The State of Western Australia v Pollock - [2009] WASCA 96

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- POLLOCK [2009] WASCA 96

CORAM: MARTIN CJ
WHEELER JA
MILLER JA

HEARD: 24 MARCH 2009

DELIVERED : 3 JUNE 2009

FILE NO/S: CACR 162 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
KEVIN TREVOR POLLOCK
Respondent

FILE NO/S :CACR 163 of 2008

BETWEEN :KEVIN TREVOR POLLOCK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
File No  :INS 82 of 2008

Catchwords:

Criminal law - Duty of trial judge to charge jury - Duty to relate the law to the issues in the case - Whether obligation to relate the evidence and the law to the issues - Whether trial judge sufficiently related the relevant law and the evidence in the case to the law - Whether defence case sufficiently put

Legislation:

Crimes Act 1900 (NSW), s 405AA (repealed)
Criminal Code (Qld), s 620
Criminal Code (WA), s 409(1)(d), s 638 (repealed)
Criminal Procedure Act 1986 (NSW), s 161
Criminal Procedure Act 2004 (WA), s 112

Result:

CACR 163 of 2008
Appeal allowed
Convictions quashed
Retrial ordered
Sentence set aside

CACR 162 of 2008
Unnecessary to deal with appeal

Category: A

Representation:

CACR 162 of 2008

Counsel:

Appellant: Mr D G Staehli SC & Ms I M Burra-Robinson
Respondent: Mr M J McCusker QC & Mr A J Mason

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Christensen Vaughan

CACR 163 of 2008

Counsel:

Appellant: Mr M J McCusker QC & Mr A J Mason
Respondent: Mr D G Staehli SC & Ms P J Caust

Solicitors:

Appellant: Christensen Vaughan
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Amado‑Taylor v The Queen (2000) 2 Cr App Rep 189
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Connell v The Queen (No 6) (1994) 12 WAR 133
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Mohamed v The Queen [2008] NSWCCA 45
Pezzino v The State of Western Australia [2006] WASCA 131
R v AJS [2005] VSCA 288; (2005) 12 VR 563
R v Condon (1995) 83 A Crim R 335
R v Davis [1999] NSWCCA 15
R v DH [2000] NSWCCA 360
R v Lock [2001] QCA 84; [2002] 1 Qd R 512
R v Piazza (1997) 142 FLR 64
R v RNS [1999] NSWCCA 122
R v Schmahl [1965] VR 745
R v Thompson [2008] VSCA 144
R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260
R v Zorad (1990) 19 NSWLR 91
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

MARTIN CJ: I have had the considerable advantage of considering the reasons to be given by Miller JA for his conclusion that Mr Pollock's appeal against conviction should be allowed and his conviction quashed. In those reasons, Miller JA thoroughly recites the course taken at trial, the issues which arose in the course of the trial, the issues in the appeal and the authorities relevant to those issues. The thoroughness of those reasons enables me to briefly state why I too would allow the appeal and quash Mr Pollock's conviction.

The applicable legal principles

Ground 1

Miller JA has referred to all pertinent authorities dealing with the question of the extent to which the duty of a trial judge to ensure a fair trial will, in some cases, require the judge to refer to issues of fact, and the evidence relating to those issues, in his or her address to the jury. For my part, I prefer, and would respectfully adopt, the enunciation of principle provided by Wheeler JA in Pezzino v The State of Western Australia [2006] WASCA 131:
However, as to the broad proposition that in every case a Judge must include a collective resume of the evidence and a brief outline of the arguments in relation to that evidence, it must be said that this proposition does not seem to be consistent with s 112 of the Criminal Procedure Act 2004 (WA) ("the Act"). That section requires a Judge to instruct the jury on the law applicable to the case, but as to the facts provides that the Judge may make such observations about the evidence that the Judge thinks necessary in the interests of justice (replacing the former s 638 of the Criminal Code (WA) which was in broadly similar terms). I would, of course, accept that a Judge has a duty to ensure a fair trial and must refer to and explore so much of the evidence as is necessary in order to achieve that end. Section 112 is plainly not intended to detract from that duty.
It seems to me that the effect of s 112 of the Act is rather similar to that of s 161 of the Criminal Procedure Act 1986 (NSW) which provides that at the end of a criminal trial a Judge "need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary". That section permits a Judge not to summarise, rather than permitting the Judge to do so, as s 112 does, but each provision must be understood as giving a Judge a discretion which is to be exercised in the interests of ensuring a fair trial. A very useful survey of authority in New South Wales and in the High Court concerning the role of a Judge in relation to factual issues in a criminal trial generally was undertaken in the New South Wales Court of Criminal Appeal in R v DH [2000] NSWCCA 360. The relevant authorities are considered in some detail from [68] through to [79] inclusive of that decision. Their effect is then summarised at [82] through to [86] in the following terms:
'[82]Taking account of the circumstances of a trial, a judge may be entitled to form the opinion that a summary of the evidence is unnecessary. As observed by the High Court in Domican, whether the judge is bound to refer to the evidence depends on whether the jury would have sufficient knowledge and understanding of the evidence without assistance. Trials will vary considerably in their length, content and complexity. Allen J observed in Condon (adopted by Wood J in Williams) that guidance for the jury needs to focus on the critical issues.
[83]Williams referred to the short length of the trial as being a factor which would favour the appropriateness of a trial judge's decision not to summarise the facts. Wood J also referred to a single issue trial, when the summing-up follows immediately upon the defence address, as a factor relevant to the decision not to summarise the evidence.
[84]As I have said, Wood J's remarks about respecting the common sense and intelligence of the jury, as well as respecting the decision of counsel in acquiescing in the judge's decision and not seeking any further directions, are important. They are apposite to this trial which was relatively short (4 days), notwithstanding the interposition of other matters and an early adjournment on one day to allow the complainant to receive advice. Moreover, the facts were within a small compass, involving only two counts. The trial was principally a contest of credibility between the complainant and the appellant, with the focus on the complainant's credibility. This must have been patently apparent to the jury and was underlined by his Honour in the summing-up. It is difficult to see what would have been gained (for the jury) by a restatement of the factual matters already the subject of addresses by the Crown and defence.
[85]The strictures of the High Court in RPS are relevant. A judge is not bound to comment on the facts unless her or his other functions require it. In many cases, the safer course to take is to make no comment on the facts except to remind the jury of counsels' arguments. This remark by their Honours in RPS raises the question of the possible dangers which may be inherent in summarising the evidence. The trial judge here was aware of this possibility when he raised the issue with counsel. He referred to the lack of a transcript and the manner in which some witnesses gave their evidence (including the complainant) making note taking almost impossible. There was the clear risk that, in summarising the evidence, his Honour could have misled the jury.
[86]There is also the point made in Davis, another short trial with only six witnesses, that summing up on the evidence may lead to a one-sided appearance being presented to the jury.' [26] ‑ [27]
As Miller JA points out, these principles have been enunciated by the High Court (see, for example, Alford v Magee [1952] HCA 3; (1952) 85 CLR 437; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] ‑ [42]). However, the cases surveyed by Miller JA suggest that there may be differences in emphasis and in practice amongst the different jurisdictions of Australia. Those cases, supported by anecdotal evidence, suggest that, for example, it may be more common in some jurisdictions for judges to address on the facts and the evidence. As this case illustrates, the practice of judges in this state varies, as it should, because the need for and utility of an address on the facts depends very much upon the circumstances of each individual case.
Section 112 of the Criminal Procedure Act 2004 (WA), read with the observations of the High Court in RPS and of Wheeler JA in Pezzino, make it clear that trial judges in this state do not have a general duty to address on the facts in each and every case. In this state, a trial judge will be obliged to address on the facts if, and only to the extent that, it is necessary in order to ensure a fair trial. In assessing whether or not an address on the facts is appropriate in a particular case, trial judges will do well to remember the counsel provided by the High Court in RPS:
Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel. [42]

Ground 2

As Miller JA points out, the obligation of the trial judge to fairly present to the jury the case put by the accused is well established by the highest authority. In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, the High Court observed:
… the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. (561)
More recently in RPS, the High Court observed that the fundamental task of a trial judge to ensure a fair trial of the accused:
…will require the judge to put fairly before the jury the case which the accused makes. [41]

The particular circumstances of this case

In this case the trial had gone for about two weeks when counsel commenced their addresses. While the length of trial may be of some relevance to the question of whether it is necessary for the trial judge to address on the facts, it is an imperfect proxy for a consideration of the factual issues in the case, and their complexity, and of the likely capacity of a jury to comprehend those issues without assistance from the judge.
At a superficial level, the main issues in this case were relatively straightforward. In relation to counts 1 ‑ 3, the most significant issue was whether the machinery, the subject of the invoices, had ever existed in Australia. In relation to counts 8 and 13 ‑ 17, the most significant issues were whether the use of the relevant invoices had been authorised by Mr Curran, and if not, whether the prosecution had established that Mr Pollock knew that their use was not authorised.
However, expression of the main issues in this simple way is superficial, and belies the complexity of the underlying issues of fact, and the competing evidence which the jury was required to resolve in order to come to a conclusion in respect of the main issues in the case.
Counsel for the state provided the jury with the benefit of a detailed address which included very specific references to the particular factual issues which underscored the main issues in the case, and the evidentiary contest relevant to those particular factual issues. He also referred at some length to the evidence given by Mr Pollock, and the conclusions of fact which he suggested the jury should draw from that evidence.
Miller JA has provided a very thorough summary of the address given by counsel for Mr Pollock. As that summary makes clear, counsel for Mr Pollock, like counsel for the state, took the jury in considerable detail through a number of sub‑issues which he contended were relevant to their assessment of the principal issues in the case. He made detailed submissions with respect to the evidentiary contests relating to those sub‑issues. The jury were then addressed by counsel for Mr Jamie Pollock, who referred in detail to a number of the factual issues which were specifically relevant to the interests of his client.
At the completion of that process, the jury had received three detailed and intricate addresses from competent and experienced counsel. There may be cases in which the addresses of counsel on the facts will obviate the need for a judicial address covering the same ground, because they have, for example, succinctly identified all relevant issues of fact in the competing evidence relating to those issues in such a way that there can be no doubt of the jurors' comprehension of the questions they are required to resolve. However, in my view, this was not such a case. This was a case in which the breadth and complexity of the issues canvassed by counsel in the course of their addresses required the trial judge, as part of his obligation to ensure a fair trial, to provide to the jury, with his imprimatur, a succinct synthesis of the principal issues of fact which they were required to resolve, together with a succinct summary of the competing evidence bearing upon those issues. And of course the trial judge was required to do so in a way which struck the balance evenly as between prosecution and defence. I will now shortly elaborate on the reasons why I have come to that view.
As I have observed, in relation to counts 1 ‑ 3, the central issue was whether the machine the subject of those counts had ever existed in Australia. The principal evidence relied upon by the prosecution to support its contention that there had never been any such machines within Australia was the evidence of Mr Yoon (relating to the serial numbers on the invoices) to the effect that the machines bearing those serial numbers never left Korea; Mr Cardaci's evidence relating to the sale of five similar machines to companies within the Pollock group; and Mr Taylor's evidence to the effect that Volvo, an importer of Samsung equipment, had no record of selling machinery of this kind to the Pollock group.
However, there was evidence relied upon by the defence, which is conveniently summarised in the note provided to the trial judge by counsel for Mr Pollock in support of the submission that the trial judge should give further directions on the facts. That evidence included the acceptance by Mr Taylor and Mr Cardaci that machinery could have been imported into Australia without their knowledge; the evidence of Mr Noel Pollock that three machines of the same kind were required for the recycling business of the Pollock group at Hazelmere; the photograph showing a machine working without any occupational health and safety stickers, or any identification stickers; the lack of direct evidence from Mr Stevenson (who was deceased) who was the author of the relevant invoices; and the lack of evidence to the effect that Mr Pollock was personally involved in the production of those invoices.
In relation to counts 8 and 13 ‑ 17, although the principal issue was whether the invoices were authorised by Mr Curran, and if not, whether Mr Pollock knew that, the defence relied upon statements made by Mr Curran in cross‑examination which were said to leave open the possibility of authority, or at least the possibility that Mr Pollock had a belief of authority, together with the evidence which established a continuing course of dealings between Mr Pollock and Mr Curran, even after Mr Curran became aware that Mr Pollock had issued an invoice which, on the prosecution case, was issued without authority.
It should be noted that the summary of the address given by counsel for Mr Pollock provided by Miller JA reveals that my attempt at synthesis of the principal factual issues is at a level of generality which does not descend to a number of specific evidentiary issues, and arguments which were advanced by counsel for Mr Pollock in relation to those issues.

