Martorano v The King

[2025] NSWCCA 152

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Martorano v R [2025] NSWCCA 152

Hearing dates:

15 September 2025

Date of orders:

29 September 2025

Decision date:

29 September 2025

Before:

Bell CJ at [1];
Free JA at [78];
McGuire J at [79].

Decision:

Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against conviction – irregularity in criminal trial – materiality – miscarriage of justice – where criminal record of appellant’s accountant was sought to be tendered but not admitted – no irregularity disclosed – any irregularity was not material – no miscarriage of justice

CRIME – appeals – appeal against conviction – materiality – where trial judge upheld an objection to questioning of a Federal Agent which called for speculation – no error disclosed

Legislation Cited:

Crimes Act 1914 (Cth) ss 20(1)(b)

Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 6(1)

Criminal Code Act 1995 (Cth) ss 135.1(5), 11.2A(1)

Evidence Act 1995 (NSW) s 191

Cases Cited:

Astill v R [2024] NSWCCA 118

Baini v R (2012) 246 CLR 469; [2012] HCA 59

Brawn v R (2025) 99 ALJR 872; [2025] HCA 20

Dragojlovic v R (2013) 40 VR 71; [2013] VSCA 151

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Hamide v R [2019] NSWCCA 219

Hamilton (a pseudonym) v R (2021) 274 CLR 531; [2021] HCA 33

Hofer v R (2021) 274 CLR 351; [2021] HCA 36

Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1

MDP v R (2025) 99 ALJR 969; [2025] HCA 24

Nudd v R (2006) 80 ALJR 614; [2006] HCA 9

R v Strawhorn (2008) 19 VR 101; [2008] VSCA 101

Regina v Yeo [2005] NSWCCA 49

Weiss v R (2005) 224 CLR 300; [2005] HCA 81

Wilde v R (1988) 164 CLR 365; [1988] HCA 6

Zhou v R [2021] NSWCCA 278

Texts Cited:

Judicial Commission of New South Wales, Criminal Trial Courts Bench Book

Category:

Principal judgment

Parties:

Robert Frank Martorano (Appellant)
Crown (Respondent)

Representation:

Counsel:
J Stratton SC with M Coroneos (Appellant)
P McDonald SC with D Bhutani (Respondent)

Solicitors:
Justinian Legal (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2021/00307560

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 March 2024

Before:

Girdham SC DCJ

File Number(s):

2021/307560

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 March 2024, Mr Robert Frank Martorano (the Appellant) was convicted by a jury of the offence of dishonestly causing a loss to the Commonwealth, knowing or believing that the loss would occur, contrary to s 135.1(5) of the Criminal Code Act 1995 (Cth) (the Criminal Code). His co-accused, Mr Steven Davies, was found not guilty of the same offence. The Appellant was sentenced to two years and six months’ imprisonment, but is due for release on recognizance after 15 months, on 22 November 2025.

The Appellant’s acts contrary to s 135.1(5) of the Criminal Code commenced from 15 January 2013 and comprised the transfer of assets including cash, contracts, and staff from Premier Protection Agency Pty Ltd (Old Premier), to a newly incorporated company, Premier Protection Agency (Aust) (New Premier), notwithstanding that Old Premier owed debts to creditors, including considerable tax obligations to the ATO. Old Premier was placed into liquidation on 7 February 2014, deregistered in 2019, and the total loss to the Commonwealth caused by Old Premier’s unpaid tax liabilities was $1,351,338.77.

The Appellant had sold his shares in Old Premier to Mr Davies two days after the incorporation of New Premier.

The Appellant appealed from his conviction alleging two irregularities had occurred during the trial which had caused a miscarriage of justice. The first was the Crown’s attempt to tender the criminal record of the Appellant’s accountant, Mr La Rocca. The second was the trial judge’s upholding of an objection to the questioning of a Federal Agent regarding an article referred to in a telephone call on 1 June 2017 between Mr Davies and the Appellant, as well as her Honour’s refusal to admit the article itself.

The Court (Bell CJ, Free JA and McGuire J agreeing) held, dismissing the appeal:

1. The attempt to tender Mr La Rocca’s criminal record was not a material irregularity in light of the following: the criminal record was never admitted; the attempted tender did not directly identify whose criminal record it was; the trial judge issued directions to the jury to ignore the attempted tender and only to consider the evidence before it; the Appellant’s counsel made a rational forensic decision not to seek a discharge of the jury; and the connection between Mr La Rocca and the Crown case was not material: [50]-[64] (Bell CJ); [78] (Free JA); [79] (McGuire J).

Brawn v R (2025) 99 ALJR 872; [2025] HCA 20; Zhou v R [2021] NSWCCA 278; Hamide v R [2019] NSWCCA 219; Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15; Hamilton (a pseudonym) v R (2021) 274 CLR 531; [2021] HCA 33; Nudd v R (2006) 80 ALJR 614; [2006] HCA 9; Astill v R [2024] NSWCCA 118; Dragojlovic v R (2013) 40 VR 71; [2013] VSCA 151; Regina v Yeo [2005] NSWCCA 49; R v Strawhorn (2008) 19 VR 101; [2008] VSCA 101, cited.

MDP v R (2025) 99 ALJR 969; [2025] HCA 24; Wilde v R (1988) 164 CLR 365; [1988] HCA 6; Weiss v R (2005) 224 CLR 300; [2005] HCA 81; Baini v R (2012) 246 CLR 469; [2012] HCA 59; Hofer v R (2021) 274 CLR 351; [2021] HCA 36, referred to.

2. The upholding of the objection to the questioning of the Federal Agent was proper given any answer would necessarily have been speculative. In any event, the 1 June 2017 phone call postdated the conduct of the parties that formed the basis of the offences, and its relevance, if any, went to the “honest belief” of Mr Davies, not the Appellant: [72]-[76] (Bell CJ); [78] (Free JA); [79] (McGuire J).

