R v Reginald John Rich and Craig Weston Hynes Nos. Sccrm-96-293, Sccrm-96-301, Sccrm-97-79 Judgment No. 6153 Number of Pages 74 Criminal Law Property Offences Misappropriation (1997) 68 Sasr 390

[1997] SASC 6153

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, WILLIAMS AND BLEBY JJ

Criminal law - particular offences - property offences - misappropriation - fraudulent conversion - appeals by two company directors against their convictions for fraudulent conversion in the course of running an investment advice and management business - whether trust funds dishonestly applied contrary to clients' instructions - one appellant said to have signed cheques on trust account knowing that the other appellant might misapply them - what had to be proved against each appellant - identifying the alleged acts of conversion - to what extent, in the case of the alleged accessory, the Crown had to prove the 'essential facts' of any crime committed by co-accused - whether Crown entitled to prove a general deficiency with respect to particular payments into the trust account - trial Judge's use of tables in explaining prosecution case to jury - whether the summing up was fair and adequate - whether the verdicts were unsafe. - Fraudulent conversion - whether sentence excessive. - Dietrich application rejected by trial Judge - whether decision justifiable - whether trial of unrepresented appellant was unfair - whether trial Judge discharged his obligation to inform and advise the appellant during the trial. Summary Procedure Act 1953 ; Criminal Law Consolidation Act 1935ss184, 267, 269 (repealed), referred to. Dietrich v R
(1992) 177 CLR 292; R v Hansford (1974) 8 SASR 164; McPherson v R (1981) 147 CLR 512; R v Zorad (1990) 19 NSWLR 91; Webb & Hay v R (1994) 181 CLR 41; R v Goodall (1975) 11 SASR 94, applied. Giorgianni v R (1985) 156 CLR 473, distinguished. Craig v South Australia (1995) 184 CLR 163; Karounas v R (1995) 180 LSJS 48; Barton v R (1980) 147 CLR 75; R v Hutchinson (1993) 171 LSJS 364; McKenzie v McKenzie [1971] P 33; R v Balls (1871) LR 2 CCR 328; R v Tomlin [1954] 2 QB 274; R v Grubb [1915] 2 KB 683; R v Cuffin (1922) 27 Cox CC 293; Stephens v R (1978) 139 CLR 315; R v Aylen (1987) 49 SASR 254; R v J (1987) 9 NSWLR 615; R v Bainbridge [1960] 1 QB 129, discussed.

ADELAIDE, 21-23 April 1997 (hearing), 29 May 1997 (decision)

#DATE 29:5:1997

Appellant Reginald John Rich:

Counsel: Mrs M E Shaw Qc with her Mr D Agresta

Solicitors: Donal Craig

Appellant Craig Weston Hynes:

Counsel: Mr G Mancini

Solicitors: George Mancini & Co.

Respondent:

Counsel: Mr P R Brebner

Solicitors: DPP (SA)

Order:

COX J

1. The background to these appeals is set out in the reasons of Bleby J which I have had the advantage of reading. In brief, the appellants were directors of a small business offering investment advice and the placement of investment moneys. They would receive in the course of business moneys from clients that were earmarked for specific investments, and on occasions they would receive a cheque from a financial institution on behalf of a client by way of redemption of the client's investment. The appellant Hynes was the active director in the investment business but cheques on the trust account had to be signed by both appellants. They were tried on an information that charged them with multiple counts of fraudulent conversion of clients' funds. The jury found them guilty of most of the charges which they respectively faced. The learned Judge sent Hynes to prison for eight years with a non-parole period of five years, and Rich for just under five and a half years with a non-parole period of a little over three years. Both appeal against their convictions and Hynes also appeals against his sentence.

Hynes's appeal against conviction

2. I start with the appeal of the appellant Hynes. His notice of appeal originally contained twenty-six grounds of appeal but he has since added seventeen more grounds. It is convenient to start with those that relate to his second and third Dietrich applications and to the question whether he was deprived of a fair trial by reason of his lack of legal representation.

The Dietrich applications

3. Hynes was arrested on 2 November 1990 and charged with two offences of fraudulent conversion and one of false pretences. These and other charges subsequently laid related to his activities as an investment adviser between 1988 and 1990. He was committed for trial in November 1991 and in due course a trial date was set for October 1992. However, the trial date was vacated soon afterwards to enable the Crown to join the appellant Rich in the proceedings. Later a date for the trial of the two appellants was fixed for November 1993 but the trial was postponed pending a decision by Judge Boylan of the District Court on Hynes's first Dietrich application. This was resolved in the appellant's favour on 24 January 1994 when Judge Boylan granted an interim stay effective to 26 April 1994. In October 1995 Judge Lee heard an application by Hynes for an order for a permanent stay. His Honour refused that application and attempts to have that decision overturned in this Court by way of judicial review were unsuccessful. On 6 May 1996 the two appellants appeared before Judge Lee on certain pre-trial proceedings and in the course of them Hynes made a third Dietrich application which was refused. On May 14 a jury was empanelled and the trial began. The appellant Rich was represented by counsel but the appellant Hynes was not. On July 13 the jury found each appellant guilty on some counts and not guilty on others.

4. By the time the trial began there were thirty-four counts of fraudulent conversion on the information, seventeen against Hynes alone and seventeen against Hynes and Rich jointly. While the frauds alleged against the two men followed a broad pattern and were of a relatively simple kind, the Crown evidence was voluminous and, as could be foreseen, there were numerous points of law and procedure that arose in the course of the trial and important tactical decisions to be made by each appellant. The charges were serious in the sense in which that term is used in Dietrich v The Queen (1992) 177 CLR
292. Accordingly it was a case that called for the services of counsel. Hynes's trial was therefore not a fair one, and his convictions are liable to be quashed, unless Judge Lee's refusal to grant Hynes the permanent stay he was seeking was justifiable. The question, then, is whether at the time Judge Lee heard the second and third Dietrich applications, Hynes answered the description used by the majority in Dietrich - "an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation."

5. Hynes's various attempts to obtain public funding for his Dietrich applications and for the trial itself are described briefly in the reasons for judgment of Judge Boylan and Judge Lee. The first Dietrich application appears to have concentrated upon the appellant's interest in a company called Anglia Pty Ltd. Judge Boylan found that the appellant was not at fault in failing to realize that asset before the hearing and he granted an interim stay in order to enable the appellant to negotiate a sale. By the time the matter came before Judge Lee, twenty months later, the appellant had reached an agreement for the sale of his Anglia interest for $15 000, by way of $2 000 at settlement and monthly instalments of $500 each. It must be said that from a practical point of view the appellant was not in a strong bargaining position. In fact no payments from the purchaser had been received up to the time Judge Lee heard the application but, in any event, the appellant had arranged to apply the Anglia payments wholly to legal costs already incurred by him.

6. The issues raised in the October 1995 hearing before Judge Lee covered a much wider field. The appellant was living in a de facto relationship with one Sandra Rowntree who had assets of her own. It appears that it was the policy of the Legal Services Commission to treat the income and assets of an applicant's de jure or de facto spouse as the income and assets of the applicant, and on that basis they had determined in this case that the appellant could afford to pay a contribution of $37 638 towards his legal costs. It was agreed by counsel that, for a trial estimated to run for six to eight weeks, the likely cost of the appellant's legal representation would be in the range $27 750 to $37 500. The learned Judge found that the appellant was indigent in the sense of lacking the means of funding his defence, so the question was whether he could satisfy the Judge that his failure to obtain legal representation was without fault on his part. While his Honour noted the stand taken by the Legal Services Commission and the reasons it gave, it is plain that his Honour made up his own mind on the issue of fault.

7. Both the appellant and Ms Rowntree gave evidence before Judge Lee. The appellant had obtained work in December 1990 with a hardware store at $444 net per week and by October 1995 his wages had increased to a net $512 a week. Between November 1990 and November 1992 the appellant also had an after hours job which he used to pay off a bank overdraft of $2 300. He was living at a house at Golden Grove that was in the joint names of Ms Rowntree and himself. The land had been purchased in June 1992, about the time when the first trial date was set, and the contract for the building of the house was signed in June 1994, after the interim stay granted by Judge Boylan had expired. Prior to moving into the completed house the couple shared a rental unit for which Ms Rowntree paid $93 a week and received from the appellant $118 board. Although the appellant had not made any contribution to the cost of buying the land or building the house, he paid Ms Rowntree $130 per week for what was called rent or board as well as paying half of the water rates and electricity and other household expenses. Thus the appellant would appear to have added significantly to his living expenses at the time when he was facing prosecution. The appellant in his evidence assessed his current expenses at $301 a week including the $130 for board, leaving a disposable surplus on his own figures of $200 a week. He assessed the value of his assets, comprising superannuation, motor vehicle, furniture, tools, golf clubs and personal effects, but excluding his interest in Anglia, at $12 400. One of the investors whom he was alleged to have defrauded had obtained a judgment against him for $78 553 and he had other liabilities totalling $21 500. However, he had heard nothing from any of those creditors since November 1992. He had met the cost of his stay application before Judge Boylan ($5 725) with the help of a loan of $2 500 from Ms Rowntree. He had since repaid that loan.

8. Ms Rowntree described her relationship with the appellant extending over ten years. Her net earnings were $413 a week. The house at Golden Grove was subject to a mortgage. She and the appellant had discussed marriage but that was out of the question until after the charges against him had been resolved. She said that the applicant had never asked her "straight out, directly" for money to fund his defence wholly or in part but, if she were asked, she would decline. She was not prepared to run the risk of spending money in that way and have the appellant go to gaol at the end of it and be unable to repay her. She did not have very much faith in "the system". The appellant's evidence was that Ms Rowntree had made it very clear to him that she was not going to fund him in any way. He was asked about his long-standing creditors and he explained that it was his practice to deal with his income in cash, "to basically keep it away from perhaps the wolves that might be calling" - successfully, it seems, because they had evidently long given up pursuing him. Certainly they had not intervened to prevent him from using a loan from Ms Rowntree or his own assets to fund in part his earlier legal costs.

