R v Walters

[2002] NSWCCA 291

CITATION:	R v. WALTERS, William John [2002] NSWCCA 291
FILE NUMBER(S):	CCA 60572/01
HEARING DATE(S):	8 and 9 July 2002
JUDGMENT DATE:	25 July 2002
PARTIES :	Regina - respondent William John Walters - appellant
JUDGMENT OF:	Hodgson JA at 1; Studdert J at 101; Dowd J at 102

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70076/99
LOWER COURT JUDICIAL OFFICER :	Sully J

COUNSEL :	Mr. M. Abdul-Karim for appellant Mr. D. Fagan SC for respondent
SOLICITORS:	Paclaw Solicitors, Kings Cross for appellant Commonwealth DPP for respondent
CATCHWORDS:	CRIMINAL LAW - EVIDENCE - Ten counts heard together - Facts relating to earlier counts probative of knowledge and intention in respect of later counts - Not admissible as tendency or coincidence evidence - Whether specific direction necessary - Whether prejudicial effect outweighed probative value.
LEGISLATION CITED:	Evidence Act 1995 ss.95, 97, 98, 101
CASES CITED:	Cleland v. The Queen (1982) 151 CLR 1 Green v. The Queen (1971) 126 CLR 28 R v. Birks (1990) 19 NSWLR 677 R v. Buckett (1995) 79 ACrimR 302 R v. Tannous (1987) 10 NSWLR 303 R v. The Queen (1992) 175 CLR 599 Spies v. The Queen (2000) 201 CLR 603
DECISION:	1. Appeal against convictions dismissed. 2. Leave to appeal against sentences refused.

CCA 60572/01
SC 70076/99

HODGSON JA
STUDDERT J
DOWD J

Thursday 25 July 2002

REGINA v. William John WALTERS

Judgment

1 HODGSON JA: On 26 June 2001, William John Walters was indicted on charges that he:

(1) between about January 1989 and about April 1990, at Sydney in the State of New South Wales was knowingly concerned in Lymkom Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by Lymkom Pty Limited.

(2) between about February 1990 and about July 1993, at Sydney in the State of New South Wales was knowingly concerned in Kindby Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by Kindby Pty Limited.

(3) between about May 1990 and about June 1993, at Sydney in the State of New South Wales was knowingly concerned in Frego Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by Frego Pty Limited.

(4) between about March 1992 and about February 1994, at Sydney in the State of New South Wales was knowingly concerned in Taureema Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by Taureema Pty Limited.

(5) between about February 1994, and about February 1995, at Sydney in the State of New South Wales was knowingly concerned in Budscan Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by Budscan Pty Limited.

(6) between about February 1995 and about January 1996 at Sydney in the State of New South Wales was knowingly concerned in Milcoy Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by Milcoy Pty Limited.

(7) between about January 1996 and about September 1996 at Sydney in the State of New South Wales was knowingly concerned in Camotray Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by Camotray Pty Limited.

(8) between about September 1996 and about June 1997, at Sydney in the State of New South Wales was knowingly concerned in Convoy Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by Convoy Pty Limited.

(9) between about July 1997 and about April 1998, at Sydney in the State of New South Wales was knowingly concerned in Aloprom Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by Aloprom Pty Limited.

(10) between about April 1998 and about May 1998, at Sydney in the State of New South Wales was knowingly concerned in AJ Australia Pty Limited defrauding the Commonwealth in respect of group tax required to be remitted to the Commissioner of Taxation by AJ Australia Pty Limited.

2 He pleaded not guilty to all counts, and was tried before Sully J and a jury. After a hearing lasting fourteen days, on 13 July 2001, the jury returned verdicts of guilty on all counts.

3 On 27 July 2001, the trial judge sentenced the appellant as follows: on count 1, two years’ imprisonment (27 July 2001 to 26 July 2003); on each of counts 2, 3 and 4, three years’ imprisonment concurrent with that for count 1 (27 July 2001 to 26 July 2004); on each of counts 5, 6, 7, 8 and 9, four years and eight months’ imprisonment (27 July 2004 to 26 March 2009), with a non-parole period of three years (27 July 2004 to 26 July 2007); and on count 10, three years’ imprisonment (27 July 2004 to 26 July 2007). On 23 August 2001, the trial judge formally set a non-parole period of six years in connection with all sentences.

4 The appellant appeals from the conviction on all counts, and seeks leave to appeal from the sentences.

CROWN CASE

5 The Crown case was that the appellant had been the principal of each of the ten different companies named in the charges, and that during the period January 1989 to May 1998 had conducted a substantial bricklaying business in the names of those companies, successively, contracting mainly for Meriton Apartments.

6 The Crown alleged that each company had employed a large number of men, the number ranging at different times from about 60 to about 250, and had regularly deducted group tax from their pay; but that there had been substantial defaults in remitting the group tax to the Australian Taxation Office (ATO).

7 The amounts of the defaults alleged, and the periods of operation of the companies in respect of which the defaults arose, were as set out in the following table:

1 Lymkom Pty Ltd 1/89-4/90 (1 yr 4 mths) $500,230.42

2 Kindby Pty Ltd 2/90-7/93 (3 yrs 6 mths) $484,142.60

3 Frego Pty Ltd 5/90-6/93 (3 yrs 2 mths) $191,939.92

4 Taureema Pty Ltd 3/92-2/94 (2 yrs) $892,996.84

5 Budscan Pty Ltd 2/94-2/95 (1 yr 1 mth) $639,508.98

6 Milcoy Pty Ltd 2/95-1/96 (1 yr) $1,087,939.27

7 Camotray Pty Ltd 1/96-9/96 (9 mths) $559,397.65

8 Convoy Pty Ltd 9/96-6/97 (10 mths) $1,082,955.25

9 Aloprom Pty Ltd 7/97- 4/9 8 (10 mths) $1,701,760.28

10 AJ Australia Pty Ltd 4/98-5/98 (6 wks) $161,350.37

This shows a total of about $7.3 million dollars of unremitted group tax payments over a period of nine years four months.

8 The Crown alleged that each company, during its operating life, received substantial income from bricklaying activities; but that the appellant had applied that income in large part to very extravagant personal expenditure and had thereby effectively stripped the companies of their available funds. When a point was reached in the life of each company when it was clear that the company had no chance of paying its accumulated arrears of group tax, the company was wound down and its employees and work in progress was transferred to a new company. This left the Commissioner of Taxation unable to recover group tax.

9 On the basis of that material, the contention of the Crown was that the appellant, as the person having sole effective control of the financial affairs of each company, intended, between the dates charged in the relevant count, that those affairs should be so conducted that the Commissioner of Taxation would be left without effective recourse to company assets to obtain payment of group tax, and that this involved dishonest conduct by the company and by the appellant.

EVIDENCE AND DEFENCE CASE

10 At the trial, the Crown called evidence from accountants involved in establishing the successive companies.

11 James Ball gave evidence that he worked for the appellant during the operations of Lymkom; that he repeatedly advised the appellant of Lymkom’s group tax obligations; that he warned the appellant that his personal expenditures were too high to permit the company to meet its obligations; and that he eventually advised the appellant to put Lymkom into the hands of a liquidator. He advised the appellant to set up Kindby to carry on the bricklaying business, and Frego as an administration company. He received notices from the ATO regarding very substantial arrears of group tax of Kindby, and repeatedly advised the appellant of his obligations. In about late 1993, he refused to set up a further company for the appellant and ceased working for him.

12 Stephen Bates gave evidence that he worked for the appellant from early 1994 to mid-1997; that he reminded the appellant of his obligation to remit group tax on those occasions when he became aware of default; and that he informed the appellant that he was no longer willing to work for him in mid-1997.

13 Three other accountants gave evidence concerning the formation of companies between mid-1997 and early 1998.

14 The Crown also called evidence from persons dealing with the bricklaying business.

15 Laureen Place gave evidence that she was bookkeeper for all the companies throughout the period the subject of the charges; and that throughout the appellant had control of the companies, hired and fired employees, dealt with Meriton Apartments, and maintained exclusive control over the bank accounts, holding cheque books and writing all cheques. She was instructed by the appellant to transfer employees from one company to the next through the sequence of ten companies. She kept the appellant informed of group tax remittance arrears.

16 Diane Reynolds gave evidence that she was accounts manager for Meriton Apartments from April 1994 to the end of the period of the charges. The appellant dealt exclusively with Meriton Apartments concerning the bricklaying business of the succession of companies, and he made all claims for payments and received all cheques.

17 Robert Moody, from the office of the liquidator of Conroy, gave evidence that he interviewed Melita Kristoff, a director of Conroy, in the presence of the appellant, and her account was to the effect that she knew nothing of the affairs of that company and that the appellant carried on that company’s business.

18 Evidence was given by two other employees of the business inter alia concerning the continuity of the business through the succeeding companies. Evidence was called from John Ebergir and Brenda Walters, who were shown as employees in the wages records of relevant companies, to the effect that they did no work in the business. Three other witnesses gave evidence as to payments for personal expenses from the companies. Extensive documentation of the financial dealings of the companies was put into evidence.

19 Accountants James Walton and Brian Booth were called. Mr. Walton gave evidence of analyses showing the source and application of funds, called “coversheets”, one for each company plus a combined coversheet for Kindby, Frego and Taureema. These documents set out figures for the income of the respective companies and how this income was applied, including amounts paid to the ATO and unpaid group tax, and personal expenses of the appellant. The figures for the first nine companies showed the latter to be between 69% and 100% in respect of the various companies, and to be 46% in relation to the tenth company. Mr. Walton was cross-examined in detail to suggest that some amounts included in the coversheets as personal expenses or unallocated were in fact business expenses; although it should be noted that the unallocated amounts were not in any event included in the personal expenses and the percentages mentioned above.

