R v David Michael Wills, Caroll Anne Henderson, Peter James Henderson
[2012] NSWDC 250
•08 August 2012
District Court
New South Wales
Medium Neutral Citation: R v David Michael WILLS, Caroll Anne HENDERSON, Peter James HENDERSON [2012] NSWDC 250 Hearing dates: 15 May 2012 to 7 September 2012 Decision date: 08 August 2012 Before: Judge Haesler SC Decision: Defence application Crown case be restricted. Refused.
Catchwords: Variation of particulars, corrupt benefits, corrupt commissions, money laundering, fraud, senior executive breach of trust Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986Cases Cited: Gerakiteys v The Queen (1984) 153 CLR 317
Johnson v Miller (1937) 59 CLR 467
R v Mok (1987) 27 A Crim R 437
Qualtieri v R [2006] NSW CCA 95
R v Saffron (1988) 17 NSWLR 395
Standen v R [2011] NSWSC 1038Category: Procedural and other rulings Parties: Regina (Crown)
David Michael WILLS (Accused)
Caroll Anne HENDERSON (Accused)
Peter James HENDERSON (Accused)Representation: Mr S de Silva (Crown)
Mr G Brady (for David Wills)
Mr A Conwell (for Caroll Henderson)
Mr F Coyne (for Peter Henderson)
Mr D Robinson (DPP)
Mr R Hudson (for David Wills)
Ms K Anderson (for Caroll Henderson)
Mr D Humphries (for Peter Henderson)
File Number(s): 2009/80902; 2008/77194; 2008/177894
Judgment
Introduction:
On Day 56 of the trial of David Wills, Peter Henderson and Caroll Henderson, Mr Wills gave evidence in his defence. On Day 59 of the trial, during his cross examination of the accused, the Crown put a copy of the Indictment (MFI 13) in his hands and started to put to him the Crown case in relation to each element of the 21 counts preferred against him.
When it came to Count 7, a charge pursuant to s 249 B (1) Crimes Act 1900, that on 4 June 1997 Mr Wills, being an agent of Woolworths, did corruptly receive from International Retail Systems a benefit of $133,160.00 for having shown favour to Az-Ben Limited in relation to the business of Woolworths, Mr Crown said:
"I suggest to you that the favours consisted of assistance on an ongoing basis in the implementation and the favourable assistance - favourable assessment of the performance of APOS?"
Mr Brady, for the accused Wills, objected.
I interrupted and, not understanding the full import of the objection, asked the question be put more precisely. Mr Crown asked a few more questions. Then at TT3537 the following appears:
Q. That it was from a company under the control of Mr Weissman, for Retail Technology and that you received that payment on account of assistance - favours that you had shown Az-Ben Electronics in connection with the business at Woolworths?
A. No.
Q. I suggest to you that the favours consisted of assistance on an ongoing basis in the implementation and the favourable assistance - favourable assessment of the performance of APOS?
Mr Brady objected again. As it was close to 4pm the jury were sent home. Argument in relation to the objection was put off until the following day. During that argument it soon became clear that Mr Brady was objecting not just to the tone or form of the question but to the premise underpinning it: - that is, that the Crown case in this and the other s 249B (1) counts related to favours or partiality shown by Wills over the entire course of Az-Ben's business dealings with Woolworths. This, it was submitted, was so at variance with the Crown's opening, and, critically the particulars supplied to the defence in September 2012 (VD Exhibit 21), that I should as a matter of both law and fairness restrict the way the Crown was to put its case to the jury in each s 249B (1) count; being counts 6, 7, 8, 9, 10, 11, 13, 14, 17, 19, 22, 24, 27, 30, 33 and 36. After lengthy argument and discussion I made two rulings:
(1) That the formal objection to the question was upheld as the Crown question was too general and amorphous: for Count 7 and each s 249 B (1) count, if the Crown was going to say to the jury that Mr Wills did a certain act which showed favour to Woolworths in order to further either the conspiracy or to justify a payment which is particularised as a count in the indictment, then the Crown had to put that specific act showing favour to him (TT 3568).
