Tringrove v Tasmania - [2014] TASCCA 7

[2014] TASCCA 7

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Tringrove v Tasmania [2014] TASCCA 7

PARTIES: TRINGROVE, Denis Ross
v

STATE OF TASMANIA
FAHEY, Robin Glen
v
STATE OF TASMANIA

FILE NOS: 1271/2013

6/2014

DELIVERED ON:  5 December 2014
DELIVERED AT:  Hobart
HEARING DATES:  14, 15 April, 25 August 2014
JUDGMENT OF:  Blow CJ, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Particular offences – Property offences – Other frauds and impositions – Fraudulently or deceptively obtaining money, valuable, financial benefit or advantage – Generally – Crown contending itemised invoices all wholly dishonest – Whether accused guilty if invoice partly dishonest.
Criminal Code (Tas), s 252A.

Machent v Quinn [1970] 2 All ER 255; R v Lindsay [1963] Qd R 386; Williams v The Queen (2002) 11 Tas R 258; R v Cook (2006) 95 SASR 201; R v Naidu [2008] QCA 130, referred to.
Aust Dig Criminal Law [2384]

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence – Other matters – Crown alleging more than it needed to prove or could prove – Misdirection as to what the Crown needed to prove – Possibility of different result without misdirection – Miscarriage of justice due to sentencing on erroneous basis.

Gipp v The Queen (1998) 194 CLR 106; Tran v The Queen (2000) 105 FCR 182, referred to.
Aust Dig Criminal Law [3477]

REPRESENTATION:

Counsel:
             Appellant Tringrove:  K Baumeler
             Appellant Fahey:  S C Chopping
             Respondent:  P Sherriff
Solicitors:
             Appellant Tringrove:  Butler McIntyre & Butler
             Appellant Fahey:      S C Chopping
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2014] TASCCA 7
Number of paragraphs: 102

Serial No 7/2014
File Nos 1271/2013
6/2014

DENIS ROSS TRINGROVE v STATE OF TASMANIA
ROBIN GLEN FAHEY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
PEARCE J
5 December 2014

Orders of the Court

Appeal 1271/2013 (Tringrove)

Appeal allowed.

Convictions on counts 1 to 32 inclusive quashed.

Sentence quashed.

New trial on counts 1 to 32 inclusive.

Appellant to be re-sentenced by Court of Criminal Appeal on counts 33 to 44 inclusive.

Appeal 6/2014 (Fahey)

Appeal allowed.

Convictions and sentence quashed.

New trial on all counts.

Serial No 7/2014
File Nos 1271/2013
6/2014

DENIS ROSS TRINGROVE v STATE OF TASMANIA
ROBIN GLEN FAHEY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
5 December 2014

There are two appeals before the Court. Each of the appellants, Denis Tringrove and Robin Fahey, are appealing against their convictions on 43 charges of dishonestly acquiring a financial advantage, contrary to s 252A of the Criminal Code, and a single charge of attempting to commit that crime.
Those convictions relate to a series of 44 payments made to Mr Tringrove by Huon Aquaculture Group Pty Ltd during a period from December 2006 to November 2008. That company carried on a fish farming business. It farmed fish in round pens at several sites in the lower reaches of the Huon River and in the D'Entrecasteaux Channel.
Throughout the relevant period Mr Fahey was the logistics manager of Huon Aquaculture. He was responsible, amongst other things, for engaging contractors to clean the pens. The cleaning entailed the removal of mussels, molluscs, barnacles and other such things, the growth of which could result in damage to nets, the entry of seals and other predators, and the escape of fish. In December 2006 Mr Fahey engaged Mr Tringrove to undertake the cleaning of the pens at an agreed fee of $1,500 per pen, plus GST. Mr Tringrove subsequently sent Huon Aquaculture 44 invoices, each claiming payment for the cleaning of a number of pens. Mr Fahey authorised payment in respect of each invoice. Altogether, Mr Tringrove charged $844,800 for cleaning 512 pens over a period of just under two years. Something went wrong in relation to the payment of the eleventh invoice. Although the company attempted to pay Mr Tringrove $19,800 in respect of that invoice by means of an electronic transfer of funds, the payment was never credited to his bank account, and was re-credited to the company's account. In respect of that payment, the two appellants were charged with attempting to commit the crime of dishonestly acquiring a financial advantage. In relation to each of the other invoices, the transfer of funds was successful, and both appellants were charged with dishonestly acquiring a financial advantage.
The two appellants were jointly charged, tried together, and both found guilty on every charge. The Crown contended at the trial that Mr Tringrove had not cleaned a single pen and that, from the start, there had been an arrangement for him to pay Mr Fahey part of the money that he received for work that he did not do. The Crown contended that Mr Fahey authorised the payment of the invoices knowing that Mr Tringrove had done none of the cleaning he was paid for. The evidence was, with one important exception, almost entirely circumstantial.

Unsafe and unsatisfactory

Each of the appellants has appealed in respect of every verdict, asserting that the verdicts were "unsafe and unsatisfactory" or "unsafe and unreasonable". The test ordinarily to be applied by an appellate court when considering whether a verdict is "unsafe or unsatisfactory" was explained by Mason CJ in Chidiac v The Queen (1991) 171 CLR 432 at 442–443 as follows:
"It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted ... In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused ...".
In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494–495:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 – 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 – 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 – 462)."
As Deane, Dawson, Toohey, Gaudron and McHugh JJ said in Doney v The Queen (1990) 171 CLR 207 at 211, "circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded".

The basis of the Crown case

As will be seen, the appellants' trial had some unusual features. The prosecutor set out to prove more than he needed to. The learned trial judge misdirected the jury as to what the Crown needed to prove, requiring it to acquit unless it was satisfied beyond reasonable doubt of more than the Crown really needed to prove. These appeals therefore involve complications that are not normally found in appeals when verdicts are challenged as unsafe or unsatisfactory.
Each count on the indictment referred to one invoice. Each of the 44 invoices related to the cleaning of a number of fish pens, between 8 and 13 pens. Each invoice showed that each pen had been cleaned on a different day. The learned trial judge directed the jury to the effect that, when considering a particular charge, it was required to acquit the appellants unless it was satisfied beyond reasonable doubt that Mr Tringrove had done none of the cleaning work itemised on the invoice to which the charge related. That was a misdirection. For the reasons stated below, all that the Crown needed to prove in relation to the amount of cleaning to which a particular invoice related was that Mr Tringrove had dishonestly charged for cleaning at least one pen that he had not cleaned.
It is well established that, on a charge of stealing a number of items, proof of theft of a single item is sufficient for the accused to be found guilty. Proof that the accused has stolen any of them is sufficient: Machent v Quinn [1970] 2 All ER 255; R v Lindsay [1963] Qd R 386 at 400–401; Williams v The Queen (2002) 11 Tas R 258; (2002) 133 A Crim R 317; R v Cook (2006) 95 SASR 201. In R v Naidu [2008] QCA 130 the Court of Appeal in Queensland applied the same principle to a charge of fraud. In that case the appellant, over a specified period, made several dispositions of property owned by a person with a mental incapacity. The appellant contended that the property was gifted to her, but the prosecution alleged that the dispositions were fraudulent. The court found the jury could properly convict if it were satisfied the owner's incapacity existed for only part of the period and that, as a result, only some of the transactions were fraudulent.
We see no reason why these authorities should not apply to a charge of dishonestly obtaining a financial advantage. Thus, in order to be satisfied beyond reasonable doubt that either of the appellants had dishonestly obtained a financial advantage in relation to a particular count, the jury did not need to be satisfied beyond reasonable doubt that Mr Tringrove had done none of the work to which it related. If the evidence proved beyond reasonable doubt that he had dishonestly charged for the cleaning of a single pen that he had not cleaned, then he would have dishonestly obtained a financial advantage as to that count. Similarly, in order for the jury to find Mr Fahey guilty on a particular count, it was necessary for the jury to be satisfied beyond reasonable doubt only that he was criminally responsible for the dishonest acquiring of a financial advantage in relation to at least one day's falsely claimed cleaning fee. But in order for the jury to return a verdict of not guilty in relation to a particular charge and a particular accused, it would have been necessary for the jury to conclude that the evidence fell short of proving beyond reasonable doubt that any item on the invoice was false.
However, the Crown case was not conducted on the basis just described. It was conducted on the basis that the Crown was required to prove beyond reasonable doubt that none of the cleaning referred to on any of the invoices had been performed, not that it was necessary only to prove beyond reasonable doubt that one or more of the pens had not been cleaned. Before closing addresses, an exchange occurred between counsel and the trial judge, in which counsel for Mr Tringrove raised the possibility that the jury might find some cleaning had been done, but not all. Counsel for the Crown informed the Court that:
"… I concur with my learned friend, that the jury might be in this difficult position of thinking well perhaps there were some but then they're going to have the problem of deciding which ones and I'm not going to ask them … to go down that path."
The learned trial judge asked counsel whether "the Crown's case is that every single invoice rendered by Mr Tringrove to Huon Aquaculture was false" and counsel replied, "That's right". The memorandum her Honour proposed to give to the jury was amended to reflect the exchange. In his closing address, counsel for the Crown said to the jury:
"All right, now, can I also say, at this early stage, that the Crown's case against both Mr Tringrove and Mr Fahey as well, is that, in every one of those cases, every one of those counts on the indictment, … it is the Crown's case that every one of those was – every one of those invoices for cleaning those fish pens was a forgery, a false invoice in other words. It's not a case of there being some cleaning done and then after a while getting a bit slack and then finally not really bothering to do it and just sending the invoices in; no, right from the beginning, right through to the end, right from the very first invoice back in count 1, right through to the last invoice in count 44, the Crown's case is that there was no cleaning done at all and I just want to make that very clear."
The way in which the Crown put its case was emphasised by counsel for both Mr Tringrove and Mr Fahey in their closing addresses. Then, in the course of summing up to the jury, the learned trial judge addressed the matter. She gave the jury a memorandum in which she directed:
"The deception on each occasion was that the accused Tringrove issued a tax invoice to the Company in which he represented that he had cleaned certain fish pens when both he and the accused Fahey knew he had not cleaned any of the pens identified in the cleaning invoices"
In the memorandum she also directed the jury that to convict either accused it must be satisfied beyond reasonable doubt that, amongst other things, each invoice was "entirely false". In the course of explaining to the jury the elements the Crown needed to prove on each count her Honour identified the deception alleged to have been carried out by Mr Tringrove as:
"… the preparation and submission of invoices for the cleaning of fish pens which he knew were false and that he had not cleaned any of the fish pens that he said he had. And you've had it emphasised to you, I think by everybody, that the deception relied on by the Crown is that none of the cleaning identified in any of the invoices that form the subject of each of the counts, none of the cleaning was ever done – so that's the basis of the Crown's case."
A little later, her Honour went on to say:
"So again, the State's case is based on your making a finding or your accepting beyond reasonable doubt that each of the invoices that are the subject of each of the forty four counts was false in its entirety, and the reason why that becomes very important in this case is that an element of the crime is that there was a deception; that is the deception identified. ...
Now something else I should point out to your there that because of the way the Crown has, I suppose nailed their colours to wall, and said to you that the basis of their case is that the invoices were entirely false is that in respect of any particular count, for example, if you come to the view that 'we think well he did some not others', it's not good enough, you have to be satisfied before you can convict in respect of any particular count that the accused Mr Tringrove did not clean any of the pens he said he did."
In light of those directions, it follows from the jury's verdict of guilt on every count for both appellants that the jury, unless it disregarded her Honour's directions, must have been satisfied beyond reasonable doubt that none of the cleaning on any of the invoices had been performed.

