Mullins v The Queen

[1995] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P31 of 1994

B e t w e e n -

MARTIN DESMOND MULLINS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 MAY 1995, AT 2.13 PM

Copyright in the High Court of Australia

MR A.R. BEECH:   If it please the Court, I appear for the applicant. (instructed by Shane Brennan)

MR J.R. McKECHNIE, QC:   If it please the Court, I appear with my learned friend, MS J.A. GIRDHAM, for the respondent. (instructed by the Director of Public Prosecutions (Western Australia))

BRENNAN CJ:   Yes, Mr Beech. 

MR BEECH:   Your Honours, this application raises an issue of fundamental importance to our system of criminal justice.  That issue is as to the existence and the content of the right of an accused person not to be called upon to answer a charge unless and until the Crown has made out a case to answer, and we say that that right is a part of our accusatorial system of criminal justice and flows from the cardinal principle that the onus of proof is on the Crown.

BRENNAN CJ:   Well now, Mr Beech, this is not based upon any question of whether or not the cheques were in fact deposited on the day in question, is that right?

MR BEECH:   That is correct, your Honour.

BRENNAN CJ:   It is a question of the knowledge that was held by the accused of the assignment of the debt, is that right?

MR BEECH:   We would not put it in that way, your Honour.  It is the question not of specifically the applicant’s knowledge; the knowledge that is essential, in our submission, is the knowledge of the company, Westwind, who was the owner of the debts owed to it unless Westwind had passed property in those debts to somebody else.

BRENNAN CJ:   And had it done so?

MR BEECH:   In our submission, on the Crown case, at the relevant time which is 1 June, it had not done so.  My friends, in their submission, the respondents, point out that there was knowledge by 14 June ‑ ‑ ‑

TOOHEY J:   Now, wait a moment, Mr Beech, you are running two concepts together.  Knowledge of what happened is one matter; what in fact happened is another matter.  The theft is alleged to have taken place on 14 June 1990.  Putting to one side for a moment the question of knowledge, at that time, had not Westwind sold its book debts to Holric?

MR BEECH:   No, it had not, in our submission, your Honour, at least not on the evidence lead by the Crown and we say that for this reason.  The Crown case was always that the passing of property in the debt occurred by operation of the deed, which was the deed between Westwind and Holric, but which the Crown said the essential terms of which governed the relationship between Westwind and Safety Tech after Safety Tech took over the operation.

The way that that deed operated, your Honours will have seen from the papers, was that the sending of an invoice in respect of a particular debt by Westwind was an offer by Westwind for Holric to factor its debt and it was to be accepted by the payment of a cheque by Holric.  So, the Crown case was, in essence, that on 1 June, by sending the relevant invoice or invoices, Westwind made an offer to Safety Tech, but the answer to that, in our submission, was that on the Crown evidence, Westwind had no knowledge of Safety Tech’s involvement and in that circumstance cannot have made an offer to Safety Tech.

BRENNAN CJ:   Who owned the cheque that Westwind got?

MR BEECH:   Does your Honour mean the cheque that was received from the debtor?

BRENNAN CJ:   No, the cheque that was received from Holric or Safety Tech?

MR BEECH:   On 1 June when a cheque was received, in our submission, the true analysis is that that cheque was not an acceptance of any offer.  It was likely paid under a mistake of fact by the payer, which was Safety Tech, who, although the evidence is not complete, one imagines Safety Tech on 1 June believed itself to have a contract or believed itself to have received an offer, but in our submission ‑ ‑ ‑

BRENNAN CJ:   Well, whatever it believes, did Westwind have any title to it?

MR BEECH:   Well, your Honour, that is not the cheque that is said to have been stolen.  The cheque that is said to have been stolen is the cheque that was later received on 14 June in payment of the debt said to have been factored to Safety Tech.

GUMMOW J:   This is count 16?

MR BEECH:   It is, your Honour.  Count 16 is the only subject of this application.

TOOHEY J:   And who was that cheque made payable to?

MR BEECH:   It was a cheque payable to Westwind for one of Westwind’s debts but the Crown case was that at the earlier time, 1 June, Westwind had factored that debt and, therefore, had passed property in any cheque that was later to be received in satisfaction of the debt.  But, in our submission, the fatal gap in the Crown case was that on 1 June no offer could have been made on the Crown evidence by Westwind to Safety Tech because there was no evidence that Westwind had any knowledge of Safety Tech’s involvement ‑ ‑ ‑

TOOHEY J:   But those earlier dates are not particularly relevant, are they, Mr Beech?  The operative date is 14 June.

MR BEECH:   In our submission, the way that the Crown case was put and the way that the Court of Criminal Appeal approached it was that, if property was passed, it was passed by the transactions that occurred on 1 June.

GUMMOW J:   Property in what though?  This puzzles me a bit.  Property in what?