JUDGMENT

Introduction

1. BELL CJ: This is a conviction appeal brought by Mr Robert Frank Martorano (the Appellant) who, between 9 February and 27 March 2024, stood trial by jury alongside his co-accused, Mr Steven Davies (Mr Davies), in respect of two offences to which they each pleaded not guilty (together, the co-accused).

2. The Appellant was found guilty on Count 1:

“Count 1. Between about 15 January 2013 and 5 May 2017, at Moorebank in the State of New South Wales and elsewhere, did dishonestly cause a loss to another person, namely the Commonwealth, knowing or believing that the loss would occur.”

Contrary to section 135.1(5) of the Criminal Code Act1995(Cth).”

Mr Davies was found not guilty of the same offence, which was Count 2.

3. The co-accused were found not guilty on Count 3:

“Count 3. Between about 22 November 2016 and 23 November 2016, at Moorebank in the State of New South Wales and elsewhere, did jointly commit an offence, namely, they did attempt to pervert the course of justice in relation to a judicial power, being a judicial power of the Commonwealth.”

Contrary to section 43(1) of the Crimes Act 1914 (Cth) with section 11.2A(1) of the Criminal CodeAct (Cth).”

4. The maximum sentence for a breach of s 135.1(5) of the Criminal Code Act 1995 (Cth) (Criminal Code) is 5 years’ imprisonment.

5. The sentencing hearing was held on 23 August 2024 in the District Court before Girdham SC DCJ (the trial judge). The Appellant was sentenced to a term of two years and six months’ imprisonment, commencing on the day of sentence. An order was made for the Appellant’s release pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) after serving a term of imprisonment of 15 months, on the condition that he enter a recognizance of $2000, that he be of good behaviour for two years following his release, and that he appear before the Court when asked to do so. The Appellant is due for release on 22 November 2025, and his sentence expires on 22 February 2027.

6. On 22 May 2025, the Appellant filed a notice of appeal against both his conviction and sentence. The appeal from sentence was subsequently withdrawn.

Background

7. The following summary is adapted from the trial judge’s “Statement of Facts After Trial” (SOFAT).

8. The Appellant’s impugned acts contrary to s 135.1(5) of the Criminal Code concerned his dealings with two entities: Premier Protection Agency Pty Ltd (Old Premier) and Premier Protection Agency (Aust) Pty Ltd (New Premier).

9. Old Premier was incorporated on 9 May 1997, placed in liquidation on 7 February 2014, and deregistered in 2019: SOFAT [4] (see [20] below). The company was originally incorporated under the name “Magtek Security and Investigations Pty Ltd” but changed its name to “Premier Protection Agency Pty Ltd” on 30 April 1998: SOFAT [3]. Old Premier conducted a business of “providing security, investigative, and vetting services” and had clients from both the private and public sectors: SOFAT [3]. Those clients included ASIC, CrimTrac, and the Department of Defence.

10. Until 17 January 2013, the Appellant was the director, secretary, and sole shareholder of Old Premier.

11. There was no dispute that between tax years 2003/4 and 2012/3, Old Premier failed to lodge numerous income tax returns (ITRs) and Business Activity Statements (BAS). It was the Appellant’s case at trial that his accountant, Ms White, was responsible for failing to prepare and lodge his tax returns. A Statement of Agreed Facts under s 191 of the Evidence Act 1995 (NSW) was signed by the parties before the trial on 11 December 2023, and recorded as follows:

“1. Premier Protection Agency Pty Ltd (PPA) was prosecuted by the Australian Taxation Office (ATO) and, on 21 March 2011, a plea of guilty was entered on behalf of PPA for failing to lodge Income Tax Returns (ITR) for the financial years between 2005/2006 and 2008/2009, and quarterly Business Activity Statements (BAS) for 1 July 2009 to 30 September 2010. On 23 March 2011, PPA was convicted and fined a total of $1,800 and ordered to lodge the outstanding ITRs and BAS by 4 May 2011.

2. PPA did not lodge the outstanding ITRs and BAS by 4 May 2011. On 14 September 2011, PPA was convicted in its absence and fined a total of $30,000 for failing to comply with the order of the Court to lodge each of these returns, which all remained outstanding.

3. On 18 September 2012, the ATO sent letters to PPA advising that PPA's ITRs for the financial years between 2003/2004 and 2010/2011 and BASs for 1 October 2010 to 31 July 2012 were still outstanding, and included a possible prosecution warning.

4. As these remained outstanding a prosecution was commenced against MARTORANO as a person concerned in the management of PPA and, on 12 February 2014, MARTORANO was convicted for failing to lodge PPA's BASs for 1 October 2010 to 31 December 2010 and 1 February 2011 to 31 August 2012, and was fined $12,000.”

12. On 17 January 2013, the Appellant resigned as director and secretary of Old Premier, and sold his shares to Mr Davies, who became secretary, director and sole shareholder. Two days earlier, on 15 January 2013, New Premier was incorporated: SOFAT [2].

13. 15 January 2013 was also the date from which the jury found the Appellant committed a series of illegal acts contrary to s 135.1(5) of the Criminal Code. Those acts comprised the transfer of assets including cash, contracts and staff from Old Premier to New Premier, notwithstanding that Old Premier owed debts to creditors, including considerable tax obligations to the ATO.

14. The Appellant was New Premier’s sole director, secretary, and shareholder at all times: SOFAT [5]. As with Old Premier, New Premier conducted a business of providing security, investigative and vetting services, and had both public and private sector clients.

15. Notwithstanding having purportedly ceased his directorship of Old Premier shortly after the incorporation of New Premier, the Appellant remained the sole signatory to Old Premier’s bank account, a Westpac Bank Account with account number 032 206,142 086 (over which Mr Davies at no point obtained any control) (Old Premier’s Bank Account): SOFAT [11].

