R v Dougas; R v Read; R v Linke (No 10)

Immediately before the commencement of the Crown address, Mr Clelland QC, who appeared with Mr Pararajasingham on behalf of the accused Mr Dougas, submitted that there ought be a Murray direction (named after R v Murray (1987) 11 NSWLR 12 (Murray) or, in the alternative, a Shepherd direction (named after Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (Shepherd)) in respect of Mr Chapple’s evidence of the genesis of the conspiracy. Subsequently, Mr Boulten SC, who appeared with Mr Gullaci on behalf of the accused Mr Read joined in the application. Mr Hill QC, who appeared with Mr Morgan on behalf of the accused, Mr Linke, sought such directions in respect of other aspects of Mr Chapple’s evidence.

The Crown indicated that it was necessary that I decide whether I would give such directions in advance of the commencement of its closing submissions.

At the conclusion of argument, I indicated that I did not propose to give either of those directions and that I would provide reasons for my refusal later. What follows are my reasons for refusing the applications for Murray and Shepherd directions as sought by each of the accused.

I propose to use the expressions “link in the chain” and “strands in the cable” as shorthand expressions to refer to the distinction in Shepherd (at 579 of Dawson J’s reasons, relying on the metaphor referred to in Wigmore on Evidence, vol 9 (Chadbourn rev. 1981), par. 2497, pp 412-414) between a crucial intermediate step which must be proved beyond reasonable doubt (link in the chain) and evidence which may be taken together with other evidence to prove the Crown case beyond reasonable doubt (strands in the cable).

In support of his application, Mr Clelland placed considerable emphasis not only on the prosecutor’s conduct of the trial but also its forensic stance in its appeal against my ruling excluding Mr Chapple’s evidence of conversations with Mr Dougas in 2000 which formed the Crown case as to the genesis of the conspiracy. In order to understand the context of this submission, it is necessary to summarise the evidence which the Crown proposed to lead from Mr Chapple (which was the subject of the pre-trial application to exclude it) before turning to Mr Chapple’s actual evidence.

The evidence which the Crown proposed to lead from Mr Chapple at trial was that, in about 2000, he told Mr Dougas that he had been informed by Ms Fernandez, the Business Development Manager of Sinclair Knight Merz (SKM) in the Philippines, that SKM would need to pay bribes to get contracts for loan projects (funded aid projects for public works). Mr Chapple said that, in response, Mr Dougas had told him that it was permissible to pay bribes as long as three conditions were met: that there be an auditable invoice; that Angus Brodie not be involved and that knowledge of the payments be kept to a small circle; and that no payment be made until the contract was awarded to SKM. In that, or a subsequent conversation, according to Mr Chapple, Mr Dougas told Mr Chapple that he should go to Mr Read for approval of each such payment.

On 10 December 2021, on the application of the accused Mr Dougas and Mr Read, I rejected the evidence under s 137 of the Evidence Act 1995 (NSW): R v Dougas; R v Read (Supreme Court (NSW), unrep). In her grounds of appeal, the Director of Public Prosecutions (Cth) (the Director), alleged that I had erred in excluding Mr Chapple’s evidence on that basis. The Director’s submission that I was wrong to assess the probative value of Mr Chapple’s evidence as “low” was accepted by the Court of Criminal Appeal.

The Court of Criminal Appeal (Bell P, Beech-Jones CJ at CL and N Adams J) noted Mr Clelland’s concession that the exclusion of Mr Chapple’s evidence met the jurisdictional requirement in s 5F(3A) of the Criminal Appeal Act 1912 (NSW) that its exclusion “substantially weakens the prosecution’s case”: Director of Public Prosecutions (Cth) v Dougas; Director of Public Prosecutions (Cth) v Read; Director of Public Prosecutions (Cth) v Linke [2022] NSWCCA 19 (the CCA Judgment). Their Honours, noting the concession, found, at [75], that the evidence had “very high probative value, on the assumption that it is accepted by the jury”. The Court continued:

The Crown opened its case on the basis that Mr Chapple would give evidence of his conversation with Mr Dougas referred to above and that this constituted the genesis of the conspiracy to pay bribes to Filipino public officials to which Mr Chapple and Mr Dougas were initial parties with Ms Fernandez (who made the payments from funds provided by SKM). The Crown alleged that Mr Read and later, Mr Linke, as well as other employees of SKM, became parties to the conspiracy.

