Pack v The Queen

[1989] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B47 of 1988

B e t w e e n -

BERNARD JOHN PACK

Applicant

and

THE DIRECTOR OF PROSECUTIONS

(QUEENSLAND)

Respondent

Application for special

leave to appeal

MASON CJ
DEANE.J

DAWSON J

Pack

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 28 JUNE 1989, AT 2.15 PM

Copyright in the High Court of Australia

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MR J.A. GRIFFIN, QC:  May it please the Court, I appear with

my learned friend, MR P.L. FEELY for the applicant.

(instructed by Callaghan & Reidy)

MR M.J. BYRNE: If the Court pleases, I appear with my learned

friend, MISS D.R. WEIR, for the respondent. (instructed

by the Director of Prosecutions)

MASON CJ: Yes, Mr Griffin.

MR GRIFFIN: It is first necessary that I tell Your Honours

something about the facts very briefly.

MASON CJ: Before you do that would you care to hand up your

outline of argument?

MR GRIFFIN:  I am sorry, yes.

MASON CJ: Thank you. Yes.

MR GRIFFIN:  Your Honours, the complainant, Douglas Godward, was

the proprietor of a seafood retailing outlet which

he had just begun at Carrara. Carrara is better

known as the home of the Brisbane Bears, but this was

a seafood retailing outlet called Carrara Seafoods.

It was actually owned by a company, Mundara Investments

Pty Ltd, a company of which Godward and his wife were

the directors. There were apparently negotiations

between the complainant and the applicant for the

applicant to buy a half share in this business for

$30,000.

The two of them had met when Godward expressed some interest in buying a seafood business that the applicant owned at Runaway Bay which was called

King Neptune's Seafood. Godward did not, in fact,

buy King Neptune's but an arrangement was made

between the two men about the setting up of Carrara

Seafoods and the two of them worked along with

various employees in Carrara Seafoods in the first

weeks of its operation, which were in March and April

of 1987. The applicant said that pending the finalization

of the acquisition by him of a share in the business

he was entitled to a salary. That was apparently
never totally resolved but, in any event, it was

arranged between the two men that the applicant

would purchase the seafood for the retail outlet from

the fish market and bring it to the retail outlet.

The store opened on or about 16 March 1987 and this

arrangement about the applicant purchasing the seafood

was put into place. The applicant said in evidence

that seafood was sold not only to the public but to

other retail outlets and that if there was an excess

it could be sold at cost.

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He said some of the other businesses would come

to the premises of Carrara Seafoods and take delivery

there but, at page 113, he said that there was also

an arrangement by virtue of which he made what he

called a "daily run" to other retailers with seafood

apparently in a truck.

MASON CJ:  How does this narration of the evidence fit in with

the attack that you are making upon the judgment of

the Court of Criminal Appeal?

MR GRIFFIN: It is necessary for me to come first of all,

Your Honours, to the nature of the evidence given by

Godward and Harper and I am simply introducing that

at the moment.

MASON CJ: Yes.

MR GRIFFIN:  Now, the complainant agreed that there had been

overstocking and that in some circumstances the onus

was on the applicant to sell it - this appears at

page 65 - and he agreed that the applicant had accounted

to him in that regard but said it was not very much

money. Now, the complainant terminated the arrangements

between the two men in the middle of April 1987. It

seems that he did not do so on account of any belief

on his part that the applicant had misappropriated

fish and the complainant made no statement to the

police until July - that appears at page 37, line 3 -

after he had been sued by the applicant for salary.

When asked when he first thought that he was

short of income by $3000, which is what he alleged,

he said - and this is at page 41, lines 15-16:

It was inunediately we parted company and when

I sat and started to really look at my bank

balance.

The applicant, Your Honours, was charged under

section 408C of the Queensland CRIMINAL CODE. He

was charged with dishonestly applying to his own

use property of Mundarra Investments to the value
of $2000 or upwards.	Under section 581 of the Code

it was possible for the applicant to be convicted

of misappropriation of property simpliciter and

that is, indeed, what happened.

