Regina v Adler

[2000] NSWCCA 152

CITATION:	Regina v Adler [2000] NSWCCA 152 revised - 10/05/2000
FILE NUMBER(S):	CCA 60283/98
HEARING DATE(S):	17-18 February 2000
JUDGMENT DATE:	8 May 2000
PARTIES :	Regina v George Adler
JUDGMENT OF:	Grove J at 1; Hidden J at 74; Greg James J at 75

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0306; 98/11/0107
LOWER COURT JUDICIAL OFFICER :	Stewart ADCJ

COUNSEL :	P. Roberts SC with M.A. Wigney (Crown) M.A.M. MacGregor QC (Applicant)
SOLICITORS:	Commonwealth DPP Jeffreys and Associates
CATCHWORDS:	Criminal Law and Procedure - Trial - Withdrawal of Legal Representatives - Continuance - Whether Trial Unfair - Indictment - Duplicity - Content of Charge to Jury - Sufficiency of Evidence on Particular Count
LEGISLATION CITED:	Crimes Act s 178BA
CASES CITED:	Adler v District Court of NSW 1990 19 NSWLR 317 Browne v Dunn 1894 6R 67 Dietrich v The Queen 1992 177 CLR 292 Doney v The Queen 1990 171 CLR 207 Edwards v The Queen 1993 178 CLR 193 Johnson v Miller 1937 59 CLR 467 R v Baraghith 1991 54 A Crim R 240 R v Ho 1988-89 39 A Crim R 145 R v Towner 1991 56 A Crim R 221 S v The Queen 1989 168 CLR 266
DECISION:	Appeal Dismissed

IN THE COURT OF
CRIMINAL APPEAL

60283/98

GROVE J
HIDDEN J
GREG JAMES J

Monday 8 May 2000

REGINA v GEORGE ADLER

JUDGMENT

1 GROVE J : The appellant was tried before Stewart A/DCJ upon an indictment containing twenty one counts, each alleging an offence contrary to s178BA of the Crimes Act which provides:

“Whosoever by any deception dishonestly obtains for himself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment ……….”

Counts 1 to 15 involved obtaining by deception from seven nominated persons, cheques either for the appellant or a company Badrum Pty Limited (Badrum), with the exception of count 5 which alleged a financial advantage as particularized therein. Counts 16 to 21 alleged obtaining cash or cheques in varying amounts from an eighth person. The appellant was found guilty on all counts and was sentenced to terms of imprisonment. The appeal challenges the convictions.

2    The hearing of the trial extended from February to May 1998. At the commencement (February 16) the appellant was represented by senior and junior counsel and a solicitor. On March 2 representation effectively ceased. The learned trial judge in due course ruled that the trial would continue and the appellant conducted his defence without appearance on his behalf by any lawyer. It will be necessary in order to deal with some grounds of appeal now raised to detail later the circumstances surrounding these events. One consequence was that the appellant made an opening address and presented oral evidence in chief in a narrative form. From them it was established that many of the factual allegations made by the Crown were not disputed.

3    The essence of the Crown case was that funds were obtained from the persons named in the various counts of the indictment (referred to as “investors”) upon representations that their money would be invested in Canadian Government bonds. Badrum was to be used as an investment vehicle. The deceptions arose out of the circumstance that the appellant neither had such bonds nor access to them.

4    The Crown evidence was necessarily voluminous. Banking records showed deposit of funds obtained from the investors into accounts maintained by Badrum and drawings following those deposits. None of the drawings was transmitted in any fashion so as to obtain, or in any way in connection with, Canadian Government bonds. The appellant did not contradict this evidence. He claimed that the investors had become unsecured lenders to Badrum and that the proposal to secure the bonds was to be fulfilled per medium of using lines of credit which had been established with a Panamanian bank. Pivotal to transaction was a man named Robert Wilson who, the appellant claimed, would telephone the appellant to inform him that he had a bond available for purchase. The appellant would instruct the Panama bank to release funds to a French bank (Hottinger) in return for appropriate documentation, including what were called interest coupons concerning the bonds. The case of the appellant was that, although the specific money taken from the investors and given to Badrum was used for purposes other than bond purchase, the use of the appellant’s credit line facility amounted to performance of the agreement with the investors. Subject to the content of a letter admitted for limited purpose in the appeal to which I will later make reference, there was no evidence of the conduct of any transaction such as hypothesized by the appellant.

5    Parts of the representation by the appellant to investors included specification of maturity dates for payment of interest due. The appellant testified however that he had no records of the acquisition of any particular bonds nor any documents of account or the like. He agreed that he had “fobbed off” investors who were seeking payment or repayment. It was the Crown case that investors had provided $1,472,865 and they had received in return $323,640.

6    By September 1993 Badrum was in liquidation. The representations to the eighth investor (counts 16 to 21) were made between 22 September and 12 November 1993. The appellant admitted that he had told the liquidator of Badrum that he was not keen to disclose the destination of the investors’ funds. He also acknowledged that he had not mentioned the existence of Wilson to that liquidator.

7    There were numerous matters of detail examined at the hearing and a number of concessions in addition to those mentioned. Perhaps one of the most significant in the trial in terms of the credibility of the appellant’s claim, was his agreement that it was only on 20 April 1998 when the trial was entering its third month that he, for the first time, told anyone that Panama (i.e. the bank there) was a location of importance to the bond transaction scheme.

