Hill v The Queen

Case [2021] SASCA 83

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HILL v THE QUEEN

[2021] SASCA 83

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Blue)

26 August 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS

The appellant appeals against her conviction of five counts of dishonestly obtaining a financial advantage from a Commonwealth entity in contravention of sections 134.2(1) and 11.2A(1) of the Criminal Code (Cth).

The appellant and her co-accused, Todd Ryan, were charged with jointly committing the offences. The prosecution ran the case at trial on the basis that the appellant and Ryan entered into an agreement to commit the offences and committed the offences jointly. Ryan was also charged with an additional 10 counts of obtaining or attempting to obtain a financial advantage from a Commonwealth entity alleged to have been committed before or contemporaneously with the joint counts.

The appellant appeals against her convictions on essentially three grounds:

1The trial Judge erred as a matter of law in failing to direct the jury to consider the case against her separately from that against Ryan, to identify that separate case and the evidence inadmissible against her and to give adequate directions as to the application of the law to that separate case.

2The trial Judge erred as a matter of law in directing the jury that it was not open to return different verdicts in relation to the jointly charged accused.

3The trial Judge erred in failing to direct the jury as to the permissible and impermissible use it could make of the prosecution submission that the appellant’s account of failing to make expected enquiries of her partner Ryan after the police attendance was indicative of consciousness of guilt of the offending.

Held by the Court (allowing the appeal):

1The jury was not adequately directed as to the evidence that was admissible against Ryan but not admissible against the appellant or as to differences between the circumstantial case against Ryan and the circumstantial case against the appellant (at [150], [169], [171] and [172]).

2Observations concerning the trial Judge’s direction to the jury that it was not open to return different verdicts in relation to the jointly charged accused (at [184]-[187]).

3Observations concerning the trial Judge’s direction to the jury as to the prosecution submission that the appellant’s account of failing to make expected enquiries of Ryan after the police attendance was indicative of consciousness of guilt of the offending (at [202]-[217]).

4Appeal allowed. Appellant’s convictions set aside. Matter remitted for new trial (at [218]).

Criminal Code Act 1995 (Cth) 11.2A, 134.2, referred to.
Edwards v R (1993) 178 CLR 193; Elomar v R (2014) 316 ALR 206; King v The Queen (1986) 161 CLR 423

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Hill v The Queen [2021] SASCA 83
Case
[2021] SASCA 83
Decision Date

CaseChat Overview and Summary

The appellant, Hill, appealed her conviction for five counts of dishonestly obtaining a financial advantage from a Commonwealth entity. She and her co-accused, Ryan, were charged with jointly committing these offences, with the prosecution alleging they had entered into an agreement to do so. Ryan faced additional charges not relevant to this appeal. The appeal was heard by the Court.

The central legal issues before the Court concerned alleged errors by the trial judge. Specifically, the appellant argued that the judge failed to adequately direct the jury to consider her case separately from Ryan's, to identify evidence inadmissible against her, and to provide sufficient guidance on the application of the law to her distinct case. Further, the appellant contended the judge erred in directing the jury that it could not return different verdicts for jointly charged accused and in failing to clarify the permissible and impermissible use of the prosecution's submission that her inaction regarding inquiries of Ryan indicated consciousness of guilt.

The Court allowed the appeal, finding that the jury had not been adequately directed regarding evidence admissible against Ryan but not against the appellant, nor as to the differences in the circumstantial cases against each accused. The Court also made observations regarding the trial judge's direction that different verdicts could not be returned for jointly charged accused and concerning the direction on the appellant's alleged consciousness of guilt. Consequently, the appellant's convictions were set aside, and the matter was remitted for a new trial.

Orders

Orders of the court

The appellant appeals against her conviction of five counts of dishonestly obtaining a financial advantage from a Commonwealth entity in contravention of sections 134.2(1) and 11.2A(1) of the Criminal Code (Cth).