16. The Schedule of Deposits of both Old Premier’s Bank Account and New Premier’s Bank Account between January 2013 and February 2014 indicated that money was transferred to and from the companies’ accounts, ultimately resulting in Old Premier being in a net negative position of $119,696.00: SOFAT [14].

17. In the same period, the Appellant also debited Old Premier’s Bank Account by way of the following transactions: SOFAT [15]

“a. Drawings of $157,833.84 which included payments to Martorano’s credit cards, at least some of which was for his benefit.

b.  Withdrawals of $353,945.00 by cheque made out to cash, which were cashed in by Martorano.”

18. The Crown’s case was that the Appellant had also attempted to novate Old Premier’s business to New Premier, including by transferring an ASIC contract from Old Premier to New Premier, and attempting (unsuccessfully) to do the same with a contract with CrimTrac, a former Australian Government agency in the Attorney General’s Department which has since been merged with the Australian Crime Commission.

19. Ralph Lee La Rocca was Old Premier’s accountant as of about December 2012: SOFAT [23]. Adam Shepard was a liquidator who at that time was working for Farnsworth Shepard. On 24 April 2013, the Appellant, Mr La Rocca, and Mr Shepard met to discuss, according to the evidence of Mr Shepard, the insolvency of Old Premier and “the likely appointment of a liquidator”.

20. Mr Shepard was subsequently contacted by Mr La Rocca in early 2014 asking for documentation to appoint a liquidator to Old Premier. Mr Shepard was appointed liquidator on 7 February 2014, and the company was subsequently wound up.

21. The loss to the Commonwealth caused by Old Premier’s unpaid tax liabilities was calculated as totalling $1,351,338.77, comprising the amount of unpaid GST and income tax, and unremitted PAYG liabilities for financial years 2003/4 to 2012/13: SOFAT [25]. That figure was contested at trial. In sentencing the Appellant, the trial judge proceeded on the basis that there was substantial loss to the Commonwealth, in excess of $1 million.

Grounds of Appeal

22. The grounds of appeal were as follows:

“Ground One: The trial miscarried by reason of the Crown Prosecutor tendering, in the presence of the jury, the criminal record of Lee La Rocca, a person associated with the appellant; and

Ground Two: The learned trial judge erred in not permitting cross-examination of the witness Federal Agent Nagel as to his knowledge of an article being discussed by the appellant Martorano and the co-accused Davies and/or to reject the tender of the article which became MFI#34”

23. The Crown submitted that leave was required to bring the first ground of appeal, it being a “mixed question of law and fact” pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (the CAA). If leave was required, it is granted. It was common ground that leave was not required in relation to the second ground of appeal.

Applicable principles

24. Section 6(1) of the CAA enacts the “common form” criminal appeal provisions for appeals from a conviction on an indictment. It provides as follows:

“6 Determination of appeals in ordinary cases

(1)    The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

25. The three “limbs” in s 6(1) of the CAA are:

1. that [the verdict] is unreasonable, or cannot be supported having regard to the evidence;

2. that the judgment of the trial court should be set aside on the ground of the wrong decision of any question of law, and

3. that on any ground whatsoever there was a miscarriage of justice.

26. An appellate court must allow an appeal if one of three limbs in s 6(1) is established, subject to the proviso that the court may nevertheless “dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred” (the proviso). The “substantial miscarriage of justice” test in the proviso is distinct from the “miscarriage of justice” test in the third limb and the inquiry required by the latter does not collapse into that of the former: see Brawn v R (2025) 99 ALJR 872; [2025] HCA 20 at [11] (Brawn); MDP v R (2025) 99 ALJR 969; [2025] HCA 24 at [107] (MDP).

27. The Crown bears the onus to satisfy the proviso (Brawn at [16]) and did not raise it in relation to either ground of appeal in the present case.

28. The third limb of s 6(1) requires the Appellant to establish there was an error or irregularity which was either “fundamental”, or “material…in the sense that [it] could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred”: Brawn at [9]-[10]. As the High Court continued in Brawn at [10]:

“[10]    …In this context, “could” is to be understood as meaning “having the capacity to”, and “realistically” distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.”

29. In the language of Beech-Jones CJ at CL (as his Honour then was) in Zhou v R [2021] NSWCCA 278 at [22]:

“…To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that therewas a ‘real chance’ that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson JJ; at [118] per Gageler J) or ‘realistically [could] have affected the verdict of guilt’ (at [123] per Gageler J) or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial' (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ).”

30. In the present case, the Appellant did not contend that any of the asserted errors in ground 1 or 2 was fundamental (as to how that term is understood in this context, see Wilde v R (1988) 164 CLR 365 at 373; [1988] HCA 6; Weiss v R (2005) 224 CLR 300; [2005] HCA 81 at [46]; Baini v R (2012) 246 CLR 469; [2012] HCA 59 at [26]; Hofer v R (2021) 274 CLR 351; [2021] HCA 36 at [123], cited in MDP at [9]). The determination of the grounds of appeal ultimately depends on whether an irregularity occurred during the trial, and whether that irregularity was “material”.

Ground 1

31. It will be recalled that ground 1 of the appeal was that the trial miscarried by reason of the Crown Prosecutor attempting to tender, in the presence of the jury, the criminal record of Mr La Rocca (the criminal record). As noted above, Mr La Rocca became the accountant for the Appellant from about December 2012, and this was a fact before the jury.

32. Mr La Rocca was referred to in the Crown’s opening as follows:

“We've actually got to go back into the second period, about 24 April 2013. The accused Martorano, in company with a new accountant called Ralph Lee La Rocca, met with Adam Shepard - who, as I said, is liquidator - to discuss the possible liquidation or winding up of Old Premier. Liquidation can occur in a number of different circumstances, but what it ultimately means or leads to is, in a sense, the ending of a company…”

33. There was some dispute as to whether the subject of the first ground of appeal was the tender, or the attempt to tender, the criminal record. On the Appellant’s case, the criminal record was “[t]endered but not admitted into evidence”. That dispute was largely semantic. In short, as will be seen, the Crown sought, in the presence of the jury, to tender the criminal record (the Crown Prosecutor said “I tender …”). This course was the subject of objection by Mr Stratton SC and, after certain matters were clarified, the tender was withdrawn, and the criminal record was not admitted into evidence.

