R v McCullough

[2000] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCullough [2000] QCA 81

PARTIES:

R
v
McCULLOUGH, Brian William
(appellant)

FILE NO/S:

CA No 149 of 1999
DC No 1255 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2000

JUDGES:

Pincus, Davies and McPherson JJA
Judgment of the Court

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS – PARTICULAR CASES – OTHER OFFENCES – where appellant was found guilty of 16 counts of false pretences charged on the indictment – these counts related to transactions that occurred on and after a certain date – appellant acquitted of seven counts preceding such date – whether there was a rational basis for convictions based on the chronological sequence of counts – whether the verdicts are inconsistent.

Crimes Act 1914 (Cth), s 29A
Criminal Code (Qld), s 427

MacKenzie v The Queen (1996) 190 CLR 348, applied

COUNSEL:

Mr R Toner SC (NSW) for appellant
Mr D L Bullock for respondent

SOLICITORS:

Crichton-Browne Crossley (Sydney) for appellant
Director of Public Prosecutions (Queensland) for respondent

1. THE COURT: The appellant was charged on an indictment dated 12 April 1999 on 23 counts. Twenty of them, pursuant to former s 427 of the Criminal Code, alleged that by falsely pretending to a financier that an agreement had been made between a company controlled by a man called Singh and a company controlled by the appellant under which the appellant's company would deliver an item of machinery to Singh's company, he, with intent to defraud, induced the financier to deliver to his company a sum of money. The other three counts, which were pursuant to s 29A of the Crimes Act 1914 (Cth), alleged that, by falsely pretending to the Commonwealth Development Bank that an agreement had been made between Singh's company and his company under which his company would deliver an item of machinery to Singh's company, the appellant, with intent to defraud, induced the Commonwealth Development Bank to deliver to his company a sum of money. The factual elements necessary to be proved under each of the statutory provisions were relevantly the same.

1. On 23 April he was convicted on 16 of those counts, 15 of them under s 427 and one under s 29A, and acquitted on seven of them, five under s 427 and two under s 29A. One of those acquittals was a directed acquittal. This was on count 35. It is unnecessary to consider that verdict further.

1. The appellant has appealed against his convictions on what is effectively one ground;  that the guilty verdicts are inconsistent with the verdicts of acquittal.  The guilty verdicts were on counts 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 17, 19, 21, 23, 24 and 36.  The acquittals, other than the directed acquittal, were on counts 1, 3, 30, 32, 33 and 34.

1. The numerical sequence of the counts does not match their chronological sequence.  It is necessary hereafter to refer to the verdicts in their chronological sequence because, if there was a rational basis for the difference between the guilty verdicts and the not guilty verdicts, that depended on their chronological sequence.

1. Leaving aside the directed verdict, the jury acquitted the appellant on the first six counts in chronological sequence;  count 32 on 26 January 1989, count 33 on 17 February 1989, count 30 on 3 April 1989, count 34 on 10 April 1989, count 1 on 11 September 1989 and count 3, also on 11 September 1989.  On all counts after that date, commencing with count 4 on 28 September 1989, he was convicted.[1]  They were, in chronological sequence counts 4, 5, 6, 9, 11, 10, 12, 13, 14, 15, 21, 17, 19, 36, 23 and 24.

   [1]Those dates were, in each case, the dates on which payment was made by the financier to the appellant.

1. The sole question before this Court is whether there was a rational basis for the convictions on all counts on and after 28 September 1989 in view of his acquittal on all counts before that date.  Mr Toner SC, who appeared for the appellant, submitted that, at the trial, the case was presented on both sides as one on which the appellant was either guilty on all counts or not guilty on all counts.  That is undoubtedly correct.  The main question in each case was whether the jury was satisfied, to the required standard, of a dishonest intent on the appellant's part and, as Mr Toner frankly conceded, it would have been as unlikely that he, on the appellant's behalf, would have conceded the existence of dishonest intent in some cases as it would have been that the prosecutor would have conceded the possibility of honest intent in any case.  It does not necessarily follow from this, however, that the jury could not rationally have failed to be satisfied of the appellant's dishonesty, to the required standard, in some but not all cases.

