R v Thompson

[1994] QCA 159

IN THE COURT OF APPEAL [1994] QCA 159

SUPREME COURT OF QUEENSLAND

C.A. No. 90 of 1994

Brisbane
[R. v. Thompson]

BETWEEN:

T H E Q U E E N
v.
ERIC WILLIAM MILLROY THOMPSON

Appellant

Fitzgerald P.
Davies JA.

Derrington J.

Judgment delivered 19.05.94
Judgment of the Court

APPEAL ALLOWED and new trial ordered in relation to all but the last count on the indictment. Application for leave to appeal against sentence refused.

CATCHWORDS:CRIMINAL LAW - Corroboration - directions to jury - documents in the appellant's handwriting should not have been put to the jury as being capable of corroborating accomplices' testimony - capacity of the documents to act as corroboration depended upon conjecture and the acceptance of other pieces of testimony - whether evidence capable of corroboration - whether direction to jury as to corroborating capacity of evidence was adequate

Counsel:Mr. T. Glynn for the appellant

Mr. W. Clark for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date:13/05/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19/05/94

This is an appeal against a number of convictions recorded in the District Court on 24 February 1994. The appellant was arraigned on 31 charges, 29 alleging wilfully false promises which induced payments of money with intent thereby to defraud and 2 alleging wilfully false promises and false pretences which induced payments of money with intent thereby to defraud. One of the 29 false promise charges was dropped for lack of evidence, but the appellant was convicted on the other 30 charges. He appealed in respect of all convictions but, at the hearing of the appeal, accepted by his counsel that there was no basis for setting aside the conviction in respect of the final count on the indictment.

The appellant, an accountant practising in Cairns, induced a number of his clients to invest substantial sums of money in a scheme which was said to involve investment overseas in shares, bonds, etc., but in fact involved betting on horse races. According to the appellant, he was unaware of the use being made of the money by the scheme principal, one Donald Gough, until 14 July 1987 and, implicitly, the relevant information was deliberately kept from him until then. According to the evidence of two others associated with the appellant in the scheme, Wallace Cameron and Sam Holt, the appellant was aware of the nature of the scheme at all material times, and reliance was placed upon discussions at a meeting between the appellant, Cameron and Holt at the Gold Coast on 24 and 25 January 1987. The principal ground argued for the appellant related to the trial judge's instructions to the jury in relation to corroboration of the evidence of Cameron and Holt.

His Honour said:

"Now in this case there is some independent evidence which is capable of supporting the evidence of Cameron and Holt on the crucial issue, namely that Thompson knew all along that Gough's scheme was a horse betting scheme. ... There are ... the documents. The agenda for the Surfers Paradise meeting, which is Exhibit 33, which has Thomson's handwriting on it and the minutes of that meeting, Exhibit 24, which were said to have been compiled by Thomson, so these documents come to you not from Cameron and Holt, they come to you on the evidence in front of you from Thomson himself. Again, they are referred to fairly extensively by Mr Clark as late as this morning. You would have no doubt about the documents that I am referring to.

...
Of course, all of these things are matters for you as to whether it does indeed support on this issue the evidence of Cameron or Holt, and as to what effect to give it is for you to decide. Just as other aspects of those documents also are for you to evaluate and decide whether, in fact, they do corroborate the evidence of Cameron and Holt. You see, I can tell you as a matter of law they are capable of doing it. It is not for me though to decide that they do or they do not, that is a question of fact and that is a matter for you to determine. It is a jury matter. Those matters in the document were referred to by Mr Clark this morning ..."

(Mr Clark was the prosecutor at the trial)

It is not necessary to set exhibits 24 and 33 out in full.

Specific items were selected by the prosecution as amounting to

corroboration, at least cumulatively.
The first item was a note in the appellant's handwriting on
Exhibit 33. Under the heading, "Points for Discussion", point
2(3) was as follows:
"2.European Capital Markets
...

(3)Tax position re monies paid in Australia".

Against that item, the appellant wrote"
"Taxable in Aust.SH & WC & EWT }
Non [or now] taxable }"
(In the course of the appeal, it was generally assumed that the

second last word was "non", not "now").

The second item was another note in the appellant's
handwriting on Exhibit 33 and the corresponding minute in
Exhibit 24. To deal first with Exhibit 33, under the heading
"Points for Discussion", point 3 was

"3.Comfort and indemnities including discussions with

syndicate."

