Vella v The Queen

[1990] HCATrans 249

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P4 of 1990

B e t w e e n -

CHARLES VELLA

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 23 OCTOBER 1990, AT 3.27 PM

Copyright in the High Court of Australia

Vella 1 23/10/90

MR A.D. FENBURY: If Your Honours please, I appear for the

applicant in this matter.	(instructed by Lawton
Gillon)

MR K.H. PARKER, QC, Solicitor-General for the State of

Western Australia: If it please the Court, I

appear with my learned friend, MS M.A. YEATS, on

behalf of the respondent.	(instructed by the State
Crown Solicitor)

MASON CJ:	Mr Fenbury.
MR FENBURY:	If Your Honours please, the applicant was

convicted in October 1989 of four counts of
offences of a dishonest kind. Three of those were
stealing offences and one was one of improper

conduct contrary to a provision of the Companies

Code. The applicant sought leave to appeal to the

Court of Criminal Appeal in January of this year

and was granted leave and the conviction in

relation to the fourth count being one of improper

conduct was quashed.

MASON CJ:  Yes. Do you have an outline of submissions?

MR FENBURY:  I do not have an outline of submissions,

Your Honour, no. I was not aware that one was

required in an application.

MASON CJ: Normally, it is not in the case of an application

for special leave but, of course, under the current
procedure the Court hears the application for

special leave and concurrently hears the appeal,

against the possibility that special leave will be

granted.

MR FENBURY:  Yes, I -

MASON CJ: Very well, if you would proceed with your

argument.

MR FENBURY:  The application for leave to appeal in respect of the convictions for stealing was dismissed. The

applicant is an accountant and - - -

MASON CJ:  We are familiar with the circumstances and we

have read the judgments under appeal.

MR FENBURY:  Thank you, Your Honour. I will then refer

particularly to the judgment of His Honour the

Chief Justice in this matter. There were no

admissions of guilt made by the applicant in or out
of court and the Crown case, basically, relied on
inferences to show fraudulent intent and the intent
of the applicant was really the only issue in the
case. There was no dispute by him that he had

taken the moneys concerned in respect of each of

Vella 2 23/10/90

the three convictions but, in relation to two of
them, he maintained that he had a right to take

those moneys and, in relation to the third, he

maintained that he had taken them following a

mistake.

Thus, Your Honours, the issue at the trial was

whether the applicant had an intent to defraud when he took the moneys or, as was put by the prosecutor at the trial, whether he had acted honestly. That
was the issue at the trial: whether he had behaved honestly. And that involved a personal examination

of him by the jury - he was a person who had no

previous convictions - and their decision on the

case was going to and was always obvious it was

going to depend very much, exclusively, on their

assessment of his credibility.

Unfortunately in this case, as can be seen

from the reasons for judgment of the court, at the trial the Crown prosecutor engaged in conduct that

was calculated to prejudice the jury, not only in

his cross-examination of the applicant but also in
his final address to the jury at the end of the day
and not only in isolated instances or accidental -
instances of an accidental kind but, in my

submission, repeatedly and to the extent that the

words he used can have any life of their own, with

some vigour. And, in my submission, it can be seen

from the transcript and arguably can be inferred
from the observations and comments of Their Honours

that are set out in the second appeal book that the prosecutor deliberately tried to prejudice the jury

unfairly against the applicant; that is, he set

out, in my submission, to ensure the applicant did

not get a fair trial. That, in my submission,

observation can be made having regard to the

findings of the court and the observations they

made about the conduct of the prosecutor.

His conduct, effectively, went unchecked by anybody, save for one or two exceptions which I

will refer to shortly and, in my submission, at the

end of it amounted to a substantial blemish in the

conduct of this trial.

This application for special leave,

Your Honours, raises the appropriateness of the

application of the proviso in the West Australian

Criminal Code, section 689(1) which was applied by

the Court of Criminal Appeal following the

unsuccessful application for leave to appeal.	The
line of authority on the application of the

proviso, in my submission, requires an evaluation of the significance of the irregularity, not just the weakness of the defence case.