8    It was the Crown contention that the inconsistencies and the incredible nature of the appellant’s evidence of the supposed existence of a credit line and Canadian Government bond transactions was fully exposed by the evidence and confirmed in his cross examination and the only conclusion to be reached was that the appellant never had available to him any such bonds and that neither he nor Badrum had traded in them or invested any money derived from the investors in them.

9    A Notice of Grounds of Appeal filed in March 1999 contained eight grounds and three further grounds were added. They were expressed as follows:

“1. His Honour erred in law in refusing to discharge the jury when counsel and solicitor for the appellant indicated that they could no longer appear for the appellant.
2. His Honour erred in law in failing to inform the accused that he had the right to object to the evidence of:
a. Mr Flynn at p709 that Mr Cambridge acted as a director as the accused ‘was not able to do so’.
b. Mr Flynn at p715 that there were no assets of Badrum recoverable by the liquidator other than an amount paid by way of a filing fee.
c. Mr Cambridge at p778 that he had paid money to the appellant to purchase Canadian government bonds and had not ‘get the money back’.
d. Mr Hattersley at p496 as to the dishonour of a cheque provided by the appellant
In that:
i. there was no issue to which the evidence related. The evidence was irrelevant. Its real vice was that it diverted the jury from the consideration of its proper task.
ii. the probative value (if any) was outweighed by the danger of unfair prejudice to the Appellant.
iii. the evidence could only be classified as tendency evidence, specifically evidence as to bad character. See s97 Evidence Act.
e. Even if the evidence had probative value (which is refuted) the evidence did not have such probative value as to pass the test imposed by s101 of the Evidence Act, namely that the probative value of the evidence had to substantially outweigh the prejudicial effect it would have on the accused.
3. His Honour erred in law in resorting to what amounted to a cross examination of the appellant at p1584 and in particular engaging in the following exchange with the appellant:
Q. No, no, is it right that Badrum’s funds were deposited in the Hottinger bank?
A. Well, that’s - I’m not sure how I can answer that your Honour.
Q. Try the truth?
A. Well, I object to that, your Honour.
Q. You can object all you like. Just do your best?45
A. Funds in a credit line are exactly the same thing. If you have an overdraft you have funds available. If you have cash in the bank, you have funds available.
4. His Honour erred in law in inviting the jury to consider matters relating to the rule in Brown v Dunne (sic) when considering the appellant’s case.
5. His Honour erred in law in directing the jury at p35su. 1/5/98:
Is Mr Starkie lying as the accused says or not? The accused really is saying, members of the jury, that these people, Starkie, Elliott, Cairns, Hattersley, were in a conspiracy together, they had had their heads together and they were prepared to do their utmost to have the accused wrongly convicted.
6. His Honour erred in law in directing the jury as to lies told by the appellant; alternatively
7. His Honour erred in law in his directions to the jury concerning lies told by the appellant.
8. His Honour erred in law in that he failed to take into account adequately or properly in the conduct of the trial that the accused was unrepresented.
9. The trial judge erred in law in failing to rule that the first 15 counts of the indictment alleging that the appellant dishonestly obtained for himself or for Badrum Pty Limited from the name individuals a valuable thing by deception were bad for duplicity and to quash these counts.
10. The trial judge erred in law in his failure to correctly and adequately direct the jury on the requirement of a finding that the obtaining was done dishonestly in respect of each count in the indictment.
11. The trial judge erred in law in failing to direct a verdict of not guilty in respect of count 10 in the indictment involving an allegation in respect of a Mr Gregory there being no evidence or insufficient evidence to permit the jury to find a verdict of guilty in respect of this count.”

10    Grounds 1, 2 and 8 are directly or indirectly connected with the lack of legal representation of the appellant for a substantial portion of the trial. It is convenient to deal first with the more limited issues raised by the other grounds of appeal.

Ground 3

11    The appellant was being cross examined when he gave the answer which attracted the intervention by the learned trial judge set out in the following extract from the transcript which elaborates the context a little more than that expressed in the ground:

“A. Yes, I would have said that Badrum’s funds are deposited in the Hottinger bank, that’s correct, not Mr Cairns’ funds.
HIS HONOUR: Q. Is that right?
A. Yes, your Honour.
Q. That Badrum’s funds are deposited in the Hottinger bank?
A. They were deposited.
Q. Is that right?
A. Yeah, they were deposited in Hottinger as well as in Panama.
Q. The funds, Badrum’s funds?
A. Badrum had secured credit lines.
Q. No, no, is it right that Badrum’s funds were deposited in the Hottinger bank?
A. Well, that’s - I’m not sure how I can answer that your Honour.
Q. Try the truth?
A. Well, I object to that, your Honour.
Q. You can object all you like. Just do your best?
A. Funds in a credit line are exactly the same thing. If you have an overdraft you have funds available. If you have cash in the bank, you have funds available.”

12    Mr Cairns was one of the investors named in the indictment. The intervention was hardly surprising, given that the appellant’s case acknowledged that the actual funds deposited into the Badrum accounts were not transmitted overseas and his case was, as I have noted above, that the existence of a line of credit and the use of it by him was tantamount to dealing with the funds in accordance with the representations made to the investors.