The address to the jury

It is now necessary to turn to the address given by the trial judge to the jury for the purpose of assessing whether that address discharged the obligation which I consider arose, in the particular context and circumstances of this case.

References to the prosecution case

The trial judge made a number of references to the prosecution case in the course of his address. They include the following:
The prosecution here say that the accused - I will speak generally at the moment - used fraudulent means. The fraudulent means that they used were, in a nutshell, false invoices in each case, invoices that told a lie about themselves, in order to obtain money but, more particularly, and relevantly to the charge, to cause a detriment to the bank, the detriment being the payment of the money that is specified in the hire‑purchase agreement, and that at the time that the fraudulent means were used and the detriment caused the person had an intention to defraud. (ts 1144)
…
As I say, the fraudulent means here asserted are the use of false invoices. The invoices it is not said - the invoices did not, it is said by the prosecution, portray what the true position was in respect of the machinery mentioned within it. For example, in the first three invoices, the prosecution say in relation to the Samsung front end loaders they were never, ever in Western Australia. There were no such loaders in Western Australia. No such loaders with those serial numbers and details were in Western Australia.
The Pollock group had five Samsung low loaders - front end loaders, which in fact they had received through Mr Cardaci, but these did not relevantly exist. They existed in Korea but they did not at any time relevantly exist. That's a question of fact. I'm using it simply as an illustration that what the prosecution say is that they were false invoices. With the Curran invoices, they are in a different category. There was machinery, so the prosecution say, but the Curran invoices were not authorised by Mr Curran.
Some of them came after the event when he was away and they were documents which did not tell the truth about themselves because in reality the machinery was Mr Pollock's or the Pollock group's machinery and that the Curran invoice was a device used to support the hire‑purchase agreement. That in essence is what the prosecution say. (ts 1146 ‑ 1147)
…
In considering the question of intention to defraud, that is a matter to be ascertained from the facts if it is possible, bearing in mind it can only be ascertained if you are satisfied beyond reasonable doubt that there was an intention to defraud. In relation to the accused Kevin Pollock, one of the circumstances you will consider is whether or not the State can establish that he was not authorised by Mr Curran to prepare and send off invoices and whether or not he did not believe himself to be so authorised.
Those are part of the circumstances for you to consider but bear in mind that the accused is, of course, not charged with defrauding Mr Curran but defrauding the National Australia Bank. The State's case is that he created the Curran documents and indeed Mr Pollock had no hesitation in telling you that I think in relation to counts 15, 15 and 16, yes, indeed he did. It's a question of fact for you whether the other documents were created by him. The State says that all the Curran documents, invoices, were false; they were in effect a way of getting money out of the bank without increasing the overdraft of the Pollock group, and that's really what Mr Pollock said. He knew that the bank required an invoice from a dealer. If the invoice was created by him and used with intent to defraud the bank in the way that I have said, whether Mr Curran authorised it or whether he believed that Mr Curran authorised it may not in the end matter if you were to conclude that the sole purpose of using the invoice was to satisfy the bank, even though the bank obtained title to the goods in due course. This is an observation on the facts. It's not binding on you.
You are, however, obliged to consider, in your consideration of the case, the question of not only whether he had authority from Mr Curran but whether he believed he had authority to do sp [sic], and if there was a reasonable possibility that he believed that he had authority, whether that affected the intent for which the prosecution is required to prove; that is, an intent to defraud the bank. (ts 1149 ‑ 1150)
…
There are some areas which I flagged that I will deal with and the first is circumstantial evidence. This is a case where the prosecution relies really on a combination of circumstances to prove its case. It says in effect, 'Look, if you put together what people have done, the documents, all the evidence, the only conclusion that you can draw is that of guilt of the particular accused on the particular count.' They rely on some direct evidence of course as well but where the prosecution relies on a series of circumstances which point to the guilt of the accused, circumstances such as the drawing of the cheques, the endorsement of cheques, the payment into various accounts, the nature of the invoices, the evidence which suggests that the IMAP invoices, for example, are false because there was no machines of that nature in Australia, they are asking you to draw an inference as to guilt from the surrounding circumstances. (ts 1151 ‑ 1152)
…
The prosecution case in essence is that all the invoices, for various reasons, that were presented to the bank were false. To the knowledge of each of the accused men, each intended to cause detriment to the bank in relation to the bank's lawful rights and interest. This in fact occurred because in each case the bank paid out money on a hire purchase agreement. Had it known the truth the bank would not have paid out the money, at least until they had investigated the circumstances.
The bank says - the prosecution says there were no Samsung machines in Australia, the subject of counts 1 and 3, and the Curran invoices in relation to the others were no more than a device, not really a real transaction but a device in order for the Pollock group to obtain money easily from the bank. The prosecution says that after weighing the evidence, and particularly relying on Ms Kannemeyer and Mr Curran, in all the circumstances you are able to be satisfied beyond reasonable doubt on each count. (ts 1160)

Further, following the first retirement of the jury, after receiving submissions from counsel, the trial judge brought the jury back and gave them a further direction bearing upon the prosecution case, in the following terms:
The prosecution case as closed by Mr Staehli … is this at page 960. He said:
All of the other invoices relevant to charges 4 through to 17 are those of Curran Holdings and our case against each accused in relation to those invoices is that each invoice was false in the sense that it told a lie about itself because they were not Mr Curran's invoices. In particular, they were not Mr Curran's invoices because he did not authorise, at the time that those invoices were presented to the bank, the use of his invoices in the way that they went forward and were used by the bank as part of the process of giving out hire-purchase funds. I will come back to deal with that in more detail later on but that's the essential nature of the falsity of the invoices.
That was what he said, so first of all the question of fact that you must be satisfied about - there are two relevantly to this: first, you must be satisfied that Mr Curran did not authorise the invoices, and you will recollect his evidence about that, and even if you are satisfied - the first thing: if you are satisfied - if you have a reasonable doubt whether he authorised it, well, the prosecution case is that the invoices were not authorised, so you would acquit.
If, however, you were satisfied that he did not authorise the invoices; that is, Mr Curran did not authorise the invoices, you would also have to be satisfied that in all the circumstances, Mr Pollock did not believe that he had authority to use Mr Curran's invoices in the way they were; in other words, the prosecution must satisfy you that Mr Kevin Pollock had no relevant belief in authority. (ts 1179 ‑ 1180)
On the morning of 31 October 2008 (two days later), the trial judge gave a further direction on the prosecution case, in response to a question from the jury. In that context, on the subject of fraudulent means, he directed the jury that:
In each case, the fraudulent means relied on by the State are what the State says are false invoices. It's a question of fact for you whether you are satisfied as to that. In each case, the State says the detriment caused by that the bank issued a cheque which it would not have otherwise issued then and there. It may have made inquiries. (ts 1194)
…
Fraudulent means, as I have said, is separate and distinct and additional to the requirement of an intention to defraud. The prosecution asserts that the fraudulent means were the uses of the invoices which they say are false; that is, the invoice did not portray what was the true position in respect of the machinery mentioned in it. (ts 1195)
Further, in the course of the same address, on the subject of the significance of the handwriting evidence in relation to the case against Mr Jamie Pollock, the trial judge directed in the following terms:
The evidence of Kevin Pollock I think in relation to all the Curran invoices, certainly in relation to counts 15, 16 and 17, was that I think he probably prepared them all. That is evidence which is there available for you which you would weigh up, along with everything else, but you are entitled and obliged to have regard to it when you are considering the case against Jamie Pollock. (ts 1199)

References to the defence case

The only reference to the case advanced on behalf of Mr Pollock in the address given by the trial judge is:

The defence response by Mr Kevin Pollock is that the bank always got title to the machines; in relation to the method used it was authorised by Mr Jenaway, and in particular Mr Curran approved the use of his invoices or at the least Mr Kevin Pollock believed that he was authorised; Mr Pollock knew of each transaction but there was no falsity; if the IMAP invoices counts 1 to 3 were false, which is very strongly challenged, he did not know that fact; they are IMAP invoices, after all. (ts 1161)

The brevity of that direction stands in contrast to the repeated references made by the trial judge to the prosecution case. In the context of the arguments advanced on behalf of the accused, conveniently summarised in Miller JA's reasons, it could not be said that this brief paragraph fairly put before the jury the case which Mr Pollock made. Ground 2 of the appeal must therefore be upheld. Further, to the extent that the address of the trial judge to the jury touched upon issues of fact (all of which references are set out above), it could not be concluded that they provided the jury with the succinct synthesis of the principal factual issues, and the competing evidence on those issues, which the circumstances of this case required. For that reason, ground 1 must also be upheld.

Conclusion

Both grounds 1 and 2 must be upheld.
For the reasons given by Miller JA, the proviso has no application to this case. The appeal should therefore be allowed, the convictions of the appellant should be quashed, and there should be an order for a retrial. It is therefore unnecessary to deal with the state appeal against the inadequacy of the sentence imposed upon Mr Pollock. I agree with the orders proposed by Miller JA in that regard.
WHEELER JA: I agree with the Chief Justice.
MILLER JA: The appellant in CACR 163 of 2008 appeals against his conviction on nine counts of fraud (s 409(1)(d) Criminal Code (WA)) on 31 October 2008. The appellant in CACR 162 of 2008 appeals against the sentence imposed upon the respondent (the appellant in CACR 163 of 2008), being a suspended term of imprisonment of 3 years 4 months' imprisonment on each of counts 1 to 3, to be served concurrently with eligibility for parole and suspended for a period of 2 years, and a single fine of $60,000 in respect of the convictions on counts 8, 13, 14, 15, 16 and 17.