The effect of the basis of the Crown case on the determination of these appeals

It is clear that jury was misdirected as to what the Crown needed to prove in relation to each count. However that misdirection was not relied on by either appellant as a ground of appeal. In fact none of the counsel who argued the appeal drew our attention to the misdirection in their oral or written submissions. However the Crown's contention that no cleaning had been done, and the misdirection that the Crown bore the burden of proving, in relation to each count, that no cleaning had been done during the relevant period, are matters that we must take into account in considering the grounds of appeal relied upon by the appellants.
The basis of the Crown case is reflected in the terms of Mr Tringrove's single ground of appeal, namely that "the verdict of the jury was unsafe and unsatisfactory in that the jury ought to have entertained a reasonable doubt about whether the accused had done no cleaning at all, given the evidence led at trial" [our emphasis]. The ground of Mr Fahey's appeal is that the verdict was "unsafe and unreasonable" and the submissions in support of it make clear that it is the finding necessarily involved in the jury verdict that no cleaning at all was done that is challenged.
It is not easy to understand why, at trial, the Crown so confined its case. It made the Crown's task of proving the case against each appellant much more difficult. As we have already explained, but for the Crown's position, the jury could have found Mr Tringrove guilty on any count if it were satisfied that Mr Tringrove had not performed at least one item of cleaning on an invoice and dishonestly charged for it. The learned trial judge directed the jury in the terms that she did as a result of the manner in which the Crown's case was put. In the circumstances, it is necessary to consider three questions:
·     If the jury had been directed that it could properly convict if satisfied that an invoice contained charges for one or more pens that had not been cleaned, and had found both appellants guilty of all charges, should any of those verdicts have been set aside as unsafe and unsatisfactory, on the basis that the jury should have entertained a reasonable doubt as to guilt?
·     As to each of the jury's verdicts, has there been a miscarriage of justice in that it was not open to it to be satisfied beyond reasonable doubt that Mr Tringrove had done none of the cleaning itemised in the relevant invoice?
·     If, in relation to any verdict, it was not open to the jury to be satisfied beyond reasonable doubt that Mr Tringrove had done none of alleged cleaning, is it the case that there has been no substantial miscarriage of justice, and that the relevant conviction should therefore stand?

Evidence of a significant admission

As we have said, with one important exception, almost all of the evidence against both appellants was circumstantial. The exception is that there was controversial evidence of an admission made by Mr Tringrove. The chief executive officer of Huon Aquaculture, Mr Bender, and the general manager, Mr Wiese, both gave evidence that during a meeting at the offices of Huon Aquaculture on Friday, 19 December 2008, Mr Tringrove said to them that he had not been to the pens since Easter 2008 and offered to repay $100,000 for work he had not done. In 2008 Easter was in late March.

The police interview

Both appellants were interviewed by police officers. Audio-visual recordings of both interviews were tendered during the trial and played to the jury. In evaluating the strength of the evidence against each appellant, it is important to remember that any admission allegedly made by one of them, and each one's interview with the police, had to be disregarded when determining the verdicts in relation to the other. During the interviews neither appellant made any other admission of dishonesty.
Mr Tringrove told the police the following things. He performed the work alone. He used his own boat. He had two boats. One was a 15 foot aluminium Midnight Marine "tinny" with a 25hp Evinrude motor. That motor "packed it in". The other boat was a fibreglass boat. When he used the fibreglass boat he put rubber bollards down the side of it. He did not ever use boats provided by Huon Aquaculture. He used an old shovel to scrape material off the pens. He got a rake, cut the prongs off, and used that as well. He had a 5hp Honda fire-fighting pump, which he put a small nozzle on and used as a "pressure blaster". He wore wet weather trousers, gumboots, a wet weather jacket, and a life jacket. He lost a couple of gumboots in the course of his work. On a weekend he might get three or four pens cleaned in one day, depending on how bad they were and how much cleaning they needed. He could get six done in a weekend. Mr Fahey either phoned him or sent him a fax listing the pens to be cleaned. There were sometimes errors in the faxes concerning the numbers or locations of pens and changes were made. Much of the money he received was spent or gambled. He made large withdrawals for gambling.

At one point Mr Tringrove told the police that the dates on the invoices were the dates on which the pens were cleaned. However he later contradicted himself, saying that he sometimes cleaned two or three pens in a day; that he sometimes cleaned up to six in a weekend; and that there were occasions when he would clean pens that were not on the list he had been given, either in order to avoid bad weather or because he could not find the pens with the specified numbers. He was asked by the police about his conversation with Mr Bender and Mr Wiese. He said that they had said he had not been cleaning the pens and had asked him for $200,000. He said that they alleged he had not been down there for six months, and that he said he had not been to Hideaway Bay but that he had been to other sites. His version of the conversation was inconsistent with the evidence that he admitted not having done any cleaning work since Easter 2008 and offered to repay $100,000.
The information that Mr Tringrove gave the police about his work could reasonably have been relied upon by the jury as suggesting that he did at least some of the work that was itemised in his invoices.
On the basis of the information Mr Tringrove gave the police about his work and his capital equipment, it would have been reasonably open to the jury to conclude that a fixed fee of $1,500 per pen, plus GST, was out of all proportion to the reasonable value of his work, to such an extent that simply charging that much amounted to the dishonest acquisition of a financial advantage, even if he carried out all the work that was itemised in his invoices. At the trial, the Crown prosecutor neither mentioned nor abandoned any such argument. No such argument was commented upon by defence counsel or the learned trial judge. However it was open to the jury to treat Mr Tringrove's descriptions to the police of his work and his equipment as a series of admissions that tended to prove his guilt. That evidence was of course admissible only in relation to the charges against Mr Tringrove. It was not admissible against Mr Fahey, who made no similar admissions. There was other evidence, admissible against both appellants, that was relevant to the reasonableness or otherwise of the fixed fee. There was uncontroversial evidence that a previous contractor had undertaken the cleaning work charging the same fee of $1,500 per pen, excluding GST. That evidence could support an argument that it was reasonable for Mr Tringrove to charge the same amount. However there was also evidence from Mr Bender to the effect that, because of the cleaning work undertaken by that previous contractor, it had become easier to clean the pens.
Mr Fahey told the police the following things. His system for requesting cleaning was ad hoc. He attempted to keep track of the rotations for cleaning pens but sometimes made mistakes. He did not check whether the pens were cleaned or not. He borrowed three separate amounts of $5,000 from Mr Tringrove. He sometimes received cash from a charter vessel venture that he ran.

