Rich v The Queen

[1998] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A46 of 1997

B e t w e e n -

REGINALD JOHN RICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 14 AUGUST 1998, AT 10.41 AM

Copyright in the High Court of Australia

MRS M.E. SHAW, QC:   May it please your Honours, I appear with my learned friend, MR C.J. KOURAKIS, QC, for the applicant.  (instructed by Donal Craig & Associates)

MR P.R. BREBNER:   If the Court pleases, I appear with my learned friend, MS J.M. WOITHE, for the respondent.  (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

GUMMOW J:   Yes, Mrs Shaw.

MRS SHAW:   Your Honours, the important question raised by this application is whether accessorial liability depends on proof of the actual knowledge of the facts and circumstances that would render the proposed conduct of the principle of criminal offence or whether it is sufficient that the accessory advert merely to the possible existence of those facts and circumstances.

HAYNE J:   How does that question arise in light of the supplementary direction and earlier direction given by the judge, particularly at 149 where the direction is all in terms of “did he know”?

MRS SHAW:   In this way, your Honours:  the Crown conceded at the appeal, and its case was at trial, that their evidence could never get any higher than he might possibly have known of the offending, so when we came to - - -

HAYNE J:   That might be what the Crown put but the jury were told to inquire did he know; the jury brought back a verdict.

MRS SHAW:   Your Honours, two matters out of that:  first of all, in relation to the verdict, the explanation for the verdict, we say, is plain because of the misdirections on the redirection that occurred as to the basis upon which the jury could infer knowledge.  In other words, during the course of his summing up the learned judge had put to the jury that the inference of knowledge was to be based on how they viewed the payments out of the account and his Honour, at various stages, said to the jury, “There’s nothing to indicate in any way that this wasn’t a legitimate payment”, but after the jury had been out for 24 hours the effect of the redirection was to tell the jury, using count 20 as an example, that the payment out or the Burville payment, could not be regarded as legitimate in any relevant sense.  So, it effectively cut completely across the earlier directions and the only basis upon which the jury could infer knowledge, and that is the reason for the other grounds of appeal.

Your Honours, the more important issue that arises from the point of view of this special leave application is that because the Crown case, it was accepted, could never rise above he might have known, when the Court of Criminal Appeal came to consider whether the evidence did, indeed, make a case to answer and, more importantly, whether or not the verdicts were safe, it had to apply the correct test in order to determine whether or not the evidence was sufficient and the court decided that the verdicts were not unsafe, applying this lesser test.  We say that if the court had applied the correct test, that is of knowledge, then this man would have been entitled to verdicts of acquittal.

Can I take Your Honours to his Honour Justice Cox’s judgment on this issue and, in particular, his holding as to the - it is at page 198 of the application book as to the relevant law.  I should point out that the Crown accepted that it had no case on joint enterprise and it had no case dependent on any system.  So, it was purely dependent upon proving, in relation to the individual counts, this aspect of knowledge.  His Honour, at page 198, dealt with the submission that Giorgianni applied and that knowledge was required to be proved at about line 35.  His Honour held, at line 40:

It is enough at common law if the accessory before the fact foresees the commission of the crime as a possible event. 

In particular, he goes on to say at line 15:

The principles upon which the criminal liability of an accessory before the fact is based in this respect are not confined to that category.  The same realization of the mere possibility of the principal offender committing the crime suffices for the doctrine of common purpose as well.

In other words, his Honour says that the common law is that there is no difference between a case where there is common purpose and the case of an accessory as to the state of mind or knowledge that is required to be proved.  He says that Giorgianni v The Queen does not have any application to this question.

Your Honours, his Honour Justice Bleby - - -

HAYNE J:   Just before you go to that, where did the trial judge, in his directions to the jury, give effect to the principles discussed by Justice Cox at 198 to 199?

MRS SHAW:   The trial judge gave directions which were legally in line with Giorgianni but the difficulty arose in the way in which his Honour applied those directions to the facts in the case.  So, although in - - -

GUMMOW J:   Well, he started off at page 63, about line 17, or earlier than that actually.  At the bottom of 62, really.