20 Mr. Booth supported the appropriateness and accuracy of Mr. Walton’s analyses.

21 The appellant did not give evidence at the trial. There was called on his behalf an accountant Roslyn Lapsley, who produced reconstructed profit and loss accounts of the companies commencing with Budscan, the company referred to in count 5. These reconstructed accounts indicated what business expenses would have been, based on industry percentages; and were used to support a contention that there was not the money available either to pay personal expenses or group tax as suggested by the coversheets.

22 The defence was essentially that the Crown did not prove defrauding by the companies or knowing involvement by the appellant. Having regard to Ms. Lapsley’s evidence, the Crown had not proved there was money available which was diverted to the appellant’s personal use. It was not shown beyond reasonable doubt that the failure to pay group tax was otherwise than due to shortage of money and selection between competing commitments, and also disorganisation. No acts or omissions of the appellant that amounted to knowing involvement had been proved.

23 As regards the summing up, it will be convenient to refer to relevant parts of that in relation to particular grounds of appeal. I have already stated the outcome of the trial.

24 It will be convenient to group the submissions under a number of headings, each embracing a number of grounds of appeal. There is some overlapping between grounds of appeal and also between the headings I will adopt.

ELEMENTS OF OFFENCES

25 A number of grounds of appeal relate in various ways to alleged deficiencies in the summing up concerning the elements of the offences with which the appellant was charged. Some of these grounds also relate to submissions concerning alleged unfairness in the summing up, to which I will come later. The relevant grounds are grounds 4, 8, 10, and 11I which are as follows:

4. His Honour erred in that he did not at any stage in the summing up address the question of the conduct, acts or omissions by the accused that is said to constitute the evidence that the accused was knowingly concerned with each of the companies subject to indictment in which the accused was not a director.

8. The “structure document” suggesting 6 points of “well intentioned piece of advice” which His Honour handed to the jury suggesting the approach that the jury may take to evaluating the evidence was nothing less than an expression of His Honour’s views and was in the circumstance unfair to the accused and lacking in judicial balance so as to amount to a miscarriage of justice.

10. His Honour erred in that at no point during the summing up did he state to the jury that they should disregard the prejudicial effect of the evidence led by the Crown as to the use of extravagant life style lived by the accused up to the point of his arrest such evidence including evidence of the purchase or lease of luxury motor vehicles and boats, overseas holidays, the use of limousines and of the employment of a chauffeur whereas he aught (sic) to have stated to the jury that they should specifically focus on the evidence in support of the elements said to constitute section 29D of the Commonwealth Crimes Act 1914 as amended.

11I. His Honour erred in failing to direct the jury that the jury must not make any adverse inferences against the Appellant merely because the jury was satisfied that the companies named in the indictment; leased or hire purchased luxury motor vehicles and boats for the personal use of the Appellant; made personal payments to the Appellant out of the business account of the company; transferred its contracts and employees to another company; employed and used family members and associates of the Appellant as directors and signatories on cheque accounts; and should have directed the jury that the jury was only entitled to make an adverse inference based upon such conduct when after considering all of the evidence in respect of each of the companies named in the indictment the jury was satisfied beyond a reasonable doubt that there was accompanying the conduct concerned in respect of a particular company named in the indictment an intention to thereby defraud the Commonwealth of Group Tax required to be remitted to the Commissioner and also that the Appellant was knowingly concerned in such conduct accompanied by the said intention to defraud.

26 The principal directions given by the trial judge concerning the elements of the offence were as follows:

Now, ladies and gentlemen, the next section of the summing-up to which we come looks at the essential elements of each of the ten offences charged. That is to say, looks at each of those things which the Crown must prove beyond reasonable doubt if it is to succeed in its case on any particular count in the indictment.

I am going to distribute to you a copy of a document; and I will ask you then, when you have it, to be patient and to go through it with me, not because I think you can't read it for yourselves, but because if we just go through it together that will, I think, usefully focus what I want to get across to you in connection with this aspect of these matters.

In respect of each separate charge of the ten which have been brought in the indictment, the Crown must prove beyond reasonable doubt as to that particular company named in the particular charge, each of the six numbered matters which follow. The first of them is:

1. That in fact the particular company failed to pay the Commissioner of Taxation, as required by law, monthly amounts of group tax deducted from the gross wages of the various persons who were employed by that company during its operational lifetime.

You will remember that the unchallenged evidence is that the law, relevantly, was that group tax had to be paid for a given month by the seventh of the succeeding month. That wasn't an optional extra. That is what the law required to be done, not to be paid in part, or to be paid as best one could; or to be the subject of a well intentioned attempt to pay. The law required that money that had been taken from the gross wage packet of the employees should be remitted by the seventh of each month to the Commissioner of Taxation.

2. That the failure of the company so to pay the lawfully required group tax continued in such circumstances as to entail that the Commissioner was left, not only unpaid, but without recourse to any company assets from the proceeds of which he could recover what he was owed by the company.

3. That such failure on the part of the company was dishonest. Dishonest in this context means dishonest according to the standards of honesty accepted in contemporary society by ordinary decent people.

May I pause there, again emphasising why you are here and the importance of what it is that you are asked to put into the trial. You are asked to say what all of our fellow citizens in contemporary society would accept as being ordinary decent standards of probity and honesty in connection with affairs of this kind. It is not a matter of legal art. It is a matter for the judgment of a jury chosen at random representing the community.

The Crown case in that connection is that the company dissipated on other things monies that should have been remitted to the Commissioner in payment of group tax, and such conduct was dishonest in the relevant sense because it was done in the knowledge and with the intention that the result of the dissipation of its funds would be that the Commissioner would not be paid sums lawfully payable to him on account of group tax.

4. That the accused had the effective control of the operations, and in particular of the financial affairs of that particular company.

5. That the accused knew, therefore, of the dishonest conduct of the company.

6. That the accused, having that knowledge, acted in such a way as assisted the accomplishment of dishonesty of the company.

Let us pause there because the vehicle count by count with which you are concerned is a company; and because the true culpability for what was done, as the Crown puts the case in each case, feeds back not to some disembodied legal corporate entity, but to an individual, namely the accused, the charges had to be framed in each case, and the essential ingredients have to be defined in each case, in a way which recognises the existence and the separate corporate identity of the company as the vehicle within which the jobs were being taken, and work was being done, and money was being received, and the money was being paid out, and the related particular position vis-a-vis the company of the individual of whom it is said that in every real sense he was the company, because of his relationship to the corporate entity and to the nature and extent of his control over the way in which the affairs of the company were conducted.

That explains why it is necessary to frame the essential elements in a way which deals discretely with the corporate structure and the individual conduct in connection with the affairs of the corporate structure, but as the written directions go on to point out, when all of that is said and done, at the heart of the Crown case in each particular case is, may I say, a simple question in terms of definition at any rate, and that question is set out on page 2,

"Did the accused, as the person having the sole effective control of the financial affairs of the particular company, intend, between the dates charged in the relevant counts of the indictment, that those affairs should be so conducted that the Commissioner of Taxation would be left without any effective recourse to company assets in order to secure the payment of amounts of unpaid group tax to which he, the Commissioner, was lawfully entitled."


It has been put to you more than once, and in more than one form and context, that intention is at the very heart of each of these cases. So indeed it is; and the way in which it is correctly conceptualised in terms of the particular cases is as set out in that written set of directions. Those directions having been set in place, and you having taken hold in a properly clear fashion of those essential elements, you have then to come to the principal part of your job, which is to apply those principles of law to the evidence in connection with each of the successive counts in the indictment; and in connection separately with each of the companies. We will do that in a moment together beginning with Lymkom. But before doing that it is necessary to give consideration to this matter.

Before you can approach in a coherent logical kind of way the particular affairs of any of these particular companies, it will be necessary for you to set for yourselves what shall I call a structure, or a framework, by reference to which you can deal with the particular items of relevant evidence.

Something, in other words, which is a fixed point of reference that will give sense to the particular things that you are looking at in the evidence respecting the particular company with which you have been dealing. I am not able to give you, on a strict view, directions of law as to how you do that in the jury room; you are the judges of the facts, and you are entitled, provided that you apply the law as I give it to you, to approach your fact finding exercise in whatever way you think is logical and helpful. But I would not be content that I had given you the assistance to which you are entitled if I did not at least suggest a structural framework which it seems to me, although ultimately it is a matter for you, might help give that focus, company by company, to what you will be doing. May I therefore suggest that you might do this.

When you settle down with Lymkom, the first in order of the companies, the first thing you would do is take out your copy of exhibit A, the indictment, and put it down in front of you on the table, and keep it there as a document which will constantly focus your attention upon the need to deal separately and successively with each of these ten companies. Can I suggest that you should then take out of the same folder, the bar chart, a copy of which I am holding up for you; and you should put that down with the indictment, for the reason that the bar chart will give you at once a bird's eye view of the companies by name; of the sequence in which they operated; of the relationship; where there is demonstrably one, between the closing down effectively of the operations on one hand, and the starting up effectively of the operations of the successor company; and a general understanding of how the companies operate successively throughout the total time span of nearly ten years or whatever it is, with which the case is, overall, concerned.

Those things being in place you should, may I suggest, cross refer the relevant company registration details which you will get out of the exhibit A. You remember there is one sheet for each company behind its tab. It tells you when the company was incorporated, when it was deregistered, who were the relevant directors and secretaries and so forth. I will be suggesting to you, I may as well say now, for your consideration, but it is a matter for you, that in the end that material will not take you very far in considering these particular cases; but it is there, and it is part of the evidence, and in the spirit of approaching in a logical kind of way the structuring of a consideration of the individual counts, you should I suggest be mindful of what that-information is.

