Hunter v The State of Western Australia
[2014] WASCA 184
•17 OCTOBER 2014
HUNTER -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 184 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:28/2014 | 24 JULY 2014 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 17/10/14 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Convictions on counts 1 and 2 set aside Retrial of counts 1 and 2 ordered Convictions on counts 3 and 4 upheld | ||
| B | |||
| PDF Version |
| Parties: | SHANE MERVYN HUNTER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Fraud Failure to distinguish between the separate elements of intent to defraud and deceit or any fraudulent means Person deceived may be different from the subject of the intention to defraud Honest claim of right Retrial or acquittal Application of proviso Relationship between salary and commission Unable to conclude that no substantial miscarriage of justice occurred Application for bail pending outcome of the appeal Merit of the appeal Impairment of appellant's right of appeal Exceptional reasons |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 4A Criminal Appeals Act 2004 (WA), s 6, s 7, s 23, s 30 Criminal Code (WA), s 22, s 378, s 409(1), s 552 Sentencing Administration Act 2003 (WA), s 5A, s 115A |
Case References: | Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215 Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221 Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230 Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 Mason v The State of Western Australia [2005] WASCA 125; (2005) 30 WAR 205 Peters v The Queen (1998) 192 CLR 493 Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728 Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445 The Queen v Kastratovic (1985) 42 SASR 59 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HUNTER -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 184 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 10 of 2013
Catchwords:
Criminal law - Appeal against conviction - Fraud - Failure to distinguish between the separate elements of intent to defraud and deceit or any fraudulent means - Person deceived may be different from the subject of the intention to defraud - Honest claim of right - Retrial or acquittal
Application of proviso - Relationship between salary and commission - Unable to conclude that no substantial miscarriage of justice occurred
Application for bail pending outcome of the appeal - Merit of the appeal - Impairment of appellant's right of appeal - Exceptional reasons
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Criminal Appeals Act 2004 (WA), s 6, s 7, s 23, s 30
Criminal Code (WA), s 22, s 378, s 409(1), s 552
Sentencing Administration Act 2003 (WA), s 5A, s 115A
Result:
Appeal allowed
Convictions on counts 1 and 2 set aside
Retrial of counts 1 and 2 ordered
Convictions on counts 3 and 4 upheld
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms A L Forrester
Solicitors:
Appellant : Paxman and Paxman Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221
Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Mason v The State of Western Australia [2005] WASCA 125; (2005) 30 WAR 205
Peters v The Queen (1998) 192 CLR 493
Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728
Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445
The Queen v Kastratovic (1985) 42 SASR 59
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
1 McLURE P: This is an appeal against conviction.
2 The appellant was convicted after trial by jury of one count that, with intent to defraud, by deceit or fraudulent means he attempted to gain a benefit ($5,000) for himself contrary to s 409(1)(c) and s 552 of the Criminal Code (WA) (the Code) (count 1); with intent to defraud, by deceit or fraudulent means gained a benefit ($12,705) for himself contrary to s 409(1)(c) of the Code (count 2); stealing three iPads the property of Retail Systems Pty Ltd (Retail Systems) contrary to s 378 of the Code (count 3); and, with intent to defraud, by deceit or fraudulent means gained a benefit ($300) for himself contrary to s 409(1)(c) of the Code.
3 After a leave hearing on 23 May 2014 at which senior counsel for the appellant applied to add a further ground of appeal, this court granted leave to add and to appeal on ground 1.4 in the following terms:
With regard to counts 1 and 2, his Honour erred by confining the defence of honest claim of right as to the accused's intention with respect to the customers and excluding it with respect to Retail Systems.
4 The application for leave to appeal on the remaining grounds was referred to the hearing of the appeal. The remaining grounds are that the trial judge:
1.1 failed to clearly distinguish between the deceitful means and the dishonest intent;
1.2 conflated the deceitful means and the dishonest intent;
1.3 erred by too narrowly confining the limits of the appellant's possible intent with regard to counts 1 and 2.
5 At the hearing of the appeal the court granted the respondent's application for leave to amend its case to resist the appeal on the ground that there was no substantial miscarriage of justice. For reasons explained below, the appellant was released on bail pending the determination of this appeal.
The State case
6 The State case was opened as follows. The appellant was employed by Retail Systems as a sales person. Retail Systems sold point of sale (POS) electronic equipment to, inter alia, supermarkets. In broad outline, Retail Systems process was that a sale agreement was negotiated with a supermarket; a term of the sale was the payment of a deposit to Retail Systems; a Retail Systems invoice containing its bank account details would be issued to the supermarket for the deposit; the deposit was to be paid directly into Retail Systems' bank account; subsequently the supermarket would be invoiced for the outstanding balance of the purchase price.
7 The appellant was paid a salary and a commission on sales (although, as we shall see later, there is confusion as to the relationship between the payments). The commission was approximately 30% of the profit on the sale and was payable after the whole amount of the purchase price was paid, not after payment of the deposit. Retail Systems paid the appellant's salary on a fortnightly basis into a bank account in the name of his partner (the appellant's bank account).
8 The attempt the subject of count 1 related to an IGA supermarket in Tarcoola, Geraldton (Tarcoola IGA). The appellant, on behalf of Retail Systems, conducted negotiations with Tarcoola IGA for the sale of POS electronic equipment. A sales proposal was emailed to Tarcoola IGA on 1 December 2011. The sales proposal had Retail Systems' bank account details on it. The appellant prepared and forwarded to Tarcoola IGA an invoice dated 7 December 2011 for the payment to Retail Systems of a deposit of $5,000. The invoice was on a Retail Systems standard form save that the appellant had, inter alia, deleted Retail Systems' bank account details and inserted the appellant's bank account details (the Tarcoola invoice).
9 After receipt of the Tarcoola invoice, the manager of Tarcoola IGA went to its bank to arrange for the payment of half the deposit into Retail Systems' bank account. However, she took the sales proposal to the bank not the Tarcoola invoice. As a result, the sum of $2,500 was paid into Retail Systems' bank account. After doing the banking, the manager rang the appellant and advised him that she had paid half the deposit into the Retail Systems account. The appellant said to her that it was not in the account and asked her the account number she had paid the money into. When the manager gave him the details of Retail Systems' bank account the appellant said, 'It's okay. I can see it's in there now'. This was the factual basis for the State claim that the appellant attempted, unsuccessfully, to obtain a benefit in the sum of $5,000 the subject of the Tarcoola invoice.
10 Count 2 relates to an IGA in Cranbrook (Cranbrook IGA). The appellant, on behalf of Retail Systems, conducted negotiations with Cranbrook IGA for the sale of POS electronic equipment. The appellant forwarded to Cranbrook IGA a Retail Systems invoice dated 8 December 2011 for a deposit of $12,705. That invoice was in Retail Systems' standard form save that the appellant had deleted Retail Systems' bank account details and inserted the appellant's bank account details (the Cranbrook invoice).
11 On 13 December 2011 Cranbrook IGA paid the deposit of $12,705 into the appellant's bank account nominated on the Cranbrook invoice. In the following two days, $9,400 was withdrawn from the appellant's bank account. None of the amount paid by Cranbrook IGA was paid to Retail Systems.
12 At a meeting on 19 March 2012 the owner of Retail Systems, Mr Peter Martin, advised the appellant that he had lost confidence in him and the appellant's engagement came to an end. The appellant handed over his work laptop computer at this meeting. The Tarcoola and Cranbrook invoices were located on that laptop.
13 Retail Systems did not authorise the appellant to put his bank account details on the Tarcoola IGA invoice or the Cranbrook IGA invoice or to receive money into his bank account for Retail Systems.
14 In opening, the prosecutor noted that in electronically recorded interviews with police (ROI), the appellant said he was entitled to receive the moneys the subject of counts 1 and 2 in lieu of commissions that Retail Systems owed him.
15 Mr Martin was the only State witness to give evidence as to the terms and conditions of the appellant's engagement with Retail Systems and his entitlement to commissions. However, he had not personally investigated the appellant's claim that he was owed commissions in December 2011. The best Mr Martin could do was to say that if commissions were owing, they would have been paid.
16 Some time after the appellant had left Retail Systems, a stocktake of equipment established that three Apple iPads the property of Retail Systems were missing. Police discovered one of the iPads in a search of the appellant's home. Two of the iPads belonging to Retail Systems were put up by the appellant as collateral for a loan of $300 from Cash Converters on 24 December 2011. In order to obtain the loan, the appellant signed a declaration that the iPads were legally his. The appellant did not redeem the iPads from Cash Converters before the due date and Cash Converters sold them.
17 Mr Martin gave evidence that the iPads were taken from Retail Systems without its knowledge, authority or permission.
The defence case
18 The appellant gave evidence at his trial. He commenced working with Retail Systems on 10 January 2011. The defence case, accepted by Mr Martin, was that the appellant was not an employee of Retail Systems. The appellant described himself variously as a 'commission agent' or a 'contractor'. The appellant invoiced Retail Systems for his 'salary' and other 'money that was due to [him]' (ts 195, 200). An invoice in evidence is from the 'Trustee for Hunter Fund'.
19 In relation to both the Tarcoola invoice and the Cranbrook invoice, the appellant admitted that: (1) without the knowledge, authority or consent of the relevant purchaser (Tarcoola IGA or Cranbrook IGA) and Retail Systems, he inserted his bank account details in the invoices to the purchasers; (2) he forwarded the invoices to the relevant purchaser; (3) his conduct was, in each case, deceitful; (4) the purchasers would not have paid the deposit the subject of the invoice addressed to them if they had known that the bank account details were those of the appellant personally; and (5) in relation to count 2, the deposit of $12,705 was paid into the appellant's bank account.
20 As explained to the jury by defence counsel in his closing address, all of the appellant's actions that gave rise to the counts in the indictment stemmed in one way or another from the appellant's belief that he was entitled to a substantial sum from Retail Systems for commissions due and owing and his belief that Retail Systems, and its owner Mr Martin, did not have the financial capacity or will to pay the appellant the commissions he was owed.
21 As to count 1, the appellant's evidence-in-chief was to the effect that Tarcoola IGA could not fund the purchase of POS equipment from its own resources and did not want to apply for finance through a broker because it would be refused; that the appellant said to Tarcoola IGA he would forego his commission so as to reduce the overall contract price to realise the sale; that he, the appellant, would provide finance to Tarcoola IGA using the '$20,000 in commission' owed to him by Retail Systems; and that his intention was to hold the deposit until such time as he knew that Peter Martin had actually organised and secured the hardware/software licenses required and locked in the installation date for the POS equipment (ts 235 - 237). That was followed by the following exchange:
Did that $5,000 relate in any way to your commission on that sale?---No (ts 237).
22 The appellant described himself as being an 'escrow agent' in relation to count 1 (ts 246). That is, he would have paid the deposit to Retail Systems if it performed or returned it to Tarcoola IGA if the sale fell through.
23 As to count 2, the appellant's evidence was that the amount of $12,705 represented the commission payable to him on the sale to Cranbrook IGA of the POS equipment at a purchase price of $44,990 and a second sale to Cranbrook IGA of wireless equipment, the purchase price of which was $20,488 (ts 225).
24 The appellant said he was entitled to the $12,705 paid by Cranbrook IGA because 'it was my commission that I was entitled to based on those sales that were sold to Cranbrook and paid for' (ts 226). However, there is also a suggestion in the appellant's evidence that he received that deposit on account of the commission he was owed at that time from all the sales he had negotiated for Retail Systems. He believed that he would not be paid his commission because Retail Systems was having financial problems (ts 217 - 219). The appellant said in cross-examination that some of the $12,705 paid into his account was paid out to Retail Systems 'to cover another business's account' (ts 252).
25 As to counts 3 and 4, the defence case was that Mr Martin agreed that the appellant could take the three iPads in lieu of commission he was owed by Retail Systems (ts 238). Being the lawful owner of the iPads, he was entitled to use them as security for the loan from Cash Converters.
26 In support of the claim that substantial commission was owed by Retail Systems to the appellant, the appellant gave evidence that he was entitled to commission upon entry into a sale agreement negotiated by him or, at the latest, once payment, or part payment, had been received by Retail Systems.
27 The defence placed significant reliance on a table (the green table) containing the appellant's commission calculations in an email exchange between the appellant and Mr Martin on 16 December 2011 (exhibit 10). The table needs to be understood in context. In an email from the appellant to Mr Martin on 16 December 2011, the appellant states:
Any chance I can get a xmas comm payment to help cover things - will leave it for you to decide what is a fair payment if you do see fit to give something over.
28 In a response on the same date, Mr Martin asked the appellant to give him 'a list of all sales both installed and pending'.
29 The appellant replied on 16 December 2011, stating that he had put together a list of the primary accounts he had been involved in (not including small quotes) which is as follows:
| Commission Calculations | ||||
|
|
|
| |
| Rivervale | 45200 | 0.4483 | 20265 | 6079.50 |
| Ellenbrook | 41818 | 0.4008 | 16759 | 5027.70 |
| Adelaide TCE | 18410 | 0.489 | 9002 | 2700.60 |
| Morawa | 32428 | 0.4526 | 13343 | 4002.90 |
| Western Alloy | 15052 | 0.4154 | 6252.5 | 1875.75 |
| Cue Grocery | 25010 | 0.4894 | 12239.5 | 3671.85 |
| Tarcoola | 31730 | 0.4534 | 14386.5 | 4315.95 |
| Catch 22 | 19810 | 0.4695 | 9301 | 2790.30 |
| Has | 29800 | 0.4363 | 13002.69 | 3900.81 |
| Mirrabooka | 49720 | 0.3927 | 19347.57 | 5804.27 |
| Cranbrook IGA (Pos) | 34740 | 0.4762 | 16542 | 4962.60 |
| Cranbrook IGA (Wireless) | 6510 | 0.5116 | 3330 | 999.00 |
| Roleystone | 13800 | 0.4226 | 5831 | 1749.30 |
| Darch IGA | 5990 | 0.3785 | 2267.5 | 680.25 |
30 The total commission for the sales in the green table is $48,560.78. Mr Martin accepted in cross-examination that four of the listed sales had been completed and the full purchase price paid prior to December 2011, being Rivervale, Ellenbrook, Mirrabooka and Darch IGA and another one in January 2012 (Catch 22). Based on the green table, the total commission for those sales is $20,382.
31 Defence counsel cross-examined Mr Martin on entries recorded in Retail Systems' business bank account statements (exhibit 11). The bank statements confirmed the receipt of many of the amounts shown on the green table. They also show a number of payments to the appellant. Some of the payments to the appellant are expressly identified in the bank statements as commission payments, which as at 16 December 2011 total $9,000 (being a payment of $4,000 on 14 April 2011, $2,500 on 17 August 2011 and $2,500 on 11 October 2011).
32 An issue raised but not satisfactorily explained or explored in the State case is the relationship between the fortnightly payments of 'salary' to the appellant and his entitlement to commission. The initial impression given by Mr Martin in his evidence-in-chief is that the amount of the commission (approximately 30% of the profit on a sale) was in addition to the appellant's salary. However, there is a suggestion in his answers in cross-examination that the 'salary' payments were in effect on account of commission so that the appellant's total remuneration was no more than what he was entitled to by way of commission. The latter position is consistent with Retail Systems Sales Commission Plan and with what the appellant told police in his ROI as to the arrangement with Retail Systems. If indeed the 'salary' is on account of commissions that become, or are, due and payable, it is misleading to say, as Mr Martin did, that commissions are only payable after receipt by Retail Systems of the full purchase price; at its highest, that would only be the case in relation to the outstanding balance of any commission not accounted for by payments of salary.
33 There is evidence (exhibit 9) that the appellant was paid a salary (and a car allowance) on a fortnightly basis until 12 August 2011. Based on exhibit 9, Retail Systems had paid the appellant a total of around $33,644 by that date. The implication in the appellant's evidence is that he continued to receive a salary from Retail Systems until he left in March 2012. However contrary to what he said in the ROI, the appellant's evidence at trial was that the payments of salary were not an advance on commission (ts 241 - 242).
34 The state of the evidence on this subject at the end of the trial was such that the prosecution could not contend that no commission was owing to the appellant in December 2011. The prosecutor in closing did contend that the amount of commission owing was considerably less than the amount of $26,000 claimed by the appellant to be owing at the date of the offences. However, that depended on whether or not the salary was on account of commissions.
The statutory framework
35 Section 409(1) of the Code relevantly provides:
Any person who, with intent to defraud, by deceit or any fraudulent means -
(a) obtains property from any person; or
(b) induces any person to deliver property to another person; or
(c) gains a benefit, pecuniary or otherwise, for any person; or
(d) causes a detriment, pecuniary or otherwise, to any person; or
(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime[.]
36 There are three elements to the offence of fraud under s 409(1), one subjective and two objective. The subjective element is 'with intent to defraud'. The subjective element relates to the objective elements. The nature and extent of the relationship is discussed below. The first objective element is that deceit or fraudulent means are employed. The second objective element requires that the deceit or fraudulent means cause one or more of the consequences specified in pars (a) - (f) of s 409(1).
37 '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': Graham-Helwig v The State of Western Australia [2005] WASCA 127 [13]. That is, 'deceit' requires that the offender: (1) engage in conduct that induces a person to believe something is true which is in fact false; and (2) knows or believe the thing to be false.
38 'Any fraudulent means' encompasses other conduct falling outside the scope of 'deceit' which can properly be stigmatised as dishonest: Graham-Helwig [14].
39 The phrase 'intent to defraud' in s 409(1) has its common law meaning. To defraud is 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: Bolitho v The State of Western Australia [2007] WASCA 102 [152]. That is, to defraud must involve something more than the use of dishonest means. The effect of the dishonest means must be to deprive a person of something of actual or potential value: Balcombe v De Simoni (1972) 126 CLR 576; Bolitho [140] - [143]. It follows that an intent to deprive a person of money which is, or which the defendant honestly believes is, presently due and owing to another is not an intent to defraud even if deceit or other dishonest means are used: The Queen v Kastratovic (1985) 42 SASR 59; Roberts v The State of Western Australia (2005) 29 WAR 445.
40 In summary, intent to defraud at common law is a single intention with three components being an intention to: (1) deprive a person (2) of something that is of actual or potential economic value (3) by dishonest means. In the context of s 409(1)(c), there is a fourth component, being an intention to gain a benefit, pecuniary or otherwise, for any person.
41 The third component of the intention, being an intention to use dishonest means, will ordinarily be established by proof of the first objective element, namely that the accused has used 'deceit or any fraudulent means'. However, proof of deceit or fraudulent means is not itself sufficient to establish the first two components of an intent to defraud.
42 Putting the State case as to counts 1 and 2 within the applicable legislative framework, it is to the following effect. First, the appellant represented to each purchaser that to pay the deposit into the bank account nominated in the invoice would be to pay the deposit to, or at the direction of, Retail Systems (the representation). Second, each purchaser believed the representation to be true. Third, the representation was, to the appellant's knowledge, false. Fourth, the representation caused, or was intended to cause, each purchaser to direct the deposit payment to the appellant's bank account (that is, 'but for' the appellant's deceit, that would not have occurred). Fifth, the appellant gained, or would have gained, a benefit by the payment of the deposit into the appellant's bank account. These matters satisfy the two objective elements of the offence under s 409(1)(c).
43 The terms of the s 409(1)(c) charges against the appellant do not identify 'who' the appellant intended to defraud or who owned 'what'. The identities of the person deceived and the person defrauded are not elements of the offences with which the appellant was charged.
44 Ordinarily, the victim of the deceit is also the person the subject of the intent to defraud. However, it is not legally necessary that the same person be both the victim of the deceit and the target of the intention to defraud. For example, if on the facts Cranbrook IGA was not deprived of anything that had actual or potential value because, in law or in fact, its payment discharged its contractual obligation to Retail Systems, the victim of the deceit would be Cranbrook IGA and the victim of the fraud would be Retail Systems. Moreover, even if both Cranbrook IGA and Retail Systems were in fact deprived of something of actual or potential economic value, there would be no intent to defraud if the appellant honestly believed that the only financial victim would be Retail Systems against whom he had an honest claim of right.
45 The defence of honest claim of right in s 22 of the Code relevantly provides:
[A] person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
46 There is no scope for the operation of s 22 in this case because an intention to defraud is an element of the offence charged: Roberts [27], [28], [32]. However, as Roberts demonstrates, an honest claim of right to the property in issue can negative an intent to defraud. An honest claim of right can exist even if the claim is based on a mistaken view of the law and is unreasonable: Macleod v The Queen (2003) 214 CLR 230; Roberts [25]. However, the reasonableness or otherwise of the claim may inform an assessment as to whether an accused has an honest belief in his claim.
Ground 1.1 and 1.2 - deceitful means and intent to defraud
47 The appellant contends in grounds 1.1 and 1.2 that the trial judge in his directions to the jury failed to clearly distinguish between the separate requirements of (in this case) the appellant's deceitful means on the one hand and an intent to defraud on the other. This ground is based upon the following direction given by the trial judge in his summing up:
So if you find that the State has not proved beyond reasonable doubt that the accused did not have an honest belief that he was entitled to do what he did with respect to the count that you are considering, then he could not have had an intent to defraud and it would be your duty to acquit the accused because the element would not have been proved beyond reasonable doubt.
If the State has proved to your satisfaction beyond reasonable doubt that the accused, at the relevant time, did not honestly believe that he was acting honestly by doing what he did, then the State will have proved this element of fraud or attempted fraud and you should move to the third element, the objective of the fraudulent intention and actions done in pursuance of that intention, to see if the accused was successful in obtaining a benefit (ts 293).
48 The first quoted paragraph refers to the requirement of an intent to defraud. The second paragraph is confused and confusing. The appellant admitted that he had acted deceitfully in forwarding the amended invoices to the purchasers. The appellant's defence of honest claim of right was only relevant to the subjective element of intent to defraud. The statement in the second quoted paragraph that if the State has established at the relevant time that the appellant 'did not honestly believe that he was acting honestly by doing what he did' conflates intent to defraud and the use of deceitful means. The direction is inconsistent with and obscures the fact that a person can act dishonestly without having an intent to defraud.
49 It is necessary to refer to the impugned direction in its broader context. The trial judge directed the jury that they had to be satisfied beyond reasonable doubt that the appellant 'did what he did with an intention to defraud', noting that '[t]o defraud someone means to deprive somebody of their property by dishonest means' (ts 290). He identified the 'someone' in relation to count 1 as Tarcoola IGA, count 2 as Cranbrook IGA, count 4 as Cash Converters and the 'property' as the money the subject of the counts.
50 The trial judge continued:
The intent to defraud must result from the acts or course of conduct engaged in by the accused being deceitful or involving fraudulent means, that is, conduct which was dishonest (ts 291). (emphasis added)
51 That statement is inaccurate. It suggests that there is a necessary and inevitable causal link between the deceit and the intent to defraud, the latter being consequential on the former. That direction is repeated:
[T]he State must prove beyond reasonable doubt that the accused had the intent to defraud the party concerned.
…
As mentioned as part of this element the State must prove beyond reasonable doubt that the accused used deceit or fraudulent means (ts 291 - 292).
52 The trial judge then directed the jury on the appellant's defence of honest claim of right as follows:
The accused says that he had an honest belief in his own mind that he was entitled to, at least as against Retail Systems, and according to him also the customer, to do what he did by altering the bank account details on the tax invoices.
It is the subjective view of the accused as to whether he honestly believed that he had a right to do what he did as against the customers, not RetailSystems but as against the customers, in the count that you are considering, that is critical.
The question for you is whether the State has proved beyond reasonable doubt that the accused did not honestly believe that … by submitting a tax invoice on Retail Systems' letterhead with his personal nominated bank account for payment, and in count 4, by signing the declaration that he was the legal owner of the laptops, that he was acting honestly as [of] right (292 - 293).
53 That direction, in particular the last quoted paragraph, erroneously conflates the defence case of honest claim of right (which goes to the appellant's intent to defraud) and the admitted use of deceitful means.
54 The directions as a whole convey the erroneous notion that the use of deceit or any fraudulent means is necessarily (must not may be) the foundation for a finding of intent to defraud. That error is of significance in this case. The jury had to be directed in clear terms that an accused can act dishonestly without having an intent to defraud.
55 Although the directions relating to the appellant's honest claim of right are not confined to any particular count, the errors can only apply to counts 1 and 2 in which the defence was that the appellant used deceitful means without an intent to defraud. The defence to the fraud charge in count 4 was that he had not acted deceitfully because he had been given the laptops by Retail Systems.
56 However, the errors affecting counts 1 and 2 would be inconsequential if the appellant's honest claim of right defence was not open on the evidence as a matter of law. That links with grounds 1.3 and 1.4.
Grounds 1.3 and 1.4 - intent to defraud whom
57 The State case in opening on intent to defraud conflates the subjective element of intent to defraud and the objective element of deceit or any fraudulent means and is ambiguous as to whom the appellant intended to defraud (ts 59). Initially, the prosecutor said the intent was to defraud the purchasers and immediately thereafter said the intent to defraud was to obtain money due to Retail Systems. Moreover, the trial was opened and run by the State on the basis that the defence of honest claim of right was open on the evidence and had to be negatived by the State. In closing, the State case was that the appellant had an intent to defraud the purchasers (ts 9, 16, 18).
58 In his summing up on count 2, the trial judge directed the jury that the issues were whether the appellant had defrauded Cranbrook IGA of the deposit of $12,705 and whether the appellant had an intention to defraud Cranbrook IGA of that money. A direction to similar effect was given on count 1. The conflation of the separate subjective and objective elements has the result that the target of both the deceitful means and the intent to defraud has to be the same person. This led to the trial judge's direction of which the appellant complains in these grounds.
59 The trial judge expressly limited the defence of honest claim of right to the purchasers, Tarcoola IGA in count 1 and Cranbrook IGA in count 2. The trial judge said that what was critical was whether the appellant 'honestly believed that he had a right to do what he did as against the customers, not Retail Systems but as against the customers' (ts 292 - 293).
60 That direction is not to the appellant's disadvantage on count 1 because the defence case was that the appellant's intention was to hold the $5,000 deposit on trust for Tarcoola IGA unless and until Retail Systems performed its obligations under the POS equipment sale agreement and if it did not, the deposit would be returned to Tarcoola IGA. On that scenario, Tarcoola IGA would not be deprived of the deposit. In any event, the defence is unrelated to any honest claim of right as against Retail Systems for commission.
61 Moreover, the direction is not relevant to count 4 as the defence case was that the appellant was the owner of the iPads as Mr Martin had agreed that the appellant could have them in part payment of his commission.
62 However, the direction had the potential to completely undermine the appellant's defence on count 2 because the sole source of his defence of honest claim of right on that count was Retail Systems' indebtedness to him. The appellant's evidence was that the intended financial target of his deceitful means was Retail Systems against the backdrop of evidence to the effect that: at the time the appellant engaged in the deceitful means, Cranbrook IGA had an existing agreement with Retail Systems which required Cranbrook IGA to pay a deposit to Retail Systems on receipt of an invoice; the appellant believed that Retail Systems would have to perform its contractual obligations to Cranbrook IGA notwithstanding the diversion of the deposit to the appellant (VROI p 8 - 9); and the appellant's sole intention was to divert to himself money owed to Retail Systems to which he was entitled for his commission on that sale and/or other sales.
63 As explained above, the law does not require that the person deceived also be the subject of the intention to defraud. The appellant's evidence is capable of establishing an honest claim of right so as to prevent a finding of an intention to defraud on count 2. I would uphold grounds 1.3 and 1.4 in relation to count 2.
Conclusion
64 The errors the subject of grounds 1.1 and 1.2 relate to counts 1 and 2. The errors the subject of grounds 1.3 and 1.4 are confined to count 2. None of the errors affect the stealing offence (count 3) or the associated fraud offence (count 4). The defence to both counts 3 and 4 was that Mr Martin gave the appellant permission to take the iPads. There is no evidentiary foundation for an honest claim of right in relation to count 4. The defence negatived both the subjective element (intent) and the objective element of dishonest means.
65 Moreover, the errors have no indirect or 'wash-over' effect on counts 3 and 4. The errors diverted attention from the credibility of the defence to its capacity (as a matter of law) to answer the charges. Accordingly, I would not uphold the grounds of appeal in relation to counts 3 and 4.
Proviso
66 The respondent submits that the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred pursuant to s 30(4) of the Criminal Appeals Act 2004 (WA).
67 Consideration of the proviso is not to be undertaken by attempting to predict what a jury, whether the jury at trial or some hypothetical jury, would or might have done. Rather, the task is to decide whether a substantial miscarriage of justice has actually occurred. That is an objective task and is not materially different from other appellate tasks and must be undertaken by the appellate court on the whole of the record of the trial, including the verdict: Weiss v The Queen (2005) 224 CLR 300 [35] - [47].
68 Weiss is authority for the negative proposition that it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the offence on which the jury returned its verdict [44]. See also Darkan v The Queen (2006) 227 CLR 373 [84], [94] - [96]; AK v The State of Western Australia (2008) 232 CLR 438 [53].
69 However, there may be cases where it would be proper to allow an appeal and order a new trial even though the appellate court is satisfied beyond reasonable doubt of the appellant's guilt (the Wilde category). That includes where there has been a significant denial of procedural fairness at trial or where the errors or miscarriages of justice occurring in the course of the trial may amount to a serious breach of the presuppositions of the trial: Weiss [45] - [46]. The appellant contends that the errors in this case fall within the Wilde category.
70 The respondent contends that:
1. the trial was conducted primarily on a factual basis;
2. in order to convict on count 1 the jury must have found beyond reasonable doubt that the appellant intended to keep the money for himself not hold it as a stakeholder;
3. in order to convict on counts 3 and 4 the jury must have found beyond reasonable doubt that the appellant was not given permission to take the iPads; and
4. in relation to count 2, the factual foundation of the defence of honest claim of right was entirely dependent upon the appellant's evidence and an assessment of his credibility and reliability; a factual finding as to the appellant's credibility must precede any consideration of whether he had an honest claim of right as against either Retail Systems or Cranbrook IGA; a comparison between the appellant's contemporaneous emails, his answers in the ROI and his oral evidence at trial exposed very substantial inconsistencies on fundamental matters; and the appellant's evidence cannot be accepted, in which case the errors could not have impacted on the verdict.
71 It is correct that the trial focused primarily on factual issues. However, insufficient attention was given to the basic task of analysing the legal framework and relating the law to the facts.
72 I also accept that in order to convict on counts 3 and 4, the jury must have found beyond reasonable doubt that the appellant was not given permission to take the iPads. Those counts are unaffected by the errors in the trial judge's directions but that does not impact on whether the proviso should apply to the other counts.
73 If there had been no misdirection affecting count 1, the State's second proposition would also be correct. However the conflation of the elements of intent to defraud and deceit or any fraudulent means and the omission to positively direct the jury that an accused can act dishonestly without having an intent to defraud, makes it impossible to infer that the jury must have found that the appellant intended to keep the money for himself. Accordingly, this court cannot apply the proviso without first being satisfied that the evidence properly admitted at trial proved beyond reasonable doubt the appellant's guilt of the offences the subject of counts 1 and 2.
74 I have read the transcript of the ROI, the appellant's evidence at trial and have examined the exhibits and the relevant parts of Retail Systems Sales Commission Plan (MFI2) which was referred to in evidence. The State is correct in its claim that the material discloses very substantial inconsistencies in the appellant's evidence on fundamental matters.
75 For example, in relation to count 1, the appellant's use of dishonest means sits very uncomfortably with his claimed intention to act solely as a stakeholder; and his evidence at trial and in his ROI that he intended to finance the purchase by Tarcoola IGA of the POS equipment using the commission he said was due and owing to him from Retail Systems is inconsistent with his evidence that he believed Retail Systems did not have the financial capacity or the will to pay the commissions owing to him. Further, on one reading of the ROI there is a suggestion that the diversion of the deposit of $5,000 to the appellant's account was for his commission (as the prosecution claimed in opening).
76 However, the State bore the onus of negativing both innocent explanations advanced by the appellant in relation to the attempt offence. In my view, the outcome on counts 1 and 2 should stand together.
77 In relation to count 2 there is much material that seriously calls into question the appellant's credibility. In particular, aspects of the contemporaneous objective evidence (in particular exhibits 9 and 10) are inconsistent with the appellant's evidence at trial as to the amount of commission payable on the sales the subject of counts 1 and 2; the formula for calculating the commission (the appellant in the ROI claimed it was around 30% of the purchase price not 30% of the profit from the sale); when all of the commission was due (on entry into the sale contract); and the total amount of commissions he was owed in December 2011.
78 On the other hand, the evidence falls well short of enabling a finding as to the relationship between the payment of salary and commission which in turn impacts on the trigger for the payment of commission and if and how much commission Retail Systems owed the appellant in December 2011. Those deficiencies prevent me from concluding that no substantial miscarriage of justice has occurred notwithstanding the errors made by the trial judge. In those circumstances it is unnecessary to determine whether this case falls within the Wilde category.
Bail pending appeal
79 At the conclusion of the hearing of the appeal, the appellant applied for bail. One of the grounds of the application was that the appellant had been denied parole because of his appeal against sentence.
80 In deciding whether or not to grant bail to an offender who is in custody waiting for the disposal of appeal proceedings, the court can only grant bail if it is satisfied that, inter alia, exceptional reasons exist: Bail Act 1982 (WA), sch 1 pt C cl 4A.
81 Exhibit 1 in the appeal is a letter dated 26 June 2014 from the Prisoners Review Board of Western Australia (Board) to the appellant. The letter informs the appellant that on 26 June 2014 the Board made the decision to deny him release on parole. The Board states:
In making this decision the Board took into account the release considerations in s 5A of the Sentence Administration Act 2003 (WA), giving paramount consideration to the safety of the community. The Board decided that your release would present an unacceptable risk to the safety of the community due to:
1. Unmet treatment needs (consequential thinking). You were assessed as requiring the Think First Programme but this was not made available to you as you have appealed your sentence. The Board notes your criminal history includes dishonesty offences in two other jurisdictions.
82 The Board then advises the appellant of his right to a review of the Board's decision under s 115A of the Sentence Administration Act 2003 (WA).
83 A person sentenced as a result of a conviction in this State has, subject to a grant of leave, the right to appeal against the sentence: Criminal Appeals Act 2004 (WA), s 6, s 7, s 23. That right of appeal was impaired in this case because the sentence appeal provided the basis for the denial of access to a treatment programme regarded as a pre-condition to the grant of parole. I cannot conceive of any justification for barring a sentenced offender from participating in a treatment programme which is a pre-condition to the grant of parole because of a pending appeal against sentence. In any event, the appellant discontinued his sentence appeal on 5 June 2014. I do not know whether prior knowledge of the Board's attitude influenced that decision.
84 In view of the merits of the appeal and the impairment of the appellant's right of appeal, I joined in the order for the grant of bail pending the determination of the appeal.
Retrial or acquittal
85 If this court allows an appeal against conviction, it must set aside the conviction and, relevantly, order a new trial or enter a judgment of acquittal: Criminal Appeals Act (WA), s 30(5). The decision as to which course to take is discretionary in character: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627.
86 The issue is whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If not, a new trial should not be ordered. Second, if the court determines that the admissible evidence at the original trial was sufficiently cogent to support a conviction, the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused (630).
87 The usual order is for a new trial. That leaves it to the prosecution, within the Executive Government, to take into account all relevant considerations and to ensure consistency in the treatment of like cases in determining whether there should be a retrial: Mallard v The Queen (2005) 224 CLR 125 [91].
88 In this case the admissible evidence adduced at the original trial was sufficiently cogent to support convictions on counts 1 and 2, notwithstanding the deficiencies to which I have adverted. Indeed, having regard to the nature and extent of the inconsistencies in the appellant's evidence, the case against the appellant can be characterised as strong.
89 On the other hand, the appellant has completed the non-parole period of his sentences. The appellant was sentenced to 12 months' imprisonment on count 1, 14 months' imprisonment on count 2 and 2 months' imprisonment on each of counts 3 and 4. The total effective sentence was 14 months' imprisonment, there being orders for total concurrency. The fact that an appellant has served the non-parole period of the total sentence is a significant consideration, but is not decisive: Mason v The State of Western Australia (2005) 30 WAR 205 [57].
90 Another relevant consideration is the attitude of the prosecution: Dyers v The Queen (2002) 210 CLR 285 [83]. In this case the prosecution seeks an order for a retrial.
91 Having regard to all relevant considerations, I am not persuaded that there are sufficient circumstances to justify a departure from the usual order for a new trial.
92 Accordingly, I would order that the appeal be allowed in relation to counts 1 and 2, the convictions on counts 1 and 2 be set aside and that there be a retrial.
93 BUSS JA: I agree with the orders proposed by McLure P. Subject to the observations which follow, I agree generally with her Honour's reasons.
94 Section 409(1) of the Criminal Code (WA) provides, relevantly:
(1) Any person who, with intent to defraud, by deceit or any fraudulent means -
(a) obtains property from any person; or
(b) induces any person to deliver property to another person; or
(c) gains a benefit, pecuniary or otherwise, for any person; or
(d) causes a detriment, pecuniary or otherwise, to any person; or
(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime …
…
(3) It is immaterial that the accused person intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused.
95 The offence created by s 409(1) has three elements. I will identify each of the elements and then discuss some aspects of them.
96 First, the accused must have an 'intent to defraud'. Secondly, with that intent, the accused must have engaged in 'deceit' or employed 'fraudulent means'. Thirdly, with that intent, and 'by' that deceit or 'by' those fraudulent means, the accused must have brought about a circumstance enumerated in par (a) to par (f) of s 409(1).
97 The common law meaning of 'intent to defraud' has not been altered or enlarged by par (a) to par (f) of s 409(1). The concept of 'intent to defraud' confines the scope of the offence created by the provision. See Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215 [154] (McLure JA), [170] (Buss JA).
98 As I noted in Bolitho, an accused will have an 'intent to defraud', within s 409(1), if he or she intends:
(a) to cause or induce loss, detriment or prejudice (including the risk of loss, detriment or prejudice) in relation to any lawful right, interest, opportunity or advantage (including any potential lawful right, interest, opportunity or advantage) of the victim, which has some actual or potential value; or
(b) to cause or induce a person to contravene his or her public duty by doing something that he or she would otherwise not have done or by not doing something that he or she would otherwise have done; or
- (c) (perhaps) to cause or induce loss, detriment or prejudice (including the risk of loss, detriment or prejudice) to a non-economic right or interest of the victim such as private reputation or personal status [174].
The categories I have described are not intended to be exhaustive.
100 The element, in s 409(1), that the accused have engaged in 'deceit' or have employed 'fraudulent means' is separate and distinct from, and additional to, the element that the accused have an 'intent to defraud'.
101 The word 'by', in s 409(1), requires that the accused's 'deceit' or 'fraudulent means' have brought about a circumstance enumerated in par (a) to par (f) of the provision. That is, a circumstance enumerated in par (a) to par (f) must have been a result of the deceit used or the fraudulent means employed.
102 However, it is not essential that the accused's intent, in the context of his or her 'intent to defraud', should correspond with the circumstance enumerated in par (a) to par (f) of s 409(1) which has been brought about by, or is a result of, the accused's 'deceit' or 'fraudulent means'. See Bolitho [177] (Buss JA).
103 Also, it is not essential that the accused uses the 'deceit' or employs the 'fraudulent means' against the person who is the subject of the relevant circumstance referred to in par (a) to par (f) of s 409(1). That is:
(a) the accused may use the deceit or fraudulent means against one person, A; and
(b) the person who is the subject of the relevant circumstance referred to in par (a) to par (f) of s 409(1) may be another person, B.
104 MAZZA JA: I have had the considerable advantage of reading the reasons of McLure P and Buss JA. I agree with them that the appeal should be allowed in relation to counts 1 and 2, that those convictions should be set aside and that there be a retrial in respect of them. The convictions on counts 3 and 4 should stand.
105 In light of McLure P's comprehensive analysis of the facts, it is unnecessary for me to canvass them.
106 I will deal first with the ground of appeal insofar as it concerns the appellant's conviction of count 4.
107 The appellant's argument with respect to count 4 may be dealt with shortly. In truth it amounts to an argument, by way of assertion only, that the errors in respect of counts 1 and 2 somehow 'wash over' to count 4. The facts and circumstances of count 4 and the appellant's defence in respect of that charge were quite distinct from counts 1 and 2. There is no reasonable possibility that any of the errors in respect of the directions given on counts 1 and 2 had any effect upon the jury's verdict of guilty on count 4. The conviction on count 4 must stand.
108 I now turn to the grounds as they relate to counts 1 and 2.
109 To prove these offences, the prosecution had to establish beyond reasonable doubt that the accused:
1. gained a benefit or attempted to gain a benefit, pecuniary or otherwise, for himself and that he did so;
2. by deceit or any fraudulent means; and
3. with an intent to defraud.
(Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215 [154] (McLure JA)).
110 The meaning of 'deceit' and 'fraudulent means' was discussed by Wheeler JA in Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221 [13] - [14]. In that case, her Honour adopted the statement by Buckley J in Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728, 732, that deceit means 'to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false'. 'Fraudulent means' encompasses all other means not in the nature of deceit which can properly be stigmatised as dishonest. I respectfully differ with McLure P in characterising this element as objective to the extent that the person practising the deceit must know or believe that the deceit was false. In saying this, I am not suggesting a trial judge is obliged to instruct a jury about this or the other elements using words such as 'objective' and 'subjective'.
111 The meaning of 'intent to defraud' in the context of s 409 of the Criminal Code (WA) was discussed in Bolitho. In that case, McLure JA said:
Apart from the public duty category of cases, all the reported cases in which an intent to defraud is an element of an offence involve a situation where the victim has been deprived of something and that thing has actual or potential economic value. Based on the authorities, there will be an intent to defraud if the intent is that the victim (1) suffer economic loss; (2) suffer an economic detriment by being deprived of property, money, services or other things that have an economic value (even if the victim had no intention to exploit that value or received full consideration for the same); (3) be at risk of suffering an economic loss or detriment; (4) be deprived of an opportunity to make an economic gain; (5) be deprived of an opportunity to prevent an economic loss or detriment. At its broadest, the common law expression in this context would encompass actual or potential detriment relating to the economic interests of the victim [152].
112 Buss JA said:
In my opinion, an accused will have an 'intent to defraud', within s 409(1), if he or she intends:
(a) to cause or induce loss, detriment or prejudice (including the risk of loss, detriment or prejudice) in relation to any lawful right, interest, opportunity or advantage (including any potential lawful right, interest, opportunity or advantage) of the victim, which has some actual or potential value; or
(b) to cause or induce a person to contravene his or her public duty by doing something that he or she would otherwise not have done or by not doing something that he or she would otherwise have done; or
(c) (perhaps) to cause or induce loss, detriment or prejudice (including the risk of loss, detriment or prejudice) to a non-economic right or interest of the victim such as private reputation or personal status.
It is unnecessary, with great respect, to make a determination in relation to the category in sub-par (c) above, which is based on McHugh J's observations in Peters at 525 [74]. The categories in sub-pars (a), (b) and (c) above are not intended to be exhaustive [174].
113 Although it hardly needs to be said, the second and third elements of an offence under s 409 are legally separate and distinct from each other: Bolitho [175] (Buss JA). Moreover, the person upon whom the deceit or fraudulent means is practised does not have to be the same person the offender intended to defraud. This said, in most but not every case, there will be a factual overlap between the elements of deceit and intent to defraud. Frequently, the victim of the deceit and the person the offender intends to defraud is one and the same. Further, the offender's intention to defraud may be inferred by his or her use of deceit or fraudulent means.
Intention to defraud and honest claim of right
114 Where a person is accused of an intent to defraud and that person raises a defence that he or she has an honest claim of right to the property or the benefit the subject of the charge, that person does not invoke s 22 of the Code. Rather, that person has put in issue the element of intent to defraud. In other words, a person who has an honest claim of this sort does not have an intent to defraud within the meaning of that element in s 409: Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445 [27], [28] and [35] (Templeman J). Of course, the State has the onus of proving an intent to defraud and thus must negate an accused's honest claim.
115 The cases are clear that a person can have an honest claim to property or a benefit even if the claim is erroneous under civil law or is unreasonable. A person can have an honest claim even if deceit or fraudulent means are employed to gain it: Peters v The Queen (1998) 192 CLR 493, 508; The Queen v Kastratovic (1985) 42 SASR 59, 65 (King CJ) and Roberts [140] (McLure JA).
The ground of appeal
116 Subject to what I have said, I agree with McLure P's analysis of grounds 1.1 and 1.2, as they relate to counts 1 and 2. I also agree with her analysis that grounds 1.3 and 1.4, as they relate to count 2 only, have been made out.
The proviso
117 My examination of the trial record reveals that the case against the appellant with respect to counts 1 and 2 was very strong and there was much material to seriously doubt the appellant's testimony. However, the deficiencies identified by McLure P in the evidence are such that I am unable to conclude that no miscarriage of justice has occurred, notwithstanding the errors made by the trial judge.
Bail pending appeal
118 I joined with the other members of the court in granting the appellant bail at the conclusion of the hearing of the appeal pending the disposal of the proceedings. I agree with McLure P that the merit of the appeal, along with the impairment of the appellant's right of appeal, constitute exceptional reasons pursuant to sch 1 pt C cl 4A of the Bail Act 1982 (WA).
Retrial or acquittal
119 I agree with McLure P, for the reasons that she gives, that the proper order in this case is for a retrial in respect of counts 1 and 2.
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