33. In order properly to consider this ground of appeal, it is necessary to set out the relevant background leading to the tender or attempted tender of the criminal record.

34. On 20 February 2024, Mr Stratton’s cross-examination of Mr Shepard included the following exchange in relation to the handwriting appearing on two documents, both of which purported to be signed by Mr Davies:

“Q. Do you know the accountant, Mr Lee La Rocca?

A.   I have met Lee La Rocca, yes.

Q.   Is he still living in New South Wales, do you know?

A.   I haven't seen him for five years. Eight years.

Q.   Do you know if he's still practicing?

A.   No idea.

Q.   Are you able to say if that's his handwriting, one way or another? I'm not putting that to you. I'm just asking.

A.   No, I'm not. I wouldn't know what his handwriting looks like.”

36. On 6 March 2024, the Crown called Federal Agent Nagel, a Sergeant in the Australian Federal Police and the officer in charge of “Operation Spearfelt”: the investigation into the co-accused. Federal Agent Nagel gave evidence over several days. The following exchange occurred between him and the Crown Prosecutor at the conclusion of his examination in chief:

“Q. Federal Agent Nagel, there's been evidence of an accountant known as Lee La Rocca.

A.   Yes.

Q.   Is he also known by another name?

A.   Yes, I also know him to be Ralph La Roca.

Q.   I'll show you this document. Is that a document that you obtained?

A.   Yes, it is.

Q.   Is it a criminal history of Ralph La Rocca, also known as Lee La Rocca.

A.   Yes, it's a conviction-based criminal history.

MFI #41 CRIMINAL HISTORY OF LEE (RALPH) LA ROCCA”

37. Federal Agent Nagel was not cross-examined in relation to Mr La Rocca.

38. Later that day, the Crown called Federal Agent Kazagrandi, a police officer attached to the Cyber Crime team of the Australian Federal Police. During Federal Agent Kazagrandi’s examination in chief, the following exchange occurred:

“Q.  I'm going to ask you some questions particularly surrounding your role in this investigation. Were you asked by the case officer Cody Nagel to make contact with two relevant persons?

A.    Yes.

Q.    One of those was a Terry Balal?

A.    Yes.

Q.    The other was a Ralph La Rocca?

A.    Yes.

Q.    Do you understand that Mr Ralph La Rocca also goes by the name of Lee La Rocca?

A.    Yes.”

39. Federal Agent Kazagrandi also gave the following evidence of attempting to contact Mr La Rocca by telephone:

“Q.   Can I then ask you some questions about your attempts to call Mr La Rocca. It's the case that you were provided a telephone number ending, “111"?’

A.    Yes.

Q.    Is it also the case that around 12.09 on 14 February, you made two attempts to call that number?

A.    Yes.

Q.    On both of those, they went to a voicemail; is that right?

A.    Correct.

Q.    Do you recall any name that was provided through the voicemail message?

A.    The name was, "Lee".

Q.    And these calls were made on 14 February 2023?

A.    Yes.

Q.    Moving forward to 20 February 2023 at about 5.19pm, you again made two further attempts to contact Mr La Rocca?

A.    I did.

Q.   Were you successful in either of those attempts?

A.   No.

Q.   Did you leave a voicemail on either of those occasions?

A.    I did.

Q.    Do you know what you would've said in that voicemail?

A.    I introduced myself and I left a contact number for him to call me back on.

Q.    Did he call you back in the days following the calls of 20 February 2023?

A.    No.

Q.    Going ahead to 24 February 2023, is it the case that again you made another attempt to contact Mr La Rocca?

A.    I did.

Q.   Was that successful?

A.   The call was answered. No one would speak on the other end. I could hear some noises in the background, I hung up the phone and called back again and on that second occasion, the call wasn't answered.

Q.   Following that second call on 24 February 2023, has Mr La Rocca made any attempts to contact you?

A.   No.”

40. Federal Agent Kazagrandi was also not cross-examined about Mr La Rocca.

41. After the Crown called its final witness on 7 March 2024, the following exchange took place in the presence of the jury in which the Crown sought to tender Mr La Rocca’s criminal record:

“CROWN PROSECUTOR MCDONALD: Your Honour, could I have access to MFI 41, please? Your Honour, I tender the document which was MFI 41, being the conviction criminal history.

STRATTON: Objection. This far, it should be made clear, it doesn't relate to the accused.

CROWN PROSECUTOR MCDONALD: It's already been identified by Federal Agent Nagel.

HER HONOUR: It has.

CROWN PROSECUTOR MCDONALD: The person whose criminal history it was was identified by Federal Agent Nagel, I think, yesterday, your Honour.

HER HONOUR: It was, and it was MFI 41, but there is an objection to it, so I think it's something we'll need to deal with. Do you want to come back to this, or do you require it for the next witness?

CROWN PROSECUTOR MCDONALD: I'm about to close my case.

HER HONOUR: We need to deal with it, then, don't we? Members of the jury, perhaps, we'll take an early morning tea. We'll deal with this and, then, have you back. Thank you very much.”

42. It should be noted that the Crown Prosecutor did not refer to the name of the person with whom MFI 41 was associated, namely Mr La Rocca, nor his status as the Appellant’s accountant, when she made this application, and it is unlikely though not impossible that the members of the jury would have recalled that, on the previous day, the fleeting exchange relating to the marking of the document related to Mr La Rocca.

43. Returning to the actual attempt to tender MFI 41, the discussion between the trial judge and counsel continued in the absence of the jury as follows:

“HER HONOUR: Appreciating it was marked MFI [4]1 (as said), appreciating that the person whose criminal record it is has mentioned in evidence as being the subsequent accountant, I think; is that correct?