Thirdly you should take note of the relevant default history; noting whether or not the defaults were persistent defaults throughout the period charged in the relevant count of the indictment. You will find in exhibit L the information that you need in that regard.

Fourthly you should come in each case to the coversheet. I say that because however one twists and turns in arguing the pros and cons of these matters, in the end the analysis which is crystallised in the coversheet for the particular company is the structure of the Crown case; that is the real core of the factual material upon which the Crown relies. It is not the only thing on which the Crown relies, of course. But it is essentially at the very heart of what the Crown is arguing.

In connection with the overview in the relevant coversheet you will need to attend to a number of related questions first. First, is it necessary to consider in that particular company's case Miss Lapsely's evidence? The answer is no as to the companies before Budscan, yes as to the company Budscan and the successive companies, they being the companies as to which she purports to give the expert opinion evidence that you heard her give, and to which we will come in proper detail in a short while. What specific challenges, you will want to ask, were made to Mr Walton's coversheet picture in respect of that company. Was, any such challenge made good? If so, is the result significant in the overall result? I will have more to say to you about that when I come more closely to look with you at Lymkom.

The fifth point that you should look at, I would suggest, is this. What is the relationship between the total amount taken by the accused out of the particular company, whether it is wages or is any other form of non-business benefit. And then, the amount of group tax unpaid; you will find those details in the top half of the document which is exhibit R. You will need to consider, armed with that information, whether it is a fair inference or not that the amount taken by the accused, either as wages or as non-business benefits, would have been sufficient, had it been left in the company, either to pay the whole of the arrears of group tax; or if not the whole, at least a significant proportion.

Again, if I do not detain you with the figures it is because they are simple arithmetical calculations and they are all made out for you in exhibit R.

Sixth and finally, what evidence is there of relevant warnings or other notifications given to the accused as to his obligations respecting the payment as required by law of group tax lawfully payable by that particular company?

May I just run through those very quickly again.

There are six points that I have suggested. One, the dates charged and the relevant count of the indictment. Two, the relevant registration details taken from exhibit A. Three, the relevant default history. Four, the overview given in the relevant coversheet prepared by Mr Walton with the associated questions that I suggest in that connection. Five, the relationship between the total amount taken by the accused out of the company, whether it is wages or non-business benefit, and the amount of group tax unpaid. And the related question that I put to you about fair inferences available to be drawn from that conjunction of material. And six, what evidence is there of relevant warnings or other notifications given to the accused of his obligations to pay his group tax in a way that the law required?

Please understand: I am not suggesting that that structure that I have suggested should in any way cause you simply to pass over, or to disregard in any other way, the careful submissions that were put to you by the Crown and by counsel for the accused. They have their proper place, and we will come presently to come have a look at them. All I am suggesting is that if you are to make sense in the individual case by individual case of the swirl of documents and competing arguments that have been put to you, it would seem to me to be essential that you start off by putting in place a structure which will give, if you adhere to it, a logical form, and a logical sequence, to the way in which you mark and analyse the particular evidence relevant to the particular case. I am bound to tell you yet again that it is a well intentioned piece of advice as a matter of fact. It is not a direction of law. I hope that you will find it of some assistance in fact when you are looking at these matters.

The jury were given a document to take with them into the jury room setting out the paragraphs distinctly numbered 1-6 in the above extract and also the question stated as being at the heart of the Crown case.

27 In relation to ground 10, the relevant passage of the summing up is as follows:

The fourth direction of law has to do with something touched on by counsel; something which, if I may say so, you would understand for yourself. You must set aside carefully as jurors anything that smacks of bias or prejudice or mere sympathy of any kind. It doesn't matter whether it is bias and prejudice in favour of the Crown and adverse to the accused; or bias and prejudice in favour of the accused.

There are a lot of things in this case which are apt to excite, I suspect, strong reactions from people. Questions of payments of taxes, questions of lifestyle, questions of that kind; as a matter of common sense experience in the real world, questions about which a lot of people have very precise, and very strong, views one way or another. It is important to understand that attitudes of that kind, inferences of that kind, predispositions of that kind, have all got to be set firmly and completely and scrupulously apart. The accused is to be tried upon a proper view of the evidence and nothing else.

Submissions

28 Mr. Abdul-Karim for the appellant first referred to Spies v. The Queen (2000) 201 CLR 603, and submitted that the appellant could not be held to have defrauded the Commonwealth, with whom the appellant had no legal relationship, because the appellant’s actions made it less likely that the various companies would pay money owing to the Commonwealth. In this case, the most that could be said was that regular expenditure of the companies’ moneys in various ways left insufficient money to pay the group tax. All this was done openly and without concealment, with full disclosure to the Commissioner of Taxation of group tax liability, and with payment of some of that liability. The evidence that was led of the appellant’s extravagant lifestyle did not support an inference of dishonesty by the company or by the appellant, but was prejudicial. In any event, the amount of money shown to be involved in this lifestyle (payment of car and boat leases, overseas holidays, etc.) were small compared with the group tax liability, and direction of these amounts towards that liability would not have satisfied it.

29 Mr. Abdul-Karim submitted that, especially having regard to the lack of reliability of the documentary material, it could not be said that non-payment of the group tax was due to any dishonesty of the appellant rather than (say) poor profitability of the companies and disorganisation. The lack of dishonest intention was supported by evidence that the appellant had sought to borrow $1 million in order to pay group tax. In respect of counts 6-10, the appellant was not even a director of the company, and in respect of counts 9 and 10, one director Mr. Jack signed the cheques. Mr. Jack was not called by the Crown, and there was evidence that he exercised control over the companies.

30 Dealing specifically with ground 4, Mr. Abdul-Karim submitted that the trial judge did not identify any specific acts or omissions of the appellant that could indicate that he was knowingly concerned. The trial judge implied that it was sufficient if the appellant was aware of the companies’ group tax obligations and of their not being able to meet them. This was a misdirection: R. v. Tannous (1987) 10 NSWLR 303 at 308-9, R. v. Buckett (1995) 79 ACrimR 302 at 306.

31 In relation to ground 8, Mr. Abdul-Karim submitted that in presenting the elements of the offence, and giving advice, the trial judge in effect repeated the Crown case and gave it his imprimatur: cf. B v. The Queen (1992) 175 CLR 599 at 605-6. He did not advert to the defence case at all.

32 As regards grounds 10 and 11I, there were admitted into evidence coloured bar charts showing many luxury motor vehicles and boats, which was material very prejudicial to the appellant. Mr. Abdul-Karim submitted that the material was not probative, because it was not shown that if these items had not been paid for the companies could have satisfied the group tax liability. There was no appropriate direction given as to the use of these charts, or appropriate to avoid prejudice.

33 Mr. Fagan SC for the Crown submitted that, in relation to the six paragraphs concerning the elements of the offence, the only matter as to which a contrary submission was put by Dr. Bishop for the appellant at the trial was that it was necessary to show intent continuing throughout each of the relevant periods. That matter is not a ground of appeal. Mr. Fagan submitted that it was reasonable for the trial judge to explain the elements of the offence in terms of what the Crown had to prove, and to deal with the defence case later, as he did.

34 As regards grounds 4, Mr. Fagan submitted that the Crown case was that the appellant was the mind and will of each company, even when not formally appointed a director; and that accordingly his dishonesty was both the dishonesty of the company and his own knowing concern. This was supported by the evidence of Ms. Place, Ms. Reynolds and Mr. Brierley. As regards Mr. Jack, the material went no further than that he signed some cheques, and accompanied the appellant at various times.

35 The Crown case was that dishonesty could be inferred from the lavish expenditure, despite warnings, and later from the knowledge gained from the fate of earlier companies, and from the moving of employees and the benefit of the contractual connection with Meriton to new companies successively.

Decision

36 In my opinion, the six numbered paragraphs referred to by the trial judge in the summing up and stated in the document given to the jury were appropriate to put the elements of the offences to the jury. Furthermore, in my opinion there was in this case nothing untoward in explaining how the Crown sought to make these elements out: in my opinion, what the trial judge did was no more than state that this was what the Crown was undertaking to prove, leaving the defence case to be given later. Furthermore, the absence of any relevant objection by the appellant’s Counsel means that r.4 applies, and I would not in any event grant leave, at least unless the later grounds concerning failures of the appellant’s Counsel should be made out. I would note that these numbered paragraphs were different from the “well-intentioned piece of advice” referred to in ground 8, although that advice also contained six points: I see no error in that advice.

37 In my opinion also, it was open to the jury to find that the appellant was the mind and will of each company at all times; that he determined that available money in the company should be spent on his own personal matters, money which could have been used to pay group tax; and that the appellant knew that thereby each company would be rendered unable to pay the Commissioner of Taxation so that the Commissioner of Taxation would ultimately not be paid at all. It was also open to the jury to find that this amounted to dishonesty both of each company and of the appellant. It did not matter, in my opinion, that the relevant amounts of expenditure would not have fully paid the group tax, so long as they could have paid a substantial part of that group tax and the expenditure deprived, and was known to deprive, the Commissioner of that substantial part.

38 In my opinion, there is no substance in the argument that the expenditure merely amounted to choices between competing creditors, not all of whom could be paid. It was open to the jury to find that the appellant chose to create obligations for his own personal purposes; and in any event, even the pre-existing leases of motor vehicles, as to which it was submitted that the appellant had not during the period of any charge created an obligation to pay, were all in the name of the appellant and not guaranteed by the relevant companies, so that there never was an obligation on the companies to pay them.

39 The circumstance that there was no attempt to conceal the liabilities, and apparently no attempt to conceal assets available, and also the evidence of the attempt to borrow $1 million, could have been considered factors in favour of the appellant; but the inference of dishonesty was well and truly open.

