Jenkins v The Queen

[2004] HCATrans 204

[2004] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M307 of 2003

B e t w e e n -

BRUCE DAVID JENKINS

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 JUNE 2004, AT 10.09 AM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:  If the Court pleases, I appear with my learned friend, MR L.C. CARTER, for the appellant.  (instructed by Worcester & Co)

MR J.D. McARDLE, QC:  If the Court pleases, I appear with my learned friend, MR J.B. SAUNDERS, for the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

GLEESON CJ:   Yes, Mr Tehan.

MR TEHAN:   Your Honours, we desire to present our argument on this appeal in three parts.  Firstly we will go to the case at hand and deal with two matters, firstly, why the witness Verebes was an accomplice and, secondly, point to the evidence as to why he was an accomplice.  Then we will move to the second part of our argument which will concern the authorities and the development of the law and, in particular, examine the, perhaps, competing schools of thought relating to an accomplice direction.  Thirdly we will move to the case against us and, in particular, why we submit that there is a miscarriage of justice in this case. 

Could we commence with the first matter by submitting that Verebes was an accomplice and firstly look at his status as an accomplice.  In our submission, he was an accomplice because he was a participant in the events and the offences with which Mr Jenkins was charged.  There was, it should be noted, no serious contest on this point at the special leave hearing. 

It is not clear whether the trial judge was aware that Verebes had, in fact, pleaded guilty to the same offences with which Mr Jenkins was charged.  The judge referred to the matter in his sentence at appeal book 1179, and if I could take the Court to that, at line 1:

In the course of this plea, I was referred to the sentences imposed upon Bulfin and Verebes.

Then in the second paragraph on that page, towards the end:

The valuer Verebes pleaded guilty to three counts of furnishing false information and expressed remorse for his actions.  He also undertook to give evidence for the Crown and was sentenced on that basis.  Only one count to which he pleaded guilty related to matters involved in this trial.  Those relevant included the Glen Crag and High Street, Southport buildings, the Ashmore Commercial Complex, the Dreamworld transaction, and the revaluations of the High Street and Southport properties and the Cairns Ferry Terminal Site.  The reward Verebes received for his criminality was the negotiated valuation fees.

In the Court of Appeal at appeal book 1280, which is in the same volume that I have just been reading from, paragraph 176 in the judgment of Acting Justice O’Bryan, his Honour said – I was not going to say this at this stage, but I will since:

No question can arise in the present case regarding the proviso, for the substantial evidence implicating the applicant in all the counts was that of Verebes.  Without his evidence it would have been difficult to admit in evidence the valuation reports, or to explain how they came about –

But the error is at paragraph 178:

Verebes was presented in the County Court on two counts of furnishing false information contrary to s.83(1)(b) of the Crimes Act 1958. They were representative counts and concerned valuation reports for three properties (count 1) and five properties (count 2), none of which was a property with which the counts against the applicant were concerned. The applicant’s offences were different and the properties involved were different.

At appeal book 1197, which again is in the volume that I am reading from, it is apparent - about halfway down the page one has the first presentment to which Verebes pleaded guilty and one will see from that that he pleaded guilty to, I suppose, a rolled-up charge, including the properties set out under the heading “Offence”.

All of those properties were the subject of presentment against Mr Jenkins, so that at the time Verebes is giving evidence in the trial of Jenkins, he had pleaded guilty to the same offences, and Jenkins, of course, had pleaded guilty to offences which involved the same properties.  Jenkins was on trial for the same offences, that is, furnishing false information, in respect of which verdicts of acquittal were entered by the Court of Appeal.

If one also stays with 1197 of the appeal book, one will see the other dramatis personae – to use Justice O’Bryan’s phrase – involved in this matter:  one Gaffney, who pleaded guilty; Bulfin, who pleaded guilty and was the result of a successful appeal by the Crown against inadequacy of sentence; Arthur Charles Brown, who also pleaded guilty; and Paul Allan Robinson, who was the investment manager at OST.  He pleaded guilty.  He did not give evidence in the trial of Jenkins, he was discharged without conviction and survived a Director’s appeal.  The only criminal to give evidence in the trial of Jenkins was Tibor Verebes. 

GLEESON CJ:   Mr Tehan, the warning that you say should have been given, expressed in very short form, was that it was dangerous to convict on the evidence of Verebes unless it was corroborated.  Is that right?

MR TEHAN:   Yes.

GLEESON CJ:   That would have to be qualified, would it not, by saying, to the extent to which Verebes’ evidence was in dispute, it would be dangerous to convict on that evidence unless it was corroborated.  Right? 

MR TEHAN:   Yes.

GLEESON CJ:   To what extent was Verebes’ evidence in dispute?

MR TEHAN:   It was in dispute on significant matters, your Honour.  We will take the Court shortly to what those matters were, and put to the Court the way in which his evidence was in dispute on each count in respect of which Mr Jenkins stood his trial.  I will be moving to that very shortly, your Honour.  That is the basis upon which we say there was error in the Court of Appeal and that Verebes’ evidence should have been the subject of a warning.

HEYDON J:   Could I just ask this, the second count against the appellant, for example, was dishonestly obtaining for Toptown Pty Ltd a financial advantage, and the first count against Mr Verebes, which is on page 10 of volume 1, used the words:

with a view to gain for himself or another or with intent to cause loss to another falsified a document –

Those are not, as a matter of words, the same charges, are they?

MR TEHAN:   Our client was on trial for furnishing false information, but he was acquitted by the Court of Appeal of those counts.

HEYDON J:   Yes, but do we not have to concentrate on the charges on which he was convicted and compare them – perhaps not for very long, but to start with – with the charges against Verebes to which he pleaded guilty? 

MR TEHAN:   Yes.

HEYDON J:   They are verbally different, but do you say that the material facts, which Verebes must have admitted by pleading guilty, would have justified him being charged and convicted of dishonestly obtaining a financial advantage for Toptown Pty Ltd?

MR TEHAN:   No, we do not ‑ ‑ ‑

HEYDON J:   Or any other count that suits.

MR TEHAN:   We do not quite put it that way, your Honour.

HEYDON J:   But do you not have to?  Does not Lord Simonds’ test in Davies v DPP require that?

MR TEHAN:   It may, your Honour.  We would submit that the proper test approved of by this Court in R v Pollitt is that of Mr Justice Sholl in McNee v Kay and we would submit that Verebes comes within that test, but even on the narrow test, whether he was a participant in the actual crime, there are two matters to be made.  First of all, the properties were the same properties and secondly, it was the same events, the same facts, the same transactions, the same factual matrix which led to his plea of guilty on these counts.  Those facts and transactions are common to the counts of obtaining financial advantage by deception.  Now, the test to which we refer is that set out in McNee v Kay at page 530 of the report where his Honour Mr Justice Sholl said at point 5 on the page:

However that may be, if I were free so to hold, I should consider the true principle to be that that person is an accomplice within the common law rule who is chargeable, in relation to the same events as those founding the charge against the accused, with an offence (whether the same offence or not) of such a character, and who would be if convicted thereof liable to such punishment, as might possibly tempt that person to exaggerate or fabricate evidence as to the guilt of the accused.

