Ohl v Tasmania
[2021] TASCCA 1
•21 January 2021
[2021] TASCCA 1
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Ohl v Tasmania [2021] TASCCA 1 |
| PARTIES: | OHL, Norman Edward |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 1491/2019 |
| DELIVERED ON: | 21 January 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 12 March, 1 May, 19 May 2020 |
| JUDGMENT OF: | Wood J, Brett J, Martin AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Procedure – Notices of appeal – Time for appeal and extension thereof
– Application for an extension of time for leave to appeal – No merit in grounds of fresh evidence and
incompetence of counsel.
Criminal Code (Tas), s 418(2). Aust Dig Criminal Law [3555]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Fresh evidence – Availability at trial, materiality and cogency – Availability at trial – Evidence in possession of Crown not disclosed to defence – Fresh evidence said to be disclosure that key documents not stored on hard-drive – Contents constructively available – Marginal relevance – Disclosure highly unlikely to be exculpatory – Evidence
on application does not show that documents were not on hard drive.
R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417, considered.
Aust Dig Criminal Law [3498]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Where defence counsel said to have failed to abide by instructions – Counsel did not obtain a copy of CD of downloaded contents of hard drive disclosed by Crown and examine it – Not warranted given defence
case and instructions provided by the applicant.
R v Birks (1990) 19 NSWLR 677, referred to.
Aust Dig Criminal Law [3515]
REPRESENTATION:
Counsel:
Applicant: G Melick SC and R Broomhall Respondent: J Hartnett SC
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2021] TASCCA 1 |
| Number of paragraphs: | 149 |
Serial No 1/2021
File No 1491/2019
NORMAN EDWARD OHL v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL WOOD J BRETT J MARTIN AJ 21 January 2021 |
| Order of the Court: |
The application for an extension of time for leave to appeal, filed 18 June 2019 and described as a "notice of appeal", is dismissed.
Serial No 1/2021
File No 1491/2019
NORMAN EDWARD OHL v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL WOOD J 21 January 2021 |
1 On 4 June 2019 Marshall AJ refused an application for an extension of the time in which an application may be made for leave to appeal to this Court with regard to the applicant's conviction. After a trial the jury had found him guilty of two counts of dishonestly obtaining a financial advantage. The application to extend time, dated 18 October 2016, annexed an application for leave to appeal and the proposed grounds of appeal. Those grounds were the focus of the hearing before Marshall AJ. Once an application for an extension of time is refused by a single judge, an applicant is then entitled to have it determined by this Court by virtue of s 418(2) of the Criminal Code. A "notice of appeal" against the decision of Marshall AJ was filed by the applicant on 18 June 2019. It was common ground that it should be treated as an application to extend time to be determined by this Court and indeed, the position of the parties was reflected in a consent order. This Court heard the application de novo based on the evidence before Marshall AJ, and again, the proposed grounds of appeal set out in the application dated 18 October 2016 were relied on by the applicant and were the focus of submissions.
2 I have had the benefit of reading the reasons of Martin AJ and I agree with those reasons. The application for an extension of time for leave to appeal, described as a "notice of appeal", should be dismissed.
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File No 1491/2019
NORMAN EDWARD OHL v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BRETT J 21 January 2021 |
3 I have had the benefit of reading the reasons in draft of Martin AJ. I agree with his Honour that the application for leave to appeal should be dismissed, and that there are no reasonable prospects of success disclosed by the proposed grounds of appeal. In particular, I agree with his Honour that there is no merit in the argument which underpins grounds 1-3, that the prosecution failed to disclose prior to trial exculpatory evidence, or that such evidence, in particular the existence and contents of the CD described by his Honour, contained exculpatory material which was not made available to the applicant or his legal representatives prior to trial. I respectfully adopt his Honour's reasons for this conclusion and have nothing to add.
4 I also agree with his Honour's reasons for concluding that ground 4 is without merit. Although the argument in relation to this ground narrowed considerably during the hearing of the application by this Court, on the basis of the material which had been presented to Marshall AJ, the complaint about competence of counsel was considerably wide-ranging. One aspect of the complaint concerned defence counsel's cross-examination of the prosecution witnesses. In relation to this aspect, Marshall AJ commented that:
"While some general criticisms may be made about [counsel] not putting very detailed instructions to Crown witnesses in cross-examination ... it is not clear that he acted in an incompetent fashion."
5 In my view, there is some justification for the criticisms noted by his Honour. For example, in respect of count 1, the applicant's affidavit in these proceedings suggested that he had signed a contract for the purchase of the relevant property, and that the complainant, Mr Fraser, had offered to pay the applicant $100,000 as consideration for including him in the purchase. Although this was hinted at during the cross-examination of Mr Fraser by senior defence counsel, Mr Barker SC, I am not satisfied that this position was clearly put to him or otherwise explained to the jury. Of course, these facts, if true, provided a complete defence to the charge and explained the crucial discrepancy between the aggregate price of $350,000, which the prosecution asserted was part of the false representation made by the applicant to Mr Fraser, and the actual price disclosed in the written contract, $250,000. Similar observations can be made about the cross-examination of Mr Demeyer in respect of count 2, although the omission of a crucial piece of the applicant's case is not as clear.
6 However, the failure to put these matters in cross-examination does not, in the circumstances of the trial, amount to a miscarriage of justice. Firstly, the applicant has not clearly demonstrated that his instructions to counsel at the trial were as comprehensive or of the same nature as that contained in his affidavit. That version is certainly not reflected in the same detail in the written material that was provided to trial counsel, and he has not provided evidence to establish that these instructions were provided to his lawyers verbally. Further, and most importantly, as Martin AJ has pointed out, defence counsel did not have the benefit of evidence of that version of events, or indeed any version inconsistent with that advanced by the prosecution witnesses. The applicant did not give evidence and there was no evidence presented of any out of court representation, such as a police interview. Evidence of an exculpatory version could only have come from the applicant and he had instructed his lawyers that he would not give evidence. I note, in this respect, Martin AJ's discussion of Mr Stevens' evidence, and the concession by the applicant when he was cross-examined in the proceedings before Marshall AJ, that he had signed written instructions to his counsel at the trial that he would not give evidence. Further,
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according to Mr Stevens, there was a reason why the applicant decided not to give evidence, and that was to do with his inability to satisfactorily explain the contents of "a particularly damning email". In those circumstances, it is not possible for the applicant to establish a miscarriage of justice arising from his failure to give evidence.
7 Ultimately, the determination of this case depended on the jury's assessment of the credibility and reliability of the evidence of Mr Fraser, Mr Demeyer, and the other prosecution witnesses. The evidence of the two principal witnesses for the prosecution was corroborated, in some respects by the other witnesses, and certainly by the documents presented by the prosecution. Without an evidentiary basis to support an exculpatory version of the circumstances surrounding the creation of and the contents of the documents, it is unlikely that any further cross-examination would have affected the jury's assessment of the credibility of those witnesses. In those circumstances, it cannot be said that any actual omissions or shortfall in counsel's cross-examination of the relevant witnesses resulted in a miscarriage of justice.
8 I agree with the orders proposed by Martin AJ.
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File No 1491/2019
NORMAN EDWARD OHL v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL MARTIN AJ 21 January 2021 |
| Introduction |
9 On 14 February 2014, after a trial before a jury, the applicant was found guilty of two crimes of dishonestly obtaining a financial advantage. On 17 February 2014, Tennent J convicted the applicant and imposed a sentence of imprisonment for 14 months, 6 months of which was suspended. On a subsequent appeal by the Director of Public Prosecutions (DPP) against the adequacy of the sentence, the Court of Criminal Appeal allowed the appeal and imposed a sentence of 3 years and 3 months' imprisonment, with eligibility for parole after serving half of that sentence.
10 The applicant sought special leave to appeal, but on 9 April 2015 the High Court refused special leave. The applicant was released on parole on 28 September 2015.
11 The applicant first sought to appeal against his conviction through an application for leave to appeal filed on 18 October 2016. The grounds which the applicant sought to argue were as follows:
"1 Cogent evidence not available at the time of trial, and not discoverable by reasonable means at that time, has now become available;
2 Exculpatory evidence in the possession of the prosecution prior to his trial was not made available to the applicant or his advisers; 3 Full and proper disclosure of relevant, or potentially relevant, material was not made available to the applicant or his advisors prior to trial; and 4 The applicant's trial miscarried due to the incompetence of his counsel who;
a failed to abide by instructions provided by the applicant, and b failed to understand the appropriate elements of the offence, relevant statute
provisions and relevant case law."
12 On 4 June 2019 Marshall AJ dismissed the application to extend time within which the application for leave to appeal could be brought pursuant to s 407(5) of the Criminal Code. By a notice of appeal dated 18 June 2019, the applicant appealed against the decision of Marshall AJ on the following grounds:
"1 Holding that the absence of material was not sufficient to constitute fresh evidence. 2 Holding that the Crown had made appropriate disclosure prior to trial. 3 Holding that the appellant did not need the time required to obtain a copy of the disc in order to make the original application. 4 Accepting the submission of the Crown Counsel that downloading of a document may show up as a modification of a computer file in the absence of any expert evidence. 5 Holding that there was no reasonable explanation for the delay in submitting the original appeal."
13 Although the applicant filed a notice of appeal from the decision of Marshall AJ, in substance the proceedings in the Court of Criminal Appeal were not argued as an appeal against his Honour's decision. Based on the evidence before Marshall AJ, in effect the original application of 18 October 2016 was heard de novo by this Court.
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14 For the reasons that follow, in my opinion the appeal should be dismissed.
Basis of application
15 In support of the application for leave to appeal, on 18 October 2016 the applicant filed an affidavit dated 13 September 2016. The affidavit failed to disclose material which might provide a reasonable basis for any of the proposed grounds of appeal. In particular, the affidavit did not identify any material which might fit the description of "cogent evidence not available at the time of trial" (ground 1) or "exculpatory evidence in the possession of the prosecution", but not made available to the applicant prior to trial (ground 2).
16 Before Marshall AJ, and in this Court, the applicant relied primarily on two features associated
with the trial:
(i) The failure of the Crown to disclose the contents of a CD containing material downloaded from the hard-drive of the applicant's computer;[1] and
(ii) The absence from the CD of two documents upon which the Crown relied at trial with respect to count 2, namely, Exhibits P13 and P16.
