Morex Meat Australia Pty Ltd v The Queen- Doube v The Queen

[1995] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S59 of 1995

B e t w e e n -

MOREX MEAT AUSTRALIA PTY LIMITED

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B16 of 1995

B e  t  w e e n -

MAURICE REX DOUBE

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 1995, AT 11.28 AM

Copyright in the High Court of Australia

____________________

MR C.E.K. HAMPSON, QC:   If it please the Court, I appear with my learned friend, MR S.E. HERBERT, QC, for the applicant, Doube.  (instructed by Gilshenan & Luton)

MR A.B. SHAND, QC:   May it please the Court, I appear with my learned friend, MR M.I. BOZIC, for the applicant, Morex Meat Australia Pty Limited.  (instructed by Bamford Terrett)

MR D.J.S. JACKSON, QC:   May it please the Court, I appear with my learned friend, MR P.J. FLANAGAN, for the respondent.  (instructed by the Director of Public Prosecutions (Commonwealth))

BRENNAN CJ:   Who is going first as between Mr Hampson and Mr Shand?

MR SHAND:   Mr Hampson and I have spoken, your Honour, and he is taking precedence, if he may.

BRENNAN CJ:   Yes, Mr Hampson.

MR HAMPSON:   Thank you, your Honour.  There are three points as the Court will have appreciated from our outline of argument.  The first one relates to the conversation that was given in evidence by the witnesses, Laffey and Schmidt, with Nash, on Friday, 20 March.  They said that having received a direction from the applicant, they went and spoke with Nash and the actual conversation appears in the appeal book No 1.  It has been placed in the application book right at the beginning.

Laffey is the first one and the page there - I am taking them from the appeal book - is page 1.  He said they went to see “Nash at Helidon.....expressed our concerns about having to do it”.  That is to rebag the meat as directed by the applicant.

Can you remember what you said to Mr Nash?---Well, I.....I just told him what we were supposed to do to re-bag this product and I remember Ronnie saying, you know, “If we get busted doing this we’ll never pack another rib finger in the place”, you know.

And it goes over onto the next page, page 2.  Laffey’s account of it is at page 3, about line 10

Did you go back and talk to Nash again?---Yeah, well, Ronnie was still talking to Kev when I went back there and we just probably had a few minutes discussion.

He did not say in fact what it was.

Schmidt, on page 4, starts right at the bottom of the page, line 60, and the text of the conversation is given at page 5 at the top:

I spoke to Kevin Nash and asked him to have a yarn to Maurice -

that is the applicant -

in regards doing this exercise.  I said, “If I get caught doing this”, I said, “I’ll never get a job in a boning room again” or “pack another rib finger in a boning room again.”

There is further evidence in relation to that.  I do not think it takes it any further, on the next couple of pages.  Nash, on page 6, deposes to the fact that there was such a conversation.  He thought it was Schmidt was the one who actually said it. 

he said that he was told to re-bag the beef....He was told to re-bag the grain fed beef because it was too old.

He says:

To the best of my recollection, sir, he didn’t tell me who told him to do it.

And he goes on to give some evidence as to what his position was so far as Laffey was concerned.  They:

were fairly equal within the company.  I could possibly tell Greg Laffey not to do something but whether he did it or not I wouldn’t have much influence over that.....To the best of my recollection, sir, I told Ronnie that he shouldn’t do it.

It goes over.  There is a little more on page 7 but I do not think it takes the matter any further. That is the nature of the conversation.

That, of course, was admitted at trial, over objection.  The applicant, of course, had denied that there had been a conversation at all on the Thursday at Grantham in which any instruction to rebag the beef had been given.  His evidence was that he was absent at Roma, some hundreds of kilometres away from Grantham, at the time the conversation was supposed to have taken place.  He called evidence which established, if it was accepted, his absence.  He tendered some documentation.      In his case, he did not challenge by evidence or by cross‑examination that the relabelling had, in fact, occurred.  His case was that he was not party to it by having given any such instruction.

Our submission is, of course, that on any analysis the evidence reveals these things:  that the conversation cannot be said to be in furtherance of any common plan, design or agreement or made with that intention.  Any purpose for the conversation was really that in the nature of a complaint relating to the rebagging not proceeding.  The conversation, really, was a narrative of past events, namely, of the instruction they said they had earlier been given, and it was admitted on two bases:  one, under Tripodi’s Case, and the other on the basis that it was relevant to the intention of Schmidt and Laffey.  Of course, they gave evidence at the trial and said they did do the rebagging.  So, how their intention on the day after they were given the direction was a fact in issue or relevant to some fact in issue at the trial is hard to see.