Your Honour, I accept the proposition that strictly speaking on Lord Simonds’ first limb in Davies v Department of Public Prosecutions that that narrow test probably does not apply here, subject to the two matters that ‑ ‑ ‑

GUMMOW J:   What is the rationale for Justice Sholl’s test, if that is the word?

MR TEHAN:   The test that his Honour proposed arose in the context of a case in Victoria concerning Ready and Manning.  It has long been held in Victoria or at least Ready and Manning stands for the proposition that an accessory after the fact is not is not an accomplice.

HEYDON J:   I think the answer to Justice Gummow’s question, or at least the answer that Mr Justice Sholl would offer, is found in the second sentence of the first paragraph on page 530:

The temptation to exaggerate or make false accusations would appear to be much more related to the nature and possible punishment of the offence of the witness than to its technical identity with that alleged against the accused.

MR TEHAN:   Yes.

GLEESON CJ:   But why is it limited at all in that way?  The warning in question is a warning about a danger and the source of the danger is a temptation to minimise your own role or exaggerate the role of the accused.  That is the danger about which the jury have been warned.  Does that temptation only exist in the case of witnesses who are accomplices in the narrow sense or accomplices in the slightly broader sense?

MR TEHAN:   It exists in both cases, your Honour.

GLEESON CJ:   But is it limited to those cases?

MR TEHAN:   Not necessarily.

GLEESON CJ:   Well, is the rule related only to accomplices in the narrow sense or accomplices in a slightly wider sense, or is it a rule that applies to anybody who might be tempted to minimise his own role or exaggerate the role of the accused, and is the case of the accomplice in the narrow sense or the accomplice in the wider sense merely one example of people in respect of whom such a warning ought to be given?

MR TEHAN:   The answer to that question involves consideration of whether or not the rule is a mandatory rule or discretionary rule.  If it is a mandatory rule, then it is limited to accomplices in the strict sense but it includes accomplices in the wider sense.

GLEESON CJ:   This is like the rule about warning people in relation to the evidence of victims of sexual offences, or what used to be the rule.  There are certain classes of person about whom the experience of the law is such that they will attract a warning, not because their position is necessarily singular, but because the experience of the law is that they always constitute examples of people where the danger exists or where the temptation exists.

MR TEHAN:   Traditionally, there are three categories that come within what this Court has said is the usual caution.  The first is accomplices, the second is complainants in a sexual case and the third one is children.  Now, sexual complainants have been the subject of a good deal of law and ‑ ‑ ‑

GLEESON CJ:   A good deal of politics, too.

MR TEHAN:   Children have been the subject of statute and we are left with accomplices.  That is the present situation, but to return to ‑ ‑ ‑

HAYNE J:   Is the law concerned to warn juries about matters that otherwise the collective sense of the jury might not consider?

MR TEHAN:   Yes.

HAYNE J:   Or is it concerned to deal with an issue in the case?  What is the relevant realm of discourse here?  The judge is not just making some ritual incantation, so what is the judge doing?

MR TEHAN:   What the judge is doing is warning the jury as to the reasons why there should be caution in the case of this particular witness, firstly, because of his status; secondly, because of the reasons for him being in that status; and, thirdly, then relating the facts in the case, the evidence in the case to his position.  It is those three ways in which we submit the warning should be drafted, but we accept the proposition now that it cannot be that there is some incantation that is just sort of pro forma.  It has to be fashioned to the case at hand.

GLEESON CJ:   Justice Hayne’s question raises this issue about whether the purpose of the warning is to draw the attention of the jury to something that is within the experience of courts that jurors might not realise.

MR TEHAN:   We would say that that is a purpose of the warning, particularly in the case of an accomplice because an accomplice, of course, may come across as a very convincing witness.  It is a bit like identification evidence which can be very subtle but intoxicating, so to speak.  I am thinking of what was said by this Court in the R v Domican, but jurors do not readily understand that the experience of the law is that there had been miscarriages of justice and the experience of the law, at least since the 17^th century and through to the State trials, has been that accomplices are in a particular category and that juries should be warned to have particular caution before they accept the evidence.

CALLINAN J:   Anybody who has ever called an accomplice in a criminal trial or who has prosecuted a criminal trial knows that one can never be entirely certain what the accomplice is going to say.  There are all sorts of tensions involved in the accomplice’s giving evidence, even though the accomplice had been dealt with.  It is a very, very tense situation and I think the law is conscious of that.

MR TEHAN:   Yes.  If the warning is mandatory, it cannot be mandatory to the extent that there are not some cases where a Court of Appeal will set aside a conviction because an accomplice warning is not being sought.  Take, for example, the case of R v Gallagher where a number of property developers gave evidence in the trial of Mr Gallagher in Melbourne and an accomplice warning was disavowed by counsel for the applicant on his trial.  He said, “I don’t want an accomplice warning.  These witnesses are giving evidence in my favour.  Why would I want an accomplice direction?”  On appeal it was argued before a Bench presided over by Sir John Young that an accomplice direction should have been given and the court said no.

GLEESON CJ:   Whatever warning is given, it must be qualified by reference to the extent to which the evidence is in dispute, must it not?

MR TEHAN:   Exactly, your Honour.

GLEESON CJ:   It is just common sense.  An accomplice can get into the witness box and give a whole lot of evidence that is common ground.

MR TEHAN:   Indeed, your Honour, with the greatest of respect, we would adopt what your Honour said in a New South Wales case, I think the name of which is Jamieson, where your Honour said, in effect, that the accomplice direction should be confined to those matters in respect of which inculpatory evidence is given by the witness. 

To return to where I was, which was at appeal book 1281 in the judgment of the Court of Appeal, Acting Justice O’Bryan continued at line 17:

In the evidence of Verebes, it was never suggested that he was participes criminis with the applicant.  He was proffered as an incompetent and/or inexperienced valuer and under the influence of Bulfin.  It could not have been found by the jury on the balance of probabilities that Verebes was a principal or accessory before the fact to the applicant’s offending.  Had the jury been instructed on the meaning of accomplice (category 1 in Davies) it could not have found that the applicant and Verebes were accomplices.  Neither counsel for the applicant nor counsel for the prosecution would be likely to have asked the jury to do so.  It simply happened that the applicant made use of Verebes’ incompetence as a valuer and biddable nature in the hands of Bulfin, to the advantage of the applicant.

Now, the error therein is his Honour confining accomplice to category 1 in Davies.  We obviously take issue and, indeed, we will show the way in which issue was joined upon the other matters that his Honour states.  We would submit that Verebes was dishonest, unreliable, had a motive of his own for giving evidence against the appellant.  He had a pre‑existing relationship with Bulfin in respect of whom he admitted he was compliant.

