Saffron v The Director of Public Prosecutions; Saffron v The Queen

[1989] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl42 of 1989

B e t w e e n -

ABRAHAM GILBERT SAFFRON

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry

Sydney Nos Sl34 and SlSl of 1988

B e t w e e n -

ABRAHAM GILBERT SAFFRON

Applicant

and

THE QUEEN

Respondent

Saffron

Applications for special leave to

appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 AUGUST 1989, AT 10.21 AM

Copyright in the High Court of Australia

C2Tl/l/JH 1 9/8/89

MR I.M. BARKER, QC: If the Court pleases, I appear with my learned

friend, MR P. BYRNE, for the applicant.

(instructed by Lang, Gellert, Noonan and Wise)

MASON CJ:	Yes.
-MR_ P.G~ HELY. QC:	If the. Court pleases, I appear with MR N .A. COTMAN

and MR S.J. RUSHTON for the respondent. (instructed

by the Director of Public Prosecutions)

MASON CJ:  Yes, Mr Rely. Mr Barker?

MR BARKER:  May I hand to Your Honours the written submission

outline of submissions?

MASON CJ:	Thank you.
MR BARKER:	If the Court pleases, out of this we respectfully

submit the special leave questions are, what is the

real significance of the maximum sentence prescribed

by law in circumstances where the sentencing judge

is clearly of the view that the maximum is

inadequate. Secondly, we respectfully submit there

is a manifest injustice because of the failure of

the sentencing judge to observe the proportionality

principle recognized by this Court. And, thirdly,

the question is the extent to which sentencing

judges should find facts when it is not clear upon

what facts the jury convicted.

If I might briefly put the factsto Your Honours

to the extent that we need to rely upon them. The

applicant was indicted that he conspired with one

Anderson to defraud the Commonwealth between

1 January 1969 and 30 June 1981 - that is a period

of 12~ years. The Crown alleged that the

conspiracy was entered into between 1969 and 1972,

although the indictment extended it to 30 June 1981.

It was first entered into between 1969 and 1972 in

repsect of a place called the Venus Room and it

was, briefly put, a conspiracy to defraud the system with a view to concealing income and that - - -

(Continued on page 3)

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MASON CJ:	Two sets of books were kept.
MR BARKER:	Two sets of books.
MASON CJ:	An incorrect set and a correct set.
MR BARKER:	And a correct set, and the incorrect set went

to the accountants, and upon that t~-ie returns were

filed. It was said - and this was the Crown case -

that the conspiracy extended successively to embrace

other establishments, although they were not in

contemplation when the Venus Room agreement was

entered into. The case was that in December 1973

the two became interested in an establishment

called ·The Carousel, or Les Girls, and from then the

same bookkeeping system was instituted.

In september of 1975 they became interested in a

restaurant called Laramie, anJ thereafter the

false books were written up in respect of that business.

Then there was a business called Showbiz, in which
the two became interested, it seems from about March
1977, and finally, a business called La Bastille, in

August 1988. The prosecution sought to prove actual fraud by tendering tax returns for the years of the

conspiracy. The tax said to have been evaded was not

quantified at the trial and the amounts by which the

income was understated was not quantified except to

this extent, that an accountant called Mr Meade

who was called by the Crown attempted to make an

analysis of the correct books of account for part of the

period and the income understated according to this

exercise was about $J.. 6 million. '

Your Honours, there were two very live factual

issues at this trial. Firstly, was there ever an

agreement of the nature alleged in respect of any
of the businesses, and secondly, whether, if there

was such an agreement, was there one conspiracy, or

was the Crown in reality trying to prove five

conspiracies in one count, and it was left to the

jury on the basis that they could convict if

satisfied that the Crown case was substantially

proved.

(Continued on page h.)

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DEANE J: Mr Barker, is there a substantive offence of

defrauding the Commonwealth?