13    It was argued that his Honour’s remark “try the truth” would have indicated to the jury his Honour’s view that the appellant’s testimony lacked credibility. It was conceded by the Crown in argument that the choice of phrase was unfortunate. Whether that be so or not, I am unpersuaded that any miscarriage has been shown. The last answer in the above extract from the transcript shows that the appellant was articulating the case which I have mentioned namely that cash in bank, overdraft facility and available line of credit were interchangeable in the context of the transactions which the appellant claimed to have been undertaking. That was his version of the truth. No prejudice could fairly be inferred from an adjuration to tell it.

14    I would reject this ground.

Ground 4

15    The matter complained of in relation to this ground is referenced to an occurrence during the cross examination of Mr Moulds, an Australian Securities Commission investigator. The following extract of transcript is pertinent:

“ADLER: Q. During your investigation did you ask any of the investors for information relating to their personal bank accounts?
A. Yes.
Q. And were they supplied to you?
A. Yes.
Q. Did you investigate those accounts?
A. No.
Q. And did you ask any of these investors, lenders, such as Mr Cairns and Mr Hattersley for the balance sheets of their companies?
A. Not Mr Hattersley, I don’t know about Mr Cairns, he was interviewed by Mr Jackson.
Q. Are you aware as to whether Mr Hattersley had in his company the ownership of any Canadian treasury bonds?
A. No. I am not aware of that, no.
Q. And you didn’t think that was a relevant thing to investigate?
A. No.
Q. And had you investigated Mr Hattersley’s affairs and found that he had a treasury bond in his private company, what would you have asked him about that?
OBJECTION.
HIS HONOUR: Very hypothetical, and I won’t allow it.
ADLER: It may not that be hypothetical.
HIS HONOUR: Perhaps, but it is at the moment.
CROWN PROSECUTOR (BUSCOMBE) None of this was put to Mr Hattersley.
HIS HONOUR: I know it wasn’t. I won’t allow it.”

16    Earlier in the trial the leading Crown Prosecutor had mentioned an objection by her which had elicited a remark from the appellant that the purpose for which money had been obtained from a particular witness was to be challenged. She pointed out that if the appellant wished to raise a case along those lines, it had not been put to previous witnesses. The complaint was made that the rejection manifest in the above extract may well have been an attempt by the appellant to do what the prosecutor said he had not.

17    It is noted that cross examination of a number of the investors was undertaken by senior counsel before his withdrawal from the trial. It is not contested that the matter sought to be raised by the appellant had not been put to the witnesses. The argument was developed in terms of an asserted obligation of the trial judge to advise the appellant about the nature of the operation of the practice rule in Browne v Dunn 1894 6R. 67. The submissions in this regard, as was the case in respect of a number of other grounds, were presented in the context of sweeping generalisations concerning concepts of fairness to unrepresented accused. An obstacle to the attraction of intervention by the Court is the presentation of argument in a vacuum. It is not suggested that the matter sought to be investigated by the appellant was factual or relevant to any issue in the trial. There is no demonstration that the rejection of the evidence had any potential adverse effect upon the case being sought to be made by the appellant.

18    Counsel argued that the learned trial judge misapplied or misunderstood the nature of “the rule in Browne v Dunn” as applied to the circumstances of this case and, alternatively, that he was under an obligation to advise or inform the accused about the consequences which might flow from its breach. The investigation of such submissions is futile unless it is in the context of the demonstration of some disadvantage to the appellant in the conduct of his case.

19    The inability to demonstrate practical potential for adverse affect is not surprising given the specific direction by the trial judge on this topic to the jury. Counsel for the Crown at trial had submitted that the issue required attention and in the course of his charge to the jury the trial judge explained to them the nature of the rule of practice and the inherent fairness of raising matters in cross examination. He finalized his directions to the jury however in these terms:

“It may well have been, and would have been, fairer to put these things to these witnesses, but I do not take it to the position that where, because he did not ask them, he should not be believed. I do not take it to that point, and it is far less the position that because he did not put these questions, it should go to a question of his guilt or innocence. Certainly it may well have been fairer, would have been fairer if he had put them, but you cannot take it to the point, when you take it into account, that it was unfair, that that is an issue that you should take into account on the question of his guilt. You cannot do that.”

20    It was submitted that there was no call for the application of the rule in Browne v Dunn in the case. It was not applied against the appellant. The consequence of the direction was that he was left in a more favourable position than he would have been if representation had continued, in the sense that his representatives would have been expected to comply with the rules of practice. This ground should be rejected.

Ground 5

21    This ground complains of specified content in his Honour’s charge to the jury and is recited in particulars of the ground. It reads:

“Is Mr Starkie lying as the accused says or not? The accused is really saying, members of the jury, that these people Starkie, Elliott, Cairns, Craik, Hattersley were in conspiracy together, they had their heads together and they were prepared to do their utmost to have the accused wrongly convicted.”

