R v Parkes

[2003] NSWCCA 12

Reported Decision: 147 A Crim R 450

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Parkes [2003] NSWCCA 12
HEARING DATE(S):	06/12/02
JUDGMENT DATE:	17 February 2003
JUDGMENT OF:	Ipp JA at 1; Hulme J at 133; Bell J at 141
DECISION:	(1) Appeal against convictions dismissed (2) Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW - evidence - claim of right - whether judge erred in striking out as irrelevant part of Crown witness' testimony favourable to defendant's claim - whether judge erred in not allowing defendant to cross-examine on evidence that was struck out - EVIDENCE - hearsay - whether evidence admissible at common law as a prior consistent statement - whether admissible under s 65 or s 66 of the Evidence Act 1995 - where evidence admissible under s 66 of the Evidence Act - where evidence not significant - whether exclusion gave rise to a miscarriage of justice - EVIDENCE ACT - whether trial judge erred in making appellant aware in the presence of a jury the effects of s 128 of the Act - whether trial judge contravened s 132 of the Act - CRIMINAL TRIAL - forensic tactics - where Crown used s 38 of the Evidence Act as a forensic device - whether unfair or improper advantage - whether abuse of section - whether judge's failure to refer to s 192 of the Evidence Act an error of law - where Crown case is strong - whether cumulative effect of errors result in a lost chance of defendant being acquitted - Criminal Appeal Act 1912 s 6(1) - appeal dismissed.
LEGISLATION CITED:	Corporations Law, s 596(b) Evidence Act 1995, ss 38, 65, 66, 128, 132, 192(2) Criminal Appeal Act 1912, s 6(1)
CASES CITED:	Glennon v The Queen (1994) 179 CLR 1 Graham v The Queen (1998) 195 CLR 606 Mraz (1955) 93 CLR 493 Nominal Defendant v Clements (1960) 104 CLR 476 R v Esho [2001] NSWCCA 415 R v Fowler [2000] NSWCCA 142 R v Hogan [2001] NSWCCA 292 R v Kingswell (unreported, NSWCCA, 2 September 1998) R v Mansour (unreported, NSWSC, 19 November 1996) R v Milat (unreported, NSWSC, 23 April 1996) R v Pantoja (unreported, NSWCCA, 5 November 1998) R v Nguyen [2002] NSWSC 59 R v Reardon [2002] NSWCCA 203 R v Van Le [2002] NSWCCA 186 Stanoevski v The Queen (2001) 202 CLR 115
PARTIES :	Regina v Damien Parkes
FILE NUMBER(S):	CCA 60506/01
COUNSEL:	B T Stratton QC (Appellant) R Sutherland SC (Respondent)
SOLICITORS:	Ross Hill & Associates (Appellant) Commonwealth DPP (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 00/11/0291
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

60506/01

IPP JA
HULME J
BELL J

Monday 17 February 2003

REGINA v Damien PARKES

FACTS

The appellant appealed against convictions on seven counts of committing offences under s 596(b) of the Corporations Law as it was prior to 15 July 2001. The offences related to defrauding separate nominated companies. In each instance, the appellant caused a cheque in a particular amount to be drawn by a nominated company and the proceeds to be paid to a third party. The aggregate amount transferred was $162,500. At trial, the appellant’s defence was that he was entitled to the monies transferred as of right, as he had been a consultant for one of the companies and he had charged fees for services rendered.

The appellant also sought leave to appeal against sentence. The overall sentence imposed was a total head sentence of five years imprisonment with a non-parole period of three years.

The first ground of appeal was that the trial judge erred in striking out part of the evidence-in- chief of a Crown witness by the name of Jenkinson that was favourable to the appellant, and in refusing to allow him to cross-examine in regard to that evidence. The trial judge’s decision was based upon a finding that the evidence was “strictly irrelevant”. The evidence that was struck out supported the claim of right as it was to the effect that the appellant had said to Jenkinson that he, the appellant, had done some consultancy work for the company in question and was expecting some fees in return.

Were the evidence to be relevant, two questions in regard to the issue of miscarriage of justice arose. Firstly, was the evidence inadmissible as it was hearsay (in which case no miscarriage of justice could occur). Secondly, if the evidence was admissible did it give rise, generally to a miscarriage of justice.

As regards the issue of hearsay:

a) The evidence was plainly hearsay but;

b) it was arguably admissible at common law as a prior consistent statement according to the recent invention doctrine, and under s 65 or s 66 of the Evidence Act.

c) It was not argued that it was admissible under s 108 of the Evidence Act 1995 .

The second ground of appeal was that the trial judge erred in permitting the prosecution to cross-examine the witness Ian Harris under s 38 of the Evidence Act . The Crown decided to call Harris as part of its case even though he was considered to be in the defence camp. When Harris was cross-examined he gave evidence favourable to the appellant and the prosecution applied to cross-examine Harris under s 38 as regards this evidence. The Crown had known beforehand that Harris might give unfavourable evidence. The Crown made a deliberate forensic decision to call Harris so as to question him, in chief, on certain issues but to refrain from asking him about three particular issues because of a reasonable fear that he might give unfavourable evidence in regard to them. On appeal, it was submitted that in the circumstances the forensic tactics of the Crown in the use of s 38 caused unfairness to the appellant and was an abuse of the said section.

The third ground of appeal was that the trial judge erred in making the appellant aware, in the presence of the jury, of the effect of sections s 128 of the Evidence Act when granting a certificate under that section. Arguably this contravened s 132 of the Act.

The fourth and fifth grounds of appeal related to a folder of documents sent to the jury room in error which was discovered during their deliberations but before their verdict.

The application for leave to appeal against sentence was based on the argument that the overall sentence imposed was excessive.

Held: Ipp JA ( Hulme and Bell JJ agreeing)

1) The trial Judge erred in striking out Jenkinson’s testimony as irrelevant.

2) Jenkinson’s evidence was hearsay and was not admissible as a prior consistent statement.

Held: Ipp JA (Bell J agreeing)

3) The appellant was notionally available, as part of his case, to confirm that the statement he had made to Jenkinson was true.

4) Therefore s 65 of the Evidence Act did not apply.

5) Jenkinson’s evidence was admissible under s 66 of the Evidence Act as, apart from the fact that the appellant, notionally, would have been “available”, as part of his case, to give evidence to confirm that the statement he made to Jenkinson was true, the evidence was “fresh” within the meaning of s 66(2)

6) The trial judge erred in refusing to allow the appellant to cross-examine Jenkinson concerning the evidence that had been struck out.

7) Nevertheless, the evidence sought to be elicited from Jenkinson was not significant.

Hulme J, dissenting : The appellant was not “available” to give evidence. Therefore, the evidence sought to be elicited from Jenkinson in cross-examination was inadmissible and the trial judge did not err in refusing to allow cross-examination in that regard.

Held Ipp JA (Hulme and Bell JJ agreeing)

8) The trial Judge did not err in permitting the Crown prosecutor to cross-examine Harris under s 38 as:

(a) The deliberate forensic decision to call a witness to ask him in chief on certain issues but to refrain from asking him about others because of the reasonable fear that he might give unfavourable evidence, was not, in the particular circumstances unfair to the appellant.

(b) Section 38 has the potential for transforming traditional procedure. The mere fact that this occurred was not enough to constitute unfair manipulation. Although the deliberate decision taken by the Crown fell into the basket of forensic tactics, it did not lead to the Crown’s application being an abuse of the section.

