R v Cowley

[2015] QCA 67

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cowley [2015] QCA 67

PARTIES:

R
v
COWLEY, Robert Alexander
(appellant)

FILE NO/S:

CA No 83 of 2014
DC No 409 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Miscellaneous Application – Criminal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2015

JUDGES:

Margaret McMurdo P and Holmes and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring to the orders made

ORDERS:

1.   The application for leave to adduce evidence is refused.

2.   The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of fraud, with the aggravating circumstance that the property concerned was of a value of more than $30,000 – where the appellant described himself as the “non-executive chairman” of a company – where the appellant dishonestly induced the representative of an investor to deliver €100,000 to the company between 9 September 2008 and 16 October 2008 – where the appellant represented that the capital investment would be repaid on the maturity date – where the appellant used pseudonyms to falsely represent that there were additional employees of the company – where the appellant argued that the jury could not reasonably have found that he had a dishonest intent within the period charged – where the appellant argued that the arrangement with the investor was governed by an earlier agreement – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – where the appellant was convicted of one count of fraud, with the aggravating circumstance that the property concerned was of a value of more than $30,000 – where the appellant sought to adduce a large amount of documentary material on appeal – where the documents included emails and internet posts described as vexatious; documents establishing the appellant’s bona fides; documents said to go towards the use of pseudonyms; and documents said to be relevant to the appellant’s dealings with the investor’s representative – where the appellant argued that the material was not available at trial because it was either at his home in Melbourne; in an encrypted form provided by the police; or overseas – whether the evidence was available at trial – whether the evidence was relevant, authentic and cogent – whether leave should be granted to adduce the evidence

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, applied

COUNSEL:

The appellant appeared on his own behalf
M R Byrne QC for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P:  I agree with Holmes JA’s reasons for refusing the application for leave to adduce evidence and dismissing the appeal against conviction.

2. HOLMES JA:  The appellant was convicted of fraud, with the aggravating circumstance that the property concerned was of a value of more than $30,000.  The count of which he was convicted alleged that between 9 September 2008 and 16 October 2008, he dishonestly induced a Mr Allen to deliver bank funds to Dresdner Bank Luxembourg SA.  He appeals his conviction on the ground that the verdict was unreasonable or unsafe and seeks leave to adduce further evidence.

   The appellant’s first dealings with Mr Allen – the Prasadam AMA

3. Mr Allen gave evidence that in mid to late 2008, the appellant had been introduced to him as the “Chief Operating Officer” of a company, Investment Suisse.  The two discussed the prospect of a company with which Mr Allen had some association, Prasadam Holdings Pty Ltd, introducing investors to Investment Suisse, their funds (with a minimum investment of €100,000 required) then to be managed and invested by the latter.  Mr Allen said that he was not a shareholder of Prasadam, although he was acting on its behalf in relation to the possibility of its becoming an agent for Investment Suisse.  To that end, Mr Allen signed a document titled “Private Placement Securities Asset Management Agreement” on behalf of Prasadam.  It became an exhibit, and its terms assumed some importance at trial and on appeal.  It is an odd document; it appears to have been drafted by someone with access to a legal dictionary, but not much knowledge of law.

4. Prasadam is described in the Asset Management Agreement as “the conduit”, and the recitals say that it “requests permission to introduce to the fund, capital it manages.”  The “fund” is the “St James Capital – Nr 4 Offshore Fund”.  The “conduit” acknowledges that investment involves risk and that there has been no “offering for specific investments”.  Somewhat cryptically, the Agreement states:

   “Governing regulations preclude by law, the offering of any guarantees, warranties, or other inducement, which might imply specific performance – therefore, the manager by law, cannot offer specific performance for earnings under this MAMA [the Asset Management Agreement].  Nonetheless, with historical knowledge of intended markets and weighted term or maturity baskets, the fund is hopeful, the risk/reward ratio, will provide above average earnings.”

   (The emphasis and comma placement are as they appear in the original document.)  The Agreement provides that the fund manager “ipso facto” (although no fact is identified) is not liable for “losses or perceived losses, including but not limited to: legal actions, earnings below expectation – etal [sic]”.

