R v Bartlett [No 15]

[2014] WASC 353

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   R -v- BARTLETT [No 15] [2014] WASC 353

CORAM:   EM HEENAN J

HEARD:   22 AUGUST 2014

DELIVERED          :   22 AUGUST 2014

PUBLISHED           :  26 SEPTEMBER 2014

FILE NO/S:   INS 107 of 2012

BETWEEN:   THE QUEEN

Prosecution

AND

PETER MERVYN BARTLETT
First Accused

RONALD GEORGE SAYERS
Second Accused

Catchwords:

Criminal trial - Procedure - Application to discharge jury because of submissions made by prosecution during final address, at this point not completed - Application for judge to direct jury to disregard aspects of prosecution address before address is complete and before addresses by counsel for accused

Legislation:

Nil

Result:

Application to discharge jury refused
No directions by judge to be given before completion of final addresses by all counsel

Category:    B

Representation:

Counsel:

Prosecution                   :     Mr P Roberts SC & Mr A L Troy

First Accused                :     Mr R Richter QC & Mr C Boyce

Second Accused            :     Mr D G Staehli SC & Mr A E Eyers

Solicitors:

Prosecution                   :     Director of Public Prosecutions (Cth)

First Accused                :     Clifford Chance

Second Accused            :     Clifford Chance

Case(s) referred to in judgment(s):

Nil

1. EM HEENAN J:  I am sitting again in the absence of the jury to consider and determine an application made by Mr Richter QC on behalf of Mr Bartlett that at this point I should discharge the jury and order a retrial on the grounds of alleged irreparable prejudice arising from submissions made by counsel for the prosecution when addressing the jury.  The application has been joined in, at least to some extent, by counsel for Mr Sayers.

2. The application includes an alternative subsidiary application that if I should decide that the jury need not be discharged, I should nevertheless direct them, immediately, about certain matters of law to correct and hopefully to dispel - that is, hopefully in the minds of those advancing this submission - false impressions said to have been created by the address from the prosecutor.

3. I identify first the basis of the alleged prejudicial submissions by counsel for the prosecution.  They relate, first, to submissions made by the prosecutor to the effect that the asset protection scheme involved in the establishment of Crossline Overseas Ltd and the transfer to it of various promissory notes totalling $32.4 million of debts by Barminco, later secured by a range of general securities over the assets of Barminco, Mr Sayers and Mr Bartlett and their associated companies was dishonest or criminal.

4. The second objection is that submissions were made to the effect that Mr Bartlett's income tax return for the year ended 30 June 1999 showed that his only income was $20,000 in the way of salary, derived from Bremerton or some other source, when in reality his income was very much greater.  This was said to be because evidence showed that nearly $2 million was credited to Bremerton in the initial set of management accounts for the 1999 year, and where it also emerges, from the evidence of Mr Thomson, that a wide range of items of personal expenditure by Mr Bartlett were met from Bremerton and later charged to his account, presumably his loan account, with that company.

5. It is also contended by the prosecution that the $108,558 distributed to Mrs Carol Bartlett, or Hancock, for the 1999 year is an example of dishonesty because she never saw any of that money and was unaware of the allocation or the income tax return.  That was complained of as an allegation of criminal conduct which is not charged.

6. I resume my attention to objections made on behalf of Mr Sayers.  The complaint here is that, insofar as there was a distribution of $453,000 to Cristy Sayers, his daughter, from the Sayers Family Trust as income from the 1999 year, the evidence shows that she did not receive that money, that she did not pay tax on it and that all she actually received was $900.  This, it was submitted, constituted an example of dishonesty, lack of transparency and similar discreditable conduct by Mr Sayers.

7. Now, the objection to this on Mr Sayers' behalf is that there is nothing illegitimate in the process which he followed.  There is nothing to show that there was any misappropriation of moneys due to Ms Sayers.  The fact that it did not go into her hands does not affect its character as income nor her liability to pay tax, and that she may in all the circumstances, still have a claim against the company for that amount of money and, for all that we know, it stands to her credit in some loan account within the company.  The submission is that that possibility or probability should not be ignored or assumed not to exist because there has been no investigation of that aspect of the case.

8. There are some points in these various criticisms.  The various transactions are capable of construction, interpretation or evaluation in different ways.  It is significant that, since the case was opened and progressed, both accused have squarely put their characters in issue and have adduced extensive character evidence to show that they enjoy high reputations within the community.  The witnesses who spoke for them have said that they are conspicuous examples of public duty, honesty and transparency, and yet the prosecution is pointing to transactions which it submits do not fit, or do not fit well, with the profiles represented.

9. It seems to me that by putting their characters in issue each accused has opened up avenues for attack on that character.  Whether the attacks which have been made can be sustained or not, or should be accepted, are matters for eventual determination in the case.

10. I consider that it will be necessary for me to make some observations to the jury about these various matters when I come to direct them, but I do not consider that anything has happened which makes the continuation of this trial prejudicial or would result in a miscarriage of justice or unfairness.

11. These matters can be the subject of appropriate attention, if not by counsel for the accused then by directions which I will ultimately have to give.  I do not consider that I should discharge the jury.

12. As to whether or not I should give further directions at this point, I consider that that would be premature.  I do not know exactly how the cases are to be put on behalf of each accused.  I consider that a series of directions anticipating what may, or may not, come would be, if not perilous, at least unwise.  So I do not propose now to give any further directions.  It follows that we will proceed with the trial.