Timothy Paul Hopwood v R Martin Francis Byrnes v R Nos. SCCRM 93/312 and SCCRM 93/314 Judgment No. 4518 Number of Pages 48 Criminal Law and Procedure Companies Code (1994) 13 Acsr 219 - [1994] SASC 4518

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE(2), MOHR(3) AND BOLLEN(1) JJ

CWDS
Criminal law and procedure - Companies Code ss 229(4) and 564(1) - "Improper use of position as a director" - mental elements - Chew v The Queen (1991-1992) 173 CLR 626.

Furnish misleading information (2 counts) - sufficiency of evidence. Companies (South Australia) Code ss 229(4), 564(1) and (4). Chew v The Queen (1991-1992) 173 CLR 626 at 634, applied.

HRNG ADELAIDE, 17-18 November 1993 #DATE 21:4:1994

Counsel for appellant Hopwood: Mr K V Borick with
Mr G B Hevey

Solicitors for appellant Hopwood: Stephen Haarsma

Counsel for appellant Byrnes: Mr S W Tilmouth QC
with Mr S J Haarsma

Solicitors for appellant Byrnes: Hume Taylor and Co

Counsel for respondent: Mr D J Chapman

Solicitors for respondent: Director Of Public
Prosecutions (Cwlth)

ORDER
Appeals against conviction allowed as to counts 1 and 3 but rejected as to count 2.

JUDGE1 BOLLEN J These are appeals against conviction imposed in the District Criminal Court.

2. The trial started as a trial before a jury. During the trial two jurors were excused. The accused made "late" election to be tried by judge alone. The trial proceeded. The circumstances in which all this happened appear in the Ruling of Judge Lunn delivered on 4th May 1993, judgment number D2810.

3. It was a very long trial. It lasted a little over two months. The facts were complex. The learned trial Judge made, if I may say so, a masterly summary of the facts. It was necessarily a long summary. I incorporate into these reasons that summary. It is pages 1 - 62 of the reasons of the learned trial Judge. If any reader wishes to check what I have incorporated from the Appeal Books it is pages 70-131 of Volume One. The summary is:-

4. "The accused, Martin Francis Byrnes and Timothy Paul Hopwood, stand charged before this court on the following three counts:
    'Count 1: Improper use of position as a director to gain
    advantage. (Section 229(4) Companies (South Australia)
    Code)
    PARTICULARS OF OFFENCE MARTIN FRANCIS BYRNES and TIMOTHY
    PAUL HOPWOOD between about the 12th day of December, 1988
    and about the 1st day of February, 1989, at Adelaide in the
    said State, being directors of Magnacrete Limited,
    ("Magnacrete") made improper use of their positions as
    directors by (a) executing for Magnacrete a Shareholders
    Agreement and an Agreement to Guarantee relating to a joint
    venture between Magnacrete and Baron Fund Managers Limited;
    (b) executing for Magnacrete a Deed of Guarantee whereby
    Magnacrete guaranteed to the Commonwealth Bank of Australia,
    the repayment of a loan made by the said bank to Vicksburg
    Pty Ltd;
    (c) authorising the term deposit of $2,000,000 of the funds
    of Magnacrete with the Commonwealth Bank of Australia to
    support the guarantee referred to in paragraph (b) herein;
    to gain an advantage for Jeffcott Investments Ltd.'

5. The following particulars of this count were given:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Timothy Paul Hopwood v R Martin Francis Byrnes v R Nos. SCCRM 93/312 and SCCRM 93/314 Judgment No. 4518 Number of Pages 48 Criminal Law and Procedure Companies Code (1994) 13 Acsr 219 [1994] SASC 4518
Case: [1994] SASC 4518
Decision Date: 21 April 1994

CaseChat Overview and Summary

The appeals were against convictions for improper use of position as a director to gain advantage for a third party, and for furnishing misleading information to a third party. The appeals were allowed in part. The convictions for improper use of position were quashed and verdicts of acquittal were substituted. The conviction for furnishing misleading information was quashed and a verdict of acquittal was substituted. The court found that there was insufficient evidence to prove that the appellants had the requisite criminal intent for the offence of improper use of position as a director. The court also found that the information provided to the Stock Exchange did not constitute a misleading omission as required by the legislation, as the question asked was not clearly defined. The judges agreed with the reasoning and outcome of the majority decision.

Orders