5. The Asset Management Agreement contains a clause by which the trustee (Investment Suisse) agrees “within the provisions of the MAMA” to return the funds without diminution in three years unless they are earlier redeemed.  Investment Suisse is to obtain from the bank holding the funds a “Custodial Safekeeping Receipt” to be issued in the name of Prasadam or its client, at its direction.  The Custodial Safekeeping Receipt is to be marked “discountable, transferable or assignable” at the client’s discretion, and can be drawn on in full at maturity; Mr Allen said that the appellant explained to him that a Custodial Safekeeping Receipt was a tradeable document.  The Agreement, dated 10 September 2008, bears the purported signatures of T Aaron, as an authorised officer of Investment Suisse, the Trustee; J Alexander as an authorised officer of St James Capital, the Fund Administrator; and J Stewart-Mitchell as an authorised officer of Eagle Banque, the Fund Manager.  On 29 September 2008, “J Marshall – Compliance counsel” for Investment Suisse advised Mr Allen of the details of a “fiduciary bank account” with the account name “Euram Finance SA” at Dresdner Bank, to which contributions could be made.

   The Ananda Holdings investment

6. According to Mr Allen, nothing further came of the arrangement once the document was signed.  However, a new set of arrangements, resulting from discussions between him and the appellant, was made with a different company, Ananda Holdings Pty Ltd, in which Mr Allen was a shareholder.  The agreement was that Ananda Holdings would directly provide to Investment Suisse €100,000, which the latter would trade, providing a return of about 70 per cent per year.  The appellant informed Allen that he would receive a Custodial Safekeeping Receipt for the funds, which ensured that whatever occurred in the course of Investment Suisse’s trading, the capital would be returned intact.

7. On 25 September 2008, Mr Allen was emailed by Investment Suisse a template for a Custodial Safekeeping Receipt.  It contained this paragraph:

   “Without abrogation or derogation to the Identified AMA, this CSR shall form part and the depositor has granted permission to the Custodian, for the asset to be used until maturity, whereupon the asset may be redeemed by the depositor, or earlier as provided for in the AMA, upon the depositors presentation of this CSR, to the place for performance and endorsement being the custodian's counters.  Redemption requests must be directed first to the custodian's counters by email at: [email protected] Thereafter, duly authorised officers will countersign and endorse the redemption certificate, to enable unencumbered return of the asset to the depositor, under the terms and conditions of the AMA”.

8. An email chain over 13-15 October 2008 was tendered in evidence.  It commences with an email from Mr Allen asking for a blank copy of a “New Application and Accredited Investor Status form and Confidentiality agreement” so that Ananda Holdings could become a new client with Investment Suisse.  It is followed by a response from “T Aaron Compliance Office” for Investment Suisse, which indicates that a client agreement “which would precede our AMA” and accredited investor form are attached and asks whether a Custodial Safekeeping Receipt should be sent to Prasadam or Ananda Holdings.  Mr Allen answers that he will transfer €100,000 to “Euram Finance” at Dresdner Bank and that the relevant company name is Ananda Holdings Pty.  In response, “John Marshall” for Investment Suisse confirms that the Custodial Safekeeping Receipt will be issued in the name of Ananda Holdings immediately the capital is placed in the Euram Finance Dresdner Bank Luxembourg account, the details of which he provides.  That email, dated 15 October 2008, was copied to an email address which Mr Allen identified as belonging to the appellant (as to which there seems to have been no dispute).  Mr Allen understood Mr Aaron (or Aarons) and Mr Marshall to be employees of Investment Suisse; in fact they did not exist.

9. Mr Allen transferred the €100,000, equivalent to A$200,574, from an HSBC account in the name of Ananda Holdings Pty Ltd to the Dresdner Bank Luxembourg account.  (The appellant admitted that transfer at trial.)  The funds had been provided for Ananda Holdings’ investment by him and two other parties, one of them a Ms Nilsson, whose company, Neplusultra International Pty Ltd, was the other shareholder in Ananda Holdings.  Mr Allen received a Custodial Safekeeping Receipt under cover of an email.  It contained a provision similar to that in the draft, for redemption of the asset at maturity on presentation of the Custodial Safekeeping Receipt.  It purported to be executed by “T Aarons” and “J Stewart-Mitchell”, both as “Duly Authorised Compliance officer” for Investment Suisse.

