Wharton v The Queen [No 2] - [2017] WASCA 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WHARTON -v- THE QUEEN [No 2] [2017] WASCA 164

CORAM: BUSS P
MAZZA JA
BEECH JA

HEARD: 13 FEBRUARY 2017
AND FURTHER WRITTEN SUBMISSIONS FILED UP TO 11 MAY 2017

DELIVERED : 4 SEPTEMBER 2017

FILE NO/S: CACR 209 of 2015

BETWEEN: STEPHEN LYNNE WHARTON
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
File No  :IND 435 of 2013

Catchwords:

Criminal law - Appeal against conviction - Where first appeal dismissed for failure to comply with springing order - Whether second appeal competent

Legislation:

Criminal Appeals Act 2004 (WA), s 40(l)(1)
Criminal Code (Cth), s 135.1(3)
Criminal Procedure Act 2004 (WA), s 85, s 132, s 178, div 2 sch 1 cl 4(1)(b), cl 5
Director of Public Prosecutions Act 1983 (Cth), s 9(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms P A Aloi & Mr L A Glenn

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (Cth)

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

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Ardrey v The State of Western Australia [2016] WASCA 154
Ascic v Bedworth [2015] WASCA 109
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434
Gandy v The State of Western Australia [2017] WASCA 93
Grierson v The King (1938) 60 CLR 431
Jones v Dunkel (1959) 101 CLR 298
JS v The State of Western Australia [2014] WASCA 177
Michael v The State of Western Australia [2007] WASCA 100
Michaels v The State of Western Australia [2009] WASCA 174
More v The Queen (1988) 86 Cr App R 234
Ponnambalam v The State of Western Australia [2015] WASCA 185
Postiglione v The Queen (1997) 189 CLR 295
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Brain [1999] SASC 358; (1999) 74 SASR 92
R v Gee [2003] HCA 12; (2003) 212 CLR 230
R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
The State of Western Australia v Wallam [2008] WASCA 117 (S)
Wharton v The Queen [2016] WASCA 21
Wharton v The Queen [No 2] [2015] WASCA 176
Williams v The King (No 1) (1933) 50 CLR 536
Williams v The King (No 2) (1934) 50 CLR 551

TABLE OF CONTENTS

BUSS P & MAZZA JA: 5

Background
The second appeal - relevant procedural history in detail

Hearing - 13 February 2017
Events post 13 February 2017

Is the second appeal competent?
R v Brain
Other submissions made by the appellant

Conclusion
If the second appeal was competent no extension of time was justified
Summary of the Crown case against the appellant
The defence case
Proposed ground 1 - different pathways to guilt
Proposed ground 2 - the indictment
The relevant legislative provisions
The indictment
The validity of an indictment
The authority to prosecute
AFS Equity Pty Ltd
Was the indictment insufficiently particularised
Amendment of the indictment
Another matter
Conclusion - proposed ground 2
Proposed ground 3 - failure to direct the jury on complex issues of trust law and the evidence of Paul Hutchins
Proposed ground 4 - unfair trial
The legal principles with respect to apprehended bias and the requirement of a fair trial
Conclusion and orders

BEECH JA: 42

ANNEXURE A

BUSS P & MAZZA JA:

Background

On 2 April 2014, the appellant was convicted after a trial before a judge and jury in the District Court of three counts of causing the preparation and lodgement at the Australian Taxation Office of trust tax returns which contained false information, with the intention of dishonestly causing a loss to the Commonwealth, contrary to s 135.1(3) of the Criminal Code (Cth). On 4 April 2014, the appellant was sentenced to 3 years' imprisonment with respect to each charge, to be served concurrently. Thus, the total effective sentence was 3 years' imprisonment. His Honour ordered that the sentence commence on 2 April 2014 and that, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the appellant be released after serving 2 years of the sentence upon him entering into a recognisance in the sum of $10,000 to be of good behaviour for 12 months.
On 24 April 2014, the appellant filed notices of appeal with respect to conviction (the first appeal) and sentence.
The appellant failed to prosecute these appeals. In particular, he failed to file and serve an appellant's case as required by the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) or to obey extensions of time granted to him. On 22 January 2015, a springing order was made in each appeal, the terms of which required him to file and serve his appellant's case by 4.00 pm on 28 April 2015, failing which the appeal was dismissed pursuant to r 43(2)(g)(ii) of the Rules.
The appellant was granted three extensions of time to comply with this order. The final extension, which was granted on 24 June 2015, extended the time for compliance to 20 July 2015. None of these orders was complied with. Thus, the first appeal and the appeal against sentence were dismissed on that day.[1]
[1] The order made 22 January 2015 and the extensions (made 23 April 2015, 15 May 2015 and 24 June 2015) were duly signed and sealed by the Acting Court of Appeal Registrar.
On 20 July 2015, the appellant filed an application in the first appeal to extend time to comply with the springing order. That application was heard by three judges of this court on 17 August 2015. The application was dismissed on 2 September 2015. The court's reasons for doing so are set out in Wharton v The Queen [No 2].[2] This court held that having regard to his failures to comply with the Rules and court orders, the appellant had acted in a contumelious manner.[3] The court also observed that, based on the material provided to it, there was no substance to the appellant's assertion that his proposed grounds of appeal were strong.[4] The effect of the court's decision was that the appeals remained dismissed. A Certificate of Conclusion of Criminal Appeal was issued in accordance with r 62 of the Rules.
[2] Wharton v The Queen [No 2] [2015] WASCA 176.
[3] Wharton v The Queen [No 2] [60].
[4] Wharton v The Queen [No 2] [61].
On 27 November 2015, the appellant filed another notice of appeal against conviction: CACR 209 of 2015 (the second appeal). The second appeal purports to appeal against the same convictions the subject of the first appeal.
Surprisingly, in light of the outcome in the first appeal, the appellant failed to file an appellant's case in accordance with the Rules. A springing order was made requiring the appellant to file and serve his appellant's case by 4.00 pm on 30 September 2016. Yet again, the appellant failed to comply with the springing order. Thus, the second appeal presently stands dismissed.[5]
[5] It appears that no Certificate of Conclusion of Criminal Appeal has been issued.
On 3 October 2016, the appellant applied for an extension of time to comply with the springing order made in the second appeal. This application was listed for hearing before three judges of this court. Prior to the hearing, the parties were notified by the court that there were two matters for determination. First, whether the second appeal was incompetent and, second, whether the application filed 3 October 2016 should be granted or dismissed.

The second appeal - relevant procedural history in detail

On 27 November 2015, the appellant filed his appeal notice. He then applied for bail pending appeal. On 18 January 2016, this application was dismissed: Wharton v The Queen.[6] In the course of his reasons, Mazza JA expressed doubt as to the competence of the appeal.[7]
[6] Wharton v The Queen [2016] WASCA 21.
[7] Wharton v The Queen [12].
The appellant failed to file and serve an appellant's case as specified by the Rules. On 22 March 2016, a Registrar's Notice to Attend was issued requiring the appellant's attendance on 7 April 2016 before a single judge of appeal to deal with the appellant's failure to file and serve his appellant's case.
On 1 April 2016, the appellant filed an application for an extension of time to file and serve his appellant's case. This application was supported by his affidavit sworn 31 March 2016 and filed 1 April 2016. In this affidavit, the appellant asserted that the first appeal had not been determined on its merits. Accordingly, he claimed, he had the right to a further hearing of the appeal that he considered had not been rightfully concluded (pars 13 to 15). He referred to 'difficulties and distractions' he had encountered in preparing his appellant's case (par 6). He said that upon his release on 1 April 2016 from the sentence that he was serving, 'the issues constraining' him from filing his appellant's case should 'vastly improve' (par 18). On 1 April 2016, the day on which the appellant was released from prison, an order was made granting the appellant an extension of time to file and serve his appellant's case to 31 May 2016. The hearing listed for 7 April 2016 was vacated.
The appellant failed to file his appellant's case by 31 May 2016. Consequently, on 20 July 2016, after hearing from the parties, a springing order was made, the effect of which was that unless the appellant filed and served an appellant's case by 4.00 pm on 30 September 2016, the second appeal was dismissed. The appellant failed to file and serve an appellant's case in accordance with the springing order. Accordingly, the second appeal presently stands dismissed.
On 3 October 2016, the appellant filed an application dated 30 September 2016 for an extension of time to comply with the springing order. This court has the power to grant such an extension even where the time for compliance has passed.[8] The application was supported by the appellant's affidavit sworn 3 October 2016. In this affidavit the appellant stated that he had been unable to file his appellant's case because:
(a)His laptop computer is old and has various 'technical issues'.
(b)He is self‑represented.
(c)The atmosphere in the house in which he was living in Melbourne was 'tense and tenuous'.
(d)He had encountered various difficulties with members of his family.
(e)He had spent long hours trying to re‑establish himself in business and in attempting to earn a living.
[8] Wharton v The Queen [No 2] [48].
He explained that he had done 'a substantial amount of work' on his appellant's case, but more work was still required. The appellant claimed that he had 'a fundamental right' to a hearing of his appeal upon the merits (which he had not received in the first appeal) and that it was in the interests of justice for an extension of time to be granted. He sought an extension to 30 November 2016. He said, 'I fully expect to be able to complete the Appellant's Case by this date'.
On 24 October 2016, the following orders were made:
1.The appellant file and serve any further affidavit he wishes to rely upon and written submissions with respect to the competency of his second appeal and the merit of his application, filed 3 October 2016, by 4.00 pm on 31 October 2016.
2.The respondent file and serve any affidavit in response and its written submissions in answer by 4.00 pm on 7 November 2016.
3.The matter be heard on an expedited basis by a bench of three judges on a date to be fixed.
The appellant failed to comply with order 1 by the due date.
On 9 November 2016, a Registrar's Notice to Attend Court was issued to the parties. The notice required the attendance of the parties on 13 February 2017 to consider:
1.The Appellant's application dated 30 September 2016 for an extension of time to file and serve the Appellant's Case.
2.Whether the appeal should be struck out on the basis that it is incompetent.
Also on 9 November 2016, the appellant filed an affidavit and written submissions in purported compliance with order 1 of the orders made on 24 October 2016. In the affidavit the appellant proffered various explanations for his failure to comply with the springing order. In large measure, the appellant repeated the matters set out in his affidavit of 30 September 2016.
The submissions which accompanied the affidavit asserted that the second appeal was competent. This was because:
(a)the court's decision in respect of the first appeal was wrong; and
(b)he had been denied procedural fairness in that he had the right to an appeal on the merits which determined each of his proposed grounds of appeal.
In respect of the grounds of appeal, the appellant claimed they were 'strong'.
The appellant did not file a draft appellant's case before the hearing on 13 February 2017.