9. Judge Lee found that the appellant and Ms Rowntree both intended that their relationship should continue indefinitely, whether de facto or in marriage. He noted that, since legal aid was withdrawn in November 1992, the appellant had made no attempt to save and secure funds for his trial, that is, apart from his application to the Commission. He could have saved between $100 and $200 a week from his earnings with the hardware firm. At an average of $150 a week from November 1992, that would have yielded about $22 500. He could have earned a figure well in excess of $3 000 in additional casual work even if that meant giving up golf for three years. Notwithstanding Ms Rowntree's evidence to the contrary, the learned Judge found that "had she been urged by the applicant to assist him in meeting a demonstrable and pressing need for representation to secure a fair trial of serious charges, I expect that, given the close and enduring nature of her relationship with the applicant, she would have agreed." He found that the appellant could have obtained a gift or loan from Ms Rowntree or, at the very least, a reduction in his weekly contribution to housing and living expenses, and he noted that as little as $50 a week obtained in this way from November 1992 would have yielded about $7 500. Taking all these findings into account the learned Judge held that "the appellant had failed to satisfy him, on the balance of probabilities, that his failure to obtain legal representation was and is without relevant fault on his part." His Honour continued - "This result might come as no surprise to the casual observer. The applicant is in steady employment and in receipt of net wages of $512 per week. He has long standing debts, but his creditors have made no contact with him for three years and more. Even after housing and living costs, he has a present surplus of $200 per week. He shares a modern three bedroom suburban house with his defacto spouse. He owns furniture in the house. He owns and drives a car. He is a member of a golf club to which he pays annual fees of $500. His defacto spouse is also in steady employment. Her net wages are $413. Their joint net income is $925 per week. Regardless of whether the decision to increase housing costs by moving from the flat at Walkerville to the house at Golden Grove was shared, it was taken at the very least with his approval and in the full knowledge of both of them that he was in urgent need of funds for his defence." 10. Accordingly, the appellant's application for a permanent stay was dismissed.

11. The learned Judge did not adopt the Legal Services Commission's policy of treating the assets of an applicant's spouse as being generally available to fund the applicant's legal costs. Rather, he has regarded Ms Rowntree as a person who, by reason of the closeness of her relationship with the appellant, would have been willing to take a lesser amount for board, or to give or lend him the relatively modest sum of $7 500, to help fund his trial if he urged her to do so. Of course, that finding may not have accorded with what Ms Rowntree said in the witness box but the learned Judge was not obliged to take her evidence on this subject at face value. It is obvious that a person making a Dietrich application may not always be truthful about his financial position including his ability to obtain funds on credit, and it is far from inconceivable that an applicant's family or friends who might have been expected to come to his assistance may find it expedient to represent themselves to the court as being less willing to assist the applicant financially than they really are. His Honour was justified in looking behind the evidence of the witnesses and making his own appraisal of Ms Rowntree's likely response had she been pressed firmly but not unreasonably to assist the appellant. The case does not raise any social or moral issue of the Can a Millionaire Father be Compelled to Assist his Indigent Son? kind. If the appellant could reasonably raise money from a bank to fund his trial he was obliged to do so and, if he could reasonably raise funds by way of gift or loan or a reduction in board from Ms Rowntree, he was similarly obliged to do so. The learned Judge had the very considerable advantage of seeing the appellant and Ms Rowntree in the witness box and forming a judgment about their character and candour, and I think we should be slow to interfere with his findings on this subject. They are not inconsistent, of course, with the appellant's subsequently going to trial without a lawyer. There could be a number of explanations for that. The contribution that the learned Judge estimated that Ms Rowntree would have been willing to make in one way or another would not have been enough to meet the whole of the expected legal costs, and by that time the appellant may well have been unable to raise the rest of the money from any other source. The trial was then thought to be imminent. Another possibility is that the appellant decided that, whether he was represented at the trial or not, his prospects of being acquitted were poor and it was better not to spend Ms Rowntree's funds on a fruitless exercise but instead to save her money and at the same time preserve a possible ground of appeal. I see no reason to question the soundness of the learned Judge's findings on the subject of relevant fault on the part of the appellant.

12. Mr Mancini submitted that the learned Judge was wrong in taking into account the appellant's ability to earn and save and borrow in the period prior to October 1995. Judge Boylan had had no criticism or advice to offer on that subject when he decided the first Dietrich application in January 1994 and the appellant was entitled to order his financial affairs thereafter in the belief that, if he could not obtain public funding for his costs, he would be entitled to have the trial stayed. He was not obliged to save or to give up his golf or to look for additional work. It was also argued, in any case, that Dietrich looks only to the present. It simply applies a snapshot test.

13. I do not accept these submissions. If an applicant were to give away substantial assets irresponsibly after his arrest but before he made a Dietrich application on the ground of his indigence, his inability to obtain legal representation because of indigence would in all likelihood be ascribed to a relevant fault on his part. Certainly the Judge hearing the matter would have to look at all the circumstances in the broad manner required by Craig v South Australia (1995) 184 CLR 163, but that is not to say that past improvidence or inactivity is irrelevant. The appellant made his first application for legal aid in October 1990, before he was arrested. He was obliged, in my view, to be alert thereafter to every reasonable opportunity he had of funding his trial wholly or in part. It was for him to take the initiative and not simply to wait until the Court told him what he should do. A Dietrich application is not an application for advice and directions. As I have said, the hearing before Judge Boylan concentrated on the Anglia asset and no findings were made about the appellant's ability to earn. Besides, I infer from Judge Lee's findings that the appellant's net weekly income, including his ability to save, was increasing up to the time of the second Dietrich application. Judge Lee's findings in this and other respects conformed with the requirements of Dietrich and Craig. It is unrealistic to say that any surplus income or assets the appellant may have been able to acquire in the relevant period would have been taken by his creditors. They had not troubled him for years. He was insolvent, but he was not bankrupt. (See Dietrich transcript, p72.) Any money provided by Ms Rowntree by way of gift could have been paid by her directly to the appellant's solicitors. At any rate, he had repaid a loan from her in the past, so that method of assistance would not appear to have raised a practical problem for them. Given the evidence on the subject, a reduction in the appellant's board would not have presented any difficulty of this sort at all. In my opinion, inasmuch as the appellant went to trial without a lawyer, he could fairly be said to have been the author of his own misfortune. Cf. Karounas v R (1995) 180 LSJS 48.

14. Mr Mancini criticized the learned Judge for not adjourning the application, following his adverse findings, and putting off the trial so that the appellant could at least demonstrate his good faith by belatedly saving something from his weekly earnings, and perhaps getting casual work as well, and then going to the Legal Services Commission again to see whether, in those changed circumstances, they would assist him. So far as I can see the Judge was not in fact asked at that stage to delay the trial on this ground, but it happened that there was an interval of six months or so before the trial began and there is no evidence that the appellant did anything by way of funding self-help in that period. Of course, the learned Judge is unlikely to have been sympathetic to any further application to postpone the trial. The offences were alleged to have taken place between 1988 and 1990, and when the second Dietrich application was heard it was already five years since the appellant's arrest.

15. For these reasons I would reject the attack on Judge Lee's Dietrich findings in October 1995 and his refusal to stay the proceedings again.

16. On May 6, the first day of the pre-trial sittings, the appellant renewed his application for a stay of proceedings. Evidently he had made another application to the Legal Services Commission and been refused assistance. He submitted, with the help of a statement prepared by his former counsel, that he was not competent to prepare and conduct his defence properly. He asked the learned Judge to reconsider his previous decision "and either grant a stay and excuse me from this trial or, at least, grant an interim stay to allow me enough time to save money for a professional representation and therefore a fair trial." Later that day the Judge ruled on the application. He was not persuaded that his original decision was wrong or that any subsequent change of financial circumstances, disclosed by the documents he had been given, should lead to any different result. He refused the application for a permanent stay. He drew the appellant's attention to a recent amendment of the Criminal Law Consolidation Act that gave the trial judge the discretion to refer the correctness of a Dietrich decision to the Supreme Court and the appellant applied accordingly. The application was opposed by the Crown and refused by the Judge. If the learned Judge made an order dealing expressly with the alternative application for an interim stay we have not been referred to it, but it is implicit in his Honour's treatment of the matter that he refused that application also.

17. Mr Mancini's outline and oral submissions concentrated on the 1995 Dietrich decision rather than the decision made on the eve of the trial. If the earlier application was without merit so, on the same material as supplemented on May 6, was the second. In my opinion, it has not been shown that the learned Judge erred in refusing to grant a stay on May 6.

18. I have said that this was the sort of trial in which any defendant would reasonably require the assistance of counsel. There was nothing exceptional about the circumstances of this particular case in that respect. There is therefore a very real sense in which it may be said that, by reason of the lack of representation of the appellant, he did not have a fair trial. However, Dietrich recognizes that in certain circumstances a defendant may have to endure the disadvantage of a trial that is not a fair one and yet not be able, even though he is convicted, to submit afterwards on appeal that because he was unable to obtain legal representation there was a miscarriage of justice. In my opinion, that was the situation here. It was the appellant's own fault, in the sense in which that term is used in Dietrich and Craig, that he went to trial without a lawyer and he cannot now complain about it. He may or may not have an argument that his trial was not fair in other respects, but he cannot be heard to say that it was not fair because he was unrepresented. A defendant in such a case simply has to do the best he can with such assistance as the trial Judge can be expected to give him.

19. I should say that many of the particular criticisms of Judge Lee's reasons that are set out in ground 26 of Hynes's notice of appeal were not the subject of written or oral argument on the appeal and do not appear to have any substance. I have considered them all but there is no need to deal with them one by one.

20. I would reject grounds (1) and (26) of Hynes's appeal.

The trial procedures

21. I turn to a number of Hynes's grounds of appeal that complain of the trial or pre-trial procedures in certain specified respects. However, I should say something first about ground A which was added to the notice of appeal on the first day of the appeal hearing.

22. Bleby J's account of the history of the proceedings shows that the number of fraudulent conversion charges laid against Hynes increased from two in November 1990 to thirty-four in November 1993. The appellant was committed in the Magistrates Court on seven counts of fraudulent conversion; the rest were added in the District Court by way of ex officio informations. (A point was taken on the appeal that the additional charges were not contained in a document headed "Ex Officio Information" but nothing turns on that.) The Crown has the power to lay additional charges in this way and it happens not uncommonly, but the procedure was irregular, Mr Mancini said, and worked to the prejudice of the appellant. We were referred to the High Court's decision in Barton v The Queen (1980) 147 CLR 75.

