R v Glenys Ruth Scott Nos. SCCRM 95/504, 95/505 Judgment No. 5545 Number of Pages 27 Bankruptcy Offences
[1996] SASC 5545
•3 April 1996
COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DOYLE CJ(1), COX(2) AND MATHESON(3) JJ
CWDS
Bankruptcy offences - particular offences - Appellant convicted of offences under the Bankruptcy Act 1966 (Cth), section 269 - no mental element in offences established by this section defence of honest and reasonable mistake available to a limited extent - no basis for the defence on any count other than count 2 - direction on count 2 more than adequate. Bankrupty Act 1966 (Cth) referred to. He Kaw Teh v R (1985) 157 CLR 523; R v Duke of Leinster
(1924) 1 KB 311; Tilley v Official Receiver in Bankruptcy (1960)103 CLR 529, applied. R v Storen (CCA, No.5238, 25 Nov 1993, (unreported, available on SCALE)), not followed.
Criminal law - general matters - criminal liability and capacity - Statutory offence - purpose of legislation in remedying mischief inconsistent with presumption that mens rea required - presumption rebutted - defence of honest and reasonable mistake only rarely to be excluded by statute - scope of defence necesarily limited by requirements of statute. He Kaw Teh (1985)157 CLR 523, applied.
Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - Very brief summing up in complex case - not necessarily deficient for that reason alone - complaint that jury not properly assisted in distinguishing between counts, such that each would be considered separately - complaint that jury not properly instructed as to how evidence, or an acquittal, on one count might be used in relation to other counts - judge's directions were sufficient on these specific complaints - although more assistance preferable, brevity alone did not make the summing up inadequate - judge in summing up focussed on evidence of 1 witness without explaining its relevance - addition of irrelevant and prejudicial material - real possibility of jury being mistaken or misled - miscarriage of justice. Davies v R (1937) 57 CLR 170, applied. Warner v R (1994) 62 SASR 403; B v R
(1992) 175 CLR 599, distinguished.
Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - Failure of counsel to call witnesses - failure to cross-examine Crown witness on vital matters relating to same point - evidence directly relevant to one count and indirectly relevant to others comparison to "fresh evidence" cases - caution applied by courts in relation to such evidence going only to credibility - failure to lead evidence put defence case at a disadvantage - in combination with treatment of Crown witness in summing up, the failure was damaging - affidavits admissible to establish the miscarriage. Birks v R (1990) 19 NSWLR 677; Mickelberg v R
(1989) 167 CLR 259, applied. R v Armstrong (1983) 35 SASR 356, distinguished. Re Knowles (1984) VR 751, discussed.
HRNG ADELAIDE, 20-21 February 1996 #DATE 3:4:1996 #ADD 21:5:1996
Counsel for appellant: Mr W Wells QC with Mr I Press
Solicitors for appellant: I D Press
Counsel for respondent: Mr M Gray QC with Mr R Mayne
Solicitors for respondent: DPP (Cwlth)
ORDER
Appeal allowed.
JUDGE1 DOYLE CJ This is an appeal against convictions recorded upon the verdict of a jury.
2. The Information before the jury charged fourteen counts. Count 1, upon which the jury found the appellant not guilty, charged an offence under s269(1)(b) of the Bankruptcy Act 1966 ("the Act"). Counts 2-13 inclusive charged offences under s269(1)(a) of the Act. The appellant was found not guilty on count 7. Count 14 charged an offence under section 269(1)(ab) of the Act. On each but the two indicated the appellant was found guilty.
3. Because reference will have to be made to the provisions to the section, it is convenient to set out here the relevant provisions. They are as follows:-
"269.(1) An undischarged bankrupt shall not:
(a) either alone or jointly with another person, obtain
credit to the extent of $3,000 or more from a person without
informing that person that he is an undischarged bankrupt;
...
(ab) either alone or jointly with another person, enter into
a hire-purchase agreement with a person, or enter into a
contract or agreement for the leasing or hiring of any goods
from a person, being a hire-purchase agreement, contract or
agreement under which the amounts payable to that person
amount in the aggregate to $3,000 or more, without informing
that person that he is an undischarged bankrupt;
...
(b) carry on business under an assumed name, in the name of
another person or, either alone or in partnership, under a
firm name without disclosing to every person with whom he
or, if he is carrying on business in partnership under a
firm name, the partnership deals, his true name and the fact
that he is an undischarged bankrupt.
... "
4. At the time of the events the subject of the Information, the amount specified was $500 and not $3,000. These provisions are to be found in Part XIV of the Act, which Part contains a number of offence creating provisions, most of which are made up of a number of subsections and subparagraphs.
5. The circumstances giving rise to the charges against the appellant are as follows. In about 1979 the appellant operated a craft shop. The business failed and the appellant became bankrupt on 7 November 1980. The appellant moved from Adelaide, where she had been living, to Milang and lived there until she was discharged as a bankrupt in November 1983. In about 1984 the appellant set up a clothing manufacturing business called "Alexandrina Clothing Company". She was then living at Milang. She moved to Macclesfield and continued to conduct the business. She undertook certain commitments in the expectation of receiving a government grant, but the grant did not eventuate and the business failed. The appellant was bankrupted on her own petition in November 1987. The farm at Macclesfield in which she was living was sold and she moved to Mount Barker to live in about January 1988. In about April 1988 the appellant got into conversation with a Mrs Tucker, whom she said she had known when she lived at Macclesfield. This led to the appellant and Mrs Tucker setting up business together under the name "Heaven Scent Designs". Mrs Tucker provided flowers for weddings and was interested in making and selling bridal clothes, and the idea of the business presumably was to combine the complementary skills and interests of the appellant and Mrs Tucker. In addition, Mrs Tucker had a substantial amount of money which she was willing to make available to the business as capital. It was not disputed that the appellant and Mrs Tucker had known each other for some time. The appellant and Mrs Tucker consulted an accountant, Mr Tonkin, for some financial advice and a solicitor, Mr Willsmore, who drew up a partnership agreement. The partnership agreement was signed on 1 August 1988 and, after stamping, was returned by the solicitor with a covering letter dated 30 August 1988. Clause 22 of the partnership agreement, which is on the final page and immediately above the parties' signatures, reads as follows:-
"It is hereby expressly acknowledged and declared by the
parties hereto that the said GLENYS RUTH SCOTT is at the
date hereof an undischarged bankrupt."
6. By the time the agreement was returned by the solicitor the business name had been registered and the appellant and Mrs Tucker had opened an account at the ANZ Bank at Mount Barker in the name of the business. Mrs Tucker had already put funds into the account.
7. Mrs Tucker's evidence relating to clause 22 is unclear. The partnership agreement was posted to her by Mr Willsmore. She and the appellant signed it at her home. When asked if she had "read it all" before signing it, she said that she had. When it was suggested that she had "noticed" clause 22 and its terms she said "That's right." This does suggest, if accurately reported, knowledge that Mrs Scott was an undischarged bankrupt. She was then asked if she saw clause 22 and read it when she signed the agreement. She said she did not. The significance of this is unclear. She then said that when she signed the partnership agreement, the appellant to that stage had said nothing to her about the bankruptcy. She did not understand the difference between being bankrupt and being an undischarged bankrupt at the time. In cross-examination she confirmed that she read the partnership agreement before she signed it, but she said "...I didn't understand it totally ..." The meaning of this was not explored.
8. Mrs Tucker also said that nothing was said about Mrs Scott being an undischarged bankrupt when they opened the account at the ANZ Bank. She said that Mrs Scott first raised the fact that she was an undischarged bankrupt about half way through the period of the partnership, which suggests a time at about the end of 1988 or early 1989.
