Roach v R

1. [1]

   THE COURT: The applicant, Peter David Roach, was charged on indictment dated 9 July 2015 with nine offences relating to what might be described generally as the affairs of Healthzone Ltd (Healthzone). The applicant seeks leave to appeal against conviction and sentence arising from his conviction by a jury for offences of conspiracy to dishonestly obtain a financial advantage by deception (a State offence), two counts of authorising the making available to an operator of a financial market of information relating to the affairs of a corporation that was knowingly false or misleading in a material particular, contrary to ss 1309(1)(c), (d) and 1311(1) Corporations Act 2001 (Cth) (Corporations Act) and six counts of engaging in conduct that resulted in the falsification of books relating to the affairs of a corporation contrary to ss 1307(1) and 1311(1) Corporations Act.

2. [2]

   The indictment charged offences under Commonwealth and New South Wales law and was prosecuted at trial and on appeal by the Commonwealth Director of Public Prosecutions with the authority of the Director of Public Prosecutions for New South Wales.

3. [3]

   Count 1 of the indictment was in the following terms:

4. [4]

   Counts 2 and 3 of the indictment alleged that the applicant as a director of Healthzone supplied misleading information concerning its affairs to the Australian Securities Exchange Ltd (ASX), contrary to ss 1309(1)(c),(d) and 1311(1) Corporations Act. It is unnecessary to set out the terms of the charge in detail.

5. [5]

   Counts 4-9 of the indictment related to conduct resulting in falsification of books relating to the affairs of Healthzone. Those counts are in the following terms:

6. [6]

   Following a trial by a jury, the applicant was convicted of all the counts in the indictment. On Count 1, he was sentenced to a term of imprisonment of three years and six months commencing on 24 August 2018 and expiring on 23 February 2022, with a non-parole period of 18 months to expire on 23 February 2020.

7. [7]

   On Counts 2 and 3, he was sentenced to nine months’ imprisonment commencing on 24 November 2017 and expiring on 23 August 2018, whilst on Counts 4-9 he was sentenced to three months’ imprisonment commencing on 24 November 2017 and expiring on 23 February 2018. It can thus be seen that the sentences for Counts 4-9 inclusive were made wholly concurrent with the sentences for Counts 2 and 3.

Grounds of Appeal

1. [8]

   The applicant has appealed against his conviction and sentence. Amended grounds of appeal were filed by the applicant on 30 November 2018. The amended grounds of appeal state:

The Crown Case on Count 1 - Conspiracy to Dishonestly Obtain a Financial Advantage by Deception

1. [9]

   During 2011, the applicant was the Executive Chairman and Chief Executive Officer of Healthzone, an ASX listed company. Mr Ge Wu (otherwise known as Michael Wu) was an Executive Director of Healthzone.

2. [10]

   The conspiracy alleged involved an agreement between the applicant and Mr Wu that they would obtain a $1 million advance from the Commonwealth Bank of Australia Ltd (CBA) by dishonestly informing both the board of Healthzone and the CBA that the funds which were ultimately to be advanced to the applicant were to be used to acquire shares in Healthzone, whereas, in fact, they were to be used to repay a $900,000.00 debt owed by the applicant to his sister, a Ms Mary Ann Harper.

3. [11]

   The Crown alleged that it was recognised by the board of Healthzone that it was important for the applicant as Chief Executive Officer to be seen as having his interests aligned with that of Healthzone, which could be achieved by the applicant acquiring more shares in it.

4. [12]

   The Crown alleged that in early 2011, the applicant approached a Ms Ruth Chan of the CBA to discuss a personal line of credit or a margin loan to enable the applicant to obtain funds to purchase shares in Healthzone. The CBA was not prepared to make the loan to the applicant.

5. [13]

   The Crown alleged that in about April 2011, the applicant approached Mr Wu and urged him to commence discussions with Ms Chan about the CBA loaning Healthzone $1 million which would then be on-lent by Healthzone to the applicant, ostensibly for the purpose of purchasing shares in Healthzone.

6. [14]

   It was alleged by the Crown that to ensure the CBA and the board’s approval the applicant and Mr Wu agreed that they would not inform the CBA or Healthzone that the true purpose of the loan was to enable the applicant to meet his indebtedness to Ms Harper.

7. [15]

   On 11 May 2011, the Healthzone board met in Shanghai and approved a $1 million loan to the applicant for the specific purpose of increasing his shareholding in Healthzone. The minutes recorded that the directors took the view that Healthzone’s ability to raise capital in the future would be facilitated by increasing the applicant’s shareholding in the company. The Crown alleged that the applicant knew that if his fellow directors had known about the true purpose of the loan, they would not have approved the proposal.

8. [16]

   In order to create the false appearance that the applicant was in fact purchasing Healthzone shares, the applicant and Mr Wu entered into an arrangement to give the appearance that the applicant had purchased shares from two of Mr Wu’s relatives. The applicant did not pay Mr Wu’s relatives for the shares, although a share transfer form was executed and signed in June 2011. The transfer of the shares was a sham.

9. [17]

   On 17 May 2011, the CBA advanced $1 million to the Healthzone loan account. Later the same afternoon, the $1 million was transferred to a CBA account in the name of the applicant and his wife.

10. [18]

    The CBA approved the loan and advanced the funds, believing that the funds were to be on-lent to the applicant to purchase Healthzone shares.

11. [19]

    On 18 May 2011, $901,750.08 was withdrawn from the applicant’s bank account. An email was sent from the applicant to Mr Wu to give a false impression that the funds were to be used to pay for the shares, whereas the bulk of it was in fact paid to Ms Harper. On the same day, Ms Chan sent an email to the applicant indicating that the CBA was awaiting the public announcement to confirm that the applicant had used the loan funds to purchase shares in Healthzone.

12. [20]

    As we have indicated, the Crown alleged that the loan was obtained as a result of a conspiracy between the applicant and Mr Wu to deceive both the board of Healthzone and the CBA as to the true purpose for the loan.

The Crown Case on Counts 2-3 - Authorising the Making Available of Information Relating to the Affairs of a Corporation that was Knowingly False or Misleading in a Material Particular

1. [21]

   Following the email sent by Ms Chan to the applicant on 18 May 2011 (see [19] above), the Crown alleged that it became clear to the applicant that Ms Chan was monitoring the situation and awaiting an announcement with respect to the applicant’s purchase of shares with the loan funds.

2. [22]

   The applicant forwarded the email of 18 May 2011 to Mr Wu who suggested that the applicant prepare an Appendix 3Y Notice.

3. [23]

   On 14 June 2011, the applicant caused two announcements to be made - a Healthzone market update and an Appendix 3Y Notice to be published on the ASX. Both announcements stated that the applicant had purchased 813,131 Healthzone shares at $0.40 per share. Each announcement was drafted by the applicant and then sent to Mr Guy Robertson, the company secretary, with instructions to lodge each announcement on the ASX immediately.

4. [24]

   It was the Crown case that the announcements were false or misleading in a material particular because, at the time of lodgement, the applicant had not purchased 813,131 Healthzone shares.

5. [25]

   On 21 June 2011, Mr Robertson emailed the applicant stating that the Appendix 3Y Notice had been lodged, but that the current share registry did not reflect the share acquisition that had been announced. The applicant replied to Mr Robertson that he would lodge the necessary documents.

6. [26]

   In June 2011, the applicant took steps (as noted at [16] above) to create the false impression that the applicant was purchasing Healthzone shares.