   The emerald deal

10. In early 2009, Mr Allen was made aware, by the same man who had introduced him to the appellant, of a prospective borrower of funds at high return, the borrowings to be secured by an emerald, supposedly known as the “Thomas Emerald”.  Mr Allen, who seems to have been of an optimistic bent, discussed with the appellant the proposition that Ananda Holdings would commit half of the funds invested with Investment Suisse, with a similar amount to be contributed by another Investment Suisse client, in return for a fee from the borrower of “a couple of million dollars”.  $50,000 of the funds deposited to the Dresdner Bank account would remain for investment by Investment Suisse; the appellant promised that the rate of return on it would be adequate to ensure that €100,000 was still available for return at the maturity date.  He confirmed that the terms of the Custodial Safekeeping Receipt would stand.

11. The appellant set out the relevant proposal in an email dated 12 January 2009.  According to it, the borrower required €200,000, of which €150,000 would be provided by other named clients.  The email contained the following paragraphs:

    “In your case nothing changes, – your funds will still be maintained 100% under the existing Custodial Safekeeping Receipt – ‘CSR’ – and your returns, which will be paid at settlement of the credit line establishment, have been set at Five Percent (5%) of the value granted by credit line. – There will be the normal fees and charges deducted from this 5% (e.g.) the 20% earnings under the agreement with Suisse.

    Fundamentally as I said nothing changes with Suisse, save a quicker return on funds, who after still providing for non-diminution of the principal of €100,000 allow you to participate in the proceeds from the emerald credit line position as your earnings.  In law Suisse need to commission a second valuation, however the transaction could still proceed, even if a second opinion valued the Emerald at decidedly less than the valuation in hand, (as supplied by owner), it would simply mean your earnings would be proportionately reduced.”

    The email was sent by “the Right Honourable Robert Cowley”.  Mr Allen said that the appellant sometimes used that appellation and, at other times, “Baron Cowley”.

12. A week later, Mr Allen received and signed a letter from Investment Suisse acknowledging the emerald transaction, part of the basis of which was said to be a guaranteed return of the invested €100,000 under the Custodial Safekeeping Receipt.  The letter purported to be signed by “T Aarons” for Investment Suisse.  Another letter from St James Offshore Services SA (now describing itself as a “Fiduciary & Legal Services Practice”) confirmed the arrangement and reiterated that the €100,000 investment would remain intact and protected by the Custodial Safekeeping Receipt.  It was purportedly signed by “J Alexander – authorised Officer”.

13. The emerald deal did not proceed.  A letter dated 4 May 2009 from “J Alexander” of the “Office of Compliance” at Investment Suisse advised Mr Allen on behalf of Ananda Holdings that there had been some (unidentified) fraud concerning the emerald investment and that Ananda Holdings’ funds of €100,000 had been committed to the investigation.  Investment Suisse raised the possibility of legal action, with the caveat that the costs would have to be deducted from “the final investment result”.

14. In November 2009, Mr Allen and the two other contributors to Ananda Holdings’ funds had a meeting with the appellant, which was recorded.  The appellant described himself as the “non-executive Chairman” of the Investment Suisse group.  Mr Allen expressed concerns about the performance of Investment Suisse, while the other participants raised questions about whether Investment Suisse had undertaken due diligence in respect of the emerald deal.  The appellant rejected the proposition that Investment Suisse was responsible for the loss of funds.  He stated that Ananda Holdings’ capital had been entirely committed to the emerald deal, but Investment Suisse would nonetheless find a way to return the capital at the end of the three year contract.  Indeed, by December of that year, Investment Suisse would be able to offer the prospect of an earlier redemption, which, depending on when it took place, might also permit the repayment of more than the amount invested.