22    In isolation, such remarks could provoke a conclusion that the jury was being invited to make a choice between the evidence of the accused and that of prosecution witnesses. It is trite law that that is never the issue for determination in a criminal trial. There is ample authority to that effect. A convenient example is R v Towner 1991 56 A Crim R 221 where it was said:

“The trial judge must deal with the opposing versions, however, in such a way that it is made clear to the jury that it is not their task to make that choice, that is to determine which of the versions it is that is the correct one and which it is that is the false one. Their task is simply to determine whether they are satisfied beyond reasonable doubt of the guilt of the accused.”

23    The particular content of the charge to the jury must be viewed in the context of the case. It was a specific issue raised by the appellant that a number of the investors had collaborated with the Australian Security Commission investigators to construct near identical statements and give false evidence against him. As will be seen from the following extract from the transcript it was the accused himself who raised the proposition of conspiracy against him. He gave this testimony:

“Q. But your explanation for why you couldn’t pay out Mr Cairns his 975 thousand dollars odd, according to letter of guarantee, on 12 March is because it was Mr Craik’s fault and he had got something confused and you had gone on, invested other moneys or some such things, is that right?
A. Yes.
Q. Oh I see. Mr Cairns, I put it to you Mr Adler, told you in no uncertain terms prior to departing for overseas that he wanted to see his investment paid out?
A. That’s absolutely untrue.
Q. Just wait until I finish: Before he would give any consideration to committing those funds and a further one cool million to another bond: What do you say about that?
A. Firstly it is absolutely untrue.
Q. I don’t suppose you can add much to ‘absolutely untrue’ can you Mr Adler?
A. Well it is absolutely untrue.
HIS HONOUR: Q. What you are really saying is that you have already said that Mr Starkie’s evidence was untrue, haven’t you?
A. In regard to the sending of money overseas, his particular money?
Q. Yes?
A. Yes sir, that’s untrue.
Q. And Mr Cairns’s evidence is untrue?
A. That’s exactly right, your Honour.
Q. Mr Craik’s evidence is untrue?
A. Well your Honour if I might, it’s a real coincidence that Elliott introduced Starkie and Cairns. Starkie introduce Hattersley, Gregory. They had a meeting in Craik’s office and suddenly all the stories are exactly the same. I mean it’s, you know, just odd, isn’t it?
CROWN PROSECUTOR: Q. I don’t know?
A. Well I don’t know either.
Q. Is this what you are saying to the jury, in a roundabout sort of way: That these investors have all got their noggins together and come into this Court to falsely attribute things to you, is that right? That is really what you are saying, isn’t it?
A. Well I’m not so sure it is the investors. But when you have a situation where these five people out of all the investors suddenly there is just five so called friends who are the main complainants in that matter, and there is nothing odd about that of course. Suddenly, according to the Australian Securities Commission, do their statements all around the same time, over eight and nine and twelve drafts, all of which are destroyed by the ASC and all we have is that final last statement. Well with due respect, you can shake your head, but you weren’t there.”

24    The reason for this matter being raised then is that it was canvassed by the appellant and whether the extracted part of the charge to the jury involved an invitation to misapply principle needs to be gauged in the context of the whole of his Honour’s remarks on this subject. The context of the extract particularized in the ground is as follows:

“The accused, in evidence, said that basically what Mr Starkie said in evidence about the cheques, the amounts and the times is correct. He claims, of course, that what Mr Starkie said about what the accused told him is, he used his words, ‘a pack of lies’. The accused, himself, says that he lied to Mr Starkie about the repayments. These are matters which you will undoubtedly take into account when you are coming to an assessment of whether the Crown has proven these charges beyond reasonable doubt.
This follows a lengthy and exhaustive, perhaps exhausting even, cross examination of Mr Starkie, it traverses virtually everything he said in examination in chief. Is Mr Starkie lying as the accused says or not? The accused really is saying, members of the jury, that these people, Starkie, Elliott, Cairns, Craik, Hattersley, were in a conspiracy together, they had had their heads together and they were prepared to do their utmost to have the accused wrongly convicted. That is what he said to you or words to that effect. I do not pretend that they are the exact words. He also put to you that not only are those five doing those things but the attack on them goes further in that he alleges that they not only conspired with each other but also with the investigators of the ASC.
It is a matter for you whether you think that it is a credible suggestion whether those people did these things as alleged for there can be no mistake that that is what the accused is alleging. It is completely and utterly a matter for you, I have no opinion on the matter. I remind you yet again that it is for the Crown to prove its case beyond reasonable doubt.”

25    Although, as I have said, the particularized passage may be construed as contrary to principle when viewed in isolation; when seen in its proper light, it can be observed that his Honour made it clear that the jury was not being invited to undertake a determination of whether it was the appellant or the Crown witnesses who were lying in order to make its determination.

26    This ground should be rejected.

Grounds 6 and 7

27    It is convenient to deal with these grounds together. It was submitted on behalf of the appellant that a direction on lies was neither necessary nor appropriate in the circumstances of this case.

28    That proposition cannot be sustained. At the very beginning of the case the Crown opened that it alleged that the accused was lying when he said that he had or had available to him particular securities and indeed this was the essence of the allegation of deception. The Crown opened further however, and adverted to its intention to prove the telling of lies before, at the time of and after receiving money from the investors.