(c) Although the trial Judge made no express reference to s 192(2), his Honour did say that the decision he had to make was on the basis of what he considered fair. A failure to explicitly refer to the matters mention in s 192 is not of itself an error of law; R v Reardon [2002] NSWCCA 203 What is required is a proper inquiry into the unfairness it might cause; Stanoevski v The Queen (2001) 202 CLR 115 ; R v Hogan [2001] NSWCCA 292; R v Van Le [2002] NSWCCA 186. No error on the part of the trial judge was shown.

9) As regards the third ground of appeal, the procedure adopted regarding s 128 of the Evidence Act was contrary to s 132 of the Act . Nevertheless no significant prejudice was caused the appellant.

10) As regards the fourth ground of appeal, although the documents should not have been provided to the jury, they were innocuous and could not have influenced the jury in any way against the appellant

11) No miscarriage of justice occurred in respect of any of the grounds of appeal that were made out. The essential issue in that regard was the strength of the Crown case as to the fraudulent intention of the appellant, relative to the strength of the claim of right raised by him. The claim of right was basically a chimera rather than a thing of substance. Having regard to the cumulative effect of the errors, and in light of the strength of the Crown case, the errors in question, taken individually or cumulatively, did not result in the appellant losing a chance which was fairly open to him of being acquitted. In consequence the proviso under s 6(1) of the Criminal Appeal Act 1912 applies: Mraz (1955) 93 CLR 493

12) As regards the application for leave to appeal against sentence, the sentences in their totality were within his Honour’s discretion, given the carefully contrived deceit of the appellant.

Orders


(1) Appeal against convictions dismissed.

(2) Application for leave to appeal against sentence dismissed.

**********

60506/01

IPP JA
HULME J
BELL J

Monday 17 February 2003

REGINA v Damien PARKES

Judgment

1 IPP JA: This is an appeal against convictions on seven counts of committing offences under s 596(b) of the Corporations Law as it existed prior to 15 July 2001. The criminal conduct alleged in each count was that the appellant, as an officer of a nominated company, with the intent to defraud the company, caused property belonging to it to be transferred to another. Each count was based on allegations that the appellant caused a cheque, in a particular amount, to be drawn by the nominated company and the proceeds to be paid to the payee (a third party). In counts 1, 2 and 3 the nominated company was Lawnkin Pty Limited and in counts 4, 5, 6 and 7 the nominated company was Nambucca Investments Pty Limited. The payee in each case differed. The aggregate amount so transferred was $162,500.

2 The appellant was sentenced to 12 months imprisonment in respect of each count in the indictment. The terms of imprisonment in respect of counts 1, 2, 3, 4 and 6 were ordered to be served cumulatively, leading to a total head sentence of five years imprisonment. The sentences in respect of the fifth and seventh counts were directed to be served concurrently with the sentence in respect of the first count. An overall non-parole period of three years was ordered. The appellant also applies for leave to appeal against sentence.

3 The offences were alleged to have been committed against a background of some complex commercial transactions. It is not necessary to go into these in any detail. For the purposes of these reasons it is sufficient merely to note the following:

(a) Nambucca Investments Pty Limited was an old established finance company operating in Macksville on the north coast of New South Wales. Lawnkin was a wholly owned subsidiary of Nambucca.

(b) James Kearns was a Sydney solicitor who held 30% of the shareholding in a New Zealand insurance company and other associated companies known as the Equitable Insurance Group. For some time prior to December 1994 Kearns attempted to obtain finance in the sum of $3m. to enable him to acquire the remaining 70% shareholding in the Equitable Group.

(c) The appellant was the chairman of Austwide Capital Limited, a company whose business it was to arrange finance and to act as management consultants. The appellant effectively controlled Austwide.

(d) Since about 1990 the appellant had had a business relationship with Kearns. In the latter part of 1994 the appellant became involved in endeavouring to raise monies to facilitate Kearns’ proposed takeover of the Equitable Group.

(e) In September 1994 a scheme was proposed whereby Kearns would arrange for Equitable to take over Nambucca and the assets of Nambucca would be used to help finance Kearns in obtaining the other 70% of the Equitable Group.

(f) It was in the interests of a number of persons connected with the Nambucca group that the scheme should proceed.

(g) Certain steps were taken in implementation of the scheme and the appellant was nominated by Kearns as the person from whom the directors and other persons in the Nambucca group were to take instructions. The appellant was to be “the financial controller for the Group”.

4 At the trial there was a great deal of evidence to the effect that the appellant exercised a substantial degree of control over the Nambucca group and this tended to establish that the appellant was an officer of Nambucca. The jury plainly found the appellant to be an officer and there is no ground of appeal that challenges this.

5 The Crown’s case at trial, in essence, was that the appellant treated the Nambucca group as a ready source of cash funds which the appellant, unlawfully, utilised for his own personal benefit.

6 There was no dispute at trial that the specified amounts in each count were in fact paid pursuant to directions given by the appellant. The Crown, however, had to establish that the payments, or transfer of property, in each case, occurred with an intention on the part of the appellant to defraud the company from which the payment was made.

7 There was ample evidence of general dishonest conduct on the part of the appellant. In a letter to Kearns of 30 March 1995 he referred to the “Nambucca hoist”. He referred to the fact that “we tried to confuse everyone so there were no documentation regarding the trustee borrowing funds”. He referred to the fact that Austwide had “previously misled [Phillip Hall, a major shareholder in the Nambucca group] about the use of funds”. In the letter of 30 March 1995 the appellant wrote:

“The funding runaround that I did was to protect you and me. Now its[sic] exposed, it exposes me with Havendock”.

Havendock was a de-registered company associated with the appellant and its name had been used in a number of the transactions.

8 The Crown contended that fraudulent intent on the part of the appellant was to be inferred from his conduct generally and, in particular, from the fact that he ascribed the payments to loan accounts which, the Crown contended, were non-existent, in circumstances where the appellant had misled Mr Hall and another officer of Nambucca in regard to the reason for the payments. In this respect, apart from other material in the letter of 30 March 1995, the appellant noted that he and Mr Kearns had:

“spent considerable time confusing [Mr Hall] … We spent some time confusing him for our joint interest. He should be left in the dark because he is dangerous”.

9 The appellant’s defence was that he was entitled to the monies transferred as of right. He asserted that, at a meeting on 29 September 1994, a management agreement had been arrived at between Nambucca and himself and this agreement had been executed and sealed at that meeting. According to the appellant, in terms of the management agreement he was entitled to fees for the work he had done and he had in fact raised invoices for the work that he had done.

10 Thus, there were live issues at the trial regarding whether or not the management agreement alleged by the appellant existed and whether the remuneration for the work he claimed to have done in any way correlated with the aggregate sum of $162,500 which the Crown alleged had been misappropriated.

11 In support of his claim that he was entitled to the monies in question as of right, the appellant contended that, apart from a certain number of invoices that had been located, there were an additional 20 to 30 invoices that he had created and sent to Nambucca for the work he had done. These 20 to 30 invoices were an important part of the appellant’s rebuttal of the Crown case that the fees to which he was entitled for the work he had done amounted to far less than the sum of $162,500.

