Jenkins v The Queen

[2003] HCATrans 526

[2003] HCATrans 526

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M16 of 2003

B e t w e e n -

BRUCE DAVID JENKINS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2003, AT 11.55 AM

Copyright in the High Court of Australia

MR P.G. PRIEST, QC:   If the Court pleases, I appear with my learned friend, MS M.T.C. HODGSON, for the applicant.  (instructed by C.D. Traill)

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:   Mr Priest, it seems to be common ground that there was an error of fact in the reasoning of the Court of Appeal, but the question is the materiality of that error.

MR PRIEST:   Yes.

GLEESON CJ:   Now, one thing I am not clear about is what aspects of the evidence of the witness in respect of whom the warning you say should have been given was in controversy at the trial.

MR PRIEST:   There are a number of things about it, your Honour.  The first this is this.  Verebes’ evidence was central to the Crown case and the evidence which tied Mr Jenkins to what was said to be the deception in each case was indeed Verebes’ evidence.

GLEESON CJ:   But what was it about his evidence that was challenged by the defence?

MR PRIEST:   There are a number of aspects, your Honour, and perhaps I can do it by looking at one count in particular to try and demonstrate the way in which it was approached.  If I can take your Honours to our summary of argument in the second volume of the application book at page 439.  At paragraph 3.7 we set out what we say was the sting in Verebes’ evidence.  By way of example, so far as count 2 is concerned, it was said by Verebes that the applicant had asked him, Verebes:

to value the building as if it had been refurbished.

Over and above that, it was said that:

the applicant provided a schedule of tenancies which showed an inflated rental income.

Those things were challenged, in particular whether or not the schedule of tenancies was for projected future income or whether it was for income from tenancies that were then current.  So that was central.  If the jury came to the view that Verebes had been provided with a false tenancy schedule showing inflated income, then that was very powerful evidence which the Crown could use in order to show that Mr Jenkins was party to a dishonest scheme.

GLEESON CJ:   So it was put to Verebes in cross‑examination that he was lying about that.

MR PRIEST:   That he was mistaken.  I do not know that it was specifically put that he was lying about it, but that he was mistaken.  Your Honour, the point has been made by the respondent that Mr Verebes was a compliant witness.  It is very difficult I suppose for this Court to draw a conclusion about that without reading all of Verebes’ evidence.  The fact of the matter was on things like this, upon which he was challenged, he did not accept what was being put to him by counsel for Mr Jenkins.

HAYNE J:   What was the thrust of the case put by Jenkins about Verebes’ role?

MR PRIEST:   In essence, that Mr Jenkins was simply a fool and that the real villains in this case were Bulfin, Robinson and Verebes.

HAYNE J:   Verebes was the tool of Bulfin.

MR PRIEST:   And of Robinson.

HAYNE J:   And Robinson.

MR PRIEST:   He was the puppet and they were pulling the strings and that the false valuations which founded each count were prepared really at the behest of Mr Bulfin.

HAYNE J:   So what is the warning that you say – what is the essence of what the jury should have been told ‑ ‑ ‑

MR PRIEST:   The jury should have been told that it was dangerous to convict Mr Jenkins on the evidence ‑ ‑ ‑

HAYNE J:   I know the formula, but what is the thrust of the warning that you want them to have?

MR PRIEST:   Just that, your Honour, that it would be dangerous to convict on the evidence of Verebes.  Again, the point is made against us that here there was substantial corroboration.  Even if one accepts that that is so, the fact that there is corroboration does not mean and does not absolve a judge from giving the warning if it is called for.  Over and above that, a jury must be told, in our submission, that even if they find that there is corroboration they should still scrutinise the evidence of the accomplice very carefully, heed the warning that has been given about it and the reasons for the warning.

Now, Verebes’ evidence on an aspect such as that the tenancy schedule may have been the thing that tipped the jury to the prosecution’s view of life.  It is impossible to say.

HAYNE J:   I understand that, but it is said in the Court of Appeal, is it not, that counsel (a) did not ask and (b) had a very sound forensic reason for not wanting such a warning to be given?

MR PRIEST:   Certainly that was put by Mr Justice O’Bryan in the judgment.  It was put to me in argument.  With respect, I gave him the same answer that I am going to give the Court.  How could it have been to Mr Jenkins’ forensic disadvantage to have a warning that when they look at the evidence of Verebes they must scrutinise it very carefully and regard it as being dangerous to convict on his evidence unless they find corroboration?  It would have been very much to his forensic advantage, not to his disadvantage. 

