R v Walsh

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 70 of 2000

THE QUEEN
	v.
JOHN RICHARD WALSH

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JUDGES:	ORMISTON, PHILLIPS and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	18-21 February 2002
DATE OF JUDGMENT:	26 June 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 98

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Criminal law – Conspiracy to defraud by inducing “investment” - Multiple misrepresentations – Whether offence dependent upon any particular representation - Attempting to pervert the course of justice by making and using false documents – Extent to which jury unanimity required – Whether alternative counts required – Whether verdict uncertain.

Criminal law – Conspiracy to defraud – Mens rea – Meaning of dishonesty – Defence of belief in truth of representations – Whether test wholly subjective – Whether direction required that accused have credit for giving evidence – Whether conspiracy still available at common law – Crimes Act 1958 ss.321-321F.

Sentencing – Conspiracy to defraud involving millions of dollars – Seven years’ imprisonment not excessive – Attempting to pervert the course of justice – Cumulation not affected by error – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Coghlan, Q.C. (DPP) and Mr P. Kidd	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M. Croucher	Clarebrough Pica

ORMISTON, J.A.:

For the purpose of these applications I have had the very considerable advantage of reading in draft form the judgment of Phillips, J.A. and Buchanan, J.A. so that, for the reasons they have stated, I consider that each of the applications should be dismissed.

PHILLIPS, J.A.
BUCHANAN, J.A.:

On 19 October 1999 the applicant was arraigned in the Trial Division on a presentment but recently filed, containing one count of conspiracy to defraud and three counts of perverting the course of public justice. He pleaded not guilty. A jury was empanelled and the trial commenced. The Crown case closed on 20 January 2000. The applicant gave evidence in his own defence and called three witnesses. On 9 March the trial judge commenced his charge to the jury, and concluded it on 20 March. On 24 March 2000, the jury returned verdicts of guilty on all counts and, after a plea in mitigation, the applicant was sentenced on 31 March to various terms of imprisonment: on the count of conspiracy, to seven years’, and on each count of perverting the course of justice, to three years' one year of which was to be served cumulatively on the sentence imposed for conspiracy. The total effective sentence was thus of ten years’ imprisonment and seven years was fixed as the non-parole period. There were eight days of pre-sentence detention.

Thus, in a proceeding which ran over some 99 days, the applicant was convicted and sentenced on four counts to a significant term of imprisonment. He now seeks leave to appeal against conviction and against sentence. Mr. Croucher, who appears for the applicant but was not counsel at the trial, has done a most thorough job, having explored more than 500 pages of charge[1] and, no doubt, at least in large part, the six thousand pages of transcript which precede the commencement of the charge. In seeking leave to appeal against conviction, counsel now relies upon ten grounds of appeal, some of them subdivided but all in large part challenging the way in which the trial was conducted below, though no significant complaint was made at the time. Trial counsel enjoys advantages not shared by his successors and it is important to observe that counsel now advocating these grounds was not counsel at the trial and therefore cannot be alive to all the nuances at trial, any more than can we as the appellate tribunal. To some degree at least, the challenges now made impugn the conduct of counsel at trial and, as in cases where a challenge is made more directly to the conduct of counsel at trial, it seems to us that we should proceed with caution, mindful of the difficulties facing us in reconstructing what must have been a difficult and complex proceeding. See the comments made by this Court in R. v. Challoner[2] and in R. v. Camilleri[3] and in the High Court in Crampton v. R[4].
[1]The charge commences at p.6366 of the transcript and, after interruptions for discussion between Bench and bar, ends at p.7033.
[2](2000) 110 A.Crim.R. 102 at 103-4.
[3](2001) 119 A Crim R 106 at 114.
[4](2000) 117 A.Crim.R. 222 at 226 per Gleeson, C.J. and at 263-4 per Hayne, J.

The four counts

The four counts on which the applicant was convicted arose out of events in the early nineties when the applicant, together with others, allegedly conspired to defraud the Nauru Phosphate Royalties Trust ("the Trust") by inducing the Trust to put money into a purported investment scheme which was no more than a device by which part of that money could be directed by the co-conspirators for their own use and benefit. In all over US $60 million was “invested” by the Trust and thereby put at risk. Not all of that money was lost to the Trust because some $50 million was recovered by it; but the rest was lost and of it the applicant obtained some US $838,400 for himself. According to the applicant upon his trial, he believed that the investment was genuine and he believed that he was entitled to the money he obtained. Plainly the jury disbelieved him.

Leaving aside for the moment the 10 paragraphs of detail given under count 1, the four counts in question were to this effect:-

1.Between 1 October 1991 and 31 December 1992 he conspired with Gopal Nair, Adrian Powles, Patrick John Madden and Lin/Par Ltd to defraud the Trust by dishonestly inducing the Trust to invest money in a purported investment scheme proposed by them.
2.Between 1 December 1992 and 31 December 1993, with intent to pervert the course of public justice, he made and used false documents with the intent of impeding and frustrating a police investigation or deflecting the police from adducing evidence of the true facts. The Crown listed 23 false documents it said were created and used by Walsh, but its case was that the list was not exhaustive.
3.Between 8 July 1993 and 15 December 1993, with intent to pervert the course of public justice, he attempted to persuade Gregor Dougall to provide false information to members of the Victoria Police Force and to give false evidence in any judicial proceedings with the intent of impeding a police investigation or deflecting the police from adducing evidence of the true facts.
4.Between 1 October 1993 and 31 January 1994, with intent to pervert the course of public justice, he attempted to persuade Peter Boyle to provide false information to members of the Victoria Police Force and to give false evidence in any judicial proceedings with the intent of impeding a police investigation or deflecting the police from adducing evidence of the true facts.

The course of proceedings

The applicant was tried alone, the path to trial having been quite complicated. Initially, four men had been charged in conjunction with the applicant: Dougall, Powles, Nair and one Ross David Taylor, all of them men in their forties or fifties at the time of the offending. Lin/Par Ltd. ("Linpar") was a company incorporated in Vanuatu, the principals of which were Patrick Madden, a Canadian Q.C., and Gopal Nair. Adrian Powles was a solicitor, a partner with Allen Allen & Hemsley. The Trust was the body charged with investing the wealth generated by the exploitation of phosphate, which has for some time been Nauru’s principal resource. The management of the Trust was based in Melbourne. Gregor Dougall (named in count 3) was its administration manager and Peter Boyle (named in count 4) its secretary.

Dougall had been arrested on 7 June 1994 and committed for trial in the County Court. On 28 October 1994 he pleaded guilty to a presentment containing two counts of receiving a secret commission, one count of theft and one count of being an accessory to an indictable offence; and on 7 November he was sentenced to a total effective sentence of 24 months which was wholly suspended for the 24 months. He was further ordered to pay $207,782 in compensation to the Nauru Phosphate Royalties Trust.

The applicant was arrested and charged on 18 June 1996, and a few days later, Taylor and Nair were both arrested and charged too. A warrant issued for the arrest of Powles who was already undergoing a sentence of imprisonment in New South Wales. Powles was brought to Victoria and on 8 May 1997 he was committed for trial in the Supreme Court. On 2 February 1998, the applicant and the co-accused Taylor were committed for trial in the Supreme Court, and the co-accused Nair was committed for trial on 3 February 1998.

On 30 April 1998, the arraignment was listed of the applicant, Powles, Nair and Taylor. A presentment was filed containing some 81 counts and, more than a year later, on 26 May 1999, all four were finally arraigned on that presentment. Two of the counts were then deleted. Powles and Nair were each arraigned on one count of conspiracy to defraud, 12 counts of obtaining financial advantage by deception, 12 counts of paying secret commissions and one count of using a false document. Taylor was arraigned on 12 counts of using a false document and two counts of being an accessory to an indictable offence. The applicant was arraigned on one count of conspiracy to defraud, 12 counts of obtaining financial advantage by deception, 12 counts of paying secret commissions, 23 counts of making a false document, 22 counts of using a false document, one count of attempting to commit an indictable offence and two counts of perverting the course of public justice. We simply assume that to these counts, all the accused pleaded not guilty.

On 9 July 1999 the Crown filed over in respect of Powles. The new presentment contained one count of conspiracy to defraud and one count of paying secret commissions. Powles was arraigned on this presentment on 26 July 1999 and pleaded guilty. After a plea in mitigation, he was sentenced on 2 August to a total effective sentence of two years and six months’ imprisonment, which sentence was wholly suspended for three years.

The Crown filed over in relation to Nair too. The new presentment contained one count of conspiracy to defraud, one count of paying secret commissions and one count of using a false document. Nair was arraigned on this presentment on 6 September 1999 and pleaded guilty. After a plea in mitigation, he was sentenced to a total effective sentence of four years’ imprisonment and two years was fixed as the non-parole period.

On 14 September 1999, the Crown announced that it was not proceeding in relation to the co-accused Taylor.

On 27 September, preliminary submissions commenced in relation to the trial of the applicant. There was discussion about the Crown’s refusal to call a particular witness; the possibility of severing the counts of perverting the course of justice on the proposed presentment which had not yet been filed; whether substantive counts of paying secret commission should be included in the presentment in addition to the count of conspiracy to defraud; and whether evidence could be led by the Crown, and if so what evidence, in relation to a prior transaction involving the applicant and the co-accused Nair. A permanent stay of the trial was sought and refused. In response, however, to submissions made on behalf of the applicant and comments of the trial judge, the Crown indicated that it would file over a presentment, removing separate counts of paying secret commissions but including secret commissions as particulars of the count of conspiracy to defraud. In relation to the possibility of severing the counts of perverting the course of public justice, the trial judge indicated that in his view the counts could properly be joined and the applicant did not persist with the submission to the contrary. On 12 October 1999, the Crown did file over and that was the presentment on which the trial proceeded and on which the applicant was convicted more than five months later.

The Crown case at trial

The proceeding against the applicant reaches back to events late in 1991, for it was on 22 October of that year that the applicant was introduced to Dougall by MacSporran, a solicitor who acted for the Trust. The applicant was the representative in Australia of Linpar, a company the principals of which (Madden and Nair) were busy, according to the Crown, promoting a fraudulent investment scheme. The applicant proposed to Dougall that the Trust purchase what the applicant called “Prime Bank Instruments” from “Prime Banks” and sell the instruments at a profit. The Trust was to place an amount in US dollars in trust with Powles, who worked at the London office of Allens. When the funds were received by the solicitors, Linpar was to purchase a Prime Bank Instrument which would be delivered to Powles. The Prime Bank Instrument would then be traded every 10 days at a substantial profit, or so the matter was represented by the applicant to Dougall. In fact there were no such things as “Prime Banks" or "Prime Bank Instruments”.

After that meeting between the applicant and Dougall, a letter dated 22 October 1991 was sent to Dougall on the letterhead of Linpar, and apparently signed by Madden. The letter developed the proposed investment scheme in terms of standby letters of credit (in the letter, SBLCs). In part the letter read:

“For an investment of USD $4.4M, we will purchase for you a Standby Letter of Credit, from a Prime World Bank, with a face value of USD $5 million .... [T]he prefered [sic] option would be to trade the Standby Letter of Credit. At present day prices, the same can be traded approximately every ten (10) days and will yield (on a USD $5M. face value SBLC) a profit of US $100,000. The cost of the USD $5M. face value SBLC will be USD $4.4M., whereas the cost of the USD $10M. face value SBLC will be USD $8.7M. These SBLCs readily trade and the turn-around time, trade to trade, should be approximately ten (10) banking days per transaction or thirty (30) times per year.”