23. There is no doubt about the benefit of committal proceedings under the Jervis's Act system that was generally in force throughout Australia in 1980 when Barton was decided. However, the right of a defendant to test the prosecution evidence before the committing Magistrate has been very greatly circumscribed since then by the adoption of the paper committal. When Hynes was committed for trial on seven counts of fraudulent conversion in November 1991, a defendant in South Australia still had the right to require prosecution witnesses to attend for cross-examination, but it is noteworthy that, although the appellant was represented by counsel at that hearing, he did not seek to cross-examine witnesses. Additional charges were added from time to time to the District Court information, or fresh informations laid, until an information containing thirty-six counts against both appellants was presented in November 1993. This, I presume, is basically the information on which the appellants were presented for trial in May 1996. Meanwhile, in July 1992, the Summary Procedure Act had been amended to permit a defendant to examine an intended prosecution witness only when the court is satisfied that there are special reasons for doing so. The result is that trials usually take place now without the benefit of a preliminary questioning of such witnesses. Sometimes, when an additional prosecution witness is notified and statements supplied between committal and trial, the trial judge will allow the accused to cross-examine the witness on a voir dire. No application to that end appears to have been made to the trial Judge in this case, but as the appellant was not represented that can hardly be held against him. Mr Brebner's explanation for what happened is that the police investigation that led to the arrest of the appellant Rich threw up some more complainants. The additional charges, he said, were identical in type to those that had already been laid. Because the Crown was not sure precisely what material Hynes had in his possession, given the time that had elapsed since his committal, they provided him with a copy of prosecuting counsel's brief and draft opening ten days before the jury were empanelled, and we were told that no complaint was made to the trial Judge about the late provision of any material. I think that probably is significant, even though Hynes was unrepresented at the trial, because the trial Judge showed a constant willingness, throughout the pre-trial week and afterwards, to hear any complaints or requests that Hynes had about documents or any other procedural feature of the trial. It is not obvious that, in circumstances such as these, a trial Judge would allow a voir dire examination of additional Crown witnesses. Most important, the appellant was represented on the hearing of the appeal and we were not furnished with any evidence or information showing that the appellant was prejudiced in any relevant sense by the laying of the additional counts or the related procedures. Ground A is not made out.

24. At the time Hynes obtained leave to appeal he took the opportunity of amending his notice of appeal by picking up, in substantially the same form, so many of Rich's grounds of appeal as could be applied to his own case. Hynes numbered his additional grounds 1 to 15. In dealing with Hynes's additional procedural grounds I shall be keeping an eye on Rich's notice of appeal as well.

25. Ground (23) reads - "The learned trial Judge erred in refusing to disqualify himself having heard and determined the appellant's applications for a stay of proceedings." 26. The point made in the appellant's written outline is that the Judge should have disqualified himself because he had given a judgment adverse to the appellant in the October 1995 Dietrich application. It does not appear whether the learned Judge was in fact asked to disqualify himself but I do not think that matters. The reason that is said to compel disqualification in this case is, without more, inadequate. See R v Hutchinson (1993) 171 LSJS 364; Karounas. I would reject this ground of appeal.

Ground 9.1.

27. Both appellants complain of the trial Judge's refusal to order separate trials. The submission can be dealt with very briefly. There was everything to be said for a joint trial in this case and very little to be said against it. The circumstance that Hynes was unrepresented and that a number of the counts related solely to him was not an adequate reason for ordering separate trials. It is impossible to say that the learned Judge's discretion in this respect miscarried. This ground of appeal fails.

28. Ground 1 complains that the learned trial Judge erred in allowing the prosecution to amend the information by deleting the words "the said cheque or" from each count. Notice of the Crown's application to amend was given on May 7 and the amendment was allowed over a defence objection on May 8, a few days before the trial began.

29. The counts typically alleged that Hynes, or Hynes and Rich, having received a specified cheque on account of a particular client, "fraudulently converted the said cheque, or the proceeds thereof, to his own use or benefit." The amendment followed legal argument about the nature of the charges. The Crown was relying on witnesses who would say that they handed a cheque to Hynes who paid it into the company's trust account and later wrote a cheque or cheques that had the effect of disbursing some or all of the proceeds of the client's cheque in a way that did not conform with the client's instructions. Evidently it was suggested that the information might be bad for duplicity or uncertainty in so far as it relied upon an alleged conversion of the client's cheque or upon a conversion of the cheque proceeds in the company's trust account.

30. There was power to make the amendment. It did not mark any change in the factual case upon which the charges were based. It is plain from s184 of the Criminal Law Consolidation Act that a defendant may be charged with having been entrusted with particular property and then fraudulently converting the proceeds of it. The amendment made no significant change to the Crown's case against Rich of accessorial liability (which was the way the case against him was left to the jury); his argument of special prejudice is untenable. It seems that the only effect of the amendment is that there was one small feature of the Crown's original allegations that no-one had to worry about any more. It caused no prejudice to anyone. This ground of appeal fails.

31. It is convenient to notice here that ground 2 of the appellant Rich's notice of appeal says that the learned trial Judge erred in allowing the information to be amended to add at the end the words "or the benefit of another". Ground (11) of Hynes's appeal alleges a miscarriage by the late introduction of that additional element. Although the information was never amended, and technically Rich's ground of appeal has no substance, the learned trial Judge instructed the jury that the prosecution had to prove that Hynes applied the proceeds of the cheque for a purpose different from the purpose for which it was entrusted to him, that is, "he applied the proceeds for his own use or benefit or for the use or benefit of some other person". The trial Judge was following the language of the section but not necessarily that of the information.

32. Conversion of property in this context means the doing of a fraudulent act "in denial of the right of the owner of that property or of the person entitled to its immediate possession" (R v Hansford (1974) 8 SASR 164 per Bray CJ at 173). It is practically inevitable that the crime will be committed for the benefit of someone, usually but not always the perpetrator. The purpose of the words in s184, "to his own use or benefit, or the use or benefit of any other person," is to make it plain that it does not matter on whom the use or benefit is conferred; the alternatives nominated in the section exhaust the possible categories of beneficiaries. The primary function of selecting one or other of the alternatives when drafting an information is to give the defendant some particulars of what is being alleged against him. In some cases, however, it may be plain that someone benefited from the crime but the prosecutor is unable to identify the beneficiary. In that event it will be open to him to use both alternatives in the information. That, indeed, is the way the information on which the appellant Hynes was committed for trial was drafted. For some reason the latter alternative expression was omitted from the District Court information. However, I do not think it matters. If one takes first the word, "benefit", giving it its usual meaning, it is clear that either Empire Mines or the appellant's company benefited in each case, the latter's benefit usually taking the form of using the client's funds to meet the company's trading obligations. Thus the evidence that must have been accepted by the jury showed that both appellants benefited, directly or indirectly, from any moneys that were fraudulently converted. Had the Judge used only the words in the information, the verdicts must have been the same. On this footing, then, there was at the most a disconformity between the information and the law as explained by the learned Judge, but it could not possibly have led to any miscarriage of justice and it would be a proper occasion for applying the proviso. However, the word "use" in the information would appear to refer to the purpose or object of a defendant and that is a wider notion than "benefit". If the fraudulent act of conversion is done to serve the defendant's ends in any way at all, it will be done to his own "use" - indeed, to his own use or benefit, if one allows the meaning of the second word to be coloured by the first. So regarded, the first part of the composite statutory expression was sufficient to cover the factual circumstances of this case, even if an appellant was not shown in a particular instance to have received a tangible benefit from the act of conversion in question. It is also possible to say generally that any act inconsistent with the rights of the true owner of the property in question will constitute a "use" of the property on the part of the person effecting the conversion. Looked at in either of these ways, the additional words used by the learned Judge in directing the jury added nothing to the formula set out in the information. The Crown case in this respect was plain throughout the trial, and no prejudice to the appellants resulted from the apparent narrowness of the drafting or expansiveness of the jury direction. These grounds therefore fail.

33. Grounds (2), (3) and (6) read - "(2.) The learned trial Judge failed to take all reasonable steps to inform the appellant of his rights and to explain relevant procedures for the purposes of the appellant's preparation for the trial and for the purposes of the trial.

(3.) The learned trial Judge failed to assist or to adequately assist the appellant in the proper presentation of his case and so as to clarify the issues and so as to explain the nature of questions which could be asked in cross-examination by the appellant.

(6.) The trial miscarried by virtue of the inability of the appellant to :

(6.1) cross-examine or adequately cross-examine witnesses.

(6.2) call witnesses.

(6.3) prepare his defence.

(6.4) consider and analyse subpoenaed material." 34. At this stage it is necessary to say something about the way the appellant's appeal was conducted.

35. The jury returned its verdicts on 3 July 1996. The appellant Hynes filed his notice of appeal on 29 July 1996. Leave to appeal was granted, on the appellant's amended notice, on 25 November 1996. By that time Rich had appealed as well and the two appeals were, in due course, listed for hearing in the Court of Criminal Appeal on 21 April 1997. The Chief Justice gave certain procedural directions to facilitate the orderly hearing of the appeals, including a direction that the parties file written submissions. On March 5 the appellant Hynes's solicitor filed his client's submission. Evidently the appellant had been refused legal assistance for the appeal and Mr Mancini was in a position to give him only limited help. The filed document consists of one hundred and seventy-five closely typed pages, each headed "Personal Difficulties", dealing with the appellant's pre-trial position from October 1995 and then purporting to describe in detail, one by one, the thirty hearing days of the trial from the point of view of the appellant. Each day is dealt with in the manner of a personal diary of the appellant's trial experiences and sensations, starting with his getting out of bed in the morning and ending with his retirement at night. He describes at length the day's trial procedures and the difficulties that he had in understanding them. The document was not sworn. At a final directions hearing on April 17, I raised with Mr Mancini the question whether the Personal Difficulties document was in presentable or relevant form and asked him to consider the matter. At the hearing of the appeal Mr Mancini handed up a proposed form of affidavit by his client that referred to the Personal Difficulties document and said about it - "4. I have produced the exhibited materials to set out the events, observations, consequences, perceptions experienced by me prior to and in particular during the trial.

5. I have prepared the exhibited materials to record that I was not capable of adequately conducting any defence, participating in the trial, understanding the legal and other issues and prejudiced thereby because I did not have legal representation.