Your Honours, it seems, with respect, that the Crown knowing that he was an accomplice did not ask for the warning to be given, well knowing, one would expect, their obligations.  The trial judge did not seem to turn his mind to it and of course we know that defence counsel made no mention of it either.  But it could not have been to Mr Jenkins’ forensic disadvantage; it would have been to his considerable advantage to have had the warning, in our submission.

With respect, there are only two ways, we would submit, in which this point can be defeated.  The first is to show that there is no substantial miscarriage of justice, that is, that the proviso is applicable.  Secondly, for it to be said that the mandatory rules, what we submit are mandatory rules, laid down in Davies’ Case have no application.  As to the first, it is plain that Mr Justice O’Bryan was of the view that the proviso could not be applied.  Your Honours, at application book volume 2, page 413 in his judgment at paragraph 176 his Honour says:

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.

With respect, although we do not endorse much of what Mr Justice O’Bryan said, we endorse what he says in that paragraph.  Plainly ‑ ‑ ‑

HAYNE J:   Further down 414, 178, line 17 and following:

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.

Is that right?

MR PRIEST:   Yes, your Honour.  It does not matter, with respect, whether he was characterised as participes criminis or not.  If there was material upon which the conclusion could properly be formed that he was an accomplice, a warning needed to be given as a matter of law, no matter what stance was taken by counsel in the court below.  Your Honours, so much flows, we would submit, from two cases.  First of all, Davies’ Case itself, and I wonder if I might just take the Court very briefly to the well‑known propositions set out in the opinion of Lord Simonds at page 399 of the appeal case.  Lord Simonds said:

The true rule has been, in my view, accurately formulated by the appellant’s counsel in his first three propositions, more particularly in the third.  These propositions as amended read as follows:–

First proposition:

In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated.

Second proposition:

This rule, although a rule of practice, now has the force of a rule of law.

Third proposition:

Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if in fact there be ample corroboration of the evidence of the accomplice, unless the appellant court can apply the proviso –

Now, your Honours, an application of those propositions is to be found in a decision of the Court of Appeal of this State in Pen He v Sambo Bun, which is the second case in the bundle that has been provided to the Court.  It was a decision of the Court of Appeal constituted by the then Chief Justice, Justices Batt and Buchanan.  In the joint judgment of the Chief Justice and Mr Justice Batt, with whom Justice Buchanan agreed – this is to be found at paragraph 27.  Just to give your Honours some very brief background about this, there was a witness Thath Pech who was called by the Crown to give evidence in circumstances where it was plain that she may well have had knowledge of and a part in the dealings with a package of drugs which arrived in this country.  At paragraph 27 in the joint judgment their Honours said:

If Thath Pech was an accomplice, his Honour was required, as a matter of law, to give the jury an accomplice warning.  That was so even though such a warning had not been sought and indeed had been disavowed for Bun at least.

What had happened in that case at trial is that counsel for Pen He had not asked for an accomplice direction and counsel for Bun had expressly disclaimed reliance on such an accomplice direction and asked his Honour in that case not to give an accomplice direction.  So we say the only two bases upon which this point can be defeated is, one, if the proviso can be applied – and we say, with respect, it cannot be for the reasons identified by Mr Justice O’Bryan – or, secondly, if it can be said the mandatory rules set out in Davies’ Case are themselves not to be followed in this country. 

Now, Davies has been followed in a legion number of cases since it was decided.  As far as we can tell, your Honours, no doubt has ever been cast upon these propositions.  Now, if Davies is wrong and it is not to be followed in this country, with respect, it is only this Court that can say so.  That of itself would attract a grant of special leave.  On the other hand, if we are right in our primary contention, then there has been a clear miscarriage of justice, and that of itself too would attract a grant of special leave.

Now, your Honours, as to the second ground, dealing with the question of deception, there are a number of very simple, straightforward propositions that we say, despite their simplicity, are absolutely compelling and should lead to the view that the decision of the Court of Appeal is attended with error. The starting point, your Honours, is section 82 of the Crimes Act 1958, which is set out in the application book in the addendum to the judgment of Mr Justice O’Bryan at page 423:

(1)  A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable offence –

Section 82(2) then picks up the definition of “deception” in 81(4), which is “deception”:

(a)  means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person;

Now, we would say it is plain beyond argument, from the words of the section itself and from the cases that have been decided on the interpretation of that section, that there has to be a causal link between the obtaining of the financial advantage and the deception.  So that is the first proposition.  The financial advantage must be obtained by the deception.