GAUDRON J:   The evidence would have been admissible in re‑examination though, would it not, their evidence of the conversation, once they were cross-examined on the basis that there was no such conversation and that they had invented it and they, indeed, were cross‑examined to that effect?  This evidenced would have been admissible in re‑examination, is that not right?

MR HAMPSON:   Only if it was put that it was a recent fabrication, I would have thought, your Honour.

GAUDRON J:   But that was the whole thrust of the defence case.

MR HAMPSON:   The defence case was on the basis that he, in fact, had not given such a direction.  He was innocent of it.

GAUDRON J:   And that these people had not said that there was such a direction until quite a long way down the track.

MR HAMPSON:   That is quite so, that originally they had not involved the applicant at all in their original statements for quite a long time, that is perfectly so, and that is a fact, that they had not, in fact, involved him in any way at all.  But, of course, it is very difficult to say how the matter might have proceeded.  If that cross-examination then had proceeded on that basis ‑ ‑ ‑

GAUDRON J:   But it did, did it not?

MR HAMPSON:   Well, this is evidence-in-chief of course.

GAUDRON J:   I know.  The question I am putting to you is in the light of the cross-examination this would have been admissible in re-examination.

MR HAMPSON:   Yes.  My point though, your Honour, is only this, that cross-examination might well have proceeded in a different way if the evidence had not been admitted.  You see, knowing that there was such evidence, it may well have been in the cross-examiner’s interest to make certain of not making any suggestion of recent fabrication.

BRENNAN CJ:   But it may have been admissible against Morex.

MR HAMPSON:   Yes, I am not contesting that, your Honour.

BRENNAN CJ:   In-chief?

MR HAMPSON:   Yes, it may have been but it was admitted against us and that is the ground of complaint.  Of course, it was very damaging evidence so far as we are concerned because it, in effect, we would say, allowed the witnesses to corroborate themselves, as it were, with relation to the matter.  The reason it was suggested why the rebagging was done, of course, was that Schmidt, in charge of the cold store, had so mismanaged things that he had an excess of this K1 meat which had passed the slaughter date, or the production date it is called, recorded on that bagged meat, that K1 meat, was no longer appropriate to answer contracts because it was too old and that he had built that up, in fact, really to prevent the exposure of the fact that he had bungled in this way.  That he went about rebagging it when he found that there was a contract that had come in and by changing the production date, making it look younger meat, that it could answer that contract.

So, the only evidentiary meaning, we would submit, was really that Doube had told them to do the rebagging.  It was put in-chief; it was objected to but it was admitted, pursuant to the principle in Tripodi’s Case, and also as original evidence of the state of mind of the maker’s of the witnesses.  They were the two bases it was admitted.

Now, we would submit it does not really come within Tripodi’s Case at all.  In Pollitt, in the judgment of Justice Deane, at page 591 - Pollitt was a case, of course, where this Court considered the admission of evidence which went to intention and that the intention was a relevant factor.  In his judgment, before he comes to that particular point, he deals shortly with the non-conspiracy cases and we would just refer the Court:

There are cases, apart from the conspiracy cases, in which the evidence indicates the accused and another person acted in preconcert in the commission of a specific crime.  In such cases, evidence of what the other person did or said in furtherance of the commission of that crime may be admissible against the accused for the reason that the combination or preconcert to commit the crime is “considered as implying an authority to each to act or speak in furtherance of the common purpose” on behalf of the other.  It is at least arguable that the present case fell within that class of case with the result that things said and done by Allen, in furtherance -

that is underlined -

of a criminal arrangement between Pollitt and himself of which evidence had already been adduced, were also admissible against Pollitt.  Even in such cases, however, “it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible ... against his [companion] in the common enterprise”.  The reason why that is so is that such narrative statements are ordinarily not in furtherance of the common design and, therefore, are not within the scope of any implied authority.  Thus, in the present case -

he went on to say that that was not admissible.  Now, we submit that really that short statement of what is involved in cases such as Tripodi is applicable here and makes the evidence inadmissible. 

If it was inadmissible on that ground, as we submit it was, the second ground that was urged, it was evidence of the intention, and the same case, Pollitt, is authority for the fact that evidence of statements made of that kind - the instigator, Allen, in that particular case had made statements to a husband and wife and this Court held that those statements were inadmissible because, in fact, the state of mind of the instigator was not a material fact.  The real issue in the case was identity and the question was whether he, in fact, had arranged this contract killing.  But his state of mind, it was held by the Court, was not a relevant fact and neither was it directly related to any other fact which was a relevant fact in issue in the case.  In particular, we would refer the Court to Chief Justice Mason at page 564 at the bottom, going over onto the top of page 565 and your Honour the Chief Justice dealt with the matter at page - having set out the principle, dealt with their application to the statement by Allen to Mrs Berry, at the bottom of page 584, going over onto page 585.