12 Dodd DCJ, in charging the jury, described the Crown case on these issues as follows:

“Now in this situation in each particular case, the Crown says there is no entitlement to fees by Austwide Capital or Mr Parkes or anyone else on behalf of Austwide Capital. There was no management agreement and in any event the work alleged to have been carried out by Mr Parkes or other employees of Austwide Capital did not justify the level of fees said to support the amounts paid out and referred to in each of the charges. So that the Crown says that even if you had doubts as to whether there was a management agreement in existence such as is alleged by the accused, that you would nevertheless be satisfied on the evidence that the work had not been done to justify the level of fees that the accused now says was owing, and in any event the Crown says no accounts to justify those fees or to assert those fees had been rendered or sent to either Lawnkin or Nambucca Investments or any other company in the group of Nambucca Investments, apart from those that are specifically in evidence and that were directly paid”.

His Honour described the defence case in regard to these issues as follows:

“On the other hand the accused says that he had for Austwide Capital a management agreement specifying that he was to manage the affairs of Nambucca Investments Pty Limited and the other companies within the group; that he and his associates and employees in the company Austwide Capital carried out work to justify fees which were in fact sent by invoices, some twenty to thirty missing invoices to the Nambucca Investments Group; and that the cheques that were drawn, that are referred to in each of the charges, were drawn only on the basis that his company, Austwide Capital Limited, was entitled to those fees and therefore he did not deliberately use dishonest means to deprive those companies of their property to imperil the rights or interests of those companies.
He says he did not intentionally create a situation to use dishonest means to deprive those companies of money or property or to imperil their rights or interests, and he certainly was not in the position of knowing that he had no right to deprive those companies of money or property or imperil their interests. On the contrary he says he was acting on the basis that his company Austwide Capital Limited was entitled to those fees”.

13 I now turn to the first ground of appeal, which is in the following terms;

“His Honour erred in striking out that part of the evidence-in-chief of the witness Perry Cecil Jenkinson where the witness said that the appellant indicated that he was involved in some consultancy work and was expecting some fees to come through and in not allowing Counsel for the appellant to cross-examine the witness on the same topic”.

14 Jenkinson was a director of the payee of the cheque the subject of the first count. He was called to testify by the Crown and in the course of his evidence in chief the following exchange took place:

“Q. In due course you have a recollection that some time in November 1994 Mr Parkes indicated that he had some activities in which he was involved regarding some projects in the vicinity of Coffs Harbour and he thought he would be able to make some payment to you?
A. Mr Parkes indicated that he was involved in some consultancy work and was expecting some fees to come through”.

15 At the conclusion of the evidence-in-chief and in the absence of the jury, the crown prosecutor applied for leave to question Jenkinson under s 38 of the Evidence Act 1995 on the ground that the last-mentioned answer was evidence unfavourable to the Crown. The prosecutor explained that he wished to cross-examine Jenkinson about that evidence “and how it is that he has made that suggestion today”. He also said that he wished “to explore with him on that basis what his ongoing relationship is with Mr Parkes”.

16 In the course of making this submission the crown prosecutor said that he would have thought that Jenkinson’s reply to his question “was non-responsive to the question which I asked”.

17 Dodd DCJ inquired, “why don’t I just strike out the answer, it is non-responsive”. Counsel appearing for the appellant submitted that it was not “non-responsive”. He told the judge that Jenkinson had made a statement to ASIC in which “those very similar words appear” and said that he intended to obtain that evidence from Jenkinson in cross-examination. The judge then observed:

“You said you were going to get it out in cross-examination – the whole point of this is I will not let you get it out in cross-examination. He cannot give that evidence, whether it is in chief or in cross”.

18 The crown prosecutor proceeded to express concern that the jury had heard the evidence, in any event, and - despite any direction that the judge might give - might take it into account. He persisted in his application to cross-examine the witness under s 38.

19 Dodd DCJ then said:

“I think the better way of dealing with it is to strike it out, quite frankly. I think the other alternative has the tendency to let in evidence not only from this witness, which is strictly irrelevant, but because of the very things you have referred to, expand the case into areas where it need not go, both in relation to this witness and potentially in relation to other witnesses. I [in]tend to strike out evidence and tell the jury to ignore it”.

This indeed is what his Honour did.

20 In explaining to the jury why he had struck the evidence out and in telling them that they were to ignore that evidence he said:

“It is strictly irrelevant”.

21 The appellant says that the nub of his case at the trial was that he was a consultant for the Nambucca group and he had charged fees for the services he had so rendered; the appellant submits that he should have been allowed to adduce evidence that, at the time of his dealings with the Nambucca group, he was making comments consistent with these facts.

22 The Crown contends, on the other hand, that Dodd DCJ was correct in ruling the answer as non-responsive and in not allowing cross-examination “on a patently hearsay, self-serving assertion of a fact put into the mouth of the accused by a colleague”. The Crown points out that Jenkinson had not previously asserted that the appellant had told him about any consultancy work in which he, the appellant, was involved and that he was expecting some fees in that connection. The Crown points out that the appellant, in his testimony, did not assert that he had said anything to that effect to Jenkinson. The Crown submits that it would have been considerably disadvantaged had an order not been made under s 38, had the evidence remained.

23 At the outset, it is plain that the issue whether the appellant was a consultant for Nambucca and that in November 1994 he was expecting fees from Nambucca in consequence of his consultancy work for the group, was highly relevant to his defence. Accordingly, the observation by Dodd DCJ that the evidence was “irrelevant” is not correct.

24 Also it is not to the point that Jenkinson had not previously asserted that the appellant had told him about the matters in question or that the appellant, in his testimony, did not testify that he had said anything to that effect to Jenkinson. Neither of these matters is a ground for striking out the evidence and refusing to allow the appellant to cross-examine. They are merely grounds that would support an application by the Crown to cross-examine under s 38.

25 Strictly speaking Jenkinson’s reply to the question asked of him was non-responsive. Nevertheless, the following comments need to be made about the exchange between the prosecutor and Jenkinson:

(a) The question contained in effect two sub-questions. Firstly, did the appellant indicate to Jenkinson “that he had some activities in which he was involved regarding some projects in the vicinity of Coffs Harbour”? Secondly, did the appellant indicate to Jenkinson that he thought that he would be able to make some payment to him?

(b) Therefore, it is not surprising, that, in answer to the question, Jenkinson did not merely reply in the affirmative, but answered each sub-question separately by giving separate and detailed answers to each. It is understandable that in his reply Jenkinson thought it necessary to explain the “activities” in question and to explain that the appellant had said that he “was expecting some fees to come through.”

(c) Next, it is not without significance that, after Jenkinson had replied, the prosecutor did not ask that his reply be struck out.

(d) The idea that Jenkinson’s reply be struck out emanated from the judge and his Honour proceeded to strike out that evidence despite the persistence of the crown prosecutor in his attitude that the evidence should stand and he should be allowed to cross-examine Jenkinson under s 38 in respect thereof, and despite the opposition of the appellant’s counsel.

26 The obvious relevance of Jenkinson’s reply, the rolled-up question, which in a sense explained – if it did not invite – the answer in the terms given, the failure of the prosecutor to object at the time, and the opposition of the parties to the course of conduct proposed by the judge, lead me to conclude that his Honour erred in striking out the material.

27 The next question is whether his Honour erred in refusing to allow counsel for the appellant to cross-examine Jenkinson so as to elicit in cross-examination the evidence that had been struck out.

