $10,000 to $150,000, the property of the beneficiaries of the YNP Trust.
Count 34:On 9 March 2017 at Geraldton, the appellant stole $1,461,800.33, the property of the beneficiaries of the YNP Trust.
On 4 November 2021, the appellant was sentenced to a total effective sentence of 6 years 4 months' imprisonment from that date. He was made eligible for parole, and a compensation order in the amount of $2,179,533.58 was made in favour of the YNP Trust.
The appellant now appeals against his convictions on five grounds. Ground 1 contends that the trial judge made a wrong decision on a question of law by refusing to admit a document into evidence under s 79C of the Evidence Act 1906 (WA). Ground 2 contends that a miscarriage of justice was occasioned when material evidence, which was admitted at the appellant's trial, was never drawn to the jury's attention. Ground 3 challenges the adequacy of the trial judge's directions in relation to count 2. Ground 4 challenges the adequacy of the trial judge's directions in relation to counts 1 and 3 ‑ 34. Ground 5 contends that the guilty verdicts were unreasonable or cannot be supported by the evidence.
As the appeal notice was filed one day late, the appellant requires an extension of time in which to appeal. The applications for an extension of time, and for leave to appeal on the above grounds, were referred to the hearing of the appeal.
On 31 October 2022, the court granted the appellant bail pending the determination of the appeal or further order.
For the following reasons, an extension of time in which to appeal and leave to appeal on all grounds should be granted. Grounds 3 and 4 are established. Grounds 1 and 5 are not established in relation to the stealing counts. It is unnecessary to determine ground 2. It follows that the appeal should be allowed and the convictions on all counts set aside. We would enter a judgment of acquittal on the fraud offence charged in count 2 on the basis that the prosecution case at trial was fundamentally misconceived. We would order a new trial on the stealing offences charged in counts 1 and 3 ‑ 34 of the indictment.
Non-contentious primary facts
The following facts were not contentious either at trial or on appeal.
Establishment and terms of the YNP Trust
The YNP Trust was established by the YNP Trust Deed dated 26 May 2004. Ronald Eric Shay was the settlor of the YNP Trust and the appellant was the original sole Trustee[1] of the YNP Trust.[2] The terms of the YNP Trust Deed were varied by a Deed of Variation dated 10 October 2008.[3]
[1] The YNP Trust Deed refers to 'Trustees' in the plural although it allows for a single Trustee. As there has only ever been a single trustee of the YNP Trust at the times addressed by the evidence, it is convenient to refer to the 'Trustee', in the singular, in these reasons.
[2] Exhibit 7.
[3] Exhibit 7.1.
The YNP Trust Deed, as varied by the Deed of Variation, contained the following relevant provisions.
The Beneficiaries of the YNP Trust were the Yugunga-Nya People (a native title claim group), their spouses and children and any persons of Aboriginal descent living (permanently or temporarily) in the Shire of Meekatharra or the Shire of Cue.[4] The YNP Trust was a discretionary trust, and no individual Beneficiary or group of Beneficiaries had any vested interest in, or entitlement to, any of the Trust Fund.[5]
[4] Clause 3.1 of the YNP Trust Deed as varied.
[5] Clause 3.2 and cl 10.4 of the YNP Trust Deed.
The Trust Fund was defined to be the settlement sum of $10 and 'all moneys, investments and other property from time to time paid, or transferred to and accepted by the Trustees from any person as additions to the Trust Fund', together with income added to the Trust Fund and accretions to the capital of the Trust Fund.[6] The Trustee declared that the Trust Fund was held on trust subject to the powers and provisions contained in the YNP Trust Deed.[7]
[6] Clause 1.1 of the YNP Trust Deed (definition of Trust Fund).
[7] Clause 2.2(c) of the YNP Trust Deed.
Subject to the Trustee's entitlement to retain and receive reasonable professional costs and reasonable expenses in undertaking trust activities, no part of the Trust Fund was to be held or applied for the personal benefit of the Trustee.[8]
[8] Clause 3.3 and cl 5.7 of the YNP Trust Deed.
The primary object and purpose of the YNP Trust was the relief of 'aged, poverty, sickness, suffering, distress, misfortune or destitution of the Beneficiaries'. The secondary objects and purposes included the advancement of education of the Beneficiaries, the advancement of the culture and religion of the Beneficiaries and other purposes beneficial to the community of the Beneficiaries. The objects of the YNP Trust were to be carried out without purpose of private gain.[9]
[9] Clause 4.1 of the YNP Trust Deed as varied.
The Trustee was to hold the Trust Fund in perpetuity and apply the capital and income amongst the Beneficiaries for the above objects and purposes.[10]
[10] Clause 4.2(a) of the YNP Trust Deed.
Specific powers of the Trustee included:
1.investing any of the Trust Fund in any form of investment other than investments which are speculative in accordance with the YNP Trust Deed and any agreement between the Trustee and any other person;[11]
2.acquiring and holding personal property for the purposes of the Trust;[12]
3.acquiring any real or personal property which the Trustee considered necessary or convenient for achieving the objects and purposes of the Trust;[13] and
4.lending or advancing money or giving credit to any person or company on prudent and commercial terms with adequate security.[14]
[11] Clause 6.2(b) and cl 10.3 of the YNP Trust Deed.
[12] Clause 6.2(c) of the YNP Trust Deed.
[13] Clause 6.2(f) of the YNP Trust Deed.
[14] Clause 6.2(g) of the YNP Trust Deed.
The Trustee had the ultimate decision-making power in all matters relating to the YNP Trust.[15] An Advisory Committee of not more than 10 members was established to advise the Trustee.[16] The Trustee was required to consult with and obtain the recommendation of the Advisory Committee on matters which included the investment and distribution of the Trust Fund.[17] However, the Trustee was not bound to act on any recommendation or advice of the Advisory Committee.[18]
[15] Clause 6.3(a) of the YNP Trust Deed.
[16] Clause 9.1 and cl 9.8 of the YNP Trust Deed.
[17] Clause 9.3(a) and cl 9.3(b) of the YNP Trust Deed.
[18] Clause 9.5 of the YNP Trust Deed.
The Initial Advisory Committee comprised nine individuals named in the YNP Trust Deed (including Mr Ron Shay).[19] Subsequently, members of the Advisory Committee were to be elected at community meetings of the Yugunga-Nya People which the Trustee was required to organise at least once a year.[20] If a quorum of 15 adult Yugunga‑Nya People were not present at a community meeting, the existing members of the Advisory Committee would serve a further 12 months as members of the Advisory Committee.[21]
[19] Clause 9.2(b) of the YNP Trust Deed.
[20] Clause 9.10 of the YNP Trust Deed.
[21] Clause 9.10(d) of the YNP Trust Deed.
The Advisory Committee had the power, by a three-quarter majority decision of all Advisory Committee members, to terminate the appointment of a person as Trustee and to appoint a person or persons as a replacement Trustee.[22]
[22] Clause 5.5 of the YNP Trust Deed.
The income of the YNP Trust primarily came from payments under agreements between the native title claimants and companies undertaking mining on the claim area. The revenue of the YNP Trust increased significantly in 2013, as indicated in the following table:[23]
[23] Exhibit 43; trial ts 610.
| YNP Trust Income for Financial Years ending 30 June 2010 to 30 June 2017 | |||||||
| 2010 | 2011 | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 |
| $78,423 | $591,506 | $233,635 | $1,845,113 | $3,030,334 | $3,039,405 | $3,798,988 | $3,865,744 |
The West Harbour Unit Trust
West Harbour Pty Ltd (West Harbour) was incorporated in 1994 and was the trustee of the West Harbour Unit Trust. A Unit Holder's Agreement of 2007 identified the following unit holders of the West Harbour Unit Trust at that time:[24]
[24] Exhibit 1; exhibit 19.
Unit Holder
Units Held
Ian Douglas Wheatland and Norene Patricia Mazzuchelli as Trustees for the I & N Investment Trust
84 Units
Terence Roy Edwards as Trustee for the Edwards Family Trust
84 Units
Brian Wake Beardman
56 Units
Phillip McLaren North
56 Units
Total Units
280 Units
Mr Wheatland, Mr Edwards, Mr Beardman and Mr North were all directors of West Harbour around the time the Unit Holder's Agreement was executed.
West Harbour, as trustee for the West Harbour Unit Trust, held a lease over the site of, and operated the business of, the Freemasons Hotel in Geraldton.[25]
Loan agreement between appellant and Fawrkt dated 10 March 2010
[25] Exhibit 1; exhibit 14.
A loan agreement dated 10 March 2010 was executed between the appellant (as lender) and Fawrkt (as borrower).[26] The loan agreement recorded that the appellant had lent $75,002 to Fawrkt. The purpose of the loan was to enable Fawrkt to purchase 56 units in the West Harbour Unit Trust and two shares in West Harbour as trustee of the West Harbour Unit Trust.[27]
[26] Exhibit 33.
[27] Clause 1 of the loan agreement.
The loan was required to be repaid on or before 30 April 2021 at latest, subject to the appellant's discretion to require only partial repayment of the loan.[28] Fawrkt could repay the loan at any time,[29] and was not required to pay interest on the loan.[30] Fawrkt was required to pay all outgoing costs of the Freemasons Hotel, maintain sufficient insurance on the Freemasons Hotel and maintain the Freemasons Hotel.[31]
[28] Clause 2 of the loan agreement.
[29] Clause 3 of the loan agreement.
[30] Clause 4 of the loan agreement.
[31] Clause 7 of the loan agreement.
The appellant signed the 10 March 2010 loan agreement for both borrower and lender. The execution panel for the borrower was in the following terms:
SIGNED BY Thomas Graham Greenaway as Trustee for the Yugunga‑Nya People's Trust, Director Fawrkt Pty Ltd[.]
Incorporation of Fawrkt on 22 March 2010
Fawrkt was registered as a proprietary limited company on 22 March 2010. On registration, the appellant was the sole director and secretary of Fawrkt. He also held the only issued share in Fawrkt.[32]
[32] Exhibit 17.
The company registration form was lodged with the Australian Securities and Investments Commission (ASIC) on 22 March 2010 by ACN Direct Pty Ltd and signed by Rodney John Hinchcliffe. The letter 'Y' was typed in the section of the form which asked whether shares were beneficially owned. The ASIC Current & Historical Company Extract for Fawrkt also indicated that the appellant held the share in Fawrkt beneficially.[33]
Acquisition of 56 units from Mr North on 25 March 2010
[33] Exhibit 17.
On 25 March 2010, Phillip McLaren North transferred his 56 units in the West Harbour Unit Trust to Fawrkt for $75,000.[34]
[34] Exhibit 3; trial ts 200 ‑ 201.
Mr North ceased to be a director of West Harbour on 23 March 2010. The appellant was appointed as a director of West Harbour on 23 March 2010.[35]
Loan agreement between Beachcroft and Fawrkt dated 17 June 2010
[35] Exhibit 19.
A loan agreement dated 17 June 2010 was executed between Beachcroft Holdings Pty Ltd (Beachcroft) (as lender) and Fawrkt (as borrower).[36] Beachcroft was a company controlled by the appellant and used as the corporate vehicle for his financial planning business.[37] The loan agreement recorded that Beachcroft had lent $25,000 to Fawrkt and may lend further moneys to Fawrkt. The purpose of the loan was to enable Fawrkt to operate the Freemasons Hotel.[38]
[36] Exhibit 33.
[37] Trial ts 419; exhibit 20.
[38] Clause 1 of the loan agreement.
The loan was required to be repaid on or before 30 April 2021 at latest, subject to Beachcroft's discretion to require only partial repayment of the loan.[39] Fawrkt could repay the loan at any time,[40] and was not required to pay interest on the loan.[41] Fawrkt was required to pay all outgoing costs of the Freemasons Hotel, maintain sufficient insurance on the Freemasons Hotel and maintain the Freemasons Hotel and its surrounds.[42]
[39] Clause 2 of the loan agreement.
[40] Clause 3 of the loan agreement.
[41] Clause 4 of the loan agreement.