If I could finally finish on this matter:  I said that McNee v Kay had been approved of by this Court.  The approval is in the judgment of Justices Dawson and Gaudron in the case of Pollitt at page 599 and reference might also be made to footnote (75).

GUMMOW J:   What is that reference?

HEYDON J:   It is 174 CLR 558 at 599, footnote (75). But that is pretty much out to the remotest edges of obiter dicta, is it not?

MR TEHAN:   It may be, your Honour.  That may be so.  Could I then now move to the reasons why, in our submission ‑ ‑ ‑

GUMMOW J:   But is McNee generally followed in Victoria?

MR TEHAN:   Yes, it is, your Honour. 

HEYDON J:   Except that Mr Justice Sholl said he could not apply his view of the law because of R v Ready and Manning.

MR TEHAN:   He could not in that case, because of Ready and Manning, but that has to be seen in the context of that case.  If I could go now to the reasons why we say that Verebes was an accomplice.  The traditional reasons apply in this case.  He had received a reward, his reward being a discount in sentence because he was going to give evidence in our trial.

GLEESON CJ:   Was he at risk of losing that discount?  Is there legislation in Victoria of the kind that I think there was in New South Wales that says that discount is conditional on how you perform?

MR TEHAN:   There may not have been at the time but there is now in the Sentencing Act.

HAYNE J:   I think not then.  I may be wrong.

MR TEHAN:   No, not then.  I agree your Honour, not then, but there is now.  There certainly was in the Commonwealth Act and New South Wales, I think, preceded Victoria, but the Court is obviously familiar with the provision, but there is now.  I think it is contained within section 5 of the Sentencing Act.

HEYDON J:   Your point is that, having got a reduced sentence on a promise to give certain evidence, that might taint his evidence.

MR TEHAN:   Yes, he got his reward, and it does not matter that he has been sentenced because ‑ ‑ ‑

HEYDON J:   Was he cross‑examined along those lines to suggest that he was lying to stick to the same story which had brought him the advantage?

MR TEHAN:   Your Honour, can I answer that question when I come to the actual evidence and the way it was put.

HAYNE J:   We will hold you to that, Mr Tehan.

HEYDON J:   It would be nice to know at some stage, but it does not have to be answered now.

MR TEHAN:   The fact that he had pleaded guilty was not put to him and it was not put to him directly, “Look, you have got a reward for giving evidence in this case”.

GLEESON CJ:   Was it put to him that he was telling lies?

MR TEHAN:   It was certainly put to him he was telling lies.  That is why I raised this matter at the outset because it is not clear, from our reading of the transcript – in fact, we cannot find in the initial stages of the trial the judge being informed that Verebes had pleaded guilty and received a certain sentence.  It comes up in the sentence.

GLEESON CJ:   You can understand why trial counsel would not have wanted to rub the noses of the jury in that fact.

MR TEHAN:   Yes, and we make that point in our outline, in our reply, I think.  I mean, this was one of the arguments that was put against us on the special leave application, but the fact of the matter is that the falsity of the valuations being an issue, one can understand why counsel perhaps decided not to ‑ ‑ ‑

GLEESON CJ:   Mr Tehan, what was the defence case?

MR TEHAN:   The defence case was that Mr Jenkins did not know, did not knowingly engage in obtaining a financial advantage by deception.

GLEESON CJ:   Let me be a little more specific.  Was the defence case that the valuations were not false?

MR TEHAN:   That was part of the defence case.  There were three issues in the case.  The first issue was, were the valuations prepared by Verebes false and misleading as alleged?  The second issue was, if yes to that question, did the appellant have knowledge that the valuations were false and misleading and, more specifically, did he issue false instructions to Verebes for the purpose of producing inflated valuations?  Now, within that second issue, there were these sub‑issues.  Firstly, who provided the instructions for the valuations?  Was it Jenkins or was it Bulfin or was it both of them?  Secondly, did Jenkins actually see the valuations?  Thirdly, did Jenkins falsely manipulate the valuations through the provision of information to Verebes, or did Verebes come across that information in some other way?

GLEESON CJ:   What, in summary form, did Jenkins have to say about those issues?

MR TEHAN:   Jenkins challenged – what he said was that Bulfin provided the instructions.  His defence was that Bulfin provided the instructions, that in some instances he did not see the valuations, and that he did not falsely manipulate Verebes.  So he challenged each of those three matters.  The third matter, the third issue, which related to the actual obtaining of funds was, did the valuations trigger the advances?  Because there was a wealth of evidence to suggest that OST would have advanced the moneys that they did in any event.  Now, I see your Honour Justice Hayne, but the fact of the matter was, it was an issue in the case.  If one understands, I suppose, even a cursory knowledge of the property market, particularly in Queensland in the late 1980s, that was part of the defence. 

Now, can I return to where I was.  So what are the traditional reasons?  Firstly, a reward – he got his reward.  Secondly, the transfer of blame.  It was said that pressure was applied to Verebes by Jenkins.  That was challenged.  It was said ‑ ‑ ‑

HAYNE J:   Sorry, it was said by whom that pressure was applied?

MR TEHAN:   Verebes himself at one stage said it, but that was challenged.  It was said that false information was supplied by Jenkins.  That was challenged.  So that raises the issue of transfer of blame.  The third matter, the third traditional reason that we say applies in this case was looking after friends.  Who was the friend?  Bulfin.  He was looking after Bulfin.  His real relationship was with Bulfin and he was suggesting that instructions came from Jenkins when in reality, so the defence went, they came from Bulfin.

The fourth reason was that you should not believe a confessed criminal.  He was the only criminal called at Jenkins’ trial.  Robinson was not called.  Setterfield was not called.  He admitted that the valuations were not suitable for mortgage lending purposes.  I can give the Court a reference to that.  It is at page 363, point 7 of the appeal book.  He admitted that he conducted a sloppy practice, page 360, line 19.

The final reason, we would submit, that applied in this case was that he was minimising his own role, a classic example of which might be count 7, to which we will shortly turn.  So, in summary, on this first point, what we submit is that he had the status of an accomplice, and, secondly, some of the traditional motives or reasons for activating the warning apply in his case.

Let us now turn to the second aspect of this first part of the case and examine the evidence calling for the warning.  I have indicated to the Court what the three issues were.  Verebes was most relevant on the second issue:  did the appellant have knowledge that the valuations were false and misleading and, more specifically, did he issue false instructions to Verebes for the purpose of producing inflated valuations?

