R v Beare - [2011] SADC 157

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BEARE
[2011] SADC 157
Reasons of His Honour Judge Beazley
17 June 2011
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
Submission by accused that no case to answer on Count 1 of the Information laid against the accused.
Held: no case to answer on Count 1.
R v Bilick and Starke (1984) 36 SASR 321, 327; R v Brady and Smythe (2005) 92 SASR 135; Criminal Law Consolidation Act (1935) s 251; Corporations (South Australia) Act (1990) s 131; Masters v Cameron (1954) 91 CLR 353, referred to.

R v BEARE
[2011] SADC 157
Introduction

The accused was charged on Information with two counts of Abuse of Public Office contrary to s 251(1) of the Criminal Law Consolidation Act, 1935.
At the close of the prosecution case a submission of no case to answer was made by the accused, Mr Beare, in respect of Count 1 on the Information. That submission was that as a matter of law there is no case to answer in respect of that count.
The submission involves some difficult questions of law, and in particular when it is that an individual acquires in equity an interest in certain property rights. No submission was made in respect of Count 2 on the Information. These brief ex tempore reasons therefore only concern Count 1 on the Information.
The principles of law in respect a no case submission
The prosecution case against the accused in count 1 is based upon circumstantial evidence. The principles dictating whether there is a case to answer when an element of the charge is sought to be proved by circumstantial evidence was set out in R v Bilick and Starke (1984) 36 SASR, 321. At page 337, King CJ said:
‘The case against the appellant Starke was circumstantial in character. The same test is to be applied in deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus, and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind.
Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: on the assumption that all the evidence of primary fact considered at its strongest, from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing, in the mind of a reasonable person, satisfaction, beyond reasonable doubt, of the guilt of the accused? That, it seems to me, was the question which the learned trial judge was required to answer in deciding on the submission of a no case to answer.’
Those principles were recently affirmed by the Court of Criminal Appeal in the case of R v Brady and Smythe (2005) 92 SASR, 135. Duggan J, on behalf of the Court, said at pp138-139 that:
‘It is fundamental to a trial by jury that the law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction, then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of the law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts…The question at this stage of the case is whether the prosecution evidence is capable of supporting a conclusion of guilt beyond reasonable doubt, and that’s a question of law’.
The nature of the charge in Count 1
Section 251 of the Act provides:
(1)    A public officer who improperly—
(a)    exercises power or influence that the public officer has by virtue of his or her public office; or
(b)   refuses or fails to discharge or perform an official duty or function; or
(c)   uses information that the public officer has gained by virtue of his or her public office, with the intention of—
(d)   securing a benefit for himself or herself or for another person; or
(e)    causing injury or detriment to another person, is guilty of an offence.
Penalty: Imprisonment for 7 years.
(2)     A former public officer who improperly uses information that he or she gained by virtue of his or her public office with the intention of—
(a)     securing a benefit for himself or herself or for another person; or
(b)    causing injury or detriment to another person, is guilty of an offence.
Penalty: Imprisonment for 7 years.
The word “improperly” is separately defined in s 238 of the Act which provides:
(1)     For the purposes of this Part, a public officer acts improperly, or a person acts improperly in relation to a public officer or public office, if the officer or person knowingly or recklessly acts contrary to the standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by public officers of the relevant kind, or by others in relation to public officers or public offices of the relevant kind.
(2)     A person will not be taken to have acted improperly for the purposes of this Part unless the person's act was such that in the circumstances of the case the imposition of a criminal sanction is warranted.
(3)     Without limiting the effect of subsection (2), a person will not be taken to have acted improperly for the purposes of this Part if—
(a)    the person acted in the honest and reasonable belief that he or she was lawfully entitled to act in the relevant manner; or
(b)    there was lawful authority or a reasonable excuse for the act; or
(c)    the act was of a trivial character and caused no significant detriment to the public interest.
(4)    In this section—
"act" includes omission or refusal or failure to act;
"public officer" includes a former public officer.