9. In the light of this evidence it was open to the appellant to argue (to the extent relevant) that Mrs Tucker was given clear notice of the bankruptcy by clause 22, even though Mrs Tucker may not have fully understood the meaning of clause 22. It was also open to the appellant to suggest that Mrs Tucker may not have appreciated the significance of oral communication of the same matter.
10. I add here that Mrs Tucker also gave evidence that she invested $21,000 in the partnership. When a dissolution agreement was signed that amount was to be repaid, but she received none of it. I do not consider that that evidence was relevant. Moreover, it was prejudicial to the appellant. No objection to it was taken by counsel for the appellant.
11. From September 1988 there occurred a series of transactions which gave rise to the fourteen counts on the Information. The first count, which charged her with carrying on a business in partnership under a firm name without disclosing to a person with whom the partnership dealt the fact that she was an undischarged bankrupt, related to the entering into a rental agreement in respect of premises to be used for the business, that having occurred in about September 1988. The remaining counts related to events occurring in the course of the business from April 1989. The partnership with Mrs Tucker was dissolved on 21 April 1989. Counts 2 and 3 related to events occurring before the dissolution of the partnership, the remaining counts relating to events occurring after the dissolution of the partnership.
12. In broad terms the counts related to the obtaining of credit in the course of the business, it being alleged that Mrs Scott did not disclose that she was an undischarged bankrupt. As to each count Mrs Scott said that she told the relevant person that she was an undischarged bankrupt or was satisfied that the relevant person knew that. The prosecution called a large number of people who gave evidence that in the course of the relevant dealings with Mrs Scott the fact that she was an undischarged bankrupt was not disclosed to them.
13. There was no count relating to the obtaining of credit from Mrs Tucker. Her evidence was significant because she was present when the account was opened at the ANZ Bank, she signed an application for credit which application was the basis of count 4, and because of the role which she played in the setting up of the business.
14. The tenor of the appellant's evidence was not just that she had told the relevant people that she was an undischarged bankrupt. Her evidence was further to the effect that the fact that she was an undischarged bankrupt was fairly well known in the district in which she lived, that she never made a secret of it, and that she had talked about it on a number of occasions with or in the presence of Mrs Tucker. Mrs Tucker may have been of some forensic importance, because if the jury were satisfied that the appellant did not disclose to her partner the fact that she was an undischarged bankrupt, this would make it all the more likely that she had not disclosed that fact to persons with whom she dealt.
15. I note here, because of its relevance later, that neither the accountant whom Mrs Tucker and the appellant consulted, nor the solicitor, were called to give evidence for the defence. Mrs Tucker was cross examined to the effect that Mrs Scott told her on more than one occasion that she was an undischarged bankrupt. But the transcript of the cross examination does not suggest that she was taxed with the fact that her signature appeared immediately below clause 22 of the partnership agreement. Nor was it put to her in cross examination that the subject of the appellant's bankruptcy was discussed with the solicitor or with the accountant.
16. Likewise, the appellant was not cross-examined on the issue of whether she had disclosed her bankruptcy to Mrs Tucker in the presence of the solicitor or of the accountant. The partnership agreement made it clear that she had disclosed her bankruptcy to the solicitor.
17. The last count on the information related to events which occurred in October 1990. It remains only to say that the business failed and on 22 November 1991 Mrs Scott was bankrupted, for the third time, on her own petition.
DIRECTIONS TO JURY - MENTAL ELEMENT
18. The Judge summed up to the jury on the basis that the critical issue on each count was whether the accused disclosed that she was bankrupt. He said:- "... the Crown doesn't have to prove that the accused, in not disclosing her status, acted dishonestly or fraudulently, all you have to find is that she did not disclose that she was bankrupt."
19. On appeal it was argued that this was wrong in law.
20. It was argued that in the statutory provisions "inform" and "disclose" were used in the sense of revealing that which was previously unknown so far as the discloser knows. This, coupled with the presumption, established by Australian authority, that "... the legislature intends a guilty intent appropriate to the nature of the offence to be an ingredient of the offence ..." (He Kaw Teh v The Queen (1985) 157 CLR 523 at 591 Dawson J), was said to lead to the conclusion that the appellant could not be convicted unless the prosecution proved that the appellant knew that the credit provider was unaware that the appellant was an undischarged bankrupt or proved that the appellant had no honest and reasonable belief either that the credit provider had received the information given by the appellant (as to her status) or that the credit provider already knew that the appellant was an undischarged bankrupt.
21. It is convenient to begin with the meaning of "inform" and "disclose". The acquittal on count 1 makes it strictly unnecessary to deal with "disclose", but it is unlikely that the two expressions would be used with significantly different meanings.
22. In my opinion "inform" and "disclose" are used in the sense of "to tell (one) of something", this being one of the meanings given for "inform" by The Shorter Oxford English Dictionary (3rd ed). It is possible (I do not need to decide) that "disclose" is used in a slightly different sense, the emphasis being on the idea of revealing or publicising the status of undischarged bankrupt. I say this only because sub-paragraph (b) imposes an obligation in relation to every person with whom a partnership deals, and to avoid imposing an impossible obligation, it may be necessary to understand "disclose" in a slightly more limited sense.
23. In my opinion it makes good sense to read "inform" in this sense. Section 269 is intended to protect persons dealing with an undischarged bankrupt. That will best be achieved if the bankrupt must disclose that status on the occasion of each relevant dealing. Otherwise, the person who forgets that a person is an undischarged bankrupt, or assumes from silence that the bankruptcy has terminated, is at risk. It is sensible to require the bankrupt to leave nothing to chance. It is reasonable not to rest the obligation upon the bankrupt's belief about the need to convey the information. In my opinion to require a bankrupt to tell a person what that person already knows - that the informant is an undischarged bankrupt - is not to impose an empty ritual. It is to ensure, at the risk of needless repetition on occasions, that the credit provider is told or reminded of a most material fact.
24. I do not consider that authority establishes the meaning for which the appellant contends.
25. It is true that a number of judgments dealing with section 269(a) or its equivalent on occasions use "disclose" as a synonym for "inform": R v Duke of Leinster (1924) 1 KB 311 at 316; R v Dyson (1894) 2 QB 176 at 178; R v Hartley (1972) 2 QB 1 at 5B, R v Miller (1977) 3 All ER 986 at 988b; R v Brown (1989) 46 A Crim R 28 at 30. But in none of those cases was the present point under consideration. And, in my opinion, "disclose" is capable of bearing the meaning of "to tell".
26. It might also be remarked that in R v Duke of Leinster (supra), a case dealing with the United Kingdom equivalent and a case cited in later decisions, Lord Hewart CJ said (at 316) that the provision posed three simple questions: "Was the defendant an undisclosed bankrupt?", "Did he obtain credit in excess of the stated amount?", and, "Did he in fact inform the person from whom he obtained the credit that he was an undisclosed bankrupt?" It would be surprising if His Lordship had overlooked a further decisive question - "Did the person from whom the credit was obtained know that he was an undisclosed bankrupt?" - or, in the context of spelling out the statutory requirement, surprising if His Lordship had simply left that question as implicit in his use of "inform".
27. In Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529 Kitto J said (at 534) that the purpose of the provision was to protect people in the giving of credit. The mischief to which the section was directed arose when, " ... a seller of goods delivers them to the buyer without requiring immediate payment, and does so without having present to his mind that the prospect of his receiving payment is subject to the special doubt which arises from the buyer's being an undischarged bankrupt."