7. [27]

   It was the Crown case that the arrangements between the applicant and Mr Wu were a sham to give the false appearance that the applicant had purchased the Healthzone shares, thereby concealing his misappropriation of the $1 million director’s loan.

The Crown Case on Counts 4-9 – Falsification of Books Affecting or Relating to the Affairs of Healthzone

1. [28]

   On 12 May 2011, the applicant sent an email to himself from his Healthzone email address to another email address which included the following chain of legitimate emails:

2. [29]

   On 12 May 2011, at 9.46am, the applicant forwarded to Ms Harper amended copies of the emails A1, A2, A3 and A4. Attachment B1 is the amended copy of Attachment A1. The red marking indicates deletions from the original, whilst the purple typescript shows additions. That email was the subject of Count 4.

3. [30]

   Attachment B2 is the amended copy of the email which is Attachment A2. Once again, the amendments are shown by the red deletions and the purple inclusions. This email was the subject of Count 5.

4. [31]

   Attachment B3 is the altered copy of Attachment A3. This document was the subject of Count 6.

5. [32]

   Attachment B4 is the altered copy of Attachment A4. This was the subject of Count 7.

6. [33]

   Attachment B5 is an amended version of minutes of a telephone directors’ meeting of Healthzone resolving to provide financial assistance to the applicant. Although we have not included the original as an attachment, the amendments are evident in the altered document. This document was the subject of Count 9.

7. [34]

   On 12 May 2011, the applicant sent an email to Ms Harper attaching a document which was an altered version of an email from Ms Chan to Mr Wu and others at 12.32pm on 2 May 2011. A copy of the document forwarded is Attachment B6. The alterations and additions are apparent from the document. It was this document which was the subject of Count 8.

Rule 4 Criminal Appeal Rules (NSW)

1. [35]

   As will be seen, of the 13 grounds of appeal against conviction, 12 of them (grounds 1(a)-(d), 2(a)-(e) and 3(a)-(c)) contain propositions which were not advanced by counsel who appeared for the applicant at trial.

2. [36]

   This Court determines grounds of appeal, whether relied upon as of right or by leave, in accordance with ss 5 and 6 Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). Rule 4 Criminal Appeal Rules (NSW) requires the leave of the Court for a ground of appeal to be taken with respect to a direction, omission to direct, or decision as to the admission or rejection of evidence unless objection was taken at the trial to the direction, omission, or decision by the party appealing.

3. [37]

   The Crown submitted that r 4 applied with respect to the applicant’s conviction grounds.

4. [38]

   Mr Glissan QC, for the applicant, submitted that r 4 has no real role to play in this case because of ground 4 which alleged incompetent representation of the applicant at trial. It was submitted, as well, that a number of the grounds did not fall squarely within the parameters of r 4 so that the provision was not to be applied in any event.

5. [39]

   Accordingly, the application of r 4 will play a major part in the determination of the applicant’s appeal.

6. [40]

   With respect to r 4, McHugh J said in Papakosmas v The Queen (1999) 196 CLR 297 at 319; [1999] HCA 37 at [72]:

7. [41]

   This and other authorities in relation to r 4 were collected by Heydon JA (as he then was) in R v Button; R v Griffen (2002) 129 A Crim R 242 at 253-255; [2002] NSWCCA 159 at [31]-[35]. It is also worth repeating the observations of Mahoney JA (as he then was) in R v Jeffrey (Court of Criminal Appeal (NSW), 16 December 1993, unrep):

8. [42]

   In ARS v R [2011] NSWCCA 266, the Court (Bathurst CJ, James and Johnson JJ agreeing) referred to McHugh J’s statement in Papakosmas v The Queen and then continued at [148]:

Grounds 1(a) and 3(a) – The Duplicity Grounds

1. [43]

   In considering these grounds, it is necessary to pay some regard to the manner in which the Crown put its case. The Crown opened on the basis that the agreement between the applicant and Mr Wu was to obtain the loan by deceiving both the CBA and Healthzone. Thus, the following remarks were made during the course of opening the Crown case:

2. [44]

   At the conclusion of the evidence, the Crown made the following submissions to the trial judge in the absence of the jury concerning the need for a unanimity direction:

3. [45]

   After this discussion, the Crown said the following in the closing address to the jury in respect to Count 1:

4. [46]

   The trial judge gave written directions as to the elements of the offence:

5. [47]

   Thereafter her Honour, referring to the written directions, gave the following additional directions in her summing-up:

The Parties’ Submissions

1. [48]

   Apart from generally criticising the conduct of counsel in the Court below and submitting that the applicant should not have been charged with conspiracy rather than the underlying offence proscribed by s 192E Crimes Act 1900 (NSW), senior counsel for the applicant made no substantive submission on these grounds other than to say it is a case of “latent duplicity”.

2. [49]

   In the written submissions filed on behalf of the applicant, it was submitted that the case was opened on a number of alternative bases by the Crown. He submitted that the first involved an allegation that the applicant deliberately misled the CBA and obtained a loan on the basis of that deception. He suggested for that case to succeed, the Crown needed to establish that the applicant obtained the loan and assumed the associated debt, and that could not be established because the loan was a “non-recourse loan”. It is by no means clear why it was necessary to assume the debt as distinct from receiving the funds to obtain a financial advantage, nor is it an element of the offence that the conspiracy be successful or that an overt act be performed in furtherance of it. In any event, that proposition is not the subject of any ground of appeal.

3. [50]

   It was submitted that the Crown suggested as an alternative that the applicant and Mr Wu conspired to defraud Healthzone by misleading the board into borrowing from the CBA on a false basis. It was submitted that formulation excluded the CBA transaction and evidence would need to have been limited to that relating to the applicant’s conduct in relation to the board.

4. [51]

   It was also submitted that the Crown sought to rely on a third formulation, namely, that both the CBA and Healthzone were duped. It was submitted that this did “not withstand critical analysis” and in any event contained “inherent latent duplicity as to the victim of the alleged conspiracy”. It was not made clear why it did “not withstand critical analysis”. The reference to the victim of the conspiracy presumably referred to the person who was deceived, be it either the board of Healthzone, the CBA or both.

5. [52]

   The applicant submitted that the remarks of the Crown to which we have referred at [45] above, demonstrated that the Crown was aware of the duplicity problem. He also referred to the fourth and fifth sentences of the passages from the summing-up which we have extracted at [47] above, but stated that no reference to these matters was made in the written statements of the elements of the offence. That submission ignores the fact that the trial judge’s remarks were made in the context of explaining the elements set out in the written direction to the jury.

6. [53]

   The Crown submitted that its case, as clearly articulated, was that the applicant conspired with Mr Wu by entering into a single agreement, the purpose of which was to dishonestly obtain a single advantage of a $1 million loan by deception. The overt acts involve the deception of both the CBA and Healthzone. The Crown referred to the passages in opening which we have extracted at [43] above.

7. [54]

   The Crown submitted that the Crown case was that the applicant and Mr Wu agreed that the loan funds obtained would not be used to purchase Healthzone shares as represented but, rather, for the purpose of enabling the applicant to pay his personal debts.

8. [55]

   The Crown submitted that for the applicant to achieve this purpose, both the board of Healthzone and the CBA had to be deceived. There was no question of duplicity as the Crown was relying on a single offence which involved the deception of both the CBA and Healthzone.

9. [56]

   The Crown accepted that in dealing with the documentary evidence, reference was made from time to time to deceiving Healthzone and on other occasions to deceiving the CBA. The Crown submitted that this was in the context of individual pieces of evidence which dealt with deception of the board of Healthzone on the one hand, and the CBA on the other.