[42] Clause 7 of the loan agreement.
The appellant signed the 17 June 2010 loan agreement for both borrower and lender. The execution panel for the lender indicated that the appellant was a director of Beachcroft. The execution panel for the borrower was in the following terms:
SIGNED BY Thomas Graham Greenaway as Trustee of Yugunga-Nya Peoples [sic] Trust as Director Fawrkt Pty Ltd[.]
Acquisition of 84 Units from Mr Edwards on 25 August 2010
On 25 August 2010, Terence Edwards as Trustee for the Edwards Family Trust transferred his 84 units in the West Harbour Unit Trust to Fawrkt for $120,000.[43]
[43] Exhibit 5; trial ts 221 ‑ 222.
Mr Edwards ceased to be a director and secretary of West Harbour on 26 August 2010. The appellant was appointed as the sole secretary of West Harbour on 26 August 2010.[44]
Acquisition of 84 Units from Mr Wheatland in 2012
[44] Exhibit 19.
At some time in 2012 (the evidence does not reveal the precise date), Mr Ian Wheatland and Ms Norene Mazzuchelli as trustees for the I & N Investment Trust transferred their 84 units in the West Harbour Unit Trust to Fawrkt for $35,360.18.[45]
[45] Exhibit 22; trial ts 341 ‑ 342.
Mr Wheatland ceased to be a director of West Harbour on 10 October 2012.[46]
Bank accounts
[46] Exhibit 19.
The relevant entities operated the following bank accounts at all material times:[47]
1.The appellant, as Trustee for the YNP Trust, operated a National Australia Bank (NAB) business management account with an account number ending in 8192 (YNP Trust Account).
2.Fawrkt operated a NAB business cheque account with an account number ending in 7796 (Fawrkt Account).
3.West Harbour, as trustee for the West Harbour Unit Trust, operated a NAB business cheque account with an account number ending in 6495 (West Harbour Account).
[47] Exhibit 28.
When the appellant (as opposed to his bookkeeper) caused a transfer to be made he would put his initials 'tgg' in the description of the transaction to 'track who was doing things'.[48]
Transfers from Fawrkt Account to West Harbour Account in early 2013
[48] Trial ts 461 ‑ 462.
On various dates from 27 February 2013 ‑ 11 April 2013, amounts totalling $100,000 were transferred from the Fawrkt Account to the West Harbour Account. The payments were designated as 'loan for tax fawrkt tgg', 'loan from Fawrkt Fawrkt tgg' and 'loan to freemasons fawrkt'.[49]
Count 1: transfer of $72,000 from YNP Trust Account on 24 June 2013
[49] Exhibit 28.
On 24 June 2013, $72,000 was transferred from the YNP Trust Account to the Fawrkt Account, designated as 'loan t fawkt pl tgg'. Also on 24 June 2013, $100,000 was transferred from the Fawrkt Account to the West Harbour Account.[50]
Count 2: loan agreement on 26 June 2013
[50] Exhibit 28.
A loan agreement dated 26 June 2013 was executed between the appellant as Trustee of the YNP Trust (as lender) and Fawrkt (as borrower).[51]
[51] Exhibit 14.
The loan agreement acknowledged that the appellant as Trustee of the YNP Trust had lent the sum of $72,000 to Fawrkt, and that further amounts may be lent to Fawrkt. The agreement stated that the loan was secured against the 100 units of the West Harbour Unit Trust owned by Fawrkt, which owned a lease over the business known as the Freemasons Hotel until 30 April 2021. The stated purpose of the loan was to 'establish a business'.[52] Clause 1.1 of the loan agreement defined the term 'Loan', and provided for payment of interest, as follows:[53]
The Borrower acknowledges that the Lender has lent to the Borrower the sum of $72,000 (the 'Loan') at 6% interest only that would occur on borrowing such funds. The Loan was made to the Borrower on an interest only basis.
[52] Clause 1 of the loan agreement.
[53] Clause 1.1 and cl 4.1 of the loan agreement.
Clause 2.1 of the agreement provided that all monies lent to Fawrkt must be repaid:
2.1.1. on or before 30th April 202l; or
2.1.2. the sale of the 100 Units in the West Harbour Unit Trust
2.1.3. the termination of the lease by West Harbour Unit Trust over the Freemasons Hotel, 79 Marine Terrace Geraldton.
2.1.4.upon any default by the Borrower; or
2.1.5. upon any other event referred to in this Loan Agreement that entitles the Lender to require repayment of the Loan.
The loan agreement also provided:
2.2.If the loan becomes repayable then the Lender may at the Lender's discretion require only partial repayment of the Loan, in which event the balance of the Loan not repaid continues to be immediately due and owing and the terms of this Loan Agreement apply.
2.3. The Borrower will repay the Loan by instalments from profit of the business operations to be determined on the presentation of audited accounts after the end of each financial year, 1st July to 30th June each year.
Clause 3 of the loan agreement gave Fawrkt the right to repay the whole or any part of the Loan at any time even though no demand had been made for repayment and even though the term of the Loan had not expired. Clause 4.1 required Fawrkt to pay interest on the Loan on the basis as set out in cl 1.1 of the loan agreement.
The loan agreement provided for Fawrkt to 'provide the Units of the West Harbour Unit Trust owned by Fawrkt … as security against this loan'. If security was not provided after 90 days on terms satisfactory to the appellant as Trustee of the YNP Trust, the appellant could demand repayment of the whole loan sum.[54]
[54] Clause 7.1 of the loan agreement.
Fawrkt agreed to 'maintain relevant business insurance' and to:[55]
Payment of annual interest within seven days of the determination of profit sufficient to pay the outstanding interest by Fawrkt Pty Ltd must be met without any default.
[55] Clause 8 of the loan agreement.
The loan agreement was signed by the appellant for both the lender and the borrower. The execution panel for the lender was in the following terms:
SIGNED BY Thomas Graham Greenaway, Trustee of the Yugunga-Nya People's Trust[.]
The execution panel for the borrower was in the following terms:
SIGNED BY Thomas Graham Greenaway, Trustee of the Yugunga-Nya People's Trust as FAWRKT Pty Ltd Director[.]
The appellant's signatures on the loan agreement were both witnessed by Mr Ron Shay.
Acquisition of 56 units from Mr Beardman in December 2013
On or about 6 December 2013, Brian Beardman transferred his 56 units in the West Harbour Unit Trust to Fawrkt for no or nominal consideration.[56] At this point, Fawrkt held all units in the West Harbour Unit Trust.
[56] Exhibit 2; trial ts 188 ‑ 190.
Mr Beardman ceased to be a director of West Harbour on 6 December 2013. From this point, the appellant was the only director of West Harbour.[57]
Counts 3 ‑ 33: transfers from YNP Trust Account to Fawrkt Account
[57] Exhibit 19.
On various dates from 7 November 2013 ‑ 21 February 2017, funds the subject of counts 3 ‑ 33 on the indictment were transferred from the YNP Trust Account to the Fawrkt Account. The amounts transferred on each occasion ranged from $10,000 to $150,000. They were generally designated as loans to Fawrkt in the transaction description. One of the transfer designations ended with the appellant's name and all other designations ended with 'tgg'. Equivalent amounts were transferred from the Fawrkt Account to the West Harbour Account, often (but not always) on the same day.[58]
Resolutions removing appellant as Trustee on 9 March 2017
[58] Exhibit 28.
A purported community meeting of the Yugunga-Nya People was held at Meekatharra on 9 March 2017. At that meeting, it was resolved to remove the existing members of the Advisory Committee and appoint a new Advisory Committee. The new Advisory Committee immediately resolved to remove the appellant as Trustee of the YNP Trust and appoint Bulhari Holdings Pty Ltd (Bulhari) as Trustee of the YNP Trust.[59]
Count 34: transfer of $1,461,800.33 on 9 March 2017
[59] Exhibit 8; exhibit 9; trial ts 265 ‑ 267.
On 9 March 2017, $1,461,800.33 was transferred from the YNP Trust Account to the Fawrkt Account. The transfer was designated 'Investment tgg'.[60]
Subsequent transfers from Fawrkt Account to West Harbour Account
[60] Exhibit 28.
On various dates from 10 March 2017 ‑ 17 July 2017, transfers totalling $234,000 were made from the Fawrkt Account to the West Harbour Account.[61] On 17 July 2017, the appellant ceased to hold office as a director of Fawrkt (see [62] below).
Settlement of Supreme Court proceedings on 25 May 2017
[61] Exhibit 28.
The appellant challenged the validity of his purported removal as Trustee of the YNP Trust in Supreme Court proceedings, which were settled at mediation on 25 May 2017. Consent orders declared the appellant to be Trustee of the YNP Trust on his undertaking to:[62]
1.by no later than 26 June 2017, convene a community meeting of the Yugunga-Nya People for the purposes of electing an Advisory Committee;
2.within three days of the community meeting being held, convene a meeting of the Advisory Committee, to be facilitated by an independent person, for the purpose of electing a Trustee of the YNP Trust; and
3.resign as Trustee of the YNP Trust at the Advisory Committee meeting.
Transfers from Fawrkt Account on 23 June 2017
[62] Exhibit 16; trial ts 287 ‑ 288.
On 23 June 2017, the following transfers were made out of the Fawrkt Account:[63]
1.$182,109.61 designated 'Repay Martransfer TGG' to Yugunga‑Nya People Pty Ltd (from which the appellant had also transferred funds to the Fawrkt Account on 9 March 2017).
2.$206,000 designated 'Repay loan to TGG TGG' to the appellant in repayment of the amount he had lent Fawrkt.
3.$278,259.19 designated 'Repay loan Ynpt tgg' to the YNP Trust Account.
4.$574,348.14 designated 'Repay Loan Beachc TGG' to Beachcroft in repayment of amounts it had lent Fawrkt.
[63] Exhibit 28; trial ts 467 ‑ 468.
This left the Fawrkt Account with a balance of $134,737.65, which was transferred to Bulhari as the new Trustee of the YNP Trust on 18 July 2017.[64]
Resignation of the appellant as Trustee of YNP Trust on 5 July 2017
[64] Exhibit 28.
The appellant resigned as Trustee of the YNP Trust by letter to the Advisory Committee dated 5 July 2017. The letter stated that his resignation took effect upon the execution of the Deed of Appointment for the new trustee.[65]
Replacement of the appellant as YNP Trustee by Bulhari on 10 July 2017
[65] Exhibit 32.
By Deed of Appointment dated 10 July 2017, between two Advisory Committee representatives, the appellant as outgoing Trustee and Bulhari, Bulhari replaced the appellant as sole Trustee of the YNP Trust.[66]
Appellant's resignation from Fawrkt and West Harbour on 17 July 2017
[66] Exhibit 10.
On 17 July 2017, the appellant ceased to be a director and secretary of Fawrkt and West Harbour. The appellant also ceased to be a shareholder in Fawrkt and Fawrkt ceased to be a shareholder in West Harbour.[67]
Replacement of Bulhari as Trustee of the YNP Trust on 24 April 2018
[67] Exhibit 17; exhibit 19.
At a meeting on 24 April 2018, the Advisory Committee resolved to remove Bulhari as Trustee of the YNP Trust and appoint ISPL Y‑N Pty Ltd (ISPL) as Trustee of the YNP Trust. Annexure C to the Deed of Assignment and Assumption, which gave effect to that transfer of the role of Trustee, identified the following as assets of the YNP Trust:[68]
Shares in FAWRKT Pty Ltd and related corporate entities Including West Harbour Pty Ltd and West Harbor Unit Trust[.]
Various loans and accounts including those relating to FAWRKT Pty Ltd and related entities[.]
Total amounts transferred[69]
[68] Exhibit 46.
[69] Exhibit 28.
The transfers from the YNP Trust Account to the Fawrkt Account, which are the subject of counts 1 and 3 ‑ 34, totalled funds of $2,909,300.33.
The total amount returned from the Fawrkt Account to the YNP Trust Account was $350,259.19.