28 As appears from the comments made by the judge, he considered that the evidence should not be the subject of cross-examination as it was “strictly irrelevant” and would “expand the case into areas where it need not go, both in relation to this witness and potentially in relation to other witnesses”. His Honour gave another reason for refusing to allow cross-examination and this needs to be noted. The crown prosecutor had informed the judge that there was an ongoing relationship between Jenkinson and the appellant and, by implication, submitted that Jenkinson had a motive to give false evidence about the issue in question. His Honour appeared to accept that this was a reason for not allowing cross-examination on the matter.

29 His Honour erred, as I have said, in regarding Jenkinson’s testimony as irrelevant. This disposes of the factor that to allow cross-examination would expand the case. That Jenkinson may possibly have been lying (as to which I can express no opinion), had no bearing on the question of cross-examination - save to the extent that, had the evidence not been struck out, or had it been adduced by the defence in cross-examination, there would have been strong grounds for the application under s 38 of the Evidence Act foreshadowed by the crown prosecutor.

30 It follows, in my opinion, that Dodd DCJ erred in striking out Jenkinson’s evidence on the grounds relied upon by him and in refusing to allow the appellant to cross-examine Jenkinson about the issue, the subject of the evidence that was struck out.

31 Next, it is necessary to determine whether that error led to a miscarriage of justice. Two questions arise. Firstly, is it the case that Jenkinson’s evidence was hearsay and inadmissible as such? If the answer to this question were to be in the affirmative it would mean that no miscarriage of justice occurred as the evidence should have been struck out and no cross-examination allowed, in any event. If the answer to the question were to be in the negative, the further question arises as to whether the striking out of the evidence and the refusal to allow the appellant to cross-examine Jenkinson resulted in a miscarriage of justice.

32 I shall deal, firstly with the question whether Jenkinson’s evidence was hearsay, and – hence – inadmissible.

33 Mr Stratton QC (who appeared for the appellant in the appeal) submitted, that Jenkinson’s evidence was admissible as evidence of prior consistent statements by the appellant. Implicitly, this involves a concession (that was inevitable) that Jenkinson’s evidence was hearsay, but that it was nevertheless admissible under an exception to the rule against hearsay.

34 The exception on which Mr Stratton relied is that which holds that hearsay evidence of prior consistent statements is admissible to rebut allegations of recent invention or reconstruction. The rule was explained by Windeyer J in Nominal Defendant v Clements (1960) 104 CLR 476 at 494 as follows:

“The kind of imputations and allegations that – if sufficiently clearly made – will let in prior consistent statements are: First, that the witness’ testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated”.

35 Dixon CJ expressed similar views at 479 to 480 and warned that caution was required in applying the recent invention rule. He said (at 479):

“But, in as much as the rule forms a definite exception to the general principle excluding statements made by the witness, great care is called for in applying it.”

36 The crown prosecutor opened his case by pointing out that Mr Hall of Nambucca would say that “by October/November” 1994 the appellant or Austwide had raised invoices claiming fees “for some consultancy and management type work” (Black 68). Hall in fact testified that on 15 November 1994 he received three invoices reflecting charges by Austwide, the first of which was dated 14 October 1994, the second was dated 8 November 1994 and the third was dated 15 November 1994. The first two invoices reflected charges for work done and the third specifically claimed $2,000 for “management fee, head office on account … “. Hall’s evidence in this respect was not challenged.

37 In opening, the prosecutor asserted to the jury that the appellant’s claims in the first two invoices that he was entitled to be paid for work done, and the claim in the third invoice that he was entitled to a management fee, were false. The prosecutor also contended that any like claims that may have been made in any other, later, invoices (that is, those which the jury might consider were sent) were equally false. The Crown persisted in these contentions throughout the trial.

38 In effect, it was common ground between the parties that by 15 November 1994 the appellant had begun sending invoices to Nambucca claiming fees pursuant to a management agreement. The appellant contended that he had continued to send invoices (amounting to 20 or 30 more) making such claims and the Crown argued that this contention was false.

39 For Jenkinson’s evidence about the statement the appellant allegedly made to him “some time in November” to constitute a “prior consistent statement” by the appellant (so as to permit it to be admitted in to evidence as an exception to the hearsay rule), the statement in question would have to have been made prior to the time the appellant commenced sending invoices claiming management fees. But, on Hall’s unchallenged evidence, he received the first invoice in which such a claim was made on 15 November 1994 (that is, more or less at the same time that the appellant made the statement in questions to Jenkinson).

40 In the circumstances, in my view, Jenkinson’s evidence does not tend to rebut the Crown’s suggestion that the appellant’s claim to be entitled to fees for consultancy work was a fabrication. The fact that, at about the time the appellant began claiming fees from Nambucca for consultancy work, he told others that he was entitled to fees on the same basis, takes the matter no further.

41 For these reasons, in my opinion, Jenkinson’s evidence did not become admissible on the ground of the recent invention doctrine.

42 Mr Stratton did not refer to s 108 of the Evidence Act and the Court did not raise that section with him. The Court, did raise s 65 and s 66 of the Act with Mr Stratton and, in view of the conclusion to which I come in regard to s 66, it is unnecessary to discuss s 108.

43 Section 65 provides:

“1. This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact …
8. The hearsay rule does not apply to:
(a) oral representation of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representations being made …”

44 Section 66 provides:

“(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person; or
(b) a person who saw, heard or other perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory who made the representation”.

45 Admissibility of hearsay evidence under s 65 or s 66 depends upon the “availability” of a witness to give evidence (s 65(1) and s 66(1)).

46 Paragraph 4 of the dictionary to the Evidence Act provides:

“1. For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a) …
(b) the person is, for any reason other than the application of s 16 (competence and compellability: judges and jurors), not competent to give the evidence about the fact …
…”

47 Section 17(2) of the Act provides that a defendant in a criminal proceeding “is not competent to give evidence as a witness for the prosecution”. There is, of course, nothing that precludes a defendant from giving evidence as part of his or her own case.

48 Thus, a defendant in criminal proceedings is not competent (and hence not “available”) to give evidence as part of the prosecution case, but is competent (and “available”) to give evidence as part of his or her own case.

49 In the present case it is necessary to judge the admissibility of Jenkinson’s evidence under s 65 and s 66 on a notional basis. That is because the question of hearsay was not advanced at the trial and it is necessary, for the purposes of the appeal, to judge whether, had the point been taken, the evidence would have been admitted. I assume that, had the Crown taken the point that the evidence was hearsay, the appellant would have contended that the evidence was admissible under either s 65 or s 66. The admissibility of the evidence in question under either section depends, in the first instance, upon whether the appellant was “available to give evidence”.

50 “Availability,” in the sense the term is used in s 65 and s 66, concerns the availability of a witness to be called to give evidence and to be cross-examined. That is, availability to testify about the veracity of representation previously made by the witness to another person. In the present circumstances, the critical aspect of the appellant’s availability is whether he would notionally be available, as part of his case, to confirm that the statement he had made to Jenkinson was true. The appellant was, in fact, so available. In the circumstances, in my opinion, the appellant was available to give evidence within the meaning of s 66(1). In other words, the appellant was available, as part of his case (albeit not as part of the Crown case) to give evidence about the representation he had made to Jenkinson.

51 On the basis of this reasoning, the only remaining issue that needs to be addressed under s 66(2) is whether, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the appellant (see s 66(2)).

52 As the issue of hearsay was not canvassed at the trial, the issue of freshness was not canvassed. In Graham v The Queen (1998) 195 CLR 606 Gaudron, Gummow and Hayne (at 608) said:

“The word ‘fresh’, in its context in s 66, means ‘recent’ or ‘immediate’. It may also carry with it a connotation that describes the quality of the memory (as being ‘not deteriorated or changed by lapse of time’) but the core of the meaning intended is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years”.