The appellant and her co-accused, Todd Ryan, were charged with jointly committing the offences. The prosecution ran the case at trial on the basis that the appellant and Ryan entered into an agreement to commit the offences and committed the offences jointly. Ryan was also charged with an additional 10 counts of obtaining or attempting to obtain a financial advantage from a Commonwealth entity alleged to have been committed before or contemporaneously with the joint counts.

The appellant appeals against her convictions on essentially three grounds:

1 The trial Judge erred as a matter of law in failing to direct the jury to consider the case against her separately from that against Ryan, to identify that separate case and the evidence inadmissible against her and to give adequate directions as to the application of the law to that separate case.

2 The trial Judge erred as a matter of law in directing the jury that it was not open to return different verdicts in relation to the jointly charged accused.

3 The trial Judge erred in failing to direct the jury as to the permissible and impermissible use it could make of the prosecution submission that the appellant’s account of failing to make expected enquiries of her partner Ryan after the police attendance was indicative of consciousness of guilt of the offending.

Held by the Court (allowing the appeal):

1 The jury was not adequately directed as to the evidence that was admissible against Ryan but not admissible against the appellant or as to differences between the circumstantial case against Ryan and the circumstantial case against the appellant (at [150], [169], [171] and [172]).

2 Observations concerning the trial Judge’s direction to the jury that it was not open to return different verdicts in relation to the jointly charged accused (at [184]-[187]).

3 Observations concerning the trial Judge’s direction to the jury as to the prosecution submission that the appellant’s account of failing to make expected enquiries of Ryan after the police attendance was indicative of consciousness of guilt of the offending (at [202]-[217]).

4 Appeal allowed. Appellant’s convictions set aside. Matter remitted for new trial (at [218]).

Background

Background to the litigation

Ryan has appealed against his convictions on counts 1 to 15. His appeal is yet to be heard. These reasons address the matter only from the perspective of the appellant. The issues and relevant facts on Ryan’s appeal may differ from those set out in these reasons for judgment in respect of the appellant. For example, facts that are common ground or not disputed as between the appellant and the Director on this appeal may not be common ground as between Ryan and the Director on his appeal.Background In May 2005 the business name “Capitalisation” was registered on the Business Name Register and an ABN was issued under Ryan’s name with a backdated April 2004 start date. In July 2005 Ryan commenced employment with the Australian Taxation Office. In June 2009 Ryan incorporated and became the sole director and shareholder of Platinum Hedge Holdings Pty Ltd (Platinum Hedge). Ryan held the only issued share. In June or July 2009 Platinum Hedge was registered on the Business Name Register, an ABN was issued to it and it was registered for GST. In November 2009 Ryan incorporated and became the sole director and shareholder of four companies:·Australasian Media Holdings Pty Ltd (Australasian Media);·Burra Mining Company Pty Ltd (Burra Mining);·Financial Investment Fund Pty Ltd (Financial Investment Fund); and·White Bull Investments Pty Ltd (White Bull). Five million shares were issued to Ryan in each company. All shares were fully unpaid. The registered office and principal place of business shown for each company was unit 1201, 576 St Kilda Road Melbourne. On 20 April 2011 Ryan lodged with the Australian Taxation Office a Business Activity Statement by Capitalisation for the quarter ended 31 March 2011. It reported sales of $1,240 and purchases of $73,900 and claimed a net GST credit of $7,218 (being ten per cent of net purchases). In June 2011 the Australian Taxation Office paid $7,223 into Ryan’s personal bank account. The claim was the subject of count 1 against Ryan. In June 2011 Ryan opened a bank account with Westpac in the name of Australasian Media and opened separate bank accounts with the Commonwealth Bank of Australia in the name of Burra Mining, Financial Investment Fund, Platinum Hedge and White Bull. Ryan was the sole signatory of these five bank accounts. In August 2011 the appellant and Ryan met and began a relationship. The appellant was employed full-time as an executive assistant at Hewlett-Packard, having commenced that employment in May 2011. She had no prior business or financial experience. She was 27 years old. Ryan was 36 years old. On 1 October 2011 Ryan registered the four companies referred to at [9] above for GST with the Australian Taxation Office. On 6 October 2011 Ryan lodged with the Australian Taxation Office a signed hard copy Business Activity Statement by Capitalisation for the quarter ended 30 June 2011. It reported purchases of $82,756 and claimed a net GST credit of $7,523 (1/11th of purchases). In October 2011 the Australian Taxation Office paid that amount into Ryan’s personal bank account. The claim was the subject of count 2 against Ryan.