    The funds are not repaid

15. Mr Allen gave evidence that none of the funds had ever been returned.  In August 2011, he received a letter (tendered in evidence), from a Mr Shambartas who described himself as legal counsel for St James Offshore Services SA.  It advised that all efforts to recover the moneys invested in the emerald venture had been unsuccessful, and, accordingly, the funds required for redemption of the Custodial Safekeeping Receipt were not available.

16. Ms Nilsson, whose company was the other shareholder in Ananda Holdings, gave evidence that she had contributed half of the €100,000 paid to Investment Suisse.  She had not received any money back.  She was unaware that Ananda Holdings had entered into any agreement in relation to the emerald deal until the meeting with the appellant in November 2009.

    The representations which induced Mr Allen to part with the money

17. Mr Allen gave evidence that he would not have entered the agreement with Investment Suisse but for the representation that the €100,000 invested would be returned under the terms of the Custodial Safekeeping Receipt.  In examination in chief, Mr Allen said that if he had known that “Aaron” and “Marshall” were pseudonyms or aliases used by the appellant, he would not have entered into the agreement.  The Crown relied on the representation that the funds would be returned in full at the maturity date and the sending of correspondence under the names Aaron (or Aarons) and Marshall, with the titles “compliance officer” and “compliance counsel” as particulars of the appellant’s dishonest conduct.

18. In cross-examination, Mr Allen agreed that his reason for parting with the €100,000 was that the capital was guaranteed and he expected to receive a return on it.  The existence or otherwise of Aaron and Marshall was not determinative in his decision to part with the money.  He agreed that he did not understand that the suggested return of 70 per cent per annum on the funds was guaranteed; but what was guaranteed, he said, was the return of the funds themselves.  Mr Allen rejected the proposition put to him that the appellant had not told him the capital would always be safe.

19. It was specifically put to Mr Allen that although the Prasadam Asset Management Agreement had never been acted on, and it was not suggested Prasadam had ever been an investor, the Agreement would have informed his understanding of the conditions upon which he was providing funds to Investment Suisse and the type of investments that it offered.  In particular, he was referred to the clauses of the Agreement which acknowledged that investment involved risk, that there had been no “offering for specific investments” and that the fund manager could not offer “specific performance” for earnings; and to the clause by which the trustee agreed “within the provisions of the MAMA” to return the funds without diminution in three years.  Mr Allen maintained that while there was no undertaking for the investment with any particular bank or trading house and the returns were not guaranteed, the capital guarantee remained in any event.  While the Agreement shed some light on the type of investments offered, it had no relevance to the conditions on which Ananda Holdings provided its funds.

    Material found at the appellant’s house

20. In 2012, a search warrant was executed on the appellant’s house.  The police officer in charge of the search noticed that the appellant was attempting to close an email he was in the process of writing, addressed to a Paul Scribner.  A photograph of it was tendered as an exhibit.  In it, the appellant observes that there is nothing illegal in using a name and website which implies, but does not state, that it belongs to a law firm; it gives the “punter” more comfort than dealing with even Investment Suisse, before the latter’s name “went down the drain”.  The appellant proposes various names incorporating the words “Law Group”.  He advocates doing business as a legal services firm, because the “punters feel more trust”, and registering it in an off-shore jurisdiction where it is harder to run checks.  Naturally, they would “do it right so nothing came back on us”.  The appellant goes on to say in the email that he registered St James Offshore Services SA, the letterhead of which referred to legal services, “for precisely this purpose”.  He had used it as the “fiduciary legal arm” to collect monies, and “it worked a treat”.

