Walters v The Queen

[2003] HCATrans 767

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S277 of 2002

B e t w e e n -

WILLIAM JOHN WALTERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 3.03 PM

Copyright in the High Court of Australia

MR M.S. ABDUL‑KARIM:   If your Honours please, I appear for Mr Walters, the applicant.  (instructed by the applicant)

MR D.J. FAGAN, SC:   May it please the Court, I appear for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

MR ABDUL‑KARIM:   Your Honour, at the very outset I must say that the way those charges were brought and the commonality or the common ground of all these charges, it is necessary to sort of be repetitive and I apologise if it sounds repetitive in a way, but essentially what we say the error is that was made below is simply the nature of the case.  Regardless whether the Crown run it as a tendency case or a coincidence case, it did require a section 97 application be made and a decision be made, simply in fairness, your Honour, because the way the Crown did run the case – it handed a bar chart to the jury, a folder, that contained all the companies, and the commonality of repetition and overlapping that ‑ ‑ ‑

KIRBY J:   Essentially, you are saying that procedural orders that were made at a very early stage miscarried and that the matters should be have been the subject of separate trials.

MR ABDUL‑KARIM:   Your Honours, yes, and there is a concession before the Court of Appeal ‑ ‑ ‑

KIRBY J:   It is a pretty unpromising matter to bring up to this Court.  A lot of water has flowed under this particular bridge since those decisions were made.

MR ABDUL‑KARIM:   Your Honour, the consequences still – the same still follows, and those consequences or the effect of them to some extent were conceded by the Crown in the Court of Criminal Appeal.  The Crown made a concession, and that appears on page 124 of the application book.  First of all, around about 15, his Honour said:

in my opinion, makes it unlikely in the extreme that any application for separate trials in relation to the different counts would have been successful.  A trial in which the Crown was deprived of the opportunity to rely on the material in that way, in relation (say) to the charges concerning Budscan onwards, would have been unfair to the Crown.

Your Honour, Budscan was the fifth company in line and that was the company in which Mr Walters was still a director and then after that Mr Walters I think uses his son’s name, his girlfriend, Melita Kristof, and Mr Jack appeared on a number of other companies.  The Crown said that basically he was the brains behind that and he sort of dictated what those companies did, but the reality is, your Honour ‑ ‑ ‑

KIRBY J:   Can I say to you that when I read all these papers I had a feeling, which was not dissimilar to the feeling I had in the earlier case in which you appeared, that you had a lot of points but that you had not really conceptualised your case and thought, “Now, what is the point in this case or maybe a couple of points that are going to get me into the High Court of Australia?  What is the really important issue of principle or of law or of fact now?”

MR ABDUL‑KARIM:   Your Honour, I can narrow it down to two ‑ ‑ ‑

KIRBY J:   You have both a conviction and a sentencing application?

MR ABDUL‑KARIM:   Yes, that is right.

KIRBY J:   Now, the sentencing application looks to me to be pretty hopeless because it does not seem to raise a big issue.  You have a procedural point about whether certain things should have been done before sentencing, but that does not seem to me to be – we are not a super court of criminal sentencing appeal.  So if that is so, we are really into the conviction and you have about six or seven points and they are all thrown up at us.  What is your big point?

MR ABDUL‑KARIM:   Your Honour, I did try to avoid that but the charges somehow ‑ ‑ ‑

KIRBY J:   If I can just give you a little bit of advice, having sat there for eight years now listening to these things.  You generally do better if you pick your best point or couple of best points and say, “This is what is going to get me into that Court and if I don’t get into it on those points, I am just not going to get into it.”  Something that grabs us.

MR ABDUL‑KARIM:   Your Honour, I hope to get to the requirement under the Evidence Act, sections 95, 97 and 98, and then section 101(2), 102, then sections 135 and 137, which really goes to say, “After all is said and done, does the probative value overweigh the prejudice?”

KIRBY J:   I could see that that could be a good point, a grabbing point in another case, but the evidence in this case seemed to be very, very strong and therefore no miscarriage of justice seems to have been done to your client in this case, unless of a very technical kind.

MR ABDUL‑KARIM:   Your Honour, the miscarriage would have been this.  Let us assume that the first, Lymkom, by itself as a charge was run by itself.  It would have been – if Mr Walters was convicted because the rest of the case is somewhat similar, Mr Walters could have pleaded guilty for the balance.  Mr Walters could have made a deal, your Honour, of some sort.  He is a man who commands about 200 or 300 bricklayers and works for Meriton Apartments as an exclusive contractor.  That is an opportunity, your Honour, that he had been deprived of. 