MR BEECH:   Property in the debts that were the subject of the invoices that were sent by Westwind on 1 June.

GUMMOW J:   We are talking about theft of the cheque though, are we not?

MR BEECH:   Certainly, your Honour, but the Crown case - and the Court of Criminal Appeal approached the matter on this basis - was that property in the cheque had passed to Safety Tech because property in the debt the cheque was being paid in satisfaction of had been passed by what happened on 1 June.

GUMMOW J:   Yes, but who could collect the cheque for payment?  Who could present and collect the cheque, I wonder?  It is made payable to Westwind, is it not?

MR BEECH:   Yes, your Honour.

GUMMOW J:   What were they supposed to do?  You might not be the right person to ask this, but what were they supposed to do:  send it back or endorse it?

MR BEECH:   Is your Honour asking me about the cheque from Westwind’s debtor?

GUMMOW J:   Yes.

MR BEECH:   If there had been a factoring of the debt, then, in accordance with the agreement, Westwind was collecting the cheque as agent for Holric in accordance with the Holric agreement.  But what we say is that on the Crown case there had not been a factoring of the cheque.  In other words, there had not been - I will rephrase that, your Honours.  There had not been a factoring of the debt.  There had not been any passing of property in the debt.

Can I take your Honours to the way that the court below approached this matter because, in our submission, it is instructive to compare that court’s analysis of counts 7 to 10 with its analysis of count 16.  At page 67 the analysis of counts 7 to 10 begins.  At line 30 the question of evidence of the debts being acquired by Safety Tech is asked.  It is instructive, we say, that the question is asked as at 9 May 1990.  That is the date that the invoices were sent.  It is not the date that the later cheques were received, which is 21 and 23 May.  Over the page on page 68 at lines 4 to 5, the conclusion is:

The evidence is quite inadequate to establish that on 9 May Westwind had any knowledge of a change in ownership of the business.

The conclusion flowing from that, your Honours, is at lines 18 to 20:

the only justifiable conclusion is that the relevant offers for the factoring of the book debts involved in Counts 7 to 10 were made to Holric and that they were purportedly accepted by Safety Tech.

In our submission, that is a correct analysis.  When the same analysis is applied to count 16 with reference only to the evidence led by the Crown, the very same conclusion must follow.

TOOHEY J:   Just before you leave that page, Mr Beech, because it is relevant, I think, to what you are about to develop, if you look at line 5, there is a sentence which reads:

The first date on which it can be said, on the evidence, that the appellant and Westwind knew that Safety Tech had taken over the business was 31 May 1990 at a lunch meeting attended by the appellant -

and those other persons who had been named.  Does that set a relevant date for the purposes of count 16?

MR BEECH:   It is relevant, your Honour, because the important point is that the date of 31 May 1990 did not arise on the Crown case; it arose only after the rejection of the “no case” submission and when the applicant gave evidence.  It was only then that that date, 31 May, was given for the relevant meeting.  That appears at page 69 from lines 15 to 20.

TOOHEY J:   On the Crown’s evidence, until the completion of the Crown’s case, I gather the position was that the applicant had no notice of the sale until 13 June, is that right?

MR BEECH:   Yes, your Honour.

TOOHEY J:   Even on the Crown case, did he not have notice of the sale of Holric’s business on 14 June, which is the date on which the offence is said to have been committed?

MR BEECH:   Yes, certainly, your Honour, but what we say is that the passing of property either did or did not occur as a result of what happened on 1 June.  An offer was made.  We say the proper conclusion is that the offer was made to Holric and anything done by Safety Tech in purported acceptance of that offer was not effective to give rise to a contract or to pass property in the debts, the subject of the invoices that had been sent by Westwind.

TOOHEY J:   But do you say that was still the position as at 14 June?

MR BEECH:   We do, your Honour, because nothing else occurred of relevance, and so nothing was done to pass property in any cheques subsequently to be received subject of the invoices sent on 1 June.

TOOHEY J:   What do you say had to be done in order to pass property?

MR BEECH:  If an offer had been made to Safety Tech, and that offer had been accepted, then that would have been sufficient.  But that did not occur, in our submission.

TOOHEY J:   I take it you do not mean an offer in respect of each cheque, but rather when the business was sold?

MR BEECH:   Either method would, we accept, have been sufficient, but neither occurred, in our submission, on the evidence.

BRENNAN CJ:   What happened was that Holric sold its business to Safety Tech, is that right?

MR BEECH:   Yes.

BRENNAN CJ:   Safety Tech, in fact, continued to trade under the name of Holric; is that correct?

MR BEECH:   Yes, it is, your Honour.

BRENNAN CJ:   So, Holric continued in existence?

MR BEECH:   As a business name, it did, yes.

BRENNAN CJ:   And as a company?