29    It has been noted that the appellant acknowledged that he had told lies to some investors to “fob them off” when they were seeking repayment. It thus became not only important but obligatory for the learned trial judge to give the jury some assistance as to the use that they might make of lies told by the appellant. It was necessary that there be drawn to the attention of the jury, the need to differentiate. On the one hand it was the Crown case that the appellant had lied to investors in order to obtain funds from them; proof of such lies being evidence directed towards proving an element of the charges, namely that the appellant had dishonestly engaged in deception. If the case were limited to that, then the appellant’s submission that a direction was neither necessary nor appropriate would be correct: Edwards v The Queen 1993 178 CLR 193. There were however other lies which were capable of being found by the jury and it was necessary for his Honour to tell the jury in what way they might approach a finding that the appellant had lied when investors were seeking explanation for delay in payment of interest or repayment of investment. Such lies were not within the ambit of the ingredients of the offences charged themselves. His Honour dealt with such matters in some detail and at some length. He drew the necessary distinction. He cautioned them about the necessity for materiality and he summarized the case being advanced by the appellant that the lies which he conceded telling were not capable of affording any causal nexus with the payment of money by the investors and his argument that the true reason for their action was reliance upon others.

30    Contrary to the submission that the directions were confusing and inappropriate, I would accept the Crown submission that they were clear and comprehensible. They did not involve error.

These grounds are not made out.

Ground 9

31    This ground relates to form. No objection was taken on behalf of the appellant either when legally represented or later, after the withdrawal of the representatives. The Crown opposes the grant of leave to advance this ground. The circumstance that the ground is raised for the first time on appeal is not inevitably fatal to it. If the point is good, then the judgments of conviction are flawed and I would not regard the refusal of leave as an option available to deny the appellant relief.

32    Counsel for the appellant recited in his written submissions the recapitulation of principle stated by the editors of Archbold: “No one count of the indictment should charge the defendant with having committed two or more separate offences”.

33    I do not dissent from that statement of principle and it is amply authorized in Australian cases, for example: Johnson v Miller 1937 59 CLR 467; S v The Queen 1989 168 CLR 266.

34    However the submissions did not identify the alleged duplicity, whether patent or latent. As it is alleged that all counts were bad it will suffice to exemplify one of them. The first count read:

“The Director of Public Prosecutions for the State of New South Wales, who prosecutes in this behalf for Her Majesty, by James John Jolliffe, a person authorised by order in writing to sign indictments for and on behalf of the said Director, charges in the District Court of New South Wales in its criminal jurisdiction at Sydney on 16th February 1998 that
George Adler
1. On 2 December 1992 at Sydney in the State of New South Wales dishonestly obtained from Peter Elliott for himself or for Badrum Pty Ltd a valuable thing, namely a bank cheque dated 27 November 1992 in the amount of $113,365.26 drawn in favour of Peter Elliott and endorsed at the accused’s request in favour of BDO Nelson Parkhill Trust Account, by deception, namely by falsely representing to Peter Elliott that he had a Canadian Government Bonds issue to fill, that it was a secure investment and that it would be repaid on 29 January 1993 together with interest in the sum of $26,000, at a time when he neither had nor had available to him an issue of Canadian Government Bonds.”

35    The implication of the submissions on behalf of the appellant was that the appearance of the disjunctive permitted a construction of the terms of the count specifying separate and distinct offences. In my opinion such construction is not available. The offence is the obtaining dishonestly by deception of an amount of money (or thing of value or financial advantage) and, given the terms of the statute, they do not become multiple offences to obtain such for himself or another person.

36    I would not sustain this ground.

Ground 10

37    It was recognized by senior counsel appearing for the appellant in the appeal that the pursuit of this ground would involve departure by this Court from the authority of the High Court in Peters v The Queen 1998 192 CLR 493. In the circumstances only a formal submission was made in terms of the ground and it is unnecessary to explore the matter.

Ground 11

38    It was put in written submissions that the appellant, whilst unrepresented, did not seek a directed verdict upon count 10 in the indictment but this was incorrect and an interlocutory judgment by the learned trial judge is among the papers. In any event I would not see absence of application as a bar to upholding this ground if it was demonstrated that there was insufficient evidence fit for the jury to consider on the question of the appellant's possible guilt. It is unnecessary to explore whether, as submitted, the judge was under an obligation to remove that count from the jury. The question is whether there was sufficient evidence so to leave it.

39    In summary the submission of the appellant was that the evidence was incapable of supporting the allegation that the investor (Mr Gregory) placed funds through the appellant with Badrum as a result of dishonest deception by the appellant. It is contended that the evidence shows that he acted on the advice of another. Some of Mr Gregory’s evidence was elicited in cross examination by senior counsel then appearing for the appellant. It included:

“Q. As I understand it, rather than you being persuaded by Mr Adler, the position is that because you respected some of the people that were investing with them you relied on them?
A. Yes.
Q. It was because of their reputation and their business acumen of whatever description you want, streetwiseness, that you went into it?
A. Yes.
Q. Can I ask you this: If they had not gone into it would you have done so?
A. No.
Q. Is that the reason why in effect you took what colloquially describe as the ostrich approach, put your head in the sand?
A. No I was half happy to invest on the basis that other people I respected were prepared to invest.”