[1] The existence of the download to the CD was known to the applicant at trial, but provision of the CD to the applicant
17 In this Court, and before Marshall AJ, the Crown conceded that Exhibits P13 and P16 were not on the CD and were, therefore, not on the hard-drive of the applicant's computer. The oral hearing in this Court proceeded on that basis. In essence the applicant contended that the absence of the documents from the hard-drive was "fresh" evidence and a miscarriage of justice had occurred.
18 Following oral submissions, on 12 March 2020 judgment was reserved. On 20 April 2020, the Crown contacted the Court and, in the following terms, sought to withdraw the concession that Exhibits P13 and P16 were not on the CD/hard-drive:
"The respondent conceded that neither P13 or 16 were on the subject disc. This concession was made consequent of the assertions made by the Appellant's in submissions. This is not a criticism of the Appellant's, however when preparing the disclosure response for the court, it became apparent that the factual foundation for the submission and therefore the concession is erroneous. Upon re reading of Dr Schatz's report and an email exchange with Dr Schatz, it was clear that he was not asked to search the disc for either P13 or P16. He does not recall whether he was provided a copy of either P13 and P16 but said that his practice was to only search for exhibits as per his instructions (which do not include or mention P13 or P16). Dr Schatz further advised that whilst there are Quick books files on the disc, he has not opened them as he would need Quick books which he does not have and has not searched. Kevin Clayton's statement indicates that only the files not the Quick books software was downloaded (The Quickbooks software was present but only the financial files were copied to the forensic server)."
19 The Court permitted the concession to be withdrawn and sought further submissions. If, as contended by the Crown, there is no evidence before this Court to support the applicant's case that P13 and P16 were not on the CD/hard-drive, the primary basis of the applicant's case would be fatally undermined.
20 The evidence and competing submissions are discussed later in these reasons. In my opinion, the evidence before this Court fails to raise a possibility that Exhibits P13 and P16 were not on the CD. In these circumstances, the applicant has failed to establish any basis upon which this Court might properly grant leave to appeal.
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21 Notwithstanding this conclusion, it is necessary to canvass the evidence and circumstances of the trial. It is appropriate, therefore, first to discuss the application on the basis advanced in oral submissions, namely, that Exhibits P13 and P16 were not on the CD/hard-drive.
| The trial | |
| 22 | A convenient summary of the charges and critical prosecution evidence is found in the judgment of Blow CJ in the Court of Criminal Appeal on the Director's appeal against a sentence: Director of Public Prosecutions (Acting) v Ohl [2014] TASCCA 4 at [2]-[5]: |
"[2] The two charges related to two separate fraudulent transactions, with different victims. Count 1 concerned the acquisition of a property in Rokeby. The respondent operated a company named Let's Fix It Pty Ltd. A professional relationship and a friendship developed between the respondent and a Mr Fraser. Mr Fraser had a friend named Nanda. Mr Fraser, Mr Nanda and the respondent became involved in the purchase of some commercial properties. The three men set up a company named RKN Investments Pty Ltd. In July 2004 the three men agreed that that company would purchase the Rokeby property as an investment. On 29 July 2004 the respondent signed a contract for the purchase of the property for $250,000. In that contract he 'and or nominee' was named as the purchaser. Mr Fraser gave evidence at the trial that the respondent told him in July 2004 that the purchase price was $350,000; that he did not see the contract at that stage; that the settlement date was 29 September; and that, as the settlement date approached, the respondent told him and Mr Nanda that the vendors would like two separate contracts, one for $250,000 for the building and the land, and one for $100,000 plus $10,000 GST for the chattels, equipment and fittings. Mr Fraser gave evidence that the respondent subsequently told him that he had paid the sum of $110,000 for the goods and chattels, financed by increasing his overdraft. No such payment had been made but the respondent obtained reimbursement. A cheque for $110,000 dated 1 February 2005 was drawn on the bank account of RKN Investments Pty Ltd in favour of Let's Fix It as trustee for the Ohl Family Trust. That cheque was signed by Mr Fraser and the respondent, taken by the respondent, and evidently presented and honoured. The verdict of the jury on count 1 indicates that they were satisfied beyond reasonable doubt that the respondent thereby committed the crime of dishonestly acquiring a financial advantage.
[3] The particulars of count 1 were stated in the indictment as follows:
'NORMAN EDWARD OHL at Hobart in Tasmania between the 1st day of July 2004 and the 22nd day of September 2006 by deception, to wit falsely represented to Kevin Fraser and Raj Nanda and/or RKN Investments Pty Ltd, the purchase price and terms of a contract for the sale of property and chattels situated at 27 South Arm Road, Rokeby dishonestly acquired for himself and/or Let's Fix It Pty Ltd and/or the Ohl Family Trust a financial advantage, namely the crediting of Let's Fix It Pty Ltd and/or the Ohl Family Trust the sum of $110,000.'
[4] The second charge concerned a proposal to purchase and develop a property in Chapel Street, Glenorchy. The respondent's tax accountant, Mr Demeyer, the respondent, and two other investors formed a syndicate to purchase and develop the property. The purchase price of the property, including chattels, was $1.42 million. The syndicate members agreed that they would purchase the property with mortgage finance from a bank; that Mr Demeyer would contribute $100,000; that another investor would contribute $100,000; and that a third investor would contribute $200,000. The respondent told the others that he had purchased the plant and equipment at the site for $210,000 under a separate contract. That was untrue. The syndicate members agreed to form a unit trust, named the Chapel Street Unit Trust, with a company named Chapel Industries Pty Ltd as its trustee, and that the respondent would receive a one third interest in the unit trust in return for his asserted contribution of $210,000. In addition, $90,000 from the funds of the syndicate was paid to the respondent, with the concurrence of the syndicate members, for work that he said he had done in obtaining tenants for the premises and attending to 'due diligence' requirements.
[5] The jury's verdict of guilty on count 2 relates to the respondent's acquisition of his units in the unit trust and the payment of $90,000. It indicates that they were
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satisfied beyond reasonable doubt that he committed the crime of dishonestly acquiring a financial advantage by obtaining both the units and the payment of $90,000. The particulars of that charge read as follows:
'NORMAN EDWARD OHL at Hobart in Tasmania between the 1st day of December 2004 and the 22nd day of August 2006 by deception, to wit falsely represented to Dean Demeyer and/or Chapel Industries Pty Ltd that he had purchased the goods and chattels at 77 Chapel Street, Glenorchy for $210,000, dishonestly acquired for himself and/or as a Director of Chapel Industries Pty Ltd and/or Let's Fix It Pty Ltd and/or the Ohl Family Trust, a 33% equity interest in the property situated at 77 Chapel Road, 10 Units in Chapel Street Unit Trust and agent's fees of $90,000'."
Count 1
23 Count 1 related to the purchase of property in Rokeby for $350,000. It is common ground that the prosecution case with respect to count 1 relied heavily on the evidence of Mr Kevin Fraser, a former business associate of the applicant. Mr Fraser having given evidence that the applicant falsely claimed he had paid $110,000 for goods and chattels in the property, at trial the applicant advanced a case that of the purchase price of $350,000, it was Mr Fraser's idea that the amount of $100,000 (plus $10,000 GST) be "notionally attributable" to the purchase of chattels. This case was put to Mr Fraser and denied. During cross-examination it was put to Mr Fraser that there was no advantage to the vendor in a split of this nature, but there was a potential tax advantage from the point of view of the purchaser.
24 There was no dispute at trial that the applicant received a cheque for $110,000.
25 With respect to count 1, the applicant does not suggest that, prior to the trial, the prosecution failed to disclose relevant material. The case put at trial for the applicant was in accordance with his instructions. This included cross-examination of Mr Fraser and counsel's address on behalf of the applicant. Further, the applicant's case with respect to count 1 was fully explained to the jury by the learned trial judge.
26 Having regard to the prosecution case and the applicant's instructions with respect to count 1, in my opinion it cannot reasonably be said that the conduct of counsel was incompetent. Counsel for the applicant in this Court did not suggest otherwise with respect to count 1.
27 Considered in isolation from count 2, there was ample evidence upon which to base a conviction
with respect to count 1.
Count 2
28 Mr Dean Demeyer was the applicant's tax accountant. He gave evidence that he became involved in a syndicate with the applicant for the purchase and development of a property at Chapel Street, Glenorchy. The essence of the prosecution case with respect to count 2 was the assertion by Mr Demeyer that, in respect of the property to be purchased, including chattels, the applicant said he had purchased the plant and equipment for $210,000 under a separate contract. This led to the formation of a unit trust in which the applicant received a one-third interest in return for his contribution of $210,000. In addition, $90,000 was paid to the applicant for work he said he had undertaken in obtaining tenants for the premises and attending to due diligence requirements.
29 At trial, counsel for the applicant challenged Mr Demeyer and specifically put the essence of
the applicant's case:
"Q:
And I want to suggest that it was you who suggested that the arrangement be put in place that he would notionally swap the chattels for an equity in the property?
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A: That's incorrect. Q: Because by that means the deal would go through and you and the other
investors would be part of the project?A: That's not correct, that's not the case. Q: Because the deal wouldn't have occurred otherwise would it? A: No. Q: A deal which concerned your own financial interests? A: It had the potential to affect my financial interests."
30 An investor in the syndicate, Mr Todd Burrows, gave evidence that the applicant said he had purchased the chattels separately for $200,000. According to Mr Burrows, the applicant advised that the chattels were worth $210,000 and "he would put that in as his equity at $200,000". Mr Burrows said he and Mr Demeyer accepted on face value that the applicant had purchased the chattels separately.
31 In addition, Mr Burrows said a number of months later "we sort of started to sort of ask for a copy" of the contract relating to the chattels and the applicant advised that he would provide a copy of the contract. Subsequently when the "complete original contract for sale" was seen, according to Mr Burrows he and others believed the chattels were included in the contract and had not been sold separately. They asked the applicant to provide a copy of the contract for the purchase of the chattels, and wrote to the applicant asking him to provide the evidence, but the applicant, "didn't show up".
32 Mr Burrows gave the following evidence about a subsequent meeting in which the topic was
raised:
"Q: And can you recall what date that happened? A: It was in August sometime, in 2006. Q: And were all the Directors present at the meeting? A: Yes. Q: So, yourself, Mr Fagan, Mr Demeyer and Mr Ohl? A: Yes. Q: And did Mr Ohl, at that meeting, produce any confirmation of this prior
purchase of the $210,000 of plant and equipment he was claiming?A: No Q: What did he, if anything, have to say in relation to the $210,000 purchase? A: Well, at that time Norman advised that the $210,000 purchase was, was, basically there was no contract provided for the $210,000 and he advised that that was his, effectively, fee for putting the development or the deal together."