10. [57]

    The Crown submitted that it raised the need for the unanimity direction (see [44] above) “out of abundant caution”. It referred to the decision of this Court in Pratten v R [2014] NSWCCA 117 which stated at [36] that “the question of ‘unanimity can arise when only one offence is charged and only one offence is proved but the jury is presented through the evidence led with more than one route to determine guilt’”. The Crown submitted that it was plain from the subsequent address that the Crown case was that both the CBA and the board of Healthzone were deceived.

Consideration

1. [58]

   The indictment on its face is not duplicitous in the sense that it does not charge the applicant with more than one offence (see Walsh v Tattersall (1996) 188 CLR 77 at 84; [1996] HCA 26). The offence charged is a single offence of conspiracy to, by deception, dishonestly obtain a $1 million loan.

2. [59]

   The applicant contended that there were in effect two conspiracies, one to deceive the CBA and the other to deceive Healthzone. However, as the indictment was framed, there was only one agreement to obtain a financial advantage by deception, although theoretically only the CBA or Healthzone may have been deceived in the course of carrying out the conspiracy. In this context, it must be remembered that the elements of a common law conspiracy are an agreement to do the unlawful act with the intention that the common design be carried out. The actual commission of an overt act is not an element of the offence (see The Queen v LK (2010) 241 CLR 177 at 205-208, 228; [2010] HCA 17 at [57], [62]-[65], [117]). As French CJ pointed out in The Queen v LK (at [57]) citing The Queen v Rogerson (1992) 174 CLR 268 at 281; [1992] HCA 25, “the commission of an overt act was … a basis from which the criminal agreement could be inferred”.

3. [60]

   However the applicant also contended that this was a case of latent duplicity, the latent duplicity emerging in the summing-up when it was suggested that it would be open to the jury to find that the agreement was to deceive the CBA and Healthzone, or an agreement to deceive the CBA or an agreement to deceive Healthzone.

4. [61]

   The written direction given by the trial judge to the jury correctly identified the elements of the offence, stating, as we have pointed out, that it was not necessary for the Crown to prove that the agreement was carried into effect, as distinct from proving that the conspirators intended it to be carried into effect. However, it is correct, as the applicant pointed out, that ultimately she left the matter to the jury on the basis of three alternative agreements (see [47] above).

5. [62]

   The concept of latent duplicity or latent ambiguity was explained by Dixon J in Johnson v Miller (1937) 59 CLR 467 at 486; [1937] HCA 77 as referring to circumstances where “the facts or the alleged facts disclosed a latent ambiguity in the complaint”. In such a case, his Honour said at 489 that the prosecutor “should be required to identify the transaction” on which he or she relies.

6. [63]

   In S v The Queen (1989) 168 CLR 266; [1989] HCA 66, Dawson J stated at 277 that “where there is real ambiguity and the point is taken … failure to correct the ambiguity means that the accused has not had a proper trial and there is, for that reason, a substantial miscarriage of justice”. Gaudron and McHugh JJ explained the rationale for the rule in the following terms at 284-285 (citations omitted):

7. [64]

   Related to this issue is the requirement that the precise nature of the conspiracy be carefully analysed prior to the commencement of the proceedings and the count must comply with the general rule of charging one offence only (Gerakiteys v The Queen (1984) 153 CLR 317 at 333; [1984] HCA 8).

8. [65]

   In the present case, the Crown opened and closed its case on the basis that the agreement between the alleged co-conspirators was to deceive both the CBA and Healthzone. The trial judge gave the direction because of the concern that the jury might form the view that the offence was made out whilst not agreeing as to who was deceived.

9. [66]

   With respect, it would have been more desirable to have informed the jury that for the case put by the Crown to be made out it was necessary for them to be satisfied beyond reasonable doubt that the agreement was to deceive both the CBA and Healthzone and that it was the intention of the applicant to give effect to this agreement. The summing-up, suggesting the possibility that there were three alternative agreements which might prove the offence, gave rise to a problem of latent duplicity or ambiguity.

10. [67]

    Nonetheless, no objection was taken at the trial, either at the time the issue was raised by the Crown, nor to the portion of the summing-up to which we have referred. In these circumstances if r 4 of the Criminal Appeal Rules (NSW) applies, it is necessary for the applicant to obtain leave to raise this ground.

11. [68]

    Although there has been some debate as to whether r 4 has application in a case of latent duplicity (see the cases cited in ARS v R at [152]), in our opinion it does have application in the circumstances of the present case. The problem did not arise from the indictment itself, or from the way the Crown put its case, but rather from the direction which was given because of the concern for a unanimous verdict. In these circumstances, r 4 which expressly deals with failure to object to directions by the trial judge does have application.

12. [69]

    In the present case, we do not think that there was a miscarriage of justice. The case was framed from beginning to end as an agreement to obtain an advance from the CBA to Healthzone, and then to the applicant, by deceiving both the CBA and Healthzone as to the purpose of the advance. Further, the fraudulent transaction could only succeed if both the CBA and Healthzone were deceived and there was no evidence to suggest that either Healthzone or the CBA were aware of the true purpose of obtaining the loan. The fact that each was deceived of itself provides evidence that that was what was intended by the parties to the agreement.

13. [70]

    Further, even in the passage complained of in the summing-up, the trial judge emphasised on two occasions that the Crown case was that there was an agreement to deceive both the CBA and Healthzone.

14. [71]

    For these reasons, it does not seem to the Court that the remarks by the trial judge, or for that matter those of the Crown, led to a miscarriage of justice in the sense that the applicant lost a real chance of acquittal. In these circumstances, leave to raise this ground should be refused (Picken v R; R v Picken [2007] NSWCCA 319 at [19]-[22]; ARS v R at [146]-[148]).

15. [72]

    We would only add that this conclusion does not depend on an assessment of trial counsel’s competence but rather on an evaluation of whether what occurred gave rise to a miscarriage of justice. That being said, there is nothing to suggest that the applicant was not represented at the trial by competent trial counsel.

Ground 1(b) – Complaint Concerning Joinder of Offences in the Indictment

1. [73]

   Counts 2-9 all related to offences under various provisions of the Corporations Act. The first (conspiracy) count, was a charge of a common law conspiracy to commit an offence contrary to s 192E Crimes Act.

2. [74]

   By ground 1(b), the joinder of these charges was said to be “impermissible” and the applicant was said to have been deprived of a “fair trial according to law and of a fair chance of acquittal” by the joinder. This ground of appeal continues by asserting that the joinder meant that the applicant was “thereby” precluded from trial on the conspiracy count by judge alone and therefore lost the chance of acquittal.

3. [75]

   The applicant submitted that each of the Commonwealth statutory offences could have been dealt with summarily and that each of them was “for a technical breach of the law, unrelated to the conspiracy or to the co-conspirator who gave evidence for the prosecution”.

4. [76]

   Interpolating here, to the extent that the expression “technical breach of the law” may be thought to connote a breach which was trivial or of some diminished importance, we disagree. As will be seen when considering grounds 1(d) and 3(b) relating to the books of the company, any characterisation of those offences which seeks to trivialise them is wholly inapt and unjustified. Further, as shall also be seen, the critical assertion by the applicant that the Commonwealth statutory offences were “unrelated” to the conspiracy or to the co-conspirator who gave evidence for the prosecution is also flawed.