Vella	23/10/90
MASON CJ:	Now, was it a case where the Court of Criminal

Appeal applied the proviso or was it a case in which the Court of Criminal Appeal held that there was no miscarriage of justice, notwithstanding the conduct of the Crown prosecutor?

MR FENBURY: Well, the Chief Justice - firstly, His Honour

Mr Justice Brinsden, I think, took the course

Your Honour has just described. He did not say

there had been a miscarriage of justice but he did say, "Even if I was of that view I would apply the proviso". The learned Chief Justice did not - put

it slightly stronger than that. I am sorry, maybe

that is just the way I have read it. His

observations are on page 298 of the second appeal

book where he said:

In the end there is a question whether a

substantial miscarriage of justice has

occurred. In my opinion although the conduct

of the leader for the prosecution was

calculated to prejudice the jury, there was no

miscarriage of justice. The case against the

applicant was extremely strong.

Now, I must confess, it is not clear from

His Honour the Chief Justice's reasons whether he -

he was unable to get to the first base. He did not

differentiate.

DAWSON J: It becomes less clear on the next page.

MR FENBURY:  Yes.

McHUGH J: But the only ground of appeal could be

miscarriage of justice.

MR FENBURY: That is right, Your Honour, yes.

McHUGH J: So, it is not a case for the proviso, really, is

it? I mean, the ground of appeal was miscarriage of justice and the particulars were the conduct of

counsel.

MR FENBURY:	Yes.
MASON CJ:	In every case where conduct of counsel is relied

upon, you have got to establish miscarriage as the

ground of appeal. So, you do not get to the
proviso. It falls to be determined on the ground

of appeal.

MR FENBURY:  I am, with respect, happy to proceed on that

basis.

MASON CJ: Very well.

Vella	23/10/90
MR FENBURY:	The important feature of the case, however,

Your Honour, in my submission, is this, and the key

to it, if I may put it that way: that because the

issue in the case was the applicant's credibility

or his honesty - and that was the way it was left

to the jury, both the prosecutor and His Honour and the defence counsel agreed with that - because that was the issue then, in my submission, the conduct

of the prosecutor in improperly and unfairly

prejudicing the jury against the applicant assumes

much greater significance and gravity than it would

perhaps in another sort of a case and, in my

submission, that is really the point of this

application for leave.

The applicant, as a result of the conduct of

the prosecutor, did not get a fair trial and, in
the circumstances of this particular case - - -

McHUGH J: But, the accused was defended by senior counsel

who was described as very experienced and no

objection was taken.

MR FENBURY:  Yes. Well, it is not quite

McHUGH J: Well, except on one occasion.

MR FENBURY:  Yes. Well, can I, if it is convenient, refer

Your Honours to the objections that were taken such as they are and I acknowledge that.

The commencement of the cross-examination of the applicant that commences at page 52 of the

first appeal book was not so much an objection but

the prosecutor referred to the applicant being a

receiver of the company involved when, in fact, he

was not the receiver; he was the - well, he may

have been the de facto receiver but he was the

person who did the work. He was not the receiver

and counsel for the applicant at the top of page 52

made that point.

The next time that the defence counsel appears

is on the following page - or when he speaks is on

the following page - when he agreed with the trial

judge's observation that the applicant had not said

he was the highest qualified accountant in the
country. Neither of those are, we would concede,

objections as such but they are two occasions when

the counsel was heard and it appeared from that

that the learned trial judge was supportive to some

extent.

The next reference is page 91A where the

prosecutor was cross-examining the applicant about his preparation of a document and the fact that he

did not send it anywhere; that he sent it or gave

Vella 23/10/90

it to his partner and some questions were asked by

the prosecutor there which, if I may say, are

typical of the style of the prosecutor during the

trial:

You mean, you wrote the document and kept it

in your office?---Correct.

What were you doing; playing hide and seek

with the document, were you?---No.