The circumstantial evidence

The principal pieces of circumstantial evidence relied upon by the Crown in relation to both appellants were as follows:
·     Fourteen employees of Huon Aquaculture gave evidence at the trial. Each said that he had never seen Mr Tringrove at work cleaning pens.
·     There was evidence that Mr Tringrove worked as a truck driver for a business named Price's Transport from 2002 until January 2009. Timesheets from the records of that business relating to Mr Tringrove and the truck he drove were tendered, but only for the period from 9 August 2007 onwards. Such records did not exist for the period prior to that date. The tendered records showed that Mr Tringrove was driving for Price's Transport in the Hobart area on days when, according to his invoices, he had been cleaning pens for Huon Aquaculture. The Crown contended that on many such days there was not time for him to do both. The records show him always ceasing work at Mornington in the Hobart area. There was other evidence that the distance from Mr Tringrove's home to the main farming base of Huon Aquaculture at Hideaway Bay was about 80 kilometres and the one way journey took between about 70 and 80 minutes.
·     The Crown relied on statements for credit card accounts maintained by Mr Tringrove and his wife, and on dockets relating to purchases made using those credit cards. Those documents afforded evidence of purchases at dates, times and places which, if the purchases were made by Mr Tringrove, were sometimes inconsistent with him working for Huon Aquaculture on dates specified in his invoices.
·     The police found at Mr Tringrove's residence a handwritten list of pen numbers and corresponding dates, corresponding to almost every invoice. Mr Fahey told the police that he prepared a list of dates and pen numbers and sometimes rang Mr Tringrove with the details, or sometimes faxed the list to him, prior to the first date shown on the invoice. The Crown relied on the fact that, in every case, the dates and pen numbers shown on the document were exactly the same as the dates and pen numbers shown on the subsequent invoice. The Crown relied on answers in Mr Tringrove's police interview which it said were inconsistent with the invoices. The Crown called evidence from a Mr Hales, who had operated the business that cleaned the pens from August 2005 until December 2006. Mr Hales' evidence was to the effect that he found out which pens he was required to clean by looking at numbers written on a board at the office of Huon Aquaculture. He would sometimes obtain a "week's worth" of pen numbers and work his way through the list but there were often occasions when cleaning could not be performed because of the weather, and instructions to clean different pens were sometimes conveyed to him by divers or others.
·     There was evidence that, after payment of the eleventh invoice failed to reach Mr Tringrove's bank account, he did not contact Huon Aquaculture about the outstanding invoice. The Crown contended that that tended to prove that the invoice related to work that had not been done.
·     On a number of occasions the same pen numbers were repeated, sometimes several times and over a short period. Although the numbers used were "fish identification numbers" relating to batches of fish, and batches were sometimes moved from one pen to another together with those numbers, the Crown contended that the recurring numbers suggested repeated unnecessary cleaning of pens, and tended to prove that the claimed work was not undertaken.
·     There was evidence that, although Mr Tringrove's invoices were routine invoices, they were not processed in the same way as routine invoices. Unlike other routine invoices, those submitted by Mr Tringrove went directly to Mr Fahey. Unlike other routine invoices, those submitted by Mr Tringrove were approved by Mr Fahey for prompt payment.
·     The bank statements of the two appellants showed that on three occasions, after receiving payment for the invoices to which counts 5, 7 and 42 related, funds were electronically transferred from Mr Tringrove's account to Mr Fahey's account. They also showed that on many occasions, very soon after receiving payments from Huon Aquaculture, Mr Tringrove made substantial cash withdrawals, and there were substantial cash deposits into Mr Fahey's account. According to a list compiled by counsel for Mr Fahey, there was evidence of 31 transactions, of which some were electronic transfers and most were cash deposits, by which a total of $176,624 was credited to Mr Fahey's account during the period in question.
·     Mr Fahey's bank statements for the period from 30 June 2006 to 13 December 2006 did not show the same pattern of deposits as appears in his statements for the period to which the indictment relates. This point was not mentioned to the jury, but the statements were tendered as an exhibit. The absence of any substantial deposits for that period of about 5½ months could reasonably be regarded as inconsistent with Mr Fahey's assertion to the police that he was receiving an income from the chartering of a vessel.
We consider that it was open to the jury to infer that the frequency of the cleaning charged for, taken with the time and distance involved with each instance of cleaning, tended to prove that not all the cleaning shown on each invoice had been done.

Counts 33-44 – Mr Tringrove's admission

We will first consider the case against Mr Tringrove. The success or otherwise of his appeal will, in some part, be determinative of Mr Fahey's appeal.
It was open to the jury to accept the evidence of Mr Bender and Mr Wiese that Mr Tringrove admitted to them on 19 December 2008 that he had not cleaned any pens since Easter that year. That period covered counts 33 to 44 on the indictment. The jury had the advantage of seeing and hearing Mr Bender and Mr Wiese give evidence of the admission. Taking that evidence in combination with the circumstantial evidence, it was open to the jury to be satisfied beyond reasonable doubt that Mr Tringrove had done none of the cleaning work shown on the invoices that covered that period. We could not conclude that the jury, acting reasonably, should have entertained a reasonable doubt as to Mr Tringrove's guilt on counts 33 to 44, based on those invoices: M v The Queen (above). Since the jury found Mr Tringrove guilty on all charges, we infer that it accepted the evidence of Mr Bender and Mr Wiese as to Mr Tringrove's admission. It would be fanciful to think that it might have convicted on all charges without having accepted that evidence.

Counts 20 and 21 – a trip to New South Wales

The circumstantial evidence against Mr Tringrove was at its strongest in relation to counts 20 and 21. From the timesheets of Price's Transport and the credit card records of Mr and Mrs Tringrove, it can be inferred that from Sunday, 23 September 2007, until at least Sunday, 7 October 2007, Mr Tringrove was on an interstate holiday. According to his invoices, he was cleaning pens for Huon Aquaculture nearly every day during that period.
The invoice to which count 20 relates shows that he cleaned pens for Huon Aquaculture on 12 days during the fortnight commencing 20 September and ending 3 October 2007. The invoice to which count 21 relates shows that he cleaned pens on 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18 and 19 October.
The timesheets of Price's Transport show that Mr Tringrove routinely drove a truck with the registered number FP3498 on weekdays up to and including Friday, 21 September 2007; that other drivers drove that truck every weekday for the next four weeks; and that Mr Tringrove resumed routinely driving it on Monday, 22 October.
The credit card records of Mr and Mrs Tringrove show purchases of fuel at service stations as follows.
·     On Sunday, 23 September, at 3.43pm on the Bass Highway at Wattle Hill, Latrobe. Mr Tringrove kept a docket in relation to this transaction with his signature on it.
·     At Wodonga in Victoria on Monday, 24 September, at either 11.14am or 11.33am. There are two dockets for this transaction, with inconsistent times.
·     In the Sydney suburb of Ryde on Monday, 24 September, at 7.24pm. Mr Tringrove's signature appears on the relevant docket.
·     On the Pacific Highway at Broadwater in New South Wales on Thursday, 27 September.
·     On the Pacific Highway at North Ballina in New South Wales on Monday, 1 October. Two icy poles were also purchased on that occasion.
·     At Kempsey in New South Wales on Tuesday, 2 October.
·     On Friday, 5 October, at 8.38am in Bulahdelah in New South Wales.
·     On the same day at 1.16pm at Mittagong in New South Wales.
·     On Sunday 7 October at 10.26am at Albury in New South Wales.
·     On the same day at 5.27pm in the Melbourne suburb of Preston.
·     Mrs Tringrove's credit card statement shows a purchase at Caltex Campbell Town in Tasmania in the sum of $61 on 14 October. No docket was tendered in relation to that transaction. It can be inferred that that was a purchase of fuel at Campbell Town.
Mrs Tringrove's credit card statement shows purchases in Melbourne and its suburbs on 8, 9 and 10 October.
Although the invoice to which count 20 relates covers work claimed to have been done during a period that ended on 3 October 2007, it is dated 17 October 2007, and was processed by Huon Aquaculture on that date. The previous invoice, relating to work said to have been done between 4 and 17 September, was dated 19 September. It can be inferred that Mr Tringrove did not render the invoice for the period ending 3 October until 17 October because he was away on holiday.
All of this evidence suggests very strongly that Mr Tringrove was guilty in relation to counts 20 and 21. However one could not rule out the possibility that he cleaned one or more pens during the first few days of the period to which count 20 relates, or the possibility that he cleaned one or more pens at the end of the period to which count 21 relates.

