R v McLean
[2000] VSCA 217
•16 November 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 260 of 1999
| THE QUEEN |
| v. |
| WALTER RITCHIE McLEAN |
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JUDGES: | PHILLIPS, C.J., TADGELL and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 August 2000 | |
DATE OF JUDGMENT: | 16 November 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 217 | |
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CRIMINAL LAW – Obtaining property by deception (six counts) – Receiving secret commission (16 counts) – Joinder of all 22 counts in one presentment – Whether counts founded on the same facts – Whether counts part of a series of offences of the same or a similar character – Onus of proof – Whether secret commission counts on which onus might shift to accused were properly joined with counts on which onus lay on Crown throughout – Direction to jury in such a case.
Crimes Act 1958, ss.81(1), 176(1), 177, 186(2), 371 and Sixth Schedule (Presentment Rules).
CRIMINAL LAW – Sentence – White collar crime – Parity – Whether specific deterrence irrelevant – Six years’ imprisonment with four-year minimum upheld.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Hicks and | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Ms L. Lieder Q.C. | Libman Davis & Associates |
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Tadgell, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.
TADGELL, J.A.:
The applicant, Walter Richie McLean, was initially arraigned in the County Court, together with Bernard Henry Phayre and Harry Penfold, on a presentment alleging 38 counts of offences of dishonesty to have been committed over a period against Mobil Oil Australia Ltd. as the sole and regular victim. There were 22 counts alleged against the applicant – 16 (against him alone) of receiving a secret commission[1] from Phayre and six of obtaining property by deception[2] – two against him together with Phayre, three against him together with Penfold and one against him alone. Against Phayre there were 18 counts – 16 (against him alone) of giving a secret commission[3] to the applicant and two (against him together with the applicant) of obtaining property by deception; and there were four counts against Penfold – three (together with the applicant) of obtaining property by deception and one against him alone that is of no present relevance. All accused, each being separately represented, pleaded not guilty to all counts.
[1]Contrary to s. 176(1) of the Crimes Act 1958.
[2]Contrary to s. 81(1) of the Crimes Act 1958.
[3]Contrary to s. 176(2) of the Crimes Act 1958.
Because the three counts on which the applicant and Penfold were presented together did not concern Phayre, his counsel (supported by counsel for the other two accused) successfully sought an order that those counts be severed from the rest. The order for severance having been made, the Crown sought a ruling that certain evidence of the applicant’s conduct giving rise to some of the counts against him was explanatory of his conduct in relation to other counts against him, and that it should be admissible conformably with principles discussed in such authorities as Harriman
v. The Queen.[4] After obtaining the ruling sought the Crown elected to proceed against each of the accused separately, beginning with the trial of the applicant.
[4](1989) 167 C.L.R. 590.
So it was that on 10 May 1999 the applicant was arraigned for a second time on a fresh presentment, against him alone, containing 22 counts – the 16 counts of receiving secret commissions and the six of obtaining property by deception with which he had been charged in the original presentment. Again he pleaded not guilty to all counts, and on 25 May 1999 he was convicted on them all. Phayre was later tried separately before the same judge and, having pleaded not guilty to all 18 counts against him, was convicted on all save one of the two of obtaining property by deception. Later again, Penfold pleaded guilty before the same judge to all four counts against him, including the three counts of obtaining property by deception with which he had originally been charged together with the applicant. On 11 October 1999 his Honour sentenced all three men to imprisonment. The applicant now seeks leave to appeal against conviction and sentence.
Conviction
The applicant, to whom it will now be convenient often to refer in the narrative simply by surname, along with several of the others concerned, was born in 1941 in Scotland and came to this country in 1969. He commenced employment with Mobil Oil Australia Ltd. in that year and was continuously so employed until 31 May 1993. From 1990 he was a product manager at Mobil’s head office in Melbourne, and from 1991 the National Products Manager, with responsibility for the marketing of lubricants. Squires Trading Company Pty. Ltd. (sometimes – for example on its cheques – spelt “Squire’s”, and which I shall usually call “Squires”) had commenced operation early in 1989 in Brisbane and had from its inception supplied Mobil with promotional merchandise. Its directors at most relevant times were Phayre and W.H. Bishop. Phayre, a former employee of Mobil, joined the company in Melbourne at about the same time as McLean. He was at material times a very close and long-standing friend of McLean’s – “probably one of my best friends in Australia”, as McLean told police. Squires became a “preferred supplier” to Mobil (but not of lubricants) and in February 1991 acquired the right, by virtue of a written trading agreement, to use Mobil trademarks and the like on promotional material that it supplied. From time to time McLean, through his section, placed orders for Mobil with Squires for promotional material such as key rings and pens bearing Mobil insignia. For these items the approval of the Mobil purchasing department was not required because what was known as a blanket order had been given to cover them, to be drawn upon from time to time by means of a blanket order release.
Counts 1 to 14 alleged that, on 14 occasions from August 1990 until June 1991, McLean corruptly received secret commissions, consisting of money, from Phayre, through Squires. In each case it was alleged that the receipt or expectation of the consideration would tend to influence McLean to show favour to Squires in relation to the affairs or business of Mobil; and in most cases it was further alleged that the consideration was received as an inducement or reward for, or otherwise on account of, doing an act in relation to the allocation of work from Mobil to Squires in relation to the supply of goods to Mobil. There were two other allegations of receipt by McLean in March 1992 of secret commissions (counts 16 and 17) of which I shall say more below.
In his position at Mobil McLean was responsible for his own budget, with a nominated limit, and one of his functions was to devise and implement national marketing promotions for his employer. One such promotion, developed by him and others in his department in about mid-1990, was the sale of oil in promotional packaging – distinctive gold-coloured metal jerry cans of 10 litres and 20 litres capacity – instead of conventional plastic containers. The only available supplier in Australia of suitable jerry cans was a company in Notting Hill called Prestronics (Aust.) Pty. Ltd., trading as Pro-Quip, which imported them on indent from eastern Europe. In a period of about 12 months from early in 1992 to early in 1993 Mobil paid for the supply of three shipments of jerry cans, arranged by McLean in three so-called transactions. These were referred to at the trial as T1, T2 and T3, and I shall follow suit. The Crown alleged that McLean arranged, in the case of T1 and T2, that an intermediary be interposed, unnecessarily, between Mobil and Pro-Quip for the purpose only of inflating the price, and that T3 was a similar arrangement but a sham, thereby in each case defrauding Mobil and giving rise to the six counts against him of obtaining property by deception. These were counts 15 and 18 (relating to T1), counts 19 and 21 (relating to T2) and counts 20 and 22 (relating to T3). I shall describe as briefly as may be the circumstances in which the three transactions came about, according to the Crown case.