28. But the fact that awareness of the status of the buyer is in issue does not establish that for which the appellant contends. The section operates upon the undischarged bankrupt who seeks credit. The best way of avoiding the mischief is to require the undischarged bankrupt to tell the credit provider, or remind the credit provider, of the relevant fact.
29. Granted, on my approach, the offence could be committed even though the credit provider knew that the other person was an undischarged bankrupt. But on the appellant's approach there would be no offence if the credit provider knew that fact but had forgotten it, knew it but thought that the bankruptcy had terminated, and so on.
30. For these reasons I conclude that the section requires the bankrupt to tell the other party of his or her status on the occasion of each relevant transaction. That obligation is imposed and exists even though the credit provider knows that the other party is an undischarged bankrupt.
31. The appellant's submission relating to the requirement to prove a mental element draws upon the approach taken by the High Court in relation to statutory offences in He Kaw Teh v The Queen (1985) 157 CLR 523. I have already referred in passing (above) to what Dawson J said on the point. In He Kaw Teh all members of the majority affirmed the existence of the presumption identified by Dawson J: see Gibbs CJ at 528-529, Brennan J at 565-566, Dawson J at 590-591.
32. The presumption may be rebutted. Gibbs CJ said (at 529-530) that this called for a consideration of the words of the statute, the subject matter with which the statute deals, and an inquiry as to whether putting the defendant under strict liability would promote the purpose of the relevant provision. Brennan J (at 566-567) emphasised the strength of the presumption and went on to say (at 567):
"... It requires clear language before it can be said that a
statute provides for a person to do or to abstain from doing
something at his peril and to make him criminally liable if
his conduct turns out to be prohibited because of
circumstances that that person did not know or because of
results that he could not foresee. However grave the
mischief at which a statute is aimed may be, the presumption
is that the statute does not impose criminal liability
without mens rea unless the purpose of the statute is not
merely to deter a person from engaging in prohibited conduct
but to compel him to take preventive measures to avoid the
possibility that, without deliberate conduct on his part,
the external elements of the offence might occur. A statute
is not so construed unless effective precautions can be
taken to avoid the possibility of the occurrence of the
external elements of the offence. ..."
33. Dawson J proceeded on the basis that (at 591): "... whatever the presumption, if any, that mens rea, to be proved by the prosecution, is an ingredient of a statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation. ..."
34. He went on to say that this was a matter to be negatived by the prosecution if raised by the defence case. He said that the concept of honest and reasonable mistake had a part to play only in statutory offences where the legislature had excluded guilty intent as an ingredient of an offence to be proved by the prosecution. He then went on to describe the process by which one decided whether, if guilty intent was not an element of the offence, honest and reasonable mistake nevertheless had to be negatived. He said (at 594):
"Resort must then be had to the subject-matter or character
of the legislation. Attempts have been made to categorize
those offences which have been regarded as absolute, but the
result is only helpful in a broad sense and the recognized
categories cannot be regarded as exhaustive. It is
generally accepted that statutes which create offences for
the purpose of regulating social or industrial conditions or
to protect the revenue, particularly if the penalty is
monetary and not too large, may more easily be regarded as
imposing absolute liability. This approach may be displaced
if to regard an offence as one of absolute liability could
not promote the object of the legislation by making people
govern their behaviour accordingly ... "
35. I now apply these principles to the section in hand.
36. My conclusion as to its meaning is of some significance. If the section imposed no obligation to inform a credit provider who already knew that the other person was an undischarged bankrupt, it would be easier to conclude that no offence was committed unless the latter person knew or had no honest belief that the credit provider was aware of the latter's status as an undischarged bankrupt. The knowledge of the credit provider, or the lack of it, would then be an element of the offence. But if the obligation is to tell the credit provider come what may, it is not so easy to see the scope for a mental element. The gist of the offence is the failure to tell, and one readily concludes that that failure is (subject to the question of honest and reasonable belief), sufficient to constitute the offence. Knowledge or a belief about the credit provider's knowledge of the bankrupt's status is irrelevant.
37. The next matter to be observed is that a number of other offence creating provisions in Part XIV of the Act specifically provide for a mental element. Common instances are "with intent to defraud" (sometimes at large, sometimes referring to the creditors), "wilfully", "knowingly", "to the best of his knowledge and belief". Other provisions, like section 269, are silent as to the mental element. At one time considerable weight might have been given to this pattern. But it seems to me that in light of the strength of the presumption referred to in He Kaw Teh (supra), such a pattern is relevant only if it convinces one that the silence indicates an intent to displace the presumption, and if the pattern does not reflect an assumption that the presumption operates. In the present case I am not so convinced, and I put this matter i.e. a consideration of Part XIV as a whole, to one side.
38. The next matter to be observed is that English authority supports the view that there is no mental element which the prosecution must prove. This was held by the Court of Criminal Appeal in R v Duke of Leinster (1924) 1 KB
311. There, Lord Hewart CJ said (at 315-316):
"... The provision therefore by its express terms imposes an
absolute obligation upon an undischarged bankrupt who
obtains credit to give the information regarding his
position. Moreover, to read the subsection otherwise would
be inconsistent with its object and purpose and would make
it to a great extent nugatory. The object of the
sub-section is to protect the person from whom the bankrupt
seeks to obtain the credit. That person is not protected
unless disclosure is actually made to him of the fact that
the person obtaining the credit is an undischarged bankrupt.
The provision would be of practically no avail if its
express directions were not carried out. Accordingly,
whether one has regard to the terms of the sub-section or to
its intention and purpose, one finds that it imposes an
absolute obligation to give the information referred to ..."
39. This decision has been referred to with approval, and still stands. A reference to it by Lord Reid in R v Warner (1969) 2 AC 256 at 276 might convey a slight doubt about its status, but I suspect that the explanation for this lies in Lord Hewart's reference to the offence as absolute, a matter to which I will return.
40. Lord Hewart's conclusion is supported by the fact that the United Kingdom equivalent of sub-paragraphs (a) and (b) of s269(1) is followed by s156 which deals with, among other things, obtaining credit "under false pretences or by means of any other fraud". The close proximity of another provision, covering similar ground and involving a mental element, suggests the result which Lord Hewart CJ reached. As it happens, s265(5) of the Act contains a provision similar to s156 of the United Kingdom Act.
41. There is no need to repeat the reasons which Lord Hewart CJ gave for his conclusion. They speak for themselves.
42. In my opinion the terms of sub-paragraphs (a) and (b) do suggest that the mental element for which the appellant contended is not part of the offence. The thrust of the offences is the failure to inform (or tell), the failure to disclose. A belief about the credit provider's knowledge is irrelevant. The fact that s265(5) punishes similar conduct if there is a fraudulent intent provides some support for the same conclusion. So does the subject matter. The purpose of s269, as I understand it, is to protect persons dealing with an undischarged bankrupt by requiring that status to be drawn to their attention each time there is a relevant dealing. An intention to require, if necessary, reminders that a person is an undischarged bankrupt, makes practical sense. I assume that as a matter of routine the attention of a bankrupt would be drawn to the obligations imposed by provisions such as s269.
43. I consider further that the imposition of strict liability will assist in the enforcement of the Act. The purpose of the section is, as already observed, to require the undischarged bankrupt to bring that status to the attention of a credit provider. It is not for the undischarged bankrupt to consider the need to do so. There is an analogy with provisions dealing with public health and public safety which require certain precautions to be taken or a certain standard to be achieved, and which punish the failure to do what is required even when it occurred unknowingly. I consider that Parliament may well have intended to punish the forgetful undischarged bankrupt, and even the undischarged bankrupt who thought that the credit provider was aware of his or her status, because of the importance of this being drawn to the credit provider's attention on each relevant occasion.