Counts 1–16 – no employment records available

The circumstantial evidence against Mr Tringrove is at its weakest on counts 1 to 16 inclusive. They concern the period between 14 October 2006 and 2 August 2007. For those counts, there is no evidence of the times or dates on which Mr Tringrove worked for Price's Transport apart from evidence from Mr Price that, throughout the time Mr Tringrove worked for Price's Transport, his work was relatively consistent. For each of those counts the Crown relied, as part of the circumstantial evidence, on credit card statements and dockets, showing transactions said to have been entered into by Mr Tringrove.
We will use count 6 as an example. Count 6 related to invoice 173 dated 4 March 2007. The invoice was for cleaning one pen on each of 16, 17, 18, 19, 22, 23, 24, 27, 28, 29 and 30 January 2007. Nine of those days were weekdays. Only two were on a weekend. The prosecutor neglected to ask any witness what days of the week Mr Tringrove used to work for Price's Transport, but the records for the period covered by counts 17 to 44 showed that he was working Monday to Friday. At $1,500 per pen, plus GST, the invoice was for the total of $18,150. It was received by Huon Aquaculture on 5 March 2007, and authorised for prompt payment by Mr Fahey on that day. The sum of $18,150 was credited to Mr Tringrove's account on 6 March 2007. Although the statement for that account shows a cash withdrawal of $7,200 on the following day, there is no evidence of the purpose of that withdrawal or any corresponding deposit into Mr Fahey's account. There is evidence of credit card transactions on 23, 24, 28 and 29 January 2007, including purchases of diesel at a service station in Bellerive at 10.35am and 11.36am on Wednesday, 24 January, and a mobile phone recharge at Australia Post in New Town on Sunday, 28 January at 1.55pm.
As to this count, the circumstantial evidence directed to it is capable of establishing that Mr Tringrove did not do some of the work shown on the invoice. However, the circumstantial evidence is not capable of excluding the reasonable possibility that Mr Tringrove did at least some of the cleaning for which he sent the invoice. In other words, notwithstanding the accumulation of detail relied on by the Crown, and considering the united force of all the circumstances put together, the evidence does not exclude the hypothesis that Mr Tringrove did some but not all of the cleaning he invoiced for. There is no admission relating to the relevant period. The scenario that Mr Tringrove cleaned at least some of the pens on days that he was not working for Price's Transport, or outside his hours of work with that business, is not farfetched or fanciful. There is nothing about the nature, place, date or time of the credit card transactions which is, even if Mr Tringrove was the person responsible for making them, necessarily inconsistent with him cleaning a fish pen on the day listed on the invoice. It is reasonably possible that on some occasions Mr Tringrove attended but was not seen by employees of the company. There was no physical evidence of the state of the fish pens which tended to prove whether they had been cleaned or not. There was no evidence of any complaint from any employee of the company which tended to prove a build-up of matter because of a failure to clean. Instances of multiple cleaning of pens are consistent with Mr Fahey's error rather than deliberate dishonesty. The content of his police interview is equally consistent with some, but not all, of the work being done.
These remarks apply equally to all of the other counts in this category. We have concluded that the evidence concerning counts 1 to 16 is not sufficient, in any case, to exclude the hypothesis that Mr Tringrove did some, but not all, of the cleaning he invoiced for. The evidence of withdrawals made by Mr Tringrove, payments made to Mr Fahey, and deposits to Mr Fahey's account, even if the payments were dishonest, is equally consistent with some, but not all, of the work having been done.
The fact that the dates on the handwritten lists of dates and pen numbers, and the dates and pen numbers on the invoices exactly correspond, notwithstanding the evidence about the changes of numbers and dates, is suspicious, but the evidence does not exclude explanations consistent with Mr Tringrove having cleaned some pens. It does not strongly indicate that none of the work was done.

Counts 17–19 and 22–44 – employment records available

Leaving aside Mr Tringrove's admission covering the period relevant to counts 33 to 44, for counts 17 to 44 inclusive, the circumstantial evidence against Mr Tringrove is strengthened by the employment records of Price's Transport. The Crown case is that, combined with the other circumstantial evidence, this evidence is inconsistent with Mr Tringrove having cleaned fish pens on the days subject to the respective invoices. The records detail the days and hours during which Mr Tringrove was engaged with that employment and, on the Crown case, he could not have cleaned the fish pens.
We will give some examples of counts concerning the period after Price's Transport employment records became available. Our first example is count 19. It concerns an invoice dated 19 September 2007 for $19,800. The invoice is for cleaning of pens on 4, 5, 6, 7, 9, 10, 11, 12, 13, 15, 16 and 17 September 2007. It was received by Huon Aquaculture from Mr Tringrove on 20 September 2007. Prompt payment was authorised by Mr Fahey on the same day. The amount of $19,800 was deposited into Mr Tringrove's account on 21 September 2007, and on that day a withdrawal of $9,000 was made from Mr Tringrove's account. There was a cash deposit of $4,000 into Mr Fahey's account on 24 September 2007. The Price's Transport employment records disclose Mr Tringrove working for that company on 5 September 2007 between 7am and 2.30pm, on 6 September 2007 between 7am and 2pm, on 7 September 2007 between 7am and 10.30am, on 10 September 2007 between 7am and 2.30pm, on 12 September 2007 between 7am and 1pm, on 13 September 2007 between 7am and 4.30pm, and on 17 September 2007 between 7am and 4.30pm. The evidence includes a record of Mr Tringrove having worked for Price's Transport on 14 September 2007 between 7am and 5.30pm, but the invoice includes no claim for cleaning fish pens on that day. The Crown evidence includes credit card dockets evidencing payments to BP Lindisfarne on 5 September 2007 at 1.37pm, Co-op Toyota in Hobart on 10 September 2007 at 3.15pm, Woolworths Sorell on 11 September 2007 at 8.38am, Enzed in Hobart on 7 September 2007 at 3.18pm, 13 September 2007 at 11.44am, Caltex Bellerive on 14 September 2007 at 7.44am, and Caltex Eastlands on 17 September 2007 at 4.31pm.
Another example is count 26. It concerns an invoice dated 15 January 2008 for $16,500. The invoice is for cleaning of pens on 27, 28, 29 and 30 December 2007 and 2, 3, 4, 6, 7 and 8 January 2008. It was received by Huon Aquaculture from Mr Tringrove on 17 January 2008. The amount of $16,500 was deposited into Mr Tringrove's account on 21 January 2008. On 22 January 2008 a cash withdrawal of $7,500 was made from that account. On 22 January 2008 a cash deposit of $4,000 was made into Mr Fahey's account. The Price's Transport employment records disclose Mr Tringrove worked for that company on 7 January 2008 between 7am and 12 noon, and on 8 January 2008 between 7am and 12 noon. The records also show him working for Price's Transport and making a credit card purchase on 9 January but the invoice includes no claim for cleaning on that day.

For completeness we refer also to two examples occurring during the period covered by Mr Tringrove's admission. Count 36 concerns an invoice dated 1 June 2008 for $19,800. It was received by Huon Aquaculture on 2 June 2008, paid on 3 June 2008, and credited to Mr Tringrove's account on 4 June 2008. Mr Tringrove made a cash withdrawal of $6,500 on 5 June 2008. No deposit into Mr Fahey's account is relied on. The invoice is for cleaning of fish pens on 11, 12, 13, 14, 16, 17, 18, 20, 21, 22, 23 and 25 May 2008. The Price's Transport employment records record Mr Tringrove having worked for that company on 12 May 2008 between 7am and 1pm, 14 May 2008 between 7am and 3pm, 16 May 2008 between 7am and 4pm, 20 May 2008 between 7am and 11am, 21 May 2008 between 7am and 1.30pm, 22 May 2008 between 7am and 2.30pm, 23 May 2008 between 7am and 2.30pm. There is evidence also of Mr Tringrove having worked for Price's Transport on 15 May 2008, 19 May 2008 and 26 May 2008, but the invoice does not claim for cleaning fish pens on any of those days. The Crown also produced credit card and other dockets evidencing transactions in or near Hobart on 12 May 2008 at 11.01am, 13 May 2008 at 12.08pm, 21 May 2008 at 3.12pm, 22 May 2008 at 10.39am and 23 May 2008 at 7.05am.
Count 43 is another example. It concerns an invoice dated 16 October 2008 for $19,800. It was received by Huon Aquaculture 20 October 2008 and paid on 22 October 2008. The Crown relies on no withdrawal or deposit following payment of the invoice. The invoice is for cleaning of fish pens on 5, 6, 7, 10, 11, 14, 15, 17, 18, 20, 21, and 24 September 2008. The Price's Transport employment records record Mr Tringrove having worked for that company on 5 September 2008 between 7am and 11.30am, 15 September 2008 between 7am and 10am, 17 September 2008 between 7am and 2pm, 18 September 2008 between 7am and 10.30am, and 24 September 2008 between 7am and 12.30pm. There is evidence also of Mr Tringrove having worked for Price's Transport on 19 September 2008, 22 September 2008, and 23 September 2008, but the invoice does not claim for cleaning fish pens on any of those days. The Crown also produced credit card dockets evidencing purchases on 17 September 2008 from Woolworths Sorell at 7.26am, 19 September 2008 from Woolworths Sorell at 10.05am, and 24 September 2008 from Caltex Bellerive at 7.17am.
We would characterise this evidence in the following way. It strongly suggests Mr Tringrove's guilt in relation to some of the days subject to the invoices. For example, the invoice dated 19 September 2007 shows Mr Tringrove having cleaned a fish pen on 13 September 2007. On that day there is evidence of him having worked for Price's Transport between 7am and 4.30pm. The same applies to 17 September 2007. The invoice dated 1 June 2008 shows Mr Tringrove having cleaned a fish pen on each of 14 May and 16 May 2008 when the employment records show him having worked until 3pm and 4pm respectively on those days. The invoice dated 16 October 2008 shows Mr Tringrove having cleaned a fish pen on 17 September 2008. The employment records show him having worked for Price's Transport between 7am and 2pm on that day. There are many similar instances on other invoices. The jury was entitled to conclude that, given the time of year and the time it must have taken to travel to the fish pens and launch his boat, it was impossible for Mr Tringrove to have performed cleaning work on those days.
However, the invoices show numerous examples of cleaning work having been done on days that Mr Tringrove was not either employed by Price's Transport, or engaged at Price's Transport for times which would have allowed sufficient opportunity for him to travel to perform cleaning work before sunset. Few, if any, of the credit card receipts and dockets relied on by the Crown are inconsistent with Mr Tringrove doing the cleaning work. Those documents do not strongly suggest he did none of the work.
The same general remarks concerning the other circumstantial evidence apply to this category of evidence – even allowing for the accumulation of detail relied on by the Crown and the united force of all the circumstances together, the evidence does not exclude the hypothesis that some of the cleaning work was done. It was not open to the jury to be satisfied beyond reasonable doubt that Mr Tringrove had done none of the cleaning billed on any of the invoices.