Appeal CACR 163 of 2008 (the conviction appeal)

The appellant and his son, Jamie Pollock, were charged with numerous counts of fraud under s 409(1)(d) of the Criminal Code. The appellant was charged with nine counts and on six of those counts he was jointly charged with Jamie Pollock. They were counts 1 to 3 and 15 to 17 on the indictment. The appellant was charged alone on counts 8, 13 and 14. Jamie Pollock was charged alone with another eight counts.
The appellant and Jamie Pollock were tried before McKechnie J and a jury in the Supreme Court at Perth, between 13 and 31 October 2008. At the conclusion of the trial, the appellant was convicted on all nine counts he faced. Jamie Pollock was acquitted of eleven counts and the jury was unable to reach a verdict on three counts.
The appellant appeals against his convictions by leave granted on 13 February 2009. There are only two grounds of appeal and they are shortly stated:
1.The learned trial Judge erred in law by failing to give an adequate direction, both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case base a verdict in whole or in part.
2.The learned Judge erred in law in failing to put the defence case, adequately or at all, to the jury.

The facts

The appellant faced nine counts of having, with intent to defraud, by fraudulent means, caused a detriment to the National Australia Bank Ltd (the NAB) contrary to s 409(1)(d) of the Criminal Code. In each count, the detriment was alleged to have been a payment made by the NAB in respect of a hire‑purchase agreement entered into between the NAB and a particular company in respect of an item of heavy earthmoving equipment, a truck or a prime mover.
Counts 1, 2 and 3 charged, in identical terms, that the appellant, between 25 and 31 August 1999, with intent to defraud, by fraudulent means, caused a detriment to the NAB; namely, $405,000 paid by the NAB in respect of a hire‑purchase agreement entered into between the NAB and Westgroup Pty Ltd, contrary to s 409(1)(d) of the Criminal Code. Each of the three agreements related to a Samsung front‑end loader.
Count 8 charged that the appellant, between 22 and 26 September 2000, with intent to defraud, by fraudulent means, caused a detriment to the NAB; namely, $302,500 paid by the NAB in respect of a hire‑purchase agreement entered into between the NAB and MM Developments Pty Ltd, contrary to s 409(1)(d) of the Criminal Code. The agreement was in respect of a Caterpillar motor scraper.
Each of counts 13 and 14 charged that the appellant, between 13 and 16 February 2001, with intent to defraud, by fraudulent means, caused a detriment to the NAB; namely, $198,000 paid by the NAB in respect of a hire‑purchase agreement entered into between the NAB and All Terrain Aust Pty Ltd, contrary to s 409(1)(d) of the Criminal Code. There were two agreements entered into. Each related to two Terex dump trucks.
Count 15 charged that the appellant, between 14 and 17 May 2001, with intent to defraud, by fraudulent means caused a detriment to the NAB; namely, $478,500 paid by the NAB in respect of a hire‑purchase agreement entered into between the NAB and Westgroup Pty Ltd, contrary to s 409(1)(d) of the Criminal Code. There were, in fact, two agreements, which were in respect of a used 1991 Caterpillar 992 wheel loader/dozer and a used 1997 Komatsu PC450‑5 hydraulic excavator.
Count 16 charged that the appellant, between 4 and 7 June 2001, with intent to defraud, by fraudulent means, caused a detriment to the NAB; namely, $176,500 paid by the NAB in respect of a hire‑purchase agreement entered into between the NAB and Westgroup Pty Ltd, contrary to s 409(1)(d) of the Criminal Code. This agreement was in respect of a Kenworth prime mover.
The final count was count 17. It charged that the appellant, between 25 and 27 June 2001, with intent to defraud, by fraudulent means, caused a detriment to the NAB; namely, $434,500 paid by the NAB in respect of a hire‑purchase agreement entered into between the NAB and MM Developments Pty Ltd, contrary to s 409(1)(d) of the Criminal Code. There were, in fact, three agreements, which were in respect of a used 1998 Case 821B front‑end loader, a used 1986 Caterpillar 769C dump truck and a used 1997 Case 821B front‑end loader.
In summary, the nine counts faced by the appellant each related to a payment made by the NAB pursuant to a lease or hire‑purchase agreement entered into between it and a relevant company in respect of an item of heavy earthmoving equipment, a truck or prime mover. In each case, the agreement required that the company repay the NAB the cost of the goods, plus interest, over a period of four years.
The prosecution alleged that if the transactions had each been legitimate, the NAB would have acquired title to the goods from the third party supplier of the equipment and, provided that it had made payments as required by the agreement, the company would acquire title to the goods at the conclusion of the term of the agreement.
Each company referred to in the different counts in the indictment formed part of what was termed 'the Pollock group'. The appellant was the person within that group who made the relevant financial and business decisions in respect of each company, whether or not he held formal office within the company. He was not a signatory to the agreements with the NAB, but was a guarantor of the agreements in relation to counts 8 and 17.
The prosecution case was that, in relation to each count, a false invoice had been used in the transaction. It was also alleged that the appellant had been involved in each transaction in full knowledge of that falsity. That falsity was alleged to have been identical in relation to counts 1 to 3, and counts 8 and 13 to 17 inclusive, although the falsity alleged in respect of the two groups of invoices was different.
The prosecution alleged that, in each instance, the invoice failed to accurately reflect the true title or ownership of the goods which, by the agreement, the bank was to acquire from the supplier.

Counts 1 to 3

These counts related to what were termed 'the IMAP invoices'. All three transactions occurred on or about 31 August 1999. Each of the three invoices (which became exhibits 1062, 1063 and 1064 at trial) identified a Samsung front‑end loader by serial number and engine number. The cost of each loader was asserted to be $405,000. Three hire‑purchase transactions then occurred, with the NAB paying out a total of $1,215,000. That sum was deposited into the account of a Pollock group company. A series of cheques were then written on the account of that company, with the proceeds apparently being applied to the running costs of the Pollock group.
A key prosecution witness was Yeokwon Yoon, who was employed by Volvo Construction Equipment in Korea. He was responsible for providing technical support for machinery products sold overseas. He testified that Volvo Construction Machinery [sic Equipment] had taken over Samsung Heavy Industries. He began work with the research arm of Samsung in 1996 and was working there in 1999.
Mr Yoon gave evidence that he presently had access to the production and service records of models of earthmoving equipment made by Volvo in Korea. He had accessed the records relating to a Samsung front‑end loader model LX473, which, when sold on the international market, was redesignated SL330‑2. Mr Yoon's evidence was to the effect that three front‑end loaders which had the same serial numbers as those shown on the IMAP invoices provided to the bank had been sold in 1999 to Korean companies. They had subsequently been serviced in South Korea over the following two years. The engine numbers which had been given to these front‑end loaders were different from the engine numbers shown on the IMAP invoices presented to the NAB.
The prosecution also led evidence that the appellant had bought five similar front‑end loaders earlier in 1999. He had acquired those from a Western Australian distributor of Samsung equipment. It was operated by Filippo Primo Cardaci. Mr Cardaci's records of those purchases showed that the serial and engine numbers of the front‑end loaders matched the Samsung records.
Sean Thomas Taylor was employed by Volvo (Oceania) between October 1998 and October 2004. Volvo acquired Samsung Heavy Industry in July 1998, with the result that Samsung became a subsidiary of Volvo and was termed Volvo Construction Equipment (Korea). Mr Taylor produced Volvo records, which revealed that the Samsung front‑end loaders which bore the serial numbers the subject of the IMAP invoices had never been imported into Australia through Volvo.
Gregory Kevin Mellor, a heavy duty plant mechanic, occupied a managerial role with Goldfields Contractors (a company run by the appellant) between the period 1999 to 2001. Goldfields Contractors serviced equipment which Mr Mellor understood to be owned by the Pollock group of companies. Machinery was brought to his workshop, where it was fixed or serviced. Mr Mellor gave evidence that five Samsung front‑end loaders were worked on during the period 1999 to 2001.
From the evidence which I have related above, the prosecution alleged that the three front‑end loaders which were the subject of the IMAP invoices were never in Australia and that the invoices were therefore false.
The appellant answered the prosecution case by contending that the front‑end loaders had been imported into Australia otherwise than through Volvo (the Samsung dealer).
The appellant contended that the loaders had been acquired in a 'near new' state in Malaysia. He said that there were difficulties in obtaining machinery from Volvo. It required payment in advance, even when there was to be a six‑month delay in delivery. The appellant said that he was bringing in other equipment from Asia, so he got Geoff Stevenson (sometimes known as Bob Stevenson) to start looking for machinery for him. Mr Stevenson had a company named IMAP Pty Ltd and it was a company with whom the appellant had dealt on and off for a period of about two years. IMAP was, in turn, involved with a company named EMAP, in Queensland. From this latter company, the appellant had bought a lot of equipment. Mr Stevenson was originally with EMAP, but had formed IMAP. Through Mr Stevenson, the appellant had been buying scrapers from the United States, Europe, Asia and the Arab region. (The appellant's reference to scrapers was a reference to front‑end loaders.)
The appellant said that, because of an economic 'melt down' in Asia in 1997 and 1998, thousands of items of machinery were being shipped all over the world out of Asia and there were good deals to be obtained. He had a good relationship with Mr Stevenson and he asked Mr Stevenson to find up to six loaders for him, depending on price. Mr Stevenson came back with five or six loaders and a price for them, but the price was slightly dearer than what the appellant was paying in Western Australia. He therefore went to Mr Cardaci to see whether he could get a better deal, but, in the end, he decided to acquire three of the loaders from Mr Stevenson in Asia. Mr Stevenson described them as 'near new' Samsung front‑end loaders.
The appellant gave complicated evidence about the way in which he was to pay for these front‑end loaders (together with other stock), but the essence of his evidence was that three Samsung front‑end loaders each came out to Australia and each was the subject of an IMAP invoice. The appellant said that he was not sure whether he had ever seen the invoices, but that he had no doubt that the three front‑end loaders had come to Australia. He said:
You know it's alleged that the three Samsung front-end loaders didn't come to Australia. What do you say to that?‑‑‑They're wrong. That's incorrect.
Do you know that they did come?---Yes, I do.
Where did they go to?---I believe those ones went to Hazelmere.
Hazelmere being what?---To the Westgroup site.
Westgroup, which was run on a day-to-day basis by your brother John?‑‑‑That's correct.
How do you know - why do you believe they went there?---Well, I seen them there when I go to site and, secondly, Stevenson was renting a yard out at the Adelaide Street land fill and he would've lobbed them to his yard for delivery to us.
When you saw them did you take any note of either the serial number or the engine number?---No.
The appellant said that he knew nothing about the three front‑end loaders with the serial numbers shown on the invoices being in Korea. He said that he saw Westgroup operating the machinery. It was being used at a landfill site. He took no notice of any engine or serial numbers, but he was able to say that each of the machines was a 'cleanskin', in the sense that it had no markings. When brought into the country, any Asian writing on the machines was stripped off for two reasons. The first was that he did not want machines with foreign language that 'you don't understand on [them]', and the second was that the markings or decals were taken off for safety reasons.
The appellant said that he liaised with Mr Stevenson on the buying of the machines and in paying commissions in relation to them. There was a Malaysian spotter, who received a fee from Mr Stevenson. The appellant said that probably $20,000 was paid to Mr Stevenson in this way in relation to each machine.
The appellant said that he did not personally go to the wharf when the machinery came in (he said, 'I'd spend my life on the wharf') and that, at the relevant time, he was bringing in 40 or 50 machines per month. They were mainly heavy plant in the form of scrapers, dozers and dumpers.
The appellant said that the front‑end loaders in question were of no particular significance to him. They were described as a 'tool'. They were not a primary piece of production machinery. He said that he knew of no misrepresentation to the NAB in relation to any of the front‑end loaders and that he believed that the front‑end loaders he saw at Hazelmere were the ones that were invoiced by IMAP.