44. I have not overlooked the significance of a criminal conviction and the fact that the maximum penalty is 3 years' imprisonment. But this is not a case of punishing a person who was unable to choose whether to engage in the prohibited conduct or not. In my opinion the circumstances before this Court are distinguishable from the circumstances before the High Court in He Kaw Teh. I repeat the following passage from the judgment of Brennan J (at 567), which passage indicates the point of distinction:
"... However grave the mischief at which a statute is aimed
may be, the presumption is that the statute does not impose
criminal liability without mens rea unless the purpose of
the statute is not merely to deter a person from engaging in
prohibited conduct but to compel him to take preventive
measures to avoid the possibility that, without deliberate
conduct on his part, the external elements of the offence
might occur. A statute is not so construed unless effective
precautions can be taken to avoid the possibility of the
occurrence of the external elements of the offence. ... "
45. In my opinion Parliament may well have taken the view that punishment was imposed to emphasise the importance of the undischarged bankrupt taking precautions to protect credit providers.
46. Counsel drew to the attention of the Court an unreported decision of this Court in R v Storen (Court of Criminal Appeal, judgment no S4238, 25 November 1993, unreported).
47. That was an appeal against sentence. The appellant in that case was convicted of offences under the same provisions of the Act. The complaint was that the sentence was manifestly excessive.
48. Apparently the offences were treated by the sentencing judge as deliberate, the appellant well knowing that he was in breach of his statutory obligations. Counsel for the appellant complained on appeal that the sentencing judge erred in saying that the conduct of the appellant amounted to a course of deliberate fraud and dishonesty. Counsel argued that these were absolute offences, not involving a mental element akin to fraud.
49. Olsson J, with whose judgment the other members of the Court agreed, rejected this argument. He said that the offences did involve a mental element of turpitude and dishonesty. The crux of them, he said, lay in knowingly concealing from others, by silence, the fact of bankruptcy.
50. It seems that the Court's attention in that case was not directed in any detail to the issue of the legal elements of the offence, and no reference is made to any of the relevant cases. Nor are the remarks of the Court unequivocal. Olsson J went on to say:
"The statute is expressly designed to ensure that third
parties are not mislead into entering into financial
transactions with persons who are already in financial
difficulty and are of no substance. What is essentially
involved is the notion of dishonesty by omission where there
is a duty to disclose so as to protect the otherwise
unsuspecting public."
51. I do not think that that approach is inconsistent with the approach which I have already foreshadowed.
52. In dealing with the appeal against sentence it was not necessary for the Court to form a view about the essential elements of the offence. The sentencing judge had made findings of fact which supported his statement that there was a course of deliberate fraud and dishonesty. As I have already mentioned, there is no reason to think that the Court was directing its mind to the point now in issue, and there is every indication that the Court was not assisted by the citation of relevant authority.
53. I consider that, under all the circumstances, this Court is not obliged to and should not follow the view of the section expressed by Olsson J.
54. For those reasons I reject the submission that the prosecution had to prove knowledge on the part of the accused that the credit provider was unaware of the accused's status as an undischarged bankrupt. I would also reject a submission that the prosecution had to negative a belief that the credit provider already knew of the accused's status as an undischarged bankrupt or had already received information about that.
55. But it does not follow that the offence is, as Lord Hewart CJ described it, an absolute offence. As Gibbs CJ said in He Kaw Teh (at 533):
"These cases establish that if it is held that guilty
knowledge is not an ingredient of an offence, it does not
follow that the offence is an absolute one. A middle
course, between imposing absolute liability and requiring
proof of guilty knowledge or intention, is to hold that an
accused will not be guilty if he acted under an honest and
reasonable mistake as to the existence of facts, which, if
true, would have made his act innocent. ... "
56. Australian authority supports this view, and further supports the further remark of Gibbs CJ (at 535): "... However it has now become more generally recognized, consistently with principle, that provided that there is evidence which raises the question the jury cannot convict unless they are satisfied that the accused did not act under the honest and reasonable mistake... "
57. See also Brennan J at 574, Dawson J at 591-592. In my opinion it is only rarely that one would treat a statute as excluding the availability of this defence.
58. What scope is there for it in the present case? The statutory provision requires the undischarged bankrupt to inform or tell the credit provider of his or her status each time credit is obtained (I do not examine the precise meaning of "obtain"). Forgetfulness, or a belief that there is no reason to do what the Act requires, cannot avail an accused under this defence. But in some situations an accused might honestly and reasonably believe that he or she has informed or disclosed as required. In the present case, if the accused had given the partnership agreement to a credit provider, had informed the credit provider that cl22 (see above) should be read, and believed that the credit provider had read cl22, there would be a basis for the defence.
59. In the nature of things, and in the light of my view of the requirements of s269, the scope for the operation of the defence is necessarily limited, but I do not read the section as excluding it altogether.
60. In the present case the judge was not asked to direct the jury in terms of this defence. But did the facts in relation to any count provide a basis for it, such that the jury should have been directed on it?
61. In my opinion there was no basis for the defence on those counts where the essential issue was whether, in conversations with particular persons, the accused told them that she was an undischarged bankrupt. Either the jury was satisfied that she did not, or an acquittal must have followed.
62. But count 2, relating to dealings with the ANZ Bank, did require advertence to the defence. The accused said, and bank witnesses denied, that bank officers were given a copy of the partnership agreement. The accused's evidence did not include a claim that she requested the bank to read the agreement, let alone cl22 in particular. It may be that the jury rejected the accused's evidence that the bank was given a copy of the partnership agreement, but if it did not, the issue would arise of whether the provision of the agreement could provide a basis for the defence under consideration. With some hesitation I consider that this count required further directions on the point. But the judge told the jury that if the bank saw the partnership agreement, "... it was informed, because of clause 22". If anything, that was too favourable. In the light of that direction the jury must have been satisfied that the bank was not given a copy of the partnership agreement. No complaint can be made about the lack of a more detailed direction.
63. On count 3, relating to advertising in the Yellow Pages, the accused said that she told persons who spoke to her of her status. The jury must have rejected that evidence. The accused also said that because she was told a credit check had been done, she believed that the credit provider must have known of her bankruptcy, because the credit check would reveal it. In my opinion such a belief could not suffice to support the defence. It is no more than a belief that the credit provider has the relevant knowledge from another source.
64. On certain other counts the accused relied in evidence, wholly or in part, on claims that she disclosed her status to an intermediary (not the agent of the credit provider) and that she believed that such person would have passed the information on. In my opinion that does not suffice. But in one case, count 4, the accused did claim to have informed the credit provider's acknowledged agent of her status. The reference to this is a fleeting one (transcript p653). The jury was not directed that communication to the credit provider's agent was sufficient (and in my opinion it was) nor that an honest and reasonable belief that the agent would inform the credit provider provided a defence (as in my opinion it did). Once again, the factual basis was flimsy, but this count did require a further direction.
65. It follows that in my opinion the conviction on count 4 should be quashed, but the directions on other counts were sufficient, at least in relation to the point under consideration.