Mr Chapple’s evidence in chief was largely to the effect set out above. He was cross-examined rigorously, including as to the timing of his versions of events given in the course of SKM’s investigation and throughout the investigation by the Australian Federal Police, changes he had made to his versions over time and his recollection, having regard to the passage of time between the events within the charge period (2000-2005) and the giving of police statements and his evidence at the trial. At the conclusion of his evidence, I gave the jury a warning pursuant to s 165 of the Evidence Act regarding his evidence, on the basis that he was criminally involved in the events which were the subject of the charges.

Mr Clelland submitted that, having regard to the stance taken by the Director in the Court of Criminal Appeal as to the centrality of Mr Chapple’s evidence and its importance to the Crown case, and the way in which the Crown emphasised Mr Chapple’s evidence in its opening, it would be unfair for the Crown to close its case on any other basis. Further, he submitted that, as Mr Chapple’s evidence was the only evidence of the genesis of the conspiracy, a Murray direction ought be given to the jury that they could not convict unless they accepted Mr Chapple’s evidence of the conversations with Mr Dougas in 2000 beyond reasonable doubt.

In the alternative, Mr Clelland sought a Shepherd direction to the effect that the jury had to be satisfied of the conversations between Mr Dougas and Mr Chapple in 2000 beyond reasonable doubt because, if the jury did not accept these conversations to that standard, it could not be satisfied that there was a conspiracy at all. Further, Mr Clelland submitted that as the Crown sought that all of the emails and other documents be viewed through the prism of the conversations in 2000, these conversations were an intermediate fact which had to be proved beyond reasonable doubt as a matter of fairness to the accused Mr Dougas. In other words, he submitted that the conversations in 2000 were “links in the chain”, not “strands in the cable”.

Mr Boulten adopted Mr Clelland’s submissions in respect of Mr Chapple’s conversations with Mr Dougas in 2000, including the conversation where Mr Dougas told Mr Chapple to obtain approval from Mr Read.

Mr Hill submitted that the alleged conversation between Mr Chapple and Mr Linke which preceded the email from Mr Chapple to Mr Linke dated 6 August 2004 was an intermediate fact which needed to be proved beyond reasonable doubt. He submitted that, without such a conversation, the Crown could not prove Mr Linke’s participation in the conspiracy alleged in the indictment.

The Court of Criminal Appeal considered the circumstances in which a Murray direction will be required in Gould v R; R v Gould [2021] NSWCCA 92 (Gould). My summary of the relevant principles (with which Bathurst CJ and Davies J agreed) in Gould was as follows:

In Gould, the ground that the trial judge had erred in failing to give a Murray direction was not made out because of the other evidence adduced in the trial which was relevant to the essential ingredients of the offence. At [137] in Gould, I said, in terms which I consider to be applicable to the present case (apart from the reference to particulars which does not apply here):

The existence of a conspiracy can be proved by direct evidence or circumstantial evidence. Mr Chapple’s evidence of the conversations with Mr Dougas in 2000 is direct evidence of an agreement to commit a crime because it constitutes statements which comprise the agreement by two parties to the agreement. However, a conspiracy can also be proved by circumstantial evidence, including by communications between alleged co-conspirators or overt acts pursuant to the alleged conspiracy, from which a jury might infer the conspiracy.

While Mr Chapple’s evidence is the only direct evidence of the conspiracy in 2000, there are communications thereafter which qualify as circumstantial evidence of a conspiracy having been on foot by about 2001 and which continued until about 2004, as well as each accused’s entry into such an agreement. The evidence relied on by the Crown has been set out in greater detail in my reasons for rejecting the applications for directed acquittals made by Mr Read and Mr Linke (R v Dougas; R v Read; R v Linke (No 9) [2022] NSWSC 299 and will not be repeated here. Thus, Mr Chapple’s evidence is not the only evidence of an essential ingredient of the offence charged (the essential ingredients are set out in R v Dougas; R v Read; R v Linke (No 9) at [76]).

In these circumstances, a Murray direction is not warranted as the pre-conditions for such a direction set out in the passage extracted from Gould are not met in the present case.

In the alternative, a Shepherd direction was sought in respect of the same evidence.

The applicant in Shepherd was convicted of conspiring to import heroin into Australia. The Crown case at trial was that, in about 1976, Clark had initiated the conspiracy by setting up a business which acquired heroin in Bangkok, transported it to Singapore and then had couriers bring it to Australia. The Crown alleged that after Clark’s arrest in 1978, the applicant took over the running of the business. The evidence adduced by the Crown fell into the following three categories:

The trial judge in Shepherd gave the standard direction to the jury regarding circumstantial evidence, including that, in a circumstantial case, the jury would have to be satisfied that the applicant’s guilt was the only rational inference that was available, all other inferences having been excluded beyond reasonable doubt.