Use of a finding of guilt on one count as circumstantial evidence on other counts?

It was appropriate for the State to charge the appellants with more than one crime in the same indictment because the charges formed part of a series of crimes of the same or similar character: the Code, s 311(2). However, the fact of multiple counts in the same indictment invites consideration of what, if any, use could be made by the jury of evidence of the guilt of an accused on one charge in considering the other counts in the indictment: R v Schlaefer (1984) 37 SASR 207; (1984) 12 A Crim R 345. If evidence of guilt of one offence is not admissible as proof of his guilt of another offence, then a risk of impermissible prejudice to an accused arises, and clear directions to a jury are required to guard against that risk: Sutton v The Queen (1984) 152 CLR 528. In this case, the issue goes further. Consideration is required of what, if any, use could be made by the jury of evidence that one instance of cleaning on one invoice was not done, when considering whether all instances of cleaning charged on that invoice had been done. Her Honour gave an appropriate direction to the jury that each count on the indictment had to be considered separately.
There is authority at common law to the effect that, in cases involving multiple counts of fraud or dishonesty, the evidence on each count is admissible on the others for the purpose of proving guilty knowledge of a dishonest scheme or system. Those authorities are now to be considered as subject to the Evidence Act 2001. Part 6 of the Act deals with tendency and coincidence evidence. Under s 98(1), evidence that two or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind, if a required notice is not given. In this case no notice was given.
Thus, there was no basis on which evidence directed to only one count, or the jury's satisfaction of guilt on that count, could be used by the jury as evidence on any other count. Further, in the circumstances of this case, the jury was not entitled to use evidence that one pen had not been cleaned as evidence that any other pen had not been cleaned. However the jury was directed in a different way. Her Honour directed the jury that:
"… clearly the State's case … is that there was a pattern over this whole roughly two year period. But before you can actually use evidence relating to one count; that is the documents and the like relating to one count when considering another count you have to be satisfied beyond reasonable doubt firstly, that that first count is proved. Example, if you accept in respect of count 1 that the accused committed the deception the State says he did, that when he did he was acting dishonestly, that he intended by the deception to acquire the financial advantage and he did so – so if you're satisfied beyond reasonable doubt as to that on count 1 you would find him guilty of that then you can use that evidence to assist you when considering other counts on the indictment. It can't replace the evidence on the other indictment, it's just another factor you can consider …".
In the absence of notice under s 98(1) of the Evidence Act there was no proper basis for such a direction. The jury was not entitled to use evidence of a related act to prove Mr Tringrove's guilty mind on another count.

Miscarriage of justice and application of the proviso – Mr Tringrove

If the jury had been directed that, in relation to each count, the Crown needed only to prove that Mr Tringrove had dishonestly charged for the cleaning of at least one pen, and if the jury had then found him guilty of all charges, an appeal on the "unsafe and unsatisfactory" ground could not have succeeded. That is to say, we do not consider that, if properly directed, the jury should have had a reasonable doubt as to Mr Tringrove's guilt on any charge. It was reasonably open to the jury to accept the evidence of his admission to Mr Bender and Mr Wiese, and to convict him on counts 33 to 44 on that basis. It was reasonably open to the jury, particularly because of the records of Price's Transport, to find him guilty in respect of counts 17 to 44 inclusive. It was reasonably open to the jury on the basis of the circumstantial evidence, particularly the bank records and the invoices charging for cleaning pens on weekdays, to conclude that he was guilty in relation to counts 1 to 16 inclusive. But, because the jury was erroneously directed that the Crown needed to prove in relation to each count that no cleaning had been done, that is not the end of the matter. If, as we must assume, the jury complied with the erroneous direction, it made findings of fact that were not reasonably open to it against Mr Tringrove in relation to counts 1 to 32 inclusive.
Counsel for the appellants submitted that they would have conducted their clients' cases differently if the Crown, instead of attempting to convince the jury that no cleaning had been done, had proceeded on the basis that it needed to prove, in relation to each count, only that some of the invoiced cleaning had not been done. However, there is little to suggest that the evidence led at trial would have been different had the Crown conducted its case differently. We cannot envisage any question that would have been asked in cross-examination but was not, nor any question that would not have been asked or would have been asked differently, if the jury was considering whether some of the work was not done. The Crown's position on the issue the jury was to determine was not made clear until after all the evidence had been given. However, it is submitted on behalf of both appellants that they would have addressed the jury in a different way had the Crown case been put differently. There is merit in that submission. Had the question been whether some of the cleaning had not been performed, rather than whether none of it had been performed, each counsel would very likely have considered it necessary to address, in a much more detailed way, each item on each invoice, and to argue that the jury could not be satisfied that each instance of cleaning had not been performed. As it was, the addresses were directed to whether the jury could be satisfied that no work at all had been performed.
In relation to counts 1 to 32 inclusive, we cannot exclude the possibility that, had the jury been addressed by counsel for Mr Tringrove on the basis that the Crown had to prove that only some of the cleaning had not been done, then the type of detailed address required to address that case had a chance of leading to an acquittal on one or more counts. It follows that there has been a miscarriage of justice.
There is another reason that there has been a miscarriage of justice. Because of the manner in which the jury was directed, Mr Tringrove must have been sentenced on the basis that he had done no cleaning at all in return for the $825,000 that the company paid. Her Honour's sentencing remarks confirm that this is so. This is not an appeal against sentence. It is an appeal only against conviction. But, in considering whether to apply the proviso and dismiss the appeal on the basis that no miscarriage of justice has occurred, it is important to remember that Mr Tringrove has been sentenced on a factual basis that we are satisfied was not reasonably open to the jury. If the jury had been properly directed and had found Mr Tringrove guilty on any or all of counts 1 to 32 inclusive, it would have been necessary for the learned trial judge to have made findings of fact for sentencing purposes as to the extent of the dishonestly acquired financial advantages. The onus would have been on the Crown to prove beyond reasonable doubt, in relation to each count, how many of the pens referred to in the invoice had not been cleaned: R v Olbrich (1999) 199 CLR 270.
Because the prosecutor set out to prove more than he had to, and because of the misdirection of the jury as to what the Crown needed to prove, this is not a routine "unsafe and unsatisfactory" appeal. As Gaudron J pointed out in Gipp v The Queen (1998) 194 CLR 106 at [17], "The expression 'unsafe and unsatisfactory' has no very precise meaning." It cannot be said in this case that any of the verdicts were unsafe and unsatisfactory in the sense that the jury, if properly instructed, ought to have entertained a reasonable doubt as to guilt. But it has been established that the verdicts relating to Mr Tringrove on counts 1 to 32 inclusive were unsafe and unsatisfactory in a different sense. That was the situation in Tran v The Queen (2000) 104 FCR 182. That was an appeal against a murder conviction in the Australian Capital Territory. The prosecutor in that case had asserted facts in his opening address which were not the subject of evidence and were not corrected in his final speech. The Full Court of the Federal Court quashed the convictions as "unsafe and unsatisfactory", not on the basis that the jury ought to have entertained a reasonable doubt as to guilt, but on the basis that the conduct of the prosecutor had led to a miscarriage of justice.
Section 402(2) of the Code, which is commonly referred to as "the proviso", reads as follows:
"(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
Because, but for the misdirection, the jury might have reached a different result on some or all of counts 1 to 32, and because Mr Tringrove has been sentenced on an erroneous factual basis, it would not be appropriate to apply s 402(2) so as to allow any of the convictions on counts 1 to 32 to stand.
If counsel for either appellant had understood that the Crown did not need to prove in relation to each count that no cleaning had been done, and had then taken a tactical decision not to correct the prosecutor or the trial judge about that point, then that conduct might have weighed strongly against allowing these appeals. However we have no reason to think that counsel for either appellant took any such unprofessional tactical decision. Their failure to correct others should therefore be attributed to inadvertence.