5. [77]

   The applicant submitted, based on the flawed premise that there was no relationship between the falsified records of the company and the conspiracy charge, that the joinder of the Commonwealth and State offences meant that there was introduced voluminous and confusing material relating to the Commonwealth offences which affected the fairness of the trial in essence because, so the applicant contended, the volume and nature of the material effectively meant that it was too complex for a jury to comprehend. This argument also lies at the heart of grounds 3 and 4 which are considered below.

6. [78]

   The applicant submitted that the proper course to have been taken would have been for the indictment to be severed and for the trial on the conspiracy count to have been separately heard and determined from the Commonwealth statutory offences. The applicant was forced to concede, however, that counsel for the applicant did not take any point in relation to this at trial.

7. [79]

   Any such objection to the joinder of the offences, had there been a valid basis for it, should have been taken before the trial. In this context, s 29(1) Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) provides that:

8. [80]

   Section 29(1) is an important provision designed to promote and facilitate the fair and efficient disposition of criminal justice. It affords the court a broad power to hear and determine related offences. In this regard, as Mr Glissan QC accepted, the expression “arise out of” in subsection (b) is of particularly broad ambit. It is an expression which is used in other contexts to promote the efficient resolution of related disputes: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165.

9. [81]

   Section 29(3) Criminal Procedure Act is also important:

10. [82]

    In the context of s 29(3), this Court has observed that the interests of justice extend beyond the interests of an accused person, with the interests of the Crown, witnesses and the public to be considered as well: Osman v R [2006] NSWCCA 196 at [22]. In a different context, the High Court of Australia has observed that the interests of justice will often pull in different directions, involving consideration of the interests of an appellant (an accused person) as well as the interests of the Crown and the community: Kentwell v The Queen (2014) 252 CLR 601 at 614; [2014] HCA 37 at [32].

11. [83]

    In addition to the broad power given to the court to hear and determine proceedings relating to two or more offences which arise out of the same circumstances, the Crown has a very broad discretion to decide upon what offences an accused is to be brought to trial by way of indictment: R v McCready (1985) 20 A Crim R 32 at 39. In Pearce v The Queen (1998) 194 CLR 610 at 620; [1998] HCA 57 at [30], McHugh, Gummow and Hayne JJ said that (footnote omitted):

12. [84]

    This observation in Pearce v The Queen, together with the terms of s 29 Criminal Procedure Act, provides a complete and powerful answer to the applicant’s submission that the joinder of Commonwealth and State charges was in some way “impermissible”. The applicant cited no authority in support of that contention and it is clearly wrong as a matter of law.

13. [85]

    There is no doubt, in our opinion, that the Commonwealth statutory offences charged arose out of the same set of circumstances as the conspiracy count. As submitted by the Crown, the conduct in Counts 2 and 3, being the provision of misleading information to the ASX directly related to Count 1 and was undertaken to ensure that neither the Healthzone board nor the CBA detected that the applicant did not or would not use the loan funds for the purposes for which they were, ostensibly, borrowed. These market releases were calculated to create the false appearance that the applicant had purchased shares in Healthzone with the loan funds and, as the learned trial judge noted in her remarks on sentence, Counts 2 and 3 were committed in an attempt to avoid detection of the misappropriation of the $1 million loan.

14. [86]

    The Crown also submitted, correctly in our opinion, that Counts 4 to 9 related to the other Counts on the indictment, involving as they did the falsification of documents to give the misleading appearance that the applicant had obtained financial approval from the CBA supported by Healthzone’s board for a personal loan, which he could use to pay the debt he owed to his sister.

15. [87]

    The Crown also submitted that it would have been completely impracticable for Count 1 to have been tried or dealt with separately from the balance of the charges as all of the evidence in relation to Count 1 would have to be led in any trial for Counts 2-9 in any event. It is precisely to avoid such impracticability and to promote efficiency, including in the use of limited judicial resources, that s 29(1) Criminal Procedure Act permits the joinder of charges such as occurred in the present case. Nor was there any reasonable basis for the Court to form an opinion that the matters ought to have been “heard and determined separately in the interests of justice” under s 29(3) Criminal Procedure Act.

16. [88]

    The Crown’s submission in this regard was reinforced by the unchallenged affidavit of Mark Dennis who appeared for the applicant at trial. Mr Dennis said in his affidavit that:

17. [89]

    In the absence of any challenge, and based upon our own analysis of the matter, there is no basis to question the correctness of the approach taken.

18. [90]

    There was no error and ground 1(b) should be rejected.

Ground 1(c) - Complaint Concerning Joinder of Counts Alleging Conspiracy and Substantive Offences

1. [91]

   Ground 1(c) contends that the applicant was denied a fair trial by the joinder of substantive offences to a conspiracy count in the same indictment, “contrary to law and accepted practice”.

2. [92]

   This ground, as amplified in written submissions, was largely repetitive of the complaint contained in grounds 1(b) and 2, namely that the joinder rendered the trial longer and more complex than it otherwise would have been, including by leading to the introduction of prejudicial evidence, the effect of which was said to be disproportionate to any evidentiary value it may have had.

3. [93]

   An aspect of the applicant’s submission was that the joinder violated what a majority of the High Court in The Queen v Hoar (1981) 148 CLR 32 at 38; [1981] HCA 67 described as “a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act”, the Court noting that it had “long been established that prosecutions for conspiracy and for a substantive offence ought not to result in a duplication of penalty”. Their Honours were speaking of a very different circumstance, in our opinion, to the present case, and the applicant’s submission was wholly at odds with the submission made under ground 1(b) that the Commonwealth charges that had been joined were wholly unrelated to the conspiracy count.

4. [94]

   The fact that there was, as we have found, a sufficient nexus for the purposes of s 29(1) and (3) Criminal Procedure Act to permit them to be joined did not attract whatever principle might otherwise be thought to derive from The Queen v Hoar, it being recalled that the majority was in that case only referring to a “practice” and the decision at most stands for the Court’s observation (at 38) that “[g]enerally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed” (emphasis added).

5. [95]

   The applicant also submits that the decision to include a charge of conspiracy was “clearly a decision made improperly by the [Commonwealth Director of Public Prosecutions (CDPP)] for a forensic advantage, which had the effect of depriving the applicant of a fair trial”.

6. [96]

   No application was made by the applicant in the District Court seeking to challenge the appropriateness of a conspiracy charge in this case. The Crown referred to the affidavit of Mr Dennis who said he specifically considered this issue prior to the trial but did not consider the applicant would suffer any forensic disadvantage given the central issue in the trial. Mr Dennis’ approach was understandable. The Crown case alleged an agreement between the applicant and Mr Wu. It was open to the Crown to charge the applicant with conspiracy. Further, this was not a case where the Crown obtained any forensic advantage by charging conspiracy in that statements of Mr Wu made in furtherance of the conspiracy would be admissible against the applicant in a manner which may disadvantage the applicant. Here, the Crown called Mr Wu to give evidence in the Crown case and the applicant had the opportunity to challenge his evidence if he saw fit to do so.

7. [97]

   Mr Dennis was not challenged on this evidence and, in the absence of any application being made at the trial concerning the charging of conspiracy, we would reject this ground of appeal which required leave pursuant to r 4 Criminal Appeal Rules (NSW).

8. [98]

   Subject to the competence of counsel ground considered below, the applicant should be held to the way the trial was conducted on his behalf. A case for the grant of leave pursuant to r 4 has not been made out and ground 1(c) must be rejected.