The total amount transferred from the Fawrkt Account to the West Harbour Account from 27 February 2013 ‑ 17 July 2017 was $2,266,800.
The amounts transferred from the Fawrkt Account to repay loans from the appellant and Beachcroft totalled $780,348.14.
The amount transferred from the Fawrkt Account to Bulhari on 18 July 2017 was $134,737.65.
Financial statements
YNP Trust
Financial reports for the YNP Trust for the financial year ending 30 June 2013 to the financial year ending 30 June 2016, and balance sheets as of April 2017 and 31 May 2018:[70]
1.recorded funds transferred from the YNP Trust Account to the Fawrkt Account, which were the subject of counts 1 and 3 ‑ 33 on the indictment, as a current asset, described as 'Loan to FAWKT [sic]' or 'Loan to FAWRKT'; and
2.did not record the share in Fawrkt or any interest in the business operating the Freemasons Hotel as an asset of the YNP Trust.
The transfer of $1,461,800.33 on 9 March 2017 does not appear in the balance sheet as of April 2017 but is accounted for in the balance sheet as of 31 May 2018.
Fawrkt
[70] Exhibit 27.
Financial reports for Fawrkt for the financial year ending 30 June 2013 to the financial year ending 30 June 2017 showed:[71]
[71] Exhibit 27.
1.a loan to the West Harbour Unit Trust as a current asset;
2.shares in West Harbour (valued at $8 or $10) and units in the West Harbour Unit Trust (valued at $95,791.86) as non‑current assets; and
3.loans from:
(a)Beachcroft (ranging from $163,396 in the year ended 30 June 2013 up to $361,348.14 in the year ended 30 June 2016 and reducing to zero in the year ended 30 June 2017);
(b)'Svanos Trust'[72] (in the amount of $206,000 until the year ended 30 June 2016, reducing to zero in the year ended 30 June 2017); and
(c)the appellant as Trustee for the YNP Trust.
The amounts of the loan from the YNP Trust do not correspond with, and are in excess of, the amounts shown in the financial statements for the YNP Trust. There is also an apparent typographical error in Fawrkt's financial reports up to the year ended 30 June 2016, which refer to the loan being from the appellant 'ATF Wyuganga-Nya Peoples Trust'.[73]
West Harbour Unit Trust
[72] The appellant's evidence was that Svanos Trust was the operating trust for a bank account in his name: trial ts 446.
[73] See exhibit 27; trial ts 382 ‑ 386, 391 ‑ 392.
Financial reports for the West Harbour Unit Trust showed that, in the financial year ended 30 June 2012, the business made a before tax profit of $241,555.02. The business made the following losses before tax in the following financial years:[74]
[74] Exhibit 27; exhibit 29; see trial ts 374 ‑ 376. It may be noted that Mr Sim, in accepting propositions put in leading questions by the prosecutor, incorrectly referred to the losses as being after tax and the total losses as being over $2 million.
Financial year
Before tax loss
2012/2013
$257,741.90
2013/2014
$433,908.65
2014/2015
$304,080.99
2015/2016
$426,070.05
2016/2017
$458,387.35
Total
$1,880,188.94
The State's case at trial
At trial, the prosecutor framed the State's case against the appellant in the following way.
Counts 1 and 3 ‑ 34: stealing
In relation to counts 1 and 3 ‑ 33, the State's case was that the appellant stole money from the YNP Trust Account when he transferred the money to the Fawrkt Account on various occasions. The prosecutor referred to the transfer of funds between the accounts as the taking or conversion of money. He contended that the accused was deemed to have taken or converted the money fraudulently on the basis that he took it with the intent of using it at his own will.[75]
[75] Trial ts 68 ‑ 69.
The State's case was that the appellant was using the YNP Trust funds to support the running of the Freemasons Hotel which, on the State's case, was the appellant's 'own business' and was failing.[76]
[76] Trial ts 78 ‑ 80.
At the beginning of his closing submissions, the prosecutor observed:[77]
[I]n reality, this trial boils down to this one simple issue: was the Freemasons Hotel [the appellant's] own business[?] The answer to this question will lead you to your verdict in each and every charge on the indictment.
The prosecutor observed that there was no dispute that the appellant transferred the funds referred to in the indictment or that, if the appellant were taking the money with the intention of using the money to run his own business (the Freemasons Hotel), he would be stealing that money. The prosecutor identified the real issue as being whether the appellant took or converted the money with intent to use the money at his own will, which turned on the single issue of whether the Freemasons Hotel was the appellant's 'own business'.[78]
[77] Trial ts 656.
[78] Trial ts 656 ‑ 657.
The prosecutor contended that the only rational inference that could be drawn from all the factual circumstances, considered as a whole, was that the Freemasons Hotel was the appellant's 'own business'.[79] The combination of circumstances on which the State relied was:[80]
1.The ASIC Current & Historical Company Extract for Fawrkt recorded that the appellant owned the share in Fawrkt beneficially.
2.The name 'Fawrkt' was made up of the initials of the appellant's family members.
3.The appellant used his own money to enable Fawrkt to purchase the units in the West Harbour Unit Trust and continued to use his own money to run the Freemasons Hotel (totalling about $700,000), both before and after he started using the YNP Trust Fund for that purpose.
4.The appellant made no mention of the YNP Trust in his business dealings with other unit holders of the West Harbour Unit Trust.
5.There was a lack of disclosure about the Freemasons Hotel business to the Advisory Committee.
6.The appellant amended the minutes of the Advisory Committee in an attempt to avoid both criminal and civil liability for money he took from the YNP Trust Account.
7.There was no objective evidence to support the appellant's contention that he purchased the Freemasons Hotel on behalf of the YNP Trust for the purpose of training or employing Yugunga‑Nya People.
[79] Trial ts 657.
[80] Trial ts 657 ‑ 664.
The prosecutor contended that the appellant invested in the Freemasons Hotel for himself, and that he had taken funds from the YNP Trust Account on each charged occasion to support the running of his 'own business'.[81]
[81] Trial ts 664 ‑ 665.
In relation to count 34, the prosecutor accepted that the appellant may have used a portion of the $1.4 million transferred from the YNP Trust Account to the Fawrkt Account on 9 March 2017 to continue operating the YNP Trust. However, the 'vast majority' of those funds were used for the appellant's 'own purposes' - either to fund the operation of the Freemasons Hotel or to 'pay himself back' money loaned by the appellant and Beachcroft to Fawrkt.[82] As the amount stolen was only a particular, the appellant could be found guilty of count 34 if he intended to use at least some of $1.4 million that he transferred on 9 March 2017 at his own will.[83]
Count 2: fraud
[82] Trial ts 665 ‑ 666.
[83] Trial ts 666.
The State's case in relation to count 2 was that, with fraudulent or dishonest intent, the appellant gained a benefit for his company, Fawrkt, by entering into the 26 June 2013 loan agreement. The State contended that the loan agreement was a device used to disguise what was in fact theft of money from the YNP Trust, and that it was never intended to be an enforceable agreement.[84]
[84] Trial ts 74.
The State contended that the conditions of the loan were 'highly favourable' to the borrower and extremely detrimental to the YNP Trust, including because the loan amount was only repayable if the Freemasons Hotel made a profit.[85]
[85] Trial ts 74 ‑ 77.
The prosecutor contended:[86]
So the State says this loan agreement was an attempt by [the appellant] to make an illegitimate transaction appear to be legitimate. So that's the $72,000. It demonstrates that [the appellant's] fraudulent intent ‑ because he ‑ so obvious ‑ obviously bias in favour of the borrower, a company controlled by [the appellant], and some of the terms in this agreement are so bizarre that it shows that the loan agreement was not intended to be enforceable, and, in reality, it was just for show to an unsophisticated audience.
[The appellant] would have ‑ well, he would have known that the Freemasons Hotel was not making a profit when he executed the loan agreement, and there was no realistic expectation of the hotel being profitable in the short to medium-term. He was the person running the hotel, so he knew about the business more than anyone else, so, therefore, [the appellant] was fully aware that there was no income to support the loan repayment, and the loan was not adequately secured, so we say the loan agreement was a sham to mask [the appellant's] real intent which was to use the money from [YNP Trust] to prop up his failing business.
Now, given [the appellant's] professional background and extensive financial experience, we say there was just no way he would have entered into such an agreement if he was acting [honestly] and genuinely looking after the interest of the beneficiary, not to mention that this ‑ you know, this represents a fundamental breach of the trust that he was not to gain a personal benefit from the distribution of the trust fund. So the State says his fraudulent intent is apparent.
[86] Trial ts 78.
In closing, the prosecutor said that the case was 'not really about deceit' but was about 'using fraudulent means'. He said that 'fraudulent' meant 'dishonest'. The prosecutor said:[87]
The fraudulent means, in this case, is the signing of the loan document itself. The State case is that the loan agreement was a sham that was intended to disguise theft from the trust as loans.
[87] Trial ts 668.
The prosecutor argued that the 26 June 2013 loan agreement was a 'sham' on the basis that:[88]
1.The agreement was signed by the appellant on behalf of both the lender and borrower, indicating that the agreement 'was not intended to be taken seriously or as an enforceable contract'.
2.The repayment obligation is not clearly defined other than to say repayments would be from business profits, in a context where the Freemasons Hotel was struggling, meaning that 'no profits [meant] no repayment'.
3.The loan was said to be secured by 100 units in the West Harbour Unit Trust, which was clearly inadequate in the circumstances.
[88] Trial ts 669 ‑ 670.
The prosecutor concluded this aspect of his submission as follows:[89]
So we say the loan agreement was drafted in a way that favours heavily the borrower to the detriment of [YNP Trust]. This loan agreement doesn't work as [a] real contract because it was not intended to be a real contract. It was just for show to an unsophisticated audience. It is plainly not a prudent or commercial contract, having regard to the terms that I've just referred to and the adequacy of security.
[89] Trial ts 670.
The prosecutor submitted, in effect, that the appellant's alleged intent to defraud was to cause economic loss to the Yugunga-Nya People by signing a 'bogus' loan agreement to enable him to take money from the YNP Trust Account. The prosecutor contended that the appellant's intent to defraud was to be inferred from his conduct in signing what the State said was a 'fraudulent document'.[90]
[90] Trial ts 670 ‑ 671.
Defence case at trial
The defence case was that the appellant held the share in Fawrkt on trust for the YNP Trust at all material times and that he was not the beneficial owner of the share in Fawrkt. Fawrkt was the vehicle by which the YNP Trust invested in the Freemasons Hotel, which was done with the knowledge of members of the Advisory Committee at the time. The appellant himself loaned money to the YNP Trust interest-free. He received nothing from the YNP Trust other than the fees he was entitled to charge for his services as trustee.[91]
[91] Trial ts 82 ‑ 83, 84.
Defence counsel denied that, under the terms of the 26 June 2013 loan agreement, the loaned amount was only ever repayable if the Freemasons Hotel made a profit. He contended, in effect, that the agreement provided for the loaned funds to be repaid on or before 30 April 2021 irrespective of whether the Freemasons Hotel made a profit.[92]
[92] Trial ts 84.
Prosecution evidence at trial
The following is a summary of the prosecution evidence led at trial, omitting some of the non-contentious matters summarised at [7] ‑ [71] above.
Evidence of Advisory Committee members
The prosecution called evidence from four members of the Advisory Committee, who gave evidence to the effect that they were not aware of any investment by the YNP Trust in the Freemasons Hotel.
Leonie Gentle
Leonie Gentle was a member of the Advisory Committee from either 2005 or 2006[93] until 2015.[94] She did not know about the purchase of the Freemasons Hotel until after the appellant was removed as Trustee of the YNP Trust in 2017. The appellant did not discuss the purchase of the Freemasons Hotel at any of the Advisory Committee meetings she attended.[95] However, she accepted that she and other Advisory Committee members did not attend all meetings.[96] The appellant or his secretary took the minutes of the meetings that she did attend.[97]
[93] Trial ts 106.
[94] Trial ts 107.
[95] Trial ts 110.
[96] Trial ts 112, 116 ‑ 117.