1. It was common ground at the trial that, throughout the relevant period, Singh and his companies were in financial difficulties, that Singh was a rogue and that the scheme in which the appellant and his company participated was one designed by Singh to obtain money dishonestly from financiers.  Singh was convicted at the previous Queensland trial and his appeal against conviction was dismissed.[2]  McCullough's case was that he was an innocent dupe in this deception.

   [2]See CA No 108 of 1998, 14 August 1998.

1. The appellant's company was a representative of a number of manufacturers of machinery.  In that capacity it frequently sold machinery to a financier to be leased or hired to an end user.  Singh's companies were engaged in businesses at Toorbul, primarily in the manufacture of bricks.

1. The facts relevant to each count followed a similar pattern.  McCullough's evidence and his case was that he understood that his company would buy an item of machinery from one of Singh's companies and then sell it to the financier for leasing or hiring to the other of Singh's companies.  As he understood it, he said, his company's involvement in this way was necessary to provide an independent seller to satisfy that requirement of the financiers.  The sale from Singh's company to the appellant's company would be made in a telephone conversation between Singh and the appellant and confirmed by an invoice from Singh's company to the appellant's company.  The appellant's company would then invoice the financier.  The appellant did not inspect the machinery but believed it to exist.  At least some of the machinery was of the kind which the appellant did not ordinarily sell.  He was paid about $25,000 over the total period during which the transactions took place.

1. There was evidence from which the jury could have been satisfied to the required standard that McCullough's evidence was untruthful and that he was a party to the defrauding of the financier in each case.  That was not disputed, before this Court, by his counsel Mr Toner.  Nevertheless Mr Toner contended that there was no logical basis for acquittals on the first six counts and convictions on the remainder.

1. Evidence from which the jury were asked to infer the appellant's dishonest involvement in the fraud included, in some cases, evidence that the appellant's diary note of a conversation with Singh which he said evidenced the sale from a Singh company to the appellant's company of a piece of equipment did not state a serial number for the equipment, yet the invoice from the appellant's company to the financier, which followed this conversation and which in some cases preceded the invoice from Singh's company to the appellant's company, did include such serial number.  The jury were asked to infer from this that the appellant made up false serial numbers.  By the time one comes to count 6 on 16 November 1989 this inference is strengthened by a memo from the appellant to Singh stating specifically that he made up the serial number;  and inviting Singh to "adjust" it if he had the correct one, the invitation implicitly recognising that Singh might not be able to do so.

1. In the first two counts, counts 32 and 33, both the diary note of the telephone conversation in which it was said the contract between Singh's company and the appellant's company was made and the invoice from Singh's company to the appellant's company, if they ever existed, were missing.  It is impossible therefore to say whether or not either identified a serial number.  In each case there is an invoice from the appellant's company to the financier in which a serial number is stated.

1. In the third count, count 30, which concerns two items of equipment, there is an invoice from the appellant's company to the financier and, several days later, an invoice from Singh's company to the appellant's company.  The invoices contain identical serial numbers.  But again there is no diary note of the preceding conversation between the appellant and Singh in which, the appellant said, the contract between them was made.  Nor was there any diary note in respect of the fourth count, count 34.  Again the serial numbers in the invoices match but the invoice from Singh's company to the appellant's company is dated four days after the invoice from the appellant's company to the financier.

1. The next in point of time was the count upon which there was a directed verdict.  Then follow counts 1 and 3.  These are the first two counts in which both of the suspicious circumstances, referred to above, were present;  a diary note by the appellant of the conversation in which the contract between Singh's company and the appellant's company was made which fails to mention a serial number, and the issue of the appellant's company's invoice to the financier before the appellant received the invoice from Singh's company.  In respect of both of these counts the appellant agreed that the conversation with Singh, in which the contract between them was made, was on 4 September, his invoice to the financier was on the following day and Singh's invoice to him was sent four or five days later.  These were the last counts, chronologically, on which the jury acquitted the appellant.