Grounds 1(d) and 3(b) – The Emails the Subjects of Counts 4-9 in the Indictment were not Books of Healthzone

1. [99]

   Senior counsel for the applicant submitted that the altered documents did not satisfy the definition of “books of the company”, submitting that “the mischief that’s intended to be addressed [was] … making some alteration in relation to the affairs of the company properly so-called”. He rejected the proposition that one of the purposes of the provision was to prevent people altering the records of company and using those altered records to conceal the true position in relation to the company, submitting that the aim is “to preserve inviolate the records of the company from the company’s perspective”.

2. [100]

   Senior counsel for the applicant recognised that it had been conceded in the Court below that the documents were in fact “books relating to the company”. He submitted that this concession should not have been made.

3. [101]

   In his written submissions, the applicant submitted that the “books” relied upon were private emails passing between him and his sister. He referred to what was said on this issue by Austin J in Australian Securities and Investments Commission v Rich (2005) 216 ALR 320; [2005] NSWSC 417. That case, so far as relevant, concerned the admissibility into evidence of certain records under s 1305(1) Corporations Act which provided as follows:

4. [102]

   In Australian Securities and Investments Commission v Rich, Austin J, after reviewing the conflicting authorities on s 1305, came to the conclusion at [265] that he should approach the application of s 1305 in the case before him on the basis that the word “kept” meant “retained or held”.

5. [103]

   The passages in his Honour’s judgment at [244]-[245] relied upon by the applicant contained part of the analysis of earlier cases reviewed by his Honour in the course of reaching his conclusion at [265]. The other passages relied upon at [293]-[296] concerned the question of whether the documents sought to be tendered were in fact “financial records” of the company. His Honour’s conclusion on that issue has no relevance to the present case.

6. [104]

   Further, it must be remembered that the wording of s 1307 Corporations Act is different to that of s 1305. Section 1305 deals with books kept by a company, whilst s 1307(1) refers to books affecting or relating to the affairs of the company. The section is in the following terms:

7. [105]

   In his written submissions, the applicant submitted that the emails did not affect or relate to the affairs of Healthzone as they were “misrepresentation[s] to a non-commercial unrelated third party for purposes not involving the affairs of the company and certainly not affecting them”.

8. [106]

   The Crown referred to what it described as the expansive definition of affairs of the company in s 53 Corporations Act. He submitted that each of the documents the subject of the charge related to the affairs of Healthzone and the fact that the applicant “disseminated them by emailing them to his sister”, did “not deprive the documents of their essential nature, namely relating to the affairs of the corporation”.

9. [107]

   The Crown submitted that the documents in question “directly related to the affairs of the company as they related to shareholding, financial dealings by the company with the bank and expenditure by the company”.

10. [108]

    It was submitted that “[t]he alterations and the subsequent dissemination … gave the false appearance that the bank had agreed to give the [applicant] a personal loan of $1 million and that the board had resolved to approve that arrangement”.

Consideration

1. [109]

   The construction of s 1307, like any other statutory provision, must begin with a consideration of the text itself which may require consideration of the context, including the general purpose and policy of the provision, in particular the mischief that it is seeking to remedy (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at 31 (French CJ) and 47-47 (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41 at [4], [47]).

2. [110]

   The term “relating to” is an expression which has been described as “extremely wide but … also vague and indefinite” and “all that a court can do is to endeavour to seek some precision in the context in which the expression is used” (Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620 per Taylor J; see also Kitto J at 618; [1961] HCA 35).

3. [111]

   In Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33, in dealing with the phrase “in relation to”, French CJ and Hayne J stated at [25] that it was “a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ”. They also “accepted that ‘the subject matter of the inquiry, the legislative history, and the facts of the case’, are all matters that will bear upon the judgment of what relationship must be shown” (see also Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133 at 219 (McHugh J); [1999] HCA 62 at [242]; see also the cases cited by Fitzgerald JA in Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416 at [56]; (1999) 168 ALR 211 at 224-225).

4. [112]

   The legislative history provides little assistance. The section originated in s 83 Larceny Act 1861 (Larceny Act), 24 and 25 Vict, c 96 which was in the following terms:

5. [113]

   A provision in somewhat similar terms was contained in s 166 Companies Act 1862, 25 and 26 Vict, c 89. However, the section only applied to a “Director, Officer or Contributory of any Company wound-up” under that Act.

6. [114]

   The Larceny Act provision was adopted in New South Wales by s 183 Criminal Law Consolidation Act 1883 (NSW) (Criminal Law Consolidation Act), whilst the Companies Act 1862 provision was adopted in s 217 Companies Act 1874 (NSW).

7. [115]

   The Criminal Law Consolidation Act provision was inserted into the Crimes Act 1900 (NSW) (s 175) but repealed in 2009. The Companies Act 1862 provision was adopted in successor legislation, but was amended in 1971 to exclude its limitation to the companies being wound-up. Its present form, subject to irrelevant amendments, can first be found in s 560 Companies (NSW) Code 1981 (NSW).

8. [116]

   Such Explanatory Memoranda as there are in relation to the provision and its various amendments do not provide any assistance to the question of construction which arises in the present case.

9. [117]

   The applicant placed some reliance on cases interpreting s 1305 and in particular the reference in s 1305(1) to a “book kept by a body corporate under a requirement of this Act”. There are two difficulties with this approach.

10. [118]

    The first is that the width of the expression “kept by the company” or “kept by a body corporate” has been the subject of a degree of judicial debate. In some cases, a narrow construction has been preferred. Thus in Residues Treatment and Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54, Perry J in dealing with the equivalent section in predecessor legislation (s 550(1) of the Companies (SA) Code) stated at 77 that “it should be in the nature of a document or record which is in some way maintained by the corporation in a systematic or periodic fashion”. A similar view was expressed by the Federal Court in Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595 at 599-600, whilst a decision of the Full Court of the Supreme Court of South Australia limited the section to books “brought into existence, by or on behalf of a company, and maintained in its custody by virtue of an express obligation to do so imposed by the [then] Corporations Law itself” (Sheahan v Northern Australia Land and Agency Co Pty Ltd (1994) 176 LSJS 257). On the other hand, a number of other decisions have given the word “kept” what is described as its “ordinary meaning”, namely, to maintain and retain (The Duke Group Ltd (in liq) v Pilmer (1994) 63 SASR 364; Valoutin Pty Ltd v Furst (1998) 154 ALR 119; Caratti v R (2000) 22 WAR 527; [2000] WASCA 279; R v Turner (No 17) (2002) 10 TasR 388; [2002] TASSC 18). The decisions are summarised in Australian Securities and Investments Commission v Rich (at [242]-[252]) and there is no need to consider them in any greater detail in this judgment).

11. [119]

    The second difficulty is that as referred to above, s 1307 does not use the expression “kept or prepared by the company” but rather “affecting or relating to affairs of the company”. The expression “affairs of a body corporate” is defined in s 53 Corporations Act so far as relevant in the following terms:

12. [120]

    The documents the subject of the charges prior to alteration contain advice to Healthzone concerning the legality of Healthzone providing financial assistance to the applicant (the document the subject of Count 4), the email forwarding the advice to Ms Chan of the CBA (the document the subject of Count 5), the email from Ms Chan to Mr Wu setting out the CBA’s further requirements (the document the subject of Count 6), a response from Mr Wu to Ms Chan supplying the information (the document the subject of Count 7), a document from Ms Chan to Mr Wu recording the basis on which the CBA would be prepared to provide the loan to Healthzone (the document the subject of Count 8) and minutes of a directors’ meeting of Healthzone approving the loan (the document the subject of Count 9). The documents concerned transactions and dealings of Healthzone and thus fall within s 53 Corporations Act.

