R v Kelu; R v Millner (No 3)

At the end of week 3 of this trial, one of the co-accused, Cedric Millner, applied to discharge the jury. After hearing some preliminary argument, I invited the parties to further consider the matters raised by Ms Hall SC for Mr Millner over the weekend and indicated that I would hear further argument on the application on Monday 19 June 2023. Over the weekend, both Ms Hall and the Crown provided written submissions in support of their positions.

At the commencement of the hearing today, Ms Hall confirmed that her client was pursuing the application and the Crown confirmed that it continued to oppose the application.

The parties agree that, in considering the application and determining whether to discharge the jury, I must be satisfied to a high degree of necessity that if the jury is not discharged, there is a substantial risk of a miscarriage of justice to the accused, Mr Millner. I have regard to that principle in considering the application.

The basis of the application was set out briefly by Ms Hall on 16 June 2023 and is otherwise contained in her written submissions of that date.

The basis of the application is that the Crown prosecutor informed the co-accused on the evening of Thursday, 15 June 2023 that the Crown no longer intended to call a witness who was on the Crown witness list, being Ms Janie Simpson. Ms Simpson was the CEO of ABC Gold Bullion (“ABC”), being the company from which the gold which is at the heart of this trial was originally purchased.

Mr Millner says that Ms Simpson is a material witness and that his case has thus far been conducted on the basis that Ms Simpson would be called to give oral evidence. That includes:

According to Mr Millner, the failure of the Crown to call Ms Simpson will lead to prejudice on his part and gives rise to a substantial risk of a miscarriage of justice.

In her written submissions, Ms Hall submits that unfair prejudice will arise if the jury is not discharged in circumstances in which:

Specifically, Ms Hall identifies that, in the absence of calling Ms Simpson, it may be that the documentary material relating to Lucky Jade and the earlier evidence of the Operations Manager of ABC, Ms Ronaldson, about the usual practice of ABC, might give rise to suggestion of some special or different treatment being provided to Mr Millner and an inference that Mr Millner sought and received a benefit to which he was not entitled.

The Lucky Jade material consists of a number of documents which evidence a commission being paid by ABC to Lucky Jade following the introduction of a group of people referred to in this trial as the Koreans holidaymakers to ABC in 2013. Mr Millner was not a director of Lucky Jade; he was an undischarged bankrupt in 2012 and 2013.

I understand Ms Hall’s concern to be that the evidence of payment of the commission to Lucky Jade, in circumstances in which there was also evidence that Mr Millner was associated with Lucky Jade, may tend to suggest, in the minds of the jury members, that Mr Millner had entered into some sort of special arrangement with ABC and was acting dishonestly in doing so.

Ms Hall calls to her aid the evidence of Ms Ronaldson and the examination-in-chief of Ms Ronaldson. Ms Ronaldson was asked whether there was a practice at ABC of paying a commission to any person if they brought in business by way of purchases. The answer is recorded as “(Witness nodded)”. There was then a follow-up question:

She then said that she had not subsequently become aware of any other circumstances where a person or entity was paid a commission.

As I understand this submission, Ms Hall made a forensic choice in dealing with that evidence on the basis that Ms Simpson would be called to give evidence, and further, if Ms Ronaldson’s evidence is left as it is, there may be a reasonable inference available that there was something untoward going on between Ms Simpson and Mr Millner.

Further, Ms Hall raises the evidence of Ms Ronaldson about agreements that appear to have been made between ABC and three of the Korean holidaymakers, pointing to Ms Ronaldson’s evidence to the effect that she had never observed that practice at ABC. Ms Hall says that the Crown’s opening on this material seemed to suggest that those documents were fraudulent. Ms Hall submits that if Ms Simpson does not give evidence to address this point, the jury will be left with information to the effect that Mr Millner was not only getting special treatment at ABC, but that he was breaking the rules. This calls into question Mr Millner’s honesty.

The Crown acknowledges that Ms Simpson was on the witness list. However, the Crown submits that merely being on the witness list does not impose an undertaking on the Crown to call the witness.

Of course, as is well-known, the obligation of the prosecutor in our adversarial system of justice must be to act:

As was said in Diehm and Anor v The Director of Public Prosecutions (2013) 303 ALR 42; [2013] HCA 42 at [63] per French CJ, Kiefel and Bell JJ (citing Dyers v The Queen (2002) 210 CLR 285 at 293; [2002] HCA 45 per Gaudron and Hayne JJ):

Having said that, it remains up to the prosecutor to decide what witnesses will be called and to “determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused”; see R v Soma (2003) 212 CLR 299; [2003] HCA 13 at 309 per Gleeson CJ, Gummow, Kirby and Hayne JJ.