CROWN PROSECUTOR MCDONALD: Yes.

HER HONOUR: What's the objection, Mr Stratton?

STRATTON: How could this possibly be admissible? It's a criminal record of another person who happens to have been an accountant of the accused. It's clearly inadmissible and, your Honour, I feel I'll have to seek instructions about whether or not to seek a discharge of the jury. It is pure guilt by association.

HER HONOUR: There was evidence in relation to it yesterday, and it was marked for identification but, Madam Crown, on what basis would you tender it?

CROWN PROSECUTOR MCDONALD: Your Honour, it's quite [clear] from my learned friend's questions that, at least, submissions will be made to the jury about Mr La Rocca not being called. We will be resisting a Mahmood direction, but our understanding is that if we were successful in resisting a Mahmood direction, that would not prevent the defence raising, in their submissions to the jury, that they haven't heard from Mr La Rocca. One of the reasons that Mr La Rocca hasn't been called is that he has convictions for dishonesty offences, producing false or misleading documents to a reporting entity and possessing a false document. So that is another reason why the Crown has not called Mr La Rocca.

HER HONOUR: Because he's not seen to be a suitable Crown witness.

CROWN PROSECUTOR MCDONALD: Yes.

HER HONOUR: As I say, the jury will be told that they look at the evidence that's before the Court and, in a case of a circumstantial case, they have the evidence they have, and any lack of evidence is not something that they have regard to. Let me ask; Mr Stratton, do you intend to go to the jury on the basis in relation to Mr La Rocca?

STRATTON: No. Your Honour, in relation to Mr Balal, the foundation was laid about that. Your Honour will recall the specific questions that were asked about his availability and, in particular, his presence in New South Wales. No such questions were asked about Mr La Rocca.

CROWN PROSECUTOR MCDONALD: I think there were questions of Mr Shepherd.

HER HONOUR: I think there may have been as to attempting to get a statement from him.

STRATTON: Yes.

HER HONOUR: I'm not sure if there were about his - but in any event, you don't--

STRATTON: No.

HER HONOUR: I won't go - and in relation to a Mahmood direction for this witness, Mr La Rocca.

STRATTON: Only in relation to--

HER HONOUR: Sorry?

STRATTON: Not in relation to Mr La Rocca.

HER HONOUR: All right.

CROWN PROSECUTOR MCDONALD: Your Honour, look, my recollection was Mr Shepard was asked questions about the availability of Mr La Rocca, but, your Honour, if my learned friend is saying that he will not be submitting to the jury about the absence of Mr La Rocca in giving evidence and, in addition, not seeking a Mahmood direction in respect of Mr La Rocca, then we won't press the tender, your Honour.

HER HONOUR: Thank you.

STRATTON: Your Honour, with respect, I would ask that your Honour direct the jury that they should ignore what they've heard from the Crown that is--

HER HONOUR: Yesterday it was introduced, and I don't think there was any objection to the evidence yesterday.

STRATTON: Your Honour, it was only marked for identification at that stage and I--

HER HONOUR: It was identified.

STRATTON: Yes, and I was a bit troubled about that, but I assume that the motive for having it marked for identification was in case we called Mr La Rocca, which I don't intend to do.

HER HONOUR: All right.

…

HER HONOUR: In relation today, let me hear from the parties if I was simply to say that the last exchange that occurred before morning tea is to be ignored and leave it at that. It neither highlights the issue and if the Crown's about to close its case that's a line drawn under. Do you want to take instructions?

STRATTON: Would your Honour just pardon us for a moment? Thank you for that time, your Honour. We agree with your Honour's proposal.” (Emphasis added)

44. The trial judge later directed the jury when they returned to Court as follows:

“HER HONOUR: Thank you, members of the jury, and thank you for your patience. The delay was entirely of my making. I had something to attend to which I've done now. Now, before we adjourned there was an exchange at the bar table and with the bench. Members of the jury, I'm going to ask you, please, to disregard that last exchange that occurred just before you were sent out. Disregard that. It forms no part of the evidence. Now, having said that, yes, Madam Crown.

CROWN PROSECUTOR MCDONALD: Your Honour, that is the Crown case.’”

45. A number of points should be made at this stage about the exchange set out in [43] above.

46. First, Mr Stratton candidly accepted and indeed volunteered before this Court that he was wrong to say that “no such questions were asked about Mr La Rocca” in relation to “his availability, and, in particular, his presence in New South Wales”. Indeed, Mr Shepard was asked whether Mr La Rocca still lived in New South Wales (see [35] above), and Mr Kazagrandi gave evidence that he had attempted to contact Mr La Rocca on multiple occasions: see [39] above.

47. Second, in relation to his statement about needing to “seek instructions about whether or not to seek a discharge of the jury” following the Crown Prosecutor’s attempt to have the criminal record admitted, Mr Stratton was asked whether it could be inferred instructions were sought regarding whether to apply for a discharge, and he confirmed they were:

“STRATTON: They were, and your Honour, at this stage, at the end of a very long Crown case, the instructions I received were understandably the accused wanted to proceed.”

48. Third, Mr Stratton accepted that it was, in light of some questions which had been asked as to where Mr La Rocca was living and, by inference, whether he was available to be called by the Crown as a witness, not unreasonable at least for the Crown to have apprehended that there was going to be a submission made that Mr La Rocca should have been called, and a Mahmood direction sought in relation to his not having been called. The form of such a direction, flowing from the decision in Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1, as suggested in the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales is as follows:

“You have heard that [name of witness] has not been called by the Crown to give evidence. You can take the fact that there was no evidence from that witness into account when you decide whether the Crown has proved the guilt of the accused.

I am not inviting you to guess what [name of witness] would have said if they had been called. You must not do that at all. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, a jury is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt … [refer to the submissions of the defence and Crown on the issue].”