13. [121]

    However, it does not necessarily follow that the falsification of any document which considers or refers to the affairs of the company will be a document relating to the affairs of the company within the meaning of s 1307. Section 1307 falls within Pt 9.3 which deals with books of the company. The purpose of the division is to make books that are required by the Corporations Act to be kept by the company readily available and available for inspection (s 1300-s 1304), to provide that the books kept by the company are admissible in evidence (s 1305), to preserve the safety and physical integrity of books required to be kept by the company (s 1306(3)) and to prohibit falsification of books affecting or relating to affairs of the company (s 1307).

14. [122]

    It follows from the context in which the provision appears that although s 1307 in its terms extends beyond books which are required to be kept by the Corporations Act, the section, in our opinion, is limited to books forming part of the records of the company or any securities (defined in s 92 Corporations Act) belonging to the company, and there must be a connection between those books and the company’s affairs.

15. [123]

    The falsification of a record required to be kept by the company relating to its affairs would clearly fall within the section, whilst falsification of correspondence between the company and third parties would not do so unless it affected or related to the affairs of the company as defined. Between these extremes, it is necessary to consider individual books to ascertain whether they fall within the prohibition or not. There is no doubt that in the present case the documents are “books”. “Books” are defined in s 9 Corporations Act to include “a document”. Further, the falsification of the minutes the subject of Count 9 is a falsification of a document required to be kept by the company by virtue of s 251A of the Corporations Act and made available to members by virtue of s 251B. It clearly falls within s 1307.

16. [124]

    The remaining documents, advice from Healthzone’s solicitor and correspondence between Healthzone and the CBA, were brought into existence by Healthzone or its banker for the purpose of the proposed loan by the CBA to Healthzone and the subsequent loan to the applicant. Having regard to the identity of the parties who brought the documents into existence, the subject matter and their purpose, the Court considers that they fall within the definition of “books” the subject of the prohibition in s 1307(1).

17. [125]

    It follows that the grounds of appeal relating to Counts 4-9 have not been made out.

Grounds 2(a)-(e) and 3(c) - Complaints About the Crown’s Reliance Upon Substantial Documentary Evidence at the Trial and the Evidence of the Applicant

1. [126]

   A theme which permeated submissions advanced for the applicant concerned the approach which ought be taken by the prosecution and defence in a jury trial for alleged white-collar crime involving a substantial volume of documents.

2. [127]

   Grounds 2(a)-(e) and 3(c) complain in various ways about the conduct of the trial and the Crown’s reliance upon a substantial volume of documentary evidence.

Conduct of Criminal Trials Involving a Substantial Volume of Documents

1. [128]

   Before moving to the particular complaints made, it is appropriate to make some general observations concerning the conduct of criminal trials involving substantial documentary evidence.

2. [129]

   In R v Milne (No. 1) (2010) 260 FLR 166 at 171; [2010] NSWSC 932 at [9], the Court observed:

3. [130]

   It is a common feature in criminal trials for offences of the present type, where a substantial volume of documentary evidence is to be tendered, for folders containing those documents to be prepared (usually in chronological order) for tender at the trial and with that tender occurring at an early point in the trial. In addition, courts have recognised the assistance which a jury may derive from the provision of appropriate summary documents, including charts and chronologies, as well as the use of s 50 Evidence Act 1995 (NSW) for proof of voluminous or complex documents.

4. [131]

   The importance of the orderly presentation of documentary evidence was emphasised in R v Milne (No. 1) at 171-172 [11]:

5. [132]

   It will usually be necessary for the Crown to tender the actual documents to demonstrate the course of events and communications, including (as in this case) alterations which are said to have been made to documents by the accused person. The tender of documents allows the jury, as the judges of the facts, to make findings concerning the contents of documents and to draw inferences which arise from all of the evidence in the trial.

6. [133]

   It is important, however, that an appropriate selection of documents be undertaken by the Crown well before the trial so that the documents to be tendered are those necessary to be placed before the jury. The selection of documents to be tendered should be based upon an assessment of the real issues in the trial. This is a process which involves defence counsel as well as the Crown. It would be wrong for the Crown to tender indiscriminately a large volume of documents when it is likely that a narrower selection of documents will bear upon the real issues in the trial. The case management provisions in the Criminal Procedure Act are intended to facilitate a process whereby the real issues in the trial are identified with a consequence, amongst others, that only pertinent documents may need to be tendered and certain witnesses called.

7. [134]

   Adherence to case management requirements is of considerable importance. As Beech-Jones J observed in R v Dickson; R v Issakidis (No. 6) [2014] NSWSC 1368 at [30]:

8. [135]

   Division 3 of Pt 3 Criminal Procedure Act (ss 134-149F) contains case management provisions which are intended to reduce delay in proceedings on indictment. Those provisions are of particular use in trials which involve a substantial volume of documents. The purpose of these provisions is made clear in s 134 with the case management procedures including s 140 pre-trial conferences. The purpose of the pre-trial conference is to determine whether the accused person and the Crown are able to reach agreement regarding the evidence to be admitted at trial: s 140(4). Where agreement has been reached, a pre-trial conference certificate is to be prepared indicating the areas of agreement and disagreement regarding the evidence to be admitted at trial, with the certificate to be signed by the legal representatives for the parties: s 140(9). Except with the leave of the court, a party may not object to the admission of any evidence at trial which was the subject of agreement: s 140(10). The court is not to grant leave under s 140(10) unless it is of the opinion that it would be contrary to the interests of justice to refuse leave: s 140(11).

9. [136]

   A trial judge is entitled to expect that prosecution and defence counsel will facilitate the way in which evidence is adduced at trial, in discharge of the obligations of the prosecutor and defence counsel under the provisions in ss 134-149F Criminal Procedure Act and r 58 Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW): Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 at [69].

10. [137]

    In Commonwealth Director of Public Prosecutions v Burrows, the Court noted at [72]:

The Trial of the Applicant

1. [138]

   A s 140 pre-trial conference (attended by trial counsel) took place in this case on 28 July 2017, leading to the issue of a certificate dated 31 July 2017 signed by the parties for the purpose of s 140(8). The certificate included the following:

2. [139]

   Exhibit 1 at the trial comprised the two volumes of documents tendered by the Crown, without objection, in the course of the Crown opening address. These documents had been made available to the applicant’s legal representatives some time before trial. It is unsurprising that the s 140 procedure was utilised in this case, in a manner which allowed the trial to unfold with the jury receiving the two folders of documents at an early stage of the trial. The flow diagram referred to in paragraph 3(b) of the certificate constituted a good example of the use of a summary document to assist the jury in the trial. The marked-up documents referred to in paragraph 3(c) of the certificate were those referred to at [29]-[34] above, copies of which are annexed to this judgment. Clearly, these documents were useful exhibits for the purpose of the trial.

3. [140]

   It is appropriate to note paragraph 38 of the affidavit of Mr Dennis, where he said:

4. [141]

   In our view, the approach adopted by trial counsel for the applicant was appropriate and complied with his statutory and ethical obligations.

5. [142]

   The flavour of grounds 2(a)-(d) is that the jury was, in some way, overwhelmed by the documentary evidence in a manner which was unfair to the applicant. With respect to this general complaint, it is important not to underestimate the intelligence and common sense of jurors as to whether material is likely to have an undue or inappropriate impact upon the jury’s thought processes: R v Petroulias (No. 34) [2007] NSWSC 1462 at [64]-[66].