In the course of his evidence, the appellant produced some photographs of front‑end loaders, which he said had originated with Mr Stevenson. He said that they had been found in what was described as a Briecom box (Briecom appears to have been a Pollock company). The photographs were found only shortly before the trial. They included a number of photographs of scrapers, and at least one of the photographs depicted Mr Stevenson, who was since deceased.
Three photographs were produced of the scrapers which had been sourced by Mr Stevenson. Serial numbers were inscribed on the windows. Also produced were shipping documents for the scrapers. There were 13 sets of shipping documents produced, together with what were described as 'certificates of title'. A bundle of shipping documents was tendered in evidence as exhibit S. It was contended that these included documents relating to the three front‑end loaders in question.

Counts 8 and 13 to 17

The counts on the indictment which made up these six charges were each based on the provision to the NAB of an invoice which purported to come from Curran Holdings Pty Ltd, but which the prosecution contended Peter John Curran of that company knew nothing about.
The prosecution case was that there was an arrangement which existed between the appellant and Mr Curran, pursuant to which Mr Curran would receive an invoice from the appellant in the name of a Pollock group company purporting to be the sale to Mr Curran's company of a piece of equipment. Mr Curran would then, in turn, invoice the Pollock group company (or a company he was directed to invoice) for the same piece of equipment at the same price. His invoice would then be used as the basis for a hire‑purchase transaction with the NAB, or some other financial institution.
The charges which made up these six counts on the indictment consisted of allegations that, in each case, Mr Curran did not know about the use of his company's invoices in the transactions. It was conceded that he may have known later, but it was contended that he did not know about the use of his invoices at the relevant time.
Mr Curran gave evidence that, in relation to the transactions the subject of counts 15, 16 and 17, he was told by the appellant about them after they had occurred. He then prepared duplicate invoices, assisted in the cashing of bank cheques which had been issued in the name of his company from the NAB, and bought further bank cheques payable to payees specified by the appellant.
It was put to Mr Curran in cross‑examination that there was an arrangement between the appellant and Mr Curran, by which Mr Curran had authorised the appellant to use Curran Holdings Pty Ltd invoice letterheads in Mr Curran's absence. The relevant passage from the transcript is in the following terms:
What I'm suggesting to you - and you may not now recall it after all those years - is that at some point quite early in your association you gave Mr Pollock a batch of your blank invoices so that when you were away, he could fill them out?---I don't recall that being the case.
You don't recall?---I can't recall, no.
Do you accept that it's possible, being so far back, that that happened and you have simply forgotten?---It's possible but unlikely - but possible. It's not the sort of thing I would do. I wouldn't give it out to anybody else. In those days we were doing a lot of invoices, a lot of paperwork, with Kevin.
Do you agree that there were times though when you were away and he was in need of refinancing fairly urgently?---Yes.
What I am suggesting to you is that to cover that situation, you and he decided that he would have blank invoices; he would let you know when he had used blank invoices and you were then going to fill out an invoice when you came back to cover it?---I don't recall the blank invoices but I recall the invoices coming back after I had been away. He said these were done and I said that we needed to get the invoice numbers right and we needed to do that properly.
The appellant gave evidence that he had been given blank invoices by Mr Curran. He said:
Were there occasions when Mr Curran was not available to produce an invoice?---In the later parts, getting into 2000, late 2000, 2001, he was doing a bit of overseas work himself.
Overseas work in the sense that he was travelling out of Australia?‑‑‑Travelling interstate or overseas for purchasing and he was mucking around with a bit of mining, I think.
Did this cause you any problem, when he wasn't there?---No. At times we would have something ready to go and then we would give him a call. 'I won't be back for a couple of days.' That's when I had the discussion with him about getting the information to the bank and then him fixing it up when he comes back.
All right. Can you tell us what discussion you had with Mr Curran about what might be done if he was not available?---Well basically, if he was not available - because we had - we prepared an invoice for Curran so all the information was on the sheet, so basically what we would do is copy that onto his letterhead that he gave me, send that to the bank and then he would do the invoice when he got back.
Was that a matter that was discussed with Mr Curran, as to that procedure?---Yes, definitely.
To enable you to do that did Mr Curran give you anything?---Yes. He gave me a batch of Curran letterheads.
This testimony related to the invoices used in relation to counts 8 and 13 to 17. I will not repeat it when making reference to the case against the appellant on each of those counts.
The appellant's case was, in essence, that Curran Holdings Pty Ltd invoices were used with the authority of Mr Curran. The appellant was unable to recall specifically whether on these occasions Mr Curran had been away, but he reiterated that he had approval from Mr Curran to use his invoices in those circumstances.

Count 8

The transaction the subject of count 8 was a hire‑purchase agreement between the NAB and MM Developments Pty Ltd for a used 1982 Caterpillar 637D twin powered motor scraper. Its value was $302,500. The appellant signed the agreement as a guarantor and as a director of Peat Resources Pty Ltd (another Pollock group company). This company was a corporate guarantor. The transaction involved the use of a Curran Holdings Pty Ltd invoice. The prosecution case was that Mr Curran had not issued the invoice. Mr Curran gave evidence to this effect. Funds were paid out by the NAB and deposited into the account of Soils Ain't Soils Pty Ltd, which was another Pollock group company. They were then transferred elsewhere.

Counts 13 and 14

The transactions on which these counts were based each concerned a hire‑purchase agreement between the NAB and All Terrain Aust Pty Ltd. The agreements each related to two Terex dump trucks. In each case, the transaction involved the use of a Curran Holdings Pty Ltd invoice. Mr Curran gave evidence that the invoices were not his.
The prosecution led evidence from Douglas Burkett Green, who had, at the relevant time, been a director of All Terrain Aust Pty Ltd. This company was involved in bringing all terrain trucks (known as 'Tatras') out of the Czech Republic into Australia. They were used for drilling and heavy off‑road work. Mr Green said that the appellant offered to assist All Terrain Aust Pty Ltd to raise money for working capital by providing the means by which these trucks could be financed by the NAB. Mr Green's evidence was:
Was there a proposal at some stage involving some Terex dump trucks?‑‑‑Yeah. We needed some funds to be injected and Kevin said that one of his companies had some trucks and they were unencumbered so if he put the trucks in to be financed by the National Bank and then that company would then - the money would go to All Terrain to run its business and the company - the trucks would remain in the earthmoving company and earn the income and make the payments on the lease.
When you say 'would remain in the earthmoving company', which company do you mean?---I think it was Goldfields.
One of Kevin Pollock's companies?---That's correct.
But by this means All Terrain would get the money which would be provided by the bank. Is that correct?---That's correct.
And did you have discussions to the effect that you have just described with Mr Pollock?---Yes, I did. Yes.
Mr Green said that he signed two leases for four Terex trucks. Mr Green said that, following his signing of the agreements, $198,000 in funds in respect of each agreement was deposited into the NAB account of All Terrain Aust Pty Ltd. Mr Green said that, at no time, did he see the Curran Holdings Pty Ltd invoices. He went on to say that, shortly after this, $198,000 was withdrawn from the account without his knowledge.
In relation to this claim, the appellant gave evidence that he was owed money in relation to some land that he had found for All Terrain Aust Pty Ltd. The amount was $200,000, being All Terrain Aust Pty Ltd's share of the initial deposit. The appellant said that he opened a 'Goldfields account' for the purpose of the settlement of the property and, because All Terrain Aust Pty Ltd did not have the requisite funds at the time of settlement, he later took $200,000 from All Terrain Aust Pty Ltd and deposited it in the Goldfields account.
The mechanics of what the appellant did in relation to this money do not themselves form part of the charges the subject of counts 13 and 14. The prosecution case was that the transactions were an attempt on the appellant's part to obtain funds in respect of equipment that All Terrain Aust Pty Ltd did not own. There was cross‑examination of the appellant on the point. In the course of that cross‑examination, the appellant agreed that the trucks the subject of the transactions were never owned by Curran Holdings Pty Ltd, nor were they supplied by Curran Holdings Pty Ltd. They were, at all times, in the hands of Kalgoorlie Contracting and they were never delivered to All Terrain Aust Pty Ltd.

Count 15

Count 15 alleged the use of a single Curran Holdings Pty Ltd invoice in relation to hire‑purchase agreements between the NAB and Westgroup Pty Ltd for a used 1991 Caterpillar 992 wheel loader/dozer at a cost of $275,000 and a used 1997 Komatsu PC450‑5 hydraulic excavator at a cost of $203,500. A Curran Holdings Pty Ltd invoice was created in relation to this equipment. Mr Curran said that the invoice did not appear to be his.
The NAB issued a bank cheque for $478,500 in favour of Curran Holdings Pty Ltd, which Mr Curran deposited into his company's account with the Challenge Bank. He then purchased bank cheques on the appellant's instructions, which included a number of cheques payable to the Australian Taxation Office.

Count 16

This count again alleged the use of a Curran Holdings Pty Ltd invoice. It referred to equipment which was the subject of a hire‑purchase agreement between the NAB and Westgroup Pty Ltd. In this case, it related to a 1997 Kenworth T950 tandem prime mover at a cost of $176,000. Mr Curran gave evidence that the invoice was not his. The NAB issued a bank cheque for $176,000 in favour of Curran Holdings Pty Ltd, which Mr Curran deposited into his company's account with the Challenge Bank. He then purchased bank cheques on the appellant's instructions, which were paid in one instance to a finance company and, in another, to a company associated with the Pollock group.

Count 17

This count alleged the use of a Curran Holdings Pty Ltd invoice which referred to three pieces of equipment. Again, Mr Curran gave evidence that it did not appear that the invoice was his. The transactions in question were three hire‑purchase agreements between the NAB and MM Developments Pty Ltd. They related to a used 1998 Case 821B front‑end loader, a used 1986 Caterpillar 769C dump truck and a used 1997 Case 821B front‑end loader. Their values were $137,500, $165,000 and $132,000 respectively. The NAB issued a bank cheque for $434,500 in favour of Curran Holdings Pty Ltd, which Mr Curran deposited into his company's account with the Challenge Bank. He later purchased bank cheques on the appellants instructions and they were paid at the appellant's direction.