Hearing - 13 February 2017

At the hearing on 13 February 2017, the appellant informed this court that he had prepared his appellant's case, having 'finalised it' the night before.[9] He said that he had 'slimmed the grounds down to four grounds'.[10]
[9] Appeal ts 30.
[10] Appeal ts 31.
With respect to the competency of the second appeal, the appellant submitted, in substance, that it was not incompetent because, although there was only a single right of appeal under the Criminal Appeals Act 2004 (WA) (CAA), that right is only exhausted where the appeal has been determined on the merits.[11] As the first appeal was dismissed by reason of his failure to comply with the Rules and court orders and not on the merits, the second appeal was competent.
[11] Appeal ts 34.
The appellant submitted that his position was analogous to that of the appellant in the South Australian case of R v Brain.[12] In that case, the court, in the exercise of its inherent jurisdiction, allowed an appellant to file a new appeal. The appellant's first appeal had been dismissed without a hearing on the merits because he had failed to attend the hearing.
[12] R v Brain [1999] SASC 358; (1999) 74 SASR 92.
The appellant also submitted that if the second appeal was competent, he should be given an extension of time to comply with the springing order that had been made because of various difficulties he had encountered in the preparation of the appeal, including those referred to earlier in these reasons, and because he was now in a position to file a draft appellant's case. He further asserted that the four grounds of appeal he wished to rely on had a reasonable prospect of success.[13]
[13] Appeal ts 40.
The respondent submitted that the second appeal was incompetent because the appellant's first appeal had been dismissed. If the second appeal was competent, the respondent submitted that the extension of time should be refused.
At the conclusion of the hearing on 13 February 2017, the court made these orders:
(1)The appellant has leave to file and serve by 4.00 pm on 15 February 2017 an affidavit annexing his proposed appellant's case.
(2)The respondent may file and serve by 4.00 pm on 8 March 2017 written submissions as to the merits of the proposed appellant's case.
(3)The appellant may file and serve by 4.00 pm on 15 March 2017 written submissions in reply to the respondent's written submissions.
(4)Judgment is reserved in relation to both of the matters referred to in the registrar's notice to attend dated 9 November 2016.

Events post 13 February 2017

On 15 February 2017, the appellant filed an affidavit in which he annexed his draft appellant's case. As foreshadowed by the appellant, it is evident from this document that he proposes to rely on four grounds of appeal. Ground 1 alleges that he has suffered a miscarriage of justice by reason of his Honour's alleged failure to direct the jury that there needed to be unanimous agreement as to the act which constituted the element of dishonesty in each charge. Ground 2 alleges that the indictment was 'unlawful' because it did not comply with certain provisions in the Criminal Procedure Act 2004 (WA) (CPA). As a result, his trial was 'null and void or a nullity'. Ground 3 alleges that the appellant has suffered a miscarriage of justice 'by the failure of [the trial judge] to direct the jury on complex issues of trust law' and by his Honour failing to exclude 'the inadmissible evidence of witness Paul Hutchins'. Ground 4 alleges that the appellant suffered an unfair trial by reason of the aggregation of a number of matters, particularly in connection with the manner in which the trial was conducted by his Honour. The appellant claims that his Honour 'could have been perceived by the jury as siding himself with the prosecution'. In essence, he claims that his Honour was actually biased against him, or alternatively, his conduct gave rise to a reasonable apprehension of bias. The written submissions run for over 60 pages - more than triple the number of pages permitted by the Rules.[14]
[14] Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(5)(d).
The respondent sought and was given an extension of time to prepare written submissions as to the merits of the draft appellant's case. On 9 March 2017, Buss P ordered that:
1.The time for the respondent to file and serve written submissions as to the merits of the proposed appellant's case be extended to 7 April 2017.
2.The time for the appellant to file and serve written submissions in reply to the respondent's submissions be extended to 14 April 2017.
On 5 April 2017, the respondent filed its written submissions with respect to the merits of the proposed appellant's case.
The appellant sought an extension of time to file and serve his submissions in reply to the respondent's submissions.
On 20 April 2017, Buss P ordered that the time for the appellant to file and serve submissions in reply to the respondent's submissions as to the merits of the proposed appellant's case be extended to 28 April 2017. The appellant filed his reply on 11 May 2017, a further extension having been granted by Buss P.

Is the second appeal competent?

The first question to be addressed is whether the second appeal is competent. The short answer is, 'No'.
The first and the second appeal deal with the same conviction. The first appeal was dismissed by order of this court. The order was perfected.
An appeal is entirely a creature of statute. If a right exists to a second (or subsequent) appeal against the same decision the subject of the first appeal, the right must be found in the governing legislation.[15] The governing legislation in this case is the CAA, which covers the field in respect of appeals against statutory offences: Allbeury v Corruption and Crime Commission.[16] The CAA applies to Commonwealth offences.[17]
[15] Grierson v The King (1938) 60 CLR 431 and Postiglione v The Queen (1997) 189 CLR 295, 300, 315.
[16] Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [16]; JS v The Stateof Western Australia [2014] WASCA 177 [4].
[17] Judiciary Act 1903 (Cth), s 68; Williams v The King (No 1) (1933) 50 CLR 536, 548; Williams v The King (No 2) (1934) 50 CLR 551, 558, 560; R v Gee [2003] HCA 12; (2003) 212 CLR 230 [6], [180].
Part 3 of the CAA confers a right of appeal on a person who is convicted in a superior court, subject to the requirement of obtaining leave under s 27. On a proper construction of the CAA, pt 3 of the CAA confers one, but only one, right of appeal. That has been recognised in decisions of this court.
In JS v The State of Western Australia,[18] the appellant was convicted after trial of indecent dealing with a child under the age of 13 years. An appeal against conviction was considered on its merits and dismissed. An application for special leave to appeal to the High Court was refused. Subsequently, the appellant filed a further appeal in this court against the same convictions. The court (McLure P, with whom Buss and Mazza JJA agreed) held that there was nothing in the text, context or purpose of the CAA to provide an arguable foundation for the claim made by JS that he could appeal more than once against the same conviction.[19] See also Ascic v Bedworth.[20]
[18] JS v The State of Western Australia [2014] WASCA 177.
[19] JS v The State of Western Australia [5].
[20] Ascic v Bedworth [2015] WASCA 109.

In JS v The State of Western Australia, this court also rejected the appellant's application to reopen the first appeal to permit the appellant to raise new grounds of appeal, holding that there was no power to do so.[21] That is consistent with the decisions of the High Court in Grierson v The King, Postiglione v The Queen, Burrell v The Queen[22] and the decision of this court in The State of Western Australia v Wallam,[23] which held that there was no power to reopen an appeal when it has been dismissed and the order to that effect has been perfected.
[21] JS v The State of Western Australia [3], [13] - [14].
[22] Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218.
[23] The State of Western Australia v Wallam [2008] WASCA 117 (S) [6] ‑ [17].
As the appellant has pointed out, JS v The State of Western Australia and the other authorities we have just mentioned were cases where the appeal had been determined on its merits. The appellant submits that, as the first appeal was not determined on its merits, he was at liberty to commence the second appeal.
We accept that the first appeal was not determined on its merits. However, that does not lead to the conclusion that the appellant has the right to commence a second appeal. To the contrary, it does not detract from the proposition that the CAA provides for one and only one appeal.
It was so held by this court in Ponnambalam v The State of Western Australia.[24] In that case, the appellant commenced a second appeal against a sentence that had been the subject of an earlier appeal. The earlier appeal had been discontinued. The court (McLure P, Newnes and Mazza JJA) reiterated that the CAA provides for one and only one appeal. The fact that the first appeal had not been determined on its merits, because it was discontinued, did not alter that position. Thus, Mr Ponnambalam's second appeal was incompetent.[25] The court also held that where an appeal has been concluded by a notice of discontinuance, the court has a discretionary power, pursuant to s 40(1)(l) of the CAA, to permit an appellant to withdraw the notice.
[24] Ponnambalam v The State of Western Australia [2015] WASCA 185.
[25] Ponnambalam v The State of Western Australia [30] - [31].
Returning to the present case, the statutory framework applicable to the first appeal was set out in Wharton v The Queen [No 2],[26] which, for convenience, we will repeat:
[26] Wharton v The Queen [No 2] [2015] WASCA 176 [40] ‑ [47].
An appeal from a superior court such as the District Court must be commenced and conducted in accordance with pt 3 of the Criminal Appeals Act2004 (WA) and the rules of court: s 28(1) of the Criminal Appeals Act.
The rules which apply to any matter or cause over which this court has jurisdiction are the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules): r 3 (1) and r 4(1) of the Rules. The Rules must be read with the Rules of the Supreme Court 1971 (WA) (the RSC): r 5(1) of the Rules. Rule 5(4) of the Rules provides:
The RSC Order 3, other than rules 2(2) and 5(3), applies for the purposes of these rules.
Relevantly to this appeal, O 3 r 5(1) and r 5(2) of the RSC provide:
5.Extending and abridging time
(1)The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.
(2)The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.
Subject to the court's power to extend time, an appeal under pt 3 of the Criminal Appeals Act must be commenced within 21 days after the date of the decision or judgment: s 28(3) of the Criminal Appeals Act. Where a person is sentenced on a date which is not the date of conviction, time under s 28(3) runs from the date of sentencing: s 28(4) of the Criminal Appeals Act.
A criminal appeal is commenced by the filing and service of an appeal notice, which includes a statement of proposed grounds of appeal: r 28(1) of the Rules; Form 1. Where applicable, the appeal notice is to be filed with an application for an extension of time within which to appeal, together with a supporting affidavit deposing to why the appeal was not commenced within time: r 28(2) of the Rules.
After an appeal notice is filed, an appellant must file an appellant's case: r 32(1) of the Rules; Form 7. An appellant's case in a criminal appeal comprises a number of documents, including the grounds of appeal, the appellant's submissions, legal authorities and orders sought: r 32(3)(b) of the Rules. That document must be filed 'within 35 days after the date on which the appeal notice is filed': r 32(2)(b) of the Rules. However, this court's practice in criminal appeals is to allow an appellant's case to be filed within 56 days after the filing of the appeal notice. This is to allow sufficient time for an appellant who requires legal aid or other assistance to prepare his or her appellant's case.
The jurisdiction of a single judge of this court under the Rules is set out in r 43. Relevantly, r 43(2)(g) gives a single judge jurisdiction:
to dismiss the appeal if -
(i)none of the grounds of appeal has a reasonable prospect of succeeding; or
(ii)the appellant has not obeyed these rules or any order made under them.
Rule 43(2)(l) of the Rules gives a single judge jurisdiction:
to make any order that is necessary or convenient to make as a result of an order made under any of the above paragraphs.
It is the power to extend time pursuant to O 3 r 5(1) and r 5(2) RSC which enables this court to extend time to comply with a springing order even though the time for compliance has passed.[27]
[27] Wharton v The Queen[No 2] [48].
In his submissions the appellant did not refer to this statutory framework and did not address the existence of the right to a second appeal by reference to the CAA.
It is manifest from that framework that any 'right' an appellant has to a decision on the merits in an appeal must be exercised subject to the Rules, court orders and procedures which apply.[28] Further, the court has the power to dismiss an appeal, without a determination on the merits, where the appellant does not obey the Rules or any court order. Such a measure is consistent with the proper administration of justice and the maintenance of the authority of the court. It would be inconsistent with these objectives, and would completely undermine them, if an appellant was permitted to commence a second appeal where the first appeal had been dismissed because the appellant did not comply with the Rules or court orders. There is nothing in the CAA which allows the bringing of a second appeal where the first appeal has been dismissed for failure to comply with the Rules or court orders. To the contrary, the evident intention revealed by the CAA that a convicted person has a right to one and only one appeal against conviction is not qualified by reference to the reasons for the dismissal of the (first) appeal or by reference to whether the dismissal followed a determination of the merits of the appeal. Accordingly, the second appeal is incompetent.
[28] Wharton v The Queen[No 2] [61].

