R v Ferguson

Case [2018] SASCFC 130

Supreme Court of South Australia

(Court of Criminal Appeal)

R v FERGUSON

[2018] SASCFC 130

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Doyle and The Honourable Auxiliary Justice Chivell)

5 December 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE

Appeal against conviction.

The appellant was charged with 8 counts of giving false or misleading information to directors of a corporation and 9 counts of disseminating false or misleading information likely to induce a person to acquire financial products.

The appellant was the chief executive officer and company secretary of Australian Bight Abalone Ltd (ABAL). ABAL was the responsible entity for managed investment schemes involving off shore farming of abalone in cages.

The counts related to reports by the appellant or other employees to the board or to information provided to investors or potential investors in periodic investor reports, product disclosure statements or a media release. The majority of the counts alleged understatement of abalone mortality numbers or consequential overstatement of financial performance in relation to the 2005 scheme. In respect of these counts, there was no real dispute about the physical elements of the offences and the real issue was the appellant’s knowledge of the true position.

The heart of the prosecution case in respect of the appellant’s knowledge was that ABAL’s operations manager Darren Tressider told the appellant and one of ABAL’s directors in January 2007 that the majority of abalone the subject of the 2005 scheme had died or was missing and this was a vastly greater mortality rate than hitherto believed; that the appellant and the director told Mr Tressider not to disclose this to anyone; and that the appellant thereafter knew that reports to the board and investors about mortality rates for and financial performance of the 2005 scheme were false. The prosecution relied on certain items of circumstantial evidence to support Mr Tressider’s evidence. The appellant gave evidence denying that the conversation deposed to by Mr Tressider ever occurred.

The appellant appeals on the ground that the Judge erred in directing the jury by summarising only the circumstantial evidence on which the prosecution relied and not giving equal prominence to matters relied on by the defence that pointed towards innocence.

Held by Blue J (Doyle J and Chivell AJ agreeing) dismissing the appeal:

1. The summing up was not imbalanced and the Judge did not err insofar as the Judge first summarised five topics of circumstantial evidence relied on by the prosecution and later summarised the defence response in relation to those topics (at [143]-[193]).

2. The summing up was not imbalanced and the Judge did not err in relation to other…

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AGLC
R v Ferguson [2018] SASCFC 130
Case
[2018] SASCFC 130
Decision Date

CaseChat Overview and Summary

The appellant, the former company secretary and chief executive officer of Australian Bight Abalone Ltd (ABAL), appealed his convictions. The central dispute on appeal concerned the Judge's summing up to the jury, which the appellant argued was imbalanced. The appeal was heard by Blue and Doyle JJ and Chivell AJ in the Supreme Court of South Australia.

The primary legal issue before the court was whether the Judge's summing up constituted a miscarriage of justice. Specifically, the appellant contended that the Judge erred by summarising only the circumstantial evidence relied upon by the prosecution, without giving equal prominence to the defence's evidence and submissions that pointed towards his innocence. While other grounds of appeal were initially raised, they were abandoned during the appeal process.

The court undertook a holistic assessment of the summing up to determine if it was imbalanced. The Judge had explained the principles of circumstantial evidence to the jury and then proceeded to outline the facts and circumstances upon which the prosecution relied. The appellant argued that for five specific topics of circumstantial evidence, the Judge only presented the prosecution's perspective and failed to mention the defence's evidence or closing submissions on those points. However, the court found no merit in this contention. It reasoned that in one instance, the Judge was merely addressing the existence of a stocktake dive and a spreadsheet, not the appellant's knowledge of them, which was a separate and critical issue. Furthermore, the court noted that the Judge had clearly identified the central issue of the trial to the jury as whether the appellant knew the information he provided was false and misleading, ensuring the jury understood the core of the case.