6. I crave leave to adopt the contents of the exhibited materials and incorporate them into this my affidavit.

7. The contents of the exhibited materials are true and correct and of my own knowledge." 36. We were told that Mr Hynes would swear the affidavit and this, in fact, was done overnight. We received the affidavit subject to the objection of Mr Brebner for the Crown. He complained that the exhibited document contained "an enormous number of untested assertions" by Hynes and that "the possibility of exaggeration to suit his own purposes must be taken into account." He applied to cross-examine the appellant on his affidavit. We asked Mr Mancini to obtain his client's instructions as to whether he would submit to cross-examination on the affidavit including the Personal Difficulties document in so far as it asserted facts, relating in any way to the trial, that went beyond the official transcript. Later, Mr Mancini told the Court that he had taken instructions and his client did not present himself for cross-examination. He had explained to his client that if he did not present himself for cross-examination it was unlikely that the affidavit would be received. In the opinion of the Court the Crown's application to cross-examine was a proper one and it was difficult to see what reliance we could place on the appellant's document in its untested state. Accordingly, in so far as it sought to prove facts, such as the events of the trial and the appellant's reactions and responses and comprehension and other states of mind during the trial, the affidavit was rejected.

37. That means that for an understanding of these grounds of appeal the Court must rely on the transcript, which runs to one hundred and ninety pages for the pre-trial hearing and about two thousand five hundred pages for the trial proper, and counsel's submissions on the appeal. The transcript shows that the trial Judge sat on this matter on six days, early in May 1996, before the trial began with the empanelment of the jury on May 14. A large part of the first one hundred pages of the voir dire transcript records the trial Judge's instruction to the appellant Hynes about various key aspects of the forthcoming trial in so far as they affected him - the selection of the jury and the right of challenge, the prosecutor's opening (a copy of which had already been supplied to the appellants), the calling of the prosecution witnesses with a right to object to questions and the right to cross-examine with a word about the rule in Browne v Dunn, the right to submit that the Crown had failed to make out a case to answer, the appellant's options with respect to his defence, the question of an accused putting his character in issue (though in fact the appellant did not have a criminal record), the nature and order of the final addresses, and the Judge's summing up. The Judge told the appellant about the way to have access to documents and to compel their production. Then a Sheriff's officer explained the procedure about the availability of jury lists. It was hardly to be expected that the appellant would be able to absorb all that information completely, but he was invited to ask for clarification of anything that he did not understand and the Judge told him that he would raise other procedural matters with him during the course of the trial. A random dip into the trial transcript provides many examples of the Judge's raising particular procedural topics with the appellant as the evidence proceeded and explaining them to him and also asking the appellant at the start of a day whether there was any particular matter that he needed to raise in the absence of the jury. See, for example, his statement to the appellant before he started to cross-examine his co-accused - "Mr Hynes, I have said on previous occasions but I repeat, in the event that you need any assistance from me I am prepared to offer that assistance and, if necessary, to allow you gaps in the cross-examination for the purposes of considering your position and gathering your thoughts. All you need to do is ask and assistance will be provided." (p1937) 38. While I have not made a close examination of the transcript for this purpose, the indications are that the learned Judge was meticulous and within reasonable limits thorough in his explanation to the appellant of what was happening and what he could expect to happen and from time to time what his options were. There is confirmation for this in the appellant's own outline of argument. Understandably the appellant complains that his ability to absorb the trial Judge's advice was hampered by the nature of the trial and the volume of material and information that the appellant had to consider. However, those were general disadvantages that resulted from his being unrepresented, not from any error or deficiency in the learned Judge's attempts to inform and assist the appellant.

39. I should say that the transcript also shows that the appellant Hynes cross-examined prosecution witnesses, sometimes at considerable length, and his questions appear to have been competently put and purposeful. The same can be said of his lengthy cross-examination of his co-accused. From time to time the Judge would explain a prosecution objection or suggest a form of question or offer a word of advice.

40. While the appellant's disadvantage in not having a lawyer was considerable, it was not perhaps as great as the number of witnesses and the size of the transcript might suggest. First, the appellant was an investment adviser and before that he had worked in a bank, so he was at home with commercial documents. Secondly, the evidence of the investors, as I understand it, tended to follow a pattern. Typically, they said that they handed a cheque to the appellant with particular instructions and that they learned afterwards that those instructions were not obeyed. In other cases it was said that the appellant would receive from a financial institution a cheque representing the proceeds of a redeemed investment, but that the appellant failed to account for those proceeds to the investor. (I may say that I shall not always, when discussing the Crown case against the appellants, stop to specify both kinds of transaction.) So the thrust of the prosecution case was, as I have already remarked, relatively simple. Furthermore, the appellant Rich had counsel appearing for him and, in many respects (but not all), his cross-examination of the prosecution witnesses was to the benefit of Hynes as well, as Hynes acknowledged in his final address. Nevertheless, the disadvantage to Hynes of not having his own lawyer remained substantial.

41. As the close of the prosecution case, Hynes's options were explained carefully to him. He told the Judge that he had decided not to give evidence in his defence. The Judge explained to him the consequences of that. He advised the appellant to reconsider the matter. Indeed, he told him that the Crown case against him was strong and that if he elected not to give evidence he ran a very real risk of the jury finding him guilty. He was told of his right to call witnesses. He was given plenty of time to make the necessary decisions. This all happened before Rich put his case to the jury, and after Rich's case was completed the learned Judge gave Hynes another opportunity to give or call evidence. Hynes maintained his earlier stand.

42. I notice that at the end of the trial the appellant addressed the jury for forty minutes. It was a fluent and relevant and competent address.

43. It was the learned Judge's duty to give the appellant such information and advice as was necessary to ensure that he had a fair trial, so far as that was possible in the case of an unrepresented accused. Cf. McPherson v The Queen (1981) 147 CLR 512; R v Zorad (1990) 19 NSWLR 91. It has not been shown that the Judge failed to discharge that duty.

44. In my opinion grounds (2), (3) and (6) fail.

45. Ground (4), which complained that the trial Judge failed to advise the appellant of the consequences of not giving evidence, was abandoned.

46. Ground (5) reads - "The learned trial Judge erred in refusing the appellant's application to have his father act as a McKenzie friend." 47. About the middle of the trial the appellant asked whether his father could sit with him at the bar table to "keep me awake or keep me abreast of what was going on." The Judge said that he could sit behind the appellant. He said, "It is not satisfactory to have him sit alongside you at all times, whether he is needed or not. I would be sympathetic to an application if and when the need arises." Apparently the matter was not raised with the Judge again.

48. Whether a litigant should be permitted to have a McKenzie friend is very much in the discretion of the trial Judge. Sometimes it can be of assistance, sometimes not. The trial Judge was in a better position than we are to form an opinion about that. I would reject this ground of appeal.

49. The next two of Hynes's grounds of appeal are - "(7.) The trial miscarried by virtue of the production and tender of documents by the prosecution for the first time during the trial to the prejudice of the appellant.

(8.) The trial miscarried by virtue of the refusal of the appellant's application for the production of documentary material." 50. The appellant says that he was asking for documents before the trial began and during it, including documents of Empire Mines and an associated company. At one stage

prosecuting counsel stated that the police had possession of some prospectus and other preparatory documents for Empire Mines but that there were no other books of account or records that had not already been provided to the appellant or disclosed to him. Then, towards the end of the trial, the police came up with some ledgers. The appellant says that this prejudiced his defence.

51. The late production of the documents is regrettable and may well have caused the appellant inconvenience, but there is no material before this Court upon which it could find that it prejudiced the appellant's defence. This ground of appeal fails.

52. Ground (8) was abandoned.

53. Ground (10) reads - "The trial miscarried by virtue of the severe mental and physical stress suffered by the appellant during the trial, the medication prescribed and taken by the appellant for the purposes of treating that stress and the effects of such medication. These matters severely reduced and impaired the appellant's ability to conduct his case and his ability to give evidence in his defence." 54. On two occasions during the trial Dr Bowman, a psychiatrist, gave evidence about the effect that the strain of the proceedings was having on the appellant. On May 27 Dr Bowman said that the appellant had been referred to him by his general practitioner. He was on medication at the time. In Dr Bowman's opinion the appellant was suffering from an anxiety state of moderate severity, driven basically by the court case. He thought the main problem was that Mr Hynes's thinking and processing abilities were impaired by his anxiety. He considered that, with a change to his medication and some psychiatric support, the appellant would be able to get through the rest of the trial although at stages he might not be terribly comfortable. The Judge observed to Dr Bowman that, on the last sitting day, the appellant had participated actively in the cross-examination of witnesses and that he seemed to the Judge to be alert and responsive, notwithstanding the way he had presented to Dr Bowman the previous night. His Honour asked Dr Bowman - "Q. Can I assume, then, that the trial can proceed subject to periodical consultations and checking of his physical and mental well-being by you, subject also to your right to report back to me if you discern any reason to modify or add to the evidence that you have given to me this morning?"

To which the doctor replied, "Yes, that is satisfactory." 55. On June 17, after the close of the Crown case, Dr Bowman gave evidence again. He said that he had been seeing the appellant twice a week. The appellant was coping as reasonably as one would expect under the circumstances. He still continued to suffer from a significant anxiety state and would continue to do so until at least the end of the trial. Dr Bowman considered that if the appellant were to give evidence he would have trouble thinking clearly under pressure - he would tend to jump a lot and would tend to become confused. Dr Bowman had no recommendation to make as to whether the appellant should or should not give evidence. The Judge observed to the witness that the appellant had given him every appearance of being responsive and alert, save for one period of an hour or two after a medical consultation when he was obviously suffering from drowsiness as a consequence of his medication, and Dr Bowman thought that that was a fair statement. It seems, then, that the main problem was the stress of giving evidence. As for that, Dr Bowman thought that he should be able to tell his own story but that in the nature of things his underlying anxiety would increase when he was cross-examined. There was a risk that he would become sufficiently anxious not to be able to think straight. If things were taken slowly and quietly and he was given frequent breaks to recompose himself, he might be able to cope.