Reliance was made upon an American case, Annunziato, a decision of a Mr Justice Friendly.  Reliance was placed upon that in the Court of Appeal, and in the judgment of the Court of Appeal the matter was considered.  Annunziato’s Case was referred to.  This is at page 309 of the transcript.  The judgment sets out:

The doctrine that a person’s own statements of intention to do a particular act are admissible -

and that is on the basis on what is admitted here.  It was really said that the intention of Laffey and Schmidt to do the act were relevant.  It was objected to as being hearsay.  In that passage from line 25 on that page, over on to page 310, the court dealt with it.  They then said, at line 30:

The question here is whether any such doctrine forms part of the law in Australia.

And they referred to Walton’s Case and Pollitt’s Case.  In our submission, they did not really identify any fact in issue other than the intention of the witness to commit the crime.  They say, at page 311, line 35:

These statements are, we think, to be considered not merely narrative of past events, but demonstrative of an intention on the part of Laffey and Schmidt to carry out the rebagging operation in the future.

With the greatest respect, that is a doctrine, we would submit, that does not form part of the law of Australia.  It is clearly hearsay.  It is just the narration to the other witness of the fact that they had been given an instruction.

That is the first point and we say that it is an important point because it allows witnesses, in effect, to self-corroborate themselves when they are in that situation.  We submit they were hearsay statements.  They do not fall within any exception to the hearsay statement and it was no more than a conversation, out of court, between three Crown witnesses in the absence of the accused.  It is not only important but very critical, of course, to a case where there was a big division in the trial on the question of Doube’s presence when the direction was supposed to have been given and when he gave evidence and denied it.

The next matter that we seek to raise is the directions that the judge gave on the role of counsel in the case.  They appear in the application book at page 39 and, regarding defence counsel, he said:

Counsel for an accused in a criminal trial such as this has one duty and one duty only.  It is a professional duty and it is a duty, ladies and gentlemen, to represent the accused, that is the lay client, and his or its interest to the best of the counsel’s ability and the counsel is perfectly entitled and indeed under a sober professional duty -

I will not read it all.  It is before the Court.  That was contrasted, at page 40 of the application book, with a direction to the jury as to the role of counsel for the Crown as representing three interests.

First, counsel for the Crown.....must observe the public interest in the general maintenance - in the interest of all, including you and me, in the maintenance of law and order.  Now, that is a wide public interest, as wide as it can be.  They must bear that in mind as they conduct a case such as this.  The second interest that they must represent is the legitimate interest of the community, including you and me, in proving to the proper standard and upon proper evidence -

and so forth.  Then:

The third distinct interest is that, representing the community as they do, counsel for the Crown have no interest in securing a dishonest finding of guilt or an inappropriate finding of guilt -

Now, that seemed to be put in antithesis of the position of counsel for the defence.

Of course, the only duty that his Honour gave the jury of the counsel for the defence was really of trying to get the accused off.  There are a lot of other duties that counsel owes to the court, whether he is defence counsel or prosecuting counsel:  of not misleading the court; there are a lot of other duties which were not referred to.  In our submission, this was a very serious misdirection to highlight the different roles of counsel in this particular way. 

Application was made for redirection but it was refused and the Court of Criminal Appeal did not find any reason to interfere with that.  But the effect of the statements, of course, were that they really suggest there was really no limit to what defence counsel could, as it were, get up to whereas there were these severe limitations on prosecution counsel, which must have had the effect of the jury thinking that all the prosecution evidence is properly processed according to the standards and the like, which might not be the case with the defendant’s witnesses.

So, we would submit the result was to suggest to the jury the submissions of the Crown or the evidence presented by counsel for the Crown were more capable of acceptance than submissions and evidence of the defence.  That would have operated very significantly in favour of the prosecution and unbalance the trial.