33 During cross-examination it was put to Mr Burrows that he and other members of the syndicate did not care very much about the chattels. Counsel asked if Mr Demeyer had suggested that the $200,000 attributable to chattels "was really a price that you were paying to get into the project". Mr Burrows replied that it was always his understanding that the chattels were bought on a separate contract and it was the applicant's contribution towards the property. Subsequently counsel returned to that issue:
"Q:
Now I've suggested to you already that it was Mr Demeyer who put to you, or, yes, put it to you on the basis that the $200,000 that [the applicant] was after was really the price of getting on-board the project?
A: Yes, you have put that to me previously. Q: But you would say no, that's not the case? 9 No 1/2021
A: I, yep, my understanding was that the $200,000 of chattels was [the applicant's] contribution to the deal to becoming part of the Chattel Industrial Proprietary Limited."
34 Counsel for the applicant did not address any specific questions to the meeting described by Mr Burrows at which, according to him, the applicant spoke about paying for the chattels and the absence of a separate contract.
35 Mr Joseph Fagan became part of the syndicate and gave evidence of first meeting the applicant in Mr Demeyer's Hobart office in about February 2005. The purpose of the meeting was to discuss putting together a syndicate to purchase property in Chapel Street. As to investing, according to Mr Fagan, it was discussed that he, Mr Demeyer and Mr Burrows would each provide $200,000, and the applicant "was providing the chattels that he purchased prior to that date". Mr Fagan said the applicant showed him the chattels "which consisted of pallet-racking and compressors, and different other plant and equipment" and he, Mr Fagan, thought that $210,000 "seemed reasonable".
36 Mr Fagan said that subsequently the applicant was supposed to show the investors confirmation of the contract for the chattels, but he failed to do so. At the particular meeting when the applicant failed to provide the contract, there was also discussion about an invoice in respect of which, eventually, the applicant "just threw his hands in the air and walked out the room".
37 During cross-examination Mr Fagan was asked about his attitude and whether it mattered if there was not a contract with respect to the chattels. Mr Fagan maintained that they were expecting to see the contract. He agreed, however, that ultimately the syndicate of investors ended up with the chattels.
38 It is apparent from the transcript of evidence that the essence of the applicant's case with respect to count 2 was put to the witnesses, particularly Mr Demeyer.
39 In his closing address to the jury, counsel for the applicant did not have the advantage of evidence from the applicant and was left to question the reliability of the evidence of Mr Demeyer and Mr Burrows by pointing out matters he described as "odd features" which might cause the jury to have a doubt about their evidence. Counsel suggested that there was a taxation advantage in having a value attributed to the chattels. By implication, counsel invited the jury to entertain a doubt about the evidence that the applicant had claimed he had purchased plant and equipment for $210,000 under a separate contract. In his address, counsel did not challenge the authenticity of any document.
40 In summing up, the trial judge reminded the jury of the defence case that the applicant denied making the relevant representations. Her Honour pointed out there was a suggestion in the evidence of Mr Burrows that the applicant "suggested his equity in the project was a consequence of a fee he was to receive for his work on the project apart from the $90,000 facilitation fee that was actually paid to him". In addition, her Honour reminded the jury of counsel's submission that there were reasons why Mr Demeyer and others could not have been deceived even if false representations had been made because Mr Demeyer wanted the project to go ahead and really did not care about the details.
Documents
41 In respect of both counts the prosecution relied on a number of documents. As to count 1, to the extent that documents reflected a separate amount of $100,000 for chattels and equipment, Mr Fraser gave evidence that this occurred because the applicant had told him and others that the vendors wanted the contract split in two, namely, $250,000 for the building and land, and $100,000 for chattels, equipment etc.
42 The documents of particular relevance to count 2 begin with exhibit P9, a document described by Mr Demeyer as setting out a "financial model" for the proposed investment in the Chapel Street
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property which the applicant presented to Mr Demeyer on 14 January 2005. In cross-examination the
applicant's case with respect to exhibit P9 was, in substance, put to Mr Demeyer:
"Q: If I suggested that you were aware that Mr Fraser was the author of it, what
would your response be?A: I'd say that was rubbish. Q: And why would you say rubbish? A: Because this document was taken back to [the applicant's] office, some corrections were made and then he emailed it to me as per the evidence before. Q: Why does that make the proposition that Mr Fraser was the initial author of it
'rubbish'?A: Because this, the alterations on the document were minor and it was emailed back to me by [the applicant]. At no stage did [the applicant] say that this document had been prepared by anyone else other than himself. Q: Well, it was just silence as to it, wasn't there? A: Well, I didn't ask the question. It was obvious to me who'd prepared it."
43 The financial model which Mr Demeyer said was provided by the applicant was headed "Budget
Acquisition – 77 Chapel Street". Under the heading of Costs was a line "purchase of Plant and Equip (Completed) – $210,000." Mr Demeyer said this line represented "the plant and equipment at the
freezer-works that [the applicant] had told us that he'd completed previously by separate contract".
44 The financial model also contained a line relating to due diligence which had been altered from $87,000 to $90,000. Mr Demeyer explained that this line reflected the due diligence fee to be paid to the applicant.
45 The financial model of 14 January 2005 was followed by an email from the applicant dated 24 January 2005 which was tendered without objection as Exhibit P10. Accompanying the email was an amended version of the financial model (Exhibit P9). The amended version continued to contain the
line "Purchase of Plant and Equip (Completed) – $210,000." In the email of 24 January 2005, the
applicant referred to the document as "copy of the property purchase model". It also contained the line
relating to $90,000 for due diligence.46 For the trial, the applicant gave instructions to his counsel that Mr Demeyer asked him to create the amended version of the financial model and email it to him, including a claim of $3000 for Mr Demeyer. According to the applicant's instructions, Mr Demeyer asked him to make a "definitive list for the depreciation schedule and to note that this was swapped for equity". The applicant instructed his counsel that Mr Demeyer told him "what to put in the list and how to phrase it in my bookwork correct".
47 The next document of significance was an email from the applicant to Mr Demeyer dated 2 September 2005. This document was tendered without objection as Exhibit P11. According to Mr Demeyer, the applicant's internal book-keeper had asked him to assist her in preparing a balance sheet in the Quick Books accounting system being used by the applicant. While he was assisting her, Mr Demeyer rang the applicant and asked if he could provide more specific details in order to particularise the plant and equipment. According to Mr Demeyer, he received the email Exhibit P11 in response to that request. The email spoke of the items being "swapped for equity to the value of $210,000" and set out a list of chattels:
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"Storage Tasmania
From: Storage Tasmania [[email protected]] Sent. Friday, 2 September 2005 3:04 PM To: Alison & Dean Demeyer ([email protected]) Subject: Plant and equip supplied by Ohl Family trust
Hi Dean., in Chapel Industrial Pty Ltd
1 x Brook Compton CP 165 KW Mycom Screw Compressor 1 x Control Panel and Management System for Screw Compressor 2 x Aquarius Water quality treatment systems Model AT522 2 x Cooling towers incl. water circulation system 360 x Pallet racking rails 148 x 4.5 metre uprights and braces 1 x Ammonia storage tank and circulation system 8 x Evaporator Units incl. fans and heater systems 360 lt electric hot water system·
25 lt electric hot water system
All floor coverings as inspected
All light fittings as inspectedAll curtain blinds and drapes as inspected
Regards Norman Ohl 0411571655
nohl@bfgpcmdnetau
2/01/2007" [My emphasis.]
48 The next document in the sequence is a facsimile communication from Mr Demeyer to the applicant's assistant dated 12 April 2006 (Exhibit P12). Mr Demeyer explained that as a tax agent he was required to prepare a statutory financial statement and income tax returns, and in that preparation he preferred to sight third-party documents to ensure the balance sheet is accurate. In that context he needed to see the contract pursuant to which the applicant purchased the plant and equipment. Mr Demeyer sent to the applicant's assistant (A) a fax communication dated 12 April 2006 stating:
"Hi [A]
We are completing the 30 June 2005 financial statements and the March 2006 Business
Activity Statement for Chapel.
As part of that process we are reconciling the GST account for both periods.
Can you please send me copies of the following tax invoices?
1 Norman bought $210,000 of plant and equipment from the previous owners, and the GST on that purchase has not been claimed, and there is no invoice in the files.
2 Let's Fix It charged Chapel in January 2006 $110,000 and there is no invoice in the files.
Thank [A]"
49 In response, by return fax Mr Demeyer received a tax invoice from "LET'S FIX IT", which was the applicant's family trust trading name. The invoice was dated 14 February 2005 and addressed to Chapel Industrial Pty Ltd. It was tendered without objection as Exhibit P13:
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50 Exhibit P13 was tendered, as were all other documents, without objection. In his statutory declaration, Mr Demeyer said the number on the invoice made it clear that the invoice had not been filled out on 14 February 2005. However, Mr Demeyer did not give that evidence at trial. During his evidence, Mr Demeyer said the invoice did not "settle things" for him, and he continued endeavours to find out if a contract existed. A formal meeting of Directors took place, during which it was put to the applicant that if he possessed a second contract for the chattels, he should produce it and then he would be provided with his equity. According to Mr Demeyer, the applicant left the meeting saying he would produce it at another meeting scheduled for a month later. At the later meeting the applicant did not produce the contract and "threw his hands in the air and told us we could all to get stuffed and left the meeting".
51 Mr Demeyer was asked whether the applicant provided an alternative basis for attaining a $210,000 interest in the investment. In Mr Demeyer's words, "all of a sudden it was valuable consideration for transferring the contract from his name into the Chapel Industrial name". This explanation was new to Mr Demeyer.
52 Subsequently a share certificate for two ordinary shares was issued to the applicant. However, the applicant signed a resignation as a Director of Chapel Industrial Pty Ltd and his shareholding was removed.
53 As mentioned earlier in these reasons, the applicant was paid $90,000 for performing due diligence. A tax invoice dated 24 March 2005, which became Exhibit P16, related to that fee.