R v Brain

The appellant cited R v Brain as authority for the proposition that a second appeal is incompetent only if the first appeal has been considered on the merits. His reliance upon this case is misplaced. In R v Brain, the appellant appealed against a sentence imposed upon him by the District Court of South Australia in 1990. On 28 November 1990, the appeal was struck out and dismissed because the appellant, who had been released on bail pending appeal, continually failed to appear, in breach of his bail conditions. In 1998, he applied for an order setting aside the dismissal of his appeal. The Court of Criminal Appeal (Doyle CJ, Bleby and Wicks JJ) set aside the order dismissing the appeal, allowed the appeal and set aside the sentence imposed by the District Court. Doyle CJ, with whom Bleby and Wicks JJ agreed, held that the Court of Criminal Appeal had the power to revoke an order dismissing an appeal against sentence where the merits of the appeal had not been heard at all. His Honour held that the right of appeal conferred by s 352(1) of the Criminal Law Consolidation Act 1935 (SA) permitted only one appeal against conviction and one appeal against sentence.[29] He denied the assertion of a general jurisdiction to reopen an appeal once the appeal had been finally disposed of. Doyle CJ noted that there were two limited exceptions to this rule, both of which are not relevant to the present case and need not be described.
[29] R v Brain [46].
Thus R v Brain provides no support for the appellant's assertion that if there is no determination of the merits of an appeal there is a right to bring a second appeal.
Doyle CJ held that the court had the inherent power to revoke the order summarily dismissing the appeal against sentence. In doing so, he noted that he had not found any previous case dealing with the circumstances then before the court. He said that the power was available to be exercised in the interests of justice and 'in very limited circumstances'.[30] In the alternative, his Honour considered that the power conferred by r 21 of the Supreme Court Criminal Appeal Rules 1996 (SA) was wide enough to invest the court with the relevant power.
[30] R v Brain [76].
The appellant's first appeal is not before this court. What is before this court, and all that is before this court, are the questions of whether this (second) appeal is incompetent and, if it is not, whether the time for compliance with the springing order in this appeal should be extended.[31] Thus it is not necessary to consider the extent to which there is room, in this State, for reasoning analogous to the reasoning in R v Brain as to the court's power to set aside or revoke a perfected order dismissing the (first) appeal. No such application is before this court. For present purposes it is enough to observe that the cases to which we have referred suggest there is, at the least, room for considerable doubt as to whether this court would have any power to set aside the court's dismissal of the appellant's first appeal.
[31] Appeal ts 38.
Even if this court had the inherent power to set aside the dismissal of the first appeal, we would not exercise it in the appellant's favour. In Wharton v The Queen [No 2], the court observed that the appellant was given a great deal of latitude and many opportunities to put his case before this court in the first appeal. He steadfastly and contumeliously refused to do so. Nothing in the appellant's submissions and evidence in this appeal undermines that conclusion. It would seriously undermine the authority of this court if, notwithstanding the decision and reasons in Wharton v The Queen [No 2], this court set aside the dismissal of the first appeal. It would not be in the interests of justice for this to occur.

Other submissions made by the appellant

We will shortly address the submissions made by the appellant in the document filed on 9 November 2016 and referred to in [19] of these reasons. The appellant did not seek special leave to appeal to the High Court in respect of Wharton v The Queen [No 2]. Apart from asserting the decision is wrong he has not sought to justify his submission. There is no basis whatever to doubt the correctness of the decision. Nor is there any basis for the assertion that he was denied procedural fairness in the first appeal.

Conclusion

The appellant has only one right of appeal against conviction under the CAA. That right of appeal was exercised and has been exhausted. The court has no power to set aside the dismissal of the first appeal and the appellant has no right to bring a second appeal. The second appeal is incompetent and must be dismissed.

If the second appeal was competent no extension of time was justified

If, contrary to the conclusion just expressed, the second appeal is competent, we would dismiss the appellant's application of 30 September 2016 seeking an extension of time to comply with the springing order made on 20 July 2016.
The relevant principles to be applied in the determination of applications of this kind were set out in Wharton v The Queen [No 2] [48] ‑ [52]. It is unnecessary to repeat what was written on that occasion. It is enough to say that the making of a springing order is intended to mark the 'end of the line' for a party who has failed to comply with it and previous court orders. It is the last opportunity for a party to put its case in order. The power to extend time when a springing order has not been complied with is a power to be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. There is a heavy onus on a party the subject of a springing order to show that an extension of time should be granted. Amongst the criteria to be considered is whether the defaulting party has a reasonably arguable case on the merits, although the fact that a party does have a case on the merits does not necessarily insulate that party from the consequence of default.
We have already outlined the circumstances in which the springing order in the second appeal was made. In light of what occurred in the first appeal, it beggars belief that in the second appeal the appellant did not file his appellant's case as required by the Rules and, similarly, that he failed to comply with the orders made on 1 April 2016. It is astounding that he failed to comply with the springing order.
The various affidavits filed by the appellant do not adequately explain his default. The affidavits and the appellant's conduct display the same kind of contumelious disregard for the Rules and this court's orders as was observed in the first appeal. For these reasons alone we would dismiss the appellant's application.
However, to put the matter beyond any doubt, we have considered the merits of the appellant's proposed grounds of appeal and the arguments in support of them as set out in the draft appellant's case annexed to his affidavit filed on 15 February 2017. In our opinion, none of the proposed grounds of appeal have a reasonable prospect of succeeding and the second appeal is futile. We will, as briefly as we can, explain why we have come to this conclusion. Before dealing with the proposed grounds of appeal it is necessary to say something about the cases put by the parties at trial.

Summary of the Crown case against the appellant

In brief terms, the Crown's case against the appellant was as follows. The appellant is an accountant who owned and controlled a business in Victoria called Wharton Advisory. In about 1995, the appellant became associated with a man named Gregory Dunn. Mr Dunn designed and promoted taxation schemes for those who wished to avoid or reduce the incidence of taxation. The charges against the appellant were committed in the context of one such scheme, the objective of which was to evade the incidence of income tax for two of Mr Dunn's clients, Mr S and Mr B.
The scheme devised by Mr Dunn in which the appellant and a third man named Peter Hutchins participated involved a series of sham distributions of money from trusts controlled by Mr S and Mr B to trusts controlled, in turn, by Mr Dunn, then the appellant and then Mr Hutchins. More precisely, various trusts controlled by Mr S and Mr B purportedly made distributions to the Keyrange Unit Trust, the trustee of which was Keyrange Pty Ltd (Keyrange). Keyrange and the Keyrange Unit Trust were controlled by Mr Dunn. Sums of money which totalled close to the sums of money paid by or on behalf of Mr S and Mr B to the Keyrange Unit Trust were then purportedly distributed to the Equity Holdings Trust, the trustee of which was A.F.S. Equity Pty Ltd (AFS Equity). The Crown's case was that this trust and AFS Equity were controlled by the appellant via an employee of his, Mr John Gillies. These moneys were then purportedly distributed to the A Alpha Unit Trust, the trustee of which was Galapoint Pty Ltd (Galapoint). The Crown alleged that these entities were controlled by Mr Peter Hutchins until his death in late December 2002. Thereafter they were controlled by his son, Mr Paul Hutchins. The Crown case was that Mr Peter Hutchins controlled a number of other unit trusts, including one located in the British Virgin Islands called the Finito Unit Trust. However, the distributions that were notionally made by AFS Equity to Galapoint were not the subject of any further notional distribution.
As we have said, the Crown's case was that the various distributions were a sham. In other words, the moneys said to have originated from the trusts controlled by Mr S and Mr B were never actually paid to Keyrange, nor were the distributions made to AFS Equity or Galapoint. According to the Crown, the only moneys that changed hands were 'commission' payments made to Keyrange. Keyrange, in turn, made 'commission' payments to AFS Equity. It was said that these payments were 'kickbacks' paid to the appellant. Those payments amounted to 7% or 8% of the moneys that were notionally distributed each financial year to AFS Equity. No 'commission' appears to have been paid to Galapoint.
The three alleged offences were said by the Crown to have been committed in these circumstances. In or about March 2005, the appellant was serving a term of imprisonment in Western Australia imposed upon him in 2004 in respect of an offence of conspiracy to defraud the Commonwealth (the 2004 conviction). While in prison, he instructed Mr Gillies to prepare trust tax returns for the Equity Holdings Trust for the financial years ending 30 June 2002, 2003 and 2004. Those instructions included details as to the sums that were to be distributed by the trustee, AFS Equity, to Galapoint as a beneficiary. Mr Gillies did as he was told. He ultimately prepared, signed and lodged with the Australian Taxation Office the trust tax returns.
Count 1 on the indictment concerned the 2002 trust tax return. According to it, the only income received was $13,923,198 which was stated to be a distribution from a trust. In the statement of distribution in the return, all of that income was said to have been distributed to Galapoint.
Count 2 on the indictment concerned the 2003 trust tax return. According to it, the only income received was $1,843,825 which was stated to be a distribution from a trust. In the statement of distribution in the return, all of that income was said to have been distributed to Galapoint.
Count 3 on the indictment concerned the 2004 trust tax return. According to it, the only income received was $767,477, which sum was stated to be a distribution from a trust. In the statement of distribution, all of that income was said to have been distributed to Galapoint.
The Crown led evidence from an expert in taxation employed by the Australian Taxation Office, Mr Mark Barrington. He explained that the 'taxing point' for income of a trust is the beneficiary where income flows through the trust and is distributed to a beneficiary. Alternatively, the 'taxing point' is the trust itself where income is retained by the trust. In other words, when income is passed through the trust and onto a beneficiary, the trust itself is not liable to pay income tax.
Mr Barrington explained that the statement of distribution in a trust tax return, in effect, requires the trustee to inform the Australian Taxation Office if it has passed any of the trust's income to a beneficiary so that the Australian Taxation Office knows where to apply income tax upon that income.
The Crown alleged in respect of each offence that the appellant caused each tax return to be prepared, signed and lodged with the Australian Taxation Office, knowing that it contained false information. The alleged false information was that all of the trust income paid to AFS Equity as trustee for the Equity Holdings Trust was distributed to Galapoint when in fact that did not happen. The Crown adduced evidence to the effect that the sums said to have been distributed to the Equity Holdings Trust as income were not in fact paid; further, that no distribution was made by the Equity Holdings Trust to Galapoint. The Crown case was that the only moneys paid were 'commissions' of 8% in respect of count 1 and 7% in respect of counts 2 and 3. The Crown adduced evidence that the 'commissions' were treated by the appellant as his own.