Then, a bit further down:

Are you saying to the ladies and gentlemen of

the jury that you write these letters and keep

it under your mattress?

Counsel objected to that:

He's not saying that.

And, the next reference which is the more substantive one is at - the last; there are two

more - is at 112B where the defence counsel

objected to the prosecutor speaking the way he was.

The prosecutor had said:

Mr Vella, please bear with me. Your counsel

is not an ordinary man; he is a Queen's

Counsel.

That was the third time that the prosecutor had

made a point about that, on two other occasions; at

75AB and 91C, the prosecutor, one can infer with

some particular inflection in his voice, had said

"learned Queen's Counsel", "your learned Queen's

Counsel" and that drew an objection from defence

counsel at the middle of page 112:

I object to this continual reference about not

being an ordinary man.	I don't mind a little
bit of - - -

Then, an exchange occurred with His Honour which

certainly did not, if I may say, support the

defence counsel's complaint and then, whilst he was

on his feet, the defence counsel commenced to say,

at 112E:

What -

after being told:

Don't develop it, Mr Wallwork; while you are on your feet what?

and then, he says:

Vella 6 23/10/90

While I am on my feet, I object to him

constantly saying that where he doesn't agree

with another witness, the next question is,

"She's lying then, is she?" There are a

number of -

HIS HONOUR: There are ways of clearing up

whether it is a mistake or whether it is a

deliberate lie.

Now, that forensic tactic of the prosecutor was not

endorsed by the learned Chief Justice in his
reasons but he did not find that it was in any way

improper, but it was a tactic repeatedly used by

the prosecutor. He would get the witness or the

accused to disagree and then say, "Well, you're

saying she's lying, are you?" and it happened on

quite a few occasions.

TOOHEY J:  What do you say about the Chief Justice's comment

that that particular forensic technique was

not always commended but was not improper?

MR FENBURY: Well, it would seem to me, with respect, to

fall within that category or complaint or

irregularity which is a manner of taste rather than

something that would be said to have been unfairly

prejudicial. It is not - - -

TOOHEY J: Well, that may be in misstating it.

MR FENBURY:	Yes.
McHUGH J:	I must say, New South Wales cases are conducted

in a fairly robust manner but I think most judges

there would stop you putting that sort of question

simply because it asks the witness to form a view

about the state of mind of the witness which the

witness cannot do.

MR FENBURY:  Yes. The point of it, with respect, however,

Your Honour is that there the defence counsel

raised the matter, objected to it and got fairly

short shrift from His Honour and so, although I

suppose it may be that one could say he should have

objected every time something went wrong in the

case and there are large passages in the transcript

where there was utter silence from the defence

counsel, it needs to be examined against the scene

or the atmosphere of the trial, which can be

discerned from what had happened.

TOOHEY J:  But my question did not go to the presence or

absence of an objection; my question went to the

characterization of that type of question, whether

objected to or not. You describe it as a matter of

Vella 23/10/90

taste. I would have thought it was open to more

serious criticism than that.

MR FENBURY:  Yes.

McHUGH J: Yes, so would I.

MR FENBURY:  I would not expect I - - -

McHUGH J: It is really an objection on form, is not it,

because you are asking one witness to comment on

the state of mind of another witness?

MR FENBURY:  I would agree. What I said was that is a scene

that - arguable that that is the sort of comment
that, along the lines that some of the authorities

speak of, being a question of taste rather than a

real problem in itself. It is not a matter

specifically raised in this application but it was

part of the way the trial went; part of the conduct

of the prosecutor. If Your Honour - - -

MASON CJ:  What do you mean by saying it is not a matter

specifically raised in this application?	I mean,
now that it has been raised, should you not complain of it?

MR FENBURY:  Yes, it is a matter that I - I do not

abandon it. I am not saying that I am not willing

to, if the Court thought that it was a matter - and I am not going to try and persuade the Court to the contrary; but I am saying that the application for

leave to appeal, we certainly have not given any
notice that we were complaining about the finding

of the learned Chief Justice about that style of

questioning. We have not so far; we do now.