1. The following two transactions, which were the first on which the jury convicted the appellant, were the subject of counts 4 and 5.  Again the diary note by the appellant of his conversation with Singh in which the latter asked the appellant to generate the invoices the subject of these counts contained a description of the equipment sufficient to generate an invoice but no serial number in respect of either piece of equipment.  In addition, in this case, the diary note, in respect of one of the pieces of equipment, states "serial no" but no number follows.  Again the appellant's invoice to the financier in each case dated 19 September, contained a number.  However in each case the invoice from Singh's company to the appellant's company is dated 18 September, the day before the appellant's invoice to the financier.

1. The next count in chronological order was count 6 in which, as we have already mentioned, there was a note in the appellant's handwriting from which the jury could have inferred that he said he was making up a serial number and recognized that Singh might not have a correct one.  This note refers to his invoice to the financier in respect of that equipment, which was dated 13 November 1989.  Although the invoice from Singh's company to the appellant's in respect of this equipment, which contained the same serial number, was dated 12 November, it should reasonably have been inferred that the serial number in both invoices was made up by the appellant.

1. In our opinion there was a rational explanation for the jury drawing a line, chronologically, after counts 1 and 3 on 11 September 1989, giving the appellant the benefit of the doubt in respect of those counts up to and including that date but not thereafter.  Although the appellant's explanation of what he thought he was doing was, from the beginning, inherently improbable, the earliest counts charged did not provide as convincing proof of his guilt as had been accumulated by the time of the events the subject of counts 4 and 5.

1. Until counts 1 and 3 on 11 September 1989, though there were many suspicious circumstances such as the appellant's invoice to the financier, in a number of cases, preceding Singh's invoice to the appellant, and the fact that the appellant never inspected the machinery but accepted the telephone assurance of Singh, a man whom he hardly knew, of the existence of the machinery and its sale price, there was, nevertheless, no evidence in a diary note in the appellant's own hand that, in the conversation between himself and Singh in which the relevant contract of sale was made, Singh provided no serial number.  But the jury might have thought that, on the first occasion on which this omission was clearly proved to have occurred, that is, in respect of counts 1 and 3, there was still a possibility, however slight, that it was simply due to forgetfulness on the appellant's part and that, as he himself said, he probably rang Singh later to obtain the relevant serial numbers.

1. But when it occurred on the second occasion, it was not irrational to say that this was the point at which all doubt about guilt was banished.  That occurrence on a second occasion,  when due regard is paid to all of the other suspicious circumstances, could not possibly have been a mistake.  That view was fortified on this occasion by the fact that the appellant plainly adverted to the need for a serial number at the time of this conversation, for his diary note records the words "serial no" but none is stated.  And it was, of course, on the very next count that the appellant, in his diary note, recorded the fact that he made up the serial number and recognized the possibility that there might not be a real one, that is, that the machinery might not even exist.

1. If there were any lack of rationality in the jury's drawing the line, chronologically, after counts 1 and 3 on 11 September 1989 it would be because, in doing so, they were unduly generous to the appellant.  The evidence against him, in respect of the counts prior to that date, was very strong indeed.  But the fact that the jury drew a line at a point which many might think was unduly generous to the appellant is not a reason for setting aside all verdicts on the ground of inconsistency.  Even if it were thought that the jury were unduly generous to the appellant in their verdicts on counts 1 and 3 that would not make the guilty verdicts which followed irrational.[3]  There is, in any event in our opinion, a sufficient justification from the chronology of events, the place of counts 4 and 5 in that chronology and the addition in the diary note relating to those counts of a notation which excluded the possibility that serial numbers had been omitted simply through forgetfulness of the appellant, for the jury to have rationally drawn the line chronologically at the point where they did.

   [3]See MacKenzie v The Queen (1996) 190 CLR 348 at 367.

1. For those reasons the appeal should be dismissed.