The Crown also adduced evidence from Mr Paul Hutchins that, after his father's death in February 2003, he met with the appellant and told him that no more distributions were to be made to entities that had previously been controlled by his late father.[32] Mr Paul Hutchins also testified to the effect that he was unaware of any of the distributions purportedly made by Equity Holdings Trust to the A Alpha Unit Trust.
[32] ts 230.
The Crown adduced evidence from two accountants who had worked with Mr Dunn, namely Mr Thomson and Mr Hewitt. Mr Thomson testified about his dealings with Mr Dunn and the trust distribution made by Mr S and Mr B in 2002 to the Keyrange Unit Trust which eventually flowed through to the Equity Holdings Trust. It was by this way that Mr S and Mr B disposed of all of the profit that they had earned through their business activities for that financial year.
Mr Hewitt testified that he met the appellant in February 2003.[33] He completed Mr Dunn's income tax returns for the year ending 30 June 1997.[34] As a result of this, he became aware that in 1995 and 1996 Mr Dunn conducted a scheme of trust distributions similar to the scheme engaged in by Mr Dunn and the appellant. Mr Hewitt also completed the tax returns for Mr Dunn for the Keyrange Unit Trust for the 2002 financial year. He understood that the Equity Holdings Trust was to be the ultimate beneficiary who would be liable to pay income tax. He was later informed that the ultimate beneficiary was the Finito Trust in the British Virgin Islands.[35]
[33] ts 708.
[34] ts 706.
[35] ts 746.
Mr Bowler, an Australian Taxation Office auditor, testified that if there was no valid distribution of income as stated in the trust tax returns for Equity Holdings Trust, then the total tax payable by the trustee for that trust, AFS Equity was $6,752,752.03 for 2002,[36] $894,255.12 for 2003[37] and $372,226.34 for 2004.[38]
[36] ts 831.
[37] ts 831.
[38] ts 832.
Ms Debets, another Australian Taxation Office auditor, found no communications, documents or records that showed trust distributions from the Equity Holdings Trust for the 2002 and 2003 financial years. She concluded that Galapoint ceased trading in the financial years after 2002.[39] The Crown led evidence that in fact Galapoint was deregistered on 14 August 2005.[40]
[39] ts 1005 - 1006.
[40] ts 240.
The Crown case was that the appellant and Mr Dunn were in contact with each other in 2005 and 2006. It alleged that the appellant was aware of the trust distribution scheme devised by Mr Dunn for the purpose of Mr S and Mr B avoiding the payment of income tax. The Crown further alleged that he caused Mr Gillies to prepare and lodge with the Australian Taxation Office trust tax returns for the financial years 2002, 2003 and 2004 which contained false information and that he did so to dishonestly cause a loss of income tax to the Australian Taxation Office and thereby the Commonwealth.
The Crown was permitted to adduce propensity evidence pursuant to s 31A of the Evidence Act in support of its case. This evidence comprised the 2004 conviction to which we have already referred and a further conviction in 2010 in the County Court of Victoria. The 2004 conviction was relevant because there were similarities between the scheme the subject of that offence and the present case. The 2004 conviction concerned what was referred to as the 'Servcom fraud' which had some similarities to the scheme the subject of the present charges in that the appellant and others conspired to use trust structures to avoid the payment of income tax. It was said that the 2004 conviction demonstrated a propensity on the appellant's part to act unlawfully and dishonestly in relation to taxation matters by means of schemes and arrangements designed to avoid the payment of tax and for which he earned fees.
The 2010 conviction concerned false evidence the appellant gave in 2006 in an examination conducted by the Australian Crime Commission concerning conversations he had with Mr Dunn in that year. This evidence was adduced to rebut the notion that the appellant was an innocent dupe of Mr Dunn and showed the close nature of their relationship.

The defence case

The appellant elected to give evidence in his defence. In essence, he claimed that he had not acted dishonestly with respect to the preparation of the trust tax returns the subject of the counts on the indictment. He said that the trust tax returns were not completed for the purpose of evading income tax, but rather they were to be used in support of a loan application. He denied that the information contained in the income tax returns was false. He attacked the credibility of Mr Gillies and Mr Paul Hutchins.

Proposed ground 1 - different pathways to guilt

Proposed ground 1 alleges that in relation to each count on the indictment the prosecution relied on a number of different particulars of alleged dishonesty. It is said that these amounted to different pathways to guilt and that his Honour was obliged to, but failed to, direct the jury that in order to convict the appellant of an offence it had to be unanimously agreed as to the 'pathway' (separate pathways direction). As a result, it is claimed that the appellant has suffered a miscarriage of justice. In support of this proposition, the appellant cited Fermanis v The State of Western Australia[41] and Ardrey v The State of Western Australia.[42]
[41] Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434.
[42] Ardrey v The State of Western Australia [2016] WASCA 154.
The appellant's written submissions in support of proposed ground 1 do not clearly articulate the alleged separate pathways which required the claimed direction. At one point in the submissions the appellant states that there were 'at least three pathways'[43] and later he sets out an additional five 'other pathways'.[44]
[43] Draft appellant's case par 87.
[44] Draft appellant's case par 91.
His Honour directed the jury that the Crown case was that in each of the trust tax returns filed for the Equity Holdings Trust, the statement made in the statement of distribution to the effect that all of the income had been distributed to Galapoint was false and that the statement of distribution did not reveal the 7% or 8% commission which the appellant kept.[45] This direction was consistent with the Crown's opening and closing addresses and correctly put the Crown case at trial. Defence counsel took no exception to it.
[45] ts 1430.
His Honour gave an orthodox and unchallenged direction that the jury's verdicts had to be unanimous. However, he did not give a separate pathways direction, nor did the appellant's experienced trial counsel seek such a direction. In our opinion, his Honour was not required to give the direction.
The law as to when a separate pathways direction is required has been discussed in a number of recent cases decided by this court. The appellant referred to Fermanis and Ardrey. To those may be added Michaels v The State of Western Australia[46] and Gandy v The State of Western Australia.[47]
[46] Michaels v The State of Western Australia [2009] WASCA 174.
[47] Gandy v The State of Western Australia [2017] WASCA 93.
Cases that require a separate pathways direction are comparatively rare and arise when it emerges at some stage in the course of the trial or as a result of a question asked by a jury that there was a risk of a disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved.[48] It has never been the law that individual jurors must agree on every matter before reaching a verdict. Nor has it been held that the concept of the unanimous verdict requires each juror to be satisfied that the prosecution has established its case in one particular way.[49]
[48] See Ardrey [50] where Buss P cites with apparent approval More v The Queen (1988) 86 Cr App R 234.
[49] Gandy [84].
Where there are alternative legal formulations of liability which rest on the same or a substantially similar factual foundation and which do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict; it is not necessary that all members of the jury arrive at the same verdict by the same pathway.[50]
[50] Michaels [10].
A practical test of this distinction which has been cited on occasion is the opinion expressed by Professor Sir John Smith in his paper, 'Satisfying the jury' (1988) Criminal Law Review 335, 344 where he proposed a principle of general application that when the prosecution allege more than one factual basis for the crime charged and it is not possible to say 'if it was not the one, then it must have been the other', the jury should always be directed that they must all be satisfied as to the one basis or all satisfied as to the other, or both.[51]
[51] Michaels [12].
The present case is one where the appellant's liability relied on the same or a substantially similar factual foundation and did not involve materially different issues or consequences. The representation made in each of the relevant trust tax returns was, in essence, that all of the trust income paid to AFS Equity as trustee for the Equity Holdings Trust was distributed to Galapoint. As we have said, one of the ways the State sought to prove this was to adduce evidence that no sum of money had ever been paid to AFS Equity. An aspect of the proof of this proposition was that the only sums paid to AFS Equity were the 7% or 8% commission which wound up in the hands of the appellant. The different pathways, insofar as they have been identified by the appellant, were merely evidentiary and did not involve materially different issues or consequences. The alternative legal formulations of liability as posited by the appellant also satisfied the practical test identified by Professor Smith.
Proposed ground 1 has no reasonable prospect of succeeding.