The final objection made by the defence

counsel, Your Honours, is at 138C, and this is

quite revealing in my submission. This followed

those passages in the cross-examination,

Your Honours, where the prosecutor had engaged in

the sort of, if I may say, abuse and bullying

tactics that the learned Chief Justice mentioned in
his reasons and which I will take the Court to

shortly but just on the question of objections,

138C, Your Honours, after the prosecuting counsel

said:

Mr Vella, please listen to me. I know you are

a very knowledgeable man. Suddenly you have

become very knowledgeable of these things?

Defence counsel said:

Sir, I wish to -

Vella 23/10/90

and the prosecutor interrupts, and defence counsel:

He must not abuse the witness.	I must object
to this continuing.

I would stress the word "continuing" because, in

the previous pages, there had been a good deal of

conduct from the prosecutor to which no objection

had been taken and it would seem there that, in my

submission, the defence counsel was certainly aware

of something being unfair, if that can be inferred.

I stress this, Your Honours, because the Court

of Criminal Appeal when they dealt with this matter

basically said lack of objection indicated no great

prejudice or problem. Therefore, the conduct of

the prosecutor did not really have effect. That is

a lot of weight in the lack of objection.

McHUGH J: But, if counsel for the accused thought there was

serious prejudice, it would have been his duty to

apply for the jury to be discharged and then the

trial judge, who was there and was in the middle of

the atmosphere of the trial, could have given his

reasons and an appellate court could interfere but,

here, you have got nothing like that.

You are asking us to reverse the Court of

Criminal Appeal, grant special leave, on a transcript with no reasons of the trial judge; we have got nothing from the trial judge about the

conduct of the case or the atmosphere.

MR FENBURY: Your.Honour, the sorts of words or the words

used by the prosecutor have a life of their own to

some extent.	One does not need to hear them
to -

McHUGH J: Not necessarily; it depends on attitude.

MR FENBURY:	Yes.
McHUGH J: But it might have been done tactically by counsel

for the accused.	The witness may have been getting
the better of - - -

MR FENBURY:  I hope I can give you an example in just a

minute, Your Honour. In fact, I am just coming to

it now, I think.

DAWSON J:  One can say this: that a number of the questions

appear to have been offensive or bordering on the

offensive but they were not very subtle, were they?

What was happening was fairly obvious. By that, I

mean that it may have been obvious to everyone in

the courtroom and just really may have been getting

nowhere and that is the reason for the absence of

Vella 9 23/10/90

continual objection or for the absence of an

application to discharge the jury.

MR FENBURY: Well, I do not think, Your Honour, that the -

that last objection on 138C, defence counsel tried

to raise a matter with His Honour:

I object to this continuing.

HIS HONOUR:  I don't call it abuse but -

MR WALLWORK: Well, he's talking at the

witness and telling him.

HIS HONOUR:  If you're going to take offence

at this language, Mr Wallwork, I'll have to

rule on it but I don't consider that's

abusive. It's just firm cross-examination.

MR WALLWORK: Well, he's not asking questions

is really the point. He's making speeches at

the witness.

HIS HONOUR:  I consider there's nothing wrong

with his cross-examination, Mr Wallwork.

DAWSON J: Yes, that is an interchange which supports what

you say.

MR FENBURY:  He did not object again and he would have been

entitled, in my submission, to have gathered from

that exchange that if he had made any application

for redirection or discharge, there was no way that

the learned trial judge would have acceded to that

in the circumstances.

McHUGH J: Well, that does not stop counsel - - -

MR FENBURY:  It does not stop him, I agree with that,

Your Honour.

MCHUGH J:	And he should do it.
MR FENBURY:	But in the circumstances the lack of complaint should not be held against the applicant now, in my
submission, if one looks at the way the case was conducted and the way it developed and the exchanges that did take place.
DAWSON J:	I think what I am putting to you is that it does

not reflect credit on anyone really but what you

are complaining about would have been obvious to

the jury as well and there is no reason to assume

that it produced a miscarriage of justice.