49. In relation to the direction to the jury set out at [44] above, four further points should be noted. First, the direction was issued at the request of Mr Stratton: “I would ask that your Honour direct the jury that they should ignore what they've heard from the Crown”. Second, subsequent to suggesting that the direction be made but before it was issued, Mr Stratton sought instructions on the proposed content of the direction, and confirmed it was appropriate: “Would your Honour just pardon us for a moment? Thank you for that time, your Honour. We agree with your Honour’s proposal”. Third, the direction was carefully expressed so as not to identify either the criminal record or the person to whom it referred, thus reducing any risk of prejudice arising. Fourth, in the course of the hearing of the appeal, Mr Stratton was not critical of the content of the direction and accepted “it was entirely appropriate for her Honour to give (sic)” it.

50. I do not consider that the tender/attempt to tender the criminal record gave rise to a miscarriage of justice or caused the trial to miscarry. There was no material risk of prejudice. This is so for a number of reasons.

51. First, the criminal record was never before the jury and was not admitted into evidence. Nothing was said in relation to the nature, severity, number, or date of any convictions that might have been recorded on it.

52. Second, to the extent that there was an attempt to tender the criminal record the day after it had been marked for identification, that attempt did not identify whose record it was. That is to say, there was no repeated reference to Mr La Rocca in the jury’s presence linked to the criminal record.

53. Third, even if, when it was sought to tender MFI 41, one or more of the jurors remembered what that MFI was and to whom it related, the jury was instructed to disregard the attempted tender. In this context, and as I observed in Hamide v R [2019] NSWCCA 219 at [119]-[120]:

“the authorities are replete with statements expressing the trust that our legal system places in juries to follow judicial directions. In The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 (Glennon), Mason CJ and Toohey J said at 603:

“The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.”

In the same case, Brennan J (as he then was) said at 614-5:

“Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced. In Munday, Street CJ repeated an unreported passage from one of his Honour’s earlier judgments:

‘…it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury.’

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.” (footnotes omitted)

See also Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at 425 [31]; R v Bartle [2003] NSWCCA 329; 181 FLR 1 at 16-7 [82]−[83]; TS at [21]; Samadi at 278 [136]; Scott at [188]; and Wilson v R [2019] NSWCCA 38 at [173]−[175] (Wilson).”

54. In Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], Gleeson CJ and Gummow J said:

“The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.”

In the same case, McHugh J said (at [31]) that:

“The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”

55. I would reject the Appellant’s submission that it was “unlikely in the extreme” that the jury would follow the trial judge’s direction to ignore the attempt to tender MFI 41.

56. Fourth, no application was made to discharge the jury after the attempted tender of the criminal record (notwithstanding that Mr Stratton had sought instructions on whether to do so: see [47] above). This was a deliberate forensic decision. Except in exceptional cases, “parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue”: Hamilton (a pseudonym) v R (2021) 274 CLR 531; [2021] HCA 33 at [54], quoting Nudd v R (2006) 80 ALJR 614 at [9]; [2006] HCA 9.

57. In a related context, in Astill v R [2024] NSWCCA 118 at [62]-[63], I observed that:

“the absence of any objection to the form or terms of the trial judge’s summing up to the jury tended against any conclusion that there was a ‘real chance’ that the failure to give the direction now sought as part of the tendency directions given ‘affected the jury's verdict’ or deprived the Applicant of a real chance of acquittal on those counts upon which he was convicted…

… Certainly, the failure to raise an objection by defence counsel is a ‘cogent consideration’ in the context of assessing whether a miscarriage of justice has been established: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37] (Dookheea). Thus, to Beech-Jones CJ at CL’s observation in Cox v R [2022] NSWCCA 66 at [48] that ‘the matters raised by counsel for an accused at the trial … are often a sure guide to the true potential prejudice that the relevant event might have caused’ may also be added ‘and the matters not raised’, at least where no question of competency of trial counsel is relied on: see Dookheea at [37]. No submission was made going to the competency of trial counsel in the present case.”

58. If counsel made a rational forensic decision not to seek a discharge of the jury at trial, that will ordinarily be attributed considerable weight when resolving the question of whether an irregularity occurred during the trial which caused a miscarriage of justice: Dragojlovic v R (2013) 40 VR 71; [2013] VSCA 151 (Dragojlovic); Regina v Yeo [2005] NSWCCA 49 (Yeo); R v Strawhorn (2008) 19 VR 101; [2008] VSCA 101 (Strawhorn).

59. In Dragojlovic, although noting at [158] that a failure to seek a discharge at trial may be excused “in an appropriate case”, Redlich, Weinberg JJA and Bell AJA observed at [171]-[173]:

“The decision whether or not to seek a discharge of the jury when something has gone wrong during the course of a trial, is, necessarily, one that is best taken by the accused, on the advice of his or her legal representatives. It is they who grasp the atmosphere of the trial. It is they who are in the best position to assess whether, as a result of what has occurred, serious prejudice has been done to the accused’s prospects.

For this court to second-guess a considered decision not to seek a discharge, repeatedly reiterated, would, in our view, be both highly unusual, and a significant departure from the approach ordinarily taken in relation to such matters. It would effectively convey to any accused that he or she need not worry about seeking a discharge if something has occurred which warrants it, because this court will step in, and quash any conviction irrespective of what course was adopted at trial. In effect the accused would be given a “free kick”: a chance at acquittal before the jury, and a retrial should there be a finding of guilt.

Short of either flagrant incompetence on the part of counsel, or an irregularity that is so fundamental that a trial judge has no option but to discharge the jury, the refusal to seek a discharge seems to us to pose a significant hurdle in relation to this first ground of appeal.”