Proposed ground 2 - the indictment

The proposed ground, shorn of its 20 particulars, is as follows:
The Indictment that was presented was unlawful because it is not framed correctly as required under (in breach of) the Criminal Procedure Act 2004 (WA) under sections 3(1), 23, 85(2) and Schedule 1 (Prosecution Notices and Indictments) Division 2 clauses 5(1) and 6(12) or in accordance with the common law and therefore was void, or a nullity and purported amendments as to extended criminal responsibility of the Appellant under Division 11 of Part 2.4 of the Criminal Code that were allowed were not in accordance with the law with the consequence that the Indictment and the trial was invalid, null and void or a nullity.
The particulars and written submissions in support of this proposed ground are difficult to understand. It appears that the appellant alleges the indictment upon which he was tried was invalid. Consequently, he says, the jurisdiction of the court below was not engaged, his trial was a nullity and the convictions must be set aside.
The appellant, in essence, alleges that the indictment was defective in five respects:
1.The person who signed the indictment was not authorised to sign it.
2.The company referred to in each count on the indictment was wrongly described as AFS Equity Pty Ltd instead of 'A.F.S. Equity Pty Ltd'.
3.The company described in the indictment as AFS Equity Pty Ltd was not identified by its ACN under the Corporations Act 2001 (Cth) as required by cl 4(1)(b) of sch 1 div 2 of the CPA.
4.The indictment was insufficiently particularised because 'it does not particularise anything in respect of the false information purportedly contained in the tax returns or the elements of offending by the appellant under the extended criminal responsibility provisions'.
5.The indictment was not properly amended at the trial.

The relevant legislative provisions

Before dealing with the ground, it is necessary to set out the relevant statutory provisions.
Section 3(1) CPA defines the word 'indictment' to mean a document that contains one or more indictable charges, complies with s 85(2) and is lodged with a superior court (which in this case is the District Court).
Section 83(2) CPA provides that to commence a prosecution in a superior court for an indictable offence, an indictment that alleges the offence must be lodged with the court. Section 83(1) states that a prosecution in a superior court for an indictable offence 'may only be commenced by an authorised officer acting in the course of his or her duties'.
Section 85 CPA relevantly states:
85. Indictments, formal requirements and service of
(1)Schedule 1 has effect in relation to indictments and charges in them.
(2)An indictment must -
(a)be in writing in a prescribed form; and
(b)comply with Schedule 1 Division 2; and
(c)be signed by an authorised officer; and
(d)be lodged in the prescribed manner.
(3)…
(4)…
The relevant parts of sch 1 div 2 CPA are cl 4(1)(b) and cl 5. Clause 4(1)(b) states:
4. Accused to be identified
(1)A prosecution notice or indictment must identify the accused -
…
(b)if the accused is a corporation, by means of its name and, if it has one, the ACN given to it under the Corporations Act 2001 of the Commonwealth.
Clause 5 provides:
5. Alleged offence to be described
(1)A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -
(a)describe the offence with reasonable clarity; and
(b)identify the written law and the provision of it that creates the offence; and
(c)identify with reasonable clarity -
(i)the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and
(ii)where the offence was committed;
and
(d)if the offence is one against a person, identify the person concerned in accordance with clause 6(2); and
(e)if the offence relates to property, comply with clause 6(4) and (5).
(2)For the purposes of subclause (1) -
(a)it is sufficient to describe an offence in the words of the written law that creates it; and
(b)if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out; and
(c)a charge is not defective only because an element of the offence is not stated; and
(d)it is not necessary to allege -
(i)any matter, or any particulars as to a person or thing, that need not be proved; or
(ii)the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.
Section 131(3) CPA empowers a court to order a prosecutor to give an accused further particulars of a charge.
Section 132 CPA empowers a court to amend a charge.
Section 178 CPA concerns, relevantly, defects in an indictment. It is in these terms:
178. Defects etc. in court documents
(1)In this section, unless the contrary intention appears -
court document means a prosecution notice, indictment, summons, court hearing notice, section 155 notice, witness summons, warrant, or an order or other document issued by a court in a case.
(2)Any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor’s opening address.
(3)If a court document is defective in substance or form, the court, on an application by a party or on its own initiative —
(a)must order that the document be corrected if the defect is not material to the merits of the case;
(b)may order that the document be corrected in any other case.
(4)If a court makes an order under this section —
(a)the court document must be amended accordingly by the court or some person ordered to do so by the court; and
(b)each party is entitled to a copy of the amended court document; and
(c)the court may adjourn the case.
(5)This section is in addition to and does not affect the operation of section 132.

The indictment

The charges, as written in the indictment, were as follows:
1.Between 1 March 2005 and 5 October 2005 at Perth in the State of Western Australia, Stephen Lynne Wharton did cause to be prepared and lodged with the Australian Taxation Office a Trust Tax Return 2002 in the name of Equity Holdings Trust (of which the trustee is AFS Equity Pty Ltd) for the financial year 1 July 2001 to 30 June 2002 which contained false information, with the intention of dishonestly causing a loss to the Commonwealth, contrary to subsection 135.1(3) of the Criminal Code (Cth).
2.Between 1 March 2005 and 22 October 2005 at Perth in the State of Western Australia, Stephen Lynne Wharton did cause to be prepared and lodged with the Australian Taxation Office a Trust Tax Return 2003 in the name of Equity Holdings Trust (of which the trustee is AFS Equity Pty Ltd) for the financial year 1 July 2002 to 30 June 2003 which contained false information, with the intention of dishonestly causing a loss to the Commonwealth, contrary to subsection 135.1(3) of the Criminal Code (Cth).
3.Between 1 March 2005 and 22 October 2005 at Perth in the State of Western Australia, Stephen Lynne Wharton did cause to be prepared and lodged with the Australian Taxation Office a Trust Tax Return 2004 in the name of Equity Holdings Trust (of which the trustee is AFS Equity Pty Ltd) for the financial year 1 July 2003 to 30 June 2004 which contained false information, with the intention of dishonestly causing a loss to the Commonwealth, contrary to subsection 135.1(3) of the Criminal Code (Cth).
The indictment bore the signature of Martyn Graeme Allan Plummer 'for and on behalf of the Commonwealth Director of Public Prosecutions'. Mr Plummer's title as written on the indictment was 'Senior Assistant Director'. The indictment is dated 20 July 2013.

The validity of an indictment

As McLure P pointed out in Russell v The State of Western Australia,[52] when analysing issues concerning the validity of an indictment it is necessary to distinguish between a precondition to the exercise of a power and a condition regulating the exercise of a power. The former is an essential preliminary or condition precedent to the exercise of the jurisdiction, authority or power to act which in this case was to hear and determine the prosecution. The failure to comply with a precondition to the existence of a power will invalidate an act done in purported exercise of that power. In the present case, any such failure would result in the appellant's trial being a nullity and his convictions being set aside.[53]
[52] Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326.
[53] Russell v The State of Western Australia [23].
On the other hand, a failure to comply with a statutory requirement that is not a precondition to the existence of a power may (in the absence of any statutory provision to the contrary), but not must, result in invalidity.[54]
[54] Russell v The State of Western Australia [24] and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91] ‑ [92].
Whether or not an indictment is necessary to confer jurisdiction and whether or not compliance with the statutory requirements in the CPA are essential to the validity of an indictment depend upon the proper construction of the relevant statutory provisions of the CPA.[55]
[55] Russell v The State of Western Australia [26].
The appellant's submissions assume that a valid indictment is an essential preliminary to the exercise of jurisdiction to hear and determine a prosecution. Russell v The State of Western Australia proceeded on the same assumption, although the question is yet to be definitively answered having regard to the provisions of the CPA. As McLure P did in Russell v The State of Western Australia, we will proceed on the basis that this assumption is correct. However, as McLure P pointed out, the existence of s 132 and s 178 in the CPA demonstrates that not every breach of the provisions in the CPA relating to an indictment invalidates the indictment. This is because the powers of the court under those sections can only be enlivened in the event that it is properly seized of the jurisdiction to hear and determine the prosecution. An invalid indictment could not be the subject of amendment. This is also borne out by s 178 which is concerned with defects of both substance and form.[56]
[56] Russell v The State of Western Australia [28].

The authority to prosecute

We will assume in favour of the appellant that the indictment was invalid if it had been signed by a person not authorised to do so by the CPA.[57]
[57] Such was the position in R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 and R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10. Both these cases were decided against the background of the Criminal Procedure Act 1986 (NSW) which is not on all fours with the CPA.
A function of the Commonwealth Director of Public Prosecutions is to institute prosecutions on indictment for indictable offences against the law of the Commonwealth: s 6(1)(a) of the Director of Public Prosecutions Act 1983 (Cth) (CDPP). Section 9(1) CDPP empowers the Director to prosecute by indictment, in his or her name, indictable offences against the laws of the Commonwealth. Section 9(2) CDPP provides that where the Director institutes a prosecution on indictment for an offence against a law of the Commonwealth, the indictment shall be signed by the Director or 'for and on behalf of the Director by a person authorised by the Director, by instrument in writing to sign indictments'.
At his trial, the appellant did not allege that Mr Plummer was not authorised by the Director of Public Prosecutions to sign indictments. The matter was never put in issue.
The onus is now upon the appellant to demonstrate that Mr Plummer was not authorised to sign the indictment for and on behalf of the Commonwealth Director of Public Prosecutions. It is not sufficient for him to merely assert, as the appellant does in this appeal, that Mr Plummer was not authorised. The appellant has not sought to place any evidence before this court which shows that Mr Plummer was not authorised to sign the indictment. Accordingly, there is nothing before this court to enable it to conclude that the indictment was defective as he alleges. The appellant's submission that Mr Plummer was not authorised to sign the indictment is, in the absence of this evidence, unarguable.

AFS Equity Pty Ltd

An ASIC company extract of the company referred to in each count in the indictment was tendered as an exhibit at trial.[58] The extract reveals that the technically correct name for the company is 'A.F.S. Equity Pty Ltd', not 'AFS Equity Pty Ltd' as set out in each count on the indictment. The difference between 'A.F.S. Equity Pty Ltd' and 'AFS Equity Pty Ltd' is immaterial and could not possibly have occasioned any unfairness or prejudice to the appellant. It is a minor defect in the indictment which was plainly overlooked at the trial or thought to be unimportant. It is the kind of defect which, if it had have been drawn to the court's attention, would have been the subject of amendment under s 132 CPA. It is absurd to conclude that this defect could invalidate the indictment (as submitted by the appellant). Further, no objection to the indictment was made by the accused on the basis of this defect prior to the prosecutor's opening address as required by s 178(2) CPA. In our opinion, the appellant is now precluded from taking the point in this appeal.
[58] Exhibit P40 and page 778 of the prosecution brief.
Identical considerations apply to the failure of the indictment to refer to the company's ACN. Assuming that the company had an ACN, the failure to plead it in each count in the indictment did not invalidate the indictment. Once again, it is the kind of defect that could have been cured by an amendment under s 132 CPA. Again, by reason of s 178(2) CPA, the appellant's failure to object before the prosecutor's opening address is fatal to the matter being raised in this appeal.

