Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 1421 of 2004
Catchwords:
Criminal law - Trial - Co-accused - Arraignment - Indictment amended to split some of the counts on the indictment - New charges as expressed in the amended indictment in essence the same as the original charges - Accused not prejudiced - Amendment to the indictment did not require rearraignment
Criminal law - Breaches of s 232(2) and s 243ZF of the Corporations Law - Whether convictions unreasonable or could not be supported having regard to the evidence - Accused were directors of public companies - Resolutions proposed at general meetings of the companies to confer a financial benefit on the directors or their associates - Allegation that the accused 'exercised a power to vote' in favour of the resolutions at the general meetings - Allegation that the accused 'allowed proxy votes to be counted' in relation to the resolutions - Whether essential that the prosecution prove beyond reasonable doubt that the power to vote was exercised on a poll called in relation to the resolutions at the general meetings and that the accused allowed the proxy votes to be counted on such polls - Whether sufficient for the prosecution to prove beyond reasonable doubt that the power to vote was exercised and the accused allowed the proxy votes to be counted informally in determining whether the resolutions had been passed
Criminal law - Trial - Judge's comments to the jury on factual issues - Judge failed to inform the jury that they were not bound by the comments and they may accept or reject them as they think fit - Whether judge's comments were materially prejudicial to the defences of the accused - Whether judge's comments occasioned a miscarriage of justice - Whether 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied
Criminal law - Trial - Application by accused to recall prosecution witness - Judge declined to order the recall of the witness - Whether judge's decision was vitiated by error or occasioned a miscarriage of justice
Criminal law - Warnings - Prosecution witness admitted backdating documents, destroying documents and engaging in misleading conduct, but asserted she acted on instructions from the accused - Witness received a 'letter of comfort' from the prosecution authorities -…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Smith v The Queen [2008] WASCA 128
Case
[2008] WASCA 128
Decision Date
CaseChat Overview and Summary
In the case of Smith v The Queen, the appellant, Brian Millwood Smith, along with co-accused Stuart Adrian Corp, were convicted by the Supreme Court of Western Australia for various offences related to the misuse of corporate power and breaches of the Corporations Law. The dispute primarily revolves around the validity of the indictment, the admissibility of certain evidence, and the sufficiency of the prosecution's case to support the convictions.
The court was required to determine several legal issues, including whether the amendment to the indictment, which split some of the counts, required the accused to be re-arraigned. Additionally, the court examined whether the convictions were unreasonable or unsupported by the evidence, particularly concerning the exercise of voting power and the counting of proxy votes at general meetings. The court also assessed the impact of the trial judge's comments to the jury on factual issues, the admissibility of post-offence conduct evidence, and the adequacy of the warning given to the jury regarding a prosecution witness's credibility.
The court concluded that the amendment to the indictment did not necessitate re-arraignment, as the new charges were essentially the same as the original ones and did not prejudice the accused. The court found that the prosecution did not have to prove beyond reasonable doubt that the power to vote was exercised on a formal poll but rather that it was exercised and the proxy votes were counted, which was sufficient to determine whether the resolutions were passed. The judge's comments on factual issues did not materially prejudice the defence or occasion a miscarriage of justice, thus the proviso in s*30(4) of the Criminal Appeals Act 2004 (WA) did not apply. The court also determined that the judge's decision not to recall a prosecution witness did not vitiate the trial or cause a miscarriage of justice. Furthermore, the warning given to the jury about the witness's credibility was deemed adequate, and the judge did not err in admitting the post-offence conduct evidence. Lastly, the unsigned and undated letter was found admissible under s*73A(1) and s*73C(2a) of the Evidence Act 1906 (WA).
The appeal was dismissed, and the convictions were upheld.