MR BARKER:  There was not then, there is now, Your Honour,

unless then there was the common law offence of

defrauding the revenue but there was no statutory

offence. One may presume the jury were satisfied

that the case was substantially proved but what
they conceived to be substantial proof is not known

and this gives rise to one of the problems in the

matter of sentencing.

There was a separate body of evidence and

separate considerations in respect of each of the

businesses and the circumstances under which Saffron

and Anderson came to be interested in them, much

of that being lead by the defence, the Crown

asserting that one merely had to look at the

evidence of the businesses and the transactions

to see if from them the conspiracy alleged could

be proved.

The defence - and I touch on this briefly

only in so far as it is relevant to the question

of sentence - was, in a g~neral way,

that there was no conspiracy and it was Anderson

and not Saffron who finished up with the money.

Your Honours, I do not need to ask you to

undertake the painful task of looking at any of

the transcript of evidence. We are content to

rely upon the statements of evidence as contained

in the judgment of the Court of Appeal and if I

might take the Court to that, to the judgment of

Mr Justice Hope. It is in the volume ~142 of 1989.

DAWSON J: While we are doing that, Mr Barker, the applicant

is on bail, is he?

MR BARKER:  No, Your Honour.

DAWSON J:  Has he served any part of his sentence?

MR BARKER:  Yes, he has been in custody since 28 October 1988.

(Continued on page 5)

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DAWSON J: That was after he was unsuccessful in his

appeal.

MR BARKER:	From the day the judgment was delivered, yes.
DAWSON J:	On the appeal.
MR BARKER:	On the appeal, yes, Your Honour.
DAWSON J:	I am sorry, now page?
MR BARKER:	The judgment of Mr Justice Hope commences at

page 88.

MASON CJ: Eighty-eight? 848, is it not?

MR BARKER:  I think Your Honour must be looking at the

judgment of the Court of Criminal Appeal.

MASON CJ: Is it in two different volumes?

MR BARKER: Yes~ There is one - - -

MASON CJ:	Well, again, this seems to indicate that in the
preparation of the application books in criminal cases, there is unnecessary duplication of material.
MR BARKER:	No.

What happen, Your Honour, there were two. There were points of law reserved for the Court

of Appeal and there was an appeal to the Court of

Criminal Appeal - points of law under section 70

of the JUDICIARY ACT and there were, therefore,

two judgments. Their Honours sat as the Court
of Appeal and the Court of Criminal Appeal

concurrently.so the Court of Appeal documents

are in a different volume, at this 142.

MASON CJ:  Yes, well, I have got page 88.

MR BARKER:  Yes. At that page, Your Honours will see the

indictment is recited.	At page 90, His Honour
has set out part of the Crown's opening; that is

half-way down page 90:

"The Crown's case is that between 1969 and 1981 the accused and Anderson were

jointly interested or involved together in

the conduct of a number of nightclubs, bars

and restaurants in the Kings Cross area.

The places which will be of particular importance

in the course of this trial are a bar which

was called the Venus Room and a nightclub

called the Carousel Cabaret or Les Girls.

Other places in which the accused and Anderson

were interested in were Laramie's Restaurant,

La Bastille and Jim's Showbiz. In the scale

of things these other enterprises are ~f minor

significance only and the places about which you will

hear roost are the Venus Room and the Carousel.

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MR BARKER (continuing):

The takings of these businesses were

principally in cash. The Crown case is that the

accused and Anderson agreed that not all of

the cash received from the conduct of the

businesses in which they were involved would
be declared for income tax purposes by an

entity which conducted the business. It was

part of the agreement that the books and records

of those businesses would be so kept as to

facilitate non-disclosure of the true profit

income position of the businesses in question.

Then if I might take Your Honours briefly to

page 91, at line N is the particulars of the

indictment, that is the agreement was entered into

between 1969 and 1972. I really just invite

Your Honours' attention to that part of the

particulars. On page 93, paragraph 16 of the

particulars is set out:

From or about the dates upon which the accused

and Anderson became interested in the conduct

of those enterprises other than the 'Venus

Room' which are referred to in paragraph 2

above, the system referred to in paragraph 10

was continued in respect of those enterprises -

It was concede4 during the hearing of the appeal

by the Crown, that the conspiracy was in fact entered

into between 1969 and 1972 and that is at the top of

page 94.