Was the indictment insufficiently particularised

Each count in the indictment complied with cl 5 of sch 1 div 2 CPA. It is true that each count on the indictment did not particularise the false information allegedly contained in the trust tax return the subject of each count. However, that is not a formal requirement under the CPA and the failure to particularise the allegation does not invalidate the indictment. It is conceivable that a failure to give adequate particulars of an indictment could give rise to a miscarriage of justice, but this is not such a case. It does not appear that any formal request for particulars was made on behalf of the appellant, nor was any application for particulars made by the appellant pursuant to s 131 CPA.
In these circumstances, we are unable to see how the appellant could have suffered a miscarriage of justice by reason of the absence of particulars. Further, in her opening address on the first day of the trial the prosecutor detailed the Crown's case on falsity. The appellant's experienced trial counsel did not seek further particulars of the charges in the indictment.

Amendment of the indictment

At no stage in the trial was the indictment amended. This puts paid to the appellant's submission that the indictment was not properly amended.
It may be that the appellant is under the impression that the indictment should have been amended in order to reflect the Crown's case - that he committed the offences in the indictment on the basis that he was a principal offender or, alternatively, that he had procured the commission of the offences.[59] If the appellant has this impression, it is incorrect. The Crown was not obliged to amend the indictment to reflect an alternative case that the appellant had procured the commission of the offences.
[59] As to procuring the commission of an offence under Commonwealth law, see s 11.2 of the Criminal Code (Cth).

Another matter

In his written submissions in support of proposed ground 2, the appellant makes another point which, for the sake of completeness, we will address. He points out that after the jury was empanelled, the clerk of arraigns, when reading count 1 to the jury, misquoted the section of the Criminal Code (Cth) pursuant to which the appellant was charged. Instead of informing the jury that the appellant was charged pursuant to s 135.1(3) of the Criminal Code (Cth), the clerk of arraigns told the jury that the appellant had been charged pursuant to s 131.1(3) of the Criminal Code (Cth).[60] The appellant claims that, as a result of this slip of the tongue, the jury was sworn on count 1 to try the appellant on the wrong offence. This submission is misconceived. The appellant was arraigned on the charges as written in the indictment in the presence of the jury panel. The jurors were then selected and sworn. In other words, they had already been sworn to try the appellant on the charges as set out in the indictment prior to the clerk of arraigns rereading the charges to them. In any event, the terms of count 1 as read to the jury by the clerk of arraigns accorded with the provisions of s 135.1(3) of the Criminal Code (Cth). The clerk of arraigns' error was immaterial and did not mean that the appellant was tried on the wrong offence.
[60] The clerk of arraigns correctly read counts 2 and 3.

Conclusion - proposed ground 2

The indictment against the appellant was valid. None of the appellant's submissions to the effect that the indictment was invalid have any merit. Proposed ground 2 has no reasonable prospect of succeeding.

Proposed ground 3 - failure to direct the jury on complex issues of trust law and the evidence of Paul Hutchins

This compendious ground of appeal alleges that the learned trial judge was obliged to direct the jury on what the appellant described as 'complex issues of trust law'. He also alleges that the evidence of Paul Hutchins was false and 'occasioned [a] fraud upon the court'.
The appellant's written submissions, between pars 200 ‑ 224 of his draft appellant's case contain what we assume are the directions that his Honour was allegedly required to give the jury on the law relating to trusts, but failed to do so. It is unnecessary to detail these submissions. It is enough to say that the directions the appellant says should have been given were unnecessary and would have only served to add to the complexity of the trial and confuse the jury. The expert evidence which was led at trial to explain the basic structure of a trust, including a unit trust, and how such entities are taxed was all that the jury required in order to decide the case. Much of this evidence was unchallenged. The case was not about the intricacies of trust law. The case was about whether the appellant was part of a fraudulent tax evasion scheme and whether he caused tax returns to be prepared which contained false information with the intention of dishonestly causing a loss to the Commonwealth.
It is relevant to note that the appellant's experienced trial counsel did not seek directions of the type the appellant now claims should have been given.
As for the evidence of Mr Paul Hutchins, the appellant points out that the death certificate of Mr Peter Hutchins showed the date of his death as 29 December 2002 (exhibit P515) and yet the ASIC historical extract records disclosed that Mr Paul Hutchins became a director and secretary of Galapoint on 28 December 2002, that is, the day before his father's death (exhibit P42). The appellant alleges that, in substance, he suffered a miscarriage of justice because no evidence was adduced at the trial to explain how Mr Paul Hutchins became a director of Galapoint (and Mr Peter Hutchins' other companies) on 28 December 2002, the day before his father's death. The appellant claims that Mr Paul Hutchins lied in court about his appointment as a director to Galapoint and his father's other companies and he extrapolates from this that nearly all the material evidence Mr Paul Hutchins gave about his involvement in his father's business dealings after his father's death was false.
These arguments cannot be accepted. Mr Paul Hutchins was cross‑examined about the fact that he was apparently appointed a director of Galapoint on the day before his father's death. He was unable to explain why the relevant ASIC documents were to this effect. It was not put to him directly that he had acted fraudulently or dishonestly. It may well be that the date of appointment in the ASIC records which was intended to reflect the date of death of Mr Peter Hutchins was incorrect. The fact that there is a discrepancy does not establish that Mr Paul Hutchins lied about this matter or any of the other matters to which he testified. The appellant's submissions in this regard are spurious.
Finally, there is no merit to the appellant's assertion that Mr Paul Hutchins' evidence was inadmissible. The basis for this claim is unclear, but appears to be based on the allegations that Mr Paul Hutchins' evidence was false. Mr Paul Hutchins' evidence was relevant and admissible. Whether it was false or should not have been accepted were questions of fact for the jury to decide.
Proposed ground 3 is without merit and has no reasonable prospect of succeeding.

Proposed ground 4 - unfair trial

As the respondent pointed out in its submissions on the merit of the draft appellant's case, proposed ground 4 is a catchall ground which essentially asserts that the trial was unfair for a combination of reasons. The particulars to this proposed ground and the written submissions are focused on three broad allegations:
1.That the trial judge 'continually entered into the arena of the trial'.
2.His Honour erred in refusing to discharge the jury by reason of his 'excessive interventions' during the evidence of Crown witnesses Mr Hewitt, Mr Hutchins, Mr Gillies, Mr Thomson, Mr Bowler and Mr Barrington and in the testimony that the appellant gave on his own behalf.
3.The manner in which his Honour conducted the trial, including the way he interacted with the appellant's counsel, gave rise to a reasonable apprehension of bias.
In support of proposed ground 4, the appellant prepared a seven‑page schedule setting out, by reference to pages in the trial transcript, his Honour's alleged 'excessive interventions'. The schedule is annexed to these reasons.

The legal principles with respect to apprehended bias and the requirement of a fair trial

The relevant principles applicable to apprehended judicial bias and the requirement of a fair trial are uncontroversial. The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. Of course, in a jury trial, the judge does not decide an accused's guilt or innocence. The principle concerning apprehended bias gives effect to the requirement that justice should both be done and be seen to be done. The test is objective. The fair‑minded observer is taken to be reasonable and the judge in question is a person whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.
In applying the principle, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. Any such judgment takes into account that judges, like everyone else, are human and despite their professional training they are, in varying degrees, likely to show a range of human emotions. While patience is a judicial virtue, so also are concerns about justice, the efficient conduct of proceedings and the avoidance of undue complication or unnecessary delay.[61]
[61] Michael v The State of Western Australia [2007] WASCA 100 [56] ‑ [61] and the cases cited therein.
There is a distinction between an allegation of apprehended bias and of unfairness in the trial. The question of whether an accused's trial was fair will turn largely on whether he or she has had a proper opportunity to advance his or her defence to the charge.[62] Although the circumstances in which a trial may be characterised as unfair are not closed, it has been recognised that excessive involvement or interference by a trial judge may give rise to an unfair trial.[63] A trial judge is entitled to ask questions of a witness, not only for the purpose of clarifying the evidence, but also to test that evidence. However, in this respect, a judge should do no more than is absolutely necessary and should be careful not to take on the role of counsel.[64] Ultimately, it is the trial judge's task to ensure that the proceedings are conducted in accordance with due process, fairly and impartially.[65]
[62] Michael v The State of Western Australia [62]; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [11].
[63] Michael v The State of Western Australia [63].
[64] Michaelv The State of Western Australia [66].
[65] Michael v The State of Western Australia [69].
We have read and had regard to each and every transcript reference set out in the appellant's schedule. While there are numerous transcript references, the trial needs to be considered as a whole. In particular, it is necessary to have regard to:
(a)The fact that the trial lasted two weeks and generated approximately 1,300 pages of transcript.
(b)The evidence was complex for a jury and involved commercial activities with which they may have had little or no familiarity.
(c)Legal issues arose in the trial, such as with respect to the propensity evidence and a potential issue as to the application of the principle in Jones v Dunkel[66] on which his Honour sought the assistance of counsel.
[66] Jones v Dunkel (1959) 101 CLR 298.
Upon our reading of the relevant portions of the transcript, the various criticisms made by the appellant suggesting that his Honour conducted the examination of the named witnesses or unduly and unfairly interjected at various points in their testimony are unjustified. The appellant too readily makes the allegation that his Honour conducted the examination of a witness when, in the vast majority of cases, his Honour asked a question or a small number of questions which were self‑evidently designed to clarify the question put by counsel or the answer. Sometimes his Honour sought further information from the witness.
The overall picture which emerges from our reading of the transcript is that his Honour did not ask an excessive number of questions, nor did he descend into the arena, and that the questions he asked were appropriate and were designed to assist the jury in its comprehension of the evidence and the issues. When all of the impugned passages are taken into account, and having regard to the trial as a whole, we are far from persuaded that the trial was unfair as a result of his Honour's questioning of witnesses, including the appellant, or that he was deprived of the proper opportunity to advance his defence to the charges.
The appellant was represented at his trial by experienced defence counsel, Mr Watters. On one occasion, Mr Watters sought the discharge of the jury because of his Honour's questioning. This occurred in the course of the appellant's examination‑in chief. At one point in the appellant's examination‑in‑chief, on 27 March 2014, the following exchange took place between Mr Watters and the appellant:[67]
Perhaps I'll just put it more in a general sense. If someone indicates there's been a distribution from one trust to another trust, but there isn't actually as laypeople might think money moving from one bank account to another bank account, what's your understanding of what it means when someone says 'I've distributed 3 million from one trust to another trust'? What does it actually mean?‑‑‑Well, he's done his accounting for the year, and calculated his net profit, and he's distributing the income to the unit holders. If it's more than one unit holder, in accordance with - in proportion to the units, or if there's only one unit holder to the - to that unit holder, it's a distribution of income. And then the unit holder that receives the distribution records it in its accounts as income received as a distribution from Jedmore.
[67] ts 1094.
His Honour then intervened as follows:[68]
So if the other trust is a single unit trust, and there's a distribution of 3 million from one trust to that other trust, what happens to the 3 million? Forget about the book entries, but what happened to the 3 million?‑‑‑Well, at that point in time - the point in time in - of doing the accounting, it's - the accounting entry is done as part of the accounting for the year, ended whichever particular year it is, and as there's a loan account between the two entities, and there can be subsequent payments of money to ‑ ‑ ‑
So you're saying somewhere there would be recorded that the 3 million is on loan?‑‑‑Yes. And then when there's money paid, the loan is reduced by the amount of money that's paid in both entities.
[68] ts 1094.
Towards the end of the proceedings on 27 March 2014,[69] this exchange occurred which involved Mr Watters, the appellant and his Honour:
WATTERS, MR: Did you at any time whilst you were in Wooroloo communicate with Mr Gillies by computer?‑‑‑Not by computer, no.
All right. You could receive faxes at Wooroloo?‑‑‑Well, no, it wasn't open slather at all. The only - the only way you could literally write letters or provide documents, a bit like what I - or receive documents like I got from John, was if it related to your appeal or something like that. And so you'll see quite a lot of my letters - faxes that went to John had 'appeal funding' and something else.
Okay.
STONE DCJ: And refinance. Was that a mortgage?‑‑‑Yes.
Because one of those letters that started our appeal but it was ‑ ‑ ‑?‑‑‑Yes, that's right.
- ‑ ‑ all about refinancing?‑‑‑Because if - if you did that you had some chance of asking somebody to do it. I could - I - I - I must emphasise, it - it wasn't like (indistinct) it was very difficult to get anything like that ‑ ‑ ‑
All done?‑‑‑- ‑ ‑ done. …
[69] ts 1103