(2) That I was against Mr Brady on his substantive submission: I would not direct the Crown to restrict its case to an alleged favour shown by Wills to Az-Ben to the terms set out in only part of the particulars letter; being "the award of a contract which ultimately resulted in WW's making payments totalling $9,6068,514.39 to Az-Ben and related companies".
I reserved giving these detailed reasons until 8 August 2012, so as not to further delay the jury.
Should the Crown be directed to restrict its case?
There can be no doubt that a valid indictment must identify the essential factual ingredients of the offence charged and must provide fair information and reasonable particularity as to the nature of the offence charged: see R v Saffron (1988) 17 NSWLR 395, at 445, citing amongst other cases Johnson v Miller (1937) 59 CLR 467.
In R v Mok (1987) 27 A Crim R 437 Justice Hunt at 441 made similar points:
"An accused person is entitled to have identified with precision the transaction upon which the Crown relies ... A charge of conspiracy does not differ in this respect from any other charge ... It has long been a cardinal requirement of the criminal law that an accused should be given proper particulars and the courts possess an inherent authority to require the Crown to finish particulars of the charge" (at p441).
Mok and Saffron had been raised earlier in the trial when the Crown indicated it wished to go to the jury with an alternate conspiracy to be alleged in Counts 1 and 2 of the present indictment. After I drew the Crown's attention to those authorities; Clause 21 of the 3rd Schedule to the Criminal Procedure Act 1986; and, what fell from the High Court in Gerakiteys v The Queen (1984) 153 CLR 317, that application was withdrawn.
Mr Brady wishes to build on what is said in these conspiracy cases to say the Crown now cannot raise either in address or cross examination evidence properly admitted which, though it might prove the elements of the count alleged in the indictment, was not particularised or fully particularised. I do not believe the law goes so far.
Mr Brady made two related subsidiary submissions. One; the crime now alleged is a different crime than that pleaded and, two; because of the breadth of the allegation and departure from the particulars provided it is impossible for Mr Wills or the jury to know which act the Crown is in fact relying on either to prove a Count in the Indictment or as context evidence.
A Judge in a trial can order better particulars. A Judge can discharge a jury if irreparable or unfair prejudice has been occasioned or has occurred. A Judge can and in fact, must, restrict the Crown to proof of the offence alleged and not some other offence. If the evidence discloses two or more crimes which fit the elements in the one count charged in the Indictment the Crown will be asked to elect on which they proceed. And, if some offence other than that charged is disclosed the Judge must carefully direct the jury accordingly: see Qualtieri v R [2006] NSW CCA 95 at [80]. However, I do not believe it is within my power to tell the jury how to approach relevant and otherwise admissible evidence, properly admitted, which they could use to establish the Crown case in a Count properly set out in the Indictment. This is particularly so when as here no substantive prejudice could be pointed to.
Here each s249 B (1) charge in the Indictment has common elements:
(1) David Wills as an agent of Woolworths;
(2) Did corruptly receive a benefit, being a nominated sum of money;
(3) From a named company, either Finnigan Computers beneficially owned by Peter Henderson, or a company associated with Ben Zion Weissman, the owner of Az-Ben;
(4) For having shown favour to Az-Ben Electronics Ltd in relation to the business of Woolworths.
There is no dispute that at the relevant times Mr Wills was an agent of Woolworths. There is no dispute that at the times noted in the Indictment money was sent from a Weissman company or from a Weissman company via Finnigan Computers to a British Virgin Island's (BVI) company with a Jersey bank account - Cross Border Holdings. Mr Wills admits he was the beneficial owner of Cross Border Holdings.
What is in dispute, and are the real issues at trial for the s 249B(1) counts, is the reason for the transfer of money and at whose direction the transfers were made. Evidence, not seriously disputed, shows that in 1995 and 1996 Mr Wills was put onto a software product developed by Az-Ben by Peter Henderson, who eventually became Az-Ben's agent in Australia (either individually or through his company Smart Retail Systems which he operated with his wife and co-accused Caroll Henderson). Mr Wills was instrumental in Woolworths and Az-Ben doing business. Woolworths entered into a formal written contract with Weissman and Az-Ben in May 1997 (Exhibit 42 RJC 51) but payments had commenced in August 1996 and continued until June 1999 (Exhibit 50).