DAWSON J: And the Crown's case was that it was first entered

into in relation to the Venus Room?

MR BARKER: Yes, Your Honour.

BRENNAN J:  Was that the only business that they had at the

time?

MR BARKER:	Yes.
DAWSON J:	So that the other businesses would be merely overt

acts pointing to the same agreement, if they were

anything.

MR BARKER: That is the way the Crown put it.

DAWSON J: Yes.

(Continued on page 7)

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MR BARKER:  The problem was this: that an issue before the jury

was as. to whether what was being proved, really, if

there was any agreement, was one agreement or five

agreements.

DAWSON J:  I do not see that on that analysis. There was

one agreement entered into in relation to the Venus

Room, if there was an agreement at all. The question

was whether what was done subsequently in relation

to other businesses proved that agreement.

MR BARKER:  A view of the evidence was that it was limited

to the Venus Room but the Crown sought to prove -

DAWSON J: If that was so the overt acts simply would not

prove what the Crown said they were put forward

to prove.

MR BARKER:	The Crown sought to prove another nine years transactions and that is the way it was eventually
left to the jury and that is the way the Court
of Appeal treated it. Their Honours in the Court
of Appeal said, "Well, if the jury were satisfied
as to the Venus Room and the Carousel, they were
entitled to convict. If they were not satisfied
as to both of those they were not entitled to convict because they were in a quantum sense the substantial
part of the Crown  proof." One of the points
of this application is that - - -
DAWSON J:	But there is a tendency to confuse the making

of the agreement which is the conspiracy and the
execution of the agreement which is not the

conspiracy but might go to prove the conspiracy.

MR BARKER:  Yes, I understand that, Your Honour, but where

there is an issue about whether there was an

agreement entered into before 1972 and where there

are a number of issues about whether there were

different agreements entered into, successively - - -

DAWSON J: If there were different agreements entered into

successively they did nothing to prove the first

conspiracy, that is all.

MR BARKER:  I understand what Your Honour puts but the Crown

said; "We are entitled to look at the period, 1969

to 1981, and say whether any of the agreements or transactions within that period are capable

of amounting to proof of the conspiracy charged.

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Saffron

MR BARKER (continuing): The problem is that when it came to

the matter of sentencing it was not known whether
the jury accepted that Saffron was a particifant

in the profits of all the businesses or only part of

them and, if so, which part.

DAWSON J: 

So that, it really was whether in the execution

of the agreement the activities were confined to
the Venus Room or to, in addition, one or other
of these businesses?

MR BARKER: 

Yes, Your Honou~ and one of the complaints we make,

with respect, is that both His Honour And the learned

judges-in the.Court of Appeal and the Court of Criminal Appeal who

dealt with sentence took the view of the facts most

adverse to the applicant without making themselves

any findings of fact as to what was the quantum

of the tax evaded in the conspiracy; what were the
businesses in respect of which the fraudulent

system was instituted. And, one of our submissions,

therefore, is that as Their Honours did not

themselves find any facts but in the Court of

Criminal Appeal simply assumed that the jury found

at least in respect of the two businesses of the

Venus Room and the Carousel, they were_not entitled to. do

that and Saffron should have been given the benefit

of the doubt in so far as it was relevant to the
length of his sentence.

To give Your Honours an idea of the possible

significance this might have had to the jury,
according to the accountant called by the Crown, the

total distribution in so far as it could be proved

by the books over the whole period was to Mr Saffron,

$245,980 and Mr Anderson $752,386 although the Crown

case was that Saffron, in fact, received a substantial

part of the amount which was shown as being credited

to Anderson. It was said that, again, in so far as

the books were capable of audit, that the income

understated in respect of the Venus Room was $809,405;

in respect of the Carousel, it was $469,661; in

respect of the Showbiz Cafe, it was $326,677 and in

respect of La Bastille, $97,564. Now, the jury may

have found that from 1972 onwards Saffron had an

interest pursuant to the conspiracy in the Venus Room;

they may have found that pursuant to the conspiracy he had an interest in other businesses but we do not know.