He was most relevant to the Crown on that second issue to place before the jury the inference that Mr Jenkins had knowledge of the falsity of the valuations.  Mr Justice O’Bryan, I think I have read this already, at appeal book 1280, paragraph 176 in the judgment of the Court of Appeal said that in not applying the proviso that he gave the substantial evidence implicating the appellant.  Indeed, the extensive admissions of fact were made in the context of Verebes being called as a witness.  He gave meaning to the Crown case.  He shaped the valuations.  He flushed out the case against the appellant and we observe that the valuations of Verebes were actually built in to the very charges that Mr Jenkins faced.  They were the particulars of the deception that your Honour Justice Heydon referred us to earlier when looking at the presentment against our client.

So having said that he was a significant person in the Crown case against us, in particular to that second issue, we now turn to the attack on Verebes.  We include in this attack the way in which – because there was an attack on the way in which the Crown relied upon Verebes to prove its case, and in this respect we are at paragraph 19 of our submissions. 

Can we commence this by taking the Court to appeal book 853, which is in volume 3, the judge’s charge.  The judge, at 853, line 9, was dealing with witnesses and directing the jury upon witnesses.  This is vital, of course, in relation to our appeal.  His Honour said:

After considering the evidence which is relevant to a particular matter in its individual parts and then as a whole, you should be in a position to determine the facts one way or the other.  As far as any individual witness is concerned, it is entirely within your province to accept the evidence of that witness totally, to reject it totally, or to accept or reject it in part.  No‑one can tell you how to regard or how to approach any particular witness’s evidence in this regard.

We would submit that that sentence is very important in the context of this case.  His Honour then moved to – I take the Court now to the next page, page 854, at line 28:

In the course of his final address Mr Lincoln has criticised parts of the evidence of Mr Verebes and Mr Curtin.  You will have heard those criticisms and you will give them whatever weight you feel they deserve.

We would submit that the effect of this was – we know no warning was given, but the effect of what his Honour was saying was, “Treat Verebes just like any other witness”.  There is no judicial weight – we know there is no warning, so I suppose whether there was any judicial weight given to a warning answers itself. 

GLEESON CJ:   What were the parts of the evidence of Verebes that were criticised, and what was the ground of criticism?

MR TEHAN:   Well, let me go to them, your Honour.  We have a list of about 10 matters.  What were the criticisms?  To look at what the criticisms were, referred to at line 30, appeal book 854, if we could go to them, the first one was the Crown assertion that an adverse inference as to knowledge could be drawn from the relationship between Verebes, Bulfin and Jenkins.  That matter was challenged.  In his final address, counsel for the applicant, at page 683, line 14, said – and it is important to note that just prior to line 14, in the previous paragraph, counsel for the appellant indicated the way the Crown put its case, that is, having regard to the relationship between the three you could infer guilty knowledge to Mr Jenkins.  Counsel said:

What did you hear?  What inference can you draw about the relationship of Mr Jenkins and Mr Verebes and Mr Bulfin?  What can you draw?  What evidence is there before you that there was a relationship between Mr Bulfin and Mr Jenkins?  Mr Jenkins wrote a few letters.  Did he have social contact?  Go out for dinner, drink coffee together, drink Martinis together?  What relationship was there between Mr Bulfin, Mr Verebes and my client?  Did they go out together?  Did they have social contact?  Did they mix together, go into business together, visit each other?  There is not one jot of evidence about it.  And the learned prosecutor says to you, “Right through this case you can infer the relationship between these three men.”

What inference can you draw?  I suppose you can draw an inference there wasn’t a relationship.  No evidence has been led about this.  The only relationship is that my client wrote to Mr Bulfin from time to time on a purely business level.  There is no – I mean, they call Mr Verebes.  Mr Verebes was never asked one question, “Did you have a social relationship, or a relationship with my client?”  Not one thing has been asked about that.  Their witness, they asked him – they didn’t bother to ask him.  And he’s never mentioned there was any relationship with my client other than anything ‑ ‑ ‑

GLEESON CJ:   I suppose in a theoretical sense you can describe that as “a criticism of the evidence of Mr Verebes”, but it is not a challenge to his veracity.

MR TEHAN:   No, and that is why I said – I mean, we put this on two levels.  First of all, it is a challenge to the way in which the Crown relied upon Verebes to prove its case and, secondly, the challenge is to – and I will take the Court to – I understand what your Honour the Chief Justice is interested in – it also included a challenge to his veracity but ‑ ‑ ‑

HAYNE J:   What is the best example you have of a challenge to Verebes’ veracity?

MR TEHAN:   Let me go ‑ ‑ ‑

GLEESON CJ:   There has to be something to warn them about.

MR TEHAN:   Yes.  Well, can I go through them now?

GLEESON CJ:   Well, go to the best one.  What is the best example of the defence challenging the truthfulness of the evidence of Verebes?

MR TEHAN:   Page 780 to 781.  This is a challenge in relation to his veracity, we would submit.  Page 781, line 16:

It’s like sort of turning it back on my client and saying, “Because it went in there, I blame him because I had been so negligent, I blame him because I didn’t do my job, I blame him.  The problem there is, I mean, I don’t mean to be over critical, I said to him, “But the problem there of course is that a valuer should check all these sorts of things?”  And he says, “In hindsight I should have.”  In hindsight – that’s helpful – that’s really helpful – I mean, while my client sits there because of his oversight and has to be judged by a judge and jury in the Supreme Court of Victoria, thank you very much, Mr Verebes.

And we would submit that that is a classic example calling for a warning.  Counsel is actually putting it that Verebes puts the blame on Mr Jenkins.

GLEESON CJ:   What is the evidence of Verebes that was challenged in that part of the address?

MR TEHAN:   The evidence of Verebes that was challenged in that part of the address was the schedule of the tenancies in relation to count 7.

GLEESON CJ:   But the theory has to be, has it not, that Verebes was not telling the truth about something and the jury should have been warned that he had a motive to at least shade the truth?  Well, what was he not telling the truth about here?

MR TEHAN:   What he was not telling the truth about there was that he maintained that the tenancies were actual tenancies.  What was put to him was that they were proposed tenancies, proposed rental tenancies.  In fact, on count 2, the Glen Crag count, he, in fact, admitted that the tenancy renting schedules given to him were proposed figures and yet on count 7 he said, no, they were not proposed.

CALLINAN J:   But the appellant never disputed that Verebes relied upon him, did he?

MR TEHAN:   Yes, he did, your Honour.

CALLINAN J:   But he must – I mean the evidence was really one way, was it not, that Verebes relied at least in part upon your client.

MR TEHAN:   His case was that the true relationship here was Verebes, Bulfin and Robinson, two of whom you have not heard a word from.  That is what his case was:  “I wasn’t involved in this relationship”.  Now, if I could go back to where I was.  At 694 of the appeal book, which again is in the same volume, counsel said at line 6:

Let us start with Mr Bulfin.  If I could use the vernacular, he was a crook.  An absolute crook.  So crooked was he, the Crown couldn’t call him.  Doesn’t trust a word he said.  You wouldn’t, would you?