The last matter, the last point, we raise is the sentence and the Court will have seen that on the trial judge - he imposed, in fact, what was it, $10,000 fine in relation to the three charges which I might call the “rebagging” charges.  They were two charges of changing the production dates and one charge of using an “Australia inspected” stamp to facilitate that change.  On those, he was ordered to pay, on the first, $9,900 and $50 on each of the other two with six months to pay.  On count 3 he was sentenced to 3 years 2 months imprisonment with a non-parole period expiring on 5 November.  That was one month.  Then we set out when he was released from custody on 5 November.  The appeals were argued on 2 and 3 March.  Judgment was delivered on 3 May and the court, in fact, gave leave and heard the appeal of the director and they varied the fines to terms of imprisonment for 2 years each, to be served concurrently, and the

sentence on count 9 was varied so that the non-parole period was altered to 9 months.  So, therefore - - -

BRENNAN CJ:   Mr Hampson, your time has expired.  Do you have much more that you wish to say?

MR HAMPSON:   No, only to refer to the last consideration by this Court of the matter - it is in our application book - in Phillips and Everitt’s Case makes it very clear how unusual or how strong a case it must be for the Court of Criminal Appeal to allow such an appeal by the prosecution against sentence.  Really, it has to be directed to establishing matters of principle and things of that kind and we submit that this case clearly fell outside those tests.  They are the three points, if it please the Court.

BRENNAN CJ:   Thank you, Mr Hampson.  Mr Shand.

MR SHAND:   May it please your Honour.  May I, your Honour, deal very shortly with the point my learned friend led off with in saying we adopt the submissions made by my learned friend as to the inadmissibility of the evidence under discussion.  Your Honour, we would wish to submit - - -

BRENNAN CJ:   They have nothing to do with your client.

MR SHAND:   Your Honour, in the eyes of the jury, I submit, they may well have a great deal to do with the client because the whole case presented by the Crown was upon the basis that Mr Doube, Mr Hampson’s client, was in fact the company.  So that the evidence, if admissible against him, became admissible against the company in the eyes of the jury should they find that, in fact, the proposition that he was the company was established.

BRENNAN CJ:   What about Mr Nash?

MR SHAND:   Your Honour, in regard to Mr Nash and Mr Laffey, his Honour left the status of those two persons for the jury to find as themselves, having been the company, the embodiment, so that all these alternatives were open but this particular evidence relating to the conversation with Mr Nash was, of course, aimed specifically at Mr Doube.  In that regard, we submit that if the evidence was inadmissible against Mr Doube, it must equally have been inadmissible against the company and had the effect, of course, if accepted by the jury, of providing powerful evidence against the company in relation to the action of the person found to be its embodiment.  That is the way we put it, your Honour, and we submit with respect that is the only way it can be put.

BRENNAN CJ:   There is the way perhaps of saying, “There is Mr Doube, there is Mr Nash.  They are both the company and both of them said ‘Rebag the meat’”.

MR SHAND:   Yes, your Honour.  But the fact is, your Honour, if that be the case and it was available to the jury to approach the matter on that basis, and assuming for the moment that Mr Nash could qualify as the embodiment of the company - and that is a matter with which we join issue in a later point - in our submission, the fact that the jury were entitled to consider that evidence at all, whether it be evidence which might have gone to the implication of Mr Nash or to the implication of Mr Doube, nonetheless, was evidence which was inadmissible.  Mr Nash, your Honour, as we would understand it, in any event, was not shown to have furthered the plan which is alleged to have been involved.  He heard the disinclination expressed by Mr Schmidt and Mr Laffey and, as we would understand the evidence, did not take the matter further.

GAUDRON J:   But intention becomes somewhat more relevant in the case of your client than in the case of Mr Doube.  So, for example, if they communicated their intention to do it to the company and the company let is pass, other consequences might flow.

MR SHAND:   Your Honour, that would, with respect, not fit the case as presented by the Crown.  The whole of the Crown case was upon the basis that the moving party, as the company, was Mr Doube.  He initiated the plan.  The Crown case was it was followed through as a result of that initiation.  As I would understand the case presented, it did not depend upon any action on the part of Mr Nash as having motivated the plan which was charged, so that the evidence was central to the position of Morex.  Your Honours, those are the submissions we make in addition to my learned friends in relation to that matter.

May I come now to the first point we would wish to deal with other than that which one may call the Tesco point which we would rest in detail in our summary of argument, and I say no more in regard to those matters than this, that in the light of the principles laid down in Tesco as to the directions that a jury must receive - if I can just refer for a moment to those, your Honour.  The dictates of the House of Lords were by no means followed.

GAUDRON J:   Surely this can only be of relevance once you are outside the area of the managing director though.