T1 had its genesis in about mid-June 1990 when representatives of Pro-Quip, including one C.M. Haines, a director, negotiated directly with representatives of Mobil, including McLean, on a price for the supply of jerry cans; and on 19 June 1990 Pro-Quip gave Mobil a written quotation (of which McLean was aware) for the supply direct to Mobil of 20,000 of them, specifically described, each of 20 litres capacity. The unit price quoted was $13.32 (including sales tax), “f.i.s. August 1990 Mobil warehouse Yarraville”. Payment was to be made at sight against letter of credit or by agreed alternative. After some months’ delay, details of which are not now important, Squires (not Mobil) placed an order on Pro-Quip for 30,000 jerry cans of 20 litres capacity “to be supplied as per specifications your letter [scil. to Mobil ] 19-6-90” at $13.32 each, to be delivered to “Mobil Warehouse Yarraville” in July and August 1991. There was no reason why Mobil could not have ordered the goods directly from Pro-Quip, to whom Squires was at that time quite unknown. The order from Squires contained no reference to terms of payment and Pro-Quip, unable to proceed with the order without some security, sought it from McLean, who authorised a letter dated 2 May 1991 to be signed over his name to say to Haines that it was “confirmation that Mobil Oil (Australia) Ltd require an order of 30,000 units of 20 litre Jerry Cans at a cost of $11.10 plus 20% sales tax [i.e. amounting to $13.32] per unit.” Pro-Quip continued to press for an official order and, on 27 June 1991, McLean himself signed a letter to Haines saying “We herewith confirm that we have placed an irrevocable order for 30,000 Jerry Cans with our Mobil Merchandise Distributors, Squires Trading Company, who we understand have placed an order (No 044) with you, for delivery July/August our warehouse in Yarraville.” Unsurprisingly, those informal, irregular communications were unacceptable as security and on 7 August 1991 Pro-Quip pressed urgently by fax for an official order so that a letter of credit might be raised. McLean thereupon (through a subordinate) issued an order upon Squires,[5] using a blanket order release notice, for 30,000 20-litre jerry cans at a unit price of $16.50. The notice was irregular because the blanket order under which the notice was purportedly given, although in favour of Squires, did not cover jerry cans. Moreover the value of the order exceeded what was permissible under the blanket order procedure. Nevertheless, Squires then issued to Pro-Quip a replacement order, for delivery in October, but still there was no satisfactory security for payment. Ultimately, on a pretext, Squires peremptorily cancelled the order but reinstated it on 11 October (as a result of McLean’s intervention), as to 20,000 units, for delivery by 30 December. At length 19,096 units were delivered by Pro-Quip late in 1991 and early in 1992 pursuant to that order. Squires paid Pro-Quip for them at the agreed unit rate of $13.32 f.i.s. and no more – $254,358.72 in total. In the meantime Squires, on 14 October 1991, had invoiced Mobil for 20,000 jerry cans at the unit rate of $16.50 – $330,000. Despite the discrepancy between the number of units invoiced by Squires and the number delivered, payment in full of the invoice from Squires was authorised by Mobil’s Marketing Director in reliance on McLean’s written recommendation. Mobil’s cheque for $330,000 in favour of Squires was personally collected by McLean from the appropriate paying officer on 31 January 1992 and paid. Squires also submitted five invoices to Mobil in January 1992 for what was described as “deconsolidation, receiving, temporary storage and transport” in respect of some of the jerry cans that had been supplied by Pro-Quip. Each of those invoices was individually approved for payment by McLean and a cheque for $43,448.92 to cover them was drawn by Mobil in favour of Squires on 12 May 1992 and paid. The Crown alleged that Squires had had no right to charge that sum, that in any event the services for which the charge was made were not performed, that the invoices were paid only because McLean authorised payment and that he did so knowing of their falsity. The two cheques drawn by Mobil, referable to T1, were the subjects of counts 15 ($330,000) and 18 ($43,448.92) of obtaining property by deception. The cheques, aggregating $373,448.92, exceeded by $119,090.20 what was paid by Squires to Pro-Quip for the supply of jerry cans comprised in T1, for which excess Mobil received no benefit.
[5]In April 1991, with effect from May 1991, the business operated by Squires was sold to Myallbah Pty. Ltd. (controlled by one P.B. Markovitch), which thenceforth operated the Squires business under its business name; and the trading entity conducted by Phayre and Bishop was reconstituted as Tribold Pty. Ltd. Markovitch knew of T1 and had agreed to pay Phayre (or Tribold) a commission in respect of it but, after delays, the agreement was changed so that Phayre retained carriage of the matter, agreeing to pay a commission to Myallbah. After the sale of the Squires business some of the documents concerning T1 referred to Myallbah Pty. Ltd. (trading as Squires) and some to Tribold Pty. Ltd. but, for the sake of simplicity of narrative, I treat them as if they referred – as for all practical purposes they did – to Squires (meaning the entity controlled by Phayre and, until he resigned from it in about November 1991, Bishop).
Counts 16 and 17, alleging receipt by McLean of secret commissions, were associated, at least in point of time, with T1. On 12 March 1992 two cheques, each for $15,000, were drawn by Tribold Pty. Ltd.[6] and signed by Phayre in favour of McLean, who deposited one in an account operated by him and cashed the other at the Mobil Centre sub-branch of the Commonwealth Bank.
[6]As to which see footnote 5.
T2 concerned a quantity of 10 litre jerry cans in respect of which Pro-Quip, having learned of Mobil’s interest in a further shipment, had tendered a quotation to Mobil on 11 May 1992 for their supply at a unit price of $10 or $10.15, depending on colour. As I have noted[7] the business of Squires was sold before T1 was completed, and McLean had assured the new management of Squires that the existing “promotional deal” would continue for the foreseeable future. McLean nevertheless arranged that an order for 10 litre cans be placed initially not with Squires (under its new ownership) but with a company named Tanbros Nominees Pty. Ltd. Tanbros was a defunct nominee company having no connection with importing or the automotive industry. Its proprietor was one Boon Tan, a travel agent known to Penfold. The latter was senior purchasing officer at head office, until he left Mobil’s employment in mid-May 1992, and had arranged with Boon Tan to use Tanbros in the transaction in return for payment of a commission. About two months before Penfold left Mobil there was a meeting between McLean, Penfold, Haines and others at which McLean told Haines that Penfold would be acting as a consultant in respect of T2 and should be contacted for payments. Pro-Quip’s quotation of 11 May, prepared in ignorance of Penfold’s impending departure, was therefore marked for his attention. After receiving Pro-Quip’s quotation of 11 May Mobil received a forged document on the letterhead of Tanbros, bearing the same date, purporting to be a quotation for the supply by Tanbros of 50,000 10-litre jerry cans at a unit price of $14.40. Mobil’s order, to a value of $720,000, was given on 14 May to Tanbros upon that quotation. The order was amended on 4 November 1992 by reduction of the quantity to 35,000 units. Meanwhile, on 2 June 1992 Haines sent a further quotation to McLean for the supply of 50,000 jerry cans at a unit price of $9.85, excluding sales tax. On 6 July 1992 McLean prepared in his own handwriting, on a printed Mobil Requisition Purchase Order form, a request to Pro-Quip for supply of the 50,000 jerry cans for T2 specifying a unit price, including sales tax at 20%, of $11.82. The form McLean used was not appropriate and, since an order number for the transaction had already been committed to the order given to Tanbros, McLean later provided one by telephone to Haines, who wrote it on the document himself. The order to Pro-Quip was evidently also amended by reduction to 35,000 units.
[7]Footnote 5.
A document dated 18 May 1992, purporting to be an invoice on the letterhead of Tanbros and seeking payment from Mobil of $180,000, being 25% of the value of the order originally given to Tanbros, was paid in full by Mobil by cheque dated 20 July 1992 in favour of Tanbros which McLean collected personally. Penfold took the cheque to Tan and asked him to endorse it to Harpen Investments Pty. Ltd., a company under Penfold’s aegis, and Tan did so. By cheque dated 11 November 1992 for $324,000 in favour of Tanbros Mobil paid the balance of the price of T2. That cheque, too, was collected personally by McLean and was deposited in an account in the name of Harpen Investments Pty. Ltd.
Pro-Quip, having supplied the 35,000 jerry cans the subject of T2, sought payment from Mobil but was told by McLean that Mobil had purchased through Tanbros, “…which was the company which purchased through you”. Only after considerable delay did Pro-Quip receive full payment for T2 from, as it would appear, Harpen and Tanbros. The difference between the sum of the amounts paid by Mobil to Tanbros ($504,000) and the amount paid to Pro-Quip ($413,700) was $91,300 for which, again, Mobil received no benefit. The two cheques drawn by Mobil, and referable to T2, were the subjects of counts 19 ($180,000) and 21 ($324,000) against McLean of obtaining property by deception; and Penfold was similarly charged.