Disposition of Mr Tringrove's appeal

For the foregoing reasons we have concluded that Mr Tringrove's appeal must succeed in relation to counts 1 to 32 inclusive, but must fail in relation to counts 33 to 44 inclusive. We have therefore decided to order that his appeal be allowed; and that his convictions on counts 1 to 32 inclusive and the sentencing orders of the learned trial judge be quashed.
That brings us to the question whether we should make an order for a new trial of Mr Tringrove on counts 1 to 32 inclusive. There is authority that, when an appeal against conviction succeeds, the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes (1948) 77 CLR 511 at 518; King v The Queen (1986) 161 CLR 423 at 433; Jiminez v The Queen (1992) 173 CLR 572; Parker v The Queen (1997) 186 CLR 494; R v Taufahema (2007) 228 CLR 232.In our view those authorities should be distinguished from this case. If there is a new trial of Mr Tringrove on counts 1 to 32, at which the Crown does not seek to prove that he did no cleaning at all, but seeks only to prove that he dishonestly acquired a financial advantage by submitting a series of invoices charging for work that, at least in part, was not done, then the Crown would not be asserting a new or radically different basis of criminal liability, and there could be no unfairness to Mr Tringrove. We have therefore decided that in his case there must be an order for a new trial on counts 1 to 32 inclusive. That of course is subject to the usual prosecutorial discretions.
Under s 403(1) of the Code, this Court has the power to quash Mr Tringrove's sentence and pass a substituted sentence in relation to counts 33 to 44 inclusive. This Court also has the power, under s 403(3A), to refer the case to the trial judge, who would then have the power to pass a substituted sentence in relation to those counts. However there is nothing in the Code that empowers us to refer the case to another single judge for re-sentencing on those counts. In the circumstances, we think it more appropriate that the re-sentencing on those counts should be undertaken by this Court. We will hear counsel as to the re-sentencing at an appropriate time.

Mr Fahey's appeal

We have concluded that the jury verdicts concerning Mr Fahey cannot be allowed to stand. The situation in relation to all of his 44 convictions is the same as the situation in relation to Mr Tringrove's convictions on counts 1 to 32 inclusive. If the jury had been properly directed, and had found him guilty on all 44 counts, an appeal on the "unsafe and unsatisfactory" ground could not have succeeded. The circumstantial evidence was so strong that one could not reasonably have concluded that the jury ought to have entertained a reasonable doubt. But the jury was directed that it needed to be satisfied in relation to each count that none of the invoiced cleaning had been done, and the evidence was not strong enough for that to be a reasonable conclusion in relation to any count. Mr Fahey's appeal must therefore succeed. It is not appropriate to apply the proviso because, but for the misdirection as to what the Crown needed to prove, Mr Fahey's counsel might have addressed differently, with different results, and because, in relation to each charge, he has been sentenced on the erroneous factual basis that it has been proved that none of the invoiced cleaning was done. The only appropriate orders are orders that Mr Fahey's appeal be allowed, that his convictions and sentence be quashed, and that there be a new trial on all counts.
File Nos 1022/2012
6/2014

DENIS ROSS TRINGROVE v STATE OF TASMANIA
ROBIN GLEN FAHEY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
5 December 2014

I agree with the conclusion reached by Blow CJ and Pearce J that the Mr Tringrove's appeal must succeed in relation to counts 1 to 32 inclusive, but must fail in relation to counts 33 to 44 inclusive. I agree that the jury verdicts concerning Mr Fahey cannot be allowed to stand. I agree with the orders that have been proposed.
I am grateful for the thorough analysis undertaken by Blow CJ and Pearce J of the evidence presented at trial with respect to the 44 counts and agree with it and the conclusions reached with respect to whether the evidence was sufficient to exclude the hypothesis that some of the cleaning work had been done.
I take a different view from Blow CJ and Pearce J in relation to some matters but I record my agreement with the joint judgment as to the elements of the crime of dishonestly acquiring a financial advantage and what the Crown needed to prove in relation to each count.
I make observations with regard to the appellants' position that the Crown bound itself to an "all or nothing" case. I agree that the proviso should not be applied, although for a conceptually different reason and I also conclude that a retrial may result for both appellants.
A key point of divergence with the judgment of their Honours is that, in my view, the Crown made a concession which committed it to a position at trial, although not to the extent asserted in the notice of appeal. The Crown's concession has implications for the operation of the proviso in the Criminal Code, s 402(2), because, in my view, the Crown is committed to that position for the purpose of the appeal; and in the circumstances of this trial, there should be no room for the operation of the proviso. I agree that fairness to an accused is a consideration, but as a manifestation of the principle that the parties are bound on appeal to the issues forged at trial.

I give consideration to the issue of the use of evidence regarding one count as circumstantial evidence on other counts, as it explains how the jury may have been diverted from its task and the risk that the jury may have engaged in impermissible reasoning.

Threshold question arising from the appellants' ground of appeal

The central plank of the appellants' ground of appeal that the verdict of the jury was unsafe and unsatisfactory is that the jury ought to have entertained a reasonable doubt about whether the appellants had done no cleaning at all. This leads to an analysis of the basis of the Crown case presented against Mr Tringrove and Mr Fahey at trial. The appellants' position is that the Crown bound itself to an "all or nothing" case, so that for Mr Tringrove or Mr Fahey to be found guilty of any particular count, the Crown had to prove beyond reasonable doubt that none of the cleaning was done on any occasion, across all 44 invoices.In other words, if the jury could not have excluded the hypothesis that one instance of cleaning had been done with respect to one invoice, the appeal should succeed on all counts.
A threshold question for consideration before this Court is whether this is the correct framing of the jury's task and, following on from this, whether this is the premise from which these appeals should be determined. I turn to the first aspect of this question: do the appellants correctly identify the only pathway to guilt that was open to the jury in this case? It is my view that that the appellants do not do so. It is necessary to consider how the Crown conducted its case, particularly in the final stages of the trial. It is my conclusion that the appellants' contention merely reflects the Crown's ambitious assertions of what it hoped would be proved, ie the Crown contention, in the nature of its "case concept". I do not consider that the Crown case was so confined on liability. As I will demonstrate, I conclude that the Crown did confine itself, but not to the extent submitted.

The Crown case at trial

In considering the Crown position at trial, I note that, in closing, Crown counsel stated to the jury that it was the Crown's case that every one of the invoices was false and that none of the cleaning was done. Before closing addresses, in an exchange with the learned trial judge, Crown counsel informed her Honour that he would not be asking the jury to "go down that path" of deciding whether it was possible that some cleaning had been done. These passages have been set out in the judgment of Blow CJ and Pearce J.
Additionally, there was an exchange between her Honour and Crown counsel which occurred almost immediately following the indication that he would not be asking the jury to decide whether it was possible that some cleaning had been done. Her Honour asked Crown counsel whether "the Crown's case is that every single invoice rendered by Mr Tringrove to Huon Aquaculture was false" and counsel replied, "That's right". What was then said has particular significance. Her Honour reiterated her understanding of the Crown's position: "So, to convict, the jury would have to be satisfied, in respect of any particular count, each and every count or any count, that Mr Tringrove did none of the cleaning he invoiced for?" Crown Counsel replied, "That's right".
The draft memorandum to the jury was amended to reflect the exchange. It provided: "To convict the accused Tringrove of counts 1 to 10 and 12 to 44 on the indictment, you the jury must be satisfied beyond reasonable doubt in respect of any particular count that: ... the accused Tringrove rendered an invoice for the cleaning of fish pens to the Company which he knew to be entirely false". In relation to Mr Fahey, the particulars provided that he "authorized payment of the invoice knowing the claim for work done by it was entirely false". A requirement to the same effect was spelt out in relation to count 11.
The trial judge gave the jury the memorandum in these terms. No objection was taken by counsel. She also gave the jury an oral direction which reiterated the passage in the memorandum set out above:
"Now something else I should point out to your there that because of the way the Crown has, I suppose nailed their colours to wall, and said to you that the basis of their case is that the invoices were entirely false is that in respect of any particular count, for example, if you come to the view that 'we think well he did some not others', it's not good enough, you have to be satisfied before you can convict in respect of any particular count that the accused Mr Tringrove did not claim any of the pens he said he did."
Then, in the course of summing-up to the jury, the learned trial judge identified the Crown case: "The deception on each occasion was that the accused Tringrove issued a tax invoice to the Company in which he represented that he had cleaned certain fish pens when both he and the accused Fahey knew he had not cleaned any of the pens identified in the cleaning invoices."
As noted, the appellants' submission is that at trial, the Crown bound itself to an "all or nothing" case, so that for the appellants to be found guilty of any particular count, the Crown had to prove beyond reasonable doubt that none of the cleaning was done on any occasion. It must be said that if that was the Crown's position then it would have been an extraordinary stance. The Crown's case would have been a house of cards which would necessarily have collapsed if the jury was not satisfied beyond reasonable doubt of the falsity of any one instance of cleaning work claimed. Such a position would also seem at odds with the indictment and the framing of 43 counts, rather than one count of dishonestly acquiring a financial advantage covering the entire period.
The course the issue took at trial does not support the appellants' submission; the stance taken by Crown counsel was not to the extent submitted. While it is clear that the contention of a complete scam across all invoices was heavily relied upon by Crown counsel in closing, and was the way the Crown pitched its case against the appellants, the Crown did not go so far as to limit the basis upon which the jury might convict to such a finding. The Crown's position was explained and refined in the subsequent exchange with the trial judge set out above at [75]. It is evident that the concession as to liability made by the Crown, which had the effect of confining the Crown's case, was on an "invoice by invoice" basis. For Mr Tringrove or Mr Fahey to be found guilty of any particular count, the Crown had to prove beyond reasonable doubt that, in relation to that invoice only, none of the cleaning was done on any occasion identified in that invoice.
It is evident that the direction given by the trial judge reflected the extent of the concession made by Crown counsel. Notably, the trial judge did not direct the jury in terms of an "all or nothing" case as a prerequisite to liability. It is worth noting, too, that in the course of closing addresses defence counsel answered the Crown's contention of a complete scam across all invoices, along with other contentions, but there is nothing which suggests defence counsel regarded the Crown as bound to that position with the consequence that, if the complete scam was not proved, that would be fatal to the Crown case. It is my conclusion that the appeals are based on an erroneous premise that the Crown confined itself to an "all or nothing" case across all of the counts.