40 In my opinion, all these matters were fairly before the jury, and fairly put to them in the summing up. The summing up also appropriately warned the jury against bias or prejudice arising from issues of lifestyle.

41 Accordingly, in my opinion there is no substance in the grounds and submissions concerning the elements of the offences.

JOINING OF COUNTS

42 There are a number of grounds concerning the joining of the various counts, and in particular raising the point that this joinder, and also the way the evidence was presented, involved the danger that the evidence would be used by the jury as tendency and/or coincidence evidence despite non-satisfaction of the requirements of ss.97, 98 and 101 of the Evidence Act. It is necessary to have regard to those sections, and also s.95 of the Act, which are as follows:

95(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

…

97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

98(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:

(a) they are substantially and relevantly similar, and
(b) the circumstances in which they occurred are substantially similar.
(3) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

…

101(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

43 The grounds dealing with this matter are grounds 1,2 and 9, which are as follows:

1. His Honour erred in not warning the jury when looking at and evaluating the bar chart evidence, about the danger of drawing adverse inferences of tendency and coincidence that are apparent on the face of the bar chart evidence which inferences must not be drawn by the jury and instead to confine themselves to a proper evaluation of the evidence relating to each individual count of the indictment and in failing to do so his Honour contravened sections 97, 98 and 101 of the Evidence Act 1995.

2. Despite Defence Counsel’s objection to the tender, His Honour erred in the exercise of his discretion by allowing the prosecution to tender into evidence coversheets purporting to analyse and list into various categories money received and expended by the companies subject to the ten indictments despite the apparent danger that such documents would cause the jury to draw inferences of tendency and coincidence adverse to the accused.

9. His Honour erred in the exercise of his discretion to allow into evidence the bar charts and the company coversheets without taking into consideration the requirements of sections 135 and 136 of the Evidence Act 1995, given the danger that the jury was likely to be mislead (sic) and confused by such evidence.

44 The passages from the trial relevant to these grounds are firstly a passage during the hearing concerning the necessity to consider each charge separately, and secondly another passage to the same effect in the summing up:

HIS HONOUR: Members of the jury, so you understand that it is important that you do, there are among the documents, as I think we have already noticed on an earlier occasion, at least one coversheet which brings together in a merged kind of way, figures relating to three of these companies.

You will be told time after time and not least of all by me in the summing-up that you must at all times remember there are ten distinct matters each of which have to be looked at by you distinctively in a way that will be finally canvassed by counsel in their addresses, and me in the summing up. So we will sort out that problem. So Mr Bishop's apprehension, which I think is the foundation of the objection is met, that is to say the risk that such a composite document will lead you into the error of mixing up rather than of keeping separate the individual counts in the indictment. Keep tucked away in the back of your minds the need for there to be exact and distinct each of these companies.

…

First of all it is important to understand that there are within this trial as it were ten trials. You are trying ten separate matters. It is true, of course, that there is some, I would have thought, overlap in areas of the evidence. There is certainly an overlap in what I would be suggesting to you in terms of a practically structured approach to each of the counts in the indictment. All of that said however, it remains a cardinal feature of this trial that each count must be considered separately and must be the subject in the way that I have explained of a separate unanimous verdict. It does not at all follow that having reached a verdict, for example, on the first count, that you automatically extrapolate that verdict through the rest of the indictment. That would be quite the wrong way of doing it. It would be equally wrong, for example, having come to the same verdict on the first six counts, to say something along the fines of: "Well really, six out of ten; there is no reason not to say the same thing about the other four". It really is very important to try to understand that those global approaches are not permissible. There are ten separate matters. You must look at each separately.

45 The other relevant passages are passages in the summing up explaining the Crown’s case on intention:

What, then, is to be said about intention? The Crown's case essentially is that it is a matter of common sense that if you look at those movements of funds in the company, then after all the peripheral debating points have been made the end result is this: the accused was living at a level that required him to have access to large sums of money. If and when he got to the position where he had to choose between using the available funds for his personal non-business expenditure, and cutting down his non-business expenditure and paying his group tax, then in the case of Lymkom his response was completely simple. He kept up his own level of personal non-business expenditure. He did not pay his group tax as by law required; and when it became clear it was not going to be possible to do two of those things at once forever, he transferred out of Lymkom to Kindby, the next company in sequence, his employees, whatever assets Lymkom had that were in a real sense valuable assets in the conduct of his bricklaying business, and every other real function. In a sense, simply shifted the relevant assets and business of the one company into the fresh company with the result, so the Crown contends, that Lymkom was left in such a state that it doesn't matter really how it came to be legally terminated. In every effective business sense it was left asset stripped of anything to which the Commissioner might have recourse to recover the unpaid amounts of group tax.

That is, as I understand it, the essence of the way in which the Crown puts its case, and the Crown argues that if that is right, what can be said about intention except that he intended to bring about that result? He knew how much he was taking out. He knew that there were accumulated amounts of group tax. He knew that they were not being paid, in breach of his obligation to pay properly, the way the law required. He must be taken to have had a normal understanding of the fact that he could not go on forever; and that as I said a moment ago, put in that position he made his choice in the way that I have summarised for you. The Crown case, as I have said, is that if you accept that, it will follow as a matter of course, that he had the requisite intention in connection at least with Lymkom.

…

When you come to look in connection with Kindby at the question of what warnings the accused had about his group tax position, you will bear in mind of course that the warnings that he had and the experiences that he had earlier with Lymkom didn't suddenly vanish. If one is looking to see what was his real position in terms of knowledge and understanding of the kind of situation in which he was finding himself by the time he got to Kindby, not only are those warnings given by Mr Ball in point, but there is as well what I would call his accumulated experience, up to that time. So that, you might think, - but it is a matter for you, - that as one progresses through this succession of companies it becomes logically more difficult to say - “I simply didn't know. I simply didn't understand what the situation was".

That is not a direction of law. It is a comment on the facts and a matter for you. But that certainly is something, however you resolve it, that you will need to consider for yourselves so far as concerns crystallising the Crown and defence cases in the Kindby matter.
Submissions

46 Mr. Abdul-Karim submitted that the danger that the jury would in substance use the evidence on the various counts as showing a tendency to act in certain ways or to have a certain state of mind, and/or to infer that the number of similar occurrences suggested that the defaults must be intentional, was so great that separate trials should have been sought and ordered, and/or that the Crown should have tested the admissibility of this material as tendency and/or coincidence evidence. This danger was made worse by the way evidence was presented, in particular with the bar charts relating to the leases of expensive vehicles overlapping the periods of different companies, and also the coversheets being presented in identical form for the various companies, with no discrimination the different circumstances of different companies concerning incorporation, functioning, directors, etc. In terms of grounds 2 and 9, all this exacerbated the danger. As regards ground 1, there was no, or no sufficient, warning against that use of the evidence.

47 Mr. Fagan submitted that it was never suggested to the jury that there was any reliance on the material by way of tendency or coincidence. The trial judge correctly insisted on separate consideration of each count. The only way in which it was suggested that evidence as to one count might support evidence on the others was that it was put that the knowledge gained by the appellant from the events concerning the earlier companies made it very difficult for him to suggest inadvertence in relation to the later companies. Furthermore, no relevant objection was taken to the summing up in relation to these matters, nor was there any relevant request for re-direction.

Decision

48 In my opinion, the evidence in relation to the early counts was highly relevant and highly probative of intention in relation to the later counts. By the time the appellant was associated with (say) Budscan, he had already seen Lymkom go into liquidation owing about $500,000.00 to the Commissioner, Kindby go into liquidation owing just under $500,000.00, Frego go into liquidation owing a little under $200,000.00, and Taureema go into liquidation owing a little under $900,000.00. That was highly probative of the appellant’s knowledge, understanding of consequences, and intention, in relation to Budscan and later companies, not by way of tendency or coincidence evidence, but purely by way of evidence of knowledge. The high probative value of that evidence in that respect, in my opinion, makes it unlikely in the extreme that any application for separate trials in relation to the different counts would have been successful. A trial in which the Crown was deprived of the opportunity to rely on the material in that way, in relation (say) to the charges concerning Budscan onwards, would have been unfair to the Crown.

49 It is true that there was a danger that the material could have been used as tendency evidence or coincidence evidence. That is, it is possible that a jury could reason that, because such similar events happened in relation to so many companies, the appellant had a tendency to act in this way or to have an intention to do so and to bring about the consequence that a company was unable to pay the group tax. It is also possible that a jury could reason that it is unlikely that a series of such similar events all be accidents, and that therefore some or all of them must have been intentional. The notice requirements of ss.97 and 98 not having been complied with, or dispensed with, and no judgment having been made that the s.101 test was satisfied, s.95 prohibited that use of the evidence. The evidence might also have given rise to reasoning based on continuity: that is, if it were inferred, for example, that the appellant had the requisite intention in the cases of Budscan and later companies, it might be inferred that he had the same intention in relation to earlier companies. Although s.97 refers to a tendency to have a particular state of mind, it is not clear to me that reasoning on the basis of continuity in such a manner would be reasoning by way of tendency: however, Mr. Fagan in effect conceded that it would be reasoning by way of tendency, and I will proceed on the basis of that concession.

50 The next point to note is that the jury was never invited to reason by way of tendency or coincidence, but, on the contrary, was instructed to consider each count as a separate case. Furthermore, they were instructed that they could use the material in relation to earlier counts in order to support knowledge and intention in relation to later counts, as I have stated to be appropriate. The question then is, should there have been a specific direction that the jury must not use the material by way of tendency evidence or coincidence evidence.

51 In my opinion, it is a matter of fine judgment as to whether such a specific direction would or would not have been helpful to the appellant. It could suggest a way of reasoning that the jury might find persuasive, and even act upon, notwithstanding a direction to the contrary. Furthermore, it could lead to further emphasis being given to the legitimate use of the material to which I have referred, by way of evidence of knowledge and understanding. One conceivable result might be to give the appellant a better chance of acquittal on the earlier charges, but to increase his chance of conviction on the later charges.