DEANE J:  Mr Barker, at page 90, that is page 3 of the

judgment, there is an extract in (6) from the

learned trial judge's sutmning up at the top of the

page. Now, according to that .. it says he said:

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'the Crown has to satisfy you, prove

beyond reasonable doubt, that the Crown

has substantially proved the case

presented to you, and that I read in the

opening ... the Crown case is that there

was one conspiracy that lasted throughout

all of the period and that it included

these various enterprises, and that is

the case the Crown has set out to prove -

and unless it has proved that case, you must quit.

Now, can one from that assume that the jury

found your client guilty of one conspiracy lasting
thoughout all the period and including these various
enterprises? Because, they were told unless they

did, they should acquit.

MR BARKER:  Well, the problem is with the unfortunate use

of the expression of "substantial proof".

DEANE J:  Well, he says:

the required standard, that is proof

beyond reasonable doubt.

(Continued on page 10)

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MR BARKER:	Yes.	The Court of Appeal took that to mean that

a conspiracy extending at least to the Venus Room

and the Carousel.

MASON CJ: No doubt they took that from the next quotation

from the summing up. The one that commences

half-way down the page - - -

MR BARKER:	That was the opening.
MASON CJ:	- - - where, after mentioning all the particular
enterprises, the trial judge said:

In the scale of things, these other

enterprises are of minor significance

and the basis about which you will hear

most are the Venus Room and the Carousel.

They say summing up, it really is not.

MR BARKER:	That is the Crown opening·) Your Honour.
MASON CJ:	T:he Crown's opening.
MR BARKER:	Yes. That is the Crown's opening and it is

really - you see, having regard to the amount which

the jury were entitled to accept as being proved

in respect of the Venus Room, it is really impossible

to say whether they were:satisfied that any more
than the Venus Room was involved in all this because
there was a real issue as to whether there was

a conspiracy in respect of the Carousel or any
of the businesses at all and one simply does not

know from the verdict what view they took of the

totality of the facts.

BRENNAN J: But, even if despite the passage to which

Justice Deane has drawn your attention, the verdict

of the jury is regarded as opaque - - -

MR BARKER:  As?

BRENNAN J:	As opaque.
MR BARKER:	Yes.
BRENNAN J:	What difference does that make to the point that

you are raising on the question of sentence?

MR BARKER: Well, Your Honour, the maximum prescribed by law

was three years. Saffron had no prior convictions

except one of no relevance in 1938. His Honour

said that because of the gravity of the offence

having regard to the amount involved the accused

was not entitled - or, the prisoner, at that stage -

~0 be credited with any points for his good record.

He was then a man of 68 and His Honour

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took into account the totality of the amount of

tax probably evaded; in other words, he looked

at all the transactions and said, "Well, it seems

that all these were involved; therefore, the amount

of income understated and the amount of tax evaded

was very high. Therefore, you must be sentenced
to the maximunprescribed by law". That is the

relevance of it here and that - perhaps it would

be an appropriate time to take you to the judgment

of His Honour.

BRENNAN J: That comes to, at most, a misconception by

His Honour as to the amount of money which the

revenue was defrauded of.

MR BARKER:  Yes - well, in the process, Your Honour, if that

be so, it visits upon the applicant a substantial

injustice because of the misconception.

BRENNAN J:	What is the special leave point?
MR BARKER:	The special leave point is that there is that

manifest injustice; that this man, with no record,

of 68 was sentenced to the maximum prescribed by

law and he was sentenced upon the basis of an

assumption as to a state of facts which the court

was not entitled to make.