Then at 695, counsel said, in relation to Bulfin: 

On top of that, his relationship with Mr Robinson was extremely close.  Do you remember Mr Archer said when I asked him, they had a very close relationship.  And they, with Mr Setterfield, were running joint ventures.  Bulfin, Robinson and Setterfield. 

Then further on, on that page, line 28:

So in relation to these transactions involving Mr Jenkins, he got half the establishment fee –

it is a reference to Bulfin –

Let us put it no more than that.  And on top of that, we know, and I will put it on the minimum figure from a letter, I think DGA 93, Mr Archer told us – and I went through some of them with him ‑ there were the other transactions that McKinley Wilson and Verebes were in cahoots together with on inflated valuations.  So he got his cut on those.

In other words, what was being put was that Verebes was a crook with Bulfin.  Bulfin is a crook and so is Verebes.  At page 699, this is down under count 2, line 8, referring to Bulfin:

So he wanted the “as is” figures out, and that is exactly what Verebes says.  He never said Mr Jenkins came along and said, “I want the ‘as is’ figures out”, did he?  Of course he didn’t.  He didn’t care whether it was “as is”.  Didn’t know there was an “as is” figure in there, or didn’t know if there was one in there.  Had no idea what the valuation is.  If he did, I suppose he didn’t really care as long as he got the money out of OST. 

In other words, what was really being put was that Verebes was prepared to do whatever Bulfin wanted.  At page 700, line 15, he turned to the witness Verebes and asked this:

What about Mr Verebes?  What about Mr Verebes?  Mr Verebes.  He comes out into the private world.  Oh, he is a fine valuer.  Top notch valuer.  So what does he do?  Why does he need these people?  Because a little bit of mutual necessity there, isn’t there, when you think about it.  He comes out, and he tells us, and he says, not long after he comes out he comes into contact with Mr Bulfin, and I asked him, “You regarded Mr Bulfin very highly, didn’t you?”  He said, “Yes, it is fair to say I was quite impressed by Mr Bulfin.”  “Impressed by Mr Bulfin.  You regarded him highly and he began to send you work on a regular basis?”  Answer, “Yes.”  Indeed, it is right to say you did a great number of valuations for Mr Bulfin in the next couple of years?”  “Yes, that would be correct.”  I bet he did.  All inflated, weren’t they?  Well, he agreed.  “Indeed, not only did he provide you with work, but he became your major supplier of work, didn’t he?”  “He was the largest source of work, yes.”  The largest source of work that you had –

And then he went on and commenced at line 11 to criticise the way in which Verebes did his valuations:

Fell into some very bad ways in relation to valuations.  He said, “Yes, I did.”  “You listened to advice from Mr Bulfin?”  “Yes.”  On many matters he took advice from Mr Bulfin.  Mr Bulfin wasn’t a valuer, but he took advice, like not putting in “as is” valuations.  Like inflating it up.  “And if he requested from you, you would carry them out?”  “Yes, he was my major client . . . I wanted to retain Keith Bulfin’s business.  I was compliant.”

Then at line 26:

“So your very survival, both financially and job wise, depended on the existence of Novak Tonkin?”  “Yes.”  “On the existence of Novak Tonkin on the work supplied to you by Mr Bulfin?”  “Yes, I suppose it would be fair to say that.”

Mr Verebes, out of these transactions, made nearly around $100,000.  $9,000 was his fee on count 2, Glen Crag, $16,000 on High Street, $23,000 on Ashmore, $4,000 on Buderim and $50,000 on Dreamworld. 

GLEESON CJ:   Is there anywhere in the judge’s summing up to the jury where he states in a summary form these arguments that we are looking at at the moment?

MR TEHAN:   Yes.  He does put the defence case on Verebes in the sense that he – he does do that, your Honour, and I am going to take the Court to that in due course.  At 704 at line 20, referring to evidence that Verebes gave, he said:

I was very much in awe of him.”  Isn’t that nice.  The Crown say he influenced him.  Remember, he kept on saying he was in awe of him.  What was he supposed to do?  What is my client supposed to do?  Did he know he was in awe of him?  Did Mr Verebes ever say, “Look, I am in awe of you”?  No evidence he ever told him.  Was my client supposed to have a sign on him in bright lights, “You are in awe of me.”  Rubbish.  In awe of him.  In awe of him.  Maybe he was, but did he ever convey – ever come round to Mr Jenkins and say, “Look, I accept what you say, I am in awe of you, honourable sir, I am in awe of you.”  Gosh, this is a court of law.  In awe of him.  That is the best they could get out of him.  He never said once, “He made me put in a valuation.”  Not once.  He never said once, “He forced me to do something.”

Further on on that page, 705, what was put:

Now, if they were in cahoots together, if Jenkins was in cahoots with Verebes, and he wanted, above all things, he wanted that Theme Park –

referring to Dreamworld –

the one thing he would have wanted, according to the Crown, was that valuation had to go up.  What does Mr Verebes say to my client, “I am not going to increase the valuation.”  So much for awe.  What does he do?  He races round and he goes to see his buddy and says, “Hey, he wants to increase it.”  What does Bulfin say?  “So he wants it to go up?  More percentage for me.  Shove it up, sonny boy, this is the way you do it.  You change the goodwill.”  “Oh”, says Verebes, “so I changed the goodwill.”  Didn’t consult him about changes to the goodwill, did he?  Not one scrap of evidence he even asked him about the goodwill.

That is referable to the Dreamworld account.  So that what was being put was that there was no close relationship ‑ ‑ ‑

GLEESON CJ:   It looks as though, at page 706, the jury were looking askance at counsel at this stage.  Page 706, line 9.

MR TEHAN:   It was just before lunch.

HAYNE J:   That is called “the atmosphere of the trial” I think, Mr Tehan.

MR TEHAN:   I think it probably is, your Honour.

GLEESON CJ:   Eyeballs were rolling.

MR TEHAN:   What was being put really was that Verebes was not in a close relationship with Jenkins at all, that ‑ ‑ ‑

GLEESON CJ:   Yes, but it seems to have been put on the basis of what Mr Verebes said or did not say, rather than on the basis that he was a liar.

MR TEHAN:   What was being put was that there was no relationship where pressure could be, and that thereby there was no pressure exerted by Mr Jenkins.  The pressure was coming, so it was being put at these pages, from Mr Bulfin.  That was the real relationship.  At 709, at point 4 on that page he says he is going to suggest after lunch that the valuations are “useless” and at line 9, he says, and this is in the course of a sentence, I know:

the higher they could get up, the more money they could make, that is Bulfin, Robinson, Setterfield.  That is why the valuations were inflated, and that is why they have been inflated since Mr Verebes started working with Mr Bulfin, and that is why they were inflated.