An adversarial process

Having formed this view on the extent of the Crown's concession at trial, there remains an issue of whether the appeal ought to be considered within the parameters of the Crown's concession and the trial judge's direction, or allowing for the pathway otherwise open to the jury, if not for the concession: that the jury was entitled to convict upon each count if satisfied beyond reasonable doubt that some or any of the cleaning identified in the invoice in question had not been performed.
This question brings into focus the adversarial nature of the trial process. The issues at trial are defined by the parties, and the issues on appeal are in turn cast by the trial. In R v Taufahema (2007) 228 CLR 232, the High Court considered the ramifications of the issues as defined by the parties at trial in relation to whether a new trial should be ordered. The Crown had confined its case at trial in relation to joint criminal enterprise, and the accused was convicted. The Court of Criminal Appeal quashed the conviction on the basis that the enterprise asserted by the Crown was not a crime known to law and entered a verdict of acquittal. During the hearing of the application for special leave to appeal from the judgment of the Court of Criminal Appeal, the Crown, for the first time, adopted a different characterisation of the joint enterprise which did not attract the same difficulty. The question was whether, given the availability of that new allegation of joint enterprise, the Court of Criminal Appeal had erred in failing to order a new trial. This question was decided with reference to well-settled principles regarding the discretion to order a new trial. The dissenting judgment of Gleeson CJ and Callinan J, at [37], referred to features of the adversarial procedure of criminal justice which are uncontentious (see also Crampton v The Queen (2000) 206 CLR 161, per Gleeson CJ at [15]-[20]):
"The considerations identified in Crampton v The Queen as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also. In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned. The general rule that litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence."
This appeal is also concerned with the Crown having confined its case on liability. It was a hurdle which the Crown need not have placed in the jury's path to guilt. There may be any number of reasons why the Crown in this trial made a decision to confine its case on liability. It may have been a tactical decision to keep it simple for the jury, or to limit the factual matters in dispute. Fundamentally though, if the Crown chooses to confine its case in that way, that is the case that the defence should have to meet. Otherwise, issues not pursued or disavowed by the Crown at trial would have to be met in evidence and closing addresses by defence counsel, because the issues could loom on appeal. Trials would become protracted and costly (see L'Heureux-Dubé J in R v Brown [1993] 2 SCR 918 at 923-924 and "the overarching societal interest in the finality of litigation in criminal matters" referred to with approval in Crampton at [15]). As stated in Taufahema, the role of the trial judge is to direct the jury according to the issues as defined by the parties. Of course, there is a real difference between an ambitious statement of what the Crown hopes to prove and the conduct of the case by Crown counsel which commits the Crown to a position on liability. Here, the Crown contention of a complete scam across all counts did not exclude a partial scam as an issue for the jury. By contrast, the concession by the Crown as to each count and the Crown's assent to the direction by the trial judge was a clear instance of the parties (the Crown) defining the issues.

Conclusion applying the premise

For these reasons, consideration of the appeals ought to take account of the issues defined by the parties at the trial. The starting premise is the "invoice by invoice" case, so that different verdicts across the counts were open to the jury and the direction that, in order to convict in relation to any particular count, the jury had to be satisfied beyond reasonable doubt that none of the cleaning work had been done and that the appellants knew the invoice in question to be entirely false. It follows from the jury's verdict of guilty, on this trial, and the direction that was given, that on every count for both appellants, the jury must have been satisfied beyond reasonable doubt that none of the cleaning on each of the invoices had been performed.
The question which arises from this premise is whether, considering each count individually, the evidence excludes the hypothesis that some of the cleaning work claimed on that particular invoice had been done. If the jury should have entertained a reasonable doubt about whether Mr Tringrove dishonestly charged for any one instance of cleaning on any one of the invoices, then, on the basis of the issues at trial and the direction by the learned trial judge, the jury's verdict of guilty on that count for both appellants should be set aside. The result of that consideration will, if it is in favour of Mr Tringrove, also determine Mr Fahey's appeal. An essential prerequisite to a finding of guilt against each appellant in relation to each particular count was a factual finding by the jury that all cleaning work was not performed.
As I have indicated, I am in agreement with their Honours' analysis of the evidence and the conclusions reached with respect to each count as to whether it was open to the jury to be satisfied beyond reasonable doubt that none of the cleaning work had been done, and to exclude the hypothesis that some cleaning work had been done. It is my reasoning that given the premise upon which I consider these appeals, and which provided the framework for the jury's consideration, the jury should have entertained a reasonable doubt with respect to counts 1 to 32 inclusive in relation to Mr Tringrove, and all counts in relation to Mr Fahey. Their Honours' analysis of the remaining evidence on counts 33 to 44 at [42]-[49] of the joint judgment demonstrates that, absent the admission, it was not reasonably open to the jury to convict Mr Fahey on these counts. I find, therefore, that the jury's verdicts on counts 1 to 32 in relation to Mr Tringrove, and all counts in relation to Mr Fahey, were unsafe and unsatisfactory.