ADEQUACY OF SUMMING UP
66. The judge summed up very briefly. After a trial spread over some 14 days with 40 prosecution witnesses, the summing up occupied some 27 minutes. The judge did not descend to detail on any count. He told the jury to consider each count separately. He did summarise Mrs Tucker's evidence, and the evidence relating to the opening of the ANZ account. He clearly put to the jury the central issue - were they satisfied beyond reasonable doubt that the accused did not tell the person with whom she was dealing that she was an undischarged bankrupt?
67. A trial judge cannot be required to conform to a particular style or approach in summing up. The question is whether the approach taken had the result that the jury was not given that guidance which it required to enable it properly to relate the evidence to the directions on the law.
68. I believe that many, perhaps most judges would have thought it desirable to give the jury a brief sketch of the evidence on each count, and to identify for the jury the event or statement upon which the accused relied. This would not have produced an unduly long summing up. But it does not follow that the summing up was deficient. Proper weight must be accorded to the assessment of the trial judge of the need to do this.
69. But there is another point. The approach of the trial judge, it might be said, left the jury in the position of having to accept or reject the defence case as a whole. They were not assisted in distinguishing, if appropriate, between different counts. The judge did, however, warn the jury to consider each count independently. And the jury did acquit on two counts. The complaint is nevertheless that he did not assist them to consider each count separately.
70. Complaint was also made that he did not direct the jury on how evidence on one count might be used in relation to another count. As to that, in my opinion such a direction in a case like this would have caused more confusion than it was worth. There was no particular reason to think that the jury would use evidence in an impermissible fashion, particularly in light of the warning to consider each count separately.
71. Further complaint was made of the failure to tell the jury how an acquittal on one count might be used in relation to other counts. In some cases an acquittal on one count will be a most material factor in relation to other counts. This will obviously be so, for example, when an acquittal reflects or might reflect on the credibility of a complainant involved in other counts: cf Warner v R (1994) 62 SASR 403. Such reasoning does not apply in the present case. Each count related to a different credit provider or person dealing with the partnership. It was not a case in which the prosecution relied upon a system or scheme, although I recognise that it was open to the jury to see some sort of pattern in the accused's behaviour.
72. It seems to me that the judge's warning to the jury that each count should be considered separately was, in this case, sufficient.
73. I now return to the more general complaint that the jury was not adequately assisted. If the only issue was the brevity of the summing up, I would have concluded that the summing up was adequate for the case in hand, even though in my opinion more assistance would have been preferable. I remind myself that on the counts under consideration the central issue was whether the jury was satisfied that the accused's evidence was to be rejected. Of course, there were differences in the facts, and points to be made about particular counts. But I am not able to say that the jury required detailed instructions before they could adequately understand and give effect to the case put forward by the defence: cf B v The Queen (1992) 175 CLR 599 at 605.
74. But there is more to the case than that.
75. It seems to me that Mrs Tucker's evidence was relevant both generally as a matter of background and to the extent that it bore upon the count involving the ANZ Bank. But she was the only witness upon whose evidence the judge expanded, and he did no without explaining its relevance. By this I mean that he did not remind the jury that her evidence was not directly relevant on other counts, and thus they could accept her evidence but not be satisfied that the accused had failed to disclose her bankruptcy to other people. In relation to clause 22 of the partnership the judge said "Mrs Tucker says she read the agreement but didn't notice the clause at the time." I appreciate that the judge was better placed than me to assess the effect of her evidence, but as my summary of her evidence (above) indicates, it may be that what she was saying was really that she did not understand clause 22.
76. This emphasis on Mrs Tucker, the lack of explanation of the relevance of her evidence and the possible misstatement of its effect, was potentially damaging to the accused. it may have left the jury thinking that if the appellant did not tell Mrs Tucker of her bankruptcy, she was unlikely to have told others. The fact that the jury acquitted on two counts shows that not too much should be made of this reasoning, but the emphasis on a peripheral witness, coupled with the absence of a consideration of individual counts which would have put her in context, causes me concern.
77. Added to this is the fact that the judge reminded the jury that Mrs Tucker put $21,000 in to the partnership and got nothing back. That, as I have already said, was not relevant and was prejudicial.
78. Is there a real possibility that the approach taken to Mrs Tucker, combined with the brevity of the summing up in other respects has resulted in the jury being mistaken or misled? That is the test which must be applied here: Davies v R (1937) 57 CLR 170 at 180.
79. In the end I consider there is such a possibility, and that for that reason the convictions cannot stand. I have not found it at all easy to answer the question just posed, but in the end I am persuaded that the matters referred to, in combination, may have caused a miscarriage of justice.
ADMISSIBILITY OF EVIDENCE
80. Evidence was given by the prosecution of the appellant's first and third bankruptcies. It was given by consent. When it was tendered the trial judge told the jury: "These simply go to prove this lady has been bankrupt three times."
81. Evidence was also given that the appellant had been informed of her obligations under s269. The point was made on appeal that, if the section imposed strict liability, the appellant's knowledge of its requirements (to which a previous bankruptcy might be relevant) was irrelevant, and that a later bankruptcy was completely irrelevant. It is also relevant to note that at all times (including when interviewed by police) the appellant admitted she knew of the requirements of the section. The only issue was whether she had complied.
82. In my opinion the evidence was not relevant to the prosecution case, but its admission could not have affected the outcome, could not have deprived the appellant of a chance of acquittal open to her. Her own evidence involved the disclosure of the first bankruptcy, her case being that she was not loath to discuss it and that people in the district knew about it. I do not consider that any prejudice could have flowed from the admission of the evidence. I do not consider that there was an obligation to warn the jury against the prejudicial use of such evidence, because I do not think there is any risk of the jury having so used it.
83. It is unnecessary in the circumstances to consider the effect on the ground of appeal of the appellant's counsel having consented to the evidence going in. It may have been a deliberate tactical decision to do so, and if it was I would not lightly conclude that the appellant could now complain about it.
CASE TO ANSWER
84. Complaint was made that on counts 2 and 9 there was no case to answer because there was, on the Crown case, no evidence capable of satisfying the jury that the credit provider had not been informed.
85. Count 2 related to the obtaining of credit from the ANZ Bank. Count 9 related to the obtaining of credit from the National Australia Bank.
86. No submission of no case to answer was made at trial. Counsel for the appellant argued that that did not matter if an error was made, and that it was no answer to point to evidence emerging as part of the defence case, relying upon R v Johnson (1977) 22 SASR 161 at 182-183, Presher v R (1988) 37 A Crim R 70 at 78-79 and Glennon v R (1994) 179 CLR 1.
87. Counsel argued that although various bank officers were called to give evidence, including officers who had dealt with the appellant, and although they denied that the appellant informed them of her bankruptcy, there was no evidence establishing who made the decision to grant credit and establishing that that person was unaware of the appellant's status. A similar submission succeeded in R v Owen (1951) VLR 393 at 403-404; 15 ABC 132 at 146-148.
88. In my opinion it is unnecessary to deal with the question of whether the evidence given in the defence case may be taken into account. The reason for this is that the case turned upon whether the appellant informed the bank of her status. It was not necessary to prove that the bank, or a particular officer, was unaware of her status, although that was part of the prosecution case. The case was about what the appellant told the bank officers with whom she had dealt. It would be unrealistic to find that there was no case to answer because there might be some other bank officer whom she might have informed (let alone who might know from other sources), there being no suggestion on the material before the court that the appellant had dealt with anyone other than the witnesses called. Moreover, there was evidence that one of the witnesses on each count had authority to approve the granting of credit. In my opinion a submission of no case to answer was doomed to failure.