6. [143]

   Before the trial commenced, there was agreement concerning the tender of documents which became Exhibit 1. Those documents were furnished to the jury early in the trial and were referred to constantly during the evidence of witnesses and in addresses. The schedule contained in Attachment A to the Crown Supplementary Submissions dated 22 April 2019 demonstrates that virtually all of the documents contained in Exhibit 1 were referred to in evidence at the trial. This is not a case where Exhibit 1 contained a large volume of documents tendered in an indiscriminate manner by the Crown, with only some being referred to as being of importance to the issues in the trial.

7. [144]

   It is the case that a limited number of pages were duplicated in Exhibit 1, but this was explained largely by the tender of email chains and different iterations of documents. This was not a case of unnecessary duplication of documents. There is no realistic prospect that prejudice resulted to the applicant because of the very limited duplication of tendered documents which occurred in this case.

8. [145]

   A small number of documents relating to market manipulation were included in Exhibit 1 which, as the trial progressed, attracted attention from counsel. Both the Crown and trial counsel for the applicant took steps to lead evidence from witnesses in ways which passed over these documents in an innocuous way without any prejudicial consequences for the applicant. The affidavit of Mr Dennis explains in some detail (at paragraphs 42-62) what occurred with respect to this material.

9. [146]

   Although it may have been preferable for certain pages to have been removed from Exhibit 1 before it was tendered, the inclusion of those pages did not give rise to any detriment to the applicant, or cause prejudice to his case, in a manner which could lead to a conclusion that a miscarriage of justice resulted or that there was a risk of a miscarriage of justice. Accordingly, the particular complaint contained in grounds 2(d) and 3(c) ought be rejected.

10. [147]

    It has not been demonstrated that the use of Exhibit 1 throughout the trial gave rise to any unfairness to the applicant, let alone that it constituted a miscarriage of justice.

11. [148]

    It should be observed that, in response to a question from the Court, Mr Glissan QC did not articulate expressly what alternative course ought to have been taken at the trial with the documents in Exhibit 1. A theoretical alternative may have been for individual documents, or multiple bundles of documents, to have been tendered at different points during the course of the trial rather than the use of a single exhibit containing documents ordered in a chronological and logical order. This approach would have burdened the jury with multiple exhibits which would undermine the efficient, orderly and fair trial of the applicant as well as extending the length of the trial for no good purpose. Such an approach would have been quite contrary to the statutory regime for pre-trial and trial management in the Criminal Procedure Act and also the professional and ethical obligations residing in both prosecution and defence counsel.

12. [149]

    The approach adopted in this trial concerning the tender and use of Exhibit 1 did not give rise to any injustice to the applicant. Grounds 2(a), (b) and (c) should be rejected.

13. [150]

    Ground 2(e) complains about the extended evidence of the applicant and contends that it rendered the trial unfair. There is no substance in this complaint. The applicant elected to give evidence and his evidence-in-chief and cross-examination were detailed and thorough. His evidence extended over a wide range of topics raised by the various counts in the indictment. An examination of the transcript of this evidence does not indicate unfairness to the applicant. Ground 2(e) is rejected.

14. [151]

    In summary, each of the complaints contained in grounds 2(a)-(e) and 3(c) is rejected. Leave to rely upon each of these grounds should be refused.

Ground 4 - The Competence of Counsel Ground

1. [152]

   Ground 4 asserts that the applicant was denied a fair trial or deprived of a fair chance of acquittal due to the incompetence of his trial counsel.

2. [153]

   No affidavit of the applicant was relied upon in support of the incompetent counsel ground. Without objection by the applicant, the Crown relied upon affidavits of the counsel and solicitor who appeared for the applicant at trial, being the affidavit of Mr Dennis affirmed 4 February 2019 and the affidavit of Robert Ibrahim Daoud affirmed 15 April 2019. Neither Mr Dennis nor Mr Daoud was cross-examined at the hearing in this Court.

3. [154]

   To make good a ground of appeal based upon alleged incompetence of trial counsel, it is necessary for an applicant to establish that what did or did not occur at trial occasioned a miscarriage of justice: TKWJ v The Queen [2002] 212 CLR 127 at 149-150; [2002] HCA 46 at [79]; Ali v The Queen [2005] HCA 8 at [18]; (2005) 79 ALJR 662 at 665.

4. [155]

   In Davis v R [2017] NSWCCA 257, Price J (Hoeben CJ at CL and Schmidt J agreeing) summarised the relevant principles at [59]:

5. [156]

   It has been said that, to the extent that it is reasonably possible, the focus of attention in determining an incompetent counsel ground should be the objective features of the trial process: Nudd v The Queen [2006] HCA 9 at [10]; (2006) 80 ALJR 614 at 619 (Gleeson CJ). The admissibility of an affidavit of trial counsel has been considered by this Court on a number of occasions with differing outcomes: Ahmu v R [2014] NSWCCA 312; Vella v R [2015] NSWCCA 148; Langelaar v R [2016] NSWCCA 143 at [73]-[80].

6. [157]

   In Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4, after referring to relevant authorities, Macfarlan JA (Rothman and Bellew JJ agreeing) said at 427-428 [31]:

7. [158]

   The approach outlined in Alkhair v R has been applied recently by Payne JA (Wilson and Ierace JJ agreeing) in Moustafa v R [2019] NSWCCA 89 at [40]-[58].

8. [159]

   In the present case, it was pertinent that strong allegations were made against trial counsel on a range of topics so that it was reasonable to allow counsel an opportunity to respond to those allegations. These constituted exceptional circumstances where reference to trial counsel’s evidence was necessary and appropriate.

9. [160]

   The applicant’s conviction appeal was conducted upon the basis that there were almost self-evident propositions which could be advanced to demonstrate that the applicant had been represented incompetently at trial, and that the various contentions contained in the conviction grounds of appeal had been made good.

10. [161]

    The written submissions filed for the applicant included strong allegations made against the Crown who appeared at trial as well as counsel who appeared for the applicant at first instance. None of the submissions advanced in writing were withdrawn at the hearing before this Court although senior counsel for the applicant diluted some of them in the course of oral argument.

11. [162]

    There are considerable hurdles which the applicant must clear in order to establish his incompetent counsel ground of appeal: Langelaar v R at [64]. The ultimate question for this Court is whether the applicant has established that what occurred at trial gave rise to a miscarriage of justice.

12. [163]

    To establish ground 4, it is necessary for the applicant to demonstrate not just that arguments could possibly have been put or objections taken by his counsel in the District Court. It is necessary for the applicant to demonstrate that there is a significant possibility that the acts or omissions of which he complains affected the outcome of the trial. This involves a practical and substantive enquiry and not merely a theoretical analysis of possible arguments that could have been advanced.

13. [164]

    An examination of the objective circumstances revealed in the trial record does not support the applicant with respect to ground 4. Events during the trial about which complaint is made (contained in grounds 1, 2 and 3) do not, when taken separately or together, support a conclusion that there has been a miscarriage of justice in the sense that the applicant has lost a chance of acquittal which was fairly open.

14. [165]

    This conclusion is fortified by the affidavit of Mr Dennis which responds in clear and persuasive terms to criticisms made of his conduct of the trial. Reference has been made to parts of that affidavit in determining other grounds of appeal.

15. [166]

    The applicant has failed to establish that he was denied a fair trial or deprived of a fair chance of acquittal because of the conduct of trial counsel. Ground 4 should be rejected.

Ground 5 - Appeal Against Sentence

1. [167]

   The applicant seeks leave to appeal against sentence in ground 5 which states “the aggregate sentences imposed in relation to the conspiracy and Corporations Law counts were too severe and exceeded a proper exercise of the sentencing discretion”.