Prior to the commencement of the trial I heard extensive submissions as to the particulars alleged in Count 1, and as to the admissibility of certain evidence of the plaintiff’s alleged conduct both prior to the date of the alleged office, and indeed well after what was said to constitute the actus reus of the offence in Count 1.
As can be readily observed s 251 of the Act contains three quite distinct charges in sub-sections 251(1):
(a) “exercising power or influence”;
(b) refusing or failing to discharge an official duty and, relevantly,
(c)using information improperly that the public officer had gained by virtue of his public office, in the subject case, with the intention of securing a benefit for himself or another person.
In particular, no charge was laid pursuant to s 251(1)(a) that the accused had exercised power or influence, despite the fact that a great deal of the voluminous documentary evidence concerned the conduct of the accused after what was said to constitute the actus reus of the subject charge; and undoubtedly suggested the exercise by the accused of such “influence” of employees of the Council.
The charge laid in Count 1 was that of an alleged breach of s 251(1)(c) only. I made various rulings as to the admissibility of that large number of documents as being relevant to the question of the alleged “improper” use of information by the accused.
In that count the prosecution had contended that the accused, being a public officer, had improperly used information that he gained by virtue of his public office as CEO of the Light Regional Council with the intention of securing a benefit for himself or another person.
The particulars of the charge in Count 1 were somewhat refined by the Prosecution during the Rule 9 hearing.
In essence the Prosecution had alleged that the accused as CEO of the Light Regional Council had gained information by virtue of that role which information had identified 3 parcels of land at Kapunda – the Switala land; the Mattchoss land and the Hentschke land – and that he had used that information that those lands would be ripe of subdivision to acquire an interest in a company Aqua Reef Pty Ltd which had acquired those three parcels of land.
Ultimately when the trial proceeded, the Prosecution opened its case upon the basis that the accused as the CEO of the Light Regional Council had been involved in a study commissioned by the Council from a planning consultancy company Kellogg Brown and Root (KBR) which had commenced its consultancy in 2003.
It was alleged by the Prosecution that the accused “had access to the various drafts of the study which were created in 2004 and 2005 and which identified specific areas in Kapunda for potential development. It was asserted that the material in that report was not known to the public until 15 March 2005. In consequence of having refined its particulars during the Rule 9 hearing, the Prosecution, relevantly, had restricted the particulars of the actus reus to 22 September 2004. That is its case was that the accused had secured for himself in consequence of the use of information gained by him as a public officer a benefit by no later than 22 September 2004, the date when a company, Aqua Reef Pty Ltd was incorporated and the accused was formally allotted a 10% shareholding and was appointed a director.
The relevant date for the receiving of the benefit was therefore fixed as at 22 September 2004. As will be seen thereafter while the Prosecution initially asserted that the accused had gained the subject information over a period during 2003 and 2004, ultimately it asserted that the accused had obtained the relevant “information” on 15 September 2004, just 7 days before the alleged date of securing the alleged benefit.
The elements of the charge
The offence of abuse of public office in s 251 of the Criminal Law Consolidation Act consists of some five elements, and, as described hereafter, the fifth of those elements itself contains some six sub-elements. It is not an easy section to construe.
1.That the accused was, at the time of the first count - a public officer.
2.That the accused obtained information by the time of the first count which he had obtained by virtue of his public office.
3.That the accused on the occasion of the first count used the information which he had obtained by virtue of his public office.
4.That the accused so used that information, which he had obtained by virtue of his public office, intending to secure a benefit for himself or another person from the use of that information.
5.That when using the information in the manner outlined in element 4 above, the accused, being a public officer, used that information improperly.
The word “improperly” has been specifically defined by the law and for relevant purposes is as follows:
(1)     … a public officer acts improperly … if the officer … knowingly or recklessly acts contrary to the standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by public officers of the relevant kind.
However:
(2)     a person will not be taken to have acted improperly unless the person’s act was such that in the circumstances of the case the imposition of a criminal sanction is warranted.