The issues

The issues in the case were as follows:
(1)The IMAP invoice charges (counts 1 to 3): The key issue was whether the three front‑end loaders which were the subject of the IMAP invoices were front‑end loaders in Korea, or whether they were front‑end loaders which had been imported into Australia by the appellant through Mr Stevenson's company.
(2)The Curran Holdings Pty Ltd invoice charges (counts 8 and 13 to 17): The key issue in relation to these charges was whether Mr Curran had given authority for the use of his company's invoices in respect of each of the transactions in question. Alternatively, the question was whether the appellant honestly believed that Mr Curran had given that authority.
Thus seen, the issues appear to be very simple. However, there was much underlying evidence which went to those issues. The evidence was not complex as such, but it occupies a substantial portion of transcript and many exhibits.
The jury was supplied with two volumes described as 'Jury Books'. They contained the exhibits which related to each of the counts on the indictment. The two books contain very substantial volumes of material.
The two issues I have identified were thrown up by the defence case. The onus of proof remained with the prosecution to establish each element of each count on the indictment and to prove those elements beyond reasonable doubt.

Grounds of appeal

Ground 1

The first ground of appeal contends that the trial judge failed adequately to direct the jury both as to the law and the possible use of the relevant facts upon any matter upon which the jury could, in the circumstances of the case, base a verdict in whole or in part.
No complaint was made at the hearing of the appeal about any directions on law. The real complaint is that the trial judge did not direct the jury in relation to the relevant law with reference to the facts of the case. By 'facts', the appellant effectively means the relevant evidence in the case.

The trial judge's direction

The trial had proceeded for a period of approximately two weeks when the trial judge summed up to the jury. His summing up had been preceded by the addresses of the prosecutor, counsel for the appellant and counsel for the co‑accused.
Counsel for the appellant began his address to the jury at approximately 12.13 pm on 28 October 2008 and continued that day until approximately 3.30 pm. Counsel for the co‑accused then began to address the jury. His address was interrupted at approximately 4.00 pm on 28 October 2008 and it resumed at 10.00 am on the morning of 29 October 2008. It then proceeded until 12.07 pm, when the luncheon adjournment was taken.
The trial judge began his directions to the jury at 1.32 pm on 29 October 2008. Those directions continued until 2.55 pm, when the jury retired to consider its verdict.
The trial judge began by telling the jury that there was no denying the fact that the case was complex. This was because there were 'lots of documents and lots of witnesses'. The trial judge said to the jury that the fact that the case was complex merely meant that it required serious attention.
The trial judge's directions to the jury on law are uncontested. His Honour grouped the counts into a number of categories. He categorised 'event 1' in relation to the appellant as counts 1, 2 and 3 on the indictment, which related to the IMAP invoices and the hire‑purchase agreements with Westgroup Pty Ltd. He categorised 'event 2' as count 8 on the indictment, being what he termed the 'Curran invoice, and a hire‑purchase agreement with MM Developments'. His Honour categorised 'event 3' as counts 13 and 14, which he considered to be interlinked because they related to All Terrain Aust Pty Ltd. He categorised 'events 4, 5 and 6' as counts 15, 16 and 17 respectively. His Honour said that there were two hire‑purchase relationships with Westgroup Pty Ltd and one with MM Developments Pty Ltd. In fact, the three counts embraced three hire‑purchase agreements between the NAB and Westgroup Pty Ltd and three such agreements between the NAB and MM Developments Pty Ltd.
The trial judge directed the jury in relation to the elements of fraud within the meaning of s 409(1)(d) of the Criminal Code. It is unnecessary to refer to those directions, because there was no challenge to them.
In the course of his directions on law, the trial judge identified some of the issues in the case. The first of those was the issue of false invoices. In relation to this issue, the trial judge said to the jury:
As I say, the fraudulent means here asserted are the use of false invoices. The invoices it is not said - the invoices did not, it is said by the prosecution, portray what the true position was in respect of the machinery mentioned within it. For example, in the first three invoices the prosecution say in relation to the Samsung front‑end loaders they were never, ever in Western Australia. There were no such loaders in Western Australia. No such loaders with those serial numbers and details were in Western Australia.
The Pollock group had five Samsung low‑loaders - front end loaders, which in fact they had received through Mr Cardaci, but these did not relevantly exist. They existed in Korea but they did not any time relevantly exist. That's a question of fact. I am using it simply as an illustration that what the prosecution say is that they were false invoices.
His Honour then turned to the 'Curran invoices' and said:
... they are in a different category. There was machinery, so the prosecution say, but the Curran invoices were not authorised by Mr Curran.
Some of them came after the event when he was away and they were documents which did not tell the truth about themselves because in reality the machinery was Mr Pollock's or the Pollock group's machinery and that the Curran invoice was a device used to support the hire‑purchase agreement. That in essence is what the prosecution say.
This direction told only half the story. The prosecution did not complain that the use of Curran invoices was fraudulent in itself. It was the use, without Mr Curran's knowledge, of his invoices that constituted the allegation of fraud.
The trial judge told the jury that there were two issues which arose in relation to the documents. He said:
A document might be false. It might really tell a lie about itself but unless the person who is using the document knows it is not true, then they cannot be using fraudulent means. It's a pretty simple enough concept. If you don't know that something is false, how can you be using it fraudulently? That of course is one of the issues in this case and it is for the prosecution to prove that fraudulent means were used with an intention to defraud and an essential element of that is that the person who used the invoice - if you found the invoice was false, also that the person who used it knew that it was not true.
This last direction was truly a direction on law. The trial judge did not attempt to relate any of the facts of the case.
In the course of his direction on intention to defraud, the trial judge identified a further issue. He said:
In considering the question of intention to defraud, that is a matter to be ascertained from the facts if it is possible, bearing in mind it can only be ascertained if you are satisfied beyond reasonable doubt that there was an intention to defraud. In relation to the accused Kevin Pollock, one of the circumstances you will consider is whether or not the state can establish that he was not authorised by Mr Curran to prepare and send off invoices and whether or not he did not believe himself to be so authorised.
No attempt was made, when identifying this issue, to relate any of the evidence. His Honour added:
The state says that all the Curran documents, invoices, were false; they were in effect a way of getting money out of the bank without increasing the overdraft of the Pollock group, and that's really what Mr Pollock said. He knew that the bank required an invoice from a dealer. If the invoice was created by him and used with intent to defraud the bank in the way that I have said, whether Mr Curran authorised it or whether he believed that Mr Curran authorised it may not in the end matter if you were to conclude that the sole purpose of using the invoice was to satisfy the bank, even though the bank obtained title to the goods in due course. This is an observation on the facts. It's not binding on you.
You are, however, obliged to consider, in your consideration of the case, the question of not only whether he had authority from Mr Curran but whether he believed he had authority to do so, and if there was a reasonable possibility that he believed that he had authority, whether that affected the intent for which the prosecution is required to prove; that is, an intent to defraud the bank.

The trial judge then told the jury that he wanted to turn to questions about the evidence. The directions were, however, only directions about the way in which evidence should be treated. They flowed into a direction on circumstantial evidence, but none of the circumstantial evidence was specifically identified.
Towards the end of the trial judge's charge to the jury, his Honour made reference to the witnesses. His Honour said that he was not going to summarise the evidence of each of the witnesses, firstly because the jury had heard very experienced counsel comprehensively summarise the evidence from their client's point of view and, secondly, because the jury could, at any time, if unsure about the evidence of a witness, send a note through the foreperson requesting the relevant transcript to be read.
A schedule of witnesses was given to the jury and the trial judge ran through that schedule, identifying where the evidence of various witnesses related to particular counts. No attempt was made to relate the evidence itself.