The trial judge directed the jury that it

could not be satisfied on the evidence that the
applicant had stolen a quantity of seafood in excess

of the value of $2000 but there was, and I quote:

plenty of evidence -

which supported the general proposition that the

applicant had -

dishonestly applied to his own use a quantity

of seafood.

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That material appears at page 147, line 53 - or

the statement about "plenty of evidence".

Your Honours, there was no dispute about what the

applicant had bought from the fish market and there

was documentary evidence that related to that -

that has not been put before Your Honours in the

appeal record, it is available if necessary - it

related, as I say, to the purchase by the applicant

of seafood apart from one exhibit - exhibit 16 -

which related to a stock-take which was taken by

the applicant with the assistance of the complainant

during the relevant period.

What was in dispute, of course, was whether the

applicant had delivered the seafood that he had

purchased and whether he had misappropriated any of

that seafood. Now, in looking at the evidence, it

is first necessary to note what there was not any evidence of. The first is that the applicant was

never seen to be taking any seafood and applying

it to his own use and, secondly, there was no direct

evidence as to there being any discrepancy between

what he had purchased at the fish board and what

had been delivered by him.

McHUGH J:  Well, is that right? It depends what you mean by

"no direct evidence",	but, for instance there were
various quantities of	food which were put to Godward
and Godward said, "We	did not receive them.".

:MR GRIFFIN: Yes, but, Your Honour, he also said at page 37,

lines40-53, and again at page 68, lines 4-6, that he

never checked the amount of fish delivered against

the fish board invoices.

McHUGH J:  I appreciate that but is not your problem the sort

of evidence that appears on page 16. After all the

jury found in your favour so far as the value is

concerned, so to support the conviction all the

Crown has got to show is that there was evidence

that a quantity of seafood was· stolen.	Look at
page 16 - through there - he was supposed to have
got 138 sand crabs.	He says, "We would not sell"-

two or three crabs a day -

"we would not have possibly bought that."

:MR GRIFFIN:  Bu4 Your Honours, it is all speculation. If you

look at the top of that page:

hake fillets? ..... We would have received one

of those but definitely not two.

And then -

it just wouldn't fit in the container.

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McHUGH J: But the fresh seafood - the evidence about the fresh

seafood has got to be read against the proposition

that it was cormnon ground that it only lasted three

or four days. If you take the crabs, here he is

supposed to have delivered 138 sand crabs and the

witness says, "Well, we would not sell three or four

a day.".

MR GRIFFIN:  Your Honour, one thing that does not exclude is

the prospect that if there was misappropriation it

was misappropriation by somebody else. And this is

something that neither the trial judge nor the

Court of Criminal Appeal ever adverted to. Had the

matter been approached correctly so that that would

have been recognized - I mean, the mere fact that

they did not sell a particular number of crabs did

not mean that the applicant had misappropriated

crabs.

McHUGH J:  But surely your client would have - the jury -would take the

view he would have given some explanation about
that. If on 17 March you buy 40 sand crabs and then

aga:inon 20 March you have got to buy another 114,

or something, surely that would excite somebody's

suspicion?

MR GRIFFIN: Well, what he said was that, "I never misappropriated

any sand crabs or anything else.".

MASON CJ:  Why would he be buying sand crabs in that quantity

if there was not that need for them in the business?

MR GRIFFIN: There were occasions when the business was

overstocked in.the sense that the retail outlet could

not sell all of the stock but they had this practice

of selling to other outlets. Your Honours, it is

really necessary to see how this evidence was given,

this evidence of Godward and Harper. It really

just amounts to speculation on their part,

retrospectively.

McHUGH J: Does it really? I appreciate the way you have put

it but somebody has got a business and has said,

"Well, you purchased 45 kilos of squid over three

days," and he says, ''We would not sell 45 kilos of

squid in three days.". Now why could not the witness

give that and be accepted.

MR GRIFFIN:  He can give that.

McHUGH J: It was not objected to.

MR GRIFFIN:  It was not objected to but it still does not prove

that the applicant misappropriated it.

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McHUGH J: Well, does it come down to this. that your point is that the jury should have been instructed that there

is a possibility that somebody else had misappropriated

it?

MR GRIFFIN: Certainly, they should have been instructed as to

that and, in our submission, as to a number of other

things too. Your Honours, if the evidence dia not

demonstrate, as the trial judge said, that the

applicant had been guilty of misappropriating fish in

excess of $2000 then, for the same reason, it did

not demonstrate that he had misappropriated fish at

all, because on all of the evidence the misappropriation

had been well in excess of $2000. If the evidence was

sufficiently trustworthy and creditworthy to

demonstrate that the applicant had misappropriated

fish then it demonstrated that he had misappropriated

over $2000 worth of fish.

One of the things that the Court of Criminal

Appeal never addressed its mind to was the apparent

inconsistency between the proposition that there

was not a case against the applicant in relation to

misappropriating fish to the value of $2000 but

there was plenty of evidence that he had misappropriated

fish.

DAWSON J: That might be explained by the fact that the jury

accepted only some of the evidence or sorre of the

items. It had been proved beyond reasonable doubt.

MR GRIFFIN: That may be the case but, Your Honours, we are

talking about the assessment of the prosecution case

and the trial judge's assessment of that was to the
effect that there was not a case of the misappropriation

of fish to the value of $2000.

DAWSON J:  The jury may have accepted that but taken one or

two items and said, "At least those were proved",

and that was enough.

MR GRIFFIN: Well, we urge Your Honours to look at the way in

which this evidence was given. This, in our submission,

ex post facto evidence by these two people, with

Harper, of course, saying that she had had this

discussion with the complainant. She said that she

had not seen the police until December and she

agreed that she would not really know how much fish

was sold and, at page 88, she said that about a

month before Doug - and that is what she referred to

him as - had decided to do anything about it he had

asked her to have a look at the invoices with him and

to go through it with him. It is not surprising in

those circumstances that her evidence, as to what was

bought and what was sold, is in similar terms to

that of Godward.

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It all takes a similar form. For instance at page 81 point 22, she said she did not remember seeing four

ounce tubs of mussels but:

maybe one or two dozen, but not four.

And at page 82, line 15, she remembered "one or two"

cartons of sea perch but "not any more". At page 82

line 45, she said that the two boxes of dory fillets:

could have come in.

Page 82, line 50, on the question of whether two

boxes of hake fillets came in on particular dates, she

said:

I would say only one box of that because that

is not a big seller.

And at page 83, line 1, in relation to sand crabs

between particular dates, she said:

I say we didn't get them, not that many.	We
couldn't possibly have sold those.

At page 83, line 18, in relation to the amount of squid received between certain dates:

we probably would have got the first lot.

At page 83, line 30, on looking at invoices for mackeral she says:

It is an awful lot of fish.

This is the quality of the evidence that is put

forward to prove that this man misappropriated fish.

McHUGH J: Well, take the mackeral: 70\ kilos of

mackeral in three days, well these people say, "That

is just absurd, we did not sell 70 and a half

kilograms of mackeral in three days, or in three

months probably."

MR GRIFFIN: That is what they say in the course of giving evidence in this sort of form, "This is too much,

this is not realistic'', and they give these estimates.

Page 85, line 15, she makes an estimate of only 10

to 15 kilograms of shark had been received; page 85,

line 35, about sea perch. "Realistically" she said

only "one box" of sea perch had been received, not

two. This is all in the context of them not, in

fact, being able to say what was received.

TOOHEY J:  Mr Griffin, is the complaint that the evidence was

inadmissible or that it was admissible but it was not
of the quality that ought to have lead to the

applicant being convicted.

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MR GRIFFIN:  Your Honour, it was probably admissible.

TOOHEY J: Well then, once it is admissible it is a subject of

cross-examination.

MR GRIFFIN:  Yes. It is admissible, but then when one looks at the

fact that these are the propositions upon which the prosecution case depends, ie that the profitability

and turnover was not as great as it should have been
and that the storage space could not have taken all

this fish, it then has to be looked at in terms of

it being solely that evidence that establishes those

propositions. Those propositions, in our submission,
are not sufficient, in any event, to prove that the

applicant misappropriated fish.

McHUGH J:  But the issue of profitability and the issue of

storage space, they were just further strands to

reinforce the argument because there was evidence

that "we just didn't receive those quantities of

fish for three day periods". It was reinforced by

saying, "Look at our profits and look at our storage

capacity.". But there were three independent

arguments were there not - three supports?

MR GRIFFIN: Really, it was not evidence that, "we did not

receive the fish" it was evidence that, "in relation

to particular items we could not have received that

fish because we did not sell that amount of fish.

We did not sell that amount of sea perch therefore

we did not receive that amount and therefore he

had not delivered that amount and therefore he had

misappropriated that amount.". That is the tenuous

nature of the way in which the prosecution case went

and it really amounts to no more than that.

McHUGH J: Could you answer something for me - just changing

the subject for a moment - which intrigues me:	the
trial judge instructed the jury that dishonestly

applying was an objective test and it did not depend

upon whether the accused believed he was acting

honestly or not.

MR GRIFFIN: Yes.

McHUGH J:  You accept that, do you?

MR GRIFFIN: No, I do not, Your Honour, certainly not the

accepted test of dishonesty in modern times -

certainly not the GOSCH test.

(Continued on page 9)

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MR GRIFFIN (continuing):  There are a lot of things to dislike

about the judge's summing up, none of which were

evaluated by the Court of Criminal Appeal. There

is the contradictory statement about there being

insufficient evidence about the $2000 but plenty of evidence

about misappropriating fish and then there is his

abject misleading of the jury on the question of the

turnover in the first ·week because he specifically told

the jury - after making lengthy calculations about the

first week, he specifically told the jury that if

his calculations were correct that would mean that

the business had a turnover of $4000 and, of course,

Godward said that that did not take place.

Your Honours, that is seen at the foot of

page 149. His calculations are there on page 149,

and then he says:

Now, the fresh fish has to be disposed of within three or four days, so on the

figures within a week, seven days, they

would have to dispose of over $4,000.00

of fresh stock through that shop and,
of course, Godward said it did not take
place and the girl Harper said it did

not take place either.

Might we take Your Honours to page 60, line 30,

in which the complainant is being asked about the

position in the first week and where he specifically

says that the turnover in the first week was $5000

and goes on to say that that had been his average

since. Now, that is, in our submission, a very

serious misdirection to the jury and one which the

Court of Criminal Appeal did not even consider.

TOOHEY J:  Mr Griffin, as the matter was argued before the

Court of Criminal Appeal, as I read the record,your

c 1 ien t sought to withdraw a ground of a ppea 1, or a

notice of appeal, which included a challenge to the

judge's directions and substitute a notice of appeal

which, in effect, was that the verdict was unsafe and

unsatisfactory, and the Court of Criminal Appeal did

not deal with the amendment immediately, but in the

end apparently disposed of the appeal by reference to

the amended ground sought, which really removed any

attack on the judge's direction, did it not?

MR GRIFFIN:  Well, except that one of the things that has to

be looked at in determining whether or not the verdict

is unsafe and unsatisfactory, in our submission, is

the judge's direction.

McHUGH J:  Yes, but there was nothing the matter with that direction

was there, because the direction at page 149 is

dealing with turnover of fresh stock. This business

sold fresh and frozen food and the $5000 turnover

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figure includes frozen as well as fresh food, does

it not?

MR GRIFFIN:  That may be right, Your Honour. The direction

does relate to fresh stock and it may be that the

$5000 relates to both.

McHUGH J:	Yes.
DAWSON J:	Mr Griffin, you say that the special leave point,

or at least one of them, is the application of

CHAMBERLAIN's case. I am not sure how you put that.

MR GRIFFIN:  Your Honour, it was a case where the evidence was

circumstantial and at no stage was the jury directed

to look at the particular facts that would have to be
proved in order to sustain a verdict of guilty and the

particular facts here upon which the Crown depended

really were the fact that the profitability and

turnover were down and that the storage space was

insufficient to take the quantities of seafood that

the applicant had purchased.

DAWSON J:  But does CHAMBERLAIN's case,and every circumstantial

evidence case, say you have to specifically point out

the facts from which the inference is to be drawn?

MR GRIFFIN:  It does say that in a circumstantial case one

does need to prove beyond reasonable doubt the facts

upon which the conviction is to be based.

DAWSON J:	Yes.
MR GRIFFIN:	There was no endeavour to do that here. Neither

the trial judge nor the Court of Criminal Appeal ever

said, "This is a circumstantial case and it is based

on these propositions. It's necessary for these propositions to be demonstrated". All that was

done - - -

DAWSON J:  You do not have to point that out to the jury 1n

specific terms, do you? Indeed, it is said to be

an obvious proposition in CHAMBERLAIN.

MR GRIFFIN:  Yes, but, Your Honour, there would be no point in

it being the law that the particular facts would have
to be proved beyond reasonable doubt unless the jury 1s
told that and in this case the jury was simply left

with the general question, "Do you think that the

applicant has been misappropriating fish?".

DAWSON J:	They were told that that had to be proved beyond reasonable doubt, were they not?
MR GRIFFIN:	They were told that that had to be proved beyond

reasonable doubt, but - -

DAWSON J:  And if it is an obvious proposition that if it 1s a

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circumstantial case the circumstances have to be

proved beyond reasonable doubt that is enough, is

it not?

MR GRIFFIN:	In my submission not, because no-one pointed out to the jury that the case really depends upon these
other things: "Seeing there is no evidence of the applicant stealing the fish it is necessary for you
to be satisfied of these other facts." No-one
ever said that to them.
DAWSON J:	Not even counsel in their address?
MR GRIFFIN:	I do not know what counsel said in his address,

Your Honour.

DAWSON J:	It would be very odd if they had not.
MR GRIFFIN:	Yes, but certainly the trial judge never said it

to them. He certainly directed them correctly in

relation to proof beyond reasonable doubt but at no

stage did he tell them what they would have to see

this prosecution case as proving before they could

convict and really it was a classic case for the
operation of CHAMBERLAIN seeing that there was no

direct proof that this man had misappropriated fish.

Your Honours, that leads to PEACOCK. Why is

it not a reasonable hypothesis here that if fish was

missing somebody else had misappropriated it?

McHUGH J:  Because your client was the one who was ordering

these large quantities of fish for a business which

could not dispose of l/20th of it.

MR GRIFFIN:  Your Honour, I do not think it ever went to

l/20th.

McHUGH J:	Take the case of the crabs.
MR GRIFFIN:	I think he bought 130 crabs and they gave some

very low figure for the sale of crabs.

McHUGH J:	Three crabs a day, or something.
MR GRIFFIN:	Yes, well on the face of it it just seems

ridiculous that a seafood outlet sells three crabs

a day. One purchaser will go along and buy 12 crabs.

DEANE J:  But are the crabs not probably the best example

because there it is not a matter of hypothesis?

There is a direct conflict in that your client said

in his evidence that there was a real issue about

the crabs and that everybody agreed he had over bought and that they had used the surplus for making crab meat. There there was a direct conflict as to what had

happened and the jury obviously believed the

prosecution witness.

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MR GRIFFIN:	Yes.
DEANE J:	That comment only seems to apply, as I read it, i.n

relation to the crab meat or the crabs, but the crabs

do pose a problem in the way you are putting it.

MR GRIFFIN:  Well, except for the arrangement that they sold to other outlets.

DEANE J:  But you see he does not suggest that happened with 11 Ye s ,

the s e c r a b s . Wh a t he s a i d w a s , I over b o ugh t ,

we all agreed I over bought, it was a disaster and

we turned it into crab meat". Now that is a direct

conflict between him and the Crown evidence, admittedly

only in that area.

MR GRIFFIN:  As to whether it went into crab meat, as opposed

to being sold to other outlets, Your Honour.

DEANE J:	As to whether the crabs arrived and were used, and so
on. What I had in mind, Mr Griffin, is page 121
in his cross-examination.

(Continued on page 13)

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MR GRIFFIN:  Your Honour, that is for them to say that

there were not occasions when sand crabs were

sold to the outlets.

McHUGH J:  But we are dealing with one specific period

here, are we not, 17 to 20 March?

MR GRIFFIN:  Yes. It is simply to say that too many

were bought and they turned it into crab. meat.

DEANE J:  Was that put to the prosecution witnesses in

cross-examination?

McHUGH J:	I think it was.
MR GRIFFIN:	Yes, I th ink it was, Y·our Honour, because

then Your Honours, there is this question of
the mark u~ and the use of the mark up in this
ex post facto reasoning that these things had

not been delivered because the profitability

was not there. There was no clear evidence

about the mark up. At page 21, Godward said

that the mark up was "about 30 per cent" and

he said:

I have stipulated between 30 and 40

per cent mark-up.

But, at page 49, he agreed that fish that had been

sold by pack to other retailers was sold at

less than a 40 per cent mark up and, at page 50,

he agreed that mark up was dropped if the product

was deteriorating.	He said that the mark up did
not cover prawns.	He said that "I think" the mark up
"covered everything apart from prawns".	At

page 64, he said that some seafood was left to
pack to sell "for the best price he could" and
page 64, line 39 - and this is relevant to his

evidence on this point and on the whole question

of what was delivered - he said:

I really didn't know what was going on.

One must bear in mind that he, like Harper, had

never been in the seafood business before. Then,

of course, there is the question of the storage

capacity of the complainant's premises and, in

that regard, it is to be noted first that at

page 52, line 26, Godward agreed that he was:

not able to be precise either about what

stock -

he -

had on your premises at any particular time

or he was not able to be precise about what he

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had on the premises at any particular time,

apart from at the time of the stock-ta~e.	There
was a stock-take, of course, conducted by the
applicant with his assistance.

At page 71, line 50, he estimated that the

freezer would hold 10 cartons and, on the other

hand, at page 93, line 9, Harper said there was

room in the freezer for "between 15 and 20 cartons". So, one of these witnesses was simply not a reliable

witness. There are a lot of contradictions between

them and, in my submission, when one looks at

their evidence, it is quite unreliable and certainly

quite insufficient to enable a man to be convicted

on the basis of what really amounts to their

assertions that certain quantities of fish were

not delivered and their assertions that the

applicant had over bought and the freezer space

issue was of little value to the prosecution

because of the admission by the prosecution

witnesses that fish was sold to these other

outlets and, Your Honours, at page 20, Godward

spoke of what would happen if there was seafood

that was "surplus to our requirements". This

is at line 36. He said:

There was three or four different avenues that he managed to sell off to cooking

places - small amounts of fish that were

more surplus to our requirements.

How many times would that have happened?---

About four. There was one little fellow

in Ferry Road Seafoods, there was a little

chap that I see quite often at the Burleigh

Heads establishment and I think Sorrento

Seafoods also bought some and paid by cheque.

How did these other people pay?---Just by cash.

He spoke about that again at page 34 where, having

said that there was no record of the fish that

was sold, at about line 15, he said that he had

not sold fish. I think this does relate to what

was sold to these other outlets and he said:

Mr Pack would go out and get whatever he

could for it; it was well below market

value, whatever he sold, because its

shelf life was so limited.

Then he said that that was "at cost price" and

so on.

So, although he says that this did not happen as often as the applicant said it happened, there was

a clear acknowledgement on the part of Godward,

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and this applied to Harper as well, that fish

was sold to other outlets when it was surplus

to their requirements and, of course, the evidence

from the prosecution witnesses on this point

never got to the stage of being at all specific.

They simply said, "Oh yes, there were occasions

on which other fish were sold to other outlets but

we cannot specify when they were and we do not

think it is as often as the app1icant is going to say."

At page 91, Harper said that she remembered

"particularly one occasion" of "a big lot of whites"

being sold in this manner.	She agreed, at page 91,
that the shop had been overstocked.	As to the

selling -- her statement that she remembered "one

occasion" when "a big lot of whites" had been sold -she

said that there was at least one other occasion

when that had occurred.

Then, there is this inconsistent evidence as

to the shortfall and if one looks at page 21,

line 26 one sees that the complainant starts off

saying that his shortfall was $5900 - that is at

about line 26. And then the prosecutor takes him

to his total banking and then at line 32 he agrees

that the shortfall is $3127.93. I mean, how

reliable is this evidence that this man is giving;

this man who says initially the shortfall is

$5900 and then confronted with a particular figure,

he agrees with $3127.93? That is presumably where

the $3000 comes from and if that $3000 is as shaky

as that, how can this evidence possibly justify the

proposition that any seafood was misappropriated?

I told Your Honours that it is relevant that neither Godward nor Harper had any previous

experience in the seafood trade; that appears at

page 80 point 7 so far as Harper is concerned,and

early on in the evidence of Godward where, I thin~ he said

he had been in the hotel business before. Here we

have a case of these people speculating months after

the event, after the complainant has been sued by
the applicant, speculating on this allegation by

the complainant that the applicant must have

misappropriated $5900 worth of fish; $5900 that

immediately comes down to $3100 when he is

confronted by a figure as to his turnover and with
the evidence being given after the two of them have

cooked it UR or at least discussed it.

Your Honours , it is :i;elevant that the witness

Richardson, who was a prosecution witness, when

shown a large invoice for· prawns - one of

these big invoices that the prosecution was relying

on as being outlandish for the purposes of this

business because it showed 60 kilograms of ocean

king prawns and 40 kilograms of medium prawns - he

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said - and.this is at page 77, lines 11 to 13 -

having been asked a question which was - it is

in cross-examination - asked a question about

this, he said:

No, it's not an overly large purchase

for, you know, a business that is running

a fairly high volume.	I have other
clients who buy more.

And the prawns purchase was a major purchase in

the prosecution case.

(Continued on page 17)

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MR GRIFFIN (continuing):  Of course, there was evidence

that on a number of occasions the applicant did

not arrive back from purchasing until 3.00 pm

and there was a difference of evidence on that

but it is submitted that that evidence was of no probative value at all in the absence of showing what the applicant was doing in that time; that

was simply something in order to demonstrate some

prejudice against him but it really proved

absolutely nothing, in our submission.

Your Honours, in that state of the facts,

the Court of Criminal Appeal did not make an

independent assessment of the evidence. An

examination of the judgment of the Court of Criminal

Appeal reveals that it is really no more than a

surrrrnary of the evidence for the Crown and the defence

concluding with the statement at the foot of

page 169 or the endorsement of the trial judge that:

"it would appear that there is complete

disagreement between the Crown witnesses and the accused as to what came into the

shop and what could be sold through the

shop and what was sold through the shop" -

Your Honour, this case really amounts to a situation

in which the complainant has got up in the witness
box and he has asserted that the applicant

misappropriated fish; and the applicant has got in

the witness box and he has asserted that he did not

misappropriate fish. And, in those circumstances

the applicant has been convicted; that is really

what it amounts to. All of the propositions upon
which the prosecution is based can readily be

demonstrated to be totally unsound and it is a

circumstantial case. What the Court of Criminal

Appeal did was to simply surrrrnarize the prosecution

case and then wrongly conclude that credibility was

the only issue involved. Credibility was not the

only issue involved because there is a real question

here as to whether the prosecution case, as it stands,	can possibly sustain a conviction. If that is the
case, then credibility does not come to be involved.
There is no careful assessment of the quality of
this evidence at all. There is a mere assessment
of the propositon that there is evidence upon which a conviction could be based; that is what the
Court of Criminal Appeal analysis amounted to.

It is submitted, therefore, that there is no

independent assessment here of the equality of

this evidence. There is no assessment of the

evidence of Godward and Harper; there is simply

the statement that there is evidence here by Godward

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and Harper whic~ if accepted,could prove the

case. There is no assessment of the fact that the

evidence is circumstantial; there is no

identification of the facts on which the Crown case

depended or an analysis as to whether they were

proved beyond reasonable doubt and there is no

analysis of how it could be tha~ if there was no

evidence that this man could be said to have

misappropriated seafood to the value of $2000, there

was evidence that he misappropriated seafood

at all.	They are our submissions, if the Court
pleases.

MASON CJ:  Thank you, Mr Griffin. The Court need not

trouble you, Mr Byrne.

MR BYRNE:	Thank you, Your Honour.
MASON CJ:	The Court is not persuaded that this

application raises any question of general

principle that would warrant the grant of special

leave to appeal.	The application is, therefore,
refused.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE

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