MR FENBURY: Well, one matter would not, Your Honour, but

there was a theme developed by the prosecutor

Vella 10 23/10/90

where, after getting from the accused that the

accused had caused to be brought into existence a

variety of commercially normal documents

surrounding the receivership, indemnities and

mortgage debentures and matters of that kind, which were utterly normal and commonplace in their areas,

the prosecutor used - - -

MASON CJ: This is the indemnity you are referring to, is

it?

MR FENBURY:  Yes, Your Honour. The prosecutor, commencing

at 95E up until 97 - if I may take Your Honours

there briefly. At the bottom, 95E:

Mr Vella, I'm talking of a document. Perhaps

you might be as ignorant as you are in respect
of section 324 with respect to mortgage
debentures too. Are you?---I don't know what

you're saying.

Do you know what mortgage debentures are?----

Definitely.

You have shown a lot of ignorance in relation

to the Companies Code. Do you know what

mortgage debentures are?---I didn't show

ignorance to the Companies Code.

It generates a bit from then on; then, at 96, he

was asked about the mortgage debenture and the

applicant said that it had to be read with the

indemnity which was never put in evidence.

McHUGH J: But this is the very sort of cross-examination

that is apt to get a jury offside. Counsel for the

accused might have been only too happy for the

cross-examination to continue. You have got

counsel for the Crown browbeating the accused and

the jury usually has some sympathy to the accused,

to start with anyway.

BRENNAN J: Especially if the accused is making a bit of a

fist with dealing with it.

McHUGH J: Yes.

MR FENBURY: Well, it reaches its climax, Your Honour, at

97C. After getting all this material from him:

Yes. I mean, virtually you stitched them up

like a Christmas turkey, didn't you?

And, this is the accountant who was said to be

educated and intelligent, and the whole theme of

the prosecution case was here he was abusing the

Vella 11 23/10/90

poor Rooneys, the poor people whose company it was.

It was against that theme.

Now, the Chief Justice made some observations

about that and it basically was that it carried a

suggestion that what the applicant had done was

unfair, was sharp practice of some kind, was

something that was really to be criticized. Nobody

referred to the fact, at all, not a single person

in the trial, that what the applicant had caused to

be done was perfectly normal activity and

Mr Justice Brinsden in his reference to it, which

if I may just very briefly refer Your Honours to;

it is in the second appeal book on page 317A:

Counsel also referred to the applicant having obtained indemnity for fees from

Connought Earth. The applicant had claimed

that Nichevich and Vella had an indemnity from

Connought Road and Connought Earth and

therefore were entitled to indemnify

themselves against fees. The Crown prosecutor

insinuated that the obtaining of indemnities

was in some way a sinister act, and by that

act along with others, he had "stitched up the

company". Of course, an indemnity to a

receiver given by the company appointing the

receiver is an unremarkable transaction and it

is surprising that a person employed by the

National Securities Commission, as was Crown

Counsel, was unaware or apparently unaware (to

put the best complexion on counsel's

behaviour) of that practice.

The prosecuting counsel in his address to the jury repeated that proposition that the indemnities and those documents were sharp practice and he did it

by drawing a comparison between the applicant and a

redback spider and he did that on 191.

BRENNAN J: Well, this has to be considered in its context.

I have not read all the transcript but, for

example, there is a suggestion here that the

security that was given was a security over all the

assets which were his own. Was it? And, how much

assets did they own? And, what was the amount of

fees that was likely to be secured by such a

mortgage? Do we not have to consider the total

complexion of the facts as well as the temper of

the trial?