Request for redirection

At the conclusion of the trial judge's summing up, counsel for the appellant raised a number of issues. One of them was the requirement for the trial judge to relate the evidence to the elements of the charge preferred against the appellant. Counsel said:
... your Honour should have explained more clearly perhaps or more explicitly the elements of the charge and related the evidence to those elements, both from the viewpoint of the defence and the prosecution. I say that having already of course - or bearing in mind that your Honour has said that the jury has heard from counsel for the defence and prosecution, but in my respectful submission, that is not enough.
This submission was supported by counsel for the co‑accused. There was no specific submission on the subject from counsel for the prosecution.
The trial judge declined to give any further direction in which the evidence in the case was related to the law as he had explained it. His Honour said:
In relation to the point about relating the element to the charge and the evidence to the elements - and I am familiar particularly with RPS v R - each case depends on its own circumstances and I made a deliberate decision to direct the jury in the way I did, believing that that is the way to appropriately put the case. Whether it's right or wrong, it was a sin of commission and not omission.
A redirection was given to the jury in relation to the Curran invoices, with a clear direction that the jury would have to be satisfied that the appellant did not believe he had authority to use Mr Curran's invoices in the way in which he did.
On the morning of 30 October 2008, the jury asked to be reminded of the evidence of a witness and that evidence was read to the jury. The following morning, 31 October 2008, the jury was recalled and given a number of directions. Prior to this occurring, counsel for the appellant again raised the question of the trial judge's directions on the law and his Honour's failure to identify from the evidence what the relevant issues were. Counsel handed up to the trial judge a note of the terms in which a redirection should be put. It was submitted that this should 'at least' be put to the jury. The note was in the following terms:
NOTE HANDED TO TRIAL JUDGE 31 OCTOBER 2008
The trial judge must 'give an adequate direction, both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case base a verdict in whole or in part' (Pemble vR (1971) 124 CLR 107 at 117, cited by Seaman J in Versteeg v R. The jury should therefore be directed, as to intention and circumstantial evidence, as follows:
1.They cannot convict unless satisfied beyond reasonable doubt that the accused had an intention to defraud the Bank.
2.In relation to the 'Curran invoice' charges, the prosecution case is that the invoices were not prepared by Curran or authorised by him.
3.The evidence of Kevin Pollock was that he was authorised by Curran to issue Curran Holdings invoices in Curran's absence, and for that purpose Curran gave him some blank pages with Curran Holdings letterhead. Mr Curran denied having given authority to Kevin Pollock to issue Curran Holdings invoices. He said it was possible, but unlikely, that he had given Kevin Pollock some blank Curran Holdings letterheads.
4.Unless you are satisfied beyond reasonable doubt that Mr Curran did not authorise Kevin Pollock to issue Curran Holdings invoices in his (Curran's) absence, you cannot convict Mr Pollock. If you have a reasonable doubt as to whether Curran did or did not authorise Kevin Pollock, you must acquit
5.Even if you were to be satisfied beyond reasonable doubt that Curran did not in fact give Kevin Pollock authority to issue Curran Holdings invoices when he was away, you cannot convict unless you are also satisfied beyond reasonable doubt that when Kevin Pollock issued the invoices, he did not believe he was authorised to do so. If you have a reasonable doubt as to whether or not Kevin Pollock had that belief, you must acquit.
6.Apart from the direct evidence of Kevin Pollock, there is the evidence of Curran's course of conduct in his dealings with Kevin Pollock. First, he admits that Kevin Pollock told him that he had issued the invoice the subject of Count 15, and that he, Curran, issued another invoice which he. sent to the Bank, and continued to deal with Pollock; that the same thing happened again with respect to the invoice the subject of Count 16; and with respect to the invoice the subject of Count 17. Second, he says that there may have been other dealings between him and Kevin Pollock after each of those occasions. Third, Mr Curran admitted that apart from those particular occasions, there may have been 'the other odd occasion' previously- that is, some other similar event or events - when Pollock told him he had issued a Curran Holdings invoice, and Curran had issued and sent to the Bank a replacement, and then continued to deal with Pollock.
7.The defence says that. on that evidence a reasonable inference is open, that Kevin Pollock believed he was authorised to issue Curran Holdings invoices when Curran was away, and that you therefore could not be satisfied beyond reasonable doubt that he did not so believe. Unless you are satisfied beyond reasonable doubt that such an inference is not reasonably open on all of the relevant facts, you must acquit.
Circumstantial Case
8.This is a circumstantial case. There is no direct evidence that Kevin Pollock had an intention to defraud. The prosecution says that you can infer that intention from all of the circumstances in the case. However, before you can be satisfied that Mr Pollock did have an intention to defraud, you must be satisfied, beyond reasonable doubt, that having regard to all of the relevant circumstances in the case, the only reasonable inference is that he did have intention. If, on all of the evidence, there is another inference reasonably open, consistent with his NOT having that intention, you cannot convict.
9.In the case of the IMAP invoices, the prosecution says that you should infer an intention to defraud from the following evidence:
•Mr Yoon's evidence, that according to the Korean company's records, 3 Samsun FEL's with the serial numbers shown on the IMAP invoices never left Korea.
•Mr Cardaci's evidence, that according to his company's records it sold 5 FEL's, 3 to Pasadena, a company associated with the Pollock Group although not part of it, and two to Peat Resources, a company which was a member of the Pollock Group; and that those FEL's did not have the serial numbers on the IMAP invoices.
•Mr Taylor, of Volvo, who said that his company had no record of selling Samsung FEL's to the Pollock Group.
However, the defence points to the following evidence.
•Both Mr Taylor and Mr Cardaci accepted that Samsung FEL's could have been imported into Australia without their knowledge.
•The evidence of Noel John Pollock, a prosecution witness, that Westgroup needed 3 FEL's at that relevant time, for its recycling business at Hazlemere [sic Hazelmere], entered into 3 hire purchase agreements for the 3 Samsung FEL's with NAB, and took delivery of 3 Samsung FEL's about that time, It points to the improbability of Westgroup entering into HP agreements with respect to 3 FEL's, if they did not exist.
•The further evidence of Noel John Pollock, that Exhibit J is a photo of one of those Samsung FEL's, working at Hazelmere. It has no OH&S stickers, or any identification stickers, which on the evidence of Mr Cardaci and Mr Mellor indicates that it was not a FEL which Mr Cardaci sold, or one of the 3 serviced at the workshop managed by Mr Mellor, and is consistent with it having been imported from overseas.
•The evidence of Kevin Pollock, that he arranged for the purchase of 3 Samsung FEL's through Bob Stevenson of IMAP, that he paid for 3 Samsung FEL's before they came to Australia, that he was importing large numbers of plant from overseas, and did not check serial numbers.
•That it is not contended by the prosecution, nor is there any evidence, that he prepared or played any part in the production of the IMAP invoices.
10.The defence says that having regard to all of the evidence, an inference that 3 Samsung FEL's were not bought through IMAP and brought into Australia, and that Kevin Pollock knew that, is not the only inference reasonably open. It says that an inference reasonably open is that 3 Samsungs were purchased through IMAP and brought into Australia, and that if the serial numbers and engine numbers in the IMAP invoices were wrong, Kevin Pollock did not know that.
There were further submissions from counsel for the appellant and counsel for the co‑accused on the necessity for the jury to be directed in accordance 'at least' with the material contained within the note. There was then discussion about when a 'Black direction' should be given. The submissions then appear to have gone off on this tangent. The trial judge then proceeded to redirect the jury on a number of different matters. They were questions of law, including the way in which the jury should treat evidence. His Honour did not attempt to incorporate the matters which counsel for the appellant had contended for.
The jury returned verdicts at 12.24 pm on 31 October 2008. They had retired at 2.55 pm on 29 October 2008.

The judge's duty to charge the jury

In Australian legal history, the classic statement of the obligation of a trial judge when charging the jury is that set out in Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, per Dixon, Williams, Webb, Fullagar and Kitto JJ, at 466:
... it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.
As the Victoria Law Reform Commission (the VLRC) pointed out in its Consultation Paper, Jury Directions (Consultation Paper 6), at 5.41 and 5.42:
This is often referred to as 'Sir Leo Cussen's great guiding rule' [See, amongst others, Tully v R (2006) 230 CLR 234, 248; R v VN (2006) 15 VR 113; R v Zilm (2006) 14 VR 11] and seems often to be cited almost ritualistically in cases dealing with the content of the obligation to sum up [See, recently, HML v R (2008) 245 ALR 204, 237; R v AJS (2005) 12 VR 563, 577; R v Thompson [2008] VSCA 144, [136]. See also those cases referred to at footnote 129 of HML, footnote 28 of AJS and footnote 66 of Thompson]. This simple statement, however, fails to capture the complexity of the task facing the trial judge when preparing and delivering a summing up. That difficulty has been exacerbated by the substantial increase in the volume and complexity of the criminal law since Alford v Magee was decided in 1952.
Alford v Magee is also sometimes said to require the trial judge to summarise the evidence in the case. It does not do so expressly. The obligation of the trial judge to summarise the evidence appears to be much older, apparently predating the adversarial system [Francis Bacon, Lord Chancellor of England, in an essay on the judicial role refers to one of the 'parts' of a judge as being to 'recapitulate, select and collate the material points, of that which has been said': see 'Of Judicature' in Basil Montagu (ed.), The Works of Francis Bacon, Lord Chancellor of England (1825), 56, Bacon was active in the 16th and early 17th centuries, whereas the adversarial system only really emerged in the early 18th century]. The better view appear [sic appears] to be that Alford v Magee requires the judge to only summarise the evidence which directly relates to the facts in issue [A view apparently endorsed by the Victorian Court of Appeal in R v AJS (2005) 12 VR 563]. [5.41], [5.42]
The passage to which the VLRC referred in R v AJS [2005] VSCA 288; (2005) 12 VR 563 is to be found in the joint judgment of Maxwell P, Nettle JA and Redlich AJA, at [55] ‑ [57], as follows:
... it is the responsibility of the trial judge in every jury trial:
(a)to decide what are the real issues in the case;
(b)to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c)to tell the jury, in the light of the law, what those issues are;
(d)to explain to the jury how the law applies to the facts of the case; and
(e)to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.
These propositions are of long-standing and of high authority. They have often been repeated in this court [Alford v Magee (1952) 85 CLR 437 at 466; R v Wilkes & Briant [1965] VR 475; R v Jellard [1970] VR 802; Bellizia v Meares [1971] VR 641 at 644–5; R v Anderson [1996] 2 VR 663 at 666–7; R v Franks [1999] 1 VR 518 at 524–5; R v De'Zilwa (2002) 5 VR 408 at 416–17; R v Dardovska (2003) 6 VR 628 at 633; R v Taylor (2004) 10 VR 199 at 205–6, [23]; R v Yusuf (2005) 11 VR 492 at 499‑500, [15]]. ^{- 28#28} If adhered to, they should serve to simplify, rather than complicate, the task of the trial judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.
In the present case, there were two real issues - penetration and intention. It was the obligation of the trial judge to explain the law, and summarise the evidence, so far as relevant to those issues. It was both necessary and sufficient for her to have done so. [55] ‑ [57]
A more recent decision of the Victorian Court of Appeal is R v Thompson [2008] VSCA 144, where Redlich JA (with whom Hansen AJA agreed) repeated the common law obligations of the trial judge in summing up to the jury. His Honour said:
The common law obligations of a judge in every jury trial were summarised in R v AJS [[2005] 12 VR 563]. - 61#61 They include an explanation to the jury as to how the law applies to the facts of the case, identification of the issues in the trial, relating the issues to the facts of the case [RPS v The Queen (2000) 199 CLR 620, 637 (Gaudron ACJ, Gummow, Kirby, Hayne JJ); R v Defrutos [1998] 2 VR 589, 597–8 (Callaway JA); R v Anderson (1996) 2 VR 663, 666–7 (Winneke P)] and summarising so much of the evidence as is relevant to the facts in issue by reference to the issues in the case. These obligations subsume the judge's obligation to ensure that the prosecution and defence case is clearly placed before the jury, usually by summarising the addresses of counsel, on both sides. [R v Yusuf (2005) 11 VR 492; R v Crockett (2001) 124 A Crim R 312, 315 (Ormiston JA); R v Dao (2005) 156 A Crim R 459, 465 (Buchanan, Vincent JJA and Byrne AJA).]
The applicant submits there was a failure to comply with the common law obligations as a consequence of the direction to put aside the documents given to the jury and further submitted that the trial judge had failed to give any oral summary of the evidence in the case and in particular the defence case and had not given an adequate direction as to how the evidence related to the issues.
The principle stated in Alford v Magee [(1952) 85 CLR 437] that the law must be given to the jury with an explanation of how it applies to the facts, [Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ); R v Zilm (2006) 14 VR 11, 22 (Eames JA)] together with the well‑established concomitant obligation to identify the issues and the evidence relevant to those issues, has been the subject of extensive attention in this court. [R v Anderson [1996] 2 VR 663, 667 (Winneke P, Brooking JA and Southwell AJA concurring); R v Frank [1999] 1 VR 518, 524 (Winneke P, Tadgell and Batt JJA concurring); R v Dao (2005) 156 A Crim R 459, 465 (Buchanan, Vincent JJA and Byrne AJA); R v De'Zilwa (2002) 5 VR 408 (Ormiston JA) 416‑7, (Charles JA). Alford v Magee was again discussed in Fingleton v The Queen [(2005) 216 ALR 474, 495] by McHugh J who referred to the obligations of the trial judge to 'identify the real issues in the case, the facts that are relevant to those issues and [provide] an explanation as to how the law applies to those facts'. [134] ‑ [136]
Redlich JA added, at [137] ‑ [139]:
In the oral charge, the jury’s attention must ordinarily be drawn to the relevant evidence which bears upon the issues of fact in dispute. The duty to expose the facts relevant to the issues is not confined to the ultimate facts in issue comprising one or more of the elements of the offence but relates also to the substratum of facts which are in dispute and which bear upon the resolution of the ultimate issues. [See, for example, R v Yusuf(2005) 11 VR 492, 501–2 (Winneke P).] The evidence which is relevant to those subsidiary issues must also be identified. Ormiston JA in De'Zilwa spoke of the fallacy in assuming that jurors will recollect the same things that a trained and experienced lawyer would recollect. [R v De'Zilwa(2002) 5 VR 408, 410.] Moreover, the real significance of pieces of evidence may not be apparent when the evidence is given. A common experience of trial judges has been that the jury may not have recognised the significance of individual pieces of evidence or how that evidence relates to other evidence and supports an argument of a party during the course of the evidence.
Though the common law obligations prescribe the minimum assistance which a jury must be given, there is no particular means by which the oral directions must satisfy them. The level of particularity at which the evidence and arguments need to be summarised will vary, depending upon the nature of the issues and the circumstances of the trial. [Compare R v Bartle (2003) 181 FLR 1.] The summary should highlight the evidence which bears upon the resolution of the issues in the trial without an unnecessary recitation of unimportant evidence. [R v Zilm(2006) 14 VR 11, 29–30 (Eames JA); R v Andrakakos[2003] VSCA 170, [10]–[18] (Ormiston JA).] But enough must be said to ensure that the jurors have sufficient knowledge and understanding of the relevant evidence and the issues to which they relate, to discharge their duty to determine the case according to the evidence. [Domican v R (1992) 173 CLR 555.]
Directions given in a very short trial involving a simple factual issue may differ considerably in their content from those required in a lengthy or more complex trial. It is for the trial judge to craft the oral directions in such a way that ensures that the oral exposition is sufficient. In R v VN [(2006) 15 VR 113, 144–5 (Redlich JA).]^{- 73#73} it was recognised that in some circumstances, summarising the respective case for each party might satisfy the obligation of identifying the factual issues in the case by focusing the jury’s attention on the real issues. And if in doing so, reference is also made to the evidence which each party relies upon in relation to those issues, that may be sufficient to satisfy the requirement that the evidence relating to the issues be summarised. [137] ‑ [139]