ERROR BY COUNSEL - MISCARRIAGE OF JUSTICE
89. On the hearing of the appeal the appellant tendered three affidavits, one in which she was the deponent, one sworn by an accountant, Mr Tonkin, and one sworn by a solicitor, Mr Willsmore.
90. The effect of the appellant's affidavit was that she informed her then solicitor, who was also counsel at trial, that Mr Tonkin and Mr Willsmore were available to give evidence at trial. She said also that she had contacted each of them to ensure that they were able and willing to give evidence. The matter of calling them was discussed with her counsel shortly before trial and at the trial. In the end, very close to the end of the trial, her counsel asked her if the witnesses were ready to come in to give evidence. Her counsel said that he had not spoken to any of the witnesses and that he thought that the appellant was going to speak to them. At all times the appellant had thought that her counsel was going to speak to and arrange for the attendance of the witnesses. Because the witnesses were required at short notice, so the affidavit implies, neither Mr Willsmore nor Mr Tonkin were called. In their affidavits both Mr Willsmore and Mr Tonkin state that they believed that the fact of the appellant's undischarged bankruptcy was discussed at meetings at which Mrs Tucker and the appellant were present.
91. Evidence that the bankruptcy was discussed with the solicitor and accountant in Mrs Tucker's presence was relevant evidence. As I said in summarising the facts of the case at the beginning of this judgment, it was open to the jury to infer that if the appellant did not inform her partner, Mrs Tucker, of the bankruptcy she was unlikely to have informed others of that. I noted also that Mrs Tucker was not taxed with the fact that her signature appeared immediately below clause 22 of the partnership agreement nor was she cross examined to the effect that the appellant's bankruptcy was mentioned in discussions with the solicitor or with the accountant.
92. These matters take on an added significance because of the fact that Mrs Tucker was the only Crown witness whose evidence the judge canvassed in any detail.
93. Complaint is made that the failure of counsel to call these witnesses has resulted in a miscarriage of justice, because of their importance.
94. It appears now to be settled that, when it is sought to set aside a conviction on the ground that counsel at trial acted incompetently or contrary to instructions, the crucial question to be argued is not the incompetence of counsel but whether a miscarriage of justice resulted at trial. The issue of miscarriage of justice has to be considered in the light of the role of counsel, the fact that ordinarily the client is bound by the decisions of counsel and in the light of the wide discretion which counsel has as to the conduct of the trial.
95. This appears from the principles laid down by the Gleeson CJ in Birks v R
(1990) 19 NSWLR 677 at 685:
"1. A Court of Criminal Appeal has a power and a duty to
intervene in the case of a miscarriage of justice, but what
amounts to a miscarriage of justice is something that has to
be considered in the light of the way in which the system of
criminal justice operates.
2. As a general rule an accused person is bound by the way
the trial is conducted by counsel, regardless of whether
that was in accordance with the wishes of the client, and it
is not a ground for setting aside a conviction that
decisions made by counsel were made without, or contrary to,
instructions, or involve errors of judgment or even
negligence.
3. However, there may arise cases where something has
occurred in the running of the trial, perhaps as a result of
"flagrant incompetence" of counsel, or perhaps from some
other cause, which will be recognised as involving, or
causing, a miscarriage of justice. It is impossible, and
undesirable, to attempt to define such cases with precision.
When they arise they will attract appellate intervention."
96. These principles were approved by this Court in R v Oliviero (1993) 61 SASR 354.
97. In my respectful opinion, this approach is correct in principle because it concentrates on the question of miscarriage, rather than whether counsel has been negligent or otherwise remiss, although that of course remains relevant as an intermediate or subsidiary issue.
98. As the Victorian Full Court made clear in Re Knowles (1984) VR 751, the type of miscarriage under consideration is that which falls into the second category identified by Barwick CJ in Ratten v R (1974) 131 CLR 510, namely, where something occurred or did not occur such that the trial became unfair. This category is said in Re Knowles (supra, at 761) to contain such a wide variety of circumstances that it is not helpful to seek to define them exhaustively, but, "In deciding whether there has been a miscarriage of justice, considerations of degree involving an assessment of the importance of a particular defect or omission in the actual circumstances of the trial are relevant": Re Knowles at 761.
99. In this way, the relevant principles may be similar to those in cases where the failure of the prosecution to call a witness leads to a miscarriage of justice. As the High Court has shown, what is in question is not any alleged misconduct of the prosecution, but whether a miscarriage has resulted: R v Apostilides (1984) 154 CLR 563 at 578.
100. I repeat that this is not to deny the relevance to the question of miscarriage of the explanation for counsel's conduct or the relevance of the degree of incompetence of counsel. These factors may be highly important, but the important thing to bear in mind is that its importance is derived only through the question of miscarriage.
101. It goes without saying that such a complaint is approached by the court with considerable caution: see R v Armstrong (1983) 35 SASR 356; Birks at 684.
102. It is useful, in assessing the importance of those omissions, to refer to a few of the authorities which bear upon the main omission in this case, namely, the failure to call the witnesses Tonkin and Willsmore on the issue of whether Mrs Tucker had been made aware of the appellant's bankruptcy, and the linked matter of the lack of cross-examination of Mrs Tucker as to vital matters relating to this point.
103. In R v Armstrong (1983) 35 SASR 356, this Court considered the question of whether an accused person had been denied the opportunity to give sworn evidence through the conduct of his counsel. That case revolved mainly around the question of the burden of proof on the appellant as to showing that he had been denied this opportunity. I do not consider it generally helpful as to the importance of the omission in this case, and the Crown had in fact conceded in that case that, if it were shown that the opportunity had been denied, then there would be a miscarriage of justice: at 370.
104. In Re Knowles (1984) VR 751, the Victorian Full Court considered a case where counsel had failed to call two witnesses because of an erroneous belief that their evidence would not be relevant or admissible. The case concerned a trial for murder. The petitioner alleged that the stabbing of his de facto wife had occurred by accident. She had suddenly become belligerent and abusive after eating and drinking at a neighbour's flat. He had feared for her safety and that of her children, and had attempted to take the knife from her. In the course of a struggle she had been accidentally stabbed.
105. Available to the defence was testimony from two people who had previously been in relationships with the deceased woman. One had been engaged to the deceased some years earlier, but had broken off the engagement because the deceased became aggressive and violent after the consumption of only moderate amounts of alcohol. The other potential witness was the former husband of the deceased, who had deposed that the deceased had been so aggressive and argumentative that he had thought her mentally unstable.
106. As I have mentioned, counsel erroneously thought that this evidence could not properly be called. The petitioner argued that he had not received a fair trial, and a miscarriage had occurred.
107. The Full Court considered that this evidence was credible and would have put a different complexion on the case if it had been presented (at 762). The Court considered that, as the petitioner had not chosen to not call the evidence, and counsel had been mistaken as to the ability to have it admitted, there was a "vitiating factor" such that a miscarriage may have arisen. The error by counsel was a "fundamental error" (at 770, 771), and in the circumstances its omission had brought about a miscarriage of justice (at 771).
108. In Birks v R (1990) 19 NSWLR 677, the Court of Criminal Appeal was faced with a case involving a conviction for rape and other associated charges. The accused man was a stranger who had come to the complainant's house at night. The complainant testified that he had unexpectedly entered her house, dirty and foul-smelling, and surprised and alarmed her. She had hit him with a torch, and he had then punched her, threatened her with violence to both her and her children, and had vaginal, anal and oral intercourse with her.
109. Counsel for the accused cross-examined the complainant. He put it to her that the intercourse had been consensual. He did not put to her that anal intercourse had never happened, or put to her an exculpatory account of how she had suffered her facial injuries. He had, however, been instructed as to these matters by the accused.