56. One can expect that many accused persons will become anxious and stressful as the trial proceeds, particularly if it is a long trial, and especially if they are unrepresented. One can infer from Dr Bowman's evidence that, however and whenever the appellant was tried, he would develop some sort of anxiety state. Obviously that could not be made a ground for not trying him at all. I note the learned Judge's observation about the appellant apparently coping adequately in court, and after Dr Bowman had completed his evidence the Judge made it plain that the doctor's views would not stand in the way of the trial proceeding. Nor did the Judge consider that it would be appropriate for the appellant to elect not to give evidence solely on medical grounds. (He expressed the same view at the end of the Crown case, when he referred to his own observation and experience of the appellant and his conduct during the trial. See transcript, pp1684, 1745. Certainly the appellant's later cross-examination of Rich gives no hint, on the printed page, of any personal difficulties at all.) The Judge warned the appellant again of the risk that he would run if he did not give evidence. He explained that and the appellant's other procedural choices carefully and gave the appellant all the time he needed to consider them. Later the learned Judge altered the normal order of addresses to accommodate Mr Hynes. The submission that the trial miscarried by reason of the appellant's medical condition is not made out.

57. Ground (24) touches on the same subject - "The learned trial Judge erred in refusing the appellant the opportunity to explain to the jury why the appellant had chosen not to give evidence in his defence and to call evidence in respect thereof." 58. A constant problem on this appeal in dealing with the appellant's procedural complaints is that we have often not been given transcript references, and it is not entirely clear from the appellant's outline whether he, in fact, sought to tell the jury why he had chosen not to give evidence in his defence or to call evidence on the subject. The form of the submission suggests that he did not, and that the complaint is rather that the learned Judge should have advised him of his relevant rights. It does not really matter. The appellant could not be permitted to make contentious statements of fact from the well of the court. Assuming that an accused person may call medical or other evidence to explain why he is not going into the witness box himself - I suppose he can if the witness is suitably qualified or the evidence if otherwise relevant, but we did not hear argument about that - the fact is that Dr Bowman's evidence is unlikely to have assisted him with the jury and we know nothing of any other evidence on the subject that may have been available to the appellant. In my opinion the learned Judge was not obliged in the circumstances to offer the appellant any information or advice on this matter. I would reject this ground of appeal.

59. Ground 7 complains that the trial miscarried by virtue of Hynes cross-examining or being required to cross-examine first. Hynes's name appeared first on the information. At the end of the trial the learned Judge was willing to reverse the normal order of addresses, by way of assistance to Hynes, but he was not willing to change the usual practice with respect to cross-examination. He had to consider Rich's interests as well. He was justified in requiring Hynes, though unrepresented, to conform with the usual practice. I would reject this ground of appeal.

60. Ground 8 and 15 can be taken together - "8. The trial miscarried by virtue of the nature of the case for the co-accused Rich which was to wholly implicate the appellant and wholly exculpate the co-accused. The appellant could not and did not understand the nature and effect of that aspect of the co-accused's case, had not been able to adequately prepare or present his case in answer thereto, and had not been able to adequately prepare and present the same approach in his own case."

"15. The trial miscarried by virtue of media coverage of the trial following the prosecution opening." 61. I do not think that Rich expressly stated in evidence that Hynes fraudulently converted the proceeds of the complainant's cheque deposits but he does not appear to have contested the allegation that funds were in fact converted and his denial of any involvement himself carried the unmistakable implication that, if anyone was committing crimes, it must have been Hynes. It commonly happens, of course, in a joint trial that the co-accused blame one another and the result is probably to clarify the issues in the minds of the jury and to assist them in their task. The other matters asserted in these grounds of appeal are not supported by evidence. Both grounds must be rejected.

62. Ground 9.2 to 9.6 allege that in one way or another the trial miscarried. The particular causes or blemishes asserted are - "9.2 The appellant's lack of understanding of the nature and effect of a joint trial;

9.3 The appellant's lack of understanding or opportunity concerning an application for a separate trial."

There is no evidence to support the claimed lack of understanding or opportunity.

"9.4 The delay in bringing the appellant to the trial." 63. Both appellants complain of undue delay causing prejudice. There was delay, caused no doubt in part by Hynes's funding applications. Delay is always regrettable but I see no reason to think that it could have caused a miscarriage of justice in this case. I would reject this ground.

64. Hynes's ground (9) reads - "The learned trial Judge erred in refusing to discharge the jury following a communication by a juror to a prosecution witness which amounted to bias." 65. The circumstances of this incident are set out in the reasons of Bleby J. I agree with his Honour's conclusion. It is not inconsistent with a juror's spontaneous show of sympathy for an elderly witness who is ill and showing signs of distress that the juror should be capable of addressing the issues in the trial dispassionately and impartially; nor would any informed and fairminded bystander think otherwise. The Judge had refreshed his memory of Webb and Hay v The Queen (1994) 181 CLR 41 and, while he did not expressly say so, his refusal to discharge the jury implied that he was confident, from his assessment of the juror and the impact of his special direction, that justice would not miscarry if the trial continued. I see no reason to doubt the correctness of that view. Nor is there any reason to think that the impartiality or detachment of the rest of the jury was comprised by their involvement in the incident. I would reject this ground of appeal.

66. The appellant's Hynes's additional grounds 3 and 5 complain of the use in the trial of a statement of agreed facts and of the reliance by the prosecution on an alleged general deficiency in the company's trust account when the appellant could not understand the nature and effect of such things and was not able to prepare or present his defence with respect to them. However, any such complaint would require evidence to substantiate it and there is no such evidence before the Court. Accordingly grounds 3 and 5 must be rejected.

The Judge's directions to the jury

67. There is a group of grounds relating to the summing up.

68. The nature of the allegations against Hynes and the way the Crown sought to prove them are described in the reasons of Bleby J. As I have indicated, in some cases the appellant Hynes would receive cheques from clients for the purpose of making specified investments on their behalf, and in other cases he (or the company) would receive on behalf of a client the proceeds of a redeemed investment in order to pass them on to the client. These are the alleged acts of entrustment for the purpose of proving the charges under s184 of the Criminal Law Consolidation Act. Cheques were then drawn substantially or wholly against the funds provided by those cheques for purposes inconsistent with the client's instructions or interests. These are the alleged acts of conversion. The appellant Hynes was running the company's investment business at that period. In all instances but one, he had the relevant dealings with the client concerned and he made or organized the drawing of the company cheques that were used, it was said, to divert the clients' funds. Rich's participation was confined to signing the cheques.

69. Fraudulent conversion was formerly a misdemeanour, now it is simply "an offence". Whether any particular entrustment was to Hynes personally or the company whose director and servant he was, and whether any act of conversion was committed by Hynes personally or by the company acting through its servant or agent Hynes, would not appear to matter. If the company committed an act of fraudulent conversion because of the dishonest actions of Hynes, he was guilty of the offence committed through his agency and it was a matter of indifference, legally speaking, whether he was charged as a principal or as an accessory. See old s269, new s267, of the Criminal Law Consolidation Act.

70. Hynes has fourteen or fifteen grounds of appeal relating to the summing up and Rich has about the same number. Some of the grounds taken by the two appellants overlap, but in most cases even those grounds require consideration of the impact of a particular direction on the appellants' separate defences. The numbers I have given are misleading, however, because many of the grounds are subdivided. Furthermore, Hynes's ground 15 ("The learned trial Judge's directions were unfair to the appellant") has been used by his counsel as the vehicle for raising a large miscellany of additional complaints about the summing up extending over a dozen pages of written submissions. The drafting of the two notices of appeal testifies to more industry than discrimination on the part of those responsible. Each notice is a regrettable example of the "shotgun" notice. To deal with all of the grounds in the usual way, one by one, would produce a judgment of even greater length than this and take more time than the submissions in many instances warrant. I have read and considered all of the grounds of both appellants. I shall deal with some of them in groups, aided in Rich's case by Mrs Shaw's grouping of certain of her client's grounds of appeal. Others I shall deal with a fairly summary way, without citing authorities, if I think the ground, though raising a generally important question, is hardly arguable in this case. If I do not mention a ground or submission at all it will be because I have considered and rejected a point that was self-evidently not worth advancing.

The use of tables

71. Both appellants complain of the provision by the Judge to the jury of two tables or schedules (Table 1 and Table 2) in the course of the Judge's explanation of the prosecution case. The jury already had an annotated copy of the company's trust account bank statements (P27) which was explained by the expert evidence and designed to make clear the prosecution case about the misuse of a complainant's money in the trust account. Thus page 11 of Exhibit P27 was designed to show how cheques received from Rabbi Morris (counts 13 and 14) were disbursed inconsistently with his instructions. Tables 1 and 2 supplemented P27 with other aspects of the relevant receipts and payments and their effect on the trust account balance. Table 2 also recorded the outcome from the point of view of the client concerned - whether the money deposited with the company ever reached its intended destination. The tables were based on the evidence.

72. The use of charts and tables for the assistance of the jury in long or complicated fraud prosecutions is well established and cannot be criticized as long as it does not operate unfairly against the accused. It would have been obvious to the jury that the tables purported merely to summarize aspects of the prosecution case. The heading on each table ("Prosecution Case") made that clear. So did the Judge's explanation of the tables to the jury. Whether the jury could or should draw any conclusion from the evidence summarized in the tables was left for the jury to decide. That included the question whether an inference of conversion could be drawn from the trust account balances at particular times and with respect to particular payments in. It was not misleading or unfair that the tables did not include a summary of evidence upon which the appellants relied - for example, Rich's absences from the State or whether he knew the particular client in question. The tables were an aid to the jury in summarizing in a convenient form a great deal of prosecution evidence, essential to the understanding of the several charges, which was in large part undisputed. The attack on the Judge's use of the tables should be rejected.

General deficiency

73. Much was said on this appeal about general deficiency. As proof of a conversion of the proceeds of a particular client's cheque, deposited in the trust account for (it was said) a specified purpose, the Crown relied on a subsequent depletion of the trust account below the amount of that particular cheque, none of the relevant debits being for a purpose consistent with the client's instructions or the proper disposition of his or her trust moneys. It is in this sense that the Crown was relying upon a general deficiency in the trust account. Cf. The Queen v Goodall (1975) 11 SASR 94, at 97-107. Mr Brebner's argument was that, although it could be shown when specific cheques were debited to the account, subsequent to the deposit of a client's cheque, it could not be shown which of the withdrawals was funded by the proceeds of the client's cheque or to what extent they were so funded. All that could be shown was a shortfall and a failure to comply with instructions or to account; hence the need to rely on the general deficiency.