The second proposition is this, that to deceive somebody is to induce them to believe something is true when it is indeed false and the person practising the deceit knows it to be false.  The third proposition is this, that a corporation of course has no mind of its own.  It cannot be deceived.  Only an officer of the corporation can be deceived.  The company itself, we would submit, because it has no corporate mind, as it were, cannot be deceived.  Only a human being can be deceived.  So it must be some officer of the company which fixes the knowledge of the corporation or the company.

The fourth proposition is this – and there seems to be no argument that this proposition is wrong – in this case the relevant person of OST, the corporation to be deceived, is the person providing the loan or the credit facility.  The only person, on the evidence, who had power to do that was Robinson.  Robinson was not called.  Robinson, your Honours, had previously been prosecuted and acquitted by a jury.  He had later pleaded guilty to a number of other offences, not directly related to those involving Mr Jenkins, but certainly he was not called to give evidence.  So that leads us to the fifth proposition which is that there was no evidence at all that Robinson was deceived and there was no evidence from which that fact could be inferred.  In fact, the thrust of the case was that Robinson was indeed one of the villains.

We would submit that if each of those propositions are right, then this ground should have succeeded in the court below.  Because it did not, there has been a miscarriage of justice.  There is a matter of public importance, we would submit, which attracts the grant of special leave in that the circumstances in which the knowledge of an officer of a company fixes that of the corporation is one of great importance.  If your Honours please.

GLEESON CJ:   Thank you.  Mr McArdle, the only matter we want to hear you on is the proposed ground 2.1 in the draft notice of appeal.

MR McARDLE:   That, your Honours, relates I think to the question of ‑ ‑ ‑

GLEESON CJ:   The accomplice warning.

MR McARDLE:   ‑ ‑ ‑ the accomplice warning.  Your Honours, the position is this obviously.  At trial no warning was sought.  This man was tried before a very experienced judge in this jurisdiction.  He was represented by very experienced counsel.  No attack as to the honesty of Verebes was made, to our recollection, in the course of his cross‑examination.  He was put as being inexperienced and that the real villains in the case were Robinson, who was a senior officer with OST, which was a Friendly Society, and a man called Bulfin, who was Melbourne based, and he was a finance broker of sorts.  Their interest in it was fees or other emoluments arising from transactions.

Now, the question of whether or not an accomplice warning should have been administered did not arise until probably about 11 months or thereabouts after the trial when some fresh grounds of appeal were put in.  We submit that it was a tactical decision ‑ ‑ ‑

HAYNE J:   What disadvantage would have been suffered by getting an accomplice warning?

MR McARDLE:   It would, I suppose – of course I was not there and one can speculate; we have not heard from counsel who was in the case – that it would be that you would be immersed in an illegality in which it would be said that Verebes was part of.  Now, for example, we have noted in our outline that at least two things occurred outside Verebes’ evidence which, we say, are of significance, the first thing being that prior convictions of other characters in the case were led before the jury; his were not.  Secondly, an objection was taken to some evidence that was being led on the basis that it would have been seen as being an attack upon Verebes’ credit.  So we say that his credit, such as it was, was being protected as part of the defence case.  That being the situation, clearly a decision was made, if you like, not to have an accomplice warning directed towards him. 

Now, that was the view of his Honour Mr Justice O’Bryan who wrote the judgment which is leading in this respect, that it contained a close analysis of the facts of the case.  The other judgments were directed mainly to other issues.

Now, I suppose to direct myself to your Honour’s question, we would say that really it would suggest that he, Verebes, had been criminal and that this man was enmeshed or at risk of being enmeshed in Verebes’ criminality.  Now, these are matters about which of course there might be different views.  The judgments are taken at trial and we say that the observations of your Honours in separate judgments, in Crampton’s Case, are highly pertinent to the consideration of this application here.  This is a case that has really been remade in the appellate courts.  The people who were said to be the villains, if you like, were Bulfin and Robinson; the absent friends, if you like, from the case.  The Crown was not disposed to call either of those.  That is a judgment of course that has not been called in issue in these proceedings as well.

