R v Bartlett [No 16]
[2014] WASC 354
•26 SEPTEMBER 2014
R -v- BARTLETT [No 16] [2014] WASC 354
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 354 | |
| 26/09/2014 | |||
| Case No: | INS:107/2012 | 28 AUGUST 2014 | |
| Coram: | EM HEENAN J | 28/08/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | No specific direction with regard to prosecution onus to disprove mistaken belief under s 9.1 or 9.5 required | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN PETER MERVYN BARTLETT RONALD GEORGE SAYERS |
Catchwords: | Criminal law Criminal Code (Cth) Conspiracy to cause loss by dishonest means to Commonwealth entity s 135.4(3) Whether an evidential onus on accused to raise mistake s 9.1, s 9.5 and s 13 Whether direction by judge that prosecution has an onus to disprove mistaken belief beyond reasonable doubt required |
Legislation: | Criminal Code (Cth) |
Case References: | Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100 Miles v The State of Western Australia [2010] WASCA 93 R v Khazaal [2012] HCA 26; (2012) 246 CLR 601 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
PETER MERVYN BARTLETT
First Accused
RONALD GEORGE SAYERS
Second Accused
Catchwords:
Criminal law - Criminal Code (Cth) - Conspiracy to cause loss by dishonest means to Commonwealth entity - s 135.4(3) - Whether an evidential onus on accused to raise mistake - s 9.1, s 9.5 and s 13 - Whether direction by judge that prosecution has an onus to disprove mistaken belief beyond reasonable doubt required
Legislation:
Criminal Code (Cth)
Result:
No specific direction with regard to prosecution onus to disprove mistaken belief under s 9.1 or 9.5 required
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):
Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100
Miles v The State of Western Australia [2010] WASCA 93
R v Khazaal [2012] HCA 26; (2012) 246 CLR 601
1 EM HEENAN J: At the completion of counsel's addresses yesterday, I sat in the absence of the jury to hear various submissions from counsel about matters which should or should not be raised in the course of my direction to the jury. I will formulate the direction to the jury in relation to the submissions which I received on that occasion and, insofar as warnings as to the significance of Mr Thomson's evidence may be concerned, the use which may be made of character evidence, the propriety of certain submissions made in relation to the character of the accused on behalf of the prosecution, and other associated matters, the results of my determinations will emerge from the directions which I will in due course give.
2 There was one separate and distinct matter which, however, requires special mention and attention. It is that submissions have been made by counsel for both accused that the jury should be directed, by reason of the provisions of s 9.1 and s 9.5 of the Criminal Code (Cth) that the prosecution has an onus to disprove the existence of a mistaken belief by the accused or ignorance of certain facts which negates any fault element applying to the physical element of the particular charge or, in the case of s 9.5, that at the time of the conduct constituting the offence the particular accused was under a mistaken belief about a proprietary or possessory right and the existence of that right would negate a fault element for any physical element of the offence.
3 Both counsel for the accused contended that directions incorporating those provisions should be made. I think I may fairly say that the submissions went as far as suggesting that it was essential that such directions be given. Counsel for the prosecution, on the other hand, submitted that neither of the sections was engaged or that if, contrary to those submissions, s 9.1 was engaged, there was no evidential basis for this being addressed or any for such a direction given because nothing in the evidence gave rise to the need to rebut such a defence.
4 Can I say at the outset that I consider that s 9.5 has no application to the matters here under consideration. The charge of conspiracy alleged against these two accused is not an offence which has a physical element relating to property and, consequently, I do not accept the proposition that any direction in relation to a claim of right is appropriate or necessary.
5 In view of these submissions, it is necessary to identify what is the physical element of which there may be a fault element other than negligence in this case. The charge being conspiracy, the physical element is the agreement constituting the alleged conspiracy and the fault element is the dishonest intention; that is, the intention to join the conspiracy and the intention that it be carried out so as to dishonestly cause a loss to a Commonwealth entity. The intention component has that dual characteristic, as I will explain in due course to the jury when dealing with intention.
6 The question, therefore, is whether or not at the time of the alleged agreement either of the accused was under a mistaken belief about or ignorant of facts and that that mistaken belief or ignorance would negate any fault element applying, namely the dishonest intention.
7 The submissions invoke s 13.3 of the Criminal Code (Cth) relating to the evidential burden of proof on the defence. By s 13.3(3), the statute provides that:
A defendant who wishes to rely on any exception, exemption, excuse … bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
- and (4):
The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
and (5):
The question whether an evidential burden has been discharged is one of law.
9 As to that matter, there is no evidence in this case of any kind as to the actual belief of either accused in relation to that matter. Neither accused has given evidence but extensive statements provided by the accused were delivered to the authorities at various stages in the course of the investigations. In these statements it is said quite explicitly that neither accused can remember any such meeting taking place in June or for that matter, September, and that the accused has no recollection of the proposed resolution or of the issue of special units which created the accruing liability for interest.
10 Their position as stated in those statements and in correspondence from their solicitors to the authorities at various stages is that although they have no recollection of these matters, they would never have signed a false document, that they were in the habit of trusting experienced and established advisers and relying upon them and that, in any event, these particular documents were very complicated and that it is unlikely that they would have understood them.