The way the Crown presented the case, at some stage it would appear that the amount of money involved, that so‑called…..business, wages and…..business that Mr Walters allocated to himself, somehow they could have balanced the debt to the Commissioner.  Far from it, your Honour.  That was part of the errors that was put to the jury in the summing up, as though if this – he has a duty not to pay partially but a duty on the 7^th of each month for the company to pay and he knew that.

Your Honour, this obligation has not been sort of ‑ Mr Walter has not sort of gone and said, “No, I do not want to pay.”  In fact, he had accountant.  He had advisers.  He attempted to borrow money to pay his obligation.  He sent tax return.  He knew what the liabilities were and he knew he could not pay it.  Your Honour, in an affidavit that he swore subsequently – and that appears on page 186.  He swore that on 17 April 2002.  On page 189, paragraph 19, this is what he had told his counsel:

I also recall that I advised John Bishop during my conferences with him that in all my dealings with Meriton Apartments each individual job was priced verbally on a set price, adjusted for inflation from time to time, per number of units showing on the plan; that after 1990, when the recession hit the building industry, I was almost never paid the agreed contract price by Meritons; that most of the time when I delivered an invoice for a progress payment from Meritons, the sum claimed on the invoice which I calculated by multiplying the agreed price times the number of units completed by me would be crossed out.  Harry Triguboff who would write in a substantially lower sum authorised for payment; that from 1990 to May 1998 I had ongoing arguments with Harry Triguboff about these underpayments; that Triguboff would sometimes pacify me by saying:  “We’ll look at the next job”; that at other times he would tell me to “go and get your tools off my sites if you like”.

Your Honour, clearly there was experts who were called not to – the expert who was called, Ms Lapsley, on behalf of the defence, did not negate the procedure adopted by the Crown, did not attack that but went into the figures to say about the reliability and, in fact, she said as far as the first two or three companies, she would not even sign a document sort of saying anywhere near accurate, particularly companies Taureema, Frego and Kindby were companies that intertwined very, very heavily and the borrowing in between them, your Honour.  That was on accounting advice that Mr Walters had at the time.

Your Honour, the way the Crown presented its case – and again I come back to sections 95, 97, 98, 101, 102, 135 and 137 – is that he had owned all of those luxury vehicles, holidays, boats, and they appeared over and over and over again in one document, the bar chart, showing massive amounts of money each company did not pay and it appeared that Mr Walters had used this for his own private use, when in reality this is a lifestyle that he had enjoyed 20 years or so beforehand, substantially owned something very similar right through those years and, in effect, there was no change in his lifestyle.  He is a man who sort of looked at a building and said, “This is so many units; I price it that much”, and when the cheques come, maybe did not pay for that. 

There was no evidence of anything contractual that had been…..or someone that had taken a closer look at that.  That is the way the man did business, your Honour.  It does not mean that he deliberately defrauded the Commissioner if he was a bad businessman, which appears from the evidence, although unfortunately he did not give evidence at the trial, your Honour.

KIRBY J:   Yes, we noticed that.

MR ABDUL‑KARIM:   It is unfortunate but it seemed that the Court of Appeal made the point that Dr John Bishop, who appeared for him, put on an affidavit in reply and he made the point and the Court of Appeal accepted that in preference to what Mr Adamson, the instructing solicitor, had said, and that was he would not dream of putting Mr Walters to give evidence and the Crown correctly made the point that it opens up for him cross‑examination and all sorts of things could flow as a result of that.  But that, in my submission, your Honour, does not distract from the fairness of the trial that he is entitled to and any accused is entitled to.

Your Honour, if it was a trial before a judge alone, that would have been a different question, but this was a trial with a jury and a lot of emotion that could quite easily be seen or perceived when you start looking up at Ferrari cars and Mercedes, chauffeurs, limousines being driven, houses in the country, going to the wineries and overseas and ‑ ‑ ‑

KIRBY J:   A judge can only dream of such things.

MR ABDUL‑KARIM:   Precisely, your Honour, and you can see the effect on the jury, but the point that I make is simply this, and their Honours in the Court of Appeal make the point, and that is, if there was separate trials, Mr Walters’ chances of being convicted on the first two or three might have been lower than being convicted on the one subsequently, because of the experience he would have gained and the repetition.  But also the point to be made in relation to that, your Honour, is that if the opportunity would have been open to Mr Walters that he had lost the first case or the second case, plead guilty to the rest because this ‑ ‑ ‑

KIRBY J:   But he might not have and put the prosecution and the community to the expense of multiple trials.  These are discretionary considerations and unless you can show some error of principle, we would not get involved in that.