MR BEECH:   Yes, the previous owner of the business was Holric Factors Pty Ltd.  I do not think there was any evidence as to what it did after it sold the relevant factoring business.

BRENNAN CJ:   Who drew the cheque which was given to Westwind in purported payment of the amount due under the factoring agreement?

MR BEECH:   It was drawn by Safety Tech, your Honour.

BRENNAN CJ:   By Safety Tech.  It was a Safety Tech cheque?

MR BEECH:   Yes.

BRENNAN CJ:   And it was deposited to the credit of Westwind?

MR BEECH:   Yes, your Honour.

BRENNAN CJ:   Do I take it that Westwind then drew on that cheque and otherwise used the proceeds of the cheque as its own property?

MR BEECH:   That can be taken to be so, your Honour, yes.

BRENNAN CJ:   So that Westwind took the benefit of the purported arrangement with Holric, in fact with Safety Tech, but nonetheless, banked the cheque that came from the original debtor.

MR BEECH:   He certainly did bank the cheque, your Honour.  But, in our submission, having a different entity as the drawer of the cheque alone is not sufficient to conclude that a contract came into being with the drawer of the cheque because, in our submission, equally plausible is that a person has an arrangement with a known company but a different company may pay a debt pursuant to that arrangement without the arrangement being altered.

BRENNAN CJ:   In those circumstances why would not Safety Tech have had a special property within the meaning of section 371 of the Code in the cheque that came from the debtor?

MR BEECH:   Because, in our submission, Safety Tech may well have had a special property in the cheque that it sent to Westwind in the mistaken understanding that it had a contract and that it had purchased the debts, but in our submission property in the debts had not passed and no title giving rise to any special property arose for the benefit of Safety Tech.

BRENNAN CJ:   But as between Westwind and Safety Tech they had conducted themselves on the basis that there was a sale and that it was only on that basis that Westwind was entitled to bank the Safety Tech cheque.

MR BEECH:   But Westwind had conducted itself on the basis that there was a sale, your Honour, but, in our submission, not on the basis that it was a sale to Safety Tech.

BRENNAN CJ:   Then why did they bank the Safety Tech cheque?

MR BEECH:   Because, in our submission, there was an existing arrangement with a known company and the drawer of the cheque being a different entity is not, in our submission, sufficient to give rise to Westwind having knowledge that it was a new arrangement with a new entity rather than simply a debt being paid by some other company related to the company with which the arrangement existed and, therefore, property, if it passed to anyone - the intention of Westwind could not have been, in our submission, to pass property to anyone except, at most, Holric Factors Pty Ltd.

BRENNAN CJ:   It can be dealt with in one of two ways, can it not?  One is that as between Westwind and Safety Tech the assumed basis on which they had acted prior to the receipt of the debtor’s cheque was that the proceeds of the debt belonged to Safety Tech.  The other is that they assumed that the cheque drawn by Safety Tech was being paid in discharge of Holric Pty Ltd’s debt and the proceeds of the debt therefore belong to Holric.

MR BEECH:   Yes, there are those alternatives, your Honour.

BRENNAN CJ:   If the indictment had laid the ownership of the cheque in either Safety Tech or, alternatively, in Holric, would you have had any defence?

MR BEECH:   No, we would not, your Honour.

BRENNAN CJ:   Then your sole complaint is that the amendment was not sought or made to the indictment.

MR BEECH:   That, in relation to this count, would have remedied this difficulty, your Honour, yes, but no amendment was sought and the decision of the Court of Criminal Appeal to take into account the evidence of the applicant is critical to its upholding of the trial judge’s ruling that there was no case.

BRENNAN CJ:   If there any miscarriage of justice?

MR BEECH:   There is, your Honour, because, in our submission, whenever there is no case to answer on a true analysis, an accused has there and then a right to a directed acquittal.  I refer your Honours to the English Court of Criminal Appeal decisions that are mentioned in the outline; Abbott and Cockley.

BRENNAN CJ:   Yes, but there was a case to answer though.  It might not have been the case made in the indictment here, and Trainer v The King makes it quite clear that in charges of stealing the amendment power is freely exercised where it is the question simply of the title to the property alleged to be stolen.

MR BEECH:   Certainly, your Honour, but only upon an application, and no application was made.

BRENNAN CJ:   That is really the only point you have got, is it not?

MR BEECH:   Yes, it is, your Honour.  Those are the applicant’s submissions, may it please the Court.

BRENNAN CJ:   We need not trouble you, Mr McKechnie.

Despite the helpful submissions that have been made by Mr Beech for the applicant in this matter, the Court is not satisfied that this application would, if granted, enjoy sufficient prospects of success to justify a grant of special leave.  For that reason special leave will be refused.

AT 2.36 PM THE MATTER WAS CONCLUDED