The letter went on to describe the procedure to be used. First, the Trust would place money in trust with Allens in Sydney to be forwarded to their London office for the attention of Powles. When the funds were received in London, Linpar would purchase on behalf of the Trust a standby letter of credit, which would be delivered to Allens, who would draw upon the Trust's funds to pay the cost of the letter of credit. After the letter of credit had been held for a minimum of 72 hours, Linpar would sell it, anticipating a gross profit of two per cent. A further letter of credit would then be purchased and the process repeated. The profit gained from the sale of a letter of credit with a face value of $10 million would be $200,000, and the transaction could be repeated 30 times a year. In the letter it was suggested that the profit be shared in the proportions of 50 per cent to the Trust, 25 per cent to Linpar and 25 per cent to the applicant.

Another letter dated 22 October 1991, also on the letterhead of Linpar, and signed by Madden, was sent to the Trust, extolling the benefits of a so-called Master Collateral Commitment which was said to “open vast opportunities to generate profit, far in excess than would be achieved through the SBLC rollover programme.” The Master Collateral Commitment was described thus:

“A Master Collateral Commitment is issued by a Top Fifty (50) Prime World Bank and permits the holder to have the Prime Bank (or lesser Bank) Credit Instruments issued from that broad range of banks that at all times are issuing such Instruments.”

The "Master Collateral Commitment" was another fiction invented by the conspirators, according to the Crown case. And just as there were no "Prime Banks" so there were no "Prime World Banks".

Over the ensuing weeks, the applicant had a number of informal and formal meetings with members of the Trust at the Trust’s offices. The applicant stressed that the market in which they would be operating was secret and that the banks in question would not admit of its existence if they were approached for confirmation. It was impressed upon the Trust that Linpar was able to access this market and that there was no risk to the Trust. Allens would have control at all times of either the Trust’s funds or the instrument, and it was said that the transactions were very profitable. Now, while standby letters of credit exist, they cannot be traded, and no bank instrument had the capacity to yield the vast profits promised by Linpar and the applicant, let alone without risk; nor were there covert or secret legitimate banking markets.

It was the Crown's contention that the conspiracy, which the applicant joined, was to induce the trustees of the Trust, by dishonest means, to invest moneys in the scheme to trade in "Prime Bank Instruments" and thereby to create for the conspirators the opportunity to pocket part of the moneys. (Count 1). The dishonest means alleged were set out in count 1 as follows:-

“(a) falsely representing that:
(i)Gopal Nair, Patrick John Madden and Lin/Par Limited were capable of and had the expertise to trade Standby Letters of Credit, Prime Bank Notes, Prime Bank Promissory Notes, Prime Bank Guarantees, Prime Bank Credit Instruments, Prime Bank Letters of Credit and Master Collateral Commitments (hereafter referred to as ‘Prime Bank Instruments’);
(ii)funds advanced by the Nauru Phosphate Royalties Trust would be held on trust and under the exclusive control of Allen Allen and Hemsley, Solicitors, through its London resident partner Ronald Adrian Powles;
(iii)funds advanced by the Nauru Phosphate Royalties Trust would only be applied to purchase a Prime Bank Instrument;
(iv)Allen Allen and Hemsley through its London resident partner Ronald Adrian Powles would at all times have control over either the funds advanced by the Nauru Phosphate Royalties Trust or the Prime Bank Instruments purchased with those funds;
(v)the funds advanced by the Nauru Phosphate Royalties Trust had been dealt with in the abovementioned manner and applied for the abovementioned purposes;
(vi)one or more Prime Bank Instruments had been purchased for or on behalf of the Nauru Phosphate Royalties Trust:
(vii)profits had been generated for the Nauru Phosphate Royalties Trust from rollovers of Prime Bank Instruments which he and Gopal Nair, Ronald Adrian Powles, Patrick John Madden and Lin/Par Limited were trading on behalf of the Nauru Phosphate Royalties Trust;

(b) concealing from the Nauru Phosphate Royalties Trust that:
(i)funds advanced by the Trust had not been dealt with in the manner or applied for the purposes described in paragraphs (a)(ii) to (iv).
(ii)control of the funds advanced by the Nauru Phosphate Royalties Trust had passed out of his hands and the hands of Gopal Nair, Ronald Adrian Powles, Allen Allen and Hemsley, Patrick John Madden and Lin/Par Limited.

(c) corruptly offering and giving money to Gregor John Dougall.”

On his own admission, the applicant had never purchased, let alone traded, any standby letter of credit or "prime bank note", nor had he been involved with anybody who had successfully done so.

On 23 December 1991 the Trust, acting on the representations made to it by the applicant, remitted to Allens in London the sum of US $8.7 million in order to purchase a standby letter of credit. On 31 December US $8.525 million of the sum advanced by the Trust was transferred to a Swiss bank by Powles at the request of Madden, only for it to be retransferred shortly afterwards. On 13 January 1992 the Trust's funds were paid into a Westpac account. No standby letter of credit or other bank instrument was purchased. On 15 January 1992 Powles transferred $8.55 million of the funds into an account at Barclay's Bank for the credit of the Commonwealth National Bank of Antigua, a bank which had earlier been closed by the Minister of Finance in Antigua. At this point Powles lost control of the money. It has never been recovered.

Powles and Nair told the Trust that two standby letters of credit had been purchased and sold at a profit. In March 1992 Powles wrote to the Trust stating that "a profit" of US $264,000 had been placed in the bank account of the Trust in New York. That money was, however, merely part of the funds advanced by the Trust, and did not derive from the profit on any transaction involving the purchase or sale of a standby letter of credit. Buoyed by the apparent success of the scheme, in January and February 1992 the Trust sent further funds in excess of US $20 million for investment in so-called Prime Bank Instruments.

Meanwhile, unbeknown to the Trust, Powles had also started to make unauthorized payments out of the Trust funds to himself, Nair, Madden, and the applicant (Walsh), either directly or to accounts nominated on their behalf. Funds for the benefit of the applicant were sent to a US dollar account operated by his accountants in Melbourne. He received his first deposit into that account on 3 January 1992. In this way, the applicant ultimately received a total of US $838,400 out of the funds of the Trust.

In February and March 1992, the applicant, Nair, Powles and Madden persuaded the Trust to transfer the sum of US $4.5 million to London for the purpose of purchasing a "Master Collateral Commitment", the instrument referred to in the second letter of 22 October 1991. As there is no such thing as a Master Collateral Commitment, none was purchased.

The trustees of the Trust decided to visit London in April 1992 for the purpose of investigating the trading in so-called Prime Bank Instruments. The applicant persuaded the trustees to delay the trip as Nair was not available and then sent a facsimile to Nair stating:

“GO I will ring you upon my return to the office – All now under control. Keep cool. Regards John.”

The trustees arranged a meeting with Powles, Nair and the applicant in Melbourne on 23 April 1992 to discuss the progress of the sale of "Prime Bank Instruments". The applicant, Nair and Powles met before the meeting in order to rehearse their explanations. The three agreed to withhold from the trustees the information that the first standby letter of credit had not been delivered and to persuade the Trust to advance a further sum of $20 million - and the meeting went according to plan. The trustees did not learn that the first standby letter of credit had not been delivered, and did agree to advance further funds. US $20.55 million was advanced in early May 1992 to Powles in London.

In July 1992, the applicant invited himself to accompany the trustees and MacSporran on a trip to the Bahamas and London to examine the performance of the investment scheme. He did not express to the trustees any concern about the scheme; instead he tried to convince the Trust’s solicitor in London, one Weston, of the efficacy of the scheme. The trustees were not satisfied with the results of their examination and decided to end the programme. By then the Trust had advanced some US $61 million for the purchase of "Prime Bank Instruments". Weston was instructed to recover the Trust’s funds.

Towards the middle of 1992, Powles, Nair, Madden and the applicant attempted to justify the disappearance of Trust moneys by creating an entitlement on the part of Linpar to penalties in the event that the Trust withdrew funds. According to the Crown case, the applicant persuaded Boyle (the secretary of the Trust) to write an acknowledgment on 16 June 1992 to Linpar entitling the latter to deduct “any penalty incurred”, and the applicant and Nair then set about creating documents to support the existence of a substantial liability for penalties. The documents included back-dated letters. (Part of count 2)

In late 1992, it was alleged, the applicant commenced to create false documents to support his entitlement to the Trust funds which he had received. (Also part of Count 2). The applicant persuaded Dougall to create a document in which the Trust purported to acknowledge an entitlement on the part of the applicant to a procurement fee of three per cent and to direct that the funds be transmitted to Powles in London. The letter was created on 9 December 1992 and back-dated to 2 January 1992. A draft of the letter discovered on the applicant’s computer dated it in December 1992, correctly (the Crown claimed). At the applicant’s request, Dougall back-dated other letters relating to the arrangement for payment of a procurement fee. In the course of the police investigation the applicant produced other documents written by him to various persons, confirming the procurement fee arrangement with the Trust. The arrangement was fictitious, in that nobody authorized on behalf of the Trust entered into any arrangement with the applicant to pay him a fee. (At trial the applicant’s case was that the procurement fee arrangement was made, not with the Trust, but with Linpar, an explanation which, if accepted, could have accounted for the fact that nobody in the Trust knew of the procurement fee arrangement.)

From January 1992, Dougall had been receiving large sums of money at the direction, it seemed, of the applicant. The applicant had agreed to pay Dougall the sum of $20,000 in respect of each transaction involving "Prime Banks Instruments" and payments commenced in January 1992. They were made principally from the funds of the Trust held by Powles in London. The payments were corrupt and the applicant attempted to give them an innocent appearance by characterizing them as loans made by him to Dougall from the "procurement fees". Again a number of letters were created to support this version of events, some of them written by Dougall. The Crown case was that Dougall and the applicant met on a number of occasions in late 1992 and between May and November 1993 to plan their explanation of the moneys paid to Dougall and to the applicant as loans and procurement fees. The applicant showed Dougall the documents, and they rehearsed their stories. (Count 3)

In late 1992 the applicant contacted Boyle, and they met on three occasions in November 1992 in the applicant’s car. The applicant desired Boyle to say that he knew about the procurement fee and the loans, although Boyle said that he had no knowledge of them. At a meeting on 9 November 1992 the applicant offered to pay for Boyle’s representation in civil proceedings in London if Boyle assisted the applicant in relation to his fictions of the procurement fee and loans to Dougall. The meetings were recorded by the police. (Count 4)

The applicant's case at trial

In the course of the evidence he gave at trial, the applicant conceded that there was a conspiracy by Powles, Nair and Madden to defraud the Trust, but denied that he was a party to it. The applicant said that he believed that there was a market in which standby letters of credit were traded, that large profits could be made, and that Nair, Madden and Linpar participated in that trade. The applicant agreed to become the Australian representative of Linpar and to introduce Linpar to the Trust. He met Dougall in October 1991 and after the meeting he suggested that Madden send his proposal directly to the Trust.

The applicant said that he considered himself a consultant to the Trust and claimed that he had looked after its interests at all times. He said that he first proposed a "due diligence" trip in November 1991, but despite his suggestion the trip was not undertaken. When the trustees decided to visit London in April 1992 to investigate trading in Prime Bank Instruments, he had met with a representative of the Trust who told him that the trip was to be postponed. Nair had been in a panic about co-ordinating the trip and arranging various meetings. The postponement meant that everything was then under control, which was why the applicant sent the facsimile to Nair stating “All now under control. Keep cool.”