MR SHAND:   No, with respect, your Honour, we submit not.  We submit that the direction which is laid down by the House of Lords encompassed every situation in which it is alleged that a person attached to the company - the expression I use for want of a better one - is the embodiment of the company.  The direction which Lord Reid considered should be given is to be found at (1972) AC at page 173 and is in these terms:

I think that the true view is that the judge must direct the jury that if they find certain facts proved then as a matter of law they must find that the criminal act of the officer, servant or agent including his state of mind, intention, knowledge or belief is the act of the company. 

In other words, the decision of law is always a matter for the presiding judge.  That the duty of the presiding judge is to inform the jury as to facts which, if they find them provided, are capable of supporting the conclusion of law.  That, we would submit, is consistent with procedures in jury trials where questions of law are necessarily involved in the decision, which is to be reached, but, of course, matters of fact must be determined in order to decide what the conclusion of law should be.

Now, your Honours, we have set out in the summary of argument the directions which the learned trial judge gave and they appear at pages 4, 5 and 6 of our summary of argument.  In our submission, what his Honour did was a far cry from the discharge of the duty laid down in Tesco.  I need not perhaps go into detail as to the manner in which the various directions fell short but may I restrict myself to saying that what his Honour did, in effect, was merely to put notions before the jury which they could consider, notions which, with all respect, were vague and left the whole matter up to them including the formula which they were supposed to be able to understand in their approach to the facts.  In other words, what his Honour said, in effect, was, “You have the task of finding out whether Mr Doube”, for instance, “was the heart and mind or the will of the company.  Here are some of the facts you could look at” but in no way did his Honour say what facts might be regarded as sufficient to establish that as the conclusion to be reached.  In our submission, the directions were not only inappropriate but were highly confusing.

BRENNAN CJ:   In the circumstances of this case, is there any possibility that Mr Doube did not answer that description?

MR SHAND:   Yes, with respect, your Honour.  Our submission further is about this matter that the test to be looked at as to whether Mr Doube and, for that matter, any other should be regarded as the embodiment of the company can be found in Tesco, for instance in Lord Reid’s speech at page 174 where his Lordship dealt with the subject of delegation as one of the approaches to the matter where, at the second last line on the page, his Lordship said:

I have said that a board of directors can delegate part of their functions of management so as to make their delegate an embodiment of the company within the sphere of the delegation. 

GUMMOW J:   Tesco’s Case is about putting the wrong advertisement sign in the window of a supermarket.

MR SHAND:   Yes, it was a breach of a trade description requirement on prohibition.

GUMMOW J:   Tesco’s is the sort of corporation that does not have two effective shareholders like this company had, one of whom was Mr Doube.

MR SHAND:   Yes, I am confident that is so.

GUMMOW J:   Tesco is an enormous corporation.  That is the context in which all this is taking place.

MR SHAND:   Yes, but nonetheless, your Honour, the structure remains the same, in our submission.  There cannot be an endless variation in the types of approach which can be made to these matters.  Your Honours, the expression by Lord Diplock concerning this matter - may I just refer to it at page 199 of the report - was in these terms:

a corporation incorporated under the Companies Act 1948 owes its corporate personality and its powers to its constitution, the memorandum and articles of association.  The obvious and the only place to look to discover by what natural persons its powers are exercisable, is in its constitution.  The articles of association, if they follow Table A, provide that the business of the company shall be managed by the directors and that they may “exercise all such powers of the company” as are not required by the Act to be exercised in general meeting.  Table A also vests in the directors the right to entrust and confer upon a managing director any of the powers of the company which are exercisable by them.  So it may also be necessary to ascertain whether the directors have taken any action under this provision or any other similar provision providing for the co-ordinate exercise of the powers of the company by executive directors or by committees of directors and other persons, such as are frequently included in the articles of association of companies in which the regulations contained in Table A are modified or excluded in whole or in part. 

In my view, therefore, the question:  what natural persons are to be treated in law as being the company for the purpose of acts done in the course of its business, including the taking of precautions and the exercise or due diligence to avoid the commission of a criminal offence, is to be found by identifying those natural persons who by the memorandum and articles of association or as a result of action taken by the directors, or by the company in general meeting pursuant to the articles, are entrusted with the exercise of the powers of the company.

Now, with respect, your Honours, the fact of the matter was in this case that there was nothing before the court at all by way of evidence as to the memorandum or articles of association.  There was no evidence of the minutes of the company.  There was no evidence to negative or to establish that there had been delegation of powers to Mr Doube and much less, of course, to either of the other two persons who are left as alternatives.

BRENNAN CJ:   In fact, Mr Doube was a hands-on executive running the business of the company day by day.