MR ABDUL‑KARIM:   No, your Honour, but the Court of Appeal did make that point and that is it would have been unfair to the Crown.

KIRBY J:   Exactly.

MR ABDUL‑KARIM:   The unfairness to the Crown, your Honour, is simply ‑ ‑ ‑

KIRBY J:   It just means unfair to the community in matters that are interrelated to require that they all be dealt with in separate trials.  How long did this trial take?

MR ABDUL‑KARIM:   I think it was about two weeks, I think, or four.  I am sorry, I withdraw that, I was not involved.  But, your Honours, it probably could have taken two days.  If he was found guilty in Lymkom, he could have pleaded guilty to the rest and the point is that he had never had that opportunity, your Honour, to have that separate trial.  Your Honour, it is simply a case where the same facts repeat themselves and a chart that was given that the 10 counts the jury is looking – although they were told on a number of occasions, “You have to plead each charge separately and deal with it on the fact that…..each charge”, but still looking at one company you would see the figures that applies to others.  There are folders that named all those companies.  It is repetition after repetition.  Your Honour, fairness and, indeed, section 137 of the Evidence Act does make that requirement.

The Crown concede the prejudice but the probative value – whether the probative value of presenting the trial in the way it did really outweighed that prejudice.  Your Honour, we submit that it does not come anywhere near it and fairness would have dictated that Mr Walters would at least be given the opportunity if a separate trial is given or at least the Crown may say, “We are not presenting this as a coincidence or as a tendency evidence.  We have no intention of presenting it.”  The reality is it is unavoidable.  Whatever fairness the Crown would say we would present this case, it simply on the facts, on the reality, it is unavoidable.  Maybe before a judge sitting alone, maybe.

Your Honour, I also make this point, that Mr Walters had the initial charges against him changed.  One charge was, as appears on the application, withdrawn.  That is on 6 March 2000.  It appears on page 1 of the indictment, your Honour.  For example, the first one, your Honour:

did between about January 1989 and about April 1990, at Sydney in the State of New South Wales, defraud the Commonwealth –

and your Honour will see on page 3 the Director did not proceed with those charges and then subsequently on 25 June 2001, the charge, section 29 “knowingly concerned” charge appeared.

So, your Honour, as far as the prosecution were concerned, it is not as though they were fixed on, “We want to run it this way.”  They really had thought about it a lot and presented a case that sort of fitted the facts.  But nevertheless, your Honour, it still, in my submission, falls far short of satisfying the requirement of the Evidence Act.

KIRBY J:   Yes, thank you.  In relation to the sentencing point, is your point that his Honour erred by failing to secure a pre‑sentence report?  Is that the short point in the matter or is there something else?

MR ABDUL‑KARIM:   There was, your Honour, his failure to – or to putting different directors at certain points after Budscan.  That has been as a culpability, something that was taken into account as well as the degree of his culpability.  In other words, he can only be a director for five companies and then, after that, using his daughter’s name or his son’s name or his girlfriend’s name or Mr Jack, that is taken as his degree of culpability.

The other one is that, your Honour, yes – the other point that I make is that there was no pre‑sentence report regardless, although the sentence would have been a custodial sentence, but nevertheless, it would have been of assistance.

KIRBY J:   Yes, that was conceded, I think, that it would lead to a custodial sentence.

MR ABDUL-KARIM:   Yes, it is.

KIRBY J:   I just wanted to make sure that I understood the point on the sentence.

MR ABDUL‑KARIM:   Yes, it is, your Honour.

KIRBY J:   Thank you.  Mr Fagan, the Court does not need your assistance in this application. 

None of the points argued in support of this application cast doubt on the correctness of the conviction of the applicant.  We are unconvinced that there was any relevant miscarriage of justice in his trial or unfairness in the presentation of his case to the jury.  The matter does not appear to be a suitable vehicle for the consideration of the points under the Evidence Act, which the applicant urged were his best points in this Court. 

The prosecution’s case established that the applicant controlled the affairs of each of the companies involved; he was the mind and will of each of them.  Proof of dishonest intent on his part and of dishonest steps taken by him established the element of defrauding by each of the companies.  This, in turn, established the applicant’s knowing concern in the defrauding by each of those companies. 

None of the points raised on the conviction appeal has merit.  Nor are we convinced that the sentence, or procedures on sentence, require or justify the examination of this Court in the circumstances.  Accordingly, in this case, special leave is refused. 

AT 3.26 PM THE MATTER WAS CONCLUDED