(3)     Without limiting the effect of (2):-
a person will not be taken to have acted improperly, if
·the person acted in the honest and reasonable belief that he or she was lawfully entitled to act in the relevant manner;
or
·there was lawful authority or a reasonable excuse for the act; or
·the act was of a trivial character and caused no significant detriment to the public interest.
Accordingly, as to this fifth element, the prosecution must satisfy the jury that:
5.1In using the confidential information that he had allegedly obtained by virtue of his public office as the CEO of the Council, with the intention of securing a benefit for himself or another person in the manner asserted by the Prosecution, the accused acted contrary to the standards of propriety generally and reasonably expected by ordinary, decent members of the community to be observed by CEOs of a council.
It is for the jury as ordinary decent members of the community to determine what is “improper” having regard to reasonable contemporary standards.
5.2the accused either knew that he was acting improperly, or alternatively was reckless in acting improperly in the manner described in 5.1 above.
Therefore in respect of this sub-element the Prosecution must prove that the accused acted contrary to the standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by CEOs of a council, and that he knew that he was doing so or that he realised that it was more probable than not that he was doing so but he went ahead and used that confidential information in the manner described anyway.
5.3the improper use of that information is such that in the circumstances of the case, having regard to the responsibilities of a CEO of a Council: the public trust in the office of CEO as aforesaid; and the nature and extent of any departure from that public trust, it warrants the imposition of a criminal sanction.
Parliament has recognised that there are degrees of “impropriety” in respect of the use of confidential information by a person in the position of the accused. For the purpose of this case the improper use of such information must be so far below the reasonably acceptable standards expected of a CEO of a Council such as to warrant a criminal sanction.
Therefore, the Prosecution must satisfy the jury beyond reasonable doubt that the conduct of the accused, in using confidential information improperly with the intention of securing a benefit for himself or for another person, is such a serious departure from the standards of propriety generally and reasonably expected by ordinary, decent members of the community of CEO’s of a Council that it should attract a criminal sanction. This is to be contrasted with less serious forms of impropriety which may or may not give rise to civil proceedings.
5.4the accused did not act in the honest and reasonable belief that he was lawfully entitled to so use the information.
5.5the accused did not have lawful authority nor a reasonable excuse for having so used the information.
5.6the use by the accused of the said confidential information was not trivial and did cause significant detriment to the public interest.
For the purposes of this argument, almost all of the elements and sub-elements are not in dispute. In this case, as I have noted, there had been voluminous documents tendered. A large number of witnesses had given oral evidence much of which was directed to whether the accused’s conduct was “improper”. As it will be clear from what follows, much of that can be put to one side for the purposes of this argument.
In order to understand the submissions it is necessary to set out the basis of the prosecution case. As I have said there was a great deal of evidence called by the Prosecution over many weeks of sitting time. It would be of little assistance to summarise that evidence in respect of Count 1. The case in a general sense is that whilst employed as CEO of Light Regional Council, the accused became aware of the council instigating a process whereby, in the future, land within the council area may be re-zoned with the permission of the Minister of Planning. By the close of the Prosecution case it was obvious that the evidence of the Prosecution witnesses had differed somewhat from the opening. There was no longer any suggestion that there was anything in any of the draft reports from KBR until 15 September 2004 which could have constituted the “relevant information” as to the identification of the three parcels of land.
The accused submitted that the prosecution has, as a matter of law, failed to prove any of three distinct elements; namely those in elements 2, 3 and 4 above. They are respectively, firstly, that the accused had obtained the subject information that the parcels of land were ripe for subdivision by virtue of his public office; and secondly that he had used the information which he had so obtained, and finally that he used it intending to secure a benefit for himself or another person.
In essence the accused submitted that he had already been aware that the parcels of land were ripe for subdivision well before 15 September 2004, because he had already entered into a joint venture to buy those parcels. The “information” that the parcels were ripe for subdivision was obvious to anyone who had viewed those parcels, and his decision and that of his joint venture partners had nothing to do with any confidential information. In any event the information “gleaned” by him allegedly on 15 September 2004 was not confidential, and in any event had come to the accused well after he and his partners had embarked upon the purchase of that land. Finally he submitted that he did not secure a “benefit” from the use of that information because he had in equity already acquired his interest in the land well before 15 September 2004.