The appellant's examination‑in chief continued into the following day, 28 March 2014. Mr Watters asked the appellant why it was necessary to prepare tax returns for the financial years ending in 2002, 2003 and 2004 for the Equity Holdings Trust. The appellant said that he did so 'in part' to assist an application for finance with a firm called Southern Mortgages. His Honour then asked whether the preparation of the tax returns had anything to do with 'what was happening in Switzerland' and 'with the need to lodge returns because of distribution [sic]'.[70]
[70] ts 1114.
At this point, Mr Watters indicated that he wished to raise a matter in the absence of the jury. After the jury retired, Mr Watters sought the discharge of the jury based upon the questions his Honour asked the previous day and the questions concerning the preparation of the tax returns for the years ending 2002, 2003 and 2004. His Honour refused the application. The entire exchange between Mr Watters and his Honour was brief and may be quoted in full:[71]
[71] ts 1114 ‑ 1115.
STONE DCJ:   Yes, Mr Watters.
WATTERS, MR:   Your Honour, I've got a concern, with the greatest of respect, that your Honour's questioning, not only your Honour's questioning but also your inflexion and your tone of the witness in the course of his evidence-in-chief is such that he's not receiving a fair trial. Your Honour yesterday asked the witness a number of times matters with regard to, for example, questioning about $3 million; the word 'appeal' had been struck out across a fax that was sent; and your Honour now - - -
STONE DCJ:   No, the word 'appeal' had not been struck out.
WATTERS, MR:   Well, your Honour, with the greatest respect, referred to a fax that had been sent that had the word 'appeal' on it and then referred to another matter.
STONE DCJ:   Yes.
WATTERS, MR:   Your Honour now has asked the witness questions that would seem to imply that there was something untoward about what was sent to the Tax Office as opposed to Southern Mortgages. Your Honour, in particular, relied upon, and the transcript won't show it, you emphasised the word 'need' quite deliberately.
In my respectful submission, it's unfair to this accused to have a trial judge raise matters like that in the course of his evidence-in-chief. They are matters, with all due respect, that ought to be raised in cross-examination, if my friend sees fit.
I have no issue, and nor do the authorities, with your Honour clarifying matters that are left unclear or uncertain. My instructions from Mr Wharton are to apply for a mistrial, to apply for this jury to be discharged and for the matter to proceed on another day. Those are my instructions. That is my application.
STONE DCJ:   Yes. Well, I refuse your application. And the reason I do that is because you asked why tax returns needed to be prepared and lodged, the subject of this trial, and you did not get a response to that question, save for the witness saying 'In part it had to do with the finance of Southern Mortgages'. What I was simply seeking to clarify, Mr Watters, well, what was the other part?
WATTERS, MR:   Your Honour's given your ruling. Does your Honour wish for me to reply to that?
STONE DCJ:   No, you don't need to reply to that.
It may immediately be observed that Mr Watters based his application only on his Honour's questioning during the appellant's evidence‑in‑chief and not upon his Honour's questioning of other witnesses.
Contrary to the appellant's submission, his Honour did not err in refusing the application to discharge the jury. His Honour's questioning of the appellant was to clarify his evidence and was not unfair. There was no reasonable basis upon which to discharge the jury.
As for the allegation that his Honour's conduct and in particular the way he interacted with the appellant's counsel gave rise to an apprehension of bias, that allegation cannot be accepted. On our reading of the transcript, there were times when it appeared that the relationship between his Honour and defence counsel was somewhat strained. An example of this may be seen in the course of the evidence of Mr Hewitt:[72]
[72] 767 ‑ 768.
WATTERS, MR:   Your Honour, with all due respect, I've got a concern about some comments your Honour made in the course of the evidence given by Mr Hewitt. For example, when your Honour interposed and talked about trusts being followed through to Finito and - - -
STONE DCJ:   Yes.
WATTERS, MR:   - - - matters like that.
STONE DCJ:   Yes.
WATTERS, MR:   Now, in my respectful submission, they're matters that ought come from witnesses giving evidence, such as Mr Philp or other people.
STONE DCJ:   Yes.
WATTERS, MR:   And I've just got a concern, with the greatest of respect, that the jury might place undue weight upon comments made by your Honour in the course of the evidence about where money ultimately distributed. And in particular, comments about difficulties the Australian authorities might face to recover that tax.
STONE DCJ:   Why should that - but that's what the essence that this case is about, Mr Watters. And there's been evidence from other sources that that's where the moneys are purported to go. I mean, that was the opening - that's the opening that the prosecutor gave. What's the issue there?
WATTERS, MR:   Well, your Honour, in my respectful submission, the issue is that those comments by your Honour are perhaps best saved for directions to the jury and a summing up of the evidence, rather than in the course of cross-examination of a witness. That's my point.
STONE DCJ:   All right. And what about your flippant comments, Mr Watters?
WATTERS, MR:   Well, I'll - - -
STONE DCJ:   Perhaps they're best saved for elsewhere too.
However, having regard to the entire transcript, we are not able to see how it could reasonably be concluded that the manner in which his Honour and Mr Watters interacted in the trial could give rise to a reasonable apprehension of bias.
In our view, there is no merit whatever in proposed ground 4. It has no reasonable prospect of succeeding.

Conclusion and orders

As the second appeal is incompetent, the only order that needs to be made is to dismiss the appeal. The dismissal of the appeal renders it unnecessary to make a specific order as to the application for an extension of time to comply with the springing order. Had it been so necessary then we would have dismissed that application.

The order of the court is:
1.The second appeal, CACR 209 of 2015, is incompetent and is dismissed.
BEECH JA: I agree with Buss P and Mazza JA, for the reasons that they give that this appeal is incompetent.
I also agree with their Honours that if the appeal were incompetent, the application for an extension of time to comply with the springing order should be dismissed for the reasons they give in [53] ‑ [56]. In my respectful view, in the extraordinary circumstances of this case, it is neither necessary nor appropriate to say anything about the merits or otherwise of the appellant's proposed grounds of appeal. Viewed in the context of the history of the first appeal, the appellant's delay in filing the appellant's case in this appeal has not been explained in a way that would justify extending the time for compliance with the springing order. That conclusion is unaffected by whether there were any merit in the appellant's case which the appellant seeks, so belatedly, to file. The appellant has no right to a consideration of the merits of grounds of appeal and submissions that, notwithstanding the making of springing orders, he failed to advance in the more than 16 months that his first appeal was on foot and in the first 14 months after he instituted his second appeal.

ANNEXURE A

Ts Page

General Comment

134-157

185

196-200

Convincing Prosecution to adopt the extension of criminal liability

provisions. Refer also to Ground 2 submissions on pages 33-38 of

Appellants Case

In they sent it .. or they purported to send it - Big Difference

Wanting the 'purported' added to Jury Book documents

Stephen Wharton (Ts 1060-1245)

1067

1070

1073

1076

1080

1081

1082

1083

1084

1086

1087

1088

1093

1094

1099

1107-1108

1112

1113

1114

1114-1115

1122

1131

1133

1144

1146

1147-1168

1175-1176

1181

1185

1218

1239

1245

Conducting examination

Interjection

Conducting examination

Conducting examination, and uncalled for comment 'well that sort of fizzes that doesn't it Mr Watters'. 'Does this have any bearing on case',

Conducting examination, 'so this clause 69 is going to have some relevance'

Conducting examination, asking questions.