21. Numerous documents were taken from the appellant’s dwelling.  They included a copy of the Prasadam Holdings Asset Management Agreement, without the signature of Mr Allen; what appears to be a draft of the letter of 4 May 2009, with handwritten notes, advising of fraud in the emerald deal; an email in letter form dated 2 March 2009 to Scribner, which refers to sending a statement for the account holding Ananda Holdings’ €100,000 and to a strategy for dealing with complaints from an associate of Mr Allen (who had contributed to Ananda Holdings’ deposit) with a combination of reassurance and threats of litigation; an “Authorised Signatures” form for “Euram Finance SA”, referring to the appellant (“Sir Robert Alexander Cowley”) as beneficial owner of  the account into which Ananda Holdings’ funds were paid, and bearing what appears to be his signature; and business cards which included some for the company Investment Suisse, bearing the appellant’s name as chairman and founder, and another in the name of Euram Finance.  There were also some bank statements showing the deposit of €100,000 in the Euram Finance SA account; the last statement was dated 6 February 2009.  The Crown formally admitted, in accordance with that statement, that on 6 February 2009, the Euram Finance account contained €101,022 on term deposit.  It further admitted that if those funds had remained on deposit, they would have matured to €101,388 on or about 11 May 2009.  The evidence did not show what in fact became of the funds, other than that they were not returned to Ananda Holdings.

1. Copies of various documents retrieved from the appellant’s computer were also tendered.  They included a file titled “Electronic Signatures”, which contained signatures in a number of names, including J Marshall, John Alexander and J Stewart-Mitchell.  In one of the retrieved emails the appellant refers to the suggested use of the names, Alexander, Marshall and Aarons in dealing with clients and says that he has email addresses in the names Marshall and Alexander which he uses on a daily basis.  The electronic material also included copies of the documentation issued to  Prasadam and Ananda Holdings and correspondence from St James OffShore Services SA and Investment Suisse to Ananda Holdings, a good deal of it concerning the emerald transaction.

   The appellant’s defence at trial

2. The appellant did not give evidence at the trial.  His counsel by way of address submitted to the jury that it could not be satisfied that the use of false names and invented titles played any part in inducing Mr Allen to invest on behalf of Ananda Holdings.  It might well be satisfied that Mr Allen was induced to enter the arrangement by the guarantee of return of the capital; but it could not be satisfied beyond reasonable doubt that in the limited time frame alleged – between 9 September 2008 and 16 October 2008 – the appellant had a dishonest intent.  The fact that the funds remained in the Euram finance account until at least 6 February 2009 was inconsistent with any such intent.  There existed a reasonable possibility that the funds were dissipated in the investigation of the emerald transaction.  Even if there were anything wrong or improper in the appellant’s conduct in relation to that matter, it could not lead to his conviction, because that was not the dishonesty alleged in the indictment.

   Unreasonable verdict

3. The appellant, unrepresented here, did not distinguish, in his arguments as to why the verdict was unreasonable, between the evidence which was actually before the jury and the new evidence which he sought leave to adduce in this court.  I have endeavoured to disentangle his argument as to why the jury should not, on Mr Allen’s evidence, have been convinced of the fraud from his further argument, which can be characterised as a contention that there was a miscarriage of justice because the jury did not have before it evidence which would have led to a reasonable doubt of his guilt.

4. The appellant argued (as his counsel had) that the jury could not reasonably find that he had a dishonest intent within the six week period charged, because during that period and for some months afterwards the Ananda Holdings funds remained in the Euram Finance account.  He contended further that the transaction with Ananda Holdings was governed, not merely illuminated, by the Prasadam Asset Management Agreement.  That was to be deduced from the following: the first of the emails sent by Mr Allen in the 13 October – 15 October chain, requesting documents so that Ananda Holdings could become a client of Investment Suisse, was sent by him as “Glenn Allen Prasadam Holdings Pty Ltd”; there was a transaction code on the Asset Management Agreement which was identical to one which appeared on the Custodial Safekeeping Receipt; the Custodial Safekeeping Receipt did not provide for payment of any interest, so it was obvious that there must have been another agreement in the form of an Asset Management Agreement; and the Custodial Safekeeping Receipt referred to the deposit of cash pursuant to an Asset Management Agreement.  The Prasadam Asset Management Agreement referred to the risk of investment, provided that the manager was not liable for losses and contained a condition to the effect that the manager could not “offer specific performance for earnings”.  Those qualifications should have been regarded as governing the transaction with Mr Allen.