40    In re-examination the following further answers were elicited by counsel for the Crown:

“Q. In answer to my learned friend on more than one occasion you indicated you relied on the fact other people you knew had invested in the scheme, correct?
A. Other persons? It was really Mr Starkie was the only gentleman I knew.
Q. To what extent do you rely on the fact Mr Starkie decided to invest?
A. 100 percent.”

41    Those answers need to be considered in the light of the whole of the evidence of the witness including the initial enquiry by the appellant whether Mr Gregory was interested in investing in a Canadian bond syndicate; the representations about the broker in Missouri; the request for a form of guarantee and the production of a letter by the appellant in response and the explanation of how the bond was said to work.

42    In his judgment on the application for directed verdict delivered on 15 April 1998 the learned trial judge acknowledged the force in the applicant’s submission but correctly recognized that the issue was whether there was sufficient evidence upon which the jury could convict: Doney v The Queen 1990 171 CLR 207. Particularly in relation to the last evidence above extracted, his Honour held that it was open to conclude that the meaning was that the witness was relying upon Mr Starkie’s probity, business acumen and the like and was not qualifying his earlier evidence that he had been persuaded by the appellant to draw money in favour of Badrum. There needed to be established a causal connection between the deception by the appellant (of which there was evidence) and the obtaining of the money. R v Ho & Anor 1988-89 39 A Crim R 145. His Honour did not err in leaving the count for deliberation upon by the jury.

Grounds 1, 2 and 8

43    These grounds relate to the continuance of the trial after the legal representatives of the appellant had withdrawn. I interpolate that attention was drawn to District Court Criminal Procedure Rule 5 relating to leave to withdraw and the apparent absence of reference to formal compliance with it. It is abundantly clear that the trial judge impliedly granted any necessary leave and I do not regard any non-compliance as germane to the central issue of whether the continuance of the trial in the circumstances should have been seen to be, or was, unfair.

44    I should trace some events. On 2 March 1998 his Honour was asked to keep the jury waiting to enable some discussion between counsel and for instructions to be taken. After some time counsel returned to Court, and in the absence of the jury, senior counsel indicated that a matter of great concern had arisen and that he could not continue to act for the appellant until he received some firm instructions from his solicitor. His Honour commented that this was very cryptic but that it had to be so. The matter was adjourned until the following day.

45    On the next morning senior counsel told his Honour that neither he nor the solicitor instructing him could continue to appear for the appellant. Junior counsel substantially took the same course. Senior counsel expressed a preference not to detail the reasons for his action and his Honour did not press the matter. On the previous day it had been said that the perceived problem had nothing to do with funding or the like. Senior counsel acknowledged that the Court, the Crown and the appellant would be placed in difficult positions but he stated that he was fortified in his view in the light of the appellant’s previous occupation and understanding of “certain rules”. The appellant was formerly a solicitor.

46    There followed some discussion about possible arrangements for alternative representation. Later the appellant told his Honour that he had made approaches to several solicitors. Given description of the issues one particular solicitor, experienced in the appropriate area of practice, estimated necessary preparation time in terms of weeks.

47    The appellant said that he wished to continue to defend the matter but was not capable of doing it (in the sense of representing himself) and added:

“There is just one thing I would like to explain if I may and that is while I accept responsibility for something that occurred which is the reason why (senior counsel) can no longer act, this was not a deliberate act on my part or a secretive receiptive (sic) action. It was circumstances that were outside my control.”

48    In further exchange, he stated that he was not experienced in criminal law and had never practised in the field. This was not challenged although this was not the appellant’s first practical encounter with it, as can be gleaned from Adler v District Court of New South Wales 1990 19 NSWLR 317.

49    Later on 3 March, his Honour permitted the jury to separate. As a result of what was said to the jury the appellant enquired about being granted an adjournment without the trial being aborted.

50    On 4 March the learned trial judge ruled that the matter was to proceed despite the absence of representation for the appellant. The hearing, however, was not resumed until 12 March. In the meantime bail was granted to the appellant to enable him to attend to matters in connection with preparation of his defence.

51    His Honour approached the issues in express application of the principle that a trial of the nature then underway should not proceed with the accused unrepresented except in exceptional circumstances. The test was correct and in conformity with Dietrich v The Queen 1992 177 CLR 292. Like a decision to adjourn or to grant a stay, the decision to proceed is made in the exercise of discretion and that exercise is invulnerable on appeal unless there is error disclosed by demonstration that the judge has acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts or does not take into account some material consideration: House v The King 1936 55 CLR 499.

52    So far as the Court has been made aware, the event or circumstance which led to the withdrawal of the lawyers remains known only to those involved. It was complained that his Honour ought not to have made the relevant ruling in the absence of that knowledge, but confidentiality derived from legal professional privilege and the power of waiver reposed with the appellant himself. He did not choose to exercise it.

53    In his reasons his Honour observed:

“(Senior Counsel) is an experienced senior counsel particularly in criminal matters, I would venture to opine. For him to say that his view as to the rightness, and the other lawyer’s decision to withdraw being fortified because of the accused’s previous occupation and understanding of the Rules, indicates to me that (senior counsel) at least is of the view that the accused would not be disadvantaged as some may be by the fact that his representatives had decided to take the action that they have.”

54    It was argued that his Honour was in effect adopting the view of counsel (as to reduced disadvantage) rather than assessing the matter for himself. Read as a whole, the interlocutory judgment shows that his Honour did not do this. On fair construction, he was saying that he shared the fortification apparently experienced by the other lawyers.