The applicant agreed that he had met Powles and Nair on 23 April 1992, shortly before a scheduled meeting with the trustees, but he denied that it was a meeting of conspirators. Powles and Nair had discussed the fact that there had been a delay in the issue of an instrument by a bank called Burkes. The applicant was led to believe it was just a hiccup, and nothing to worry about. He did not think it important to mention that to the trustees. He did not make an agreement with Powles and Nair not to tell the Trust about it.

The applicant received copies of the letters from Linpar to the Trust relating to the imposition of a penalty for withdrawal from the trade in Prime Bank Instruments. He presumed that he had subsequently discussed the issue of penalties with a representative of the Trust, and said that the only issue was the amount of penalties, not whether they should be paid. The applicant said that he had tried to negotiate the penalty amount down. He now accepted that the device of penalties was a ruse to cover the theft of money from the Trust, but he claimed that he did not know it at the time.

According to the applicant, he told Powles to ignore the demands of Weston to recover the Trust funds and cease trading. He did so because he believed that the transactions would have been performed and that there were political reasons for the Nauruans to bring the programme to an end.

The applicant's evidence was that he was not in financial trouble in 1991 and 1992 and had no motive to become involved in the fraud. Despite the loss of his business and his family home, his family still owned substantial assets, including three units in Frankston and a holiday house at Tathra. He also received US $40,000 in late 1990 and AUS $41,000 in August 1991. Although his creditors had threatened him at one stage, nothing eventuated.

The applicant admitted receiving Trust funds that were sent to his accountant from the Allens’ account in London. He said that he believed that he was entitled to the funds under a procurement fee agreement between himself and Linpar. He thought then that they were Linpar funds. He began negotiations with Dougall for the procurement fee, but later agreed with Madden instead that Linpar would pay the fee. In the end an agreement was made with Linpar, which was acknowledged by the Trust. The applicant denied that the procurement fee agreement was made with the Trust. The statement in one of his letters that the agreement was with the Trust was wrong; nor had he ever instructed his solicitor to write, as the solicitor did, that the agreement was with the Trust, not Linpar. The draft of the procurement letter found on his computer was dated 30 December 1992 and not 30 December 1991 because he intended at the end of 1992 to continue trading in Prime Bank Instruments. He had taken some work away with him to his house at Tathra and had typed up the letter there, as a master document to prepare other letters.

The applicant denied being a party to the payment of secret commissions to Dougall. Dougall advised the applicant in January 1992 that Nair had offered to lend him money and the applicant agreed with Dougall to take over Nair’s agreement for the loan. On 20 February 1992 the applicant arranged for US $20,000 to be advanced to Dougall from his procurement fee entitlement in the Trust's London account with Allens and from May to July 1992 the applicant advanced to Dougall further sums, totalling $11,000.

In 1993, the applicant said, he was told that it was suspected that he had defrauded the Government of Nauru of $60 million, which caused him to panic. He had been dealing with Detective Sergeant Rowlings, who was in charge of the investigation, and Rowlings told him (the applicant claimed) that he needed to obtain some form of third party endorsement in relation to the procurement fee and the loans to Dougall. This had led to his meetings with Dougall and Boyle, in which he had tried to obtain what Rowlings had requested. All that he wanted Boyle and Dougall to do was to confirm to the police the true position. This was what the applicant told the jury and obviously the jury rejected it.

Duplicity, uncertainty and unanimity

We turn now to the grounds of appeal. According to the notice of application which was filed on 3 April 2000, the applicant took only two grounds: that the conviction was against the weight of the evidence on counts 1 and 2 and that the trial judge misdirected the jury on the question of dishonesty in relation to count 1. By amendment allowed on 21 December 2001, these two grounds were replaced by nine new grounds and ground 10 was added by amendment on 30 January 2002. Before dealing with the grounds of appeal separately, we say something in a general way about one of the principal submissions made by Mr Croucher which related, to a greater or lesser degree, to each of the four counts in turn. It was that the count was bad for duplicity or tainted by latent uncertainty; or, as each count alleged more than one discrete act by the applicant, that the jury were not directed sufficiently on the need for unanimity, and so the trial miscarried.

As we apprehend it, a count is bad for duplicity if it charges more than one offence; on the other hand, if the count charges but one offence and evidence is led of more than one instance of such offending, then the verdict, if against the accused, will be uncertain. This last is sometimes called latent uncertainty because it depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown. Suffice it to refer in this connection to Johnson v. Miller[5] and R. v. Trotter[6].
[5](1937) 59 C.L.R. 467.
[6](1982) 7 A.Crim.R. 8.

In Johnson v. Miller, the defendant was charged in the Magistrates’ Court in that he was the licensee of premises out of which certain persons were seen coming during prohibited hours. In line with the statute creating the offence, the complaint was amended to read "a certain person" instead of "certain persons", but the informant still sought to lead evidence that some thirty men were seen coming in or out of the premises between the times stated on the day in question. The magistrate held the complaint defective and dismissed it, a decision upheld in the High Court. Once amended to refer to only one person, the complaint conformed to the statute by charging only one offence (and so the charge was not bad for duplicity), but as the evidence led was of more than one person (and so of more than one offence) the complaint was tainted with uncertainty. Had the complainant been willing to confine the evidence to one of thirty, the uncertainty would have been removed; unconfined, the defendant was not properly apprised of "the particular act, matter or thing alleged as the foundation of the charge".[7] (It may be observed in passing that that case gave rise to difficulty in part because the offence depended not upon any specific act or omission of the defendant himself but directly upon what in other circumstances would have been no more than evidence.[8])
[7]59 C.L.R. at 489 per Dixon, J.
[8]59 C.L.R at 482 per Dixon, J.

In Trotter, the accused was charged with one count of indecent assault upon a boy but in the course of the trial the boy gave evidence of an assault in the bedroom and of an assault in the bathroom. The Crown made no election between the two and, when the jury found the accused guilty, the verdict was set aside on appeal on the ground that it was tainted with uncertainty. There was no way of knowing of which assault the jury had been persuaded; it might have been the first or the second or both, as each of the incidents relied upon, one in the bathroom and one in the bedroom, constituted, in itself, the offence as charged. Again there was no duplicity in the charge; the ambiguity arose out of the evidence. But in the course of the judgment the Court also said[9] that it was -

"... impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of the indecent assault. All members of the jury might have been unanimous on the fact that the applicant had committed an indecent assault on [the boy], but some members of the jury might have arrived at that conclusion on the basis of the bathroom assault and others on the basis of the bedroom assault.”

This difficulty of discerning unanimity in the jury on what is critical to conviction is an aspect upon which Mr Croucher seized in his submissions to us.

[9]7 A.Crim.R. at 18.

In this context unanimity refers only to the need for the jurors to agree among themselves; it has nothing to do with whether the verdict is ultimately delivered by 12 jurors or by a majority, when such is permitted. The problem (if such it be) is different from that of duplicity in the charge and uncertainty in the verdict, in that both of those relate to there being more than one offence, either charged or proved. The question of unanimity can arise when only one offence is charged and only one offence is proved but the jury is presented through the evidence led with more than one route by which to determine guilt. The question which has then arisen, in a number of cases now, is whether the jury must be directed to be unanimous, not only in the verdict, but also in the route by which that verdict is reached. Mr Croucher submitted that the jury should have been so directed in relation to counts 2, 3 and 4 and that for want of such a direction in that regard the trial had miscarried (and that that was so despite the absence of any relevant complaint about the judge's directions at the time). In relation to count 1, counsel was denied this ground of appeal because the judge had directed the jury on the need for unanimity, although, as will be seen, Mr. Croucher attempted then to turn that direction to advantage, and so a general discussion of the problem is necessary by way of introduction.

It is worth recalling the standard direction to the jury that they must be agreed in the result but need not be agreed in the manner in which that result is arrived at. This may be, and commonly is, directed to variations in the evidence when the issues, in the sense of the facts to be proved, are specific and are not in doubt; for in determining those facts one juror may accept one witness and reject another, while another juror may do the opposite. But the principle is of wider application. Thus in R. v. Clarke and Johnstone[10], a murder/manslaughter case in which a number of different possibilities were relied upon by the Crown to establish guilt, the Court of Criminal Appeal said this:-

"It is sufficient that the law established by universal practice in this Court permits a jury to reach a verdict in the way the trial Judge told the jury here. Homicide trials are a familiar example. The prosecution case of murder or manslaughter is often put in several ways involving different elements. It has never been the law that, before convicting, the jury must all be satisfied of guilt in the one way. The ordinary approach is consistent with the approach of this Court in Power [1960] V.R. 373, at p.374.”

This was applied in R. v. Levidis[11] (theft) and R. v. Eades[12] (possession of drug for sale) and it encapsulates the approach which the Crown took on this appeal, contending that the differences that arose about the way in which its case could be proved (at least in respect of counts 2, 3 and 4) were no more than variations in the evidence led to establish the necessary elements of the relevant crime and therefore something over which the jury were traditionally entitled to differ amongst themselves. The applicant contended to the contrary.

[10][1986] V.R. 643 at 661; (1986) 21 A.Crim.R. 135 at 154. See also and compare R. v. Isaacs (1997) 41 N.S.W.L.R. 174.

[11][1991] 2 V.R. 179.

[12](1991) 57 A.Crim.R. 151.

After examining a good many of the cases, we think that there are two currents of authority and the first of these is in cases of murder, manslaughter and the like. In such cases the jury have to consider the whole of the accused's conduct and to decide on the basis of it all and from among a number of different possibilities which of the elements of the offence charged are established to the required standard. The clearest example of the jury's being permitted in such cases to arrive at the result by different routes is to be found where the Crown puts its case in the alternative, being unable to choose between them. It may be alleged that the victim was killed by the accused either personally or by an aide, the evidence leaving it unclear which, and in such a case it is enough if the jury agree that it was one or the other; beyond that, agreement is not required.

That has been so, it seems[13], since Swindall v. Osborne[14] in which the victim was killed by one of two carts, the driver of one inciting the driver of the other to kill the deceased. The conviction of one driver was upheld because, if he was not the principal, he was an accessory, having incited the other. See also, on murder and manslaughter, R. v. White[15], R. v. Giannetto[16] (drawing on R. v. Thatcher[17]), R. v. Serratore[18] and R. v. Leivers and Ballinger[19]. In respect of other crimes, see also Du Cros v. Lambourne[20] (driving at a speed dangerous to the public when the defendant was either driving himself or, being a passenger, inciting the driver), R. v. Gaughan[21] (damage to a motorcar) and R. v. Fitzgerald[22] (setting fire to a scooter).
[13]R. v. Cramp (1999) 110 A.Crim.R. 198 at 207.
[14](1864) 2 Car & K 230.
[15](1989) 41 A.Crim.R. 237.
[16][1997] 1 Cr.App.R. 1.
[17](1987) 39 D.L.R. (4th) 275.
[18](1999) 48 N.S.W.L.R. 101.
[19][1999] 1 Qd.R. 649.
[20][1907] 1 K.B. 40.
[21][1990] Crim.L.R. 880.
[22][1992] Crim.L.R. 600.

At first the case of true alternatives may seem obvious enough; but if the uncertainty stems from a conflict between witnesses it may well be that individual jurors might arrive at a more definitive result, and not necessarily the same definitive result, depending upon whose evidence is accepted and whose rejected. Nor does the case of true alternatives stand alone; for in R. v. Cramp[23], the accused, who was found guilty of manslaughter, had allowed a teenage girl to drive his car after plying her with drinks and urging her to speed, doing so for more than three hours. The case was presented on the basis that death resulted from the accused’s unlawful and dangerous act, or from his gross negligence, or from both. No direction was given that the jury had to be unanimous on the relevant basis of guilt, and the conviction was upheld by the Court of Criminal Appeal in New South Wales. In short, this was said to be because the jury were obliged to consider the whole of the offender’s conduct in deciding whether he caused the death by his unlawful and dangerous act or by his gross negligence and that, while the process of reasoning was different, each result rested on substantially the same factual basis. What was different was "the legal formulation of liability"; the alternative bases of liability "did not involve materially different issues or consequences", an expression earlier adopted by the Court of Appeal in Queensland in Leivers and Ballinger[24].
[23](1999) 110 A.Crim.R. 198.
[24][1999] 1 Qd.R. at 662.