At 725, point 8 on that page, he turned to the evidence of Mr Verebes’ reputation.  He referred to the evidence of Mr Archer, a solicitor, at line 24 and ‑ ‑ ‑

HAYNE J:   Does the judge accurately summarise the argument at 1131 to 1132, namely, Verebes had an unfortunate reputation.  The submission was that there was no evidence Jenkins knew about the reputation.  Is that the nub of it?

MR TEHAN:   It is, your Honour, and that argument was put at 727 at ‑ ‑ ‑

HAYNE J:   Do you challenge the judge’s summary of the way the defence put its case?

MR TEHAN:   No.

HAYNE J:   It is a summary that begins at 1125 and continues then.

MR TEHAN:   No, your Honour.  Indeed, we say that the judge’s charge is really a much better way to get a summary of the evidence in this case.  Although the Crown summary is before the Court, there are some ways in which that – I mean it has largely drawn the overview from the reasons of sentence and there are some concerns about that, one of which I will come to in a moment.

HAYNE J:   Do we find whether in the judge’s charge or elsewhere a record of a submission by the defence at trial that evidence given by Verebes should be rejected?

MR TEHAN:   Yes.

HAYNE J:   Where?

MR TEHAN:   I was going to come to that, your Honour, when I dealt with the particular counts.  I will do it in relation to count 2, which is the first count.  Count 2 at 871, line 23: 

The Crown assertion that it could be inferred that the accused knew the terms of this and, indeed, the other valuations of Verebes, was challenged by the defence.  It was argued that the relationship between Jenkins, Bulfin and Verebes claimed by the Crown was not substantiated by the evidence, albeit Jenkins wrote Bulfin some letters and spoke to Verebes on occasions.  The defence put it that the criminal, Bulfin, stood to benefit from his take of the borrowings, and the unsavoury valuer, Verebes, was dependent upon Bulfin for his livelihood; between them, they had a motive to inflate the valuations.

In these circumstances, it was argued that Jenkins’ awareness and participation was not required.

So the judge is putting the challenge that was made on that count.  That count was one where the “as is” valuation was removed on Bulfin’s request.  Verebes said he could not recall discussing the matter with the appellant.  The completed valuation was sent to Bulfin.  He could not recall providing even a copy to the appellant.  The valuation, he said, was on a construction basis; it was not the practice to include the purchase price. 

On this count what the Crown were trying to say was that the relationship of Bulfin to Jenkins showed that Jenkins must have known of the falsity of the valuation but, as I have just said, it was Bulfin who removed the “as is” figure and it was Bulfin who had the relationship with Jenkins.  If one goes back to the address of counsel at 735 of the appeal book, line 28, in dealing with this count, that is count 2, he said:

I mean, let’s go to Glen Crag, take Glen Crag, the first time my client had ever met the valuer.  I don’t think he even met him there.  One phone call.  Indeed, Verebes never said he had any discussions or thinking to do with Glen Crag, he just got documents for it.  Didn’t get any instructions from my client.  Bulfin gave his instructions.

Then at the bottom of that page, line 24 – I have already referred to the fees that Mr Verebes got out of these properties – he made the point:

I say to you, beyond a shadow of a doubt it had to be that.  That is, Mr Verebes’ income wasn’t going to come out of Mr Jenkins.  His income was going to come from Mr Bulfin.

In other words, the true relationship was one between Bulfin and Verebes, and Jenkins was not part of that relationship.  Now, your Honour Justice Hayne referred me to the evidence of Verebes’ reputation and the summary of it.  At page 729 he said, referring to Archer, the solicitor:

So other people knew he was a dishonest man.  That he had this reputation for inflating, and he’s come clean about it, he did inflate these valuations.  But there is no evidence my client ever knew about – nobody warned him to be careful of Mr Verebes when he came along to dealings with him.

Described by counsel as “a dishonest man” and having a reputation for dishonesty.

HEYDON J:   Have you not got to find a piece of evidence‑in‑chief of Mr Verebes that the Crown considered to be an important element in the case and have you not then got to find some cross‑examination attacking that evidence and then find something in this address to the jury?

MR TEHAN:   Yes.  We can do that by ‑ ‑ ‑

HEYDON J:   Mr Lincoln seems to be taking Mr Verebes and running his case accepting the evidence.  He is not attacking his credit in these passages.

MR TEHAN:   It is fair to say this, your Honour, that on some counts, for example, count 2, the Glen Crag count, Verebes gave evidence which was favourable to the appellant’s case in part.  We concede that there are some parts of Verebes’ evidence which are favourable to the appellant, but we submit that that does not stand in the way of our ultimate submission that a warning should have been given.

GLEESON CJ:   Well, it might indicate why counsel would not have been asking the judge to warn the jury of the danger of accepting the evidence of Mr Verebes.

MR TEHAN:   Well, we will come to that in due course.  Our submission is that it was just never ventilated, it was never discussed.  No one raised the issue.  It should have been raised.  There was no forensic advantage to the appellant by not having a warning in this case.  A warning could have been crafted to deal with the case.

GLEESON CJ:   But warnings always have to be related to the evidence in the case.  They are not just general theoretical statements.

MR TEHAN:   Well, your Honours, let us go to counts 5 and 13.  The Crown case was that Jenkins set out to deliberately inflate the valuation the subject of these counts by providing false information to Verebes as to Porsche taking a leasehold on the ground floor of the premises the subject of that valuation. Now, in evidence‑in‑chief at page 365, which is in volume 2 of the appeal book, at line 17 Mr Verebes was asked:

Mr Verebes, do you see there opposite the heading, “Economic Aspect” a statement that you had been “informed that ‘Porsche’ have agreed to lease the ground floor for a vehicle showroom/workshop as well as office space in the building on completion of the proposed redesign and conversion”.  Did you have such information?---Yes, I did; this is the information that I got from Bruce at the time, and it seemed to be supported by the fact that his architect had drawn up plans showing that the building would be signage to Porsche.

Did you do anything to confirm that Porsche had agreed to lease the ground floor for a vehicle showroom/workshop as well as office space?---No, I did not.

Now, in cross‑examination, if we go to appeal book volume 2A at 390.40 at line 19, counsel is cross‑examining upon this alleged conversation with Mr Jenkins:

But let me just, first of all, examine that.  My client told you, I suggest, that Porsche were interested in taking the position – there was a possibility that Porsche were interested in taking a lease in that building?---As I say, I can’t recall the exact wording of the conversation that I had with Mr Jenkins at that time. 

And at 390.41, line 3:

But you would agree with me, there is many a slip between cup and lip.. I mean, somebody can say to you, “I am hoping to get Porsche as a tenant and here are the drawings all set up for them”, but the tenant, especially in big business these days, the tenant may say, “Well, I have thought about it, but I am not going to take up that lease”?---That is quite possible. 

Then in re‑examination at 390.79, line 3, he said:

You said yesterday, when you were cross‑examined, that it’s possible that Mr Jenkins may have put it no higher than that Porsche are considering taking up a lease.  Do you remember saying that?---It is possible, but that’s not how I recall it.