Counsel for the appellant made extensive reference to the evidence of Mr Cardaci, including a passage in which Mr Cardaci confirmed that if machines came in from overseas with Asian writing on them, the Asian writing would be stripped from them and the machines would be painted over.
Reference was also made to the fact that both Mr Cardaci and Mr Taylor had said that there was nothing to stop somebody bringing in Samsung front‑end loaders otherwise than through the dealer. It was put to the jury that the prosecution case on counts 1 to 3 glossed over the importance of the evidence of John Pollock (a prosecution witness), Mr Cardaci, the appellant and the photograph shown in exhibit J.
The address of counsel for the appellant was interrupted by the luncheon adjournment. At the conclusion of that adjournment, the address continued with the following points being made:
•The prosecution relied upon the fact that the appellant must have paid IMAP more for the front‑end loaders than he paid when he got them through Mr Cardaci.
•However, the appellant's evidence was that there may have been some kind of a trade which was not necessarily reflected in the invoice.
•With Mr Cardaci, the appellant often sold equipment by way of 'mutual set‑off', so that the price shown on Cardaci invoices was not necessarily the gross price paid for front‑end loaders.
Further matters raised in cross‑examination of the appellant were adverted to by counsel. The cross‑examination was referred to in considerable detail. It included the following points:
•The appellant said that he had not bought Samsung front‑end loaders through Volvo because Mr Cardaci had told him that Samsungs were being phased out.
•Although it was put to the appellant that he had just made this up, it was a fact confirmed by Mr Cardaci.
•There was no evidence about where the moneys received in respect of the three front‑end loaders had gone within the Pollock group, but there was no suggestion that, somehow or other, Pollock entities had stolen the money.
•The evidence was that the appellant and his group had paid for what was imported, but, for whatever reason, IMAP must have told the bank that the money could go direct to the Pollock group.
Counsel spent considerable time refuting the proposition that the front‑end loaders in question were part of a batch which had been bought from Mr Cardaci's company. He said that, to the contrary, two of the five machines sold by Mr Cardaci had gone to a nursery business. It could not, therefore, have been the case that the three front‑end loaders were part of a batch bought by the Pollock group from CFC (Mr Cardaci's company).
Counsel told the jury that any suggestion from the prosecution that the appellant should provide further evidence in support of his claim that the front‑end loaders had come in from overseas was a misconception. The accused person was not bound to prove anything. It was for the prosecution to prove that the front‑end loaders did not come in from overseas and that the appellant knew that they were 'indeed phantoms'.
Counsel said that there was no direct evidence whatever to this effect. The appellant had never said any such thing and the prosecution case relied upon an inference from the evidence of Mr Yoon, Mr Cardaci, Mr Mellor and Mr Taylor that the front‑end loaders had not come into Australia from overseas. However, to the contrary, both Mr Cardaci and Mr Taylor had agreed that front‑end loaders could have come in directly from overseas.
Counsel for the appellant then referred to the fact that the prosecution had put to the appellant in cross‑examination that he had made up his evidence that he understood that Samsung front‑end loaders were being phased out by Volvo. However, counsel said that that was exactly what was happening. Evidence before the jury from the website of Volvo revealed exactly that.
Counsel for the appellant concluded his address in relation to counts 1 to 3 by restating that proving that the serial numbers and engine numbers on the invoices were incorrect did not prove that the three Samsung front‑end loaders did not come into Australia. He suggested that the overwhelming evidence was that those three Samsungs did come into Australia and were each the subject of the hire‑purchase agreements. Counsel pointed out that there was no evidence from a receiver, or anybody else, to say that, when they did an inventory, they could not find the front‑end loaders. It was not known that the false ('bodgie') numbers ('if they were bodgie') were put there or dreamed up by Mr Stevenson and IMAP, because Mr Stevenson was not present to give evidence. This left a big gap in the evidence. The fact that the events occurred nine years beforehand was a further complicating factor.
In the end, counsel stressed that the evidence in relation to counts 1 to 3 was entirely circumstantial. There was no direct evidence whatever that the front‑end loaders had not come into Australia and there was no direct evidence that the appellant knew that to be the case.
Counsel put to the jury that there was an inference reasonably open on the evidence which was inconsistent with guilt. It was that somebody, but not the appellant, had put the incorrect numbers on the IMAP invoices. It may have been Mr Stevenson, or it may have been the original vendor, but 'Who knows'.
Counsel stressed that, for the appellant to be guilty, an inference of guilt had to be the only inference reasonably open. At the very least, the jury must be left in a reasonable doubt as to whether the front‑end loaders ('bodgie numbers or not') came into Australia and were each made the subject of a hire‑purchase agreement.
Counsel then turned to counts 8, 13, 14, 15, 16 and 17. He said that there were a number of things that needed to be addressed at the outset. He stressed that the prosecution case was that the only issue in relation to the 'Curran invoices' was whether they falsely represented that Mr Curran had actually issued them, and whether the bank would have paid the money had it known that Mr Curran had not. It was not a question whether the appellant was guilty of some other matter which was uncharged. The case had to be decided on the issues which the prosecution had raised and which the appellant was called upon to meet. Counsel told the jury that this was an important aspect because 'in a case such as this ... the waters tend to get a bit muddied by some of the matters that have been raised'. Reference was made to the question whether the appellant had forged Mr Curran's signature on a cheque or endorsement. Counsel pointed out that this was not a matter with which the appellant was charged. There was no charge of forgery and any issue about it should be put aside.
Counsel identified another issue. That was whether the value ascribed to the machinery on the invoices was misrepresented. Counsel put it firmly that this was not an issue in the case. There was no evidence that the values were misrepresented, nor was there any evidence that could possibly support such a proposition. The prosecution case was that the plant did not exist and that the bank did not get title.
Counsel for the appellant reminded the jury that the appellant had said that, in every case where a Curran invoice was used, there was an arrangement whereby the appellant told Mr Curran about the transaction and Mr Curran then issued an invoice which was essentially the same as that which the appellant had given to the bank. The invoice issued by Mr Curran was then made available to the bank. Counsel asked the jury how, in these circumstances, it could possibly be said that the bank did not get title. Nevertheless, that was not the issue before the jury. The issue of whether or not the bank got title was irrelevant. The question was whether the bank had acted to its detriment by making a payment for goods on the basis of an invoice which was falsely represented by the appellant to be an invoice of Mr Curran.
Counsel for the appellant reminded the jury that the appellant's evidence was that whenever he issued an invoice in the absence of Mr Curran, he did so in the belief that he had Mr Curran's authority to do so. This, said counsel, was a very narrow issue.
Counsel for the appellant said that, while the prosecution might think it extraordinary that a bank manager would make available to the appellant $1 million per month by way of overdraft facility, there was, in fact, nothing extraordinary about it. The bank did not think it was extraordinary because they knew month after month that this was exactly what was occurring.
Counsel stressed to the jury that, at the relevant time, the banks were in the business of lending money. 'Fat profits' were being made from the type of transaction in question and to suggest that there was anything unusual or strange about it bore no intelligent analysis. To the contrary, the bank knew month after month what was happening: hire‑purchase agreements were being entered into between members of the Pollock group and the bank and 'up and up' was going the debt until it got to the credit limit.
Counsel reminded the jury that, from time to time, checks were made by the Pollock group to ensure that it did not go above the agreed credit limit, but that was all. To suggest that there was anything extraordinary about an arrangement between a customer and the bank whereby the debt level gradually increased, counsel said, 'defies the evidence, and defies commonsense'.
Counsel for the appellant detailed the evidence of the appellant about problems he experienced with a particular branch of the bank, and how a Mr Jenaway had brought Mr Bercov from the credit section of the bank into the relationship between the appellant and the bank. Counsel put it that the bank was keen to lend money provided they had security. Mr Bercov said that he would see what could be done and Mr Jenaway told the appellant that an arrangement had been worked out which would fit with the bank's policy. This was 'a very unusual situation' whereby it would have been awkward to finance and refinance the appellant's business on a case‑by‑case basis, and so a financing arrangement was agreed upon which counsel for the appellant described in the following terms:
... So what was the idea they came up with? They said, 'Well, the way we can do it' - and it was Mr Pollock that said, 'They told me this fitted with their policy. I didn't know what their policy was.' 'But the way we can do it is you get a dealer and when you have got the plant that you have been renovating' - or restoring, whatever - 'when you have got it ready where you want to refinance, you can do it through a dealer.'
Let's make no bones about that; that's the arrangement that Mr Pollock has told you the bank put. Mr Staehli has suggested a scam and a trick and all kinds of things, but the bank was working - they were working out how best to meet this important customer's requirements and still apparently fit bank policy of which Mr Pollock only knew what he was told.
He didn't know what the real bank policy was. He didn't know what the bank policy was, that you had to get some independent valuer. All he was told was, 'Look' - as he told you - 'the bank said if you have something you want to refinance, do it through one of our authorised or approved' - I should say - 'dealers in heavy plant and equipment.'
In a sense it was to be a sale - in fact it was in a legal sense a sale because there would be an invoice from Mr Pollock's company, whichever it was, to the approved dealer and in turn the approved dealer would invoice the bank and the bank would then enter into a hire purchase agreement with the Pollock company over the particular asset. In all that arrangement can there really be any doubt that the bank was going to be [sic get] title? The answer is no.
Counsel for the appellant impressed upon the jury that the arrangement with the bank was not 'a sham or a trick'. The appellant had been told by Mr Jenaway and Mr Bercov that it was an arrangement which suited the bank.
Counsel for the appellant told the jury how the appellant had been cross‑examined by the prosecutor and asked why, if this was the true arrangement with the bank, he had not subpoenaed the bank records to show that they had a record of such an arrangement. Counsel said that this was a classic case of attempting to reverse the onus of proof. The appellant was not called upon to subpoena anybody. He did not have to prove anything.
The jury was again reminded of where the onus of proof lay. Counsel said that, although there had been a lot of cross‑examination of the appellant in which it had been put to him that the entire arrangement was a scam or a trick, that was not the issue which was before the jury. What the jury was called upon to try was a much narrower proposition. It was that the invoices allegedly produced by the appellant were prepared and/or produced without the authority of Mr Curran and acted on by the bank to its detriment.
Counsel then put to the jury that the starting‑point was that there was no defrauding of the bank and it was not alleged that there had been any such defrauding. There were probably over a hundred transactions where Mr Curran was used as the intermediary dealer in the way in which counsel had described. It was 'a circular situation' where Mr Curran did not himself expect to get money for the goods. In the end result, he got a $2,000 or $3,000 fee for doing what he did.
Counsel suggested to the jury that the transaction had the net result that the bank got title to the goods and then leased them on a hire‑purchase agreement to one of the Pollock entities. The money that the bank paid for the goods ended up directly or indirectly with the Pollock group, as it should have, because the Pollock group was the one that had produced the plant.
Counsel then dealt with what occurred during Mr Curran's absence:
When Mr Curran was away Mr Pollock's evidence is that there were occasions, when he was away, and they wanted to do such a deal and Mr Curran told him - gave him a batch of Curran letterhead[s] and told Mr Pollock that when he was away, that's Curran, Mr Pollock could produce an invoice for the goods and when Mr Curran came back Mr Curran would issue a fresh invoice to get the right number and so forth, but exactly the same goods, exactly the same amount and exactly the same result, the result being, just as in the other many cases, the bank would own the goods, Curran would get his fee, a hire purchase agreement would be entered into with insurance, as you have heard, in every case with one of the Pollock group which would then start paying off the hire purchase. That's why I said to you, there is a certain air of unreality about these charges. Where is the problem? What is the fraud?
Counsel placed emphasis upon the evidence of Mr Curran that it was possible that he had given authority to use the invoices. His evidence was quoted in detail. Counsel put it to the jury that it might be impossible to judge what the position was. He said that if it was impossible to work out where the truth lay, how could the jury be otherwise than left with a reasonable doubt. A doubt would have to be raised in the jury's mind as to whether Mr Curran was right because, on each of the occasions when there was alleged to have been a false invoice, Mr Curran kept on dealing with the appellant. Counsel asked whether this was consistent with somebody saying that they did not authorise the appellant to do it. He put it this way:
... Now, is that consistent with someone saying, 'I didn't authorise Mr Pollock to do this'? You would think he would say, 'I'm putting a shutter on this. It's not going to happen again,' but every time it happened. You take the evidence of the last three counts, 15, 16 and 17. He kept on dealing. Isn't that consistent, you would think, with his having either expressly or by implication, authorised Mr Pollock to sign invoices or produce invoices while he was away to be replaced on his return, so as just to get things moving?
Even if you were to think, 'Well, no, we don't accept the evidence of Mr Pollock; we accept the evidence of Mr Curran who said, "I didn't authorise this to happen''', even though he let it go on and on, there is a further question: are you satisfied that Mr Pollock did not believe that he was authorised? He certainly acted as if he believed he was authorised because he did it and he would tell Mr Curran every time he did it. That's hardly the act of a person who has done something without authority.
Counsel reminded the jury that it was not contended that the bank did not get title. That was not the issue. It was not contended that the bank lost money. The contention was that if the bank had known that the appellant and not Mr Curran had sent the Curran invoice, it would not have paid the money. Counsel asked the jury whether that was the evidence from the bank. He said it was not. He said that the evidence from the bank was that, if it was known that the invoice had been prepared by the appellant, further instructions would have been sought. Counsel said that 'We don't know what Mr Jenaway would have said or done but it's a fair bet that he would have rung his good customer [the appellant] and said ... "we need one from Curran"'.
Counsel reminded the jury that all the bank wanted was an intermediary. Alternatively, if Mr Jenaway had asked the appellant how it was that he was using a Curran invoice, the appellant would have told him that he was authorised to do it because he had a batch of Curran letterheads. Counsel said that what he was putting was that the evidence needed critical analysis. When you looked at the evidence of the bank officers, it could be seen that it did not stand up. Nobody knew what Mr Jenaway would have done. The probability was that the deal would have gone on. There was no evidence that it would not have gone on.
Counsel then referred to counts 15, 16 and 17 where the invoices were issued after the death of Mr Jenaway and when Andrew David Strongman was temporarily in charge. Counsel referred to the evidence of Mr Strongman, which revealed that, if he had known that the invoice was issued by the appellant, he would have made inquiry of Mr Curran to provide the veracity of the invoice. Counsel pointed to the fact that Mr Strongman agreed that, if Mr Curran had said that to settle all doubts he would prepare an invoice for the same goods, the transaction would have gone ahead. Counsel then said:
That's very, very important; that is, the question of detriment, proof of detriment, depends upon the prosecution establishing beyond reasonable doubt that the bank would not have paid the money had it known, had it known that Mr Pollock had produced these invoices. What I submit to you is that is not the evidence; it doesn't support that proposition. Sure there would be an inquiry but can you really say that's a detriment ...
Counsel for the appellant made detailed reference to the evidence of the appellant on the issue. He had said that Mr Curran, although invited to do so, had never gone to the appellant's workshop. Mr Curran had never caused any problem whatever in relation to the way in which transactions occurred. The appellant's evidence was quoted:
All right. Can you tell us what discussion you had with Mr Curran about what might be done if he was not available?---Well, basically if he was not available - because we'd prepare an invoice for Curran so all the information was on the sheet - basically what we'd do is copy that onto his letterhead that he gave me, send that to the bank, then he'd do the invoice when he got back.
Was that discussed with Curran as to that procedure?---Yes, definitely.
To enable you to do that did Mr Curran give you anything?---Yes. He gave me a batch of Curran letterheads.
Are you able to say with certainty how many times that occurred -
that is, that they produced an invoice in Mr Curran's absence:
Not any more, no.
He said later:
What was he to do?---He would do his invoice and send it to the bank.
Is that what he told you he did?---Yes.