52 In relation to such a matter, the judgment of Counsel appearing for the appellant at the trial carries some weight, at least unless it is shown to be affected by oversight or incompetence. There is no suggestion here of oversight. The question of whether there has been any material failure by the trial Counsel to act appropriately in the interests of the appellant is to be considered later.

53 Having regard to these considerations, in my opinion, unless the grounds associated with alleged failures of the appellant’s Counsel at the trial are made out, there is no substance in any of these grounds.

DOCUMENTARY EVIDENCE

54 There are a number of grounds of appeal concerning the admission and directions about documentary evidence, especially the coversheets and the bar charts. The relevant grounds are grounds 3, 5, 6 and 11, which are as follows:

3. His Honour erred in allowing the tender of the coversheets into evidence in the light of errors and amendment made to the figures in the various categories purporting to analyse the expenditure of funds alleged to have been siphoned from each company subject to indictment by the accused.

…

5. His Honour erred in failing to emphasise the question of reliability, as that question relates to the required standard of proof, to be placed by the jury on the accuracy of the coversheet relating to Lymkom Pty Limited given the admitted sparsity and incompleteness of the documents, the passage of time, and the admitted amendments made to the relevant figures pertaining to money received and expended by Lymkom Pty Limited.

6. His Honour erred in failing to appropriately or adequately warn the jury about the reliability, if any, to be given to the coversheet relating to Kindby Pty Limited, Frego Pty Limited and Taureema Pty Limited given the question of inter company loans between the three companies and Conego Pty Limited and given the fact that Conego Pty Limited was not subject to any indictment.

…

11. His Honour erred in that he failed to draw the attention of counsel for the Crown and Counsel for the defence to the overlapping time of the first four indictments and the restriction, if any, to be placed on the evidence relating to each indictment.

Ground 9, stated earlier, also relates to this matter.
Submissions

55 Mr. Abdul-Karim submitted, in relation to ground 3, that there were substantial errors and amendments to the figures making up the coversheets. These, he submitted, put into the question the admissibility of the documents, their weight, and how far their prejudicial effect outweighed their probative value.

56 On ground 5, Mr. Abdul-Karim submitted that Ms. Lapsley’s evidence clearly showed that the deficiency in Lymkom’s records, coupled with the age of the transactions, were such that it would not enable any meaningful analysis and allocation of money received to income and particular kinds of expenditure. In relation to ground 6, Mr. Abdul-Karim submitted that the intertwining of the affairs of Kindby, Frego and Taureema, making necessary the preparation of a single consolidated coversheet, meant that there was no reliability in the evidence capable of supporting convictions in relation to these companies.

57 Mr. Fagan submitted that the cross-examination of Mr. Walton showed that there had been a number of errors in earlier versions of the coversheets, which had been dealt with by revision of the coversheets. The only relevant attack to the coversheets in their form as put before the jury concerned small number of matters, of comparatively small amount.

58 Mr. Fagain submitted that, in relation to Lymkom, Mr. Lapsley’s evidence went no further than to say that the exercise she undertook could not be undertaken in relation to Lymkom: there was no evidence from her criticising the methodology of the accountants who gave evidence for the prosecution. As regards Kindby, Frego and Taureema, separate coversheets were prepared in relation to them, showing the individual defaults in relation to group tax: the combined coversheet was to ensure that the jury had a fair picture of the consolidated income and expenditure of these three companies, disregarding inter-company transactions.

Decision

59 In my opinion, Mr. Fagan is correct in his contention that the substantial errors and inaccuracies related to earlier versions of the coversheets, and that the revisions to correct these matters to some extent support the view that the coversheets were the result of careful review and revision. I also accept his submission to the effect that the only relevant errors in relation to the current form of the coversheets were as to a small number of entries, and as to small amounts. There was in fact no dispute as to the amounts of unpaid group tax, as set out in par.[7] above.

60 In those circumstances, I do not think the evidence in question was such that its probative value was outweighed by the danger of unfair prejudice, within s.137 of the Evidence Act. The appellant’s expert did not attack the methodology of the Crown’s witnesses, and in my opinion her evidence to the effect that she was unable to conduct her exercise in relation to the first four companies did not greatly affect the probative value of the coversheets in relation to those companies.

61 In my opinion also, the attacks on the coversheets and the evidence of Ms. Lapsley was fairly put to the jury in the summing up.

62 Accordingly, in my opinion, these grounds of appeal fail.

ALLEGED LACK OF BALANCE

63 A number of grounds of appeal alleged unfairness in the summing up. I have already referred to ground 10 in particular. The general ground relied on in this respect is ground 7, as follows:

7. In his summing up to the jury His Honour erred in that he emphasised the prosecution’s case in such a way that it was unfair to the accused and lacked judicial balance to the point of rendering the whole trial a miscarriage of justice.

64 The principal directions concerning the defence case were as follows:

The accused's case takes an entirely different focus. It says that the basic analysis in any event is flawed; although, as far as Lymkom is concerned, the defence attack has only pointed, as I understand it, to particular matters said to be errors. It will be a question for you whether you think that those few things that have been pointed out in that particular way, or any of them it has to be said, if accepted really make a difference to the kind of analysis upon which ultimately the Crown relies. To the extent which you think it does make a real difference the reliability of the coversheet does not simply fall to the ground completely; but it certainly is less than what it would otherwise be. To the extent that you think that the particular items criticised in that Lymkom exercise do not make any real difference to the figures at which you need to be looking for purposes of assessing the Crown case as it has been presented, then it has not made its point.

In connection with the number of changes, the evidence is perfectly clear; although what is not so clear, I would suggest to you, is where that actually leaves you. The figures upon which everybody appears to be prepared to proceed are that overall there were some 326 or so changes; and that between the 1st of May and the 8th of June there was some 326 of them. (This is plainly incorrect but I do not have now the correct figures.) But of course those bare statistics do not take the matter very far; for it becomes necessary then to ask, does it not; What is the distribution of those changes? What actually are they? How are they distributed? What do they all add up to? For example, if it proved to be the case that the 326 changes had all been made in one coversheet relating to a series of supporting documents; by one coversheet in connection with one company; that might point in one direction. If the evidence showed that the 326 were spread in a scattered sort of way more or less evenly over all of the analyses supporting all of the company coversheets, that would suggest an entirely different weight and inference. There is grafted on to that, the unchallenged evidence of Mr Walton that, so far as concerns these changes, it has to be remembered that they were in many cases related changes. His evidence is that 326 changes derive in fact from 14 primary changes. He gave, you remember, in his example: SH Lock-one change; 85 ripple effect changes, that sort of thing. The difficulty is that the evidence simply does not take the matter any further than that. It is a matter for you, but you might think that it does not really help simply to appeal rhetorically to the raw figures unless one can say that behind the raw figures is a distribution of error of such a kind as an intelligent mind would accept as indicating fault of a real, fundamental kind in the reliability of the end result - that is, the coversheet itself. It is a matter for you, but that is as far as the evidence goes, as I understand the evidence upon that part of the matter. You will not have over-looked, of course, in connection with that attack exhibit D, which is the schedule of payments actually made by Meriton to these various companies. That will tell you something about what, according to Meriton's records, - and it is not shown that Meriton has any axe to grind in this trial, - were the actual recorded payments from that company to the various companies, Lymkom in particular among them, with which we are concerned.

In connection with the question of intention, a number of submissions was put to you as part of the defence case, and it is necessary that you be reminded of them as follows.

It was said that there were several things the combined effect of which tended to show that the accused could not have had the intent which the Crown has to prove that he did have, in accordance with the essential element that I have set out in the earlier document. In aid of that submission, it was put to you that you would ask: why would he spend more than he should have spent? It was said that he did it because the company was poorly organised. You might accept that that was so. That he was by nature a big spender. That you might think to be a reasonable thing to say. That he had a kind of disconnection from reality and that he had a desire for status. As to the disconnection from reality I will just say this to you.

When you are considering that submission you will need to consider it with a proper precision. You will need to ask what it is that constitutes the reality from which it is said the accused was disconnected. The question is not whether he was endangering anyone. The question is not whether he was overly optimistic or overly pessimistic. The question is: did he not understand that he had the obligation to pay the group tax that he was being paid? That one of the things that was standing in the way of finding the money to pay it were the drawings that he was making out of the company in the way that he accepted, but in particular those funds expended personal, and his own wages. That is a matter for you. Once again, use your common sense. Do you think that it is a reasonable possibility that this man was disconnected in the way that has been suggested from that kind of reality as to what was happening in his company? It is a matter for you.

It was put to you in that connection that you must be satisfied that there is no other rational conclusion than that he set out to overspend in order to strip the companies bare to the intended loss of the Commissioner. It seems to me that that inverts the Crown's case. The Crown's case seems to me to be, not that he set out to overspend, or to strip the companies bare, but that he set out to strip the companies bare in order to overspend and the two things are not the same. The Crown case is that he chronically overspent; that the only way he could do it was to use funds which ought to have been applied in payment of the group tax. So the spending came first; with it the need to find the money; with that need, the opportunity, and the intentional taking of the opportunity as the Crown puts it, to take out of the company monies which should have been used to pay the Commissioner for group tax.

As part of the defence argument it is said that the Taxation Office was relaxed in its pursuit of Lymkom as a company, and of the accused as the person concerned with the direction of Lymkom; and that somehow that relaxation on the part of the Taxation Office goes to this question of intention. It is necessary to think that through carefully. Let us get the starting point right.