Leivers and Ballinger was a case of murder in which one of the essential issues raised for the jury was whether the appellant knew that the deceased was to be murdered or believed only that he was to get a severe beating (with murder as its probable consequence). As guilt on the first basis necessarily subsumed guilt on the second, there was no need, it was held, to require that the jury be unanimous about the one or the other; but it was otherwise, suggested the President and Moynihan, J.A. (drawing upon the opinion of Lamer, J. in Thatcher) "if the alternate bases of criminal liability ... involve materially different issues or consequences"[25]. In the later case of R. v. Dally[26], Smart, A.J., speaking for the Court of Criminal Appeal in New South Wales[27], disagreed with this suggestion[28], Dally itself being a case of manslaughter consequent upon provocation or alternatively manslaughter by an unlawful and dangerous act - although once again the court was of opinion that any juror who was satisfied of the first must also have been satisfied of the second[29]. It may be noted that in R. v. Boreman[30], where the Court of Appeal in England considered that a direction for unanimity was needed when there were two possibilities, discrete in time, as to the cause of the victim's death, the court none the less found no miscarriage because on the facts the jury must have been in agreement; contrast R. v. Carr[31] in which it seems that such a finding was not open.
[25]Perhaps R. v. Carr [2000] 2 Cr.App.R. 149 should be seen as an example of this.
[26](2000) 115 A.Crim.R. 582.
[27]At 591, the practice in New South Wales was said to accord with the practice in Victoria as described in Clarke and Johnstone [1986] V.R. 643 at 661.
[28]At 592.
[29]At 592.
[30][2000] 1 All E.R. 307 especially at 317.
[31][2000] 2 Cr.App.R. 149 at 156-158.

Before proceeding, we mention the contrast with Cramp which is afforded in Victoria by the decision of the Court of Criminal Appeal in Beach[32]. That was a case of culpable driving causing death, an offence created by s.318 of the Crimes Act 1958 in which four separate types of culpable driving are identified: reckless (as defined), negligent (as defined), under the influence of alcohol, and under the influence of a drug. Under s.318(3) a presentment for culpable driving must specify which form of culpability is relied upon and in Beach the Crown alleged negligent driving or driving under the influence of alcohol and relied before the jury upon both. In R. v. Horvath[33] it had been established that s.318 creates but one offence and in Beach it was accepted that, although the driving in that case might have fallen into more than one category, it was equally clear that that could not result in the commission of two offences of culpable driving with respect to the same death. The court considered that by chance it was apparent in that case from the surrounding circumstances that the jury must have been agreed upon the form of culpability which led to the death, but in a case where that could not be said the court was of opinion, albeit by way of obiter dictum, that a verdict of guilty could not properly be sustained in the absence of a direction to the jury that they must be agreed upon at least one form of culpability.[34]
[32](1994) 75 A.Crim.R. 447.
[33][1972] V.R. 533.
[34]See also but compare Boreman, supra.

In so concluding, the court said[35]:

"As a matter of statutory interpretation, it would be reasonable to conclude that Parliament intended that an accused person is not only entitled to know upon which basis or bases his alleged culpability is claimed to have arisen, but also and by implication, where guilt is denied, to a jury verdict on the basis of at least one of the categories so designated.”

The requirement for a direction to agree on the form of culpability seems in contrast with the position adopted in Cramp, but perhaps that difference is attributable to the terms of the statute creating the offence[36]. In Beach it could perhaps be said that the categories relied upon, founded as they were in the statute itself, were altogether disparate (in that case, negligence on the one hand and driving under the influence of alcohol on the other), whereas in Cramp the facts of the unlawful killing were more of a piece. We wonder, however, whether what was said in Beach would have as much force where the Crown case was of driving under the influence either of alcohol or drugs (or perhaps both) and the difference lay in a conflict of opinion between experts. But we leave that aside; for the position under s.318 of the Crimes Act is at least capable of distinction.

[35]75 A.Crim.R. at 453.

[36]In Beach, the Court expressly acknowledged the authority of Clarke and Johnstone: see 75 A.Crim.R. at 454-5.

To return to Cramp: in arriving at the conclusion that unanimity was not required of the jury on the precise basis of liability, the Court of Appeal in New South Wales referred not only to those cases involving murder and manslaughter to which we have already referred, but also to another line of cases which, by and large, concern crimes of dishonesty, and in particular obtaining property by means of a false misrepresentation - a line of cases which might properly be thought to be closer in kind to the present. Although, so far as presently relevant only one offence was charged, the cases to which we now refer "have typically involved a prosecution allegation that the accused committed a number of discrete acts, any of which would entitle the jury to convict, and an invitation to convict on all or any of them" (to use the description adopted by Barr, J. in Cramp[37]). The question, which has, it seems, provided fertile ground for argument in England, is whether the jury must be unanimous on at least one of the discrete acts, and the same one. In Cramp some of the cases are rehearsed, and we mention R. v. Agbim[38], R. v. Brown[39], R. v. Flynn[40], R. v. More[41], R. v. Phillips[42], R. v. Price[43] and R. v. Mitchell[44].
[37]At 209.
[38][1979] Crim.L.R. 171.
[39](1984) 79 Cr.App.R. 115.
[40](1985) 82 Cr.App.R. 319.
[41](1988) 86 Cr.App.R. 234.
[42](1988) 86 Cr.App.R. 18.
[43][1991] Crim.L.R. 465.
[44][1994] Crim.L.R. 66.

In Agbim a medical practitioner was charged with six counts of procuring the execution of a valuable security by deception. The offences related to claims he had submitted to the area health authority for financial aid in respect of ancillary staff whom he employed in his practice. Sometimes he claimed he had paid higher wages than in fact were paid; sometimes he claimed for persons who had not been employed at all in the practice; and sometimes he claimed that those named had worked longer hours than was the fact. Having been convicted, he appealed and his main ground was that the jury had not been directed that they could not find that any one of the claim forms mentioned in the indictment was not true and correct unless they were all agreed upon one, and the same one, of the many pieces of evidence led by the Crown to prove falsity. The appeal was dismissed. It was held that each juror was bound only to deliver a true verdict “according to the evidence” and that one juror did not have to take the same view about the details of the evidence as every other juror. The case is only noted in the Criminal Law Review, not reported in full: yet it seems plain enough that the distinction drawn was between the evidence in support of the charge and the elements of that charge. The charge was procuring an advantage by deception by means of a fraudulent claim: but whether fraudulent as to the amount of wages paid, the persons employed or the hours worked, that was only incidental and did no more than provide the jury with alternative routes of arriving at the same result.

In Brown, the appellant was charged with fraudulently inducing investments contrary to a section of the Prevention of Fraud (Investments) Act 1958. The particulars were that he had fraudulently induced four persons to enter into agreements to acquire shares in a company, by making misleading statements. The jury were told, in answer to a question, that it was sufficient if all agreed that there was a dishonest inducement, even if they differed as to the statement in the particulars upon which they relied as the inducement. The appellant was convicted but appealed successfully. The Court of Appeal held[45] that -
[45]At 119.

“where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any of them is proved; but ... any such matter must be proved to the satisfaction of the whole jury.”

Agbim is distinguished in the following passage of the judgment[46]:
"For the prosecution it was contended that the direction was in accordance with the decision in Agbim [1979] Crim.L.R. 171. However, that case is not an authority for the proposition that the jury need not be agreed as to an essential element of the offence, but only that they need not be agreed as to the parts of the evidence which lead them to the conclusion that the ingredients of the offence have been made out.
Counsel for the appellant was correct in his submission that it is a fundamental principle that in arriving at their verdict the jury must be agreed that every single ingredient necessary to constitute the offence has been established. The false statement is an essential ingredient.”

Thus the difference is plain. In Agbim, the essential element was the making of the fraudulent claim (and the particulars of the fraud were but a matter of evidence), whereas in Brown, the making of a false statement (as identified in the particulars) as an inducement to invest was an essential ingredient on which the jury had to be agreed.

[46]At 117.

In Price the appellant was charged with dishonestly obtaining property by deception, in count 4 by making three specific representations, any one of which would have supported the offence charged. As in Brown, it was accepted that the jury had to be unanimous about at least one, and the same one, of the representations; but, as in Brown, that was no doubt because the charge itself appears to have included the making of a representation as an essential ingredient. At all events that was how the matter was approached, the court making the comment incidentally that Brown "had been the subject of much comment” and “was fast becoming one of the pitted battlefields of the criminal law”.[47]
[47][1991] Crim.L.R at 466.

More was another case of obtaining property by deception in which a number of false representations were relied upon and the appellant was convicted. The Court of Appeal dismissed the appeal because, inter alia, there was no discernible risk of different findings by different members of the jury in that the representations “though grammatically disparate, in fact stood or fell together”[48]; while the House of Lords saw it as common ground at the trial that, subject to the defence of duress, the appellant had obtained the property in question by deception. The only live issue had been whether the prosecution could negative duress and so there had been no need to establish the ingredients of the offence otherwise, which made the correctness of Brown irrelevant. The case did serve to emphasise, however, that whether a particular direction for unanimity was necessary in any given case depended “essentially upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”[49]. See also and compare Flynn (a charge of being in possession of an offensive weapon as defined, when the definition was expressed in the alternative) and Phillips (where the defendant was charged with conspiracy and the jury did not have to be agreed on the identity of the other conspirator or conspirators).
[48]86 Cr.App.R. at 246.
[49]86 Cr.App.R. at 252 per Lord Ackner.

Although Mitchell is a case which is sometimes considered amongst the foregoing, it is, we think, different. The appellant was charged with unlawful harassment, contrary to statute. A number of separate and different acts were alleged, each amounting to unlawful harassment, and we should have thought therefore that this was a case involving, if not duplicity, then uncertainty. In other words, more than one offence was involved. Not surprisingly, the Court of Appeal held that, in order to convict, the jury should have been in agreement upon one of the acts alleged, and the same one of them, and that, in the absence of a direction to that effect, the conviction had to be quashed. The court spoke there of the need for the jury to agree upon “the particular ingredient which they rely on to find the defendant guilty”[50], that is, upon that essential element which was critical to guilt. Much the same might perhaps be said of R. v. Smith[51], a case of affray which, while it may derive from a continuing course of conduct, was in that case divided between a group of incidents inside the house and another outside the house. The risk that the jury had not been unanimous about one or other meant that the conviction had to be quashed. Again, this might have been a case in which, although one count was charged, the evidence led was of two offences, not one, and hence the verdict was uncertain. See also and compare R. v. Houlden[52] (in which the appellant was charged with violent disorder and a number of separate and discrete incidents, amounting to violent disorder, were put before the jury).
[50][1994] Crim.L.R. at 67.
[51][1997] 1 Cr.App.R.14.
[52](1994) 99 Cr.App.R. 244.

To sum up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on “unanimity” about one or other or more of those bases, at least if they do not “involve materially different issues or consequences”. (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales[53] - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend “upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.
[53]Dally 155 A.Crim.R. at 591.

In R. v. Hancock, Warner and Michael[54], the appellants were charged with conspiracy to defraud. One was the director of a company which sold agencies to individuals, one the general manager of the company and the third, the sales manager. The particulars of the offence in the indictment alleged that the appellants had conspired to defraud people who were or became agents of the company, listing ten different dishonest and false representations or concealments. The appellants were convicted and appealed on the ground that the judge had failed to direct the jury about the need for unanimity upon at least one of the particulars set out in the count. The appeal was dismissed. After canvassing the cases including Agbim, Brown and Price, Stuart-Smith, L.J., speaking for the Court of Appeal, said[55]:-

"The question therefore is whether each of the particulars in the count constitute an essential ingredient of the offence charged, such that if any one of the particulars was proved the accused is guilty of the offence. Or as Mr Farrer Q.C. put it: is there a real risk of different jurors convicting of different offences encompassed within the single count? The answer in our judgment is plainly ‘No’. The essential ingredients of the offence of conspiracy to defraud, or what the Crown had to prove to establish the actus reus of the offence is that each of the accused has entered into an agreement to defraud the agents. It was necessary to prove that there was an agreement to act dishonestly to prejudice the agents and that each of the accused was party to that agreement.
Since the case of Landy (1981) 72 Cr.App.R. 237; [1981] 1 W.L.R. 355, in a case where conspiracy to defraud is alleged, the Crown are required to set out sufficient particulars of the offence to enable the defence and the judge to know precisely, and on the face of the indictment itself, the nature of the prosecution case and to stop the prosecution shifting their ground during the course of the case. But simply because particulars of an offence are given does not mean that those particulars are an essential ingredient of the offence. In a case such as this the particulars do no more than specify the nature of the case the prosecution seek to prove and the principal overt acts upon which they rely to invite the jury to infer that there was a dishonest agreement and that a particular defendant was a party to it.”
[54][1996] 2 Cr.App.R. 554.
[55]At 559-560.

As will be seen, these propositions are applicable here and serve to dispatch some of the grounds taken on this application for leave to appeal - to which we now turn.
Ground 1 - duplicity in count 1

Ground 1 in the amended notice of application reads as follows:

"A miscarriage of justice resulted from the trial on count 1 because:
a.the count was duplex or, as left to the jury, involved more than one conspiracy to defraud – for example, a conspiracy to defraud based on depriving the Trust of funds and another based on inducing the Trust to invest in the scheme;
b.the trial judge’s directions failed sufficiently to isolate all possible conspiracies to defraud."

Essentially, Mr. Croucher’s complaint was that, as pleaded, count 1 involved more than one conspiracy to defraud. He pointed out that, as put to the jury, count 1 was said to describe a conspiracy either to induce the Trust to invest in what might be called shortly the fictitious scheme, or to deprive the Trust of funds. Mr. Croucher called in aid a document handed by the judge to the jury, Exhibit J2. He accepted, as he had to in relation to count 1 at least, that after mentioning these two ways of regarding the conspiracy, the judge had expressly directed the jury that they must be unanimous if they chose one form rather than the other. But at no stage, he pointed out, was the presentment amended to allege these “separate conspiracies”, nor was an election made by the Crown between them. There was therefore duplicity in the pleading and, in consequence, uncertainty in the verdict.

In our opinion, however, the submission misunderstands the charge which was laid. Count 1 alleges a conspiracy to defraud the victim “by dishonestly inducing the said Trust to invest money in a purported investment scheme proposed by” the alleged co-conspirators. As the case was presented by the Crown, the Trust, having been induced by dishonest means to invest in the scheme afoot, was then to be at risk of suffering loss in either of two ways: either by the conspirators themselves taking what was not theirs to take (which happened) or more simply by the Trust's attempting to make the "investment" to which the conspirators led them. Either way, the risk was obviously not one that the Trust would have even contemplated, let alone taken, had it not been for inducement by the conspirators. The essence of the scheme alleged by the Crown lay in cheating the Trust out of its funds by inducing it to invest funds in a manner which exposed it to twin dangers: that the conspirators would divert money to their own use and that money would be lost because of the risks inherent in attempting to purchase from unregulated bodies in distant lands what was not capable of being sold. There was none the less but one conspiracy to defraud the Trust by dishonestly inducing it to invest its funds in the scheme being advocated by conspirators, to its prejudice. As we see it, the alternatives identified by Mr. Croucher were no more than particulars, as disclosed by the evidence presented to the jury, of what was but the one offence, the agreement to defraud the Trust. As seen in Hancock, the essential element of such an offence is the agreement to act dishonestly to the prejudice of the Trust. That was what was charged; it was charged as one offence and there was no duplicity. Nor did that form of pleading lead to uncertainty in the verdict. Indeed it might be that the judge’s direction as to the need for unanimity among the jury if they chose between the two ways in which the Trust might have been defrauded was not necessary, but if that was error it was an error in favour of the applicant.

Mr. Croucher’s next submission in this regard focussed on the dishonest means relied upon in the pleading of count 1. There were the false representations (and seven of these were alleged); there was the concealment of facts (and two were alleged) and there was the bribing of Dougall. If all of this is read seriatim, there were ten particulars given of the dishonest means by which the Trust was to be induced to invest, and so defrauded. Here it seems at least equally obvious that the pleader was descending to particulars: these were the overt acts which evidenced the conspiracy and these were means adopted to dishonestly induce the Trust to make the investment in question. The judge told the jury that it was enough if they were satisfied about any one of these means and his Honour gave the jury a clear direction that, if they distinguished between the means, they must be unanimous in their opinion about which was adopted, and adopted dishonestly. Hancock was a case like this, of conspiracy to defraud those who were or became the company's agents and to do so by means of a number of dishonest misrepresentations; and there the Court of Appeal held that the several representations relied upon were not an essential element of the offending, so that a Brown direction was not required in respect of each. And so it is here. Dishonesty was of course an essential ingredient of the offending, but as to that the Court said in Hancock[56]:-

"Dishonesty is an ingredient in many offences; it is something upon which the jury must be satisfied upon all the evidence in the case and each juror may be satisfied by accepting different pieces of evidence, as Lawton L.J. pointed out in Agbim. This therefore is an essential ingredient in respect of which a Brown direction is not required.”

On that basis, the judge's direction for unanimity was not needed but, if it was error, it was, again, error in favour of the accused.

[56][1996] 2 Cr.App.R. at 559.

Because of the judge's specific direction for unanimity, Mr. Croucher did not advance much argument over the ten descriptions given in the pleading of the dishonest means of inducing the Trust to part with its money. More emphasis was placed upon the dates relevant to the making of the conspiracy. As put to the jury, the conspiracy was entered into by the applicant either on or about 22 October 1991 (when the applicant first talked with Dougall), or alternatively, at least before 23 April 1992 (when the trustees met in Melbourne to discuss progress in the sale of "Prime Bank Investments" and, after hearing only what the applicant, Nair and Powles had first determined between themselves to say, agreed in consequence to advance a further US $20.5 million). As Mr. Croucher pointed out, the false representations were somewhat different in kind, the first four relating to the capacity and expertise of those involved and what would happen should an investment be made as was being promoted to the Trust, and the last three being what had happened to the moneys once invested. The last three could not, he submitted, have been relevant to a conspiracy entered into on or about 22 October 1991, a date before the investment of any money by the Trust. They were relevant only to what happened after investment, not before it.

But again, this seems to mistake the nature of the charge. Count 1 charges conspiracy between 1 October 1991 and 31 December 1992 and it was the Crown case that there was a continuing, or ongoing, conspiracy of the nature described. There was not to be but one investment, but a first investment and further investments of money in the scheme being propounded. The conspiracy was to induce the Trust to make those investments, from time to time, and to induce it to do so by dishonest means. The dishonest means thus related not only to the capacity of those involved and the nature of future investments; they related also to what had been done with early investments when further investments were under consideration. Concealment of the facts involving what had happened was part and parcel of the dishonest means, and these were alleged in paragraph (b) under count 1. We see no difficulty in the form of count 1 in that regard: the charge is not bad for duplicity, nor is there uncertainty in the verdict. The jury had to be satisfied that the applicant had been party, between 1 October 1991 and 31 December 1992, to a conspiracy to defraud the victim by inducing it, dishonestly, to invest money in the scheme being advocated. That was the charge, and the only charge. The rest described the dishonest means allegedly adopted and, to the extent that those means were adopted, the overt acts done in furtherance of the conspiracy.

One other point was raised in the course of argument, although in the end we do not think that it was pressed. Early in the charge the judge directed the jury that they need not all agree upon the identity of the applicant’s co-conspirators: it could be any one or more of those with whom he was alleged to have conspired. (Such a direction accords with the decision in Phillips[57], where the Court of Appeal held that when the charge was of conspiracy, it was enough that the jury agreed that there had been a conspiracy between the accused and one other at least, without their having to be agreed on the identity of the other or others.) It was then pointed out to the judge that in this case it was admitted by the applicant that there had been a conspiracy between the co-conspirators whereupon the judge corrected the charge, pointing that out to the jury and telling them that in those circumstances the only question for them was whether the applicant had joined in that conspiracy. With whom he dealt did not matter: there was no live issue about the identity of the person or persons with whom he had conspired. There was surely no error in this regard. Therefore there is nothing in ground 1.
[57](1988) 86 Cr.App.R. 18.

Ground 2: count 1 was improper or irregular

Ground 2 reads as follows

"A miscarriage of justice resulted from the trial on count 1 because a count of conspiracy to defraud was improper and irregular in circumstances where performance of the agreement constituting the alleged conspiracy would have established a statutory conspiracy and/or substantive offences.

As explained by Mr. Croucher, the submission was that the conspiracy charged, although charged as a conspiracy at common law, could – and therefore should – have been charged as a statutory conspiracy: that is, as a conspiracy either to obtain property by deception or to obtain financial advantage by deception. In so submitting, counsel took us to the provisions of the Crimes Act 1958 which, by amendment, constructed the crime of conspiracy, supplanting at least in part the crime of conspiracy at common law. He took us in particular to ss.321, 321D, 321E and 321F, referring also to the like provisions in England upon which the sections were based: see ss.1 and 5 in particular of the Criminal Law Act 1977 (U.K.) which were considered in R. v. Ayres[58] and, importantly, revisited in R. v. Cooke[59]. He took us also to the Criminal Law Working Group’s Report on Conspiracy tabled in Victoria by the Attorney-General on 10 August 1982 and which gave rise to the introduction of the sections in the Crimes Act just mentioned.
[58][1984] 1 A.C. 447.
[59][1986] 1 A.C. 909.

It is plain enough that s.321 of the Crimes Act, as amended, does create the statutory offence of conspiracy, that is to say, conspiracy to commit a statutory offence. Similarly, it is plain enough that s.321 abolishes conspiracy at common law, but preserves conspiracy to cheat and defraud and conspiracy to defraud, and that s.321D applies the elements of statutory conspiracy, as set out in ss.321(2) and (3), to conspiracy to defraud. Mr. Croucher submitted, in line with Ayres, that where conspiracy was disclosed to commit a statutory offence within s.321, there was no room also for conspiracy at common law (whether to cheat and defraud or simply to defraud as alleged in this instance). But it is by no means clear that the Victorian statute does provide for such exclusivity. Although s.321F, like s.5 in England, contains the qualified abolition of the offence of conspiracy at common law, s.321F(2) does not contain the words with which s.5(2) concludes and upon which some reliance was placed in Ayres. But that apart, in Victoria the construction advocated by counsel seems to be denied by s.321E(3), which (having no equivalent in England so far as we can see) provides expressly that a person is not liable to be convicted in respect of the same agreement of both conspiracy under s.321 and common law conspiracy. It may be, as submitted, that conspiracy at common law no longer exists save as conspiracy to cheat and defraud or conspiracy to defraud, but s.321E seems to recognise that there is at least an overlap between what remains of common law conspiracy and the statutory offence of conspiracy. If it matters, so much is borne out too by paragraph 54 of the Parliamentary Report on Conspiracy.

Accordingly, we would reject the construction placed upon the relevant provisions of the Crimes Act by Mr. Croucher. We do not accept that if the conspiracy alleged here could have been pleaded as a conspiracy to obtain property by deception or a conspiracy to obtain financial advantage by deception, that necessarily denied to the Crown the opportunity to plead the case as one of conspiracy at common law to defraud. Indeed, we are by no means clear that the suggested counts of conspiracy to commit specific offences would have covered the whole of the field, as it were, given the nature and extent of the conspiracy to defraud relied upon here; and if that were so, what was said in Cooke in reconsideration of Ayres would indicate that even in England the common law charge of conspiracy would not be excluded. In the result, count 1 cannot be said to be improper or irregular because of the provisions of the statute - and that leaves Mr. Croucher’s alternative submission that in this case common fairness dictated that the charge should have been laid under the statute, and not at common law.

In this regard Mr. Croucher made a number of points. First, he said, this was an extraordinarily complex case and therefore the statutory count (or counts) ought to have been preferred as the simpler. Secondly, he said, the maximum penalty for conspiracy to steal (if that was charged) or conspiracy to obtain property by deception, was ten years' imprisonment and five years' respectively, whereas the maximum penalty for conspiracy to defraud at common law was either at large or was 15 years’ gaol (if recent amendments were applicable). Either way the applicant should not have been exposed, he submitted, to any greater penalty than that which was prescribed for the most appropriate charge under the statute. Even if two charges had been laid under the statute instead of one at common law, there must have been a degree of concurrency, he submitted, which would have led to sentences less than that imposed in this instance.

It is particularly significant in this regard that no such submission as is now made to us was made at the trial; in particular no objection was taken below to the form of count 1 because of the statutory provisions. It was not submitted to the trial judge that the charge should have been, not of conspiracy at common law, but of conspiracy under s.321 of the Crimes Act. Mr. Croucher submitted that the failure of counsel to mention s.321 to the trial judge reveals oversight on his part, but we are not certain. Trial counsel was quite senior and very experienced, a specialist in the area of criminal law and practice, and, given that there had been a deliberate move before the trial away from the presentment containing more than 70 counts of some particularity to four counts of a more comprehensive kind, it might well have been that counsel saw forensic advantage in the way in which the offending was in the end being pleaded. Even one count of conspiracy at common law might well have appealed as being preferable to two counts of a statutory offence (even if the latter did cover the field). That is of course mere speculation on our part, but we would be loath to attribute oversight to such experienced counsel merely from the fact that no express reference was made, at any stage in the trial, to s.321 of the Crimes Act. Moreover, the submission of unfairness in the framing of the presentment is pre-eminently a submission that ought to have been made below (where it might have been cured before the start of the trial) and not now for the first time after the conclusion of the trial. Trial counsel might have had good reason for not making the submission, especially as the trial augured well to be complicated enough, but the decision was essentially for him. Trial counsel remaining silent on this issue, we do not think that on this appeal we should now entertain for the first time, and at the instance of new counsel, the submission that the framing of count 1 was unfair to the accused. In short we are not prepared to find error below on that account.

There is therefore nothing in ground 2.

Ground 3: failure to leave alternative counts

Ground 3 alleges error on the part of the trial judge in -

"... failing to leave to the jury an alternative or alternatives to count 1, such as obtaining financial advantage by deception, conspiracy to do the same, theft and paying secret commissions.

Under this heading, Mr. Croucher harked back to his earlier submission that there were at least two distinct conspiracies involved in the allegations in count 1, which, he said, “in turn raises the question of leaving alternatives to count 1”. His complaint, in essence, was that the applicant, once convicted, could never know which of the numerous alternative bases for conviction were relied upon by the jury, and, as happened here he said, whether the judge’s findings for the purposes of sentencing were less favourable than the jury’s findings. Of course one cannot know whether the judge’s findings were less favourable than the jury's findings: his point was, we think, that without knowing the particular basis upon which the jury proceeded, there was a real possibility that the judge’s findings were less favourable than the jury’s.

First, this last is not ordinarily thought to be of any consequence, for the judge is not uncommonly left ignorant of the precise basis of the verdict after a jury trial (as the recent decision of the High Court in Cheung v. R.[60] demonstrates). Moreover, Mr. Croucher conceded, as indeed he had to, that the possible alternatives were so numerous in a case so complex as this as to make the task unwieldy. Having now read the transcript of argument before the trial, he very frankly told us that he would no longer be contending “that substantive counts should have been left in the alternative”. He did persist, however, in a submission that “conspiracy counts reflecting key allegations could have been left” in the alternative, count 1 being split perhaps into two counts of conspiracy, one based on deprivation of funds and the other on inducing further investment.
[60](2001) 185 A.L.R. 111. See also R. v. Isaacs, supra.

"Now taking those two scenarios [that is, the twin objectives], what I said still holds I think; that you could not convict the accused because you had not reached a unanimous verdict as to a particular conspiracy, the conspiracy being defined by reference to the objects of the conspirators and the dishonest means employed. That is, what they agreed to set out to achieve, and the methods they agreed to use. That is what defines ultimately the conspiratorial agreement.”

Despite these alternatives, the elements of the crime charged were still comprehended: an agreement, to which Walsh was a party, to defraud the Nauru Trust “by dishonestly inducing the said Trust to invest money in a purported investment scheme” by means of false representation, by concealing facts or by corruptly offering and giving bribes. The elements of the offence included both the objectives and the means and so long as the jury were agreed on the objective and on the means, and satisfied that the means were dishonest, and that the applicant intended to induce the Trust to act to its detriment by such dishonest means, that was enough. In our opinion that is established by the cases to which we referred much earlier in this judgment. In that context it was true that only one of the dishonest means had to be established and there is nothing in ground 4(d).

[70]At 6421.

In the course of the foregoing we have dealt with ground 4(e) and ground 4(f). There is nothing therefore in ground 4.

Ground 5: mens rea

Ground 5 reads:-

"The learned trial judge erred in his directions on the mens rea required for count 1, and in particular he erred:
a.in directing to the effect that recklessness was a sufficient head of mens rea for the purposes of conspiracy to defraud;
b.in failing to direct to the effect that only intention based on knowledge is a sufficient head of mens rea for the purposes of count 1."

Here, Mr. Croucher submitted that mere recklessness was not sufficient to establish the necessary mens rea for conspiracy to defraud at common law. He referred us to Peters v. R.[71] and to Giorgianni v. R.[72]. Again he relied upon ss.321D and 321(2) of the Crimes Act which, as he put it, insisted upon intention: subjective intention was necessary and recklessness was not enough (as it was not enough in the case of aiding and abetting or attempt).
[71](1998) 192 C.L.R. 493.
[72](1985) 156 C.L.R. 473, especially at 506-7.

But there is nothing in the charge to the contrary. The genesis of this complaint lay in the way in which the twin objectives were described to the jury. Overall, the conspiracy alleged was one to induce the Trust, by dishonest means, to act to its detriment but, as the judge said, the Crown put the objectives in two ways: first to deprive the Trust of its funds and additionally or alternatively, to induce the Trust to invest, thereby adopting the risk of economic loss “which risk the Trust would or might not have accepted had it known the true facts”[73]. Mr. Croucher submitted that the words “or might” were entirely inappropriate, improperly introducing the element of recklessness. He did not cavil at the description of the objective as inducing the Trust to invest and thereby accept the risk of economic loss which it "would not have accepted" had it known the true facts; the error, he submitted, lay in extending that to “would or might not have accepted”.
[73]At 6391.

Let us say immediately that we view this submission with particular disquiet. The trial went for 99 days and the charge itself ran over some seven days. If the words "or might" introduced error, they were used in this context but once and we have no doubt but that they occasioned no miscarriage of justice. The jury, we are sure, would never have latched on to their significance in the way that counsel has in his careful argument. To suggest otherwise borders on the absurd. But anyway we think that there is nothing in the point.

In our opinion the submission confuses two things. The relevant intention was to defraud the Trust and that, as the jury were told, was to induce the Trust, by dishonest means, to act to its detriment. The intention was an actual intention, and recklessness had no part to play in that. As already explained more than once, there were two ways in which the Trust might have acted to its detriment: either by being deprived immediately of its funds or by exposing those funds to a risk which otherwise it would not have considered. Putting aside the first of these two alternatives for present purposes, the objective was to induce the Trust, by dishonest means, to risk its funds in a way which would have remained foreign to it but for the intervention of the conspirators and the use by them of dishonest means. Whether that is described as a risk that it would not have undertaken or might not have undertaken seems to us of no significance; it comes to the same thing in this context. Plainly the judge thought so and with respect we agree. And that has nothing whatsoever to do with the notion of recklessness as an alternative to actual intention. Indeed the notion, inherent in the submission, that the Trust might have considered making this investment had the conspirators not acted, is nonsense; as we apprehend it there never was a relevant market (and so no possible investment in that market) for the Trust to consider. The whole idea of the proposed "investment" was a fraud. There is nothing in ground 5.

Ground 6: applicant’s evidence

Ground 6 reads:-

"The learned trial judge erred in failing to direct the jury to the effect that applicant was not bound to give evidence and that they were entitled to give him credit for taking the oath and submitting himself to cross-examination."

The complaint is thus about the judge's failure to direct the jury that they might allow the applicant credit for his having given evidence on oath. In such a long and complex trial, a decision to expose himself to cross-examination “must have been a difficult one” for the applicant, submitted Mr. Croucher, and therefore it should have attracted an appropriate direction to the jury that they might give him credit for doing so. Mr. Croucher frankly conceded that in South Australia King, C.J. observed that a judge was perfectly entitled, if he sees fit, to say nothing by way of commendation in such circumstances: R. v. Robinson & Tiplady[74]. See also R. v. Reci[75], R. v. Jenner and Matthews[76], R. v. Hyatt[77] per Winneke, P. and R. v. Taafe[78] per Charles, J.A. In Victoria, counsel pointed out, whenever an accused gives evidence the jury is almost invariably told about the choices open to him or her. None the less, he conceded, it had not yet been decided that there was any obligation in Victoria on a judge to give a direction on the topic and the prosecutor, in his closing address, had told the jury that the applicant was not required to give evidence. He submitted that we should take a different line from that adopted by King, C.J. and hold that, in a case such as this at least, some comment should have been made by the judge to alert the jury to the difficulties facing the applicant in choosing to give evidence and the credit to which he was entitled for exposing himself to what was inevitably a difficult and testing time. The cross-examination of the accused in fact spanned some ten sitting days.
[74](1985) 123 L.S.J.S. 37 at 38-39.
[75](1997) 70 S.A.S.R. 78.
[76](2000) 110 A.Crim.R. 512 at 518-9.
[77](1998) 101 A.Crim.R. 83 at 94.
[78](1998) 102 A.Crim.R. 472 at 483.

In our opinion, we should not impose upon a trial judge the obligation of making a comment in circumstances like the present. The applicant was probably bound, in practical terms, to go into the box and give evidence if he wanted the jury to accept his defence that he himself was the innocent dupe of the other conspirators and that he had, in making representations to the Trust, acted in good faith and in the genuine belief that much, if not all, of what he represented was the truth. It was inherent in his defence that he should support his claim by direct evidence. That does not mean that it might not have been a difficult question whether to expose himself to such cross-examination as followed, but cross-examination was necessarily the price he had to pay for running the defence that he did. In a sense, that does not matter. What does matter is that no warrant exists for our deciding that a trial judge is obliged to tell the jury that an accused might properly be given credit for electing to give evidence on oath in circumstances like this. No exception was taken below to the failure now complained of and we cannot see that there was error in the judge’s failing to mention to the jury the possibility of such credit being given. That there was no forensic advantage to be obtained in failing to take exception is not to the point.

Ground 7: duplicity in counts 2, 3 and 4

That brings us back to the matter of duplicity, uncertainty and jury unanimity, this time in relation to counts 2, 3 and 4: for ground 7 (which was argued first) reads:-

"A miscarriage of justice resulted from the trials on counts 2, 3 and 4 because the counts were duplex either on their face or as left to the jury.

It is convenient first to deal with the argument in relation to count 2. Despite the specific terms of the complaint made in ground 7, Mr. Croucher's submission was somewhat broader: it was that in two respects count 2 or the conviction thereon was “duplex, uncertain and/or gives rise to a miscarriage of justice”. The Crown was relying upon some 23 documents as made and used within the rubric of count 2 and counsel seized, first, upon his Honour's direction that the Crown needed to prove that only one false document was “made and used” in order to sustain a conviction. If that was correct, he submitted, what was significant was that there was no direction that the jury had to be unanimous as to the particular document which was false (in contrast to the direction given in relation to count 1). On the contrary, he pointed out, the jury were given the usual direction that although their verdict had to be unanimous, jurors need not “reach the same verdict in the same way”. It followed that either the count as pleaded was duplex, in that it contained more than one offence, or the verdict was uncertain, in that one could not tell whether the jury had been unanimous as to the document or documents which was or were false.

In our opinion the respondent had the answer to this submission. The charge was not duplex: it contained no more than one charge. The charge was not made separately in respect of each and every one of 23 documents which were said to be false; the charge contained but one offence of doing “a series of acts” with intent to pervert the course of public justice. As explained in R. v. Rowell[79], this is one offence, perverting the course of public justice, by means of a series of acts, or a course of conduct. It was open then to the jury, provided that they were unanimous about the conclusion, to arrive at their conclusion that the offence had been committed by reference to one or more of the documents relied upon: R v. Morex Meat Australia Pty Ltd and Doube[80] per McPherson, J.A, Pincus, J.A. and White, J. In that context, there was no error when the judge said that they need be satisfied only that one document was false: to make and use the document with intent to pervert the course of justice was indeed to pervert the course of justice by a series of acts. There was no duplicity and, as in a case depending upon circumstantial evidence, there was no relevant uncertainty in the verdict.
[79][1978] 1 W.L.R 132 at 138.
[80](1995) 78 A.Crim.R. 269 at 289-292.

Next, the like complaint is made in ground 7 about counts 3 and 4. Here, it was said, there were three respects in which these counts were duplex, the convictions were uncertain, or there was a miscarriage of justice. First, counsel contended that each of counts 3 and 4 alleged two offences, not one, in that reference was made to perverting the course of justice by attempting to persuade Dougall and Boyle respectively to provide false information to members of the Victoria police force and to give false evidence in any judicial proceedings. For the Crown, Mr. Coghlan replied that these were but two sides of the same coin: the act which was done with intent to pervert the course of public justice was seeking to persuade the named person to falsify the facts, first as information given to the police in their investigation and then as evidence in any court proceedings. That was the charge and as such the charge as pleaded was not bad for duplicity. We agree.

But then, said Mr. Croucher, the vice lay in the fact that, according to the judge’s directions, it would be enough if the jury were satisfied of an attempt by the applicant to persuade the named person either to provide the false information to police or to give false evidence in court proceedings. The jury having returned verdicts of guilty on both counts 3 and 4, it was impossible, he submitted, to know of which of these two the jury had been satisfied beyond reasonable doubt, but again that is to confuse, we think, particulars of the act done with the offence charged. The offence was, with intent to pervert the course of public justice, doing an act which had that tendency. The act was particularised by the words commencing “in that he attempted to persuade” the named person to do two things and, as the judge said, it was enough if the jury were satisfied that he sought to persuade Dougall, or Boyle as the case may be, to do one or other or both. Uncertainty in that regard did not vitiate the verdict.

Perhaps, in respect of count 2, and as well in respect of counts 3 and 4, the pleading might have been improved. It was suggested that in count 2 the particulars might have referred to the applicant’s making and using “a false document or false documents”, instead of just the latter. In counts 3 and 4, instead of referring to providing false information to the police “and” giving false evidence, the word “and” might have been replaced by the disjunctive “or”. But more than one answer can be made to this submission.

First, the suggestions for amendment of the pleading do not really accord with the Crown case. The Crown claimed that the accused did all of the things mentioned, not some of them, and when more than one discrete act is relied upon to sustain the charge and any one or more would be sufficient we return to the cases first mentioned, and in particular the difference between what is an essential element of the offence charged and what is no more than a particular of the charge or the evidence by which the Crown seeks to make out its case. A second answer is that at trial the way in which the case was being put to the jury was made plain and no exception was taken to the pleading as a matter of form or, in this respect, to the judge's charge; and in those circumstances it seems to us somewhat unreal for the applicant now to submit that we should intervene to set aside the verdicts on counts 2, 3 and 4, particularly after such a lengthy trial, on such flimsy grounds. If necessary we would be prepared to conclude that there was no miscarriage: but in our opinion there was no error.

Grounds 8 and 9

Ground 8, which is headed "unsafe and unsatisfactory" reads thus:-

"A miscarriage of justice resulted from the fact that it was not open to a properly instructed jury to be satisfied, on the criminal standard, of all alternative ways in which counts 1, 2, 3 and 4 were pleaded or left to the jury.

Ground 9 is as follows:
"An aggregate of errors caused the trial to miscarry."

Under ground 8, Mr. Croucher relied upon the submissions already made, particularly those concerning the uncertainty attending the verdict. Also, in the course of arguing the foregoing grounds, he made particular point of the significance to the case for the applicant of the claim that he had a genuine belief in what he represented – or at least much of what he represented – to the Trust: yet the judge (he argued) failed to emphasise how significant such a genuine belief was to the charge of conspiracy to defraud the Trust by inducing it to invest, and inducing it to invest by dishonest means. In essence, however, the ground of unsafe and unsatisfactory depended upon what had already been submitted and, as we think there is nothing in the other grounds, we are not persuaded that the verdict of the jury was unsafe and unsatisfactory.

In much the same way, ground 9 depended upon what had so far been argued. Mr. Croucher made a valiant attempt to bring into account, under this head, other “errors” which lay in the failure by trial counsel to take exception to certain defects and “some equally obvious errors in respect of which there seems to be no explanation for a failure to take exception”. When pressed, he was loath to attribute fault to trial counsel, or indeed even to persist in the characterisation of these other grounds for complaint as "errors" as distinct from neglect or mere oversight. The submission seemed to be that when one put together all of the complaints made in the grounds of appeal and added to them the failure to refer to such matters as, say, s.321 of the Crimes Act 1958 and, perhaps, the failure to press the judge for a direction that the jury might give credit to the accused for his decision to enter the witness box - when all was that was put together, the applicant had not had a trial according to law. When questioned about this submission, Mr. Croucher relied only upon those errors referred to in the grounds of appeal and, for the reasons already given, we are not prepared to accept the submission that error has been identified. Accordingly grounds 8 an 9 are no more persuasive than the other grounds.

Ground 10: use of pleas of guilty

Ground 10 was the last ground added, and this by amendment made separately on 30 January last. It reads:

"The learned trial judge erred in failing to give any or any adequate directions as to the use the jury could and could not make of the pleas of guilty by Ronald Adrian Powles, Gopal Nair and Gregor John Dougall and the acceptance, implicit or otherwise, by Ross David Taylor of his own guilt (see, e.g., R. v. Fountain & Tootell [2001] VSCA 200 (30/10/01) at [27]-[30] and the cases there cited)."

During pre-trial discussions, counsel for the applicant asked the Crown to open and lead evidence of the fact that Dougall, Powles and Nair had been charged with, pleaded guilty to and been sentenced for offences concerning the matter at hand. In the course of opening, the prosecutor duly indicated that Dougall, Powles and Nair had pleaded guilty to various offences and, when the first two of these three came to give evidence, evidence of their pleas and sentences was given by them. Initially Nair was to be called to give evidence in much the same way, but in the end he was not called and the fact that he had pleaded guilty to and been sentenced to imprisonment for, inter alia, a count of “conspiracy to defraud being the same conspiracy with which Mr. Walsh is charged” was led through the policeman Rowlings.

Thus far there can be no complaint. In substance, all had proceeded according to the request of the applicant. But in his closing address, the prosecutor referred to the pleas of guilty and said[81]:

"During his cross-examination, Mr Walsh accepted that there was indeed a conspiracy to defraud the Trust. We say that he could hardly do otherwise in view of the substantial body of evidence which establishes that fact. Nor indeed could he deny the existence of a conspiracy to defraud the Trust in light of the fact that both Powles and Nair had pleaded guilty to such a conspiracy. Indeed, you heard, not only did they plead guilty to participating in the conspiracy to defraud the Trust, but they also pleaded guilty to having conspired with Mr Walsh to do so. ..

The complaint is now made that the prosecutor’s words were apt to invite the jury to treat the pleas of guilty as evidence to establish the guilt of the applicant. Yet the only way in which those pleas could properly be used, it was submitted, was to undermine the credit of the relevant witnesses – and Nair had not even been a witness.

[81]At 5702 of the trial transcript.

Mr. Croucher submits that the jury ought to have been directed that the pleas of guilty were not to be used in any way as evidence against the applicant and that their only relevance was to undermine the credit of those who gave evidence (which did not include Nair). That such a direction should have been given is borne out, he submitted, by R. v. Fountain and Tootell[82] at [27]-[30]. The failure to take exception to this omission from the charge was not fatal in Fountain and Tootell and, he submitted, should not be regarded as fatal here.
[82][2001] VSCA 200 (unreported, Court of Appeal Victoria, 30 October 2001).

In our opinion, the submission gives undue weight to the comment of the prosecutor. In a trial as long and as complex as this one the prosecutor’s passing comment on the pleas of guilty was likely to be lost, we think, in all that ensued. Be that as it may, it was followed immediately by another statement of the prosecutor which served to put in context the part played by the applicant, Walsh. For, immediately after what we have quoted above, the prosecutor went on to say[83]:-

”But the live issue in this case, and Mr Walsh, I think, accepted this as well, is whether the Crown has proved beyond reasonable doubt that Walsh was a party to that conspiracy.”
[83]At 5702.

In short, the prosecutor pointed out, as was the fact, that the whole focus of this trial was on what was done by Walsh: was Walsh a party to the conspiracy which, it was admitted, existed between the other co-conspirators? It may be that the co-conspirators pleaded not only guilty but guilty to having conspired with Walsh, but the jury were immediately told that the crux of this trial was whether Walsh had joined them in their conspiracy. In context the passing comment of prosecuting counsel to which exception is now taken could not have mattered, and the failure to take exception below is readily understood. The failure to take exception may not be fatal in such cases per se, but it is fatal when the failure to take exception was because exception was scarcely warranted.
Conclusion in respect of conviction

For these reasons, we think that there is nothing in any of the grounds raised in the notice of application for leave to appeal against conviction, despite the substantial amendment that that notice has undergone. We would dismiss that application.

Sentence

As stated at the outset, the applicant was sentenced on 31 March 2000 to seven years’ imprisonment on the count of conspiracy (count 1) and to three years’ imprisonment on each count of attempting to pervert the course of justice (counts 2, 3 and 4), one year of each of the latter to be served cumulatively on the sentence imposed on count 1. The total effective sentence was thus of 10 years’ imprisonment and seven years was fixed as the non-parole period. We deal now with the application for leave to appeal against sentence.

In sentencing, the judge regarded himself as at large, for these were common law offences and, at the time of the offences, there was no statutory provision for penalty. By s.320 of the Crimes Act 1958, as amended in 1997, maximum penalties were fixed: 15 years’ imprisonment for conspiracy to defraud and 25 years’ imprisonment for perverting the course of justice. These, said counsel, should have been regarded by the judge and it was error to ignore them. The relevant amendments to s.320 were made by s.56 of the Sentencing and Other Acts (Amendment) Act 1997[84]. Section 63 of that Act provided expressly that the amendment made by s.56 should apply “only to offences alleged to have been committed after the commencement of that amendment”. Section 56 came into force on 1 September 1997, and thus well after the dates of offending alleged in the presentment in this instance. Mr. Croucher’s argument turned not, however, on s.63 but on ss.114 and 117 of the Sentencing Act 1991. Section 114(2) provided that any reduction in penalty extended to offences committed before the commencement of the provision effecting that reduction, provided only that no penalty had been imposed in the meantime. But we think it clear that s.114(2), even if it otherwise applied by virtue of s.117(1), is denied operation by the later provision contained in s.63(1) of the 1997 Act. After all, s.63 is a special provision made with respect to the amendment achieved by s.56 of the 1997 Act: there is no reason to suppose that it does not have full force and effect, overriding, if necessary, the more general provision made by s.114 of the earlier Act. There is nothing therefore in the complaint that the judge, in sentencing, should have had regard to the provisions, as now in place, of s.320 of the Crimes Act.
[84]Act No.48 of 1997.

That disposes of one of the five grounds (ground 4) taken in respect of sentence in the notice of application as amended on 21 December 2001. A sixth ground was added by further amendment on 30 January 2002. As will be seen, we are satisfied that there is nothing in any of these grounds and that, on that account, the application for leave to appeal against sentence should be dismissed.

The latest ground to be added to the application, ground 6, complains of error in the sentencing judge’s failing to have regard to the fact that there were “other and less punitive offences ... which not only could have been charged but were as appropriate or even more appropriate to the facts alleged”. Counsel had in mind, it seems, conspiracy to obtain property by deception and the like: but, as we have said above, we are far from persuaded that these alternative charges would have exhausted the case being made by the Crown against the applicant. Be that as it may, it is surely in the discretion of the Crown what offence to charge, where more than one might properly be charged; and in this case there was no error, as we have said already, in the Crown’s charging the applicant with conspiracy to defraud by dishonestly inducing the Trust to invest its moneys as advocated by the conspirators. That being so, we reject the argument that there was error in the judge’s failing to have regard to the penalties that would have been appropriate had other charges, however like, been laid. The judge was bound to sentence for the offences of which the applicant was found guilty by the jury. Mr. Croucher referred us to the decision of this Court in R. v. Liang & Li[85], but the considerations that weighed there are not found here. As Winneke, P. said[86] the applicants in that case had been exposed by the prosecuting authority to a more punitive regime of sentencing than the one to which they should, in fairness, have been exposed because, at least in part, the charge that was laid under State law “did not ... appropriately fit the nature of the applicants’ conduct”, unlike the offence available under Commonwealth law. No comparable argument exists here.
[85](1995) 82 A.Crim.R. 39.
[86]At 43.

Ground 5 turns on the factual basis upon which the applicant was sentenced. The learned judge erred, it is claimed, in sentencing “other than on the basis that was both most (or at least more) favourable to the applicant and consistent with the jury’s verdicts”. The judge, of course, convicted upon the factual basis determined by him for the purposes of sentencing, and in his careful sentencing remarks he made that basis quite plain. The complaint now is that he took too harsh a view of the facts and, for all one can tell, a view harsher than that taken by the jury. But that is not ground for appeal: Cheung, supra. It is common enough that the judge is left to make his own findings after a jury verdict in a case where guilt might have been established by any one of a number of routes. Counsel himself referred to “the numerous alternative bases for conviction left to the jury” and we see no error in the judge's making his own findings. Indeed, he was bound to do so and it is only speculation whether the findings that were made were harsher or less harsh than those of which the jury was persuaded.

Ground 2 refers to cumulation and totality. Error is alleged in the judge’s “ordering cumulation at all” or “as to the extent of cumulation ordered”, and also in his Honour’s infringing against the principle of totality, both in respect of the total effective sentence and the non-parole period.

The genesis of the complaint about totality lies in the fact that in 1994 the applicant was sentenced to 18 months’ imprisonment, with a non-parole period of nine months, in respect of a separate and independent transaction, called “the Cuda transaction”. This, we were told, was over the theft of a cheque between April and September 1991 in circumstances similar to those charged here. In sentencing, his Honour said that, consistently with Mill v. R.[87], “the sentence ... should reflect a limited concurrency to be arrived at by considering what the effective head sentence would have been, had [the applicant] been sentenced at the same time for the Cuda transaction and the Nauru Trust transactions”[88]. Basing himself on this, Mr. Croucher submitted that error was revealed in that the judge had applied the relevant principle only to the head sentence, and not also to the non-parole period. But the remark that we have quoted does not justify that conclusion. The judge approached the task properly by regarding first what the head sentence should be, bearing in mind the principles of Mill; there is nothing to suggest that he then ignored those principles when fixing the non-parole period. Where the total effective sentence is of 10 years’ imprisonment, a non-parole period of seven years is, if anything, merciful.
[87](1988) 166 C.L.R. 59.
[88]Sentencing remarks, paras.46-48.

So far as cumulation is concerned, Mr. Croucher made an earnest plea that there should have been substantial concurrency among counts 2, 3 and 4 in that the misconduct in question “wholly or substantially overlapped in time; the actions alleged in support of those counts were interwoven and directed at the same end; and the behaviour alleged in count 3 was in a sense the continuation of the corruption of Mr. Dougall” (who, of course, is mentioned in count 1). And then, he submitted, there should have been complete, or nearly complete, concurrency between count 1 on the one hand and counts 2, 3 and 4 on the other. But none of these submissions should be accepted. The offences of attempting to pervert the course of justice were serious offences and, though perhaps committed in an effort to avoid discovery of the offending in count 1, merited condign punishment. On count 2, the Crown relied upon the making and use of 23 documents between 1 December 1992 and 31 December 1993: count 3 was the attempt, between 8 July 1993 and 15 December 1993, to persuade Mr. Dougall to provide false information, either to the police or to the court should judicial proceedings follow; and count 4 was the attempt between 1 October 1993 and 31 January 1994 to persuade Mr. Boyle to do likewise. We should have thought that orders for cumulation in respect of one year only of each of the three year sentences imposed on counts 2, 3 and 4 were proper and we see no reason why there should have been “complete, or nearly complete, concurrency [with] count 1”. An argument about cumulation does not bear much elaboration and, in all of the circumstances, we do not see error in the orders that were made for cumulation. Certainly we reject the argument that in some way the proper process was inverted by his Honour when sentencing: this is not a case like DPP v. Grabovac[89], where inappropriate sentences were imposed on individual counts in order to accommodate a pre-determined total effective sentence.
[89][1998] 1 V.R. 664 at 682-683.

There is still the question of manifest excess: ground 1. In his very thorough submissions, Mr. Croucher elaborated upon the role played by the applicant in the conspiracy, the point at which he joined it, the moneys he obtained personally from the scheme and the loss suffered by the Trust. He emphasised the judge’s finding that the applicant joined the conspiracy “by the end of January 1992” by which time he knew the whole scheme was a fraud. On the other hand, it appears that the applicant was the marketer of the scheme, even if innocent at first. The others lent respectability and skills; the applicant was just the salesman. But salesman he was and without his efforts one may wonder how far the scheme could have succeeded. The judge found that the applicant received a total of $838,400 out of the Trust’s funds which was less than the amount gained by the co-accused Powles but more than that gained by Nair or Madden. About $61 million was put at risk by the scheme, even if something in the order of $50 million was returned.

As on the plea before the sentencing judge, Mr. Croucher emphasised to us the age of the applicant: he was 55 years old at the time of sentence. The judge accepted that the applicant “has been very committed to his family” and that he and his wife had much to be proud of in their children. The applicant had a history of hard work and, at the time of this offending, he was in considerable financial difficulty, staving off his creditors. By the same token, this was not the applicant’s only offending: there was the Cuda transaction. Mr. Croucher emphasised the delay between the offences and trial, as being not only difficult and stressful (as his Honour found) but also an impediment to the applicant’s securing any worthwhile employment in the meantime.

There was no doubt much to be put on behalf of the applicant, but the offences of which he was found guilty were very serious ones. This was no fly-by-night scheme whereby the victim was duped for a few days; this was a major enterprise which, even if not initiated by the applicant, was joined by the applicant and then advanced by the applicant in a very significant manner. The question of manifest excess depends upon whether the sentences imposed were altogether outside the range of sentences reasonably open in the proper exercising of the sentencing discretion, and having considered the arguments of counsel we cannot say that they were. The argument based upon Mill, that if properly applied the notional starting point for the sentencing judge must have been further outside the range properly open, is not persuasive. These sentences were not manifestly excessive.

There remains the question of disparity, an argument, it seems, raised nowadays whenever co-accused are sentenced for what is in substance joint offending. Mr. Croucher carefully set out in a table the sentences imposed respectively upon the applicant, Nair and Powles for this matter involving the Nauru Trust, and also, in respect of the applicant and Nair, the Cuda matter, and in respect of Powles' embezzlement of clients’ funds. The argument that there was in this case disparity giving rise to a justified sense of grievance is made the more difficult for the applicant because, while all three men were charged with conspiracy to defraud the Trust, only the applicant was charged with attempting to pervert the course of justice. Nair was charged over secret commissions and the use of a false document and Powles was charged over secret commissions. The common charge of conspiracy to defraud drew for the applicant a term of imprisonment of seven years, for Nair a term of four years and for Powles a term of two years and six months which was wholly suspended. Mr. Croucher argued, of course, that the differences were altogether unjustified, the differences between the offenders falling far short of explaining the great differences that existed in sentencing. But again, we are not persuaded. Mr. Coghlan emphasised the significant distinctions between the three offenders which, he submitted, were properly reflected in the different sentences imposed. Thus, the applicant had a prior conviction for a serious dishonesty offence; he could not receive any discount for pleading guilty, showing remorse or for undertaking to give evidence for the Crown; he did not suffer from a psychiatric illness as did Powles; nor was he entitled to the same sort of reduction as Powles, by reason of the principles in Mill. Further, submitted Mr. Coghlan, the critical difference in any comparison of the total effective sentences and the non-parole periods lay in the fact that the applicant was convicted on three attempts to pervert the course of justice, in addition to the conspiracy to defraud. Nair’s sentence on the charge of using one false document, moreover, fell far short of the offence in count 2 on which the applicant was convicted. These submissions should, we think, be accepted and in the result we reject the argument based upon parity.

This then disposes of all six grounds taken in the amended notice of application for leave to appeal against sentence. Like the application for leave in respect of conviction, this application too should be dismissed.

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[2002] VSCA 98

26 June 2002