The prosecutor has a discretion as to which witnesses are called; again, provided that that discretion is exercised having regard to the need to ensure a fair trial for the accused.

In this case, the prosecutor says that although Ms Simpson was on the witness list, the Crown has not been able to confer with Ms Simpson. That is because when a conference was arranged, Ms Simpson attended with her legal representative and refused to answer questions and then left. The Crown prosecutor says that he has a real concern that Ms Simpson may be an unreliable witness, such that the Crown does not propose to call her.

I raised with the Crown prosecutor why Ms Simpson could not simply be called without conducting examination-in-chief and then making her available for cross-examination by the co-accused. The Crown says that, in circumstances in which he has no idea as to what evidence Ms Simpson might give and has concerns as to the reliability of her evidence, he does not consider that he is obliged to adopt that course and will not be adopting that course.

More significantly, the Crown prosecutor says that the concerns of Mr Millner about the Lucky Jade material, the evidence of commission and the agreements signed by the Korean holidaymakers, are misplaced. Specifically, the Crown says that it is not the Crown’s intention to put to the jury that Mr Millner received any special treatment. The Crown says that the payment of commission to a client who is responsible for substantial turnover is an ordinary aspect of commerce and that the Kim Ronaldson “nod” (per the Crown) is a recognition of that fact.

Further, the Crown says the fact that Mr Millner spent a substantial amount of time at the ABC premises and that he received commission payments are not tendered to show special treatment or favouritism. Indeed, on the Crown case, that is beside the point, in any event.

The Crown contentions are (1) that Mr Millner was in control of purchasing gold bullion on the accounts of those persons in 2012 and 2013; and (2) that Mr Millner used corporate vehicles to disguise his agency whilst he was a bankrupt. The Crown says that the second of those propositions appears to be uncontested following the evidence of Mr Moody. The first is contested.

The Crown prosecutor says that he intends to be quite specific in his address to the jury as to the purposes of the Lucky Jade evidence. The Crown highlights its opening to the effect that it was said:

The Crown opened on the basis that the fact that Mr Millner was bankrupt and not able to do a lot of these things shines a light on some of the arrangements.

Further, the Crown says that it is not the Crown’s intention to ask the jury to find that there was anything illegal or improper about ABC seeking a guarantee from traders, given the exigencies of the ABC supply chain, and that it will not be suggested that the agreements which were only signed by the Korean holidaymakers were fraudulent. The Crown says they are peculiar in that they are only signed by the Korean holidaymakers without any ABC attestation, but that does not mean that they were fraudulent. On the Crown case, the question of the legitimacy of the agreements is beside the point.

Finally, the Crown says that in response to Mr Millner’s submission about prejudice having regard to the ABC agreements with the Korean holidaymakers and that such prejudice could be cured by an agreed fact, the Crown would agree to a fact to be tendered to the effect that Mr Millner introduced the Korean holidaymakers to Janie Simpson at the Westin Hotel on the same date as appears, together with the signatures on the supply agreements.

When this application was first raised, Ms Hall pointed to her concerns about the use to which the Lucky Jade material might be made by the Crown and the inferences which might be available to the jury based on the evidence of Ms Ronaldson, the fact that Mr Millner was a bankrupt and the nature of the evidence relating to the agreements signed by the Korean holidaymakers under ABC letterhead. Those concerns were no doubt valid. However, it seems to me that, having regard to the Crown’s submissions, Mr Millner’s concerns now appear to be somewhat overstated; by that, I mean having regard to the uses to which the material will be made by the Crown and the direct statements by the Crown that it will not ask the jury to draw adverse inferences or suggest that the dock agreements are fraudulent.

I do not accept that the concerns raised by Ms Hall have been established. Forensic decisions may have been made but, having regard to the Crown concessions, the statements which the Crown is prepared to make and the proposed agreed fact, I am not satisfied that Mr Millner has established there is a substantial risk of miscarriage of justice if the jury is not discharged.

In the end, I understand that Ms Hall may have wanted Ms Simpson to be called to give evidence and it may be that the Crown might have called her for cross-examination but I am satisfied that that is a matter within the discretion of the Crown prosecutor having regard to the reasons identified as to why Ms Simpson is not being called.

I am not satisfied to the requisite standard that the jury should be discharged and the application is refused.