DAWSON J: Well, it was not an unjustified assumption.

Your client's defence was the same in relation to

each of the businesses, was it not?

MR BARKER: Well, his defence was that there was no conspiracy

in respect of any of them.

DAWSON J:  Yes, and that Anderson got all the money.

MR BARKER: rhat Anderson got all the money.

DAWSON J:  And, clearly, he was disbelieved in relation to

that, at least in relation to the Venus Room.

MR BARKER: Well, even upon that assumption, Your Honour - - -

DAWSON J: Well, that must be so, must it not, having regard

to the verdict.

MR BARKER: Well, that is the probability, yes, but - - -

DAWSON J: And it was probable that he was disbelieved in

relation to all of the others, too, ~aving regard

to the verdict.

MR BARKER: Well, probabilities are not enough, with respect,

according to the authorities on this.

DAWSON J:  What, in relation to sentencing?

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Saffron

MR BARKER:  In relation to sentencing. That the judge,

himself, if he has to make findings of facts,

should do so beyond reasonable doubt and, if he

cannot do that, the prisoner should be given the

benefit of it and that is the problem here.

(Continued on page 13)

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DAWSON J:	You may be right.,. but I do not know that that

extends to---t:-he interpretation of the verdict.

MR BARKER:  It is not a question that has been, so far as we can

determine, looked at by this Court but the cases we

have referred to - I will take Your Honours to them

briefly - suggest that the trial judge, if he is

faced with an ambiguity in the jury's verdict, has

a duty to find facts for himself to the extent that

he can and to do so beyond reasonable doubt. If he

cannot do that, well then,the prisoner should be

given the benefit of the doubt. And what His Honour

did in this case - - -

DAWSON J: This is not finding facts, this is just interpreting

the verdict of the jury, is it not?

MR BARKER: Well, it amounts to the same thing, with respect,

where a matter is put to a jury in a number of

different or alternative ways.

DAWSON J: But the defence was only put in the one way and

that was rejected.

MR BARKER:  It is not quite as simple as that, with respect - - -

DAWSON J: Perhaps not.

MR BARKER: 

- - - because there were different factual issues

to be considered in respect of each of these
businesses. For example, upon the state of the

evidence, Anderson became interested in the business

of La Bastille some 18 months to two years before

Saffron did.  A jury might well have taken the view,

"How could this be said to be the subject of this

1972 conspiracy when the two  became interested

in it, pursuant to an agreement which had different

terms and conditions, the only connnon factor being

the fraudulent bookkeeping system?"

Now, I know Your Honour will say that is a

matter that would go to the questio.n of conviction,

but it is relevant here, I would submit, because

one cannot simply assume that they did take an

adverse view of Mr Saffron's defence in so far as

it extended to each of the. five businesses.

GAUDRON J:  I am wondering though, Mr Barker, if that really

is the basis on which the sentence was imposed? If

you look at page 775, that is of volume 3 of the

other one:

Whatever the true figure -

His Honour seems not to have found it necessary to

decide it -

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Saffron

it was obviously a very large sum of money.

And that, of course, if you take the figure given for the Venus Room which seems necessarily - well the Venus Room, at least, being it would seem

necessarily comprehended in the verdict; the figure

in evidence was $809,000 which is a very large sum

of money.

MR BARKER:  That, of course, is income understated and not tax

evaded.

GAUDRON J: Yes.

Numerous false returns and declarations were filed and made and the conspiracy involved a number of businesses and a number of people

Well, you would challenge the number of businesses?

MR BARKER:  Yes, Your Honour.

GAUDRON J: But, otherwise, that seems to be the basis on which

the sentence was imposed. I mean, that seems to be

the basis and other than the number of businesses

you could not really challenge it, could you?

MR BARKER: But, Your Honour, one of the factors which concern

His Honour was that it was a crime which extended

over a long period. He said - - -

GAUDRON J: Did the Venus Room not extend for a long period?