We are not conducting an administrative enquiry into the way in which the Taxation Office operates or should operate. There are a lot of things that might be said about what does indeed; I think, seem to have been a quite marked lapse of time by the Taxation Office; but you will need to think through very carefully, not in some reflex reaction to that criticism of the Taxation Office, but to think through carefully where that actually takes you as a matter of reasoning. What does it matter, you might well ask, from the point of view of the obligation of the individual at law to pay the tax, that the tax office does not pursue him? If the case were one where it was being suggested that the tax office had pursued him, and that that had concentrated his mind wonderfully; that he had mended his ways after that experience; then one can understand how it might have been argued that his intention, prior to being pursued by the Taxation Office, was something requiring to be looked at carefully. But that is not this case. All this case discloses is that, for whatever reason, the Taxation Office did not follow up these defaults as promptly as it should have done.

I tell you what I am bound to say: that is a matter of comment upon a matter of fact; and not a direction of law. For myself, I cannot see how that goes at all to the question of the intent of the accused. His obligation was not to pay the tax if he was pursued for it. His obligation was to pay the tax when it fell due. If he knew that it was falling due; that it was not being paid; and that part of the reason why it was not being paid was because of the expenditure as I have discussed it with you, - then for myself, - as I say, it is a matter for you, - I find it difficult to see how it can be said that a relaxed enforcement approach by the Taxation Office really goes at all to that question of intent. But in the end that is a matter for you and not for me.

It was put as well as part of the defence case that relevant to the question of intent was whether or not the accused had walked away from the company, or bought it to an end himself; or had it bought to an end by some creditor or other. The Taxation Office you could see being relevant in relation, not to Lymkom, but to some of the later companies. Once again, you need to think that through carefully. You need to ask whether it really matters in the end. You need to ask whether the real questions are these.

What happened when Lymkom came to an end? Not when it was dissolved, but when it ceased to trade in a real commercial sense, what happened? The Crown case, - you might think amply supported by the evidence of Mrs Place but that is a matter for you, - is that it is perfectly happened: everything was just transferred across, in the way that I discussed, to the next company in line, which I think was Kindby.

On that approach it simply does not matter what the legal technicalities were about the bringing to an end of the company. What matters is what in the real commercial world happened with the movement out of the one company of assets into the fresh one.

It was put that there was no evidence that the accused had, for example, changed the group tax returns, and that is true. It was put that the suggestion that there had been false cheque butts could be refuted by a proper consideration of actually what it was for which the cheques were drawn and paid out. You will have a schedule before you in that regard. And there is nothing I can tell you usefully about that.

You were asked to consider on the question of intention, and it is part of the defence case, what the accused had done. Things the accused had done which were not consistent with a guilty intention of the required kind. You were asked to consider in that respect his borrowing, although much later in time than the time relevant to Lymkom, of one million from Mr Trigubuff in order to square, if I may put it that way, accumulated arrears by that time over a number of companies, up to, and I think including, Milcoy. It was put to you that his attempt to organise that arrangement, although it proved to be fruitless, is some warrant for the view that he did not have at the relevant times the intention to strip these companies in the way made out by the Crown case. Once again, you need to look at that carefully. All the evidence shows is that he made the application for one million; and that for whatever reason, and he doesn't know what the reason was, he was unsuccessful in getting it. Where do you go from there, you have to ask. The case is not one, for example, in which the evidence establishes that he got the million dollars; paid off the arrears; and thereafter had no further arrears. It is not that sort of case, on the evidence. It is not the case that he did not get the million dollars, but thereafter was particular to do what the law required of him in connection with the payment of group tax for the relevant companies in the chain. It is not that sort of case, on the evidence. So you might think that a fair way of putting the point, - but again, this is a matter of fact for you, - is this attempt to get one million from Mr Trigubuff is really neutral, because without more, it doesn't really take you anywhere in a logical kind of progression. That is a matter for you.

In addition to things that he is said to have done or not done, there are things that he said or did not say, in connection with his obligations to pay group tax. Well, Mrs Place gave evidence to which you were referred that he had told her from time to time that he wanted to pay, tried to pay, would do better in the future than in the past. She also said that on occasion she had asked him about it, and he had said simply there wasn't any money to pay for it. That is what the evidence is. Once again it is a matter for you but you might wonder and you have to sift carefully back where he takes you in a substantive logical kind of way. That is a matter for you. Now, I have imposed all of that upon you in connection with a discussion of Lymkom, because those competing arguments, although they vary in matters of fine detail, are really constant competing arguments throughout each of these charges.

65 There were further directions concerning Ms. Lapsley’s evidence as follows:

Commencing with the Budscan case, that is to say count 5 in the indictment, it does become necessary to consider Miss Lapsley’s evidence in a much more particular way than I have yet done. And it becomes necessary to consider more particularly her profit and loss accounts, and questions that arise in connection with them. Once again it is necessary may I suggest, to begin by putting in place some kind of structure that will focus your analysis of that material. Can I suggest that again you might ask a series of questions as follows.
1. What was she actually asked to do?
2. When was she asked to do it?
3. What data was provided to her in aid of her task; and what difficulties did she encounter in that connection?
4. What method did she employ; and insofar as that method rests upon certain assumptions are the assumptions sound?

And finally, if her approach is valid what is the consequence to the Crown case? That seems to me to be a superstructure, if I may so refer to it, of questions which would focus an orderly kind of consideration of Miss Lapsley's evidence.

Let us take the last question first. If it were to be accepted that what she says is correct: that is to say that her method is correct, that her assumptions are correct, that everything necessary to be taken in favour of her analysis is taken in favour of it; then that would do a great deal of damage to the Crown case, because that would entail that the reliability of Mr Walters' analyses would come under question; but it would not necessarily entail that the Crown case had simply collapsed, because, once again, it is not essential to the Crown case, as I understand it, that absolutely every fast item in every coversheet be accepted. What is essential to the Crown case is that it be accepted that it is possible to estimate fairly and reliably the amounts that were being taken out of the companies successively by the accused; and, as I have said before, to juxtapose that with the amount of arrears of group tax, and in particular with the final debit of group tax arrears.

What was she actually asked to do? I want to answer that, and some of the successive questions, by brief references to what she herself said, rather than to paraphrase it and risk not putting it to you accurately. She said at 599 what she had been asked to do in relation to each of the exercises that she had carried out. And this is what she said:
"A. I was asked to have a look at the coversheet and to try and construct a different position of how the company was operating. As I said I cannot do a true position so I have tried to apply fairly what I thought would be normal operating average percentages for a company in this area."

Can you just look at that a little more carefully.
"A. I was asked to have a look at the coversheet and to try and construct a different position of how the company was operating."


That is the first thing. She then goes on to say, - as you will recall, I am sure, she said a number of times, - that her basic concept of what an accountant in her position should be doing in such a context was to strive to reproduce what she called a true and fair analysis; that it could not be true in the sense that it could not be done in a way that was confidently accurate and precise to the fast detail, because a combination of age and some records made that impossible. But that at least in those cases where she did produce a Profit and Loss Account, that represented her best effort at producing something which, if not true in that pedantic narrow sense, was at least fair in terms of an overview of the operations of the relevant company. "I was asked to have a look at the coversheet and to try and construct a different position of how the company was operating."

When was she asked to do it? She gave evidence on the Monday, and her evidence was that she had been asked, not on the preceding Friday, but on the Friday before that. She was asked what data had been given to her in connection with her task, and that is a matter of some importance. What would be the sort of records you would want to get to be absolutely confident as an accountant? She says:
"A. I want every piece of paper that goes into running a company. All prime source documents such as invoices, receipts, contracts, quotes for contracts, are all important elements of arriving at an opinion about a Profit and Loss Account and the balance sheet."

She said she was lucky if 5 percent of the work that she did ever measured up to that standard; and she said the rest of the materials that normally found their way across her desk were incomplete in one form or another. She was asked:
"Q. How would you describe the source material that you had for the purpose of looking at the company Budscan?"

May I pause there, she is being asked about Budscan because that was the first in sequence of the profit and loss accounts that she carried out; but what she had to say in that regard did not vary in connection with the subsequent companies as to which she did produce a Profit and Loss Account. She says:
"A. In a true accountant sense I had no prime source documents. For example, I did not have invoices. I did not have receipts. I did not have contracts and I didn't even have original bank statements, deposit slips, cheque butts or cheques. I have photocopies and that is often not acceptable in a good accounting situation. Original documents are preferred and need I say, are definitely required by the Tax Office in the event of any form of investigation or audit. So, in a true sense for accounting purposes original records are always required."


That is her description of the position in which she found herself in terms of materials available to her in carrying out her accounting task. What method did she employ? It is simple enough and you will see it on the face of the profit and loss accounts.
She assumed the companies that with the turnover respectively of the various companies with which she was concerned, could not possibly be running in a way which left such comparatively small amounts assigned to those particular items as to which she preferred to use what she said were in her experience representative averages. I need not go to the fine detail of it: you will have it in exhibit 2. But it is the subcontractor, equipment hire, materials, subcontractor/equipment, hire/materials entry, and other business/deductible operating expenses which are the two items which are constantly adjusted by her. She adjusts them upon the basis that a fair representative allowance would be 25 percent in the case of the subcontractor equipment hire materials in respect of the other business deductible operating expenses. Again the fine detail you can see for yourself. The important point to take hold of is that those assumptions entail a treatment of those items in away that increases them very substantially over Mr Walters' analysis. By a factor of three or four times in some, if not in perhaps all, of those cases.