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According to Mr Demeyer, the invoice came from the applicant through Let's Fix It as trustee for the
Ohl Family Trust. Exhibit P16 was as follows:
54 The only document about which Mr Demeyer was cross-examined was the financial model Exhibit P9. Counsel asked what Mr Demeyer's response would be if it was suggested that Mr Fraser was the author of P9, to which he replied "rubbish".
55 The documentary trail supported the oral evidence and resulted in a strong prosecution case.
Proposed Grounds 1–3
56 Grounds 1–3 all overlap and, in essence, concern the applicant's central contention that, prior
to trial, the Crown failed to make "full and proper" disclosure of relevant material. The applicant submits that as a consequence of the failure, the applicant was deprived of evidence capable of supporting his defence that Mr Fraser and Mr Demeyer were the architects of the schemes. In this way, argued the applicant, a miscarriage of justice was caused by the failure of the Crown to comply with its obligation to make "full and proper" discovery.
57 In this Court, senior counsel for the applicant, who was not counsel at trial, centred his argument on the failure of the Crown to disclose the contents of a CD containing material downloaded from the hard-drive of the applicant's computer. In particular, counsel concentrated upon the absence of Exhibits P13 and P16 from that CD. However, written submissions were filed in support of each ground and it is appropriate first to refer to those written submissions.
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58 As to ground 1 and the critical contention that the applicant was, by reason of the Crown's failure, deprived of access to "cogent evidence", in summary the main points advanced in the written submissions were as follows:
The hard-drive containing the applicant's records and the Seagate hard-drive were stolen in about
July 2006. The theft was reported to the police. Somehow Mr Fraser came into possession of the stolen Seagate hard-drive. Police copied the data on the Seagate hard-drive and transferred that copy to the police Forensic
Server. At trial the allegation, either express or implied, was that exhibits tendered at trial were recovered
from that copy. Neither a copy nor the original of the hard-drive was provided to the defence prior to trial. The CD rom is in such a format that the original creation date of many documents cannot be ascertained, but "what is clear is that the original hard-drive copy was brought into existence via Kevin Fraser after Mr Ohl left the business and after the hard-drive was stolen." Files created in a folder "Files for Kevin" were created four months after the applicant left the business and after reporting the theft of the hard-drive to police. These files "appear to indicate corruption of [the applicant's] records by another party". The unreliability of the original hard-drive which police copied onto the police Forensic Server is indicated through the absence of "RKN QuickBooks files together with Mr Fraser's sworn statement that RKN records were on the Seagate hard-drive when Mr Ohl left the business". An expert report by Dr Schatz demonstrates that "the financial model spreadsheet used at trial is
not the same as attachments to emails in the Outlook files on the CD." Exhibits P13 and P16 are not on the CD. "Tasmania Police claimed that the two invoices were downloaded from the 'original hard-drive', [but] this claim cannot hold as those invoices should have been found in a QuickBooks documents file or at the very least in a QuickBooks document folder."[2] The "formatting of the two invoices indicate that a difference QuickBooks program was used
independently of the QuickBooks program Mr Ohl used".[3] "If proper disclosure had been made and the defence were able to show that this document [Exhibit
P13] was a forgery, it would cast considerable doubt on the evidence mounted against Mr Ohl."[2] There is no evidence to support this submission. Copies were tendered at trial and no questions were asked as to the
[3] The applicant did not need the CD to make this observation, and did not instruct counsel that the formatting was different or that any significance should be attached to the difference.
59 As counsel for the Director of Public Prosecutions (DPP) observed, other than the absence of Exhibits P13 and P16 from the downloaded CD, it is difficult to understand what evidence is said to be the "cogent evidence" not available at trial.
60 Similarly, the written submissions in support of ground 2 fail to identify the "exculpatory evidence" which was not made available to the applicant prior to trial. Reference is made to a report by Dr Bradley Shatz, a Forensic Computer Scientist who examined the CD approximately four years after the trial and provided a report dated 27 April 2018. Dr Shatz commented on files created on 4 October 2006, and modified after the applicant had relinquished to Mr Fraser possession of premises formerly
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occupied by both of them. Reference is made by Dr Shatz to changes to email material found on the
CD, caused by emails being exported from their original storage to their current format.61 None of this evidence is exculpatory. Further, to the extent that the submission suggests that Dr Shatz requires other material "to discover possible exculpatory emails", the submission amounts to no more than speculation based on a hope rather than a realistic assessment of the circumstances. Given the applicant's case that to the extent that he wrote emails or prepared documents that appear to support the prosecution case, those emails and documents were written at the instigation of Mr Fraser or Mr Demeyer, it is highly unlikely that the hard-drive would contain "exculpatory emails" of assistance to the applicant.
62 As to ground 3, the written submissions in support of this proposed ground refer to paragraphs of the applicant's affidavit sworn on 13 September 2016. The paragraphs to which the submission refers do not provide any support for the proposition that full and proper disclosure was not made prior to trial. In particular with respect to Exhibits P13 and P16, the submissions refer to pars 1-12 of the applicant's affidavit sworn 13 April 2018. Those paragraphs deal with differences between the invoices which the applicant says are obvious upon an examination of those invoices. Those differences have nothing to do with a failure to be provided with a list of material on the CD or to examine the CD.
Exhibits P13 and P16 – Forgeries
63 Returning to the essence of the applicant's case advanced in oral submissions before this Court, as discussed earlier in these reasons Mr Demeyer gave evidence that Exhibits P13 and P16 were provided to him by the applicant. In particular, it was the Crown case that Exhibit P13 was provided by the applicant in support of his fraudulent claim that he had paid $210,000 for chattels in the Chapel Street property.
64 Notwithstanding that Exhibits P13 and P16 were tendered at trial without objection, the applicant now contends that these documents were forged. The applicant submits that by reason of a failure of the prosecution to make proper discovery, the applicant was deprived of evidence supporting his case that Exhibits P13 and P16 were forged and, as a consequence, a miscarriage of justice has been caused with respect to both convictions.
65 During the investigation, police obtained a Seagate hard-drive from a computer provided by Mr Fraser. According to Mr Fraser, the computer had been left behind by the applicant when the applicant vacated premises that he and Mr Fraser had previously occupied. The contents of the hard- drive were copied and placed on a CD. Prior to the trial, the existence of the CD was disclosed to the applicant and his legal advisors, but the contents of the CD were not identified in the process of disclosure. Neither before, nor during the trial, did the applicant's legal representatives request that they be provided with a copy of the CD. Nor did they attempt to investigate the contents of the CD or the source of the documents relied upon by the prosecution.
66 Years after the trial when the applicant and his advisors gained access to the CD, it was discovered that neither P13 nor P16 were on the CD.[4] In other words, those documents were not on the hard-drive of the applicant's computer.
[4] As mentioned, the oral hearing on appeal was conducted on this (erroneous) basis.
67 It is the case for the applicant that if he had been aware that these documents were not on the CD or hard-drive, he would have been in a position to cross-examine the prosecution witnesses with a view to establishing that someone had forged those documents to bolster the case against the applicant. In this way, contended the applicant, he would have possessed a basis for adding weight to his challenge to the credibility of key prosecution witnesses.
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68 As to Exhibit P13, prior to the trial the applicant was provided with a statutory declaration given by Mr Demeyer on 3 June 2008. That declaration referred to the financial model provided by the
applicant (Exhibit P9) which included the line "purchase of Plant and Equip (Completed) – $210,000".
The declaration also referred to other documents, including the significant email from the applicant to Mr Demeyer dated 2 September 2005 in which the applicant listed the plant and equipment said to have been swapped for equity to the value of $210,000 in Chapel Industrial Pty Ltd.
69 Mr Demeyer's declaration referred to his facsimile communication of 12 April 2006 to the applicant's assistant requesting an invoice and to the invoice, Exhibit P13, provided by "return fax". In the declaration Mr Demeyer explained that although the invoice was dated 14 February 2005, it bore a fax time and date stamp of 12 April 2006. Further, he asserted in the declaration that the number on the invoice "made it clear that the invoice had not been filled out on 14 February 2005". Mr Demeyer stated that from the number, "it appeared that the invoice he faxed had just been completed".
70 In his declaration, Mr Demeyer made no mention of the invoice Exhibit P16. When counsel for the prosecution sought to tender the document during the evidence of Mr Demeyer, counsel for the applicant indicated he had not previously seen that document. Following an adjournment, however, counsel for the applicant stated there was no objection to the tender of the document.
71 Specifically as to disclosure of the CD, prior to the trial the applicant was provided with statutory declarations of Kevin James Clayton, a Forensic Services Officer with Tasmania Police, and Andrew Sice, an officer with Tasmania Police. According to Constable Clayton, in January 2008 he examined the Seagate 40GB hard-drive and copied the contents to an external hard-drive attached to a forensic laptop. The files were then transferred to the police Forensic Server. Constable Clayton's statement explained that in January 2012, he examined the data acquired from the hard-drive and copied the email application Microsoft Outlook email files to the Forensic Server, together with the financial files found in the QuickBooks software. Constable Clayton stated that he copied these files to a disc which he forwarded to Mr Sice for further analysis. Subsequently, at the request of Mr Sice, Constable Clayton conducted a further examination relating to two emails and produced a report concerning those emails to Mr Sice.
72 In a statement of 22 June 2012, Mr Sice explained that he examined the contents of the CD received from Constable Clayton. He printed off five emails which were marked as exhibits to his statement.
73 Prior to trial, therefore, both the applicant and his legal advisors were well aware of the prosecution case that Mr Fraser retained possession of the applicant's computer when the applicant vacated premises that he and Mr Fraser had previously occupied. Further, police had obtained from Mr Fraser the hard-drive from the applicant's computer and had not only examined the hard-drive, but had downloaded the contents onto a CD. Various documents were provided to the applicant and his legal advisors as part of the discovery process prior to trial, and it must have been obvious to the applicant that not all of the documents stored on the hard-drive had been provided to him. The applicant did not instruct counsel to obtain and examine the CD.
Instructions
74 In his affidavit of 13 September 2016, the applicant drew attention to an email of 20 August 2013 to his solicitor in which he referred to the police taking a copy of the hard-drive from the computer and wrote "I would think the contents of this would be relevant?". According to the applicant, after that email communication he "continued to plead" with his lawyers as to "the importance of the hard-drive material", but his lawyers "did not act on [his] concerns". The applicant also asserts that on "several occasions" prior to trial he raised with his solicitor and counsel that "the contents of this hard-drive would most likely contain critical evidence to prove my innocence".