T3 concerned 20-litre jerry cans, about the prospect of a further shipment of which Mobil had expressed interest to Pro-Quip which, in turn, confirmed on 26 August 1992 (by facsimile message to McLean) its capacity to supply them at a unit price of $14.40, including sales tax. On 27 August 1992 Mobil placed an order with Tanbros for 20,000 units at a unit price of $16.20, amounting to $324,000. On the following day McLean caused an entry to be made in the Mobil SAP (i.e. Systems Application and Products) system recording the receipt of 20,000 cans in respect of T3. No order for the cans had been placed with Pro-Quip (the only possible Australian supplier) and no delivery of any of them had then been or was ever thereafter made to Mobil by Pro-Quip or at all. On 31August 1992 Mobil paid $81,000 by cheque to Tanbros, upon what purported to be its invoice, as part of the price of the goods the subject of the order of 27 August. At Penfold’s request the cheque was endorsed by Tan’s wife to pay Decorator’s Delight, a business operated by Penfold’s wife, and on 8 September it was deposited to the credit of a bank account in that name. A document dated 26 February 1993 purporting to be an invoice on the letterhead of Tanbros sought payment from Mobil of $121,500, being 50% of the value of T3 after allowing for the sum of $81,000 already paid. McLean approved payment of the claim on 26 February and on the same day he collected a Mobil cheque for $121,500 in favour of Tanbros. Haines was at that time seeking payment of the balance in respect of T2 owed to Pro-Quip, in whose favour Tan eventually endorsed the cheque. The two cheques drawn by Mobil, and referable to T3 (for which it received no consideration) were the subjects of counts 20 ($81,000) and 22 ($121,500) of obtaining property by deception. Penfold was charged with that offence in relation only to the cheque for $81,000.
Counts 1 to 9 and 11 to 14, alleging the receipt by McLean of secret commissions, concerned a series of 13 cheques dated from 31 August 1990 to 31 June (sic) 1991 drawn on an account in the name of “Squire’s Trading Company Pty. Ltd.” and signed by Phayre.[8] There were nine cheques payable to McLean’s wife in sums ranging from $1,558.65 (in the case of five of them) to $3,904.07; and there were four cheques for $2,000 payable to McLean himself. The first cheque was deposited into an account operated in the names of McLean and his wife and all the others were endorsed by McLean and paid in cash (to him, as he admitted in a police interview) at the Mobil Centre sub-branch of the Commonwealth Bank. Count 10, also alleging the receipt by McLean of a secret commission, concerned a direct debit to the Squires account in the sum of $4077 in favour of an account in McLean’s name. The total value of the 14 payments over the 10-month period was $30,258.52.
[8]Cheques, signed by Phayre, were evidently drawn on an account in the name of “Squire’s Trading Company Pty. Ltd.” at a Brisbane branch of the ANZ Bank even after the sale of the business of Squires in April 1991.
The Crown contended that, whereas the payments the subjects of counts 1 to 14 were received in relation to unspecified dealings between Mobil and Squires generally, the two payments each of $15,000 the subjects of counts 16 and 17 to which I have referred in paragraph [9] in the context of T1 were by way of inducement or reward specifically in relation to that transaction. The defence case was that McLean’s wife (who unexpectedly died in September 1992) had at relevant times been employed by Squires, the cheques in her favour having been drawn by way of salary; and that the other payments were of sundry amounts legitimately made to McLean.
The grounds of the application for leave to appeal against conviction are these (omitting unnecessary elaboration) –
1The trial judge erred in failing to sever the counts that related to the “Squires” transactions from the counts relating to the “Tanbros Nominees Pty. Ltd.” transactions, that is to say, on the presentment as it related to the trial of the applicant, in failing to sever counts 1 to 18 from counts 19 to 22.
1A The trial judge erred in failing to sever counts 1 to 14 and 16 and 17 from the other counts. [This was added by leave of this Court during the hearing of the application.]
2The trial judge erred in ruling that it was proper to join the said counts [scil. those referred to in ground 1] on the basis that the evidence admissible in respect of the latter counts was similarly admissible in respect of the former.
3The trial judge erred at the outset of his charge when, in charging the jury as to the elements of the offences alleged in counts 19, 20, 21 and 22, he failed to distinguish between the conduct which could constitute such offences in relation to Bernard Phayre and that alleged in relation to the accused Penfold.
4The trial judge erred in charging the jury that they could use the evidence in relation to the Tanbros Nominees charges as evidence against the applicant in respect of the Squires charges by reason of the common feature between the transactions.
5The trial judge further erred in charging the jury that, once satisfied of the guilt of the applicant on the later counts, they could use that to rebut the applicant’s contention in relation to the former counts which imposed an evidentiary burden on the applicant.
6The applicant suffered a fundamental miscarriage of justice in that, given the nature of the charges, and the distinction as to the burden of proof, the matters were nonetheless joined on the one presentment.
7The verdict of the jury in respect of the “Squires” charges was against the evidence and the weight of the evidence. [This ground was abandoned]
Grounds 1, 1A, 2 and 6, relying on the form of the presentment, complain in essence (as the argument upon them was developed) that there should have been severance such as would have required separate trials – one upon the counts founded solely on T1, one upon those founded solely on T2 and T3 and one upon the 16 counts alleging the receipt of secret commissions. As will be evident from the foregoing summary, McLean’s counsel at the trial (who did not appear in this Court) made no application for severance of a kind which his counsel now contends should have been ordered. It was counsel for Phayre who sought a limited order for severance in order to rid his client of the necessity to be tried with Penfold; and this course counsel for McLean supported. At that stage there had been no ruling sought by the Crown (or given) as to admissibility of evidence; and what was being sought by counsel for both McLean and Phayre was a single trial of both of them as co-accused, without Penfold.
The Crown’s application for a ruling on the admissibility of evidence was made immediately after severance of the counts against Penfold had been ordered. The Crown’s submission then was that the evidence admissible against McLean in relation to T2 and T3 should be admissible against him also in relation to T1. Counsel for the Crown made no secret of his intention, if his submission succeeded, of seeking a separate trial against McLean alone on all 22 counts that were relevant to him. The Crown’s argument pointed to a basis on which McLean’s defence was expected to stand, namely that his conduct with respect to T1, and in particular the interposition of the intermediary, Squires, was honest and legitimate. The Crown’s argument was that McLean’s conduct relating to T2 and T3 (which, as it was alleged, was quite plainly fraudulent) explains his conduct concerning T1, tending to show that, far from being honest and legitimate, T1 was another and earlier instance of a method used by him and others for defrauding Mobil. Counsel for McLean contended that no principle of similar fact evidence should allow the evidence concerning T2 and T3 to be used as the Crown proposed for it showed, at most and impermissibly, mere propensity on the part of his client. Counsel pointed, in any event, to what he said were significant dissimilarities between T1 and the other two transactions. Counsel submitted alternatively that, should the judge rule the evidence to be technically admissible, he should exclude it as a matter of discretion in the interest of a fair trial. Following acceptance of the Crown’s submission the prosecutor applied to file over another presentment, as against McLean alone, containing the 22 counts. Counsel for McLean, on the judge’s enquiring of his attitude to the application, replied that he had nothing to say. In particular, no suggestion was made by counsel on McLean’s behalf that the trial should not be on all 22 counts that were relevant to him.
It seems to have been common ground in this Court that the two counts specifically concerning T2 (counts 19 and 21) and the two specifically concerning T3 (counts 20 and 22) were properly joined. The present concern is whether those four counts were properly joined with the two counts specifically concerning T1 (counts 15 and 18) and whether the 16 remaining counts (alleging the receipt of secret commissions) were properly joined with the other six. There are two aspects to the questions raised: whether it was technically permissible to join the 22 counts in the one presentment and whether, even if joinder was permissible, there should have been some discretionary severance – and if so what – in the interest of a fair trial.