MR BARKER:  The Venus Room, I think, extended until 1978 - - -

GAUDRON J: For six years, the minimum then.

MR BARKER:  - - - but he, in his judgment at line G on that

page, clearly treated the conspiracy as extending to

1980 at least.

DEANE J: But, you do not have to go to that. If you go to

page 774, the paragraph commencing three-quarters of

the way down makes it quite clear that His Honour

sentenced on the basis that the conspiracy applied
to all of the businesses and extended over the whole

period.

(Continued on page 15)

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Saffron

MR BARKER:  Yes, Your Honour. The Court of Criminal Appeal in the sane volume

DEANE J:  Having said that to you, Mr Barker, I should say that

where you have lost me is I do not see why in the

light of that passage in the summing up His Honour

was not entitled to sentence on the basis that the

jury's verdict meant that.

MR BARKER: Well, Your Honour, the problem is the - there are

two actually, I submit. One is the elusive quality

of the expression "substantial proof", the other is

that although he was - - -

DAWSON J:	He did not speak of "substantial proof",he spoke of
proving beyond reasonable doubt substantially the
case, that is, substantially all the facts that the
Crown put forward - nothing elusive about that.

MR BARKER: Well, in the context of the reasonable doubt,

Your Honour, it had an elusive quality, I respectfully

submit. He restated the direction, at the request of

both defence and Crown, but none the less the jury

were left required to find proof beyond reasonable doubt - substantial proof beyond reasonable doubt.

DAWSON J: No. Proof beyond reasonable doubt of a substantial

case.

MR BARKER:  Your Honour, it was put in a couple of different

ways.

DAWSON J: That is the way it was finally put.

MR BARKER. Yes. Your Honour may take it that both Crown and

defence were uneasy about the cirection and it did -

MASON CJ: Well that does not assist us, we can only go on the

basis of the transcript.

MR BARKER:  No, but it lead to this position which is really,

when I opened, that one does not know upon what

facts this conviction was recorded, and His Honour

should not have assumed that it included all those

businesses and he therefore should take the view

most adverse to the accused.

DEANE J:  But if, contrary to what you say, His Honou~ having

sat through the trial and given that direction, was

entitled to take that view, one is left with the

impression that the only real criticism is that

your client should have been convicted of six

charges of conspiracy, instead of one.

MR BARKER:  No. In the context of this application, Your Honour,

what we say is that he was not entitled to assume

the facts he did assume.	He was not entitled to
assume that the jury found all those facts.	He should

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Saffron

therefore have, himself, embarked upon a fact-finding

exercise.

DEANE J: But a judge, having sat through the trials; seen the

way the case is put and the way it is fought, and having

given that direction, is not to be, as it were, assumed

not to be entitled to sentence on that basis, and all

I am trying to direct your attention to is that it

does not seem to me that there is any foundation at all

on which this Court could say His Honour was not

entitled to sentence on that basis.

HR BARKER: Well, I am probably being repetitious, but the

way we put it is that, in the absence of facts found

by him, in the absence of any sure way of knowing

what the jury found, His Honour was wrong, and the

extent to which he was wrong can be measured by his

imposing the maximum prescribed by law notwithstanding
the good record of the applicant and having regar~
therefore, to the maximum, the sentence offended

against a principle of proportionality which is

recognized by this Court.

Now, Their Honours in the Court of Criminal Appear

in dealing with the matter of sentence, if I might just

take it up briefly.

MASON CJ: Yes.

MR BARKER: ~·-It is in the -same volume -- it is called Part 3 -

as J.udge Loveday' s ·judgment.	It is at
page 848.

(Continued on page 17)

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Saffron
MR BARKER (continuing): And it is said at page 851, line I:

The dates of the conspiracy referred

to in the charge were from 1969 to 1981.
As appears from the reasons in relation to

the appeal against conviction and the reserved

questions, the jury may have found that the
conspiracy existed in respect of a shorter

period.	Again the jury may have found a
businesses to which the Crown case referred.	conspiracy which did not extend to all the for himself, applying the criminal onus of
proof, what facts the jury accepted, provided
that his view must not be inconsistent with
the verdict of the jury -

and he referred to REG V MARTIN and REG V ANDERSON.