[97] Trial ts 108, 114.
When Ms Gentle was elected to the Advisory Committee, Ron Shay and Mavis Curley were on the Committee. Ron Shay died on 11 February 2019 and Ms Curley died in March or April 2010.[98]
Audrey Shar
[98] Trial ts 111.
Audrey Shar was not able to say exactly when she was on the Advisory Committee. She thought was on the committee for 8 ‑ 9 years. She was not on the Advisory Committee when the YNP Trust was established. She started on the Committee at most 10 years after the YNP Trust was established. She was voted on and off the Committee at certain times and had ceased being a member about 2 ‑ 3 years before she gave evidence (in August 2021).[99]
[99] Trial ts 124 ‑ 125, 139.
The appellant or his secretary took notes of the Advisory Committee meetings. As meetings progressed, members asked to see minutes of the meetings and financial statements.[100]
[100] Trial ts 127 ‑ 128, 139.
Ms Shar accepted that she did not attend all meetings of the Advisory Committee when she was a member.[101] Upon inspection of YNP Trust financial reports, she noticed a loan of about $750,000 to Fawrkt, which was not a name that she had heard of before. She assumed that the loan had something to do with an earthmoving project.[102] The appellant did not tell her that Fawrkt was an entity owned by the YNP Trust Fund.[103]
[101] Trial ts 126, 139.
[102] Trial ts 130 ‑ 131, 139.
[103] Trial ts 139.
Ms Shar recalled going to court in Perth and afterwards attending a community meeting at Meekatharra, which was the appellant's last meeting as Trustee. He told the attendees of the community meeting that he was resigning as Trustee. At that meeting, the appellant also said that the YNP Trust had acquired the Freemasons Hotel, which was the first time that Ms Shar had heard anything about the acquisition.[104]
[104] Trial ts 132 ‑ 133, 134, 144.
Ms Shar said that Ron Shay, who was deceased at the time of the trial, was keen to get involved in training young people in the hospitality industry.[105]
Evelyn Gilla
[105] Trial ts 138.
Evelyn Gilla is a senior elder of the Yugunga People. She is Ron Shay's sister and was 79 years old at the time of the trial.[106] Her evidence was somewhat disjointed. She said that the appellant did not ever speak about the Freemasons Hotel at any of the meetings she attended. She did not know anything about the Freemasons Hotel other than that there was a Freemasons Hotel in Geraldton.[107]
[106] Trial ts 150.
[107] Trial ts 158.
Ms Gilla was asked questions about a meeting of the Advisory Committee on 13 June 2018 at Meekatharra attended by Rod Carter, who was an officer of the trustee of the YNP Trust at that time. She recalled being at the meeting but could not recall Mr Carter saying anything about the YNP Trust owning the Freemasons Hotel.[108] The minutes of the meeting were marked as MFI 1.[109]
Sharon McDonald
[108] Trial ts 163 ‑ 165, 172 ‑ 174.
[109] Trial ts 175.
Sharon McDonald was a member of the Advisory Committee for one year from 2015 ‑ 2016.[110] She attended two Advisory Committee meetings and two community meetings in total.[111] There was no discussion of the Freemasons Hotel at the Advisory Committee meetings which she attended as a member.[112] The first she heard of the Freemasons Hotel was at an Advisory Committee meeting in Perth in 2017.[113]
[110] Trial ts 236.
[111] Trial ts 244.
[112] Trial ts 240.
[113] Trial ts 241.
Ms McDonald produced minutes of a community meeting held in Victoria Park on 25 June 2016, which the appellant had sent her and on which she had made handwritten notes. This was the only version of the minutes she recalled receiving.[114]
Evidence of former unit holders of West Harbour Unit Trust
Brian Beardman
[114] Trial ts 242 ‑ 243; exhibit 6.
Brian Beardman was the manager of the Freemasons Hotel, relevantly from 2001 until 2014.[115] Mr Beardman's evidence made it clear that he had a limited understanding of the business structure of the hotel. He said that he was gifted a 5% 'share of the Freemasons Hotel business' and later purchased another 15%.[116] When he bought in to the hotel business, the other unit holders of the West Harbour Unit Trust were Terence Edwards and Ian Wheatland. Phillip North subsequently bought a 20% interest.[117]
[115] Trial ts 179.
[116] Trial ts 180 ‑ 181.
[117] Trial ts 180 ‑ 182.
Mr Beardman understood that the appellant 'bought into the hotel' upon the purchase of Mr North's units in the hotel in around 2010.[118] Mr Beardman also understood that the appellant subsequently purchased Mr Edwards' and Mr Wheatland's shares. Towards the end of 2013, Mr Beardman and the appellant were the only two 'shareholders'.[119]
[118] Trial ts 184 ‑ 185.
[119] Trial ts 185.
Mr Beardman gave evidence that there were monthly meetings of the unit or shareholders at which the business of the Freemasons Hotel was discussed. Mr Beardman knew that the appellant had a position in 'an Aboriginal trust' but could not recall the appellant ever bringing up the subject of the trust in any of their business meetings.[120] Mr Beardman could not recall the appellant discussing the creation of traineeships or employment opportunities for Aboriginal people.[121]
[120] Trial ts 186 ‑ 187.
[121] Trial ts 188, 194.
At the point when they were the only 'shareholders', the hotel business was not going 'as well as it had been', and this created friction between Mr Beardman and the appellant.[122]
[122] Trial ts 187.
At the end of 2013 or early 2014, Mr Beardman transferred his units to Fawrkt 'for free' as he was keen to be away from the business.[123] He thought that he finished in the first week of February 2014.[124] He was aware that Fawrkt was a company that owned the units which the appellant had acquired.[125]
Phillip North
[123] Trial ts 189 ‑ 190; exhibit 2.
[124] Trial ts 191.
[125] Trial ts 196.
Phillip North purchased 56 units in the Freemasons Hotel in 2007 for about $120,000. At that time, Ian Wheatland, Brian Beardman and Terence Edwards were the other 'shareholders'.[126] He relinquished his 'share' to the appellant in early-to-mid 2010 for $75,000.[127]
[126] Trial ts 199 ‑ 200.
[127] Trial ts 200 ‑ 201; exhibit 3.
While Mr North said in his evidence that he believed that the appellant was purchasing the units for himself, he accepted that this was purely speculation on his part.[128] At the time of sale of Mr North's units, the appellant did not mention an Aboriginal trust or that he was buying the Freemasons Hotel for an Aboriginal trust. The appellant did not say that he was buying shares in the Freemasons Hotel so that he could provide training and employment to Aboriginal people.[129]
Terence Edwards
[128] Trial ts 201 ‑ 202.
[129] Trial ts 202.
Terence Edwards was an accountant who gave evidence that he acquired shares in the 'freehold' and 'leasehold' of the Freemasons Hotel in 1995. The 'leasehold' of the Freemasons Hotel traded under West Harbour Pty Ltd as Trustee for the West Harbour Unit Trust.[130]
[130] Trial ts 210 ‑ 213.
Mr Edwards transferred his 84 units to Fawrkt for $120,000 on 25 August 2010.[131] While Mr Edwards was aware that the appellant was acting as Trustee for the YNP Trust, the appellant had never mentioned the YNP Trust to him in the context of the Freemasons Hotel. The appellant never mentioned to Mr Edwards that he had purchased the Freemasons Hotel on behalf of the YNP Trust.[132] Mr Edwards could not recall the appellant mentioning that he would like to have traineeships for young Aboriginal people at the Freemasons Hotel.[133]
Evidence of Georgia Lewis
[131] Trial ts 221 ‑ 222; exhibit 5.
[132] Trial ts 225.
[133] Trial ts 229.
Georgia Lewis was the managing director of Bulhari at the time of the trial, which had a business of acting as trustee for Aboriginal groups.[134]
[134] Trial ts 259.
Towards the end of 2016, Ms Lewis was approached by Ms Gentle to see if she could assist in removing the appellant and appointing Bulhari as Trustee of the YNP Trust.[135] After consulting Ms Gilla and her brother, Rex Shay,[136] Bulhari obtained legal advice and convened a community meeting of the Yugunga-Nya People on 9 March 2017. At the meeting on 9 March 2017, the Advisory Committee members were replaced, and the Committee resolved to remove the appellant as Trustee of the YNP Trust and substitute Bulhari. Notice of his removal as Trustee was served on the appellant either that day or the next.[137] Documents removing the appellant as Trustee were provided to the bank operating the YNP Trust Account with a request to freeze the account.[138]
[135] Trial ts 259 ‑ 260.
[136] Trial ts 260.
[137] Trial ts 265 ‑ 268, 286; exhibit 8; exhibit 9.
[138] Trial ts 268 ‑ 269, 286.
The appellant challenged the validity of his purported removal as Trustee in Supreme Court proceedings. The Supreme Court proceedings were settled at mediation on 25 May 2017 by consent orders that declared the appellant to be Trustee of the YNP Trust and recorded his agreement to resign at an Advisory Committee meeting to be convened no later than 10 August 2017. During the proceedings, Ms Lewis received notification of the appellant's intention to resign as Trustee of the YNP Trust. The Deed recording the appellant's resignation and appointing Bulhari as Trustee of the YNP Trust was signed in July 2017.[139]
[139] Trial ts 269 ‑ 270, 286 ‑ 288; exhibit 10; exhibit 16.
Ms Lewis received two different versions of the following minutes of two Advisory Committee meetings.
23 August 2010 minutes
The following text was included in minutes of a meeting of the Advisory Committee on 23 August 2010 received from the appellant's office as part of the transfer:
Trustee had investigated and proceeded with the purchase of a 20% interest in the Freemasons Hotel Geraldton. The Trustee will attempt to recruit Yugunga-Nya youth for enrolment in the Hospitality Course at Geraldton TAFE.
This text did not appear on the version of the minutes marked 'Original', which was received from the appellant's solicitors during discovery in the Supreme Court proceedings.[140]
18 November 2011 minutes
[140] Trial ts 273 ‑ 274; exhibit 11.
The following text was included in minutes of a meeting of the Advisory Committee on 18 November 2011, received from the appellant's office as part of the transfer, in discussion of a proposed project:
The project would work in with our other hospitality venture at the Freemasons Hotel.
This text did not appear on the version of the minutes marked 'Original', which was received from the appellant's solicitors during discovery in the Supreme Court proceedings.[141]
Other documents produced by Ms Lewis
[141] Trial ts 275 ‑ 276; exhibit 12.
Ms Lewis also produced a bundle of minutes of Advisory Committee and community meetings, received from the appellant's office, from 7 September 2012 until the date of his resignation. There was no mention of the Freemasons Hotel in any of those minutes, and the first mention of Fawrkt was in minutes of a meeting held on 24 June 2017.[142]
[142] Trial ts 276 ‑ 281; exhibit 13.
The appellant provided documents to Ms Lewis when she attended his office a few days after 10 July 2017, which included a signed transfer for the share in Fawrkt and transfer forms for units in the West Harbour Unit Trust signed by the appellant.[143] Bulhari did not transfer the units in the West Harbour Unit Trust to itself, which led to the loss of the liquor licence for the Freemasons Hotel and the need to apply for a new liquor licence.[144]
Evidence of Detective Sergeant Vesperman
[143] Trial ts 291 ‑ 292.
[144] Trial ts 292 ‑ 293.
Detective Sergeant Tony Vesperman was the investigating officer, who gave evidence at trial and produced a number of documents. He was allocated the investigation file in November 2017.[145]
[145] Trial ts 299.
On 21 February 2018, Detective Sergeant Vesperman spoke to Mr Ron Shay at Mr Shay's home. Mr Shay, who was deceased at the time of trial, was willing to speak to the police but was not willing to provide a written statement.[146] He gave evidence that police executed a search warrant on the premises of the appellant's financial planning business on 20 February 2018 and arrested the appellant on 16 December 2019.[147]
Evidence of Jason Sim
[146] Trial ts 348 ‑ 349, 350 ‑ 351. The transcript reference to a 'Warren' Shay at ts 348 appears to be a typographical error.