110. The appellant then testified. He admitted oral and vaginal intercourse, saying that it was consensual. He denied anal intercourse. He said that he had attempted to ward off the blow with the torch from the complainant, and the torch had glanced off and struck the complainant on the face.
111. In cross-examination of the accused, the prosecutor made a great deal of the fact that the complainant had not been cross-examined on these matters, with the aim of showing that they were fabrication which had been made up in the witness box. The prosecutor suggested that the accused man was lying when he said that he had instructed his barrister as to these matters. The prosecution address and the summing-up both reflected the damage done to the credibility of the accused. In the summing-up, the jury were invited to take into account the prosecutor's cross-examination of the accused on that subject when assessing credibility. Defence counsel failed to call evidence as to what the instructions had been or to object to the unravelling of these instructions in the witness-box.
112. The Court considered that these factors, and the initial failure to cross-examine, had led to a miscarriage of justice. This appears to have been because of the central importance of these matters to the trial.
113. I return now to the present case.
114. The evidence of Mr Tonkin and Mr Willsmore was relevant to the credibility of Mrs Tucker. I have already explained how it was relevant. It was also indirectly relevant, in my opinion, to count 2 relating to the dealings with the ANZ Bank. Mrs Tucker was present during dealings with officers of the ANZ Bank.
115. Count 2 was the only count, as I understand the evidence, to which the credibility of Mrs Tucker was directly relevant. In relation to count 4 it is true that Mrs Tucker signed the relevant application for credit. That document, however, spoke for itself and apparently did not disclose the bankruptcy. Even if Mrs Tucker knew of the appellant's bankruptcy, a belief by the appellant that Mrs Tucker would disclose it to a credit provider would not provide a basis for a defence, having regard to my approach to the meaning of the statutory provision.
116. It can therefore be said that with the exception of count 2 the evidence from Mr Willsmore and Mr Tonkin was confined in its relevance to its impact on the credibility of Mrs Tucker. But, as I have already noted, it was open to the jury to reason that if the fact of the bankruptcy was not disclosed to Mrs Tucker it was less likely to have been disclosed to others. Although an impressive line of witnesses testified that the appellant did not disclose her bankruptcy to them, the jury's approach to this might have been coloured by its approach to Mrs Tucker, who was closely involved in the setting up of the business. It seems to me that Mrs Tucker was of considerable importance in the prosecution case.
117. Did the failure to lead this evidence give rise to a miscarriage of justice? I put the question this way because the appellant must demonstrate that it did if she is to succeed. That is so because the power of the Court to intervene arises only if a miscarriage of justice resulted from the failure to lead the evidence.
118. What is the test which is to be applied in deciding if there was a miscarriage of justice? Common sense, and a good deal of case law, establish that the concept of a miscarriage of justice is not to be broken down into a series of confined categories. But in my opinion in a case like the present an appropriate approach to take is that which has been taken in relation to so-called "fresh evidence" - evidence not known to the accused at the time of the trial and not reasonably able to have been discovered. In such a situation the authorities establish no single formula, but the approach which has been taken by Judges of the High Court is essentially the same. In Mickelberg v The Queen (1989) 167 CLR 259 at 273, Mason CJ said that: "... The proper question is whether the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial."
119. Brennan J said (at 275) that the question was whether: "... The jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused."
120. Toohey J and Gaudron J said (at 301) that: "... The fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (citation omitted) or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the (accused)' ... "
121. I refer in passing to the discussion of this matter by Kirby ACJ in Drummond v The Queen (1990) 46 A Crim R 408 at 419-420. I note also that for obvious reasons the Courts have been cautious in their approach to complaints of miscarriage based on fresh evidence going only to the credit of a material witness: see Zaidi v The Queen (1991) 57 A Crim R 189 at 193-194 Priestley JA.
122. To my mind the safer approach is to apply the test established by Mickelberg v The Queen (supra) and to apply that test paying appropriate attention to the nature of the evidence in question.
123. The evidence which was not adduced was capable of putting a very different light on the case. The tenor of the defence was, apart from specific claims that the bankruptcy had been disclosed, that the appellant had been quite open in discussing her financial position with others. It was important to support that where possible. As the defence case unfolded, that approach was quite unsupported. Evidence from disinterested witnesses that the bankruptcy had been disclosed to Mrs Tucker would have been quite weighty, and would have put the appellant in the position of being able to say that if she was open with Mrs Tucker, why would she not be open with others. I do not ignore the impact of the evidence of the witnesses who dealt with the appellant, and who denied that she told them of the bankruptcy. But I consider that the failure to lead the relevant evidence put a real cloud over the defence case, and that the evidence could have led the jury to have a reasonable doubt about her guilt.
124. In the end, I consider that the appellant has made out her case on this point. I might not have reached this conclusion if this point stood alone, but in the present case it seems to me that the combined effect of the treatment in the summing up of Mrs Tucker and of the failure to call the evidence from Mr Willsmore and Mr Tonkin is that each has compounded the other. The treatment in the summing up of Mrs Tucker's evidence was all the more damaging because there was no answer to her evidence. The end result is that but for the combined effect of these errors the jury might have acquitted the appellant.
125. In reaching this conclusion I have taken into account the affidavits of counsel at the trial, of Mr Willsmore and of Mr Tonkin. In my opinion they are admissible on this point. There are some deficiencies in the affidavits, but the effect of them is clearly that the defence had available to it important evidence, because it was potentially persuasive, which counsel mistakenly regarded as not important.
SENTENCE
126. In the light of my conclusion it is unnecessary to deal with the appeal against sentence.
CONCLUSIONS
127. In my opinion the appeal should be allowed and the convictions should be set aside. Although the appellant has served the custodial part of her sentence, a retrial should be ordered. On the prosecution case, these were serious offences. I add, for what it is worth, that both prosecution and defence appear to me to have lead a good deal of evidence of doubtful relevance and value. I would expect that any retrial would be somewhat shorter than the trial.
JUDGE2 COX J In my opinion this appeal should be allowed, the convictions set aside and a re-trial ordered. I agree with the reasons of the Chief Justice.
JUDGE3 MATHESON J I have had the advantage of reading in draft the reasons of Doyle CJ. I am in substantial agreement with them. Like his Honour, I have reached the conclusion that the cumulative effect of several aspects of the trial resulted in a miscarriage of justice. Those aspects bear on the credibility of the appellant, which was obviously vital from a defence point of view, and the relevance thereto of the success of any attack on the credibility of her former partner who was called by the Crown, namely Mrs K O Tucker. Mrs Tucker asserted in evidence that she was unaware of the appellant's bankruptcy until halfway through the period of their partnership.
2. The appellant was represented, but not on the appeal, by counsel who was admitted to practice in South Australia on 3 February 1992. He said in an affidavit which I would admit that he had previously had substantial experience in the criminal jurisdiction of the Malaysian courts but since admission in South Australia had acted as counsel in just five District Court trials before the case at bar. I assume from his affidavit that this case was his first Supreme Court trial. Counsel for the appellant sought to tender on the appeal, and I would admit, affidavits respectively from an accountant, Mr S B D Tonkin and from a solicitor, Mr J W Willsmore.
3. Mr Tonkin deposed, inter alia:
"5. Between approximately June 1988 and August 1988 Glenys
Scott and Kate Tucker attended at my office for a meeting.