Conducting examination

Questioning Watters question

Stops Appellant from looking at document and stops any evidence in

relation to it

Conducting examination

Interjection and Conducting examination

Conducting examination

Comments on what evidence is to be used for

Re Barrington evidence which was helpful to Appellants case effectively ignored

Conducting examination

Watters raises the issue of His Honour's continued questioning

Watters says also inflexion and tone of the witness in the course of his evidence in chief is such that he's not receiving a fair trial. Seems to imply... Emphasized the word NEED quite deliberately

Its unfair to accused to raise matters during evidence in chief. Should be raised in cross examination.

Instruction to apply for mistrial. To apply for the jury to be discharged and matter to proceed on another day.

His Honour refuses application.

Discussion with counsel

Comments in relation trust distribution

Questions paperwork

Browne v Dunn evidence adduced from Appellant not put to

Barrington

Ruling that it is not fairly open for Counsel to make a particular submission in his closing

Lengthy discussion between counsel and His Honour about Browne V

Dunn argument

Not happy with the Barrington evidence. He thinks difference between transcript and what he heard.

Conducting examination

Interjection

Conducting examination

Conducting examination, Watters raises objection. But he is pushed to withdraw.

Paul Hutchins (Ts 232-333)

232

239

245

269

280

290

291

293-294

324-325

328

333

Changing what Paul Hutchins saying

Puts words into Paul Hutchins mouth about date of death of his father 'perhaps you made a mistake about the date' after Paul Hutchins was asked whether he could explain his appoint on 28/12/2002 and answered 'NO'.

Putting words into his mouth.

Askes series of questions. Conducting examination

Interjection 'its millions'

Cuts in on Watters examination

Interjection 'what about tax avoidance'. Trying to stifle Paul Hutchins response

Discussion of Wharton 2010conviction whilst Paul Hutchins still in witness box

Controlling / channelling evidence

Controlling evidence

Controlling / channelling evidence

Getting Paul Hutchins to add to his evidence asking him 'to which you replied?' ·

John Gillies (Ts 334-680)

337

357

355

362

365

366

367

387

388

403

407-408

413

427

441

442

449-452

458-460

461

477

488

494

496

498

499

530

532

533

534

537

539

560

562

564-570

568

571

588

589

593

597-598

628-630

641

642

644

655

666-667

Conducting examination

Interjection 'whats the company'

Conducting examination

Interjections, controlling evidence, 'the jury don't need to see the content of that at all

Leading Prosecution to go through document for the jury

Interjections

Conducting examination, helping Gillies to answer questions, putting words into Gillies mouth or effectively answering the question for Gillies. He recognizes the Prosecutor can't use Gilles to get evidence out.

Discussion with Counsel. I'm just wondering how you are going to wrap it all up to jury. Prosecutors says unfortunately I can't use Gillies

Interjects before Gillies can answer the question 'well do you agree with that, it's a unit trust.

Continued pattern of interjections that go beyond clarification of witness evidence

Conducting examination

Question of Gillies who incorrectly says he rang Wharton on his mobile phone (which everybody knows can't be so - unless its smuggled in). Prosecutor says 'I'd be surprised' To which His Honour interjected 'well I wouldn't'. This is a biased, prejudiced comment on the character of the Appellant and casts a negative and biased reflection of the accused to the jury.

Interfering with how the Prosecution want to present their case

Conducting examination. Prosecutor asks Gillies about opening a letter and seeing letter. His Honour interjects 'sorry that's different from opening' directing the Prosecution line of questioning.

Interjection and Conducting examination

Conducting examination

Interjects before Gillies can answer question with 'at that meeting'

Interjects before Gillies can answer question with 'for what period' Continued pattern of interjections

Interjection 'I'm not sure he's actually answered the question you have

Asked'

Conducting examination

Questioning with Prosecutor and line of enquiry in from of Gillies. Prosecutor says I can't lead. His Honour has in effect prompted Gillies' evidence by leading him to it.

Interjects 'it has been asked for in previous fax'. Prosecutor says yes that's right. I didn't want to lead. His Honour says 'why not'.

Conducting examination

wanting to conduct examination

Interjects its not enough to just say 'well the computer put these figures in there'. More concerned what happens from the Toorak Office end of it.

Watters objects to leading evidence. His Honour interjects 'well put

the 2002 tax return in front of him'. And explains the document. Prosecutor can't lead evidence. His Honour say no but you can put the document in front of him... wanting to conduct the examination

asking question

Conducting examination

Watters says - need to be mindful of hearsay. Interjection 'well there's

been a fair amount of it'. Discussion between His Honour and Counsel.

His Honour 'How could defence ever deal with that'. This hearsay evidence should have not been admitted into trial.

His Honour says he will direct jury it is hearsay evidence.

However once said it cannot be unsaid and it can taint the mind of the jury. Its prejudicial.

Interjects 'He doesn't agree if went into AFS account Mr Watters'

Conducting examination. Tell us what you believed.

Interjection on Watters line of questioning re letter to Southern Mortgages.

Interjects 'he is answering you'

Interjects to rescue Gillies re letter with 'Trust dividend distribution policy'. Discussion between His Honour and Watters.

Interjects 'so everybody in this court room knows what you are talking about'

'The Trust does not have a bank account'.

'said the first week of incarceration'

'these things are a matter of record'

'Is it a memory test'

'Well lets get to the substance'

He appears to be belittling counsel for the accused. He appears to readily jump in all the time either to belittle Watters or assist witness.

a number of interjections and 'if you want a date say so'

Conducting examination

Conversation between His Honour and Watters. Telling him to stick with what he (Gillies) says.

Conducting examination

Not sure I understand the defence. Two crucial witnesses Hutchins and Gillies and defence hasn't emerged.

'all I can say is "wow"'

Prejudgment

Trevor Thomson

681

695

701

711-720

712

Interjects 'and the emphasis is on being 100% of their profit'

Asks 'Is this the Thomson that testified in the Barminco trial. I suspected he was. The, whole thing is a sham'. Further prejudgment.

Interjects 'If you wanted to enforce it (the promissory note)'

Discussion with counsel about Mr Dunn not being called. Jones v

Dunkel issue. ·

Dunn was on trial for the other part of this Matter

Hewitt

745

750-751

767

771

Interjects. 'No but the name of the trust Mr Hewitt. That would have to be typed'.

Interjects 'but there may be a tax liability for the next party'.

Interjects 'Unless they move it elsewhere to Finito'

Interjects 'except it would be hard to tax Finito in BVI' 'Certainly from Australia's point of view'.

Watters asks Hewitt 'but your not an international tax lawyer?'.

Interjection 'I don't think it would take one to work that out, Mr Watters'.

Watters raises concern about the comments made by His Honour in the course of evidence of Hewitt. For example when His Honour interjected about the trust being followed through to Finito and matters like that. These matters should come from witnesses. He is concerned that the jury might place undue weight upon the comments of Your Honour about where monies ultimately distributed and, in particular, comments about difficulties the Australian authorities might face to recover that tax.

His Honour responds 'why should that-- but that's what the essence

that this case is about, Mr Watters.

Watters 'those comments . .. rather than in the course of cross examination of a witness.

His Honour 'All right . What about your flippant comments Mr Watters. Perhaps they are best saved for elsewhere too.

The Appellant observes His Honour giving a note to Mr Watters. He appears to have reacted to Walter's objection to his comments in open court.

Lengthy discussion. His Honour says his evidence is he doesn't know anything about it. In which case he can give it back to you.

Bowler

831-833

834

1465-1466

847-856

Interjects 'what do you mean by that, assuming they hadn't'. Discussions about calculations.

His Honour puzzled 'you don't need to prove loss'.

No second calculation led.

Prosecutor. It should be noted that in the sentencing at (Ts 1465-1466) it was said the amount of money that was in issue here is also in some ways unique. How one categorizes that is an interesting question.....

At (Ts 1466) as to who that responsibility is attributed to is an interesting question because there were also potential tax liabilities or responsibilities by people further down the line. His Honour 'no'. Prosecutor. There were obvious questions in that if there was unlawful or not real distributions earlier in the chain then ... that would have an impact on the Tax Office assessment of who would be liable.

His Honour 'do you mean if Dunn - Mr Barminco hadn't passed on'.

Prosecutor. That's right. That evidence wasn't raised at trial.

His Honour moulds what is to be said in the prior conviction statements.

Mark Barrington

864-865

868

880-881

902-904

999

Interjects a couple of times. Makes statement 'well it needs to be done by end of October... that's how I've always understood it'.

Conducting examination

His Honour is not very happy about line of questioning about UB Statements.

His Honour accuses Watters of clear implication from question be

asked of Barrington.

Conducting examination

Debets

1003

1006

1013-1025

1024

1251

1294

1303-1310

1320

1322

1323

1327

1328-1338

1336

1340

1345

1346

1347

Conducting examination

Interjects and tells what her evidence is

Continued discussions about Dunn and the Jones v Dunkel issue.

His Honour says to Watters 'that was a waste of time Mr Watters'.

Further belittling comments

Further discussion on prior convictions.

Watters asks the question 'I take it we are still telling the jury that there's no evidence of any unlawfulness by Peter Hutchins or Greg Dunn. But His Honour has changed his mind.

His Honour says' No- I don't see that as necessary. The jury aren't concerned with Peter Hutchins or Dunn. The focus of their consideration has to be the accused. What this man did.

Lengthy discussions about evidence and what will be said to jury.

About the evidence of Barrington at (Ts 896) and the word was 'THEN'

His Honour says 'I'm not thrilled. But that's what I heard.

His Honour re Gillies. He's a trustee / director writing himself cheques out of trust money. He's accomplice.

Further, It Just seems to me that an accountant and a director of companies for most of his life and is taking monies out of trust account

His Honour says he is giving accomplice direction

Further discussions of interest

His Honour's view of the case: At the end of the day this case was very simple. You could have called Hutchins, Gillies and the tax returns. And that has to be said was there were no distributions.

Showed clause 67 of Trust Deed. Implied to jury that clause in fact as matter of law means that Paul Hutchins in effect, powerless to stop the distribution, to stop the flow of funds. No legal foundation. At least this was an interpretation Wharton made.

His Honour: It's a Mr Wharton interpretation isn't it really.

His Honour: In this trial there's no evidence as to what view Mr Barrington may or may not have taken about 67. And to invite the jury to speculate about that would be wrong.

His Honour: Mr Barrington was not invited to look at the Trust Deed.

His Honour: Barrington gave no evidence about the Trust Deed.