MR FENBURY:	Your Honour, I would agree that Your Honours would but the submission is, Your Honour, that the
prosecutor used this material deliberately to
prejudice the jury in a way which was unfair. He
operated upon the basis that the indemnity and the
mortgage debenture and those documents, that they

Vella 12 23/10/90

were documents which this smart accountant should

not have entered to; that a decent accountant would

not have entered into and that he was guilty of

sharp practice by having done so and the jury was

never corrected by anybody in the trial

as to ..... otherwise or the receivers getting the
sorts of security that had been referred to and, in

fact, it was used as an example of the applicant's

dreadful, dishonest, greedy conduct and it was put

to the jury on the basis that he was like a spider

and that is all on page 191:

The first web ..... the second web ..... they got

stung.

That is why I referred - and he refers to - - -

BRENNAN J: Well, does that matter in the circumstances

of the convictions in this case? The convictions

in this case were in respect of two amounts that

were deposited to the credit of the partnership

account, were they not?

MR FENBURY:	Yes.
BRENNAN J:	And were not advanced by the accused as being

subject to the indemnity or the security?

MR FENBURY:  Yes, I think that is right.

BRENNAN J: Well, then, why do we have to worry about

whatever view the jury might have formed about the

propriety of taking the security?

MR FENBURY:  Because the applicant's defence was that he had

a right to those moneys because they were properly

charged fees. He had a need to be believed or to

try and be believed on those issues and his

entitlement was never given a run because of the
way the prosecutor behaved and the way the

prosecutor cross-examined him and addressed the

jury.

So in relation to that question, Your Honour,

that is the indemnity and those in the stitching

up, there was never any complaint made about it.

The jury, as I said, were never educated about it

at all.	The only reference made to it by the
defence counsel was of the briefest kind.	He made

a substandard - in my submission, it could not have

been a tactical decision not to raise the matter or

not to explain the matter when one had regard to

the use the prosecutor made of it. So that is an

example, in my submission, as to why it is - it is

unfair to the applicant, in my submission, to use a

lack of objection as being some evidence that there

was little or not sufficient or not as much

Vella 13 23/10/90

prejudice as was basically found by the Court of

Criminal Appeal.

TOOHEY J: It is not so much the lack of objection, I think,

Mr Fenbury, as trying to get some sense of the way

in which the trial was conducted. It may have

suited defence counsel to let the prosecutor go on

and hopefully hang himself by giving him enough

rope, but without looking at counsel's addresses -

and here of course counsel for defence addressed

first so was at something of a disadvantage - but

without that sort of analysis it is hard to know
whether counsel for the applicant made some use of

the way in which the prosecutor had gone about his

business and used it for the accused's advantage.

I do not recall anything of that effect in my

reading of the addresses, I must admit.

MR FENBURY: Well, the only reference

TOOHEY J: If I could just go on. It does point up the

difficulty for this Court in trying to get some

sense of the atmosphere of the trial and assessing
whether these things work to the disadvantage or,
conceivably, to some extent, to the advantage of

the applicant.

MR FENBURY: Well, Your Honour, the only reference the

defence counsel made to the matters raised in this

application at all are at 167A, where in 10 lines

he said:

What the learned Crown prosecutor said was that he'd stitch these people up like a

Christmas turkey and siphoning off their money
in the five charges that we are concerned
with. That is a rather colourful way of

putting it but you may not be satisfied that

that's what he was doing at all.

That is the only comment that the defence counsel

made about all of the material that is conveniently

summarized and the reasons for the decision of the

learned Chief Justice.

BRENNAN J: Well, when you say, "that is all that he said"

what you are really saying is that having regard to
the alleged enormity of what the Crown prosecutor

did, that was no adequate defence.

MR FENBURY:  I would prefer, if I may, to put it this way,

that the effect of the behaviour of the prosecutor

was not mitigated in any way by anything the

defence counsel, or His Honour, the learned trial

judge, said to the jury. His Honour never

mentioned it at all.