Use of finding of guilt on one count as circumstantial evidence on other counts

Having agreed with the conclusion reached as to the evidence, count by count, I turn to consider a direction given by the learned trial judge. Her Honour directed the jury that they may use a finding of guilt in relation to one count to assist them in considering other counts, as follows:
"… clearly the State's case … is that there was a pattern over this whole roughly two year period. But before you can actually use evidence relating to one count; that is the documents and the like relating to one count when considering another count you have to be satisfied beyond reasonable doubt firstly, that that first count is proved. Example, if you accept in resect of count 1 that the accused committed the deception the State says he did, that when he did he was acting dishonestly, that he intended by the deception to acquire the financial advantage and he did so – so if you're satisfied beyond reasonable doubt as to that on count 1 you would find him guilty of that then you can use that evidence to assist you when considering other counts on the indictment. It can't replace the evidence on the other indictment, it's just another factor you can consider …".
It can be seen that the direction is in general terms; it does not specifically address any aspect of the evidence. Because there is no question that evidence of guilt (being a finding that cleaning was not done) on one count could not be taken into account by the jury on other counts in determining whether cleaning was performed, my conclusion with regard to the appeal ground above at [87] stands.
I will nevertheless briefly consider the direction, whether there was some proper basis for it, and, if there was, whether directions should have been given to the jury to guard against the risk of prejudice to the appellants. The absence of a direction regarding the use of evidence to avoid the jury being misled or engaging in impermissible reasoning has the potential to give rise to a miscarriage of justice falling within the ground of appeal that verdicts are "unsafe and unsatisfactory". The appeal ground is wide and extends to some failure to observe the conditions essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that the jury may have been mistaken or misled: Davies v The King (1937) 57 CLR 170 at 180; Chidiac v The Queen (1991) 171 CLR 432 per Mason CJ at 444; M v The Queen (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 492-495. Another reason for giving some attention to the direction is to consider if the jury may have engaged in impermissible reasoning, which bears on the perplexing question in this case of how the jury may have reached the verdicts within the framework of the trial judge's charge.
I agree with the joint judgment that a jury could not take into account evidence that cleaning was not performed with respect to one count, or a finding of guilt with respect to one count when considering another count. Such evidence or finding could not be used to strengthen the evidence in relation to any of the counts. Indeed, I note that there was no suggestion at trial, and now on appeal, that evidence of Mr Tringrove's conduct in not cleaning the cages on one count could be used as a piece of circumstantial evidence on another. The Crown did not invite the jury to have regard to conduct with respect to one instance that a cage had not been cleaned as evidence that any other cage had not been cleaned. If such evidence had been relied on in this way, it would be caught and prohibited by s 97 of the Evidence Act 2001. The use of the evidence in that way would amount to classic tendency reasoning.
Part 6 of the Evidence Act deals with tendency and coincidence evidence. Under s 97(1), evidence of the conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, if a required notice is not given. Leave may be given to dispense with the notice (s 100(1)). In any case, the evidence is only admissible if it has significant probative value, by itself or having regard to other evidence (s 97(1)(b)) and also, that the probative value of the evidence substantially outweighs any prejudicial effect of the evidence (s 101(2)). In this case, no notice was given, leave was not given to dispense with the notice requirement, and consideration was not given to the probative value of the evidence.
Use of the evidence across counts would not be caught by s 97 if it was led for a non-tendency purpose. Authorities tend to support a range of circumstances in which evidence, that on its face has a tendency purpose, will be admissible for a non-tendency purpose. The following observations can be made as to the circumstances in which tendency-like evidence has been admissible for a non-tendency purpose.
•     Where the evidence of prior conduct, including prior criminality, goes to show a level of particular knowledge in relation to previous or subsequent acts: see R v Walters [2002] NSWCCA 291.
•     Where the evidence of prior conduct is proximate to, or is part of a continuing series with, the charged acts, so that the prior conduct is direct evidence of the state of mind of the accused at the time of the charged acts, or the state of a relationship in question at the time of the charged acts: see LJW v The Queen [2010] NSWCCA 114; TWL v The Queen (2012) 222 A Crim R 445, and R v Gregory (Ruling No 2) [2009] VSC 509, cf R v Ngatikaura (2006) 161 A Crim R 329.
•     Where evidence of prior conduct excludes the possibility of the involvement of another party: see R v Boskovitz [1999] NSWCCA 437.
•     Where evidence of prior conduct demonstrates the establishing of a business system or practice: Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51.
•     Where the existence of a system, or lack thereof, is itself a fact in issue (rather than going to prove whether, on one occasion, particular conduct occurred): see R v Cittadini (2008) 189 A Crim R 492.

The evidence sought to be used for a non-tendency purpose would need to be scrutinised to see if there is a legitimate purpose. Labelling the evidence as "state of mind" evidence, or evidence of a system, is not enough to avoid the exclusionary provisions: Jacara Pty Ltd v Perpetual Trustees WA Ltd (above) per Sackville J at [65]. If the evidence is relevant to a fact in issue because it tends to show a tendency to act in a particular way, then it is tendency evidence. Does the evidence here have relevance, independent of tendency?
While the cases against each appellant turned on the falsity of the invoices and the cleaning work not having been done, the cases against them were in other respects conceptually different. The mental element of knowledge of the falsity of the invoices and dishonesty depended on the jury drawing an inference. In the case of Mr Tringrove, an inference of dishonesty and knowledge of the falsity of the invoices was an almost inevitable inference to be drawn from the failure to perform the work. In the case of Mr Fahey, such an inference was open and a reasonable inference to draw, but not as compelling if the jury concluded that some of the work was undertaken by Mr Tringrove.
It is difficult to see how any of the evidence against Mr Tringrove on one count would be relevant to a fact in issue on any other count, on a basis other than tendency. For Mr Fahey, the situation may potentially be different. If he did not ever check whether any cleaning was done, that could be a method of running the business, as evidence of general lack of supervision of Mr Tringrove's work, which would arguably be a piece of circumstantial evidence having relevance to individual counts. The method Mr Fahey employed of processing Mr Tringrove's claims could potentially have some relevance. These potentially legitimate purposes have not been explored on the appeal and I raise them without expressing a concluded view. I note there may well be other purposes which I have not considered.
Here the direction was very general. It invited cross-admissibility of evidence in relation to either appellant as to any piece of evidence. Without clear and careful directions as to what piece of circumstantial evidence could be used and for what purpose, there were real dangers in the direction given. There was danger in the use of the word "pattern" without explanation. The jury may have thought repetition of conduct was a pattern. The jury may have reasoned that the repeated submission of claims, utilising the same type of documents in the same way by Mr Tringrove, opened the door for cross-admissibility of evidence of guilt. In this way, a finding of guilt on the basis that cleaning was not done on some counts may have been used to shore-up a finding of guilt on another merely because of the pattern or repetition of the same types of documents. This process of reasoning has the risk of sidelining the question of whether the cleaning was done in relation to a particular count. This, in effect, allows tendency evidence in under another guise. There is also a risk that the jury may have reasoned that, not only was evidence concerning strong counts against Mr Tringrove admissible on weak counts against him, but also admissible on any counts against Mr Fahey. There was the complication that Mr Tringrove's admission had to be disregarded in relation to any counts against Mr Fahey, even when considering Mr Tringrove's conduct and whether he cleaned the cages. Yet there is the risk that conclusions relating to those stronger counts against Mr Tringrove, supported by the admission, could have been taken into account in relation to counts against Mr Fahey. In searching for an explanation as to how the jury could have reached the verdicts, given the directions and the evidence, the explanation may lie in impermissible reasoning resulting from the utilisation of evidence across counts.

Proviso

In the case of counts 1 to 32 in relation to Mr Tringrove, and all counts in relation to Mr Fahey, it was not open to the jury to be satisfied beyond reasonable doubt that none of the cleaning work had been undertaken. The proposition that some of the cleaning had been done with respect to each count is a hypothesis that is advanced said to be consistent with innocence. The question is whether the appeals ought to be dismissed because, for each count against Mr Fahey, and counts 1 to 32 against Mr Tringrove, there was evidence capable of satisfying the jury that some of the cleaning work had been undertaken. Can it be said that no substantial miscarriage of justice, within the meaning of s 402(2) of the Code, has actually occurred because there was evidence which could persuade a jury that Mr Tringrove did not do all of the work that he charged for?
It is my conclusion that to apply the proviso would undermine the principles I have identified regarding the adversarial nature of the trial process. The parties should be bound on appeal by the issues defined at trial. Otherwise the consequences are that the Crown, having made a concession at trial, which limited the issues, may then on appeal retract that concession so that the issues are enlarged, exposing the appellants to a new contest. Drawing on the authorities referred to earlier, there is a societal interest in the finality of the issues forged at trial.
The appellants point to prejudice if the proviso were to be applied because, had the trial proceeded on the basis that some cleaning might have been performed, then different closing addresses for the appellants would have been presented. Whilst I do not give consideration to the proviso for the reasons I have mentioned, I acknowledge that if not for the concession made by the Crown, the defence would have needed to meet a different case that some or merely one of the claims in each invoice were false. This was a very different enquiry to that which the jury was engaged in, as to whether each invoice was wholly incorrect. The unfairness that would result in this regard is illustrative of the importance of the fundamental principles I have identified.
Finally, in the context of the proviso, it is noted that this is not a case where, on a proper consideration of the evidence, absent the Crown's concession, the conviction of the appellants was inevitable on the evidence at trial. For example, in the case of Mr Tringrove the jury may accept his explanation to police that he did all the work he claimed, but not necessarily on the dates he asserted, and find that the evidence does not exclude that hypothesis. In the case of Mr Fahey, even if the jury found that not all the cleaning work was performed, the jury may conclude that Mr Fahey did not have knowledge that that was the situation.

Resolution of the appeals

It is noted that if the Crown was to pursue the same case, characterised in the same way on a retrial it would fail. Presumably, the Crown would rely on the same particulars and the same evidence as was called at the first trial, but not confine its case on liability in relation to each count. There is authority that the "Crown should not be given an opportunity to make a new case which was not made at the first trial": King v The Queen (1986) 161 CLR 423 at 433. The meaning of a "new case" has been considered: R v Wilkes (1948) 77 CLR 511 at 518; Jiminez v The Queen (1992) 173 CLR 572; Parker v The Queen (1997) 186 CLR 494 and Taufahema per Gummow, Hayne, Heydon and Crennan JJ at [67]-[68]. However, a retrial without the Crown's concession would not be a "radically different" case and more in the nature of a "remoulding" Taufahema at [68]. The Crown's rationale for adopting the original stance is unclear but would seem to be more inconsequential rather than strategic or calculated to advantage the Crown. Allowing the Crown to re-characterise its case would not seem unfair. I agree with Blow CJ and Pearce J that a retrial should result for both appellants, subject to the usual prosecutorial discretions. I agree with the proposed orders that in Mr Tringrove's case there must be a new trial on counts 1 to 32 inclusive, and in Mr Fahey's case a retrial on all counts.