Prior to empanelment of the jury I expressed some disquiet at the number of charges and my concern that what James J said in Standen v R [2011] NSWSC 1038, about charging both a conspiracy and the particulars of the conspiracy as separate counts, had been pushed to extremes. There was no demurrer and no application based on oppressive nature of the Indictment. My pleas to the Crown that the counts be put in chronological order were also ignored.
It is abundantly clear to me from the particulars provided (VD Exhibit 21) that the 'contract' as such covered the entire period during which the over $9 million noted was paid to Weissman companies. It is also clear from those particulars that while the specific offences were relied on as overt acts in the conspiracies they also stood alone. That the favours may have continued over a period up to the benefit being paid does not change the offence in the Indictment into a different crime. There are not here a series of crimes attaching to specific favours. What defines each s 249B(1) count is the benefit received. What was done by the accused leading up to the benefit being received are circumstances from which the jury can determine whether the Crown have proved beyond reasonable doubt favour was shown and whether the receipt of the benefit was corrupt.
In order to prove their case the Crown relies, without objection, on tendency evidence and evidence rebutting coincidence. Their notices restrict evidence to the facts of the Counts in the Indictment. The jury will be directed accordingly. The jury will also be told that great care that needs to be exercised when considering relevant 'context' evidence that might be construed as a dishonest act but which falls outside of a charge.
While a strict literal construction of the heading "receipt of benefit" and that portion of the particulars which read "ABE was shown the favour of the award of a contract ..." could be construed as limiting the Crown case to a date when a contract was awarded, when the particulars are read as a whole, it is clear that the Crown case on the s 249B (1) counts was and is much broader. One has only to look at the first paragraph of the particulars letter and what is noted at 1.4:
"The Crown submits that the offences set our above, not only constitute substantive offences, but also, provide evidence that:-
(a) the parties did enter in an agreement as alleged, and
(b) carried out the fraudulent activity contemplated by them when they reached the agreement."
When those particulars are read with the reference to the Indictment, the 'Facts on Committal' referred to and the brief as served, there is to my mind no doubt that the 'favours' or partiality relied on are what was done by Wills in relation to the continuing business between Az-Ben and Woolworths over the course of a contractual relationship during which the $9 million was paid.
In addition, the Crown's opening (TT 15) was broader than the literal reading of the standard paragraph relating to the s 294 B (1) charges relied on by Mr Brady. The trial has progressed on that basis, without objection, to a stage where it is clear that the evidence called point to acts done by the accused Wills not just in the selection of Weismann's company and the awarding of the point of sale software work to Az-Ben so they and Woolworths could develop APOS 2000 for Woolworths. Those acts include the signing of a formal contract in May 1997, acts done in furtherance of that initial agreement and subsequent variation and additions to the initial agreement. Those acts are not in dispute. What is in dispute are Mr Wills' motives.
The Crown's primary case is of two continuing conspiracies and related offences during which time specific payments were made to Cross Boarder Holdings; that is, Mr Wills, on specific dates. Those payments, it is said, were not just for the original arrangement by which Az-Ben and Woolworths commenced their business dealings but Wills actions in furthering and continuing this the fraudulent activity so as to as to ensure the continuing flow of payments from Woolworth's to Wiessmann or the Hendersons.
Mr Wills in evidence, and Mr Brady in testing Crown witnesses, on the other hand, have always maintained that the Woolworths - Az-Ben and Woolworths - Smart Retail Terminal (Henderson) business relationships were legitimate. His case is that in his role as head of Woolworths' MIS Mr Wills acted always in the best interests of Woolworths. In evidence Mr Wills said any private business or personal relationship he had with Peter Henderson, Caroll Henderson or Ben Zion Weissman was at arms length, related to overseas matters only and was not, and could not be, regarded as being a conflict of interest with or otherwise damaging or risking Woolworths' interest.