55    The essential issue on appeal is whether, viewed in the light of the principles abovementioned, discretion has miscarried. His Honour found that this was an exceptional case. He referred to a number of matters and it is plain that he based his final conclusion upon the combined effect of them. If the jury were to be discharged, there would be considerable delay in commencing a new trial. It was conceded by the appellant that, if that were to happen he would be unlikely to gain release on bail. Although the detail was unrevealed, the appellant also conceded that it was his fault that his then current representatives could no longer act for him, subject to the rider that his conduct was not deliberate. His Honour found that the appellant was a person of considerable attainment and intelligence and experienced both legally and commercially. He observed that, up until then, the appellant had been active in instructing counsel, passing notes to them and he inferred that counsel were asking questions on the appellant’s direct instructions. It was argued that his Honour could not know whether the contents of any such note were useful or even relevant. That is so, but it was not disputed that any investment scheme (to use a neutral expression) was devised and put into practice by the appellant and it was a fair inference that he would have to be the source of instruction about matters relating to his scheme and also any congress which he had with the witnesses who were being questioned by his counsel. His Honour observed for himself that the appellant was astute and capable of putting cogent argument on his own behalf, witness the argument on the very issue of whether the trial should proceed. Most of the investors had been called and cross examined by counsel before the withdrawal. In essence there was a pattern to the questioning of these investors and his Honour found that there was no one who, in his estimation, the appellant could not “handle”.

56    None of the foregoing was extraneous or irrelevant. No mistake of fact has been demonstrated.

57    Attention was drawn to an exchange recorded in the transcript of 24 March when the appellant was seeking an adjournment to prepare the (cross) examination of a particular witness. The appellant pointed out that he had not asked for extra time in respect of the first four witnesses (called since the departure of his lawyers) because he was prepared and felt competent and ready. This was said, of course, in the absence of the jury but it caused his Honour to ask whether the appellant was saying that he did not want the trial aborted and the appellant replied that he had not changed his view about that. This response might be understood as meaning that he adhered to the position noted in the interlocutory judgment of 4 March that he was adamant that he did not wish the trial to proceed and that he felt not competent to conduct his defence. However his Honour, perhaps understandably confused as to what position the appellant was adopting, asked:

“I want to be perfectly clear at this point, you are saying that you want to go on unrepresented”.

The appellant replied:

“I do, your Honour. I have never said differently.”

58    I do not consider that the words last used should be given great weight. There was clearly confusion from time to time. However, the Court is not only in a position to examine the correctness of his Honour’s finding on 4 March that continuance would not lead to a trial which was unfair but to examine whether in the event it was so unfair.

59    There is a discrete post trial matter which requires attention. The copy letter marked Exhibit A in the appeal is on the letterhead of an organization giving an address in the Republic of Panama. It is dated 8 April 1998 which is well within the span of trial and, if the date is accurate, it had the capacity to be despatched, received and produced at it. The content of the letter is as follows:

“Mr George Adler

C/- 262 Castlereagh Street
SIDNEY NSW 2000

Dear Sir:


We refer to previous correspondence and wish to confirm that this company has establish of a credit line in which you shared access in providing guarantees to various Canadian banks in connection with the trading of Canadian Government Treasury Bonds over various years, but more particularly between December 1992 and December 1993.
We are able to confirm your participation in the use of this line of credit during the above period and for the above purpose and we can confirm that your participation exceeded the sum of $2 million and that such participation was in varying amounts.
We are able to confirm that in particular, the credit line facility was extended at your request to various banks in France, Switzerland and Canada.
We confirm that all your requests were made by telephone communication and that the activation of the credit line was made directly at your request.
We further confirm that at no time has any Australian authority contacted us concerning any transactions you may have conducted with our institution. We do confirm that you were the only person in contact with us concerning these transactions.
Unfortunately, our records are no longer complete and we are unable to assist you with documentation concerning the above.
If we can be of any further assistance, please do not hesitate to contact us.
Yours faithfully,
ANIBAL ILLUECA HERRANDO

Assistant Management.”

60    It can readily be perceived that the text of the letter appears supportive of at least part of the contention of the appellant concerning the existence of and the use of a line of credit. However, the letter itself could not simply have been tendered at the trial. It was acknowledged by senior counsel appearing in the appeal that the existence of this letter had been known to the appellant’s present advisers since August 1999. Nothing is sought to be put before the Court on this issue apart from the letter itself. There is no identification of the author of the letter beyond the subscription within it. There is no material gathered to authenticate it. There is nothing put before the Court to suggest that efforts have even been in train to either establish its genuineness or the integrity of any of its content. As at trial, the letter and its content was not admissible simply by tender. The Court received it on the limited basis of being able to look at its content for the purpose of hearing argument. Nothing else is put before the Court. On the bare face of it, there is no warrant for the Court acting upon it and I would reject the tender and the invitation to act upon the content as if it provided some evidence of fact.