74. A general deficiency is simply an aid to proof. I think the Crown was entitled to rely upon a general deficiency in this case. The effect of paying into the trust account a cheque earmarked for a particular purpose that was never fulfilled was to mingle that client's moneys with the existing credit balance (where there was one) and often with other credits made subsequently, and it was not always obvious that a particular subsequent withdrawal or withdrawals from the account were funded by the proceeds of the client's cheque rather than from other moneys deposited in the account. For instance, the Crown alleged (count 13) that Rabbi Morris entrusted the appellants with $14 000, earmarked for Rothschild Australian Equities, and that his cheque was paid into the trust account about 19 April 1989. At that date the account was already in credit to the extent of $47 000. Over the next few days large sums were withdrawn from the account so that the balance on April 26 was only $6 000. There was a sense, then, in which it could be said that there was evidence here of a conversion of at least some part of Rabbi Morris's funds by April 26, but whether that was the case and, if so, whether the conversion was dishonest were complicated by the circumstances that there were two other deposits, of $4 000 and $20 000, made in the meantime and that a deposit of $10 000 on April 27 took the credit balance up to $16 000 - enough to allow compliance then with Rabbi Morris's instructions. Indeed, there is another complication that I could have explained when I began this example, namely, that (according to the evidence) Rabbi Morris handed Hynes two cheques, not one, about April 19, the other being for $15 000 to be invested in The BT Equity Imputation Fund and that this was also paid into the trust account on April 19. That made it even more difficult to trace any particular withdrawal from the account in the relevant period back to one or other of Rabbi Morris's earmarked credits.

75. Usually a prosecutor relies upon a general deficiency where there is a large number of thefts or frauds committed over a relatively lengthy period and it is impossible to identify them or trace them individually so that the only way a crime or crimes can be proved is by ruling off the books to establish a general balance and then showing in some appropriate way that the only explanation for the demonstrated shortfall is theft or fraud and that the defendant must have been the person responsible. The present case differs from that typical reliance upon a general deficiency in the matter of scale but that did not, I think, prevent the Crown from relying upon the principle. Compare the example given by Cockburn CJ in The Queen v Balls (1871) 2 CCR
328, at 332. The Crown was entitled to rely upon a general deficiency in this case to meet any defence objection that it could not prove which particular cheque or cheques led to the conversion of a client's trust moneys. Typically in the conversions alleged against the appellants there was a mingling of credits and there were also multiple debits within the relevant period, making reliance upon a general deficiency appropriate. See Reg v Tomlin [1954] 2 QB
274, at 282; Goodall at 97, 108.

76. So the Crown was entitled, in my view, to point to a general deficiency in the trust account at a period subsequent to the deposit of the two Morris cheques on April 19 and to invite the jury to infer from the movements in and out of the account, including payments totalling $86 000 to Empire Mines between April 20 and April 26, coupled with the failure to invest Rabbi Morris's moneys in accordance with his directions, that the proceeds of his two cheques were at some time subsequent to their deposit in the account converted by the appellants, the depredations beginning with one or more of the debits entered against the account in that period.

77. As with Rabbi Morris, so with the other clients. The Crown was thus alleging a large number of separate deficiencies, each relating to a particular deposit in the trust account. While I cannot find in the books any case on all fours with this, it seems to me that in principle the prosecution should be able to rely upon proof of a general deficiency in this case.

78. It was submitted that a general deficiency must relate to the totality of the accounts of a company, and that here the prosecution was seeking to rely upon the state of the trust account only. There was evidence that the financial records of the company were incomplete - the trust account ledgers were said to be missing - , but the jury was entitled in the circumstances to draw inferences from the trust account alone. For example, once Rabbi Morris's cheques were paid into the trust account, the only way of moving the proceeds of them out of the trust account was by drawing a cheque or cheques against the account, and there was no subsequent debit that could be said to fulfil the purpose of the entrustment. The evidence was that Rabbi Morris's funds never reached their intended destinations. It is fanciful to suppose that some bona fide deposit may have been made in some other company account to compensate for the apparent disbursement, for purposes not authorized by Rabbi Morris, from the proceeds of his cheques totalling $29 000 deposited in the company's trust account at the ANZ Bank.

79. It was put to us that the learned Judge incorrectly identified the acts of conversion alleged by the Crown when he told the jury, for example with respect to count 3 - "So the act of conversion - let me repeat - in terms of count 3 against Hynes, is the signing of the cheques out between the relevant dates to the point where the trust account balance falls below the value of the cheques." 80. The submission was that, if there was a conversion of funds resulting from the drawing of a cheque, then the conversion occurred when, the cheque having been paid into the account, the account was debited with the amount of the cheque. So far as the appellant's state of mind was concerned, that had to be judged at the time the alleged conversion took place, not at some earlier time when the cheque was drawn. The learned Judge's statement to the jury was therefore wrong and misleading.

81. I think that an examination of the passage I have quoted from the summing up shows that the learned Judge was really identifying the signing of the cheques with the resultant fall in the trust account balance, as a composite activity, so that his statement was substantially correct. At any rate, the point is without significance in the circumstances of this particular case. No doubt there could be cases in which a man could sign a cheque with a fraudulent intention which he has abandoned by the time the cheque has been cleared by the bank - and I do not stay to consider what the legal consequences of that might be - but there is no sensible view of the evidence that could make that a relevant point of distinction in this case with respect to either appellant. The case presented by the Crown was that Hynes throughout, and Rich from the time indicated by count 13, acted dishonestly in signing the cheques and that each maintained that state of mind at all relevant times thereafter.

82. Another submission about the general deficiency evidence was that a shortfall with respect to any particular client's deposit may not have been created by specific payments out, but be the result of the account being in debit when the client's cheque was paid in. However, if the proper interpretation of the situation, as evidenced by a relevant shortfall, is that the company deliberately and dishonestly used a client's cheque, earmarked for a specific purpose, to reduce its overdraft, that would in my opinion amount to a conversion of the client's money.

83. Grounds 4 and 6 of Hynes's notice of appeal attack the reliance by the prosecution on evidence of a general deficiency in this case and complain of error on the part of the learned trial Judge in directing the jury that it could rely on the existence of a general deficiency. The learned Judge explained to the jury that one of the elements of a charge of fraudulent conversion was an act of conversion (element 3) and said - "The act of conversion alleged against Hynes in terms of the third element is that, between these two dates, he signed or countersigned cheques on the trust account for purposes other than the client's purposes, and thereby created a general deficiency in the trust account. A general deficiency in the trust account occurs if, between the relevant dates, the trust account balance falls below the value of the client's cheques. So what you look at, in this context, in terms of all credits to the trust account but presently in relation to the Forbes cheques, is whether the proceeds of those cheques were applied between the relevant dates for purposes other than investment on behalf of Forbes.

So the act of conversion - let me repeat - in terms of count 3 against Hynes, is the signing of cheques out between the relevant dates to the point where the trust account balance falls below the value of the cheques. If you conclude that the payments out were for purposes other than Forbes' purposes, then you move on to consider the fourth element..." 84. His Honour gave like directions with respect to other counts on the information, always coupled with the need to ask, if there was a conversion established by the general deficiency evidence, whether applying the proceeds of a client's cheque for an unauthorized purpose was dishonest. I think that was a proper direction.

85. I therefore reject Hynes's complaint about the general deficiency directions to the jury. I shall consider later a separate objection that Rich raises on this subject.

86. I would just add that, if I am wrong about the categorization of this trust account evidence as evidence of a general deficiency, it makes no difference to the result. The jury was entitled to draw the relevant adverse conclusion from all the circumstantial evidence. See Bleby J's analysis of the matter.

87. The learned Judge told the jury to consider each count and each accused separately, but he also said - "I have already said that a person's state of mind must be ascertained by inferences drawn from what he says and does at the relevant time. When you look at what Hynes did at the time you are entitled to look, not only at his conduct in relation to a particular count, but also at his conduct in relation to other counts.

Proven conduct in relation to other counts may indicate a plan or scheme to misapply clients' funds for dishonest purposes. There may be an innocent explanation for one isolated instance of misapplication of clients' fund, say carelessness or mistake, but a number of such instances may lead you to infer that the accused's intention was dishonest. If instances are repeated over a period of time, the point is sooner or later reached where you can safely reject careless or mistake or innocent purpose as a possible explanation, and infer a dishonest intention beyond reasonable doubt." 88. His Honour went on to apply that direction particularly to counts 16, 17 and 18. Mr Mancini submitted that the learned Judge was unfair and biased in directing the jury in this way.

89. In my opinion the direction was a proper one to give in the circumstances of this case.

90. Ground B of Hynes's notice of appeal reads - "The learned trial Judge failed to direct the jury as to the alternative basis by which the jury could determine the culpability of Rich, namely, on the basis that he was the sole offender that committed the offence of fraudulent conversion wherever he was jointly charged with Hynes and, in particular, in respect of counts 13 to 19 or 21. That was the effect of Hynes's defence." 91. Certainly this was the thrust of Hynes's defence - if anyone was defrauding these people, it was Rich - but it was not explained to us on the appeal how any jury could reasonably find on the evidence that Rich could have perpetrated frauds on all these people without Hynes's full complicity. It was therefore not an error of the learned Judge to omit the direction now suggested.

92. A related complaint is contained in Hynes's ground (21) - "The learned trial Judge erred in failing to give any or adequate direction warning as to the uncorroborated evidence of the co-accused in so far as it inculpated the appellant." 93. I think it would have been better had the learned Judge given a direction along the lines approved in Webb and Hay with respect to so much of Rich's evidence as tended to incriminate Hynes. However, this was a matter within the learned Judge's discretion, and in any event his failure to give such a warning could not possibly have made any difference to the result. The case against Hynes was very strong. Rich's evidence against him was corroborated abundantly. No miscarriage of justice could possibly have resulted from the failure to give a modified accomplice warning. I would reject this ground of appeal.

94. Hynes complains (ground 22) that the learned trial Judge erred in failing to give an adequate direction as to whether the appellant had any motive in committing the alleged offences. The Judge does not appear to have mentioned the subject in his summing up but that was not to the appellant's disadvantage. The jury could well have concluded from all the circumstances, including the liquidation of the company in 1990, that clients' funds were being used to meet the company's accumulated liabilities and so prop up the company upon the continued existence of which Hynes's livelihood depended. There was also evidence that Hynes had a potential interest in Empire Mines.