If that’s the way it was put to you by Mr Jenkins, that Porsche were considering taking up a lease, would you have set out that portion of the report in the way that you did?---It would be highly unlikely. 

HAYNE J:   It seems that the submission made by Mr Lincoln, at least, as recorded by the judge at 1138, is that “Verebes was not the most reliable witness on this issue”.

MR TEHAN:   Yes, but it was important because what Verebes was saying, in re‑examination, at least – he was drawing away from what he had conceded in cross‑examination, that it was possible that this was given, and he said it would be highly unlikely that he would not have set it out unless it was the subject of information provided to him by Jenkins.  In other words, Jenkins was manipulating Verebes to falsely inflate the valuation in relation to this count.  The Crown addressed on this at 616, which is in ‑ ‑ ‑

GLEESON CJ:   Could I just ask you a matter of fact.  Did Verebes plead guilty?

MR TEHAN:   Yes.

GLEESON CJ:   Well, I think I can understand why Mr Lincoln was handling Verebes with kid gloves.

MR TEHAN:   Ultimately, what is important is the way that the defence went to the jury about Verebes, but ‑ ‑ ‑

HAYNE J:   Did the jury know that Verebes had been charged, or pleaded guilty, or had been sentenced?

MR TEHAN:   No.

HAYNE J:   Did it know any of those facts?

MR TEHAN:   No.  At page 616, which is in volume 4, the Crown’s submission on this count was at line 9:

Mr Jenkins set out to have Mr Verebes, a man who was in awe of Mr Jenkins, produce a false valuation.  And that is why the material was presented in relation to Porsche, which was quite wrong. 

One can see that there was a real challenge on that matter.  The challenge is at page 769, at line 17 – he is on another matter:

So, in my submission to you, the whole of this valuation was done – it wasn’t done terribly well, I mean, was it, by Mr Verebes.  I mean, the mathematical errors were horrendous, and the capitalisation rate was wrong. 

Now, there has been criticism made, great criticism about the fact that my client told him Porsche were going to be tenants.  Of course, you immediately assume – it’s interesting, isn’t it – immediately assume, immediately assume what Mr Jenkins said was Porsche were going to be tenants. 

Then he referred to the evidence of Mr Watson and he then, at 771, put that he “didn’t bother to check” it at line 11.

GLEESON CJ:   There is nowhere in the cross‑examination where the cross‑examiner puts to Verebes the matter about which the judge should have warned the jury?  There is nowhere where the cross‑examiner puts to Verebes that he had a motive for dissembling by reason of his own complicity?

MR TEHAN:   I do not think that is true, your Honour, because what he was putting was that he was relying at 736, line 24 - I have read this already - he was putting that Verebes was getting his income from Bulfin rather than from Jenkins.  In other words, he was getting a cut out of it and in relation to Dreamworld he actually said, Verebes said “Yes, it was in my interests to inflate the valuation because I was going to get 50,000 out of it.”

HEYDON J:   Where is that reference - if you could call that up?

MR TEHAN:   We will call that up for the Court.  Can I stay with this matter of the instructions coming from Bulfin rather than from Verebes and the relationship between Bulfin and Verebes.  At 731, counsel referred to a letter from Mr Archer and this is a good example of the way in which counsel was putting it that instructions were from Bulfin and not Jenkins.  In order to understand it, can I give this background.  Curtin, the investigator, questioned Archer, the solicitor, as to why reports were addressed to McKinley Wilson rather than OST.  The evidence concerning that matter is in volume 1 at page 169, commencing at line 24:

We are advised by McKinleys that when OST had expressed a definite interest –

and he is reading the letter –

in this transaction they contacted the valuer and instructed him to prepare the appropriate valuation reports.  However, due to the complex nature of the security properties, the valuer was advised to contact Mr Bruce Jenkins to obtain confirmation of various details and to arrange full inspections of the security properties.  As you will be aware, it is not unusual for valuers to obtain information from borrowers in order to complete their reports.  We do not believe that it is accurate or correct for a valuer to state that instructions come from a borrower merely because certain information utilized to complete the report was obtained directly from a borrower.  Please find enclosed a copy of a letter from McKinleys wherein it is confirmed to OST that instructions for the valuations were originated from McKinleys office.  Accordingly to the best of both our knowledge and OST’s knowledge the valuations and revaluations relied upon by OST in the Dreamworld transactions were not obtained by Mr B Jenkins and the valuer was engaged independently of the owner of the land.”

Was that what you wrote to Mr Curtain in that letter?‑‑‑It is.

And as far as you were concerned that was the truth of the matter, was it not?‑‑‑Yes.

In other words, that is not mentioned in the Crown summary of the evidence, but the reality is, in our submission, that when you marry it with what appears later on in the address at appeal book 731 to 732, what was being put was that the instructions were from Bulfin, not from Jenkins.

GLEESON CJ:   Mr Tehan, Mr Lincoln was confronted with a very obvious and, I should have thought, quite difficult tactical problem when the Crown called Verebes.  What then was Mr Lincoln going to do with him?  Was he going to attack his evidence as unworthy of credit?  You have already mentioned that some of it was favourable to him.

MR TEHAN:   On count 2.

GLEESON CJ:   It is not easy to see in all this material you are taking us to anything like a red‑blooded attack on the credibility of Verebes by Mr Lincoln.  The way in which the witness was cross‑examined and the way in which the judge was invited, or not invited, to deal with his evidence when he summed up to the jury was closely related, was it not, and fairly easily understood?

MR TEHAN:   Your Honour, what we say to that is that the approach to Verebes was to lay him bare.  That included getting from him such matters as one could which were favourable, and they related principally to count 2, but it also meant attacking his reputation as a valuer; it also meant attacking his honesty, his reputation as a dishonest man; it meant attacking ‑ ‑ ‑

HAYNE J:   All of which he went along with, did he not?  He did not try to defend his valuations, did he?

MR TEHAN:   He said that they were not for mortgage finance purposes.

HEYDON J:   They were sloppy and all the rest of it.

MR TEHAN:   Yes, he was unreliable.  The warning does not arise solely on the basis of credit being an issue.  The warning can equally arise where there is an issue as to reliability and where there are real issues as to he having a motive to inflate the valuations, where he lies about his relationship between Jenkins, the truth being, so it was put through cross‑examination, that the true relationship was between him and Bulfin, and where he has an interest in giving evidence against a man such as Jenkins, the interest being, of course, to protect his friend Bulfin.

GLEESON CJ:   But what is going on here is that at trial Mr Verebes is cross‑examined as though he is carrying a sign saying “Handle with care” and then in the Court of Appeal counsel says you should have warned the jury about this man’s complicity but, of course, you should not have told them that he had actually pleaded guilty to these offences and been convicted of them.