MR SHAND:   Yes, your Honour.

BRENNAN CJ:   Now, whatever the directors may have had in their minutes, they suffered Mr Doube to perform that function.

MR SHAND:   Your Honour, it can only happen by the necessary formality of a decision by the board, in our submission.

GUMMOW J:   Why is that so?

MR SHAND:   That is what is necessary for delegation, in our submission.  The articles would display what was necessary, in our submission, and they were not before the court.

GUMMOW J:   But the evidence was, was it not, that this gentleman was the only director who was actively engaged in the day-to-day business of the company?

MR SHAND:   I think that is the effect of it, your Honour, yes.

BRENNAN CJ:   What else do you need?

MR SHAND:   We submit, your Honour, according to what is laid down in Tesco’s Case, you need the formality which must lie behind the investing of the powers necessary to make Mr Doube, in this case, the company.  Otherwise, he merely remains its agent.

BRENNAN CJ:   For the reason that Justice Gummow earlier advanced, I would have thought that was a misreading of Tesco

MR SHAND:   Your Honour, I can but make the submission and that is the submission I make.  May I refer to the most recent expression of opinion by this Court concerning the matter.  May I hand up copies of this one, your Honour.  It is the case of Nissho IWAI Australia Limited v Malaysian International Shipping Corporation, 167 CLR 219, and the passage I should refer to is at page 229, the last three or four lines, and 230. I may just read those if your Honours will bear with me:

The protection given by cl 8(2)(d) was lost only if the lack of reasonable diligence was to be attributed to the company itself by reason of an act or omission of an officer or employee of the company whose act or omission was the act or omission of the company itself.  That is to say, the company was only liable if the lack of reasonable diligence were to be attributed to -

and the quotation comes from Tesco -

“those natural persons who by the memorandum and articles of association or as a result of action taken by the directors, or by the company in general meeting pursuant to the articles, are entrusted with the exercise of the powers of the company”.

So that we do submit that that is support for the formality that we submit is necessary before a conclusion could be drawn concerning the part played by Mr Doube.

Now, we have referred, your Honours, to the decision of the Full Court in our submission.  That is the case of Universal Telecasters v Guthrie 32 FLR 360, to Chief Justice Bowen at pages 364 to 365 which reproduce, we would submit, for the same formality as, we submit, appears in Tesco, the steps that are necessary in order to invest a person involved in the company with the necessary identity so as to become the company.

Those are our submissions, your Honours, which, we submit, lead, if they are acceptable to the Court, to the conclusion that there was undoubtedly a failure to direct this jury in a very important way.  Our submission is also that there can be no doubt that the evidence was greatly deficient in relation to providing a basis for either Mr Nash or Mr Laffey to be concluded to be the company itself or the embodiment of it and the jury were left with those issues as a basis upon which they could reach a finding, in effect, adverse to the company.  Now, those are the submissions, in short form, that we make on the second point.

Your Honours, the third point is to be found on page 6 of our summary of argument.  It depends upon a construction of the Export Control Act, in particular, section 15.

GUMMOW J:   Was this raised in the Court of Appeal?

MR SHAND:   No.  I am afraid I have to say, your Honour, from my client’s point of view, that both this and the previous point were bereft of arguments or excluded or omitted from argument before the Court of Appeal, so that we face that situation.

GAUDRON J:   But you are able to tell us that the points were taken at the trial, are you?

MR SHAND:   In fact, this point, your Honour, was not taken, the one I am about to refer to.

GAUDRON J:   Was not taken at the trial?

MR SHAND:   Was not taken, yes.  But we approach the matter upon the basis that it is a matter of importance.  It is a matter in respect of which there has been a clear error by the trial judge and it is a matter with regard to the administration of the law, in regard to an important area, namely the export area.  This Court may well see fit to overlook - not to overlook, but to make allowance or grant an indulgence in respect of the failure to raise the point at a previous time bearing in mind what we submit can be regarded as the high likelihood that the misdirection in this regard either misled the jury or left the jury with no basis upon which any relevant consideration could be brought to bear.

Your Honours, the point is a short one, in effect.  If one looks at section 15 of the Exports Control Act which is the section under which the charge is brought, it provide that:

A person shall not:

(a) apply a false trade description -

and so far as relevant I will read it -

to:

(i)  any prescribed goods intended or entered for export -

and there is a further portion of section 15(1A) which provides for a person being prohibited from applying:

a false trade description to any prescribed goods in respect of which:

(i)  notice of intention to export the goods has been given -

BRENNAN CJ:   Your time has expired, Mr Shand.  Do you wish to say much more?

