R v Durovic

[1992] TASSC 109

Serial No B32/1992
List “B”

CITATION:   R v Durovic [1992] TASSC 109; B32/1992

PARTIES:  R

v

DUROVIC

TITLE OF COURT:                  SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL

FILE NO:  33/1992

DELIVERED:  28 July 1992

HEARING DATES:                   27 July 1992

JUDGMENT OF:  SLICER J

CATCHWORDS:

Criminal Law – Indictment – Application for severance –

Criminal Code, s234 –

Companies (Tasmania) Code, s229(4).

REPRESENTATION:

Counsel:

Crown:  R Noble

Accused:  A Rowlands

Solicitors:

Crown:  Director of Public Prosecutions

Accused:  Finlay Watchorn

Judgment ID Number:              B32/1992

Number of paragraphs:            11

Serial No B32/1992

List "B"

File No 33/1992

R v DUROVIC

REASONS FOR JUDGMENT  SLICER J

28 July 1992

1. Application has been made pursuant to the Code, s326, to sever the indictment. The indictment, containing some 306 counts, charges the accused with crimes contrary to the Criminal Code, s234, and the Companies (Tasmania) Code, s229(4). The application is made for the severance of all counts alleging crimes contrary to s229(4).

1. The indictment alleges that on diverse occasions acts of theft from the company Paragon 2000 occurred. In the event that the jury is not satisfied that such acts constitute the crime of stealing, the Crown contends that the same acts amount to a breach of duty contrary to the Companies (Tasmania) Code, s229(4). The applicant contends that the existence of the alternate counts would enable the Crown to adduce evidence admissible in relation to the affairs of the corporation which would not be admissible in relation to the counts of stealing. There may be some merit in that contention but much of the background material pertaining to the affairs and conduct of the company Paragon 2000 would be relevant, and accordingly, admissible, in the consideration of the circumstances surrounding the acts alleged to constitute the crimes of stealing. But even if such evidence were to go beyond that admissible in relation to the allegations involving s234, consideration must be given to the effect of the Code, chXXXIX. Section 338 provides for convictions for crimes alternate to that of stealing and includes "dishonestly acquiring a financial advantage" (see s338(1)(ca)) and "receiving stolen property" (see s338(1)(d)). It would be open for the Crown to lead evidence in relation to those matters in relation to an indictment alleging stealing even if such evidence was not admissible in relation to s234.

1. In this case there is an argument that the jury could consider a verdict in relation to the Companies (Tasmania) Code, s229(4), by virtue of the provisions of s332(2), although I have not been asked to determine such proposition. The Crown contends that because of the scheme of chXXXIX it is acting properly in framing the indictment to include the alternate counts in order to give effect to the Code. Section 229(4) provides for a penalty of "$20,000 or imprisonment for 5 years or both". By virtue of the application of the Acts Interpretation Act 1931, s38 2(c), and the Criminal Code, s1, the matter can only be dealt with by way of indictment. In addition, the Companies and Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1981 (Tas.) provides for the adoption of the Commonwealth Code as part of the law of Tasmania. That Code in turn is subject to the provisions of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth), s35(2), which states:

"An offence against a relevant Act that is punishable by imprisonment for a period exceeding 6 months is, subject to sub–section (3), punishable on indictment."

Subsection (3) has no application in these proceedings.

1. A crime contrary to s229(4) is an appropriate alternative crime to one involving corporate theft involving the provisions of the Criminal Code, s234.

1. Thus the fact that evidence can be led which is relevant to the alternate charge does not of itself form a strong basis for severance.

1. The application is really dependent upon the number of acts alleged and the complexity of the affairs of the company. See R v Smart 1983 VR 265.

1. It is true that the very nature of allegations of corporate fraud gives rise to complexity. But as counsel for the applicant conceded, if the indictment consisted of one count of stealing and one of misuse of corporate office, then the particulars supplied in support of such two counts would pose the same form of problem. In this case the complexity is caused by the number of counts encompassing the transactions alleged to constitute the crimes. The legal consequences which flow from any findings of fact made by a jury can be distinguished (see R v Chew (1992) 66 ALJR 383 and R v Edwards (1992) 66 ALJR 394) and although there will be a need to direct the jury that they must clearly distinguish between the two kinds of crimes alleged, such is not an impossible task. Given that the Crown relies on the same acts as are alleged in relation to the stealing counts, then evidence which can be admitted in support of those counts will contain limitations determined by relevance. The jury, in dealing with the counts contrary to the Companies (Tasmania) Code, s229(4), as alternate to the counts of stealing, will be able to make findings of fact and determine whether certain acts were committed. The jurors will then be able to apply the different criteria requisite to the crime alleged and arrive at a verdict. Given that an essential difference between the two crimes is one of mens rea, then the evidentiary complications should not be too difficult. In addition, as the High Court said in Pereira v R (1988) 35 A Crim R 382 at 385:

" ... if both charges relate to the one set of facts and the only issue appears to be the accused's knowledge ... the preferable course is to charge the second count in the indictment as alternative to the first count:"

1. That proposition holds even when there are a substantial number of principal counts. The problem is not with the legal distinctions but the number of transactions. Given that the Crown relies upon the same acts as constituting the same crimes and seeks convictions under s229(4) only in the event of acquittals under all or some of the charges under s234, I do not accept that the form of the indictment is oppressive to the defence nor is likely to cause a situation where extreme prejudice could occur.

1. Different considerations may apply in relation to the counts not characterised as alternatives. These comprise some seventy counts representing allegations of principal offences. They do not come within the scheme represented by the Code, chXXXIX. The Crown contends that they may be joined by virtue of the Criminal Code, s311(2). The Crown further contends that much of the evidence relating to these counts could, in any event, be led to show the general operations of the company and the method of the handling and recording of monetary transactions. Some problem may arise if the Crown seeks to lead a particular portion of evidence admissible only in relation to one of these counts in support of another particular count. But the severance of these counts may cause problems for the defence in that if evidence is led of transactions as part of the scheme, then unless isolated by reference to the indictment, there may be confusion caused by general allegations specifying impropriety without the defence being able to adequately identify and meet the particular form of conduct complained of. From the defence point of view there may be evidentiary difficulties caused by severance. In the light of this, counsel for the applicant has sought that I determine the question of severance on the basis of all counts alleging crimes contrary to s229(4), and that I not pay regard separately to those seventy counts. In doing so counsel reserved the right to make a further application in respect of those seventy counts in the event that I did not order a severance of all of the counts. I accede to that request.

1. In the light of the above I do not regard the considerations which may affect any decision to sever the seventy separate counts as being sufficient to cause me to order all of the counts contrary to s229(4) to be severed. The reasons which have led me to conclude that the counts (as alternates) should not be severed apply then to the indictment as a whole.

1. The application for the severance from the indictment of all counts contrary to s229(4) is refused.