R v Jenkins

[2000] VSC 535

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1472 of 1999

THE QUEEN

v

BRUCE DAVID JENKINS

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JUDGE:	COLDREY, J
WHERE HELD:	MELBOURNE
DATE OF RULING:	20 OCTOBER 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 535

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CATCHWORDS:      No case submission – Evidence – Secret commissions (s.176(2) Crimes Act 1958) – Application refused..

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APPEARANCES:	Counsel	Solicitors
For the Crown	C. Hillmann and J. Saunders	Office of Public Prosecutions
For the Accused	M. Lincoln and M. Hodgson	Victoria Legal Aid

HIS HONOUR:

1. The secret commission counts are 3 and 15 on the presentment.  The relevant provision of the Crimes Act 1958 is s.176(2). This section sets out the elements to be proved. The Crown must prove (inter alia) that the accused gave or offered a valuable consideration to an agent.

1. It was argued by Mr Lincoln that the evidence established that Bulfin was both an agent for OST and an independent broker.  No doubt this is so; it is part of the evidence of the witness Archer.  Further, at pp. 251 and 281-2, Archer makes it clear that Bulfin could enter into fee arrangements with an OST borrower that did not affect OST.

1. In dealing with Count 3, Mr Lincoln traced the course of the $45,000 which, on Mr Jenkins' instructions, was ultimately sent to the solicitors, Williams, Winter & Higgs.  The cheque was received on 16 May 1988, accompanied by a remittance advice bearing the notation "consultancy fee", Winter & Higgs receipt and it is not Bulfin's notation.

1. The payment was recorded in the books of Toptown Pty Ltd as "borrowing costs".  Ultimately, a cheque dated 18 May 1988 for $44,617 was paid to K.W. Bulfin & Co Pty Ltd.   At about this time, a consultancy agreement between the accused and Keith Bulfin Pty Ltd was drawn up by a solicitor at Williams, Winter & Higgs, a Mr John McArdle.  He gave evidence of receiving instructions from Bulfin to draw up that agreement in April or May of 1988.  The agreement purported to be executed on 11 May 1988.  The cheque, when ultimately sent to K.W. Bulfin & Co, had the solicitors' costs of drawing that agreement deducted from it.

1. It was Mr Lincoln's submission, based on that material, that there was no evidence to indicate that the funds went to Mr Bulfin in any other capacity than his being an independent financier or property broker as distinct from an agent of OST.  Indeed, it was put that there was evidence that the money was being paid pursuant to the terms of the 11 May agreement.

1. The Crown submission was that any establishment fee had already been paid by Toptown to McKinley Wilson, and this was an extra payment made on the accused's signed distribution authority.  Further, it was a payment disguised in the distribution authority as "costs", and as "borrowing costs" in the Toptown books and in the remittance to the solicitors as "consultancy fee". Patently it was none of these things.  Further, the money was not to be paid to McKinley Wilson, but via Williams, Winter & Higgs into the account in the names of K.W. And Elizabeth Bulfin.

1. Insofar as the 11th May agreement was concerned, it was argued that the lump sum payment does not match the yearly payments of $9,000 provided in it, and it preceded the date the mutual payment was required.

1. It was conceded by Mr Hillman that, because he could not prove the absence of assent by the principal, the Crown could not avail itself of s.186(2) of the Crimes Act, which reverses the onus of proof, but he submitted that the evidence was sufficient to enable a jury to infer that the payment was made to Bulfin as agent of OST, and that it was made corruptly (to use the shorthand terminology).

1. Placed in the context of the Glen Crag transaction, including the proximate timing of the payment, and the relationship of the payment to the distribution of the OST funds advanced on the Glen Crag property, as well as the purportedly disguised nature of the payment, there existed a combination of factors which would enable a jury to infer the elements necessary to found this charge.  This is so, albeit that such matters as the 11 May agreement may serve ultimately to weaken that inference.

1. In relation to Count 15, Mr Lincoln argued that there was no evidence that the payment of $1.4m to Topaz Securities was specifically made to Bulfin, albeit there was an admission that he controlled Topaz Securities.

1. Further, it was argued that the evidence of the solicitor, Archer (pp.263 and 264) indicated that he understood that the payments had to do with David Van der Stoep, a Dutch banker.  He said he had been told by Bulfin that Topaz Securities had been involved in setting up proposed overseas loan moneys, and this was a fee for that finance.

1. The solicitor, Green, (p.401 ff) referred to a diary note of 27 July 1989, and agreed that a discussion had occurred with Bulfin in which Staten Bank and Topaz Securities had figured, and a discussion of fees being incurred in relation to overseas funds had occurred.

1. Accordingly, it was submitted that, apart from the same deficiencies of proof from which Count 3 suffered, there was no evidence that the money was to be paid specifically to Mr Bulfin.  Indeed, although there was the admission that Bulfin controlled Topaz Securities there was no evidence that the accused was aware of this fact at the time of the payment.

1. In response, Mr Hillman pointed to the admission that Bulfin controlled the company, Topaz Securities, and the signed authority of the accused that the payment be made to that company.  He submitted that the large payment was unexplained and had to be seen against the background of Bulfin's involvement in the Dreamworld transactions including his involvement with Verebes in altering the value of the goodwill of the Dreamworld Theme Park and in transmitting to OST the revaluation of the Cairns Ferry Terminal.

1. Further, although there was material which suggested an endeavour to obtain overseas finance, it was clear that nothing had come of this.

1. In my view, the knowledge of Mr Jenkins of Bulfin's involvement with Topaz Securities must be seen in the context of the Dreamworld transaction.  There is, for example, evidence of the joint involvement of the accused and Bulfin in seeking overseas loan funds in an enterprise with which Topaz was said to be involved; there is the size of the payment, hardly likely to be made to a company the nature of which the accused was unaware; and there is the signed admission that Bulfin controlled Topaz Securities at the relevant time.

1. In combination, these factors are, in my view, sufficient to enable the jury to draw the inference that, to Jenkins' knowledge the money was paid to Bulfin. 

1. The other factors advanced by Mr Hillman which I have just canvassed in this ruling are matters for the consideration of the jury in determining whether the other elements of the charge can be made out.

1. Accordingly, Counts 3 and 15 should also go to the jury. 

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