There was indeed, even as at that latter date, a doubt as to whether the KBR report of that date contained the relevant maps which identified that subject land.
However for the purpose of this submission I must accept the Crown case at its highest including the inference that the land was so identified on 15 September 2004.
Thus the refined Crown case was that information was “gained” by the accused on 15 September 2004 when a report on that day identified the above 3 parcels of land at Kapunda, from which information it could be inferred that, in the future, the Council might itself consider seeking approval from the Minister of Planning for an amendment to the Council’s plan so as to change the relevant zone from “rural” to “residential”.
I accept, for the purposes of the argument, as one must, that it did contain such information on 15 September 2004, and that it was “information” of a type envisaged by the section.
There is no doubt that the company, Aqua Reef Pty Ltd, was incorporated that is, registered, on 22 September 2004. It is clear that on 22 September 2004 the accused was allotted 5per cent of the shareholding, in that company and that his wife was allotted a further 5per cent. The inference on those isolated facts would be overwhelming, that the accused had acquired those shares in consequence of the receipt of the “information” one week earlier.
However the evidence was not so isolated. On the Crown’s own case there can be no dispute that well before the confidential information, on the Crown case at its highest, was obtained by the accused on 15 September 2004, the promoters of Aqua Reef Pty Ltd had identified without any such information, and had entered into negotiations for the purchase of, the subject blocks of land from all three vendors. That is the very parcels of land ultimately which were later identified and ear-marked for possible future rezoning, on 15 September 2004.

The undisputed evidence is that all three parcels of land had already been identified by the promoters of Aqua Reef Pty Ltd, and were the subject of long periods of negotiation well before 15 September 2004. Indeed, one contract was signed on 28 August 2004, another signed on 16 September 2004, one day after the alleged confidential information, and one sometime later. There is no doubt that the accused had no involvement at all in the negotiations, nor the identification of the subject parcels of land.
The contracts, for the sale of land were entered into by the promoters as pre-incorporation contracts on behalf of Aqua Reef Pty Ltd which company had not yet been incorporated. That is, it had been indentified as the purchaser much earlier than 15 September 2004, and the only reason why it had not been executed by Aqua Reef Pty Ltd was that there was some delay in registration. It was purely fortuitous that the delay in registration occurred.
Further there is no doubt on the evidence that the accused had reached agreement with the other promoters of the company, two of whom were clients of his accountancy practice by at the latest, in early September 2004 for his shareholding in the venture, that is well before 15 September 2004.
It might be thought that the circumstances are suspicious given the coincidence of the land being purchased while the KBR study was being undertaken. It was however clear that none of the promoters, who gave evidence in this case, could be said to fall within the accused’s camp. Indeed, some were hostile towards the accused blaming him for having caused them to lose certain valuable contracts within the council. All of them finally conceded that the accused had entered into the joint venture well before 15 September 2004, that he had no input into their purchase of the subject parcels, and that but for the need to register the company, the joint venture was in place with all terms agreed well before 15 September 2004.
It was one of those joint ventures partners Mr Patiniotis, who had identified the land in all three locations without any input from the accused. The accused had heard of the purchases because of his role as accountant for two other of the promoters not in his position as CEO.
It was obvious to all of the witnesses that the subject land would be likely to be the subject of a change of use in the future because of its location, abutting existing residential land, and there was an obvious need for more residential blocks to cater for the increased population. All of the witnesses made it clear that the KBR report was irrelevant to their interest because it was obvious that the land would eventually be rezoned.