The question of the technical permissibility of the joinder was, as will have become apparent, not a subject of debate at the trial. In this Court the Crown relied, naturally, on paragraph 2 of the Presentment Rules[9], which allows joinder in the same presentment of charges that “are founded on the same facts or form or are part of a series of offences of the same or a similar character”. In justification of the joinder that was made the Crown referred to what was alleged to have been a calculated system, deliberately pursued by McLean, for the purpose and with the intention on his part of defrauding Mobil. Essentially, as the Crown put it, although each of the transactions was rather tangled, the system adopted was quite simple: McLean, a long-standing and relatively senior employee of Mobil who was in a position to do so, arranged for the supply of jerry cans by Pro-Quip to his employer, not directly but, in order only to raise the cost, through an unnecessary intermediary. The Crown’s contention was that all of T1, T2 and T3 were of this character, that the secret commission counts were all of the same character as each other and that all of the 22 counts had a common factual origin or factual nexus[10].
[9]Crimes Act 1958, s. 371 and Sixth Schedule.
[10]Having regard, it is to be assumed, to the facts as the Crown proposed to present them: Sutton v. The Queen (1994) 152 C.L.R.528, at 541, per Brennan, J; R. v. Renzella (unreported, Victorian Court of Appeal, 7 August 1997) at p. 10. Although this Court in R. v. Reid [1999] 2 V.R. 605, at 621, para.164, spoke of having regard, broadly, to the evidence to be led “by the parties”, it in fact referred only to the prosecution case.
More particularly, the Crown relied on the following facts as tending to prove premeditation, a system and a dishonest intent: the three transactions for the supply of jerry cans by Pro-Quip for use by Mobil occurred within a relatively short period in 1991-92, all transactions were for the supply of jerry cans only and they were the only transactions in which both those parties were interested. Although both were interested they were not brought into a contractual relationship, and this notwithstanding that Pro-Quip was the only possible Australian supplier, and that there was no reason why it could not have supplied Mobil direct as, by giving quotations, it had in effect offered to do; and McLean, having the opportunity, was the moving force in each case for the insertion, at Mobil’s expense, of an unnecessary and unjustified intermediary. Each of the secret commission counts alleged that McLean obtained a personal benefit from the first inserted intermediary, Squires, and that again the victim was Mobil; and two of the benefits (those the subjects of counts 16 and 17) were said to have related directly to T1.
Counsel for the applicant in this Court had inevitably to recognize not only that the trial judge received no submission to the effect that the Presentment Rules did not permit the joinder that is now complained of, and was therefore not asked to rule on the point, but also that defence counsel, having been invited to speak to the form of the fresh presentment that the Crown had sought to file over, offered no objection. Hence, a submission that the trial judge erred in failing to sever the counts, as both grounds 1 and 1A in terms contend, was not seriously open. Rather, staunchly grasping the nettle, counsel contended here that paragraph 2 of the Presentment Rules had been in no respect satisfied in order to allow the joinder of counts so far as it is now disputed. Although ground 2[11] might have accommodated a point to the effect that the learned judge’s ruling as to the admissibility of evidence was technically wrong, I did not understand that a separate argument of that kind was addressed to this Court. It would seem to follow however that, if counts 15 and 18 were severed, there would be no practical scope for the judge’s evidentiary ruling. The primary submission to us therefore was that, the joinder having been in contravention of the Rules, there had been ineluctably a miscarriage which this Court is bound to acknowledge and rectify, even if it flowed from an error or omission on the part of defence counsel.
[11]In fact the judge did not make the ruling that this ground attributes to him, not having been called on to rule on the propriety of the joinder.
The submission for the applicant repudiated absolutely the notion that there was any system to be discerned in his relevant conduct, and also that the joined counts were for offences that in any relevant sense were founded on the same facts or formed or were part a series of offences of the same or a similar character. It was suggested, for example, that the only essential point of similarity between the counts of obtaining property by deception was that they related to jerry cans, which was no more relevantly significant than to say, for example, that all the objects of a series of art frauds were pictures. While it was conceded that, in all cases, the applicant was an employee of Mobil, that was said to be no more than an inessential or co-incidental feature. These asseverations appear to me to ignore without justification the several matters relied on by the Crown that I have summarized in paragraph [21]. Sequential operations need not necessarily be executed identically before one may fairly infer that they were done according to a system; and they may have a common foundation of fact – a common factual basis – or be or form part of a series, in the relevant sense, without necessarily exhibiting many obviously common characteristics, provided that they have, for example, a common genesis or, on some other basis, may fairly be treated for the purposes of the trial as linked or associated, rather than separate or discrete. I do not purport to be exhaustive, and it would be idle to try. No formula or precept can set out with unerring particularity a means of determining what will, and what will not, satisfy the requirements of the Presentment Rules for permissible joinder of counts. As Winneke, P. observed in R. v. Renzella,[12] the Rules were designed to have a flexible and not a not rigid operation. It could not be otherwise: the Rules were, after all, intended to apply across the board, sensibly and serviceably and with practical adaptability. They were manifestly designed to be interpreted and applied primarily on the spot and in the field, not by a court of appeal. In this case, as it happens, the Rules were interpreted and applied, not by the trial judge, but without evident reservation by counsel on either side. I should not be prepared, at this distance, to say that both counsel were wrong. In my opinion the Rules are readily capable of accommodating a conclusion at least that the four counts specifically referable to T2 and T3 might be joined with the two counts specifically referable to T1, irrespective of the answer to the evidentiary problem that the judge was asked to decide, on the footing that they were or formed part of a series of offences of the same or a similar character.
[12]Court of Appeal, unreported, 7 August, 1997, at pp. 10-11, where relevant authorities are cited sufficiently for my purpose to render reference to others supererogatory.
The question of the technical validity of joinder of the secret commission counts with other counts is less straightforward. There are two issues: whether the secret commission counts, or any of them, were properly joined, first, with the two counts specifically referable to T1 and, secondly, with the four counts specifically referable to T2 and T3. Obviously, all the allegations of receiving secret commissions are in one sense linked with T1, as the Crown alleges it occurred, inasmuch as Squires was common and central to all. Moreover, the sums of $15,000 that were the subjects of counts 16 and 17 were allegedly obtained directly on account of T1. On the other hand T2 and T3, as the Crown alleged them, had nothing to do with Squires, the alleged offeror of the secret commissions; and indeed all the payments alleged as secret commissions had been received before T2 and T3 were completed.