Vella 14 23/10/90

BRENNAN J:  The difficulty with that submission, as I see

it, is twofold: one is that the gravity of the

Crown prosecutor's conduct can be assessed only in

the context of all the facts of the case, and in

particular the facts bearing upon the issues to

which the Crown prosecutor's comments were

directed; the second is that the effect of the

Crown prosecutor's comments, without any reference by the trial judge, and with limited reference only

by counsel to the accused, cannot really be

assessed without appreciating the dynamics of the

exchange between the Crown prosecutor and the

witness and the atmosphere that was engendered by

that exchange, and that of course depends as much

upon the demeanour of the accused as it does upon

the words of the prosecutor.

Now, in those circumstances, or if those be

the circumstances, can this Court intervene, and on

what principle?

MR FENBURY: Well, in my submission, this Court can

intervene because the result of all of that is the

applicant did not get the trial to which he was

entitled.

McHUGH J: Yes, but the grounds you to make out is that

there was a miscarriage of justice, and if you look

at the objective facts, the case is extraordinarily

strong case. In fact, it is difficult to imagine a

stronger case on paper. I mean, here are these

moneys which should have been accounted for, then

at no stages are they accounted for. All the

documents, the form, company's return form, nowhere

is there any suggestion that these moneys were -

this $9,000 - was ever received on behalf of the

company in receivership, and then, as I understand

it, the applicant says that, "Well this was - - -

MR FENBURY:  He agreed, Your Honour. He said, "I took those

moneys as fees."

McHUGH J:	I know.
MR FENBURY:	There was no dispute the company never received the moneys, sir.

McHUGH J: But they were never recorded, and when the

document prepared by him was there not, showing

what fees were due to the receivers, and there was

no credit given for the sum of $9000-odd - it

really was a powerful case. Perhaps that only

means it is all the more important that your

client's answer, however weak it might seem, should

have been received in a calm and unprejudicial

atmosphere. I follow the force of that.

Vella	15	23/10/90
MR FENBURY:	There was no confession of any kind.	The

applicant advanced an explanation that he had no

fraudulent intent and - I do not know whether, as a
matter of logic, one could say, "Well, the case
could not have been that strong because the

prosecutor would not have behaved as he did if it

was" - if I can put it like that - but that is what

the Court of Criminal Appeal found, or said, about

the case.

In my submission in a case like this where the jury was asked to draw an inference of intent in the

absence of confession, there would have to have

been, objectively, a chance that the jury would

believe, or have a reasonable doubt, having heard

the applicant. They did not get a fair opportunity

to hear the applicant because of the matters

raised - as I think I have mentioned already - but

make the point, Your Honours, that the learned

Chief Justice says that the matters that he
enumerates are some of the matters that he found -

they are not all the matters; I am just not going to

try and take this honourable Court through the

transcript because that would take too long,

but - - -

McHUGH J:  I would have thought you would have concentrated

more on the golden fortune matter. That seems to

me a matter more likely to prejudice your client.

MR FENBURY: Well, my problem in relation to that, Your

Honour, is that I blurted that out during the

appeal application without any evidence, basically

because I became aware of it that morning and it

just was not possible. So I can hardly then raise

the matter before Your Honours now, although I am

able - and I think my learned friend would be

able - if the Court were to entertain any

observations about that. The learned Chief Justice

made an observation that the material was put to

him without evidence. Mr Justice Brinsden said,

he made the observation that Crown counsel at the	"Without evidence but without objection" although
application for legal appeal was not the trial
Crown counsel. I do not know whether my learned
friend has any problem about it but there is no
application before this Court to adduce fresh
evidence. There is an ability to do so if the
rules could be bent.

McHUGH J: Well, you have the benefit of what is said in the

judgments below; whatever use you can make of it.

MR FENBURY: Well, with those qualifications, Your Honour,

in cross-examination of the applicant, and when the

prosecutor was seeking to establish his expertise

as a receiver, he was asked whether he had been the

Vella 16 23/10/90

promotor of a company called "Golden Fortune" which

raised six and a half million dollars from the

public. His trial was in September 1989 and I, as

I say, blurted out some evidence from the bar table

to the court about publicity of an event the

previous November. I do not know whether I can,

with propriety, take it any further save that I

have got some material with me in Court.