Opposite, the appellant wrote:
"W.C. to send copy of agreement."
The entry in the minutes, Exhibit 24, was:
"Concerning the comfort and indemnities WSC was to send to SH

and EWT a copy of his agreement with D.G.. "

The third item was again a note in the appellant's
handwriting on Exhibit 33 and a corresponding minute in Exhibit
24. The handwritten note on Exhibit 33 was:

"WC to arrange for system to be held by bank and handed to him

on DG death."

The minute read:

"In relation to future security WSC was to arrange with the

syndicate for the system to be held by a bank and to be

handed to him in the event of DG's death."

The fourth item was the following minute in Exhibit 24:

"WSC agreed to talk to DG and advised him of EWT and SH's involvement to avoid problems of communication and information when WSC is overseas."

The prosecution submission concerning the first item was that the distinction drawn between the tax position of the investors and the tax position of Cameron, Holt and the appellant was consistent with the evidence given by Cameron and Holt concerning the parties' discussions with respect to tax liability on profits arising from a betting scheme, but was not consistent with tax liabilities in relation to an overseas investment scheme. It was argued that the note made by the appellant on Exhibit 33 was to be explained on the footing that the parties discussed tax liability in relation to a betting scheme and decided that (i) the Commissioner of Taxation does not require the payment of income tax on the winnings of professional gamblers (ii) the appellant, Cameron and Holt, who knew that the scheme involved gambling, would accordingly not pay tax, but (iii) the investors, who would not know the nature of the scheme, would be taxed.

The prosecution submission concerning the second item was that, if it was desired to prevent the appellant from ascertaining the true nature of the investment scheme, Cameron would not have agreed to give the appellant a copy of the agreement between Cameron and Gough which, as the Court was given to understand, revealed that betting on racehorses was involved in the scheme.

The prosecution submission concerning the third item was that the jury was entitled to infer from the use of the word "system" and, more importantly, from the request for information to be written down and held in a bank that the scheme involved horse racing rather than overseas investments.

The prosecution submission concerning the fourth item was that the jury could infer that Cameron and Holt would not have permitted direct contact between the appellant and Gough unless the appellant knew of the nature of the scheme.
Taken together, the second and third items were capable of assisting the jury to conclude that the evidence of Cameron and Holt that the appellant knew, at all material times, that the scheme involved betting on racehorses was probably correct. As such, these items were capable of amounting to corroboration: Doney v. R. (1990) 171 CLR 207. In that case, the High Court said at the foot of p.211:

"It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice: ..."

However, neither the first nor the fourth item should have been left to the jury with a direction that each was, in law, capable of amounting to corroboration. The fourth item is dependent on conjecture, not inference. There was no rational basis for a conclusion that Gough would not have kept the details of the scheme from the appellant if that was considered necessary or desirable. The position in relation to the first item is slightly more complex because the comments with respect to the taxability of profits from the scheme were related by Cameron and Holt's evidence to opinions expressed at the Gold Coast meeting, which may or may not have been correct. The prosecution made no attempt at trial to establish that those views were correct or that the comments recorded by the appellant on Exhibit 33 were inapplicable, or might not be correct, in relation to any scheme based on overseas investments. It would obviously be very difficult to do so in the abstract. In any event, the capacity of item 1 to corroborate the evidence of Cameron and Holt was dependent upon acceptance of other parts of their evidence, which is an impermissible chain of reasoning.

The trial judge's directions to the jury with respect to corroboration were also deficient for other reasons. It is sufficient to note that (i) he made no attempt to restrict the parts of Exhibits 24 and 33 which might amount to corroboration to those relied on by the prosecution, telling the jury that "other aspects" might "as a matter of law" be available as corroboration and (ii) he made no attempt to explain how the jury might properly determine which, if any parts of the documents, were corroborative in how they were to approach their task.

The appeal must therefore be allowed and a new trial ordered in relation to all but the last count on the indictment.

The appellant also applied for leave to appeal against sentence but, at the hearing, his counsel informed the Court that that application was not to be pressed if the Court upheld the appeal against conviction in relation to all but the last count on the indictment. The application for leave to appeal against sentence is therefore refused.