It must be assumed that his Honour did this.

However he did not expressly identify in his

reasons what he so found. Having regard to

his Honour's summing up, the evidence and
his reasons for sentence, we will assume that

the jury found the Crown case established

other than in relation to the Laramie Restaurant,

and that it found a conspiracy that lasted

at least from and including 1972 to 1981.

Your Honours, that is a finding of grave import

to the applicant because it was on that basis that

the sentence remained at the maximum of three years

and my respectful submission is that His Honour

was not entitled to make the assumption which the
Court of Criminal Appeal said he made. Their Honours were not entitled to make an assumption as to what

the jury found and consistently with what was said

in MARTIN' s case, they should themselves have considered

the facts to determine upon what basis he should

be sentenced.

In that regard, might I take Your Honours

briefly to REG V MARTIN which is on the - - -

MASON CJ:  What are you taking us to REG V MARTIN for,

Mr Barker?

MR BARKER:	For the proposition that the sentencing judge faced with any ambiguity in the verdict should
himself find facts beyond reasonable doubt if he
is to sentence upon them. It is (1981) 2 NSWR 640,
at page 642 line A, His Honour, with Mr Justice Hope, said this:

There are many occasions when the nature of the charge and the nature of the verdict of the jury will not identify for the judge or

for anyone precisely what facts the jury has

accepted as being proved to its satisfaction

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beyond reasonable doubt. It may accept only

part of the Crown case, but nonetheless that
part which it does accept may still leave

it bound, and ceretainly entitled to find

a verdict of guilty. In those circumstances

the trial judge has to make up his mind as
to the facts upon which he should assess the

degree of culpability of the accused in order

to sentence him. The question thus arises

as to the way in which he goes about the

ascertainment of those facts.

Without the beneift of authority I would

have come to the conclusion that the trial

judge must form his own view as to what, within

the ambit of the verdict and of the charge,

he should accept for the purpose of sentencing.

It goes without saying that, as with the jury,

he must be satisfied beyond reasonable doubt,

but what he accepts on that basis is a matter
for him and not a matter for the jury,

provided that what he accepts is within the

ambit of the verdict that the jury has arrived

at.

DAWSON J:  I do not understand that passage, Mr Barker.

One question is whether something is necessarily

involved in the jury's verdict? If it is then
you must accept it, that is right, is it not?

Otherwise, what does the judge do? Does he embark

on a fact finding exercise of his own on the evidence

to come to a conclusion of beyond reasonable doubt?

MR BARKER:  That is what the authorities say, Your Honour.

DAWSON J: That is what this one says.

MR BARKER:  He referred to the earlier South Australian

authority of STEHBENS and earlier Victorian authorities.

We have cited - - -

DAWSON J:  So that what the judge here would have had to

have done - would be entitled to do was to dee ide on

the evidence that beyond reasonable doubt, as far

as he was concerned, the applicant was involved

in each of these enterprises in an effort to evade

paying tax?

(Continued on page 19)

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Saffron

MR BARKER:  Yes, Your Honour.

DAWSON J:  Well, obviously he did decide that. Why was he

not entitled to do it on this authority?

MR BARKER:  Well, he did not decide that. He simply assumed

what it was the jury had found and he was not

entitled to make that assumption. It is not

dissimilar, or it is at least analogous to a

case of, I suppose, manslaughter, murder where a

jury finds manslaughter, and could have found

manslaughter on one of a number of bases. Such a

case, for example, is LUPOI, (1984) 15 A Crim R 183.