[147] Trial ts 349.
Jason Sim was a senior forensic accountant employed by the Western Australia Police Force. He gave evidence of his analysis of bank statements, financial statements and the transactions referred to elsewhere in these reasons.
Defence evidence at trial
The following is a summary of evidence given or adduced by the appellant at trial, omitting some of the non-contentious matters summarised at [7] ‑ [71] above.
Appellant's evidence
The appellant was 70 years old at the date of the trial and had lived in Geraldton for most of his life. He had worked as a financial planner since 1990 and had established a business, which his daughter had taken over.[148] He was not 'financially struggling, personally' between 2010 and 2018.[149] He was not an accountant or lawyer.[150]
[148] Trial ts 400 ‑ 401.
[149] Trial ts 402.
[150] Trial ts 403.
The appellant said that he did not prepare financial statements for the YNP Trust or Fawrkt but rather engaged a bookkeeper and an accountant who worked together to prepare the results.[151]
Use of the name Fawrkt
[151] Trial ts 405.
The appellant accepted that 'Fawrkt' was an acronym of the initials of his wife, himself and their children and grandchildren, which he and his wife had used for a self-managed superannuation fund. He said that the Yugunga-Nya People have a link to the emu and the YNP Trust used a logo of an emu foot to represent that engagement. The logo of the three-pronged emu foot looked like a fork, so he tried to register the company in the name 'Forked'. When that name was not available, he used 'Fawrkt' which was phonetically the same.[152]
Establishment of Fawrkt
[152] Trial ts 406 ‑ 407, 504 ‑ 505, 507 ‑ 508; exhibit 31.
The appellant said that he held the share in Fawrkt as Trustee for the YNP Trust. He set the company up when Mavis Curley and Ron Shay, as founding members of the Advisory Committee, wanted to train young Yugunga-Nya People in hospitality. Ms Curley wanted the YNP Trust to buy the Royal Mail Hotel in Meekatharra, but that was difficult to entertain. The appellant had been told by his friend, Mr Beardman, that Mr North wanted to 'get out', so he pursued that opportunity on behalf of the Yugunga-Nya People.[153]
[153] Trial ts 413 ‑ 414, 416 ‑ 418.
The appellant's evidence was that he discussed the Freemasons Hotel with the initial Advisory Committee - Mavis Curley, Ron Shay, Evelyn Gilla, Russell Little, Hazel Little and 'Mrs King'.[154] The appellant's evidence was that:[155]
And they expressed a concern to me about the antisocial behaviour of some of the Yugunga-Nya people would be detrimental if everybody in ‑ and everybody knew about the hotel ownership. They expressed concern to me that there would be pressure on the staff of the hotel from Yugunga-Nya people when they visited Geraldton or for those people who were Yugunga-Nya living in Geraldton.
What sort of pressure?---Demands for money. Demands for food. Demands for alcohol.
So what was the decision?---Decision was to basically keep it inhouse in the advisory committee level not to disseminate that out to the general Yugunga-Nya group. There was no benefit for the Yugunga‑Nya to be known as the owners in the general community either. So I agreed for their suggestion.
[154] Trial ts 443.
[155] Trial ts 444.
The appellant knew that some 'shares in the Freemasons Hotel' were available, and approached a lawyer who advised that, if he was going to start a business enterprise, it was better to do so through a company. The appellant asked his accountant to set up a proprietary limited company with one shareholder, being the appellant as Trustee for the YNP Trust. The appellant said that he did not have anything to do with filling out the registration forms and did not know of ACN Direct Pty Ltd or Rodney Hinchcliffe (who signed the form referred to at [27] above).[156]
Advisory Committee meeting of 30 March 2010
[156] Trial ts 414 ‑ 416.
The appellant gave evidence of attending a meeting of the Advisory Committee on 30 March 2010. Ron Shay, his brother Bill Shay, Hazel Little and Troy Little were present at the meeting. The main topic discussed at the meeting was the recent death of Ms Curley and that they were moving forward to buying into the Freemasons Hotel with Fawrkt. The appellant needed to get the Advisory Committee's views on whether to continue. The last the appellant saw of the minutes of that meeting was in the book of minutes given to Bulhari on the handover of documents. The minutes had not been disclosed by the prosecution.[157]
Purchase of units from Mr North and Mr Edwards
[157] Trial ts 487 ‑ 488.
In March 2010, the appellant caused Fawrkt to buy 56 units in the West Harbour Unit Trust from Mr North for $75,000. He personally loaned Fawrkt the money to buy those units as there was little money in the YNP Trust Account.[158]
[158] Trial ts 418 ‑ 419, 522 ‑ 523.
Later in 2010, the appellant caused Fawrkt to buy 84 units in the West Harbour Unit Trust from Mr Edwards for $120,000. The money for that purchase came from himself and Beachcroft. Beachcroft was the holding company for the appellant's financial planning business where he had 'put away' most of his money.[159]
[159] Trial ts 419.
The appellant said that he had a loan document drawn up. When asked who the parties to the loan document were, the appellant responded:[160]
Myself as Graham Greenaway and myself as trustee of the Yugunga-Nya Peoples' Trust and then myself as director shareholder of Beachcroft and myself as trustee of YNPT.
[160] Trial ts 420.
The appellant downloaded loan agreements from a legal database and used these to prepare the loan agreements referred to at [23] ‑ [25] and [30] ‑ [32] above. He did not obtain legal advice in relation to the form of the loan agreements. The 17 June 2010 loan agreement was made when the appellant was preparing to purchase Mr Edwards' shares. The loan agreements were witnessed by his administrative assistant. The reason the money was repayable on 30 April 2021 was because the lease of the Freemasons Hotel ended on that date. The appellant did not charge Fawrkt interest on the loans as he thought that would be earning a benefit through his activities as Trustee of the YNP Trust contrary to the terms of the YNP Trust Deed.[161]
26 June 2013 loan agreement
[161] Trial ts 420 ‑ 423, 516, 521.
By the time the 26 June 2013 loan agreement between Fawrkt and the appellant as Trustee of the YNP Trust was made, the appellant had been lending money to keep the Freemasons Hotel trading. The appellant had personally loaned Fawrkt about $206,000 and Beachcroft had loaned Fawrkt about $500,000 for Fawrkt's contributions to the operating expenses. By that time, Fawrkt had acquired 56 units from Mr North, 84 units from Mr Edwards and 84 units from Mr Wheatland and had an 80% interest in the West Harbour Unit Trust. As majority unit holder, Fawrkt could secure an amendment to the West Harbour Unit Trust deed to remove a restriction on the units being used as collateral, so that the YNP Trust could lend money to Fawrkt.[162]
[162] Trial ts 423 ‑ 425, 433, 442.
The appellant signed each page of the 26 June 2013 loan agreement for Fawrkt and for the YNP Trust. His signature was witnessed by Mr Ron Shay.[163]
Events on 9 March 2017
[163] Trial ts 426.
The appellant heard about the 9 March 2017 meeting of the Yugunga‑Nya community on that day. Someone called the appellant and told him that a 'breakaway group' were chasing the money and were going to write to NAB to shut down his access to the YNP Trust accounts. The appellant said that he moved about $180,000 from an account held by Yugunga‑Nya People Pty Ltd and about $1.4 million from the YNP Trust Account into the Fawrkt Account so the YNP Trust could keep operating. After that time, until his resignation as Trustee of the YNP Trust, he used the funds in the Fawrkt Account to pay operating expenses of the YNP Trust.[164]
Different versions of minutes
[164] Trial ts 448 ‑ 449, 451.
The appellant's evidence was that his usual procedure for taking minutes of Advisory Committee and community meetings was to go to the meeting with a laptop, iPad, and phone. He recorded the meeting on the iPad and phone. After the meeting, he drafted some 'preliminary minutes' in the evening. He emailed the preliminary minutes to his office, where staff would promulgate the minutes out to the members of the Advisory Committee. When he got back to his office in Geraldton, he wrote out some 'full minutes' from the recordings, which ended up in the book of minutes.[165]
[165] Trial ts 454; exhibit 13.
The appellant said that this process was followed for the minutes of the Advisory Committee meeting of 23 August 2010, referred to at [114] above. The appellant said:[166]
There's also, you know, the challenge that Ron Shay and Mavis Curley gave me, that they would like to have not allowed the general group of Yugunga-Nya people, especially the ones that were notorious for their anti-social behaviour, knowing about the Freemasons Hotel purchase. So in respect to that, the minutes that were sent to the attendees at the meeting were a redacted section. The full minutes that were given to Bulhari at the handover is the second lot of minutes, which incorporates that. Bulhari was at the ‑ at the changeover, was the new, incoming trustee. They were given those minutes.
So which ones did you give to your lawyers?---The first section. Because at that stage, I was still trustee.
Is that the one with or without the reference to the Freemasons?---It's the redacted version, so without.
And the ones with the Freemasons Hotel mentioned, they were kept at your office, were they?---They were kept in the book of minutes, yes.
In the book of minutes which you handed to Bulhari?---Correct.
[166] Trial ts 456.
The appellant also said that the passage quoted at [115] above was redacted from the minutes of the Advisory Committee meeting on 18 November 2011 that were produced to members of the Advisory Committee at the next meeting. This was because of 'concern about the antisocial behaviour of some of the members and the Yugunga-Nya [P]eople if they knew that the hotel was owned by' the YNP Trust.[167]
Cross-examination
[167] Trial ts 459.
The appellant maintained his account under cross-examination. He denied that Fawrkt was his company created for his own investment in the Freemasons Hotel.[168] The appellant denied that the 26 June 2013 loan agreement was just a device or sham to enable him to take money from the YNP Trust whenever he wanted and label it as a loan.[169]
[168] Trial ts 515.
[169] Trial ts 540, 553.
During cross-examination, the appellant accepted that he knew that using the YNP Trust fund to run his own business would be a serious breach of the Trust. He also accepted that he knew that he had a duty to act prudently and commercially when exercising his power to lend money. He knew that he could not invest money from the YNP Trust fund without consulting the Advisory Committee as required by the YNP Trust Deed.[170] He agreed that, if he had been a beneficial owner of Fawrkt, the 26 June 2013 loan agreement would represent a serious breach of the trust.[171]
[170] Trial ts 489 ‑ 490.
[171] Trial ts 538.
The appellant said that one of the reasons Fawrkt was established was to protect the YNP Trust from losing the tax advantage of its charity status by operating a commercial business.[172]
[172] Trial ts 526.
The appellant accepted that he had put in approximately $700,000 of his own money to support the running of the Freemasons Hotel and did so because he believed in the project.[173] The appellant explained that he believed the system was right for the training of the Yugunga-Nya People to 'broaden their outlook on life and give them a training to take themselves elsewhere away from their current predicament'.[174] However, he later said that none of the Yugunga-Nya People had been employed or trained during the time he operated the Freemasons Hotel.[175]
[173] Trial ts 533 ‑ 535.
[174] Trial ts 534.
[175] Trial ts 558.
The appellant accepted that he had never mentioned anything in relation to the YNP Trust to other unit holders in the West Harbour Unit Trust.[176]
[176] Trial ts 535.
The prosecutor put to the appellant that the reason the 26 June 2013 loan agreement referred to the purpose of the loan as the establishment of a business, without mentioning the Freemasons Hotel, was that he did not want Ron Shay (who witnessed the appellant's signatures on the agreement) to know about the Freemasons Hotel. The appellant said that Ron Shay did know about the Freemasons Hotel.[177]
[177] Trial ts 539 ‑ 540.
The appellant accepted that, in retrospect, the 26 June 2013 loan agreement did not provide adequate security for the ultimate loan amount of $2.9 million and was not a prudent or commercial agreement. However, this was not his view at the time of signing the 26 June 2013 loan agreement. He accepted that his view at the time of signing the agreement was based on his understanding that the 'lender and borrower had the same ownership as the trust' and that he would take a different view if Fawrkt was owned by a different person.[178] The appellant said that no repayments were made under the 26 June 2013 loan agreement up to the point he resigned as Trustee of the YNP Trust and director of Fawrkt.[179]
Evidence of David Watt
[178] Trial ts 544 ‑ 545.