MR TEHAN:   There is nothing wrong with that, your Honour.  With respect, most accomplices wear a sign “Handle with care”.

GLEESON CJ:   Nobody is suggesting, are they, that the judge should have informed the jury of the full extent of Verebes’ actual complicity?

MR TEHAN:   We do not suggest that the judge should have told the jury that Verebes pleaded guilty to these properties, no, we do not suggest that.  There is an explanation for that which we have given in our reply.  The first issue in the case was, are the valuations false; second issue, did he know they were false.  But the second issue was the most important issue and an important part, for the Crown, of establishing knowledge was to establish a close relationship between Jenkins, Bulfin and Verebes, whereas the defence case was, when Verebes comes here and says, “These instructions came from Jenkins”, he is wrong; they came from Bulfin.  When he comes here and says, “I was in awe of Jenkins”, he is wrong.  That is just wrong.  They did not have anything but a passing relationship.  The true relationship was between Verebes, Bulfin and the two witnesses that you have not heard from.  They had a long‑standing relationship, Bulfin and Verebes, and you have not heard from these other two fellows who, no doubt, got significant amounts by virtue of these inflated valuations.

GLEESON CJ:   If counsel had wanted to attack the credit of Verebes in cross‑examination on the ground of his temptation to falsify evidence because of his own complicity, would the rule in Browne v Dunn have required counsel to put to him that he had been convicted?

MR TEHAN:   No, your Honour.

GLEESON CJ:   Could counsel have made an attack on Verebes’ credit in cross‑examination on that basis, without at least running a high risk that the fact of the conviction would emerge?

MR TEHAN:   Well, I suppose it could emerge, yes.

HEYDON J:   Is it not common in criminal trials for the Crown to prove the conviction in-chief?

MR TEHAN:   Well, Gallagher’s Case, at least, in Victoria stands for the proposition that it should not be led.

HEYDON J:   In the big drug cases where everything turns on one person who has been heavily sentenced, is it not common for the Crown to present that person as he is?

MR TEHAN:   Yes, that is true, your Honour.

HEYDON J:   Your client had no criminal record.

MR TEHAN:   No.

HAYNE J:   And positively ran a character case, did he not?

MR TEHAN:   No, it was not a ‑ ‑ ‑

HAYNE J:   He ran a case of good character.

MR TEHAN:   Yes – sorry, your Honour, yes.  Yes, there was a good character direction given.

GLEESON CJ:   So he did not have anything to fear from putting character in issue in his cross‑examination of Verebes.  What he had to fear was that the fact of the conviction could have a frightfully damaging effect.

MR TEHAN:   And the reason for that is because there was an issue as to whether the valuations were, in fact, false.  That was the reason.  That can be the only reason that we can see.  But the really important issue was did Jenkins know that the valuations were false, not were they false.  I mean, that was in issue, but the real issue was did he know.  The answer to that question, so far as the Crown was concerned, rested very largely upon the relationship between Jenkins and Verebes being a close one, whereas the defence, as we have sought to demonstrate, were putting it that the real relationship was between Jenkins and Bulfin, and that Verebes was under the influence of Bulfin, not Jenkins.  That again is put at 732, line 18 in counsel’s address:

Bulfin wasn’t going to entrust anything else to anybody else other than Verebes.  He was going to make sure when Verebes went out there he got the best possible value and that’s exactly what Archer is saying and it’s exactly what you would expect.  “They contacted the valuer and instructed him to prepare the appropriate valuation reports”.  Hoo, hoo, I bet you they did.

That is the relationship between Verebes and McKinley Wilson, the arm of Bulfin.  At 737, line 1, in his address in dealing with the Dreamworld matter, the last count:

So he didn’t get any instructions out of my client.  Then he goes off to who – Bulfin.  What does Bulfin say?  Oh, look, what we will do – remember I said to you, we will vary the goodwill.  So he went to Bulfin, and I would have thought like night follows day, in this case one thing you can be sure of, Mr Verebes worked with Mr Bulfin.  He wasn’t going to get any instructions from Jenkins, because Jenkins wasn’t supplying the money.

An attack was made at 739, line 2 on Verebes’ lack of care for the valuations, his only care being to make money for himself and Bulfin and he knew that OST would not check:

MR TEHAN:   Yes.

HAYNE J:   Paragraph 2, Moresro is controlled by Jenkins.  Paragraph 5, March 1988, Moresro is in arrears on a loan.  Paragraph 7, March 1988, the lender is getting a bit agitated because of failure to meet interest payments.  March 1988 notices are issued.  April 1988, next month, Jenkins, on behalf of Toptown – paragraph 4 – buys Glen Crag for 2.4 million.  On 22 April contract signed.  29 April valuation given, valuation given by Verebes.  Paragraph 9, 4.1.  The money is paid.  Paragraphs 12 and  13, notably 13,

money disbursed, amongst other purposes, in satisfaction of the pressing debts of Moresro. 

It is an unfortunate set of circumstances for Mr Jenkins to have to confront.  Now in those circumstances, what is the answer that you make to Mr McArdle’s proposition that the defence had, given the circumstances of the case, really not much choice except to paint Verebes as a fool, but not an accomplice of Jenkins out there attempting to swindle OST?

MR TEHAN:   Three matters, your Honour.  First of all, we would submit that Mr Lincoln did not go to the jury solely on the basis that Verebes was a fool.  He went on the basis that he was a dishonest man, a man not to be trusted, a person who was in cahoots with Bulfin.  Secondly, as we conceded this morning, in relation to the Glen Crag matter, there was some evidence given by Verebes which was favourable to the appellant.  We conceded that.  The third point is this, OST knew that these moneys were being used by Jenkins for other purposes, paying off interest.  There was a very live issue – I said earlier this morning that there were three issues in this trial:  firstly, were the valuations false and misleading; secondly, did Jenkins know the valuations were false and misleading; and, thirdly, the causation issue.  Could they show that the moneys would not otherwise have been obtained?  They knew, Robinson knew what was happening, and he was not called.  Evidence was given by Archer and other witnesses.  Robinson knew what was happening and he was not called. 

What is important to this matter and what we emphasise, and I do not want to keep repeating myself, is the relationship of the parties and in particular Jenkins to Verebes, and the issue of instructions were absolutely vital.  There can be no doubt that the jury, through the addresses and the way the judge charged the jury, were told those matters.  Now, resolution of what side you are on, the Crown or the defence, in relation to those issues, was absolutely pivotal.  On the counts in respect of which the appellant has been convicted, a warning, some warning, could have swung the jury towards verdicts of not guilty, and that is why we say there has been a miscarriage of justice.  May it please the Court.

GLEESON CJ:   Thank you, Mr Tehan.  We will reserve our decision in this matter, and we will adjourn until 9.30 tomorrow morning in Melbourne and 9.30 tomorrow morning in Sydney.

AT 3.37 PM THE MATTER WAS ADJOURNED