Evidence

Evidence Before The Court

Ground of appeal 3 is that the trial Judge erred as a matter of law in directing the jury that evidence in relation to counts 1 to 10, and in particular the finding of a pattern in relation to counts 1 to 10, was admissible against the appellant to prove that she was a party to the agreement to commit counts 11 to 15. At the hearing of the appeal, ground 3 was argued as a particular of ground 1.Evidence inadmissible against the appellant The first complaint advanced on appeal is that the jury was not directed that certain evidence admissible against Ryan was inadmissible against the appellant. The appellant identifies three categories of such evidence (in chronological order):1.Evidence of conduct by Ryan comprising or relating to counts 1 to 10, being the counts separately charged against Ryan only.2.Evidence of a “hallmark” present in respect of counts 4 to 15 that the GST credit in respect of purchases was incorrectly calculated as 11 per cent of the value of purchases.3.Evidence of “post-offence conduct” by Ryan, in the absence of the appellant, being statements made, and documents provided, by Ryan to the Australian Taxation Office, Mr Perry and Ms Lundberg. The appellant addressed these three categories in reverse chronological order, and it is convenient to follow the same order.Post-offence conduct Substantial evidence was led at trial by the prosecution in relation to statements made by Ryan after the offences were allegedly committed to the Tax Office call centre, Mr Titterton, Mr Rebellato, Mr Perry and Ms Lundberg and documents provided by Ryan to them. That evidence is summarised at [95] above and in the Background section above. This evidence related to various admissions by Ryan (albeit it also included self-serving statements admissible under the principle that an entire conversation containing an admission must be tendered by the prosecution, rather than cherry-picking only those parts that comprise admissions). The prosecutor did not suggest that the evidence was tendered on any other basis, nor that the evidence was admissible against the appellant.Admissibility against the appellant On appeal, the Director contends that the evidence of post-offence statements made by Ryan to Mr Rebellato and the other prosecution witnesses was in fact admissible against the applicant as circumstantial evidence. The Director cites in support of that contention decisions of the Victorian and New South Wales Courts of Appeal in Tsang v R[6] and Elomar v R.[7][6] [2011] VSCA 336, (2011) 35 VR 240 at [35]-[38] per Nettle and Neave JJA and Sifris AJA.[7] [2014] NSWCCA 303, (2014) 316 ALR 206 at [263]-[284] per Bathurst CJ, Hoeben CJ at CL and Simpson J. The short answer to the Director’s contention is that the prosecution at trial did not tender the evidence in question against the appellant (as circumstantial evidence or otherwise). If the prosecution wished to adduce and rely on the evidence against the appellant, it was incumbent on her to announce that so that the appellant had the opportunity to object and the Judge had the opportunity to consider the objection and rule on the admissibility of the evidence against the appellant.

Decision

Reasons for decision

On a retrial, careful consideration should be given to a direction to the jury in light of the potential for this kind of reasoning. For example, a direction might be given emphasising the need for the prosecution to prove the requisite mental state of the appellant at the time that the Business Activity Statements were lodged rather than at a later stage, during the audit or objection process. As observed above, it will always be a matter of judgment whether or not to make explicit a particular reasoning process in order to direct the jury against its dangers. In addition, a more explicit Zoneff direction might be given to avoid the jury reasoning from any later attempted cover up, or protection of Ryan, by the appellant to a conclusion that she must have been involved in the original fraud (assuming the jury finds that there was an original fraud). Whether and to what extent these matters should be addressed will of course depend on the way in which the case is put and argued on any retrial.Conclusion We allow the appeal on ground 1. We set aside the appellant’s convictions and remit the matter to the District Court for a new trial.

Ratio Decidendi

Legal Principle Established

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