[179] Trial ts 553.
The appellant called David Watt, a chartered accountant, who gave evidence as to the transfers of funds between the different entities shown in accounts. Generally, his evidence did not contradict the evidence of Mr Sim as to those matters.
Mr Watt did give evidence that it was possible to reconcile the different amounts owing under the 26 June 2013 loan agreement shown in the financial statements for the YNP Trust and Fawrkt.[180]
Character evidence
[180] Trial ts 611 ‑ 616; exhibit 44.
The appellant called four witnesses who gave evidence as to his general good character: Phillip Cooper, Jim Chown, Gregory Eastman and Adam Murszewski.
Ground 3: directions as to the elements of the fraud charge
It is convenient to begin by considering ground 3, which challenges the trial judge's direction as to the fraud offence charged in count 2 of the indictment. Count 2 was pleaded in the following terms:
On 26 June 2013 at Geraldton [the appellant], with intent to defraud, by deceit or fraudulent means gained a benefit, namely a loan agreement with the [YNP Trust], for the benefit of [Fawrkt].
That is an offence against s 409(1)(c) of the Code, which provides, 'Any person who, with intent to defraud, by deceit or any fraudulent means … gains a benefit, pecuniary or otherwise, for any person … is guilty of a crime'.
In the present case, the alleged benefit charged in count 2 was the 26 June 2013 loan agreement, which was a benefit for Fawrkt. There was no issue at trial or on appeal that the 26 June 2013 loan agreement was a benefit which the appellant gained for Fawrkt. The real issues at trial were whether the appellant gained that benefit for Fawrkt by deceit or any fraudulent means, and whether he did so with an intent to defraud.
Elements of the fraud offence
There are three elements to the offence created by s 409(1)(c) of the Code:[181]
1.The accused had an intent to defraud.
2.The accused, with that intent, engaged in deceit or employed fraudulent means.
3.The deceit or fraudulent means employed by the accused caused a person to gain a benefit, pecuniary or otherwise.
First element: intent to defraud
[181] Hunter v The State of Western Australia [2014] WASCA 184; (2014) 245 A Crim R 191 [36], [96], [109].
The term 'intent to defraud' in s 409(1) of the Code has its common law meaning.[182] It is notoriously difficult to state exhaustively what is involved in the concept of 'intent to defraud',[183] and it is unnecessary to attempt to do so in the present case. For present purposes it is sufficient to note that an accused will have an intent to defraud where he or she intends to deprive a person of something (including money, property or some lawful right, interest, opportunity or advantage) that has actual or potential economic value by dishonest means.[184] As noted at [159] below, the trial judge in the present case directed the jury in those terms and no complaint is made about that aspect of his Honour's direction in this appeal.
[182] Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215 [130], [154], [170]; Hunter [39].
[183] Bolitho [158].
[184] Hunter [39].
There is no scope for the operation of s 22 of the Code, which provides for a defence of honest claim of right, in relation to an offence against s 409(1) of the Code. This is because an intent to defraud, which would negate the defence under s 22, is an element of the offence created by s 409(1) of the Code. However, a person who has an honest claim of right to the property or benefit in issue will not have an intent to defraud within the meaning of s 409(1) of the Code.[185]
Second element: deceit or any fraudulent means
[185] Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445 [27] ‑ [28], [35], [165]; Hunter [46], [114].
'Deceit' means to induce a person to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. 'Any fraudulent means' encompasses other conduct falling outside the scope of 'deceit' which can properly be stigmatised as dishonest.[186]
Third element: causes any person to gain a benefit
[186] Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221 [13] ‑ [14]; Hunter [37], [99], [110].
The State must prove that a person gained a benefit and that the benefit was gained by deceit or any fraudulent means.
This requires the State to prove that the deceit or fraudulent means employed by the accused was a factual and legal cause of the person gaining the relevant benefit. Factual causation, at least ordinarily, means that the deceit or fraudulent means were a necessary condition for the gaining of the benefit by the relevant person. That is, the State must, at least ordinarily, prove that the person would not have gained the relevant benefit but for the deceit or fraudulent means. Legal causation means that the deceit or fraudulent means substantially or significantly contributed to the person gaining the relevant benefit. It is not necessary for the State to prove that the deceit or fraudulent means was the sole cause of the person gaining the relevant benefit.[187]
Trial judge's directions
[187] Skelly v The State of Western Australia [2020] WASCA 3 [33] ‑ [39].
The trial judge directed the jury that, to prove the fraud offence charged in count 2, the State had to prove the following three elements beyond reasonable doubt:[188]
1.The appellant had an intention to defraud the YNP Trust.
2.With that intent, the appellant engaged in deceit or employed fraudulent means.
3.With that intent, and by that deceit or fraudulent means, the appellant gained a benefit, being the loan agreement for Fawrkt.
Directions as to first element: intent to defraud
[188] Trial ts 715.
The trial judge directed the jury that the first element was a subjective element that required the jury to make a finding as to the appellant's subjective state of mind. His Honour directed that whether the appellant's state of mind was reasonable or not was irrelevant, and negligence or carelessness was not sufficient. The trial judge directed the jury that:[189]
An intention to defraud includes an intention to deprive a person of something that is of actual or potential economic value by dishonest means. And the question of whether the means are dishonest is to be, again, decided by the standards of ordinary, decent people.
[189] Trial ts 715 ‑ 716.
The trial judge directed the jury that the identity of the person defrauded is not an element of the offence which the State had to prove. His Honour directed that the defence of honest claim of right did not arise because an intention to defraud is an element of the offence charged. However, an honest claim of right to the property in issue could negative an intent to defraud and was still relevant. If there was an honest claim of right, there could not be any intention to defraud, and a person can have an honest belief with respect to property, even if dishonest means were used to access the property.[190]
[190] Trial ts 716.
The judge gave the jury a Liberato direction[191] in relation to the appellant's evidence as to his intention. His Honour also directed that the State had to prove that the only rational and reasonable inference was that the appellant had an intent to defraud.[192]
Directions as to second element: deceit or any fraudulent means
[191] See Liberato v The Queen (1985) 159 CLR 507, 515.
[192] Trial ts 716
As to the second element of the offence charged in count 2, the trial judge directed the jury that:[193]
Deceit requires that [the appellant] engaged in conduct that induced a person to believe something to be true, which is in fact false, and to have done so knowing or believing that the thing was false. The identity of the person deceived is not an element of the offence that the State has to prove. Any fraudulent means encompasses other conduct falling outside of the scope of deceit and which can be properly stigmatised as dishonest. Again, the question of whether conduct is dishonest is to be decided by the standards of ordinary, decent people, and it includes [an] act of concealment of the true state of affairs.
Directions as to third element: causes any person to gain a benefit
[193] Trial ts 716 ‑ 717.
The trial judge gave the following directions as to the third element of the fraud offence charged in count 2:[194]
The third element is that with an intention to defraud by the deceit or fraudulent means, the accused gained a benefit and in this case the State position or State case is that [Fawrkt] gained a benefit and the State position is that [Fawrkt] was [the appellant's] company.
[194] Trial ts 717.
The trial judge noted that the appellant accepted that Fawrkt gained a benefit but his position was that Fawrkt was an investment vehicle and the benefit was the YNP Trust's benefit and not his benefit. The trial judge then continued his direction as to the third element:[195]
The accused's deceit or fraudulent means must, in fact, have gained a benefit for another person which includes a corporate person ‑ in this case, it was alleged that it was [Fawrkt]. To establish legal causation, an accused's deceit or fraudulent act must be a substantial or significant cause of the detriment.
Appellant's submissions
[195] Trial ts 717.
The appellant contends that the prosecution case in relation to count 2 was that the benefit gained for Fawrkt was the 26 June 2013 loan agreement, and that the fraudulent means used was the signing of the loan agreement itself. The prosecutor, in his closing submissions, did not contend that the appellant used deceit to gain the benefit of the 26 June 2013 loan agreement for Fawrkt.[196]
[196] Appellant's submissions, pars 62 ‑ 63.
The appellant says that the prosecutor did not explain how or why the act of signing the loan agreement amounted to fraudulent means or identify the appellant's alleged state of mind that rendered that act fraudulent. Rather, the prosecutor had submitted that 'the loan agreement was a sham that was intended to disguise theft from the trust as loans'.[197]
[197] Appellant's submissions, par 64.
The appellant says that the trial judge did not give the jury any directions that would have assisted them to identify:[198]
(a)the signing of the loan agreement as the act that the State relied on to constitute 'fraudulent means'; or
(b)the knowledge, belief or intent that the State relied on to characterise those means as fraudulent.
[198] Appellant's submissions, pars 66 ‑ 67.
The trial record does not support the conclusion that the jury must have entertained a doubt about the appellant's guilt of the stealing offences charged in the indictment. The verdicts of guilty were not unreasonable and were supported by evidence that the jury was entitled to accept.
Our review and assessment of the whole of the evidence does not leave us with a reasonable doubt as to the appellant's guilt of the stealing offences that cannot be assuaged by having regard to the jury's advantages in having seen and heard the evidence at trial.
For the above reasons, ground 5 is not established. It is not appropriate to enter a verdict of acquittal on the stealing charges. The appropriate order is that there be a new trial on those counts.
Ground 1: admissibility of documentary evidence
Given the above conclusions, it is strictly unnecessary to determine ground 1, which alleges that the trial judge made a wrong decision on a question of law in refusing to admit statements recorded in a document into evidence under s 79C of the Evidence Act 1906 (WA). However, it is appropriate for this court to deal with that ground, as the question of the admissibility of that evidence may arise on retrial.
Statutory context
Section 79C(1) of the Evidence Act relevantly provides:
Subject to subsection (2), in any proceedings where direct oral evidence of a fact … would be admissible, any statement in a document and tending to establish the fact … shall, on production of the document, be admissible as evidence of that fact … if the statement -
(a)was made by a qualified person; or
(b)directly or indirectly reproduces or is derived from …
(i)information in one or more statements, each made by a qualified person[.]
'Statement' is relevantly defined in s 79B of the Evidence Act to include any representation of fact whether made in words or otherwise. 'Document' is relevantly defined to mean any record of information.
Section 79B relevantly defines the term 'qualified person' to mean a person who:
[H]ad, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement[.]
Section 79C(1) is expressly subject to s 79C(2) of the Evidence Act. Section 79C(2) provides, generally, that where a statement referred to in s 79C(1) is made by a qualified person, or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness. That general provision is subject to a number of exceptions, one of which is that the qualified person is dead (s 79C(2)(a)).
Section 79C(3) of the Evidence Act provides:
This section makes a statement admissible notwithstanding —
(a)the rules against hearsay; or
(b)the rules against secondary evidence of the contents of a document; or
(c)that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or
(d)that the statement is in such a form that it would not be admissible if given as oral evidence,
but does not make admissible a statement which is otherwise inadmissible.
Section 79C(4) limits the operation of s 79C(1), s 79C(2) and s 79C(2a) in criminal proceedings by providing that, notwithstanding those provisions:
[I]n any criminal proceedings a statement in a document which was made in the course of or for the purpose of -
(a)the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings; or
(b)an investigation which led to the discovery of facts constituting or being constituents of the alleged offence; or
(c)the preparation of a defence to a charge for any offence; or
(d)the preparation of the case of the prosecution in respect of any offence,
shall not be rendered admissible as evidence by this section.
Section 79C(5)(a) provides that, for the purposes of s 79C, a court may:
[F]or the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of [sic] contents of the document in which the statement is contained, or from any other circumstances[.]
Section 79C(6) gives the court a discretion to exclude a statement in a document from evidence, in the following terms:
For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -
(a)may necessitate undue consumption of time; or
(b)may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.
Section 79C(2a) and s 79C(2b) of the Evidence Act make provision for the admission of statements in business records. Although this aspect of s 79C was the focus of much of the argument at trial, the ground of appeal is advanced by reference to s 79C(1) of the Evidence Act.