60. This Court made a similar point in Yeo, where Adams J (with whom Sheller JA and Sperling J agreed), said:

“[28]    …It will be seen that many of the complaints made in this Court (though mostly also raised below) are very much matters of impression, requiring a judgment as to whether they may have unfairly prejudiced the jury against the appellant in the trial context. In such a case, the fact that very experienced counsel did not seek to have the jury discharged may be a significant indicator of the extent of the prejudice as it was perceived in that context. Of course, later reflection at a time when the whole of the trial can be observed and analysed may give a quite different and much more adverse impression of the extent of the prejudice and counsel may quite legitimately contend on appeal that the trial miscarried even though no application to discharge the jury was made. But that is not to gainsay the significance of an omission by counsel at trial to seek a discharge”. (Emphasis added).

61. A failure to seek a discharge of the jury will be especially significant where it is evident that counsel was alive to the potential for prejudice, turned their mind to the possibility of making a discharge application, made a rational forensic decision against taking that approach, and proceeded to agree with the manner in which the judge proposed to instruct the jury. Such were the circumstances not only in the present case, but also in Strawhorn, in which Vincent, Nettle and Kellam JJA said at [145]:

“Following the judge’s ruling that none of this evidence could be used as evincing consciousness of guilt, counsel for the applicant expressed concern about its potential prejudicial impact, arguing that it now had no probative value. However after consideration, he announced that no application for discharge of the jury would be made and indicated agreement with the manner in which the judge foreshadowed that he proposed to instruct the jury on this aspect. Notwithstanding that careful thought was obviously given by experienced defence counsel to the question whether the presence of this evidence had created such a risk of a miscarriage of justice in the particular circumstances that the jury should be discharged and the decision was made not to make an application, and further that there was clear acceptance that the situation could be addressed by the provision of agreed instructions, the contention has now been made that the trial can be seen to have miscarried on that basis. The view adopted by counsel at the trial cannot, of course, be determinative of the question whether a miscarriage of justice may have occurred and deprive an applicant of the opportunity to argue that a fair trial has not been had. However the assessment made at the time and in the environment of the trial by those engaged in the proceeding on behalf of the person who might be adversely affected will in the ordinary course of events be attributed considerable weight when considering the possibility that the trial may have miscarried.” (Emphasis added).

62. Fifth, only passing reference was made to Mr La Rocca in the course of the evidence, final addresses and the summing up. To the extent that Mr La Rocca’s name appeared in various items of correspondence, that involved him passing on information rather than giving accounting advice to the Appellant. The Appellant did not seek to place either reliance or blame on Mr La Rocca in relation to the count in respect of which he was convicted; rather, much criticism was directed to an earlier accountant: see [11] above. Nor was Mr La Rocca’s role or involvement any material part of the Crown case. The relatively scant and neutral references to Mr La Rocca in the course of the trial which ran for over 30 days bear upon the materiality, or lack thereof, of what is now complained about in ground 1 of the Notice of Appeal. The trial ran for a further three weeks after the marking of the criminal record for identification and the attempt to tender it at the close of the Crown case.

63. Sixth, the trial judge gave a very clear direction to the jury only to consider the evidence before it, to confine its consideration to “the evidence that you’ve heard and seen in the courtroom” and not to engage in any speculation. Again, this Court should proceed on the basis that the jury followed the trial judge’s clear directions.

64. For these reasons, ground 1 of the appeal should be dismissed.

Ground 2

65. The second ground of appeal arose out of a phone call between the co-accused which occurred on 1 June 2017 (the phone call) and which was recorded pursuant to a warrant. The transcript of the call was in evidence and the recording was tendered at trial. In the phone call, Mr Davies discussed with the Appellant a document he had downloaded from the internet “raising something about phoenixing”. The transcript of the phone call contained the following exchange:

“MR DAVIES: I just sent you a document, an interesting document to read.

APPELLANT: Okay.

MR DAVIES: It’s, oh, just on – just on, you know, them raising something about phoenixing, you know, so I just thought I’d send you some document, I downloaded it. Ah, specifically, you should read page nine, quite interesting.

APPELLANT: Yeah.

MR DAVIES: It’s called, um, that section’s called “Legal Phoenixing”.

APPELLANT: Yeah, these – these guys – these guys are on crack, anyway.

MR DAVIES: They find – they’re tryin’ to find – so you read that section, mate, then that – that’s – that’s the category anyway even if we – even if – and that’s not – that’s – that’s not doing any wrong, it’s doin' the right thing, fuckin' hell, mate, losers.

APPELLANT: These people – people are fuckin' stupid, they’ve got no idea. They – they even believe that you purchased an insolvent company. Are the – where do they get their facts from, these fuckin' morons? The company was fuckin' operating for thirteen months after you purchased it.”

66. In evidence was also the transcript of a second phone call, made an hour later, which contained more detail about what appeared to be the same article. The Appellant, however, was not party to this phone call: it was between Mr Davies and another man named “Gaz”. That conversation was not admitted against the Appellant. The Crown submitted, correctly in my view, that that conversation ought to play no role in the appeal.

67. During cross-examination at the trial, Mr Stratton brought Federal Agent Nagel’s attention to what he perceived to be the strong similarities between the document/article to which Mr Davies referred in the two phone calls and an article from the Monash Business School (the MBS Article). The Crown objected when Mr Stratton presented the witness with the MBS Article which became MFI 34 and which is referred to in the second ground of appeal which, it will be recalled, was in the following terms:

“The learned trial judge erred in not permitting cross-examination of the witness Federal Agent Nagel as to his knowledge of an article being discussed by the appellant Martorano and the co-accused Davies and/or to reject the tender of the article which became MFI#34”.

68. Mr Stratton’s cross examination of Federal Agent Nagel was relevantly as follows:

“Q. Can I take you to page 697 of the bundle.

A.   687?

Q.   697. Is that a conversation - I think the date is given in the American way, is that right? It's 2017/6/01. Do you understand that to be 1 June 2017?