The criticism made of that was put fairly and squarely in cross-examination and it is in the end simple enough. It is that if you look at the way in which her assumptions work out in the state of the knowledge that we do have of the movement of funds in terms and that turned out of these companies it just cannot be right. Representative average or no representative average, that her 25 percent and 10 percent cannot be valid because there would not be enough money available in the company, and in the relevant companies, to fund that sort of level of expenditure. In the end that is as good an illustration as I can give you of a question of fact which you have to decide. You saw and-heard her, you heard that criticism put to her, you heard from herself at the end of her cross-examination this proposition. She was asked this question by the Crown Prosecutor. It was his closing question:
Q. Going back to these coversheets - I don't want to ask you to look at any of them, just take this as a general proposition, would you agree with me that if the business expenses properly attributable to running the bricklaying operations were relatively low, of the order which are attributed to these various coversheets, if they were available, then the absence of funds in the companies to meet the group tax liabilities is substantially accounted for by the personal expenditure to Mr Walters?

A. As given on the coversheets, yes."

And that goes back yet again to that proposition which lies at the heart of the Crown case. That in the end, after all the adjustments have been made, the question is: was there taken out of the company in those two categories money which, if it had been left in the company, would have been sufficient to pay the group tax arrears; and is it a fair inference, and indeed is it the only fair inference at the end of the day, that he did not leave the money in the company but continued to spend it on his personal or business expenditure, having in mind that that would entail that the arrears were not paid, and that that was just unfortunate from the point of view of the revenue. That continues, always, to be the centre of the Crown case just as it continues, always, to be the centre of the defence case that that is too strict a view; that he did not understand, and therefore did not really intend, any such thing.

66 There were further directions concerning Mr. Jack:

For my present purpose the important part of that passage is the submission:

"But the point is the accused is at a disadvantage because the precise relationship that existed between the accused and Mr Jack cannot be identified."

I want to say some things to you about that. They are important; and because I cannot give them to you in writing for the reason I explained, I want to ask you in a very particular way to attend to what I say and to make a note, those of you who can do that, so that in the jury room you will have clearly in front of you these propositions.

One: it was submitted correctly that you have not had the advantage of seeing and hearing Mr Jack. It is essential to understand that you may not speculate in any way whatsoever as to what Mr Jack might or might not, or could or could not, have said had he been called to give evidence. That feeds back into something that I said to you at the very early stages of the summing up, and it is important, so important. You will remember that I told you that I would be surprised if you don't find yourselves more than once at a point in your considerations where you were faced simply with a gap in the evidence; and that if there was a gap, well there was a gap, and you couldn't fill it by conjuring evidence out of thin air; that you had to exercise your powers of good sense and good judgment on the evidence that you do in fact have. Here is a precise illustration of that point. There will be a very obvious and understandable temptation to say "Well look; I think I have got an idea of what Mr Jack might have said if he had been called”; and you must be on your guard against that. He wasn't called. We don't know what he would have said. We have no way of knowing it, and there it is. The one thing you can't do is speculate about what he might have said had he been called. Please be careful about that.

Proposition 2. It was submitted, correctly, that the evidence discloses that it is not the fault of the Crown that Mr Jack was not called to give evidence. You were told, correctly, that all reasonable efforts to locate him had been made and had been fruitless. It doesn't matter why. What matters is that that is the fact.

Thirdly. You heard upon those premises, the proposition that I read to you just a moment ago. Now that submission of unfair disadvantage to the accused by reason of the absence of Mr Jack cannot, in my view, be allowed to stand without some proper comment being made about it, for your assistance, in deciding as you will have to do, what weight you are prepared to give to that submission. For the weight that you are prepared to give to that submission goes to the very heart of your consideration, not indeed of all of these ten companies, but certainly of the fast two of them in the sequence with which you are concerned, that is to say Aloprom, count 9 and AJ, count 10.

I want to suggest for your consideration that you should take into account these matters. First, you have had no in-Court explanation from the accused of his role, if any, of the management and control of the affairs of Aloprom and AJ. That is the first thing to take note of.

Secondly, he was, and is, under no obligation to give an in-Court explanation. In that connection I remind you, but without repeating them, of the directions of law that I gave you in the general directions section yesterday.

Thirdly, the Crown is as entitled to a fair trial as is the accused. You should consider carefully therefore, and before you do in fact accept the submission made by counsel for the accused, whether you are prepared to accept as fair, and as deserving of weight in your view as sole judges of the facts, the submission that the absence of Mr Jack has placed the accused in a position of unfair disadvantage. You might well think that in the circumstances as I have now outlined them for you, it would not be fair to accept at face value that particular submission. I am bound however to tell you, as I do plainly, that that is a comment of mine upon a matter of fact and not a direction of law. You are therefore free to take it up or to leave it alone as you think fit; but for the reasons to which I have referred, I don't think that I would properly do my job of seeing that there is a fair trial from everybody's point of view if I did not at least bring those matters to your attention and suggest that at the very least you should consider them. Whether or not, having considered them, you give effect to them is, as I say again, a matter of fact for you and not a matter of law for me. Is all of that clear ladies and gentlemen?
THE JURY RESPONDED IN THE AFFIRMATIVE

Submissions

67 Mr. Abdul-Karim submitted that these directions were dismissive of the defence case, and did not put it fairly: Green v. The Queen (1971) 126 CLR 28 at 34; Cleland v. The Queen (1982) 151 CLR 1 at 10.

68 Mr. Fagan submitted that a significant part of the appellant’s case was to suggest that Mr. Walton’s analysis of income and expenditure was not reliable and the particular complaints were put to the jury company by company in the course of summing up. The defence case was properly put, and any comments on it were not inappropriate and were qualified by the direction that the view the jury took about the matter was entirely up to them.

Decision

69 In my opinion, the substance of the defence case was fairly put, particularly in the quoted passages. In my opinion, the trial judge’s comments were not inappropriate, and were appropriately qualified.

ALLEGED FAILURES OF COUNSEL

70 The following grounds relate to alleged failures by the appellant’s Counsel, both in support of earlier grounds (as indicated earlier) and also as independent grounds of appeal. The relevant grounds are as follows:

11A. Despite specific instructions given to Defence Counsel prior to the hearing regarding the Appellant’s life style, ownership of luxury motor vehicles, boats, overseas holidays and other personal expenditure in the years prior to 1989 Defence Counsel failed to call evidence in response to the Crown’s case against the Appellant on the question of expenditure relating to life style, ownership of luxury motor vehicles, boats, overseas holidays and other personal expenditure generally.

11B. Despite specific instructions given to Defence Counsel prior to the hearing as to the method and manner in which the Appellant operated his bricklaying business with Meriton Apartments (giving Defence Counsel names of these prior companies and the approximate number of employees) prior to the period covered by the indictment, Defence Counsel failed to call the following evidence in response to the Crown case regarding each of the ten companies named in the indictment – the names, the period of operation, the method and manner of operation and the number of employees of each of the prior companies.
Evidence

71 Evidence on this matter was led on appeal. There was affidavit evidence from the appellant, from Mr. Adamson his solicitor at the trial, and from Dr. Bishop his Counsel at the trial. There was some cross-examination of Mr. Adamson by Mr. Fagan.

72 It was common ground in this evidence that the appellant gave instructions to Mr. Bishop to the effect that, prior to the period of the charges, he had enjoyed a similar lifestyle and incurred similar personal expenditure (including motor vehicles, boats, and overseas holidays) without tax problems; and also to the effect that the business was frequently underpaid by Meriton Apartments. A statement by the appellant taken by Mr. Bishop was tendered, but the appellant did not give evidence of what evidence he would have given, if called, in relation to the subject matter of the charges. It was also common ground that slides of figures, presumably the coversheets, were shown to the jury during the opening, and not objected to.

73 Mr. Adamson gave evidence that Mr. Bishop had instructions to apply for separate trials of each count, and did not do so; that he advised the appellant that the evidence of his lifestyle had nothing to do with the case, which was based entirely on tendency and coincidence evidence of a type that would not be allowed; and that, if the Crown was allowed to develop a case based on the appellant’s extravagant lifestyle, he would introduce evidence of the appellant’s prior dealings through Ms. Place and the appellant’s daughter. The appellant gave evidence that Dr. Bishop had said he would object to evidence of the extravagant lifestyle and that those objections would be successful. Mr. Bishop denied these allegations.

Submissions

74 Mr. Abdul-Karim submitted that the danger of prejudice from the joinder of all the counts and the way the evidence was presented in the bar charts and the coversheets were extremely prejudicial to the appellant, so that the failure of Counsel to seek separate trials and/or take appropriate steps to avoid prejudice amounted to incompetence. It was incompetent for Counsel not to have called evidence to the effect that the appellant’s lifestyle had not changed from that which existed prior to the period of the charges, and of the problems in getting full payment from Meriton.

75 Mr. Fagan submitted that the failure to seek separate trials, and the failure to take more objections in relation to overlapping evidence and to seek specific direction concerning tendency and coincidence evidence, did not indicate incompetence.

76 As regards the evidence concerning the appellant’s lifestyle and dealings with Meriton, Mr. Fagan submitted that this material could only effectively have been presented by calling the appellant and thereby opening up cross-examination of the appellant in relation to large unidentified amounts which had not been attributed to private expenditure, as well as concerning the matter generally. Dr. Bishop’s evidence was that it would be unthinkable to have called the appellant: this was a considered decision, not an oversight, and one that could not be regarded as incompetent.

Decision

77 In so far as there is a conflict in the evidence between Dr. Bishop on the one hand, and Mr. Adamson and the appellant on the other, I prefer the evidence of Dr. Bishop. I think it is improbable in the extreme that Dr. Bishop would have advised that the lifestyle evidence could be successfully objected to, or that the Crown case was based upon tendency and coincidence evidence. I think it is also unlikely that Dr. Bishop would have undertaken, if lifestyle evidence was allowed, to lead evidence of the appellant’s prior dealings, and then not do so. Dr. Bishop’s evidence was called by the appellant, and there was no application on behalf of the appellant to cross-examine him.