11 None of that amounts to any evidence asserting or pointing to the existence of a particular belief that the documents were signed under a mistake, that they were a replacement for some document which had been lost or the need to document something which had occurred but which had gone undocumented. So it is in that setting that the submission that a direction under s 9.1 should be given has been advanced.
12 I should say some more to identify the grounds upon which counsel for the accused support the claim for such a direction. They point to various passages in the evidence in which two witnesses, Mr Thomson and Mr Hewitt, have made observations to the effect, in Mr Hewitt's case, that he was at a meeting, not on his evidence the signing meeting, when there was a statement by Mr Dunn, in the presence of the accused, that Mr Thomson should find 'that minute' or 'that resolution' or words to that effect, implying the existence of some anterior document recording the scheme which Dunn had at the time been describing, on Hewitt's version, upon the whiteboard present at that meeting.
13 Mr Thomson, on the other hand, says that there was only one whiteboard meeting and that it was not that one. It was a later meeting at which Hewitt was not present and at which he, Dunn, Bartlett and Sayers were the only ones present. He was cross-examined extensively about what happened at that meeting and what he said about it on a previous occasion - namely, the previous trial - regarding the possibility that some similar phrase may have been said in words by Dunn, to the effect that he, Thomson, 'should find that minute' or 'would have to find that resolution'.
14 At this trial Mr Thomson has denied that that was said, but he has acknowledged that words to that effect were said by him on a previous occasion in circumstances in which he says he was confused and that that was not what he intended. But assuming for the moment that this is a sufficient basis to constitute some evidence by Mr Thomson that words to that effect were said to him or that it is possible that they were, the question is whether that, either alone or in combination with the evidence of Mr Hewitt, which I have mentioned, amounts to the discharge of an evidential burden by the accused within the meaning of s 13.3(4), giving rise to a legal burden on the prosecution to disprove such a mistaken belief necessitating such a direction. I will come back to that later.
15 The question of whether or not directions relating to the need for the prosecution to disprove beyond reasonable doubt the existence of a mistaken belief about facts likely to negate a fault element has been discussed in a number of authorities which I will in a moment identify. It is important, however, to appreciate that s 9.1(2) provides that in determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances. In the setting in which I have described, in which the counsel for the accused submit that such a direction should be given, there is very little basis to consider whether or not such a belief was reasonable in the circumstances, but that is a question which I need not pursue.
16 The cases to which I have been referred are R v Khazaal [2012] HCA 26; (2012) 246 CLR 601, the decision of the Court of Appeal of this court in Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100, and an unreported decision of the Court of Appeal Miles v The State of Western Australia [2010] WASCA 93. I will not set out the facts or details of those decisions. They have been canvassed in argument and are available.
17 In Khazaal in the judgment of French CJ, which was to the same effect as the other judgments, his Honour says at [8]:
Some defences must be negatived by the prosecution as part of establishing the commission of the offence. In such a case the accused does not have to point to evidence capable of raising the defence. There are other defences which are not lawfully available to the accused unless there is evidence capable of supporting them. In such a case the accused is said to bear the evidential burden.
18 His Honour then goes on to identify how that burden arises and how it is discharged. Further comprehensive statements of the burden and how it is discharged are to be found in the joint judgment of Gummow, Crennan and Bell JJ at [74] - [78] and in the judgment of Heydon J at [99] - [101], especially at [100].
19 Now, in this present case the fault element which has to be established by the prosecution is dishonest intention, as I have already said. That must be established beyond reasonable doubt and by establishing that, if it can, the prosecution must in the process eliminate any basis upon which it could be said or thought that no such intention existed. So I am satisfied that this is a case in which the accused does not have to point to evidence capable of raising the defence because the defence - that is, the absence of dishonest intention - must necessarily be negatived by the prosecution, and for that reason no such direction as sought is required or appropriate.
20 The same conclusion emerges from Bahar, in particular in the judgment of McLure P at [18], [23] and [24]. There her Honour drew upon the earlier judgment of the Court of Appeal in Miles where the same approach was taken.
21 Therefore, if in the process of establishing the commission of the alleged crime the prosecution demonstrates the existence of the requisite intention to defraud, that is the intention dishonestly to cause a loss to the Commonwealth, there can be no separate requirement to rebut the existence of a mistaken belief that the document or documents were the replacement of lost documents or were to record for the first time something which had in fact occurred in June 1999. For that reason I will decline to give such a direction.
22 That is not entirely the end of the matter, because it leaves the potential significance of this contention that there may have been some honest belief by the accused that the document which was being put before them was, in fact, a replacement for a document which had been lost or, as I have said, a document which recorded for the first time something which, in fact, had occurred or been resolved in 1999.
23 As to that, there is simply no evidence that there was any positive belief by either accused to that effect and I do not consider that the evidence which has been identified is sufficient to raise a foundation that there did exist such a positive belief. However, it is not altogether unimportant because the defence of the accused is that, in some way which they do not remember or do not understand, or were never conscious of, they were misled into signing those particular documents. Whether one of the methods by which they were misled was some representation, if it occurred, that the documents were simply replacing an earlier document which had been lost or that they were recording, for the first time, a resolution which should have been recorded in 1999 but was not, remains a possibility. But they are no more than possibilities and there is nothing to support the existence of a positive belief by either accused that that was the case. I will direct the jury accordingly.
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