McHUGH J: Well, you can rely on what is in the judgments.

I do not know that you can go beyond that if it is

not in the transcript.

MR FENBURY:  The references, Your Honour: in the transcript,

the applicant was cross-examined about it at

page 56 and 57D and it was not referred to by any
person, so far as I can recall, again in the trial;

and in the application for leave to appeal before

the Court of Criminal Appeal, following some

submissions made during -

McHUGH J:  Is what appears on page 57 the only reference to

Golden Fortune?

MR FENBURY:  That is right. Later on it was put to the

jury he was a director of companies and a promoter

and he should know the score. That was the only

reference to Golden Fortune.

McHUGH J:  What are the references to Golden Fortune in the

judgments?

MR FENBURY:	Page 288.
MASON CJ:	And I take it that statement that it went down

"amidst an immense amount of adverse publicity

during which the applicant's name was repeatedly

referred to", was the statement that you made to

the Court of Criminal Appeal, not supported by the

evidence.

MR FENBURY:  Yes, Your Honour, that is correct. It is also

referred to by Mr Justice Brinsden at the bottom of

316 and over to 317.

McHUGH J: Well, what was the justification for asking the

questions at page 57 - what justification was given

for those questions if it was not to prejudice the

accused?

MR FENBURY:  That is in my submission; there was only

one

McHUGH J: Is there any explanation give for it anywhere?

MR FENBURY:  No, sir, and in my submission, the way it was

submitted it was a question to which nobody

Vella 17 23/10/90

objected; to which nobody knew, it appears; nobody

commented about it and it could have been only

asked for one reason, in my submission.

BRENNAN J: That is not necessarily so is it? It may have

been asked for the reason of showing that he was

involved in a multi-million dollar financial

exercise and therefore had a certain capacity to

deal with money in large denominations.

MR FENBURY:  Yes, with respect, I agree with you,

Your Honour. I was wearing my hat at the wrong

case but, in the circumstances of the trial in its

entirety, it was a matter that was raised with the

Court of Criminal Appeal.

DAWSON J: See, the trouble is that the accused here was not

an unprotected person placing himself on the mercy

of the court, as it were. He had counsel who was

there to protect him when he saw fit and, you see,

no objection was taken to this and there may have

been good reasons, we do not know.	It is very
hard.

MR FENBURY:  Well it would have been a problem, with

respect, with that question, because to object to

it would have drawn attention to it and it may have

been that nobody on the jury had heard about it or

read the financial papers or whatever.

DAWSON J:  I could understand an application being made in

the absence of the jury for a discharge.

MR FENBURY:  Yes. Well no action was taken by the learned

defence counsel of that kind. Can I finally then

just draw Your Honours' attention to one or two

cross-examination examples which do not appear in

any of the judgments which - - -

TOOHEY J:  Mr Fenbury, just before you do and before I lose

track of a question: is there anything in the

material to show what sentences the applicant received?

MR FENBURY:	Yes, Your Honour, the affidavit on page 329.
TOOHEY J:	Oh yes, thank you.
McHUGH J:	Was any motive put forward for the applicant

taking this money? A shortage of funds or - - -

MR FENBURY: His case was, Your Honour, that the moneys were

for fees set off against fees owing then and there.

McHUGH J: But what about the Crown? Did it allege -

Vella 18 23/10/90

MASON CJ:  The first amount, the suggestion was, was it not,

that it was really set off against fees not owing

by the company in receivership at all, but the

other company with a similar name and in respect of

a period that was not covered by the period of

receivership.

MR FENBURY:  That was the Crown case, however the applicant

maintained that, as to the dispute about not being

covered by the period, he had a legal entitlement

pursuant to a clause in the indemnity which was

never put before the jury; it was never seen.

MASON CJ:  Mr Fenbury, it is 4.15 now and we shall adjourn.

AT 4.15 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 24 OCTOBER 1990

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