There were further references to the evidence of Mr Curran and the jury was told that, at no time, did Mr Curran say that he had given instructions to the appellant to stop using his invoices or no further deals would be done. This evidence, he said, was very important:
It's very important evidence, that evidence of Mr Curran's. He didn't stop dealing with Mr Pollock and Mr Pollock, whether he was right or wrong, could certainly believe that he was authorised to do it. Unless you're satisfied beyond reasonable doubt that he didn't believe that he had the authority of Mr Curran to do it, how can you find that he was acting dishonestly?
Counsel concluded his address to the jury by telling the jury that in relation to the Curran accounts, the first question was whether the invoices were false in the sense that they made a false representation that they were issued by or authorised by Mr Curran. If, in fact, they were authorised by Mr Curran, they could not be false. Counsel put it that there might have been an implied authorisation, or a general authority, that the appellant could issue invoices in those circumstances and that they would later be covered by another invoice when Mr Curran returned. Counsel said that there was a question not only whether the appellant was authorised, but whether it could be concluded on the evidence that he could not have believed he was authorised. If the jury was not satisfied that he did not believe he was authorised, they could not find him guilty of dishonesty.
Counsel for the appellant said that it was an unusual fraud case. It was not a case of somebody 'putting one over the bank and running off and spending the money on horses or yachts', but a case in which the money that was obtained went back into the business operations, and there remained an ongoing relationship between the bank and the Pollock group of companies. All that the prosecution could say as to the detriment suffered by the bank was that it would have made inquiry had it known of the fact that the appellant had issued six invoices himself. Counsel said that the answer to this was that if the bank had made such inquiry, the answer would have been, 'I'm authorised - I was authorised by Mr Curran to issue these invoices in his absence' and that would have satisfied the bank's inquiry. Counsel reminded the jury of where the onus of proof lay and then concluded his address.
I have dealt at length with the address of counsel for the appellant. The summary of it reveals that there was much that the trial judge could have said about it. It may not have been necessary to spend as much time as I have done in summarising what the appellant's counsel said, but much of what I have written could easily have been conveyed to the jury. For the trial judge to have done so would have been a simple exercise.
The note handed to the trial judge on 31 October 2008 incorporated a suggested basis upon which the defence case could have been put. It referred in detail to the evidence of Mr Taylor, Mr Cardaci, Mr Noel Pollock, Mr Mellor and the appellant. It was a very succinct summary of their evidence and of the elements of the defence case. It could have incorporated much more. None of what the defence requested was put before the jury. The trial judge gave only a very brief summary of the evidence given by the appellant. In my opinion, it was inadequate in the circumstances of the case.
I would allow ground 2.

Was there no substantial miscarriage of justice?

In my opinion the trial judge's failure to relate the evidence in the case to the facts in issue and those facts in issue to the law constituted a serious breach of the presuppositions of the trial process.
This, therefore, denies the application of s 30(4) of the Criminal Appeals Act 2004 (WA) which provides that, even if a ground of appeal might be decided in favour of the appellant, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The phrase 'serious breach of the presuppositions of the trial process' was used by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, at [45] ‑ [46]:
... no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso [See eg, Wilde v The Queen (1988) 164 CLR 365 at 373; cf Conway (2002) 209 CLR 203 at 241 [103] per Kirby J, referring to R v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143 at 148 per Herron CJ; R v Henderson [1966] VR 41 at 43 per Winneke CJ; R v Couper (1985) 18 A Crim R 1 at 7 - 8 per Street CJ].
In Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, Brennan, Dawson and Toohey JJ said, at 373:
... The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg v Hildebrandt [(1963) 81 WN (Pt 1) (NSW) 143, at p 148]; Reg v Henderson [[1966] VR 41, at p 43]; Reg v Couper [(1985) 18 A Crim R 1, at pp 7 ‑ 8].
The errors made by the trial judge were, in this case, such that the appellant did not have proper trial. They were radical or fundamental errors, which, by their very nature, exclude the application of s 30(4) of the Criminal Appeals Act 2004 (the proviso).

Conclusion

In my opinion, both grounds of appeal have been made out. The appeal should be allowed, the convictions of the appellant should be quashed and there should be an order for a retrial.

Appeal CACR 162 of 2008 (sentence appeal)

As I would allow the appeal against conviction and order a retrial, it is unnecessary for me to deal with the State appeal against the inadequacy of the sentence imposed upon the appellant. I would quash the suspended sentence of imprisonment and order that the fine paid by the appellant be remitted to him within a period of 28 days. No further consideration of the sentence appeal is called for in the circumstances.