5. The difficulty for the appellant is that his case was expressly put to Mr Allen on the basis that the Prasadam Asset Management Agreement did not govern the investment of funds on behalf of Ananda Holdings.  It was instead suggested to Mr Allen that his understanding of arrangements with Investment Suisse was informed by the Asset Management Agreement.  He rejected that proposition and defence counsel did not pursue it in his address.  It is not surprising that it was not suggested that the Prasadam Asset Management Agreement did apply.  The email chain of 13 - 15 October 2008 referred to a client agreement “which would precede our AMA”, suggesting that there was some contemplation of an Asset Management Agreement later being produced, which never eventuated.  It is to be noted, too, that under the Prasadam Agreement Mr Allen would have been entitled to commission, but there was no suggestion in any of the correspondence of his claiming it in relation to the investment of the Ananda Holdings funds.  And while the first email in the email chain was sent with a reference in the signature line to Prasadam, Mr Allen’s next email bore the name of a different company over the signature, one which was entirely unrelated to his dealings with the appellant.  Mr Allen’s evidence was that his understanding of the agreement concerning Ananda Holdings came from discussions with the appellant, not the Prasadam Asset Management Agreement.  The jury was entitled to accept that evidence.

6. The Crown did have the task of convincing the jury that the appellant had a dishonest intent over the limited period of his discussions with Mr Allen up to the point of the delivery of the funds.  The trial judge made it clear to the members of the jury that they had to be satisfied beyond reasonable doubt of dishonest intent during the time period specified in the indictment; he warned them that they should not reason from the fact that the money was not ultimately repaid that there was an intent not to repay it at the time the representations were made.  The Crown would not have proved its case if the jury thought that the appellant had subsequently changed his mind about repayment, and it would not suffice that the appellant was “reckless, careless or indifferent” as to repayment.  The jury, thus instructed, nonetheless came to the conclusion that the dishonest intent existed at the outset of the appellant’s dealings with Mr Allen in relation to Ananda Holdings.  Given the nature of the transaction as a whole and the use, in particular, of false names in dealing with Mr Allen in correspondence in the charged period, I do not think it surprising that the jury was so satisfied.

   The application to adduce new evidence

7. The appellant sought to adduce a large amount of documentary material on this appeal.  Those documents can be categorised into four groups: emails and internet posts about him, which he describes as vexatious; documents designed to establish his bona fides and those of Investment Suisse; documents which are said to show there was nothing untoward in his use of false names; and documents which on their face might conceivably have some relevance to his dealings with Mr Allen and Ananda.

8. The appellant’s explanations for not having the evidence available at trial were: that at the time of the trial he had left some of it, referable to his character, at home in Melbourne because he had not anticipated needing it; that some information, which was in his solicitor’s possession, had been provided by the police in an encrypted form, and he could not afford to have the encryption removed (although he had not sought it in an unencrypted form); and other documents had to be obtained by him from “overseas”.  The evidence was thus new, rather than “fresh”; that is to say, it was not shown that it could not, with diligence on the part of the defence, have been adduced at trial.  Nonetheless, the appellant would be able to demonstrate a miscarriage of justice if the new evidence satisfied this court of his innocence or caused it to entertain a reasonable doubt as to his guilt.  In reaching its conclusion, the court must decide the relevance of the evidence, its authenticity and its cogency, having regard to the evidence produced at the trial.[1]

   [1]Ratten v The Queen (1974) 131 CLR 510 at 518.

9. It should be said at the outset that the provenance of the documents which the appellant sought to adduce as new evidence was not sworn to in any way.  While one has some sympathy for the position of an unrepresented party, given the evidence at trial as to the appellant’s ready use of false names and enthusiasm for using a bogus “Legal Group” letterhead, a court must be extremely reticent in accepting as authentic any document produced by him.  However, I will focus on the questions of relevance and cogency.

   Emails and internet posts

10. The appellant produced an email which on its face was sent by the investigating officer in mid-2012 to an individual unconnected with the trial, cautioning him against investing with the appellant.  It is difficult to see how the sending of it could reflect on the officer’s credit, if that is the point of the submission.  Next were some internet posts asserting dishonest conduct by the appellant and some emails which he described as harassing, all from individuals unassociated with the trial.  The appellant asserted, unsworn, that the sender of the emails had incited Mr Allen to lay charges.  Even if that were so, it would say nothing about the legitimacy of the latter’s complaint.