Under s 79D(1) of the Evidence Act:
In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by section 79C regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement[.]
Reference is then made to a number of specified matters that can be taken into account in assessing the weight to be given to evidence admitted under s 79C of the Evidence Act.
Section 79E of the Evidence Act relevantly provides:
Where in any proceedings a statement is admitted as evidence under section 79C but the qualified person is not called as a witness in the proceedings -
(a)any evidence -
(i)which, if that person had been so called, would have been admissible for the purpose of destroying or supporting his credibility as a witness shall be admissible for that purpose in those proceedings; or
(ii)tending to prove that, whether before or after that person made that statement, he made another statement (whether orally or in a document or otherwise) inconsistent therewith shall be admissible for the purpose of showing that he has contradicted himself,
but nothing in subparagraph (i) or (ii) shall enable evidence to be given of any matter of which, if the person in question had been called as a witness and had denied that matter in cross‑examination, evidence could not have been adduced by the cross-examining party[.]
The proposed evidence
By application in an appeal dated 7 July 2022, which was referred to the hearing of the appeal, the appellant seeks leave to adduce an affidavit sworn by Rodney Charles Carter as additional evidence in the appeal. Annexed to that affidavit, Mr Carter produces a proof of the evidence that he would have given had he been called as a witness at the appellant's trial. He was not called to give that evidence by reason of the trial judge's ruling, which ground 1 seeks to impugn.
At the hearing of the appeal, Senior Counsel for the appellant identified the parts of the proof of evidence on which the appellant sought to rely in support of ground 1.[235] Senior Counsel for the respondent objected to the admissibility of some parts of that proof.[236] Senior Counsel for the respondent also cross-examined Mr Carter on his affidavit.[237]
[235] Appeal ts 47 ‑ 48, 134.
[236] Appeal ts 133.
[237] Trial ts 45 ‑ 47.
The following facts emerge from the parts of Mr Carter's evidence on which the appellant seeks to rely, having regard to the respondent's objections.
Mr Carter was the Program Coordinator of ISPL.[238] ISPL was appointed Trustee of the YNP Trust in April 2018 after Mr Carter was asked by a community meeting of the Yugunga‑Nya People and the Advisory Committee to take over from Bulhari.[239]
[238] Proof, par 6; this par was not relied upon by the appellant.
[239] Proof, pars 4 ‑ 5.
Mr Carter was asked by Andrew White, the Director of ISPL, to undertake an investigation into various matters including concerns about the diminution of funds of the YNP Trust since the appellant's resignation as Trustee on 10 July 2017.[240]
[240] Proof, par 9.
Mr Carter immediately met with the appellant in the appellant's office on 25 April 2018.[241] This was the first time Mr Carter had met the appellant. Prior to this meeting, Mr Carter was aware from his reading of a newspaper article that police had an interest in the affairs of the YNP Trust. Mr Carter was not otherwise aware of any police involvement prior to the meeting. During the meeting, which lasted about half a day, the appellant mentioned that his premises had been searched by police a few months earlier.[242]
[241] Proof, par 10, first sentence.
[242] Appeal ts 45 ‑ 46.
Mr Carter met with Ron Shay a couple of days after his meeting with the appellant. Mr Carter knew Mr Shay from about the late 1980s. Mr Carter asked Mr Shay to tell Mr Carter about what he knew about the Freemasons Hotel. Mr Carter did not inform Mr Shay of what the appellant had told him. There was nothing said about police involvement in the affairs of the YNP Trust during this meeting.[243]
[243] Proof, par 12; appeal ts 45 ‑ 47.
Mr Carter prepared a report for the YNP Trust which was tabled and discussed at an Advisory Committee meeting on 13 June 2018.[244] The report describes a meeting with the appellant on 25 April 2018 and the ownership structure of the Freemasons Hotel business in the following terms:
[T]he ownership is clearly with the YNPT through its 100% ownership of Fawrkt Pty Ltd, who in turn soley [sic] owns West Harbour Pty Ltd, who in turn soley [sic] owns West Harbour Unit Trust, who trades as the Freemasons Hotel.
[244] Proof, par 22.
The report then contains the following statements:
When asked why the Freemasons ownership was not widely known among YNPT and the Yugunga people, I was advised that in discussion with the then Trustee Advisory Committee (TAC) that while it was a good investment and would provide training and employment opportunities, general knowledge of ownership would create issues with members wanting free meals, alcohol and accommodation.
Verification with Ron Shay
I then met with Ron. I have known him for many years, and appreciate his standing in the community.
Ron advised his relationship with [the appellant] goes back to 2004 when he was the Settlor of the Trust.
Ron confirmed the legal structure and Freemasons Hotel acquisition was endorsed by the Trustee Advisory Committee. He also confirmed [the appellant's] reasons for not making the ownership widely known, though no minutes are available to confirm. (original emphasis)
At trial, Mr Carter's report was part of MFI 1, referred to at [98] above.
The trial judge's evidentiary ruling
At trial, defence counsel anticipated producing documents which included Mr Carter's report under s 79C of the Evidence Act, relying on the business records aspect of that provision.[245] The prosecutor objected to the admission of the document under s 79C of the Evidence Act.[246]
[245] Trial ts 312 ‑ 318.
[246] Trial ts 318 ‑ 320.
In ruling on the objection, the trial judge indicated that the potentially admissible part of Mr Carter's report was confined to 'the purported statements from Mr Ron Shay who is deceased and obviously not able to give evidence'.[247] The judge said, in effect, that it was not clear from the statement in the report:[248]
1.when and how Mr Shay spoke to Mr Carter;
2.what Mr Shay knew; and
3.what the 'legal structure' referred to by Mr Shay was.
[247] Trial ts 326.
[248] Trial ts 327.
The trial judge also raised a concern about whether the statement as to not wanting the ownership of the Freemasons Hotel to be widely known could be reconciled with the statement that the legal structure was endorsed by the Advisory Committee.[249] The judge then said:[250]
In my view, the document itself is too amorphous to establish anything that could probably be established. Even if I'm wrong, and I am not finding that the documents stand as a business record, or admissible otherwise under the provisions of section 79C, I would reject the application to tender the document on the basis that it's likely to ‑ and it's a higher finding than the test, which is it may create confusion or may mislead the jury. The statement is ambiguous.
It would require clarification and explanation and to admit the statement as evidence of its truth, as I understand this ‑ the basis upon which that statement, under the heading Verification of Ron Shay goes, would confuse the jury.
[249] Trial ts 327 ‑ 328.
[250] Trial ts 328.
The trial judge adopted the following observation of McLure JA, in Cavill v The State of Western Australia,[251] that the preservation of the primacy of direct oral evidence on central issues in criminal cases should be preserved save in exceptional circumstances. The trial judge concluded:[252]
And I'm not satisfied, given the difficulty of establishing what that statement actually means, that this [is] in any way an exceptional circumstance and the application to tender MFI 1 is refused in whole or in part. And when I say in whole or in part, I mean the entirety of the document or part of the document.
Grounds of appeal and notice of contention
[251] Trial ts 328 referring to Cavill v The State of Western Australia [2008] WASCA 108 [41].
[252] Trial ts 328.
Ground 1 of the appeal in effect contends that the trial judge erred in the exercise of the discretion conferred by s 79C(6) of the Evidence Act in refusing to admit the statement in Mr Carter's report into evidence by:
(a) concluding that the evidence should not be admitted due to the absence of exceptional circumstances;
(b) failing to engage with the balancing process that is required by s 79C(6), and failing to determine whether the probative value of the evidence sought to be adduced was outweighed by a consideration of the matters in s 79C(6)(b);
(c) failing to properly appreciate the probative value of the evidence;
(d) failing to properly appreciate the potential for the evidence to create undue prejudice, confuse the issues, or mislead the jury; and/or
(e) making a decision that was plainly unreasonable or unjust.
By notice of contention, the State seeks to uphold the trial judge's decision that the statement in Mr Carter's report was inadmissible because:
1.1. of the application of s 79C(4) of the [Evidence Act];
1.2. Mr Shay was not a 'qualified person' with respect to the statement; or
1.3. the statement was an inadmissible statement of conclusion rather than an otherwise admissible statement of fact.
As the questions raised by the State's notice of contention are logically anterior to a consideration of the exercise of the discretion under s 79C(6), we will deal with those issues first.
Application of s 79C(4) to statements in Mr Carter's report
The State submits that s 79C(4)(a) applies on the basis that the statement in Mr Carter's report was made in the course of, or for the purpose of, the investigation of facts constituting or being constituents of the alleged offence being dealt with in the criminal proceedings. The State says that Mr Carter was investigating the ownership of Fawrkt. The question of whether Fawrkt was a company held personally by the appellant or was held by him in his capacity of Trustee was directly relevant to whether there had been a fraudulent conversion of the YNP Trust Fund as charged in the indictment. The State contends that Mr Carter's investigation into the ownership of Fawrkt was therefore an investigation into a fact which constitutes, or is a constituent of, the stealing offences charged in the indictment.[253]
[253] Appeal ts 104 ‑ 107.
For the following reasons, we do not accept that submission.
A 'constituent' of an alleged offence, for the purposes of s 79C(4)(a), is a fact which is an element of an offence or defence.[254]
[254] Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527[237].
In this case, the relevant constituent of the offence of stealing was a conversion of the YNP Trust funds, constituted by the transfer of those funds from the YNP Trust Account to the Fawrkt Account inconsistently with the rights of the Beneficiaries under the YNP Trust Deed. There is nothing to indicate that Mr Carter was investigating the transfer of funds from the YNP Trust Account.
The question of whether the appellant owned the share in Fawrkt beneficially or held that share on trust under the terms of the YNP Trust Deed was certainly a fact relevant to the question of whether there was a conversion of funds. As we have discussed above, proof that the appellant did not hold the share in Fawrkt on trust under the terms of the YNP Trust Deed was an essential step in proving that the appellant had converted the funds. But the ownership of the share was not a fact constituting or an element of the offence of stealing or any defence to the stealing charges.
Mr Carter was not investigating the transfer of the funds out of the YNP Trust Account, which was the act of conversion that constituted an element of the stealing offences charged in the indictment. He was investigating the ownership of Fawrkt. The ownership of Fawrkt, while of critical relevance to whether there had been a conversion, was not itself a fact constituting or a constituent of the charged stealing offences.
Therefore, in our view the statement in Mr Carter's report was not made in the course of, or for the purpose of, the investigation of facts constituting or being constituents of the alleged offences being dealt with in the criminal proceedings for the purposes of s 79C(4)(a) of the Evidence Act. Section 79C(4) was not engaged in the manner contended for by the State so as to preclude the statement in Mr Carter's report being admissible under s 79C(1) of the Evidence Act.
That conclusion is not affected by the fact that, at the time Mr Carter conducted his investigation, a police investigation had commenced and Mr Carter, as well as the appellant and Mr Shay, were aware of a police investigation (see [118] ‑ [119] and [288] above). While Mr Carter may have been aware of a police investigation, he was not conducting that investigation and was not preparing his report for the purposes of that investigation.
At the hearing of the appeal there was debate as to whether the decision of the Court of Criminal Appeal in Carattiestablishes that the reference in s 79C(4) to an 'investigation' is to an investigation for the purposes of, or in contemplation of, criminal proceedings.[255] Given the above conclusions, it is unnecessary to resolve that question in this appeal.
Application of s 79C(1) to statements in Mr Carter's report
[255] See Caratti [218] ‑ [220], [224], [227], [237].
The State also contends that the statement in Mr Carter's report is not admissible under s 79C(1) because Mr Shay was not a qualified person with respect to the statement and the statement was an inadmissible statement of conclusion. For the following reasons we do not accept that contention.
In determining the admissibility of a statement in a document under s 79C of the Evidence Act, the following questions may be considered:
1.What is the relevant fact, of which direct oral evidence would be admissible?
2.Does the statement in the document tend to establish that fact?
3.Was the statement in the document made by a qualified person (ie a person who had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement)?