95. There were general and particular complaints about the learned Judge's treatment of Hynes's defence. Hynes did not give or call evidence. There was no body of material, then, to be put before the jury in contradiction of the prosecution witnesses. Hynes's defence was simply that the Crown had not proved its case against him and, in particular, that he had not acted dishonestly. That is what the Judge told the jury.

96. Ground (14) refers to a supplementary direction that the learned Judge gave following a question from the jury after they had retired. The question and the redirection were related expressly to the appellant Rich, but the appellant Hynes complains of the Judge's failure to redirect the jury in so far as the jury's question related to the charges against him. It is enough to say that Hynes could not have been assisted by the direct application of the redirection to his case.

The admissibility of the evidence of Giles (Hynes additional grounds 13 and 14)

293. These grounds challenge the admissibility of an out of court statement of the appellant Hynes led through Detective Giles, and include an allegation that Hynes did not understand the proper basis on which he could object to the admissibility of the evidence or conduct a voir dire hearing in respect of it. There was no other written or oral argument addressed in support of these grounds.

294. The evidence in question concerned a conversation between Detective Giles and Hynes during the course of execution of a search warrant. In the absence of the jury the prosecutor, before leading the evidence, raised the possibility, based on the content of the statement itself, that Hynes might wish to object on the basis that he did not clearly understand two cautions which were administered to him during the course of the conversation, and on the ground of what might be said to be oppressive conduct by the police. In raising those matters I hasten to add that the prosecution was not suggesting that either of such suggestions had any substance. Nevertheless, the position was explained to Hynes as to his right to object and his right to have Detective Giles called on the voir dire. He chose to exercise that right, and Giles was called. He was cross-examined by Hynes with assistance being given in the formulation of the appropriate questions to be asked. On several occasions Hynes was offered the opportunity to give evidence himself if he disagreed with any of the evidence given by Giles on the voir dire. He was reminded that he had asserted when the question was first raised that he felt obliged to answer the questions put by Detective Giles. Both the prosecutor and the trial judge said that it might be in his best interests to give evidence as to why he felt obliged to answer the questions, and his evidence on that question would be heard. He declined to give any evidence. On this occasion not only did Hynes then address on the admissibility of the statement but was assisted on some points by counsel for Rich. The learned trial judge ruled that the relevant parts of the statement were admissible.

295. I have no doubt that the process involving the explanation of his right to object to the evidence and as to the hearing of a voir dire was fully explained to and understood by Hynes, and that he cannot complain of any defects in process in the resolution of the admissibility of the statement.

296. In making his ruling the learned trial judge was satisfied that Hynes clearly understood the cautions which had been administered to him and that all the questions asked by Detective Giles after the cautions were proper in all the circumstances. He was assisted in that conclusion by the fact that, notwithstanding the conversations occurring after the cautions, Hynes specifically declined to answer a number of questions, consistent with an understanding of the cautions. He declined to exercise his discretion to exclude the conversation on the ground of unfairness to the accused, and in my opinion there was nothing to indicate that that exercise of discretion was conducted on other than a proper basis. He also declined to exercise his discretion to exclude the conversation on the ground of unlawful or oppressive conduct. He had heard and observed the police officer concerned and accepted his evidence, and Hynes had declined the opportunity to give evidence as to how or why it was that he felt under stress. There are no grounds on which to interfere with the exercise of the discretion in that regard. This ground therefore fails.

Contact between a juror and witness (Hynes original Ground (9), Rich Ground 18)

297. Mrs Shearing was a client of the company who gave evidence in relation to three of the counts alleged against both appellants. She had entrusted three cheques to Hynes with a total value of $80,703.75. When she did not receive confirmation of the various investments she had ordered, she contacted Hynes and there were many conversations between them over the ensuing months. Eventually he presented her with a deed which purported to be a loan agreement between them which stated that he was in debt to her for the total amount of the face value of the cheques. None of the money had ever been refunded to her.

298. At the time of giving evidence Mrs Shearing was quite ill and undergoing chemotherapy treatment. Her discomfort was apparent whilst giving her evidence, and she was hyperventilating. Even the appellant Hynes observed in the absence of the jury (p791) that it "certainly grieves me greatly to see her in this condition".

299. The witness was still in the course of her evidence in chief when she was stood down at the end of an afternoon session and the jury left the court. Mrs Shearing was sitting down outside the court still in a state of distress when the jury emerged. One of them came up to her and said "You're doing fine. It's okay. You're doing fine", and touched her on the right shoulder. Such was the evidence of Detective Seja who was present and who gave evidence within minutes of the event happening.

300. The following morning the juror concerned was asked to give her explanation during which she said:

"I suppose it was just human reaction, I was passing her, I saw that she was very distressed. I saw two people with her comforting her and it was just a cry of my soul. I came up to her and said 'Please don't worry. You were very good." 301. In further discussion with the trial judge she agreed with a description of her conduct as a spontaneous gesture of sympathy and nothing more than that. When asked if she felt compromised by what had happened she said:

"It is very difficult. You know, we spoke about it with other members of the jury and I know that, from the point of legality, perhaps I have done something wrong. But, as a human being, I think that we have to support each other and, seeing this old woman distressed, I am sitting opposite her (INDICATES), I saw her, I felt absolutely awful." 302. The judge then asked the juror whether she could continue with an unbiased and dispassionate mind to which she said:

"I hope so. It is always difficult to deal with human emotions, but I will definitely do my best and in no way has it compromised whatever is happening here, because nothing has been said and it is absolutely out that something could have been said referring to the case itself". 303. The following exchange then took place: "HIS HONOUR: Let me repeat; do you feel entirely confident that you can keep an open mind?

JUROR: Yes.

HIS HONOUR: On any of the issues in the case, until all the evidence is in?

JUROR: That goes without saying, yes, of course." 304. She was later asked about the nature of any discussion she had with other members of the jury to which she said:

"I said that I felt awful that I have done something which I know I shouldn't have done, at the same time, through my compassion, I couldn't help it. And they all understood me." 305. The trial judge then recalled the jury, and after recounting the facts concerning the incident said: "But this does lead me to repeat to you all a warning that I gave you at the commencement of the trial and I can probably do no better than read from the transcript of what I said on that occasion, at pp.78 and 78(sic):

'I am also prompted to advise you of something you already know, and that is, that you should confine your discussions about the case to the jury room. You may be tempted, from time to time, to discuss the case with friends, family and others. Clearly, it is perfectly proper for you to say "Look, I am sitting on a fraud trial", but avoid the temptation to go into any detail, confine your discussions to the jury room. As well, please do not discuss the case or the time of day or anything else with persons who you may meet in the court building. Not only must justice be done, justice must be perceived to be done. And, if a juror is seen to be talking to a witness or a proposed witness or a member of the court staff or a stranger in the court building, others might not perceive that the conversation is harmless. We must avoid the risk of the trial aborting by reason of any discussion that any member of the jury may have, harmless though it may be, with anybody in the precincts of the court.'" 306. It is said that in those circumstances the jury should have been discharged. It is always unfortunate when an incident like that arises during the course of a trial, but I do not consider that it was necessary in those circumstances for the trial judge to discharge the jury. In Webb & Hay v R
(1994) 181 CLR 41, at a late stage in a trial, the evidence having run for approximately one month, and at a stage where the addresses were almost at completion, a juror gave a bunch of flowers to a person at the courthouse with the request that it be given to the alleged murder victim's mother. By a majority, the trial judge's decision not to discharge the jury was upheld by the High Court. All five judges agreed with the application of a "reasonable apprehension or suspicion" test, namely (to use the words adopted by Mason CJ and McHugh J at p53) "whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially." The differences in the conclusions between the majority and the minority lie in the application of that principle to the facts of the case. It is to be inferred, however, that the expression of sympathy in that case was for a close relative of the victim in her capacity as such.

307. The action of the juror in this case appears to have been an impulsive and quite human reaction to a witness obviously in distress and suffering a great deal of discomfort - distress and discomfort not caused by the nature of the questions she was being asked or the answers she was giving. It was distress caused by an illness not associated in any way with her giving evidence in the case. The juror seems to have given a perfectly rational explanation for her conduct, frankly admitted her mistake and considered that she was capable of bringing an impartial judgment to bear upon the case. Her actions seemed to have been understood and accepted by the other members of the jury for what they were.

308. The witness was an alleged victim of the fraudulent conversions and had lost a substantial amount of money. However, the comment was made not in sympathy for the witness as a victim or for what she was enduring in her capacity as a witness, but as a person giving evidence dispassionately but under severe physical stress. Furthermore, the incident occurred at a stage in her evidence where she had not given full details of her loss and had not given evidence of any unsuccessful attempts to recover the money. She was therefore unlikely to have evoked spontaneous sympathy at that time on that account.

309. Taking into account the cause of the incident, its timing, the nature of the exchange, the explanation subsequently given and the repetition of the warning to the jury by the trial judge, it is not such as, in my opinion, to give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that either the juror in question or the jury as a whole did not discharge or could not discharge their task impartially.

Unsafe and inconsistent verdicts (Hynes original ground (13), Hynes additional grounds 12.1, 12.2, Rich grounds 19 and 20.4)

310. These grounds are in part related to those parts of the summing-up to which I have referred, and it is convenient to deal with them together. The complaints of Hynes can be readily dealt with. I have already set out the counts on which Hynes was convicted and those on which he was found not guilty. For each of the not guilty verdicts there appears to be a rational explanation to which I have already referred. I can see no inconsistency in relation to those verdicts. There are no other grounds on which the verdicts against Hynes can be said to be unsafe. As Cox J has observed, it was a strong case against Hynes, and it was open to the jury to return the verdicts of guilty on the counts on which they did.

311. In relation to the counts on which they were jointly charged, Counts 23 and 25 resulted in a verdict of guilty for Hynes and a verdict of not guilty for Rich. That the two verdicts in each case were different does not demonstrate inconsistency, but merely that the jury was not satisfied that the various components of Element 3 in relation to Rich had been proved. It is necessary, however, to give further attention to those counts which I do below.

312. Counts 26 and 27 resulted in differing verdicts between the two appellants, but in the case of Rich, he was acquitted by direction of the trial judge in circumstances which I have already described. This does not give rise to any inexplicable inconsistency.