53 The appellant contended that the consultancy agreement was arrived at in September 1994, and the work done for the fees in question must have been performed in the period between September and November 1994. According to Jenkinson, the appellant gave the “representation” “some time in November 1994”.

54 Accordingly, the occurrence of the asserted fact (to which s 66(2) requires regard to be had) – namely, that the appellant had done some consultancy work for the Nambucca group and was expecting some fees to come through – was likely to have been “fresh” (in the sense of Graham) in the appellant’s memory at the time he made the representation to Jenkinson.

55 In the circumstances (and having regard to the fact that the issue was not raised at trial and the appellant had no opportunity of dealing with it there), I am of the opinion that this Court should deal with the issue as if Jenkinson’s evidence, although hearsay, was capable of being elicited by either party in the proceedings as, by virtue of s 66(2), the hearsay rule did not apply thereto.

56 Accordingly, I consider that Dodd DCJ erred in refusing to allow the appellant to cross-examine Jenkinson and to elicit the evidence that in November 1994 the appellant represented that he was involved in some consultancy work and was expecting some fees in that connection.

57 The next question to be considered is whether, despite the error, the appeal should be dismissed on the ground that “no substantial miscarriage of justice has actually occurred (s 6(1) of the Criminal Appeal Act 1912).

58 In Glennonv The Queen (1994) 179 CLR 1 Mason CJ, Brennan and Toohey JJ (at 9 to 10) said:

[“It should not be accepted] that the proviso [the Victorian equivalent of the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW)] will never be applied where the misdirection goes to the accused’s credibility. The assessment of whether the proviso should be applied depends upon the circumstances of each case, and it would not be appropriate to lay down such an absolute rule …”

59 It is convenient to deal with the question whether there the proviso should apply after all the grounds of appeal have been considered. It is at that stage that the entire circumstances of the case are best considered.

60 The second ground of appeal is that his Honour erred in permitting the crown prosecutor to cross-examine the witness Ian Harris under s 38 of the Evidence Act.

61 Harris was an employee of Austwide. Apparently, he was also a long-standing friend of the appellant and was perceived by the Crown “to be fairly solidly in the defence camp”. Nevertheless, the Crown decided that he should be called as part of its case. In making this decision, the crown prosecutor believed that Harris might give evidence capable of being unfavourable to the Crown in three areas. The first concerned the existence of a management agreement. Harris had stated previously that he had seen a management agreement being executed. Secondly, at the committal proceedings the appellant had produced a copy of a minute dated 25 October 1994 purporting to authorise the entering into by Nambucca of a management agreement with Austwide. The Crown contended that that minute was a forgery. On an earlier occasion, Harris (contrary to the Crown case) had testified that he had seen Hall sign that minute in front of him. The third area concerned the number of invoices sent by Austwide or the appellant to Nambucca. Harrris had testified previously that more than 20 invoices had been sent by Austwide or the appellant to Nambucca, although, according to the prosecutor Harris had given various accounts as to the precise number of invoices that had been sent.

62 The Crown decided to call Harris to testify about other matters and, in the light of his prior evidence in regard to the first two areas I have mentioned, not to question him in chief about them. In regard to the invoices, the Crown decided to ask Harris only about certain specific invoices that had been found and which were tendered in evidence. His evidence in chief proceeded in this way.

63 In cross-examination, Counsel for the appellant asked Harris about the management agreement but he did not testify that he had seen it being executed. Harris said that he had a belief that he had seen such an agreement but could not say when. He was not asked about the minute of 25 October 1994. Thus, the Crown’s decision not to ask Harris any questions in his evidence in chief about these topics was forensically successful.

64 Counsel for the appellant referred to the invoices about which Harris had testified in chief. He asked Harris whether, between the end of September to the end of December 1994, any other invoices were raised by Austwide at the appellant’s direction. Harris replied that somewhere between 20 and 30 invoices were so raised. Later, in his cross-examination, he said that the 20 to 30 invoices had been raised in relation to Nambucca.

65 In the course of re-examination, the crown prosecutor applied to cross-examine Harris under s 38 of the Evidence Act in regard to his evidence about the 20 to 30 invoices. In making the application the prosecutor informed the Court that “the assertion that invoices were raised in greater number is certainly something that he has sworn to previously, although the number of varieties seem to vary”. The prosecutor submitted that the evidence about the invoices was unfavourable to the Crown. He accepted that he had not been taken by surprise by the evidence that Harris had given.

66 Counsel for the appellant, in opposing the application, informed Dodd DCJ that:

“The Crown has been on notice that this was the gentleman’s evidence, that there were 20 to 30 invoices raised in relation to Nambucca”.

67 Dodd DCJ granted leave to the Crown and said:

“I make that ruling notwithstanding the terms of sub-section 4 of s 48. But questioning under this section is to take place before the other parties cross-examine a witness, unless the Court otherwise directs. So I for that purpose am otherwise directing”.

68 The prosecutor proceeded to question Harris and his questions on the issue of the 20 to 30 invoices occupy some eight pages of the transcript. Harris was asked about evidence he had given earlier in the year in the Supreme Court. Harris agreed that he had said that he could not accurately state the number of invoices sent by Austwide to Nambucca from the end of September 1994 to the end of December 1994. He agreed that he had said that he would have sent more than ten and probably more than 20, but he accepted that he had “no real recall”.

69 The 20 to 30 invoices was an important part of the defence case. Dodd DCJ, in the course of his directions to the jury, described the Crown’s approach to these invoices as follows:

“The Crown says to you in essence that apart from those invoices that we actually have in evidence and that were paid, no additional work was done for other invoices, but no other invoices actually exist. They were not seen by Mr Hall, Mr Phillip Hall and that you would accept his evidence on that rather than the evidence of Mr Parkes and that of Mr Harris such as it is, that up to 20 to 30 other invoices did exist for amounts totalling up to $165,000 or so”.

When dealing with the defence case his Honour said:

“It is put for Mr Parkes …. that Mr Parkes and other employees of Austwide Capital had in fact carried out a substantial amount of work for Nambucca Investments Pty Limited and other companies in that group and that whether there was a management agreement formally in existence, a written management agreement formally in existence or not, it would be silly to think that Austwide Capital agreed to do that work or could be expected to do that work for nothing, and that therefore it accords with commonsense that invoices additional to those we actually have in evidence would have been rendered and that Austwide Capital would have been entitled to payment over and above the amounts that had been paid pursuant to the invoices that we actually have in evidence”.

70 There is ample authority that an application to question a witness under s 38 may be allowed where unfavourable evidence is led in cross-examination: it is sufficient to refer to R v Milat (unreported, NSWSC, Hunt CJ at CL, 23 April 1996); R v Pantoja (unreported, NSWCCA, 5 November 1998); R vMansour (unreported, NSWSC, 19 November 1996). There is also ample authority to the effect that s 38 is not limited to circumstances where the unfavourable evidence is unexpected: it is sufficient to refer to R v Esho [2001] NSWCCA 415; R v Fowler [2000] NSWCCA 142.

71 Special considerations, however, may arise in regard to s 38 in circumstances where the applicant well knows that the witness is likely to give unfavourable evidence on a particular issue (but wishes to elicit evidence from the witness on other issues), deliberately refrains from asking about the unfavourable evidence, and when it emerges in cross-examination, makes the application.