That is a judgment of the South Australian Court of

Criminal Appeal dealing with a sentence of

manslaughter; I simply wanted to refer you to a

short passage. At page 184 in the judgment of

Mr Justice White in which the Chief Justice and
Mr Justice Millhouse concurred, at the beginning of

the third passage:

The trial judge did not, before sentencing, make any finding as to responsibility for the regular and intense quarrelling and violence which occurred between the spouses

over many years. On the appeal, the

prosecution submitted that the trial judge
should have found that the respondent had

been responsible for persistent acts of aggression towards his wife, acts which

aggravated the quality of his dangerous and

unlawful act ..... and called for a much

longer term of imprisonment. It becomes

necessary,. therefore, to examine the

evidence in some detail to see whether the

judge did so err; and if he did, what

difference that ought to make to the

length of the sentence of imprisonment.

Before proceeding to examine the

evidence of violence, it should be

mentioned that the trial judge, in surmning

up, left the possibility of a verdict of

manslaughter to the jury on three alternative
bases: first

there is provocation, then "unlawful and dangerous

act" and finally, neglicence. If I might just

take Your Honours down the page a bit at point 6:

The jury, in announcing their verdict of

manslaughter, followed the usual practice

of not stating the basis upon which they

had arrived at their verdict. The trial

judge was therefore required to arrive at

his own findings of fact and to determine

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Saffron

for himself the basis of liability for

manslaughter upon which he would pass

sentence. Such findings and

determination must, of course, be

consistent with the verdict of the jury

and must be arrived at beyond

reasonable doubt.

BRENNAN J:  How could that happen in such a situation?

If the jury found negligence and they were not asked to identify the basis on which they did it

and the judge found some more culpable basis,

he would not even know whether his finding was

inconsistent with the verdict of the jury.

MR BARKER:  That may be, Your Honour. If he was unable to

make a finding himself well then, necessarily, he

would have to sentence upon the basis of the least

culpability.

BRENNAN J:  Evidently the practice in South Australia is

not to inquire as to the foundation for the jury's

verdict of manslaughter in such a case.

MR BARKER:	Apparently certainly not to question the _ju;_ry but His Honour makes it perfectly clear that the
practice there is - and this is consistent with
MARTIN's case - for the judge to, himself, find
facts if he can beyond reasonable doubt and if
there is a reasonable doubt then that ~risoner
should have the benefit of it. Here, we say~ with
respect, that Saffron was not g,i:ven the benerit
of it and that assumptions were made which ought
not to have been made and which fomed the basis for
what was in any view a heavy sentence having regard
to the maximum then prescribed.

It has been said by this Court and I refer to

such cases as LOWE and VEEN~ VEEN (NO 2) of

course; I do not think Your Honours need go to them - that the worst case is the case which is going to attract the maximum penalty and the

maximum is reserved for the worst case. (Continued on page 21)

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BRENNAN J:  Worst category of cases.

MR BARKER: Well, I am sorry, worst category of cases. The

court has pointed out, of course, that this does

not mean one has to, by a process of imagination,
find the very worst category of cases imaginable
but when one takes account of this man's age and

character, as known to the Court, apart from the

offence, it cannot have been the worst sort of

case or in the worst category of cases, we submit
and, if one is going to judge it by, on the very

worst view of the facts, the quantum of tax evaded,

well, of course, later tax schemes reduce it to

a matter of mere trivia.

I say that simply because it is seen not to

be in the worst category of cases and, in our

submission, the sentence was appropriate neither

to the circumstances, whatever one accepts them

to have been, nor to the character antecedents

or conditions of the offender.

The fact is, Your Honours, that had Mr Saffron

been presented to the court as a man with 100

convictions for fraud, serious fraud, he could not

in respect of the head sentence have fared worse

and that itself, we submi~ is indicative of the

manifest injustice which we urge has been one of

the special leave points and a ground for reducing

the sentence. If Your Honours please.

MASON CJ:  Yes, thank you, Mr Barker. The Court need not

you, Mr Hely. The Court is of opinion that this

application for special leave raises no question

of general principle. The application for special

leave is, therefore, refused.

AT 11. 10 AM THE MATTER WAS ADJOURNED SINE DIE

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