313. Before looking more closely at any alleged inconsistency between the verdicts concerning Rich alone, it is again necessary to return to the structure of the summing-up. After giving the general directions to which I have already referred, the trial judge summarised the facts relating to each individual count with which Hynes had been charged by reference to receipt of the relevant cheque or payment into the relevant account and the drawing of cheques said to create what was called the general deficiency. In the case of counts involving Rich, after giving the general directions, a similar pattern was followed in relation to each of the counts with which he was charged, having first said that it was a necessary pre-condition to any finding against Rich that the jury was satisfied of Hynes' guilt beyond reasonable doubt. In respect of each count he then referred again to the credit to the appropriate account, invited the jury to look at the payments out of the Trust Account in that relevant period, to combine those facts with what the trial judge had described as "the background facts" from which the Crown had alleged that Rich's knowledge of Hynes' activities could be inferred, and invited the jury to ask themselves whether they were prepared to infer the requisite state of mind required by what he described as "Element 3" against Rich. In relation to some of the counts he drew particular attention to some of the payments out occurring during the relevant period which were to Empire Mines or Bank of New Zealand.

314. Leaving aside the acquittals of Rich by direction of the trial judge, Rich was found guilty on all counts except counts 23 and 25. The directions given in relation to those two counts might be said to be particularly favourable to Rich. They were as follows: "The first Penno count is count 23, this is the credit to the Rich & Partners No.2 account. You look at Exhibit P5. Again you will see that Mrs Penno's money was included in the credit of $16,447.57. By 12 September the No.2 account had dropped well below the value of the Penno cheque, indeed to $3,406.42. Ladies and gentlemen, we don't have any information about the purpose and destination of the cheques out in the relevant period, so you might well think that there is nothing in the facts which are directly relevant to the charge which may implicate the accused Rich. Nevertheless the question for you is whether when you combine the background facts with the facts directly relevant to the count, the requisite state of mind in terms of the third element can be inferred against Rich as the only reasonable inference which is open.

The next relevant count is count number 25, the Stefanidis cheque for $10,000. That was credited on 26 September. The relevant period was the period of just two days, clearly a general deficiency was created by payments out in the period. The two payments out in that period appear to both have been cheques in favour of Phillips Henderson Ward. Ladies and gentlemen, again it could scarcely be said that those payments out incriminate the accused Rich in any way. Nevertheless, I repeat, the question for you is whether the facts directly relevant to this count when combined with the proven background facts enable you to infer the requisite state of mind in terms of the third element against Rich as the only inference which is reasonably open." 315. These may be said perhaps to have been the most favourable directions to Rich on any of the individual counts. The directions on some other counts, on which a guilty verdict was returned, could also be said to be favourable. For example on Count 22 when speaking of the payments out of the Trust Account the trial judge said:

"You might think that none of the payments out are directly attributable to the accused Rich. However, the question for you is, when you combine the proven background facts with the facts that are directly relevant to... Count 22, can you infer the requisite state of mind in terms of the third element, as the only inference which is open." 316. Likewise in relation to Count 30, the trial judge told the jury in relation to the payments made out of the count that "You might think that none of the payments out really implicate the accused Rich in any way", and he completed reference to that count in much the same way as the others.

317. I have already observed that the way the case was framed was based on misuse of the proceeds of a particular cheque for purposes other than those specified by the client. It did not really matter whether a particular deposit was used to fund payments to Empire Mines, to pay debts to sharebrokers or to pay for investments in accordance with the instructions of other clients. All that mattered to prove the fact of conversion was the payment out other than in accordance with the instructions of the client. It was not necessary to direct, in relation to Rich's knowledge, that Rich had knowledge of the particular deposit or that the instruments of conversion that he signed were necessarily associated with conversion of the proceeds of a particular client's cheque. All that he had to know was that by signing cheques he was assisting Hynes to apply some of the proceeds of clients' cheques to unauthorised purposes. As the trial judge acknowledged at various points during his summing-up, many of the payments out of the Trust Account could have been and no doubt were legitimate in the sense of being in satisfaction of legal obligations incurred by the Company, and that applied even to cheques drawn in favour of Empire Mines, such as in the case of Mr Hutchesson to whom I have already referred in relation to Count 5. The fact that the learned trial judge in relation to some of the counts gave directions tending to favour an acquittal by reference to the payees of the cheques which caused the deficiency could only favour the appellant. That approach seemed to convince the jury in respect of Counts 23 and 25, although not in respect of the others.

318. There is no doubt that in relation to some of the counts the trial judge drew particular attention to the fact that some of the cheques causing the deficiency were paid to Empire Mines. The real question is whether directions in those cases which might be said to be unfavourable to Rich rendered the verdict on that count unsafe. Perhaps what might be said to be the most unfavourable direction in that sense can be seen in respect of Counts 13 and 14. The trial judge said: "If you look at the cheques that were debited to the trust account in that relevant period, doubtless you will conclude that at least the accused Rich's signatures appears(sic) on those cheques, and you will notice that three debits in particular were made to Empire Mines, $20,000, $2,000 and $64,000, making a total of $86,000. It would seem clear enough that Morris's money was used to fund those payments to Empire Mines.

So, ladies and gentlemen, you combine the proven background facts with the facts to which I have just referred, and, in particular, the payments out to Empire Mines, and you ask yourself whether you are prepared to infer the requisite state of mind on the part of the accused Rich as the only inference that is reasonably open." 319. The payment of the cheques to Empire Mines was, of course, relevant to Rich's state of mind in relation to those counts as it was in respect of all the counts against Rich. I note that among the many references to payment of amounts to Empire Mines scattered throughout the summing-up is a reference to some of the more significant payments on that account in relation to Count 12 which only concerned Hynes. The fact that reference to payments to Empire Mines was only made in respect of some of the counts concerning Rich, but not all, could only be seen as being favourable to Rich in respect of those counts where they were not mentioned. Thus, whilst it may be said that there appears to have been some inconsistency in the summing-up in relation to particular counts, this has only been an inconsistency favourable to the appellant and not one which would justify a conclusion of unsafe or inconsistent verdicts.

320. As to whether the verdicts against Rich were otherwise unsafe and unsatisfactory I agree with Cox J's conclusion that this ground has not been made out. Much of Rich's argument was based on the degree of knowledge that the Crown needed to prove in relation to each of the counts. Once it is understood, however, that with respect to any cheque he signed Rich only needed to know that Hynes might possibly use it to commit an act of fraudulent conversion, there was sufficient evidence from which the jury could properly infer that Rich had the requisite degree of knowledge and intention in signing the cheques.

Verdict against the weight of evidence (Rich ground 20)

321. Apart from the other allegations of unsafe verdicts which I have already dealt with, this ground alleges that the verdict in respect of the Guiney charges (Counts 16-18) and the Shearing charges (Counts 15, 19 and 21) were against the weight of the evidence.

322. Mrs Guiney was the one client who, in the past, had dealt with Rich. Acting on Rich's advice to redeem some existing investments, she did so, and received three redemption cheques totalling $16,585.60. She gave the cheques to Rich and signed an endorsement to enable them to be paid into the Trust Account. She gave no specific instructions as to the nature of any replacement investments. She was prepared to act on Rich's advice. There was a dispute on the evidence as to whether the re-investment was to be managed by Rich or Hynes, and it was left to the jury as to which of them in that case was the principal and which the accessory. It was alleged that the conversion took place within a relatively short space of time by the debiting of only three cheques to the Trust Account - one to the Bank of New Zealand for $19,113.12, one to cash for $4,879.49 and one to Forbes for $50,000 said to be in repayment of the conversion alleged in Count 3. It was said that none of those cheques could conceivably have been by way of provision of replacement investment for Mrs Guiney, and Mrs Guiney had never received any documents evidencing another investment, and had not been repaid any monies at all. Proof of the conversion was therefore on very similar lines to most of the other counts.

323. By the time of the banking of Mrs Guiney's cheques, it was said that a plan or scheme on the part of Hynes had begun to emerge, and the jury was specifically directed in relation to these three counts in relation to the possibility of inferring intention on the part of Hynes from such a plan or scheme. This had particular relevance in relation to these three counts because the deposit slip was not in evidence.

324. The mere fact that no specific instructions were given as to the nature of any replacement investment, and the mere fact that there was some doubt as to which of either Rich or Hynes may have undertaken that re-investment does not mean that the conviction of both of them is against the weight of the evidence, particularly when there was clear evidence of the fact of conversion of the cheques.

325. In relation to the Shearing charges (Counts 15, 19 and 21) it is said that there was evidence to suggest that Mrs Shearing did not specify any time within which her investments were to be made and that there was no evidence of the purpose for which the money was being held at the time the conversion was alleged to have occurred. Furthermore, it is said that there was evidence consistent with innocence of Rich and that she had never met or had any dealings with Rich. Whether or not any time frame was specified for the re-investment of the monies, the fact of the matter was that there was evidence on which the jury could conclude that the conversions in fact took place by the use of the proceeds of Mrs Shearing's cheques for purposes other than those specified by her within a reasonably short space of time after the banking of the cheques, coupled with the fact that she never received either investments or money. There was evidence of purpose which she had specified. Indeed under cross-examination by Hynes she agreed that she had specified at least five particular named investments to which the money was to be applied. The fact that she had never met the appellant Rich, given the nature of allegations of his complicity which did not necessarily involve knowledge of or contact with particular clients of the firm, cannot raise such a doubt as to render the verdict unsafe or justify a conclusion that the verdicts in relation to the Shearing charges were against the weight of the evidence.

326. In my opinion the attack on the convictions on both the Guiney and Shearing counts must fail.

327. There is a further general allegation in Ground 20 in relation to all counts that the verdict was unsafe on the ground that there was no evidence that Rich had knowledge of the purpose for which the monies were entrusted, that he knew that Hynes had converted the cheques into the Company account or that he was aware that the use to which he put the money was contrary to specific instructions of the owners of the money. I have sufficiently dealt with both allegations elsewhere in relation to the knowledge of Rich. There was sufficient evidence from which knowledge on the part of Rich of the relevant essential facts could be inferred.

328. In my opinion this ground fails.

Orders

329. For the reasons I have given I would agree with the Orders proposed by Cox J in relation to each of the appeals.