72 Judges have disapproved of the use of s 38 as a tactical or forensic device: See R v Mansour (per Levine J), R v Nguyen [2002] NSWSC 59 (per O’Keefe J), R v Kingswell unreported, NSWCCA, 2 September 1998 (per Studdert J, with whom Hidden J agreed); R v Pantoja (per Adams J).

73 This disapproval must be seen against the context of the cautionary warnings in regard to the grant of leave under s 38 that were expressed in R v Fowler [2000] NSWCCA 142 by Wood CJ at CL, who stated at para 120:

“Section 38 of the Evidence Act now permits a party, by leave, to cross-examine a witness who meets any of the criteria identified in sub-section (1). Its exercise is, however, subject to a number of discretionary considerations, so as to prevent its abuse, and is a section that needs to be applied with some care in criminal trials. So it is that before leave is granted, the trial judge must give consideration to the matter specified in s 38(6), s 135 to s 137, and s 192 of the Act”.

74 Section 192(2) of the Evidence Act is relevant in this regard. That section provides that where a court may give any leave, the court must first take into account “the extent to which to do so would be unfair to a party or to a witness”.

75 The antipathy that courts have expressed to allowing s 38 to be used as a forensic device stems from the potential of unfairness to a party or a witness. It is necessary to focus in this regard on what is meant by a forensic device. In this context, in my opinion, it means the deliberate use of s 38 for the purposes of manipulating trial procedure so as to gain an unfair or improper forensic advantage that, but for s 38, would not arise. The qualities of unfairness or impropriety are critical in determining whether an application under s 38 should be refused on this ground.

76 The present question involves a deliberate forensic decision to call a witness (Harris) so as to question him, in chief, on certain issues but to refrain from asking him about three particular issues because of a reasonable fear that he might give unfavourable evidence in regard thereto.

77 The Crown could have asked Harris in chief about the three issues and, having received unfavourable replies, sought leave to cross-examine him under s 38. There were inherent disadvantages to the Crown in this course. Firstly, the Crown would thereby forego the chance that the defence might not ask the witness about the issues (and indeed counsel for the appellant asked no questions in cross-examination in regard to the minute of 24 October 1994). Secondly, were the Crown to regard the witness as inherently unreliable (as was this case), the Crown would be uncertain as to how the witness would reply to questions so asked. Thirdly, unfavourable evidence from the witness elicited by the Crown might have a greater impact on the jury than evidence elicited by the defence in cross-examination. Fourthly, having elicited the evidence, the Crown might not be granted leave under s 38.

78 What would have been the unfairness to the appellant in the procedure postulated in the preceding paragraph? The answer, in the context of the legislation, must be nil; an application under s 38 at the time and on the grounds postulated is the very procedure that the section contemplates as being the most appropriate. This is to be inferred from s 38(4) which provides:

“Questioning under this section is to take place before the other parties cross-examine the witness, unless the Court otherwise directs”.

There is little doubt that, in the particular circumstances, such an application by the Crown, prior to cross-examination by the appellant, would have been granted.

79 The advantages to the Crown in the course it in fact adopted were that it did not have to suffer first three disadvantages to which I have referred, and, in any event, it was granted leave under s 38. So, it had the best of both worlds. It obtained the benefit of the evidence in chief that it wanted, it avoided all the problems of questioning an unreliable witness in chief about areas on which unfavourable evidence might have been given, and it obtained leave to cross-examine when on one of the issues unfavourable evidence was in fact given.

80 What was the unfairness to the appellant in the procedure so adopted? Mr Stratton suggested that it lay in the fact that, had the appellant known that a s 38 application was to be made after Harris’ cross-examination, the appellant would have conducted his case differently. I am not persuaded by this submission. Mr Stratton did not suggest how the case could have been differently run, and I cannot think of anything that Counsel for the appellant might have done differently, in any material way.

81 It may be argued that some unfairness lay in the fact that the Crown, by the procedure it adopted, obtained the best of both worlds, a result far removed from the situation that would have obtained under traditional adversarial processes. But s 38 does have the potential for transforming the traditional procedure; this lies at the very heart of the section. Accordingly, it seems to me, the mere fact that this actually occurred and the Crown was allowed to cross-examine on evidence brought out in cross-examination by the defendant, startling as it may seem to those brought up on more old-fashioned ways, is not enough to constitute unfair manipulation.

82 Then, it must be asked whether that there was abuse of the section, and resulting impropriety or unfairness to the appellant, because the Crown made a deliberate decision not to question Harris about the three issues (and the number of invoices, in particular) and made a deliberate decision to take its chances in applying under s 38 after Harris had been cross-examined.

83 Unfairness to the appellant, as I have previously indicated, has to be judged in the context of the legislation. I see nothing in the section that prohibits, expressly or impliedly, the course that the Crown adopted. What in fact occurred was that the Crown was allowed to cross-examine Harris and water down the effect of the evidence he had given. There was nothing unfair in the cross-examination. The result was that a truer picture of the situation was presented to the jury than would have been the case had the Crown been refused leave to cross-examine. This is the very purpose underlying s 38. It was not contended for the appellant that any kind of unfairness resulted from the procedure adopted, other than that referred to in paragraph 81 above,

84 The decisions taken by the Crown were based on reasonable grounds; that is to say, the situation that the Crown faced in regard to Harris was such that it was reasonable, forensically, for it to wait to see whether Harris would give unfavourable evidence in cross-examination and then to apply under s 38. The point being that it was completely uncertain, as far as the Crown was concerned, whether or not Harris would be asked about the three issues and what replies he would give (although the Crown knew that there was a potential for some or all of the replies to be unfavourable). I see nothing improper in the Crown adopting the procedure that it did.

85 Accordingly, I have come to the conclusion that, although the deliberate decisions taken by the Crown have to be classified as falling into the basket of forensic tactics, they did not lead to the Crown’s application under s 38 being an abuse of the section.

86 Dodd DCJ, in his reasons, made no express reference to s 192(2). His Honour did say:

“Overall I have to make an assessment on the basis of what I think is fair in the circumstances of the case”.

87 A failure to refer explicitly to the matters mentioned in s 192 is not, in itself, an error of law. As Hodgson JA pointed out in R v Reardon [2002] NSWCCA 203, what is required is that due and proper inquiry must be undertaken into the extent to which to grant leave would be unfair to a party or to a witness, and if due and proper inquiry is not so undertaken the leave that is then granted will be in contravention of the section: see Stanoevski v The Queen (2001) 202 CLR 115; R v Hogan [2001] NSWCCA 292; R v Van Le [2002] NSWCCA 186.

88 In arguing that his Honour erred in permitting the crown prosecutor to cross-examine Harris under s 38, the appellant raised no arguments other than those to which I have referred above. Indeed, leaving aside the issue of fairness (or unfairness), in the circumstances of this case, there is nothing in s 192 which argued in any significant way against the grant of leave. For the reasons I have given, I consider that the appellant’s arguments should not be upheld. I therefore conclude that the learned judge made no error of law when granting the Crown leave to cross-examine Harris under s 38.

89 The third ground of appeal is that his Honour erred in making the appellant aware, in the presence of the jury, of the effect of s 128 of the Evidence Act when granting a certificate under that section.

90 The appellant testified that he observed a management agreement between Nambucca and Austwide being executed at a meeting on 29 September 1994. He also testified that that agreement was authorised by the directors in a minute of 25 October 1994. However, such a management agreement was not produced at the trial.

91 During committal proceedings, the appellant produced a document purporting to be a minute of 25 October 1994. At the trial the Crown led unchallenged evidence of a handwriting expert to the effect that the minute was a forgery. The forged minute contained four paragraphs whereas the genuine minute contained three. The fourth paragraph on the forged minute related to the management agreement.

92 When the appellant gave evidence the crown prosecutor said to the Court:

“The person from whom that document [the forged minute] emanated was Mr Parkes at the committal proceedings, and I propose to explore where it came from”.

Counsel for the appellant rose and said “Your Honour, I have an application I would like to make without the jury present”. In the absence of the jury, counsel foreshadowed that he would make an application under s 128(2) for a certificate which, by s 128(7), would have the effect that the evidence given could not be used against the appellant in any proceeding in an Australian court.

93 Dodd DCJ pointed out that the crown prosecutor had not asked the appellant any question that could give rise to the need for such a certificate. The prosecutor said that he proposed to put to the appellant that he, the appellant, had produced the minute for the first time at the committal proceedings, and remarked that he might well ask a question “that might be suggestive of the fact that Mr Parkes either knows or has some knowledge as to how the signature got on there”. He accepted that that “could give rise to a problem”.

94 Dodd DCJ then said:

“That means I will have to give him a warning and to go through the procedure under s 128. If we get there that is what I will do. I am to do that in front of the jury”.

95 His Honour, in making these remarks, had lost sight of s 132 of the Evidence Act which provides:

“If it appears to the Court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the Court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision”.

Neither counsel alerted the judge to s 132.

96 Later, the crown prosecutor began questioning the appellant about who created the forged minute. Dodd DCJ interrupted and said, in the presence of the jury:

“Before you answer that, Mr Parkes, you have the right to object to answer that …. question on the ground the evidence may tend to prove that you have committed an offence against or arising under an Australian law, and if you do object then there are certain procedures that I should go through”.

His Honour went on, in front of the jury, to describe the content of s 128 and to explain its import. He said:

“I am satisfied under s 128 sub-section (5) that the evidence may tend to prove that this witness has committed an offence against or arising under an Australian law. I am satisfied that the evidence does not tend to prove that this witness has committed an offence against or arising under or is liable to a criminal penalty under a law of a foreign country and I am satisfied that the interests of justice require that the witness give the evidence, and therefore I require you, Mr Parkes, to answer the question. However, under s 128 sub-section (6) of the Evidence Act because I so require I am to cause you to be given a certificate under that section in respect of the evidence. And the effect of that certificate is that in any proceeding in an Australian court evidence given by you in respect of that certificate and evidence of any information document or thing obtained as a direct or indirect consequence of you having given that evidence cannot be used against you except in relation to a criminal proceeding in relation to the falsity of the evidence, that is the falsity of any evidence that you may give now”.

97 The crown prosecutor proceeded to question the appellant who denied any knowledge as to the person who had created the forged document and denied that he had himself done so.

98 Plainly, there was no need for the issue of a s 128 certificate to have been raised by counsel for the defence, as the appellant did not intend to give any evidence that disclosed the commission of an offence.

99 In my opinion, the procedure that was adopted contravened s 132 and the question arises whether a miscarriage of justice occurred. I deal with this below.

100 Grounds 4 and 5 are in the following terms:

“4. That the jury were erroneously provided, during their deliberations, with prejudicial documentary material which was not in evidence and which resulted in a possible miscarriage of justice.
5. That his Honour erred in not discharging the jury when it was discovered that the material referred to in ground 4 above had been provided to the jury”.

101 These grounds relate to a folder of documents that were sent to the jury room in error. The folder was discovered while the jury were deliberating but before they had reached their verdict.

102 The folder contained two or three documents which had not been tendered as exhibits in the trial. One was from the appellant to Hall making some comments of an innocuous nature on a list of debenture holders. The second, or possibly also part of the first document was headed “Annual Investment Report – New South Wales 1/7/92 to 30/6/93 – Interest Paid” and contained a list of debenture holders, the amounts of their investment, and lists of due dates, interest rates and the amount of “P.A. interest to be paid” to each. The other document was a fax from the appellant to the National Bank referring to the fact that one debenture holder was awaiting payment of some $37,000 and to the enclosure of a letter from a chartered accountant advising of a few other persons who had money to invest.

Clearly, not being in evidence, these documents should not have been provided to the jury. Again the issue of the proviso in s 6(1) of the Criminal Appeal Act arises.

103 In my opinion grounds of appeal 1, 3 and 4 have been made out and it is now necessary to have regard to the proviso.

104 The essential issue is the strength of the Crown case as to the fraudulent intention of the appellant, relative to the strength of the defence of the claim of right raised by him.

105 The appellant’s claim of right was basically a chimera rather than a thing of any substance.

106 At the heart of the claim lay the allegation that a written management agreement had been arrived at between the appellant and Nambucca. The problem for the appellant was that this written agreement was nowhere to be found. For it to have been lost (as, according to the appellant, it had been) it would had to have been mislaid both by Nambucca and Austwide. The likelihood of the document being lost in two places, under separate control, at the same time, is not strong.

107 The persons who, according to the appellant, signed the management agreement on behalf of Nambucca, or who were present when it was signed, denied that any such agreement had been signed and gave no evidence supporting the proposition that it had been entered into.

108 The only witness who supported the appellant as to the existence of the management agreement was Harris, and he said that he believed that there was a management agreement because it was Austwide’s standard practice to obtain such an agreement and, moreover, Austwide charged Nambucca fees – and the inference to be drawn from that was that there must have been an agreement entitling Nambucca to make those charges. Harris also said that he had believed that he had seen a management agreement but was not able to recall under what circumstances that had occurred. This statement appears to have been an afterthought. All in all, Harris’ evidence in this regard lacks any conviction.

109 The appellant’s testimony that the minute of 25 October 1994 authorised the management agreement of 29 September 1994 is curious as such a minute would have been unnecessary - the agreement had allegedly been entered into a month earlier.

110 Significantly, a photocopy of the minute of 25 October 1994, which was produced by the appellant, was an unchallenged forgery. No explanation was given as to how the appellant came into possession of such a forged document and why he sought to produce it at the committal proceedings.

111 Invoices making up the claim of Austwide or the appellant for $162,500 (which, according to the appellant, formed the basis for his conduct in causing monies aggregating that sum to be transferred from Nambucca and Lawnkin for his own benefit) were not produced. They were said to have been lost. No convincing explanation as to how they were lost was provided.

112 Details of the appellant’s claims totalling $162,500 were sparse indeed. Persuasive evidence that amounts totalling $162,500 were owed to Austwide and Lawnkin, as asserted by the appellant, was not provided.

113 As I have mentioned, the monies totalling $162,500 were transferred at the direction of the appellant. In relation to the cheques, the subject of each of the first three counts, the appellant directed that a notation be placed on the cheque butts and the accounts of Lawnkin regarding each transaction. The notations explained each of the three payments by reference to a “Havendock loan”. Havendock was a company associated with the appellant and had been de-registered. The notations that the appellant directed were entirely inconsistent with the claim of right asserted by him. In regard to the cheque, the subject of the fourth count, the appellant directed that the payment should be recorded in the accounts of Nambucca as a “loan”. The appellant directed that the cheque, the subject of count five, should be noted in the books of Nambucca as a “Havendock loan”. The transfer of $35,000 from Nambucca, the subject of count six, was also described, at the direction of the appellant, as a loan. The reasons given at the time by the appellant for all these payments were inconsistent with his claim of right.

114 The letter written by the appellant on 30 March 1994 which referred to “the Nambucca hoist”, the attempt “to confuse everyone so there were [sic] no documentation …”, the “funding run around” and the “considerable time” that had been spent “confusing” Phillip Hall for the “joint interest” of the appellant and Kearns, speaks for itself.

115 I now turn to the individual grounds of appeal.

116 I have explained why, in my view, Jenkinson’s evidence, did not tend to rebut the Crown’s suggestion that the appellant’s claim to be entitled to fees for consultancy work was a prior fabrication. That is because, according to Jenkinson, the appellant told him that he was expecting fees from Nambuca for consultancy work at the same time as the appellant was making that very claim to Nambucca itself. In my opinion, in the light of the overwhelming Crown case, I do not think any reasonable jury would have regarded Jenkinson’s evidence as creating any reasonable doubt as to the guilt of the appellant.

117 Mr Stratton submitted that, by explaining to the appellant the import of s 128 and issuing a certificate to him under that section in front of the jury, the judge was telling the jury that he believed the appellant to be guilty of forging the minute of 25 October 1994.

118 I have accepted that the procedure adopted by the learned judge contravened s 132 of the Act, but, in my view, the prejudicial effect was minimal and without significance. I do not accept Mr Stratton’s submissions in this respect.

119 Irrespective of anything that the judge might have said to the jury, the issue concerning the minute of 25 October 1994 was clear. It was plain as a pikestaff to everyone that the Crown was contending that the appellant had forged the minute. The unchallenged evidence was that the minute was forged. Had it not been proved that the minute was a forgery, it would have assisted the appellant. The appellant had sought to produce the minute. In these circumstances, the jury must have known that, if the appellant admitted that he had produced the minute or caused it to be produced, he could be guilty of an offence. Nothing the judge said would have been a surprise to the jury.

120 I do not agree with Mr Stratton that, by giving the explanation to the accused in front of the jury, the judge was conveying that he, personally, thought that the appellant was guilty of the forgery. In my view, the jury would have thought that his Honour was merely carrying out a procedure that, by law, he was obliged to perform.

121 It is to be noted that counsel for the appellant made no objection when Dodd DCJ explained in front of the jury what course he was taking under s 128. Nor did he object at any time thereafter during the course of the trial. This serves as a good indication of how his Honour’s conduct was perceived in the atmosphere and context of the trial itself.

122 In all the circumstances I do not think that the error committed by Dodd DCJ, the subject of the third ground of appeal, would have made any material difference to the decision of a reasonable jury.

123 I do not think that the provision to the jury of the documents that had not been admitted in to evidence was material. There was ample evidence at the trial that Nambucca had many debenture holders and had gone into liquidation. The detail contained in the documents in the folder took the matter no further in any material respect. In my opinion, although the documents should not have been provided to the jury, they were innocuous and could not have influenced the jury in any way against the appellant.

124 I have also had regard to the cumulative effect of the errors that I have identified.

125 In the light of the strength of the Crown case, I do not think that individually or cumulatively the errors in question resulted in the appellant losing a chance which was fairly open to him of being acquitted: Mraz (1955) 93 CLR 493 at 514. I consider that the proviso under s 6(1) of the Criminal Appeal Act applies as no miscarriage of justice occurred.

126 In the circumstances I would dismiss the appeal against the conviction.

127 I now turn to the application for leave to appeal against sentence.

128 At the time of sentence the appellant was 49 years old and a widower. He had four children living with him. The children had various problems and required particular care. The appellant had no prior criminal record.

129 Mr Stratton submitted that the offences were committed relatively spontaneously when the appellant was in need of funds for business and personal commitments. Moreover, the events took place within a short time.

130 In reality, the appellant is not able to point to any error in principle on the part of the learned judge. The complaint is that the sentences were manifestly excessive.

131 The offences involved deliberate deceit on the part of the appellant. The deceit was carefully contrived. The appellant was in a position of trust which he abused. I do not regard the amounts involved as insignificant.

132 In my view the sentences, in their totality, were within his Honour’s discretion. I would dismiss the application for leave to appeal against sentence.

133 HULME J: I agree with the orders proposed by Ipp JA and, subject to the following remarks, with His Honour’s Reasons.

134 Although, in relation to ground 1, I agree with Ipp JA that His Honour’s reason for rejecting the evidence of Mr Jenkinson, the subject of this ground was wrong, it has not been shown that the evidence was admissible. The terms of Section 66(1) and (2) of the Evidence Act are:-

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an assertive fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person; or
(b) a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.”

135 Thus to render the evidence of Mr Jenkinson the subject of this ground admissible, at the time the question arose it had to be established that the Appellant, who was the author of the representation, had given evidence or would be called. Not all that was said by counsel during the trial has been recorded but counsel appearing for the Appellant on the appeal conceded that the trial judge was not told at any time relevant to the present issue that the Appellant would be called. Certainly the issues were such that no commitment to call the Appellant would at that time have been made. It follows that at the time His Honour struck out the evidence of Mr Jenkinson, which is the subject of this ground of appeal, that evidence was not admissible.

136 Nor did the situation as to the calling of the Appellant change at any time while Mr Jenkinson was in the witness box. Thus the evidence was not available in cross examination either.

137 One question which arises is whether, by His Honour’s ruling that the evidence was irrelevant and would not be permitted, counsel pressing for the admission of the evidence was, if he wished to raise the matter on appeal, relieved of his obligation to lay the foundation for the evidence’s admissibility. In my view he was not. Within the court system appeals are against orders or decisions, not reasons. While His Honour’s reason – “irrelevance” - for refusing to allow the evidence of Mr Jenkinson was wrong, when regard is had to the material he had before him, his decision was correct.

138 So far as the second ground of appeal is concerned, I would add this. Any practice of requiring a party calling a witness who may wish to cross examine that witness doing so during the witness’ examination in chief has significant disadvantages. It is calculated to require the party calling the witness to adduce, or at least seek to adduce, during the course of evidence in chief all of the witness’ evidence which that party may wish to challenge in cross examination. Experience shows that at least some of this evidence is liable to be utterly worthless, for example, when it is contrary to statements previously signed by the witness. It is calculated to inspire the adducing of evidence which would not otherwise be given – evidence which, as occurred in this case, would not be sought by the opponent and which, if neither party wished it, would only raise an additional and unnecessary issue in the trial. Any such practice is thus also calculated to add unnecessarily to the length of a trial.

139 While Section 38(4), in requiring cross examination by the party calling a witness before opposing counsel cross examine “unless the court otherwise directs”, clearly places an onus on the party calling the witness to satisfy the court that it should “otherwise direct” and the court will no doubt be astute to see no unfairness is created if such cross examination is delayed, it seems to me that the efficiency of the trial process and fairness all around will often make the onus one which it is not difficult to discharge.

140 In this case, prior to the witness being called, the Crown had in fact adverted to the possibility that, depending on the course the defence took, an application might be made under Section 38 and, while I do not suggest that such advance notification cast the onus of showing the court should not “otherwise direct” on the accused, it did provide the defence with an early opportunity of raising any possibility of unfairness. No such possibility was raised at that time.

141 BELL J: I agree with Ipp JA.

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Last Modified: 02/19/2003