R v Wilkie

[2008] NSWSC 1064

Reported Decision: 220 FLR 230

New South Wales

Supreme Court

CITATION:	R v Wilkie [2008] NSWSC 1064
HEARING DATE(S):	1 October 2008
JUDGMENT DATE :	10 October 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
DECISION:	Motion refused
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Application for directed acquittal on two of three counts in indictment
LEGISLATION CITED:	s229 Companies Code s 232(2) Corporations Law
CATEGORY:	Procedural and other rulings
CASES CITED:	Angus Law Services v Carabelas (2005) 226 CLR 507 Corporate Affairs Commission v Papoulis (1990) 20 NSWLR 503 Marchesi v Barnes (1970) VR 434 R v Burroughs, Mainprize & Wilkie, 28/10/05, Howie J
PARTIES:	REGINA (Commonwealth) - Crown Daniel WILKIE - Accused
FILE NUMBER(S):	SC 2007/2619
COUNSEL:	A MacSporran SC; M Wigney SC; T Berberian - Crown L Robberds QC, M Thangaraj - Accused
SOLICITORS:	Commonwealth Director of Public Prosecutions - Crown Speed & Stracey - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

MICHAEL GROVE J

10 October 2008

2007/2619 REGINA v Daniel WILKIE

JUDGMENT – On application for directed verdict

1 At the close of the Crown case the accused moved for a directed acquittal on counts 1 and 3 of the indictment. I refused the motion and indicated that I would later express reasons. Those reasons follow.

2 Each of those counts charged a breach of s 232 (2) of the Corporations Law. The kernel of the submission was that the Crown had failed to lead evidence, that as a director of FAIG, the accused either profited from his position as a director or failed to avoid a conflict of interest. It was acknowledged that an identical submission was rejected by Howie J in a trial at which, coincidentally, the accused was also, with others, charged. It was submitted that his Honour was not referred to relevant High Court authority and that his ruling was wrong. I consider that it was not. See R v Burroughs, Mainprize and Wilkie 28 October 2005.

3 Reference was made to the history of s 232 and in particular a discussion of one of its “predecessors” which was s 229 of the Companies Code, which had been traced in the judgment of Gummow and Hayne JJ in Angas Law Services v Carabelas (2005) 226 CLR 507. Also referred to were several cases dealing in one way or another with the extent of fiduciary duties. I do not recite what can be read in those cases.

4 The accused’s submission was entirely dependent upon the proposition that the offence created by s 232(2) is equivalent to, and therefore limited to, breach of fiduciary duty. Such equivalence and limitation is not specified in the terms of the provision which reads:

“An officer of a corporation shall at all times act honestly in the exercise of his or her powers and the discharge of the duties of his or her office.”

5 The definition of officer contained in s 232(1) includes persons who would not in the ordinary course of things and by the nature of their offices come to owe fiduciary duties by this provision but they would be bound to act honestly. I see no reason to read down the scope of s 232(2) to apply only to those whose duties are fiduciary in nature.

6 Further, I am in agreement with the understanding expressed by Howie J of the judgment in Marchesi v Barnes (1970) VR 434 and the reservations about what could be thought to flow from the reasons of Allen J in Corporate Affairs Commission v Papoulis (1990) 20 NSWLR 503.

7 In short, a charge of dishonesty by an officer punishable pursuant to s 232(2) does not comprehend as an essential element either the acquisition of profit from position by the alleged offender or failing to avoid a demonstrated conflict of interest.

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