The Court of Criminal Appeal (Street CJ, Campbell J, Lee J dissenting) held (based on what was found to be a misreading of Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 (Chamberlain)) that the trial judge was in error in not directing the jury that they had to be satisfied of each circumstance beyond reasonable doubt before they could infer guilt. A differently constituted Court of Criminal Appeal dismissed the appeal against conviction on the basis of the proviso that no substantial miscarriage of justice had been occasioned.

The applicant sought special leave to appeal to the High Court against the dismissal of his intermediate appeal. The Crown filed a notice of contention, alleging that the trial judge was not required to give the direction which the Court of Criminal Appeal decided ought to have been given. The High Court granted special leave to appeal but, on the basis of the Crown’s notice of contention, dismissed the appeal.

In Shepherd, Dawson J (Toohey and Gaudron JJ agreeing, and Mason CJ agreeing in part) considered cases where there may be an intermediate fact which, because of its importance, constitutes an “indispensable [link] in the chain of reasoning towards an inference of guilt.” However, the Court did not regard any of the separate categories of evidence as amounting to intermediate facts. That is, the Court did not regard the evidence of the conversation between Clark and the applicant in gaol in which Clark appointed the applicant to run the business while Clark was in custody, as an indispensable link in the chain. Rather, the Court considered the evidence of the conversation as being, together with the evidence of accomplices and the financial evidence, a strand in the cable.

The effect of a Shepherd direction in the present case would be to require the jury to be satisfied of the evidence of the conversations in 2000 beyond reasonable doubt before the jury could convict. For the following reasons, I am not persuaded that such a direction is warranted in the present case.

First, the present case would appear to be relevantly indistinguishable from Shepherd, which was not regarded as warranting a Shepherd direction.

Secondly, I do not regard the Director’s position in the Court of Criminal Appeal or the Crown’s opening as being inconsistent with the way the Crown proposes to close its case. The Director was entitled to emphasise to the Court of Criminal Appeal the importance of Mr Chapple’s evidence of the conversations in 2000, it being direct evidence of a conspiracy between Mr Dougas and Mr Chapple which, if accepted, would demonstrate the way in which the conspiracy was to be implemented. This was necessary, in any event, as referred to above, to fulfil the requirement in s 5F(3A) of the Criminal Appeal Act for such an appeal.

Further, in his opening, the prosecutor outlined the evidence about the conversations in 2000 which he expected Mr Chapple would give. To describe the evidence as important, material, or significant, does not, in my view, amount to a concession that it amounts to a link in the chain rather than a strand in the cable. The jury is entitled to have regard to Mr Chapple’s evidence in light of all the other evidence and determine its veracity (or otherwise) by reference to its consistency (or otherwise) with other evidence.

Dawson J in Shepherd concluded at 586, in terms which I consider to be apposite to the present case:

Similar reasons apply to Mr Boulten’s application for a Murray or Shepherd direction in respect of the conversation in which Mr Dougas is alleged to have directed Mr Chapple to Mr Read for approval of the payment of bribes. That Mr Chapple sought approval from Mr Read subsequently could be used by the jury to infer Mr Read’s guilt even if they were not satisfied beyond reasonable doubt that Mr Dougas told Mr Chapple to obtain approval from Mr Read.

Mr Hill’s application is somewhat different. The Crown in its opening, told the jury that it expected that Mr Chapple would give evidence of a conversation at some time between 21 March 2004 and 2 April 2004 in which he and Mr Linke discussed bribes in relation to loan projects. Mr Chapple gave no such evidence. He submitted that proof of the antecedent conversation was “foundational” to the interpretation which the Crown placed on the email from Mr Chapple to Mr Linke on 6 August 2004 and that, accordingly, the antecedent conversation had to be proved beyond reasonable doubt before the jury could use that conversation to interpret the emails that followed.

I reject this submission. Although the Crown opened that there would be evidence from Mr Chapple of an antecedent conversation with Mr Linke, no such evidence was given. However, the email is available, as I explained in the judgment on the directed verdict (referred to above), to prove the truth of its contents as well as to prove the terms of the communication. It would be open to the jury to infer from the terms of the email that there was such a conversation and to construe the email in that light. I am not persuaded that an antecedent conversation is a link in the chain rather than a strand in the cable. Accordingly, I reject the applications made by Mr Hill on behalf of Mr Linke.

The order which I made on 21 March 2002 was as follows: