Jenkins v The Queen

Case [2004] HCA 57

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, HAYNE, CALLINAN AND HEYDON JJ

BRUCE DAVID JENKINS  APPELLANT

AND

THE QUEEN  RESPONDENT

Jenkins v The Queen

[2004] HCA 57

17 November 2004
M307/2003

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation:

P F Tehan QC with L C Carter for the appellant (instructed by Worcester & Co)

J D McArdle QC with J B Saunders for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Jenkins v The Queen

Criminal law – Direction to jury – Accomplice warning – Prosecution witness pleaded guilty to criminal offences related to charges against appellant – Testimony of witness substantially undisputed – Defence did not seek to attack credit of witness – Defence case relied in part on evidence of witness – No warning sought at trial as to reliability of witness – Whether trial judge obliged to warn jury that it would be dangerous to convict on uncorroborated evidence of an accomplice – Whether trial judge obliged to warn jury that evidence was potentially unreliable and must be subjected to careful scrutiny.

  1. GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ. Following a lengthy trial in the Supreme Court of Victoria before Coldrey J and a jury, the appellant was convicted of five offences of obtaining a financial advantage by deception, and five offences of dishonestly furnishing false information for the purpose of obtaining a loan.  He was sentenced to a term of imprisonment.  An appeal to the Court of Appeal of Victoria resulted in the quashing of the convictions for dishonestly furnishing false information, but the convictions for obtaining a financial advantage by deception were upheld[1].  The appellant argues in this Court that those convictions ought also to have been quashed, on the ground that the trial judge failed to give the jury an accomplice warning in relation to the evidence of a witness called by the prosecution.  It is common ground that the Court of Appeal dealt with that issue, adversely to the appellant, on the basis of a factual misunderstanding.  Nevertheless, the respondent contends that the appeal should be dismissed for the reason that, in the circumstances of the case, no such warning was necessary.

    The case against the appellant

  2. The offences with which this Court is concerned occurred in the period between May 1988 and August 1989.  The appellant was a property developer.  He, and companies with which he was associated, obtained financial accommodation in the form of credit or guarantee facilities from the Order of the Sons of Temperance National Division Friendly Society (OST).  It is convenient to describe those facilities compendiously as loans.  Under the Friendly Societies Act 1986 (Vic), OST was limited in the amount it could advance on the security of a mortgage over commercial land by a "loan valuation ratio" related…

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Jenkins v The Queen [2004] HCA 57
Case
[2004] HCA 57
Decision Date

CaseChat Overview and Summary

The appeal in *Jenkins v The Queen* concerned a criminal conviction where the appellant, Jenkins, alleged that the trial judge failed to adequately direct the jury regarding the evidence of a prosecution witness, Verebes. The dispute centred on whether the jury should have been warned about the potential unreliability of Verebes' testimony, particularly given his prior guilty plea to offences related to the charges against the appellant.

The High Court of Australia was required to determine whether the trial judge was obliged to warn the jury that it would be dangerous to convict on the uncorroborated evidence of Verebes, who had pleaded guilty to related offences. Furthermore, the court considered whether, even in the absence of an accomplice warning, the judge should have cautioned the jury that Verebes' evidence was potentially unreliable and required careful scrutiny.

The High Court dismissed the appeal, finding that the trial judge was not obliged to give the requested warnings. The court reasoned that the way the trial was conducted, the issues that emerged, and the use made of Verebes' evidence by both the prosecution and the defence militated against such an obligation. Crucially, the defence did not seek to attack Verebes' credit and, in fact, relied on his evidence to support its case. This tactical approach by the defence, which included not wishing the jury to know of Verebes' guilty pleas, meant that a substantial contest over the primary facts Verebes was called to prove did not arise. Consequently, the judge was not required to give a warning about the dangers of convicting on his evidence or about its potential unreliability.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution called independent expert evidence to establish the falsity of all the valuations. It was alleged that the valuation reports were false and misleading in material particulars, that the appellant knew that fact, and that the appellant intended the reports to go to OST in support of his loan applications. The first two of those allegations gave rise to the principal issues relevant to this appeal. The appellant did not give evidence. Bulfin was not called by either side.The evidence of Verebes The financial needs of the appellant, the acquisitions of land, the borrowings from OST, and the valuations were formally admitted at the trial. The main role of Verebes as a prosecution witness was to explain matters of detail in relation to the valuation reports, and to give evidence of his communications with Bulfin, the appellant and OST. O'Bryan AJA said in the Court of Appeal: "Without his evidence it would have been difficult to admit in evidence the valuation reports, or to explain how they came about". In relation to each count, the prosecution led expert evidence to prove that the properties were worth much less than the valuations of Verebes showed. The defence case did not accept that evidence. In considering the defence approach to the evidence of Verebes, it is important to bear in mind that the jury did not know, and the defence did not wish it to appear, that Verebes, by his pleas of guilty, had already admitted the falsity of the valuations. Plainly, cross-examining counsel did not want that to emerge. Furthermore, the evidence of Verebes was in many respects supportive of the defence case. There was, therefore, no attack in cross-examination on the credit of Verebes. Rather, the defence case was to challenge the inferences which the prosecution sought to draw from his evidence, and to use his evidence to justify competing inferences. In a few instances, where the evidence of Verebes was difficult to reconcile with a view of the facts for which the defence contended, the approach of cross-examining counsel was, in effect, to put his instructions to Verebes, elicit the response of Verebes, and leave the matter there. It is possible that, at that stage, no decision had been taken as to whether the appellant would give evidence. This did not amount to an attack on the credit of Verebes, with all the dangers that could involve. Not the least of those dangers was the possibility that it could in some way lead to a revelation of Verebes' conviction and sentence. Counsel's approach to the cross-examination of Verebes was one of understandable caution. In relation to count 2, concerning Glen Crag, the prosecution case was based mainly on the difference between the price for which the property was purchased on 22 April 1988 ($2.41 million) and the amount at which it was valued on 29 April 1988 ($6.67 million). However, Verebes gave evidence about the original inclusion, and later removal at the request of Bulfin, of an "as is" figure, as distinct from a figure assuming complete refurbishment and change of use. He did not say that the appellant spoke to him about that change. He also gave evidence about some rental figures, assuming refurbishment, that he said had been supplied to him by the appellant. That the appellant had supplied these figures was not disputed. In closing address, counsel for the appellant relied strongly on the evidence of Verebes that his instructions, including the instruction to remove the "as is" valuation, came from Bulfin. In relation to this count, the defence case drew support from Verebes.

Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ
In the alternative, it was submitted on behalf of the appellant that, even if the case did not call for a warning that it would be dangerous to convict on the evidence of Verebes unless it was corroborated, at least there should have been a warning of the potential unreliability of the evidence and of the need to subject it to careful scrutiny. The answer to that submission, once again, is related to the way in which the trial was conducted, the issues as they emerged, and the use that both the prosecution and the appellant sought to make of the evidence of Verebes. If there had been a substantial contest as to the primary facts which Verebes was called to prove, then there may have been force in the argument. That, however, is not the way in which the trial was conducted. A clear indication of that is the failure of defence counsel to seek any warning of the kind now suggested. Counsel could have sought a warning which did not identify Verebes as someone who might be an accomplice, or involve the trial judge in reciting the evidence that could be regarded as corroborative. Counsel's failure to do so was consistent with the tactical approach taken by the defence towards the evidence of Verebes. As the issues emerged at the trial, the judge was not obliged to give a warning.Conclusion No error has been shown. It is not necessary to consider the proviso. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ

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