2. [168]

   At the hearing in this Court, Mr Glissan QC acknowledged that this ground of appeal should be taken as contending that the overall sentence imposed upon the applicant was manifestly excessive.

3. [169]

   On 24 November 2017, her Honour Judge Yehia SC imposed the sentences set out earlier in this judgment (at [6]-[7]).

4. [170]

   The total effective term of imprisonment comprised a head sentence of four years and three months with an effective minimum term of two years and three months, with the applicant’s non-parole period expiring on 23 February 2020.

5. [171]

   With respect to Count 1, although the penalty for the common law offence of conspiracy is at large, her Honour had regard to the maximum penalty for an offence under s 192E Crimes Act 1900 (NSW) of 10 years’ imprisonment in fixing sentence for the conspiracy. With respect to the offences contained in Counts 2 and 3, the maximum penalty for each offence was five years’ imprisonment. For the offences contained in Counts 4-9, the maximum penalty for each offence was two years’ imprisonment.

6. [172]

   The principal complaint advanced for the applicant related to the accumulation of sentences in this case. It was submitted that the level of accumulation was excessive so that the total effective sentence imposed was manifestly excessive.

7. [173]

   The Crown submitted that both the individual sentences and the total effective sentence imposed upon the applicant lay within the proper exercise of discretion by the sentencing judge so that the appeal against sentence ought be dismissed.

8. [174]

   In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]:

9. [175]

   The sentencing judge explained her reasons for imposing the sentences in this case in careful and balanced sentencing remarks.

10. [176]

    A finding was made that the conspiracy offence in Count 1 fell at the middle of the range (but not at the high end of the range) of objective seriousness for offences of that type. That conclusion was plainly open to the sentencing judge.

11. [177]

    With respect to Counts 2 and 3, her Honour was satisfied that the applicant’s criminal conduct was objectively serious. Her Honour explained why sentences of full-time imprisonment were required for Counts 2 and 3, before concluding that entirely concurrent sentences were appropriate for those offences.

12. [178]

    The sentencing judge found with respect to Counts 4-9 that the conduct was objectively much less serious, and fell at the lower end of the range for offences of that type. Having considered all relevant factors, her Honour concluded that sentences of full-time imprisonment were required for those offences, but that they should be served concurrently.

13. [179]

    It was entirely open to her Honour to determine that the sentence for Count 1 should be made cumulative upon the sentences passed for Counts 2 and 3.

14. [180]

    Her Honour had regard to all relevant objective and subjective factors. It did not assist the applicant that he had prior convictions for market manipulation offences committed in the period 2007 to 2011.

15. [181]

    To the extent that the applicant relied at first instance and in this Court on a limited number of sentencing decisions in other cases, it is sufficient to observe that none of those decisions assists the applicant in his claim of manifest excess.

16. [182]

    The sentencing judge had regard to the principle of totality and made a finding of special circumstances with respect to the first count, the State offence. All relevant factors were taken into account including statutory factors contained in s 16A Crimes Act 1914 (Cth) and the Crimes (Sentencing Procedure) Act 1999 (NSW).

17. [183]

    Having regard to principles concerning accumulation, concurrency and totality, it was entirely open to the sentencing judge to determine the levels of concurrency and accumulation reflected in the sentences imposed for the different classes of offences.

18. [184]

    The applicant has not demonstrated that the overall effective sentence was manifestly excessive. The sentences imposed upon the applicant lay comfortably within the reasonable exercise of sentencing discretion in the circumstances of this case.

19. [185]

    The applicant has not made good his challenge to the sentences imposed in the District Court.

The Applicant Seeks to Make Further Submissions After the Hearing in the Court of Criminal Appeal

1. [186]

   Following the hearing of the matter in the Court on 23 April 2019, the Registrar of the Court of Criminal Appeal received an email from the applicant’s solicitor indicating that the applicant personally sought to make further submissions (over 60 pages and three folders of material). The Registrar was informed that these submissions had been prepared by the applicant himself and had not been endorsed by his counsel or solicitor.

2. [187]

   The Crown opposed the applicant’s request to furnish further submissions and material to the Court.

3. [188]

   The Court determined not to receive those submissions and material and the parties were so informed.

4. [189]

   The applicant was represented at the hearing of his application for leave to appeal against conviction and sentence by experienced senior and junior counsel. Two sets of written submissions were furnished to the Court by counsel on behalf of the applicant, and senior counsel addressed the Court at the hearing on 23 April 2019, at the conclusion of which the Court reserved judgment.

5. [190]

   It is noteworthy that the applicant’s counsel and solicitor were not seeking to make further submissions to the Court. They were not prepared to endorse and advance these submissions. Rather, whilst continuing to have counsel and solicitor on the record for the purpose of the proceedings, the applicant sought himself to make submissions to the Court together with the provision of additional material.

6. [191]

   In refusing this application by the applicant, the Court had in mind what was said by McHugh J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330; [2003] HCA 28 at [29]-[31]:

7. [192]

   In Nguyen v R [2008] NSWCCA 322, this Court refused to receive an unsolicited document from counsel containing supplementary written submissions furnished after the hearing of the appeal. In the course of explaining this ruling, Tobias JA (James and Price JJ agreeing) said at [30]-[31]:

8. [193]

   In circumstances where detailed written and oral submissions had been presented by senior counsel appearing for the applicant, it was not appropriate for the Court to receive material from the applicant personally. This was especially so at a time when he continued to be represented by counsel and solicitor who were not prepared to apply to the Court for them to make further submissions on his behalf. Even if such an application had been made by the applicant’s legal representatives, the principles to which the Court has referred emphasise the very high hurdle which would have stood in the way of the application.

9. [194]

   Even after the applicant was informed of the Court’s refusal to receive the submissions and material, the applicant communicated with the Registrar of the Court of Criminal Appeal directly on and after 17 June 2019. Nothing contained in those communications assists the applicant in this appeal.

Conclusion and Orders

1. [195]

   It must be said that this application has the flavour of an “armchair appeal”, where counsel not involved in the trial have gone through the record of the trial in minute detail looking for error or possible arguments, without regard to the manner in which the trial was conducted: R v Fuge (2001) 123 A Crim R 310 at 319-330; [2001] NSWCCA 208 at [40]-[45]; Darwiche v R (2011) 209 A Crim R 424 at 429-430; [2011] NSWCCA 62 at [170]. The additional step taken in the present case was the addition of a generalised claim of incompetent representation by trial counsel (ground 4) which was sought to be used, without success, as a type of broad antidote to the r 4 difficulty confronting the other grounds of appeal. Neither the use of “armchair appeals” nor dubious claims of incompetent representation is to be encouraged by this Court.

2. [196]

   The applicant has failed to establish any of his grounds of appeal with respect to conviction and sentence.

3. [197]

   Given the construction issue raised by ground 3(b), leave should be granted under r 4 for the applicant to rely upon that ground, but the ground itself should be rejected.

4. [198]

   The applicant otherwise requires leave under r 4 or s 5(1) Criminal Appeal Act (or both) to rely upon each of the remaining grounds of appeal with respect to conviction and sentence. In light of the conclusions reached by the Court concerning grounds 1(a)-(d), 2(a)-(e) and 3(a) and (c), leave under r 4 should be refused. The applicant should be refused leave under s 5(1)(b) Criminal Appeal Act with respect to ground 4. Leave to appeal against sentence should be refused under s 5(1)(c) Criminal Appeal Act.

5. [199]

   The Court makes the following orders: