R (Cth) v Macarthur - [2005] NSWCCA 65

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina (Cth) v Macarthur [2005] NSWCCA 65

FILE NUMBER(S):
2003/3144

HEARING DATE(S): 21 February 2005

JUDGMENT DATE: 03/03/2005

PARTIES:
Regina (Commonwealth) v Ross William Macarthur

JUDGMENT OF: Grove J James J Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1326

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
P. E. McDonald (Cr/Resp)
J. Crowther, solicitor (Applicant)

SOLICITORS:
Commonwealth DPP
Crowthers Lawyers (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
KNOWINGLY CONCERNED IN NON-PAYMENT OF PENALTY SURCHARGE APPLICABLE WHERE "MARKED FUEL" USED FOR UNAUTHORIZED PURPOSE
EXPERT EVIDENCE REJECTED ON GROUNDS OF IRRELEVANCE AND FOCUS ON CREDIBILITY OF OTHER WITNESS
SPECULATIVE OPINION
RULING TO REJECT NOT ERRONEOUS
CROWN WITNESSES CAUTIONED AND GIVEN CERTIFICATES UNDER s128 EVIDENCE ACT
WITNESSES NOT THEREBY INDEMNIFIED AGAINST PROSECUTION
DIRECTION TO JURY THAT WITNESSES WERE "PROTECTED" CORRECTLY REFUSED
NOR WAS DIRECTION THAT TESTIMONY "TAINTED" APPROPRIATE
CHALLENGES TO SUMMING UP NOT MADE OUT
AMPLE EVIDENCE TO SUPPORT JURY FINDING OF KNOWLEDGE ADVERSE TO APPELLANT

LEGISLATION CITED:
Evidence Act 1995
Fuel Prices (Penalties Surcharges) Administration Act 1997
Fuel Misuse (Penalty Surcharge) Act
Fuel Sale (Penalty Surcharge) Act 1999
Fuel Blending (Penalty Surcharge) Act

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2003/3144
GROVE J
JAMES J
BARR J
3 March 2005

REGINA v ROSS WILLIAM MACARTHUR

Judgment

GROVE J: At trial before Dodd DCJ and a jury at Sydney District Court upon an indictment charging a single count that the appellant:
“Between about 1st February 1998 and 5th May 1999, at Sydney in the State of New South Wales was knowingly concerned in Concourse Oil (NSW) Pty Limited defrauding the Commonwealth in that Concourse Oil (NSW) Pty Limited failed to pay penalty surcharge on marked fuel”
the appellant was convicted.
The trial extended between 19 and 28 August 2002, the guilty verdict being found by the jury on the lastmentioned date. On 17 December 2002 his Honour sentenced the appellant to two years imprisonment dating from that day and ordered that he be released immediately upon entering a recognizance without security to be of good behaviour for two years, to appear for sentence if called upon during that period, and to notify any change of address during it. That recognizance is now expired and the appellant stands in no further jeopardy in respect of the charge. Mention was made at the hearing about confiscation of the proceeds of crime but no issue concerning such a matter is before this Court.
The appellant promptly gave notice of intention to appeal but a notice of appeal specifying grounds was not filed until 17 December 2003, on which date written submissions in support were also filed. It is not necessary to trace interlocutory directions by the registrar but a date for hearing of 21 February 2005 was fixed. In the meantime some further grounds of appeal were filed by the appellant on 20 November 2004. In response to what had been filed, written submissions from the respondent Crown were received on 14…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R (Cth) v Macarthur

Details

AGLC: R (Cth) v Macarthur [2005] NSWCCA 65
Case: [2005] NSWCCA 65
Decision Date: 3 March 2005

CaseChat Overview and Summary

The case of R (Cth) v Macarthur was heard in the High Court of Australia. The appellant, who was the sole director, secretary, and shareholder of Concourse, was found guilty of multiple counts of knowingly being concerned in the non-payment of penalty surcharges applicable to the use of "marked fuel" for unauthorized purposes. The appellant appealed against his conviction, raising various grounds of appeal, including the admissibility of expert evidence, the reliability of key witnesses, and the adequacy of jury directions.

The legal issues before the court included whether the expert evidence provided by the appellant was relevant and admissible, whether the trial judge should have warned the jury about the unreliability of key witnesses, and whether the trial judge's directions to the jury were correct. The court had to determine whether the evidence provided was sufficient to support the jury's finding that the appellant had the requisite knowledge to be held criminally liable for the non-payment of the penalty surcharges.

The court rejected the appellant's argument that the expert evidence should have been admitted, finding it irrelevant to the issues in the case and that the focus should have been on the credibility of the other witnesses. The court also ruled that the trial judge did not err in refusing to warn the jury about the potential unreliability of the witnesses, as no such warning was sought by the appellant. The court found that the witnesses were not indemnified against prosecution and that the trial judge's direction that the witnesses were "protected" was correct, as it did not imply immunity from prosecution. The court concluded that there was ample evidence to support the jury's finding of knowledge adverse to the appellant.

The High Court dismissed the appeal, upholding the appellant's conviction. The court found that the evidence was sufficient to support the jury's verdict and that the trial judge's directions to the jury were appropriate. The appellant's arguments regarding the expert evidence and the credibility of the witnesses were not successful, and the court confirmed that the witnesses were not given immunity from prosecution. The final orders of the court were to uphold the conviction of the appellant on all counts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 128 of the Evidence Act provides an elaborate procedure in circumstances similar to where, prior to that statute, a witness was cautioned as to entitlement to claim privilege against answering on the ground of possible self incrimination. Under the statutory provision, in short, if a court determines that a witness should answer a question of that quality, a certificate is given which, subject to exception not presently material, prevents that evidence, given under “protection of the certificate,” from being used in proceedings against that witness later. The submission that these witnesses were given immunity from prosecution, by the certificate or otherwise, misunderstands what occurred. Both witnesses remained vulnerable to prosecution. No indemnity was received. Either could be prosecuted but the s 128 certificate did no more than prevent what was said on this occasion from being admissible against them in any such prosecution. Ground 4 asserted “The learned trial judge erred in law in failing to warn the jury of the unreliability of the evidence of Denys Seymour or John Seymour”. The short statement of the flaw in this ground is that, whilst s 165 defines some types of evidence which may be unreliable, warning is required when it is sought by a party: see s 165(2). No such warning was sought. On the contrary, it was specifically not sought. During his charge to the jury, but in their absence during an adjournment, his Honour asked counsel whether she wished a direction under s 165 in relation to the evidence of the Seymours. Counsel asked to consider the matter over the luncheon adjournment after which, before the jury returned, she stated:“…… after giving it much more careful consideration I am not going to ask you to give a (section) 165 warning”. (AB 412-413). Despite this circumstance, the ground was sought to be pressed. Criminal Appeal Rule 4 applies, nevertheless I shall refer to submissions advanced on behalf of the appellant. Reference was made to the expression in s 165(1)(d) to a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, but a warning of the type postulated is not in relation to that provision aligned with some collateral provision such as, for example, identification evidence, which, although defined in the contingent language of s 165 in subsection (1)(b), nevertheless attracts an overriding obligation on the part of a judge to give a direction, whether or not requested. See s 116. In submissions, the appellant pointed to a number of aspects of the evidence of the Seymours, the greater part referring to the evidence of Denys Seymour. The Crown joined issue with the assertions but it is not necessary to recite the challenges item by item. Merely because it was open to the jury to accept or reject evidence of a witness (including the Seymours) does not give rise to a requirement that the judge warn the jury that the evidence of the witness may be unreliable. No more is demonstrated in the argument in support of this ground than there was scope for submission to the jury inviting them to doubt the evidence of these witnesses.

Decision

Reasons for decision

GROVE J

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Ratio Decidendi

Legal Principle Established

Established by: GROVE J

To inhibit evasions of appropriate levy, there was legislated the Fuel Prices (Penalties Surcharges) Administration Act 1997. That Act took effect from 1 February 1998 with congruent statutes including the Fuel Misuse (Penalty Surcharge) Act, the Fuel Sale (Penalty Surcharge) Act and the Fuel Blending (Penalty Surcharge) Act. The firstnamed statute created offences, imposed record keeping and like obligations and stipulated available punishments for various transgressions. In practical terms, there was created a structure whereby fuel destined for other than on-road use was required to be “marked”. This was done by the introduction of a chemical additive or “tracer” known as mortrace MP. This introduction did not affect performance or characteristics of what became “marked fuel” and it could still be used, for example, either as solvent, heating oil or to drive diesel engines but testing could detect whether marked fuel was being supplied when it was destined for use in a diesel engine. The penalty surcharge was equivalent to double the correct rate of excise payable. If the correct rate was 43 cents per litre, the surcharge rate would be 86 cents per litre. If marked fuel was supplied for on-road use the statutory construct imposed a requirement for payment by the vendor before the marked fuel was sold for on-road use and a requirement was also imposed on the user of the fuel before it was so used. It is obvious that payment of penalty surcharge at any distribution or user point would be uneconomic and the principal legislative aim was deterrence. The foregoing would seem to be uncontroversial. The corporation named in the indictment which I will refer to simply as “Concourse” was incorporated as such in about September 1997, but at all material times the appellant was the sole director, secretary and shareholder thereof. Its registered office was at his home at Kenthurst. There was no issue at trial about the identification of the appellant with Concourse. The Crown case was founded upon Concourse, which possessed only one prime mover and tanker trailer, acquiring marked fuel from businesses known as Chemsol and, reversing the syllables, Solchem. Chemsol’s premises were at Smithfield, Solchem had premises at Chipping Norton. It suffices for present purposes to refer to only one of these businesses which were conducted by Messrs Denys and John Seymour. The nature of Chemsol’s business was that it stocked only marked fuel. Concourse loaded marked fuel into its tanker and either, on the same day or the day following, delivered it to various transport companies for intended use in on-road diesel powered vehicles. On 5 May 1999 Commonwealth officers charged with overseeing compliance with the excise payments requirements, visited the Chemsol premises and observed the Concourse tanker being loaded with fuel. Its capacity was about 36,000 litres if filled. At that time the driver was an employee of Concourse, Mr Hood. After discussion with the officers, he rang the appellant who instructed him to deliver the load to a customer which operated a fleet of diesel powered vehicles. Mr Hood declined to do this and eventually took the loaded tanker to the appellant’s premises at Kenthurst. Later the appellant delivered the fuel to a company associated with the customer to which Mr Hood had been directed to take the load.