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75 It is unclear how, prior to trial, the applicant thought that the hard-drive would contain "critical evidence" to prove his innocence. In addition, such a belief does not sit well with the applicant's detailed instructions to his counsel.
76 With the exception of Exhibit P16, in advance of the trial the applicant was provided with the statements of proposed witnesses, together with documents upon which the prosecution intended to rely. Instructions were sought from the applicant with respect to that material and he responded with notations on the statements, together with detailed written instructions which were cross-referenced to the statements. In addition, the applicant was provided with a letter from the DPP setting out particulars of the false representations upon which the prosecution relied.
77 Prior to the trial, the applicant provided detailed written instructions which, in substance, denied any false representations and asserted that everything was done in accordance with the suggestions of Mr Fraser and Mr Demeyer. In particular, the applicant gave instructions that financial models were created by Mr Fraser and modified by Mr Demeyer. The applicant instructed that he did not tell Mr Demeyer he had purchased the chattels. Rather, Mr Demeyer explained that the chattels would be swapped for his equity.
78 As to count 1, the applicant gave written instructions that at no time did he represent to Mr Fraser or Mr Nanda that he had paid the vendor $110,000 or that there was a separate contract. According to the applicant's written instructions, it was Mr Fraser who prepared a spreadsheet and suggested that $100,000 be attributed to the fit-out. Further, the cheque for $100,000 received by the applicant was to "repay the loan OFT had made to RKN which was the agreed fees OFT was entitled to as per our agreement".
79 In his affidavit in support of the current application, the applicant states that when he vacated the premises previously occupied with Mr Fraser, he kept possession of his computer. According to the applicant, the computer was subsequently stolen from premises occupied by the applicant and A, a theft that was reported to the police. Prior to trial, therefore, knowing that police obtained the hard-drive from Mr Fraser, the applicant believed that Mr Fraser either stole the computer or received it as stolen property.
80 Notwithstanding that knowledge, the applicant did not give any instructions to his legal team concerning the theft of a computer or his belief that Mr Fraser either stole the computer or received it as stolen property.
81 Further, alongside the assertion in Mr Fraser's statement that the computer and other equipment had remained on the premises when the applicant vacated them, in giving written instructions to counsel the applicant wrote the letter "N" for no comment. By way of contrast, the applicant wrote "D" alongside the very next paragraph in Mr Fraser's statement indicating that he denied the statement by Mr Fraser that business and personal files relating to the applicant were found on computers from the front and rear offices of the premises vacated by the applicant.
82 For reasons best known to the applicant, therefore, the applicant chose not to challenge the statement by Mr Fraser that the applicant's computer and other equipment remained on the premises after the applicant vacated them. In addition he chose not to instruct his counsel about the subsequent theft of the computer.
83 In support of the application for an extension of time, the applicant gave evidence before Marshall AJ.. He agreed that in his instructions he did not suggest that Mr Fraser had "adulterated, forged or done anything" in relation to various documents.
84 As to count 2, Mr Demeyer's declaration included assertions that the applicant provided the initial and subsequent financial models containing the line "purchase of plant and equipment
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(completed) $210,000". Further, according to Mr Demeyer's statement, the applicant advised that he had purchased the chattels under a separate contract for $210,000 and would contribute those items as a swap for his equity in the project.
85 As discussed, the applicant's written instructions stated that financial models were created by Mr Fraser and Mr Demeyer, and he did not say he had purchased the chattels. According to the applicant's specific written instructions, it was Mr Demeyer who explained that the chattels would be swapped for the applicant obtaining equity. Further, it was Mr Demeyer who asked the applicant to make the list of chattels for a depreciation schedule and to note that this was swapped for equity.
86 With respect to the invoice which became Exhibit P13, an invoice on the applicant's letterhead containing a list of items under the statement "purchase of the following by Ohl Family Trust", Mr Demeyer stated in his declaration that he sent a fax to the applicant's assistant requesting an invoice for the equipment the applicant had purchased. Alongside that part of Mr Demeyer's statement, the applicant inserted the letter "N", indicating that he did not have any comment to make about that assertion.
87 Mr Demeyer's statement continued with reference to the invoice which became Exhibit P13:
"On 12 April 2006 I received a copy of a tax invoice on return fax. The invoice is on Let's Fix It letterhead. The invoice lists the items of plant and equipment purchased by the Ohl Family Trust. The total cost of the purchase is recorded as $231,000, which included $21,000 GST. The invoice was addressed to Chapel Industries P/L and dated 14 February 2005. The invoice bears a fax time and date stamp of 12 April 06 5.05pm. A copy of the invoice is attached and marked annexure F.
All of the Let's Fix It invoices provided by [the applicant] are numbered. The number on the invoice made it clear that the invoice had not been filled out on 14 February 2005. From the number it appeared that the invoice he faxed had just been completed."
88 Alongside the first paragraph concerning receipt of the invoice by return fax, the applicant inserted the letter "N" indicating no comment. Alongside the second paragraph concerning the numbering of the invoice, the applicant inserted the letter "Q" and cross-referenced this paragraph to paragraph 94 of his instructions which stated:
"Dean would have instructed duty to created this invoice at this time but to date it the
14th seven 2005."
89 Presumably the reference to "duty" should be to the applicant's assistant, A, who said in a statement that she did not prepare that invoice. In addition, the invoice was dated 14 February 2005, not 14 July.
90 The applicant was cross-examined about Exhibit P13 in his evidence before Marshall AJ. He agreed that he appreciated before the trial that Mr Demeyer was asserting that the invoice Exhibit P13 was sent to Mr Demeyer in April 2006. The applicant agreed he did not give instructions that the document was a forgery or adulterated, and that it was his defence that Mr Demeyer had "created a false-hood". It was Mr Demeyer who came up with the idea and the document represented that falsehood.
91 There was no mention of Exhibit P16 in Mr Demeyer's statutory declaration. As discussed, at the time it was tendered, counsel for the applicant indicated that he had not previously seen the document. After an adjournment, it was tendered by consent. When the applicant gave evidence before Marshall AJ, he agreed that an invoice for $90,000 was sent, but not the particular document Exhibit P16. The applicant said he did not remember giving instructions during an adjournment, and claimed that he would have pointed out to his counsel that the invoice was from a "QuickBooks form and not an invoice that was created by me". In re-examination the applicant gave the following evidence:
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"Q: You saw it [P16] for the first time in Court? A: Q: Did you say anything to Mr Barker about that document? A: Mr Barker asked me what the notation on the top of it was. And I said I – it looks like Demeyer's initial, the 'D', and wanted me to comment on the notations made on – written in the body of the tax invoice. Q: Right. Was anything discussed about the dating of the document? A: Well, the document wasn't an invoice that I would have produced because the
dating is an incorrect format.Q: Did you mention that to Mr Barker at the time? A: Yes.
Q: And what did he say about that? A: He said, 'It's probably been produced by somebody else, but I don't think we'd
better raise it, I don't want to complicate matters'."
92 In summary, therefore, at trial the applicant's position and relevant knowledge were as follows:
(i) The applicant was in possession of all documents, except Exhibit P16.
(ii) The applicant provided detailed written instructions that:
He did not make any false representations. The ideas for splitting the purchase amounts came from Mr Fraser and Mr Demeyer. Documents either originated from Mr Fraser or Mr Demeyer, or the applicant prepared
them to reflect arrangements put in place by those persons.(iii) As to Exhibit P13, the applicant was aware of Mr Demeyer's statement that, by fax dated 12 April 2006, he requested an invoice and Exhibit P13, dated 14 February 2005, was provided by return fax.
(iv) The applicant was aware that his assistant had given a statement that she did not prepare Exhibit P13.
(v) The applicant was aware that, according to Mr Demeyer, the number on the invoice indicated it had not been prepared in February 2005, and appeared to have been prepared at about the time it was sent to Mr Demeyer in April 2006.
(vi) In other words, the applicant was aware that on the Crown case, invoice Exhibit P13 was not a genuine invoice, and had been created in response to a request by Mr Demeyer for a tax invoice relating to the amount of $210,000 which the applicant claimed he had paid for chattels.
(vii) In the face of that Crown case, the applicant gave written instructions that:
It was Mr Demeyer who suggested that the chattels be swapped for the applicant obtaining equity, and it was Mr Demeyer who asked the applicant to make a list of chattels for a depreciation schedule.
The applicant had no comment to make about Mr Demeyer's assertion that by fax dated
12 April 2006 he requested an invoice. The applicant had no comment to make concerning Mr Demeyer's assertion that he received
the invoice Exhibit P13 by return fax.
With respect to the invoice Exhibit P13, aware that his assistant said she did not prepare the invoice, the applicant gave written instructions that Mr Demeyer would have instructed the applicant's assistant to create the invoice, and backdate it.
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(viii) The applicant did not give instructions that Exhibit P13, or any other document, was a "forgery".
(ix) The documents tendered at trial were not original documents, and no evidence was given as to the source of each particular document. There was no evidence that the prosecution had sourced any document from the hard-drive/CD.
(x) The applicant did not give instructions to object to any document.
(xi) With respect to Exhibit P16, after counsel took instructions from the applicant during an adjournment, Exhibit P16 was tendered without objection.
Discussion
93 Against this background, it is clear that the applicant chose to present a case at trial based on his instructions that there was no fraud because it was Mr Fraser and Mr Demeyer who proposed the arrangement whereby separate amounts were created for the purchases of chattels and equipment, and documents reflecting those arrangements were either created by Mr Fraser and Mr Demeyer, or by the applicant on their instructions. Plainly there was no impediment to the applicant giving instructions that documents were not created by him, or were forged in some way, and there was no impediment to the applicant giving instructions to object to the use of particular documents. However, on the case presented by the applicant, there was no occasion to object to the use of any of the documents upon which the prosecution relied.
94 Significantly for present purposes, the applicant does not contend that relevant documents have now been discovered which were not available at the trial. The applicant's legal advisors received the CD on 30 November 2017, sent it to Dr Shatz, and returned it on about 5 May 2018. Notwithstanding an examination of the CD by Dr Shatz in the presence of the applicant, no document from the CD has been identified as relevant to the issues at trial.
95 Proposed ground 1 is a complaint that "cogent evidence" has now become available which was not available at the time of the trial and was not discoverable by reasonable means at that time. Such "cogent evidence" is not additional documentary or oral evidence that was not available at the trial. In substance, it is the absence of Exhibits P13 and P16 from the hard-drive/CD which the applicant contends is the "cogent evidence" not available at trial.
96 The principles governing the approach to an appeal based upon the discovery of additional evidence after a trial are not in doubt. The relevant principles were discussed by Kirby J in R v Abou- Chabake [2004] NSWCCA 356, 149 A Crim R 417. In a judgment with which Mason P and Levine J agreed, his Honour summarised the principles at [63]:
"[63] The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:
First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.
Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512).
Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis
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of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301).
Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 398/399).
Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
· Is the evidence fresh? ·
If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or 'plausible' (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)?
·
If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302.
Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)."
97 The application for leave to appeal seeks an extension of time within which the application for leave to appeal may be made, together with orders granting leave to appeal and quashing the conviction. The applicant contends that the evidence of the absence of P13 and P16 from the hard-drive/CD was not "constructively available" as it could not have been discovered by the exercise of due diligence. This contention does not sit well with the submission that if counsel had acted diligently and competently, counsel would have examined the contents of the CD. Alternatively, even if the evidence is "new" rather than "fresh", the applicant submits that a miscarriage of justice occurred and leave to appeal should be granted.
98 In my opinion, the applicant's case in this respect faces insurmountable difficulties:
The applicant was aware of the prosecution evidence from Mr Fraser that he retained possession of the applicant's computer when the applicant vacated premises formerly occupied with Mr Fraser. In addition, the applicant was aware that Mr Fraser provided the hard-drive from the computer to police.
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The applicant chose not to instruct his counsel about the theft of the computer and his belief that
either Mr Fraser stole the computer or received the computer as stolen property. The applicant was aware that the contents of the hard-drive had been downloaded by police onto a CD. The process followed in the downloading of the material was known to the applicant, together with the explanation by a police officer as to his examination of the contents of the CD and printing off five emails. Prior to the trial, the applicant was aware that the prosecution was relying upon Exhibit P13 as
evidence supporting Mr Demeyer. Prior to the trial, the applicant was aware that, on the prosecution case based on the evidence of Mr Demeyer, Exhibit P13 was not a genuine invoice. It had been created in April 2006 and backdated to February 2005. Knowing that the CD contained material downloaded from the computer hard-drive, and knowing
that the prosecution relied upon Exhibit P13, the applicant chose to instruct counsel that:(i) documents either originated from Mr Fraser or Mr Demeyer, or the applicant prepared them to reflect arrangements put in place by those persons, and
(ii) Mr Demeyer would have instructed the applicant's assistant to create Exhibit P13 and backdate it.
The applicant knew that the contents of the hard-drive could be ascertained by an examination of the CD. The applicant's written instructions to counsel did not include an assertion or implication that an examination of the CD might produce material relevant to, and supportive of, the applicant's case that the arrangements were put in place by Mr Fraser and Mr Demeyer. The applicant chose not to instruct his counsel that Exhibit P13, or any other document, was a
forgery.99 Evidence of the contents of the CD, and in particular the absence of Exhibits P13 and P16 from the CD, was "constructively available". However, given the applicant's instructions, it is not surprising that neither the applicant nor counsel sought to examine the CD. It was highly unlikely that an examination of the CD would produce any material supportive of the applicant's case at trial.[5]
[5] And the subsequent examination by Dr Schatz failed to reveal any such material.
100 Allied with an assessment of the availability of the evidence through the exercise of due diligence is the question whether the Crown failed to comply with its obligation to make full and proper disclosure. In my opinion, the answer to that question is a firm negative.
101 As discussed, the Crown made full disclosure of the existence of the CD and the examination of the contents of the CD by a detective. This is not a case in which it is said the Crown discovered a relevant document during the examination of the CD, but failed to disclose the existence of that document. This is a case based on the proposition that the Crown should have identified and disclosed the entire contents of the CD, thereby alerting the applicant to the fact that neither of Exhibits P13 and P16 were on the CD. On the Crown case, Exhibit P13 was not a genuine invoice and had been created by the applicant, and backdated, in response to Mr Demeyer's insistence that an invoice be provided. In these circumstances, from the Crown perspective, it would not be surprising that Exhibit P13 would not be on the computer regularly used by the applicant in the course of his business and personal affairs.
102 In my opinion, the complaint that the Crown failed to make full and proper disclosure is devoid
of merit.
103 Regardless of the question whether the absence of Exhibits P13 and P16 from the hard-drive/CD is "new" or "fresh" evidence, and of whether the Crown failed to make full and proper disclosure, the
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critical question is whether the absence of evidence that Exhibits P13 and P16 were on the computer hard-drive has resulted in a miscarriage of justice. In my opinion, this question must also be answered in the negative.
104 At best, evidence that Exhibit P13 was not on the computer hard-drive was of marginal relevance. In my opinion, had the absence of P13 been aired in the trial, it would not have assisted the applicant. Rather, it would have provided support for the prosecution case that, because Mr Demeyer was insisting on provision of an invoice, the applicant hurriedly created a false invoice and did so in a manner which avoided using his regular computer. The absence of P13 did not provide any support for the applicant's instructions that Mr Demeyer would have instructed the applicant's assistant to create the invoice and backdate it.
105 The applicant now seeks to advance a case that the absence of P13 could have been used to support a claim that Mr Demeyer forged Exhibit P13. As discussed, no such instructions were given to counsel. Further, given the documentary trail and circumstances in which Exhibit P13 came into existence, in my opinion, the absence of P13 would not have provided any support for a case that Mr Demeyer (or Mr Fraser) forged the invoice.
106 As to Exhibit P16, in my opinion, such evidence would not have provided any support for the applicant's case, regardless of whether it was a case as run at the trial or a different case based on claims that Mr Demeyer and Mr Fraser forged documents. The applicant admitted in evidence that he sent an invoice for the due diligence fee of $90,000, but said it was not Exhibit P16. There is no suggestion that the invoice the applicant claims he sent to Mr Demeyer is on the CD. There was no dispute that agreement was reached for payment of the due diligence fee to the applicant. In these circumstances there was no logical reason why Mr Demeyer would have fabricated Exhibit P16. On the other hand, for his own purposes, the applicant might have preferred not to record this particular transaction on his computer. Ultimately, in my view, evidence concerning the absence of Exhibit P16 could not have been used with any success in an attempt to attack the credibility of Mr Demeyer or Mr Fraser.
107 For these reasons, in my opinion, the applicant's case based on "new" or "fresh" evidence, and the conduct of the Crown, is without merit.
Ground 4
"The applicant's trial miscarried due to the incompetence of his counsel who;
(a) failed to abide by instructions provided by the applicant, and (b) failed to understand the appropriate elements [of] the offence, relevant statute provisions and relevant case law."
108 The written submissions filed on behalf of the applicant in this Court assert that this proposed ground can be dealt with by reference to specific paragraphs of the applicant's affidavit sworn on 13 September 2016. The first group of paragraphs refer again to the failure of police to provide the CD and an email from the applicant to his counsel referring to the copy of the hard-drive and his statement "I would think the contents of this would be relevant?" The applicant's affidavit then states:
"[87] I continued to plead with my lawyers as to the importance of the hard-drive
material, however my lawyers did not act on my concerns."
109 The second section from the affidavit identified in the written submissions concerns the
following paragraphs:
"[96] All documents that were presented at Court at my trial as provided by the
prosecution were not original documents.24 No 1/2021
[97] Neither my solicitor nor my barrister before or at my trial had raised this anomaly."
110 The third section of the applicant's affidavit upon which reliance is placed involves approximately 42 paragraphs, many of which relate to the history of the applicant's dealings with his legal advisors and points he says he requested be made at trial. None of these matters, either considered in isolation or in combination, provide a basis for an inference that counsel's conduct of the trial was incompetent. It is not unusual for clients to raise matters with counsel and make suggestions which are not taken up by counsel in the exercise of counsel's discretion.
111 The third section of paragraphs from the applicant's affidavit advanced in support of proposed ground 4 consist of extracts from the trial transcript. Those extracts do not support the contention that the conduct of counsel was incompetent.
112 The applicant faced a strong prosecution case. The oral evidence of a number of witnesses was supported by the documentation. The applicant gave specific instructions concerning statements by the prosecution witnesses and associated documents. It is apparent from the written instructions provided by the applicant that, throughout the trial, counsel acted in accordance with those instructions. This is confirmed by the affidavit of Mr Garth Stevens, a legal practitioner who acted as instructing solicitor and junior counsel at the trial. The affidavit of Mr Stevens was sworn on 30 October 2018 and his evidence was not challenged. As to conducting the trial in accordance with instructions, the following paragraphs of Mr Stevens' affidavit are pertinent:
"6 The trial for both counts on the indictment dated 21st January 2014 was conducted in accordance with the appellant's instructions, namely that there were no representation's made that operated to produce an advantage for the purposes of s 252A of the Code.
7 A number of documents were tendered during the trial in support of count 1 by
the State. We were not instructed to object to the tender of any documents tendered
through the prosecution witnesses.
8 The trial for the appellant was not conducted on the basis that the tendered documents had been authored or created by another person or persons.
9 The appellant's case at trial on this count, based on his instructions was that there was no deception arising. Either Mr Fraser had been the one to suggest the arrangement for their mutual benefit and/or had turned a blind eye to the falsity of the representation and that the documentation tendered was representative of the agreed or acquiesced arrangements.
10 The appellant's instructions were that he would not, and he in fact did not give
evidence on his trial.
11 A number of documents were tendered during the trial in support of count 2 by the State. We were not instructed to object to the tender of any documents tendered
through the prosecution witnesses.12 The appellant's case at trial on this count, based on his instructions was that there was no deception arising. Either Mr Demeyer had been the one to suggest an arrangement for their mutual benefit and/or had turned a blind eye to the falsity of the representation.
13 The appellant's instructions were that he would not, and he in fact did not, give evidence on his trial."
113 As to whether the applicant should give evidence, Mr Stevens said:
"23 I do recall a meeting at Court where the issue of the appellant giving evidence was raised. There was a particularly damning email which the appellant could not explain. The appellant provided instructions at that point that he would not give evidence."
25 No 1/2021
114 The issue of whether the applicant would give evidence at trial was the subject of evidence before Marshall AJ. The applicant gave the following evidence during cross-examination:
"Q: And now that the jury didn't buy that what you're doing some two years seven months and 20 days later is trying to come up with an explanation that you never gave at trial, isn't it?
A: I didn't give evidence at trial. Q: That's right. You could have. You – you – you instructed your counsel that you didn't want to, didn't you?
A: No. Q: You didn't instruct them that? A: No. Q: You instructed them you wanted to give evidence? A: Every morning I asked – Q: Every morning - ? A: - that I should evidence so my children can hear my side of the story. And every morning I was told the same –
Q: Every morning? A: Yep. Q: Every morning you told this counsel that you wanted to give evidence; they ignored you?
A: Yes. Q: Where do you say that in your affidavit in relation to - ? A: I mentioned it – I'd mentioned it to Garth Stevens, and he said if Barker had said if he wanted me to give evidence he would tell me to give evidence.
Q: Right. Well, I want to suggest to – well, you never – so, you're saying on oath that, 'I wanted to give evidence and I was denied that opportunity'?
A: I wasn't denied that opportunity. I was managed for sure is the way I look at it when I look back. And I've made those comments to Garth Stevens.
Q: I'm going to suggest to you that Mr Stevens has deposed – Mr Stevens had a conversation with you and that the – you were asked whether you – or discussed giving evidence and the – and you had a meeting where the issue of you giving evidence was
raised; there was a damning email that was shown to you you couldn't explain, and you
provided instructions that you would not give evidence?A: No, I never provided instructions that I would not give evidence. I was told I would be told if I should give evidence.
Q: Do you – there was a meeting at Court where the issue of you giving evidence was raised. Do you accept that?
A: There were meetings every morning with either Stevens or Barker where I raised – Q: There was a particular - ? A: - that I should give evidence. Q: Did you – are you saying on your oath that you never provided instructions that you would not give evidence?
A: I – I signed a piece of paper, at their request, late in the proceedings, I don't recall, that I wasn't going to give evidence –
Q: Thank you? 26 No 1/2021
A: - yes. Q: So, as a matter of fact you can read and write? A: Yes. Q: And that document would have said that, 'I've instructed my counsel'; words to this effect; 'that I will not be giving or adducing evidence on this trial'?
A: Possibly. I don't recall the exact wording of the note. Q: Mr Ohl, you're saying that you have been denied your right to tell your story to your kids. You would have remembered what you signed to sign that right away, wouldn't you?
A: On the 13th. Only – only the content – Q: Right - ? A: - what it's intention was, yeah. Q: So, you weren't denied the right to give evidence. You instructed your counsel that you weren't giving evidence, not only verbally but signed a document to that extent?
A: Never verbally. I signed a document to that extent. Q: Never verbally? A: No."
115 As is apparent, the evidence of the applicant was in direct conflict with the evidence of Mr Stevens concerning a damning email and the applicant providing instructions that he would not give evidence. The evidence of Mr Stevens was not challenged. Further, my reading of the applicant's evidence before Marshall AJ left me with the strong impression that the applicant was not a reliable witness. He repeatedly prevaricated, particularly when faced with awkward questions and difficulties associated with his version of events during the trial and prior to it.
116 As to the competence of counsel, during oral submissions in this Court, counsel for the applicant was asked why it was incompetent of counsel at trial to conduct the trial on the basis that there was no deception, as discussed in the affidavit of Mr Stevens. Counsel responded:
"We don't allege that that's a part of the incompetence of counsel. We say part of the incompetence of counsel is not to make sure the appropriate discovery before he commences trial."
117 In my opinion, that submission is without merit. The conduct of counsel must be considered in the light of the circumstances in which counsel was placed, particularly the instructions given by the applicant. Having regard to those instructions, from a point of view of counsel, the contents of the CD were highly unlikely to provide any material in support of the applicant's case that the arrangements were authored by Mr Fraser and Mr Demeyer. The contents were highly unlikely to contain anything which would support the applicant's case that Mr Demeyer would have instructed the applicant's assistant to create the invoice Exhibit P13 and backdate it. It is not surprising that counsel did not consider it necessary to explore the option of obtaining a copy of the CD and examining the material on it.
118 In view of the conclusion I have reached concerning the conduct of counsel, it is unnecessary to undertake a discussion of authorities concerning the duties of counsel and assessing the competence of counsel. It is sufficient to refer to the judgment of Gleeson CJ in R v Birks (1990) 19 NSWLR 677, in which his Honour made the following observations (at 683-685):
"In our system of criminal justice a trial of an accused person is concluded in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent
27 No 1/2021
the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.
As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Ronde lv Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth- y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) e R (Ct of Sess) 914, concerning the role of an advocate:
'… His legal rights is to conduct the cause without any regard to the
wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client's interests are thereby prejudiced.'
In Halsbury's Laws of England, 4th ed, vol 3(1), par 518 at 420, it is stated that:
'… a barrister is ordinarily instructed on the implied understanding that
he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly related to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order of judgment.'
(See also R v Edwards Underwood and Edwards (1848) 3 Cox CC 82; Hatch v Lewis (1861) 2 F&F 467; 175 ER 1145, Matthews v Munster (1887) 20 QBD 141 and Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24 per Isaacs J.)
There is an evident tension between those principles, on the one hand, and on the other hand, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice. It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice.
It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious.
…
1 A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2 As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client,
28 No 1/2021
and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3 However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
119 The principles enunciated by Gleeson CJ have been applied in Tasmania.[6]
[6] Philpott v The Queen [1996] TASSC 57; Blake v The Queen [1997] TASSC 30.
120 For the reasons discussed, in my opinion, there is no merit in proposed ground 4. In view of the detailed written instructions provided by the applicant, the decision of counsel not to obtain a copy of a CD and examine it is not surprising and is far removed from conduct that might reasonably be seen as incompetent. Similarly, counsel for the applicant conducted the trial in accordance with his written instructions, and the matters to which the applicant has referred do not support the contention that the conduct of counsel was incompetent.
121 For these reasons, my opinion, there is no merit in proposed ground 4.
Hard-drive/CD – Exhibits P13 and P16
122 Returning to the question whether the evidence is capable of raising a real possibility that Exhibits P13 and P16 were not on the CD/hard-drive, in the request to withdraw the concession and subsequent written submissions, the Crown advanced five essential propositions:
(i) Dr Shatz was not asked to search the CD for Exhibits P13 and P16. (ii) It was the practice of Dr Shatz to search only for Exhibits in respect of which he was instructed. (iii) The instructions provided to Dr Shatz by the applicant did not mention either of Exhibits P13 or P16. (iv) Dr Shatz did not open any Quickbooks file on the CD. (v) The statement of Constable Clayton indicates that, although the Quickbooks software was present, the software was not downloaded; only the financial files were downloaded and copied to the forensic server. 123 The Crown's propositions are supported by the evidence. It is noteworthy that in response, the applicant's written submissions did not challenge any of the five propositions.
124 On 22 January 2018, the applicant wrote to Dr Shatz providing "instructions for the scope of work to be carried out" in the examination of the CD. The letter includes reference to specific Exhibits, but not to Exhibits P13 and P16:
"Instruction for Schatz forensic.
RE: Verbatim CD computer forensics in operations support command
22/01/2018 regarding the examination of the supplied CD.
Dear Mr Shatz,
a Examine and analyse the forensic image of the following Quickbook files
and their attributes in the Report Directory on the CD, and comment on
1 the dates these files were created 29 No 1/2021
2 the file path in which these files was stored on the computer from which they were copied.
Files to be commented upon : Pitcairn Unit Trust.QBW, Chapel Industrial Pty Ltd.QBW, Let's Fix It Franchising Australia.QBW, Ohl Family Trust.QBW and Pitcairn Storage Services Pty Ltd.QBW.
b
Examine and analyse the forensic image of the disk for emails files that match the Emails in the list of exhibits File No: 195/2012 (Supplied in Hardcopy) specifically Exhidit (sic) P1, P2, P4, P5, P10 and P11 and comment on the attributes, providence and creation and modification dates.
c
Please comment if there are any difficulties in establishing file creation date due to format changes or other issues relating to the data transfer from original hard drive to CD.
d Provide a court-ready report containing the results of your analysis and
examination.
Please contact Greg Melick [telephone number] if you have any questions surrounding
the Scope, or require clarification prior to completing your report.
Kind Regards
Norman Ohl"
125 On 19 April 2018, the applicant again wrote to Dr Shatz requesting that Dr Shatz include in his report answers to a number of questions:
"Subject: Questions about the Disk Date: Thursday, 19 April 2018 at 4:35:33 pm Australian Eastern Standard Time From: Norman Ohl To: Bradley Schatz Hi Dr Schatz,
Can you please include in your report answers to the following questions.1 Does the disk contain the email application Microsoft Outlook?
2 Are the email files on the disk in a file format created using Microsoft Outlook?
3 If not, what program created the file in the form they are on the disk?
4 Is it possible to ascertain what software was used to create the email files on the disk?
5 If the emails were created in Microsoft Outlook and converted to a difference file format is it possible that element of the original formatting, such as images, font styles, signatures, attachments were lost or altered?
6 Are there any variations between the full file path of the Quickbook files on the disk and if so what are these variations?
7 Does the Disk contain the application Quickbooks or Quickbooks Program Software?
8 Can you establish and detail the creations date of following Quickbook files, Ohl Family Trust, Pitcairn Unit Trust, Chapel Industrial Pty Ltd and Pitcairn Storage Services Pty Ltd?
9 Can you establish and detail the date of last modification of the above mentioned Quickbook files?
10 Does the Disk contain a Quickbook file which has in its title the following letters in sequence 'RKN'?
11 Is it possible to ascertain the amount of data that was copied using the encase software from the source?
Kind regards Norman Ohl"
126 In his report of 27 April 2018, Dr Shatz attached the letters of instruction and summarised those instructions in the following terms:
30 No 1/2021
"Instructions
5 I have been instructed by Mr Ohl to prepare a report regarding the following:
a) What are the times and dates of creation of last modification of a number of Quickbooks files; b) Are there any difficulties in establishing the creation date of the exhibit emails? c) Does the disk contain the email application Microsoft Outlook? d) Are the email files on the disk in a file format created using Microsoft Outlook? e) If not, what program created the file in the form they are on the disk? f) Is it possible to ascertain what software was used to create the email files on the disk? g) If the emails were created in Microsoft Outlook and converted to a different file format is it possible that element of the original formatting, such as images, font styles, signatures, attachments were lost or altered? h) Are there any variations between the full file path of the Quickbook files on the disk and if so what are these variations? i) Does the Disk contain the application Quickbooks or Quickbooks Program Sotware?
j) Can you establish and detail the creations date of following Quickbook files, Ohl Family Trust, Pitcairn Unit Trust, Chapel Industrial Pty Ltd and Pitcairn Storage Services Pty Ltd? k) Can you establish and detail the date of last modification of the above mentioned Quickbooks files? l) Does the Disk cotain a Quickbook file which has in its title the following letters in sequence 'RKN'? m) Is it possible to ascertain the amount of data that was copied using the encase software from the original hard drive."
127 Having summarised his instructions, Dr Shatz then set out that the opinions and facts expressed in his report were based on a number of assumptions, and upon "the information, documents and electronic information sources listed in this section". Those documents and sources were identified by Dr Shatz:
Document Description Exhibit Emails Exhibits P1, P2, P4, P5, P10, P11 of File No:
195/2012Clayton Affidavit Affidavit labelled "Annexure C" of Mr Kevin James Clayton dated 18th June 2012 Clayton Report
File named "Computer Forensic subj report.doc" authored by K.J.Clayton. Found on the Evidence CD.
EnCase Details File named "EnCase details.rtf" found on the Report Evidence CD.
Outlook PST File File named "Outlook PST File Details.rtf" found on Details Report the Evidence CD. Quickbooks Files Encase bookmark report summarising metadata of Details Report Quickbooks files on the evidence CD 31 No 1/2021
128 Finally, it is appropriate to note that Dr Shatz stated in par 11 of his report that he had prepared the report "based solely" on the materials provided to him by the applicant.
129 There is no suggestion in the report of Dr Shatz that his attention was drawn to either of Exhibits P13 and P16, or that he was provided with copies of those documents. There is nothing in the report of Dr Shatz to suggest he was asked to search for Exhibits P13 and P16, or that he made any attempt to do so. With respect to the emails provided to him, which did not include Exhibits P13 and P16, Dr Shatz reported that he searched for the "provided emails" and found them in folders which he identified.
130 If Exhibits P13 and P16 had been created on the applicant's office computer, they would have been found in the Quickbooks files. However, the Quickbooks software required to open the files was not on the CD. In his declaration, Constable Clayton stated that he located the Quickbooks software and copied the financial files to the forensic server. The files were then copied to the CD. There is nothing in the statement of Constable Clayton to suggest that the Quickbooks software was downloaded.
131 In addition, in answer to a question as to whether the CD contained the email application Microsoft Outlook, Dr Shatz reported that the CD "contains no applications". The same answer was given to the question whether the CD contained the application Quickbooks or Quickbooks Software.
132 As mentioned, the applicant's submissions in response did not challenge the five essential propositions advanced by the Crown. Rather, the applicant drew attention to the evidence of Mr Demeyer which the applicant contended amounted to evidence that Exhibit P16 "came from a Quick Books file found on the Storage Tasmania computer." The evidence to which the applicant drew attention was as follows:
"Q: So Mr Demeyer, can you describe to the jury, to the Court, that document that
you have there in front of you [Exhibit P16].A: It's a tax invoice for the ninety thousand dollars ($90,000) of due diligence fee
that was paid to Mr Ohl's trust.Q: Thankyou. And who issued that tax invoice? A: Let's Fix It as trustee for the Ohl Family Trust. Q: Thankyou. And the invoice was issued to? A: Industrial Proprietary Limited. … Q: … now there's some hand writing notes on that tax invoice. If we're starting at the top, at the top right hand corner, there's some hand writing there, can you
just explain what that is?A: That hand writing basically says that this document came from a Quick Books
file from the Storage Tasmania computer for the Ohl Family Trust.Q: And is that an initial under it? A: Yes, my initial. Q: And then pretty much in the middle of the piece of paper there's some further hand written notes, can you please explain to the Court, explain to the Court what those hand written notes are? A: Those notes are my notes and I have written them down to reconcile where the $99,000, when it was paid, so that whoever was preparing the balance sheet at the time could actually see where the figures came from."
133 Mr Demeyer was not asked how he was able to say that Exhibit P16 came from a Quickbooks file from the Storage Tasmania computer for the Ohl Family Trust. Exhibit P16 is dated 24 March 2005, and the context of Mr Demeyer's evidence concerning the remainder of his hand writing on the document suggests that his notes on Exhibit P16 were made in 2005. Whether Mr Demeyer searched
32 No 1/2021
the file, or relied upon information given to him by the applicant's assistant or another person, was not
explored.134 The applicant's submission continued with reference to the evidence of Constable Clayton concerning printing off five emails from the CD. On the basis of that evidence, the applicant advanced the following contention:
"Contrary to Dean Demeyer's evidence that P16 was on the disc, there is no evidence in Constable Clayton's statement that Exhibits P13 or P16 were printed from the Quickbooks files on the disc. This infers that police could only have obtained Exhibit P16 from the disc via an email attachment in either a PDF, Word or other attachments. The Crown has not provided any evidence that police extracted Exhibits P13 and P16 from the disc."
135 This submission is fatally flawed. The evidence established that Exhibit P13 was sent by facsimile on 12 April 2006. There is no basis for an inference that either of Exhibits P13 or P16 were obtained by the police via an email attachment. No evidence was given as to how the police came into possession of Exhibit P16. It was not an original document. One obvious source was provision by Mr Demeyer of a copy of the document he received in 2005. There is nothing in the evidence of Constable Clayton to contradict the evidence given by Mr Demeyer.
136 In their submissions, both the Crown and the applicant sought to rely on material that was not before Marshall AJ or this Court during the oral submissions. The Crown wrote to Dr Shatz on 15 April 2020 and sought to rely upon answers given by Dr Shatz on 20 April 2020. The applicant sought to rely upon an email communication from the applicant to his junior counsel dated 25 April 2020.
137 In my opinion this additional material should not be received. Neither party made an application to lead additional evidence and the material sought to be adduced is not on oath.
138 The material upon which the Crown seeks to rely adds little to the evidence to which I have referred. The applicant's email of 25 April 2020 is a self-serving statement written to his junior counsel a day after the Crown emailed the Court, with copies to the applicant's senior and junior counsel, seeking to withdraw the concession and advancing the five propositions to which I have referred. In addition, this statement does not tend to rebut the uncontested evidence that the Quickbooks software was not downloaded to the CD and no examination of the Quickbooks files occurred.
139 For these reasons, the applicant's case that Exhibits P13 and P16 were not on the hard-drive must fail. The evidence before this Court does not provide any basis for such an inference.
| Delay | |
| 140 | Having reached the conclusion that there is no merit in any part of the applicant's proposed grounds of appeal, and being satisfied that no miscarriage of justice has occurred, it is unnecessary for me to discuss in detail the issue of delay and the applicant's explanation for the long delay. The applicant was found guilty by a jury on 14 February 2014 and the High Court refused special leave to appeal against the decision of the Court of Criminal Appeal on 9 April 2015. It was not until 18 October 2016 that the applicant applied for an extension of time within which to file a notice of application for leave to appeal against his conviction. |
| 141 | In his affidavit of 13 September 2016, filed on 18 October 2016 in support of the current application, in substance the applicant contended that until he was released on parole on 28 September 2015, by reason of the complexity of the matter and the large volume of documentary material, he was unable to prepare his case and instruct counsel. Further, the applicant asserted that there was an unreasonable delay by the police in failing to make available the CD, thereby denying the applicant the |
33 No 1/2021
opportunity to explore the CD and discover that Exhibits P13 and P16 were not on the CD (and,
therefore, not on the hard-drive).142 In all the circumstances, in my opinion the applicant's case with respect to delay is far from persuasive, but the issue of delay is of no significance in view of my conclusions concerning the merits of the proposed appeal. However, there is a further aspect related to the question of delay and the filing of the notice of application for leave to appeal which is of concern.
143 As discussed, the grounds of the application asserted that:
(i) "Cogent evidence", not available at trial, had become available; and (ii) "Exculpatory evidence", in possession of the prosecution, was not made available.
144 The applicant's affidavit of 13 September 2016, filed in support of the application, did not identify the "cogent" or "exculpatory" evidence. This absence is not surprising. The applicant did not receive the CD until about 30 November 2017, approximately 11 months after filing the application and asserting that cogent and exculpatory evidence had been discovered. The asserted absence of Exhibits P13 and P16 from the hard-drive/CD was, therefore, not known at the time the application was filed.
145 During oral submissions, counsel for the applicant acknowledged that the appeal was instituted without knowing whether exculpatory evidence existed on the CD in the hope of forcing disclosure of the CD. Counsel explained that having searched unsuccessfully for copies of Exhibits P13 and P16, and frustrated by the failure of the prosecution to permit inspection of the CD, the applicant and his legal advisors "speculated" that the only way to prove whether or not the documents were originally created by the applicant, was to obtain a copy of the CD through the mechanism of the application for leave to appeal.
146 Two observations are appropriate. First, the explanation that the applicant and his legal advisors wanted the CD for the purpose of exploring whether Exhibits P13 and P16 had been on the hard-drive, does not sit well with the subsequent failure to ask Dr Schatz to search the CD for those exhibits.
147 Secondly, to say the least, this process sailed perilously close to a misuse of the Court's processes. Further, at that time there was no basis for the assertions made in these grounds concerning "cogent" and "exculpatory" evidence having been discovered.
148 Such a practice should be firmly discouraged. It is no excuse to say that the application was necessary to force production of the CD. The Court relies upon legal practitioners to studiously avoid both the misuse of the Court processes and the filing of documents containing assertions which are not supported by material known to the practitioners.
Conclusion
149 For these reasons, in my opinion Marshall AJ was correct in refusing the application for leave to appeal and the appeal from his Honour's decision should be dismissed.
was not sought before trial. The CD was provided to the applicant on about 30 November 2017, approximately 11 months
after the application for leave to appeal was filed.
original documents or the origins of the documents. Mr Demeyer gave evidence that he received those documents, the implication being that they came from the applicant. However, there was no direct evidence as to the source of those documents. In particular there was no evidence implying that these documents had been downloaded from the original hard-drive. Although the applicant was provided with the statements of Constable Clayton and Mr Sice, neither of those witnesses was called at trial.
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