MR SHAND:   No, only a couple more matters, your Honour, if I may in regard to this.  The Act evinces one intention and one only to the creation of the relevant intent, that is, it must be the intent of the exporter which is referred to not only in this part of the Act but in section 8 and other relevant portions of it.  It is the intent only of the exporter. 

His Honour, at page 78 of the application book, volume 1 - this is the only direction he gave the jury - line 12:

The fifth element.....intended for export - the quarters must be proved to have been intended for export. 

And then the next relevant passage is this:

That is, that there were 37 quarters of beef, which I assume - prescribed goods, I assume, intended for export, so intended by Morex, or intended for someone else and known by Morex to be so intended by that someone else.

The reference to Morex, we submit, was entirely inappropriate because the intention of Morex, under section 15, was irrelevant.  The reference to by the words “intended by someone else” leave it entirely open and focus no attention at all, for the jury’s point of view, upon the only entity to whom the directions should have referred, namely the exporter.  So that the direction left the jury, we submit, with no support and an erroneous picture

as to the finding they were being invited to make or to consider in relation to the intent.  Those are our submissions, your Honour.

BRENNAN CJ:   Thank you.  Mr Jackson, the only point on which the Court needs to hear you is on the question of the admissibility of the conversation between Laffey and Schmidt, on the one hand, and Nash, on the other, as against the applicant, Doube.

MR JACKSON:   Yes, your Honours.  As we read the applicant, Doube’s summary and listen to the submissions, there seem to be five facts which the statements which were made by Laffey and Schmidt to Nash might tend to prove.  The first, which is the objectionable one or the one that is characterised as objectionable, is the fact that Doube had instructed Laffey and Schmidt to rebag the meat and our learned friends say that fact alone is hearsay.  But the other facts are the ones which we say makes the evidence admissible against Mr Doube. 

The second fact is the fact that Laffey and Schmidt intended to rebag the meat, and our learned friends have made some brief submissions about that.  The third fact was the fact that they did not wish to do so at the time.  your Honours will bear in mind that this is, as our learned friend, Mr Hampson, said, the 20th, the offences being committed on the 22nd.  It is only within a day or so that the offences were carried out.

The fourth fact was that Laffey and Schmidt communicated their intention to rebag the meat to Nash, and the fifth fact was the fact that Laffey and Schmidt appealed to Nash as a person who might be able to do so on behalf of the company to instruct them not rebag the meat.           Now, in our submission, the submissions which have been made on behalf of the applicant, Doube, seek to discard as irrelevant all except the first fact. 

As to the fact of the intention to rebag, our learned friends submit that other evidence given at the trial established the fact of the rebagging and Laffey and Schmidts’ involvement and therefore, as we understand what they are saying, they submit that it was not necessary to have resort to evidence of the intention of Laffey and Schmidt as a fact relevant to prove the fact of rebagging as the Court of Appeal found that one could do.     Our response is simple, your Honours, which is that whether or not it is appealing to do so, the existence of the other evidence tending to prove the fact does not make the evidence of the intention to do so inadmissible for the purpose of proving the fact of the rebagging.

BRENNAN CJ:   What is the relevance of the intention to rebag?

MR JACKSON:   Because intention is evidence which is relevant to the fact of rebagging, in other words, because one intends to do it, one will, in the ordinary course, do it.  And that is the basis on which intention evidence was admitted in a case like Walton where the statement was that the victim intended to go to the shopping mall to meet the accused, though in that case the additional evidence, namely that she gave evidence to say that she had done so was not available.  That is where our case becomes different on that question.  But in Walton the statement by the victim of her intention to do so was admitted as evidence of the fact that she did do so.  And that was one of the basis on which the Court of Appeal admitted the evidence here of intention to rebag the meat.

As to the fact that Laffey and Schmidt communicated the intention to rebag to Nash, who was the shipping manager and assistant general manager, the applicant, Doube, contends, as we understand it, that that was not relevant because the act was not an act in furtherance of the common purpose and submits that because Nash was merely a person who might be interested but did not go that far.  But that was a fact which was found against the applicant in the Court of Appeal for the reasons which their Honours set out at page 307 of the application book, and if we take your Honours to it very briefly.  The relevant passage starts at line 45 where their Honours said:

Nash was the company’s assistant general manager.  He was he said also the shipping manager with responsibility for ensuring that the company “would package and load the product as much as possible in accordance with the contracts we had with customers”.  In that capacity he had an obvious interest in an instruction or proposal which, if carried into effect, would at once have placed the company in breach of its contract with those who had ordered the consignment of 186 tonnes -

et cetera.  In other words, for those reasons we submit to your Honours that the act of communicating the intention to Nash was an act in furtherance of the common purpose.