4.If the answer to question 3 is 'no', does the statement in the document directly or indirectly reproduce, or is the statement directly or indirectly derived from, information in one or more statements, each made by a qualified person?
5.Would the statement in the document be inadmissible for reasons other than those identified in s 79C(3)(a) ‑ s 79C(3)(d) of the Evidence Act?
Facts which oral evidence would be admissible to establish
The appellant identifies the following facts which the statement tends to establish:[256]
a.Mr Shay, as a member of the [Advisory Committee], was at all relevant times aware of the legal structure of, and the fact that the Freemasons Hotel had been acquired by the Trust.
b. Mr Shay, as a member of the [Advisory Committee], had 'endorsed' the acquisition of the Hotel by the Trust.
c. The [Advisory Committee] had, in Mr Shay's presence, endorsed the acquisition.
d. Other members of the [Advisory Committee] knew that the Freemasons Hotel had been acquired by the Trust.
e. Mr Shay, as a member of the [Advisory Committee], had known that the Trust's ownership of the Hotel was not 'widely known', and of the appellant's reasons for not making it widely known.
The substance of the facts referred to at [a] ‑ [c] above was that the appellant had consulted with and obtained the recommendation of the Advisory Committee, or at least some of its members, in relation to an acquisition of an interest in the Freemasons Hotel at the time of the acquisition. It will be convenient to focus on that fact in these reasons.
[256] Appellant's Reply to Respondent's Notice of Contention.
Direct oral evidence of the appellant's consultation with the Advisory Committee, or a member of the Advisory Committee, could have been given by a person who was present at the time of the consultation. That evidence would have been relevant to prove conduct of the appellant in 2010 which might convey to a reasonable person an intention that the share in Fawrkt be held under the terms of the YNP Trust Deed. It would also be evidence of the appellant's conduct which could support a reasonable inference that he subjectively believed that he held the share in Fawrkt on trust under the terms of the YNP Trust Deed. Evidence of the fact of the appellant's consultation with the Advisory Committee would therefore have been directly relevant to proof of the facts referred to at [217] ‑ [218] above, which were critical to determination of the stealing charges.
Whether the statement in the document tends to prove the relevant fact
It is established that s 79C(1) applies to statements made by a qualified person (including statements tendered for the truth of their contents) recorded in a document by a third party.[257]
[257] Beamish v The Queen [2005] WASCA 62 [147] ‑ [168]; Cavill [36], [97].
The relevant fact that the appellant sought to establish was that he had consulted with and obtained the recommendation of the Advisory Committee, or at least some of its members, in relation to an acquisition of an interest in the Freemasons Hotel at the time of the acquisition. The statement in Mr Carter's report which relates to that fact is:
Ron advised his relationship with [the appellant] goes back to 2004 when he was the Settlor of the Trust.
Ron confirmed the legal structure and Freemasons Hotel acquisition was endorsed by the Trustee Advisory Committee.
In our view, this statement does tend to prove that the appellant consulted with and obtained the recommendation of the Advisory Committee in relation to an acquisition of an interest in the Freemasons Hotel at the time of the acquisition. It is true that the statement does not say when the endorsement took place, but it may be taken to be implicit that it occurred at or about the time of the acquisition of the Freemasons Hotel. Although the statement quoted above does not state what the legal structure was, the statement can be read in the context of the previous part of Mr Carter's report which explains what the legal structure was (see [290] above).
Whether the statement in the document was made by a qualified person
In our view, the statement in Mr Carter's report was not made by a qualified person. The matters dealt with by the statement concern the appellant's consultation with the Advisory Committee at about the time of the acquisition of an interest in the Freemasons Hotel business. There is no basis for thinking that the author of the report was or might have been present when that consultation took place. The person who wrote the statement quoted at [314] above was not a person who had, or who might reasonably be supposed to have had, any personal knowledge of the matters dealt with by the statement. Mr Carter was not a 'qualified person' for the purposes of s 79C(1) and s 79B of the Evidence Act.
Whether the statement was derived from the statement of a qualified person
The statement quoted at [314] above is a statement of what Mr Ron Shay told Mr Carter at their meeting. As such, the statement in Mr Carter's report reproduces or is derived from information in statements made by Mr Shay.
We do not accept the State's submission that Mr Shay was not a qualified person. For the purposes of deciding that question, the court may, under s 79C(5)(a), draw any reasonable inference from the form or contents of Mr Carter's report or from any other circumstances.
The other evidence adduced at trial, including the minutes of the Advisory Committee meetings, shows that Mr Shay was a long‑standing member of the Advisory Committee. The minutes also show that he regularly attended Advisory Committee meetings from 2010 ‑ 2013 when Fawrkt acquired units in the West Harbour Unit Trust.[258] A reasonable inference to be drawn from the statement in Mr Carter's report is that Mr Shay had personal knowledge of the appellant's consultation with the Advisory Committee contained in that statement. At the very least, Mr Shay is a person who may reasonably be supposed to have had that personal knowledge at the time he made the statement reproduced or summarised in Mr Carter's report. Mr Shay was a qualified person as defined in s 79B of the Evidence Act in relation to the statement quoted at [314] above.
[258] Exhibit 13; exhibit 40.
The State's submissions as to Mr Shay's status as a qualified person are generally focussed on the absence of other evidence that the appellant consulted the Advisory Committee about the Freemasons Hotel or on other evidence indicating that the appellant did not do so. In our view, that is a matter which goes to the question of whether the evidence should be accepted as correct, rather than whether the evidence is admissible. The application of s 79C(1) to a statement in a document is to be determined without any conclusion as to whether or not the correctness of the statement will be ultimately accepted, at least where it can reasonably be supposed that the maker of the statement was speaking truthfully.[259] That is so in the case of Mr Shay. Further, if the consultation with the Advisory Committee described in the statement occurred then Mr Shay may at least be reasonably supposed to have had personal knowledge of that fact. It could at least be reasonably supposed that Mr Shay was speaking truthfully.
Whether the statement is inadmissible for reasons not specified in s 79C(3)
[259] Cf Beamish [179] ‑ [180].
We also do not accept the State's submission that the statement quoted at [314] above is inadmissible because of its conclusionary nature. The statement concerns a fact as to consultation with, and a recommendation of, the Advisory Committee, made by a person who may reasonably be supposed to have personal knowledge of those matters. Mr Shay, if he had been alive, could have given that evidence as direct oral evidence.
In our view, the statement quoted at [314] above is not inadmissible for any reason not identified in s 79C(3)(a) ‑ s 79C(3)(d) of the Evidence Act. The statement is not inadmissible because it is a conclusionary statement. It is unnecessary to consider whether a conclusionary statement would be 'in such a form that it would not be admissible if given as oral evidence' for the purposes of s 79C(3)(d) of the Evidence Act.
Conclusion as to the application of s 79C(1)
For the above reasons, in our view s 79C(1) of the Evidence Act applied to the statement quoted at [314] above. The statement in Mr Carter's report was therefore admissible under s 79C of the Evidence Act, subject to the exercise of the court's discretion to reject the statement under s 79C(6) of that Act.
As Mr Shay was the qualified person who had died prior to the appellant's trial, the statement in Mr Carter's report could be admitted under s 79C(2)(a) without Mr Shay being called as a witness.
Exercise of the discretion under s 79C(6)
Having rejected the State's notice of contention, we turn to ground 1 of the appellant's appeal, which alleges error in the exercise of the trial judge's discretion under s 79C(6) of the Evidence Act.
The formation of the opinion referred to in s 79C(6) is a condition for the existence of the discretion conferred by that subsection. Forming that opinion requires the court to take three steps in a jury trial where it is not suggested that the admission of the evidence or the determination of its admissibility may necessitate undue consumption of time. First, the court must assess the probative value of the statement sought to be admitted. Second, the court must identify whether the admission of the evidence may create undue prejudice, confuse the issues or mislead the jury. Third, it is necessary to assess whether the probative value of the evidence is outweighed by any undue prejudice, confusion of the issues or misleading effect which its admission may create.
Had we been exercising the discretion for ourselves with the benefit of the submissions made in this appeal, we would not exercise the discretion to reject the evidence under s 79C(6) of the Evidence Act. In our view, the probative value of the evidence, in its tendency to prove the critical facts referred to at [217] ‑ [218] above, is (without regard to other evidence admitted at the trial) of material weight. The contention of the State on appeal is that it is prejudiced by the vagueness of statement and the fact that it is denied the opportunity to challenge the statement of 'a potentially biased witness given his association with' the appellant about a fact that is contrary to all the other evidence.[260] We accept that this is a prejudice to the State. However, the State would still be able to adduce evidence to support an allegation of bias, pursuant to s 79E(a)(i) of the Evidence Act. It could still point to other evidence which it contends contradicts Mr Shay's statement. On balance, we would not be persuaded that the probative value of the evidence is outweighed by its prejudicial effect.
[260] Appeal ts 116.
However, the first question on appeal is not how this court would exercise the discretion, but whether material error has been demonstrated in the exercise of discretion by the trial judge.
Allowing for the fact that the judge gave ex tempore reasons, we would infer from those reasons that his Honour did take the steps referred to at [326] above. His Honour's reasons refer to the ambiguity of the statement as robbing it of any real probative value and being likely to cause confusion or mislead the jury. His Honour implicitly found that the probative value was outweighed by the confusing and misleading nature of the evidence. Importantly, the probative value of the evidence was never explained to the trial judge in the terms described above. Given the limited submissions as to the probative value of the statement put by trial counsel (which at their highest contended that the documents added to the weight of the defence position that the Freemasons Hotel was endorsed by the Advisory Committee), we are not persuaded that the opinion formed by the trial judge on the material before him was legally unreasonable.
We are also not satisfied that the trial judge's reference to 'exceptional circumstances' demonstrates error in the exercise of the discretion. That may be seen to be a statement of how the discretion under s 79C(6) is to be exercised after the opinion required by s 79C(6) has been formed. It may be seen as indicating that it would be an exceptional case where evidence was not rejected after the opinion required to enliven the discretion under s 79C(6) has been formed. We would agree with that conclusion.
Therefore, in our view, ground 1 of the appeal is not established.
As the appeal will be allowed on other grounds, this conclusion that ground 1 is not established is of little practical effect. The trial judge's ruling will not be binding on the parties or the judge on retrial. It will be open to the appellant on retrial to seek to tender the statement in Mr Carter's report under s 79C of the Evidence Act. The judge presiding over the retrial should determine the exercise of the discretion under s 79C(6) for himself or herself having regard to the arguments and material which the appellant and the State then advance.
Proviso
The State only sought to invoke the 'proviso' in s 30(4) of the Criminal Appeals Act in relation to count 34 and in relation to grounds 1, 2 and 3.[261] As ground 4 has been established, it is unnecessary to consider the State's submissions as to the proviso if that ground had failed.
[261] Respondent's submissions, par 67.
Orders
As the appeal notice was filed one day late, the appellant requires an extension of time in which to appeal. As the very short delay has been adequately explained, an extension of time should be granted. Leave to appeal should be granted, including on the grounds which have not been established or which it has been unnecessary to consider, on the basis that they were reasonably arguable. The appellant's application to adduce additional evidence in the appeal in relation to ground 1 should be allowed in relation to the evidence referred to at [286] ‑ [291] above.
Therefore, we would make the following orders in the appeal:
1.The appellant's application for an extension of time in which to appeal is granted.
2.Leave to appeal is granted on all grounds of appeal.
3.The appellant's application in an appeal dated 7 July 2022, seeking leave to adduce additional evidence in the appeal, is granted in relation to the evidence referred to at [286] ‑ [291] of the court's reasons.
4.The appeal is allowed.
5.The appellant's convictions of the offences charged in District Court of Western Australia indictment GER IND 66 of 2020 (Indictment) are set aside.
6.A judgment of acquittal is entered for the offence charged in count 2 of the Indictment.
7.A new trial is ordered for the offences charged in counts 1 and 3 ‑ 34 of the Indictment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
16 DECEMBER 2022
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