Indeed the Aqua Reef promoters had made application to the council for subdivision of some of the subject land on 20 September 2004, that is before the incorporation of Aqua Reef Pty Ltd, and before any rezoning was contemplated. That is to say that the question of rezoning was not in their minds on 20 September 2004. Council did not have the report in a final form until 15 March 2005. It would be some time after that meeting that Council would be in a position to make a recommendation to the Minister of Planning. Certainly as at 20 September 2004, the question of future rezoning was irrelevant. The accused submitted that it could not be said that he gained “information” on 15 September 2004 which was used by him.
Ultimately the accused submitted that putting to one side all of those matters it could not be said that he had used the information to secure a benefit. He had already secured his interest in early September 2004 when the joint venture was entered into.
That question which arose in this case for me to determine is: what was the effect of those joint venture arrangements entered into by the accused and the promoters? Insofar as the joint venture arrangement was binding prior to 15 September 2004, had the Prosecution excluded the reasonable possibility that the accused had already secured his “benefit” well before 15 September 2004.
The accused has submitted that the evidence is undisputed; that is that prior to 15 September 2004 the accused had reached agreement with the promoters to acquire effectively a 10per cent interest in the land, acquired or to be acquired by Aqua Reef.
The accused had recommended that the joint venture be operated within a corporate vehicle, namely Aqua Reef Pty Ltd. Indeed, a letter of promotion for Aqua Reef dated 27 August 2004, Exhibit D19, disclosed that Aqua Reef had been in contemplation since August 2004, and the latter noted that the proposed company had authorised Mr Patiniotis to execute the contract with one of the parcels of land on 28 August 2004.
The Prosecution again points in this case to the very short period of time between purchases of land and the incorporation of Aqua Reef. This, with respect, seemed to be a submission of last resort.
During submissions I raised the question as to whether in fact it was a matter for the jury to determine when it was that those arrangements had been entered into. The fact is however that there was no doubt on the evidence of all of the Prosecution witnesses that the parties to the joint venture had reached agreement in every respect by at the latest, early September 2004. The land had actually been identified and all of the terms of the agreement had been reached, including the proportions in which each individual would hold the assets - in this case a 10 per cent share for the accused’s family - and the price itself was also agreed of $100,000. In those circumstances, all the terms of the joint venture agreement had been agreed between the parties, in early September 2004. The delay to 22 September 2004 was caused by the administrative delays associated with the registration of Aqua Reef Pty Ltd. It was only by chance that the incorporation of the company had occurred after 15 September 2004. It had all been put in place before the alleged information came to the accused on 15 September 2004.
The accused, prior to 15 September 2004, had already “secured the benefit” to the land for himself. The relevant land had already been identified and had been the subject of contract or negotiation well before 15 September 2004.
The DPP submits that there was a seven day gap between the receipt of the identified information on 15 September 2004 and the incorporation of Aqua Reef which involved the formal allocation of shares.
The submission of the DPP was that it was only on 22 September 2004 that the accused secured the benefit; that is, the shares were allocated to him in that small window between 15 September 2004. As an alternative submission, it was put that between 15 September and 22 September 2004 the accused had an obligation - a duty, as it were - not to take up the shares having been made aware of the information of 15 September 2004.
For the reasons which I will explain in a moment, that last submission cannot be accepted.
In my opinion, while that submission does have superficial merit, it does overlook the fact as to the effect of the subsisting pre-existing agreement between the joint ventures at the earlier time in September 2004 and which involved the later registration of the company.
I commenced these submissions this morning by asking a series of questions: firstly, was it undisputed that Mr Patiniotis had identified the three holdings; namely, the Switala, Mattchoss and Hentschke parcels in August 2004. They were the target of the joint venture established in August or early September 2004. There is no doubt on the evidence that that was the case. Secondly, was it undisputed that the accused had no input into the choice of land or any negotiations in respect of the same. Again, the evidence is clear in that respect.
The question whether the agreement to a joint venture was entered into prior to 15 September 2004 was an issue in dispute, but only to the extent in the submission of the DPP that the formal acquisition of shares did not occur until the shares were allotted on 22 September 2004.