78 In my opinion, substantially for reasons already given, there can be no inference of incompetence drawn from the failure to seek separate trials of different counts, the failure to exclude the documentary evidence, or the failure to apply for additional directions concerning tendency and coincidence evidence.

79 Mr. Abdul-Karim accepted that, in order satisfactorily to present evidence as to the appellant’s lifestyle prior to the periods of the charges and as to underpayment by Meriton Apartments, it would have been necessary to call the appellant. This would of course have exposed the appellant to cross-examination in the way referred to in Mr. Fagan’s submissions. In my opinion, the evidence would in any event have been of small assistance to the appellant’s case: it would have left untouched the evidence of warnings by the accountant as to the consequences of the appellant’s expenditure from assets of the earlier companies, and the knowledge of those consequences gained through the failure of those earlier companies with massive debts to the Commissioner.

80 In all these circumstances I would not draw any inference of incompetence from a decision not to call the appellant, let alone an inference of incompetence of the nature discussed in R v. Birks (1990) 19 NSWLR 677. Furthermore, in my opinion, if it is wished to rely on a failure to call an accused person as a ground for alleging that a trial has miscarried, it is incumbent upon the appellant in such cases to give detailed evidence as to the substantive evidence that the appellant would have given if called. That has not occurred in this case.

81 For these reasons, in my opinion these grounds of appeal fail.

OTHER GROUNDS

82 The remaining grounds, which I have not yet dealt with, are grounds 11C-11G, and 11J. They are as follows:

11C. Given the emphasis placed by the Crown in presenting its case in against the Appellant’s lifestyle, ownership of luxury motor vehicles, boats, overseas holidays, use of drivers and other person expenditure, His Honour erred in failing to inquire or draw to the attention of Defence Counsel to the question of the Appellant’s lifestyle and ownership of motor vehicles, boats, overseas holidays, use of drivers and other personal expenditure prior to 1989.

11D. Given the evidence that each of the ten companies named in the indictment conducted most if not all of its bricklaying business with Meriton Apartments, His Honour's failure to draw to the attention of Counsel for the Crown and Counsel for the Defence the Appellant's dealings with Meriton Apartments and the manner and method of any such dealings before January 1989 and such failure amounted to an error tantamount to a denial of procedural fairness.

11E. His Honour erred in that he failed to consider or raise with Counsel for the Crown and Counsel for the Defence the relevance, if any, of the question of amendments to the Taxation Laws and Regulations during the period covered by the indictment and how those amendments reflected on the question of a company and its directors' obligations to make Group Tax and PAYE tax payments from time to time.

11F. His Honour erred in that He failed to consider or raise with Counsel for the Crown and Counsel for the Defence during the evidence led by the Crown from Dianne Ruby Reynolds (tp 164) the question whether during the period covered by the indictment, Meriton Apartments had any legal obligation to deduct Tax or PAYE Tax from payments to the appellant pursuant to contracts with the Appellant with the companies named in the indictment and also whether any deductions were in fact made from the invoices submitted by the Appellant and the reason(s) for any such deductions.

11G. Defence Counsel failed to act in accordance with specific instructions to inform the Court at some appropriate time that the three other counsel who sat with Defence Counsel from time to time during the trial were in fact Readers and were not part of the Defence legal team paid or renumerated (sic) in any way by the Appellant.

…

11J His Honour erred when he failed to ensure that the indictments were properly read out to the Appellant as presented to the Court by the Crown thereby causing confusion to the Appellant when making his pleas on the question of whether the intent to defraud was alleged to be that of the company named in each count or that of the Appellant.

Submissions

83 In relation to grounds 11C to 11F, Mr. Abdul-Karim submitted that the trial judge’s failure to raise with both the Crown and defence Counsel the matters referred to under the previous heading, and also the question whether Meriton Apartments was under any legal obligation to retain funds from payments to the appellant to be forwarded to the Tax Commissioner, amounted to a miscarriage of justice. He submitted that this followed from the trial judge’s position as the Tribunal of Law in the running of the trial, and from the importance of these questions to all ten counts.

84 In relation to ground 11G, Mr. Abdul-Karim submitted that the defence Counsel’s appearance with three other robed Counsel would have given the jury a false impression of affluence of the appellant. It was never explained to the jury that they were readers, appearing without payment for their own education.

85 In relation to ground 11J, the transcript of proceedings when the appellant was arraigned before the jury records the charges being read out differently from the way they appear in the indictment, and set out in par.[1], in that the word “was” is omitted and the word “defrauded” appears instead of “defrauding”. Mr. Abdul-Karim submitted that this caused confusion.

Decision

86 As to grounds 11C to 11F, there is in my opinion no substance in these submissions. In the circumstances of this case, there was no obligation on the trial judge to intervene in the way suggested.

87 As regards ground 11G, the circumstances referred to do not in my opinion raise any possibility of a miscarriage of justice.

88 As regards ground 11J, in my opinion the differences are probably errors in the transcript. Even if they are not, the meaning of what was recorded as being read to the jury was clear, even if the expression is ungrammatical. Plainly, the allegation was that the respective companies defrauded the Commonwealth and that the appellant was knowingly concerned in this.

SENTENCE GROUNDS

89 The grounds relied on in the application for leave to appeal in respect of sentence:

12. His Honour erred in considering the measure of cumulation for Counts 5, 6, 7, 8, 9 and 10 to be based on the more frequent shuffling of companies commencing in Count 5 relating to Budscan Pty Limited and as an indication of culpability.

13. His Honour erred in that he failed to take into consideration in the imposition of sentence the prisoner’s history of 31 years as a hard working responsible, law abiding, citizen and reflect that history in either reduction of the head sentence on each count or waiving of the measure of cumulation.

14. His Honour erred in taking into account other offences relating to breaches of restraining order made on 13 May 1998, after the prisoner’s arrest when on a global view the said breaches directly relate to the indictments subject to the 10 charges for which the prisoner was tried.

15. In imposing sentence His Honour erred in placing greater emphasis on the question of deterrence than the prospect of rehabilitation.

16. In imposing sentence His Honour placed undue emphasis on the fact that the prisoner did not give evidence either at the trial or the hearing on sentence as some sort of indicators from which adverse inferences could be drawn on the questions of lack of contrition, degree of culpability, and honesty.

17. His Honour erred in not requesting a pre-sentence report to enable him to take into consideration subjective features of the prisoner’s life including the prisoner’s views on the questions of remorse and contrition.

Submissions

90 In relation to ground 12, Mr Abdul-Karim submitted that the appellant was not a director of the companies referred to in counts 6 to 10, and that the trial judge wrongly took this as indicating increased culpability, in that he was concealing his position as controller of the companies. He submitted that in fact, due to the failure of the earlier companies, the appellant could not be a director; and also, the fact that he was not a director meant that the “shuffling” of these companies was not entirely within his control.

91 As regards ground 13, Mr. Abdul-Karim submitted that the sentences were such as to show that the appellant’s good character had not been appropriately taken into account. Furthermore, the trial judge did not consider alternatives to full-time custody.

92 As regards ground 14, Mr. Abdul-Karim submitted that the trial judge erred in treating the five breaches of restraining order as relevant to the appellant’s culpability in relation to the offences for which he was tried and convicted.

93 As regards ground 15, Mr. Abdul-Karim submitted that the trial judge failed to consider whether a lesser or different sentence would better promote rehabilitation, especially having regard to the appellant’s age and the unlikelihood that he could work again upon release from the sentences actually imposed. He submitted that the primary judge also failed appropriately to take into account hardship to the appellant’s seven year old son, whose mother had died when he was five months old.

94 As regards ground 16, Mr. Abdul-Karim submitted that the trial judge wrongly drew adverse inferences from the appellant’s failure to give evidence at the trial or in the sentencing procedure.

95 Finally, as regards ground 17, Mr Abdul-Karim submitted that the appellant’s Counsel or the trial judge should have requested a pre-sentence report, and the failure to do so contravenes s.16A(2)(p) of the Crimes Act. Such a report would have been important in relation to such matters as the position of the appellant’s son, and remorse and contrition.

96 Mr. Fagan SC submitted that the appellant’s Counsel had conceded that a full-time custodial sentence was appropriate; and that a pre-sentence report was generally required where there was a real question of alternatives to full-time custodial sentence.

Decision

97 As regards ground 12, in my opinion the sentencing remarks do not suggest that the primary judge treated the appellant’s culpability as increased by the use of others as directors. He proceeded on the basis that, although the appellant was not a director of the later companies, he did have effective control of them; and this was clearly justified by the jury’s verdict and by the evidence. His decision to cumulate sentences as he did was in my opinion an appropriate exercise of his discretion and did not lead to an excessive sentence over all.

98 As regards ground 13, the appellant’s good character was explicitly taken into account, and in my opinion the sentences are not such as to suggest it was not given appropriate weight. As regards ground 14, in my opinion it was appropriate for the trial judge to take the other offences into account as he did, pursuant to s.16BA of the Crimes Act.

99 As regards ground 15, in my opinion, the trial judge did take into account the relevant matters. As regards ground 16, the trial judge did not draw any adverse inference from the failure of the appellant to give evidence: rather, he said in effect that he was unable to afford any leniency to the appellant based on contrition, because no evidence of contrition had been given. Finally, in my opinion, the absence of a pre-sentence report did not in any way vitiate the sentencing procedure.

CONCLUSION

100 For those reasons, in my opinion the following orders should be made:

1. Appeal against convictions dismissed.
2. Leave to appeal against sentences refused.

101 STUDDERT J: I agree with Hodgson JA.

102 DOWD J: I have had the advantage of reading the judgment of Hodgson JA in draft form. I agree with the proposed orders and His Honour’s reasons.

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