In that respect, in our summary of argument we have referred to the decision mentioned by Mr Hampson in the Circuit Court of Appeals in the United States of Annunziato - we have copies of that, your Honours - where very similar evidence of communication of intention was treated by that court as being an act in furtherance of the common purpose.  Annunziato is referred to in the reasons of the Full Court.  We will not tell your Honours about the facts but at page 380 of the report, which we have handed up,

referring to the statement by Mr Harry Terker to his son, their Honours said this in the second column, about point 7 on the page:

The statement was not a “merely narrative declaration of a past fact.” Even the instant payment to Annunziato lay in the future; moreover, it might well have been important to Harry’s objectives that his son, then secretary-treasurer and later president of the company, should know of his father’s policy if questions should ever arise -

Here, Mr Nash was the shipping manager, the man who was responsible for the fulfilment of the contracts.  In our submission, he did have a role to play and telling him by what means a proposed export order was to be fulfilled was a step in carrying out the common purpose, and that evidence goes to that fact.

BRENNAN CJ:   I do not think we need trouble you further, Mr Jackson.

MR JACKSON:   Thank you, your Honour.

BRENNAN CJ:   Mr Hampson, do you have anything to say in reply?

MR HAMPSON:   First of all, none of the five facts that our learned friend puts forward as being proved by the statement, in our submission, are facts at issue in the case - none of them.  I took them all down.  The first three are clear intention that they gave the instruction.  They intended to rebag the meat.  They did not wish to do so.  The fact that they just told Nash and finally, that they asked him not to do it.  None of those matters, in our submission, are facts in issue in the case.

So far as Annunziato is concerned, it is a clearly distinguishable case in any event because the Court will see that the third statement which was the most unusual one is distinguishable because, first of all, it was held as admissible with a co-conspirator.  The son was in fact approving of it.  That is not the case with Nash.  He was completely independent of this.  He played no part in the debagging operation at all.  It must have been admitted on the basis that it was just a declaration of the intention of the father.  He, the son, was in a position in the company such that he must be taken to have agreed with his father’s act and that, of course, is not the case with Nash. 

So, we would submit that the case is a different one.  It is not applicable here at all.  If in fact it was said that it could be, it is inconsistent, quite clearly, with this Court’s decision in Pollitt’s Case.  I do not know that I can add anything further.

BRENNAN CJ:   Thank you, Mr Hampson.

The first ground on which special leave to appeal is sought by the applicants is that the conversation between Laffey and Schmidt on the one hand and Nash on the other was inadmissible.  As against the corporate applicant, the authority of Nash to whom Laffey and Schmidt resorted was sufficient to make his conduct admissible.  Having regard to the cross‑examination of Laffey and Schmidt, evidence of their conversation with Nash would have been admissible in re-examination.  Without endorsing the basis on which the evidence was held by the Court of Criminal Appeal to be admissible against Doube, we are of the opinion that the prospect of success by either applicant on this ground is insufficient to warrant a grant of special leave.

The second ground advanced by Doube is that the trial judge unfairly distinguished between the role of the prosecutor and counsel for the defence to the disadvantage of the accused.  The question of the functions of counsel in a criminal trial is important but, in the circumstances of this trial, the terms of the summing up do not present a question of sufficient importance to warrant a grant of special leave.

The corporate applicant seeks special leave to appeal on the ground of inadequacy of direction by the trial judge as to the findings to be made that would support a conviction against the corporate applicant.  On the facts of this case, the directions given by the trial judge could not have led to any miscarriage of justice.  It is not appropriate to grant special leave to appeal on that ground.

The corporate applicant further challenges the direction given by the trial judge as to the element of intention to export goods which is contained in section 15(1)(a)(i) of the Export Control Act 1982 (Cth). The brief direction given by the trial judge was not the subject of any request for redirection at the trial, nor was the question raised on the appeal to the Court of Criminal Appeal. Without having a full appreciation of the significance of the issue in the conduct of the trial, the brevity of the trial judge’s direction cannot be shown to be productive of any miscarriage of justice.

The increasing of the sentence by the Court of Criminal Appeal does not, in the circumstances of this case, reveal a contravention of sentencing principles. 

For these reasons, special leave is refused on both applications.

The Court will adjourn to a date to be fixed.

AT 12.24 AM THE MATTER WAS CONCLUDED