Now, so far as the consequences of this is concerned, it is asserted by our learned friends that the absence of an accomplice warning is fatal to the case, and that the authorities say that.  In fact, there are one or two authorities in Victoria that would suggest that it is not entirely fatal.  It might be said that there is a conflict between He’s Case, the case that our learned friend took you to, and those authorities.  But this case, it is submitted, is not a satisfactory vehicle for a resolution of that.  At the very least, it is submitted, one would look to the Court of Appeal to consider whether there is a conflict between those authorities.  So far as I can gather that in He’s Case the other authorities were not drawn to the attention of the court.

HAYNE J:   What are we to do about the fact that the Court of Appeal determined this question on a false basis of fact?

MR McARDLE:   It was not entirely determined, it is submitted.  That was one consideration.  The other considerations of course were, if you like, it was judged to be a tactical decision…..and that part of the judgment of his Honour Justice O’Bryan, to which I think your Honour drew our learned friend’s attention, makes reference really to the nature of Verebes’ evidence.  He was, we submit, a compliant witness.

HAYNE J:   So far as I could tell, reading the charge, the most that was put against Verebes appeared to be that Verebes was given instructions that were evidently different from the proof.

MR McARDLE:   Yes.

HAYNE J:   That he then produced a valuation consistent with the instructions and inconsistent with the facts as then known.

MR McARDLE:   Inconsistent with his professional obligations, it might be said.

HAYNE J:   But inconsistent with what he knew to be the fact about the property.

MR McARDLE:   Yes.

HAYNE J:   Do I capture the way in which the case proceeds?

MR McARDLE:   Yes, I think, with respect, your Honour, it would be broadly the situation.

HAYNE J:   Would that ordinarily call for an accomplice warning?  The valuer is asked to do it on one basis, which he, the valuer, knows is not right, and yet he does it.

MR McARDLE:   Yes.

HAYNE J:   And the valuation is an important element in getting the money to ‑ ‑ ‑

MR McARDLE:   Yes.  It seems to be argued that in fact he gets it wrong; that he is inexperienced, he is silly, whatever.

HAYNE J:   It seems to me that makes him an accomplice and to say that he is a dupe of Bulfin or the conscious tool of Bulfin may be further fact.

MR McARDLE:   Yes.

HAYNE J:   But does it deny that he is an accomplice of Jenkins?

MR McARDLE:   Your Honours, it may be arguable that he was, if I could put it that way, but that was really not the way this case went.  That, we say, is really the critical thing as far as this application is concerned.  People should be allowed to run trials the way they want to.  There is no issue as to ‑ ‑ ‑

GLEESON CJ:   Well, that is a fairly broad proposition.

MR McARDLE:   It probably is.

HAYNE J:   I think that ceased about 100 years ago.

MR McARDLE:   Within the framework of the law, your Honour.  I would not want it to be taken as…..other than that.  But people make judgments in cases.  Your Honours, I will not take you to Crampton, but of course those matters would be fresh in your mind, in which the primacy of the trial process is emphasised and that in fact the appellate courts are not to be used as a means by which the matters are to be re‑litigated on different issues.  We just simply say that this judgment was made at trial.  It cannot be said it

was an unsound judgment.  It was a judgment that was made and this is not an occasion to have that re‑litigated in different circumstances.

The only other thing that I desire to mention to the Court is simply this.  So far as it being a matter of general importance is concerned, this issue would not have arisen under the New South Wales legislation or the Commonwealth legislation.  There is a general provision there about warnings of course, which would include those who are probably now seen to be – or, worse, would have been seen as accomplices and a variety of other witnesses who might be troublesome.  Concerning those though, the critical thing it is submitted – and I do not think I have it at my hand here – is that that warning is administered upon the request of one or another of the parties.  Here you might think it quite striking that his Honour, a person of vast criminal experience, or anyone else apparently in the case – if it was an error, if it was – did not see this as an occasion in which a warning should be administered.  Your Honours, I think that that concludes our submissions in relation to the matter.

GLEESON CJ:   Thank you.  Yes, Mr Priest.

MR PRIEST:   Your Honours, the Crown knew that he was an accomplice.  They had charged him with a rolled up count of furnishing false information, which related to the very properties which are the subject of the counts found in the convictions in this case.  It should have been as plain as a pikestaff to his Honour that he was an accomplice ‑ ‑ ‑

GLEESON CJ:   Yes, thank you, Mr Priest.  In this matter there will be a grant of special leave limited to ground 2.1 in the draft notice of appeal in the application book.

AT 12.26 PM THE MATTER WAS CONCLUDED