A.  Yes.

Q.  You'll see at page 697, you've told us that Male 2 is Mr Davies?

A.  Yes.

Q.  Do you see there's a conversation in which firstly Mr Davies is referring to an article about legal phoenixing?

A.  Yes.

Q.  If I could take you to page 699, there's another conversation which appears to be on the same day?

A.  That's correct.

Q.  It again involves Mr Davies?

A.  Yes.

Q.  If I could take you to page 701, does Mr Davies appear to in fact be reading from an article?

A.  Yes.

Q.  Were you able to track down that article?

A.  Not that I recall.

Q.  Would you have a look at this document first of all. Can you tell us what that document says on the front page?

CROWN PROSECUTOR MCDONALD: I object.

STRATTON: It's pressed.”

69. Interpolating here, the conversation at “page 699” and which continued on page 701 of the bundle was the second conversation in which Mr Davies participated but to which the Appellant was not a party.

70. After the Crown Prosecutor’s objection to the question at the end of the passage set out in [68] above, the following exchange then followed between the trial judge, the Crown Prosecutor and Mr Stratton, noting that he appeared for both accused at the trial:

“HER HONOUR: The witness can read what's on the front page but where do you intend to go past that?

STRATTON: I'm going to attempt to identify the article which has been read by the accused.

CROWN PROSECUTOR MCDONALD: I object, your Honour. It's cross-examination of a document which is not this witness's document. He's given evidence that he didn't locate the document. It does not appear that the document is going to be admissible, so under s 44 of the Evidence Act, it really can't be taken any further.

STRATTON: Your Honour, I do intend to tender the document and in my submission, the document is admissible because the accused is referring to it and relying on it--

HER HONOUR: But that's predicated that that's that document.

STRATTON: That's why I'm trying to establish that first, your Honour.

HER HONOUR: I don't know if you can do it through this witness, with respect.

STRATTON: I think I can, your Honour.

HER HONOUR: I think it's a matter we need to discuss in the absence of the jury. Do you want to move on with something else and come back to this, if that's not inconvenient?

STRATTON: Yes, I could do that.

HER HONOUR: The point that you make is it appears he's reading from an article.

STRATTON: Yes, we say we can identify the page of the article that's been read.

HER HONOUR: With respect, so what?

STRATTON: Your Honour, without knowing that it actually comes from an academic article, the jury might think that either the accused is making it up or reading from gossip, something found on the internet.

HER HONOUR: As you say, the conversation speaks for itself. You've asked the officer if he believes he's reading from an article, he then says, "Yes", but to tender the article in that way, I won't allow. I've certainly allowed the submission to be made that he is reading from an article, but I don't think you can identify an article through the hoops that you're intending to do so.

STRATTON: Your Honour, my submission is it goes to the issue of honesty of the accused, that is that he believes that what he’s doing is honest.

HER HONOUR: I won't allow it.”

71. Although there is an element of ambiguity about it, the “accused” to whom Mr Stratton appears to be referring in the above passage is in fact Mr Davies and not the Appellant. This is confirmed because, later in the trial, Mr Stratton sought to tender the MBS Article itself, in the course of which the following exchange occurred:

“STRATTON: Could I just raise a matter. I concede it's a matter about which your Honour's already ruled, but there's a matter which I didn't put to your Honour. It's in relation to the document, the legal article that I sought to tender. In my submission, that could be admitted into evidence with a direction limiting the use to which the jury can make of it. We say that it's relevant as to the issue of honesty or otherwise of the accused Davies and that it's to establish that he's not making it up. There is an article which he consulted.

HER HONOUR: I understand the argument. I maintain the view. The material speaks for itself, that he says he's reading from an article and the terms of what he says he's reading from are there, so the foundation is there for you to make that submission without that document, which is clearly not the officer's document to go in. The situation is, you can make the submission you wish to advance and - was the article actually marked for identification?

CROWN PROSECUTOR MCDONALD: Yes, your Honour.

STRATTON: Yes, your Honour.

HER HONOUR: Really, it's a matter how the parties choose to deal with that. I'm not sure if the Crown would put against you that such an article wasn't being read from, but whether read from or had informed the accused Mr Davies in the manner that you might submit, but I won't allow the tender of the material to the jury as an exhibit.” (Emphasis added)

72. The second ground of appeal can be dealt with in short compass.

73. To the extent the first part of the ground complains of the trial judge’s upholding an objection by the Crown to a question sought to be asked by Mr Stratton of Federal Agent Nagel (see [68] above), the rejection of that question was entirely proper. The Federal Agent had indicated in earlier answers to questions by Mr Stratton that he had not been able to “track down” the article from which Mr Davies was apparently reading in the second conversation to which the Appellant was not a party. Mr Stratton’s line of questioning was plainly part of an endeavour to identify the article Mr Davies was apparently referring to through a witness who did not know what that article was. Any answer would necessarily have been speculative.

74. Turning to the second aspect of the second ground of appeal, namely the rejection of the attempt to tender the MBS article, whether the identification of the article was in some way relevant to a potential defence for Mr Davies, it had no apparent relevance to the Appellant. There was no evidence, for example, that he had ever read it, and even if he had, there was no attempt to explain how it could enhance his defence or how its ultimate non-admission occasioned a miscarriage of justice to him. The submission that the article’s identification and admission would support a submission that the co-accused possessed an “honest belief that what they were doing was not illegal” did not rise above assertion. Thus, Mr Stratton explained to her Honour that “We say that it's relevant as to the issue of honesty or otherwise of the accused Davies and that it's to establish that he's not making it up”. Whether there was any cogency in that contended-for relevance, it was not in relation to the Appellant.

75. This point was only reinforced by the fact that the phone call on 1 June 2017 in which the Appellant did participate and in which there was a reference to a document on the topic of phoenixing (see [65] above) occurred after the conduct of the parties that formed the basis of the phoenixing of Old and New Premier which occurred primarily in 2013 leading up to the appointment of Mr Shepard, the liquidator, in 2014.

76. For these short reasons, the second ground of appeal should also be rejected.

77. The appeal should be dismissed.

78. FREE JA: I agree with Bell CJ.

79. McGUIRE J: I agree with Bell CJ.

Decision last updated: 29 September 2025