Ultimately, the court concluded that, on a holistic assessment, the summing up was not imbalanced as asserted by the appellant, and no miscarriage of justice resulted. Accordingly, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his convictions on the ground that the Judge erred in directing the jury by summarising only the circumstantial evidence on which the prosecution relied and not giving equal prominence to matters relied on by the defence that pointed towards innocence.[3][3] The notice of appeal contains several other grounds but they were abandoned at various stages in the appeal process.Background The appellant was the company secretary from July 2004 and chief executive officer from February 2005 of Australian Bight Abalone Ltd (ABAL). ABAL was incorporated in July 2004 to farm Greenlip Abalone (abalone) in offshore “cages” (cages). ABAL became the responsible entity in respect of five managed investment schemes involving the farming of abalone in cages (grower cages or grow-out cages) offshore near Waldegrave Island near Elliston on the West Coast of Eyre Peninsula. Investors in the schemes were called “growers”. The first managed investment scheme was established in 2005 (the 2005 Project) and further schemes were established each year thereafter up to and including 2009 (the 2006, 2007, 2008 and 2009 Projects respectively). ABAL also farmed abalone in its own cages (company cages or nursery cages) for supply of juvenile abalone (spat) to future projects. Traditionally during the second half of the twentieth century, abalone was either caught in the sea (wild caught abalone) or farmed in land-based (onshore farmed abalone). Hong Kong/China was and is the largest market for Australian abalone. Wild caught abalone generally commanded a higher price than onshore farmed abalone due to their different colour (vibrant green compared to pale flesh) and appearance (rough discoloured shell compared to smooth uniform shell). In 1997 Darren Tressider commenced designing and trialling a hybrid system in which abalone spat (juvenile abalone typically up to one year old) were grown in offshore cages (offshore farmed abalone). Mr Tressider’s system as at 2004 involved a series of cages placed in a grid in the sea.[4] Each cage was to have a circular ring of pvc pipe approximately 40 metres in diameter floating on the sea surface (acting as a float or buoy) and anchored to the sea floor. From each pvc ring was to be suspended a collection of net segments sewn together and closed at the bottom to form a parabolic shape (the primary nets). A series of trays (270 per cage) was to be placed inside and on the bottom of the primary nets and a covering net was to be sewn into place above each tray to form a pocket enclosing the tray. The cages were to be left in the sea for several months for each tray and the surrounding netting to accumulate macroalgae to act as a foodstuff for the abalone (conditioning). Abalone spat which had been grown in an onshore nursery for approximately eight months were then to be transferred into the trays at a rate of up to 220 per tray (up to 60,000 per cage). The spat were to be at least 17 millimetres across the widest part of the shell (size or length).[5] Runts (smaller less well performing abalone) were to be removed to ensure that only the better performing abalone grew out to maturity. The abalone were to be harvested and sold after three to three and a half years in the cages when they reached a size of approximately 120 millimetres and a weight of approximately 220 grams.[4] Similar cages had been used for tuna farming for some decades but not for abalone farming.[5] Abalone are curved but not round and “size” or “length” is used here to refer to the widest part of the shell.

Evidence

Evidence Before The Court

Ultimately the assessment whether the summing up was imbalanced and gave rise to a miscarriage of justice is a holistic assessment. However, it is necessary to consider each of the appellant’s contentions in turn.Circumstantial evidence supporting the prosecution case As observed above, the Judge summarised the respective evidence given by Mr Tressider and the appellant concerning communications, or lack of communications, about the stocktake dive. The Judge referred, correctly, to this evidence as direct evidence. No complaint is made about the Judge’s summing up in this respect. The Judge said that, in addition to this direct evidence, the prosecution relied on indirect or circumstantial evidence in support of Mr Tressider’s evidence. The Judge explained that, in approaching circumstantial evidence, it was necessary for the jury first to decide which facts it accepted as established by the evidence and secondly to consider what inferences it was prepared to draw from those facts. No complaint is made about the Judge’s summing up in this respect or about the Judge’s directions in general relating to circumstantial evidence. The Judge said that he was then going to go through the facts or circumstances upon which the prosecution relied. The appellant contends that, in relation to five topics of circumstantial evidence relied on by the prosecution and addressed by the Judge, the Judge only set out the use of the evidence as proposed by the prosecution and no mention was made of the defence evidence or what defence counsel submitted in closing on each topic. The existence and results of the stocktake dive The Judge identified the first circumstance as follows:The prosecution relies upon the fact of the 2007 stocktake: the fact that there was a stocktake dive conducted on 8 and 9 January 2007, and it relies upon the spreadsheet produced by Tressider as a result of the dive. The appellant contends that the stocktake dive was one thing but the critical issue was the appellant’s knowledge of it; the appellant denied knowledge of the stocktake dive and spreadsheet; and the Judge should have reminded the jury about the appellant’s evidence on that topic. There is no merit in this contention. First, in the passage extracted above, the Judge was not addressing the appellant’s knowledge of the stocktake dive or spreadsheet: the Judge was merely addressing their existence. The prosecution relied on the evidence of the divers about the stocktake dive and the tender of the spreadsheet to corroborate Mr Tressider’s evidence about their existence. While this supported Mr Tressider’s evidence as far as it went, it did not of course prove that Mr Tressider communicated with the appellant about it. Secondly, in context, there was no possibility that the jury did not understand that the question whether Mr Tressider communicated with the appellant about the stocktake dive and the spreadsheet was a critical issue, and indeed the central issue, in the trial. The passage of the summing up addressing circumstantial evidence was preceded by the Judge having identified for the jury what appeared to be the real issue in the case in the following terms:it seems to me – although it is a matter for you, not for me – it seems to me that the real issue for you is this: with respect to each of the 17 counts has the prosecution satisfied you beyond reasonable doubt that the accused knew that the information that he provided to the board, or disseminated in the public domain was false and misleading in a material particular? It seems to me that that is the issue which you must decide though I say, again, it is for you not for me.

Decision

Reasons for decision

On a holistic assessment, the summing up was not imbalanced as asserted by the appellant. No miscarriage of justice resulted from the summing up.Conclusion I would dismiss the appeal.DOYLE J: I agree that the appeal should be dismissed for the reasons given by Blue J. CHIVELL AJ: I agree that the appeal should be dismissed for the reasons given by Blue J.

Ratio Decidendi

Legal Principle Established

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