It cannot be said that proof of the secret commission counts depended on proof of facts that would prove any of the other counts, or that the legal character of the secret commission counts was the same as or similar to that of any of the other counts. Neither of those considerations, however, would of itself stand in the way of joinder. The cardinal criterion for the joinder of counts under our Presentment Rules, and cognate legislation, has long been accepted to be a link or other nexus that is sufficient to give effect to the underlying policy that the Rules were designed to implement. Nexus, as it is understood in this context, is or includes “a feature of similarity which in all the circumstances of the case enables the offences to be described as a series”.[13] The policy[14] was to enable the joinder of charges which may be “properly and conveniently” dealt with together.[15] The policy was the subject of helpful comment in R. v. Collins, ex p. Attorney-General,[16] in which the Queensland Court of Appeal considered the validity of an indictment charging three counts: first, arson of a building; secondly, breaking, entering and stealing in relation to the same building; and thirdly (alternatively to the second count), receiving property from the building. The trial judge decided, apparently of his own motion, that the joinder of the arson count with the alternative receiving count was not permitted by the Queensland equivalent of our Presentment Rules,[17] and held that the indictment was therefore bad. The Crown successfully challenged the ruling upon a reference under statute by the Attorney-General to the Court of Appeal.McPherson, J.A. and Lee, J. observed[18] that –
“It is obviously desirable both in the interests of the due and expedient administration of criminal justice and in the interests of finality of litigation in relation to the particular accused, that there be a single and final enquiry into matters which arise out of or which essentially involve common issues of fact or law. Any injustice which such a course has the potential to produce is adequately catered for by the discretion to sever…If nothing else, consistency in decision making would dictate that the one tribunal resolve such questions, little being gained from a fragmented approach. The simple means which the legislature has provided for giving effect to this policy is to allow the joinder of multiple counts in the one indictment in an appropriate case ‘so that the whole of the facts can be adjudicated on by one jury’: R. v. Bellman[19]. Indeed so extensively has this policy been recognised, that the courts have laid down the general rule that matters that can be joined without prejudice to the accused ought generally to be…
For offences to be ‘founded on the same facts’ they must have a ‘common factual origin’… But that is a phrase which is not to be narrowly construed. In particular, it is not necessary for the offences to have arisen contemporaneously or to involve precisely the same facts. All that is necessary is for them to be traceable, either in time, place or circumstance, to common events…”
McPherson, J.A. and Lee, J. found[20] the requisite nexus in that case in the circumstance that all the charges had their genesis in sequential actions of the accused on the same day: in that sense they were “founded on the same facts”. Their Honours concluded also that the three offences charged were part of a linked series and appear to have treated that, too, as justifying their joinder.
[13]Ludlow v. Metropolitan Police Commissioner [1971] A. C. 29, at 39, per Lord Pearson.
[14]As explained in such authorities as R. v. Kray [1970] 1 Q.B. 125, at 130-1, per Widgery, L.J. ; Ludlow v. Metropolitan Police Commissioner [1971] A.C. 29, at 39-40.
[15]R. v. Kray, loc.cit.
[16][1996] Qd. R. 631, at 637, for a reference to which I am obliged to Batt, J.A.
[17]Criminal Code, s. 567(2) which, so far as now relevant, is identical to paragraph 2 of our Rules.
[18]At 637.
[19][1989] A.C. 836, at 850.
[20]Ibid.
Fitzgerald, P. in a separate judgment[21] held the joinder of the first and second charges, and of the second and third, to have been valid beyond argument. His Honour continued –
[21]At 633-4.
“If there was a defect in the indictment, it must have arisen from the joinder of the first and third charges. If the joinder of these charges was permissible, that joinder must be authorised by s.567(2)[22] and justifiable even if the second charge had not been included in the indictment.
[22]Equivalent to paragraph 2 of our Presentment Rules.
In order to determine whether the first and third charges were ‘founded on the same facts’, it is helpful to identify the ‘facts’ on which each of these charges was ‘founded’, and which, if any, were the foundation of both charges.”
His Honour identified one fact as essential to proof of the first charge but not of the third (scil. that the building was set on fire and how that was done) and classified the remainder of the salient facts (enumerating them) as being material to both charges, concluding that he could not discern –
“…any basis upon which it could be contended that the first and third charges were not ‘founded on the same facts’. The authorities give no support to a proposition that such a conclusion results from the circumstance that an additional fact had to be proved to establish the first charge.”
His Honour’s reasoning would appear to support the following proposition: where three charges (call them x, y and z) are joined, and joinder of x and y and of y and z is clearly valid, the joinder of x and z an be justified only if those two could stand had y not been included. A conclusion that x and z are, in the relevant sense, founded on the same facts is not precluded, however, merely because facts material to x are not material to z, provided that there are other facts fairly material to both x and z. Before determining that there is no appropriate nexus between x and z, regard is to be had not only to features that differentiate or distinguish them one from another but to features that they share in common.
By parity of reasoning, the joinder in the present case of the secret commission counts and the counts specifically referable to T2 and T3 was authorised on the footing that they were “founded on the same facts” only if that were so had the counts specifically referable to T1 not been included. There are, it is true, important facts relevant to the counts referable to T2 and T3 that are not at all relevant to the secret commission counts. There are, however, facts material to the counts specifically referable to T2 and T3, as well as to the secret commission counts, which support a conclusion that all of them are, in the relevant sense, founded on the same facts. Moreover, in my opinion, the facts on which the Crown relies support a conclusion that these counts are properly to be regarded as part of a series of offences within the meaning of the Rules.
Notable among the facts that touch the counts specifically referable to T2 and T3 and also the secret commission counts are the following
(i)McLean was at all relevant times – from August 1990 to February 1993 – a relatively senior and long-standing employee of Mobil;
(ii)McLean held a national position in charge of a department whose business it was to devise and implement promotional schemes and to place orders for the supply to Mobil of promotional goods and, having his own budget, he normally carried out his task without much close-range supervision;
(iii)McLean was instrumental in the formulation in mid-1990 or thereabouts (perhaps earlier) of a promotional scheme using jerry cans of a kind supplied in Australia only by Pro-Quip;
(iv)in June 1990 Pro-Quip negotiated with and provided a written quotation to Mobil for direct supply of jerry cans;
(v)Squires, a Queensland business operated since 1989 by Phayre (a very close and long-standing friend of McLean’s and a former fellow Mobil employee), was by 1991 a “preferred supplier” to Mobil of some promotional items;
(vi)in March 1991 Squires, without explanation, placed an order on Pro-Quip (the two then being strangers) for jerry cans to be supplied to Mobil “as per specifications” of Pro-Quip’s quotation to Mobil of June 1990;
(vii)the payments by Squires being the subject of the secret commission counts, of which McLean received the benefit, were made to him or to his wife over the period from August 1990 to March 1992 during which (as the Crown alleged) he was responsible for the unnecessary and fraudulent insertion of Squires as an intermediary in the arrangement for the supply to Mobil of jerry cans by Pro-Quip;
(viii)McLean told police that his wife had worked for Squires and that payments by way of cheque in her favour, said by the Crown to be secret commissions, were paid to her as an employee;
(ix)McLean was again responsible, as the Crown alleged, in May 1992 (T2) and in August 1992 (T3) for the unnecessary and fraudulent insertion of an intermediary in an arrangement for the supply to Mobil of jerry cans by Pro-Quip;
An appropriate nexus between (a) the secret commission counts and (b) the counts referable to T2 and T3 can, in my opinion, be simply described thus. McLean was throughout the period from August 1990 to February 1993 a senior employee of Mobil and in a position to influence the making of contracts by his employer for the supply to it of promotional merchandise. During that period he associated himself in that capacity with a false front (in the case of both (a) and (b)) for the purpose of dishonestly enriching himself at his employer’s expense.
The false front was not the same in the case of (a) as in the case of (b); and of course the legal nature of (a) was not the same as the legal nature of (b), but in my opinion these distinctions do not signify. It is well established that offences that are disparate in point of their legal form may nonetheless be part of a series of offences of a similar character and thus have a sufficient nexus to justify their joinder in the one presentment. A good illustration is R. v. Clayton-Wright.[23] There, the appellant was convicted on four counts, namely, (1) arson of a vessel; (2) arson of the same vessel with intent to prejudice the insurers; (3) attempting to obtain money by false pretences from those insurers in respect of a policy on the vessel; and (4) obtaining money by false pretenses from another insurer by pretending that a mink coat had been stolen from his motor car. The offences the subject of the first, second and third counts were alleged to have occurred on 2 March 1948, and the fourth in June 1947. The appellant unsuccessfully contended on appeal that the fourth count had been improperly joined.[24] Lord Goddard, C.J., speaking for the Court of Criminal Appeal, said[25] –
[23][1948] 2 All E.R. 763.
[24]The Indictment Act 1915, schedule 1, rule 3, was so far as material in terms identical to paragraph 2 of our Presentment Rules.
[25]At 765.
“… the main ground on which the court holds that there was no misjoinder is the following. The charge contained in the first three counts … in substance was that the appellant fired the yacht with the idea of swindling underwriters. The charge with regard to the mink coat was a similar charge of swindling underwriters and, therefore, one gets what I may call the nexus of insurance, the nexus of fraudulent acts to the prejudice of the underwriters going through counts 2, 3 and 4, and, in the opinion of the court, that is sufficient to uphold this indictment because it come within the words of r.3, that the charges ‘are part of a series of offences of the same or a similar character.‘ They were similar in the sense that both charges were charges of swindling underwriters.”
That is closely parallel with this case and offers a useful precedent. It seems, however, that R. v. Clayton-Wright may not altogether have escaped stricture. In R. v. Cranston,[26] a decision of the Queensland Court of Criminal Appeal, Macrossan, J.[27] (with whom McPherson, J. and De Jersey, J. agreed) after observing that the House of Lords in Ludlow had been influenced by Clayton-Wright among other preceding decisions, remarked without elaboration that –
“The case of R. v. Clayton-Wright is a decision which might be thought to take the statement of what is a sufficient degree of similarity and connection for the purposes of the rule[28] a very considerable distance.”
This oblique tilt (if such it was) appears to have provoked the writer of the headnote in the report of Cranston to say that Clayton-Wright was therein “doubted”. That is one interpretation of the words that Macrossan, J. chose to use, but I should not take his Honour to have intended such a censure. After all, the passage in Clayton-Wright that I have quoted was relied on not inconsiderably in Ludlow by Lord Pearson (with whom all other members of the House of Lords agreed) to reach the decision in that case. The decision in Ludlow itself was not the subject of criticism in Cranston and it has been many times referred to and applied in this country. Macrossan, J. went to some trouble, however, to analyse the several judgments in the decision of the High Court in De Jesus v. The Queen[29], some dicta in which are not entirely at one with all aspects of Ludlow on the questions of joinder and discretionary severance. It is, with respect, not possible to discern an authoritative ratio decidendi of De Jesus; but, whatever authority is to be ascribed to its varying judgments, I do not understand that any of them is at odds with the passage in Clayton-Wright that I have quoted. The improbability that the court in Cranston intended seriously to question that passage is increased by the citation and evident adoption, without reservation, of both Clayton-Wright and Cranston in the joint judgment of McPherson, J. and Lee, J. in R. v. Collins, ex p. Attorney-General.[30] I note also that Clayton-Wright was referred to
on the question of joinder, without comment or criticism, by Brennan, J. in Ryan v. The Queen;[31] and by this Court in R. v. Reid.[32]
[26][1988] 1 Qd. R. 159.
[27]At 164.
[28]Scil. that part of the Presentment Rules allowing the joinder of offences that form or are part of a series of offences of the same or a similar character.
[29](1986) 61 A.L.J.R. 1.
[30][1996] 1 Qd. R. 631, at 636.
[31](1982) 149 C.L.R. I, at 22.
[32][1999] 2 V.R. 605, at 622.
Independently of the question whether the offences with which the applicant was charged were “founded on the same facts”, I am with one minor reservation well satisfied to decide, on a basis comparable to that adopted in Clayton-Wright, that the nexus, as I have described it above , justifies a conclusion that all the offences charged against him formed a series of offences of a similar character within the meaning of paragraph 2 of the Presentment Rules. The reservation arises from the considerable period – some two-and-a-half years – that is covered by the charges. It might be said that what could otherwise be considered “a series” had become fragmented over time so as not to deserve that description. The authorities recognise, however, that the relevant paragraph of the Rules should not receive an unduly restricted meaning. In the case of Clayton-Wright itself, the fourth offence charged was alleged to have preceded the three others by some eight or nine months; and in Kray’s Case[33] the court had no difficulty in upholding the validity of an indictment charging two murders alleged to have been committed more than 21 months apart, treating them as a “series of offences” within the meaning of the relevant legislation. So too, in the circumstances of this case, and having regard especially to the quite sophisticated, complex and drawn-out nature of the fraudulent conduct alleged, and to the lead time evidently required to implement some of it, I should not consider the time span sufficient to have deprived the offences of the fair description of “a series”. I would accordingly reject the submission that the Presentment Rules were not satisfied.
[33][1970] 1 Q.B. 125, at 130-1, in a passage approved in Ludlow, loc.cit..
A further discrete basis was relied on for the applicant for the conclusion that the joinder of none of the secret commission counts with any of the other counts should have been allowed. The argument, which was developed under cover of or in association with ground 6, depended on a statutory provision that is capable of modifying the onus of proof in trials for secret commission offences, namely s.186(2) of the Crimes Act 1958.
Notably, all the offences with which the applicant was charged are constituted under Division 2 of Part 1 of the Crimes Act, which Division bears the heading “Theft and Similar or Associated Offences”; and the statutory law with respect to “Secret Commissions Prohibition” is set out in an unnumbered subdivision of that Division in ss.175 - 186. Without rehearsing their terms it is sufficient to state thus the combined effect of ss.176, 177 and 186(2), so far as the applicant was concerned, in the circumstances of this case: proof by the Crown of receipt by the applicant or his wife of money given by Phayre or Squires, without the assent of Mobil, cast the burden on the applicant to prove, on the balance of probabilities, that the money was not received corruptly in contravention of s.176(1).[34] The matters requiring such proof by the Crown were not in serious contest, and the judge duly instructed the jury upon the burden of proof to be assumed by the applicant in the event that the Crown had satisfied them of those matters. By comparison, the onus of proof in respect of the six offences of obtaining property by deception, charged against the applicant under s. 81(1) of the Crimes Act (found in another unnumbered subdivision of Division 2 of Part 1 and headed “Fraud and Blackmail”) lay conventionally on the Crown throughout, and not at all on the applicant. Basing herself on the distinction, counsel for the applicant submitted that joinder of counts in respect of some of which the onus of proof differed, or might potentially differ, from the onus in respect of another or others of them was either impermissible or, at least, should not have been permitted; and that, because it had occurred, there had been a mis-trial. The basis for the contentions was not made entirely clear but, so far as I understood, it was twofold. First, it was said that the joinder of counts in respect of which the accused bears or might bear an onus, and counts in respect of which he does not, requires separate directions to the jury as to categories of onus such as would be likely to generate misunderstanding or confusion on the part of the jury. Secondly, it was said that an accused who bears or potentially bears an onus of proof in relation to some counts only will be inexorably or practically forced to go into the witness box and give evidence in relation to those, thereby submitting himself to cross-examination generally, and thus losing the option of remaining silent which he might choose if faced only with the counts in respect of which he bears no onus. Hence, as it was argued, any such joinder should be regarded as impermissible under the Presentment Rules or should, at least, necessarily have been disallowed as a matter of discretion or should now be regarded as having produced a mis-trial. I think that there is no substance to these contentions.
[34]In other words, proof by the Crown of the actus reus casts on the accused the onus of disproving mens rea: R. v. Jamieson [1988] V.R. 874, at 882.
There are, of course, various circumstances in which an accused person in a criminal trial may be required to bear an onus of proof on the balance of probabilities.[35] The requirement will arise, for example, where as a defence to a charge of murder the accused raises insanity[36], or relies on the circumstance that the death of the deceased occurred in pursuance of a suicide pact.[37] There are other instances in which, if the Crown has proved certain facts, the accused is obliged by statute to prove others in order to avoid a conviction.[38] In such cases the judge will necessarily have to direct the jury upon the standard of proof to be sustained, on the one hand, by the Crown to prove the crime charged beyond reasonable doubt and, on the other, by the accused on the balance of probabilities in order to establish the defence taken or otherwise to avoid conviction. Moreover, the judge will be required in such a case to contrast the two standards of proof; for the direction will be inadequate unless it enables the jury clearly to appreciate what has been described, with studied simplicity, as “the great distinction between very different burdens of proof”[39] resting upon the Crown and upon the defence. The judge’s task in bringing the distinction home to the jury will always require particular care. There can be no room for doubt, however, that the task can be satisfactorily accomplished; and there is no suggestion that it was not accomplished in this case. Indeed, the learned judge went to very considerable lengths to emphasise with perspicuous clarity the distinction between the onus that lay on the Crown and, if the Crown had proved sufficient to attract the operation of s.186(2), the onus that lay on the accused.
[35]Until its repeal by Act 51 of 1989, s. 410 of the Crimes Act 1958 provided that “Wherever by this Act doing any act matter or thing or having a specified article or thing in possession without lawful authority or excuse is made, or expressed to be an offence , the proof of such authority or excuse shall lie on the accused.” The extent of the provision was considered in R. v. Roach [1988] V.R. 665. A similar provision is still to be found in s. 15D of the Commonwealth Crimes Act 1914.
[36]E.g. Mizzi v. The Queen (1960) 105 C.L.R. 659.
[37]Crimes Act 1958, s. 6B; R. v. Sciretta [1977] V.R. 139.
[38]R. v. Ewens [1967] 1 Q.B. 322 provides a good example and illustrates the consequences.
[39]Mizzi v. The Queen, supra, at 664.
A case in which a count where the accused bears no onus of proof is joined with a count where the accused does (or might) bear an onus should not necessarily present any greater obstacle to the jury’s comprehension of “the great distinction” than cases[40] where there is but one charge. I can see no reason in principle why a count alleging an infringement of s.176(1) of the Crimes Act can not, as a matter of technicality, be joined with a count in respect of which the accused bears no onus. The section derives from s. 2 of the Secret Commissions Prohibition Act 1905 of this State, which Act contained from the outset, as s.14, a “reverse-onus “ provision that was reproduced identically in material respects in succeeding consolidations of the Crimes Act down to s.186(2) of the Crimes Act 1958.[41] Sooner or later all the other States and the Commonwealth enacted counterparts of the Victorian Act of 1905; and the comparable legislation of all the other States, save New South Wales, contained a “reverse-onus” provision similar to that in the Victorian Act. Section 2 of the Victorian Act of 1905 was in material respects replicated in s.1(1) of the Imperial Prevention of Corruption Act 1906, which was amended in 1916[42] to add a “reverse-onus” provision[43] of the kind that was originally enacted in the Victorian Act of 1905. In R. v. Carr[44] the accused had been charged, as an officer in the British army, with two offences: one of improper disposal of stores under s.40 of the Army Act and the other under s. 1(1) of the Prevention Of Corruption Act 1906. The “reverse-onus” provision was applied in the case of the latter charge, on which there was a conviction by court -martial, but it could not apply to the former. It does not appear to have occurred to anyone in the course of the unsuccessful appeal that the two charges were on that account improperly joined. Indeed, so far as I can find there has been no suggestion, in the 95 years of the existence of s.186(2) and its numerous predecessors and counterparts, here or elsewhere, that a count to which they might have applied should not be joined with a count to which they could not be applied; and I can find no similar suggestion flowing from any other statutory “reverse onus” provision. Of course that is not conclusive, but if the point now taken had merit one might expect it to have been taken before now. So here, I should not be prepared to say that there was improper joinder simply because s.186(2) was capable of application to some counts against the applicant and not to others. If the joinder was otherwise authorized I cannot see that it could become unauthorized merely because the accused might be induced to give evidence for fear of the application of s.186(2). There was no submission at the trial, at any stage, that the application or possible application of s.186(2) should result in the non-joinder or severance of the secret commission counts. Nor was it ever suggested that the applicant was induced to give evidence only because of the joinder of counts which had been made. The submissions that s.186(2) precluded the joinder of the secret commission counts with other counts, or that its application produced a mis-trial, should be rejected.
[40]Such as Mizzi or Sciretta
[41]Hood, J. described the effect of it in his charge to the jury in R. v. Stevenson [1907] V.L.R. 475.
[42]By s. 2 of the Prevention of Corruption Act 1916.
[43]Applied in R. v. Jenkins & Evans (1923) 87 J.P. 115.
[44][1957] 1 W.L.R. 165, a decision of the Court of Criminal Appeal.
It was submitted for the applicant that the vice of the joinder that was allowed became pronounced because the judge ruled, and directed the jury, that the evidence in relation to the counts of obtaining property by deception could be used (a) to support the applicant’s guilt in respect of counts 1-16 overall, and (b) to rebut any defence that the applicant might offer by reason of the shifting of the burden of proof to him. Counsel for the applicant was, however, not able to point to a record of any such ruling or direction, and I have found none, or any submission made or objection taken at the trial, that might tend to confirm that the judge so ruled or directed the jury. The closest that counsel came to identifying anything of the kind in his Honour’s charge was in that part of it which dealt with the Crown’s contention that McLean acted in concert with Phayre in relation to T1 and with Penfold in relation to T2 and T3 to carry out a joint criminal enterprise. Counsel submitted that, in dealing with the point, the learned judge “impermissibly blended” all the charges of obtaining property by deception. The transcript of that section of the charge (at pages 637-9) does not bear out the criticism. The judge had previously instructed the jury, correctly, that they should consider each count separately; and the direction on the doctrine of acting in concert was entirely consonant with that instruction. His Honour also instructed the jury that they might use the evidence referable to T2 and T3 as explanatory of the applicant’s conduct with respect to T1 when evaluating the defence thesis that the introduction of Squires as an intermediary was done legitimately and in good faith. That instruction was in line with his Honour’s ruling to which I have referred in paragraph [3], which ruling is not now challenged.
For the foregoing reasons I conclude that it has not been shown that the joinder of the counts as they stood was technically impermissible, or that the failure to order any severance should be regarded as, or as having produced, a miscarriage of justice. I would therefore reject grounds 1, 1A, 2 and 6.
The remaining grounds that were argued on the application for leave to appeal against conviction (3, 4 and 5) all allege errors in the learned judge’s jury charge. In considering them it should be understood that no exception of any kind to the charge was taken by counsel for the applicant. Little was said in oral argument in support of these grounds and some were but obliquely touched on in the written outline of argument for the applicant. In the outline, under cover of ground 3, it was contended summarily that insufficient was said in the charge to separate out the conduct of McLean relied on by the Crown in relation to Phayre, on the one hand, and Penfold on the other. The point sought to be made appears to be little different from the one I have already touched on in paragraph [36] to the effect that the judge “impermissibly blended” the counts of obtaining property by deception with which Phayre and Penfold were respectively concerned. The outline asserts that what was said at pages 637-9 of the charge was apt to suggest to the jury that McLean’s conduct in relation to Phayre and his conduct in relation to Penfold was “virtually deemed to be one and the same” and also to be confusing because it followed closely on the judge’s direction as to secret commission, including the “reverse onus” point. It is sufficient to say that in my opinion the relevant passage in the charge was apt neither to convey the suggestion contended for nor to confuse for the reason asserted; and I infer that any such shortcomings of the charge did not indicate themselves to counsel whose task it was to listen to it. I would not, therefore, give, effect to ground 3.
I detected no separate argument in support of ground 4 or ground 5, either orally or in the written outline, additional to that which I have already considered and rejected in connection with the grounds touching the matter of joinder. Grounds 4 and 5, therefore, should also fail and the application for leave to appeal against conviction should accordingly be dismissed.
Sentence
The relevant maximum term of imprisonment awardable for receiving or giving a secret commission contrary to s. 176 of the Crimes Act 1958 is 10 years, and that for obtaining property by deception contrary to s.81(1) is also 10 years. After hearing a plea for leniency for each of McLean, Phayre and Penfold, the learned judge imposed sentences as follows:
On the 16 counts of receiving or giving (as the case may be) secret commissions McLean and Phayre were sentenced identically to be imprisoned on each count for either 6, 9 or 12 months.
For the offences of obtaining property by deception McLean, Phayre and Penfold were sentenced to be imprisoned as follows –
on the counts specifically referable to T1 –
McLean for 18 months on each of count 15 (concerning the sum of $330,000) and count 18 (concerning the sum of $43,448.92);
Phayre for 18 months on count 18 (concerning the sum of $43,448.92). [He was acquitted on count 15].
on the counts specifically referable to T2 –
McLean for 18 months on each of counts 19 (concerning the sum of $180,000) and 21 (concerning the sum of $324,000);
Penfold for 12 months on each of count 2 (concerning the sum of $180,000) and count 4 (concerning the sum of $324,000).
on the counts specifically referable to T3 –
McLean for 24 months on each of count 20 (concerning the sum of $81,000) and count 22 (concerning the sum of $121,500);
Penfold for 12 months on count 3 (concerning the sum of $81,000). [He was not charged in relation to the sum of $121,500.]
Penfold was also sentenced to 9 months’ imprisonment for another offence of dishonesty with which McLean was not concerned.
The learned judge made orders for cumulation and fixed non-parole periods in respect of each of the three men the effect of which was that McLean was sentenced to imprisonment for six years with a minimum of four years, Phayre for 42 months with a minimum of 24 months and Penfold for 21 months with a minimum of 11 months. Additionally, orders for payment of compensation were made in favour of Mobil against McLean for $483,410.80, against Phayre for $43,448.92 and against Penfold for $161,820.60.
McLean initially relied in his application for leave to appeal against sentence on the single ground “That the sentence imposed in totality was manifestly excessive.” The following grounds were added by leave of the Registrar –
2.The Learned Sentencing Judge erred in finding that specific deterrence was applicable in the case of the Applicant.
3.The Learned Sentencing Judge erred in finding that a sentence of imprisonment was the only sentencing option which was appropriate in the circumstances.
4.There was a significant disparity between the sentence imposed upon the Applicant and that imposed upon the erstwhile co-accused Penfold in relation to the counts which involved both persons, having regard to the age and background of both persons.
5.The Learned Sentencing Judge failed to take sufficiently into account the principle of totality in the accumulation of the various counts of imprisonment.
McLean had no prior convictions and upon his plea adduced evidence of his good character.
The learned judge in his sentencing remarks briefly traced the applicant’s business career from the time he joined Mobil as a trainee in 1969 until his retrenchment in 1993. His Honour accepted his counsel’s description of him in the course of the plea as a very competent and well regarded employee. That very competence and reputation, long-standing employment and seniority, however, led his Honour to characterise the applicant’s offences – correctly as I think – as very serious. They constituted what the judge rightly called a “gross breach of trust” against his employer. His was a senior management position, in which he was entrusted with his own budget and was responsible for subordinate staff. The position carried with it a commensurate obligation of honest dealing, first with his employer, secondly with his fellow employees and thirdly with others with whom he dealt on his employer’s behalf. His conduct giving rise to his offences demonstrated the antithesis of that in every respect, for it entailed elaborately planned dishonest dealing over an extended period in all three areas. His Honour noted that the applicant was without remorse, none having been shown or suggested, and that he offered no excuse for his criminal behaviour, which was to be attributed to greed: it was a reasonable inference that some of the illicit profit from the Tanbros transactions, at least, went to the applicant. The amount lost by Mobil was, in all, $483,410.80.
His Honour said that he regarded the principal relevant sentencing factor as general deterrence, but that the case was not one in which regard should not be had to specific deterrence. The probability, as his Honour saw it, was that the applicant might well involve himself in future commercial activity, even if it were to assist his second wife in her garden supplies business. It was objected in this court that by that statement the learned judge should be taken to have assumed that the applicant would or might re-offend, and that there was no basis for the assumption. On the contrary, so it was argued, all the indications, including his age, background and previous good character, told against a prospect of his re-offending. I would not accept that submission. The essentially deceitful nature of the applicant’s extended conduct renders extremely difficult, if not impossible, a conclusion that it was (as it was submitted) totally out of character; and I consider that the judge was not in error in paying some heed to that. That is not to say that specific deterrence necessarily loomed large as a sentencing factor, but then the judge did not so treat it.
Ground 3 was not argued.
The disparity between the sentence awarded to the applicant and that awarded to Penfold, on which ground 4 relies, was in my opinion neither inexplicable nor undue: there were several differences between the two offenders that justified it. It is to be noted, first, that McLean stood to be sentenced for six offences of obtaining property by deception, and Penfold for three. The judge was no doubt entitled to regard, as he did, the two counts specifically referable to T3 as deserving the longest terms of imprisonment among of the applicant’s six offences of that kind. One of them was also the last of the offences committed by McLean that were common to him and Penfold, and they were two of a series of similar offences that McLean had committed over an extensive period. Moreover, the judge was entitled to treat McLean’s deceitful conduct in committing his offence as deserving more severe punishment than that of Penfold, who had been junior to McLean at Mobil and who had, in any event, left the employ of Mobil by the time his offences of obtaining property by deception were committed. Penfold’s offences, therefore, were not – or were not so clearly – in breach of trust. Finally, the judge gave some weight, although perhaps not a great deal, to Penfold’s late plea of guilty and acknowledged, be it with a degree of reluctance, its tendency to support his assertion, through his counsel, of extreme remorse. In all the circumstances I think that it is not possible to say that the discrepancy between McLean’s and Penfold’s sentences displays sentencing error in the case of McLean. Ground 4 should therefore fail.
The argument in support of ground 5 , founded on the principle of totality, placed reliance on the decision of the Full Federal Court in McDonald v. The Queen[45], as had been done in the course of the plea below. In that case the appellant, an accountant, had pleaded guilty to a series of serious fraudulent “white collar” crimes committed over a period. Burchett and Higgins, JJ. (with whom Spender, J. generally agreed) took the opportunity to observe that “…a first time in gaol, for a person of previous good character, is likely to be a severer punishment than the same period would be for a hardened criminal, or even when suffered for the second time.” The notion is no doubt true, but it is very well understood. With proper respect to those who made the observation in the context of that case, I should be unwilling to treat it as expounding any principle to the effect that those with no criminal record who choose to engage in serious “white collar” crime can expect to be sentenced as though they form a privileged class.[46] Where appropriate, these people are liable to find themselves condignly dealt with, even as first offenders. So much is explained in decisions such as R. v. Jamieson[47] and R. v. Poyser[48], and expounded and emphasised by more recent pronouncements of this Court in, for
example, R. v. Quinn[49] and R. v. Bulfin[50]: there is no virtue in its repetition here. I am quite unable to accept the contention that in this case the principle of totality was breached or, indeed, that the applicant’s sentence was manifestly excessive, as ground 1 asserts .
[45](1994) 48 F.C.R. 555.
[46]A similar sentiment is expressed in Fox and Freiberg on Sentencing, 2nd ed., para. 3.905, page 346.
[47][1988] V.R. 879, at 888.
[48]Unreported, Court of Criminal Appeal, 15 September, 1988.
[49]Unreported, Court of Appeal, 10 October 1997, at 34-5.
[50][1998] 4 V.R. 114, esp. at 131-2.
I would for these reasons dismiss the application for leave to appeal against sentence.
BATT, J.A.:
I have had the very considerable advantage of reading in draft the reasons of Tadgell, J.A. His Honour’s researches and reasons have entirely dispelled the doubt which I at one stage entertained as to the technical correctness of the joinder of the counts relating to Transactions 2 and 3 with the secret commission counts. I agree with his Honour in all respects.
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