6. At that meeting the bankruptcy of Mrs Scott was discussed
between myself, Mrs Tucker and Mrs Scott. I believe that I
made a point of informing Mrs Tucker that there were certain
implications and consequences of setting up a partnership
with another person who is an undischarged bankrupt. I
believe that I informed Mrs Tucker that as Mrs Scott was an
undischarged bankrupt she would have to be aware of her
responsibilities in that regard.
7. I believe that I would have said to Mrs Tucker that she
must understand that creditors must be made aware of the
bankrupt state of her partner. I further believe that I
would have stressed that there is a very high degree of
responsibility in going into business with an undischarged
bankrupt and that she must be very careful about this. This
advice is so essential that I do not believe I would not
have told Mrs Tucker this. I was aware of Mrs Scott's
background and I was aware that they were going into
business together. One of the reasons for calling the
meeting was that I wanted to make sure Mrs Tucker was fully
aware of her responsibilities and for this reason I believe
that advice would have been given to Mrs Tucker. One of my
concerns was that Mrs Tucker not enter into the agreement
without full knowledge of her responsibilities.
8. Prior to the meeting with Mrs Tucker and Mrs Scott I
suggested that they go to a solicitor to have a partnership
agreement drawn up. I suggested that they attend at the
offices of Mr John Willsmore.
9. From my recollection I believe that Mrs Tucker was aware
of Mrs Scott's undischarged bankruptcy at the time of our
meeting. I further believe that Mrs Tucker was aware of
their joint responsibilities. This belief is based on my
recollection of that meeting.
10. In the second half of 1994 Mrs Scott contacted me and
asked whether I would be prepared to give evidence at her
trial. I said that I would give evidence at her trial. We
did not discuss her case in any detail and I believe that
she asked if her lawyer could contact me. I replied that I
would speak to her lawyer. I do not believe that I gave a
statement to any lawyer in relation to the Glenys Scott
matter in 1994. I was not called to give evidence and I was
not contacted by her lawyer with a view to me attending to
give evidence."
4. Mr Willsmore deposed that the appellant and Mrs Tucker attended at his office on or about 28 July 1988 in relation to the drawing up of a partnership agreement. He further deposed as follows:
"3. On or about the 5th day of August 1988 I sent a copy of
the partnership agreement that I had drawn up for the two of
them to K. O. Tucker, C/- PO Box 1106, Bridgewater.
4. I believe the fact of Glenys Scott's undischarged
bankruptcy was discussed at the meeting. My belief of that
is reinforced by the fact I included in the partnership
agreement a clause relating to bankruptcy. It is not my
usual practice to include a clause in a partnership
agreement relating to bankruptcy.
5. My recollection of that meeting is that Kate Tucker was
aware that Glenys Scott was an undischarged bankrupt.
6. I do not believe that I was ever contacted by any of
Mrs Scott's legal representatives and asked to provide a
statement in relation to the meeting between myself, Kate
Tucker and Glenys Scott.
7. I do not recall ever being asked to attend to give
evidence at the trial of Mrs Scott."
5. Apart from deposing to his practical experience, counsel who appeared for the appellant at the trial deposed to the following, being part of par 5:
"(e) I confirm that Mrs Scott instructed me that Tonkin and
Willsmore could give evidence confirming that Kate Tucker
was aware of Mrs Scott's bankruptcy. I formed the opinion
that as they could not give evidence about the specific
transactions that were the subject of the fourteen charges I
did not believe they would assist in the defence of
Mrs Scott.
(f) I informed Mrs Scott of my opinion and she left the
decision to me as to whether to call them or not. I decided
not to call them because their evidence did not specifically
relate to a particular charge. I did not give consideration
to calling them to contradict the evidence of Kate Tucker.
(g) I did not contact or speak with Stephen Tonkin or John
Willsmore at any time prior to or after my decision not to
call them to give evidence."
6. In my opinion, he clearly should have called Messrs Tonkin and Willsmore. Moreover, I think he should have cross examined Mrs Tucker about what Tonkin and Willsmore say she was told, and about her signature appearing on the partnership agreement immediately below Clause 22 which read:
"22. It is hereby expressly acknowledged and declared by the
parties hereto that the said Glenys Ruth Scott is at the
date hereof an undischarged bankrupt."
7. It is true that Mrs Tucker's evidence was only strictly relevant to the second count, but she had been the appellant's partner, and the jury would be likely to reason that if the appellant did not tell her partner about her bankruptcy before entering the partnership she would be unlikely to tell people from whom, for example, she was buying stock. I think a successful attack on Mrs Tucker's credit would have had a beneficial flow-on effect from the point of view of the defence.
8. I am conscious of the limits that the courts have set, and I think properly set, for allowing appeals when there has been some omission by counsel for the defence at trial. l think it probably correct to say that if the only complaint that the appellant had on appeal was the one I have just been discussing that it would not be possible for the court to say there has been a miscarriage of justice. But there is more here.
9. In his brief summing up, the trial Judge focused briefly on the evidence of Mrs Tucker. He said:
"The only Crown witness whose evidence I shall go into in
any detail is Mrs Tucker. She has known the accused since
about 1987. Their sons were school friends. Her business
was wedding floristry, but the two women thought of putting
their two businesses together in a partnership. They had
the solicitor, Mr Willsmore, draw up an agreement, and
that's Exhibit P44. For your purposes now, the most
significant clause in the agreement is clause 22 which
discloses the accused's bankruptcy.
Mrs Tucker says she read the agreement but didn't notice the
clause at the time. The accused hadn't said anything to her
about bankruptcy. Mrs Tucker didn't understand what
bankruptcy was. The accused told her of it about halfway
through the partnership.
They went to the ANZ Bank to open an account. Mrs Tucker
put in $21,000. She said that the partnership agreement was
not produced to the bank. The accused handled all the
bookwork for the partnership. Mrs Tucker did not
received(sic) any money from the partnership. Early in
1989, she spoke to the accused about separating.
Mr Willsmore drew up another agreement, this time for
dissolution - that is Exhibit P47 - under which Mrs Tucker
was to be repaid the $21,000, but she has received nothing."
10. Counsel for the defence at the trial did not object to Mrs Tucker giving evidence that she put the sum of $21,000 into the partnership or to her giving evidence that under the dissolution of partnership agreement, she was to be repaid $21,000 by the appellant, but had received nothing, but in my opinion that evidence was irrelevant and very prejudicial to the appellant. Moreover, I regard it as most unfortunate that his Honour referred to that evidence again in his summing up. In addition, his Honour's summary of what Mrs Tucker said in evidence about the partnership agreement was inadequate, and in my view the partnership dissolution agreement should not have been tendered. Copies were actually given to the jury.
11. Finally, evidence was led by the Crown with the consent of counsel for the appellant that she had been bankrupt on two other occasions, one earlier on 7 November 1980 and another subsequently on 22 November 1991. That evidence was also irrelevant and prejudicial to the appellant.
12. In my opinion, the cumulative effect of these aspects on the trial has persuaded me that there was a miscarriage of justice. I would set aside the convictions on all counts.
13. In sentencing the appellant, his Honour said:
"You will be imprisoned for two years and six months. You
will be released after 12 months on your entering into a
recognisance in the sum of $5,000 to be of good behaviour
for 18 months from the date of your release ..."
14. The Court of Criminal Appeal was informed that the appellant entered into the recognisance and had already served the custodial sentence of twelve months. In the circumstances, there is much to be said for not ordering a retrial, especially bearing in mind the appellant was aged 49 at the time of the trial, and had no relevant convictions. On the other hand, she may prefer such an order in the hope that she can secure an acquittal. With some hesitation, therefore, I would order a retrial.
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