R v Seller; R v McCarthy

[2015] NSWSC 1315

Supreme Court

New South Wales

Medium Neutral Citation:	R v Seller; R v McCarthy [2015] NSWSC 1315
Hearing dates:	7 and 8 September 2015
Date of orders:	09 September 2015
Decision date:	09 September 2015
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	Application dismissed
Catchwords:	CRIMINAL LAW – procedure – application by accused for directed verdict of acquittal upon basis of no case to answer – charge of conspire with intention of dishonestly influencing a Commonwealth public official - whether evidence upon which jury could convict
Cases Cited:	Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 R v PL [2102] NSWCCA 31 The Queen v Bilik (1984) 36 SASR 321 Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433
Category:	Procedural and other rulings
Parties:	Ross Edward Seller (Accused) Patrick David McCarthy (Accused)
Representation:	Counsel: P McGuire (Crown) J Stratton SC with G Antipas (Seller) P Bruckner with R Johnson (McCarthy)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Hardin Law (Seller and McCarthy)
File Number(s):	2009/2375562009/237509
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The accused are charged that:

“…between about 24 May 2001 and about 30 December 2002 at Sydney in the State of New South Wales and elsewhere [the accused] did conspire with each other and divers other persons with the intention of dishonestly influencing a Commonwealth public official, namely the Commissioner of Taxation, in the exercise of his duties as a public official.”

2. At the close of the Crown case the accused each applied for a verdict by direction upon the basis that there was no case to answer. I am disinclined to accede to those applications. My brief reasons for coming to that decision are as follows.

Legal principles

3. The applicable principles are not in doubt. As long ago as 1955 the High Court stated the position in May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658:

"When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law."

4. The question to be determined is a question of law. This was confirmed in Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433.

5. In The Queen v Bilik (1984) 36 SASR 321, King CJ said this at 335:

“The question of law is whether on the evidence as it stands the defendant could lawfully be convicted. He could lawfully be convicted on that evidence only if it is capable of producing in the minds of a reasonable jury satisfaction beyond reasonable doubt.”

6. His Honour continued at 337 in these terms:

“The case against the appellant…was circumstantial in character. The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case…in which the direct ‘evidence’ is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonable open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer.”

7. A court hearing a no case submission is bound to take the prosecution case at its highest. In Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214-214 the High Court stated:

“There is no doubt that it is a trial judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.

…

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 and Morris v. The Queen [1987] HCA 50; (1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. Nor does the existence in a trial judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process.”

8. The application of the test was considered recently in R v PL [2102] NSWCCA 31. Bathurst CJ said this at [32]:

“[32] It is also clear from the authorities that the sufficiency of evidence to warrant a conviction is to be resolved without regard to evidence which favours the accused as, for example, by qualifying, contradicting or explaining the evidence in support of a conviction (see R v R supra at 81, 84-85). Further, in a case such as the present which depends in the main on circumstantial evidence, a judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case on which the accused could be convicted even though a reasonable hypothesis consistent with innocence can be formulated: R v JMR supra at 44.”

9. I am alive to the suggestion that on one view of the evidence the jury would, and perhaps even should, find the accused not guilty of the offence charged. That is, however, not the test. As long as I am bound to proceed upon the basis that the case ought to be left to the jury if they could find the accused guilty, I consider that in this case I am bound to reject the applications. I have referred to and am required to take account of the fact that the prospect that a jury might be found unreasonably to have convicted the accused is a concern of the Court of Criminal Appeal and not of a trial judge. Whatever ultimate outcome this trial produces, it is not possible for me at this stage, proceeding consistently with binding authority, to direct the jury return a verdict of acquittal. There is at least some evidence upon which the jury could convict the accused. It is unnecessary at this stage to elaborate upon or identify what that evidence might be. I observe in passing that the alleged status of Chambers Finance Limited as “like a merchant bank” and cognate representations might qualify as examples of such evidence. I recognise immediately, however, that there are several available hypotheses consistent with innocence which could be, and which have in the course of detailed written and oral submissions already been, formulated by counsel for the accused. Undoubtedly those submissions will find a significant place in the final addresses of counsel.

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Decision last updated: 28 September 2015