MRS SHAW:   Yes.  Your Honours, there is no issue taken with the legal directions that his Honour gave.  The difficulty arose with the way in which the jury could act upon them, and in the application of the legal directions, as I said, your Honours, the only basis upon which there was an inference of knowledge was on the basis in respect of which there was a misdirection.  So, even though this man at trial may have received correct legal directions, the application to the facts was completely erroneous.  Indeed, an application which, in the end, in particular in the redirection - I can take your Honours to that - at page 149, the supplementary directions from the bottom of the page, his Honour has correctly set out the legal directions but then at paragraph 2, where he instructs the jury how to apply them, he says:

I will apply the above direction to count 20 for the purpose of amplification, given your second question.  The cheques drawn during the relevant period to pay for Burville’s investments were cheques drawn for purposes other than Morris’ purposes.  So the cheques drawn to pay for Burville’s investments were not legitimate payments in any relevant sense.  The question whether Rich signed the cheques with the requisite state of mind is, of course, the question with which part 1 of these supplementary directions is concerned.

Now, the difficulty about that direction, your Honours, is that if one goes back to the direction in fact he gave, in relation to count 20 at page 83, and looks at the basis upon which his Honour left the inference of knowledge to the jury, the terminology he uses is legitimacy and, in particular, what he says, at line 10, dealing with count 20:

I have mentioned the Burville investments during that period.  It is a matter for you.  Whether you could implicate Rich with the investments would be somewhat problematical, I suggest. 

Then he deals with the payments out in relation to the Burville cheque.  He refers to the payment to Carey.  We have heard no evidence as to who he is:

I think you would have to assume that he was a legitimate client of the firm.  There are payments to Phillips Henderson Ward and sundry other payments including a payment to Empire Mines -

and then he goes on to explain how:

it would be scarcely surprising that many cheques destined for Empire Mines went through the Rich & Partners trust account.  Of course, you will remember that Hutchesson’s cheques -

which were quite legitimate transactions -

were two examples of that, entirely legitimate payments into the Rich & Partners trust account for the purposes of investment in Empire Mines. 

And then he just gives a general direction.  So, that was the totality of his direction on the application of the law to the facts where he was, effectively, explaining to the jury that one looked at the legitimacy of the transactions to determine whether or not the inference of knowledge could be drawn, and he effectively explained to them that on the basis of the evidence before the court these were, as he used the term, legitimate transactions.  That method of directing the jury pertained to all of the other counts as well.

So, when his Honour redirected and effectively changed the approach he had taken to those payments, then the jury were left with only the redirection upon which to base an inference of knowledge and that redirection was, in essence, led to the jury perhaps confusing what was intended to be the basis for an inference of conversation by Hynes and the basis for an inference of knowledge.

Your Honours, of course the appeal, as I have said, was decided on the basis that it was intended to be a statement of the law generally as to what is required for accessorial liability and it is an important question, we say, as to whether or not all that is required is that the accessory foresee the commission of the crime.  Indeed, I would point out to your Honours that his Honour Justice Bleby disposed of the argument of unsafe on the same premise.  That appears at page 263 where his Honour said:

Much of Rich’s argument was based on the degree of knowledge that the Crown needed to prove in relation to each of the counts.  Once it is understood, however, that with respect to any cheque he signed Rich only needed to know that Hynes might possibly use it to commit an act of fraudulent conversion, there was sufficient evidence from which the jury could properly infer that Rich had the requisite degree of knowledge and intention in signing the cheques.

His Honour Justice Cox, in concluding that Giorgianni, in effect, had no application to this case, we say, was in error and, indeed, that Giorgianni is on all fours with this case because the issue in Giorgianni, on its facts, was accepting that the employer was going to send his driver out with the truck, did he have knowledge of the dangerous nature of the truck, that is of the relevant facts which made that driving a crime?  The Court held that knowledge was required, not mere suspicion or probabilities or recklessness.  In this case, bearing in mind that Rich is signing cheques, in the normal course of his business, knowing that they would be met or passed on to Hynes, the question was did he have knowledge of the circumstances in which those cheques were signed, at the time of signing them, that there had been an entrustment contrary and a conversion contrary to the terms of the entrustment?