61    Argument in support of these grounds included reference to an assortment of incidents and incidentals of the trial. It was noted that the transcript shows that when senior counsel commenced to respond to enquiry about what had happened during the adjournment the appellant had not been returned to the courtroom. His arrival was noted in the course of counsel’s response. It was said that his Honour should have had the unheard remarks repeated. The artificiality of this complaint is demonstrated by the absence of any attempt to relate it to any identified disadvantage to the appellant. The submission overlooks that the appellant was in due course supplied with a transcript and it is obvious that he was attending to its content. He did not at any time himself complain that the matter now sought to be canvassed was of any significance.

62    It was asserted that exchange between the trial judge and counsel determined adversely to the appellant, at least by innuendo, that the appellant might have admitted his guilt to his then counsel. It is not to any point whether a trial judge infers, is told, suspects, believes or is convinced of the guilt of an accused provided that situation is not allowed to contaminate the deliberations of the jury upon proof of guilt. Discussion of possible change of plea in the absence of the jury is irrelevant to any present issue.

63    The absence of specification of exactly why the lawyers were withdrawing has been noted above. It was obvious that his Honour therefore could not apprise the jury of the reason. It was important that he guard against the risk that the jury might infer that the withdrawal was a signal that the appellant was or might be guilty. This was done and I detect no error in the way that this issue was dealt with.

64    In the interlocutory judgment of 4 March, his Honour had said:

“Length should not be confused with difficulty and complexity. Although it is true to say that these counts involve some complexity. When boiled down the counts really are basically straightforward.”

65    From time to time in the charge to the jury references were made to the case being long and involved. Senior counsel appearing in the appeal sought to adopt these references as support for an assertion that the complexity was such that the trial of the unrepresented appellant should be categorized as having been unfair. Unfairness is, of course, the essential issue and whether the trial was unfair cannot be determined by labels such as difficult, straightforward, long, short, complex or plain.

66    Specifically in relation to ground 8, there was advanced a collection of instances alleged to manifest a failure by the trial judge to render appropriate assistance (as distinct from advising on matters of law) to the unrepresented accused then on trial.

67    As Samuels JA remarked in a different context, there are appeals of the fine tooth comb variety: R v Baraghith 1991 54 A Crim R 240. This appeal qualifies for that description especially in regard to these submissions. Nothing is to be gained by ritual repetition of the content of all the references. It suffices to record my conclusion that the trial judge did not fail to fulfil his duty to render appropriate assistance to the appellant where necessary. This was not at all a case where an uneducated, inarticulate and retiring personality was being overwhelmed by the legal process. The appellant was forceful and demonstrated an abundant capacity to advance his own interest and assertions. The amount of assistance required of his Honour must be proportioned to the need, which in the case of the appellant was not extensive.

68    I will deal however with one matter which was vigorously elaborated in oral argument. The cross examination of the appellant included the following:

“Q. This is your answer Mr Adler: ‘The line of credit was organized by Hottinger’s themselves. It could have been from one bank or a syndicate of individuals, or a series of banks’ That is what you told the Judge?
A. And that’s absolutely correct.
Q. Ooh lah lah, Mr Adler. Tell me how Panama and Panamanian bank and individuals, a syndicate of individuals are a series of banks, are the same thing?
A. Because the bank in Panama, Generale Sociale existed as a series of banks and a number of very, very wealthy people in the United States, South America and they put up credit lines on a continual basis. Not just for me or Badrum, but for major oil companies around the world. And God knows what else.
Every time you got a credit line established it sometimes comes from the bank and often comes from either the individuals who put up the security; it comes from a number of sources. It all revolves around a major institution called Generale Sociale, which is was what I told his Honour some days ago. That’s how the Panamanian credit line works.”

69    It was said that the introductory expostulation to the second question amounted to a denigration of the witness and exceeded the bounds of propriety required of a crown cross examiner. It is generally desirable that cross examination by counsel, whether appearing for the Crown or for an accused, be presented in a fair and forthright manner. But it is a far different thing to invite a court of error to intervene where there have been flourishes of language or attempts to achieve dramatic effect on the basis that this demonstrates miscarriage. Judgment on the good taste of what was said is neither appropriate nor required. The incident brings no weight into determining any issue in the appeal.

70    Particulars to ground 2 refer to matters of which it is complained that the appellant was not advised of his right to object and the vice was said to be the admission of evidence which was irrelevant, or of which the probative value was outweighed by unfair prejudice to the appellant. The complaint particularized in ground 2(a) was formally withdrawn, it being recognized that the matter was essentially raised by counsel then appearing for the appellant at trial.

71    The matters particularized in 2(b), (c) and (d) provoked comment from counsel for the Crown on the appeal that he could not understand what the problem was. I share that position. None of these matters required information or assistance from or direction by the trial judge. It was relevant for the Crown to show that the money provided by the investors was no longer included in the assets of Badrum. It was relevant to show that money had not been refunded and potentially relevant to show that the appellant had provided the cheque (although dishonoured by the bank) to rebut a possible posture of the appellant seeking to distance himself from transaction.

72    Ultimately a judgment must be made whether, on examination of the issues litigated, the nature and quality of the evidence, the contribution or the absence of assistance by the trial judge, the charge to the jury and the general conduct of the trial, it ought to be categorized as unfair. In my judgment it was not.

73    I would dismiss the appeal.

74    HIDDEN J : I agree with Grove J.

75    GREG JAMES J : I agree with Grove J.

**********