The Indictment properly set outs the elements of each s 249B(1) charge. The favour shown is properly and understandably particularised as a favour to Az-Ben in relation to the business of Woolworths. There was a continuing business arrangement between Az-Ben and Woolworths from mid 1996 until the payment date shown for the specific count. Each count has a date, which is related to when benefit received. There can be no doubt on the evidence that each count relates to one offence. There is no real conflict between the Crown and Mr Wills that he as head of MIS furthered the Woolworths' business relationship with Az-Ben. Prior to the trial he and his legal team could not have been unaware that the Crown relied on these actions. So much is clear from Mr Brady's opening address on day 3 (at TT pages 26 to 29). In that address the actions of Wills, which the Crown now say were the corrupt furtherance of the Az-Ben Woolworths' business relationship, were responded to and a benign and positive motive for them detailed.
The issue at trial is not what was done but why. At this stage contrary to Mr Brady's submissions, there is no substantive issue remaining about the particulars of what was done by Mr Wills, if there ever was. If Mr Wills received the benefit for corruptly, that is, dishonestly showing that the favour the Crown have proved its case. If Mr Wills acted in furtherance of Woolworths' interests or more precisely if the Crown fail to show beyond reasonable doubt he did not do so, he will be acquitted.
I do not accept that the Crown have gone beyond the case initially particularised. Nor have they gone further than the case that was opened. From the defence to that opening response this was understood by them. Even if they have gone further, I can see no potential for prejudice and none has been pointed to. Accordingly, I cannot, and if I had the power would not, direct the Crown to restrict its case, to the terms set out in only part of the particulars letter; that being "award of a contract which ultimately resulted in WW's making payments totalling $9,6068,514.39 to Az-Ben and related companies."
The Crown's Question
That said, the Crown's initial question, the subject of the initial objection, was far too broad. It did not properly do what Mr Crown told the jury he intended to do, that is, put his case with some particularity. While the Crown circumstantial case relies, in part, on the improbability of events occurring coincidentally the jury and the defence, at the very close of all the evidence in the trial, should have some idea on what particular circumstances the Crown rely other than just a payment to Cross Border Holdings. If the Crown is going to say to the jury that Mr Wills did a certain act which showed favour to Woolworths in order to further either the conspiracy or to justify a payment which founds a s 249B(1) count in the Indictment, then the Crown should in fairness put to Mr Wills the specific act showing favour he intends to take to the jury.
Postscript:
Following my ruling but prior to giving formal reasons Mr Crown completed his cross-examination of the accused. With the exception of Counts 22 and 23 he did not give any details of what favours he was relying on other than the award of the APOS 2000 contract for Point Of Sale (POS) software.
For Count 22 he specifically referred the accused to documents found at the Henderson's home (Exh 65). For Count 33 he specifically referred to Lindsay Walker's Datatrack payment to a Weissman's company of $500,000 and a payment by Weissman to Cross Border Holdings of about $5000,000 days later. For most of the other s 249B(1) Counts he simply put to Mr Wills that the payments noted in the s 249 B (1) counts were:
"for payments on account of a favour shown to you by the company Az-Ben Electronics Ltd in connection with the ApoS2000 project contract for which you had selected the company" (TT p 3604 at line 41).
Another example can be found at TT p 3608 line 11:
Q. I suggest to you that that $67,500 paid to you on 3 December 1997 was a payment to you as a reward for the favour you have shown Az Ben in the selection and the awarding and the progressing of - sorry, and the awarding of the APOS 2000 contract?
A. That's incorrect again.
Q. Similarly the Crown suggests that a payment of 25,719 on 11 December 1998 was a payment that was made to you for favour shown to Az Ben in connection with the award of the selection - sorry, with the selection and award of APOS 2000 for the provision of software services for Woolworths Ltd point of sale?
A. Again that's incorrect.
It would appear the Crown now put their case on these Counts more narrowly than initially particularised and more narrowly than I had anticipated in my ruling.
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Decision last updated: 13 February 2013
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