So, your Honours, we say his Honour was in error in contending that Giorgianni had no application and we say that, indeed, for an accessory before the fact, at common law, that Giorgianni does correctly state the position.

HAYNE J:   Is then the question the question whether, on the facts proved at the trial, the inference that was drawn was an inference that was open, that is an inference of knowledge, whether that inference was open?

MRS SHAW:   We say it was not open; an inference of knowledge was not open.

GUMMOW J:   Really?

MRS SHAW:   Yes.  The only evidence that the crown had was that this man countersigned or signed cheques accepting that - in the lawful conduct of his business in circumstances where he had no participation in any of the bookkeeping, any of the banking or any of the accounting of the firm.  So, in that sense, it is an important question in terms of people who do go about conducting their affairs in a lawful manner in circumstances where the possibility might arise and whether, in law, that is sufficient.

Your Honours, in Giorgianniv The Queen (1984) 156 CLR 473, we say their Honours specifically discuss the question of the knowledge required to be proved for an accessory before the fact to be liable. If I can take your Honours to the judgment.

GUMMOW J:   Justice Gibbs?

MRS SHAW:   First of all, Justice Gibbs.  He identified the specific questions at page 479 as being - the second part of it:

In other words, is it necessary to prove that the person sought to be made liable as a secondary party had knowledge of all essential facts, or is it enough to prove that he should have had knowledge of those facts or that he acted recklessly not caring whether those facts existed or not?

His Honour answered the question in his judgment at page 487, the last paragraph:

My view of the law may be summed up very shortly.  No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender.  Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.

His Honour Justice Mason as he then was, at page 492, discussed, in the last sentence on the page, the meaning of the terms at common law and made it plain he was discussing the common law position and concluded, at page 495, in the second paragraph in the middle of the page:

As we have seen, knowledge of all the essential facts giving rise to the dangerous driving is necessary to constitute commission of the offence on the part of the applicant.

And he also referred to wilful blindness.

Then, in the joint judgment of their Honours Justices Wilson, Deane and Dawson, in particular at page 506, their Honours discuss whether or not it was sufficient to establish knowledge of whether:

the brakes on the vehicle were probably (or possibly) defective.

In the second paragraph, over halfway down, their Honours identified the offences at common law in which knowledge is required to be proved and say:

And we think the offences of aiding and abetting and counselling and procuring are others.  Those offences require intentional participation in a crime by lending assistance or encouragement.

Now, in the last sentence on the page, their Honours say:

It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime.

Their Honours go on to say:

Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.

We say, your Honours, that the relevance of proof of knowledge is that it is essential or fundamental to the proof of the necessary intention.  In other words, an accessory cannot be liable unless he intends to assist the principle.  In order to intend to assist, he must have the requisite knowledge.  We say this raises a point of important principle.  The judgment of this Court is inconsistent with the judgment of the Court of Appeal of Western Australia in Ward v The Queen.  Ward v The Queen is an unreported decision delivered on 14 October 1997, and I only need refer your Honours to the judgment of his Honour Justice Steytler which whom the other members of the court agreed, at page 7, looking at the bottom of the page of the print out, in the middle of the page, where his Honour takes the view that:

actual knowledge of the facts amounting to the offence in respect of which aid is being lent, as opposed merely to a suspicion -

of those facts must be proved, and in that case the directions which looked at the liability on the basis of might led to a new trial.

So, we say for that reason there is a conflict between this Court’s reasons and those in Western Australia and we say this is an appropriate vehicle because this man, if his case had been considered on the correct basis, was entitled to verdicts of acquittal.  If the Court pleases.

GUMMOW J:   Yes, thank you, Mrs Shaw. 

The Court is of the view that an appeal would not enjoy sufficient prospect of success and that, therefore, a grant of special leave is not attracted.  Accordingly, special leave will be refused.

The Court will adjourn until 10.15 am on Tuesday, 1 September 1998 at Canberra.

AT 11.01 AM THE MATTER WAS CONCLUDED