The question for me to determine at this stage is whether there is evidence capable of supporting at law that the accused gained and used information on 15 September 2004 intending to secure a benefit for himself or another person. It is not a question of whether the accused had acted improperly in any other way. I repeat one matter which is of some significance is that on 20 September 2004 an application was lodged on behalf of the beneficial owners of the land - that is to say the promoters including Mr Beare, prior to the incorporation of Aqua Reef - for the subdivision of land which had been purchased on 16 September 2004. That is to say, a subdivision of the rural land. That is something different from re-zoning. It is a subdivision while it remains rural, which was proceeded with by the promoters on 20 September 2004. They did not wait for or anticipate rezoning.
All three parcels of land had been identified in, at the latest, the month of August 2004 and without the benefit of any such KBR information.
As a matter of law, we know there were two contracts for the purchase of the subject land entered into by the promoters, one on 28 August 2004, the second on 16 September 2004.
They were entered into without any knowledge of the alleged confidential information.
Section 131 of the Corporations Act at the relevant time provided that if the company did not become registered or did not at that time bind itself or ratify itself of those contracts, the parties who signed the contract would have been liable on it. The question is, therefore, whether prior to 15 September 2004 there had been an agreement in place.
The promoters themselves would have been liable on those contracts. They expected the joint venturers to put them in funds to settle on those contracts.
In Masters v Cameron (1954) 91 CLR 357, the High Court said at [9].
Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by way of formal contract, the case may belong to any of the three cases’. The first two are of relevance in this case: ‘It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance to one or more of the terms conditional upon the execution of a formal document.
In this particular case, save for the question of the exact date that agreement was reached between the promoters including Mr Beare, the evidence is without doubt that in fact there had been an agreement reached between the parties which identified all the terms, relevantly how much money was to be paid, the land to be sought after and the portion to be ascribed to each promoter.
Conclusion
There is no doubt that the evidence given by the witnesses was somewhat vague and quite difficult to follow. In the ordinary course of events, it would be a matter which one would properly leave to the jury.
The elements of the charge however, are extremely complex and it would be very difficult for a jury, even properly instructed, to fully comprehend some of the them.
As a matter of law, in my opinion, it is an inevitable conclusion that, a binding agreement was entered into between the promoters by no later than early September 2004. That is to say, before 15 September 2004, Mr Beare was bound by the joint venture agreement, to the acquisition of 10 per cent interest, and to pay the purchase price of $100,000. What happened on 22 September 2004 was no more than giving effect to an agreement which had already been reached, the carrying into effect of the terms of the agreement.
That then leaves the question whether the prosecution with its case at its highest has established an element of the charged offence in Count 1 namely, did the accused use “information” acquired on 15 September 2004 with the registration of Aqua Reef Pty Ltd to secure a benefit for himself; or another?
As a matter of law, he had already obtained that interest in early September 2004. Nothing had changed. The shares which were issued on 22 September simply gave effect to the pre-existing agreement.
I don’t accept, as I say, that the element of that charge is satisfied by saying that the acquiring of the benefit was the issuing of the shares on 22 September 2004. The accused had already acquired the benefit, pursuant to the terms of the pre-existing and binding joint venture agreement reached earlier.
I also don’t accept that the section envisages the requirement that the accused was obliged to stand aside, as it were, or withdraw from the arrangement after 15 September. That may well be true as a matter of law in relation to some other charge or some breach of civil law but it doesn’t touch upon this particular element, which needs to be proved.
I am reluctant to withdraw from a jury a charge such as this in Count 1. However, where, as in this case, the evidence points only one way, in those circumstances it would be an error to simply leave that to the jury to determine.
For these brief reasons I cannot conclude that as a matter of law the prosecution has satisfied or could satisfy the jury that by the acquisition of information on 15 September 2004 the accused used the information to secure a benefit.
Whatever might be said about his conduct after the event, the fact of the matter is he had already secured that benefit and nothing changed after 15 September 2004.
In those circumstances it seems to me that I have no alternative but to direct the jury accordingly and direct them as a matter of law there must be a verdict of not guilty in relation to count 1.