11. Finally in this group, the appellant produced a series of emails, apparently from Mr Allen, demanding the return of Ananda Holdings’ funds and threatening to seek a police investigation and the involvement of a parliamentarian and a journalist.  In them, some harsh language is used: the appellant is referred to as a “con man”, it is asserted that he is not really a “Count, Lord or Sir”, and his paper work is described as “toilet paper”.  However, Mr Allen’s evident fury (if he is indeed the sender) seems entirely consistent with the reaction of a man defrauded.  None of the material in this group raises any question as to the appellant’s guilt; indeed, had it somehow made its way into the trial, the jury would probably have regarded it as confirmation that the appellant left a trail of angry investors.

    Evidence of bona fides

12. Next, the appellant sought to adduce evidence as to his own bona fides and those of Investment Suisse.  As to the first, he produced a picture of himself in a ceremonial robe, a copy of a document according to which he has been “created a Knight of Honour” and letters apparently from various charities thanking “Baron Cowley” and “Sir Robert Cowley” for donations of $500 and $1,000; these were said to confirm the authenticity of his titles and his philanthropic activity.  The appellant argued that because Mr Allen spoke of his using the titles “Baron Cowley” and “The Right Honourable Robert Cowley”, the jury might have perceived that he had made false claims.  He suggested also that Mr Allen had made a reference to his donations to charities, but that does not appear in the transcript.  I must say that if the authenticity of the appellant’s claimed titles were really an issue at the trial, this material would not persuade me that they were genuine; but, more to the point, the Crown placed no reliance on the use of titles as evidence of dishonesty, as opposed to connecting the appellant with documents found on the search of his premises.  The trial judge instructed the jury that that was its only significance.

13. In respect of Investment Suisse, the appellant produced two documents.  The first purported to be a promissory note and shares purchase agreement between a firm of solicitors and “Investment Suisse Group Americas”, which was said to demonstrate the bona fides of Investment Suisse, although it appears to refer to a different entity.  The second appears to be a letter from an officer of the National Australia Bank advising an individual unconnected with the case that the bank will consider financing him once discussions with Investment Suisse have progressed and there is a firm proposal.  The appellant asserted that if Investment Suisse were involved in fraud, National Australia Bank would have been aware of it and cautioned their client.  The material plainly did nothing to show that Investment Suisse had any substance; but, more importantly, the trial judge directed the jury that it was no part of the Crown case that Investment Suisse was a sham.

    Evidence as to the unremarkableness of pseudonym use

14. In this context, the appellant asked the court to receive some evidence apparently designed to show how run-of-the mill the use of pseudonyms (such as J Marshall, T Aaron, J Alexander and J Stewart-Mitchell) really is in business affairs.  To that end, he sought to tender a letter showing his brother’s use of the pseudonym “J Marshall” in what appears to be a proposal for a resort development; something which raises its own set of concerns, rather than advancing the appellant’s argument.  The second document he relied on was a letter to him from the Legal Aid Office which is signed “per [signature]” which, the appellant said, amounted to the use of a pseudonym.  It need hardly be said that neither document could be received by this court as probative of anything.

    Evidence with some vestige of relevance to the Ananda Holdings investment

15. The first in this group of documents was a photocopy of what was said to be the affidavit of a Mr John Hopkins, sworn in Thailand.  According to the document, Mr Hopkins was a director of Investment Suisse; the appellant was not an officer or director, but merely a consultant; all business decisions were made exclusively by the directors of Investment Suisse; and, for good measure, the appellant was “a person of undisputed integrity”.  The appellant relied on this for the proposition that he should not have been charged as a director of Investment Suisse.  But since he was not, it is of no consequence.  Similarly, the next document, which was said to be a due diligence report in relation to the emerald transaction, was unauthenticated and did not concern any material issue at the trial.  The appellant argued that it was suggested that no such report was done.  In fact, his counsel questioned Mr Allen on the issue and extracted a concession that he did not know whether a report had been done.  At no stage did the Crown suggest that whether or not a report was done had any significance; unsurprisingly, because it was relying on an earlier course of conduct by the appellant as constituting the fraud.

16. The next document is an “Application & Accredited Investor Status Declaration”, apparently signed by Mr Allen on 13 October 2008.  It certifies worth and requests assistance “to facilitate approval for a private placement investment based on securities trading” or a cash deposit in the amount of €100,000.  It expresses an expectation that an “AMA” will be received and that trading will commence in accordance with it.  The appellant relied on this an as indication that there was an Asset Management Agreement relevant to Ananda Holdings’ investment; but of course it seems to contemplate the creation of an agreement, rather than proving that any such agreement was ever signed.  When that was pointed out to the appellant, he suggested that the Prasadam Asset Management Agreement, although dated 10 September 2008, was in fact signed on 14 October 2008, after the application, and was thus the Agreement referred to in it.  There was no evidence to support that proposition; nothing of the sort was suggested to Mr Allen; and it seems to have been an entirely opportunistic submission.  The document did not advance matters for the appellant.

17. The appellant also sought to rely on a document said to be a settlement agreement between Investment Suisse SA and Ananda Holdings Pty Ltd, made 24 February 2012, under which the parties agree that once the deed is signed, Investment Suisse will direct payment of $US137,263 to Ananda Holdings in exchange for the latter releasing Investment Suisse from liability for claims arising “from or incidental to the AMA” or the Custodial Safekeeping Receipt.  It appears to be signed by Mr Allen; its significance is that it contains a recital that the parties entered into an Asset Management Agreement with the same transaction code as that recorded in the Prasadam Agreement.  Apparently connected with the settlement agreement are a document headed “Authority and Direction” purporting to be a direction to “Denizbank Ltd” to pay the amount of the settlement to Ananda Holdings Pty Ltd, and two letters dated March and June 2012 apologising for the delay in payment.  Nothing indicates that payment was made.  The appellant relies on the settlement agreement as confirmation that there was an Asset Management Agreement relevant to the dealings with Ananda Holdings.

18. There is, I need hardly say, no evidence as to the provenance of the documents.  If indeed Mr Allen signed the settlement agreement, he could certainly have been cross-examined about why he was prepared to sign a document which apparently acknowledged the existence of an Asset Management Agreement.  The answer might have been that he would have signed anything which held out hope of return of his funds, or was oblivious to the reference; he certainly does not seem to have been an astute reader of Investment Suisse’s documentation.  On the other hand, the settlement agreement might, if authenticated, have provided some evidence that there was an operative Asset Management Agreement.  But the appellant chose not to run his case on that basis at trial; the terms of the Prasadam Asset Management Agreement were largely gobbledegook; and the allusions to risk and non-acceptance of liability, for what they were worth, would not necessarily negate the effect of the appellant’s representations in inducing Mr Allen, on behalf of Ananda Holdings, to provide the funds.  Indeed, had the appellant’s counsel considered relying on the settlement agreement, he might well have thought better of it, given that it was likely to be regarded by the jury as yet another promise of payment which came to nothing.

19. Finally, the appellant sought to adduce a document which appears to be a shareholders’ agreement between Mr Allen and Neplusultra International Pty Ltd to form Ananda Holdings.  It provided that unanimous resolution at a shareholders meeting was required for the disbursement of funds.  The appellant argued that Mr Allen had placed money in the emerald transaction without authorisation because Ms Nilsson, who controlled the other shareholder, did not know of that dealing.  But that was irrelevant to whether the transfer of the funds had been dishonestly induced in the first instance; and, as to that, Ms Nilsson’s evidence at the trial was that she was aware of the arrangement for Ananda Holdings to invest with Investment Suisse.

    Conclusions

20. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt; the verdict was not unreasonable.  None of the material which he now seeks to adduce would give rise to any reasonable doubt.

    Orders

21. I would refuse the application for leave to adduce evidence and dismiss the appeal against conviction.

22. MORRISON JA:  I have had the advantage of reading the reasons of the Holmes JA and agree with those reasons and the orders her Honour proposes.